Free Motion for Protective Order - District Court of California - California

Case 3:07-cv-02178-W-AJB

Document 22-7

Filed 04/18/2008

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1 SEYF AR TH SHAW LLP Samuel T. McAdam (SBN 186084)
2 Brandon R. McKelvey (SBN 217002)

Anthony J. Musante (SBN 252097)
3 400 Capitol Mall, Suite 2350

Sacramento, California 95814-4428
4 Telephone: (916) 448-0159

Facsimile: (916) 558-4839
5

Attorneys for Defendants 6 SPHERION ATLANTIC ENTERPRISES LLC
7
8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

9

10
i 1

PHILIP J. MARTINET, Individually, On Behalf of All Others Similarly Situated, and on Behalf of the General Public,
Plaintiff,
v.

12
13

14
15

SPHERION ATLANTIC ENTERPRISES LLC, a Delaware Limited Liability
Company; and DOES 1 through 50,

) ) ) ) ) ) ) ) )

Case No. 07 CV 2178 W (AJB)

DECLARATION OF BRANDON R. McKEL VEY IN SUPPORT OF DEFENDANT'S MOTION FOR A PROTECTIVE ORDER UNDER FEDERAL RULE OF CIVIL PROCEDURE 26(c)

)
) ) ) ) )

16
17

inclusive,

May 16,2008 10:00 a.m. Courtroom: A - First Floor Hon. Anthony J. Battaglia Judge:
Date: Time:

Defendant.

18 I, Brandon R. McKelvey, declare:
19
1.

I am an attorney at law licensed to practice in the state of California with the firm

20 Seyfarth Shaw LLP, attorneys of record for defendant Spherion Atlantic Enterprises, LLC

21 ("Spherion"). I state the following facts based on my personal knowledge. If called upon, I
22 could and would testify competently to the matters set forth herein.
23
2.
On September 25,2007, plaintiff

filed a class-action complaint seeking to

24 represent all "current and former California-based, hourly non-exempt employees" employed by
25 Spherion from September 25, 2003 to the present. The complaint alleged state-wide violations

26 of California's wage-and-hour laws related primarily to the payment of overtime, business
27 expenses, and the provision for meals and rest periods. Attached hereto as Exhibit A is a true

28 and correct copy of the complaint.
DECLARATION OF BRANDON R. MCKELVEY IN SUPPORT OF DEFENDANT'S MOTION FOR A PROTECTIVE ORDER
SCI 17092684.1

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1

3.

On December 19,2007, plaintiff

fied a First Amended Complaint ("FAC")

2 making the same allegations while adding a cause of action for penalties under the California
3 Labor Code Private Attorney General Act of

2004. Plaintiffs FAC estimates that there are

4 50,000 members in the proposed class. Attached hereto ás Exhibit B is a true and correct copy
5 of

plaintiffs FAC.
4.

6

On February 5, 2008, at the Early Neutral Evaluation conference, counsel for the

7 parties met informally and discussed discovery. At that time, counsel for Spherion expressed the
8 company's position that class-wide discovery was premature. Counsel for plaintiff

indicated that

9 plaintiff

would proceed with class-wide discovery. No resolution was reached and the Court

10 issued its Order Following Early Neutral Evaluation Conference specifying dates by which the

11 parties' joint discovery plan was to be submitted. Attached hereto as Exhibit C is a true and
12 correct copy of the Order Following Early

Neutral Evaluation Conference dated February 7,

13 2008.
14
5.

On February 8, 2008, plaintiff served requests for production of documents

15 seeking (among other things) state-wide discovery of "any and all documents" from January
16 2003 to the present "pertaining to" policies and procedures, training manuals, employee
17 handbooks, meal-and-rest-period compliance and studies, and other employment information for

18 all non-exempt California former and current employees. Attached hereto as Exhibit D is a true
19 and correct copy of Plaintiff s Request for Production of Documents (Set One).
20
6.
On February 8, 2008, plaintiff

also served interrogatories seeking (among other

21 things) state-wide information including the names, addresses, employment dates, job titles, and
22 job descriptions of all Spherion's California employees from September 2003 to the present.

23 The interrogatories also requested detailed information about various policies for all non-exempt

24 employees in California from September 2003 to the present. Attached hereto as Exhibit E is a
25 true and correct copy of

Plaintiffs Interrogatories (Set One).

26

7.

On February 29,2008, in accordance with the Order Following the Early Neutral

27 Evaluation Conference, the parties met and conferred via telephone regarding discovery issues

28 and attempted to resolve their discovery disputes. At that time, counsel agreed there was a
-2DECLARATION OF BRANDON MCKELVEY IN SUPPORT OF DEFENDANT'S MOTION FOR A PROTECTIVE ORDER

SCI 17092684.1 Case No. 07 CV 2178 W (AJB)

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1 dispute as to the natue and scope of class discovery that could not be resolved between the
2 parties, and the dispute would have to be brought to the attention ofthe magistrate. The parties

3 agreed that Spherion would respond to Special Interrogatory Number 1 and Request for
4 Production of Documents, Number 3 by March 12,2008. The due date for the remainder of

the

5 responses to plaintiffs written discovery was extended to April

2, 2008. Attached hereto as

6 Exhibit F is a true and correct copy of an e-mail from plaintiff s counsel memorializing the
7 agreement.
8

8.

On March 10,2008, the parties' Joint Discovery Plan was submitted to the cour.

9 In the Joint Discovery Plan, the parties brought the class discovery dispute to the magistrate's

10 attention and briefly outlined their respective positions on the issue. Attached hereto as Exhibit
11 G is a true and correct copy of

the Joint Motion Regarding Parties' Discovery Plan.

12
13 of

9.

On March 12, 2008, Spherion timely served responses to Request for Production

Documents, Number 3. Attached hereto as Exhibit H is a true and correct copy of Spherion
Documents (Set

14 Atlantic Enterprises, LLC's Response to Plaintiffs Requests for Production of

15 One), Request Number 3.

16

10.

On March 12,2008, Spherion timely served responses to Special Interrogatory

17 Number 1. Attached hereto as Exhibit I is a true and correct copy of Spherion Atlantic
18 Enterprises, LLC's Response to Plaintiffs Interrogatories (Set One), Interrogatory No. 1.
19

11.

On March 19, 2008, plaintiff sent me a meet-and-confer letter stating plaintiff s

20 position on state-wide class discovery. Attached hereto as Exhibit J is a true and correct copy of 21 the meet-and-confer letter sent by David A. Huch and dated March 19,2008.
22
12.

On March 21, 2008, a case management conference was held with the Honorable

23 Magistrate Anthony Battaglia. At the conference, the dispute between the parties regarding 24 state-wide discovery was discussed. The parties agreed that no further meet and confer was

25 necessary, and the issue was ripe for the magistrate's review. The Cour issued an order setting a
26 hearing on defendant's motion for protective order for May 16,2008. Attached hereto as
27 Exhibit K is a true and correct copy of

the Order Following Case Management Conference.
-3-

28
DECLARATION OF BRANDON MCKELVEY IN SUPPORT OF DEFENDANT'S MOTION FOR A PROTECTIVE ORDER

SCII7092684.1 Case No. 07 CV 2178 W (AJB)

Case 3:07-cv-02178-W-AJB

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1

13.

Following the Case Management Conference, I confirmed with plaintiffs

2 counsel, David A. Huch, that Spherion would not be responding to his meet-and-confer letter

3 because a hearing on the Motion for Protective Order was scheduled by the cour. Plaintiffs
4 counsel concurred. Attached hereto as Exhibit L is a true and correct copy of the e-mails
5 exchanged between counsel.

