Andersen v. First Service - Complaint

8/7/2019 Andersen v. First Service - Complaint

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1 BLUMENTHAL, NORDREHAUG & BHOWMIKNorman B. Blumenthal (State Bar #068687)2 KyleR. Nordrehaug (State Bar #205975)Aparajit Bhowmik (State Bar #248066)3 2255 Calle ClaraLa Jolla, CA 920374 Telephone: (858)551-1223Facsimile: (858) 551-123256789

Attorneys for Defendant Anderson and Eskandari

DEC i1 '10 p.r..

P ull .enflMI,BIJSINESSOFFICE l lJCENTRALDMSION~ E C 1., 2010

suPERiOR couRrC ~ o i E G O COUNTY. Cft

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SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF SAN DIEGO

FIRSTSERVICE PGP VALUATION, INC. CASE NO.: 37-2010-00102292-CU-NP-CTLPlaintiff,

v.THE DORE GROUP, et al.

Defendants.

RICHARD ANDERSON and SAF AESKANDARI, individually, and on behalfof all others similarly situated,

Cross-Complainants,v.

FIRSTSERVICE PGP VALUATION, INC.,and ROES 1 to 15, InclusiveCross-Defendants

[Class Action]

CROSS-COMPLAINT BY DEFENDANTSRICHARD ANDERSON AND SAFAESKANDARI

Judge: Hon. Joel M. PressmanDept.: 66Action Filed: October 13, 2010

CROSS-COMPLAINT Case No. 37-2010-00102292-CU-NP-


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Cross-Complainants RICHARD ANDERSON and SAF A ESKANDARI (hereinafter2 "Appraisers"), hereby cross-complain against FIRSTSERVICE PGP VALUATION INC., and al3 on information and belief, except for their own acts and knowledge which are alleged based on4 personal knowledge, the following:567 I.

THE PARTIESFIRSTSERVICE PGP VALUATION INC., (hereinafter "FSPGP" of"DEFENDAN

8 is an Oregon company headquartered in Carlsbad, California. Founded in 1978 in Portland, Ore9 the Defendant began as the firm of Palmer, Groth and Pietka, and was later known as PGP Valuat

10 Today, FSPGP is the fully national FirstService PGP Valuation- a member ofFirstService Real Es11 Advisors, subsidiary ofFirstService Corporation. FSPGP purports to be a leader in asset valuation12 advisory services. FSPGP is part of the FirstService family of companies, an international hol13 entity with interests ranging from residential to commercial real estate services delivered thro14 entities such as Colliers Mccaulay Nicolls (CMN), the largest member of the Colliers Internati15 organization.16 2. FSPGP business model involves the providing ofappraisal and asset valuation serv17 Currently, FSPGP employees 200 employees in offices located across the U.S. and California. FSP18 provides valuation services to a range of private, institutional, financial, government and corpo19 clients with commercial and investment properties and portfolio needs using a team of appra20 employees.21 3. As part of the production side ofFSPGP's business, FSPGP employs a fleet of22 Appraiser Employees to perform the appraisal and asset valuation services sold by FSPGP. The prim23 job duties of these employees are to perform appraisals and valuations according to established FSP24 procedures and guidelines. These Appraiser Employees have been given the job titles of"Apprai25 and/or "Senior Appraiser." Although FSPGP uses these various titles for Appraiser Employees, all 26 employees perform the same tasks and occupy the same position within the FSPGP business enterp27 The various titles do not indicate differ ingjob duties, but rather reflect seniority and experience fo28 Appraiser Employee Therefore, collectively, all employees of FSPGP in a position with the titl

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1 "Appraiser" and/or "Senior Appraiser" are referred to in this Complaint as "Appraiser Employees2 4. Appraiser Employees primarily perform appraisal services as directed by FSPGP.3 FSPGP uniformly and systematically classifies Appraiser Employees as "exempt" from receiv4 overtime. FSPGP uniformly and systematically varies the amount of compensation paid to Apprai5 Employees based upon the amount or volume of work performed by the Appraiser Employe6 Moreover, Appraiser Employees are not paid by commission and do not perform sales. This act7 challenges the classification ofAppraiser Employees as exempt.8 5. Richard Anderson ("Anderson") was employed by DEFENDANT in California as9 Appraiser Employee from October 2007 though August 2010, when his employment terminated.

10 an Appraiser Employee, Anderson regularly worked overtime hours, but was not paid overti11 compensation for this work, because of FSPGP's blanket classification of the Appraiser Employ12 position as exempt. On average, Anderson worked between 10 and 15 overtime hours per we13 Anderson received compensation from DEFENDANT which varied based upon the volume of w14 performed. At the time of employment termination, DEFENDANT failed to pay Anderson all wa15 owed to him, including the unpaid overtime wages.16 6. Safa Eskandari ("Eskandari") was employed by DEFENDANT in California as an17 Appraiser Employee from October 2007 though August 2010, when her employment terminated. 18 an Appraiser Employee, Eskandari regularly worked overtime hours, but was not paid overti19 compensation for this work, because of FSPGP's blanket classification of the Appraiser Employ20 position as exempt. On average, Eskandari worked 20-25 overtime hours per week, and frequen21 worked more than twelve hours in a workday. Eskandari received compensation from DEFENDA22 which varied based upon the volume of work performed. At the time of employment terminati23 DEFENDANT failed to pay Eskandari all wages owed to her, including the unpaid overtime wage24 7. The Appraiser Employee position was represented by DEFENDANT to Anderson,25 Eskandari and the other Appraiser Employees as an exempt position. Appraiser Employees are 26 customarily required to have attained a four-year specialized academic degree. The Apprai27 Employees primarily perform routine mental, manual, mechanical and physical work in the preparat28 of appraisals for customers ofFSPGP according to rigid and established appraisal guidelines.

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1 13. The Defendants named in this Complaint, including ROES 1 tlnough 50, inclusive, a2 and at all times mentioned herein were, the agents, servants, and/or employees of the DEFENDAN3 and that each of these defendants were acting within the course of scope of his, her or its authority4 the agent, servant and/or employee of each of the DEFENDANT, and personally participated in t5 conduct alleged herein and/or controlled the DEFENDANT with respect to the conduct alleged here6 Consequently, all the defendants are jointly and severally liable to the PLAINTIFFS and the ot7 members of the CALIFORNIA CLASS, for the losses sustained as a proximate . result8 DEFENDANT's conduct.9

10 THE CONDUCT11 The Unlawful, Unfair, and/or Deceptive Failure to Have in Place a Company-Wide Poli12 Practice and Procedure to Correctly Determine Whether the Appraiser Employees were Prope13 Classified as Exempt and Failing to Pay Overtime Wages for Overtime Hours Worked14 14. The primary duties required of the Appraiser Employees as defined by DEFENDA15 are executed by the Appraiser Employee tlnough the performanceofnon-exempt labor within a defin16 skill set, involving the performance of appraisal services following established procedures a17 guidelines and performing tasks as directed or assigned by DEFENDANT.18 15. Although PLAINTIFFS and the Appraiser Employees primarily performed the non19 exempt labor described herein above as set forth by the DEFENDANT in the company's comprehens20 and uniform corporate policies, procedures and protocols, DEFENDANT instituted a blan21 classification policy, practice and/or procedure by which all of these Appraiser Employees were22 classified as exempt from overtime compensation. By reason ofthis uniform exemption practice, po23 and procedure applicable to all other Appraiser Employees who performed this non-exempt lab24 DEFENDANT committed acts ofunfair competition in violation of the California Unfair Competit25 Law, Cal. Bus. & Prof. Code 17200 (the "UCL"), by engaging in a company-wide policy, practice 26 procedure which failed to properly classify the other Appraiser Employees and thereby failed to 27 them overtime wages for documented overtime hours worked. The proper classification of th28 employees is the DEFENDANT'S burden. As a result ofDEFENDANT'S intentional disregard of



