Samanatha Shaunee Brown v. Western First Aid & Safety

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

Present: The Honorable CHRISTINA A. SNYDER

Catherine Jeang Robin Herrera N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Matthew Carraher Sarah Zenewicz

Proceedings: ZOOM HEARING RE: MOTION TO REMAND (Dkt. 16, filed

on August 19, 2024)

I. INTRODUCTION

On June 20, 2024, plaintiff Samantha Shaunee Brown (“plaintiff”) filed suit in Los

Angeles Superior Court against defendants Western First Aid & Safety, Vestis

Corporation, Vestis Group, Inc., Katie Hall, and Does 1 through 50 (collectively

“defendants”).! Dkt. 1-1. On July 24, 2024, defendants removed the case to federal court

on the basis of Class Action Fairness Act (“CAFA”) jurisdiction. Dkt. 1 (“Notice of

Removal’).

On August 12, 2024, plaintiff filed her first amended complaint naming the same

defendants and asserting nine claims for relief: (1) Failure to Pay Minimum Wages (Cal.

Lab. Code §§ 204, 1185, 1194, 1194(a), 1194.2, 1197, 1197.1, 558); (2) Failure to Pay

Wages and Overtime (Cal. Lab. Code §§ 204, 510, 558, 1194); (3) Meal Period Liability

(Cal. Lab. Code § 226.7; IWC Wage Order §] 11); (4) Rest-Break Liability (Cal. Lab.

Code § 226.7; IWC Wage Order 12): (5) Failure to Pay Vacation Wages (Cal. Lab.

Defendants request judicial notice of its Foreign Limited Liability (LLC) Name Change

Amendment filed with the California Secretary of State on December 27, 2023, attaching

its Certificate of Amendment changing the name of Aramark Uniform & Career Apparel,

LLC to Vestis Services, LLC. Dkt. 18-2. A court may properly take judicial notice of

undisputed matters of public record. See Fed. R. Evid. 201: Lee v. City of Los Angeles,

250 F.3d 668, 689 (9th Cir. 2001). Accordingly, the Court finds it appropriate to take

judicial notice of this exhibit.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title "Samantha Shaunee Brown v. Western First Aid & Safety etal.

Code § 227.3): (6) Failure to Provide Accurate Itemized Wage Statements (Cal. Lab.

Code § 226(a)); (7) Failure to Timely Pay Final Wages (Cal. Lab. Code § 203); (8)

Failure to Reimburse Necessary Business Expenses (Cal. Lab. Code § 2802); and (9)

Violation of Business & Professions Code § 17200 et seg. (“the UCL”). Dkt. 15

(“Compl”) 4 49-116.

On August 19, 2024, plaintiff filed the instant motion to remand the case to Los

Angeles Superior Court. Dkt. 16 (“Mot.”). On August 29, 2024, defendants filed their

opposition to plaintiff's motion to remand. Dkt. 8 (“Opp.”). On September 5, 2024,

plaintiff filed her reply. Dkt 22 (“Reply”).

On December 9, 2024, the Court held a hearing. Having carefully considered the

parties’ arguments and submissions, the Court finds and concludes as follows.

II. BACKGROUND

Plaintiff worked as a non-exempt hourly employee of defendants from about

September 2022 to July 28, 2023, when she was terminated. Compl. § 4. Plaintiff seeks

in this action to represent nine subclasses: (1) the Minimum Wages Subclass; (2) the

Wages and Overtime Subclass; (3) the Meal Period Subclass: (4) the Rest Break

Subclass; (5) the Wage Statement Subclass; (6) the Termination Pay Subclass (7) the

Vacation Pay Subclass; (8) the Expense Rermbursement Subclass; and (9) the UCL

Subclass. Id. § 35(a-1).

Plaintiff contends that she and the Class, or some members thereof, were not paid

by defendants for all hours worked or were not paid at the appropriate minimum, regular

and overtime rates. Id. { 15. She also alleges that defendants failed at times to pay some

or all Class members “all wages due and owing, including by requiring off the clock

work, failing to provide meal and rest breaks, failing to furnish accurate wage statements,

failing to timely pay wages including final wages, failing to pay out vacation days, and

failing to reimburse necessary business expenses all in violation of ... the ... Labor Code

and applicable Wage Orders.” Id.

