Daisy Razo v. McLane/Suneast, Inc.

UNITED STATES DISTRICT COURT JS-6

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 25-4277-JFW(ASx) Date: July 17, 2025

Title: Daisy Razo -v- McLane Suneast Inc., et al.

PRESENT:

HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

Shannon Reilly None Present

Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

None None

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING PLAINTIFF’S MOTION FOR

REMAND TO LOS ANGELES SUPERIOR COURT [filed

6/23/25; Docket No. 39];

ORDER DENYING WITHOUT PREJUDICE DEFENDANT

McLANE/SUNEAST, INC.’S MOTION TO DISMISS

AND/OR STRIKE PORTIONS OF PLAINTIFF’S

COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)

AND/OR 12(f) [filed 6/18/25; Docket No. 33]; and

ORDERING DENYING WITHOUT PREJUDICE

DEFENDANT McLANE COMPANY, INC.’S MOTION TO

DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO

FED. R. CIV. P. 12(b)(2) FOR LACK OF PERSONAL

JURISDICTION [filed 6/23/25; Docket No. 38]

On June 23, 2025, Plaintiff Daisy Razo (“Plaintiff”) filed a Motion for Remand to Los Angeles

Superior Court (“Motion to Remand”). On June 30, 2025, Defendants McLane/Suneast, Inc. and

McLane Company, Inc. (collectively, the “McLane Defendants”) filed their Opposition. On July 7,

2025, Plaintiff filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local

Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The

hearing calendared for July 21, 2025, is hereby vacated and the matter taken off calendar. After

considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as

follows:

I. Factual and Procedural Background

A. Factual Background

The McLane Defendants are one of the largest domestic distributors, serving convenience

stores, mass merchants, and chain restaurants. The McLane Defendants have more than eighty

distribution centers across the United States, and have more than 25,000 employees. In 2011,

Plaintiff began working for the McLane Defendants in the inventory department of the San

Bernardino distribution center, and then worked in the receiving department of the same

distribution center from 2014 until she was terminated on August 31, 2021. During Plaintiff’s

employment, Defendant Alicia Hutchinson (“Hutchinson”) was a human resources manager for the

McLane Defendants, and Defendant Gail Gonzales (“Gonzales”) was Plaintiff’s supervisor.

According to Plaintiff, she started experiencing pain in her back and hips in the spring of 2020,

which she believed was related to the repetitive and physical nature of her work. On May 12,

2021, Plaintiff was placed on leave for industrial orthopedic injuries to her hip and back. Although

her leave was initially scheduled to end on July 12, 2021, it was extended until October 12, 2021.

Plaintiff alleges that she, along with her medical providers, kept the McLane Defendants,

Hutchinson, and Gonzales (collectively, “Defendants”) apprised of her medical condition

throughout her leave period. Plaintiff also alleges that Defendants constantly harassed and

pressured her in May, June, July, and August of 2021 to return to work regardless of her medical

condition or status of her disability, and that the harassment and pressure included threatening her

employment. In September 2021, Plaintiff received a letter from Defendants stating that her

employment had been terminated effective August 31, 2021. According to Plaintiff, she was told

that her termination was specifically due to her disability and requests for accommodations. After

her termination, Plaintiff sought to return to her employment for the McLane Defendants, and

expressed her willingness to work at any of the McLane Defendants’ locations in Riverside,

Orange, San Bernardino, or Los Angeles Counties, and to work in any position for which she was

qualified. Plaintiff alleges that her requests to be rehired were summarily denied with no

explanation.

B. Procedural Background

On November 10, 2021, Plaintiff filed a workers’ compensation action, which was concluded

by the entry of the Workers’ Compensation Appeals Board’s closing order on May 3, 2022. On

August 31, 2024, Plaintiff filed a Complaint of Discrimination with the California Civil Rights

Department against Defendants. Plaintiff was granted an immediate right-to-sue letter on August

31, 2024.

On April 8, 2025, Plaintiff filed a Complaint in Los Angeles Superior Court against the

Defendants, alleging causes of action under state law for: (1) employment discrimination in

violation of California’s Fair Employment and Housing Act (“FEHA”), California Government Code §

12940(a); (2) failure to provide reasonable accommodation in violation of FEHA, California

Government Code § 12940(m); (3) failure to engage in a timely and good faith interactive process

in violation of FEHA, California Government Code § 12940(n); (4) harassment in violation of FEHA,

California Government Code § 12940(j); (5) retaliation in violation of FEHA, California Government

Code § 12940(h) and (m) and § 12945.2; (6) failure to prevent/remedy discrimination, harassment,

and/or retaliation in violation of FEHA, California Government Code § 12940(k); and (7) failure to

hire on the basis of protected class or status in violation of FEHA, California Government Code §

12900. All seven causes of action are alleged against the McLane Defendants. The fourth cause

of action for harassment in violation of FEHA is also alleged against Hutchinson and Gonzales

(collectively, the “Individual Defendants”).

