“Federal jurisdiction must be rejected if there is any 9 doubt as to the right of removal in the first instance.”
How later courts described this case
- “Federal jurisdiction must be rejected if there is any 9 doubt as to the right of removal in the first instance.”
- noting that § 17200 does not provide for the recovery of 1 meant to go only to the representative plaintiff. Under Cal. Lab. Code § 226(e
- “[I]t would seriously undermine the [anti-aggregation] rule to allow attorney’s 13 fees to be allocated solely to a named plaintiff in determining the amount in 14 controversy.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 CENTRAL DISTRICT OF CALIFORNIA
9 SOUTHERN DIVISION
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)
11 ) Case No.: SACV 21-00925-CJC(ADSx)
)
12 )
JOSE ROBLES, as an individual and on )
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behalf of other similarly situated )
14 employees, )
)
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Plaintiff, ) ORDER GRANTING PLAINTIFF’S
16 ) MOTION TO REMAND [Dkt. 9]
v. )
17 )
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18 ROLLER BEARING COMPANY OF )
AMERICA, INC., a Delaware )
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Corporation )
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21 Defendant. )
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24 I. INTRODUCTION AND BACKGROUND
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26 Plaintiff Jose Robles brings this class action against Defendant Roller Bearing
27 Company of America, alleging that Defendant failed to provide him and other similarly
1 for necessary expenses in violation of California law. (Dkt. 1-1 [hereinafter “Compl.”].)
2 Plaintiff is a resident of California. (Id. ¶ 11.) Defendant is a Delaware Corporation with
3 its principal place of business in Oxford, Connecticut. (Id. ¶ 12.) Plaintiff’s complaint
4 does not provide any specific damages figures. (See id.)
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6 Plaintiff originally filed the action in Orange County Superior Court on April 13,
7 2021. (Compl.) Defendant removed the action to this Court on May 20, 2021. (Dkt. 1
8 [hereinafter “NOR”].) Defendant’s removal was based on traditional diversity
9 jurisdiction under 28 U.S.C. § 1332(a) and, in the alternative, jurisdiction under the Class
10 Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2). On June 21, 2021, Plaintiff
11 moved the Court to remand the action back to state court. (Dkt. 9 [hereinafter “Mot.”].)
12 Afterwards, the parties stipulated to conduct jurisdictional discovery regarding the
13 amount in controversy in this action. (Dkt. 12, 15.)
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15 It appears that the parties have completed their jurisdictional discovery and are
16 ready for the Court to rule on Plaintiff’s motion.1 For the following reasons, Plaintiffs’
17 motion to remand is GRANTED and the action is REMANDED to Orange County
18 Superior Court.2
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1 Defendant states that Plaintiff did not respond to certain discovery requests to Defendant’s satisfaction.
25 (Dkt. 17 [hereinafter “Opp.”] at 3.) In Plaintiff’s responses to Defendant’s discovery requests, he
explained that his failure to respond is due to Defendant’s failure to produce documents upon which
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Plaintiff’s answers would be based. (See Dkt. 17-2.) At any rate, Defendant does not specifically argue
27 that Plaintiff’s purportedly inadequate responses hurt its ability to effectively oppose Plaintiff’s motion.
2 Having read and considered the papers presented by the parties, the Court finds these matters
1 II. LEGAL STANDARD
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3 An action is removable to a federal court only if it might have been brought there
4 originally. 28 U.S.C. § 1441(a). A district court has diversity jurisdiction over any civil
5 action when all of the parties are citizens of different states, and the amount in
6 controversy exceeds $75,000. 28 U.S.C. § 1332(a). There is a strong presumption
7 against removal in cases removed pursuant to section 1332(a). See Gaus v. Miles, Inc.,
8 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be rejected if there is any
9 doubt as to the right of removal in the first instance.”). Alternatively, under CAFA, a
10 district court has diversity jurisdiction over any class action involving at least 100 class
11 members in which there is minimal diversity—that is, any one plaintiff is a citizen of a
12 different state than any one defendant—and the amount in controversy exceeds
13 $5,000,000. 28 U.S.C. § 1332(d)(2) & (5). There is no anti-removal presumption in
14 cases removed pursuant to CAFA. Dart Cherokee Basin Operating Co., LLC v. Owens,
15 574 U.S. 81, 89 (2014). The proponent of removal has the burden of establishing that an
16 action is removable, whether jurisdiction is alleged under section 1332(a) or section
17 1332(d). See Abrego v. Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006).
