United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO
MENDEZ, UNITED STATES DISTRICT JUDGE
December 28, 2018, Selwyn Vos filed a suit against USAA
General Indemnity Company (“USAA GIC”) in
Sacramento County Superior Court alleging breach of contract,
breach of the covenant of good faith and fair dealing, and
elder financial abuse. Compl., ECF No. 1-1. Defendant removed
the case to federal court. Notice of Removal, ECF No. 1.
Arguing Defendant's removal was untimely, Plaintiff now
moves to remand the case to state court. Mot., ECF No. 8.
Defendant opposes Plaintiff's motion. Opp'n, ECF No.
reasons set forth below, the Court GRANTS Plaintiff's
motion to remand.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
15, 2016, Plaintiff renewed his USAA automobile insurance
policy. First Amended Complaint (“FAC”), ECF No.
1-2 ¶ 7. The policy ran through December 15, 2016. FAC
¶ 7. The policy included $2, 000 in extended benefits
wage earner disability coverage per 30-day period. FAC ¶
8. It also provided essential services disability coverage of
$45.00 per week. FAC ¶ 8. On July 2, a motorist
rear-ended Plaintiff. FAC ¶ 9. At the time, Plaintiff
operated a 40-acre vineyard. FAC ¶ 10. Plaintiff
suffered injuries as a result of the accident that now
prevent him from operating his vineyard. FAC ¶ 11.
the accident, Plaintiff filed a claim for benefits with USAA,
but Defendant denied his claim, in part. FAC ¶ 12-25.
Plaintiff now alleges that Defendant knowingly deprived him
of benefits his policy afforded. FAC ¶ 26. Specifically,
Defendant refused to pay any wage earner disability payments
and only partially paid essential services disability
payments. FAC ¶ 26. Plaintiff further alleges that
Defendant's failure to timely pay his benefits prevented
him from staying current on his mortgage payments for his
vineyard. FAC ¶ 27. As a result, the bank foreclosed
upon the property and sold it for less than its fair market
value. FAC ¶ 27.
filed suit in December 2018. Complaint, ECF No. 1-1. On June
24, 2019, Plaintiff served a California Code of Civil
Procedure § 998 Offer to Compromise on USAA GIC seeking
USAA GIC's agreement to take a judgment against it in
exchange for $250, 000. Offer to Compromise, ECF No. 1-4. Two
days later, Defendant removed the case to federal court,
invoking the Court's diversity jurisdiction. Notice of
Removal, ECF No. 1. Defendant maintains the Offer to
Compromise first put them on notice of the amount in
controversy. Notice of Removal ¶¶ 22-26.
when the United States courts have original jurisdiction over
a civil action filed in state court, a defendant may remove
the suit to the federal court in “the district and
division embracing the place where [the suit] is
pending.” 28 U.S.C. § 1441(a). Removal of a state
action “may be based on either diversity jurisdiction
or federal question jurisdiction.” Godoy v. Family
Dollar, Inc., No. 1:16-cv-00969-DAD-JLT, 2016 WL
4925826, at *1 (E.D. Cal. Sept 16, 2016) (citing City of
Chicago v. Int'l Coll. Of Surgeons, 522 U.S. 156,
163 (1997)). Defendants bear the burden of proving, by a
preponderance of the evidence, the basis of the federal
court's jurisdiction. Cohn v. Petsmart, Inc.,
281 F.3d 837, 839 (9th Cir. 2002).
Plaintiff argues the Court should remand this suit to
Sacramento County Superior Court because Defendant's
removal was untimely. Mot. at 6. Section 1446(b) creates two
thirty-day windows for removing a case from state court.
Godoy, 2016 WL 4925826, at *2. When the presence of federal
jurisdiction is clear on the face of the complaint,
defendants must file a notice of removal within thirty days
of receiving the initial pleading. 28 U.S.C. §
1446(b)(1). When the complaint does not set forth grounds for
federal jurisdiction, defendants must file their notice of
removal within thirty days of receiving “a copy of an
amended pleading, motion, order or other paper from which it
may first be ascertained that the case . . . is or has become
removable.” 28 U.S.C. § 1446(b)(3).
does not dispute that Section 1446(b) creates two distinct
removal periods, nor does he contend his complaint put
Defendant on notice of the amount in controversy. Rather, he
argues that his April 15, 2019 discovery responses made clear
he was seeking more than $75, 000, and thus, triggered
Section 1446's second removal window. Mot. at 4. When
assessing removability, “defendants need not make
extrapolations or engage in guesswork; yet the statute
requires a defendant to apply a reasonable amount of
intelligence” in conducting their analysis.
Kuxhausen v. BMW Financial Services NA LLC, 707 F.3d
1136, 1140 (9th Cir. 2013) (internal quotations and citation
omitted). Plaintiff maintains that the following was
sufficient to put Defendant on notice:
Plaintiff's response to Defendant's Special
Interrogatory No. 22, stating that, in regard to wage earner
disability benefits owed to him, the amount owed was
“[u]nknown at this time but at least $24, 000.00,
” see Exh. D to Mot.;
Plaintiff's attorney fee agreement establishing that he
had entered into an agreement of 38.33 percent of the amount
recovered at or before mediation or court-ordered settlement
conference and 45 percent thereafter, see Exh. E to Mot.;
Plaintiff's September 20, 2018 letter to Defendant
stating that Plaintiff sought $242, 179.00 for damages caused
by Defendant's unreasonable failure to pay benefits due
under the wage earner disability coverage and ...