Ana Evelin Perez Pineda v. Vie De France Yamazaki, Inc.

Case 2:22-cv-02492-AB-PVC Document 53 Filed 08/09/22 Page 1 of 7 Page ID #:491

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.: 2:22-cv-02491-AB (PVCx); Date: August 9, 2022

2:22-cv-02492-AB (PVCx)

Natalie Guillen v. Vie De France Yamazaki, Inc. et al.; Ana Evelin Perez

Title:

Pineda et al. v. Vie De France Yamazaki, Inc. et al.

Present: The Honorable ANDRÉ BIROTTE JR., United States District Judge

Carla Badirian N/A

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Appearing None Appearing

Proceedings: [In Chambers] ORDER GRANTING MOTIONS TO REMAND

AND REMANDING TWO ACTIONS TO STATE COURT

Before the Court are two motions (the “Motions”), involving some of the same

defendants and turning on some of the same issues. Moreover, large portions of the

parties’ papers are identical. For these reasons, the Court addresses both motions

by way of a single order.

The first motion is Plaintiff Natalie Guillen’s (“Guillen”) Motion to Remand

Action to State Court (“Guillen Mot.”), (22-02491, Dkt. No. 13), and the other is

the Motion to Remand Action to State Court (“Pineda Mot.”), (22-02492, Dkt. No.

15), filed by Plaintiffs Ana Evelin Perez Pineda (“Pineda”), Hobie Perez, and Jose

Osvalldo Perez. Defendant Vie De France Yamazaki, Inc. (“Yamazaki, Inc.”) filed

an Opposition to the Guillen Motion (“Guillen Opp’n”), (22-02491, Dkt. No. 26),

and Guillen filed a Reply, (22-02491, Dkt. No. 32). Yamazaki, Inc. also filed an

Opposition to the Pineda Motion (“Pineda Opp’n”), (22-02492, Dkt. No. 31), and

Pineda filed a Reply, (22-02492, Dkt. No. 37). The Court deemed these matters fit

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for decision without oral argument and therefore took them under submission on

July 5, 2022. (22-02491, Dkt. No. 40; 22-02492, Dkt. No. 39).

For the following reasons, the Court now GRANTS the Motions and REMANDS

both actions to state court.

I. BACKGROUND

These actions involve some similar factual allegations. In both, an employee of Vie

de France Yamazaki’s plant in Vernon, California contracted COVID-19 after the

plant manager, Raymond Rodriguez (“Rodriguez”), denied requests for disability

accommodation and held several large, in-person meetings where social distancing

was not possible. (Guillen Mot. at 7–8; Pineda Mot. at 6–7). Moreover, these

employees allegedly have experienced and continue to experience long-term

symptoms of COVID-19. (Guillen Mot. at 6; Pineda Mot. at 5). Though there are

differences in some of the other factual allegations, the Court can resolve the

instant Motions without reference to those allegations.

Both actions were originally filed by the plaintiffs in Los Angeles Superior Court

and were removed to this Court by Yamazaki, Inc., on the basis of diversity

jurisdiction (22-02491, Dkt. No. 1; 22-02492, Dkt. No. 1). About a month after

removal, Guillen and Pineda filed the instant Motions, arguing, in part, that these

actions should be remanded because Rodriguez is an in-forum defendant whose

presence in these actions destroys complete diversity.

II. LEGAL STANDARD

A defendant may remove a civil action filed in state court to federal district court

when the federal court has original jurisdiction over the action. 28 U.S.C. §

1441(a). “A suit may be removed to federal court under 28 U.S.C. § 1441(a) only

if it could have been brought there originally.” Sullivan v. First Affiliated Sec., Inc.,

813 F.2d 1368, 1371 (9th Cir. 1987).

“The burden of establishing federal subject matter jurisdiction falls on the party

invoking removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581

F.3d 941, 944 (9th Cir. 2009). “Because of the Congressional purpose to restrict

the jurisdiction of the federal courts on removal,” statutes conferring jurisdiction

are “strictly construed and federal jurisdiction must be rejected if there is any doubt

as to the right of removal in the first instance.” Duncan v. Stuetzle, 76 F.3d 1480,

1485 (9th Cir. 1996) (citations and quotations omitted).

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Under the diversity statute, 28 U.S.C. § 1332, a federal district court has original

jurisdiction when the parties are completely diverse and the amount in controversy

exceeds $75,000. See 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 1441(a) and (b), a

defendant may remove an action from state court to federal court if the diversity

and amount in controversy requirements are satisfied. Under 28 U.S.C. §

1441(b)(2), “[a] civil action otherwise removable solely on the basis of the

jurisdiction under section 1332(a) of this title may not be removed if any of the

parties in interest properly joined and served as defendants is a citizen of the State

in which such action is brought.”

