I. INTRODUCTION AND BACKGROUND

23 24 Plaintiff Jason Heatley initially filed this putative class action against Defendant 25 Lin Rogers Electrical Contractors, Inc. and unnamed does in Orange County Superior 26 Court. (Dkt. 1 [Notice of Removal], Dkt. 3, Ex. C [State Court Complaint, hereinafter 27 “Compl.”].) Plaintiff alleges that Defendant violated several of California’s labor laws 28 and regulations. (Compl.) On January 7, 2022, Defendant removed the action to this -1- Case 8:22-cv-00042-CJC-KES Document 24 Filed 03/10/22 Page 2 of 9 Page ID #:236

1 Court pursuant to the Class Action Fairness Act or “CAFA.” (Id.) Plaintiff now moves 2 to remand the case, arguing that Defendant has failed to show that the amount in 3 controversy satisfies CAFA’s jurisdictional threshold of $5,000,000. (Dkt. 14 [Plaintiff’s 4 Motion to Remand, hereinafter “Mot.”].) For the following reasons, Plaintiff’s motion is 5 DENIED.1 6 7 II. LEGAL STANDARD AND DISCUSSION 8 “CAFA provides the federal district courts with ‘original jurisdiction’ to hear a 9 ‘class action’ if the class has more than 100 members, the parties are minimally diverse, 10 and the ‘matter in controversy exceeds the sum or value of $5,000,000.’” Standard Fire 11 Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013). “Congress designed the terms of CAFA 12 specifically to permit a defendant to remove certain class or mass actions into federal 13 court . . . [and] intended CAFA to be interpreted expansively.” Ibarra v. Manheim Invs., 14 Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). “[N]o antiremoval presumption attends cases 15 invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions 16 in federal court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 17 (2014). 18 “In order to remove a class action filed in state court to federal court, the defendant 19 must file ‘a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil 20 Procedure[,] . . . containing a short and plain statement of the grounds for removal.’” 21 Salter v. Quality Carriers, Inc., 974 F.3d 959, 962 (9th Cir. 2020) (quoting 28 U.S.C. § 22 1446(a)). Where “‘it is unclear or ambiguous from the face of a state-court complaint 23 whether the requisite amount in controversy is pled, the removing defendant bears the 24 burden of establishing, by a preponderance of the evidence, that the amount in 25 controversy exceeds the jurisdictional threshold.’” Fritsch v. Swift Transp. Co. of Ariz., 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for March 14, 2022, at 1:30 p.m. is hereby vacated and off calendar.

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1 LLC, 899 F.3d 785, 793 (9th Cir. 2018) (quoting Urbino v. Orkin Servs. Of Cal., Inc., 726 2 F.3d 1118, 1121–22 (9th Cir. 2013)). 3 4 Plaintiff’s Complaint does not identify a specific amount in controversy. 5 Defendant’s Notice of Removal asserts, however, that based upon the allegations in 6 Plaintiff’s Complaint and a declaration submitted from one of Defendant’s employees, 7 that the amount in controversy exceeds $5,000,000. Plaintiff’s primary argument is that 8 this case should be remanded because Defendant has not submitted sufficient evidentiary 9 proof that the amount in controversy is met. (Mot. at 5–14.) But the Ninth Circuit has 10 already foreclosed such arguments when a party launches a facial jurisdictional attack 11 rather than a factual attack. “A ‘facial’ attack accepts the truth of the plaintiff’s 12 allegations but asserts that they ‘are insufficient on their face to invoke federal 13 jurisdiction.’” Leite, 749 F.3d at 1121 (quoting Safe Air for Everyone v. Meyere, 373 14 F.3d 1035, 1039 (9th Cir. 2004)). “For a facial attack, the court, accepting the allegations 15 as true and drawing all reasonable inferences in the defendant’s favor, ‘determines 16 whether the allegations are sufficient as a legal matter to invoke the court’s jurisdiction.’” 17 Salter, 947 F.3d at 964. “A factual attack, by contrast, ‘contests the truth of the 18 plaintiff’s factual allegations, usually by introducing evidence outside the pleadings.’” Id. 19 (quoting Safe Air, 373 F.3d at 1039). “When a factual attack is mounted, the responding 20 party ‘must support her jurisdictional allegations with ‘competent proof’ . . . under the 21 same evidentiary standard that governs in the summary judgment context.’” Id. (internal 22 citation omitted). 23 24 Here, Plaintiff only launches a facial attack on Defendant’s Notice of Removal. 25 Though Plaintiff asserts that Defendant’s amount in controversy calculations are 26 unsupported and speculative, (Mot. at 5–14), Plaintiff offers no evidentiary support for 27 those contentions. See Salter, at 964 (finding that plaintiff had only made a facial attack 28 to the defendant’s notice of removal when plaintiff did not assert that plaintiff

