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6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 DELILAH MERFALEN Case No. 2:20-cv-08542-JWH-AFMx

GUTIERREZ,

12 DELILAH ANISSAH GUTIERREZ,

DANIEL FRANCISCO GUTIERREZ, ORDER GRANTING PLAINTIFFS’

13 and MOTION TO REMAND [Dkt. SERENA BELLA GUTIERREZ, as No. 16] 14 wrongful death beneficiaries of Decedent Daniel Ramon Gutierrez, 15 Plaintiffs, 16 v. 17

GLEN EARL WHITLEY,

18 PRAZAIR DISTRIBUTION, INC., and

HERIBERTO HERNADEZ,

19 Defendants. 20 21 22 23 24 25 26 27 1 Before the Court is the motion of Plaintiffs Delilah M. Gutierrez, Delilah 2 A. Gutierrez, Daniel F. Gutierrez, and Serena B. Gutierrez to remand this action 3 to the Superior Court of California, County of Los Angeles.1 The Court finds 4 this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; 5 L.R. 7-15. After considering the papers filed in support of and in opposition to 6 the Motion,2 the Court orders that the Motion is GRANTED, for the reasons 7 set forth herein. 8 I. BACKGROUND 9 A. Factual Allegations3 10 Plaintiffs seek to recover for wrongful death arising from a multi-vehicle 11 traffic collision on California State Route 60 (“SR 60”). Plaintiffs allege that at 12 around 8:00 p.m. on July 10, 2018, Plaintiffs’ decedent, Daniel Ramon 13 Gutierrez, was riding his Harley Davidson motorcycle eastbound on the SR 60 14 freeway, east of Grand Avenue.4 Defendant Heriberto Hernandez was driving 15 behind and to the right of Gutierrez in an “older model, red Freightliner” 16 tractor trailer.5 Then, as Hernandez merged into the lane to his right, 17 Hernandez collided with a red Toyota Corolla, driven by Diana Laura Leon 18 Garcia.6 Garcia is not named as a party in this action.7 Garcia subsequently 19 collided with another vehicle to her right, a 2016 white tractor trailer operated 20 1 Pls.’ Mot. to Remand (the “Motion”) [Dkt. No. 16]. 21 2 The Court considered the following papers: (1) Notice of Removal [Dkt. 22 No. 1]; (2) Decl. of Christopher D. Nissen (the “Nissen Decl.”) [Dkt. No. 5] (including its attachments); (3) the Motion and Mem. of P. & A. in Supp. of the 23 Motion [Dkt. No. 16-1] (including its attachments); (3) Mem. P. & A. in Supp. of Defs.’ Opp’n to the Motion (the “Opposition”) [Dkt. No. 20]; and (4) Pls.’ 24 Reply in Supp. of the Motion (the “Reply”) [Dkt. No. 21]. 3 The Court restates Plaintiffs’ allegations for context, but it makes no 25 determination regarding their veracity at this stage of the case. 26 4 See Nissen Decl. ¶ 4, Ex. 1 (the “Complaint”), ¶ 2. 5 Complaint ¶ 2. 27 6 Id. 1 by Defendant Glen Whitley and owned by Defendant Praxair Distribution, Inc.8 2 Garcia veered back to her left, collided into the median divider, and then into 3 Gutierrez’s motorcycle. Gutierrez suffered severe injuries in the collision, and, 4 tragically, he succumbed to those injuries.9 5 Plaintiffs allege that, at all relevant times, Whitley was an agent and 6 employee of Praxair and that Whitley was acting in the course and scope of his 7 employment at the time of the subject incident.10 Plaintiffs are each residents of 8 Riverside County, California.11 Hernandez is, and was at the time of the subject 9 incident accident, a resident of Riverside County, California.12 Whitley is, and 10 was at all relevant times, a resident of the Maricopa County, Arizona.13 Praxair 11 is a Delaware corporation with its principal place of business in Danbury, 12 Connecticut.14 13 B. Procedural Background 14 Plaintiffs filed their Complaint in the Los Angeles County Superior Court 15 on July 10, 2020.15 Plaintiffs assert a single claim for relief for Wrongful Death 16 premised upon a theory of negligence against all Defendants collectively.16 On 17 September 16, Defendants removed the action to this Court pursuant to 28 18 U.S.C. § 1441(b), asserting diversity jurisdiction under 28 U.S.C. § 1332(a).17 In 19

