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ROBERT BONSALL, SBN 119261 PETER M. MCENTEE, SBN 252075 Syperior Coort Of CaiyforniiSj BEESON, TAYER & BODINE, APC 520 Capitol Mall, Suite 300 Sacramento, CA 95814-4714 02/22/2012 Telephone: (916)325-2100 Facsimile: (916) 325-2120 Email: rbonsall(^beesontayer.com, pmcentee(^beesontayer.coii0)i , Depu Attomeys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO COLLEEN MITCHELL and TANNITH MITCHELL, Plaintiffs,
V. Department Assignments Case Management 44 Law ahd Motion 53 M.-^- >s Compromise 45

Case No.

COMPLAINT FOR DAMAGES; STATUTORY PENALTIES; CIVIL PENALTIES; AND DEMAND FOR JURY TRIAL

MARCIA FRITZ dba MARCIA FRITZ & COMPANY UNLIMITED CIVIL ACTION Defendants.

Plaintiffs COLLEEN MITCHELL and TANNITH MITCHELL complain and allege as follows: INTRODUCTION 1. This complaint is brought by Plaintiffs COLLEEN MITCHELL and TANNITH

MITCHELL, former employees of Defendant MARCIA FRITZ dba MARCIA FRITZ & COMPANY ("Defendant"). For the past ten (10) years, Defendant employed Plaintiff COLLEEN MITCHELL as Office Manager of Defendant's Certified Public Accounting ("CPA") firm located at 5530 Birdcage Ave., Ste. 105, Citrus Heights, Califomia, 95610. For the past ten (10) years Defendant has intermittently employed Plaintiff TANNITH MITCHELL in different positions. Since August 2007 Defendants employed Plaintiff TANNITH MITCHELL continuously, until August 17, 2011, in various titles including Vietnam Helicopter Pilots Association ("VHPA") Manager and Administrative Assistant. Defendant failed to pay Plaintiffs' eamed overtime wages, failed to provide requisite meal and rest periods, failed to pay Plaintiffs all wages due when their employment ended, and inappropriately deducted money from Plaintiffs' wages. 1
Complaint 238l54.doc

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Complaint

Plaintiffs herein seek to recover compensation for the unpaid wages, restitution, statutory penalties, and attomeys' fees and costs of suit sought in this Complaint. VENUE/JURISDICTION 2. 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' liability took place within the County of Sacramento. This is an Unlimited Civil Action as the alleged damages exceed $25,000.00. PARTIES 3. Plaintiffs COLLEEN MITCHELL and TANNITH MITCHELL (hereafter referred to

as "Plaintiffs") are, and at all times relevant herein were, residents of Califomia. At all times material herein, Plaintiffs were employed by Defendant MARCIA FRITZ dba MARCIA FRITZ & COMPANY (hereafter referred to as "Defendanf), in Defendant's CPA firm. 4. Defendant is an individual doing business as a CPA firm. Defendant is an Employer

within the meaning of Section 18 of the Califomia Labor Code. FIRST CAUSE OF ACTION FAILURE TO PAY OVERTIME COMPENSATION (Violation of IWC Wage Order No. 4-2001 and Cal. Labor Code § 510) 5. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs

1 through 4, inclusive, as though ftilly set forth herein. 6. The Califomia Industrial Welfare Commission ("IWC") is authorized by §§ 517 and

1173 of the Labor Code to promulgate orders regulating wages, hours, and conditions of employment for 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 Similar Occupations during periods of time relevant to this action. Defendant is an "Employer" as defined by § 2(H) of IWC Order No. 4-2001. This IWC Wage Order and Labor Code § 510 specifically mandates that employees receive overtime compensation at one and one half times the employee's regular rate of pay for hours worked in excess of eight (8) hours per day or in excess of forty (40)

