Mark Selinger v. Ford Motor Company et al, No. 2:2022cv08883 - Document 24 (C.D. Cal. 2023)

Court Description: ORDER DENYING PLAINTIFF'S MOTION TO REMAND CASE TO LOS ANGELES SUPERIOR COURT 12 , 13 by Judge Sherilyn Peace Garnett. Plaintiff's Motion is DENIED. (iv)

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Mark Selinger v. Ford Motor Company et al Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No. 2:22-CV-08883-SPG-KS MARK SELINGER 12 Plaintiff, 13 14 15 v. FORD MOTOR COMPANY, and DOES 1 through 10, inclusive, 16 ORDER DENYING PLAINTIFF’S MOTION TO REMAND CASE TO LOS ANGELES SUPERIOR COURT [ECF Nos. 12, 13] Defendants. 17 18 19 Before the Court is Plaintiff Mark Selinger’s (“Plaintiff”) motion to remand case to 20 Los Angeles County Superior Court (“Motion”). 21 considered the parties’ submissions, the relevant law, the record in this case, and the 22 hearing on the Motion, the Court DENIES the Motion. 23 I. (ECF No. 12 (“Mot.”)). Having BACKGROUND 24 A. 25 The complaint alleges as follows: Plaintiff is a resident of California. (ECF No. 1- 26 3 ¶ 1 (“Compl.”)). Ford Motor Company (“Defendant”) is incorporated in Delaware and 27 “has designated a principal place of business within California . . . .” (Id. ¶ 2). On or 28 about Factual Background January 4, 2019, Plaintiff purchased a 2019 Ford Fusion, VIN -1Dockets.Justia.com 1 3FA6POHD3KR148844 (“Subject Vehicle”) from Defendant’s authorized retailer in 2 California. (Id. ¶ 4). The Subject Vehicle was manufactured and distributed by Defendant 3 and equipped with Defendant’s 1.5L EcoBoost engine. (Id. ¶ 5). Defendant gave Plaintiff 4 an express written warranty wherein Defendant undertook to preserve or maintain the 5 utility or performance of the Subject Vehicle or provide compensation if there was a failure 6 in utility or performance. (Id. ¶ 6). The warranty provided that if the Subject Vehicle were 7 to malfunction due to a defect, then Plaintiff could present the Subject Vehicle to 8 Defendant’s authorized repair facility(ies) during the warranty period for repairs of such 9 defect. (Id.). 10 During the warranty period, the Subject Vehicle contained and/or developed 11 defect(s) which manifested in symptoms including but not strictly limited to, engine 12 overheating; loss of coolant; coolant leaks; activation of diagnostic trouble codes (“DTCs”) 13 P0300, P0301-P0304, P0316, P0217, P1285 and/or P1299; coolant intrusion into the 14 engine cylinders; rough running; excessive smoking from the exhaust; lack of power; 15 sensation that the vehicle was struggling to accelerate; and failure of turbocharger. (Id. ¶ 16 7). Plaintiff presented the Subject Vehicle for repairs to Defendant’s authorized repair 17 facility(ies). (Id. ¶ 8). However, Defendant, through its authorized repair facility(ies), was 18 unable to repair the Subject Vehicle within a reasonable number of opportunities. (Id.). 19 The complaint then alleges that, “[t]hrough its communications with its authorized 20 repair facilities and other information available to it (including [Defendant’s] numerous 21 service bulletins and recall campaigns, internal communications, and investigations into 22 the nature of the same defects in 2019 Ford Fusion vehicles equipped with the 1.5L 23 EcoBoost engine, warranty claims submitted to it, communications from its authorized 24 repair facilities, communication from its consumer, etc.), [Defendant] knew or should have 25 known that it was required to provide restitution (i.e., a repurchase) or replace the [Subject 26 Vehicle]. Notwithstanding such knowledge, [Defendant] willfully refused to do so.” (Id. 27 ¶ 9). 28 -2- 1 2 B. Procedural History 1. Complaint 3 On July 29, 2022, Plaintiff filed a complaint against Defendant in Los Angeles 4 County Superior Court. (Compl.). The complaint asserts four causes of action, all of which 5 are under state law: (1) Breach of Warranty Obligation to Provide Restitution or 6 Replacement, Cal. Civ. Code § 1793.2(d)(2), (id. ¶¶ 10-21); (2) Breach of Obligation to 7 Commence or Complete Repairs Within Thirty (30) Days, Cal. Civ. Code § 1793.2(b), (id. 8 ¶¶ 22-28); (3) Breach of Implied Warranty of Merchantability, Cal. Civ. Code § 1792, (id. 9 ¶¶ 29-33); and (4) Fraudulent Inducement–Concealment, (id. ¶¶ 34-60). 10 For its first cause of action, the complaint asserts that “Plaintiff is entitled to 11 damages, including restitution or replacement, for [Defendant’s] failure to comply with its 12 obligations under the Song-Beverly Consumer Warranty Act.” (Id. ¶ 18). The complaint 13 further alleges as to both the first and second causes of action that Defendant acted willfully 14 when it refused to comply with its obligations under the Song-Beverly Consumer Warranty 15 Act, and therefore under Cal. Civ. Code § 1794(c) “Plaintiff is entitled to civil penalty 16 damages of up to two times the amount of actual damages.” (Id. ¶¶ 20, 28). 17 For its third cause of action, the complaint asserts that Plaintiff “is entitled to[] 18 justifiably revoke acceptance of the [Subject Vehicle]. Accordingly, Plaintiff seeks 19 remedies provided in Cal. Civ. Code 1794(b), including recovery of the entire contract 20 price. Alternatively, Plaintiff seeks the diminution in value of the [Subject Vehicle] 21 resulting from the defect(s).” (Id. ¶ 33). 22 Finally, for its fourth cause of action, the complaint asserts that “[a]s a result of 23 [Defendant’s] fraudulent misconduct, Plaintiff has suffered and will continue to suffer 24 actual damages. Such damages include recission of the contract, restitution of all payments 25 towards the purchase of the [Subject Vehicle], out of pocket expenses, diminution in value, 26 in addition to noneconomic damages (i.e., emotional distress).” (Id. ¶ 59). 27 The complaint’s prayer for relief requests the following in recovery: (1) “Plaintiff’s 28 actual economic damages (including the right of restitution, incidental damages, and -3- 1 consequential damages, as outlined in Cal. Civ. Code 1793.2(d)(2) & 1794(b)) in an 2 amount according to proof”; (2) noneconomic damages; (3) “civil penalty damages of no 3 more than two times Plaintiff’s actual damages, as per Cal. Civ. Code 1794(c) or (e)”; (4) 4 punitive damages; (5) “costs and expenses, including Plaintiff’s attorney’s fees, pursuant 5 to Cal. Civ. Code § 1794(d) and Cal. Code Civ.. Proc. § 1032 & 1033.5”; (6) prejudgment 6 interest at the legal relief; and (7) “such other relief as the Court may deem proper.” (Id. 7 at 14). Notwithstanding these requests, the complaint does not state an amount-in- 8 controversy. 