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6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 GUSTAVO DAVIS, ) Case No. 5:25-cv-00330-DTB ) 11 ) Plaintiff, ) ORDER DENYING PLAINTIFF’S 12 ) ) MOTION TO REMAND ACTION 13 v. ) TO STATE COURT )

14 )

OREILLY AUTO ENTERPRISES, )

15 LLC, et al., ) ) 16 ) Defendants. ) 17

18 I. 19

PROCEEDINGS

20 On December 30, 2024, Plaintiff filed a Complaint in Riverside County 21 Superior Court, naming as Defendants O’Reilly Auto Enterprises, LLC 22 (“O’Reilly”), Doreen Corrales (“Corrales”), an employee of defendant O’Reilly, and 23 DOES 1 through 10. (Docket No. 1-2 at 3-36).1 The gist of the Complaint is that 24 on September 6, 2023, defendant O’Reilly wrongfully terminated Plaintiff, who had 25 worked for defendant O’Reilly as a stocker and Quality Assurance representative 26 27 1 For the parties’ pleadings and exhibits, the Court cites to the CM/ECF pagination at the top of 28 each page. 1 since July 2021, based on Plaintiff’s alleged failure to take a post-accident drug test, 2 and that defendant Corrales, the Human Resources representative for defendant 3 O’Reilly, harassed Plaintiff (“motivated in part, by Plaintiff’s history of making 4 complaints of sexual harassment”), by accusing him of refusing to take the post- 5 accident drug testing, by yelling at him post-termination for being on the workplace 6 premises, and by threatening him post-termination with arrest if he returned to the 7 workplace premises. (Docket No. 1-2 at 6-20). The Complaint alleges nine causes 8 of action: (1) Disability discrimination in violation of the California Fair 9 Employment and Housing Act (“FEHA”); (2) failure to reasonably accommodate in 10 violation in violation of FEHA; (3) failure to engage in the interactive process in 11 violation of FEHA; (4) discrimination based on sexual orientation in violation of 12 FEHA; (5) harassment based on disability in violation of FEHA; (6) harassment 13 based on sexual orientation in violation of FEHA; (7) retaliation in violation of 14 FEHA; (8) failure to take all reasonable steps to prevent discrimination, harassment, 15 and retaliation in violation of FEHA; and (9) wrongful termination in violation of 16 public policy. (Docket No. 1-2 at 1, 21-35). All causes of action were alleged 17 against defendant O’Reilly, but only the fifth and sixth causes of action were alleged 18 against defendant Corrales. (Id.). In the Prayer for Relief, the Complaint seeks, 19 among other things, general damages, special damages, consequential and incidental 20 damages, “economic damages, including loss of past and/or future earning and/or 21 benefits,” “past and/or future non-economic damages, including emotional distress, 22 23 pain and suffering, [and] physical injuries,” punitive and/or exemplary damages, and 24 attorneys’ fees, all according to proof. (Id. at 36). 25 / / / 26 / / / 27 / / / 28 / / / 1 On February 5, 2025, defendant O’Reilly filed a Notice of Removal, removing 2 this action from the Riverside County Superior Court to this Court, based on 3 allegations that the amount in controversy exceeded $75,000.00 and that there was 4 diversity jurisdiction because defendant Corrales was fraudulently joined. (Docket 5 No. 1).2 6 On February 28, 2025, Plaintiff filed a Motion to Remand Action to State 7 Court (“Motion to Remand”) on the grounds that defendant O’Reilly fails to show 8 that Plaintiff’s damages exceed $75,000.00 as of the date of the removal of the action 9 and that defendant Corrales was fraudulently joined. (Docket No. 8). On March 28, 10 2025, defendant O’Reilly filed an Opposition to the Motion to Remand 11 (“Opposition”). (Docket No. 10). On April 9, 2025, Plaintiff filed a Reply in support 12 of the Motion to Remand. (Docket No. 11). 13 Thus, this matter is ready for decision. For the reasons stated below, the Court 14 denies the Motion to Remand. 15

II.

16

LEGAL AUTHORITY

17 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life 18 Ins. Co. of Am., 511 U.S. 375, 377 (1994). A district court has original jurisdiction 19 of a civil action where the “matter in controversy exceeds the sum or value of 20 $75,000, exclusive or interest and costs,” and the matter in controversy is between 21 “citizens of different States[.]” 28 U.S.C. § 1332(a); see also Hunter v. Philip Morris 22 23 USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (“As for diversity jurisdiction, federal 24 district courts have jurisdiction overs suits for more than $75,000 where the 25 26