20 8 Id. at ¶ 2. 9 Id. 21 10 Id. at ¶ 12. 22 11 Id. at ¶¶ 4–7. 23 12 Id. at ¶ 9. 13 Id. at ¶ 10; see also Notice of Removal 5:17–18. 24 14 Notice of Removal 5:19–26. 25 15 Complaint. 26 16 See id. at ¶¶ 15 & 17–30 (the Court notes that the paragraphs of Plaintiffs’ Complaint after Paragraph 16 are mis-numbered. For reference, the allegations 27 in support of Plaintiffs’ claim for relief for Wrongful Death appear on pages 5:1– 7:16 of the Complaint); see also Notice of Removal 3:8–9. 1 their Notice of Removal, Defendants contend that Hernandez is a “sham” 2 defendant and, therefore, that Hernandez’s citizenship should be disregarded 3 for the purpose of evaluating diversity jurisdiction.18 Plaintiffs filed the instant 4 Motion on October 19, and it is fully briefed. 5 II. LEGAL STANDARD 6 A. Removal Jurisdiction 7 Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey 8 possess only that power authorized by Constitution and statute.” Kokkonen v. 9 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In every federal case, the 10 basis for federal jurisdiction must appear affirmatively from the record. See 11 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). “The right of 12 removal is entirely a creature of statute and a suit commenced in a state court 13 must remain there until cause is shown for its transfer under some act of 14 Congress.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal 15 quotation marks omitted). Where Congress has acted to create a right of 16 removal, those statutes, unless otherwise stated, are strictly construed against 17 removal jurisdiction. See id. Unless otherwise expressly provided by Congress, 18 “any civil action brought in a State court of which the district courts of the 19 United States have original jurisdiction, may be removed by the defendant or the 20 defendants, to the district court.” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724 21 F.3d 1249, 1252 (9th Cir. 2013) (same) (internal quotation marks omitted). 22 To remove an action to federal court under § 1441(a), the removing 23 defendant “must demonstrate that original subject-matter jurisdiction lies in the 24 federal courts.” Syngenta, 537 U.S. at 33. In other words, the removing 25 defendant bears the burden of establishing that removal is proper. See Abrego 26 Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (noting the 27 1 “longstanding, near-canonical rule that the burden on removal rests with the 2 removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) 3 (“The strong presumption against removal jurisdiction means that the 4 defendant always has the burden of establishing that removal is proper.” 5 (internal quotation marks omitted)). Any doubts regarding the existence of 6 subject matter jurisdiction must be resolved in favor of remand. See id. 7 (“Federal jurisdiction must be rejected if there is any doubt as to the right of 8 removal in the first instance.”). 9 III. DISCUSSION 10 As noted above, Defendants removed the action to this Court pursuant to 11 28 U.S.C. § 1441(b), asserting diversity jurisdiction under 28 U.S.C. § 1332(a).19 12 Section 1332 requires complete diversity of citizenship; each of the plaintiffs 13 must be a citizen of a different state than each of the defendants. Caterpillar Inc. 14 v. Lewis, 519 U.S. 61, 68 (1996); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 15 L. Ed. 435 (1806). There is an exception to the complete diversity requirement, 16 however, where a non-diverse defendant has been “fraudulently joined.” See, 17 e.g., McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). 18 Seeking to invoke this exception, Defendants contend that this Court has 19 jurisdiction because Hernandez, who is not diverse from Plaintiffs, is a 20 fraudulently joined defendant. In moving that the action be remanded to 21 California state court, Plaintiffs contend that their allegations with respect to 22 Hernandez’s involvement in the subject incident and his potential liability are 23 adequately supported. Therefore, Plaintiffs argue, Hernandez is a proper 24 defendant and the action must be remanded in view of the absence of complete 25 diversity. 26 27 1 Fraudulent joinder “is a term of art.” Morris v. Princess Cruises, Inc., 236 2 F.3d 1061, 1067 (9th Cir. 2001) (quoting McCabe, 811 F.2d at 1339). The Ninth 3 Circuit has explained that “[j]oinder of a non-diverse defendant is deemed 4 fraudulent, and the defendant’s presence in the lawsuit is ignored for purposes 5 of determining diversity, ‘[i]f the plaintiff fails to state a cause of action against a 6 resident defendant, and the failure is obvious according to the settled rules of the 7 state.’” Id. (quoting McCabe, 811 F.2d at 1339). In this regard, the removing 8 defendant “is entitled to present the facts showing the joinder to be fraudulent.” 