Mariano v. United Parcel Service, Inc. et al

Filing 13

ORDER Granting 8 Motion to Remand to State Court (Certified copy sent to State Court via US Mail Service.). Signed by Judge Gonzalo P. Curiel on 7/18/2013. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH MARIANO,
v.

Plaintiff,

UNITED PARCEL SERVICE, INC.;
CHUCK HANKS; NICK GERACHI;
DOES 1-50,
Defendants.

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Case No. 3:13-cv-0776-GPC-JMA
ORDER GRANTING MOTION
TO REMAND
(ECF NO. 8)

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INTRODUCTION

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Before the Court in this employment discrimination and harassment case is

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Plaintiff’s Motion to Remand (“Motion”). (ECF No. 8.) Defendant United Parcel

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Service, Inc. (“UPS”) has filed an opposition to Plaintiff’s Motion, (ECF No. 11), and

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Plaintiff has filed a reply, (ECF No. 12). The Court deems Plaintiff’s Motion suitable

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for disposition without oral argument. See CivLR 7.1.d.1. Having reviewed the

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parties’ submission and the relevant law, and for the reasons that follow, the Court will

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GRANT Plaintiff’s Motion because UPS has not satisfied its burden of demonstrating

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this Court has subject matter jurisdiction over this case.

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PROCEDURAL BACKGROUND
On June 17, 2013, Plaintiff, a citizen of California, filed suit in the San Diego
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Superior Court against defendants UPS, Chuck Hanks (“Hanks”), and Nick Gerache

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(erroneously sued as Nick Gerachi) (“Gerache”), asserting ten causes of action for (1)

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Violation of California Labor Code § 1102.5; (2) Wrongful Termination in Violation

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of Public Policy; (3) Constructive Discharge in Violation of Public Policy; (4)

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Retaliation in Violation of California Government Code § 12940(h); (5) Disparate

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Treatment in Violation of California Government Code § 12940(a); (6) Age

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Discrimination in Violation of California Government Code § 12940(a); (7) Hostile

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Work Environment Harassment in Violation of California Government Code §

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12940(j); (8) False Imprisonment; (9) Fraud; and (10) Unfair Competition in Violation

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of California Business and Professions Code § 17200 et seq.1

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UPS thereafter removed the action to this Court, asserting diversity jurisdiction.

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(ECF No. 1.) Hanks and Gerache joined in the removal. With regard to the fact that

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Plaintiff has asserted claims against Hanks and Gerache, both citizens of California,

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UPS asserts Hanks and Gerache are sham defendants and that the Court should

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therefore ignore their citizenship in determining whether the Court has diversity

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jurisdiction over this case. Plaintiff thereafter filed the instant Motion to Remand.

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(ECF No. 8.)
PLAINTIFF’S ALLEGATIONS

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Plaintiff alleges UPS hired him in 1989. (ECF No. 1-2, Compl. ¶ 6.) Plaintiff

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states that, over the course of his employment, he was promoted several times, received

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numerous salary increases, received excellent performance reviews, and did not receive

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a single write up for twenty-two years. (Id.) In addition to being a delivery driver,

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Plaintiff also served as “Safety Board Co-Chair,” which included training drivers and

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employees about proper safety protocols in the workplace, workplace hazards, and

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workers rights. (Id. ¶¶ 7, 8.)

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As a driver, Plaintiff’s assigned delivery route included the U.S. Department of

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Veteran’s Affairs Regional Adminstration Building (“VA Building”) in San Diego.

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San Diego Superior Court case number 37-2013-30625-CU-WT-CTL.
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(Id. ¶ 9.) In late 2009, the VA Building underwent remodeling through the area where

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Plaintiff delivered packages. (Id. ¶ 10.) As such, the VA Building required Plaintiff

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to deliver packages using a “handicap only” access ramp. (Id.) Plaintiff alleges

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“[d]elivery via this . . . ramp presented a particularly unsafe working condition that

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created a real and apparent hazard to [Plaintiff], the general public, and disabled

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individuals at the VA Building.” (Id. ¶ 11.) Plaintiff elaborates that he was required

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“to push a 300 pound, full handcart up a narrow handicap marked walk path about forty

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five yards uphill while making two ninety degree turns.” (Id.) Plaintiff continues,

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“Once embarking up the ramp, [Plaintiff] could not see individuals walking down, or

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proceeding down on wheelchairs. Also, wheelchairs could not pass [Plaintiff] due to

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the narrowness of the ramp.” (Id.) Thus, “if an individual in a wheelchair was going

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down the ramp, [Plaintiff] had to retreat backwards, blindly and downhill, through two

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ninety degree turns to allow the wheelchair to continue through.” (Id.) Plaintiff alleges

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“the ramp’s uphill incline made it difficult to stop when going up and down,” and that

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“[t]he ramp was particularly dangerous and slippery when wet, as it often was due to

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the sprinklers and shading overhead.” (Id.)

