Guzman v. Gruma Corporation et al

Filing 38

ORDER signed by Judge Garland E. Burrell, Jr. on 4/2/2015 ORDERING that Plaintiff's 6 Motion to Remand is GRANTED. The Court Clerk shall REMAND this case to the Superior Court of California in the County of Fresno. Copy of remand order sent to other court. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OSCAR GUZMAN,

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Plaintiff,

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No. 1:15-cv-00159-GEB-SKO

v.

ORDER GRANTING PLAINTIFF’S
REMAND MOTION

GRUMA CORP., CHUCK DAWSON,
and DOES 1 through 20,
inclusive,

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Defendants.

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Plaintiff

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28

U.S.C.

moves
§

to

this

state

jurisdiction basis for removal does not exist, since Plaintiff

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alleges in his Complaint that both he and Defendant Chuck Dawson

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are California residents. Defendants counter that Dawson is a

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fraudulently joined defendant whose residency does not defeat

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diversity jurisdiction.

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“It

Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998).

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“If

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resident defendant, and the failure is obvious according to the

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well-settled rules of the state, the joinder is fraudulent and

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[that]

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purposes of determining diversity.” United Computer Sys., Inc. v.

defendant's

to

removal

state

presence

in

1

a

on

cause

the

diversity

joined

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fails

defeat

fraudulently

defendants

plaintiff

not

diversity

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a

will

that

the

court

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commonplace

that

to

under

a

contending

case

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is

1447(c),

remand

of

lawsuit

action

is

grounds.”

against

ignored

a

for

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AT&T

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citations

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analyzed on the basis of the pleadings filed at the time of

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removal

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Surgical Corp. v. Nat‟l Ass‟n of Sec. Dealers, 159 F.3d 1209,

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1213 (9th Cir. 1998).

Corp.,

298

F.3d

omitted).

without

756,

This

761

(9th

Cir.

2002)

“[j]urisdiction[al

reference

to

subsequent

(quotes

issue]

must

amendments.”

and
be

Sparta

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Under the involved analysis, “[a] remand motion must be

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granted unless [the removant] demonstrates that [a plaintiff]

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„would not be afforded leave [in state court] to amend [his]

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complaint to cure purported deficenc[ies].” Hernandez v. Ignite

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Rest. Grp., Inc., 917 F. Supp. 2d 1086, 1090 (E.D. Cal. 2013)

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(citing Burris v. AT&T Wireless, Inc., 2006 WL 2038040, at *2

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(N.D. Cal. Jul. 19, 2006). “[T]he removal statute is strictly

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construed against removal jurisdiction.” Gov‟t of Marinduque v.

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Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). Moreover,

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“any doubt about the right of removal requires resolution in

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favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d

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1241, 1244, (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d

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564, 566 (9th Cir. 1992)).

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The

parties

take

opposite

positions

on

whether

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Plaintiff could plead a harassment claim against Dawson under

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California law. Plaintiff alleges in his Complaint harassment

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claims against Dawson, under the California Fair Employment and

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Housing Act (“FEHA”), based on Plaintiff‟s disability and age.

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Specifically, Plaintiff alleges:

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[After]
former
owner[]
Roberto
Gonzalez
Barrera [died], the company dynamic changed.
Thereafter, an effort was made to hire
younger[]lower-paid employees to replace or
phase out senior employees. In early 2014,
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Defendant realigned three sales districts in
the Central Valley of California. As part of
the
realignment,
Plaintiff
assumed
responsibilities for the district previously
presided
over by former employee, John
Escalante.
At
Plaintiff‟s
2013
year-end
review,
conducted
in
February
2014,
Plaintiff
received high marks. Despite the favorable
review, Mr. Dawson sent Plaintiff a textmessage picture of John Escalante sticking
his middle finger up. Because Plaintiff
viewed the picture as offensive, with a
negative
subtext
about
his
continued
employment,
Plaintiff
complained
to
Mr.
Dawson that the message was unwelcome. In
response, Mr. Dawson conducted a second
performance review for the 2013 year. This
time, and unlike the first review for the
same 2013 year, in the second review,
Plaintiff received extremely negative marks.
(Notice of Removal Ex. A, Compl. (“Compl.”) ¶¶ 6-7, ECF No. 1-1.)
Thereafter,