Plaintiff alleges a number of specific examples of off the clock work. These

include requirements that employees answer emails promptly even outside of work hours

and managers instructing employees to clock out at the end of shifts to avoid overtime,

while requiring them to answer any emails received toward the end of a shift after

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

clocking out. 16. Plaintiff specifies instances during which she alleges she worked

more than eight hours in a day and did other off the clock work, but did not receive the

requisite overtime. Id. 18. Plaintiff also contends that she and others were not paid at

the required increased rate for the overtime hours they worked. Id. 20. She alleges that

defendants’ “willful actions resulted in the systemic underpayment of wages to Class

Members, including underpayment of overtime pay to Class Members, or some of them,

over a period of time.” Id. § 21. Plaintiff also alleges the specific manner in which meal

and rest breaks were interrupted, claiming that “|s]he was made to acknowledge and

respond to time sensitive emails, phone calls and/or text messages.” Id. § 24. As a result,

she alleges, she and other Class Members who were subjected to the same treatment did

not receive a full thirty minutes of off-duty rest time. Id. Plaintiff alleges that she and

other Class Members were also not afforded premium pay of one hour of additional

wages for each meal or rest break that defendants failed to provide, or which was

provided but did not meet the requirements of California law. Id. § 25.

Plaintiff also alleges that defendants failed to issue accurate itemized wage

statements as required by Labor Code § 226(a) because they failed to accurately list the

amount of total hours worked by failing to account for unpaid wages and by failing to

account for actual hours worked because of under-reported off the clock work. Id. § 30.

Plaintiff also contends that defendants have a policy of failing to pay all wages owed

within seventy-two hours of termination and that they regularly required Class Members

to incur business expenses in the course of performing their required job duties. Id. ff

31-32. Plaintiff alleges specifically that she was required to pay for a home WiFi system

to do her remote job. Id. § 32.

Ii. LEGAL STANDARD

Remand may be ordered either for lack of subject matter jurisdiction or for any

defect in removal procedure. See 28 U.S.C. § 1447(c). The Court strictly construes the

removal statutes against removal jurisdiction, and jurisdiction must be rejected if there is

any doubt as to the right of removal. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

1992).

CAFA gives federal courts jurisdiction over certain class actions if (1) “the class

has more than 100 members”; (2) “the parties are minimally diverse”; and (3) “the

amount in controversy exceeds $5 million.” Dart Cherokee Basin Operating Co., LLC v.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

Owens, 574 U.S. 81, 84-85, (2014). There is no presumption against removal jurisdiction

in CAFA cases; however, the defendant still bears the burden of establishing removal

jurisdiction. Id. at 554. CAFA’s “minimal diversity” requirement means that “a federal

court may exercise jurisdiction over a class action if ‘any member of a class of plaintiffs

is a citizen of a State different from any defendant.’” Mississippi ex rel. Hood v. AU

Optronics Corp., 571 U.S. 161, 165, (2014) (quoting 28 U.S.C. § 1332(d)(2)(A)). Where,

as here, the amount in controversy is contested, and the plaintiff does not plead a specific

amount in controversy, the defendant’s evidentiary burden in opposing a motion to

remand depends on whether plaintiff has mounted a facial or factual attack on

defendant’s jurisdictional allegations. Salter v. Quality Carriers, Inc., 974 F.3d 959, 964

(9th Cir. 2020). A facial attack “accepts the truth of the [defendant’s] allegations but

asserts that they are insufficient on their face to invoke federal jurisdiction,” thus calling

for the Court to “determine|] whether the allegations are sufficient as a legal matter to

invoke the court’s jurisdiction.” Id. (quoting Leite v. Crane Co., 749 F.3d 1117, 1121 (9th

Cir. 2014)). In contrast, a factual attack “contests the truth of |defendant’s| factual

allegations, usually by introducing evidence outside the pleadings.” Id. “When a

plaintiff mounts a factual attack, the burden is on the defendant to show, by a

preponderance of the evidence, that the amount in controversy exceeds the $5 million

jurisdictional threshold.” Harris v. KM Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020).

