1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL B. KAPLAN and KIM C. Case No.: 21-CV-857 TWR (AGS)

KAPLAN,

12

ORDER (1) GRANTING

Plaintiffs, 13 PLAINTIFFS’ MOTION TO v. REMAND; AND (2) REMANDING 14

ACTION TO THE SUPERIOR

BMW OF NORTH AMERICA, LLC, a 15 COURT OF CALIFORNIA, Delaware Limited Liability Company; and

COUNTY OF SAN DIEGO

16 DOES 1 through 30, inclusive,

17 Defendants. (ECF No. 6) 18

19 Presently before the Court is Plaintiffs Paul B. and Kim C. Kaplan’s Motion to 20 Remand Complaint (“Mot.,” ECF No. 6), as well as the Response in Opposition to the 21 Motion (“Opp’n,” ECF No. 10) filed by Defendant BMW of North America, LLC 22 (“BMW”) and Plaintiffs’ Reply in Support of their Motion (“Reply,” ECF No. 14).1 The 23 Court heard oral argument on September 22, 2021. (See ECF No. 17.) Having carefully 24 considered the Parties’ arguments, evidence, and the relevant law, the Court GRANTS 25 1 Plaintiffs’ Reply was filed a week late, most likely under the briefing deadlines set by the Southern 26 District of California’s Civil Local Rules, rather than the superseding deadlines set by this Court’s Standing Order for Civil Cases. The Court finds the delay was due to excusable neglect because there is 27 no danger of prejudice or indication of bad faith in the minor delay. See Pincay v. Andrews, 389 F.3d 853, 28 855 (9th Cir. 2004) (listing the excusable neglect factors). Although the Court properly may consider 1 Plaintiffs’ Motion to Remand and REMANDS this action to the Superior Court of 2 California, County of San Diego. 3 BACKGROUND 4 On March 30, 2021, Plaintiffs filed a Complaint against BMW in the Superior Court 5 of California, County of San Diego. (See generally ECF No. 1-4 (“Compl.”).) In their 6 Complaint, Plaintiffs allege that they purchased a new 2012 BMW X3, VIN 7 5UXWX7C56CL737601 (the “Vehicle”) from BMW of Encinitas on December 30, 2011. 8 (See id. ¶ 9.) They made a $50,000 cash down payment, received a $500 rebate, and 9 financed $11,648.14. (See id.) Including all associated fees, the total amount payable on 10 the purchase of the Vehicle was $62,261.68. (See id.) Although BMW made express and 11 implied warranties regarding the Vehicle, (see id. ¶¶ 10–11), “[t]he Vehicle was delivered 12 to Plaintiffs with serious defects and nonconformities under the warranty and developed 13 other serious defects and nonconformities under BMW’s warranty.” (See id. ¶ 12; see also 14 id. ¶¶ 17–39.) Plaintiffs therefore allege three causes of action for violation of the Song- 15 Beverly Consumer Warranty Act (the “Act”), California Civil Code §§ 1790, et seq.: 16 (1) breach of express warranty, (2) breach of implied warranty, and (3) failure to service in 17 violation of Section 1793.2. (See Compl. ¶¶ 41–81.) 18 On May 3, 2021, BMW filed an Answer in state court, (see generally ECF Nos. 1- 19 3, 2), and, on the same day, a Notice of Removal in this Court, alleging diversity subject- 20 matter jurisdiction pursuant to 28 U.S.C. § 1332(a). (See generally ECF No. 1 (“NOR”).) 21 Specifically, BMW alleges that “[c]omplete diversity . . . exists,” (see id. ¶ 15; see also id. 22 ¶¶ 10–15), and that the amount in controversy exceeds $75,000 including the civil penalties 23 under the Act and prospective attorneys’ fees. (See id. ¶ 19; see also id. ¶¶ 16–19.) On 24 June 2, 2021, Plaintiff filed the instant Motion, arguing that “Defendant BMW . . . has not 25 plausibly alleged the amount in controversy exceeds $75,000.00.” (See Not. at 2.) 26 LEGAL STANDARD 27 “The right of removal is entirely a creature of statute and a suit commenced in a state 28 court must remain there until cause is shown for its transfer under some act of Congress.” 1 Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002). A suit filed in state 2 court may be removed to federal court if the federal court would have had original 3 jurisdiction over the suit. See 28 U.S.C. § 1441(a). “Federal courts are courts of limited 4 jurisdiction. They possess only that power authorized by Constitution and statute.” 5 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Removal is proper 6 when a case originally filed in state court presents a federal question or where there is 7 diversity of citizenship among the parties and the amount in controversy exceeds $75,000. 8 See 28 U.S.C. §§ 1331, 1332(a). “If at any time before final judgment it appears that the 9 district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. 10 § 1447(c). 11 The party invoking the removal statute bears the burden of establishing that federal 12 subject-matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th 13 Cir. 1988). It is “presume[d] that federal courts lack jurisdiction unless the contrary 14 appears affirmatively from the record,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 15 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)), and courts “strictly construe 16 the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 17 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988)); Takeda v. Nw. 18 Nat’l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). Therefore, “[f]ederal jurisdiction 19 must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus, 20 980 F.2d at 566 (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 21 1979)). 