Mitchell and Mitchell v. Fritz

8/2/2019 Mitchell and Mitchell v. Fritz

1/9

123456789

10111213141516171819202122232425262728

ROBERT BONSA LL, SBN 119261PETER M . M CENTEE, SBN 252075BEESON, TAYER & BODINE, APC520 Capitol M all , Suite 300Sacramento, CA 95814-4714Telephone: (916)325-2100Facsimile: (916) 325-2120Email: rbonsall( beesontayer.com, pmcentee( beesontayer.coii0)i

Syperior Coort Of Caiyforni0 2 / 2 2 / 2 0 1 2

Attomeys for P laintiffsSUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAM ENTOCase No.

, Depu

COLLEEN M ITCHELL and TANN ITHM ITCHELL,Plaintiffs,

V .M ARCIA FRITZ dba M ARCIA FRITZ &COMPANY

Defendants.

DepartmentAss ignments

Case Management 44Law ahd Motion 53

M.- - >s Com prom ise 45

C O M P L A I N T F O R D A M A G E S ;S T A T U T O R Y P E N A L T I E S ; C I V I LP E N A L T I E S ; AND DEMAND FO R J U R YT R I A L

U N L I M I T E D C I V I L A C T I O N

Plaintiffs COLLEEN M ITCHELL and T AN NITH M ITCHELL complain and allege as follows:INTRODUCTION

1. This complaint is brought by Plaintiffs COLLEEN M ITCH ELL and TAN NIT HM ITCHELL, formeremployees of Defendant M ARCIA FRITZ dba M ARC IA FRITZ &COMPANY ("Defendant"). For the past ten (10) years, Defendant employed Plaintiff COLLEENM ITCHELL as Office Manager of Defendant's Certified Public Accounting ("CPA") firm located at5530 Birdcage Ave., Ste. 105, Citrus Heights, Califomia, 95610. For the past ten (10) yearsDefendant has intermittently employed Plaintiff TANNITH M ITCHELL in different positions. SinceAugust 2007 Defendants employed Plaintiff TANNITH M ITCHELL continuously, until August 17,2011, in various titles including Vietnam Helicopter Pilots Association ("VHPA") Manager andAdministrative Assistant. Defendant failed to pay Plaintiffs' eamed overtime wages, failed toprovide requisite meal and rest periods, failed to pay P laintiffs all wages due when their employmentended, and inappropriately deducted money from Plaintiffs' wages.

1Complaint 238l54.doc


2/9

12345678910111213141516171819202122232425262728

Plaintiffs herein seek to recover compensation for the unpaid wages, restitution, statutorypenalties, and attomeys' fees and costs of suit sought in this Complaint.

VENUE/JURISDICTION2. Pursuant to Code of Civil Procedure 395 and 395.5 venue is proper in this Court as

a substantial portion of the acts and/or omissions complained of giving rise to Defendants' liabilitytook place within the County of Sacramento. This is anUnlimited Civil Action as the allegeddamages exceed $25,000.00.

PARTIES3. Plaintiffs COLLEEN M ITCHELL and TANNITH M ITCHELL (hereafter referred to

as "Plaintiffs") are, and at all times relevant herein were, residents of Califomia. At all timesmaterial herein, Plaintiffs were employed by Defendant MARCIA FRITZ dba MARCIA FRITZ &COMPANY (hereafter referred to as "Defendanf), in Defendant's CPA f i rm.

4. Defendant is an individual doing business as aCPA firm. Defendant is an Employerwithin the meaning of Section 18 of the Califomia Labor Code.

FIRST CAUSE OF ACTIONFAILURE TO PAY OVERTIME COMPENSATION(Violation of IW C Wage Order No. 4-2001 and Cal. Labor Code 510)

5. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs1 through 4, inclusive, as though ftilly set forth herein.

6. The Califomia Industrial Welfare Commission ("IWC") is authorized by 517 and1173 of the Labor Code to promulgate orders regulating wages, hours, and conditions of employmentfor employees throughout Califomia.

