estta tracking number: estta1144619 07/06/2021

Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov

ESTTA Tracking number: ESTTA1144619

Filing date: 07/06/2021

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Proceeding 91252410

Party DefendantShawn Simons

CorrespondenceAddress

SHAWN SIMONS72 BENSON LNCOTATI, CA 94931UNITED STATESPrimary Email: [email protected] Email(s): [email protected] phone number provided.

Submission Motion to Suspend for Civil Action

Filer's Name Shawn Simons

Filer's email [email protected], [email protected]

Signature __//s//__Shawn Simons__

Date 07/06/2021

Attachments Attachment1.pdf(1488882 bytes )Attachment 2.pdf(82590 bytes )Attachment2A.pdf(84818 bytes )Motion CIlivl 2.pdf(609696 bytes )

https://estta.uspto.gov

COMPLAINT

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MARC R. JACOBS, ESQ. (SBN 185924) [email protected] MICHELMAN & ROBINSON, LLP 10880 Wilshire Boulevard, 19th Floor Los Angeles, CA 90024 Telephone: (310) 299-5500 Facsimile: (310) 299-5600 Attorneys for Plaintiff SHAWN SIMONS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHAWN SIMONS,

Plaintiff,

v. KITTY BUNGALOW CHARM SCHOOL FOR WAYWARD CATS, a California corporation; and DOES 1-20, inclusive,

Defendants.

Case No.: COMPLAINT FOR: 1. BREACH OF WRITTEN CONTRACT 2. VIOLATION OF CALIFORNIA

LABOR CODE §§ 510 AND 1198 (UNPAID OVERTIME)

3. VIOLATION OF CALIFORNIA LABOR CODE §§ 226.7 AND 512(A) (UNPAID MEAL PERIOD PREMIUMS)

4. VIOLATION OF CALIFORNIA LABOR CODE §§ 1194, 1197, AND 1197.1 (UNPAID MINIMUM WAGES)

5. VIOLATION OF CALIFORNIA LABOR CODE §§ 201 AND 202 (FINAL WAGES NOT TIMELY PAID)

6. VIOLATION OF CALIFORNIA LABOR CODE § 204 (WAGES NOT TIMELY PAID DURING EMPLOYMENT

7. VIOLATION OF CALIFORNIA LABOR CODE § 226(A) (NON-COMPLIANT WAGE STATEMENTS)

8. VIOLATION OF CALIFORNIA LABOR CODE §§ 2800 AND 2802 (UNREIMBURSED BUSINESS EXPENSES)

9. VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE §§ 17200, ET SEQ.

[JURY TRIAL DEMANDED]

Electronically FILED by Superior Court of California, County of Los Angeles on 05/19/2021 03:53 PM Sherri R. Carter, Executive Officer/Clerk of Court, by N. Alvarez,Deputy Clerk

Assigned for all purposes to: Stanley Mosk Courthouse, Judicial Officer: Michael Stern

21STCV18906

1 COMPLAINT

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COMES NOW, Plaintiff, SHAWN SIMONS (“Plaintiff”) complains on information and

belief as follows against Defendant KITTY BUNGALOW CHARM SCHOOL FOR WAYWARD

CATS, (“Defendant” or “Kitty Bungalow”):

GENERAL ALLEGATIONS

1. Plaintiff SHAWN SIMONS is a citizen and resident of the State of California, with

residence at 72 Benson Lane, Cotati CA, 94931.

2. Defendant KITTY BUNGALOW CHARM SCHOOL FOR WAYWARD CATS is a

California corporation (Corp. No. C3271732) formed on December 21, 2009 in the State of

California, with its principal place of business in the State of California, County of Los Angeles, in

this judicial district, operating at 2032 West MLK Blvd., Los Angeles CA 90062. The agent for

Service of Process is Melanie Wagner, 902 Chestnut Ave, Long Beach CA 90813.

3. The wrongful acts by the Defendants, and each of them, alleged herein occurred in

the County of Los Angeles, State of California. Defendant conducts business in the County of Los

Angeles, State of California. Furthermore, Defendant owns property and operates out of said

property in the County of Los Angeles, State of California. Finally, Defendant has entered into

contracts in the County of Los Angeles, State of California including without limitation contracts

with the September 15, 2018 Compensation Agreement at issue between Plaintiff and Defendant, a

copy of which is attached hereto as Exhibit 1. (“Compensation Agreement”). Defendant’s

performance under the Compensation Agreement was required to take place and to be performed in

the County of Los Angeles, State of California.

4. The true names and capacities of defendants DOES 1 through 20, inclusive, whether

individual, corporate, associate, or otherwise, are unknown to Plaintiff at this time, who therefore

sues said defendants by such fictitious names. Plaintiff will amend this Complaint to state their true

names and capacities when they have been ascertained. Plaintiff is informed and believe and

thereon allege that such fictitiously named defendants are liable to Plaintiff for the facts and

circumstances herein alleged. Kitty Bungalow and DOES 1 through 20, inclusive, are hereinafter

collectively referred to as “Defendants”.

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2 COMPLAINT

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5. Plaintiff is informed and believe and thereupon allege that each defendant named

herein as a DOE is responsible in some manner for each and every act and obligation set forth in the

Complaint.

6. Plaintiff is informed and believe and thereupon allege that each Defendant herein is

at all relevant times herein the agent, servant, and employee of the other defendants herein, and was

at all such times acting within the course and scope of said agency and employment and with the

consent and permission of each of the co-defendants, and each of the defendants herein ratified each

of the acts of each of the other co-defendants.

