United States District Court, C.D. California
Julia Liepmann, et al.
Camden Co., et al.
Present: Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
IN CHAMBERS - ORDER RE PLAINTIFFS' MOTION TO REMAND
August November 8, 2018, Plaintiffs Julia and Peter Liepmann
filed a Complaint in Los Angeles County Superior Court
against Camden Properties, Inc. (“Camden”),
Bernards Bros., Inc. and 100 Doe Defendants asserting claims
of negligence and loss of consortium arising from a July 2018
slip-and-fall at premises owned by Camden. Notice of Removal,
Ex. A (“Complaint”) at ¶¶ 1-8 [Doc. #
1-1]. According to Plaintiffs, Defendants negligently failed
to keep the premises safe and to warn them of the slippery
surface on which Julia fell and injured herself. Id.
at ¶ 5. On November 26, 2018, Plaintiffs served a
Statement of Damages on Defendants identifying $2, 750, 000
in damages sought. Notice of Removal at ¶ 18 [Doc. # 1].
17, 2019, Plaintiffs filed an amendment to their Complaint
identifying former Camden employee Pooria Daryabeygi as Doe
Defendant 1. Id. Removal at ¶ 7. On August 2,
2019, Plaintiffs dismissed Bernards Bros., Inc. Id.
at ¶ 8.
August 23, 2019, Defendant Camden removed the action,
alleging that this Court has diversity jurisdiction pursuant
to 28 U.S.C. section 1332 because Plaintiffs are California
citizens, Camden is citizen of Texas and Delaware, and the
amount in controversy exceeds $75, 000. Id. at
¶¶ 9-14. On September 23, 2019, Plaintiffs filed a
Motion to Remand (“MTR”) based on the theory that
Defendant Daryabeygi, a California citizen, destroys
diversity jurisdiction. [Doc. # 10.] The MTR is fully
briefed. [Doc. ## 11 (“Opp.”), 13
(“Reply”).]. Having considered the parties'
written submissions, the Court GRANTS the MTR.
jurisdiction under 28 U.S.C. section 1332 requires that the
parties to a suit be of diverse citizenship. Diaz v.
Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d
1223, 1234 (9th Cir. 2008) (citing Strawbridge v.
Curtiss, 7 U.S. 267, 267 (1806)) (“Diversity
jurisdiction requires complete diversity between the
parties-each defendant must be a citizen of a different state
from each plaintiff.”). There is a “strong
presumption against removal jurisdiction, ” and courts
must reject it “if there is any doubt as to the right
of removal in the first instance.” Geographic
Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka,
599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per
curiam)) (internal quotation marks omitted); Luther
v. Countrywide Home Loans Servicing LP, 533 F.3d 1031,
1034 (9th Cir. 2008) (any “doubt is resolved against
removability”). The party “seeking removal has
the burden to establish that removal is proper” and the
“burden of establishing federal subject matter
jurisdiction.” Id.; Marin Gen. Hosp. v.
Modesto & Empire Traction Co., 581 F.3d 941, 944
(9th Cir. 2009) (citing Toumajian v. Frailey, 135
F.3d 648, 652 (9th Cir. 1998)).
joined defendants do not defeat removal on diversity grounds.
Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th
Cir. 1998). A non-diverse defendant is fraudulently joined,
“and the defendant's presence in the lawsuit is
ignored for purposes of determining diversity, ‘[i]f
the plaintiff fails to state a cause of action against a
resident defendant, and the failure is obvious according to
the settled rules of the state.'” Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
2001) (quoting McCabe v. General Foods Corp., 811
F.2d 1336, 1339 (9th Cir. 1987)).
contesting removal, a plaintiff is limited to the allegations
stated in its complaint. See Ritchey, 139 F.3d at
1318 (To determine whether joinder of a defendant is
fraudulent, district courts must “look only to a
plaintiff's pleadings to determine removability”
and “will determine the ‘existence of federal
jurisdiction . . . solely by an examination of the
plaintiff's case.”) (citations omitted). When
opposing remand, however, a defendant may introduce evidence
beyond the pleadings to establish fraudulent joinder.
Id. A defendant opposing remand must “show
that there is no possibility that the plaintiff could prevail
on any cause of action it brought against the non-diverse
defendant. Remand must be granted unless the defendant shows
that the plaintiff would not be afforded leave to amend his
complaint to cure the purported deficiency.”
