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MARGARITA FRIAS
4940 Siesta Drive
Oceanside CA 92056
760-941-5924
Plaintiff

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

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MARGARITA FRIAS

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Plaintiff,
v.
VIASAT INC., SCOTT E. HANNUM
PRODUCTION SUPERVISOR FOR
VIASAT; HUMAN RESOURCE
SPECIALIST CANDICE BRENNER,
CAREY GUYETTE MANUFACTURING
ENGINEERING TECH DOE 1-100

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Defendants,

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Case No. 16CV1610 MMA JMA

[Superior Court of the State of California,
County of San Diego North County Division
Case No. 37-2016-00017070-CU-WT-NC]
Related Case Margarita Frias v. ViaSat, Inc.,
Workers Compensation Appeals Board
Case No. ADJ9883327 Filed: July 8, 2015
PLAINTIFF MARGARITA FRIAS
REPLY TO DEFENDANT VIASAT
OPPOSTION TO PLAITIFFS MOTION
TO REMAND TO STATE COURT

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Judge :
Date :
Time :
Crtrm :

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Complaint filed on 06/23/2016

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Hon. Michael M. Anello

08/01/2016
2:30 p.m.
3A

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Plaintiff Margarita Frias respectfully asks this Court to remand this cause to the Superior

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Court of the State of California, County of San Diego North County Division Case NO. 37-2016-

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00017070CU-WT-NC pursuant to 28 U.S.C. 1447. Because defendant ViaSat Inc., has its

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principal place of business in California, all Defendants including Plaintiff reside in California

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county of San Diego. Removal is improper under 28 U.S.C. 1331 and 28 U.S.C. 1441(a).

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Preliminary Statement
As Plaintiff Margarita Frias stated and now restates that initially the action was filed and
Adjoined with the Workers Compensation action Case No. ADJ9883327 Filed: July 8, 2015.
Initially filed under Employment Discrimination Benefits Pursuant to California Labor Code
PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS
MOTION TO REMAND TO STATE COURT
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132 (a);1 which Plaintiff Margarita Frias applied for benefits and penalties. However Plaintiff

could not recover her complete damages in the Workers Compensation Appeals Board and the

appeals board did not allow for attorney fees under 132 (a)2. Therefore, plaintiff moved her

132 (a) claim pursuant to L.C. 5310 & WCAB Rule 10843 and Amended her Complaint

under the Fair Employment Housing Act FEHA to the State of California Superior Court of San

Diego North County Division because her claims are under the Fair Employment Housing Act

case number Case No. 37-2016-00017070-CU-WT-NC].

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Plaintiff declares in her filed Complaints, as a result of the injuries suffered by ViaSat and its
agents wrongful acts and conduct, plaintiff Margarita Frias is entitled to temporary disability

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indemnity and permanent disability in an amount to be determined, severance pay, medical and

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future surgeries compensation, lost wages, future wages, bonuses, lost seniority and loss of other

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employment benefits of a value to be determined along with pain and suffering, and punitive and

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exemplary damages.

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The California Superior Court of California County of San Diego North County Division is

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where all of the Defendants reside including Plaintiff. When Plaintiff filed the Removal

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Application she was not shopping for forum rather to move the remaining claims to the court of

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proper venue and jurisdiction over the plaintiffs remaining claims under Fair Employment

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Housing Act FEH3A.4

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California Labor Code Section 132(a), which provides as follows: Any employer who discourages, or
threatens to discharge, or in any manner discriminates against any employee because he or she has
fileda claim for compensationis guilty of misdemeanor and employees compensation shall be
increased by one half
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The California Workers Compensation Appeals Board only allowed $ 10,000 dollars in damages.
Plaintiff Severance Package alone was $ 17,000.
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In the City of Moorpark, the Court stated conclusively we hold that section 132a does not provide an
exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful
discharge remedies. We disapprove any cases that suggest otherwise. (18 Cal.4th at 1158 (emphasis
added).) City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143.
4 Article XIV, section 4 of the California Constitution guarantees that injured workers will be adequately
compensated for their injuries. It also requires that the Legislature ensure that the workers compensation
system accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance
of any character (Cal. Const., Art. XIV, 4.) The California Constitution, Article XIV, 4, requires that
all workers compensation proceedings be determined expeditiously and without encumbrance.
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PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS

MOTION TO REMAND TO STATE COURT
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Plaintiffs Causes of Action Do Not Arise Under

The US Laws or Treaties of the United States
Defendant ViaSat removed this case from the California State Court under based on 28

U.S.C. 1331, The district court shall have original jurisdiction of all civil actions arising under

the Constitution, laws, or treaties of the United States. ViaSat claims are simply flawed since

Plaintiff filed all of her causes of actions under The California Fair Employment and Housing Act

(FEHA) which is supported and allied by the ADA but the FEHA offers more protections for

victims of wrongful acts and discrimination against them in the State of California.

Viasat also removed Plaintiffs complaint from state court based on 28 U.S.C. 1441(a).

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GENERALLY.Except as otherwise expressly provided by Act of Congress, any civil action

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brought in a State court of which the district courts of the United States have original jurisdiction,

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may be removed by the defendant or the defendants, to the district court of the United States for

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the district and division embracing the place where such action is pending.

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Under the forum-defendant rule in 28 U.S.C. 1441(b), a case cannot be removed if an in-state

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Defendant has been joined and served even if complete diversity otherwise exists.

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Generally speaking, 28 U.S.C. 1441 through 1452, govern the procedure for removal.

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Removal is a statutory privilege, rather than a right, and the removing party must comply with

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the procedural requirements mandated in the statute when desirous of availing the privilege.

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After a case has been removed from state to federal court, the non-removing party may move for

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remand . . . . on the grounds that the removing party has failed to comply with the statutory

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requirements for removal. Section 1447(c) of Title 28 of the United States Code authorizes

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remand if a procedural defect in the removal of the case exists. Due to the limitations on federal

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court jurisdiction, the Eleventh Circuit favors remand of removed cases where federal jurisdiction

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is not absolutely clear.

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If the employees workplace injury constitutes a disability under the FEHA, a claim for wrongful
termination based on the FEHA disability may be brought in court, as made clear by Moorpark. (City of
Moorpark, 18 Cal.4th at 1158.)

PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS

MOTION TO REMAND TO STATE COURT
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Viasat Contention That Their Agents Were Not Properly Served With
The Summons and Complaint Is Simply Misguided

Defendant ViaSats document submitted to this court entitled, Defendant ViaSat, Incs

Notice of Removal to Federal Court Under 28 U.S.C. 1331 and 1441 (a), page 2 paragraph 1-

6 gives ViaSat chronological order of the service of the summons and complaint states:

1. Complaint filed on May 23, 2016

2. On May 25, 2016 ViaSat Registered Agent for Service Process was served with the copy

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of the Summons and Complaint, and Civil Case Cover Sheet.

3. May 25, 2016 ViaSat was served with two other documents, respectively titled, Notice of

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Removal from Workers Compensation Appeals Board for Wrongful Termination of

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Complaint and Application for Removal. (see Exhibit 1)

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The declaration of Due Diligence of Silvia Peters (see Exhibit 2). States, On Monday May

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23rd 2016 on or about 11:15 a.m to 11:20 a.m Merissa Estala (witness Ryan Peters and Silvia

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Peters), went to ViaSat Inc. located at 6155 El Camino Real Carlsbad CA 92009 to serve 1.-

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Notice of Removal. 2.- Removal Request. and 3.- Second Amended Complaint, 4.- summons, and

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5.- Cover Sheet to ViaSat Inc., and its defendants. Two gentlemen in the reception desk stated that

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Viasat would not accept the moving documents and asked Silvia Peters to call 1-888-690-2882 for

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instructions. While at the desk Silvia Peters called the 1-888-690-2882 number. (see exhibit 3)

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She spoke (over the phone) with agent named Monique who instructed Silvia Peters to mail the

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claim to Travelers Saint Paul 2710 Gateway Oak Dr. Suite 150 N. Sacramento CA 95833.

