Tolentino et al v. Costco Wholesale Corporation

Filing 12

ORDER signed by District Judge Kimberly J. Mueller on 02/06/18 GRANTING 5 Motion to Remand; case REMANDED to Solano County Superior Court. CASE CLOSED (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 MELODY TOLENTINO and VICTOR TOLENTINO, v. 14 16 ORDER Plaintiffs, 13 15 No. 2:17-cv-02425-KJM-DB COSTCO WHOLESALE CORPORATION and DOES 1-50, INCLUSIVE, Defendants. 17 18 19 Plaintiffs move to remand this personal injury action back to state court. 20 Defendant opposes. The court submitted the motion without a hearing on January 22, 2018. Min. 21 Order, ECF No. 10. For the following reasons, the court GRANTS plaintiffs’ motion. 22 I. BACKGROUND 23 On March 2, 2016, plaintiff Melody Tolentino (“Ms. Tolentino”) alleges she 24 slipped and fell on a “wet piece of fruit” at the Costco Wholesale Corporation (“Costco”) store in 25 Vallejo, California. Removal Not. Ex. A (“Compl.”), ECF No. 1-1 ¶¶ 15-17. Ms. Tolentino 26 alleges she suffered “severe injury to her knee requiring surgery” and “great mental, physical and 27 nervous pain and suffering.” Id. ¶¶ 17, 31. She further alleges her injuries will result in “some 28 permanent disability,” impaired earning capacity, and ongoing expenses for “medical services, x1 1 rays, drugs, [and] sundries reasonably required in the treatment and relief of her injuries.” Id. 2 ¶¶ 31-33. Her husband, plaintiff Victor Tolentino (“Mr. Tolentino”), alleges loss of consortium. 3 Id. ¶¶ 46–52. 4 On October 4, 2017, plaintiffs sued Costco in Solano County Superior Court for 5 premises liability, negligence and loss of consortium, seeking damages and costs. Id. at 8–9 6 (Prayer). 7 $25,000, they did not specify a sum sought. See id. ¶ 6. On November 16, 2017, Costco filed an 8 answer and a notice of removal based on diversity jurisdiction. Removal Not., ECF No. 1. On 9 December 14, 2017, plaintiffs moved to remand. Remand Mot., EFC No. 5. Costco opposes. Although plaintiffs filed an “unlimited civil case,” indicating damages exceeding 10 Opp’n, ECF No. 8. Plaintiffs did not file a reply. 11 II. LEGAL STANDARD 12 “[A]ny civil action brought in a State court of which the district courts of the 13 United States have original jurisdiction, may be removed by the defendant or the defendants, to 14 the district court of the United States for the district and division embracing the place where such 15 action is pending.” 16 established through either (1) federal question jurisdiction under 28 U.S.C. § 1331 or (2) diversity 17 jurisdiction under 28 U.S.C. § 1332. “[R]emoval statutes should be construed narrowly in favor 18 of remand to protect the jurisdiction of state courts.” Harris v. Bankers Life and Cas. Co., 425 19 F.3d 689, 698 (9th Cir. 2005). “[T]he defendant always has the burden of establishing that 20 removal is proper, and [] the court resolves all ambiguity in favor of remand to state court.” 21 Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (internal quotation marks and 22 citations omitted). “[I]f there is any doubt as to the right of removal in the first instance[,]” the 23 case should be remanded. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 24 III. 28 U.S.C. § 1441(a). Generally, subject matter jurisdiction may be DISCUSSION 25 Costco contends this court has diversity jurisdiction. Removal Not. ¶¶ 6-12. 26 Diversity jurisdiction exists only if there is (1) complete diversity of citizenship among the 27 parties, and (2) an amount in controversy exceeding $75,000.00. 28 U.S.C. § 1332(a). The 28 parties agree they are completely diverse. Joint Status Report, ECF No. 9 at ¶ E. Plaintiffs are 2 1 California citizens and Costco is a citizen of Washington State. Compl. ¶ 7 (plaintiffs reside in 2 Vallejo, California); Removal Not. ¶¶ 7-8 (Costco is incorporated and has its principal place of 3 business in Washington State). The sole question is whether the amount in controversy exceeds 4 $75,000. 5 Plaintiffs’ complaint does not expressly plead more than $75,000 in damages. See 6 Compl. ¶ 6 (alleging damages exceed $25,000 for purposes of classifying case as “unlimited”); 7 see also Cal. Civ. Proc. Code § 425.10(b) (“where an action is brought to recover actual or 8 punitive damages for personal injury . . . , the amount demanded shall not be stated . . . .”). 9 When, as here, the amount in controversy is unclear or ambiguous from the face of the complaint, 10 the defendant has the burden to prove by a preponderance of the evidence that the amount in 11 controversy exceeds $75,000. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 12 (9th Cir. 2003). 13 ‘summary-judgment-type evidence relevant to the amount in controversy at the time of 14 removal.’” Id. (citation omitted). But the defendant’s conclusory allegations as to the amount in 15 controversy will not suffice. Id. at 1090-91. The court “consider[s] facts presented in the removal petition as well as 16 Costco has not met its burden. The nature of plaintiffs’ alleged injuries do not 17 necessarily establish the requisite amount in controversy. See, e.g., In re: Incretin Mimetics Prod. 18 Liab. Litig., No. 13MD2452 AJB (MDD), 2015 WL 11658714, at *4 (S.D. Cal. Mar. 16, 2015) 19 (“[C]ourts have recognized that claims for wrongful death are sufficient to establish the requisite 20 amount in controversy on the face of the complaint.”); cf. Corbelle v. Sanyo Elec. Trading Co., 21 No. C-03-1509 EMC, 2003 WL 22682464, at *4 (N.D. Cal. Nov. 4, 2003) (finding plaintiff’s 22 personal injury action arising from electrocution did not clearly establish an amount in 23 controversy exceeding $75,000). 