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19 III. DISCUSSION
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21 A. CAFA Jurisdiction
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23 The parties dispute whether the amount in controversy exceeds $5,000,000 in this
24 action.3 The Ninth Circuit has explained that a motion to remand following a removal
25 pursuant to CAFA may be either “facial” or “factual.” Salter v. Qual. Carriers, Inc., 974
26 F.3d 959, 964 (9th Cir. 2020). “A ‘facial’ attack accepts the truth of the plaintiff's
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1 allegations but asserts that they ‘are insufficient on their face to invoke federal
2 jurisdiction.’” Id. (quoting Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). In
3 reviewing a facial attack on jurisdiction, the court accepts the allegations as true, draws
4 all reasonable inferences in the defendant’s favor, and determines whether the allegations
5 are sufficient as a legal matter to invoke the court’s jurisdiction. Id.; see also Kendall v.
6 Nestle Waters N. Am., Inc., 2021 WL 364639, at *2 (C.D. Cal. Feb. 1, 2021) (“Where, as
7 here, the amount in controversy is contested, and the plaintiff does not plead a specific
8 amount in controversy, the defendant’s evidentiary burden in opposing a motion to
9 remand depends on whether plaintiff has mounted a facial or factual attack on
10 defendant’s jurisdictional allegations.”). However, even under this more lenient standard,
11 the Court must probe the reasonableness of the assumptions made in the removing party’s
12 notice of removal. See Lopez v. Adidas Am., Inc., 2021 WL 927265 (C.D. Cal. Mar. 11,
13 2021); Brown v. Janus of Santa Cruz, 2021 WL 3413349 (N.D. Cal. Aug. 5, 2021).
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15 The Court finds Defendant’s notice of removal facially deficient. Defendant fails
16 to provide the Court with any calculation as to the amount in controversy and fails to
17 identify what assumptions it is making so that the Court might evaluate their
18 reasonableness. Instead, Defendant merely summarizes Plaintiff’s complaint, which
19 itself makes only broad and uncertain damages allegations. Defendant explains that
20 Plaintiff seeks one hour of pay at each employee’s regular rate of compensation for each
21 workday that a meal period is not provided. (NOR ¶ 14.b.i.). Defendant does not attempt
22 to approximate the “regular rate of compensation” or the number of workdays involved.4
23 Defendant next seems to imply that damages for Defendant’s failure to provide accurate
24 pay statements will exceed $25,000 for each class member. (Id. ¶ 14.b.iii.) But
25 Defendant’s own opposition brief rebuts this assertion, arguing that there exists a $4,000
26 damages cap for this violation. (Opp. at 7.) Defendant points out that Plaintiff seeks
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1 damages for unreimbursed business expenses but fails to approximate what those might
2 be or provide the Court any basis to perform its own approximation.5 (NOR ¶ 14.b.iv.)
3 Defendant also points out that Plaintiff seeks penalties under California’s Private
4 Attorney General Act, stating that such damages are $100 for each aggrieved employee
5 per pay period for the initial violation and $200 per pay period for each subsequent
6 violation. (Id. ¶ 14.b.vi.) But Defendant fails to provide the Court with an estimation of
7 the number of pay periods involved in this action or the approximate number of
8 violations involved per pay period so that the Court can calculate what these various $100
9 and $200 violations might add up to. Finally, Defendant argues that courts routinely add
10 attorneys’ fees to an amount in controversy calculation in an amount equal to 25% of the
11 potential damages. (Id. ¶ 17.) But for all the reasons explained above, the Court has no
12 reasonable way of calculating what the potential damages might be.
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14 In short, Defendant simply parrots the damages allegations in Plaintiff’s
15 complaint—which itself is vague on the amount of damages sought—and fails to provide
16 the Court any additional basis for arriving at a damages calculation. Indeed, Defendant’s
17 own damages calculation for Plaintiff suggests that class-wide damages would fall short
18 of $5,000,000. Excluding attorneys’ fees for reasons explained below, Defendant
19 approximates that Plaintiff incurred $27,740 in damages. Multiplying that figure by 100
20 class members,6 the Court arrives at class-wide damages of $2,774,000. Even under
21 Defendant’s light burden to overcome a facial attack, its underdeveloped allegations fail
22 to make a sufficient showing that the amount in controversy in this action exceeds
23 $5,000,000.
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5 This same issue applies to Defendant’s allegation in Dkt. 1-1 ¶ 14.b.v.
