1 BRYAN SCHWARTZ LAW - SquarespaceAmended+Complaint.pdf · 1 BRYAN SCHWARTZ LAW ... FIRST AMENDED...

1 BRYAN SCHWARTZ LAW Bryan Schwartz (SBN 209903)

2 Yi-Fan (Yvonne) C. Everett (SBN 301815) 1330 Broadway, Suite 1630

3 Oakland, California 94612 Tel. (510) 444-9300

4 Fax (510) 444-9301 Email: [email protected]

5 [email protected]

6 Attorneys for Plaintiffs and the Class

7 SUPERIOR COURT OF THE STATE OF CALIFORNIA

8 FOR THE COUNTY OF MARIN

9 GENERAL CIVIL DIVISION- SAN RAFAEL

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BRUCE FORD, JOSEPH A. HARVARD, SANDY K. HUSER, individually, on behalf of all others similarly situated, and on behalf of the general public,

Plaintiffs,

vs.

Case No.: CIV 1403236

Hon. Roy 0. Chernus

CLASS AND COLLECTIVE ACTION

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, RESTITUTION AND INJUCTIVE RELIEF

17 AXIS APPRAISAL MANAGEMENT

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SOLUTIONS, a California Corporation; KIMBERLY DAWN PEROTTI; MICHAEL SIMMONS, and DOES 1 through 50, inclusive,

Defendants.

(1) Failure to Pay Overtime in Violation of California Labor Code§§ 510, 1194, 1198 and IWC Wage Order

(2) Failure to Pay Earned Wages Upon Discharge, Waiting Time Penalties in Violation of California Labor Code §§ 200-203

(3) Failure to Provide and/or Authorize Meal and Rest Periods/Unpaid Wages in Violation of California Labor Code §§ 226.7 and 512 and IWC Wage Order

(4) Failure to Reimburse Business Expenses (Cal. Labor Code§ 2802)

(5) Failure to Compensate for All Hours Worked in Violation of Labor Code§§ 221 and 223 and IWC Wage Order

[Caption Continues on Page 2]

FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT FOR DAMAGES, RESTITUTION AND INJUNCTIVE RELIEF (CASE NO.: CIV 1403236)

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(6) Violations of the Fair Labor Standards Act, 29 U.S.C. §§ 206, 207, and 216

(7) Unlawful and/or Unfair Business Practices in Violation of California Business and Professions Code§ 17200, et seq.

(8) Civil Penalties Pursuant to Labor Code Private Attorneys General Act of 2004 (Cal. Labor Code§ 2698, et seq.) (PAGA)

DEMANDFORJURYT~

I. PRELIMINARY STATEMENT

This is a class and collective action brought by Individual and Representative Plaintiffs

14 Bruce Ford, Joseph A. Harvard and Sandy K. Huser on their own behalf and on behalf of the proposed

15 California and Collective Classes identified below. Plaintiffs and the proposed class members were or

16 are employed by Defendants Axis Appraisal Management Solutions ("Axis"), Kimberly Dawn

17 Perotti, Michael Simmons, and Does 1 through 50, inclusive (collectively, "Defendants") as

18 residential appraisers, appraisal reviewers, and other similar positions ("Appraisers").

19 2. As Appraisers, Plaintiffs and the proposed class members are and were non-exempt

20 employees under state and federal wage and hour laws, and should have been classified as such and

21 received overtime pay consistent with the requirements of these laws. These employees are similarly

22 situated under California Code of Civil Procedure ("CCP") § 382 and the Fair Labor Standards Act

23 ("FLSA"), 29 U.S.C. § 216(b).

24 3. The California Class is made up of all persons who are or have been employed by one

25 or more Defendants as Appraisers in the State of California within four years prior to this action's

26 filing date through the date offmal disposition of this action (the "California Class Period").

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1 4. The Collective Class is made of all persons who are or have been employed by one or

2 more Defendants as Appraisers in the United States within three years prior to this action's filing date

3 through the date offmal disposition of this action (the "Collective Class Period").

4 5. During the California Class Period and the Collective Class Period, Defendants failed

5 to pay appropriate overtime compensation to each member of the California Class and the Collective

6 Class as required by state and federal law. Plaintiffs, for themselves and on behalf of the California

7 Class, asserts claims to unpaid overtime wages, missed meal period and rest period wages,

8 unreimbursed business expenses, penalties, injunctive and other equitable relief, civil penalties,

9 reasonable attorneys' fees and costs, under, among other provisions, California Labor Code §§ 201,

10 202, 203, 218.5, 226, 226.3, 226.7, 510, 512, 558, 1194, 1198, 2802, Industrial Welfare Commission

11 Wage Order No. 4-2001, Business and Professions Code § 17200 et seq., CCP § 1021.5, and the

12 Labor Code Private Attorneys General Act of 2004 ("P AGA").

13 II. THE PARTIES

14 6. Individual and representative Plaintiff Bruce Ford resides in Sonoma County,

15 California. He was hired by Axis as a review appraiser on or about November 18, 2009. He worked

16 out of Axis's offices in Marin County, California, until he was terminated on or about July 12, 2013.

17 Plaintiff Ford brings his claim on behalf of himself and the California and Collective Classes. A

18 written consent form for Mr. Ford is attached hereto as Exhibit A.

19 7. Individual and representative Plaintiff Joseph A. Harvard resides in Ventura County,

20 California. He was employed by Axis as a review appraiser from May 2011 to January 2012. Plaintiff

21 Harvard brings his claim on behalf of himself and the California and Collective Classes. A written

22 consent form for Mr. Harvard is attached hereto as Exhibit B.

