Removal to Federal Court

Cal. Super. - 6th Dist.September 8, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V370406 Santa Clara - Civil A. Flores: Electronically Filed CHRIS D. HUMPHREYS (SBN 174802) by Superior court of CA, chrls.humphreys@dentons.com cDENTONS US LLP ounty of Santa Clara, 4655 Executive Drive, Suite 700 0n 1_2/29/2020 12:18 PM San Diego, California 92121-3128 ReVIewed By: A. Floresca Telephone: (619) 236-1414 Case #20CV370406 Facsimile: (619) 232-8311 Envelope: 5545397 ALEXANDER B. GIRALDO (SBN 3 1 1012) alexander.giraldo@dentons.com DENTONS US LLP 601 South Figueroa Street, Suite 2500 Los Angeles, California 90017-5704 Telephone: (213) 623-9300 Facsimile: (213) 623-9924 Attorneys for Defendant ZURICH AMERICAN INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA SUTTER’S PLACE, INC., a California Case N0. 20CV370406 corporation, doing business as Bay 101 Casino, Hon. Maureen A. Folan, Department 6 Plaintiff, VS. NOTICE BY DEFENDANT ZURICH AMERICAN INSURANCE COMPANY ZURICH AMERICAN INSURANCE TO ADVERSE PARTY OF REMOVAL COMPANY, a New York corporation; and TO FEDERAL COURT PURSUANT TO DOES 1-25, inclusive, 28 U.S.C. §§ 1332, 1441 AND 1446 Defendants. Action Filed: September 8, 2020 TO PLAINTIFF AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant ZURICH AMERICAN INSURANCE COMPANY hereby files this Notice to Adverse Party of Removal to Federal Court. Pursuant to federal statute and the Federal Rules 0f Civil Procedure, Defendant has filed With the Clerk 0f the United States District Court for the Northern District 0f California, Notice 0f Removal of Action Pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, a copy ofWhich is attached hereto as Exhibit A, and that this action is removed t0 the United States District Court as of December 29, 2020. This Court is respectfully requested to proceed no further in this action 1 NOTICE BY DEFENDANT ZURICH AMERICAN INSURANCE COMPANY TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441 AND 144 flQUl-PWN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unless and until such time as this action may be remanded by order of the United States District Court. (See 28 U.s.c. § 1446(d).) Dated: December 29, 2020 116124176\V-1 DENTONS US LLP Chris D. Humphreys Alexander B. Giraldo By: V (Pf "Alexander B. Giraldo Attorneys for Defendant ZURICH AMERICAN INSURANCE COMPANY 2 NOTICE BY DEFENDANT ZURICH AMERICAN INSURANCE COMPANY TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441 AND 144 Exhibit A KOOOQQUI-bUJNH NNNNNNNNNHr-dr-AHr-dr-kr-r-tr-dH OOQO‘xUl-bUJNF-‘OKOOOQQUI-RUJNF-‘O Case 5:20-cv-09384 Document 1 Filed 12/29/20 Page 1 of 6 CHRIS D. HUMPHREYS (SBN 174802) chris.humphreys@dentons.com DENTONS US LLP 4655 Executive Drive, Suite 700 San Diego, California 92121-3 128 Telephone: (619) 236-1414 Facsimile: (619) 232-83 11 ALEXANDER B. GIRALDO (SBN 3 1 1012) alexander.giraldo@dentons.com DENTONS US LLP 601 South Figueroa Street, Suite 2500 Los Angeles, California 90017-5704 Telephone: (213) 623-9300 Facsimile: (213) 623-9924 Attorneys for Defendant ZURICH AMERICAN INSURANCE COMPANY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SUTTER’S PLACE, INC, a . Callforma corpqratlon, domg busmess as Bay 101 Casmo, Plaintiff, vs. ZURICH AMERICAN INSURANCE COMPANY, a New York corporation; and DOES 1-25, inclusive, Defendants. CASE NO. Santa Clara Count Su erior Court Case No. 20CV37 40 NOTICE OF REMOVAL TO FEDERAL COURT PURSUANT TO %§4%.S.C. SECTIONS 1332, 1441 AND TO THE HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE THAT NOTICE that Defendant ZURICH AMERICAN INSURANCE COMPANY (hereinafter “‘Defendant”) hereby files this Notice 0f Removal of the above-entitled action from the Superior Court of the State of California, Santa Clara County, to the United States District Court for the Northern Notice ofRemoval t0 Federal Court Pursuant 1 to 28 U.S.C. Sections 1332, 1441 and 1446 KOOOQOUI-RUJNH NNNNNNNNNHr-dr-AHr-dr-AHr-tr-dH OOQQUl-bUJNF-‘OKOOOQQUI-RUJNF-‘O Case 5:20-cv-09384 Document 1 Filed 12/29/20 Page 2 of 6 District 0f California, pursuant to 28 U.S.C. sections 1332, 1441 and 1446. In support of removal, Defendant respectfully offers the following. I. PRELIMINARY MATTERS 1. On 0r about September 8, 2020, Plaintiff Sutter Place, Inc. d/b/a Bay 101 Casino (hereinafter “Plaintiff”) filed this lawsuit, entitled SUTTER ’S PLACE INC, a California Corporation, doing business as Bay 101 Casino v. Zurich American Insurance Company, a New York Corporation; and Does [-25, inclusive, Case N0. 