6

14.

On April

2, 2008, Spherion timely served responses to the remainder of

Plaintiffs

7 Request for Production of

Documents, per the agreement previously reached with plaintiffs

8 counseL. Attached hereto as Exhibit M is a true and correct copy of Spherion Atlantic
9 Enterprises, LLC's Response to Plaintiffs Request for Production of

Documents (Set One).

10

15.

On April

2, 2008, Spherion timely served responses to the remainder of

Plaintiffs

11 Interrogatories, per the agreement previously reached with plaintiffs counseL. Attached hereto
12 as Exhibit N is a true and correct copy ofSpherion Atlantic Enterprises, LLC's Response to

13 Plaintiff s Interrogatories (Set One).
14 I declare under penalty of perjury under the laws of the State of California that the
15 foregoing is true and correct. Executed on April 18, 2008, at Sacramento, California.
16 17
18

19

20
21

22
23

24
25

26 27
28

-4DECLARATION OF BRANDON MCKELVEY IN SUPPORT OF DEFENDANT'S MOTION FOR A PROTECTIVE ORDER

SCI 17092684.1 Case No. 07 CV 2178 W (AJB)

Case 3:07-cv-02178-W-AJB

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Exhibit A

5

Case 3:07-cv-02178-W-AJB

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SUPERIOR COURT OF CAL.IFORNIA, COUNTY OF SAN DIEGO
STREET ADDRESS:

330 Wesl Broadway
330 Wesl Broadway
San Diego, CA 92101

MAILING ADDRESS:

CITY AND ZIP CODE:
BRANCH NAME:

Cenlral

TELEPHONE NUMBER: (619) 686-6022

PLAINTIFF(S) I PETITIONER(S):

Philip J Martinet

DEFENDANT(S) I RESPONDENT(S): Spherion Atlantic Enterprises LLC

MARTINET VS. SPHERION ATLANTIC ENTERPRISES LLC

CASE NUMBER:

NOTICE OF CASE ASSIGNMENT

37 -2007 -OO075612-CU-OE-CTL
Department C-66

Judge: Charles R. Hayes

COMPLAINT/PETITION FILED: 09/25/2007

CASES ASSIGNED TO THE PROBATE DIVISION ARE NOT REQUIRED TO COMPLY WITH THE CIVIL REQUIREMENTS LISTED BELOW
IT IS THE DUTY OF EACH PLAINTIFF (AND CROSS-COMPLAINANT) TO SERVE A COpy OF THIS NOTICE WITH THE COMPLAINT (AND CROSS-COMPLAINT).
ALL COUNSEL WILL BE EXPECTED TO BE FAMILIAR WITH SUPERIOR COURT RULES WHICH HAVE BEEN PUBLISHED AS DIVISION ", AND WILL BE STRICTLY ENFORCED. TIME STANDARDS: The following timeframes apply to general civil cases and must be adhered to unless you have requested and been granted an extension of time. General civil consists of all cases except: Small claims appeals, petitions, and unlawful detainers.

COMPLAINTS: Complaints must be served on all named defendants, and a CERTIFICATE OF SERVICE (SDSC CIV345) filed within 60 days of filing. This is a mandatory document and may not be substituted by the filing of any

other document.
DEFENDANT'S APPEARANCE: Defendant must generally appear within 30 days of service of the complaint. (Plaintiff may stipulate to no more than a 15 day extension which must be in writing and filed with the Court.)
DEFAULT: If the defendant has not generally appeared and no extension has been granted, the plaintiff must request default within 45 days of the filing of the Certificate of Service. THE COURT ENCOURAGES YOU TO CONSIDER UTILIZING VARIOUS ALTERNATIVES TO LITIGATION, INCLUDING MEDIATION AND ARBITRATION, PRIOR TO THE CASE MANAGEMENT CONFERENCE. MEDIATION SERVICES ARE AVAILABLE UNDER THE DISPUTE RESOLUTION PROGRAMS ACT AND OTHER PROVIDERS. SEE ADR INFORMATION PACKET AND STIPULATION.

YOU MAY ALSO BE ORDERED TO PARTICIPATE IN ARBITRATION PURSUANT TO CCP 1141.10 AT THE CASE MANAGEMENT CONFERENCE. THE FEE FOR THESE SERVICES WILL BE PAID BY THE COURT IF ALL PARTIES HAVE APPEARED IN THE CASE AND THE COURT ORDERS THE CASE TO ARBITRATION PURSUANT TO CCP 1141.10. THE CASE MANAGEMENT CONFERENCE WILL BE CANCELLED IF YOU FILE FORM SDSC CIV-359 PRIOR TO THAT HEARING

sose eIV.721 (Rev. 11.06)

Page: 1

NOTICE OF CASE ASSIGNMENT

6

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~il

1 Derek 1. Emge (CSB No. 16 i 105)

EMGE & ASSOCIATES

2 550 West C Street, Ste. 1600
San Diego, CA 92101
3 Telephone (619) 595-1400

4 Facsimile (619) 595-1480

5 David A. Huch (CSB No. 222892)

LAW OFFICES OF DA VID A. HUCH
6 7040 A venida Encinas, Suite 104

7 Telephone (760) 402-9528
8 Facsimile (760) 683-3245

Carlsbad, CA 92011-4654

9 Attorneys for Plaintiff, PHILIP J, MARTINET, Individually, On Behalf of All Others Similarly
Situated, and on Behalf of

the General Public

10
11 12 13

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO

14 PHILIP 1. MARTINT, Individually, On ) Behalf of All Others Similarly Situated, and on )
15 Behalf of the General Public,

Case No. 37_2007-00075612-CU-OE-CTL

16 17
v.

) )

CLASS ACTION
COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, RESTITUTION, & DISGORGEMENT OF PROFITS:

Plaintiff,

) ) CLASS ACTION COMPLAINT FOR
)
) )

18

19 SPHERION ATLANTIC ENTERPRISES LLC, )

20 a Delaware Limited Liability Company; and ) 1.

DOES 1 through 50, inclusive, )
Defendants.

21
22
23 24

) 2.

Unlawful Deductions of Earned Wages In Violation of Labor Code §§ 204 & 221; Failure to Pay Overtime In Violation of
Labor Code §§ S10 & 1194;

)
) 3.

)
)

)
) 4.

25 26 27 28

) ) )

Failure to Provide Meal Breaks, Or Compensation in Lieu Thereof (Labor Code §§ 226.7, S12; Cal. Code Regs., Title 8 § 11040); Failure to Provide Rest Periods, Or Compensation in Lieu Thereof (Labor
Code § 226.7; Cal. Code Regs., Title 8 § 11040);

)
)

-1CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, RESTITUTION & DISGORGEMENT OF PROFITS

7

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) 5.
1

Failure to Reimburse for Reasonable
Business Expenses (Labor Code § 2802);

)
) 6.

2 3
4

) )
) 7.

Failure to Provide Properly Itemized Wage Statements (Labor Code § 226, 226.3);

)

Failure to Pay Compensation at Time of Termination In Violation of Labor Code
§§ 201-203;

)
5
6 7
8

) 8.

Unlawful and Unfair Business Practices
(Business & Professions Code § 17200 et

) ) )

seq.)

