Preview
1 Rafael Gonzalez, SBN 210202
rgonzalez@mullenlaw.com
2 Christina M. Behrman, SBN 313226
cbehrman@mullenlaw.com
3 Sean Stratford-Jones, SBN 324440
sstratford-jones@mullenlaw.com
4 MULLEN & HENZELL L.L.P.
112 East Victoria Street
5 Post Office Drawer 789
Santa Barbara, CA 93102-0789
6 Telephone: (805) 966-1501
Facsimile: (805) 966-9204
7
Attorneys for Defendants
8 WESTERLAY ORCHIDS, LP; TJO FLORAL, LLC; and ANTOINE OVERGAAG
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SANTA BARBARA
12 ANACAPA DIVISION
13
14 LETICIA BERNABE BENITEZ, an ) Case No. 23CV04353
individual and class representative on)
15 behalf of herself and all other similarly
)
situated non-exempt former and current) DEFENDANTS’ ANSWER TO
16 employees, ) PLAINTIFF’S FIRST AMENDED CLASS
) ACTION COMPLAINT
17 Plaintiffs, )
)
18 v. ) Dept.: 3
) Judge: Hon. Thomas P. Anderle
19 WESTERLAY ORCHIDS, LLC, a )
California Limited Liability Company; ) Complaint Filed: October 3, 2023
20 WESTERLAY ORCHIDS, LP, a ) FAC Filed: March 20, 2024
California Limited Partnership; TJO )
21 FLORAL, LLC, a California Limited )
Liability Company; ANTOINE )
22 OVERGAAG, an individual; and DOES 1 )
through 100, inclusive, )
23 )
Defendants. )
24 )
)
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 Defendants Westerlay Orchids, LP (erroneously sued as Westerlay Orchids, LLC); TJO
2 Floral, LLC; and Antoine Overgaag (collectively, “Defendants”) hereby answer Plaintiff’s
3 unverified First Amended Class Action Complaint (the “Complaint”) as follows:
4 GENERAL DENIAL
5 Pursuant to the provisions of Section 431.30 of the Code of Civil Procedure,
6 Defendants generally deny all the allegations of Plaintiff’s Complaint, and further deny that
7 Plaintiff and/or the putative class members and/or allegedly aggrieved employees have been
8 damaged in any amount, or at all. Defendants also specifically deny that Defendants are liable
9 to Plaintiff and/or the putative class members and/or allegedly aggrieved employees for the
10 sum or sums alleged or for any other amount whatsoever.
11 AFFIRMATIVE DEFENSES
12 In further answer to Plaintiff’s Complaint, Defendants assert the following affirmative
13 defenses. In so doing, Defendants do not concede that it has the burden of production or proof
14 as to any affirmative defense asserted below. Further, Defendants do not presently know all
15 facts sufficient to state all affirmative defenses at this time. Accordingly, Defendants may seek
16 leave of this Court to amend this Answer should it later discover facts demonstrating the
17 existence of additional affirmative defenses.
18 FIRST AFFIRMATIVE DEFENSE
19 (Failure to State a Claim)
20 1. The Complaint and each cause of action therein fails to allege facts sufficient to
21 constitute a cause of action upon which relief may be granted.
22 SECOND AFFIRMATIVE DEFENSE
23 (Statute of Limitations)
24 2. The Complaint and each cause of action alleged therein is barred by the
25 applicable statute of limitations, including but not limited to Code of Civil Procedure §§ 338(a)
26 and 340(a), Bus. & Prof. Code § 17208, and Labor Code §§ 203(b) and 2699.3.
27 ///
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 THIRD AFFIRMATIVE DEFENSE
2 (De Minimis)
3 3. Any off-the-clock work performed by Plaintiff and/or the putative class and/or
4 allegedly aggrieved employees, although such is not admitted here, was de minimis and not
5 compensable.
6 FOURTH AFFIRMATIVE DEFENSE
7 (No Knowledge of Work)
8 4. If Plaintiff and/or members of the putative class and/or allegedly aggrieved
9 employees “worked” time for which compensation was not paid, Defendants had no
10 knowledge, or reason to know, of such “work” and such “work” was undertaken without the
11 consent or permission of Defendants.
12 FIFTH AFFIRMATIVE DEFENSE
13 (No Private Right of Action)
14 5. The Complaint and each cause of action therein is barred to the extent it seeks
15 recovery for alleged violations of the Labor Code for which no private right of action exists.
16 SIXTH AFFIRMATIVE DEFENSE
17 (No Injury)
18 6. Plaintiff and/or the putative class and/or allegedly aggrieved employees did not
19 suffer any injury as a result of any alleged failure by Defendants to provide accurate itemized
20 wage statements, although such is not admitted here.
21 SEVENTH AFFIRMATIVE DEFENSE
22 (No Knowing and Intentional Failure to Provide Wage Statements)
23 7. Any alleged failure to provide accurate wage statements to Plaintiff and/or the
24 putative class and/or allegedly aggrieved employees, although such is not admitted here, was
25 not knowing and intentional, and/or was the result of an isolated and unintentional error due to
26 a clerical or inadvertent mistake.
27 ///
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 EIGHTH AFFIRMATIVE DEFENSE
2 (Bona Fide Dispute)
3 8. The Complaint fails to state a claim for penalties under the California Labor
4 Code in that there was a good faith dispute as to Defendants’ obligations under any applicable
5 Labor Code provisions, including, without limitation, Labor Code section 203, and a bona fide
6 dispute as to whether Defendants failed to pay all wages due.
7 NINTH AFFIRMATIVE DEFENSE
8 (No Derivative Penalties)
9 9. The Complaint is barred to the extent any of the claims are derivative of other
10 alleged violations including but not limited to missed meal and rest periods and failure to pay
11 minimum wages for all time worked (although such are not admitted here).
