Case 2:21-cv-08607-MCS-KS Document 20 Filed 01/12/22 Page 1 of 5 Page ID #:156

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5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RAFAEL GONZALEZ-BARRETO, Case No. 2:21-cv-08607-MCS-KS 11 Plaintiff, ORDER GRANTING MOTION TO 12

REMAND (ECF NO. 12)

13 v.

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KIRK RICHARD BERRY,

15 Defendant. 16

17 18 Plaintiff Rafael Gonzalez-Barreto moves to remand this case to Los Angeles 19 County Superior Court. Mot., ECF No. 12; see also Mem., ECF No. 12-2. Defendant 20 Kirk Richard Berry opposes the motion. Opp’n, ECF No. 13. The Court deems the 21 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. 22 R. 7-15. 23 I. BACKGROUND 24 On March 18, 2021, Plaintiff sued Defendant in Los Angeles County Superior 25 Court for injuries after a car crash. Notice of Removal, Mekha Decl. Ex. A. (“Compl.”), 26 ECF No. 1. Plaintiff indicated compensatory damages exceeded $25,000. Id. Following 27 service on October 2, 2021, Defendant removed this case to federal court on November 28 1 Case 2:21-cv-08607-MCS-KS Document 20 Filed 01/12/22 Page 2 of 5 Page ID #:157

1 1, 2021, alleging diversity jurisdiction. Notice of Removal ¶ 1. 2 II. LEGAL STANDARDS 3 A. Subject-Matter Jurisdiction 4 Federal courts are of limited jurisdiction, having subject-matter jurisdiction only 5 over matters authorized by the Constitution and Congress. Kokkonen v. Guardian Life 6 Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a civil action in 7 state court to federal court if the federal court has original jurisdiction. 28 U.S.C. 8 § 1441(a). Federal courts have original jurisdiction where an action arises under federal 9 law or where each plaintiff’s citizenship is diverse from each defendant’s citizenship 10 and the amount in controversy exceeds $75,000. Id. §§ 1331, 1332(a). 11 There is a “strong presumption” against removal jurisdiction, and the removing 12 party bears the burden of proving that removal is proper. Gaus v. Miles, Inc., 980 F.2d 13 564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as 14 to the right of removal in the first instance.” Id. 15 B. Amount in Controversy 16 To invoke diversity jurisdiction, a party must demonstrate there is complete 17 diversity of citizenship between the parties and that the amount in controversy exceeds 18 the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). 19 “[W]here it is unclear or ambiguous from the face of a state-court complaint whether 20 the requisite amount in controversy is pled,” the removing defendant must establish by 21 a preponderance of the evidence that the amount in controversy “more likely than not” 22 exceeds $75,000. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 23 2007); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). 24 III. DISCUSSION 25 The parties dispute whether the amount in controversy exceeds the jurisdictional 26 threshold. The amount in controversy is not clear from the face of the complaint. 27 Plaintiff indicated the case is an unlimited civil case where the harm “exceeds $25,000” 28 but did not further delineate his damages. See Compl. Defendant’s notice of removal 2 Case 2:21-cv-08607-MCS-KS Document 20 Filed 01/12/22 Page 3 of 5 Page ID #:158