27 2 At that time, only defendant O’Reilly had been served with the Summons and Complaint. (See Docket No. 1-2 at 2). 28 1 citizenship of each plaintiff is different from that of each defendant.”) (citing 28 2 U.S.C. § 1332(a)). 3 A defendant may remove an action from state court to a district court if the 4 plaintiff could have originally filed the action in federal court. 28 U.S.C. § 1441(a). 5 “The notice of removal ‘need include only a plausible allegation that the amount in 6 controversy exceeds the jurisdictional threshold,’ and need not contain evidentiary 7 submissions.” Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 8 788 (9th Cir. 2018) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 9 574 U.S. 81, 90 (2014)). “‘Where . . . it is unclear from the face of a state-court 10 complaint whether the requisite amount in controversy is pled, the removing 11 defendant bears the burden of establishing, by a preponderance of the evidence, that 12 the amount in controversy exceeds the jurisdictional threshold.’” Fritsch, 899 F.3d 13 at 793 (citation omitted); see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 14 398, 404 (9th Cir. 1996) (when a state court complaint does not specify a particular 15 amount of damages, the removing defendant has the burden of establishing that it is 16 “more likely than not” that the amount in controversy exceeds the threshold amount); 17 Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (“If it is unclear what 18 amount of damages the plaintiff has sought, . . . then the defendant bears the burden 19 of actually proving the facts to support jurisdiction, including the jurisdictional 20 amount.”) (citation omitted; emphasis in original). “In calculating the amount in 21 controversy, a removing defendant may make reasonable assumptions based on the 22 23 plaintiff’s complaint.” Perez v. Rose Hills Co., 131 F.3d 804, 806 (9th Cir. 2025). 24 A district court’s determination about the amount in controversy is based on 25 allegations in the Complaint, the removal petition, and “‘summary-judgment-type 26 evidence relevant to the amount in controversy at the time of removal.’” Id. (citation 27 omitted). The amount in controversy is the “amount at stake in the underlying 28 litigation.” Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 1 2016); see also Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 418 (9th Cir. 2018) 2 (“[T]he amount in controversy includes all relief claimed at the time of removal to 3 which the plaintiff would be entitled if she prevails.”). The amount in controversy 4 “includes damages (compensatory, punitive or otherwise)” and future attorneys’ fees 5 recoverable under a statute or contract. Fritsch, 899 F.3d at 793-94; see also Chavez, 6 888 F.3d at 417 (“If a plaintiff claims at the time of removal that her termination 7 caused her to lose future wages, and if the law entitles her to recoup those future 8 wages if she prevails, then there is no question that future wages are ‘at stake’ in the 9 litigation, whatever the likelihood that she will actually recover them.”); Gibson v. 10 Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) (“It is well established that 11 punitive damages are part of the amount in controversy in a civil action.”) (citations 12 omitted). 13 “Although an action may be removed to federal court only where there is 14 complete diversity of citizenship, 28 U.S.C. §§ 1332(a), 1441(b), one exception to 15 the requirement for complete diversity is where a non-diverse defendant has been 16 ‘fraudulently joined.’” Hunter, 582 F.3d at 1043 (citation and internal quotation 17 marks omitted); see also Grancare, LLC v. Thrower by and through Mills, 889 F.3d 18 543, 548 (9th Cir. 2018) (“In determining whether there is complete diversity, 19 district courts may disregard the citizenship of a non-diverse defendant who has been 20 fraudulently joined.”) (citation omitted); Ritchey v. Upjohn Drug Co., 139 F.3d 21 1313, 1318 (9th Cir. 1998) (“[F]raudulently joined defendants will not defeat 22 23 removal on diversity grounds.”). “Fraudulent joinder . . . ‘is a term of art.’” Morris 24 v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (citation omitted). 25 Joinder is deemed fraudulent when a plaintiff “fails to state a cause of action against 26 a resident defendant, and the failure is obvious according to the settled rules of the 27 state.” Morris, 236 F.3d at 1067 (citation omitted); see also Hunter, 582 F.3d at 28 1046 (“[I]f there is a possibility that a state court would find that the complaint states 1 a cause of action against any of the resident defendants, the federal court must find 2 that the joinder was proper and remand the case to the state court.”) (citation and 3 internal quotation marks omitted). “[T]he party invoking federal court jurisdiction 4 on the basis of fraudulent joinder bears a ‘heavy burden’ since there is a ‘general 5 presumption against fraudulent joinder.’” Weeping Hollow Avenue Trust v. 6 Spencer, 831 F.3d 1110, 1113 (9th Cir. 2016) (citing Hunter, 582 F.3d at 1046). A 7 court may consider facts outside of the pleadings to determine whether joinder of a 8 non-diverse defendant is fraudulent. See Ritchey, 139 F.3d at 1318; see also 9 McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987) (“The 10 defendant seeking removal of the federal court is entitled to present the facts showing 11 the joinder to be fraudulent.”). 12 “. . . [R]emoval statutes should be construed narrowly in favor of remand to 13 protect the jurisdiction of state courts.” Harris v. Bankers Life and Cas. Co., 425 14 F.3d 689, 698 (9th Cir. 2005) (citation omitted); see also Nevada v. Bank of America 15 Corp., 672 F.3d 661, 667 (9th Cir. 2012) (“Removal statutes are to be ‘strictly 16 construed against removal jurisdiction.”) (citation omitted). “Federal jurisdiction 17 must be rejected if there is any doubt as to the right of removal in the first instance.” 18 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citation omitted). “The 19 ‘strong presumption’ against removal jurisdiction means that the defendant always 20 has the burden of establishing that removal is proper.” Id. (citation omitted). 21

III.

