1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN WEST, ) Case No.: 1:24-cv-00293 JLT CDB ) 12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S MOTION TO ) REMAND 13 v. ) ) (Doc. 6) 14 FCA US LLC, and DOES 1 through 20, inclusive, ) 15 ) ) 16 Defendants. ) ) 17 18 Steven West seeks to hold FCA US LLC liable for breach of implied and express warranties 19 under California’s Song-Beverly Act resulting from his lease of a defective Jeep Wrangler. (See 20 generally Doc. 1-1.) Defendant removed the case to this Court based upon an allegation of diversity 21 jurisdiction. (Doc. 1.) Before the Court is Plaintiff’s fully briefed motion to remand. (Doc. 6.) For the 22 reasons set forth below, the motion is GRANTED. 23 I. Background and Procedural History 24 On August 27, 2018, Plaintiff leased a 2018 Jeep Wrangler from Defendant. (Doc. 1-1 ¶ 5; Doc. 25 1-4 at 7-8.) As part of the lease, Plaintiff alleges he received express and implied warranties including, 26 inter alia, that the Vehicle would “be free from all defects in material and workmanship” and “conform 27 to the promises and affirmations of fact made.” (Doc. 1-1 at 6-7 ¶ 7.) According to Plaintiff, he 28 delivered the Vehicle to Defendant’s authorized service facilities for repair of “defects, malfunctions, 1 misadjustments, and/or nonconformities” on at least eight occasions. (Id. at 8 ¶ 10.) He contends the 2 defects continue to exist and thus, Defendant has “failed to conform the Vehicle to the applicable 3 warranties ... even after a reasonable number of attempts to repair was given.” (Id. at 8-9 ¶ 13.) Plaintiff 4 further alleges Defendant “intentionally failed and refused” to comply with his demands for 5 replacement or restitution. (Id. at 11 ¶ 21.) 6 On February 1, 2024, Plaintiff filed a complaint in Kern County Superior Court, Case No. 7 BCV-24-100362. (Doc. 1-1.) He seeks to hold Defendant liable for breach of implied and express 8 warranties under California’s Song-Beverly Act. (Id. at 5.) The complaint does not indicate a specific 9 damages figure but alleges that the amount in controversy exceeds $35,000. (See id. at 9 ¶ 14.) The 10 prayer for relief includes judgment for: (1) “replacement or restitution, at Plaintiff’s election, 11 according to proof;” (2) incidental damages; (3) consequential damages; (4) a civil penalty “in an 12 amount not to exceed two times the amount of” actual damages; (5) attorneys’ fees; (6) costs and 13 expenses; (7) “the difference between the value of the Vehicle as accepted and the value the Vehicle 14 would have had if it had been as warranted;” (8) “remedies provided in Chapters 6 and 7 of Division 2 15 of the Commercial Code;” (9) pre-judgement interest; and (10) “[s]uch other relief the Court deems 16 appropriate.” (Id. at 14.) 17 On March 8, 2024, Defendant filed a Notice of Removal, asserting this Court has diversity 18 jurisdiction pursuant to

, 1441, and 1446. (Doc. 1.) Defendant is a limited liability 19 company and none of its members are residents of California. (Id. at 6 ¶¶ 18-20.) The parties dispute 20 Plaintiff’s domicile for purposes of establishing complete diversity. (See

; Doc. 6 at 11.) 21 Defendant maintains that Plaintiff seeks actual damages, a double civil penalty, and attorneys’ fees, 22 the sum of which exceeds $75,000 and thus, that the amount in controversy requirement for diversity 23 jurisdiction is satisfied. (Doc. 1 at 9-11 ¶¶ 29-33.) In calculating actual damages, Defendant relies 24 upon Plaintiff’s allegation that the amount in controversy “exceeds $35,000.00.” (Doc. 18 at 5-9.) 25 Alternatively, Defendant calculates actual damages based on the lease price as provided in the parties’ 26 Lease Agreement. (See, e.g., Doc. 1 at 9-10 ¶¶ 28, 32; Doc. 1-4 at 3 ¶ 8; Doc. 18-1 at 2 ¶¶ 3-4.)1 27

28 1 1 On April 26, 2024, Plaintiff filed a motion to remand this action to Kern County Superior 2 Court, asserting removal was improper and Defendant fails to establish diversity jurisdiction. (Doc. 6.) 3 Defendant filed its opposition, (Doc. 18), to which Plaintiff replied. (Doc. 19.) 4 II. Legal Standard 5 A defendant may remove a civil action under

from state to federal district 6 court so long as jurisdiction originally would lie in federal court.

