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EXHIBIT 1
FsetZ0411
Agge
JAN 0$2015
K OF THE um.
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401Ir
M.A. MORAN
CGCT155435
Plaintiffs,
Plaintiff Cobarruviaz brings this action to obtain damages and restitution, as well
as injunctive and other relief, individually and on behalf of a proposed class defined
below ("Class").
2.
As alleged herein, Plaintiffs are drivers and delivery persons who were improperly
Plaintiffs assert claims individually and collectively under the Labor Code 204,
216, 224, 226, 510, 1174, 1194, 1198, 2699, and 2802; the Business & Professions Code
17200; and for fraud/intentional misrepresentation.
4.
equitable relief, costs and expenses of litigation, including attorneys' fees, and all
additional and further relief that may be available and that the Court may deem
appropriate and just under all of the circumstances.
///
///
///
///
///
This class action is brought pursuant to Section 382 of the California Code of Civil
Procedure and seeks to remedy Defendants' violations of state law, including the Labor
Code, UCL, and orders promulgated by the Industrial Welfare Commission ("IWC" or
"IWC Orders"), arising from and related to Defendants' misclassification, unpaid
workers' compensation insurance, unpaid tax contributions, unreimbursed expenses, and
related misconduct in relation to Plaintiffs' employment.
6.
Venue is proper in this Court because, inter alia, Defendants are headquartered in
and engage and perform business activities in and throughout San Francisco County.
Plaintiffs regularly performed work in San Francisco County, many of Defendants'
services involve San Francisco County residents, and many of the acts complained of
herein occurred in this judicial district.
PARTIES
7.
Plaintiff Cobarruviaz is, and at all times relevant herein was, a resident of San
The true names and capacities of DOES 1 through 100, inclusive, are unknown to
Plaintiffs who sue such Defendants by use of such fictitious names. Plaintiffs will amend
this complaint to add the true names when they are ascertained. Plaintiffs are informed
and believe and thereon allege that each of the fictitiously named Defendants is legally
responsible for the occurrences herein alleged, and that Plaintiffs' damages as herein
alleged were proximately caused by their conduct.
co
Plaintiffs bring this action as a class action pursuant to Code of Civil Procedure,
The members of the Class are so numerous that joinder of all members would be
impracticable.
12.
There are questions of law and fact common to the members of the Class that
Whether Defendants failed to pay Plaintiffs for all hours of work performed
f.
Professions Code;
g.
h.
damages, restitution, equitable relief and/or other damages and relief, and, if so, the
amount and nature of such relief.
Plaintiff Cobarruviaz's claims are typical of the claims of the members of the
13.
Class. Cobarruviaz has no interests antagonistic to those of the Class and is not subject to
14.
of the Class and have retained attorneys experienced in class action and complex
litigation.
15.
10
Plaintiff Cobarruviaz will fairly and adequately protect the interests of all members
A class action is superior to all other available methods for the fair and efficient
11
individual actions;
12
13
14
b.
c.
litigation; and
15
d.
16
expeditious manner, will save time and expense, and will ensure uniformity of
17
decisions.
18
16.
19
20
21
22
23
FACTUAL ALLEGATIONS
17.
Instacart provides grocery delivery services in cities throughout the country via an
Instacart offers customers the ability to purchase groceries from specified stores on
24
a mobile phone application or over the Internet and have them delivered by "personal
25
26
19.
27
28
20.
At all relevant times, Defendants issued Plaintiffs Form 1099s, indicating Plaintiffs
At all relevant times, Defendants directed Plaintiffs precisely when and where they
were to collect and deliver groceries to Instacart customers, how they were to interact
with Instacart customers, required them to wear clothing and use accessories bearing the
Instacart insignia, directed them as to how they were to maintain their vehicles, and
terminated them from Instacart's employment at Instacart's discretion.
25.
undergo training by Instacart regarding how to perform their duties. Instacart required
further training if Plaintiffs were going to be delivering alcohol as part of a work order.
26.
At all relevant times, Plaintiffs were assigned their work by Defendants, through its
Instacart even directs Plaintiffs as to the specific driving route they are to take from the
grocery store to the Instacart customer's delivery address. Plaintiffs did not have any role
or discretion in determining the manner of executing their duties, the timing or scope of
their work, or price to be charged for the work performed.
