KRISTENSEN LLP

FIRST AMENDED COLLECTIVE & CLASS ACTION COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL

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John P. Kristensen (SBN 224132) Jesenia A. Martinez (SBN 316969) Jacob J. Ventura (SBN 315491) KRISTENSEN LLP 12540 Beatrice Street, Suite 200 Los Angeles, California 90066 Telephone: 310-507-7924 Fax: 310-507-7906 [email protected] [email protected] [email protected] Peter E. Garrell (SBN 155177) John M. Kennedy (SBN 156009) FORTIS LLP 650 Town Center Drive, Suite 1530 Costa Mesa, California 92626 Telephone: (714) 839-3800 Facsimile: (714) 795-2995 [email protected] [email protected] Attorneys for Plaintiffs

THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION

ASHLEIGH BLAIR, ADRIANA HERNANDEZ and JANE DOE 1, individually and on behalf of all others similarly situated, Plaintiff,

vs. DAVID BRIAN BAILEY, an individual; BOB MARTIN, INC. dba THE LIBRARY GENTLEMEN’S CLUB (Westminster), a California corporation; BAILEY FOOD AND BEVERAGE GROUP, LLC dba THE LIBRARY GENTLEMEN’S CLUB (Anaheim), a California limited liability

)))))))) ) ) ) )))))

Case No.: COLLECTIVE ACTION & CLASS ACTION FIRST AMENDED COMPLAINT FOR DAMAGES (1) Failure to Pay Minimum Wage,

29 U.S.C. § 203(d); (2) Failure to Pay Overtime Wages,

29 U.S.C. § 207; and (3) Unlawful Taking of Tips and

Diversion/Kickback in Violation of 29 U.S.C. § 203;

(4) Illegal Kickbacks, 29 C.F.R. § 531.35;

(5) Forced Tip Sharing, 29 C.F.R. §

Case 8:19-cv-01849-JFW-ADS Document 32 Filed 04/02/20 of 62 Page ID #:224

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corporation; CDBM REDLANDS, LLC dba THE LIBRARY GENTLEMEN’S CLUB (Redlands), a Nevada limited liability corporation; DOE MANAGERS 1-3; and DOES 4-100, inclusive, Defendants.

))))))))))))))))))))))))))))))

531.35 (6) Failure to Provide Meal Breaks in

Violation of Labor Code § 226.7; (7) Failure to Provide Rest Breaks in

Violation of Labor Code § 512; (8) Failure to Pay Wages in Violation

of Labor Code §§ 510 and 1194; (9) Failure to Pay All Wages Upon

Separation of Employment in Violation of Labor Code § 203;

(10) Failure to Provide Complete and Accurate Wage Statements in Violation of Labor Code § 226;

(11) Failure to Provide Reimbursement of Expenses in Violation of Labor Code § 2802;

(12) Failure to Keep Accurate Payroll Records in Violation of Labor Code § 1198.5 et seq.;

(13) Failure to Maintain Workers Compensation Insurance Coverage in Violation of Labor Code § 3700 et seq.;

(14) Violation of Labor Code § 2698, et seq.; and

(15) Violation of Business and Professions Code § 17200, et seq.

DEMAND FOR JURY TRIAL

Plaintiffs ASHLEIGH BLAIR, ADRIANA HERNANDEZ, and JANE DOE 1

(collectively, “Plaintiffs”) individually and on behalf of all others similarly situated,

allege the following upon information and belief, based upon investigation of

counsel, published reports, and personal knowledge:

I. NATURE OF THE ACTION

1. Plaintiffs, and all persons similarly situated, allege causes of action

against defendants DAVID BRIAN BAILEY, an individual, BOB MARTIN, INC.



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dba THE LIBRARY GENTLEMEN’S CLUB (Westminster), a California

corporation, BAILEY FOOD AND BEVERAGE GROUP, LLC dba THE LIBRARY

GENTLEMEN’S CLUB (Anaheim), a California limited liability corporation,

CDBM REDLANDS, LLC dba THE LIBRARY GENTLEMEN’S CLUB

(Redlands), a Nevada limited liability corporation and DOE MANAGERS 1-3, and

DOES 4 through 100, inclusive (collectively, “Defendants”) for damages.

2. Defendants required and/or permitted Plaintiffs, and all those similarly

situated, to work as exotic dancers at their adult entertainment clubs, each utilizing

the tradename: “The Library Gentlemen’s Club” in Westminster, Anaheim, and

Redlands, California. The three clubs are organized, purportedly, as separate

corporate entities. The Westminster club is incorporated via BOB MARTIN, INC., a

corporation. The Anaheim club is a limited liability corporation named after the one

member, defendant DAVID BRIAN BAILEY (“Defendant” or “Bailey”). That

corporate entity is registered with the California Secretary of State as BAILEY

FOOD AND BEVERAGE GROUP, LLC. Lastly, the Redlands club, also with

Bailey as the one member of the limited liability corporation is run under the auspices

of CDBM REDLANDS, LLC.

3. Plaintiffs worked at these clubs, run out of Orange County, California, in

excess of forty (40) hours per week, but Defendants refused to compensate Plaintiffs

at the applicable minimum wage and overtime rates under both Federal and

California law. In fact, Defendants refused to compensate Plaintiffs or those similarly

situated whatsoever for any hours worked. Plaintiffs, and those similarly situated,

were only compensated in the form of tips from the clubs’ patrons. Moreover,

Plaintiffs and those similarly situated were required to divide their tips with

Defendants and other employees who do not customarily receive tips. These were all

done under the auspices whereby Defendants violated the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. §§ 201, et seq. and/or the Tip Income Protection Act, 29 U.S.C.

§ 203 (“TIPA”) and by unlawfully seizing a portion of Plaintiffs’ tips. Therefore,



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Defendants have failed to compensate Plaintiffs at the federally-mandated minimum

wage rate.

4. Defendants’ conduct violates the FLSA, which requires non-exempt

employees to be compensated for their overtime work at a rate of one and one-half

times their regular rate of pay. See 29 U.S.C. § 207(a). Defendants also required

Plaintiffs to make certain payments to Defendants’ employees and others which

caused Plaintiffs’ wages to drop below the minimum wage and applicable overtime

wage, thereby constituting an illegal deduction under the FLSA. As a result of

Defendants’ violation of the FLSA, Plaintiffs seek all unpaid minimum and overtime

wages, recovery of unlawful deductions, liquidated damages, interest, and attorneys’

fees and costs pursuant to 29 U.S.C. § 216.

5. During their time being employed by Defendants, Plaintiffs, and those

similarly situated, were denied minimum wage payments and denied overtime as part

of Defendants’ scheme to classify Plaintiffs and other dancers as “independent

contractors.” As the Department of Labor explained in a recent Administrative

Interpretation: Misclassification of employees as independent contractors is found in an increasing number of workplaces in the United States, in part reflecting larger restructuring of business organizations. When employers improperly classify employees as independent contractors, the employees may not receive important workplace protections such as the minimum wage, overtime compensation, unemployment insurance, and workers’ compensation. Misclassification also results in lower tax revenues for government and an uneven playing field for employers who properly classify their workers. Although independent contracting relationships can be advantageous for workers and businesses, some employees may be intentionally misclassified as a means to cut costs and avoid compliance with labor laws.1

1 See DOL Admin. Interp. No. 2015-1, at

http://www.dol.gov/whd/workers/Misclassification/AI- 2015_1.pdf.


http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.pdf

http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.pdf


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6. As alleged in more detail below, that is exactly what Defendants are

doing in this case.

7. Plaintiffs worked at Defendants’ three “The Library Gentlemen’s Club”

clubs in the past three years.

8. Defendants failed to pay Plaintiffs, and those similarly situated,

minimum wages and overtime wages for all hours worked in violation of 29 U.S.C.

§§ 206 and 207 of the FLSA.

9. Defendants’ conduct violates the FLSA, which requires non-exempt

employees to be compensated for their overtime work at a rate of one and one-half

times their regular rate of pay. See 29 U.S.C. § 207(a).

10. Defendants’ practice of failing to pay tipped employees pursuant to

29 U.S.C. § 203(m), violates the FLSA’s minimum wage provision. See 29 U.S.C.

§ 206.

11. Defendants forced Plaintiffs and those similarly situated to pay House

Fees just to work which further violated the FLSA.

12. Plaintiffs bring a collective action to recover the unpaid overtime

compensation and minimum wages, stolen tips and illegal house fees owed to them

individually and on behalf of all other similarly situated employees, current and

former, of Defendants in California. Members of the Collective Action are

hereinafter referred to as “FLSA Collective Members.”

13. As a result of Defendants’ violations, Plaintiffs and the FLSA

Collective Members seek to recover double damages for failure to pay minimum

wage, overtime liquidated damages, recover diverted income, interest, and attorneys’

fees.

14. This matter is also brought as a class action pursuant to Cal. Lab. Code

§§ 201, 202, 203, 204, 210, 218, 218.5, 218.6, 221, 226, 226.2, 226.3, 226.7, 351,

510, 511, 512, 1185, 1194, 1194.2, 1197, 1198, 1198.5, 2800, 2802, 3700; the Code



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of Regulations, Title 8, section 11000 et seq.; provisions of the Industrial Welfare

Commission (IWC) Wage Order(s); Cal. Bus. & Prof. Code §§ 17200, et seq.

(Unfair Competition Law (“UCL”)); and Cal. Lab. Code §§ 2698, et seq. (the Private

Attorneys General Act of 2004 (“PAGA”)). Members of the Class Action are

hereinafter sometimes referred to as California Class Members.

15. Under Dynamex Operations W v. Superior Court, 4 Cal.5th 903, 935,

(2018), reh’g denied (June 20, 2018), the California Supreme Court held that

workers are considered employees “unless the hiring entity establishes (A) that the

worker is free from the control and direction of the hiring entity in connection with

the performance of the work, both under the contract for the performance of the

work and in fact, (B) that the worker performs work that is outside the usual course

of the hiring entity’s business, and (C) that the worker is customarily engaged in an

independently established trade, occupation, or business.”

16. The first part of the Dynamex test cannot be met by Defendants.

Defendants have complete control over the exotic dancers. For example, exotic

dancers who are classified by Defendants as independent contractors:

a. Have a set price for the dances they perform that is dictated by the

employer.

b. Must participate in promotions, sales, and other contests and policies set

by the employer.

c. Must perform for a minimum number of hours each week or they will be

fired.

d. Have a strict set of rules regarding dress, hygiene, work hours,

promotion participation and other rules which if not followed result in

termination of employment.

17. The second and third parts of the Dynamex test cannot be met by

Defendants as well. The employer owns and operates strip clubs. The strip clubs

cannot function without exotic dancers. The usual course of the employer’s business



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is providing adult entertainment to patrons of their clubs. In fact, the employer sets

“prices” for the adult entertainment. The most significant revenue generated by the

employer is based off the work performed by the exotic dancers. Therefore, even if

there was no control over the exotic dancers, the work performed by them is in the

middle of the usual course of the hiring entities’ business.

18. Therefore because at least one, if not all three, of the Dynamex factors

cannot be met by Defendants, the exotic dancers are being misclassified as

independent contractors. Further, Dynamex has now been codified and expanded by

AB5 which became law in California on September 18, 2019.

