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

ARACELY MARTINEZ, )

11 ) Case No.: CV 20-02470-CJC (RAOx) ) 12 ) Plaintiff, ) 13 ) v. ) ORDER GRANTING PLAINTIFF’S 14 ) MOTION TO REMAND [Dkt. 19] AND RSCR CALIFORNIA, INC., a Delaware ) DENYING AS MOOT DEFENDANTS’ 15 ) MOTION TO DISMISS [Dkt. 12] Corporation; RES-CARE, INC., a ) 16 Kentucky Corporation; RESCARE ) CALIFORNIA, INC., d/b/a RCCA ) 17 ) SERVICES, a Delaware Corporation; ) 18 NANCY CADIZ, an Individual; RITA ) NOVAK, an Individual; and DOES 1-50, ) 19 ) inclusive, ) 20 ) ) 21 Defendants. ) ) 22 ) 23 24 I. INTRODUCTION & BACKGROUND 25 26 On February 7, 2020, Plaintiff Aracely Martinez brought this case in Los Angeles 27 County Superior Court against Defendants RSCR California, Inc., Res-Care, Inc., Res- 1 [Complaint, hereinafter “Compl.”].) Plaintiff asserts that she was wrongfully terminated 2 from her nursing job at Defendants’ long-term care facility for the developmentally 3 disabled after twenty-three years of service. (Id. ¶¶ 1–3.) Plaintiff felt that Defendants’ 4 facility lacked adequate staffing to safely and properly attend to all patients’ needs, so she 5 often skipped lunch and other breaks to avoid falling behind on her duties, which 6 included administering medications, feeding, and wound care. (Id. ¶ 15.) Cadiz, 7 Plaintiff’s former supervisor, and Novak, the facility’s manager, required her to clock out 8 as if she had taken a break anyway. (Id. ¶ 16.) She complained about understaffing, 9 being forced to choose to either take a break (and risk patient safety) or work without 10 breaks (yet still have to clock out), and other potentially unsanitary and unsafe 11 conditions, but was told she must “turn the other way.” (Id. ¶¶ 17–22.) Eventually, 12 Plaintiff was terminated, and Plaintiff alleges her termination was in retaliation for her 13 complaints. (Id. ¶ 23.) On March 13, 2020, Defendants removed Plaintiff’s case to this 14 Court, invoking diversity jurisdiction. (Dkt. 1 [Notice of Removal, hereinafter “NOR”].) 15 16 The parties in this case are not completely diverse. Like Plaintiff, the individual 17 defendants are citizens of California. (See Compl. ¶¶ 8, 12–13.) The corporate 18 defendants are citizens of Delaware and Kentucky. (NOR ¶¶ 19–23.) Defendants assert 19 that the individual defendants were fraudulently joined and that their citizenship should 20 be ignored for purposes of assessing diversity jurisdiction. (NOR ¶¶ 24–25.) 21 22 Before the Court are two related motions: Defendants’ motion to dismiss the 23 claims against the individual defendants (Dkt. 12) and Plaintiff’s motion to remand (Dkt. 24 19). For the following reasons, Plaintiffs’ motion to remand is GRANTED and 25 Defendants’ motion to dismiss is DENIED AS MOOT.1 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 II. LEGAL STANDARD 2 3 “Federal courts are courts of limited jurisdiction,” possessing “only that power 4 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 5 (internal quotations omitted). A civil action brought in state court, but over which a 6 federal court may exercise original jurisdiction, may be removed by the defendant to a 7 federal district court. 28 U.S.C. § 1441(a). By statute, federal courts have diversity 8 jurisdiction over suits where more than $75,000 is in controversy if the citizenship of 9 each plaintiff is different from that of each defendant. 28 U.S.C. § 1332(a). The burden 10 of establishing subject matter jurisdiction falls on the defendant, and the removal statute 11 is strictly construed against removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 12 566 (9th Cir. 1992). Indeed, “[f]ederal jurisdiction must be rejected if there is any doubt 13 as to the right of removal in the first instance.” Id. If at any time before final judgment, 14 the court determines that it lacks subject matter jurisdiction, the action shall be remanded 15 to state court. 