1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BEATRIZ TIJERINA, individually, Case No.: 22-CV-203 JLS (BGS)
12 Plaintiff, ORDER (1) DENYING PLAINTIFF’S 13 REQUEST FOR JUDICIAL NOTICE; (2) GRANTING IN PART AND 14 v. DENYING IN PART DEFENDANT’S 15 REQUEST FOR JUDICIAL NOTICE; (3) SUSTAINING IN PART AND 16 ALASKA AIRLINES, INC., OVERRULING IN PART THE 17 an Alaska Corporation; and DOES 1–50, PARTIES’ OBJECTIONS; AND Defendants. (4) DENYING PLAINTIFF’S 18 MOTION FOR REMAND 19 (ECF Nos. 9, 9-4, 9-5, 11-3, 11-4, 13-1, 20 13-2)
22 Presently before the Court are Plaintiff Beatriz Tijerina’s (“Plaintiff”) Motion for 23 Remand to State Court of San Diego County (“Mot.,” ECF No. 9) and accompanying 24 Request for Judicial Notice (“Pl.’s RJN,” ECF No. 9-5). Also before the Court are 25 Defendant Alaska Airlines, Inc.’s (“Defendant” or “Alaska”) Opposition to Plaintiff’s 26 Motion (“Opp’n,” ECF No. 11), Defendant’s accompanying Request for Judicial Notice 27 (“Def.’s RJN,” ECF No. 11-3), and Plaintiff’s Reply in Support of her Motion (“Reply,” 28 ECF No. 13). Finally, both Parties have filed a variety of objections: Plaintiff’s 1 “Objections to Defendant’s Evidence in Support of Its Notice of Removal from State 2 Court” (“Notice Objs.,” ECF No. 9-4), Defendant’s “Objections to Evidence Submitted by 3 Plaintiff in Support of Motion to Remand” (“Def.’s Objs.,” ECF No. 11-4), Plaintiff’s 4 “Evidentiary Objections to Evidence Defendant[] Submitted with Its Opposition to 5 Plaintiff’s Motion for Remand to State Court” (“Opp’n Objs.,” ECF No. 13-1), and 6 Plaintiff’s “Objections to Defendant’s Request for Judicial Notice” (“RJN Objs.,” ECF No. 7 13-2) (collectively, the “Objections”). 8 The Court took these matters under submission without oral argument pursuant to 9 Civil Local Rule 7.1(d)(1). See ECF No. 12. Having considered Defendant’s Notice of 10 Removal (“Notice,” ECF No. 1), Plaintiff’s Complaint (“Compl,” ECF No. 1-2), the 11 Parties’ arguments and evidence, and the law, the Court DENIES Plaintiff’s RJN, 12 GRANTS IN PART AND DENIES IN PART Defendant’s RJN, SUSTAINS IN PART 13 AND OVERRULES IN PART the Parties’ Objections,1 and DENIES Plaintiff’s Motion 14 for Remand, for the reasons that follow. 15 BACKGROUND 16 Plaintiff, a resident of the State of California, began working for Alaska in or around 17 March 2018 as a customer service agent at the airport in San Diego, California. Compl. 18 ¶¶ 1, 12. Plaintiff alleges that her night crew supervisor, Mark Buenaflor, engaged in 19 sexually harassing conduct toward her. Id. ¶¶ 13–17. Plaintiff reported Mr. Buenaflor’s 20 conduct to Defendant’s human resources department, Plaintiff’s other managers, and 21 Plaintiff’s union representative. Id. ¶¶ 13, 17. Plaintiff alleges that Defendant thereafter 22 retaliated against her, id. ¶¶ 19–20; and, on January 29, 2020, Plaintiff was constructively 23 terminated from her employment, id. ¶ 26. 24 Plaintiff filed this action in the Superior Court of the State of California, County of 25 San Diego, on January 4, 2022, alleging causes of actions for: (1) Quid Pro Quo Sexual 26 Harassment – California Government Code § 12940(j); (2) Hostile Work Environment – 27 28 1 Sexual Harassment – California Government Code § 12940(j); (3) Disparate Treatment – 2 California Government Code § 12940(a); (4) Failure to Prevent Harassment, Retaliation 3 and Discrimination – California Government Code § 12940(k); (5) Negligent Retention; 4 (6) Negligent Infliction of Emotional Distress; and (7) Constructive Wrongful Termination 5 in Violation of Public Policy. See generally Notice; Compl. Defendant timely removed to 6 this District on the basis that there exists complete diversity of citizenship between Plaintiff 7 and Defendant and the amount in controversy exceeds $75,000.00. See Notice at 3 (citing 8 28 U.S.C. § 1332(a)(1)). Plaintiff filed the instant Motion on March 16, 2022. See 9 generally Mot. 10 REQUESTS FOR JUDICIAL NOTICE 11 I. Legal Standard 12 “A court can consider evidence in deciding a remand motion, including documents 13 that can be judicially noticed.” Vasserman v. Henry Mayo Newhall Mem’l Hosp., 65 F. 14 Supp. 3d 932, 941 (C.D. Cal. 2014) (compiling cases). Per Federal Rule of Evidence 201, 15 a court may take judicial notice of an adjudicative fact if it “is not subject to reasonable 16 dispute because it (1) is generally known within the court’s territorial jurisdiction; or (2) 17 can be accurately and readily determined from sources whose accuracy cannot reasonably 18 be questioned.” 