Case 2:21-cv-09816-RGK-KS Document Filed 01/11/22 Page1of2 Page ID #:95 JS-6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 2:21-cv-09816-RGK-KS Date January 11, 2022 Title Eduardo Santa Cruz Sosa v. BMW of North America, LLC et al

Present: The Honorable R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE Sharon L. Williams Not Reported N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiff: Attorneys Present for Defendant: Not Present Not Present Proceedings: (IN CHAMBERS) Order Remanding Action to State Court

On November 17, 2021, Eduardo Santa Cruz Sosa (‘Plaintiff’) filed a complaint against BMW of North America, LLC (“Defendant”) in state court, alleging violations of the Song-Beverly Warranty Act. Plaintiff seeks damages, civil penalties, and attorneys’ fees and costs. Defendant removed the case to federal court on diversity jurisdiction grounds (

). (Notice of Removal, ECF No. 1.) Upon review of Defendant’s Notice of Removal, the Court hereby REMANDS the action for lack of subject matter jurisdiction. Title

(a) authorizes defendants to remove a case to federal court when the federal court would have had original jurisdiction over the case. Under

, district courts have original jurisdiction over any civil action in which the parties are citizens of different states, and the action involved an amount in controversy that exceeds $75,000. A defendant’s notice of removal must include a “plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co. v. Owens,

, 89 (2014). Here, Defendant does not plausibly allege that the amount in controversy exceeds the jurisdictional threshold. Defendant asserts that the “total payments under the Motor Vehicle Retail Installment Contract is $49,950.80” and attaches the contract in support. (Notice of Removal at 5;

Ex. C.) The contract indicates that $49,950.80 is the total sale price. (/d. at Ex. C.) While the Song- Beverly Warranty Act allows a plaintiff to recover the full purchase price of the car, this amount must be reduced to account for any use by plaintiff prior to the first repair of the vehicle. See Tokmakova v. Volkswagen Group of America, Inc.,

, at * 2-3. Further, a plaintiff’s recovery is limited to the actual payment amount to the seller. See Brady v. Mercedes-Benz USA, Inc.,

(N.D. Cal. 2002). Defendant does not indicate how many miles Plaintiff drove, nor the actual payment amounts made to the seller, leaving the Court with considerable doubt as to the amount in controversy. Accord Tokmakova,

, at *3.

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Case 2:21-cv-09816-RGK-KS Document15 Filed 01/11/22 Page2of2 Page ID #:96 JS-G UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 2:21-cv-09816-RGK-KS Date January 11, 2022 Title Eduardo Santa Cruz Sosa v. BMW of North America, LLC et al

Defendant also asserts that Plaintiff seeks civil penalties, and attorneys’ fees and costs. These penalties and costs, however, are speculative. As to civil penalties, while authorized under the Song- Beverly Act, Defendant has not alleged sufficient facts supporting such an award. As to attorneys’ fees, district courts within the Ninth Circuit are split with respect to including prospective attorneys’ fees in the amount in controversy, and some courts have declined to do so. See, e.g., MIC Philberts Invs. v. Am. Cas. Co of Reading, Pa.,

, at *5 (E.D. Cal. June 11, 2012). In those cases, the courts have found that attorneys’ fees are in the control of the client and counsel, and may be avoided or accrue over years depending on legal strategy. See Grieff v. Brigandi Coin Co.,

, at *3 (W.D. Wash. June 11, 2014). The Court finds those holdings well-reasoned and finds that prospective attorneys’ fees are too speculative to include in the amount in controversy. Therefore, the Court finds that Defendant has not plausibly alleged that the amount in controversy meets the jurisdictional requirement. Accordingly, the Court REMANDS this action to state court for all further proceedings.

IT IS SO ORDERED.

Initials of Preparer

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