1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SASHA MINERVA CANU Case No. 2:24-cv-01434-WLH-KS 11 | MIRANDA,

ORDER DENYING PLAINTIFF’S

12 Plaintiff, MOTION FOR REMAND AND

GRANTING LEAVE TO AMEND

3] y DEFENDANT’S NOTICE OF al. REMOVAL [15]

CATCH OF LA OPERATING

15 | COMPANY LLC, a Delaware Corporation; and DOES | through 50; 16 | inclusive, 17 Defendants. 18 19 This matter comes before the Court on Plaintiff Sasha Minerva Canu Miranda’s 20 | (‘Plaintiff’) Motion to Remand (the “Motion’”). (Mot. to Remand, Docket No. 15). 21 | Defendant Catch of LA Operating Company, LLC (“Defendant”) filed its Opposition 22 | to Plaintiff's Motion (the “Opposition”). (Opp’n., Docket No. 17). Plaintiff 23 | subsequently filed her Reply in Support of the Motion (the “Reply’”’). (Reply, Docket 24 | No. 18). This matter is fully briefed. 25 On May 17, 2024, the Court held a hearing and heard oral arguments from both 26 | parties. 27 For the reasons discussed below, the Court DENIES Plaintiff's Motion without 28 | prejudice and GRANTS Defendant leave to amend its Notice of Removal.

1 I. BACKGROUND 2 A. Procedural Background 3 On January 19, 2024, Plaintiff filed this action in Los Angeles County Superior 4 Court (“LASC”) against Defendant and Does 1 through 10. (Parker Decl., Compl., 5 Docket No. 3-1, Exh. 1). The Complaint alleges the following causes of action for 6 various state law claims related to Plaintiff’s alleged wrongful termination: (1) 7 disability discrimination in violation of California Government Code § 12940, et seq; 8 (2) failure to provide reasonable accommodation under California Government Code § 9 12940, et seq; (3) failure to engage in good faith interactive process under California 10 Government Code § 12940, et seq; (4) retaliation in violation of California 11 Government Code § 12940, et seq; and (5) wrongful termination in violation of public 12 policy. (See generally id.). 13 On February 21, 2024, Defendant removed the case invoking this Court’s 14 diversity jurisdiction pursuant to 28 U.S.C. § 1332. (See Not. of Removal (“NOR”), 15 Docket No. 1). Based on Defendant’s state of incorporation and principal place of 16 business Defendant alleged that it is a foreign corporation headquartered in either 17 “Houston, Texas or New York City, New York” for purposes of diversity jurisdiction. 18 (Id. ¶ 13). 19 On March 28, 2024, Plaintiff filed the instant Motion seeking to remand this 20 matter to LASC. (Docket No. 15). Plaintiff also seeks attorneys’ fees in the amount 21 of $10,125 for work related to the instant Motion. (Decl. of Joshua M. Mohrsaz 22 (“Mohrsaz Decl.”), Docket No. 15-1 ¶ 9). Defendant filed its Opposition on April 26, 23 2024. (Docket No. 17). Subsequently, on May 1, 2024, Plaintiff filed her Reply. 24 (Docket No. 18). 25 B. Factual Background 26 Plaintiff is a resident of California who was formerly employed by Defendant in 27 Los Angeles County as a dishwasher from March 5, 2020, until on or about May 28 1 2021.1 (Docket No. 3-1 ¶ 1). Defendant is a limited liability company incorporated in 2 Delaware. (Id. ¶ 2). The parties dispute Defendant’s citizenship for purposes of 3 jurisdiction. According to Plaintiff, a review of the California Secretary of State 4 records indicates that Defendant’s sole member and manager is an entity named Top 5 Shelf, LLC. (Mohrsaz Decl., Exh. B). Plaintiff further contends that a review of the 6 California Secretary of State records for the entity Top Shelf, LLC shows that its 7 members are Angelo and Kathleen Orciuoli, who are both citizens of Palo Alto, 8 California. (Id., Exh. C). Conversely, Defendant contends that its members consist of 9 a chain of eight entities--seven limited liability corporations and one corporation— 10 starting with Top Shelf, LLC, a New York limited liability company and ending with 11 a Texas corporation called Fertitta Entertainment, Inc., with a principal place of 12 business in Texas. (Decl. of Dashiell Kohlhausen (“Kohlhausen Decl.”), Docket No. 13 17-2 ¶¶ 3–12). Defendant thus claims that it is a citizen of Texas for jurisdiction 14 purposes. 15 II. LEGAL STANDARD 16 A defendant may remove an action from state court to federal court if the 17 plaintiff could have originally filed the action in federal court. See 28 U.S.C. 18 § 1441(a). Under 28 U.S.C. § 1332, a district court has original jurisdiction over a 19 civil action where (1) the amount in controversy exceeds the sum or value of $75,000, 20 exclusive of interest and costs, and (2) the dispute is between “citizens of different 21 States.” Id. 22 Courts strictly construe the removal statutes, rejecting removal jurisdiction in 23 favor of remand to the state court if any doubts as to the right of removal exist. 24

