United States District Court, S.D. California
ORDER GRANTING PLAINTIFFS' MOTION TO REMAND THE
ACTION TO THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF
JEFFREY T. MILLER, UNITED STATES DISTRICT JUDGE
Ricardo Martinez and Allison Martinez
(“Plaintiffs”) move to remand this action to the
Superior Court of California for the County of San Diego.
(Doc. No. 12.) Defendants Ford Motor Company
(“Ford”) and Kearny Pearson Ford & Kia
(“Sunroad Auto”) oppose the motion. (Doc.
No. 17.) The motion has been briefed and the court finds it
suitable for submission without oral argument in accordance
with Civil Local Rule 7.1(d)(1). For the reasons stated
below, the motion is GRANTED.
their Complaint, Plaintiffs state the following facts. On or
about January 2, 2013, Plaintiffs purchased a 2013 Ford
Escape (“the vehicle”) from Sunroad Auto. (Doc.
No. 1-1 at 4.) Plaintiffs received written warranties on the
vehicle. (Id. at 5.) On or about January 13, 2016,
with 47, 268 miles on the odometer, Plaintiffs presented the
vehicle to Defendants' repair facility for various
issues. (Id. at 7.) From about February 26, 2016 to
January 27, 2018, Plaintiffs repeatedly took the vehicle in
for repairs, which eventually led an engine replacement.
(Id.) Problems with the vehicle persisted and in
March of 2019, Plaintiffs requested a buyback and/or
restitution from Ford, but Ford declined. (Id. at
April 29, 2019, Plaintiffs filed their Complaint in state
court for violations of the Song-Beverly Consumer Warranty
Act (i.e., California's Lemon Law), breach of the express
written warranties, breach of the implied warranty of
merchantability, and fraud by omission. (Doc. No. 1-1 at
8-15.) The only count brought against Sunroad Auto was for
breach of the implied warranty of merchantability.
(Id. at 12.) Ford was served with a copy of the
Complaint on May 1, 2019, and Sunroad Auto was served on May
2, 2019. (Doc. No. 1 at 2.) On May 31, 2019, Defendants filed
a Notice of Removal based on diversity jurisdiction.
(Id. at 1.) On July 2, 2019, Plaintiffs filed the
instant Motion to Remand. (Doc. No. 12.) Defendants filed a
Response in Opposition on September 5, 2019. (Doc. No. 17.)
Plaintiffs did not file a reply.
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
1989). An action in state court can generally be removed to
federal court when the case could have originally been
brought in federal court. 28 U.S.C. § 1441;
see Exxon Mobil Corp. v. Allapattah Services, Inc.,
545 U.S. 546, 563 (2005). The defendant bears the burden of
proving removal jurisdiction. Leite v. Crane Co.,
749 F.3d 1117, 1121-22 (9th Cir. 2014). Any doubt regarding
removal jurisdiction is construed against the defendant and
in favor of remanding the case to state court. Gaus v.
Miles, Inc. 980 F.2d 564, 566 (9th Cir. 1992);
Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
(9th Cir. 2009) (“[T]he court resolves all ambiguity in
favor of remand to state court.”).
cases not arising under federal law are removable to federal
court only if each plaintiff's citizenship is different
from each defendant's citizenship, and the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1);
Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373 (1978). A defendant may remove a civil action that
alleges claims against a non-diverse defendant where the
plaintiff has no basis for suing that defendant. McCabe
v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.
1987). Where a non-diverse defendant has been
“fraudulently joined” to an otherwise completely
diverse case, that non-diverse defendant's citizenship is
disregarded for diversity jurisdiction purposes. United
Computer Sys., Inc. v. AT&T Corp., 298 F.3d 756, 761
(9th Cir. 2002). There is a general presumption, however,
against fraudulent joinder. Hunter v. Philip Morris
USA, 582 F.3d 1039, 1046 (9th Cir. 2009). A defendant is
fraudulently joined when a “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.” McCabe, 811 F.2d at 1339); see
also Nasrawi v. Buck Consultants, LLC, 776 F.Supp.2d
1166, 1169-70 (E.D. Cal. 2011) (“[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.”). The removing defendant bears
the “heavy burden” of proving fraudulent joinder.
See GranCare, LLC v. Thrower, 889 F.3d 543, 548 (9th
Cir. 2018) (citing Hunter, 582 F.3d at 1046);
see also Hamilton Materials, Inc. v. Dow Chem.
Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)
(“Fraudulent joinder must be proven by clear and
parties dispute whether removal based on diversity
jurisdiction was proper. Defendants contend removal is proper
based on the court's diversity jurisdiction even though
Plaintiffs and Sunroad Auto are all California citizens.
(Doc. No. 1 at 1.) Defendants argue that Sunroad Auto's
citizenship can be disregarded because the sole cause of
action against Sunroad Auto, i.e. breach of the implied
warranty of merchantability, is barred by the applicable
four-year statute of limitations. (Id. at 6-7.)
Plaintiffs argue that the claim against Sunroad Auto is not
time-barred because the statute of limitations was tolled
under the delayed discovery rule, repair doctrine, and
Ford's fraudulent concealment of defects. (Doc. 12-1 at
13.) For the reasons stated below, removal was improper.
Delayed Discovery Rule
argue that the statute of limitations did not begin to run
until they could have reasonably discovered the breach, which
occurred in March of 2019, after Defendants failed to fix the
vehicle a reasonable number of times. (Doc. No. 12-1 at
14-18.) In support of their contention, Plaintiffs cite
Krieger v. Nick Alexander Imports, Inc., 234
Cal.App.3d 205 (Ct. App. 1991) and Mexia v. Rinker Boat
Co., 174 Cal.App.4th 1297 (2009). In opposition,
Defendants contend the statute of limitations began to run on
the date of delivery of the vehicle, regardless of the
Plaintiffs' knowledge of the breach. (Doc. No. 17 at 14.)
In support of their contention, Defendants cite Cardinal
Health 301, Inc. v. Tyco Elecs. Corp., 169 Cal.App.4th
116 (2008) and argue that Plaintiffs' reliance on
Krieger and Mexia is misplaced. (Doc. No.
17 at 14-17.) Defendants also argue that Plaintiffs were on
notice of the defects more than four years prior to filing
suit because of the numerous concerns raised by Plaintiffs
beginning in December of 2012. (Id. at 17-18.)
have reached different conclusions on the applicability of
the delayed discovery rule in cases involving both express
and implied warranties. See Cavale v. Ford Motor
Co., Case No. 18cv680 (LJO) BAM, 2018 WL 3811727, at *3
n.5 (E.D. Cal. Aug. 9, 2018) (listing cases). Furthermore, as
Plaintiffs point out, district courts have repeatedly
rejected the same or similar arguments made by Ford in
support of removal. See, e.g., Phillips
v. Ford Motor Co., Case No. 19cv1423 EJD, 2019 WL
5188259, at *3 (N.D. Cal. Oct. 15, 2019) (listing cases);
Klawiter v. Ford Motor Co., Case No. 19cv1889 WHO,
2019 WL 2484321, at *2 (N.D. Cal. June 14, 2019) (“Ford
makes the same arguments that several courts have rejected in
prior cases.”). Therefore, it is not obvious that there
is absolutely no possibility that the delayed discovery rule,
or any other of Plaintiffs' tolling theories, do not
apply to Plaintiffs' claim or that Plaintiffs could not
amend their Complaint to state a viable tolling theory.
See, e.g., Less v. Ford Motor Co., Case No. 18cv1992
MMA (AGS), 2018 WL 4444509, at *3 (S.D. Cal. Sept. 18, 2018)
(noting that the court must find there is “absolutely
no possibility” that any tolling doctrine applies and
it must be “obvious” that plaintiff cannot state
a claim against the dealership or amend the complaint to
allege a viable tolling theory). Both parties make persuasive
arguments supported by different authority. At best, the
grounds for removal are ambiguous, which is itself grounds
for remand. See Gaus, 980 F.2d at 566-67 (“All
doubts concerning the sufficiency of a cause of action
because of inartful, ambiguous or technically defective
pleading must be resolved in favor of remand.”).
Additionally, the question of law raised by the parties is
one best resolved by means other than an order on a motion to
remand. See Jimenez v. Ford Motor Co., Case No. CV
18cv3558 JFW (ASX), 2018 WL 2734848, at *2 (C.D. Cal. June 5,
2018) (“Ford's arguments that Plaintiff's claim
is barred by the statute of limitations is better raised in a
demurrer, motion to dismiss, or motion for summary judgment
rather than a notice of removal.”); Cavale,
2018 WL 3811727, at *3.