Case 8:22-cv-01396-CJC-JDE Document 14 Filed 09/19/22 Page 1 of 8 Page ID #:196

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION

11 ) ) Case No.: SACV 22-01396-CJC (JDEx) 12 CINDY BARRINGER, ) ) 13 ) Plaintiff, ) ORDER GRANTING PLAINTIFF’S 14 ) MOTION TO REMAND [Dkt. 11] v. ) 15 ) ) 16 WAL-MART STORES, INC., DANIEL ) VELASCO, and DOES 1-25, inclusive, ) 17 ) ) 18 ) Defendants. ) 19 ) 20 21 I. INTRODUCTION & BACKGROUND 22 23 In this case, Plaintiff Cindy Barringer alleges that her former employer Defendant 24 Wal-Mart Stores, Inc. (“Wal-Mart”) and her former supervisor Defendant Daniel Velasco 25 unlawfully terminated her employment based on her disability. (Dkt. 1-1 [Complaint, 26 hereinafter “Compl.”].) In early 2021, Plaintiff began experiencing gastrointestinal 27 issues that affected her ability to work. (See id. ¶¶ 11–18.) She explained to Velasco her 28 symptoms, which included excessive nausea and continual vomiting, and told him she

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1 was concerned about keeping her job due to the many absences her illness necessitated. 2 (Id. ¶¶ 5, 14–15, 21.) Velasco repeatedly either put off a discussion with Plaintiff until 3 later, “giving Plaintiff the runaround,” or told her not to worry about it, and also told her 4 that she did not need to provide medical documents supporting her illnesses. (Id. ¶¶ 18– 5 21.) Nevertheless, Wal-Mart terminated Plaintiff’s employment for her absences related 6 to her medical issues. (Id. ¶ 22.) Plaintiff alleges that Defendants assessed “points” for 7 Plaintiff’s absences that eventually led to termination of her employment even though 8 Velasco knew those absences were due to medical issues. (Id. ¶ 79.) Plaintiff asserts 9 claims including wrongful termination, discrimination, retaliation, and failure to 10 accommodate against Wal-Mart, and claims for harassment and negligent and intentional 11 infliction of emotional distress against Wal-Mart and Velasco. (See id. ¶¶ 31–143.) 12 13 The parties in this case are not completely diverse. Like Plaintiff, Velasco is a 14 citizen of California. (See id. ¶ 5.) Wal-Mart is a citizen of Delaware and Arkansas. 15 (Dkt. 1 [Notice of Removal] ¶ 13.) Plaintiff brought this case in Orange County Superior 16 Court. Wal-Mart removed, arguing that Velasco was fraudulently joined and that his 17 citizenship should be ignored for purposes of determining diversity jurisdiction. (Dkt. 1 18 [Notice of Removal, hereinafter “NOR”] ¶¶ 15–16, 35.) Now before the Court is 19 Plaintiff’s motion to remand. (Dkt. 11 [Motion, hereinafter “Mot.”].) For the following 20 reasons, Plaintiff’s motion is GRANTED.1 21 22 II. LEGAL STANDARD 23 24 “Federal courts are courts of limited jurisdiction,” possessing “only that power 25 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for September 26, 2022 at 1:30 p.m. is hereby vacated and off calendar.