27.
At all relevant times, Plaintiffs received their assigned jobs on a daily basis from
Defendants and, as a result, they did not know where they were to be assigned to work,
the type of deliveries they were to be performing, or the length of time any given
assignment was expected to require until they received Defendant's work order text
message. Plaintiffs were not permitted to collect the materials from locations of their
choosing or deliver them at a time or a price negotiated by Plaintiffs.
28.
customers, and that is the service that Instacart drivers provide. The drivers' services are
fully integrated into Instacart's business, and without the drivers, Instacart's business
would not exist.
29.
contractors to the detriment of Plaintiffs in various manners, including but not limited to,
requiring Plaintiffs to use their own vehicles to make deliveries, pay for driving-related
expenses, refusing to provide liability insurance for the operation of Plaintiffs' motor
vehicles, refusing to provide workers' compensation insurance, and requiring Plaintiffs to
pay increased tax rates mandatory for independent contractors. Additionally, Defendants
required Plaintiffs to use their own smart phones and data from their personal cell phone
service plans in order to receive and carry out work orders.
30.
At all relevant times, Plaintiffs were paid in a manner completely dependent on the
nature of the deliveries they made, including the quantity of items Plaintiffs were required
to collect and deliver under each individual work order. Plaintiffs were required to make
themselves available to perform work within a predetermined range of time each day, but
were not compensated in a manner that guaranteed they were compensated at or above the
applicable minimum wage during those hours. During non-productive time, or time
during which Plaintiffs were required to make themselves available for work but were not
given an assignment, Plaintiffs were not compensated in any manner whatsoever.
32.
Shifts for Plaintiffs could last up to ten (10) hours but Plaintiffs were not
compensated at the required overtime rates for the time worked over eight (8) hours.
33.
including expenses for their vehicles, gas, and other expenses. California law requires
employers to reimburse employees for such expenses, which are for the benefit of the
employer and are necessary for the employees to perform their jobs.
34.
At all relevant times, Defendants required Plaintiffs to use and maintain insured
and licensed vehicles as a condition of their work. Plaintiffs were required to pay all
expenses related to the use and maintenance of their vehicles, including expenses related
to liability insurance, fuel, routine maintenance, and the upkeep of their vehicles'
appearance. Defendants also required Plaintiffs to use their own smart phones and data
from their personal cell phone service plans as a condition of their work in order to
receive and carry out work orders. Defendants did not reimburse Plaintiffs for these
work-related expenses in any manner.
35.
At all relevant times, Defendants did not provide Plaintiffs with workers'
compensation insurance. Plaintiffs injured in the course and scope of their employment
with Defendants were left to rely on either their own private medical insurance or make
direct payments for medical treatment rendered as a result of industrial injuries. Plaintiffs
were additionally ineligible for workers' compensation disability benefits if they were
physically unable to perform their work as a consequence of industrial injuries.
36.
At all relevant times, Defendants paid taxes in a manner consistent with Plaintiffs'
wages and compensation due to them, as well as by committing the numerous other
violations detailed below, Defendants, by and through their officers, directors and/or
managing agents, acted with malice, oppression and or conscious disregard for the
statutory and/or other rights of Plaintiffs, and committed fraud by wrongly treating
Plaintiffs as independent contractors and not employees.
FIRST CAUSE OF ACTION
UNPAID WAGES
(Violation Of Labor Code 216)
38.
Defendants, and each of them, have violated and continue to violate Labor Code
216 by willfully refusing to pay wages including the benefits described above due and
payable to Plaintiffs. As more fully set forth above, Plaintiffs are not compensated for
non-productive hours worked. Additionally, Plaintiffs work and have worked well in
excess of 8 hours a day or 40 hours per week without being appropriately compensated
for hours worked in excess of 40 hours per week and/or 8 hours per day. These unpaid
hours include overtime that should have been paid.
40.
Equally, Defendants denied that any wages due for non-productive work and work
in excess of 40 hours per week and/or 8 hours per day were due to be paid to Plaintiffs
even though each Defendants knew that under any set of circumstances or facts, Plaintiffs
were entitled to be paid for each hour that they worked. Defendants have falsely denied
and refused and continue to deny falsely and refuse payment for purposes of securing a
material economic benefit to themselves and with the intent to annoy, harass, oppress,
hinder, and defraud Plaintiffs.