28 U.S.C. § 1447(c). 16 17 Although diversity jurisdiction requires complete diversity of citizenship, there is 18 an exception to that requirement “where a non-diverse defendant has been fraudulently 19 joined.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). “Joinder is 20 fraudulent ‘if the plaintiff fails to state a cause of action against a resident defendant, and 21 the failure is obvious according to the settled rules of the state.’” Id. (quoting Hamilton 22 Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)). Conversely, 23 “if there is any possibility that the state law might impose liability on a resident defendant 24 under the circumstances alleged in the complaint, the federal court cannot find that 25 joinder of the resident defendant was fraudulent, and remand is necessary.” Id. at 1044. 26 27 // 1 III. ANALYSIS 2 3 Plaintiff asserts two claims against the individual defendants: intentional infliction 4 of emotional distress (“IIED”) and negligent infliction of emotional distress (“NIED”). 5 Defendants argue that the individual defendants were fraudulently joined and that these 6 claims cannot possibly survive for three reasons: (1) Plaintiff’s IIED and NIED claims 7 are preempted by California Workers’ Compensation Act (the “WCA”), (2) Plaintiff’s 8 claims against the individual defendants are impermissibly based on personnel 9 management decisions, and (3) Plaintiff fails to allege extreme or outrageous conduct. 10 The Court disagrees. 11 12 1. WCA Preemption 13 14 Defendants first argue that Plaintiff’s IIED and NIED claims are preempted by the 15 WCA. (NOR ¶ 25.a.; Dkt. 23 [Defendants’ Opposition to Plaintiff’s Motion to Remand, 16 hereinafter “Opp.”] at 5–10.) With a few exceptions not relevant here, the WCA is the 17 “exclusive remedy” for employee actions alleging injuries “against any other employee 18 of the employer acting within the scope of his or her employment[.]” Cal. Lab. Code 19 § 3601(a). This includes emotional injuries. See Livitsanos v. Superior Court, 2 Cal. 4th 20 744, 753 (1992) (“[C]ompensable injuries [under the WCA] may be physical, emotional 21 or both, so long as they are disabling.”). Accordingly, “claims for emotional distress 22 caused by the employer’s conduct causing distress such as discharge, demotion, 23 discipline or criticism” are generally “preempted by the [WCA], even when the 24 employer’s acts causing the distress are intentional or outrageous.” De Peralta v. Fox 25 Rest. Concepts, LLC, 2018 WL 748287, at *3 (C.D. Cal. Feb. 6, 2018) (quoting Onelum 26 v. Best Buy Stores L.P., 948 F. Supp. 2d 1048, 1054 (C.D. Cal. 2013)); Yau v. Santa 27 Margarita Ford, Inc., 229 Cal. App. 4th 144, 161 (2014) (“[E]motional injuries sustained 1 in the course of employment are preempted by the workers’ compensation scheme and 2 generally will not support an independent cause of action.”). 3 4 However, there are exceptions to WCA preemption for “conduct that contravenes 5 fundamental public policy” and that “exceeds the risks inherent in the employment 6 relationship.” Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 902 (2008) (quoting 7 Livitsanos, 2 Cal. 4th at 754). There is “no bright line test” for “determining what 8 behavior is part of the employment relationship or reasonably encompassed within the 9 compensation bargain,” and what is “so far out of the normal risks of the employment 10 relationship as to be beyond the reach of Workers’ Compensation.” Ledezma v. Walmart 11 Inc., 2018 WL 6830492, at *3 (C.D. Cal. Dec. 21, 2018). However, there is a 12 “longstanding view that unlawful . . . retaliation in violation of FEHA falls outside the 13 compensation bargain and therefore claims of intentional infliction of emotional distress 14 based on such . . . retaliation are not subject to workers’ compensation exclusivity.” 