1 alleged Plaintiff’s damages would ultimately exceed $75,000 because he suffered wage 2 loss, hospital and medical expenses, general damages, loss of earning capacity, and 3 incidental damages. Notice of Removal ¶ 9. Defendant did not substantiate this 4 calculation with any evidence in the notice of removal. 5 Plaintiff argues Defendant’s conclusory allegations about the amount in 6 controversy are insufficient. Mem. 3. The Court agrees. The Ninth Circuit has allowed 7 courts to consider “facts presented in the removal petition as well as any ‘summary- 8 judgment-type evidence relevant to the amount in controversy at the time of removal.’” 9 Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) 10 (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). 11 “Conclusory allegations as to the amount in controversy are insufficient.” Id. at 1090– 12 91 (citing Gaus, 980 F.2d at 567). 13 Defendant presented no evidence in his notice of removal the Court could use to 14 divine an overall estimate of damages. The only direct evidence Defendant presents is 15 that Plaintiff has produced records detailing $45,277.00 of medical expenses. Opp’n, 16 Mekha Decl. ¶ 4, ECF No. 13. Defendant also presents evidence that Plaintiff will need 17 future spinal surgery, id., that Plaintiff “made a mid-six figure settlement demand,” id. 18 ¶ 5, and that Plaintiff declined to stipulate that his damages did not exceed $75,000, id. 19 ¶ 6. 20 Defendant provides no evidence indicating what the spinal surgery would cost, 21 so this piece of evidence is an impermissible conclusory, speculative allegation that the 22 surgery will cost tens of thousands of dollars. Matheson, 319 F.3d at 1090–91. That 23 Plaintiff declined to stipulate to reduced damages is of no consequence. Governing law 24 provides that the defendant must show by a preponderance of the evidence that damages 25 exceed the amount in controversy. Guglielmino, 506 F.3d at 699. Plaintiff declining to 26 agree to Defendant’s stipulation does not prove anything. Finally, the settlement 27 demand is only relevant evidence of the amount in controversy “if it appears to reflect 28 a reasonable estimate of the plaintiff’s claim.” Cohn v. Petsmart, Inc., 281 F.3d 837, 3 Case 2:21-cv-08607-MCS-KS Document 20 Filed 01/12/22 Page 4 of 5 Page ID #:159

1 840 (9th Cir. 2002). Here, Defendant provides no information about how Plaintiff 2 calculated damages in this “mid-six figure” settlement demand. Without any context, 3 this “figure appears to be an inflated and arbitrary number designed to set out an initial 4 bargaining position and anchor future negotiations” rather than a true reflection of any 5 value of the case. Briest v. Knot Standard LLC, No. CV 20-02519-CJC (PVCx), 2020 6 WL 2572457, at *3 (C.D. Cal. May 20, 2020). 7 Thus, the only evidence Defendant presents toward the amount in controversy is 8 the $45,277.00 in medical bills. Any other calculations are based on unsubstantiated 9 speculation. Because Defendant does not provide the Court the evidence necessary to 10 calculate damages, the Court concludes Defendant has not shown by a preponderance 11 of the evidence the amount in controversy exceeds $75,000. Diversity jurisdiction is 12 lacking. Remand is appropriate. 28 U.S.C. § 1447(c). The Court grants the motion. 13 IV. ATTORNEY’S FEES 14 Plaintiff requests $3,150 in fees. Mot. 2; Shkolnikov Decl. ¶ 10, ECF No. 12-1. 15 “An order remanding the case may require payment of just costs and any actual 16 expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. 17 § 1447(c). These costs are discretionary, Martin v. Franklin Cap. Corp., 546 U.S. 132, 18 139 (2005), but if an objectively reasonable basis for removing the case exists, a court 19 should deny fees. Garner v. UICI, 508 F.3d 559, 561 (9th Cir. 2007) (citing Martin, 20 546 U.S. at 141). Here, there was an objectively reasonable basis to remove the case. 21 Damages could very well exceed $75,000. Defendant failed to provide evidence that 22 would allow the Court to find the amount in controversy more likely than not exceeds 23 $75,000. Defendant possibly could have—he just did not do so. The failure to present 24 competent evidence upon this motion does not make the removal objectively 25 unreasonable. Thus, the Court declines to award fees. 26 /// 27 28 4 Case 2:21-cv-08607-MCS-KS Document 20 Filed 01/12/22 Page 5 of 5 Page ID #:160

1 V. CONCLUSION 2 The Court grants the motion. The case is remanded to the County of Los Angeles 3 Superior Court, No. 21STCV10521. The parties’ stipulation to remand (ECF No. 19) is 4 denied as moot. The Court directs the Clerk to effect the remand and close the case. 5 6 7 IT IS SO ORDERED. 8

9 Dated: January 12, 2022

MARK C. SCARSI

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UNITED STATES DISTRICT JUDGE

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