1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 FRANCISCO SCHILLER, on behalf of Case No. 5:20-cv-02662-JWH-(KKx) himself and all other 12 similarly-situated employees, ORDER GRANTING PLAINTIFF’S 13 Plaintiff, MOTION TO REMAND [ECF No. 11] 14 v.

15 ASHLEY DISTRIBUTION SERVICES, LTD.; and 16 DOES 1 through 10, Inclusive,

17 Defendants.

18 19 20 21 22 23 24 25 26 27 1 Before the Court is the Motion of Plaintiff Francisco Schiller to remand 2 this action to the San Bernardino County Superior Court pursuant to 28 U.S.C. 3 § 1447.1 The Court finds this matter appropriate for resolution without a 4 hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in 5 support and in opposition,2 the Court GRANTS Schiller’s Motion, for the 6 reasons explained below. 7 I. BACKGROUND 8 On July 23, 2020, Schiller, individually and purportedly on behalf of all 9 others similarly situated, filed his Complaint commencing this action in the 10 Superior Court of the State of California for the County of San Bernardino.3 11 Schiller asserts seven claims for relief in his Complaint: (1) Failure to Pay 12 Minimum, Regular, and Overtime Wages (the “Unpaid Wage Claim”); 13 (2) Failure to Provide Meal Periods or Compensation in Lieu Thereof (the 14 “Meal Period Claim”); (3) Failure to Provide Rest Periods or Compensation in 15 Lieu Thereof (the “Rest Period Claim”); (4) Failure to Provide Accurate 16 Itemized Wage Statements (the “Wage Statement Claim”); (5) Failure to 17 Timely Pay Wages Due Upon Separation of Employment (the “Waiting Time 18 Penalty Claim”); (6) Failure to Reimburse Business-Related Expenses (the 19 “Business Expense Claim”); and (7) Violation of the Unfair Competition Law, 20

, et seq.4 21 22

23 1 Pl.’s Mot. to Remand to State Court [ECF No. 11] (the “Motion”). 2 The Court considered the following papers in connection with the 24 Motion: (1) Defs.’ Notice of Removal of Civil Action (including its attachments) (the “Removal Notice”) [ECF No. 1]; (2) Pl.’s Compl. (the 25 “Complaint”) [ECF No. 1-3]; (3) the Motion (including its attachments); (4) Defs.’ Opp’n to the Motion (including its attachments) (the “Opposition”) 26 [ECF No. 12]; and (5) Pl.’s Reply in Supp. of the Motion (the “Reply”) [ECF No. 13]. 27 3 See generally Complaint. 1 Defendant Ashley Distribution Services, Ltd. filed its Answer to 2 Schiller’s Complaint in the Superior Court on December 28, 2020.5 On 3 December 29, 2020, Ashley removed the action to this Court pursuant to 4

, asserting jurisdiction under the Class Action Fairness Act 5 (“CAFA”),

(d).6 6 On February 1, 2021, Schiller filed the instant Motion to Remand. Ashley 7 timely filed its Opposition on February 19, 2021, and Schiller timely filed his 8 Reply on February 26, 2021. 9 II. LEGAL STANDARD 10 Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey 11 possess only that power authorized by Constitution and statute.” Kokkonen v. 12 Guardian Life Ins. Co. of Am.,

(1994). In every federal case, the 13 basis for federal jurisdiction must appear affirmatively from the record. See 14 DaimlerChrysler Corp. v. Cuno,

, 342 n.3 (2006). “The right of 15 removal is entirely a creature of statute and a suit commenced in a state court 16 must remain there until cause is shown for its transfer under some act of 17 Congress.” Syngenta Crop Prot., Inc. v. Henson,

(2002) (internal 18 quotation marks omitted). Where Congress has acted to create a right of 19 removal, those statutes, unless otherwise stated, are strictly construed against 20 removal jurisdiction. See

Unless otherwise expressly provided by Congress, 21 “any civil action brought in a State court of which the district courts of the 22 United States have original jurisdiction, may be removed by the defendant or the 23 defendants, to the district court.”