GENERAL ALLEGATIONS

7. Plaintiff is the original founder of Kitty Bungalow, an animal rescue focused

primarily on caring for, nursing to health and finding homes for abandoned kittens and cats in the

Los Angeles area, as well as socializing feral street cats and trapping, neutering, returning them to

help end the overpopulation of cats born on the street. While at first, Plaintiff founded Kitty

Bungalow as part of her charitable efforts to help kittens and cats in need, the enterprise quickly

took on an increased level of business formality when Kitty Bungalow incorporated in California as

a domestic nonprofit corporation on or around December 21, 2009. From that time forward until her

departure from Kitty Bungalow on September 24, 2018, Plaintiff was employed full-time with Kitty

Bungalow as its Headmistress.

8. While employed at Kitty Bungalow, Plaintiff did everything, from menial to

mundane tasks and functions to operations for of the company to caring for the animals. Plaintiff

worked seven (7) days a week for Kitty Bungalow for on average ten (10) to fourteen (14) hours a

day without duty-free meal breaks, doing such tasks as answering phones and emails, cleaning the

facilities, cleaning cat-boxes and replacing litter, handling the kittens and cats, raising money Kitty

Bungalow, searching for sponsors, running volunteer orientations, planning fundraisers, creating

work flow, branding, newsletters, graphics, developing training programs to socialize the cats,

painting and building out two buildings, shopping for daily business and animal-related supplies,

designing and updating the website, making medical decisions, coordinating prospective adoptions,

communicating with prospective adoptees, picking up cats at the veterinarian, transporting and

3 COMPLAINT

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driving cats to appointments, fosters, or to receive cats, maintaining a mailing list, doing mailings,

handling social media, organized outreach events, managed TV appearances, oversaw volunteers,

handled volunteer orientations, created internal programing, cleaned, designed merchandise to raise

funds, handled administrative operations for Kitty Bungalow, handled paperwork for applying and

then maintaining the mortgage for the property purchased by Kitty Bungalow, bought supplies for

the property, purchased and installed safety implementations for the property such as lights and

alarms, represented the organization at events, did inventory for the facility, decorated the facility

and other related day-to-day functions necessary for Kitty Bungalow to carry out its fundamental

purpose of operating a rescue for kittens and cats.

9. Plaintiff’s succession from her Headmistress position was announced to the Board of

Directors in or around 2014-2015, as Plaintiff’s health was failing. It was agreed she could not

continue long term, hence informal discussions began with various Boards about the succession

plan, and Plaintiffs’ compensation for back pay and expenses and ongoing wages and expense

reimbursement. When Kitty Bungalow first started, the organization operated out of Plaintiff’s

house but as it grew, it became necessary to move into a larger facility. Kitty Bungalow did not pay

Plaintiff a salary or reimburse her for expenses so Kitty Bungalow could save up the money and

make a down payment on a full-time property. Kitty Bungalow, off the back of Plaintiff’s hard

work and by not paying her upfront salary and reimbursing her for expenses, purchased a building

to operate the animal rescue fulltime in or around 2015. The agreement was that it would

compensate (back pay and expenses, and forward-looking pay and expenses) subsequent to

acquisition of the building and sufficient funds in the entity’s bank account.

10. At all relevant times herein, Plaintiff requested compensation for salary, overtime

and reimbursement of expenses. The Board of Directors declined, despite Plaintiff’s fulltime efforts

10-14 hours a day running the day to day of the business. Plaintiff is informed and believes that

Kitty Bungalow now has approximately $500,000 in equity in the property it purchased to operate

fulltime in or around 2015, which it was only able to purchase, and a mortgage it was only able to

pay, because it was not compensating Plaintiff her salary or expenses. Kitty Bungalow has received

an unfair and unjust benefit and the unfair advantage of owning property that it only acquired and

4 COMPLAINT

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was able to pay for by withholding compensation due Plaintiff. Further to Kitty Bungalow’s benefit

but Plaintiff’s detriment, Plaintiff advanced expenses for Kitty Bungalow but was not reimbursed

by the organization, including but not limited to such expenses as trailer, truck, shed, electricity,

water, office supplies, phones and the like. Again, Plaintiff requested reimbursement but was

denied. It was always understood by Plaintiff, and Kitty Bungalow agreed, that she would be paid

back wages owed and future compensation and reimbursed expenses out of operating accounts

when sufficient funds were available, and out of the property’s equity which Plaintiff is informed

and believes now equals or exceeds $500,000.

11. At all relevant times set forth herein, Defendants employed Plaintiff but failed to pay

Plaintiff a salary, or minimum wage, or any wage and hour compensation at all, during her

employment at Kitty Bungalow until Plaintiff’s departure from Kitty Bungalow on September 24,

2018. At all times relevant herein, Plaintiff incurred but was not reimbursed expenses she advance

for Kitty Bungalow.

12. At all relevant times set forth herein, Defendants failed to compensate Plaintiff for

all hours worked. Plaintiff was on duty and working seven days a week at Kitty Bungalow 10-14

hours a day and was not compensated minimum wage for all hours worked.

13. At all relevant times set forth herein, Plaintiff worked over eight (8) hours in a day

daily, for seven days a week, well exceeding seventy (70) hours a week. Plaintiff was never

afforded a duty-free meal break. Plaintiff was never paid for overtime of any kind.