25 1 There appears to be a discrepancy regarding Plaintiff’s last date of employment with Defendant. While the Complaint alleges that Plaintiff’s last date of 26 employment with Defendant was in May 2021, the NOR and attached declarations 27 state that Plaintiff’s last date of employment was April 14, 2022. (Compare Compl., Docket No. 3-1 ¶ 1 with NOR, Docket No. 1 ¶ 22). Because this is not relevant to the 28 Court’s analysis in the instant Motion, the Court will ignore this discrepancy. 1 Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012). The party seeking 2 removal bears the burden of establishing federal jurisdiction. Gaus v. Miles, Inc., 980 3 F.2d 564, 566 (9th Cir. 1992). “If at any time before final judgment it appears that the 4 district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. 5 § 1447(c). 6 III. DISCUSSION 7 A. Diversity of Citizenship 8 Plaintiff challenges the removal of this matter on the sole ground that 9 Defendant has not established diversity of citizenship between the parties. Plaintiff 10 first argues that Defendant applied the wrong standard in its NOR to determine the 11 diversity of the parties. Next, Plaintiff brings a factual challenge to Defendant’s 12 citizenship and argues that based on a review of California Secretary of State 13 documents, Defendant is in fact a California resident. The Court addresses both 14 arguments in turn. 15 i. Establishing Diversity of Citizenship 16 Plaintiff argues that Defendant’s NOR erroneously applied the standard for 17 determining citizenship of corporations, and not limited liability corporations. For 18 purposes of diversity jurisdiction, a corporation’s principal place of business is 19 defined as the place “where a corporation’s officers direct, control, and coordinate the 20 corporation’s activities,” i.e., “the corporation’s ‘nerve center.’” Hertz Corp. v. 21 Friend, 559 U.S. 77, 92–93 (2010); see also Harris v. Rand, 682 F.3d 846, 851 (9th 22 Cir. 2012) (“[A] principal place of business ‘should normally be the place where the 23 corporation maintains its headquarters—provided that the headquarters is the actual 24 center of direction, control, and coordination…”) (quoting Hertz, 559 U.S. at 92). 25 Conversely, limited liability corporations are treated “like a partnership,” and as such 26 are “citizen[s] of every state of which its owners/members are citizens.” Johnson v. 27 Columbia Props. Anchorage, LP, 437 F.3d 894 (9th Cir. 2006). 28 Here, Defendant is alleged to be a limited liability corporation. Plaintiff is 1 correct in that Defendant’s NOR erroneously applies the standard for determining 2 citizenship of corporations and alleges that jurisdictional diversity exists because 3 Defendant was incorporated in Delaware and its principal place of business is in 4 Texas. (Docket No. 1 ¶¶ 13–14). As such, the Court finds that Defendant failed to 5 apply the appropriate standard, which would have required analyzing the citizenship 6 of each of the limited liability corporation’s members. 7 The Court’s analysis does not end here, however. A court may also consider 8 supplemental evidence proffered by a removing defendant, which was not originally 9 included in the NOR. Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002). 10 Defendant’s Opposition seeks to remedy the above-identified deficiency by providing 11 a declaration from Dashiell Kohlhausen, deputy general counsel to Fertitta 12 Entertainment, LLC—an entity affiliated with Defendant—attesting to Defendant’s 13 corporate structure. (Kohlhausen Decl., Docket No. 17-2 ¶ 3). Specifically, the 14 declaration explains that Defendant’s corporate structure is comprised of a series of 15 related entities including seven limited liability corporations and one corporation 16 starting with Top Shelf, LLC, a New York limited liability company and ending with 17 a Texas corporation called Fertitta Entertainment, Inc. (Id. ¶¶ 3–12). Defendant 18 further alleges that because Fertitta Entertainment, LLC. is incorporated in Texas and 19 has a principal place of business in Texas, for diversity purposes, Defendant is a Texas 20 corporation. (Id. at 5). 21 ii. Plaintiff’s Factual Challenge 22 Plaintiff presents a factual challenge to Defendant’s purported foreign 23 citizenship by submitting a declaration from its counsel, Joshua M. Mohrsaz, 24 containing California Secretary of State filings, which indicate that Defendant is in 25 fact a California citizen. (Mohrsaz Decl. ¶ 5, Exhs. B–C). The document states that 26 Defendant’s sole manager or member is an entity called Top Shelf Holdings, LLC. 27 (Id.). Plaintiff also provides a second Statement of Intention filing from the California 28 Secretary of State for an entity called Top Shelf Holdings, LLC, which states that its 1 sole members are two individuals located in Palo Alto, California. (Id., Exh. C). 2 Based on these two filings, Plaintiff argues that Defendant is in fact a California 3 citizen and thus lacks diversity of citizenship.2 Plaintiff’s attempt to rebut 4 Defendant’s claimed foreign citizenship contains flawed logic and is unsupported by 5 the record. Plaintiff assumes, without any support, that the California Secretary of 6 State filing for the entity Top Shelf Holding, LLC is the same entity as the Top Shelf 7 Holding, LLC entity listed in Defendant’s filings. The filing for Defendant’s 8 company, however, lists on its Statement of Information that Top Shelf Holdings, 9 LLC has an address located in Texas, which is consistent with Defendant’s contention 10 that the ultimate member for Top Shelf Holdings, LLC is Fertitta Entertainment, a 11 Texas corporation. (Docket No. 15-1, Exh. B). 12 “When the plaintiffs' motion to remand raises a factual challenge by 13 ‘contest[ing] the truth of the [remover's] factual allegations, usually by introducing 14 evidence outside the pleadings,’ however, the remover ‘must support her jurisdictional 15 allegations with ‘competent proof’ ... under the same evidentiary standard that governs 16 in the summary judgment context.’” DeFiore v. SOC LLC, 85 F.4th 546, 552–53 (9th 17 Cir. 2023) (citing Leite v. Crane Co., 749 F.3d 1117, 1121–22 (9th Cir. 2014)). Rule 18 56, which governs motions for summary judgment provides that “[a]n affidavit or 19 declaration used to support or oppose a motion [for summary judgment] must be made 20 on personal knowledge [and] set out facts that would be admissible in evidence....” 21