(a); see Dennis v. Hart, 724

, 1252 (9th Cir. 2013) (internal quotation marks omitted). 25 26 27 5 See generally Defs.’ Answer (the “Answer”) [ECF No. 1-1, Ex. G]. 1 To remove an action to federal court under

(a), the 2 removing defendant “must demonstrate that original subject-matter jurisdiction 3 lies in the federal courts.” Syngenta,

. In other words, the 4 removing defendant bears the burden of establishing that removal is proper. See 5 Abrego Abrego v. The Dow Chem. Co.,

(9th Cir. 2006) (noting 6 the “longstanding, near-canonical rule that the burden on removal rests with the 7 removing defendant”); Gaus v. Miles, Inc.,

(9th Cir. 1992) 8 (“The strong presumption against removal jurisdiction means that the 9 defendant always has the burden of establishing that removal is proper.” 10 (quotation marks omitted)). Any doubts regarding the existence of subject 11 matter jurisdiction must be resolved in favor of remand. See

(“Federal 12 jurisdiction must be rejected if there is any doubt as to the right of removal in the 13 first instance.”). 14 III. DISCUSSION 15 Ashley removed the action to this Court pursuant to

, 16 asserting jurisdiction under the CAFA. Therefore, Ashley bears the burden of 17 establishing that this Court has original subject matter jurisdiction over the 18 action. 19 A. Legal Standard Under the CAFA 20 Under the CAFA, the Court has “original jurisdiction of any civil action 21 in which the matter in controversy exceeds the sum or value of $5,000,000, 22 exclusive of interest and costs, and is a class action in which” there is minimal 23 diversity.

(d)(2). To remove a case to federal court under the 24 CAFA, the defendant must demonstrate that the amount in controversy exceeds 25 $5 million, exclusive of interest and costs.

The general rule is that a 26 removing defendant’s well-pleaded amount in controversy allegations “should 27 be accepted when not contested by the plaintiff or questioned by the court.” 1 1193, 1197 (9th Cir. 2015) (in evaluating the amount in controversy, the court 2 first looks to the complaint). 3 However, where, as here, the plaintiff challenges the removing 4 defendant’s jurisdictional allegation, under

(c)(2)(B), 5 “removal . . . is proper on the basis of an amount in controversy asserted” by the 6 defendant only “if the district court finds, by the preponderance of the evidence, 7 that the amount in controversy exceeds” the jurisdictional threshold. Dart 8 Cherokee, 574 U.S. at 88. “In such a case, both sides submit proof and the court 9 decides . . . whether the amount-in-controversy requirement has been satisfied.” 10 Id. The preponderance of the evidence standard means that the “defendant 11 must provide evidence establishing that it is ‘more likely than not’ that the 12 amount in controversy” meets or exceeds the jurisdictional threshold. Sanchez 13 v. Monumental Life Ins. Co.,

(9th Cir. 1996) (emphasis added). 14 The defendant must set forth the underlying facts supporting its assertion that 15 the amount in controversy exceeds the statutory minimum. Gaus,

567. In addition to the contents of the notice of removal, the Court may 17 consider “summary-judgment-type evidence relevant to the amount in 18 controversy at the time of removal,” such as affidavits or declarations. Ibarra, 19 775 F.3d at 1197; Valdez v. Allstate Ins. Co.,

(9th Cir. 2004). 20 There is no presumption against removal jurisdiction in CAFA cases. Dart 21 Cherokee, 574 U.S. at 89. 22 Here, as a threshold matter, the parties agree that there is minimal 23 diversity, as required by the CAFA.7 See