22 23 DISCUSSION 24 A. The Amount in Controversy Exceeds $75,000.00. 25 Plaintiff moves to remand this action to the state court based, in part, on 26 defendant O’Reilly’s failure to meet its burden of showing by a preponderance of 27 the evidence that, as of the date of removal, the amount in controversy exceeds the 28 required threshold of $75,000.00. (Motion to Remand at 7, 10-14). 1 Defendant contends that it has provided sufficient evidence of Plaintiff’s 2 economic damages (lost past wages, lost future wages), non-economic damages 3 (emotional distress), punitive damages, and attorneys’ fees, each of which could 4 exceed the $75,000.00 amount in controversy jurisdictional requirement. 5 (Opposition at 9-16). 6 Since the Complaint does not specify the amount of damages and attorney’s 7 fees sought by Plaintiff, defendant O’Reilly bears the burden of showing the amount 8 in controversy exceeds $75,000.00. See Fritsch, 899 F.3d at 793; Sanchez, 102 F.3d 9 at 404; Gaus, 980 F.2d at 566-67. 10 1. Lost Past Wages. 11 Plaintiff contends that defendant O’Reilly’s “notice of removal is severely 12 deficient because it only summarily alleges that the amount in controversy exceeds 13 $75,000, while alleging insufficient facts to support its assertion.” (Motion to 14 Remand at 10). While acknowledging that, in the Notice of Removal, defendant 15 O’Reilly provided evidence of Plaintiff’s alleged lost past wages -- approximately 16 $64,064.80 from the date of termination on or about September 6, 2023 to the date 17 of the filing of the Notice of Removal -- based on the calculation of $21.94 per hour 18 x 40 hours per week x 73 weeks (see Docket No. 1 at 10, ¶ 30, citing Docket No. 1- 19 1 at 2, ¶ 7; see also Opposition at 14, citing Docket No. 10-1 at 2, ¶ 4), Plaintiff 20 argues that defendant O’Reilly fails to “take into account Plaintiff’s effort to mitigate 21 his damages by finding subsequent employment.” (Motion to Remand at 11; see 22 23 also Reply at 8-9). 24 However, since Plaintiff has not submitted any mitigation evidence, the Court 25 is unable to consider mitigation in the calculation of the amount in controversy. See 26 Canales v. Performance Food Group, Inc., Case No. 2:17-cv-JGB-JPR, 2017 WL 27 5905498, at *4 (C.D. Cal. Nov. 30, 2017) (“[The plaintiff] also argues Defendant 28 fails to provide any evidence that she is seeking the entire lost wage amount, as she 1 could have offset or mitigated her damages. . . . The Court would have considered 2 such relevant evidence had Plaintiff presented any evidence that her amount of 3 potential lost wages would be reduced. . . . Since Plaintiff has not presented any 4 such evidence, the Court finds that potential mitigation or offsets should not be 5 included in the amount of controversy calculation.”). 6 Therefore, the amount in controversy is, at a minimum, $64,064.80. 7 2. Lost Future Wages. 8 Plaintiff contends that, in the Notice of Removal, defendant O’Reilly’s 9 calculation of Plaintiff’s lost future wages (see Docket No. 1 at 11, ¶ 31 [“Given that 10 the trial date has not yet been set, and because it is unknown whether Plaintiff will 11 still be unemployed at that time, additional lost wages and benefits may accrue. 12 Assuming Plaintiff prevails on his claims and seeks front pay wages and benefits for 13 a period of two years (104 weeks), the future wages in controversy in this case is an 14 additional $91,270.40 ($21.94 per hour x 40 hours per week x 104 weeks.”] 15 (emphasis in original); see also Opposition at 14 (calculating Plaintiff’s lost future 16 wages for one year to be $47,390.40, based on $21.94 per hour x 40 weeks x 52 17 weeks)), is based solely on speculation about Plaintiff remaining unemployed. 18 (Motion to Remand at 12). 19 As noted above, the Complaint specifically seeks unspecified economic 20 damages for the loss of future earnings and/or benefits. (Docket No. 1-2 at 36). 21 Plaintiff may be entitled to future lost wages if he prevails in this action. See 22 23 Wysinger v. Auto Club of S. Cal., 157 Cal. App. 4th 413 (2007) (“Under FEHA, an 24 employee . . . may be compensated for a future loss of earnings.”). Consequently, 25 Plaintiff’s loss of future wages must be considered in the amount in controversy 26 determination. See Chavez, 888 F.3d at 418 (“Where, as here, a plaintiff’s complaint 27 at the time of removal claims wrongful termination resulting in lost future wages, 28 those future wages are included in the amount in controversy.”). Defendant 1 O’Reilly has cited wrongful termination cases upholding awards of lost future wages 2 for as much as four years. (See Opposition at 14). Whether Plaintiff receives one 3 year or two years of lost future wages ($47,390.40 or $91,270.40), the amount in 4 controversy, when including Plaintiff’s lost past wages discussed above 5 ($64,064.80), exceeds the $75,000.00 amount in controversy threshold.3 6 3. Emotional Distress Damages. 7 Plaintiff contends that defendant O’Reilly has not provided any facts or 8 evidence to support its “unbridled speculation” in the Notice of Removal that 9 Plaintiff will suffer emotional distress damages exceeding $75,000.00. (Motion to 10 Remand at 12, citing Docket No. 1 at 11-12, ¶¶ 32-34). 11 As an initial matter, Plaintiff’s suggestion that defendant O’Reilly should have 12 provided “summary judgment type evidence” in the Notice of Removal to support 13 the amount of Plaintiff’s emotional distress damages (see Motion to Remand at 12) 14 is unfounded. As stated above, “a defendant’s notice of removal need only include 15 a plausible allegation that the amount in controversy exceeds the jurisdictional 16 threshold.” Dart Cherokee, 574 U.S. at 90. “Evidence establishing the amount is 17 required by [28 U.S.C.] § 1446(c)(2)(B) only when the plaintiff contest, or the court 18 questions, the defendant’s allegation.” Id. Since there has been no indication that 19 Plaintiff contested or the state judge questioned defendant O’Reilly’s allegations 20 regarding Plaintiff’s emotional distress damages, defendant O’Reilly was not 21 required to provide evidence establishing the specific amount of Plaintiff’s 22 23 emotional distress damages. 24 As noted above, the Complaint seeks unspecified damages for “emotional 25 distress [and] pain and suffering.” (Docket No. 1-2 at 36). Emotional distress 26