19. Plaintiffs are informed and believe and based thereon allege that

Defendants acted intentionally and with deliberate indifference and conscious

disregard to the rights of all dancers for reasons including but not limited to: (1) by

misclassifying them as independent contractors; (2) by failing to pay them all meal

period wages and rest break wages; (3) by failing to pay them all minimum and

overtime wages; (4) by failing to pay them all wages due and owing upon

termination of employment; (5) by failing to provide them accurate wage statements;

(6) by failing to reimburse business expenses; (7) failing to have and maintain

workers compensation insurance coverage; and (8) by engaging in unfair business

practices.

II. NATURE OF THE ACTION

20. Plaintiffs are individual adult residents of the State of California.

Plaintiffs were employed by Defendants and qualify as “employees” of Defendants

as defined by the FLSA, 29 U.S.C. § 203(e)(1). Plaintiff Ashleigh Blair provided her

consent to the original Complaint in this action. See Dkt. 1.

21. Plaintiff Adriana Hernandez was employed by Defendants and qualifies

as an “employee” of Defendants as defined by the FLSA, 29 U.S.C. § 203(e)(1). Her

opt-in consent to this action is attached hereto as Exhibit 1.

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22. Plaintiff Jane Doe 1 was employed by Defendants and qualifies as an

“employee” of Defendants as defined by the FLSA, 29 U.S.C. § 203(e)(1). Her opt-

in consent to this action is attached hereto as Exhibit 2.

23. Plaintiff Ashleigh Blair is an individual residing in the State of

California, County of Riverside. Defendants employed Ms. Blair as an independent

contractor dancer within the past one (1) year period of the filing of the original

Complaint as well as during the Class Period. (“Class Period” as defined herein

means July 15, 2015 through the date of preliminary approval or judgment as the

case may be.)

24. Plaintiff Adriana Hernandez is an individual residing in the State of

California, County of Los Angeles. Defendants employed Plaintiff Adriana

Hernandez as an independent contractor dancer within the past one (1) year period as

well as during the Class Period.

25. Plaintiff Jane Doe 1 is an individual residing in the State of California,

County of Los Angeles. Defendant employed Plaintiff Jane Doe 1 as an independent

contractor dancer within the past one (1) year period as well as during the Class

Period.

26. Plaintiff Jane Doe 1 sues under a fictitious name due to the highly

sensitive and personal details about Plaintiffs in this action and because: (1) there is a

significant social stigma associated with nude and semi-nude dancing that exotic

dancers, also known as “strippers” perform; (2) there are risks inherent in working as

an exotic dancer including risk of injury by current or former customers of

Defendants if an exotic dancer’s name or address is disclosed; (3) Plaintiff Jane Doe

1 would be hesitant to maintain this action enforcing fundamental employee rights if

her name were to be forever associated with Defendants’ clubs, which could affect

her prospects for future employment by others; and (4) Plaintiff Jane Doe 1 wishes to

protect her rights to privacy. Plaintiff Jane Doe 1’s concerns are reasonable and

justified. At the clubs, it is customary for the exotic dancers to use pseudonyms or



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stage names for privacy and personal safety reasons. See generally Does I thru XXIII

v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000) (“In this circuit,

we allow parties to use pseudonyms in the ‘unusual case’ when nondisclosure or the

party’s identity ‘is necessary . . . . To protect a person from harassment, injury,

ridicule or personal embarrassment.’ . . . . We join our sister circuits and hold that a

party may preserve his or her anonymity in judicial proceedings in special

circumstances when the party’s need for anonymity outweighs prejudice to the

opposing party and the public’s interest in knowing the party’s identity.”).

27. Plaintiffs intend to file additional Consents for other individuals to

become Party Plaintiffs, executed by similarly situated individuals as they may elect.

Many similarly situated individuals, however, will be afraid to join the lawsuit as

party plaintiffs because of reasonable fears relating to privacy, personal safety,

and/or the potential for retaliation, in order to allow them to pursue their rights

without jeopardizing their privacy, personal safety or income, Plaintiffs pray that the

Court permit Party Plaintiffs to keep their names and addresses concealed although

same will be provided to Defendants under a protective order.

28. Notwithstanding, that Ms. Blair and Ms. Hernandez do not have the

same fears that Plaintiff Jane Doe 1 has, does not diminish the fears that Plaintiff

Jane Doe 1 has and others may have. Further there is no prejudice to Defendants as

the Doe names will be revealed to counsel and in any event, Ms. Blair and Ms.

Hernandez are sufficient class representatives to proceed with the action.

29. Bailey is an individual who resides in Orange County, California. He is

the owner, controlling shareholder, and exerts day-to-day management over the

defendant entities BOB MARTIN, INC. dba THE LIBRARY GENTLEMEN’S

CLUB (Westminster), a California corporation, BAILEY FOOD AND BEVERAGE

GROUP, LLC dba THE LIBRARY GENTLEMEN’S CLUB (Anaheim), a

California limited liability corporation, and CDBM REDLANDS, LLC dba THE

LIBRARY GENTLEMEN’S CLUB (Redlands) through which he exerts operational



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and management control over the three Library Gentlemen’s Clubs, respectively.

Bailey, individually, also exerts day-to-day management and operational control

over the three Library Gentlemen’s Clubs is frequently present at, and owns, directs,

controls and manages the operations at the three clubs. Pursuant to an across the

board, corporate wide policy dictated and enforced by Defendants, including Bailey,

as well as the other Defendants herein, refuse to pay dancers-entertainers minimum

wage and earned overtime, by mischaracterizing them as “independent contractors.”

Bailey is an “employer” or “joint employer” within the meaning of the FLSA. Upon

information and belief, Bailey may be served with process at 18935 Evening Breeze

Circle, Huntington Beach, California 92649 or via sub-service at any of the three

Library Gentlemen’s Clubs. Bailey is the registered agent for service of process for

BOB MARTIN, INC. dba THE LIBRARY GENTLEMEN’S CLUB (Westminster)

and the managing member of both BAILEY FOOD AND BEVERAGE GROUP,

LLC dba THE LIBRARY GENTLEMEN’S CLUB (Anaheim) and CDBM

REDLANS, LLC dba THE LIBRARY GENTLEMEN’S CLUB (Redlands).

30. Defendant BOB MARTIN, INC. dba THE LIBRARY GENTLEMEN’S

CLUB (“Westminster”) is a California corporation with its principal place of

business at 7000 Garden Grove Boulevard, Westminster, California 92683. At all

times mentioned herein, Westminster was an “employer” or “joint employer” of

Plaintiffs within the meaning of the FLSA, 29 U.S.C. § 203 (d) and (g).

Westminster’s agent for service of process is Bailey and is identified to be located,

via its filings with the California Secretary of State at 7000 Garden Grove

Boulevard, Westminster, California 92683.

31. Defendant CDBM REDLANS, LLC dba THE LIBRARY

GENTLEMEN’S CLUB (“Redlands”) is a Nevada limited liability corporation with

its principal place of business at 7000 Garden Grove Boulevard, Westminster,

California 92683. At all times mentioned herein, Redlands was an “employer” or

“joint employer” of Plaintiffs within the meaning of the FLSA, 29 U.S.C. § 203 (d)



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and (g). Redlands’ agent for service of process is Alex M. Weingarten and is

identified to be located, via with filings with the California Secretary of State at 2049

Century Park East, Suite 2300, Los Angeles, California 90067.

32. DOE MANAGERS 1-3 are the managers/owners who control the

policies and enforce the policies related to employment at the Library Gentlemen’s

Clubs.

33. Defendants’ entire business model was based on taking advantage of

Plaintiffs by exploiting them and forcing them to participate in an invalid tip-pool

with Defendants and employees of Defendants.

34. The true names, capacities or involvement, whether individual,

corporate, governmental or associate, of the Defendants named herein as DOE

MANAGERS 1-3 and DOES 4 through 100, inclusive are unknown to Plaintiffs who

therefore sue said Defendants by such fictitious names. Plaintiffs pray for leave to

amend this Complaint to show their true names and capacities when the same have

been finally determined. Plaintiffs are informed and believe, and upon such

information and belief allege thereon, that each of the Defendants designated herein

as DOE is negligently, intentionally, strictly liable or otherwise legally responsible in

some manner for the events and happenings herein referred to, and negligently,

strictly liable intentionally or otherwise caused injury and damages proximately

thereby to Plaintiffs, as is hereinafter alleged.

35. Plaintiffs are informed and believe that, at all relevant times herein,

Defendants engaged in the acts alleged herein and/or condoned, permitted,

authorized, and/or ratified the conduct of its employees and agents, and other

Defendants and are vicariously or strictly liable for the wrongful conduct of its

employees and agents as alleged herein.

36. Plaintiffs are informed and believe, and on that basis allege that, each of

the Defendants acted, in all respects pertinent to this action, as the agent or employee

of each other, and carried out a joint scheme, business plan, or policy in all respect



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thereto and, therefore, the acts of each of these Defendants are legally attributable to

the other Defendants, and that these Defendants, in all respects, acted as employer

and/or joint employers of Plaintiffs in that each of them exercised control over her

tips and the establishment’s forced tip pooling procedures.

37. Plaintiffs are informed and believe, and on that basis allege that, at all

relevant times, each and every Defendant has been the agent, employee,

representative, servant, master, employer, owner, agent, joint venture, and alter ego

of each of the other and each was acting within the course and scope of his or her

ownership, agency, service, joint venture and employment.

38. At all times mentioned herein, each and every Defendant was the

successor of the other and each assumes the responsibility for the acts and omissions

of all other Defendants.

III. COVERAGE

39. At all material times, Defendants have been employers or “joint

employers” within the meaning of the FLSA. 29 U.S.C. § 203(d).

40. At all material times, Defendants have operated as a “single enterprise”

within the meaning of the FLSA. 29 U.S.C. § 203(r)(1) and 29 C.F.R. § 1620.7. That

is, Defendants perform related activities through unified operation and common

control for a common business purpose. See Brennan v. Arnheim and Neely, Inc.,

410 U.S. 512, 515 (1973); Chao v. A-One Med. Servs. Inc., 346 F.3d 908, 914-915

(9th Cir. 2003).

41. At all material times, Defendants have been an enterprise in commerce

or in the production of goods for commerce within the meaning of 29 U.S.C. §

203(r)(1) of the FLSA because they have had employees engaged in commerce and

sell liquor at their club which has travelled in interstate commerce. Moreover,

because of Defendants’ interrelated activities, they function in interstate commerce.

29 U.S.C. § 203(s)(1).

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42. Furthermore, Defendants have had, and continue to have, an annual

gross business volume in excess of the statutory standard.

43. At all material times during the three years prior to the filing of this

action, Defendants categorized all dancers/entertainers employed at any of the three

The Library Gentlemen’s Clubs as “independent contractors” and have failed and

refused to pay wages or compensation to such dancers/entertainers. Plaintiffs were

individual employees who engaged in commerce or in the production of goods for

commerce as required by 29 USC §§ 206-207.

44. The primary job duties of the named Plaintiffs, and all other dancers

similarly situated, consisted primarily of dancing on stage during a stage rotation,

performing personal dances (also called “lap dances” “table dances” or “private

dances” for customers, and performing in “VIP” areas upon customer request).