22 2 Plaintiff improperly seeks to admit extrinsic evidence—i.e., the California 23 Secretary of State filings—without first requesting judicial notice of these documents. Despite this misstep, the Court will sua sponte take judicial notice of these documents 24 as the documents are purportedly from the California Secretary of State’s website, which is a government publication, part of the public record, and not subject to 25 reasonable dispute. See e.g. L'Garde, Inc. v. Raytheon Space & Airborne Sys., 805 F. Supp. 2d 932, 938 (C.D. Cal. 2011) (“[T]he accuracy of the results of records searches 26 from the Secretary of State for the State of California corporate search website can be 27 determined by readily accessible resources whose accuracy cannot reasonably be questioned.”). Further, Defendant does not directly dispute the accuracy of these 28 records. 1 Fed. R. Civ. P. 56(c)(4). 2 Here, Defendant’s declaration constitutes competent proof as it is a declaration 3 from corporate counsel for an entity that controls Defendant, made under oath and 4 based on the individual’s personal knowledge of Defendant’s affiliated entity’s 5 corporate structure and filings. See, e.g. Morse v. G4S Secure Sols. (USA), Inc., No. 6 21-CV-413-CAB-BLM, 2021 WL 1625160, at *1 (S.D. Cal. Apr. 27, 2021) (finding 7 that a declaration from a human resources director stating that a defendant’s 8 headquarters is in Jupiter, Florida was competent proof); see also Petropolous v. FCA 9 US, LLC, No. 17-CV-0398 W (KSC), 2017 WL 2889303, at *3 (S.D. Cal. July 7, 10 2017) (finding that a declaration from a senior in-house counsel regarding the 11 corporate structure of a parent company had sufficient foundation as the attorney 12 “knows under which laws his employer’s sole member was incorporated” and was not 13 hearsay). 14 Plaintiff objects to Defendant’s declaration as inadmissible hearsay and 15 improper under California Rule of Evidence § 412.3 (Docket No. 18 at 3). The Court 16 overrules Plaintiff’s objections. Pursuant to the Federal Rules of Evidence 801(c), 17 hearsay “means a statement that: (1) the declarant does not make while testifying at 18 the current trial or hearing; and (2) a party offers in evidence to prove the truth of the 19 matter asserted in the statement.” Mr. Kohlhausen’s statements regarding Defendant’s 20 company structure are not hearsay and are instead based on personal knowledge 21 gained through Mr. Kohlhausen’s role as deputy general counsel. (Kohlhausen Decl. 22