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1 obligation to meet this burden, DEFENDANT failed to pay all required overtime compensation f2 work performed by the members of the CALIFORNIA CLASS and violated the California Labor Co3 and regulations promulgated thereunder as herein alleged.4 16. DEFENDANT, as a matter oflaw, has the burden of proving that (a) Appraiser5 Employees are properly classified as exempt and that (b) DEFENDANT otherwise complies w6 applicable laws. Other than the initial classification of the PLAINTIFFS and other Apprais7 Employees as exempt from being paid overtime based on job title alone, DEFENDANT had 8 business policy, practice, or procedure to ensure that the Appraiser Employees were properly classifi9 as exempt, and in fact, as a matter of corporate policy erroneously classified Anderson, Eskandari a

I 0 the other Appraiser Employees as exempt.11 17. During their employment with DEFENDANT, the Appraiser Employees worked o12 the production side of DEFENDANT'S enterprise, performing non-exempt duties, but we13 nevertheless classified by DEFENDANT as exempt from overtime pay. The Appraiser Employe14 worked more than eight (8) hours a day, forty (40) hours a week, and/or on the seventh (7th) o15 workweek.16 18. The Appraiser Employees employed by DEFENDANT were not primarily engaged17 work of a type that was or now is directly related to management policies or general busine18 operations, when giving these words a fair but narrow construction. The other Appraiser Employe19 employed by DEFENDANT were also not primarily engaged in work of a type that was or now20 performed at the level of the policy or management of the DEFENDANT. The Appraiser Employ21 employed by DEFENDANT were also not primarily engaged in work requiring knowledge of22 advanced type in a field or science or learning customarily acquired by a prolonged course23 specialized intellectual instruction and study, but rather their work primarily involves the performan24 of routine mental, manual, and/or physical processes. The Appraiser Employees employed 25 DEFENDANT were also not primarily engaged in work that is predominantly intellectual and var26 in character, but rather is routine mental, manual, mechanical, and/or physical work that is of su27 character that the output produced or the result accomplished can be standardized in relation to a giv28 period of time. In fact, the Appraiser Employees are compensated and reviewed primarily based up



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1 their production rate and the volume ofwork routine performed. The workof the Appraiser Employ2 of the DEFENDANT was work wherein the members of the CALIFORNIA CLASS were prima3 engaged in the day to day business operations of the DEFENDANT to perform appraisal service4 strict accordance with the protocols, policies and operations established by DEFENDANT:5 19. The fact that the work of these employees may have involved work using a speciali6 skill set does not mean that the Appraiser Employees employed by DEFENDANT are exempt fr7 overtime wages. Indeed, the exercise of discretion and independent judgment must be more than8 use of a highly technical skill set described in a manual or other sources. The work that Appra9 Employees employed by DEFENDANT was and are primarily engaged in performing day to

10 activities is the work that is required to be performed as part of the day to day business11 DEFENDANT to deliver the DEFENDANT's product to DEFENDANT's customers. As a result,12 PLAINTIFFS and other Appraiser Employees employed by DEFENDANT were primarily engage13 work that falls on the production side of the administrative/production worker dichotomy and th14 Appraiser Employees should therefore have been classified as non-exempt employees.15 20. Appraiser Employees do not perform sales work and are not compensated through16 commtsswns.17 21. Appraiser Employees and all other members of the CALIFORNIA CLASS, are an18 were uniformly classified and treated by DEFENDANT as exempt at the time of hire and therea19 DEFENDANT failed to take the proper steps to determine whether the members of the CALIFORN20 CLASS, were properly classified under the applicable Industrial Welfare Commission Wage O21 (Wage Order No. 4-2001) and the California Labor Code as exempt from applicable state labor la22 Since DEFENDANT affirmatively and wilfully misclassified the members of the CALIFORN23 CLASS complied with California Labor Laws, DEFENDANT'S practices violated and continu24 violate the law. In addition, the DEFENDANT acted deceptively by falsely and fraudulently tel25 PLAINTIFF and each member ofthe CALIFORNIA CLASS that they were exempt from overtime26 when DEFENDANT knew or should have known that this statement was false and not based on kn27 facts. The DEFENDANT also acted unfairly by violating the labor laws ofCalifornia. As a resu28 this policy and practice, DEFENDANT violated the UCL.



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1 The Unfair, Unlawful and/or Deceptive Failure to Provide Accurate Wage Statements2 22. DEFENDANT failed to provide and still fails to provide Appraiser Employees wit3 wage statement in writing which accurately sets forth gross wages earned, all applicable hourly ra4 in effect during the pay period and the corresponding number of hours worked at each hourly rate5 the Appraiser Employees. This conduct violates California Labor Code 226. The paystub also d6 not accurately display anywhere the Appraiser Employees' overtime hours and applicable rates7 overtime pay for the pay period.8 23. By reason of this uniform conduct applicable to CALIFORNIA CLASS members,9 DEFENDANT committed acts ofunfair competition in violation of the California Unfair Competit

10 Law, Cal. Bus. & Prof. Code 17200 (the "UCL"), by engaging in a company-wide policy 11 procedure which failed to correctly classifY the CALIFORNIA CLASS of Appraiser Employee12 exempt. The proper classification of these employees is the DEFENDANT's burden. As a resul13 DEFENDANT's intentional disregard of the obligation to meet this burden, DEFENDANT faile14 properly calculate and/or pay all required overtime compensation for work performed by the memb15 of the CALIFORNIA CLASS and violated the applicable Wage Order, the California Labor Code 16 the regulations promulgated thereunder as herein alleged.171819 24.

THE UCL REMEDIESAs a result ofDEFENDANT'S UCL violation, Anderson and Eskandari, on beha

20 themselves and the CALIFORNIA CLASS, seek restitutionary disgorgement ofDEFENDANT'S21 gotten gains into a fluid fund in order to provide restitution of all the money that DEFENDANT w22 . required by law to pay, but failed to pay, to the CALIFORNIA CLASS members as wages. Ander23 and Eskandari also seek all other relief available to them and the Appraiser Employees locate24 California under California law. Anderson and Eskandari also seeks declaratory relief finding tha25 employment practices and policies of the DEFENDANT violate California law.262728 25.

