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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 JACQUELINE PERRY, Case No. 2:24-cv-03197-WLH-MAR 11 Plaintiff, ORDER RE MOTION FOR 12 REMAND AND AWARD OF COSTS 13 v. A FRN OD M E X RP EE MN OSE VS A R L E [1S 2U ] LTING

14 FORD MOTOR COMPANY, a Delaware Corporation, and DOES 1

15 through 10, inclusive,

16 Defendants.

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19 Before the Court is Plaintiff Jacqueline Perry’s (“Perry”) Motion for Remand and 20 Award of Costs and Expenses Resulting From Removal (the “Motion”, Docket No. 12). 21 As set forth below, the Motion is GRANTED. 22 I. BACKGROUND 23 On May 25, 2019, Perry purchased a 2016 Ford Explorer (the “Subject Vehicle”) 24 for $45,649.20 and entered into a warranty agreement with Defendant Ford Motor 25 Company (“Ford”). (Notice of Removal, Ex. A (“Compl.”), Docket No. 1-2 ¶¶ 7, 15). 26 Perry alleges that “[d]efects and nonconformities to warranty manifested themselves 27 within the applicable express warranty period” that “substantially impaired the use, 28 1 value and/or safety of the Subject Vehicle.” (Id. ¶ 16). Perry alleges that she brought 2 the Subject Vehicle to one of Ford’s authorized repair facilities, but that Ford “was 3 unable to conform the Subject Vehicle to the applicable express warranty after a 4 reasonable number of repair attempts.” (Id. ¶¶ 17–18). 5 On May 16, 2023, Perry filed this action in Los Angeles Superior Court, asserting 6 two claims against Ford for violations of the Song-Beverly Act. (See generally id.). 7 Perry asserts in the Complaint that the purchase price of the Subject Vehicle was 8 $45,649.20 and that she seeks “a civil penalty up to two times the amount of actual 9 damages” for Ford’s alleged violations. (Id. ¶¶ 15, 25, 37). Perry served, and Ford 10 received, the Complaint on May 30, 2023. (Notice of Removal, Docket No. 1 ¶ 6). 11 On October 19, 2023, in response to Ford’s written discovery requests, Perry 12 served verified responses including document production. (Notice of Removal, Ex. C, 13 Docket No. 1-4 at 72). Those documents included a copy of the Retail Sale Installment 14 Contract, which confirmed the Complaint’s allegation that the purchase price of the 15 Subject Vehicle was $45,649.20. (Id.). 16 On April 10, 2024, Perry served her first set of responses to Ford’s Special 17 Interrogatories. (Decl. of Amy Maclear in Supp. of Def.’s Notice of Removal (“Maclear 18 Decl.”), Docket No. 1-1 ¶ 14). In her responses, Perry once again stated that the 19 purchase price of the Subject Vehicle was $45,649.20. (Id.). Ford asserts that the next 20 day—April 11, 2024—Perry “demanded in excess of $75,000, not including any 21 attorney’s fees, to resolve this case.” (Id. ¶ 15). 22 On April 18, 2024, Ford removed the action to this Court on the basis of diversity 23 jurisdiction. (Notice of Removal). In a declaration in support of the Notice of Removal, 24 Ford’s counsel incorrectly states that “Plaintiff’s Complaint is silent as to the amount 25 Plaintiff paid for the subject vehicle.” (Maclear Decl. ¶ 12). Ford asserts in the Notice 26 of Removal that its removal is timely because it was made “within 30 days after receipt 27 by the defendant, through service or otherwise, of a … paper from which it may first be 28 ascertained that the case is one which is or has become removable.” (Notice of Removal 1 ¶ 8 (citing

(b)(3)). Ford also states in the Notice of Removal that “[i]f 2 Perry were to prevail on her Song-Beverly Act claims, she could be awarded well over 3 $75,000” because “Plaintiff alleges actual damages of at least $45,649.20 (the purchase 4 price of her vehicle), and could be awarded up to twice that amount in civil penalties, 5 for a total amount in controversy of $136,947.201 based on these factors alone.” (Id. 6 ¶ 28). 7 Perry filed the instant Motion on May 17, 2024. She seeks remand of the action 8 to the Superior Court and an award of attorney’s fees and costs associated with the 9 Motion. 10 II. DISCUSSION 11 A. Remand 12 In general, “any civil action brought in a State court of which the district courts 13 of the United States have original jurisdiction, may be removed by the defendant or 14 defendants, to the district court[.]”

