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UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA 3 4 5 Abelardo Martinez, Jr., 6 2:20-cv-09327-VAP-AGRx Plaintiff, 7 v. Order GRANTING Motion to 8 Remand (Dkt. 11) CotN Wash, Inc., 9 Defendant. 10 11 12 Before the Court is Plaintiff Abelardo Martinez, Jr.’s (“Plaintiff”) Motion to 13 Remand (“Motion”). (Dkt. 11). After considering all the papers filed in 14 support of, and in opposition to, the Motion, the Court deems this matter 15 appropriate for resolution without a hearing pursuant to Local Rule 7-15. 16 The Court GRANTS the Motion. 17 18 I. BACKGROUND 19 Plaintiff is permanently blind and uses screen readers in order to access 20 the internet and read website content. (Dkt. 1-4, (“Compl.”), ¶ 7). Plaintiff 21 claims that “despite several attempts to use and navigate [Defendant’s] 22 Website, Plaintiff was denied the full use and enjoyment of the facilities and 23 services of the Website as a result of accessibility barriers ….” (Id.) 24 25 On August 31, 2020, Plaintiff filed suit against Defendant Cot’n Wash, 26 Inc. d/b/a Dropps (“Dropps” or “Defendant”) in the California Superior Court 1 1 for the County of Los Angeles. (Dkt. 1-4). Plaintiff asserts one claim for 2 violation of California’s Unruh Civil Rights Act due to the alleged 3 accessibility barriers on Defendant’s Website. (Id.) Defendant removed the 4 case to this Court on October 8, 2020 based on diversity jurisdiction, 5 contending that the amount in controversy exceeds $75,000. (Dkt. 1). 6 Plaintiff timely seeks to remand the case arguing that Plaintiff’s express 7 limitation of the amount in controversy in the Complaint thwarts a finding of 8 diversity jurisdiction. (Dkt. 11). Defendant filed an Opposition on November 9 2, 2020 (Dkt. 13), and Plaintiff replied on November 9, 2020 (Dkt. 15). 10 11 II. LEGAL STANDARD 12 Under 28 U.S.C. § 1441(a), a civil action may be removed to the district 13 court where the action is pending if the district court has original jurisdiction 14 over the action. A district court has diversity jurisdiction over any civil action 15 between citizens of different states if the amount in controversy exceeds 16 $75,000, excluding interest and costs. 28 U.S.C. § 1332. “[T]he amount in 17 controversy includes damages (compensatory, punitive, or otherwise), the 18 costs of complying with an injunction, and attorneys’ fees awarded under 19 fee-shifting statutes or contract.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 20 899 F.3d 785, 793 (9th Cir. 2018). 21 22 “The burden of establishing federal jurisdiction is on the party seeking 23 removal, and the removal statute is strictly construed against removal 24 jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265 (9th 25 Cir. 1999), superseded by statute on other grounds as stated in Abrego 26 Abrego v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006). There is 2 1 a strong presumption against removal jurisdiction, and federal jurisdiction 2 “must be rejected if there is any doubt as to the right of removal in the first 3 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citation 4 omitted). A “defendant always has the burden of establishing that removal 5 is proper.” (Id.) “If at any time before final judgment it appears that the 6 district court lacks subject matter jurisdiction, the case shall be remanded.” 7 28 U.S.C. § 1447(c). 8 9 “[F]ederal courts permit individual plaintiffs, who are the masters of their 10 complaints, to avoid removal to federal court, and to obtain a remand to 11 state court, by stipulating to amounts at issue that fall below the federal 12 jurisdictional requirement.” Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 13 595 (2013). “Some courts have required that these affidavits or stipulations 14 be executed prior to the notice of removal as a sign of their bona fides[.]” 15 Patel v. Nike Retail Servs., Inc., 58 F. Supp. 3d 1032, 1038 (N.D. Cal. 2014) 16 (citation omitted). “Notwithstanding this, district courts within this circuit have 17 remanded actions on the condition that a plaintiff stipulate to seeking less 18 than the jurisdictional minimum or submitting an affidavit binding him or her 19 not to accept any amount meeting the jurisdictional minimum.” (Id. at 1038– 20 39) (collecting cases). 