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1 (internal quotations omitted). A civil action brought in state court, but over which a 2 federal court may exercise original jurisdiction, may be removed by the defendant to a 3 federal district court. 28 U.S.C. § 1441(a). By statute, federal courts have diversity 4 jurisdiction over suits where more than $75,000 is in controversy if the citizenship of 5 each plaintiff is different from that of each defendant. 28 U.S.C. § 1332(a). The burden 6 of establishing subject matter jurisdiction falls on the defendant, and the removal statute 7 is strictly construed against removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 8 566 (9th Cir. 1992). Indeed, “[f]ederal jurisdiction must be rejected if there is any doubt 9 as to the right of removal in the first instance.” Id. If at any time before final judgment, 10 the court determines that it lacks subject matter jurisdiction, the action shall be remanded 11 to state court. 28 U.S.C. § 1447(c). 12 13 Although diversity jurisdiction requires complete diversity of citizenship, there is 14 an exception to that requirement “where a non-diverse defendant has been fraudulently 15 joined.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). “Joinder is 16 fraudulent ‘if the plaintiff fails to state a cause of action against a resident defendant, and 17 the failure is obvious according to the settled rules of the state.’” Id. (quoting Hamilton 18 Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)). Conversely, 19 “if there is any possibility that the state law might impose liability on a resident defendant 20 under the circumstances alleged in the complaint, the federal court cannot find that 21 joinder of the resident defendant was fraudulent, and remand is necessary.” Id. at 1044. 22 23 III. ANALYSIS 24 25 Plaintiff asserts three claims against Velasco: harassment, intentional infliction of 26 emotional distress (“IIED”), and negligent infliction of emotional distress (“NIED”). 27 Wal-Mart contends Velasco was fraudulently joined, arguing that the claims against him 28 cannot possibly survive because (1) Plaintiff’s IIED and NIED claims are preempted by

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1 California Workers’ Compensation Act (the “WCA”), and (2) Plaintiff cannot satisfy the 2 elements of those claims. (Dkt. 12 [Defendants’ Opposition to Plaintiff’s Motion to 3 Remand, hereinafter “Opp.”] at 2 –12.) The Court disagrees. 4 5 1. WCA Preemption 6 7 Wal-Mart argues that Plaintiff’s IIED and NIED claims are preempted by the 8 WCA. (NOR ¶ 30; Opp. at 11.) With a few exceptions not relevant here, the WCA is the 9 “exclusive remedy” for employee actions alleging injuries “against any other employee 10 of the employer acting within the scope of his or her employment[.]” Cal. Lab. Code 11 § 3601(a). This includes emotional injuries. See Livitsanos v. Superior Court, 2 Cal. 4th 12 744, 753 (1992) (“[C]ompensable injuries [under the WCA] may be physical, emotional 13 or both, so long as they are disabling.”). Accordingly, “claims for emotional distress 14 caused by the employer’s conduct causing distress such as discharge, demotion, 15 discipline or criticism” are generally “preempted by the [WCA], even when the 16 employer’s acts causing the distress are intentional or outrageous.” De Peralta v. Fox 17 Rest. Concepts, LLC, 2018 WL 748287, at *3 (C.D. Cal. Feb. 6, 2018) (quoting Onelum 18 v. Best Buy Stores L.P., 948 F. Supp. 2d 1048, 1054 (C.D. Cal. 2013)); Yau v. Santa 19 Margarita Ford, Inc., 229 Cal. App. 4th 144, 161 (2014) (“[E]motional injuries sustained 20 in the course of employment are preempted by the workers’ compensation scheme and 21 generally will not support an independent cause of action.”). 22 23 However, there are exceptions to WCA preemption for “conduct that contravenes 24 fundamental public policy” and that “exceeds the risks inherent in the employment 25 relationship.” Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 902 (2008) (quoting 26 Livitsanos, 2 Cal. 4th at 754). There is “no bright line test” for “determining what 27 behavior is part of the employment relationship or reasonably encompassed within the 28 compensation bargain,” and what is “so far out of the normal risks of the employment