)

9 Plaintiff, PHILIP J. MARTINET, on behalf of himself, all others similarly situated, and on

10 behalf of the general public, alleges causes of action against defendants, and each of them, as
11 follows:

12 GENERAL ALLEGATIONS AND IDENTIFICATION OF THE PARTIES
13

l.

Plaintiff, PHILIP J. MARTINET ("PLAINTIFF"), is a competent adult who resides

14 in the City of San Diego, County of San Diego, State of California. From his date of hire, at or
15 around July 1, 2007 to until his date of separation of employment at or around August 18, 2007,
16 PLAINTIFF was employed as a non-exempt, hourly employee by Defendant SPHERION

1 7 ATLANTIC ENTERPRISES LLC in the County of San Diego, State of California.
1S
2.

PLAINTIFF is informed and believes that Defendant SPHERION ATLANTIC

19 ENTERPRISES LLC is a Delaware limited liabilty company with its principal place of business in
20 Fort Lauderdale, Florida. At all times mentioned herein, Defendant SPHERION A TLAJ\TIC

21 ENTERPRISES LLC was doing business in the State of California through its ownership and
22 operation of numerous recruiting and staffng offices throughout California, as well as recruiting

23 and employing thousands of California employees. PLAINTIFF is informed and believes, and

24 thereon alleges, that at all relevant times, SPHERION ATLANTIC ENTERPRISES LLC
25 employed PLAINITFF and exercised control over PLAINTIFF's wages, hours and working
26 conditions.
27 28
- 2 CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, RESTITliTION & DISGORGEMENT OF PROFITS

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i

3.

PLAINTIFF does not know the true names and capacities of Defendants sued herein

2 as DOES 1 through 50, inclusive, and will amend this Complaint to set forth the true names and
3 capacities of said defendants, along with the appropriate charging allegations when the same have
4 been ascertained.

5

4.

PLAINTIFF is informed and believes, and on that basis alleges, that each of the

6 fictitiously named defendants was in some manner legally responsible for the actionable and
7 unlawful actions, policies and practices as alleged herein. PLAINTIFF wil amend this Complaint
8 to set forth the true names and capacities of said defendants, along with the appropriate charging

9 allegations when the same have been ascertained.

10

5.

PLAINTIFF is informed and believes, and thereon alleges,. that at all times

11 mentioned herein, all Defendants, and each of them, were acting as the agent and/or employee of

12 each remaining co-defendant, and were acting with permission and consent of each other, and
13 within the course and scope of said agency and/or employment. PLAINTIFF is further informed

14 and believes that each co-defendant, by and through its offcers, directors or managing agents
the conduct alleged herein,
15 ratified, authorized and approved, expressly or implicitly, all of

16

6.

When in this Complaint reference is made to any act of the "DEFENDANT," such

1 7 shall be deemed to mean that offcers, directors, agents, employees, or representatives of the
18 Defendants named in this lawsuit committed or authorized such acts, or failed and omitted to

i 9 adequately supervise or properly control or direct their employees while engaged in the
20 management, direction, operation or control of the affairs of the Defendants and did so while
21 acting within the scope of

their employment or agency.

22

7.

When in this Complaint reference is made to any act by a "DEFENDANT" or

23 "Defendants" or "co-defendants," such allegations and reference shall also be deemed to mean the
24 acts and failures to act of each of

the named Defendants acting individually, jointly and severally.

25

JURISDICTION AND VENUE
8.

26

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

27 Paragraphs.

28

- 3 CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF. RESTITUTION & DISGORGEMENT OF PROFITS

9

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1

9.

This Court has jurisdiction over all causes of action asserted herein pursuant to

2 California Constitution, Article VI, Sec. 10, because this case is a cause not given by statute to

3 other trial courts.
4

10.

This Court has jurisdiction over DEFENDANT because each co-defendant is a

5 corporation, limited liability company or other business entity authorized to do business in the
6 State of California and registered with the California Secretary of State to do sufficient business

7 with suffcient minimum contacts in California, and/or otherwise intentionally avail itself of the
8 California market through the ownership and operation of recruiting and staffing offices
9 throughout the State of California, to render the exercise of jurisdiction by the California courts
10 consistent with traditional notions of fair play and substantial justice.

11

11.

Venue as to each Defendant is proper in this judicial district, pursuant to Code of

12 Civil Procedure § 395. DEFENDANT'S actionable and unlawful employment practices as to
13 PLAfNTIFF occurred in the County of San Diego, State of California.
14
12.

The Class Action Fairness Act (28 U.S.C,S. § 1332(d)) ("CAFA") does not apply to

1 5 the present class action Complaint. The present Complaint is brought solely on behalf of

16 DEFENDANT'S California-based employees, As a result, PLAINTIFF is informed and believes,
i 7 and thereon alleges, that under subsection (d)(4) of CAFA, a federal district court "shall decline to
18 exercise jurisdiction" of the present matter due to the following: greater than two-thirds of the

19 members of all proposed plaintiff class in the aggregate are citizens of the State of California; and

20 all Defendants are Defendants from whom significant relief is sought by members of the plaintiff

21 class, whose alleged conduct forn1s a significant basis for the claims asserted by the proposed
22 plaintiff class, and who are citizens of the State of California; and the principal injuries resulting

23 from the alleged conduct or any related conduct of each defendant were incurred in the State of

24 California; and two-thirds or more of the members of all proposed plaintiff classes in the
the State of 25 aggregate, and the primar defendants, are citizens of

California.

26
27 28
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i
2 A.
3

STATUTORY AND REGULA TORY BACKGROUND

California Labor Code Sections 201 through 203
13.

California Labor Code Section 201 requires an employer who discharges an

4 employee to pay compensation due and owing said employee immediately upon discharge.
5 California Labor Code Section 202 requires an employer to promptly pay compensation due and

6 owing an employee within 72 hours of that employee's separation of employment by resignation.
7 California Labor Code Section 203 provides that if an employer wilfully fails to pay compensation

8 promptly upon discharge or rèsignation as required pursuant to California Labor Code Sections
9 201 and 202, said employer is liable to said employee for waiting time penalties,

10 B.

California Labor Code Sections 218, 218.5 & 218.6
14.

11

Labor Code Section 218 provides a private right of action for employees to sLle

i 2 directly for any wages or penalty due to him/her under this article of the Labor Code. Labor Code

13 Sections 218.5 and 218.6 provide for the recovery of attorneys' fees, costs and pre-judgment
14 interest to the prevailing par in the event of an action to recover wages brought by private

15 individuals.
16 C.
California Labor Code Section 221

17

15.

Labor Code Section 221 prohibits an employer from receiving from an employee

18 any wage paid by the employer to the employee either by unauthorized deductions of employees'

19 wages or recovery after payment of the wage. In referring to "wages" paid, Section 22 1 prohibits

20 an employer from collecting or receiving wages "that have already been earned by performance of
21 agreed-upon requirements." (Steinhebel v. Los Angeles Times Communications, (2005) 126
22 CaL.App.4th 696, 707.)

23 D.
24

California Labor Code Section 226

16,

Labor Code Section 226 requires an employer to keep accurate, itemized pay

25 statements. Under California law, the precise, actual number of hours and minutes worked by a

26 non-exempt employee must be accurately itemized on each pay statement. If an employer
27 knowingly and intentionally fails to comply with this section, it is liable for the greater of all actual

28
- 5 CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF. RESTITUTION & DISGORGEMENT OF PROFITS

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i damages or $50 for the initial pay period in which' a violation occurs and $100 per employee for
2 each violation in a subsequent pay period, not exceeding an aggregate penalty of $4,000 per

3 employee.

