----oo0oo---- DUANE BERRYHILL, No. 2:23-cv-00315 WBS AC Plaintiff, v. ORDER RE: PLAINTIFF’S MOTION TO REMAND ALEXIS FONG, and DOES 1 to 20, inclusive, Defendants. ----oo0oo---- Plaintiff Duane Berryhill initiated this premises liability action against defendants Costco Wholesale Corporation and Alexis Fong (a Costco store manager) for injuries resulting from a slip-and-fall incident at a Costco store. (See Compl. (Docket No. 1-1).) Defendants removed the action to this court from the San Joaquin County Superior Court based on diversity. (Docket No. 1.) Plaintiff now moves to remand, arguing that removal is improper because complete diversity does not exist. (Mot. (Docket No. 5).) Defendant contends that defendant Fong was fraudulently joined to defeat diversity. (Opp’n (Docket No. 6).) I. Fraudulent Joinder “Under 28 U.S.C. § 1441, a defendant may remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action.” Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). There is a “strong presumption” against exercising removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citations omitted). Federal courts have original jurisdiction over cases where complete diversity exists between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). Complete diversity exists where each plaintiff is a citizen of a different state than each defendant. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “In determining whether there is complete diversity, district courts may disregard the citizenship of a non-diverse defendant who has been fraudulently joined.” Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018) (citing Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152 (1914)). “A defendant invoking federal court diversity jurisdiction on the basis of fraudulent joinder bears a ‘heavy burden’ since there is a ‘general presumption against finding fraudulent joinder.’” Grancare, 889 F.3d at 548 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009)). “There are two ways to establish fraudulent joinder: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Id. (internal quotation marks omitted). “Fraudulent joinder is established the second way if a defendant shows that an ‘individual joined in the action cannot be liable on any theory.’” Id. (quoting Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)) (alteration adopted). This requires “extraordinarily strong evidence or arguments that a plaintiff could not possibly prevail on her claims against the allegedly fraudulently joined defendant.” Id. “[T]he test for fraudulent joinder and for failure to state a claim under Rule 12(b)(6) are not equivalent. A claim against a defendant may fail under Rule 12(b)(6), but that defendant has not necessarily been fraudulently joined.” Id. at 549. Rather, the standard for fraudulent joinder is akin to the “wholly insubstantial and frivolous” standard for dismissing claims under Rule 12(b)(1) for lack of federal question jurisdiction. Id. “[I]f there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Id. (citing Hunter, 582 F.3d at 1046) (emphasis in original). Put another way, “[r]emand must be granted unless the defendant shows that the plaintiff ‘would not be afforded leave to amend his complaint to cure the purported deficiency.’” Nasrawi v. Buck Consultants, LLC, 776 F. Supp. 2d 1166, 1170 (E.D. Cal. 2011) (Wanger, J.) (quoting Burris v. AT & T Wireless, Inc., No. 06-02904 JSW, 2006 WL 2038040, at *2 (N.D. Cal. 2006)). In analyzing fraudulent joinder, a court may look beyond the pleadings and conduct a “summary inquiry . . . to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the in-state defendant.” Allen v. Boeing Co., 784 F.3d 625, 634 (9th Cir. 2015) (citing Hunter, 582 F.3d at 1044) (internal quotation marks omitted). There is no dispute that plaintiff and defendant Fong are both citizens of California and thus lack diversity. Defendant Costco is a citizen of Washington. (See Decl. of Nathaniel L. Dunn (Docket No. 2) ¶ 8.) Accordingly, removal is appropriate only if defendant Fong was fraudulently joined. Plaintiff alleges that defendant Fong is responsible for his injuries under a theory of premises liability. The elements of a premises liability claim are “a legal duty of care, breach of that duty, and proximate cause resulting in injury.” Kesner v. Super. Ct., 1 Cal. 5th 1132, 1158 (Cal. 2016). “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” Id. (internal quotation marks omitted). “[C]ontrol is defined as the power to prevent, remedy or guard against the dangerous condition.” Colonial Van & Storage, Inc. v. Super. Ct., 76 Cal. App. 5th 487, 497 (2d Dist. 2022) (internal quotations and citations omitted). The defendant must also have actual or constructive knowledge of the dangerous condition. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001). In arguing that defendant Fong was fraudulently joined, defendant makes various factual allegations pertaining to the slip-and-fall incident, including (1) “[t]here was no failure to develop appropriate safety procedures” at that Costco location; (2) defendant Fong’s “job responsibilities do not include picking up empty pallets [like the one plaintiff allegedly tripped on] or overseeing the employees who do”; (3) defendant Fong lacked actual notice of the allegedly dangerous condition and was not present on the premises at the time of plaintiff’s injury; and (4) plaintiff’s actions contributed to his injury. (See Opp’n at 6-8.) Defendant Fong provides a declaration in support of these allegations. (See Docket No. 6-5.) These arguments fail for multiple reasons. First, a self-serving declaration written by the defendant in question hardly qualifies as the “extraordinarily strong evidence” required to prove fraudulent joinder. See Grancare, 889 F.3d at 548. This declaration does not provide sufficient evidence to conduct a “summary inquiry” that resolves in defendant’s favor, which “itsel