(a). District courts 7 have original jurisdiction over civil actions between citizens of different states where the amount in 8 controversy exceeds $75,000, exclusive of interest and costs.

(a). When a party 9 removes a case to federal court under

, that party bears the burden of showing that 10 jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994); Gaus v. 11 Miles, Inc.,

(9th Cir. 1992). “[A]ny doubt about the right of removal requires 12 resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc.,

(9th Cir. 13 2009) (citing Gaus,

). 14 III. Discussion and Analysis 15 Plaintiff argues that remand is appropriate because the potential recovery amounts relied on by 16 Defendant are too speculative to satisfy the threshold for diversity jurisdiction. (Doc. 6 at 5.) 17 Specifically, Plaintiff asserts that Defendant relies on a speculative maximum civil penalty calculation, 18 as it is based on an equally “speculative and unsubstantiated” calculation of actual damages. (Id. at 6- 19 7.) He also contends that Defendant’s anticipated attorneys’ fees are too speculative to include towards 20 the amount in controversy. (Id. at 7.) Finally, Plaintiff contends that comity principles weigh in favor 21 of remand and that Defendant fails to show that complete diversity exists. (Id. at 8-11.) Defendant 22 opposes remand, arguing that it can meet its burden to show the amount in controversy requirement is 23 satisfied. (Doc. 18.) 24 A. Amount in Controversy 25 The amount in controversy is “an estimate of the total amount in dispute, not a prospective 26 assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc.,

(9th Cir. 27 2010). In evaluating the amount in controversy in a case, courts first “consider whether it is facially 28 apparent from the complaint that the jurisdictional amount is in controversy.” Abrego Abrego v. The 1 Dow Chem. Co.,

(9th Cir. 2006) (quoting Singer v. State Farm Mut. Auto. Ins. Co., 2

(9th Cir. 1997)). 3 When the plaintiff’s complaint “does not contain any specific amount of damages sought, the 4 party seeking removal under diversity bears the burden of showing, by a preponderance of the 5 evidence, that the amount in controversy exceeds the statutory amount.” Lewis,

(citing 6 Guglielmino v. McKee Foods Corp.,

(9th Cir. 2007)). The notice of removal must 7 include “a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” 8 Dart Cherokee Basin Operating Co., LLC v. Owens,

, 89 (2014). If the plaintiff challenges 9 this allegation, “both sides submit proof and the court decides, by a preponderance of the evidence, 10 whether the amount-in-controversy requirement has been satisfied.”

. This proof can include 11 affidavits, declarations, or other “summary-judgment-type evidence relevant to the amount in 12 controversy at the time of removal.” Ibarra v. Manheim Investments, Inc.,

(9th 13 Cir. 2015) (quoting Singer,

); see also Valdez v. Allstate Ins. Co.,

, 1117 14 (9th Cir. 2004) (courts consider “facts presented in the removal petition as well as any summary- 15 judgment-type evidence relevant to the amount in controversy at the time of removal.”) (quotation 16 marks omitted). 17 1. Face of the complaint 18 Defendant first contends it is evident from the face of the complaint that the amount in 19 controversy requirement is satisfied because the complaint alleges that Plaintiff “suffered damages in a 20 sum to be proven at trial in an amount that is not less than $35,00.00 [sic].”2 (Doc. 18 at 5-6.) Because 21 Plaintiff also seeks “incidental, consequential, and exemplary damages,” along with a civil penalty of 22 up to two times the amount of actual damages, Defendant asserts that these allegations alone meet the 23 amount in controversy threshold “without even considering attorneys’ fees.” (Id. at 5; see also

