mcinchak notice of motion and motion to remand case to state court

8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court

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Case5:14-cv-03084-RMW Document9 Filed08/01/14 Page1 of 2

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Michelle A Welsh, SBN 84127

STONER, WELSH SCHMIDT

413 Forest A venue

Pacific Grove,

CA

93950-4201

Telephone: 831-373-1993

Facsimile: 831-373-1492

Email:

MA

[email protected]

6 Attorneys for Plaintiff, Steven Mclnchak

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UNITED

STATES

DISTRICT

COURT

NORTHERN

DISTRICT

OF

CALIFORNIA

STEVEN

MciNCHAK

PETITIONER/Plaintiffs

v

CITY OF CARMEL-BY-THE-SEA, JASON

STILWELL, CITY ADMINISTRATOR OF

THE CITY OF CARMEL BY-THE-SEA,

SUSAN PAUL, ADMINISTRATIVE

SERVICES DIRECTOR OF THE CITY OF

CARMEL BY-THE-SEA; AND DOES 1-50,

inclusive,

Defendants.

CASE NO: 5:14-CV-03084 (HRL)

Hearing Date: September 30, 2014

Hearing time: 10:00

am

Monterey County Superior Court

Case No: M128062

NOTICE

OF

MOTION AND MOTION

TO

REMAND CASE TO STATE COURT

Action Filed: June 4, 2014

Discovery Cutoff: Not Set

Trial Date:

Not

Set

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that pursuant to 28 USC 1447

on

September

30 2014

at

10:00 a.m. or as soon thereafter as the matter may be heard in Courtroom 2 of the above entitled

court, located at 280 S. First Street, 5th Floor, San Jose, California, 95113. Plaintiff Steven

Mcinchak will move this court for an order remanding the above-entitled matter to the Superior

Court of California, Monterey County.

The motion is made on the ground that the court does not have subject matter jurisdiction

over the causes of action alleged in this complaint because there is no federal question presented.

NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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The motion is based on this notice

of

motion, and the accompanying memorandum of

points and authorities served and filed herewith, the papers and records on file herein, and on such

other oral and documentary evidence as may be presented at the hearing

of

the motion.

Dated:

:T

3

f

2014


c

Michelle A. Welsh

Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK


CASE NO.: 5:14-CV-030084 HRL)

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Case5:14-cv-03084-RMW Document9-1 Filed08/01/14 Page1 of 6

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Michelle A Welsh,

SBN

84127

STONER,

WELSH

SCHMIDT

413 Forest A venue

Pacific Grove, CA 93950-4201

Telephone: 831-373-1993

Facsimile: 831-373-1492

Email: [email protected]

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Attorneys for Plaintiff, Steven Mcinchak

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UNITED STATES

DISTRICT COURT

NORTHERN

DISTRICT OF CALIFORNIA

STEVEN MciNCHAK


v

CITY OF CARMEL-BY-THESEA JASON

STILWELL,

CITY

ADMINISTRATOR OF


SUSAN PAUL ADMINISTRATIVE

SERVICES DIRECTOR OF THE

CITY

OF


inclusive,

Defendants.

CASE NO: 5:14-CV-03084 (HRL)


Hearing Time: 10:00

am


Case No: M128062

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF

MOTION TO REMAND CASE TO STATE

COURT

Action

Filed: June 4, 2014

Discovery Cutoff:

Not

Set

Trial Date: Not Set

I

STATEMENT OF ISSUES TO BE DECIDED.

A. Whether This Case Should Be Remanded To State Court Because t

Does Not Allege Any Claim Arising Under The Constitution Treaties

Or Laws f The United States?

Federal question jurisdiction .. exists only

if

plaintiff's right to relief depended necessarily

on a substantial question

of

federal law.