4 E. California Labor Code Section 226.7
5

17.

Labor Code Section 226,7 provides that no employer shall require any non-exempt

6 employee to work during any meal or rest period mandated by an applicable order of the Industrial

7 Welfare Commission. This section also provides that if an employer fails to provide a non-exempt
8 employee a 30 minute meal period and/or 10 minute rest periods in accordance with an applicable
9 order of the Industrial Welfare Commission, the employer shall pay the employee one additional

10 hour of pay at the employee's regular rate of compensation for each work day that the meal period
11 was not provided and one additional hour of pay at the employee's regular rate of compensation for

12 each work day that a rest period is not provided.

13 F.
14

California Labor Code Section 510
18.

Labor Code Section 510 requires the payment of overtime to nonexempt employees

15 at the rate of 1 Yi times their regular rate of pay for all hours worked in excess of eight (8) hours
16 per day and all hours worked in excess of forty (40) hours per workweek, and payment of overtime

1 7 to nonexempt employees at the rate of two times the regular rate of pay for all hours in excess of
18 twelve (12) hours per day and all hours worked excess of eight hours on the seventh day worked in
1 9 any work week.

20 G. 21

California Labor Code Section 512
19.

Labor Code Section 512 provides that an employer may not employ an employee

22 for a work period of more than five hours per day without providing the employee with a meal

23 period of not less than 30 minutes, except that if the total work period per day of the employee is
24 no more than six hours, the meal period may be waived by mutual consent of both the employer
25 and employee. An employer may not employ an employee for a work period of more than 10 hours

26 per day without providing the employee with a second meal period of not less than 30 minutes,

27 except that if the total hours worked is no more than 12 hours, the second meal period may be
28
- 6 CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES. INJUNCTIVE RELIEF, RESTITUTION & DISGORGEMENT OF PROFITS

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1 waived by mutual consent of the employer and the employee only if the first meal period was not
2 waived.

3 H.
4

Industrial Wage Order 4-2001 (Title 8, California Code of Regulations, § 11040)
20.

Industrial Wage Order 4-2001 (and its predecessors), governing "Professional,

5 Technical, Clerical, Mechanical and Similar Occupations," is the applicable wage order in this

6 action. Industrial Wage Order 4-2001, which has been enacted into California's regulatory law as
7 Title 8, California Code of Regulations, § 1 i 040, provides that employers must keep accurate time

8 records showing when employees begin and end each meal period (subsection (7)(A)(3)). In

9 addition, the wage order provides that every employer shall permit all employees to take rest
1 0 periods in the middle of each work period. The authorized rest period is to be based on the total
11 hours worked daily at the rate often (10) minutes net rest time per four (4) hours or major fraction
12 thereof. (subsection (12)(A)). The regulation also defines an "employer" as "any person as defined

13 in Section 1 8 of the Labor Code, who directly or indirectly, or through an agent or any other
14 person, employs or exercises control over the wages, hours, or working conditions of any person."

15 I.
16

California Business & Professions Code Section 17200 et seq.
21.

California Business & Professions Code § 17200 defines unfair competition to

1 7 include "unlawfl, unfair or fraudulent business practices,"
18
22.

California Business & Professions Code § 17203 provides that "(t)he court may

19 make such orders or judgments.. .as may be necessary to prevent the use or employment by any
20 person of any practice which constitutes unfair competition, as defined in this chapter, or as may be

21 necessary to restore any person in interest any money or property, real or personal, which may
22 have been acquired by means of unfair competition."

23

23.

California Business & Professions Code § 17204 provides for suits for injunctive

24 relief, restitution and disgorgement of profits.

25 26
27

28

- 7 CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF. RESTITUTION & DlSGORGEME:-T OF PROFITS

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1

CLASS ACTION ALLEGATIONS
24.

2

PLAINTIFF brings the First through Eighth Causes of Action of this suit as a class

3 action pursuant to California Code of Civil Procedure § 382, on behalf of all individuals employed

4 by DEFENDANT in the State of California in hourly, non-exempt positions during the relevant
5 time period. This action'is also brought for the benefit of the general public.
6

25,

The putative classes PLAINTIFF will seek to certify are currently composed of and

7 defined as follows:

8 9

a.

All current and former California-based, hourly, non-exempt

employees

of Defendant SPHERION

ATLANTIC

10
11 12

ENTERPRISES LLC who were employed by SPHERION

ATLANTIC ENTERPRISES LLC between September 25,
2003 and the present (hereinafter, "the CLASS").
b.

13
14

All former California-based, hourly, non-exempt employees of
Defendant SPHERION ATLANTIC ENTERPRISES LLC who

15

separated their employment with SPHERION ATLANTIC

16
17 18
26.

ENTERPRISES LLC between September 25, 2004 and the
present (hereinafter, "the SUBCLASS.")

Numerosity: The potential quantity of members of the CLASS and SUBCLASS as

19 defined is so numerous that joinder of all members would be unfeasible and unpracticaL. The

20 disposition of their claims through this class action will benefit both the parties and this Court. The

21 quantity of members of the CLASS and SUBCLASS is currently unknown to PLAINTIFF;

22 however, it is estimated that there are at least 50,000 members in the CLASS and at least 10,000

23 members in the SUBCLASS. The quantity and identity of such membership is readily
24 ascertainable via inspection of DEFENDANT'S records.
27.

25

Tvpicality: The claims of PLAINTIFF are typical of the claims of all members of

26 the CLASS and SUBCLASS mentioned herein because all members of the CLASS and
27 SUBCLASS sustained injuries and damages arising out of DEFENDANT'S common course of
28
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i conduct in violation of California wage and hour law, and the injuries and damages of all members
2 of

the CLASS and SUBCLASS were caused by DEFENDANT'S wrongful conduct in violation of

3 California statutory and regulatory law, as alleged herein.

4

28.

Adequacy: PLAINTIFF is an adequate representative of the CLASS and

5 SUBCLASS and will fairly protect the interests of the members of the CLASS and SUBCLASS,
6 and has no interests antagonistic to the members of the CLASS and SUBCLASS, and will

7 vigorously pursue this suit via attorneys who are competent, skilled and experienced in litigating
8 matters of this type.
9

29.

Superiority. The nature of this action and the nature of the laws available to

i 0 PLAINTIFF make the use of the class action format a particularly effective and appropriate
11 procedure to afford relief to PLAINTIFF for the wrongs alleged herein:

12 13
14

a.

This case involves large corporate Defendants and a large number of
individual class members with common issues of law and fact. According to

DEFENDANT'S website, www.spherion.com. DEFENDANT employs
"(a)pproximately 300,000" employees "making Spherion one of the top

15

16
17
b,

employers in North America;"

If each individual member of the CLASS and SUBCLASS were required to

18

file an individual lawsuit, the large corporate Defendant would necessarily
gain an unconscionable advantage because DEFENDANT would be able to
exploit and overwhelm the limited resources of each member of the CLASS

19

20
21 22

and SUBCLASS with DEFENDANT'S vastly superior financial and legal
resources.
c.
Requiring each individual member of

23
24

the CLASS and SUBCLASS to pursue

an individual remedy would also discourage the assertion of lawful claims by the members of the CLASS and SUBCLASS who would be disinclined
to pursue an action against DEFENDANT because

25

26
27

of an appreciable and

28
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1

justifiable fear of retaliation and permanent damage to their lives, careers
and well being;
d.

