noting the 6 “longstanding, near-canonical rule that the burden on removal rests with the 7 removing defendant”
How later courts described this case
- noting the 6 “longstanding, near-canonical rule that the burden on removal rests with the 7 removing defendant”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
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11 SERVICE EMPLOYEES Case No. 5:20-cv-02054-JWH-KKx
INTERNATIONAL UNION—
12 UNITED HEALTHCARE
WORKERS WEST; ORDER GRANTING IN PART
13 VANESSA MONDRAGON; AND DENYING IN PART
GLADYS REYES; PLAINTIFFS’ MOTION TO
14 RAY VALDIVIA; and REMAND [ECF No. 16] AND
VANESSA CAMPOS VILLALOBOS, DENYING DEFENDANTS’
15 MOTIONS TO DISMISS [ECF
Plaintiffs, Nos. 17 & 18] AS MOOT
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v.
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HCA HEALTHCARE;
18 SAMUEL N. HAZEN, CEO of HCA
Healthcare;
19 RIVERSIDE HEALTHCARE
SYSTEM L.P. d/b/a RIVERSIDE
20 COMMUNITY HOSPITAL; and
JACKIE DeSOUZA-VAN
21 BLARICUM, CEO of Riverside
Community Hospital,
22
Defendants.
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1 Three motions are presently pending before the Court: (1) the motion of
2 Plaintiffs Service Employees International Union—United Healthcare Workers
3 West (“SEIU-UHW”), Vanessa Mondragon, Gladys Reyes, Ray Valdivia, and
4 Vanessa Campos Villalobos (collectively, “Plaintiffs”) to remand this action to
5 California State Court;1 (2) the motion of Defendants HCA Healthcare, Samuel
6 Hazen, and Jackie DeSouza-Van Blaricum to dismiss Plaintiffs’ Complaint
7 pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure
8 and to strike portions of Plaintiffs’ Complaint pursuant to Rule 12(f);2 and
9 (3) the motion of Defendant Riverside Healthcare System L.P. d/b/a Riverside
10 Community Hospital (“RCH”) to dismiss Plaintiffs’ Complaint pursuant to
11 Rules 12(b)(1) and 12(b)(6)3 (collectively, the “Motions”). The Court finds
12 these matters appropriate for resolution without a hearing. See
13 Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of
14 and in opposition to the Motions, the Court orders that (1) the Motion to
15 Remand is GRANTED in part and DENIED in part; and (2) Defendants’
16 respective Motions to Dismiss are DENIED as moot.
17 I. INTRODUCTION
18 On August 20, 2020, Plaintiff SEIU-UHW, on behalf of its members
19 (including Plaintiffs Vanessa Mondragon, Gladys Reyes, and Raymond (Ray)
20 Valdivia), and Plaintiff Vanessa Campos Villalobos filed their Complaint
21 commencing this action in California State Court.4 Plaintiffs assert five claims
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1 Pls.’ Mot. to Remand (the “Motion to Remand”) [ECF No. 16]. The
24 Court considered the following papers in connection with the Motion to
Remand: (1) Defs.’ Notice of Removal (including its attachments) (the
25 “NOR”) [ECF No. 1]; (2) Compl. [ECF No. 1-1]; (3) Defs.’ Opp’n to Mot. to
Remand (the “Opposition”) [ECF No. 24]; and (4) Pls.’ Reply in Supp. of Mot.
26 to Remand (the “Reply”) [ECF No. 25].
2 Defs.’ Joint Mot. to Dismiss & Mot. to Strike [ECF No. 17].
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3 Def. RCH’s Mot. to Dismiss [ECF No. 18].
1 for relief against Defendants: (1) Public Nuisance; (2) Unfair and Unlawful
2 Business Practices; (3) Negligence; (4) Negligent Infliction of Emotional
3 Distress; and (5) Declaratory Judgment.5 The first, second, and fifth claims for
4 relief are asserted on behalf of all Plaintiffs. The third and fourth claims for
5 relief are asserted individually by Plaintiff Campos Villalobos.
