Angela Kaldis v. Wells Fargo Bank, National Association, et al

Filing 14

ORDER DENYING PLAINTIFFS MOTION TO REMAND 9 AND DISMISSING INDIVIDUALDEFENDANTS by Judge Otis D. Wright, II: Because the Court finds that Defendants Najla Rabadi, Sara Majidian, and Rita El Hage were fraudulently joined and the amount in c ontroversy exceeds $75,000, it has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1332. The Court therefore DENIES Kaldis Motion to Remand. (ECF No. 9.) Furthermore, based on the foregoing analysis, the Court DISMISSES Rabadi, Majidian, and El Hage from this action with prejudice. (SEE DOCUMENT FOR FURTHER DETAILS) (vv)

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United States District Court
Central District of California

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ANGELA KALDIS,
Plaintiff,

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v.
WELLS FARGO BANK, N.A.; NAJLA
RABADI; SARA MAJIDIAN; RITA EL
HAGE; and DOES 1-100, inclusive,

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ORDER DENYING PLAINTIFF’S
MOTION TO REMAND [9] AND
DISMISSING INDIVIDUAL
DEFENDANTS

Defendants.

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Case № 2:16-cv-06407-ODW- GJS

I.

INTRODUCTION

Plaintiff Angela Kaldis originally filed this action in Los Angeles Superior
Court against Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) and individual
Defendants Najla Rabadi, Sara Majidian, and Rita El Hage (collectively, “Individual
Defendants”). (Compl., ECF No. 1, Ex. A.) Wells Fargo timely removed the case
based on diversity jurisdiction, claiming that complete diversity existed because the
Individual Defendants were fraudulently joined. (Notice of Removal (“NOR”), ECF
No. 1.) Plaintiff subsequently filed the present Motion for an Order to Remand to
State Court. (ECF No. 9.)
The Court finds that the Individual Defendants are fraudulently joined. The
Court therefore has subject-matter jurisdiction over this action, pursuant to 28 U.S.C.

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§ 1332. Thus, Plaintiff’s Motion for Remand is DENIED and the Court dismisses

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Defendants Rabadi, Majidian, and El Hage from this action with prejudice.1 (ECF

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No. 9.)

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II.

FACTUAL BACKGROUND

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Wells Fargo employed Kaldis as a Personal Banker for two separate terms of

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employment: the first from February 2013 until February 2014, and the second from

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March 2014 until October 2015. (Compl. ¶¶ 11(a), 11(g), 11(h), 12(a).) During the

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first period of employment, Rabadi was Kaldis’ branch manager and Majidian was the

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branch’s Service Manager. (Id. ¶¶ 11(a), 11(c).) Kaldis alleges that Rabadi verbally

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abused her regarding her weight and appearance, forced her to stay at work later than

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male employees, screamed at her, turned off her internet while she was helping a

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customer, and threatened to keep her from being promoted if Kaldis ever reported the

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abuse to Human Resources. (Id. ¶¶ 11(a), 11(e).)

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Kaldis was diagnosed with anxiety and depression in mid-2013. (Id. ¶ 11(b).)

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Thereafter, Rabadi observed prescription medication on Kaldis’ desk and allegedly

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made offense statements such as “Angela is taking Xanax at her desk” and “Angela is

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on drugs.” (Id.) Around that time, Majidian allegedly told Kaldis that she was

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slurring her words and asked her “What drugs are you on? Do you need help?” during

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a meeting in which another employee was present. (Id. ¶ 11(c).)

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Near the end of 2013, Kaldis twice requested a transfer to a different Wells

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Fargo location, both of which she claims Rabadi blocked. (Id. ¶¶ 11(e), 11(f).) Kaldis

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eventually quit in February 2014 due to the allegedly hostile work environment at the

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branch. (Id. ¶ 11(g).) However, El Hage later recruited Kaldis back to Wells Fargo to

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work under her at a different branch. (Id. ¶ 11(h).) Kaldis claims that she soon

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experienced a hostile environment at the new branch as well, as Rabadi and El Hage

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After carefully considering the papers filed in support of and in opposition to the Motion, the
Court deems the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D.
Cal. L.R. 7-15.