45. Pursuant to the directions of the Defendants and/or their agents,

Defendants require entertainers to audition in order to be hired; however, an

entertainer’s physical appearance and not any level of dance, performance, or sales

skill determines her suitability to perform at Defendants’ clubs. Indeed, no prior

experience or training is required to be hired as a dancer-entertainer.

46. At all times relevant to this action, Plaintiffs (and all those similarly

situated) were subject to corporate-wide, uniform written rules, guidelines, and

policies which were established by Defendants and their agents. The rules,

guidelines, and policies governed entertainers’ conduct at all of the clubs mentioned

herein.

47. Defendants exercised a great degree of operational control and

management over The Library Gentlemen’s Clubs particularly in terms of the

conditions of employment applicable to dancers/entertainers.

48. Bailey is the owner, manager, and president of The Library

Gentlemen’s Clubs in Westminster, Anaheim, and Redlands.

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49. As the owner, operator, and manager of Westminster, Anaheim, and

Redlands, Bailey employed the Plaintiffs, as employees who danced for and

entertained customers.

50. Bailey controlled the nature, pay structure, and employment relationship

of Plaintiffs, at The Library Gentlemen’s Clubs.

51. Further, Bailey had, at all times relevant to this lawsuit, the authority to

hire and fire employees at The Library Gentlemen’s Clubs, the authority to direct

and supervise the work of employees, the authority to sign on the businesses’

checking accounts, including payroll accounts, and the authority to make decisions

regarding employee compensation and capital expenditures. Additionally, Bailey

was responsible for the day-to-day affairs of the Library Gentlemen’s Clubs. In

particular, he was responsible for determining whether the Library Gentlemen’s

Clubs complied with the FLSA and the California Labor Code.

52. As such, pursuant to 29 U.S.C. § 203(d), Bailey acted directly or

indirectly in the interest of Plaintiffs’ employment as their employer, which makes

them each individually liable under the FLSA.

VI. VENUE AND JURISDICTION

53. This Court has jurisdiction over the subject matter of this action under

28 U.S.C. § 1331 because this action arises under the FLSA, 29 U.S.C. §§ 201, et

seq.

54. Venue is proper in this District because all or a substantial portion of

the events forming the basis of this action occurred in this District. Defendants’ clubs

are located in this District and Plaintiff, and those similarly situated worked in this

District.

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55. This matter is properly maintainable as a “hybrid” collective action

pursuant to FLSA, 29 U.S.C. § 216(b) and as a Class under Rule 23 of the Federal

Rules of Civil Procedure. Furthermore, some California Class Members are residents

of other states, both diversity jurisdiction and the damages threshold under the Class

Action Fairness Act of 2005 (“CAFA”) are present, and this Court has jurisdiction.

V. ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

(AGAINST ALL DEFENDANTS)

A. FACTUAL ALLEGATIONS

56. Defendants operate adult entertainment clubs out of Orange County,

California under the tradename of The Library Gentlemen’s Clubs.

57. Defendants employ exotic dancers at its aforementioned locations.

58. Plaintiffs were previously employed as exotic dancers at Defendants'

adult entertainment clubs called “The Library Gentlemen’s Club.”

59. Plaintiffs, and those similarly situated, worked on a regular basis for

Defendants’ establishments located in Orange County known as “The Library

Gentlemen’s Club.”

60. The job of an exotic dancer is to perform on stage, perform table

dancers, and entertain customers in a “VIP” area of the Defendants’ clubs.

61. Plaintiffs were compensated exclusively through tips from Defendants’

customers. That is, Defendants did not pay Plaintiffs whatsoever for any hours

worked at their establishments.

62. Furthermore, Defendants charged the Plaintiffs a “house fee” per shift

worked. Defendants also required Plaintiffs to share their tips with other non-service

employees who do not customarily receive tips, including the managers, disc

jockeys, and the bouncers.

63. Defendants illegally classified the dancers as independent contractors.

However, at all times, Plaintiffs, were employees of Defendants.

///



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64. Defendants hired/fired, issued pay, supervised, directed, disciplined,

scheduled and performed all other duties generally associated with that of an

employer with regard to the dancers.

65. In addition, Defendants instructed the dancers about when, where, and

how they were to perform their work.

66. Defendants exercised significant control over the misclassified

Plaintiffs, and the Collective and the Class, through written and unwritten policies

and procedures. The following further demonstrates the exotic dancers’ status as

employees:

a. Defendants have the sole right to hire and fire the dancers;

b. Defendants required dancers to complete an employee application

as a prerequisite to their employment at The Library Gentlemen’s

Clubs;

c. Defendants made the decision not to pay overtime;

d. Defendants provide the dancers with music equipment and a

performing stage;

e. Defendants supervise the dancers, and required Plaintiffs and

those similarly situated to dance on stage according to a stage

rotation established by the Defendants or their agents, including

the Disc Jockey (“DJ”), dancers, including Plaintiffs were

required to dance when their name was called, and dancers were

not allowed to choose which songs were played;

f. Plaintiffs have not made a financial investment with or in

Defendants’ business; Defendants financed all advertising and

marketing efforts undertaken on behalf of The Library

Gentleman’s Clubs and made all capital investments in the

facilities, maintenance, sound system, lights, food, beverage, and

inventory, and made all hiring decisions regarding wait staff,



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security, entertainers, managerial, and other employees at The

Library Gentlemen’s Clubs; Plaintiffs and those similarly situated

were not allowed by Defendants or their agents to choose the

songs that were played when they danced;

g. Defendants schedule dancers, and required dancers to show up for

work at a specific time, with a schedule issued in advance and as

such have sole control over their opportunity for profit;

h. Defendants suspended dancers for violations of their rules of

conduct, including issuing fines to dancers who came to work

late;

i. In order to perform their job, dancers are required to pay

significant “house fees” to Defendants, which are disguised as

“locker fees” for renting a locker while working;

j. Defendants set the prices for house fees, dances, and tip outs; the

price for a personal dance was the same regardless of which

entertainer performed the dance, and Plaintiffs, and those

similarly situated, were not allowed to charge a different price

than the price established by Defendants; the prices for personal

dances (“lap dances”) or private room (“VIP”) dances was also set

by the Defendants and was the same regardless of which dancer

was performing a personal dance or spending time in the VIP

rooms with a customer;

k. In addition to house fees, pursuant to the directions of the

Defendants and/or their agents, Plaintiffs and all other

dancers/entertainers at The Library Gentlemen’s Clubs were also

required to pay “tip outs” each night they worked;

l. The dancers were hired as permanent employees and many have

worked for Defendants for years; and



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m. Little or no skill was required for the work Plaintiffs or those

similarly situated was required to perform at Defendants’ clubs.

67. Defendants misclassified Plaintiffs, and those similarly situated, as

independent contractors to avoid Defendants’ obligations to pay them pursuant to the

FLSA, and Plaintiffs were solely dependent upon customers’ tips, making their

opportunity for profit or loss a function of how much money customers have and are

willing to spend and how much Defendants required Plaintiffs to pay in order to

work.

68. At all times pertinent to this action, Defendants regulated entertainers’

attire and interactions with customers.

69. Pursuant to the direction of the Defendants and/or their agents,

Plaintiffs and all other dancers/entertainers at the Defendants’ clubs were required to

show up for work at a specific time. If entertainers are late for work, fail to appear

for a scheduled shift, or are deemed to have violated any of the Club’s rules, they are

charged additional fees or fines.

70. Plaintiffs, and the members of the Collective and Class, Plaintiffs seek

to represent, have been subject to a variety of these fees and fines during the last

three years; the fees and fines constitute unlawful “kickbacks” to the employer

within the meaning of the FLSA, and Plaintiffs and the Collective and the Class are

entitled to restitution of all such fees and fines.

71. Defendants’ primary business purpose is to make money; they do so by

attracting customers who wish to see women nude or in various stages of undress.

The services performed by dancers/entertainers are integral to the success of the

Defendants and The Library Gentlemen’s Clubs.

///

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72. Pursuant to the directions of the Defendants and/or their agents,

entertainers at any of The Library Gentlemen’s Clubs were not allowed to hire

subcontractors to perform their duties for them. The right to dance as an entertainer

at Defendants’ clubs was a personal right, and only people hired by Defendants’

managerial staff were allowed to perform at Defendants’ clubs.

73. Plaintiffs worked over forty hours in some weeks they worked for

Defendants.

74. Defendants have never paid Plaintiffs any amount as wages whatsoever,

and have instead unlawfully required Plaintiffs to pay for the privilege of working.

75. The only source of monies received by Plaintiffs relative to their

employment with Defendants came in the form of gratuities received directly from

customers, a portion of which they were required to pay to Defendants.

76. Although Plaintiffs were required to, and do in fact frequently work

more than forty (40) hours per workweek, they were not compensated at the FLSA

mandated time-and-a-half rate for hours in excess of forty (40) per workweek. In

fact, they received no compensation whatsoever from Defendants and thus,

Defendants violate the minimum wage requirement of FLSA. See 29 U.S.C. § 206.

77. Defendants’ method of paying Plaintiffs in violation of the FLSA was

willful and was not based on a good faith and reasonable belief that their conduct

complied with the FLSA. Defendants misclassified Plaintiffs with the sole intent to

avoid paying them in accordance to the FLSA; the fees and fines described herein

constitute unlawful “kickbacks” to the employer within the meaning of the FLSA,

and Plaintiffs are entitled to restitution of such fines and fees.

78. Defendants never took possession of the payments made to Plaintiffs or

those similarly situated.

79. Defendants failed to include Plaintiffs’ earnings, or those earnings from

those similarly situated to Plaintiffs, in Defendants’ gross receipts for tax or

accounting purposes.



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80. The FLSA’s “economic realities” test has existed for decades, as have

the FLSA requirements of paying minimum wage and overtime to employees.

81. Defendants’ failure to comply with the FLSA in all respects, including

the misclassification scheme at issue in this lawsuit, is, and was, willful.

82. Defendants knew, or showed reckless disregard for the fact that they

misclassified dancers as independent contractors, and accordingly failed to pay

dancers the minimum wage and overtime wage at the required rate under the FLSA

and unlawfully deducted tip-outs and “house fees” from their pay.

83. The Plaintiffs, and those they seek to represent, were not covered by

any minimum or overtime wage exemption contained in the FLSA.

84. Defendants failed to keep adequate records of any work hours and pay

to Plaintiffs and those similarly situated in violation of section 211(c) of the FLSA.

See 29 U.S.C. § 211(c).

85. Federal law mandates that an employer is required to keep for three

years all payroll records and other records containing, among other things, the

following information:

a. The time of day and day of week on which the employees' work

week begins;

b. The regular hourly rate of pay for any workweek in which

overtime compensation is due under section 7(a) of the FLSA;

c. An explanation of the basis of pay by indicating the monetary

amount paid on a per hour, per day, per week, or other basis;

d. The amount and nature of each payment which, pursuant to

section 7(e) of the FLSA, is excluded from the “regular rate”;

e. The hours worked each workday and total hours worked each

workweek;

///

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f. The total daily or weekly straight time earnings or wages due for

hours worked during the workday or workweek, exclusive of

premium overtime compensation;

g. The total premium for overtime hours. This amount excludes the

straight-time earnings for overtime hours recorded under this

section;

h. The total additions to or deductions from wages paid each pay

period including employee purchase orders or wage assignments;

i. The dates, amounts, and nature of the items which make up the

total additions and deductions;

j. The total wages paid each pay period; and

k. The date of payment and the pay period covered by payment.