Although a plaintiff may present evidence in support of a factual attack, they “need only

challenge the truth of defendant’s jurisdictional allegations by making a reasoned

argument as to why any assumptions on which they are based are not supported by the

evidence.” Id. at 700.

Under the preponderance of the evidence standard, the removing party must

“provide evidence establishing that it is more likely than not that the amount in

controversy exceeds [the jurisdictional amount].” Sanchez v. Monumental Life Ins. Co..

102 F.3d 398, 404 (9th Cir. 1996) (internal quotation omitted). In determining whether

the removing party has satisfied this burden, the district court may consider facts in the

removal petition and ““summary-judgment-type evidence relevant to the amount in

controversy at the time of removal.’” Singer v. State Farm Mut. Auto. Ins. Co.,116 F.3d

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

373, 377 (9th Cir.1997) (quoting Allen v.R & H Oil & Gas Co., 63 F.3d 1326, 1335-36

(Sth Cir.1995)).

IV. DISCUSSION

Plaintiff argues that defendants fail to show that CAFA’s $5 million amount in

controversy requirement is satisfied. Mot. at 3. Plaintiff contends that defendants’

declaration, by Alma Magana, through which they seek to establish the size of the

putative class and the average pay rates of class members, “proffer[s] no evidentiary

support to support their conclusory claims.” Id. (citing dkt. 1-3 (“Magana Decl.”)).

Plaintiff argues that relevant data must be provided and authenticated in “the requisite

“summary-judgment-type’ format.” Id_ (citing Ibarra v. Manheim Invs., Inc., 775 F.3d

1193, 1197 (9th Cir. 2015) (anternal quotes omitted)). Because defendants provide no

evidence or inadequate evidence for their calculations, plaintiff argues, the Court should

value their claims at $0. Id. (citing Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th

989, 994 (9th Cir. 2022)). Plaintiff contends that defendants “rely on baseless

assumptions” to meet the amount in controversy standard because they assume in their

calculations “that every single putative class member missed one meal and one rest

period per work week; that every single class member worked for 30 minutes off the

clock each work week; and that [d]efendants committed certain Labor Code violations at

an overwhelming 100% violation rate.” Id. at 4 (citing dkt. 1 9] 30, 41, 47). According

to plaintiff, such assumptions lead to inflated damage calculations for the minimum wage

claims and resultingly inflated valuations of her derivative claim for failure to timely pay

wages due at termination. Id.

Plaintiff contends that defendant’s calculations contradict the plain language of her

complaint, which alleges “that violations occurred ‘at times’ and ‘on occasion.’” Id. at 5.

Plaintiff argues that, while a party is permitted to make assumptions based on the

allegations of the complaint to establish the amount in controversy pursuant to CAFA,

“there is simply no reasonable reading of Plaintiff's allegations (that ‘some’ putative

class members suffered violations ‘at times’ and ‘on occasion’) that could possibly

support [d]efendants’ assumption that every single class member experienced wage-and-

hour violations every single pay period throughout the Class Period as could give rise to

extreme 100% violation rates.” Id. Indeed, plaintiff argues, defendants fail to provide

evidentiary support for the proposed violation rates beyond describing the assumptions as

reasonable. Id. at 6. Plaintiff contends that producing such evidence should be simple

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

for defendants, who “are required to create and maintain the vast majority of wage

records most important in determining the amount in controversy in this Action.” Id. at 9

(citing Cal. Lab. Code § 226(a)). Plaintiff argues that the fact that defendant assumed a

lower violation rate for some of the variables does not make the assumptions less

arbitrary, “it only shows how simple it is to manipulate the assumptions to produce totals

larger or smaller than the $5 million threshold.” Id. (quoting Vanegas v. DHL Express

(USA), Inc., No. 21-CV-01538-PA-JCX, 2021 WL 1139743, at *4 (C_D. Cal. Mar. 24,

2021) (quoting Lacasse v. USANA Health Sci., Inc., No. 20-CV-01186-KJM-AC, 2021

WL 107143, at *3 (E_D. Cal. Jan. 12, 2021))). Plaintiff also argues that even if

defendants were to adjust their assumed violation rates down, this would be insufficient,

because they are required to provide evidence to support such the relevant assumptions.