2 3
4

Proof of a common business practice or factual pattern, of which the
members of the CLASS and SUBCLASS experienced, is representative of

5 6
7

the CLASS and SUBCLASS herein and will establish the right of each of
the members of CLASS and SUBCLASS to recover on the causes of action
alleged herein;
e.

8

The prosecution of separate actions by the individual members of the

9

CLASS and SUBCLASS, even if possible, would create a substantial risk of

10

inconsistent and varing verdicts or adjudications with respect to the
individual members of

11
12 13 14

the CLASS and SUBCLASS against DEFENDANT,

which would establish potentially incompatible standards of conduct for
DEFENDANT and/or legal determinations with respect to individual
members of

the CLASS and SUBCLASS.
Common Questions of

15 16

30.

Existence and Predominance of

Fact and Law:

There are common questions of fact and law as to the members of the CLASS and

17 SUBCLASS, which predominate over questions affecting only individual members of the CLASS

18 and SUBCLASS including, without limitation: 19
a.
Whether the members of

the CLASS were subjected to unauthorized and

20
21 22
b.

ilegal deduction of their earned wages;
Whether the members of

the CLASS were expected, required, permitted

and/or suffered to work overtime hours on a regular basis;
c.
Whether the members of

23
24

the CLASS were paid overtime compensation in

accordance with California statutory and regulatory law;
d.
Whether the members of

25

the CLASS were provided with 30-minute meal

26
27 28
e.

breaks;

Whether DEFENDANT has failed to keep accurate time records showing
- 10 CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, RESTITUTION & DISGORGEMENT OF PROFITS

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1 2 3
4

when members of

the CLASS begin and end each meal break;

f.

Whether the members of the CLASS were provided with 1 O-minute rest

periods;
g.
Whether the members of

the SUBCLASS received all compensation owed

5 6
7
8
1.

and due at the time of their separation of employment;
h.
Whether the members of

the SUBCLASS are entitled to seek recovery of

penalties pursuant to Labor Code § 203;

Whether DEFEDANT properly itemized the wage statements of the
members of the CLASS;

9

10
11

J.

Whether DEFENDANT'S conduct constituted unfair or unlawful business

practices within the meaning of Business & Professions Code § 17200 et
seq.;
k.
Whether the members of

12 13
14

the CLASS and SUBCLASS are entitled to

compensatory damages, and if so, the means of measuring such damages;
1.
Whether the members of

15

the CLASS and SUBCLASS are entitled to

16
17 18
m.

injunctive relief;
Whether the members of

the CLASS and SUBCLASS are entitled to

restitution;
n.
Whether the members of

19
20
21 22

the CLASS and SUBCLASS are entitled to

disgorgement of profits;
o.

Whether DEFENDANT is liable for pre-judgment interest; and
Whether DEFENDANT is liable for attorneys' fees and costs.

p,

23
24

25

26
27
28
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1

. FIRST CAUSE OF ACTION Wages Earned in Violation of (Unlawfl Deductions of
California Labor Code Sections 204 & 221)
(On Behalf of

2
3
4

the CLASS)

31.

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

5 Paragraphs.

6

32.

PLAINTIFF alleges, on the basis of information and belief, that at all relevant times

7 DEFENDANT has continuously engaged in the regular practice of deducting, collecting and/or
8 receiving wages earned by members of the and CLASS. As a result, members of

the CLASS have

9 not been paid all wages earned in performing work for DEFENDANT.

10

33.

PLAINTIFF alleges, on the basis of information and belief, that DEFENDANT was

11 not authorized, required nor empowered to deduct, collect and/or receive wages from the members
12 of the CLASS pursuant to state or federal

law, nor express authorization of the members of the and

13 CLASS, in writing, to cover insurance premiums, hospital or medical dues, nor pursuant to an
14 enforceable and lawfl wage agreement or statute.
15
34.

PLAINTIFF alleges, on the basis of information and belief, that DEFENDANT'S

16 regular practice of deducting, collecting and/or receiving wages earned by the members of the
1 7 CLASS violates California Labor Code sections 204 and 221.
18
35.

As a result of the actions of DEFENDANT, In deducting, collecting and/or

19 receiving wages earned by the members of the CLASS, members of the CLASS were damaged by

20 not receiving wages that they should have received. Members of the CLASS are therefore entitled

21 to compensation in an amount to be proven at trial for unpaid wages, pre-judgment interest,
22 attorneys' fees and costs pursuant to Labor Code sections 218, 218.5 & 218.6.
23
24

25 26
27

28
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i
2 3
4

SECOND CAUSE OF ACTION (Failure to Pay Overtime Compensation in Violation of California Labor Code Sections 510 & 1194)
(On Behalf of

the CLASS)

36.

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

5 Paragraphs.

6

37.

PLAINTIFF alleges, on the basis of information and belief, that at all relevant times

7 DEFENDANT has continuously engaged in the regular practice of requiring, suffering or
8 permitting members of the CLASS to work hours in excess of eight hours per day and/or 40 hours
9 per week.

10

38.

The laws of the State of California require employers, such as DEFENDANT, to

11 pay overtime compensation to all non-exempt employees. PLAINTIFF alleges, on the basis. of

12 information and belief, that members of the CLASS are not exempt from overtime pay
13 requirements under California law. PLAINTIFF further alleges that all members of the CLASS

i 4 have been classified by DEFENDANT as non-exempt, hourly employees.
15
39.

As a result of the actions of DEFENDANT in failing and/or refusing to pay

i 6 overtime compensation, members of the CLASS were damaged by not receiving overtime
17 compensation which they should have received, but did not receive. Members of the CLASS are

18 therefore entitled to compensation in an amount to be proven at trial for unpaid overtime, pre-

i 9 judgment interest, attorneys' fees and costs pursuant to Labor Code section l194.
20
21 22 23
40.

THIRD CAUSE OF ACTION
(Failure to Provide 30-Minute Employee Meal Period)
(On Behalf of

the CLASS)

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

24 Paragraphs,

25

41.

PLAINTIFF alleges, on the basis of information and belief, that within each of the

26
27

four years prior to the commencement of this action, DEFENDANT promulgated and enforced

policies under which members of the CLASS regularly worked more than five hours in a day
without being provided with a thirt-minute meal period during which members of the CLASS
- 13 CLASS ACTION COMPLAI:\T FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, RESTITUTION & DISGORGEMENT OF PROFITS

28

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i were relieved of all of their respective work duties. DEFENDANT also promulgated and enforced
2 policies under which members of the and CLASS regularly worked more than ten hours in a day
3 without being provided with a second thirt-minute meal period during which members of the
4 CLASS were relieved of all of

their respective work duties.

5

42.

PLAINTIFF alleges, on the basis of information and belief, that at all relevant
the CLASS

6 times, DEFENDANT has failed to maintain accurate records of when members of

7 begin and end each meal period.

8

43.

PLAINTIFF alleges, on the basis of information and belief, that members of the

9 CLASS are entitled to additional wages pursuant to California Labor Code Section 226.7 for each

10 work shift lasting more than five hours during which members of the CLASS were not provided
11 with one or more thirty minute meal periods.
12
44.

As a result of DEFENDANT'S conduct as alleged herein, members of the CLASS

13 have suffered harm and monetary damages, in an amount to be ascertained at triaL.
14

FOURTH CAUSE OF ACTION
(Failure to Allow i O-Minute Employee Rest Periods)

15 16
45.
(On Behalf of

the CLASS)

17

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

Paragraphs.
18
46.

