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2 3 CLERK, Us DIeERCT COURT

5 CW OF en 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION 10 11 || MONICA MUNOZ, Case No.: EDCV 20-01851-CJC(SPx) 12 Plaintiff, 14 ‘ ORDER SUA SPONTE REMANDING

CASE TO RIVERSIDE COUNTY

15 || ROSS AVIATION OPERATIONS, SUPERIOR COURT 16 || LLC, CLAUDIA ACEVES, and DOES 1 ) through 20, ) 17 ) 18 Defendants. 1 ) 20 ) ao) 21 22 23 || I. INTRODUCTION 24 25 On July 31, 2020, Plaintiff Monica Munoz filed this action in Riverside County 26 || Superior Court against Defendants Ross Aviation Operations, LLC (“Ross Aviation’), 27 ||Claudia Aceves, and unnamed Does. (Dkt. 2-1 [Complaint, hereinafter “Compl.”].) 28 || Plaintiff asserts eleven state-law causes of action against Ross Aviation, including

1 discrimination, retaliation, wrongful termination, hostile work environment, and failure to 2 accommodate in violation of California’s Fair Employment Housing Act (“FEHA”). (Id. 3 ¶¶ 48–158.) Plaintiff also asserts one cause of action against Claudia Aceves for 4 intentional infliction of emotional distress (“IIED”). (Id. ¶¶ 159–68.) 5 6 Plaintiff alleges that on January 22, 2020, while working for Ross Aviation, she 7 began to feel symptoms of morning sickness, including vomiting, dizziness, 8 lightheadedness, and exhaustion. (Id. ¶ 22.) Plaintiff notified her supervisor, Claudia 9 Aceves, and asked if she could leave work an hour early. (Id.) Aceves instructed 10 Plaintiff to take a pregnancy test immediately, while Plaintiff was at work, and required 11 Plaintiff to share the results with her. (Id. ¶¶ 23–32.) After hearing that Plaintiff was 12 pregnant, Aceves shared this news with Plaintiff’s supervisors and colleagues. (Id. ¶ 36.) 13 From then on, Aceves and Plaintiff’s supervisors began to treat her with “increased 14 hostility.” (Id. ¶ 37.) On February 22, 2020, about a month after taking the pregnancy 15 test at work, Plaintiff was fired. (Id. ¶ 38.) 16 17 On September 9, 2020, Ross Aviation filed a notice of removal, asserting diversity 18 jurisdiction under 28 U.S.C. § 1332. (Dkt. 2 [Notice of Removal, hereinafter “Notice”].) 19 Ross Aviation’s notice of removal concedes that the parties are not completely diverse 20 because both Plaintiff and Aceves are California citizens. (Id. at 2.) Still, Ross Aviation 21 argues that Aceves’ citizenship should be ignored for purposes of assessing diversity 22 jurisdiction because Aceves was fraudulently joined. (Id.) The Court is not persuaded. 23 For the following reasons, the Court sua sponte REMANDS this action to Riverside 24 County Superior Court. 25 26 // 27 1 2 “Federal courts are courts of limited jurisdiction,” possessing “only that power 3 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 4 (internal quotations omitted). A civil action filed in state court may be removed to a 5 federal district court when that federal court would have had original jurisdiction over the 6 action. 28 U.S.C. § 1441. Federal courts have diversity jurisdiction over cases where the 7 amount in controversy exceeds $75,000 and the citizenship of each plaintiff is different 8 from that of each defendant. 28 U.S.C. § 1332. The burden of establishing subject 9 matter jurisdiction falls on the defendant, and the removal statute is strictly construed 10 against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 11 Indeed, “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of 12 removal in the first instance.” Id. If at any time before final judgment, the court 13 determines that it lacks subject matter jurisdiction, the action shall be remanded to state 14 court. 28 U.S.C. § 1447(c). 15 16 Although diversity jurisdiction requires complete diversity of citizenship, there is 17 an exception to that requirement “where a non-diverse defendant has been fraudulently 18 joined.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). “Joinder is 19 fraudulent ‘if the plaintiff fails to state a cause of action against a resident defendant, and 20 the failure is obvious according to the settled rules of the state.’” Id. (quoting Hamilton 21 Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)). “A defendant 22 invoking federal court diversity jurisdiction on the basis of fraudulent joinder bears a 23 heavy burden since there is a general presumption against [finding] fraudulent joinder.” 24 Grancare, LLC v. Thrower by and through Mills, 889 F.3d 543, 548 (9th Cir. 2018) 25 (quotations omitted). Defendants can establish fraudulent joinder only by showing that 26 the defendant who purportedly destroys complete diversity “cannot be liable on any 27 theory.