9 2. Defendant’s Notice of Removal 10 On December 7, 2022, Defendant removed the action to this Court based on diversity 11 jurisdiction. (ECF No. 1 (“Removal”)). In the Notice of Removal, Defendant explains that 12 “[a]t the outset of this litigation, the amount in controversy could not be ascertained on the 13 face of the Complaint.” (Id. ¶ 2). Defendant then states: 14 22 On October 5, 2022, [Defendant] served Requests for Production on Plaintiff, which asked Plaintiff to provide any and all documents that refer or relate to Plaintiff’s purchase of the Subject Vehicle. See [(ECF No. 1-6)]. On November 7, 2022, Plaintiff served documents in response to [Defendant’s Requests for Production including a copy of the sales contract which indicated that the total purchase price was “$33,526.80.” [(ECF No. 1-9)]. Further in his Prayer for Relief, Plaintiff states that he seeks “restitution,” “civil penalty damages of no more than two times Plaintiff’s actual damages,” and “punitive damages.” [(ECF No. 1-3 at 12)]. Consequently, the total amount of damages Plaintiff seeks exceed $75,000 ($33,526.80 + ($33,526.80 x 2 [Song Beverly Act civil penalty]) + $33,526.80 x 9 [punitive damages]) = $402,321.60). 23 (Id. ¶ 12). The Notice of Removal also asserts that “[a] mileage offset calculation does not 24 need to be accounted for” in determining whether the amount-in-controversy requirement 25 was met, see (id. ¶¶ 13-14), and that Defendant “anticipates that past and future attorney’s 26 fees will total at least $50,000” were Plaintiff to succeed in his action. See (id. ¶ 15). 27 Finally, to argue that complete diversity exists, the Notice of Removal asserts that 28 Defendant “is, and was at the time Plaintiff commenced this action, a corporation organized 15 16 17 18 19 20 21 -4- 1 under the laws of the State of Delaware with its principal place of business in Michigan.” 2 (Id. ¶ 17). The Notice of Removal includes a declaration by Defendant’s counsel, along 3 with eight different exhibits labelled A through H. (ECF Nos. 1-1; 1-2; 1-3; 1-4; 1-5; 1-6; 4 1-7; 1-8; 1-9). 5 3. Plaintiff’s Motion to Remand 6 On December 20, 2022, Plaintiff filed the instant Motion, supported by a declaration 7 of Plaintiff’s counsel and exhibits. (Mot.); (ECF Nos. 12-1; 12-2). The Motion argues that 8 remand is appropriate because Defendant’s removal was not filed within 30 days of service 9 of the pleadings and, therefore, is untimely under 28 U.S.C. § 1446(b)(1). See (id. at 5–6). 10 The motion also argues that Defendant has not sufficiently established the amount-in- 11 controversy requirement for a number of reasons. (Id. at 7–12). On January 6, 2023, 12 Plaintiff filed a supplemental memorandum, which argued that Defendant also failed to 13 account for a manufacturer’s rebate and negative equity in its amount-in-controversy 14 calculations. See (ECF No. 13 (“Supp.”)). On January 25, 2023, Defendant filed an 15 opposition to the Motion, along with a declaration from Defendant’s counsel and exhibits. 16 (ECF Nos. 19 (“Opp.”); 19-1; 19-2; 19-3). Plaintiff filed a reply to Defendant’s opposition 17 on January 27, 2023. (ECF No. 20 (“Reply”)). 18 II. LEGAL STANDARD 19 “Federal courts are courts of limited jurisdiction. They possess only that power 20 authorized by Constitution and statute. . . . It is to be presumed that a cause lies outside 21 this limited jurisdiction . . . and the burden of establishing the contrary rests upon the party 22 asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 23 (1994) (internal citations omitted). A suit filed in a state court may be removed to federal 24 court if the federal court would have had original jurisdiction over the suit. 28 U.S.C. § 25 1441(a). Federal courts have original jurisdiction where an action presents a federal 26 question under 28 U.S.C. § 1331, or diversity of citizenship under 28 U.S.C. § 1332. Thus, 27 a defendant may remove a case from state court to federal court pursuant to the federal 28 removal statute, 28 U.S.C. § 1441, based on either federal question or diversity jurisdiction. -5- 1 Courts have diversity jurisdiction over cases where there is complete diversity of 2 parties and the amount “in controversy exceeds the sum or value of $75,000, exclusive of 3 interest and costs. . . .” 28 U.S.C. § 1332(a). A defendant may remove an action to federal 4 court based on diversity jurisdiction “provided that no defendant ‘is a citizen of the State 5 in which such action is brought.’” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) 6 (quoting 28 U.S.C. § 1441(b)). An individual is a citizen of the state where he or she is 7 domiciled. This means the state where the person resides with the intent to remain or the 8 place to which he or she intends to return. Kanter v. Warner-Lambert Co., 265 F.3d 853, 9 857 (9th Cir. 2001). “[A] corporation . . . [is] . . . deemed . . . a citizen of any state by 10 which it has been incorporated and of the state where it has its principal place of business.” 11 28 U.S.C. § 1332(c). A corporation’s “principal place of business” refers to “the place 12 where a corporation’s officers direct, control, and coordinate the corporation’s activities.” 13 Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010). This is commonly known as the “nerve 14 center.” Id. at 92–93. “[I]n practice it should normally be the place where the corporation 15 maintains its headquarters.” Id. 16 The removal statute is strictly construed against removal jurisdiction. See Shamrock 17 Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941). There is a “strong presumption” 18 against removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any 19 doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 20 566 (9th Cir.1992) (citation omitted). 21 jurisdiction means that the defendant always has the burden of establishing that removal is 22 proper.” Gaus, 980 F.2d at 566 (citation omitted). 23 III. “The ‘strong presumption’ against removal DISCUSSION 24 A. 25 Plaintiff’s Motion first argues that remand is appropriate because Defendant’s 26 removal is untimely under 28 U.S.C. § 1446(b)(1). See (Mot. at 5–6). Citing Harris v. 27 Bankers Life & Cas. Co., 425 F.3d 689, 693 (9th Cir. 2005), Defendant responds that its 28 notice of removal is timely because the 30-day deadline only began to run when a pleading Removal is Timely -6- 1 in the case revealed that the amount-in-controversy requirement was established. See 2 (Opp. at 12). The Court agrees that Defendant’s notice of removal is timely. 3 A plaintiff may file a motion to remand the case to state court within 30 days after 4 filing of the notice of removal for “any defect other than the lack of subject matter 5 jurisdiction.” 