27 3 Even if the loss of Plaintiff’s future wages were not included in the amount in controversy determination, the amount in controversy would still exceed $75,000, as discussed below. 28 1 damages may be considered in the amount in controversy determination. See Kroske 2 v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005). For purposes of determining 3 emotional distress damages, evidence of jury verdicts in other cases may be 4 submitted. See id. (“In determining the amount in controversy, the district court 5 properly consider [the plaintiff’s] answers and emotional distress damage awards in 6 similar age discrimination cases in Washington.”); Avila v. Kiewit Corporation, 7 Case No. 2:19-cv-05740-MWF-JPR, 2019 WL 4729641, at *3 (C.D. Cal. Sept. 26, 8 2019) (“A defendant may introduce evidence of jury verdicts in other cases as 9 evidence of a plaintiff’s potential emotional distress damages.”) (citations omitted). 10 In the Opposition, defendant O’Reilly has introduced several cases involving 11 alleged disability discrimination, disability retaliation, failure to engage in the 12 interactive process, and/or wrongful termination, with jury verdicts for emotional 13 distress or noneconomic damages ranging from $150,060.00 to $3,000,000.00. (See 14 Opposition at 15-16, citing six exhibits attached to the Notice of Removal; see also 15 Docket No. 1 at 11-12, ¶ 33-34; Docket No. 1-1 at 2-3, ¶¶ 8, 11-16). 16 Plaintiff argues that the Court should not rely on those cases because their 17 facts are not “identical to” the facts of Plaintiff’s case. (Motion to Remand at 12; 18 Reply at 10). Contrary to Plaintiff’s assertion, the Court, in determining the amount 19 in controversy, can rely on cases whose facts are analogous or similar to Plaintiff’s 20 case. See e.g., Kroske, 432 F.3d at 980 (finding the district court properly considered 21 “emotional distress damage awards in similar age discrimination cases in 22 23 Washington”); Avila, 2019 WL 4729641, at *4 (stating that “the Court will consider 24 similar cases involving disability discrimination and wrongful termination in its 25 amount in controversy analysis”) (emphasis in original); Castillo v. ABM Indus., 26 Inc., Case No. 5:17-cv-01889-AB-KKx, 2017 WL 5609791, at *3-4 (C.D. Cal. Nov. 27 20, 2017) (“Such cases must be factually analogous, but they need not be identical.”). 28 1 Some of the cases cited by defendant O’Reilly appear to be sufficiently 2 analogous or similar to Plaintiff’s case. In Lave v. Charter Communications L.L.C., 3 2017 WL 3712924, a Riverside County jury found the plaintiff’s former employer 4 liable, among other things, for retaliation, disability discrimination, wrongful 5 termination in violation of public policy, failure to remedy and/or prevent 6 discrimination and retaliation, and intentional infliction of emotional distress, and 7 awarded the plaintiff $575,000.00 in past noneconomic losses. In Preciado v. 8 Alfaquir, Inc., 2016 WL 9459360, a San Bernardino County Superior Court jury 9 found that the plaintiff’s former employer was liable for disability discrimination, 10 retaliation, failure to participate in the interactive process, failure to provide 11 reasonable accommodation, failure to prevent discrimination and/or retaliation, 12 wrongful termination in violation of public policy, failure to pay commission wages, 13 and defamation, and awarded the plaintiff $150,060.00 in compensatory pain and 14 suffering damages. In Palma v. Rite Aid Corp., 2012 WL 3541952, a Los Angeles 15 County Superior Court jury awarded the plaintiff, who alleged “gender, disability 16 and medical leave termination,” harassment, and infliction of emotional distress 17 against her former employer, $1,500,000.00 for past non-economic loss and 18 $1,500,000 for future non-economic loss. In Grodzik v. California Conservation 19 Corps., 2010 WL 3898722, a Sacramento County Superior Court jury awarded the 20 plaintiff, who alleged disability discrimination and retaliation and wrongful 21 termination against her former employer, $159,152.00 for pain and suffering. 22 23 Without quantifying the exact amount of Plaintiff’s emotional distress 24 damages, and without deciding whether the facts of Plaintiff’s case are sufficiently 25 analogous or similar to the cases cited by defendant O’Reilly, the Court finds that 26 Plaintiff’s emotional distress damages are potentially substantial. See Avila, 2019 27 WL 4729641, at *4. 28 / / / 1 4. Punitive Damages. 