I. BACKGROUND

19 On July 7, 2020, Plaintiff filed her Complaint in the California Superior 20 Court, Los Angeles County, asserting employment discrimination claims 21 related to her alleged wrongful termination. (See Dkt. 3-1, ¶ 5 “Complaint”). 22 Plaintiff brings claims for: (1) Discrimination (Gov’t Code §§12940); (2) 23 Failure to Prevent Discrimination (Gov’t Code §§ 12940(k)); (3) Failure to 24 Provide Reasonable Accommodation (Gov’t Code §§ 12940); (4) Failure to 25 Engage in a Good Faith Interactive Process (Gov’t Code §§ 12940); (5) 26 1 1 Declaratory Judgment; (6) Failure to Pay Wages (Labor Code §§ 201, 2 226.7, 512); (7) Failure to Provide Meal and Rest Periods (Labor Code §§ 3 201, 512); and (8) Unfair Competition (Business and Professions Code § 4 17200). (Id.). 5 6 On July 9, 2020, Defendant KinderCare Education at Work, LLC 7 (“Defendant” or “KinderCare”) removed the case to this Court. (Dkt. 1). 8 According to Defendant, the amount in controversy is satisfied because 9 “[w]hile working at KinderCare in 2018, Plaintiff’s gross pay was 10 approximately $29,421 … [and] Plaintiff also seeks $1,050.00 in Labor Code 11 §558 penalties and $15,855.84 to compensate her for allegedly missed rest 12 and meal periods” and other “benefits allegedly lost and interest thereon.” 13 (Id. at 3). Defendant also argues that Plaintiff’s claims seeking punitive 14 damages and attorneys’ fees pushes the amount in controversy past the 15 jurisdictional threshold. (See id.). 16 17 On October 6, 2020, Plaintiff moved to remand this case back to the 18 California Superior Court for lack of diversity jurisdiction. (Dkt. 20). 19 Specifically, Plaintiff argues that the amount in controversy is not satisfied. 20 (Id.). Defendant opposed the Motion on October 26, 2020 (Dkt. 23), and 21 Plaintiff replied on November 2, 2020 (Dkt. 25). 22 23 II. LEGAL STANDARD 24 A. Removal 25 A defendant may remove any civil action from state court to federal 26 court if the federal court has original jurisdiction. 28 U.S.C. § 1441(a). 2 1 Under 28 U.S.C. § 1332, the Court has jurisdiction over civil actions where 2 there is complete diversity of citizenship and the amount in controversy 3 exceeds $75,000. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 4 (9th Cir. 2001) (“Section 1332 requires complete diversity of citizenship; 5 each of the plaintiffs must be a citizen of a different state than each of the 6 defendants.”). “[T]he amount in controversy includes damages 7 (compensatory, punitive, or otherwise), the costs of complying with an 8 injunction, and attorneys’ fees awarded under fee-shifting statutes or 9 contract.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 793 (9th 10 Cir. 2018). 11 12 “The removal statute is strictly construed, and any doubt about the right 13 of removal requires resolution in favor of remand.” Moore-Thomas v. Alaska 14 Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 15 980 F.2d 564, 566 (9th Cir. 1992)). The presumption against removal 16 means that “the defendant always has the burden of establishing that 17 removal is proper.” (Id.). Moreover, the district court must remand any case 18 previously removed from a state court “if at any time before final judgment it 19 appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 20 1447(c). 21 22 III. DISCUSSION 23 When a complaint, as here, does not identify damages with specificity, a 24 defendant seeking to remove the case to federal court must demonstrate 25 that it is “more likely than not” that the amount in controversy will be 26 satisfied. Sanchez v. Monumental Life Insurance Company, 102 F.3d 398, 3 1 404 (9th Cir. 1996). For the reasons below, the Court concludes that 2 Defendant has not met this burden. 3 4 A. Economic Damages 5 1. Back-pay 6 The parties agree that if Plaintiff were to succeed on any of her FEHA 7 claims, she would be entitled to back-pay. Also, the parties do not dispute 8 that under the FEHA, back-pay is awarded from the time of the adverse 9 employment action until the date of judgment and includes past lost wages 10 and lost benefits. Plaintiff argues that such wages and lost benefits must be 11 discounted by any disability payments she received and any part-time work 12 she performed. (Dkt. 20). Defendant argues that disability payments 13 should only be deducted from the back-pay award “where the plaintiff 14 concedes that a damage award should be offset by disability payments, [yet] 15 Plaintiff has not made such a binding concession …” (Dkt. 23, at 6). 16 Defendant’s argument lacks merit. 