23 8. Individual and representative Plaintiff Sandy K. Huser resides in Novato County,

24 California. She is still currently employed by Axis as a field appraiser. Plaintiff Huser brings her

25 claim on behalf of herself and the California and Collective Classes. A written consent form for Ms.

26 Huser is attached hereto as Exhibit C.

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1 9. Upon information and belief, Defendant Axis 1s a California Corporation

2 headquartered in Marin County.

3 10. Upon information and belief, Defendant Kimberly Dawn Perotti is an individual

4 residing in Marin County, California. Upon information and belief, at all times relevant to this

5 lawsuit, she was an owner, co-founder, board member, Executive Vice President, and Principal of

6 Axis. Upon information and belief, she had control over and was actively involved in hiring and firing

7 of Appraisers, as well as determining Appraisers' wages, hours and working conditions, including

8 whether Appraisers would be classified as exempt. She did not provide Plaintiffs and the proposed

9 class members with meal and rest breaks, and had the power to prevent, but failed to prevent, the

10 violations articulated herein from occurring.

11 11. Upon information and belief, Defendant Michael Simmons is an individual residing in

12 Novato, California. Upon information and belief, at all times relevant to this lawsuit, he was an

13 owner, co-founder, board member, Senior Vice President, and Principal of Axis. Upon information

14 and belief, he had control over and was actively involved in hiring and firing of Appraisers, as well as

15 determining Appraisers' wages, hours and working conditions, including whether Appraisers would

16 be classified as exempt. He did not provide Plaintiffs and the proposed class members with meal and

17 rest breaks, and had the power to prevent, but failed to prevent, the violations articulated herein from

18 occurring.

19 12. Defendants Does 1-50, inclusive, are sued herein under fictitious names. Their true

20 names and capacities are unknown to Plaintiffs. When their true names and capacities are ascertained,

21 Plaintiffs will amend this complaint by inserting their true names and capacities herein. Plaintiffs are

22 informed and believe and thereon allege that each of the fictitiously-named Defendants is responsible

23 in some manner for the occurrences herein alleged, and that the damages of Plaintiffs and the class

24 members herein alleged were proximately caused by such Defendants.

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1 13. Plaintiffs are informed, believe, and thereon allege that each of the Defendants herein

2 was at all times relevant to this action the joint employer and joint venturer with the remaining

3 Defendants.

4 Ill. JURISDICTION AND VENUE

5 14. Venue in the County of Marin is proper under CCP § 395(a) because Defendant Axis

6 maintains its business headquarters in Marin County. Venue in Marin County is also proper under

7 CCP § 393(a) because that is the county in which causes of action alleged herein arose in whole or in

8 part. The relief requested is within the jurisdiction of this Court.

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IV. COLLECTIVE ACTION ALLEGATIONS

Plaintiffs bring this action on behalf of themselves and other employees similarly

11 situated as authorized under the FLSA, 29 U.S.C. § 216(b). The employees similarly situated are:

12 Collective Class: All persons who are or have been employed by Defendants as Appraisers,

13 including employees with the job title "In-House Appraiser," "Staff Appraiser," "Review

14 Appraiser," "Lead Appraiser," "In-House Review Appraiser," "Senior Review Appraiser,"

15 "Quality Control Reviewer," "QC Reviewer," "Field Appraiser," and any other employee

16 performing the same or similar duties for Defendants within the United States at any time from

17 three years prior to the filing of this Complaint to the fmal disposition of this case.

18 16. Upon information and belief, Defendants suffered and permitted Plaintiffs and the

19 Collective Class to work more than forty hours per week without appropriate overtime compensation.

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Defendants' unlawful conduct has been widespread, repeated, and consistent.

Upon information and belief, Defendants knew that Plaintiffs and the Collective Class

22 performed work that required overtime pay. Defendants have operated under a scheme to deprive

23 these employees of appropriate overtime compensation by failing to properly compensate them for all

24 hours worked.

25 19. Upon information and belief, Defendants rnisclassified Plaintiffs and members of the

26 Collective Class as "exempt" from federal overtime laws. Defendants misrepresented to these

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I employees that they were "exempt" and therefore were not entitled to overtime pay for hours worked

2 in excess of forty a week.

3 20. Plaintiffs and the Collective Class members are not learned professionals as defined by

4 the FLSA. They are not required to undergo a prolonged course of specialized intellectual instruction

5 to work as Appraisers. They are required only to obtain a state appraisal license, which entails on-the-

6 job training, a limited number of hours of "classroom" (including virtual/remote internet classes)

7 credit, and passage of the state licensing test.

8 21. Plaintiffs and the Collective Class members do not perform sales, i.e., do not generate

9 new business for Defendants. Rather, they conduct or review appraisals of properties as such tasks are

I 0 assigned to them.

11 22. Plaintiffs and the Collective Class members were not employed as commission

I2 employees by a retail establishment that is exempt under Section 7(i) of the FLSA from overtime.

I3 They are not paid on a commission basis, and Axis is not a retail establishment. Axis provides

I4 services primarily to mortgage lenders who must obtain an appraisal as a necessary step in the lending

I5 process.

I6 23. Plaintiffs and the Collective Class members are subject to productivity requirements

I7 and are production workers, not administrators of Axis's general business operations or malcers of

I8 Axis's overarching policies.

