Michelle A. Reinglass, Esq. (SBN 86675)

John Y. Igarashi, Esq. (SBN 180118)

LAW OFFICES OF MICHELLE A. REINGLASS

23161 Mill Creek Drive, Suite 170

Laguna Hills, CA 92653

 

Tel: (949) 587-0460

Fax: (949) 587-1004

 

Attorneys for Plaintiff, SANDRA MACHUGA

 

 

 

 

                                  UNITED STATES DISTRICT COURT

 

CENTRAL DISTRICT OF CALIFORNIA

 

SANTA ANA BRANCH COURT

 

 

 

SANDRA MACHUGA,

 

 

                                 Plaintiff,

 

 

v.

 

 

ABC INCORPORATED, a California corporation; CHARLES WILLIAMS, and DOES 1-50, inclusive,

 

 

                                 Defendants.

 

 

 

 

 


 


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CASE NO. SACV 01-896 GLT (MLGx)

 

NOTICE OF MOTION AND MOTION FOR ORDER REMANDING CASE TO STATE COURT AND AWARDING COSTS AND ATTORNEYS’ FEES TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN Y. IGARASHI IN SUPPORT THEREOF

 

[ 28 U.S.C. Section 1447; FRCP 12(h)(3); CD CA Local Rules, Rule 7 ]

 

DATE: November 19, 2001

TIME: 10:00 a.m.

CTRM:10-D


 

           TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

           PLEASE TAKE NOTICE that, on November 19, 2001, at 10:00 a.m., or as soon thereafter as the matter can be heard in Department 10-D of the above-named court, located at 411 West Fourth Street, Santa Ana, California, Plaintiff Sandra Machuga will and hereby does move this Court for an order providing that the instant action be remanded back to state court, that defendants pay an award of attorneys’ fees and costs to

plaintiff in the amount of $1,560.00 or in an amount that the Court deems appropriate, and that the Clerk of the Court send a certified copy of the order to the clerk of the state court where the action was originally filed.

           This Motion will be based on this Notice, the Memorandum of Points and Authorities filed herewith, the accompanying Declaration of John Y. Igarashi, the complete files and records in this action, and all other matters and evidence that may be presented at the hearing on this motion.

 

DATED: October 25, 2001           LAW OFFICES OF MICHELLE A. REINGLASS

 

                                                       By:     _____________________________________

                                                                  John Y. Igarashi, Esq.

                                                                  Attorneys for Plaintiff, SANDRA MACHUGA

 

 


MEMORANDUM OF POINTS AND AUTHORITIES

1.        INTRODUCTION

           Plaintiff moves this Court for an order that: (1) the instant action be remanded back to state court, (2) defendants pay an award of attorneys’ fees and costs to plaintiff, in the amount of $1,560.00 or in an amount that the Court deems appropriate, and (3) the Clerk of the Court send a certified copy of the order to the clerk of the state court where the action was originally filed. Such an order is proper because diversity of citizenship does not exist between Plaintiff and all Defendants and this Court therefore lacks subject matter jurisdiction.

2.        STATEMENT OF FACTS

           As set forth in Plaintiff’s Complaint in this matter, Plaintiff began her employment with Defendant ABC Incorporated in March 1995 as the Assistant Manager of Security for the Defendant ABC’s West Coast operations. Defendants were aware at the time of her hire and thereafter of Plaintiff’s age and that Plaintiff is a woman. Furthermore, Plaintiff has been medically diagnosed and suffers from a gastrointestinal disorder. She disclosed that fact to both Defendants ABC and Williams at the time of her hire. Over the five years after her hire, as alleged more specifically within the Complaint, Plaintiff received no accommodation for her disability by ABC, despite repeated requests, and was harassed, retaliated against and ultimately terminated by Defendant Williams on the basis of her age, gender and physical condition.

3.        PROCEDURAL POSTURE

           Plaintiff filed the instant action in the Orange County Superior Court on July 30, 2001. The Complaint included claims for Employment Discrimination, Harassment and Retaliation - (Government Code Section 12940 et Seq.); Failure to Accommodate Disability (Government Code Section 12940(k)); Wrongful Termination in Violation of Public Policy; and Violation of Cal. Constitution Article 1 §8, against Defendants ABC Inc., Charles Williams, and DOES 1-50, inclusive. It is undisputed that Defendant Charles Williams is a resident of the State of California.

