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1 BLUMENTHAL, NORDREHAUG & BHOWMIK


Norman B. Blumenthal (State Bar #068687)
2 KyleR. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 2255 Calle Clara DEC i1 '10 p.r..
La Jolla, CA 92037
4 Telephone: (858)551-1223
Facsimile: (858) 551-1232
ull.en
5
Attorneys for Defendant Anderson and Eskandari P llJ
flMI,BIJSINESSOFFICE
CENTRALDMSION
6
~EC 1., 2010
7 suPERiOR couRr
C~oiEGO COUNTY. Cft
8

9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF SAN DIEGO
12

13

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


[Class Action]
15 Plaintiff,
v. CROSS-COMPLAINT BY DEFENDANTS
16
RICHARD ANDERSON AND SAFA
17 THE DORE GROUP, et al. ESKANDARI

18 Defendants.

19
Judge: Hon. Joel M. Pressman
20 RICHARD ANDERSON and SAFA Dept.: 66
ESKANDARI, individually, and on behalf
21 of all others similarly situated, Action Filed: October 13, 2010

22 Cross-Complainants,
v.
23

24
FIRSTSERVICE PGP VALUATION, INC.,
25 and ROES 1 to 15, Inclusive

26 Cross-Defendants

27

28

CROSS-COMPLAINT
Case No. 37-2010-00102292-CU-NP-CTL
Cross-Complainants RICHARD ANDERSON and SAF A ESKANDARI (hereinafter

2 "Appraisers"), hereby cross-complain against FIRSTSERVICE PGP VALUATION INC., and allege

3 on information and belief, except for their own acts and knowledge which are alleged based on

4 personal knowledge, the following:

6 THE PARTIES

7 I. FIRSTSERVICE PGP VALUATION INC., (hereinafter "FSPGP" of"DEFENDANT")

8 is an Oregon company headquartered in Carlsbad, California. Founded in 1978 in Portland, Oregon,

9 the Defendant began as the firm of Palmer, Groth and Pietka, and was later known as PGP Valuation.

10 Today, FSPGP is the fully national FirstService PGP Valuation- a member ofFirstService Real Estate

11 Advisors, subsidiary ofFirstService Corporation. FSPGP purports to be a leader in asset valuation and

12 advisory services. FSPGP is part of the FirstService family of companies, an international holding

13 entity with interests ranging from residential to commercial real estate services delivered through

14 entities such as Colliers Mccaulay Nicolls (CMN), the largest member of the Colliers International

15 organization.

16 2. FSPGP business model involves the providing of appraisal and asset valuation services.

17 Currently, FSPGP employees 200 employees in offices located across the U.S. and California. FSPGP

18 provides valuation services to a range of private, institutional, financial, government and corporate

19 clients with commercial and investment properties and portfolio needs using a team of appraiser
20 employees.

21 3. As part of the production side ofFSPGP's business, FSPGP employs a fleet of

22 Appraiser Employees to perform the appraisal and asset valuation services sold by FSPGP. The primary

23 job duties of these employees are to perform appraisals and valuations according to established FSPGP

24 procedures and guidelines. These Appraiser Employees have been given the job titles of"Appraiser"

25 and/or "Senior Appraiser." Although FSPGP uses these various titles for Appraiser Employees, all such

26 employees perform the same tasks and occupy the same position within the FSPGP business enterprise.

27 The various titles do not indicate differingjob duties, but rather reflect seniority and experience for the

28 Appraiser Employee Therefore, collectively, all employees of FSPGP in a position with the title of

CROSS-COMPLAINT
1 Case No. 37-2010-00102292-CU-NP-CTL
1 "Appraiser" and/or "Senior Appraiser" are referred to in this Complaint as "Appraiser Employees."
2 4. Appraiser Employees primarily perform appraisal services as directed by FSPGP.

3 FSPGP uniformly and systematically classifies Appraiser Employees as "exempt" from receiving

4 overtime. FSPGP uniformly and systematically varies the amount of compensation paid to Appraiser

5 Employees based upon the amount or volume of work performed by the Appraiser Employees.

6 Moreover, Appraiser Employees are not paid by commission and do not perform sales. This action

7 challenges the classification of Appraiser Employees as exempt.


8 5. Richard Anderson ("Anderson") was employed by DEFENDANT in California as an

9 Appraiser Employee from October 2007 though August 2010, when his employment terminated. As

10 an Appraiser Employee, Anderson regularly worked overtime hours, but was not paid overtime

11 compensation for this work, because of FSPGP's blanket classification of the Appraiser Employee

12 position as exempt. On average, Anderson worked between 10 and 15 overtime hours per week.

13 Anderson received compensation from DEFENDANT which varied based upon the volume of work

14 performed. At the time of employment termination, DEFENDANT failed to pay Anderson all wages

15 owed to him, including the unpaid overtime wages.


16 6. Safa Eskandari ("Eskandari") was employed by DEFENDANT in California as an

17 Appraiser Employee from October 2007 though August 2010, when her employment terminated. As

18 an Appraiser Employee, Eskandari regularly worked overtime hours, but was not paid overtime

19 compensation for this work, because of FSPGP's blanket classification of the Appraiser Employee

20 position as exempt. On average, Eskandari worked 20-25 overtime hours per week, and frequently

21 worked more than twelve hours in a workday. Eskandari received compensation from DEFENDANT

22 which varied based upon the volume of work performed. At the time of employment termination,

23 DEFENDANT failed to pay Eskandari all wages owed to her, including the unpaid overtime wages.
24 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 not

26 customarily required to have attained a four-year specialized academic degree. The Appraiser

27 Employees primarily perform routine mental, manual, mechanical and physical work in the preparation

28 of appraisals for customers ofFSPGP according to rigid and established appraisal guidelines.

CROSS-COMPLAINT
2 Case No. 37-2010-00102292-CU-NP-CTL
I 8. For the DEFENDANT's business, PLAINTIFF and the other Appraiser Employees
2 functioned as working members on the DEFENDANT'S staff. As defined by DEFENDANT's
3 comprehensive corporate policies and procedures, the primary job duties ofPLAINTIFFS and the other

4 Appraiser Employees employed by FSPGP were and are to perform appraisal work as directed by
5 FSPGP. DEFENDANT has established specific procedures and guidelines which govern and control
6 every aspect of the work performed by the Appraiser Employees. These standardized procedures mirror
7 the realities of the workplace evidencing a uniformity of work among the Appraiser Employees and
8 negate any exercise of independent judgment and discretion.
9 9. The work schedule for Appraiser Employees was set by DEFENDANT. Generally,
10 Appraiser Employees work long hours five days a week, and additional work on the weekends. As a
ll result, Appraiser Employees regularly work an average of fifteen to twenty hours of overtime each
12 workweek.

13 10. PLAINTIFFS and the other Appraiser Employees were not provided with overtime
14 compensation and other benefits required by law as a result of being classified as "exempt" by

15 DEFENDANT. DEFENDANT's classification of Appraiser Employees as exempt is and was incorrect


16 and contrary to California law.
17 11. PLAINTIFF brings this class action on behalf of himself and a California Class
18 consisting of all Appraiser Employees, as that term is defined herein, who are or previously were

19 employed by FSPGP in California (the "CALIFORNIA CLASS") during the period beginning on the
20 date four years before the filing of this action and ending on the date as determined by the Court (the
21 "CALIFORNIA CLASS PERIOD").
22 12. As a matter of company policy, practice, and procedure, DEFENDANT

23 has unlawfully, unfairly and/or deceptively classified every Appraiser Employee as exempt based on
24 job title alone, failed to pay the required overtime compensation and otherwise failed to comply with
25 all applicable labor laws with respect to these Appraiser Employees. Further, during the relevant period,
26 DEFENDANT failed to reimburse Appraiser Employees for all business-related expenses incun·ed in
27 the discharge of their job duties for DEFENDANT's benefit, such as cell phone expenses, home office
28 expenses, camera expenses, tool expenses and computer expenses.

CROSS-COMPLAINT
3 Case No. 37-2010-00102292-CU-NP-CTL
1 13. The Defendants named in this Complaint, including ROES 1 tlnough 50, inclusive, are,

2 and at all times mentioned herein were, the agents, servants, and/or employees of the DEFENDANT

3 and that each of these defendants were acting within the course of scope of his, her or its authority as

4 the agent, servant and/or employee of each of the DEFENDANT, and personally participated in the

5 conduct alleged herein and/or controlled the DEFENDANT with respect to the conduct alleged herein.

6 Consequently, all the defendants are jointly and severally liable to the PLAINTIFFS and the other

7 members of the CALIFORNIA CLASS, for the losses sustained as a proximate . result of

8 DEFENDANT's conduct.

10 THE CONDUCT

11 The Unlawful, Unfair, and/or Deceptive Failure to Have in Place a Company-Wide Policy,

12 Practice and Procedure to Correctly Determine Whether the Appraiser Employees were Properly

13 Classified as Exempt and Failing to Pay Overtime Wages for Overtime Hours Worked

14 14. The primary duties required of the Appraiser Employees as defined by DEFENDANT

15 are executed by the Appraiser Employee tlnough the performance of non-exempt labor within a defined

16 skill set, involving the performance of appraisal services following established procedures and

17 guidelines and performing tasks as directed or assigned by DEFENDANT.