12 TENTH AFFIRMATIVE DEFENSE
13 (Substantial Compliance)
14 10. To the extent Defendants did not comply with applicable law (although such is
15 not admitted here), Defendants nonetheless substantially complied with the law with respect to
16 Plaintiff and the putative class members and allegedly aggrieved employees.
17 ELEVENTH AFFIRMATIVE DEFENSE
18 (No Willful Violation of Law)
19 11. The Complaint fails to state a claim for penalties, including, without limitation,
20 penalties under Labor Code section 203, because Defendants did not willfully or intentionally
21 violate California law, including, but not limited to the California Labor Code.
22 TWELFTH AFFIRMATIVE DEFENSE
23 (No Employment Relationship)
24 12. The Complaint and each cause of action alleged therein is barred because there
25 was no employment relationship between Plaintiff and/or the putative class members and/or
26 allegedly aggrieved employees and Defendants TJO Floral, LLC or Antoine Overgaag.
27 ///
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 THIRTEENTH AFFIRMATIVE DEFENSE
2 (No Individual Liability)
3 13. The Complaint and each cause of action alleged therein is barred because based
4 on the claims asserted there can be no individual liability as to individual Defendant Antoine
5 Overgaag, factually or as a matter of law.
6 FOURTEENTH AFFIRMATIVE DEFENSE
7 (No Joint Employer Relationship or Alter Ego Liability)
8 14. The Complaint and each cause of action alleged therein is barred to the extent
9 that it alleges that the named defendants are joint employers of Plaintiffs and/or the putative
10 class and/or allegedly aggrieved employees; the entities are separate, distinct and independent
11 and not in concert with any other Defendants, and they are not the agent of any other
12 Defendant(s), not acting as a joint enterprise, and not the alter ego of any other Defendant(s).
13 FIFTEENTH AFFIRMATIVE DEFENSE
14 (Third Party Act or Omission)
15 15. Any damages Plaintiff and/or putative class members and/or allegedly
16 aggrieved employees might have suffered were caused solely or in part by persons, firms,
17 corporations or entities other than Defendants and not by any act or omission for which
18 Defendants may be held legally or equitably responsible.
19 SIXTEENTH AFFIRMATIVE DEFENSE
20 (No Unfair, Unlawful, or Fraudulent Business Act)
21 16. Any alleged conduct of Defendants was not unlawful, unfair, or fraudulent
22 under Bus. & Prof. Code § 17200, as Defendants sought to and did comply in good faith with
23 applicable labor rules and regulations.
24 SEVENTEENTH AFFIRMATIVE DEFENSE
25 (Defense to Underlying Action)
26 17. All defenses to underlying claims under the Labor Code also constitute a
27 defense to the cause of action under Bus. & Prof. Code § 17200.
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 (Not a Proper Class Action)
3 18. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
4 action” because this case does not meet the requirements of Code of Civil Procedure § 382.
5 NINETEENTH AFFIRMATIVE DEFENSE
6 (No Ascertainable Class)
7 19. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
8 action” because there is not an ascertainable class.
9 TWENTIETH AFFIRMATIVE DEFENSE
10 (No Community of Interest)
11 20. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
12 action” because there is not a well-defined community of interest in questions of law and fact
13 among the members of the putative class, and/or because the pursuit of individual remedies is
14 not impractical.
15 TWENTY-FIRST AFFIRMATIVE DEFENSE
16 (No Predominant Common Questions of Law and Fact)
17 21. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
18 action” because predominant common questions of law and fact do not exist with respect to
19 members of the putative class.
20 TWENTY-SECOND AFFIRMATIVE DEFENSE
21 (Not a Proper Class Representative)
22 22. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
23 action” because Plaintiff does not adequately represent the putative class.
24 TWENTY-THIRD AFFIRMATIVE DEFENSE
25 (Not Typical)
26 23. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
27 action” because Plaintiff’s claims are not typical of the putative class.
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Class Action - Unmanageable)
3 24. Plaintiff’s causes of action cannot proceed as a purported class action because
4 of difficulties that render the action unmanageable.
5 TWENTY-FIFTH AFFIRMATIVE DEFENSE
6 (Not Similarly Situated)
7 25. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
8 action” because Plaintiff is not similarly situated with respect to the members of the putative
9 class that he seeks to represent.
10 TWENTY-SIXTH AFFIRMATIVE DEFENSE
11 (Class Action - Lack of Standing)
12 26. Plaintiff’s causes of action are barred to the extent they are alleged as a “class
13 action” because Plaintiff lacks standing to bring the claims alleged on behalf of the putative
14 class.
15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
16 (Released Claims/Accord and Satisfaction)
17 27. Plaintiff’s causes of action are barred to as to any members of the putative class
18 and allegedly aggrieved employees to the extent they have settled and released the claims that
19 are the subject matter of this action. To the extent such settlements have occurred, the claims
20 covered by those releases are barred in whole or in part by the doctrines of settlement, accord,
21 and satisfaction.
22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
23 (Offset)
24 28. Plaintiff’s causes of action should be barred or recovery reduced because some
25 or all of the damages claimed by Plaintiff and/or the putative class and/or allegedly aggrieved
26 employees are offset by compensation paid but not required by Defendants.
27 ///
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 TWENTY-NINTH AFFIRMATIVE DEFENSE
2 (Equitable Defenses)
3 29. Some or all of the purported causes of action alleged in the Complaint are
4 barred in whole or in part by the equitable doctrines of laches, waiver, estoppel, and/or unclean
5 hands.