28 U.S.C. § 1447(c). Untimely removal is a procedural defect that may 6 defeat removal if properly raised by the party seeking remand. See Smith v. Mylan Inc., 7 761 F.3d 1042, 1045 (9th Cir. 2014). The time period to file a notice of removal is 8 governed by 28 U.S.C. § 1446(b). Under section 1446(b), a defendant must remove an 9 action within thirty days if the case stated by the initial pleading is “removable on its face.” 10 Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010) (internal 11 quotations and citation omitted). However, where, as here, the basis for removal is not 12 apparent from the face of the complaint, “a notice of removal may be filed within [30] days 13 after receipt by the defendant, through service or otherwise, of a copy of an amended 14 pleading, motion, order or other paper from which it may first be ascertained that the case 15 is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). 16 Defendant argues that Plaintiff’s responses to Defendant’s Requests for Production 17 on November 7, 2022, which included a document entitled “Retail Installment Sale 18 Contract – Simple Finance Charge” (“RISC”) that revealed the Total Sale Price for the 19 vehicle of $33,526.80,1 were the first to reveal that the amount-in-controversy exceeded 20 $75,000 and therefore, the clock began to run on that date. (Opp. at 12). Plaintiff does not 21 dispute the substance of the RISC; rather, Plaintiff argues: 22 [W]hile [Defendant] may claim that it needed to serve discovery and obtain the responses to ascertain the amount in controversy and whether the action was removable, such is not the case. Indeed, in this action, [Defendant’s] October 24, 2022 response to Plaintiff’s Requests for Production (as served in the state court action) noted that [Defendant would produce the [RISC] for [Plaintiff’s] vehicle. . . . And [Defendant’s] document production also included a copy of the sales contract for [Plaintiff’s] vehicle as well. Such 23 24 25 26 27 28 1 The RISC defines “Total Sale Price” as: “The total cost of your purchase on credit, including your down payment of $1,800.” (ECF No. 1-9 at 2). -7- 1 2 3 4 5 6 responses and agreement demonstrates [sic] that [Defendant] had access to the very document it relied upon to remove the instant action. As such, it was clear that [Defendant] had access to (and possibly had actual knowledge of) the cost of the [S]ubject [V]ehicle for purposes to removing this matter as early as October 24, 2022 (if not sooner) when it agreed to produce the sales contract. Accordingly, the December 7, 2022[,] removal is well past the 30 day deadline for removal. (Mot. at 6). 7 However, Defendant’s subjective knowledge is irrelevant to determining when the 8 30-day clock begins. In Harris, the Ninth Circuit, quoting the Fourth Circuit, expressly 9 rejected “subjective knowledge as a test for notice” when it explained: 10 11 12 13 14 We will not require courts to inquire into the subjective knowledge of the defendant, an inquiry that could degenerate into a mini-trial regarding who knew what and when. Rather, we will allow the court to rely on the face of the initial pleadings and on the documents exchanged in the case by the parties to determine when the defendant had notice of the grounds for removal, requiring that those grounds be apparent within the four corners of the initial pleadings or subsequent paper. 15 16 425 F.3d at 695 (quoting Lovdern v. GMC, 121 F.3d 160, 162 (4th Cir. 1997)). Harris 17 therefore held that the 30-day clock begins to run “if [the case] is rendered removable by 18 virtue of a change in the parties or other circumstances revealed in a newly-filed ‘paper.’” 19 Id. at 694 (emphasis added). The term “other paper” generally includes any document in 20 the record of the state court proceedings or discovery responses. 21 1446(c)(3)(A); see also De Paredes v. Walmart, Inc., 2:20-cv-08297-RGK-AFM, 2020 22 WL 6799074, at *2 (C.D. Cal. Nov. 17, 2020) (citation omitted). Thus, assuming the RISC 23 sufficiently establishes the requisite amount-in-controversy requirement (which, for the 24 following reasons, the Court finds that it does), the Court concludes that Defendant’s 25 Notice of Removal is timely because the 30-day clock began to run on November 7, 2022, 26 and the Notice of Removal was filed on December 7, 2022. 27 28 -8- 28 U.S.C. § 1 B. 2 A plaintiff who contests the existence of removal jurisdiction may move to remand 3 by raising either a “facial” or “factual” attack on the defendant’s jurisdictional allegations. 4 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). A facial attack accepts the 5 allegations as true, but asserts they are “insufficient on their face to invoke federal 6 jurisdiction.” Id. at 1121 (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 7 (9th Cir. 2004)). A factual attack, by contrast, contests the truth of the allegations 8 themselves, either by introducing evidence outside the pleadings or “by making a reasoned 9 argument as to why any assumptions on which [the allegations] are based are not supported 10 by evidence.” Harris v. KM Indus., Inc., 980 F.3d 694, 700 (9th Cir. 2020) (citations 11 omitted). Once a plaintiff mounts a factual attack, the defendant has the burden of proving, 12 by a preponderance of the evidence, the basis for removal jurisdiction. See id. at 700–01 13 (“[W]hen given the opportunity to present evidence, following [plaintiff’s] motion to 14 remand, [defendant] had the burden of supporting its jurisdictional allegations with 15 competent proof.” (internal quotation marks omitted)). “Both parties may submit evidence 16 supporting the basis for jurisdiction before the district court rules.” Id. at 699. The “burden 17 of persuasion for establishing diversity jurisdiction . . . remains on the party asserting it.” 18 Hertz, 559 U.S. at 96 (citations omitted). Thus, “[w]hen challenged on allegations of 19 jurisdictional facts, the parties must support their allegations by competent proof.” Id. at 20 96–97 (citations omitted). 21 The Court Has Diversity Jurisdiction 1. Complete Diversity 22 The complaint alleges that Defendant is incorporated in Delaware and “has 23 designated a principal place of business within California . . . .” (Compl. ¶ 2). To dispute 24 this assertion, Defendant relies on the declaration of its own counsel, which states that Ford 25 is “incorporated in the state of Delaware, and the state of Michigan serves as its principal 26 place of business.” (ECF No. 1-1 ¶ 4). Attached to counsel’s declaration as one of its 27 exhibits is Defendant’s 10-K filing for the fiscal year ending December 31, 2020. (ECF 28 -9- 1 No. 1-2). This 10-K filing also indicates that Defendant’s “principal executive offices” are 2 in Dearborn, Michigan.2 (Id.). 