29 C.F.R. §§ 516.2, 516.5.

86. Defendants have not complied with federal law and have failed to

maintain such records with respect to the Plaintiffs and those similarly situated.

Because Defendants’ records are inaccurate and/or inadequate, Plaintiffs can meet

their burden under the FLSA by proving that they, in fact, performed work for which

they were improperly compensated, and produce sufficient evidence to show the

amount and extent of their work “as a matter of a just and reasonable inference.” See,

e.g., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). Plaintiffs seek

to put Defendants on notice that they intend to rely on Mt. Clemens Pottery Co. to

provide the extent of their unpaid work.

87. Even if payments from patrons were deemed to be dancers’ “wages,”

dancers have not been permitted to retain the full amount of these wages, since

Defendants have subtracted various fines, charges, and fees from these amounts (as

well as requiring dancers to share them with other employees of Defendants). For

example presently, Defendants charge a “Bag Fee” for working at The Library

Gentlemen’s Clubs and specifically $40 before 9:00 p.m., more after 9:00 p.m. and



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an extra $20.00 depending on whether the dancer has a municipal license to perform.

The Library Gentlemen’s Clubs thereafter keep an additional $20.00 per hour until a

total of $80.00 has been paid to The Library Gentlemen’s Clubs. If a dancer

performed a VIP dance which costs the customer $100.00, The Library Gentlemen’s

Clubs require the dancer to pay $20.00. For a half-hour dance which costs the

customer $250.00, The Library Gentlemen’s Clubs require the dancer to pay $50.00

All monies are collected by the dancer and are characterized as a gratuity but The

Library Gentlemen’s Clubs require the dancer to then pay a portion of the gratuity to

The Library Gentlemen’s Clubs in violation of Cal. Lab. Code § 350(e).

88. Based on their misclassification as independent contractors, dancers

have been required to bear expenses of their employment, including expenses for

wardrobe, foot wear, make-up and grooming that meet Defendants’ requirements.

89. Defendants have failed to provide dancers with itemized wage

statements showing their hours worked, total wages earned, all deductions from

wages, and all other information required per Cal. Lab. Code § 226(a).

90. Defendants have also failed to keep dancers’ records as required by Cal.

Lab. Code § 1174.5.

91. Defendants have failed to have and maintain workers compensation

insurance under Cal. Lab. Code § 3700.

92. As a result of their failure to pay Plaintiffs, and those similarly situated,

minimum wage, Defendants have also failed to pay dancers their wages when due.

93. On or about July 17, 2019, Plaintiffs provided Notice to the PAGA

Administrator via online submission and certified mail, and having received no

response from the Attorney General of the State of California, Plaintiffs are

proceeding as deputized attorney generals to pursue this action.

B. INDIVIDUAL LIABILITY UNDER THE FLSA

94. In Boucher v. Shaw, the U.S. Court of Appeals for the Ninth Circuit

held that individuals can be liable for FLSA violations under an expansive



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interpretation of “employer.” Boucher v. Shaw, 572 F.3d 1087, 1088 (9th Cir. 2009).

The FLSA defines “employer” as “any person acting directly or indirectly in the

interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The Ninth

Circuit stated that the definition of “employer” under FLSA is not limited by the

common law concept of “employer” but “is to be given an expansive interpretation

in order to effectuate the FLSA’s broad remedial purposes.”

95. Where an individual exercises “control over the nature and structure of

the employment relationship,” or “economic control” over the relationship, that

individual is an employer within the meaning of the FLSA, and is subject to liability.

Lambert v. Ackerley, 180 F.3d 997(9th Cir. 1999). The Ninth Circuit highlighted

factors related to “economic control,” which included ownership interest, operational

control of significant aspects of the day-to-day functions, the power to hire and fire

employees, determine salaries, and the responsibility to maintain employment

records.

96. Bailey is individually liable for failing to pay Plaintiffs and those

similarly situated their wages. The actual identities of DOE Managers 1-3 and DOES

4 through 100 are unknown at this time.

VII. COLLECTIVE ACTION ALLEGATIONS

97. Plaintiffs hereby incorporate by reference and re-allege each and every

allegation set forth in each and every preceding paragraph of this Complaint, as

though fully set forth herein.

98. Plaintiffs bring this action as an FLSA Collective Action pursuant to

29 U.S.C. § 216(b) on behalf of all persons who were or are employed by

Defendants as exotic dancers at any time during the three years prior to the

commencement of this action to present.

99. Plaintiffs have actual knowledge that FLSA Collective Members have

also been denied overtime pay for hours worked over forty (40) hours per workweek,

forced to pay illegal house fees, had gratuities and tips pooled and/or illegally



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diverted and have been denied pay at the federally mandated minimum wage rate.

That is, Plaintiffs worked with other dancers at each of The Library Gentlemen’s

Clubs. As such, they have first-hand personal knowledge of the same pay violations

throughout Defendants’ clubs. Furthermore, other exotic dancers at Defendants’

three clubs called The Library Gentlemen’s Club have shared with them similar pay

violation experiences as those described in this Complaint.

100. Other employees similarly situated to the Plaintiffs work or have

worked at Defendants’ three clubs called The Library Gentlemen’s Club but were

not paid overtime at the rate of one and one-half their regular rate when those hours

exceeded forty (40) hours per workweek. The other similarly situated dancers were

forced to pay Defendants “house fees” to work and had their tips pooled or diverted.

Furthermore, these same employees were denied pay at the federally mandated

minimum wage rate.

101. Although Defendants permitted and/or required the FLSA Collective

Members to work in excess of forty (40) hours per workweek, Defendants have

denied them full compensation for their hours worked over forty (40). Defendants

have also denied them full compensation at the federally mandated minimum wage

rate.

102. FLSA Collective Members perform or have performed the same or

similar work as the Plaintiffs—dancing and entertaining at Defendants’ clubs.

103. FLSA Collective Members regularly work or have worked in excess of

forty (40) hours during a workweek.

104. The FLSA Collective Members were all subject to the same terms and

conditions of employment, and the same degree of control, direction, supervision

imposed by Defendants.

105. FLSA Collective Members perform or have performed the same or

similar work as the Plaintiffs.

///



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106. FLSA Collective Members regularly work or have worked in excess of

forty (40) hours during a workweek.

107. FLSA Collective Members regularly work or have worked and did not

receive minimum wage.

108. FLSA Collective Members regularly were forced to pay “house fees” in

order to work.

109. FLSA Collective Members regularly had their tips both pooled and

diverted.

110. FLSA Collective Members are not exempt from receiving overtime

and/or pay at the federally mandated minimum wage rate under the FLSA.

111. As such, FLSA Collective Members are similar to Plaintiffs in terms of

job duties, pay structure, misclassification as independent contractors and/or the

denial of overtime and minimum wage.

112. Defendants’ failure to pay overtime compensation and hours worked at

the minimum wage rate required by the FLSA results from generally applicable

policies or practices, and does not depend on the personal circumstances of the

FLSA Collective Members.

113. The experiences of the Plaintiffs, with respect to their pay, are typical of

the experiences of the FLSA Collective Members.

114. The specific job titles or precise job responsibilities of each FLSA Class

Member does not prevent collective treatment.

115. All FLSA Collective Members, irrespective of their particular job

requirements, are entitled to overtime compensation for hours worked in excess of

forty (40) during a workweek.

116. All FLSA Collective Members, irrespective of their particular job

requirements, are entitled to compensation for hours worked at the federally

mandated minimum wage rate.

///



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117. Although the exact amount of damages may vary among FLSA

Collective Members, the damages for the FLSA Collective Members can be easily

calculated by a simple formula. The claims of all FLSA Collective Members arise

from a common nucleus of facts. Liability is based on a systematic course of

wrongful conduct by the Defendants that caused harm to all FLSA Collective

Members.

118. Named Plaintiffs are “similarly situated” to the collective of persons

they seek to represent, and will adequately represent the interests of the collective.

119. Plaintiffs have hired counsel experienced in labor and employment

cases and collective actions under 29 U.S.C. 216(b) who will adequately represent

the collective.

120. As such, Plaintiffs bring their FLSA claims as a collective action on

behalf of the following class (“FLSA Collective”):

All of Defendants’ current and former exotic dancers

who worked at one of the three The Library

Gentlemen’s Clubs at any time starting three years

before July 17, 2019.

VIII. CLASS ALLEGATIONS

121. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of

Civil Procedure and/or other applicable law, on behalf of themselves and all others

similarly situated, as members of the proposed class (“the Class”) defined as follows:

The group of individuals who performed as

Entertainers as defined below and in conjunction

therewith have provided topless, semi-nude and/or

bikini entertainment for customers during the Class

Period while classified as independent contractors

during any portion of the foregoing time period at the

Clubs owned by Bob Martin Inc. dba The Library



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Gentlemen’s Club (Westminster); Bailey Food and

Beverage Group, LLC dba The Library Gentlemen’s

Club (Anaheim); CBDM Redlands, Inc. dba The

Library Gentlemen’s Club (Redlands) during the

Class Period.

122. Excluded from the Class are governmental entities, Defendants, any

entity in which Defendants have a controlling interest, and Defendants’ officers,

directors, affiliates, legal representatives, employees, co-conspirators, successors,

subsidiaries, and assigns. Also excluded from the Class are any judges, justices or

judicial officers presiding over this matter and the members of their immediate

families and judicial staff.

123. Plaintiffs estimate there are approximately two thousand (2,000)

members of the Class but do not know the exact number of persons in the Class,

making joinder of all these actions impracticable.

124. The identity of the individual members is ascertainable through

Defendants’ and/or Defendants’ agents’ records or by public notice.

125. There is a well-defined community of interest in the questions of law

and fact involved affecting the members of the Class.

126. Plaintiffs will fairly and adequately protect the interest of the Class.

127. Plaintiffs retained counsel experienced in employment class action

litigation with in depth knowledge of dancer class action litigation.

128. Plaintiffs’ claims are typical of the claims of the Class, which all arise

from the same operative facts involving Defendants’ practices.

129. A class action is a superior method for the fair and efficient adjudication

of this controversy.

130. Class-wide damages are essential to induce Defendants to comply with

the federal and state laws alleged in the Complaint.

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131. Plaintiffs, individually, and on behalf of all California employees, seek

individual, representative, and public injunctive relief and any necessary order or

judgments that will prevent Defendants from continuing with their unlawful business

acts and practices as alleged herein.

132. Defendants acted on grounds generally applicable to the Class thereby

making appropriate final declaratory relief with respect to the Class as a whole.

133. Members of the Class are likely to be unaware of their rights.

134. Plaintiffs contemplate providing notice to the putative class members by

direct mail in the form of a postcard and via publication.

135. Plaintiffs request certification of a hybrid class combining the elements

of Fed. R. Civ. P. 23(b)(3) for monetary damages and Fed. R. Civ. P. 23(b)(2) for

equitable relief.

136. This action is properly maintainable as a class action. This action

satisfies the numerosity, typicality, adequacy, predominance and superiority

requirements for a class action.