22 ANALYSIS 23 BMW removed Plaintiffs’ Complaint from Superior Court on the basis of diversity 24 jurisdiction under 28 U.S.C. § 1332(a). (See, e.g., NOR ¶ 6.) Through the instant Motion, 25 Plaintiffs seek to remand their action to Superior Court. (See generally Mot.; ECF No. 6- 26 1 (“Mem.”).) Plaintiffs do not contest that there is complete diversity of citizenship among 27 the Parties. (See generally id.; see also Opp’n at 6.) Instead, Plaintiffs contend that BMW 28 / / / 1 has failed to meet its burden of establishing that the amount in controversy exceeds 2 $75,000. (See generally Mot.) 3 Federal courts have diversity jurisdiction “where the amount in controversy” 4 exceeds $75,000, and the parties are of “diverse” state citizenship. See 28 U.S.C. 5 § 1332(a). A defendant seeking to remove a case to federal court must provide only a 6 “short and plain statement of the grounds for removal.” See 28 U.S.C. § 1446(a). 7 Consequently, “when a defendant seeks federal-court adjudication, the defendant’s 8 amount-in-controversy allegation should be accepted when not contested by the plaintiff 9 or questioned by the court.” See Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 10 81, 87 (2014). But “[i]f the plaintiff [or the court] contests the defendant’s allegation, 11 § 1446(c)(2)(B) instructs: ‘[R]emoval . . . is proper on the basis of an amount in 12 controversy asserted’ by the defendant ‘if the district court finds, by the preponderance of 13 the evidence, that the amount in controversy exceeds’ the jurisdictional threshold.” See id. 14 at 88 (third and fourth alterations in original). 15 “[T]he plaintiff can contest the amount in controversy by making either a ‘facial’ or 16 ‘factual’ attack on the defendant’s jurisdictional allegations.” Harris v. KM Indus., Inc., 17 980 F.3d 694, 699 (9th Cir. 2020) (citing Salter v. Quality Carriers, 974 F.3d 959, 964 (9th 18 Cir. 2020)). “A ‘facial’ attack accepts the truth of the [defendant’s] allegations but asserts 19 that they ‘are insufficient on their face to invoke federal jurisdiction.’” Id. (alteration in 20 original) (quoting Salter, 974 F.3d at 964). “A factual attack ‘contests the truth of the . . . 21 allegations’ themselves,” id. (alteration in original) (quoting Salter, 974 F.3d at 964), or 22 “make[s] a reasoned argument as to why any assumptions on which they are based are not 23 supported by evidence.” Id. at 700 (citing Salter, 974 F.3d at 964; Ibarra v. Manheim Invs., 24 Inc., 775 F.3d 1193, 1199 (9th Cir. 2015)). “When a plaintiff mounts a factual attack, the 25 burden is on the defendant to show, by a preponderance of the evidence, that the amount 26 in controversy exceeds the . . . jurisdictional threshold.” Id. at 699 (citing Ibarra, 775 F.3d 27 at 1197). “[W]hen the defendant relies on a chain of reasoning that includes assumptions 28 to satisfy its burden of proof, the chain of reasoning and its underlying assumptions must 1 be reasonable ones.” LaCross v. Knight Transp. Inc., 775 F.3d 1200, 1202 (9th Cir. 2015) 2 (citing Ibarra, 775 F.3d. at 1199). “Both parties may submit evidence supporting the 3 amount in controversy before the district court rules.”2 Harris, 980 F.3d at 699 4 (citing Salter, 974 F.3d at 963; Ibarra, 775 F.3d at 1197). 5 “In determining the amount in controversy, courts first look to the complaint.” 6 Ibarra, 775 F.3d at 1197. “Generally, ‘the sum claimed by the plaintiff controls if the 7 claim is apparently made in good faith.’” Id. (quoting St. Paul Mercury Indem. Co. v. Red 8 Cab Co., 303 U.S. 283, 289 (1938)). But “[w]here it is not facially evident from the 9 complaint that more than $75,000 is in controversy, the removing party must prove, by a 10 preponderance of the evidence, that the amount in controversy meets the jurisdictional 11 threshold.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 12 2003) (per curiam). When a damages estimate is articulated in the complaint and not 13 “repeated in the Prayer for Relief . . . , the complaint fails to allege a sufficiently specific 14 total amount in controversy,” and the preponderance of evidence standard applies. See 15 Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007). 