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  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
  • Florentin, Jennifer vs Davis, Lonny et al(15) Unlimited Other Employment document preview
						
                                

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1 Drew Lewis (SBN 309288) drew@drewlewis.law 2 DREW LEWIS, PC 2998 Douglas Blvd., Suite 375 2/26/2020 3 Roseville, CA 95661 Tel: (650) 665-9000 4 Attorneys for Plaintiff 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE 10 JENNIFER FLORENTIN, Case no.: 20CV00577 11 Plaintiff, 1. Failure to pay minimum wage (Lab. Code § 1194 and IWC Wage Orders) 12 vs. 2. Failure to provide/authorize rest periods 13 (Lab. Code §§ 226.7, 512, IWC Wage MY CIRCLE HEALTH, INC., a California Orders) Corporation; LONNY DAVIS, an 14 individual; ERIC OSMOLINSKI, an 3. Failure to provide all wages upon individual; DOES 1 through 10, inclusive, discharge (Lab. Code §§ 201-203) 15 4. Unfair Competition (B&P § 17200 et Defendants. 16 seq.) 5. Breach of Contract 17 6. Failure to provide payroll records (Lab. 18 Code § 226) 7. Failure to provide personnel records 19 (Lab. Code § 1198.5) 20 8. Wrongful termination in violation of public policy (Labor Code §1194) 21 22 23 24 25 26 27 28 1 PLAINTIFF’S COMPLAINT 1 INTRODUCTION 2 1. This Complaint is brought by Plaintiff Jennifer Florentin, a former employee of 3 Defendants My Circle Health, Inc. and its owners, Lonny Davis and Eric Osmolinski. My Circle 4 Health, Inc. operated as a health services software platform. The business was located in and 5 operated out of Chico, California. Plaintiff’s position was to recruit medical professionals for 6 Defendants’ services. Throughout her employment, Plaintiff was not properly paid her 7 commission for her recruiting efforts. Plaintiff now brings this claim for unpaid wages, penalties, 8 and other damages resulting from Defendants’ violations of the California Labor Code and Civil 9 Code. 10 JURISDICTION & VENUE 11 2. This Court has subject matter jurisdiction to hear this case because the amount in 12 controversy exceeds this Court’s jurisdictional minimum. 13 3. Venue as to each Defendant is proper because Defendants have at all times 14 relevant to this Complaint conducted business in the County of Butte, California. 15 PARTIES 16 4. Plaintiff is an individual over the age of eighteen (18). At all relevant times 17 herein, Plaintiff was a California resident, residing in Butte County. 18 5. Plaintiff is informed, believes, and thereupon alleges that Defendant MY CIRCLE 19 HEALTH, INC. was a California corporation that operated in Chico, California. 20 6. On information and belief, Plaintiff alleges that Defendant LONNY DAVIS is an 21 individual over the age of eighteen (18) and is a California resident. 22 7. On information and belief, Plaintiff alleges that Defendant ERIC OSMOLINSKI is 23 an individual over the age of eighteen (18) and is a California resident. 24 8. Plaintiff does not know the true names and capacities of Defendants sued in this 25 Complaint as DOES 1 through 10, inclusive, and therefore sues these Defendants by fictitious 26 names. Plaintiff will amend this Complaint to allege the true names and capacities of DOES 1 27 through 10, inclusive when ascertained. Plaintiff is informed and believes, and on that basis 28 alleges, that each of the Defendants named herein as DOES 1 through 10, inclusive, is responsive 2 PLAINTIFF’S COMPLAINT 1 in some manner for the occurrence, injury and other damages alleged in this Complaint. 2 9. Plaintiff is informed and believes, and on that basis alleges, that each Defendant 3 was in some manner responsible for the acts and damages alleged herein, and/or are indebted to 4 Plaintiff as alleged herein, and that each Defendant was the agent, employer, and co-conspirator 5 of each other Defendant, and was acting in the course and scope of such agency and conspiracy. 6 In this Complaint where Plaintiff refers to Defendant singularly, such reference shall be construed 7 to be a reference to all Defendants named herein, including those named fictitiously. 