18 15. Although PLAINTIFFS and the Appraiser Employees primarily performed the non-

19 exempt labor described herein above as set forth by the DEFENDANT in the company's comprehensive

20 and uniform corporate policies, procedures and protocols, DEFENDANT instituted a blanket

21 classification policy, practice and/or procedure by which all of these Appraiser Employees were all

22 classified as exempt from overtime compensation. By reason of this uniform exemption practice, policy

23 and procedure applicable to all other Appraiser Employees who performed this non-exempt labor,

24 DEFENDANT committed acts of unfair competition in violation of the California Unfair Competition

25 Law, Cal. Bus. & Prof. Code§ 17200 (the "UCL"), by engaging in a company-wide policy, practice and

26 procedure which failed to properly classify the other Appraiser Employees and thereby failed to pay

27 them overtime wages for documented overtime hours worked. The proper classification of these

28 employees is the DEFENDANT'S burden. As a result ofDEFENDANT'S intentional disregard of the

CROSS-COMPLAINT
4 Case No. 37-2010-00102292-CU-NP-CTL
1 obligation to meet this burden, DEFENDANT failed to pay all required overtime compensation for

2 work performed by the members of the CALIFORNIA CLASS and violated the California Labor Code

3 and regulations promulgated thereunder as herein alleged.

4 16. DEFENDANT, as a matter oflaw, has the burden of proving that (a) Appraiser

5 Employees are properly classified as exempt and that (b) DEFENDANT otherwise complies with

6 applicable laws. Other than the initial classification of the PLAINTIFFS and other Appraiser

7 Employees as exempt from being paid overtime based on job title alone, DEFENDANT had no

8 business policy, practice, or procedure to ensure that the Appraiser Employees were properly classified

9 as exempt, and in fact, as a matter of corporate policy erroneously classified Anderson, Eskandari and

I0 the other Appraiser Employees as exempt.

11 17. During their employment with DEFENDANT, the Appraiser Employees worked on

12 the production side of DEFENDANT'S enterprise, performing non-exempt duties, but were

13 nevertheless classified by DEFENDANT as exempt from overtime pay. The Appraiser Employees

14 worked more than eight (8) hours a day, forty (40) hours a week, and/or on the seventh (7th) of a

15 workweek.

16 18. The Appraiser Employees employed by DEFENDANT were not primarily engaged in

17 work of a type that was or now is directly related to management policies or general business

18 operations, when giving these words a fair but narrow construction. The other Appraiser Employees

19 employed by DEFENDANT were also not primarily engaged in work of a type that was or now is

20 performed at the level of the policy or management of the DEFENDANT. The Appraiser Employees

21 employed by DEFENDANT were also not primarily engaged in work requiring knowledge of an

22 advanced type in a field or science or learning customarily acquired by a prolonged course of

23 specialized intellectual instruction and study, but rather their work primarily involves the performance

24 of routine mental, manual, and/or physical processes. The Appraiser Employees employed by

25 DEFENDANT were also not primarily engaged in work that is predominantly intellectual and varied

26 in character, but rather is routine mental, manual, mechanical, and/or physical work that is of such

27 character that the output produced or the result accomplished can be standardized in relation to a given

28 period of time. In fact, the Appraiser Employees are compensated and reviewed primarily based upon

CROSS-COMPLAINT
5 Case No. 37-2010-00102292-CU-NP-CTL
1 their production rate and the volume of work routine performed. The work of the Appraiser Employees
2 of the DEFENDANT was work wherein the members of the CALIFORNIA CLASS were primarily

3 engaged in the day to day business operations of the DEFENDANT to perform appraisal services in
4 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 specialized
6 skill set does not mean that the Appraiser Employees employed by DEFENDANT are exempt from
7 overtime wages. Indeed, the exercise of discretion and independent judgment must be more than the
8 use of a highly technical skill set described in a manual or other sources. The work that Appraiser
9 Employees employed by DEFENDANT was and are primarily engaged in performing day to day
10 activities is the work that is required to be performed as part of the day to day business of
11 DEFENDANT to deliver the DEFENDANT's product to DEFENDANT's customers. As a result, the
12 PLAINTIFFS and other Appraiser Employees employed by DEFENDANT were primarily engaged in

13 work that falls on the production side of the administrative/production worker dichotomy and these
14 Appraiser Employees should therefore have been classified as non-exempt employees.
15 20. Appraiser Employees do not perform sales work and are not compensated through
16 commtsswns.

17 21. Appraiser Employees and all other members of the CALIFORNIA CLASS, are and

18 were uniformly classified and treated by DEFENDANT as exempt at the time of hire and thereafter,
19 DEFENDANT failed to take the proper steps to determine whether the members of the CALIFORNIA

20 CLASS, were properly classified under the applicable Industrial Welfare Commission Wage Order
21 (Wage Order No. 4-2001) and the California Labor Code as exempt from applicable state labor laws.
22 Since DEFENDANT affirmatively and wilfully misclassified the members of the CALIFORNIA
23 CLASS complied with California Labor Laws, DEFENDANT'S practices violated and continue to
24 violate the law. In addition, the DEFENDANT acted deceptively by falsely and fraudulently telling
25 PLAINTIFF and each member of the CALIFORNIA CLASS that they were exempt from overtime pay
26 when DEFENDANT knew or should have known that this statement was false and not based on known
27 facts. The DEFENDANT also acted unfairly by violating the labor laws of California. As a result of
28 this policy and practice, DEFENDANT violated the UCL.

CROSS-COMPLAINT
6 Case No. 37-2010-00102292-CU-NP-CTL
1 The Unfair, Unlawful and/or Deceptive Failure to Provide Accurate Wage Statements

2 22. DEFENDANT failed to provide and still fails to provide Appraiser Employees with a

3 wage statement in writing which accurately sets forth gross wages earned, all applicable hourly rates

4 in effect during the pay period and the corresponding number of hours worked at each hourly rate by

5 the Appraiser Employees. This conduct violates California Labor Code§ 226. The paystub also does

6 not accurately display anywhere the Appraiser Employees' overtime hours and applicable rates of

7 overtime pay for the pay period.

8 23. By reason of this uniform conduct applicable to CALIFORNIA CLASS members,

9 DEFENDANT committed acts of unfair competition in violation of the California Unfair Competition

10 Law, Cal. Bus. & Prof. Code § 17200 (the "UCL"), by engaging in a company-wide policy and

11 procedure which failed to correctly classifY the CALIFORNIA CLASS of Appraiser Employees as

12 exempt. The proper classification of these employees is the DEFENDANT's burden. As a result of

13 DEFENDANT's intentional disregard of the obligation to meet this burden, DEFENDANT failed to

14 properly calculate and/or pay all required overtime compensation for work performed by the members

15 of the CALIFORNIA CLASS and violated the applicable Wage Order, the California Labor Code and

16 the regulations promulgated thereunder as herein alleged.

17

18 THE UCL REMEDIES

19 24. As a result of DEFENDANT'S UCL violation, Anderson and Eskandari, on behalf of

20 themselves and the CALIFORNIA CLASS, seek restitutionary disgorgement of DEFENDANT'S ill-

21 gotten gains into a fluid fund in order to provide restitution of all the money that DEFENDANT were

22 . required by law to pay, but failed to pay, to the CALIFORNIA CLASS members as wages. Anderson

23 and Eskandari also seek all other relief available to them and the Appraiser Employees located in

24 California under California law. Anderson and Eskandari also seeks declaratory relief finding that the

25 employment practices and policies of the DEFENDANT violate California law.

