Case 5:22-cv-01738-SSS-KK Document 19 Filed 01/17/23 Page 1 of 7 Page ID #:419

1 J S - 6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No. 5:22-cv-01738-SSS-KKx

CLAUDIA GUZMAN LOPEZ,

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 MOTION TO REMAND [DKT. 15]

14 v. 15 16 CJ LOGISTICS AMERICA, LLC, et 17 al., Defendants. 18

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1 Before the Court is Plaintiff Claudia Guzman Lopez’s Motion to Remand 2 this Case to the Superior Court of the State of California for the County of 3 Riverside (the “Motion”). [Dkt. 15]. In her Motion, Lopez further requests the 4 Court award her attorney fees. [Dkt. 15-1 at 10–11]. The Motion is fully briefed 5 and ripe for consideration. [Dkts. 15, 16 & 17]. For the following reasons, 6 Lopez’s Motion is GRANTED. 7 I. BACKGROUND 8 On July 13, 2022, Lopez initiated this action in state court. [Dkt. 1-1]. 9 Lopez’s claims against Defendant CJ Logistics, LLC (“CJ Logistics”) include 10 (1) a violation of California Labor Code § 230.8; (2) a violation of the 11 California Family Rights Act, Gov. Code § 12945.2; (3) a violation of the 12 California Family Sick Leave Act; and (4) wrongful termination. [Dkt. 1-1]. 13 Lopez alleges that she had been working at CJ Logistics since 2013 and was 14 fired in 2021 “because she took time off to care for her daughter.” [Dkt. 1-1 at 15 4, ¶¶5–8]. Lopez further alleges that she has suffered “extreme and severe 16 anguish, humiliation, anger, tension, anxiety, depression, lowered self-esteem, 17 sleeplessness, and emotional distress. [Dkt. 1-1 at 7, ¶32]. Lopez’s prayer for 18 relief includes requests for reimbursement for lost wages and work benefits, 19 prejudgment interest on all amounts claimed, general and compensatory 20 damages, special damages, punitive damages, and attorney’s fees. [Dkt. 1-1 at 21 7–8]. 22 On September 2, 2022, CJ Logistics filed a demurrer or, in the alternative, 23 motion to strike Lopez’s Complaint in state court (the “demurrer”). [Dkt. 15-2 24 at 3, ¶6]. On September 6, 2022, Lopez provided CJ Logistics with a settlement 25 demand for $1,285,064.60. [Dkt. 16 at 3]. On September 21, 2022, Lopez filed 26 her opposition to CJ Logistics’ demurrer. [Dkt. 15-2 at 3, ¶9]. On September 27 28, 2022, CJ Logistics filed its reply. [Dkt. 15-2 at 3, ¶10]. On October 4, 28 -2- Case 5:22-cv-01738-SSS-KK Document 19 Filed 01/17/23 Page 3 of 7 Page ID #:421

1 2022, one day before the demurrer was set to be heard, CJ Logistics removed 2 the action to this Court. [Dkt. 1]; [Dkt. 15-2 at 3, ¶11]. 3 II. Legal Standard 4 Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of 5 which the district courts of the United States have original jurisdiction, may be 6 removed by the defendant. . .to the district court of the United States. . .” The 7 removal statutes are strictly construed and remand to the state court is to be 8 granted where there are doubts as to the right of removal. Jordan v. Nationstar 9 Mortg. LLC, 781 F.3d 1178, 1182 (9th Cir. 2015). District courts must remand 10 the case “[i]f at any time before final judgment it appears that the district court 11 lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c); see also Smith v. Mylan, 12 Inc., 761 F.3d 1042, 1044 (9th Cir. 2014). 13 Under 28 U.S.C. § 1446, defendants have two opportunities to file a 14 notice of removal. The first opportunity is “within 30 days after the receipt by 15 the defendant, through service or otherwise, of a copy of the initial pleading 16 setting forth the claim for relief upon which such action or proceeding is based.” 17 28 U.S.C. § 1446(b)(1). “If no ground for removal is evident in that pleading, 18 the case is ‘not removable’ at that stage.” Harris v. Bankers Life and Cas. Co., 19 425 F.3d 689, 694 (9th Cir. 2005). The second opportunity is: 20 if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the 21 defendant, through service or otherwise, of a copy of an amended 22 pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable. 23