I9 24. The primary duties of Plaintiffs and the Collective Class consisted of routine mental

20 work, dictated by detailed guidelines enforced by Defendants. Completing appraisal reports requires

2I gathering specified information in order to fill out a standardized appraisal form. It involves limited

22 discretion with respect to narrow choices about how to complete the form. It requires completion of

23 routine tasks, including driving to inspect properties, viewing properties in order to fill out required

24 information about each property in the appraisal form, taking required photographs, and diagramming

25 the property. Appraisers generally complete Fannie Mae Forms 1004 (single-family home), 1073

26 (condominium), and 1025 (2-4 unit residence). Reviewing appraisal reports requires following a

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1 detailed checklist to verify that the required information has been gathered and accurately input into

2 the appraisal form. Among other things, reviewers are required to adhere to a detailed "QC template"

3 provided by Defendants. Appraisers are required to adhere to detailed Uniform Appraisal Dataset

4 ("UAD") codes when completing or reviewing appraisal reports.

5 25. Plaintiffs and members of the Collective Class who performed "quality control"

6 reviews of appraisals were expected to review forty appraisal reports per day. Their assigned reports

7 were referred to as their "bucket." The reports had a "review shelf life" of 24-hours or less, meaning

8 that reviewers were expected to review all of the reports in their bucket each day. If necessary,

9 reviewers worked on the weekend to complete reviews by the deadline. To meet Defendants'

1 0 productivity requirements, Appraisers frequently are required to work in excess of forty hours per

11 week. Plaintiffs and those similarly situated regularly work up to approximately 55 hours per week,

12 including up to approximately 8 hours on weekends in order to complete their assigned work. When

13 Axis had a large number of reports to be completed, reviewers were sometimes expected or instructed

14 to put in a full weekend of work performing reviews. On such occasions, they would be paid a flat

15 payment of $250 for the weekend. The general expectation was to complete 50 reviews during such a

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17 26. Plaintiffs typically began their daily work at home in the mornings by logging in to

18 Defendants' "Mercury Network" and reviewing several reports before traveling to the office to

19 continue working. On some days, reviewers were permitted to work from home, but their bucket

20 would be increased from 40 reviews for that day to 50 reviews, to account for the fact that they would

21 have more time available to work as a result of not spending time commuting to the office.

22 27. Plaintiffs and the Collective Class members lack significant discretion over appraisals

23 they complete and/or review. Appraisal methods are dictated by regulatory and industry standards.

24 Appraisers were trained to apply Defendants' and the regulatory pre-established guidelines and

25 procedures as they found them, and were not free to alter those guidelines or procedures. Reviewers

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1 are glorified proofreaders who must apply the strict and detailed guidelines to check that the appraiser

2 generating the report has correctly followed the company and regulatory established protocol.

3 28. Plaintiffs and the Collective Class members have no discretion to set Axis's policies

4 or depart from those policies. Appraisers do not supervise anyone. They do not have authority to bind

5 the Company.

6 29. Defendants' conduct, as set forth in this Complaint, was willful and in bad faith, and

7 has caused significant damages to Plaintiffs and the Collective Class.

8 30. Defendants are liable under the FLSA for failing to properly compensate Plaintiffs and

9 the Collective Class, and as such, notice should be sent to the Collective Class. Upon information and

10 belief, there are dozens of similarly situated current and former employees of Defendants who have

11 been denied overtime pay in violation of the FLSA who would benefit from the issuance of a Court-

12 supervised notice of the present lawsuit and the opportunity to join in the present lawsuit. Those

13 similarly-situated employees are known to Defendants and are readily identifiable through

14 Defendants' records.

15 V. CALIFORNIA CLASS ALLEGATIONS

16 31. Plaintiffs bring this action as a class action pursuant to CCP Section 382 on behalf of

17 the following defined class:

18 Proposed California Class: All persons who are or have been employed by Defendants as

19 Appraisers, including employees with the job title "In-House Appraiser," "Staff Appraiser,"

20 "Review Appraiser," "Lead Appraiser," "In-House Review Appraiser," "Senior Review

21 Appraiser," "Quality Control Reviewer," "QC Reviewer," "Field Appraiser," and any other

22 employee performing the same or similar duties for Defendants within California at any time

23 from four years prior to the filing of this Complaint to the fmal disposition of this case.

24 32. Plaintiffs, on behalf of themselves and the California class, allege and incorporate by

25 reference the allegations in the preceding paragraphs.

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I 33. As non-exempt employees, Plaintiffs and the California Class were entitled to take

2 meal and rest periods as provided in California Labor Code §§ 512 and 226.7, but Defendants had a

3 policy and practice of failing to provide or authorize such meal and rest periods throughout the

4 California Class Period. Upon information and belief, Defendants have never paid a meal/rest period

5 premium for missed meal or rest periods, as required by California Labor Code § 226.7 and Industrial

6 Welfare Commission Wage Order 4-2001, codified as 8 Cal. Code Regs. § 11040. Plaintiffs and the

7 California Class members were expected to meet their productivity targets even though doing so

8 generally required missing meal and/or rest breaks. Upon information and belief, in particularly busy

9 periods, Defendants brought lunch in to the office for employees with the expectation that Plaintiffs

I 0 and the California Class members would work through their lunch without leaving the office to obtain

II food.

I2 34. As a result of misclassifying Appraisers as exempt, Defendants have failed to pay

I3 Appraisers all wages due upon the termination of their employment.

I4 35. As a result of misclassifying Appraisers, Defendants have knowingly and intentionally

I5 failed to provide them with accurate, itemized records of their earnings and deductions. Among other

I6 things, Appraisers' pay statements have failed to include premiums for missed breaks, failed to

I 7 include overtime pay and rates, and failed to accurately reflect Appraisers' status as non-exempt

I8 employees.