Merrell Dow Pharmaceuticals Inc. v Thompson

478 U.S

804, 807 (1986). Plaintif f's complaint does not plead any violations of federal law. The compla in

seeks plaintiff's reinstatement to his

job

with the City of Carmel, after he was placed

on

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO

STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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administrative leave without cause and without due process

of

law secured by Article

I

Section 2 o

the Constitution

of

the State

of

California .. Complaint, page 2, second paragraph. Further, the

City's actions violated Petitioner/plaintiffs right to privacy and impaired Petitioner/Plaintiffs vested

contractual rights in violation

of

the Constitution of the State

of

California at Article

I

Section

9.

The

City also violated its own Ordinances. Id. The complaint also alleges that the City and its agents

have instituted a pattern and practice of discrimination based on age causing a disparate impact on

older employees which is continuing in violation

of

California law (the California Fair Employmen

and Housing Act.) Complaint, page 7, 116. The complaint also alleges defendants defamed him in

violation of California Civil Code Sections

45

and

46(1), (2)

and

(5).

Complaint, page

12,

,37. The

Complaint alleges intentional and negligent infliction

of

emotional distress (pages

14

and

15)

and an

action for declaratory relief and reinstatement to his position pursuant to California Code of Civi

Procedure Section

1060

and the Constitution and laws of the State of California. Complaint, page

17,

lines

2

and

3.

There is only one passing reference to unlawful conduct in violation of California and federal

law, and the California and United States Constitutions

in

the context

of

alleging arbitrary and

capricious conduct y Defendants to support an award of attorneys' fees under California Law, a

Government Code section 800. Complaint, page 7, par. 18. The Complaint identifies

no

specific

federal law or provision of the United States Constitution that provides plaintiff any relief. The

complaint invokes no federal statutory or Constitutional right. Consequently, this case does not arise

under federal law and should be remanded to state court.

See Franchise Tax Board

v

Construction

Laborers Vacation Trust

463 U.S. 1 (1983).

B ARGUMENT

A.

Removal

of Cases

Involving a Federal Question


STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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Federal courts have limited jurisdiction to hear only those cases specified by the Constitution

or the Congress.

Kokkonen

v

Guardian Life Ins Co o America 511

U.S.

375

(1994).

28

USC

Section 1441(a) authorizes removal

o

civil actions within the original jurisdiction

o

the federal district courts. Section

1441

(b) reads, in part:

Any civil action

o

which the district courts have original jurisdiction founded on a claim or

right arising under the Constitution, treaties or laws o the United States shall be removable withou

regard to the citizenship or residence

o

the parties.

28

U.S.C.

§

1441(b).

This section 1441 (b), arising under the Constitution, treaties, or laws o the United States, is

nearly identical to the language arises under the Constitution, laws, or Treaties

o

the United States,

which is u ~ e in Section 1331

o

Title 28, conferring federal question jurisdiction on the federal

courts. Therefore, it is appropriate to follow the general principles governing federal question

14

. jurisdiction when determining removal jurisdiction.

Page

v

Tri-City Healthcare Dist.

860

F.

Supp

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25

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2d 1154 (S.D. Cal. 2012).

Removal is proper only when a right created by the Constitution, a treaty, or other federal law

is an essential element o the plaintiff's properly pleaded claim for relief. Lippitt v Raymond James

Financial Services Inc. 340 F.3d 1033 (9th Cir. 2003). In this case, neither federal law nor the U.S

Constitution is a necessary element

o

plaintiff's claims.

B Definition

o

Arising Under

Article III, Section 2 o the Constitution provides that the judicial power

o

the United States

extends to cases arising under this Constitution, the Laws o the United States, and Treaties made, o

which shall be made, under their Authority. The meaning o arising under is the requirement tha

the plaintiff's well-pleaded complaint use federal law that is central to the dispute. Empire

Healthchoice Assur. Inc.

v

McVeigh

547 U.S. 677, 699 (2006).


STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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Constitutional provision. As in Rains the Complaint references federal law

as

one

of

several source

of evidence of Defendants' arbitrary and capricious conduct sufficient to support an award o

attorney's fees under California law, which can be awarded by the court only

if

Plaintiff prevails in hi

state law claims. California Government Code section 800. That statute expressly provides a

