O 1 JS-6 2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 DAVID CHAVEZ, Case № 2:19-cv-06003-ODW (GJSx)

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. REMAND [12] 14 FCA US LLC et al., 15 Defendants. 16 I. INTRODUCTION 17 On June 3, 2019, Plaintiff David Chavez (“Chavez”) filed this action in the 18 Superior Court of California, County of Los Angeles. (Notice of Removal (“Notice”) 19 ¶ 1, Ex. A (“Compl.”), ECF No. 1.) Defendant FCA US LLC (“FCA”) removed the 20 matter based on alleged diversity jurisdiction. (Notice ¶ 7–16.) Chavez moves to 21 remand. (Mot. to Remand (“Mot.”), ECF No. 12.) The Court finds that it lacks 22 subject matter jurisdiction and REMANDS this action to state court.1 23 II. BACKGROUND 24 This is a Song-Beverly Consumer Warranty Act (“Song-Beverly”) action 25 concerning a 2016 Jeep Cherokee (“Vehicle”). (Compl. ¶ 5.) Chavez alleges that 26 FCA or its representatives failed to conform the Vehicle after a reasonable number 27

28 1 After considering the papers filed in connection with the Motion to Remand, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 attempts. (Compl. ¶ 13.) On June 3, 2019, Chavez filed this action in the Superior 2 Court of California, County of Los Angeles, Case No. 19STCV19532. (Notice at 1.) 3 Chavez asserts causes of action against FCA under Song-Beverly. (Mot. 1; see 4 Compl. ¶¶ 15–35.) After FCA removed the case on the basis of diversity jurisdiction, 5 Chavez moved to remand. (Mot. 1.) 6 III. LEGAL STANDARD 7 Federal courts have subject matter jurisdiction only as authorized by the 8 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 9 Guardian Life Ins. Co. of Am.,

(1994). A suit filed in state court 10 may be removed to federal court only if the federal court would have had original 11 jurisdiction over the suit.

(a). Federal courts have original 12 jurisdiction where an action arises under federal law or where each plaintiff’s 13 citizenship is diverse from each defendant’s citizenship and the amount in controversy 14 exceeds $75,000.

§§ 1331, 1332(a). 15 After a plaintiff files an action in state court, the defendant attempting to 16 remove the action bears the burden of proving the amount-in-controversy requirement 17 has been met. Lowdermilk v. United States Bank Nat’l Ass’n.,

(9th 18 Cir. 2007). Moreover, the removal statute is strictly construed against removal, and 19 “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal 20 in the first instance.” Gaus v. Miles, Inc.,

(9th Cir. 1992). The 21 party seeking removal bears the burden of establishing federal jurisdiction.

22 IV. DISCUSSION 23 When a complaint, as here, does not identify damages with specificity, a 24 defendant seeking to remove the case to federal court must demonstrate that it is 25 “more likely than not” that the amount in controversy will be satisfied. Sanchez v. 26 Monumental Life Insurance Company,

(9th Cir. 1996). For the 27 reasons below, the Court concludes that FCA has not met this burden. 28 1 A. Actual Damages Under the Song-Beverly Consumer Warranty Act 2 Actual damages under Song-Beverly are the “amount equal to the actual price 3 paid or payable by the buyer,” less the reduction in value “directly attributable to use 4 by the buyer.”

(d)(2)(B)-(C). The reduction is based on the 5 number of miles the buyer has driven prior to the first attempted repair.

