Complaint

Cal. Super. - 3rd Dist.June 10, 2021

Kurt D. Hendrickson, State Bar No. 251509 Chase A. Meister, State Bar No. 332123 KDH Law 2101 Stone Blvd., Suite 115 West Sacramento, CA 95691 916.993.5226 Kurlia:KDI lendrickson.corn & ChascraIKDIlcndrickson.corn Attorneys for PlaintiffRichard E. Ryan SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARD E. RYAN, a natural person, Plaintiff, PALMER CAPITAL, INC., a California corporation; WILLIAM S. PALMER, a natural person; and DOES I through 10, inclusive, Defendants. CASE NO. COMPLAINT FOR: I) UNLAWFUL FAILURE TO PAY OVERTIME WAGES (VIOLATION OF LABOR CODE, SECTIONS 510, 1194, and 1198); 2) UNLAWFUL FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS (VIOLATION OF LABOR CODE9 SECTIONS 226 and 1174); 3) UNLAWFUL FAILURE TO PAY VESTED VACATION WAGES (VIOLATION OF LABOR CODE, SECTION 227.3); 4) UNLAWFUL FAILURE TO PAY WAGES UPON TERMINATION (VIOLATION OF LABOR CODE, SECTION 203); 5) UNLAWFUL FAILURE TO REIMBURSE EXPENSES (VIOLATION OF LABOR CODE, SECTION 2802); 6) UNLAWFUL AND WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICYI 7) BREACH OF IMPLIED COVENENANT OF GOOD FAITH AND FAIR DEALING EMPLOYMENT CONTRACT; 8) UNFAIR BUSINESS PRACTICES I COMPLAINT FOR DAMAGES 4k RESTITUTION (VIOLATION OF BUSINESS & PROFESSIONS CODE 17200, eI seq.); AND 9) UNJUST ENRICHMENT. JURY TRIAL DEMANDED 4 Plaintiff, RICHARD E. RYAN, hereby alleges as follows: 5 PARTIES 6 1. Plaintiff RICHARD E. RYAN ("RYAN") is and was at all times mentioned herein 7 a natural person. At the end of RYAN * s employment, RYAN was, and now still remains, a resident 8 of Placer County, within the State of California. RYAN's nickname as he is commonly referred to by his friends, family, and co-workers is "Rick" as opposed to his proper name *'Richard." 10 2. RYAN is informed and believes, and thereon alleges, that Defendant PALMER 11 CAPITAL, INC. ("PALMER CAPITAL") is and was at all times mentioned herein a corporation 12 organized and existing under the laws of the State of California and is and was at all times 13 mentioned herein qualified to do business in California with a most recent principal place of 14 business now in Placer County located specifically at 1478 Stone Point Drive, Suite 250 in 15 Roseville, within the State of California. The address on file with the Secretary of State displays 16 this very same address as the entity address, however, the address for the agent for service of 17 process displays the residential, home address of PALMER CAPITAL's alter-ego, sole owner with 18 a residential address in Placer County located specifically at 6342 Calle Montalvo Circle, in 19 Granite Bay, within the State of California. Previously, PALMER CAPITAL maintained a 20 principal place ofbusiness in Sacramento County, within the State of California. 21 3. RYAN is informed and believes, and thereon alleges, that Defendant WILLIAM S. 22 PALMER ("PALMER") is and was at all times mentioned herein was an officer, director, and the 23 sole shareholder of PALMER CAPITAL (collectively "Defendants") and acted as its principal 24 agem. With that authority, I'ALMER acted within the course and scope of such principal agency 25 by aiding and abetting, through acts and omissions with respect to, all of the violations of 26 PALMER CAPITAL against RYAN alleged herein. More than merely being the principal agent 27 28 2 COMPLAINT FOR DAMAGES & RESTITUTION of PALMER CAPITAL, RYAN is informed and believes, and thereon alleges, that Defendant PALMER CAPITAL is, in fact, the alter-ego of PALMER. PALMER is and was at all times mentioned herein a natural person. Upon information and belief, PALMER is and was at all times mentioned herein the founder, sole owner and stockholder, "President," and "Chief Executive Officer" of PALMER CAPITAL. At all times relevant and mentioned herein, PALMER was and still is a resident of Placer County, within the State of California. Upon information and belief, PALMER's mansion is located at the address for the agent for service of process of PALMER CAPITAL, as referenced above, in the upscale enclave of Granite Bay within the luxury, gated neighborhood of Los Lagos. PALMER's LEAR 45XR and his Hawker jet airplanes have been 10 maintained and stored, together and separately, at the Mather Airport private hangars. 4. RYAN is informed and believes, and thereon further alleges, that PALMER 12 13 14 15 CAPITAL is, in fact, the alter-ego of its sole owner, oflicer, and director, PALMER. A unity of interest and ownership exists with respect to PALMER's acts and omissions with respect to his undisputed and overbearing domain and control of PALMER CAPITAL; and an unjust result would occur if PALMER CAPITAL alone were to be treated as the sole actor for the acts and 16 17 omissions of PALMER. The summary facts stated herein are sufficient to demonstrate that the violative conduct amounting to bad faith would make it inequitable for PALMER to attempt to 18 hide behind the corporate form of PALMER CAPITAL. It is further alleged that the corporate 19 form of PALMER CAPITAL was used to accomplish a fraudulent and/or unlawful object by 20 PALMER, and the summary facts stated herein demonstrate the improper domination of the 21 22 corporation, PALMER CAPITAL, by PALMER. That improper domination and unfettered control of the corporation included: 23 24 25 26 a. Commingling funds and other assets of PALMER CAPITAL's and PALMER's iunds snd other assets for his own convcnicnrc and to assist in evading payment of obligations; b. PALMER treated the assets of PALMER CAPITAL as his own; 27 28 3 COMPLAINT FOR DAMAGES & RESTITUTION c. PALMER failed to maintain minutes or adequate corporate records of PALMER CAPITAL; d. PALMER used PALMER CAPITAL as a mere shell, instrumentality, or conduit for his business; e. PALMER diverted assets from PALMER CAPITAL for himself, to the detriment of creditors, including RYAN; and f. PALMER routinely speculated with PALMER CAPITAL's assets and funds in the stock market for his own sole benefit and gain. 5. RYAN is currently ignorant of, or otherwise unable to specifically allege, the true 10 names and capacities of Defendants referenced within this Complaint herein as DOES I through 10, inclusive, and therefore sues Defendants by such fictitious names. RYAN will amend this 12 Complaint to allege their true names and capacities when ascertained. RYAN is informed and 13 14 believes, and thereon alleges, that each fictitiously named Defendant is responsible in some manner for the occurrences and harm suffered by RYAN as herein alleged. 15 6. RYAN is informed and believes, and thereon further alleges, that at all relevant 16 17 times, Defendants, including each Defendant named herein as DOES I through 10, inclusive, were the agents and servants of each of the other Defendants, and acted within the course and scope of 18 such agency. 19 INTRODUCTION 20 7. In 1911, the State of California enacted its first daily overtime law, thereby setting 21 22 the State of California's first eight-hour workday standard, long before even the United States federal government enacted overtime and wage protections for workers across the United States 23 of America. 24 25 According to findings of thc California State Lcgislaturc, numerous studies have linked long work hours to increased rates of accident, injury, and a loss of family cohesion when 26 27 either or both parents are kept away from home for extended periods of time, on either a daily or weekly basis. The goals of overtime protections are also aimed at promoting fuller employment 28 4 COMPLAINT FOR DAMAGES & RESTITUTION I and properly compensating employees thatare subject to long and demanding work hours in efforts 2 to benefit the employers. 9. Compensation for overtime worked by an employee, compensation for unused (or 4 vested) vacation time (or paid time off(aPTOa)) accrued by an employee, as well as ensuring that 5 employees are properly reimbursed for personal expenses on behalf of their employer during 6 employment are all rights that are codified and defined by state law in the State of California and 7 these rights of employees may not be waived, or otherwise modified, by any agreement with an 8 employer. 9 10. The willful misclassification of employees as '*exempt" from overtime pay by 10 employers is a common and unlawful practice within the State of California. Industrial Welfare I I Commission (aIWC") Wage Orders govern the wages, hours, and working conditions of persons 12 employed in specific industries and/or holding specific occupations. In California, an industry 13 Order (i.e., Order Nos. 1-3 and 5-13) regulates wages, hours and working conditions in specific 14 industries. The remaining Orders (i.e., Order Nos. 4 and 14-17) only apply when a business is not 15 covered by an industry specific Order. 16 11. Unlawful and wrongful termination can take on many forms with respect to 17 discrimination: race, religious creed, color, national origin, ancestry, physical disability, mental 18 disability, medical condition, genetic information, marital status, sex, gender, gender identity, 19 gender expression, age, sexual orientation, or veteran or military status. In addition to these 20 enumerated statutory grounds, a common law tort claim exists for the wrongful discharge in 21 violation of public policy. "The elements of a claim for wrongful discharge in violation of public 22 policy are (I) an employer-employee relationship, (2) the employer terminated the plaintiffs 23 employment, (3) the termination was substantially motivated by a violation of public policy, and 24 (4) the diacharue cauacd thc pla'iff harmre (I art r..lilcet (2014) 229 Cul.rxpp.4th 144, 154.) 25 12. Wage theft is of primary concern for the California State Legislature and the 26 Legislature has promulgated a statutory framework to strictly prohibit wage theA by employers 27 such as PALMER and PALMER CAPITAL of any type or form within the State of California. 28 5 COMPLAINT FOR DAMAGES & RESTITUTION The California State Legislature has passed legislation to address this type ofemployer conduct in the form of the "Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999" as well as the "California's Fair Day's Pay Act" among numerous other laws to complement the statutory framework to protect employees from oppressive and harmful California employers. 13. In 1999, the California State Legislature again affirmed the importance of the eight- hour workday, declaring that it should be protected, and reaffirmed the state's unwavering commitment to upholding the eight-hour workday as a fundamental protection for working people when the California State Legislature enacted the Eight-Hour-Day Restoration and Workplace 10 Flexibility Act of 1999. 14. In 2016, the California State Legislature again affirmed the importance of holding 12 13 oppressive and unscrupulous, highly paid CEOs, such as PALMER, personally and individually accountable for their actions involving wage theft committed against working people when the California State Legislature enacted the "California's Fair Day's Pay Act." 14 15. The "continuing violation" doctrine is a well-established judicial doctrine that is 15 16 17 recognized and applies with respect to employment related claims and forming the basis for employer liability within the State of California. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798.) 18 GENERAL ALLEGATIONS 19 16. On or about July 2003, RYAN was hired by PALMER as an employee for 20 PALMER at CBRE Group, Inc. (prior to the registration of PALMER CAPITAL's predecessor 21 company name, "The Palmer Team, Inc.,*'ith the Secretary of State) to function and produce as 22 23 a real estate salesperson compensated by a predetermined annual "salary" and with the opportunity to earn additional "bonus" compensation as paid at a time and place at the absolute discretion of 25 26 27 PALMER, ond only PALMER. 