PLAINTIFF alleges, on the basis of information and belief, that within each of the

19

20
21 22

four years prior to the commencement of this action, DEFENDANT promulgated and enforced

policies under which members of the CLASS regularly worked more than four hours per day
without being allowed one or more paid rest periods of at least ten minutes during which the
members of the CLASS were relieved of all of

23
24

their respective work duties.

47. PLAINTIFF alleges, on the basis of information and belief, that members of the
CLASS are entitled to additional wages pursuant to California Labor Code Section 226.7 for each

25

26
27
28

four hour work period during which members of the CLASS were not provided with one or more
ten minute rest periods.

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1

48.

As a result of DEFENDANT'S conduct as alleged herein, members of the CLASS

2 have suffered har and monetary damages, in an amount to be ascertained at triaL.
3
4

FIFTH CAUSE OF ACTION (Failure to Reimburse for Reasonable Business Expenses in Violation of
Labor Code § 2802; CaL. Code Regs., Title 8 § 11040 sections 8 & 9)
(On Behalf of

5
6

the CLASS)

49.

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

7 Paragraphs.
8

50.

Labor Code Section 2802 provides that an employer shall indemnify his or her

9 employee for all necessary expenditures or losses incurred by the employee in direct consequence

10 of the discharge of his or her duties, or of his or her obedience to the directions of the employer.

11 Title 8 CCR § 11010(8) provides that "No employer shall make any deduction from the wage or

12 require any reimbursement from an employee for any cash shortage, breakage, or loss of
13 equipment, unless it can be shown that the shortage, breakage, or loss is cause by a dishonest or
14 wilful act, or by the gross negligence of

the employee."

15

51.

During the applicable statutory period, PLAINTIFF and the members of the CLASS

1 6 incurred necessary expenditures and losses in direct consequence of the discharge of their
1 7 employment duties and their obedience to the directions of DEFENDANT, including but not

18 limited to travel expenses, gas charges, mileage, cell phone charges, laptop computer usage, and
19 other similar expenditures.

20

52.

PLAINTIFF is informed and believes that pursuant to California Labor Code §

21 2802 and Title 8 CCR § 11040(8) & (9), PLAINTIFF and the members of the CLASS are entitled

22 to recover their un-reimbursed expenditures and losses, interest thereon and attorneys' fees and
23 costs, in amounts to be proven at triaL.

24

25

26
27
28
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1

2
3
4

SIXTH CAUSE OF ACTION (Failure to Provide Properly Itemized Wage Statements in Violation of
Labor Code §§ 226 and 226.3; CaL. Code Regs., Title 8 § 11040 section 7)
(On Behalf of

the CLASS)

5 6
7

53,

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

Paragraphs,
54.

Labor Code Section 226 requires an employer to keep accurate, itemized pay
of hours and

8 statements. Under California law, gross wages earned, the precise, actual number

9 minutes worked by a non-exempt employee, all deductions, net wages earned, inclusive dates of

10 the pay period, the name of the employee, the name and address of the legal entity that is the

11 employer, and all applicable hourly rates in effect during the pay period must be accurately
12 itemized on each pay statement. Furhermore, the deductions made from payment of wages must

13 be recorded, properly dated, and a copy of the statement or a record of the deductions shall be kept

14 on file by the employer for at least three years at the place of employment or at a central location
15 within the State of California.

16

55.

During the applicable statutory period, DEFENDANT has routinely failed to

1 7 provide the members of the CLASS, at the time of each payment of wages, an itemized statement

18 in writing showing the requirements of Labor Code § 226 and section 7 of Title 8 CCR § 11040.

19 DEFENDANT'S failure to provide itemized statements to the members of the CLASS has been
20 knowing and intentional and was in clear violation of Labor Code § 226(a). In direct violation of

21 California law, DEFENDANT has refused to provide the members of the CLASS with any record
22 or documentation of

expenses deducted from such employees' earnings.
The members of the CLASS have suffered injuries as a result of the knowing and

23

. 56.

24 intentional failure of DEFENDANT to comply with. Labor Code § 226(a) and Title 8 CCR §

25 11040(7), in that DEFENDANT'S failure to provide Class Members with an itemized wage
26 statement made it impossible for the members of the CLASS to be aware that unlawful deductions

27 were being made from their earnings, that they were not being paid all wages earned, and that in
28
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1 certain instances their wages fell below the statutory hourly minimum wage and overtime wage

2 rates.
3

57.

PLAINTIFF is informed and believes, and thereon alleges, that DEFENDANT'S

4 knowing and intentional failure to furnish the members of the CLASS with itemized wage
5 statements, as alleged above, violated Labor Code § 226(a), as well as Title 8 CCR § 1 i 040(7).
6 Labor Code § 226(e) entitles PLAINTIFF and the members of

the CLASS to recover the greater of

7 their actual damages caused by DEFENDANT'S violations, or $50 per employee for the initial pay
8 period in which the violation occurred, and $100 per employee for each violation in subsequent
9 pay periods, not exceeding an aggregate penalty of $4,000 per employee.

10 11 12

(Failure to Pay Compensation at the Time of

SEVENTH CAUSE OF ACTION Termination in Violation of
the SUBCLASS)

California Labor Code Sections 20 1 -203)
(On Behalf of

13

58.

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

14 Paragraphs.

15

59.

PLAINTIFF alleges, on the basis of information and belief, that DEFENDANT has

16 wilfully failed and have refused. to pay all compensation and wages due to members of the
1 7 members of the SUBCLASS upon their separation of employment.

18

60.

DEFENDANT'S failure to timely pay compensation and wages to members of the

19 members of the SUBCLASS at the time of their separation of employment is willfuL. As a result,

20 DEFENDANT is liable to memb~rs of the members of the SUBCLASS for waiting time penalties
21 under California Labor Code Section 203 in an amount to be ascertained at triaL.
22

23
24 25

26
27

28
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1 EIGHTH CAUSE OF ACTION
(Unlawful and Unfair Business Practices: Business & Professions Code §§ 17200 et seq.)
2
(On behalf of

PLAINTIFF, the CLASS, and the General Public)

3

61.
4

PLAINTIFF realleges by reference, as if fully set forth herein, all of the above

Paragraphs.
5

62.
6
7

Within each of the four years prior to the commencement of this action,

PLAINTIFF is informed and believes, and thereon alleges, that DEFENDANT has unlawfully

failed to pay hourly wages and overtime wages to Class Members, including Plaintiff, in violation
8

of Labor Code §§ 204, 221 510, 1194, 1197 and 1197,1; unlawfully failed to provide meal breaks.
9

10 11

or compensation in lieu thereof, to Class Members, including PLAINTIFF, in violation of Labor
Code §§ 226.7 and 512; unlawflly failed to provide rest periods, or compensation in lieu thereof,
to Class Members, including PLAINTIFF, in violation of Labor Code § 226.7; unlawfully failed to

12

reimburse Class Members, including PLAINTIFF, for reasonable business expenditures in
13 14

violation of Labor Code § 2802; and unlawfully failed to provide properly itemized wage
statements to Class Members, including PLAINTIFF, in violation of

15

Labor Code § 226.

16
17

63. By committing the alleged acts and/or omissions as described in this Complaint,
DEFENDANT has engaged, and continue to engage, in unlawful and/or unfair business practices
within the meaning of California Business & Professions Code § i 7200 el seq.

18

19

64. PLAINTIFF alleges, on the basis of information and belief, that as a result of
DEFENDANT'S alleged acts and/or omissions as described in this Complaint, DEFENDAl\T has

20 21
22

unlawflly eared profits from such unlawful and/or unfair business practices.