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While at the post office located at 1700 Aviara Pkwy, Carlsbad, CA 92011, Silvia Peters once

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again called Travelers Saint Paul and agent Andrew answered. Silvia Peters asked to verify the

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address and name of the party where the documents should be addressed to. Andrews gave Silvia

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Peters the same name and address as: ViaSat Inc. 2710 Gateway Oak Dr. Suite 150 N.

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Sacramento CA 95833. The above mentioned documents were sent to this address.

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Silvia Peters and Ryan Peters went back at 4:00 p.m. 2016 to serve Candice Brenner, Scott

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Hamilton and Carey Guyette on Building 6, on Tuesday May 24, 2016 at 6155 El Camino Real

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Carlsbad CA 92009. The parties were not present at that time.

PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS

MOTION TO REMAND TO STATE COURT
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Silvia Peters went back on Wednesday May 25, from 11:45 to 12:00 to see if the individuals

walked out of the building at their lunch time. The parties were not found, at 12:00. Silvia drove

to the gym around the corner where Viasat employees frequent at lunch time. Viasat employees

Candice Brenner, Scott Hamilton and Carey Guyette were not found.

On Thursday May 26, 2016 Silvia went to ViaSat Corporate office located at 6155 El Camino

Real Carlsbad CA 92009 and she left the documents: 1.- Notice of Removal. 2.- Removal Request.

and 3.- Amended Complaint, 4.- summons, and 5.- Cover Sheet to at the desk with

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Defendant ViaSat paragraph 2-claiming that, ViaSat Registered Agent for Service of Process
was served sounds like Silvia Peters went to the ViaSat building and personally served the
documents or that ViaSat had a legal department at the El Camino Real Carlsbad building.
In fact as the declarations of Merissa Estala, Ryan Peters and Silvia Peters (see Declarations)

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who were all present, state that Silvia Peters asked the front desk employees for Defendant

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Candice Brenner, Carey Guyette and Scott Hannum so that they could come and pick up the

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documents. Further Silvia Peters asked for the Agent of Service of ViaSat. One of the clerks said,

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we dont have a legal department and we cannot accept legal documents and no I will not call

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the employees. We are told to give out the 1-888-690-2882 number. Both Merissa Estala and

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Ryan Peters will testify in court that Silvia Peters called the 1-888-690-2882 number while she

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was standing at the desk in front of the ViaSat employees and before she sent out the documents at

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the post office. They will testify that when Silvia Peters called the1-888-690-2882 number she

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had asked both Monique and Andrew (second time she called 1-888-690-2882 Personal) if they

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would accept service for ViaSat and its agents. The answer from the Personal was that they would

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except service from the individuals named in the documents. Merissa Escala and Ryan Peters will

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be available to testify in court as to these accounts as well as their written declarations.

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Further that Silvia said, just to make sure ViaSat does not come out with something else, I

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will return three more times to serve them again. As the declarations of Silvia Peters, Merissa

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Estala and Ryan Peters demonstrate all of the above defendants were served by the California

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CODE OF CIVIL PROCEDURE SECTION 415.10-415.95 (see exhibit no. 6) All parties knew

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that ViaSat did have a legal department further Colin Lee Ward - #277962 made an appearance in
PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS
MOTION TO REMAND TO STATE COURT
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this court on July 15, 2015 (see exhibit 4) which demonstrates that ViaSat did have a legal

department but refused to accept service. The declaration of both Candice Brenner and Carey

Guyette are inflammatory in nature and its not logical that ViaSat did not inform them of the

Complaint or gave them the Complaint or even a copy. Further defendant Viasat Declaration of

HR Campbell (Exhibit 9) stating under penalty of perjury that, there is no ViaSat employee

named Scott Hamilton is egregious of defendant ViaSat conduct and actions in these

proceedings.

