I. INTRODUCTION

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25 Plaintiff Rashon Hayes filed this putative wage-and-hour class action against 26 Defendant Salt & Straw, LLC (“Salt & Straw”) and unnamed Does in Los Angeles 27 County Superior Court. (Dkt. 1-5 Ex. A [Complaint, hereinafter “Compl.”].) Salt & 1 Straw removed the action to this Court pursuant to the Class Action Fairness Act of 2005 2 (“CAFA”), 28 U.S.C. § 1332(d). (Dkt. 1 [Notice of Removal, hereinafter “NOR”].) 3 Before the Court is Plaintiff’s motion to remand. (Dkt. 8 [hereinafter “Mot.”].) For the 4 following reasons, the motion is GRANTED.1 5 6 II. BACKGROUND 7 8 Plaintiff worked for Salt & Straw as an hourly non-exempt employee from July 9 2019 to December 2019 in Los Angeles County. (Compl. ¶ 18.) Plaintiff and certain 10 other employees allegedly worked on an “alternative workweek schedule.” (Id. ¶ 28.) 11 Under California law, an alternative workweek schedule is “any regularly scheduled 12 workweek requiring an employee to work more than eight hours in a 24-hour period.” 13 Cal. Lab. Code § 500. If an employer and a unit of employees agree to adopt an 14 alternative workweek schedule, those employees forfeit their right to collect overtime 15 wages for working more than ten hours per day. Id. § 511. In exchange, they are 16 generally scheduled to work fewer days per week and still earn overtime if they work 17 more than forty hours in one week. See id. A proposal to adopt an alternative workweek 18 schedule can be ratified by any “readily identifiable work unit” if it receives more than 19 two-thirds of the votes in a secret ballot. Id. Based on the evidence in the record, 20 approximately 15 percent of Salt & Straw’s hourly employees were part of an alternative 21 workweek unit. (See Dkt. 9-2 ¶ 6.) The Complaint does not include any other details 22 about Plaintiff’s role, salary, or terms of employment. 23 24 On February 20, 2020, Plaintiff brought this suit in Los Angeles County Superior 25 Court. (Compl.) Plaintiff asserts nine causes of action under California’s Labor Code for 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 (1) unpaid overtime wages, (2) unpaid meal period premiums, (3) unpaid rest period 2 premiums, (4) unpaid minimum wages, (5) final wages not timely paid, (6) untimely 3 wages during employment, (7) non-compliant wage statements, (8) failure to keep 4 accurate payroll records, and (9) unreimbursed business expenses, as well as a tenth 5 cause of action for (10) violations of California’s Unfair Competition Law. (See id.) 6 Plaintiff asserts these claims on behalf of a proposed class of “[a]ll current and former 7 hourly-paid or non-exempt employees who worked for any of the Defendants within the 8 State of California at any time during the period from four years preceding the filing of 9 this Complaint to final judgment and who reside in California.” (Id. ¶ 13.) Plaintiff also 10 proposes a subclass of employees who earned non-discretionary bonuses (“Subclass A”) 11 and another subclass of employees who worked on an alternative workweek schedule 12 (“Subclass B”). (Id.) 13 14 Plaintiff alleges broadly that Salt & Straw engaged in “a pattern and practice of 15 wage abuse against their hourly-paid or non-exempt employees” that “involved, inter 16 alia, failing to pay them for all regular and/or overtime wages earned and for missed meal 17 periods and rest breaks in violation of California law.” (Id. ¶ 25.) The boilerplate 18 allegations in the complaint assert that Salt & Straw failed to properly compensate 19 employees, forced them to work through required breaks, and failed to keep accurate 20 records. (See id. ¶¶ 24–50.) Salt & Straw also allegedly failed to include non- 21 discretionary bonuses in the regular rate of pay used to calculate overtime wages for 22 Subclass A employees, (id. ¶ 27), and failed to properly compensate Subclass B 23 employees for overtime wages based on their alternative workweek schedule, (id. ¶ 28). 24 Plaintiff has not alleged any other facts about Salt and Straw’s practices and policies, the 25 frequency of the alleged Labor Code violations, or the resulting damages. 26 27 Plaintiff served Salt & Straw with a summons and the Complaint on March 2, 1 this Court pursuant to CAFA. (NOR.) The Court now considers Plaintiff’s motion to 2 remand to state court. 