1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIA CRYSTAL ALCAZAR, Case No. 23-cv-01951-JD

8 Plaintiff,

ORDER RE REMAND

v. 9

10 NISSAN NORTH AMERICA, INC., Defendant. 11

12 13 Plaintiff Maria Crystal Alcazar sued Nissan North America in the Superior Court of 14 Alameda County for state law claims arising from the purchase of an allegedly defective vehicle. 15 Dkt. No. 1-2. Nissan removed the case to federal court based on diversity jurisdiction. Dkt. No. 16 1; 28 U.S.C. § 1441(b). Alcazar has asked for a remand back to state court. Dkt. No. 15. The 17 parties’ familiarity with the record is assumed, and a remand is denied. 18 DISCUSSION 19 Alcazar does not dispute that the requirements for diversity jurisdiction under 28 U.S.C. 20 § 1332 are satisfied. Dkt. No. 15 at 1. The remand motion is based solely on the timeliness of the 21 notice of removal, as Alcazar contends that Nissan waited too long to remove the case under 28 22 U.S.C. § 1446(b). Id. Alcazar filed her state court complaint on March 15, 2023, and personally 23 served Nissan on March 16, 2023. Dkt. No. 1-2; Dkt. No. 15-1, Ex. 2. Nissan removed the action 24 to federal court thirty-three days after it was served, on April 21, 2023. Dkt. No. 1. 25 The rules governing the timing of removal are straightforward. See Fowler v. Penske 26 Logistics, LLC, No. 3:17-cv-05397-JD, 2018 WL 2079987, at *1 (N.D. Cal. May 4, 2018); see 27 also Louis v. Healthsource Global Staffing, Inc., No. 22-cv-02436-JD, 2022 WL 4866543, at *3 1 notice of removal be filed within thirty days of receipt from the plaintiff of an initial pleading or 2 other document from which it is ascertainable that the case is removable.” Roth v. CHA 3 Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1124 (9th Cir. 2013). The two thirty-day periods 4 “operate as limitations on the right to removal rather than as authorizations to remove,” and only 5 apply to “a defendant who is put on notice of removability by a plaintiff.” Id. at 1123, 1125. 6 The sole question here is whether Alcazar’s complaint gave Nissan sufficient notice of 7 removability to trigger the first thirty-day period. It did not. “[N]otice of removability under 8 § 1446(b) is determined through examination of the four corners of the applicable pleadings, not 9 through subjective knowledge or a duty to make further inquiry.” Harris v. Bankers Life & Cas. 10 Co., 425 F.3d 689, 694 (9th Cir. 2005). Under the Ninth Circuit's “bright-line approach,” the 11 thirty-day clocks start when removability is “revealed affirmatively in the initial pleading” or 12 made “unequivocally clear and certain” by another paper. Id. at 695, 697; Dietrich v. Boeing Co., 13 14 F.4th 1089, 1095 (9th Cir. 2021). Consequently, “even if a defendant could have discovered 14 grounds for removability through investigation, it does not lose the right to remove because it did 15 not conduct such an investigation and then file a notice of removal within thirty days of receiving 16 the indeterminate document.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 791 (9th Cir. 2018) 17 (quoting Roth, 720 F.3d at 1125); see also Fowler, 2018 WL 2079987, at *1 (thirty-day removal 18 periods not triggered when “defendant would have had to review its records in order to calculate potential damages” because “[c]ircuit precedent makes clear that such reviews are not required by 19 the removal statute”) (internal quotations omitted). 20 Alcazar’s complaint did not “affirmatively” reveal that the $75,000 minimum amount-in- 21 controversy requirement for diversity jurisdiction was met. Harris, 425 F.3d at 695. The 22 complaint seeks restitution of the amounts paid by Alcazar and the amounts owed, as well as civil 23 penalties and attorneys’ fees under the California Song-Beverly Consumer Warranty Act. Dkt. 24 No. 1-2. Alcazar checked a box on the civil cover sheet to indicate that the “[a]mount demanded 25 exceeds $25,000.” Id. at ECF p. 34. But the problem for Alcazar is that the complaint does not 26 allege the sales price of the vehicle or otherwise specify the amount of damages she seeks. See 27 1 that the amount in controversy “exceeds” $75,000, even including the penalties that Alcazar might 2 || be entitled to under the Song-Beverly Act. See 28 U.S.C. § 1332(a). Alcazar argues that Nissan’s 3 “sophistication and knowledge of the motor vehicle industry” should have put it on notice that the 4 amount-in-controversy requirement was met, see Dkt. No. 15 at 8, but removability is determined 5 from the pleadings and not the defendant’s subjective knowledge, see Harris, 425 F.3d at 694. 6 The record shows that the thirty-day removal clock properly started on April 13, 2023, 7 || when Nissan obtained a copy of Alcazar’s vehicle sales contract which revealed that she paid g || approximately $40,487.28 for her vehicle. Dkt. No. 1-1 {| 11-13. Because Alcazar might be g || entitled to a civil penalty equaling twice the amount of her actual damages under the Song-Beverly 10 || Act if she proves that Nissan acted willfully, she could theoretically recover an additional 11 $80,974.56 plus attorneys’ fees. Cal. Civ. Code § 1794. Nissan promptly filed a notice of = 12 || temoval eight days after it obtained the sales contract. Dkt. No. 1. Consequently, removal was E 13 timely under Section 1446(b)(3). The motion for remand is denied. 14 IT IS SO ORDERED. 3 15 || Dated: July 24, 2023 2 16

JAMES PONATO

Z 18 United Jtates District Judge 19 20 21 22 23 24 25 26 27 28