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1 BLUMENTHAL, NORDREHAUG & BHOWMIK

Norman B. Blumenthal (State Bar #068687)


2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 2255 Calle Clara
La Jolla, CA 92037
4 Telephone: (858)551-1223
Facsimile: (858) 551-1232
5 Website: www.bamlawca.com
6 Attorneys for Plaintiff
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8
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF ORANGE
12
13 JEAN SANDHU, an individual, on CASE No. ______________________
14 behalf of herself, and on behalf of all
persons similarly situated, CLASS ACTION COMPLAINT FOR:
15 1. UNFAIR COMPETITION IN
VIOLATION OF CAL. BUS. & PROF.
16 Plaintiff, CODE § 17200, et seq.;
2. FAILURE TO PAY OVERTIME
17 vs. COMPENSATION IN VIOLATION OF
CAL. LAB. CODE §§ 510, 515.5, 551, 552,
18 SUMTOTAL SYSTEMS, INC., a 1194 AND 1198, et seq.; and,
California Corporation; and Does 1 3. FAILURE TO PROVIDE ACCURATE
19 through 50, ITEMIZED STATEMENTS IN
VIOLATION OF CAL. LAB. CODE § 226.
20 DEMAND FOR A JURY TRIAL
21 Defendant.

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COMPLAINT
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1 Plaintiff Jean Sandhu ("PLAINTIFF"), on behalf of herself and all other similarly
2 situated current and former employees, allege on information and belief, except for her own acts
3 and knowledge, the following:
4
5 THE PARTIES
6 1. SumTotal Systems, Inc. develops talent management software solutions that
7 automate and integrate learning, performance and compensation to enable organizations to
8 more effectively drive business strategy. As one of the pioneers in Human Resource
9 software, SumTotal Systems, Inc. hereinafter also referred to as "SUMTOTAL" or
10 "DEFENDANT" provides full employee lifecycle management solutions in order to
11 strengthen and develop employee skills. SUMTOTAL offers implementation, hosting,
12 training, consulting and professional services to the healthcare, manufacturing, finance,
13 retail, government and education sectors. SUMTOTAL has more than 1,800 customers and
14 25 million users worldwide and has increased the performance of some of the world’s
15 largest organizations. SumTotal Systems, Inc. was originally founded in 1984 and formally
16 conducted business as "Click2learn, Inc." The company changed its name in March 2004
17 and is based and headquartered in Mountain View, California.
18 2. To achieve maximum profitability, SUMTOTAL employs a fleet of
19 collectors whose primary job duty is ensuring the timely collection of DEFENDANT’s
20 accounts receivables. These employees are primarily engaged in a core, day-to-day business
21 activity of SUMTOTAL to ensure the timely collection of DEFENDANT’s accounts
22 receivables. As part of their job duties, the Collectors perform credit checks on customers
23 and research issues raised by customers related to their accounts. These employees also
24 assemble account information into weekly reports that allows management to follow-up with
25 additional work or make decisions on the reported accounts. As a result, these employees
26 did not participate in policymaking or alter the general operation of the business. These
27 employees have the job titles of "Credit/Collections Analyst" and "Accounts Receivable
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COMPLAINT
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1 Associate." Collectively, all employees in these positions, with or without a "I, II or III"
2 descriptor, perform these same job duties and are referred to herein as "Collectors." This
3 Action is brought on behalf of the PLAINTIFF and all those employees of DEFENDANT
4 (the "CALIFORNIA CLASS") in California who worked for DEFENDANT as a Collector
5 during the CLASS PERIOD ("CLASS" or "Class Members").
6 3. Plaintiff Jean Sandhu ("PLAINTIFF") was employed by DEFENDANT in
7 California as a Credit/Collections Analyst I, II, and III from October 2005 to September
8 2010.
9 4. The position of Credit/Collections Analyst was represented by DEFENDANT
10 to the PLAINTIFF and the other as an exempt and salaried position.
11 5. For DEFENDANT’s business, the Class Members functioned as working
12 members in DEFENDANT’s finance department. As defined by DEFENDANT’s
13 comprehensive corporate policies and procedures, the primary job duty of the Class
14 Members employed by SUMTOTAL was and is to ensure the timely collection of
15 DEFENDANT’s accounts receivables in accordance with DEFENDANT’s established
16 specific procedures and protocols which govern and control every aspect of the work
17 performed by the Collectors. These standardized procedures mirror the realities of the
18 workplace evidencing a uniformity of work among the Collectors and negate any exercise of
19 independent judgment and discretion as to any matter of significance.
20 6. The work schedule for the Collectors was set by DEFENDANT. Generally,
21 the Class Members work ten (10) to fourteen (14) hours each workday and twenty (20) to
22 thirty (30) hours of overtime each workweek.
23 7. DEFENDANT has not established an alternative workweek election for the
24 Collectors for ten (10) to fourteen (14) hour workdays.
25 8. PLAINTIFF and the other Collectors were not provided with overtime
26 compensation and other benefits required by law as a result of being classified as "exempt"
27 by DEFENDANT.
28
COMPLAINT
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1 9. PLAINTIFF bring this Class Action on behalf of herself and a California
2 Class consisting of all individuals who are or previously were employed by Defendant
3 SumTotal Systems, Inc. as a Collector in California (the "CALIFORNIA CLASS") during
4 the period beginning on the date four years before the filing of this Action and ending on the
5 date as determined by the Court (the "CALIFORNIA CLASS PERIOD").
6 10. As a matter of company policy, practice, and procedure, DEFENDANT
7 has unlawfully, unfairly and/or deceptively classified every Collector as exempt based on
8 job title alone, failed to pay the required overtime compensation and otherwise failed to
9 comply with all applicable labor laws with respect to these Collectors.
10 11. The true names and capacities, whether individual, corporate, subsidiary,
11 partnership, associate or otherwise of DEFENDANT Does 1 through 50, inclusive, are
12 presently unknown to the PLAINTIFF who therefore sues these defendants by such fictitious
13 names pursuant to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this
14 Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when
15 they are ascertained. PLAINTIFF is informed and believes, and based upon that information
16 and belief alleges, that the defendants named in this Complaint, including Does 1 through
17 50, inclusive, are responsible in some manner for one or more of the events and happenings
18 that proximately caused the injuries and damages hereinafter alleged.
19 12. The agents, servants, and/or employees of DEFENDANT and each of
20 them acting on behalf of DEFENDANT acted within the course and scope of his, her or its
21 authority as the agent, servant, and/or employee of DEFENDANT, and personally
22 participated in the conduct alleged herein on behalf of DEFENDANT with respect to the
23 conduct alleged herein. Consequently, DEFENDANT is jointly and severally liable to the
24 PLAINTIFF and the other members of the CALIFORNIA CLASS, for the loss sustained as
25 a proximate result of the conduct of DEFENDANT’s agents, servants, and/or employees.
26
27 THE CONDUCT
28 13. The primary job duty required of the Collectors as defined by