24 28 U.S.C. § 1446(b)(3). Accordingly, where the complaint is indeterminate 25 about removal, defendants may remove the action within 30 days of receiving a 26 document or paper demonstrating the case is removable. Prado v. Dart 27 Container Corp. of California, 373 F. Supp. 3d 1281, 1285–86 (N.D. Cal. 28 2019). The Ninth Circuit further recognizes a third opportunity for defendant to -3- Case 5:22-cv-01738-SSS-KK Document 19 Filed 01/17/23 Page 4 of 7 Page ID #:422

1 file a notice of removal: where, during defendant’s own investigation, the 2 defendant uncovers information sufficient to demonstrate removability after the 3 expiration of the two statutory 30-day windows. Jakuttis v. Allstate Indem. Co., 4 No. EDCV 15-0624 JGB (KKx), 2015 WL 3442083, at *2 (C.D. Cal. May 27, 5 2015). 6 III. Discussion 7 Lopez argues this action should be remanded to state court because CJ 8 Logistics failed to properly remove this action within the statutory 30-day 9 window. [Dkt. 15-1 at 6–7]. Further, Lopez argues that CJ Logistics waived its 10 statutory right to removal when it filed its demurrer in the state court 11 proceeding. [Dkt. 15-1 at 10]. CJ Logistics argues Lopez’s Motion should be 12 denied because its removal to this Court was timely and it did not waive its 13 statutory right to removal. [Dkt. 16 at 4]. The Court addresses these arguments, 14 as well as Lopez’s request for attorney fees, below. 15 A. Timeliness of Removal 16 Lopez argues CJ Logistics’ removal was untimely because it was filed 78 17 days after it was served Lopez’s Complaint and therefore failed to meet the 18 statutory 30-day deadline. [Dkt. 15-1 at 9]. Specifically, Lopez contends that 19 the face of the Complaint made it clear that the amount in controversy exceeded 20 $75,000. [Dkt. 15-1 at 7–9]. CJ Logistics argues its removal was timely 21 because the Complaint failed to specify the amount in controversy. [Dkt. 16 at 22 4–7]. Further, CJ Logistics argues that once it became aware of the amount in 23 controversy, it filed its notice of removal within the required 30 days. [Dkt. 16 24 at 6–7]. For the following reasons, the Court finds that CJ Logistics’ removal 25 was untimely. 26 A defendant has the burden of establishing federal jurisdiction. Cal. ex 27 rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (citing Ethridge, 28 861 F.2d at 1393). Where a complaint does not indicate the amount in -4- Case 5:22-cv-01738-SSS-KK Document 19 Filed 01/17/23 Page 5 of 7 Page ID #:423

1 controversy, the removing defendant bears the burden of providing by a 2 preponderance of evidence that the amount in controversy exceeds $75,000. 3 Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005) (citing Singer v. 4 State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997)). Moreover, 5 a pleading need not identify a specific amount in controversy to trigger the first 6 30-day removal period pursuant to 28 U.S.C. § 1446(b)(1). Kroske, 432 F.3d at 7 980. The time for removal commences when a defendant is able to 8 “intelligently ascertain” that a plaintiff’s claim exceeds $75,000. Jellinek v. 9 Advance Prods. & Sys., Inc., No. 10cv1226 JM (WMC), 2010 WL 3385998, at 10 *1 (S.D. Cal. Aug. 24, 2010). “Thus, so long as the initial pleading enables the 11 defendant to intelligently ascertain removability, the case is removable, and the 12 thirty-day period begins at the time the defendant receives the complaint.” 13 Rodriguez v. Boeing Co., No. CV 14-04265-RSWL (AGRx), 2014 WL 14 3818108, at *4 (C.D. Cal. Aug. 1, 2014) (citing Mendoza v. Am. Airlines, No. 15 CV 10-7617 RSWL (JCx), 2010 WL 5376375, at *2 (C.D. Cal. Dec. 22, 2010). 16 Here, CJ Logistics’ removal was untimely. Lopez’s Complaint alleges 17 four causes of action stemming from her alleged wrongful termination from CJ 18 Logistics. [Dkt. 1-1 at 7–8]. Similar to Mendoza v. American Airlines, Inc., 19 2010 WL 5376375, at *3 (C.D. Cal. Dec. 22, 2010), Lopez states that she is 20 seeking damages from loss of income, loss of earning capacity, and loss of job 21 opportunity. [Dkt. 1-1 at 6, ¶24]. As in Mendoza, here the types of damages 22 sought by Lopez make it “intelligently ascertainable that the amount in 23 controversy exceeds the minimum amount. . .” 2010 WL 5376375, at *3 (C.D. 24 Cal. Dec. 22, 2010); see also Sanchez v. AMCO Insurance Co., No. 1:19-cv- 25 01633-NONE-SKO, 2020 WL 5362406, at *5 (“The district courts in these 26 cases have found, for instance, that claims by former employees for backpay 27 and a range of other monetary damages provided sufficient notice of the amount 28 in controversy despite not specifying a dollar amount in the complaint.”). For -5- Case 5:22-cv-01738-SSS-KK Document 19 Filed 01/17/23 Page 6 of 7 Page ID #:424