6 THIRTIETH AFFIRMATIVE DEFENSE
7 (Good Faith)
8 30. Plaintiff’s claims are barred because Defendants acted towards Plaintiff and the
9 putative class and allegedly aggrieved employees at all times in good faith and for legitimate
10 business reasons.
11 THIRTY-FIRST AFFIRMATIVE DEFENSE
12 (Failure to Comply with Directions of Employer)
13 31. Plaintiff’s causes of action are barred because any alleged wrongdoing by
14 Defendants, although such is not admitted here, arose from the failure of Plaintiff and/or the
15 putative class and/or allegedly aggrieved employees to substantially comply with employer
16 directions, as required by Labor Code § 2856.
17 THIRTY-SECOND AFFIRMATIVE DEFENSE
18 (Failure to Mitigate)
19 32. To the extent Plaintiff and/or members of the putative class and/or allegedly
20 aggrieved employees Plaintiff purports to represent sustained any loss, injury, or damages,
21 which Defendants expressly deny, such damages were directly and proximately caused or
22 exacerbated by Plaintiff’s and/or the putative members’ and/or allegedly aggrieved employees’
23 own failure to take actions to mitigate any losses, injuries, or damages.
24 THIRTY-THIRD AFFIRMATIVE DEFENSE
25 (Avoidable Consequences)
26 33. The claims of Plaintiff and/or the putative class members and/or allegedly
27 aggrieved employees are barred or recovery reduced by the doctrine of avoidable
28 consequences.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 THIRTY-FOURTH AFFIRMATIVE DEFENSE
2 (Arbitration)
3 34. Plaintiff and/or the putative class and/or allegedly aggrieved employees are
4 precluded from litigating this matter in this Court to the extent an agreement exists between
5 Defendants and Plaintiff, or between Defendants and any member of the putative class or
6 allegedly aggrieved employee, that expressly provides for the individual arbitration of disputes
7 alleged in the Complaint. Defendants do not waive their right to enforce any arbitration
8 agreements with Plaintiff or the putative class members or allegedly aggrieved employees.
9 THIRTY-FIFTH AFFIRMATIVE DEFENSE
10 (Failure to Satisfy Notice/Exhaustion Requirements)
11 35. The Complaint is barred to the extent Plaintiff failed to timely or completely
12 exhaust the requisite administrative and/or statutory remedies available prior to commencing this
13 action, including but not limited to the notice and exhaustion requirements set forth in Labor
14 Code § 2699.3.
15 THIRTY-SIXTH AFFIRMATIVE DEFENSE
16 (Regulatory Violations)
17 36. The Complaint is barred to the extent Plaintiff seeks to recover PAGA penalties
18 for alleged regulatory (rather than statutory) violations, although such violations are not admitted
19 here.
20 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
21 (Unintentional Commitment)
22 37. The Complaint is barred because any alleged failure to pay Plaintiff and/or the
23 putative class members and/or allegedly aggrieved employees less than the minimum wage
24 (although such failure is not admitted here) was not “intentionally committed,” as required for
25 the civil penalty specified in Labor Code § 1197.1 to apply.
26 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
27 (No Willful Failure to Pay Wages)
28 38. Any alleged failure to timely pay wages upon termination or resignation to
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 Plaintiff and/or the putative class members and/or allegedly aggrieved employees, although such
2 is not admitted here, was not willful.
3 THIRTY-NINTH AFFIRMATIVE DEFENSE
4 (No 203 Penalties for Employees Not Terminated)
5 39. The Complaint is barred in whole or in part to the extent it seeks Labor Code §
6 203 penalties for employees who have not been terminated or resigned from their employment.
7 FORTIETH AFFIRMATIVE DEFENSE
8 (No Derivative Claims for Untimely Payment of Wages)
9 40. Any alleged failure to pay certain wages and/or premiums to Plaintiff and/or the
10 putative class members and/or allegedly aggrieved employees, although such is not admitted
11 here, cannot support a derivative cause of action for “untimely payment of wages.”
12 FORTY-FIRST AFFIRMATIVE DEFENSE
13 (No Recovery of Allegedly Unpaid Wages)
14 41. The Complaint is barred to the extent it seeks to recover “amounts sufficient to
15 recover underpaid wages” under Labor Code § 558, rather than the allegedly applicable civil
16 penalty.
17 FORTY-SECOND AFFIRMATIVE DEFENSE
18 (Lack of Standing)
19 42. Plaintiff lack standing to bring the claims for civil penalties alleged in the
20 Complaint on behalf of others because she is not an “aggrieved employee” as defined in Labor
21 Code § 2699(c).
22 FORTY-THIRD AFFIRMATIVE DEFENSE
23 (PAGA Claims Unmanageable)
24 43. The PAGA claims alleged in the Complaint are unmanageable because, among
25 other things, resolving them would require individualized inquiries.
26 ///
27 ///
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 FORTY-FOURTH AFFIRMATIVE DEFENSE
2 (PAGA Penalties Limited to Initial Violation)
3 44. To the extent Defendants have never been cited by the Labor Commissioner or
4 been subject to a judgment against it in a court of law for the conduct alleged in the Complaint,
5 any civil penalties sought in the Complaint and awarded under Labor Code §§ 2698 et seq. must
6 be limited to those penalties applicable to an “initial violation.”
7 FORTY-FIFTH AFFIRMATIVE DEFENSE
8 (No Stacking of PAGA Penalties)
9 45. To the extent the Complaint seeks multiple civil penalties for the same underlying
10 alleged violation, or multiple civil penalties for multiple alleged violations in a single pay period,
11 such double recovery is prohibited and would constitute unjust enrichment.
