1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DISTRICT 11

ANGELICA VALENZUELA, )

12 ) Case No.: SACV 23-00817-CJC (JDEx) ) 13 ) Plaintiff, ) 14 ) v. ) 15 ) ORDER REMANDING ACTION TO

WAL-MART ASSOCIATES, INC.; ) STATE COURT

16 )

WALMART, INC.; ANGIE CAMPOS; )

17 and DOES 1 through 100, ) ) 18 ) Defendants. ) 19 ) ) 20 ) 21 22 I. INTRODUCTION & BACKGROUND 23 24 On May 10, 2023, Defendants Wal-Mart Associates, Inc., and Walmart, Inc. (the 25 “Wal-Mart Defendants”), removed this action from the Superior Court of California, 26 County of Los Angeles. (See Dkt. 1 [Notice of Removal, hereinafter “NOR”].) The 27 action involves employment-related claims by Plaintiff Angelica Valenzuela against the 1 “Angie Campos,” Valenzuela’s supervisor. (See id. at 2 n.2, id. ¶ 2.) Those claims 2 include (1) disability discrimination, (2) perceived disability discrimination, 3 (3) harassment, (4) failure to prevent and/or investigate, (5) retaliation, (6) failure to 4 provide accommodation, and (7) failure to engage in the interactive process, all in 5 violation of the California Fair Employment and Housing Act (“FEHA”). (See Dkt. 1-1 6 Ex. A [Complaint, hereinafter “Compl.”].) The claims also include (8) wrongful 7 termination in violation of public policy, (9) interference and failure to provide leave 8 under the California Family Rights Act (“CFRA”) (10) retaliation under the CFRA (11) 9 retaliation under California Labor Code, and (12) intentional infliction of emotional 10 distress (“IIED”). (See id.) 11 12 For the following reasons, the Court sua sponte REMANDS this action for lack of 13 removal jurisdiction. 14 15 II. LEGAL STANDARD 16 17 “Federal courts are courts of limited jurisdiction,” possessing “only that power 18 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 19 (internal quotations omitted). A defendant may remove to federal district court a civil 20 action brought in state court, but over which a federal court may exercise original 21 jurisdiction. See 28 U.S.C. § 1441(a). By statute, federal courts have diversity 22 jurisdiction over suits where more than $75,000 is in controversy if the citizenship of 23 each plaintiff is different from that of each defendant. See 28 U.S.C. § 1332(a). “[T]he 24 amount in controversy includes damages (compensatory, punitive, or otherwise), the 25 costs of complying with an injunction, and attorneys’ fees awarded under fee-shifting 26 statutes or contract.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 793 (9th 27 Cir. 2018). 1 The burden of establishing subject matter jurisdiction falls on the defendant. See 2 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). A notice of removal must include 3 only “a plausible allegation that the amount in controversy exceeds the jurisdictional 4 threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553–54, 5 (2014). But where “the plaintiff contests, or the court questions, the defendant’s 6 allegation” and “both sides submit proof,” the defendant must prove the amount in 7 controversy by a preponderance of the evidence. Id. at 554. 8 9 The removal statute is strictly construed against removal jurisdiction. See Gaus, 10 980 F.2d at 566. Indeed, “[f]ederal jurisdiction must be rejected if there is any doubt as 11 to the right of removal in the first instance.” Id. If the court determines that it lacks 12 subject matter jurisdiction, the action shall be remanded to state court. See 28 U.S.C. 13 § 1447(c). 14 15 III. ANALYSIS 16 17 The Court must remand this action because it was not an action that could have 18 been brought originally in federal court. The Wal-Mart Defendants removed predicated 19 solely on the existence of diversity jurisdiction, (see NOR ¶¶ 8–9), asserting in part that 20 the citizenship of Campa may be disregarded because she was fraudulently joined, (see 21 id. ¶ 15). Since the Court concludes that there was no fraudulent joinder, however, her 22 citizenship must be considered, so complete diversity is lacking. 