defendants notice to plaintiff and state court of removal of civil act

Cal. Super. - 1st Dist.October 26, 2021

FORD & HARRISON LLP ATTO RN EY S AT LA W LOS A NG EL ES CASE NO. CGC-20-585787 DEFENDANTS’ NOTICE TO PLAINTIFF AND STATE COURT OF REMOVAL OF CIVIL ACTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David L. Cheng, Bar No. 240926 dcheng@fordharrison.com FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: (213) 237-2400 Facsimile: (213) 237-2401 Noah M. Woo, Bar No. 311123 nwoo@fordharrison.com FORD & HARRISON LLP 1901 Harrison Street, Suite 1650 Oakland, CA 94612 Telephone: 415-852-6910 Facsimile: 415-852-6925 Attorneys for Defendants BLUESTONE LANE HOLDINGS LLC (erroneously sued as BLUESTONE LANE HOLDINGS, LLC) and BLUESTONE LANE NY LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO GABRIELLE BOYD., an individual, on behalf of herself and on behalf of all persons similarly situated Plaintiffs, vs. BLUESTONE LANE HOLDINGS, LLC, a Delaware limited liability company; BLUESTONE LANE NY LLC, a New York limited liability company; and DOES 1 through 50, Inclusive; Defendants. CASE NO. CGC-20-585787 DEFENDANTS’ NOTICE TO PLAINTIFF AND STATE COURT OF REMOVAL OF CIVIL ACTION Complaint Filed: July 28, 2020 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 10/07/2020 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk FORD & HARRISON LLP ATTO RN EY S AT LA W LOS A NG EL ES - 2 - CASE NO. CGC-20-585787 DEFENDANTS’ NOTICE TO PLAINTIFF AND STATE COURT OF REMOVAL OF CIVIL ACTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE CLERK OF THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, CALIFORNIA AND TO PLAINTIFF GABRIELLE BOYD AND HER COUNSEL OF RECORD: PLEASE TAKE NOTICE that defendants Bluestone Lane Holdings LLC (erroneously sued as Bluestone Lane Holdings, LLC) and Bluestone Lane NY LLC, without waiving any of their rights, removed the above-captioned case from this Court by filing a Notice of Removal with the Clerk of the United States District Court for the Northern District of California. Pursuant to 28 U.S.C. § 1446(d), “the State Court shall proceed no further unless the case is remanded.” A copy of the Notice of Removal is attached hereto as Exhibit A. Date: October 7, 2020 Respectfully submitted, FORD & HARRISON LLP By: David L. Cheng Noah M. Woo Attorneys for Defendants BLUESTONE LANE HOLDINGS LLC and BLUESTONE LANE NY LLC EXHIBIT A FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -1- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David L. Cheng, Bar No. 240926 dcheng@fordharrison.com FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: (213) 237-2400 Facsimile: (213) 237-2401 Noah M. Woo, Bar No. 311123 nwoo@fordharrison.com FORD & HARRISON LLP 1901 Harrison Street, Suite 1650 Oakland, CA 94612 Telephone: 415-852-6910 Facsimile: 415-852-6925 Attorneys for Defendants BLUESTONE LANE HOLDINGS LLC (erroneously sued as BLUESTONE LANE HOLDINGS, LLC) and BLUESTONE LANE NY LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GABRIELLE BOYD., an individual, on behalf of herself and on behalf of all persons similarly situated Plaintiffs, vs. BLUESTONE LANE HOLDINGS, LLC, a Delaware limited liability company; BLUESTONE LANE NY LLC, a New York limited liability company; and DOES 1 through 50, Inclusive; Defendants. Case No. DEFENDANTS’ NOTICE OF REMOVAL TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (DIVERSITY JURISDICTION) Action Filed: July 28, 2020 FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -2- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: PLEASE TAKE NOTICE that defendants Bluestone Lane Holdings LLC (erroneously sued as Bluestone Lane Holdings, LLC) and Bluestone Lane NY LLC (collectively, “Defendants”) file this Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. I. INTRODUCTION 1. Plaintiff Gabrielle Boyd (“Plaintiff”) filed a complaint on July 28, 2020, in the Superior Court of California, County of San Francisco, entitled “Gabrielle Boyd, et al. v. Bluestone Lane Holdings, LLC, et al.,” Case No. CGC-20-585787 (the “State Court Action”). (Declaration of Noah M. Woo (“Woo Decl.”) ¶ 3.) 