19 Rule 201, however, deals only with adjudicative facts. See Lindland v. TuSimple, 20 Inc., Case No. 21-CV-417 JLS (MDD), 2022 WL 687148, at *3 (S.D. Cal. Mar. 8, 2022) 21 (citation omitted). “Adjudicative facts are simply facts of the particular case,” whereas 22 legislative facts are those related to “legal reasoning and lawmaking.” Fed. R. Evid. 201(a), 23 Notes of Advisory Committee on Proposed Rules Subdivision (a). “It is unnecessary to 24 request that the court judicially notice published cases from California and federal courts 25 as legal precedent; the court routinely considers such legal authorities in doing its legal 26 analysis without a party requesting that they be judicially noticed.” Lindland, 2022 WL 27 687148, at *3 (quoting Lucero v. Wong, No. C 10-1339 SI PR, 2011 WL 5834963, at *5 28 (N.D. Cal. Nov. 21, 2011)); see Benton v. Cory, 474 F. App’x 622, 623–24 (9th Cir. 2012) 1 (“We grant [appellant]’s request for judicial notice of court filings in other proceedings, 2 but deny as unnecessary his request for judicial notice of legal authorities.”) (citing 3 Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011)); Owino v. CoreCivic, Inc., No. 17- 4 CV-1112 JLS (NLS), 2018 WL 2193644, at *2 (S.D. Cal. May 14, 2018) (“It is well 5 established that []courts may consider legal reasoning and conclusions of other federal 6 courts without resort to Rule 201.”) (citing Derum v. Saks & Co., 95 F. Supp. 3d 1221, 7 1224 (S.D. Cal. 2015)); Nguyen v. Cavalry Portfolio Servs., LLC, No. 15-CV-0063-CAB- 8 BLM, 2015 WL 12672149, at *2 (S.D. Cal. Feb. 20, 2015) (“[I]t is inappropriate to request 9 that the Court take judicial notice of legal authority, as judicial notice is reserved for 10 adjudicative fact[s] only.”) (quoting Stiller v. Costco Wholesale Corp., No. 3:09-cv-2473- 11 GPC-BGS, 2013 WL 4401371, at *1 (S.D. Cal. Aug. 15, 2013)). 12 II. Analysis 13 Both Plaintiff and Defendant request that the Court judicially notice various 14 documents. See generally Pl.’s RJN; Def.’s RJN. Specifically, Plaintiff requests the Court 15 take judicial notice of articles and information from Defendant’s website; several of 16 Defendant’s employees’ and/or board members’ LinkedIn profiles; a map of Burlingame 17 and Palo Alto, California; an online article; and two jury verdict summaries. See Pl.’s RJN. 18 Defendant, meanwhile, requests the Court take judicial notice of various court filings, jury 19 verdict summaries, and state and federal court rulings. See Def.’s RJN. The Court 20 addresses each RJN in turn. 21 A. Plaintiff’s RJN 22 Plaintiff requests judicial notice of thirteen exhibits introduced through the 23 Declaration of Jimmie D. Parker in Support of Plaintiff’s Motion for Remand (“Parker 24 Decl.,” ECF No. 9-2). See generally Pl.’s RJN. Defendant generally objects to the Parker 25 Declaration, arguing that “[e]vidence showing general business activities in California, 26 without showing that corporate officers ‘direct, control, and coordinate the corporation’s 27 activities’ from that location is . . . irrelevant.” Def.’s Objs. at 1–2. Defendant further 28 raises specific Objections to each of Plaintiff’s thirteen exhibits. Id. at 2–19. 1 First, Plaintiff seeks to have Exhibits A, B, D, H, I, K, L, and M admitted as materials 2 “not subject to ‘reasonable dispute’ because the sources are from Defendant’s website.”2 3 Pl.’s RJN at 3. However, “[i]nformation on websites, especially a party’s website, is often 4 not considered an appropriate subject of judicial notice.” Better Homes Realty, Inc. v. 5 Watmore, No. 316CV01607BENMDD, 2017 WL 1400065, at *3 (S.D. Cal. Apr. 18, 2017) 6 (citations omitted); accord Hsieh v. FCA US LLC, 440 F. Supp. 3d 1157, 1160–61 (S.D. 7 Cal. 2020) (declining to judicially notice party’s website). Cases that do judicially notice 8 information from websites often rely on the doctrine of incorporation by reference when 9 the complaint necessarily relies on information appearing on a party’s website. See, e.g., 10 Spy Optic, Inc. v. Alibaba.Com, Inc., 163 F. Supp. 3d 755, 763 (C.D. Cal. 2015) (judicially 11 noticing certain screenshots from party’s website where pleading relied on that 12 information). Accordingly, the Court DENIES Plaintiff’s RJN as to Exhibits A, B, D, H, 13 I, and K and OVERRULES AS MOOT Defendant’s Objections thereto. 14 Exhibits L and M consist of case and verdict summaries from Verdict Search. See 15 Pl.’s RJN at 2–3; see also Parker Decl. Exs. L & M. Although “the accuracy of . . . jury 16 verdicts as public records of prior proceedings can be determined by readily available 17 resources whose accuracy cannot reasonably be questioned,” Gaines v. Costco Wholesale 18 Corp., No. 2:21-CV-00992 WBS AC, 2021 WL 3077463, at *2 (E.D. Cal. July 21, 2021) 19 (citing Vasquez v. Arvato Digital Services, LLC, No. CV 11-02836 RSWL (AJWx), 2011 20 WL 2560261, at *2 (C.D. Cal. June 27, 2011)), “the Court has some concerns as to the 21 reliability of these surveys, which are created not by the courts but by private companies 22 who compile the data by speaking with attorneys,” Bloomer v. Serco Mgmt. Servs., Inc., 23 No. EDCV161655JGBRAOX, 2016 WL 4926409, at *1 (C.D. Cal. Sept. 15, 2016). 24 Accordingly, the Court SUSTAINS Defendant’s Objections and DENIES Plaintiff’s RJN 25 as to Exhibits L and M. 26 / / / 27
