Chalissa Johnson v. Hertz Local Edition Corporation et al

Filing 14

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Plaintiff's motion to remand 10 is GRANTED. This matter shall be remanded to the Los Angeles Superior Court, Case No. BC628475, forthwith. ( MD JS-6. Case Terminated. ) Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

Present: The Honorable

Date

January 9, 2017

CHRISTINA A. SNYDER

Ingrid Valdes

Laura Elias

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Andre Bates

Irene Tatevosyan

Proceedings:

I.

PLAINTIFF’S MOTION TO REMAND (Dkt. 10, Filed December
9, 2016)

INTRODUCTION

On July 28, 2016, Chalissa Johnson filed a complaint in the Los Angeles Superior
Court against Hertz Local Edition Corporation, Hertz Corporation (collectively “Hertz”),
and Does one through 100. On September 30, 2016, plaintiff filed the operative First
Amended Complaint. Dkt. 1 Ex. A (“FAC”). Defendants were first served in this action
on October 10, 2016. Removal ¶ 3. On or around November 8, 2016, defendants
removed this action to federal court. Dkt. 1. Defendants contend that the Court has
diversity jurisdiction over this action.
The FAC alleges two claims, namely, constructive wrongful termination and
failure to timely provide itemized wage statements in violation of California Labor Code
section 226(c). The gravamen of plaintiff’s claims is that plaintiff was constructively
terminated from her employment at Hertz in retaliation for plaintiff’s attempts to seek a
lunch period, breaks, and overtime pay as required by law.
On December 9, 2016, plaintiff filed a motion to remand this action to state court
because the amount-in-controversy requirement is not satisfied.1 Dkt. 10. On December
Defendants assert that plaintiff is a citizen of California and the Hertz defendants
are citizens of both Delaware and Florida. Notice of Removal ¶¶ 9-10. Plaintiff does not
contest complete diversity of citizenship.
1

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Date

January 9, 2017

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

19, 2016, defendants filed an opposition. Dkt. 12. On December 23, 2016, plaintiff filed
a reply. Dkt. 13.
Having carefully considered the parties arguments, the Court finds and concludes
as follows.
II.

BACKGROUND

Unless otherwise noted, the following background is based upon the allegations in
the FAC.
Johnson is a 25-year-old single mother with a disabled child. FAC ¶ 1. In
December 2014, Johnson took a position as a Service Sales Associate at Hertz. Id. ¶ 2.
Johnson alleges that during her time at Hertz she was required to work “off-the-clock”
and during meal and rest periods. Id. Johnson alleges that she was required to work
more than 40 hours per week and more than eight hours per day, but was not
compensated for any time worked outside her normal hours. Id. Although she
complained about the foregoing problems, management refused to resolve any of the
issues or improve conditions. Id.
Instead, according to Johnson, Hertz management began to intimidate and coerce
Johnson into dropping her complaints. Id. The more Johnson raised concerns, the more
aggressive Hertz management became towards her. Id. Johnson alleges that her manager
bullied and mocked her, was dismissive of her complaints, retaliated against Johnson by
severely reprimanding her for minor mistakes, and encouraged other employees to
mistreat and harass plaintiff. Id. ¶ 27. Rather than address Johnson’s complaints,
Johnson’s manager allegedly retaliated against her by forcing her to perform more work
without pay than before, switching her to the night shift without any justification or
discussion, failing to provide any itemized wage statements so that Johnson could verify
she had been appropriately paid, and awarding one of Johnson’s $200 to $300
commissions to a co-worker. Id. According to Johnson, the foregoing created a hostile
work environment. Id.
Johnson alleges that the foregoing conditions were “sufficiently extraordinary,
intolerable, and egregious so as to overcome the normal motivation of a competent,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Date

January 9, 2017

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

diligent, and reasonable employee, such as [p]laintiff, to remain employed.” Id. ¶ 28. As
a result, Johnson was forced to stop working for Hertz. Id. ¶ 29. Johnson left her
position with Hertz in April 2015. Id. ¶ 2. Johnson claims that defendants’ conduct was
willful and done with the intention of causing injury to Johnson. Id. ¶ 30.
III.

