Brum et al v. MarketSource, Inc. et al

Filing 23

ORDER signed by District Judge John A. Mendez on 10/26/17 GRANTING defendants' 18 Motion to Strike; Plaintiffs' allegations concerning the drug testing and paperwork are ORDERED STRICKEN from the Second Amended Complaint. Because Plaintiffs have already had an opportunity to amend the Complaint and further amendment appears futile, leave to amend is not permitted. Defendants shall file their Answer to the Second Amended Complaint within 20 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JENNIFER BRUM and MICHAEL
CAMERO, individually, and on
behalf of other members of
the general public similarly
situated,

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2:17-cv-241-JAM-EFB

ORDER GRANTING DEFENDANTS’
MOTION TO STIKE

Plaintiffs,

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No.

v.
MARKETSOURCE, INC. WHICH WILL
DO BUSINESS IN CALIFORNIA AS
MARYLAND MARKETSOURCE, INC.,
a Maryland corporation;
ALLEGIS GROUP, INC., a
Maryland corporation; and
DOES 1 through 10, inclusive,

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Defendants.

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Jennifer Brum (“Brum”) and Michael Camero (“Camero”)

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(collectively “Plaintiffs”) have sued MarketSource, Inc., and

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Allegis Group, Inc., (collectively “Defendants”) for various

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California Labor Code and Unfair Competition Law violations. 1

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for October 3, 2017.
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After Defendants partially prevailed on a motion to dismiss,

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Plaintiffs filed their Second Amended Complaint (“SAC”).

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Defendants now seek to strike allegations from the SAC.

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reasons set forth below, Defendants motion is GRANTED in its

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entirety.

For the

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

Defendants provide retail sales personnel to dozens of
Target Mobile kiosks throughout California.

SAC ¶ 26.

Brum

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worked as a “Wireless Team Lead” at several Target stores in and

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around Stockton, California.

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“Target Mobile Manager” at two Target stores in San Diego,

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California.

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SAC ¶ 3.

Camero worked as a

SAC ¶ 4.

Plaintiffs allege Defendants violated overtime, meal, and

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rest period laws and did not properly report wage statements.

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SAC at ¶¶ 13-19, 21-27.

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required all new hires to take drug tests as a condition of

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employment without paying them for the time to travel to and from

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the drug testing facility and take the test, and without

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reimbursing them for travel expenses.

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Plaintiffs also contend Defendants

SAC ¶ 29.

Plaintiffs seek to represent one class and one subclass, but

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have not yet filed a motion for class certification.

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SAC ¶¶ 20,

The Court previously granted in part and denied in part

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Defendants’ motion to dismiss.

Order, ECF No. 15.

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struck Plaintiffs’ drug testing allegations—with leave to amend—

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because Plaintiffs’ opposition to the motion relied on facts

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Plaintiffs failed to allege in the FAC.
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The Court

Order at 7, 13.

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Plaintiffs timely filed their SAC.

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move to strike the amended allegations concerning compensation

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and reimbursement for the drug testing.

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move to strike Plaintiffs’ new allegations regarding compensation

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for time spent filling out paperwork.

ECF No. 16.

Now, Defendants

Additionally, Defendants

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II.

OPINION

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A.

Judicial Notice

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Defendants seek judicial notice of an email dated January 8,

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2017, Exh. A, ECF No. 18-3, pursuant to either Federal Rule of

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Civil Procedure 201(b) or the doctrine of incorporation by

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reference.

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Under Rule 201, the Court may judicially notice a fact that

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is not subject to reasonable dispute because it can be accurately

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and readily determined from sources whose accuracy cannot

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reasonably be questioned.

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of the January 8th email do not meet these parameters and are not

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an appropriate subject for judicial notice under Rule 201.

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Fed. R. Evid. 201(b)(2).

The contents

Under the doctrine of incorporation by reference, the court

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“may consider evidence on which the complaint ‘necessarily

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relies’ if: (1) the complaint refers to the document; (2) the

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document is central to the plaintiff’s claim; and (3) no party

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questions the authenticity of the copy attached to the [motion].”

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Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).

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The January 8th email does appear central to Plaintiffs’

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claim and is referenced, though not explicitly, in the SAC.

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support of their liability theory, Plaintiffs allege—and argue in

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their opposition to the motion to strike, see Opp’n at 5–9—that
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In

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Defendants exercised control over the circumstances surrounding

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the drug testing.

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testing instructions to the new hires, which Plaintiffs refer to

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in paragraphs 29 and 74 of the SAC.