15 Light v. Dept. of Parks & Recreation, 14 Cal. App. 5th 75, 101 (2017). 16 17 A plaintiff need not perfectly allege a claim that falls outside WCA preemption in 18 order to avoid a finding of fraudulent joinder. Indeed, courts in this district have given 19 significant leeway to plaintiffs whose pleadings did not explicitly tie their emotional 20 distress claim to conduct beyond the normal employment relationship where the courts 21 concluded it was possible that the plaintiffs could amend their pleadings to make that 22 connection. See, e.g., Hassler v. Talbots, Inc., 2019 WL 4221390, at *3 (C.D. Cal. Sept. 23 5, 2019) (rejecting fraudulent joinder argument based on WCA preemption because “it 24 is possible for Hassler to state a claim for IIED against [the nondiverse defendant] that 25 survives WCA preemption so long as she alleges discriminatory conduct which goes 26 beyond the normal employment relationship”) (emphasis in original); Ledezma v. 27 Walmart Inc., 2018 WL 6830492, at *4 (C.D. Cal. Dec. 21, 2018) (similar); Golda v. 1 (rejecting fraudulent joinder argument and remanding where the plaintiff failed to 2 “explicitly tie his IIED claim to retaliation,” but “[i]f pled more carefully in a subsequent 3 amended complaint, these theories could possibly support a cause of action for IIED that 4 falls outside the normal employment relationship, and therefore outside of WCA 5 preemption”); Paleg v. Kmart Corp., 2017 WL 2974923, at *3 (C.D. Cal. July 11, 2017) 6 (remanding and concluding on this issue that “there is a non-fanciful possibility that 7 Plaintiff’s IIED claim against [the nondiverse defendant] is not barred by the WCA” 8 because “there is still a possibility Plaintiff will be able to establish” that his termination 9 was due to age discrimination). 10 11 Plaintiff alleges that she was retaliated against for complaining about 12 understaffing, the requirement that she clock out for meal and rest breaks even if she did 13 not take them, and other unsafe and unsanitary practices at Defendants’ facility. (Compl. 14 ¶¶ 3, 15–23.) Plaintiff further alleges that she suffered “severe emotional distress, 15 humiliation, embarrassment, loss of self-esteem, loss of enjoyment of life and activities, 16 mental and emotional distress and anxiety.” (Id. ¶ 52.) Although she does not connect 17 these allegations, there is a “non-fanciful possibility” that Plaintiff could amend her 18 complaint to show that the emotional distress she suffered was due to retaliatory conduct 19 outside the normal employment relationship. See Golda, 2019 WL 102375, at *3; Paleg 20 v. Kmart Corp., 2017 WL 2974923, at *3; De Peralta v. Fox Rest. Concepts, LLC, 2018 21 WL 748287, at *4 (C.D. Cal. Feb. 6, 2018) (rejecting fraudulent joinder argument based 22 on WCA preemption because assertions that Plaintiff was terminated because of an injury 23 were “sufficient to remove the IIED claim from the WCA’s preemptive effect because 24 they imply disability discrimination”); Walker v. Avis Rent A Car Sys., LLC, 2015 WL 25 13752943, at *6 (C.D. Cal. July 6, 2015) (rejecting fraudulent joinder and remanding 26 after concluding that “[b]ecause Plaintiff’s IIED claim is based on the conduct that arose 27 from alleged illegal disability discrimination, it is not preempted by the WCA”); Barsell 1 this claim is based on allegations of disability discrimination, there is a non-fanciful 2 possibility that the workers’ compensation exclusivity provisions do not bar Barsell’s 3 claim against [her manager].”) 