Porfirio Perez v. Old Dominion Freight Line, Inc.; Gregory Jukic; and Does 1 through 50, inclusive

• Court: District Court, C.D. California
• Decided: April 28, 2026
• Docket: 5:25-cv-02702
• Status: Unknown

Opinion

1 2 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PORFIRIO PEREZ, an individual, Case No. 5:25-cv-02702-SPG-JDE 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 v. MOTION TO REMAND [ECF NO. 13] 13

14 OLD DOMINION FREIGHT LINE, INC., a North Carolina corporation; GREGORY 15 JUKIC, an individual and California 16 resident; and DOES 1 through 50, 17 inclusive, Defendants. 18 19 20 Before the Court is the Motion to Remand, (ECF No. 13 (“Motion”)), filed by 21 Plaintiff Porfirio Perez (“Plaintiff”). The Court has read and considered the Motion and 22 concluded that it is suitable for decision without oral argument. See Fed. R. Civ. P. 78(b); 23 C.D. Cal. L.R. 7-15. Having considered the parties’ submissions, the relevant law, and the 24 record in this case, the Court GRANTS the Motion. 25 I. BACKGROUND 26 The following allegations are taken from Plaintiff’s Complaint. (ECF No. 1-1 27 (“Complaint”)). Plaintiff was employed by Defendant Old Dominion Freight Line, Inc. 28 (“Old Dominion”) beginning in 2001, first as a dockworker and later as a line haul driver. 1 (Id. ¶¶ 14-16). Plaintiff alleges that, during his employment, he engaged in protected 2 whistleblower activities by refusing orders to operate vehicles that did not comply with 3 federal Department of Transportation (“DOT”) safety regulations and by raising concerns 4 with management about safety practices. (Id. ¶¶ 20-24). Plaintiff also alleges that, in 5 September 2022, he suffered a work-related shoulder injury that required medical 6 treatment. (Id. ¶ 25). Rather than providing workers’ compensation or offering reasonable 7 accommodations, Old Dominion directed Plaintiff to see his own doctor and asked when 8 he would be back to work. (Id. ¶¶ 26-27). 9 In October 2022, Plaintiff attended a bi-yearly company interview with Regional 10 Human Resources and Development Manager, Gregory Jukic (“Jukic,” or, together with 11 Old Dominion, “Defendants”). (Id. ¶ 28). During this meeting, Plaintiff reiterated his 12 safety concerns and complained to Jukic that Old Dominion treated driver complaints as 13 the problem rather than addressing the safety issues. (Id. ¶ 29). Jukic responded by asking 14 Plaintiff, who was 48 years old, when he planned to retire, pointing out that Plaintiff had 15 worked for the company for close to 22 years and must be “close to retirement.” (Id. ¶ 30). 16 When Plaintiff responded that he would not be retiring any time soon, Jukic stated: “When 17 25 years hits for me I’m going to retire. Maybe you should think about that.” (Id. ¶ 31). 18 In November 2022, Old Dominion conducted an investigation into Plaintiff’s 19 electronic log device records and accused Plaintiff of falsifying his records by continuing 20 to work off the clock instead of taking his meal breaks. (Id. ¶ 33). Plaintiff admitted that 21 he had driven through lunch breaks but stated that he only did so in order to finish his route 22 faster, based on the unrealistic time frames required by the company. (Id. ¶ 34). On 23 November 28, 2022, Old Dominion informed Plaintiff that his employment would be 24 terminated the following day for working off the clock. (Id. ¶ 35). Plaintiff alleges that 25 other employees who committed the same violations received only write-ups, (id. ¶ 36), 26 and he claims that his age and injury were motivating factors in the decision to terminate 27 him, (id. ¶¶ 62, 107). 28 1 Plaintiff initiated this case on August 19, 2025, in San Bernardino County Superior 2 Court, naming Jukic and Old Dominion as Defendants. Plaintiff alleges that Old Dominion 3 is a North Carolina corporation, while Jukic is a resident of California. (Id. ¶¶ 6-7). 4 Against Old Dominion, Plaintiff raises claims of age discrimination, harassment, disability 5 discrimination, failure to accommodate, failure to engage in the interactive process, 6 retaliation, failure to prevent discrimination, whistleblower retaliation, wrongful 7 termination, various wage-and-hour violations, and violations of the Unfair Competition 8 Law (“UCL”). (Id. at 8-26). As to Jukic, Plaintiff raises claims of harassment, wage-and- 9 hour violations, and violations of the UCL. (Id. at 9-11. 21-26). 10 Defendants removed the case to this Court on October 14, 2025. (ECF No. 1). On 11 December 15, 2025, Plaintiff filed the instant Motion, seeking a remand to San Bernardino 12 County Superior Court based on lack of diversity jurisdiction. (Mot.). On January 21, 13 2026, Defendants filed their opposition to the Motion, in which they argue that Jukic has 14 been fraudulently joined as a defendant and that diversity jurisdiction is otherwise present. 