(d)(2). The only 24 jurisdictional dispute is with respect to the amount in controversy requirement 25 under the CAFA. 26 27 1 B. Amount in Controversy 2 Schiller challenges Ashley’s invocation of CAFA jurisdiction on the 3 ground that Ashley has not satisfied the amount in controversy requirement.8 In 4 addition to the calculation of the amount in controversy in its Notice of 5 Removal, Ashley also provides a “conservative” and a “most conservative” 6 model of the amounts in controversy.9 7 In calculating the amounts in controversy, Ashley defined the Class 8 Period as August 24, 2018, to the present.10 Based upon Ashley’s payroll data 9 and timekeeping records, at the time of removal, there were approximately 343 10 non-exempt employees in California who worked more than 21,409 workweeks 11 during the Class Period.11 Based upon updated data for the period between 12 August 24, 2018, through February 21, 2021, there were approximately 363 13 non-exempt employees in California who worked 22,576 workweeks.12 Ashley’s 14 original calculation of the amount in controversy utilized a “conservative hourly 15 pay rate based on the current minimum wage of $13.00 per hour . . . .”13 In 16 calculating the updated “Conservative” and “Most Conservative” models of 17 the amount in controversy, Ashley utilized the average rate of pay for all 18 employees, which it calculated as $19.44 per hour.14 19 8 See generally Motion. 20 9 See Opposition 19:3–23 (the “more conservative” and “most 21 conservative” amounts in controversy include an adjustment in the average hourly range from $13.00 per hour (minimum wage) in the original calculation to 22 $19.44 per hour which is the average hourly rate for all employees); see also Suppl. Decl. of Devin Rauchwerger in Supp. of the Removal Notice (the 23 “Suppl. Rauchwerger Decl.”) [ECF No. 12-3] ¶¶ 4 & 5. 10 See Removal Notice ¶ 31; see also Opposition 15:16–16:16. For the purpose 24 of the instant Motion, Schiller accepts as true that the Class Period begins on August 24, 2018. Motion 3:25 n.3. 25 11 See Removal Notice ¶ 32; Decl. of Devin Rauchwerger in Supp. of the 26 Removal Notice (the “Rauchwerger Decl.”) [ECF No. 1-1] ¶¶ 15& 16). 12 See Suppl. Rauchwerger Decl. ¶ 4; Opposition 15:16–16:16. 27 13 Removal Notice ¶ 32 (citing Rauchwerger Decl. ¶ 16). 1 According to each of Ashley’s models, the potential amounts in 2 controversy are as follows:15 3 Claim for Relief (Original Model) Amount in Controversy 4 Unpaid Wage Claim (assuming 3 hours/week) $1,252,42716 5 Meal Period Claim (assuming 5 violations/week) $1,391,58517 6 Rest Period Claim (assuming 5 violations/week) $1,391, 58518 7 Wage Statement Claim $898,05019 8 Waiting Time Penalty Claim $443,04020 9 Business Expense Claim ($7.50 rate) $160,56721 10 TOTAL $5,537,254 11 12 Claim for Relief (Conservative Model) Amount in Controversy 13 Unpaid Wage Claim (assuming 2 hours/week) $1,316,63222 14 Meal Period Claim (assuming 3 violations/week) $1,316,63223 15 16 17 15 In an abundance of caution, Ashley also includes a calculation of the 18 amount in controversy with respect to Schiller’s claims for attorneys’ fees. The Court will address the amount in controversy for Schiller’s claims for attorneys’ 19 fees after addressing each of the individual claims. 20 16 Calculated as $19.50 [overtime rate] x 3 hours per week x 21,409 workweeks. Rauchwerger Decl. ¶ 17. 21 17 Calculated as $13.00 [one hour of pay] x 5 days per week x 21,409 workweeks. Rauchwerger Decl. ¶ 18. 22 18 Calculated as $13.00 [one hour of pay] x 5 days per week x 21,409 23 workweeks. Rauchwerger Decl. ¶ 19. 19 See Removal Notice ¶¶ 39 & 40 (citing Rauchwerger Decl. ¶ 20). 24 20 Calculated as $13.00 x 8 hours per day x 30 days x 142 class members. 25 Rauchwerger Decl. ¶ 21. 21 Calculated as 21,409 pay periods x $7.50 per pay period.

. 26 22 Calculated as $29.16 [overtime rate] x 2 hours per week x 22,576 27 workweeks. Suppl. Rauchwerger Decl. ¶ 6. 23 Calculated as $19.44 [one hour of pay] x 3 days per week x 22,576 1 Rest Period Claim (assuming 3 violations/ week) $1,316, 63224 2 Wage Statement Claim $1,088,35025 3 Waiting Time Penalty Claim $681,17726 4 Business Expense Claim ($5.00 rate) $112,88027 5 TOTAL $5,832,303 6 7 Claim for Relief (Most Conservative Model) Amount in Controversy 8 Unpaid Wage Claim (assuming 1.5 hours/week) $987,47428 9 Meal Period Claim (assuming 2 violations/ week) $877,75429 10 Rest Period Claim (assuming 3 violations/ week) $1,316, 63230 11 Wage Statement Claim $1,088,35031 12 Waiting Time Penalty Claim $681,17732 13 Business Expense Claim ($5.00 rate) $112,88033 14 TOTAL $5,064,267 15

16 17 18 24 Calculated as $19.44 [one hour of pay] x 3 days per week x 22,576 19 workweeks.