17. On or about August 20, 2004, PALMER registered The Palmer Team, Inc. with the Secretary of State. Thereafter, in February 2005, PALMER announced to the news media and other concerns the fact that The Palmer Team, Inc. would completely sever its affiliation with CBRE 28 6 COMPLAINT FOR DAMAGES & RESTITUTION Group, Inc. On or about February 27, 2005, RYAN signed an "Account Executive Employment Agreement" with PALMER CAPITAL (at that time still referred to as The Palmer Team, Inc.). A copy of the Account Executive Employment Agreement is attached hereto this Complaint as Exhibit A. 10 18. On or about November 17, 2020, at approximately 7:21 p.m. in Roseville, California, RYAN was wrongfully terminated by PALMER in a summary and unsanctimonious fashion by PALMER by means ofmerely sending an email from PALMER to RYAN. After almost seventeen and a half (17.5) years of loyal and dutiful service to PALMER CAPITAL, RYAN was summarily dismissed and discarded within a few short minutes of PALMER's ill-tempered moments of time on that ill-fated day for RYAN. 12 13 14 19. During the term of RYAN's employment with PALMER CAPITAL, he worked as a commercial real estate salesperson under PALMER's strict direction, supervision, and exacting control as PALMER was and currently is PALMER CAPITAL's California-licensed real estate broker. 15 16 20. primary duties During the term of RYAN's employment with PALMER CAPITAL, RYAN's comprised of: 17 19 20 21 22 23 a4 25 26 27 a. Attending mandatory, three-to-four-hour-long weekly meetings led by PALMER which commenced at an unusually early time in the morning, 6:00 a.md b. Making sales calls to PALMER CAPITAL customers that PALMER assigned RYAN. PALMER required that RYAN stand upright (i.e., no sitting) while making calls between the hours of 9:00 am to 11:00 am and I:30 pm to 3:30 pm. This militant-control style of dictating time to mandatorily stand and times to mandatorily sit only ceased for RYAN in 2020 due to RYAN having finally to caprcss thc fact that hc could bc physically harmed by continuing tv dv so as a result of pre-existing injuries that he had sustained to both his knee and Acilles'endon. The phone system allowed PALMER to, at any time, unilaterally intercom 7 COMPLAINT FOR DAMAGES & RESTITUTION into any of RYAN's phone calls to listen-in-on RYAN's calls without his knowledge; c. Preparing and drafting "Offering Memorandums" and Requests for Proposals ("RFPs") at PALMER's specific direction, with each task of composing these documents performed under PALMER's exacting supervision, and for PALMER's final and discretionary approval; 10 d. For many years, reading as much as one thousand (1,00) pages of periodicals each weekend (Saturdays and/or Sundays) instead of spending time with family and identifying pertinent news articles to be manually input into aMarketMaker" for use for sales calls; and 12 e. Processing Memorandum and "Research*'tems as assigned specifically at the sole direction of PALMER. 13 14 21. PALMER and PALMER CAPITAL required RYAN to work and track at least sixty (60) hours per week to perform these duties. Although PALMER and PALMER CAPITAL did 15 16 eventually relax this amount to fifty-five (55) hours a week late in RYAN's career at PALMER CAPITAL. All the while, PALMER strictly monitored and directed RYAN 's performance of these 17 duties. 18 19 22. Notwithstanding the above treatment of RYAN by PALMER and PALMER CAPITAL, RYAN performed the tasks assigned to him dutifully with exceptional detail and with 20 complete loyalty to PAI.MER CAPITAL. 21 23. PALMER and PALMER CAPITAL reaped immense financial benefits as result of 22 RYAN's work and production. 23 2a 25 26 27 24. PALMER CAPITAL and PALMER misclassified RYAN as an exempt employee, hut RYAN's position was onc of a non-cxcmpt cmploycc Sivcn thut none of tho nurrowly construed exemptions from statutory mandatory overtime provisions applied (or apply) to RYAN. 25. RYAN was not an employee that used independent discretion and judgment to perform his work tasks under his employment by PALMER and PALMER CAPITAL. For 28 8 COMPLAINT FOR DAMAGES & RESTITUTION example, RYAN had no authority to determine, nor independently negotiate the fees charged to customers on real estate sales that were in large part due to RYAN's productivity with the customers that he was assigned to solicit at the sole direction and assignment of PALMER on behalf of advancing PALMER and PALMER CAPITAL's economic interests. 26. RYAN was also not a learned professional in any sense in his employment capacity as a real estate salesperson employed by and for PALMER and PALMER CAPITAL. RYAN was employed as real estate salesperson for PALMER and PALMER CAPITAL and primarily engaged in the pedestrian solicitation of real estate owners at the direction of PALMER based o culling or otherwise "cold calling" owners of real estate who had not, or would not, schedule, or otherwise 10 agree to, a phone call to discuss real estate purchase or sale activities. 12 27. To perform his job duties, RYAN had not completed a prolonged course of intellectual instruction in a recognized field of science or learning resulting in the attainment of an 13 14 advanced degree or certificate relevant to his employment by and for PALMER and PALMER CAPITAL. Although RYAN is highly intellectual in many regards; his employment has nothing 15 16 to do with his college-level instruction or learning. RYAN attained an undergraduate degree in the field of Molecular Environmental Biology, conferred upon him in the year 2001 with a grade point 17 average ("GPA") of 3.8. RYAN attained a graduate degree in the field of Quality and 18 Manufacturing Management (effectively Business and Engineering compiled instruction relating 19 to Manufacturing) conferred upon him in the year 2002 with a GPA of 4.0. Obviously, neither 20 21 Molecular Environmental Biology nor Quality and Manufacturing Management are related to RYAN having been employed as a licensed real estate salesperson that was directed by PALMER 22 to '*cold call" owners of real estate in effort to motivate or compel them through scripted and 23 pedestrian sales tactics to engage in purchase or sale transactions ofcommercial realty. Effectively, 24 25 26 RYAN was cducatcd as a technically proficient scicncc and cnginccring student but was employed by PALMER as call center employee to solicit prospects who are recorded and memorialized in the public record and media. 27 28 9 COMPLAINT FOR DAMAGES & RESTITUTION 28. RYAN was paid a salary by PALMER and PALMER CAPITAL and his final rate of pay was determined solely by PALMER to be $250,000.00 per year, with a stated incentive fee of $60,000.00 for that year with opportunity for an undetermined discretionary bonus according to the unilateral terms ofan email sent from PALMER's personal email address to RYAN on or about December 26, 2019. 29. RYAN's position did not qualify as an exempt employee for whom PALMER and PALMER CAPITAL would have been free from the statutory obligations regarding overtime pay. 30. RYAN should have received compensation on an hourly basis along with all relevant statutory and regulatory protections for overtime pay, meal periods, and rest breaks. 10 31. During RYAN's tenure as an employee, PALMER and PALMER CAPITAL did not have a policy prohibiting coff the clock" work. To the contrary, PALMER demanded and, in 12 13 fact, required RYAN to continuously perform aoff the clock'* and uncompensated work for the benefit of PALMER CAPITAL and for the unjust personal enrichment of PALMER. 14 15 32. Exempt employees are generally expected to devote the number ofhours necessary to complete their respective tasks. The salary of exempt employees does not change based on 16 17 18 actual hours expended by exempt employees. 33. Further evidencing that RYAN was not an exempt employee, PALMER and PALMER CAPITAL would rigorously demand, and ensure by meticulous tracking, that RYAN 19 worked a minimum of sixty (60) hours per week, then fifty-five (55) hours a week later in RYAN's 20 career at PALMER CAPITAL 21 22 34. If RYAN did not work the required minimum of sixty (60) hours per week, or fiIIy- five (55) hours per week, then PALMER threatened that RYAN would be subject to a reduction 23 in pay or termination of his employment. This hourly tracking of time is not representative of an 24 cxcmpt cmploycc. A prima facie casa is hcrcby dcmonstratod tltat RYAN was not cn cxcmpt 25 26 27 employee. 35. The next figure of significant importance for PALMER and PALMER CAPITAL when tracking RYAN's hourly whereabouts concerned RYAN's logging into MarketMaker and 10 COMPLAINT FOR DAMAGES tie RESTITUTION properly tracking his attendance at the daily morning meeting. The daily morning meeting was typically held at 6:30 a.m., every day. If RYAN missed, or failed to properly log into, a morning meeting by commanding his keyboard in the following sequence of "CtrIAQ then Shit+F6", then he would receive a "missed meeting" in the MarketMaker time tracking software. If RYAN received more than twenty (20) "missed meetings" in the MarketMaker per year, then again, PALMER threatened that RYAN would be subject to a reduction in pay or termination of his employment. Again, this meticulous tracking of time is not representative of an exempt employee. A prima facie case is hereby further demonstrated that RYAN was not an exempt employee. 36. RYAN's pay stubs and W-2's from PALMER CAPITAL will further demonstrate 10 that Defendants did not differentiate between the numbers of hours worked and had failed to 12 account for different pay rates for the lawful compensation of RYAN for his employment. Defendants failed to pay RYAN the appropriate overtime and double-time statutory rates of pay 13 for the hours that RYAN worked. 14 37. PALMER and PALMER CAPITAL*s willful and wrongful failure to properly pay 15 16 RYAN as a non-exempt employee caused RYAN to suffer lost earnings as he constantly worked beyond eight (8) hours per day and therefore he was lawfully entitled to overtime and double-time 17 18 statutory rates of pay for the overtime and double-time hours that RYAN worked. 38. To date, RYAN has still not been paid for his total hours worked at PALMER 19 CAPITAL, including overtime pay. 20 21 22 23 39. RYAN reasonably believes and therefore alleges that PALMER and PALMER CAPITAL improperly withheld payments from his earned overtime wages and failed to process those payments to the proper governmental authorities (i.e., Internal Revenues Service, United States Department of the Treasury, and California Franchise Tax Board). 40. Th«vntinulng vivlutivnu uvvtcinc upplicu ncrcin tv tltc cuuuc vf uctivn fvr 25 PALMER and PALMER CAPITAL's misclassification of RYAN and for the resultant violation 26 27 of the unlawful failure to pay overtime wages. Accordingly, the applicable statute of limitations with respect to PALMER and PALMER CAPITAL's wage theft against RYAN did not begin to 11 COMPLAINT FOR DAMAGES & RESTITUTION run, as a matter of law, in this instant matter until RYAN's termination. The continuing violations doctrine also applies herein to the cause of action for PALMER and PALMER CAPITAL's failure to reimburse RYAN for his expenses to benefit his employer. 41. Towards the end of RYAN's employment with PALMER CAPITAL, COVID-19 spread throughout California and the World Health Organization declared it a Pandemic. Starting in March of 2020, the State of California implemented laws, such as Governor Gavin Newsom's Executive Orders N-33-20 and N-60-20, in order to protect the health and welfare of the State' citizens. Notwithstanding the fact that Governor Gavin Newsom and health authorities directed a quarantine and for non-essential employees (such as commercial real estate sales people) to remain 10 at home to stop the COVID-19 outbreak, PALMER directed RYAN and other employees to continue working as non-essential employees but modified the arrangements by not allowing 12 RYAN and other employees to leave the office throughout the COVID-19 outbreak; thus requiring 13 14 RYAN and other employees to remain working within the PALMER CAPITAL oAice space for the entire minimum of an eleven (11) hour period without allowing RYAN and other employees 15 16 to even leave the office space. Effectively, PALMER disregarded the health authority and Governor's directives and perversely decided to use the directives as a reason to assert further 17 18 control against the employees of PALMER and PALMER CAPITAL. 42. Notwithstanding the Governor's and Placer County's health directives with the 19 20 hope of preserving citizen's health during the Pandemic, as stated immediately above, PALMER and PALMER CAPITAL willfully refused to obey government health directives and Defendants 21 would not allow RYAN to quarantine or work remotely. In the year 2020, PALMER and PALMER 22 CAPITAL acted unlawfully towards RYAN in numerous ways until his unsanctimonious 23 termination via email by PALMER without reason orjustification. 