THE CALIFORNIA CLASSAnderson and Eskandari bring the First Cause ofAction for Unfair, Unlawful and

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1 Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code 17200, et seq. (the "UCL")2 class action, pursuant to Cal. Code ofCivil Procedure 382 on behalfof a California Class, define3 all individuals who are or previously were employed by FSPGP as a Appraiser Employee4 hereinabove defined in California during the period beginning on the date four years before the fi5 of this action and ending on the date as determined by the Court ("CALIFORNIA CLASS").6 26. To the extent equitable tolling operates to toll claims by the CALIFORNIA CLAS7 against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly.8 27. DEFENDANT, as a matter of corporate policy, practice and procedure, and in viola9 of the applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order Requirements,

10 the applicable provisions ofCalifornia law, intentionally, knowingly, and wilfully, engaged in a prac11 whereby DEFENDANT unfairly, unlawfully, and deceptively instituted a practice to ensure that12 Appraiser Employees were not properly classified as non-exempt from the requirements of Califo13 Labor Code 510, et seq.14 28. DEFENDANT has the burden ofproof that each and every employee is properly15 classified as exempt from the requirements of the Cal. Lab. Code 510, et seq. DEFENDA16 however, as a matter of uniform and systematic policy and procedure had in place during17 CALIFORNIA CLASS PERIOD and still has in place a policy and practice that misclassifies18 members ofthe CALIFORNIA CLASS as exempt. The DEFENDANT's uniform policy and prac19 in place at all times during the CALIFORNIA CLASS PERIOD and currently in place i20 systematically classify each and every CALIFORNIA CLASS member as exempt from the requirem21 of the California Labor Code 510, et seq. This common business practice applicable to each22 every CALIFORNIA CLASS member can be adjudiqated on a classwide basis as unlawful, un23 and/or deceptive under Cal. Business & Professions Code 17200, et seq. (the "UCL") as causa24 damages, and reliance are not elements of this claim.25 29. At no time before, during or after their employment with DEFENDANT was any26 Appraiser Employee reclassified as non-exempt from the applicable requirements ofCalifornia L27 Code 510, et seq. after each CALIFORNIA CLASS Member was initially, uniformly, 28 systematically classified as exempt upon being hired.



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1 30. Any individual declarations ofany employees offered at this time purporting to indi2 that one or more Appraiser Employees may have been properly classified is ofno force or affect ab3 contemporaneous evidence that DEFENDANT's uniform system did not misclassifY the PLAINT4 and other Appraiser Employees as exempt pursuant to Cal. Lab. Code 510, et seq. Absent proo5 such a contemporaneous system, DEFENDANT'S business practice is uniformly unlawful, un6 and/or deceptive under the UCL and may be so adjudicated on a class-wide basis. As a result of7 UCL violations, the CALIFORNIA CLASS Members are entitled to compel DEFENDANT to prov8 restitutionary disgorgement of their ill-gotten gains into a fluid fund in order to restitute these fu9 to the PLAINTIFF and the members of the CALIFORNIA CLASS according to proof.

10 31. The CALIFORNIA CLASS, numbering more than 50 members, is so numerous th11 joinder of all Appraiser Employees is impracticable.12 32. Common questions of la w and fact exist as to members of the CALIFORNI13 CLASS, including, but not limited, to the following:141516171819202122232425262728

(a)

(b)

(c)

(d)

Violating the California Unfair Competition Laws, Cal. Bus. & Prof. Cod17200, et seq. (the "UCL"), by unlawfully, unfairly and/or deceptively havin place companypolicies, practices and procedures that uniformly misclassiAnderson, Eskandari and the members ofthe CALIFORNIA CLASS as exemCommitting an act ofunfair competition in violation of the UCL, by unlawfuunfairly, and/or deceptively failing to have in place a company policy, pracand procedure that accurately determined the amount of working time spenAnderson, Eskandari and the members of the CALIFORNIA CLAperforming non-exempt labor;Committing an act of unfair competition in violation of the UCL, by havinplace a company policy, practice and procedure tha t failed to reclassifY as nexempt those members ofthe CALIFORNIA CLASS whose actual job dutiesprimarily comprised non-exempt job functions;Committing an act of unfair competition in violation of the UCL by violaCal. Lab. Code 51 0, et seq. by failing to pay the correct overtime pa



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(e)

(F)

Anderson, Eskandari and the members of the CALIFORNIA CLASS who. wimproperly classified as exempt, and retaining the unpaid overtime to the beneof DEFENDANT;Committing an act of unfair competition in violation of the UCL by violatCal. Lab. Code 2802 by failing to provide Anderson, Eskandari and members of the CALIFORNIA CLASS with reimbursement of expenincurred by the employee in the discharge of their duties; and,Committing an act of unfair competition in violation of the UCL by violatCal. Lab. Code 226 by failing to provide Anderson, Eskandari and members of the CALIFORNIA CLASS with an accurate itemized statemenwriting showing the gross wages earned, the net wages earned, all applicahourly rates in effect during the pay period and the corresponding numbehours worked at each hourly rate by the employee.

This Class Action meets the statutory prerequisites for the maintenance of a Class15 Action as set forth in Cal. Code of Civil Procedure 382 in that:16

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(a)

(b)

(c)

The persons who comprise the CALIFORNIA CLASS exceed 50 persons are therefore so numerous that the joinder of all such persons is impracticaand the disposition of their claims as a class will benefit the parties and Court;Nearly all factual, legal, statutory, and declaratory relief issues that are raisethis Complaint are common to the CALIFORNIA CLASS will apply uniforto every member of the CALIFORNIA CLASS;The claims ofAnderson and Eskandari are typical of the claims of each memofthe CALIFORNIA CLASS. Anderson and Eskandari, like all other membof the CALIFORNIA CLASS, were initially classified as exempt upon hirbased on the . defined corporate policies and practices and labored unDEFENDANT'S systematic procedure that failed to properly classifY Appra



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(d)

Employees. Anderson and Eskandari sustained economic injury as a resultDEFENDANT'S employment practices. Anderson, Eskandari and the m e m b e of the CALIFORNIA CLASS were and are similarly or identically harmed the same unlawful, deceptive, unfair and pervasive pattern of misconduengaged in by the DEFENDANT by deceptively advising all AppraisEmployees that they were exempt from overtime wages based on the defincorporate policies and practices, and unfairly failing to pay overtime to theemployees who were improperly classified as exempt.The representatives of the Class, Anderson and Eskandari, will fairly aadequately represent and protect the interest ofthe CALIFORNIA CLASS, ahave retained counsel who are competent and experienced in class actilitigation. There are no material conflicts between the claims of trepresentatives and the members ofthe CALIFORNIA CLASS that would maclass certification inappropriate. Counsel for the CALIFORNIA CLASS wvigorously assert the claims of all employees in the CALIFORNIA CLASS.

In addition to meeting the statutory prerequisites to a Class Action, this17 action is properly maintained as a Class Action pursuant to Cal. Code of Civil Procedure 3 82, in th1819202122232425262728

(a) Without class certification and determination ofdeclaratory, statutory and othlegal questions within the class format, prosecution of separate actions individual members of the CALIFORNIA CLASS will create the risk of:1)

2)

Inconsistent or varying adjudications with respect to individual membeof the CALIFORNIA CLASS which would establish incompatibstandards ofconduct for the parties opposing the CALIFORNIA CLASand/or,Adjudication with respect to individual members of the CALIFORNCLASS which would as a practical matter be dispositive of intereststhe other members not party to the adjudication or substantially imp



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(b)

(c)

or impede their ability to protect their interests.The parties opposing the CALIFORNIA CLASS have acted or refused to acgrounds generally applicable to the CALIFORNIA CLASS, making appropclass-wide relief with respect to the CALIFORNIA CLASS as a whole inthe DEFENDANT uniformly classified and treated the Appraiser Employas exempt and, thereafter, uniformly failed to take proper steps to determwhether the Appraiser Employees were properly classified as exempt,thereby denied these employees overtime wages as required by law;1) With respect to the First Cause ofAction, the final relief on behalfo

CALIFORNIA CLASS sought does not relate exclusively to restitubecause through this claim Anderson and Eskandari seek declararelief holding that the DEFENDANT'S policy and practices constunfair competition, along with incidental equitable relief as maynecessary to remedy the conduct declared to constitute uncompetition;