137. Numerosity: The proposed Class is so numerous that individual

joinder of all members is impracticable. Due to the nature of the trade and commerce

involved, Plaintiffs do not know the number of members in the Class, but believe the

Class members number in the thousands, if not more. Plaintiffs allege that the Class

may be ascertained by the records maintained by Defendants.

138. Plaintiffs and members of the Class were harmed by the acts of

Defendants in at least the following ways: violations of Cal. Lab. Code §§ 201, 202,

203, 204, 210, 218, 218.5, 218.6, 221, 226, 226.2, 226.3, 226.7, 351, 510, 511, 512,

1185, 1194, 1194.2, 1197, 1198, 1198.5, 2800, 2802, 3700; the Code of Regulations,

Title 8, section 11000, et seq.; provisions of the Industrial Welfare Commission

(IWC) Wage Order(s); Cal. Bus. & Prof. Code §§ 17200, et seq. (Unfair Competition

Law (“UCL”)); and Cal. Lab. Code §§ 2698, et seq. (the Private Attorneys General

Act of 2004 (“PAGA”))



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139. Commonality: There are questions of law and fact common to

Plaintiffs and the Class that predominate over any questions affecting only individual

members of the Class. These common questions of law and fact include, without

limitation:

a. Whether the classification of dancers as independent contractors failed

to comply with California law on classification;

b. Whether dancers were paid minimum wage;

c. Whether dancers were paid overtime wages;

d. Whether dancers tips were taken in violation of Cal. Lab. Code § 351;

e. Whether dancers received worker’s compensation insurance;

f. Whether dancers received meal breaks pursuant to California law; and

g. Whether dancers received rest breaks pursuant to California law.

140. Typicality: Plaintiffs’ claims are typical of the claims of members of

the Class, as Plaintiffs were subject to the same common course of conduct by

Defendants as all Class members. The injuries to each member of the Class were

caused directly by Defendants’ wrongful conduct as alleged herein.

141. Adequacy of Representation: Plaintiffs will fairly and adequately

represent and protect the interests of the Class. Plaintiffs retained counsel with

substantial experience in handling complex class action litigation and litigation

against product manufacturers. Plaintiffs and their counsel are committed to

prosecuting this action vigorously on behalf of the Class, and have financial

resources to do so.

142. Superiority of Class Action: A class action is superior to other

available methods for the fair and efficient adjudication of the present controversy.

Class members have little interest in individually controlling the prosecution of

separate actions because the individual damage claims of each Class member are not

substantial enough to warrant individual filings. In sum, for many if not most Class

members, a class action is the only feasible mechanism that will allow them an



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opportunity for legal redress and justice. The conduct of this action as a class action

in this forum, with respect to some or all of the issues presented herein, presents

fewer management difficulties, conserves the resources of the parties and of the

court system, and protects the rights of each California Class member.

143. Moreover, individualized litigation would also present the potential for

varying, inconsistent, or incompatible standards of conduct for Defendants, and

would magnify the delay and expense to all parties and to the court system resulting

from multiple trials of the same factual issues. The adjudication of individual Class

members’ claims would also, as a practical matter, be dispositive of the interests of

other members not parties to the adjudication, and could substantially impair or

impede the ability of other Class members to protect their interests.

144. Plaintiffs and the members of the Class have suffered and will continue

to suffer harm as a result of Defendants’ unlawful and wrongful conduct. Defendants

have acted, or refused to act, on grounds generally applicable to the Class, thereby

making appropriate final and injunctive relief with regard to the members of the

Class as a whole.

VIII. CAUSES OF ACTION

FIRST CAUSE OF ACTION

FAILURE TO PAY MINIMUM WAGE PURSUANT TO FLSA, 29 U.S.C. § 206

(Against All Defendants On Behalf of Plaintiffs and the FLSA Collective)




146. Defendants are or were the “employer” or joint-employers and

employ(ed) Plaintiff and those similarly situated, and Plaintiffs and those similarly

situated were the “employees” those “employers” within the meaning of the FLSA,

29 U.S.C. § 203(d).

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147. Defendants are engaged in “commerce” and/or the production of

“goods” for “commerce.”

148. Defendants are an enterprise engaged in commerce within the meaning

of the FLSA, 29 U.S.C. § 203(s)(1), because they have employees engaged in

commerce, and because their annual gross volume of sales made is more than

$500,000.

149. Plaintiffs consented to sue in this action pursuant to 29 U.S.C. § 216(b).

Written Consent to sue executed by Plaintiffs was submitted herewith.

150. Defendants misclassified Plaintiffs as independent contractors.

151. Defendants failed to pay Plaintiffs and all other similarly situated wages

at a rate of one and one-half times their regular rate, for hours worked in excess of

forty (40) hours per week, in violation of 29 U.S.C. § 207.

152. Defendants knowingly, intentionally and willfully violated the FLSA.

153. Defendants’ mischaracterization of Plaintiffs as “independent

contractors,” with the consequence of having failed to pay them premium overtime

compensation for hours worked in excess of forty (40) hours per work week,

constitutes a willful violation of the FLSA, and Defendants did not rely on any

determinations or rulings of the U.S. Department of Labor in utilizing same.

154. Due to Defendants’ FLSA violations, Plaintiffs and all other similarly

situated are entitled to recover from Defendants, as well as reasonable attorneys’ fees

and costs of the action, including interest, pursuant to 29 U.S.C. § 216(b), all in an

amount to be determined at trial.

155. Defendants’ practice of failing to pay Plaintiffs time-and-a-half rate for

hours in excess of forty (40) per workweek violates the FLSA. 29 U.S.C. § 207. In

fact, Defendants do not compensate them whatsoever for any hours worked.

156. In at least one week Plaintiffs worked more than 40 hours per week, but

were not compensated at all by Defendants.

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157. None of the exemptions provided by the FLSA regulating the duty of

employers to pay overtime at a rate not less than one and one-half times the regular

rate at which its employees are employed are applicable to the Defendants or the

Plaintiffs.

158. Due to Defendants’ FLSA violations, Plaintiffs and the FLSA

Collective Members are entitled to recover from Defendants, minimum wage

compensation of $7.25 per hour, and an equal amount in the form of liquidated

damages, as well as reasonable attorneys’ fees and costs of the action, including

interest, pursuant to 29 U.S.C. § 216(b), all in an amount to be determined at trial.

SECOND CAUSE OF ACTION

FAILURE TO PAY OVERTIME WAGES PURSUANT TO FLSA, 29 U.S.C. § 207





160. Each Defendant is an “employer” or “joint employer” of Plaintiffs

within the meaning of the FLSA, 29 U.S.C. § 203(d).

161. Defendants are engaged in “commerce” and/or in the production of

“goods” for “commerce” as those terms are defined in the FLSA.

162. Defendants operate an enterprise engaged in commerce within the

meaning of the FLSA, 29 U.S.C. § 203(s)(1), because it has employees engaged in

commerce, and because its annual gross volume of sales made is more than five

hundred thousand U.S. Dollars ($500,000.00).

163. Defendants failed to pay Plaintiffs the applicable overtime wage for

each hour in excess of forty (40) during each workweek in which they worked in

violation of 29 U.S.C. § 207.

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164. Defendants’ practice of failing to pay Plaintiffs at the required

minimum wage rate violates the FLSA. 29 U.S.C. § 206. In fact, Defendants do not

compensate dancers whatsoever for any hours worked.

165. None of the exemptions provided by the FLSA regulating the duty of

employers to pay employees for all hours worked at the required minimum wage rate

are applicable to the Defendants or the Plaintiffs.

166. Based upon the conduct alleged herein, Defendants knowingly,

intentionally and willfully violated the FLSA by not paying Plaintiffs the overtime

wage required under the FLSA.

167. Throughout the relevant period of this lawsuit, there is no evidence that

Defendants’ conduct that gave rise to this action was in good faith and based on

reasonable grounds. In fact, Defendants continued to violate the FLSA long after it

learned that its misclassification scheme and compensation policies were unlawful.

168. Due to Defendants’ FLSA violations, Plaintiffs and the FLSA

Collective Members are entitled to recover from Defendants, overtime wage

compensation and an equal amount in the form of liquidated damages, as well as

reasonable attorneys’ fees and costs of the action, including interest, pursuant to 29

U.S.C. § 216(b).

THIRD CAUSE OF ACTION

UNLAWFUL TAKING OF TIPS IN VIOLATION OF 29 U.S.C. § 203





170. Plaintiffs customarily and regularly received more than thirty U.S.

Dollars ($30.00) a month in tips and therefore is a tipped employee as defined in the

FLSA, 29 U.S.C. § 203(t), see also 29 C.F.R. § 531.50.

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171. At all relevant times, each Defendant is an “employer” or joint

employer of Plaintiffs within the meaning of the FLSA, 29 U.S.C. § 203(d).

172. Defendants are engaged in “commerce” and/or in the production of

“goods” for “commerce” as those terms are defined in the FLSA.

173. Defendants operate an enterprise engaged in commerce within the

meaning for the FLSA, 29 U.S.C. § 203(s)(1), because it has employees engaged in

commerce, and because its annual gross volume of sales made is more than five

hundred thousand U.S. Dollars ($500,000).

174. Tips belong to the employee: Plaintiffs are entitled to recover payments

made by Plaintiffs to The Library Gentlemen’s Clubs and their employees and

workers because as part of Plaintiffs minimum wage and overtime wage losses,

such payments reduced their wages below the minimum and overtime wage. These

types of illegal “kick-backs” that the dancers paid from their tips in order to work

are recoverable as part of Plaintiffs’ wage loss under 29 C.F.R. § 531.35:

Unlawful “kick-backs” must be returned to Plaintiffs to bring their lost wages up to zero, and not leave them at a negative number. Reich v. Priba Corp., 890 F.Supp. 586, 595 (N.D. Tex. 1995). “The FLSA does not permit an employer to transfer to its employees the responsibility for the expenses of carrying on an enterprise.” Id. To fully compensate a minimum wage employee where the employer has improperly required him to pay kickbacks, the Defendant employer must pay the full minimum wage for all time worked, in addition to all fees collected. Reich v. Priba Corp., 890 F.Supp. 586, 595 (N.D. Tex. 1995); Reich v. Circle C Investments, Inc., 998 F.2d 324, 330 (5th Cir. 1993); Martin v. Jobo’s Inc., No. 1:13-CV-04242-RWS, Dkt. 45 (N.D. Ga. Nov. 20, 2015).

Under the FLSA, wages must be paid “finally and unconditionally” or “free

and clear” of any direct or indirect “kickbacks.” 29 C.F.R. § 531.35 states:



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[w]hether in cash or in facilities, ‘wages’ cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or ‘free and clear.’ The wage requirements of the Act will not be met where the employee ‘kicks back’ directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee. This is true whether the ‘kick back’ is made in cash or in any way other than cash. . . . . [T]here would be a violation of the Act in any work week when the cost . . . by the employee cuts into the minimum or overtime wage required to be paid . . . under the Act.

Wages under the FLSA must be received “free and clear” of any improper

deduction. Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228, 1241 (11th Cir.

2002). “[R]equiring employees to pay for expenses incurred for the benefit of the

employer functions as a de facto wage deduction.” De Leon-Granados v. Eller &

Sons Trees, Inc., 581 F.Supp.2d 1295, 1315 (N.D. Ga. 2008). In fact, there is “no

difference between deducting an expense and failing to reimburse an expense.” Id.