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the email is not relevant to their claims is disingenuous, as

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Plaintiffs’ opposition to the motion to strike largely relies on

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the control Defendants allegedly exerted over the drug testing,

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as shown by the email.

The January 8th email communicates the drug

Plaintiffs’ argument that

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Defendants argue that Plaintiffs cannot contest the email’s

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authenticity because Plaintiffs produced the email in discovery.

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See RFJN at 2.

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2.

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pointing out that the email has not been authenticated by

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deposition or affidavit.

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correct. While the email appears to be authentic and Defendants

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could easily lay a foundation for its authenticity, no such

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foundation exists in Defendants’ motion papers.

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Court may not take judicial notice of this email over Plaintiffs’

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opposition in deciding the present motion.

Plaintiffs admit they did so.

Opp’n to RFJN at

Plaintiffs do, however, contest the email’s authenticity,

Opp’n to RFJN at 2–3. Plaintiffs are

Therefore, the

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B.

Analysis

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Under Federal Rule of Civil Procedure 12(f), the Court may

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strike from a pleading any redundant, immaterial, impertinent, or

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scandalous matter.

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“Motions to strike are generally regarded with disfavor[.]”

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In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d

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609, 614 (N.D. Cal. 2007).

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granted unless it is clear that the matter to be stricken could

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have no possible bearing on the subject matter of the

“A motion to strike should not be

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litigation.”

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F. Supp. 2d 1157, 1159 (E.D. Cal. 2010) (citation omitted).

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deciding the motion, the Court must view the pleadings in the

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light most favorable to the nonmoving party.

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Natural Foods, Inc., No. 2:15-cv-953-JAM-EFB, 2015 WL 5601362, at

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*1 (E.D. Cal. Sep. 22, 2015).

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1.

Contreras, ex rel. Contreras v. Cnty. of Glenn, 725
In

Baker v. United

Reimbursement For Drug Testing

Defendants’ motion turns on whether Plaintiffs sufficiently
allege they were employees when they underwent Defendants’

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required drug testing.

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time, then those allegations are immaterial to their claims.

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Defendants argue Plaintiffs were merely “prospective employees”

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at testing time and Defendants therefore had no obligation to pay

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them wages or reimburse mileage.

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the SAC’s allegations demonstrate “the drug-tested individuals

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were engaged, thereby creating a common-law employment

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relationship, and were under Defendants’ control when they were

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tested.”

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in paragraph 29 of the SAC as establishing the employment

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relationship between the parties:

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Opp’n at 5.

If Plaintiffs were not employees at that

Mot. at 6–7.

Plaintiffs argue

They specifically point to the allegation

Upon being hired, Defendants send newly hired employees
a system-generated e-mail notification with “Welcome to
Market Source” in the subject line that provides,
“Congratulations on your new position with the
MarketSource team!” The e-mail further provides “Now
that you have accepted your position, I’ve created a
timeline of what you can expect in the next several
days leading up to your official start date with us.”

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SAC at ¶ 29.

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argument that they had accepted employment with Defendants.

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These new allegations tend to support Plaintiffs’

But, Plaintiffs’ allegations contain their Achilles heel:
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“Defendants require that all new hires undergo mandatory drug

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testing as a condition of employment.”

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added); see also ¶ 74.

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Next Steps” the new hires complete prior to their “official start

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date.”

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conditioned upon completing a drug test, thereby undermining the

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“engagement” theory central to their opposition.

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to explain how an employment agreement formed between the parties

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prior to fulfillment of this condition.

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SAC at ¶ 74.

SAC at ¶ 29 (emphasis

The drug testing is one of the “Immediate

Plaintiffs thus admit their employment was

Plaintiffs fail

Plaintiffs’ allegations

do not establish such an agreement.
This conclusion does not terminate the inquiry.

“In

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determining the nature of the employment relationship, a primary

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inquiry of California courts is whether the alleged employer

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exercised or had the right to exercise control over the alleged

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employee.”

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Supp. 2d 1058, 1063 (C.D. Cal. 2014).

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no authority suggesting that employers must compensate

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prospective employees for time spent in pre-employment

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activities.

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Defendants exercised a sufficient degree of control over the

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prospective employees’ drug testing to establish an employment

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relationship at that time.

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Gunawan v. Howroyd-Wright Employment Agency, 997 F.
Defendants assert there is

But, this argument begs the question of whether

The Gunawan decision is instructive on this issue.

In that

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case, Ms. Gunawan applied for employment with a temporary

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staffing agency (“KForce”) and, after interviewing with KForce,

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went out for an interview that KForce arranged with an outside

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employer (“TRG”).

