1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WILLIAM ECHEMENDIA, Case No. 2:20-cv-09243-MCS-JEM 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12

MOTION TO REMAND [11]

13 v.

14 SUBARU OF AMERICA, INC., and 15 DOES 1 through 20, inclusive,

16 Defendants. 17 18 Before the Court is a Motion to Remand (“Motion”) filed by Plaintiff William 19 Echemendia. Mot., ECF No. 11. Defendant Subaru of America, Inc. filed an Opposition 20 and Plaintiff filed a Reply. Opp., ECF No. 12; Reply, ECF No. 13. The Court deems 21 the matter appropriate for decision without oral argument and VACATES the hearing. 22 Fed. R. Civ. P. 78(b); Local Rule 7-15. The Motion is GRANTED. 23 I. BACKGROUND 24 Plaintiff filed a complaint in Los Angeles County Superior Court asserting two 25 claims against Subaru under the Song-Beverly Warranty Act (“SBA”): (1) breach of 26 implied warranty of merchantability, and (2) breach of express warranty. Compl. ¶¶ 14- 27 34, ECF No. 1-2. Plaintiff’s claims concern a 2016 Subaru WRX (the “Vehicle”) that 28 exhibited defects after he bought it, including “abnormal noises coming from the 1 engine, check engine light, and transmission issues.” Id. ¶¶ 4-10. Plaintiff presented the 2 Vehicle for repair “on at least three separate occasions” and notified Subaru of the 3 defects, but Subaru failed to fix them. Id. ¶¶ 9-12. Before removing this matter, Subaru 4 served Plaintiff with special interrogatories and requests for production. See Not. of 5 Removal, ECF No. 1. Plaintiff’s responses revealed that the parties were diverse and 6 that Plaintiff’s purchase price was $36,141.68. Id.; see also Sales Contract, Decl. of 7 Kristan L. Ruggerello (“Ruggerello Decl.) Ex. D, ECF No. 12-1. The Vehicle’s value, 8 apart from the $11,139.06 in “Finance Charges” that have not accrued, appears to 9 approximate $25,000. See Sales Contract 1-2. Plaintiff alleges, without explanation, that 10 “[t]he amount in controversy exceeds $25,000, exclusive of interest and costs.” Compl. 11 ¶ 13. Under PRAYER FOR RELIEF, the Complaint lists: 12 • Replacement or restitution 13 • Incidental and consequential damages 14 • Civil penalties under the SBA not to exceed twice the amount of actual damages 15 • Attorneys’ fees and costs 16 • The Vehicle’s value as warranted minus its value as accepted 17 • Remedies under Chapters 6 and 7 of Division 2 of the Commercial Code 18 II. LEGAL STANDARD 19 To invoke diversity jurisdiction, a party must demonstrate there is complete 20 diversity of citizenship between the parties and that the amount in controversy exceeds 21 the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332. “The 22 burden of establishing federal jurisdiction is on the party invoking federal 23 jurisdiction.” United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) “[W]here it is 24 unclear or ambiguous from the face of a state-court complaint whether the requisite 25 amount in controversy is pled ... [t]he removing defendant bears the burden of 26 establishing, by a preponderance of the evidence, that the amount in controversy 27 exceeds” $75,000. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 28 2007) (citation omitted). 1 III. DISCUSSION 2 Plaintiff brings two breach of warranty claims under the SBA; alleges the amount 3 in controversy exceeds $25,000; and seeks replacement or restitution, incidental 4 damages, consequential damages, a civil penalty up to double Plaintiff’s actual 5 damages, fees, the Vehicle’s value as warranted minus its value as accepted, and 6 remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code. Because 7 the amount in controversy is not clear from the face of the Complaint, Subaru must 8 show it exceeds $75,000 by a preponderance. Guglielmino, 506 F.3d at 699. Subaru has 9 failed to do so. Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1034 10 (9th Cir. 2008) (“A defendant seeking removal has the burden to establish that removal 11 is proper and any doubt is resolved against removability.”) (citation omitted). 12 A. Actual Damages 13 Actual damages under the SBA are “equal to the actual price paid or payable by 14 the buyer,” minus the reduction in value “directly attributable to use by the buyer.” Cal. 15 Civ. Code § 1793.2(d)(2)(B)-(C). The reduction is based on miles driven before the first 16 attempted repair. Id. Subaru proffers a copy of the Sales Contract which reflects a 17 $36,141.68 purchase price and an approximate $25,000 Vehicle value. See Sales 18 Contract. Subaru inexplicably cites the $36,141.68 purchase price as Plaintiff’s actual 19 damages without accounting for finance charges, evidence concerning when repairs 20 were made, or anything else that could allow the Court to reliably estimate actual 21 damages. Opp. 6. Subaru instead focuses on downplaying the statutory offset’s impact 22 on actual damages, arguing that “Plaintiff’s use of the vehicle… would be for the judge 23 or jury to decide after hearing evidence of repairs.” Opp. 5. This argument ignores that 24 it is Subaru’s burden, not Plaintiff’s, to offer such evidence. Marks, 530 F.3d at 810. 25 Without maintenance records or well-pled allegations concerning Plaintiff’s use or 26 attempted repairs, the Court is left to guess what actual damages might be. 27 Plaintiff’s actual damages under the SBA are therefore speculative, at best, given 28 the record before the Court. 