(a). The removing party has the 15 burden to show that removal is proper. See, e.g., Abrego Abrego v. The Dow Chem. 16 Co.,

(9th Cir. 2006) (per curiam) (“[T]he burden on removal rests 17 with the removing defendant.”). If at any time before final judgment it appears that the 18 district court lacks subject matter jurisdiction, the case “shall be remanded.” 28 U.S.C. 19 § 1447(c). 20 With respect to the timing of removal, “[t]here are two different potential … 21 deadlines.” Isabelle Franklin, et al. v. Healthsource Global Staffing, Inc., et al., No. 22 23-CV-0662-AGS-DEB,

, at *2 (S.D. Cal. Mar. 11, 2024). “The first 23 and most common pathway is where the basis for removal is clear from the complaint 24 or other initial pleading.” Givens v. Lawson, No. 3:22-CV-00772-YY,

4586250, at *2 (D. Or. Aug. 30, 2022), report and recommendation adopted, No. 3:22- 26 CV-00772-YY,

(D. Or. Sept. 27, 2022)); see also 28 U.S.C. 27

28 1 This figure should be $136,947.60. 1 § 1446(b)(1). “If an initial pleading is not removable on its face, then the first 30-day 2 period for removal is not triggered.” Avina v. Ford Motor Co., No. CV 23-10573-PA- 3 E,

, at *2 (C.D. Cal. Feb. 20, 2024). 4 The second potential deadline for removal is triggered after “the defendant 5 received ‘an amended pleading, motion, order or other paper’ from which it can be 6 ascertained from the face of the document that removal is proper.” Harris, 425 F.3d at 7 694 (quoting

(b)(3)). This clock for the second removal deadline 8 begins running upon “‘defendant’s receipt of a document from the plaintiff or the state 9 court—not by any action of defendant.’” Solis v. Nissan N. Am. Inc., No. CV 24-00728- 10 MWF (EX),

, at *2 (C.D. Cal. Mar. 27, 2024) (quoting Franklin, 11

, at *2). 12 The Ninth Circuit has held that “[w]hile § 1446(b)(1) requires only a pleading 13 that ‘set[s] forth’ a ground for removal to start the removal clock under the first 14 pathway, § 1446(b)(3)’s second pathway requires an amended pleading, motion, order, 15 or other paper from which a ground for removal may be ‘ascertained.’” Dietrich v. 16 Boeing Co.,

(9th Cir. 2021) (quoting

(b)(1), (3)) 17 (alterations in Dietrich). “‘Set forth’ means only to ‘give an account or statement of,’” 18 while “‘[a]scertain’ means ‘to find out or learn with certainty.’”

(citations omitted). 19 “The latter, in contrast to the former, seems to require a greater level of certainty or that 20 the facts supporting removability be stated unequivocally.”

(citation and quotations 21 omitted). 22 Beyond those two deadlines, a defendant may remove a case where it “‘could 23 have’ demonstrated removability earlier based on its knowledge beyond the pleadings.” 24 Kuxhausen v. BMW Fin. Servs. NA LLC,

, 1141 n.3 (9th Cir. 2013). It is 25 not, however, “‘obligated to do so.’”

26 Here, Ford incorrectly states in both its Notice of Removal and Opposition to the 27 Motion that Perry’s Complaint did not allege the amount Perry paid for the Subject 28 Vehicle. (See, e.g., Opp’n to Notice of Removal at 4). For her part, Perry herself states 1 in the Motion that “[t]he Complaint does not state any specific amount of damages at 2 issue, but demands relief according to California statutes.” (Mot. at 3). Since both 3 parties appear not to have noticed that the purchase price of the Subject Vehicle was 4 alleged in the Complaint, their arguments focus on whether the amount in controversy 5 was “ascertainable” from Perry’s October 19, 2023, production of the Retail Sale 6 Installment Contract containing the purchase price, and thus whether the 30-day 7 deadline to remove was triggered on that day. Predictably, Perry argues that the amount 8 in controversy was ascertainable from that contract, while Ford argues that it was not 9 ascertainable until April of 2024, when Perry served interrogatory responses stating the 10 purchase price of the Subject Vehicle and made a demand in excess of $75,000. 11 The Court need not reach the question of whether Perry’s production of the Retail 12 Installment Contract made the amount in controversy “ascertainable,” however, 13 because Perry stated both the purchase price of the Subject Vehicle and the request for 14 civil penalties in her Complaint. The lower standard of § 1446(b)(1), which requires 15 only that the initial pleading “set forth” ground for removal, therefore applies here. 16 The Court finds Perry did set forth the ground for removal in her Complaint by 17 alleging (1) that the purchase price of the Subject Vehicle was $45,649.20 and (2) that 18 she seeks “a civil penalty up to two times the amount of actual damages” for Ford’s 19 alleged violations of the Song-Beverly Act. The Ninth Circuit has held that 20 § 1446(b)(1) “requires a defendant to apply a reasonable amount of intelligence in 21 ascertaining removability” and that “multiplying figures clearly stated in a complaint is 22 an aspect of that duty.” Kuxhausen,

