1 2 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RAYMOND GUTIERREZ, Case No. 2:21-cv-05679-MCS-JPR 11 Plaintiff, ORDER RE: MOTION TO REMAND 12 (ECF NO. 17) 13 v.

14 FORD MOTOR COMPANY; and 15 DOES 1 through 10, inclusive,

16 Defendants. 17

18 19 Plaintiff Raymond Gutierrez moves to remand this case to the Los Angeles 20 County Superior Court. (Mot., ECF No. 17-2.) Defendant Ford Motor Company 21 opposes the motion, and Plaintiff filed a reply brief. (Opp’n, ECF No. 19; Reply, ECF 22 No. 21.) The Court deems the matter appropriate for decision without oral argument. 23 Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15. The Court takes off calendar the hearing on 24 the motion set for October 4, 2021. 25 I. BACKGROUND 26 This is a case brought under the Song-Beverly Consumer Warranty Act (“SBA”). 27 Gutierrez bought a 2017 Ford Fusion (the “Vehicle”) in December 2017. The Vehicle 28 exhibited defects. Ford was unable to timely rectify the defects and refused to 1 repurchase the Vehicle or provide restitution. The Complaint seeks actual damages, 2 restitution, a civil penalty, consequential and incidental damages, costs of suit and 3 reasonable fees, rescission, punitive damages, and prejudgment interest. Gutierrez 4 submits that he suffered damages “in an amount not less than $25,001.00.” (See 5 generally Compl., ECF No. 1-2.) 6 Gutierrez initiated this proceeding in the Los Angeles County Superior Court, 7 No. 21STCV07199, naming Ford and Caruso Ford, the dealership, as defendants. 8 Asserting diversity jurisdiction, Ford removed the case after Gutierrez voluntarily 9 dismissed Caruso Ford, a nondiverse party. (Notice of Removal, ECF No. 1.) 10 II. LEGAL STANDARDS 11 A. Subject-Matter Jurisdiction 12 Federal courts are of limited jurisdiction, having subject-matter jurisdiction only 13 over matters authorized by the Constitution and Congress. Kokkonen v. Guardian Life 14 Ins. Co. of Am.,

(1994). A defendant may remove a civil action in 15 state court to federal court if the federal court has original jurisdiction. 28 U.S.C. 16 § 1441(a). Federal courts have original jurisdiction where an action arises under federal 17 law or where each plaintiff’s citizenship is diverse from each defendant’s citizenship 18 and the amount in controversy exceeds $75,000. Id. §§ 1331, 1332(a). 19 There is a “strong presumption” against removal jurisdiction, and the removing 20 party bears the burden of proving that removal is proper. Gaus v. Miles, Inc.,

(9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as 22 to the right of removal in the first instance.”

23 B. Amount in Controversy 24 To invoke diversity jurisdiction, a party must demonstrate there is complete 25 diversity of citizenship between the parties and that the amount in controversy exceeds 26 the sum or value of $75,000, exclusive of interest and costs.

(a). 27 “[W]here it is unclear or ambiguous from the face of a state-court complaint whether 28 the requisite amount in controversy is pled,” the removing defendant must establish by 1 a preponderance of the evidence that the amount in controversy “more likely than not” 2 exceeds $75,000. Guglielmino v. McKee Foods Corp.,

(9th Cir. 3 2007); Sanchez v. Monumental Life Ins. Co.,

(9th Cir. 1996). 4 III. DISCUSSION 5 The parties dispute whether the amount in controversy exceeds the jurisdictional 6 threshold. The amount in controversy is not clear from the face of the Complaint: 7 Gutierrez expressly pleads for damages “not less than $25,001.00,” but his prayer for 8 relief does not indicate whether the total amount he seeks exceeds $75,000. (Compl. 9 ¶¶ 14, Prayer.) Cf. Schneider v. Ford Motor Co.,