15 (ECF No. 16 (“Opposition”)). Plaintiff replied in support of the Motion on January 28, 16 2026. (ECF No. 17 (“Reply”)). 17 Defendants’ Opposition is accompanied by declarations from Defense Counsel 18 Sylvia J. Kim, (ECF No. 16-1 (“Kim Declaration”)), Jukic, (ECF No. 16-2 (“Jukic 19 Declaration”)), and Old Dominion Line Haul Manager Jesse Lopez, (ECF No. 16-3 20 (“Lopez Declaration”)). In her declaration, Defense Counsel details an exchange between 21 the parties in which Defense Counsel asked Plaintiff’s Counsel whether she intended to 22 add any further allegations as to Jukic and stated that they would understand Plaintiff’s 23 Counsel’s failure to respond to mean that Plaintiff has no additional allegations. (Kim 24 Decl. ¶¶ 5-6). Defense Counsel states that she has not received any response to date. (Id.). 25 In his declaration, Jukic attests that he was not Plaintiff’s supervisor, was not involved in 26 discussions regarding Plaintiff’s accommodation request, and was not aware that Plaintiff 27 sustained any injuries in his employment with Old Dominion. (Jukic Decl. ¶ 6). Finally, 28 in his declaration, Lopez attests that, after receiving an anonymous tip, he conducted a 1 random audit of several Old Dominion drivers’ logs, including Plaintiff’s. (Lopez Decl. 2 ¶ 4). Lopez states that three drivers admitted to driving while logged off for meal breaks 3 and all three were terminated, including one driver under the age of 40. (Id.). 4 II. LEGAL STANDARD 5 Federal courts are courts of limited jurisdiction, with subject-matter jurisdiction only 6 over matters authorized by the Constitution and statute. Kokkonen v. Guardian Life Ins. 7 Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court may be removed to federal 8 court if the federal court would have had original jurisdiction over the suit. 28 U.S.C. 9 § 1441(a). Federal courts have original jurisdiction where an action presents a federal 10 question under 28 U.S.C. § 1331 or there is diversity jurisdiction under 28 U.S.C. § 1332. 11 Courts have diversity jurisdiction over cases where there is complete diversity of parties 12 and the amount “in controversy exceeds the sum or value of $75,000, exclusive of interest 13 and costs.” 28 U.S.C. § 1332(a). 14 The removal statute is strictly construed against removal jurisdiction. See Shamrock 15 Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941). There is a “strong presumption” 16 against removal, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the 17 right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 18 1992). “The presumption against removal means that ‘the defendant always has the burden 19 of establishing that removal is proper.’” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 20 1241, 1244 (9th Cir. 2009) (quoting Gaus, 980 F.2d at 566). Courts resolve any doubt 21 about the right of removal in favor of remand. Grancare, LLC v. Thrower by & through 22 Mills, 889 F.3d 543, 550 (9th Cir. 2018). 23 III. DISCUSSION 24 The parties agree to the basic jurisdictional facts of this case, including that the 25 amount in controversy exceeds $75,000, that Plaintiff and Old Dominion are of diverse 26 citizenship, and that Jukic is a citizen of California whose presence in this action would 27 defeat diversity jurisdiction. The sole disputed issue in this Motion is whether Jukic was 28 properly named as a defendant or has been fraudulently joined. 1 Under the doctrine of fraudulent joinder, “courts may disregard the citizenship of a 2 non-diverse defendant who has been fraudulently joined.” Grancare, LLC, 889 F.3d at 3 548. A defendant may establish fraudulent joinder by showing either “(1) actual fraud in 4 the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of 5 action against the non-diverse party in state court.” Hunter v. Philip Morris USA, 582 F.3d 6 1039, 1044 (9th Cir. 2009) (citation omitted). Under the latter approach, a removing 7 defendant must show not only that the plaintiff has failed to state a claim but also that the 8 “failure is obvious according to the settled rules of the state.” Hamilton Materials, Inc. v. 9 Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007) (citation omitted). As part of this 10 inquiry, courts must consider “whether a deficiency in the complaint can possibly be cured 11 by granting the plaintiff leave to amend.” Grancare, LLC, 889 F.3d at 550. “If there is a 12 possibility that a state court would find that the complaint states a cause of action against 13 any of the resident defendants, the federal court must find that the joinder was proper and 14 remand the case to the state court.” Hunter, 582 F.3d at 1046 (citation omitted). 