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1 “misinterpreted the thrust of his complaint,” “did not offer any declaration or evidence 2 that challenged the factual bases of [the defendant’s] allegations,” and did not challenge 3 the number of employees the defendant asserted worked for defendant during the class 4 period). Nor is Plaintiff’s argument that Defendant’s amount in controversy calculations 5 are unsupported accurate. In fact, Defendant submitted a declaration from William 6 Travis Billings, Chief Human Resources Officer for Defendant. (Dkt. 3 [hereinafter 7 “Billings Decl.”].) Mr. Billings provided that Defendant has approximately 464 non- 8 exempt employees in California, (id. ¶ 11); these non-exempt employees earned 9 approximately $27.40 per hour over the course of the class period, (id. ¶ 12); as well as 10 estimations of the number of workweeks, meal periods, rest breaks, recovery breaks, 11 reimbursement claims, wage statement claims, and waiting time claims at issue in this 12 case based upon Plaintiff’s allegations, (id. ¶¶ 7–24). 13 14 Indeed, Defendant’s Notice of Removal need only contain a “‘short and plain 15 [statement]” containing plausible allegations that all jurisdictional requirements are met 16 and “need not contain evidentiary submissions” at all. Dart Cherokee, 574 U.S. at 84; 17 see also Arias v. Residence Inn by Marriott, 936 F.3d 920, 922 (quoting Barra, 755 F.3d 18 at 1197-99); see Muniz v. Pilot Travel Ctrs., LLC, 2007 WL 1302504, at *7 (E.D. Cal. 19 May 1, 2007) (“There is no obligation by defendant to support removal with production 20 of extensive business records to prove or disprove liability and/or damages.[.]”). Though 21 both parties “may ‘submit proof . . . whether the amount-in-controversy requirement has 22 been satisfied,’” a plaintiff is not required to do so. Salter, 974 F.3d at 963 (emphasis 23 added). 24 25 At any rate, Defendant jurisdictional allegations in its Notice of Removal 26 concerning the amount in controversy upon the declaration and Plaintiff’s Complaint are 27 reasonable. Defendant asserts that based on the claims in Plaintiff’s Complaint and Mr. 28

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1 Billings’ declaration, $14,499,630.50 is in controversy,2 clearly exceeding CAFA’s 2 $5,000,000 requirement.3 (Notice of Removal ¶¶ 35, 68-70.) Defendant reached that 3 figure by aggregating all of Plaintiff’s various wage and hour claims for approximately 4 464 hourly, non-exempt employees that worked for Defendant during the class period. 5 (Id. ¶ 34; Billingsley Decl. ¶12.) Defendant also made individual calculations for each 6 claim. For example, for Plaintiff’s failure to pay timely wages claim, Defendant 7 calculated that Plaintiff sought to recover $100 for each failure to pay each employee 8 over 8,136 workweeks, based on employment and payroll data, amounting to $813,600 9 for this claim alone. (Id. ¶¶ 36, 39.) Similar calculations were made for Plaintiff’s meal 10 period claim ($2,130,852.23) (id. ¶¶ 42-45); rest period claim, ($2,130,852.23) (id. ¶¶ 46- 11 49); recovery period claim ($2,841,136.31) (id. ¶¶ 50-53); business reimbursement claim 12 ($297,550) (id. ¶¶54-55); inaccurate wage statements claim ($2,034,400) (id. ¶¶56-59); 13 waiting time penalties claim ($1,718,160) (id. ¶¶ 60-63); and possible attorney’s fees 14 ($3,346,679.73) (id. ¶¶64-67).4 15 16 Plaintiff, nevertheless, argues that Mr. Billings’ declaration unreasonably assumes 17 that Defendant violated each wage and hour law at issue 100% of the time, unsupported 18 by Plaintiff’s Complaint. (Mot. at 5-13.) To support that, Plaintiff points to allegations 19 in the Complaint that state that Defendant “often” or “regularly” violated California’s 20