2. Pursuant to 28 U.S.C. §1446(a), a true and correct copy of the entire file or record in the State Court Action, including all process, pleadings, and orders served upon Defendant Bluestone Lane Holdings, LLC in this action, is attached to the Declaration of Noah M. Woo as Exhibit A. (Woo Decl. ¶ 3, Ex. A.) 3. On September 23, 2019, Defendants filed an Answer with the Superior Court of California, County of San Francisco. (Woo Decl. ¶ 4, Ex. B.) 4. Pursuant to 28 U.S.C. § 1446(d), the foregoing exhibits constitute all process, pleadings, and orders served on or received by Defendants and/or filed in the State Court Action. To Defendants’ knowledge, no further process, pleadings, or orders related to this case have been filed in San Francisco County Superior Court, or served by any party. (Woo Decl. ¶ 5.) II. NATURE OF THE SUIT 5. Plaintiff was employed as a non-exempt employee from November 2018 to March 2020. (Compl. ¶ 6.) Plaintiff earned an hourly rate of $19.00. Plaintiff brings various wage and our claims against Defendants. The following is a list of damages and claims that Plaintiff brings: • Meal Break Violations and Premiums (Compl. ¶¶ 14-17.) • Rest Period Violations and Premiums (Compl. ¶ 18.) • Unpaid Overtime (Compl. ¶¶ 19-23, 67-68.) • Inaccurate Wage Statements (Compl. ¶¶ 24-28.) FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -3- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • Tip Pooling Violations (Compl. ¶ 29-32.) • Unpaid minimum wage for hours worked during meal breaks and other hours worked (Compl. ¶¶ 78-85.) • Attorneys’ fees (Compl. ¶ 34; Prayer of Relief at 2(C).) • Waiting time penalties (Compl. ¶ 91.) 6. The Complaint filed in the State Court Action alleges the following causes of action: (1) Unfair Competition in Violation of California Business & Professions Code § 17200; (2) failure to pay overtime; (3) failure to pay minimum wages; (4) failure to provide meal breaks; (5) failure to provide rest breaks; (6) failure to provide accurate itemized wage statements; (7) failure to pay wages due (waiting time penalties); and (8) failure to provide gratuities. By this lawsuit, Plaintiff seeks compensatory damages, attorneys’ fees and costs, prejudgment interest, and such other relief as the court finds proper. (Compl. at Prayer for Relief.) III. BASIS FOR REMOVAL: DIVERSITY 7. A federal court has “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states.” 28 U.S.C. §1332(a). “[A]ny civil action brought in a State Court of which the district courts of the United States have original jurisdiction, may be removed by the defendant.” 28 U.S.C. §1441(a). Therefore, a state court action may be removed if (1) the action is between citizens of different states and (2) the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. Each of these requirements is met in this case. A. COMPLETE DIVERSITY OF CITIZENSHIP 8. Plaintiff worked in San Francisco County, California and alleges that she was a California resident. (Compl. ¶ 12.) Therefore, Plaintiff is a citizen of the State of California for diversity purposes. 9. Defendant Bluestone Lane NY LLC is a limited liability company created under the laws of the State of New York, with its principal place of business in New York. Accordingly, Bluestone Lane NY LLC is a citizen of New York for diversity purposes. 10. Defendant Bluestone Lane Holdings LLC is a limited liability company created FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -4- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under the laws of the State of Delaware, with its principal place of business in New York. Accordingly, Bluestone Lane Holdings LLC is a citizen of Delaware and New York for diversity purposes. 11. Pursuant to 28 U.S.C. Section 1441(b), the citizenship of fictitiously-named “Doe” defendants is to be disregarded for the purposes of removal. 28 U.S.C. § 1441(b); Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998). 12. Because Plaintiff is a citizen of California and Defendants are citizens of Delaware and/or New York, complete diversity exists between the parties. B. AMOUNT IN CONTROVERSY EXCEEDS $75,000 13. The Complaint does not allege a damages amount as to each claim. Removal is therefore proper if, from the allegations of the Complaint and the Notice of Removal, it is more likely than not that the claims will exceed the jurisdictional minimum of the court. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). In determining whether the jurisdictional minimum is met, the Court considers all recoverable damages, including statutory penalties and attorneys’ fees. White v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. 2003); Galt GIS v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 1998); Anthony v. Security Pac. Fin’l Services, Inc., 75 F.3d 311, 315 (7th Cir. 1996); Scherer v. Equitable Life Assur. Society of the United States, 347 F.3d 394, 399 (2nd Cir. 2003) (noting that amount to consider for jurisdictional purposes is amount put in controversy by the plaintiff’s complaint, without regard to subsequently asserted defenses). 