3 4 III. ANALYSIS 5 6 A civil action brought in a state court but over which a federal court may exercise 7 original jurisdiction may be removed to a federal district court by the defendant. CAFA 8 provides original federal jurisdiction over class actions in which the amount in 9 controversy exceeds $5 million, there is minimal diversity between the parties, and the 10 number of proposed class members is at least 100. 28 U.S.C. §§ 1332(d)(2), 11 1332(d)(5)(B). “Congress designed the terms of CAFA specifically to permit a defendant 12 to remove certain class or mass actions into federal court. . . [and] intended CAFA to be 13 interpreted expansively.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 14 2015). The Supreme Court has also held that “no antiremoval presumption attends cases 15 invoking CAFA” because CAFA was enacted to facilitate federal courts’ adjudication of 16 certain class actions. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 17 550 (2014). 18 19 Plaintiff contends that this case must be remanded because Salt & Straw has not 20 properly established that the amount in controversy exceeds $5 million.2 “[A] 21 defendant’s notice of removal need include only a plausible allegation that the amount in 22 controversy exceeds the jurisdictional threshold.” Dart Cherokee, 135 S. Ct. at 554. 23 However, if the asserted amount in controversy is contested after removal, “[e]vidence 24 establishing the amount is required.” Id. at 554. “In such a case, both sides submit proof 25 and the court decides, by a preponderance of the evidence, whether the amount-in- 26 27 2 Plaintiff does not dispute that the other two CAFA requirements—minimal diversity and minimum class size—have been met. (See generally Mot.) Plaintiff and Salt & Straw are citizens of different 1 controversy requirement has been satisfied.” Id. at 550. Ultimately, the defendants bear 2 the burden of proving that the amount in controversy is met. See Rodriguez v. AT&T 3 Mobility Servs. LLC, 728 F.3d 975, 978 (9th Cir. 2013). “Under this system, CAFA’s 4 requirements are to be tested by consideration of real evidence and the reality of what is 5 at stake in the litigation, using reasonable assumptions underlying the defendant’s theory 6 of damages exposure.” Ibarra, 775 F.3d at 1198. 7 8 Plaintiff challenges Salt & Straw’s removal on two grounds. First, he argues that 9 its evidence is unreliable and must be disregarded. Second, he argues that Salt & Straw 10 “relied on inappropriate and inaccurate assumptions in its calculations [of the amount in 11 controversy].” (Mot. at 7.) The Court rejects Plaintiff’s first argument, but agrees that 12 Salt & Straw relied on unreasonable assumptions to estimate the amount in controversy. 13 14 A. Competent Evidence 15 16 Because Plaintiff contests the amount in controversy, Salt & Straw must provide 17 evidence to support their calculations. To satisfy that requirement, it submits declarations 18 from Michelle Lacy, its Human Resource Manager, (Dkt. 1-4 [hereinafter “Lacy Decl.”]; 19 Dkt. 9-2 [hereinafter “Lacy Supp. Decl.”]), and Armine Antonyan, its counsel in this 20 action, (Dkt. 1-2; Dkt. 9-1). Based on her review of company records, Lacy offers the 21 following facts: (1) Salt & Straw employed approximately 1,329 hourly employees in 22 California between February 20, 2016 and February 20, 2020; (2) these employees 23 worked approximately 46,960 workweeks; (3) the average hourly rate for these 24 employees during this period was $14.19. (Lacy Supp. Decl. ¶¶ 8–9.) Lacy presents this 25 information based on her review of regularly kept payroll records. (Id. ¶ 2.) 26 27 Plaintiff argues that Lacy’s declarations must be rejected because Salt & Straw 1 declarations well-supported and competent evidence for the purposes of this motion. See 2 Ibarra v. Manheim Invs., 775 F.3d 1193, 1197 (9th Cir. 2015) (“The parties may submit 3 evidence outside the complaint, including affidavits or declarations, or other ‘summary- 4 judgment-type evidence relevant to the amount in controversy at the time of removal.’” 5 (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). 