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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 to

work in excess of eight (8) hours per day and forty (40) hours per week. Defendant failed to pay Plaintiffs appropriate overtime compensation for such hours worked, in violation ofthe applicable IWC Wage Order and Labor Code § 510. 9. As a direct result of Defendants' conduct alleged herein, Plaintiffs suffered, and are

entitled to recover, pursuant to Labor Code § 1194, monetary damages in an amount equal to the sum of 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 this action pursuant to Labor Code §1194. SECOND CAUSE OF ACTION FAILURE TO PROVIDE REST PERIODS (Violation of IWC Wage Order No. 4-2001 and Cal. Labor Code § 226.7) 11. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs

1 through 10 inclusive, as though fially set forth herein. 12 At all times material hereto. Labor Code § 226.7 has prohibited employers from

suffering 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 rest period as specified in the applicable IWC Wage Order to pay the employee one (1) additional hour of pay at the employee's regular rate of pay for each work day that the rest period is not provided. 13. The IWC promulgated Wage Order No. 4-2001 regulating wages, hours and

conditions of employment in Professional, Technical, Clerical, Mechanical and Similar Occupations during the periods of time relevant to this action. Section 12 of Wage Order No. 4-2001 requires employers to provide employees with at least a ten (10) minute rest period for every four (4) hours of work or major fraction thereof 14. Notwithstanding, Defendant has systematically failed to provide Plaintiffs with the

rest periods required by IWC Wage Order No. 4-2001 and Labor Code § 226.7.
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15.

As a direct result of Defendants' conduct as alleged herein, Plaintiffs have suffered

monetary damages and are entitled to recover one hour pay at straight time rate for each day Defendant failed to provide the rest periods required by law. 16. Plaintiffs have retained the services of attomeys herein to maintain and prosecute this

action, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in the prosecution of this action. THIRD CAUSE OF ACTION FAILURE TO PROVIDE MEAL PERIODS (Violation of IWC Wage Order No. 4-2001 and Cal. Labor Code § 226.7) 17. Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs

1 through 16 inclusive, as though fully set forth herein. 18. At all times material hereto, Labor Code § 226.7 has prohibited employers from

suffering or permitting any employee to work without meal periods mandated by the IWC Orders. Section 226.7 also requires an employer who suffers or permits an employee to work without a meal period as specified in the applicable IWC Wage Order to pay the employee one (1) additional hour of pay at the employee's regular rate of pay for each work day that the meal period is not provided. 19. The IWC promulgated Wage Order No. 4-2001 regulating wages, hours and

conditions of employment in Professional, Technical, Clerical, Mechanical and Similar Occupations during the periods of time relevant to this action. Section 11 of Wage Order No. 4-2001 requires employers to provide employees with at least a thirty (30) minute meal period for every work day in excess of five (5) hours. 20. Notwithstanding, Defendants have systematically failed and refiased to provide

Plaintiffs with the meal periods required by IWC Wage Order No. 4-2001 and Labor Code § 226.7. 21. As a direct result of Defendants' conduct as alleged herein. Plaintiffs have suffered

monetary damages and are entitled to recover one hour pay at straight time rate for each day Defendants failed to provide the meal periods required by law. 22. Plaintiffs have retained the services of attomeys herein to maintain and prosecute this

action, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in the prosecution of this action.
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FOURTH CAUSE OF ACTION UNFAIR COMPETITION AND UNFAIR BUSINESS PRACTICES (Violation of Califomia Business and Professions Code § 17200, et seq.) Plaintiffs re-allege and incorporate by reference the allegations set forth in paragraphs

1 through 22, inclusive, as though fiilly set forth herein. 24. This claim is brought by Plaintiffs on behalf of themselves and the general public,

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 relief 25. Business & Professions Code § 17200 et seq. provides that unfair competition shall