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became closer friends and El Hage began to single out Kaldis and question her work

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performance. (Id. ¶ 11(i).) Further, El Hage allegedly told Kaldis that her new branch

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manager would “always . . . promote the guys over you.” (Id.) Kaldis claims that her

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lack of promotion after being sent to a licensing program—which resulted in the

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promotion of all the male employees that attended—shows that she was discriminated

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against for being a woman. (Id.)

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Kaldis eventually took a medical leave of absence in April 2015 due to

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depression she claims was related to her mistreatment at Wells Fargo. (Id. ¶ 12(a).)

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She was terminated in October 2015.

(Id.)

On July 22, 2016, Kaldis filed a

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Complaint in the Los Angeles Superior Court, in which she asserted sixteen causes of

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action. (ECF No. 1, Ex. A.) However, Kaldis pleaded only three of those causes of

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action against the Individual Defendants: disability harassment, harassment on the

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basis of taking leave under the California Family Rights Act (“CFRA”), and

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intentional infliction of emotional distress (“IIED”). (Id. ¶¶ 25–30, 61–66, 118–23.)

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Wells Fargo timely removed the case to this Court, arguing that the Individual

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Defendants were sham defendants who had been fraudulently joined and whose

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citizenship should not be taken account in determining diversity jurisdiction. (ECF

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No. 1.) Kaldis then filed the present Motion to Remand. (ECF No. 9.)

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III.
A.

LEGAL STANDARD

Removal

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A civil action may be removed from a state court to a federal district court

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where the action is pending if the district court has original jurisdiction over the

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action. 28 U.S.C. § 1441(a). A district court has original jurisdiction over a civil

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action where the amount in controversy exceeds the sum or value of $75,000,

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exclusive of interest and costs, and the dispute is between “citizens of different

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states.” 28 U.S.C. § 1332. Section 1332 requires complete diversity, i.e., that “the

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citizenship of each plaintiff is diverse from the citizenship of each defendant.”

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Caterpillar Inc. v. Lewis, 519 U.S. 61, 67–68 (1996). Section 1441 further limits

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removal to cases where no defendant “properly joined and served . . . is a citizen of

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the State in which such action is brought.” 28 U.S.C. § 1441(a)(b)(2). Removal

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statutes are “strictly construe[d] against removal.” Gaus v. Miles, Inc., 980 F.2d 564,

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566 (9th Cir. 1992). Federal jurisdiction must be rejected if there is any doubt as to

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the right of removal in the first instance. Id. Accordingly, the removing party bears

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the heavy burden of establishing original jurisdiction in the district court. Id.

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B.

Fraudulent Joinder

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However, a non-diverse party may be disregarded for purposes of determining

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whether diversity jurisdiction exists if the court determines that the party’s joinder was

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“fraudulent” or a “sham.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th

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Cir. 2001). The relevant inquiry is whether plaintiff has failed to state a cause of

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action against the non-diverse defendant, and the failure is obvious under settled state

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law. Id.

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The burden of proving fraudulent joinder is a heavy one. The removing party

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must prove that there is “no possibility that plaintiff will be able to establish a cause of

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action in State court against the alleged sham defendant.” Good v. Prudential Ins. Co.

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of Am., 5 F. Supp. 2d 804, 807 (N.D. Cal. 1998). In this regard, “[r]emand must be

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granted unless the defendant shows that the plaintiff ‘would not be afforded leave to

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amend his complaint to cure [the] purported deficiency.’” Padilla v. AT & T Corp.,

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697 F. Supp. 2d 1156, 1159 (C.D. Cal. 2009); Macey v. Allstate Prop. & Cas. Ins.

