ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

MANUEL L. REAL, District Judge.

Before the Court is Defendant Regina Wadsworth's Motion to Dismiss, filed on March 26, 2018, Defendant Beverly Gooch's Motion for Judgment on the Pleadings, filed on March 26, 2018, and Plaintiff's Motion to Remand, filed on April 9, 2018. (Dkts. 13, 15, 19). Having been thoroughly briefed by the parties, this Court took the matters under submission on May 3, 2018.

Plaintiff worked for Defendants as an airport baggage handler. On September 13, 2016, Plaintiff suffered serious burns after the radiator on a baggage tractor vehicle exploded. Plaintiff was hospitalized for two weeks. The day after the accident, September 14, 2016, Plaintiff filed a Workers' Compensation Claim. On that day, Defendant Wadsworth, Vice President for Los Angeles and West Region, discussed with her colleagues the fact that the incident had to be reported to the Occupational Safety and Health Division of the State of California ("OSHA"). On September 30, 2016, Defendant Wadsworth received a letter informing her that Plaintiff was represented by an attorney with respect to his personal injuries and breach of privacy claim arising from employees allegedly sharing photos of Plaintiff's accident.

OSHA investigated the incident from September 30, 2016 to January 4, 2017. OSHA interviewed Plaintiff on October 17, 2016. Plaintiff told OSHA that he had noticed the vehicle was steaming and looked at his crew chief "funny" as a way of asking, "Is this normal?" The crew chief told him to "keep going" and then the vehicle exploded. Plaintiff also told OSHA that he knew the vehicle to have problems, and he heard that it was not supposed to be running. Plaintiff reported that the thermometer dial on the dash was not working. This interview was provided to Defendants. On January 4, 2017, OSHA issued a citation to Defendant Envoy Air for failing to ensure that defective equipment was not used. OSHA recommended a fine of $18,000.00.

Plaintiff returned to work on December 13, 2016. Upon his return, Plaintiff was placed on light duty. He was assigned to do equipment and vehicle inspections. Plaintiff "noticed that things had changed" at this time. Plaintiff called in sick to work on December 28-29, 2016, and January 17, 2017. On January 18, 2017, Plaintiff's supervisor counseled him regarding keeping scheduled medical appointments. On January 19, 2017, Plaintiff's supervisor counseled him again, this time regarding his attendance. She issued a first written warning to Plaintiff and encouraged him to strive for the company's expectation of perfect attendance. On January 25, 2017, Defendant Wadsworth and other representatives from Envoy met with Plaintiff to discuss the accident. Plaintiff alleges that, during the meeting, Defendants attempted to "coerce a statement" from Plaintiff regarding the September accident. Plaintiff further alleges that he "advised Defendants he had spoken with his attorney, who indicated that the contact was improper, and [Plaintiff] could not give a statement at that time." Plaintiff alleges that he "felt like he was being interrogated, attacked, and it was coercive." Wadsworth told Plaintiff that he would be terminated if he refused to cooperate in the investigation. Plaintiff refused to discuss the accident. Wadsworth escorted him from the conference room to her office. Plaintiff alleges that Wadsworth "was not going to let him call his attorney again" and "he could not leave the room until he talked." When he refused again, Wadsworth fired him.

Plaintiff alleges that Wadsworth is liable for the following defamatory statements. On February 1, 2017, Wadsworth published to Jerald McBrayer, John Jaynes, Beverly Gooch, and Lori Harding that Plaintiff had engaged in "insubordination" and refused to cooperate in an investigation. Envoy's Rules of Conduct define insubordination as refusing to follow a directive from a manager. Plaintiff alleges that Wadsworth published the same information to Jerald McBrayer, Beverly Gooch, Mary Guernsey, Paula Cooper, Steven Collins, Ali Rizvi, Lucy Harris, and Lori Harding via email on January 30 and 31, 2017. Plaintiff further alleges that Wadsworth published to Christopher Pappaioanou that Plaintiff had violated Envoy's Guiding Principles by failing to comply with work rules and giving less than best effort. All of the statements were published only to Envoy employees.

Plaintiff filed his original Complaint against Defendants American Airlines Group, Inc., Envoy Air Inc., and Beverly Gooch in Los Angeles Superior Court. Plaintiff filed his First Amended Complaint ("FAC") on April 13, 2017. Plaintiff filed a Doe Amendment for Defendant Regina Wadsworth on March 3, 2018. Plaintiff is a resident of California. Defendants American Airlines and Envoy Air are residents of Delaware, and Defendants Gooch and Wadsworth are residents of California. Defendants removed the case on the basis of diversity jurisdiction, alleging that Plaintiff fraudulently joined Defendants Gooch and Wadsworth in order to defeat diversity jurisdiction. Plaintiff moves to remand.