14. Additionally, the removing party does not need to prove actual facts but rather need only include a “short and plain statement” setting forth “a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Sasso v. Noble Utah Long Beach, LLC, No. CV 14-09154-AB (AJWx), 2015 WL 898468, *2 (C.D. Cal. March 3, 2015) (citing Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554, 190 L. Ed. 2d 495 (2014)). Defendants also do not need to submit evidence to support its notice of removal. Dart Cherokee, 135 S. Ct. at 553. Defendant need only plausibly allege that the amount in controversy exceeds $75,000. Id. (“the defendant’s amount-in-controversy allegation should be accepted when not FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -5- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contested by the plaintiff or questioned by the court”). 15. In measuring the amount in controversy, the Court must assume that the allegations of the Complaint are true and that a jury will return a verdict in favor of the plaintiff on all claims asserted in the Complaint. Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal. 2002). The ultimate inquiry is the amount that is put “in controversy” by the plaintiff’s complaint, and not how much, if anything, the defendant will actually owe. Rippee v. Boston Mkt. Corp., 408 F. Supp. 2d 982, 986 (S.D. Cal. 2005). In determining the amount in controversy, the Court may consider damages awards in similar cases. Kroske v. U.S. Bank Corp., 432 F. 3d 976, 980 (9th Cir. 2005). 16. The Ninth Circuit has also recognized that the “amount in controversy,” for purposes of removal, is the “amount at stake in the underlying litigation,” and “includes all relief claimed at the time of the removal to which the plaintiff would be entitled if she prevails.” Chavez v. JP Morgan Chase & Co., 888 F. 3d 413, 417-18 (9th Cir. 2018). 17. While Defendants deny any liability to Plaintiff whatsoever,1 Defendants assert, based on the allegations in the Complaint and Plaintiff’s prayer for relief, that the amount in controversy exceeds $75,000.2 A. Wage and Hour Claims 18. Plaintiff’s hourly rate upon her termination was $19.00. 19. California Labor Code section 226.7 and the applicable IWC Wage Orders provides one additional hour of compensation at an employee’s regular rate for each workday that a meal period was not provided. Assuming arguendo that Plaintiff’s allegation that she did not receive any rest breaks and/or her rest breaks were interrupted, for Plaintiff’s rest break claim, there is a potential estimate of at least $3,648.00 in damages (64 workweeks x 1 rest break penalty per day x 3 days/week x $19/hr).3 1 Defendants in no way concedes that Plaintiff is owed any damages at all. 2 Evidence establishing the amount is required only when the plaintiff contests, or the court questions, the defendant’s allegation. Dart Cherokee Basin Operating Co., LLC v. Owens¸ 135 S. Ct. 547, 554 (2014); see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996). 3 It is reasonable to assume each shift during the week entitled the employee to a rest break FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -6- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. California Labor Code section 226.7 and the applicable IWC Wage Orders also provides an employee one additional hour of compensation at an employee’s regular rate for each workday that a rest period was not provided. Assuming arguendo that Plaintiff’s allegation that she was not provided any meal breaks and/or her meal breaks were interrupted, for Plaintiff’s meal break claim, there is a potential estimate of at least $3,648.00 in damages (64 workweeks x 1 meal break penalty per day x 3 days/week x $19/hr).4 21. Further, California Labor Code section 226(e)(1) provides for a penalty of up to $4,000 within the one-year statute of limitations, given that Defendants issued pay statements to Plaintiff on a weekly basis. Based on available pay records for those members of the proposed class whom worked within the relevant one-year statute of limitations period, Plaintiff’s wage statement penalty claim is estimated to be capped at the maximum of $4,000. See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1046 n.3 (9th Cir. 2000) (stating that in determining the jurisdictional amount in controversy has been satisfied, courts may consider the maximum statutory penalty available). 22. Plaintiff also claims, based on the non-payment of meal and rest break penalties and wages, that she is entitled to waiting time penalties pursuant to Cal. Lab. Code § 203, which provides that former employees may recover up to 30 days’ wages if an employer willfully fails to pay all wages owing at the time of termination. Plaintiff’s claim for waiting time penalties is estimated to be at least $4,560 (8 hours a day x $19.00/hr x 30 days). 