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1 BLUMENTHAL, NORDREHAUG BHOWMIK 2 3 4 5 Norman B. Blumenthal State Bar 068687 Kyle R. Nordrehaug State Bar 205975 Aparajit Bhowmik State Bar 248066 2255 Calle Clara La Jolla, CA 92037 Telephone 8585511223 Facsimile 858 5511232 Website www.bamlawca.com 6 Attorneys for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE OSCAR MOLINA and SYLVIA GARCIA, individuals, Plaintiffs, vs. DOLLAR

1 Plaintiffs Oscar Molina and Sylvia Garcia PLAINTIFFS, on behalf of themselves and 2 allege on information and belief, except for their own acts and knowledge, the following 3 4 5 1. THE PARTIES Defendant Dollar Tree Stores, Inc. DOLLAR TREE or DEFENDANT is 6 incorporated under the laws of the State of Virginia with its principal place of business 7 located in Chesapeake, Virginia. 8 2. DOLLAR TREE operates over 4,000 retail stores in the United States and 9 Canada with over 360 stores in C

1 DOLLAR TREE as a Store Manager from September of 2005 to December of 2011. At all 2 times during his employment with DOLLAR TREE as a Store Manager Plaintiff Oscar 3 Molina was classified as a salaried employee exempt from overtime pay and related benefits. 4 5. Plaintiff Sylvia Garcia resides in the County of Orange and was employed by 5 DOLLAR TREE as a Store Manager from October of 2002 to October of 2010. At all times 6 during her employment with DOLLAR TREE as a Store Manager Plaintiff S

1 unable to make employmentrelated, personnel decisions. Consequently, PLAINTIFFS did 2 not have the authority to decide whether or not an employee should be disciplined for an 3 infraction. Disciplinary decisions were made by the human resources department or dictated 4 by company policies. Overall, the PLAINTIFFS recommendations were given little, if any, 5 weight on all the above issues. As a result, the PLAINTIFFS were engaged in a type of work 6 that required no exercise of independent judg

1 presently unknown to the PLAINTIFFS who therefore sue these Defendants by such 2 fictitious names pursuant to Cal. Civ. Proc. Code 474. The PLAINTIFFS will seek leave to 3 amend this Complaint to allege the true names and capacities of DOES 1 through 50, 4 inclusive, when they are ascertained. PLAINTIFFS are informed and believe, and based 5 upon that information and belief allege, that the Defendants named in this Complaint, 6 including DOES 1 through 50, inclusive, are responsible in some m

1 responsibilities the PLAINTIFFS performed in addition to the work performed by other non2 exempt retail associates who were eligible for overtime compensation, was scheduling shifts 3 for retail associates and interviewing potential employees and were performed in strict 4 accordance with DEFENDANTs company policies and procedures. PLAINTIFFS spent a 5 very small amount of their working time engaging in these tasks, but rather spent the vast 6 majority of their time performing the nonexempt an

1 exempt based on job title alone. 2 20. During employment with DEFENDANT, the PLAINTIFFS primarily 3 performed nonexempt job duties, but were nevertheless classified by DEFENDANT as 4 exempt from overtime pay and worked more than eight 8 hours in a workday and in excess 5 of forty 40 hours in a workweek. 6 21. PLAINTIFFS were not engaged in work of a type that was or now is directly 7 related to the management or general business operations of the DEFENDANTs customers, 8 when giving these wor

1 DEFENDANT. The PLAINTIFFS did not set policies or establish procedures for 2 DEFENDANT and were expected to use their experience, knowledge, skill and training to 3 operate within the policy guidelines that were provided to them by DEFENDANT. 4 23. The PLAINTIFFS were classified as exempt from California overtime and 5 related laws by DEFENDANT, however, these employees did not have managerial duties or 6 authority and were therefore managers in name only. The PLAINTIFFS, in performing these

1 during the pay period and the corresponding number of hours worked at each hourly rate by 2 the PLAINTIFFS. This conduct violated California Labor Code 226a. The pay stub also 3 did not accurately display anywhere the PLAINTIFFS overtime hours and applicable rates 4 of overtime pay for the pay period. 5 26. By reason of this uniform conduct applicable to the PLAINTIFFS, 6 DEFENDANT committed acts of unfair competition in violation of the California Unfair 7 Competition law, Cal. Bus. Prof.