COMPLAINT
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1 DEFENDANT is executed by the Collectors through the performance of non-exempt labor
2 within a defined skill set.
3 14. Although the PLAINTIFF and the other Collectors primarily performed
4 non-exempt labor, DEFENDANT instituted a blanket classification policy, practice and
5 procedure by which all of these Collectors were classified as exempt from overtime
6 compensation, meal breaks and rest breaks. By reason of this uniform exemption practice,
7 policy and procedure applicable to the PLAINTIFF and the other Collectors who performed
8 this non-exempt labor, DEFENDANT committed acts of unfair competition in violation of
9 the California Unfair Competition law, Cal. Bus. & Prof. Code § 17200 (the "UCL"), by
10 engaging in a company-wide policy, practice and procedure which failed to properly classify
11 the PLAINTIFF and the other Collectors and thereby failed to pay them overtime wages for
12 documented overtime hours worked and provide them with meal and rest breaks. The
13 proper classification of these employees is DEFENDANT’s burden. As a result of
14 DEFENDANT’s intentional disregard of the obligation to meet this burden, DEFENDANT
15 failed to pay all required overtime compensation for work performed by the members of the
16 CALIFORNIA CLASS and violated the California Labor Code and regulations promulgated
17 thereunder as herein alleged. In addition, DEFENDANT failed to provide all of the legally
18 required off-duty meal and rest breaks to the PLAINTIFF and the other Collectors as
19 required by the applicable Wage Order and Labor Code.
20 15. DEFENDANT, as a matter of law, has the burden of proving that (a)
21 employees are properly classified as exempt and that (b) DEFENDANT otherwise complies
22 with applicable laws. Other than the initial classification of the PLAINTIFF and the other
23 Collectors as exempt from being paid overtime based on job title alone, DEFENDANT had
24 no business policy, practice, or procedure to ensure that the PLAINTIFF and the other
25 Collectors were properly classified as exempt, and in fact, as a matter of corporate policy
26 erroneously and unilaterally classified all the Class Members as exempt based on job title
27 alone.
28 16. During their employment with DEFENDANT, the PLAINTIFF and the

COMPLAINT
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1 other Collectors, primarily performed non-exempt job duties, but were nevertheless
2 classified by DEFENDANT as exempt from overtime pay and worked more than eight (8)
3 hours a day, forty (40) hours a week, and/or on the seventh (7th) consecutive day of a
4 workweek.
5 17. PLAINTIFF and the other Collectors employed by DEFENDANT
6 were not primarily engaged in work of a type that was or now is directly related to the
7 management or general business operations of the employer’s customers, when giving these
8 words a fair but narrow construction. PLAINTIFF and the other Collectors employed by
9 DEFENDANT were also not primarily engaged in work of a type that was or now is
10 performed at the level of the policy or management of DEFENDANT. PLAINTIFF and the
11 other Collectors employed by DEFENDANT were also not primarily engaged in work
12 requiring knowledge of an advanced type in a field or science or learning customarily
13 acquired by a prolonged course of specialized intellectual instruction and study, but rather
14 their work primarily involves the performance of routine mental, manual, and/or physical
15 processes. PLAINTIFF and the other Collectors employed by DEFENDANT were also not
16 primarily engaged in work that is predominantly intellectual and varied in character, but
17 rather is routine mental, manual, mechanical, and/or physical work that is of such character
18 that the output produced or the result accomplished can be standardized in relation to a given
19 period of time. The work of a Collector of DEFENDANT was work wherein the
20 PLAINTIFF and the members of the CALIFORNIA CLASS were primarily engaged in a
21 day-to-day business activity of SUMTOTAL of ensuring the timely collection of
22 DEFENDANT’s accounts receivables in strict accordance with the protocols, policies and
23 operations established by DEFENDANT.
24 18. The fact that the work of these employees may have involved work using a
25 specialized skill set or technical abilities in a defined technical area does not mean that the
26 PLAINTIFF or the other Collectors employed by DEFENDANT are exempt from overtime
27 wages. Indeed, the exercise of discretion and independent judgment must be more than the
28 use of a highly technical skill set described in a manual or other sources. The work that the

COMPLAINT
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1 PLAINTIFF and the other Collectors employed by DEFENDANT was and are primarily
2 engaged in performing day-to-day collection activities which is work that is required to be
3 performed as part of the day-to-day-business of DEFENDANT. As a result, the
4 PLAINTIFF and the other Collectors employed by DEFENDANT were primarily engaged
5 in work that falls on the production/non-exempt administration side of the
6 administrative/production worker dichotomy and therefore should have been properly
7 classified as non-exempt employees.
8 19. PLAINTIFF and all members of the CALIFORNIA CLASS are and were
9 uniformly classified and treated by DEFENDANT as exempt at the time of hire and
10 thereafter, DEFENDANT failed to take the proper steps to determine whether the
11 PLAINTIFF, and the members of the CALIFORNIA CLASS, were properly classified under
12 the applicable Industrial Welfare Commission Wage Order (Wage Order 1-2001 and/or
13 Wage Order 4-2001) and Cal. Lab. Code §§ 510 et seq. as exempt from applicable
14 California labor laws. Since DEFENDANT affirmatively and wilfully misclassified the
15 PLAINTIFF and the members of the CALIFORNIA CLASS in compliance with California
16 labor laws, DEFENDANT’s practices violated and continue to violate California law. In
17 addition, DEFENDANT acted deceptively by falsely and fraudulently telling the
18 PLAINTIFF and each member of the CALIFORNIA CLASS that they were exempt from
19 overtime pay when DEFENDANT knew or should have known that this statement was false
20 and not based on known facts. DEFENDANT also acted unfairly by violating the California
21 labor laws, and as a result of this policy and practice, DEFENDANT also violated the UCL.
22 In doing so, DEFENDANT cheated the competition by paying the CALIFORNIA CLASS
23 less than the amount competitors paid who complied with the law and cheated the
24 CALIFORNIA CLASS by not paying them in accordance with California law.
25 20. DEFENDANT also failed to provide and still fails to provide the PLAINTIFF
26 and the other Collectors with a wage statement in writing that accurately sets forth gross
27 wages earned, all applicable hourly rates in effect during the pay period and the
28 corresponding number of hours worked at each hourly rate by the PLAINTIFF and the other

COMPLAINT
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1 Collectors. This conduct violates California Labor Code § 226. The pay stub also does not
2 accurately display anywhere the PLAINTIFF’s and the other Collectors’ overtime hours and
3 applicable rates of overtime pay for the pay period.
4 21. By reason of this uniform conduct applicable to the PLAINTIFF and all the
5 CALIFORNIA CLASS members, DEFENDANT committed acts of unfair competition in
6 violation of the California Unfair Competition law, Cal. Bus. & Prof. Code § 17200 (the
7 "UCL"), by engaging in a company-wide policy and procedure which failed to correctly
8 classify the PLAINTIFF and the CALIFORNIA CLASS of Collectors as non-exempt. The
9 proper classification of these employees is DEFENDANT’s burden. As a result of
10 DEFENDANT’s intentional disregard of the obligation to meet this burden, DEFENDANT
11 failed to properly calculate and/or pay all required overtime compensation for work
12 performed by the members of the CALIFORNIA CLASS and violated the applicable Wage
13 Order, the California Labor Code and the regulations promulgated thereunder as herein
14 alleged.
15
16 THE UCL REMEDIES
17 22. As a result of DEFENDANT’s UCL violation, the PLAINTIFF, on behalf
18 of herself and the CALIFORNIA CLASS, seeks restitutionary disgorgement of
19 DEFENDANT’s ill-gotten gains into a fluid fund in order to provide restitution of all the
20 money that DEFENDANT was required by law to pay, but failed to pay, to the PLAINTIFF
21 and all the other CALIFORNIA CLASS members. PLAINTIFF also seeks all other relief
22 available to her and the other Collectors located in California under California law.
23 PLAINTIFF also seeks declaratory relief finding that the employment practices and policies
24 of DEFENDANT violate California law.
25
26 THE CALIFORNIA CLASS
27 23. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and
28 Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the

