Hon. Cynthia Bashant United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO REMAND (ECF No. 2)

Presently before the Court is Plaintiffs Mike Tajran and Deena Tajran's motion to remand this action to state court. (ECF No. 2.) Defendants removed this matter based on diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441(b). (ECF No. 1.) Plaintiffs argue remand is appropriate because removal was untimely and Defendants failed to demonstrate complete diversity of citizenship. (ECF No. 2.) Plaintiffs also seek an award of attorney's fees because they believe Defendants lacked an objective basis for removal. (Id.) Defendants oppose. (ECF No. 4.)

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). The Court concludes remand is appropriate but declines to award attorney's fees. Hence, for the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion to remand.

I. BACKGROUND

Plaintiffs allege that on January 17, 2017, Mike Tajran and Irene McDonald were involved in a car accident in San Diego, California. (First Am. Compl. 4.) Mike Tajran allegedly suffered significant injuries, including a loss of mental competency. (Id. at 3-6.)

On December 18, 2018, Plaintiffs commenced this action in the San Diego County Superior Court. (Compl. 1.) Plaintiffs used a form personal injury complaint from the Judicial Council of California for their pleading. (Id.) This Complaint names Irene McDonald as the defendant and pleads standardized claims on behalf of Mike Tajran for general negligence and injury by a motor vehicle. (Id. at 1, 4-5.) The Complaint also includes a loss of consortium claim by Deena Tajran. (Id. at 6.)

Plaintiffs' counsel submits a declaration stating that, unbeknownst to Plaintiffs, Irene McDonald passed away several days before Plaintiffs filed their Complaint. (Nunez Decl. ¶ 2, ECF No. 2-2.) Plaintiffs' counsel later received a courtesy copy of a notice to creditors of a probate action in Washington state court naming Keith Johnson as the personal representative of McDonald's estate. (Id.)

On April 18, 2019, Plaintiffs filed a First Amended Complaint to substitute the "Estate of Irene McDonald, Deceased" ("Estate Defendant") in place of McDonald. (First Am. Compl. 1.) Plaintiffs used the same form complaint for this amended pleading. The form includes a statement alleging that "[e]ach defendant named above is a natural person" unless one of several boxes is checked to provide otherwise. (Id. at 2.) Plaintiffs checked a box to identify the Estate Defendant as "other (specify)." (Id.) In the form's accompanying blank box, Plaintiffs typed, "Pursuant to Probate Code § 550 et seq." (Id.) In addition, following common practice in California, Plaintiffs included unknown doe defendants in the First Amended Complaint. (Id. at 2-3.)

On May 21, 2019, Plaintiffs filed an ex parte application to add Keith Johnson—McDonald's estate's representative—to the First Amended Complaint pursuant to California Code of Civil Procedure § 377.41. (See Order on Ex Parte Application to Add Personal Representative.) Shortly thereafter, the state court issued an order adding Johnson to the pleading "as Doe 6." (Id.; see also Nunez Decl. ¶ 3.)

On May 31, 2019, Plaintiffs attempted to serve the Estate Defendant by serving McDonald's liability insurer, the Automobile Club of Southern California ("AAA"). (See Proof of Service of Summons on AAA.) On July 10, 2019, the Estate Defendant and Johnson filed a joint Notice of Removal. (Notice of Removal, ECF No. 1.) Although the Notice alleges May 31, 2019, is the service date for the Estate Defendant, the Notice does not allege whether—or when—Johnson was served. (See id. ¶ 4.) Nor does the Notice include any other allegations regarding the timeliness of removal. (See id. ¶¶ 1-6.)

The Notice alleges diversity jurisdiction is proper because the amount in controversy exceeds $75,000 and complete diversity of citizenship exists. (Notice of Removal ¶ 5.) Defendants allege Plaintiffs are citizens of California; the Estate Defendant "is a citizen of the State of Washington, as the place of domicile when Irene McDonald passed away"; and Johnson "likewise is a citizen of Washington as the legal representative of decedent's estate." (Id. ¶ 6.)