1 30. DEFENDANT is a person as that term is defined under Cal. Bus. and Prof. Code 2 17021. 3 31. California Business Professions Code 17200 et seq. the UCL 4 defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. 5 Section 17203 authorizes injunctive, declaratory, andor other equitable relief with respect to 6 unfair competition as follows 7 8 9 10 11 Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in a

1 to deceive, for which the Court should issue injunctive and equitable relief, pursuant to Cal. Bus. 2 Prof. Code 17203, including restitution of wages wrongfully withheld. 3 35. By the conduct alleged herein, DEFENDANTs practices were also unlawful, 4 unfair and deceptive in that DEFENDANTs employment practices caused the PLAINTIFFS to 5 be underpaid during their employment with DEFENDANT. 6 36. By and through the unlawful and unfair business practices described herein, 7 DEFENDANT has obt

1 suffer legal and economic harm unless DEFENDANT is restrained from continuing to engage 2 in these unlawful and unfair business practices. 3 4 5 6 7 8 41. SECOND CAUSE OF ACTION For Failure To Pay Overtime Compensation Cal. Lab. Code 510, 1194 and 1198 By PLAINTIFFS Against All Defendants PLAINTIFFS reallege and incorporate by the reference, as though fully set forth 9 herein, paragraphs 1 through 40 of the Complaint. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47. 43. 42. Cal.

1 standard conditions of labor fixed by the commission shall be the maximum hours of work and 2 the standard conditions of labor for employees. The employment of any employee for longer 3 hours than those fixed by the order or under conditions of labor prohibited by the order is 4 unlawful. 5 48. DEFENDANT has intentionally and uniformly designated certain employees as 6 exempt employees, by their job title and without regard to DEFENDANTs realistic 7 expectations and actual overall requirement

1 2 3 4 5 6 7 8 9 10 management policies or general business operation of the employer and, b The employee must customarily and regularly exercise discretion and independent judgment and, c The employee must regularly and directly assist a proprietor or an exempt administrator or, d The employee must perform, under only general supervision, work requiring special training, experience, or knowledge, or, e The employee must execute special assignments and tasks under only general supervision and,

1 2 3 4 5 6 7 8 9 b or talent of the employee or work that is an essential part of or incident to any of the above work and, 3 Whose work is predominately intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work and is of such character cannot be standardized in relation to a given period of time. The employee must customarily and regularly exercise discretion and independent judgment and, c The employee earns a monthly salary equivalent to no less

1 misclassified as exempt and DEFENDANT systematically elected, either through intentional 2 malfeasance or gross nonfeasance, not to pay PLAINTIFFS for PLAINTIFFS overtime labor 3 as a matter of uniform corporate policy, practice and procedure. 4 57. Therefore, the PLAINTIFFS request recovery of overtime compensation 5 according to proof, interest, costs, as well as the assessment of any statutory penalties against 6 DEFENDANT, in a sum as provided by the Cal. Lab. Code andor other statutes. T

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 subdivision a of Section 515 or any applicable order of the Industrial Welfare Commission, 3 the number of piecerate units earned and any applicable piece rate if the employee is paid on a piecerate basis, 4 all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, 5 net wages earned, 6 the inclusive dates of the period for which the employee is paid, 7 the name of the employee and her or h

1 2 3 4 5 63. FOURTH CAUSE OF ACTION For Failure to Pay Wages When Due Cal. Lab. Code 203 By PLAINTIFFS Against All Defendants PLAINTIFFS reallege and incorporate by reference, as though fully set forth 6 herein, paragraphs 1 through 62 of the Complaint. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68. 66. 67. 65. 64. Cal. Lab. Code 200 provides that As used in the article a Wages includes all amounts for labor performed by employees of every description, whether the amount is fixe

1 accounting and payment of all wages due, plus interest, plus attorneys fees and interest as 2 allowed by law. 3 4 5 PRAYER FOR RELIEF WHEREFOR, the PLAINTIFFS pray for judgment against each Defendant, jointly 6 and severally, as follows 7 1. 8 9 10 11 12 13 14 2. 15 16 17 18 19 20 21 22 23 24 25 3. 26 27 28 On the UCL claim A An order requiring DEFENDANT to correctly calculate and pay all wages and all sums unlawfuly withheld from compensation due to the PLAINTIFFS B Restitutionary disgorgeme

1 2 3 allegation or prayer in the Complaint is to be construed as a request, under any circumstance, that would result in a request for attorneys fees under Cal. Lab. Code 218.5. BLUMENTHAL, NORDREHAUG BHOWMIK By s Norman Blumenthal Norman B. Blumenthal Attorneys for Plaintiff 4 Dated July 20, 2012 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT 20

1 2 3 4 Dated July 20, 2012 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL PLAINTIFFS demand a jury trial on issues triable to a jury. BLUMENTHAL, NORDREHAUG BHOWMIK By s Norman Blumenthal Norman B. Blumenthal Attorneys for Plaintiff KDDropboxPending LitigationDollar Tree GarciapcomplaintFINAL.wpd COMPLAINT 21

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