. 25

. 20 26 Calculated as $19.44 x 8 hours per day x 30 days x 146 class members.

21 at ¶ 12. 27 Calculated as 22,576 pay periods x $5.00 per pay period.

. 22 28 Calculated as $29.16 [overtime rate] x 1.5 hours per week x 22,576 23 workweeks.

. 29 Calculated as $19.44 [one hour of pay] x 2 days per week x 22,576 24 workweeks.

. 25 30 Calculated as $19.44 [one hour of pay] x 3 days per week x 22,576 workweeks. See

. 26 31

. 27 32 Calculated as $19.44 x 8 hours per day x 30 days x 146 class members.

. 1 Schiller contends that Ashley has not shown, by a preponderance of 2 evidence, that the amount in controversy meets or exceeds the $5 million 3 threshold. In this regard, Schiller objects to Ashley’s assumptions regarding 4 violation rates for the Unpaid Wages claim and the Meal and Rest Period Claim 5 and to the reimbursement rate that Ashley utilized to calculate the amount in 6 controversy for the Unreimbursed Business Expense Claim.34 Schiller does not, 7 however, challenge Ashley’s calculation of the amount in controversy with 8 respect to the other claims. 9 1. The Uncontested Claims 10 Schiller does not contest Ashley’s calculation of the amount in 11 controversy for the Wage Statement Claim or the Waiting Time Penalty 12 Claim.35 Accordingly, the Court finds that Ashley’s assumptions in calculating 13 the amount in controversy for these claims are reasonable. For the purpose of 14 this analysis, the Court will adopt the most up to date amount in controversy 15 calculation for each of these claims, proffered by Ashley in its Opposition:36 the 16 amount in controversy for the Wage Statement Claim is $1,088,350;37 and the 17 amount in controversy for the Waiting Time Penalty Claim is $681,177.38 18 2. The Unpaid Wage Claim 19 In support of his Unpaid Wage Claim, Schiller alleges, in pertinent part, 20 that Ashley failed to pay “minimum, regular, and overtime wages for all hours 21 worked in excess of 8 hours per day and/or 40 hours per week.”39 Schiller 22

23 34 See Motion at 4:9–8:8 & 9:4–23; Reply 2:22–6:15. 35 See Motion 8:9–9:3. 24 36 The Court adopts the updated calculations because Schiller did not 25 contest the reasonableness of Ashley’s original assumptions. The updated figures are based upon the same uncontested assumptions, with updated data 26 inputs. See Opposition 18:1–20. 37

. 27 38

. 1 specifically alleges that, among other things, he and the putative class members 2 (the “PCMs”) were not paid for their time spent undergoing daily medical 3 checks or their time spent receiving and responding to work related phone calls 4 and text messages while off-the-clock.40 Schiller also alleges that Ashley failed 5 to incorporate non-discretionary bonuses for the purpose of calculating overtime 6 pay and that Schiller and other PCMs were “sometimes required” to remain 7 under Ashley’s control during meal and rest periods without being paid any 8 compensation.41 Elsewhere in his Complaint, Schiller alleges that he and the 9 PCMs “regularly worked shifts of more than 10 hours per day.”42 10 Based upon these allegations, in its original calculation of the amount in 11 controversy for the Unpaid Wage Claim, Ashley assumed that each PCM 12 worked three unpaid overtime hours every week. In its Conservative model, 13 Ashley assumed that each PCM worked two hours of unpaid overtime, and in its 14 Most Conservative model, Ashley assumed that each PCM worked 1.5 hours of 15 unpaid overtime.43 Schiller contends that Ashley does not adequately explain 16 the basis for its assumptions.44 Among other deficiencies, Schiller argues that 17 Ashley does not provide any data about the PCMs’ average hours worked per 18 day or any data regarding the average days worked per week.45 19 The Court agrees with Schiller that without information such as the 20 PCMs’ average hours worked per day and the average days worked per week, 21 there is no evidentiary support for Ashley’s assumptions regarding the Unpaid 22 Wage Claim. This Court addressed a similar issue in Vasquez v. RSI Home 23 24 40