Plaintiffs filed their motion to remand on August 9, 2019. (Mot., ECF No. 2.) Then, without leave of court, Defendants filed an Amended Notice of Removal on August 19, 2019. (Am. Notice of Removal, ECF No. 4.) The Amended Notice alleges that "Johnson was personally served with the First Amended Complaint" on June 19, 2019—less than thirty days before the original Notice was filed. (Id. ¶ 5.) Defendants' counsel explains that the original Notice "was mistakenly filed without attaching the summons to Defendant Keith Johnson" due to a "clerical error by [counsel's] office." (Holnagel Decl. ¶ 1, ECF No. 4-3.) The Amended Notice includes the same allegations regarding diversity jurisdiction. (See Am. Notice of Removal ¶¶ 6-7.) Defendants also filed an opposition to Plaintiffs' motion to remand. (Opp'n, ECF No. 4-2.)

II. LEGAL STANDARD

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "They possess only that power authorized by Constitution or a statute, which is not to be expanded by judicial decree." Id. (internal citations omitted). "It is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (internal citations omitted); see also Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006).

Consistent with the limited jurisdiction of federal courts, the removal statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 (2002); O'Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Gaus, 980 F.2d at 566; see also Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990); O'Halloran, 856 F.2d at 1380.

"A motion to remand is the proper procedure for challenging removal." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing 28 U.S.C. § 1447(c)). The propriety of removal turns on whether the case could have originally been filed in federal court, Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997), and the court's analysis focuses on the pleadings "as of the time the complaint is filed and removal is effected," Strotek Corp. v. Air Transp. Ass'n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002).

III. ANALYSIS

Plaintiffs raise two arguments to justify remanding this action to state court. First, Plaintiffs argue removal was untimely because Defendants filed their Notice of Removal more than thirty days after the Estate Defendant was served. (See Mot. 1:25-28; Pl.'s Mem. 3:13-22.) Second, Plaintiffs argue Defendants failed to demonstrate in their Notice that complete diversity of citizenship exists. (Pl.'s Mem. 3:23-4:28.) The Court focuses on the diversity issue because it is dispositive.

Diversity jurisdiction exists where an action is between "citizens of different States" and "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). "When an action is removed based on diversity, complete diversity must exist at removal." Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 773 (9th Cir. 1986) (citing Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985)). Complete diversity exists where "the citizenship of each plaintiff is diverse from the citizenship of each defendant." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). When removing a case, defendants are "merely required to allege (not to prove)" the citizenship of the parties. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

To recap, there are four parties named in the First Amended Complaint: Plaintiff Mike Tajran, Plaintiff Deena Tajran, Defendant Keith Johnson, and Defendant Estate of Irene McDonald, Deceased. The Notice of Removal alleges Mike Tajran and Deena Tajran are "citizen[s] of the State of California." (Notice of Removal ¶ 6.) This allegation adequately establishes their citizenship. See Ehrman v. Cox Commc'ns, Inc., 932 F.3d 1223, 1228 (9th Cir. 2019).

Further, the Notice alleges Defendant Keith Johnson is the legal representative of Irene McDonald's estate. (Notice of Removal ¶ 6.) Under 28 U.S.C. § 1332(c)(2), "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent." The Notice alleges McDonald was domiciled in Washington when she passed away, (Notice of Removal ¶ 6), making her a citizen of Washington, see Ehrman, 932 F.3d at 1227. Hence, Johnson is likewise a citizen of Washington. See 28 U.S.C. § 1332(c)(2).

Defendants allege the remaining party, the Estate Defendant, is also a citizen of Washington, which—if true—would establish complete diversity. (See Notice of Removal ¶ 6.) Plaintiffs, however, attack the sufficiency of this allegation. They argue the Estate Defendant is not the real party defendant because they are suing it under California Probate Code § 550. (See Pl.'s Mem. 3:12-4:28 (identifying AAA as the "real party in interest"); see also First Am. Compl. 2 (suing the Estate Defendant under "Probate Code § 550 et seq.").) As explained below, this statute allows a plaintiff to sue a decedent's estate as a nominal defendant to pursue only the benefits of the decedent's liability insurance policy. Thus, Plaintiffs argue McDonald's insurer is the real party defendant, and Defendants therefore should have alleged the citizenship of this insurer in their Notice of Removal. (See Pl.'s Mem. 4:13-28.)