A defendant may remove a civil action from state court if the action could have originally been filed in federal court. 28 U.S.C. § 1441(a). An action that meets the requirements of 28 U.S.C. § 1332 could have originally been filed in federal court. "Section 1332 requires complete diversity of citizenship; each of the plaintiffs must be a citizen of a different state than each of the defendants." Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).

"[O]ne exception to the requirement of complete diversity is where a non-diverse defendant has been fraudulently joined." Id. "Joinder of a non-diverse defendant is deemed fraudulent, and the defendant's presence in the lawsuit is ignored for purposes of determining diversity, if the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state." Id. "Demonstrating fraudulent joinder, however, requires more than merely showing that plaintiff has failed to state a claim for relief." Mireles v. Wells Fargo Bank, N.A., 845 F.Supp.2d 1034, 1063 (C.D. Cal. 2012). "In the Ninth Circuit, a non-diverse defendant is deemed to be fraudulently joined if, 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." Id. (emphasis in original). "Defendants must show that the relevant state law is so well settled that plaintiff would not be afforded leave to amend his complaint to cure the purported deficiency." Id.

Plaintiff alleges causes of action against non-diverse Defendants Gooch and Wadsworth for defamation, disability harassment, and intentional infliction of emotional distress. The issue here is whether there is a "non-fanciful possibility that plaintiff can state a claim under California law against the non-diverse defendants." Musacco v. Old Dominion Freight Line, Inc., 2017 WL 3037399, at *2 (C.D. Cal. July 18, 2017). "Merely showing that an action is likely to be dismissed against a defendant does not demonstrate fraudulent joinder. Rather, it must appear to `a near certainty' that joinder was fraudulent." Amarant v. Home Depot U.S.A., Inc., 2013WL 3146809, at *6 (E.D. Cal. June 18, 2013). In Plaintiff's motion, he concedes that Gooch "should be dismissed" as a defendant because discovery revealed that Wadsworth, not Gooch, was the "main bad actor." With that in mind, the Court will only assess fraudulent joinder as to Wadsworth.

To prove defamation under California law, a "plaintiff must show that the defendant published a false, defamatory, and unprivileged statement that had a natural tendency to injure or that caused special damage." Johnson v. Wells Fargo & Co., Inc., 2014 WL 6475128, at *6 (C.D. Cal. Nov. 19, 2014). Under California Civil Code § 47(c), "a defendant who makes a statement to others on a matter or common interest is immunized from liability for defamation so long as the statement is made without malice." Id.

Defendants argue that Plaintiff's defamation claim against Wadsworth fails because the statements alleged are both privileged and true. Employer's statements to employees regarding the reasons for termination of another employee are generally privileged. King v. UPS, 152 Cal.App.4th 426, 440-41 (2007). However, statements made with actual malice are not privileged under § 47(c). Johnson, 2014 WL 6475128, at *8. Actual malice is established by "showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights." Noel v. River Hills Wilsons, Inc., 113 Cal.App.4th 1363, 1370 (2003). "The fact that a communication is motivated by more than just the desire to protect the common interest on which the privilege is based will support a finding of malice." Berger v. Harley Ellis Devereaux, 2008 WL 10610129, at *10 (C.D. Cal. June 6, 2008). On remand, Plaintiff's "burden is not to rebut the privilege, but rather merely to raise the possibility that [he] may be able to rebut that privilege in state court." Sanchez v. Lane Bryant, 123 F. sup. 3d 1238, 1244 (C.D. Cal. 2015).

Here, Plaintiff alleges that Wadsworth and Envoy were both aware of the statements he made to OSHA during OSHA's investigation, and they were also aware that he was represented by counsel. Plaintiff also alleges that Wadsworth terminated Plaintiff in order to force him to give a statement against his interest about the September 2016 accident, even though she and Envoy were aware that he was represented by counsel in the matter. If true, these allegations may support a finding of actual malice. A California court may find that Wadsworth's statements were motivated by "more than just a desire to protect the common interest," and they were in fact retaliatory or motivated by ill-will towards Plaintiff. Even if the claim is deficient, Plaintiff would most likely be granted leave to amend. See, e.g., Harris v. City of Santa Monica, 56 Cal.4th 203, 240 (2013). Therefore, Plaintiff has stated sufficient facts to plead malice in the fraudulent joinder context.