(citation and quotations omitted). 23 Ford only needed to do simple multiplication based on the Complaint to determine the 24 amount in controversy exceeded $75,000. Indeed, in the Notice of Removal, Ford bases 25 its calculations of the amount in controversy on the purchase price of the Subject 26 Vehicle ($45,649.20) and Perry’s prayer for two times civil damages, for a total of 27 amount in controversy of almost $137,000. All of the information upon which Ford 28 based this calculation was set forth in Perry’s Complaint. 1 Because Perry adequately set forth a ground for removal in her Complaint, the 2 30-day deadline began to run when Ford received the Complaint on May 30, 2023. 3 Ford’s removal of this action on April 18, 2024, was 294 days late, so the action must 4 be remanded. 5 B. Attorney’s Fees 6 Perry seeks an award of costs and attorney’s fees in connection with bringing this 7 Motion. Ford makes no argument that an award of attorney’s fees and costs would be 8 inappropriate. (See generally Opp’n). Under

(c), “[a]n order 9 remanding the case may require payment of just costs and any actual expenses, 10 including attorney fees, incurred as a result of the removal.” A court need not find the 11 removing party acted in bad faith in order to award costs and fees against it. Moore v. 12 Permanente Med. Grp., Inc.,

, 446 (9th Cir. 1992). Rather, “the standard 13 for awarding fees should turn on the reasonableness of the removal.” Martin v. Franklin 14 Cap. Corp.,

(2005). “Absent unusual circumstances, courts may 15 award attorney’s fees under § 1447(c) only where the removing party lacked an 16 objectively reasonable basis for seeking removal.” Id. “[T]he degree of clarity in the 17 relevant law at the time of removal is a relevant factor in determining whether a 18 defendant’s decision to remove was reasonable.” Grancare, LLC v. Thrower by & 19 through Mills,

(9th Cir. 2018). 20 The Court awards costs and attorney’s fees to Perry because Ford’s removal of 21 the action was objectively unreasonable. The law was clear when Ford removed this 22 action that Ford was responsible for “applying a reasonable amount of intelligence in 23 ascertaining the amount in controversy,” including “multiplying figures expressly 24 alleged” in the Complaint; in fact, Ford cites that very standard in its Opposition to the 25 Motion. (Opp’n at 6 (citing Kuxhausen,

)). Though this was likely an 26 honest mistake rather than an indication of bad faith, removal was still unreasonable as 27 contrary to established law. 28 1 Moreover, while Perry committed the same oversight in drafting this Motion, 2 | Perry’s oversight is excusable because Ford’s counsel stated in a sworn declaration 3 | supporting the Notice of Removal that the Complaint was “silent as to the amount 4 | Plaintiff paid for the subject vehicle,” and the Notice of Removal relied on that 5 || statement in arguing removal was warranted. It is understandable that Perry would rely 6 | on this misstatement by Ford’s counsel when, almost a year after filing the Complaint, 7 | Perry drafted this Motion and addressed Ford’s contentions in its Notice of Removal. 8 Because Ford’s removal of this action was objectively unreasonable, the Court 9 | finds good reason to award attorney’s fees and costs to Perry. Perry shall present her 10 | application for such fees to the state court for approval within ten days after this matter 11 | has been returned to that court. 12 | Il. CONCLUSION 13 For the foregoing reasons, the Motion to Remand is GRANTED. This action 14 | shall be remanded to the Superior Court of the State of California for the County of 15 | Los Angeles. 16 The Clerk is directed to close this file. 17 18 IT IS SO ORDERED. 19 20 | Dated: August 20, 2024 4a Se 1 HON. WESLEY L. HSU UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28