To resolve this argument, the Court first reviews diversity jurisdiction principles concerning real parties and direct actions against liability insurers. The Court then turns to the framework established in California Probate Code §§ 550-55. Finally, the Court determines whether McDonald's insurer's citizenship should be examined for assessing complete diversity of citizenship.

A. Real Parties and Direct Actions

"In assessing diversity jurisdiction, courts look to the real parties to the controversy." Lewis v. Clarke, 137 S. Ct. 1285, 1295 (2017) (citing Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 460 (1980)). "Thus, a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy." Navarro, 446 U.S. at 460; see also Carden v. Arkoma Assocs., 494 U.S. 185, 191-92 (1990) (explaining the "real party to the controversy" approach has been used to determine whose citizenship should be considered for diversity jurisdiction—not to determine whether a specific party is a citizen).

To illustrate, the Supreme Court held an insurance company was the real party to a controversy when sued under a state's "direct action" statute. Lumbermen's Mut. Cas. Co. v. Elbert, 348 U.S. 48 (1954). In Elbert, the plaintiff was allegedly injured in a car accident due to another person's negligence. Id. at 49. Both the plaintiff and the alleged wrongdoer were citizens of Louisiana, but the wrongdoer's insurer was a citizen of Illinois. Id. Louisiana's "direct action" statute allowed the plaintiff to bring an action against the insurer for benefits under the wrongdoer's insurance policy—without joining the wrongdoer as a defendant. Id. at 49-50. Using this statute, the plaintiff sued the insurance company in federal court based on diversity jurisdiction. Id. at 50.

To defeat diversity jurisdiction, the insurance company argued the "matter in controversy" was "the underlying tort liability of the alleged wrongdoer." Elbert, 348 U.S. at 50. Hence, the insurer argued the wrongdoer—not the insurer—was the real party defendant, and therefore the wrongdoer's citizenship should be considered to assess diversity jurisdiction. See id. at 50-51.

The Supreme Court rejected the insurer's argument. Elbert, 348 U.S. at 51. Looking to state law, the Court noted Louisiana courts had "differentiated between actions brought by an injured party against the insurer alone and those brought against either the tortfeasor alone or together with the insurer." Id. Among other differences, the Supreme Court noted that although "either type of action encompasses proof of the tortfeasor's negligence, in the separate suit against the insurer a plaintiff must also establish liability under the policy." Id. And Louisiana courts had characterized the direct action statute "as creating a separate and distinct cause of action against the insurer which an injured party may elect in lieu of his action against the tortfeasor." Id. The insurer also had "a direct financial interest in the outcome of [the] litigation." Id. Consequently, the Supreme Court determined the insurer is "not merely a nominal defendant but is the real party in interest." Hence, it was proper to consider only the insurer's citizenship to determine diversity jurisdiction. See id. at 53.

Congress has since changed the diversity jurisdiction statute to address the exact situation in Elbert. See 13F Wright & Miller, Federal Practice and Procedure § 3629 (3d ed., Aug. 2019 update) (discussing the 1964 amendment to address corporate citizenship in direct actions). The diversity statute now provides:

[A] corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of—

(A) every State and foreign state of which the insured is a citizen;

(B) every State and foreign state by which the insurer has been incorporated; and

(C) the State or foreign state where the insurer has its principal place of business[.]

This case is comparable to Elbert, but the tables are turned. Whereas in Elbert the insurer argued it was not the real party defendant to destroy diversity, here Defendants are arguing an insurer is not the real party defendant to create diversity. And although the diversity statute now resolves the circumstances presented in Elbert, the statute does not fit this case for two reasons. First, this lawsuit names the Estate Defendant—not directly an "insurer"—as a defendant. See 28 U.S.C. § 1332(c)(1); see also Beckham, 691 F.2d at 901-02. Second, Plaintiffs added Johnson, the personal representative of McDonald's estate, to the lawsuit. See 28 U.S.C. § 1332(c)(1) (providing an additional citizenship rule for direct actions only when "the insured is not joined as a party-defendant").