Padilla v. AT&T Corp., 697 F.Supp.2d 1156, 1159
(C.D. Cal. 2009) (internal citations omitted); see also
Rangel v. Bridgestone Retail Operations, LLC, 200
F.Supp.3d 1024, 1033 (C.D. Cal. 2016).
argue that the Court lacks subject matter jurisdiction under
28 U.S.C. section 1332 because Plaintiffs and Daryabeygi are
not completely diverse. Camden responds that the Court should
disregard Daryabeygi's citizenship because Plaintiffs
fraudulently joined him for the sole purpose of destroying
diversity. In opposition to remand, Camden argues that: (1)
Plaintiffs acted in bad faith by belatedly naming Daryabeygi
in order to run out Camden's deadline for removal based
on diversity jurisdiction; (2) the Complaint does not state a
colorable claim against Daryabeygi; and (3) Daryabeygi was
not properly served. Opp. at 4.
matter the reason behind Plaintiffs' delay in adding
Daryabeygi, Plaintiffs' intentions do not factor into the
fraudulent joinder analysis. See Albi v. Street
Publ'ns, 140 F.2d 310, 312 (9th Cir. 1944)
(“[I]t is universally thought that the motive for
joining such a defendant is immaterial. It is only where the
plaintiff has not, in fact, a cause of action against the
resident defendant, and has no reasonable ground for
supposing he has, and yet joins him in order to evade the
jurisdiction of the federal court, that the joinder can be
said to be fraudulent, entitling the real defendant to a
removal.”); Cofer v. Parker-Hannifin Corp.,
194 F.Supp.3d 1014, 1022 (C.D. Cal. 2016) (“The term
‘fraudulent joinder' . . . does not connote any
intent to deceive on the part of plaintiffs or their
counsel.”). Plaintiffs' motive for the joinder of
Daryabeygi therefore is irrelevant. See Opp. at
unavailing are Camden's arguments that Plaintiffs'
Complaint “fails to state a cause of action against a
resident defendant, and the failure is obvious according to
the settled rules of the state.” Opp. at 8 (quoting
Morris v. Princess Cruises, Inc., 236 F.3d 1061,
1067 (9th Cir. 2001)). First, Camden is correct that an
employer like Camden can be vicariously liable for the
conduct of an employee acting within the scope of his
employment, but Camden cites no authority for the proposition
that vicarious liability immunizes employees from liability
for that conduct. To the contrary, long-settled California
law provides that “[i]f a tortious act has been
committed by an agent acting under authority of his
principal, the fact that the principal thus becomes liable
does not of course exonerate the agent from liability.”
Perkins v. Blauth, 127 P. 50, 52 (Cal. 1912);
see also PMC, Inc. v. Kadisha, 78 Cal.App.4th 1368,
1381 (2000) (“[A]n agent is liable for her or his own
acts, regardless whether the principal is also
liable.”). Second, Camden refers only to California
model jury instructions regarding premises liability to argue
that Daryabeygi cannot be held liable as an individual who
owns, leases, controls, or maintains a premise. Opp. at 9.
Under California law, however, the elements for
Plaintiffs' negligence claim are: “a legal duty of
care, breach of that duty, and proximate cause resulting in
injury.” Kesner v. Superior Court, 1 Cal. 5th
1132, 1158 (2016). Plaintiffs allege that all Defendants,
including Doe Defendants, breached their duty to keep the
floor safe or warn of the hazard that injured Plaintiffs
after having sufficient notice of its existence. See
Compl. at ¶ 5. On its face, therefore, the Complaint
contains sufficient facts to support a claim for negligence
against Daryabeygi. Camden has failed to carry its burden to
establish that Plaintiffs' inability to state a claim
against Daryabeygi is “obvious according to the
settled” vicarious liability “rules of the
state.” See McCabe, 811 F.2d at 1339.
Camden's removal was improper once Daryabeygi, a
non-diverse party, was named as a Defendant, regardless of
whether Daryabeygi was served before removal. See Pullman
Co. v. Jenkins, 305 U.S. 534, 541 (1939) (“[T]he
fact that the resident defendant has not been served with
process does not justify removal by the non-resident
defendant. . . . there is no diversity of citizenship, and
the controversy being a nonseparable one, the non-resident
defendant should not be permitted to seize an opportunity to
remove the cause before service upon ...