6 Because the Plaintiff has offered no competing evidence and because there is no 7 indication that it is unreliable, Lacy’s declaration is sufficient to satisfy Salt & Straw’s 8 burden of production. See Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 398 (9th Cir. 9 2010); Cavada v. Inter-Cont’l Hotels Grp., Inc., 2019 WL 5677846, at *2-9 (S.D. Cal. 10 Nov. 1, 2019) (finding that declarations of the director of human resources, along with 11 allegations in the complaint, sufficient to demonstrate the amount in controversy 12 exceeded $5 million); Andrade v. Beacon Sales Acquisition, Inc., 2019 WL 4855997, at 13 *4 (C.D. Cal. Oct. 1, 2019) (similar); Alvarez v. Office Depot, Inc., 2017 WL 5952181, at 14 *3 (C.D. Cal. Nov. 30, 2017) (similar). 15 16 B. Assumed Violation Rates 17 18 Plaintiff next argues that Salt & Straw’s estimate of the amount in controversy 19 relies on unreasonable and unfounded assumptions. As is common in wage-and-hour 20 cases, the amount in controversy turns on the frequency of the alleged violations of 21 California labor laws. See, e.g., Gant v. ALDI, Inc., 2020 WL 1329909 (C.D. Cal. Mar. 22 20, 2020); Lopez v. First Student, Inc., 2019 WL 8137149 (C.D. Cal. Dec. 2, 2019). The 23 complaint does not specify how often the violations occurred, but alleges only a “pattern 24 and practice of wage abuse.” (Compl. ¶ 25.) In Arias v. Residence Inn by Marriott, the 25 Ninth Circuit addressed how courts should resolve the resulting ambiguity. 936 F.3d 920 26 (9th Cir. 2019). It explained that a removing defendant is entitled to make “reasonable 27 assumptions” about violation rates to estimate the amount in controversy. Id. at 925. 1 Id. These assumptions must also cohere with the actual evidence presented by the 2 parties. See id. Importantly, according to Arias, a plaintiff who alleges a “pattern and 3 practice” of labor law violations does not allege “that this ‘pattern and practice’ is 4 universally followed every time the wage and hour violation could arise.” Id. (quoting 5 Ibarra, 775 F.3d at 1199). In other words, “a ‘pattern and practice’ of doing something 6 does not necessarily mean always doing something.” Ibarra, 775 F.3d at 1198–99. 7 8 In its opposition, Salt & Straw contends that it can reach the $5 million threshold 9 based on the following “conservative” estimates of only four claims: 10 11  Overtime wage claim (first cause of action): $666,362.40 12  Minimum wage claim (fourth cause of action): $699,500 13  Timely final wages or “waiting time” claim (fifth cause of action): $2,927,508 14  Wage statement claim (seventh cause of action): $942,250 15  Total: $5,235,620.40 16 17 (Dkt. 9 [Salt & Straw’s Opposition to Mot., hereinafter “Opp.”] at 2.) After reviewing 18 the allegations in the complaint and the evidence presented by Salt & Straw, the Court 19 finds that these estimates rely on unreasonable and unsubstantiated assumptions. 20 21 1. Overtime Wage Claim (First Cause of Action) 22 23 Plaintiff’s first cause of action is for unpaid overtime wages. See Cal. Lab. Code 24 § 510. As discussed above, Lacy found that Salt & Straw employed 1,329 qualifying 25 employees who worked 46,960 workweeks at $14.19/hour during the relevant period. 26 (Lacy Supp. Decl. ¶¶ 8–9.) To calculate a “conservative” estimate for Plaintiff’s 27 overtime wage claim, Salt & Straw assumed one hour of unpaid overtime per employee 1 this claim as follows: 46,960 workweeks x 1 hour of wages x $14.19/hour = $666,362.40. 2 (See Opp. at 13.)3 3 4 This assumption ignores Salt & Straw’s own evidence. After reviewing payroll 5 records from February 20, 2017 to March 19, 2020, Lacy found that “there were at least 6 170 employees, who generally worked in excess of eight (8) hours each work day . . . and 7 1080 employees who generally worked five (5) hours in a work day.” (Lacy Supp. Decl. 8 ¶ 6.) In other words, 86 percent of Salt & Straw’s hourly employees generally worked a 9 schedule that would not allow them to earn any overtime wages, even if they worked 10 seven days a week. (See id.); Cal. Lab. Code § 510 (overtime wages earned for work in 11 excess of eight hours in one workday or 40 hours in one workweek). The assumed 12 violation rate of one-hour unpaid overtime per employee workweek directly contradicts 13 this evidence and is therefore unreasonable. See Arias, 936 F.3d at 925. A reasonable 14 estimate would be limited to the 14 percent of employees that might have worked 15 overtime hours. This puts the amount in controversy for this claim closer to $150,000,4 16 and brings Salt & Straw’s “conservative” estimate of the total amount in controversy 17 below the $5 million threshold. 18 19 2. Waiting Time Penalties (Fifth Cause of Action) 20 21 Plaintiff’s fifth cause of action is for violations of California Labor Code § 203, 22 which provides that “[i]f an employer willfully fails to pay, without abatement or 23 reduction . . . any wages of an employee who is discharged or who quits, the wages of the 24