12 FORTY-SIXTH AFFIRMATIVE DEFENSE
13 (Failure to Identify Aggrieved Employees)
14 46. Plaintiff has failed to identify any other allegedly “aggrieved employees,” as
15 provided in Labor Code § 2698, et seq.
16 FORTY-SEVENTH AFFIRMATIVE DEFENSE
17 (Substantial Compliance)
18 47. The civil penalties sought in the Complaint should be barred or recovery reduced
19 because, to the extent Defendants did not comply with applicable law, although such is not
20 admitted here, Defendants nonetheless substantially complied with the law with respect to
21 Plaintiff, the putative class members, and the allegedly aggrieved employees.
22 FORTY-EIGHTH AFFIRMATIVE DEFENSE
23 (Unjust Award)
24 48. The civil penalties sought in the Complaint are unjust, arbitrary and oppressive,
25 and/or confiscatory, and should thus be barred or reduced pursuant to Labor Code § 2699(e).
26 FORTY-NINTH AFFIRMATIVE DEFENSE
27 (Excessive Fines)
28 49. As applied to this action, imposition of any of the civil penalties sought against
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 Defendants in the Complaint would result in the imposition of excessive fines in violation of
2 Article I, section 17 of the California Constitution and the eighth amendment of the United States
3 Constitution.
4 FIFTIETH AFFIRMATIVE DEFENSE
5 (Due Process)
6 50. The causes of action in the Complaint are barred because PAGA is
7 unconstitutionally vague and overbroad as applied to the facts and circumstances of this case,
8 and because the prosecution of this action by Plaintiff as representatives of other allegedly
9 aggrieved employees would constitute a denial of Defendants’ due process rights, both
10 procedural and substantive, in violation of the United States and California Constitutions.
11 FIFTY-FIRST AFFIRMATIVE DEFENSE
12 (No Attorney’s Fees or Costs)
13 51. The Complaint and each cause of action alleged therein do not state facts
14 sufficient to entitle Plaintiff to costs of suit or an award of attorney’s fees, and Plaintiff is not
15 entitled under applicable law to recover attorneys’ fees for some or all of the claims asserted in
16 the Complaint.
17 (Further Defenses Reserved)
18 52. Defendants reserve the right to assert additional defenses as they become
19 available during discovery.
20 PRAYER FOR RELIEF
21 Defendants pray as follows:
22 1. That Plaintiff, the putative class, and the allegedly aggrieved employees take
23 nothing by the Complaint;
24 2. That judgment be entered in favor of Defendants and against Plaintiff, the
25 putative class, and the allegedly aggrieved employees on all causes of action;
26 3. That Defendants recover costs of suit herein;
27 4. That Defendants recover reasonable attorney’s fees incurred herein pursuant to
28 applicable law; and
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 5. That the Court award such other and further relief as it deems just and proper.
2
3 DATED: April 23, 2024 Respectfully submitted,
4 MULLEN & HENZELL L.L.P.
5
6 By: ________________________________
Rafael Gonzalez
7
Attorneys for Defendants
8 WESTERLAY ORCHIDS, LP; TJO
FLORAL, LLC; and ANTOINE OVERGAAG
9 12275-0018
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DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
1 PROOF OF SERVICE
(Code Civ. Proc. §§ 1013a & 2015.5)
2
3 I am employed in the County of Santa Barbara, State of California. I am over 18 years
4 of age and not a party to the within action. My business address is 112 East Victoria Street,
5 Santa Barbara, California 93101.
6 On April 23, 2024, I caused to be served DEFENDANTS’ ANSWER TO
7 PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT on the interested
8 party(ies) in this action, addressed as follows:
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Service List Attached
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BY MAIL: I am readily familiar with the Mullen & Henzell L.L.P. practice for
12 collection and processing of correspondence for mailing with the United States Postal
Service (USPS). The correspondence indicated above would be deposited with the
13 USPS the same date as this declaration in the ordinary course of business. The
correspondence was placed for deposit with the USPS at the offices of Mullen &
14 Henzell L.L.P., 112 East Victoria Street, Santa Barbara, California. The envelope(s)
was/were sealed with postage fully prepaid on this date and placed for collection and
15 mailing following ordinary business practices and addressed as indicated above.
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BY FEDERAL EXPRESS (FedEx) / UNITED PARCEL SERVICE (UPS) / OTHER
17 (Specify) OVERNIGHT DELIVERY: I left the above-referenced document(s) for
delivery at a FedEx / UPS / Other (Specify) drop off location in a sealed envelope
18 addressed as indicated above, with fees for delivery fully prepaid.
19 BY ELECTRONIC SERVICE: I caused the above-referenced document(s) to be
electronically served to the parties at the addresses indicated above.
20
BY PERSONAL SERVICE: I caused the above-referenced document(s) to be hand
21 delivered to the party(ies) at the address(es) indicated above.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct, and that this declaration was executed on April 23, 2024, at
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Santa Barbara, California.
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26 Laura J. Sire
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Benitez v. Westerlay Orchids, LLC, et al.
Case No. 23CV04353
SERVICE LIST
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2 ATTORNEY(S) FOR PLAINTIFF:
3 SHOHAM J. SOLOUKI
GRANT JOSEPH SAVOY
4 SOLOUKI | SAVOY, LLP
316 W. 2ND STREET, SUITE 1200
5 LOS ANGELES, CA 90012
TEL: (213) 814-4940
6 FAX: (213) 814-2550
EMAIL: SHOHAM@SOLOUKISAVOY.COM
7 GRANT@SOLOUKISAVOY.COM
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Benitez v. Westerlay Orchids, LLC, et al.