14. At all relevant times set forth herein while Plaintiff worked for Kitty Bungalow,

Plaintiff and Kitty Bungalow contemplated that Plaintiff would be paid remuneration or

compensation for all employment and labor performed. While some of the work performed by

Plaintiff for Kitty Bungalow involved caring for, nursing to health and finding homes for

abandoned kittens and cats in the Los Angeles, the majority of Plaintiff’s responsibilities, and the

majority of her time (in upwards of 75% or more), was expended on day-to-day ordinary business

operations as described in Paragraph 9 above to enable Kitty Bungalow to function, operate and

conduct business in order to carry out its primary business purpose of operating as a

cat/kitten/animal rescue.

5 COMPLAINT

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15. Due to Kitty Bungalow’s cash flow concerns, it chose not to pay Plaintiff despite its

obligations to do so under California wage and hour law. However, Plaintiff always anticipated, and

expected to be paid at all times relevant herein. To that end, at all times relevant herein, Plaintiff

continued to and did provide the services set forth in Paragraph 8 above.

16. Kitty Bungalow misclassified Plaintiff. From time to time, Kitty Bungalow paid

Plaintiff $20,000, evidencing a clear understanding that Plaintiff always understood she was entitled

to be paid, yet the $20,000 amount was below minimum wage for the hours Plaintiff was working.

Plaintiff always understood this was because Kitty Bungalow lacked sufficient funds but would

ultimately pay her when funds available or equity in the property available. Regardless, Kitty

Bungalow misclassified Plaintiff as either a volunteer or 1099 independent contractor when neither

was the case. Plaintiff was not a volunteer or independent contractor. Plaintiff alleges that she was,

or should have been classified as, a fulltime employee of Kitty Bungalow as it was her fulltime job

from 2009 to her departure in September 2018, and her only exclusive job in the subject time frame

at issue in this Complaint.

17. After discussions with Kitty Bungalow and its Board of Directors on the outstanding

pay issue, on or about September 15, 2018, Kitty Bungalow, by and through its Board of Directors,

agreed to pay Plaintiff some compensation (see Compensation Agreement, attached hereto as

Exhibit A), but did not agree to pay Plaintiff for all hours worked, minimum wage or overtime time

or for missed meal breaks, or reimburse for expenses, all of which such amounts still remain

outstanding, unpaid and owed. Indeed, the Compensation Agreement reserved Plaintiff’s rights to

seek additional amounts owed to her. As set forth in the Compensation Agreement, Defendants

agreed to pay Plaintiff $180,000 for back compensation owed, upon Plaintiff retiring from Kitty

Bungalow on September 24, 2018. However, in connection with entering into said Compensation

Agreement, Plaintiff did not agree that said $180,000 was all Plaintiff was owed or entitled to, nor

did Plaintiff release any claims relating to compensation due to her nor did Plaintiff release any

claims for additional statutory owed Plaintiff nor did Plaintiff release any of her rights or

Defendants’ obligations under California law relative to Cal. Labor Code §§ 201, 202, 204, 226(a),

226.7, 510, 512(a), 1194, 1197, 1198, 2800 and 2802.

6 COMPLAINT

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18. The first payment was due December 31, 2019, but was NOT paid. Defendants have

never made a payment to Plaintiff of the amounts due and contemplated in the Compensation

Agreement attached hereto as Exhibit A. Thus, $180,000 remains owed, and Defendants have

actually, and anticipatorily breached the entire contract by not making any payments.

19. Plaintiff is informed and believe, and based thereon allege, that Defendants own a

building in Los Angeles with substantial equity, and are in a position to make all such payments due

and owing to Defendants, but have chosen not to do so. Thus, Plaintiff was neither paid compliant

wage and hour compensation, reimbursed for expenses, or paid any of the contractually owed

Compensation contemplated in Exhibit 1.

FIRST CAUSE OF ACTION

(For Breach of Contract Against All Defendants, and DOES 1-20)

20. Plaintiff hereby re-alleges paragraphs 1 through 19, inclusive, and incorporates said

paragraphs by this reference as though fully set forth herein.

21. On September 15, 2018, Plaintiff and Defendants entered into the Compensation

Agreement attached hereto as Exhibit A, the terms of which are incorporated herein by reference as

if set forth in full.

22. As set forth in the Compensation Agreement, Defendants agreed to pay Plaintiff

$180,000, with the first payment due December 31, 2019 as set forth in Exhibit A. However,

Plaintiff did not release any compensation claims in connection with this agreement, nor release any

claims for additional amounts owed or to which Plaintiff is entitled to.

23. Plaintiff has performed all duties and obligations required of her under the terms of

the Compensation Agreement alleged herein.

24. In violation of the Compensation Agreement, Defendants did NOT make a payment

to Plaintiff when due on December 31, 2019 and have made no payments since that time.

Defendants have never made a payment to Plaintiff of the amounts due and contemplated in the

Compensation Agreement attached hereto as Exhibit A. Thus, $180,000 remains owed, and

Defendants have actually, and anticipatorily breached the entire contract by not making any

payments.

7 COMPLAINT

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25. As a direct and proximate result of the acts of Defendants, as alleged herein,

Defendants have caused, are causing, and will continue to cause actual damage to Plaintiffs in

amounts to be proven at the time of trial, but which amounts are in excess of the jurisdictional

minimum of this Court, and include without limitation (a) $180,000; (b) prejudgment interest owed

on said $180,000, on any and all amounts unpaid.