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998); Hunter v. 1 the state law might impose liability on a resident defendant . . . , the federal court cannot 2 find that joinder of the resident defendant was fraudulent, and remand is necessary.”) 3 4 IV. DISCUSSION 5 6 Plaintiff asserts one cause of action against Aceves for IIED. Ross Aviation argues 7 that Aceves was fraudulently joined because Plaintiff’s IIED claim against Aceves is 8 preempted by the California Workers’ Compensation Act (“WCA”). (Notice at 2.) The 9 Court disagrees. 10 11 With a few exceptions not relevant here, the WCA is the “exclusive remedy” for 12 employee actions alleging injuries “against any other employee of the employer acting 13 within the scope of his or her employment.” Cal. Lab. Code § 3601(a). This includes 14 emotional injuries. See Livitsanos v. Superior Court, 2 Cal. 4th 744, 753 (1992) 15 (“[C]ompensable injuries [under the WCA] may be physical, emotional or both, so long 16 as they are disabling.”). Accordingly, “claims for emotional distress caused by the 17 employer’s conduct causing distress such as discharge, demotion, discipline or criticism” 18 are generally “preempted by the [WCA], even when the employer’s acts causing the 19 distress are intentional or outrageous.” De Peralta v. Fox Rest. Concepts, LLC, 2018 WL 20 748287, at *3 (C.D. Cal. Feb. 6, 2018) (quoting Onelum v. Best Buy Stores L.P., 948 F. 21 Supp. 2d 1048, 1054 (C.D. Cal. 2013)); Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 22 4th 144, 161 (2014) (“[E]motional injuries sustained in the course of employment are 23 preempted by the workers’ compensation scheme and generally will not support an 24 independent cause of action.”). 25 26 However, there are exceptions to WCA preemption for “conduct that contravenes 27 fundamental public policy” and that “exceeds the risks inherent in the employment 1 (quoting Livitsanos, 2 Cal. 4th at 754). There is “no bright line test” for “determining 2 what behavior is part of the employment relationship or reasonably encompassed within 3 the compensation bargain” or what is “so far out of the normal risks of the employment 4 relationship as to be beyond the reach of Workers’ Compensation.” Ledezma v. Walmart 5 Inc., 2018 WL 6830492, at *3 (C.D. Cal. Dec. 21, 2018). But there is a “longstanding 6 view that unlawful discrimination and retaliation in violation of FEHA falls outside the 7 compensation bargain and therefore claims of intentional infliction of emotional distress 8 based on such discrimination and retaliation are not subject to workers’ compensation 9 exclusivity.” Light v. Dept. of Parks & Recreation, 221 Cal. Rptr. 3d 668, 689 (Cal. Ct. 10 App. 2017) (“A number of California authorities have concluded claims for intentional 11 infliction of emotional distress in the employment context may be asserted where the 12 actionable conduct also forms the basis for a FEHA violation.”).1 13 14 Here, Ross Aviation has failed to establish fraudulent joinder because the conduct 15 underlying Plaintiff’s IIED claim against Aceves also forms the basis for a FEHA 16 violation. See Light, 14 221 Cal. Rptr. 3d at 687. Plaintiff alleges that Aceves caused her 17 severe emotional distress by requiring Plaintiff to take a pregnancy test at work, requiring 18 Plaintiff to discuss the results of the test with her, and disclosing the results of that test to 19 Plaintiff’s supervisors and colleagues. (Compl. ¶¶ 23–37, 159–163.) Plaintiff also 20 alleges that because of her pregnancy, she was harassed, discriminated and retaliated 21 against, wrongfully terminated, and not reasonably accommodated in violation of FEHA. 22 (Id. ¶¶ 48–84, 94–101, 110–136.) Because Plaintiff’s IIED claim arises out of her FEHA 23 claims, her IIED claim is “not barred by the exclusivity provisions of [California’s] 24 workers’ compensation laws.” See Light, 221 Cal. Rptr. 3d at 687. Ross Aviation has 25 1 A plaintiff need not perfectly allege a claim that falls outside WCA preemption in order to avoid a 26 finding of fraudulent joinder. Indeed, courts in this district have given significant leeway to plaintiffs 27 whose pleadings did not explicitly tie their emotional distress claim to conduct beyond the normal employment relationship where the courts concluded it was possible that the plaintiffs could amend their 1 || thus failed to show that Aceves “cannot be liable on any theory.” See Ritchey, 139 F.3d 2 1318. Because the Court must consider Aceves’ citizenship, it concludes that 3 || diversity jurisdiction does not exist. 4 5 ||} V. CONCLUSION 6 7 For the foregoing reasons, the Court sua sponte REMANDS this action to 8 Riverside County Superior Court for lack of diversity jurisdiction. 9 10 11 DATED: — September 22, 2020 Ko Lo 12 JO 13 CORMAC4S. casey 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28