25 26 43. Email communicationa rol lowing thc State anti local government's hcaltlt directives demonstrate that PALMER immediately began threatening to wrongfully terminate RYAN in retaliation for RYAN wanting to not be required to manually log all hours recorded 27 within the office like an hourly day laborer. This is merely one aspect of the unlawful and wrongful 28 12 COMPLAINT FOR DAMAGES & RESTITUTION termination that RYAN suffered at PALMER CAPITAL as a result of PALMER's irrational and capricious conduct during RYAN's tenure of loyal and committed service. Effectively, PALMER unilaterally terminated RYAN for protesting PALMER and PALMER CAPITAL's unlawful misclassification ofattempting to assert that RYAN was an exempt employee when, in fact, RYAN was non-exempt. Additionally, RYAN was refusing to come back and forth to the office merely to "log in" and "log out" of PALMER's proprietary tracking system in a manner that was uncompensated to RYAN and that violated the State of California* s regulated wage and hour laws. 44. RYAN was wrongfully and unlawfully terminated by PALMER and PALMER CAPITAL for not returning to the office every day at PALMER's direction to *'click a button*'t 10 PALMER's direction without lawful and earned compensation. PALMER wanted to control almost every aspect of RYAN's daytime hours but PALMER and PALMER CAPITAL did not 12 want to lawfully compensate RYAN for his efforts and his work. 13 45. Leading up to PALMER and PALMER CAPITAL's unsanctimonious and 14 wrongful termination of RYAN, PALMER consistently treated RYAN in a disparate and unfair 15 16 manner relative to other employees. At the end of the day, RYAN was wrongfully terminated without any just or reasonable cause. 17 18 46. Beginning in or around the year 2018, PALMER directed RYAN to sit in isolation from the other employees, despite the fact that RYAN was unquestionably one of the most 19 productive and successful employees in the entire company, further demonstrating the disparate 20 and unfair manner in which RYAN was poorly treated by PALMER relative to other, less 21 22 competent or productive, employees. 47. PALMER routinely promoted other, less qualified less competent, and less 23 25 productive, employees, to his so-called "Operations Team" yet continued to refuse to promote RYAN io thc Operations Team. Consistent with this constant tlenial, it is allegett that lower levels of both salary and bonus compensation were bestowed upon RYAN due to PALMER's disparate 26 treatment of RYAN relative to the lesser qualified employees. 27 28 l3 COMPLAINT FOR DAMAGES & RESTITUTION 48. RYAN was not a «yes man"; yet the members of the Operations Team were, in fact, merely "yes men" to PALMER (and/or were relatives to PALMER) that had been promoted above RYAN, despite the fact that the Operations Team were less skilled and less qualified than RYAN. The Operations Team primarily consists of PALMER's employees that effectively served as PALMER's former personal assistants/secretaries when PALMER contracted as a sales broker with CBRE Group, Inc. as well as PALMER's family members. 49. In fact, RYAN was continuously recognized by PALMER and his co-workers as being very hard-working and productive throughout his tenure at PALMER CAPITAL while working at PALMER's direction. Each and every year beginning in 2012, PALMER and 10 PALMER CAPITAL implemented and maintained peer review grading of each employee twice 12 per annum. In these peer review gradings, RYAN was consistently ranked high in most categories. RYAN received grading in the one hundredth percentile (100%) in evaluation criteria categories 13 such as "focus" and "initiative." 14 15 50. Though it does not impact PALMER or PALMER CAPITAL's statutory obligations owed to RYAN, PALMER CAPITAL was approved for a Paycheck Protection 16 17 Program ("PPP") loan from Bank of the West on April 15, 2020. Companies may only have the PPP loans forgiven if they meet certain criteria, including not laying off employees during a period 18 covered by the loan. The paychecks of RYAN and at least two other production employees at 19 PALMER CAPITAL were not '*protected" as Congress intended after PALMER and PALMER 20 CAPITAL accepted the very generous federally sponsored loan funds in the amount of $566,802. 21 51. During the times relevant hereto, PALMER and PALMER CAPITAL acted overtly 22 and conspicuously with fraud, oppression, and malice against, and towards, RYAN. 23 52. Labor Code, section 558.1(a) reads: "Any employer or other nerson acting on 24 25 bohulf vl'un vmplvyvr, who violutcs, vr cuuucs to bo vlolutott, ruty proviuivn tcguluting minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, 26 or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, mav be held liable as 27 the emnlover for such violation." (Emphasis added.) Further, Labor Code, section 558.1(b) reads: 28 14 COMPLAINT FOR DAMAGES & RESTITUTION "For purposes of this section, the term "other person acting on behalf of an employer" is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term 'managing agent'as the same meaning as in subdivision (b) of Section 3294 of the Civil Code." 53. Pursuant to Labor Code, section 558.1, PALMER must be held personally liable for all such violations complained of herein pursuant to Labor Code, sections 203, 226, and 1194. 54. In addition to provisions of the Labor Code, PALMER must also be held personally liable for all such violations complained of herein because PALMER CAPITAL is merely the alter-ego of PALMER. PALMER has continuously used PALMER CAPITAL for his own 10 personal and unjust enrichment. Therefore, PALMER must be held personally liable for all the actions he performed for himself and for all the actions he performed in the name of PALMER 12 CAPITAL. 13 55. PALMER's full dominion and control of, as well as his misuse of, PALMER 14 15 CAPITAL's resources for his own personal uses, such as personal use of the LEAR 45XR and Hawker jet airplanes and appropriation ofother corporate assets and resources for his own personal 16 use, will be demonstrated and fully proven at a trial before a sworn jury. As such, PALMER must 17 18 19 be held personally liable for all violations of law complained of herein by RYAN. 56. Leading up to PALMER's wrongful discharge of RYAN from employment with PALMER CAPITAL, PALMER directed RYAN to consult with a labor attorney at RYAN's sole 20 cost and expense concerning matters of wage and hour regulations. 21 57. Apparently realizing that PALMER and PALMER CAPITAL's policies and 22 mandates to employees were not lawful nor appropriate, PALMER then immediately changed 23 course and then directed RYAN not to meet with a labor attorney and instead quickly told RYAN to justify to pALMER why pALMER should not firn RYAN without any just causo nor logical 25 reason. 26 27 58. RYAN had been protesting the unlawful demands by PALMER to work more than eight hours per day at PALMER CAPITAL without overtime compensation and to be forced to 28 IS COMPLAINT FOR DAMAGES & RESTITUTION log these hours in a mechanical way in violation of California law. PALMER was also unlawfully demanding and requiring the RYAN return from the gym on most days to come to the office to perform uncompensated additional work. 59. In an incredulous manner, PALMER was disgruntled by RYAN's reasonable and lawful protest. In an impulsive short, few moments PALMER summarily and wrongfully discharged RYAN via email stating that PALMER personally "decided to terminate your employment effective 11/17/20." 60. In a cowardly fashion, PALMER hid behind a keyboard from the confines of his mansion and in an unsanctimonious fashion PALMER abruptly ended RYAN's career that RYAN 10 had devoted the majority of his time, efforts, and passion towards for almost seventeen and a half (17.5) years. All the while, PALMER still maintained the luxuries of a mansion, access to private 12 aircraft, and opulent travel and having been bestowed upon him a Congressionally sponsored, 13 14 emergency PPP loan for the purpose of preserving the employment of PALMER and PALMER CAPITAL's employees, such as RYAN, in the amount of $566,802. 15 JURISDICTION AND VENUE 16 61. The Superior Court of the State of California, in and for the County of Placer has 17 18 original jurisdiction over RYAN's claims for unpaid wages, penalties, and other forms of relief sought herein under, inter alia, Industrial Welfare Commission Wage Order No. 4, Title 8 of the 19 California Code of Regulations, California Labor Code, sections 203, 226, 227.3, 510, 1174, 1194, 20 1198, and California Code of Civil Procedure, section 1021.5. 21 22 62. The Superior Court of the State of California, in and for the County of Placer also has original jurisdiction over RYAN's claims for injunctive relief and restitution of ill-gotten 23 24 25 26 benefits arising from PALMER CAPITAL and PALMER*s unfair, unlawful and/or fraudulent Isusincss pracuccs unricr California IIusincss & I'rvfcssinns Curie, sccriuns 17200, c! sar/. 63. The Superior Court of the State of California, in and for the County of Placer also has original jurisdiction over RYAN's claims for wrongful discharge and breach of implied 27 28 16 COMPLAINT FOR DAMAGES & RESTITUTION covenant of good faith and fair dealing arising from PALMER CAPITAL and PALMER's unlawful conduct and discharge of RYAN pursuant to well-established California law. 64. Venue as to Defendants is proper within the judicial district for the Superior Court of the State of California, in and for the County of Placer pursuant to California Code of Civil Procedure, section 395(a). Defendants operate a for-profit business within Placer County, transact business, have agents, and are otherwise within this Court's jurisdiction for purposes ofjurisdiction and service of process. The unlawful acts alleged herein were last committed and perpetrated by PALMER against RYAN within the State of California, in and for the County of Placer. The unlawful acts alleged herein have a direct effect on Plaintiff, and other persons similarly situated, 10 within the State of California, in and for the County of Placer. 12 65. Notwithstanding that the Superior Court of the State of California, in and for the County of Placer has original jurisdiction over all of RYAN's claims complained ofherein, RYAN 13 signed an "Account Executive Employment Agreement" effective February 27, 2005, with an 14 "Agreement to Arbitrate" provision contained within it. A copy of the Account Executive 15 Employment Agreement with the Agreement to Arbitrate provision is attached hereto this 16 Complaint as Exhibit A. 17 66. Assuming the enforceability of the Agreement to Arbitrate provision of the Account Executive Employment Agreement, then adjudicative jurisdiction and venue with respect to 19 PALMER CAPITAL could properly be with an "Arbitrator" with the American Arbitration 20 Association under the currently applicable "Employment Arbitration Rules and Mediation 21 Procedures." 22 67. Pursuant to the Employment Arbitration Rules and Mediation Procedures, Rule 23 6(a) reads: "The arbitrator shall have the power to rule on his or her own jurisdiction, including 24 25 any ohjcotionx with roxpoct to tlto oxixtoncr, xcopo or vuliuity of tlto arhitruiion nurccmcnt." (Rutcx and Mediation Procedures, p. 12.) 26 68. However, pursuant to an email from PALMER's attorney, Ms. Cassandra 27 Ferrannini of the law firm of Downey Brand, LLP (under the supervision of her managing partner, 28 17 COMPLAINT FOR DAMAGES & RESTITUTION 10 12 13 14 15 16 17 19 20 21 22 23 Mr. Bill Warne), on or about May 14, 2021 it has been expressed that PALMER and PALMER CAPITAL both would prefer to disregard and waive the Agreement to Arbitrate provision and would instead prefer to litigate any and all claims in the Superior Court of the State of California, in and for the County of Placer with respect to RYAN. The email also reveals that PALMER and/or PALMER CAPITAL intend to seek, or otherwise pursue, undefined and retaliatory crossclaims against RYAN within the Superior Court of the State of California, in and for the County of Placer venue. It was further stated that PALMER "is also looking forward to defending any employment action filed by [...] RYAN within the same forum.