7. Pursuant to this authority, the IWC promulgated Order No. 4-2001, regulating wages,hours and working conditions in Professional, Technical, Clerical, Mechanical and SimilarOccupations duringperiods of time relevant to this action. Defendant is an "Employer" as defined by 2(H) of IW C Order No. 4-2001. This IWC Wage Order and Labor Code 510 specificallymandates that employees receive overtime compensation at one and one half times the employee'sregular rate of pay for hours worked in excess of eight (8) hours per day or in excess of forty (40)

Complaint 238i54.doc


3/9

12345678910111213141516171819202122232425262728

hours per week; and double the employee's regular rate of pay for hours worked in excess of twelve(12) hours per day.

8. At all times relevant to this action, Plaintiffs were regularly suffered or permitted towork in excess of eight (8) hours per day and forty (40) hours per week. Defendant failed to payPlaintiffs appropriate overtime compensation for such hours worked, in violation ofthe applicableIWC Wage Order and Labor Code 510.

9. As a direct result of Defendants' conduct alleged herein, Plaintiffs suffered, and areentitled to recover, pursuant to Labor Code 1194, monetary damages in an amount equal to the sumof their unpaid overtime wages, plus interest thereon.

10. Plaintiffs have retained the services of attomeys to maintain and prosecute this action,and thus Plaintiffs are entitled to recover reasonable attorneys' fees incurred in the prosecution of thisaction pursuant to Labor Code 1194.

SECOND CAUSE OF ACTIONFAILURE TO PROVIDE REST PERIODS(Violation of IW C Wage Order No. 4-2001 and Cal. Labor Code 226.7)

11. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs1 through 10 inclusive, as though fially set forth herein.

12 At all times material hereto. Labor Code 226.7 has prohibited employers fromsuffering or permitting any employee to work without rest periods mandated by the IWC Orders.Section 226.7 also requires an employer who suffers or permits an employee to work without a restperiod as specified in the applicable IW C Wage Order to pay the employee one (1) additional hour ofpay at the employee's regular rate of pay for each work day that the rest period is not provided.

13. The IW C promulgated Wage Order No. 4-2001 regulating wages, hours andconditions of employment in Professional, Technical, Clerical, Mechanical and Similar Occupationsduring the periods of time relevant to this action. Section 12 of Wage Order No. 4-2001 requiresemployers to provide employees with at least a ten (10) minuterest period for every four (4) hours ofwork or major fraction thereof

14. Notwithstanding, Defendant has systematically failed to providePlaintiffs with therest periods required by IW C Wage Order No. 4-2001 and Labor Code 226.7.



4/9

1 15. As a direct result of Defendants' conduct as alleged herein, Plaintiffs have suffered2 monetary damages and are entitled to recover one hour pay at straight time rate for each day3 Defendant failed to provide the rest periods required by law.4 16. Plaintiffs have retained the services of attomeys herein to maintain and prosecute this5 action, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in the6 prosecution of this action.78910111213141516171819202122232425262728

THIRD CAUSE OF ACTIONFAILURE TOPROVIDE M E A L PERIODS(Violation of IW C Wage Order No. 4-2001 and Cal. Labor Code 226.7)

17. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs1 through 16 inclusive, as though fully set forth herein.

18. At all times material hereto, Labor Code 226.7 has prohibited employers fromsuffering or permitting any employee to work without meal periods mandated by the IW C Orders.Section 226.7 also requires an employer whosuffers or permits an employee to work without a mealperiod as specified in the applicable IW C Wage Order to pay the employee one (1) additional hour ofpay at the employee's regular rate of pay for each work day that the meal period is not provided.

19. The IW C promulgated Wage Order No. 4-2001 regulating wages, hours andconditions of employment in Professional, Technical, Clerical, Mechanical and Similar Occupationsduring the periods of time relevant to this action. Section 11of Wage Order No. 4-2001 requiresemployers to provide employees with at least a thirty (30) minute meal period for every work day inexcess of five (5) hours.

20. Notwithstanding, Defendants have systematically failed and refiased to providePlaintiffs with the meal periods required by IW C Wage Order No. 4-2001 and Labor Code 226.7.