3 In response, Plaintiff does not challenge the existence of complete diversity. Nor 4 does Plaintiff dispute Defendant’s assertion or evidence demonstrating complete diversity 5 in either Plaintiff’s Motion or reply to the opposition. Thus, based on the evidence in the 6 record, the Court finds complete diversity to be established. See Dalton v. FCA US LLC, 7 8:20-cv-00694-JLS-DFM, 2020 WL 3868389, at *1 (C.D. Cal. July 9, 2020) (“As to 8 diversity of citizenship, ‘when a defendant’s allegations of citizenship are unchallenged, 9 nothing more is required.’” (quoting Ehrman v. Cox Commc’ns, Inc., 932 F.3d 1223, 1228 10 (9th Cir. 2019)). 2. 11 Amount-in-Controversy 12 Diversity jurisdiction also requires that “the matter in controversy exceeds the sum 13 or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). However, 14 where, as here, a plaintiff’s state court complaint does not specify a particular amount of 15 damages, and a plaintiff launches a factual attack as to the Defendant’s Notice of Removal 16 on this point, the removing party bears the burden of establishing, by a preponderance of 17 the evidence, that the matter in controversy exceeds the threshold at the time of removal. 18 See Canela v. Costco Wholesale Corp., 971 F.3d 845, 849 (9th Cir. 2020) (citing Sanchez 19 v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)); Ibarra v. Manheim Invs., 20 Inc., 775 F.3d 1193, 1198 (9th Cir. 2015) (“[W]hen the defendant’s assertion of the amount 21 in controversy is challenged by plaintiffs in a motion to remand, the Supreme Court has 22 said that both sides submit proof and the court then decides where the preponderance lies.” 23 24 25 26 27 28 2 The Court notes that the Supreme Court has rejected the suggestion that “the mere filing of a form like the Securities and Exchange Commissions’ Form 10-K listing a corporation’s ‘principal executive offices’ would, without more, be sufficient proof to establish a corporation’s ‘nerve center.’” Hertz, 559 U.S. at 97. “Such possibilities would readily permit jurisdictional manipulation, thereby subverting a major reason for the insertion of the ’principal place of business’ language in the diversity statute.” (Id.). Instead, courts consider as the “nerve center” the place of actual direction, control, and coordination. Id. -10- 1 (citing Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88-89 (2014)); 2 see also Anderson v. Starbucks Corp., 556 F. Supp. 3d 1132, 1136 (N.D. Cal. 2020) (“They 3 make a factual attack on Starbucks’ estimates of the amount in controversy by contesting 4 its evidence and reasoning, and without introducing extrinsic evidence of their own.”). 5 “Under this burden, the defendant must provide evidence establishing that it is ‘more likely 6 than not’ that the amount in controversy exceeds that amount.” Sanchez, 102 F.3d at 404 7 (citations omitted). “The amount in controversy is simply an estimate of the total amount 8 in dispute, not a prospective assessment of [a] defendant's liability.” Arias v, Residence 9 Inn, 936 F.3d 920, 927 (9th Cir. 2019) (quoting Lewis v. Verizon Commc’ns, Inc., 627 F.3d 10 395, 400 (9th Cir. 2010)) (internal quotations omitted). When assessing the amount in 11 controversy, a court “may consider [the] allegations in the complaint and in the notice of 12 removal, as well as [relevant] summary-judgment-type evidence.” Chavez v. JP Morgan 13 Chase & Co., 888 F. 3d 413, 416 (9th Cir. 2018). Additionally, a party’s allegations in its 14 opposition to a motion to remand are considered amendments to its notice of removal. 15 Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002). 16 Plaintiff raises four arguments in support of remanding the case for not meeting the 17 amount-in-controversy requirement: (1) any restitution sought would be deducted using a 18 “mileage offset” under the statute, and because Defendant fails to take this deduction into 19 account for its amount-in-controversy calculations, Defendant’s calculations are overly 20 speculatory for purposes of this Motion, (Mot. at 7–8); (2) because civil penalty damages 21 under the Song-Beverly Consumer Warranty Act “may be awarded . . . if the buyer 22 establishes that the manufacturer willfully failed to comply with its obligations,” Defendant 23 was obligated to show why said damages should be assessed in order to be included in its 24 amount-in-controversy estimate, see (id. at 8–11); (3) Defendant’s reliance on speculative 25 attorney’s fees, costs and expenses do not support its burden of proof, (id. at 11–12); and 26 (4) Defendant’s amount-in-controversy is also flawed because it does not consider either 27 28 -11- 1 the manufacturer’s rebate or negative equity.3 (Supp. at 3). As discussed below, the Court 2 disagrees with each of Plaintiff’s arguments. 3 a. 4 Mileage Offset 5 Defendant argues that the Court “need not” calculate a mileage offset in this case 6 because Plaintiff seeks “recovery of the entire recovery price,” not the contract price minus 7 a mileage offset. (Opp. at 16–17). And even if a mileage offset is calculated, the amount- 8 in-controversy is still met. (Id. at 17–18). The Court agrees. 9 Plaintiff seeks damages pursuant to California Civil Code § 1793.2(d)(2). (Compl. 10 ¶ 18). California Civil Code 1793.2(d)(2) provides that, if a vehicle manufacturer is unable 11 to “conform [the vehicle] to the applicable express warranties after a reasonable number of 12 attempts,” the manufacturer must either “promptly replace the new motor vehicle” or 13 “promptly make restitution to the buyer in accordance with subparagraph (B).” California 14 Civil Code 1793.2(d)(2)(B) states: 15 20 In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales or use tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer. 21 However, California Civil Code § 1793.2(d)(2)(C) further states: “[w]hen restitution is 22 made pursuant to subparagraph (B), the amount to be paid by the manufacturer to the buyer 16 17 18 19 23 24 25 26 27 28 3 Plaintiff also argues Defendant has not sufficiently established the amount-in-controversy requirement, in part, because Defendant did not include “summary judgment-type evidence” in the Notice of Removal. (Mot. at 7). Defendant argues that “Plaintiff misstates the law in arguing that [Defendant’s] Notice of Removal must prove that the amount in controversy is satisfied with summary judgment type evidence.” (Id. at 13). Citing Arias, 936 F.3d at 920, Defendant asserts that it was “only required to offer proof of the amount in controversy after Plaintiff has made an evidentiary challenge – with proof – that the amount in controversy is actually under $75,000.” (Id.). The Court agrees with Defendant. -12- 1 may be reduced by the manufacturer by that amount directly attributable to use by the buyer 2 prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or 3 its authorized service and repair facility for correction of the problem that gave rise to the 4 nonconformity.” 