LEGAL STANDARDS

A motion for remand is the proper procedure for challenging removal. Remand
may be ordered either for lack of subject matter jurisdiction or for any defect in removal
procedure. See 28 U.S .C. § 1447(c). Courts strictly construe the removal statutes
against removal jurisdiction, and jurisdiction must be rejected if there is any doubt as to
the right of removal. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). The
party seeking removal bears the burden of establishing federal jurisdiction. See Prize
Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir.1999).
Defendants contend that the Court has diversity jurisdiction over this action. In
order to establish removal jurisdiction over a diversity action pursuant to 28 U.S.C. §
1332, the removing defendant must demonstrate that (1) the amount in controversy
exceeds $75,000, and (2) the suit is between citizens of different states. The removing
party bears the burden of showing that the amount in controversy exceeds $75,000.
Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.1996). This sum is
determined as of the date of removal. Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166
F.3d 214, 217–18 (3rd Cir.1999). “[T]he amount in controversy is simply an estimate of
the total amount in dispute, not a prospective assessment of [the] defendant's liability.”
Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir.2010). Accordingly, “in
assessing the amount in controversy, a court must ‘assume that the allegations of the
complaint are true and assume that a jury will return a verdict for the plaintiff on all
claims made in the complaint.’ ” Campbell v. Vitran Express, Inc., 471 Fed.Appx. 646,
648 (9th Cir.2012) (quoting Kenneth Rothschild Trust v. Morgan Stanley Dean Witter,
199 F.Supp.2d 993, 1001 (C.D.Cal.2002)).
The removing party need only include a “short and plain statement” setting forth “a
plausible allegation that the amount in controversy exceeds the jurisdictional threshold.”
Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547, 554 (2014). Where the
plaintiff contests the removing defendant's allegations, however, “both sides submit proof
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Date

January 9, 2017

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

and the court decides, by a preponderance of the evidence, whether the amount-incontroversy requirement has been satisfied.” Id. at 550.
IV.

DISCUSSION

Plaintiff does not allege a specific amount of damages. Instead, plaintiff seeks a
$750 penalty pursuant to California Labor Code § 226(f), compensatory damages, and
punitive damages. FAC Relief Requested. Each is appropriately considered in
calculating the amount in controversy. 2 Neither party disputes that the $750 penalty is in
controversy pursuant to California Labor Code § 226(f). Accordingly, the Court
proceeds to evaluate compensatory and punitive damages.
A.

Compensatory Damages

Hertz argues that two forms of compensatory damages are at issue in this action,
lost wages and damages for emotional distress.
With respect to lost wages, Hertz presents evidence that plaintiff was a full-time
employee whose final hourly wage was $12 per hour. Dkt. 1 Earls Decl. ¶ 9. Hertz
argues that backpay should be calculated by multiplying $12 per hour, 40 hours per week,
and 65 weeks. Opp’n at 4 (“Plaintiff’s backpay to the date of removal”). Hertz
calculates back wages to be $31,200. Plaintiff does not challenge this calculation except
to the extent it assumes that “[p]laintiff remained unemployed during the entire period
since her constructive termination in April of last year.” Mot. at 2.
Plaintiff offers no evidence suggesting that her backpay may be offset by other
employment earnings since she left Hertz. As Hertz correctly points out, such
2

Plaintiff further seeks pre-judgment and post-judgment interest, costs, and an
award of attorney’s fees “to the extent provided by law.” Id. However, neither party has
briefed the availability of the foregoing relief, nor have defendants attempted to
demonstrate that the foregoing should be considered part of the amount-in-controversy or
how they should be calculated. Accordingly, the Court focuses its analysis upon
compensatory damages, punitive damages, and the statutory penalty pursuant to
California Labor Code § 226(f).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Date