2 Plaintiff contends that the Court, in its determination of the amount in 3 controversy, should not consider potential punitive damages, because defendant 4 O’Reilly “has not provided any evidence in support of punitive damages, nor the 5 amount which could ever be awarded.” (Motion to Remand at 13; see Reply at 14 6 [“[D]efendant [O’Reilly] has provided no evidence that it is more likely than not, 7 i.e. a preponderance of the evidence, that Plaintiff will receive punitive damages if 8 he is successful in his underlying claims at trial. Moreover, [d]efendant [O’Reilly] 9 has also failed to provide any evidence of the amount of punitive damages Plaintiff 10 would likely receive, if any.”]) (emphasis in original). 11 As noted above, the Complaint seeks unspecified punitive damages. (Docket 12 No. 1-2 at 36). As also noted above, the amount in controversy determination can 13 take into account punitive damages. Gibson, 261 F.3d at 945. For purposes of 14 determining punitive damages, evidence of jury verdicts in analogous or similar 15 cases may be submitted. See Avila, 2019 WL 4729641, at *4 (“Where the plaintiff 16 seeks punitive damages but does not specify a particular amount, the defendant ‘may 17 introduce evidence of jury verdicts in cases involving analogous facts’ in order to 18 establish probable punitive damages.”) (citation omitted). 19 In the Opposition, defendant O’Reilly submits four cases in which juries 20 awarded punitive damages ranging from $120,000.00 to $5,000,000.00. (Opposition 21 at 16; see also Docket No. 1 at 12, ¶ 35; Docket No. 1-1 at 3, ¶¶ 10, 18-20). 22 23 It appears that one of those cases is sufficiently analogous or similar to 24 Plaintiff’s case. In Olivas-Dean v. American Meizhou Dongpo Group Inc., 2017 25 WL 3531353, a Los Angeles County Superior Court jury found his former employer 26 guilty of wrongful termination and failure to prevent discrimination or retaliation 27 and awarded the plaintiff $250,000.00 in punitive damages. While a sample size of 28 1 one is not a particularly good indicator of the amount of punitive damages, it does 2 tend to support a finding that the amount in controversy exceeds $75,000.00. 3 Without quantifying the exact numerical value of punitive damages, and 4 without deciding whether the facts of Plaintiff’s case are sufficiently analogous or 5 similar to the cases cited by defendant O’Reilly, the Court finds that punitive 6 damages are potentially substantial. See Avila, 2019 WL 4729641, at *4. 7 5. Attorneys’ Fees. 8 Plaintiff contends that attorneys’ fees should not be included in the amount in 9 controversy determination: “As to attorney’s fees, [d]efendant [O’Reilly] again fails 10 to provide any evidence which can permit this Court to take into account attorneys’ 11 fees in calculating the likely amount in controversy. Simply citing to other 12 employment cases in which attorneys’ fees were awarded, as [d]efendant [O’Reilly] 13 has done on their notice of removal, is not sufficient evidence to support a similar 14 award in this instance.” (Motion to Remand at 14). 15 As an initial matter, Plaintiff’s statement that “there is a split in the Ninth 16 Circuit about whether a court should only consider attorneys’ fees incurred as of the 17 time of removal or likely to be incurred after removal” (Motion to Remand at 14) is 18 erroneous. See Fritsch, 899 F.3d at 793-94 (finding that the amount in controversy 19 includes future attorneys’ fees recoverable under a statute or contract); Arias v. 20 Residence Inn by Marriott, 936 F.3d 920, 927-28 (9th Cir. 2019) (finding that, in 21 light of Fritsch, there was no split of authority in the Ninth Circuit as to whether 22 23 prospective attorneys’ fees should be included in the amount in controversy 24 determination). 25 As noted above, the Complaint seeks unspecified attorneys’ fees. (Docket 26 No. 1-2 at 36). Since in a FEHA action, like Plaintiff’s, attorneys’ fees are 27 recoverable by the prevailing party, the amount in controversy determination can 28 take into consideration attorneys’ fees. See Cal. Govt. Code § 12965; Rowell v. 1 United Parcel Service, Case No. 5:23-01002-ODW-BFM, 2023 WL 6808377, at *4 2 (C.D. Cal. Oct. 13, 2023). “An estimate of a potential award of attorney’s fees may 3 be based on those that have been made in similar cases.” Lopez v. Healthcare 4 Services Group, Inc., 2019 WL 1646083, at *4 (C.D. Cal. Apr. 2, 2019). 5 In the Opposition, defendant O’Reilly relies on three cases which involved 6 awards of attorneys’ fees: (1) Schermerhorn v. Los Angeles Unified Dist., 2006 WL 7 4870633, in which a Los Angeles Court Superior Court jury awarded $568,108 in 8 attorneys’ fees for the plaintiff who prevailed on a disability discrimination claim; 9 (2) Dickinson v. Allstate Ins. Co., 2011 WL 4048838, in which an Orange County 10 Superior Court awarded $567,222.00 in attorneys’ fees for the plaintiff who alleged 11 numerous claims, including disability discrimination, wrongful termination, 12 retaliation, failure to engage in interactive process, and wrongful harassment; and 13 (3) Lave v. Charter Communications L.L.C., 2017 WL 3712924, in which a 14 Riverside County Superior Court awarded $400,800.00 in attorneys’ fees for the 15 plaintiff who prevailed on, among other things, disability discrimination, retaliation, 16 and wrongful termination claims. (See Opposition at 11; see also Docket No. 1 at 17 13-14, ¶ 38; Docket No. 1-1 at 3-4, ¶¶ 16, 21, 22). 