6 Here, FCA submits the Retail Installment Sale Contract (“Sale Contract”) 7 which lists the total cash prices of $21,930. (Suppl. Decl. of Tammi Hammond 8 (“Suppl. Hammond Decl.”), Ex. A (“Sale Contract”), ECF No. 14-2). Also included 9 are other fees, registration, and vehicle license fees that total $251. (Sales Contract.) 10 Chavez also agreed to pay 9.5% interest beginning on June 23, 2016 and continuing 11 until May 23, 2022, accordingly, the total finance charge is $7,692.78. (Sales 12 Contract.) Additionally, Chavez damages include sales tax of $1,980.90. (Sales 13 Contract.) Thus, the total amounts to $31,854.68. However, according to a June 28, 14 2016, repair order provided by FCA, the Vehicle had 1,499 miles at the time of repair. 15 (Decl. of Tammi Hammond (“Hammond Decl.”), Ex. C (“Repair Order”), ECF No. 16 13-4.) Accordingly, a mileage offset of $397.92 is appropriate. (Suppl. Opp’n to 17 Mot. (“Suppl. Opp’n”) 1, ECF No. 14.) Therefore, FCA asserts that Chavez’s actual 18 damages amount to $31,456.76. 19 Not so. Foremost, the Sale Contract does not necessarily reflect the amount-in- 20 controversy. Here, Chavez requests restitution for all money paid to FCA; yet, FCA 21 fails to indicate an amount of payments made. (Compl. ¶ 33); Lopez v. FCA US LLC, 22 No. 2:19-CV-07577-RGK (MRWx),

, at *1 (C.D. Cal. Sept. 16, 23 2019) (stating that “[w]ithout this information, the Court is left with considerable 24 doubt as to the amount-in-controversy.”). Additionally, FCA attempts to offset the 25 Vehicle mileage using a dated repair order that occurred a month after Chavez 26 purchased the Vehicle and almost three years before Chavez brought suit in state 27 court. (Repair Order.) Consequently, the court finds that FCA has not established by 28 a preponderance of the evidence that Chavez’s actual damages amount to $31,854.68. 1 B. Civil Penalty Damages are Uncertain 2 If a court determines that a defendant’s failure to comply with the terms of the 3 Act is willful, a successful Song-Beverly plaintiff is entitled to recover civil penalties 4 of up to twice the amount of the actual damages.

(c). If the 5 amount of actual damages is speculative, however, an attempt to determine the civil 6 penalty is equally uncertain. See Edwards v. Ford Motor Co., No. 16-cv-05852 BRO 7 (PLAx),

, at *4 (C.D. Cal. Nov. 4, 2016) 8 A civil penalty is applicable only if a court determines that a defendant’s failure 9 to comply with the Act is willful.

(c). FCA has not offered 10 any evidence to support such an award, and thus, the Court is unable to determine 11 what civil penalties might be imposed. Lopez,

, at *2; see also 12 Eberle v. Jaguar Land Rover N. Am., LLC, No. 2:18-CV-06650-VAP (PLAx), 2018

, at *2 (C.D. Cal. Sept. 26, 2018) (collecting cases). 14 C. Attorney’ Fees 15 Attorneys’ fees are “costs and interests” within the definition of the Act, and are 16 therefore, excluded from the calculation. Lopez,

, at *2 (collecting 17 authorities). Moreover, even if the court was to consider future attorneys’ fees in the 18 amount in controversy, the Ninth Circuit held that a “district court may reject the 19 defendant’s attempts to include future attorneys’ fees in the amount in controversy if 20 the defendant fails to satisfy this burden of proof.” Fritsch v. Swift Transportation 21 Co. of Arizona, LLC,

(9th Cir. 2018). Here, FCA merely states that 22 “the amount in controversy—which is above $75,000 even without attorneys’ fees— 23 only increase . . . the amount in controversy.” (Opp’n to Mot. (“Opp’n”) 8–9., ECF 24 No. 13.) Without more, the Court finds that FCA has failed to satisfy the burden of 25 proof necessary to include attorneys’ fees in the amount in controversy. 26 Ultimately, the Court finds that FCA has not satisfied its burden of 27 demonstrating by a preponderance of the evidence that the amount in controversy 28 meets the jurisdictional requirement. Therefore, the Court lack jurisdiction and 1 | GRANTS Chavez’s Motion. 2 V. CONCLUSION 3 For the reasons discussed above, the Court GRANTS Chavez’s Motion to Remand. (ECF No. 12.) The Court REMANDS the action to the Superior Court of 5 || the State of California, County of Los Angeles, 111 North Hill Street, Los Angeles, 6 || CA 90012, Case No. 19STCV19532. The Clerk of the Court shall close the case. 7 8 IT IS SO ORDERED. 9 10 January 27, 2020 11 LY

OTIS D. WRIGHT, II 14 UNITED STATES DISTRICT JUDGE

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