1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ASHRAF RASHID, Case No.: 20cv573-L-DEB

12 Plaintiff,

ORDER DENYING MOTION TO

13 v. REMAND [ECF No. 8] 14 BMW OF NORTH AMERICA, LLC, 15 Defendant. 16 17 Pending before the Court in this lemon law action is Plaintiff’s motion to remand. 18 Defendant filed an opposition and Plaintiff replied. The Court decides the matter on the 19 papers submitted and without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons 20 stated below, Plaintiff's motion is denied. 21 Defendant removed this action from State court under 28 U.S.C. §§ 1332, 1443(1) 22 and 1441. "Federal courts are courts of limited jurisdiction. They possess only that 23 power authorized by Constitution or statute, which is not to be expanded by judicial 24 decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the 25 burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen 26 / / / 27 28 1 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Consistent with the limited 2 jurisdiction of federal courts, the removal statute is strictly construed against removal. 3 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The burden of establishing 4 removal jurisdiction is on the removing party. See Abrego Abrego v. The Dow Chem. 5 Co., 443 F.3d 676, 682-85 (9th Cir. 2006). 6 “[A]ny civil action brought in a State court of which the district courts of the 7 United States have original jurisdiction, may be removed . . ..” 28 U.S.C. § 1441(a). 8 Defendant bases removal on diversity under 28 U.S.C. §1332. Under section 1332(a), 9 original jurisdiction exists in cases of complete diversity, where each of the plaintiffs is a 10 citizen of a different state from each of the defendants and the amount in controversy 11 exceeds $75,000. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). The burden of 12 establishing removal jurisdiction, including the amount in controversy, is on the 13 defendant. Abrego Abrego, 443 F.3d at 682-85. In the notice of removal, Defendant 14 claims that the parties are diverse and the amount in controversy exceeds $75,000. (Doc. 15 no. 1.) 16 Plaintiff alleges he “purchased/leased” a 2020 BMW from Defendant. (Doc. no. 1- 17 3 (“Compl.”) at 2.) He alleges that the BMW did not conform to the warranty and 18 Defendant failed to adequately repair it after a reasonable number of opportunities. (Id. 19 at 3.) Defendant also allegedly failed to promptly replace the BMW or make restitution 20 as required by the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”), Cal. 21 Civ. Code § 1790 et seq. (Id.) Plaintiff filed a complaint alleging multiple violations of 22 the Song-Beverly Act, breach of express and implied warranties, as well as violation of 23 California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. He claims 24 his damages exceed $25,000 and expressly seeks the entire purchase price of the BMW. 25 (Id.at 3-4) He also seeks statutory penalties of two times his actual damages pursuant to 26

27 1 Unless otherwise noted, internal quotation marks, ellipses, brackets, citations, and 28 1 Cal. Civ. Code § 1794(c) and (e), actual, consequential, and incidental damages, 2 restitution, injunctive relief, and attorneys’ fees. (Id. at 3-8.) 3 Plaintiff disputes that Defendant met its burden of showing diversity of the parties. 4 Plaintiff did not allege his state of residence or citizenship in the complaint. (See doc. no. 5 8-1 (“Pl.’s Mot.”) at 12 (“Nowhere within the four corners of the complaint does Plaintiff 6 allege he lives in California.”).) Defendant relies on Plaintiff’s lease and credit 7 application to establish Plaintiff’s citizenship. Plaintiff represented that he had resided in 8 San Diego for more than a year and had been employed at Sharp-Rees Steely in San 9 Diego for the same length of time. (Doc. no. 16-1 (“Dixon Decl.”) Exs. 1, 2.) Plaintiff 10 does not contend that these representations are untrue and does not deny he is a 11 California citizen. He has not cited any evidence of his own and has not filed an 12 affidavit. His opposition rests on a hearsay objection (Pl.’s Mot. at 12), and objection to 13 judicial notice of the statements in the lease and credit application (doc. no. 21-1). The 14 objections are overruled. Plaintiff relies upon and references the lease in the complaint. 15 See United States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011). Further, 16 Plaintiff’s representations constitute admissions of a party opponent. See Fed. R. Evid. 17 801(d)(2). Defendant has provided sufficient evidence of Plaintiff’s California 18 citizenship. 19 Plaintiff alleges that Defendant is “a limited liability company organized and in 20 existence under the laws of the State of Delaware.” (Compl. at 1.) Plaintiff does not 21 object to Defendant’s evidence that the only member of the LLC is BMW (US) Holding 22 Corp., which is incorporated in Delaware with its principal place of business in New 23 Jersey. (Dixon Decl. at 2-3.) Accordingly, Defendant has established complete diversity 24 for purposes of 28 U.S.C. § 1332(a). See Carden v. Arkoma Assoc., 494 U.S. 185, 195- 25 96 (1990); Johnson v. Columbia Properties Anchorage. L.P., 437 F.3d 894, 899 (9th Cir. 26 2006) (LLC citizenship); see also 28 U.S.C. § 1332(c)(1) (corporation citizenship). 27 Plaintiff disputes that the amount in controversy exceeds $75,000. To determine if 28 the amount in controversy has been met on removal, “[t]he district court may consider 1 whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is in 2 controversy. If not, the Court may consider facts in the removal petition, and may require 3 parties to submit summary-judgment-type evidence relevant to the amount in controversy 4 at the time of removal.” Abrego Abrego, 443 F.3d at 690. Where, as here, the complaint 5 does not specify the amount of damages sought, “the removing defendant must prove by 6 a preponderance of the evidence that the amount in controversy requirement has been 7 met." Id. at 683. Defendant must show “that it is more likely than not that the amount in 8 controversy" satisfies the jurisdictional amount requirement. Sanchez v. Monumental 9 Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996); Lowdermilk v. U.S. Bank Nat'l Assoc., 10 479 F.3d 994, 998 & n. 4 (9th Cir. 2007); Abrego Abrego, 443 F.3d at 690. “The amount 11 in controversy is simply an estimate of the total amount in dispute, not a prospective 12 assessment of defendant’s liability.” Lewis v. Verizon Comm’ctns, Inc., 627 F.3d 395, 13 400 (9th Cir. 2010). In addition to damages, included in the amount in controversy are 14 civil penalties, see Romo v. FFG Ins. Co., 397 F. Supp. 2d 1237, 1240-41 (C.D. Cal. 15 2005); Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004, 1009 (N.D. Cal. 2002), 16 and attorney’s fees and costs, see Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 17 (9th Cir. 1998). 18 In the complaint, Plaintiff expressly seeks the “entire purchase price” of the BMW 19 in addition to civil damages. In his Initial Disclosures, Plaintiff calculated his damages 20 “from the purchase contract are as follows: $65,214.37 plus additional fees for the total 21 price of repurchase of the subject vehicle, and up to $130,428.74 in civil penalty 22 damages.” (Dixon Decl. Ex. 4.) Plaintiff admits he incurred $6,000 in attorney’s fees 23 / / / 24 25 26 27 28 1 || prior to removal. (Doc. no. 8-2 (Lopez Decl.) at 2.) Based on Plaintiff’s representations, 2 Defendant has met its burden to establish that the amount in controversy exceeds 3 $75,000. 4 Plaintiff’s motion to remand is denied. 5 IT IS SO ORDERED. 6 7 ||Dated: September 22, 2020 : 1 cee ap 9 H . James Lorenz, 10 United States District Judge

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28