United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO REMAND TO STATE
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
the Court is Cristobal Acosta's (“Plaintiff”)
Motion To Remand Entire Action To State Court. Motion, ECF
66. On August 19, 2019, mere weeks before the long-scheduled
trial date in this action, Plaintiff filed his motion for
remand on the ground that because this Court has granted
summary judgment as to all of Plaintiff's federal claims,
leaving only state law claims, the Court should exercise its
discretion and remain the entire case to state court. See
Id. For the reasons discussed below, Plaintiff's
motion is DENIED.
night of January 8, 2017, Plaintiff sat in his car stopped at
the side of the road with a mechanical breakdown that caused
“backfiring.” Second Amended Complaint
(“SAC”) ¶ 5, ECF 39. Two California Highway
Patrol (“CHP”) officers responded to an on-duty
sergeant's report of an explosion from the car or
possible “shots fired, ” and approached
Plaintiff's stopped car. Hill Decl. ¶ 2-4, Ex. 2 to
ECF 45-1. After hearing a loud sound coming from
Plaintiff's car, one officer exclaimed “Shots
fired!” and “Get back.” See
generally Morasco Decl. ECF 46-5, Bleisch Decl. ECF
46-3. After hearing a second loud sound from Plaintiff's
car seconds later, both officers opened fire, believing that
the loud sounds coming from Plaintiff's car were gunfire.
Id. One of the bullets struck Plaintiff. Hill Decl.
¶ 9. There is no evidence that Plaintiff possessed a gun
during the encounter.
from the incident described above, Plaintiff filed this
action in California state court on January 17, 2018, against
the CHP, Sergeant Daniel Hill, Officer David Morasco, Jr.,
and Officer Jonas Bleisch (collectively,
“Defendants”). See Compl., Ex. A to
Notice of Removal, ECF 1. On February 14, 2018, Defendants
removed the action to federal court. See Notice of
brought the following five causes of action:
(1) Violation of Civil Rights secured by the Fourth Amendment
to the U.S. Constitution and 42 U.S.C. § 1983 (against
Officers Morasco and Bleisch);
(2) False Arrest and Imprisonment pursuant to Cal. Gov't
Code §§ 815.2(a) & 820.4 (against the CHP and
Officers Morasco and Bleisch);
(3) Battery pursuant to California state law and Cal.
Gov't Code § 815.2(a) (against the CHP and Officers
Morasco and Bleisch);
(4) Violation of the Tom Bane Civil Rights Act, Cal. Civ.
Code § 52.1 (against the CHP and Officers Morasco and
(5) Negligence under California law and Cal. Gov't Code
§§ 815.2(a) & 820.4 (against all Defendants).
See generally SAC. On September 6, 2018, this Court
issued its Case Management Order, setting this matter for
jury trial on September 30, 2019. ECF Doc 34.
filed their motion for summary judgment on January 24, 2019,
seeking judgment in their favor on all claims. See
ECF 45. The Court held a hearing on Defendants' motion
for summary judgment on May 2, 2019. On June 24, 2019, this
Court issued its Order Granting in Part and Denying in Part
Defendants' Motion for Summary Judgment, dismissing all
of Plaintiff's federal claims and leaving only
Plaintiff's state-law claims for battery and negligence.
ECF 58. Plaintiff has chosen not to appeal the Court's
Summary Judgment Order. Motion at 3.
August 19, 2019, Plaintiff filed this Motion. Three days
later, on August 22, 2019, this Court held its Final Pretrial
Conference. ECF 75. On September 3, 2019, Defendants filed
their opposition to the motion for remand. Opp'n, ECF 78.
Plaintiff did not file a reply brief. Jury ...