California Government Code section 800(b : This section is ancillary only, and shall not be

construed to create a new cause of action . Each cause of action stated in the Complaint arises from

California statutes and Constitutional provisions. Each cause of action

is

independent from any

federal right or authority. Each is complete in and of itself without having to resort to federal law to

obtain relief. Even where a claim can be supported by alternative and independent theories one o

which is a state law t h o r ~ and one of which is a federal law theory federal question jurisdiction

does not attach unless federal law is an essential element of each claim. Christianson v. Col

Industries Operating Corp. 486 U.S. 800 at 810, 108 S.Ct. 2166, at 2174, 100 L.Ed.2d

811

(1988)

D. Defendant Cites

Incorrect

Removal Statute

Defendant incorrectly cites to 28 U.S.C. § 1441(b) as basis for removal to federal court. §

1441(b) is for removal based on diversity. Notice

of

Removal Cover Page, 1: 15-21. Parties are

citizens of the same state and therefore jurisdiction cannot be granted under this statute. Remova

then is improper. Trask v. Kasenetz 818 F. Supp. 39 (E.D. N.Y. 1993).

E. Removal is Disfavored So The Exercise

Of

Removal Jurisdiction Is Strictly

Construed.

Am.

Fire

Cas. Co. v.

Finn.

341

U.S.

6, 10,

(1951). Abrego

v.

Dow

Chern.

Co.

443

F.3d

676, 685 (9th Cir. 2006). A removal statute must be strictly construed, with all doubts and

ambiguities resolved against removal and in favor of remand. Shamrock Oil Gas Corp.

v.

Sheets

313

U.S. 100, 108 (1941).

This strong presumption against removal demonstrates that the defendant has the burden o

establishing that removal is proper. Here, defendants incorrectly cite the removal statute and also d9


STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)




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not properly establish jurisdiction

by

stating facts that prove the claims in the pleading arise under a

specific federal law. Any ambiguity should compel an order remanding this matter to state court.

Dated:

T

·

I

2014


- - u v ? t / ~ L

Michelle A Welsh



STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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Michelle

A

Welsh, SBN 84127


413 Forest A venue


Telephone: 831-373-1993

Facsimile: 831-373-1492


6


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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STEVEN MciNCHAK


v.







inclusive,

Defendants.

CASE NO: 5:14-CV-03084 (HRL)


Hearing time: 10:00 am


Case No: M128062

NOTICE

OF

MOTION AND MOTION

TO

REMAND CASE TO STATE COURT


Discovery Cutoff:

Not

Set

Trial Date:

Not Set

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

NOTICE

IS

HEREBY GIVEN that pursuant to 28 USC 1447 on September 30 2014 at

10:00 a.m. or as soon thereafter as the matter may be heard

in

Courtroom 2

of

the above entitled

court, located at 280 S First Street, 5th Floor, San Jose, California, 95113. Plaintiff Steven

Mclnchak will move this court for an order remanding the above-entitled matter to the Superior

Court

of

California, Monterey County.

The motion is made on the ground that the court does not have subject matter jurisdiction

over the causes

of

action alleged

in

this complaint because there is no federal question presented.


CASE NO.: 5:14-CV-030084 (HRL)




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The motion is based on this notice

of

motion, and the accompanying memorandum

of

points and authorities served and filed herewith, the papers and records on file herein, and on such

other oral and documentary evidence as may be presented at the hearing of the motion.

Dated:

:T t l

2014


u ~ 0 ~

Michelle

A.

Welsh



CASE NO.: 5:14-CV-030084 (HRL)

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Michelle A Welsh, SBN 84127


413 Forest A venue


Telephone: 831-373-1993

Facsimile: 831-3 73-1492

Email: MA [email protected]

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STEVEN MciNCHAK


v

CITY OF CARMEL-BY-THESEA, JASON


THE CITY OF CARMEL BY-THE-SEA?




inclusive,

Defendants.