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scheduled the interview, modified Ms. Gunawan’s resume, and

Gunawan, 997 F. Supp. 2d at 1061.

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KForce

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communicated with TRG.

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Gunawan for a temporary assignment, she completed employment

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paperwork with KForce and became a KForce employee.

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Gunawan later sued KForce, seeking compensation for the time she

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spent interviewing with TRG, “prior to the commencement of her

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formal employment relationship with KForce.”

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noting the dearth of authority on this question, the Gunawan

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Court grappled with how to apply the California Supreme Court’s

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Martinez test to determine whether KForce was Ms. Gunawan’s

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Id.

After TRG decided to hire Ms.

Id.

Ms.

Id. at 1062.

After

employer during the interview. It wrote:
Martinez expounded on the definition of “employer”
under California’s wage and hour laws, holding that “to
employ” has three alternative definitions: “(a) to
exercise control over the wages, hours or working
conditions, or (b) to suffer or permit to work, or
(c) to engage, thereby creating a common law employment
relationship.” The court’s test, however, is not
easily translated outside of the factual context in
which it was developed . . . [it is most applicable in
answering] whether the defendants in the case could be
considered joint employers under the law. There was no
question whether the employees in Martinez were
employees, nor whether they had performed compensable
work. . . . Here, in the context of determining
whether an individual is an employee at all, the test
is less directly applicable. . . . At its core, the
Martinez test suggests that an employer is an
individual that has the ability to control the terms
and conditions of an individual’s work, or that has
such control over an individual so as to have the
ability to permit or prevent that individual from
working.

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Id. at 1064 (quoting Martinez v. Combs, 49 Cal.4th 35 (2010)).

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The Gunawan court concluded that Ms. Gunawan was not under

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KForce’s control at the time of the interview because she could

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have opted not to attend the TRG interview without precluding

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other assignments through KForce, and because KForce had little

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control over the substance of the interview itself.
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Id. at 1063.

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The facts that KForce scheduled the interview and controlled

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communications between the parties did not persuade the court:

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“That she chose [] to utilize KForce’s service does not transform

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Ms. Gunawan from an applicant for employment to an employee.”

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Id. at 1064.

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Plaintiffs argue that Gunawan is in the minority, but

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Plaintiffs’ alternative cases are not persuasive.

First, the

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court in Sullivan v. Kelly Services, another staffing agency

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case, did not consider whether or not the plaintiff was an

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employee, but, instead, considered whether the time she spent

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interviewing with outside employers was compensable work time.

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No. C 08-3893 CW, 2009 WL 3353300 (N.D. Cal. Oct. 16, 2009).

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Sullivan court stated Ms. Sullivan was the defendant’s employee

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in the factual background section of the order.

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(“Plaintiff’s employment relationship with Defendant began on

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March 16, 2006, which was her first day of her first temporary

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assignment with Defendant’s customer[.]”).

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decision is not instructive.

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hand, did analyze the plaintiff’s employee status when he went

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out on interviews.

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Inc., No. 14-CV-01788-JST, 2014 WL 4365074 (N.D. Cal. Sep. 3,

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2014).

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determined the defendant exercised sufficient control over the

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interview process to establish an employer-employee relationship.

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Id. at *4–6.

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this Court.

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“new hire” orientation, signed a form acknowledging that he and

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the defendant were entering into an employment arrangement, and

The

Id. at *1

Thus, the Sullivan

The Betancourt court, on the other

Betancourt v. Advantage Human Resourcing

Finding Sullivan more persuasive than Gurawan, it

The Betancourt opinion, too, is of limited value to
First, the plaintiff in that case had completed a

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completed traditional employment paperwork with defendant prior

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to interviewing with outside employers.

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“prospective” employee versus employee issue was not framed so

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poignantly for that court.

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bewilderingly cites Sullivan as “holding an employment

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relationship was created” between the plaintiff and defendant in

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that case; but, the Sullivan opinion contains no such holding

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because the employment relationship was not in dispute.

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*3.

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Id. at *1.

Hence, the

Second, the Betancourt court

Id. at

In light of these deficiencies, Sullivan and Betancourt have

little sway over this Court’s analysis.
Each of the above-cited cases is distinguishable from the

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present circumstances.

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interviews and work assignments and controls all communications

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with outside employers exhibits considerably more control over

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its (prospective) employees than an employer who conditions an

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offer of employment on completion of a drug test.

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question here is whether the facts that a prospective employer

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picked the time, date, and location for, and the scope of, a drug

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test required in order for one to commence employment exhibit

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enough control over a prospective employee to establish an

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employment relationship.