25 41

26 42

. 43 See Opposition 16:17–17:9. 27 44 See Motion 4:9–7:3; Reply 2:22–4:24. 1 Products, Inc.,

(C.D. Cal. Nov. 12, 2020). In that case, the 2 defendant’s calculation of the amount in controversy for the unpaid wage claim 3 was based upon an assumption of 30 minutes of unpaid overtime per workweek 4 (six minutes of unpaid overtime per day). See

at *6–7. That assumption was 5 based, in part, upon evidence that the class members worked an average of 8.61 6 hours per workday. See

. Based upon that evidence, and in conjunction 7 with the universal violation rate alleged by the plaintiff, this Court determined 8 that the assumption of 30 minutes of unpaid overtime per week was reasonable. 9 See

at *6–7. 10 In contrast, here, Ashley did not calculate the average number of hours 11 worked per workweek or the average number of days worked per week.46 The 12 sole basis for Ashley’s assumption is Schiller’s allegation that Ashley failed to 13 pay wages for “all hours” worked in eight hours per day or 40 hours per week 14 and the allegation that the PCMs “regularly” worked shifts longer than 10 hours 15 per day.47 In the absence of additional data, however, the Court cannot find that 16 Ashley’s assumptions are reasonable—even its more conservative assumptions. 17 Assuming for the purpose of this analysis that 30 minutes of unpaid overtime per 18 week would be reasonable in this case, see

at *6–7, even though there is no 19 evidentiary support for any such conclusion,48 the amount in controversy for the 20 Unpaid Wage Claim would be $329,158.08.49 21 22 46 See Removal Notice ¶ 34 (assuming three hours of unpaid overtime based 23 upon employment data that 343 PCMs worked 21,409 workweeks during the Class Period). 24 47 See Opposition 8:6–11. 25 48 Other district courts have declined to credit calculations of the amount in controversy where those calculations were based upon unreasonable 26 assumptions. See Allen v. Utiliquest, LLC,

, at *11–12 (N.D. Cal. July 26, 2013); Martinez v. Morgan Stanley,

, at *5 27 (S.D. Cal. Aug. 9, 2010). 49 Calculated as $29.16 [$19.44 x 1.5 (overtime rate)] x 0.5 hours per week x 1 3. The Meal and Rest Period Claims 2 The assumptions underlying Ashley’s calculation of the amount in 3 controversy for the Meal and Rest Period Claims similarly lack evidentiary 4 support. As a general matter, Schiller alleges that he and the PCMs were “not 5 regularly provided duty-free 30-minute meal periods for shift of five hours or 6 more.”50 In support of his Meal Period Claim specifically, Schiller alleges that 7 he and the PCMs were “not provided with legally compliant, off-duty meal 8 periods,”51 including the legally required 30 minute first meal period after five 9 hours of work,52 and the required 30 minute second meal period for shifts longer 10 than 10 hours.53 Regarding the latter, Schiller avers that he and the PCMs 11 “regularly worked shifts of more than 10 hours per day” without being provided 12 the second meal period.54 In support of his Rest Period Claim, Schiller alleges 13 that he and the PCMs were not provided with compliant duty-free rest periods 14 of at least 10 minutes for every four hours worked55 and that PCMs were often 15 “unable to take duty-free rest periods due to the demands of their job.”56 16 Schiller additionally alleges that Ashley failed to provide a third 10 minute rest 17 period for shifts of 10 hours or more and failed to pay the PCMs one hour of pay 18 at the regular rate of pay for days on which the third rest period was not 19 provided.57 20 Based upon these allegations, in its original amount in controversy 21 calculation, Ashley assumes five meal and five rest period violations per week; in 22