23. Plaintiff also seeks minimum wage payments for the times she worked during meal breaks off-the-clock. (Compl. ¶ 83.) Plaintiff’s potential claims for such work is at least $1,824.00 (64 workweeks x 3 days a week x .5 meal break x $19/hr). because the average shift length was approximately 8 hours. See also 8 Cal. Code Regs. § 11190, subd. 12(A) [entitling employee at least one rest break if employee worked a period of at least 3.5 hours].) Further, Defendants utilized a conservative figure in which they allegedly violated rest break laws few times a week. 4 It is reasonable to assume each shift during the week entitled the employee to a meal break because the average shift length was approximately 8 hours. See also 8 Cal. Code Regs. § 11190, subd. 11(A) [entitling employee at least one meal break if employee worked a period over 5 hours].) Further, Defendants utilized a conservative figure in which they allegedly violated meal break laws few times a week. FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -7- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. Plaintiff also states that Defendants failed to accurately pay her for all overtime hours worked in excess of eight hours in a workday, and/or twelve hours in a workday, and/or forty hours in any workweek. Assuming arguendo that she was not paid at least 4 hours of overtime per week, Plaintiff’s potential claims for overtime is at least $7,296.00 (64 workweeks x 4 hours x 1.5 rate x $19.00/hr.). 25. Plaintiff also claims she was underpaid and not accurately paid for time worked. (Compl. ¶¶ 78-82 and 84.) Assuming arguendo, Plaintiff claims she did not receive at least 1 hour of straight time per week, Plaintiff’s potential claim for unpaid wages (non-meal break related) is $1,216.00 (64 workweeks x 1 hour x $19.00/hr). 26. Further, Plaintiff claims she was owed additional tips based on Defendants allegedly splitting tips with managerial staff. (Compl. ¶¶ 113-114.) Assuming arguendo that Plaintiff is owed an additional $3 dollars of tip per day, Plaintiff’s potential damages for gratuities is $960 (64 weeks x 5 days x $3 dollars). 27. In total, the amount in controversy, is estimated to be at least $27,152.00, exclusive attorneys’ fees and interest. B. Attorneys’ Fees 28. Plaintiff also seeks to recover attorneys’ fees and costs pursuant to California Labor Code sections 226, 1194, 2699 and/or 2802. (Compl. at Prayer for Relief.) It is well-settled that when authorized by statute, attorneys’ fees are to be included in the calculation of the amount in controversy for purposes of determining whether the requisite jurisdictional minimum is met. Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (“[W]here an underlying statute authorizes an award of attorneys’ fees, either with mandatory or discretionary language, such fees may be included in the amount in controversy”); Brady v. Mercedes-Benz USA, Inc., 243 F.Supp.2d 1004, 1010-11 (N.D. Cal. 2002) (in deciding amount in controversy issue, a court may estimate the amount of reasonable attorneys’ fees likely to be recovered by plaintiff if he were to prevail). While Plaintiff’s attorneys’ fees cannot be precisely calculated from the face of the Complaint, it is reasonable to assume that the amount of attorneys’ fees Plaintiff could incur in the course of this matter may exceed a damages award. Simmons v. PCR Technology, 209 F.Supp.2d FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -8- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1029, 1035 (C.D. Cal. 2002); See Fong v. Regis Corp., 2014 U.S. Dist. LEXIS 275, *23 (N.D. Cal. Jan. 2, 2014) (“Courts in this circuit have held that, for purposes of calculating the amount in controversy in a wage-and-hour class action, removing defendants can reasonably assume that plaintiffs are entitled to attorney fees valued at approximately twenty-five percent of the projected damages.”); Salcido v. Evolution Fresh, Inc., 2016 U.S. Dist. LEXIS 1375, *23 (C.D. Cal. Jan. 6, 2016) (fees added to amount in controversy and remand motion denied; “[t]he Court finds, consistent with its previous rulings on the issue, that a 25 percent multiplier [to calculate fees] is appropriate”). 