Plaintiffs have been and are expected to regularly work in excess of eight (8) hours
per day and/or forty (40) hours per week. Plaintiffs have regularly worked and continue
to regularly work in excess of 8 hours per day or 40 hours per week.
43.
At all relevant times, Defendants failed to pay Plaintiffs and all persons similarly
situated wages when due, as required by Labor Code 204, 510, 1194 & 1198.
44.
Plaintiffs reallege and incorporate the above allegations by reference as if set forth
fully herein.
46.
At all relevant times, Defendants failed to keep accurate records of the hours
At all relevant times, Defendants failed to provide Plaintiffs with accurate records
of pay indicating the hours worked and/or the wages paid for the hours worked. In
addition, based on fraudulent reporting of hours worked and wages paid, inaccurate
information regarding state and federal deductions were provided to Plaintiffs.
48.
is
As a result of Defendants' conduct, Plaintiffs are entitled to all monetary and other
damages permitted under the Labor Code and any other applicable law, including, but not
limited to, civil penalties pursuant to Labor Code 1174.5.
Plaintiffs reallege and incorporate the above allegations by reference as if set forth
fully herein.
50.
losses. Items and services that Plaintiffs were required to purchase include, but are not
limited to gas, automotive insurance, other vehicle maintenance services, parking
privileges, smartphones, and smartphone data packages.
52.
By the conduct described herein, Defendants have violated the Labor Code.
53.
incurred expenses pursuant to Labor Code 224 and 2802, as well as attorneys' fees and
costs and all civil penalties available as a result of such conduct.
FIFTH CAUSE OF ACTION
CIVIL PENALTIES
(Labor Code 2699)
54.
Plaintiffs reallege and incorporate the above allegations by reference as if set forth
fully herein.
55.
Plaintiffs have complied with the requirements of Labor Code 2699.3 and attach
herewith as Exhibit 1 a true and correct copy of their letter of November 13, 2014,
providing the Division of Labor Standards Enforcement and Defendants with written
notice via certified mail of all violations of the Labor Code Plaintiffs allege that are
enumerated in Labor Code 2699.5.
56.
Pursuant to Labor Code 2699, all civil penalties otherwise recoverable for
violations of the Labor Code which could be assessed and collected by the Labor and
Workforce Development Agency, or any of its departments, divisions, commissions,
boards, agencies, or employees, for a violation of the Labor Code, may be recovered
through a civil action by an aggrieved employee in an action brought on his or her own
behalf or on behalf of others similarly situated.
57.
By the conduct described herein, Defendants have violated the Labor Code.
58.
available pursuant to the Labor Code, as well as attorneys' fees and costs as authorized by
Labor Code 2699(g).
SIXTH CAUSE OF ACTION
UNFAIR, UNLAWFUL, FRAUDULENT BUSINESS PRACTICES
(Bus. & Prof. Code 17200, et seq.)
59.
Plaintiffs reallege and incorporate the above allegations by reference as if set forth
fully herein.
60.
Plaintiffs bring this cause of action on behalf of themselves and on behalf of the
Class.
61.
one or more acts of unfair competition within the meaning of Section 17200. These acts
and practices constitute a continuing and ongoing unfair and/or unlawful business activity
defined by the UCL, and justify the issuance of an injunction, restitution, and other
equitable relief pursuant to the UCL.
63.
civil statutes of the State of California designed to protect workers from exploitation.
65.
Defendants' conduct in misclassifying Plaintiffs and failing to pay wages for hours
worked, including overtime, was unfair within the meaning of the UCL because it was
against established public policy and has been pursued to attain an unjustified monetary
advantage for Defendants by creating personal disadvantage and hardship to their
employees. As such, Defendants' business practices and acts have been immoral,
unethical, oppressive and unscrupulous.
66.
as
By and through its unfair and/or unlawful business practices and acts described
herein, Defendants have obtained valuable services from Plaintiffs and have deprived
Plaintiffs of valuable rights and benefits guaranteed by law, all to their detriment.
68.
relief and all other relief allowed under the UCL, including interest and attorneys' fees
pursuant to, inter alia, Cal. Code of Civ. Proc. 1021.5.