SECOND CAUSE OF ACTION

(For Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime) Against All

Defendants, and DOES 1-20)



27. California Labor Code section 1198 and the applicable Industrial Welfare

Commission ("IWC") Wage Order provide that it is unlawful to employ persons without

compensating them at a rate of pay either time-and-one-half or two-times that person's regular rate

of pay, depending on the number of hours worked by the person on a daily or weekly basis.

28. Specifically, the applicable IWC Wage Order provides that Defendants are and were

required to pay Plaintiff employed by Defendants, and working more than eight (8) hours in a day

or more than forty (40) hours in a workweek, at the rate of time-and-one-half for all hours worked

in excess of eight (8) hours in a day or more than forty ( 40) hours in a workweek.

29. The applicable IWC Wage Order further provides that Defendants are and were

required to pay Plaintiff overtime compensation at a rate of two times their regular rate of pay for

all hours worked in excess of twelve (12) hours in a day.

30. California Labor Code section 510 codifies the right to overtime compensation at

one-and-one-half times the regular hourly rate for hours worked in excess of eight (8) hours in a

day or forty (40) hours in a week or for the first eight (8) hours worked on the seventh day of work,

and to overtime compensation at twice the regular hourly rate for hours worked in excess of twelve

(12) hours in a day or in excess of eight (8) hours in a day on the seventh day of work.

31. During the relevant time period, Plaintiff worked in excess of eight (8) hours in a

day, and/or in excess of forty (40) hours in a week. In fact, Plaintiff worked seven (7) days a week

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for Defendants for on average ten (10) to fourteen (14) hours a day.

32. During the relevant time period, Defendants intentionally and willfully failed to pay

regular hourly wages or overtime wages owed to Plaintiff.

33. Defendants' failure to pay Plaintiff overtime compensation, as required by

California laws, violated the provisions of California Labor Code sections 510 and 1198, and is

therefore unlawful.

34. Pursuant to California Labor Code section 1194, Plaintiff is entitled to recover

unpaid overtime compensation, as well as interest, costs, and attorneys' fees.

THIRD CAUSE OF ACTION

(For Violation Of California Labor Code §§ 226.7 And 512(a) (Unpaid Meal Period

Premiums) Against All Defendants, and DOES 1-20)



36. At all relevant times, the IWC Order and California Labor Code sections 226.7 and

512(a) were applicable to Plaintiff’s employment by Defendants.

37. At all relevant times, California Labor Code section 226.7 provides that no employer

shall require an employee to work during any meal period mandated by an applicable order of the

California IWC.

38. At all relevant times, the applicable IWC Wage Order and California Labor Code

section 512(a) provide that an employer may not require, cause or permit an employee to work for a

work period of more than five (5) hours per day without providing the employee with a meal period

of not less than thirty (30) minutes, except that if the total work period per day of the employee is

no more than six (6) hours, the meal period may be waived by mutual consent of both the employer

and employee.

39. At all relevant times, the applicable IWC Wage Order and California Labor Code

section 512(a) further provide that an employer may not require, cause or permit an employee to

work for a work period of more than ten (10) hours per day without providing the employee with a

second uninterrupted meal period of not less than thirty (30) minutes, except that if the total hours

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worked is no more than twelve (12) hours, the second meal period may be waived by mutual

consent of the employer and the employee only if the first meal period was not waived.

40. During the relevant time period, Plaintiff worked for periods of time longer than six

(6) hours, and did not waive her legally-mandated meal periods by mutual consent, and was

required to work for periods longer than five (5) hours without an uninterrupted meal period of not

less than thirty (30) minutes.

41. During the relevant time period, Plaintiff had to work during meal periods and

Defendants failed to compensate Plaintiff the full meal period premium for work performed during

meal periods.

42. During the relevant time period, Defendants failed to pay Plaintiff the full meal

period premium due pursuant to California Labor Code section 226.7.

43. Defendants' conduct violates applicable IWC Wage Order and California Labor

Code sections 226.7 and 512(a).

44. Pursuant to applicable IWC Wage Order and California Labor Code section 226. 7(b

), Plaintiff is entitled to recover from Defendants one additional hour of pay at the employee's

regular rate of compensation for each work day that the meal period is not provided.

FOURTH CAUSE OF ACTION

(For Violation Of California Labor Code §§ 1194, 1197, And 1197.1 (Unpaid Minimum

Wages) Against All Defendants, and DOES 1-20)



46. At all relevant times, California Labor Code sections 1194, 1197, and 1197.1

provide that the minimum wage to be paid to employees, and the payment of a lesser wage than the

minimum so fixed is unlawful.

47. During the relevant time period, Defendants failed to pay minimum wage to Plaintiff

as required, pursuant to California Labor Code sections 1194, 1197, and 1197.1.

48. Defendants' failure to pay Plaintiff minimum wage as required violates California

Labor Code sections 1194, 1197, and 1197.1. Pursuant to those sections Plaintiff is entitled to

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recover the unpaid balance of her minimum wage compensation as well as interest, costs, and

attorney's fees, and liquidated damages in an amount equal to the wages unlawfully unpaid and

interest thereon.

49. Pursuant to California Labor Code section 1197.1, Plaintiff is entitled to recover a

penalty of $100.00 for the initial failure to timely pay each employee minimum wages, and $250.00

for each subsequent failure to pay each employee minimum wages. Pursuant to California Labor

Code section 1194.2, Plaintiff is entitled to recover liquidated damages in an amount equal to the

wages unlawfully unpaid and interest thereon.