, 913 (N.D. Cal. 10 2020) (“[T]he Complaint alleges that Plaintiff suffered damages in a sum to be proven 11 at trial in an amount that is not less than $25,001.00. Hence, while Plaintiff seeks 12 restitution for the value of the car, civil penalties, and attorneys’ fees and costs, it is 13 unclear whether all these damages are subsumed within the request for $25,001.” 14 (internal quotation marks and citation omitted)). Thus, Ford must show by a 15 preponderance of the evidence that the amount in controversy more likely than not 16 exceeds $75,000. 17 A. Actual Damages 18 Actual damages under the SBA are “equal to the actual price paid or payable by 19 the buyer,” minus the reduction in value “directly attributable to use by the buyer.” Cal. 20 Civ. Code § 1793.2(d)(2)(B)–(C). The reduction is based on miles driven before the 21 first attempted repair of the defect. Id. 22 Ford submits three alternative calculations of actual damages: (1) the entire 23 contract price, $29,663.46, because Gutierrez seeks the entire contract price of the 24 Vehicle as a remedy; (2) the contract price less a mileage offset based on Gutierrez’s 25 first visit to a Ford dealership for “weird drips in paint,” $25,583.14; and (3) the contract 26 price less a mileage offset based on Gutierrez’s second visit to a Ford dealership for 27 repair of a defect of which he complains, $24,408.10. (Opp’n 9–13; see also Mortenson 28 Decl. Ex. 2, ECF No. 19-3 (stating contract price); Mortenson Decl. Ex. 3, ECF No. 19- 1 4 (detailing claim history).) 2 Ford fails to meet its burden to show any of these calculations are appropriate. 3 As Gutierrez explains, he complains of numerous defects, and he presented the Vehicle 4 for repair of those defects on several occasions. (Reply 8 (citing Compl. ¶ 11).) Ford 5 does not present evidence indicating why the contract price need not be offset by 6 Gutierrez’s use, as required by the SBA, or why the mileage offset should be based on 7 the first visit to remedy an issue of which Gutierrez has not complained. Perhaps a 8 mileage offset based on the second visit might be appropriate, but Ford does not adduce 9 evidence showing why the mileage offset should be calculated based on that visit 10 instead of Gutierrez’s subsequent visits to fix other complained-of defects. If based on 11 a later visit, the mileage offset would significantly diminish the measure of actual 12 damages. (See Mortenson Decl. Ex. 3 (indicating Gutierrez sought repair of the Vehicle 13 when the odometer read 504, 5,993, 15,332, 24,634, and 34,537 miles).) Ford fails to 14 show by a preponderance of the evidence that no mileage offset, or a mileage offset 15 based on the first or second repair visit, provides the proper measure of actual damages. 16 At best, Ford’s calculations of actual damages are speculative and self-serving. 17 B. Civil Penalties 18 Gutierrez may be entitled to a civil penalty no greater than twice the amount of 19 actual damages only if Ford’s violations were willful.

(c). 20 However, in the jurisdictional analysis, “[t]he civil penalty . . . cannot simply be 21 assumed”; instead, “the defendant must make some effort to justify the assumption.” 22 D’Amico v. Ford Motor Co., No. CV 20-2985-CJC (JCx),

90921, at *8 (C.D. Cal. May 21, 2020) (internal quotation marks omitted) (collecting 24 cases). Courts do not include civil penalties in the jurisdictional analysis “unless the 25 removing defendant makes some showing regarding the possibility of civil damages.” 26 Savall v. FCA US LLC, No. 21cv195 JM (KSC),

, at *7– 27 8 (S.D. Cal. Apr. 28, 2021) (collecting cases). 28 / / / 1 The Complaint alleges Gutierrez is entitled to a civil penalty. (E.g., Compl. 2 ¶¶ 15–16, 22, 25, 29, Prayer.) In support of its argument that the maximum civil penalty 3 should factor into the amount in controversy, Ford points to Gutierrez’s allegations of 4 willful conduct. (Opp’n 13–14.) But Ford presents no evidence that a civil penalty is 5 likely to be awarded in this case, let alone evidence justifying the maximum penalty. 6 See, e.g., Savall,

, at *8 (“Other than referring to 7 Plaintiff’s allegation that FCA acted willfully, however, FCA provides no support for 8 the likelihood that a civil penalty based on its willfulness would actually be awarded in 9 this case, or that the full civil penalty would be awarded. . . . If such boilerplate 10 allegations [in a complaint] were sufficient to defeat remand, then virtually any [SBA] 11 action involving a new vehicle purchase would remain in federal court.”); Chajon v. 12 Ford Motor Co., No. 2:18-cv-10533-RGK (RAOx),