The mandatory payment of house fees and “tip-out” fees required to be paid

by entertainers are the exact type of unlawful “kickbacks” prohibited by the FLSA.

These payments are recoverable as part of a FLSA wage claim to the extent they

reduce the employee’s wage below the minimum or overtime rate. Reich, 890

F.Supp. at 595; Reich, 998 F.2d at 330; Hart v. Rick’s Cabaret International, Inc.,

60 F.Supp.3d 447, 477 (S.D.N.Y. 2014). The clubs’ “practice of collecting a tip

out fee . . . violates the FLSA because the deduction further reduces the

entertainers’ wages below the minimum wage.” Reich, 890 F.Supp. at 595. “[T]o

fully compensate the entertainers in the amounts required by the FLSA, [the clubs]

must pay them the full minimum wage for all time worked during the limitations

period. In addition, the club must return all tip out fees collected from the

entertainers.” Id. “[T]he Court agrees with Plaintiffs that ‘the method of calculating

Defendants’ back wage liability at trial should be (1) $7.25 per hour worked, plus (2)



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all [house fees] paid by Plaintiffs to Defendants. . . .” Wilson v. 1400 Northside

Drive, Inc., No. 1:15-CV-4453-SCJ, Dkt. 58 (N.D. Ga. June 15, 2017).

175. Plaintiffs (and those similarly situated) post March 2018 employment is

covered by the TIPA. Under TIPA:

[a]n employer may not keep tips received by its employees for any purpose including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not it takes a tip credit. 29 U.S.C. § 203.

176. Defendants kept a portion of tips paid to Plaintiffs by Defendants’

customers in the form of fees, fines, mandatory charges and other payments to

management, house moms, DJs and floor men in violation of TIPA.

177. Defendants required Plaintiffs to participate in an illegal tip pool, which

included employees who do not customarily and regularly receive tips, and do not

have more than a de minimis, if any, interaction with customer leaving the tips (such

as the Club DJs, security, and management). See U.S. Dep’t of Labor, Wage and

Hour Division, “Fact Sheet # 15: Tipped employees under the Fair Labor Standards

Act (FLSA).”

178. The contribution the Defendants required Plaintiffs to make after each

shift was arbitrary and capricious and distribution was not agreed to by Plaintiffs

other dancers; but rather, was imposed upon Plaintiffs and other dancers.

179. By requiring Plaintiffs to pool their tips with club management,

including the individual Defendants named herein, Defendants “retained” a portion

of the tips received by Plaintiffs in violation of the FLSA.

180. Defendants did not make any effort, let alone a “good faith” effort, to

comply with the FLSA as it relates to compensation owed to Plaintiffs.

181. At the time of their illegal conduct, Defendants knew or showed

reckless disregard that the tip-pool which they required Plaintiffs to contribute



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included non-tipped employees and, therefore, was statutorily illegal. In spite of this,

Defendants willfully failed and refused to pay Plaintiffs the proper amount of the tips

to which they was entitled.

182. Defendants’ willful failure and refusal to pay Plaintiffs the tips they

earned violates the FLSA.

183. Defendants kept a portion of tips paid to Plaintiffs by Defendants’

customers in the form of fees, fines, mandatory charges and other payments to

management, house moms, DJs, and door men in violation of TIPA.

184. As a result of the acts and omissions of the Defendants as alleged

herein, and pursuant to 29 U.S.C. §§ 216(b) and 260, Plaintiffs are entitled to

damages in the form of all misappropriated tips, plus interest; as liquated damages,

an amount equal to all misappropriated tips, mandatory attorneys’ fees, costs, and

expenses.

185. As a result of Defendants’ willful violation of TIPA, Plaintiffs and the

FLSA Collective Members are entitled to recover, under the FLSA and TIPA, all tips

kept by the employer, any tip credit claimed by Defendants, an equal amount in

liquidated damages and attorneys’ fees.

FOURTH CAUSE OF ACTION

ILLEGAL KICKBACKS, 29 C.F.R. § 531.35

(Against All Defendants On Behalf of the Plaintiffs and FLSA Collective)




187. Defendants required Plaintiffs to pay monetary fees to Defendants and

other employees of Defendants who did not work in positions that are customarily

and regularly tipped, in violation of 29 U.S.C. § 203(m).

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188. Defendants’ requirement that Plaintiffs pay fees to Defendants and other

employees of Defendants violated the “free and clear” requirement of 29 C.F.R. §

531.35.

189. Because Defendants violated the “free and clear” requirement of 29

C.F.R. § 531.35 as alleged above, they were not entitled to utilize the FLSA’s tip-

credit provision with respect to Plaintiffs’ wages.


C.F.R. § 531.35, all monetary fees imposed on Plaintiffs are classified as illegal

kickbacks.

191. Plaintiffs are entitled to recover from Defendants all fees that

Defendants required Plaintiff to pay in order to work at The Library Gentlemen’s

Clubs, involving but not limited to house fees.

FIFTH CAUSE OF ACTION

FORCED TIPPING, 29 C.F.R. § 531.35

(Against All Defendants On Behalf of the Plaintiffs and the FLSA Collective)




193. Defendants required Plaintiffs to pay monetary fees to other employees

of Defendants who did not work in positions that are customarily and regularly

tipped, in violation of 29 U.S.C. § 203(m).

194. Defendants’ requirement that Plaintiffs pay fees to other employees of

Defendants violated the “free and clear” requirement of 29 C.F.R. § 531.35.


C.F.R. § 531.35 as alleged above, they were not entitled to utilize the FLSA’s tip-

credit provision with respect to Plaintiffs’ wages.

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196. Plaintiffs are entitled to recover from Defendants all fees that

Defendants required Plaintiffs to pay other employees in order to work at The

Library Gentlemen’s Clubs, involving but not limited to forced tip sharing.

SIXTH CAUSE OF ACTION

FAILURE TO PROVIDE MEAL BREAKS IN VIOLATION OF CAL. LAB. CODE § 226.7

(Against All Defendants On Behalf of the Plaintiffs and the Class)




198. In accordance with the mandates of Cal. Lab. Code § 226.7 and the

applicable IWC Wage Order, Plaintiffs and the Class had the right to take a ten-

minute rest break for every four hours worked or major fraction thereof, and a thirty-

minute meal period for every five hours worked.

199. As a pattern and practice, Defendants did not provide dancers with meal

periods and rest breaks and did not provide proper compensation for this failure.

200. Defendants’ policy of failing to provide Plaintiffs and the Class with

legally mandated meal periods and rest breaks is a violation of California law.

201. Such a pattern, practice and uniform administration of corporate policy

as described herein is unlawful and creates an entitlement to recovery by the

Plaintiffs and the Class Members identified herein, in a civil action, for the balance

of the unpaid premium compensation pursuant to Cal. Lab. Code § 226.7 and the

applicable IWC Wage Order(s), including interest thereon.

202. Defendants’ willful failure to provide Plaintiffs and the Class the wages

due and owing them upon separation from employment results in continuation of

wages up to 30 days from the time the wages were due. Therefore, Plaintiffs and

Class Members who have separated from employment are entitled to compensation

pursuant to Cal. Lab. Code § 203.

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SEVENTH CAUSE OF ACTION

FAILURE TO PROVIDE REST BREAKS IN VIOLATION OF CAL. LAB. CODE § 512





204. In accordance with the mandates of Cal. Lab. Code § 512, and the

applicable IWC Wage Order(s), Plaintiffs and the Class had the right to take a ten

(10)-minute rest break for every four (4) hours worked or major fraction thereof, and

a thirty (30)-minute meal period for every five (5) hours worked.

205. As a pattern and practice, Defendants did not provide dancers with meal

periods and rest breaks and did not provide proper compensation for this failure.

206. Defendants’ policy of failing to provide Plaintiffs and the California

Class with legally mandated meal periods and rest breaks is a violation of California

law.



Plaintiffs and the California Class Members identified herein, in a civil action, for

the balance of the unpaid premium compensation pursuant to Lab. Code § 512, and

the applicable IWC Wage Order, including interest thereon.

208. Defendants’ willful failure to provide Plaintiffs and the California Class

the wages due and owing them upon separation from employment results in

continuation of wages up to thirty (30) days from the time the wages were due.

Therefore, Plaintiffs and Class Members who have separated from employment are

entitled to compensation pursuant to Cal. Lab. Code § 512.

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EIGHTH CAUSE OF ACTION

FAILURE TO PAY WAGES IN VIOLATION OF CAL. LAB. CODE §§ 510 AND 1194





210. At all times relevant herein, Defendants were required to compensate its

dancers for all hours worked and overtime wages for all hours worked in excess of

eight (8) hours in a day or forty (40) hours in a workweek.

211. As a pattern and practice, Defendants failed to compensate its dancers

for all hours worked, resulting in a failure to pay minimum wages and overtime

wages, where applicable. For example, Defendants regularly required dancers to pay

“house fees” that resulted in Plaintiffs and the Class members receiving total wages

in an amount less than minimum wage.


regarding illegal employee compensation as described herein is unlawful and creates

an entitlement to recovery by Plaintiffs and the Class, in a civil action, for the unpaid

balance of the full amount of minimum and overtime wages owing, including

liquidated damages, interest, attorneys’ fees, and costs of suit according to the

mandate of Cal. Lab. Code § 1194.


due and owing them upon separation from employment results in continuation of

wages up to thirty (30) days from the time the wages were due. Therefore, Plaintiffs

and Class Members who have separated from employment are entitled to

compensation pursuant to Cal. Lab. Code § 203.

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NINTH CAUSE OF ACTION

FAILURE TO PAY WAGES UPON SEPARATION OF EMPLOYMENT IN VIOLATION OF

CAL. LAB. CODE § 203





215. At all times relevant herein, Defendants were required to pay its dancers

all wages owed in a timely fashion at the end of employment pursuant to Cal. Lab.

Code §§ 201 to 204.

216. As a result of Defendants’ alleged California Labor code violations

alleged above, Defendant regularly failed to pay Plaintiffs and the Class their final

wages pursuant to Cal. Lab. Code §§ 201 to 204 and accordingly owe waiting time

penalties pursuant to Cal. Lab. Code § 203.

217. The conduct of Defendants and its agents and employees as described

herein was willfully done in violation of Plaintiffs and Class Members’ rights, and

done by managerial employees of Defendants.


due and owing them upon separation from employment results in a continuation of

wages up to thirty (30) days from the time the wages were due. Therefore, Plaintiffs

and Class Members who have separated from employment are entitled to

compensation pursuant to Cal. Lab. Code § 203.

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TENTH CAUSE OF ACTION

FAILURE TO PROVIDE COMPLETE & ACCURATE WAGE STATEMENTS

IN VIOLATION OF CAL. LAB. CODE § 226





220. In violation of Cal. Lab. Code § 226, Defendants failed in their

affirmative obligation to keep accurate records regarding the rates of pay for their

non-exempt California dancers. For example, as a result of Defendants’ various

California Labor Code violations, Defendants failed to keep accurate records of

Plaintiffs and Class Members’ gross wages earned, total hours worked, all

deductions, net wages earned, and all applicable hourly rates and the number of

hours worked at each hourly rate.