*'9. Assuming the veracity of the above referenced email and the capacity of the sender acting with the power of attorney on behalf of PALMER and PALMER CAPITAL, then the email sent by the Downey Brand attorney on behalf of PALMER and PALMER CAPITAL serves to fully restore the original jurisdiction of all of RYAN's claims fully and rightfully back to the Superior Court of the State of California, in and for the County of Placer. By this email it appears that PALMER and PALMER CAPITAL have fully waived, with the advice and consent of highly compensated legal counsel, any agreement to arbitrate with respect to PALMER CAPITAL. PALMER is not a party to any agreement to arbitrate and therefore any claims against him have always remained within the jurisdiction of the Superior Court of the State of California, in and for the County of Placer. 70. Pursuant to Code of Civil Procedure, section 1281.2(a) arbitration cannot be compelled upon RYAN nor PALMER CAPITAL because "[t]he right to compel arbitration has been waived by...*'ALMER CAPITAL Accordingly, jurisdiction and venue are proper as to both PALMER and PALMER CAPITAL with the Superior Court of the State of California, in and for the County of Placer. 25 26 27 28 18 COMPLAINT FOR DAMAGES & RESTITUTION I CLAIMS FOR RELIEF FIRST CAUSE OF ACTION (UNLAWFUL FAILURE TO PAY OVERTIME WAGES - VIOLATION OF LABOR CODE, SECTIONS 510, 1194, and 1198 - AGAINST ALL DEFENDANTS) 71. RYAN hereby incorporates and re-alleges by this reference, as though fully set forth herein, paragraphs I through 70 of this Complaint. 72. RYAN performed work for PALMER CAPITAL and PALMER. 73. RYAN worked overtime hours for PALMER CAPITAL and PALMER. 74. PALMER CAPITAL and PALMER knew, or should have known, that RYAN had worked overtime hours. 10 75. PALMER CAPITAL and PALMER did not accurately calculate the rate of RYAN's compensation during his employment. 12 76. RYAN was not paid, or paid less than, the overtime rate for all, or some of, the 13 overtime hours worked. 14 77. The amount of overtime pay owed will be established and proven at trial. 15 16 17 18 19 20 21 22 23 24 25 26 27 78. California Labor Code, section 510(a) provides: 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 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-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 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 no less than twice the regular rate of pay of an employee. 79. Moreover, California Labor Code, section 1194(a) provides: Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime 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 compensation, including interest thereon, reasonable attorney's fees, and costs of suit. 80. Finally, California Labor Code, section 1198 provides: The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of I9 COMPLAINT FOR DAMAGES & RESTITUTION any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful. 81. Since RYAN was hired by PALMER in 2003, RYAN was required to work well in excess of eight (8) hours in a workday and/or forty (40) hours in a workweek. The minimum requirement of workhours that PALMER demanded and strictly required of RYAN was sixty (60) hours per workweek from 2003 to 2013. The minimum requirement of workhours that PALMER demanded of RYAN was fifty-five (55) hours per workweek from 2013 to 2020. The precise number of overtime hours will be proven at trial. 82. During the time period of RYAN's employment, Defendants refused to compensate 10 RYAN for some and/or all of the wages (including overtime wages) earned, in violation of the applicable California Wage Order, Title 8 of the California Code of Regulations and the relevant provisions of the California Labor Code. 12 83. At all relevant times, Defendants were aware of, and were under a duty to comply 13 with, the wage and overtime provisions of the California Labor Code, including, but not limited to 14 California Labor Code, sections 200, el seq., 510, 1194, and 1198. 15 84. By refusing to properly compensate RYAN for wages earned, either at his regular 16 rate(s) of pay and/or at his applicable overtime rate(s) of pay, Defendants unlawfully violated the 17 18 California Labor Code, as well as Title 8 of the California Code of Regulations and the applicable I WC Wage Order. 19 85. As a direct and proximate result of Defendants'nlawful and violative conduct, as 20 set forth herein, RYAN has sustained damages, including loss of earnings for hours worked, 21 including overtime hours worked, on behalf of Defendants, in an amount to be established and 22 proven at trial. Pursuant to statute, RYAN is entitled to recover interest thereon, attorneys'ees, 23 and costs of suit. For jurisdictional as well as notice and due process purposes, RYAN hereby 25 ullasas un astimutad ol amount oi unlsuid ovatsimo wugas dumugos that ha will ha tnttitlad to is not less than $5,315,390.00. 26 27 20 COMPLAINT FOR DAMAGES & RESTITUTION 1 SECOND CAUSE OF ACTION (UNLAWFUL FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS - VIOLATION OF LABOR CODE, SECTIONS 226 and 1174 - AGAINST ALL DEFENDANTS) 86. RYAN hereby incorporates and re-alleges by this reference, as though fully set 10 12 13 14 15 16 17 18 forth herein, paragraphs 1 through 85 of this Complaint. 87. California Labor Code section 226 a r( ) p ovides: An employer, semimonthly or at the time ofeach payment of wages, shall furnish to his or her employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately if wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except as provided in subdivision (j), (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate 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 only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer... Moreover, California Labor Code, section 226(e)(1) provides: An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($ 100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees. 19 20 21 22 23 25 89. Finally, California Labor Code, section 1174(d) provides: Every person employing labor in this state shall: Keep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments. These records shall be kept in accordance with rules established for this purpose by the commission, but in any case, shall be kept on file for not less than three years. An employer shall not prohibit an employee from niatntaining a personal record ot hours worKed, or, it paid on a piece-rate basis, piece-rate units earned. 26 27 28 21 COMPLAINT FOR DAMAGES & RESTITUTION 90. PALMER and PALMER CAPITAL's wage statements provided to RYAN did not accurately reflect or differentiate between the hours RYAN worked. As a result, RYAN's wage statements were inaccurate and in violation of the Labor Code. 91. RYAN also reasonably believes and therefore alleges that PALMER and PALMER CAPITAL's wage statements provided to him also failed to accurately reflect the correct levels of compensation which he was owed in violation of the Labor Code. 92. PALMER and PALMER CAPITAL are liable to RYAN for the amounts statutorily prescribed and described in Labor Code, section 226(e) with interest thereon, and PALMER and PALMER CAPITAL should be enjoined from any further violation of the requirements of Labor 10 Code, section 226. 93. As a direct and proximate result of Defendants'nlawful and violative conduct, as 12 set forth herein, and pursuant to statute, RYAN is entitled to recover penalties, in an amount to be 13 14 established and proven at trial in the amount of the statutory aggregate penalty of four thousand dollars ($4,000), as well as attorneys'ees and costs. 15 16 17 THIRD CAUSE OF ACTION (UNLAWFUL FAILURE TO PAY VESTED VACATION WAGES - VIOLATION OF LABOR CODE, SECTION 227.3 - AGAINST ALL DEFENDANTS) 94. RYAN hereby incorporates and re-alleges by this reference, as though fully set 18 forth herein, paragraphs I through 93 of this Complaint. 19 95. Under California law, once an employee accrues vacation time ("Vested Vacation" 20 21 or «PTO"), that time is treated as compensation and cannot be forfeited without compensation. Pursuant to California Labor Code, section 227.3, accrued but unused vacation time, or PTO, 22 constitutes "wages*'hat must be paid to the employee at the employee's regular rate of pay at the 23 24 25 26 27 28 time of termination. Employers in California are statutorily prohibited from adopting policies that rcquirc I'orfciturc of Vcstctt Vucutioo timra or I'TO, without compensation. 96. California Labor Code, section 227.3 provides: Unless otherwise provided by a collective-bargaining agreement, whenever a contract ofemployment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him 22 COMPLAINT FOR DAMAGES & RESTITUTION 97. as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness. PALMER CAPITAL and PALMER's PTO policy constituted a Vested Vacation 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 time policy subject to Labor Code, section 227.3. 98. RYAN had accrued, but unused, Vested Vacation time, or PTO, upon his termination from employment with PALMER CAPITAL and PALMER, but PALMER CAPITAL and PALMER have failed and willfully refused to pay RYAN the value of that time upon his termination. Accordingly, PALMER CAPlTAL and PALMER have violated California Labor Code provisions including, but not limited to, sections 201, 202, and 227.3. 99. RYAN is statutorily entitled to recover unpaid wages for all unused Vested Vacation time, or PTO. The amount and compensable value of all unused Vested Vacation time wages accrued and owing to RYAN will be established and proven at trial. For jurisdictional as well as notice and due process purposes, RYAN hereby formally alleges an estimate of the principal amount of Vested Vacation time wages damages that he will be entitled to is not less than $95,280.00. FOURTH CAUSE OF ACTION (UNLAWFUL FAILURE TO PAY WAGES UPON TERMINATION - VIOLATION OF LABOR CODE, SECTION 203 - AGAINST ALL DEFENDANTS) 100. RYAN hereby incorporates and re-alleges by this reference, as though fully set forth herein, paragraphs 1 through 99 of this Complaint. 101. RYAN's employment with PALMER CAPITAL and PALMER ended on or about November 17, 2020. 102. PALMER CAPITAL and PALMER failed to pay RYAN all wages owed to him when due. 103. PALMER CAPITAL and PALMER willfully failed and wrongfully refused to pay RYAN these wages. 28 23 COMPLAINT FOR DAMAGES & RESTITUTION 104. The date upon which RYAN's wages were due will be established and proven at trial as November 17, 2020. 105. RYAN's daily wage rate at the time his employment with PALMER CAPITAL and PALMER ended will be established and proven at trial. 106. PALMER CAPITAL and PALMER never paid RYAN all wages due; therefore, there is no date on which PALMER CAPITAL and PALMER ever finally paid RYAN all wages 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 due and owing to him. 107. California Labor Code, section 201(a) provides: If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. 108. California Labor Code, section 203(a) provides: If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6, 201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents themselves to avoid payment to them, or who refuses to receive the payment when fully tendered to them, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which the employee so avoids payment. 109. Moreover, California Labor Code, section 203(b) provides: Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise. 110. RYAN was employed by PALMER CAPITAL and PALMER from 2003 until 2020 and was involuntarily terminated from his position by PALMER, yet he was not paid all wages due upon said termination of employment from PALMER CAPITAL nor PALMER. Said non- payment was the direct and proximate result of a willful refusal to do so by PALMER CAPITAL and by PALMER. 111. Signincuntly morc thun thiity (30) days have clupucd since RYAhi wus involuntarily terminated unilaterally by PALMER from PALMER CAPITAL and PALMER's employ. 28 24 COMPLAINT FOR DAMAGES & RESTITUTION 112. As a direct and proximate result of PALMER CAPITAL and PALMER's willful conduct in failing to pay RYAN for all hours worked, RYAN is entitled to recover "waiting time'* penalties of up to thirty (30) days'ages pursuant to California Labor Code, section 203 in an amount to be established and proven at trial together with interest thereon, and attorneys'ees, and costs. 