17 18 As a threshold matter, Defendant cites no case law supporting its 19 contention. Defendant also fails to distinguish the case law cited by Plaintiff 20 stating the back-pay award must be offset by any disability payments 21 received. See Melendez v. HMS Host Family Restaurants, Inc., No. CV 11- 22 3842 ODW (CWx), 2011 WL 3760058, at *2 (C.D. Cal., Aug. 25, 2011) 23 (citing cases). Moreover, it is not clear what additional “concession that a 24 damage award should be offset by disability payments” Plaintiff needs to 25 make outside of her Motion arguing that very point. Defendant’s failure to 26 account for the disability payments Plaintiff received (which stretched from 4 1 July 24, 2019 through the date of removal) is a critical omission in 2 Defendant’s calculation of Plaintiff’s economic damages. Defendant also 3 fails to consider any part-time pay Plaintiff received during the relevant 4 periods. Rather, Defendant calculates its $41,107 estimated lost wages 5 figure without such disability payments and/or deductions for part-time pay 6 received as opposed to full-time pay. Without more information, the Court 7 cannot give weight to Defendant’s allegations of back-pay. 8 9 Furthermore, while the Court recognizes the potential to include other 10 benefits in its back-pay calculations, Defendant fails to substantiate its 11 conclusion that “additional unidentified benefits” must be included in the 12 calculation. (Dkt. 23, at 7). Specifically, Defendant argues that Plaintiff 13 would be entitled to $10,000 in health benefits as part of a back-pay award. 14 (Id.). Other than blanket unsupported statements made by a benefits 15 manager in a declaration, (Dkt. 23-8), the Court cannot ascertain the basis 16 supporting Defendant’s calculations. Such speculative statements as to the 17 amount in controversy are simply insufficient. Gaus, 980 F.2d at 567. The 18 defendant bears the burden of “actually proving the facts to support 19 jurisdiction, including the jurisdictional amount.” (Id.). As a result, “if 20 [Defendant’s] allegations of jurisdictional facts are challenged by [its] 21 adversary in any appropriate manner, [Defendant] must support them by 22 competent proof.” (Id.). Plaintiff has provided facts to support her estimated 23 back-pay award of $9,234.67 and Defendant has failed to justify its 24 arguments countering that amount with competent proof. 25 26 5 1 2. Front Pay 2 Similarly, Defendant’s calculation of Plaintiff’s estimated front pay is 3 unsupported. Notably, Defendant failed to raise any allegations of front pay 4 in its removal papers. (Dkt. 1). Moreover, Defendant fails to provide any 5 facts to support an award of front-pay in this case. See Dupre v. General 6 Motors, No. CV-10-00955 RGK (Ex), 2010 WL 3447082, *4 (C.D. Cal. Aug, 7 27, 2010) (noting that even a preponderance of the evidence standard could 8 not be met because “Defendant’s calculations are based on many 9 assumptions that leave the Court to speculate as to the value of too many 10 variables” and that the court “‘cannot base [its] jurisdiction on Defendant’s 11 speculation and conjecture.’” (quoting Lowdermilk v. U.S. Bank Nat'l Ass’n, 12 479 F.3d 994, 1002 (9th Cir. 2007)). For example, Defendant assumes 13 without justification that there will be no mitigating circumstances, and as a 14 result, Defendant calculates a full award for front-pay without competent 15 proof. Quite simply, speculative assertions are insufficient to show that 16 Plaintiff will more likely than not receive an award for front pay. 17 18 19 3. Penalties and Other Damages 20 Defendant finally argues that Plaintiff would be entitled to Labor Code 21 §558 penalties ($1,050) and Missed Rest/Meal Periods ($15,855.84) as 22 alleged in the Complaint. (Dkt. 23, at 8; see also Dkt. 3-1 ¶¶ 93, 101). 23 Nevertheless, even assuming these damages would be awarded, those 24 amounts plus Plaintiff’s estimated back-pay award of $9,234.67 only totals 25 $26,140.51, which is still far below the jurisdictional threshold. The question 26 is thus whether the sum of the remaining damages claimed by Plaintiff, i.e, 6 1 emotional distress damages, punitive damages, and attorneys’ fees, could 2 total $48,859.49, thereby satisfying the jurisdictional amount in controversy. 3 4 B. Punitive and Emotional Distress Damages 5 The Court may consider requested punitive damages in determining 6 the amount in controversy. Bell v. Preferred Life Assur. Soc. of Montgomery, 7 Ala., 320 U.S. 238, 240 (1943); see also Gibson v. Chrysler Corp., 261 F.3d 8 927, 945 (9th Cir. 2001). In providing evidence to demonstrate the amount 9 of punitive damages in controversy, the removing party may point to jury 10 verdicts in analogous cases. See, e.g., Simmons v. PCR Tech., 209 F. 11 Supp. 2d 1029, 1033 (N.D. Cal. 2002). 