On May 16, 2025, the McLane Defendants removed this action to this Court, alleging that

this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a), diversity.

II. Legal Standard

A motion to remand is the proper procedure for challenging removal. See N. Cal. Dist.

Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995). The

removal statute is strictly construed, and any doubt about the right of removal is resolved in favor

of remand. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); see also Prize Frize, Inc. v.

Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). Consequently, if a plaintiff challenges the

defendant's removal of a case, the defendant bears the burden of establishing the propriety of the

removal. See Gaus, 980 F.2d at 566; see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.

1996) (citations and quotations omitted) ("Because of the Congressional purpose to restrict the

jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction

must be rejected if there is any doubt as to the right of removal in the first instance.").

III. Discussion

Diversity jurisdiction founded under 28 U.S.C. § 1332(a) requires that (1) all plaintiffs be of

different citizenship than all defendants, and (2) the amount in controversy exceed $75,000. See

28 U.S.C. § 1332. In this case, it is undisputed that both Plaintiff and the Individual Defendants are

citizens of California. However, the McLane Defendants argue that the Individual Defendants have

been fraudulently joined, and, as a result, their presence in this action should be ignored.

“Although an action may be removed to federal court only where there is complete diversity of

citizenship, . . . one exception to the requirement for complete diversity is where a non-diverse

defendant has been ‘fraudulently joined.’” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th

Cir. 2009) (quotations and citations omitted). If the plaintiff “fails to state a cause of action against

a resident defendant, and the failure is obvious according to the settled rules of the state, the

joinder of the resident defendant is fraudulent.” McCabe v. Gen. Foods Corp., 811 F.2d 1336,

1339 (9th Cir. 1987) (emphasis added). If the Court finds that the joinder of a non-diverse

defendant is fraudulent, that defendant’s presence in the lawsuit is ignored for the purposes of

determining diversity. See, e.g., Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.

2001).

“There is a presumption against finding fraudulent joinder, and defendants who assert that

plaintiff has fraudulently joined a party carry a heavy burden of persuasion.” Plute v. Roadway

Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 (N.D. Cal. 2001). Indeed, “[f]raudulent joinder

must be proven by clear and convincing evidence.” Hamilton Materials, Inc. v. Dow Chemical

Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). A claim of fraudulent joinder should be denied if there

is any possibility that the plaintiffs may prevail on the cause of action against the in state

defendant. See Plute, 141 F. Supp. 2d at 1008. “The standard is not whether plaintiffs will actually

or even probably prevail on the merits, but whether there is a possibility that they may do so.”

Lieberman v. Meshkin, Mazandarani, 1996 WL 732506, at *3 (N.D. Cal. Dec. 11, 1996) (emphasis

added). “In determining whether a defendant was joined fraudulently, the court must resolve ‘all

disputed questions of fact and all ambiguities in the controlling state law in favor of the non-

removing party.’” Plute, 141 F. Supp. 2d at 1008 (quoting Dodson v. Spiliada Maritime Corp., 951

F.2d 40, 42-43 (5th Cir. 1992)). Moreover, any doubts concerning the sufficiency of a cause of

action due to inartful, ambiguous, or technically defective pleading must be resolved in favor of

remand. See id.

The Court concludes that the McLane Defendants have not carried their burden of

demonstrating fraudulent joinder. The McLane Defendants contend that the Individual Defendants

have been fraudulently joined because Plaintiff has failed to state a claim for harassment against

them and that the claim for harassment is also time-barred. However, the McLane Defendants’

arguments are not sufficient to support removal on the basis of fraudulent joinder.

Under FEHA, it is unlawful for an employer or an individual employee to harass another

employee based on her medical condition or disability. Cal. Gov't Code § 12940(j). “[H]arassment

consists of conduct outside the scope of necessary job performance, conduct presumably engaged

in for personal gratification, because of meanness or bigotry, or for other personal motives.” Roby

v. McKesson Corp., 47 Cal. 4th 686, 707 (2009) (citations and internal quotation marks omitted).

Harassment is “generally concerned with the message conveyed to an employee, and therefore

with the social environment of the workplace, whereas discrimination is concerned with explicit

changes in the terms or conditions of employment.” Id. “[C]ommonly necessary personnel

management actions such as hiring and firing, job or project assignments, office or work station

assignments, promotion or demotion, performance evaluations, the provision of support, the

assignment or nonassignment of supervisory functions, deciding who will and who will not attend

meetings, deciding who will be laid off, and the like, do not come within the meaning of

harassment.” Reno v. Baird, 18 Cal. 4th 640, 646-47 1998). Personnel management conduct,

however, may evidence harassment if it has the “secondary effect of communicating a hostile

message.” Roby, 47 Cal. 4th at 708-09. Unlike a discrimination claim, for which only an employer

may be liable, an individual employee may be liable for workplace harassment (in addition to the

employer).” Ramirez v. Speltz, 2015 WL 5882065, at *3 (N.D. Cal. Oct, 8, 2015).