Common questions oflaw and fact exist as to the members ofthe CALIFORCLASS, with respect to the practices and violations of California Law as liabove, and predominate over any question affecting only individual memband a Class Action is superior to other available methods for the fair efficient adjudication of the controversy, including consideration of:1) The interests of the members of the CALIFORNIA CLASS

individually controlling the prosecution or defense of separate actionthat the substantial expense of individual actions will be avoiderecover the relatively small amount of economic losses sustained byindividual CALIFORNIA CLASS members when compared tosubstantial expense and burden of individual prosecution oflitigation;



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2) Class certification will obviate the need for unduly duplicative litigatthat would create the risk of:A. Inconsistent or varying adjudications with respect to individ

members of the CALIFORNIA CLASS, which would estabincompatible standards ofconduct for the DEFENDANT; and

B. Adjudications with respect to individual members ofCALIFORNIA CLASS would as a practical matter be dispositof the interests of the other members not parties to adjudication or substantially impair or impede their abilityprotect their interests;

3) In the context of wage litigation because as a practical mattesubstantial number of individual class members will avoid asserting thlegal rights out of fear of retaliation by DEFENDANT, which madversely affect an individual's job with DEFENDANT or witsubsequent employer, the Class Action is the only means to assert thclaims through a representative; and,

4) . A class action is superior to other available methods for the fair aefficient adjudication of this litigation because class treatment wobviate the need for unduly and unnecessary duplicative litigation tis likely to result in the absence of certification of this action pursuanCal. Code of Civil Procedure 382.

22 35. This Court should permit this action to be maintained as a Class Action pursuant to C23 Code of Civil Procedure 382 because:2425262728

(a) The questions of law and fact common to the CALIFORNIA CLApredominate over any question affecting only individual members because DEFENDANT's employment practices were uniform and systematically applwith respect to the CALIFORNIA CLASS;



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1 (b)23456 (c)789 (d)

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A Class Action is superior to any other available method for the fair and efficiadjudicationofthe claims ofthe members ofthe CALIFORNIA CLASS becain the context ofemployment litigation a substantial number ofindividual Clmembers will avoid asserting their rights individually out of fear of retaliator adverse impact on their employment;The members of the CALIFORNIA CLASS exceed 50 people and are therefso numerous that it is impractical to bring all members of the CALIFORNCLASS before the Court;Anderson, Eskandari, and the CALIFORNIA CLASS members, will not be ato obtain effective and economic legal redress unless the action is maintaineda Class Action;There is a community of interest in obtaining appropriate legal and equitarelief for the acts of unfair competition, statutory violations and otimproprieties, and in obtaining adequate compensation for the injuries whDEFENDANT's actions have inflicted upon the CALIFORNIA CLASS;There is a community of interest in ensuring that the combined assetsDEFENDANT are sufficient to adequately compensate the members ofCALIFORNIA CLASS for the injuries sustained;DEFENDANT had acted or refused to act on grounds generally applicable toCALIFORNIA CLASS, thereby making final class-wide relief appropriate wrespect to the CALIFORNIA CLASS as a whole;The members of the CALIFORNIA CLASS are readily ascertainable from business records ofDEFENDANT. The CALIFORNIA CLASS consists ofDEFENDANT'S Appraiser Employees employed in California during CALIFORNIA CLASS PERJOD; and,Class treatment provides manageable judicial t r e a ~ m e n t calculated to brinefficient and rapid conclusion to all litigation ofall wage and hour related clai



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I23 36.

ansmg out of the conduct of DEFENDANT as to the members ofCALIFORNIA CLASS.

DEFENDANT maintains records from which the Court can ascertain and identify 4 name and job title, each ofDEFENDANT'S employees who as have been systematically, intention5 and uniformly subjected to DEFENDANT'S corporate policy, practices and procedures as he6 alleged. Anderson and Eskandari will seek leave to amend the complaint to include any additional7 titles of similarly situated employees when they have been identified.89

10 37.THE CALIFORNIA LABOR SUBCLASS

Anderson and Eskandari further brings the Second, Third and Fourth causes of ac11 on behalf of a subclass which consists of all members of the CALIFORNIA CLASS who w12 employed by DEFENDANT during the period beginning on the date three (3) years prior to the fi13 of the action and ending on the date as determined by the Court ("CALIFORNIA LABOR SUBCLA14 PERIOD"), who performed work in excess of eight (8) hours in one day and/or forty ( 40) hours in 15 week and/or hours on the seventh (7th) consecutive day of a workweek and did not receive overt16 compensation (the "CALIFORNIA LABOR SUBCLASS") pursuant to Cal. Code of Civil Proced17 382.18 38. DEFENDANT, as a matter ofcorporate policy, practice and procedure, and in viola19 of the applicable California Labor Code ("Labor Code"), and Industrial Welfare Commission ("IW20 Wage Order Requirements intentionally, knowingly, wilfully, and systematically misclassi21 PLAINTIFF and the other members of the CALIFORNIA CLASS and the CALIFORNIA LAB22 SUBCLASS as exempt from overtime wages and other labor laws based on Defendant's comprehen23 policies and procedures in order to avoid the payment of overtime wages by misclassifying t24 positions as exempt from overtime wages and other labor laws. To the extent equitable tolling oper25 to toll claims by the CALIFORNIA LABOR SUBCLASS against DEFENDANT, the class pe26 should be adjusted accordingly.2728

39. DEFENDANTS have intentionally and deliberately created a number ofjob levels

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1 job titles such as "senior appraiser" and/or "appraiser", often with additional designations. These ti2 were distributed in order to create the superficial appearance of a number of unique jobs, when in fa3 these jobs are substantially similar and can be easily grouped together for the purpose of determin4 whether they were all misclassified. One ofDEFENDANT's purposes in creating and maintaining t5 mult i-leveljob classification scheme is to create an artificial barrier to discovery and class certificat6 for all employees similarly misclassified as exempt. DEFENDANT has uniformly misclassified th7 CALIFORNIA LABOR SUBCLASS members as exempt and deniedthem overtime wages and ot8 benefits to which non-exempt employees are entitled in order to unfairly cheat the competition 9 unlawfully profit.

10 40. DEFENDANT maintains records from which the Court can ascertain and identifY 11 job title and name, each ofDEFENDANT's employees who as CALIFORNIA LABOR SUBCLA12 members have been systematically, intentionally and uniformly misclassified as exempt as a matte13 DEFENDANT'S corporate policy, practices and procedures. PLAINTIFF will seek leave to amend14 complaint to include these additional job titles when they have been identified.15 41. The CALIFORNIA LABOR SUBCLASS is so numerous that joinder ofall memb

. 16 which number over 50 Appraiser Employees, is impracticable.17 42. Common questions of law and fact exist as to members of the CALIFORNIA LAB18 SUBCLASS, including, but not limited, to the following:19202122232425262728

(a)

(b)

(c)

Whether DEFENDANT unlawfully failed to pay overtime compensationmembers of the CALIFORNIA LABOR SUBCLASS in violation ofCalifornia Labor Code and California regulations and the applicable Cal ifoWage Order;Whether the members of the CALIFORNIA LABOR SUBCLASS are nexempt employees entitled to overtime compensation for overtime hours worunder the overtime pay requirements of California Law;Whether DEFENDANT'S policy and practice ofclassifYing the CALIFORNLABOR SUBCLASS members as exempt from overtime compensation



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1011121314 45.