16 Here, Plaintiffs allege only that, “[i]ncluding all associated fees, the total amount 17 paid or payable on the purchase of the Vehicle is $62,261.68.” (See Compl. ¶ 9.) Plaintiffs 18 do not plead that the amount in controversy exceeds $75,000. (See generally id.; see also 19 id. at Prayer for Relief.) Rather, BMW makes certain assumptions—including that (1) the 20 amount paid for the Vehicle is equal to the sales price in the contract, (2) there is no mileage 21 offset, (3) a jury would award Plaintiffs the maximum civil penalty under the Act, and 22 (4) Plaintiffs would be entitled to significant attorneys’ fees, (see NOR ¶ 19; Opp’n at 23 8–16)—to establish that the amount in controversy exceeds $75,000. Because Plaintiffs 24 have challenged those assumptions, however, the burden is on BMW to establish by a 25 / / / 26 27 2 To the extent Plaintiffs argue that BMW is precluded from proving up a mileage offset, civil penalties, 28 and attorneys’ fees in its Opposition, (see Reply at 1, 8), this argument is foreclosed by the approach 1 preponderance of the evidence that the amount in controversy exceeds $75,000. See, e.g., 2 Dart Cherokee, 574 U.S. at 88. 3 On the present record, the Court concludes that BMW has failed to establish that the 4 assumptions it used in calculating an amount in controversy exceeding the $75,000 5 threshold are reasonable and supported by a preponderance of the evidence. Under the 6 Act, “if the manufacturer . . . does not service or repair the goods to conform to the 7 applicable express warranties . . . , the manufacturer shall . . . reimburse the buyer in an 8 amount equal to the purchase price paid by the buyer, less that amount directly attributable 9 to use by the buyer prior to the discovery of the nonconformity.” Cal. Civ. Code 10 § 1793.2(d)(1). BMW’s first two challenged assumptions relate to this calculation. As for 11 BMW’s first assumption, it has introduced evidence establishing by a preponderance of the 12 evidence that Plaintiffs actually paid $62,197.18 under the contract for the purchase of the 13 Vehicle.3 (See ECF No. 10-1 (“Oaks Decl.”) ¶ 5; ECF No. 10-4 (payment history); see 14 also Mem. at 6–9 (arguing that Defendant failed to introduce evidence of the amounts 15 actually paid under the contract).) 16 BMW fails, however, to meet its burden as to the mileage offset. BMW first argues 17 that the mileage offset is zero because “Plaintiffs allege that the Vehicle was delivered with 18 such defects, effectively stating that such defects existed at the time of sale.” (Opp’n at 13 19 (emphasis in original) (citing Compl. ¶ 43).) But “[w]hether the defects existed . . . at the 20 time of sale is irrelevant” because “[t]he mileage offset is based on the buyer’s use of the 21 vehicle prior to the buyer’s discovery of the nonconformity.” Cox v. Kia Motors Am., Inc., 22 No. 20-CV-02380-BLF, 2020 WL 5814518, at *4 (N.D. Cal. Sept. 30, 2020) (emphasis in 23 original) (citing Cal. Civ. Code § 1793.2(d)(1)). Here, Plaintiffs allege that they brought 24 the Vehicle in for service twenty-one times between the purchase date and August 28, 25 2019. (See Compl. ¶¶ 17–37.) It is unclear from the face of the Complaint at what point 26 27 3 In their Reply, Plaintiffs cha llenge the purchase contract on the ground that BMW failed properly to 28 authenticate it. (See Reply at 2.) Even if this objection had merit, Plaintiffs do not challenge the payment 1 Plaintiffs discovered the “nonconformity,” (see generally id.); nonetheless, BMW 2 randomly selects Plaintiffs’ second service visit for a coolant issue, at which point the 3 Vehicle had 9,922 miles, to calculate a mileage offset of $4,176.88. (See Opp’n at 4 13–14; see also Compl. ¶ 18.) At the hearing, BMW explained for the first time that it 5 chose Plaintiffs’ second service visit because a defendant is entitled to a reasonable number 6 of repair opportunities under the law—at least two—before it is obligated to repurchase the 7 vehicle. See Cal. Civ. Code § 1793.22(b). Plaintiffs responded that the offset, however, is 8 calculated based on when the buyer first sought repair of the problem giving rise to the 9 nonconformity. See Cal. Civ. Code § 1793.2(d)(2)(C). The Court is sympathetic to 10 BMW’s dilemma given Plaintiffs’ identification of several nonconformities serviced on 21 11 separate occasions. Nonetheless, the burden is on BMW to provide at least some 12 justification for the assumption underlying its offset estimate, and no reasonable 13 justification was provided here. 14 Even if the Court were to accept BMW’s proposed offset and resultant calculation 15 of $58,020.30 in actual damages,4 however, BMW fails to establish that the civil penalties 16 and/or attorneys’ fees awardable under the Act are more likely than not to exceed 17 $16,979.71. As for the civil penalties, “[i]f the buyer establishes that the failure to comply 18 was willful, the judgment may include . . . a civil penalty which shall not exceed two times 19 the amount of actual damages.” Cal. Civ. Code § 1794(c); accord Cal. Civ. Code 20 §§ 1794(e)(1), (5). BMW contends that the maximum civil penalty is “at issue” for 21 purposes of establishing the amount in controversy, (see Opp’n at 9–12), while Plaintiffs 22 argue that BMW fails to establish that it is more likely than not either that a civil penalty 23 / / / 24