January 9, 2017

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

information is uniquely within plaintiff’s possession. Absent evidence to the contrary,
defendant has adequately established that the amount in controversy should include $12
per hour for each work week since plaintiff left Hertz.
It is unclear, however, why defendants chose to make their calculation based upon
65 weeks without work. Neither party presents evidence of when in April 2015 plaintiff
left Hertz; however, between April 30, 2015, and November 8, 2016, the date of removal,
approximately 80 weeks elapsed. Accordingly, the Court estimates the amount of lost
wages in controversy to be $12 per hour times 40 hours per week times 80 weeks, or
$38,400.
Defendant next argues that plaintiff may be entitled to damages for emotional
distress. However, the Court sees no basis for the inclusion of damages for emotional
distress. Although tort damages, like damages for emotional distress, are available
pursuant to plaintiff’s claim for constructive wrongful termination in violation of public
policy, see Erlich v. Menezes, 21 Cal. 4th 543, 552, 981 P.2d 978, 983 (1999), defendant
does not offer an adequate basis for estimating damages from emotional distress here.
To evaluate the amount of emotional distress damages at issue, the Court may rely
upon emotional distress awards in “similar cases.” Kroske v. U.S. Bank Corp., 432 F.3d
976, 980 (9th Cir. 2005), as amended on denial of reh'g and reh'g en banc (Feb. 13,
2006). Hertz directs the Court to two cases for comparison here, namely, T.J. Simers v.
Tribune Co., 2015 Jury Verdicts LEXIS 9723 (Cal. Sup. 2015) and Velasquez v. County
of Ventura, 2011 Jury Verdicts LEXIS 200672 (Cal. Sup. 2011). Neither is analogous to
the instant case.
In T.J. Simers, the plaintiff was wrongfully terminated by the Los Angeles Times
after 23 years of distinguished work. After suffering a stroke and being diagnosed with
complex migraine syndrome, the 63-year-old plaintiff was terminated as a result of age
and disability discrimination. After the plaintiff complained about discrimination and
harassment, his employer took disciplinary actions against the plaintiff for fabricated
ethical violations. The employer demoted plaintiff and retaliated out of discriminatory
animus. Thereafter, the plaintiff felt compelled to leave work. After trial, a jury awarded
Simers $2,500,000 for “past noneconomic loss” and $2,500,000 for “future noneconomic
loss.” T.J. Simers, 2015 Jury Verdicts LEXIS 9723.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Date

January 9, 2017

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

Velazquez was also a case rooted in discrimination and retaliation for complaints
about discrimination. In Velazquez, a senior investigator with the Ventura County
District Attorney’s Office faced constructive termination in retaliation for giving
testimony is support of two gender discrimination lawsuits against his employer.
Because of his testimony in gender discrimination cases by former colleagues, the
plaintiff was subjected to two internal affairs investigations, demoted, and denied a
promotion. The plaintiff was awarded $750,000 for pain and suffering. Velazquez, 2011
Jury Verdicts LEXIS 200672.
Hertz argues that damages for emotional distress may be available in this case
because Johnson alleges that Hertz created an intolerable work environment, intimidated
her, and encouraged employees to “mistreat and harass” plaintiff by “telling them she is
‘sneaky’” while also “tolerating and encouraging aggressive behavior towards Ms.
Johnson.” FAC ¶ 4. However, Hertz does not demonstrate that the foregoing allegations
are similar to those in Velazquez or J.T. Simers. In the instant case, as an initial matter,
plaintiff does not allege any emotional injury or distress. Johnson may well have
suffered emotional distress, not described in the FAC. However, the damage awards
cited by defendant have little to no bearing on the potential damages award in this action.
Plaintiff does not allege that she was the victim of discrimination, that her employer
fabricated misconduct as a pretext to scrutinize and isolate her, or that she was
constructively terminated from a position she held for decades. Accordingly, Hertz has
not satisfied its burden of demonstrating that a large amount of damages from emotional
distress may be at issue in the instant case.
B.

Punitive Damages

Hertz similarly seeks to establish an estimated amount of punitive damages by
comparison to awards in other cases. Specifically, Hertz refers the Court to Torres v.
B.E. Aerospace Inc., 2016 WL 3552983 (Cal. Sup. 2016) ($7,000,000 in punitive
damages), Alexander v. Cmty. Hosp. of Long Beach, 2016 WL 4942450 (Cal. Sup. 2016)
(two plaintiffs received awards of $100,000 in punitive damages and a third received
$1,500,000), and Virginia Pansacola v. Malaysia Airlines, 2011 Jury Verdicts LEXIS
2840 (Cal. Sup. 2011) ($160,000 in punitive damages).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Date

