I. INTRODUCTION

17 On May 2, 2019, Plaintiff Israel Gonzalez Gallegos (“Gallegos”) filed this 18 action in the Superior Court of California, County of Riverside. (Notice of Removal 19 (“Notice”) ¶ 1, Ex. A (“Compl.”), ECF No. 1.) Defendants Shamrock Foods Co. 20 (“Shamrock”) and Randy Brown (“Brown”) (collectively, “Defendants”) removed the 21 matter based on alleged diversity jurisdiction. (See Notice ¶ 6.) Gallegos moves to 22 remand. (Mot. to Remand (“Mot.”), ECF No. 18.) The Court finds that it lacks 23 subject matter jurisdiction and consequently REMANDS the case to state court.1 24 25 26 27

28 1 After considering the papers filed in connection with the Motion to Remand, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 After receiving his right to sue letter2 from the California Department of Fair 3 Employment and Housing (“CDFEH”), Gallegos filed suit against Shamrock and 4 Brown for workplace discrimination and harassment based on his disability pursuant 5 to the California Fair Housing and Employment Act (“FEHA”). (Compl. ¶¶ 11–12.) 6 On or around April 15, 2017, Gallegos suffered an injury and was placed on work 7 restrictions. (Compl. ¶ 7.) Gallegos alleges that, despite the restrictions, Randy 8 Brown, Gallegos’s supervisor, required Gallegos to work eight-hour days and cover 9 his normal job duties, pressured him to remove his work restrictions, and caused him 10 to miss his doctor’s appointments. (Compl. ¶¶ 7, 8.) In mid-May, Gallegos requested 11 a day off to recover from his medical condition and was terminated the next day. 12 (Compl. ¶¶ 9, 10.) As a result of the job loss, Gallegos suffers from emotional stress 13 and economic hardship. (Compl. ¶ 11.) 14 15 III. LEGAL STANDARD 16 Federal courts have subject matter jurisdiction only as authorized by the 17 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 18 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court 19 may be removed to federal court only if the federal court would have had original 20 jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts have original 21 jurisdiction where an action arises under federal law or where each plaintiff’s 22 citizenship is diverse from each defendant’s citizenship and the amount in controversy 23 exceeds $75,000. Id. §§ 1331, 1332(a). 24

