govinfo:USCOURTS-casd-3_26-cv-01111-0

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
SARA RUIZ, 
Plaintiff, 
v. 
MACY’S, INC.; MARISOL LOPEZ; and 
DOES 1 to 50, Inclusive, 
Defendants. 

 
ORDER GRANTING PLAINTIFF’S 
MOTION TO REMAND 
 
[ECF No. 8] 
 
 This case involves injuries sustained by Plaintiff Sara Ruiz (“Plaintiff”) due to 
allegedly unsafe escalator conditions at a Macy’s retail store. ECF No. 8, at 3. Before the 
Court is Plaintiff’s Motion to Remand. See ECF No. 8. Defendants Macy’s Retail Holdings, 
LLC (“Macy’s”) and Schindler Elevator Corporation (“Schindler”) have filed an 
opposition to Plaintiff’s Motion, ECF No. 18, and Plaintiff has filed a reply, ECF No. 21 . 
The Court finds that the matter is appropriate for decision without oral argument pursuant 
to Civil Local Rule 7.1(d)(1) and VACATES the hearing set for June 26, 2026. 
For the reasons set forth below, the Court concludes that Defendants have not met 
their burden of demonstrating fraudulent joinder and that complete diversity is therefore 
lacking. Accordingly, the Court GRANTS Plaintiff’s Motion to Remand. 
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BACKGROUND 
This is a premises liability action arising from an allegedly dangerous escalator 
condition at a Macy’s retail location. ECF No. 8, at 3. On March 25, 2025, Plaintiff filed 
her initial Complaint against Defendants Macy’s, Marisol Lopez (“Lopez”), and Doe 
Defendants 1 through 50 in San Diego County Superior Court. ECF No. 1 at 2 .1 Plaintiff 
subsequently filed an Amended Complaint on April 7, 2025, alleging causes of action for 
general negligence and premises liability arising from injuries she allegedly sustained on 
an escalator in a Macy’s store. Id.; See ECF No. 1-2, at 2-4. 
The parties do not dispute that Lopez was employed by Macy ’s at the time of the 
incident. See ECF No. 1 at 3; ECF No. 8 at 3. Although Plaintiff’s state court complaint is 
a form complaint and does not contain specific allegations regarding Lopez ’s role in the 
incident, ECF No. 1 -2 at 2 -4, Plaintiff contends in support of remand that Lopez was 
involved in store operations and safety and was responsible for guarding the escalators and 
placing barricades, caution signs, or “out of order” warnings to prevent customers from 
using unsafe equipment. ECF No. 8 at 3. Plaintiff further asserts that Lopez had notice of 
issues with the escalator and failed to take reasonable steps to prevent patrons from using 
it. Id. Plaintiff notes that she could amend her complaint to include these additional 
allegations if necessary. Id. at 6-7. 
On August 7, 2025, Macy ’s answered Plaintiff’s Amended Complaint. ECF No. 1 
at 2 . On November 21, 2025, Plaintiff again amended her complaint to add Schindler 
Elevator Corporation (“Schindler”) as a defendant. Id. Schindler filed its answer on January 
12, 2026. Id. at 3, 10. On January 23, 2026, Plaintiff served a Statement of Damages 
 