I9 36. Plaintiffs and other members of the California Class were required to cover necessary

20 business expenses out of their own personal funds, and were not reimbursed for such expenses, in

2I violation of California Labor Code § 2802. Among other things, Plaintiffs were required to pay

22 quarterly fees for access to the Multiple Listing Services ("MLS") real estate database, which was

23 essential to perform the duties that Defendants assigned to him. Plaintiffs had to use their personal

24 cellular telephone to carry out their work duties, and were instructed by Defendants to provide their

25 personal cellular phone number to customers and appraisers so he could be reached any time. Upon

26 information and belief, Defendants did not reimburse Plaintiffs and other members of the California

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1 Class for the costs of cellular service, and Plaintiffs and other members of the California Class were

2 not reimbursed for office supplies they used to complete their work duties when working from their

3 home offices.

4 37. This action may properly be maintained as a class action under California Code of

5 Civil Procedure§ 382 because there is a well-defmed community of interest in the litigation, and the

6 proposed class is easily ascertainable.

7 38. Numerosity: The California Class is so numerous that joinder of all members is

8 impracticable. Plaintiff is informed and believes, and on that basis alleges, that during the California

9 Class Period, Defendants employed a large number of people throughout the state who satisfy the

1 0 definition of the California Class.

11 39. Typicality: Plaintiffs' claims are typical of the members of the California Class.

12 Plaintiffs are informed and believe that, like other Appraisers, they routinely worked more than eight

13 hours per day and more than 40 hours per week during the Class Period. Plaintiffs had the same

14 essential duties as other Class members and were subject to Defendants' policy and practice of:

15 improperly treating and classifying Appraisers as "exempt" from state overtime law; misrepresenting

16 to these employees that they were exempt from state overtime law; improperly failing to pay

17 appropriate overtime compensation for all hours worked; failing to provide or authorize meal and rest

18 breaks in compliance with state law; failing to maintain accurate time records of hours worked by the

19 California Class; and failing to reimburse out-of-pocket business expenses.

20 40. Superiority: A class action is superior to other available methods for the fair and

21 efficient adjudication of this controversy, particularly in the context of wage and hour litigation where

22 individual plaintiffs lack the fmancial resources to vigorously prosecute separate lawsuits against

23 corporate defendants, and fear retaliation and blackballing in their industry. Prosecuting many

24 identical individual lawsuits statewide does not promote judicial efficiency, equity, or consistency in

25 judicial results.

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1 41. Adequacy: Plaintiffs will fairly and adequately protect the interests of the California

2 Class, have no conflicts with the California Class's interests, and have retained counsel experienced in

3 complex wage and hour class and collective action litigation.

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Commonality:

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Whether Defendants improperly classified Plaintiffs and members of the

California Class as exempt;

Whether Defendants unlawfully failed to fully pay appropriate overtime

compensation to members of the California Class in violation of state wage

laws;

Whether Plaintiffs and California Class members who are no longer employed

with Defendants are entitled to penalties for failure to timely pay wages upon

termination of employment, pursuant to the applicable state laws;

Whether Defendants' policies and practices provide and/or authorize meal and

rest periods in compliance with applicable state laws;

Whether Defendants failed to keep accurate time records for all hours worked

by Plaintiff and the California Class in violation of state wage laws;

Whether Defendants failed to reimburse Plaintiffs and California Class

members for reasonable business expenses;

Whether Defendants paid Plaintiffs and California Class members for all hours

worked, including overtime hours and missed break premiums;

The proper measure of damages sustained by the California Class; and

Whether Defendants' actions were "willful."

Plaintiffs intend to send notice to all members of the California Class to the extent

24 required by§ 382. The names and addresses of the Class are available from Defendants.

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FIRST CAUSE OF ACTION

UNLAWFUL FAILURE TO PAY OVERTIME WAGES UNDER CALIFORNIA LAW (California IWC Wage Order 4; Cal. Labor Code§§ 510, 1194, 1198), Against All Defendants

44. Plaintiffs incorporate by reference in this cause of action each allegation of the

preceding paragraphs, as though fully set forth herein.

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Plaintiffs and the Class Members worked in California and/or under California law.

At all relevant times herein, California Labor Code§ 510 and IWC Wage Order No.4

8 required employers, like Defendants, to pay non-exempt employees overtime premium(s) for hours

9 worked in excess of 8 (or in excess of 12) in a given workday, 40 in a given workweek, or on the

10 seventh day worked in a single workweek. Pursuant to California Labor Code § 1198, it is unlawful to

11 employ persons for hours longer than the hours set by the Industrial Welfare Commission ("IWC"), or

12 under conditions prohibited by the applicable wage orders of the IWC.

13 47. Plaintiffs and the Class Members are or were non-exempt employees entitled to be paid

14 overtime compensation for all overtime hours worked.

15 48. Plaintiffs are informed and believe, and thereon alleges, that members of the California

16 Class worked in excess of eight hours per day and in excess of 40 hours per week, and Defendants

17 unlawfully failed to pay members of the Class the proper overtime compensation required in violation

18 ofiWC Wage Order 4, and the California Labor Code§§ 510 and 1198, throughout the Class Period

19 and continuing to the present. Pursuant to California Labor Code § 1194, the Plaintiffs and the other

20 Class Members are entitled to recover their unpaid overtime compensation.

21 49. As a direct and proximate result of Defendants' unlawful conduct, as set forth herein,

22 Plaintiffs and the Class have sustained damages, including loss of earnings for hours of overtime

23 worked on behalf of Defendants in an amount to be established at trial, plus interest, attorneys' fees

24 and costs, and an injunction requiring Defendants to pay overtime in the future.