1 example, as Lopez’s former employer, CJ Logistics would have been aware of, 2 or at least reasonably capable of determining, Lopez’s lost wages and lost work 3 benefits. See, e.g., Sanchez v. AMCO Insurance Company, No. 1:19-cv-01633- 4 NONE-SKO, 2020 WL 5362406, at *5 (E.D. Cal. Sept. 8, 2020) (“The district 5 court in these cases have found, for instance, that claims by former employees 6 for backpay and a range of other monetary damages provided sufficient notice 7 of the amount in controversy despite not specifying a dollar amount in the 8 complaint.”); see also Rodriguez, No. CV 14-04265-RSWL, 2014 WL 3818108, 9 at *6 (“A defendant is not required to speculate facts that support removal 10 jurisdiction. However, a defendant is required to apply a reasonable amount of 11 intelligence in ascertaining removability.”). 12 Because the amount in controversy was intelligently ascertainable from 13 the Complaint, CJ Logistics’ removal period began to run when it received the 14 Complaint. Rodriguez, No. CV 14-04265-RSWL, 2014 WL 3818108, at *4. As 15 such, CJ Logistics removal was untimely. Moreover, because the Court finds 16 that the removal was untimely, the Court need not determine whether CJ 17 Logistics waived removal. 18 B. Attorney Fees 19 Under 28 U.S.C. § 1447(c), the Court has wide discretion to grant or deny 20 attorney fees when remanding a case. Moore v. Permanente Medical Group, 21 Inc., 981 F.2d 443, 447 (9th Cir. 1992); see 28 U.S.C. § 1447(c). Attorney fees 22 should be granted when the removing party lacked an objectively reasonable 23 basis for seeking removal. Martin v. Franklin Capitol Corp., 546 U.S. 132, 141 24 (2005) (“Absent unusual circumstances, courts may award attorney’s fees under 25 § 1447(c) only where the removing party lacked an objectively reasonable basis 26 for seeking removal. Conversely, when an objectively reasonable basis exists, 27 fees should be denied.”); see also Gardner v. UICI, 508 F.3d 559, 561 (9th Cir. 28 2007). -6- Case §:22-cv-01738-SSS-KK Document 19 Filed 01/17/23 Page 7of7 Page ID #:425

1 Here, the Court is inclined to grant Lopez’s request for attorney fees. The 2|| absence of a specific amount in controversy in the Complaint could create on its 3 || face some ambiguity as to whether the amount in controversy exceeds $75,000, 4 || however, within the four corners of the Complaint is sufficient information for 5 || CJ Logistics to intelligently ascertain the amount in controversy did exceed 6 || $75,000. Further, CJ Logistics, as the former employer with access to 7 {| employment documents, failed to reasonably engage in any investigation to & || further assess the amount in controversy based upon the details provided in the 9 || Complaint. 10 Moreover, after receiving information demonstrating that the amount in 11 || controversy exceeded $75,000, CJ Logistics waited 28 days to initiate the 12 || removal process. [Dkt. 16-1 at 2, 98]. As CJ Logistics fails to provide any facts □□ □□ suggesting that their conduct was objectively reasonable, the Court finds that Lopez is entitled to attorney fees. The Court grants Lopez attorney fees 15 consistent with the hourly rate provided in the briefing, totaling $2,100. [Dkt. 16) 15-1 at 11]. 17 IV. Conclusion 18 Accordingly, Lopez’s Motion [Dkt. 15] is GRANTED and CJ Logistics is 19 || ORDERED to pay Lopez’s attorney fees in the amount of $2,100. Further, the 20} Court ORDERS this case remanded to the Superior Court of the State of 21\| California in and for the County of Riverside. 22 23 IT IS SO ORDERED. 24 25 || Dated: January 17, 2023 ASE 20 SUNSHINE S#SYKES 27 United States District Judge 28 -7-