Plaintiffs and the Class in a civil action, for all damages and/or penalties pursuant to

Cal. Lab. Code § 226, including interest thereon, penalties, reasonable attorneys’

fees, and costs of suit according to the mandate of Cal. Lab. Code § 226.

ELEVENTH CAUSE OF ACTION

FAILURE TO PROVIDE REIMBURSEMENT OF EXPENSES

IN VIOLATION CAL. LAB. CODE § 2802





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223. Cal. Lab. Code § 2802 requires an employer to “indemnify his or her

employee for all necessary expenditures or losses incurred by the employee in direct

consequence of the discharge of his or her duties.”

224. Plaintiffs and the other Class Members incurred necessary business-

related expenses and costs for which they were not fully reimbursed by Defendants.

225. Defendants have intentionally and willfully failed to reimburse

Plaintiffs and the other Class Members for all necessary business-related expenses

and costs.

226. As a result, Plaintiffs and the other Class Members are entitled to

recover from Defendants their business-related expenses and costs incurred during

the course and scope of their employment, plus interest accrued from the date on

which the employees incurred the necessary expenditures at the same rate as

judgments in civil actions in the State of California.

TWELFTH CAUSE OF ACTION

FAILURE TO KEEP ACCURATE PAYROLL RECORDS

IN VIOLATION CAL. LAB. CODE §§ 1198.5, ET SEQ.

(Against All Defendants On Behalf of the Plaintiff and the Class)




228. Defendants have violated Cal. Lab. Code §§ 1198.5, et seq. by willfully

failing to keep required payroll records showing the actual hours worked by

Plaintiffs and the Class.

229. As a direct and proximate result of Defendants’ failure to maintain

accurate payroll records, Plaintiffs and the Class have suffered actual economic harm

as they have been precluded from accurately monitoring the number of hours worked

and thus seek all accrued minimum wage and overtime pay.

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THIRTEENTH CAUSE OF ACTION

FAILURE TO MAINTAIN WORKERS COMPENSATION INSURANCE COVERAGE

IN VIOLATION CAL. LAB. CODE §§ 3700, ET SEQ.





231. Defendants have violated Cal. Lab. Code §§ 3700, et seq. by willfully

failing to have and maintain required workers compensation insurance coverage to

protect Plaintiffs and the Class.

232. As a direct and proximate result of Defendants’ failure to have and

maintain required workers compensation insurance coverage to protect Plaintiffs and

the Class, Plaintiffs and the Class have suffered actual economic harm as they have

been precluded from receiving the benefits of protection of required workers

compensation insurance coverage.

FOURTEENTH CAUSE OF ACTION

VIOLATION CAL. LAB. CODE §§ 2698, ET SEQ.





234. PAGA expressly establishes that any provision of the California Labor

Code which provides for a civil penalty to be assessed and collected by the LWDA,

or any of its departments, divisions, commissions, boards, agencies or employees for

a violation of the California Labor Code, may be recovered through a civil action

brought by an aggrieved employee on behalf of himself or herself, and other current

or former employees.

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235. Plaintiffs provided written notice to the LWDA and Defendants of the

specific provisions of the California Labor Code they contend were violated, and the

theories supporting their contentions. To date, they have not received a response.

236. Plaintiffs and other misclassified dancers are “aggrieved employees” as

defined by Cal. Lab. Code § 2699(c) in that they are all current or former employees

of Defendants, and one or more of the alleged violations was committed against

them.

Failure to Pay Minimum and Overtime Wages

237. Defendants have failed to pay dancers minimum wages for all hours

worked and overtime wages for all hours worked in excess of eight (8) hours in a day

or forty (40) hours in a workweek, pursuant to the mandate of Cal. Lab. Code §§

510, 1194, 1197, and 1198.

238. At all times relevant herein, Defendants were required to compensate

their dancers at a rate of one and one-half times their respective regular rates of pay

for the first eight (8) hours worked on the seventh workday in a workweek, and twice

the respective regular rates of pay for any work in excess of eight (8) hours on the

seventh workday in a workweek, pursuant to the mandate of Cal. Lab. Code §§ 510

and 1198.

239. As a pattern and practice, Defendants failed to compensate Plaintiffs

and other aggrieved current and former dancers for all hours worked, resulting in a

failure to pay all minimum wages and overtime wages, where applicable.

240. As a pattern and practice, Defendants failed to compensate Plaintiffs

and other aggrieved current and former dancers the required premium pay for hours

worked on the seventh workday in a workweek.

Failure to Provide Meal Periods and Rest Breaks

241. In accordance with the mandates of Cal. Lab. Code § 226.7, and 512,

Defendants were required to authorize and permit its dancers to take a ten (10)-

minute rest break for every four (4) hours worked or major fraction thereof, and was



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further required to provide its non-exempt employees with a thirty (30)-minute meal

period for every five (5) hours worked.

242. As a pattern and practice, Defendants failed to provide Plaintiffs and

other aggrieved current and former dancers with legally-mandated meal periods and

rest breaks and failed to pay proper compensation for this failure.

Failure to Timely Pay Wages During Employment

243. At all times relevant herein, Defendants was required to pay their

dancers within a specified time period pursuant to the mandate of Cal. Lab. Code §

204.

244. As a pattern and practice, Defendants regularly failed to pay Plaintiffs

and other aggrieved current and former dancers all wages due and owing them

within the required time period.

Failure to Timely Pay Wages Upon Termination

245. At all times relevant herein, Defendants were required to pay their

dancers all wages owed in a timely fashion at the end of employment pursuant to

Cal. Lab. Code §§ 201 to 204.

246. As a result of Defendants’ California Labor Code violations alleged

above, Defendants failed to pay Plaintiffs and other aggrieved current and former

dancers their final wages pursuant to Cal. Lab. Code §§ 201 to 204 and accordingly

owe waiting time penalties pursuant to Cal. Lab. Code § 203.

Failure to Provide Complete and Accurate Wage Statements

247. At all times relevant herein, Defendants were required to keep accurate

records regarding its California dancers pursuant to the mandate of Cal. Lab. Code

§§ 226 and 1174(d).

248. As a result of Defendants’ various California Labor Code violations,

Defendants failed to keep accurate records regarding Plaintiffs and other aggrieved

current and former dancers. For example, Defendants failed in its affirmative

obligation to keep accurate records regarding Plaintiffs and other aggrieved current



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and former employees’ gross wages earned, total hours worked, all deductions, net

wages earned, and all applicable hourly rates and the number of hours worked at

each hourly rate.

Failure to Provide Business Expense Reimbursements

249. At all times relevant herein, Defendants were required to reimburse its

dancers for all necessary business-related expenses and costs which they incurred

for or on behalf of Defendants.


above, Defendants failed to reimburse Plaintiffs and the other Class Members for all

necessary business-related expenses and costs for which Plaintiffs and the other

Class Members are entitled to reimbursement.

Failure to Comply with Cal. Lab. Code § 2810.05

251. At all times relevant herein, Defendants were required to provide

notice to dancers, complying with California’s Wage Theft and Prevention Act of

2011, as set forth in Cal. Lab. Code § 2810.5. With regard to their dancers,

Defendants failed to comply with Section 2810.5 both “[a]t the time of hiring” and

“within seven [7] calendar days” after the time of any changes to the notice

information.


above, Defendants failed to provide required notice to Plaintiffs and the other Class

Members, and thus they are entitled to seek civil penalties under PAGA.

Illegal Tip Pooling

253. At all times relevant herein, Defendants compelled dancers to

participate in unlawful tip pooling arrangements in violation of Cal. Lab. Code §§

350, 351, 353, 354, and 356.


above, dancers were deprived of tips and/or wages to which Plaintiffs and the other

Class Members are entitled.



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Violation of Cal. Lab. Code § 432, et. seq.

255. At all times relevant herein, Defendants compelled dancers, as a

condition of employment, to sign documents that contained terms and conditions

which Defendants knew violated California law. By virtue of forcing their dancers

to sign these documents, Defendants violated Cal. Lab. Code §§ 432, 432.5, and

433.


above, Plaintiffs and the other Class Members are entitled to seek civil penalties

under PAGA.

Failure to Maintain Records

257. At all times relevant herein, Defendants failed to maintain employment

records of dancers, including, but not limited to, personnel files and payroll records

in violation of Cal. Lab. Code §§ 1174, 1174.5, and 1175.



under PAGA.

Failure to Provide Workers Compensation

259. At all times relevant herein, Defendants failed to maintain workers

compensation insurance to cover dancers.



under PAGA.

PAGA Relief

261. Pursuant to Cal. Lab. Code § 2699, Plaintiffs, individually, and on

behalf of other current and former aggrieved dancers, request and are entitled to

recover from Defendants unpaid wages, civil penalties, interest, attorneys’ fees and

costs pursuant, as well as all statutory penalties against Defendants, including but

not limited to:



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a. Penalties under Cal. Lab. Code § 2699 in the amount of a hundred

dollars ($100) for each aggrieved dancer per pay period for the initial

violation, and two hundred dollars ($200) for each aggrieved dancer

per pay period for each subsequent violation;

b. Penalties under Code of Regulations Title 8 § 11040 in the amount of

fifty dollars ($50) for each aggrieved dancer per pay period for the

initial violation, and one hundred dollars ($100) for each aggrieved

dancer per pay period for each subsequent violation;

c. Penalties under Cal. Lab. Code § 210 in addition to, and entirely

independent and apart from, any other penalty provided in the

California Labor Code in the amount of a hundred dollars ($100) for

each aggrieved dancer per pay period for the initial violation, and two

hundred dollars ($200) for each aggrieved dancer per pay period for

each subsequent violation;

d. Penalties under Cal. Lab. Code § 1197.1 in the amount of a hundred

dollars ($100) for each aggrieved dancer per pay period for the initial

violation, and two hundred fifty dollars ($250) for each aggrieved

dancer per pay period for each subsequent violation;

e. Any and all additional penalties and sums as provided by the

California Labor Code and/or other statutes; and

f. Attorneys’ fees and costs pursuant to Cal. Lab. Code §§ 210, 1194, and

2699, and any other applicable statute.

///

///

///



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FIFTEENTH CAUSE OF ACTION

VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW,

CAL. BUS. & PROF. CODE §§ 17200, ET SEQ.)





263. Cal. Bus. & Prof. Code § 17200 defines “unfair competition” to include

any unlawful business practice.

264. Cal. Bus. & Prof. Code §17204 allows a person who has lost money or

property as a result of unfair competition to bring an action for restitution of money

or property acquired from him or her by means of unfair competition.

265. The FLSA prohibits employers to divert any part of an employee’s

wages and overtime wages, including tips and gratuity, to themselves.

266. In violation of these requirements, as set forth above, Defendants

violated 29 U.S.C. § 203 by forcing Plaintiffs and the FLSA Collective Members to

participate in an invalid tip-pool with employees who typically do not receive tips.

Additionally, Defendants forced Plaintiffs to use portions of their tip wages to pay

Defendants, managers as well as “house fees” and other fees and fines.


violated 29 U.S.C. § 206 and 29 U.S.C. § 207 by failing to pay Plaintiffs and the

FLSA Collective Members minimum wages and overtime wages.

