Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLIE SCOLLARD, Case No.: 26-CV-1198 JLS (SBC)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION TO REMAND 14 COSTCO WHOLESALE, et al., (ECF No. 5) 15 Defendants. 16 17 Presently before the Court is Plaintiff Charlie Scollard’s Motion to Remand (“Mot.,” 18 ECF No. 5), as well as Defendant Costco Wholesale’s Opposition (“Opp’n,” ECF No. 8). 19 The Court vacated the hearing on this matter and took them under submission on the papers 20 without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 9. 21 Having carefully considered the Parties’ arguments and facts in the record, the Court 22 GRANTS Plaintiff’s Motion. 23 BACKGROUND 24 This case arises from a February 1, 2024, incident in which Plaintiff alleges he 25 slipped and fell at a Costco retail location. ECF No. 1, Ex. A, at 7. Plaintiff filed the 26 action in California Superior Court on December 23, 2024. Id. Plaintiff named 27 Defendant Costco Wholesale, two employees of Costco, Lisa Balderamma and Ryan 28 Jozsa, and twenty Doe employees of Costco as separate defendants. Id. After the 1 Superior Court sustained a demurrer to the complaint, Plaintiff filed and served his first 2 amended complaint, adding employee Gerry Fuentes as a named defendant. ECF No. 1, 3 Ex. D, at 2. On February 20, 2026, the Superior Court sustained a demurrer to the first 4 amended complaint as to the causes of action against the named Costco employees, 5 leaving Costco as the only named defendant. Notice of Removal, ECF No. 1, at 3. 6 Four days later, on February 24, 2026, Defendant Costco removed the action to 7 this Court based on diversity jurisdiction. Id. at 1. Defendant noted that Plaintiff is a 8 citizen of the State of California while Defendant Costco is a corporate citizen of the 9 State of Washington. See id. at 6–8. Although the notice of removal was filed more than 10 one year after the action commenced, Defendant alleged that Plaintiff acted in bad faith 11 by refusing to dismiss Defendants Balderamma, Jozsa, and Fuentes, all citizens of 12 California. See id. at 5–6. 13 On March 10, 2026, Plaintiff filed the present Motion. See generally Mot. 14 Plaintiff argues that Defendant cannot establish Plaintiff’s bad faith and therefore 15 removal was untimely. Defendant filed an Opposition arguing Plaintiff acted in bad faith 16 by refusing to dismiss the individual defendants after two meetings between counsel. 17 Opp’n at 6. 18 LEGAL STANDARD 19 District courts shall have original jurisdiction over any civil action in which the 20 parties are citizens of difference states, and the a amount in controversy exceeds $75,000. 21 28 U.S.C. § 1332. The defendant removing the case to federal court bears the burden of 22 establishing the jurisdictional facts, namely the amount in controversy and complete 23 diversity of the parties. Abrego Abrego v. Dow Chemical Co., 443 F.3d 676, 682–83 (9th 24 Cir. 2006). However, a case may not be removed under diversity jurisdiction “more than 25 1 year after commencement of the action, unless the district court finds that the plaintiff 26 has acted in bad faith in order to prevent a defendant from removing the action.” 28 27 U.S.C. § 1446(c)(1). Absent bad faith, the Court must remand if removal was untimely. 28 Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1212 (9th Cir. 1980). 1 The Ninth Circuit has yet to address the applicable standard for the bad faith 2 exception under § 1446(c). Kalfsbeek Charter v. FCA US, LLC, 540 F. Supp. 3d 939, 3 943 (C.D. Cal. 2021). “It is well established that the plaintiff is ‘master of her complaint’ 4 and can plead to avoid federal jurisdiction.’” Id. (quoting Lowdermilk v. U.S. Bank Nat’l 5 Ass’n, 479 F.3d 994, 999 (9th Cir. 2007), overruled on other grounds by Rodriguez v. AT 6 & T Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir. 2013)). Therefore, district courts in 7 this jurisdiction have found that the bad faith requirement “sets a high threshold.” Torres 8 v. Honeywell, Inc., No. 2:20-cv-10879-RGK-KS, 2021 WL 259439, at *2–3 (C.D. Cal. 9 Jan. 25, 2021) (quoting NKD Diversified Enters., Inc. v. First Mercury Ins. Co., No. 1:14- 10 cv-00183-AWI-SAB, 2014 WL 1671659, at *3 (E.D. Cal. Apr. 28, 2014)). 