Annabel Hernandez v. YP Advertising and Publishing LLC et al

Filing 20

MINUTES (In Chambers) Order Remanding Action by Judge Fernando M. Olguin: IT IS ORDERED THAT: (1) Plaintiff Motion to Remand (Document No. 10 ) is GRANTED in part and DENIED in part. The Motion is granted to the extent it seeks remand of the action to state court. The Motion is denied to the extent plaintiff seeks attorney's fees. (2) The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 North Hill Street, Los Angeles, California 90012, pursuant to 28 USC 1447(c). (3) The Clerk shall send a certified copy of this Order to the state court. (Made JS-6 Case Terminated. (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL
Case No.

CV 16-9612 FMO (AJWx)

Title

Annabel Hernandez v. YP Advertising and Publishing LLC

Present: The Honorable

Date

April 26, 2017

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorney Present for Plaintiff:

Attorney Present for Defendant:

None Present

None Present

Proceedings:

(In Chambers) Order Remanding Action

Having reviewed and considered all the briefing filed with respect to plaintiff’s Motion to
Remand Action to Superior Court (Dkt. 10, “Motion”), the court finds that oral argument is not
necessary to resolve the Motion, see Fed. R. Civ. P. 78; Local Rule 7-15; Willis v. Pac. Mar. Ass’n,
244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.
BACKGROUND
On August 18, 2016, plaintiff Annabel Hernandez (“plaintiff”) filed a Complaint in the Los
Angeles County Superior Court against “YP Advertising & Publishing, LLP” for: (1) wrongful
termination in violation of public policy; (2) wrongful termination in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et. seq.; and (3) unlawful business
practices, in violation of California Business & Professions Code §§ 17200, et seq. (See Dkt. 1-1,
Complaint at ¶¶ 15-37). Plaintiff filed a First Amended Complaint on November 30, 2016,
asserting the same claims. (See Dkt. 1-2, First Amended Complaint (“FAC”) at ¶¶ 15-37). On
December 29, 2016, YP Advertising and Publishing LLC (“defendant”) removed the action to this
court on the basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441. (See
Dkt. 1, Notice of Removal (“NOR”) at 1).

LEGAL STANDARD
In general, “any civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the defendants, to the
district court[.]” 28 U.S.C. § 1441(a). A removing defendant bears the burden of establishing that
removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (“The strong
presumption against removal jurisdiction means that the defendant always has the burden of
establishing that removal is proper.”) (internal quotation marks omitted); Abrego Abrego v. The
Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting the “longstanding, nearcanonical rule that the burden on removal rests with the removing defendant”). Moreover, if there
is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-9612 FMO (AJWx)

Date

Title

Annabel Hernandez v. YP Advertising and Publishing LLC

April 26, 2017

doubts in favor of remanding the action to state court. See Gaus, 980 F.2d at 566 (“Federal
jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”).
Indeed, “[i]f at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); see Kelton Arms Condo. Owners
Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (“Subject matter
jurisdiction may not be waived, and, indeed, we have held that the district court must remand if
it lacks jurisdiction.”).
Title 28 U.S.C. § 1446(b)(1) requires a defendant to file a notice of removal “within 30 days
after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceeding is based.” However, “if the
case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days
after receipt by the defendant, through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one which is
or has become removable.” 28 U.S.C. § 1446(b)(3).
DISCUSSION
I.

WHETHER REMOVAL WAS TIMELY.

“[A] named defendant’s time to remove is triggered by simultaneous service of the
summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart
from service of the summons, but not by mere receipt of the complaint unattended by any formal
service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322,
1325 (1999). “After a defendant learns that an action is removable, he has thirty days to remove
the case to federal court.” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir.
2006). The period “starts to run from defendant’s receipt of the initial pleading only when that
pleading affirmatively reveals on its face the facts necessary for federal court jurisdiction.” Id.
(internal quotation marks omitted). “Otherwise, the thirty-day clock doesn’t begin ticking until a
defendant receives a copy of an amended pleading, motion, order or other paper from which it can
determine that the case is removable.” Id. (internal quotation marks omitted).
Here, the parties agree that defendant was formally served with the summons and
Complaint on November 4, 2016. (See Dkt. 10, Motion at 3; Dkt. 1, NOR at ¶ 6). However,
defendant did not remove the action until December 29, 2016, (see Dkt. 1, NOR), after the
deadline for removal had expired.
Defendant points out that plaintiff’s Complaint names an apparently non-existent entity
called YP Advertising & Publishing LLP as defendant while defendant is actually named YP
Advertising and Publishing LLC. (See Dkt. 14, Defendant’s [] Opposition to Plaintiff’s Motion to
Remand to Superior Court (“Opp.”) at 2). Based on this misnomer, defendant argues that its
removal was timely because it was not named in the Complaint, and therefore it “had no ability or
legal obligation to remove the complaint until it was actually named as a defendant on November
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-9612 FMO (AJWx)

