United States District Court, C.D. California
ORDER GRANTING MOTION TO REMAND (DOC. NO.
VIRGINIA A. PHILLIPS CHIEF UNITED STATES DISTRICT JUDGE
the Court is a Motion to Remand filed by Plaintiff Jacob Cota
(“Plaintiff”). (Doc. No. 25,
“Motion”). The Court deems the Motion suitable
for resolution without oral argument pursuant to Local Rule
7-15. After considering all papers filed in support of, and
in opposition to, the Motion, the Court GRANTS
Plaintiff's Motion to Remand and REMANDS this action to
the Superior Court of California, County of Los Angeles.
filed his state court complaint for workplace discrimination
on January 16, 2019, against Defendants United Parcel
Service, Inc. and “Alvino Last Name Unknown”
(collectively, “Defendants”). (Doc. No. 1-2).
Plaintiff is a resident of Los Angeles County, California.
(Doc. No. 1-2, ¶ 1). Defendant United Parcel Service,
Inc. is an Ohio corporation with its principal place of
business in Georgia. (Doc. No. 1-2, ¶ 2; Doc. No. 1,
¶¶ 11-14). Defendant “Alvino Last Name
Unknown” was later ascertained to be Elvino George,
(Doc. No. 25-1, ¶ 5), a resident of Los Angeles County,
California, (Doc. No. 20, ¶ 3). Defendant removed this
case on March 1, 2019 on the grounds of diversity
jurisdiction, arguing Defendant George was a sham defendant.
(Doc. No. 1, ¶¶ 15-30).
MOTION TO REMAND
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). Federal
courts have subject matter jurisdiction through
“diversity” jurisdiction of all civil actions
where the matter in controversy exceeds $75, 000, exclusive
of interest and costs, and each plaintiff is diverse from
each defendant. 28 U.S.C. § 1332(a); Caterpillar
Inc. v. Lewis, 519 U.S. 61, 68 (1996). The Ninth Circuit
has held that removal “should be construed narrowly in
favor of remand to protect the jurisdiction of state
courts.” Harris v. Bankers Life & Casualty
Co., 425 F.3d 689, 698 (9th Cir. 2005). A federal
court's jurisdiction “must be rejected if there is
any doubt as to the right of removal, ” and a
“defendant always has the burden of establishing that
removal is proper.” Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992).
the Ninth Circuit, a non-diverse defendant is deemed a sham
defendant if, after all disputed questions of fact and all
ambiguities in the controlling state law are resolved in the
plaintiff's favor, the plaintiff could not possibly
recover against the party whose joinder is questioned.”
Padilla v. AT&T Corp., 697 F.Supp.2d 1156, 1158
(C.D. Cal. 2009) (citing Kruso v. International Telephone
& Telegraph Corp., 872 F.2d 1416, 1426 (9th Cir.
1989)). When arguing that a plaintiff has failed to state a
claim against a resident defendant, the failure must be
“obvious according to the well-settled rules of the
state.” United Computer Systems, Inc. v. AT&T
Corp., 298 F.3d 756, 761 (9th Cir. 2002). Moreover,
“remand must be granted” unless a defendant
demonstrates that it is impossible for a plaintiff to prevail
on any cause of action against the resident defendant, and
that the plaintiff would not be given leave to amend the
complaint. Padilla, 697 F.Supp.2d at 1159. Given
this standard, “[t]here is a presumption against
finding fraudulent joinder, and defendants who assert that
plaintiff has fraudulently joined a party carry a heavy
burden of persuasion.” Plute v. Roadway Package
Sys., Inc., 141 F.Supp.2d 1005, 1008 (N.D. Cal. 2001).
brings one claim against Defendant George: harassment in
violation of California's Fair Employment and Housing Act
(“FEHA”). Defendants argue that George is a sham
defendant because the claim is time barred, based on
non-actionable personnel decisions, and based on conduct that
is not severe or pervasive harassment.
Whether Plaintiff's Claim is Time Barred
the continuing tort doctrine, “[w]hen a tort involves
continuing wrongful conduct, the statute of limitations
doesn't begin to run until that conduct ends.”
Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir.
2002). “The doctrine applies where there is ‘no
single incident' that can ‘fairly or realistically
be identified as the cause of significant harm.'”
Id. (quoting Page v. United States, 729
F.2d 818, 821-22 (D.C. Cir. 1984)). The continuing tort
doctrine applies to all FEHA claims. Yanowitz v.
L'Oreal USA, Inc., 36 Cal.4th 1028, 1057-59
(2005); Lelaind v. City & Cty. of San Francisco,
576 F.Supp.2d 1079, 1093 (N.D. Cal. 2008).
have failed to demonstrate that Plaintiff's claim against
George is time barred based on the face of the complaint.
Both parties agree that the date of Plaintiff's discharge
was within the statutory period. (See Doc. No. 28,
at 9). Defendants argue, however, that the harassment all
occurred outside the limitations period. (See Id. at
alleges that a series of harassing behaviors took place over
the course of his employment, ultimately culminating in
Plaintiff's involuntary discharge. (See, e.g.,
Doc. No. 20, ¶¶ 18-32, 39, 43, 49, 53, 59, 64, 69,
74, 79, 84-85, 89-90, 99-100). Indeed, the nature of the
alleged conduct is such that there is no single incident that
can be identified as the cause of significant harm,
Flowers, 310 F.3d at 1126, but instead
Plaintiff's theory is based on the summation of many
interactions that did not acquire permanence or finality
until Plaintiff was discharged. Yanowitz, 36 Cal.4th
at 1059 (“[I]n a retaliation case, as in a disability
accommodation or harassment case, the FEHA statute of
limitations begins to run when an alleged adverse employment
action acquires some degree of permanence or
finality.”); Romano v. Rockwell International
Inc., 14 Cal.4th 479, 493-95 (1996) (holding that a FEHA
action for discriminatory discharge does not commence until
the actual discharge). As such, Plaintiff's claim against
Defendant George is not obviously time barred. See United
Computer Systems, 298 F.3d at 761.
Whether Defendant George's Conduct is Actionable
citing to Janken v. GM Hughes Elecs., 46 Cal.App.4th
55, 80 (1996), argue that even if the conduct is not
time-barred, Defendant George's conduct was not
harassment but instead “primarily constitutes
‘personnel management' decisions, ” which
Defendants argue cannot subject a person to liability. (Doc.
No. 28, at 18). Plaintiff's claim, however, is not based
solely on his discharge but also allegedly pervasive
harassment including conduct outside personnel management
decisions, such as “yelling at him in front of his
co-workers.” (Doc. No. 20, ¶ 19). Accordingly,
Plaintiff's claim does not obviously fail under ...