11 Both parties ask this Court to apply the standard articulated in Kalfsbeek. 540 F. 12 Supp. 3d 939 at 943. “In determining whether a plaintiff acted in bad faith, district 13 ‘courts have considered the timing of naming and dismissing the non-diverse defendant, 14 the explanation given for dismissal, and whether the plaintiff actively litigated the case in 15 “any capacity” against a non-diverse defendant before dismissal.’” Id. (quoting Torres, 16 2021 WL 259439, at *3). “Determining whether a plaintiff has acted in bad faith to 17 prevent removal necessarily involves looking into the plaintiff’s subjective intent, as the 18 text of section 1466(c)(1) ‘strongly suggest[s] intentionality and purpose.’” Id. (quoting 19 Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d 1225, 1266 (D.N.M. 2014)). 20 ANALYSIS 21 The Parties agree that (1) Plaintiff and Defendant are diverse; (2) under diversity 22 jurisdiction, the case became removable on February 20; (3) the notice of removal was 23 filed less than thirty days thereafter; and (4) the notice of removal was filed more than 24 one year after the commencement of the action. See generally Notice; Mot.; Opp’n. 25 Therefore, the removal is untimely unless Defendant can establish that Plaintiff acted in 26 bad faith to prevent earlier removal. The Court finds that Plaintiff’s conduct does not rise 27 to the level of bad faith. 28 / / / 1 First, the Court finds the timing of naming the non-diverse defendants weighs 2 against bad faith. Plaintiff named two employees at the outset of the case. Compare, 3 Kalfsbeek, 540 F. Supp. 3d at 944 and Turner v. CH Robinson Co., Inc., 2025 WL 4 2778497, at *3 (C.D. Cal. Sept. 30, 2025) with Kite v. Richard Wolf Med. Instruments 5 Corp., 761 F. Supp. 597, 600 (S.D. Ind. 1989) (denying a motion to remand under the 6 previous statute when the plaintiff added the diversity-destroying defendant in response 7 to removal). Although Mr. Fuentes was named later, Defendant does not argue this was 8 done in response to the threat of removal. 9 Second, the Court finds the timing of dismissal weighs slightly against bad faith. In 10 the context of the one-year limitation, the state court sustained the demurrer as to the claims 11 against the non-diverse defendants on February 20, 2026, almost fourteen months after the 12 action commenced. Although dismissal days after the one-year limitation can be indicative 13 of bad faith, Kalfsbeek, 540 F. Supp. 3d at 943–44, a delay of months is more likely 14 acceptable, NKD Diversified Enters., 2014 WL 1671659, at *5) (finding that dismissal four 15 months after the one-year limitation did not demonstrate bad faith). 16 Additionally, the timing of dismissal in the context of the litigation process weighs 17 against bad faith. In Turner, the court emphasized that the non-diverse defendant’s 18 dismissal came “on the heels of his deposition, which [the plaintiff] abruptly ended early, 19 and two weeks before [the plaintiff’s] opposition to [the defendant’s] Motion for Summary 20 Judgment was due.” 2025 WL 2778497, at *3. Here, in contrast, the involuntary dismissal 21 of the non-diverse defendants resulted from an actively litigated demurrer to the amended 22 complaint which is indicative of Plaintiff’s good faith belief not tactical gamesmanship. 