Schakel vs. MLM Distributors, Inc.

However, “where facts appearing in attached exhibits or judicially noticed documents contradict, or are inconsistent with, the complaint's allegations, we must rely on the facts in the exhibits and judicially noticed documents.” (Jimenez vs. Mrs. Gooch’s Natural Foods Markets, Inc. (2023) 95 Cal.App.5th 645, 653.)

Although courts should take a liberal view of inartfully drawn pleadings, (see Code Civ. Proc., § 452), it remains essential that a pleading set forth the actionable facts relied upon with sufficient precision to inform the responding party of the matters that the pleading party is alleging, and what remedies or relief is being sought, (see Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)

Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a.))

Joint Employer

Defendant contends that the entire FAC fails because Plaintiff failed to adequately plead that Defendant Flowers was Plaintiff’s employer.

However, the following allegations, when read liberally and in context, are sufficient to plead that Defendant Flowers had a joint employer relationship with Plaintiff:

• In May 2018, Plaintiff was hired “to drive routes that [Defendant MLM Distributors Inc. (Defendant MLM)] received per its contract with FLOWERS, while at all times working out of FLOWERS’ warehouse located at 7311 Doig Drive in Garden Grove, California 92841. As part of her duties as a driver, Plaintiff loaded and unloaded boxes of bread, made an average of eleven (11) delivery stops per day, and delivered approximately forty-five (45) to sixty (60) trays of bread at each stop. Plaintiff also stocked bread products in each store she serviced.” (FAC, ¶ 23.)

• “On a day-to-day basis, FLOWERS exercised control and direction over [Defendant MLM’s] employees’ work, including Plaintiff’s work. . . . FLOWERS’

employees, including via its manager, TYLER, supervised Plaintiff and [Defendant MLM’s] other employees, dictated their hours worked, their breaks, their overtime opportunities and, thus, their income. [Defendant MLM’s] employees, including Plaintiff, reported to, and received work from, FLOWERS and its manager, TYLER, while working out of FLOWERS’ facility. Where guidance was needed or problems needed solving, FLOWERS’ managers, including TYLER, provided such to . . . Plaintiff.” (FAC, ¶ 24.)

• “Thus, at all times, FLOWERS dictated the working conditions and expectations of the work of [Defendant MLM’s] employees, including Plaintiff, as well as making decisions as to pay, hours worked, duties, discipline, supervision, and even whether an employee of [Defendant MLM], including Plaintiff, would be hired or fired from their work performed for FLOWERS’ benefit.” (Ibid.)

• “[I]n addition to that joint employment relationship, [Defendant MLM] and FLOWERS consistently delegated to each other, depending on the occasion, various [HR] decisions as to Plaintiff and their other collective employees, including as authorized business-entity agents under the [FEHA]. As a result of such delegation to each other as authorized business-entity agents, both [Defendant MLM] and FLOWERS were, at all times, an employer of Ms. Schakel and other employees as defined under Government Code §12925(d.)” (Id., ¶ 25, italics original.)

• “Throughout Plaintiff’s employment with Defendant and FLOWERS, one of their employees, DANIEL, consistently engaged in harassing conduct toward Plaintiff based on her race, national origin, and/or ethnicity. Some, among many, of DANIEL’s harassing comments include the following: ‘I hate Mexicans,’ ‘fucking Mexicans,’ ‘fucking beaners,’ and ‘go back to your country.’” (Id., ¶ 26.)

• “In response to the harassing comments made by DANIEL, Plaintiff often complained

about such unlawful harassment to Defendant and FLOWERS, including FLOWERS’ managing agents. Despite these repeated complaints, Defendant and FLOWERS, each and jointly, failed to take any remedial or corrective action, generally ignoring Plaintiff altogether.” (Id., ¶ 27.)

• After Plaintiff made these complaints about harassment, “Defendant and FLOWERS began targeting Plaintiff as acts of retaliation against Plaintiff. Specifically, Defendant and FLOWERS slowly but surely reduced Plaintiff’s work assignment until, eventually, there was no work provided at all.” (Id., ¶ 28.)

The FAC adequately alleges that Defendant Flowers had indirect control over the terms and conditions of Plaintiff’s employment, including that Plaintiff reported to and received assignments from Flowers’ manager “Tyler”; that Plaintiff worked out of Defendant Flowers’ facility; that human resources responsibilities were delegated to Defendant Flowers, including hiring and firing decisions; and that Defendant Flowers had indirect control and/or authority to retaliate and affect Plaintiff’s schedule.