Case No. 23CV04353
Preview
1 Rafael Gonzalez, SBN 210202 rgonzalez@mullenlaw.com 2 Christina M. Behrman, SBN 313226 cbehrman@mullenlaw.com 3 Sean Stratford-Jones, SBN 324440 sstratford-jones@mullenlaw.com 4 MULLEN & HENZELL L.L.P. 112 East Victoria Street 5 Post Office Drawer 789 Santa Barbara, CA 93102-0789 6 Telephone: (805) 966-1501 Facsimile: (805) 966-9204 7 Attorneys for Defendants 8 WESTERLAY ORCHIDS, LP; TJO FLORAL, LLC; and ANTOINE OVERGAAG 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SANTA BARBARA 12 ANACAPA DIVISION 13 14 LETICIA BERNABE BENITEZ, an ) Case No. 23CV04353 individual and class representative on) 15 behalf of herself and all other similarly ) situated non-exempt former and current) DEFENDANTS’ ANSWER TO 16 employees, ) PLAINTIFF’S FIRST AMENDED CLASS ) ACTION COMPLAINT 17 Plaintiffs, ) ) 18 v. ) Dept.: 3 ) Judge: Hon. Thomas P. Anderle 19 WESTERLAY ORCHIDS, LLC, a ) California Limited Liability Company; ) Complaint Filed: October 3, 2023 20 WESTERLAY ORCHIDS, LP, a ) FAC Filed: March 20, 2024 California Limited Partnership; TJO ) 21 FLORAL, LLC, a California Limited ) Liability Company; ANTOINE ) 22 OVERGAAG, an individual; and DOES 1 ) through 100, inclusive, ) 23 ) Defendants. ) 24 ) ) 25 26 27 28 -1- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 Defendants Westerlay Orchids, LP (erroneously sued as Westerlay Orchids, LLC); TJO 2 Floral, LLC; and Antoine Overgaag (collectively, “Defendants”) hereby answer Plaintiff’s 3 unverified First Amended Class Action Complaint (the “Complaint”) as follows: 4 GENERAL DENIAL 5 Pursuant to the provisions of Section 431.30 of the Code of Civil Procedure, 6 Defendants generally deny all the allegations of Plaintiff’s Complaint, and further deny that 7 Plaintiff and/or the putative class members and/or allegedly aggrieved employees have been 8 damaged in any amount, or at all. Defendants also specifically deny that Defendants are liable 9 to Plaintiff and/or the putative class members and/or allegedly aggrieved employees for the 10 sum or sums alleged or for any other amount whatsoever. 11 AFFIRMATIVE DEFENSES 12 In further answer to Plaintiff’s Complaint, Defendants assert the following affirmative 13 defenses. In so doing, Defendants do not concede that it has the burden of production or proof 14 as to any affirmative defense asserted below. Further, Defendants do not presently know all 15 facts sufficient to state all affirmative defenses at this time. Accordingly, Defendants may seek 16 leave of this Court to amend this Answer should it later discover facts demonstrating the 17 existence of additional affirmative defenses. 18 FIRST AFFIRMATIVE DEFENSE 19 (Failure to State a Claim) 20 1. The Complaint and each cause of action therein fails to allege facts sufficient to 21 constitute a cause of action upon which relief may be granted. 22 SECOND AFFIRMATIVE DEFENSE 23 (Statute of Limitations) 24 2. The Complaint and each cause of action alleged therein is barred by the 25 applicable statute of limitations, including but not limited to Code of Civil Procedure §§ 338(a) 26 and 340(a), Bus. & Prof. Code § 17208, and Labor Code §§ 203(b) and 2699.3. 27 /// 28 /// -2- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 (De Minimis) 3 3. Any off-the-clock work performed by Plaintiff and/or the putative class and/or 4 allegedly aggrieved employees, although such is not admitted here, was de minimis and not 5 compensable. 6 FOURTH AFFIRMATIVE DEFENSE 7 (No Knowledge of Work) 8 4. If Plaintiff and/or members of the putative class and/or allegedly aggrieved 9 employees “worked” time for which compensation was not paid, Defendants had no 10 knowledge, or reason to know, of such “work” and such “work” was undertaken without the 11 consent or permission of Defendants. 12 FIFTH AFFIRMATIVE DEFENSE 13 (No Private Right of Action) 14 5. The Complaint and each cause of action therein is barred to the extent it seeks 15 recovery for alleged violations of the Labor Code for which no private right of action exists. 16 SIXTH AFFIRMATIVE DEFENSE 17 (No Injury) 18 6. Plaintiff and/or the putative class and/or allegedly aggrieved employees did not 19 suffer any injury as a result of any alleged failure by Defendants to provide accurate itemized 20 wage statements, although such is not admitted here. 21 SEVENTH AFFIRMATIVE DEFENSE 22 (No Knowing and Intentional Failure to Provide Wage Statements) 23 7. Any alleged failure to provide accurate wage statements to Plaintiff and/or the 24 putative class and/or allegedly aggrieved employees, although such is not admitted here, was 25 not knowing and intentional, and/or was the result of an isolated and unintentional error due to 26 a clerical or inadvertent mistake. 27 /// 28 /// -3- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 EIGHTH AFFIRMATIVE DEFENSE 2 (Bona Fide Dispute) 3 8. The Complaint fails to state a claim for penalties under the California Labor 4 Code in that there was a good faith dispute as to Defendants’ obligations under any applicable 5 Labor Code provisions, including, without limitation, Labor Code section 203, and a bona fide 6 dispute as to whether Defendants failed to pay all wages due. 7 NINTH AFFIRMATIVE DEFENSE 8 (No Derivative Penalties) 9 9. The Complaint is barred to the extent any of the claims are derivative of other 10 alleged violations including but not limited to missed meal and rest periods and failure to pay 11 minimum wages for all time worked (although such are not admitted here). 12 TENTH AFFIRMATIVE DEFENSE 13 (Substantial Compliance) 14 10. To the extent Defendants did not comply with applicable law (although such is 15 not admitted here), Defendants nonetheless substantially complied with the law with respect to 16 Plaintiff and the putative class members and allegedly aggrieved employees. 