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Plaintiff alleges he “immediately reported the dangerous condition to HANKS

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[Plaintiff’s immediate supervisor] and requested that UPS agents take action to correct

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the hazard. (Id. ¶¶ 12, 18.) Plaintiff alleges he “emphasized the immediate need for

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an alternate delivery route due to the real and apparent danger to himself, the public,

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and the disabled individuals at the Veteran’s building who used the ramp.” (Id.)

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Plaintiff claims Hanks acknowledged Plaintiff’s complaint but took no action to correct

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or change the dangerous condition. (Id.)

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Plaintiff alleges that, “[a]fter HANKS continued to take no action regarding the

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dangerous condition, [Plaintiff] reported the dangerous condition to Business Manager

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FILCORN and again requested UPS agents take actions to correct the hazard.” (Id.

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¶ 13.) Plaintiff alleges Filcorn “suggested an alternate, but far more dangerous delivery

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route” that “required [Plaintiff] to park his truck half on the road, half on the curb, on
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a street where cars typically drive 60 mph.” (Id.)

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Plaintiff asserts that, “[a]fter FILCORN continued to take no action regarding

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the dangerous condition, [Plaintiff] went to Safety Manger ESQUIVEL,” who agreed

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the handicap ramp was dangerous and that action needed to be taken to correct the

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dangerous condition. (Id. ¶ 14.) Plaintiff claims Esquival further agreed Filcorn’s

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proposed alternative route was even more dangerous than the handicap ramp. (Id.)

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Plaintiff alleges Esquival, in turn, reported the condition to Division Manger Brown.

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(Id.) Plaintiff claims Brown responded by telling Plaintiff to “stop complaining” and

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to “just do [his] job.” (Id. ¶ 15.)

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Plaintiff further alleges that Hanks was “enraged” by Plaintiff’s choice to report

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the dangerous condition to upper management. (Id. ¶ 16.) Plaintiff claims Hanks

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therefore became hostile toward Plaintiff. (Id.)

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Plaintiff alleges he continued to complain to Hanks about the dangerous

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condition, but that Hanks echoed Brown’s advice to “stop complaining” and to “just

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do [his] job.” (Id. ¶ 17.) Plaintiff also alleges Hanks told him that any actions were

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“corporate decisions and not for [Hanks] to make.” (Id.) Plaintiff claims Hanks grew

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increasing annoyed with Plaintiff’s constant complaints about the unsafe delivery. (Id.)

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Plaintiff claims that, on or about March 8, 2011, it was pouring rain in San Diego

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and that, when he arrived at the VA Building, he concluded the delivery was far too

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dangerous to complete. (Id. ¶ 18.) Plaintiff states he called Hanks and that Hanks

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agreed the delivery was too dangerous. (Id.) Plaintiff claims Hanks sent a text

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message to Plaintiff, telling Plaintiff “not to deliver the packages and to enter code

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‘NI1’ into his DIAD (‘delivery info gathering device’), which meant ‘client was not

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in.’” (Id.) Plaintiff took a snapshot of Hank’s text message and, on Hank’s advice, did

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not deliver packages on March 8, 2011. (Id.) Plaintiff states he immediately told

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Filcorn he did not deliver the packages because it was too dangerous. (Id. ¶ 19.)

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Plaintiff alleges that, on or about March 9, 2011, loss prevention supervisor

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Gerache ushered Plaintiff into a small office, closed the door, and yelled at him,
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demanding an explanation for the undelivered packages. (Id. ¶ 20.) Plaintiff states he

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explained to Gerache that Hanks instructed Plaintiff to not deliver the packages and to

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enter the “NI1” code, and Plaintiff showed Gerache the text message from Hanks

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reflecting as much. (Id.) Plaintiff thus claims Gerache wrongly accused him of being

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dishonest and that Gerache concluded the interrogation by instructing Plaintiff to not

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discuss the meeting with anyone. (Id.)