///
///
///
///
///
Defendants, and each of them, made the representations set forth above, including
the specific representation to Plaintiffs that they are not entitled to reimbursement for
business-related expenses and therefore not entitled to the benefits or rights conferred by
the employment relationship between Plaintiffs and Defendants. These representations
were made on an ongoing basis from at least January 1, 2012 to the present time.
71.
Defendants, at the time they made the representations set forth above, knew them to be
false and intended to, and did, induce Plaintiffs' reliance upon these false representations.
72.
Plaintiffs, at the time the aforementioned representations were made, were ignorant
Plaintiffs reasonably relied upon the truth of the aforementioned statements and
and conduct, Plaintiffs have suffered, and will continue to suffer, economic injuries.
///
///
///
///
///
///
///
///
13
An order certifying this case as a class action and appointing Plaintiff Cobarruviaz
For actual and compensatory damages according to proof pursuant to the Labor
Code, applicable IWC Orders and all other applicable laws and regulations;
C.
D.
described herein;
E.
F.
G.
law; and
H.
For such other and further relief as this Court may deem just and proper.
JURY DEMAND
Plaintiffs demand a trial by jury on al
f action so triable.
its
Robert . 1 s (SBN 65071)
Jonath., :'Davis (SBN 191346)
515 Fo , o Street, Third Floor
San Francisco, CA 94105
Telephone: (415) 495-7800
Facsimile: (415) 495-7888
14
to
EXHIBIT ONE
ATTORNEYS
ROBERT S. ARNO
JONATHAN E. DAVIS'
3RD FLOOR
PAUL T. FORTINO
MICHAEL LANOTON'
KEVIN M. OSBORNE
ZACHARIAH D. HANSEN
TEL; 415-49571300
HILLARY R. ALLYN
FAX; 415-495-7688
ROBERT C. FOSS
CECILIA A. PULIDO
JULIE C. ERICKSON
INVESTIGATOR
JERRY LAMBERT
' I loomed lo proctic In Nevado
and CoKorn,.
. Lloonsid to proalloa In Nevada Onty
Licr
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Dear Sir/Madam:
This correspondence is intended to provide notice pursuant to California Labor Code
("Labor Code") 2699.3, of the intent of Dominic Cobarruviaz, individually and on
behalf of. all other similarly situated employees of Instacart ("Plaintiffs" or "the Class"),
to seek, in addition to all other remedies available at law, certain civil penalties under the
Labor Code in connection with alleged violations thereunder by their employer,
Maplebear, Inc., doing business as Instacart ("Defendant").
Summary of alleged Labor Code violations (as required by Labor Code 2699.5):
203
204
206.5
216
224
226
226.7
510
512
1174
1194
1197.1
1198
2802
BackEround
Plaintiffs are drivers and delivery persons who Plaintiffs allege were improperly paid
PLEASE RESPOND TO CALIFORNIA OFFICE
NEVADA
orricz:
TEL: 775-324-2723
FAX: 775-329-7447
Labor Code 204 establishes the fundamental right of all employees in the State of
California to be paid wages in a timely fashion for their work, including any overtime.
Labor Code 510 defines a day's work as 8 hours and states that any work in excess of 8
hours in one workday and any work in excess of 40 hours in any one work week must be
compensated at the rate of no less than one and one-half times the regular rate of pay.
Pursuant to Labor Code 1198, it is unlawful to employ persons for longer than the
hours set by the Industrial Welfare Commission ("IWC") or under conditions prohibited
by IWC Orders. IWC Orders No. 16, which apply to the class members employment,
provide for payment of overtime wages equal to one and one-half times an employee's
regular rate of pay for all hours worked in excess of 8 hours in a day or 40 hours in a
work week or, in certain circumstances, two times an employee's regular rate of pay.
Moreover, under Labor Code 203, Defendant had a separate obligation to pay all wages
accrued by employees who were discharged from, or quit, employment. As a result of
Defendant' failure to pay overtime wages in violation of these sections of the Labor
Code, in addition to other remedies, Plaintiffs will seek to recover all civil penalties
available for these violations including, but not limited to, penalties available under
Labor Code 203, 210, 1194, and 1197.1.
2.
NI a-
3.
Plaintiffs allege that, throughout their employment, class members incurred expenses
related to their employment for which they were not reimbursed and that such conduct
violated, inter alia, Labor Code 224 and 2802. As such, Plaintiffs will seek to recover
all civil penalties available under the Labor Code for these violations.