15 The parties first dispute whether and to what extent the Court may consider 16 Defendants’ affidavits. Plaintiff argues that the fraudulent joinder analysis “is generally 17 limited to the allegations in the complaint” and that the Court should therefore disregard 18 the declarations entirely. (Reply at 8). However, fraudulent joinder is an exception to the 19 general rule that courts must determine the existence of federal jurisdiction “solely by an 20 examination of the plaintiff’s case.” Self v. Gen. Motors Corp., 588 F.2d 655, 657 (9th Cir. 21 1978). As the Ninth Circuit has explained, “[w]here fraudulent joinder is an issue . . . [t]he 22 defendant seeking removal to the federal court is entitled to present the facts showing the 23 joinder to be fraudulent.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998) 24 (internal quotation marks and citation omitted). In evaluating such an argument, courts 25 may consider “summary judgment-type evidence such as affidavits and deposition 26 testimony.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (citation 27 omitted). Thus, the Court may consider the evidence put forth in Defendants’ declarations. 28 However, in evaluating a fraudulent joinder claim, courts must still “resolve all issues of 1 fact and all ambiguities in the law in favor of the non-removing party.” Sanchez v. Lane 2 Bryant, Inc., 123 F. Supp. 3d 1238, 1241-42 (C.D. Cal. 2015); see also Dodson v. Spiliada 3 Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992) (“In evaluating fraudulent joinder claims, 4 we must initially resolve all disputed questions of fact and all ambiguities in the controlling 5 state law in favor of the non-removing party.”). Thus, the Court will not consider portions 6 of the declarations that serve only to contest factual allegations in Plaintiff’s Complaint. 7 As to Jukic, the sole claim at issue is a claim for harassment under California’s Fair 8 Employment and Housing Act (“FEHA”).1 Under the FEHA, it is unlawful “[f]or an 9 employer . . . or any other person, because of . . . physical disability . . . [or] age . . . to 10 harass an employee.” Cal Gov’t Code § 12940(j)(1). An individual “employee of an entity 11 subject to this subdivision is personally liable for any harassment prohibited by this section 12 that is perpetrated by the employee.” Id. § 12940(j)(3). To make out a harassment claim, 13 “an employee must show she was subjected to harassing conduct that was (1) unwelcome; 14 (2) because of [a protected characteristic]; and (3) sufficiently severe or pervasive to alter 15 the conditions of her employment and create an abusive work environment.” Bailey v. S.F. 16 Dist. Attorney's Off., 16 Cal. 5th 611, 627 (2024). “A single incident of harassing conduct 17 is sufficient to create a triable issue regarding the existence of a hostile work environment 18 if the harassing conduct has unreasonably interfered with the plaintiff’s work performance 19 or created an intimidating, hostile, or offensive working environment.” Cal. Gov’t Code 20 § 12923(b); see also Bailey, 16 Cal. 5th at 629 (“[A]lthough viable hostile work 21 environment claims often involve repeated conduct, it is not required.”). 22 With this background in mind, the Court now turns to Defendants’ arguments in 23 favor of fraudulent joinder. First, Defendants argue that Jukic’s alleged comments about 24 Plaintiff’s retirement cannot qualify as harassment under the regulatory definition. (Opp. 25 1 Plaintiff also names Jukic as a defendant in his wage-and-hour and UCL claims. 26 However, in his Motion, Plaintiff states that, following meet-and-confer efforts with 27 Defendants, he “has agreed to drop all causes of action against Mr. Jukic except one— 28 Plaintiff’s cause of action for harassment.” (Mot. at 6). Accordingly, the Court will focus only on the harassment claim. 1 at 13). Defendants also argue that, because Jukic himself is over 40 years old, there can be 2 no inference of age-based animus. (Id. at 14). 