pld-c-001 · 2019. 9. 10. · pld-c-001 attorney or party without attorney (name, state bar number,...

PLD-C-001

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY David Greifinger (SBN I 05242)

Law Offices of David R. Greifinger 15515 W. Sunset Blvd., No. 214 Pacific Palisades, CA 90272

TELEPHONE NO: (424) 330-0193 FAX NO. (Optional). (83 J) 920-4864

ELECTRONICALL V FILED Superii:ir Ci:iurt i:if California,

County of San Diego

E-MAIL ADDRESS (Optional): [email protected] ATTORNEY FOR (Name): Plaintiff, Tracy Sundlun

0110412019 at □4:57:20 PM

Clerk of the Superior Court SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

STREET ADDRESS: 330 West Broadway

By Kristin Si:irianosos, Deputy Clerk

MAILING ADDRESS: same

CITY AND ZIP CODE:

BRANCH NAME:

San Diego, CA 92 IO I

Central

PLAINTIFF: Tracy Sundlun

DEFENDANT: Competitor Group, Inc., a Delaware Corporation, and

GZJ DOES 1 TO 25, Inclusive

CONTRACT

GZJ COMPLAINT LJ AMENDED COMPLAINT (Number):

LJ CROSS-COMPLAINT LJ AMENDED CROSS-COMPLAINT (Number):

Jurisdiction (check all that apply):

LJ ACTION IS A LIMITED CIVIL CASE Amount demanded D does not exceed $10,000

CASE NUMBER:

D exceeds $10,000 but does not exceed $25,000 GZ] ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) LJ ACTION IS RECLASSIFIED by this amended complaint or cross-complaint

37-2019-00000701-C U-B C-CTL

D from limited to unlimited

D from unlimited to limited

1. PlaintiW (name or names):

Tracy Sundlunalleges causes of action against defendant* (name or names):

Competitor Group, Inc.2. This pleading, including attachments and exhibits, consists of the following number of pages: 123. a. Each plaintiff named above is a competent adult

D except plaintiff (name):

(1) D a corporation qualified to do business in California(2) Dan unincorporated entity (describe):

(3) D other (specify):

b. D Plaintiff (name):

a. D has complied with the fictitious business name laws and is doing business under the fictitious name (specify):

b. D has complied with all licensing requirements as a licensed (specify):

c. D Information about additional plaintiffs who are not competent adults is shown in Attachment 3c.4. a. Each defendant named above is a natural person

[ZJ except defendant (name): Competitor Group, In (1) D a business organization, form unknown(2) [ZJ a corporation(3) Dan unincorporated entity (describe):

(4) D a public entity (describe):


D except defendant (name):

(1) D a business organization, form unknown(2) D a corporation(3) D an unincorporated entity (describe):

(4) D a public entity (describe):


• If this form is used as a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. of 2

Form Approved for Optional Use Judicial Council of California

PLD-C-001 [Rev. January 1, 2007) COMPLAINT-Contract Code of Civil Procedure,§ 425.12

PLD-C-001

SHORT TITLE: CASE NUMBER:

Sundlun v. Competitor Group, Inc,

4. (Continued)

b. The true names of defendants sued as Does are unknown to plaintiff.(1) GZJ Doe defendants (specify Doe numbers): 1-10, Inclusive were the agents or employees of the named

defendants and acted within the scope of that agency or employment. (2) GZJ Doe defendants (specify Doe numbers): 11-25, Inclusive are persons whose capacities are unknown to

plaintiff.

c. D Information about additional defendants who are not natural persons is contained in Attachment 4c.

d. D Defendants who are joined under Code of Civil Procedure section 382 are (names):

5. D Plaintiff is required to comply with a claims statute, and

a. D has complied with applicable claims statutes, orb. D is excused from complying because (specify):

6. D This action is subject to D Civil Code section 1812.10 D Civil Code section 2984.4.

7. This court is the proper court becausea. GZJ a defendant entered into the contract here.b. D a defendant lived here when the contract was entered into.