CASE NO: 5:14-CV-03084 (HRL)


Hearing Time: 10:00 am


Case No: Ml28062

MEMORANDUM

OF

POINTS AND

AUTHORITIES IN SUPPORT OF

MOTION

TO REMAND CASE TO STATE

COURT



Trial Date: Not Set

I. STATEMENT

OF

ISSUES TO BE DECIDED.

A Whether This Case Should Be Remanded To State ourt Because t

Does Not Allege Any Claim Arising Under The Constitution, Treaties

Or

Laws Of

The

United States?

Federal question jurisdiction .. exists only if plaintiffs right to relief depended necessarily

on a substantial question of federal law. Merrell Dow Pharmaceuticals Inc.

v

Thompson 478 U.S

804, 807 (1986). Plaintiffs complaint does not plead any violations of federal law. The complaint

seeks plaintiffs reinstatement to his job with the City

of

Carmel, after he was placed on


STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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administrative leave without cause and without due process o law secured by Article I Section 2 o

the Constitution o the State o California .. Complaint, page 2, second paragraph. Further, the

City's actions violated Petitioner/plaintiffs right to privacy and impaired Petitioner/Plaintiffs vested

contractual rights in violation o the Constitution o the State o California at Article I Section

9.

The

City also violated its own Ordinances. Id. The complaint also alleges that the City and its agents

have instituted a pattern and practice o discrimination based on age causing a disparate impact on

older employees which is continuing in violation o California law (the California Fair Employmen

and Housing Act.) Complaint, page

7

~ 1 6 The complaint also alleges defendants defamed him in

violation o California Civil Code Sections

45

and 46(1), (2) and (5). Complaint, page 12 ~ 3 7 The

Complaint alleges intentional and negligent infliction

o

emotional distress (pages

14

and 15) and an

action for declaratory relief and reinstatement to his position pursuant to California Code o Civi

Procedure Section 1060 and the Constitution and laws o the State o California. Complaint, page

17

lines 2 and

3.

There is only one passing reference to unlawful conduct in violation o California and federal

law, and the California and United States Constitutions in the context

o

alleging arbitrary and

capricious conduct by Defendants to support an award

o

attorneys' fees under California Law, at

Government Code section 800. Complaint, page 7, par.

18.

The Complaint identifies

no

specific

federal law or provision o the United States Constitution that provides plaintiff any relief. The

complaint invokes no federal statutory or Constitutional right. Consequently, this case does not arise

under federal law and should be remanded to state court.

See Franchise Tax Board v Construction

Laborers Vacation Trust 463 U.S. 1 (1983).

B ARGUMENT

A.

Removal o Cases Involving a Federal Question


STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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2

3

5

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7

8

9

10

12

3

Federal courts have limited jurisdiction to hear only those cases specified by the Constitution

or the Congress.

Kokkonen

v

Guardian Life

Ins Co

o

America 511

U.S. 375 (1994).

28

USC

Section 1441 (a) authorizes removal

o

civil actions within the original jurisdiction

o

the federal district courts. Section 1441(b) reads, in part:

Any civil action o which the district courts have original jurisdiction founded on a claim o

right arising under the Constitution, treaties or laws o the United States shall be removable withou

regard to the citizenship or residence

o

the parties. 28 U.S.C. § 1441(b).

This section 1441(b), arising under the Constitution, treaties, or laws

o

the United States, i

nearly identical to the language arises under the Constitution, laws, or Treaties o the United States,

which is

m:;ed

in Section

1331

o

Title 28, conferring federal question jurisdiction

on

the federa

courts. Therefore, it is appropriate to follow the general principles governing federal question

14

.

jurisdiction when determining removal jurisdiction. Page

v

Tri-City Healthcare Dist. 860

F

Supp

5

16

17

18

19

2

21

22

23

24

25

2fj

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28

2d 1154 (S.D. Cal. 2012).