4 5 2. Personnel Management Actions 6 7 Defendants argue that “[e]ven if Plaintiff could overcome the fatal impact of 8 workers’ compensation exclusivity, all of Plaintiff’s allegations against the Individual 9 Defendants in the Complaint suffer an additional, fatal flaw—they are based on mere 10 personnel management decisions that do not support claims for IIED or NIED.” (Opp. at 11 10; see NOR ¶ 25.b.) IIED claims based on personnel management decisions—even 12 where those decisions are based on improper motivation—are also barred by WCA 13 preemption. See Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996) 14 (“Managing personnel is not outrageous conduct beyond the bounds of human decency, 15 but rather conduct essential to the welfare and prosperity of society. A simple pleading 16 of personnel management activity is insufficient to support a claim of intentional 17 infliction of emotional distress, even if improper motivation is alleged.”). 18 19 As with WCA preemption based on exclusisivity, however, “a manager’s actions 20 going beyond normal personnel management decisions can give rise to IIED claims.” 21 Golda, 2019 WL 102375, at *4. For the same reasons described in the preceding section, 22 then, the Court cannot conclude that Plaintiff could not amend her complaint to plausibly 23 allege that the individual defendants’ actions were retaliatory and therefore beyond 24 normal personnel management decisions. See, e.g., id. (rejecting application of this 25 doctrine because “Plaintiff would likely be given the chance to amend the Complaint to 26 more plainly allege that he was terminated in retaliation for his decision to take leave to 27 care for his ailing father” which “potentially would bring Mejia’s actions outside the 1 conclusion that “Hassler’s FAC, as it currently appears, contains insufficient facts to 2 plausibly allege that Gomez took any egregious steps outside of her role as Talbots’ 3 regional loss prevention manager,” because there was a possibility that the plaintiff could 4 amend the complaint to contain sufficient facts). 5 6 3. Extreme and Outrageous Conduct 7 8 To state a claim for IIED, a plaintiff must show that (1) the defendant subjected 9 him to extreme and outrageous conduct; (2) the defendant’s intention of causing, or 10 reckless disregard of the probability of causing, emotional distress; (3) plaintiff suffered 11 severe or extreme emotional distress; and (4) actual and proximate causation of the 12 emotional distress by defendant’s outrageous conduct. Cervantez v. J.C. Penney Co., 24 13 Cal. 3d 59, 593 (1979). To be outrageous, conduct “must be so extreme as to exceed all 14 bounds of that usually tolerated in a civilized society.” Trerice v. Blue Cross of Cal., 209 15 Cal. App. 3d 878, 883 (1989). 16 17 Defendants argue that Plaintiff fails to state a plausible claim for IIED because 18 plaintiff fails to sufficiently allege that the individual defendants engaged in extreme or 19 outrageous conduct. (Opp. at 13.) But even if this is true, it is possible that Plaintiff 20 could cure any insufficiencies in her complaint through amendment—a possibility that 21 has led courts to remand similar cases. See, e.g., De Peralta, 2018 WL 748287, at *5 22 (internal quotations omitted). Indeed, “in other cases in which defendants have argued 23 that a supervisor’s alleged conduct was not sufficiently outrageous to support 24 an intentional infliction of emotional distress claim, district courts applying 25 the fraudulent joinder standard have generally found a non-fanciful possibility of liability, 26 even where plaintiff’s claim appeared relatively weak.” Id. (citing Burris v. AT & T 27 Wireless, Inc., 2006 WL 2038040, at *2 (N.D. Cal. July 19, 2006)). “[I]f there is any 1 || circumstances alleged in the complaint, the federal court cannot find that joinder of the 2 ||resident defendant was fraudulent, and remand is necessary.” Hunter, 582 F.3d at 1043. 3 4 CONCLUSION 5 6 For the foregoing reasons, the Court GRANTS Plaintiffs motion, and 7 || REMANDS this case to Los Angeles County Superior Court. Defendants’ motion to 8 ||dismiss is DENIED AS MOOT. 9 10 DATED: May 6, 2020 Jo i= 12 / ee 13 CORMAC J. CARNEY 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28