21 . As a direct result of Defendants' conduct as alleged herein. Plaintiffs have sufferedmonetary damagesand are entitled to recover one hour pay at straight time rate for each dayDefendants failed to provide the meal periods required by law.

22. Plaintiffs have retained the services of attomeys herein to maintain and prosecute thisaction, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in theprosecution of this action.Complaint 238l54.doc


5/9

1 FOURTH CAUSE OF ACTION2 UNFAIR COMPETITION AND UNFAIR BUSINESS PRACTICES3 (Violation ofCalifomia Business and Professions Code 17200, et seq.)4 23. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs5 1 through 22, inclusive, as though fiilly set forth herein.6 24. This claim is brought byPlaintiffs on behalf of themselves and the general public,7 pursuant to Business & Professions Code 17200 et seq. Plaintiffs are "persons" within the meaning

of Business & Professions Code 17204, and have standing to bring this claim for equitable relief25. Business & Professions Code 17200 et seq. provides that unfair competitionshall

mean and include any "unlawful business act or practice." The conduct of Defendant, as allegedherein, has and continues to be an unlawful business practice or act deleterious to Plaintiffs as well asto the general public. Specifically, since the commencement of their employment, Plaintiffs weresuffered to work, without appropriate compensation, in excess of eight (8) hours per work day andforty (40) hours in a work week, as well as being denied the requisite rest and meal periods asmandated by the applicable IW C Wage Orders and the Labor Code and denied appropriatereimbursement for expenses.

26. Through this conduct, Defendants, and each of them, have engaged in unlawfiil andunfair business practices in violation of Business & Professions Code 17200 et seq., deprivingPlaintiffs of rights, benefits and privileges guaranteed under the law.

27. As a direct result of Defendants' conduct as alleged herein. Plaintiffs have beenunjustly deprived of their eamed and unpaid regular and overtimewages as well as rest and mealperiods required by law. As a direct result of Defendants' conduct as alleged herein, Defendantshave been unjustlyenriched in an amount equal to Plaintiffs' eamed and unpaid regular and overtimewages.

28. Business & Professions Code 17203 provides that the Court may restore to anaggrieved party any money or property acquired by means of unlawful and/or unfair businesspractices. Plaintiffs are entitled to restitution pursuant to this Section for all wages unlawfullywithheld and unpaid as alleged herein, according to proof

' 5

8910111213141516171819202122232425262728

Complaint 238l54.doc


6/9

1 29. Plaintiffs' success in this action will enforce important rights affecting the public2

45678910111213141516171819202122232425262728

interest and, in that regard, Plaintiffs sue on behalf of the public as well as themselves. Plaintiffs seekand are entitled to unpaid wages, penalties, an injunctionand any other appropriate equitable reliefdue to Defendants' failure to pay required wages or provide lawfiil rest and meal periods.

30. Pursuant to Business & Professions Code 17203, injunctive relief is necessary toprevent Defendants from continuing to engage in the unfair business practices as alleged herein.

31 . Plaintiffs have retained the services of attomeys herein to maintain and prosecute thisaction, and Plaintiffs are entitled to recovery of attomeys' fees incurred on Plaintiffs' behalf in theprosecution of this action.

FIFTH CAUSE OF ACTIONFAILURE TO PAY ALL EARNED WAGES AT TIM E OF RESIGNATION

(Violation of Cal. Labor Code 202 and 203)32. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs

1 through 31 , inclusive, as though fully set forth herein.33. At all times material hereto. Labor Code 202 and 203 has required employers to

pay employees all eamed and unpaid wages at the time of their severance from employment,including when that severance is due to resignation.

34. Pursuant to 202, i f an employee has not given notice prior to resignation the employermust pay all wages due within seventy-two (72) hours of the employee's last day of employment.

35. Defendants failed to pay wages due Plaintiffs who were severed from employment,specifically their accrued wages for regular and overtime hours worked, and accmed and unusedvacation pay, as required by Labor Code 202.

36. As a direct result of Defendants' conduct as alleged herein, Plaintiffs have sufferedmonetary damages in an amount equal to the sumof their eamed and unpaid regular and overtimewages, plus interest thereon.