5 determined by multiplying the ‘actual price of the new motor vehicle paid or payable by 6 the buyer . . . by a fraction having as its denominator 120,000 and having its numerator the 7 number of miles traveled by the new motor vehicle prior to the time the buyer delivered 8 the vehicle’ for correction of the problem.” Messih v. Mercedes-Benz USA, LLC, Case No. 9 21-cv-03032-WHO, 2021 WL 2588977, at *5 (N.D. Cal. June 24, 2021) (quoting Cal. Civ. 10 Commonly referred to as the “mileage offset,” this deduction “is Code § 1793.2(d)(2)(C)) (emphasis added). 11 The parties dispute whether a plaintiff is obligated to present evidence regarding this 12 mileage offset to show, by a preponderance of the evidence, that the amount in controversy 13 requirement is met. The Ninth Circuit has not addressed this precise question. However, 14 Courts in this Circuit have taken several different approaches to address this issue. First, 15 courts have looked to the plaintiff’s complaint to determine whether it requests “the entire 16 contract price,” as opposed to the contract price minus deductions. If the complaint has 17 not included deductions, courts have held the defendant did not need to present evidence 18 regarding this mileage offset for purposes of the amount-in-controversy requirement. See, 19 e.g., Baumanns v. FCA US LLC, No. 3:21-cv-1054-JLS-MSB, 2021 WL 5564497, at *5 20 (S.D. Cal. Nov. 29, 2021) (rejecting plaintiff’s argument that “it is insufficient to merely 21 point to [p]laintiff’s purchase price in ascertaining actual damages” because “Plaintiff 22 claims in his Complaint that ‘he seeks the remedies provided in California Civil Code 23 1794(b)(1), including the entire contract price.” (internal quotations omitted)); Cruz v. 24 Mercedes-Benz USA, LLC, No. 5:21-cv-00809-JGB-SHK, 2021 WL 2634819, at *2 (C.D. 25 Cal. June 25, 2021) (“Plaintiff is incorrect that Defendant has not sufficiently demonstrated 26 the amount in controversy because Defendant has not shown how many miles Plaintiff 27 drove before Plaintiff’s car broke down . . . . Plaintiff’s assertion on the face of the 28 Complaint that he is entitled to recover the entire value of his lease leads to a reasonable -13- 1 inference on the part of Defendant that Plaintiff did not drive any miles before the car broke 2 down.”); Gupta v. Mercedes-Benz USA, LLC, No. CV 20-9295-GW-JEMX, 2020 WL 3 7423111, at *3 (C.D. Cal. Dec. 10, 2020) (including the entire purchase price in 4 determining amount in controversy and denying motion to remand when Plaintiff claimed 5 entitlement to recover “the entire price of subject vehicle”). 6 As a second approach, other courts have held that the mileage offset, along with 7 other vehicle-value reductions, are simply “not appropriate” for consideration for 8 determining the amount-in-controversy. See, e.g., Tucker v. FCA US LLC, No. 2:21-cv- 9 02908-GW-MAA, 2021 WL 3733243, at *3 (C.D. Cal. Aug. 23, 2021); Wickstrum v. FCA 10 USA LLC, No. 3:20-cv-00336-L-JLB, 2021 WL 532257, at *2 (S.D. Cal. Feb. 12, 2021); 11 Pristave v. Ford Motor Co., No. CV 20-04892-AB (Ex), 2020 WL 4883878, at *3 (C.D. 12 Cal. Aug. 20, 2020). 13 Still other courts have held that a plaintiff should present evidence regarding the 14 mileage offset when arguing the requisite amount-in-controversy. See, e.g., Bourland v. 15 Ford Motor Company, Case No. 5:19-cv-08456-EJD, 2020 WL 5797915, at *4 (N.D. Cal. 16 Sept. 29, 2020) (“Defendants argue that this offset is irrelevant to the amount in 17 controversy, but cite no authority in support of their position. . . . Defendants are mistaken; 18 a mileage offset is both relevant and important to the calculation of amount in controversy.” 19 (citations omitted)); Cox v. Kia Motors America, Inc., Case No. 20-cv-02380-BLF, WL 20 5814518, at *3 (N.D. Cal. Sept. 30, 2020) (“This statutory offset, referred to by some courts 21 as the “mileage offset,” properly is considered when determining the amount in controversy 22 for jurisdictional purposes.” (citation omitted)); Hernandez v. FCA US, LLC, CV 20-1058- 23 RSWL-MAA, 2020 WL 3497399, at *3 (C.D. Cal. June 29, 2020) (“Here, Defendant 24 neglected to take into account the mileage offset when alleging that the amount in 25 controversy exceeds the jurisdictional minimum. Accordingly, Defendant has failed to 26 prove actual damages by a preponderance of the evidence.” (citations omitted)); Mulin v. 27 FCA US, LLC, CV 20-2061-RSWL-PJW, 2020 WL 2509081, at *3 (C.D. Cal. May 14, 28 2020) (“Because Defendants neglected to take the mileage offset into account, they failed -14- 1 to meet their burden of showing Plaintiff's actual damages based on the purchase price of 2 the vehicle.”). 3 Based on other Ninth Circuit caselaw discussing the amount in controversy 4 requirement, this Court agrees with the courts that have held a removing defendant is not 5 obligated to present evidence regarding the mileage offset to establish the amount-in- 6 controversy requirement for claims arising under the Song Beverly Act. “[T]he amount in 7 controversy is not a prospective assessment of [a] defendant’s liability. . . . Rather, it is the 8 amount at stake in the underlying litigation . . . whatever the likelihood” of success on the 9 merits. Chavez, 888 F.3d at 417 (internal quotations and citations omitted). “In that sense, 10 the amount in controversy reflects the maximum recovery the plaintiff could reasonably 11 recover,” and it is assessed at the time of removal. Arias, 936 F.3d at 927 (citing Chavez, 12 888 F.3d at 417) (emphasis in original). The amount-in-controversy should include “any 13 result of the litigation, excluding interests and costs, that entails a payment by the 14 defendant,” including “damages (compensatory, punitive, or otherwise), the costs of 15 complying with an injunction, and attorneys’ fees. . . .” Fritsch v. Swift Transportation 16 Co. of Ariz., LLC, 899 F.3d 785, 793 (9th Cir. 2018) (citations and internal quotations 17 omitted). 