These allegations, which the court must take as true, are sufficient to support joint employer liability on the part of Defendant Flowers. (See Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 273 [“[A]n employer’s business entity agents can be held directly liable under FEHA for employment discrimination in appropriate circumstances when the businessentity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.”]; Medina v. Equilon Enterprises, LLC (2021) 68 Cal.App.5th 868, 880 [“[An entity’s] strict control and ability to terminate the Member and close down the Hotel at their discretion was indirect control over plaintiff and the employees.”]; Jimenez v.

U.S. Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 192, 200–201 [joint employment of temporary agency workers when employer exercises sufficient control over working conditions].)

1st Cause of Action

“One form of employment discrimination is harassment on the basis of race or national origin. To establish a prima facie case of a racially hostile work environment, Thompson was required to show that (1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the Department is liable for the harassment.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876, citations omitted, quoting Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129.)

Here, Defendant Flowers contends that the FAC does not sufficiently plead that it was liable for the harassment because there is no allegation that Defendant Flowers or its employees harassed Plaintiff.

The FAC alleges that Defendant Daniel Aguilera is the only person who harassed Plaintiff:

Throughout Plaintiff’s employment with Defendant and FLOWERS, one of their employees, DANIEL, consistently engaged in harassing conduct toward Plaintiff based on her race, national origin, and/or ethnicity. Some, among many, of DANIEL’s harassing comments include the following: “I hate Mexicans,” “fucking Mexicans,” “fucking beaners,” and “go back to your country.”

(FAC, ¶ 26.)

Statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Thus, a plaintiff “must set forth factual allegations that sufficiently state all required elements of [a] cause of action . . . and, [a]llegations must be factual and specific, not vague or conclusory.” (Rakestraw v. Cal. Physicians’ Serv. (2000) 81 Cal. App. 4th 39, 43.)

Here, the FAC fails adequately plead with particularity that Defendant Flowers was responsible for Defendant Daniel Aguilera’s conduct.

Therefore, the court will sustain the demurrer to the 1st Cause of Action.

2nd Cause of Action

To state a claim for retaliation under the California Fair Employment and Housing Act (“FEHA”), a plaintiff must allege that (1) she engaged in protected activity; (2) the employer subjected her to an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal. App. 4th 245, 367.)

Defendant Flowers contends that the FAC fails to adequately allege that Plaintiff engaged in protected activity and that there is a causal link between the protected activity and adverse action.

Given that this is a statutory cause of action, Plaintiff cannot rely on vague and conclusory allegations.

For example, Plaintiff fails to allege when she made complaints; to whom such complaints were made; the substance of the complaints; and how the complaints were communicated to Defendant Flowers.

Thus, the court will sustain the demurrer to the 2nd Cause of Action.

3rd Cause of Action

The Fair Employment and House Act (FEHA) provides that it is an unlawful employment practice: “(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).)

Section 12940(k) “creates a separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages.” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.)

Such a claim requires a plaintiff to prove: (1) he or she was an employee; (2) subject to

harassment/discrimination/retaliation in the course of employment; (3) the employer failed to take all reasonable steps to prevent the harassment/discrimination/retaliation; (4) the plaintiff was harmed; and (5) the employer's failure to take all reasonable steps to prevent harassment/ discrimination/retaliation was a substantial factor in causing the plaintiff's harm. (See CACI 2527.)

Thus, a cause of action for failure to prevent discrimination or harassment is contingent upon a viable claim of discrimination or harassment. (Dickson v. Burke Williams, Inc., supra, 234 Cal.App.4th at p. 1314.)

In light of the fact that Plaintiff has failed to make out a viable cause of action for harassment and retaliation against Defendant Flowers, the court will sustain the demurrer to the 3rd Cause of Action.

4th Cause of Action

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employeremployee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Garcia-Brower v. Premier Auto. Imports of CA, LLC (2020) 55 Cal. App. 5th 961, 973.)

Defendant Flowers argues that the FAC fails to allege that Defendant Flowers was Plaintiff’s employer and that Defendant Flowers terminated Plaintiff.

For the reasons set forth above, the FAC sufficiently pleads a joint employer relationship between Plaintiff and Defendant Flowers.

Further, the FAC asserts that “In or around April 2025, following Plaintiff’s latest complaints of harassment, [Defendant MLM] and FLOWERS committed their final act of retaliation by wrongfully terminating Plaintiff.” (FAC, ¶ 29.)

