Lina Noory v. Camden Development, Inc. ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 LINA NOORY, Case No. CV 20-01767-AB (GJSx) 13 Plaintiff, v. ORDER DENYING PLAINTIFF’S 14 MOTION FOR REMAND AND CAMDEN DEVELOPMENT, INC.; REQUEST FOR JUST COSTS 15 AND DOES 1 – 5, AND ACTUAL EXPENSES 16 Defendants. 17 18 Before the Court is Plaintiff Lina Noory’s (“Plaintiff”) Motion for Remand. 19 (“Motion,” Dkt. No. 12.) For the following reasons, the Court DENIES the Motion. 20 I. BACKGROUND 21 On November 18, 2019, Plaintiff filed her Complaint (“Compl.”) in state court 22 alleging ten causes of action stemming from toxic mold in her apartment at the 23 property Defendant owned.1 See Compl. (Dkt. No. 1-2). On December 20, 2019, 24 25 1 The causes of action are: (1) Breach of implied warranty of habitability, (2) premises 26 liability, (3) negligence, (4) nuisance, (5) breach of contract, (6) breach of covenant of 27 good faith and fair dealing, (7) breach of covenant of quiet enjoyment, (8) negligent misrepresentation, (9) intentional misrepresentation, (10) violation of business and 28 professions code section 17200, et seq. (unfair competition). 1 Defendant made an appearance through counsel stating in a declaration that it needed 2 more time to file a demurrer. Defendant filed a demurrer and motion to strike in state 3 court on January 22, 2020. Two days later, Defendant served Plaintiff with a request 4 for Statement of Damages. On February 03, 2020, Plaintiff informed Defendant that 5 her damages totaled $4,750,000. On February 24, 2020, Defendant removed based on 6 diversity jurisdiction. 7 Plaintiff argues that Defendant’s removal was untimely because the amount in 8 controversy was obvious from the face of the Complaint and Defendant removed more 9 than 30 days after the Complaint was filed. Defendant responds that the amount in 10 controversy was not apparent from the face of the Complaint and was not apparent 11 until Defendant received Plaintiff’s Statement of Damages, after which it timely 12 removed. 13 After reviewing the law and the parties’ submissions, the Court overrules 14 Plaintiff’s timeliness objection and denies the Motion for Remand. 15 II. LEGAL STANDARD 16 A case filed in state court may be removed to federal court if the federal court 17 would have had original jurisdiction over the matter. 28 U.S.C. § 1441(a). A 18 defendant must remove a case within thirty days of receiving a copy of the complaint, 19 or if the matter is not removable based on the complaint, within thirty days of 20 receiving “an amended pleading, motion, order or other paper from which it may be 21 ascertained that the case is one which is or has become removable.” 28 U.S.C. 22 1446(b)(3). 23 The first thirty-day period begins when the defendant receives an “initial 24 pleading” that reveals a basis for removal. 28 U.S.C. § 1446(b)(1). This period only 25 applies if the initial pleadings statement of the case shows that it is removable on its 26 face. Harris v. Bankers Life & Cas Co., 425 F.3d 689, 694 (9th Cir. 2005). This is 27 determined by looking at the contents of “the four corners of applicable pleadings, not 28 1 through subjective knowledge or a duty to make further inquiry.” Harris, 425 F.3d at 2 694. 3 If the initial pleading does not show a ground for removal on its face, the 4 second thirty-day period begins when the defendant receives “an amended pleading, 5 motion, order or other paper” that shows from the face of the document that removal 6 is proper. 28 U.S.C. § 1446(b)(3); Harris, 425 F.3d at 694. If federal jurisdiction is 7 based on diversity jurisdiction, the case must be removed within one year of the case 8 being filed. 28 U.S.C. 1446(c)(1). III. DISCUSSION 9 10 A. Pre-Suit Papers Do Not Trigger The Second Thirty-Day Window To 11 Remove. 12 The Court must first address threshold questions of what puts Defendants on 13 notice that the amount in controversy is satisfied for removal. Plaintiff asserts that a 14 settlement demand sent on August 21, 2019 put Defendant on notice that the amount 15 in controversy was met for removal. See Reply (Dkt. No. 19), p. 4.2 First, Plaintiff is 16 vague about whether she sent her settlement demand to Defendant, or to Defendant’s 17 insurer, and, if the latter, whether that constitutes notice to Defendant. But it doesn’t 18 make a difference, because a pre-complaint document does not start the time to 19 remove. The Ninth Circuit has held that “document[s] received prior to the receipt of 20 the initial pleading cannot trigger the second thirty-day removal period” while 21 rejecting the idea that “a pre-complaint document containing a jurisdictional clue can 22 operate in tandem with an indeterminate initial pleading to trigger some kind of hybrid 23 of the first and second removal periods.” Carvalho v. Equifax Infor Servs., LLC, 629 24 F.3d 876, 886 (9th Cir. 2010). 25 Accordingly the Court will not consider Plaintiff’s pre-suit settlement demand 26 to determine when this case was removable. 27 28 2 Plaintiffs reply was untimely but the Court has considered it. 1 B. Removability Was Not Evident From the Face of the Complaint. 2 Plaintiff argues that the first thirty-day window to remove was triggered by the 3 filing of her Complaint. Plaintiff asserts that while the Complaint does not state any 4 specific amount of monetary damages it was clear from the face of the Complaint that 5 the amount in controversy exceeded $75,000. She asserts that her Complaint alleges 6 in “great detail – the significant personal injuries, property damage, and lost income 7 that Plaintiff sustained because of [Defendant’s] misconduct. . . [while also] seek[ing] 8 punitive damages and contractual attorneys’ fees.” Mot. 6:12-15. The Court does not 9 agree with Plaintiff’s characterizations of her Complaint. The relevant portions are as 10 follows: 11 • On May 18, 2019 Plaintiff again told Defendant the problem was not fixed after 12 they had spent the better part of a week going in and out of her apartment. 