COMPLAINT
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1 "UCL") as a Class Action, pursuant to California Code of Civil Procedure, Section 382, on
2 behalf of a California Class, defined as individuals who are or previously were employed by
3 Defendant SumTotal Systems, Inc. as a Collector as hereinabove defined in California
4 during the period beginning on the date four years before the filing of this Action and ending
5 on the date as determined by the Court ("CALIFORNIA CLASS").
6 24. To the extent equitable tolling operates to toll claims by the CALIFORNIA
7 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted
8 accordingly.
9 25. DEFENDANT, as a matter of corporate policy, practice and procedure,
10 and in violation of the applicable Labor Code, Industrial Welfare Commission ("IWC")
11 Wage Order Requirements, and the applicable provisions of California law, intentionally,
12 knowingly, and wilfully, engaged in a practice whereby DEFENDANT unfairly, unlawfully,
13 and deceptively instituted a practice to ensure that the employees employed in a Collector
14 position were not properly classified as non-exempt from the requirements of California
15 Labor Code §§ 510, et seq.
16 26. DEFENDANT has the burden of proof that each and every employee is
17 properly classified as exempt from the requirements of the Cal. Lab. Code §§ 510, et seq.
18 DEFENDANT, however, as a matter of uniform and systematic policy and procedure had in
19 place during the CALIFORNIA CLASS PERIOD and still has in place a policy and practice
20 that misclassifies the CALIFORNIA CLASS members as exempt. DEFENDANT’s uniform
21 policy and practice in place at all times during the CALIFORNIA CLASS PERIOD and
22 currently in place is to systematically classify each and every CALIFORNIA CLASS
23 member as exempt from the requirements of the California Labor Code §§ 510, et seq. This
24 common business practice applicable to each and every CALIFORNIA CLASS member can
25 be adjudicated on a class-wide basis as unlawful, unfair, and/or deceptive under Cal.
26 Business & Professions Code §17200, et seq. (the "UCL") as causation, damages, and
27 reliance are not elements of this claim.
28 27. At no time before, during or after the PLAINTIFF’s employment with

COMPLAINT
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1 DEFENDANT was any Collector reclassified as non-exempt from the applicable
2 requirements of California Labor Code §§ 510, et seq. after each CALIFORNIA CLASS
3 member was initially, uniformly, and systematically classified as exempt upon being hired.
4 28. Any individual declarations of any employees offered at this time purporting
5 to indicate that one or more Collector may have been properly classified is of no force or
6 affect absent contemporaneous evidence that DEFENDANT’s uniform system did not
7 misclassify the PLAINTIFF and the other Collectors as exempt pursuant to Cal. Lab. Code
8 §§ 510, et seq. Absent proof of such a contemporaneous system, DEFENDANT’s business
9 practice is uniformly unlawful, unfair and/or deceptive under the UCL and may be so
10 adjudicated on a class-wide basis. As a result of the UCL violations, the PLAINTIFF and
11 the CALIFORNIA CLASS members are entitled to compel DEFENDANT to provide
12 restitutionary disgorgement of their ill-gotten gains into a fluid fund in order to restitute
13 these funds to the PLAINTIFF and the CALIFORNIA CLASS members according to proof.
14 29. The CALIFORNIA CLASS is so numerous that joinder of all Collectors is
15 impracticable.
16 30. Common questions of law and fact exist as to members of the CALIFORNIA
17 CLASS, including, but not limited, to the following:
18 (a) Violating the California Unfair Competition laws, Cal. Bus. & Prof.
19 Code § 17200, et seq. (the "UCL"), by unlawfully, unfairly and/or
20 deceptively having in place company policies, practices and procedures
21 that uniformly misclassified the PLAINTIFF and the members of the
22 CALIFORNIA CLASS as exempt;
23 (b) Committing an act of unfair competition in violation of the UCL, by
24 unlawfully, unfairly, and/or deceptively failing to have in place a
25 company policy, practice and procedure that accurately determined the
26 amount of working time spent by the PLAINTIFF and the members of
27 the CALIFORNIA CLASS performing non-exempt labor;
28 (c) Committing an act of unfair competition in violation of the UCL, by