20CV370406, in the Superior Court 0f California, Santa Clara, against Defendant (hereinafter the “State Court Action”). A true and correct copy 0f the Complaint in the State Court Action is attached hereto as Exhibit A t0 Declaration 0f Alexander B. Girald0.1 2. On 0r about September 21, 2020, Defendant was served with a Summons and Complaint in the State Court Action. A true copy 0f the Summons in the State Court Action and Notice 0f Service of Process is attached as Exhibit B. 3. Exhibits A and B reflect a true and correct copies 0f all process, pleadings, and orders in the State Court Action that have been served upon Defendant, as required by 28 U.S.C. § 1446(a). 4. On 0r about October 21, 2020, Defendant filed an Answer in the State Court Action. A true copy 0f Defendant’s Answer filed in the State Court Action 0n is attached as Exhibit C. 5. Pursuant t0 28 U.S.C. §1446(b)(3), this Notice 0f Removal is filed Within thirty (30) days 0f receipt 0f “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one Which is or has become removable.” lGAlllcelxhibits referenced herein are attached t0 the Declaration of Alexander B. 1ra 0. Notice ofRemoval t0 Federal Court Pursuant 2 to 28 U.S.C. Sections 1332, 1441 and 1446 KOOOQOUI-RUJNH NNNNNNNNNHr-dr-AHr-tr-kr-r-tr-dH OOQQUl-bUJNF-‘OKOOOQQUI-RUJNi-‘O Case 5:20-cv-09384 Document 1 Filed 12/29/20 Page 3 0f 6 6. Written notice 0f the filing 0f this Notice 0f Removal Will be served upon Plaintiff’s counsel as required by 28 U.S.C. § 1446(d). 7. A copy 0f this Notice 0f Removal is being served upon Plaintiff” s counsel and is being filed contemporaneously With the Clerk of the Superior Court 0f California, County 0f Santa Clara, as required by 28 U.S.C. 1446(d). 8. Venue is proper under 28 U.S.C. § 1441(a) because the Santa Clara County Superior Court is located Within the Northern District 0f California, United States District Court. 9. As is set forth in detail below, the Court has jurisdiction pursuant t0 28 U.S.C. § 1332, because the true parties are completely diverse and the amount in controversy exceeds $75,000, exclusive of interest and costs. II. DIVERSITY OF CITIZENSHIP 10. Plaintiff is, and at all relevant times was, a California corporation. (See EXh. A, Complaint at 1] 17.) 11. Defendant is, and at all relevant times was, a New York corporation With its principal place 0f business in the State 0f Illinois. (See Exh. A, Complaint at 11 18; Giraldo Decl., at 1] 8.) Pursuant t0 28 U.S.C § 1332(c)(1), Defendant is a citizen of both Illinois and New York. 12. Does 1 through 25 are Wholly fictitious and are disregarded for purposes 0f removal. 13. Accordingly, complete diversity 0f citizenship existed between the parties at the time Plaintiff s Complaint was filed, and complete diversity 0f citizenship exists at the time 0f removal. III. AMOUNT IN CONTROVERSY 14. Plaintiff’s Complaint does not allege a specified amount 0f damages. (EXh. A, Plaintiff” s Complaint). Rather, the Complaint prays for an indeterminate Notice ofRemoval t0 Federal Court Pursuant 3 t0 28 U.S.C. Sections 1332, 1441 and 1446 KOOOQQUI-RUJNr-A NNNNNNNNNHr-dr-AHr-dr-AHr-tr-dH OOQQUl-bUJNF-‘OKOOOQQUI-RUJNF-‘O Case 5:20-cv-09384 Document 1 Filed 12/29/20 Page 4 of 6 amount 0f economic and consequential damages, prejudgment interest, attorney’s fees, costs 0f suit, and punitive damages. (Ibid.) 15. The first thirty-day period for removal in 28 U.S.C. §1446(b) only applies if the case stated by the initial pleading is removable on its face. Harris v. Bankers Life & Cas. C0,, 425 F.3d 689, 694 (9th Cir. 2005). A case is not removable Where the amount in controversy cannot be ascertained by the four corners 0f the pleading. (Ibid.) If on the face 0f the initial pleading a case is not removable, the defendant can file its notice 0f removal Within thirty (3 0) days after the defendant receives a copy 0f “an amended pleading, motion, order 0r other paper from Which it may first be ascertained that the case is one Which is or has become removable.” 