10 12 13 14 15 16 17 18 19 20 113. To date, PALMER CAPITAL and PALMER continue to willfully fail and wrongfully refuse to pay RYAN all wages that remain due and owing to him. As a result, PALMER and PALMER CAPITAL are, and continue to remain, liable to RYAN for the statutory waiting time penalties provided under the Labor Code, together with interest thereon. For jurisdictional as well as notice and due process purposes, RYAN hereby formally alleges an estimated amount of waiting time penalties damages that he will be entitled to is not less than $32,162.40. FIFTH CAUSE OF ACTION (UNLAWFUL FAILURE TO REIMBURSE EXPENSES - VIOLATION OF LABOR CODE, SECTION 2802 - AGAINST ALL DEFENDANTS) 114. RYAN hereby incorporates and re-alleges by this reference, as though fully set forth herein, paragraphs I through 113 of this Complaint. 115. Labor Code, section 2802(a) provides that an "employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful." 21 22 23 116. During the relevant time period, RYAN worked for, and was an employee of, PALMER CAPITAL and PALMER. RYAN was employed as a real estate salesperson by and for PALMER CAPITAL and PALMER. 24 25 26 27 28 1 17. During thc rclcvant time pcrivtl vi RYAN's cmploymcnt with PALMER CAPITAL and PALMER, RYAN expended thousands of dollars from his own personal funds in furtherance of his job requirements as strictly directed by PALMER. RYAN notified PALMER CAPITAL and PALMER of the expenses that RYAN had personally incurred in necessary furtherance of his 25 COMPLAlNT FOR DAMAGES & RKSTlTUTtON employment. PALMER CAPITAL and PALMER have failed to reimburse RYAN for all his necessary expenses (or losses) that he incurred through the course of his employment, despite the fact that the expenses were necessarily made for RYAN to have performed in direct consequence of the discharge of RYAN's duties for the benefit of, and on behalf of, PALMER CAPITAL and PALMER. 118. By refusing to indemnify RYAN for all necessary expenditures (or losses) incurred by him in direct consequence of the discharge of his duties for the benefit of, and on behalf of, PALMER CAPITAL and PALMER, Defendants unlawfully violated Labor Code, section 2802. 119. As a direct and proximate result of PALMER CAPITAL and PALMER's unlawful, 10 12 willful, and violative conduct, as set forth herein, RYAN has sustained damages from incurring necessary expenditures (or losses), including the loss of money expended in discharge ofhis duties on behalf of PALMER CAPITAL and PALMER, in an amount currently estimated to be 13 14 approximately $ 10,000.00, and to be established and proven at trial; pursuant to Labor Code, sections 2802(b) and (c), RYAN is entitled to recover interest thereon, attorneys* fees, and costs 15 of suit. 16 17 SIXTH CAUSE OF ACTION (UNLAWFUL AND WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY - AGAINST ALL DEFENDANTS) 18 19 120 forth herein RYAN hereby incorporates and re-alleges by this reference, as though fully set paragraphs I through 119 of this Complaint. 20 21 121. RYAN was employed by PALMER CAPITAL and PALMER. 122. PALMER CAPITAL and PALMER discharged RYAN. 22 23 24 25 26 27 28 123. Government Code, section 510(a) provides: 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 workweek and the first eight hours worked on the seventh nay ui'work in any une workweek shall be eutnpensatetI ru the rene of no less than one and one-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 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 no less than twice the regular rate of pay of an employee. 26 COMPLAINT FOR DAMAGES & RESTITUTION 124. 125. Government Code, section 1198 provides: The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful. PALMER's continuous and longstanding demands that RYAN continue to allow 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 l4 25 26 PALMER and PALMER CAPITAL to violate wage and hour laws against him by demanding RYAN to work more than eight (8) hours per day at PALMER CAPITAL without overtime compensation and PALMER forcing RYAN to log all these hours in a mechanical way in violation ofCalifornia law and RYAN's refusal to continue engage in these unlawful demands by PALMER for PALMER and PALMER CAPITAL's unjust enrichment were substantial motivating reasons for RYAN's wrongful discharge at PALMER CAPITAL by PALMER. 126. RYAN was harmed. 127. PALMER CAPITAL and PALMER's continued and unlawful employment practices, including the above-described wage theft, were a substantial factor in causing RYAN's harm. 128. PALMER CAPITAL and PALMER's discharge of RYAN was a substantial factor in causing RYAN's harm. 129. At the time of PALMER CAPITAL and PALMER's wrongful discharge of RYAN, he was being paid a salary in the amount of $250,000.00 per annum. 130. At the time of PALMER CAPITAL and PALMER's wrongful discharge of RYAN, he was entitled to a previously established "incentive fee" in the amount of $60,000.00 for the year 2020 as set forth in writing by PALMER within an email dated December 26, 2019. 131. Prior to the time of PALMER CAPITAL and PALMER's wrongful discharge of RYAN, he was previously paid a bonus in the amount of $45,000.00 for the year 2019 as a direct result of RYAN's steadfast commitment and hard work in making significant contributions to PALMER and PALMER CAPITAL's economic enrichment. 27 28 27 COMPLAINT FOR DAMAGES & RESTITUTION 10 11 12 13 14 15 16 17 19 20 21 22 23 25 26 27 28 132. For jurisdictional as well as notice and due process purposes, RYAN hereby formally alleges an estimated amount of wrongful discharge damages that he will be entitled to is not less than $2,000,000.00. Given that PALMER and PALMER CAPITAL's violations of fundamental principles and of public policy is repugnant, RYAN is entitled to recover further penalties, in the form of special, exemplary, and punitive damages in an amount to be set forth, established, and considered by the jury at trial, as well as attorneys'ees and costs. 133. PALMER and PALMER CAPITAL are both equally liable to RYAN for the harm suffered by RYAN as a result of the wrongful discharge of RYAN's employment with PALMER CAPITAL by the acts of, and at the sole direction of, PALMER. SEVENTH CAUSE OF ACTION (BREACH OF IMPLIED COVENENANT OF GOOD FAITH AND FAIR DEALING- AGAINST ALL DEFENDANTS) 134. RYAN hereby incorporates and re-alleges by this reference, as though fully set forth herein, paragraphs I through 133 of this Complaint. 135. In an email sent from PALMER to RYAN establishing RYAN's annual pay for the year of RYAN's wrongful discharge (2020), PALMER expressly stated to RYAN that: "you are an important member of [the company] and we look forward to working with you in 2020." As will be further demonstrated at trial, RYAN*s contributions to PALMER and PALMER CAPITAL's economic enrichment were substantial and RYAN was an important employee due to his productivity and hard work. This is merely one illustrative and contextual example of how PALMER and PALMER CAPITAL violated the covenant of good faith and fair dealing against RYAN. Other examples will be demonstrated and establish at trial. 136. "In every contract, there is an implied promise that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract." (Cazzzanalc v. I'raclcra dt Gczzcz al Inz. Czz. (i 958) 50 Cak2zt 654, 658.) 137. RYAN and PALMER and PALMER CAPITAL entered into an employment relationship. 138. RYAN was employed by PALMER and PALMER CAPITAL. 28 COMPLAINT FOR DAMAGES & RESTITUT1ON 139. RYAN adequately, substantially, and fully performed his job duties, unless for any reason RYAN's performance was excused. 140. All conditions required for RYAN's performance had occurred or were otherwise excused. 141. PALMER and PALMER CAPITAL purposefully and maliciously prevented RYAN from receiving the benefits under the contract by wrongfully discharging RYAN and frustrating RYAN's ability to fully perform at his career potential. 142. By doing so, PALMER and PALMER CAPITAL did not act fairly and in good faith toward RYAN. 10 12 143. PALMER and PALMER CAPITAL discharged RYAN. 144. RYAN was harmed by PALMER and PALMER CAPITAL's conduct. 145. PALMER and PALMER CAPITAL's economic enrichment due to the hard work 13 14 of RYAN has been significant and RYAN's harm and damages due to PALMER and PALMER CAPITAL's conduct has been substantial. 15 16 17 18 19 20 21 22 23 25 26 27 28 146. For jurisdictional as well as notice and due process purposes, RYAN hereby formally alleges an estimated amount of breach of implied covenant of good faith damages that he will be entitled to is not less than $2,000,000.00. Given that PALMER and PALMER CAPITAL's violation complained of herein this cause of action is founded in contract, RYAN is entitled to recover further damages in the form of attorneys'ees and costs. EIGHTH CAUSE OF ACTION (UNFAIR BUSINESS PRACTICES - VIOLATION OF BUSINESS & PROFESSIONS CODE 17200, er seq. - AGAINST ALL DEFENDANTS) 147. RYAN hereby incorporates and re-alleges by this reference, as though fully set forth herein, paragraphs I through 146 of this Complaint. 148. Crrlil'vrnia Ousinoos & prulvsoivns Curio, sooiiuns I 7200, or *oq. provirto iho statutory framework for enforcement against unfair business practices within the State of California and California Business & Professions Code, section 17200 provides: As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and 29 COMPLAINT FOR DAMAGES & RESTITUTION 10 12 unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter I (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code. 149. California Business & Professions Code, section 17203 provides: Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court 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 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, real or personal, which may have been acquired by means of such unfair competition. Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attorney, or city prosecutor in this state. 150. RYAN further brings this cause of action seeking statutory relief to seek restitution of the amounts PALMER CAPITAL and PALMER acquired through the unfair, unlawful, and 13 fraudulent business practices described herein. 14 151. RYAN reasonably believes, and therefore alleges, that PALMER and PALMER 15 16 CAPITAL failed to properly compensate him for his employment earnings, as well as other PALMER CAPITAL employees, in an attempt to gain an unlawful competitive advantage in the 17 marketplace and in knowing violation of the laws of the State of California. 18 152. PALMER CAPITAL and PALMER's knowing conduct, as alleged herein, 19 constitutes an unlawful and/or fraudulent business practice, as set forth in California Business & 20 21 Professions Code, sections 17200-17208. Specifically, PALMER CAPITAL and PALMER conducted business activities while failing to comply with the legal mandates cited herein this 22 Complaint, including, but not specifically limited to: 23 a. Unlawful failure to pay overtime wages (Labor Code, sections 510, 1194, and 24 I 198); 25 26 27 b. Unlawful failure to provide accurate itemized wage statements (Labor Code, sections 226 and 1174); c. Unlawful failure to pay vested vacation wages (Labor Code, section 227.3); 28 30 COMPLAINT FOR DAMAGES & RESTITUTION d. Unlawful failure to pay wages upon termination (Labor Code, section 203); e. Unlawful failure to reimburse expenses (Labor Code, section 2802); and f. Unlawful and wrongful discharge (Yau v. Allen (2014) 229 Cal.App.4th 144, 154 ("The elements of a claim for wrongful discharge in violation of public policy are (I) an employer-employee relationship, (2) the employer terminated the plaintiffs employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.").) 153. The violations ofthe above referenced laws and legislatively declared policies that 10 they implement serve as predicate 'unlawful" and "unfair" acts and practices under California Business & Professions Code, sections 17200, er seq. 12 154. PALMER CAPITAL and PALMER have clearly demonstrated and established a policy ofaccepting a certain amount ofcollateral damage, as represented by the damages to RYAN 13 14 15 herein alleged, as incidental to its business operations, rather than accept the alternative costs of full compliance with fair, lawful, and honest business practices, ordinarily borne by its responsible competitors and as set forth in legislation and the judicial record of the State of California. 