29. Recent estimates for the number of hours expended through trial for employment cases have ranged from 100 to 300 hours. Sasso, 2015 WL 898468 at 6 (citations omitted). As such, 100 hours is an appropriate and conservative estimate. Id. 30. Plaintiff’s counsel has previously filed other wage and hour actions and charges, at the minimum, $500 per hour. (Woo Decl. at Ex. C - Declaration of Shani O. Zakay at ¶ 6.) For instance, in another wage and hour action, Mr. Zakay charged $500 per hour (Henry, et al. v. Inmotion Entertainment Group, LLC, et al.; San Francisco Superior Court Case No. CGC-18- 565643). Similar to this case, Mr. Zakay acted as co-counsel with another firm, who also charged a similar $500 rate. In less than one year (approximately 11 months), Mr. Zakay worked more than 213 hours and incurred up to $106,800.00 in attorneys’ fees. The amount of hours that Mr. Zakay worked does not include the work his co-counsel performed. Mr. Zakay will most likely perform the same amount of work and/or more work in this matter. Taking the conservative estimate of 100 hours as seen in Sasso and even assuming both firms will only collectively bill this amount, the total amount of fees (at an hourly rate of $500) is approximately, and, at a minimum without even going to trial, $50,000.00. Therefore, taking Plaintiff’s claims for attorneys’ fees in combination with Plaintiff’s potential wage damages will exceed the $75,000 threshold. See Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 794 (9th Cir. August 8, 2018) (stating that a court must include future attorneys’ fees recoverable by statute or contract when assessing whether the amount-in-controversy requirement is met). 31. Further, even relying on Plaintiff’s claim for attorneys’ fees alone, Mr. Zakay only FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -9- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 needs to work a little over 150 hours to exceed the $75,000 threshold. C. Other Relief 32. Moreover, Plaintiff seeks open-ended relief as “such other relief as the Court deems proper.” Although uncertain in amount, this additional damages claim only serves to increase the amount in controversy. See Lewis v. Exxon Mobil Corp., 348 F.Supp.2d 932, 932-934 (W.D. Tenn. 2004) (the “open ended” relief sought by plaintiff, who prayed for “judgment to be determined by a jury, for all incidental, consequential, compensatory and punitive damages” established that her case met the amount in controversy requirement even though he pled in the complaint that he did not assert a claim in excess of $75,000.) 33. Defendants deny that Plaintiff’s claims have any merit. Defendants also deny that Plaintiff suffered any damages. However, when the relief sought is taken as a whole, the amount in controversy for Plaintiff’s claims exceeds the $75,000 jurisdictional requirement, exclusive of interest and costs. 34. Thus, this Court has original jurisdiction over the claims asserted by Plaintiff in this action based on diversity of citizenship jurisdiction under 28 U.S.C. §§ 1332(a)(1) and 1441(a). IV. THE NOTICE OF REMOVAL IS PROCEDURALLY CORRECT 35. Pursuant to 28 U.S.C. § 1446(a), Defendants have attached to this Notice and the Declaration of Noah M. Woo all pleadings, process, orders, and all other filings in the state court action. (Woo Decl. ¶ 3, Ex. A.) 36. This Notice of Removal is timely filed in accordance with 28 U.S.C. 1446(b), in that it is filed within thirty (30) days after Defendants were provided with any pleading or other paper in this matter, and this case has been on file for less than one year. See Murphy Bros., Inc. v. Mitchetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). The 30-day period for removal runs from the date of service of the summons and complaint, as governed by state law. See Id. Here, Defendants were served with and received the summons and Complaint by way of substituted service on August 26, 2020, and which Plaintiff filed a proof of service with the state court on August 26, 2020. Service by substitute service is not deemed complete until the 10th day after FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -10- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mailing. Cal. Code Civ. Proc § 415.20. Accordingly, the 30-day period for removal runs from September 5, 2020. See id. 37. Here, assuming Plaintiff personally served the summons and complaint, the thirtieth day after August 26, 2020 is September 25, 2020. However, Plaintiff served copies of the complaint and summons via substituted service which provides even more time to Defendants to remove this action. Accordingly, this Notice of Removal has been timely filed within the time provided by 28 U.S.C. § 1446(b). 38. Defendants will promptly file and serve a notice of removal to the Clerk of Superior Court of California, County of San Francisco. (Woo Decl. ¶ 7, Ex. D.) As required by 28 U.S.C. §1446(d), Defendants will give notice of this removal to Plaintiff. (Woo Decl. ¶ 7, Ex. D.) V. VENUE 39. This action was brought and is pending before the Superior Court of California, San Francisco County. San Francisco County, California is located within the Northern District of California. Thus, venue is proper pursuant to 28 U.S.C. § 84(c)(2) because this is the “district and division embracing the place where [Plaintiff’s] action is pending.” 28 U.S.C. §1441(a), & 1446(a). 