FIFTH CAUSE OF ACTION

(For Violation Of California Labor Code §§ 201 And 202 (Final Wages Not Timely Paid)

Against All Defendants, and DOES 1-20)



51. At all relevant times herein set forth, California Labor Code sections 201 and 202

provide that if an employee quits his or her employment, his or her wages shall become due and

payable not later than seventy-two (72) hours thereafter, unless the employee has given seventy-two

(72) hours' notice of his or her intention to quit, in which case the employee is entitled to his or her

wages at the time of quitting.


Plaintiff who is no longer employed by Defendants her wages, earned and unpaid, within seventy-

two (72) hours of their leaving Defendants' employ.

53. Defendants' failure to pay Plaintiff who is no longer employed by Defendants' her

wages, earned and unpaid, within seventy-two (72) hours of her leaving Defendants' employ, is in

violation of California Labor Code sections 201 and 202.

54. California Labor Code section 203 provides that if an employer willfully fails to pay

wages owed, in accordance with sections 201 and 202, then 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 is

commenced; but the wages shall not continue for more than thirty (30) days.

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55. Plaintiff is entitled to recover from Defendants the statutory penalty wages for each

day they were not paid, up to a thirty (30) day maximum pursuant to California Labor Code section

203.

SIXTH CAUSE OF ACTION

(For Violation Of California Labor Code § 204 (Wages Not Timely Paid During Employment)




57. At all times herein set forth, California Labor Code section 204 provides that all

wages earned by any person in any employment between the 1st and 15th days, inclusive, of any

calendar month, other than those wages due upon termination of an employee, are due and payable

between the 16th and the 26th day of the month during which the labor was performed.


wages earned by any person in any employment between the 16th and the last day, inclusive, of any

calendar month, other than those wages due upon termination of an employee, are due and payable

between the 1st and the 10th day of the following month.


wages earned for labor in excess of the normal work period shall be paid no later than the payday

for the next regular payroll period.


Plaintiff all wages due to her, within any time period permissible under California Labor Code

section 204.

61. Plaintiff is entitled to recover all remedies available for violations of California

Labor Code section 204.

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SEVENTH CAUSE OF ACTION

(For Violation Of California Labor Code § 226(a) (Non-Compliant Wage Statements) Against

All Defendants, and DOES 1-20)



63. At all material times set forth herein, California Labor Code section 226(a) provides

that every employer shall furnish each of his or her employees an accurate itemized statement in

writing showing ( 1) gross wages earned, (2) total hours worked by the employee, (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 his or her social security number, (8)

the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in

effect during the pay period and the corresponding number of hours worked at each hourly rate by

the employee. The deductions made from payments of wages shall be recorded in ink or other

indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a

record of the deductions shall be kept on file by the employer for at least three years at the place of

employment or at a central location within the State of California.

64. Defendants intentionally and willfully failed to provide Plaintiff with complete and

accurate wage statements. The deficiencies include but are not limited to the failure to include the

total number of hours worked by Plaintiff.

65. As a result of Defendants' violation of California Labor Code section 226(a),

Plaintiff has suffered injury and damage to their statutorily protected rights.

66. More specifically, Plaintiff has been injured by Defendants' intentional and willful

violation of California Labor Code section 226(a) because they were denied both their legal right to

receive, and their protected interest in receiving, accurate and itemized wage statements pursuant to

California Labor Code section 226(a).

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67. Plaintiff is entitled to recover from Defendants the greater of their actual damages

caused by Defendants' failure to comply with California Labor Code section 226(a), or an aggregate

penalty not exceeding four thousand dollars per employee.

EIGHTH CAUSE OF ACTION

(For Violation of California Labor Code §§ 2800 and 2802 (Unreimbursed Business Expenses)




69. Pursuant to California Labor Code sections 2800 and 2802, an employer must

reimburse its employee for all necessary expenditures incurred by the employee in direct

consequence of the discharge of his or her job duties or in direct consequence of his or her

obedience to the directions of the employer.

70. Plaintiff incurred necessary business-related expenses and costs that were not fully

reimbursed by Defendants.

71. Defendants have intentionally and willfully failed to reimburse Plaintiff for all

necessary business-related expenses and costs.

72. Plaintiff is entitled to recover from Defendants her business-related expenses and

costs incurred during the course and scope of their employment, plus interest accrued from the date

on which the employee incurred the necessary expenditures at the same rate as judgments in civil

actions in the State of California.

NINTH CAUSE OF ACTION

(For Violation Of California Business & Professions Code §§ 17200, Et Seq. Against All

Defendants, and DOES 1-20)



74. Defendants' conduct, as alleged herein, has been, and continues to be, unfair,

unlawful and harmful to Plaintiff.

///

14 COMPLAINT

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75. Defendants' activities as alleged herein are violations of California law, and

constitute unlawful business acts and practices in violation of California Business & Professions

Code section 17200, et seq.

76. A violation of California Business & Professions Code section 17200, et seq. may be

predicated on the violation of any state or federal law. In this instant case, Defendants' policies and

practices violate Cal. Labor Code §§ 201, 202, 204, 226(a), 226.7, 510, 512(a), 1194, 1197, 1198,

2800 and 2802.

77. As a result of the herein described violations of California law, Defendants

unlawfully gained an unfair advantage over other businesses.

78. Plaintiff has been personally injured by Defendants' unlawful business acts and

practices as alleged herein, including but not necessarily limited to the loss of money and/or

property.