26
27 ·THE CALIFORNIA CLASS

28 25. Anderson and Eskandari bring the First Cause of Action for Unfair, Unlawful and

CROSS-COMPLAINT
7 Case No. 37-2010-00102292-CU-NP-CTL
1 Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the "UCL") as a
2 class action, pursuant to Cal. Code of Civil Procedure § 382 on behalf of a California Class, defined as

3 all individuals who are or previously were employed by FSPGP as a Appraiser Employee as
4 hereinabove defined in California during the period beginning on the date four years before the filing
5 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 CLASS
7 against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly.
8 27. DEFENDANT, as a matter of corporate policy, practice and procedure, and in violation
9 of the applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order Requirements, and
10 the applicable provisions of California law, intentionally, knowingly, and wilfully, engaged in a practice
11 whereby DEFENDANT unfairly, unlawfully, and deceptively instituted a practice to ensure that the
12 Appraiser Employees were not properly classified as non-exempt from the requirements of California

13 Labor Code§§ 510, et seq.


14 28. DEFENDANT has the burden of proof that each and every employee is properly
15 classified as exempt from the requirements of the Cal. Lab. Code§§ 510, et seq. DEFENDANT,
16 however, as a matter of uniform and systematic policy and procedure had in place during the

17 CALIFORNIA CLASS PERIOD and still has in place a policy and practice that misclassifies the
18 members of the CALIFORNIA CLASS as exempt. The DEFENDANT's uniform policy and practice
19 in place at all times during the CALIFORNIA CLASS PERIOD and currently in place is to

20 systematically classify each and every CALIFORNIA CLASS member as exempt from the requirements
21 of the California Labor Code§§ 510, et seq. This common business practice applicable to each and
22 every CALIFORNIA CLASS member can be adjudiqated on a classwide basis as unlawful, unfair,
23 and/or deceptive under Cal. Business & Professions Code §17200, et seq. (the "UCL") as causation,
24 damages, and reliance are not elements of this claim.
25 29. At no time before, during or after their employment with DEFENDANT was any
26 Appraiser Employee reclassified as non-exempt from the applicable requirements of California Labor
27 Code §§ 510, et seq. after each CALIFORNIA CLASS Member was initially, uniformly, and
28 systematically classified as exempt upon being hired.

CROSS-COMPLAINT
8 Case No. 37-2010-00102292-CU-NP-CTL
1 30. Any individual declarations of any employees offered at this time purporting to indicate

2 that one or more Appraiser Employees may have been properly classified is of no force or affect absent

3 contemporaneous evidence that DEFENDANT's uniform system did not misclassifY the PLAINTIFF

4 and other Appraiser Employees as exempt pursuant to Cal. Lab. Code§§ 510, et seq. Absent proof of

5 such a contemporaneous system, DEFENDANT'S business practice is uniformly unlawful, unfair

6 and/or deceptive under the UCL and may be so adjudicated on a class-wide basis. As a result of the

7 UCL violations, the CALIFORNIA CLASS Members are entitled to compel DEFENDANT to provide

8 restitutionary disgorgement of their ill-gotten gains into a fluid fund in order to restitute these funds

9 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 that

11 joinder of all Appraiser Employees is impracticable.

12 32. Common questions of law and fact exist as to members of the CALIFORNIA

13 CLASS, including, but not limited, to the following:

14 (a) Violating the California Unfair Competition Laws, Cal. Bus. & Prof. Code §

15 17200, et seq. (the "UCL"), by unlawfully, unfairly and/or deceptively having


16 in place company policies, practices and procedures that uniformly misclassified

17 Anderson, Eskandari and the members of the CALIFORNIA CLASS as exempt;

18 (b) Committing an act of unfair competition in violation of the UCL, by unlawfully,

19 unfairly, and/or deceptively failing to have in place a company policy, practice


20 and procedure that accurately determined the amount of working time spent by
21 Anderson, Eskandari and the members of the CALIFORNIA CLASS

22 performing non-exempt labor;

23 (c) Committing an act of unfair competition in violation of the UCL, by having in


24 place a company policy, practice and procedure that failed to reclassifY as non-
25 exempt those members of the CALIFORNIA CLASS whose actual job duties are
26 primarily comprised non-exempt job functions;

27 (d) Committing an act of unfair competition in violation of the UCL by violating


28 Cal. Lab. Code §§51 0, et seq. by failing to pay the correct overtime pay to

CROSS-COMPLAINT
9 Case No. 37-2010-00102292-CU-NP-CTL
1 Anderson, Eskandari and the members of the CALIFORNIA CLASS who. were

2 improperly classified as exempt, and retaining the unpaid overtime to the benefit

3 of DEFENDANT;

4 (e) Committing an act of unfair competition in violation of the UCL by violating

5 Cal. Lab. Code § 2802 by failing to provide Anderson, Eskandari and the

6 members of the CALIFORNIA CLASS with reimbursement of expenses

7 incurred by the employee in the discharge of their duties; and,

8 (F) Committing an act of unfair competition in violation of the UCL by violating

9 Cal. Lab. Code § 226 by failing to provide Anderson, Eskandari and the

10 members of the CALIFORNIA CLASS with an accurate itemized statement in

11 writing showing the gross wages earned, the net wages earned, all applicable

12 hourly rates in effect during the pay period and the corresponding number of

13 hours worked at each hourly rate by the employee.

14 33. This Class Action meets the statutory prerequisites for the maintenance of a Class

15 Action as set forth in Cal. Code of Civil Procedure § 382 in that:

16 (a) The persons who comprise the CALIFORNIA CLASS exceed 50 persons and

17 are therefore so numerous that the joinder of all such persons is impracticable

18 and the disposition of their claims as a class will benefit the parties and the

19 Court;

20 (b) Nearly all factual, legal, statutory, and declaratory relief issues that are raised in

21 this Complaint are common to the CALIFORNIA CLASS will apply uniformly

22 to every member of the CALIFORNIA CLASS;

23 (c) The claims of Anderson and Eskandari are typical of the claims of each member

24 of the CALIFORNIA CLASS. Anderson and Eskandari, like all other members

25 of the CALIFORNIA CLASS, were initially classified as exempt upon hiring

26 based on the .defined corporate policies and practices and labored under

27 DEFENDANT'S systematic procedure that failed to properly classifY Appraiser

28

CROSS-COMPLAINT
10 Case No. 37-2010-00102292-CU-NP-CTL
1 Employees. Anderson and Eskandari sustained economic injury as a result of

2 DEFENDANT'S employment practices. Anderson, Eskandari and the member~

3 of the CALIFORNIA CLASS were and are similarly or identically harmed by

4 the same unlawful, deceptive, unfair and pervasive pattern of misconduct


5 engaged in by the DEFENDANT by deceptively advising all Appraiser

6 Employees that they were exempt from overtime wages based on the defined

7 corporate policies and practices, and unfairly failing to pay overtime to these

8 employees who were improperly classified as exempt.

9 (d) The representatives of the Class, Anderson and Eskandari, will fairly and

10 adequately represent and protect the interest ofthe CALIFORNIA CLASS, and

11 have retained counsel who are competent and experienced in class action
12 litigation. There are no material conflicts between the claims of the

13 representatives and the members of the CALIFORNIA CLASS that would make
14 class certification inappropriate. Counsel for the CALIFORNIA CLASS will
15 vigorously assert the claims of all employees in the CALIFORNIA CLASS.

16 34. In addition to meeting the statutory prerequisites to a Class Action, this

17 action is properly maintained as a Class Action pursuant to Cal. Code of Civil Procedure § 3 82, in that:

18 (a) Without class certification and determination of declaratory, statutory and other

19 legal questions within the class format, prosecution of separate actions by

20 individual members of the CALIFORNIA CLASS will create the risk of:
21 1) Inconsistent or varying adjudications with respect to individual members
22 of the CALIFORNIA CLASS which would establish incompatible
23 standards of conduct for the parties opposing the CALIFORNIA CLASS;
24 and/or,

25 2) Adjudication with respect to individual members of the CALIFORNIA


26 CLASS which would as a practical matter be dispositive of interests of
27 the other members not party to the adjudication or substantially impair
28

CROSS-COMPLAINT
11 Case No. 37-2010-00102292-CU-NP-CTL
1 or impede their ability to protect their interests.
2 (b) The parties opposing the CALIFORNIA CLASS have acted or refused to act on
3 grounds generally applicable to the CALIFORNIA CLASS, making appropriate
4 class-wide relief with respect to the CALIFORNIA CLASS as a whole in that
5 the DEFENDANT uniformly classified and treated the Appraiser Employees
6 as exempt and, thereafter, uniformly failed to take proper steps to determine
7 whether the Appraiser Employees were properly classified as exempt, and
8 thereby denied these employees overtime wages as required by law;
9 1) With respect to the First Cause of Action, the final relief on behalf of the
10 CALIFORNIA CLASS sought does not relate exclusively to restitution
11 because through this claim Anderson and Eskandari seek declaratory
12 relief holding that the DEFENDANT'S policy and practices constitute
13 unfair competition, along with incidental equitable relief as may be
14 necessary to remedy the conduct declared to constitute unfair
15 competition;
16 (c) Common questions oflaw and fact exist as to the members of the CALIFORNIA
17 CLASS, with respect to the practices and violations of California Law as listed
18 above, and predominate over any question affecting only individual members,
19 and a Class Action is superior to other available methods for the fair and
20 efficient adjudication of the controversy, including consideration of:
21 1) The interests of the members of the CALIFORNIA CLASS m
22 individually controlling the prosecution or defense of separate actions in
23 that the substantial expense of individual actions will be avoided to
24 recover the relatively small amount of economic losses sustained by the
25 individual CALIFORNIA CLASS members when compared to the
26 substantial expense and burden of individual prosecution of this
27 litigation;
28