c. D a defendant lives here now.d. GZJ the contract was to be performed here.e. GZJ a defendant is a corporation or unincorporated association and its principal place of business is here.f. D real property that is the subject of this action is located here.g. GZJ other (specify):

The intentional torts complained of occurred here. 8. The following causes of action are attached and the statements above apply to each (each complaint must have one or

more causes of action attached):

GZJ Breach of Contract

D Common Counts

GZJ Other (specify):

Conversion (breach of contract allegations do not apply)

9. D Other allegations:

10. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for

a. GZ] damages of: $ According to proofb. GZJ interest on the damages

(1) GZJ according to proof(2) D at the rate of (specify): percent per year from (date):

c. GZJ attorney's fees(1) D of: $(2) GZJ according to proof.

d. GZJ other (specify):

Plaintiff prays for general, special, and punitive damages on his cause of action for conversion.

11. D The paragraphs of this pleading alleged on information and belief are as follows (specify paragraph numbers):

Date: January 4, 2019

David Greifinger ► (TYPE OR PRINT NAME) (SIGN

(If you wish to verify this pleading, affix a verification.) PLD-C-001 [Rev. January 1. 2007] COMPLAINT-Contract of 2


Sundlun v. Competitor Group, Inc.

FIRST CAUSE OF ACTION-Breach of Contract (number)

ATTACHMENT TO W Complaint D Cross - Complaint (Use a separate cause of action form for each cause of action.)

BC-1. Plaintiff (name): Tracy Sundlun

alleges that on or about (date): October 28, 2016 a [Z] written D oral D other (specify):

agreement was made between (name parties to agreement):

Tracy Sundlun and Competitor Group, Inc. [Z] A copy of the agreement is attached as Exhibit A, or

PLD-C-001(1)

D The essential terms of the agreement D are stated in Attachment BC-1 D are as follows (specify):

BC-2. On or about (dates): November 15, 2016 defendant breached the agreement by D the acts specified in Attachment BC-2 [Z] the following acts (specify):

1. Defendant has failed to pay the severance pay promised. 2. Defendant has failed to provideCOBRA benefits as promised. 3. Defendant has failed to reimburse plaintiff for his expenses aspromised.

BC-3. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing.

BC-4. Plaintiff suffered damages legally (proximately) caused by defendant's breach of the agreement D as stated in Attachment BC-4 [Z] as follows (specify):

Severance pay in the amount of $146,153.84; health benefits in an amount to be proved; and unreimbursed expenses in an amount to be proved

BC-5. D Plaintiff is entitled to attorney fees by an agreement or a statute

D of$ D according to proof.

BC-6. D Other:


PLD-C-001(1) [Rev. January 1, 2007]

CAUSE OF ACTION-Breach of Contract

Page ___ 3 __ _ Page 1 of 1

Code of Civil Procedure,§ 425.12 www.courtinfo.ca.gov

ISHORT TITLE

SECOND CAUSE OF ACTION-Intentional Tort (number)

ATTACHMENT TO [ZJ Complaint LJ Cross - Complaint

(Use a separate cause of action form for each cause of action.)

IT-1. Plaintiff (name): Tracy Sundlun

alleges that defendant (name): Competitor Group, Inc.

W Does l to 25 ----- -----

PLD-Pl-001 (3)

was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant intentionally caused the damage to plaintiff on(date):aboutNov.15,2016 at (place):San Diego, California

(description of reasons for liability):

The defendant is plaintiff's former employer. Plaintiff stored valuable personal property at his place of employment. After plaintiff's employment terminated, the defendant wrongfully took for itself and converted the valuable personal property owned by plaintiff that was at defendant's premises. Plaintiff has a right to possess the personal property. The value of the property converted exceeds the jurisdictional limit of this court. Plaintiff has been damaged in an amount to be proven at trial by defendant's wrongful acts.