           On September 25, 2001, Defendants filed a “Notice of Removal of Civil Action Under 28 U.S.C., Section 1332, 1441(a) and (b) (DIVERSITY)” with this Court.

4.        FEDERAL AUTHORITY EXISTS FOR REMANDING THIS CASE TO STATE COURT

           Remand may be ordered either for lack of subject matter jurisdiction or for "any defect in the removal procedure." 28 U.S.C. Section 1447(c); see also Buckner v. FDIC, 981 F.2d 816, 820 (5th Cir. 1993).

           The claims in the Complaint against Defendant Williams are: [2nd CLAIM] Harassment on the Basis of Age, Gender and Physical Condition (Cal. Gov. Code, Section 12940, et Seq.); and [3rd CLAIM] Retaliation (Cal. Gov. Code, Section 12940, et Seq.). The Complaint properly alleged that Plaintiff began her employment with Defendant ABC Incorporated in March 1995 as the Assistant Manager of Security for the Defendant ABC’s West Coast operations. Complaint at Pages 2:24 through 3:1. Over the next five years, Plaintiff received no accommodation for her disability by ABC, despite repeated requests, and was harassed, retaliated against and ultimately terminated by Defendant Williams on the basis of her disability, age and gender. Specific instances of harassment and retaliation by Defendant are alleged within the Complaint at Pages 4:26 through 5:9, 5:12 through 5:16, and 5:22 through 6:2.

           It is well-settled that, under California law, supervisors, such as Defendant Williams, can be liable for harassment and retaliation. See Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 599-600, 605-606; See also Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1213. The Complaint properly alleges that Defendant Williams was Plaintiff’s supervisor. Complaint at Pages 2:26 through 3:1. However, Plaintiff invites the Court’s attention to the fact that, for actions filed on or after January 1, 2001, the legislature has made all employees, whether or not supervisorial, liable for their harassment and/or retaliatory actions. See Cal. Gov. Code, Section 12940(j)(3).

5.        THIS MOTION FOR REMAND TO STATE COURT IS TIMELY

           A defect in the Federal court's subject matter jurisdiction can be raised at any time, even on appeal. Int'l Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U.S. 72, 87 (1991); Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951); see also 28 U.S.C. Section 1447(c); FRCP 12(h)(3).

6.        THE BURDEN OF PROOF IS ON DEFENDANTS TO PROVE WHY THE CASE SHOULD NOT BE REMANDED TO STATE COURT

           Despite that Plaintiff brings the instant motion to remand, the burden of proof is on Defendants to prove the necessary elements of federal court jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The claims against Defendant Williams show that he is a legitimate defendant and Defendants fail in carrying their burden.

           If subject matter jurisdiction is clearly lacking, a court may remand an action back to state court sua sponte, without even permitting counsel to brief or argue the case. Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir. 1989)

7.        THE COURT SHOULD ORDER DEFENDANTS TO PAY PLAINTIFF’S COSTS AND ATTORNEYS’ FEES INCURRED IN MAKING THIS MOTION TO REMAND

           On granting a motion for remand, the federal court may order the defendant to pay Plaintiff its "just costs and actual expenses, including attorneys' fees, incurred as a result of the removal..." 28 U.S.C. Section 1447(c); See Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993). Because the statute unambiguously authorizes the award of attorneys' fees, no showing of bad faith on the part of the removing party is necessary to a fee award under Section 1447(c). Tenner v. Zurek, 168 F.3d 328, 329-330 (7th Cir. 1999); Suder v. Blue Circle, Inc., 116 F.3d 1351, 1352 (10th Cir. 1997); Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, 923-24 (2nd Cir. 1992).

8.        CONCLUSION

           Plaintiff requests that this Court order that: the instant action be remanded back to state court, that defendants pay an award of attorneys’ fees and costs to plaintiff in the amount of $1,560.00 or in an amount that the Court deems appropriate, that the Clerk of

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the Court send a certified copy of the order to the clerk of the state court where the action was originally filed.

 

 

DATED: October 25, 2001           LAW OFFICES OF MICHELLE A. REINGLASS

 

 

                                                       _____________________________________

                                                       John Y. Igarashi, Esq.

                                                       Attorneys for Plaintiff, SANDRA MACHUGA

 

 


DECLARATION OF JOHN Y. IGARASHI

           I, John Y. Igarashi, declare as follows:

           1.        I am an attorney duly licensed to practice law in the State of California and before this Court. I am an attorney with the Law Offices of Michelle A. Reinglass, attorneys of record for Plaintiff Sandra Machuga. I have personal knowledge of the matters stated herein and, if called upon to testify as a witness, could and would competently testify thereto.