16 17 155. RYAN has been injured, exploited, and sustained an actual monetary loss as a direct and proximate consequence of PALMER and PALMER CAPITAL's violations of law and 18 legislative policy. As an employee of PALMER and PALMER CAPITAL, RYAN is covered as a 19 protected class of person for whose benefit the laws referenced above were enacted, and RYAN 20 has suffered the very harms and forms ol'exploitation that those laws were intended to avoid. 21 156. The acts and practices of PALMER and PALMER CAPITAL alleged of and 22 described above constitute fraudulent business acts and practices within the statutory meaning of 23 California Business & Professions Code, sections 17200, er seq. As alleged above, PALMER and 24 25 26 27 PALMER CAPITAL regularly and routinely engaged in deceptive practices with respect to RYAN, as well as other employees, including the failure to provide material information regarding compensation and providing misstatements regarding those accounts related to work status and employment classification. 31 COMPLAINT FOR DAMAGES & RESTITUTION 157. As a direct and proximate result of the acts, omissions, and practices described herein this Complaint, PALMER and PALMER CAPITAL have received, and continue to hold, ill-gotten gains and unjust profits, consisting of wages rightfully and lawfully earned by and ultimately belonging to RYAN and other employees. PALMER. and PALMER CAPITAL have gained an unlawful and unfair advantage over their competitors who obey the laws of the State of California and properly and justly pay their employees for the work that they perform, and at the appropriate rate of pay for overtime worked. Both PALMER and his corporation PALMER CAPITAL, wholly owned by PALMER, have been unjustly enriched as a proximate result of the acts, omissions, and practices described herein this Complaint. Additionally, the State ofCalifornia 10 and the public (the "People") have been harmed because PALMER and PALMER CAPITAL have improperly withheld payments from RYAN's earned overtime wages and failed to process those 12 13 payments to the proper governmental authorities (i.e., Internal Revenues Service, United States Department of the Treasury, and California Franchise Tax Board). 14 158. Upon information and belief, it is further alleged that PALMER and PALMER 15 CAPITAL have continued these practices, even after being notified and advised in writing that 16 17 these acts were, and still are, unlawful and contrary to public policy of the State of California. The continuing, blatant, and serious nature of PALMER and PALMER CAPITAL's conduct presently warrants intervention for restitution by the Superior Court of the State of California, in and for the 19 County of Placer. 20 159. Appropriate equitable relief should be ordered and awarded in favor of RYAN so 21 as to ensure restoration to him of all amounts withheld from him by PALMER and PALMER 22 23 CAPITAL and to deter and prevent further violations by Defendants, and to preclude Defendants from profiting from their unlawful and unscrupulous behavior that is contrary to the laws of the 24 Stato of California aa prvvidvd within Canfornia l3vsincss & Prvaossivns Code, soctivns 17203 25 and 17204, including restitution, disgorgement of illicit profits, a full accounting, and equitable 26 estoppel as the Court deems appropriate. 27 28 32 COMPLAINT FOR DAMAGES & RESTITUTION 10 12 13 14 15 16 17 NINTH CAUSE OF ACTION (UNJUST ENRICHMENT - EQUITABLE CLAIM - AGAINST ALL DEFENDANTS) 160. RYAN hereby incorporates and re-alleges by this reference, as though fully set forth herein, paragraphs I through 159 of this Complaint. 161. RYAN conferred upon PALMER and PALMER CAPITAL an economic benefit (financial benefits), generated by the nature of services rendered by performing the duties within in the scope of his employment for the benefit of his employer, for which PALMER and PALMER CAPITAL have refused to legally and adequately compensate pursuant to statute, contribute, nor reimburse. PALMER and PALMER CAPITAL's penultimate act was to wrongly and unjustly terminate RYAN despite his loyalty and productivity throughout the entirety of his vested employment. 162. PALMER and PALMER CAPITAL's financial benefits resulting from its unlawful and inequitable conduct are economically traceable to services rendered, and expenses (or losses) incurred by RYAN for and to PALMER and PALMER CAPITAL. 163. As a matter of equity, PALMER and PALMER CAPITAL have been unjustly enriched at RYAN's expense for the services rendered and for necessary business expenditures (or losses) incurred by RYAN, its employee, in direct consequence of the discharge of his duties for the benefit of PALMER and PALMER CAPITAL. PALMER and PALMER CAPITAL have 18 19 20 21 22 statutory obligations to compensate, contribute, and reimburse RYAN for their enrichment and his expenses. As a matter of right, justice, and equity, PALMER and PALMER CAPITAL should make restitution to RYAN to restore RYAN back to his lawful and equitable position based upon his position as an employee that works at the direction of PALMER, and for the benefit of PALMER and PALMER CAPITAL. 23 24 25 26 164. It would be inequitable and unjust for PALMER and PALMER CAPITAL to be pcnnittcd to rcfuac to lawfully compcnoato and properly rcimburac RYAN lor his cxpcnxcx (or losses) incurred as a direct result of the discharge of his employment duties for, and on behalf of, PALMER and PALMER CAPITAL. 27 28 33 COMPLAINT FOR DAMAGES & RESTITUTION 165. PALMER and PALMER CAPITAL have been unjustly enriched as a result of their wrongful conduct and violative actions toward RYAN. RYAN is accordingly entitled to equitable relief; including restitution from PALMER and PALMER CAPITAL in an amount to be proven at trial. 5 PRAYER FOR DAMAGES & RELIEF SOUGHT WHEREFORE, RYAN prays for judgment and order(s) against Defendants as follows: 1. That the Court declare, adjudge, determine, and decree that PALMER and PALMER CAPITAL violated the wage (including overtime) provisions of the California Labor Code and the applicable IWC Wage Order as to RYAN and that PALMER and PALMER 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CAPITAL violated California Labor Code, sections 510, 194, and 1198 as to RYAN; 2. That the Court declare, adjudge, determine, and decree that PALMER and PALMER CAPITAL violated the record keeping provisions of California Labor Code, sections 226 and 1174 and the applicable IWC Wage Order as to RYAN, and willfully failed to provide accurate semi-monthly accurate itemized wage statements thereto; 3. That the Court declare, adjudge, determine, and decree that PALMER and PALMER CAPITAL violated the record keeping provisions of California Labor Code, section 227.3 as to RYAN; 4. That the Court declare, adjudge, determine, and decree that PALMER and PALMER CAPITAL violated California Labor Code, section 203 by willfully failing to pay all compensation owed to RYAN at the time of the termination of RYAN's employment for payment of said wages; 5. That the Court make an award to, and judgment for, RYAN for all PTO unlawfully withheld by PALMER and PALMER CAPITAL upon termination of RYAN*s employment; 6. That thc Court dcclarc, adjudge, dctcnninc, and dcrrcc that PALMER and PALMER CAPITAL violated California Labor Code, section 2802 by willfully failing to reimburse RYAN; 28 34 COMPLAINT FOR DAMAGES & RESTITUTION 7. That the Court declare, adjudge, determine, and decree that PALMER and PALMER CAPITAL violated California Business and Professions Code, sections 17200, er seqd 8. That the Court determine and order PALMER and PALMER CAPITAL to pay restitution to RYAN as a result of Defendants'nlawful activities pursuant to California Business and Professions Code, sections 17200-17208; 9. That the Court make an award to RYAN and that the Court order PALMER and 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PALMER CAPITAL to pay restitution to RYAN as a result of PALMER and PALMER CAPITAL's unjust enrichment at the expense of RYAN; 10. For an award and judgment by the Court to be determined in favor of RYAN and every cause of action complained of herein; 11. For RYAN to be awarded compensatory and general damages plus statutory interest according to proof at trial. For jurisdictional as well as notice and due process purposes, RYAN hereby formally alleges an estimate of the amount of general and compensatory damages that he entitled to is not less than $7,456,832.40, comprised of the following: (a) An estimated amount of unpaid overtime wages damages that RYAN will be entitled to is not less than $5,315,390.00; (b) RYAN is entitled to recover statutory aggregate penalty of $4,000.00 for failure to be provided accurate itemized wage statements; (c) An estimated amount of the Vested Vacation time wages damages that RYAN will be entitled to is not less than $95,280.00; (d) An estimated amount of waiting time penalties damages that RYAN will be entitled to is not less than $32,162.40; (c) An estimated amount ol railuro to rcimbursc damages that RYAN will be entitled to is not less than $ 10,000.00; (f) An estimated amount of wrongful discharge damages that RYAN will be entitled to is not less than $2,000,000.00; and will be against PALMER CAPITAL and PALMER (and their agents, DOES I through 10) on each and 28 35 COMPLAINT FOR DAMAGES & RESTITUTION (g) An estimated amount of breach of implied covenant of good faith and fair dealing damages that RYAN will be entitled to is not less than $2,000,000.00. 12. For RYAN to be awarded special damages according to proof at trial; 13. For RYAN to be awarded exemplary and punitive damages; 14. That the Court make an award to RYAN and that the Court order PALMER and 10 12 13 14 15 16 17 18 PALMER CAPITAL to pay restitution to RYAN as a result of PALMER and PALMER CAPITAL's unjust enrichment at the expense of RYAN. 15. For RYAN to be awarded pre- and post-judgment interest on such monetary relief and any and all economic losses at the legal rate according to proof at trial; 16. For RYAN to recover and be awarded his costs of suit, including, but not limited to, expenses made to expert witness(es) and any and all other costs under applicable law; 17. For RYAN to recover and be awarded all his cost of reasonable attorneys'ees and expenses; 18. For all other awards, orders, findings, and determinations identified and sought within this Complaint; and 19. For such other and further relief to be awarded as the Court may deem just, proper, and equitable. JURY DEMAND 19 20 21 RYAN hereby demands a trial by an impartial and dutiful jury of his peers of all issues triable as of by law and right. 