at 8 24

25 2 Paragraph 14 states: 26 The amount in controversy exceeds THIRTY-FIVE THOUSAND DOLLARS ($35,000.00), exclusive of interest and costs, for which Plaintiff seeks judgment 27 against Defendants, together with equitable relief. In addition, Plaintiff seeks damages from Defendants, and each of them, for incidental, consequential, exemplary, and 28 actual damages including interest, costs, and actual attorneys’ fees. 1 [“Plaintiff alleged a minimum of $35,000 in actual damages, exclusive of attorney fees. There is thus a 2 minimum of $105,000 in controversy.”]; Doc. 1-1 at 9 ¶ 14.) Plaintiff asserts that the only purpose for 3 including this allegation was to establish that “the amount in controversy meets the requirement for 4 this case to be considered an unlimited civil case in the Superior Court of California. It is merely a 5 statement that the total amount in controversy is over $35,000.00, and then a summary of the damages 6 sought by Plaintiff.” (Doc. 19 at 5.) 7 California district courts are split on whether a defendant can rely on generic damages 8 allegations to establish actual damages. For example, the Central District of California has held where 9 the plaintiff lists damages separately from penalties in the complaint, the court can assume that sums 10 referred to as “damages” mean actual damages. Frank v. FCA US LLC,

, at **3-4 11 (C.D. Cal. June 15, 2020); see also Coronel v. Ford Motor Co.,

, at *6 (C.D. Cal. 12 Feb. 4, 2020) (finding amount in controversy met where the complaint stated plaintiff suffered 13 damages “not less than $25,001.00” and sought civil penalties and punitive damages). Other courts 14 require additional evidence to equate generic assertions of damages to “actual” damages. Mullin v. 15 FCA,

, at *3 (C.D. Cal. May 14, 2020) (finding defendant’s reliance on the 16 complaint’s statement that plaintiff “suffered damages … not less than $25,001.00” did not satisfy 17 defendant’s burden to show actual damages); see also Cox v. Kia Motors Am., Inc.,

5814518, at **3-4 (N.D. Cal. Sept. 30, 2020) (finding amount in controversy not shown by 19 preponderance of the evidence where defendant submitted the sale contract containing the vehicle 20 purchase but did not account for the statutory offset and therefore, “failed to establish either the 21 amount of actual damages or the maximum recoverable civil penalties”). 22 Faced with a similar set of arguments and facts, this District has also looked to additional 23 evidence, rather than the complaint alone, to determine the amount in controversy. Quinonez v. FCA 24 US LLC,

, at **2-3 (E.D. Cal. June 19, 2020). In Quinonez, the complaint contained 25 identical language to the complaint here: the plaintiff listed actual damages among the other forms of 26 relief and separately stated the amount in controversy exceeds $25,000.

Defendant argued the 27 complaint’s separate list of damages indicated that the $25,000 did not encompass all types of 28 damages but rather only actual damages.

Plaintiff argued the opposite.

The court looked to the 1 purchase agreement of the vehicle, showing its sales price of $31,500, to guide the interpretation of the 2 damages sum stated in the complaint.

Given the closeness between the sales price ($31,500) and 3 the stated sum ($25,000), particularly in light of a potential statutory offset, the sales price indicated 4 that the stated sum in the complaint corresponded to actual damages.

5 Because courts should “strictly construe the removal statute against removal jurisdiction,” 6 Gaus,

, and because defendants bear the burden on removal to satisfy the jurisdictional 7 requirements, the Court finds the Defendant’s reliance on the allegation in the complaint alone does 8 not sufficiently establish that the $35,000 encompasses only actual damages. Although Defendant’s 9 interpretation of the complaint is plausible, it is equally plausible that Plaintiff’s allegation that the 10 amount in controversy “exceeds $35,000.00” is inclusive of actual damages, civil penalties, attorneys’ 11 fees, and other types of relief sought. See Sood v. FCA US, LLC,

, at *3 (C.D. Cal. 12 Oct. 14, 2021) (“Plaintiffs may very well have included the $25,001 figure only to clarify that the total 13 amount in controversy qualifies the case as unlimited in California courts, and not to establish a 14 minimum amount of actual damages to be recovered.”); see also Schneider v. Ford Motor Co.,

Supp. 3d 909, 913 (N.D. Cal. 2020) (“[T]he Court could just as easily infer that the $25,001 refers to 16 Plaintiff’s total damages. This lack of clarity forecloses Defendants’ argument that the $25,001 ‘more 17 likely than not’ satisfies the federal jurisdictional amount.”) (emphasis in original). Therefore, the 18 Court must determine if Defendant has shown by a preponderance of the evidence that the amount in 19 controversy exceeds $75,000. Lewis,

