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Hernandez v. YP Advertising and Publishing LLC

United States District Court, C.D. California

April 26, 2017

Annabel Hernandez
v.
YP Advertising and Publishing LLC

          Present: The Honorable Fernando M. Olguin, United States District Judge

          CIVIL MINUTES - GENERAL

         Proceedings: (In Chambers) Order Remanding Action

         Having reviewed and considered all the briefing filed with respect to plaintiff's Motion to Remand Action to Superior Court (Dkt. 10, “Motion”), the court finds that oral argument is not necessary to resolve the Motion, see Fed.R.Civ.P. 78; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.

         BACKGROUND

         On August 18, 2016, plaintiff Annabel Hernandez (“plaintiff”) filed a Complaint in the Los Angeles County Superior Court against “YP Advertising & Publishing, LLP” for: (1) wrongful termination in violation of public policy; (2) wrongful termination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et. seq.; and (3) unlawful business practices, in violation of California Business & Professions Code §§ 17200, et seq. (Se e Dkt. 1-1, Complaint at ¶¶ 15-37). Plaintiff filed a First Amended Complaint on November 30, 2016, asserting the same claims. (See Dkt. 1-2, First Amended Complaint (“FAC”) at ¶¶ 15-37). On December 29, 2016, YP Advertising and Publishing LLC (“defendant”) removed the action to this court on the basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441. (See Dkt. 1, Notice of Removal (“NOR”) at 1).

         LEGAL STANDARD

         In general, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court[.]” 28 U.S.C. § 1441(a). A removing defendant bears the burden of establishing that removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (“The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.”) (internal quotation marks omitted); Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting the “longstanding, near-canonical rule that the burden on removal rests with the removing defendant”). Moreover, if there is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court. See Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”). Indeed, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); see Kelton Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (“Subject matter jurisdiction may not be waived, and, indeed, we have held that the district court must remand if it lacks jurisdiction.”).

         Title 28 U.S.C. § 1446(b)(1) requires a defendant to file a notice of removal “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” However, “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).

         DISCUSSION

         I. WHETHER REMOVAL WAS TIMELY.

         “[A] named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise, ' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 1325 (1999). “After a defendant learns that an action is removable, he has thirty days to remove the case to federal court.” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006). The period “starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face the facts necessary for federal court jurisdiction.” Id. (internal quotation marks omitted). “Otherwise, the thirty-day clock doesn't begin ticking until a defendant receives a copy of an amended pleading, motion, order or other paper from which it can determine that the case is removable.” Id. (internal quotation marks omitted).

         Here, the parties agree that defendant was formally served with the summons and Complaint on November 4, 2016. (See Dkt. 10, Motion at 3; Dkt. 1, NOR at ¶ 6). However, defendant did not remove the action until December 29, 2016, (see Dkt. 1, NOR), after the deadline for removal had expired.

         Defendant points out that plaintiff's Complaint names an apparently non-existent entity called YP Advertising & Publishing LLP as defendant while defendant is actually named YP Advertising and Publishing LLC. (See Dkt. 14, Defendant's [] Opposition to Plaintiff's Motion to Remand to Superior Court (“Opp.”) at 2). Based on this misnomer, defendant argues that its removal was timely because it was not named in the Complaint, and therefore it “had no ability or legal obligation to remove the complaint until it was actually named as a defendant on November 30, 2016.” (See id.). The court disagrees.

         “[T]he sufficiency of service of process prior to removal is strictly a state law issue[.]” Lee v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir. 1993), overruled on other grounds by, California Dept. of Water Res. v. Powerex Corp., 533 F.3d 1087, 1096 (9th Cir. 2008); see Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (applying California law to determine if defendants were properly served); Song v. KBOS, Inc., 2015 WL 5162556, *3 (D. Haw. 2015) (“Because . . . service of process was attempted in this case prior to removal to federal court, the sufficiency of that service must be assessed in accordance with [] state law.”). In California, “statutory provisions regarding service of process” are “liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant[.]” Dill v. Berquist Constr. Co., 24 Cal.App.4th 1426, 1436-1437 (1994) (internal quotation marks omitted). California law has long held that where a defendant's “agent receive[s] the summons and kn[o]w[s] the contents of the complaint[, ]” a court acquires jurisdiction over the defendant even though there is a misnomer in the name of the defendant. See Thompson v. S. Pac. Co., 180 Cal. 730, 734 (1919); Stephens v. Berry, 249 Cal.App.2d 474, 478 (1967) (noting general rule that when, “through clerical error, a mistake has been made in stating the correct name of a defendant, the error may be corrected at any time before judgment”); Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 58 (1965) (“Here also Coast Manufacturing was neither prejudiced nor misled. It was given full notice that it was the party intended to be sued and the status in which it has been included as a defendant.”). In short, where service has been properly made and “‘the person served is aware that he is the person named as a defendant in the erroneous manner, jurisdiction is obtained.'” Sakaguchi v. Sakaguchi, 173 Cal.App.4th 852, 857 (2009) (quoting Billings v. ...


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