4.
Plaintiffs allege that Defendant did not provide accurate pay stubs indicating the hours
worked and/or the wages paid for the hours worked. In addition, based on fraudulent
reporting of hours worked and wages paid, inaccurate information regarding state and
federal deductions were provided to employees. This failure is in violation of Labor
Code 226 & 1174.
5.
Plaintiffs allege that Defendant violated Labor Code 206.5 by requiring that class
members submit statements in order to receive payment for work. Plaintiffs were
purportedly required to affirm that they had been paid in full for all labor, services and
material, even though they regularly worked well in excess of 8 hours per day or 40 hours
per week, and were entitled to significant additional compensation. Plaintiffs allege that
Defendant' conduct in requiring the class members to sign the waiver violated the Labor
Code and Plaintiffs will seek to recover all civil penalties available under the Labor Code
for these violations.
Thank you fo your attention to this matter. Please do not hesitate to contact me if you
have any q tions regarding Plaintiffs' allegations and/or their intent to seek leave to
assert thes Maims.
RespecYfi ly yours,
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, &Ma Bar number, and address):
SBN: 191346
Jonathan E. Davis
ARNS LAW FIRM
515 Folsom Street, 3rd Floor, San Francisco, SAN FRANCISCO, CA 94105
FAX No.:415-495-7888
TELEPHONE No.:415-495-7800
ATTORNEY FOR (Nanta).DOMiniC Cobamiviaz
SUPERIOR COURT OF CAL1FORMA, COUNTY OF SAN FRANCISCO
sreErt ooeess.400 McAllister Street
MAILING DonEss 400 McAllister Street
CITY AND ZIP CODE San Francisco, 94102
BRANCH NAME. Civic Center Courthouse
CASE NAME: Cobarruviaz, et al. v. Maplebear, Inc, et al.
it
ai.4
g4
rnie
Countyof an Francisco
JAN 0412015
Ca
.
I Auto (22)
Uninsured motonst (46)
Other PI/PD/WD (Personal Injury/Property
Damage/Wronglui Death) Tort
Asbestos (04)
Product liability (24)
Medical malpractice (45)
Other PI/PD/WD (23)
Non-PI/PD/WD (Other) Tort
X
Enforcement of Judgment
El Residential (32)
Judicial Review
El Asset forfeiture (05)
15-543581
I Drugs (38)
URT
of SIM Frinctsse
OUR" CLERK -
Auto Tort
OF THE
COM
1 RICO (27)
Other complaint (not specified above) (42)
complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
is not
factors requiring exceptional judicial management:
d. 1=1 Large number of witnesses
a. nl Large number of separately represented parties
Extensive motion practice raising difficult or novel
e.
Coordination with related actions pending in one or more courts
b.
issues that will be time-consuming to resolve
In other counties, states, or countries, or in a federal court
f. IT] Substantial postjudgment judicial supervision
c. X I Substantial amount of documentary evidence
2. This case 1 X I is
3.
4.
5.
6.
ni
c. El punitive
[1
NOTICE
pt small claims cases or cases filed
Plaintiff must file this cover sheet with the first paper filed in the action or proceeding e
urt, rule 3.220.) Failure to file may result
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rule
in sanctions.
File this cover sheet in addition to any cover sheet required by local court rule.
If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding.
Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.
Pogo 1 oft
NOTICE TO PLAINTIFF
A Case Management Conference is set for
DATE:
JUN-10-2015
TIME:
10:30AM
Plaintiff must serve a copy of the Alternative Dispute Resolution Information Package on each
defendant along with the complaint. All counsel must discuss ADR with clients and opposing
counsel and provide clients with a copy of the Alternative Dispute Resolution Information
Package prior to filing the Case Management Statement
[DEFENDANTS: Attending the Case Management Conference does not take the
place of filing a written response to the complaint. You must file a written
response with the court within the time limit required by law. See Summons.)
SUMMONS
(CITACION JUDICIAL)
NOTICE TO DEFENDANT: MAPLEBEAR, INC. dba INSTACART; AND
(AVISO AL DEMANDADO): DOES 1 THROUGH 100, inclusive
NOTICE! You have been sued The court may decide against you without your being heard unless you respond within 30 days Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www.courtinfo.ca.gov/selthelp), your county taw library, or the courthouse nearest you. If you cannot pay the Ning fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court.
