Laila Abikhalil v. American Medical Response Ambulance Service, Inc. et al

Filing 13

MINUTES (IN CHAMBERS) Order DENYING motion to remand by Judge Philip S. Gutierrez denying 7 MOTION to Remand Case to State Court: The Court therefore DENIES the motion to remand. (see document for further details) (bm)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

#7 (02/08 HRG OFF)

CIVIL MINUTES - GENERAL
Case No.

CV 15-9358 PSG (PJWx)

Title

Laila Abikhalil v. American Medical Response Ambulance Service, Inc., et al.

Present: The Honorable

Date

February 2, 2016

Philip S. Gutierrez, United States District Judge

Wendy Hernandez

Not Reported

Deputy Clerk

Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present

Not Present

Proceedings (In Chambers):

Order DENYING motion to remand

Before the Court is Plaintiff Laila Abikhalil’s motion to remand. Dkt. #7. The Court finds
the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15.
After considering the moving, opposing, and reply papers, the Court DENIES Plaintiff’s motion.
I.

Background

Plaintiff worked as a volunteer intern for Defendants American Medical Response, Inc.,
American Medical Response Ambulance Service, Inc., and Envision Healthcare Corporation.
Compl. ¶¶2–3, 8. Plaintiff alleges that Defendants’ employees made “obscene, lewd, and
disrespectful sexually harassing/gender/race/color/national origin/ancestry discriminatory slurs,
comments, and sexual propositions to Plaintiff,” and “engaged in quid pro quo harassment by
conditioning continued interning/volunteering, approval of Plaintiff’s intern responsibilities, and
opportunity for Plaintiff to fulfill her internship requirements on Plaintiff s engaging in sexual
acts with [them].” Id. ¶¶8–9. Plaintiff alleges that Defendants permitted this conduct. Id. ¶8.
After Plaintiff complained about her treatment, she alleges that Defendants “mocked [her],
physically threatened her, and delayed her return to the office,” that Defendants’ employees
“physically threatened [her] and attempted to interfere in [her] ability to complain about the
harassment to management,” and that Defendants “retaliated and discriminated against [her] by
berating [her], suspending her, forcing [her] to leave, and terminating her internship with
Defendants.” Id. ¶¶10–12. Plaintiff alleges that all of this occurred due to “her protected
activities/complaints” and “on the basis of her gender/race/color/ancestry/national
origin/opposition to sexual harassment.” Id. ¶12.
After allegedly exhausting all administrative remedies and receiving a right to sue letter
from the California Department of Fair Housing and Employment, id. ¶13, Plaintiff brought suit
against Defendants in the Superior Court for the County of Los Angeles, Dkt. #1, Ex. B.
Plaintiff included claims for: (1) Harassment in Violation of the Fair Employment and Housing
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-9358 PSG (PJWx)

Date

February 2, 2016

Title

Laila Abikhalil v. American Medical Response Ambulance Service, Inc., et al.

Act (“FEHA”); (2) Failure to Prevent Harassment in Violation of FEHA; (3) Retaliation in
Violation of FEHA; (4) Intentional Infliction of Emotional Distress; (5) Assault; (6)
Discrimination in Violation of FEHA; (7) Failure to Prevent Discrimination in Violation of
FEHA; (8) Failure to Prevent Retaliation in Violation of FEHA; and (9) Violation of the Unruh
Civil Rights Act. See generally Compl.
Defendants removed the case to this Court. Dkt. #1. Plaintiff subsequently filed this
motion for remand. Dkt. #7.
II.

Legal Standard

Under 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court to
federal court if original jurisdiction would lie in federal court. City of Chicago v. Int’l Coll. of
Surgeons, 522 U.S. 156, 163 (1997). A federal court has original jurisdiction under 28 U.S.C.
§ 1332 if (1) there is complete diversity between the parties and (2) the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332(a) (referred to as diversity jurisdiction). Courts must be
mindful that there is a “strong presumption against removal jurisdiction,” which means that
courts should “strictly construe the removal statute against removal jurisdiction.” Geographic
Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010)
(quoting Gaus v. Miles, Inc., 980 F.2d 564, 566–67 (9th Cir. 1992) (per curiam)).
When, as here, it is not evident from the face of the complaint that the alleged damages
exceed $75,000, a defendant must prove by a preponderance of the evidence that the
jurisdictional threshold is met. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004);
Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403–04 (9th Cir. 1996). A defendant may
rely on facts in the removal petition and summary-judgment-type evidence relevant to the
amount in controversy. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th
Cir. 2003) (per curiam). Conclusory allegations that the amount in controversy is satisfied are
insufficient. Id.
III.