23 50 Complaint ¶ 14. 51

. 24 52 See

at ¶¶ 14 & 62. 25 53 See

. 26 54

55 See

at ¶¶ 72 & 73. 27 56

. 1 other words, Ashley’s original calculation assumes a 100% violation rate during 2 each workweek.58 In its Conservative Model, Ashley assumes three meal and 3 three rest per period violations per workweek,59 and in its Most Conservative 4 Model, Ashley assumes two meal period violations60 and three rest period 5 violations per week.61 6 Ashley does not, however, provide any evidentiary support for its 7 assumptions, such as the average number of hours worked per week or the 8 average days worked per week. Instead, Ashley’s assumptions are based solely 9 upon the breadth of Schiller’s allegations regarding the meal and rest period 10 violations.62 Although Schiller’s general allegations regarding the first meal 11 period, which contain the conditional language of “not regularly,” seem to 12 contradict the later unconditioned allegations in support of the Meal Period 13 Claim, the Court cannot simply ignore the conditional allegations, because those 14 allegations still inform the analysis of whether Ashley’s assumptions are 15 reasonable. See Salter v. Quality Carriers, Inc.,

(9th Cir. 16 2020) (“plausible [jurisdictional] allegations” necessarily rely on “reasonable 17 assumptions,” based upon the well-pleaded allegations of the complaint). With 18 that in mind, Schiller’s allegations regarding the first meal period can fairly be 19 read as alleging a conditional violation rate.63 Schiller’s allegations with respect 20 to the second rest period are similarly conditional to the extent that the PCMs 21 “regularly,” but not always, worked shifts of 10 hours our more without being 22 provided a second meal period.64 In this context, the term “regularly” means 23 58 See Removal Notice ¶¶ 35 & 36; Rauchwerger Decl. ¶ 18. 24 59 Opposition 17:11–14 & 17:22–24. 25 60

at 17:16–19. 26 61

at 17:22–24; see also id. at 19:18. 62 See Removal Notice ¶¶ 35 & 36. 27 63 See Complaint ¶¶ 14, 61, & 62. 1 “at the same time each day, week, month, etc. and usually fairly often.” 2 Schiller’s allegations with respect to the Rest Period Claim do not contain any 3 qualifying language;65 therefore, those allegations can fairly be read as alleging a 4 universal violation rate. 5 In Vasquez, the plaintiff alleged a universal violation rate with respect to 6 each of his claims, and this Court determined that the assumption of one meal 7 period and one rest period violation per week was reasonable. See Vasquez, 2020

, at *7–8. District courts addressing similar allegations of a 9 universal violation rate have likewise held that an assumption of one meal and 10 rest period violation per week is reasonable. See, e.g., Nunes v. Home Depot 11 U.S.A., Inc.,

, at *2–3 (C.D. Cal. Sept. 12, 2019) (the 12 defendant’s assumption of one meal and rest period violation per week was 13 reasonable); Salazar v. PODS Enters, LLC,

, at *2–3 14 (C.D. Cal. May 8, 2019) (20% violation rate was reasonable where plaintiff 15 alleged that he and the PCMs were only “occasionally authorized” to take their 16 meal and rest breaks). Reinforcing this point, other district courts have rejected 17 assumptions of, for example, five violations per week based solely upon the 18 wording of the complaint, reasoning that it is equally plausible that employees 19 “regularly” experienced only one violation per week. See Barbosa v. Transp. 20 Drivers, Inc., No. CV 15-08705 RGK (KS),

, at *5– 21 6 (C.D. Cal. May 9, 2016) (rejecting defendant’s assumption of five meal and 22 rest period violations per week where the plaintiff alleged that the PCMs were 23 “regularly” and “consistently” deprived of breaks, explaining that the 24 defendant failed “to prove by a preponderance of the evidence why ‘regular’ or 25 ‘consistent’ violations” supported the defendant’s assumptions); Moreno v. 26 27 1 Ignite Rest. Grp.,

, at *11–12 (N.D. Cal. Mar. 20, 2014) (to 2 similar effect). 3 Therefore, here, in the absence of additional evidentiary support—such as 4 the average number of hours and days worked per workweek, which would at 5 least provide a baseline for assessing how many meal and rest periods employees 6 were entitled to on average—the Court finds that Ashley’s assumptions are 7 unreasonable. See Pretka v. Kolter City Plaza II, Inc.,