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Co., 220 F. Supp. 2d 1116, 1117 (N.D. Cal. 2002) (“If there is a non-fanciful

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possibility that plaintiff can state a claim under California law against the non-diverse

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defendants the court must remand”). “Merely a ‘glimmer of hope’ that plaintiff can

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establish [a] claim is sufficient to preclude application of [the] fraudulent joinder

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doctrine.”

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100210, at *4 (C.D. Cal. Jan. 7, 2013) (internal quotations omitted); accord Ballestros

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v. Am. Std. Ins. Co. of Wisc., 436 F. Supp. 2d 1070, 1072 (D. Ariz. 2006) (same)

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(citing Mayes v. Rapoport, 198 F.3d 457, 463–64 (4th Cir. 1999)).

Gonzalez v. J.S. Paluch Co., No. 12-08696-DDP (FMOx), 2013 WL

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IV.

DISCUSSION

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The Court finds that Kaldis and Wells Fargo are diverse parties, and that the

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Individual Defendants were fraudulently joined. Further, the Court finds that Wells

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Fargo sufficiently pleaded that Kaldis’ claims clear the $75,000 threshold of § 1332.

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Therefore, the Court DENIES Kaldis’ Motion to Remand. (ECF No. 9.)

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A.       Diversity Jurisdiction

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Kaldis’ Citizenship

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Kaldis argues that Wells Fargo did not sufficiently establish her citizenship in

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its Notice of Removal, as Wells Fargo based its determination of Kaldis’ California

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citizenship solely on the assertion in her Complaint that she was a California

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“resident” at the time of the alleged incidents. (Mot. at 6–7.)

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For diversity purposes, an individual is a citizen of the state where he or she is

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domiciled. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). A

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person’s domicile is her permanent home, where she resides with the intention to

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remain or to which she intends to return. Id. (citing Lew v. Moss, 797 F.2d 747, 749

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(9th Cir. 1986)). A person’s residence can be prima facie evidence of domicile. State

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Farm Mut. Auto. Ins. Co v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994). However, mere

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residence allegations are insufficient to establish citizenship on removal in light of the

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strong presumption against subject matter jurisdiction in a case removed from state

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court. Kanter, 265 F.3d at 857–58 (holding that defendant had not establish plaintiffs’

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citizenship when defendant only referenced plaintiffs’ respective residences and never

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actually asserted that plaintiffs were California citizens); Wilson v. CitiMortgage, No.

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5:13-cv-02294-ODW (SPx), 2013 WL 6871822, at *1 (C.D. Cal. Dec. 17, 2013).

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Generally, courts require a removing defendant to establish a plaintiff’s

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citizenship using other facts in addition to residence, such as “voting registration and

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voting practices, . . . location of brokerage and bank accounts, location of spouse and

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family, membership in unions and other organizations, place of employment or

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business, driver’s license and automobile registration, and payment of taxes.” Lew,

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797 F.2d at 750. Yet some courts in this district have allowed defendants to establish

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a plaintiff’s California citizenship using only the plaintiff’s admission of California

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residence to argue that plaintiff was a California citizen. See, e.g., Martinez v. Wells

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Fargo Bank, N.A., No. CV 13-09547 SJO (JCGx), 2014 WL 997390, at *1 (C.D. Cal.

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Jan. 8, 2014); Avila v. Allegro Mfg., Inc., No. CV 11-07744 SJO (MRWx), 2011 WL

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6010044, at *2 (C.D. Cal. Nov. 28, 2011) (“Absent any evidence to the contrary, the

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Court finds Dunkel to be a citizen of California for purposes of diversity.”); Merricks-

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Barragan v. Maidenform, Inc., No. CV 11-07965 SJO (MRWx), 2011 WL 5173653,

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at *2 (C.D. Cal. Oct. 31, 2011).

In fact, the court in Wexler v. Jensen

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Pharmaceuticals, Inc. recently dismissed—in a single footnote—a prior attempt by

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Kaldis’ law firm to make the same argument that she makes here. Wexler v. Jensen

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Pharmaceuticals, Inc., No. CV 15-03518-AB (AJWx), 2015 WL 6159101, at *8 n. 1

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(C.D. Cal. Oct. 20, 2015) (“Plaintiff also attempts to argue that Defendant failed to

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establish Plaintiff’s California citizenship . . . The Court has reviewed the record and

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summarily rejects [this] argument”).

