Gregorio Gonzalez v. Nissan North America, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] GREGORIO GONZALEZ, an Case No. 2:24-cv-01301-WLH-MAR 1 individual, ORDER RE MOTION TO REMAND 12 Plaintiff, [12] [13] V. NISSAN NORTH AMERICA, INC., a 15 | Delaware Corporation, and DOES 1 through 10, inclusive, [16] Defendants. [19] 20 Plaintiff Gregorio Gonzalez (‘Plaintiff’) filed a Motion to Remand. (“Motion,” 21 | Docket No. 12). The Court VACATED the Motion hearing scheduled for April 26, 22 | 2024, finding the Motion suitable for decision without oral argument. (Order, Docket 23 | No. 17). As set forth below, the Motion is DENIED. 24 | I. BACKGROUND 25 A. Factual Background 26 This case arose when Plaintiff purchased a 2022 Nissan Altima (“Subject 27 | Vehicle”). (Compl., Docket No. 1-1 4 11). The Subject Vehicle “was purchased as a 28 | new vehicle with an accompanying...new warranty” issued by Defendant. (/d. 1 | 8-11). Plaintiff alleges that the Subject Vehicle was delivered to him with “serious 2 | defects and nonconformities to warranty,” (id. 13), and that the Subject Vehicle later 3 | developed “other serious defects,” including “steering, suspension, structural, and 4 | electrical system defects...” (/d.). Plaintiff further alleges that Defendant, after a 5 | reasonable number of repair attempts, failed to conform the Subject Vehicle as it had 6 || warranted to do. (Ud. ¥§| 14-25). Defendant also, according to Plaintiff, “fraudulently 7 || concealed/omitted from Plaintiff’ prior to the sale of the Subject Vehicle “the 8 || defective Forward Emergency Braking System.” (/d. § 26). As a result of these 9 | actions, Plaintiff alleges that Defendant breached its express and implied warranties 10 | and engaged in actionable fraud. (Ud. {J 29, 49). 11 B. Procedural History 12 On May 10, 2023, Plaintiff originally filed this lawsuit in Los Angeles Superior 13 | Court, (Notice of Removal, Docket No. 1 at Exh. A), asserting claims for violations of 14 | California’s Song-Beverly Act and Fraudulent Concealment against defendants Nissan 15 | North America, Inc. (“Defendant”) and Does | through 10, inclusive. (/d.). 16 | Defendant answered the complaint in state court. U/d. at Exh. B). On October 20, 17 | 2023, Plaintiff served Defendant with the initial set of discovery, including a Request 18 | for Production of documents. (Pakbaz Decl., Docket No. 12-1 4 9). On November 19 | 21, 2023, Defendant served on Plaintiff a document production that included the 20 | Retail Installment Sales Contract, Factory Invoice, Repair Orders, Owner’s Manual, 21 | and the Warranty Guide. (/d. 4 9; id. at Exh. 5). 22 On December 31, 2023, Defendant conducted its own “investigation pertaining 23 | to the removability of the matter,” and determined it was removable. (Notice of 24 | Removal, Docket No. 1 at 3). On February 16, 2024, Defendant filed a Notice of 25 | Removal. (/d.). Plaintiff then filed the present Motion to Remand to Los Angeles [28] 1 | Superior Court. (Mot., Docket No. 12). The matter is fully briefed. (See Opp’n, 2 | Docket No. 14; Reply, Docket No. 15). 3 | II. DISCUSSION 4 A. Local Rule 7-3 Conference 5 i. Legal Standard 6 Local Rule 7—3 requires parties to meet and confer at least seven days prior to 7 | filing a motion. L.R. 7-3. The Court “strictly enforces” Local Rule 7—3’s meet and 8 || confer requirements. (Standing Order, Docket No. 7 at 10). 9 ii. Analysis 10 Here, Plaintiff admits in his Motion that the parties did not meet and confer 11 | until March 13, 2024—only two days before Plaintiff filed the Motion on March 15, 12 | 2024. This meet and confer does not comply with Local Rule 7-3 (requiring the 13 | parties to meet and confer “at least 7 days prior to the filing of the motion”). The 14 | Court could decline to consider the Motion on this basis alone. L.R. 7—4 (“The Court 15 | may decline to consider a motion unless it meets the requirements of L.R. 7—3...); see 16 | also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming the dismissal of a 17 | case due to a failure to follow local rules). The Court exercises its discretion to hear 18 | the motion on the merits but admonishes Plaintiff to comply with all applicable rules 19 | going forward. 20 B. Timing of Removal 21 The Court DENIES the Motion because, in addition to failing to timely meet 22 | and confer, Plaintiff fails to show that remand is warranted. 23 i. Legal Standard 24 In general, “any civil action brought in a State court of which the district courts 25 | of the United States have original jurisdiction, may be removed by the defendant or 26 | defendants, to the district court[.]” 28 U.S.C. § 1441 (a). The removing party has the 27 | burden to show that removal is proper. See, e.g., Abrego Abrego v. The Dow Chem. 28 | Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (“[T]he burden on removal rests 1 with the removing defendant.”). If at any time before final judgment it appears that 2 the district court lacks subject matter jurisdiction, the case “shall be remanded.” 28 3 U.S.C. § 1447 (c). 4 With respect to the timing of removal, “[t]here are two different 5 potential…deadlines.” Isabelle Franklin, et al. v. Healthsource Global Staffing, Inc., 6 et al., No. 23-CV-0662-AGS-DEB, 2024 WL 1055996 , at *2 (S.D. Cal. Mar. 11, 7 2024). The first potential deadline is triggered if an initial pleading “‘affirmatively 8 reveals on its face the facts necessary for federal court jurisdiction.’” Solis v. Nissan 9 North Amer., Inc., No. CV 24-00728-MWF-E, 2024 WL 1311275 , at *2 (C.D. Cal. 10 Mar. 27 , 2024) (quoting Harris v. Bankers Life & Case. Co., 425 F.3d 689, 691 (9th 11 Cir. 2005)); see also 28 U.S.C. § 1446 (b)(1). “If an initial pleading is not removable 12 on its face, then the first 30-day period for removal is not triggered.” Avina v. Ford 13 Motor Co., No. CV 23-10573-PA-E, 2024 WL 688664 , at *2 (C.D. Cal. Feb. 20, 14 2024). 15 The second potential deadline for removal is triggered after “the defendant 16 received ‘an amended pleading, motion, order or other paper’ from which it can be 17 ascertained from the face of the document that removal is proper.” Harris, 425 F.3d 18 at 694 (quoting 28 U.S.C. § 1446 (b)(3)). This clock for the second removal deadline 19 begins running upon “‘defendant’s receipt of a document from the plaintiff or the state 20 court—not by any action of defendant.’” Solis, 2024 WL 1311275 , at *2 (quoting 21 Franklin, 2024 WL 1055996 , at *2). 22 Beyond those two deadlines, a defendant may remove a case where it “‘could 23 have’ demonstrated removability earlier based on its knowledge beyond the 24 pleadings.” Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136 , 1141 n.3 (9th 25 Cir. 2013). It is not, however, “‘obligated to do so.’” Id. 26 ii. Analysis 27 Here, the Court DENIES Plaintiff’s Motion to Remand for the same reasons 28 that courts in this district have denied identical arguments from Plaintiff’s counsel. 1 | See, e.g., Solis, 2024 WL 1311275 , at *2 (denying the motion to remand); Vasquez v. 2 | Nissan N. Am., Inc., No. 2:24-cv-00302-GW-E, at 7 (C.D. Cal. March 7, 2024) 3 | (Tentative Order, Docket No. 20 at 7 (denying the motion to remand)).' 4 First of all, counter to Plaintiff's arguments, (see, e.g., Mot., Docket No. 12 at 3 5 | (complaining that “Nissan’s Notice of Removal comes 246 days after the thirty (30) 6 || day deadline for removal” (emphasis in original)), the initial complaint did not trigger 7 | the first deadline for removal because it did not contain allegations related to the 8 || amount in controversy. See Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136 , 9 | 1139 (9th Cir. 2013) (noting that the first removal deadline is not triggered by 10 | “‘indeterminate’” pleadings, i.e. pleadings that do not, on their face, “make clear 11 | whether the required jurisdictional elements are present.”). That the caption page 12 | stated that the amount in controversy “exceeds $25,000” is not sufficient to trigger the 13 | first removal deadline, and no other amount in controversy allegations otherwise 14 | appear in the complaint. (See Notice of Removal at Exh. A, Docket No. 1-1 at 36 15 | (referring to CM/ECF pagination)); Stusa Holdings v. Ford Motor Co., No. 5:21-cv16 | 02172-SVW-SHK, 2022 WL 2235815 , at *1—2 (C.D. Cal. Feb. 22, 2022) (rejecting 17 | argument that complaint triggered 30-day removal period where caption page and 18 || accompanying civil cover sheet alleged that damages “exceeded $25,000”); Sevilla v. 19 | Life Care Centers of Am., Inc., No. CV 15-5977, 2015 WL 7013112 , at *2 (C.D. Cal. 20 | Nov. 12, 2015) (explaining that if a caption page that says an action exceeds $25,000 21 | provided a basis for removal, “this Court would automatically have jurisdiction over 22 | all California actions filed in courts of unlimited jurisdiction where diversity is 23 | met[]’). Plaintiff is displeased that the removal occurred “246 days after’ the 24 | complaint was filed, but by failing to allege an amount in controversy in the [25] 6 □□□ Vasquez v. Nissan North America, the tentative order regarding the motion to 27 || remand was issued on March 7, 2024. Vasquez, No. 2:24-cv-00302-GW-E (Tentative Order re Motion to Remand, Docket No. 20). The Court adopted the tentative order 28 || on March 11, 2024. Jd. (Minute Order, Docket No. 22). 1 | complaint, Plaintiff himself “le[ft] the window for removal open.” Kuxhausen, 707 2 | F.3d at 1139 (forcing plaintiffs to “assume the costs associated with their own 3 | indeterminate pleadings...’’). 4 The second deadline for removal—Defendant’s receipt of an “amended 5 || pleading, motion, order or other paper’ from which it can be ascertained from the face 6 | of the document that removal is proper,” Harris, 425 F.3d at 694 (quoting 28 U.S.C. 7 | § 1446(b)(3))—also was not triggered here. Plaintiff argues that “[a]s of June 14, 8 | 2023, Nissan had sufficient information to plausibly allege satisfaction of the 9 | jurisdictional threshold....” (Mot., Docket No. 12 at 4). Plaintiff claims this is so 10 | because, Defendant later served on Plaintiff discovery responses including “a 11 | document production” containing the “Retail Installment Sales Contract,” among 12 | other things, which would allegedly give Defendant notice of the amount in 13 | controversy and trigger removability. (Mot., Docket No. 12 at 4 (arguing that 14 | Defendant did not timely “conduct an investigation” of its own documents “pertaining 15 || to...removability”)). However, as other courts in this district have explained ad 16 | nauseum, [17] 18 Section 1446(b)(3) speaks to a defendant’s “receipt” of — among other things — a “paper” demonstrating removability. 19 A leading practice guide indicates this communication of 0 information must be “the result of a voluntary act on plaintiff's part — e.g., sworn answers to interrogatories.” 2] Stevenson & Fitzgerald, 2:3246, at 2D-156 — 157 (emphasis 02 added). Defendant’s possession of that information all along, or at least as of [June 14, 2023], does not qualify. [23] 24 | Vasquez v. Nissan N. Am., Inc., No. 2:24-cv-00302-GW-E, Minute Order, Docket No. 25 | 20 at 4-5. (C.D. Cal. Tentative Order, March 7, 2024), adopted id., Docket No. 22 26 | (C.D. Cal. Minute Order, March 11, 2024) (citing Roth v. CHA Hollywood Med. Ctr., 27 || L.P., 720 F.3d 1121, 1125 (9th Cir. 2013) (“We conclude that [28 U.S.C.] §§ 1441 [28] 1 | and 1446, read together, permit a defendant to remove outside the two thirty-day 2 | periods on the basis of its own information, provided that it has not run afoul of either 3 | of the thirty-day deadlines.”) (emphasis added)); see also Adelpour v. Panda Express, 4 | Inc., No. CV-10-02367 MMM (AGRx), 2010 WL 2384609 , at *4 n.7 (C.D. Cal. June 5 | 8, 2010) (The “other paper” in Section 1446(b)(3) cannot be one created by defendant; 6 | it “must derive from either the voluntary act of the plaintiff... or other acts or events 7 | not the product of the removing defendant’s activity.) (citations omitted); Owen v. 8 | L’Occitane, Inc., No. CV-12-09841 MMM (JCGx), 2013 WL 941967 , *8 (C.D. Cal. 9 | March 8, 2013) (“The requirement that the removing defendant receive a pleading or 10 | ‘other paper’ means that the ‘document that triggers the thirty-day removal period 11 | cannot be one created by the defendant.’”) (quoting Rossetto v. Oaktree Capital □□□□ 12 | LLC, 664 F. Supp. 2d 1122, 1129 (D. Haw. 2009)). 13 Plaintiff's final argument is also unavailing. Plaintiff argues that, taking as true 14 | Defendant’s representation that its own investigation revealed that the case was 15 | removable as of December 31, 2023, (Notice of Removal, Docket No. | at 3), 16 | Defendant had a deadline to file its notice of removal within 30 days of the December 17 | 31, 2023, purported self-discovery of removability. (See Mot., Docket No. 12 at 8 18 | (“Defendant’s Notice of Removal was filed on February 16, 2024 — 17 days after 19 | Defendant’s self-purported 30-day “deadline” to file its notice of removal, based upon 20 | its claimed initial investigation of Plaintiff's sales contract on December 31, 2023.”)). 21 | Plaintiff cites no authority for the proposition, however, that a defendant must remove 22 | the case within 30 days of its own realization of removability pursuant to an 23 | investigation—nor does 28 U.S.C. § 1446 impose such a deadline. See 28 U.S.C. 24 | § 1446(b)(1)-(3) (imposing 30-day removal deadlines only when either one of two 25 | things occurs: (1) the defendant receives a complaint that is removable on its face, or 26 | (11) the defendant receives “an amended pleading, motion, order or other paper” 27 | showing removability). Indeed, establishing a rule that a third, atextual removal 28 | deadline arises upon the Defendant’s realization of removability pursuant to its own 1 | documents and investigation would “hold that materials outside the complaint [or 2 | other paper defendant receives] start the thirty-day clock,” an approach the Ninth 3 | Circuit has rejected. Kuxhausen, 707 F.3d at 1141 (“Preferring a clear rule, and 4 | unwilling to embroil the courts in inquires ‘into the subjective knowledge of [a] 5 || defendant,’ we declined to hold that materials outside the complaint [or other paper] 6 | start the thirty-day clock.) (quoting Harris v. Bankers Life and Cas. CO., 425 F.3d 7 | 689, 695 (9th Cir. 2005)). This is simply the kind of case where defendant removed 8 || the case based on its knowledge “beyond the pleadings,” a removal that defendant was 9 | not “obligated” to file pursuant to one of the two 28 U.S.C. § 1446 deadlines, but a 10 || removal that defendant nonetheless “could” file. Kuxhausen, 707 F.3d at 1141 n.3 11 || (emphasis omitted). 12 | IN. CONCLUSION 13 For the foregoing reasons, the Court DENIES the Motion to Remand. The 14 | Court notes that this is the third denial in the Central District of California of this 15 | precise motion made by this counsel. See, e.g., Solis, 2024 WL 1311275 , at *2 16 | (denying a similar motion to remand brought by Plaintiff's same counsel); Vasquez, 17 | No. 2:24-cv-00302-GW-E, at 7 (C.D. Cal. March 7, 2024) (denying a similar motion 18 | to remand brought by Plaintiff's same counsel). It should be clear to counsel by now 19 | that this argument has no merit. [20] 21 IT IS SO ORDERED. _ 2 af (je 23 | Dated: May 29, 2024 HON. WESLEY L. HSU 05 UNITED STATES DISTRICT JUDGE