23 24 It is true that, when there is a sufficient showing of fraudulent joinder, a court will 25 not consider the citizenship of the fraudulently joined party in determining whether there 26 is complete diversity. See Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, 548 27 (9th Cir. 2018). However, “a defendant invoking federal court diversity jurisdiction on 1 against [finding] fraudulent joinder.” Id. (internal quotations omitted). To establish 2 fraudulent joinder, a defendant must show that the defendant who purportedly destroys 3 complete diversity “cannot be liable on any theory.” Ritchey v. Upjohn Drug Co., 139 4 F.3d 1313, 1318 (9th Cir. 1998). This is an exacting standard—if there is any possibility 5 a state court would find that the complaint states a cause of action against the resident 6 defendant, “the federal court must find that the joinder was proper and remand the case to 7 the state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009). In 8 other words, for joinder to be fraudulent, the plaintiff must fail to state a cause of action 9 against the resident defendant, and the failure must be “obvious according to the settled 10 rules of the state.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). 11 Before finding fraudulent joinder, a court must also determine “whether a deficiency in 12 the complaint can possibly be cured by granting the plaintiff leave to amend.” Grancare, 13 889 F.3d at 549. 14 15 The Wal-Mart Defendants have failed to show that Campa was fraudulently joined. 16 They acknowledge that a plaintiff can bring a claim of harassment against individuals, 17 such as a manager or supervisor, but argue that the allegations in the complaint do not 18 give rise to “a viable claim against Defendant Campa.” (NOR ¶ 19.) “The elements [of a 19 prima facie claim of harassment] are: (1) plaintiff belongs to a protected group; 20 (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was 21 based on [the protected category]; (4) the harassment complained of was sufficiently 22 pervasive so as to alter the conditions of employment and create an abusive working 23 environment; and (5) respondeat superior.” Fisher v. San Pedro Peninsula Hosp., 262 24 Cal. Rptr. 842, 851 (Cal. Ct. App. 1989). Valenzuela alleges that “[i]mediately after 25 taking time off from work to treat her [back] injuries, . . . Campos[] threatened to fire her 26 in order to intimidate and frighten” her and said “that if she had to miss work due to her 27 injury, it would be her choice, but that this choice would mean” that she would “be 1 [Valenzuela] to ‘stop calling out’ each time [Valenzuela] missed work due to her injury 2 and related physical limitations, even though [Valenzuela] had advised [the defendants], 3 specifically, that her absences resulted from her injury and resulting disabilities.” 4 (Id. ¶ 20.) “Campos thereafter began treating [Valenzuela] poorly, deliberately ignoring 5 her, avoid eye contact with her, and specifically picking on her because she was injured 6 and had to miss work.” (Id. ¶ 21.) To the extent that these allegations are insufficient to 7 state a plausible claim, it is certainly not clear at this juncture that the claim is 8 categorically barred by settled rules of the state and no amendment could cure the 9 deficiency such that it is appropriate to deem the joinder fraudulent. 10 11 Removal also is improper because the Wal-Mart Defendants removed to the 12 incorrect division of the Central District of California. The general removal statute 13 provides that a “civil action brought in a State court of which the district courts of the 14 United States have original jurisdiction, may be removed by the defendant or the 15 defendants, to the district court of the United States for the district and division 16 embracing the place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis 17 added). The Wal-Mart Defendants completed their civil cover sheet incorrectly, as they 18 failed to indicate that the action was pending before removal in the Superior Court of 19 California, County of Los Angeles, such that the Western Division is the division to 20 which the case should be initially assigned. (See Dkt. 2 [Civil Cover Sheet].) As a result 21 of their failure, the case was removed to the Southern Division. Thus, the Wal-Mart 22 Defendants did not remove to the division embracing the Superior Court of California, 23 County of Los Angeles, as the removal statute requires. 24 // 25 // 26 // 27 // 1 CONCLUSION 2 3 For the foregoing reasons, the Court concludes that the Wal-Mart Defendants have 4 || failed to meet their burden to show removal jurisdiction, and the Court REMANDS this 5 |}action to the Superior Court of California, County of Los Angeles. 6 7 DATED: May 17, 2023 Ko je 9 Of 10 CORMAC J. CARNEY 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28