25 3 It is not clear why Salt & Straw used the employees’ regular rate of pay in this calculation. It also calculated an estimate based on an average overtime rate of $21.20 per hour: 46,960 workweeks x 1 26 hour of wages x $21.20/hour = $995,552.00. (See Opp. at 13.) 27 4 46,960 workweeks x 1 hour of wages x $21.20/hour x 14% of employee workweeks = $ 149,332.80. Without evidence addressing the distribution of employee work hours, it is impossible to assess whether 1 employee shall continue as a penalty from the due date thereof at the same rate until paid 2 or until an action therefor is commenced; but the wages shall not continue for more than 3 30 days.” Cal. Lab. Code § 203. In other words, an employer accrues a penalty of one 4 day’s wages for every day that the employee’s final wages are willfully withheld—with a 5 maximum penalty of thirty days’ wages. See id. Salt & Straw asserts that the amount in 6 controversy for Plaintiff’s final wages claim is $2,927,508. This estimate also relies on 7 several assumptions that the Court finds unreasonable. 8 9 To calculate the amount in controversy for Plaintiff’s final wages claim, Salt & 10 Straw assumes that every employee who was terminated during the relevant period was 11 denied final wages for the statutory maximum thirty days. (See Opp. at 9–11; NOR 12 ¶¶ 34–35). This assumption is not supported by the Complaint, which does not allege 13 uniform violations. (See Compl. ¶ 89 [“During the relevant time period, Defendants 14 intentionally and willfully failed to pay Plaintiff and the other class members who are no 15 longer employed by Defendants their wages, earned and unpaid, within seventy-two (72) 16 hours of their leaving Defendants’ employ.”].) While Plaintiff alleges a “pattern and 17 practice” of violations, this does not support a 100 percent violation rate absent other 18 evidence, which Salt & Straw has not offered. See Arias, 936 F.3d at 925. As this Court 19 explained in a similar case, “[a] removing party can assume extreme violation rates only 20 if supported by allegations in the pleadings.” Brancaccio v. Knauf Insulation, Inc., 2020 21 WL 1686253, at *4 (C.D. Cal. Apr. 7, 2020) (citing Arias, 936 F.3d at 926). Nothing in 22 the instant complaint suggests that this is an extreme case. See id. 23 24 Nor do Plaintiff’s other claims support help establish a 100 percent violation rate. 25 Salt & Straw appears to argue that because Plaintiff alleges a pattern and practice of 26 overtime and minimum wage violations, it is reasonable to assume that every employee 27 was underpaid in his or her final wages. The Court disagrees. First, as discussed above, 1 viable overtime wage claims. (See Lacy Supp. Decl. ¶ 6.) The Court also finds it 2 unreasonable to assume that every employee’s final paycheck reflected a minimum wage 3 violation. In its opposition to the instant motion, Salt & Straw assumes a violation rate of 4 one hour of off-the-clock work for every three pay periods. (Opp. at 15.) This plainly 5 contradicts the 100 percent violation rate assumed here. Regardless, even if Salt & Straw 6 could reasonably assume one hour off-the-clock work for every pay period, this would be 7 an average violation rate across thousands of employees and employee pay periods. It 8 requires another leap to assume that every employee was underpaid in his or her final 9 paycheck. With no allegations or evidence suggesting a uniform policy of withholding 10 final wages, the Court finds this assumption unreasonable and therefore finds Salt & 11 Straw’s $2,927,508 estimate unreasonably inflated. See Arias, 936 F.3d at 925–26. 