United States District Court, C.D. California
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District
(In Chambers): ORDER RE PLAINTIFFS' MOTION TO REMAND CASE
TO LOS ANGELES SUPERIOR COURT 
the Court is Plaintiff's Motion to Remand (the
“Motion”), filed on January 17, 2017. (Docket No.
13). Defendant filed an Opposition to the Motion on February
6, 2017. (Docket No. 16). Plaintiff filed a Reply on February
7, 2017. (Docket No. 18). The Court held a hearing on
February 27, 2017.
reasons stated below the Motion is DENIED. While the Ninth
Circuit has not spoken on this precise issue, its decisions
in analogous cases as well as the Court's interpretation
of the California law at issue militate against remand here.
Complaint alleges various claims of action under California
law against Defendant, including disability discrimination,
violation of the California Family Rights Act, race
discrimination, national origin discrimination, wrongful
termination, and declaratory relief. (Complaint, Docket No.
1, Ex. 2). Defendant removed the case on December 28, 2016,
alleging the existence of diversity jurisdiction. (Docket No.
threshold requirement for removal under 28 U.S.C. § 1441
is a “finding that the complaint . . . is within the
original jurisdiction of the district court.”
Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861
(9th Cir. 2003). In most circumstances, “federal
district courts have jurisdiction over suits for more than
$75, 000 where the citizenship of each plaintiff is different
from that of each defendant.” Hunter v. Philip
Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (citing
28 U.S.C. § 1332(a)). “The strong presumption
against removal jurisdiction means that the defendant always
has the burden of establishing that removal is proper.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992). Congress has excepted from removal jurisdiction any
“civil action in any State court arising under the
workmen's compensation laws of such State may not be
removed to any district court of the United States.” 28
U.S.C. § 1445(c).
Motion argues that his claims “arise under”
California workers' compensation law, and thus are not
removable to federal court. (Motion at 5). “The term
‘arising under' in the context of § 1445(c)
has the same meaning as ‘arising under' in 28
U.S.C. § 1331, which governs federal question
jurisdiction.” Hamblin v. Coinstar, Inc., 2007
WL 4181822, at *1 (E.D. Cal. Nov. 21, 2007). In the context
of § 1331, the Ninth Circuit has stated that a
“claim arises under federal law within § 1331 if
it is apparent from the face of the complaint either that (1)
a federal law creates the plaintiff's cause of action; or
(2) if a state law creates the cause of action, a federal law
that creates a cause of action is a necessary element of the
plaintiff's claim.” Virgin v. Cty. of San Luis
Obispo, 201 F.3d 1141, 1142-43 (9th Cir. 2000).
fifth cause of action alleges, in part, violations of
California Labor Code section 132a. (Complaint ¶ 102).
Section 132a provides:
(1) Any employer who discharges, or threatens to discharge,
or in any manner discriminates against any employee because
he or she has filed or made known his or her intention to
file a claim for compensation with his or her employer or an
application for adjudication, or because the employee has
received a rating, award, or settlement, is guilty of a
misdemeanor and the employee's compensation shall be
increased by one-half, but in no event more than ten thousand
dollars ($10, 000), together with costs and expenses not in
excess of two hundred fifty dollars ($250). Any such employee
shall also be entitled to reinstatement and reimbursement for
lost wages and work benefits caused by the acts of the
Cal. Labor Code § 132a(1). Plaintiff argues that his
claims under this section arise under California's
workers' compensation law, and thus that this case was
not removable to federal court.
question has been addressed by several federal courts in
California. For example, in Hamblin, the court
concluded that § 1445(c) barred removal of the
plaintiff's claims made under section 132a.
Hamblin, 2007 WL 4181822, at *3. In that case, the
complaint contained only a single cause of action. The court
determined that section 132a codifies a claim for retaliatory
discharge in California. In addition, the statute provides a
“two-fold” remedy to an employee fired for filing
a workers' compensation claim. Id. The employee
can file a claim seeking relief under section 132a with the
Workers' Compensation Appeals Board. Id. Or,
alternatively, the employee may file a common law termination
in violation of public policy claim, known as a
Tameny claim. Id. (citing Tameny v.
Atl. Richfield Co., 27 Cal.3d 167, 176, 164 Cal.Rptr.
839 (1980)). The claims in that case, and in Plaintiff's
case here, were Tamany claims. “To assert a
Tameny claim, the plaintiff must identify the
specific public policy the termination violated and the
public policy must derive from a constitutional provision,
statute, or administrative regulation that serves a statutory