CROSS-COMPLAINT
12 Case No. 37-2010-00102292-CU-NP-CTL
1 2) Class certification will obviate the need for unduly duplicative litigation
2 that would create the risk of:

3 A. Inconsistent or varying adjudications with respect to individual


4 members of the CALIFORNIA CLASS, which would establish
5 incompatible standards of conduct for the DEFENDANT; and/or,
6 B. Adjudications with respect to individual members of the
7 CALIFORNIA CLASS would as a practical matter be dispositive
8 of the interests of the other members not parties to the
9 adjudication or substantially impair or impede their ability to
10 protect their interests;

11 3) In the context of wage litigation because as a practical matter a


12 substantial number of individual class members will avoid asserting their
13 legal rights out of fear of retaliation by DEFENDANT, which may
14 adversely affect an individual's job with DEFENDANT or with a
IS subsequent employer, the Class Action is the only means to assert their
16 claims through a representative; and,

17 4) . A class action is superior to other available methods for the fair and
18 efficient adjudication of this litigation because class treatment will
19 obviate the need for unduly and unnecessary duplicative litigation that
20 is likely to result in the absence of certification of this action pursuant to
21 Cal. Code of Civil Procedure§ 382.
22 35. This Court should permit this action to be maintained as a Class Action pursuant to Cal.
23 Code of Civil Procedure§ 382 because:

24 (a) The questions of law and fact common to the CALIFORNIA CLASS
25 predominate over any question affecting only individual members because the
26 DEFENDANT's employment practices were uniform and systematically applied
27 with respect to the CALIFORNIA CLASS;
28

CROSS-COMPLAINT
13 Case No. 37-2010-00102292-CU-NP-CTL
1 (b) A Class Action is superior to any other available method for the fair and efficient
2 adjudication of the claims ofthe members of the CALIFORNIA CLASS because
3 in the context of employment litigation a substantial number ofindividual Class
4 members will avoid asserting their rights individually out of fear of retaliation
5 or adverse impact on their employment;
6 (c) The members of the CALIFORNIA CLASS exceed 50 people and are therefore
7 so numerous that it is impractical to bring all members of the CALIFORNIA
8 CLASS before the Court;

9 (d) Anderson, Eskandari, and the CALIFORNIA CLASS members, will not be able
10 to obtain effective and economic legal redress unless the action is maintained as
11 a Class Action;
12 (e) There is a community of interest in obtaining appropriate legal and equitable
13 relief for the acts of unfair competition, statutory violations and other
14 improprieties, and in obtaining adequate compensation for the injuries which
15 DEFENDANT's actions have inflicted upon the CALIFORNIA CLASS;
16 (f) There is a community of interest in ensuring that the combined assets of
17 DEFENDANT are sufficient to adequately compensate the members of the
18 CALIFORNIA CLASS for the injuries sustained;
19 (g) DEFENDANT had acted or refused to act on grounds generally applicable to the
20 CALIFORNIA CLASS, thereby making final class-wide relief appropriate with
21 respect to the CALIFORNIA CLASS as a whole;
22 (h) The members of the CALIFORNIA CLASS are readily ascertainable from the
23 business records ofDEFENDANT. The CALIFORNIA CLASS consists of all
24 DEFENDANT'S Appraiser Employees employed in California during the
25 CALIFORNIA CLASS PERJOD; and,
26 (i) Class treatment provides manageable judicial trea~ment calculated to bring a
27 efficient and rapid conclusion to all litigation of all wage and hour related claims
28

CROSS-COMPLAINT
14 Case No. 37-2010-00102292-CU-NP-CTL
I ansmg out of the conduct of DEFENDANT as to the members of the
2 CALIFORNIA CLASS.

3 36. DEFENDANT maintains records from which the Court can ascertain and identify by

4 name and job title, each ofDEFENDANT'S employees who as have been systematically, intentionally

5 and uniformly subjected to DEFENDANT'S corporate policy, practices and procedures as herein

6 alleged. Anderson and Eskandari will seek leave to amend the complaint to include any additional job

7 titles of similarly situated employees when they have been identified.

9 THE CALIFORNIA LABOR SUBCLASS


10 37. Anderson and Eskandari further brings the Second, Third and Fourth causes of action

11 on behalf of a subclass which consists of all members of the CALIFORNIA CLASS who were

12 employed by DEFENDANT during the period beginning on the date three (3) years prior to the filing

13 of the action and ending on the date as determined by the Court ("CALIFORNIA LABOR SUBCLASS

14 PERIOD"), who performed work in excess of eight (8) hours in one day and/or forty (40) hours in one

15 week and/or hours on the seventh (7th) consecutive day of a workweek and did not receive overtime

16 compensation (the "CALIFORNIA LABOR SUBCLASS") pursuant to Cal. Code of Civil Procedure

17 § 382.

18 38. DEFENDANT, as a matter of corporate policy, practice and procedure, and in violation

19 of the applicable California Labor Code ("Labor Code"), and Industrial Welfare Commission ("IWC")

20 Wage Order Requirements intentionally, knowingly, wilfully, and systematically misclassified

21 PLAINTIFF and the other members of the CALIFORNIA CLASS and the CALIFORNIA LABOR

22 SUBCLASS as exempt from overtime wages and other labor laws based on Defendant's comprehensive

23 policies and procedures in order to avoid the payment of overtime wages by misclassifying their

24 positions as exempt from overtime wages and other labor laws. To the extent equitable tolling operates

25 to toll claims by the CALIFORNIA LABOR SUBCLASS against DEFENDANT, the class period

26 should be adjusted accordingly.

27 39. DEFENDANTS have intentionally and deliberately created a number of job levels and
28

CROSS-COMPLAINT
15 Case No. 37-2010-00!02292-CU-NP-CTL
1 job titles such as "senior appraiser" and/or "appraiser", often with additional designations. These titles

2 were distributed in order to create the superficial appearance of a number of unique jobs, when in fact,

3 these jobs are substantially similar and can be easily grouped together for the purpose of determining

4 whether they were all misclassified. One ofDEFENDANT's purposes in creating and maintaining this

5 multi-leveljob classification scheme is to create an artificial barrier to discovery and class certification

6 for all employees similarly misclassified as exempt. DEFENDANT has uniformly misclassified these

7 CALIFORNIA LABOR SUBCLASS members as exempt and denied them overtime wages and other

8 benefits to which non-exempt employees are entitled in order to unfairly cheat the competition and

9 unlawfully profit.

10 40. DEFENDANT maintains records from which the Court can ascertain and identifY by

11 job title and name, each of DEFENDANT's employees who as CALIFORNIA LABOR SUBCLASS

12 members have been systematically, intentionally and uniformly misclassified as exempt as a matter of

13 DEFENDANT'S corporate policy, practices and procedures. PLAINTIFF will seek leave to amend the

14 complaint to include these additional job titles when they have been identified.

15 41. The CALIFORNIA LABOR SUBCLASS is so numerous that joinder ofall members,

. 16 which number over 50 Appraiser Employees, is impracticable.

17 42. Common questions of law and fact exist as to members of the CALIFORNIA LABOR

18 SUBCLASS, including, but not limited, to the following:

19 (a) Whether DEFENDANT unlawfully failed to pay overtime compensation to

20 members of the CALIFORNIA LABOR SUBCLASS in violation of the

21 California Labor Code and California regulations and the applicable Califomia

22 Wage Order;

23 (b) Whether the members of the CALIFORNIA LABOR SUBCLASS are non-

24 exempt employees entitled to overtime compensation for overtime hours worked

25 under the overtime pay requirements of California Law;

26 (c) Whether DEFENDANT'S policy and practice of classifYing the CALIFORNIA

27 LABOR SUBCLASS members as exempt from overtime compensation and

28
CROSS-COMPLAINT
16 Case No. 37-2010-00102292-CU-NP-CTL
failing to pay the CALIFORNIA LABOR SUBCLASS members overtime
2 violate applicable provisions of Califomia law;
3 (d) Whether DEFENDANT unlawfully failed to keep and furnish California
4 members with accurate records of overtime hours worked;
5 (e) Whether DEFENDANT'S policy and practice offailing to pay members ofthe
6 CALIFORNIA LABOR SUBCLASS all wages when due within the time
7 required by law after their employment ended violates California law;
8 (f) Whether DEFENDANT engaged in a common course offailing to reimburse the
9 Appraiser Employees for expenses incurred in the discharge of their job duties;
10 and,
11 (f) The proper measure of damages and penalties owed to the members of the
12 CALIFORNIA LABOR SUBCLASS.
13 43. DEFENDANT, as a matter of corporate policy, practice and procedure, erroneously

14 classified all Appraiser Employees as exempt from overtime wages and other labor laws. All Appraiser

15 Employees, including Anderson and Eskandari, performed the same primary functions and were paid

16 by DEFENDANT according to uniform and systematic company procedures, which, as alleged herein

17 above, failed to correctly pay overtime compensation for overtime hours worked. This business practice

18 was uniformly applied to each and every member of the CALIFORNIA LABOR SUBCLASS, and

19 therefore, the propriety of this conduct can be adjudicated on a class-wide basis.