COMPLAINT
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1 having in place a company policy, practice and procedure that failed to
2 reclassify as non-exempt those members of the CALIFORNIA CLASS
3 whose actual job duties are primarily comprised of non-exempt job
4 functions;
5 (d) Committing an act of unfair competition in violation of the UCL, by
6 violating Cal. Lab. Code §§510, et seq. by failing to pay the correct
7 overtime pay to the PLAINTIFF and the members of the
8 CALIFORNIA CLASS who were improperly classified as exempt, and
9 retaining the unpaid overtime to the benefit of DEFENDANT;
10 (e) Committing an act of unfair competition in violation of the UCL, by
11 failing to provide mandatory meal and/or rest periods to the
12 PLAINTIFF and the Class Members; and,
13 (f) Committing an act of unfair competition in violation of the UCL, by
14 violating Cal. Lab. Code § 226 by failing to provide the PLAINTIFF
15 and the members of the CALIFORNIA CLASS with an accurate
16 itemized statement in writing showing the gross wages earned, the net
17 wages earned, all applicable hourly rates in effect during the pay period
18 and the corresponding number of hours worked at each hourly rate by
19 the employee.
20 31. This Class Action meets the statutory prerequisites for the maintenance of a
21 Class Action as set forth in California Code of Civil Procedure, Section 382, in that:
22 (a) The persons who comprise the CALIFORNIA CLASS are so numerous
23 that the joinder of all such persons is impracticable and the disposition
24 of their claims as a class will benefit the parties and the Court;
25 (b) Nearly all factual, legal, statutory, and declaratory relief issues that are
26 raised in this Complaint are common to the CALIFORNIA CLASS will
27 apply uniformly to every member of the CALIFORNIA CLASS;
28 (c) The claims of the representative PLAINTIFF are typical of the claims
COMPLAINT
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1 of each member of the CALIFORNIA CLASS. PLAINTIFF, like all
2 the other members of the CALIFORNIA CLASS, was initially
3 classified as exempt upon hiring based on the defined corporate policies
4 and practices and labored under DEFENDANT’s systematic procedure
5 that failed to properly classify the PLAINTIFF and the members of the
6 CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a
7 result of DEFENDANT’s employment practices. PLAINTIFF and the
8 members of the CALIFORNIA CLASS were and are similarly or
9 identically harmed by the same unlawful, deceptive, unfair and
10 pervasive pattern of misconduct engaged in by DEFENDANT by
11 deceptively advising all Collectors that they were exempt from
12 overtime wages based on the defined corporate policies and practices,
13 and unfairly failing to pay overtime to these employees who were
14 improperly classified as exempt.
15 (d) The representative PLAINTIFF will fairly and adequately represent and
16 protect the interest of the CALIFORNIA CLASS, and have retained
17 counsel who are competent and experienced in Class Action litigation.
18 There are no material conflicts between the claims of the representative
19 PLAINTIFF and the members of the CALIFORNIA CLASS that would
20 make class certification inappropriate. Counsel for the CALIFORNIA
21 CLASS will vigorously assert the claims of all employees in the
22 CALIFORNIA CLASS.
23 32. In addition to meeting the statutory prerequisites to a Class Action, this Action
24 is properly maintained as a Class Action pursuant to California Code of Civil Procedure,
25 Section 382, in that:
26 (a) Without class certification and determination of declaratory, statutory
27 and other legal questions within the class format, prosecution of
28 separate actions by individual members of the CALIFORNIA CLASS
COMPLAINT
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1 will create the risk of:
2 1) Inconsistent or varying adjudications with respect to individual
3 members of the CALIFORNIA CLASS which would establish
4 incompatible standards of conduct for the parties opposing the
5 CALIFORNIA CLASS; and/or,
6 2) Adjudication with respect to individual members of the
7 CALIFORNIA CLASS which would as a practical matter be
8 dispositive of interests of the other members not party to the
9 adjudication or substantially impair or impede their ability to
10 protect their interests.
11 (b) The parties opposing the CALIFORNIA CLASS have acted or refused
12 to act on grounds generally applicable to the CALIFORNIA CLASS,
13 making appropriate class-wide relief with respect to the CALIFORNIA
14 CLASS as a whole in that DEFENDANT uniformly classified and
15 treated the Collectors as exempt and, thereafter, uniformly failed to take
16 proper steps to determine whether the Collectors were properly
17 classified as exempt, and thereby denied these employees overtime
18 wages as required by law;
19 1) With respect to the First Cause of Action, the final relief on
20 behalf of the CALIFORNIA CLASS sought does not relate
21 exclusively to restitution because through this claim the
22 PLAINTIFF seeks declaratory relief holding that
23 DEFENDANT’s policy and practices constitute unfair
24 competition, along with incidental equitable relief as may be
25 necessary to remedy the conduct declared to constitute unfair
26 competition;
27 (c) Common questions of law and fact exist as to the members of the
28 CALIFORNIA CLASS, with respect to the practices and violations of
COMPLAINT
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1 California law as listed above, and predominate over any question
2 affecting only individual members, and a Class Action is superior to
3 other available methods for the fair and efficient adjudication of the
4 controversy, including consideration of:
5 1) The interests of the members of the CALIFORNIA CLASS in
6 individually controlling the prosecution or defense of separate
7 actions in that the substantial expense of individual actions will
8 be avoided to recover the relatively small amount of economic
9 losses sustained by the individual CALIFORNIA CLASS
10 members when compared to the substantial expense and burden
11 of individual prosecution of this litigation;
12 2) Class certification will obviate the need for unduly duplicative
13 litigation that would create the risk of:
14 A. Inconsistent or varying adjudications with respect to
15 individual members of the CALIFORNIA CLASS, which
16 would establish incompatible standards of conduct for
17 DEFENDANT; and/or,
18 B. Adjudications with respect to individual members of the
19 CALIFORNIA CLASS would as a practical matter be
20 dispositive of the interests of the other members not
21 parties to the adjudication or substantially impair or
22 impede their ability to protect their interests;
23 3) In the context of wage litigation because as a practical matter a
24 substantial number of individual class members will avoid
25 asserting their legal rights out of fear of retaliation by
26 DEFENDANT, which may adversely affect an individual’s job
27 with DEFENDANT or with a subsequent employer, the Class
28 Action is the only means to assert their claims through a
COMPLAINT
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1 representative; and,
2 4) A Class Action is superior to other available methods for the fair
3 and efficient adjudication of this litigation because class
4 treatment will obviate the need for unduly and unnecessary
5 duplicative litigation that is likely to result in the absence of
6 certification of this Action pursuant to California Code of Civil
7 Procedure, Section 382.
8 33. This Court should permit this Action to be maintained as a Class Action
9 pursuant to California Code of Civil Procedure, Section 382, because:
10 (a) The questions of law and fact common to the CALIFORNIA CLASS
11 predominate over any question affecting only individual members
12 because DEFENDANT’s employment practices were uniform and
13 systematically applied with respect to the CALIFORNIA CLASS;
14 (b) A Class Action is superior to any other available method for the fair
15 and efficient adjudication of the claims of the members of the
16 CALIFORNIA CLASS because in the context of employment litigation
17 a substantial number of individual Class members will avoid asserting
18 their rights individually out of fear of retaliation or adverse impact on
19 their employment;
20 (c) The members of the CALIFORNIA CLASS are so numerous that it is
21 impractical to bring all members of the CALIFORNIA CLASS before
22 the Court;
23 (d) PLAINTIFF, and the other CALIFORNIA CLASS members, will not
24 be able to obtain effective and economic legal redress unless the Action
25 is maintained as a Class Action;
26 (e) There is a community of interest in obtaining appropriate legal and
27 equitable relief for the acts of unfair competition, statutory violations
28 and other improprieties, and in obtaining adequate compensation for the
COMPLAINT
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1 injuries which DEFENDANT’s actions have inflicted upon the
2 CALIFORNIA CLASS;
3 (f) There is a community of interest in ensuring that the combined assets of
4 DEFENDANT are sufficient to adequately compensate the members of
5 the CALIFORNIA CLASS for the injuries sustained;
6 (g) DEFENDANT had acted or refused to act on grounds generally
7 applicable to the CALIFORNIA CLASS, thereby making final class-
8 wide relief appropriate with respect to the CALIFORNIA CLASS as a
9 whole;
10 (h) The members of the CALIFORNIA CLASS are readily ascertainable
11 from the business records of DEFENDANT. The CALIFORNIA
12 CLASS consists of all DEFENDANT’s Collectors employed in
13 California during the CALIFORNIA CLASS PERIOD; and,
14 (i) Class treatment provides manageable judicial treatment calculated to
15 bring a efficient and rapid conclusion to all litigation of all wage and
16 hour related claims arising out of the conduct of DEFENDANT as to
17 the members of the CALIFORNIA CLASS.
18 34. DEFENDANT maintains records from which the Court can ascertain and
19 identify by name and job title, each of DEFENDANT’s employees who have been
20 systematically, intentionally and uniformly subjected to DEFENDANT’s corporate policy,
21 practices and procedures as herein alleged. PLAINTIFF will seek leave to amend the
22 complaint to include any additional job titles of similarly situated employees when they have
23 been identified.
24
25 THE CALIFORNIA LABOR SUB-CLASS
26 35. PLAINTIFF further brings the Second and Third Causes of Action on
27 behalf of a sub-class which consists of all members of the CALIFORNIA CLASS who were
28 employed by DEFENDANT during the period beginning on the date three (3) years prior to
COMPLAINT
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1 the filing of the Action and ending on the date as determined by the Court (the
2 "CALIFORNIA LABOR SUB-CLASS PERIOD"), who performed work in excess of eight
3 (8) hours in one day and/or forty (40) hours in one week and/or hours on the seventh (7th)
4 consecutive day of a workweek and did not receive overtime compensation (the
5 "CALIFORNIA LABOR SUB-CLASS") pursuant to California Code of Civil Procedure,
6 Section 382.
7 36. DEFENDANT, as a matter of corporate policy, practice and procedure,
8 and in violation of the applicable California Labor Code ("Labor Code"), and Industrial
9 Welfare Commission ("IWC") Wage Order Requirements intentionally, knowingly, wilfully,
10 and systematically misclassified the PLAINTIFF and the other members of the
11 CALIFORNIA CLASS and the CALIFORNIA LABOR SUB-CLASS as exempt from
12 overtime wages and other labor laws based on DEFENDANT’s comprehensive policies and
13 procedures in order to avoid the payment of overtime wages by misclassifying their
14 positions as exempt from overtime wages and other labor laws. To the extent equitable
15 tolling operates to toll claims by the CALIFORNIA LABOR SUB-CLASS against
16 DEFENDANT, the CLASS PERIOD should be adjusted accordingly.
17 37. DEFENDANT has intentionally and deliberately created job levels and job
18 titles such as "Credit/Collections Analyst" and "Accounts Receivable Associate," often with
19 additional designations of "I, I or III." These titles were distributed in order to create the
20 superficial appearance of a number of unique jobs, when in fact, these jobs are substantially
21 similar and can be easily grouped together for the purpose of determining whether they were
22 all misclassified. One of DEFENDANT’s purposes in creating and maintaining this multi-
23 level job classification scheme is to create an artificial barrier to discovery and class
24 certification for all employees similarly misclassified as exempt. DEFENDANT has
25 uniformly misclassified these CALIFORNIA LABOR SUB-CLASS members as exempt and
26 denied them overtime wages and other benefits to which non-exempt employees are entitled
27 in order to unfairly cheat the competition and unlawfully profit.
28 38. DEFENDANT maintains records from which the Court can ascertain and
COMPLAINT
-17-
1 identify by job title each of DEFENDANT’s employees who as CALIFORNIA LABOR
2 SUB-CLASS members have been systematically, intentionally and uniformly misclassified
3 as exempt as a matter of DEFENDANT’s corporate policy, practices and procedures.
4 PLAINTIFF will seek leave to amend the complaint to include these additional job titles
5 when they have been identified.
6 39. The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder of all
7 members is impracticable.
8 40. Common questions of law and fact exist as to members of the CALIFORNIA
9 LABOR SUB-CLASS, including, but not limited, to the following:
10 (a) Whether DEFENDANT unlawfully failed to pay overtime
11 compensation to members of the CALIFORNIA LABOR SUB-CLASS
12 in violation of the California Labor Code and California regulations and
13 the applicable California Wage Order;
14 (b) Whether the members of the CALIFORNIA LABOR SUB-CLASS are
15 non-exempt employees entitled to overtime compensation for overtime
16 hours worked under the overtime pay requirements of California law;
17 (c) Whether DEFENDANT’s policy and practice of classifying the
18 CALIFORNIA LABOR SUB-CLASS members as exempt from
19 overtime compensation and failing to pay the CALIFORNIA LABOR
20 SUB-CLASS members overtime violate applicable provisions of
21 California law;
22 (d) Whether DEFENDANT unlawfully failed to keep and furnish
23 CALIFORNIA LABOR SUB-CLASS members with accurate records
24 of overtime hours worked;
25 (e) Whether DEFENDANT’s policy and practice of failing to pay members
26 of the CALIFORNIA LABOR SUB-CLASS all wages when due within
27 the time required by law after their employment ended violates
28 California law; and,
COMPLAINT
-18-
1 (f) The proper measure of damages and penalties owed to the members of
2 the CALIFORNIA LABOR SUB-CLASS.
3 41. DEFENDANT, as a matter of corporate policy, practice and procedure,
4 erroneously classified all Collectors as exempt from overtime wages and other labor laws.
5 All Collectors, including the PLAINTIFF, performed the same primary functions and were
6 paid by DEFENDANT according to uniform and systematic company procedures, which, as
7 alleged herein above, failed to correctly pay overtime compensation. This business practice
8 was uniformly applied to each and every member of the CALIFORNIA LABOR SUB-
9 CLASS, and therefore, the propriety of this conduct can be adjudicated on a class-wide
10 basis.
11 42. DEFENDANT violated the rights of the CALIFORNIA LABOR SUB-CLASS
12 under California law by:
13 (a) Violating Cal. Lab. Code §§ 510, et seq., by misclassifying and thereby
14 failing to pay the PLAINTIFF and the members of the CALIFORNIA
15 LABOR SUB-CLASS the correct overtime pay for a workday longer
16 than eight (8) hours, a workweek longer than forty (40) hours, and/or all
17 hours worked on the seventh (7th) consecutive day of a workweek for
18 which DEFENDANT is liable pursuant to Cal. Lab. Code § 1194;
19 (b) Violating Cal. Lab. Code §§ 201, 202 and/or 203, which provides that
20 when an employee is discharged or quits from employment, the
21 employer must pay the employee all wages due without abatement, by
22 failing to tender full payment and/or restitution of wages owed or in the
23 manner required by California law to the members of the
24 CALIFORNIA LABOR SUB-CLASS who have terminated their
25 employment;
26 (c) Violating Cal. Lab. Code § 226, by failing to provide the PLAINTIFF
27 and the members of the CALIFORNIA LABOR SUB-CLASS who
28 were improperly classified as exempt with an accurate itemized
COMPLAINT
-19-
1 statement in writing showing the gross wages earned, the net wages
2 earned, all applicable hourly rates in effect during the pay period and
3 the corresponding number of hours worked at each hourly rate by the
4 employee.
5 43. This Class Action meets the statutory prerequisites for the maintenance of a
6 Class Action as set forth in California Code of Civil Procedure, Section 382, in that:
7 (a) The persons who comprise the CALIFORNIA LABOR SUB-CLASS
8 exceed are so numerous that the joinder of all such persons is
9 impracticable and the disposition of their claims as a class will benefit
10 the parties and the Court;
11 (b) Nearly all factual, legal, statutory, and declaratory relief issues that are
12 raised in this Complaint are common to the CALIFORNIA LABOR
13 SUB-CLASS and will apply uniformly to every member of the
14 CALIFORNIA LABOR SUB-CLASS;
15 (c) The claims of the representative PLAINTIFF are typical of the claims
16 of each member of the CALIFORNIA LABOR SUB-CLASS.
17 PLAINTIFF, like all the other members of the CALIFORNIA LABOR
18 SUB-CLASS, was improperly classified as exempt and denied overtime
19 pay as a result of DEFENDANT’s systematic classification practices.
20 PLAINTIFF and all the other members of the CALIFORNIA LABOR
21 SUB-CLASS sustained economic injuries arising from DEFENDANT’s
22 violations of the laws of California; and,
23 (d) The representative PLAINTIFF will fairly and adequately represent and
24 protect the interest of the CALIFORNIA LABOR SUB-CLASS, and
25 has retained counsel who are competent and experienced in Class
26 Action litigation. There are no material conflicts between the claims of
27 the representative PLAINTIFF and the members of the CALIFORNIA
28 LABOR SUB-CLASS that would make class certification
COMPLAINT
-20-
1 inappropriate. Counsel for the CALIFORNIA LABOR SUB-CLASS
2 will vigorously assert the claims of all Class Members.
3 44. In addition to meeting the statutory prerequisites to a Class Action, this Action
4 is properly maintained as a Class Action pursuant to California Code of Civil Procedure,
5 Section 382, in that:
6 (a) Without class certification and determination of declaratory, statutory
7 and other legal questions within the class format, prosecution of
8 separate actions by individual members of the CALIFORNIA LABOR
9 SUB-CLASS will create the risk of:
10 1) Inconsistent or varying adjudications with respect to individual
11 members of the CALIFORNIA LABOR SUB-CLASS which
12 would establish incompatible standards of conduct for the parties
13 opposing the CALIFORNIA LABOR SUB-CLASS; or,
14 2) Adjudication with respect to individual members of the
15 CALIFORNIA LABOR SUB-CLASS which would as a
16 practical matter be dispositive of interests of the other members
17 not party to the adjudication or substantially impair or impede
18 their ability to protect their interests.
19 (b) The parties opposing the CALIFORNIA LABOR SUB-CLASS have
20 acted or refused to act on grounds generally applicable to the
21 CALIFORNIA LABOR SUB-CLASS, making appropriate class-wide
22 relief with respect to the CALIFORNIA LABOR SUB-CLASS as a
23 whole in that DEFENDANT uniformly classified and treated the
24 Collectors as exempt and, thereafter, uniformly failed to take proper
25 steps to determine whether the Collectors were properly classified as
26 exempt, and thereby denied these employees overtime wages as
27 required by law;
28 (c) Common questions of law and fact predominate as to the members of
COMPLAINT
-21-
1 the CALIFORNIA LABOR SUB-CLASS, with respect to the practices
2 and violations of California law as listed above, and predominate over
3 any question affecting only individual members, and a Class Action is
4 superior to other available methods for the fair and efficient
5 adjudication of the controversy, including consideration of:
6 1) The interests of the members of the CALIFORNIA LABOR
7 SUB-CLASS in individually controlling the prosecution or
8 defense of separate actions in that the substantial expense of
9 individual actions will be avoided to recover the relatively small
10 amount of economic losses sustained by the individual
11 CALIFORNIA LABOR SUB-CLASS members when compared
12 to the substantial expense and burden of individual prosecution
13 of this litigation;
14 2) Class certification will obviate the need for unduly duplicative
15 litigation that would create the risk of:
16 A. Inconsistent or varying adjudications with respect to
17 individual members of the CALIFORNIA LABOR SUB-
18 CLASS, which would establish incompatible standards of
19 conduct for DEFENDANT; and/or,
20 B. Adjudications with respect to individual members of the
21 CALIFORNIA LABOR SUB-CLASS would as a
22 practical matter be dispositive of the interests of the other
23 members not parties to the adjudication or substantially
24 impair or impede their ability to protect their interests;
25 3) In the context of wage litigation because a substantial number of
26 individual class members will avoid asserting their legal rights
27 out of fear of retaliation by DEFENDANT, which may adversely
28 affect an individual’s job with DEFENDANT or with a
COMPLAINT
-22-
1 subsequent employer, the Class Action is the only means to
2 assert their claims through a representative; and,
3 4) A Class Action is superior to other available methods for the fair
4 and efficient adjudication of this litigation because class
5 treatment will obviate the need for unduly and unnecessary
6 duplicative litigation that is likely to result in the absence of
7 certification of this Action pursuant to California Code of Civil
8 Procedure, Section 382.
9 45. This Court should permit this Action to be maintained as a Class Action
10 pursuant to California Code of Civil Procedure, Section 382, because:
11 (a) The questions of law and fact common to the CALIFORNIA LABOR
12 SUB-CLASS predominate over any question affecting only individual
13 members;
14 (b) A Class Action is superior to any other available method for the fair
15 and efficient adjudication of the claims of the members of the
16 CALIFORNIA LABOR SUB-CLASS because in the context of
17 employment litigation a substantial number of individual Class
18 Members will avoid asserting their rights individually out of fear of
19 retaliation or adverse impact on their employment;
20 (c) The members of the CALIFORNIA LABOR SUB-CLASS are so
21 numerous that it is impractical to bring all members of the
22 CALIFORNIA LABOR SUB-CLASS before the Court;
23 (d) PLAINTIFF, and the other CALIFORNIA LABOR SUB-CLASS
24 members, will not be able to obtain effective and economic legal
25 redress unless the Action is maintained as a Class Action;
26 (e) There is a community of interest in obtaining appropriate legal and
27 equitable relief for the acts of unfair competition, statutory violations
28 and other improprieties, and in obtaining adequate compensation for the