40. This action should be assigned to a judge sitting in the San Francisco Division of the Northern District of California because it arises in San Francisco County. 28 U.S.C. § 84(c)(1). VI. CONCLUSION WHEREFORE, Defendants pray that the Court will remove this civil action from the Superior Court of the State of California, San Francisco County, to the United States District Court for the Northern District of California. By removing the action to this Court, Defendants do not waive any defenses, objections, or motions available to it under state or federal law. FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -11- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: September 25, 2020 Respectfully submitted, FORD & HARRISON LLP By: /s/ Noah M. Woo David L. Cheng Noah M. Woo Attorneys for Defendants BLUESTONE LANE HOLDINGS LLC (erroneously sued as BLUESTONE LANE HOLDINGS, LLC) and BLUESTONE LANE NY LLC FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE STATE OF CALIFORNIA/COUNTY OF ALAMEDA I am a citizen of the United States and an employee in the County of Alameda. I am over the age of eighteen (18) years and not a party to the within action. My business address is FORD & HARRISON LLP, 1901 Harrison Street, Suite 1650, Oakland, California 94612. On September 25, 2020, I served the within: DEFENDANTS’ NOTICE OF REMOVAL TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (DIVERSITY JURISDICTION) on the following parties: PLEASE SEE ATTACHED SERVICE LIST X BY ELECTRONIC MAIL: Based upon stipulation and agreement of the parties for service by electronic transmission, I caused said document(s) to be sent to the persons at the electronic mail address listed below. I did not receive within a reasonable amount of time after the transmission, any electronic message or other indication that the transmission was not successful. X BY MAIL: I caused such envelope to be deposited in the mail at Oakland, California. I am readily familiar with the firm’s practice for collection and processing of correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I declare under penalty of perjury that the foregoing is true and correct and that this document is executed on September 25, 2020, at Oakland, California. BRIDGETTE C. BURDICK FORD & HARRISON LLP ATTO RN EY S AT LA W OA KLA ND -2- DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Jean-Claude Lapuyade, Esq. JCL Law Firm, APC 3990 Old Town Avenue, Suite C204 San Diego, CA 92110 Telephone: (619) 599-8292 Facsimile: (619) 599-8291 Email: jlapuyade@jcl-lawfirm.com Shani O. Zakay, Esq. Zakay Law Group, APLC 5850 Oberlin Drive, Suite 230A San Diego, CA 92121 Telephone: (619) 255-9047 Facsimile: (858) 404-9203 Email: shani@zakaylaw.com Attorneys for Plaintiff GABRIELLE BOYD WSACTIVELLP:11758825.3 FORD & HARRISON LLP ATTO RN EY S AT LA W LOS A NG EL ES CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA/COUNTY OF ALAMEDA I am a citizen of the United States and an employee in the County of Alameda. I am over the age of eighteen (18) years and not a party to the within action. My business address is FORD & HARRISON LLP, 1901 Harrison Street, Suite 1650, Oakland, California 94612. On October 7, 2020, I served the within: DEFENDANTS’ NOTICE TO PLAINTIFF AND STATE COURT OF REMOVAL OF CIVIL ACTION on the following parties: PLEASE SEE ATTACHED SERVICE LIST X BY ELECTRONIC MAIL: Based upon stipulation and agreement of the parties for service by electronic transmission, I caused said document(s) to be sent to the persons at the electronic mail address listed below. I did not receive within a reasonable amount of time after the transmission, any electronic message or other indication that the transmission was not successful. X BY MAIL: I caused such envelope to be deposited in the mail at Oakland, California. I am readily familiar with the firm’s practice for collection and processing of correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I declare under penalty of perjury that the foregoing is true and correct and that this document is executed on October 7, 2020, at Oakland, California. BRIDGETTE C. BURDICK FORD & HARRISON LLP ATTO RN EY S AT LA W LOS A NG EL ES - 2 - CASE NO. CGC-20-585787 DEFENDANTS’ NOTICE TO PLAINTIFF AND STATE COURT OF REMOVAL OF CIVIL ACTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Jean-Claude Lapuyade, Esq. JCL Law Firm, APC 3990 Old Town Avenue, Suite C204 San Diego, CA 92110 Telephone: (619) 599-8292 Facsimile: (619) 599-8291 Email: jlapuyade@jcl-lawfirm.com Shani O. Zakay, Esq. Zakay Law Group, APLC 5850 Oberlin Drive, Suite 230A San Diego, CA 92121 Telephone: (619) 255-9047 Facsimile: (619) 404-9203 Email: shani@zakaylaw.com Attorneys for Plaintiff GABRIELLE BOYD WSACTIVELLP:11758822.1