Id. at 7.

Plaintiff argues that the Ninth Circuit has held that even alleging a pattern and

practice of violations does not justify an assumed 100 percent violation rate, and that here

she did not allege a pattern and practice, but instead based on her “prerogative to plead

broadly,” she used general language about the frequency of underlying violations. Id. at

11, 13 (citing Ibarra, 775 F.3d at 1199; Holcomb v. Weiser Sec’y Servs., Inc., 424 F.

Supp. 3d 840, 844 (C.D. Cal. 2019)). Plaintiff proceeds to go through the

unreasonableness of each calculation, for minimum wage damages, meal periods, rest

breaks, wage statements, final pay calculations, and attorney’s fees, relying on these same

fundamental arguments. Id. at 10-21.

Plaintiff contends that “remand 1s also warranted on the independent ground that

the Court lacks equitable jurisdiction over [p|laintiff’s claim for equitable relief under

California’s Unfair Competition Law, codified at Business & Professions Code Section

17200 et seg.” (“UCL”). Id. at 7.

In opposition, defendants contend that their Notice of Removal plausibly alleges

minimal diversity and considers only some of plaintiff's causes of action and her request

for attorneys’ fees to establish an amount in controversy of over $5 million, which is

sufficient to establish CAFA jurisdiction pursuant to Dart Cherokee. Opp. at 1.

Defendants argue that “at times” can mean every week, which plaintiff acknowledges in

her motion, and which is the frequency defendants used in their calculations. Id.

Additionally, defendants argue that it is reasonable to assume that every “Class Member

suffered violations because [p]laintiff alleges each Class Member suffered violations and

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

only alleges in the alternative that it could have just been some of them.” Id. at 1-2

(citing Compl. § 15). Defendants contend that even assuming only half the members of

the class suffered violations, half of the time, the complaint would still place over $6

million in controversy, which means the Court should deny plaintiff's motion to remand.

Id. at 2.

Defendants argue that plaintiff is incorrect that there is a presumption against

removal jurisdiction, as such a presumption was rejected by the Supreme Court in Dart

Cherokee, which also rejected a requirement that summary judgment style proof of the

kind plaintiff argues is necessary is required to support removal. Id. Defendants contend

that Dart Cherokee held that a defendant only needs to plausibly allege that the

jurisdictional amount in controversy threshold is met, and that defendant may rely on “‘a

chain of reasoning that includes assumptions’” to do so. Id. at 5 (citing Dart Cherokee,

574 U.S. at 89; Arias v. Residence Inn by Marriott, 936 F.3d 920, 925 (9th Cir. 2019)).

According to defendants, the burden of establishing the amount in controversy is light in

this case, especially because plaintiff makes a facial challenge to the allegations in the

Notice of Removal. Id. at 6 (citing Salter, 974 F.3d at 964 (quoting Leite, 749 F.3d at

1121)). Defendants contend that they have no burden to produce extensive records to

prove or disprove their liability at this stage of the litigation, rather they argue they can

rely on reasonable assumptions without proving violations actually occurred at the

assumed rate. Id. at 6-7 (citing Muniz v. Pilot Travel Ctrs. LLC, 2007 WL 1302504, at

*5 (E.D. Cal. May 1, 2007); Anas, 936 F.3d at 927). Defendants contend that

declarations, like the Magana declaration, “attesting to the size of the class and various

metrics like workweeks and pay rates routinely satisfy a defendant’s low evidentiary

burden to establish the amount placed in controversy by a complaint.” Id. at 7 (citing

Jauregui v. Roadrunner Transp. Servs., 28 F.4th 989, 993-94 (9th Cir. 2022): Serrieh v.