17 ELEVENTH AFFIRMATIVE DEFENSE 18 (No Willful Violation of Law) 19 11. The Complaint fails to state a claim for penalties, including, without limitation, 20 penalties under Labor Code section 203, because Defendants did not willfully or intentionally 21 violate California law, including, but not limited to the California Labor Code. 22 TWELFTH AFFIRMATIVE DEFENSE 23 (No Employment Relationship) 24 12. The Complaint and each cause of action alleged therein is barred because there 25 was no employment relationship between Plaintiff and/or the putative class members and/or 26 allegedly aggrieved employees and Defendants TJO Floral, LLC or Antoine Overgaag. 27 /// 28 /// -4- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 THIRTEENTH AFFIRMATIVE DEFENSE 2 (No Individual Liability) 3 13. The Complaint and each cause of action alleged therein is barred because based 4 on the claims asserted there can be no individual liability as to individual Defendant Antoine 5 Overgaag, factually or as a matter of law. 6 FOURTEENTH AFFIRMATIVE DEFENSE 7 (No Joint Employer Relationship or Alter Ego Liability) 8 14. The Complaint and each cause of action alleged therein is barred to the extent 9 that it alleges that the named defendants are joint employers of Plaintiffs and/or the putative 10 class and/or allegedly aggrieved employees; the entities are separate, distinct and independent 11 and not in concert with any other Defendants, and they are not the agent of any other 12 Defendant(s), not acting as a joint enterprise, and not the alter ego of any other Defendant(s). 13 FIFTEENTH AFFIRMATIVE DEFENSE 14 (Third Party Act or Omission) 15 15. Any damages Plaintiff and/or putative class members and/or allegedly 16 aggrieved employees might have suffered were caused solely or in part by persons, firms, 17 corporations or entities other than Defendants and not by any act or omission for which 18 Defendants may be held legally or equitably responsible. 19 SIXTEENTH AFFIRMATIVE DEFENSE 20 (No Unfair, Unlawful, or Fraudulent Business Act) 21 16. Any alleged conduct of Defendants was not unlawful, unfair, or fraudulent 22 under Bus. & Prof. Code § 17200, as Defendants sought to and did comply in good faith with 23 applicable labor rules and regulations. 24 SEVENTEENTH AFFIRMATIVE DEFENSE 25 (Defense to Underlying Action) 26 17. All defenses to underlying claims under the Labor Code also constitute a 27 defense to the cause of action under Bus. & Prof. Code § 17200. 28 /// -5- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 (Not a Proper Class Action) 3 18. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 4 action” because this case does not meet the requirements of Code of Civil Procedure § 382. 5 NINETEENTH AFFIRMATIVE DEFENSE 6 (No Ascertainable Class) 7 19. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 8 action” because there is not an ascertainable class. 9 TWENTIETH AFFIRMATIVE DEFENSE 10 (No Community of Interest) 11 20. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 12 action” because there is not a well-defined community of interest in questions of law and fact 13 among the members of the putative class, and/or because the pursuit of individual remedies is 14 not impractical. 15 TWENTY-FIRST AFFIRMATIVE DEFENSE 16 (No Predominant Common Questions of Law and Fact) 17 21. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 18 action” because predominant common questions of law and fact do not exist with respect to 19 members of the putative class. 20 TWENTY-SECOND AFFIRMATIVE DEFENSE 21 (Not a Proper Class Representative) 22 22. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 23 action” because Plaintiff does not adequately represent the putative class. 24 TWENTY-THIRD AFFIRMATIVE DEFENSE 25 (Not Typical) 26 23. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 27 action” because Plaintiff’s claims are not typical of the putative class. 28 /// -6- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Class Action - Unmanageable) 3 24. Plaintiff’s causes of action cannot proceed as a purported class action because 4 of difficulties that render the action unmanageable. 5 TWENTY-FIFTH AFFIRMATIVE DEFENSE 6 (Not Similarly Situated) 7 25. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 8 action” because Plaintiff is not similarly situated with respect to the members of the putative 9 class that he seeks to represent. 10 TWENTY-SIXTH AFFIRMATIVE DEFENSE 11 (Class Action - Lack of Standing) 12 26. Plaintiff’s causes of action are barred to the extent they are alleged as a “class 13 action” because Plaintiff lacks standing to bring the claims alleged on behalf of the putative 14 class. 15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 16 (Released Claims/Accord and Satisfaction) 17 27. Plaintiff’s causes of action are barred to as to any members of the putative class 18 and allegedly aggrieved employees to the extent they have settled and released the claims that 19 are the subject matter of this action. To the extent such settlements have occurred, the claims 20 covered by those releases are barred in whole or in part by the doctrines of settlement, accord, 21 and satisfaction. 22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 23 (Offset) 24 28. Plaintiff’s causes of action should be barred or recovery reduced because some 25 or all of the damages claimed by Plaintiff and/or the putative class and/or allegedly aggrieved 26 employees are offset by compensation paid but not required by Defendants. 