Case 2:22-cv-01918-RGK-KS Document15 Filed 04/01/22 Page1lof2 Page ID #:60

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 2:22-cv-01918-RGK-KS Date April 1, 2022 Title Eduardo Santa Cruz Sosa v. BMW of North America, LLC et al

Present: The Honorable R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE Joseph Remigio 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 Dismissing Action for Lack of Subject Matter Jurisdiction On March 24, 2022, Eduardo Santa Cruz Sosa (“Plaintiff”) filed a complaint against BMW of North America, LLC (“Defendant”), alleging violations of the Song-Beverly Warranty Act. Plaintiff seeks damages, civil penalties, and attorneys’ fees and costs. Plaintiff invokes diversity jurisdiction (

). (Compl. § 2, ECF No. 1.) Upon review of the complaint, the Court hereby DISMISSES the action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 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. Here, Plaintiff fails to plausibly allege that the amount in controversy exceeds the jurisdictional threshold. Plaintiff alleges that the vehicle at issue “has an approximate value of $49,950.80.” (Compl. § 3.) The Motor Vehicle Retail Installment Contract, which Plaintiff attached to the complaint, also indicates that $49,950.80 is the total sales price. (Compl., Ex. A.) 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). Plaintiff does not allege 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. Plaintiff also 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, Plaintiff CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 2

Case 2:22-cv-01918-RGK-KS Document Filed 04/01/22 Page 2of2 Page |ID#:61

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 2:22-cv-01918-RGK-KS Date April 1, 2022 Title Eduardo Santa Cruz Sosa v. BMW of North America, LLC et al

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 Grieffv. 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 Plaintiff has not plausibly alleged that the amount in controversy ineets the jurisdictional requirement. Accordingly, the Court DISMISSES this action for lack of subject matter jurisdiction.

IT IS SO ORDERED.

Initials of Preparer jre/k

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