Jill Acquisition LLC, 2023 WL 8796717, at *3 (E.D. Cal. Dec. 20, 2023)). Defendants

argue that the declaration of Mikaela Davis, submitted with their opposition, further

supports the reasonableness of assumptions made because it shows that “the putative

class 1s entitled to at least one meal break and two rest breaks per workday, or five meal

breaks and ten rest breaks per workweek, which in turn means that an assumption of one

meal break violation per workweek would be a 20% violation rate, and one rest break

violation per workweek is a 10% violation rate.” Id. at 7-8. Defendants also contend that

their assumptions are reasonable based on plaintiff's statements in her complaint and in

her PAGA Notice Letter filed with the California Labor & Workforce Development

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

Agency, of which defendant requests the Court take judicial notice.” Id. at 8 (citing dkt.

18-3 (“PAGA Letter”)).

Defendants argue that in their Notice of Removal, they “conservatively calculated

the amount placed in controversy by [plaintiff's minimum wage] claim based on the fact

that members of the putative class have worked at least 222,824 workweeks during the

Class Period at the lowest applicable minimum wage rate of $13.00 per hour, along with

the reasonable assumption of just a half hour of unpaid minimum wage and an equal

amount of liquidated damages per workweek.” Id. (citing Notice of Removal § 29).

Defendants argue that the complaint alleges that during the course of their employment,

class members were at times not paid all wages owed and that it was a policy and practice

to not pay for all hours worked, including off the clock work pre- and post-shift and

during meal periods, as to misstate time records. Id. (citing Compl. 4§ 16, 21, 25, 48).

Based on plaintiffs claims that minimum wage violations occurred “regularly” and

“systematically” in her PAGA letter, defendants argue that it is conservative to estimate a

mere half hour per workweek of unpaid time at the lowest minimum wage rate of $13 per

hour. Id. at 9. Defendants argue that courts “routinely accept at least one hour per

workweek as a reasonable assumption for the amount in controversy for unpaid wage

claims.” Id. (citing various case law wherein courts accepted assumptions of one hour or

more of unpaid wages when policy and practice allegations were made). Additionally,

defendants contend that the amount in controversy is the maximum a plaintiff can

? The Court finds that judicial notice of plaintiff's PAGA letter is appropriate. Ovieda v.

Sodexo Operations. LLC, No. 12-CV-1750-GHK-SSX, 2013 WL 3887873, at *2 (C.D.

Cal. July 3, 2013) (determining that a PAGA letter is properly noticed because it is part

of the public record in the PAGA proceedings). However, the Court concludes that the

PAGA letter’s use of “regularly” and “consistently” to describe violations does not serve

to render defendant’s assumed violation rates reasonable. It is true that “[i]f a complaint

alleges a ‘uniform’ practice of violation and offers ‘no competent evidence in rebuttal to

the defendant’s showing,’ then ‘courts have found the defendant’s assumption of 100%

violation rate to be reasonable,’” La Grow v. JetBlue Airways Corp., No. 24-CV-00518-

ODW-SKX, 2024 WL 3291589, at *3 (C.D. Cal. July 3, 2024), but here, defendants offer

the PAGA letter’s “consistently” and “regularly” language as though these terms are

equivalent to “uniformly,” without explanation and with regard to meal break and rest

period claims, assume from this language that the violation rate is ten or twenty percent,

rather than 100 percent as the case law would dictate were the terms interchangeable.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

reasonably recover, thus assuming one violation per workweek is reasonable. Id. at 10

citing Arias, 936 F.3d at 927).

It does not make sense, defendants contend, for plaintiff to claim that only some

members of the class suffered minimum wage violations because she pled her claim on

behalf of all class members and alleges that these violations were due to policies and

practices that applied uniformly. Id. at 11. Defendants argue that any claim that the

violation was only committed against some class members was presented in the

alternative to a claim that it applied to all class members. Id.