III. DISCUSSION

a. Local Rule 7-3

In its papers, Yamazaki, Inc. argues that the Motions should be denied because of

Plaintiff’s failure to comply with Local Rule 7-3. (Guillen Opp’n at 7–8; Pineda

Opp’n at 7–8). According to L.R. 7-3, “counsel contemplating the filing of any

motion shall first contact opposing counsel to discuss thoroughly, preferably in

person, the substance of the contemplated motion and any potential resolution.”

C.D. Cal. L.R. 7-3. If the parties determine that a motion and hearing are

necessary, counsel for the moving party is to indicate, in its papers, the date on

which the requisite conference of counsel took place. See id. A district court has

discretion to deny a motion that fails to comply with the Local Rules. Christian v.

Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002) (explaining a “district court has

considerable latitude in managing the parties' motion practice and enforcing local

rules that place parameters on briefing.”)

Yamazaki, Inc. is correct to note that counsel for the plaintiffs in these cases did

not comply with L.R. 7-3. However, before Yamazaki, Inc. opposed the Motions,

counsel for the plaintiffs filed declarations on both dockets, acknowledging this

failure. (22-02491, Dkt. No. 16; 22-02492, Dkt. No. 21). As this Court has

previously held, failure to comply with L.R. 7-3 is sufficient cause to deny these

Motions. See Plotkin v. Swift Transportation Company, No. CV 21-05872, 2021

WL 4197337, at *2 (C.D. Cal. Sept. 15, 2021). Nevertheless, given counsel’s

acknowledgment, the Court elects to reach the merits of these Motions.

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b. Snap Removal

In its Notices of Removal (“Notices”), Yamazaki, Inc. claimed that the Court had

diversity jurisdiction over the actions under 28 U.S.C. §1332(a) and that removal

was proper under 28 U.S.C. §1441(a). (22-02491, Dkt. No. 1, ¶ 13; 22-02492, Dkt.

No. 1, ¶ 13). 28 U.S.C. §1441(a) states that a civil action brought in a state court

may be removed by a defendant to a federal court if that federal court has original

jurisdiction over the action. Moreover, 28 U.S.C. §1332(a) states that federal

district courts generally have original jurisdiction over civil actions between

citizens of different states, in which the amount-in-controvery exceeds $75,000.

In its Notices, Yamazaki, Inc. acknowledged that Rodriguez, one of the defendants

in this case, is “presumptively a citizen of California.” (22-02491, Dkt. No. 1, ¶ 20;

22-02492, Dkt. No. 1, ¶ 20). Even though the plaintiffs in these actions are also

citizens of California, Yamazaki, Inc. argued that it was still appropriate to regard

these actions as occurring “between citizens of different states,” based on its

interpretation of 28 U.S.C. §1441(b)(2). (22-02491, Dkt. No. 1, ¶¶ 23–27; 22-

02492, Dkt. No. 1, ¶¶ 23–27).

28 U.S.C. §1441(b)(2) states that “[a] civil action otherwise removable solely on

the basis of the jurisdiction under [28 U.S.C. §1332(a)] may not be removed if any

of the parties in interest properly joined and served as defendants is a citizen of the

State in which such action is brought.” Since Rodriguez had not yet been served at

the time of removal, Yamazaki, Inc. argued that there was complete diversity in the

case at the time of removal and that removal was therefore proper. (22-02491, Dkt.

No. 1, ¶¶ 23–27; 22-02492, Dkt. No. 1, ¶¶ 23–27).1

The Court agrees. Yamazaki, Inc.’s “snap removal” of this case (i.e., its removal of

the case before any in-forum defendants had been served) was proper, given the

language of 28 U.S.C. §1441(b)(2). This Court has previously acknowledged that

removal is proper in such circumstances, since “neither the Supreme Court nor the

Ninth Circuit has addressed [the] issue of pre-service removal,” and since “the

plain language interpretation of [28 U.S.C §1441(b)(2)] . . . requires a party to be

properly joined and served before the forum defendant rule may limit the Court’s

1 Note that both actions also involve an in-forum defendant named Eduardo Diaz. However, the

Court limits its discussion to Rodriguez for the sake of efficiency, since the Motions can be

resolved with reference to Rodriguez alone.

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jurisdiction.” See Dechow v. Gilead Sciences, Inc., 358 F. Sup..3d 1051, 1055

(C.D. Cal 2019).2

Although these actions were properly removed to federal court, that does not

necessarily mean that it is proper for them to remain in federal court. On July 8,

2022, the plaintiffs in both actions filed waivers of service for Rodriguez. (22-

02491, Dkt. No. 41; 22-02492, Dkt. No. 40). Therefore, the Court is to operate “as

if a summons and complaint [were] served at the time [the plaintiff filed] the

waiver.” Fed. R. Civ. P. 4(d)(4). Therefore, since Rodriguez has now been properly

served, and since Rodriguez, like the plaintiffs in these actions, is a citizen of

California, it would appear that there is no longer complete diversity between the

parties in these actions.

c. Fraudulent Joinder

Given the above, the only remaining argument for jurisdiction under 28 U.S.C.