25 2 Gallegos requests the Court judicially notice his Complaint and attached exhibits. (Pl.’s Req. for Judicial Notice, ECF No. 18-3.) As the Court may take judicial notice of pleadings in this matter, 26 the Court GRANTS the request. See Molus v. Swan, No. 05cv452–MMA (WMc), 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (“Courts also may take judicial notice of their own records,” 27 citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.1986)); Vasserman v. Henry 28 Mayo Newhall Memorial Hosp., 65 F.Supp.3d 932, 943–44 (C.D. Cal. 2014) (taking judicial notice of the operative complaint in the action before the court). 1 The removal statute is strictly construed against removal, and “[f]ederal 2 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 3 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking 4 removal bears the burden of establishing federal jurisdiction. Id. 5 6 IV. DISCUSSION 7 Defendants invoke diversity as the basis of the Court’s subject matter 8 jurisdiction. (Notice ¶¶ 6, 27.) The Supreme Court “ha[s] consistently interpreted 9 § 1332 as requiring complete diversity: In a case with multiple plaintiffs and multiple 10 defendants, the presence in the action of a single plaintiff from the same State as a 11 single defendant deprives the district court of original diversity jurisdiction over the 12 entire action.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 13 (2005). Here, though Shamrock is an Arizona corporation, both Gallegos and 14 Defendant Brown are California residents. (Mot. 7; Notice ¶¶ 9–11.) Thus, complete 15 diversity is destroyed. However, Defendants argue that the Court should disregard 16 Brown’s citizenship because Defendants contend Brown was fraudulently joined to 17 the Complaint. (Notice ¶ 13.) 18 “An exception to the requirement of complete diversity exists where it appears 19 that a plaintiff has fraudulently joined a ‘sham’ non-diverse defendant.” Sanchez v. 20 Lane Bryant, Inc., 123 F. Supp. 3d 1238, 1241 (C.D. Cal. 2015). “If the plaintiff fails 21 to state a cause of action against a resident defendant, and the failure is obvious 22 according to the settled rules of the state, the joinder of the resident defendant is 23 fraudulent.” Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th 24 Cir. 2007) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 25 1987)); see also Padilla v. AT&T Corp., 697 F. Supp. 2d 1156, 1158 (C.D. Cal. 2009) 26 (“[A] non-diverse defendant is deemed a sham defendant if . . . the plaintiff could not 27 possibly recover against the party whose joinder is questioned.”). There is a general 28 presumption against fraudulent joinder and thus “[f]raudulent joinder must be proven 1 by clear and convincing evidence.” Hamilton Materials, 494 F.3d at 1206. 2 Merely showing that an action is likely to be dismissed against the alleged sham 3 defendant does not demonstrate fraudulent joinder. See Grancare, LLC v. Thrower ex 4 rel. Mills, 889 F.3d 543, 550 (9th Cir. 2018). The standard for establishing fraudulent 5 joinder is more exacting than for dismissal for failure to state a claim. Id. at 549. If 6 there is any “possibility that a state court would find that the complaint states a cause 7 of action against any of the resident defendants, the federal court must find that the 8 joinder was proper and remand the case to the state court.” Id. at 548 (quoting Hunter 9 v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009)). Courts should decline to 10 find fraudulent joinder where “a defendant raises a defense that requires a searching 11 inquiry into the merits of the plaintiff’s case, even if that defense, if successful, would 12 prove fatal.” Id. at 549–50. 13 Gallegos asserts only one claim against Brown for violation of FEHA, 14 specifically for harassment. (Compl. ¶¶ 25–30.) “Although the FEHA prohibits 15 harassment as well as discrimination, it treats them differently.” Reno v. Baird, 18 16 Cal. 4th 640, 644 (1998). Under FEHA, both the employer and the supervisor can be 17 held liable for harassment, but only the employer can be held liable for discrimination. 18 Id. at 644–45. This distinction is drawn because harassment is a type of conduct not 19 necessary to performance of a supervisor’s job, whereas personnel-management 20 decisions—which could be later considered discriminatory—will be. Id. at 645–46. 