As to meal and rest periods, defendant argues their calculations were again

reasonable and conservative because “[p]laintiff’s litany of meal and rest break violation

theories put at least one meal period and one rest period violation per workweek in

controversy,” given that plaintiff alleges that meal break violations occurred “regularly”

and rest break violations occurred “consistently.” Id. at 12-14 (citing Notice of Removal

at 31-37; Compl. 4] 24, 77). Defendants restate their argument that the amount in

controversy is the maximum plaintiff could reasonably recover, and thus their assumption

is supported, despite plaintiff's argument that defendants’ assumptions are unfounded.

Id.

Defendants next defend their wage statement damages calculation, arguing that

they “reasonably assumed every wage statement was inaccurate in at least one respect

given the broad allegations of the underlying Labor Code violations and [p]laintiff’s

broad assertions of generally defective wage statements that allegedly failed to meet all

nine of the requirements of subsection (a) of Labor Code section 226.” Id. at 15-16

(citing Notice of Removal 4 38). According to defendants, “[p|laintiff cannot seek to

represent every putative Class Member for wage statement penalties and at the same time

take issue with including every putative Class Member when calculating the maximum

amount that [p]laintiff could theoretically recover for these penalties.” Id. at 16 (citing

Alfaro v. Banter by Piercing Pagoda, No. 22-CV-00266-CJC-ADSX, 2022 WL 1284823,

at *3 (C.D. Cal. Apr. 29, 2022)). Defendants argue that plaintiff's PAGA letter said that

all wage statements were inaccurate, and thus the 100 percent assumed violation rate is

supported. Id. at 17 (citing PAGA Letter at 9). Because based on her complaint plaintiff

could seek wage statement penalties for every statement and for every class member,

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title "Samantha Shaunee Brown v. Western First Aid & Safety etal.

defendant argues that “penalties for all wage statements to the Class Members during this

period are in controversy.” Id.

Defendant argues that the calculation of the final pay claim damages was

reasonable because it “assumed that the maximum 30-day waiting time penalty [applied]

for every terminated Class Member in the three-year statute of limitations.” Id. at 18.

Again, defendants argue that plaintiff's “at times” and “some of them” arguments are

incorrect, because these were pled in the alternative and all class members are “in play”

for this claim. Id. at 18. Defendants argue that courts usually apply a 100 percent

violation rate to direct and derivative waiting time penalty claims because “the recovery

of waiting time penalties does not hinge on the number of violations committed; rather

[defendants] ‘need only have caused and failed to remedy a single violation per employee

for waiting time penalties to apply.’” Id. at 19 (citing Noriesta v. Konica Minolta Bus.

Solutions U.S.A., No. 19-CV-0839-DOC-SPX, 2019 WL 7987117, at *6 (C.D. Cal. June

21, 2019); Wilcox v. Harbor UCLA Med. Ctr. Guild, Inc., 2023 WL 524626 (C.D. Cal.

Aug. 14, 2023); additional citations omitted). Because the language of the complaint

does not prevent plaintiff from seeking maximum waiting time penalties for every class

member who was terminated, defendants argue, the maximum waiting time penalties are

in controversy. Id. at 20.

Defendants argue that their estimate of attorneys’ fees is also reasonable because

an estimate of 2,000 hours to litigate a class action through trial is conservative and

because in other actions, plaintiff's counsel has “repeatedly presented to courts in fee

motions in class actions that hourly rates for attorneys at his firm range from $450 to

$800.”° Id. at 20-21. The estimate of a minimum of $1 million in attorneys’ fees is

reasonable based on plaintiffs counsel’s history, according to defendants. Id. at 21.

Finally, defendants argue that even if only one fourth of the amount originally

calculated by defendants was used, the amount in controversy for CAFA jurisdiction

would still be satisfied. Id. at 21-22.