23 Third, the explanation for dismissal weighs heavily against bad faith. Plaintiff’s 24 explanation for the non-diverse defendants’ dismissal is reasonable—they were 25 involuntarily dismissed by the state court in ruling on the demurrer to the first amended 26 complaint. Mot. at 12. Defendant argues that Plaintiff acted in bad faith by “refusing to 27 dismiss the individual defendants after defense counsel met and conferred twice” and 28 “[d]efense counsel . . . filed two demurrers.” Opp’n at 6. The Court disagrees. California 1 law requires the parties to meet and confer prior to filing any demurrer. See Cal. Civ. Proc. 2 Code § 430.41. It is not categorically bad faith when parties attempt to resolve a legal 3 disagreement and fail to do so. 4 And more specifically, the Court need not relitigate the merits of the demurrer to 5 resolve this motion. See Somera Capital Mgmt., LLC v. Twin City Fire Ins. Co., No. CV 6 20-4277-DMG (MRWx), 2020 WL 3497400, at *2 (C.D. Cal. June 29, 2020). Although 7 the Superior Court confirmed Defendant’s position regarding the sufficiency of these 8 specific negligence claims against the individual defendants, Plaintiff’s argument was 9 legally viable. Kalfsbeek, 540 F. Supp. 3d at 944. Employees of retail owners may be 10 liable for torts against customers. See, e.g., Hassaine v. Club Demonstration Servs., Inc., 11 77 Cal. App. 5th 843, 853 (2022) (finding a contractor owed shoppers a duty of reasonable 12 care to provide a safe shopping facility); Dominguez v. Costco Wholesale Corp., E076064, 13 2022 WL 1498342, at *1 (Cal. Ct. App. May 12, 2022) (acknowledging the defendant 14 manager in dicta). Absent bad faith, Plaintiff was well within his rights to maintain a non- 15 frivolous argument against non-diverse defendants until an adverse ruling from Superior 16 Court. 17 Finally, active litigation against the non-diverse defendants weighs against bad faith. 18 Engaging in discovery from a defendant will usually satisfy the active litigation factor. 19 Aguayo, 59 F. Supp. 3d at 1275. But the “plaintiff can satisfy the standard even if he or 20 she did not take discovery if he or she engaged in any other form of active litigation.” Id. 21 It is possible that Plaintiff did not depose any individual defendants before October 22 2025 because Plaintiff only joined the defendants to prevent removal. Plaintiff conducted 23 discovery against Defendant Costco between March 20, 2025, and June 20, 2025. Mot. at 24 2–3. It was not until October 3, 2025, that Plaintiff attempted to depose any of the 25 individual defendants. Mot. at 6 (“Plaintiff served a deposition notice scheduling Mr. 26 Fuentes’ deposition on October 15, 2025). Plaintiff does not allege any attempt to depose 27 either Ms. Balderamma or Mr. Jozsa while either demurrer was pending. 28 / / / 1 However, it is equally likely that Plaintiff made the strategic decision to focus 2 || discovery on the primary defendant and, once Defendant’s first demurrer was sustained, to 3 || focus on amending the complaint and arguing against the second demurrer. See Heacock, 4 ||2026 WL 4009849, at *4 (noting that while plaintiff's discovery practice suggests one of 5 || the defendants was the primary defendant and plaintiff may have been motivated in part by 6 ||a desire to stay in state court, the minimal discovery efforts prevented a finding of bad 7 || faith). In California state court, plaintiffs may begin discovery ten days after service of 8 |fsummons. See, e.g., Cal. Civ. Proc. Code § 2030.020. Discovery generally ends on or 9 || before the thirtieth day before the date initially set for trial. Jd. § 2024.030. Therefore, 10 || Plaintiff had time to conduct discovery until August 21,2026. Accordingly, Defendant has 11 ||not met the “strict standard” that is satisfied “when a plaintiff failed to actively litigate a 12 claim against a defendant in any capacity.” Kalfsbeek, 540 F. Supp. 3d at 945 (quoting 13 || Heacock, 2016 WL 4009849, at *3). 14 Defendant has not overcome its burden of demonstrating Plaintiff acted in bad faith, 15 ||particularly given the strong presumption against removal. /d. (citing NKD Diversified 16 || Enters., 2014 WL 1671659, at *3-4). Therefore, the removal of the case is barred by the 17 || one-year limitation. 18 CONCLUSION 19 In light of the foregoing, the Court GRANTS Plaintiffs’ Motion (ECF No. 5) and 20 |} REMANDS this action to the Superior Court for the State of California, County of San 21 ||Diego. As this concludes the litigation in this matter, the Clerk of the Court SHALL 22 CLOSE the file. 23 IT IS SO ORDERED. 24 ||Dated: September 24, 2026 ot 25 pon Janis L. Sammartino 46 United States District Judge 27 28