Antonio Tony Vera v. Con-Way Freight, Inc. et al

Filing 30

MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Andrew J. Wistrich: denying 16 Motion to Remand Case to State Court (yb)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
CIVIL MINUTES--GENERAL
Case No. CV 15-874 AJW

Date: April 6, 2015

Title: ANTONIO TONY VERA v. CON-WAY FREIGHT, INC., et al.
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PRESENT:

HON.

ANDREW J. WISTRICH, MAGISTRATE JUDGE

Ysela Benavides
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFFS:
None Present

Court Reporter
ATTORNEYS PRESENT FOR DEFENDANTS:
None Present

ORDER REGARDING PLAINTIFF’S MOTION TO REMAND
The complaint alleges three claims. Only the second, for
violation of California Labor Code section 1102.5, alleges a
claim against defendant Juan Fuentes. No case has held that
section 1102.5 creates personal liability for individual
employees. Indeed, in what is apparently the only case to decide
the issue, the court held that no individual liability exists
under section 1102.5 and dismissed without leave to amend the
claims against the individual employee defendants. Conner v.
Aviation Serv. of Chevron U.S.A., 2014 WL 5768727, *5 (N.D. Cal.
Nov. 5, 2014). The statutory text, structure, and legislative
history all indicate that only employers – not individual
employees – are liable for violations of the statute. This is
broadly consistent with the approach taken by California courts
in interpreting similar or related statutes. Therefore, the
complaint fails to state a claim against Fuentes. The defect is
not remediable, so allowing leave to amend would be futile. This
means that Fuentes is a so-called “sham defendant” who must be
disregarded for purposes of determining whether diversity of
citizenship jurisdiction exists. When Fuentes is set aside,
diversity of citizenship is present. For the foregoing reasons,
the motion to remand is denied and plaintiff’s claim against
Fuentes is dismissed.
IT IS SO ORDERED.
cc:

Parties

MINUTES FORM 11

Initials of Deputy Clerk________

CIVIL-GEN

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