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50. Defendants' failure to pay overtime was done willfully, in bad faith, in knowing

violation of the California Labor Code and the IWC Wage Order, and with malice.

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SECOND CAUSE OF ACTION

LATE PAY AND WAITING TIME PENALTIES (Cal. Labor Code §§ 200-203), Against All Defendants

Plaintiffs incorporate by reference in this cause of action each allegation of the

preceding paragraphs as though fully set forth herein.

52. Plaintiffs and the California Class Members worked m California and/or under

California law.

53. California Labor Code §§ 201 and 202 require an employer to pay its employees all

9 wages due within the time specified by law. Labor Code § 203 provides that if an employer willfully

10 fails to pay such wages, the employer must continue to pay the subject employees' wages until the

11 back wages are paid in full or an action is commenced, up to a maximum of thirty days of wages.

12 54. Plaintiffs and California Class Members who ceased employment with Defendants are

13 entitled to unpaid compensation, but to date have not received such compensation.

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More than thirty days have passed since Plaintiffs left Defendants' employment.

Defendants willfully failed to pay any overtime, or any meal or rest period premiums.

As a consequence of Defendants' willful failure to timely compensate Plaintiffs and

the Proposed California Class Members for all hours worked, the Plaintiffs and Class Members whose

employment ended during the Class Period are entitled to thirty days' wages under Labor Code§ 203,

together with interest thereon and attorneys' fees and costs, including and attorneys' fees and costs for

vindicating a public interest in pursuing these late pay claims, under California Code of Civil

Procedure § 1021.5.

TIDRD CAUSE OF ACTION

FAILURE TO PROVIDE REST BREAKS AND MEAL PERIODS (California IWC Wage Order No.4; Cal. Labor Code§§ 226.7 and 512), Against All Defendants


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1 59. Plaintiffs and the California Class regularly worked in excess of five-hour shifts

2 without being afforded at least a half-hour uninterrupted meal break in which they were relieved of all

3 duty, as required by California Labor Code§§ 226.7 and 512(a) and Wage Order No.4,§ 11(a).

4 60. As a result of Defendants' failure to afford proper meal periods, they are liable to

5 Plaintiffs and the California Class Members for one hour of additional pay at the regular rate of

6 compensation for each workday that the proper meal period( s) were not provided, pursuant to

7 California Labor Code§ 226.7 and Wage Order No.4,§ ll(b).

8 61. Plaintiffs and the California Class regularly worked more than three and one-half hours

9 in a day without being authorized and permitted to take a 10-minute duty-free rest period, and

10 regularly worked more than six hours in a day without being authorized and permitted to take two 10-

11 minute duty-free rest periods per four hours or major fraction thereof, as required under Cal. Labor

12 Code§ 226.7 and Wage Order No.4,§ 12(a).

13 62. As a result of Defendants' failure to afford proper rest periods, Defendants are liable to

14 Plaintiffs and the California Class for one hour of additional pay at the regular rate of compensation

15 for each workday that the proper rest periods were not provided, pursuant to Cal. Labor Code§ 226.7

16 and Wage Order No.4,§ 12(b).

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63. Plaintiffs also seek injunctive relief requiring Defendants to comply with the California

Labor Code and Wage Order No. 4 with respect to meals and rest periods, and attorneys' fees and

costs for vindicating a public interest in pursuing these meal/rest period claims, under California Code

of Civil Procedure§ 1021.5.

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FOURTH CAUSE OF ACTION

FAILURE TO REIMBURSE NECESSARY BUSINESS EXPENSES (Cal. Labor Code § 2802), Against All Defendants

Plaintiffs incorporate by reference in this cause of action each allegation of the


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1 65. California Labor Code§ 2802(a) requires an employer to indemnify its employees "for

2 all necessary expenditures or losses incurred by the employee in direct consequence of the discharge

3 of his or her duties." California Labor Code§ 2802(b) provides that all awards made under California

4 Labor Code § 2802(a) shall "carry interest at the same rate as judgments in civil actions" and that

5 interest "shall accrue from the date on which the employee incurred the necessary expenditure or

6 loss."

7 66. Defendants failed to fully indemnify Plaintiffs and the California Class for personal

8 expenditures necessary to complete their work, including, but not limited to, access to real estate

9 databases, mileage, telephone charges, internet charges, and office supplies.

10 67. Plaintiffs and the California Class Members are therefore entitled to full

11 reimbursement for said expenditures and all other relief provided by California law, including but not

12 limited to attorneys' fees and costs, pursuant to Code of Civil Procedure § 1021.5, inter alia, and

13 injunctive relief requiring Defendants to pay reimbursement to its employees for such routine business

14 expenses.

15 FIFTH CAUSE OF ACTION

16 FAILURE TO COMPENSATE FOR ALL HOURS WORKED

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(California Labor Code§ 218.5, and IWC Wage Order 4), Against All Defendants



69. The California Labor Code and IWC Wage Order 4 require that employees be paid for

all hours worked.

70. As a result of misclassifying Plaintiffs and the California Class, Defendant have failed

23 to pay them for overtime hours worked and premiums for missed meal and rest breaks.