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Wells Fargo does more than necessary to establish Kaldis’ citizenship for

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diversity purposes. Contrary to Kaldis’ claim that “Defendants do not provide any

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basis, let alone any citation or reference” for their assertion that Kaldis is a California

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citizen, Wells Fargo cites Plaintiff’s own statement in her Complaint that she resided

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in California at all times mentioned in the Complaint. (Mot. 7; NOR ¶ 6 n. 2; Compl.

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3.) Moreover, Wells Fargo also establishes that Kaldis was employed in California

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during the alleged incidents at issue. (NOR ¶ 6); see Lew, 797 F.2d at 750. Thus,

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Wells Fargo has cited multiple facts to establish Kaldis’ California citizenship.

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Further, Kaldis never actually disputes that she is a California citizen; in fact, she

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argues in the alternative that diversity does not exist precisely because both she and

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the Individual Defendants are California citizens. (Mot. 7.) Therefore, the Court

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rejects Kaldis’ argument that Defendants have not sufficiently established her

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citizenship.

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Neither party contests Wells Fargo’s citizenship. Under 28 U.S.C. § 1348,

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national banking associations are citizens of the state where their main office is

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located. See Am. Surety Co. v. Bank of Cal., 133 F.2d 160, 161–62 (9th Cir. 1943);

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Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006) (noting that “one would

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sensibly ‘locate’ a national bank for . . . qualification for diversity jurisdiction, in the

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State designated in its articles of association as its main office”). Wells Fargo has its

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main office in Sioux Falls, South Dakota, and is therefore a citizen of South Dakota.

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(NOR ¶ 7); see also Rouse v. Wachovia Mortgage, FSB, 747 F.3d 707, 711 (9th Cir.

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2014) (holding that “Wells Fargo is a citizen only of South Dakota, where its main

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office is located”). Thus, Kaldis and Wells Fargo are diverse parties.

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B.

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Wells Fargo’s Citizenship

Fraudulent Joinder
However, the main dispute over diversity jurisdiction arises when considering

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the citizenship of the Individual Defendants.

As Kaldis notes, the Individual

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Defendants are all citizens of California, which would initially seem to destroy

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diversity given Plaintiff’s California citizenship. But Wells Fargo argues that the

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Individual Defendants’ citizenship should be disregarded because they are sham

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defendants that have been fraudulently joined. (NOR ¶ 20; Opp’n 5, ECF No. 11.)

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While Kaldis asserts that the Individual Defendants have not been fraudulently joined,

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she does little if anything to actually counter the cogent arguments Defendants have

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made. Instead, Kaldis essentially repeats the allegations of her initial Complaint

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against the Individual Defendants. (See Mot. 9–12.) The Court analyzes each of Well

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Fargo’s arguments regarding fraudulent joinder in turn.

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1.

FEHA Claims against Rabadi, Majidian, and El Hage

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Kaldis makes two separate claims of harassment against the Individual

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Defendants under California Government Code section 129409(j): claims for

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disability harassment, and harassment on the basis of taking CFRA leave. (Compl.

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¶¶ 25–30, 61–66); Cal. Gov’t Code § 12940(j). Defendants respond that Kaldis failed

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to exhaust her administrative remedies before bringing the suit, and thus is barred

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from now bringing these claims. (NOR ¶ 11; Opp’n 5–7.)

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Section 12960 requires that an employee “exhaust the administrative remedy

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provided by the statute by filing a complaint with the Department of Fair Employment

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and Housing (“DFEH”) and . . . obtain[ing] from the Department a notice of right to

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sue in order to be entitled to file a civil action in court based on violations of the

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FEHA.” Romano v. Rockwell Int’l, Inc., 14 Cal. 4th 479, 492 (1996); Cal. Gov’t Code

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§ 12960(b). In order for a plaintiff “to bring a civil lawsuit under the FEHA, the

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defendants must have been named in the caption or body of the DFEH charge.” Cole

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v. Antelope Valley Union High School Dist., 47 Cal. App. 4th 1505, 1515 (1996).

