Vos v. USAA General Indemnity Company

Filing 15

ORDER signed by District Judge John A. Mendez on 10/8/19 GRANTING 7 plaintiff's Motion to Remand. Case is REMANDED back to the Sacramento County Superior Court. Certified copy of remand order sent. CASE CLOSED. (Kastilahn, A) Modified on 10/9/2019 (Vine, H).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SELWYN VOS,

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No.

2:19-cv-01186-JAM-EFB

Plaintiff,

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v.

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USAA GENERAL INDEMNITY
COMPANY, and DOES 1 through
100, inclusive,

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ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

Defendants.

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On December 28, 2018, Selwyn Vos filed a suit against USAA

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General Indemnity Company (“USAA GIC”) in Sacramento County

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Superior Court alleging breach of contract, breach of the

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covenant of good faith and fair dealing, and elder financial

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abuse.

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federal court.

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Defendant’s removal was untimely, Plaintiff now moves to remand

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the case to state court.

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Plaintiff’s motion.

Defendant removed the case to

Notice of Removal, ECF No. 1.

Mot., ECF No. 8.

Arguing

Defendant opposes

Opp’n, ECF No. 11.

For the reasons set forth below, the Court GRANTS

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Compl., ECF No. 1–1.

Plaintiff’s motion to remand.1

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for September 10, 2019
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

On June 15, 2016, Plaintiff renewed his USAA automobile

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insurance policy.

First Amended Complaint (“FAC”), ECF No. 1–2

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¶ 7.

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policy included $2,000 in extended benefits wage earner

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disability coverage per 30-day period.

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provided essential services disability coverage of $45.00 per

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week.

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¶ 9.

The policy ran through December 15, 2016.

FAC ¶ 8.

FAC ¶ 8.

FAC ¶ 7.

It also

On July 2, a motorist rear-ended Plaintiff.

At the time, Plaintiff operated a 40-acre vineyard.

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¶ 10.

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that now prevent him from operating his vineyard.

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The

FAC

FAC

Plaintiff suffered injuries as a result of the accident
FAC ¶ 11.

Following the accident, Plaintiff filed a claim for benefits

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with USAA, but Defendant denied his claim, in part.

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Plaintiff now alleges that Defendant knowingly deprived him of

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benefits his policy afforded.

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refused to pay any wage earner disability payments and only

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partially paid essential services disability payments.

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Plaintiff further alleges that Defendant’s failure to timely pay

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his benefits prevented him from staying current on his mortgage

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payments for his vineyard.

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foreclosed upon the property and sold it for less than its fair

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market value.

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FAC ¶ 26.

FAC ¶ 27.

FAC ¶ 12–25.

Specifically, Defendant

FAC ¶ 26.

As a result, the bank

FAC ¶ 27.

Plaintiff filed suit in December 2018.

Complaint, ECF No.

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1–1.

On June 24, 2019, Plaintiff served a California Code of

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Civil Procedure § 998 Offer to Compromise on USAA GIC seeking

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USAA GIC’s agreement to take a judgment against it in exchange

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for $250,000.

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Defendant removed the case to federal court, invoking the Court’s

Offer to Compromise, ECF No. 1–4.

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Two days later,

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diversity jurisdiction.

Notice of Removal, ECF No. 1.

Defendant

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maintains the Offer to Compromise first put them on notice of the

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amount in controversy.

Notice of Removal ¶¶ 22-26.

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II.

OPINION

Generally, when the United States courts have original

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jurisdiction over a civil action filed in state court, a

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defendant may remove the suit to the federal court in “the

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district and division embracing the place where [the suit] is

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pending.”

28 U.S.C. § 1441(a).

Removal of a state action “may

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be based on either diversity jurisdiction or federal question

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jurisdiction.”

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DAD-JLT, 2016 WL 4925826, at *1 (E.D. Cal. Sept 16, 2016) (citing

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City of Chicago v. Int’l Coll. Of Surgeons, 522 U.S. 156, 163

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(1997)).

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preponderance of the evidence, the basis of the federal court’s

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jurisdiction.

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Cir. 2002).

Godoy v. Family Dollar, Inc., No. 1:16-cv-00969-

Defendants bear the burden of proving, by a

Cohn v. Petsmart, Inc., 281 F.3d 837, 839 (9th

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Here, Plaintiff argues the Court should remand this suit to

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Sacramento County Superior Court because Defendant’s removal was

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untimely.