20 44. DEFENDANT violated the rights of the CALIFORNIA LABOR SUBCLASS under
21 Califomia law by:

22 (a) Violating Cal. Lab. Code§§ 510, et seq. by misclassifying and thereby failing
23 to pay the members of the CALIFORNIA LABOR SUBCLASS the correct
24 overtime pay for a work day longer than eight (8) hours, a workweek longer than
25 forty (40) hours, and/or all hours worked on the seventh (7th) day of a workweek
26 for which DEFENDANT is liable pursuant to Cal. Lab. Code§ 1194;
27 (b) Violating Cal. Lab. Code§§ 201, 202 and/or 203, which provides that when an
28

CROSS-COMPLAINT
17 Case No. 37-2010-00102292-CU-NP-CTL
1 employee is discharged or quits from employment, the employer must pay the

2 employee all wages due without abatement, by failing to tender full payment

3 and/or restitution of wages owed or in the manner required by California law to

4 PLAINTIFF and the other members of the CALIFORNIA LABOR SUBCLASS

5 who have terminated their employment;

6 (c) Violating Cal. Lab. Code § 2802, by failing to provide Appraiser Employees

7 with reimbursement of expenses incurred by these employees in the discharge

8 of their job duties as an employee of DEFENDANT

9 (d) Violating Cal. Lab. Code § 226 by failing to provide Appraiser Employees who

10 were improperly classified as exempt with an accurate itemized statement in

11 writing showing the gross wages earned, the net wages earned, all applicable

12 hourly rates in effect during the pay period and the corresponding number of

13 hours worked at each hourly rate by the employee.

14 45. This Class Action meets the statutory prerequisites for the maintenance of a Class

15 Action as set forth in Cal. Code of Civil Procedure§ 382, in that:

16 (a) The persons who comprise the CALIFORNIA LABOR SUBCLASS exceed 50

17 individuals and are therefore so numerous that the joinder of all such persons is

18 impracticable and the disposition of their claims as a class will benefit the

19 parties and the Court;

20 (b) Nearly all factual, legal, statutory, and declaratory relief issues that are raised in

21 this Complaint are common to the CALIFORNIA LABOR SUBCLASS and will

22 apply uniformly to every member of the CALIFORNIA LABOR SUBCLASS;

23 (c) The claims of Anderson and Eskandari are typical of the claims of each member

24 of the CALIFORNIA LABOR SUBCLASS. Anderson and Eskandari, like all

25 other members of the CALIFORNIA LABOR SUBCLASS, were Appraiser

26 Employee s and were improperly classified as exempt and denied overtime pay

27 as a result ofDEFENDANT'S systematic classification practices. Anderson and

28

CROSS-COMPLAINT
18 Case No. 37-2010-00102292-CU-NP-CTL
1 Eskandari and all other members of the CALIFORNIA LABOR SUBCLASS

2 sustained economic injuries arising from DEFENDANT'S violations of the laws

3 of California; and,

4 (d) Anderson and Eskandari will fairly and adequately represent and protect the

5 interest of the CALIFORNIA LABOR SUBCLASS, and has retained counsel

6 who are competent and experienced in Class Action litigation. There are no

7 material conflicts between the claims of Anderson and Eskandari and the

8 members of the CALIFORNIA LABOR SUBCLASS that would make class

9 certification inappropriate. Counsel for the CALIFORNIA LABOR

10 SUBCLASS will vigorously assert the claims of all Class Members.

11 46. In addition to meeting the statutory prerequisites to a Class Action, this action is

12 properly maintained as a Class Action pursuant to Cal. Code of Civil Procedure § 382, in that:

13 (a) Without class certification and determination of deClaratory, statutory and other

14 legal questions within the class format, prosecution of separate actions by

15 individual members of the CALIFORNIA LABOR SUBCLASS will create the

16 risk of:

17 1) Inconsistent or varying adjudications with respect to individual members

18 of the CALIFORNIA LABOR SUBCLASS which would establish

19 incompatible standards of conduct for the parties opposing the

20 CALIFORNIA LABOR SUBCLASS; or,

21 2) Adjudication with respect to individual members of the CALIFORNIA

22 LABOR SUBCLASS which would as a practical matter be dispositive

23 of interests of the other members not party to the adjudication or

24 substantially impair or impede their ability to protect their interests.

25 (b) The parties opposing the CALIFORNIA LABOR SUBCLASS have acted or

26 refused to act on grounds generally applicable to the CALIFORNIA LABOR

27 SUBCLASS, making appropriate class-wide relief with respect to the

28

CROSS-COMPLAINT
19 Case No. 37-2010-00102292-CU-NP-CTL
1 CALIFORNIA LABOR SUBCLASS as a whole in that the DEFENDANT
2 uniformly classified and treated the Appraiser Employees as exempt and,
3 thereafter, uniformly failed to take proper steps to determine whether the
4 Appraiser Employees were properly classified as exempt, and thereby denied
5 these employees overtime wages as required by law;
6 (c) Common questions of law and fact predominate as to the members of the
7 CALIFORNIA LABOR SUBCLASS, with respect to the practices and violations
8 of California Law as listed above, and predominate over any question affecting
9 only individual members, and a Class Action is superior to other available
10 methods for the fair and efficient adjudication of the controversy, including
11 consideration of:
12 1) The interests of the members of the CALIFORNIA LABOR SUBCLASS
13 in individually controlling.the prosecution or defense of separate actions
14 in that the substantial expense of individual actions will be avoided to
15 recover the relatively small amount of economic losses sustained by the
16 individual CALIFORNIA LABOR SUBCLASS members when
17 compared to the substantial expense and burden of individual
18 prosecution of this litigation;
19 2) Class certification will obviate the need for unduly duplicative litigation
20 that would create the risk of:
21 A. Inconsistent ot varying adjudications with respect to individual
22 members of the CALIFORNIA LABOR SUBCLASS, which
23 would establish incompatible standards of conduct for the
24 DEFENDANT; and/or,
25 B. Adjudications with respect to individual members of the
26 CALIFORNIA LABOR SUBCLASS would as a practical matter
27 be dispositive of the interests of the other members not parties to
28

CROSS-COMPLAINT
20 Case No. 37-2010-00102292-CU-NP-CTL
1 the adjudication or substantially impair or impede their ability to

2 protect their interests;

3 3) In the context of wage litigation because a substantial number of


4 individual class members will avoid asserting their legal rights out of

5 fear of retaliation by DEFENDANT, which may adversely affect an

6 individual's job with DEFENDANT or with a subsequent employer, the


7 Class Action is the only means to assert their claims through a
8 representative; and,

9 4) A class action is superior to other available methods for the fair and
10 efficient adjudication of this litigation because class treatment will
11 obviate the need for unduly and unnecessary duplicative litigation that
12 is likely to result in the absence of certification of this action pursuant to

13 Cal. Code of Civil Procedure § 3 82.

14 47. This Court should permit this action to be maintained as a Class Action pursuant to Cal.

15 Code of Civil Procedure § 382 because:

16 (a) The questions of law and fact common to the CALIFORNIA LABOR
17 SUBCLASS predominate over any question affecting only individual members;
18 (b) A Class Action is superior to any other available method for the fair and efficient
19 adjudication of the claims of the members of the CALIFORNIA LABOR
20 SUBCLASS because in the context of employment litigation a substantial
21 number of individual Class members will avoid asserting their rights
22 individually out of fear of retaliation or adverse impact on their employment;
23 (c) The members ofthe CALIFORNIA LABOR SUBCLASS exceed 50 individuals
24 and are therefore so numerous that it is impractical to bring all members ofthe
25 CALIFORNIA LABOR SUBCLASS before the Court;
26 (d) Anderson and Eskandari, and the other CALIFORNIA LABOR SUBCLASS
27 members, will not be able to obtain effective and economic legal redress unless
28

CROSS-COMPLAINT
21 Case No. 37-2010-00102292-CU-NP-CTL
1 the action is maintained as a Class Action;

2 (e) There is a community of interest in obtaining appropriate legal and equitable

3 relief for the acts of unfair competition, statutory violations and other

4 improprieties, and in obtaining adequate compensation for the damages and

5 injuries which DEFENDANT'S actions have inflicted upon the CALIFORNIA

6 LABOR SUBCLASS;

7 (f) There is a community of interest in ensuring that the combined assets of

8 DEFENDANT are sufficient to adequately compensate the members of the

9 CALIFORNIA LABOR SUBCLASS for the injuries sustained;

10 (g) DEFENDANT has acted or refused to act on grounds generally applicable to the

11 CALIFORNIA LABOR SUBCLASS, thereby making final class-wide relief


12 appropriate with respect to the CALIFORNIA LABOR SUBCLASS as a whole;

13 (h) The members of the CALIFORNIA LABOR SUBCLASS are readily


14 ascertainable from the business records of DEFENDANT. The CALIFORNIA

15 LABOR SUBCLASS consists of those Appraiser Employees who worked

16 overtime hours and who were not paid overtime; and,

17 (i) Class treatment provides manageable judicial treatment calculated to bring a

18 efficient and rapid conclusion to all litigation of all wage and hour related claims

19 arising out of the conduct of DEFENDANT.