(c)

(d)

employee is discharged or quits from employment, the employer must payemployee all wages due without abatement, by failing to tender full paymand/or restitution of wages owed or in the manner required by California lawPLAINTIFF and the other members ofthe CALIFORNIA LABOR SUBCLAwho have terminated their employment;Violating Cal. Lab. Code 2802, by failing to provide Appraiser Employwith reimbursement of expenses incurred by these employees in the dischaof their job duties as an employee of DEFENDANTViolating Cal. Lab. Code 226 by failing to provide Appraiser Employees wwere improperly classified as exempt with an accurate itemized statemenwriting showing the gross wages earned, the net wages earned, all applichourly rates in effect during the pay period and the corresponding numbehours worked at each hourly rate by the employee.

This Class Action meets the statutory prerequisites for the maintenance of a Class15 Action as set forth in Cal. Code of Civil Procedure 382, in that:16171819202122232425262728

(a)

(b)

(c)

The persons who comprise the CALIFORNIA LABOR SUBCLASS exceeindividuals and are therefore so numerous that the joinder of all such personimpracticable and the disposition of their claims as a class will benefitparties and the Court;Nearly all factual, legal, statutory, and declaratory relief issues that are raisethis Complaint are common to the CALIFORNIA LABOR SUBCLASS andapply uniformly to every member of the CALIFORNIA LABOR SUBCLAThe claims of Anderson and Eskandari are typical of the claims ofeach memof the CALIFORNIA LABOR SUBCLASS. Anderson and Eskandari, likother members of the CALIFORNIA LABOR SUBCLASS, were AppraEmployee s and were improperly classified as exempt and denied overtimeas a result ofDEFENDANT'S systematic classification practices. Anderson



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1011 46.

(d)

Eskandari and all other members of the CALIFORNIA LABOR SUBCLAsustained economic injuries arising from DEFENDANT'S violations ofthe laofCalifornia; and,Anderson and Eskandari will fairly and adequately represent and protect interest of the CALIFORNIA LABOR SUBCLASS, and has retained counwho are competent and experienced in Class Action litigation. There arematerial conflicts between the claims of Anderson and Eskandari and members of the CALIFORNIA LABOR SUBCLASS that would make clcertification inappropriate. Counsel for the CALIFORNIA LABSUBCLASS will vigorously assert the claims of all Class Members.

In addition to meeting the statutory prerequisites to a Class Action, this action is12 properly maintained as a Class Action pursuant to Cal. Code of Civil Procedure 382, in that:13141516

171819202122232425262728

(a)

(b)

Without class certification and determination ofdeClaratory, statutory and otlegal questions within the class format, prosecution of separate actionsindividual members of the CALIFORNIA LABOR SUBCLASS will createrisk of:1)

2)

Inconsistent or varying adjudications with respect to individual membof the CALIFORNIA LABOR SUBCLASS which would estabincompatible standards of conduct for the parties opposing CALIFORNIA LABOR SUBCLASS; or,Adjudication with respect to individual members of the CALIFORNLABOR SUBCLASS which would as a practical matter be disposiof interests of the other members not party to the adjudicationsubstantially impair or impede their ability to protect their interests

The parties opposing the CALIFORNIA LABOR SUBCLASS have actedrefused to act on grounds generally applicable to the CALIFORNIA LABSUBCLASS, making appropriate class-wide relief with respect to



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CALIFORNIA LABOR SUBCLASS as a whole in that the DEFENDANuniformly classified and treated the Appraiser Employees as exempt athereafter, uniformly failed to take proper steps to determine whether Appraiser Employees were properly classified as exempt, and thereby denthese employees overtime wages as required by law;Common questions of law and fact predominate as to the members ofCALIFORNIA LABOR SUBCLASS, with respect to the practices and violatioof California Law as listed above, and predominate over any question affectonly individual members, and a Class Action is superior to other availamethods for the fair and efficient adjudication of the controversy, includconsideration of:1) The interests ofthe members ofthe CALIFORNIA LABOR SUBCLA

in individually controlling.the prosecution or defense ofseparate actioin that the substantial expense of individual actions will be avoidedrecover the relatively small amount ofeconomic losses sustained byindividual CALIFORNIA LABOR SUBCLASS members whcompared to the substantial expense and burden of individprosecution of this litigation;

2) Class certification will obviate the need for unduly duplicative litigatthat would create the risk of:A. Inconsistent ot varying adjudications with respect to individ

members of the CALIFORNIA LABOR SUBCLASS, whwould establish incompatible standards of conduct for DEFENDANT; and/or,

B. Adjudications with respect to individual members ofCALIFORNIA LABOR SUBCLASS would as a practical mabe dispositive of the interests ofthe other members not partie



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(e)

(f)

(g)

(h)

(i)

the action is maintained as a Class Action;There is a community of interest in obtaining appropriate legal and equitabrelief for the acts of unfair competition, statutory violations and othimproprieties, and in obtaining adequate compensation for the damages ainjuries which DEFENDANT'S actions have inflicted upon the CALIFORNLABOR SUBCLASS;There is a community of interest in ensuring that the combined assetsDEFENDANT are sufficient to adequately compensate the members of tCALIFORNIA LABOR SUBCLASS for the injuries sustained;DEFENDANThas acted or refused to act on grounds generally applicable to tCALIFORNIA LABOR SUBCLASS, thereby making final class-wide relappropriate with respect to the CALIFORNIA LABOR SUBCLASS as a whoThe members of the CALIFORNIA LABOR SUBCLASS are readiascertainable from the business records of DEFENDANT. The CALIFORNLABOR SUBCLASS consists of those Appraiser Employees who workovertime hours and who were not paid overtime; and,Class treatment provides manageable judicial treatment calculated to bringefficient and rapid conclus ion to all litigation ofall wage and hour related claiarising out of the conduct of DEFENDANT.

JURISDICTION AND VENUE48. This Court has jurisdiction over this Action pursuant to the California Code o

Civil Procedure, Section 410.10 and California Business & Professions Code, Section 1720This Action is brought as a Class Action on behalf of similarly situated employees of FSPGpursuant to California Code of Civil Procedure, Section 382.

49. Venue is proper in this Court pursuant to California Code of Civil ProcedureSections 395 and 395.5, because (i) FSPGP instituted the underlying action against Andersand Eskandari in this Court, (ii) FSPGP committed the alleged wrongful conduct in San Die



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1 County against Anderson and Eskandari, and (iii) Anderson and Eskandari reside in San Di2 County.3456789

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FIRST CAUSE OF ACTIONFor UnlawfulBusiness Practices

[Cal. Bus. And Prof. Code 17200 et seq.)(By Anderson and Eskandari and the CALIFORNIA CLASS and against All Defendant

50. Anderson and Eskandari, and the other members of the CALIFORNIA CLASS,reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 49this Complaint.

51. DEFENDANT is a "person" as that term is defined under Cal. Bus. and Prof. Cod 17021.

52. California Business & Professions Code 17200 et seq. (the "UCL") defines unfacompetition as any unlawful, unfair, or fraudulent business act or practice. Section 17203 authorinjunctive, declaratory, and/or other equitable relief with respect to unfair competition as follows

Any person who engages, has engaged, or proposes to engage in unfaircompetition may16 be enjoined in any court of competent jurisdiction. The court may make such orders orjudgments, including the appointment of a receiver, as may be necessary to prevent the17 use or employment by any person ofany practice which constitutes unfair competition,as defined in this chapter, or as may be necessary to restore to any person in interest any18 money or property,. real or personal, which may have been acquired by means of suchunfair competition.19202122232425262728

California Business & Professions Code 17203.53. By the conduct alleged herein, DEFENDANT has engaged and continues to engag

a business practice which violates California law, including but not limited to provisions. of the WOrders, the California Labor Code, the Fair Labor Standards Act, and the opinions of the Departmof Labor Standards Enforcement, for which this Court should issue declaratory, and other equitrelief, pursuant to Cal. Bus. & Prof. Code 17203, as may be necessary to prevent and remedyconduct held to constitute unfair competition.