27 /// 28 /// -7- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 (Equitable Defenses) 3 29. Some or all of the purported causes of action alleged in the Complaint are 4 barred in whole or in part by the equitable doctrines of laches, waiver, estoppel, and/or unclean 5 hands. 6 THIRTIETH AFFIRMATIVE DEFENSE 7 (Good Faith) 8 30. Plaintiff’s claims are barred because Defendants acted towards Plaintiff and the 9 putative class and allegedly aggrieved employees at all times in good faith and for legitimate 10 business reasons. 11 THIRTY-FIRST AFFIRMATIVE DEFENSE 12 (Failure to Comply with Directions of Employer) 13 31. Plaintiff’s causes of action are barred because any alleged wrongdoing by 14 Defendants, although such is not admitted here, arose from the failure of Plaintiff and/or the 15 putative class and/or allegedly aggrieved employees to substantially comply with employer 16 directions, as required by Labor Code § 2856. 17 THIRTY-SECOND AFFIRMATIVE DEFENSE 18 (Failure to Mitigate) 19 32. To the extent Plaintiff and/or members of the putative class and/or allegedly 20 aggrieved employees Plaintiff purports to represent sustained any loss, injury, or damages, 21 which Defendants expressly deny, such damages were directly and proximately caused or 22 exacerbated by Plaintiff’s and/or the putative members’ and/or allegedly aggrieved employees’ 23 own failure to take actions to mitigate any losses, injuries, or damages. 24 THIRTY-THIRD AFFIRMATIVE DEFENSE 25 (Avoidable Consequences) 26 33. The claims of Plaintiff and/or the putative class members and/or allegedly 27 aggrieved employees are barred or recovery reduced by the doctrine of avoidable 28 consequences. -8- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 THIRTY-FOURTH AFFIRMATIVE DEFENSE 2 (Arbitration) 3 34. Plaintiff and/or the putative class and/or allegedly aggrieved employees are 4 precluded from litigating this matter in this Court to the extent an agreement exists between 5 Defendants and Plaintiff, or between Defendants and any member of the putative class or 6 allegedly aggrieved employee, that expressly provides for the individual arbitration of disputes 7 alleged in the Complaint. Defendants do not waive their right to enforce any arbitration 8 agreements with Plaintiff or the putative class members or allegedly aggrieved employees. 9 THIRTY-FIFTH AFFIRMATIVE DEFENSE 10 (Failure to Satisfy Notice/Exhaustion Requirements) 11 35. The Complaint is barred to the extent Plaintiff failed to timely or completely 12 exhaust the requisite administrative and/or statutory remedies available prior to commencing this 13 action, including but not limited to the notice and exhaustion requirements set forth in Labor 14 Code § 2699.3. 15 THIRTY-SIXTH AFFIRMATIVE DEFENSE 16 (Regulatory Violations) 17 36. The Complaint is barred to the extent Plaintiff seeks to recover PAGA penalties 18 for alleged regulatory (rather than statutory) violations, although such violations are not admitted 19 here. 20 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 21 (Unintentional Commitment) 22 37. The Complaint is barred because any alleged failure to pay Plaintiff and/or the 23 putative class members and/or allegedly aggrieved employees less than the minimum wage 24 (although such failure is not admitted here) was not “intentionally committed,” as required for 25 the civil penalty specified in Labor Code § 1197.1 to apply. 26 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 27 (No Willful Failure to Pay Wages) 28 38. Any alleged failure to timely pay wages upon termination or resignation to -9- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 Plaintiff and/or the putative class members and/or allegedly aggrieved employees, although such 2 is not admitted here, was not willful. 3 THIRTY-NINTH AFFIRMATIVE DEFENSE 4 (No 203 Penalties for Employees Not Terminated) 5 39. The Complaint is barred in whole or in part to the extent it seeks Labor Code § 6 203 penalties for employees who have not been terminated or resigned from their employment. 7 FORTIETH AFFIRMATIVE DEFENSE 8 (No Derivative Claims for Untimely Payment of Wages) 9 40. Any alleged failure to pay certain wages and/or premiums to Plaintiff and/or the 10 putative class members and/or allegedly aggrieved employees, although such is not admitted 11 here, cannot support a derivative cause of action for “untimely payment of wages.” 12 FORTY-FIRST AFFIRMATIVE DEFENSE 13 (No Recovery of Allegedly Unpaid Wages) 14 41. The Complaint is barred to the extent it seeks to recover “amounts sufficient to 15 recover underpaid wages” under Labor Code § 558, rather than the allegedly applicable civil 16 penalty. 17 FORTY-SECOND AFFIRMATIVE DEFENSE 18 (Lack of Standing) 19 42. Plaintiff lack standing to bring the claims for civil penalties alleged in the 20 Complaint on behalf of others because she is not an “aggrieved employee” as defined in Labor 21 Code § 2699(c). 22 FORTY-THIRD AFFIRMATIVE DEFENSE 23 (PAGA Claims Unmanageable) 24 43. The PAGA claims alleged in the Complaint are unmanageable because, among 25 other things, resolving them would require individualized inquiries. 26 /// 27 /// 28 /// -10- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 FORTY-FOURTH AFFIRMATIVE DEFENSE 2 (PAGA Penalties Limited to Initial Violation) 3 44. To the extent Defendants have never been cited by the Labor Commissioner or 4 been subject to a judgment against it in a court of law for the conduct alleged in the Complaint, 5 any civil penalties sought in the Complaint and awarded under Labor Code §§ 2698 et seq. must 6 be limited to those penalties applicable to an “initial violation.” 7 FORTY-FIFTH AFFIRMATIVE DEFENSE 8 (No Stacking of PAGA Penalties) 9 45. To the extent the Complaint seeks multiple civil penalties for the same underlying 10 alleged violation, or multiple civil penalties for multiple alleged violations in a single pay period, 11 such double recovery is prohibited and would constitute unjust enrichment. 