Date

Title

Annabel Hernandez v. YP Advertising and Publishing LLC

April 26, 2017

30, 2016.” (See id.). The court disagrees.
“[T]he sufficiency of service of process prior to removal is strictly a state law issue[.]” Lee
v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir. 1993), overruled on other grounds by,
California Dept. of Water Res. v. Powerex Corp., 533 F.3d 1087, 1096 (9th Cir. 2008); see
Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (applying California law to determine if
defendants were properly served); Song v. KBOS, Inc., 2015 WL 5162556, *3 (D. Haw. 2015)
(“Because . . . service of process was attempted in this case prior to removal to federal court, the
sufficiency of that service must be assessed in accordance with [] state law.”). In California,
“statutory provisions regarding service of process” are “liberally construed to effectuate service
and uphold the jurisdiction of the court if actual notice has been received by the defendant[.]” Dill
v. Berquist Constr. Co., 24 Cal.App.4th 1426, 1436-1437 (1994) (internal quotation marks
omitted). California law has long held that where a defendant’s “agent receive[s] the summons
and kn[o]w[s] the contents of the complaint[,]” a court acquires jurisdiction over the defendant even
though there is a misnomer in the name of the defendant. See Thompson v. S. Pac. Co., 180 Cal.
730, 734 (1919); Stephens v. Berry, 249 Cal.App.2d 474, 478 (1967) (noting general rule that
when, “through clerical error, a mistake has been made in stating the correct name of a defendant,
the error may be corrected at any time before judgment”); Canifax v. Hercules Powder Co., 237
Cal.App.2d 44, 58 (1965) (“Here also Coast Manufacturing was neither prejudiced nor misled. It
was given full notice that it was the party intended to be sued and the status in which it has been
included as a defendant.”). In short, where service has been properly made and “‘the person
served is aware that he is the person named as a defendant in the erroneous manner, jurisdiction
is obtained.’” Sakaguchi v. Sakaguchi, 173 Cal.App.4th 852, 857 (2009) (quoting Billings v.
Edwards, 91 Cal.App.3d 826, 831 (1979) (corporation was properly served despite “minor
variances in nomenclature” of its name when the defendant received actual notice and was not
misled)); see Plumlee v. Poag, 150 Cal.App.3d 541, 547 (1984) (“Where full notice is given and
a reasonably prudent person would realize that he is the party intended to be named as the
defendant, the court should treat the mistake as harmless misnomer in order to promote
substantive rights.”) (internal quotation marks omitted).
Here, defendant acknowledges that it was properly served in compliance with California
law – effectively conceding that it was the defendant named in the original Complaint – stating
that on “November 4, 2016, Plaintiff served a copy of the Summons and Complaint and related
papers to Defendant through its agent for service of process.” (See Dkt. 1, NOR at ¶ 6). Despite
this concession, defendant claims that removal was not necessary within 30 days of receiving the
original Complaint because it was not a named defendant until the FAC was filed. (See Dkt. 14,
Opp. at 3-4). The premise of defendant’s argument is that it was not a party in the underlying
state court action because it was incorrectly named as a defendant in the original Complaint.
However, “minor errors in the name of a defendant, through misspelling or other error do not
render the summons substantially defective when the summons and complaint are actually
received by the defendant and the defendant is not misled by the error[.]” East Bay Mun. Utility
Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 2009 WL 975442, *3 (N.D. Cal. 2009). Further,
defendant does not provide any authority or evidence that it was not a party in the underlying state
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-9612 FMO (AJWx)

Date

Title

Annabel Hernandez v. YP Advertising and Publishing LLC

April 26, 2017

court action. (See, generally, Opp.). If defendant was truly not the party named in the original
Complaint – whether through misspelling, clerical error, or other error – then it should have filed
a motion to quash or dismiss the Complaint on the ground that it was not a proper party in the
action.
Once a defendant receives a pleading or other document that contains information from
which removability may be ascertained, defendant has an obligation “to apply a reasonable
amount of intelligence in ascertaining removability.” Kuxhausen v. BMW Fin. Servs. NA LLC, 707
F.3d 1136, 1140 (9th Cir. 2013) (internal quotation marks omitted). “A defendant should not be
able to ignore pleadings or other documents from which removability may be ascertained and seek
removal only when it becomes strategically advantageous for it to do so.” Roth v. CHA Hollywood
Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013); see e.g., Brown v. Demco, Inc., 792 F.2d
478, 481 (5th Cir. 1986) (“In the absence of waiver of the time limit by the plaintiff, or some
equitable reason why that limit should not be applied, . . . a defendant who does not timely assert
the right to remove loses that right.”). Here, the initial Complaint included an ADEA claim, set forth
allegations that defendant was plaintiff’s former employer, identified individuals employed by
defendant, and referenced specific events related to defendant’s reduction in force. (See Dkt. 1-1,
Complaint at ¶¶ 1-2 & 4-14); see also Ware v. Wyndham Worldwide Inc., 2010 WL 2545168, *5
(D. N.J. 2010) (“[t]he complaint alleged in detail numerous acts of misconduct performed by
[defendant], and the very purpose of the complaint was to seek relief from Plaintiff’s employer”)
(emphasis omitted). Putting aside the fact that by not challenging the service of the original
Complaint and summons, defendant effectively conceded that it was the party named in the
Complaint, there is no doubt that, had defendant applied a reasonable amount of intelligence to
ascertaining removability on the basis of the original Complaint, it would have determined that the
action was immediately removable because the Complaint asserted an ADEA claim and there was
no reason to believe that plaintiff’s employer was someone other than defendant – the party
named in the Complaint, albeit with a minor error.1 See, e.g., Billings, 91 Cal.App.3d at 831
(service proper even with misspelling of defendant’s name when the summons and complaint were
received and there was no indication anyone was misled). In short, a reasonably prudent entity
under the circumstances here “would realize that [it was] the party intended to be named as the
defendant.” Plumlee,150 Cal.App.3d at 547. In other words, “[a] reasonable entity presented with
service under these facts would conclude from an initial glance at the complaint that Plaintiff
clearly intended to sue her employer and only her employer, and that Plaintiff was mistaken as to
her employer’s proper corporate name.”2 Ware, 2010 WL 2545168, at *5.

1

Defendant does not argue that it was misled by plaintiff’s minor mistake in identifying
defendant as a “LLP” instead of a “LLC.” (See, generally, Dkt. 14, Opp.).
2

Defendant’s argument that it should be considered a later-served defendant for purposes
of removal, (see Dkt. 14, Opp. at 3-4), is unpersuasive and has been rejected by other federal
courts because “[t]he purpose of the later-served defendant rule is fairness . . . [and] not to enable
defendants to exploit pleading errors[.]” HSBC Bank USA v. Mohanna, 2015 WL 4776236, *5
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-9612 FMO (AJWx)

Date

Title

Annabel Hernandez v. YP Advertising and Publishing LLC

April 26, 2017

Here, the original Complaint asserted an ADEA claim and apart from the minor error in the
name of defendant, the Complaint and FAC are nearly identical. (Compare Dkt. 1-1, Complaint
with Dkt. 1-2, FAC). Thus, the basis for federal jurisdiction was plainly evident on the face of the
original Complaint. (See Dkt. 1-1, Complaint at ¶¶ 26-31). The 30 day period for removal started
to run on November 4, 2016, when defendant was properly served with the summons and
Complaint under California law. Therefore, defendant was required to remove the action no later
than December 4, 2016, but did not do so until December 29, 2016. See 28 U.S.C. § 1446(b)(1).
Thus, the removal was untimely, and the case must be remanded. See Smith v. Mylan, Inc., 761
F.3d 1042, 1045 (9th Cir. 2014) (The 30 day time limit “is mandatory and a timely objection to a
late petition will defeat removal[.]”) (internal quotation marks omitted).
II.

ATTORNEY’S FEES.

Plaintiff requests attorney’s fees in connection with her Motion. (See Dkt. 10, Motion at 6).
Section 1447(c) provides in relevant part that “[a]n order remanding the case may require payment
of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney’s fees under §
1447(c) only where the removing party lacked an objectively reasonable basis for seeking
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 711 (2005). Here,
the court finds that defendant did not lack an objectively reasonable basis for removal.
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT:
1. Plaintiff’s Motion to Remand (Document No. 10) is granted in part and denied in part.
The Motion is granted to the extent it seeks remand of the action to state court. The Motion is
denied to the extent plaintiff seeks attorney’s fees.

(N.D. Cal. 2015); see Howell v. Forest Pharm., 2015 WL 5561838, *2 (E.D. Mo. 2015) (concluding
that the later-served defendant rule did not apply because “the amended complaint involved the
substitution of a properly-named entity for an improperly-named defendant with the same claims
as the original complaint”). “In nearly every other case involving a misnamed defendant, or even
the addition of a new defendant closely aligned with an existing one, the courts have declined to
extend the initial 30-day period of removal.” lulianelli v. Lionel, L.L.C., 183 F.Supp.2d 962, 966
(E.D. Mich. 2002) (collecting cases); see, e.g., Aranda v. Foamex Intern., 884 F.Supp.2d 1186,
1209-1214 (D. N.M. 2012) (concluding that in light of numerous “misonomer cases” the defendant
was properly served under New Mexico law and consequently defendant had failed to remove
within 30 days of service); In re Pharm. Indus. Average Wholesale Price Litig., 307 F.Supp.2d 190,
196 (D. Mass. 2004) (“As a general rule of federal law, the misnomer of a corporation in a
summons is immaterial if it appears that the corporation could not have been, or was not misled.”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-9612 FMO (AJWx)

Date

Title

Annabel Hernandez v. YP Advertising and Publishing LLC

April 26, 2017

2. The above-captioned action shall be remanded to the Superior Court of the State of
California for the County of Los Angeles, 111 North Hill Street, Los Angeles, California 90012,
pursuant to 28 U.S.C. § 1447(c).
3. The Clerk shall send a certified copy of this Order to the state court.

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