Accordingly, the court will overrule the demurrer to the 4th Cause of Action.

5th through 11th Causes of Action

Defendant Flowers contends that the FAC fails to plead that Defendant Flowers was Plaintiff’s employer and/or that Defendant Flowers was responsible for paying Plaintiff’s wages or providing meal and rest breaks to Plaintiff.

However, for the reasons set forth above, the FAC sufficiently alleges a joint employer relationship between Plaintiff and Defendant Flowers.

The FAC also alleges that an employer is responsible for paying wages and providing meal and rest breaks to its employees, and that both Defendant MLM and Defendant Flowers failed to do so. (See FAC, ¶¶ 72-74, 79-80, 84-86, 91-99, 102-105, 109-114, 117-120.)

Therefore, the court will overrule the demurrer to the 5th through 11th Causes of Action.

12th Cause of Action

Defendant Flowers asserts that this cause of action is derivative of the causes of action alleging Labor Code violations and fails with them.

However, the court has overruled the demurrer to the causes of action alleging Labor Code violations. Therefore, the FAC’s PAGA claim is still viable.

Defendant Flowers also contends that Plaintiff failed to provide online written notice to the Labor and Workforce Department Agency prior to asserting this cause of action.

However, the FAC alleges that notice was given to the LWDA. (See FAC, ¶¶ 125-126).

Thus, the court will overrule the demurrer to the 12th Cause of Action.

Leave to Amend

“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)

However, it is the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) In order to meet this burden, a plaintiff may submit a proposed amended complaint or enumerate facts and demonstrate how those facts establish a cause of action. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)

Nonetheless, “for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” (Eghtesad v. State Farm General Insurance. Co. (2020) 51 Cal.App.5th 406, 411, quoting King v. Mortimer (1948) 83 Cal.App.2d 153, 158; see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 [“Only rarely should a demurrer to an initial complaint be sustained without leave to amend.”].)

As the Court of Appeal has explained: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, Plaintiff requests leave to amend and has not had a prior opportunity to amend in response to the court’s ruling on a demurrer. Therefore, the court will exercise its discretion and grant leave to amend.

The parties are reminded that, when leave to amend is granted upon the sustaining of a demurrer or motion to strike, amendments are limited to the issues addressed in the court’s ruling and generally may not include amendments to causes of action not addressed in the ruling or the addition of new causes of action. (See Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”].)

Motion to Strike

Defendant Flowers Foods, Inc.’s Motion to Strike Plaintiff’s Complaint is GRANTED with 15 days leave to amend.

If Plaintiff Sanjuana Schakel does not amend the First Amended Complaint within the period of time stated above, Defendant Flowers Foods, Inc. shall file an answer or other pleading in response to the remaining causes of action of the First Amended Complaint within 10 days of the expiration of the period of time to amend. (See Cal. Rules of Court rule 3.1320(j.))

Pending Motion

Defendant Flowers Foods, Inc. (Defendant Flowers) moves to strike allegations related to and the prayer for relief for punitive damages from First Amended Complaint (FAC) filed by Plaintiff Sanjuana Schakel.

Standard for Motion to Strike

A party may move to strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.)

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim, or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

A party may also request to strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Specifically, conclusory allegations that are not supported by factual allegations in the complaint may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

For example, prayers for relief that lack factual foundation may be stricken from a complaint. (See Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63 [trial court properly struck prayer for punitive damages where

complaint failed to allege sufficient facts to show that defendant acted with malice, oppression, or fraud].)

The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may judicially notice. (See Code Civ. Proc., § 437.)

However, pleadings are to be construed liberally with a view to substantial justice. (Code Civ. Proc., § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010).)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255, citations omitted.)

Striking Punitive Damages

To obtain punitive damages, a plaintiff must plead and prove one of the following: malice, oppression, or fraud. (See Civil Code, § 3294, subd. (a).)

“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code, § 3294, subd. (a)(1).)

“Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civil Code, § 3294, subd. (a)(2).)

“Fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civil Code, § 3294, subd. (a)(3).)

In order to survive a motion to strike, a complaint must not only allege in general terms oppression, fraud, or malice, but also plead ultimate facts in

support. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”], citations omitted.)

