1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JASON ANGELLO, Case No. 5:23-cv-01097-FLA (DTBx)

12 Plaintiff,

ORDER REMANDING ACTION FOR

13 v. LACK OF SUBJECT MATTER

JURISDICTION

14 TARGET CORPORATION, et al., 15 Defendants. 16

17

18

19 20 21 22 23 24 25 26 27 28 1 RULING 2 On February 22, 2023, Plaintiff Jason Angello (“Plaintiff”) filed the Complaint 3 in this action in the San Bernardino County Superior Court, asserting claims against 4 Defendant Target Corporation (“Target”) for: (1) disability discrimination in violation 5 Cal. Gov. Code § 12940(a); (2) failure to engage in interactive process in violation of 6 Cal. Gov. Code § 12940(n); (3) failure to provide reasonable accommodation in 7 violation of Cal. Gov. Code § 12940(m); (4) retaliation in violation of Cal. Gov. Code 8 § 12940(h); (5) failure to prevent discrimination and harassment in violation of Cal. 9 Gov. Code § 12940(k); and (6) wrongful termination. Dkt. 8, Ex. A (“Compl.”).1 10 On June 9, 2023, Target removed the action to this court on the basis of 11 diversity jurisdiction under 28 U.S.C. § 1332. Dkt. 1 (“NOR”). On August 2, 2023, 12 the court ordered the parties to show cause why the action should not be remanded for 13 lack of subject matter jurisdiction due to an insufficient amount in controversy 14 (“OSC”). Dkt. 12. Both Plaintiff and Target filed responses to the OSC. Dkt. 17 15 (“Target Resp.”); Dkt. 19.2 Target also filed a supplemental response on January 5, 16 2024. Dkt. 26 (“Target Suppl. Resp.”). 17 Having reviewed the Notice of Removal and the parties’ responses to the OSC, 18 the court finds Target fails to establish the court has subject matter jurisdiction and 19 REMANDS the action to the San Bernardino County Superior Court. 20 DISCUSSION 21 Federal courts are courts of “limited jurisdiction,” possessing “only that power 22 authorized by the Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of 23 Am., 511 U.S. 375, 377 (1994); U.S. Const. art. III, § 2, cl. 1. District courts are 24 presumed to lack jurisdiction unless the contrary appears affirmatively from the 25

26 1 The court cites documents by the page numbers added by the CM/ECF system rather 27 than any page numbers listed on the documents natively. 28 2 Plaintiff argues in favor of remand. See generally Dkt. 19. 1 record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3 (2006). 2 Additionally, federal courts have an obligation to examine jurisdiction sua sponte 3 before proceeding to the merits of a case. See Ruhrgas AG v. Marathon Oil Co., 526 4 U.S. 574, 583 (1999). 5 Federal courts have jurisdiction where an action arises under federal law or 6 where each plaintiff’s citizenship is diverse from each defendant’s citizenship and the 7 amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. 8 §§ 1331, 1332(a). Thus, a notice removing an action from state court to federal court 9 must include “a plausible allegation that the amount in controversy exceeds the 10 jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 11 U.S. 81, 89 (2014). Where “the plaintiff contests, or the court questions, the 12 defendant’s allegation” concerning the amount in controversy, “both sides [shall] 13 submit proof,” and the court may then decide whether the defendant has proven the 14 amount in controversy “by a preponderance of the evidence.” Id. at 88–89. “Federal 15 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 16 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). As the removing 17 party, Defendant bears the burden to establish the court’s subject matter jurisdiction 18 over this action. See id. at 567. 19 Target contends the amount in controversy exceeds the jurisdictional minimum 20 of $75,000 based on Plaintiff’s requests for lost wages, emotional distress damages, 21 punitive damages, and attorney’s fees. See generally Target Resp. 22 A. Lost Wages 23 Target concedes Plaintiff’s Complaint does not seek a specific amount of lost 24 wages and instead “vaguely alleges ‘losses in earnings and other benefits[.]’” Target 25 Resp. at 8. Based on Plaintiff’s hourly salary and total weekly hours worked, Target 26 calculates Plaintiff’s “total lost earnings up to the date of trial” to be $88,762.32. Id. 27 at 9; Dkt. 1-1 (“Klarfeld Decl.”) ¶¶ 6–7 (attesting Plaintiff was a “full-time Team 28 Member who … work[ed] 36 hours per week,” and earned $28.67 per hour). 1 Many courts in this district have declined to project future lost wages beyond 2 the date of removal. See Ramirez v. Builder Servs. Grp., Inc., Case No. 5:22-cv-1571- 3 JGB (KKx), 2023 WL 115561, at *4 (C.D. Cal. Jan. 5, 2023) (collecting cases). The 4 court agrees with Ramirez and declines to project lost wages through the trial date in 5 this action. 6 “[I]f the Court limits the calculation of lost wages to the time of removal,” 7 Target argues Plaintiff “would have lost wages of at least $35,092.08[.]” Target Resp. 8 at 9. Based on the evidence submitted (see Klarfeld Decl. ¶¶ 6–7), the court accepts 9 this calculation and considers only Plaintiff’s claim for lost wages as of the date of 10 removal ($35,092.08) in determining the amount in controversy.3 11 B. Emotional Distress 12 To determine the amount of emotional distress damages in controversy, courts 13 consider the amount of emotional distress damages awarded by juries in similar cases. 14 Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005); Adkins v. J.B. Hunt 15 Transp., Inc., 293 F. Supp. 3d 1140, 1146–47 (E.D. Cal. 2018). “While … jury 16

17 3 In its supplemental response, Target claims Plaintiff’s “discovery responses confirm 18 that the dollar amount of his alleged damages is at least $129,618.02.” Target Suppl. Resp. at 2. Plaintiff’s interrogatory responses do not establish the amount in 19 controversy as Plaintiff states he obtained new employment less than one month after 20 his termination from Target, but does not account for or exclude mitigated damages in his damages calculation. Dkt. 26-1 at 14. Plaintiff also argues “there will be no offset 21 of economic damages,” because he “was not able to find a comparable position,” but 22 offers no basis for why his new position is inferior to his employment with Target. Plaintiff relies on Villacorta v. Cemex Cement, Inc., 221 Cal. App. 4th 1425, 1432 23 (2013), to argue wages earned “from an inferior job may not be used to mitigate 24 damages.” In Villacorta, the court found “a jury could reasonably conclude the [new] job … was inferior” because it “was located two to three hours away from the home 25 where his family resided,” and required the plaintiff to rent a room “one hour away 26 from” the office because there were no “closer rental[s].” Id. Accordingly, the plaintiff “was only able to see his family on weekends.” Id. Here, Plaintiff states only 27 that his weekly salary decreased by approximately $800. Dkt. 26-1 at 14. This is 28 insufficient. 1 verdicts in similar cases can provide evidence of the amount in controversy, the cases 2 must be factually identical or, at a minimum, analogous to the case at issue.” See 3 Mireles v. Wells Fargo Bank, N.A., 845 F. Supp. 2d 1034, 1055 (C.D. Cal. 2012). 4 Courts are not required to include emotional distress damages in the amount in 5 controversy when the party asserting jurisdiction fails to provide evidence of jury 6 awards from similar cases. Aguilar v. Wells Fargo Bank, N.A., Case No. 5:15-cv- 7 01833-AB (SPx), 2015 WL 6755199, at *6 (C.D. Cal. Nov. 4, 2015); Rybalnik v. 8 Williams Lea Inc., Case No. 2:12-cv-04070-ODW (AGRx), 2012 WL 4739957, at *3 9 (C.D. Cal. Oct. 4, 2012) (“[M]erely pointing to cases where juries have awarded hefty 10 damages sums in the past without further explanation (by facts or evidence) how the 11 facts in those cases compare to the facts presented here is … insufficient to meet [the] 12 burden to establish the amount in controversy by a preponderance of the evidence.”). 13 Target asserts the court may consider Plaintiff’s allegations that he was 14 “psychologically injured” and experienced “great mental pain and suffering.” Target 15 Resp. at 10. Target identifies two cases in which juries awarded emotional distress 16 damages, but does not present evidence of Plaintiff’s damages or explain how the 17 facts in those cases are similar to those pleaded in the Complaint. Id. at 11. It is 18 insufficient to merely point to other “disability discrimination” cases in which 19 “California juries, on analogous facts, rendered verdicts well in excess of the $75,000 20 threshold[.]” Target, thus, fails to establish any specific amount of emotional distress 21 damages should be considered. See Rybalnik, 2012 WL 4739957, at *3. 22 C. Punitive Damages 23 “[T]he mere possibility of a punitive damages award is insufficient to prove that 24 the amount in controversy requirement has been met.” Ogden v. Dearborn Life Ins. 25 Co., 644 F. Supp. 3d 559, 564 (D. Ariz. 2022). “Defendant must present appropriate 26 evidence, such as jury verdicts in analogous cases, to show that a claim for punitive 27 damages establishes that it is more likely than not that the amount in controversy 28 exceeds $75,000.” Id. Accordingly, a removing defendant must “articulate why the 1 particular facts that are alleged in the instant action might warrant extraordinary 2 punitive damages.” Id. (emphasis in original) (quoting Haisch v. Allstate Ins. Co., 3 942 F. Supp. 1245, 1249 (D. Ariz. 1996)). 