Given that this case is comparable to Elbert but the diversity statute's direct action provision does not control, the Court finds the Supreme Court's "real party" approach in Elbert and other cases to be helpful. See Elbert, 348 U.S. at 51; see also Navarro, 446 U.S. at 465. Hence, the Court will look to state law to help it gauge whether the Estate Defendant is a nominal party and an insurer "is the real party" here as a matter of federal diversity jurisdiction. Cf. Elbert, 348 U.S. at 51; see also Navarro, 446 U.S. at 460.

B. California Probate Code § 550

Plaintiffs invoke California Probate Code § 550 to sue the Estate Defendant for an accident that occurred in California. But even though the Estate Defendant is a "named defendant in the action," the Estate Defendant is "not really a party because it is not a legal entity." See Meleski v. Estate of Albert Hotlen, 29 Cal. App. 5th 616, 624 (2018). "The 'estate' of a decedent is not an entity known to the law. It is neither a natural nor an artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent." Id. (quoting Tanner v. Estate of Best, 40 Cal. App. 2d 442, 445 (1940)). Because an estate is not a legal entity, it "can neither sue nor be sued." Bright's Estate v. W. Air Lines, 104 Cal. App. 2d 827, 829 (1951); see also Hill v. Westbrook's Estate, 95 Cal. App. 2d 599, 604 (1950) (explaining the action "should have been dismissed as to the estate" because it "is not a person or entity and cannot be sued"). Rather, an action must be brought against the estate's executor or administrator in the person's representative capacity. E.g., Golden Gate Undertaking Co. v. Taylor, 168 Cal. 94, 97 (1914).

That said, California Probate Code § 550 allows a party to bring a cause of action against a nominal estate to recover under a decedent's insurance policy. Section 550(a) provides that "an action to establish the decedent's liability for which the decedent was protected by insurance may be commenced or continued against the decedent's estate without the need to join as a party the decedent's personal representative or successor in interest." Cal. Probate Code § 550(a). The action "shall name as the defendant, 'Estate of (name of decedent), Deceased.'" Id. § 552(a). However, the "[s]ummons shall be served on a person designated in writing by the insurer or, if none, on the insurer." Id. And the decedent's insurer "may deny or otherwise contest its liability in" the action. Id. § 553.

By default, the damages in an action under § 550 must be within the limits of the insurance policy or "recovery of damages outside the limits . . . shall be waived." Cal. Probate Code § 554(a). Similarly, a judgment under § 550 typically "is enforceable only from the insurance coverage and not against property in the estate." Id. If, however, the plaintiff joins the personal representative of the decedent's estate and also files a creditor's claim in probate, the judgment may exceed the policy's limits. Id. § 554(b); see also id. § 553 ("Unless the personal representative is joined as a party, a judgment in the action under this chapter or in the independent action does not adjudicate rights by or against the estate."). Finally, the remedy created under § 550 "is cumulative and may be pursued concurrently with other remedies." Id. § 550(b).

Plaintiffs sued the "Estate of Irene McDonald, deceased." (First Am. Compl. 3.) Therefore, they sued the Estate Defendant in the format specified by Probate Code § 552(a). Plaintiffs also noted the Estate Defendant is not a natural person and is being sued "[p]ursuant to Probate Code § 550 et. seq." (Id. 2.) Thus, it is apparent from the face of the First Amended Complaint that Plaintiffs are seeking to recover directly against an insurance policy under the rules prescribed by Probate Code §§ 550-55.

C. Impact on Diversity Jurisdiction

Defendants agree that Plaintiffs are proceeding against the Estate Defendant under Probate Code § 550, but they dispute this conclusion's impact on diversity jurisdiction. (Opp'n 4:2-5:16.) Defendants argue the Probate Code "statutes make clear that the action must be prosecuted against the estate," and state law thus demonstrates Plaintiffs' action is "at most, indirectly against the insurer." (Id. 4:8-12.) Consequently, Defendants contend "this litigation is not a direct action against the insurer," and therefore the insurer's citizenship should not be considered when assessing complete diversity of citizenship. (Id. 4:13-5:16.)

Although there is some support for Defendants' position, the Court is unconvinced. On balance, the California Probate Code and case law demonstrate an insurer is the real party defendant for Plaintiffs' § 550 action, and therefore any insurer's citizenship should be considered when "assessing diversity jurisdiction." See Lewis, 137 S. Ct. at 1295.