8 FACTUAL ALLEGATIONS 9 10. During all relevant times, herein, Defendants primarily operated a software 10 business within the health services industry from their office located at 100 Independent Circle, 11 Chico, CA 95973. Defendants’ software platform intended to bridge the gap between patients 12 with long-term health care needs and medical professionals. 13 11. On information and belief and at all relevant times, herein, Defendants were in the 14 process of purchasing and staffing the Argyll Medical Group. 15 12. On information and belief, Defendant Lonny Davis was the owner, President, and 16 Chief Executive Officer of My Circle Health, Inc. 17 13. On information and belief, Defendant Eric Osmolinski was Lonny Davis’ business 18 partner, an investor in My Circle Health, Inc., and Plaintiff’s employer. 19 14. On or around November 3, 2017, Defendants hired Plaintiff as a recruiter. On 20 Defendants’ behalf, Plaintiff would recruit medical professionals to work within the Argyll 21 Medical Group. 22 15. For her efforts, Defendants would not pay Plaintiff a base salary. Instead, 23 Defendants would only pay Plaintiff commissions for each medical professional she recruited. 24 Plaintiff’s commissions were earned when the medical professional signed a contract with My 25 Circle Health, Inc. to work at the Argyll Medical Group. 26 16. During all relevant times, herein, Defendants Davis and Osmolinski were 27 Plaintiff’s direct supervisors. Both Defendant Davis and Osmolinski supervised and approved 28 Plaintiff’s daily tasks and exercised significant control over Plaintiff’s working conditions. 3 PLAINTIFF’S COMPLAINT 1 Together, Davis and Osmolinski controlled all aspects of Plaintiff’s employment. 2 17. According to her commission agreement, Plaintiff was entitled to $15,000 for 3 every physician's assistant or nurse practitioner that she recruited. Plaintiff was entitled to 4 $18,000 for each doctor she recruited. These commissions were earned once a medical 5 professional signed a contract with My Circle Health, Inc. to work at the Argyll Medical Group. 6 18. While Plaintiff recruited multiple medical professionals, including two physician 7 assistants, a nurse practitioner, and a doctor, Defendants only paid Plaintiff commission for one 8 physician assistant. 9 19. Throughout her employment, Plaintiff made repeated requests for Defendants to 10 pay her earned and outstanding commissions. Plaintiff’s requests were either ignored or refused. 11 20. Defendants acknowledged that they owed Plaintiff commissions, and their refusal 12 to pay those commissions left Plaintiff with no reasonable alternative other than to resign and 13 seek legal assistance. 14 21. On or about July 27, 2018, having been paid only a small amount of what she was 15 owed, Plaintiff resigned from her employment with Defendants. To this day, Defendants have 16 failed or otherwise refused to pay Plaintiff all of her outstanding wages. 17 FIRST CAUSE OF ACTION Failure to Pay Minimum Wage 18 (Labor Code §§ 1194, 1197, 1197.1) (As to All Defendants) 19 1. Plaintiff incorporates in this cause of action each and every allegation of the 20 preceding paragraphs, as though fully set forth herein. 21 2. Labor Code §§ 1194, 1197, 1197.1 and Industrial Welfare Commission (“IWC”) 22 Wage Order 4 requires employers to pay an amount equal to or greater than the minimum wage 23 for each hour worked in excess of 8 in a workday and 40 in a workweek. 24 3. Defendants failed to pay Plaintiff at least the minimum wage for each hour 25 worked. 26 4. As a direct and proximate result of Defendants’ unlawful conduct, as set forth 27 herein, Plaintiff has suffered damages, including loss of earnings for time worked on behalf of 28 4 PLAINTIFF’S COMPLAINT 1 Defendants. 2 5. Plaintiff requests relief as described below. 3 SECOND CAUSE OF ACTION Failure to Provide Rest Periods 4 (Labor Code § 226.7, IWC Wage Orders) (As to All Defendants) 5 6. Plaintiff incorporates in this cause of action each and every allegation of the 6 preceding paragraphs, as though fully set forth herein. 7 7. Plaintiff regularly worked in excess of four (4) hours in a workday without being 8 provided with a paid rest period of at least ten minutes during which they were relieved of all 9 duty, as required by IWC Wage Order No. 4. 