Where the plaintiff misspells the defendant's legal name. In such circumstances, especially if

the plaintiff has served the claim on the correct defendant, the parties often acknowledge the error

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and move on with the litigation. In this case ViaSat knew and should have known that the action

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was brought against their employee, who plaintiff Margarita believed to be Scott Hamilton but

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may actually be named Scott Hannum (see exhibit no. 7 & 8). The State and federal rules allow

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correction of named defendants when an improperly named defendant has constructive notice of a

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lawsuit and the defendant knew or should have known that the action would have been brought

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against it, but for a mistake concerning the proper partys identity.5 Whereas here ViaSat choses

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among other things to have HR employee Heather Campbell declare under penalty of perjury that

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ViaSat defendant does not exist. Knowing that employee Scott Hannum (or Scott Hamilton) is

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and has been their employee all along.

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ViaSat has multiple attorney appearing in the documents but neither one of the attorneys

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appearing in this case have made a formal appearance in this court (except for Colin Lee Ward but

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he never served the Plaintiff with the document he filed in this court.) It is customary for

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attorneys to make a formal appearance in most instances, attorneys make appearances. An

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appearance can also be made by filing a notice of appearance with the clerk of the court and the

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plaintiff, which states that the defendant will either submit to the authority of the court or

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challenge its jurisdiction. In a lawsuit involving multiple defendants, an appearance by one is not

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SUPREME COURT OF THE UNITED STATES Syllabus KRUPSKI v. COSTA CROCIERE S. P. A.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 09337. Argued April 21, 2010Decided June 7, 2010
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PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS

MOTION TO REMAND TO STATE COURT
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an appearance for the others. Plaintiff Margarita Frias does not have Pacer and cannot afford

Pacer and furthermore under basic fundamental local rules of both state and federal the parties

must serve to each other all of the documents filed and submitted to the court. At this point

plaintiff Margarita Frias does not know who is representing who.

On Defendant ViaSat Motion for a More Definite Statement under Rule 12 (b)(6);(e)6 Court

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Document 6-1 filed 07/01/16. Defendant ViaSat make an appearance for its agents, Scott

Hamilton (Scott Hannum), Candice Brenner and Carey Guyette. Page 5 under A. Civil

Conspiracy Line 25 though page 6 line 1 through 23 including footnote. Including pages 6-10 to

the extent that ViaSats motion to dismiss is dedicated to alleging that its employees are not liable

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and should be dismissed entirely because the FEHA does not apply to discrimination and

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retaliation. Its perplexing and egregious that ViaSat can make a court appearance for its agents

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and then step back and say its agents were never served with the summons and Complaint.

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ViaSat Failed to Obtain and Submit Evidence and Consent of Co-defendants to Removal

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ViaSat should have obtained evidence and consent of co-defendants to removal Beginning

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with United States Supreme Courts decision in Chicago R.I. & Pac. Ry. Co., 178 U.S. at 248,

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federal courts have universally required unanimity of consent in removal cases involving multiple

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defendants. Like all rules governing removal, this unanimity requirement must be strictly

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interpreted and enforced because of the significant federalism concerns arising in the context of

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federal removal jurisdiction.

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The rule of unanimity requires in the case of multiple defendants that all defendants consent

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to the removal. If consent of a served codefendant is not evident on the face of the removal

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papers, then the removing party is obligated to explain the absence of that consent or the removal

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is defective. A petition for removal is considered defective if it fails to explain why all defendants

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have not joined therein.

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Defendant Viasat should have obtained the consent of all defendants, even those ViaSat
claims have not yet been served, before the Notice of Removal is filed and to evidence such

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It appears this is one Motion there is no Memorandum of Points and Authorities both documents say,

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Motion. Court scanned as, document 6-1.

PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS
MOTION TO REMAND TO STATE COURT
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consent on the Notice of Removal. Courts have rejected arguments made by parties that a co-

defendants subsequent filing of a notice of joinder and consent excuses them from the obligation

to obtain consent in advance of filing the removal petition. Courts have similarly rejected removal

efforts when a removing party failed to obtain consent of a co-defendant in advance of filing a

notice of removal because the removing party did not know with certainty whether a co-defendant

had been served. Plaintiff Margarita Frias legally served all of the defendants including ViaSat

and it is declared in the filing of Due Diligence as it follows the Rules of the Court in the

California Superior Court of San Diego North County Division. (See Exhibit No. 2).7

When ruling on a motion to remand, a district court must resolve all contested issues of

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substantive fact and any uncertainties as to the current state of controlling law in favor of the

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plaintiff. See Brown v. Francis, 75 F.3d 860, 865 (9th Cir. 1995) (If there is any doubt as to the

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propriety of removal, that case should not be removed to federal court.);see also Mohammed,

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2009 U.S. Dist. LEXIS 31094, at *15.

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Conclusion and Prayer

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For these reasons, Plaintiff Margarita Frias respectfully requests that this Court grant her

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motion to remand, remand the case to the Superior Court of the State of California for the County
of San Diego North County Division.

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DATED: July ____, 2016

Respectfully submitted,

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By:

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_________________________________

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ViaSat did not make an appearance of counsel prior to June 24, when ViaSat filed ONLY the
removal document for itself but not for Defendant Scott Hannum, Candice Brenner and Carey
Guyette. ViaSat attorney never informed Plaintiff that she was representing ViaSat. Based on
Superior Court documents it appears that the above named defendants are in default and have
made no appearance either in state or federal district court. (See Exhibit No. 3). Plaintiff received
the removal documents on June 25, 2016 for Viasat ONLY. Therefore the remaining defendants
are in Default.
PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS
MOTION TO REMAND TO STATE COURT
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VERIFICATION

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United States District Court Southern District of California

I have read the foregoing PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT

VIASAT OPPOSTION TO PLAITIFFS MOTION TO REMAND TO STATE COURT

and know its contents.

I am a party to this action. The matters stated in the foregoing document are true of my

own knowledge except as to those matters which are stated on information and belief, and as to

those matters I believe them to be true.

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I declare under penalty of perjury under the laws of the State of California that the

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foregoing is true and correct to the best of my knowledge.

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Executed on July ___, 2016 at Oceanside Ca, California.

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_______________________

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Margarita Frias

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PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS

MOTION TO REMAND TO STATE COURT
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PROOF OR SERVICE

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I, the undersigned, declare that I served the notice (s) bellow as indicated:
PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO

PLAITIFFS MOTION TO REMAND TO STATE COURT

The above described notice (s) were served on the following named parties in the matter set forth

below:

Name (s) : Attorney for ViaSat Inc. Lauren E. La Val (SBN 273990)
Address : 101 West Broadway, Ninth Floor San Diego Ca. 92101-8525
Address : Attorney for ViaSat Aaron A. Buckley at abuckley@paulplevin.com
Name (s) : Attorney for ViSat Lee Ward at Colin.Ward@viasat.com
Name (s) : Attorney Mahdis Kaeni, Esq.
Address : 1516 N. Broadway, Santa Ana, CA 92706
Name (s) : ViaSat James Henson
Address : 333 City Boulevard West, Suite 250 Orange CA 92868

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[X]

1.

Personal Service

By delivering a copy of the notice (s) to

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[ ]

2.

Constructive Service

each of the above personally:

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[1]. On: July ___, 2016

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[2]. At:__________________

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[X]

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and thereafter emailing a copy to each said party [Mahdis Kaeni Esq] and by

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depositing said copies by US Postal Mail on date: July 13 from city Oceanside CA in

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a sealed envelope with postage fully prepaid, addressed, to each said party at

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the place where the property is situated or:

At the time of service I was over the age of 18 years of age, I declare under penalty of perjury

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that the forgoing is true and correct.

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Person who served the papers:

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Name: Silvia Peters

Address:

______________________________

Oceanside CA 92056

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PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS

MOTION TO REMAND TO STATE COURT
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PLAINTIFF MARGARITA FRIAS REPLY TO DEFENDANT VIASAT OPPOSTION TO PLAITIFFS

MOTION TO REMAND TO STATE COURT
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