1 Page numbers are based on the CM/ECF pagination. 
 
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seeking $108,630.03 in medical expenses, $300,000 in pain and suffering damages, and 
$150,000 in emotional distress damages. Id. at 3, 10. 
On February 20, 2026, Macy’s and Schindler removed the action to this Court based 
on diversity jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441. Id at 5-6. Defendants 
contend that Defendant Lopez’s California citizenship should be disregarded because she 
was fraudulently joined. Id. at 3 -4. Plaintiff moves to remand, arguing that complete 
diversity is lacking because both Plaintiff and Lopez are California citizens and Defendants 
have failed to establish fraudulent joinder. See generally ECF No. 8. 
LEGAL STANDARD 
“Only state court actions that originally could have been filed in federal court may 
be removed to federal court by the defendant.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 
392 (1987); 28 U.S.C. § 1441(a) . Removal is governed by 28 U.S.C. § 1441 et seq. The 
removal statutes are to be “strictly construe[d] ... against removal jurisdiction,” and the 
removing party “always has the burden of establishing that removal was proper.” Gaus v. 
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if 
there is any doubt as to the right of removal in the first instance.” Id. 
“[J]urisdiction founded on [diversity] requires that parties be in complete diversity 
and the amount in controversy exceed $75,000.” Matheson v. Progressive Specialty Ins. 
Co., 319 F.3d 1089, 1090 (9th Cir. 2003); 28 U.S.C. § 1332(a)(1). Complete diversity 
requires that the plaintiff ’s citizenship is diverse from that of each named defendant. 28 
U.S.C. §§ 1332(a)(1), 1332(c)(1); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 
A district court may disregard a non-diverse party named in the state court complaint 
and retain federal jurisdiction if the non -diverse party is joined as a sham defendant or if 
the joinder is fraudulent. McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 
1987). Joinder is deemed fraudulent if the plaintiff fails to state a cause of action against 
the non-diverse defendant, and that “failure is obvious according to the settled rules of the 
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state.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998) (quoting 
McCabe, 811 F.2d at 1339). 
Although the Court may consider evidence beyond the pleadings in evaluating 
fraudulent joinder, all disputed questions of fact and ambiguities in the controlling state 
law must be resolved in Plaintiff's favor. Calero v. Unisys Corp. , 271 F. Supp. 2d 1172, 
1176-77 (N.D. Cal. 2003). Fraudulent joinder is established only if the defendant shows 
that the non-diverse defendant “cannot be liable on any theory.” Ritchey, 139 F.3d at 1318. 
Thus, “if there is a possibility that a state court would find that the complaint states a cause 
of action against any of the resident defendants, the federal court must find that the joinder 
was proper and remand the case to the state court.” Grancare, LLC v. Thrower by & 
through Mills, 889 F.3d 543, 549 (9th Cir. 2018) (quoting Hunter v. Philip Morris USA , 
582 F.3d 1039, 1046 (9th Cir. 2009)) (emphasis in original). A defendant invoking federal 
diversity jurisdiction on the basis of fraudulent joinder bears a “heavy burden” in light of 
the “general presumption against fraudulent joinder.” Hunter, 582 F.3d at 1046. 
Although the fraudulent joinder inquiry “shares some similarities with the analysis 
under Rule 12(b)(6),” the two standards “are not equivalent.” Grancare, 889 F.3d at 549. 
“A claim against a defendant may fail under Rule 12(b)(6), but that defendant has not 
necessarily been fraudulently joined.” Id. Indeed, “[i]f a defendant cannot withstand a Rule 
12(b)(6) motion, the fraudulent inquiry does not end there.” Id. at 550. Rather, the court 
must consider “whether a deficiency in the complaint can possibly be cured by granting 
the plaintiff leave to amend.” Id. 
In making this determination, “[t]he court ’s job is not to determine whether the 
plaintiff will actually or even probably prevail on [the] merits of his claim, but rather to 
evaluate whether there is any possibility plaintiff may do so.” Archuleta v. Am. Airlines, 
Inc., No. CV 00 -1286 MMM-SHX, 2000 WL 656808, at *4 (C.D. Cal. May 12, 2000). 
Thus, a non-diverse defendant is deemed a sham or fraudulently joined defendant only if, 
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“after all disputed questions of fact and all ambiguities in the controlling state law are 
resolved in the plaintiff ’s favor, the plaintiff could not possibly recover against the party 
whose joinder is questioned.” Padilla v. AT&T Corp., 697 F. Supp. 2d 1156, 1159 (C.D. 
Cal. 2009) (citing Kruso v. Int'l Tel. & Tel. Corp. , 872 F.2d 1416, 1426 (9th Cir. 1989)) ; 
Bear Valley Family, L.P. v. Bank Midwest, N.A., No. ED CV 10-905, 2010 WL 3369600, 
at *2 (C.D. Cal. Aug. 23, 2010) (stating that there is a presumption against fraudulent 
joinder, and any ambiguity of law or fact must be resolved in favor of remand). 
The removing party bears the burden of proving a defendant has been fraudulently 
joined “by clear and convincing evidence.” Hamilton Materials, Inc. v. Dow Chem. 
Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 
DISCUSSION 
The parties do not dispute that Plaintiff Sara Ruiz and Defendant Marisol Lopez are 
both citizens of California. ECF No. 1 , at 4 -5; ECF No. 8 at 4. Defendants remove this 
action on the theory that Defendant Marisol Lopez ’s citizenship should be disregarded 
because she was fraudulently joined. ECF No. 1 at 3 -7.2 Accordingly, removal is proper 
only if Defendants establish fraudulent joinder. See Grancare, 889 F.3d at 548. Defendants 
argue that Lopez was fraudulently joined because Plaintiff has not alleged facts showing 
that Lopez owned, controlled, maintained, or repaired the escalator and because any duty 
Lopez owed to Plaintiff arose solely from her employment with Macy’s. ECF No. 18 at 4-
5. Defendants contend that Plaintiff’s allegations regarding Lopez’s responsibility for store 
safety and warning procedures are speculative and unsupported. Id. at 5. The Court is not 
persuaded. 
 