79. Pursuant to California Business & Professions Code sections 17200, et seq., Plaintiff

is entitled to restitution of the wages withheld and retained by Defendants during a period that

commences four years preceding the filing of this Complaint.

DEMAND FOR JURY TRIAL

80. Plaintiff, individually, and on behalf of other members of the general public

similarly situated, requests a trial by jury.

PRAYER

WHEREFORE, the Plaintiff prays for judgment against the Defendants, and each of them,

as follows:

As to the First Cause of Action

1. For actual and compensatory damages of not less than $180,000.00 according to

proof;

2. For pre-judgment interest on said sum; and

3. For such other and further relief as the Court may deem just and proper.

///

///

15 COMPLAINT

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As to the Second Cause of Action

4. That the Court declare, adjudge and decree that Defendants violated California

Labor Code sections 510 and 1198 and applicable IWC Wage Orders by willfully failing to pay all

overtime wages due to Plaintiff;

5. For general unpaid wages at overtime wage rates and such general and special

damages as may be appropriate;

6. For pre-judgment interest on any unpaid overtime compensation commencing from

the date such amounts were due;

7. For reasonable attorneys' fees and costs of suit incurred herein pursuant to4

California Labor Code section 1194; and


As to the Third Cause of Action


Labor Code sections 226. 7 and 512 and applicable IWC Wage Orders by willfully failing to

provide all meal periods (including second meal periods) to Plaintiff;

10. That the Court make an award to Plaintiff of one (1) hour of pay at each employee's

regular rate of compensation for each workday that a meal period was not provided;

11. For all actual, consequential, and incidental losses and damages, according to proof;

12. For premium wages pursuant to California Labor Code section 226.7(c);

13. For pre-judgment interest on any unpaid wages from the date such amounts were

due;

14. For reasonable attorneys' fees and costs of suit incurred herein; and


As to the Fourth Cause of Action


Labor Code sections 1194, 1197, and 1197.1 by willfully failing to pay minimum wages to

Plaintiff;

///

16 COMPLAINT

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17. For general unpaid wages and such general and special damages as may be

appropriate;

18. For statutory wage penalties pursuant to California Labor Code section 1197.1 for

Plaintiff in the amount as may be established according to proof at trial;

19. For pre-judgment interest on any unpaid compensation from the date such amounts

were due;

20. For reasonable attorneys' fees and costs of suit incurred herein pursuant to California

Labor Code section 1194(a);

21. For liquidated damages pursuant to California Labor Code section 1194.2; and


As to the Fifth Cause of Action


Labor Code sections 201, 202, and 203 by willfully failing to pay all compensation owed at the

time Plaintiff ceased to be employed by Defendants;


25. For statutory wage penalties pursuant to California Labor Code section 203 for

Plaintiff who has left Defendants' employ;


were due; and


As to the Sixth Cause of Action


Labor Code section 204 by willfully failing to pay all compensation owed at the time required by

California Labor Code section 204 to Plaintiff according to proof;


30. For statutory wage penalties pursuant to California Labor Code section 204 for

Plaintiff who has left Defendants' employ;

///

17 COMPLAINT

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were due; and


As to the Seventh Cause of Action

33. That the Court declare, adjudge and decree that Defendants violated the record

keeping provisions of California Labor Code section 226(a) and applicable IWC Wage Orders as to

Plaintiff, and willfully failed to provide accurate itemized wage statements thereto;

34. For actual, consequential and incidental losses and damages, according to proof;

35. For statutory penalties pursuant to California Labor Code section 226(e);

36. For injunctive relief to ensure compliance with this section, pursuant to California

Labor Code section 226(h); and


As to the Eighth Cause of Action


Labor Code sections 2800 and 2802 by willfully failing to reimburse Plaintiff for all necessary

business-related expenses as required by California Labor Code sections 2800 and 2802;

39. For actual, consequential and incidental losses and damages, according to proof;

40. For the imposition of civil penalties and/or statutory penalties;

41. For reasonable attorneys' fees and costs of suit incurred herein; and


As to the Ninth Cause of Action

43. That the Court decree, adjudge and decree that Defendants violated California

Business and Professions Code sections 17200, et seq. by failing to provide Plaintiff all regular and

overtime compensation due to her, failing to provide all meal periods to Plaintiff, failing to pay at

least minimum wages to Plaintiff, failing to pay Plaintiffs wages timely as required by California

Labor Code section 201, 202 and 204 and by violating California Labor Code sections 226(a).

44. For restitution of unpaid wages to Plaintiff and all pre-judgment interest from the

day such amounts were due and payable;

18 COMPLAINT

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45. For the appointment of a receiver to receive, manage and distribute any and all funds

disgorged from Defendants and determined to have been wrongfully acquired by Defendants as a

result of violation of California Business and Professions Code sections 17200, et seq.; and


Dated: May 19, 2021 MICHELMAN & ROBINSON, LLP

By: Marc R. Jacobs, Esq. Attorney for Plaintiff SHAWN SIMON

EXHIBIT 1

AttorneyorPartywithoutAttorney:

MARCR.JACOBS(#185924)

MICHELMAN&ROBINSON,LLP

10880WilshireBlvd,19thFloor

LosAngeles,CA90024

TelephoneNo: (310)564-2670

AttorneyFor: PlaintiffRef.No.orFileNo.:

ForCourtUseOnly

InsertnameofCourt,andJudicialDistrictandBranchCourt:

SUPERIORCOURTOFTHESTATEOFCALIFORNIA

FORTHECOUNTYOFLOSANGELES-CENTRALDISTRICT

Plaintiff: SHAWNSIMONS

Defendant: KITTYBUNGALOWCHARMSCHOOLFORWAYWARDCATS,aCalifornia

corporation;ETAL

AFFIDAVITOFDUEDILIGENCE HearingDate: Time: Dept/Div: CaseNumber:

21STCV18906

1. I,HenryFlores2013126339,LosAngeles,andanyemployeeorindependentcontractorsretainedbyFIRSTLEGALareand

wereonthedatesmentionedhereinovertheageofeighteenyearsandnotapartytothisaction.Personalservicewas

attemptedonsubjectKITTYBUNGALOWCHARMSCHOOLFORWAYWARDCATS,aCaliforniacorporationasfollows:

2. Documents:Summons;Complaint;CivilCaseCoverSheet;CivilCaseCoverSheetAddendumandStatementofLocation

(CertificateofGroundsforAssignmenttoCourthouseLocation);NoticeofCaseAssignmentUnlimitedCivilCase;First

AmendedGeneralOrder;VoluntaryEfficientLitigationStipulations;Stipulation-DiscoveryResolution;Stipulation-Early

OrganizationalMeeting;InformalDiscoveryConference;StipulationAndOrder-MotionsInLimine;AlternativeDispute

Resolution(ADR)InformationPackage

AttemptDetail

1)UnsuccessfulAttemptby:HenryFlores(2013126339,LosAngeles)on:May21,2021,11:00amPDTat902ChestnutAve,Long

Beach,CA90813

Permale,subjectisnotinatthistime.

2)UnsuccessfulAttemptby:HenryFlores(2013126339,LosAngeles)on:May23,2021,7:25pmPDTat902ChestnutAve,Long

Beach,CA90813

Noansweratdoornonoiseormovementheardinside


Beach,CA90813

Noansweratdoornonoiseormovementheardinsideotherthanthe2largedogs.

AFFIDAVITOF

DUEDILIGENCE

5701421

(4662704)

Page1of3





LosAngeles,CA90024



ForCourtUseOnly






corporation;ETAL


21STCV18906

AttemptDetail(Continued)


Beach,CA90813

Noansweratdoor,dogsinsidebarkingandrunningaround.Nosignsofactivityinside.

5)UnsuccessfulAttemptby:HenryFlores(2013126339,LosAngeles)on:Jun3,2021,8:04amPDTat902ChestnutAve,Long

Beach,CA90813

Noansweratdoor,noiseandmovementheardbutitwasfrom2dogsinsidebarking.Noothersignsofactivity.

6)UnsuccessfulAttemptby:HenryFlores(2013126339,LosAngeles)on:Jun6,2021,4:15pmPDTat902ChestnutAve,Long

Beach,CA90813

Noansweratdoornonoiseormovementheardinside.


Beach,CA90813

Noansweratdoor,dogsbarkinginside,nosignsofactivityinside.


Beach,CA90813

Noansweratdoor,nonoiseormovementheardinside.Nodogsinside,nocarsindriveway.

AFFIDAVITOF

DUEDILIGENCE

5701421

(4662704)

Page2of3





LosAngeles,CA90024



ForCourtUseOnly






corporation;ETAL


21STCV18906

RecoverablecostPerCCP1033.5(a)(4)(B)

3. Personwhoservedpapers

a. Name: HenryFlores

b. Address: FIRSTLEGAL

1517W.BeverlyBlvd.

LOSANGELES,CA90026

c. Telephonenumber: (213)250-1111

d. Thefeeforservicewas: $79.56

e. Iam:

(1) notaregisteredCaliforniaprocessserver.

(2) exemptfromregistrationunderBusinessandProfessionsCodesection22350(b).

(3) aregisteredCaliforniaprocessserver:

(i) owner employee independentcontractor

(ii) RegistrationNo: 2013126339

(iii) County: LosAngelesCounty

4. IdeclareunderpenaltyofperjuryunderthelawsoftheStateofCaliforniaandunderthelawsoftheUnitedStatesofAmericathat

theforegoingistrueandcorrect.

06/16/2021

(Date)

(Signature)

AFFIDAVITOF

DUEDILIGENCE

5701421

(4662704)

Page3of3

X

X


MARCR.JACOBS,(SBN:185924)



LosAngeles,CA90024



ForCourtUseOnly


SUPERIORCOURTFORTHESTATEOFCALIFORNIA

COUNTYOFLOSANGELES–STANLEYMOSKCOURTHOUSE

Plaintiff: SHAWNSIMONS,

Defendant: KITTYBUNGALOWCHARMSCHOOLFORWAYWARDCATS,

aCaliforniacorporation;etal.


21STCV18906

1. I,LeonMoore4303,LosAngeles,andanyemployeeorindependentcontractorsretainedbyFIRSTLEGALareandwereon

thedatesmentionedhereinovertheageofeighteenyearsandnotapartytothisaction.Personalservicewasattemptedon

subjectKITTYBUNGALOWCHARMSCHOOLFORWAYWARDCATS,aCaliforniacorporationasfollows:

2. Documents:Summons,Complaint;CivilCaseCoverSheet;CivilCaseCoverSheetAddendumandStatementofLocation

(CertificateofGroundsforAssignmenttoCourthouseLocation);NoticeofCaseAssignment-UnlimitedCivilCase;Noticeof

CaseManagementConference;FirstAmendedGeneralOrder;VoluntaryEfficientLitigationStipulations;Stipulation-

DiscoveryResolution;Stipulation-EarlyOrganizationalMeeting;InformalDiscoveryConference;StipulationAndOrder-

MotionsInLimine;AlternativeDisputeResolution(ADR)InformationPackage

AttemptDetail

1)UnsuccessfulAttemptby:LeonMoore(4303,LosAngeles)on:May29,2021,9:15amPDTat2032W.MartinLutherKingJr.