There are other legal requirements You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the California Legal Services Web site (www.lawhelpcallfornIa.org), the California Courts Online Self-Help Center
(www.courento.ca.govisellhelp), or by contacting your local court or county bar association NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case The courts lien must be paid before the court will dismiss the case
jAVISOI Lo han demanded. Si no responds dentro de 30 dlas, le code puede deadir en su contra sin escucher su version. Lea la informactOn a
continuacion
Tiene 30 DIAS DE CALENDARIO despues de que le entreguen esta citecion y peptides legales pare presenter una respuesta por escrito en esta
code y hater que se entregue una cope al demandants. Una carte o una Ramada telefonica no lo protegen. Su respuesta por escnto Ilene que ester
en format legal correct si desee que procesen su caw en le code Es posible qua hays un formulano qua usted puede user pare su respuesta.
Puede encontrar estos formulanos de la code y mes informacien en el Centro de Ayuda de les Codes de California (www sucorte ca.gov). en la
biblloteca de (eyes de su condado o en la code que le quad. dies cerca. Si no puede pager la mote de presentacien. Oda al secreted de la corte
qua le d6 un fonnulario de exendbn de pego de motes. SI no presenta su respuesta a Campo, puede pander el caso por incumplimiento y la code le
podd guitar su sueldo, dinero y bienes sin mils advertencla.
Hay otros requisitos legates. Es recomendable quo name a un abogado inmediatamente. Si no conoce a un abogado, puede Ramer a un servicio de
remison a abogados. Si no puede pager a un abogado, es posible que armpit, con los requisitos pare obtener serviclos legates gratuitos de un
programa de servicvos legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sjbo web de California Legal Services,
(www lawhelpcalifornia org), en el Centro de Ayuda de las Cortes de California, (www sucorte.ce.gov) o poniondose en contact con la code o el
colegio de abogados locales. AV1SO: Por ley. la code bene derecho a roc:lamer las cuotas y los costos exentos pot imponer un gravamen sobre
cualquier recuperation de 510,000 6 mes de valor recibide mediante un acuerdo o una ooncesion de arbitrate en un caso de derecho a vi T(ene que
pager el gravamen de la corte antes de que le code puede desechar el caso.
ET other (specify).
11by personal delivery on (date):
Page1o11
Form Adopted for Mandatory Use
Judictel Counoi of Gaeta nta
SUM-100 [Rev July 1 20001
SUMMONS
Case3:15-cv-00697-EMC Document1-1
Filed02/13/15
Page25 of 38
For Court tlie
Only
ELECTRONICALLY
.Ref. No or File No:
*hymn for
FILED
Plaintiff
JAN 27 2015
Plaintif
Case 'Vainly,
Deputy Clerk
CGC-15-543583
2. 1 served copies of the SUMMONS; CLASS ACTION COMPLAINT FOR DAMAGES [C.C.?. I] 382] AND DEMAND FOR JURY
TRIAL.; NOTICE TO PLAINTIFF; ALTERNATIVE DISPUTE RESOLUTION PROGRAM INFORMATION PACKAGE;
EXPEDITED JURY TRIAL INFORMATION SHEET.
3. a. Party served:
was completed
as follows:
2013-0001009
San Francisco
8. I declare under penalty of perjury under the laws of the State of California that the foregoing is
nate: Tue, Jan. 20, 2015
PROIrtitatiVICE
PROOF OF SERVICE
By Mail
Hearing Date:
Tune:
Dept/Div.
Case Number:
CGC-I5-543583
1. I am over the age of 18 and not a party to this action. I am employed in the county where the mailing occurred.
2. I served copies of the SUMMONS; CLASS ACTION COMPLAINT FOR DAMAGES [C.C.P. 382) AND DEMAND FOR
JURY TRIAL; NOTICE TO PLAINTIFF; ALTERNATIVE DISPUTE RESOLUTION PROGRAM INFORMATION
PACKAGE; EXPEDITED JURY TRIAL INFORMATION SHEET.