Discussion

Plaintiff does not dispute that complete diversity exists among the parties, and the Court
is satisfied that Defendants have established this aspect of diversity jurisdiction. See Notice of
Removal (“NOR”) 3–5 (discussing the citizenship of the parties). Thus, the sole question is
whether it is more likely than not that the amount in controversy exceeds $75,000.
Plaintiff alleges that she was subject to obscene, lewd, and discriminatory statements,
sexual propositions that included conditioning her continued ability to intern on her participation
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-9358 PSG (PJWx)

Date

February 2, 2016

Title

Laila Abikhalil v. American Medical Response Ambulance Service, Inc., et al.

in sexual conduct, physical threats, attempts to prevent her from complaining about her
treatment, and the termination of her internship. Compl. ¶¶8–12. Plaintiff alleges that she has
suffered emotional distress, mental anguish, shame, humiliation, embarrassment, physical
symptoms, and damages to her earning capacity and professional reputation. Id. ¶¶19, 24, 29,
33–34, 39–40, 43, 48, 53, 56. Plaintiff seeks compensatory damages, general and special
damages, punitive damages, loss of earnings, and attorney’s fees. Id., Prayer for Relief.
Courts may consider emotional distress damages when analyzing the amount in
controversy. See Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005), as amended;
Ponce v. Med. Eyeglass Ctr., Inc., No. 215CV04035CASJEMX, 2015 WL 4554336, at *4 (C.D.
Cal. July 27, 2015); Sasso v. Noble Utah Long Beach, LLC, No. CV 14-09154-AB AJWX, 2015
WL 898468, at *6 (C.D. Cal. Mar. 3, 2015). It is also “well established that punitive damages
are part of the amount in controversy in a civil action.” Gibson v. Chrysler Corp., 261 F.3d 927,
945 (9th Cir. 2001), superseded by statute on other grounds as stated in Bayol v. Zipcar, Inc.,
No. CV 14-02483, 2015 WL 4931756, at *9 (N.D. Cal. Aug. 18, 2015). Defendants argue that
the allegations in the complaint indicate that the combined damages for emotional distress and
punitive damages may be substantial. Opp. 6–12.
Defendants primarily base their arguments about damages on jury verdicts and
settlements in other cases. See NOR 8–10; Opp. 6–12. The Court may consider such damage
awards when analyzing whether the facts in this case place the amount in controversy above the
jurisdictional limit. See Ponce, 2015 WL 4554336, at *4–5; Sasso, 2015 WL 898468, at *6;
Cain v. Hartford Life & Acc. Ins. Co., 890 F. Supp. 2d 1246, 1250–51 (C.D. Cal. 2012). But
“[w]hile settlements and jury verdicts in similar cases can provide evidence of the amount in
controversy, the cases must be factually identical or, at a minimum, analogous to the case at
issue.” Aguilar v. Wells Fargo Bank, N.A., No. EDCV1501833 ABSPX, 2015 WL 6755199, at
*5 (C.D. Cal. Nov. 4, 2015) (quoting Mireles v. Wells Fargo Bank, N.A., 845 F. Supp. 2d 1034,
1055 (C.D. Cal. 2012)).
The Court agrees with Defendants that the serious allegations in the Complaint mirror
other cases in which damages well above $75,000 were awarded. For example, the plaintiff in
Mirtha Sornia v. El Centro Elementary School District, et al. presented evidence that her
supervisor “harassed her by making sexual comments, suggestions and advances,” including
“suggesting that she use a water-bottle to pleasure herself,” “pantomiming as if he were
performing oral sex on her,” and giving her samples of his pubic hair. No. 04 CV 0332 JM,
2006 WL 1889358 (S.D. Cal. June 2, 2006). The plaintiff alleged that the harassment stopped
after she complained to human resources. Id. Plaintiff sought damages for pain and suffering.
Id. The plaintiff received a jury verdict of $400,000 in compensatory damages and $32,500 in
punitive damages. Id.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-9358 PSG (PJWx)

Date

February 2, 2016

Title

Laila Abikhalil v. American Medical Response Ambulance Service, Inc., et al.