65. A request for injunctive relief, restitution and for the disgorgement of unlawfully
23
24

earned profits is specifically authorized by California Business & Professions Code § 17200 el seq.

Thus, on behalf of members of the CLASS, and on behalf of the general public, PLAINTIFF seeks

25

injunctive relief, restitution (to members of the CLASS) of all unlawfully withheld funds, and the

26
27

disgorgement of all unlawfully earned profits (to members of the CLASS) obtained by
DEFENDANT as a result of DEFENDANT'S alleged acts and/or omissions as described in this
Complaint.

28

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i

66.

PLAINTIFF is informed and believes, and thereon alleges, that unless restrained

2 and ordered to pay restitution and disgorge profits derived from said unfair and unlawful business

3 practices, DEFENDANT will continue to engage in the alleged acts and/or omissions as described
4 in this Complaint.

5 PRA YER FOR RELIEF
6 WHEREFORE, PLAINTIFF, on behalf of himself, all others similarly situated, and on
7 behalf of

the general public, prays for judgment as follows:
1.

8

That the Court issue an Order certifying the CLASS and SUBCLASS, appointing

9 the named PLAINTIFF as representative of all others similarly situated and appointing the law
10 finn(s) representing the named PLAINTIFF as counsel for members of

the CLASS;

11 As to the First Cause of Action for Unlawfully Deducted Wages on Behalf of the CLASS

12
13 as a result of

2.

For compensatory damages according to proof, including all wages due and owing
DEFENDANT'S unlawfl deduction of wages earned by members of

the CLASS:

14

3.

For pre-judgment interest at the legal rate pursuant to Civil Code Section 3289 and

1S Labor Code Section 218.6;

16

4.

For attorneys' fees and costs pursuant to Labor Code Section 2 1 8.5, or as otherwise

1 7 permitted by statute;

18

5.

For such other and further relief as the court deems just and proper;
the CLASS

19 As to the Second Cause of Action for Overtime Compensation on Behalf of

20
21 as a result of

6.

For compensatory damages according to proof, including all wages due and owing
DEFENDANT'S failure to pay overtime compensation to members of

the CLASS;

22

7.

For pre-judgment interest at the legal rate pursuant to Civil Code Section 3289 and

23 Labor Code Section 1194;

24

8.

For attorneys' fees and costs pursuant to Labor Code Section 1194, or as otherwise

25 pennitted by statute;

26
27

9.

For such other and further relief as the court deems just and proper;

28
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25

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i As to the Third Cause of Action for Failure to Allow 3D-Minute Employee Meal Periods on Behalf
2 of the CLASS
3

10.

For compensatory damages in the form of additional wages equal to one hour's

4 regular pay for each member of the CLASS for each work shift in which such member worked

5 more than five hours without being permitted to take the required meal period;
6

11.

For pre-judgment interest at the legal rate pursuant to Civil Code Section 3289 and

7 Labor Code Section 218.6;
8

12.

For attorneys' fees and costs pursuant to Labor Code Section 218.5, or as otherwise

9 permitted by statute;

10

13.

For such other and further relief as the court deems just and proper;

13

14.

For compensatory damages in the forn1 of additional wages equal to one hour's
the CLASS for each four hour work period in which such member

14 regular pay for each member of

15 worked without being permitted to a paid rest period;

16

15.

For pre-judgment interest at the legal rate pursuant to Civil Code Section 3289 and

17 Labor Code Section 218.6;

18

16.

For attorneys' fees and costs pursuant to Labor Code Section 218.5, or as otherwise

1 9 permitted by statute;

20

17.

F or such other and fuher relief as the court deems just and proper;

21 As to the Fifth Cause of Action for Indemnification of Employees for Expenditures or Losses in
22 Discharge of Duties or Obedience to Directions on Behalf of the CLAS S

23

18.

For compensatory damages according to proof, including but not limited to

24 expenditures, losses, lost wages, earnings and other employee benefits and all other sums of money
25 owed to each member of the CLASS incurred during the proper discharge of their duties for
26 DEFENDANT, or during the course and scope of

their employment for DEFENDANT.

27

19.

For pre-judgment interest at the legal rate pursuant to Civil Code Section 3289;
- 20 CLASS ACTION COMPLAINT FOR COMPENSATOR Y DAMAG ES. INJUNCTIVE RELIEF, RESTITUTION & DISGORGEMENT OF PROFITS

28

26

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1

20.

For attorneys' fees and costs pursuant to Labor Code § 2802 or as otherwise

2 permitted by statute;

3

21.

For such other and further relief as the court deems just and proper;

4 As to the Sixth Cause of Action for Improperly Itemized Wage Statements on Behalf of the

5 CLASS
6

22.

For compensatory damages or minimum statutory damages of $50 for the first

7 violation and $100 for each subsequent violation pursuant to Labor Code Section 226( e);

8

23.

For pre-judgment interest at the legal rate pursuant to Civil Code Section 3289 and

9 Labor Code Section 226( e);

10

24.

For attorneys' fees and costs pursuant to Labor Code Section 226(e) or as otherwise

i 1 permitted by statute;

12

25

For such other and further relief as the court deems just and proper;
the SUBCLASS

13 As to the Seventh Cause of Action for Waiting Time Penalties on Behalf of

14

26.

For statutory penalties pursuant to Labor Code Section 203;

15

27.

For pre-judgment interest at the legal rate pursuant to Civil Code Section 3289 and

16 Labor Code Section 218.6;

17

28.

For attorneys' fees and costs pursuant to Labor Code Section 218.5, or as otherwise

i 8 permitted by statute;
i 9

29.

For such other and further relief as the court deems just and proper;

20 As to the Eighth Cause of Action for Unlawfl and Unfair Business Practices on Behalf of the
21 CLASS and the General Public

22

30.

For an Order requiring DEFENDANT to identify each of the members of the

23 CLASS by name, home address and home telephone number;
24
31.

For an Order compellng DEFENDANT to restore unpaid wages, expenditures,

25 losses, income and other related benefits (in the form of restitution) to each of the members of the

26 CLASS who have suffered as a result of DEFENDANT'S unlawful and unfair business practices
27 alleged herein;
28
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i

32.

For an order compelling DEFENDANT to disgorge and pay over to each of the

2 members of the CLASS all profits and savings resulting from DEFENDANT'S unlawful and
3 unfair business practices alleged herein;

4

33.

For issuance of a permanent injunction enjoining DEFENDANT from continuing to

5 engage in the unlawful and unfair business practices alleged herein;
6

34.

For interest at the legal rate pursuant to Civil Code Section 3289 and Labor Code

7 Section 204.6;
8
9 Code of

35.

For attorneys' fees and costs pursuant to Labor Code Sections 2 i 8.5, i 194 & 2802,

Civil Procedure Section 1021.5 and as otherwise permitted by statute;
36.

10

For such other and further relief as the court deems just and proper;

11 DATED: September 25, 2007
12

..---_.v_ ....,.f,I -~-_._.- '. -"-'--". '-.,/

EMGE & AfÖCIty(ES

13
14

\ .,--- ,-.. ~--_:.-"~ ....::::-:.~

Derek 1. Emge, Esq: /

550 West "c" St., S~ge1600
San Diego, CA 921 ()1

15

Attorneys for Plaintiff, PHILIP J. MARTINET, Individually, on behalf of all others similarly situated,
andon behalf of

16
17

the general public.