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1 relationship as to be beyond the reach of Workers’ Compensation.” Ledezma v. Walmart 2 Inc., 2018 WL 6830492, at *3 (C.D. Cal. Dec. 21, 2018). However, discrimination and 3 retaliation fall outside the compensation bargain and therefore claims of intentional 4 infliction of emotional distress based on discrimination and retaliation are not subject to 5 workers’ compensation exclusivity. Light v. Dep’t of Parks & Recreation, 14 Cal. App. 6 5th 75, 101 (2017); see Saunders v. Sally Beauty Supply LLC, 2020 WL 1847620, at *2 7 (C.D. Cal. Apr. 10, 2020). 8 9 A plaintiff need not perfectly allege a claim that falls outside WCA preemption in 10 order to avoid a finding of fraudulent joinder. Indeed, courts in this district have given 11 significant leeway to plaintiffs whose pleadings did not explicitly tie their emotional 12 distress claim to conduct beyond the normal employment relationship where the courts 13 concluded it was possible that the plaintiffs could amend their pleadings to make that 14 connection. See, e.g., Hassler v. Talbots, Inc., 2019 WL 4221390, at *3 (C.D. Cal. Sept. 15 5, 2019) (rejecting fraudulent joinder argument based on WCA preemption because “it 16 is possible for Hassler to state a claim for IIED against [the nondiverse defendant] that 17 survives WCA preemption so long as she alleges discriminatory conduct which goes 18 beyond the normal employment relationship”) (emphasis in original); Ledezma v. 19 Walmart Inc., 2018 WL 6830492, at *4 (C.D. Cal. Dec. 21, 2018) (similar); Golda v. 20 Residence Inn by Marriott, LLC, 2019 WL 102375, at *3 (C.D. Cal. Jan. 4, 2019) 21 (rejecting fraudulent joinder argument and remanding where the plaintiff failed to 22 “explicitly tie his IIED claim to retaliation,” but “[i]f pled more carefully in a subsequent 23 amended complaint, these theories could possibly support a cause of action for IIED that 24 falls outside the normal employment relationship, and therefore outside of WCA 25 preemption”); Paleg v. Kmart Corp., 2017 WL 2974923, at *3 (C.D. Cal. July 11, 2017) 26 (remanding and concluding on this issue that “there is a non-fanciful possibility that 27 Plaintiff’s IIED claim against [the nondiverse defendant] is not barred by the WCA” 28

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1 because “there is still a possibility Plaintiff will be able to establish” that his termination 2 was due to age discrimination). 3 4 Plaintiff alleges that Defendants discriminated against her, retaliated against her, 5 and harassed her. She alleges that as a result of Defendants’ conduct, she suffered 6 “severe emotional distress, including, but not limited to, anxiety and depression.” 7 (Compl. ¶ 139.) There is a “non-fanciful possibility” that Plaintiff could amend her 8 complaint to show that the emotional distress she suffered was due to discriminatory, 9 retaliatory, or harassing conduct outside the normal employment relationship, if she does 10 not already allege that sufficiently. See Golda, 2019 WL 102375, at *3; Paleg v. Kmart 11 Corp., 2017 WL 2974923, at *3; De Peralta v. Fox Rest. Concepts, LLC, 2018 WL 12 748287, at *4 (C.D. Cal. Feb. 6, 2018) (rejecting fraudulent joinder argument based on 13 WCA preemption because assertions that Plaintiff was terminated because of an injury 14 were “sufficient to remove the IIED claim from the WCA’s preemptive effect because 15 they imply disability discrimination”); Walker v. Avis Rent A Car Sys., LLC, 2015 WL 16 13752943, at *6 (C.D. Cal. July 6, 2015) (rejecting fraudulent joinder and remanding 17 after concluding that “[b]ecause Plaintiff’s IIED claim is based on the conduct that arose 18 from alleged illegal disability discrimination, it is not preempted by the WCA”); Barsell 19 v. Urban Outfitters, Inc., 2009 WL 1916495, at *4 (C.D. Cal. July 1, 2009) (“Because 20 this claim is based on allegations of disability discrimination, there is a non-fanciful 21 possibility that the workers’ compensation exclusivity provisions do not bar Barsell’s 22 claim against [her manager].”) 23 24 2. Elements of the Claims 25 26 To state a claim for IIED, a plaintiff must show that (1) the defendant subjected 27 him to extreme and outrageous conduct; (2) the defendant’s intention of causing, or 28 reckless disregard of the probability of causing, emotional distress; (3) plaintiff suffered

