Court:  Superior Court of San Diego

Judge: Thomas P. Nugent

Date:   Pending Petition for Review with the California Supreme Court

Facts & Allegations

Surrex Solutions was a nationwide wide IT recruiting firm, with its headquarters in southern California.  Surrex employed Consulting Service Managers who helped recruit IT professionals and place them with employers.  Consulting Service Managers were paid an average of approximately $60,000 “draw” with the potential to earn commissions.  However, very few persons earned commissions.

Tyrone Muldrow, an ex-Consulting Service Manager, brought a class action lawsuit against his former employer asserting various wage & hour claims, including, among other things, compensation for missed overtime.

Surrex denied all allegations asserting that its Consulting Service Managers were exempt under either the commissioned-employee or the administrative exemption under IWC Wage Order 4

In a published decision, the Court of Appeal affirmed the decision of the trial court classifying these Consulting Service Managers as exempt employees under the commissioned employee exemption.  The Court of Appeal declined to follow federal law, and found that you can be a commissioned-employee even if the majority of employees do not earn commissions, and your commission is based on a convoluted formula that most employees do not understand.

This case is currently pending a petition to the California Supreme Court.  So, stay tuned.

Court: San Diego Superior Court

Judge: Steven R. Denton

Date:   5/21/09

Facts & Allegations

Plaintiff, Jessica Nesbitt, was an employee of Access Nurses, Inc. who recruited traveling nurses.  Jessica Nesbitt, and about 200 other recruiters, were paid a salary and consistently worked more than 8 per day, and frequently missed meal periods.  These traveling nurse recruiters were supervised by a team of 3 people.  Access Nurses did not compensate its recruiters for overtime worked, or for lunch periods they missed.

Jessica Nesbitt, on behalf of herself and all other recruiters, sued Access Nurses and claimed that, based on their job duties, the recruiters were misclassified and were not exempt from the overtime and meal period laws.

Defendant denied all allegations, claiming that the class members were properly classified as “exempt” either under the salesperson exemption or the administrative exemption under the applicable IWC Wage Orders.

Plaintiff Attorney(s): Hogue & Belong

Defense Attorney(s): King & Ballow

Result:  Quarterly payout extending over a 3 year period. 

Court: Superior Court of San Diego County, San Diego

Judge: Ronald S. Prager

Date:  12/4/09

Facts & Allegations

Plaintiffs Joseph Ryan and Eric Leber were lit on fire when a small amount of racing fuel (the “Fuel”) was poured over a small flame in a fire pit (the “Fire Pit”).  Defendant Timothy Bauer poured the Fuel on the Fire Pit.  The Fire Pit did not have any warnings on it and the bottle of Fuel lacked any flame arrestor at the pour spout.  Plaintiffs suffered a combine total of approximately $900,000.00 in past medical expenses due to severe burns.

Timothy Bauer, along with the property manager, property owner, and the various product manufacturers and distributors of the Fuel and Fire Pit were named in the suit. Ryan and Leber claimed that the Fire Pit should have had warnings against using liquid accelerants to start, restart or accelerate fires in the Fire Pit.  Ryan and Leber further claimed that the bottle of Fuel should have had a metal screen (a flame arrestor) at the pour spout of the bottle to prevent any sparks or heat from entering the bottle, resulting in the explosion.  Finally, Ryan and Leber claimed that the property owner and manager breached their duties to the occupants of the real property by failing to inspect the property.

Defendants’ denied all of plaintiffs, claiming that plaintiffs and others were intoxicated at the time of the incident.

Plaintiff Attorney(s): Hogue & Belong

Defense Attorney(s): Pope, Berger & Williams; Grimm, Vranjes, McCormick & Graham LLP; Koeller, Nebeker, Carlson, Haluck, LLP; The Roth Law Firm; and Lewis Brisbois Bisgaard & Smith.

Result:   $250,000.00 against property manager and property owners; $115,000.00 against Fuel distributor; $125,000.00 against Fuel manufacturer; $125,000.00 against Fire Pit manufacturer and retailer; $3,552,075.00 against individual tortfeasor

Court:  Superior Court of San Diego County, San Diego

Judge:  Luis Vargas

Arbitrator: Thomas Neal Thrasher

Date:   7/8/2010

Facts & Allegations

Plaintiff, Deborah Hardison, a lesbian in her late 40s and parts driver, worked in the parts department at the Poway Chrysler Jeep Dodge dealership in Poway, CA, that was owned and operated by Hinkle Automotive Management Company, Inc.  During her employment, she claimed she was subjected to sexual harassment and discrimination by her supervisor, Steven Ausencio, and other employees of the parts department. She was then terminated from her position in February 2008.

Hardison and other witnesses testified that Ausencio regularly called her, “pussy-eater” and “carpet-muncher” and would refer to her as “dyke,” “lesbian,” “man,” “dude,” and “that dude over there.” Hardison claimed Ausencio would flick his tongue up and down suggestively and that he also admittedly simulated masturbation by rubbing his neck and spitting spastically at her feet.

Hardison recounted that Ausencio told her he could “switch her to the other side” if she would just “blow him,” and, “[t]his is a man’s world; if you don’t like it, I can give you your walking papers.” Hardison testified that Ausencio showed her his penis on two occasions and grabbed her from behind in a bear hug and thrust his genital area into her back and buttocks. She alleged other misconduct as well.

