1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 21-05534-RSWL(PLAx) 12 HERIBERTO SAUCEDO SANCHEZ,

ORDER REMANDING ACTION TO

13 Plaintiff, CALIFORNIA SUPERIOR COURT, 14 v. COUNTY OF LOS ANGELES 15 FCA US LLC, a Delaware 16 Limited Liability Company; and DOES 1 through 10, 17 inclusive, 18 Defendants. 19 On October 22, 2021, the Court ordered Defendant 20 FCA US LLC (“Defendant”) to show cause [9] why this 21 Action should not be remanded to state court for a lack 22 of subject matter jurisdiction. Specifically, the Court 23 expressed concern over the Defendant’s ability to 24 establish that the amount in controversy exceeds 25 $75,000. Defendant filed its response [10] on November 26 8, 2021. 27 In its Notice of Removal, Defendant avers that the 28 1 amount in controversy exceeds $75,000 based on the

2 purchase price of the subject vehicle and civil

3 penalties sought by Plaintiff. See Notice of Removal 4 ¶¶ 27-29, ECF No. 1. Defendant argues that the civil 5 penalty should be part of the present calculus because 6 Plaintiff’s Complaint states he is entitled to civil 7 penalties. See Def.’s Resp. to OSC (“Resp.”) 2:21-23, 8 ECF No. 10. However, where a court questions a 9 defendant’s assertion of diversity jurisdiction, the 10 defendant must provide evidence establishing that the 11 amount in controversy is met by a preponderance of the 12 evidence. See Dart Cherokee Basin Operating Co., LLC v. 13 Owens, 574 U.S. 81, 89 (2014). Here, Defendant points 14 to no evidence nor allegations in the Complaint 15 establishing willful conduct that would more likely than 16 not entitle Plaintiff to an award of civil penalties. 17 “The amount in controversy includes all relief 18 claimed at the time of removal to which the plaintiff 19 would be entitled if she prevails.” Chavez v. JPMorgan 20 Chase & Co., 888 F.3d 413, 418 (9th Cir. 2018). Because 21 the Song-Beverly Act requires an additional showing of 22 willfulness to justify civil penalties, courts in the 23 Ninth Circuit have frequently required defendants to 24 show by a preponderance of the evidence that a civil 25 penalty will be awarded. See, e.g., D’Amico v. Ford 26 Motor Co., No. CV 20-2985-CJC (JCx), 2020 WL 2614610, at 27 *3 (C.D. Cal. May 21, 2020) (“Courts do not simply 28 assume that a civil penalty will be awarded, and the 1 removal statute is strictly construed against removal

2 jurisdiction.”); Barrett v. FCA US LLC, No. SA CV 21-

3 00243-DOC-DFMx, 2021 WL 1263838, at *4 (C.D. Cal. Apr. 4 5, 2021) (declining to include defendant’s estimate of 5 speculative civil penalties to meet the amount in 6 controversy requirement); Ronquillo v. BMW of North Am., 7 LLC, No. 3:20-cv-1413-W-WVG, 2020 WL 6741317, at *4 8 (S.D. Cal. Nov. 17, 2020) (excluding the civil penalty 9 because defendant failed to provide analogous cases or 10 identify allegations in the complaint indicating that 11 the penalty will more likely than not be awarded). 12 Even if Plaintiff were to prevail on his underlying 13 claim, Defendant points to no evidence or factually 14 analogous cases suggesting that a civil penalty will 15 more likely than not be awarded here.1 It is not enough 16 to assume that civil penalties will be awarded simply 17 because Plaintiff states he is entitled to them in his 18 Complaint. See Conrad Associates v. Hartford Acc. & 19 Indem. Co., 994 F. Supp. 1196, 1201 (N.D. Cal. 1998). 20 For that reason, Defendant has not carried its burden to 21 establish that the civil penalty should be included in

22 1 Defendant cites Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644 (9th Cir. 2016), to support its position that civil 23 penalties should be included in the amount in controversy. See 24 Resp. 3:23-4:23. However, Gonzales also relied on the costs of complying with injunctive relief if the plaintiff’s claims were 25 successful, and the defendant had submitted evidence of those costs and the amount of attorneys’ fees likely to be incurred 26 based on the facts of the case. 840 F.3d at 648-49. Given that Plaintiff is not seeking injunctive relief and Defendant makes no 27 effort to compare the facts of Gonzales to those here, Gonzales 28 does not help Defendant’s case. 1 the amount in controversy determination.

2 Defendant similarly fails to provide evidence

3 supporting any amount of attorneys’ fees that will more 4 likely than not be awarded in this case. Defendant 5 asserts that its “list of values of attorneys’ fees other 6 sought by Plaintiffs’ attorneys in Song-Beverly 7 cases, is sufficient enough to demonstrate the relief 8 the court may grant to this particular plaintiff if he 9 is victorious in this matter.” Resp. 5:27-6:4. The 10 Court disagrees. Courts in this Circuit have rejected 11 similar arguments where the defendant fails to explain 12 “why this case is similar to ones that went to trial” or 13 “provide an estimate of the hours that will be incurred 14 or hourly rates that would apply.” D’Amico, 2020 WL 15 2614610, at *4; see also Conrad, 994 F. Supp. at 1200 16 (considering defendant’s estimation of attorneys’ fees 17 too speculative where it failed to vary billing rates or 18 estimate the amount of time each task would take). 19 Defendant fails to estimate the cost of major tasks 20 necessary to this case and offers no comparison of the 21 facts of this case to those it relies on for support. 22 Consequently, its estimation of attorneys’ fees is too 23 speculative to be included in the amount in controversy 24 determination. 25 26 /// 27 /// 28 /// 1 Based on the foregoing, Defendant has failed to

2 carry its burden of establishing removal jurisdiction.

3 The Court therefore REMANDS the Action to the Superior 4 Court of California, County of Los Angeles. 5 IT IS SO ORDERED. 6 7 DATED: November 12, 2021 ___/s_/ _R_o_n_a_ld_ _S_.W__. _L_e_w___________

HONORABLE RONALD S.W. LEW

8 Senior U.S. District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28