268. Furthermore, Defendants’ practice of failing to pay tipped employees

pursuant to 29 U.S.C. § 203(m), violates the FLSA’s minimum wage provision. See

29 U.S.C. § 206. The forcing of tips by dancers to other employees such as managers

and DJs violates 29 C.F.R. § 531.5 which “prohibits an arrangement that tends to

shift part of the employer’s business expense to the employees.” Ramos- Barrientos

v. Bland, 661 F.3d 587, 594-595 (11th Cir. 2011). A required tip to the DJ or a



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House Mom each time Plaintiffs worked functioned as a subsidy to Defendants.

Defendants had to pay the DJ and/or a House Mom less because they were being

tipped by the entertainers. Defendants’ practice of forcing dancers to pay house fees

is an illegal kickback in violation of 29 C.F.R. § 531.5. As a result of Defendants’

above-alleged unlawful business practices, Plaintiffs and the FLSA Collective

Members have lost monies and property by means of unfair competition.

269. At all relevant times during her employment, Plaintiffs were non-

exempt employees of Defendants and was thus entitled to the full benefits and

working protections of the California Labor Code and the applicable Wage Order(s).

270. Cal. Lab. Code §§ 226, 201-203, 226.7, 450, 510, 5121194, 1197,

1198.5, 2800, 2802, 3700 and Section 3 of the Wage Orders, require employers to

furnish accurate wage statements, comply with waiting time regulations, to prohibit

the compelled patronization of the employer, pay overtime wages, pay minimum

wages and indemnify business expenses to their non-exempt employees.

271. In violation of these requirements, as set forth above, Defendants failed

to furnish accurate wage statements to Plaintiffs.


to comply with waiting time regulations.


to comply with rest break requirements.


to comply with meal break requirements.


to comply with workers compensation insurance coverage requirements.


compelled Plaintiffs to patronize The Library Gentlemen’s Clubs.


to pay Plaintiffs overtime wages for hours that they worked.



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to pay Plaintiffs minimum wages for the hours that they worked.


to indemnify business expenses to Plaintiffs.

280. As a result of Defendants’ above-alleged unlawful business practices,

Plaintiffs have lost monies and property by means of unfair competition.

281. Pursuant to Cal. Bus. & Prof. Code § 17204, Plaintiffs seek an order of

restitution for all monies and property that Defendants have acquired from them by

means of unfair competition from the forced tip pooling.

282. Plaintiffs are seeking minimum wages, overtime wages, accurate wage

statements, waiting time penalties, indemnification of business expenses and

patronization of employer claims under this cause of action.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually and on behalf of the FLSA Collective

and the Class, pray for relief and judgment as follows:

1. Certifying the FLSA Collective and the Class as requested herein;

2. Providing such further relief as may be just and proper;

3. Appointing Plaintiffs and their counsel to represent the Collective

and the Class;

In addition, Plaintiffs and the FLSA Collective Members pray for further

judgment as follows:

4. As to the First Cause of Action, award Plaintiffs and the FLSA

Collective Members judgment for wages at the minimum rate,

including the recovery of all payments reducing wages below the

minimum wage, as well as liquidated damages, interest and

attorneys’ fees as provided for under the FLSA;

5. As to the Second Cause of Action, award Plaintiffs and the FLSA

Collective Members judgment for overtime wages, including the



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recovery of all payments reducing wages below the overtime

wage, as well as liquidated damages in an equal amount, interest

and attorneys’ fees as provided for under the FLSA;

6. As to Causes of Action III, IV and V, award Plaintiffs and the

FLSA Collective Members judgment for the recovery of all tips

kept by the employer, the amount of any tip credit claimed by

Defendants, an equal amount in liquidated damages and

reasonable attorneys’ fees under the FLSA and TIPA;

7. Award Plaintiffs and the FLSA Collective Members the costs of

this action, including expert fees;

8. Award Plaintiffs and the FLSA Collective Members interest;

9. Award Plaintiffs and the FLSA Collective Members attorneys’

fees; and

10. For equitable and injunctive relief, including public injunctive

relief; and

11. Award Plaintiffs such other and further relief as the Court may

deem just and proper.

In addition, Plaintiffs and the Class pray for further judgment as follows:

12. Upon the Fourth Cause of Action, for all meal period premiums

owed;

13. Upon the Fifth Cause of Action, for all rest period premiums

owed;

14. Upon the Sixth Cause of Action, for all minimum wages owed

and overtime wages owed, and for waiting time wages according

to proof pursuant to Cal. Lab. Code §203, and for costs and

attorneys’ fees;

15. Upon the Ninth Cause of Action, for waiting time penalties

according to proof pursuant to Cal. Lab. Code § 203 and for costs;



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16. Upon the Tenth Cause of Action, for damages or penalties

pursuant to statute as set forth in Cal. Lab. Code § 226, and for

costs and attorneys’ fees;

17. Upon the Eleventh Cause of Action, for reimbursement pursuant

to statute as set forth in Cal. Lab. Code § 2802, and for costs and

attorneys’ fees;

18. Upon each Cause of Action, for compensation damages in an

amount to be proven at trial;

19. Upon the Fifteenth Cause of Action, for restitution to Plaintiffs

and other similarly affected members of the general public of all

funds unlawfully acquired by Defendants by means of any acts or

practices declared by this Court to be in violation of Cal. Bus. and

Prof. Code §§ 17200 et seq.;

20. Upon the Fourteenth Cause of Action, for civil penalties and

wages pursuant to statute as set forth in Cal. Lab. Code §§ 2698,

et seq., for Defendants’ violations of Cal. Lab. Code §§ 201,

201.5, 202, 203, 204, 204b, 210, 215, 216, 218, 218.5, 218.6, 223,

225, 225.5, 226, 226(a), 226.2, 226.3, 226.6, 226.7, 350, 351, 353,

354, 356, 432, 432.5, 433, 510, 512(a), 1174, 1174(d), 1174.5,

1175, 1182.12, 1194, 1194.2, 1194.3, 1197, 1197.1, 1197.2, 1198,

and 2802, and the applicable IWC Wage Orders; and

21. On all Causes of Action, for attorneys’ fees, interest, and costs as

provided by Cal. Lab. Code §§ 210, 218.6, 226, 1194, Cal. Code

Civ. Proc. § 1021.5, and any other applicable statute; and for such

other further relief the Court may deem just and proper.

22. For restitution of unpaid monies;

23. For costs of suit incurred herein;

24. For statutory penalties;



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25. For civil penalties;

26. For pre-judgment interest;

27. For post-judgement interest;

28. For general damages in an amount to be proven at trial;

29. For declaratory relief;

30. For injunctive relief; and

31. For such other and further relief as the tribunal may deem just and

proper.

Dated: March 30, 2020 KRISTENSEN LLP &

FORTIS LLP

/s/ John P. Kristensen John P. Kristensen

Jesenia A. Martinez Peter E. Garrell John M. Kennedy Attorneys for Plaintiff



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DEMAND FOR JURY TRIAL

Plaintiffs hereby demands a trial by jury for all such triable claims. Dated: March 30, 2020 KRISTENSEN LLP &

FORTIS LLP


Jesenia A. Martinez Peter E. Garrell John M. Kennedy Attorneys for Plaintiff


EXHIBIT 1


CONSENT FORM FOR WAGE CLAIM Printed Name: Adriana Hernandez

ADRIANA HERNANDEZ and JANE DOE 1, individually and on behalf of all others

similarly situated, v. BOB MARTIN, INC. dba THE LIBRARY GENTLEMEN’S CLUB (Westminster), a California corporation; BAILEY FOOD AND BEVERAGE GROUP, LLC dba THE LIBRARY GENTLEMEN’S CLUB (Anaheim), a California corporation; CBDM REDLANDS, INC. dba THE LIBRARY GENTLEMEN’S CLUB (Redlands), a Nevada

limited liability company; and DOES 1 through 100, inclusive

Orange County Superior Court Case No. 30-2019-01084113-CU-OE-CXC

1. I consent and agree to be represented by Fortis LLP to pursue my claims

of unpaid overtime and/or minimum wage and/or improper Tip Pooling through the

lawsuit filed against my employer The Library Gentlemen’s Club and its

management/owners under the Fair Labor Standards Act and/or applicable state laws.

2. I intend to pursue my claim individually, unless and until the court certifies

this case as a collective or class action. I agree to serve as the class representative if

the court approves. If someone else serves as the class representative, then I designate

the class representatives as my agents to make decisions on my behalf concerning the

litigation, the method and manner of conducting the litigation, the entering of an

agreement with the plaintiffs' counsel concerning attorney's fees and costs, and all other

matters pertaining to this lawsuit.

3. To the best of my knowledge, I meet the following criteria: I worked for

The Library Gentlemen’s Club as a dancer at some point between September 26, 2016

and the present.

4. If my consent form is stricken or if I am for any reason not allowed to

participate in this case, I authorize Plaintiffs’ counsel to use this Consent Form to re-file

my claims in a separate or related action against my employer.

(Signature) __________________________ (Date Signed) _____________________ Adriana Hernandez


03/19/20

EXHIBIT 2


CONSENT FORM FOR WAGE CLAIM Printed Name: Jane Doe

ADRIANA HERNANDEZ and JANE DOE 1, individually and on behalf of all others

similarly situated, v. BOB MARTIN, INC. dba THE LIBRARY GENTLEMEN’S CLUB (Westminster), a California corporation; BAILEY FOOD AND BEVERAGE GROUP, LLC dba THE LIBRARY GENTLEMEN’S CLUB (Anaheim), a California corporation; CBDM REDLANDS, INC. dba THE LIBRARY GENTLEMEN’S CLUB (Redlands), a Nevada

limited liability company; and DOES 1 through 100, inclusive

Orange County Superior Court Case No. 30-2019-01084113-CU-OE-CXC

1. I consent and agree to be represented by Fortis LLP to pursue my claims

of unpaid overtime and/or minimum wage and/or improper Tip Pooling through the

lawsuit filed against my employer The Library Gentlemen’s Club and its

management/owners under the Fair Labor Standards Act and/or applicable state laws.

2. I intend to pursue my claim individually, unless and until the court certifies

this case as a collective or class action. I agree to serve as the class representative if

the court approves. If someone else serves as the class representative, then I designate

the class representatives as my agents to make decisions on my behalf concerning the

litigation, the method and manner of conducting the litigation, the entering of an

agreement with the plaintiffs' counsel concerning attorney's fees and costs, and all other

matters pertaining to this lawsuit.

3. To the best of my knowledge, I meet the following criteria: I worked for

The Library Gentlemen’s Club as a dancer at some point between September 26, 2016

and the present.

4. If my consent form is stricken or if I am for any reason not allowed to

participate in this case, I authorize Plaintiffs’ counsel to use this Consent Form to re-file

my claims in a separate or related action against my employer.

(Signature) __________________________ (Date Signed) _____________________ Jane Doe


CERTIFICATE OF SERVICE

I certify that on Thursday, April 02, 2020, a true and correct copy of the attached FIRST AMENDED COMPLAINT FOR DAMAGES was served via CM/ECF on each participant of record, including the participants listed below.

Jeffrey A. Dinkin [email protected] Sean P. Piers [email protected] STRADLING YOCCA CARLSON & RAUTH, P.C. 800 Anacapa Street, Suite A Santa Barbara, CA 93101 Attorneys for Defendants



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