37. Plaintiffs are further entitled to an award of an additional sum as a penalty, pursuant tothe provisions of Labor Code 203. Plaintiffs are entitled to recover from Defendants and each of

Complaint 238l54.doc


7/9

123456789

10111213141516171819202122232425262728

them, in addition to their eamed and unpaid wages, a penalty under Labor Code 203 equal to thirty(30) days' wages, plus interest thereon.

38. Plaintiffs have retained the services of attomeys herein to maintain and prosecute thisaction, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in theprosecution of this action.

SIXTH CAUSE OF ACTIONUNAUTHORIZED DEDUCTIONS

(Violation ofCal. Labor Code 222, 223)39. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs

1 through 37, inclusive, as though ftilly set forth herein.40. At all time material hereto, Labor Code^22 and 223 have prohibited employers from

withholding part of wages due or failing to pay the statutory or contractual wage owed.41 . Defendant withheld portions of Plaintiffs' v/ages, purportedly as deductions for 401 (k)

contributions, but for several months did not make the 401(k) contribution and has not made the401(k) contributions.

42. As a direct result of Defendant's conduct as alleged herein. Plaintiffs have sufferedmonetary damagesand are entitled to recover the wages improperly deducted.

43. Plaintiffs have retained the services of attorneys herein to maintain and prosecute thisaction, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in theprosecution of this action.

SEVENTH CAUSE OF ACTIONCIVIL PENALTY FOR VIOLATIONS OF OVERTIME

(Cal. LaborCode558)44. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs

1 through 42, inclusive, and thought gully set forth herein.45. At all times material hereto. Labor Code558 has provided that any employer or

person who violates provision regulating hours and days ofwork or any provisions of any order ofthe Industrial Wage Commission shall be subject to a civil penalty of fifty dollars ($50) for an initial



8/9

1 violation for each employee under paid and one hundred dollars ($100) for each subsequent violation23

45678910111213141516171819202122

232425262728

for each employee underpaid.46. Defendant violated the wage orders by not paying Plaintiffs an overtime wage for

work Plaintiffs performed over eight hours in a day and by failing to provide meal and rest periodsand is therefore subject to the civil penalties provided in Labor Code558.

47. Plaintiffs have retained the services of attomey herein to maintain and prosecute thisaction, and Plaintiffs are entitled to recovery of attomeys' fees incurred on Plaintiffs' behalf in theprosecution of this action.

PRAYER FOR RELIEFWHEREFORE, Plaintiffs pray for judgment as follows:1. Pursuant to IWC Wage Order No. 4-2001, for monetary damages equal to the sum of

their eamed, unpaid wages, inaccordance with proof;2. Pursuant to Labor Code 226.7, for an additional sum according to proof equal to one

hour of pay at straight time rate for each day Defendants failed to provide rest periods to Plaintiffs;3. Pursuant to Labor Code226.7, for an additional sum according to proof equal to one

hour of pay at straight time rate for each day Defendants failed to provide meal periods to Plaintiffs;4. Pursuant to Business and Professions Code 17200, et seq., for restitution equal to the

sum of eamed, unpaid wages to each Plaintiff, according to proof;5. Pursuant to Labor Code 203, for an additional sum according to proof equal to thirty

(30) days' wages, as a penalty for unpaid wages to severed employees;6. Pursuant to Labor Code222 and 223, for an additional sum according to proof equal

to the wages improperly deducted;7. For interest on these sums from the date said wages or penalties were due to the date

of judgment herein;8. For an award of attorneys' fees and costs, in an amount the Court determines to be

reasonable, as authorized by the Labor Code and other provisions of law;9. For appropriate injunctive relief; and10. For such other relief as the Court may award.

8Complaint 238154.doc


9/9

1 DEMAND FOR JURY TRIA L2 Plaintiffs herebydemand a jury trial as provided by CalifomiaCode of Civil Procedure 631.

8910111213141516171819202122

232425262728

Dated: February 22,2012 RespectfiillySubmitted,BEESON, TAYER & BODINE, APC

7 PETER MCENTEEAttomeys for Plaintiffs

Complaint 238154.doc

Documents

Mitchell and Mitchell v. Fritz