9 McCabe, 811 F.2d at 1339. Here, because Hernandez, like Plaintiffs, is a citizen 10 of California, his presence in the lawsuit at the time of removal defeats diversity 11 jurisdiction unless Defendants show that Hernandez was fraudulently joined. 12 Defendants bear a heavy burden; they must prove fraudulent joinder by 13 clear and convincing evidence. Hamilton Materials, Inc. v. Dow Chem. Corp., 494 14 F.3d 1203, 1206 (9th Cir. 2007) (citing Pampillonia v. RJR Nabisco, Inc., 138 F.3d 15 459, 461 (2d Cir. 1998)) (fraudulent joinder must be proved by clear and 16 convincing evidence); see also Gaus, 980 F.2d at 566 (defendant always has the 17 burden of establishing that removal is proper). To sustain their burden, 18 Defendants must prove there is “no possibility” that Plaintiffs will be able to 19 establish their claim against Hernandez. Good v. Prudential Ins. Co. of America, 5 20 F. Supp. 2d 804, 807 (N.D. Cal. 1998) (citing Dodson v. Spiliada Mar. Corp., 951 21 F.2d 40, 42(5th Cir. 1992)). In this regard, “[t]he standard is not whether 22 plaintiffs will actually or even probably prevail on the merits, but whether there 23 is a possibility that they may do so.” Lieberman v. Meshkin, Mazandarani, 24 No. 96-cv-03344, 1996 WL 732506, at *3 (N.D. Cal. Dec. 11, 1996) (citing 25 Dodson, 951 F.2d at 42–43). 26 Here, the Court finds that Defendants have not sustained their burden to 27 show that Hernandez is fraudulently joined as a defendant. Because Plaintiffs 1 Court looks to California state law to determine whether Plaintiffs have stated, 2 or possibly can state, a claim for relief against Hernandez. See McCabe, 811 F.2d 3 at 1339. 4 Under California law, a decedent’s surviving spouse and children have 5 standing to assert a claim for wrongful death. Cal. Code Civ. Proc. § 377.60(a). 6 “The elements of the cause of action for wrongful death are the tort (negligence 7 or other wrongful act), the resulting death, and the damages, consisting of the 8 pecuniary loss suffered by the heirs.” Quiroz v. Seventh Ave. Ctr., 140 9 Cal. App. 4th 1256, 1263 (2006) (emphasis omitted); see also Norgart v. Upjohn 10 Co., 21 Cal. 4th 383, 390 (1999) (a claim for wrongful death consists of a 11 “wrongful act or neglect” on the part of one or more persons that “cause[s]” 12 the “death of [another] person”). A wrongful death claim based upon 13 negligence requires allegations of the elements of negligence. Hayes v. Cnty. of 14 San Diego, 736 F.3d 1223, 1231 (9th Cir. 2013). “To support a claim of negligent 15 wrongful death . . . , a plaintiff must establish the standard elements of 16 negligence: defendants owed a duty of care; defendants breached their duty; 17 and defendants’ breach caused plaintiff’s injury.” Id. 18 In California, every person owes a duty to exercise ordinary care to avoid 19 injury to another. See Cal. Civ. Code § 1714(a). With respect to the element of 20 causation, a defendant’s negligence is the actual cause of a plaintiff’s injury if it 21 is a “substantial factor” in bringing about the harm. Mitchell v. Gonzalez, 54 22 Cal. 3d 1041, 1052 (1991). A “substantial factor,” in turn, is defined as “a factor 23 that a reasonable person would consider to have contributed to the harm. It 24 must be more than a remote or trivial factor. [But] [i]t does not have to be the 25 only cause of the harm.” Cal. Civ. Jury Instr. 430 (2020). 26 27 1 The Court begins with Plaintiffs’ allegations regarding Hernandez’s 2 involvement in the subject incident.20 Plaintiffs describe the subject incident as 3 a chain accident—the initial collision led to multiple successive impacts, 4 culminating in the collision between the Toyota Camry and Gutierrez. In 5 pertinent part, Plaintiffs allege that the collision began when Hernandez struck 6 the Toyota Camry as Hernandez attempted to merge into the lane to his right.21 7 Plaintiffs proceed to allege that Hernandez owed a duty to use reasonable care in 8 the operation of his vehicle22 and that he breached this duty when he “merged in 9 an unsafe turn and collided into” the Toyota Corolla.23 Finally, Plaintiffs allege 10 that the negligence of Hernandez, together with the other Defendants, was a 11 substantial factor in causing the death of Gutierrez and Plaintiffs’ consequent 12 injuries.24 13 Plaintiffs and Defendants each rely upon a Traffic Collision Report (the 14 “TCR”) prepared by the California Highway Patrol in connection with its 15 investigation of the subject incident.25 In pertinent part, the TCR relates that 16 four parties and four vehicles were involved in the subject incident. “Party #1,” 17 who is unknown, was the driver of “Vehicle #1,” described as “an older model 18 red Freightliner conventional tractor with a chrome bumper and a rust or brick 19 red shipping container trailer.”26 As reported by a witness, Vehicle #1 fled the 20