. 20 2. Preponderance of the evidence 21 a. Actual damages 22 Under the Song-Beverly Act, actual damages include “restitution in an amount equal to the 23 actual price paid or payable by the buyer,” less “the amount directly attributable to use by the buyer 24 prior to the time the buyer first delivered the vehicle to the manufacturer or distributor.” Cal. Civ. 25 Code § 1793.2(d)(2)(B)-(C). The Act also applies to leases of consumer goods. Id. § 1795.4; see also 26 id. § 1793.2(d)(2)(D) (specifying that “a buyer of a new motor vehicle shall also include a lessee of a 27 new motor vehicle”). 28 Generally, courts do not reduce the amount in controversy by affirmative defenses, 1 counterclaims, and potential offsets. St. Paul Mercury Indem. Co. v. Red Cab Co.,

, 289 2 (1938) (holding “fact that the complaint discloses the existence of a valid defense to the claim” cannot 3 be grounds for showing failure to surmount amount-in-controversy threshold). However, with respect 4 to the amount attributable to the buyer’s use of the vehicle under California Civil Code 5 § 1793.2(d)(2)(C), the Ninth Circuit has held that this “use offset” should be included in determining 6 the jurisdictional amount. Schneider v. Ford Motor Co.,

, 701 (9th Cir. 2018). The 7 “use offset” amount is determined by multiplying the “actual price of the new motor vehicle paid or 8 payable by the buyer … by a fraction having its denominator 120,000 and having as its numerator the 9 number of miles traveled by the new motor vehicle prior to the time the buyer delivered the vehicle” 10 for correction of the problem.

(d)(2)(C). 11 Defendant argues it can demonstrate that the amount in controversy “more likely than not” 12 exceeds the jurisdictional threshold, even after taking into account Plaintiff’s use of the Vehicle. (Doc. 13 18 at 9-10.) However, a review of the relevant papers reveals that Defendant either did not deduct a 14 use offset or otherwise relied on conflicting calculations, preventing the Court from discerning which 15 of the various figures Defendant relies upon.3 Notwithstanding, under any calculation of actual 16 17 3 For example, with respect to the lease price, the California Motor Vehicle Lease Agreement indicates the total amount payable on the Vehicle was $22,921.34. (Doc. 1-4 at 7.) Defendant’s Notice of Removal and attached declaration of former 18 attorney of record, Matthew M. Proudfoot, are consistent with this amount. (See Doc. 1 at 9 ¶ 28; Doc. 1-4 at 2 ¶ 5.) However, the Proudfoot Declaration states that $22,921.28 is the “total paid and payable” according to the Lease Agreement. (Doc. 1-4 at 3 ¶ 8.) The declaration and accompanying worksheet of current attorney of record, Scott S. 19 Shepardson, state that the lease price was $22,921.34, (Doc. 18-1 at 2 ¶ 3), and the total paid/payable was $22,931.34. (Id. at 4.) 20 Next, Defendant asserts Plaintiff’s actual damages amount to $40,092 after deducting the use offset. (Doc. 18 at 11- 12.) The Notice of Removal states that actual damages total $22,921.28. (Doc. 1 at 10 ¶ 32.) Elsewhere, Defendant specifies that the “maximum basic exposure” or “actual damages” is $41,833.89. (See Doc. 18 at 10.) The $41,833.89 is, in 21 fact, the “Total Repurchase Estimate” calculation provided in Mr. Shepardson’s “Repurchase Estimate” worksheet summarizing Defendant’s liability exposure. (See Doc. 18-1 at 4.) Mr. Shepardson does not suggest that this figure 22 represents actual damages. Instead, from the total paid/payable, Mr. Shepardson deducted a trade-in amount ($2,117.36), a service contract fee ($1,195.00), and a mileage offset ($1,110.84) (4,350 miles/120,000 miles x $22,931.34), then added 23 t th he a tr ae cs ti udu ala l d v amalu age eo sf , t ah fe te V r de eh dic ul ce t i( n$ g2 3 th,3 e2 u5 s. e7 5 o) f ft so e r t e oa fc h $ 1$ ,141 1, 08 .3 83 4. ,8 a9 m. o(I ud n.) t tB oy $ c 2o 1n ,8tr 1a 0s .t 4, 4th . e ( DP oro cu . d 1f -o 4o at tD 3e ¶c l 8a .r )a Atio sn a i rn ed si uc la tt oes f these conflicting amounts, total calculations are also inconsistent. The Notice of Removal indicates the “total potential 24 damages” amount to $130,431.32, which is consistent with the Proudfoot Declaration. (See Doc. 1 at 10 ¶ 32; Doc. 1-4 at 3 ¶ 8.) Nonetheless, because Defendant’s total does not reflect the same “actual damages” amount as the Proudfoot 25 Declaration’s calculations, relying on the same “total potential damages” amount results in error. (See id.) Separately, Defendant provides a total potential damages amount of $125,501.67, (Doc. 18 at 10), while the Shepardson Declaration calculates a “total liability exposure” of $106,833.89. (Doc. 18-1 at 4.) It is worth noting that, according to Plaintiff, 26 “Defendant alleges that the [Lease Agreement] lists the total lease price of the [V]ehicle as $49,042.62. Accordingly, after including a milage offset, Defendant concludes that Plaintiff is seeking $124,396.92 in monetary damages and civil 27 penalties.” (Doc. 19 at 4-5, citing “Defendant’s Opposition at 13: 19-25” [emphasis added].) As for the use offset, Mr. Shepardson based his calculation on 4,350 miles, (Doc. 18-1 at 4), while Mr. Proudfoot indicates the Vehicle had 4,250 miles when it presented for its first repair. (Doc. 1-4 at 3 ¶ 8.) They also relied on different 28 amounts payable. Curiously, both counsel ended up with the same offset amount of $1,110.84. (See Doc. 1-4 at 3 ¶ 8; Doc. 1 damages, there is one commonality: Defendant fails to consider that Plaintiff leased the Vehicle. As a 2 lessee, Plaintiff asserts that his recovery is limited to the actual amount paid to the seller, and 3 Defendant has “provided no facts indicating how many payments have already been made.” (Doc. 6 at 4 6; Doc. 19 at 5, citing Brady v. Mercedes-Benz USA, Inc.,