           2.        This declaration is submitted in regard to attorneys’ fees and costs expended in preparing and filing the Motion to Remand, with which this Declaration is concurrently submitted.

           3.        I am informed and believe that Defendants had no reasonable basis for removing the case to federal court. I am informed and believe and it is undisputed by Defendants that Defendant Williams is a resident of the State of California. The bases of the claims against Defendant Williams were and are specified within the Complaint and are cognizable under California law.

           4.        As a result of the instant Motion, Plaintiff Sandra Machuga has incurred and will incur reasonable costs and attorneys' fees in connection with this motion and the hearing thereon. I have expended four hours in review of the file, in research of applicable federal and state law, in preparation of the notice of motion, the motion, the memorandum of points and authorities and this declaration. I anticipate two hours to prepare a reply and two hours to prepare for and attend the hearing on this motion. I have practiced business, commercial and employment litigation in Orange County, California for nearly six years. My hourly rate is $195.00, which is reasonable for like services in

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the community in which I practice. The total attorneys’ fees and costs expended, including those anticipated, will be $1,560.00.

 

           I declare under penalty of perjury of the laws of the State of California and the United States of America that there foregoing is true and correct. Executed at Laguna Hills, California.

 

Dated: October 25, 2001                           __________________________________

                                                                                        John Y. Igarashi

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Michelle A. Reinglass, Esq. (SBN 86675)

John Y. Igarashi, Esq. (SBN 180118)

LAW OFFICES OF MICHELLE A. REINGLASS

23161 Mill Creek Drive, Suite 170

Laguna Hills, CA 92653

 

Tel: (949) 587-0460

Fax: (949) 587-1004

 

 

Attorneys for Plaintiff, SANDRA MACHUGA

 

 

                                  UNITED STATES DISTRICT COURT

 

CENTRAL DISTRICT OF CALIFORNIA

 

SANTA ANA BRANCH COURT

 

 

 

SANDRA MACHUGA,

 

 

                                 Plaintiff,

 

 

v.

 

 

ABC INCORPORATED, a California corporation; CHARLES WILLIAMS, and DOES 1-50, inclusive,

 

 

                                 Defendants.

 

 

 

 

 


 


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CASE NO. SACV 01-896 GLT (MLGx)

 

BRIEF RE INDIVIDUAL LIABILITY AGAINST DEFENDANT CHARLES WILLIAMS; AND DECLARATION OF SANDRA MACHUGA IN SUPPORT THEREOF

 

DATE: December 10, 2001

TIME: 10:00 a.m.

CTRM:10-D


1.        CALIFORNIA LAW PROVIDES FOR INDIVIDUAL LIABILITY AGAINST DEFENDANT WILLIAMS’ FOR HARASSMENT

           Defendant’s authority that co-workers cannot be held liable for their harassment applies only to non-supervisorial employees. As cited in the underlying Motion to Remand, the legislature has reaffirmed its intention to hold all employees liable for their harassing behavior.

 

           California courts have long held that supervisory employees can be held individually liable for their harassment and that, for complaints filed after January 1, 2001, the legislature has made it clear that all employees, whether or not supervisorial, can be held liable for harassing behavior. It is undisputed that Defendant is a supervisorial employee.

           The Reno case also yielded a very limited holding: that "individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts," Reno v. Baird (1998) 18 Cal.4th 640, 663. The California Supreme Court was careful to distinguish between discrimination and harassment. Quoting the Janken case (cited by Defendants), the Reno court instructed that, "the Legislature's differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor's job performance * * * ."

           In the instant case, Plaintiff has not alleged that routine personnel decisions like hiring, firing and performance evaluations constituted the harassment by Defendant Williams, but that Defendant unnecessarily and maliciously berated her based upon age, gender and medical disability. See Declaration of Sandra Machuga, submitted herewith. This is different in kind from a poor performance evaluation and unnecessary to Defendant Williams’ job performance.