§1332(a) is that complete diversity still exists between the parties because

Rodriguez is only a party to these actions as a result of fraudulent joinder.

Yamazaki, Inc. makes this argument in its papers.

“There are two ways to establish improper joinder: (1) actual fraud in the pleading

of jurisdictional fact, or (2) inability of the plaintiff to establish a cause of action

against the non-diverse party in state court.” Hunter v. Philip Morris USA, 582

F.3d 1039, 1044 (9th Cir. 2009) (internal quotation marks omitted) (quoting

Smallwood v. Illinois Central R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)).

However, “[a] defendant invoking federal court diversity jurisdiction on the basis

of fraudulent joinder bears a heavy burden since there is a general presumption

against finding fraudulent joinder.” Grancare, LLC v. Thrower by and through

Mills, 889 F.3d 543, 548 (9th Cir. 2018) (cleaned up). This is because a mere

possibility “that a state court would find the complaint states a cause of action

against any of the resident defendants” is sufficient to justify remand. See id.

(quoting Hunter, 582 F.3d at 1046).

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2 Although another Court in the Central District has recently taken a different view of 28 U.S.C

§1441(b)(2), see Ross v. United Airlines, Inc., 2:22-cv-01532-SB-GJS, 2022 WL 1302680 at *2–

3 (C.D. Cal. April 30, 2022), this Court will adhere to its prior interpretation until either the

Ninth Circuit or the Supreme Court address this question definitively.

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The question before the Court, then, is whether the plaintiffs in these actions have

met the very low threshold of “possibility,” in stating causes of action against

Rodriguez in their complaints. The Court holds that they have.

Concerning the First Amended Complaint brought by Guillen, Yamazaki, Inc.

argues that Guillen cannot possibly establish liability for the sole cause of action

against Rodriguez, namely the twelfth cause of action for negligent infliction of

emotional distress. (22-02491, Dkt. No. 1, ¶ 28). Yamazaki, Inc. argues that

Rodriguez is a sham defendant because under applicable sections of California’s

Labor Code, “workers’ compensation is ‘the sole and exclusive remedy’ for an

employee in an action against the employer,” and “Plaintiff’s claim for negligent

infliction of emotional distress can [therefore] only be brought before the Workers

Compensation Appeals Board,” (and not in a state or federal court). (Id., ¶¶ 31–32,

35).

Guillen disagrees. She begins by drawing attention to two of her factual

allegations: (i) that she had a disability, and (ii) that Rodriguez refused to

accommodate her disability. (Guillen Mot. at 15). She then argues that Rodriguez’s

alleged refusal to accommodate her disability was unlawful under the Fair

Employment and Housing Act (“FEHA”) and that this placed Rodriguez’s alleged

behavior “outside the compensation bargain that gives rise to the [workers’

compensation] exclusivity rule.” (Id.). In support of this claim, Guillen cites Light

v. Dep’t of Parks & Recreation, 14 Cal.App.5th 75 (2017), in which the California

Court of Appeal permitted a plaintiff to pursue a tort claim “in the employment

context,” since the allegedly tortious conduct would also, if it occurred as alleged,

constitute a FEHA violation. Id. at 101. The Light court drew this conclusion

because it was “unwilling to abandon the long-standing view that unlawful

discrimination . . . in violation of FEHA falls outside the compensation bargain and

therefore [that a tort claim] based on such discrimination . . . [is] not subject to

workers’ compensation exclusivity.” Id.

The twelfth cause of action in Guillen’s First Amended Complaint is a tort claim,

and it is based on factual allegations that, if they occurred as alleged, could

constitute a FEHA violation. In the Court’s judgment, this is sufficient to get

Guillen’s twelfth cause of action over the “possibility” threshold articulated by the

Ninth Circuit in Grancare. Though it is not certain, it is possible that Rodriguez’s

alleged refusal to accommodate Guillen’s disability was unlawful under FEHA. It

is therefore possible that this behavior is not subject to the worker’s compensation

exclusivity rule. In other words, it is possible that Guillen has stated a cause of

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action against Rodriguez. Therefore, Yamazaki, Inc. is unable to establish

fraudulent joinder with respect to Rodriguez.

Since Rodriguez is a resident of California, Yamazaki, Inc. is unable to

demonstrate that complete diversity obtains among the parties in the Guillen

action. For this reason, the Guillen action must be remanded to state court.

Moreover, since the very same reasoning holds for the Pineda action, in which

Rodriguez is a defendant and is alleged to have acted in the same ways, the Pineda

action must also be remanded to state court.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the Motions and REMANDS both

actions to state court. Both cases are now CLOSED.

IT IS SO ORDERED.

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