18

19

20 21 22

23
24

25

26
27 28
- 22 CLASS ACTION COMPLAINT FOR COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, RESTITUTION & D1SGORGEMENT OF PROFITS

28

Case 3:07-cv-02178-W-AJB

Document 22-7

Filed 04/18/2008

Page 29 of 151

SUMMONS
(c/rAC/ON JUD/CIAL)
NOTICE TO DEFENDANT: (A VISO AL DEMANDADO):
FOR COURT USE ONL.Y . (SOLO PARA USO DE LA CoarE,

SUM-100

Liability Company~",,,~ \)0,,;; i t-\"(()I.'J"\.'5r)I:'\L\,-.I,~'\..i"

SPHERION ATLATIC ENTERPRISES LLC, a Delaware Limited

YOU ARE BEING SUED BY PLAINTIFF: (LO ESTÁ DEMANDANDO EL DEMANDANTE):

General Public

PHILIP J. MARTINET ( Individuallyi On Behalf of All Others Similarly Situatedi and on Behalf of the

You have 30 CALENDAR DAYS after thIs summons and legal papers are served on you to file a written response atthis court and have a

copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response, You can find these court forms and more information at the California Courts Online Self.Help Center (ww.courtlnfo.ca.gov/selfhelp). your county law library, or the courthouse
nearest you, If you cannot pay the fiing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may

lose the case by default, and your wages, money, and propert may be taken without further warning from the court,
There are other legal requirements, You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services

program. You can locate these nonprofit groups at the California L.egal Services Web site (ww,lawhelpcalifornia.org), the California Courts Online Self.Help Center (ww.courtinfo.ca.gov/selfhelp). or by contacting your local court or county bar association.
Tiene 30 D/AS DE CALENDARIO después de que Ie entreguen esta cltac/ón y pape/es legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una copla al demandante. Una carla a una /lamada te/efónica no 10 protegen. 5u respuesta por escrlto tlene que estar en formato legal correcto si desea que procesen su caso en la corle. Es poslble que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corle y más información en el Centro de Ayuda de las Carles de

California (ww.eourlinfo.ca.govlselfhelplespanol/). en la biblioteea de leyes de su condado 0 en la corle que Ie quede más cerea. 5i no
puede pagar la cuota de presentación, pida al secretario de la corte que Ie dé un formulario de exención de pago de cuotas. 5i no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corle Ie podrá quitar su sue/do, dinero y bienes sin más advertencla. Hay otros requisitos legales. Es recomendable que /lame a un abogado inmediatamente. 5i no conoce a un abogado, puede Ilamar a un i
servicio de remisión a abogados. 5i no puede pagar a un abogado, es posible que cumpla con 10S requisitos para obtener servicios '

legales gratuitos de un programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de I California Legal Services, (www.lawhefpcalifomia.org), en ef Centro de Ayuda de fas Cortes de California, (www.courtinfo.ca.govlseffhefplespanofl) 0 poniéndose en contacto con fa corte 0 el colegio de abogados locafes,
The name and address of

San Diego Superior Court 330 West Broadway San Diegoi CA 92101

(EI nom~re y direceión d~ la corte es): (Nume'o del vasoJ"

the court is: CASENUMB~R: ~7_2007_0007561i-cu-",

The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (EI nombre, la dirección y el número de teléfono delabogado del demandante, 0 def demandante que no tiene abogado, es):

Derek J. Emge SBN 161105 (619) 595~1400 (619) 595-1480
Emge & Associates 550 West C Street, Suite 1600

DATE: SEP 25 2007 Clerk, by \
¡SEAL) 1. . as an individual defendant.
3. -: on behalf of (specify):
,f.

(For proof of seMee of this summons, use Proof of Service of Summons (form P 0).)
(Para prueba de entrega de esta eitatión use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served
2, as the person sued under the fictitious name of (speCify):

Fecha Seeretario. L
under: ¡-"~1 CCP 416.10 (corporation)

,/

CCP 416.60 (minor)

L~.; CCP 416.20 (defunct corporation) ~..~l CCP 416.40 (association or partnership)
'~.: other (specify):

CCP 416.70 (conservatee) CCP 416.90 (authorized person)
Page 1 of 1

4,
Form Adopled for Mandatory Use
Judicial Council of California

, by personal delivery on (date):

Code of Civil Procedure §§ 412.20. 4ô5

SUM.100 IRev. January 1, 2004)

SUMMONS

So~&is'
L$ Plus

29

Case 3:07-cv-02178-W-AJB

Document 22-7

Filed 04/18/2008

Page 30 of 151
CM-010

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar number, and address):

FG~OURT USE ONL Y . .;.-t

Derek J. Emge SBN 161105 Emge & Associates 550 West C Street, suite 1600 San Diego, CA 92101
TELEPHONE NO.: ( 619 ) 595 -1400 FAX NO: ( 619 ) 595 - 14 8 0
ATTORNEY FOR

- .1

(Nama): Plaintiff Phili J. Martinet

l t Vi'"

SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Diego
STREET ADDRESS:
MAILING CITY AND zip

ADDRESS: 330 West Broadway CODE: San Diego, CA 92101
CASE NUMBER'

BRANCH NAME:

CASE NAM~ Martinet v. Spherion

x Unlimited Llmlted_ :--l Counter Joinder
(Amount demanded (Amount demanded Filed with first appearance by defendant JUDGE:

CIVIL CASE COVER SHEET Complex Case Designation

37-207 -O0075612-C U-OE -CTL

exceeds $25,000) is $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT'

Items 1-6 below must be com leted see instructions on pa e 2), 1. Check one box below for the case type that best describes this case:

.~

Auto Tort r x Other employment (15)

Other judicial review (39)

Auto (22) Con~ract

Provisionally Complex Civil Litigation

Uninsured motorist (46) ! Breach of contracVwarranty (06)
Rule 3.740 collections (09)

(Cal. Rules of Court, rules 3.400-3.403)
Antitrustlrade regulation (03)

Other PI/PDIWD (Personallnjury/Property .

DamagelWrongful Death) Tort- Other collections (09)

_ Asbestos (04) i Insurance coverage (18)
Product liability (24) i Other contract (37) Real Property Medical malpractice (45) . Eminent domainllnverse

Construction defect (10)
Mass tort (40) Securities litigation (28)

Other PI/PDIWD (23) - condemnation (14)
Non.PI/PDIWD (Other) Tort Wrongful eviction (33)
Business torVunfair business practice (07) . 'n.: Other real property (26)
Civil rights (08)
Defamation (13) Fraud (16)

EnvironmentallToxic tort (30)
Insurance coverage claims arising from the above listed provisionally complex case types (41)

Enforcement of Judgment
Enforcement of judgment (20)

Unlawful Detainer
Commercial (31)
: Residential (32)
Drugs (38)

Intellectual propert (19)
i Professional negligence (25) Other non-Pi/PDIWD tort (35)

Miscellaneous Civil Complaint RICO (27)
Other complaint (not specified above) (42)

Judicial Review

Employment
Wrongful termination (36)

,.. .J Asset forfeiture (05) Miscellaneous Civil Petition

.! Petition re: arbitration award (11) Partnership and corporate governance (21)

1___: Writ of mandate (02) Other petition (not specifed above) (43)

2. This case___. is 1_i'~J is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the

factors requiring exceptional judicial management:
a.' Large number of separately represented parties d. Large number of witnesses
b. Extensive motion practice raising difficult or novel e. Coordination with related actions pending in one or more courts

issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court
c. . Substantial amount of docume