25 4 Plaintiffs cite no authority to support their contention that, “[t]o accurately ascertain damages, the value of the Vehicle would need to be[] determined and deducted from the damages in this case.” (See Mot. at 26 9; see also Reply at 1–2.) Additionally, because Defendants provide no basis for their exclusion, the Court declines to reduce the amount in controversy by an additional $6,900 for the manufacturer’s rebate ($500), 27 BMW Platinum Extended Vehicle Protection Plan ($3,400), BMW maintenance plan ($2,000), and BMW 28 tire and wheel warranty ($1,000). (See Opp’n at 14.) In any event, the inclusion or exclusion of these 1 will be awarded or that the amount of such a penalty will put more than $75,000 at issue. 2 (See Mem. at 10–13.) 3 “District courts in the Ninth Circuit are split on whether to include Song-Beverly 4 Act civil penalties in calculations to assess the amount in controversy.” Ferguson v. KIA 5 Motors Am. Inc., No. 2:20-CV-01192-KJM-DB, 2021 WL 1997550, at *3 (E.D. Cal. 6 May 19, 2021) (collecting cases); see also Modiano v. BMW of N. Am. LLC, No. 21-CV- 7 00040-DMS-MDD, 2021 WL 973566, at *3 (S.D. Cal. Mar. 16, 2021) (collecting cases 8 revealing split within this District). The Court concludes that requiring the defendant to 9 “make some effort to justify the assumption . . . appears more consistent with the general 10 principle that where the state-court complaint does not specify a damage figure, the 11 defendant must provide evidence establishing that it is more likely than not that the amount 12 in controversy requirement is satisfied.” See Ronquillo v. BMW of N. Am., LLC, No. 3:20- 13 CV-1413-W-WVG, 2020 WL 6741317, at *3 (S.D. Cal. Nov. 17, 2020) (quoting Sanchez, 14 102 F.3d at 404) (citing Matheson, 319 F.3d at 1090); see also Zawaideh v. BMW of N. 15 Am., LLC, No. 17-CV-2151 W (KSC), 2018 WL 1805103, at *2 (S.D. Cal. Apr. 17, 2018) 16 (concluding that, as with punitive damages, “[r]ather than simply assume that because a 17 civil penalty is available, one will be awarded, the defendant must make some effort to 18 justify the assumption by, for example, pointing to allegations in the Complaint suggesting 19 award of a civil penalty would be appropriate, and providing evidence—such as verdicts 20 or judgments from similar cases—regarding the likely amount of the penalty.”). 21 BMW contends that a civil penalty of two times Plaintiffs’ actual damages should 22 be included in the amount in controversy because Plaintiffs pray for the full civil penalty 23 and allege that BMW acted “willfully.” (See Opp’n at 11 (citing Compl. ¶ 55 & Prayer for 24 Relief ¶ 5).) “Other than referring to Plaintiff[s’] allegation that [BMW] acted willfully, 25 however, [BMW] provides no support for the likelihood that a civil penalty based on its 26 willfulness would actually be awarded in this case, or that the full civil penalty would be 27 awarded.” See Savall v. FCA US LLC, No. 21CV195 JM (KSC), 2021 WL 1661051, at *3 28 (S.D. Cal. Apr. 28, 2021). “Moreover, even Plaintiff[s’] lengthy Complaint alleges only 1 that [BMW]’s obligations were willfully violated because, in effect, [BMW] . . . failed to 2 promptly provide Plaintiff[s] with satisfactory redress.” Id.; see also Compl. ¶¶ 38–39, 3 49–51. “If such boilerplate allegations were sufficient to defeat remand, then virtually any 4 Song-Beverley action involving a new vehicle purchase would remain in federal court.” 