24 71. Plaintiffs and Class Members thus seek and are entitled to all uncompensated wages,

25 plus interest, and attorneys' fees and costs, under California Labor Code § 218.5 and IWC Wage

26 Order 4, as well as all other legal and equitable relief such as a court may fmd just and proper.

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SIXTH CAUSE OF ACTION

FAILURE TO PAY OVERTIME WAGES IN VIOLATION OF THE FAIR LABOR STANDARDS ACT (29 U.S.C. §§ 206,207, 216), Against All Defendants

72. Plaintiffs, on behalf of himself and the Collective Class, allege and incorporate by

6 reference the allegations in the preceding paragraphs.

7 73. Plaintiffs consent in writing to be a party to this action, pursuant to 29 U.S.C. § 216(b).

8 Plaintiffs' written consent form is attached hereto as Exhibit A-C. Plaintiffs anticipate that other

9 individuals will sign consent forms and join as plaintiffs.

10 74. At all relevant times, Defendants have been, and continue to be, "employers" engaged

11 in interstate commerce and/or the production of goods for commerce, within the meaning of the

12 FLSA, 29 U.S.C. § 203. At all relevant times, Defendants have employed and continue to employ

13 employees, including Plaintiffs and the Collective Class. At all relevant times, upon information and

14 belief, Defendants have had gross operating revenues in excess of $500,000.

15 75. The FLSA requires each covered employer, such as Defendants, to compensate all

16 non-exempt employees at a rate of not less than one and one-half times the regular rate of pay for

1 7 work performed in excess of forty hours per work week.

18 76. During their employment with Defendants, within the applicable statute of limitations,

19 Plaintiffs and the other Collective Class members worked in excess of forty hours per workweek.

20 Despite the hours worked by Plaintiffs and the Collective Class members, Defendants willfully, in bad

21 faith, and in knowing violation of the FLSA, failed and refused to pay them the appropriate overtime

22 compensation for all the hours worked in excess of forty.

23 77. By failing to accurately record, report, and/or preserve records of hours worked by

24 Plaintiffs and the Collective Class, Defendants have failed to make, keep, and preserve records with

25 respect to each of its employees sufficient to determine their wages, hours, and other conditions and

26 practice of employment, in violation of the FLSA, 29 U.S.C. § 201 et seq.

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1 78. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA, within

2 the meaning of29 U.S.C. § 255(a).

3 79. Plaintiffs, on behalf of himself and the Collective Class, seek damages in the amount

4 of their respective unpaid overtime compensation, liquidated damages from three years immediately

5 preceding the filing of this action, plus interest and costs as allowed by law, pursuant to 29 U.S.C.

6 §§ 216(b) and 255(a), and such other legal and equitable relief as the Court deems just and proper.

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80. Plaintiffs, on behalf of themselves and the Collective Class, seeks recovery of

attorneys' fees and costs to be paid by Defendants, as provided by the FLSA, 29 U.S.C. § 216(b).

SEVENTH CAUSE OF ACTION

UNLAWFUL AND/OR UNFAIR BUSINESS PRACTICES (California Business and Professions Code Section 17200, et seq.), Against All Defendants



14 82. Defendants' numerous violations of California law, as well as the other statutory and

15 regulatory violations alleged herein, constitute unlawful business actions and practices in violation of

16 Business and Professions Code§ 17200, et seq.

17 83. Pursuant to Business and Professions Code § 17200, et seq., Plaintiffs and the

18 California Class Members are entitled to restitution of the overtime earnings and other unpaid wages,

19 among other relief alleged herein, that were withheld and retained by Defendants during a period that

20 commences four years prior to the filing of this action, plus a permanent injunction requiring

21 Defendants to pay overtime and wages for all hours worked and provide meal/rest periods to all

22 workers as defined herein, in addition to an award of attorneys' fees and costs pursuant to Code of

23 Civil Procedure § 1021.5 and other applicable law, and costs.

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EIGHTH CAUSE OF ACTION

CIVIL PENALTIES UNDER LABOR CODE PRIVATE ATTORNEYS GENERAL ACT (PAGA)

(California Labor Code§ 2698, et seq.), on Behalf of Plaintiff Huser Against All Defendants

84. Plaintiff Huser incorporates by reference in this cause of action each allegation of the


85. California Labor Code § 2698, et seq., the Labor Code Private Attorneys General Act

of 2004 ("P AGA"), enables a court to award civil penalties for violations of the Labor Code, which,

prior to the Act, could only be assessed and collected by the Labor and Workforce Development

Agency ("L WDA").

86. Plaintiff Huser has provided notice pursuant toCal. Labor Code§ 2699.3. On May 14,

2015, Plaintiff Huser, recently joining this lawsuit, asked the LWDA if it intended to investigate the

alleged Labor Code violations, as set forth in the letter attached hereto as Exhibit D.

87. More than thirty-three days have passed since the postmark date of Plaintiff Huser's

notice to the L WDA, and the agency has not provided notice to Plaintiff regarding its intention to

investigate the alleged violations. As such, pursuant to California Labor Code § 2699.3(a)(2)(A),

Plaintiff Huser has exhausted her notice requirement and seeks civil penalties under Cal. Labor Code

§ 2698, et seq.