3 The Court disagrees. California regulations state that “[h]arassment includes but is 4 not limited to” an enumerated list of actions, including “[v]erbal harassment, e.g., epithets, 5 derogatory comments or slurs on a basis enumerated in the Act.” Cal. Code Regs. Tit. 2 6 § 11019(b)(1) (emphasis added). While Jukic is not alleged to have said any slurs or 7 epithets to Plaintiff, the Court cannot say as a matter of law that Jukic’s comments 8 recommending Plaintiff’s retirement were not “derogatory.” Moreover, the regulatory 9 definition is non-exhaustive; that Jukic’s comments do not neatly fit into one of the 10 enumerated categories would not be fatal to Plaintiff’s claim. Indeed, supplementing the 11 regulatory definition, the California Supreme Court has defined harassment as “bias that is 12 expressed or communicated through interpersonal relations in the workplace.” Roby v. 13 McKesson Corp., 47 Cal. 4th 686, 707 (2009). Taking the allegations in the light most 14 favorable to Plaintiff, Jukic’s comments could be understood as age-related bias 15 communicated through interpersonal relations. While Jukic’s own age may undermine the 16 strength of any such inference, it is not a per se bar. See Castaneda v. Partida, 430 U.S. 17 482, 499 (1977) (“Because of the many facets of human motivation, it would be unwise to 18 presume as a matter of law that human beings of one definable group will not discriminate 19 against other members of their group.”). 20 Second, Defendants argue that California law distinguishes between harassment and 21 discrimination, allowing only claims of harassment against individual supervisors. (Opp. 22 at 13). Defendants contend that Jukic’s alleged role in the investigation into Plaintiff’s 23 falsification of his driving logs constitutes “properly delegated personnel management 24 authority,” which may only support a discrimination claim, not a harassment claim. (Id.). 25 The Court agrees that these allegations, by themselves, would not constitute 26 harassment. Under California law, discrimination claims relate to “the performance of 27 necessary personnel management duties,” while harassment claims are limited to “conduct 28 outside the scope of necessary job performance.” Janken v. GM Hughes Elecs., 46 Cal. 1 App. 4th 55, 63 (1996). Thus, “commonly necessary personnel management actions such 2 as hiring and firing . . . do not come within the meaning of harassment.” Id. at 64-65. 3 Taken on its own, then, the allegation that Jukic participated in the investigation and 4 termination of Plaintiff could not form the basis for a harassment claim because firing an 5 employee is a commonly necessary personnel management action. 6 However, the California Supreme Court has clarified that “some official 7 employment actions done in furtherance of a supervisor’s managerial role can also have a 8 secondary effect of communicating a hostile message,” and may therefore “form the basis 9 of a harassment claim.” Roby, 47 Cal. 4th at 708-09. “This occurs when the actions 10 establish a widespread pattern of bias.” Id. at 709. Moreover, “acts of discrimination can 11 provide evidentiary support for a harassment claim by establishing discriminatory animus 12 on the part of the manager responsible for the discrimination.” Id. Here, in addition to the 13 allegations about his investigation and termination, Plaintiff alleges that other employees 14 who committed the same violations were treated less harshly than he was. (Compl. ¶ 36). 15 On these facts, a California court might find that Defendants’ alleged discrimination also 16 had a secondary effect of communicating a hostile message based on Plaintiff’s age or 17 physical disability.2 At the very least, a California court would likely grant Plaintiff leave 18 to amend to add any additional allegations supporting the claim of a widespread pattern of 19 bias.3 Because leave to amend would likely be granted, Jukic’s joinder is not fraudulent 20 on this basis. See Padilla v. AT&T Corp., 697 F. Supp. 2d 1156, 1159 (C.D. Cal. 2009) 21 (“Remand must be granted unless the defendant shows that the plaintiff would not be 22 23 2 Defendants’ assertion in the Lopez Declaration that two other employees were fired as a 24 result of the investigation serves only to create a disputed issue of fact on this point, which 25 the Court must resolve in Plaintiff’s favor at this stage. 26 3 While Defendants argue that Plaintiffs admitted to having no additional factual allegations by failing to respond to Defendants’ email inquiries, Plaintiffs were under no 27 obligation to reveal all possible factual allegations supporting their claim in response to 28 Defendants’ inquiries. 1 afforded leave to amend his complaint to cure the purported deficiency.” (internal quotation 2 marks, citation, and brackets omitted)). 