           Courts have adopted a common sense rule that sometimes otherwise innocuous behavior when done in a particular manner and with particular focus to another employee will constitute harassing behavior. Birschtein v. New United Manufacturing, Inc., Appeal No. A090680 (Cal. 1st Dist. C. A., October 9, 2001). Malicious berating, etc., Complaint at Para. 9, done only to one employee on the basis of age, gender and medical disorder, while not to others, is not necessary to the performance of a supervisor's job duties. This is especially evident when the medical disorder was a gastrointestinal disorder, of which the supervisor was aware, Complaint at Para. 8, that would be exacerbated by exactly that kind of behavior.  

2.        IN ADDITION TO PERSONAL LIABILITY FOR HARASSMENT, DEFENDANT WILLIAMS CAN ALSO BE HELD INDIVIDUALLY LIABLE FOR RETALIATION

           In Peterson v. Santa Clara Valley Medical Center ( U.S.D.C. N.D. Cal. 2000) 2000 Daily Journal D.A.R. 1649, ___, Defendants argued that “Defendants... cannot be held personally liable under FEHA for retaliation.” The Court instructed that, “ [i]n Page v. Superior Court, 31 Cal.App.4th 1206, 37 Cal.Rptr.2d 529 (1995), the court held that supervisors can be held individually liable for claims of retaliation.” (Emphasis added.) In doing so, the Court rejected Defendants’ argument that the holding in Page had been eroded by Reno v. Baird (1998) 18 Cal.4th 640, 76 Cal.Rptr.2d 499:

FEHA authorizes civil liability against a "person." As previously stated, FEHA defines "person" as "one or more individuals, partnerships, associations, corporations, ... legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries." Cal. Govt.Code § 12925(d). Further, the enforcement provisions of FEHA consistently include a "person" among those who may be accused in a FEHA action. See Page, 31 Cal.App.4th at 1211-1212. Applying the "ordinary meaning" of the terms "person," and "individual," the Court finds that the California Legislature intended to impose personal liability against supervisors. Id.; see also Liberto-Blanck v. City of Arroyo Grande, 33 F.Supp.2d 1241, 1243 (C.D.Cal.1999); Soo v. UPS, Inc.,--F.Supp.2d -, 1999 WL 956487 (N.D.Cal.1999); Kaminski v. Target Stores, 1998 WL 575097 (N.D.Cal.1998). Further, an interpretation of FEHA which imposes personal liability on supervisors who engage in retaliation is consistent with the California Legislature's statement of policy underlying FEHA. Page, 31 Cal.App.4th at 1213.

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           In the instant case, Plaintiff and Plaintiff’s doctor advised Williams and ABC that Plaintiff’s disability required leave and an adjustment of work duties. Williams refused to engage in a good faith interactive process and then chastised and terminated Plaintiff on the basis of her absences and disability. See Declaration of Sandra Machuga, submitted concurrently herewith. Defendant Williams should be held liable for his acts of retaliation.

3.        THE COURT SHOULD CONSTRUE ANY EVIDENTIARY DOUBTS IN FAVOR OF PLAINTIFF

           In Aman v. Cort Furniture Rental Corp. (3rd Cir. 1996) 85 F.3d 1074, 1081-2, the Third Circuit Court of Appeals aptly noted that evidence of discrimination (of which harassment and retaliation are two species) has grown more subtle and therefore courts should view evidence with this fact in mind:

Discrimination continues to pollute the social and economic mainstream of American life, and is often simply masked in more subtle forms. It has become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality discriminatory behavior. In other words, while discriminatory conduct persists, violators have learned not to leave the proverbial "smoking gun" behind. As one court has recognized, "[d]efendants of even minimal sophistication will neither admit discriminatory animus or leave a paper trail demonstrating it." Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir.1987). But regardless of the form that discrimination takes, the impermissible impact remains the same, and the law's prohibition remains unchanged. "Title VII tolerates no racial discrimination, subtle or otherwise." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). * * * The sophisticated would-be violator has made our job a little more difficult.

Aman v. Cort Furniture Rental Corp. (3rd Cir. 1996) 85 F.3d 1074, 1081-2.

           As set forth in the underlying Motion to Remand, Federal policy favors construing removal statutes strictly and in favor of remand to state court. Steward v. Garrett, 935 F.Supp. 849 (E.D. La.1996).

4.        CONCLUSION

           For the foregoing reasons, Plaintiff’s Motion to Remand should be granted.

 

DATED: November 26, 2001       LAW OFFICES OF MICHELLE A. REINGLASS

 

 

 

                                            By:     _____________________________________

                                                       John Y. Igarashi, Esq.

                                                       Attorneys for Plaintiff, SANDRA MACHUGA