12 FORTY-SIXTH AFFIRMATIVE DEFENSE 13 (Failure to Identify Aggrieved Employees) 14 46. Plaintiff has failed to identify any other allegedly “aggrieved employees,” as 15 provided in Labor Code § 2698, et seq. 16 FORTY-SEVENTH AFFIRMATIVE DEFENSE 17 (Substantial Compliance) 18 47. The civil penalties sought in the Complaint should be barred or recovery reduced 19 because, to the extent Defendants did not comply with applicable law, although such is not 20 admitted here, Defendants nonetheless substantially complied with the law with respect to 21 Plaintiff, the putative class members, and the allegedly aggrieved employees. 22 FORTY-EIGHTH AFFIRMATIVE DEFENSE 23 (Unjust Award) 24 48. The civil penalties sought in the Complaint are unjust, arbitrary and oppressive, 25 and/or confiscatory, and should thus be barred or reduced pursuant to Labor Code § 2699(e). 26 FORTY-NINTH AFFIRMATIVE DEFENSE 27 (Excessive Fines) 28 49. As applied to this action, imposition of any of the civil penalties sought against -11- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 Defendants in the Complaint would result in the imposition of excessive fines in violation of 2 Article I, section 17 of the California Constitution and the eighth amendment of the United States 3 Constitution. 4 FIFTIETH AFFIRMATIVE DEFENSE 5 (Due Process) 6 50. The causes of action in the Complaint are barred because PAGA is 7 unconstitutionally vague and overbroad as applied to the facts and circumstances of this case, 8 and because the prosecution of this action by Plaintiff as representatives of other allegedly 9 aggrieved employees would constitute a denial of Defendants’ due process rights, both 10 procedural and substantive, in violation of the United States and California Constitutions. 11 FIFTY-FIRST AFFIRMATIVE DEFENSE 12 (No Attorney’s Fees or Costs) 13 51. The Complaint and each cause of action alleged therein do not state facts 14 sufficient to entitle Plaintiff to costs of suit or an award of attorney’s fees, and Plaintiff is not 15 entitled under applicable law to recover attorneys’ fees for some or all of the claims asserted in 16 the Complaint. 17 (Further Defenses Reserved) 18 52. Defendants reserve the right to assert additional defenses as they become 19 available during discovery. 20 PRAYER FOR RELIEF 21 Defendants pray as follows: 22 1. That Plaintiff, the putative class, and the allegedly aggrieved employees take 23 nothing by the Complaint; 24 2. That judgment be entered in favor of Defendants and against Plaintiff, the 25 putative class, and the allegedly aggrieved employees on all causes of action; 26 3. That Defendants recover costs of suit herein; 27 4. That Defendants recover reasonable attorney’s fees incurred herein pursuant to 28 applicable law; and -12- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 5. That the Court award such other and further relief as it deems just and proper. 2 3 DATED: April 23, 2024 Respectfully submitted, 4 MULLEN & HENZELL L.L.P. 5 6 By: ________________________________ Rafael Gonzalez 7 Attorneys for Defendants 8 WESTERLAY ORCHIDS, LP; TJO FLORAL, LLC; and ANTOINE OVERGAAG 9 12275-0018 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 1 PROOF OF SERVICE (Code Civ. Proc. §§ 1013a & 2015.5) 2 3 I am employed in the County of Santa Barbara, State of California. I am over 18 years 4 of age and not a party to the within action. My business address is 112 East Victoria Street, 5 Santa Barbara, California 93101. 6 On April 23, 2024, I caused to be served DEFENDANTS’ ANSWER TO 7 PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT on the interested 8 party(ies) in this action, addressed as follows: 9 Service List Attached 10 11 BY MAIL: I am readily familiar with the Mullen & Henzell L.L.P. practice for 12 collection and processing of correspondence for mailing with the United States Postal Service (USPS). The correspondence indicated above would be deposited with the 13 USPS the same date as this declaration in the ordinary course of business. The correspondence was placed for deposit with the USPS at the offices of Mullen & 14 Henzell L.L.P., 112 East Victoria Street, Santa Barbara, California. The envelope(s) was/were sealed with postage fully prepaid on this date and placed for collection and 15 mailing following ordinary business practices and addressed as indicated above. 16 BY FEDERAL EXPRESS (FedEx) / UNITED PARCEL SERVICE (UPS) / OTHER 17 (Specify) OVERNIGHT DELIVERY: I left the above-referenced document(s) for delivery at a FedEx / UPS / Other (Specify) drop off location in a sealed envelope 18 addressed as indicated above, with fees for delivery fully prepaid. 19 BY ELECTRONIC SERVICE: I caused the above-referenced document(s) to be electronically served to the parties at the addresses indicated above. 20 BY PERSONAL SERVICE: I caused the above-referenced document(s) to be hand 21 delivered to the party(ies) at the address(es) indicated above. 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct, and that this declaration was executed on April 23, 2024, at 24 Santa Barbara, California. 25 26 Laura J. Sire 27 28 Benitez v. Westerlay Orchids, LLC, et al. Case No. 23CV04353 SERVICE LIST 1 2 ATTORNEY(S) FOR PLAINTIFF: 3 SHOHAM J. SOLOUKI GRANT JOSEPH SAVOY 4 SOLOUKI | SAVOY, LLP 316 W. 2ND STREET, SUITE 1200 5 LOS ANGELES, CA 90012 TEL: (213) 814-4940 6 FAX: (213) 814-2550 EMAIL: SHOHAM@SOLOUKISAVOY.COM 7 GRANT@SOLOUKISAVOY.COM 8 4880-0247-9032, v. 1 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Benitez v. Westerlay Orchids, LLC, et al. Case No. 23CV04353