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Plaintiff asserts that, on or about March 10, 2011, Hanks was suspended for over

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two weeks for instructing Plaintiff to not deliver the packages. (Id. ¶ 21.) Plaintiff

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claims that, immediately upon Hank’s return, Hanks “embarked upon a thirteen month

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stint of harassment, discrimination, retaliation and hostility toward [Plaintiff] because

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[Plaintiff] had, as HANKS complained to other employees ‘ratted him out.’” (Id. ¶ 22.)

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Plaintiff claims “[t]his treatment concluded in [Plaintiff’s] termination.” (Id.)

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More specifically, Plaintiff alleges Hanks “continually shunned [Plaintiff]

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around other employees, belittled [Plaintiff’s] job, reprimanded [Plaintiff] in front of

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[Plaintiff’s] co-workers and blatantly ignored [Plaintiff’s] requests for help.” Plaintiff

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asserts Hanks “also made these comments, and treated [Plaintiff] poorly because of

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[Plaintiff’s] age.” (Id.) Plaintiff states he turned 40 years old on March 4, 2010. (Id.

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¶ 6.)

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Plaintiff further claims, “every time [Plaintiff], pursuant to his job as Safety

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Board Co-Chair, reported unsafe conditions, or reported the dangerousness of the VA

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Building deliveries, HANKS would roll his eyes and make comments including, “is

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[Plaintiff] complaining again?”; “why can’t you just do your job?”; “who did you piss

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off on route today?”; and “why can’t you just do what we want you to do?” (Id. ¶ 24.)

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Plaintiff alleges Hanks “began to wrongly accuse [Plaintiff] of not delivering his

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Next Day Air on time and of going off route when not allowed.” (Id. ¶ 25.) Plaintiff

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further claims Hanks “prepared false disciplinary write ups to ‘paper’ [Plaintiff’s]

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personnel file.” (Id.)

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Plaintiff claims that, on May 11, 2012, around 2:50 p.m., while he was on route,
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he received a call from Hanks. (Id. ¶ 26.) Plaintiff states that Hanks then met Plaintiff

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and drove him to the El Cajon Center. (Id.) Plaintiff asserts that, upon his arrival,

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Hanks immediately ushered Plaintiff to a small security office where Gerache and a

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union steward, Butch Young, was waiting for him. (Id.) Plaintiff claims Gerache then

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“proceeded to wrongly accuse [Plaintiff] of theft, dishonesty, of having a side business

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on his route and for selling drugs.” (Id.) Plaintiff alleges he was “[s]hocked by these

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absurd and outrageous allegations,” and that he “explained that none of the allegations

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were in any way true.” (Id.) Plaintiff claims he “was detained in the small security

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office for multiple hours under the direction and power of UPS Supervisors.” (Id.)

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Plaintiff further claims that he “told them he had not eaten all day and was starving,”

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but that Gerache “refused to let him eat.” (Id.) Plaintiff claims he “was held in

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confinement in the small secluded security office, during work hours, against his will,

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under the direction and power of the Loss Prevention Supervisor GERACHI and

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YOUNG for almost four hours.” (Id. ¶ 27.)

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Plaintiff asserts that, “[a]s a direct result of the extended detention, and coercion

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including threats of arrest from GERACHI and HANKS, threats that they had pcitures

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to prove the allegations (although these pictures were never produced) [Plaintiff] was

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driven to a place of despair, did not feel free to leave for fear of losing his job, and felt

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confined in his movement.” (Id. ¶ 28.) Plaintiff claims Gerache “continued to state,

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‘UPS has a large file on you and maybe UPS could offer you a chance to resign,’” and

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that Young “continually asked, over and over again, ‘Are you OK with your wife

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picking you up from jail?’” (Id.) Plaintiff asserts the threats of arrest and loss of his

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job ultimately coerced him into a false confession. (Id. ¶ 29.)

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Plaintiff asserts the threats of arrest and loss of his job made him feel that he had

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no reasonable means of escaping detention. (Id. ¶ 30.) Plaintiff asserts that, “[a]fter

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2 hours of detention he was starving, unable to focus or make sense of what was

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happening, his blood sugar was low and he felt faint.” (Id. ¶ 32.) Plaintiff claims

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“[h]is mental and physical state was readily apparent to both GERACHI and YOUNG.”
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(Id.)