PLD-Pl-001(3) [Rev. January 1, 2007)

CAUSE OF ACTION-Intentional Tort

Page 1 of 1

Code of Civil Procedure, § 425.12 www.courtinfa.ca.gov


Sundlun v. Competitor Group, Inc.

Exemplary Damages Attachment

ATTACHMENT TO [ZJ Complaint O Cross - Complaint

EX-1. As additional damages against defendant (name):

Competitor Group, Inc.

Plaintiff alleges defendant was guilty of [ZJ malice [ZJ fraud

[ZJ oppression

PLD-Pl-001 (6)

as defined in Civil Code section 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and to punish defendant.

EX-2. The facts supporting plaintiffs claim are as follows:

The managing agents of defendant knowingly and in a concerted effort to harm plaintiff, converted plaintiff's personal property, knowing and intending that it would damage his continued ability to earn a living and would cause him great emotional distress.

EX-3. The amount of exemplary damages sought is a. [Z] not shown, pursuant to Code of Civil Procedure section 425.10.

b. D $


PLD-Pl-001 (6) [Rev. January 1, 2007)

Exemplary Damages Attachment

Page 1 of1

Code of Civil Procedure.§ 425.12 V{WW,courtinfo.ca.gov

October 14. 2016

Tracy Sundlun

Santee. CA 92071

RE: Separation Agreement

Dear Tracy.

This letter sets forth the terms and conditions of our agreement (the .. Agreement") regarding the.

separation of your employment with Competitor Group. Inc. (the ··Company, }. You and the Company hereby agree as follows:

I. SEPARATION. Your employment with the Company was terminated effective July 21. 20 I G (the ··Separation Date"').

2. SEPARATION BENEFITS. In exchange for your covenants and releases herein. and provided that this Agreement becomes effective as of the date of execution (--Effective Date'·). the Company ,viii provide you with the following separation benefits (the ··Separation Bene tits'·).

(a) Severance Pay. You shall receive severance payments in the form of continuation of your base salary in eflect on the Separation Date for a period commencing on the rirsr pay period following the Effective Date and ending after 38 weeks thereafter. for a total of 38 weeks· severance. These payments will be made on the Company's ordinary payroll dates.

(b) Health Care Coverage. Provided that you timely elect COBRA health insurance continuation coverage, the Company will pay one hundred percent of the premium cost of such coverage for a period of 38 weeks following the Effective Date. until you become eligible for group health insurance coverage offered by another employer. or until such time as you are no longer eligible for COBRA continuation coverage. whichever comes first. Notwithstanding the foregoing. if at any time the Company determines. in its sole discretion. that its payment or

COBRA premiums on your behall" ,.vould result in a violation or applicable law {including. without limitation. Section 2716 or the Public Health Se1·vice Act). then in lieu or paying COBRA premiums on your bdrnlL the Company will pay you a fully taxable cash payment equal to the COBRA premium for that rnomh. subject to aprlicable rax withholding (such amount. the .. Special Severance Payment"·}. such Special Severance Payment to be made without regard to your payment of COBRA premiums.

(c) Cessation of Separation Benefits. Notwithstanding anything to the contrar� sci li.xth in this Agreement. immediately upon the occurrence of your bn:!ach or any of the non

cl isclosure. confidentiality or non-cl isparagement prov is ions or th is Agreement ( Sections 5 and 6). )Our rights pursuant to Sections 2(a) and 2(b) above shall cease and terminate in their

Tracy Sum/11111

October 27. 20 I 6 Page Two

entirety. For clarity. the occurrence of any such breach shall not affect any or your obligations under this Agreement.

(d) Tax Withholding. All compensation described in this Section 2 will be subjectto the Company's collection of all applicable tederal. state and local income and employment withholding taxes.

(e) Expenses. The Company will reimburse up to fifteen thousand ($15,000) of thebusiness expenses you have submitted up to the Effective Date. Such expenses must be subrnined in such form as required by the Company's standard practices and procedures.

