1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAZZMON STOVALL, an individual, Case No.: 20-CV-1595 JLS (LL)

12 Plaintiff,

ORDER REMANDING ACTION TO

13 v. THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA, COUNTY

14 AMAZON.COM SERVICES LLC, a

OF SAN DIEGO

Delaware corporation, 15 Defendant. (ECF Nos. 1, 3) 16

17 18 Presently before the Court is Defendant Amazon.com Services LLC’s Response to 19 Order to Show Cause as to the Court’s Subject Matter Jurisdiction (“Resp.,” ECF No. 4), 20 in which Defendant introduces additional evidence to substantiate by a preponderance of 21 the evidence that the amount in controversy exceeds the jurisdictional threshold of $75,000, 22 see id. at 2–7, and urges that Plaintiff Jazzmon Stovall’s claims do not “aris[e] under” 23 California’s workmen’s compensation laws such that they are non-removable under 28 24 U.S.C. § 1445(c). See Resp. at 7–9. Having considered Plaintiff’s operative First 25 Amended Complaint (ECF No. 1-4), Defendant’s Notice of Removal (ECF No. 1) and 26 Response, and the relevant law, the Court REMANDS this action to the Superior Court of 27 the State of California, County of San Diego. 28 / / / 1 As noted in the Court’s August 25, 2020 Order to Show Cause as to the Court’s 2 Subject-Matter Jurisdiction (“OSC,” ECF No. 3): 3 “[A] civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of 4 the United States.” 28 U.S.C. § 1445(c). “A claim ‘arises under’ a workmen’s 5 compensation law[] if it is apparent from the face of the complaint either that (1) a workmen’s compensation law creates the plaintiff’s cause of action; or 6 (2) if another law creates the cause of action, a workmen’s compensation law 7 that creates a cause of action is a necessary element of the plaintiff’s claim.” Southworth v. United Air Lines Inc., No. CV 10-4683-VBF(FMOx), 2010 WL 8 11601184, at *1 (C.D. Cal. Aug. 31, 2010) (quoting Virgin v. Cty. of San Luis 9 Obispo, 201 F.3d 1141, 1142–43 (9th Cir. 2000)).

10 Here, Plaintiff alleges that she suffered a workplace injury, FAC ¶ 11, 11 for which she eventually received treatment from Defendant’s insured urgent care provider. Id. ¶ 13. A couple months later, Plaintiff was terminated. Id. 12 ¶ 15. Among other things, Plaintiff alleges that she “was subjected to 13 discrimination and retaliation because she suffered a workplace injury . . . and because she objected to unlawful employment practices by complaining of 14 Defendant’s failure to provide treatment through its workers compensation 15 doctors.” Id. ¶ 26. These and other allegations also form the basis of Plaintiff’s wrongful termination in violation of public policy cause of action. 16 See id. ¶ 39. 17

18 Id. at 3–4. 19 In its Response, Defendant argues that “Plaintiff alleges that her claims arise under 20 California’s Fair Employment and Housing Act (“FEHA”), not under the workers 21 compensation laws, which substantiates removal here.” Id. at 7. Relying on Rhodes v. 22 Costco Wholesale Corporation, No. 09-CV-2896 H (JMA), 2010 WL 744390 (S.D. Cal. 23 Mar. 3, 2010), and Threadgill v. McLane/Suneast, Inc., No. EDCV 14-2269 JGB SPX, 24 2015 WL 114203 (C.D. Cal. Jan. 8, 2015), Defendant argues that “the workers’ 25 compensation laws ‘are not a necessary element of Plaintiff’s FEHA . . . claim[s]’ and “do 26 not require any ‘inquiry into the meaning of the workers’ compensation laws.’” Resp. at 8 27 (quoting Threadgill, 2015 WL 114203, at *4; Rhodes, 2010 WL 744390, at *2) (alterations 28 in original). “Moreover, Plaintiff’s claim that Defendant failed to accommodate her 1 disability is a separate issue entirely, which does not depend or rely on any workers’ 2 compensation laws.” Id. at 9. 3 “[T]he issue here is whether Plaintiff’s claim ‘arises under’ California’s workers’ 4 compensation laws.” See Names v. Lee Pubc’ns, Inc., No. 09cv0132 BEN (CAB), 2009 5 WL 3008296, at *2 (S.D. Cal. Sept. 21, 2009). “The term ‘arising under’ in the context of 6 § 1445(c) has the same meaning as ‘arising under’ in 28 U.S.C. § 1331.” Hamblin v. 7 Coinstar, Inc., No. CIV. S-071258 WBS KJM, 2007 WL 4181822, at *1 (E.D. Cal. 8 Nov. 21, 2007) (collecting cases). 9 In defining “arising under” for purposes of § 1331, the Ninth Circuit has explained that 10