Plaintiff thus claims “UPS utilized physical and psychological tactics to

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intimidate, threaten, harass, and coerce [Plaintiff] into remaining at the mercy of the

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empowered UPS personnel and, ultimately submissively giving into a coerced

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confession which contained information that was not true but was information

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[Plaintiff] was compelled to write at the instruction of GERACHI and YOUNG.” (Id.

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¶ 33.)

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‘dishonesty.’” (Id.)

Plaintiff alleges Gerache and Young “forced [Plaintiff] to confess to

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Plaintiff further alleges Gerache and Young “made promises to [Plaintiff] as to

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one or more material matters, including the promise that he would keep his job if he

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confessed.” (Id. ¶ 34.) Plaintiff claims Gerache and Young knew, at the time, that their

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promises were false and that they did not intend on keeping them. (Id.) Plaintiff

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further claims Young told Plaintiff “he should resign and admit guilt because

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‘everything would be ok and you will receive due process in this matter from the union.

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Don’t worry.’”

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alternative would mean that his wife would have to pick him up from jail.” (Id.)

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Plaintiff further claims Gerache “communicated that UPS would be more lenient on an

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accused employee if he confessed, which leniency meant that the matter would be ‘kept

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in house’ and that the policy would not have to get involved.” (Id.)

(Id.)

Plaintiff claims that Young reminded Plaintiff “that the

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Plaintiff asserts he “was not aware of Defendants’ intention not to perform the

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promises, . . . [that he] acted in reliance upon those promises[, and that he] . . . was

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justified in relying on the promises.” (Id. ¶ 35.) Plaintiff claims Defendants “made

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such promises with intent to defraud [Plaintiff]; that is, they made the promise[s] for

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the purpose of inducing [Plaintiff] to rely upon them and to act, or refrain from acting,

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in reliance upon them.” (Id. ¶ 36.)

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Plaintiff claims “[s]aid retalation, discrimination, harassment, hostility,

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interrogation and false imprisonment ultimately concluded with the termination of

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[Plaintiff’s] employment on May 1, 2012.” (Id. ¶ 37.) Plaintiff states he “was 42 years

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old at the time of his termination.” (Id. ¶ 38.)
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3:13-cv-0776-GPC-JMA

DISCUSSION

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I.

Legal Standard

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“Only state court actions that originally could have been filed in federal court

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may be removed to federal court by the defendant.” Caterpillar, Inc. v. Williams, 482

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U.S. 386, 392 (1987); 28 U.S.C. § 1441(a). Removal is governed by 28 U.S.C. § 1441

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et seq. The removal statutes are to be “strictly construe[d] . . . against removal

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jurisdiction,” and the removing party “always has the burden of establishing that

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removal was proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “Federal

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jurisdiction must be rejected if there is any doubt as to the right of removal in the first

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instance.” Id.

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“[J]urisdiction founded on [diversity] requires that parties be in complete

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diversity and the amount in controversy exceed $75,000.” Matheson v. Progressive

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Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); 28 U.S.C. § 1332(a)(1).

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Complete diversity requires that the plaintiff’s citizenship is diverse from that of each

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named defendant. 28 U.S.C. §§ 1332(a)(1), 1332(c)(1); Caterpillar Inc. v. Lewis, 519

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U.S. 61, 68 n.3 (1996).

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A district court may disregard a non-diverse party named in the state court

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complaint and retain federal jurisdiction if the non-diverse party is joined as a sham

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defendant or if the joinder is fraudulent. McCabe v. Gen. Foods Corp., 811 F.2d 1336,

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1339 (9th Cir.1987). The term “fraudulent joinder” is a term of art that is used for

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removal purposes, and does not connote any intent to deceive on the part of plaintiff

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or his counsel. Lewis v. Time, Inc., 83 F.R.D. 455, 460 (E.D. Cal. 1929), aff’d, 710

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F.2d 549 (9th Cir. 1983). Joinder is deemed fraudulent if the plaintiff fails to state a

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cause of action against the non-diverse defendant, and that “failure is obvious

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according to the settled rules of the state.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313,

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1318 (9th Cir.1998) (quoting McCabe, 811 F.2d at 1339). This requires the court to

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determine whether there is any possibility that the plaintiff will be able to establish a

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cause of action against the non-diverse defendant in state court. Briano v. Conseco Life
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Ins. Co., 126 F. Supp. 2d 1293, 1296 (C.D. Cal. 2000); Hunter v. Phillip Morris, 582

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F.3d 1039, 1044-46 (9th Cir.2009).

