United States District Court, C.D. California
Present: The Honorable Fernando M. Olguin, United States
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
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.
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).
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.”).
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. §
WHETHER REMOVAL WAS TIMELY.
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).
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
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.
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. ...