Hardison claimed she complained to the general manager about some of the misconduct and that he told her that he would handle the situation and that the very next day, Ausencio ordered Hardison never to go over his head again “or else” and reminded her that everyone in the parts department had his back. Hardison claimed the harassing treatment escalated at that point, and Ausencio issued multiple write-ups to her and eventually terminated her.

Hardison sued Poway CJ, Ausencio, Hinkle Automotive Management Company, Inc. and Wes Hinkle all for sexual harassment and discrimination, based on her sexual orientation, as well as wrongful termination.

Defendant, Poway CJ filed bankruptcy and stayed the action.  Hogue & Belong successfully lifted the bankruptcy stay.  The case was eventually ordered to arbitration.

Defendants’ denied all of Hardison’s allegations, claiming that she had an attendance problem, and was a poor performer.

Plaintiff Attorney(s): Hogue & Belong

Defense Attorney(s): Christopher C. Hoffman & Megan C. Winter, Fisher & Phillips, La Jolla, CA (Hinkle Automotive Management Company, Inc., Poway CJ, Inc., Wes Hinkle); and Jerrilyn T. Malana, Littler Mendelson, PC, San Diego, CA (Steven Ausencio)

Result: The parties agreed to a global settlement whereby for $135,000.

Court:  Superior Court of San Diego County, San Diego

Judge: John S. Meyer

Date:    10/22/2009

Facts & Allegations

In 2008, the plaintiffs — one 69-year-old waitress and one 70-year-old waitress — were long time workers for a national diner chain. Both females, one plaintiff had worked for the chain for more than 38 years, while the other had worked there for more than 10 years. When the corporation sold the restaurant chain to the franchisee, both plaintiffs were terminated.

They sued the restaurant for wrongful termination, age harassment and discrimination and breach of the implied covenant of good faith and fair dealing.

The plaintiffs claimed that they had terrific reviews when the diner was corporately owned, but when a franchisee purchased it, they began to be harassed throughout 2007. They claimed that their work schedules were systematically cut because of their age and that the franchise owner was overheard saying “get rid of the two old ones.” They also asserted that the general manager who heard this refused and so the franchise owner brought in another general manager to run the diner.

The plaintiffs asserted that the new general manager was overheard saying things like: “[plaintiffs] are too old to work here,” “[plaintiffs] are too old and slow to take care of their station,” “we need to force [the plaintiffs] out,” “let’s put [plaintiffs] in a busier section, so that more customers complain” and “we need to hire somebody that is not so old — we need fresh people.”

The defendants denied the allegations, and claimed that the plaintiffs were not performing satisfactorily.

Result: Settlement of $266,000 – this settlement was over the policy limits.  The settlement was only reached once plaintiff’s counsel verified that the franchisee was on the verge of bankruptcy.

Court:  Superior Court of Riverside County, Indio

Judge(s): H. Morgan Dougherty

Date:   April 2008

Facts & Allegations

David Samuel Ascher II could not qualify to buy a home.  So, Mr. Ascher II, along with loan officer, Keith Rosenberg of Windsor Capital Mortgage Corporation, induced Linda Andrews to purchase two high end homes in Indio.  Mr. Ascher II promised to make all of the monthly mortgage payments.

Mr. Rosenberg and David Samuel Ascher II fraudulently qualified Mrs. Andrews for loans that she should have not qualified.   Specifically, Mr. Rosenberg and David Samuel Ascher II told her to sign a blank application, and then proceeded to fill out the loan application with false information.  When the lender called to verify Ms. Andrews’ employment, Mr. Rosenberg was on the other line, and he verified false information for Ms. Andrews.

Mr. Ascher did not make the monthly mortgage payments, so the bank foreclosed on both homes, causing Ms. Andrews with severe credit damage, and emotional distress.

Result: $669,000

Court: Superior Court of Riverside County, Riverside

Judge(s): Gary B. Tranbarger

Date:  November 15, 2011

Facts & Allegations

Real Estate Agent “A” induced twelve unsuspecting real estate investors into 40 bad home purchases with 100% financing throughout Riverside County.  Real Estate Agent “A” bought and sold properties from client to client to client.  Using a “strawman” approach, Real Estate Agent “A” misrepresented to his clients that he had other clients lined up to resell the properties to at a profit.  Real Estate Agent “A” guaranteed Plaintiffs to pay the monthly mortgages of each property until they were sold.

Plaintiffs were comprised of a group of unsophisticated persons, including teenagers, Spanish speakers who spoke limited English, and a disabled person resigned to a wheelchair.  Real Estate Agent “A” rushed these buyers to buy multiple properties each and the properties he or she would close within a short time frame in order to help conceal it from the different credit agencies.

This real estate agent’s only motivation to engage in this scheme was to earn exorbitant commissions and other fees.  Plaintiffs’ believe that this real estate agent made in excess of $1,000,000 in perpetrating these fraudulent real estate transactions.

The 3 owners of the brokerage were complicit in this ponzi scheme because they were earning money off Real Estate Agent “A”s fees.

Also complicit, was Appraiser “B” who appraised many of the 40 home purchases so that the loans would go through.

Eventually, almost all of the 40 homes foreclosed.  Plaintiffs lost money each and every month trying to keep up with the monthly mortgage, suffering out-of-pocket, severe credit damage, and emotional distress.

Result: $650,000