(N.D. Cal. 5 2002).) 6 In Brady, the Northern District of California clarified how “actual price paid or payable by the 7 buyer,” as provided in

(d)(2)(B), is defined “in the context of an automobile 8 lease.” See

. The plaintiff claimed damages including, inter alia, restitution 9 in the amount of $22,603.00, which was based on a down payment of $1,449.00 and 28 monthly 10 payments of $755.50, all of which the plaintiff had paid under the lease.

. The court held 11 that limiting the lessee-plaintiff’s recovery to payments “actually made” was consistent with the Song- 12 Beverly Act’s “logic and purpose … to make the consumer whole” as well as “the general principle of 13 restitution embodied in

(d)(2)(B) which seeks to restore the plaintiff to his or 14 her original position.”

(emphasis in original). 15 Faced with similar scenarios, other courts within this Circuit have been guided by Brady and 16 reject calculations that do not indicate the amount of lease payments actually made. See, e.g., D’Amico 17 v. Ford Motor Co.,

, at *2 (C.D. Cal. May 21, 2020) (foreclosing argument that 18 lessee’s actual damages include the total amount payable and noting that Brady “squarely concludes 19 that in the context of a lease, the Act’s phrase ‘actual price paid or payable by the buyer’ is ‘limit[ed] 20 ...to payments actually made’”); Ghayaisi v. Subaru of Am., Inc.,

(C.D. Cal. Mar. 21 6, 2020) (declining to accept defendant’s damages calculation based on total lease payments where 22 defendant “presented no facts regarding how many payments were actually made”); Cruz v. Mercedes- 23 Benz USA, LLC,

, at *2 (C.D. Cal. Sept. 29, 2020) (concluding that where defendant 24 provided “no facts to support the amount of lease payments made by” plaintiff, the court could not 25 “discern what amount [plaintiff] has paid towards the lease” and thus, failed to carry its burden in 26 demonstrating “what portion of the lease may be considered in determining actual damages”). In cases 27 involving a purchase, courts have emphasized the contrast between leases and purchases in 28 determining actual damages calculations. See, e.g., Mpock v. FCA US LLC,

, at *10 1 n.7 (E.D. Cal. Nov. 17, 2021), report and recommendation adopted,

(E.D. Cal. 2 Dec. 16, 2021) (finding D’Amico inapposite because it involved a lease rather than a purchase); 3 Messih v. Mercedes-Benz USA, LLC,