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Kaldis filed her DFEH complaint on February 18, 2016, and named only Wells Fargo

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as a respondent. (Req. for Judicial Notice 8, ECF No. 12.) The complaint form even

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includes a space to name co-respondents, but Kaldis failed to include the Individual

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Defendants. (Id. at 8–10.) Since Rabadi, Majidian, and El Hage were never named in

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Kaldis’ FEHA complaint, Kaldis cannot now name them in her Complaint. See Cole,

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47 Cal. App. 4th at 1515 (holding that the plaintiff could not bring an FEHA action

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against two codefendants in the case since he had not named in his DFEH complaint).

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2.

IIED Claims Against Rabadi and Majidian

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Similarly, Kaldis cannot state claims against Rabadi and Majidian for IIED.

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IIED claims are subject to a two-year statute of limitations under California Code of

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Civil Procedure section 335.1. This two year period begins to run “when the plaintiff

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suffers severe emotional distress as a result of outrageous conduct by the defendant.”

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Soliman v. CVS RX Servs., Inc., 570 F. App’x 710, 711 (9th Cir. 2014). As mentioned

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above, the last time Rabadi and Majidian could have inflicted emotion distress on

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Kaldis was in February 2014, since Kaldis initially quit Wells Fargo at that time and

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was never again at their branch or under their management. Kaldis filed this action

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for IIED in state court on July 25, 2016—more than two years after the last

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emotionally distressing statements were allegedly made by Rabadi or Majidian. (See

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ECF No. 1, Ex. A.) Thus, Kaldis’ IIED claims against Rabadi and Majidian are

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barred by the statute of limitations.

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3.

IIED Claim Against El Hage

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While Kaldis’ IIED claim against El Hage is not barred by the two-year statute

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of limitations (as El Hage allegedly inflicted emotional distress on Plaintiff through

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2015), Wells Fargo correctly argues that the claim is barred by the Worker’s

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Compensation Act.

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California Supreme Court has held that when the “alleged wrongful conduct . . .

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occur[s] at the worksite, in the normal course of the employer-employee relationship

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. . . workers’ compensation is a plaintiff[’s] exclusive remedy for any injury that may”

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result. Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 902 (2008). Further,

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“[w]here [the] alleged misconduct by an employer is a normal part of the employment

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relationship, such as demotions, criticism, and negotiations of grievances, an

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employee who suffers emotional distress cannot avoid the exclusivity rule by simply

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characterizing the employer’s decisions as manifestly unfair, outrageous, harassment,

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or intended to cause emotional disturbance resulting in disability.” Langevin v. Fed.

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Exp. Corp., No. CV 14-08105 MMM (FFMx), 2015 WL 1006367, at *12 (C.D. Cal.

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Mar. 6, 2015) (holding that the individual defendants were fraudulently joined and

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denying the plaintiffs’ motion for remand); see also Yau v. Santa Margarita Ford Inc.,

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229 Cal. App. 4th 144, 162 (2014) (upholding the trial court’s ruling that the Worker’s

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Compensation Act provided the sole remedy for the plaintiff’s IIED claims).

(Not. ¶ 17–18.); see Cal. Lab. Code § 3200, et seq.

The

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All of the IIED that Kaldis allegedly suffered at the hands of El Hage occurred

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during the normal course of their employer-employee relationship. (Compl. ¶ 11(i).)

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The claims are based solely on El Hage’s personnel management decisions. (Id.); see

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Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 80 (1996) (“[a] simple

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pleading of personnel management activity is insufficient to support a claim of

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intentional infliction of emotional distress, even if improper motivation is alleged”).