January 9, 2017

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

None of the punitive damages awards cited by Hertz bear upon the amount-incontroversy here. All three of the cases involve gender discrimination and numerous
claims for relief that are not present here. They also involved more egregious conduct
than alleged here. In Torres, the plaintiff brought claims for discrimination and wrongful
termination. Torres, 2016 WL 3552983. She alleged that she was fired after 24 years of
employment because of age and gender discrimination. Id. After a new supervisor took
over, her supervisor stripped her of authority, “constantly humiliated and demeaned her
in front of her staff,” and sabotaged her work. Id. Before being terminated, she was
forced to train her substantially younger replacement, after which her employer lied about
her position being eliminated. Id. In Alexander, three employees brought sexual
harassment, discrimination, defamation, negligent supervision, retaliation, and wrongful
termination claims against their former employer. Alexander, 2016 WL 4942450. Each
claimed to have faced discrimination in the workplace based upon their sexual orientation
and gender. Id. Furthermore, their supervisor frequently made sexually explicit and
offensive comments as well as gestures. Id. They were terminated after their supervisor
fabricated an incident with a patient, sought to have their nursing licenses revoked, and
reported the fabricated incident to the California Department of Public Health in order to
have them prosecuted. Id. Finally, in Virginia Pensacola, the plaintiff brought claims for
sexual harassment, discrimination, intentional infliction of emotional distress, retaliation,
wrongful termination, failure to prevent sexual harassment and discrimination, assault,
and battery claims. Virginia Pensacola, 2011 Jury Verdicts LEXIS 2840. Plaintiff had
been sexually harassed and sexually assaulted by an immediate supervisor. Id. When she
complained, she was demoted and told to resign. Id.
In this case, plaintiff does not allege sexual discrimination or any discriminatory
motive on the part of Hertz. Nor does plaintiff allege any acts committed by Hertz or its
employees that were sexual in nature. In contrast to the foregoing cases in which the
plaintiffs sought punitive damages for numerous claims arising out of discriminatory
animus, Johnson alleges that her work conditions were intolerable because she was
forced to work through state mandated breaks and faced retaliation when she complained.
Even the retaliation present in Torres, Alexander, and Virginia Pensacola, was
substantially different than Johnson alleges. Johnson alleges that she was moved to the
night shift, forced to work longer hours, and was bullied and mocked in retaliation for
complaints. Johnson does not allege, as in Torres, that she was demoted, constantly
humiliated, demeaned, and sabotaged because of discriminatory animus. Nor does
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Date

January 9, 2017

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

Johnson allege, as in Alexander, that she was defamed, sexually mocked, and faced state
prosecution based upon fabricated conduct. Finally, Johnson does not allege a sexual
assault, as in Virginia Pensacola, let alone one committed alongside outrageous conduct
sufficient to bring an intentional infliction of emotional distress claim.
The Court is mindful that Hertz is not required to submit evidence of punitive
damages awards in an identical case as this one. Such a requirement would impose too
great an evidentiary burden on the removing party. See Simmons v. PCR Tech., 209 F.
Supp. 2d 1029, 1033 (N.D. Cal. 2002) (“The fact that the cited cases involve
distinguishable facts is not dispositive”). However, Hertz must demonstrate that the
amount-in-controversy exceeds $75,000 by a preponderance of the evidence. Although,
for purposes of the instant motion, the Court assumes the truth of Johnson’s allegations
and that a jury will rule in Johnson’s favor on all of her claims, Johnson’s allegations are
not sufficiently similar to those in Torres, Alexander, or Virginia for these cases to act as
a guide for estimating damages here beyond bare speculation.
From plaintiff’s allegations, the Court can discern that some of punitive damages
are at issue. Based upon Hertz’s submissions, the amount-in-controversy appears to be
$39,1503 plus damages for potential emotional damages (which are not alleged and for
which defendant offers no reasonable basis for estimation) and undetermined punitive
damages (similarly inestimable). Put simply, neither side has submitted evidence
shedding light on what amount of emotional or punitive damages may be at issue in a
case analogous to Johnson’s. Accordingly, the Court concludes that Hertz has not
satisfied its burden of establishing that the amount-in-controversy exceeds $75,000.

3

$750 in statutory damages plus $38,400 in backpay.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6
“O”

CIVIL MINUTES - GENERAL
Case No.

CV 16-08323-CAS (JCx)

Title

CHALISSA JOHNSON V. HERTZ LOCAL EDITION CORPORATION
ET AL.

V.

Date

January 9, 2017

CONCLUSION

Plaintiff’s motion to remand is GRANTED. This matter shall be remanded to the
Los Angeles Superior Court forthwith.
IT IS SO ORDERED.
05
Initials of
Preparer

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IV

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