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----oo0oo---- DUANE BERRYHILL, No. 2:23-cv-00315 WBS AC Plaintiff, v. ORDER RE: PLAINTIFF’S MOTION TO REMAND ALEXIS FONG, and DOES 1 to 20, inclusive, Defendants. ----oo0oo---- Plaintiff Duane Berryhill initiated this premises liability action against defendants Costco Wholesale Corporation and Alexis Fong (a Costco store manager) for injuries resulting from a slip-and-fall incident at a Costco store. (See Compl. (Docket No. 1-1).) Defendants removed the action to this court from the San Joaquin County Superior Court based on diversity. (Docket No. 1.) Plaintiff now moves to remand, arguing that removal is improper because complete diversity does not exist. (Mot. (Docket No. 5).) Defendant contends that defendant Fong was fraudulently joined to defeat diversity. (Opp’n (Docket No. 6).) I. Fraudulent Joinder “Under 28 U.S.C. § 1441, a defendant may remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action.” Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). There is a “strong presumption” against exercising removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citations omitted). Federal courts have original jurisdiction over cases where complete diversity exists between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). Complete diversity exists where each plaintiff is a citizen of a different state than each defendant. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “In determining whether there is complete diversity, district courts may disregard the citizenship of a non-diverse defendant who has been fraudulently joined.” Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018) (citing Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152 (1914)). “A defendant invoking federal court diversity jurisdiction on the basis of fraudulent joinder bears a ‘heavy burden’ since there is a ‘general presumption against finding fraudulent joinder.’” Grancare, 889 F.3d at 548 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009)). “There are two ways to establish fraudulent joinder: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Id. (internal quotation marks omitted). “Fraudulent joinder is established the second way if a defendant shows that an ‘individual joined in the action cannot be liable on any theory.’” Id. (quoting Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)) (alteration adopted). This requires “extraordinarily strong evidence or arguments that a plaintiff could not possibly prevail on her claims against the allegedly fraudulently joined defendant.” Id. “[T]he test for fraudulent joinder and for failure to state a claim under Rule 12(b)(6) are not equivalent. A claim against a defendant may fail under Rule 12(b)(6), but that defendant has not necessarily been fraudulently joined.” Id. at 549. Rather, the standard for fraudulent joinder is akin to the “wholly insubstantial and frivolous” standard for dismissing claims under Rule 12(b)(1) for lack of federal question jurisdiction. Id. “[I]f there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Id. (citing Hunter, 582 F.3d at 1046) (emphasis in original). Put another way, “[r]emand must be granted unless the defendant shows that the plaintiff ‘would not be afforded leave to amend his complaint to cure the purported deficiency.’” Nasrawi v. Buck Consultants, LLC, 776 F. Supp. 2d 1166, 1170 (E.D. Cal. 2011) (Wanger, J.) (quoting Burris v. AT & T Wireless, Inc., No. 06-02904 JSW, 2006 WL 2038040, at *2 (N.D. Cal. 2006)). In analyzing fraudulent joinder, a court may look beyond the pleadings and conduct a “summary inquiry . . . to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the in-state defendant.” Allen v. Boeing Co., 784 F.3d 625, 634 (9th Cir. 2015) (citing Hunter, 582 F.3d at 1044) (internal quotation marks omitted). There is no dispute that plaintiff and defendant Fong are both citizens of California and thus lack diversity. Defendant Costco is a citizen of Washington. (See Decl. of Nathaniel L. Dunn (Docket No. 2) ¶ 8.) Accordingly, removal is appropriate only if defendant Fong was fraudulently joined. Plaintiff alleges that defendant Fong is responsible for his injuries under a theory of premises liability. The elements of a premises liability claim are “a legal duty of care, breach of that duty, and proximate cause resulting in injury.” Kesner v. Super. Ct., 1 Cal. 5th 1132, 1158 (Cal. 2016). “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” Id. (internal quotation marks omitted). “[C]ontrol is defined as the power to prevent, remedy or guard against the dangerous condition.” Colonial Van & Storage, Inc. v. Super. Ct., 76 Cal. App. 5th 487, 497 (2d Dist. 2022) (internal quotations and citations omitted). The defendant must also have actual or constructive knowledge of the dangerous condition. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001). In arguing that defendant Fong was fraudulently joined, defendant makes various factual allegations pertaining to the slip-and-fall incident, including (1) “[t]here was no failure to develop appropriate safety procedures” at that Costco location; (2) defendant Fong’s “job responsibilities do not include picking up empty pallets [like the one plaintiff allegedly tripped on] or overseeing the employees who do”; (3) defendant Fong lacked actual notice of the allegedly dangerous condition and was not present on the premises at the time of plaintiff’s injury; and (4) plaintiff’s actions contributed to his injury. (See Opp’n at 6-8.) Defendant Fong provides a declaration in support of these allegations. (See Docket No. 6-5.) These arguments fail for multiple reasons. First, a self-serving declaration written by the defendant in question hardly qualifies as the “extraordinarily strong evidence” required to prove fraudulent joinder. See Grancare, 889 F.3d at 548. This declaration does not provide sufficient evidence to conduct a “summary inquiry” that resolves in defendant’s favor, which “itself points to an inability of the removing party to carry its burden.” See Allen, 784 F.3d at 634 (citing Hunter, 582 F.3d at 1044). Second, defendants’ arguments would require the court to engage in a “searching inquiry into the merits of the plaintiff’s case,” which is inappropriate when considering fraudulent joinder. See Grancare, 889 F.3d at 548–49. Defendant has not provided strong evidence or cited any authority suggesting that plaintiff could not possibly prevail against defendant Fong on a premises liability claim. To the contrary, “[c]ourts have specifically allowed a plaintiff to bring . . . premises liability claims against store managers in situations similar to the instant [a]ction.” See, e.g., Thomas v. WalMart Stores, Inc., No. 18-cv-03422 RSWL SK, 2018 WL 3046967, at *4 (C.D. Cal. June 19, 2018) (citing Trujillo v. Target Corp., No. 17-cv-06429 VAP GJS, 2017 WL 4864490, at *5 (C.D. Cal. Oct. 26, 2017); Revay v. Home Depot U.S.A., Inc., No. 2:14–cv–03391 RSWL AS, 2015 WL 1285287, at *3 (C.D. Cal. Mar. 19, 2015)) (rejecting fraudulent joinder argument and remanding slip- and-fall premises liability case brought against WalMart store manager). See also, e.g., Nieves v. Costco Wholesale Corp., No. 3:22-cv-00977 JD, 2022 WL 5199904, at *2 (N.D. Cal. Oct. 5, 2022) (rejecting fraudulent joinder argument and remanding slip-and- fall premises liability case brought against Costco store manager who was not present in the store on the day of the alleged injury); Dirkes v. Sam’s W., Inc., No. 2:22-cv-03466 JLS MAR, 2022 WL 17098672, at *5 (C.D. Cal. Sept. 7, 2022) (“As the analyses in similar cases recognize, it is plausible that [the defendant] may be liable for . . . premises liability as a store manager.”). Based on the argument and evidence presented by defendant, the court cannot conclude that there is no possibility that defendant Fong may be liable on a theory of premises liability. Accordingly, the court concludes that defendant Fong was not fraudulently joined, and therefore complete diversity is lacking. Defendant has thus failed to overcome “both the strong presumption against removal jurisdiction and the general presumption against fraudulent joinder.” See Hunter, 582 F.3d at 1046 (internal quotation marks omitted). II. Attorneys’ Fees Plaintiff requests that the court award him attorneys’ fees and costs incurred in filing this motion pursuant to 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Here, defendants failed to cite any relevant evidence or legal authority that supported removal. Further, there are numerous cases that have rejected nearly identical fraudulent joinder arguments involving store managers in slip-and-fall premises liability cases; at least one of those cases involved defendant Costco. See Nieves, 2022 WL 5199904, at *2. Accordingly, the court concludes that defendants lacked an objectively reasonable basis for seeking removal and will grant plaintiff’s request for attorneys’ fees. See Grancare, 889 F.3d at 552 (affirming district court’s grant of attorneys’ fees following remand where defendant’s fraudulent joinder argument lacked reasonable support in district court case law); Hung Duong v. ITT Educ. Servs., Inc., No. 1:14-cv-01257 AWI SA, 2014 WL 4634998, at *7 (E.D. Cal. Sept. 10, 2014) (awarding attorneys’ fees where Defendant argued fraudulent joinder but “identified no cases which counter Plaintiff’s cases, meaning the weight of authority was firmly against Defendants’ position”). Plaintiff requests $2,563 in attorneys’ fees and costs. eee ne OI mI EO EI EE I EE OE
This figure results from 9 attorney hours billed at a rate of $275, plus $88 in travel costs. Defendants do not dispute that the number of hours or rate requested are reasonable. Based on the court’s experience, the amount requested appears reasonable. See Oth Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (in determining what constitutes a reasonable attorneys’ fee, district courts may rely on “their own knowledge of customary rates and their experience concerning reasonable and proper fees”). See also, e.g., Siafarikas v. Mercedes-Benz USA, LLC, No. 2:20-cv-01784 JAM AC, 2022 WL 16926265, at *3 (E.D. Cal. Nov. 14, 2022) (approving hourly rates ranging from $250 to $500); Hung Duong, 2014 WL 4634998, at *8 (granting $2,605 in attorneys’ fees and costs associated with motion to remand following defendant’s removal based on fraudulent joinder, based on 8.4 hours of attorney work and $85 in costs). IT IS THEREFORE ORDERED that plaintiff’s motion to remand and for attorneys’ fees (Docket No. 5) be, and the same hereby is, GRANTED. This case is hereby REMANDED to the Superior Court of the State of California, in and for the County of San Joaquin. Plaintiff is awarded $2,563 in attorneys’ fees and costs. . * Dated: May 7, 2023 atte A hh be WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE