1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ADRIAN MELENDEZ, Case No. 2:21-cv-02163-MCS-JC 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 MOTION TO REMAND [15] 13 v.

14 SUBARU OF AMERICA, INC., and 15 DOES 1 through 20, inclusive,

16 Defendants. 17 18 19 Plaintiff Adrian Melendez file a Motion to Remand, Defendant Subaru of 20 America, Inc. filed an Opposition and Plaintiff filed a Reply. Mot., ECF No. 15; Opp., 21 ECF No. 17; Reply, ECF No. 21. The Court deems the matter appropriate for decision 22 without oral argument and vacates the hearing. Fed. R. Civ. P. 78(b); Local Rule 7-15. 23 I. BACKGROUND 24 Plaintiff’s 2018 Subaru VRX (the “Vehicle”) exhibited defects after Plaintiff 25 bought it for $37,541.19 on March 19, 2019, including a defective body system, tire 26 pressure monitoring system, transmission system, window wiper system, and 27 “engine/emission system.” Compl. ¶¶ 6, 11-12, ECF No. 1-2; see also Julian Moore 28 Decl. ¶ 3, ECF No. 13-1. Plaintiff presented the Vehicle for repair and notified Subaru 1 of the defects, but Subaru failed to fix them. Compl. ¶¶ 14-15. Based on these 2 allegations, Plaintiff filed a complaint in Ventura County Superior Court asserting five 3 claims against Subaru under the Song-Beverly Warranty Act (“SBA”). Id. ¶¶ 19-42. 4 Plaintiff alleges “[t]he total amount paid and payable, incidental and consequential 5 damages and civil penalties exceeds $25,000” and prays for actual damages; restitution; 6 civil penalties under the SBA up to twice the amount of actual damages; consequential 7 and incidental damages; fees and costs; and prejudgment interest. Id. ¶ 7, PRAYER 8 clause. 9 II. LEGAL STANDARD 10 To invoke diversity jurisdiction, a party must demonstrate there is complete 11 diversity of citizenship between the parties and that the amount in controversy exceeds 12 the sum or value of $75,000, exclusive of interest and costs.

. “The 13 burden of establishing federal jurisdiction is on the party invoking federal 14 jurisdiction.” United States v. Marks,

(9th Cir. 2008). “[W]here it is 15 unclear or ambiguous from the face of a state-court complaint whether the requisite 16 amount in controversy is pled… [t]he removing defendant bears the burden of 17 establishing, by a preponderance of the evidence, that the amount in controversy 18 exceeds” $75,000. Guglielmino v. McKee Foods Corp.,

(9th Cir. 19 2007) (citation omitted). 20 III. DISCUSSION 21 Because the amount in controversy is not clear from the face of the Complaint, 22 Subaru must show it exceeds $75,000. Guglielmino,

. Subaru fails to do 23 so. Luther v. Countrywide Home Loans Servicing LP,

(9th Cir. 24 2008) (“A defendant seeking removal has the burden to establish that removal is proper 25 and any doubt is resolved against removability.”) (citation omitted). 26 A. Actual Damages 27 Actual damages under the SBA are “equal to the actual price paid or payable by 28 the buyer,” minus the reduction in value “directly attributable to use by the buyer.” Cal. 1 Civ. Code § 1793.2(d)(2)(B)-(C). The reduction is based on miles driven before the first 2 attempted repair. Id. Subaru cites the $37,541.19 purchase price as Plaintiff’s actual 3 damages without accounting for finance charges, repair evidence, or anything else that 4 could allow the Court to estimate actual damages. Opp. 5-6. Subaru instead focuses on 5 the statutory offset’s purportedly low impact on actual damages, arguing that Plaintiff 6 fails to “state any number of miles to be used for a mileage offset…” Id. 5. This 7 contention ignores that it is Subaru’s burden to offer such evidence, not Plaintiff’s. 8 Marks,

. As Subaru offers no evidence of actual damages under the SBA 9 aside from purchase price, those damages are speculative. 10 B. Civil Penalties 11 The Complaint alleges Plaintiff is entitled to a civil penalty up to twice the 12 amount of actual damages under California Civil Code section 1794, which only applies 13 if violations are willful. Compl. PRAYER clause. Subaru cites no allegations or 14 evidence suggesting the type of willfulness required to justify civil penalties, let alone 15 has it demonstrated how much those penalties might be. Zawaideh v. BMW of North 16 America, LLC,

