Kenney v. Palomar Health, Palomar Emergency Physicians, Inc. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANGELIQUE KENNEY,
Plaintiff,
v.
PALOMAR HEALTH et. al,
Defendants.
Case No. 25-cv-03147-BAS-AHG
ORDER DENYING PLAINTIFF’S
MOTION FOR ATTORNEY FEES
(ECF No. 16)
For the reasons discussed below, the Court DENIES Plaintiff’s motion for attorney
fees. (ECF No. 16.)
On September 24, 2025, Plaintiff filed a complaint against Defendants Palomar
Health, Matthew Cote, and Palomar Emergency Physicians, Inc. (“Defendants”) in the
Superior Court of California, County of San Diego on September 24, 2025, raising causes
of action for: (1) negligence per se based on the California Penal Code §§ 13823.5–
13823.95; (2) unfair competition law (Cal. Bus. & Prof. Code § 17200); (3) failure to train
or supervise under California’s Sexual Assault Response Team (“SART”) Program
(California Penal Code §§ 13898 et. seq). (See ECF No. 1-2 ¶¶ 39–56.) On November 13,
2025, Defendants removed the state action to this Court. 	(ECF No. 1.) 	Plaintiff filed a
motion to remand. (ECF No. 6.) The Court granted Plaintiff’s motion to remand. (ECF
No. 15.) Plaintiff now moves for attorney fees. (ECF No. 16.)
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28 U.S.C. § 1447 provides: “An order remanding the case may require payment of
just costs and any actual expenses, including attorney fees, incurred as a result of the
removal.” An award of attorneys' fees pursuant to 28 U.S.C. § 1447 is proper where there
is no objectively reasonable basis for removing the action. See Patel v. Del Taco, Inc., 446
F.3d 996, 999 (9th Cir. 2006) (finding defendants “had no objectively reasonable basis for
removal” and that “the district court did not abuse its discretion in awarding attorney's fees
under § 1447” to the plaintiff where the defendants removed the state court action under
28 U.S.C. § 1443 but the defendants “point to no formal expression of state law that
prohibits them from enforcing their civil rights in state court nor do they point to anything
that suggests that the state court would not enforce their civil rights in the state court
proceedings.”).
Removal is objectively reasonable where the relevant case law does not clearly
foreclose the defendant's basis of removal. 	Lussier v. Dollar Tree Stores, Inc., 518 F.3d
1062, 1066 (9th Cir. 2008). 	Here, Defendants removed the case based on their belief
Plaintiffs’ state law claims presented federal issues that fell within this Court’s jurisdiction.
(ECF No. 8.) More specifically, Defendants alleged Plaintiff’s claims would require the
interpretation of federal law because the relevant California state law requirements for
forensic sexual assault examinations were enacted to implement the federal Violence
Against Women Act’s (“VAWA”) forensic funding requirements. (ECF No. 8 at 3:20-28.)
While the Ninth Circuit has not explicitly adopted Defendants’ interpretation that
Plaintiff’s state law claims in this action require interpreting VAWA, Defendants’ theory
has not been clearly foreclosed upon either. See Tyson v. Fife, No. 2:18-CV-0028-GMN-
NJK, 2018 WL 3377085, at *4 (D. Nev. July 11, 2018) (finding the same where defendants
attempted removal to federal court based on a theory of fraudulent misjoinder that has only
been discussed in an unpublished Ninth Circuit opinion); see also Franchise Tax Bd. of
State of Cal. v. Constr. Laborers Vacation Tr. for S. California, 463 U.S. 1, 9 (1983)
(removal is proper “where the vindication of a right under state law necessarily turn[s] on
some construction of federal law.”)(emphasis added).
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Therefore, the Court finds that Defendant’s removal was objectively reasonable and
DENIES Plaintiff's request for attorney's fees. (ECF No. 16.)
IT IS SO ORDERED.
DATED: March 6, 2026
Hon. Cynthia Bashant, Chief Judge
United States District Court
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