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mean and include any "unlawful business act or practice." The conduct of Defendant, as alleged herein, has and continues to be an unlawful business practice or act deleterious to Plaintiffs as well as to the general public. Specifically, since the commencement of their employment, Plaintiffs were suffered to work, without appropriate compensation, in excess of eight (8) hours per work day and forty (40) hours in a work week, as well as being denied the requisite rest and meal periods as mandated by the applicable IWC Wage Orders and the Labor Code and denied appropriate reimbursement for expenses. 26. Through this conduct, Defendants, and each of them, have engaged in unlawfiil and

unfair business practices in violation of Business & Professions Code § 17200 et seq., depriving Plaintiffs of rights, benefits and privileges guaranteed under the law. 27. As a direct result of Defendants' conduct as alleged herein. Plaintiffs have been

unjustly deprived of their eamed and unpaid regular and overtime wages as well as rest and meal periods required by law. As a direct result of Defendants' conduct as alleged herein, Defendants have been unjustly enriched in an amount equal to Plaintiffs' eamed and unpaid regular and overtime wages. 28. Business & Professions Code § 17203 provides that the Court may restore to an

aggrieved party any money or property acquired by means of unlawful and/or unfair business practices. Plaintiffs are entitled to restitution pursuant to this Section for all wages unlawfully withheld and unpaid as alleged herein, according to proof

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Complaint

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29.

Plaintiffs' success in this action will enforce important rights affecting the public

interest and, in that regard, Plaintiffs sue on behalf of the public as well as themselves. Plaintiffs seek and are entitled to unpaid wages, penalties, an injunction and any other appropriate equitable relief

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due 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 to

prevent 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 this

action, and Plaintiffs are entitled to recovery of attomeys' fees incurred on Plaintiffs' behalf in the prosecution of this action. FIFTH CAUSE OF ACTION FAILURE TO PAY ALL EARNED WAGES AT TIME 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, if an employee has not given notice prior to resignation the employer must 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 unused vacation pay, as required by Labor Code § 202. 36. As a direct result of Defendants' conduct as alleged herein, Plaintiffs have suffered

monetary damages in an amount equal to the sum of their eamed and unpaid regular and overtime wages, plus interest thereon. 37. Plaintiffs are further entitled to an award of an additional sum as a penalty, pursuant to

the provisions of Labor Code § 203. Plaintiffs are entitled to recover from Defendants and each of

Complaint

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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 this

action, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in the prosecution of this action. SIXTH CAUSE OF ACTION UNAUTHORIZED DEDUCTIONS (Violation of Cal. 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 the 401(k) contributions. 42. As a direct result of Defendant's conduct as alleged herein. Plaintiffs have suffered

monetary damages and are entitled to recover the wages improperly deducted. 43. Plaintiffs have retained the services of attorneys herein to maintain and prosecute this

action, and Plaintiffs are entitled to recovery of attorneys' fees incurred on Plaintiffs' behalf in the prosecution of this action. SEVENTH CAUSE OF ACTION CIVIL PENALTY FOR VIOLATIONS OF OVERTIME (Cal. Labor Code§558) 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 Code §558 has provided that any employer or

person who violates provision regulating hours and days of work or any provisions of any order of the Industrial Wage Commission shall be subject to a civil penalty of fifty dollars ($50) for an initial 7
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violation for each employee under paid and one hundred dollars ($100) for each subsequent violation for each employee underpaid. 46. Defendant violated the wage orders by not paying Plaintiffs an overtime wage for

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work Plaintiffs performed over eight hours in a day and by failing to provide meal and rest periods and is therefore subject to the civil penalties provided in Labor Code§558. 47. Plaintiffs have retained the services of attomey herein to maintain and prosecute this

action, and Plaintiffs are entitled to recovery of attomeys' fees incurred on Plaintiffs' behalf in the prosecution of this action. PRAYER FOR RELIEF WHEREFORE, 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, in accordance 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 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 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 Code §222 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. 10.
Complaint

For appropriate injunctive relief; and For such other relief as the Court may award. 8
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DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial as provided by Califomia Code of Civil Procedure §631.

Dated: February 22,2012

Respectfiilly Submitted, BEESON, TAYER & BODINE, APC

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Complaint

PETER MCENTEE Attomeys for Plaintiffs

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