United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFFS' MOTION TO REMAND Re:
Dkt. No. 12
J. Davila United States District Judge.
Jose Gutierrez (“Gutierrez”) was injured while
working for Green Team of San Jose (“Green
Team”), a waste disposal company. Gutierrez and his
spouse, Delfina Gutierrez (collectively
“Plaintiffs”), initiated a personal injury suit
in state court against Defendant McNeilus Truck &
Manufacturing, Inc. (“Defendant”), the designer
and manufacturer of the garbage trucks used by Green Team,
and Does 1 through 50. Defendant removed the action to this
court based on diversity of citizenship under 28 U.S.C.
§1441(b). Presently before the court is Plaintiffs'
motion to remand. Plaintiffs contend that the action is
“nonremovable” pursuant to 28 U.S.C. §
1445(c) because the action arises under California's
workers' compensation law. For the reasons set forth
below, the motion to remand will be denied.
Team uses front-end loading garbage trucks designed and
manufactured by Defendant. The trucks are equipped with
forks. The forks are inserted into the two sides of a debris
box to raise and tilt the box so that the garbage empties
into the truck bed. The forks do not have any securing
devices to prevent a debris box from slipping off and falling
into the truck bed. Defendant's operator manual does not
include any instructions regarding how to retrieve a debris
box when it slips off of the forks and falls into the truck
September 29, 2017, a Green Team employee was on his garbage
collection route when a debris box slipped off of the forks
and fell into the truck bed. Green Team employees decided to
try to retrieve the debris box by connecting the box by chain
to a hydraulic lifting device which would then lift the box
out of the truck bed. The plan was to have Gutierrez attach
the chain to the debris box. Gutierrez used the ladder
installed by Defendant at the rear of the garbage truck to
climb on top of the truck. While Gutierrez was on the roof of
the truck, he slipped and fell twelve to fourteen feet onto
the ground and sustained severe injuries. Gutierrez filed an
application for workers' compensation benefits and has
received approximately $300, 000 in benefits. Pls.' Mem.
of P. & A. In Supp. of Mot. To Remand 2 (Dkt. No. 12-1).
initiated this suit in state court asserting claims against
Defendant for general negligence, products liability and loss
of consortium. Plaintiffs indicated on the form complaint
that Santa Clara County Superior Court was the “proper
court because [u]nder California Workers' Compensation
Law, and specifically California Labor Code Section 3852,
[P]laintiffs claim employer has the right to subrogation of
any Workers' Compensation benefits paid to Plaintiff
which arises under Labor Code 3852 and his employer Green
Team of San Jose, Inc.” Dkt. No. 1-2. Defendant filed
an answer in Santa Clara County Superior Court and a few days
later removed the action to this court pursuant to 28 U.S.C.
remand may be ordered either for lack of subject matter
jurisdiction or for any defect in the removal procedure. 28
U.S.C. § 1447(c). Where a motion for remand is filed,
the burden of proof is on the defendant to establish that
removal was proper. Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). Removal statutes are strictly
construed and doubts as to removability are resolved in favor
of remanding the case. Id.
Plaintiffs do not dispute that the parties are diverse and
the amount in controversy exceeds the jurisdiction minimum
under 28 U.S.C. § 1332. Rather, Plaintiffs contend that
this is a “nonremovable action” under 28 U.S.C.
§ 1445(c) because Plaintiffs' claims “aris[e]
under” California's worker compensation law. The
1445(c) provides that “[a] civil action in any State
court arising under the workmen's compensation laws of
such State may not be removed to any district court of the
United States.” 28 U.S.C. § 1445(c). If section
1445(c) applies, a case is not removable even if it presents
a federal question or there is diversity. Humphrey v.
Sequentia, Inc., 58 F.3d 1238, 1244 (8th Cir. 1995).
an action is one “arising under the workmen's
compensation laws” of a State under section 1445(c) is
governed by federal law. Humphrey, 58 F.3d at 1245.
Although neither Congress nor the Ninth Circuit has defined
“arising under” in the context of section
1445(c), “all courts to have addressed the issue agree
that ‘arising under' in §1445 has the same
meaning as it does in 28 U.S.C. § 1331.”
Snelling Emp't, LLC v. Cousins Packaging, Inc.,
No. 14-5018 RMW, 2015 WL 328402, at *1 (N.D. Cal. Jan. 23,
2015). In the context of § 1331, “arising
under” means that “it is apparent from the face
of the complaint either that (1) a federal law creates the
plaintiff's cause of action; or (2) if a state law
creates the cause of action, a federal law that creates a
cause of action is a necessary element of the plaintiff's
claim.” Virgin v. Cnty. of San Luis Obispo,
201 F.3d 1141, 1142-43 (9th Cir. 2000). “Importing that
definition to § 1445(c), a civil action ‘arises
under' a state's workers'-compensation law when
the worker's-compensation law creates the plaintiff's
cause of action or is a necessary element of the
claim.” Ramirez v. Saia Inc., No. 14-04590
ODW, 2014 WL 3928416, at *2 (C.D. Cal. Aug. 12, 2014).
contend that their claims “arise under”
California's workers' compensation law not because
their three claims for negligence, products liability and
loss of consortium “arise under” California's
workers' compensation law, but because California Labor
Code section 3852 provides Gutierrez's employer, Green
Team, a right to subrogation. California Labor Code section
3852 provides in relevant part that “[a]ny employer who
pays, or becomes obligated to pay compensation, or who pays,
or becomes obligated to ...