18 Of course, “an estimate of the amount in controversy must be reduced if ‘a specific 19 rule of law or measure of damages limits the amount of damages recoverable.’” Schneider 20 v. Ford Motor Co., 756 Fed. Appx. 699, 701 n.3 (9th Cir. 2018) (quoting Morris v. Hotel 21 Riviera, Inc., 704 F.2d 1113, 1115 (9th Cir. 1983)). However, the “amount in controversy 22 represents only the ‘amount at stake in the underlying litigation,’ not the likely liability.” 23 Greene v. Harley-Davidson, Inc., 965 F.3d 767, 774 (9th Cir. 2020) (citing Gonzales v. 24 CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016). Thus, “the ‘strength 25 of any defenses indicates the likelihood of the plaintiff prevailing; it is irrelevant to 26 determining the amount that is at stake in the litigation.” Id. (citing Arias, 936 F.3d at 928); 27 In Re: Ford Motor Co. DPS6 Powershift Transmission Products Liab. Litig., No. 2:18- 28 ML-02814-AB-PVC, 2018 WL 5905942, at *4 (C.D. Cal. Sept. 10, 2018) (“But again, the -15- 1 amount in controversy is established by what the plaintiff demands, not by any reductions 2 that a defendant might achieve through its defenses.” (citation omitted)). After all, “if a 3 district court had to evaluate every possible defense that could reduce recovery below the 4 jurisdictional amount[] the district court would essentially have to decide the merits of the 5 case before it could determine if it had subject matter jurisdiction.” 6 Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1108 (9th Cir. 2010). Geographic 7 Further, unlike statutory caps on damages, which are applied by obligation, the 8 mileage offset defense mentioned in section 1793.2 is not automatically applied in cases 9 arising under the Song-Beverly Act. Instead, section 1793.2 explicitly states that “when 10 restitution is made . . . the manufacturer . . . may [reduce the amount] . . . directly 11 attributable to [the prior] use.” See also Niedermeier v. FCA US LLC, 56 Cal. App. 5th 12 1052, 1064 (2020) (“the Act permits a manufacturer to reduce the restitution.” (emphasis 13 added)). In other words, if Defendant fails to affirmatively (and successfully) raise the 14 mileage offset defense at trial, then it would have to reimburse Plaintiff the entire purchase 15 price, without consideration of the Subject Vehicle’s mileage/use. See Wickstrum, 2021 16 WL 532257, at *2. However, here, consideration of the mileage offset at this stage is not 17 necessary because – to determine whether the amount-in-controversy requirement is 18 established – the Court is only concerned with the “maximum recovery” that Plaintiff can 19 reasonably recover in this action. Arias, 936 F.3d at 927. It is not concerned with a 20 potential defense which may or may not be raised by Defendant at a later stage of the 21 proceedings. The Court also finds that because the complaint seeks remedies provided in 22 California Civil Code section 1794(b)(1), “including recovery of the entire contract price,” 23 Plaintiff has effectively put the “entire contract price” of $33,526.804 in controversy for 24 25 26 27 28 4 “Under the Song–Beverly Act, the actual price paid or payable by the buyer [only] includes any paid finance charges.” Alvarado v. FCA US, LLC, No. EDCV 17-505 JGB (DTBx), 2017 WL 2495495, at *4 (C.D. Cal. Jun. 8, 2017). Because the record does not show whether Plaintiff has made all the installment payments, the Court cannot determine whether Plaintiff has paid all the finance charges that are included in the total sale price of the Vehicle. As such, for this Motion, the Court will use the total cash price of $33,526.80 -16- 1 purposes of determining what the maximum amount-in-controversy is. (Compl. ¶ 33); see, 2 e.g., Baumanns, 2021 WL 5564497, at *5 (S.D. Cal. Nov. 29, 2021); Cruz, 2021 WL 3 2634819, at *2; Gupta, 2020 WL 7423111, at *3. 4 5 b. Civil Penalty Damages 6 Plaintiff argues remand is appropriate because Defendant’s estimate of the amount 7 in controversy is speculative, given that it simply relies on the fact that the Complaint seeks 8 civil penalty damages under the Song-Beverly Act. (Id. at 8–11). Specifically, Plaintiff 9 argues that, although the Song-Beverly Act does permit up to two times the amount of 10 actual damages as a civil penalty, Defendant has “failed to (and will be unable to) provide 11 any evidence of whether (and how much) civil penalties are likely to be awarded,” thus 12 they should not be included. (Mot. at 11). Defendant responds that because the complaint 13 seeks civil penalty damages and alleges Ford acted willfully, civil penalties under the Song- 14 Beverly Act are “at stake” and should be included. (Opp. at 19). The Court agrees with 15 Defendant. 16 Under California Civil Code 1794(c), the buyer of a defective consumer good may 17 receive a civil penalty “not [to] exceed two times the amount of actual damages” if the 18 buyer establishes that the failure to comply was “willful.” Like the mileage offset, courts 19 also differ on whether the maximum civil penalty should be considered when assessing the 20 amount-in-controversy requirement. See Verastegui v. Ford Motor Co., No. 19 CV-04806- 21 BLF, 2020 WL 598516, at *3 (N.D. Cal. Feb. 7, 2020) (“[C]ourts in this district have 22 varying views as to whether the maximum civil penalties should be considered when 23 deciding the amount in controversy.” (citations omitted)). 24 25 26 27 28 listed in the RISC as the measure of actual damages to decide the actual price. See (ECF No. 1-9); see, e.g., Messih, 2021 WL 2588977, at *4 (noting that district courts “have found total cash price appropriate in calculating actual damages sought under the Song-Beverly Act.” (citations omitted)). -17- 1 However, this Court concludes that civil penalties should be considered. As already 2 discussed, in determining the amount-in-controversy, court are to consider the “maximum 3 recovery the plaintiff could reasonably recover.” Arias, 936 F.3d at 927. For this reason, 4 multiple courts have held that these civil penalties are properly considered when 5 determining whether the amount in controversy requirement is met. See, e.g., Verastegui, 6 2020 WL 598516, at *3 (recognizing split in authority regarding whether maximum civil 7 penalty should be considered as part of the amount in controversy and stating that “the 8 Court is persuaded by the decisions in which courts have considered the maximum 9 recoverable civil penalties because that is what Plaintiff put in controversy”); Jimenez v. 10 Ford Motor Co., 3:21-cv-04967-VC, 2021 WL 5149865, at *1 (N.D. Cal. Nov. 5, 2021); 11 Canesco v. Ford Motor Co., 570 F. Supp. 3d 872, 902 (S.D. Cal. Nov. 4 2021); Treauhaf 12 v. Mercedes-Benz USA, LLC, No. 2:20-cv-11155-SVW-GJS, 2021 WL 2864877, at *2 13 (C.D. Cal. July 16, 2021); Rahman v. FCA US LLC, Case No. 2:21-cv-02584-SB (JCx), 14 2021 WL 2285102, at *2-3 (C.D. Cal. June 4, 2021). 