21 2 In Defendant’s Notice of Removal, Defendant asserted that the amount in controversy was 16,733,398.66. In opposition, Defendant explained that there was an inadvertent calculation error 22 regarding the amount in controversy for Plaintiff’s meal and rest period claims. (Opp. at 25 n. 5.) The amount in controversy for each claim, according to Defendant, is $2,130,852.23 rather than the 23 $2,841,136.31 initially asserted. (Id.) 24 3 In a declaration submitted to the Court from defense counsel, attorney Rachel T. Segal provides that Plaintiff failed to meet and confer with defense counsel prior to filing the present motion as required 25 under Local Rule 7-3. (Dkt. 17 [Declaration of Rachel T. Segal in Further Support of Defendant’s Opposition to Plaintiff’s Motion to Remand] ¶ 3.) Plaintiff’s counsel is advised to abide by all local 26 rules moving forward. Failure to meet the basic requirements for filing a motion may result in the 27 Court’s refusal to entertain such motions and/or the appropriate sanctions. 4 Defendant did not provide a dollar estimation for Plaintiff’s failure to pay overtime claim, noting that 28 the claim was “vague” but “to the extent that Plaintiff asserts that he is entitled to additional relief on this basis, this would increase the amount in controversy.” (Notice of Removal ¶¶ 40, 41.)

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1 wage and hour laws, rather than “all the time.” (Mot. at 8.) But as Plaintiff 2 acknowledges, “courts are divided about whether or not a removing defendant may 3 assume a 100% violation rate in asserting an amount in controversy.” Sanchez v. Russell 4 Sigler, Inc., 2015 WL 12765359 (C.D. Cal. Apr. 28, 2015). And the Court agrees with 5 Defendant, (Dkt. 15 [Defendant’s Opposition to Motion to Remand, hereinafter “Opp.”] 6 at 11–12), that Plaintiff’s Complaint is broad enough to place most, if not all, of the 7 applicable pay periods, wage statements, and business expenses across the class period in 8 controversy for every employee in the class since Plaintiff’s Complaint directly states that 9 Defendant’s conduct amounted to routine and systematic violations of California’s wage 10 and hour laws. (See, e.g., Compl. ¶ 26 [it was Defendant’s “policy” not to compensate 11 employees for overtime appropriately]; ¶ 22 [non-exempt employees were not properly 12 paid due to “Defendant’s uniform failure” to include all forms of compensation]; ¶¶ 17- 13 18 [Defendant “uniformly failed and continues to fail” to pay employees within seven 14 calendar days following the close of the payroll period]; ¶ 33 [employees were 15 “regularly denied legally compliant rest breaks”] (emphases added).) 16 17 Nor is defendant required to review extensive employee records and date to 18 ascertain the exact violation rate for the purposes of removal. See Ritenour v. Carrington 19 Mortg. Servs. LLC, 228 F. Supp. 3d 1025, 1031 (C.D. Cal. 2017) (The removing party’s 20 burden is “not daunting,” and the removing defendant is not obligated to “research, state, 21 and prove the plaintiff’s claims for damages.”). Nevertheless, Defendant in opposition 22 painstakingly addresses each one of the calculations Plaintiff challenges and explains 23 why they are reasonable and supported in the law. For example, to calculate the amount 24 in controversy for Plaintiff’s meal period and rest break claims, Defendant explains that it 25 estimated that there were three weekly meal and rest break period violations based on the 26 broad and sweeping allegations in Plaintiff’s Complaint concerning these claims and Mr. 27 Billings’ declaration. (Opp. at 23–25.) District courts have routinely found such 28 calculations reasonable when a plaintiff has placed no limits on such claims in their