COMPLAINT
-23-
1 damages and injuries which DEFENDANT’s actions have inflicted
2 upon the CALIFORNIA LABOR SUB-CLASS;
3 (f) There is a community of interest in ensuring that the combined assets of
4 DEFENDANT are sufficient to adequately compensate the members of
5 the CALIFORNIA LABOR SUB-CLASS for the injuries sustained;
6 (g) DEFENDANT has acted or refused to act on grounds generally
7 applicable to the CALIFORNIA LABOR SUB-CLASS, thereby
8 making final class-wide relief appropriate with respect to the
9 CALIFORNIA LABOR SUB-CLASS as a whole;
10 (h) The members of the CALIFORNIA LABOR SUB-CLASS are readily
11 ascertainable from the business records of DEFENDANT. The
12 CALIFORNIA LABOR SUB-CLASS consists of those Collectors who
13 worked overtime hours and who were not paid overtime; and,
14 (i) Class treatment provides manageable judicial treatment calculated to
15 bring a efficient and rapid conclusion to all litigation of all wage and
16 hour related claims arising out of the conduct of DEFENDANT.
17
JURISDICTION AND VENUE
18
46. This Court has jurisdiction over this Action pursuant to California Code of
19
Civil Procedure, Section 410.10. This Action is brought as a Class Action on behalf of
20
similarly situated employees of SumTotal Systems, Inc. pursuant to California Code of Civil
21
Procedure, Section 382. At all relevant times mentioned herein, SumTotal Systems, Inc.
22
conducted and continues to conduct substantial and regular business in this County.
23
47. Venue is proper in this Court pursuant to California Code of Civil Procedure
24
Sections 395 and 395.5 because, during the CLASS PERIOD, DEFENDANT has
25
maintained and currently does maintain offices and facilities in this County, and
26
DEFENDANT committed the wrongful conduct alleged herein in this County against the
27
members of the CLASS.
28

