Opinion

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 THE UNITED COUNCIL OF HUMAN Case No. 25-cv-09819-HSG

SERVICES, et al.,

8 ORDER GRANTING MOTION TO

Plaintiffs, REMAND AND TERMINATING

9 MOTION TO DISMISS

v.

10 Re: Dkt. Nos. 9, 31

FELTON INSTITUTE, et al.,

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Defendants.

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13 Pending before the Court are Plaintiffs’ motion to remand, Dkt. No. 9, and Defendant City

14 and County of San Francisco’s motion to dismiss, Dkt. No. 31. The Court finds these matters

15 appropriate for disposition without oral argument and the matters are deemed submitted. See Civil

16 L.R. 7-1(b). For the reasons discussed below, the Court GRANTS the motion to remand and

17 TERMINATES AS MOOT the motion to dismiss.

18 I. BACKGROUND

19 Plaintiffs The United Council of Human Services (“UCHS”) and its former-CEO

20 Gwendolyn Westbrook filed a complaint in San Francisco Superior Court in July 2025 against

21 twelve individual and corporate defendants. See Dkt. No. 2, Ex. A. Plaintiffs bring ten state law

22 claims and a 42 U.S.C. § 1983 claim against Defendants. See id. ¶¶ 67–212. Defendant City and

23 County of San Francisco (“San Francisco”) was served on October 16, 2025, and removed to

24 federal court on November 14, 2025. Dkt. No. 1.

25 II. DISCUSSION

26 Plaintiffs seek remand because Defendant San Francisco “failed to secure the participation

27 of the multiple Defendants who had already been properly served” at the time of removal on

1 Public Health Foundation Enterprises, Inc. aka Heluna Health (“Heluna Health”), Felton Institute,

2 Bayview Hunters Point Foundation for Community Improvement (“Bayview”), James Boquin,

3 Department of Homelessness and Supportive Housing (“HSH”), San Francisco, and Al Gilbert—

4 had been served by October 16, 2025. Id. at 3; Dkt. No. 9-2 ¶¶ 4–10. It is undisputed that

5 Defendant San Francisco knew that Al Gilbert and Heluna Health had been served when it filed its

6 notice of removal. Dkt. No. 1 at 3 (“The City anticipates that it will cure joinder of Al Gilbert and

7 Heluna Health.”). The parties dispute when Defendant San Francisco knew or could have known

8 that the other Defendants had been served. Compare Dkt. No. 9-1 at 9, with Dkt. No. 20 at 2.

9 “When a civil action is removed solely under section 1441(a), all defendants who have

10 been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C.

11 § 1446(b)(2)(A). However, “[i]f this is not true when the notice of removal is filed, the district

12 court may allow the removing defendants to cure the defect by obtaining joinder of all defendants

13 prior to the entry of judgment.” Destfino v. Reiswig, 630 F.3d 952, 956–57 (9th Cir. 2011); see

14 also Soliman v. Philip Morris Inc., 311 F.3d 966, 970 (9th Cir. 2002) (“A procedural defect

15 existing at the time of removal but cured prior to entry of judgment does not warrant reversal and

16 remand of the matter to state court.” (quotation omitted)). Here, while it is undisputed that some

17 of the served Defendants had not consented by November 14, 2025, all served Defendants had

18 consented by no later than December 9, 2025. See Dkt. No. 1 (noting that HSH is not an

19 independent entity from removing Defendant San Francisco); Dkt. No. 11 (Bayview, James

20 Bouquin); Dkt. No. 17 (Heluna Health, Peter Dale); Dkt. No. 18, Ex. D (Al Gilbert, Felton

21 Institute); Dkt. No. 22 (dismissing YMCA Bayview); Dkt. No. 23 (dismissing Gina Farmer); Dkt.

22 No. 24 (dismissing YMCA of San Francisco).1

23 Plaintiffs argue that Defendant San Francisco was required to cure this defect “prior to

24 expiration of Removing Defendant’s 30-day window” on November 17, 2025, which did not

25 happen here. Dkt. No. 9-1 at 7. Plaintiffs note that older Ninth Circuit precedent apparently

26 required defects in a removal notice to be cured “within the thirty-day statutory period permitted

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1 for joinder.” Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999).

2 However, any such firm deadline seemingly contradicts the Ninth Circuit’s more recent holding in

3 Destfino.

4 The Court acknowledges that the removal statute has been significantly amended since the

5 Ninth Circuit’s decisions in Prize Frize and Destfino, which has caused some courts to question

6 those (and similar) holdings. Most notably, in Taylor v. Medtronic, Inc., 15 F.4th 148 (2d Cir.