6 Plaintiffs generally allege that Defendants failed to adopt adequate
7 workplace health and safety measures in response to the ongoing COVID-19
8 pandemic, which placed RCH employees, including Mondragon, Reyes,
9 Valdivia, and Sally Lara (the late mother of Campos Villalobos), at an increased
10 risk of contracting COVID-19. This increased risk, according to Plaintiffs,
11 extended to all employees, patients, and visitors of RCH, as well as the members
12 of the broader community with whom these individuals came into contact, and
13 thus created an actionable public nuisance under California law. Campos
14 Villalobos alleges that her late mother, Sally Lara, who was employed by RCH,
15 was exposed to and contracted COVID-19 while at work, which ultimately
16 caused Lara’s death, due to Defendants’ negligence.6 Campos Villalobos
17 further alleges that Defendants’ negligence and her mother’s death caused
18 Campos Villalobos to suffer severe emotional distress.7
19 Defendants removed the action to this Court on October 1, 2020,
20 invoking federal question jurisdiction pursuant to 28 U.S.C. § 1331.8
21 Defendants contend that Plaintiffs’ first, second, and fifth claims for relief arise
22 from, or require the interpretation of the terms of, the Collective Bargaining
23 Agreement and a 2019 “Side Agreement” (jointly, the “CBA”) between the
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26 5 See generally Compl.
6 See id. at ¶¶ 17–19 & 93–100.
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7 See id. at ¶¶ 17–19 & 101–05.
1 parties (except for Campos Villalobos, who was not a party to the CBA).9 Thus,
2 according to Defendants, Plaintiffs’ first, second, and fifth claims for relief are
3 preempted by § 301 of the Labor Management Relations Act (the “LMRA”), 29
4 U.S.C. § 185.10
5 As a threshold matter, before reaching the merits of Defendants’
6 respective motions to dismiss, the Court must determine whether it has subject
7 matter jurisdiction over this action. Therefore, the Court will first address
8 Plaintiffs’ Motion to Remand.
9 II. LEGAL STANDARD
10 A. Removal Jurisdiction
11 Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey
12 possess only that power authorized by Constitution and statute.” Kokkonen v.
13 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In every federal case, the
14 basis for federal jurisdiction must appear affirmatively from the record. See
15 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). “The right of
16 removal is entirely a creature of statute and a suit commenced in a state court
17 must remain there until cause is shown for its transfer under some act of
18 Congress.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal
19 quotation marks omitted). Where Congress has acted to create a right of
20 removal, those statutes, unless otherwise stated, are strictly construed against
21 removal jurisdiction. See id. Unless otherwise expressly provided by Congress,
22 “any civil action brought in a State court of which the district courts of the
23 United States have original jurisdiction, may be removed by the defendant or the
24 defendants, to the district court.” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724
25 F.3d 1249, 1252 (9th Cir. 2013) (same) (internal quotation marks omitted).
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9 See id. at ¶ 19.
1 To remove an action to federal court under 28 U.S.C. § 1441(a), the
2 removing defendant “must demonstrate that original subject-matter jurisdiction
3 lies in the federal courts.” Syngenta, 537 U.S. at 33. In other words, the
4 removing defendant bears the burden of establishing that removal is proper. See
5 Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (noting the
6 “longstanding, near-canonical rule that the burden on removal rests with the
7 removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)
8 (“The strong presumption against removal jurisdiction means that the
9 defendant always has the burden of establishing that removal is proper.”
10 (internal quotation marks omitted)). Any doubts regarding the existence of
11 subject matter jurisdiction must be resolved in favor of remand. See id.
12 (“Federal jurisdiction must be rejected if there is any doubt as to the right of
13 removal in the first instance.”). “In determining the existence of removal
14 jurisdiction, based upon a federal question, the court must look to the complaint
15 as of the time the removal petition was filed. Jurisdiction is based on the
16 complaint as originally filed and not as amended.” O’Halloran v. Univ. of
17 Wash., 856 F.2d 1375, 1379 (9th Cir. 1988) (emphasis added).11
18 III. DISCUSSION
19 As noted above, Defendants removed the action to this Court pursuant to
20 28 U.S.C. § 1441, invoking federal-question jurisdiction pursuant to 28 U.S.C.
21 § 1331, on the ground that Plaintiffs’ claims arise under, or are preempted by,
22 § 301 of the LMRA. Plaintiffs contend that their state law claims are not
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24 11 Plaintiffs filed a First Amended Complaint (the “FAC”) [ECF No. 15] on
October 28, 2020, before filing the instant Motion to Remand. However, for the
25 purpose of ruling on Plaintiffs’ Motion to Remand, the Court looks to the
complaint as of the time that Defendants removed the action to this Court.
26 Consistent with this requirement, the court in O’Halloran held that the fact that
the plaintiff amended his complaint to include a federal claim after the removal
27 of the action was “of no significance with regard to removal jurisdiction.”