6 In its notice of removal, Defendant asserts that the class is “likely well over 100 members.” (Dkt. 1-1
1 B. Jurisdiction Under Section 1332(a)
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3 Defendant has also failed to adequately show that the amount in controversy will
4 exceed $75,000 with respect to Plaintiff specifically. When viewed through the lens of
5 traditional diversity jurisdiction analysis under section 1332(a), a class action, when filed,
6 includes only the claims of the named plaintiff. Gibson v. Chrysler Corp., 261 F.3d 927,
7 940 (9th Cir.2001). The claims of all plaintiffs, or the theoretical class-wide damages of
8 all defendants, cannot be aggregated in determining the amount in controversy under
9 section 1332(a). See Bates v. Gen. Nutrition Centers, Inc., 897 F. Supp. 2d 1000, 1003
10 (C.D. Cal. 2012). In other words, to defeat Plaintiff’s motion to remand, Defendant has
11 to show that Plaintiff is citizen of a different state than Defendant and individually claims
12 more than $75,000. See Gibson, 261 F.3d at 941.
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14 Defendant asserts, and Plaintiff does not contest, that the complete diversity
15 requirement is met here. (Opp. at 5.) Plaintiff is a citizen of California, (Compl. ¶ 11),
16 and Defendant is a citizen of Delaware and Connecticut, (Compl. ¶ 12.) Defendant
17 further asserts that the amount in controversy requirement is met, relying primarily on the
18 amount of attorneys’ fees Plaintiff is likely to collect if successful in this action.7 (Opp.
19 at 8-9.) “[W]here an underlying statute authorizes an award of attorneys’ fees . . . such
20 fees may be included in the amount in controversy.” Galt G/S v. JSS Scandinavia, 142
21 F.3d 1150, 1156 (9th Cir. 1998). However, any potential attorneys’ fees award is not
22 automatically attributed solely to the named plaintiff for purposes of calculating the
23 amount in controversy. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 858 (9th Cir.
24 2001); Gibson v. Chrysler Corp., 281 F.3d 927 (9th Cir. 2001); Canela v. Costco
25 Wholesale Corporation, 971 F.3d 845, 850, n.2 (9th Cir. 2020). Rather, whether an
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7 Defendant also asserts that Plaintiff has put in controversy $22,890 for unpaid meal and rest period
1 award of attorneys’ fees should be attributed solely to the named plaintiff or spread
2 across the class for the purposes of calculating the amount in controversy is a matter of
3 interpreting the statute authorizing attorneys’ fees and its surrounding case law. See
4 Canela, 971 F.3d at 850, n.2. Defendant does not address this anti-aggregation rule in its
5 opposition.
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7 Here, there are several statutes pursuant to which Plaintiff makes a claim for
8 attorneys’ fees. The statutes include: Cal. Civ. Proc. Code § 1021.5, Cal. Lab. Code §§
9 226, 1194, 2698, and 2802, and Cal. Bus. & Prof. Code § 172008. None of these
10 provisions support attributing attorneys’ fees to Plaintiff alone. Gibson dealt specifically
11 with Cal. Civ. Proc. Code § 1021.5 and held that that provision requires any attorneys’
12 fees awarded to be divided among all members of a class when calculating the amount in
13 controversy. 261 F.3d at 943. Canela dealt specifically with Cal. Lab. Code § 2698 and
14 held the same. 971 F.3d at 850, n.2.
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16 The Court could find no Ninth Circuit case dealing with Cal. Lab. Code §§ 226 and
17 1194. But other courts in this circuit have held that attorneys’ fees under these statutes
18 cannot be attributed solely to the named plaintiff in a class action. See Davenport v.
19 Wendy's Co., 2013 U.S. Dist. LEXIS 180437 at *5–6 (E.D.Cal. Dec. 24, 2013) (holding
20 that under Cal. Lab. Code §§ 226(e) and 1194(a), the “estimate of potential attorneys’
21 fees must be divided by the number of class members” when calculating the amount in
22 controversy); Perez v. WinnCompanies, Inc., 2014 WL 5823064, at *10 (E.D. Cal. Nov.
23 10, 2014) (same); Buchanan v. Aramark Campus, LLC, 2019 WL 3302164, at *6 (N.D.