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1 complaint, as Plaintiff did here. See, e.g., Navarro v. Servisair, LLC, 2008 WL 3842984, 2 at * 9 (N.D. Cal. Aug. 14, 2008) (assuming three weekly meal period violations was 3 reasonable where the plaintiff “[did] not limit his claim by stating that only a certain 4 number of hours went uncompensated”); Stanley v, Distribution Alternatives, Inc., 2017 5 WL 6209822, *2 (C.D. Cal. Dec. 7, 2017) (it is reasonable to assume “three missed rest 6 breaks, and three missed meal breaks per week” where the complaint offers no guidance 7 as to the frequency of these violations). Defendant also explains that it is reasonable for 8 it to assume a 100% violation rate for Plaintiff’s wage statement claim because Plaintiff 9 provides no suggestion that any wage statement was ever compliant and presents no 10 evidence to the contrary. Bermejo v. Lab’y. Corp., 2020 WL 6392558, at *7 (C.D. Cal. 11 Nov. 2, 2020) (finding that assumption of 100% violation of wage statements reasonable 12 because, based on plaintiff’s allegation of “practices and policies of underpaying wages,” 13 “every wage statement (covering a two-week period) likely contained an alleged error”); 14 Vikram, 2017 WL 4457575, at *4 (finding reasonable defendant’s 100% violation rate 15 assumption because of plaintiff's lack of evidence to the contrary and allegations 16 suggesting the off-the clock work occurred every day). 17 Defendant also persuasively argues that even more conservative calculations would 18 easily satisfy CAFA’s amount in controversy requirement. Specifically, Defendant 19 argues that even assuming a 30% violation rate for recovery periods ($639,285.84) (Opp. 20 at 27), a $297,550.00; a 50% violation rate for Plaintiff’s waiting time penalty claim 21 ($859,084.80) (Opp. at 28), and 25% of attorneys’ fees only for Plaintiff’s wage and hour 22 claim ($508,500.00) (Opp. at 30), Plaintiff meets the amount in controversy. And courts 23 have routinely found such calculations reasonable. See, e.g., Ortega v. ITS Technologies, 24 2021 WL 4934978 at * 5 (C.D. Cal. Oct. 22, 2021) (75% violation rate for waiting time 25 penalties); Cortez v. Parker-Hannifin Corp., 2020 WL 5905435 at *3 (C.D. Cal., Oct. 6, 26 2020) (75% violation rate for waiting time penalties); Marquez v. Toll Global 27 Forwarding (USA) Inc., 2018 WL 3046965 at *4 (C.D. Cal., June 19, 2018) (50% 28 violation rate for waiting time penalties); Paul, Johnson, Alston & Hunt v. Graulty, 886

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1 F. 2d 26, 272 (9th Cir. 1989) (noting with approval that the “bench mark” percentage for 2 the fee award should be 25 percent.”) (citation omitted). 3 Plaintiff’s attempt to limit the scope of his allegations by pointing to words used in 4 his Complaint, describing the rate of Defendant’s violations as “often” or “not provided 5 with at all” is not compelling. Indeed, Plaintiff’s complaint alleges that Defendant 6 engaged in a “pattern and practice” of violating the Labor Code. (See, e.g. Compl. at ¶¶ 7 17, 18, 22, 26, 33, 79 [“Defendants have a common policy, pattern, and practice of failing 8 to compensate Plaintiff and members of the Class[.]”.) And Defendant “is not required to 9 comb through its records to identify and calculate the exact frequency of violations.” 10 Tajonar v. Echosphere, 2015 WL 4064642, at *3 (S.D. Cal. July 2, 2015). Nor can 11 “Plaintiff . . . simply sit silent and take refuge in the fact that it is Defendant’s burden to 12 establish the grounds for federal jurisdiction. This is especially the case since the 13 knowledge in question–how often Plaintiff claims he was made to work overtime [or 14 missed breaks]–is uniquely within Plaintiff’s possession.” Patel v. Nike Retail Servs., 15 Inc., 58 F. Supp. 3d 1032, 1042 (N.D. Cal. 2014); see also Moppin v. Los Robles Med. 16 Ctr., 2015 WL 5618872, at *3, *5 (C.D. Cal. 2015) (denying remand where plaintiff 17 “offer[ed] no evidence rebutting this violation” rate, despite the opportunity to do so. 18 19 In sum, Defendant bases its amount in controversy on reasonable calculations 20 supported by Plaintiff’s own Complaint and a declaration from Mr. Billings, who is 21 uniquely situated to speak to the scope of Defendant’s employment activities in 22 California. Plaintiff presents absolutely no evidence to rebut those calculations nor does 23 he persuasively assert that Defendant was required to do more. Accordingly, Defendant 24 has satisfied its burden to invoke CAFA’s jurisdiction.

25 // 26 // // 27 // 28 //

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1 | TI. CONCLUSION 3 For the foregoing reasons, Plaintiffs’ motion is DENIED. 5 6 DATED: = March 10, 2022 we ZL 8 9 CORMAC J. CARNEY 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

9.