20
JURISDICTION AND VENUE
21
48. This Court has jurisdiction over this Action pursuant to the California Code of
22
Civil Procedure, Section 410.10 and California Business & Professions Code, Section 17203.
23
This Action is brought as a Class Action on behalf of similarly situated employees of FSPGP
24
pursuant to California Code of Civil Procedure, Section 382.
25
49. Venue is proper in this Court pursuant to California Code of Civil Procedure,
26
Sections 395 and 395.5, because (i) FSPGP instituted the underlying action against Anderson
27
and Eskandari in this Court, (ii) FSPGP committed the alleged wrongful conduct in San Diego
28

CROSS-COMPLAINT
22 Case No. 37-2010-00102292-CU-NP-CTL
1 County against Anderson and Eskandari, and (iii) Anderson and Eskandari reside in San Diego

2 County.

3
FIRST CAUSE OF ACTION
4
For Unlawful Business Practices
5
[Cal. Bus. And Prof. Code§ 17200 et seq.)
6
(By Anderson and Eskandari and the CALIFORNIA CLASS and against All Defendants)
7
50. Anderson and Eskandari, and the other members of the CALIFORNIA CLASS,
8
reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 49 of
9
this Complaint.
10
51. DEFENDANT is a "person" as that term is defined under Cal. Bus. and Prof. Code
11
§ 17021.
12
52. California Business & Professions Code § 17200 et seq. (the "UCL") defines unfair
13
competition as any unlawful, unfair, or fraudulent business act or practice. Section 17203 authorizes
14
injunctive, declaratory, and/or other equitable relief with respect to unfair competition as follows:
15
Any person who engages, has engaged, or proposes to engage in unfaircompetition may
16 be enjoined in any court of competent jurisdiction. The court may make such orders or
judgments, including the appointment of a receiver, as may be necessary to prevent the
17 use or employment by any person of any practice which constitutes unfair competition,
as defined in this chapter, or as may be necessary to restore to any person in interest any
18 money or property,. real or personal, which may have been acquired by means of such
unfair competition.
19
California Business & Professions Code § 17203.
20
53. By the conduct alleged herein, DEFENDANT has engaged and continues to engage in
21
a business practice which violates California law, including but not limited to provisions. of the Wage
22
Orders, the California Labor Code, the Fair Labor Standards Act, and the opinions of the Department
23
of Labor Standards Enforcement, for which this Court should issue declaratory, and other equitable
24
relief, pursuant to Cal. Bus. & Prof. Code § 17203, as may be necessary to prevent and remedy the
25
conduct held to constitute unfair competition.
26
54. By and through the unfair and unlawful business practices described herein above,
27
DEFENDANT has obtained valuable property, money, and services fro mAnderson, Eskandari, and the
28

CROSS-COMPLAINT
23 Case No. 37-2010-00102292-CU-NP-CTL
1 other members of the CALIFORNIA CLASS, and has deprived them of valuable rights and benefits

2 guaranteed by law, all to their detriment and to the benefit of DEFENDANT so as to allow

3 DEFENDANT to unfairly compete. Declaratory and equitable relief is necessary to prevent and

4 remedy this unfair competition.

5 55. All the acts described herein as violations of, among other things, the Cal. Lab. Code,

6 California Code of Regulations, and the Industrial Welfare Commission Wage Orders, are unlawful,

7 are in violation of public policy, are immoral, unethical, oppressive, and unscrupulous, and are likely

8 to deceive employees, as herein alleged, and thereby constitute deceptive, unfair and unlawful business

9 practices in violation of Cal. Bus. and Prof. Code§ 17200 et seq. In addition, DEFENDANT failed to

10 provide all of the legally required off-duty meal periods to Appraiser Employees as required by the

11 applicable Wage Order and Labor Code §512. On average, Appraiser Employees were not provided

12 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 entitled

14 to, and do, seek a declaration that the above described business practices are deceptive unfair and/or

15 unlawful.

16 57. The practices herein alleged presently continue to occur unabated. As a result of the

17 unfair and unlawful business practices described above, PLAINTIFF, and the other members of the

18 CALIFORNIA CLASS, have suffered legal and economic harm.

19

20 SECOND CAUSE OF ACTION


21 For Failure To Pay Overtime Compensation
22 [Cal. Lab. Code§§ 510, 515.5, 551, 552, 1194 and 1198)
23 (By Anderson and Eskandari and the CALIFORNIA LABOR SUBCLASS)
24 58. Anderson, Eskandari, and the other members of the CALIFORNIA LABOR

25 SUBCLASS, reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1

26 through 57 of this Complaint.

27 59. Cal. Lab. Code § 510 states in relevant part:

28 Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one

CROSS-COMPLAINT
24 Case No. 37-2010-00102292-CU-NP-CTL
I workday and any work in excess of 40 hours in any one workweek and the first eight
hours worked on the seventh day of work in any one workweek shall be compensated
2 at the rate of no less than one and one-halftimes the regular rate of pay for an employee.
Any work in excess of 12 hours in one day shall be compensated at the rate of no less
3 than twice the regular rate of pay for an employee. In addition, any work in excess of
eight hours on any seventh day of a workweek shall be compensated at the rate of no
4 less than twice the regular rate of pay of an employee.

5 60. Cal. Lab. Code § 551 states that, "Every person employed in any occupation of labor

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 employees to

8 work more than six days in seven."

9 62. Cal. Lab. Code§ 515(d) provides: "For the purpose of computing the overtime rate of

I0 compensation required to be paid to a nonexempt full-time salaried employee, the employee's regular

II hourly rate shall be !/40th of the employee's weekly salary.

12 63. Cal. Lab. Code § 1194 states:

13 Notwithstanding any agreement to work for a lesser wage, any employee receiving less
than the legal minimum wage or the legal overtime compensation applicable to the
14 employee is entitled to recover in a civil action the unpaid balance of the full amount of
this minimum wage or overtime compensation, including interest thereon, reasonable
15 attorney's fees, and costs of suit.

16 64. 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 standard

18 conditions oflabor for employees. The employment of any employee for longer hours than those fixed

19 by the order or under conditions of labor prohibited by the order is unlawful."

20 65. In addition, Labor Code Section 558 provides:

21 (a) Any employer or other person acting on behalf of an employer


who violates, or causes to be violated, a section of this chapter or any provision
22 regulating hours and days of work in any order of the Industrial Welfare Commission
shall be subject to a civil penalty as follows:
23 (1) For any initial violation, fifty dollars ($50) for each underpaid employee for
each pay period for which the employee was underpaid in addition to an amount
24 sufficient to recover underpaid wages.
(2) For each subsequent violation, one hundred dollars ($100) for each
25 underpaid employee for each pay period for which the employee was underpaid
in addition to an amount sufficient to recover underpaid wages.
26 (3) Wages recovered pursuant to this section shall be paid to the affected
employee.
27 (b) If upon inspection or investigation the Labor Commissioner determines that a person
had paid or caused to be paid a wage for overtime work in violation of any provision of
28 this chapter, or any provision regulating hours and days of work in any order of the

CROSS-COMPLAINT
25 Case No. 37-2010-00102292-CU-NP-CTL
1 Industrial Welfare Commission, the Labor Commissioner may issue a citation. The
procedures for issuing, contesting, and enforcing judgments for citations or civil
2 penalties issued by the Labor Commissioner for a violation of this chapter shall be the
same as those set out in Section 1197.1.
3 (c) The civil penalties provided for in this section are in addition to any other civil or
criminal penalty provided by law.
4
66. DEFENDANT has intentionally and uniformly designated certain employees as
5
"exempt" employees, by their job title and without regard to DEFENDANT'S realistic expectations and
6
actual overall requirements of the job, including Anderson, Eskandari and the other members of the
7
CALIFORNIA LABOR SUBCLASS who worked on the production side of the DEFENDANT'S
8
business. This was done in an illegal attempt to avoid payment of overtime wages and other benefits
9
in violation of the Cal. Lab. Code and Industrial Welfare Commission requirements.
10
67. For an employee to be exempt as a bona fide "executive," all the following criteria must
11
be met and DEFENDANT has the burden of proving that:
12
(a) The employee's primary duty must be management of the enterprise, or of a customarily
13
recognized department or subdivision; and,
14
(b) The employee must customarily and regularly direct the work of at least two (2) or more
15
other employees; and,
16
(c) The employee must have the authority to hire and fire, or to command particularly
17
serious attention to his or his recommendations on such actions affecting other
18
employees; and,
19
(d) The employee must customarily and regularly exercise discretion and independent
20
judgment; and,
21
(e) The employee must be primarily engaged in duties which meet the test of exemption.
22
No member of the CALIFORNIA LABOR SUBCLASS was or is an executive because they all fail to
23
meet the requirements of being an "executive" within the meaning of the applicable Wage Order.
24
68. For an employee to be exempt as a bona fide "administrator," all of the following
25
criteria must be met and DEFENDANT has the burden of proving that:
26
(a) The employee must perform office or non-manual work directly related to management
27
policies or general business operation of the employer; and,
28

CROSS-COMPLAINT
26 Case No. 37-2010-00102292-CU-NP-CTL
I (b) The employee must customarily and regularly exercise discretion and independent

2 judgment; and,

3 (c) The employee must regularly and directly assist a proprietor or an exempt administrator;

4 .or,

5 (d) The employee must perform, under only general supervision, work requiring special

6 training, experience, or knowledge, or,

7 (e) The employee must execute special assigmnents and tasks under only general

8 supervision; and,

9 (f) The employee must be primarily engaged in duties which meet the test of exemption.