COMPLAINT
-24-
1
2
3 FIRST CAUSE OF ACTION
4 For Unlawful Business Practices
5 [Cal. Bus. And Prof. Code § 17200 et seq.]
6 (By PLAINTIFF and the CALIFORNIA CLASS and against All Defendants)
7 48. PLAINTIFF, and the other members of the CALIFORNIA CLASS, reallege
8 and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 47
9 of this Complaint.
10 49. DEFENDANT is a "persons" as that term is defined under Cal. Bus. and
11 Prof. Code § 17021.
12 50. California Business & Professions Code § 17200 et seq. (the "UCL")
13 defines unfair competition as any unlawful, unfair, or fraudulent business act or practice.
14 Section 17203 authorizes injunctive, declaratory, and/or other equitable relief with respect to
15 unfair competition as follows:
16 Any person who engages, has engaged, or proposes to engage in unfair
competition may be enjoined in any court of competent jurisdiction. The court
17 may make such orders or judgments, including the appointment of a receiver,
as may be necessary to prevent the use or employment by any person of any
18 practice which constitutes unfair competition, as defined in this chapter, or as
may be necessary to restore to any person in interest any money or property,
19 real or personal, which may have been acquired by means of such unfair
competition.
20
California Business & Professions Code § 17203.
21
51. By the conduct alleged herein, DEFENDANT has engaged and continues to
22
engage in a business practice which violates California law, including but not limited to
23
provisions of the Wage Orders, the California Labor Code, the regulations of the
24
Department of Labor, and the opinions of the Department of Labor Standards Enforcement,
25
for which this Court should issue declaratory, and other equitable relief, pursuant to Cal.
26
Bus. & Prof. Code § 17203, as may be necessary to prevent and remedy the conduct held to
27
constitute unfair competition.
28
52. Throughout the CLASS PERIOD, it was also DEFENDANT’s uniform policy
COMPLAINT
-25-
1 and practice to make unavailable mandatory meal and rest breaks to the PLAINTIFF and the
2 Class Members. DEFENDANT’s uniform practice requires the PLAINTIFF and the Class
3 Members to work continuously throughout the workday without being supplied meal and/or
4 rest periods in accordance with the number of hours they worked. At all relevant times
5 during the CLASS PERIOD, DEFENDANT failed to provide any compensated work time
6 for interrupting and/or failing to provide such breaks to the PLAINTIFF and the Class
7 Members.
8 53. Therefore, the PLAINTIFF demands on behalf of herself and on behalf of
9 each member of the CLASS, one (1) hour of pay for each workday in which an off-duty
10 meal period was not timely provided for each five (5) hours of work, and/or one (1) hour of
11 pay for each workday in which a second off-duty meal period was not timely provided for
12 each ten (10) hours of work.
13 54. PLAINTIFF further demands on behalf of herself and on behalf of each
14 member of the CLASS, one (1) hour of pay for each workday in which a rest period was not
15 timely provided as required by law.
16 55. By and through the unfair and unlawful business practices described herein
17 above, DEFENDANT has obtained valuable property, money, and services from the
18 PLAINTIFF, and the other members of the CALIFORNIA CLASS, and has deprived them
19 of valuable rights and benefits guaranteed by law, all to their detriment and to the benefit of
20 DEFENDANT so as to allow DEFENDANT to unfairly compete. Declaratory and equitable
21 relief is necessary to prevent and remedy this unfair competition.
22 56. All the acts described herein as violations of, among other things, the
23 California Labor Code, California Code of Regulations, and the Industrial Welfare
24 Commission Wage Orders, are unlawful, are in violation of public policy, are immoral,
25 unethical, oppressive, and unscrupulous, and are likely to deceive employees, as herein
26 alleged, and thereby constitute deceptive, unfair and unlawful business practices in violation
27 of Cal. Bus. and Prof. Code § 17200 et seq.
28 57. PLAINTIFF, and the other members of the CALIFORNIA CLASS, are further