28 U.S.C. §1446(b)(3). 16. The removing defendant bears the burden 0f proving removability by a preponderance 0f the evidence. See Sanchez v. Monumental Life Ins. C0., 102 F.3d 398, 404 (9th Cir.1996). T0 establish the amount in controversy for removal purposes, the removing defendant may rely on a party’s discovery responses. See, e.g., Thermark Holdings, Inc. v. Hartford Cas. Ins. C0., N0. CV 11-4819 PA (SHX), 2011 WL 13220739, at *2 (C.D. Cal. Aug. 15, 201 1); Serv. Eng’g Grp., Inc. v. Colony Nat’l Ins. Ca, N0. CV099045JFWFFMX, 2010 WL 11597567, at *2 (C.D. Cal. Jan. 21, 2010); Corbelle v. Sanyo Elec. Trading C0., N0. C-03-1509 EMC, 2003 WL 22682464, at *2 (N.D. Cal. NOV. 4, 2003). 17 . On October 2 1, 2020, Defendant propounded Requests for Admission, Set One, and Form Interrogatories, Set One, t0 Plaintiff. This discovery was tailored t0 ascertain the amount and value 0f Plaintiff s claimed damages, exclusive of interest and costs, for removal purposes. 18. On December 7, 2020, Plaintiff served verified responses t0 Defendant’s Requests for Admission, Set One. In its responses, Plaintiff admitted that the total amount of damages sought from Defendant in this action exclusive 0f interest and costs exceeds $75,000. A true and correct copy 0f Plaintiff” s Responses 4 Notice ofRemoval t0 Federal Court Pursuant t0 28 U.S.C. Sections 1332, 1441 and 1446 KOOOQQUI-RUJNr-A NNNNNNNNNr-r-tr-AHr-dr-AHr-tr-dH OOQQUl-bUJNF-‘OKOOOQQUI-RUJNF-‘O Case 5:20-cv-09384 Document 1 Filed 12/29/20 Page 5 0f 6 to Defendant’s Request for Admission, Set One, served 0n December 8, 2020, is attached as Exhibit D. 19. On December 8, 2020, Plaintiff served verified responses t0 Defendant’s Form Interrogatories, Set One. In its response t0 Form Interrogatory 9.1, Plaintiff disclosed that it is seeking $14,648,952.00 in damages for “Business Income Loss” against Defendant. A true and correct copy of Plaintiff s Responses t0 Defendant’s Form Interrogatories, Set One, served on December 8, 2020, is attached as Exhibit E. 20. Plaintiff’s verified discovery responses in the State Court Action show that the amount in controversy in this action exclusive 0f interest and costs exceeds $75,000. WHEREFORE, Defendant hereby respectfully requests that the State Court Action be removed t0 the United States District Court for the Northern District of California. Dated: December 29, 2020 Respectfully submitted, DENTONS US LLP Chris D. Humphreys Alexander B. Giraldo By: /S/Alexander B. Giraldo Alexander B. Giraldo Attorne s for Defendant ZURI AMERICAN INSURANCE COMPANY 116124175\V-1 Notice ofRemoval t0 Federal Court Pursuant 5 to 28 U.S.C. Sections 1332, 1441 and 1446 Case 5:20-cv-09384 Document 1 Filed 12/29/20 Page 6 of 6 PROOF OF SERVICE OF DOCUMENT | am over the age of 18 and not a party to this case. My business address is Suite 2500, 601 South Figueroa Street, Los Angeles, California 90017-5704. A true and correct copy of the document, entitled NOTICE OF REMOVAL TO FEDERAL COURT PURSUANT TO 28 U.S.C. SECTIONS 1332, 1441 AND 1446. was served in the manner stated below. 1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General Orders and Local Rules, the foregoing document will be served by the court via NEF & hyperlink to the document. On December 29 M, | checked the CM/ECF docket for this case and determined that the following person/s is/are on the Electronic Mail Notice List to receive NEF transmission at the email address/es stated below. 