O’Halloran, 856 F.2d at 1379. In any event, here, Plaintiffs’ Amended
1 preempted by the LMRA, and, therefore, they seek the remand of this action for
2 lack of subject matter jurisdiction.
3 “The presence or absence of federal-question jurisdiction is governed by
4 the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists
5 only when a federal question is presented on the face of the plaintiff’s properly
6 pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
7 Under this rule, the plaintiff is the master of her claim, meaning that she “may
8 avoid federal jurisdiction by exclusive reliance on state law.” Id. As a general
9 rule, “a case may not be removed to federal court on the basis of a federal
10 defense, including the defense of pre-emption, even if the defense is anticipated
11 in the plaintiff’s complaint, and even if both parties concede that the federal
12 defense is the only question truly at issue.” Id. (emphasis in original).
13 There is, however, a corollary to the well-pleaded complaint rule known
14 as the “complete preemption” doctrine. Id. at 393. “On occasion,” the
15 Supreme Court has explained, “the pre-emptive force of a statute is so
16 ‘extraordinary’ that it ‘converts an ordinary state common law complaint into
17 one stating a federal claim for purposes of the well-pleaded complaint rule.’” Id.
18 (quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65 (1987)). In
19 such cases, any claim based upon the preempted state law is considered a federal
20 claim that “arises under federal law” at its inception. Id. Section 301 of the
21 LMRA is among those statutes with such preemptive force.
22 Section 301 of the LMRA provides as follows:
23 Suits for violation of contracts between an employer and a labor
24 organization representing employees in an industry affecting
25 commerce as defined in this chapter, or between any such labor
26 organizations, may be brought in any district court of the United
27 States having jurisdiction of the parties, without respect of the
1 amount in controversy or without regard to the citizenship of the
2 parties.
3 29 U.S.C. § 185(a). Section 301 of the LMRA has been held to preempt any
4 state claim “for violation of contracts between an employer and a labor
5 organization.” Franchise Tax Board of Cal. v. Construction Laborers Vacation
6 Trust for Southern Cal., 463 U.S. 1, 23 (1983) (quotations omitted).
7 To determine whether a claim arises from, or is preempted by, § 301 of
8 the LMRA, courts in the Ninth Circuit employ a two-step test. First, the court
9 must determine “whether the asserted cause of action involves a right conferred
10 upon an employee by virtue of state law, not by a CBA.” Burnside v. Kiewit
11 Pacific Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). If the answer is “no,” then
12 the claim is preempted by § 301 of the LMRA. Id. If the answer is “yes,” then
13 the court must determine whether the claim is “substantially dependent on
14 analysis of a collective-bargaining agreement.” Id. If the state law claim is
15 substantially dependent upon analysis of a CBA, then the claim is preempted by
16 § 301 of the LMRA; “if not, the claim can proceed under state law.” Id. at
17 1059–60.
18 Here, the parties agree that Plaintiffs’ claims do not involve a right
19 conferred upon Plaintiffs by the CBA.12 Therefore, the Court proceeds to the
20 second prong of the Burnside test to determine whether Plaintiffs’ claims are
21 “substantially dependent” upon interpretation and analysis of the CBA. See id.
22 Determining whether a claim is preempted by § 301 is not “a task that
23 always ‘lends itself to analytical precision.’” Id. at 1060 (quoting Cramer v.
24 Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001)). But a few guiding
25 principles have emerged. The first is that, in determining whether a particular
26 right arises by virtue of state law or is grounded in the CBA, the court must
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1 consider “the legal character of a claim, as ‘independent’ of rights under the
2 collective-bargaining agreement [and] not whether a grievance arising from
3 ‘precisely the same set of facts’ could be pursued.” Id. (quoting Livadas v.
4 Bradshaw, 512 U.S. 107, 121–24 (1994)) (citations and quotations omitted)
5 (emphasis in original). In this regard, the Supreme Court has made clear that
6 reliance on the CBA as part of a defense to what is plainly a state law claim is not
7 enough “to transform the action into one arising under federal law.”
8 Caterpillar, 482 U.S. at 399; see also Burnside, 491 F.3d at 1060.
9 The second guiding principle is that, in determining whether a claim is
10 “substantially dependent” upon interpretation and analysis of a CBA, the court
11 must decide whether resolution of the claim requires a “look to,” as opposed to
12 an interpretation of, the CBA. See Livadas, 512 U.S. at 125; Burnside, 491 F.3d
13 at 1060. Although this distinction is “not always clear,” Cramer, 255 F.3d at
14 691, the Supreme Court has held that a “look to” the CBA—for example, to
15 decide that none of its terms is in dispute or to determine the wage rates agreed
16 to under the CBA to compute a penalty—is not enough to warrant preemption.