12 13 Here, Defendant does not specify an amount of emotional distress 14 damages that Plaintiff will likely be entitled to. Rather, Defendant cites three 15 cases for its proposition that “[a] number of plaintiffs in federal and state 16 courts in California, relying on factual and legal allegations similar to those 17 alleged here, have received judgments for emotional distress that are 18 substantially larger than $75,000.” (Dkt. 23, at 10). Defendant fails to 19 provide facts for the Court to determine if the cases are analogous to 20 Plaintiff’s claims. Accordingly, Defendant has failed to meet its burden in 21 showing that an award of emotional damages, in an amount likely to satisfy 22 the amount in controversy requirement, in this case is likely. 23 24 Likewise, with respect to punitive damages, Defendant cites a string 25 of cases for its argument that “[a] number of plaintiffs in California courts 26 alleging similar factual and legal claims have received substantial punitive 7 1 damage awards that either independently, or in combination with other relief, 2 exceed $75,000” without more. Defendant merely states throughout its 3 papers that the cases are “disability discrimination” suits where a defendant 4 failed to “provide a reasonable accommodation.” Such boilerplate 5 recitations do not satisfy Defendant’s burden of showing that Plaintiff is likely 6 to receive a punitive damage award in amount equal to or greater than 7 $48,859.49 based on the facts in this case. Indeed, “[w]hen a punitive 8 damages claim makes up the bulk of the amount in controversy, the court 9 will ‘scrutinize that claim closely’ to be certain jurisdiction exists.” Fuller- 10 Morgan v. Int'l Paper Co., No. EDCV1502086 VAP (KKx), 2015 WL 11 7853810, at *4 (C.D. Cal. Dec. 2, 2015) (citing to Jackson v. Frank, No. 12 C12-03975HRL, 2012 WL 6096905 (N.D. Cal. Dec. 7, 2012)) (citations 13 omitted). “Courts increasingly view punitive damages claims with 14 skepticism, especially if asserted for the apparent purpose of meeting the 15 jurisdictional minimum.” (Id.). Defendant has failed to overcome such 16 scrutiny, and has not met its burden in showing that the necessary award of 17 punitive damages in this case is likely. 18 19 C. Attorneys’ Fees 20 Defendant has, again, failed to support its argument regarding 21 attorneys’ fees. Attorneys’ fees that accrue after the filing of a notice of 22 removal may be included in an estimate of the amount in controversy, but a 23 removing defendant must “prove that the amount in controversy (including 24 attorneys’ fees) exceeds the jurisdictional threshold by a preponderance of 25 the evidence,” and to “make this showing with summary-judgment-type 26 evidence.” Fritsch, 899 F.3d at 795. “A district court may reject a 8 1 defendant’s attempts to include future attorneys’ fees in the amount in 2 controversy if the defendant fails to satisfy this burden of proof.” (Id.). 3 4 Here, Defendant makes no effort to explain what attorneys’ fees might 5 be sought or awarded in this case, neglecting to include so much as an 6 estimate of the hours or billing rates for the named attorneys that might 7 apply.1 The Notice of Removal argues “Plaintiff is further seeking ... 8 attorneys’ fees and costs” and Defendant in its Opposition merely argues 9 that Plaintiff would be entitled to some undefined amount exceeding 10 $75,000. (Dkt. 1, at 3). Such vague and conclusory allegations fall short of 11 meeting Defendant’s burden. See AMANDA D'AMICO, Plaintiff, v. FORD 12 MOTOR COMPANY, A Delaware Corporation; & DOES 1 through 20, 13 inclusive, Defendants., No. CV 20-2985-CJC (JCX), 2020 WL 2614610, at 14 *2 (C.D. Cal. May 21, 2020) (“[T]he Court is not persuaded that ‘more than 15 $65,000’ is a reasonable estimate of attorney fees in this case. Indeed, 16 many cases alleging violations of the Act settle early, and Defendant 17 provides no explanation for why this case is similar to ones that went to trial. 18 Nor does Defendant provide an estimate of the hours that will be incurred or 19 hourly rates that would apply in this case.”) (collecting cases); Eberle v. 20 Jaguar Land Rover N. Am., LLC, No. 218CV06650 VAP (PLAx), 2018 WL 21 4674598, at *3 (C.D. Cal. Sept. 26, 2018) (“Courts have been reluctant to 22 estimate reasonabl[e] attorneys’ fees without knowing what the attorneys in 23 the case bill, or being provided with evidence of attorneys’ fees awards in 24 similar cases and have found information far more specific than this to be 25 1 The Court is not persuaded by Defendant’s inclusion of rates for attorneys 26 not involved in this matter. 9 | | insufficient for the purposes of including attorneys’ fees in the amount in 2 | controversy.” (internal quotations and citations omitted)). 3 4 IV. CONCLUSION 5 The Court therefore GRANTS the Motion and REMANDS the action to 6 | the California Superior Court for the County of Los Angeles. 7 8 | ITIS SO ORDERED. 9 = 19) Dated: 11/12/20 Vigna nn A, Virginia A. Phillips D United States District Judge

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