24 Although Costco contends that plaintiffs’ allegations in their complaint as well as 25 jury verdicts in other knee injury cases establish that the amount in controversy is met here, these 26 arguments are unavailing. First, Costco cannot carry its burden through mere speculation that 27 damages arising from Ms. Tolentino’s knee injury will necessarily exceed $75,000. See Removal 28 Not. ¶ 11; Opp’n at 4-6; see generally Compl. (alleging knee injury required surgery, continuing 3 1 medical expenses, lost wages and loss of consortium). Costco makes no attempt to quantify these 2 damages, and instead simply assumes that the amount in controversy is established because 3 plaintiffs’ alleged injuries “necessarily encompass [] radiology testing, orthopedic care and 4 physical therapy . . . as well as the costs of surgery and post-operative care . . . .”. See Opp’n at 4- 5 6. Costco’s speculation alone is insufficient. See Martinez v. Vons Cos., Inc., No. 2:16-CV- 6 02380-GMN-PAL, 2017 WL 3785215, at *2 (D. Nev. Aug. 30, 2017) (noting defendant’s 7 reliance on plaintiff’s alleged medical costs, permanent disability and request for general damages 8 was “too speculative” to establish the amount in controversy); see also Helland v. M705 Kroger 9 W./QFC, No. 2:14-CV-01687, 2015 WL 11715590, at *2 (W.D. Wash. Feb. 20, 2015) (finding 10 defendant’s “single speculative assertion” that plaintiff’s surgery and hospitalization would 11 exceed $75,000 “fails to prevail under a preponderance of the evidence standard”). Simply put, 12 Costco presents no facts or evidence from which the court can determine the amount in 13 controversy more likely than not exceeds $75,000. Cf. Cruz v. Wal-Mart Stores, Inc., No. 2:17- 14 cv-00545-JAD-NJK, 2017 WL 3394308, at *2 (D. Nev. Aug. 4, 2017) (finding plaintiff’s 15 medical-expenses table claiming past and future medical expenses exceeding $100,000 sufficient 16 proof to satisfy amount in controversy). 17 The court is similarly unpersuaded by Costco’s reliance on past jury verdicts 18 involving knee injuries. Costco makes no attempt to show those other cases are sufficiently 19 similar to the instant action to support the amount in controversy here. See Sharp v. DePuy 20 Orthopaedics, Inc., No. CV 12-5897 PA JCX, 2012 WL 2891182, at *5 (C.D. Cal. July 13, 2012) 21 (finding defendant did not explain factual similarity between cited jury verdicts and plaintiff’s 22 allegations); see also Conrad Assocs. v. Hartford Accident & Indem. Co., 994 F. Supp. 1196, 23 1201 (N.D. Cal. 1998) (noting “defendant has made no effort to compare the facts of [jury 24 verdict] cases [presented] with the alleged facts of this case.”). For example, Costco cites Kunik 25 v. Heeter, 39 Trials Dig. 9th 27, 2006 WL 2772793 (Cal. Super. Ct. June 6, 2006), in which the 26 plaintiff suffered neck, shoulder and knee injuries in a car accident and received a $435,000 27 verdict. See Opp’n at 6. Aside from the existence of a knee injury and loss of consortium claim 28 in both cases, it is unclear that plaintiffs here, who were not involved in a car accident, suffered 4 1 injuries comparable to those in Kunik and Costco presents no argument to that effect. Similarly, 2 in Halladjian v. Home Depot USA and Tricam Indus. Inc., 9 VerdictSearch Cal. Rep. 33, 2010 3 WL 3232795 (C.D. Cal. June 30, 2010), the plaintiff won a $380,000 verdict in his products 4 liability claim after falling from a ladder and tearing the meniscus in his knee. See Opp’n at 6-7. 5 Although Ms. Tolentino also alleges she suffered a knee injury, plaintiffs have not brought a 6 products liability action and Costco does not explain why the court should ignore that 7 inconsistency. Finally, although the jury awarded plaintiff over $116,000 in De Escobedo, which 8 also involved a slip and fall incident at a store, the plaintiff there alleged neck and back injuries in 9 addition to knee injuries and “[t]he jury was particularly affected by the defense’s attempt to 10 suppress evidence and the defense witnesses’ lack of credibility.” Rojas De Escobedo v. Food 4 11 Less of Cal., Inc., 31 Nat. Jury Verdict Rev. & Analysis 9, 2016 WL 6068429 (Cal. Super. Ct. 12 March 3, 2016). Costco has not shown such an outcome is likely here. 13 In short, Costco has not overcome the strong presumption against removal 14 jurisdiction and the court is left with “doubt as to the right of removal[.]” Gaus, 980 F.2d at 566. 15 Accordingly, plaintiffs’ motion is GRANTED and this case is REMANDED to Solano County 16 Superior Court. 17 18 IT IS SO ORDERED. DATED: February 6, 2018. 19 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 5

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