22 DATED: June 10, 2021 KDH Law 23 24 25 26 27 Chase A. Meister,"Esq. Attorneys for Plaintiff Richard E. Ryan 28 36 COMPLAINT FOR DAMAGES & RESTITUTION EXHIBIT A ACCOUNT EXECUTIVE EMPLOYMENT AGREEMENT This Employment Agreement (the "Agreement") is made and ciLtered iqto by and between The palmer Team, Inc. (the "palmer Team") and +I clC &vi tittivl ("Account Executive"), effective Pa)sr«aav ~ 1, 200 5 ("Effective Date"). TERM OF EMPLOYMENT 1.1 F.mployment At Will The Palmer Team hereby employs Account Executive and Account Executive hereby accepts employment with the Palmer Team for an unspecified term. Account Executive's employment with the Palmer Team is "at will," which means that either the Palmer Team or Account Executive may terminate the employment at any time with or without any reason. Account Executive acknowledges that no written or oral promises, assurances, or representations, whether express or implied, to the contrary have been made to Account Executive at any time before signing this Agreement. Account Executive acknowledges that only the President of the Palmer Team (the "President") has the authority to make an agreement for any specified period of time or for employment other than at-will and then only in writing. Nothing contained in this Agreement shall modify or amend the at-will employment relationship between Account Executive and the Palmer Team. DUTIES OF ACCOUNT EXECUTIVE 2.1 Duties of Account Executive Account Executive is hereby employed as an Account Executive at The Palmer Team, Inc., located at 555 Capitol Mall 0235, Sacramento, CA 95814. On the Effective Date of this Agreement, Account Executive shall be classified as a sales professional by the Palmer Team. Account Executive shall perform the duties of a licensed salesperson and shall, with minimal supervision, exercise his or her discretion and independent judgment to: ~ Evaluate, counsel and advise clients and prospects of the Palmer Team packages and investment opportunities in the market area of Account Executive's responsibility; ~ Identify, handle and resolve client and prospect problems or issues; ~ Create and develop marketing stories for investment offerings aRer extensive interviews with clients and brokers in local market area; ~ investigate, evaluate anti qualify the iatrrcst lcvcl of investors in btvcstmcttt offerings; ~ Analyze and discuss the acquisition criteria with clients and prospects of the Palmer TeaIII; ~ Develop and present client asset recommendations; SCI 17099034.1 1 of ll PALMER-RYAN 000019 ~ Research, analyze, evaluate and discuss, with other members of the Palmer Team, the market conditions for Account Executive's area of responsibility; ~ Develop marketing and research materials; ~ Engage in marketing and promotional work; ~ Monitor and manage the execution of purchases, sales agreements and the escrow process; ~ Maintain direct contact with clients and prospects of the Palmer Team and other real estate sales professionals both inside and outside of the Palmer Team through telephone contacts, meetings, presentations, relationship development activities and client events; ~ Develop and recommend new methods for improving client services and office operations; be actively and pro-actively involved in the strategic planning for the Palmer Team and its activities and goals; ~ Administer and manage other employees regarding the Palmer Team's projects and activities as assigned by the President; and ~ Assume a strong leadership role on the Palmer Team. 2.2 Devotion of Entire Time Account Executive shall devote Account Executive's full business time and best efforts toward furthering the interests of the Palmer Team, and Account Executive agrees to conduct Account Executive's activities and regulate Account Executive's habits so as to maintain and to increase rather than diminish the good will and reputation of the Palmer Team. The President will periodically evaluate the performance and contribution that Account Executive has made as a member of the Palmer Team. Account Executive's duties will generally require a 56 (fit)y-six) to 60 (sixty) hour workweek. Account Executive's total hours worked will be one factor, among many, that will be considered to evaluate Account Executive's contribution to the Team, Account Executive's overall performance, and Account Executive's compensation enhancements and title promotions as applicable. Account Executive and the Palmer Team agree that it is the intention of both parties to preserve Account Executive's exempt status. Account Executive shall not during this Agreement directly or indirectly negotiate, originate or place any other sales with or through any other broker without the President's prior approval. OBLIGATIONS OF ACCOUNT EXECUTIVE 3.1 Licensing and Qualifications The Palmer Team is licensed under the laws of the various states in which it conducts business to sell or otherwise deal in real estate and maintains office(s) for the operation of a general real estate brokerage business. Scl 17059034 1 2 of 1 1 PALMER-RYAN 000020 Account Executive understands that within three (3) months of the Effective Date of this Agreement, Account Executive shall be duly licensed as a real estate agent, ifnot already licensed, under the laws of the state in which Account Executive is officed. Account Executive shall comply with all terms and conditions under the statutes under which Account Executive is licensed and shall meet all continuing education requirements in compliance with the real estate licensing statutes, Account Executive agrees not to engage in any activities for which a license is required, until Account Executive receives his/her real estate license. 3.2 Codes Of Ethics Account Executive shall abide by all codes of ethics, rules and/or regulations of any real estate board or organization of which Account Executive is a member. 3.3 Disclosure of Material Facts Account Executive agrees that Account Executive shall not make any misrepresentations of, or fail to disclose material facts to any prospective purchasers, sellers, landlords, tenants or other persons, and Account Executive shall use due diligence to verify the accuracy of all facts and information which Account Executive furnishes to such person. No agreements (other than the usual cooperative commission agreements with other brokers) shall be made by Account Executive with brokers or salespeople or any other person or persons not employed by the Palmer Team without the prior written consent of the President. 3.4 Palmer Team's Employee Handbook Account Executive shall read and be governed by the Palmer Team's Employee Handbook in effect as of the date of this Agreement, and any modifications, additions, or amendments thereto (collectively, the "Employee Handbook"). The Employee Handbook is hereby incorporated into this Agreement and shall constitute a part hereof, as though set forth in full. Any change in the Einployee Handbook shall be adopted by the Palmer Team in its sole discretion, without consultation with Account Executive, and shall be effective and constitute an amendment and modification of this Agreement upon receipt by Account Executive of a copy thereof. If there is any conflict between the provisions of this Agreement and the Employee Handbook, the Employee Handbook shall govern. 3.5 Additional Account Executive Duties and Responsibilities The Palmer Team reserves the right to reject or cancel any listing ofproperty it deems unsatisfactory in the Palmer Team's sole discretion. Account Executive shall not obligate the Palmer Team in any way for the purchase or lease of materials, services, real or personal property, or anything else, without first obtaining the consent of the President. SC1 170590343 3 of 1 I PALMER-RYAN 000021 Account Executive shall obtain the President's approval prior to obligating the Palmer Team to pay any fees or charges, including those incurred in connection with the opening of escrows or in the making of title searches. All money or documents received by Account Executive in connection with any transaction of the Palmer Team shall be delivered to the designated person at the Palmer Team immediately. Account Executive shall not actively participate in any public hearing which involves the business of the Palmer Team or its clients without the prior approval of the President. Account Executive shall use only real estate transactional forms in accordance with applicable state law, and shall not engage in the practice of law. All commission agreements to which the Palmer Team is a party shall be made on the Palmer Team approved forms or reviewed by the President prior to execution. 3.6 Indemnification Account Executive agrees to indemnify and hold the Palmer Team (including all of its employees, agents, subsidiary and affiliated entities, benefit plans, benefit plans'ponsors, fiduciaries, administrators, affiliates, and all successors and assigns ol'any of them) harmless from any claims arising out of any dishonest, willful, reckless or grossly negligent act of Account Executive. IV. COMPENSATION 4.1 Salary For the services rendered by Account Executive under this Agreement, Account Executive shall be entitled to compensation with an annual salary, as agreed upon by Account Executive and the President, paid according to the Palmer Team's normal payroll procedures. Account Executive acknowledges that Account Executive's position is an exempt position and Account Executive is not entitled to receive overtime pay. CONFIDENTIALITY 5.1 Definitions The protection of confidential information and trade secrets is essential for the Palmer Team's and its employees'uture security. The Palmer Team is thc owner ofcertain Confidential Information, as defined in this Section, which from time to time may be disclosed to Account Executive in the course of Account Executive's duties. To protect such information, sC I 17059034. i 4ofll PALMER-RYAN 000022 employees of the Palmer Team may not disclose any trade secrets or Confidential Information to any third parties. The term "Confidential Informatioun means any information or material that is proprietary to the Palmer Team, whether or not owned or developed by the Palmer Team, which is not generally known other than by the Palmer Team, and which Account Executive obtained through any direct or indirect contact with the Palmer Team, and includes without limitation: ~ business records and plans ~ financial statements ~ customer lists and records ~ property and ownership information ~ trade secrets ~ tcchnical information ~ products ~ product design information ~ pricing structure ~ discounts ~ costs ~ computer programs and listings ~ copyrights and other intellectual property ~ market information and other proprietary information The term Confidential Information is also further defined in the Palmer Team's Employee Handbook, which has been or will be provided to Account Executive. 5.2 Property Rights Account Executive acknowledges that all forms, documents, periodicals, papers, records, files, computer software, application systems and programs, and other materials prepared or received by Account Executive which pertain to the Palmer Team's business, including letters to Account Executive and copies of letters sent by Account Executive, are the property of the Palmer Team, and shall at all times remain in the Palmer Team's possession and on the Palmer Team's premises. Account Executive further acknowledges that all information, including information in machine readable form (e.g., magnetic disk, magnetic tape, etc.), disclosed to or developed by Account Executive during Account Executive's employment by the Palmer Team relating to the Palmer Team's business, including without limitation, the Palmer Team's listings, the identity of and information concerning potential or actual clients, and specialized techniques developed or used by the Palmer Team (other than disclosure of specific listings in the ordinary course of business) are trade secrets and the exclusive property of the Palmer Team. Account Executive Further agrees tn maintain the confidentiality of such information both during snd sacr rt.ccount Executive's employment with the Palmer Team. Sc1 170saaia 1 5 of 1 I PALMER-RYAN 000023 5.3 Protection of Confidential Information Account Executive understands and acknowledges that the Confidential Information has been developed or obtained by the Palmer Team by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of the Palmer Team, which provides the Palmer Team with a significant competitive advantage. Therefore, Account Executive agrees to hold in confidence and not to disclose the Confidential Information to any person or entity without the prior written consent of the President. Account Executive will not copy or modify any Confidential Information without the prior written consent of the President, Account Executive shall not disclose any Confidential Information to any other person, except those employees of the Palmer Team who are required to have the Confidential Information in order to perform their job duties for the Palmer Team. If it appears that Account Executive has disclosed or has threatened to disclose, or the Palmer Team reasonably believes that Account Executive is about to disclose, any Confidential Information in violation of this Confidentiality Agreement, the Palmer Team shall be entitled to an injunction to restrain Account Executive from disclosing, in whole or in part, the Confidential Information. The Palmer Team shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages. Account Executive agrees that in order to preserve the confidentiality of the Palmer Team's trade secrets and Confidential Information referenced in this Agreement of Confidentiality ("Confidentiality Agreement"), and to protect the proprietary interest of the Palmer Team in its trade secrets and Confidential Information, Account Executive for a period of one year following the termination of Account Executive's employment: (i) will not solicit, on Account Executive's own behalf or on behalf of any other person, firm, company or corporation, any of the clients of the Palmer Team whom Account Executive solicited or with whom Account Executive dealt or became acquainted or whose names became known to Account Executive while Account Executive was employed with the Palmer Team; and (ii) will not solicit for employment, on Account Executive's own behalf or on behalfof any other person, firm, company or corporation, any of the Palmer Team's salespeople, managers or employees, 5.4 Return of Confidential Information Upon the written request of the Palmer Team, Account Executive shall return to the Palmer Team all written materials containing any Confidential Information protected by this Confidentiality Agreement. Account Executive shall also deliver to the Palmer Team written statements signed by Account Executive under penalty of perjury certifying that all materials have been returned and no copies thereof have been retained by Account Executive within five (5) days of receipt of the demand for the return of any Confidential Information. sci 1705903a 1 6ofll PALMER-RYAN 000024 5.5 Consequence of Violation Violation of any of the provisions of this Section 5 by Account Executive will result in swift remedial action by tbe Palmer Team, including but not limited to, the filing of civil claims for damages and injunctive relief to the fullest extent of the law, including without limitation, compensatory and punitive damages, attorney's fees, and costs. 