12 13 3. Wage Statement Claim (Seventh Cause of Action) 14 15 Plaintiff’s seventh cause of action is for inaccurate wage statements in violation of 16 California Labor Code § 226(a). (See Compl. ¶¶ 99–105.) Salt & Straw estimates the 17 amount in controversy for this claim at $942,250. Once again, Salt & Straw relies on a 18 100 percent violation rate, which the Court finds unreasonable. Specifically, Salt & 19 Straw assumes that every wage statement for every employee during the relevant period 20 was non-compliant. (See Opp. at 14.) Quoting a pre-Arias district court decision, Salt & 21 Straw contends that “[i]t is not unreasonable to assume that, with this many violations 22 alleged, every one of the wage statements issued during the class period could potentially 23 have been noncompliant.” (Id. [quoting Mejia v. DHL Express (USA), Inc., 2015 WL 24 2452755, at *6 (C.D. Cal. May 21, 2015)].) Arias casts serious doubt on this logic. The 25 Ninth Circuit explained that a removing defendant is entitled to make “reasonable 26 assumptions” about violation rates grounded in the allegations in the pleadings. See 27 Arias, 936 F.3d at 925–26. The number of claims in a wage-and-hour complaint has no 1 unreasonable to assume a 100 percent violation rate for Plaintiff’s substantive claims, the 2 Court fails to understand why it would be reasonable to assume a 100 percent violation 3 rate for his derivative claims. See id. Accordingly, the Court finds Salt & Straw’s 4 $942,250 estimate for Plaintiff’s wage statement claim is unreasonably inflated. 5 6 4. Remaining Claims & Total Amount in Controversy 7 8 The only other claim addressed by Salt & Straw is Plaintiff’s fourth cause of action 9 for minimum wage violations or “off-the-clock” work. In its notice of removal, Salt & 10 Straw estimated the amount in controversy for this claim at approximately $2.4 million. 11 (NOR ¶¶ 38–39.) To reach this figure, Salt & Straw assumed a minimum wage violation 12 in every pay period for every employee throughout the relevant period. (See id.) In the 13 instant motion, Plaintiff challenged this assumption as unreasonable, unrealistic, and 14 unsupported by the allegations in the complaint. (See Mot. at 8.) In its opposition, Salt 15 & Straw declined to respond to this argument and instead offered a more conservative 16 estimate of $699,500—based on an assumed violation rate of one hour of off-the-clock 17 work for every three pay periods. (See Opp. at 15.) The Court finds this estimate 18 reasonable. However, the problems discussed above brings the total amount in 19 controversy below the $5 million threshold. Because Salt & Straw made no attempt to 20 defend the assumptions underlying its original $2.4 million assessment of Plaintiff’s 21 minimum wage claim, the Court cannot revisit that figure here. See Ibarra, 775 F.3d at 22 1199 (holding that the removing party has “the burden to show that its estimated amount 23 in controversy relie[s] on reasonable assumptions”). 24 25 In its notice of removal and its opposition to the instant motion, Salt & Straw failed 26 to address Plaintiff’s other six causes of actions and request for other forms of relief, 27 including attorney fees. The Court cannot sua sponte consider these claims in its own 1 || that the removing defendant has the burden of establishing by a preponderance of the 2 |}evidence that the amount in controversy satisfies CAFA); Arias, 936 F.3d at 927 (“The 3 defendant retains the burden [] of proving the amount of future attorneys’ fees by a 4 || preponderance of the evidence.”’). In its opposition to the instant motion, Salt & Straw 5 offered an estimate of the amount in controversy that barely cleared the $5 million 6 ||threshold. Because that estimate relied on several unreasonable assumptions, it must be 7 ||rejected. Although Salt & Straw’s notice of removal included higher estimates, the 8 ||evidence in the record undercuts those initial figures, (compare NOR with Lacey Supp. 9 ||Decl.), and Salt & Straw failed to defend its more aggressive estimates in opposition to 10 instant motion, (see Opp.). 1 12 || IV. CONCLUSION 13 14 For the foregoing reasons, Salt & Straw has not carried its burden to show that the 15 || Court has subject matter jurisdiction over this action under CAFA. Accordingly, 16 || Plaintiffs motion to remand is GRANTED, and this case is hereby REMANDED to Los 17 || Angeles County Superior Court. 18 19 DATED: May 27, 2020 Lo f we x TF 21 CORMAC J. CARNEY 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28