21 Hence, a supervisor faces personal liability only for conduct “outside the scope of 22 necessary job performance, conduct presumably engaged in for personal gratification, 23 because of meanness or bigotry, or for other personal motives.” Id. at 646; see also 24 Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013) 25 Courts in this District have found that aggrieved employees have sufficiently 26 plead, or could sufficiently plead after amendment, a superior’s conduct was 27 actionable as harassment. See e.g. Ybarra v. Universal City Studios, LLC, No. CV 13- 28 4976 PSG (AJWx), 2013 WL 5522009, at *5–6 (C.D. Cal. Oct. 2, 2013) (finding 1 conduct likely states claim for a harassment where plaintiff was passed over for 2 positions, wrongfully terminated, and singled out for negative treatment at near- 3 weekly meetings); Gonzalez v. J.S. Paluch Co., No. CV 12-08696 DDP (FMOx), 4 2013 WL 100210, at *6 (C.D. Cal. Jan. 7, 2013) (finding that conduct likely states a 5 claim for harassment where the supervisor confined plaintiff to two low quality sales 6 territories and refused to communicate with him); Suarez v. Am. Airlines, Inc., No. CV 7 09-03392 CAS (AJWx), 2009 WL 1657444, at *4 (C.D. Cal. June 10, 2009) (stating 8 “[i]t cannot be said as a matter of law that this alleged conduct was not ‘outside the 9 scope of necessary job performance” where the supervisor repeatedly denied plaintiff 10 the opportunity to return to work); Benton v. New Albertson’s, Inc., No. CV 08-3365 11 CAS (AJWx), 2008 WL 11340296, at *3 (C.D. Cal. July 24, 2008) (finding a single 12 allegation of a sign in the workplace stating, “‘nobody can authorize Debbie to switch 13 shifts because she is free labor,’ which, according to plaintiff, was a malicious act that 14 caused her to feel humiliated” could support a valid claim for harassment). 15 Defendants have not met their burden to prove fraudulent joinder by clear and 16 convincing evidence. Gallegos alleges that Brown required Gallegos to work eight- 17 hour days despite his injuries and cover his normal job duties, pressured him to 18 remove his work restrictions and caused him to miss his doctor’s appointments. A 19 jury could find that Brown exceeded the “scope of necessary job performance” in 20 repeatedly pushing Gallegos to complete tasks he was unfit to do and find Brown’s 21 conduct rises to the level of harassment. Thus, a possibility exists that a state court 22 would find that Gallegos states a viable cause of action against Brown. 23 Despite this, Defendants argue that Gallegos’s allegations are insufficient. 24 (Opp’n to Mot to Remand 7, ECF No. 20.) They argue that, given the information 25 available in the pleadings, motion papers, and Gallegos’s deposition testimony in a 26 related workers’ compensation matter, Gallegos could not possibly cure this 27 deficiency with amendment. (Opp’n 7.) The Court disagrees. Gallegos’s deposition 28 1 testimony3 regarding necessary accommodations does not preclude his claim that 2 Brown’s conduct amounts to harassment. Furthermore, Gallegos could amend his 3 Complaint to add factual allegations concerning Brown’s conduct which would bolster 4 the harassment claim. See Revay v. Home Depot U.S.A., Inc., No. 2:14-CV-03391- 5 RSWL (ASx), 2015 WL 1285287, at *3 (C.D. Cal. Mar. 19, 2015) (“If there is ‘any 6 possibility that the state law might impose liability on a resident defendant under the 7 circumstances alleged in the complaint,’ or in a future amended complaint, ‘the 8 federal court cannot find that joinder of the resident defendant was fraudulent, and 9 remand is necessary.’”) (emphasis added) (quoting Hunter, 582 F.3d at 1044); 10 Ontiveros v. Michaels Stores, Inc., No. CV 12–09437 MMM (FMOx), 2013 WL 11 815975, at *4–5 (C.D. Cal. Mar. 5, 2013), (“[T]he defendant must establish that 12 plaintiff could not amend his complaint to add additional allegations correcting any 13 deficiencies.”). 14 Defendants fail to show by clear and convincing evidence that no possibility 15 exists that a state court could find the complaint or a future amended complaint states 16 a claim against Brown. As such, the Court cannot find that joinder of Brown was 17 fraudulent. Accordingly, remand is necessary. 18 19 20 21 22 23 24

25 3 Defendants request judicial notice of excerpts from Gallegos’s deposition testimony. (Defs.’ Req. for Judicial Notice, ECF No. 22.) As the transcript does not contain the type of facts that are 26 generally judicially noticeable, the Court only GRANTS judicial notice to the existence of the related proceeding. See Fed. R. Evid. 201(b); see U.S. ex rel Robinson Rancheria Citizens Council 27 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (stating the court “may take notice of proceedings 28 in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”) 1 Vv. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Plaintiff's Motion to 3 || Remand. (ECF No. 18.) The Court REMANDS the action to the Superior Court of 4|| the State of California, County of Riverside, 4050 Main Street, Riverside, CA 92501. 5 The Court DENIES AS MOOT Defendants’ Motion to Dismiss. (ECF 6 || No. 11.) The Clerk of the Court shall close the case. 7 8 IT IS SO ORDERED. 9 10 November 12, 2019 1 . ig

B OTIS D. WRIGHT, II

4 UNITED STATES DISTRICT JUDGE

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