7 2021), the Second Circuit recently considered how long defendants have to cure consent defects.

8 The Second Circuit observed that most cases that permitted consent defects to be cured before

9 judgment “predated Congress’s codification of the rule of unanimity [for consent] in 2011.” Id. at

10 152. “When the rule of unanimity was a judge-made rule, courts could allow judge-made

11 exceptions to that rule. But now [courts] are limited to interpreting a clear statutory command

12 from Congress that all defendants must consent to removal within thirty days of service.” Id. The

13 Second Circuit concluded that joinder was required within the 30-day deadline for removal under

14 the plain language of the statute. Id. at 153. Particularly given the Ninth Circuit’s presumption in

15 favor of remand, Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009), several courts

16 in this circuit have adopted similar reasoning and imposed the same requirement. See, e.g.,

17 Palmeira v. CIT Bank, N.A., No. CV 17-00275 ACK-RLP, 2017 WL 4797515, at *4–*6 (D. Haw.

18 Oct. 24, 2017); Lopez v. Michael Weinig, Inc., No. CV 20-6012 PA (JEMX), 2020 WL 4192260,

19 at *2–*4 (C.D. Cal. July 17, 2020). Under this approach, Defendants did not cure the consent

20 defect in time.

21 While this reasoning is compelling, Destfino is the Ninth Circuit’s most recent binding

22 authority on the issue, and at least some courts have continued to apply it. See Conroy v. Ridge

23 Tool Co., No. 4:20-CV-05882-YGR, 2020 WL 8641963, at *4 (N.D. Cal. Nov. 18, 2020). Even

24 assuming Destfino controls, however, its rule is discretionary: “the district court may allow the

25 removing defendants to cure the defect by obtaining [subsequent] joinder.” 630 F.3d at 957

26 (emphasis added).

27 Assuming it has such discretion, the Court would decline to excuse Defendant’s failure to

1 knew that Defendants Gilbert and Heluna Health had been served when it filed its notice of

2 removal on November 14. See Dkt. No. 1 at 3. But there is no evidence that Defendant San

3 Francisco ever tried to get their consent until almost a month later, a few weeks after Plaintiffs

4 filed their motion to remand. See Dkt. No. 17; Dkt. No. 18, Ex. D at 71.

5 Second, several courts have observed that the precedent underlying the Ninth Circuit’s

6 decision in Destfino was concerned with cases that had been “fully adjudicated through

7 judgment,” where “the tax on both court systems and the partie[s] weigh in favor of excusing the

8 defect rather than reversing a judgment and remanding the case to start anew in state court.”

9 Sotelo v. Browning-Ferris Indus. of Cal., Inc., No. 2:20-CV-06927-SB-PVC, 2020 WL 7042816,

10 at *4 (C.D. Cal. Nov. 30, 2020) (quotation omitted); see Parrino v. FHP, Inc., 146 F.3d 699, 703

11 (9th Cir. 1998), as amended (July 28, 1998) (noting that “a procedural defect existing at the time

12 of removal but cured prior to entry of judgment does not warrant reversal and remand of the

13 matter to state court” and citing concerns about the costs of wiping out an adjudication post-

14 judgment). Those concerns are not implicated here at this early stage. As a result, the Court

15 GRANTS Plaintiffs’ motion. Cf. Dominguez v. Werner Enters., Inc., No. 5:25-CV-02401-SPG-E,

16 2025 WL 3493892, at *3 (C.D. Cal. Dec. 3, 2025) (taking this same approach after considering the

17 Second Circuit’s opinion in Taylor).2

18 III. CONCLUSION

19 The Court GRANTS Plaintiffs’ motion to remand, Dkt. No. 9, and TERMINATES AS

20 MOOT Defendant San Francisco’s motion to dismiss, Dkt. No. 31. The Clerk is directed to

21 remand this case to the Superior Court of California for the County of San Francisco and close the

22 file.3

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2 Remanding in this uncertain posture is also more consistent with the Ninth Circuit’s “strong

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presumption” against removal jurisdiction, which requires the Court to remand “if there is any

doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th

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Cir. 1992).

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3 The Court DENIES Plaintiffs’ request for attorneys’ fees, Dkt. No. 9-1 at 9. Defendant San

Francisco had a clear basis for removal in light of the Court’s obvious federal question

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jurisdiction, and the Court cannot say it was objectively unreasonable for Defendant San Francisco

1 IT IS SO ORDERED.

2 |} Dated: 5/5/2026 | | |

HAYWOOD S. GILLIAM, JR.

4 United States District Judge

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28 circumstances, attorney’s fees should not be awarded when the removing party has an objectively

reasonable basis for removal.”).