2. SERVED BY UNIIEDSIAIES-MAILSJQR DIRECT EMAIL. On December 29 2020, | sewed the following persons and/or entities at the last known addresses'In this case - v - Listing the judge here constitutes a declaration that mailing to the judge will be comgleted no later than 24 hours after the document'Is filed. Michael J. Bidart #060582 Counsel for Plaintiff Ricardo Echeverria #166049 T: 909 621 4935/ F: 909 625 6915 Shernoff Bidart Echeverria LLP E: mbidart/recheverria@shernoff.com 600 South Indian Hi|| Boulevard Claremont, CA 91 71 1-5444 Randy M. Hess #088635 Counsel for Plaintiff Adleson Hess & Kelly, PC T: 408 341 0234 / F: 408 341 0250 577 Salmar Avenue, 2nd Floor E: rhess@ahk-Iaw.com Cam pbell, CA 95008 3. SERVED BY PERSONAL DELIVERY. NEXT BUSINESS DAY 0R EMAIL: Pursuant to F.R.Civ.P. 5 and/or controlling Local Rules, on December 29 2020, | served the following persons and/or entities by personal delivery, overnight mail service, 0r (for those who consented in writing to such service method), by facsimile transmission and/or email. Listing the judge here constitutes a declaration that personal or next business day delivery to the judge will be completed n0 later than as indicated. [District Court Judge to be Determined] D To the Judge's Dropbox @ Clerk’s Office w/ NEF behind D By Next Business Day [Trkg# | D Proposed Orders/Proposed Sealed Docs by Email to ***_chambers@cacd.uscourts.gov [Magistrate Judge to be Determined] D To the Judge's Dropbox @ Clerk’s Office w/ NEF behind D By Next Business Day [Trkg# | D Proposed Orders/Proposed Sealed Docs by Email to ***_chambers@cacd.uscourts.gov | declare under penalty of perjury under the laws of the United States that the foregoing Is true_ d correct. December 29, 2020 Frederick Kalve Date Printed Name Signature PROOF OF SERVICE - Case No. #:20-cv-#####-***-*** Amended from USBC Form F 9013-31 1 16294086\V-1 DENTONS US LLP 601 SOUTH FIGUEROA STREET, SUITE 2500 Los ANGELES, CALIFORNIA 900 1 7-5704 (213) 623-9300 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Sutter’s Place, Inc. V. Zurich American Insurance Company, et al. Santa Clara County Superior Court Case No. 20CV370406 I am employed in the County of Los Angeles, State 0f California, I am over the age 0f 18 and not a party to the Within action. My business address is Suite 2500, 601 South Figueroa Street, Los Angeles, California 90017-5704. On December 29, 2020, I served the document, NOTICE BY DEFENDANT ZURICH AMERICAN INSURANCE COMPANY TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441 AND 1446, on the interested party/ies in this action: Michael J. Bidart #060582 Counselfor Plaintifl’ Ricardo Echeverria #166049 T: 909 621 4935 /F: 909 625 6915 Shemoff Bidart Echeverria LLP E: mbidart/recheverria@shemoff.com 600 South Indian Hill Boulevard Claremont, CA 917 1 1-5444 Randy M. Hess #088635 Counselfor Plaintifl Adleson Hess & Kelly, PC T: 408 341 0234 / F: 408 341 0250 577 Salmar Avenue, 2nd Floor E: rhess@ahk-law.com Campbell, CA 95008 D VIA MAIL: I enclosed the document in a sealed envelope/s or package/s addressed to the person/s at the address/es above and placed it/them for collection and mailing, following ordinary business practices. I am readily familiar with the practice of Dentons US LLP for collecting and processing correspondence for mailing: 0n that same day it is deposited in the ordinary course 0f business with the United States Postal Service with postage fully prepaid. D VIA NEXT BUSINESS DAY DELIVERY: Ienclosed said document in an envelope/s or package/s provided byD Federal Express / D USPS and addressed t0 the person/s at the address/es above. Iplaced it/them for collection and next business day delivery at an office or a regularly utilized drop box of the carrier or delivered such envelope/s or package/s t0 a courier or driver authorized by the carrier to receive documents. D VIA ELECTRONIC MAIL: I or an attorney on the matter transmitted a copy of the document by electronic mail t0 the person/s above Via the e-mail address/es above. g VIA ELECTRONIC SERVICE: Pursuant t0 California Rules 0f Court Nos. 2.250, 2.253, 2.261 and the Code of Civil Procedure, and pursuant to the Court’s General Order ofNovember 5, 2018, amended May 3, 2019, Iuploaded the document Without error t0 https://efi1e.acelegal.com/ selecting the proper functions t0 serve the person/s above Via Ace Legal’s e-file system. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 29, 2020, at Los Anjeles, California.@mm (u; Frederick Kalve _ 1 _ PROOF 0F SERVICE 1 16293297\V-1