Removal is proper only when a right created by the Constitution, a treaty, or other federal law

is an essential element o the plaintiffs properly pleaded claim for relief. Lippitt v Rayrrwnd James

Financial Services Inc.

340 F.3d 1033 (9th Cir 2003). In this case, neither federal law nor the U.S

Constitution is a necessary element

o

plaintiffs claims.

B

Definition of Arising Under

Article III, Section 2,

o

the Constitution provides that the judicial power

o

the United States

extends to cases arising under this Constitution, the Laws o the United States, and Treaties made, o

which shall be made, under their Authority. The meaning o arising under is the requirement tha

the plaintiffs well-pleaded complaint use federal law that is central to the dispute.

Empire

Healthchoice Assur. Inc.

v

McVeigh

547 U.S. 677, 699 (2006).


STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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Plaintiff pleads no specific federal law or Constitutional provision

as

the basis for any claim

The complaint reads: This action is brought to enforce the mandatory requirements o the Ordinances

and Personnel System o the City o Carmel-by-the-Sea, the Constitution and laws o the State o

California, and the mandatory duties o the City Council, the City Administrator and the City Human

Resources Director arising under those laws. Pleading: Preliminary Statement 1: 26-28. All seven

causes

o

action plead State based claims. Not a single cause o action is based on any federal law.

C The omplaint Pleads No Substantial Federal Question

Federal jurisdiction requires that a federal question be a substantial part o the case. The

substantiality requirement does not refer to the value

o

the interests that are at stake but to whethe

there

is

any legal substance to the position the may be plainly unsubstantial, either because it is

'obviously without merit' or because previous court decisions render it unsound and it cannot be

inferred that the federal question is the subject

o

controversy. A pleading that does not specify wha

laws were violated could be dismissed for failure to state a claim.

In Rains v. Criterion Systems Inc. 80 F.3d 339 (1996) the court held the district court had no

jurisdiction over a case where the plaintiff pled language similar to the complaint pled here but more

specifically mentioning Title VII.

Rains held the direct and indirect references to Title VII in those his state law causes o action

do

not make those claims into federal causes

o

action. Rather, the complaint merely incorporates

Title VII as one o several similar sources o public policy supporting defendant's state law claims. Id

In the pleading before us there is

no

legal theory connected to any federal statute or


STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

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Constitutional provision. As in Rains the Complaint references federal law as one

of

several source

of evidence of Defendants' arbitrary and capricious conduct sufficient to support an award o

attorney's fees under California law, which can be awarded by the court only

if

Plaintiff prevails in hi

state law claims. California Government Code section 800. That statute expressly provides a

California Government Code section 800(b

:

This section is ancillary only, and shall not be

construed to create a new cause of action . Each cause of action stated in the Complaint arises from

California statutes and Constitutional provisions. Each cause of action is independent from any

federal right or authority. Each is complete in and of itself without having to resort to federal law to

obtain relief. Even where a claim can be supported by alternative and independent theories one o

which is a state law t h o r ~ and one of which is a federal law theory federal question jurisdiction

does not attach unless federal law is an

essential

element of each claim.

Christianson

v.

Col

Industries Operating Corp. 486 U.S. 800 at 810, 108 S.Ct. 2166, at 2174, 100 L.Ed.2d 811 (1988)

D Defendant Cites Incorrect Removal Statute

Defendant incorrectly cites to 28 U.S.C. § 1441(b) as basis for removal to federal court. §

1441(b) is for removal based on diversity. Notice of Removal Cover Page,

1:

15-21. Parties are

citizens of the same state and therefore jurisdiction cannot be granted under this statute. Remova

then is improper. Traskv. Kasenetz 818 F. Supp. 39 (E.D. N.Y. 1993).