The California Probate Code supports this conclusion because the provisions summarized above create a cause of action that is akin to a direct action against an insurer. Like a direct action, an action under Probate Code § 550 seeks insurance benefits, and there is no requirement that the insured—the decedent's estate's representative—be joined or that a judgment first be obtained against the insured. See Beckham, 691 F.2d at 901-02. And although the action proceeds against a nominal estate defendant, the nominal defendant must be served via the insurer, the insurer has the right to contest its liability in the action, and a judgment up to the policy limits may be enforced against the insurer itself. Cal. Probate Code §§ 550, 52-54; see also Meleski, 29 Cal. App. 5th at 554; 24 Cal. Jur. 3d Decedents' Estates § 10 ("The action is, in effect, brought against the insurer, although the action must name the decedent's estate as defendant."). Hence, although the form of an action under Probate Code § 550 is not the same as a typical direct action, the substance of Probate Code §§ 550-55 reveals an insurer is similarly the real party to the controversy, and its citizenship should therefore count when a court is assessing diversity jurisdiction.

The California Court of Appeal's decision in Meleski v. Estate of Albert Hotlen, 29 Cal. App. 5th 616 (2018), also supports this outcome. There, the court addressed whether an insurance company is liable under California Code of Civil Procedure § 998 for costs after it rejects a settlement offer in an action brought under Probate Code § 550. Id. at 620. The insurance company argued it could not "be forced by section 998 to pay costs because it was not a party to the action," but the court rejected this claim. Id. at 623, 626. After reviewing Probate Code §§ 550-55, the court reasoned the insurer was a party for purposes of Code of Civil Procedure § 998 because the insurer was the entity controlling the litigation and bearing the risk of loss. Id. at 625; see also id. at 620 (describing an insurance company as a "de facto party under Probate Code sections 550 through 555"). Indeed, the court noted the insurance company was "undeniably" the litigant, even though the "named defendant" was the estate. Id.

This case differs from Meleski because Plaintiffs added McDonald's estate's representative—Johnson—to the action. Hence, an insurer behind the nominal Estate Defendant would not be "the only litigant for the defense" or necessarily be "in complete control of the litigation." See Meleski, 29 Cal. App. 5th at 625. But Plaintiffs had the option to substitute Johnson in lieu of the Estate Defendant, and they did not. See Cal. Prob. Code § 552(b). Further, Plaintiffs' statutory remedy against the Estate Defendant "is cumulative and may be pursued concurrently with" their remedy against Johnson. See id. § 550(b); see also Estate of Prindle, 173 Cal. App. 4th 119, 134 (2009). Plaintiffs also can enforce a judgment up to the policy limits directly against the insurer. Therefore, Plaintiffs still have claims against the Estate Defendant that seek to recover directly under an insurance policy, and the Court remains convinced that an insurer is the de facto defendant for these claims. See Meleski, 29 Cal. App. 5th at 620.

In addition, the Court finds helpful the district court's consideration of Probate Code § 550 in the removal context in Wright v. Estate of Johnson, No. ED CV15-00005 JAK, 2015 WL 2412102 (C.D. Cal. May 19, 2015). There, the situation was different, but the court's diversity jurisdiction analysis is helpful because it shows the court believed a nominal estate defendant shares the citizenship of a corporate insurer. To explain, a California citizen sued a nominal estate under Probate Code § 550, and an insurer removed the action based on diversity jurisdiction. Id. at *1. The decedent was a citizen of California, but the insurer was a citizen of Michigan. Id. at *2. In opposing a motion to remand, the insurer argued the district court should consider only the insurer's citizenship and not that of the decedent because the insurer was "the real party in interest in the action." Id. at *4. The plaintiff, in turn, argued the insurer's citizenship was irrelevant and only the decedent's California citizenship should be considered, which would have destroyed complete diversity. Id.