13 “Defendants replied with a blatant falsehood, stating that this was the first time 14 they were hearing of any work that needed to be performed[.]” (Compl. ¶ 15.) 15 • Plaintiff had to hire independent mold inspectors. (Id. ¶ 17.) 16 • Plaintiff began to suffer migraines, rhinorrhea, dysphonia, and a high level of 17 immunoglobulin (indicating she is fighting an infection from mold). (Id. ¶ 21.) 18 • Plaintiff has a cyst on her throat that will have to be removed surgically, and 19 she has begun seeing a voice coach and a therapist for increased anxiety (that 20 Plaintiff admits was already present before the mold). (Id. ¶ 22.)3 21 • Plaintiff was forced to decline “invitations to host television shows and could 22 not post to her social media for 3 months until her voice recuperated to an 23 acceptable level.” Loss of income has further increased her anxiety. (Id. ¶ 23.) 24 • The mold/ mildew outbreak in Plaintiff’s closet has “destroyed and/or rendered 25 unusable much of her clothes and furniture.” (Id. ¶ 24.) 26 27 3 Plaintiff does not state whether this cyst appeared before or after the mold was said 28 to have been present. 1 • Because of living near the mold and being exposed to it Plaintiff has sustained 2 serious physical harm. As a consequence of the physical harm caused by the 3 conditions, Plaintiff has also sustained and continues to sustain emotional 4 distress, mental suffering, frustration, inconvenience and anxiety. (Id. ¶ 28.) 5 • Plaintiff has expended her “own funds to repair multiple items.” (Id. ¶ 37.) 6 • For nuisance, “Plaintiff is [] entitled to an award of punitive damages in an 7 amount appropriate to punish and make an example of Defendants.” (Id. ¶ 66.) 8 • Plaintiff suffered loss of use of the property for which she paid consideration. 9 (Id. ¶ 78.) 10 • Plaintiff is entitled to punitive damages for breach of covenant of quiet 11 enjoyment. (Id. ¶ 84.) 12 • Defendant’s agent made a false representation which entitled Plaintiff to 13 punitive damages for fraud. (Id. ¶ 85-105.) 14 • Plaintiff is entitled to reasonable costs and attorneys’ fees. (Id. ¶112.) 15 16 While these allegations list wide-ranging types of injuries, they fail to establish 17 that the amount in controversy is satisfied. Plaintiff’s characterizations of her injuries 18 does not provide any basis for quantifying the damages alleged, nor is it obvious from 19 Plaintiff’s injuries that the damages exceed $75,000. While Plaintiff contends she lost 20 3 months of wages, Defendant neither knew from the Complaint what Plaintiff’s 21 occupation is, nor what Plaintiff’s wages are. Whether the amount in controversy was 22 satisfied based on Plaintiff’s alleged injuries could only be a matter of speculation. 23 Given the fact that “notice of removability under § 1446(b) is determined through 24 examination of the four corners of the applicable pleadings, not through [the 25 defendant’s] subjective knowledge or a duty to make further inquiry,” Harris, 425 26 F.3d at 694, the Court concludes that the Complaint was not sufficient to give notice 27 of removability. Thus, the case did not become removable until Plaintiff served her 28 notice of damages on February 3, 2020 informing Defendant her damages totaled 1 | $4,750,000.00. Defendant removed by 30 days thereafter, so the removal was □□□□□□□□ 2 C. Defendant Did Not Waive Removal by Filing Documents in State Court 3 “A party, generally the defendant, may waive the right to remove to federal 4 | court where, after it is apparent that the case is removable, the defendant takes actions 5 | in state court that manifest his or her intent to have the matter adjudicated there, and to 6 | abandon his or her right to a federal forum.” Resolution Trust Corp. v. Bayside 7 | Developers, 43 F.3d 1230, 1240 (9th Cir. 1994), as amended (Jan. 20, 1995). Plaintiff 8 | argues that when Defendant filed a demurrer and motion to strike in state court 9 | Defendant waived removal because now they are trying for a “second bite at the apple 10 | in federal court” after realizing their motions would be denied. Mot. 8:2-5. The Court 11 | is not convinced. Defendant filed its motions before it was “apparent that the case 12 | [was] removable” and once Defendant was made aware that the case was removable, 13 | they timely removed it. Resolution Trust Corp., 43 F.3d at 1240. 14 IV. CONCLUSION 15 Plaintiffs Motion for Remand is DENIED. 16 IT IS SO ORDERED. 17 Dated: April 30, 2020 19 ANDRE BIROTTE JR. 0 UNITED STATES DISTRICT JUDGE 21 22 | 4 Plaintiff requests the Court take Judicial Notice of the fact that the Defendants are a 93 || “sophisticated company” with thousands of buildings across the United States. Plaintiff argues that Defendant should not be able to “feign ignorance” and should 24 | have been aware that the amount in controversy was satisfied from the face of the Complaint. (Motion at 5.) The Court DENIES the request. Defendant’s size is not 25 probative of the amount put in controversy by Plaintiff’s injuries. Furthermore, Plaintiff relies on 3 cases, all of which are just persuasive, that held Defendants should 26 have been aware the amount in controversy was met when the Complaints asserted 27 || injuries such as six days in the hospital, ambulance rides, and serious injury and wrongdoing among other things. Here, Plaintiff's Complaint does not assert injuries 28 | that are as obviously serious as the injuries in the cases Plaintiff cites. 6.