United States District Court, C.D. California
PRESENT: HONORABLE JOSEPHINE L. STATON, UNITED STATES
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
the Court is a Motion to Remand filed by Plaintiff James
Sanchez. (Mot., Doc. 18.) Defendants YRC Inc. and Dominic
DeSantis opposed, (Opp., Doc. 20), and Plaintiff replied,
(Reply, Doc. 20). The Court finds this matter appropriate for
decision without oral argument. Fed.R.Civ.P. 78(b); C.D. Cal.
R. 7-15. Accordingly, the hearing set for May 11, 2018, at
2:30 p.m., is VACATED. For the following reasons, the Motion
to Remand is GRANTED.
James Sanchez, a citizen of California, worked as a driver
for YRC for 22 years. (FAC ¶¶ 1, 13, Doc. 1-5.) He
identifies as Hispanic and is of Mexican national origin.
(Id. ¶ 127.) Plaintiff was transferred to
YRC's Orange branch in or around 2008, where his manager
was Dominc DeSantis. (Id. 127(a)-(b).) Plaintiff
alleges that he experienced a hostile work environment based
on his race and national origin while at the Orange branch.
In particular, DeSantis accused him of being a thief.
(Id. ¶ 127(b).) DeSantis also made
“multiple racially insensitive remarks in
Plaintiff's presence, ” including a May 2015
comment that “Mexicans are only good for mowing
lawns.” (Id. ¶ 127(c).) Defendants also
harassed Plaintiff by “routinely subject[ing] Plaintiff
to biased personnel management decisions, ” such as
writing him up or suspending him either for false reasons or
for conduct for which non-Hispanic or non-Mexican employees
were not disciplined. (Id. ¶ 127(d).) Plaintiff
complained about the environment, including in January 2016
and May 2016. (Id. ¶ 127(h)-(j).) After he made
complaints, “Defendants increased the intensity and
aggressiveness with which they targeted Plaintiff for unjust
discipline.” (Id. ¶ 127(f).) Plaintiff
also describes that he was discriminated against due to a
back injury, and that YRC failed to engage in the interactive
process regarding his disability. (See id.
about October 13, 2016, Plaintiff filed a complaint of
harassment and discrimination based on race and national
origin, and retaliation, with the Department of Fair
Employment and Housing. (Id. ¶ 127(n).) He
filed the instant suit in state court on January 2, 2018.
(Id. ¶ 127(p).) He amended his complaint on
January 12, 2018, including eleven causes of action.
(See FAC.) All eleven causes of action were brought
against YRC; only two causes of action, those for harassment
based on race and national origin and intentional infliction
of emotional distress, were also brought against DeSantis.
subject matter jurisdiction is based on the presence of a
federal question, see 28 U.S.C. § 1331, or
complete diversity between the parties, see 28
U.S.C. § 1332. Thus, “[a] defendant may remove an
action to federal court based on federal question
jurisdiction or diversity jurisdiction.” Hunter v.
Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).
“However, it is to be presumed that a cause lies
outside [the] limited jurisdiction of [the federal courts]
and the burden of establishing the contrary rests upon the
party asserting jurisdiction.” Id. (quoting
Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684
(9th Cir. 2006)). There is a “strong presumption”
against removal jurisdiction, and courts “strictly
construe the removal statute against removal
jurisdiction.” Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992).
establishing diversity jurisdiction, “one exception to
the requirement for complete diversity is where a non-diverse
defendant has been fraudulently joined.”
Hunter, 582 F.3d at 1043 (citation and internal
quotation marks omitted). “In such a case, the district
court may ignore the presence of that defendant for the
purpose of establishing diversity.” Id.
“There is a strong presumption against finding
fraudulent joinder: ‘In the Ninth Circuit, a
non-diverse defendant is deemed to be fraudulently joined if,
after all disputed questions of fact and all ambiguities in
the controlling state law are resolved in plaintiff's
favor, the plaintiff could not possibly recover
against the party whose joinder is in question.'”
Cervantes v. Wells Fargo Bank, N.A., No.
15-cv-178-JLS-DTBx, 2015 WL 2127215, at *3 (C.D. Cal. May 6,
2015) (emphasis in original) (citing Mireles v. Wells
Fargo Bank, N.A., 845 F.Supp.2d 1034, 1062 (C.D. Cal.
“if there is [no] possibility that a state court would
find that the complaint states a cause of action against any
of the resident defendants, ” Hunter, 582 F.3d
at 1046 (citation omitted) (emphasis added), and “the
failure is obvious according to the settled rules of the
state, ” McCabe v. General Foods Corp., 811
F.2d 1336, 1339 (9th Cir. 2001), may a district court retain
jurisdiction. “In other words, the case must be
remanded ‘unless the defendant shows that the plaintiff
would not be afforded leave to amend his complaint to cure
the purported deficiency.'” Wilson-Condon v.
Allstate Indemnity Co., No. 11-cv-05538-GAF (PJWx), 2011
WL 3439272, at *2 (quoting Padilla v. AT & T
Corp., 697 F.Supp.2d 1156, 1159 (C.D. Cal. 2009)).
“The defendant seeking removal to the federal court is
entitled to present the facts showing the joinder to be
fraudulent.” McCabe, 811 F.2d at 1339
(citation omitted). The “test for fraudulent joinder
and failure to state a claim under Rule 12(b)(6) are not
equivalent.” Grancare, LLC v. Thrower, F.3d
__, 2018 WL 1955039, at *3 (9th Cir. Apr. 26, 2018). The
“district court must consider . . . whether a
deficiency in the complaint can possibly be cured by granting
the plaintiff leave to amend.” Id. at *4.
April 11, 2018, Plaintiff filed the instant Motion, arguing
that complete diversity between the parties is lacking
because Plaintiff and DeSantis are both California citizens.
(Mem. at 1.) Defendants argue that DeSantis is a fraudulently
joined “sham” defendant whose citizenship should
be disregarded for purposes of diversity. (Opp. at 8.)
brings two claims against DeSantis, one for harassment based
on race and national origin in violation of FEHA, and one for
intentional infliction of emotional distress. (See
FAC ¶¶ 126-139, 230-242.) To establish a prima
facie case for a harassment under FEHA, a plaintiff
“must show that he was subjected to unwelcome . . .
race- or . . . [national origin]-related ‘verbal or
physical conduct that was sufficiently severe or pervasive to
alter the conditions of plaintiff's employment and create
an abusive work environment.'” Hooker v.
Parker-Hannifin Corp., No. SACV 11-483-JLS (Ex), 2012 WL
1156437, at *4 (C.D. Cal. Apr. 3, 2012), aff'd,
585 Fed.Appx. 386 (9th Cir. 2014) (quoting Stevens v.
Cnty. of San Mateo, No. 06-15634, 267 Fed.Appx. 684,
685-86 (9th Cir. Feb. 22, 2008)).
argue that Plaintiff's allegations against DeSantis fail
for two reasons. First, Defendants argue that DeSantis'
alleged conduct was not “sufficiently severe or
pervasive” to rise to the level of actionable
harassment. (Opp. at 14.) Second, they argue that
DeSantis' comment to Plaintiff that “Mexicans are
only good for mowing lawns” is outside of the statute
of limitations. (Id.) Plaintiff argues that the
continuing violations doctrine applies, and that his
complaint includes allegations of routine biased personnel
management decisions intended to harass Plaintiff that
continued into the period covered by the one-year statute of
limitations. (Mem. at 16.) To determine if the doctrine
applies, courts consider whether an employer's actions
are “sufficiently similar in kind, ” whether
“they occur with sufficient frequency, ” and
whether “they have not acquired a degree of
‘permanence' so that employees are on notice that
further efforts at informal conciliation with the employer .
. . would be futile.” Richard v. CH2M Hill,
Inc., 26 Cal.4th 798, 802 (2001). The Court concludes
that Plaintiff has demonstrated at least a possibility that a
court would apply the continuing violations doctrine to allow
consideration of DeSantis' May 2015 comment. In
particular, he alleges that as he “made complaints
regarding the race/national origin harassment, Defendants
increased the intensity and aggressiveness with which they
targeted Plaintiff for unjust discipline.” (FAC ¶
127(f)). He ...