3. By placing a true copy of each document in the United States mail, in a sealed envelope by First Class mail with postage prepaid
as follows:
a. Date of Mailing:
b. Place of Mailing:
c. Addressed as follows:
4. I am readily familiar with the business practice for collection and processing of correspondence as deposited with the U.S. Postal
Service on Tue.,. Jan. 20, 2015 in the ordinary course of business.
5. Person Serving:
a. KELLIE EMMONS
b. FIRST LEGAL SUPPORT SERVICES
1138 HOWARD ST.
SAN FRANCISCO, CA 94103
c. 415-626-3111
8. I declare under penalty ofperjury under the laws of the State of California that the oregoing is true, and correct.
Date: Tue, Jan. 20, 2015
Judicial C'ouncil Form POS-010
Rule 2.150.(a)&(b) Rev January 1, 2007
PROOF OF SERVICE
By Mail
10
11
12 DOMINIC COBARRUVIAZ, Individually
and On Behalf of All Others Similarly
13 Situated Employees,
14
Plaintiffs,
15
vs.
16
17 MAPLEBEAR, INC., dba INSTACART;
AND DOES 1 THROUGH 100, inclusive,
18
19
20
21
22
23
24
25
26
Defendants.
Defendant Maplebear, Inc. dba Instacart (Instacart or Defendant) hereby
answers the unverified Complaint (Complaint) on file herein as follows:
Pursuant to the provisions of Cal. Civ. Proc. Code 431.30(d), Defendant
denies generally and specifically, each and every allegation contained in the Complaint.
Defendant further denies that Plaintiff has been damaged in any sum, or at all, by reason of
any act or omission on the part of Defendant or on the part of any of its agents, servants,
representatives or employees.
27
28
06083.00002/6504406.1
2 affirmative defenses, Defendant is not assuming the burden to establish any fact or
3 proposition where that burden is properly imposed on Plaintiff. Defendant reserves the
4 right to assert additional affirmative defenses based on facts that are revealed during
5 discovery.
6
7
9
10
1.
11 fails to state facts sufficient to constitute any cause of action against Defendant.
12
13
14
(Lack of Standing)
15
16
2.
17 claims are barred, in whole or in part, because Plaintiff and/or any putative class or
18 representative action member lacks standing to assert any or all of the causes of action
19 alleged in the Complaint and lacks standing to recover on behalf of the putative
20 representative action members.
21
22
23
(Equitable Defenses)
24
25
3.
26 barred by the equitable doctrines of estoppel, waiver, laches and/or unclean hands.
27
28
06083.00002/6504406.1
3
4
4.
5 failed to take reasonable, necessary, appropriate and feasible steps to mitigate their alleged
6 damages, and to the extent of such failure to mitigate, Plaintiff and/or any putative class or
7 representative action member should be barred from recovering some or all of the alleged
8 damages they seek.
9
10
11
12
13
5.
The Complaint, and the purported causes of action alleged therein, are
14 barred to the extent Plaintiff and/or any putative class or representative action member has
15 waived, released, relinquished or abandoned any claim for relief against Defendant with
16 respect to the matters which are the subject of the Complaint.
17
18
19
20
21
6.
Defendant alleges that, to the extent Plaintiff and/or any putative class
22 or representative action member proves Defendant conducted any of the activities alleged
23 in the Complaint, those activities conformed with and were pursuant to any and all
24 applicable statutes and regulations and were not unlawful.
25
26
27
28
06083.00002/6504406.1
3
4
7.
5 representative action member has suffered any injury or damage whatsoever, and further
6 deny they are liable to Plaintiff and/or to any putative class or representative action
7 member for any of the injury or damage claimed or for any injury or damage whatsoever.
8
9
10
(Ratification)
11
12
8.
16
17
18
9.
19 was at all times justified and privileged, and did not result in any wrongful benefit or
20 unjust enrichment to Defendant.
21
22
23
(Incompetence of Plaintiff)
24
25
10.
(Inadequate Representative)
3
4
11.
10
11
12.
12 represent, the existence of which is expressly denied, is not ascertainable and thus no well13 defined community of interest exists among the purported class or representative action
14 members.
15
16
17
(Statute of Limitations)
18
19
13.
23
24
25
14.
26 member seeks restitutionary damages under Private Attorneys General Act (PAGA),
27 PAGA bars Plaintiff and/or any putative representative action member from seeking such
28 restitutionary damages.