The district court reviewed Probate Code §§ 550-55 and recognized that California does not permit direct actions against insurers. Wright, 2015 WL 2412102, at *3-5; see also Hon. Virginia Phillips et al., California Practice Guide: Federal Civil Procedure Before Trial, Cal. & Ninth Circuit Eds. § 2:1305 (noting direct actions "are not permitted in California or most other states"). The court reasoned, however, that even though "California does not, in general, permit direct actions, the California Probate Code provides a specific avenue to institute a quasi-direct action against an insurer." Id. at *5. Therefore, the court applied the direct action provision of the diversity statute, 28 U.S.C. § 1332(c)(1). Id. at *6. Meaning, the court considered the estate defendant not only a citizen of Michigan—the state where the insurer was incorporated and had its principal place of business—but also a citizen of California—the state where the decedent was domiciled. See id. at *4, 6-7. Consequently, there was no complete diversity, and the court remanded the case because the insurer failed to meet its burden to show diversity jurisdiction. Id. at *7.

This case similarly differs from Wright because Plaintiffs added Johnson to the lawsuit. Thus, as mentioned, the direct action clause of the diversity statute is inapplicable. See 28 U.S.C. § 1332(c)(1). Wright still bolsters this Court's conclusion because the Wright court accepted that the insurer's citizenship plays a role in the diversity jurisdiction analysis for an action under Probate Code § 550. If the Wright court believed, as Defendants argue here, that a nominal estate defendant under § 550 has only the same citizenship as the decedent, then there would have been no reason for the court to reach the issue of whether the direct action clause applies to make the insurer in Wright a citizen of both Michigan and California. See 2015 WL 2412102, at *3-7.

Finally, the Court is unpersuaded by Defendants' reliance on Smith v. Interinsurance Exchange, 167 Cal. App. 3d 301 (1985), to support their argument that the Court should limit its consideration to the citizenship of the decedent. There, the California Court of Appeal held that the predecessor to Probate Code §§ 550-55 did not make the insurer a responsible party to the action, despite that the law required the insurer to accept service of the complaint and defend on behalf of the estate defendant. Id. at 304-05. As the Court of Appeal later recognized in Meleski, however, "the particular question [in Smith] was whether the plaintiff could sue the insurer for unfair claims practices and the estate to establish the decedent's liability in the same action." Meleski, 29 Cal. App. 5th at 625. Plaintiffs are not bringing unfair claims practices here; they are bringing claims that are only based on the decedent's alleged negligence. And the Court is regardless presented with a different issue than that considered in Smith. The Court is persuaded that as a matter of diversity jurisdiction, the Court should look past the nominal Estate Defendant for the reasons explained above.

In sum, the California Probate Code and other authority demonstrate the Estate Defendant is a nominal defendant. An insurer is the real party defendant for Plaintiffs' action against the Estate Defendant under Probate Code § 550, but Defendants' Notice of Removal alleges the Estate Defendant simply shares the citizenship of the decedent. Given that the Court must "look to the real parties to the controversy" when "assessing diversity jurisdiction," the Notice is insufficient. See Lewis, 137 S. Ct. at 1295. There is also no suggestion from Defendants that complete diversity would exist if the Court were to consider the corporate citizenship of McDonald's insurer. Defendants bear the burden of establishing removal was proper in light of the strong presumption against removal jurisdiction. See Gaus, 980 F.2d at 566. They have not met this burden. The Court thus finds removal was improper and grants Plaintiffs' request to remand this case.

D. Attorney's Fees

Plaintiffs also request an award of attorney's fees in their motion to remand. (Pl.'s Mem. 5:1-17.) "An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). "[A]n award of fees under § 1447(c) is left to the district court's discretion." Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005). "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Id. at 139. Although the Court concludes remand is appropriate, the Court does not find that an award of fees under § 1447(c) is warranted. Some authority supports Defendants' position, and Plaintiffs' remand motion raises issues that are not clear-cut. The Court thus denies Plaintiffs' request for attorney's fees.

IV. CONCLUSION

For the foregoing reasons, the Court concludes remand is appropriate, but the Court declines to award attorney's fees. Consequently, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion to remand. (ECF No. 2.) The Court REMANDS this action to the San Diego County Superior Court for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").

IT IS SO ORDERED. DATED: January 17, 2020

/s/ _________

Hon. Cynthia Bashant

United States District Judge