5 See Savall, 2021 WL 1661051, at *3. As Defendant’s counsel admitted at the hearing, a 6 jury could decide to award a civil penalty or it could not; however, for purposes of the 7 instant Motion, the burden of establishing that it is more likely than not that a jury will 8 award a civil penalty is on Defendant. The Court therefore concludes that BMW has failed 9 to meet its burden of establishing by a preponderance of the evidence that the civil penalty 10 authorized under the Act should be included in the amount-in-controversy. See, e.g., id.; 11 cf. Zeto v. BMW of N. Am., LLC, No. 20-CV-1380-GPC-KSC, 2020 WL 6708061, at *5 12 (S.D. Cal. Nov. 16, 2020) (including civil penalties in amount-in-controversy where the 13 “[d]efendant submitted a detailed breakdown of how the civil penalties were calculated, 14 backed up by passages from the complaint and other evidentiary exhibits”). 15 Finally, as for attorneys’ fees, contrary to Plaintiffs’ assertion, (see Mem. at 13–14; 16 Reply at 5; Oral Argument), “when a statute or contract provides for the recovery of 17 attorneys’ fees, prospective attorneys’ fees must be included in the assessment of the 18 amount in controversy.” Arias v. Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 19 2019) (citing Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 794 (9th Cir. 2018)). 20 “The defendant retains the burden, however, of proving the amount of future attorneys’ 21 fees by a preponderance of the evidence.” See id. at 927–28 (quoting Fritsch, 899 F.3d at 22 788). “The type of evidence that courts have considered to estimate reasonable future 23 attorney’s fees include a percentage of economic damages alleged, fee awards in similar 24 cases, and estimates of the number of hours that will likely be required to litigate the 25 pending case multiplied by the opposing counsel’s hourly rate.” Peck v. First Student, Inc., 26 No. 3:17-CV-0863-SI, 2017 WL 3288116, at *3 (D. Or. Aug. 2, 2017) (collecting cases). 27 The district court retains discretion, however, “to determine whether defendants have 28 carried their burden of proving future attorneys’ fees, and to determine when a fee estimate 1 is too speculative because of the likelihood of a prompt settlement.” See Fritsch, 899 F.3d 2 at 795. 3 Here, Plaintiffs allege that they are entitled to attorneys’ fees under the Act, (see 4 Compl. ¶¶ 54, 67, 79), which explicitly authorizes the recovery of attorneys’ fees. See Cal. 5 Civ. Code § 1794(d). The Court therefore must include Plaintiffs’ prospective attorneys’ 6 fees in the amount in controversy, so long as BMW’s estimate is reasonable given the 7 preponderance of the evidence. See Arias, 936 F.3d at 922; Fritsch, 899 F.3d at 794. To 8 meet its burden, BMW cites cases in which “substantial” attorneys’ fees were awarded, 9 (see Opp’n at 16 (citing Gezalyan v. BMW of N. Am., LLC, 697 F. Supp. 2d 1168, 1171 10 (C.D. Cal. 2010) ($50,404.34); Goglin v. BMW of N. Am., LLC, 4 Cal. App. 5th 462, 470 11 (2016) ($185,214.19))), and introduces evidence of billing rates for Plaintiffs’ counsel, (see 12 id. at 16 ($250 to $450 per hour); see also Oaks Decl. ¶ 7; ECF Nos. 10-7, 10-8), as well 13 as fees Plaintiffs’ counsel has been awarded in other cases. (See Opp’n at 16 ($131,427.50, 14 $201,698.50, $69,885); see also Oaks Decl. ¶¶ 6–7; ECF Nos. 10-6–10-8.) BMW also 15 “anticipates that Plaintiffs’ counsel will bill at least 100–120 hours litigating this matter 16 (inclusive of appearances, discovery, pleading and motion practice, and trial preparation).” 17 (See Opp’n at 16 (emphasis in original).) BMW therefore concludes that the “potential 18 attorneys’ fees sought in this matter [come] to $45,000.00, at minimum.” (See id. 19 (emphasis in original).) 