21 22 III. DISCUSSION 23 The sole issue is whether Defendant has met its burden to show that the 24 amount in controversy exceeds $75,000. Plaintiff asserts that Defendant 25 has failed to meet its burden of proving by a preponderance of evidence that 26 the amount in controversy meets this jurisdictional threshold. Defendant 3 1 argues that the combination of statutory damages, injunctive relief, and 2 attorneys’ fees sought by Plaintiff will exceed the jurisdictional threshold. 3 The Court agrees with Plaintiff. 4 5 A. Statutory Damages 6 Cal. Civil Code § 52(a) permits an award of statutory damages “in no 7 case less than $4,000” for violations of the Unruh Act. Here, the Complaint 8 seeks $4,000 in statutory damages and no actual damages. Defendant fails 9 to provide sufficient evidence countering Plaintiff’s estimate of statutory 10 damages. Thus, the Court finds that the statutory damages are likely to be 11 no more than $4,000. 12 13 B. Injunctive Relief 14 When the plaintiff seeks injunctive relief, the cost of complying with the 15 injunction is included in the amount in controversy. See Chavez v. 16 JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018). “Under the 17 ‘either viewpoint’ rule, the test for determining the amount in controversy is 18 the pecuniary result to either party which the judgment would directly 19 produce.” In re Ford Motor Co./Citibank (S.D.), N.A., 264 F.3d 952, 958 (9th 20 Cir. 2001). “In other words, where the value of plaintiff's recovery ... is 21 below the jurisdictional amount, but the potential cost to the defendant of 22 complying with the injunction exceeds that amount, it is the latter that 23 represents the amount in controversy for jurisdictional purposes.” (Id.) 24 25 Plaintiff argues that his allegation that “the injunctive relief [would] 26 require that Defendant expend no more than $20,000” is a binding 4 1 stipulation that must be honored by the Court. (Dkt. 11, at 3-6). Plaintiff is 2 incorrect. Although a plaintiff reserves the right to limit his monetary 3 damages in the complaint, Courts in this district have ruled that a plaintiff 4 cannot expressly limit the cost of injunctive relief, and this Court agrees. 5 See Martinez v. Johnson & Johnson Consumer Inc., No. 2:20-CV-04316- 6 RGK (PDx), 2020 WL 3820392, at *2 (C.D. Cal. July 8, 2020) (citing 7 Martinez v. Epic Games, Inc., No. CV 19-10878-CJC (PJWx), 2020 WL 8 1164951, at *3 (C.D. Cal. Mar. 10, 2020)) (explaining that the court was 9 “highly skeptical that Plaintiff’s disclaimer would have any effect at all. 10 Defendant would have no choice but to comply with the injunction ordering it 11 to change its website, regardless of whether the cost of doing so would 12 exceed Plaintiff's self-imposed $20,000 ceiling.”). 13 14 Nevertheless, the Defendant must carry its burden to show by a 15 preponderance of evidence that the injunctive relief will cost enough to carry 16 the amount in controversy over the jurisdictional threshold. Both parties 17 have submitted evidence of the estimated cost of injunctive relief in this 18 case. Defendant argues that in response to the instant lawsuit, “Dropps 19 hired AudioEye, Inc. at a price of $17,000 per year to ensure the Website’s 20 compliance and to perform continuous monitoring to ensure future 21 compliance with all accessibility guidelines.” (Dkt. 13, at 10). Thus, 22 according to Defendant, “the $17,000 annual cost to Dropps of complying 23 with the injunctive relief Plaintiff seeks, assuming no price increase, would 24 cause Dropps to exceed the $75,000 threshold in about four-and-a-half 25 years.” (Id., at 11). Defendant’s argument lacks merit. 