24 Cal. July 23, 2019) (same). The Court adopts the approach taken by other federal courts.
25 The language in both provisions does not support an argument that attorneys’ fees are
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8 Cal. Bus. Prof. Code § 17200 is silent on attorneys’ fees. See Cel-Tech Commc'ns, Inc. v. Los Angeles
Cellular Tel. Co., 20 Cal. 4th 163, 179 (1999) (noting that § 17200 does not provide for the recovery of
1 meant to go only to the representative plaintiff. Under Cal. Lab. Code § 226(e), “[a]n
2 employee suffering injury” is entitled to an award of attorneys’ fees. This language does
3 not limit recovery solely to Plaintiff, as he is not the only employee who suffered an
4 injury. Cal. Lab Code § 1194 provides recovery for “any employee receiving less than
5 the legal minimum wage or the legal overtime compensation applicable to the employee.”
6 Again, this provision contains no limiting language that would suggest recovery is
7 confined to Plaintiff.
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9 Section 2802(a) provides that “[a]n employer shall indemnify his or her employee
10 for all necessary expenditures or loss incurred by the employee in direct consequence of
11 the discharge of his or her duties.” Section 2802(c) further states “the term ‘necessary
12 expenditures or losses’ shall include all reasonable costs, including, but not limited to,
13 attorney’s fees incurred by the employee enforcing the rights granted by this section.”
14 Defendant might argue that Plaintiff is the employee doing the enforcement here.
15 However, there is nothing in section 2802 or its surrounding provisions that would
16 suggest that the California Legislature intended “employee enforcing the rights” to refer
17 to a class representative. See In re Abbott Laboratories, 51 F.3d 524, 529 (5th Cir.1995)
18 (attributing attorneys’ fees solely to named plaintiff where Louisiana statute specifically
19 granted attorneys’ fees to the “representative parties” in a class action). Section 2802(c)
20 should also be read in conjunction with section 2802(a), as the former’s purpose is to
21 define a term in the latter. Section 2802(a) contains no language that would limit
22 reimbursement to a representative plaintiff only. Rather, section 2802(a) invites any
23 employee to seek reimbursement for costs incurred on the job. It is also relevant that
24 California courts have granted reimbursement for business expenses to all class members
25 in class actions brought under section 2802. See, e.g., Estrada v. FedEx Ground Package
26 Sys., Inc., 154 Cal. App. 4th 1, 25 (2007). The Ninth Circuit found this point relevant in
27 Canela, pointing out that judgments under California’s Private Attorney General Act
1 should not be attributable to only the named plaintiff. 971 F.3d at 850, n.2; see also
2 Gibson, 261 F.3d at 942 (“California courts have stated that § 1021.5 awards are a bounty
3 for plaintiffs who successfully litigate in the public interest, but they have not held that
4 this bounty goes only to named plaintiffs in a class action.”) (internal quotations and
5 citation omitted). Further, the court in Collins v. ServiceLink Field Services, LLC, 2019
6 WL 1536347 (S.D. Cal. Apr. 09, 2019) decided not to attribute attorneys’ fees solely to
7 the named plaintiff in a case involving a claim for attorneys’ fees under section 2802,
8 among other provisions, though the court declined to provide an analysis of section
9 2802’s text or surrounding case law. The Court holds that section 2802 does not support
10 attributing attorneys’ fees solely to Plaintiff for the purposes of calculating the amount in
11 controversy. See Patel v. Nike Retail Servs., Inc., 58 F. Supp. 3d 1032, 1049 (N.D. Cal.
12 2014) (“[I]t would seriously undermine the [anti-aggregation] rule to allow attorney’s
13 fees to be allocated solely to a named plaintiff in determining the amount in
14 controversy.”).
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16 Thus, Defendant’s calculation of $75,000 in attorneys’ fees must be spread among
17 the class. Defendant asserts that this class is comprised of well over 100 members. (Dkt.
18 1-1 ¶ 14.) As such, the most that Plaintiff’s pro rata share of the attorneys’ fees can be
19 using Defendant’s attorneys’ fees calculation is $750. Using this figure, the amount in
20 controversy attributable to Plaintiff is $28,440 ($750 added to Defendant’s other
21 calculated amounts of $22,890, $4,000, and $850). This is far below the $75,000
22 threshold.
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1 CONCLUSION
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3 For the foregoing reasons, Plaintiffs’ motion to remand is GRANTED. The Court
4 |} ORDERS the action REMANDED to Orange County Superior Court.
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7 DATED: — September 20, 2021
Ko : pe
9 ST fe
10 CORMAC J. CARNEY
11 UNITED STATES DISTRICT JUDGE
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