20 Based on the cases BMW cites, however, BMW appears to assume that this case will 21 involve protracted litigation. See, e.g., Gezalyan, 697 F. Supp. 2d at 1169–70 ($50,404.34 22 for fourteen months of active litigation resulting in repurchase of vehicle from the 23 plaintiff); Goglin, 4 Cal. App. 5th at 465–69 ($185,214.19 for fifteen months of active 24 litigation, including discovery, resulting in settlement); ECF No. 10-6 at 1–3 ($131,427.50 25 for two years of litigation culminating in jury trial); ECF No. 10-7 ($201,698.50 for nearly 26 two years of litigation culminating in jury trial); ECF No. 10-8 ($69,885 for three years of 27 / / / 28 / / / 1 litigation culminating in jury trial). In the Court’s—and undoubtedly the Parties’— 2 experience, the vast majority of civil cases settle well before trial, particularly those 3 involving lower stakes and relatively straightforward legal issues. At the hearing, BMW 4 contended for the first time that, while most cases of this type settle, the “vast majority” of 5 those litigated by Plaintiffs’ counsel proceed to arbitration or trial. Because BMW failed 6 to address this issue in its Opposition, however, there is no evidence before the Court 7 supporting this contention. 8 While a defendant may meet its burden to establish a reasonable estimate of 9 attorneys’ fees by identifying awards in other cases, those cases must be similar enough to 10 the case at hand that the court can conclude that it is more likely than not that the plaintiff 11 may incur a similar fee award. See, e.g., Cruz v. Mercedes-Benz USA, LLC, No. 12 220CV05167ODWJCX, 2020 WL 5797917, at *3–4 (C.D. Cal. Sept. 29, 2020); Peck, 13 2017 WL 3288116, at *3. Here, BMW “has failed to establish why this action is similar to 14 th[e selected] . . . cases,” Cruz, 2020 WL 5797917, at *3, which involve extraordinary fee 15 awards for cases under the Act. BMW “does not contend that this action will likely be 16 litigated like the . . . cases cited, nor does it provide support for the notion that this case 17 could span up to two [or even three] years.” See id. “Because [BMW] only offers 18 conclusions and speculative assumptions to substantiate its attorneys’ fees calculation, 19 [BMW]’s statements fall short of the required summary judgment-type evidence.” See id. 20 Given BMW’s failure to substantiate a reasonable estimate of the attorneys’ fees Plaintiffs 21 may incur in this case, the Court declines to consider those fees as part of the amount in 22 controversy. 23 / / / 24 / / / 25 5 Where BMW has provided only the judgment as an exhibit to the Oak Declaration, the Court has taken 26 judicial notice of the underlying docket to determine when the action was filed and when the jury returned a verdict. See Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111, 1116 (C.D. Cal. 2010) (“[A] court 27 ‘may take judicial notice of matters of public record, including duly recorded documents, and court records 28 available to the public through the Pacer system via the internet.’” (quoting C.B. v. Sonora Sch. Dist., 691 1 In sum, BMW has failed to meet its burden of establishing by a preponderance of 2 ||the evidence that the amount in controversy exceeds $75,000. The Court therefore 3 || concludes that it lacks subject-matter jurisdiction over this action. 4 CONCLUSION 5 For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Remand (ECF 6 6) and REMANDS this action to the Superior Court of California, County of San 7 Diego. The Clerk of Court SHALL CLOSE the file. 8 IT IS SO ORDERED. 9 Dated: September 23, 2021 —— 10 [Past Serene 2 (Sm 1S bre Honorable Todd W. Robinson 12 United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28