54. By and through the unfair and unlawful business practices described herein aboveDEFENDANT has obtained valuable property, money, and services fromAnderson, Eskandari, and



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1 other members of the CALIFORNIA CLASS, and has deprived them of valuable rights and bene2 guaranteed by law, all to their detriment and to the benefit of DEFENDANT so as to al3 DEFENDANT to unfairly compete. Declaratory and equitable relief is necessary to prevent a4 remedy this unfair competition.5 55. All the acts described herein as violations of, among other things, the Cal. Lab. Co6 California Code ofRegulations, and the Industrial Welfare Commission Wage Orders, are unlawf7 are in violation ofpublic policy, are immoral, unethical, oppressive, and unscrupulous, and are lik8 to deceive employees, as herein alleged, and thereby constitute deceptive, unfair and unlawful busin9 practices in violation ofCal. Bus. and Prof. Code 17200 et seq. In addition, DEFENDANT failed

10 provide all of the legally required off-duty meal periods to Appraiser Employees as required by11 applicable Wage Order and Labor Code 512. On average, Appraiser Employees were not provi12 with a legally required off-duty meal period at least two times per workweek.13 56. PLAINTIFF, and the other members of the CALIFORNIA CLASS, are further entit14 to, and do, seek a declaration that the above described business practices are deceptive unfair and15 unlawful.16 57. The practices herein alleged presently continue to occur unabated. As a result of t17 unfair and unlawful business practices described above, PLAINTIFF, and the other members of18 CALIFORNIA CLASS, have suffered legal and economic harm.192021222324

SECOND CAUSE OF ACTIONFor Failure To Pay Overtime Compensation

[Cal. Lab. Code 510, 515.5, 551, 552, 1194 and 1198)(By Anderson and Eskandari and the CALIFORNIA LABOR SUBCLASS)

58. Anderson, Eskandari, and the other members of the CALIFORNIA LABOR25 SUBCLASS, reallege and incorporate by this reference, as though fully set forth herein, paragraph26 through 57 of this Complaint.2728

59. Cal. Lab. Code 510 states in relevant part:Eight hours of labor constitutes a day's work. Any work in excess of eight hours in



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I2345 60.

workday and any work in excess of 40 hours in any one workweek and the first eihours worked on the seventh day of work in any one workweek shall be compensaat the rate ofno less than one and one-halftimes the regular rate ofpay for an employAny work in excess of 12 hours in one day shall be compensated at the rate of no than twice the regular rate of pay for an employee. In addition, any work in excesseight hours on any seventh day of a workweek shall be compensated at the rate ofless than twice the regular rate of pay of an employee.Cal. Lab. Code 551 states that, "Every person employed in any occupation of lab

6 is entitled to one day's rest therefrom in seven."7 61. Cal. Lab. Code 552 states that, "No employer of labor shall cause his employees8 work more than six days in seven."9 62. Cal. Lab. Code 515(d) provides: "For the purpose of computing the overtime rat

I 0 compensation required to be paid to a nonexempt full-time salaried employee, the employee's regI I hourly rate shall be !/40th of the employee's weekly salary.1213141516

63.

64.

Cal. Lab. Code 1194 states:Notwithstanding any agreement to work for a lesser wage, any employee receiving than the legal minimum wage or the legal overtime compensation applicable toemployee is entitled to recover in a civil action the unpaid balance of the full amounthis minimum wage or overtime compensation, including interest thereon, reasonaattorney's fees, and costs of suit.Cal. Lab. Code 1198 provides: "The maximum hours of work and the standard

17 conditions of labor fixed by the commission shall be the maximum hours of work and the stand18 conditions oflabor for employees. The employment ofany employee for longer hours than those fi19 by the order or under conditions of labor prohibited by the order is unlawful."202122232425262728

65. In addition, Labor Code Section 558 provides:(a) Any employer or other person acting on behalf of an employerwho violates, or causes to be violated, a section of this chapter or any proviregulating hours and days of work in any order of the Industrial Welfare Commisshall be subject to a civil penalty as follows:(1) For any initial violation, fifty dollars ($50) for each underpaid employeeeach pay period for which the employee was underpaid in addition to an amosufficient to recover underpaid wages.(2) For each subsequent violation, one hundred dollars ($100) for eunderpaid employee for each pay period for which the employee was under

in addition to an amount sufficient to recover underpaid wages.(3) Wages recovered pursuant to this section shall be paid to the affeemployee.(b) Ifupon inspection or investigation the Labor Commissioner determines that a pehad paid or caused to be paid a wage for overtime work in violation ofany provisiothis chapter, or any provision regulating hours and days of work in any order of



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(b)

(c)

(d)

(e)

(f)

The employee must customarily and regularly exercise discretion and independjudgment; and,The employee must regularly and directly assist a proprietor or an exempt administrat.or,The employee must perform, under only general supervision, work requiring spectraining, experience, or knowledge, or,The employee must execute special assigmnents and tasks under only genesupervision; and,The employee must be primarily engaged in duties which meet the test of exempti

10 No member ofthe CALIFORNIA LABOR SUBCLASS was or is an administrator because they all 11 to meet the requirements for being an "administrator" under the applicable Wage Order.12 69. The Industrial Welfare Commission, in Wage Order 4-2001, at section ( 1)(A)(3 )(h), a13 Labor Code 515 also set forth the requirements which must be complied with to place an employ14 in the "professional" exempt category. For an employee to be "exempt" as a bona fide "professiona15 all the following criteria must be met and DEFENDANT has the burden of proving that:16171819202122

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(a) The employee is primarily engaged in an occupation commonly recognized as a learnor artistic profession. For the purposes of this subsection, "learned or artiprofession" means an employee who is primarily engaged in the performance of:I)

2)

Work requiring knowledge of an advanced type in a field or science orlearning customarily acquired by a prolonged course of specialized intellectinstruction and study, as distinguished from a general academic education afrom an apprenticeship, and from training in the performance of routine menmanual, or physical processes, or work that is an essential part or necessaincident to any of the above work; or,Work that is original and creative in character in a recognized field of artisendeavor, and the result of which depends primarily on the inventiimagination or talent of the employee or work that is an essential part ofincident to any of the above work; and,



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(b)

(c)

3) Whose work is predominately intellectual and varied in character (as oppoto routine mental, manual, mechanical, or physical work) and is of scharacter cannot be standardized in relation to a given period of time.

The employee must customarily and regularly exercise discretion and independjudgment; and.The employee earns a monthly salary equivalent to no less than two (2) times the s

7 minimum wage for full-time employment.8 No member of the CALIFORNIA LABOR SUBCLASS was or is a professional because they all 9 to meet the requirements of being a "professional" within the meaning of the applicable Wage Ord

10 70. Anderson, Eskandari, and other members of the CALIFORNIA LABOR SUBCGA11 do not fit the definition of an exempt executive, administrative, or professional employee because1213141516171819

(a)(b)

(c)

71.