E Removal s Disfavored So The Exercise

f

Removal Jurisdiction Is Strictly

Construed

Am. Fire Cas. Co. v. Finn. 341 U.S.

6,

10, (1951). Abrego v. Dow

Chern.

Co. 443 F.3d

676, 685 (9th Cir. 2006). A removal statute must be strictly construed, with all doubts and

ambiguities resolved against removal and in favor of remand. Shamrock Oil Gas Corp. v. Sheets

313

U.S. 100,

108

(1941).

This strong presumption against removal demonstrates that the defendant has the burden o

establishing that removal is proper. Here, defendants incorrectly cite the removal statute and also d9


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not properly establish jurisdiction by stating facts that prove the claims in the pleading arise under a

specific federal law. Any ambiguity should compel an order remanding this matter to state court.

Dated:

~ >I

2014


~ ~ t / ~ 1 _ _

Michelle

A

Welsh



STATE COURT

CASE NO.: 5:14-CV-030084 (HRL)

8




1

2

3

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Michelle A. Welsh, SBN 84127


413 Forest A venue


Telephone: 831-373-1993

Facsimile: 831-373-1492


6 Attorneys for Plaintiff, Steven Mclnchak

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STEVEN MciNCHAK


v







inclusive,

Defendants.

CASE NO: 5:14-CV-03084 (HRL)


Hearing time: 10:00 am


Case No: Ml28 62

[PROPOSED] ORDER GRANTING

PLAINTIFF S MOTION TO REMAND



Trial Date: Not Set

Plaintiffs motion to remand this matter back to state court came on regularly for hearing on

September 30,2014, at 10:00 am a.m. in Courtroom 2 ofthe above entitled court, located at 280 S

First Street,

5th

Floor, San Jose, California, 95113. Plaintiff Steven Mcinchak appeared by counsel,

Phillip J Griego and defendants appeared by counsel Having read and

considered all the moving and opposing papers and points and authorities and having considered

oral argument

of

counsel;

ll

ll

[PROPOSED] ORDER GRANTING PLAINTIFF S MOTION TO REMAND

CASE NO.: 5:14-CV-030084 (HRL)




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IT IS HEREBY ORDERED that Plaintiff s motion to remand this case to the

Superior Court

of

California, Monterey County

IS

GRANTED on the grounds that the causes

of

action alleged in Plaintiff s complaint do not arise under The Constitution, Treaties or Laws of The

United States.

Dated: , 2014

Honorable Howard R Lloyd

United States District Court

Northern District

of

California

San Jose Facility

[PROPOSED]

ORDER GRANTING PLAINTIFF S

MOTION TO REMAND

CASE

NO :

5:14-CV-030084 (HRL)

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PROOF OF SERVICE

I, the undersigned, hereby declare that:

I

am

over the age of eighteen and not a party to the within cause. I

am

employed with

Phillip J. Griego at 95 South Market Street, Suite 520, San Jose, California, 95113, County of

Santa Clara. I am readily familiar with this firm s practice

of

collection and processing

of

correspondence for mailing, hand delivery, overnight mail/courier and facsimile transmission.

On August 1, 2014, I served:

•

•

•

NOTICE OF MOTION AND MOTION TO REMAND CASE

TO

STATE COURT

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF MOTION TO REMAND CASE TO STATE COURT


11 upon the following interested party( s)

in

said cause:

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Jeffrey Alan Dinkin, Allison Elizabeth Burns, David Charles Palmer

Stradling Y occa Carlson Rauth

660 Newport Center

Dr

Ste 1600

Newport Beach, CA 92660

VIA MAIL (CCP §§ 1013(a), 2015.5)

LX_] By placing a true copy thereof in a sealed envelope(s), addressed as above, and by

depositing a true copy thereof that same day in the United States Mail in San Jose, California,

with postage thereon fully prepaid, following ordinary business practices.