In reply, plaintiff contends first that defendants misstate the relevant legal standard

by citing authority that that pertains only to cases discussing the standard for considering

3 The Court agrees with defendants that judicial notice of court filings of the kind

proffered in defendant’s Exhibits C-G, dkts. 18-5-18-9, is proper pursuant to Federal

Rule of Evidence 201, but the Court concludes that because attorneys’ fees are to be

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

a notice of removal before a challenge by a motion to remand. Reply at 2. Plaintiff

contends that she mounts a factual attack on defendants’ Notice of Removal, rather than a

facial attack because she challenges the truth of defendants’ plausible allegations and

claims that defendants misinterpret her complaint. Id. (citing Salter, 974 F.3d at 965).

Plaintiff argues that defendants admit the Salter court’s judgment was limited to when

removal is challenged on the grounds that defendant’s assumptions of violation rates

were not backed by evidence that would support summary judgment and that defendants

goes on to assert a different standard which is no longer applicable when a notice of

removal is challenged by a motion to remand. Id. at 2-3 (citing Opp. at 7). Plaintiff

contends that Dart Cherokee and Arias apply only in the context of notices of removal.

Id. at 3. Since the amount in controversy is not clear from the face of the complaint,

plaintiff argues, defendants must produce evidence of the kind that would refute a motion

for summary judgment. Id. (citing Rodriguez v. US Bank Nat’] Ass’n, No. 16-CV-

05590-CAS-RAOX, 2016 WL 5419403, at *4 (C.D. Cal. Sept. 26, 2016)). Plaintiff

argues that because she specifically challenges defendants’ calculations in her motion to

remand and in this reply, defendants are required to meet the summary judgment

evidence standard of proof.

Plaintiff argues that defendants do not show that the language of her complaint

supports their assumptions. Id. at 4. Plaintiff argues that her class allegations do not

provide a basis for alleging specific violation rates and that references to a continued

course of conduct in a complaint have been held not to change the complaint’s

overarching allegations of sporadic and intermittent practices. Id. at 4-5. Plaintiff

restates her argument regarding her claims that defendants “at times” failed to pay full

wages owed to class members “or some of them” on termination and that “at times” wage

statements provided to class members “or some of them” did not accord with the law. Id.

at 6. Plaintiff contends that defendants do not distinguish the authority she presents in

her motion for the proposition that assuming a 100 percent violation rate when such

language is used is unreasonable. Id. Plaintiff argues that defendants fail to provide a

reasonable basis for the assumptions it makes. Id. at 7. It is defendants’ burden, plaintiff

contends, to establish the amount in controversy, and defendants here “ha[ve] failed to

first come forward with sufficient, competent evidence to meet [their] initial burden,”

calculated as a portion of damages, and the Court has not found that defendants’ damages

calculation is reasonable in this case, the Court does not find that these exhibits establish

defendants’ attorneys’ fees estimate.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

thus plaintiff does not have to rebut defendants “conjectures with her own evidence to

prevail on this Motion.” Id. at 8.

Plaintiff next argues that the PAGA letter to which defendants cite is irrelevant

because plaintiff asserts no PAGA claims. Id. at 9. Plaintiff restates its argument that

defendants have access to the relevant records and could produce evidence for their

assertions. Id. According to plaintiff, the declarations provided by defendants are

insufficient to support the violation rates they allege, which “amounts to a tacit admission

that |[d]efendant|s| ha[ve] no evidence supporting [their] assertions regarding their

purported violation rates.” Id. Plaintiff argues that defendants need reasonable ground

underlying their assumptions, pursuant to Ibarra. Id. (citing Ibarra, 775 F.3d at 1199).

Plaintiff also contends that defendants’ argument with respect to attorneys’ fees is

incorrect because fees would be a percentage of an amount in controversy that defendants

have thus far failed to establish and that past requests for fees are irrelevant. Id. at 10.

Plaintiff argues that the Court is also restricted to looking to attorneys’ fees accrued prior

to removal when determining amount in controversy. Id. (citing Carranza v. Nordstrom,

Inc., No. 14-CV-01699-MMM-DTBX, 2014 WL 10537816, at *17 (C.D. Cal., Dec. 12,

2014)). Finally, plaintiff argues that defendants’ willingness to reduce their assumptions

to one quarter of what they originally claimed was in controversy shows that the original

assumptions had no basis. Id. at 11-12.