COMPLAINT
-26-
1 entitled to, and do, seek a declaration that the above described business practices are
2 deceptive unfair and/or unlawful.
3 58. The practices herein alleged presently continue to occur unabated. As a result
4 of the unfair and unlawful business practices described above, the PLAINTIFF, and the
5 other members of the CALIFORNIA CLASS, have suffered legal and economic harm.
6
7 SECOND CAUSE OF ACTION
8 For Failure To Pay Overtime Compensation
9 [Cal. Lab. Code §§ 510, 515.5, 551, 552, 1194 and 1198]
10 (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS)
11 59. PLAINTIFF, and the other members of the CALIFORNIA LABOR
12 SUB-CLASS, reallege and incorporate by this reference, as though fully set forth herein,
13 paragraphs 1 through 58 of this Complaint.
14 60. Cal. Lab. Code § 510 states in relevant part:
15 Eight hours of labor constitutes a day's work. Any work in excess of eight
hours in one workday and any work in excess of 40 hours in any one
16 workweek and the first eight hours worked on the seventh day of work in any
one workweek shall be compensated at the rate of no less than one and one-
17 half times the regular rate of pay for an employee. Any work in excess of 12
hours in one day shall be compensated at the rate of no less than twice the
18 regular rate of pay for an employee. In addition, any work in excess of eight
hours on any seventh day of a workweek shall be compensated at the rate of
19 no less than twice the regular rate of pay of an employee.
20 61. Cal. Lab. Code § 551 states that, "Every person employed in any occupation
21 of labor is entitled to one day’s rest therefrom in seven."
22 62. Cal. Lab. Code § 552 states that, "No employer of labor shall cause his
23 employees to work more than six days in seven."
24 63. Cal. Lab. Code § 515(d) provides: "For the purpose of computing the
25 overtime rate of compensation required to be paid to a nonexempt full-time salaried
26 employee, the employee's regular hourly rate shall be 1/40th of the employee's weekly
27 salary."
28 64. Cal. Lab. Code § 1194 states:

COMPLAINT
-27-
1 Notwithstanding any agreement to work for a lesser wage, any employee
receiving less than the legal minimum wage or the legal overtime
2 compensation applicable to the employee is entitled to recover in a civil action
the unpaid balance of the full amount of this minimum wage or overtime
3 compensation, including interest thereon, reasonable attorney's fees, and costs
of suit.
4
65. Cal. Lab. Code § 1198 provides: "The maximum hours of work and the
5
standard conditions of labor fixed by the commission shall be the maximum hours of work
6
and the standard conditions of labor for employees. The employment of any employee for
7
longer hours than those fixed by the order or under conditions of labor prohibited by the
8
order is unlawful."
9
66. In addition, Labor Code Section 558 provides:
10
(a) Any employer or other person acting on behalf of an employer
11 who violates, or causes to be violated, a section of this chapter or any
provision regulating hours and days of work in any order of the Industrial
12 Welfare Commission shall be subject to a civil penalty as follows:
(1) For any initial violation, fifty dollars ($50) for each underpaid
13 employee for each pay period for which the employee was underpaid in
addition to an amount sufficient to recover underpaid wages.
14 (2) For each subsequent violation, one hundred dollars ($100) for each
underpaid employee for each pay period for which the employee was
15 underpaid in addition to an amount sufficient to recover underpaid wages.
(3) Wages recovered pursuant to this section shall be paid to the
16 affected employee.
(b) If upon inspection or investigation the Labor Commissioner determines
17 that a person had paid or caused to be paid a wage for overtime work in
violation of any provision of this chapter, or any provision regulating hours
18 and days of work in any order of the Industrial Welfare Commission, the
Labor Commissioner may issue a citation. The procedures for issuing,
19 contesting, and enforcing judgments for citations or civil penalties issued by
the Labor Commissioner for a violation of this chapter shall be the same as
20 those set out in Section 1197.1.
(c) The civil penalties provided for in this section are in addition to any other
21 civil or criminal penalty provided by law.
22 67. DEFENDANT has intentionally and uniformly designated certain employees
23 as "exempt" employees, by their job title and without regard to DEFENDANT’s realistic
24 expectations and actual overall requirements of the job, including the PLAINTIFF and the
25 other members of the CALIFORNIA LABOR SUB-CLASS who worked on the production
26 side of DEFENDANT’s business. This was done in an illegal attempt to avoid payment of
27 overtime wages and other benefits in violation of the Cal. Lab. Code and Industrial Welfare
28 Commission requirements.

COMPLAINT
-28-
1 68. For an employee to be exempt as a bona fide "executive," all the following
2 criteria must be met and DEFENDANT has the burden of proving that:
3 (a) The employee’s primary duty must be management of the enterprise, or of a
4 customarily recognized department or subdivision; and,
5 (b) The employee must customarily and regularly direct the work of at least two
6 (2) or more other employees; and,
7 (c) The employee must have the authority to hire and fire, or to command
8 particularly serious attention to his or his recommendations on such actions
9 affecting other employees; and,
10 (d) The employee must customarily and regularly exercise discretion and
11 independent judgment; and,
12 (e) The employee must be primarily engaged in duties which meet the test of
13 exemption.
14 No member of the CALIFORNIA LABOR SUB-CLASS was or is an executive because
15 they all fail to meet the requirements of being an "executive" within the meaning of the
16 applicable Wage Order.
17 69. For an employee to be exempt as a bona fide "administrator," all of the
18 following criteria must be met and DEFENDANT has the burden of proving that:
19 (a) The employee must perform office or non-manual work directly related to
20 management policies or general business operation of the employer; and,
21 (b) The employee must customarily and regularly exercise discretion and
22 independent judgment; and,
23 (c) The employee must regularly and directly assist a proprietor or an exempt
24 administrator; or,
25 (d) The employee must perform, under only general supervision, work requiring
26 special training, experience, or knowledge, or,
27 (e) The employee must execute special assignments and tasks under only general
28 supervision; and,

COMPLAINT
-29-
1 (f) The employee must be primarily engaged in duties which meet the test of
2 exemption.
3 No member of the CALIFORNIA LABOR SUB-CLASS was or is an administrator because
4 they all fail to meet the requirements for being an "administrator" under the applicable Wage
5 Order.
6 70. The Industrial Welfare Commission, in Wage Order 1-2001 and 4-2001, at
7 section (1)(A)(3)(h), and Labor Code § 515 also set forth the requirements which must be
8 complied with to place an employee in the "professional" exempt category. For an
9 employee to be exempt as a bona fide "professional," all the following criteria must be met
10 and DEFENDANT has the burden of proving that:
11 (a) The employee is primarily engaged in an occupation commonly recognized as
12 a learned or artistic profession. For the purposes of this subsection, "learned
13 or artistic profession" means an employee who is primarily engaged in the
14 performance of:
15 1) Work requiring knowledge of an advanced type in a field or science or
16 learning customarily acquired by a prolonged course of specialized
17 intellectual instruction and study, as distinguished from a general
18 academic education and from an apprenticeship, and from training in
19 the performance of routine mental, manual, or physical processes, or
20 work that is an essential part or necessarily incident to any of the above
21 work; or,
22 2) Work that is original and creative in character in a recognized field of
23 artistic endeavor, and the result of which depends primarily on the
24 invention, imagination or talent of the employee or work that is an
25 essential part of or incident to any of the above work; and,
26 3) Whose work is predominately intellectual and varied in character (as
27 opposed to routine mental, manual, mechanical, or physical work) and
28 is of such character cannot be standardized in relation to a given period