88. Accordingly, on behalf of herself and all other California Class Members who have

worked for Defendants at any time since once year prior to the filing of this Complaint to the trial in

this action ("PAGA Class Members"), PlaintiffHuser alleges as follows:

A. California Labor Code § 558 imposes civil penalties, in addition to any other civil or

criminal penalty provided by law, upon any employer or other person acting on behalf of an

employer who violates a section of Division 2, Part 2, Chapter 1 of the Labor Code or any

provision regulating hours and days of work in any Industrial Welfare Commission Wage

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Order. Pursuant to Labor Code § 558, Defendants are subject to a civil penalty of (1) for an

initial violation, fifty dollars ($50) for the underpaid Plaintiff and each underpaid P AGA Class

Member for each pay period for which the employee was not provided a meal period under

Labor Code§ 512, as alleged in the Third Cause of Action for Relief, in addition to an amount

sufficient to recover underpaid wages; (2) for each subsequent violation, one hundred dollars

($100) for the underpaid Plaintiff and each underpaid P AGA Class Member for each pay

period for which the employee was underpaid under Labor Code § 510, as alleged in the First

and Third Causes of Action for Relief, in addition to an amount sufficient to recover underpaid

wages.

B. Under California Labor Code § 2699(±)(2), which provides a civil penalty for those violations

of the Labor Code which lack a corresponding statutory penalty, Defendants are subject to a

civil penalty of one hundred dollars ($100) for each Plaintiff and PAGA Class Member per

day period for the initial violation of Labor Code § 226.7 for failing to provide meal periods,

as alleged in the Third Cause of Action for Relief, and two hundred dollars ($200) for each

Plaintiff and P AGA Class Member per pay period for each subsequent violation of Labor

Code § 226.7 for failing to provide meal periods, as alleged in the Third Cause of Action for

Relief.

C. Under California Labor Code § 2699(±)(2), described above, Defendants are subject to a civil

penalty one hundred dollars ($1 00) for each Plaintiff and P AGA Class Member per pay period

for the initial violation of Labor Code§ 226.7 for failing to provide rest periods, as alleged in

the Third Cause of Action for Relief, and two hundred dollars ($200) for each Plaintiff and

PAGA Class Member per pay period for each subsequent violation of Labor Code§ 226.7 for

failing to provide rest periods, as alleged in the Third Cause of Action for Relief.

D. Under California Labor Code § 2699(f), described above, Defendants are subject to a civil

penalty of one hundred dollars ($100) for Plaintiffs and each PAGA Class Member per pay

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1 period for the initial violation of Labor Code §§ 201 and 202 for their failure to pay earned

2 wages upon discharge, as alleged in the Third Cause of Action for Relief, and two hundred

3 dollars ($200) for Plaintiffs and each P AGA Class Member per pay period for each subsequent

4 violation of Labor Code§§ 201 and 202, as alleged in the Second Cause of Action for Relief.

5 E. Under California Labor Code§ 2699(g)(l), Defendants are liable for attorneys' fees and costs

6 with respect to the violations alleged herein.

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9 REQUEST FOR RELIEF

10 WHEREFORE, Plaintiffs, on behalf of themselves and the proposed California and

11 Collective Classes, request judgment and the following specific relief against Defendants as follows:

12 A. That the Court determine that this action may be maintained as a class action under

13 Code of Civil Procedure § 382 with respect to the California Class, and as a collective action

14 under 29 U.S.C. § 216(b) of the FLSA with respect to the Collective Class;

15 B. That Defendants are found to have violated the above-referenced provisions of the

16 California Labor Code and IWC Wage Order 4 as to Plaintiff and the California Class;

17 C. That Defendants' actions are found to be willful to the extent necessary under

18 §§ 201, 202 and 203 of the California Labor Code for willful failure to pay all compensation

19 owed at the time of separation to Plaintiff and the Class Members no longer employed by

20 Defendants, under § 226 of the California Labor Code for willful failure to provide the

21 required accurate and itemized wage statements to Plaintiff and the Class Members, and under

22 29 U.S.C. § 255(a) of the FLSA, entitling Plaintiff and the California and Collective classes to

23 liquidated damages, an extended statute of limitations, and other penalties;

24 D. That Defendants are found to have violated provisions of the Labor Code and Wage

25 Orders regarding meal periods and rest periods with respect to Plaintiff and the California

26 Class;

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1 E. That Defendants are found to have violated provisions of the Labor Code and Wage

2 Orders regarding overtime with respect to the California Class, and the overtime provisions of

3 the FLSA with respect to the Collective Class;

4 F. That Defendants are found to have violated the FLSA by failing to maintain accurate

5 time records of all the hours worked by Plaintiff and the Collective Class;

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G.

H.

That the Court award waiting time penalties under California Labor Code§ 203;

That Plaintiffs and the Class Members receive an award in the amount of unpaid wages

8 owed, penalties, liquidated damages, and interest thereon in accordance with applicable law,

9 subject to proof at trial;

10 I. That Defendants be ordered and enjoined to pay restitution to Plaintiffs and the

11 California Class for amounts acquired through Defendants' unlawful activities, pursuant to

12 Business and Professions Code§§ 17200-05;

13 J. That Defendants further be enjoined to cease and desist from unlawful activities in

14 violation of California Business and Professions Code § 17200, among other laws;

15 K. That Plaintiff and the California and Collective Classes receive an award of reasonable

16 attorneys' fees and costs pursuant to the Code of Civil Procedure § 1021.5, Labor Code

17 §§ 1194, Labor Code§ 218.5, 29 U.S.C. § 216(b), and/or other applicable laws;

18 L. That Defendants be ordered to pay civil penalties under the Labor Code Private

19 Attorneys General Act of 2004, pursuant to Labor Code § 2698, et seq., and

20 M. That the Court order such other and further relief, in law or equity, as it deems

21 appropriate and just.