They did not work as executives or administrators;The professional exemption does not apply to PLAINTIFFS, nor to the other membofthe CALIFORNIA LABOR SUBCLASS, because they did not meet all the applicarequirements to work under the professional exemption offor the reasons set forth abin this Complaint; and,The compensationpaid to Appraiser Employees does not meet the definition of a salunder California law and 29 CFR 541.602.For an employee to be classified as exempt as an outside salesman, the employee m

20 primarily perform sales work outside ofthe employer's offices. None of the Appraiser Employees m21 the definition ofan outside salesman because (i) they do not primarily perform sales work, and (ii) t22 do not primarily work outside of the employer's offices and/or their home office.23 72. For an employee to be classified as exempt as an commissioned employee, the emplo24 must meet certain compensation requirements. None of the Appraiser Employees meet the definit25 ofan exempt commissioned employee because (i) they are not compensated through commissions ba26 upon the price of the product sold, (ii) they do not primarily perform sales work, and (iii) commiss27 compensation does not comprise half their compensation on a workweek by workweek basis.28 73. During the class period, the PLAINTIFF, and other members of the CALIFORNIA



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LABOR SUBCLASS, worked more than eight (8) homs in a workday, forty (40) hours in a work we2 and/or worked on the seventh (7th) day of a workweek.3 74. At all relevant times, DEFENDANT failed to pay PLAINTIFF, and other members4 the CALIFORNIA LABOR SUBCLASS, overtime compensation for the hams they have worked5 excess of the maximum hours permissible by law as required by Cal. Lab. Code 510 and 1198, e6 though PLAINTIFF, and the other members ofthe CALIFORNIA LABOR SUBCLASS, were regula7 required to work, and did in fact work, overtime hours.8 75. By virtue of DEFENDANT'S unlawful failure to pay additional compensation to t9 PLAINTIFF, and the other members of the CALIFORNIA LABOR SUBCLASS, for their overt

10 hours, the PLAINTIFF, and the other members of the CALIFORNIA LABOR SUBCLASS, h11 suffered, and will continue to suffer, an economic injury in amounts which are presently unknown12 them and which will be ascertained according to proof at trial.13 76. DEFENDANT knew or should have known that PLAINTIFF, and the other memb14 of the CALIFORNIA LABOR SUBCLASS, were misclassified as exempt and DEFENDA15 systematically elected, either through intentional malfeasance or gross nonfeasance, not to pay them16 their overtime labor as a matter of uniform corporate policy, practice and procedure.17 77. Therefore, Anderson, Eskandari, and the other members of the CALIFORNIA LAB18 SUBCLASS, request recovery of overtime compensation according to proof, interest, costs, as we19 the assessment of any statutory penalties against DEFENDANT, in a sum as provided by the Cal. L20 Code and/or other statutes. To the extent overtime compensation is determined to be owed21 Anderson, Eskandari and the other members of the CALIFORNIA LABOR SUBCLASS who h22 terminated their employment, these employees would also be entitled to waiting time penalties un23 Labor Code 203, which penalties are sought herein. Further, Anderson, Eskandari and the o24 members of the CALIFORNIA LABOR SUBCLASS, are entitled to seek and recover statutory c25 in accordance with California law.26 78. In performing the acts and practices herein alleged in violation of labor laws and27 refusing to provide the requisite overtime compensation, the DEFENDANT acted and continue to28 intentionally, oppressively, and maliciously towards Anderson and Eskandari, and toward the o



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1 members of the CALIFORNIA LABOR SUBCLASS, with a conscious and utter disregard oftheir l2 rights, or the consequences to them, and with the despicable intent of depriving them of their prop3 and legal rights and otherwise causing them injury in order to increase corporate profits at the expe4 of Anderson, Eskandari and the members of the CALIFORNIA CLASS.56789

10 79.

THIRD CAUSE OF ACTIONFor Failure to Provide Accurate Itemized Statements

[Cal. Lab. Code 226)(By Anderson, Eskandari and the CALIFORNIA LABOR SUBCLASS)

Anderson, Eskandari, and the other members of the CALIFORNIA LABOR11 SUBCLASS, reallege and incorporate by this reference, as though fully set forth herein, paragrap12 through 78 ofthis Complaint.13 80. Cal. Labor Code 226 provides that an employer must furnish employees with an14 "accurate itemized statement in writing" showing:15 (1) gross wages earned,(2) total hours worked by the employee, except for any employee whose compensation is so16 based on a salary and who is exempt from payment ofovertime under subdivision (a) ofSec515 or any applicable order of the Industrial Welfare Commission,17 (3) the number of piecerate units earned and any applicable piece rate if the employee is pon a piece-rate basis,18 (4) all deductions, provided that al l deductions made on written orders of the employee maaggregated and shown as one item,19 (5) net wages earned,( 6) the inclusive dates of the period for which the employee is paid,20 (7) the name of the employee and his or her social security number, except that by Januar2008, only the last four digits ofhis or her social security number or an employee identifica21 number other than a social security number may be shown on the itemized statement,(8) the name and address of the legal entity that is the employer, and22 (9) all applicable hourly rates in effect during the pay period and the corresponding numbehours worked at each hourly rate by the employee.2324 81. At all times relevant herein, DEFENDANT violated Labor Code 226, in that25 DEFENDANT failed to provide an accurate wage statement in writing that properly and accura26 itemized the number of hours worked by Anderson, Eskandari and the other members of27 CALIFORNIA LABOR SUBCLASS at the effective regular rates of pay and the effective overt28 rates of pay.



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1 82. DEFENDANT knowingly and intentionally failed to comply with Labor Code 22 causing damages to Anderson, Eskandari and the other members of the CALIFORNIA LAB3 SUBCLASS. These damages include, but are not limited to, costs expended calculating the true ho4 worked and the amount of employment taxes which were not properly paid to state and federal 5 authorities. These damages are difficult to estimate. Therefore, Anderson, Eskandari and the ot6 members of the CALIFORNIA LABOR SUBCLASS may elect to recover liquidated damages7 $50.00 for the initial pay period in which the violation occurred, and $100.00 for each violation8 subsequent pay period pursuant to Labor Code 226, in an amount according to proof at the time9 trial (but in no event more than $4,000.00 for each respective member of the CALIFORNIA LAB

10 SUBCLASS herein).1112 FOURTH CAUSE OF ACTION13 For Failure to Provide Meal and Rest Periods14 [Cal. Lab. Code 226.7 and 512)15 (By Anderson, Eskandari and the CALIFORNIA LABOR SUBCLASS)16 83. Anderson, Eskandari and the other members of the CALIFORNIA LABOR17 SUBCLASS, reallege and incorporate by reference, as though fully set forth herein, paragraph18 through 82 of this Complaint.1920212223242526 part:2728

84. Cal. Lab. Code 512 provide, in relevant part:An employer may not employ an employee for a work period of more than five hoursper day without providing the employee with a meal period ofnot less than 30 minutes,except that if the total work period per day of the employee is no more than six hours,the meal period may be waived by mutual consent ofboth the employer and employee.An employer may not employ an employee for a work period ofmore than 10 hours perday without providing the employee with a second meal period of not less than 30minutes, except that if the total hours worked is no more than 12 hours, the second mealperiod may be waived by mutual consent ofthe employer and the employee only if thefirst meal period was not waived.85. Section 11 ofthe Order4-2001 ofthe Industrial Wage Commission provides, in relev

Meal Periods:(A) No employer shall employ any person for a work period of more than fivehours without a meal period of not less than 30 minutes, except that whe



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part:

(B)

work period ofnotmore than six (6) hours will complete the day's work the mperiod may be waived by mutual consent of the employer and the emploUnless the employee is relieved of all duty during a 30 minute meal periodmeal period shall be considered an "on duty" meal period and counted as worked. An "on duty" meal period shall be permitted only when the nature owork prevents an employee from being relieved ofall duty and when by wragreement between the parties an on-the-job paid meal period is agreed to. written agreement shall state that the employee may, in writing, revokeagreement at any time.Ifan employer fails to provide an employee a meal period in accordance withapplicable provisions of this order, the employer shall pay the employee onhour ofpay at the employee's regular rateofcompensation for each workdaythe meal period is not provided.

