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JS-6

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8 United States District Court 9 Central District of California

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11 SEAN LICEA, Case № 5:20-cv-01624-ODW (KKx)

12 Plaintiff, ORDER GRANTING

13 v. MOTION TO REMAND [8]

14 THE HOME DEPOT INC.,

15 Defendant.

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17 18 I. INTRODUCTION 19 Plaintiff Sean Licea initiated this action against Defendant The Home Depot, 20 Inc. in the Superior Court for the State of California, County of Riverside. (See 21 Notice of Removal (“NOR”) ¶ 1, ECF No. 1.) Licea seeks declaratory, injunctive, and 22 monetary relief for Home Depot’s alleged violations of (1) the California Unruh Civil 23 Rights Act (“Unruh”), Cal. Civ. Code §§ 51 et seq., and (2) the California Disabled 24 Persons Act (“CDPA”), Cal. Civ Code §§ 54, et seq. (NOR Ex. A (“Compl.”) 25 ¶¶ 36–61, ECF No. 1-1.) On August 12, 2020, Home Depot removed the action to this 26 Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1331. 27 (NOR ¶ 3.) Home Depot avers that Licea’s claims raise a federal question because 28 they are predicated on a violation of the Americans with Disabilities Act (“ADA”), 42 1 U.S.C. §§ 12182 et seq. (NOR ¶¶ 3–4.) Licea moves to remand for lack of subject 2 matter jurisdiction. (Mot. to Remand (“Motion” or “Mot.”), ECF No. 8.) For the 3 following reasons, Licea’s Motion is GRANTED.1 4 II. LEGAL STANDARD 5 Federal courts have subject matter jurisdiction only as authorized by the 6 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 7 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court 8 may be removed to federal court only if the federal court would have had original 9 jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts have original 10 jurisdiction where an action arises under federal law or where each plaintiff’s 11 citizenship is diverse from each defendant’s citizenship and the amount in controversy 12 exceeds $75,000. 28 U.S.C. §§ 1331, 1332(a). 13 The removal statute is strictly construed against removal, and “[f]ederal 14 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 15 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). A court resolves all 16 ambiguity in favor of remand to state court, and the party seeking removal bears the 17 burden of establishing federal jurisdiction. See id. 18 III. DISCUSSION 19 Licea argues the Court must remand because his state-law claims do not give 20 rise to federal question jurisdiction. (Mot. 2–4.) In opposition, Home Depot contends 21 that Licea’s claims are premised “solely” on violation of the ADA, making federal law 22 a necessary element of his claims. (See Opp’n to Mot. (“Opp’n”) 1, ECF No. 9.) 23 Generally, a state law claim gives rise to a federal question only when a federal 24 law is a necessary element of the state claim. Wander v. Kaus, 304 F.3d 856, 857–58 25 (9th Cir. 2002). However, the “mere presence of a federal issue in a state cause of 26 action does not automatically confer federal-question jurisdiction.” Merrell Dow 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 Pharms. Inc. v. Thompson, 478 U.S. 804, 813 (1986). “When a claim can be 2 supported by alternative and independent theories—one of which is a state law theory 3 and one of which is a federal law theory—federal question jurisdiction does not attach 4 because federal law is not a necessary element of the claim.” Rains v. Criterion Sys., 5 Inc., 80 F.3d 339, 346 (9th Cir. 1996). 6 In the present context, Unruh and the CDPA may be violated in a number of 7 ways, only one of which is an ADA violation. See Cal. Civ. Code §§ 51(f), 54.1(d). 8 In his Complaint, Licea pleads alternate theories of liability for both his Unruh and 9 CDPA claims, such that neither is premised exclusively upon violation of the ADA. 10 (See Compl. ¶¶ 37–49, 55–59.) Thus, the federal law theory is not a necessary 11 element of the Unruh claim and federal question jurisdiction does not attach. See 12 Licea v. Reebok Int’l Ltd, No. CV 19-00970 TJH (Ex), 2019 WL 4014431, at *1 (C.D. 13 Cal. Aug. 23, 2019) (remanding because “the Unruh Act’s incorporation of the ADA 14 is insufficiently substantial to make the ADA a necessary element”). 15 Home Depot argues the Court should not remand because Licea will abandon 16 his non-ADA theory of liability once firmly in state court, and his non-ADA theory of 17 liability is not actionable. (Opp’n 1, 7–8.) But the Court evaluates removal 18 jurisdiction based on a federal question from the complaint as it existed at the time of 19 removal. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979). 20 Licea’s Complaint clearly alleges alternate theories of liability under both state and 21 federal law, as discussed above. The Court declines to speculate as to how Licea may 22 pursue his claims going forward. See Martinez v. Greatcollections.com, LLC, 23 No. 8:19-CV-01647-JLS (KESx), 2019 WL 4742299, at *2 (C.D. Cal. Sept. 27, 2019) 24 (declining to “speculate about developments that may alter the jurisdictional analysis 25 down the road”). Similarly, the merits of Licea’s state-law claims are not presently 26 before the Court; rather, the Court considers only whether Licea’s Complaint gives 27 rise to federal question jurisdiction. It does not. As such, the Court must remand, and 28 Licea’s Motion is GRANTED. 1 Lastly, Licea requests an award of fees and costs incurred as a result of Home 2 Depot’s removal. (Mot. 4–8.) “An order remanding the case may require payment of 3 just costs and any actual expenses, including attorney fees, incurred as a result of the 4 removal.” 28 U.S.C. § 1447(c). “[T]he standard for awarding fees should turn on the 5 reasonableness of the removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 6 (2005). Here, a fee award is not appropriate. First, “Wander does not directly 7 foreclose Defendant’s argument regarding the inclusion of a request [for] injunctive 8 relief.” Castillo v. Tamara Mellon Brand, Inc., No. CV 19-10466-GW-MRWx, 9 2020 WL 703693, at *3 (C.D. Cal. Feb. 10, 2020) (denying fee award because 10 removal was not objectively unreasonable “in the absence of binding precedent”). 11 Second, “the fee applicant bears the burden of establishing entitlement to an award 12 and documenting the appropriate hours expended and hourly rate,” Hensley v. 13 Eckerhart, 461 U.S. 424, 437 (1983), and Licea and his counsel have not met this 14 burden. Licea’s counsel submits declaration testimony merely attesting that “[his] 15 office” has “spent a total of 8.2 hours of time, totaling $4,270.00.” (Decl. of Eric D. 16 Zard ¶ 5, ECF No. 8-2.) Licea’s counsel also states his billing rate is $625.00 per 17 hour, while his associates’ rate is $525.00 per hour, (id. ¶ 6), but without any more 18 information, it would be impossible for the Court to analyze the reasonableness of 19 Licea’s fee request. Accordingly, Licea’s fee request is DENIED. 20 IV. CONCLUSION 21 In summary, the Court GRANTS Licea’s Motion to Remand and DENIES 22 Licea’s request for fees. (ECF No. 8.) The Court REMANDS this action to the 23 Superior Court for the State of California, County of Riverside, Case 24 No. MCC2000981. 25 // 26 // 27 // 28 // 1} All dates and deadlines in this action, including the Scheduling Conference set for Monday, December 21, 2020, are hereby VACATED. The Clerk of the Court shall 3 || close the case. 4 5 IT IS SO ORDERED. 6 7 December 17, 2020

9 VEU | Liat

10 OTIS D. 6 T, I

UNITED STATES DISTRICT JUDGE

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