10 8. When an employer fails to provide such a rest period, the employer is required to 11 pay the employee as wages one additional hour of pay at the employee’s regular rate of 12 compensation. Defendants have failed to pay this additional rest period compensation to Plaintiff. 13 9. Defendants failed to provide a rest period to Plaintiff where she was free of all 14 duty when she worked more than four hours per workday. 15 10. As a direct and proximate result of Defendants’ unlawful conduct, as set forth 16 herein, Plaintiff has sustained damages, including loss of earnings, from unpaid rest periods. 17 11. Plaintiff requests relief as described below. 18 THIRD CAUSE OF ACTION 19 Failure to Pay All Wages Upon Discharge (Labor Code §§ 201-203) 20 (As to All Defendants) 21 12. Plaintiff incorporates in this cause of action each and every allegation of the 22 preceding paragraphs, as though fully set forth herein. 23 13. Labor Code §§ 201 and 202 require Defendants to pay their employees all wages 24 due immediately upon discharge, or within seventy-two (72) hours of quitting without notice. 25 Labor Code § 203 provides that where an employer willfully fails to make such timely payment, 26 the employer must, as a penalty, continue to pay the subject employees’ wages until the back 27 wages are paid in full or an action is commenced, up to a maximum of thirty (30) days’ wages. 28 14. Plaintiff was discharged from her employment by Defendants without being paid 5 PLAINTIFF’S COMPLAINT 1 all wages that were due to her within the time required by Labor Code §§ 201 and 202. 2 Defendants’ failure to pay these wages has been and continues to be willful. 3 15. As a result of Defendants’ conduct, Plaintiff is entitled to waiting time penalties in 4 the amount of up to thirty (30) days’ wages under Labor Code § 203. 5 16. Plaintiff requests relief as described below. 6 FOURTH CAUSE OF ACTION Unlawful Business Practices 7 (Business & Professions Code § 17200 et seq.) (As to All Defendants) 8 17. Plaintiff incorporates in this cause of action each and every allegation of the 9 preceding paragraphs, as though fully set forth herein. 10 18. Defendants’ conduct, as alleged herein, constitutes an unlawful, unfair, and/or 11 fraudulent business practices, as set forth in Business & Professions Code § 17200. Defendants 12 conducted business activities while failing to comply with the legal mandates cited herein. 13 Plaintiff and others similarly situated suffered injury in fact and lost money as a result of 14 Defendants’ unfair competition. 15 19. As a result of Defendants’ unlawful and unfair business practices, Plaintiff is 16 entitled to and does seek restitution, and other appropriate relief available under Business & 17 Professions Code § 17203, on her behalf, and on behalf of others similarly situated. 18 20. Plaintiff requests relief as described below. 19 FIFTH CAUSE OF ACTION 20 Breach of Contract (As to All Defendants) 21 21. Plaintiff incorporates in this cause of action each and every allegation of the 22 preceding paragraphs, as though fully set forth herein. 23 22. Plaintiff and Defendants entered into an employment agreement wherein 24 Defendants agreed to provide compensation and other benefits to Plaintiff in connection with 25 Plaintiff’ employment. 26 23. Despite Plaintiff’s performance of services for Defendants, Defendants breached 27 their agreement with Plaintiff when they failed to provide wages and other benefits to Plaintiff in 28 6 PLAINTIFF’S COMPLAINT 1 the manner required by their contract. 2 24. As a direct and proximate result of Defendants’ breach of contract, Plaintiff has 3 been harmed. 4 25. Defendants’ breach was a substantial factor in causing Plaintiff’s harm. 5 26. Plaintiff requests relief as described below. 6 SIXTH CAUSE OF ACTION Failure to provide payroll records 7 (Lab. Code § 226) (As to All Defendants) 8 27. Plaintiff incorporates in this cause of action each and every allegation of the 9 preceding paragraphs, as though fully set forth herein. 10 28. Labor Code § 226 provides employees the right to inspect or copy payroll records 11 upon written or oral request. An employer who fails to provide access to these records within 21 12 days violates the law and is subject to a penalty of $750 plus costs and attorney’s fees. 13 29. On May 6, 2019, Plaintiff made a written request for her payroll records 14 30. To date, Defendants have failed or otherwise refused to provide access to these 15 records in the timeframe required by law, or at all. 16 31. Plaintiff requests relief as described below. 