23 3 As to Cal. Evid. Code § 412, Plaintiff argues that Defendant’s failure to provide any evidence to rebut Plaintiff’s claims presumes that Defendant lacks any 24 evidence to support its claims. Specifically, Cal. Evid. Code § 412 states, “[i]f weaker and less satisfactory evidence is offered when it was within the power of the party to 25 produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” Notably, Defendant did not provide any other evidence of 26 Defendant’s corporate structure including the articles of incorporation or other filings, 27 which would have aided in Defendant’s jurisdictional allegations. Nevertheless, the Court finds that Mr. Kohlhausen’s declaration is sufficient to establish jurisdiction for 28 the instant Motion. 1 ¶ 2). The declaration explains that due to his position, Mr. Kohlhausen has 2 “knowledge of [Defendant] and its affiliated entities corporate structure and fillings 3 [sic].” (Id.). As to Plaintiff’s objection under Cal. R. of Evid. § 412, the Court finds 4 this unavailing. Plaintiff fails to explain why California’s evidentiary rules apply in 5 the instant matter. Notably, even at this phase of the proceedings, evidence that is not 6 “presented in an admissible form in the context of a motion for summary judgment… 7 but may be presented in an admissible form at trial, a court may still consider that 8 evidence.” Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Accordingly, the 9 Court DENIES Plaintiff’s Motion because Defendant has provided competent 10 evidence to establish that diversity of citizenship between the parties exists. 11 B. Amendment of NOR 12 While Defendant did apply the wrong standard in its NOR, Defendant argues 13 that the proper remedy is not remand, but rather an amendment of its NOR. (Id. at 6). 14 Plaintiff argues that Defendant should not be granted leave to amend its NOR to 15 remedy this defect because it would allow Defendant to impermissibly change the 16 entire basis of Defendant’s diversity jurisdiction allegations. (Docket No. 18 at 6–7). 17 Pursuant to 28 U.S.C. § 1446, a removing defendant may freely amend a notice of 18 removal before the expiration of the initial thirty-day period. See, e.g. Smiley v. 19 Citibank (S.Dakota), N .A., 863 F.Supp. 1156, 1158 (C.D.Cal.1993). “After the first 20 thirty days, however, the cases indicate that the petition may be amended only to set 21 out more specifically grounds for removal that already have been stated, albeit 22 imperfectly, in the original petition; new grounds may not be added and missing 23 allegations may not be furnished.” Id. at 1159 (citing 14A C. Wright, A. Miller, E. 24 Cooper, Federal Practice & Procedure § 3733 (2d ed.1985)). “The majority of courts, 25 for example, allow defendants to amend ‘defective allegations of jurisdiction’ in their 26 notice as long as the initial notice of removal was timely filed and sets forth the same 27 legal grounds for removal.” Id. (citing Barrow Dev. Co. v. Fulton Ins. Co., 418 F.2d 28 316, 318 (9th Cir.1969) (permitting amendment of removal petition to cure inadequate 1 allegation of the citizenship of the defendant corporation)). 2 Here, Defendant timely removed this matter based on diversity jurisdiction but 3 misstated the citizenship of all of its members consistent with Ninth Circuit 4 requirements for diversity jurisdiction involving limited liability corporations. 5 Several cases in this district have similarly permitted defendants to amend their 6 removal allegations to cure similar defects. See, e.g., Luehrs v. Utah Home Fire Ins. 7 Co., 450 F.2d 452, 454 (9th Cir. 1971) (granting leave to amend removal petition, 8 where defendant corporation removed on the basis of diversity jurisdiction, but failed 9 to state plaintiff's state of citizenship and principal place of business); Barrow Dev., 10 418 F.2d at 318 (allowing amendment where defendant corporation removed on the 11 basis of diversity jurisdiction and merely stated that it was a citizen of New York, 12 rather than disclosing its state of incorporation and principal place of business); 13 London v. Standard Oil Co. of California, 417 F.2d 820, 822 (9th Cir. 1969) 14 (permitting amendment of removal petition to cure inadequate allegation of the 15 citizenship of the defendant corporation). Accordingly, the Court GRANTS 16 Defendant leave to amend its NOR. 17 C. Attorneys’ Fees 18 In conjunction with his Motion for Remand, Plaintiff seeks attorneys’ fees 19 pursuant to 28 U.S.C. § 1447(c). Under 28 U.S.C. § 1447(c), “[a]n order remanding 20 the case may require payment of just costs and any actual expenses, including attorney 21 fees, incurred as a result of the removal.” “Absent unusual circumstances, courts may 22 award attorney's fees under § 1447(c) only where the removing party lacked an 23 objectively reasonable basis for seeking removal. Conversely, when an objectively 24 reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 25 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). Here, the Court has denied 26 Plaintiff’s Motion, so it must deny Plaintiff’s attorney’s fees request as well. Cf. 27 Johnson v. Wells Fargo & Co., No. CV 14-06708 MMM JCX, 2014 WL 6475128, at 28 *13 (C.D. Cal. Nov. 19, 2014) (“Removal is not objectively unreasonable solely 1 | because the removing party's arguments lack merit and the removal is ultimately 2 | unsuccessful.”) (internal quotation marks and citations omitted). Accordingly, the 3 | Court DENIES Plaintiff's request for attorneys’ fees. 4] IV. CONCLUSION 5 For the foregoing reasons, the Court DENIES Plaintiff's Motion without 6 | prejudice and GRANTS leave for Defendant to amend its NOR. 7 IT IS SO ORDERED. 8 en g | Dated: May 17, 2024 Naf —

HON. WESLE¥L. HSU

10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10