11 [a] claim arises under a federal law within § 1331 if it is apparent from the face of the complaint either that (1) a federal law creates 12 the plaintiff’s cause of action; or (2) if a state law creates the 13 cause of action, a federal law that creates a cause of action is a necessary element of the plaintiff’s claim. 14

15 Id. (quoting Virgin, 201 F.3d at 1142–43) (alteration in original). “Therefore, for purposes 16 of § 1445(c), plaintiffs’ claim ‘arises under’ California’s workers’ compensation laws if 17 the workers’ compensation laws create plaintiff’s cause of action or if it is necessary to 18 interpret those laws to resolve plaintiffs’ claim.” Id. The Ninth Circuit has not weighed in 19 on whether a retaliation or wrongful discharge claim premised on the filing of a workers’ 20 compensation claim “aris[es] under” California’s workers’ compensation laws such that 21 remand is required under Section 1445(c), and there is a split of authority among district 22 courts in California. See, e.g., Magana v. Biogen Idec, Inc., No. 09-CV-2637 W(BLM), 23 2010 WL 11508875, at *2 (S.D. Cal. Apr. 12, 2010) (collecting cases); see also Hamblin, 24 2007 WL 4181822, at *2, *4 (collecting cases). 25 Defendant’s characterization of Plaintiff’s claims is misleading, focusing on 26 Plaintiff’s allegations of discrimination, retaliation, and wrongful termination as a result of 27 Plaintiff’s “disability.” See Resp. at 7–8 (quoting FAC at 6, 8). While Plaintiff’s First 28 Amended Complaint contains such allegations, they are not the extent of Plaintiff’s 1 allegations. See generally FAC. Rather, Plaintiff alleges five causes of action: 2 (1) disability discrimination in violation of Cal. Gov’t Code § 12940(j); (2) failure to 3 prevent discrimination or harassment in violation of Cal. Gov’t Code § 12940(k); 4 (3) failure to make reasonable accommodations and failure to engage in a timely and good 5 faith interactive process in violation of Cal. Gov’t Code §§ 12926.1(e), 12940(m), 6 12940(n); (4) wrongful termination in violation of public policy; and (5) intentional 7 infliction of emotional distress. See generally FAC ¶¶ 17–43. Plaintiff’s general 8 allegations indicate that she suffered a workplace injury, id. ¶ 11, for which she eventually 9 received treatment from Defendant’s insured urgent care provider, id. ¶ 13, and that she 10 was terminated within a couple months. Id. ¶ 15. Plaintiff’s second cause of action for 11 failure to prevent discrimination or harassment is premised on the following: “Plaintiff was 12 subjected to discrimination and retaliation because she suffered a workplace injury, which 13 left her with a disability or perceived disability, and because she objected to unlawful 14 employment practices by complaining of Defendant’s failure to provide treatment through 15 its workers compensation doctors and HR Department’s failure to accommodate her 16 disability by allowing her to return to work.” Id. ¶ 26 (emphasis added). Plaintiff’s fourth 17 cause of action for wrongful termination hinges upon “[t]he above-described conduct . . . 18 [which] constitutes disability discrimination, retaliation[,] and wrongful termination in 19 violation of public policy embodied in the [Fair Employment and Housing Act 20 (“FEHA”)].” Id. ¶ 39. 21 This case is analogous to Names, in which the plaintiff alleged the same FEHA 22 causes of action as Plaintiff here. See 2009 WL 3008296, at *1. As here, the plaintiff in 23 Names alleged retaliation for the filing a workers’ compensation claim. See id. at *1–2. 24 Although the operative complaint in Names did not explicitly reference California Labor 25 Code section 132(a), see Amended Complaint for Damages, Names v. Lee Publications, 26 Inc., No. 09cv0132 BEN (CAB) (S.D. Cal. removed Jan. 23, 2009), ECF No. 1 Ex. G, the 27 court noted that “Section 132a, which is part of the state’s workers’ compensation laws, 28 ‘clearly creates [the] substantive right to be free from retaliatory discharge after making a 1 workers’ compensation claim.’” Names, 2009 WL 3008296, at *3 (quoting Quinones v. 2 Target Stores, No. C 05-03570 JW, 2005 WL 3157515, at *5 (N.D. Cal. Nov. 22, 2005)) 3 (alteration in original). The court further concluded that “[t]he fact that Plaintiff brings his 4 retaliation [claim] under FEHA does not alter the analysis[ b]ecause section 132a provides 5 the necessary public policy,” meaning “Plaintiff’s retaliation claim under FEHA would 6 apparently not exist without it.” Id. Having concluded that the “[p]laintiff’s retaliation 7 claim under FEHA is . . . dependent on and ‘arises under’ California’s worker’s 8 compensation laws,” the court remanded the case to state court pursuant to Section 1445(c). 9 See id. at *3–4 (citing Hamblin, 2007 WL 4181822, at *3). 10 Here, as in Names, Plaintiff alleges that she suffered retaliation because, among 11 other things, she filed a workers’ compensation claim, see FAC ¶ 26, and that she was 12 wrongfully discharged for those same reasons. See FAC ¶ 39. Under the reasoning in 13 Names, which has been followed in several cases in this District, see, e.g., Magana, 2010 14 WL 11508875, at *2; Rivas v. Manorcare Health Servs., Inc., No. 09-CV-594 W(AJB), 15 2010 WL 11508763, at *2 (S.D. Cal. Feb. 5, 2010); Rodriguez v. Acushnet Co., No. 09- 16 CV-2538-H (POR), 2010 WL 11508995, at *2–3 (S.D. Cal. Jan. 11, 2010),2 Plaintiff’s 17 18 1 In relevant part, Section 132a provides:

19 It is the declared policy of this state that there should not be discrimination against 20 workers who are injured in the course and scope of their employment.

21 (1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his 22 or her intention to file a claim for compensation with his or her employer . . . is guilty of a misdemeanor . . . . 23

24 Cal. Labor Code. § 132(a)(1).

25 2 Plaintiff relies extensively on Rhodes, an in-District decision in which the court denied a motion to remand. See Resp. at 8–9. In Rhodes, the plaintiff settled and released any claim for disability 26 discrimination under Section 132a, rendering the plaintiff in that case “precluded from pursuing a claim for retaliation under the relevant section of California’s workers’ compensation laws.” 2010 WL 744390, 27 at *2. Consequently, unlike Plaintiff and the plaintiffs in Names, Magana, Rivas, and Rodriguez, the 28 plaintiff in Rhodes could “not bring a claim under Labor Code section 132a directly,” leading the court to 1 || wrongful discharge claim “arises under” California’s workers’ compensation laws and, 2 ||therefore, is non-removable under Section 1445(c). “[A]n alternative finding would 3 ||conflict with the congressional concern for the states’ interest in administering their own 4 || workers’ compensation schemes and the Ninth Circuit’s guidance in regards to removal 5 || jurisdiction.” See Rivas, 2010 WL 11508763, at *2 (citing Vasquez v. N. Cty. Transit Dist., 6 F.3d 1049, 1061 n.6 (9th Cir. 2002); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 7 || 1992)). 8 Further, “[iJn light of the finding that Plaintiff's fourth cause of action was not 9 ||removable, this Court believes that principles of judicial economy and comity support the 10 remand of the other causes of action, all of which are state based.” See Magana, 2010 WL 11 |} 11508875, at *2; accord Rivas, 2010 WL 11508763, at *3; Names, 2009 WL 3008296, at 12 ||*4. The Court therefore REMANDS this case to the Superior Court for the State of 13 || California, County of San Diego pursuant to 28 U.S.C. §§ 1445(c) and 1447(c). 14 IT IS SO ORDERED. 15 16 Dated: September 14, 2020 (een 7 on. Janis L. Sammartino United States District Judge 18 19 20 21 22 23 24 25 26 27 28