, at 13 *3–4 (C.D. Cal. Jan. 8, 2019) (“As to civil penalties, while authorized under the Song- 14 Beverly Act, Defendants have not offered any evidence to support such an award.”). 15 Even if Ford could support its argument for a civil penalty with evidence, because 16 Ford fails to establish actual damages beyond speculation, Ford fails to show the proper 17 measure of the civil penalty. See Edwards v. Ford Motor Co., No. CV 16-05852 BRO 18 (PLAx),

, at *14 (C.D. Cal. Nov. 4, 2016) (“Defendant 19 failed to establish the amount of actual damages at issue, which is necessary to 20 determine the total civil penalty.”); cf. D’Amico,

, at *9 21 (“[T]here is no basis for concluding that the amount payable under the lease even 22 roughly approximates Plaintiff's actual damages. There is equally little basis for 23 concluding that a civil penalty of double that amount would be awarded.”). 24 C. Fees 25 “Section 1332(a)’s amount-in-controversy requirement excludes only ‘interest 26 and costs’ and therefore includes attorneys’ fees.” Guglielmino,

; Fritsch 27 v. Swift Transp. Co. of Ariz., LLC,

(9th Cir. 2018) (“[A] court must 28 include future attorneys’ fees recoverable by statute or contract when assessing whether 1 the amount-in-controversy requirement is met.”). 2 Ford offers fee requests by Gutierrez’s counsel in prior SBA cases in support of 3 its counsel’s estimate that fees here likely will exceed $50,000. (Opp’n 17–18; see also 4 Mortenson Decl. ¶ 7, ECF No. 19-1.)1 Neither Ford nor its counsel provides an 5 explanation substantiating why this case will generate fees in that amount. Gutierrez’s 6 counsel submitted each of the fee requests Ford highlights after the parties expended 7 significant time and resources litigating the dispute. Chism v. FCA US, LLC, No. CV 8 19-9082 FMO (PJWx),

(C.D. Cal. Feb. 16, 2021) 9 (reviewing fee motion upon acceptance of Rule 68 offer after nearly two years of 10 litigation); Jurosky v. BMW of N. Am., LLC, No. 19cv706 JM (BGS), 2020 U.S. Dist.

(S.D. Cal. Aug. 25, 2020) (same); Forouzan v. BMW of N. Am., LLC, 12 No. CV 17-3875-DMG (GJSx),

(C.D. Cal. Jan. 11, 2019) 13 (evaluating post-trial fee motion); Zomorodian v. BMW of N. Am., LLC, No. CV 17- 14 5061-DMG (PLAx),

(C.D. Cal. July 23, 2019) (same). 15 Ford “provides no explanation for why this case is similar to ones that went to trial.” 16 D’Amico,

, at *10–11; accord Schneider,

at 914 (“All that Defendants claim is that the same counsel appears in each case and 18 that the subject-matter of the cases are the same. They do not, however, compare or 19 contrast the litigation strategies or the litigation timelines of the two cases.” (citation 20 omitted)). Even if requests in prior cases present competent evidence of counsel’s rates, 21 they do not provide probative evidence of the hours that might reasonably be expended 22 in this case. Cf. Schneider, 441 F. Supp. 3d at 914 (finding burden unmet where 23 “Defendants fail to provide the Court with specific evidence showing the attorneys’ fees 24 in this case are ‘more likely than not’” to bring the amount in controversy above the 25 jurisdictional threshold); D’Amico,

, at *11 (finding 26

27 1 The Court overrules Plaintiff’s objections to this declaration. (Evid. Objs., ECF No. 28 21-1.) 1 burden unmet where defendant failed to “provide an estimate of the hours that will be 2 incurred”). 3 D. Punitive Damages 4 Ford briefly argues in a footnote that Gutierrez’s request for punitive damages 5 should also be taken into account. (Opp’n 18 n. 5.) Ford presents no evidence from 6 which the Court may divine an estimate of punitive damages. 7 E. Summary 8 The amount in controversy is not clear from the face of the Complaint. Ford fails 9 to present evidence establishing beyond speculation that the amount in controversy 10 exceeds $75,000. Accordingly, Ford has not shown the Court has subject-matter 11 jurisdiction over the case. Remand is appropriate.

(c). 12 IV. CONCLUSION 13 The Court grants the motion. The case is remanded to the Los Angeles County 14 Superior Court, No. 21STCV07199. The Court directs the Clerk to effect the remand 15 and close the case. 16

17 IT IS SO ORDERED. 18

19 Dated: September 27, 2021 ________________________________ 20 MARK C. SCARSI 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28