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windows for removing a case from state court.

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4925826, at *2.

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clear on the face of the complaint, defendants must file a notice

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of removal within thirty days of receiving the initial pleading.

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28 U.S.C. § 1446(b)(1).

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grounds for federal jurisdiction, defendants must file their

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notice of removal within thirty days of receiving “a copy of an

Mot. at 6.

Section 1446(b) creates two thirty-day
Godoy, 2016 WL

When the presence of federal jurisdiction is

When the complaint does not set forth

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amended pleading, motion, order or other paper from which it may

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first be ascertained that the case . . . is or has become

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removable.”

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28 U.S.C. § 1446(b)(3).

Plaintiff does not dispute that Section 1446(b) creates two

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distinct removal periods, nor does he contend his complaint put

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Defendant on notice of the amount in controversy.

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argues that his April 15, 2019 discovery responses made clear he

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was seeking more than $75,000, and thus, triggered Section 1446’s

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second removal window.

Mot. at 4.

Rather, he

When assessing removability,

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“defendants need not make extrapolations or engage in guesswork;

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yet the statute requires a defendant to apply a reasonable amount

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of intelligence” in conducting their analysis.

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Financial Services NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013)

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(internal quotations and citation omitted).

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that the following was sufficient to put Defendant on notice:

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1.

Kuxhausen v. BMW

Plaintiff maintains

Plaintiff’s response to Defendant’s Special

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Interrogatory No. 22, stating that, in regard to wage earner

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disability benefits owed to him, the amount owed was “[u]nknown

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at this time but at least $24,000.00,” see Exh. D to Mot.;

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2.

Plaintiff’s attorney fee agreement establishing that he

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had entered into an agreement of 38.33 percent of the amount

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recovered at or before mediation or court-ordered settlement

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conference and 45 percent thereafter, see Exh. E to Mot.;

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3.

Plaintiff’s September 20, 2018 letter to Defendant

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stating that Plaintiff sought $242,179.00 for damages caused by

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Defendant’s unreasonable failure to pay benefits due under the

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wage earner disability coverage and millions of dollars for

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financial elder abuse, see Exh. F to Mot.; and
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A bill for $42,676.80 in caretaking services issued to

Plaintiff and not paid by Defendant, see Exh. G to Mot.
This Court finds Plaintiff’s September 20, 2018 letter

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sufficiently put Defendant on notice that the amount in

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controversy exceeded $75,000.

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the amount allegedly owed to Plaintiff under his policy was not

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paid by a specified date, Plaintiff would file suit for “the

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billed amount $242,179.00.”

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or guesswork was necessary for Defendant to discern the potential

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This letter plainly states that if

See Exh. F to Mot.

No extrapolation

amount in controversy.
Further, the fact that the letter was first sent to

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Defendant before litigation commenced is of no consequence.

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document “received prior to the receipt of the initial pleading

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cannot trigger the second thirty-day removal period” under

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Section 1446(b).

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876, 886 (9th Cir. 2010). But Plaintiff sent the letter to

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Defendant again after the suit began.

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a demand letter received only prior to receipt of the initial

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pleading could not trigger the second thirty-day removal period).

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A

Carvalho v. Equifax Info. Servs., LLC, 629 F.3d

Cf. id. at 885–86 (holding

Thus, the Court finds the letter, dated September 28, 2018,

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and disclosed in discovery, was by itself sufficient to put

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Defendant on notice of the case’s removability.

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not analyze Plaintiff’s other bases for putting Defendant on

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notice of the amount in controversy or address Plaintiff’s

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argument that “substantial offensive or defensive action” in

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state court prior to removal warrants remanding the case.

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that Defendant received the letter on April 15, 2019, they had

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until May 15, 2019 to remove the case to federal court.
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The Court need

Given

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U.S.C. § 1446(b)(3).

Defendant failed to meet this deadline.

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The Court, therefore, finds Defendant’s removal was not timely.

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III. ORDER
For the reasons set forth above, the Court GRANTS

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Plaintiff’s motion to remand this case back to the Sacramento

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County Superior Court.

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IT IS SO ORDERED.

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Dated: October 8, 2019

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