10 No member ofthe CALIFORNIA LABOR SUBCLASS was or is an administrator because they all fail

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), and

13 Labor Code § 515 also set forth the requirements which must be complied with to place an employee

14 in the "professional" exempt category. For an employee to be "exempt" as a bona fide "professional",

15 all the following criteria must be met and DEFENDANT has the burden of proving that:

16 (a) The employee is primarily engaged in an occupation commonly recognized as a learned

17 or artistic profession. For the purposes of this subsection, "learned or artistic

18 profession" means an employee who is primarily engaged in the performance of:

19 I) Work requiring knowledge of an advanced type in a field or science or

20 learning customarily acquired by a prolonged course of specialized intellectual


21 instruction and study, as distinguished from a general academic education and
22 from an apprenticeship, and from training in the performance of routine mental,
23 manual, or physical processes, or work that is an essential part or necessarily
24 incident to any of the above work; or,

25 2) Work that is original and creative in character in a recognized field of artistic


26 endeavor, and the result of which depends primarily on the invention,
27 imagination or talent of the employee or work that is an essential part of or
28 incident to any of the above work; and,

CROSS-COMPLAINT
27 Case No. 37-2010-00102292-CU-NP-CTL
I 3) Whose work is predominately intellectual and varied in character (as opposed

2 to routine mental, manual, mechanical, or physical work) and is of such

3 character cannot be standardized in relation to a given period of time.

4 (b) The employee must customarily and regularly exercise discretion and independent

5 judgment; and.

6 (c) The employee earns a monthly salary equivalent to no less than two (2) times the state

7 minimum wage for full-time employment.

8 No member of the CALIFORNIA LABOR SUBCLASS was or is a professional because they all fail

9 to meet the requirements of being a "professional" within the meaning of the applicable Wage Order.

10 70. Anderson, Eskandari, and other members of the CALIFORNIA LABOR SUBCGASS,

11 do not fit the definition of an exempt executive, administrative, or professional employee because:

12 (a) They did not work as executives or administrators;

13 (b) The professional exemption does not apply to PLAINTIFFS, nor to the other members

14 of the CALIFORNIA LABOR SUBCLASS, because they did not meet all the applicable

15 requirements to work under the professional exemption of for the reasons set forth above

16 in this Complaint; and,

17 (c) The compensation paid to Appraiser Employees does not meet the definition of a salary

18 under California law and 29 CFR § 541.602.

19 71. For an employee to be classified as exempt as an outside salesman, the employee must

20 primarily perform sales work outside of the employer's offices. None of the Appraiser Employees meet

21 the definition of an outside salesman because (i) they do not primarily perform sales work, and (ii) they

22 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 employee

24 must meet certain compensation requirements. None of the Appraiser Employees meet the definition

25 of an exempt commissioned employee because (i) they are not compensated through commissions ba:sed

26 upon the price of the product sold, (ii) they do not primarily perform sales work, and (iii) commission

27 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

CROSS-COMPLAINT
28 Case No. 37-2010-00102292-CU-NP-CTL
LABOR SUBCLASS, worked more than eight (8) homs in a workday, forty (40) hours in a work week,

2 and/or worked on the seventh (7th) day of a workweek.


3 74. At all relevant times, DEFENDANT failed to pay PLAINTIFF, and other members of
4 the CALIFORNIA LABOR SUBCLASS, overtime compensation for the hams they have worked in
5 excess of the maximum hours permissible by law as required by Cal. Lab. Code§§ 510 and 1198, even

6 though PLAINTIFF, and the other members of the CALIFORNIA LABOR SUBCLASS, were regularly
7 required to work, and did in fact work, overtime hours.
8 75. By virtue of DEFENDANT'S unlawful failure to pay additional compensation to the
9 PLAINTIFF, and the other members of the CALIFORNIA LABOR SUBCLASS, for their overtime
10 hours, the PLAINTIFF, and the other members of the CALIFORNIA LABOR SUBCLASS, have
11 suffered, and will continue to suffer, an economic injury in amounts which are presently unknown to
12 them and which will be ascertained according to proof at trial.

13 76. DEFENDANT knew or should have known that PLAINTIFF, and the other members

14 of the CALIFORNIA LABOR SUBCLASS, were misclassified as exempt and DEFENDANT


15 systematically elected, either through intentional malfeasance or gross nonfeasance, not to pay them for
16 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 LABOR

18 SUBCLASS, request recovery of overtime compensation according to proof, interest, costs, as well as
19 the assessment of any statutory penalties against DEFENDANT, in a sum as provided by the Cal. Lab.
20 Code and/or other statutes. To the extent overtime compensation is determined to be owed to
21 Anderson, Eskandari and the other members of the CALIFORNIA LABOR SUBCLASS who have

22 terminated their employment, these employees would also be entitled to waiting time penalties under
23 Labor Code § 203, which penalties are sought herein. Further, Anderson, Eskandari and the other
24 members of the CALIFORNIA LABOR SUBCLASS, are entitled to seek and recover statutory costs
25 in accordance with California law.

26 78. In performing the acts and practices herein alleged in violation of labor laws and
27 refusing to provide the requisite overtime compensation, the DEFENDANT acted and continue to act
28 intentionally, oppressively, and maliciously towards Anderson· and Eskandari, and toward the other

CROSS-COMPLAINT
29 Case No. 37-2010-00102292-CU-NP-CTL
1 members of the CALIFORNIA LABOR SUBCLASS, with a conscious and utter disregard of their legal

2 rights, or the consequences to them, and with the despicable intent of depriving them of their property

3 and legal rights and otherwise causing them injury in order to increase corporate profits at the expense

4 of Anderson, Eskandari and the members of the CALIFORNIA CLASS.

5
6 THIRD CAUSE OF ACTION

7 For Failure to Provide Accurate Itemized Statements


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

10 79. Anderson, Eskandari, and the other members of the CALIFORNIA LABOR

11 SUBCLASS, reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1

12 through 78 ofthis Complaint.

13 80. Cal. Labor Code § 226 provides that an employer must furnish employees with an

14 "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 solely
16 based on a salary and who is exempt from payment of overtime under subdivision (a) of Section
515 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 paid
on a piece-rate basis,
18 (4) all deductions, provided that all deductions made on written orders of the employee may be
aggregated 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 January I,
2008, only the last four digits ofhis or her social security number or an employee identification
21 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, and
22 (9) all applicable hourly rates in effect during the pay period and the corresponding number of
hours worked at each hourly rate by the employee.
23

24 81. At all times relevant herein, DEFENDANT violated Labor Code § 226, in that

25 DEFENDANT failed to provide an accurate wage statement in writing that properly and accurately

26 itemized the number of hours worked by Anderson, Eskandari and the other members of the

27 CALIFORNIA LABOR SUBCLASS at the effective regular rates of pay and the effective overtime

28 rates of pay.

CROSS-COMPLAINT
30 Case No. 37-2010-00102292-CU-NP-CTL
1 82. DEFENDANT knowingly and intentionally failed to comply with Labor Code § 226,

2 causing damages to Anderson, Eskandari and the other members of the CALIFORNIA LABOR

3 SUBCLASS. These damages include, but are not limited to, costs expended calculating the true hours

4 worked and the amount of employment taxes which were not properly paid to state and federal tax

5 authorities. These damages are difficult to estimate. Therefore, Anderson, Eskandari and the other

6 members of the CALIFORNIA LABOR SUBCLASS may elect to recover liquidated damages of

7 $50.00 for the initial pay period in which the violation occurred, and $100.00 for each violation in

8 subsequent pay period pursuant to Labor Code § 226, in an amount according to proof at the time of

9 trial (but in no event more than $4,000.00 for each respective member of the CALIFORNIA LABOR

10 SUBCLASS herein).

11

12 FOURTH CAUSE OF ACTION

13 For Failure to Provide Meal and Rest Periods

14 [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 LABOR

17 SUBCLASS, reallege and incorporate by reference, as though fully set forth herein, paragraphs 1

18 through 82 of this Complaint.

