Opinion
CV 18-10364 DSF (MAAx)
02-20-2019
CHARLES ANTHONY VINCI, et al., Plaintiffs, v. FORD MOTOR COMPANY, et al., Defendants.
Order GRANTING Motion to Remand
Plaintiffs Charles Anthony and Alice Cecelia Vinci move for remand. The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15. The hearing set for February 25, 2019 is removed from the Court's calendar.
This case was removed based on diversity jurisdiction. It is undisputed that there is not complete diversity as Defendant Galpin Motors, Inc. and Plaintiffs are California citizens.
The removing Defendant, Ford Motor Company, primarily argues that Galpin was fraudulently joined because Plaintiffs' single implied warranty claim against Galpin is barred by the statute of limitations.
A defendant who is a resident of the forum state is fraudulently joined "if the plaintiff fails to state a cause of action against [the] resident defendant, and the failure is obvious according to the settled rules of the state." Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)).
It is not obvious under the settled law of California that Plaintiffs' claim against Galpin is barred by the statute of limitations. Plaintiffs' complaint alleges that Defendants unsuccessfully attempted repair of the allegedly defective vehicle. The statute of limitations on a warranty claim is tolled during the period in which a defendant has unsuccessfully attempted to repair the defect. Aced v. Hobbs-Sesack Plumbing Co., 55 Cal. 2d 573, 585 (1961); Cal. Civ. Code § 1795.6(b). This rule may not ultimately be applicable here, but it is not obvious on the face of the complaint that tolling would not apply and that such tolling would not bring the case within the limitations period.
The motion to remand is GRANTED. The case is remanded to the Superior Court of California, County of Los Angeles.
IT IS SO ORDERED. Date: February 20, 2019
/s/_________
Dale S. Fischer
United States District Judge