COMPLAINT
-30-
1 of time.
2 (b) The employee must customarily and regularly exercise discretion and
3 independent judgment; and,
4 (c) The employee earns a monthly salary equivalent to no less than two (2) times
5 the state minimum wage for full-time employment.
6 No member of the CALIFORNIA LABOR SUB-CLASS was or is a professional because
7 they all fail to meet the requirements of being a "professional" within the meaning of the
8 applicable Wage Order.
9 71. PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-
10 CLASS, do not fit the definition of an exempt executive, administrative, or professional
11 employee because:
12 (a) They did not work as executives or administrators; and,
13 (b) The professional exemption does not apply to the PLAINTIFF, nor to the other
14 members of the CALIFORNIA LABOR SUB-CLASS because they did not
15 meet all the applicable requirements to work under the professional exemption
16 for the reasons set forth above in this Complaint.
17 72. During the CLASS PERIOD, the PLAINTIFF, and the other members of the
18 CALIFORNIA LABOR SUB-CLASS, worked more than eight (8) hours in a workday, forty
19 (40) hours in a workweek, and/or worked on the seventh (7th) consecutive day of a
20 workweek.
21 73. At all relevant times, DEFENDANT failed to pay the PLAINTIFF, and the
22 other members of the CALIFORNIA LABOR SUB-CLASS, overtime compensation for the
23 hours they have worked in excess of the maximum hours permissible by law as required by
24 Cal. Lab. Code §§ 510 and 1198, even though the PLAINTIFF, and the other members of
25 the CALIFORNIA LABOR SUB-CLASS, were regularly required to work, and did in fact
26 work, overtime hours.
27 74. By virtue of DEFENDANT’s unlawful failure to pay additional compensation
28 to the PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS, for

COMPLAINT
-31-
1 their overtime hours, the PLAINTIFF, and the other members of the CALIFORNIA LABOR
2 SUB-CLASS, have suffered, and will continue to suffer, an economic injury in amounts
3 which are presently unknown to them and which will be ascertained according to proof at
4 trial.
5 75. DEFENDANT knew or should have known that the PLAINTIFF, and the
6 other members of the CALIFORNIA LABOR SUB-CLASS, were misclassified as exempt
7 and DEFENDANT systematically elected, either through intentional malfeasance or gross
8 nonfeasance, not to pay them for their overtime labor as a matter of uniform corporate
9 policy, practice and procedure.
10 76. Therefore, the PLAINTIFF, and the other members of the CALIFORNIA
11 LABOR SUB-CLASS, request recovery of overtime compensation according to proof,
12 interest, costs, as well as the assessment of any statutory penalties against DEFENDANT, in
13 a sum as provided by the Cal. Lab. Code and/or other statutes. To the extent overtime
14 compensation is determined to be owed to members of the CALIFORNIA LABOR SUB-
15 CLASS who have terminated their employment, these employees would also be entitled to
16 waiting time penalties under Labor Code § 203, which penalties are sought herein. Further,
17 the PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS, are
18 entitled to seek and recover statutory costs.
19 77. In performing the acts and practices herein alleged in violation of labor laws
20 and refusing to provide the requisite overtime compensation, DEFENDANT acted and
21 continues to act intentionally, oppressively, and maliciously toward the PLAINTIFF, and
22 toward the other members of the CALIFORNIA LABOR SUB-CLASS, with a conscious
23 and utter disregard of their legal rights, or the consequences to them, and with the despicable
24 intent of depriving them of their property and legal rights and otherwise causing them injury
25 in order to increase corporate profits at the expense of the PLAINTIFF and the members of
26 the CALIFORNIA CLASS.
27
28 THIRD CAUSE OF ACTION

COMPLAINT
-32-
1 For Failure to Provide Accurate Itemized Statements
2 [Cal. Lab. Code § 226]
3 (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS)
4 78. PLAINTIFF, and the other members of the CALIFORNIA LABOR
5 SUB-CLASS, reallege and incorporate by this reference, as though fully set forth herein,
6 paragraphs 1 through 77 of this Complaint.
7 79. Cal. Labor Code § 226 provides that an employer must furnish employees
8 with an "accurate itemized" statement in writing showing:
9 (1) gross wages earned,
(2) total hours worked by the employee, except for any employee whose
10 compensation is solely based on a salary and who is exempt from payment of
overtime under subdivision (a) of Section 515 or any applicable order of the
11 Industrial Welfare Commission,
(3) the number of piecerate units earned and any applicable piece rate if the employee
12 is paid on a piece-rate basis,
(4) all deductions, provided that all deductions made on written orders of the
13 employee may be aggregated and shown as one item,
(5) net wages earned,
14 (6) the inclusive dates of the period for which the employee is paid,
(7) the name of the employee and his or her social security number, except that by
15 January 1, 2008, only the last four digits of his or her social security number or an
employee identification number other than a social security number may be shown on
16 the itemized statement,
(8) the name and address of the legal entity that is the employer, and
17 (9) all applicable hourly rates in effect during the pay period and the corresponding
number of hours worked at each hourly rate by the employee.
18
80. At all times relevant herein, DEFENDANT violated Labor Code § 226,
19
in that DEFENDANT failed to provide an accurate wage statement in writing that properly
20
and accurately itemized the number of hours worked by the PLAINTIFF, and the other
21
members of the CALIFORNIA LABOR SUB-CLASS at the effective regular rates of pay
22
and the effective overtime rates of pay.
23
81. DEFENDANT knowingly and intentionally failed to comply with Labor Code
24
§ 226, causing damages to the PLAINTIFF, and the other members of the CALIFORNIA
25
LABOR SUB-CLASS. These damages include, but are not limited to, costs expended
26
calculating the true hours worked and the amount of employment taxes which were not
27
properly paid to state and federal tax authorities. These damages are difficult to estimate.
28
Therefore, the PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-
COMPLAINT
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1 CLASS may elect to recover liquidated damages of $50.00 for the initial pay period in
2 which the violation occurred, and $100.00 for each violation in subsequent pay period
3 pursuant to Labor Code § 226, in an amount according to proof at the time of trial (but in no
4 event more than $4,000.00 for the PLAINTIFF and each respective member of the
5 CALIFORNIA LABOR SUB-CLASS herein).
6
7 PRAYER
8 WHEREFOR, the PLAINTIFF prays for judgment against each Defendant, jointly
9 and severally, as follows:
10 1. On behalf of the CALIFORNIA CLASS:
11 A) That the Court certify the First Cause of Action asserted by the CALIFORNIA
12 CLASS as a Class Action pursuant to California Code of Civil Procedure,
13 Section 382;
14 B) An order requiring DEFENDANT to correctly calculate and pay all wages and
15 all sums unlawfuly withheld from compensation due to the PLAINTIFF and
16 the other members of the CALIFORNIA CLASS; and,
17 C) Restitutionary disgorgement of DEFENDANT’s ill-gotten gains into a fluid
18 fund for restitution of the sums incidental to DEFENDANT’s violations due to
19 the PLAINTIFF and to the other members of the CALIFORNIA CLASS
20 according to proof.
21 2. On behalf of the CALIFORNIA LABOR SUB-CLASS:
22 A) That the Court certify the Second and Third Causes of Action asserted by the
23 CALIFORNIA LABOR SUB-CLASS as a Class Action pursuant to California
24 Code of Civil Procedure, Section 382;
25 B) Compensatory damages, according to proof at trial, including compensatory
26 damages for overtime compensation due PLAINTIFF and the other members
27 of the CALIFORNIA LABOR SUB-CLASS, during the applicable
28 CALIFORNIA CLASS PERIODS plus interest thereon at the statutory rate;

COMPLAINT
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