26 5 1 As Plaintiff points out, Defendant’s estimates do not consider the 2 specific access barriers that would need to be changed on Defendant’s 3 website to make it accessible to the blind. Indeed, the Agreement that 4 Defendant entered into with AudioEye, Inc. fails to mention the specific 5 access barriers alleged in the Complaint. Rather, the Agreement provides 6 estimates for remediating “certain common issues of accessibility” among 7 other general services. Notably, the Agreement appears over-inclusive of 8 what is needed to remediate the issues that Plaintiff complains of. Given 9 the breadth of the Agreement, the actual cost of making the website more 10 accessible to visually impaired individuals may only account for a small 11 portion of the total cost. Plaintiff, in contrast, produced a declaration from a 12 website remediation vendor estimating the total cost of the initial and 13 ongoing maintenance for the exact changes sought by Plaintiff at $14,300. 14 (Declaration of Vashaun Jones, Dkts. 11-2, 11-3). Without more substantive 15 evidence that the cost of the injunctive relief sought in this case will exceed 16 $14,300, the Court credits Plaintiff’s Complaint, as supported by the Motion 17 to Remand and the Jones Declaration, that the injunctive relief will cost no 18 more than $20,000. See Martinez, 2020 WL 3820392, at *3. 19 20 C. Attorneys’ Fees 21 The court must include future attorneys’ fees recoverable by statute 22 when assessing whether the amount in controversy requirement is met. 23 Fritsch, 899 F.3d at 794. 24 25 Here, the Complaint expressly limits Plaintiff's recovery such that the 26 combined total of the injunctive relief, statutory damages, and attorneys’ 6 1 fees does not exceed $74,999. Thus, if Plaintiff is seeking $4,000 in 2 damages and $20,000 in injunctive relief, it follows that the Complaint 3 attempts to expressly limit Plaintiff's recovery of attorneys’ fees to no more 4 than $50,999. 5 6 Defendant contends that Plaintiff cannot limit the amount he recovers in 7 attorneys’ fees and argues that, even under the most conservative 8 estimates, Plaintiff's attorneys’ fees alone will exceed $75,000. In support of 9 this argument, the Defendant asserts that Plaintiff's counsel requested fees 10 exceeding $75,000 in two cases involving similar claims as those here. 11 (Dkt. 13, at 17-18). Plaintiff, on the other hand, contends that Defendant’s 12 calculation is excessive and too speculative to carry its burden of proof, and 13 furthermore, that Plaintiff’s express limitation on the amount of recovery 14 operates as a binding stipulation preventing him from later seeking more in 15 attorneys’ fees. The Court agrees with Plaintiff. 16 17 It is proper for the Plaintiff to expressly limit his recovery of attorneys’ 18 fees as his express limitation operates as a stipulation preventing him from 19 later seeking more in fees. See Martinez, 2020 WL 3820392, at *3 (citing 20 Martinez, 2020 WL 1164951, at *2–3; see also Rios v. Wirepath Home 21 Systems, LLC, No. 8:19-cv-01921-JLS (KESx), 2019 WL 6715044, at *2 22 (C.D. Cal. Dec. 10, 2019) (holding “taken together, Plaintiff’s Complaint and 23 his reaffirmation of the recovery cap in his papers approximate a binding 24 stipulation, especially because Plaintiff’s assertions would ‘judicially estop[] 25 [him] from arguing for more than $75,000 in damages.’”)). 26 7 1 Defendant has not cited to any authority directly holding that it is 2 | improper for Plaintiff to stipulate to a limitation on attorneys’ fees. In the 3 | absence of such authority, the Court is inclined to agree with the two 4 | Martinez cases and Rios in finding that Plaintiff's express limitation in the 5 | Complaint (and his reaffirmation of that limitation in the Motion to Remand) 6 | constitutes a binding stipulation that Plaintiff will not seek additional 7 | attorneys’ fees beyond the amount stipulated. See Martinez, 2020 WL 8 | 3820392, at *4. 9 10 In sum, Defendant has not shown by a preponderance of the evidence 11 | that the combined cost of injunctive relief, attorneys’ fees, and statutory 12 | damages will exceed $75,000. Accordingly, the Court finds that it lacks 13 | subject matter jurisdiction over this case and remands this action to state 14 | court for all future proceedings. 15 16 IV. CONCLUSION 17 The Court therefore GRANTS Plaintiff's Motion and REMANDS this 18 | case to the California Superior Court for the County of Los Angeles. 19 20 | ITIS SO ORDERED. 21 Dated: 11/18/20 Vip 4 A, Phil □□□ 23 Virginia A. Phillips United States District Judge 25 26