VIA OVERNIGHT MAIL/COURIER (CCP

§§

1013(c), 2015.5)

U

By placing a true copy thereof in a sealed envelope(s), addressed as above, and on

that date placing such for collection for overnight delivery by providing a true copy thereof with

an authorized courier and/or overnight mail carrier, with delivery fees paid or provided, for

ddivery on the following business day, following ordinary business practices.

VIA FACSIMILE (CCP

§§

1013(e), 2015.5, CRC 2008,

FRCP

Rule 5(e))

[ ]

By

arranging for the transmission(s

of

a true copy thereof, from facsimile

number (408)293-1959 to the facsimile number(s) noted above, prior to 5:00p.m. , that same day,

in the ordinary course of business. The transmission report confirms transmission was complete

and without error. The parties have agreed to service by facsimile.

VIA HAND-DELIVERY (CCP §§ 1011, 2015.5)

U

By

placing a true copy thereof

in

a sealed envelope( s), addressed as above, and

causing same to

be

hand-served by either

an

employee

of my

firm or a retained courier, with

delivery fees paid or provided, for delivery that same day, in the ordinary course of business.

I declare under penalty of perjury that the foregoing is true and correct under the laws of .

the State of California. Executed on August 1, 2014, at San Jose, California.

1 ,,

Case Number: 5:14-CV-03084 (HRL)

Prrof

of

Service

r

7 f/ .

A J J1itrfiL

Geri Colbath

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PROOF OF SERVICE

I, the undersigned, hereby declare that:

I

am

over the age

of

eighteen and not a party to the within cause. I am employed with

Phillip J.

Griego at

95

South Market Street, Suite 520, San Jose, California, 95113, County

of

Santa Clara. I am readily familiar with this firm s practice

of

collection and processing

of

correspondence for mailing, hand delivery, overnight mail/courier and facsimile transmission.

On August 1 2014, I served:

•

•

•

NOTICE OF MOTION AND MOTION TO REMAND CASE TO

STATE COURT

MEMORANDUM OF POINTS AND AUTHORITIES N SUPPORT

OF MOTION TO REMAND CASE TO STATE COURT


11 upon the following interested party(s) in said cause:

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

•

Jeffrey Alan Dinkin, Allison Elizabeth Burns, David Charles Palmer

Stradling Yocca Carlson Rauth

660 Newport Center Dr Ste 1600

Newport Beach, CA 92660

VIA MAIL (CCP

§§

1013(a), 2015.5)

[ ~ By placing a true copy thereof in a sealed envelope(s), addressed as above, and by

depositing a true copy thereof that same day in the United States Mail in San Jose, California,

with postage thereon fully prepaid, following ordinary business practices.

VIA OVERNIGHT MAIL/COURIER (CCP

§§

1013(c), 2015.5)

[ ] By placing a true copy thereof in a sealed envelope(s), addressed as above, and on

that date placing such for collection for overnight delivery by providing a true copy thereof with

an authorized courier and/or overnight mail carrier, with delivery fees paid or provided, for

ddivery on the following business day, following ordinary business practices.

VIA FACSIMILE (CCP

§§

1013(e), 2015.5, CRC 2008, FRCP Rule 5(e))

[ ] By arranging for the transmission( s)

of

a true copy thereof, from facsimile

number (408)293-1959 to the facsimile number(s) noted above, prior to 5:00p.m., that same day,

in the ordinary course ofbusiness. The transmission report confirms transmission was complete

and without error. The parties have agreed to service by facsimile.

VIA HAND-DELIVERY (CCP

§§

1011, 2015.5)

U

By

placing a true copy thereof in a sealed envelope(s), addressed as above, and

causing same to be hand-served by either an employee

of

my firm or a retained courier, with

delivery fees paid or provided, for delivery that same day, in the ordinary course ofbusiness.

I declare under penalty of perjury that the foregoing is true and correct under the laws of

the State ofCalifornia. Executed on August

1

2014, at San Jose, California.

. M. i u : ~ r t L

Geri Colbath

mcinchak notice of motion and motion to remand case to state court

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