17 See Livadas, 512 U.S. at 125. Ultimately, “when the meaning of contract terms
18 is not the subject of dispute, the bare fact that a [CBA] will be consulted in the
19 course of state-law litigation plainly does not require the claim to be
20 extinguished.” Id. at 124. “[A] hypothetical connection between the claim and
21 the terms of the CBA is not enough to preempt the claim.” Cramer, 255 F.3d at
22 691. A claim under state law is preempted only “if it is so inextricably
23 intertwined with the terms of a labor contract that its resolution will require
24 judicial interpretation of those terms.” Allis-Chambers Corp. v. Lueck, 471 U.S.
25 202, 211 (1985).
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1 Applying those principles here, Plaintiffs’ first claim for public nuisance is
2 the focus of the Court’s inquiry.13 Under California law, a nuisance is
3 “[a]nything which is injurious to health, or is indecent or offensive to the senses,
4 or an obstruction to the free use of property, so as to interfere with the
5 comfortable enjoyment of life or property, . . . .” Cal. Civ. Code § 3479. A
6 public nuisance “is one which affects at the same time an entire community or
7 neighborhood, or any considerable number of persons, although the extent of the
8 annoyance or damage inflicted upon individuals may be unequal.” Id. § 3480.
9 A claim for public nuisance has seven factual elements: (1) the defendant
10 created a condition or permitted a condition to exist that was, inter alia, harmful
11 to health; (2) the condition affected a substantial number of people; (3) an
12 ordinary person would be reasonably annoyed or disturbed by the condition;
13 (4) the seriousness of the harm outweighs the social utility of the defendant’s
14 conduct; (5) the plaintiff did not consent to the defendant’s conduct; (6) the
15 plaintiff suffered a special injury, i.e., different from the general public; and
16 (7) the defendant’s conduct was a substantial factor in causing the plaintiff’s
17 harm. Cal. Civ. Jury Instr. (CACI) No. 2020 (2021).
18 According to Defendants, because Plaintiffs must prove that Defendants’
19 conduct was unreasonable and that Plaintiffs did not consent to Defendants’
20 conduct, Plaintiffs’ claim for public nuisance will necessarily require analysis of
21 what was agreed to under the CBA.14 Based upon Plaintiffs’ allegations that
22 Defendants’ unreasonable conduct includes, for example, instructing employees
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24 13 Plaintiffs’ UCL claim and claim for declaratory relief are derivative of
Plaintiffs’ public nuisance claim, and, therefore, they are preempted to the same
25 extent, if at all, as the public nuisance claim. See Opposition 18:16–24.
Similarly, the Court must first determine that it has federal question jurisdiction
26 under § 301 of the LMRA before it can exercise supplemental jurisdiction over
Plaintiff Campos Villalobos’ claims for negligence and negligent infliction of
27 emotional distress, which are purely state law claims that do not involve the
CBA to any extent.
1 with COVID-19 symptoms to come to work, Defendants contend that the
2 determination of whether such conduct was reasonable requires analysis of the
3 scope of Defendants’ right to set rules for work schedules under various sections
4 of the CBA.15 Defendants make similar arguments with respect to Plaintiffs’
5 allegations regarding Defendants’ alleged failure to warn of the risk of possible
6 exposure to COVID-19,16 failure to provide adequate protective equipment,17
7 failure to provide information regarding COVID-19 safety protocols,18 and
8 Defendants’ alleged unreasonable instruction regarding extra sanitization
9 precautions in relation to blood draws.19
10 There appears to be no authority addressing whether a state law public
11 nuisance claim asserted by parties who are subject to a CBA is preempted by
12 § 301 of the LMRA. However, the legal character of a public nuisance claim
13 suggests that it is not. Whether a given interference is unreasonable is judged
14 under an objective standard: “the question is not whether the particular plaintiff
15 found the invasion unreasonable, but ‘whether reasonable persons generally,
16 looking at the whole situation impartially and objectively, would consider it
17 unreasonable.’” San Diego Gas & Electric Co. v. Superior Ct., 13 Cal. 4th 893,
18 938 (1996) (quoting Restatement (Second) of Torts § 826, cmt. c (Am. L. Inst.