For harassment to be actionable, “it must be sufficiently severe or pervasive ‘to alter the

conditions of the victim's employment and create an abusive working environment.’” Aguilar v. Avis

Rent A Car Sys., Inc., 21 Cal. 4th 121, 130 (1999) (quoting Meritor Sav. Bank v. Vinson, 477 U.S.

57, 67 (1986)). However, “[i]n 2019, the California Legislature clarified that ‘[a] single incident of

harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work

environment if the harassing conduct has unreasonably interfered with the plaintiff's work

performance or created an intimidating, hostile, or offensive environment.’” Vazquez v. Costco

Wholesale Corp., 2021 WL 1784342, at *3 (C.D. Cal. May 5, 2021 (quoting Cal. Gov't Code §

12923(b)).

The Court cannot conclude, as a matter of law, that Plaintiff cannot state a claim for

harassment against the Individual Defendants. See, e.g., Notice of Removal, ¶ 19 (acknowledging

that “individual defendants may be held liable for claims of harassment”) (emphasis in the original).

In her Complaint, Plaintiff alleges conduct that suggests that the Individual Defendants may have

harassed Plaintiff based on her medical condition and disability, including “constantly question[ing]

the veracity of her leave, making harassing comments about Plaintiff’s leave and need for

accommodations.” Complaint, ¶ 54. Plaintiff also alleges that “[t]he harassment consisted of

constant berating and questioning of Plaintiff’s disabilities despite knowing she was on a legitimate

leave for a disability.” Id. It is unnecessary for the Court to determine whether these allegations

state a claim for harassment on a motion for remand. As the court stated in Stanbrough v.

Georgia-Pacific Gypsum LLC, 2009 WL 137036 (C.D. Cal. Jan. 20, 2009):

But even if the Court presumes for purposes of discussion that the complaint does

not allege sufficient facts to meet this requirement [of pervasive harassment] as to

[the supervisor], Defendants have failed to demonstrate fraudulent joinder. . . .

Defendants must demonstrate that Plaintiffs could not possibly state a claim against

[the supervisor] in state court. Even if the allegations in Plaintiffs’ complaint are

insufficient to withstand a demurrer in state court, an issue as to which the Court

offers no opinion, Defendants have not sufficiently established that Plaintiffs could not

amend their complaint and add additional allegations to correct any deficiencies. In

other words, the complaint’s shortcomings, if any, are strictly factual; Plaintiffs clearly

may pursue a cause of action for harassment against [the supervisor] under section

12940(j)(3) of the California Government Code if they can allege sufficient facts.

Id. at *2. Indeed, even if Plaintiff’s Complaint fails to allege sufficient facts to plead a viable

harassment claim against the Individual Defendants, the McLane Defendants have failed to show

that Plaintiff will be unable to amend her Complaint to add allegations or facts supporting her

claims. Similarly, the McLane Defendants’ argument regarding whether Plaintiff’s harassment

claim is time-barred involves “questions of fact that are not properly resolved at the motion to

remand stage, which considers only the jurisdictional question.” Guilford v. APM Terminals Pacific

LLC, 2024 WL 4416816 (C.D. Cal. Sept. 30, 2024) (where “Defendants contend that the alleged

conduct is time-barred, does not meet the legal definition of harassment, and is does not rise to a

level that is actionable as a matter of law,” the Court concluded that “Defendants’ arguments

pertain to sufficiency of the harassment claim, rather than to its ‘possible viability,’ and thus the

Court cannot conclude that Ortiz is a sham defendant whose presence in the case destroys

diversity”). “Parties may not expand federal jurisdiction beyond its statutory boundaries by using

fraudulent joinder-based removal as a replacement for a state court demurrer.” Lizari v. CVS

Pharmacy Inc., 2011 WL 223806, at *3 (C.D. Cal. Jan. 20, 2011).

Accordingly, the Court concludes that the Individual Defendants were not fraudulently

joined, and, as a result, this Court lacks diversity jurisdiction.

IV. Conclusion

For the foregoing reasons, Plaintiff’s Motion to Remand is GRANTED, and this action is

REMANDED to Los Angeles County Superior Court. Defendant McLane/Suneast, Inc.’s Motion to

Dismiss and/or Strike Portions of Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and/or

12(f) and Defendant McLane Company, Inc.’s Motion to Dismiss Plaintiff’s Complaint Pursuant to

Fed. R. Civ. P. 12(b)(2) for Lack of Personal Jurisdiction are DENIED without prejudice.

IT IS SO ORDERED.