18 Without quantifying the exact amount of attorneys’ fees, and without deciding 19 whether the facts of Plaintiff’s case are sufficiently analogous or similar to the cases 20 cited by defendant O’Reilly, the Court finds that attorneys’ fees are potentially 21 substantial. 22 23 In the Opposition, defendant O’Reilly argues, in the alternative, that the 24 amount in controversy will “easily” exceed $75,000.00 if Plaintiff’s counsel expends 25 on 150 hours of time on this matter at $500.00 per hour (which, according to 26 defendant O’Reilly, is a “modest rate”). Based on 100 hours of Plaintiff’s counsel’s 27 time at $300.00 per hour, see Avila, 2019 WL 4729641, at *6 (“A number of courts 28 have held that 100 hours and an hourly rate of $300.00 is an appropriate and 1 conservative estimate for employment cases.”), attorneys’ fees in this case would be 2 estimated to be at least $30,000.00. 3 In sum, Defendant has met his burden of showing that the amount in 4 controversy in Plaintiff’s case exceeds $75,000.00, solely based on lost past wages, 5 lost future wages, and attorneys’ fees. Defendant has also shown that emotional 6 distress damages and punitive damages are potentially substantial. 7 Accordingly, the Court finds that the amount in controversy in Plaintiff’s case 8 exceeds $75,000.00. 9 B. Defendant Corrales was Fraudulently Joined. 10 Plaintiff moves to remand this action to state court based, in part, on the lack 11 of complete diversity of citizenship. (Motion to Remand at 15). According to 12 Plaintiff, defendant Corrales was not fraudulently joined because in the Complaint, 13 “Plaintiff stated two viable Causes of Action for Harassment (on the basis of both 14 disability and sexual orientation) against [defendant Corrales] and there is a 15 possibility that he will prevail on the merits in the event his case proceeds to a jury 16 trial.” (Motion to Remand at 15-16; see also Reply at 15). 17 Defendant O’Reilly argues that there is complete diversity in this action 18 because, based on the allegations in the Complaint, Plaintiff has not stated an 19 actionable harassment claim against defendant Corrales and, therefore, defendant 20 Corrales was fraudulently joined. (Opposition at 16-22). 21 1. Relevant Allegations in the Complaint. 22 23 a. Citizenship. 24 The Complaint alleges that the state court has jurisdiction over this action 25 because Plaintiff was employed in Riverside, California, defendant O’Reilly is a 26 citizen of California or has sufficient minimum contacts in California, and defendant 27 Corrales is a resident/citizen of California. (Docket No. 1-2 at 4, ¶¶ 3, 5-7). 28 / / / 1 In the Notice of Removal, defendant O’Reilly asserted that it was a citizen of 2 Delaware based on its state of incorporation and Missouri based on its principal place 3 of business, and that there was diversity of citizenship between Plaintiff and 4 defendant O’Reilly. (Docket No. 1 at 3-4, ¶¶ 10-13, citing Docket No. 1-19 at 2, ¶¶ 5 4-6). 6 Since there is no indication that Plaintiff challenged defendant O’Reilly’s 7 assertions about diversity of citizenship between Plaintiff and defendant O’Reilly in 8 the state court, and since Plaintiff still does not argue that Plaintiff and defendant 9 O’Reilly do not have diversity of citizenship (see Motion to Remand at 15-18; Reply 10 at 14-17), Plaintiff appears to concede that he and defendant O’Reilly have diversity 11 of citizenship. 12 b. Defendant Corrales. 13 The Complaint makes the following allegations about defendant Corrales: 14 Shortly [after providing his workplace injury paperwork to his 15 supervisor], Plaintiff was contacted by someone in management or 16 Human Resources, either “Mitzy” or Doreen Corrales. The caller was angry with Plaintiff, yelling at him and accusing him of going to the 17 wrong medical provider and refusing to take a drug test on the day of 18 his injury. Plaintiff was shocked and confused. He told the caller he had done exactly what he was instructed to do, and that he had, in fact, 19 taken a drug test when instructed to do so. Plaintiff is informed and 20 believes that he was instructed to leave work immediately. (Docket No. 1-2 at 12, ¶ 39). 21