Dawson

“put

Plaintiff

on

a

performance

plan.” (Id. ¶ 7.) Subsequently, Plaintiff took medical leave due
to “the onset of depression and anxiety,” and he informed Dawson
“that he had been diagnosed with generalized anxiety disorder
. . . [and] that his condition impacted his ability to sleep and
work.” (Id. ¶ 8.) Dawson then “shunned Plaintiff.” (Id. ¶ 9.)
Plaintiff alleges Dawson‟s conduct was “so severe and pervasive
that a reasonable person in Plaintiff‟s circumstances would have
found the work environment to be hostile or abusive,” and that he
suffered from a “changed work[] environment.” (Id. ¶¶ 44, 48.)
Plaintiff alleges he “was wrongfully terminated—two months before
his sixtieth birthday.”
Defendants

(Id. ¶ 9.)

argue

it

is

obvious

under

well-settled

California law that Plaintiff cannot allege an age or disability
harassment claim against Dawson. Specifically, Defendants argue

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Plaintiff‟s “allegations of harassment are based almost entirely

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on

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against

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normal

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avoided.”

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23.)

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personnel-management
a

supervisor

part

of

an

decisions[,]”

because

such

employment

which

are

non-actionable

actions

are

considered

relationship

that

cannot

“a
be

(Opp‟n to Mot. to Remand 15:1-5, 15:22-28, ECF No.

To establish a claim for harassment [under
the FEHA], a plaintiff must demonstrate: (1)
[]he is a member of a protected group; (2)
[]he was subjected to harassment because []he
belonged to this group; and (3) the alleged
harassment was so severe that it created a
hostile work environment. The plaintiff must
show a concerted pattern of harassment of a
repeated, routine or a generalized nature.
Unlike
discrimination
claims,
harassment
consists of actions outside the scope of job
duties which are not of a type necessary to
business
and
personnel
management.
For
example,
commonly
necessary
personnel
management actions such as hiring and firing,
job or project assignments, promotion or
demotion, and performance evaluations, do not
come within the meaning of harassment.
Lawler v. Montblanc North America, LLC, 704 F.3d 1235, 1244 (9th
Cir. 2013) (citations, ellipses, and quotations omitted).
Harassment “consists of actions outside the scope of
job duties which are not of a type necessary to business and
personnel management.” Lawler, 704 F.3d at 1244. However, “some
official employment actions done in furtherance of a supervisor‟s
managerial role can also have a secondary effect of communicating
a hostile message.” Roby v. McKesson Corp., 47 Cal. 4th 686, 709
(2009) (holding that official employment actions may constitute
the evidentiary basis of harassment claims if the actions are
used as a means of conveying an offensive message).
Defendants have not shown it is obvious under well4

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settled California law that Plaintiff would not be granted leave

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to

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Dawson. Therefore, Defendants have not established that Dawson is

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fraudulently

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granted.

amend

any

deficiencies

joined,

and

in

his

harassment

Plaintiff‟s

remand

claims

motion

against

will

be

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Plaintiff also requests, under 28 U.S.C. § 1447(c),

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attorney‟s fees incurred as a result of the removal. However,

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“[a]bsent unusual circumstances, courts may award attorney‟s fees

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under

§

1447(c)

only

reasonable

where
basis

the
for

removing
.

.

.

party

removal.”

lacked

an

Martin

v.

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objectively

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Franklin Capital Corp., 546 U.S. 132, 141 (2005). Plaintiff has

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not shown that Defendants lacked an objectively reasonable basis

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for the removal. Therefore, Plaintiff‟s request for attorney‟s

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fees is denied.

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Plaintiff‟s remand motion is granted, and the Court

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Clerk shall remand this case to the Superior Court of California

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in the County of Fresno.

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Dated:

April 2, 2015

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