Lopez v. Whirlpool Corporation et al

Filing 51

ORDER Re 49 Parties' Stipulation for Entry of a Preliminary Injunction Enjoining the California Superior Court for the County of Alameda, Hon. Gail Bereola, from Proceeding any Further in this Case. Signed by Judge Edward M. Chen on 9/24/2012. (emcsec, COURT STAFF) (Filed on 9/24/2012)

1
2
3
4
5
6
7
8
9
10
11
12

CHINH T. VO (SBN 178694)
LAW FIRM OF CHINH T. VO
385 Grand Avenue, Suite 300
Oakland, California 94610
Tel.: [phone]
Fax: [phone]
Attorney for Plaintiff and Counter-Defendant Diana Lopez
MARC S. HINES (SBN 140065)
[e-mail]
MICHELLE L. CARDER (SBN 174481)
[e-mail]
BRIAN PELANDA (SBN 278453)
[e-mail]
HINES CARDER LLP
3090 Bristol Street, Suite 300
Costa Mesa, California 92626
Tel.: [phone]
Fax: [phone]
Attorneys for Defendant and Counter-Claimant AMCO Insurance Company

15

BRUCE NYE (SBN 77608)
GEORGES A. HADDAD (SBN 241785)
222 Kearny Street, Seventh Floor
San Francisco, California 94108-4521
Tel.: [phone]
Fax: [phone]

16

Attorneys for Defendant Whirlpool Corporation

13
14

17

THE UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19
20
21

DIANA LOPEZ,
Plaintiff,

22
23
24
25
26
27

CASE NO. 3:11-cv-05421-EMC

vs.
WHIRLPOOL CORPORATION;
AMCO INSURANCE COMPANY;
and DOES 1 to 100, INCLUSIVE,
Defendants.

[PROPOSED] ORDER GRANTING
THE PARTIES’ STIPULATION
FOR ENTRY OF A
PRELIMINARY INJUNCTION
ENJOINING THE CALIFORNIA
SUPERIOR COURT FOR THE
COUNTY OF ALAMEDA, HON.
GAIL BEREOLA, FROM
PROCEEDING ANY FURTHER IN
THIS CASE

28

1
[PROPOSED] ORDER GRANTING THE PARTIES’ STIPULATION FOR ENTRY OF A
PRELIMINARY INJUNCTION – CASE NUMBER C-11-05421-EMC

1

AMCO INSURANCE COMPANY,
Counter-Claimant

2
3

vs.

4

DIANA LOPEZ,
Counter-Defendant

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

This Matter came before the Court on the Parties’ Stipulation for Entry of a
Preliminary Injunction Enjoining the California Superior Court for the County of
Alameda, Hon. Gail Bereola, from Proceeding any Further in this Case.
After having granted AMCO Insurance Company’s (“AMCO”) Ex Parte
Application for a Temporary Restraining Order Enjoining the Superior Court on
August 31, 2012, and after having reviewed the Parties’ Stipulation for Entry of a
Preliminary Injunction, the Court finds and concludes as follows:
1.

This case was properly removed from the Superior Court of California

for the County of Alameda, Hon. Gail Bereola, to this Court on November 8, 2011.
Nonetheless, on July 13, 2012, the Superior Court allowed Plaintiff to file a First
Amended Complaint in the Superior Court to join 911 Remediation, Inc., ServPro
of NE San Jose, and AMCO as defendants to case number RG11600794, the same
action that has been properly removed to this Court. The Superior Court’s attempt
to continue exercising jurisdiction over this case contravenes 28 U.S.C. § 1446(d)
and Article III, Section 2, Clause 1 of the United States Constitution because this
Court has not remanded it back to the Superior Court.
2.

This will cause immediate, serious and irreparable harm to AMCO,

because if AMCO fails to file a responsive pleading or motion to Plaintiff’s
amended Complaint in the Superior Court, AMCO will risk having the Superior
Court enter a wrongful default judgment against it.
3.

Unless restrained by this Court, the Superior Court has indicated that

it will continue exercising jurisdiction over this case.
2
[PROPOSED] ORDER GRANTING THE PARTIES’ STIPULATION FOR ENTRY OF A
PRELIMINARY INJUNCTION – CASE NUMBER C-11-05421-EMC

1

4.

In view of the above, this Court concludes that good cause exists to

2

grant the Parties’ Stipulation for Entry of a Preliminary Injunction Enjoining the

3

California Superior Court for the County of Alameda, Hon. Gail Bereola, from

4

Proceeding any Further in this Case. This order is without prejudice to Ms.

5

Lopez’s ability to file a new action in Superior Court against 911 Remediation, Inc.

6

and ServPro of NE San Jose.

7
8

WHEREFORE, PURSUANT TO STIPULATION, IT IS ORDERED that the

9

California Superior Court for the County of Alameda, Hon. Gail Bereola, Plaintiff,

10

and their agents, officers, assigns, and all persons acting in concert with them are

11

hereby enjoined and restrained from proceeding any further with case number

12

RG11600794 in the Superior Court unless or until this case is remanded.

13
14
15

THIS ORDER shall be immediately served upon Plaintiff and the California

16

Superior Court for the County of Alameda, Hon. Gail Bereola.

17
18

Dated: September 24, 2012
S

R NIA

dwar
Judge E

ER

H

26

RT

25

d M. Ch

NO

24

United States District Judge
en

FO

23

D
RDERE
S SO O IED
IT I
Edward M. S MODIF
A Chen

LI

22

UNIT
ED

21

RT
U
O

20

ISTRIC
ES D
TC
T
TA

A

19

N

F
D IS T IC T O
R

C

27
28

3
[PROPOSED] ORDER GRANTING THE PARTIES’ STIPULATION FOR ENTRY OF A
PRELIMINARY INJUNCTION – CASE NUMBER C-11-05421-EMC