06083.00002/6504406.1
-5-
(Excessive Fines)
3
4
15.
5 member under PAGA are excessive and violate Defendants due process rights under the
6 United States and California Constitutions.
7
8
10
11
16.
12 members defined in the Complaint are barred in whole or in part by the principles of
13 accord and satisfaction, and payment.
14
15
16
(Federal Preemption)
17
18
17.
19 claims are barred in whole or in part insofar as they allege conduct or seek remedies that
20 are governed or regulated by federal law.
21
22
23
(Due Process)
24
25
18.
3
4
19.
5 relate to the request for class certification, class certification is not appropriate because
6 there is a lack of:
7
(a)
(b)
typicality;
(c)
an ascertainable class;
10
(d)
adequate representation;
11
(e)
12
(f)
13
14
(g)
15
(h)
16
efficient adjudication.
17
18
19
20
21
20.
The Complaint and each purported cause of action alleged therein are
(Good Faith)
3
4
21.
5 purported class and representative group defined in the Complaint are barred in whole or in
6 part by Defendants good faith and/or good faith legal defense.
7
8
10
11
22.
12 purported class and representative group defined in the Complaint brought pursuant to
13 California Business and Professions Code Section 17200 are barred in whole or in part in
14 light of the fact that Plaintiffs have an adequate remedy at law.
15
16
17
(Statute of Frauds)
18
19
23.
23
24
25
24.
The Plaintiffs claims pursuant to Cal. Lab. Code 226 are barred to
26 the extent Plaintiff and/or putative class and representative action members were not
27 injured by such wage statements.
28
06083.00002/6504406.1
(Contractual Indemnity)
3
4
25.
5 right of indemnity against Plaintiff and any individual class or representative action
6 members.
7
1.
2.
3.
13
4.
5.
For such other relief as this Court deems just and proper.
16
17 DATED: February 12, 2015
18
19
20
21
By
Shon Morgan
Viola Trebicka
Matthew Hosen
Attorneys for Defendant Instacart
22
23
24
25
26
27
28
06083.00002/6504406.1
-9-
PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over the age of
eighteen years and not a party to the within action; my business address is 865 South Figueroa
Street, 10th Floor, Los Angeles, California 90017-2543.
On February 12, 2015, I served true copies of the following document(s) described as
DEFENDANT INSTACART'S ANSWER TO PLAINTIFF DOMINIC COBARRUVIAZ'S
COMPLAINT on the interested parties in this action as follows:
The Arns Law Firm
A Professional Corporation
515 Folsom Street, 3rd Floor
San Francisco, CA 94105
Tel: (415) 495-7800
emails:
Robert Stephen Arns
rsa@arnslaw.com
Jonathan E. Davis
jed@arnslaw.corn
Matt Hosen
PROOF OF SERVICE
PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over the age of
eighteen years and not a party to the within action; my business address is 865 South Figueroa
Street, 10th Floor, Los Angeles, California 90017-2543.
On February 12, 2015, I served true copies of the following document(s) described as
DEFENDANT INSTACART'S ANSWER TO PLAINTIFF DOMINIC COBARRUVIAZ'S
COMPLAINT on the interested parties in this action as follows:
The Arns Law Firm
A Professional Corporation
515 Folsom Street, 3rd Floor
San Francisco, CA 94105
Tel: (415) 495-7800
emails:
Robert Stephen Arns
rsa@arnslaw.com
Jonathan E. Davis
jed(&,arnslaw.com
BY MAIL: I am "readily familiar" with the practices of Quinn Emanuel Urquhart &
Sullivan, LLP for collecting and processing correspondence for mailing with the United States
Postal Service. Under that practice, it would be deposited with the United States Postal Service
that same day in the ordinary course of business. I enclosed the foregoing in sealed envelope(s)
addressed as shown above, and such envelope(s) were placed for collection and mailing with
postage thereon fully prepaid at Los Angeles, California, on that same day following ordinary
business practices.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on February 12, 2015, at Los Angeles, California.
kth ve24Asta-fitz
Catherine Estacio
PROOF OF SERVICE
FileAndServeXpress [TransactionReceipt@secure-mail.fileandservexpress.com]
Thursday, February 12, 2015 3:41 PM
Matt Hosen
Case: CGC-15-543583; Transaction: 56768687 Transaction Receipt