, 771– 72 8 (11th Cir. 2010) (“when a removing defendant makes specific factual allegations 9 establishing jurisdiction and can support them . . . with evidence combined with 10 reasonable deductions, reasonable inferences, or other reasonable 11 extrapolations[,][t]hat kind of reasoning is not akin to conjecture, speculation, or 12 star gazing”), cited with approval in Ibarra, 775 F.3d at 1197. Instead, as in 13 Vasquez, the Court finds that an assumption of one meal period violation and 14 one rest period violation per week would be reasonable in view of Schiller’s 15 allegations. With that assumption in place, the total amount in controversy for 16 Schiller’s Meal and Rest Period Claims is $877,754.88.66 17 4. The Business Expense Claim and Attorneys’ Fees Claims 18 With respect to Ashley’s calculation of the amount in controversy for 19 Shiller’s Business Expense Claim, Schiller objects to Ashley’s assumption that 20 each PCM should have received a stipend of $7.50 (or $30 per month) for 21 business expenses.67 The Court declines to make any finding with respect to this 22 assumption because, as explained below, even if Ashley’s assumption is credited 23 as reasonable and the amount is calculated based upon the updated employment 24 25 26 66 Meal Period Claim: calculated as $19.44 [one hour of pay] x 1 day per 27 week x 22,576 workweeks = $438,877.44); Rest Period Claim ($19.44 [one hour of pay] x 1 day per week x 22,576 workweeks. 1 data,68 Ashley still cannot meet the amount in controversy requirement under 2 the CAFA. Similarly, in view of the Court’s findings with respect to the amount 3 in controversy for the underlying claims, even if the Court factors in attorneys’ 4 fees (which are included in the calculation below), Ashley still cannot meet the 5 amount in controversy requirement. 6 5. Final Calculation of the Amount in Controversy 7 In view of the foregoing, the Court calculates the total amount in 8 controversy as follows: 9 Claim for Relief Amount in Controversy 10 Unpaid Wage Claim (assuming 0.5 hours/week) $329,158.0869 11 Meal Period Claim (assuming 1 violation/week) $438,877.4470 12 Rest Period Claim (assuming 1 violation/week) $438,877.4471 13 Wage Statement Claim $1,088,35072 14 Waiting Time Penalty Claim $681,17773 15 Business Expense Claim ($7.50 rate) $169,32074 16 TOTAL $3,145,759.96 17 Attorneys’ Fees Claims $825,00075 18

19 68 Calculated as 22,576 workweeks x $7.50 expense stipend = $169,320). See Rauchwerger Decl. ¶ 22; Suppl. Rauchwerger Decl. ¶ 13. 20 69 Calculated as $29.16 [$19.44 x 1.5 (overtime rate)] x 0.5 hours per week x 22,576 workweeks. 21 70 Calculated as $19.44 [one hour of pay] x 1 day per week x 22,576 22 workweeks. 71 Calculated as $19.44 [one hour of pay] x 1 day per week x 22,576 23 workweeks. 24 72 Suppl. Rauchwerger Decl. ¶ 11. 73 Id. at ¶ 12. 25 74 Calculated as 22,576 workweeks x $7.50 expense stipend = $169,320. See 26 Rauchwerger Decl. ¶ 22; Suppl. Rauchwerger Decl. ¶ 13. 75 Calculated as 1,500 hours x $550 hourly rate. See Opposition 21:20–22:8. 27 Alternatively, using the percentage-of-the-fund method with a generous rate of 25%, the calculation of attorneys’ fees would be: $3,145,759.96 x 0.25 = 2 Therefore, the Court concludes that Ashley has not shown by a 3|| preponderance of the evidence that the amount in controversy meets or exceeds the $5 million threshold under the CAFA. 5 IV. CONCLUSION 6 Based on the foregoing, Plaintiff Francisco Schiller’s instant Motion to 7|| Remand is GRANTED in its entirety. This action is REMANDED to the San &|| Bernardino County Superior Court. 9 IT IS SO ORDERED. MUM Dated: April 6, 2021 . 12 GNITED S FREES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28