15 Here, the complaint alleges Defendant’s conduct to be willful for purposes of 16 assessing civil penalty damages. (Comp. ¶¶ 9, 20, 28, 60). In particular, the complaint 17 alleges that Defendant willfully violated the Song-Beverly Act in multiple ways, including 18 by refusing to comply with its obligations to: (1) promptly offer restitution or replacement 19 for the vehicle; and (2) commence service and repair within a reasonable time or to 20 complete such service or repairs within thirty days. (Compl. ¶¶ 17, 24). Plaintiff also 21 alleges that these violations entitle him to “civil penalty damages of no more than two times 22 Plaintiff’s amount of actual damages” pursuant to California Civil Code §§ 1794(c) or (e). 23 (Id. ¶¶ 20, 28). Thus, by alleging willfulness and requesting the maximum of civil 24 penalties, Plaintiff has put the maximum amount of civil penalties in controversy, and that 25 amount should therefore be included. 26 Moreover, Plaintiff’s argument that Defendant must provide evidence that civil 27 penalties will be awarded to include such penalties in the amount in controversy calculation 28 would lead to the untenable result of Defendant having to prove up its own liability for -18- 1 civil penalties to demonstrate the amount in controversy. Multiple courts have rejected 2 Plaintiff’s argument for that very reason. Canesco, 2021 WL 5122231, at *20 (siding with 3 “the majority of courts and more recent cases” that “find civil penalties appropriate for 4 inclusion in the calculation of the amount in controversy without the defendant needing to 5 ‘prove a case against itself’ with respect to liability for civil penalties”); Treauhaf, 2021 6 WL 2864877, at *2 (holding civil penalty claim of twice actual damages requires including 7 that amount regardless of whether defendant presented evidence); Rahman, 2021 WL 8 2285102, at *2-3 (“Defendant is not required to prove the case against itself”). 9 Therefore, the Court finds that Defendant has shown, by a preponderance of the 10 evidence, that a civil penalty of up to two-times the vehicle price can be considered in 11 determining whether the amount-in-controversy requirement has been met. Combined 12 with actual damages of $33,526.80, the addition of $67,053.60 readily meets the amount- 13 in-controversy for purposes of this Motion. 14 15 c. Punitive Damages 16 Similarly, the Court finds that Defendant has shown by a preponderance of the 17 evidence that punitive damages should be included in the amount-in-controversy. While 18 the amount in controversy exceeds $75,000 without punitive damages, such damages are 19 properly considered for purposes of this Motion. See Fritsch, 899 F.3d at 793 (amount-in- 20 controversy includes “any result of the litigation, excluding interests and costs, that entails 21 a payment by the defendant,” including “damages (compensatory, punitive, or otherwise) 22 . . . .”). 23 Under California law, punitive damages may be awarded “where it is proven by clear 24 and convincing evidence that the defendant has been guilty of oppression, fraud, or 25 malice.” Cal. Civ. Code § 3294(a). “Indeed, California law is settled that punitive damages 26 are recoverable for fraudulent concealment and fraud in the inducement causes of action.” 27 Luzaich Striping v. Am. Asphalt S., CASE NO: 37-2020-00009193-CU-BC-NC, 2022 Cal. 28 Super. LEXIS 818, at *4 (Jan. 14, 2022) (citing Nissan Motor Acceptance Cases, 63 Cal. -19- 1 App. 5th 793, 829 (2021)); Alliance Mortgage Co., 10 Cal. 4th 1226, 1241 (1995)). To 2 determine punitive damages, “[the] party asserting federal diversity jurisdiction may 3 introduce evidence of jury verdicts in cases involving analogous facts.” In re Volkswagen 4 “Clean Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig., No. 3:15-md-02672-CRB, 2019 5 WL 693234, at *5 (N.D. Cal. Feb. 19, 2019) (quoting Surber v. Reliance Nat. Indem. Co., 6 110 F. Supp. 2d 1227, 1232 (N.D. Cal. 2000)). 7 Plaintiff’s complaint requests punitive damages for its fraudulent inducement– 8 concealment claim, alleging Defendant’s conduct “in refusing to disclose the Cooling 9 System Defect was malicious, willful, reckless in its disregard of the potential harm to 10 consumers, and reprehensible.” (Compl. ¶ 60). In opposition to the Motion, Defendant 11 cites In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Product Liability 12 Litigation for the proposition that punitive damages of at least $50,000 is a reasonable 13 estimate for present purposes. (Opp. at 26–27 (citing 2019 WL 693234, at *7)). Plaintiff 14 does not dispute this figure in its reply. See (Reply). Thus, for purposes of this Motion, 15 the Court finds that $50,000 is a reasonable estimate of punitive damages in this action. 16 See Arias, 936 F.3d at 927 (“the amount in controversy reflects the maximum recovery the 17 plaintiff could reasonably recover”). 18 19 d. Attorney’s Fees 20 Plaintiff argues the Court should grant the Motion because, in asserting the amount 21 in controversy exceeds $75,000, Defendant failed to provide any evidence of a reasonable 22 estimate of attorney’s fees, costs, or expenses likely to be incurred in this matter. (Mot. at 23 11–12). As Defendant points out, Plaintiff does not dispute he is seeking attorney’s fees 24 or that they should be included in the amount-in-controversy calculation, only that no 25 reasonable estimate was provided by Defendant. (Opp. at 23–25). The Court disagrees 26 with Plaintiff. 