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support for this seemingly novel proposition.

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finds these allegations insufficient to establish an employment

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relationship at the time of Plaintiffs’ drug testing.

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2.

A staffing agency that manages one’s

The narrow

Plaintiff has not offered any legal
The Court thus

Reimbursement Under the UCL

Plaintiffs seek relief under California’s Unfair Competition

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Law (“UCL”) for Defendants’ failure “to pay the costs of

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mandatory physical examinations and drug testing in violation of
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California Labor Code section 222.5.”

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the statute, an employer may not “require any prospective

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employee or applicant for employment to pay[] any fee for, or

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cost of, any pre-employment medical or physical examination taken

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as a condition of employment[.]”

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SAC at ¶ 121(e).

Under

Cal. Labor Code § 222.5.

Defendants argue that, based on the plain language of the

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statute, “cost” does not include compensation for the time

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involved in taking the exam, traveling to and from the exam, or

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for travel mileage.

Mot. at 11.

Plaintiffs respond that there

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is no case law supporting Defendants’ interpretation and suggests

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the more reasonable interpretation of “cost” would accord with

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Labor Code section 2802, which requires reimbursement for “all

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necessary expenditures or losses incurred by the employee in

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direct consequence of the discharge of his or her duties, or of

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his or her obedience to the directions of the employer[.]”

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at 10.

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reimbursement for mileage under section 2802.

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Vasquez v. Franklin Mgmt. Real Estate Fund, Inc., 222 Cal. App.

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4th 819 (2013)).

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Opp’n

According to Plaintiffs, an employee may recover

Defendants have the stronger argument.

Id. (citing

The two Labor Code

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sections have substantially distinct wording and the Court will

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not read the sections to carry the same meaning without authority

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militating such an interpretation.

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to “cost” and section 2082 includes “all necessary expenditures

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or losses incurred” supports a narrower reading of the statute.

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Accordingly, Plaintiffs’ drug testing allegations cannot support

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their UCL claim.

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That section 222.5 is limited

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Paperwork Allegations

Defendants argue that Plaintiffs’ allegations in support of

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their new theory of liability should be stricken because the

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Court’s previous order only granted leave to amend the drug

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testing reimbursement allegations.

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respond that Defendants read the Court’s order too narrowly,

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contending that “leave to amend was granted as they relate to the

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causes of action regarding off-the-clock work such as drug

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testing” and they could permissibly amend their allegations to

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add this additional theory in support of their second cause of

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action for unpaid minimum wages and eighth cause of action for

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unlawful business practices.

Mot. at 13.

Plaintiffs

Opp’n at 12.

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The Court granted Defendants’ motion to strike Plaintiffs’

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allegations regarding reimbursement for drug testing with leave

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to amend.

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exceed the scope of the Court’s leave and are ordered stricken.

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See Freeney v. Bank of Am. Corp., No. CV 15-02376 MMM (PJWx),

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2015 WL 4366439 (C.D. Cal. July 16, 2015) (“Plaintiffs may not

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plead additional claims, add additional parties, or add

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allegations that are not intended to cure the specific defects

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the court has noted.

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scope of leave to amend granted by this order, the court will

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strike the offending portions under Rule 12(f).”).

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new allegations are stricken, the Court need not consider their

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merit and will not do so at this time.

See Order at 13:27–28.

Plaintiffs’ new allegations

Should any amended complaint exceed the

Because these

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C.

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In their Reply, Defendants suggest that Plaintiffs used a

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Sanctions

condensed font to circumvent this Court’s Order re Filing
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Requirements, ECF No. 2-2.

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Plaintiffs’ filing.

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12 point font with condensed character spacing (-0.2), though it

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is not clear how many pages this saved Plaintiffs.

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declines to issue sanctions at this time.

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all memoranda submitted in this action shall conform to a 12

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point font size and standard (zero) character spacing.

Rep. at 1.

The Court has reviewed

It appears that Plaintiffs used a standard

The Court

Henceforth, however,

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III.

ORDER

For the reasons set forth above, the Court GRANTS

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Defendants’ Motion to Strike in its entirety.

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allegations concerning the drug testing and paperwork are ORDERED

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stricken from the Second Amended Complaint.

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have already had an opportunity to amend the Complaint and

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further amendment appears futile, leave to amend is not

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permitted.

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Amended Complaint within twenty days of this Order.

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Plaintiffs’

Because Plaintiffs

Defendants shall file their Answer to the Second

IT IS SO ORDERED.
Dated: October 26, 2017

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