3 Lastly, Defendants argue that the allegations against Jukic do not rise to the level of 4 actionable harassment because they do not show that Plaintiff was subjected to “harassing 5 conduct that was so severe and pervasive that it altered the terms and conditions of 6 employment and created an abusive working environment.” (Opp. at 15). Defendants 7 acknowledge that a single incident of harassment can be sufficient to state a harassment 8 claim, but they argue that no reasonable person could view the allegations here as 9 sufficiently severe. (Id. at 17). 10 Again, the Court disagrees. In 2018, the California Legislature amended FEHA to 11 make clear that “[a] single incident of harassing conduct is sufficient to create a triable 12 issue regarding the existence of a hostile work environment if the harassing conduct has 13 unreasonably interfered with the plaintiff’s work performance or created an intimidating, 14 hostile, or offensive working environment.” Cal. Gov’t Code § 12923(b). The Legislature 15 also adopted the standard articulated by the dissenting opinion in Harris v. Forklift Systems, 16 510 U.S. 17 (1993), under which “[i]t suffices to prove that a reasonable person subject to 17 the discriminatory conduct would find . . . that the harassment so altered working 18 conditions as to make it more difficult to do the job.” Cal. Gov’t Code § 12923(a). The 19 Legislature also clarified that harassment cases require a fact-specific examination of “the 20 totality of the circumstances” and are “rarely appropriate for disposition on summary 21 judgment.” Id. §§ 12923(c), (e). Subsequently, California courts have recognized this as 22 a “new standard” and have disapproved of prior case law requiring a “concerted pattern of 23 harassment.” Beltran v. Hard Rock Hotel Licensing, Inc., 97 Cal. App. 5th 865, 880 (2023) 24 (citation omitted). 25 Under this new, more permissive standard, the Court cannot say definitively that 26 Jukic’s alleged conduct did not alter Plaintiff’s “working conditions as to make it more 27 difficult” for Plaintiff to do his job. Cal. Gov’t Code § 12923(a). Plaintiff alleges a single 28 incident of harassing conduct in which Jukic asked him about his plans for retirement and 1 urged him to consider retiring. Given the context of these comments—during Plaintiff’s 2 biannual employee review, held one month after he was injured on the job and immediately 3 following Plaintiff’s complaints about Old Dominion’s handling of safety issues—a 4 California court could find that the comments created a hostile or offensive working 5 environment by communicating the message that Plaintiff was no longer welcome at the 6 company due to his age or on-the-job injury. Additionally, as discussed above, in assessing 7 the viability of the claim, a California court might also consider the allegations related to 8 Plaintiff’s termination, based on the argument that his differential treatment from other 9 employees had a “secondary effect of communicating a hostile message.” Roby, 47 Cal. 10 4th at 708. At the very least, a court would likely grant leave to amend as to this latter line 11 of argument. 12 In their Opposition, Defendants argue that Jukic’s comments were not “as severe[] 13 as the epithets outlined in Bailey.” (Opp. at 18). But nothing in Bailey suggests that 14 comments need to be equally severe as those at issue in that case to potentially state a 15 cognizable claim. Moreover, the Bailey court did not apply the new, more permissive 16 standard set forth in § 12923. See Bailey, 16 Cal. 5th at 630 n.5. Defendants also cite two 17 cases in which courts found fraudulent joinder under similar circumstances. See Pichon v. 18 Hertz Corp., No. 17-cv-02391-EMC, 2017 WL 3215358, at *5 (N.D. Cal. July 28, 2017); 19 Wexler v. Jensen Pharms., Inc., No. CV 15-03518-AB (AJWx), 2015 WL 6159101, at *5 20 (C.D. Cal. Oct. 20, 2015). However, given that these cases were decided prior to the 21 enactment of § 12923 and relied on the lack of allegations of repeated conduct, the Court 22 finds their reasoning unpersuasive. Instead, given the California Legislature’s clear 23 indication that a single allegation can create a triable issue on a harassment claim and that 24 such claims generally pose a factual question, the Court concludes that Jukic’s joinder as a 25 defendant was not fraudulent. See Williamson v. DHL Glob. Forwarding USA, No. 2:24- 26 cv-01476-WLH-BFM, 2024 WL 1759172, at *4 (C.D. Cal. Apr. 24, 2024); Tolston v. Nike 27 USA, Inc., No. 8:25-cv-00990-DOC-DFM, 2025 WL 2299368, at *5 (C.D. Cal. July 29, 28 2025). 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS the Motion. This action is 3 ||, REMANDED to the San Bernardino County Superior Court, and this case is closed. 4 IT IS SO ORDERED. 5 6 || DATED: April 28, 2026

8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28