SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SOMEWHERE ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Harvey C. Berger (SBN POPE & BERGER 0 West "C" Street, Suite 100 San Diego, California 1 Telephone: (1-1 Facsimile: (1 - Attorneys for Plaintiff PLAINTIFF SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SOMEWHERE PLAINTIFF, v. Plaintiff, EMPLOYER, a corporation; INDIRECT EMPLOYER, a business entity form unknown; INDIVIDUAL DEFENDANT, an individual; and DOES 1 through, inclusive, Defendants. Case No. : (1 VIOLATION OF LABOR CODE 0; ( FRAUD & DECEIT; ( TORTIOUS TERMINATION IN VIOLATION OF PUBLIC POLICY; ( BREACH OF CONTRACT; ( VIOLATION OF LABOR CODE 01; AND ( VIOLATION OF LABOR CODE 1 DEMAND FOR JURY TRIAL 1 Plaintiff alleges: This action is filed in this court because the wrongful conduct complained of herein occurred within the County of Somewhere, State of California. This is the proper judicial district because the acts herein alleged occurred within this jurisdictional district.. Plaintiff (hereinafter Plaintiff is a resident of the State of California, City of Somewhere.. Plaintiff is informed and believes and thereon alleges that defendant EMPLOYER is a corporation organized and existing under the laws of the State of California and having its principal place of business in the City of Somewhere, County of Somewhere, State of California. Plaintiff is informed and believes and thereon alleges that 1

2 EMPLOYER and defendant INDIRECT EMPLOYER were Plaintiff s joint employers at all relevant times alleged herein.. Defendant, INDIRECT EMPLOYER (hereinafter INDIRECT EMPLOYER is a business entity form unknown which was the name Plaintiff was informed by defendants would be his employer.. Plaintiff is informed and believes and thereon alleges that defendant INDIVIDUAL DEFENDANT (hereinafter INDIVIDUAL DEFENDANT is the president and owner of defendant EMPLOYER and the owner and an officer of defendant INDIRECT EMPLOYER and was at all relevant times, a California resident, residing within the County of Somewhere, State of California.. Plaintiff is informed and believes and thereon alleges that there exists such a unity of interest and ownership between defendants EMPLOYER, INDIRECT EMPLOYER and INDIVIDUAL DEFENDANT that the individuality and separateness of said defendants have ceased to exist. The business affairs of said defendants at all relevant times were and are so mixed and intermingled that the same cannot reasonably be segregated, and the same are in inextricable confusion. Defendants EMPLOYER and INDIRECT EMPLOYER were and are used by defendant INDIVIDUAL DEFENDANT as mere shells and conduits for the conduct of certain of his affairs. The recognition of the separate existence of defendants EMPLOYER and INDIRECT EMPLOYER would not promote justice in that it would permit defendant INDIVIDUAL DEFENDANT to insulate himself from personal liability to Plaintiff. Accordingly, defendants EMPLOYER and INDIRECT EMPLOYER constitute the alter egos of defendant INDIVIDUAL DEFENDANT and the fiction of their separate existence must be disregarded.. Plaintiff is informed and believes, and thereupon alleges that at all times herein mentioned, defendant, INDIVIDUAL DEFENDANT and all other persons he had involvement with regarding his employment at EMPLOYER and INDIRECT EMPLOYER were the agents and employees of EMPLOYER and INDIRECT EMPLOYER and in doing the things herein alleged, were acting within the course and scope of such agency or

3 employment, and with the approval and ratification of EMPLOYER and INDIRECT EMPLOYER and each of the other defendants.. Plaintiff is informed and believes, and thereupon alleges that at all times herein mentioned, the defendants were the agents, employees and/or servants, masters or employers of the remaining defendants and in doing the things herein after alleged, were acting within the course and scope of such agency or employment, and with the approval and ratification of each of the other defendants.. The true names and capacities, whether individual, corporate, associate, or otherwise, of DOES 1 through, inclusive, are unknown to Plaintiff, who therefore sues the DOE defendants by fictitious names. Plaintiff will amend this complaint to show their true names and capacities when they have been ascertained. FIRST CAUSE OF ACTION VIOLATION OF LABOR CODE 0 (Against All Defendants. Plaintiff hereby realleges and incorporates by reference, as though set forth in full, the allegations contained in paragraphs 1 through. This cause of action is pled against defendants EMPLOYER, INDIRECT EMPLOYER, INDIVIDUAL DEFENDANT and DOES 1-, inclusive.. In or about February and April 1, by means of oral communication, defendant INDIVIDUAL DEFENDANT represented to Plaintiff that defendants would employ Plaintiff as Director of Sales for INDIRECT EMPLOYER, without limitation, as follows: a. $0, base annual salary; b. $ to $ override on every phone activated by defendants, inclusive of retail store sales and outside salespersons sales in the counties of Somewhere, Somewhere Else, and Somewhere Else All Together; c. Health insurance for Plaintiff, his wife and two ( children; d. Annual bonus of % of gross profit of the company;

4 e. % of the sale price of the business in the event the business was sold; f. Executive management position with no selling; g. Equal authority and position within the company with Someone Else; h. Full reimbursement of moving expenses from Hometown, USA to Somewhere, California; i. Expense account - Corporate American Express Card; j. Car allowance of $00-$00 per month plus gasoline expenses; and k. Written employment agreement. 1. Defendants knew that the representations were false in that from the commencement of Plaintiff s employment Plaintiff was not provided full compensation or the authority he was told he would have, defendants never made an effort to fulfill the representations, and defendants presented Plaintiff with a revised employment/compensation package shortly after his move to Somewhere, California. Defendants used the misrepresentations to induce Plaintiff to change his employment, a result defendants could not have achieved truthfully. 1. In reliance on the representations and in ignorance of the falsity thereof, Plaintiff changed his place of residence by moving with his family from Hometown, USA to Somewhere, California for the purpose of working for defendants as Director of Sales. 1. In or about April 1, Plaintiff was hired by defendants in accordance with said representations. In or about May and continuing to August 1, Plaintiff discovered said representations to be false in that Plaintiff was not provided the authority, responsibilities or compensation as represented and defendants presented Plaintiff with a revised employment/compensation package shortly after he moved to Somewhere, California. 1. As a proximate result of the representations, Plaintiff was persuaded to move from the State of Homestate to the State of California, relinquish a secure job for the purpose of working for defendants, thereby incurring travel and moving expenses for

5 himself and his family all to his damage in the sum of approximately $,0.. Plaintiff was further damaged by the loss of wages for a minimum of one year in the amount of $0, plus commissions and bonuses. 1. The aforementioned conduct of defendants was an intentional misrepresentation, deceit or concealment of a material fact known to the defendants with the intention of depriving Plaintiff of property or legal rights or otherwise causing injury, and was despicable conduct that subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff s rights so as to justify an award of exemplary and punitive damages. 1. WHEREFORE, Plaintiff requests relief as hereinafter provided. SECOND CAUSE OF ACTION FRAUD AND DECEIT (Against All Defendants 1. Plaintiff hereby realleges and incorporates by reference, as though set forth in full, the allegations contained in paragraphs 1 through 1. This cause of action is pled against defendants EMPLOYER, INDIRECT EMPLOYER, INDIVIDUAL DEFENDANT and DOES 1-, inclusive. 1. Defendants represented to Plaintiff that he would be the Director of Sales for defendants and would be compensated as outlined in paragraph herein. Said representations were false because Plaintiff never received the authority, responsibilities or full compensation as represented by defendants. Defendants used the misrepresentations to induce Plaintiff to change his employment, a result defendants could not have achieved truthfully. 0. Defendants knew said representations to be false and intended to conceal the true facts from Plaintiff to unlawfully persuade Plaintiff to move from Hometown, USA and use his skill and expertise to their benefit in setting up a new enterprise and Plaintiff s detriment by inducing Plaintiff to leave his business and secure source of income. 1. Plaintiff did not discover the fraud and deceit practiced upon him as set forth herein until he started his employment with defendants, attempted to fulfill the position and

6 responsibilities represented by the defendants, was presented with a revised employment/compensation package and thereby realized that defendants representations were false.. As a proximate result of the representations of defendants to Plaintiff as set forth herein, Plaintiff has suffered and continues to suffer the loss of wages in an amount in excess of $0,000.00, the precise amount of which will be proven at trial.. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice and in conscious disregard of Plaintiff's rights.. WHEREFORE, Plaintiff requests relief as hereinafter provided. THIRD CAUSE OF ACTION TORTIOUS TERMINATION IN VIOLATION OF PUBLIC POLICY (Against All Defendants. Plaintiff hereby realleges and incorporates by reference, as though fully set forth herein, the allegations contained in paragraphs 1 through. This cause of action is pled against defendants EMPLOYER, INDIRECT EMPLOYER, INDIVIDUAL DEFENDANT and DOES 1-, inclusive.. Labor Code 0 is a fundamental, substantial well-established public policy of the State of California.. In or about August 1, defendants violated the public policy as codified in Labor Code 0 when Plaintiff was forced to resign in light of the material misrepresentations defendants made to Plaintiff to induce him to move from Hometown, USA to Somewhere, California.. As a proximate result of the wrongful termination, Plaintiff has suffered and continues to suffer substantial losses in earnings, bonuses, deferred compensation, other employment benefits, expenses in seeking substitute employment and has caused Plaintiff to suffer and continue to suffer emotional distress, and anguish all to his damage in an amount according to proof.

7 As a further proximate result of the wrongful termination, Plaintiff has been harmed in that he has suffered the intangible loss of such employment-related benefits of continued experience and skill in the position Plaintiff held and thereafter sought. 0. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice and in conscious disregard of Plaintiff's rights. 1. WHEREFORE, Plaintiff requests relief as hereinafter provided. FOURTH CAUSE OF ACTION BREACH OF ORAL CONTRACT (Against All Defendants. Plaintiff hereby realleges and incorporates by reference, as though set forth in full, the allegations contained in paragraphs 1 through 1. This cause of action is pled against defendants EMPLOYER, INDIRECT EMPLOYER, INDIVIDUAL DEFENDANT and DOES 1-, inclusive.. Plaintiff and defendants entered into an oral agreement for Plaintiff s employment. Plaintiff was to be defendants Director of Sales with responsibilities which included without limitation, executive management of the sales force and retail stores, equal authority with Someone Else, and a written employment agreement in exchange for compensation as outlined in paragraph herein.. Plaintiff performed all conditions, covenants and promises required on his part to be performed in accordance with the terms and conditions of the agreement for employment.. In or about May 1 and continuing to August 1, defendants breached the agreement by failing to provide Plaintiff with the authority, responsibilities, compensation, and written employment agreement as agreed.. As a proximate result of defendants breach of the agreement Plaintiff has suffered damages in an amount according to proof at time of trial, but in an amount in excess of the jurisdiction of this court.

8 WHEREFORE, Plaintiff requests relief as hereinafter provided. FIFTH CAUSE OF ACTION VIOLATION OF LABOR CODE 01 (Against All Defendants. Plaintiff hereby realleges and incorporates by reference, as though fully set forth herein, the allegations contained in paragraphs 1 through. This cause of action is pled against defendants EMPLOYER, INDIRECT EMPLOYER, INDIVIDUAL DEFENDANT and DOES 1-, inclusive.. Pursuant to Labor Code 01, an employer must pay all wages owed to an employee immediately at the time of discharge, including salary, commissions and vacation. 0. Defendants terminated Plaintiff s employment on or about August, 1. At that time, defendants owed Plaintiff wages, including salary, commissions, vacation, expense reimbursements and moving expenses. 1. In violation of Labor Code 01, defendants did not pay Plaintiff all salary, commissions and vacation due and owing him upon his discharge. Although Plaintiff has demanded payment, defendants have not paid Plaintiff the amounts due and owing him.. Since Plaintiff's discharge, Plaintiff has been available and ready to receive the wages due and owing him. Plaintiff has neither refused to receive any payment nor been absent from his residence.. In addition to the salary, commissions and vacation due and owing, Plaintiff is entitled to waiting time penalties as provided in Labor Code 0.. Pursuant to Labor Code 1., Plaintiff requests the Court award reasonable attorney s fees and costs incurred by him in this action.. WHEREFORE, Plaintiff requests relief as hereinafter provided. / / / / / / / / /

9 SIXTH CAUSE OF ACTION VIOLATION OF LABOR CODE 1 (Against All Defendants. Plaintiff hereby realleges and incorporates by reference, as though fully set forth herein, the allegations contained in paragraphs 1 through. This cause of action is pled against defendants EMPLOYER, INDIRECT EMPLOYER, INDIVIDUAL DEFENDANT and DOES 1-, inclusive.. Pursuant to Labor Code 1 and 0, it is unlawful for an employer to collect or receive from an employee any part of the employees wages.. In violation of Labor Code 1 and 0, defendants deducted monies from Plaintiff s paycheck for moving expenses defendants had partially paid when it terminated Plaintiff s employment.. Pursuant to Labor Code 1., Plaintiff requests the Court award reasonable attorney s fees and costs incurred by him in this action. 0. WHEREFORE, Plaintiff requests relief as hereinafter provided. REQUEST FOR JURY TRIAL Plaintiff requests a trial by jury. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against defendants, and each of them, as follows: 1. For compensatory damages according to proof at time of trial;. For general damages according to proof at time of trial;. For exemplary and punitive damages;. For penalties pursuant to Labor Code, or in the alternative, punitive damages to be assessed against defendants;. For penalties pursuant to Labor Code 0;. For reasonable attorney s fees and costs pursuant to Labor Code 1.;. For prejudgment interest on all amounts claimed; and

10 . For any other and further relief that the court considers proper. POPE & BERGER Dated: August, 001 By: Harvey C. Berger Attorneys for Plaintiff