19 1979)). Indeed, as Plaintiffs point out, the legal right implicated by a public
20 nuisance claim is the right of the public to be free from unreasonable
21 interference with health and safety. See Venuto v. Owens-Corning Fiberglass
22 Corp., 22 Cal. App. 3d 116, 123 (1971). That right arises under state law—not
23 from the terms of a CBA. Nor is it substantially dependent upon analysis of the
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25 15 Id. at 14:10–15:3.
26 16 Id. at 15:4–22.
17 Id. at 15:23–16:8.
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18 Id. at 16:9–22.
1 CBA in this case. Consistent with this principle, the Ninth Circuit has
2 recognized that “protecting worker safety,” among other worker rights,
3 “remains well within the traditional police power of the states.” Alaska Airlines,
4 Inc. v. Schurke, 898 F.3d 904, 919 (9th Cir. 2018). This well-established rule
5 obviates any need for the Court to interpret the scope of the CBA.20
6 Plaintiffs plainly allege that Defendants’ conduct, regardless of the CBA,
7 objectively constitutes an unreasonable interference in public health and safety.
8 Defendants raise the terms of the CBA as a defense to Plaintiffs’ allegations
9 regarding Defendants’ alleged unreasonable conduct. However, “the presence
10 of a federal question, even a § 301 question, in a defensive argument does not
11 overcome the paramount policies embodied in the well-pleaded complaint rule.”
12 Caterpillar, 482 U.S. at 398. This is true even when “a defense to a state claim
13 is based on the terms of a collective-bargaining agreement” and, thus, will
14 require the state court “to interpret that agreement to decide whether the state
15 claim survives.” Id. Ultimately, “the plaintiff is the master of the complaint,”
16 and, for federal jurisdiction to be proper, “a federal question must appear on the
17 face of the complaint.” Id. at 398–99. Indeed, “the plaintiff may, by eschewing
18 claims based on federal law, choose to have the cause heard in state court,” and
19 a defendant cannot “merely by injecting a federal question into an action that
20 asserts what is plainly a state-law claim, transform the action into one arising
21 under federal law, thereby selecting the forum in which the claim shall be
22 litigated.” Id. Otherwise, the Supreme Court has explained, “the plaintiff
23 would be master of nothing.” Id.
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20 The parties each cite § 33.4 of the CBA, and Defendants purport to
26 dispute the scope of this section and whether it applies to Plaintiffs’ claims here.
However, the Court need not decide this issue because Plaintiffs do not invoke
27 § 33.4 as the basis for their public nuisance claim. Plaintiffs’ right, and the right
of the general public, to be free from unreasonable interference in their health
1 Here, no federal question appears on the face of the Complaint, and the
2 Court is not persuaded that Plaintiffs’ claim for public nuisance is so
3 “inextricably intertwined” with the terms of the CBA that the claim is
4 preempted by § 301 of the LMRA. Accordingly, the Court finds that there is no
5 federal question jurisdiction over this action.
6 A. Plaintiffs’ Request for Attorneys’ Fees
7 Plaintiffs request attorneys’ fees because, in their view, Defendants’
8 removal of the action to this Court was unreasonable. As a general rule,
9 “[a]bsent unusual circumstances, courts may award attorney’s fees under [28
10 U.S.C.] § 1447(c) only where the removing party lacked an objectively
11 reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546
12 U.S. 132, 140–41 (2005). As confident as Plaintiffs may be in their arguments, in
13 view of the relatively novel issues presented in this case, the Court cannot find
14 that Defendants’ removal of the action was unreasonable. There are no
15 authorities on the issue of whether a public nuisance claim is preempted by § 301
16 of the LMRA, and, even though the Court makes no finding regarding the scope
17 of § 33.4 of the CBA, the Court does not consider that section to be so clear as to
18 make Defendants’ decision to remove the action objectively unreasonable.
19 Thus, Defendants had a reasonable basis for removing this case to federal court.
20 IV. CONCLUSION
21 Based upon the foregoing, the Court hereby ORDERS as follows:
22 1. Plaintiffs’ Motion to Remand is GRANTED in part (with respect
23 to remand) and DENIED in part (with respect to Plaintiffs’ request for an
24 award of attorneys’ fees).
25 2. This case is REMANDED to Riverside County Superior Court.
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1 3. Defendants’ respective Motions to Dismiss are DENIED as moot.
2 IT IS SO ORDERED.
MU
4|| Dated: June 7, 2021 :
5 SNPTED: or RES DISTRICT JUDGE
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