Defendant also argues that Plaintiff's defamation claim fails because Wadsworth's statements were true. "To ascertain whether the statements in question are provably false factual assertions, courts consider the totality of the circumstances. First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense . . . This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed." Reed v. Gallagher, 248 Cal.App.4th 841, 856 (2016).

In this case, Plaintiff alleges that he was defamed when Wadsworth called him `insubordinate' in multiple communications to other Envoy employees. Defendants argue that Plaintiff was not defamed because Wadsworth made a true statement that he had been insubordinate. Defendants note that Envoy's Rules of Conduct define insubordination as refusing to follow a directive from a manager. However, it is not incontrovertibly true that Plaintiff was insubordinate, as understood in common usage. In this case, Plaintiff's managers called him to a meeting to discuss the September 2016 accident and Plaintiff refused to participate. He refused to participate because he was suing the company over the accident, and he did not want to make any statements without his attorney present. Defendants, moreover, were aware that he was represented in relation to the accident, and Defendants' counsel, which Plaintiff alleges was present at the meeting, should be aware of the prohibition on contact with represented parties over the subject of the representation. See California Rules of Prof. Conduct 2-100. Based on Plaintiff's allegations, the questioning itself was probably improper because it was about the very accident that Plaintiff was suing over. Nonetheless, after Plaintiff refused to make a statement, he was fired, and Wadsworth published that he was insubordinate.

Merriam-Webster's Dictionary defines "insubordinate" as "disobedient to authority," and synonyms include "contrary," "defiant," "rebellious," and "wayward." The word clearly has negative connotations, and it suggests that Plaintiff refuses to follow directions, whether or not his refusal is justified. The people to whom the alleged defamation was published do not know the full facts of the situation, and saying that Plaintiff was "insubordinate" suggests that he is a substandard employee with problems following authority, when the simple truth is that he did not make a statement regarding the accident that he probably should never have been asked to make. Accordingly, Plaintiff could conceivably recover on a defamation claim.

Defendants also argue that Plaintiff's defamation claim against Wadsworth is barred by the statute of limitations. The statute of limitations on defamation claims is one year. Cal. Code Civ. Pro. § 340(c). Here, the last defamation Plaintiff alleges occurred on February 1, 2017. On February 23, 2018, just over one year after filing the Complaint, Plaintiff amended the Complaint to substitute Wadsworth's real name for a "Doe" defendant.

California Code of Civil Procedure § 474, which authorizes the use of fictitious names, provides that "[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly." This section has been construed liberally by courts. "The words `ignorant of the name of a defendant' are construed broadly to include other kinds of ignorance which explain the failure to name a person as a defendant until sometime later. Even a person whose identity was known to the plaintiff when the action was filed may be brought in under section 474 as a `Doe' defendant if the plaintiff was initially unaware of that person's true relationship to the injuries upon which the action was based." Miller v. Thomas, 121 Cal.App.3d 440, 444-45 (1981).

In this case, Plaintiff's amendment was proper. Although Wadsworth was mentioned by name in the original FAC, it was completely unknown to Plaintiff that she was the true bad actor and ultimate publisher of the alleged defamatory statements. At the time Plaintiff filed the Complaint and FAC, he believed that Gooch published the statements about him. It was only through the discovery process that Plaintiff discovered it was Wadsworth, and not Gooch, who was the proper defendant here. Therefore, even though Plaintiff knew Wadsworth's identity at the time the action was filed, he may still bring her in as a Doe defendant because he was unaware of her true relationship to his claim for defamation. Because the amendment was proper, Plaintiff's claim is not barred by the statute of limitations.

The Court finds that Plaintiff states a viable claim for defamation under California law against non-diverse Defendant Wadsworth. Accordingly, there is not complete diversity between the parties, and this Court has no jurisdiction to hear the case.

IT IS HEREBY ORDERED that Plaintiff's Motion to Remand is GRANTED. (Dkt. 19).

IT IS FURTHER ORDERED that Defendant Regina Wadsworth's Motion to Dismiss is MOOT. (Dkt. 13).

IT IS FURTHER ORDERED that Defendant Beverly Gooch's Motion for Judgment on the Pleadings is MOOT. (Dkt. 15).