In Marshall, et al. v. City of Los Angeles, another case cited by Defendants, four plaintiffs
alleged that they were subject to “sexual harassment, quid pro quo sexual harassment, sex
discrimination, retaliation, [and] a hostile work environment,” because their supervisor “called
them names, touched them inappropriately, made sexual advances on them, and made suggestive
and inappropriate comments to them about their bodies and sexuality, even after they asked him
to stop.” LA Super. Ct. No. BC520570, 2015 WL 5578120 (Cal. Super. Ct. Apr. 15, 2015).
They also alleged that they were shunned, ostracized, and demoted after reporting. Id. Each
plaintiff received over $200,000 in a settlement with the city. Id.
Many of the other cases cited by Defendants show similarly high awards for severe
workplace sexual harassment. See, e.g., Bradley v. Cal. Dep’t of Corr. & Rehab., 158 Cal. App.
4th 1612, 1617–23, 1635 (2008) (reinstating jury verdict of $300,000 in non-economic damages
where the plaintiff’s coworker made numerous sexually explicit comments to the plaintiff,
frequently propositioned her for sex, and repeatedly visited her apartment in the middle of the
night for a one-month period); Vargas, et al. v. City of San Diego, San Diego Super. Ct. No.
GIC795907, 2004 WL 2590534 (Cal. Super. Ct. Sept. 28, 2004) (settlement of over $400,000
each for two plaintiffs, including one intern, for sexual harassment that “consisted of lewd and
offensive comments about women’s bodies (including plaintiffs’ and others’), foul and offensive
language (including repeated references to women as ‘cunts’), some physical touching of [one of
the plaintiffs], and frequent watching of graphic pornography”); Smith vs. Federal Express
Corp., CV0201149FMC, 2003 WL 23202186 (C.D. Cal. Aug. 22, 2003) (plaintiff received a
jury verdict of $250,000 in emotional distress damages where defendant made sexually
suggestive comments to her and forcibly kissed her on the mouth).
Plaintiff argues that Defendants have “not cited any cases where an unpaid intern
recovered more than $75,000 from a jury and attorney’s fees.” Reply 2.1 But the fact that the
cited cases have some distinguishable facts is not dispositive because the Court believes they are
sufficiently analogous to establish that the damages here have the potential to be substantial. See
Amado v. US Bancorp, No. SACV1500871JLSDFMX, 2015 WL 5618877, at *2 (C.D. Cal.
Sept. 24, 2015); Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1033–34 (N.D. Cal. 2002); cf.
Aguilar, 2015 WL 6755199, at *5–6 (declining to consider damage awards cited by the
1

Plaintiff’s main argument in her motion to remand was that Defendants presented no
evidence of compensatory or punitive damages because the Notice of Removal included the
damages awarded in the cited cases without addressing why the facts in those cases were similar
to those in this case. Mot. 4–7. Although this is correct, Defendants explain in their Opposition
why they believe the cited cases are factually similar to the allegations in this case. See Opp.
6–10; see also Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (“The district court
did not err in construing Petsmart’s opposition as an amendment to its notice of removal.”).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-9358 PSG (PJWx)

Date

February 2, 2016

Title

Laila Abikhalil v. American Medical Response Ambulance Service, Inc., et al.

defendant because the damages arose in cases that were factually dissimilar). The Court thus
finds that Defendants have met their burden of establishing that it is more likely than not that the
amount in controversy exceeds the jurisdictional minimum, and that diversity jurisdiction exists.2
IV.

Conclusion
The Court therefore DENIES the motion to remand.
IT IS SO ORDERED.

2

Defendants also argue that penalties under the Unruh Civil Rights Act and attorney’s fees
available under FEHA establish that the amount in controversy is above $75,000, and that
Plaintiff’s refusal to stipulate that she is seeking less than $75,000 in damages shows that
Plaintiff’s motion to remand is “gamesmanship.” NOR 11–13; Opp. 11–16. Because the Court
believes that the compensatory and punitive damages alone reach the jurisdictional minimum, it
need not address these other arguments.

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