4 Target notes Plaintiff seeks punitive damages in the FAC, and that such 5 damages may be included in assessing the amount in controversy. Target Resp. at 10. 6 As with Plaintiff’s request for emotional distress damages, however, Target does not 7 explain why any particular facts pleaded might warrant punitive damages if proven or 8 identify any comparable cases in which punitive damages were awarded based on 9 similar facts as pleaded in the Complaint. See id. Target, thus, fails to carry its 10 burden to show any specific amount of punitive damages is in controversy in this case. 11 See Ogden, 644 F. Supp. 3d at 564. 12 D. Attorney’s Fees 13 “[W]here an underlying statute authorizes an award of attorneys’ fees, either 14 with mandatory or discretionary language, such fees may be included in the amount in 15 controversy.” Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998). A 16 removing defendant must “prove that the amount in controversy (including attorneys’ 17 fees) exceeds the jurisdictional threshold by a preponderance of the evidence,” and 18 must “make this showing with summary-judgment-type evidence.” Fritsch v. Swift 19 Transp. Co. of Ariz., LLC, 899 F.3d 785, 795 (9th Cir. 2018). “A district court may 20 reject the defendant’s attempts to include future attorneys’ fees in the amount in 21 controversy if the defendant fails to satisfy this burden of proof.” Id. Cal. Gov. Code 22 § 12965(c)(6) allows the court, in its discretion, to award the prevailing party of a Fair 23 Employment and Housing Act action reasonable attorney’s fees and costs. 24 Target estimates Plaintiff’s counsel may bill “$80,000.00 in attorneys’ fees, not 25 including preparation or any work conducted to date in this action.” Target Resp. 26 at 13. Target, however, fails to submit evidence or identify comparable attorney’s fee 27 awards in other factually similar actions, as required for the court to conclude it is 28 more likely than not Plaintiff will recover attorney’s fees if he prevails here. The 1 | mere fact that the court may exercise its discretion to award Plaintiff attorney’s fees if 2 | he prevails is insufficient to demonstrate that such award is reasonably likely or 3 | should be included in the amount in controversy. Target, thus, fails to meet its burden 4 | to demonstrate that its estimate of Plaintiff's attorney’s fees is not speculative, and the 5 | court will not include this estimate in its amount in controversy calculations. 6 CONCLUSION 7 Given that any doubt regarding the existence of subject matter jurisdiction must 8 || be resolved in favor of remanding the action to state court, see Gaus, 980 F.2d at 566, 9 | the court finds Defendant has not established by a preponderance of the evidence that 10 | the amount in controversy meets the jurisdictional minimum for diversity jurisdiction. 11 | See 28 U.S.C. § 1332. The court, therefore, REMANDS the action to the San 12 | Bernardino County Superior Court, Case No. CIVSB2305124. All dates and 13 | deadlines in this court are VACATED. The clerk of the court shall close the action 14 | administratively. 15S 16 IT IS SO ORDERED. 17 18 | Dated: August 12, 2024 19 = 5: 20 FERNANDO'L. AENLLE-ROCHA 21 United States District Judge 22 23 24 25 26 27 28