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Thus, the Worker’s Compensation Act bars Kaldis from asserting her IIED claim

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against El Hage in this Court.2

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A defendant bears a heavy burden in establishing that other defendants have

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been fraudulently joined to a cause of action. But Wells Fargo has satisfied that

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burden here because Kaldis failed to exhaust her administrative remedies against

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Defendants regarding her FEHA harassment claims and cannot establish her IIED

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claims due to the statute of limitations and protection of managerial activities.

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C.

Amount in Controversy

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Finally, Kaldis argues that Wells Fargo has not established that the amount in

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controversy actually exceeds $75,000. (Mot. 13–14.) When a plaintiff contests the

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defendant's allegation that the amount in controversy exceeds $75,000, “section

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1446(c)(2)(B) instructs: ‘[R]emoval . . . is proper on the basis of an amount in

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controversy asserted’ by the defendant ‘if the district court finds, by the

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preponderance of the evidence, that the amount in controversy exceeds’ the

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jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.

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Ct. 547, 553–54 (2014); 28 U.S.C. § 1446. Discovery may then be taken, and “[i]n

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case of a dispute, the district court must make findings of jurisdictional fact to which

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the preponderance standard applies.”

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omitted)).

Dart, 135 S. Ct. at 554 (internal citations

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Kaldis never actually claims that the amount in controversy does not exceed

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$75,000. Rather, she cites Kenneth Rothschild Trust v. Morgan Stanley Dean Witter,

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199 F. Supp. 2d 993 (C.D. Cal. 2002), to argue that a “‘defendant must submit

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summary-judgment type evidence to establish that the actual amount in controversy

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exceeds $75,000.’” (Mot. 14.) But the Supreme Court established in 2014 that “a

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In her Complaint, Kaldis seems to imply that Rabadi’s friendship with El Hage contributed in some
way to El Hage’s mistreatment of Kaldis. (See Compl. ¶ 11(i).) To the extent Kaldis is alleging
such a theory of liability, it is also barred by the Worker’s Compensation Act, for the action El Hage
ultimately took against Kaldis occurred in the normal course of their employer-employee
relationship.

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defendant’s notice of removal need include only a plausible allegation that the amount

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in controversy exceeds the jurisdictional threshold.” Dart, 135 S. Ct. at 554. Any

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“evidence establishing the amount is required by § 1446(c)(2)(B) only when the

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plaintiff contests, or the court questions, the defendant’s allegation.” Id.

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Here, Wells Fargo did all that was required of it to establish that Kaldis’ claims

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clear the $75,000 threshold. First, Wells Fargo stated a plausible allegation that the

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amount in controversy exceeded the jurisdictional threshold in its Notice of Removal,

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analyzing Kaldis’ lost earnings due to her firing, potential emotional distress damages

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she could recover in excess of $75,000, potential attorneys’ fees that could total up to

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$90,000, and the massive punitive damages she could potentially recover. (NOR ¶¶

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24–27.) Second, when Kaldis actually contested the amount in controversy in her

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Motion to Remand, Wells Fargo responded with evidence that a victory for Kaldis in

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the case would exceed the $75,000 threshold by providing evidence of her hourly

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wages and citing comparable cases in which lost wages, emotional distress damages,

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punitive damages, and attorney’s fees under FEHA each individually exceeded or

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came close to exceeding the threshold. (Opp’n 11–15; Campbell Decl. ¶ 7.) Thus, the

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Court finds that Defendants have sufficiently established that the amount in

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controversy exceeds $75,000.

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V.

CONCLUSION

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Because the Court finds that Defendants Najla Rabadi, Sara Majidian, and Rita

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El Hage were fraudulently joined and the amount in controversy exceeds $75,000, it

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has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1332. The

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Court therefore DENIES Kaldis’ Motion to Remand. (ECF No. 9.) Furthermore,

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based on the foregoing analysis, the Court DISMISSES Rabadi, Majidian, and El

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Hage from this action with prejudice.

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IT IS SO ORDERED.

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October 28, 2016

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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