, at *2 (S.D. Cal. Apr. 17, 2018) (“Rather than simply 17 assume that because a civil penalty is available, one will be awarded, the defendant 18 must make some effort to justify the assumption by, for example, pointing to allegations 19 in the Complaint suggesting award of a civil penalty would be appropriate, and 20 providing evidence—such as verdicts or judgments from similar cases—regarding the 21 likely amount of the penalty.”). Plaintiff’s only allegations remotely inferring 22 willfulness are that Subaru intentionally declined to cure the Vehicle’s defects. Compl. 23 ¶¶ 23, 30, 37. Such a vague contention does not satisfy Subaru’s burden. Castillo v. 24 FCA USA, LLC,

, at *2 (S.D. Cal. Dec. 5, 2019) (remanding where 25 defendant provided no argument or evidence for including a civil penalty in the amount 26 in controversy); Sanchez v. Ford Motor Co.,

, at *2 (C.D. Cal. Dec. 27 4, 2018) (remanding where “Defendant has not offered any evidence to support” civil 28 penalties under the SBA); Lawrence v. FCA US LLC,

, at *4 (C.D. 1 Cal. Oct. 11, 2016) (SBA’s civil penalty not considered in amount in controversy due 2 to no “analogous verdicts or estimates about the amount”). 3 The Court rejects Subaru’s unfounded request that the Court accept its 4 “assumption” of maximum civil penalties. Opp. 4-5 (citing Park v. Jaguar Land Rover 5 N. Am., LLC,

, at *6 (S.D. Cal. July 1, 2020) (“Defendant's 6 assumption that the amount in controversy includes the maximum amount of civil 7 penalties is reasonable” because “this assumption is founded on the allegations of the 8 Complaint.”)). Unlike the defendant in Park, Subaru cites no evidence to support a civil 9 penalty twice the amount of actual damages.

, at *6 (higher civil 10 penalties assumed because vehicle cost $68,268.16 and complaint alleged plaintiff “is 11 entitled to a civil penalty of two times Plaintiff’s actual damages”). Subaru’s lack of 12 evidence supporting civil penalties is compounded by the uncertainty of actual 13 damages. Edwards v. Ford Motor Co.,

, at *4 (C.D. Cal. Nov. 4, 14 2016) (“However, as determined above, Defendant failed to establish the amount of 15 actual damages at issue, which is necessary to determine the total civil penalty. 16 Accordingly, the Court cannot determine the amount of any potential civil penalty 17 either.”). 18 The Court therefore cannot reliably determine the amount of civil penalties to 19 which Plaintiff may be entitled, if any. 20 C. Fees 21 “Section 1332(a)'s amount-in-controversy requirement excludes only ‘interest 22 and costs’ and therefore includes attorneys’ fees.” Guglielmino,

; 23 Fritsch v. Swift Transportation Co. of Arizona, LLC,

(9th Cir. 2018) 24 (“[A] court must include future attorneys' fees recoverable by statute or contract when 25 assessing whether the amount-in-controversy requirement is met”). Because Subaru 26 presents no substantive argument or evidence concerning fees, the Court has no basis 27 to include them in the amount in controversy. Eberle v. Jaguar Land Rover N. Am., 28 LLC,

, at *3 (C.D. Cal. Sept. 26, 2018) (“Courts have been reluctant 1 to estimate reasonably attorneys’ fees without knowing what the attorneys in the case 2 bill, or being provided with ‘evidence of attorneys’ fees awards in similar cases,’ and 3 have found information far more specific than this to be insufficient for the purposes of 4 including attorneys’ fees in the amount in controversy.”) (citations omitted). 5 IV. CONCLUSION 6 Because actual damages and fees are unknown, potential civil penalties are 7 speculative, and Subaru identifies no additional sums to which Plaintiff may be entitled, 8 Subaru has not shown that the amount in controversy exceeds $75,0000. 9 The Motion is therefore GRANTED and this action is REMANDED to the 10 Superior Court of California for the County of Ventura, No. 56-2021-00550149-CU- 11 BC-VTA. The Clerk of Court shall close the case. 12

13 IT IS SO ORDERED. 14

15 Dated: May 13, 2021 ________________________________ 16 MARK C. SCARSI 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28