27 In the Ninth Circuit, courts can consider attorneys’ fees awarded under fee-shifting 28 statutes when assessing the amount in controversy. Gonzales, 840 F.3d at 649. But a -20- 1 removing defendant must “prove that the amount in controversy (including attorneys’ fees) 2 exceeds the jurisdictional threshold by a preponderance of the evidence,” and must “make 3 this showing with summary-judgment-type evidence.” Fritsch, 899 F.3d at 795 (citation 4 omitted). “A district court may reject the defendant’s attempts to include future attorneys’ 5 fees in the amount in controversy if the defendant fails to satisfy this burden of proof.” Id. 6 To determine whether a defendant has satisfied this burden, courts have considered whether 7 the proposed fees match those awarded in similarly situated cases, along with the history 8 of fees requested by the plaintiff’s counsel. See, e.g., Fontana v. Volkswagen Grp. of Am., 9 Inc., Case No. 2:22-cv-03148-ODW(AGRx), 2022 WL 3335650, at *3 (C.D. Cal. Aug. 12, 10 2022) (“While a defendant may meet its burden . . . by identifying awards in other cases, 11 those cases must be similar enough to the case at hand that the court can conclude that it is 12 more likely than not that the plaintiff may incur a similar fee award.” (quoting Kaplan v. 13 BMW of N. Am., LLC, No. 21-CV-857 TWR (AGS), 2021 WL 4352340, at *6 (S.D. Cal. 14 Sept. 24, 2021)); Coronel v. Ford Motors Co., No. CV1909841DSFJEM, 2020 WL 15 550690, at *6 (C.D. Cal. Feb. 4, 2020) (“The Court believes, based on its experience and 16 the declared experience of Mr. May, that Defendants have proven by preponderance of the 17 evidence that attorney’s fees will exceed $50,000. This conclusion is further supported by 18 recent fee awards in other cases involving Plaintiff’s counsel’s law firm asserting claims 19 against car manufacturers under the Song-Beverly Act.” (citing cases)). “In estimating 20 future attorney’s fees, district courts may likewise rely on ‘their own knowledge of 21 customary rates and their experience concerning reasonable and proper fees.’” Id. at 795 22 (quoting Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011)). 23 The complaint requests attorney’s fees pursuant to California Civil Code 1794(d), 24 along with California Civil Code Procedure 1032 and 1033.5. (Compl. at 14). Under 25 California Civil Code 1794(d), a buyer of a defective consumer good is allowed to recover, 26 as a part of the judgment, “a sum equal to the aggregate amount of costs and expenses, 27 including attorney’s fees based on actual time expended . . . .” In its Notice of Removal, 28 Defendant states that it “anticipates that past and future attorney’s fees will total at least -21- 1 $50,000. (Removal ¶ 15). However, the Notice of Removal lacks any evidence to support 2 this point. Thus, in his Motion, Plaintiff argues that Defendant has failed to provide “any 3 evidence of a reasonable estimate [of] attorney’s fees, costs or expenses likely to be 4 incurred in this matter.” (Mot. at 11). 5 In response, Defendant attaches to the opposition a declaration from its counsel. See 6 (ECF No. 19-1). In this declaration, Defendant’s counsel declares: “I anticipate that past 7 and future attorney’s fees will total at least $50,000” on this case, based on the fact that 8 Plaintiff’s counsel has, to date: (1) conducted a pre-filing investigation; (2) filed a 60- 9 paragraph complaint alleging four different causes of action, including a fraud claim, in 10 state court (paying a $450 filing fee that is recoverable); (3) propounded and received 11 responses to a complete set of written discovery in state court; (4) received and drafted 12 responses to Defendant’s written discovery requests in state court; (5) participated in a 13 conference of counsel pursuant to Federal Rule of Civil Procedure 26(f) and drafted the 14 Joint Report; and (6) filed the instant Motion, along with a reply brief. Id. ¶ 5. Defendant’s 15 counsel estimates that Plaintiff’s counsel’s hourly rate is “at least $400 and likely much 16 higher” because, in 2020, Plaintiff’s counsel was an associate at a separate firm making 17 $385, (id. ¶ 8), and now, Plaintiff’s counsel is lead partner at his own firm, and his rate 18 “has presumably increased substantially.” (Id.). Thus, given the activity in this case to 19 date and future anticipated activity, Defendant’s counsel estimates that attorney’s fees for 20 Plaintiff are likely to exceed $50,000, representing “only 125 hours of work on the case” 21 at a rate of $400 per hour. (Id.). 22 Defendant also cites to multiple cases arising under the Song-Beverly Act, showing 23 $50,000 in attorney’s fees is, on average, commonly viewed as a reasonable estimate in 24 cases dealing with a plaintiff-purchaser suing a car manufacturer after their vehicle became 25 defective during the warranty period, and the defendant failed to make sufficient repairs. 26 See (Opp. at 25); Coronel, 2020 WL 550690, at *6 (“The Court believes, based on its 27 experience and the declared experience of Mr. May, that Defendants have proven by 28 preponderance of the evidence that attorney’s fees will exceed $50,000.”); Rahman, 2021 -22- 1 WL 2285102, at *3 (finding award of $40,000 to be reasonable); see also Becker v. Ford 2 Motor Co. (In re Ford Motor Co. DPS6 Powershift Transmission Prods. Liab. Litig.), 2018 3 U.S. Dist. LEXIS 232980, at *18 (C.D. Cal. Sept. 10, 2018) (“Ford’s declaration that the 4 KLG Firm routinely seeks attorneys’ fees of more than $100,000 in cases alleging the same 5 claims against Ford is sufficient to establish that this amount is in issue.”). Finally, 6 Defendant cites other cases arising under the Song-Beverly Act, showing that attorney’s 7 fees commonly exceed $50,000 at trial. See (Opp. at 25–26); Zomordian v. BMW of N. 8 Am., LLC, No. 2:17-cv-05061-DMG-PLA, 2019 WL 6534513, at *10 (C.D. Cal. July 23, 9 2019) (awarding $213,447.50 in attorneys’ fees); Forouzan v. BMW of N. Am., LLC, No. 10 2:17-cv-03875-DMG-GJS, 2019 WL 856395, at *9 (C.D. Cal. Jan. 11, 2019) (awarding 11 $215,560.50 in attorneys’ fees); Fuller v. FCA US LLC, No. B286224, 2019 WL 2763114, 12 at *1 (C.D. Ct. App. July 2, 2019) (affirming attorney’s fee award of $327,782.75). 13 In its reply, Plaintiff fails to address why the cases Defendant cites are factually 14 distinguishable from the present one. See (Reply at 7-10). Thus, because the Court finds 15 the cases cited by Defendant sufficiently similar to serve as a proxy for attorney’s fees in 16 this case, the Court also finds that Defendant has shown, by a preponderance of the 17 evidence, that an award of attorney’s fees of $50,000 is a reasonable estimate for purposes 18 of determining the amount-in-controversy. See, e.g., Fontana, 2022 WL 3335650, at *3. 19 20 e. Rebate or Negative Equity 21 Finally, in its supplemental memorandum, Plaintiff argues that remand is appropriate 22 because Defendant “also . . . remain[s] notably silent on whether it would be seeking to 23 deduct the $2,000 (listed on the [RISC] as a ‘Manufacturer’s Rebate’) from [Plaintiff’s 24 recovery,” (Supp. at 3), and whether Defendant would claim “a further deduction for the 25 negative equity–of $5,200.000 (listed on the [RISC] as ‘Total Net Trade-in (Indicate if 26 negative number)’)–which was rolled into the financing for the Subject Vehicle.” Of 27 course, even if the Court were to assume the validity of these arguments, a deduction of 28 $7,200.00 would not cause the amount-in-controversy to slip below the $75,000.01 -23-

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