19 84. Cal. Lab. Code § 512 provide, in relevant part:

20 An employer may not employ an employee for a work period of more than five hours
per day without providing the employee with a meal period of not less than 30 minutes,
21 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 of both the employer and employee.
22 An employer may not employ an employee for a work period of more than 10 hours per
day without providing the employee with a second meal period of not less than 30
23 minutes, except that if the total hours worked is no more than 12 hours, the second meal
period may be waived by mutual consent ofthe employer and the employee only if the
24 first meal period was not waived.

25 85. Section 11 ofthe Order4-2001 of the Industrial Wage Commission provides, in relevant

26 part:
27 Meal Periods:
(A) No employer shall employ any person for a work period of more than five (5)
28 hours without a meal period of not less than 30 minutes, except that when a

CROSS-COMPLAINT
31 Case No. 37-2010-00102292-CU-NP-CTL
1 work period of not more than six (6) hours will complete the day's work the meal
period may be waived by mutual consent of the employer and the employee.
2 Unless the employee is relieved of all duty during a 30 minute meal period, the
meal period shall be considered an "on duty" meal period and counted as time
3 worked. An "on duty" meal period shall be permitted only when the nature of the
work prevents an employee from being relieved of all duty and when by written
4 agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
5 agreement at any time.
(B) If an employer fails to provide an employee a meal period in accordance with the
6 applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
7 the meal period is not provided.

8 86. Section 12 ofthe Order 4-2001 of the Industrial Wage Commission provides, in relevant

9 part:

10 Rest Periods:

11 (A) · Every employer shall authorize and permit employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
12 rest period time shall be based on the total hours worked daily at the rate of ten
( 10) minutes net rest time per four( 4) hours or major fraction thereof. However,
13 a rest period need not be authorized for employees whose total daily work time
is less than three and one-half (3-1/2) hours. Authorized rest period time ~hall
14 be counted as hours worked for which there shall be no deduction from wages.
(B) If an employer fails to provide an employee a rest period in accordance with the
15 applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday
16 that the rest period is not provided.

17 87. Cal. Lab. Code § 226.7 provides:

18 (a) No employer shall require any employee to work during any meal or rest period
mandated by an applicable order of the Industrial Welfare Commission.
19
(b) If an employer fails to provide an employee a meal period or rest period in
20 accordance with an applicable order of the Industrial Welfare Commission, the employer
shall pay the employee one additional hour of pay at the employee's regular rate of
21 compensation for each work day that the meal or rest period is not provided.

22
88. DEFENDANT intentionally and improperly failed to provide all rest and/or meal
23
periods without any work or duties to Anderson, Eskandari and the other members of the
24
CALIFORNIA LABOR SUBCLASS as required by law, and by failing to do so DEFENDANT violated
25
the provisions of Labor Code 226.7.
26
89. Therefore, Anderson and Eskandari demand on behalf of themselves and the members
27
ofthe CALIFORNIA LABOR SUBCLASS, one (I) hour of pay for each workday in which a rest period
28

CROSS-COMPLAINT
32 Case No. 37-2010-00102292-CU-NP-CTL
1 was not provided as required by law one (I) hour of pay for each workday in which a meal period was
2 not provided as required by law.

4 FIFTH CAUSE OF ACTION


5 For Failure to Provide Business Expense Rimbursement
6 [Cal. Lab. Code§ 2802]
7 (By Anderson, Eskandari and the CALIFORNIA LABOR SUBCLASS)

8 90. Anderson, Eskandari and the other members of the CALIFORNIA LABOR

9 SUBCLASS, reallege and incorporate by reference, as though fully set forth herein, paragraphs 1
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 or
losses incurred by the employee in direct consequence of the discharge of his or her
13 duties, or of his or her obedience to the directions of the employer, even though
unlawful, unless the employee, at the time of obeying the directions, believed them to
14 be nnlawful.

15 92. At all relevant times herein, DEFENDANT violated Cal. Lab. Code § 2802, by

16 failing to indemnify and reimburse Anderson, Eskandari and the other Appraiser Employees for all

17 expenditures or losses incurred in direct consequence of the discharge of their job duties. In particular,

18 DEFENDANT failed to provide the Appraiser Employees with reimbursement for all of the

19 expenses incurred by them in the performance of their job duties, including but not limited to

20 expenses incurred by the use of their cell phone, home office expenses, tool expenses, camera

21 expenses, and computer expenses. Although these expenses were necessary expenditures uniformly

22 incurred by the Appraiser Employees, DEFENDANT failed to indemnify and reimburse for these
23 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 the
25 expectation of DEFENDANT and DEFENDANT's unwritten policy to contribute to the expenses of

26 the DEFENDANT's business, which expenses must be refunded by DEFENDANT to each employee.
27 94. Cal. Lab. Code § 2802(b) and (c) provide for interest at the statutory post judgment
28 rate of 10% simple interest per annum from the date of the expenditure plus attorneys' fees to collect

CROSS-COMPLAINT
33 Case No. 37-2010-00102292-CU-NP-CTL
reimbursement.

2 95. Anderson and Eskandari, therefore, demand reimbursement for all expenditures or

3 losses incurred by them and the other Appraiser Employees in direct consequence of the discharge of

4 their duties, or their obedience to the directions of the DEFENDANT with interest at the statutory rate

5 and costs under Cal. Labor Code § 2802.

7 PRAYER

8 WHEREFOR, Anderson and Eskandariprays for judgment against each Defendant, jointly and
9 severally, as follows:

10 I. On behalf of the CALIFORNIA CLASS:

II A) That the Court certify the First Cause of Action asserted by the CALIFORNIA CLASS
12 as a class action pursuant to Cal. Code of Civil Procedure§ 382;

13 B) An order requiring DEFENDANT to correctly calculate and pay all wages and all sums
14 unlawfuly withheld from compensation due to Anderson, Eskandari and the other
15 members of the CALIFORNIA CLASS; and,

16 D) Restitutionary disgorgement of DEFENDANT'S ill-gotten gains into a fluid fund for


17 restitution of the sums incidental to DEFENDANT'S violations due to Anderson,
18 Eskandari and to the other members of the CALIFORNIA CLASS according to proof.
19 2. On behalf of the CALIFORNIA LABOR SUBCLASS:

20 A) That the Court certify the Second, Third and Fourth Causes of Action asserted by the
21 CALIFORNIA LABOR SUBCLASS as a class action pursuant to Cal. Code of Civil
22 Procedure § 382;

23 B) Compensatory dama~es, according to proof at trial, including compensatory damages


24 for overtime compensation due PLAINTIFF and the other members of the
25 CALIFORNIA LABOR SUBCLASS, plus interest thereon at the statutory rate;
26 C) The wages of all terminated employees in the CALIFORNIA LABOR SUBCLASS as
27 a penalty from the due date thereof at the same rate until paid or until an action therefor
28 is commenced, in accordance with Cal. Lab. Code§ 203;

CROSS-COMPLAINT
34 Case No. 37-2010-00102292-CU-NP-CTL
I D) Reimbursement of all business expenses incuned by the Appraiser Employees in

2 accordance with Cal. Labor Code § 2802; and,

3 F) The greater of all actual damages or fifty dollars ($50) for the initial pay period in which

4 a violation occurs and one hundred dollars ($1 00) per each member of the

5 CALIFORNIA LABOR SUBCLASS for each violation in a subsequent pay period, not

6 exceeding an aggregate penalty of four thousand dollars ($4,000), and an award of costs

7 for violation of Cal. Lab. Code § 226.

8 3. On all claims:

9 A) An award of interest, including prejudgment interest at the legal rate.

10 B) An award of penalties, statutory damages, and cost of suit, as. allowable under the law.

II Neither this prayer nor any other allegation or prayer in this Complaint is to be construed

12 as a request, under any circumstance, that would result in a request for attorneys' fees

13 or costs available under Cal. Lab. Code§ 218.5;

14 C) Such other and further relief as the Court deems just and equitable.

15

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


17

18
\....~
By:··~·-···· . ·····
--
::.::: ~---~
/-:::.:~:::~:::::~:::.-:::.~-
')
. ~~...--::.::::~::::·-··
Norman B. B Iuiil:tlnthal, Esq. --··--
19 KyleR. Nordrehaug, Esq.
Attomeys for Cross-Complainants
20

21

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28

CROSS-COMPLAINT
35 Case No. 37-2010-00102292-CU-NP-CTL
1 DEMAND FOR JURY TRIAJL

2 Anderson andEskandari demands a jury trial on issues triable to a jury.


3

4 Dated: December 17,2010 BlLUME.NTHAL, NORDREHAUG & BHOWMIK


5
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CROSS-COMPLAINT
36 Case No. 37-2010-00102292-CU-NP-CTL

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