22 23 Within a day or two Plaintiff was called in to the Human Resources department for a meeting. During this interview, the Human Resources 24 representative, Doreen Corrales, was being very accusatory, alleging 25 that Plaintiff had intentionally gone to the wrong clinic, and that he refused to take a drug test. 26 (Docket No. 1-2 at 12, ¶ 40). 27 / / / 28 1 During the meeting, Human Resources personnel, including CORRALES, accused Plaintiff of lying about what the safety 2 supervisor and the nurse had instructed him to do on the date of the 3 injury. . . . The Human Resources representative accused Plaintiff of “refusing” to take a drug test in Riverside. . . . Plaintiff said he had 4 given the medical provider the paperwork and followed their 5 instructions. Plaintiff explained that he never refused to take a drug 6 test, and that he did, in fact, take the drug test when asked to do so, at the Moreno Valley Clinic. After being harassed in this manner Plaintiff 7 was sent home and told to wait for a phone call. 8 (Docket No. 1-2 at 12, ¶ 41). 9 10 Plaintiff is informed and believes CORRALES’ harassment of Plaintiff was also motivated, in part, by Plaintiff history of making complaints 11 of sexual harassment, and that CORRALES saw the drug testing issue 12 as an opportunity to get rid of someone she saw as a trouble maker. Plaintiff is an openly gay married man. During his employment several 13 of his co-workers harassed him with anti-gay comments, slurs, gossip, 14 and insulting body language such as staring and mean looks. Plaintiff 15 would informally complaint about the harassment. When one co- worker took things too far and would not stop the anti-gay slurs directed 16 at Plaintiff, he was forced to make a formal complaint to CORRALES 17 in Human Resources. This co-worker was known to be a problem employee. Plaintiff is informed and believes an investigation was 18 conducted and the harassing co-worker was terminated. A few months 19 later, another of Plaintiff’s co-workers was making inappropriate comments about Plaintiff’s sexual orientation. Plaintiff brought his 20 complaint to CORRALES again. This time, the harassing co-worker 21 was friendly with CORRALES. CORRALES told Plaintiff that the harassment was not such a big deal and that he should just try to avoid 22 the co-worker. CORRALES did not want the co-worker to lose her job 23 or be disciplined. CORRALES made Plaintiff feel that she was 24 annoyed with his continuous allegations about sexual harassment. (Docket No. 1-2 at 13, ¶ 42). 25 / / / 26 / / / 27 / / / 28 1 Plaintiff is informed and believes that at the time he was accused by CORRALES of refusing the post-accident drug test, his second formal 2 complaint of sexual harassment was still unresolved. Plaintiff does not 3 know if an investigation was conducted. He just got the impression from CORRALES that she wanted to sweep the issue under the rug, 4 and that she was tired of dealing with Plaintiff’s complaints. For this 5 reason, Plaintiff is also informed and believes that CORRALES’ 6 harassing and insulting demeanor during the drug testing issue was partially motivated by her exhaustion with Plaintiff’s previous 7 complaints. Plaintiff believes CORRALES saw the drug testing issue 8 as an opportunity to get rid of an employee she saw as a troublemaker. (Docket No. 1-2 at 13, ¶ 43). 9