21 20 The question before the Court is whether, in view of the evidence presented by Defendants, it is possible for Plaintiffs to state a claim for relief 22 against Hernandez. See Good, 5 F. Supp. 2d at 807. In deciding this question, the Court does not make any finding regarding the legal sufficiency of Plaintiffs’ 23 allegations nor any other finding that would have preclusive effect with respect to the legal sufficiency of Plaintiffs’ Complaint or the claims asserted therein. 24 21 Complaint ¶ 2. 25 22 Id. at ¶ 17. 26 23 Id. at ¶ 18. 24 Id. at ¶ 15. 27 25 Nissen Decl. ¶ 15, Ex. 12. 1 scene eastbound on SR 60 and exited at Grand Avenue.27 The California 2 Highway Patrol issued a “be on the lookout” broadcast for a vehicle matching 3 the description of Vehicle #1.28 At some point thereafter, California Highway 4 Patrol Officers conducted an enforcement stop of the red Freightliner driven by 5 Hernandez which, at least at first glance, matched the description of 6 Vehicle #1.29 Officers ultimately determined that Hernandez’s vehicle was 7 different from Vehicle #1, and Hernandez denied involvement in the subject 8 incident.30 9 Defendants contend that Plaintiffs’ allegations with respect to 10 Hernandez’s potential liability are unsupported by the TCR. Defendants claim, 11 for example, that Hernandez was not detained “moments” after the crash as 12 Plaintiffs contend, that the CHP investigators determined that Hernandez’s red 13 Freightliner differed in certain respects from the red Freightliner described by 14 witnesses, and that the damage to Hernandez’s Freightliner did not match the 15 damage to the Toyota Corolla.31 This evidence, however, is not enough for 16 Defendants to sustain their burden to prove, by clear and convincing evidence, 17 that there is no possible theory of liability against Hernandez. 18 Plaintiffs’ allegations against Hernandez are supported by facts in the 19 TCR such as that Hernandez acknowledged witnessing the subject incident,32 20 Hernandez’s Freightliner is an older model red Freightliner,33 and California 21 Highway Patrol Officers stopped Hernandez on Grand Avenue and Valley 22 Boulevard—the same exit, according to witnesses, taken by the “older model, 23 27 Id. at 15:11–13. 24 28 Id. at 15:24–28. 25 29 Id. at 15:30–32. 26 30 Id. at 15:30–42. 31 Opposition 9:16–15:2. 27 32 TCR 15:37–38. 1|| red, Freightliner” after leaving the scene of the subject incident.** Thus, Hernandez is not some random individual who is completely unrelated to Plaintiffs’ claims. Rather, there is at least some basis for Plaintiffs’ theory of 4|| liability against Hernandez based upon his potential involvement in the subject 5|| accident, especially because the accident involved multiple vehicles and the || vehicle that initiated the collision is currently unidentified. The Court finds that 7|| at this stage of the litigation, there is a possibility that Plaintiffs have alleged, or & || could possibly allege, a claim against Hernandez. 9 Defendants have not sustained their burden to prove fraudulent joinder by || clear and convincing evidence. Consequently, this Court does not have 11 || jurisdiction over the action under 28 U.S.C. § 1332 because there is not || complete diversity between the parties. 13 IV. CONCLUSION 14 Based upon the foregoing, the Court hereby ORDERS as follows: 15 (1) Plaintiffs’ Motion to Remand is GRANTED. This action is 16 || REMANDED to the Los Angeles County Superior Court. 17 (2) Defendants’ pending Motion to Dismiss [Dkt. No. 18] is DENIED 18 || as moot. The hearing on Defendants’ Motion to Dismiss, currently set for 19 || December 4, 2020, is VACATED. 20 IT IS SO ORDERED.

MOM

22|| Dated: December 2, 2020 23 ED! OFA TES DISTRICT JUDGE 24 25 26 27 4 Id. at 15:11-13 & 15:30-32.