Conduct carried on with a willful and conscious disregard of the rights or safety of others, but that is not “despicable,” will not support an award of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

“Despicable conduct” refers to circumstances that are so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (Ibid.; Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Such conduct has been described as “having the character of outrage frequently associated with crime.” (Scott v. Phoenix Schools, Inc., supra, 175 Cal.App.4th at p. 715.)

“Consequently, to establish malice, ‘it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent or even reckless.’” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044, quoting Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

“The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210, citations and quotation marks omitted.)

Discriminatory conduct that was harassing or retaliatory has been found to be sufficient to support punitive damages. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 713 [strict attendance policy that did not reasonably accommodate persons with disabilities could support jury award of punitive damages]; Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 428 [corporate policy that reduced compensation for

older managers after employee filed an EEOC complaint could support jury award of punitive damages].)

However, the court has determined that the FAC does not state viable causes of action for harassment, retaliation, or failure to prevent harassment and retaliation.

Further, to recover punitive damages against an employer defendant based on the acts of its employee, the plaintiff must plead facts showing that the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or [wrongful] act must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code, § 3294, subd. (b).)

“[I]n performing, ratifying, or approving the malicious conduct, the agent must be acting as the organization’s representative, not in some other capacity.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 723, italics original.) This “concept assumes that such individual was acting in a corporate or employment capacity when the conduct giving rise to the punitive damages claim against the employer occurred.” (Ibid., italics original; see also CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261- 1262 [punitive damages may be awarded against employer under theory of vicarious liability].)

The FAC does not sufficient plead that officers, directors, or managing agents of Defendant Flowers engaged in, authorized, or ratified the policy that supports an award punitive damages.

The court will grant the motion to strike.

Leave to Amend

In ruling on a motion to strike, the court employs the same liberality to amend as used for demurrers. As long as there is a reasonable possibility that plaintiffs can cure the defects, leave to amend is appropriate. (See Grieves v.

Superior Court (1984) 157 Cal.App.3d 159, 168; Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360.)

However, it is the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) In order to meet this burden, a plaintiff may submit a proposed amended complaint or enumerate facts and demonstrate how those facts establish a cause of action. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)

Nonetheless, “for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” (Eghtesad v. State Farm General Insurance. Co. (2020) 51 Cal.App.5th 406, 411, quoting King v. Mortimer (1948) 83 Cal.App.2d 153, 158; see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 [“Only rarely should a demurrer to an initial complaint be sustained without leave to amend.”].)

As the Court of Appeal has explained: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, Plaintiff requests leave to amend and has not had a prior opportunity to amend in response to the court’s ruling on a motion to strike. Therefore, the court will exercise its discretion and grant leave to amend.

The parties are reminded that, when leave to amend is granted upon the sustaining of a demurrer or motion to strike, amendments are limited to the issues addressed in the court’s ruling and generally may not include amendments to causes of action not addressed in the ruling or the addition of new causes of action. (See Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an

opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”].)

Defendant Flowers shall give notice of these rulings.

2 Phan vs. Fountain Valley There is no full written tentative ruling at this Regional Hospital and time. The court provides the following summary Medical Center tentative ruling:

Motion to Furnish Security 30-2025-01500005 Defendants Francoise Raiola, M.D.’s and Romana Bailey, M.D.’s Motion for Order Requiring Vexatious Litigant Plaintiff, Tin Quoc Phan, to Furnish Security in the Amount of $12,863.79 within 60 Days of Court Order is GRANTED.

Defendants Francoise Raiola, M.D.’s and Romana Bailey, M.D.’s Request for Judicial Notice at Hearing on Motion for Order Requiring Vexatious Litigant Plaintiff, Tin Quoc Phan, to Furnish Security in the Amount of $12,863.79 within 60 Days of Court Order is GRANTED as to Exhibits A- H. (See Evid. Code, § 452, subd. (d).)

Plaintiff Tin Quoc Phan is ORDERED to post an undertaking or bond, or furnish security, in the amount of $12,863.79 within 60 days of receiving notice of this ruling.

Plaintiff Tin Quoc Phan is ORDERED to file and serve a notice of undertaking, bond, or furnishing of security and attach evidence of the undertaking, bond, or furnishing of security within 60 days of receiving notice of this ruling.

If Plaintiff Tin Quoc Phan fails to abide by the court’s orders, Defendants Francoise Raiola, M.D. and Romana Bailey, M.D. may move ex parte for dismissal pursuant to Civil Procedure Code section 391.4.

Furnishing Security

Code of Civil Procedure section 391.1 states that:

In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the