, at *4 n.3 (N.D. Cal. June 24, 2021) (finding 4 that in case involving the purchase of a vehicle, plaintiff’s reliance on D’Amico and Ghayaisi was 5 misplaced as both involved leases rather than purchases). 6 Because none of the calculations offered by Defendant indicate the amount of lease payments 7 Plaintiff made, and Defendant does not provide facts to support such an amount, Defendant fails to 8 meet its burden of showing that any of its proffered actual damages amounts should be included in 9 determining the amount in controversy calculation. 10 b. Civil penalties 11 In addition to actual damages, Defendant points to Plaintiff’s claim for civil penalties as a basis 12 for satisfying the amount in controversy requirement. (See Doc. 1 at 9-10 ¶¶ 29-30, 32; Doc. 18 at 10- 13 12.) Plaintiff argues that because the amount of actual damages is speculative, so too is the civil 14 penalty calculation. (Doc. 6 at 7.) 15 Generally, civil penalties under the Song-Beverly Act are properly included in determining the 16 amount in controversy. Mullin,

, *4 (“The amount in controversy for diversity 17 jurisdiction may include punitive damages if recoverable under state law.”) (citing Brady,

Supp. 2d at 1009). The Song-Beverly Act does not provide for punitive damages, but “[c]ourts have 19 held that the civil penalty under [Song-Beverly] is akin to punitive damages, because both have the 20 dual effect of punishment and deterrence for defendants.”

(citations omitted). Moreover, “courts 21 have held in other contexts that treble damages authorized by state law may be included in 22 determining the amount in controversy” and Song-Beverly “in effect authorizes treble damages.”

(citations omitted). 24 The Song-Beverly Act allows for civil penalties up to two times the actual damages suffered 25 by the plaintiff. Mullin,

, *4 (citing Brady,

). “If the amount 26 of actual damages is speculative, however, an attempt to determine the civil penalty is equally 27 uncertain.” Chavez v. FCA US LLC,

, at *2 (C.D. Cal. Jan. 27, 2020) (citing Edwards 28 v. Ford Motor Co.,

, at *4 (C.D. Cal. Nov. 4, 2016)). Because Defendant did not 1 establish the amount of actual damages by a preponderance of the evidence, the amount of civil 2 penalties is equally uncertain. Defendant, therefore, failed to satisfy its burden of proof required to 3 include civil penalties in the jurisdictional amount. 4 c. Attorneys’ fees 5 Defendant also relies on Plaintiff’s claim for attorneys’ fees to satisfy the jurisdictional 6 minimum. (Doc. 1 at 9-10 ¶¶ 30-32; Doc. 18 at 12-13.) The Ninth Circuit held that future attorneys’ 7 fees awards may be included in determining the amount in controversy under fee-shifting statutes. 8 Fritsch v. Swift Transp. Co. of Ariz., LLC,

(9th Cir. 2018); see also Martinez v. 9 Ford Motor Co.,

, at *7 (E.D. Cal. May 6, 2019) (“Attorneys’ fees are available to 10 Plaintiffs here under California Civil Code Section 1794(d).”). District courts may exclude future fees 11 if they are too speculative or if the defendant fails to show with a “reasonable probability that the 12 amount in controversy exceeds the minimum.” Fritsch,

. “A district court may reject 13 the defendant’s attempts to include future attorneys’ fees in the amount in controversy if the defendant 14 fails to satisfy this burden of proof.”

15 Defendant argues that “Plaintiffs’ attorneys in Song-Beverly cases tried or prepared for trial 16 regularly request more than $65,000 in fees.” (Doc. 1 at 9-10 ¶ 31.) Defendant has not met its burden 17 of proof to include either of its estimates of attorneys’ fees in the amount in controversy calculation. 18 Defendant’s only support comes from a single sentence in the declaration of Mr. Proudfoot, which 19 makes the same assertion as Defendant. (See Doc. 1-4 at 3 ¶ 9 [“Plaintiffs’ attorneys in Song Beverly 20 cases tried or prepared for trial regularly request more than $65,000 in fees.”].)4 A single declaration 21 stating a lump sum of future of attorneys’ fees does not estimate future fees with a reasonable 22 probability. See Schneider, 441 F. Supp. 3d at 914 (finding a declaration stating that “claims for 23 attorneys’ fees in these cases regularly approach or exceed $50,000” and that a recent fee demand by 24 Plaintiff’s counsel exceeded $300,000 was not competent proof to include fees). The fee estimate also 25 lacks the type of evidentiary support that typically allows for the inclusion of fees, such as fee 26 27 4 In opposition to Plaintiff’s motion to remand, Defendant instead cites to the declaration of Mr. Shepardson, who substituted as counsel of record in place of Mr. Proudfoot in the interim between filing the Notice of Removal and Defendant’s opposition to remand. (See Docs. 9, 12.) Mr. Shepardson essentially makes the same assertion: “The mainstay 28 of my law practice is defending Song-Beverly cases. Plaintiffs’ attorneys in these cases regularly request more than 1 petitions submitted in similar cases. See Martinez,