17 SEVENTH CAUSE OF ACTION 18 Failure to provide personnel records (Lab. Code § 1198.5) 19 (As to All Defendants) 20 32. Plaintiff incorporates in this cause of action each and every allegation of the 21 preceding paragraphs, as though fully set forth herein. 22 33. Labor Code § 1198.5 provides employees the right to inspect or copy personnel 23 records upon written or oral request. An employer who fails to provide access to these records 24 within 30 days violates the law and is subject to a penalty of $750 plus costs and attorney’s fees. 25 34. On May 6, 2019, Plaintiff made a written request for her personnel records. 26 35. To date, Defendants failed to provide access to these records in the timeframe 27 required by law, or at all. 28 36. Plaintiff requests relief as described below. 7 PLAINTIFF’S COMPLAINT 1 EIGHTH CAUSE OF ACTION Wrongful Termination in Violation of Public Policy 2 (Labor Code § 1194) (As to All Defendants) 3 37. Plaintiff incorporates in this cause of action each and every allegation of the 4 preceding paragraphs, as though fully set forth herein. 5 38. At all times mentioned herein, the California Labor Code, the California Code of 6 Civil Procedure, and the California Code of Regulations were in full force and effect and binding 7 on Defendants. Under Labor Code § 98.6(a), “A person shall not discharge an employee or in any 8 manner discriminate, retaliate, or take any adverse action against any employee . . . because the 9 employee . . . made a written or oral complaint that he or she is owed unpaid wages.” 10 39. Plaintiff made several complaints to Defendants regarding earned, unpaid 11 commission wages. 12 40. Defendants failed or otherwise refused to compensate Plaintiff for the earned 13 commission wages. 14 41. As a result of Defendants’ failure or refusal to pay Plaintiff’s earned commission 15 wages, Plaintiff reasonably believed that her only recourse was to resign from her position. 16 42. Plaintiff’s resignation is tantamount to a constructive discharge because no 17 reasonable person would be expected to continue to work without receiving payment for work 18 already completed. 19 43. Plaintiff believes and thereon alleges Defendants’ constructive termination of her 20 employment violated public policy of the state of California as reflected in the aforementioned 21 constitutional, statutory, or regulatory provisions and has resulted in damages and injury to 22 Plaintiff as alleged herein. 23 44. As a proximate result of Defendants’ willful, knowing, and intentional violation of 24 public policy and Plaintiff’s rights, she has suffered and continues to suffer humiliation, 25 emotional distress, and mental and physical pain and anguish, resulting in damages in a sum 26 according to proof at trial. 27 45. In light of Defendants’ willful, knowing, and intentional violation of public policy, 28 8 PLAINTIFF’S COMPLAINT 1 Plaintiff seeks an award of punitive and exemplary damages in an amount according to proof. 2 46. Wherefore, Plaintiff requests relief as described below. 3 PRAYER 4 WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally, as 5 follows: 6 1. For general damages according to proof in an amount to exceed $1,000,000, on 7 each cause of action for which such damages are available; 8 2. For special damages, according to proof in an amount to exceed $1,000,000, on 9 each cause of action for which such damages are available; 10 3. For punitive damages, according to proof on each cause of action for which such 11 damages are available; 12 4. For reasonable attorneys’ fees and costs of suit incurred herein pursuant to Labor 13 Code § 218.5 and any other relevant provision under California law that provides for attorneys’ 14 fees; 15 5. For equitable, declaratory and injunctive relief to the extent available under law; 16 6. For statutory penalties to the extent available under law; and 17 7. For such other and further relief as the Court deems proper and just. 18 19 20 Respectfully submitted, 21 Dated: February 26, 2020 DREW LEWIS, PC 22 By: 23 Drew Lewis 24 Attorney for Plaintiff 25 26 27 28 9 PLAINTIFF’S COMPLAINT