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In making this determination, “[t]he court’s job is not to determine whether the

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plaintiff will actually or even probably prevail on [the] merits of his claim, but rather

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to evaluate whether there is any possibility plaintiff may do so.” Archuleta v. Am.

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Airlines, Inc., 2000 WL 656808, at *4 (C.D.Cal. May 12, 2000). Thus, a non-diverse

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defendant is only deemed a sham defendant if, after all disputed questions of fact and

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ambiguities of law are resolved in the plaintiff’s favor, the plaintiff could not possibly

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recover against the party whose joinder is questioned. See Kruso v. Int’l Tel. & Tel.

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Corp., 872 F.2d 1416, 1426 (9th Cir.1989); Bear Valley Family, L.P. v. Bank Midwest,

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N.A., 2010 WL 3369600, at *2 (C.D. Cal. Aug. 23, 2010) (stating that courts generally

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disfavor the doctrine of fraudulent joinder, and any ambiguity of law or fact must be

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resolved in favor of remand).

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The removing party bears the burden of proving a defendant has been

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fraudulently joined “by clear and convincing evidence.” Hamilton Materials, Inc. v.

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Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007); Good v. Prudential Ins. Co.

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of Am., 5 F. Supp. 2d 804, 807 (N.D. Cal. 1998) (“[T]he defendant must demonstrate

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that there is no possibility that the plaintiff will be able to establish a cause of action

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in state court against the alleged sham defendant.”); Burris v. AT & T Wireless, Inc.,

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2006 WL 2038040, at *2 (N.D.Cal.2006) (stating that remand must be granted unless

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the defendant shows that the plaintiff “would not be afforded leave to amend his

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complaint to cure [the] purported deficiency”).

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II.

Analysis

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Plaintiff asserts his Seventh Cause of Action [Hostile Work Environment (Cal.

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Gov. Code § 12940(j)] against UPS and Hanks; his Eighth Cause of Action (False

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Imprisonment) against UPS, Hanks, Gerache, and Young; and his Ninth Cause of

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Action (Fraud) against UPS, Hanks, Gerache, and Young.

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UPS asserts Hanks and Gerache are sham defendants because, under the
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“managerial immunity” doctrine, Hanks and Gerache cannot be held liable for false

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imprisonment or fraud. UPS asserts Plaintiff’s allegations in support of his false

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imprisonment and fraud claims “are merely a creative effort to avoid” the “managerial

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immunity” doctrine. UPS argues Plaintiffs false imprisonment and fraud claims are

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indistinguishable from his retaliation and wrongful termination claims. UPS asserts

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“Plaintiff’s claims arise out of interrogations that were conducted as part of [Hank’s

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and Gerache’s] duties to interrogate potential theft and employee misconduct,” and that

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Plaintiff is erroneously “attempt[ing] to analogize false imprisonment to harassment.”

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In short, UPS asserts Plaintiff may assert claims for false imprisonment and fraud only

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against UPS, not Plaintiff’s former supervisors, Hanks and Gerache.

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In support of its position, UPS relies primarily on three California cases. The

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first is Reno v. Baird, 18 Cal. 4th 640 (1998), in which the California Supreme Court

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held that an employee could not sue her individual supervisor for discrimination under

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California’s Fair Employment and Housing Act (“FEHA”) or for wrongful discharge

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in violation of public policy, as both causes of action may only be asserted against the

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employer. The second is Jones v. Lodge at Torrey Pines Partnership, 42 Cal. 4th 1158

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(2008), in which the California Supreme Court extended its holding in Reno to further

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preclude employees from asserting FEHA retaliation claims against individual

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supervisors. The third is Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55

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(1996), in which the California Court of Appeal held that an employee may not sue an

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individual supervisor for discrimination under FEHA where the supervisor’s conduct

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entails the making of personnel management decisions necessary to the supervisor’s

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job performance but that an employee could sue an individual supervisor for

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harassment under California Government Code § 12940(h).

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UPS further argues Plaintiff’s fraud claim is barred by workers compensation

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preemption because Hank’s and Gerache’s allegedly fraudulent statements “were made

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during an interrogation for employee theft, which is considered a normal part of the

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employment relationship.”
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UPS lastly argues Plaintiff’s attempt to assert a claim for harassment against

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Hanks fails as a matter of law because Plaintiff was not disabled or associated with the

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disabled. UPS asserts that, in fact, “Plaintiff does not allege he was a member of any

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protected class.” UPS further asserts that Plaintiff’s allegation that he was advocating

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on behalf of disabled veterans at the VA Building does not suffice to state a claim for

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associational discrimination under FEHA.