, at *7 (including attorneys’ fees 2 in the amount in controversy where defendant submitted “five petitions for attorneys’ fees filed in 3 other similar cases by the same counsel who represent Plaintiffs here”). 4 Finally, California district courts, including this District, have rejected nearly identical 5 arguments to those raised by Defendant. For example, in Mpock v. FCA US LLC, the court agreed that 6 an attorneys’ fees estimate of $35,000 was “too speculative to establish the threshold amount in 7 controversy” based on the assertion that “Plaintiff’s attorneys regularly request more than $75,000 in 8 Song-Beverly cases tried or prepared for trial.”

, at *13 (E.D. Cal. Nov. 17, 2021). 9 The court explained: 10 Defense counsel’s declaration does not provide any factual details underlying the claims, litigation strategies, or the litigation timelines of 11 any of the cases cited in support of her fees averment; therefore, it is impossible for this Court to determine whether such cases are analogous 12 to the instant matter and thus a persuasive indicator regarding the amount of attorney’s fees Plaintiff might recover in this action. 13

14 In D’Amico v. Ford Motor Company, the defendant argued that “[e]ven without adding 15 reasonable attorney’s fees, the amount-in-controversy exceeds $75,000.”

, at *4 16 (C.D. Cal. May 21, 2020). Pointing to this assertion, the court found that the defendant made “no 17 effort to explain what amount of attorney fees might be sought or awarded in this case.”

Instead, 18 the defendant argued “generally” that “plaintiff’s attorneys regularly request more than $65,000 in 19 Song Beverly cases tried or prepared for trial,” and cited a collection of cases.

The court was “not 20 persuaded that ‘more than $65,000’ [was] a reasonable estimate of attorney fees” and explained that 21 “many cases alleging violations of the Act settle early, and Defendant provides no explanation for why 22 this case is similar to ones that went to trial. Nor does Defendant provide an estimate of the hours that 23 will be incurred or hourly rates that would apply in this case.”

24 Defendant raises the same arguments as those advanced and rejected in Mpock and D’Amico, 25 (see, e.g., Doc. 1 at 9 ¶¶ 31; Doc. 18 at 5, 12), but fails to provide (1) “factual details underlying the 26 claims, litigation strategies, or the litigation timelines of any of the cited cases” or an explanation of 27 how this case is similar to those cited; (2) the amount of attorneys’ fees that might be sought or 28 awarded in this case; or (3) an estimate of the hours incurred or hourly rates it would apply in this 1 || case. Mpock,

, at *13; D’Amico,

, at *4. 2 Like its calculations for actual damages and civil penalties, Defendant’s $65,000 calculation i 3 || purely speculative and lacks evidentiary support. In sum, none of these amounts can be included in th 4 || amount in controversy calculation. See Fritsch,

. Accordingly, the Court finds 5 || Defendant has failed to meet its preponderance burden to establish that the jurisdictional threshold of 6 || $75,000 is in controversy. 7 B. Remaining Arguments 8 Because Defendant has failed to meet its burden to show that the amount in controversy excee 9 || the jurisdictional minimum, the Court need not address Plaintiff's arguments related to complete 10 || diversity or principles of comity. (See Doc. 6 at 8-11.) 11 ||1V.__ Conclusion and Order 12 For the reasons set forth above, the Court ORDERS: 13 1. Plaintiff's motion to remand (Doc. 6) is GRANTED. 14 2. The case is remanded to the Superior Court for the County of Kern and the Clerk of 15 Court is directed to close the case. 16 17 ||IT IS SO ORDERED. 18 |! Dated: _ July 3, 2024 Cerin | Tower 19 TED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 12