28 2 The Court notes, however, that Exhibits H, L, and M appear to be from third-party websites Bisnow and 1 Second, Plaintiff requests judicial notice of LinkedIn profiles for various employees 2 and board members of Defendant, contained in Exhibits C, E, F, and G, on the basis that 3 “their ‘accuracy cannot be reasonably questioned.’” Pl.’s RJN at 4 (quoting Fed. R. Evid. 4 201(b)). Plaintiff notes that judicial notice of LinkedIn profiles was granted in Perkins v. 5 LinkedIn Corporation, 53 F. Supp. 3d 1190 (N.D. Cal. 2014). See Pl.’s RJN at 4. However, 6 Perkins is distinguishable, as there, LinkedIn was a party to the action; the complaint 7 referred to the profiles in question; and LinkedIn, the defendant, also cited to and relied on 8 the profiles in its opposition brief. See 53 F. Supp. 3d at 1205. In the context of this 9 litigation and for the purposes for which Plaintiff seeks to introduce the evidence in 10 question, “LinkedIn is not a source whose accuracy cannot be reasonably 11 questioned.” Ibey v. Taco Bell Corp., No. 12-CV-0583-H WVG, 2012 WL 2401972, at *1 12 (S.D. Cal. June 18, 2012) (citing Fed. R. Evid. 201(b)); see also Scanlon v. Curtis Int’l 13 Ltd., 465 F. Supp. 3d 1054, 1062 n.8 (E.D. Cal. 2020) (citing Ibey, 2012 WL 2401972, at 14 *1). Accordingly, the Court DENIES Plaintiff’s RJN as to Exhibits C, E, F, and G and 15 OVERRULES AS MOOT Defendant’s Objections. 16 Finally, Plaintiff seeks to have the Court judicially notice Exhibit J,3 a satellite image 17 from Bing Maps, as a source whose accuracy cannot reasonably be questioned. Pl.’s RJN 18 at 4. Although “[c]ourts may judicially notice locations using maps and satellite images,” 19 Tesoro Ref. & Mktg. Co. LLC v. City of Long Beach, 334 F. Supp. 3d 1031, 1042 (C.D. 20 Cal. 2017) (citations omitted), courts also may reject a request to judicially notice 21 documents or facts properly subject to judicial notice if they are irrelevant, see Santa 22 Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1298 (9th Cir. 23 2015) (denying requests for judicial notice “on the grounds that the documents to be 24 noticed are irrelevant”) (citation omitted). Given that the Court has denied judicial notice 25 of Exhibit C, the proximity of Palo Alto to Burlingame is not relevant to the issues before 26 / / / 27
28 3 Plaintiff calls this exhibit “Exhibit 11” in its RJN, see Pl.’s RJN at 4, but it appears Plaintiff actually is 1 the Court. See Mot. at 8. Accordingly, the Court SUSTAINS Defendant’s relevance 2 Objection and DENIES Plaintiff’s RJN as to Exhibit J. 3 In summary, the Court DENIES Plaintiff’s RJN in its entirety. 4 B. Defendant’s RJN 5 Defendant, meanwhile, requests that the Court take judicial notice of thirteen 6 exhibits consisting of verdict forms, judgments, “verdict and settlement summaries” 7 prepared by vendors like Westlaw, and orders granting attorneys’ fees requests in 8 California state and federal district court cases involving allegations of, inter alia, sexual 9 harassment and wrongful termination. See generally Def.’s RJN. Plaintiff objects on the 10 ground of relevance, given that these are different cases involving different parties and 11 different facts during different time periods. See generally RJN Objs. 12 As to Exhibits 1 through 4, to the extent Defendant seeks judicial notice of verdicts 13 in prior cases, “the accuracy of the jury verdicts as public records of prior proceedings can 14 be determined by readily available resources whose accuracy cannot reasonably be 15 questioned.” Gaines, 2021 WL 3077463, at *2 (citing Vasquez v. Arvato Digital Services, 16 LLC, No. CV 11-02836 RSWL (AJWx), 2011 WL 2560261, at *2 (C.D. Cal. June 27, 17 2011)). Accordingly, the Court GRANTS Defendant’s RJN as to the verdict forms, which 18 the Court was able to independently verify. The Court DENIES Defendant’s RJN, 19 however, as to the verdict summaries, for the reasons provided supra at Section II.A.4 20 Exhibits 5 through 13 consist of court orders in other actions. As noted supra at 21 Section I, however, it is unnecessary for the Court to judicially notice legal authority; 22 accordingly, the Court DENIES Defendant’s RJN as to these exhibits. The Court may, of 23 course, rely on the identified legal authorities and the reasoning therein to the extent they 24 are analogous to the present case and the Court finds them persuasive. 