3. OTHER C0i\lPE'.'ISATI0'< AND BENEFITS. Except as expressly provided herein. youacknowledge and agree that you are not entitled to and will not receive any additional compensation. wages. reimbursement. severance. or benefits from the Company.

4. COMPANY PROPERTY. You represent and confirm that as of the Effective Date youhave returned to the Company all Company documents (and all copies thereof) and other property of the Company in your possession or control. including. but not limited to. computer security access. files. business plans. notes. financial information. financial information. data. computer-recorded information. tangible property. including entry cards. keys and any other materials of any nature pertaining to your "vork with the Company, and any documents or data or any description (or any reproduction of any documents or data) containing or pertaining to any proprietary or confidential material of the Company; provided that you shall be permitted to retain copies of documents relating to the terms and conditions of your employment with the Company.

5. CONFIDENTI.-\L INFORMATION AND PROPRIETARY lNfORM.-\TION OBLIGATIONS.

You agree nor to, at any time. disclose or use directly or indirectly. for your own benefit or for the benefit of another entity. any information of the Company or of the Company's vendors, sponsors. partners or customers which you gain relating to the property. business. and affairs of the Company or the Company's vendors. sponsors. panners or customers. including, but not limited to. information concerning marketing and business methods. procedures and strategies. fees. rates. mailing lists. business contacts. trade secrets. plans for the development or ne\\ markets and services. financial records. data. results of operations and billings.

6. MUTL1AL NOi\-DISl'.-\RAGEi\lENT; INQUIRIES. You shall nor make any disparaging

comments or statements about the Company. its services. its products. its work. the members or its Board or Directors. or e:xecutive management. The Company·s e:-;ecutive management and members of its Board or Director shall not making an) disparaging comments or statements about Mr. Suncllun. The Compan) will follow its standard neutral relerence policy in response to any inqui1·ies regarding you from prospective employers. i.e .. only dates of employment and position(s) held will be disclosed .

.JOINT CO:\L\'IU'.'ilC..\TIONS PL.-\:\. The parties agree that they will implement a muwally agreeable joint communications plan \\'ith respect to Mr. Sundlun·s separation.

Tracy Swu/11111

October 27. 2016 Page Three

7. INJUNCTIVE RELIEF. The parties agree that any remedy at law will be inadequate forany breach by you or the Company of" the covenants under the non-disclosure. confidentiality. and non-disparagement provisions 01· this Agreement (Sections 5. 6 & 7. and that each Party shall be entitled to an injunction both preliminary and final. and any other appropriate equitable relief to enforce her or its rights set forth in these Sections. Such remedies shall be cumulative and non-exclusive. being in addition to any and all other remedies either Party may have.

8. RELEASE OF CLAIMS.

(a) General Release. In exchange for the consideration provided to youunder this Agreement to which you would not otherwise be entitled. including but not limited to the Separation Benefits. you hereby generally and completely release the Company and its current and former directors. otlicers. employees. shareholders, partners. agents. attorneys. predecessors. successors, parent and subsidiary entities. insurers, affiliates. investors and assigns (.collectively. the ··Released Parties··) of and from any and all claims. liabilities and obligations. both known and known. that arise out of or are in any v.ray related to events. acts. conduct. or omissions occurring prior to or on the date you sign this Agreement (collectively. the ··Released Claims

.. ).

(b) Scope of Release. The Released Claims include. but are not limited to: (i)all claims arising out of or in any way related to your employment vlith the Company. or the termination of your employment: (ii) all claims related to your compensation or benefits from the Company. including salary. bonuses. commissions. vacation pay. expense reimbursements. severance pay, fringe benefits. srock. stock options. or any other ownership interests in the Company: (iii) al I claims for breach of contract. wrongfu I termination. and breach of the implied covenant of good faith and lair dealing: (iv) all tort claims, including claims for fraud. defamation. emotional distress. wrongful termination. and discharge in violation of public policy: and (v) all federal. state. and local statutory claims. including claims for discrimination. harassment. retaliation, attorneys· fees. or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabi I ities Act of 1990. the Age Discrimination in Employment Act c-·ADEA'"). the federal Family and Medical Leave Acl (as amended) (""Ffv!LA''). the California Family Rights Act ("'CFRA"'). the California Labor Code (as amended). the California nruh Act. and the California Fair Employment and Housing Act (as amended).

(c) Excluded Claims. Notwithstanding the foregoing. the following are notincluded in the Released Claims (the ··Excluded Claims··): (i) any rights or claims for indemnification you may have pursuant LO any written indemnification agreement with the Compan) to which you are a part). the charter. bylaws. or operating agreements oi' the Com pan). or under applicable la\\: (ii) an: rights or claims which are not w:,ivable as a matter or

lm,v: and (iii) any claims tor breach or this Agrecrnenl. In addition. nothing in this Agreement prevents you from liling. cooperating with. or participating in any proceeding before the Equal EmploymenL Opportunity Commission. the Depanmenr of Labor. the California Department or Fair Employment and Housing. or an: other government agency. except that you acknowledge and agree that you hereby ,vaive your right to any monetary benefits in connection with any such claim. charge or proceeding. You represc!nt and warrant that. other than the Excluded Claims.

Tracy S1111d!u11

Oc1obcr n. 2016 Page Four

you are no! aware of any claims you have or might have against any of the Released Parties that are not included in the Released Claims.

(d) Acknowledgements. You acknowledge that (i) the consic.leration given 10

you in exchange for the waiver and release in this Agreement is in addition to anything or value to \Vhich you were already entitled: (ii) that you have been paid for all time worked, have received all the leave. leaves of absence and leave benefits and protections for which you are eligible. and have nol suffered any on-the-job injury for which you have not already filed a claim: (iii) you have been given suflicient time 10 consider this Agreement and to consult an attorney or advisor of your choosing: and (iv) you are knowingly and voluntarily executing this Agreement waiving and releasing any claims you may have as of the elate you execute it.

9. AD.EA WAIVER. You knowingly and voluntarily waive and release any rights youmay have under the ADEA (defined above). You also acknowledge that the consideration given lor your releases in this Agreement is in addition to anything of value to which you were already entitled. You are advised by this writing that: (a) your waiver and release do not apply to any claims that may arise after you sign this Agreement: (b) you should consult with an attorney prior to executing this Agreement: (c) you have forty-five (45) days within which to consider this Agreement (although you may choose to voluntarily execute this Agreement earlier); (d) you have seven (7) days following the execution of this Agreement to revoke this Agreement: and (e) this Agreement will not be effective until the eighth day after you sign this Agreement. provided that you have not earlier revoked this Agreement (the ··Effective Date .

. ). You will not be entitled

to receive any of the benefits specinecl by this Agreement unless and until it becomes effective.

10. SECTIO'.'l 1542 WAIVER. In giving the applicable releases set fo1th herein. whichinclude claims which may be unknown at present. you acknowledge that you have read and understand Section 1542 of the Civil Code of the State of California which reads as follows:

A general release does not extend to claims which the creditor does not know

or suspect to exist in his or her favor at the time of executing the release,

which if known by him or her must have materially affected his or her

settlement with the debtor.

You expressly waive and relinquish all rights and benefits under this section and any law or legal principle of similar effect in any jurisdiction with respect to claims rekased hereby.

l l. COOPERATION A:'11D ASSISTA!\CE. You agree that you will not voluntarily provideassistance. information. encouragement. or advice. directly or indirectly (including through agents or attorneys). to any person or entity in connection with any claim by or against the Company. nor shall you induce or encourage any person or entity to do so. The foregoing sentence shall not prohibit you from testifying truthfully under subpoena. You \\arrant that you

have 1101 previously provided assistance. inlormation. encouragement. or advice. directly or indirectly. lo any person or entity in connection with any claim by or against the Company. You agree to provide (voluntarily and without legal compulsion) prompt cooperation and accurate and complete information 10 the Company in the event of litigation involving the Company or its orficers or directors and to respect and preser·ve all privileges held by or available to the

Tra(r Su11d!u11

Oc1ober 27. 20 I 6 Page Five

Company. The Company agrees to compensate you for your time spent consulting with and traveling ro any litigation-related proceeding at a reasonable rate to be agreed between you and the Company plus reimbursement of reasonable travel costs.

