ANGELIQUE KENNEY v. PALOMAR HEALTH et. al
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court considered Plaintiff's motion for attorney fees following the court's grant of a motion to remand a state sexual assault case to state court. The court denied the motion, finding that the defendants' removal was objectively reasonable because the legal theory that state claims required interpretation of federal VAWA requirements had not been clearly foreclosed by case law.
| What the court decided | The model |
|---|---|
Denial of Plaintiff's Motion for Attorney Fees“Therefore, the Court finds that Defendant’s removal was objectively reasonable and DENIES Plaintiff's request for attorney's fees. (ECF No. 16.)” | agree with court The court correctly applied the standard from Patel v. Del Taco, Inc. and Lussier v. Dollar Tree Stores, Inc., which hold that fees under 28 U.S.C. § 1447 are only appropriate when there is no objectively reasonable basis for removal. The court found that because the Ninth Circuit had not explicitly rejected the defendants' theory that the state claims required interpretation of federal VAWA, the removal was not clearly foreclosed and thus objectively reasonable. This follows the logic of the cited authorities. |
The order itself: sound — The order applies the correct legal standard for awarding fees under 28 U.S.C. § 1447 and correctly cites Ninth Circuit precedent defining 'objectively reasonable' removal. The court's analysis that the defendants' theory was not 'clearly foreclosed' because the Ninth Circuit had not explicitly adopted or rejected the specific VAWA interpretation is consistent with the cited case law. The reasoning is concise but sufficient to support the denial.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANGELIQUE KENNEY, Case No. 25-cv-03147-BAS-AHG 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR ATTORNEY FEES (ECF No. 16) 14 PALOMAR HEALTH et. al, 15 Defendants. 16 17 For the reasons discussed below, the Court DENIES Plaintiff’s motion for attorney 18 fees. (ECF No. 16.) 19 On September 24, 2025, Plaintiff filed a complaint against Defendants Palomar 20 Health, Matthew Cote, and Palomar Emergency Physicians, Inc. (“Defendants”) in the 21 Superior Court of California, County of San Diego on September 24, 2025, raising causes 22 of action for: (1) negligence per se based on the California Penal Code §§ 13823.5– 23 13823.95; (2) unfair competition law (Cal. Bus. & Prof. Code § 17200); (3) failure to train 24 or supervise under California’s Sexual Assault Response Team (“SART”) Program 25 (California Penal Code §§ 13898 et. seq). (See ECF No. 1-2 ¶¶ 39–56.) On November 13, 26 2025, Defendants removed the state action to this Court. (ECF No. 1.) Plaintiff filed a 27 motion to remand. (ECF No. 6.) The Court granted Plaintiff’s motion to remand. (ECF 28 No. 15.) Plaintiff now moves for attorney fees. (ECF No. 16.) 1 28 U.S.C. § 1447 provides: “An order remanding the case may require payment of 2 just costs and any actual expenses, including attorney fees, incurred as a result of the 3 removal.” An award of attorneys' fees pursuant to 28 U.S.C. § 1447 is proper where there 4 is no objectively reasonable basis for removing the action. See Patel v. Del Taco, Inc., 446 5 F.3d 996, 999 (9th Cir. 2006) (finding defendants “had no objectively reasonable basis for 6 removal” and that “the district court did not abuse its discretion in awarding attorney's fees 7 under § 1447” to the plaintiff where the defendants removed the state court action under 8 28 U.S.C. § 1443 but the defendants “point to no formal expression of state law that 9 prohibits them from enforcing their civil rights in state court nor do they point to anything 10 that suggests that the state court would not enforce their civil rights in the state court 11 proceedings.”). 12 Removal is objectively reasonable where the relevant case law does not clearly 13 foreclose the defendant's basis of removal. Lussier v. Dollar Tree Stores, Inc., 518 F.3d 14 1062, 1066 (9th Cir. 2008). Here, Defendants removed the case based on their belief 15 Plaintiffs’ state law claims presented federal issues that fell within this Court’s jurisdiction. 16 (ECF No. 8.) More specifically, Defendants alleged Plaintiff’s claims would require the 17 interpretation of federal law because the relevant California state law requirements for 18 forensic sexual assault examinations were enacted to implement the federal Violence 19 Against Women Act’s (“VAWA”) forensic funding requirements. (ECF No. 8 at 3:20-28.) 20 While the Ninth Circuit has not explicitly adopted Defendants’ interpretation that 21 Plaintiff’s state law claims in this action require interpreting VAWA, Defendants’ theory 22 has not been clearly foreclosed upon either. See Tyson v. Fife, No. 2:18-CV-0028-GMN- 23 NJK, 2018 WL 3377085, at *4 (D. Nev. July 11, 2018) (finding the same where defendants 24 attempted removal to federal court based on a theory of fraudulent misjoinder that has only 25 been discussed in an unpublished Ninth Circuit opinion); see also Franchise Tax Bd. of 26 State of Cal. v. Constr. Laborers Vacation Tr. for S. California, 463 U.S. 1, 9 (1983) 27 (removal is proper “where the vindication of a right under state law necessarily turn[s] on 28 some construction of federal law.”)(emphasis added). 1 Therefore, the Court finds that Defendant’s removal was objectively reasonable and 2 || DENIES Plaintiff's request for attorney's fees. (ECF No. 16.) 3 IT IS SO ORDERED. 4 ~ 5 DATED: March 6, 2026 (yatta Baphar □□ 6 H n. Cynthia Bashant, Chief Judge United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48