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Plaintiff argues that, while Hanks and Gerache may not be held personally liable

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for discrimination and retaliation, they may be held personally liable for the torts of

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false imprisonment and fraud. Plaintiff asserts there is no such thing as a “managerial

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immunity” doctrine that would bar Plaintiff’s claims as a matter of law but that, instead,

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a “managerial privilege” may be asserted as an affirmative defense in some instances.

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Plaintiff asserts the privilege cannot be used to establish that Hanks and Gerache are

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sham defendants for four reasons: (1) the scope and availability of the privilege is

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unsettled under state law; (2) the cases relied on by UPS are based on the statutory

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language of FEHA and not the common law torts that Plaintiff alleges; (3) the Court

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should not consider affirmative defenses in determining whether joinder was

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fraudulent; and (4) on the merits, Hank’s and Gerache’s alleged conduct was not within

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the scope of their supervisory duties.

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In support of his argument that the managerial privilege is unsettled under

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California law, Plaintiff relies on three cases. The first is Huynh v. Vu, 111 Cal. App.

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4th 1183, 1194 (2003), in which the California Court of Appeal recognized “[t]he

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scope of the manager’s privilege . . . is neither clear nor consistent.” The second is

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Graw v. Los Angeles County Metropolitan Transportation Authority, 52 F. Supp. 2d

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1152, 1155 (C.D. Cal. 1999), in which the district court recognized “there is no

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consensus of California decisions” on the issue of whether the privilege applies where

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the manager does not act for the benefit of the company. The third is Hernandez v.

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Ignite Restaurant Group, Inc., 2013 WL 129286, at *4 (E.D. Cal. Jan. 9, 2013),

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recognizing “it is not clear whether the manager’s privilege applies outside the scope
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of claims for intentional interference with contract.”

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Here, the Court first notes that it agrees with Plaintiff’s observation that no

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California court has recognized a “managerial immunity” doctrine. The Court further

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agrees California law is unsettled with regard to whether the managerial privilege

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would bar Plaintiff’s tort claims against Hanks and Gerache. The Court disagrees with

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UPS that Reno, Jones, and Janken bar Plaintiff’s tort claims as a matter of law. These

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cases interpreted and applied the statutory language of FEHA and did not directly

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address whether an individual supervisor was protected from suit based on the

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managerial privilege. At most, those cases stand for the proposition that Plaintiff may

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not sue Hanks and Gerache individually for wrongful termination or retaliation. And,

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indeed, Plaintiff has not asserted his claims for wrongful termination and retaliation

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against Hanks or Gerache. He has asserted claims for false imprisonment and fraud

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against Hanks and Gerach, and UPS does not attempt to argue that, without the

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managerial privilege, these claims fail as a matter of law. Further, Janken also stands

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for the proposition that Hanks and Gerache may be personally liable for harassment.

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While UPS attacks the sufficiency of Plaintiff’s associational harassment claim, UPS

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has not demonstrated Plaintiff’s claim cannot be cured by amendment. Because the

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Court finds that California law is unsettled with regard to the scope and application of

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the managerial privilege, the Court need not address the parties’ remaining arguments.

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Resolving all disputed questions of fact and ambiguities of law in Plaintiff’s

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favor, the Court concludes UPS has not shown, by clear and convincing evidence, that

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there is no possibility that Hanks and Gerache may be held liable for their allegedly

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tortious conduct.

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defendants. Thus, the complete diversity does not exist for purposes of establishing

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diversity jurisdiction, and the Court therefore lacks subject matter jurisdiction.

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Accordingly, the Court must grant Plaintiff’s Motion to Remand.

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As such, the Court cannot find Hanks and Gerache are sham

CONCLUSION
After a careful consideration of the parties’ submissions and the applicable law,
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and for the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to

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Remand is GRANTED. The Clerk of Court is therefore directed to REMAND this

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case to the San Diego Superior Court. The hearing on Plaintiff’s Motion to Remand,

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currently set for July 26, 2013, is VACATED.

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DATED: July 18, 2013

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HON. GONZALO P. CURIEL
United States District Judge

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