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1 severe or extreme emotional distress; and (4) actual and proximate causation of the 2 emotional distress by defendant’s outrageous conduct. Cervantez v. J.C. Penney Co., 24 3 Cal. 3d 59, 593 (1979). To be outrageous, conduct “must be so extreme as to exceed all 4 bounds of that usually tolerated in a civilized society.” Trerice v. Blue Cross of Cal., 209 5 Cal. App. 3d 878, 883 (1989). 6 7 Defendants argue that Plaintiff fails to state a plausible claim for IIED because 8 plaintiff fails to sufficiently allege that the Velasco engaged in extreme or outrageous 9 conduct. (Opp. at 7–10.) That is not necessarily true. Plaintiff alleges that she told 10 Velasco she was worried about getting fired for her absences, that he gave her the 11 runaround, told her not to worry and that she did not need medical documentation, yet 12 nevertheless assessed her “points” that led to termination of her employment. This might 13 state a plausible claim for intentional infliction of emotional distress. Even if Plaintiff’s 14 current allegations are insufficient, it is possible that Plaintiff could cure any 15 insufficiencies in her complaint through amendment—a possibility that has led courts 16 to remand similar cases. See, e.g., De Peralta, 2018 WL 748287, at *5 (internal 17 quotations omitted). Indeed, “in other cases in which defendants have argued that a 18 supervisor’s alleged conduct was not sufficiently outrageous to support an intentional 19 infliction of emotional distress claim, district courts applying the fraudulent joinder 20 standard have generally found a non-fanciful possibility of liability, even where 21 plaintiff’s claim appeared relatively weak.” Id. (citing Burris v. AT & T Wireless, Inc., 22 2006 WL 2038040, at *2 (N.D. Cal. July 19, 2006)). 23 24 “[I]f there is any possibility that the state law might impose liability on a resident 25 defendant under the circumstances alleged in the complaint, the federal court cannot find 26 that joinder of the resident defendant was fraudulent, and remand is necessary.” Hunter, 27 582 F.3d at 1043. Because there is a non-fanciful possibility of liability against Velasco, 28 a finding of fraudulent joinder is inappropriate.

-7- ase 8:22-cv-01396-CJC-JDE Document Filed 09/19/22 Page 8of8 Page ID #:203 2 3. Fees 4 Plaintiff asks the Court to award her the attorney fees she incurred bringing this 5 |}motion. (Mot. at 24-25.) “An order remanding the case may require payment of just 6 ||costs and any actual expenses, including attorneys fees, incurred as a result of the 7 |{removal.” 28 U.S.C. § 1447(c). While the decision to award fees is in the Court’s broad 8 || discretion, “absent unusual circumstances, courts may award attorneys’ fees...only where 9 ||the removing party lacked an objectively reasonable basis for seeking removal.” Martin 10 || v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “[C]ourts have noted that part of 11 || the difficulty in relying upon workers’ compensation exclusivity to satisfy the fraudulent 12 || joinder standard is the lack of certainty in the law on this subject.” Saunders, 2020 WL 13 |] 1847620, at *2 (C.D. Cal. Apr. 10, 2020). While the Court concludes that Plaintiff could 14 |] assert a plausible claim against Velasco that is not preempted by the WCA, the Court 15 || does not find Wal-Mart’s arguments in support of removal objectively unreasonable. An 16 || award of fees is therefore not warranted. 17 ig ||} IV. CONCLUSION 19 20 For the foregoing reasons, the Court GRANTS Plaintiff's motion to remand and 21 ||, REMANDS this case to Orange County Superior Court. Each party shall bear its own 22 || costs. 23 4 DATED: September 19, 2022 Ko je 25 ff 26 CORMAC J. CARNEY 27 UNITED STATES DISTRICT JUDGE 28

8.