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Dated: July 1, 2015

By:

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AijO EYS FOR PLAINTIFF AND THE P~OPPSED CALIFORNIA AND COtLECTIVE CLASSES

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DEMAND FOR JURY TRIAL

Plaintiff, by and through his counsel, hereby demand a jury tl'ial on all causes of actions and

claims which he has a right to jury trial. 4

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Dated: July 1, 2015 BRYAN SCHWARTZ L~f;v/1 / .. ~··· I;' I! I/

By:

,·t~ ' : II/ :>Y..f l ~ r / ;/) i! ,'

/ ;/ I i !/, t ./1 / ;I t

Bryan Sc !I art:l '/ I Yi~Fan C . .Evere ~ j

ATTORNEYS F ~PLAINTIFF AND THE PROPOSED CALIFORNIA AND COLLECTIVE CLASSES

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EXHIBIT A

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CONSENT FORl\1 AND DECLARATION

I hereby consent to join a lawsuit against Axis Appraisal Management Solutions, Inc. and/or its successors/assigns ("Axis") as a Plaintiff to assert claims against it for violations wage and hour laws of the United States and/or the state(s) where I worked for Axis. During the past three years, there were occasions when I worked over 40 hours per week for A.xis and did not receive overtime compensation.

I worked for Axis as a(pleac;e check all that apply): ~ 0 Staff Field Appraiser

'i:LI Staff Review Appraiser I QC Reviewer -...._,_§] Other (Specify Title: S:::.. AI I aft.... 1<. ;_ t.l 1 :_. }' jl Pf """" ~ J ~

Fax or Mail To:

Bryan Sch-\vartz Law 1330 Broadway, Suite 1630 Oakland, CA 94612 FAX (510) 444-9301

EXHIBITB

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CONSENT FORM AND DECLARATION

I hereby consent to join a lawsuit against Axis Appraisal Management Solutions, Inc. and/or its successors/assigns ("Axis") as a Plaintiff to assert claims against it for violations of the wage and hour laws of the United States and/or the state(s) where I worked for Axis. During the past three years, there were occasions when I worked over 40 hours per week for Axis and did not receive overtime compensation.

I worked for Axis as a (please check all that apply): D Staff Field Appraiser ]:& Staff Review Appraiser I QC Reviewer

,$1 Other (Specify Title: P,.ft'.,zA-lt-?J:.-Cq-Jft-tJv~J

8 Pursuant to 28 U.S. C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my lmowledge, information, and belief.

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Fax or Mail To:

Bryan Schwartz Law 1330 Broadway, Suite 1630 Oakland, CA 94612 FAX (510) 444-9301

Date

_J~~ }> .i\6-V.L>@2 Print Name

~~L- CA-Location(s) Worked (City/State)

CONSENT AND DECLARATION

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EXHIBITC

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CONSENT FORM AND DECJ..ARA TJ.ON

I hereby consent to Join· a lawsuit against Axis Appraisal Management Solutions, I and/or its successors/assigns ("Axis')) as a Plaintiff to asselt claims against it for violations of the wage and hour laws of the United States and/or the state(s) ~vhere I worked for Axis. During the past three years, there were occasions when I worked over 40 hours per week fo1· Axis and did· receive overtime compensation.

T •orked for Axis as a (please check all that apply): StaffF.ield Appraiser . . taff Review Appraiser I QC Reviewer

0 Other (Specify Title:---------"

8 · Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is 'true and correct to the best bf my knowledge) information, and belief.

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Fax or Mail To:

Bryan Schwartz Law 1330 Broadway, Suite 1630 Oakland, CA 94612 FAX (510) 444-9301

-~;(j/'ht/L 5--!3-!5 ~ Date .

Scrvtr~ Kk l±v.ser PrintNarpe

Locatlon(s) Worked ·(City/State) f}!J - 1J · · 11 10(/ 11 COCI

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PROOF OF SERVICE

BRUCE FORD V. AXIS APPRAISAL MANAGEMENT SOLUTIONS; KIMBERLY DAWN PEROTTI; MICHAEL SIMMONS; AND DOES 1~50, CIV 1403236

SUPERIOR COURT OF THE STATE OF CALIFORNIA, MARIN COUNTY

I am over the age of 18 years and not a party to the above-entitled action; my 5 business address is 1330 Broadway, Strite 1630, Oakland, California 94612.

6 On July 1, 2015, I served the following documents:

7 STIPULATION FOR LEAVE FOR PLAINTIFF TO FILE FIRST AMENDED COMPLAINT AND ORDER THEREON

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on the interested patties to said action by the following means:

[X] (By Mail) By placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, for collection and mailing on that date, following ordinary business practices, in the United States Mail at the offices of Bryan Schwmtz Law, Oakland, California, addressed as shown below. I am readily familiar with this business's practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and in the ordinary course of business correspondence would be deposited with the U.S. Postal Service the same day it was placed for collection and processing.

I declare under penalty of pe1jmy that the foregoing is true and correct, and that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

Executed on July 1, 2015 at Oakland, California.

NAME AND ADDRESS OF EACH PERSON SERVED:

Sarah Leger, Esq. Ragghianti Freitas LLP 11 01 Fifth A venue, Suite 100 San Rafael, CA 94901

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PROOF OF SERVICE

1 BRYAN SCHWARTZ LAW - SquarespaceAmended+Complaint.pdf · 1 BRYAN SCHWARTZ LAW ... FIRST AMENDED...

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Transcript of 1 BRYAN SCHWARTZ LAW - SquarespaceAmended+Complaint.pdf · 1 BRYAN SCHWARTZ LAW ... FIRST AMENDED...