12. No AD:v11ss10NS. The parries hereto hereby acknowledge that this is a compromisesettlement of various matters. and that the promised payments in consideration of this Agreement shall not be construed to be an admission o l'any liability or obligation by either party to the other party or to any other person whomsoever.

13. E:'\TIR£ AGR£DIE:'(T. This Agreement constitutes the complete. final and exclusiveembodiment or the entire Agreement between you and the Company with regard to the subject matter hereof. It is entered into without reliance on any promise or representation, written or oral. other than those expressly contained herein. It may not be modified except in ,vriting signed by you and the Chief Executive Officer of the Company. Each party has carefully read this Agrel!ment. has been al'lorded the opportunity to be advised of its meaning and consequences by his or its respective attorneys. and signed the same of his or its free vvill.

1-t SL:CCESSORS A:--10 ASSIGNS. This Agreement shall bind the heirs. personal representatives. successors. assigns. executors. and administrators of each pa11y. and inure to the benefit of each party. its agents. directors. officers. employees. servants. heirs. successors and assigns.

15. APPLICABLE LAW. This Agreement shall be deemed to have been entered into andbe construed and enforced in accordance with the laws of the State or California as applied to contracts made and to be performed entirely within California.

16. SEVERABILITY. !fa court or arbitrator of'competentjurisdicrion determines that anyterm or provision or this Agreement is invalid or unenforceable. in whole or in pan. the remaining terms and provisions hereof" shall be unimpaired. Such court or arbitrator will have the authorit� to modify or replace the invalid or unenforceable term or provision with a valid and enforceable tenn or provision that most accurately represents the parties· intention with respect to the in alid or unenforceable term or provision.

17. lNDEi\l:'\IFIC..\TIO:'-i. You \\'ill indemnity and save harmless the Company from anyloss incurred directly or indirectly by reason or the falsity or inaccuracy or any representation made herein. The Co111pany will indemnif)1 and save harmless you fro111 any loss incurred directly or indirectly by reason of the falsity or inaccuracy of any representation made herein.

18. ALTHORIZATION. You and the Compan) warrant and represent that there arc noliens or claims or lien or assignments in la,., or equity or otherwise or or against any or th\! claims or causes or action released herein and. further. that each or them are fully entitled and duly authorized to give their complete and final general release and discharge.

19. COl l :'\TERP.-\RTS. This Agreement may be executed in two counterparts. each ol \\'hich shall be deemed an original. all or ,,hich together shall constitute one and the same instrument.

Tracy S1111d/1111

Oc1ober 27. 2016 Page Six

20. SECTION HEAUINGS. The section and paragraph headings contained in thisAgrc:cmcn1 are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

21. PHOTOCOPIES. A photocopy of this executed Agreement shall be as valid, binding,ant! effective as the original Agreement.

22. DEADLINE. This offer shall remain open to you until 3:00 p.m. Pacific DaylightTime on October 3 L 20 I(, (the "t>.:piratiott Date"). If you have not signed and returned this Agreement to me by the Expiration Date, this offer will automatically lapse and be null and void.

Please confirm your assent to the foregoing terms and conditions of our Agreement by signing and returning a copy of this letter to me. Sincerely.

BY:

1° /z.(b II& Date r

( ·

pld-c-001 · 2019. 9. 10. · pld-c-001 attorney or party without attorney (name, state bar number,...

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