25 / / / 26 27 4 The Court also SUSTAINS P laintiff’s Objections to Exhibit C and pages 2 through 9 of Exhibit D to the 28 Notice of Removal, given that those materials consist entirely of such summaries. See Notice Objs. at 2– 1 Finally, the Court OVERRULES Plaintiff’s Objections to Defendant’s RJN. The 2 Objections are moot as to the legal authorities the Court declines to judicially notice,5 and 3 the Court cannot agree that the jury verdicts are necessarily irrelevant here. Nonetheless, 4 the Court is mindful of Plaintiff’s arguments as to whether the identified authorities are 5 analogous and what facts are similar and disparate in the Analysis that follows. See, e.g., 6 DeCosta v. Headway Workforce Sols., No. CV 20-00015 LEK-KJM, 2020 WL 1822473, 7 at *5–6 (D. Haw. Apr. 10, 2020) (finding the defendant did not meet its burden to establish 8 punitive damages should be included in amount in controversy calculation given disparate 9 facts); J. Marymount, Inc. v. Bayer Healthcare, LLC, No. C 09-03110 JSW, 2009 WL 10 4510126, at *3 n.1, *3–6 (N.D. Cal. Nov. 30, 2009) (taking judicial notice of verdict forms 11 and fees awards in other actions but nonetheless finding the defendant failed to establish 12 amount in controversy exceeds jurisdictional threshold). 13 In short, the Court GRANTS IN PART AND DENIES IN PART Defendant’s 14 RJN. 15 PLAINTIFF’S MOTION FOR REMAND 16 I. Legal Standard 17 A defendant may remove an action “brought in a State court of which the district 18 courts of the United States have original jurisdiction” to federal court. 28 U.S.C. § 1441(a). 19 Section 1441 provides two bases for removal: diversity jurisdiction and federal question 20 jurisdiction. Here, Defendant asserts jurisdiction is based on diversity. See generally 21 Notice. Federal courts have diversity jurisdiction “where the amount in controversy” 22 exceeds $75,000.00 and the parties are of “diverse” state citizenship. 28 U.S.C. § 1332. 23 The party invoking the removal statute bears the burden of establishing that federal 24 subject-matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th 25 Cir. 1988). Moreover, courts “strictly construe the removal statute against removal 26 jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 27
28 5 The Court also OVERRULES Plaintiff’s Objections to pages 10 through 53 of Exhibit D to the Notice 1 863 F.2d 662, 663 (9th Cir. 1988)); Takeda v. Nw. Nat’l Life Ins. Co., 765 F.2d 815, 818 2 (9th Cir. 1985)). Therefore, “[f]ederal jurisdiction must be rejected if there is any doubt as 3 to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citing Libhart v. Santa 4 Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). 5 II. Analysis 6 Plaintiff challenges Defendant’s removal based on both the diversity-of-citizenship 7 and amount-in-controversy requirements for diversity jurisdiction. See generally ECF No. 8 9-1 (“Mot. Mem.”). Plaintiff contends that Defendant’s removal was improper because (1) 9 Defendant’s “nerve center” is in California; and (2) Defendant failed to proffer sufficient 10 evidence to meet its burden of establishing the amount in controversy. Id. at 1–2. The 11 Court addresses each argument in turn. 12 A. Diversity of Citizenship 13 Although it is agreed that Plaintiff is a resident and citizen of the State of California, 14 See Compl. ¶ 1; Mot. Mem. at 1; Notice ¶¶ 5–6, the Parties contest Defendant’s citizenship. 15 For purposes of diversity jurisdiction, “a corporation shall be deemed to be a citizen of 16 every State and foreign state by which it has been incorporated and of the State or foreign 17 state where it has its principal place of business . . . .” 28 U.S.C. § 1332(c)(1). “Under the 18 ‘nerve center’ test, a corporation’s principal place of business ‘should normally be the 19 place where the corporation maintains its headquarters—provided that the headquarters is 20 the actual center of direction, control, and coordination.’” 3123 SMB LLC v. Horn, 880 21 F.3d 461, 465 (9th Cir. 2018) (citation omitted). In its Notice of Removal, Defendant 22 asserts that it is a corporation incorporated under the laws of the State of Alaska with its 23 principal place of business, i.e., “nerve center,” in the State of Washington. Notice ¶ 8. 24 While Plaintiff concedes that Defendant is incorporated in Alaska, see Compl. ¶ 1, Plaintiff 25 argues that Defendant’s “nerve center” is in Burlingame, California, see Mot. Mem. at 6, 26 and therefore complete diversity is lacking among the Parties. Plaintiff bases this argument 27 primarily on job postings and job announcements for several regional managerial positions 28 from Defendant’s website. See id. at 7–8. 1 The Court finds that Defendant sets forth appropriate and sufficient evidence in the 2 Declaration of Alexandra Wittenberger (“Wittenberger Decl.,” ECF No. 11-1), 3 Defendant’s Managing Director of Corporate Affairs and Compliance and Assistant 4 Corporate Secretary, see id. ¶ 2, to establish that Defendant’s “nerve center” is in SeaTac, 5 Washington. Ms. Wittenberger declares, based on her personal knowledge, that a 6 significant number of Defendant’s senior officers—including members of the “C-suite,” 7 such as the President and Chief Executive Officer, the Executive Vice President and Chief 8 Commercial Officer, the Executive Vice President and Chief Operations Officer, and the 9 Executive Vice President Finance and Chief Financial Officer—are located in and operate 10 out of the State of Washington. Id. ¶¶ 1, 3, 6. She further declares that SeaTac, 11 Washington, is where Defendant is headquartered and where its “high level corporate 12 officers direct, control, and coordinate Alaska’s major executive activities.” Id. ¶ 4.6 13 Plaintiff argues that Burlingame, California, is Defendant’s principal place of 14 business, given that Defendant has hired, or seeks to hire, a Regional Vice President and a 15 Director of California Commercial Performance to work out of its Burlingame, California, 16 office. See Mot. Mem. at 7; Reply at 5–6. The Court has declined to judicially notice the 17 documents on which Plaintiff relies in making this argument; however, even were the Court 18 to consider Plaintiff’s evidence, the Court finds Plaintiff’s argument unpersuasive and 19 agrees with Defendant that “corporations are not citizens of every state in which regional 20 leaders conduct business operations, or even where the corporation does the majority of 21 [its] business.” Opp’n at 5 (citing Martinez v. Check ‘N Go of Cal., Inc., No. 15-CV-1864 22 23 6 The Court OVERRULES P laintiff’s Objections to the Wittenberger Declaration. Plaintiff argues that 24 Ms. Wittenberger’s statements concerning corporate citizenship lack foundation and/or personal knowledge and are hearsay statements that are not the best evidence. See Opp’n Objs. at 1–6. Under 25 Federal Rule of Evidence 602, a witness may not testify as to a matter “unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove 26 personal knowledge may, but need not, consist of the witness’ own testimony.” Ms. Wittenberger provides such testimony in her declaration. See Wittenberger Decl. ¶ 3. Moreover, courts within the 27 Ninth Circuit repeatedly “have found similar declarations sufficient to establish a corporation’s 28 citizenship.” Gonzalez v. Starwood Hotels, Case No. CV 16-1068-GW (JEMx), 2016 WL 1611576, at *4 1 H (RBB), 2016 WL 6103166, at *3 n.1 (S.D. Cal. Feb. 18, 2016)). In fact, much of the 2 evidence on which Plaintiff relies to establish Defendant’s supposed California citizenship 3 actually undercuts Plaintiff’s position. For example, Plaintiff quotes Alaska’s Regional 4 Vice President, Neil Thwaites, as saying Defendant is “‘continu[ing] to grow [its] presence 5 and network in [California] moving forward.” Mot. Mem. at 9 (quoting Parker Decl. Ex. 6 A). This suggests California is a developing rather than established market for Alaska. 7 Ultimately, “‘[i]nformation regarding the principal place of business of the corporate 8 Defendant[] [is] uniquely within Defendant[’s] capacity to ascertain.’” Gonzalez, 2016 9 WL 1611576, at *4 (quoting Schnabel v. Lui, 302 F.3d 1023, 1032 (9th Cir. 2002)). 10 Defendant asserts, and the Court agrees, based on the evidence before it, that Alaska’s 11 principal place of business is in the State of Washington. 12 Accordingly, the Court finds that, while Plaintiff is a citizen of California, Defendant 13 is a citizen of both Alaska, its state of incorporation, and Washington, where its principal 14 place of business and “nerve center” is located; therefore, complete diversity of citizenship 15 exists between the Parties. The Court therefore DENIES Plaintiff’s Motion to the extent 16 it argues diversity of citizenship is not satisfied here. 17 B. Amount in Controversy 18 The Parties also dispute whether the amount at stake in the litigation reaches the 19 amount in controversy requirement of $75,000.00. In its Notice of Removal, Defendant 20 satisfied its burden of plausibly alleging an amount in controversy exceeding $75,000.00. 21 See Notice at 4–8. Plaintiff contests these allegations and argues that Defendant has not 22 established the jurisdictional amount by a preponderance of the evidence. Mot. Mem. at 23 9. Defendant, meanwhile, argues that Plaintiff’s requested relief for economic losses, 24 emotional distress damages, punitive damages, and attorneys’ fees “more likely than not” 25 exceeds $75,000.00. Opp’n at 6–7. 26 In determining the amount in controversy, courts look first to the complaint. Ibarra 27 v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). “[I]n cases where a plaintiff’s 28 state court complaint does not specify a particular amount of damages, the removing 1 defendant bears the burden of establishing, by a preponderance of the evidence, that the 2 amount in controversy exceeds [$75,000.00].” E.g., Sanchez v. Monumental Life Ins. Co., 3 102 F.3d 398, 404 (9th Cir. 1996). When assessing the amount in controversy, the Court 4 considers the “amount at stake in the underlying litigation.” Chavez v. JPMorgan Chase 5 & Co., 888 F.3d 413, 417 (9th Cir. 2018). 6 Here, Plaintiff initiated this action in the Superior Court of California as an unlimited 7 case, indicating that the “[a]mount demanded exceeds $25,000.” See ECF No. 1-2 at Civil 8 Case Cover Sheet. However, because Plaintiff’s Complaint does not specify a precise 9 amount in damages, Defendant must prove that it is more likely than not that the amount 10 in controversy exceeds $75,000.00. See Sanchez, 102 F.3d at 404. 11 Plaintiff has requested in her Prayer for Relief, inter alia, general damages, special 12 and compensatory damages, punitive damages, prejudgment and post-judgment interest, 13 costs, and attorneys’ fees. See Compl. at Prayer for Relief. Among her general and special 14 damages, Plaintiff seeks emotional distress damages. See, e.g., id. ¶¶ 33–34, 48–49, 78, 15 83. Defendant argues that the Court therefore should consider, in determining the amount 16 at stake, “plaintiff’s alleged aggregate damages, special damages, punitive damages, and 17 attorneys’ fees.” Opp’n at 7. Plaintiff counters that Defendant’s speculative numbers are 18 insufficient to satisfy the amount in controversy, although Plaintiff does not provide 19 support for her position that the amount at stake is $75,000.00 or less. See generally Reply. 20 1. Economic Damages 21 Plaintiff seeks “special and compensatory damages including loss of past, present, 22 and future earnings and benefits,” Compl. at Prayer for Relief, which are properly 23 considered in the amount in controversy analysis, see Chavez, 888 F.3d at 415–16. 24 Defendant argues that Plaintiff likely will seek at least $18,349.00 in backpay. Opp’n at 25 7. Defendant reasonably calculated this estimate by multiplying Plaintiff’s ending hourly 26 rate of $16.25 by her average working hours of 21.7 hours per week. Id. (citing Declaration 27 / / / 28 / / / 1 of Laura Crisp (“Crisp Decl.,” ECF No. 11-2) ¶¶ 4–5). Defendant’s conservative estimate 2 of backpay from the date that Plaintiff resigned on January 29, 2020, through January 2021 3 takes into consideration Plaintiff’s vague statement that she obtained new work “in 2021” 4 without stating when in 2021 she became employed, how much she made at her new 5 employment, or how many hours per week she worked. See id.; Mot. Mem. at 10. The 6 Court finds Defendant’s estimate of $18,349.00 a reasonable and moderate approximation 7 of the past earnings Plaintiff seeks in this litigation. 8 Although courts have discretion to include front pay in the amount in controversy, 9 see Opp’n at 8 (citing Traxler v. Multnomah Cnty., 596 F.3d 1007, 1015 (9th Cir. 2010); 10 Ackerman v. W. Elec. Co., Inc., 643 F. Supp. 836, 856 (N.D. Cal. 1986)), the Court finds, 11 in light of the lack of relevant evidence, that any possible front pay is too speculative to 12 include in the amount in controversy analysis. The Court therefore finds Defendant’s 13 estimate of $18,349.00 to be a conservative and reasonable estimate of Plaintiff’s economic 14 damages at stake in this litigation. 15 2. Emotional Distress Damages 16 As previously noted, Plaintiff seeks emotional distress damages in this action— 17 namely, compensation for her “severe emotional and mental distress, anguish, 18 embarrassment, sleepless nights, humiliation, degradation, headaches, inconvenience, and 19 loss of enjoyment of life.” Compl. ¶ 83. Emotional distress damages are properly 20 considered in the amount in controversy determination. See Chavez, 888 F.3d at 415–16 21
22 7 Plaintiff objects to the Crisp Declaration for lack of personal knowledge and/or lack of foundation. See Opp’n Objs. at 6–10. The Court OVERRULES these Objections. Ms. Crisp declares that she is a Senior 23 Paralegal for Alaska and, in that role, has access to personnel and payroll information and personal 24 knowledge of Alaska’s processes and policies with respect to such records. See Crisp Decl. ¶ 3. She declares she has personal knowledge of the facts within her declaration. Id. ¶ 1. The Court finds this 25 sufficient to support Defendant’s amount-in-controversy analysis. See, e.g., Bryant v. NCR Corp., 284 F. Supp. 3d 1147, 1151 (S.D. Cal. 2018) (“‘Where, as here, a defendant must prove the amount in controversy 26 by a preponderance of the evidence, a declaration or affidavit may satisfy the burden.’ Ms. [Crisp] established a sufficient foundation for her testimony, particularly at this early stage of the litigation, by 27 declaring knowledge of the employment data provided in her declaration was based on her normal 28 business responsibilities and personal review of Defendant’s personnel records.”) (quoting Ray v. Wells 1 (“[T]he amount in controversy is determined by the complaint operative at the time of 2 removal and encompasses all relief a court may grant on that complaint if the plaintiff is 3 victorious.”). 4 Defendant argues that “the vagueness of plaintiff’s pleadings with regard to 5 emotional distress damages should not preclude this Court from noting that these damages 6 are potentially substantial.” Opp’n at 8 (quoting Richmond v. Allstate Ins. Co., 897 F. 7 Supp. 447, 450 (S.D. Cal. 1995)). Defendant points to three sexual harassment cases in 8 the employment context in which the jury verdicts for pain and suffering damages range 9 from $100,000.00 to $3,000,000.00. Opp’n at 9; Def.’s RJN Exs. 1–3. The Court finds 10 these cases to be sufficiently factually similar to the instant matter to be persuasive in 11 assessing the possible amount in controversy.8 And, while the Court denied judicial notice 12 over Plaintiff’s Exhibits L and M, the Court notes that the plaintiff in Trias v. Associated 13 Construction requested $200,000.00 in emotional distress damages for alleged sexual 14 harassment. See Mot. Mem. at 11; Parker Decl. Ex. L. Plaintiff makes much of the fact 15 that the plaintiff in that sexual harassment case ultimately was awarded less than 16 $75,000.00, see Mot. Mem. at 11; however, the amount in controversy is analyzed by how 17 much a plaintiff seeks, not by how much she will recover. 18 / / / 19
20 8 In Meadowcroft v. Silverton Partners Inc., No. BC633239 (Cal. Super. Ct. Sept. 11, 2018), the jury awarded two plaintiffs $2.5 million each for emotional distress damages where the supervisor was alleged 21 to have touched and made sexual advances towards the plaintiffs. See Opp’n at 9; see also Meadowcroft, 2017 WL 10899993 (first amended complaint containing factual allegations). In Allstot v. City of Los 22 Angeles, No. BC592492 (Cal. Super. Ct. Apr. 4, 2018), the jury awarded $3 million in pain and suffering damages where the plaintiff’s supervisor allegedly subjected her to unwanted sexual remarks, leered at 23 her body, touched her without her consent, and made demeaning comments towards her. See Opp’n at 9; 24 see also Allstot, 2016 WL 11469651 (second amended complaint containing factual allegations). In Vandermat v. Creative Stoneworks, Inc., No. RG-09-442509 (Cal. Super. Ct. Aug. 17, 2012), the jury 25 awarded $100,000.00 in pain and suffering damages for plaintiff’s claims for sex discrimination, sexual harassment, retaliation, and failure to take reasonable steps to prevent harassment, where Plaintiff’s 26 supervisor allegedly tried to lay his head in her lap, attempted to hold her hand, and touched her leg. See Opp’n at 9; see also Vandermat, 2011 WL 10621649 (first amended complaint containing factual 27 allegations). While the Court declined to judicially notice the case summaries submitted by Defendant 28 supra, the Court did judicially notice the jury verdict forms and also can and does judicially notice the 1 Plaintiff argues that a defendant cannot cite to a list of cases with large emotional 2 distress damages without analogizing to the claims at issue. Reply at 8 (citing Barrera v. 3 Albertsons LLC, 2019 WL 1220764, at *3 (C.D. Cal., 2019)). However, the Court finds 4 Defendant’s cited cases have similar facts to the instant case, as Plaintiff alleges that 5 Defendant failed to take reasonable steps to prevent harassment and that her supervisor 6 inappropriately touched her and made unwanted sexual advances, demeaning comments, 7 and gestures towards her. See generally Compl. Given the nature and similarity of the 8 conduct at issue in the instant action and the cases to which Defendant cites, the Court finds 9 that it is more likely than not that significant emotional distress damages are at stake in this 10 litigation. Thus, the Court agrees with Defendant that an estimate of $75,000.00 is 11 conservative and reasonable. See Opp’n at 9; see also Andrade v. Arby’s Restaurant Grp., 12 Inc., 225 F. Supp. 3d 1115 (N.D. Cal. 2016) (on motion for default judgment, awarding 13 plaintiff asserting claims for sexual harassment and violations of state and federal wage 14 laws backpay totaling more than $13,000.00, emotional distress damages of $50,000.00, 15 and attorneys’ fees exceeding $42,000.00). 16 3. Punitive Damages 17 The Court also may consider punitive damages in determining the amount in 18 controversy. Davenport v. Mutual Benefit Health & Accident Ass’n, 325 F.2d 785, 787 19 (9th Cir. 1963). Plaintiff argues that the Court must consider how likely it is that Plaintiff 20 will recover punitive damages to include punitive damages in the amount in controversy. 21 Reply at 9. The Court however, disagrees; in determining the amount in controversy, it is 22 not the Court’s duty to find how likely it is that the Plaintiff will recover certain damages, 23 but rather the amount “at stake in the underlying litigation.” See Chavez, 888 F.3d at 417. 24 Punitive damages are at stake because Plaintiff requested them in her Prayer for Relief and 25 is entitled to them if she prevails on her claims. See Compl. at Prayer for Relief; see also 26 Priest v. Rotary, 634 F. Supp. 571, 584–85 (N.D. Cal. 1986) (finding exemplary damages 27 available in cases alleging sexual harassment in violation of California law). 28 / / / 1 Defendant notes that punitive damages “should bear a reasonable relation to actual 2 damages, even though no fixed ratio exists to determine the proper proportion.” Opp’n at 3 10 (citing Rosenor v. Sears, Roebuck & Co., 110 Cal. App. 3d 740, 751 (1980)). Defendant 4 claims that punitive damages typically awarded in similar cases are equal to or greater than 5 compensatory damages. Opp’n at 10. Plaintiff contends that punitive damages should be 6 determined by considering “the Defendant’s financial condition; plaintiff’s vulnerability; 7 and how reprehensible Defendant’s conduct was.” Reply at 9 (citing Adams v. Murakami, 8 54 Cal. 3d 105, 112 (1991)). Taking into consideration the fact that Defendant is a major 9 international airline, as well as the nature and reprehensibility of the allegations against 10 Defendant and its employee, the Court finds Defendant’s suggested ratio of 1:1 for punitive 11 damages to compensatory and emotional distress damages to be a conservative 12 approximation of the punitive damages at stake here. See Opp’n at 10. Accordingly, the 13 punitive damages at stake in the instant action alone likely exceed the $75,000.00 amount- 14 in-controversy threshold. 15 4. Attorneys’ Fees 16 The Court also may include attorneys’ fees in the amount in controversy. See Galt 17 G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998). Defendant relies on 18 attorneys’ fees awards in factually similar sexual harassment and employment 19 discrimination cases to argue that the attorneys’ fees alone at stake here likely exceed the 20 $75,000.00 jurisdictional threshold. Opp’n at 11. Plaintiff argues that the Court cannot 21 base its jurisdictional analysis on speculation and that Defendant fails to support its position 22 adequately. Reply at 10. Although the attorneys’ fees alone in the instant case could well 23 exceed $75,000.00, the Court will adopt a conservative estimate of $30,000.00, a number 24 that various district courts within the Ninth Circuit have utilized in assessing the amount 25 in controversy in similar matters. See Opp’n at 11 n.7 (citing, inter alia, Sasso v. Noble 26 Utah Long Beach, LLC, 2015 WL 898468, at *5–6 (C.D. Cal. Mar. 3, 2015)). 27 / / / 28 / / / 1 5. Conclusion 2 “Thus, although plaintiff[] ha[s] not made any explicit demands for over 3 [$75,000.00], plaintiff] ] make[s] no binding representation that [she] seek|s] any less than 4 ||that amount in the face of [Defendant’s] offer of proof that the [sexual harassment] claims 5 asserted here overwhelmingly result in verdicts well over the jurisdictional amount, and 6 rarely, if ever, result in a verdict less than [$75,000.00].” Richmond y. Allstate Ins. Co., 7 ||897 F. Supp. 447, 451 (S.D. Cal. 1995). Considering a conservative minimum of 8 ||/$18,349.00 in economic damages, $75,000.00 in emotional distress damages, $93,349.00 9 punitive damages, and $30,000.00 in attorneys’ fees, the amount at stake in the 10 || underlying action likely is at least $216,698.00, a figure that far exceeds the jurisdictional 11 |}minimum. Accordingly, the Court DENIES Plaintiff's Motion to the extent it argues the 12 ||amount-in-controversy requirement is not met here. 13 C. Conclusion 14 The Court finds that Defendant establishes by a preponderance of the evidence that 15 ||the Parties are diverse and the amount in controversy is satisfied; therefore, denial of 16 || Plaintiff's Motion for Remand is proper. 17 CONCLUSION 18 In light of the foregoing, the Court DENIES Plaintiff's Request for Judicial Notice 19 ||(ECF No. 9-5), GRANTS IN PART AND DENIES IN PART Defendant’s Request for 20 || Judicial Notice (ECF No. 11-3), SUSTAINS IN PART AND OVERRULES IN PART 21 || the Parties’ Objections (ECF Nos. 9-4, 11-4, 13-1, 13-2), and DENIES Plaintiff's Motion 22 || for Remand (ECF No. 9). 23 IT IS SO ORDERED. 24 ||Dated: August 5, 2022 peach Jt, neraeaitecee 25 on. Janis L. Sammartino 6 United States District Judge 27 28