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.)

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