10 A few hours after Plaintiff had already been unceremoniously fired, 11 without notice or explanation, he received a call from the Human 12 Resources manager, Doreen Corrales. She was very angry and yelling at him. She said, “do you understand what ‘terminated’ means? You’re 13 fired so you can’t be on the premises anymore.” . . . CORRALES 14 threatened Plaintiff that if he ever tried to come to the workplace he 15 would be arrested. Plaintiff told CORRALES that the Human Resources representative’s accusations were false and very hurtful. 16 Plaintiff was devastated, finding himself not only a severe life-changing 17 physical injury, but also having lost the job he loved and took great pride in. 18 (Docket No. 1-2 at 14-15, ¶ 48). 19

20 2. California Law on Harassment. 21 Under FEHA, it is unlawful for an employer or another other person to harass 22 an employee because of, among other things, physical disability and sexual 23 orientation. Cal. Govt. Code § 12940(j)(1). For a cause of action for harassment, a 24 plaintiff employee must allege (1) he or she belongs to a protected group, (2) he or 25 she was subject to unwelcome harassment, (3) the harassment was based on his or 26 her protected group, (4) the harassment was sufficiently persuasive so as to alter the 27 conditions of employment and create an abusive working environment, and (5) 28 1 defendants are liable for the harassment. Fisher v. San Pedro Hospital, 214 Cal. 2 App. 3d 590, 608 (1989); see also Miller v. Department of Corrections, 36 Cal. 4th 3 446, 462 (“[A]n employee claiming harassment based upon a hostile work 4 environment must demonstrate that the conduct complained of was severe enough 5 or sufficiently pervasive to alter the conditions of employment and create a work 6 environment that qualifies as hostile or abuse to employees because of their 7 [protected group]”). “‘[H]arassment [under FEHA] consists of a type of conduct not 8 necessary for performance of a supervisory job. Instead, harassment consists of 9 conduct outside the scope of necessary job performance, conduct presumably 10 engaged in for personal gratification, because of meanness or bigotry, or for other 11 personal motives. Harassment is not conduct of a type necessary for management 12 of the employer’s business or performance of the supervisory employee’s job.’” 13 Reno v. Baird, 18 Cal. 640, 645-46 (1998) (quoting Janken v. GM Hughes 14 Electronics, 46 Cal. App. 4th 55, 63 (1996)). Generally, “acts of harassment cannot 15 be occasional, isolated, sporadic, or trivial, rather, the plaintiff must show a 16 concerted pattern of harassment of a repeated, routine, or a generalized nature.” Id. 17 at 609 (citation omitted); but see Cal. Govt. Code § 12923(b) (“A single incident of 18 harassing conduct is sufficient to create a triable issue regarding the existence of a 19 hostile work environment if the harassing conduct has unreasonably interfered with 20 the plaintiff’s work performance or created an intimidating, hostile, or offensive 21 working environment.”). 22 23 3. Analysis. 24 Plaintiff has not stated a viable claim of harassment based on disability or 25 sexual orientation against defendant Corrales. The Complaint does not allege that 26 defendant Corrales harassed Plaintiff because he belonged to a protected group, i.e., 27 because he was disabled or because of his sexual orientation. (See Docket No. 1-2 28 at 28-31). Cf. Hernandez v. Elevance Health Companies, Inc., Case No. 2:23-cv- 1 MWF-ADS, 2023 WL 4422842, at *3 (noting that the plaintiff alleged that “she was 2 subject to harassment by her direct supervisor . . . because she belong to [a protected] 3 group.”). The Complaint does not make clear the nature of Plaintiff’s disability. The 4 Complaint does not contain any factual allegations concerning defendant Corrales’ 5 harassment of Plaintiff based on any alleged disability. Moreover, there are no 6 allegations in the Complaint that defendant Corrales’ harassment was sufficiently 7 pervasive so as to alter Plaintiff’s conditions of employment and create an abusive 8 working environment. Most of the allegations in the Complaint as to defendant 9 Corrales appear to relate to her job performance as a Human Resources manager. 10 (See e.g., Docket No. 1-2 at 12, ¶ 39 (possibly accusing Plaintiff of going to the 11 wrong medical provider and refusing to take a drug test on the day of his injury and 12 possibly instructing Plaintiff to leave work immediately), ¶ 40 (accusing Plaintiff of 13 intentionally going to the wrong clinic and refusing to take a drug test), ¶ 41 14 (accusing Plaintiff of lying about what the safety supervisor and the nurse had 15 instructed him to do on the date of the injury, and possibly sending Plaintiff home 16 and telling him to wait for a phone call), 13, ¶ 42 (telling Plaintiff a co-worker’s 17 harassment of him was not such a big deal and that he should just try to avoid the 18 co-worker), 14, ¶ 48 (telling Plaintiff that he could not be on the premises after he 19 was firing and that he would be arrested if he returned to the workplace). In essence, 20 the allegations in the Complaint are that defendant Corrales was brusque and unkind 21 to Plaintiff when they interacted. (See e.g., Docket No. 1-2 at 12, ¶ 39 (possibly 22 23 being angry with and yelling at Plaintiff), ¶ 40 (being “very accusatory”), 13, ¶ 42 24 (making Plaintiff feel that she was annoyed with his continuous allegations about 25 sexual harassment), ¶ 43 (being exhausted by Plaintiff’s complaints about sexual 26 / / / 27 / / / 28 / / / 1 harassment), ¶ 42), 14, ¶ 48 (being angry at and yelling at Plaintiff about his 2 understanding of being “terminated,” and possibly making false and “very hurtful 3 accusations”). Such allegations are insufficient to state a viable claim of harassment 4 against defendant Corrales. 5 In sum, Plaintiff has failed to make allegations of harassment against 6 defendant Corrales for which defendant Corrales can be held liable. Plaintiff has not 7 shown there are facts supporting a conceivable or possible harassment claim against 8 defendant Corrales. See, e.g., Hernandez, 2023 WL 4422842, at *5 (noting that 9 district courts have remanded cases in which the plaintiffs “could possibly state a 10 [FEHA] harassment claim” against non-diverse individual defendant supervisors). 11 The possibility that Plaintiff can state a claim of harassment against defendant 12 Corrales appears to be “fanciful.” See Barsell v. Urban Outfitters, Inc., Case No. 13 2:09-cv-02604-MMMJ-RZ, 2009 WL 1916495, at *3 (C.D. Cal. July 2, 2009) (“[I]f 14 there is a non-fanciful possibility that plaintiff can state a claim under [state] law 15 against the non-diverse defendant[s] the court must remand.”) (citation omitted). 16 The fact that the Complaint contains minimal, unsubstantial, and vague allegations 17 against defendant Corrales, allegations which are not the focal point of the 18 Complaint, leads the Court to “strongly suspect” that defendant Corrales was sued 19 for the purpose of defeating diversity jurisdiction. See Hernandez, 2023 WL 20 4422842, at *5 (noting that the plaintiff’s direct supervisor was the “focal point of 21 the entire Complaint”). 22 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. 2 ORDER 3 The Court therefore finds that defendant Corrales was fraudulently joined in 4 || this action. As a result, the Court, disregarding the citizenship of defendant Corrales, > Grancare, LLC, 889 F.3d at 548, determines that there is complete diversity. © ||Consequently, the Court finds that it has diversity jurisdiction over this action. 7 Accordingly, Plaintiff's Motion to Remand is DENIED. 8 9 ll bated: May 14, 2025 . 10 fl T! ls OW United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22