5.6 Application Of Provisions The provision of this Paragraph 5 shall survive the termination of Account Executive's employment with the Palmer Team. VI. CONFLICTS 6.1 Conflicts With Parties Other Than The Palmer Team In the event any transaction in which Account Executive is involved results in a dispute, litigation, settlement, compromise, judgment or any other legal expense with parties other than the Palmer Team: (i) Account Executive shall cooperate with the Palmer Team; (ii) the Palmer Team reserves the exclusive right to determine whether or not any litigation or dispute shall be prosecuted, defended, compromised or settled, and also the exclusive right to determine the terms and conditions of any compromise or settlement and whether or not legal expenses shall be incurred; (iii) Account Executive shall have no authority to institute any legal action in connection with any transaction without the express tsTitten consent of the President; and (iv) in the event it becomes necessary for Account Executive to defend any legal or disciplinary action brought against Account Executive which in any way relates to Account Executive's activity with the Palmer Team, Account Executive shall immediately notify the President thereof before underlaking such defense and shall cooperate fully with the Palmer Team in defending such action so that the Palmer Team's interests, including without limitation its reputation and good name, will be fully protected. Notwithstanding anything in this Section 6.1 to the contrary, the Palmer Team does not waive any claim it may have against Account Executive for conduct which would give rise to liability. 6.2 Conflicts With Other Broker Or Salesperson If any dispute arises between Account Executive and any broker other than the Palmer Team or salesperson (whether or not working for The Palmer Team), the Palmer Team, in its sole discretion. shall have the right to settle the dispute and such settlement shall be binding upon Account Executive. SC I 17059034 1 7 of 1 1 PALMER-RYAN 000025 AGREEMENT TO ARBITRATE 7.1 Joint Agreement To Arbitration It is hereby mutually agreed between the undersigned Account Executive and the Palmer Team that any and all disputes between them, including but not limited, to disputes arising out of or relating to Account Executive's employment or the termination of Account Executive's employment, will be subject to resolution only through final and binding arbitration in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (the "AAA"), as modified by applicable law and the terms of this Arbitration Agreement. The AAA's employment rules are available at www.adr.ora. 7.2 Scope of Arbitration The claims covered by this Agreement To Arbitrate ("Arbitration Agreement") include, but are not limited to: contract claims; tort claims; wrongful termination claims; claims of discrimination, harassment or retaliation; wage claims; and claims for violation of any public policy, federal, state or other governmental law, statute, regulation or ordinance. Nothing in this Arbitration Agreement is intended to prohibit Account Executive from filing a claim or communicating with the United States Equal Employment Opportunity Commission (aEEOCa) or the California Department ofFair Employment and Housing (eDFEHe). There are time limitations to file a claim with the EEOC and the DFEH. This is not intended to provide legal advice; however, in most cases, in order to pursue a claim ivith" the EEOC for discrimination under the federal civil rights laws, Account Executive must file a claim within 300 days of the last act ofdiscrimination. In order to pursue a claim with the DFEH under the California Fair Employment and Housing Act, Account Executive must file, in most circumstances, within one year of the alleged unlawful practice. This Arbitration Agreement does not apply to the following claims and disputes: (a) any claim for workers'ompensation benefits; (b) a judicial action by either party for a temporary restraining order or a preliminary injunction pending arbitration; (c) any report to a law enforcement agency regarding conduct believed to be a crime; and (d) disputes concerning Account Executive benefit plans that are covered by ERISA and administered by Employer, including but not limited to Employer's profit sharing and 401(k) Plan. 7.3 Arbitration Procedure A demand for arbitration giving notice of any claim sought to be arbitrated must be filed with AAA within the limitations period established by applicable state law, or if the dispute raises issues that woulil support iedcral jurisdictinn, by applicable federal law. A neutral arbitrator will conduct the arbitration and will be selected in accordance with the AAA cmploymcnt arbitration rules and procedures. The arbitration generally will take place in the city where Account Executive was last employed by the Palmer Team. Account Executive may initiate an arbitration in the city where Account Executive resides at the time of the request for SC1 1705903 C I gofll PALMER-RYAN 000026 arbitration, provided, however, that the Account Executive resides in a state where the Palmer Team maintains an office and the arbitrator has the authority to consider a motion by either party to change the venue of the arbitration and/or arbitration proceedings. The arbitrator has authority to resolve all or portions of the dispute through a summary judgment motion and related proceeding(s). The arbitrator must allow the parties discovery sufficient to adequately arbitrate their claims and defenses, even if the AAA rules and procedures are more restrictive. The arbitrator must render a written arbitration decision that reveals the essential findings and conclusions on which the decision is based. A party's right to appeal the decision is limited to grounds provided under applicable state law or, if the dispute raises issues that would support federal jurisdiction, under applicable federal law. The arbitrator has authority to order all remedies that would be available to the parties if the dispute between them was litigated in state court or, if the dispute raises issues that would support federal jurisdiction, in federal court. Attorneys'ees may be recovered by either party when authorized by contract, statute or law. In statutory claims of discrimination, the arbitrator may award reasonable attorneys'ees (including expert fees) to either party as the prevailing party if it would be entitled to recover such fees in accordance with applicable legal standards in state court or, if the dispute raises issues that would support federal jurisdiction, in federal court. Any such award against Account Executive must comply with the legal standards in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978). 7.4 Fees and Costs In no event will Account Executive be required to pay administrative fees in excess of the fees (if any) which would have been incurred by Account Executive had the dispute(s) arbitrated under this Arbitration Agreement been litigated in state court or, if the dispute raises issues that- would support federal jurisdiction, in federal court. The Palmer Team will be responsible for all administrative fees exceeding such amount. The Palmer Team also will be responsible for paying the arbitrator's hourly fees. The types of costs (as limited herein) for which Account Executive may be responsible include without limitation filing fees, deposition costs, service of process costs, witness fees and transcript costs. The prevailing party in the arbitration is entitled to recover such actual costs that the prevailing party would be entitled to recover in state court or, if the dispute raises issues that would support federal jurisdiction, in federal court. 7.5 Severability/Entire Agreement Should any portion of this Arbitration Agreement be found to be unenforceable, such portion will be severed from this Arbitration Agreement, and the remaining portions shall continue to be enforceable in order to give effect to the parties'ntent to resolve all disputes between them exclusively through arbitration. This Arbitration Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter of this Arbitration Agreement and is subject to modification only through a written instrument executed bv bothpames. SC I 17039034 i 9 of I 1 PALMER-RYAN 000027 7.6 Application of Provisions The provisions of this Arbitration Agreement shall survive the termination of this Agreement. ACCOUNT EXECUTIVE AND THE PALMER TEAM HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR LEGAL RIGHTS TO HAVE DISPUTES BETWEEN THEM DECIDED BY A COURT OR PRESENTED TO A JURY. Account Executive Date z/z.7/05 William S. Palmer President, The Palmer Team, Inc. Date VI I L GENERAL PROVISIONS 8.1 Entire Agreement This Agreement supersedes any and all other agreements, either oral or written, between the parties hereto with respect to the employment of Account Executive by the Palmer Team and contains all of the covenants and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements have been made by either party, or anyone acting on behalfof either party, which are not embodied herein, and that no other agreement, statement or promise outside this Agreement shall be valid or binding, except as stated otherwise herein. 8.2 Terms The Palmer Team and Account Executive agree that as used in the Palmer Team's Employee Handbook, the terms "salesperson" and "employee" shall include Account Executive, e. s tvtodificattons Other than the Palmer Team's Employee Handbook, no modification of this Agreement shall be valid or effective unless it is in writing and signed by both Account Executive and the President. sci 17059034.1 10 of 1 1 PALMER-RYAN 000028 8.4 No Waiver The Palmer Team's failure to insist on Account Executive's strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall relinquishment of any right or power at any time or times be deemed a relinquishment of that right or power for all or any other times. 8.5 Attorney's Fees And Costs Account Executive and the Palmer Team agree that the prevailing party in any action brought to enforce any provision of this Agreement shall be entitled to recover its reasonable attorney's fees and costs incurred. 8.6 Assignability The Palmer Team may assign, negotiate or otherwise transfer any of its interests in and to this Agreement. This Agreement is not transferable by Account Executive. No rights or interest arising therefrom shall be subject to assignment without the President's prior written consent. 8.7 Partial Invalidity If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the Agreemcnt shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. 8.8 Non-Attribution Account Executive and the Palmer Team understand and affirm that this Agreement has been drafled jointly by the parties. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafling to any party. 8.9 Law Governing Agreement This Agreement shall bc construed under the laws of the State of California. BROKER: The Palmer Team, Inc. ACCOUNT EXECUTIVE: Name: William S. Palmer President Name: SC1 1705903 01 11 of 11 PALMER-RYAN 000029