Blvd.,LosAngeles,CA90062

Givenaddressisaresidence,andthepropertyisgated.Noanswerovertheintercomatthegate.Noaccesstothefrontdoor.

2)UnsuccessfulAttemptby:LeonMoore(4303,LosAngeles)on:Jun1,2021,7:20pmPDTat2032W.MartinLutherKingJr.Blvd.,

LosAngeles,CA90062

Noansweratgateintercom;Itriedseveraltimes.Nolightsvisibleinside.Iwillmakemynextattemptduringtheday.

3)UnsuccessfulAttemptby:LeonMoore(4303,LosAngeles)on:Jun5,2021,2:09pmPDTat2032W.MartinLutherKingJr.Blvd.,

LosAngeles,CA90062

Onceagain,noanswerovertheintercom;Itriedseveraltimes.Twocarsareparkedintheyard.

AFFIDAVITOF

DUEDILIGENCE

5722292

(4667735)

Page1of2


MARCR.JACOBS,(SBN:185924)



LosAngeles,CA90024



ForCourtUseOnly


SUPERIORCOURTFORTHESTATEOFCALIFORNIA

COUNTYOFLOSANGELES–STANLEYMOSKCOURTHOUSE

Plaintiff: SHAWNSIMONS,

Defendant: KITTYBUNGALOWCHARMSCHOOLFORWAYWARDCATS,

aCaliforniacorporation;etal.,


21STCV18906

RecoverablecostPerCCP1033.5(a)(4)(B)

3. Personwhoservedpapers

a. Name: LeonMoore

b. Address: FIRSTLEGAL

1517W.BeverlyBlvd.

LOSANGELES,CA90026

c. Telephonenumber: (213)250-1111

d. Thefeeforservicewas: $81.94

e. Iam:

(1) notaregisteredCaliforniaprocessserver.

(2) exemptfromregistrationunderBusinessandProfessionsCodesection22350(b).

(3) aregisteredCaliforniaprocessserver:

(i) owner employee independentcontractor

(ii) RegistrationNo: 4303

(iii) County: LosAngeles

4. IdeclareunderpenaltyofperjuryunderthelawsoftheStateofCaliforniaandunderthelawsoftheUnitedStatesofAmericathat

theforegoingistrueandcorrect.

06/09/2021

(Date)

(Signature)

AFFIDAVITOF

DUEDILIGENCE

5722292

(4667735)

Page2of2

X

X

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE

TRADEMARK TRIAL AND APPEAL BOARD

________________________________________________________________________

KITTY BUNGALOW - CHARM SCHOOL FOR WAYWARD CATS,

a non-profit public benefit corporation,

Opposer

V.

SHAWN SIMONS,

Applicant

• Opposition No. 91252410

• July 6, 2021

MOTION TO SUSPEND PROCEEDING FOR CIVIL ACTION RESPONSE

In response to the correspondence of June 21, 2021 asking for the additional documentation

of the complaint (pleadings) I am happy to oblige this request within a timely fashion as

Attachment 1. While the Motion to Suspend Proceeding For Civil Action did come at the

end of the Applicants defendants trial period, the Applicant had already filed over 125

attachments during the defense period many which clearly showed the textual IP was

conceived and used solely by the Applicants years prior to her expanded rescue reach.

Applicant and her council in the Civil Case had been looking to file this motion earlier but

wanted to have served the Opposers in the Civil Filing court case 21STCV18906, filed

5/20/2021, in The Superior Court of California in Los Angeles County so all parties were

clearly informed. However as seen in Attachment 2 both professional service agents were

unsuccessful through eleven attempts of service. Therefore the Applicant had to move

forward with the motion on the date filed.

Please note in Silvia Schillo’s Deposition, in which she includes dozens and dozens of

attachments of the use of the mark. However, many of those same attachments will be used in

the civil case as the Applicant handled the use of the mark, branding, and advertising and

many of those attachments were written, conceived, and implemented by the Applicant.

Since the civil case is a breach of contract and both parties used the contract in their TM

evidentiary filings, this will be at the core of the civil complaint. Showing the unpaid work

with the mark by the applicant will also be on display at the civil case. Also put into evidence

by both parties is the letter written by their TM attorney Ms Nyby stating their intent to

breach the contract in response to an offer from the Applicant granting a free licensing

agreement to the organization. This will also be filed as evidence in the civil case.

Due to the likelihood of mediation on this civil case we believe that a workable agreement

can be found through the processes of the civil case. I therefore move to defer the trademark

case until the civil case concludes. There should not be two cases with the same evidence

running at the same time. The board should defer until the civil case concludes so as not to

prejudice any of the evidence prior to mediation and court proceedings.

Respectfully,

Shawn Simons

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing MOTION TO SUSPEND

PROCEEDING FOR CIVIL ACTION was served on OPPOSERS at the email

correspondence address identified in the records of the United States Patent and

Trademark Office all in accordance with Trademark Rules 2.111 and 2.119, this July 6,

2021, by sending same, via Electronic Mail to:

[email protected] @gmail.com

__/s/__Shawn Simons___