1 B. Civil Penalties 2 The Complaint alleges Plaintiff is entitled to a civil penalty up to twice the 3 amount of his actual damages under California Civil Code section 1794, which only 4 applies if a defendant’s violations are willful. Compl. PRAYER FOR RELIEF clause. 5 Plaintiff argues that civil penalties should not be “assumed” in determining the amount 6 in controversy because Subaru has presented only speculation to support Plaintiff’s 7 entitlement to civil penalties. Mot. 6-8; Reply 7-8. The Court agrees. 8 Subaru cites no allegations suggesting the type of willfulness required to justify 9 civil penalties, let alone has it demonstrated how much those penalties might be. 10 Zawaideh v. BMW of North America, LLC, 2018 WL 1805103, at *2 (S.D. Cal. Apr. 11 17, 2018) (“Rather than simply assume that because a civil penalty is available, one will 12 be awarded, the defendant must make some effort to justify the assumption by, for 13 example, pointing to allegations in the Complaint suggesting award of a civil penalty 14 would be appropriate, and providing evidence—such as verdicts or judgments from 15 similar cases—regarding the likely amount of the penalty.”) Plaintiff’s sole allegation 16 remotely inferring willfulness is that Subaru misrepresented it would cure the Vehicle’s 17 defects. Compl. ¶¶ 9-12. Such a vague contention, without more, does not satisfy 18 Subaru’s burden. Castillo v. FCA USA, LLC, 2019 WL 6607006, at *2 (S.D. Cal. Dec. 19 5, 2019) (remanding where defendant provided no argument or evidence for including 20 a civil penalty in the amount in controversy); Sanchez v. Ford Motor Co., 2018 WL 21 6787354, at *2 (C.D. Cal. Dec. 4, 2018) (remanding where “Defendant has not offered 22 any evidence to support” civil penalties under the SBA); Lawrence v. FCA US LLC, 23 2016 WL 5921059, at *4 (C.D. Cal. Oct. 11, 2016) (SBA’s civil penalty not considered 24 in amount in controversy due to no “analogous verdicts or estimates about the amount”). 25 The Court rejects Subaru’s unfounded request that the Court accept its 26 “assumption” of maximum civil penalties. Opp. 5 (citing Park v. Jaguar Land Rover N. 27 Am., LLC, 2020 WL 3567275, at *6 (S.D. Cal. July 1, 2020) (“Defendant's assumption 28 that the amount in controversy includes the maximum amount of civil penalties is 1 reasonable” because “this assumption is founded on the allegations of the Complaint.”)) 2 Unlike the defendant in Park, Subaru cites no allegation or evidence to support a civil 3 penalty twice the amount of actual damages. Compare Park, 2020 WL 3567275, at *6 4 (higher civil penalties assumed because vehicle cost $68,268.16 and complaint 5 expressly sought maximum civil penalties) with Compl. (seeking civil penalties “not to 6 exceed two times the amount of Plaintiff’s actual damages” concerning vehicle with 7 approximate $25,000 value) (emphasis added). Subaru’s lack of evidence supporting 8 civil penalties is compounded by the uncertainty of Plaintiff’s actual damages. Edwards 9 v. Ford Motor Co., 2016 WL 6583585, at *4 (C.D. Cal. Nov. 4, 2016) (“However, as 10 determined above, Defendant failed to establish the amount of actual damages at issue, 11 which is necessary to determine the total civil penalty. Accordingly, the Court cannot 12 determine the amount of any potential civil penalty either.”) 13 The Court therefore cannot reliably determine the amount of civil penalties to 14 which Plaintiff may be entitled, if any. The Court notes that even if Subaru proffered 15 evidence supporting the maximum civil penalty and actual damages equaling the 16 Vehicle’s approximately $25,000 full “cash value,” which it has not, Plaintiff’s 17 damages would be roughly $75,000 before a statutory offset and other damages. 18 C. Fees 19 “Section 1332(a)'s amount-in-controversy requirement excludes only ‘interest 20 and costs’ and therefore includes attorneys’ fees.” Guglielmino, 506 F.3d at 700; 21 Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 2018) 22 (“[A] court must include future attorneys' fees recoverable by statute or contract when 23 assessing whether the amount-in-controversy requirement is met”). Subaru presents no 24 fee evidence, nor does it argue that fees should be included in the amount in controversy. 25 Opp. 6. Without argument or evidence establishing fees, the Court has no basis to 26 include them in the amount in controversy. Eberle v. Jaguar Land Rover N. Am., LLC, 27 2018 WL 4674598, at *3 (C.D. Cal. Sept. 26, 2018) (“Courts have been reluctant to 28 estimate reasonably attorneys’ fees without knowing what the attorneys in the case bill, 1 or being provided with ‘evidence of attorneys’ fees awards in similar cases,’ and have 2 found information far more specific than this to be insufficient for the purposes of 3 including attorneys’ fees in the amount in controversy.”) (citations omitted). 4

IV. CONCLUSION

5 Because actual damages and fees are unknown, potential civil penalties are 6 speculative, and Subaru identifies no additional sums to which Plaintiff may be entitled, 7 Subaru has failed to show it is “more likely than not” that the amount in controversy 8 exceeds $75,0000. Plaintiff’s Motion to Remand is therefore GRANTED. The Court 9 REMANDS this action to the Superior Court of California for the County of Los 10 Angeles. All dates and deadlines are VACATED. The Clerk of Court shall close the 11 case. 12

13

IT IS SO ORDERED.

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15 Dated: December 11, 2020 ________________________________ 16 MARK C. SCARSI 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28