86. Section 12ofthe Order 4-2001 ofthe Industrial Wage Commission provides, in rele

Rest Periods:(A)

(B)

Every employer shall authorize and permit employees to take rest periods, winsofar as practicable shall be in the middle ofeach work period. The authorrest period time shall be based on the total hours worked daily at the rate o( 10) minutes net rest time per four(4) hours or major fraction thereof. Howea rest period need not be authorized for employees whose total daily workis less than three and one-half (3-1/2) hours. Authorized rest period timebe counted as hours worked for which there shall be no deduction from waIf an employer fails to provide an employee a rest period in accordance withapplicable provisions of this order, the employer shall pay the employee onhour of pay at the employee's regular rate of compensation for each workthat the rest period is not provided.87. Cal. Lab. Code 226.7 provides:(a) No employer shall require any employee to work during any meal or rest periodmandated by an applicable order of the Industrial Welfare Commission.(b) If an employer fails to provide an employee a meal period or rest period inaccordance with an applicable order ofthe Industrial Welfare Commission, the employershall pay the employee one additional hour of pay at the employee's regular rate ofcompensation for each work day that the meal or rest period is not provided.

88. DEFENDANT intentionally and improperly failed to provide all rest and/or mealperiods without any work or duties to Anderson, Eskandari and the other members ofCALIFORNIA LABOR SUBCLASS as required by law, and by failing to do so DEFENDANT violthe provisions ofLabor Code 226.7.

89. Therefore, Anderson and Eskandari demand on behalfof themselves and the memofthe CALIFORNIA LABOR SUBCLASS, one (I) hour ofpay for each workday in which a rest pe



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1 was not provided as required by law one (I) hour of pay for each workday in which a meal period w2 not provided as required by law.345678 90.

FIFTH CAUSE OF ACTIONFor Failure to Provide Business Expense Rimbursement

[Cal. Lab. Code 2802](By Anderson, Eskandari and the CALIFORNIA LABOR SUBCLASS)

Anderson, Eskandari and the other members of the CALIFORNIA LABOR9 SUBCLASS, reallege and incorporate by reference, as though fully set forth herein, paragraphs

10 through 89 of this Complaint.11 91. Cal. Lab. Code 2802 provides, in relevant part, that:12 An employer shall indemnify his or her employee for all necessary expenditures orlosses incurred by the employee in direct consequence of the discharge of his or her13 duties, or of his or her obedience to the directions of the employer, even thoughunlawful, unless the employee, at the time of obeying the directions, believed them to14 be nnlawful.15 92. At all relevant times herein, DEFENDANT violated Cal. Lab. Code 2802, by16 failing to indemnify and reimburse Anderson, Eskandari and the other Appraiser Employees for 17 expenditures or losses incurred in direct consequence of the discharge oftheir job duties. In particul18 DEFENDANT failed to provide the Appraiser Employees with reimbursement for all of t19 expenses incurred by them in the performance of their job duties, including but not limited20 expenses incurred by the use of their cell phone, home office expenses, tool expenses, came21 expenses, and computer expenses. Although these expenses were necessary expenditures uniform22 incurred by the Appraiser Employees, DEFENDANT failed to indemnify and reimburse for the23 expenses as an employer is required to do under the laws and regulations of California.24 93. Thus, Anderson, Eskandari and the other Appraiser Employees were forced by the25 expectation of DEFENDANT and DEFENDANT's unwritten policy to contribute to the expenses26 the DEFENDANT's business, which expenses must be refunded by DEFENDANT to each employ27 94. Cal. Lab. Code 2802(b) and (c) provide for interest at the statutory post judgment28 rate of 10% simple interest per annum from the date of the expenditure plus attorneys' fees to colle



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reimbursement.2 95. Anderson and Eskandari, therefore, demand reimbursement for all expenditures or3 losses incurred by them and the other Appraiser Employees in direct consequence of the discharg4 their duties, or their obedience to the directions of the DEFENDANT with interest at the statutory 5 and costs under Cal. Labor Code 2802.67 PRAYER8 WHEREFOR, Anderson and Eskandariprays for judgment against each Defendant, jointly 9 severally, as follows:

10 I.I I1213141516171819 2.202122232425262728

On behalf of the CALIFORNIA CLASS:A) That the Court certify the First Cause ofAction asserted by the CALIFORNIA CLA

as a class action pursuant to Cal. Code of Civil Procedure 382;B) An order requiring DEFENDANT to correctly calculate and pay all wages and all su

unlawfuly withheld from compensation due to Anderson, Eskandari and the omembers of the CALIFORNIA CLASS; and,

D) Restitutionary disgorgement ofDEFENDANT'S ill-gotten gains into a fluid fundrestitution of the sums incidental to DEFENDANT'S violations due to AndersEskandari and to the other members of the CALIFORNIA CLASS according to pro

On behalf of the CALIFORNIA LABOR SUBCLASS:A) That the Court certify the Second, Third and Fourth Causes ofAction asserted by

CALIFORNIA LABOR SUBCLASS as a class action pursuant to Cal. Code of CProcedure 382;

B) Compensatory d a m a ~ e s , according to proof at trial, including compensatory damafor overtime compensation due PLAINTIFF and the other members ofCALIFORNIA LABOR SUBCLASS, plus interest thereon at the statutory rate;

C) The wages of all terminated employees in the CALIFORNIA LABOR SUBCLASSa penalty from the due date thereof at the same rate until paid or until an action thereis commenced, in accordance with Cal. Lab. Code 203;



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10I I12131415

D)

F)

Reimbursement of all business expenses incuned by the Appraiser Employeeaccordance with Cal. Labor Code 2802; and,The greater ofall actual damages or fifty dollars ($50) for the initial pay period in wha violation occurs and one hundred dollars ($1 00) per each member ofCALIFORNIA LABOR SUBCLASS for each violation in a subsequent pay period,exceeding an aggregate penalty of four thousand dollars ($4,000), and an award of cfor violation of Cal. Lab. Code 226.

On all claims:A)B)

C)

An award of interest, including prejudgment interest at the legal rate.An award of penalties, statutory damages, and cost of suit, as. allowable under theNeither this prayer nor any other allegation or prayer in this Complaint is to be constras a request, under any circumstance, that would result in a request for attorneys'or costs available under Cal. Lab. Code 218.5;Such other and further relief as the Court deems just and equitable.

16 Dated: December 17,2010 BLUMENTHAL, NORDREHAUG & BHOWMIK171819202122232425262728

/ - : : : . : ~ : : : ~ : : : : : ~ : : : . - : : : . ~ -::.::: ~ - - - ~ \ . . . . ~ -- ')B y : ~ - . . ~ ~ ...- - : : . : : : : ~ : : : : -

Norman B. B Iuiil:tlnthal, Esq. ---KyleR. Nordrehaug, Esq.Attomeys for Cross-Complainants



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1 DEMAND FOR JURY TRIAJL2 Anderson andEskandari demands a jury trial on issues triable to a jury.34 Dated: December 17,201056789

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BlLUME.NTHAL, NORDREHAUG & BHOWMIK

Andersen v. First Service - Complaint

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Transcript of Andersen v. First Service - Complaint