2 Defendants devote substantial portions of their opposition to the timeliness of removal 
and whether Plaintiff should be granted leave to amend. See ECF No. 18 at 6-10. Because 
the Court concludes that Defendants have failed to establish fraudulent joinder, and thus 
complete diversity is lacking, the Court need not reach those issues. 
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Under California law, “[t]he elements of a negligence claim, and a premises liability 
claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting 
in injury.” Kesner v. Superior Ct. , 1 Cal. 5th 1132, 1158 (2016). Premises liability is 
grounded in possession and control of the premises, and “ control is defined as the power 
to prevent, remedy or guard against the dangerous condition.” Colonial Van & Storage, 
Inc. v. Superior Ct. , 76 Cal. App. 5th 487, 497 (2022) ( internal quotations and citations 
omitted). 
Defendants’ argument that Lopez cannot be liable because she acted within the 
course and scope of her employment is not sufficient to establish fraudulent joinder. 
California law recognizes that an employee may be held personally liable for his or her 
own tortious conduct regardless of whether the employer may also be liable. Frances T. v. 
Village Green Owners Assn., 42 Cal. 3d 490, 505 (1986) ( “An agent is liable for his own 
acts, regardless of whether the principal is liable or amenable to judicial action. ”). 
Moreover, respondeat superior is “a doctrine of imputed liability, not a doctrine of 
immunity.” Amado v. Home Depot U.S.A., Inc. , No. 1:24 -cv-606-JLT-HBK, 2025 WL 
309632, at *6 (E.D. Cal. Jan. 27, 2025) (quoting Revay v. Home Depot U.S.A., Inc. , No. 
2:14-cv-03391-RSWL-ASx, 2015 WL 1285287, at *4 (C.D. Cal. Mar. 19 , 2015)). Thus, 
the fact that Macy’s may ultimately be liable for Lopez’s conduct does not foreclose the 
possibility of individual liability. 
In Amado v. Home Depot U.S.A. Inc., the plaintiff brought negligence and premises 
liability claims against Home Depot and a non -diverse store manager after allegedly 
tripping over pipes in the store’s garden department. 2025 WL 309632, at *1. Home Depot 
argued that the manager was fraudulently joined because she acted within the course and 
scope of her employment and because Home Depot would be liable for any negligence by 
its employee. Id. at *4 -6. The court rejected that argument, concluding that the plaintiff 
was “entitled to pursue claims against [the employee] individually” and that the manager’s 
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potential indemnification by Home Depot was “not a bar to litigation against individual 
employees,” Id. at *5-6. The court further found that, although the allegations against the 
manager lacked specificity, they were not “plainly lacking in merit” and therefore did not 
establish fraudulent joinder. Id. at *5. Other courts confronting similar premises liability 
actions have likewise rejected fraudulent joinder arguments where defendants disputed a 
non-diverse store manager ’s control, knowledge, or personal involvement in the alleged 
dangerous condition . See Murdock v. Costco Wholesale Corp. , No. EDCV 25 -02200-
MWF-MBK, 2025 WL 2985227, at *3 (C.D. Cal. Oct. 22, 2025); Berryhill v. Costco 
Wholesale Corp., No. 2:23 -cv-00315-WBS-AC, 2023 WL 3302869, at *2 -3 (E.D. Cal. 
May 8, 2023); Nieves v. Costco Wholesale Corp. , No. 3:22 -cv-00977-JD, 2022 WL 
5199904, at *3 (N.D. Cal. Oct. 5, 2022). 
The facts here are analogous to those in Amadao and similar cases. Plaintiff argues 
in her motion that Lopez was “responsible for store operations and safety ” and “was 
responsible for guarding the escalators and placing barricades, caution signs, or ‘out of 
order’ warnings to prevent customers from using unsafe equipment .” ECF No. 8 at 6. 
Plaintiff further argues that “Lopez had notice of issues with the escalator yet failed to take 
reasonable steps to prevent patrons from using it .” Id. As in Amado and the cases cited 
above, Defendants dispute Lopez ’s control, knowledge, and personal involvement. But 
those arguments go to the merits of Plaintiff’s claims and do not establish that Lopez cannot 
possibly be liable under any theory recognized by California law. At this stage, the Court 
must resolve all factual disputes and ambiguities in Plaintiff’s favor. Calero, 271 F. Supp. 
2d at 1176-77. 
The fact that Plaintiff’s claims against either Macy’s or Ms. Lopez as currently pled 
in the state court form complaint may be deficient also does not support a finding of 
fraudulent joinder. See ECF No. 1-2 at 2-4. Fraudulent joinder is not established where the 
deficiency could possibly be cured through amendment. Grancare, 889 F.3d at 550. 
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Plaintiff could conceivably amend her complaint to allege additional facts such as those 
included in Plaintiff’s current motion, including allegations regarding Lopez ’s 
responsibilities, knowledge of escalator conditions, involvement in warning procedures, or 
failure to restrict customer access. Defendants have not shown that such amendment would 
be impossible or futile under settled California law. 
Accordingly, the Court concludes that Defendants have failed to satisfy their heavy 
burden of demonstrating that Lopez was fraudulently joined. Because Lopez’s citizenship 
must be considered for purposes of diversity jurisdiction, complete diversity is lacking, and 
remand is required. 
CONCLUSION 
For the reasons set forth above, the Court concludes that Defendants Macy’s and 
Schindler have not established that Defendant Marisol Lopez was fraudulently joined. 
Because Plaintiff Sara Ruiz and Defendant Marisol Lopez are both citizens of California, 
complete diversity is lacking, and this Court does not have subject matter jurisdiction under 
28 U.S.C. § 1332. 
Accordingly, the Court GRANTS Plaintiff’s Motion to Remand. Pursuant to 28 
U.S.C. § 1447(c), the Court REMANDS this action to the Superior Court of California, 
County of San Diego. The hearing set for June 26, 2026, is VACATED. 
IT IS SO ORDERED. 
Dated: June 16, 2026 
 
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