Defendants removed this action pursuant to CAFA. As stated above, CAFA gives

federal courts jurisdiction over certain class actions if (1) “the class has more than 100

members”; (2) “the parties are minimally diverse”; and (3) “the amount in controversy

exceeds $5 million.” Dart Cherokee, 574 U.S. at 84-85. Here, plaintiffs appear to concede

that the parties are minimally diverse and that the proposed class contains more than 100

members. See generally Mot. Accordingly, the Court addresses only whether defendant

has adequately established that the “amount in controversy exceeds $5 million.”

Plaintiff argues that defendant has failed to establish that the amount in

controversy exceeds $5 million. “In measuring the amount in controversy, a court must

‘assum|[e] that the allegations of the complaint are true and assume that] a jury [will]

return| | a verdict for the plaintiff on all claims made in the complaint.’” Kenneth

Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal.

2002) (quoting Jackson v. American Bankers Ins. Co. of Florida, 976 F. Supp. 1450,

1454 (S_D. Ala. 1997)); see also Coleman v. Estes Express Lines, Inc., 730 F. Supp. 2d

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

1141, 1148 (C_D. Cal. Jul. 19, 2010) (“In deciding the amount in controversy, the Court

looks to what the plaintiff has alleged, not what the defendants will owe’). “[W]hen the

defendant’s assertion of the amount in controversy 1s challenged by plaintiffs in a motion

to remand, the Supreme Court has said that both sides submit proof and the court then

decides where the preponderance lies.” Ibarra, 775 F.3d at 1198. Under this system, the

removing party bears the burden of demonstrating that the CAFA amount in controversy

requirement is met, but may “rely on reasonable assumptions to prove that it has met the

statutory threshold.” Harris, 980 F.3d at 701 (citing Ibarra, 775 F.3d at 1197; Arias, 936

F.3d at 922).

The Court concludes that plaintiff's challenge is properly considered a factual

challenge to defendants’ notice of removal because it is in the form of a challenge to the

allegations made in the Notice of Removal, rather than an assertion that allegations made

by defendant and accepted by plaintiff as true are insufficient to invoke federal

jurisdiction. Salter, 974 F.3d at 964. Like the plaintiff in Harris v. KM Industrial, Inc.,

plaintiff here challenged the assumptions made by defendants regarding how many class

members suffered each violation, arguing that defendants’ calculation of the amount in

controversy was inflated on the basis of these unfounded assumptions. 980 F.3d 694. In

Harris, the Ninth Circuit determined that plaintiff raised a factual challenge when he

argued that defendant made an unfounded assumption that all employees in the entire

class were members of defined meal and rest period violation subclasses, calculating

damages for each of these violations based on an assumption that the violation rate was

one missed meal period and one missed rest period for every class member. Id. at 700-

701. Similarly, here, plaintiff challenges defendants’ assumptions regarding violation

rates, contending that they were wrong to assume “that every single putative class

member missed one meal and rest period per work week; that every single class member

worked for 30 minutes off the clock each work week; and that [d]efendants committed

certain Labor Code violations at an overwhelming 100% violation rate.” Mot. at 4 (citing

Notice of Removal {ff 30, 41, 47) (emphasis omitted). The Court finds that plaintiff's

challenge to defendants’ Notice of Removal is, like Harris’s challenge, properly

considered a factual challenge. Accordingly, defendants bear the burden to show, by a

preponderance of the evidence, that the $5 million amount in controversy threshold is

met. Ibarra, 775 F.3d at 1197 (citing Dart, 574 U.S. at 88-89).

The Court finds that though authority in this Circuit suggests that defendants have

not presented sufficient evidence to meet their burden on four of the five claims they

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

address, the Ninth Circuit has specifically approved the kind of assumptions made by

defendants on the waiting penalty claim. This claim alone satisfies the CAFA amount in

controversy requirement.

The Ninth Circuit has said that “a damages assessment may require a chain of

reasoning that includes assumptions,” but that “[w]hen that is so, those assumptions

cannot be pulled from thin air but need some reasonable ground underlying them.” Id. at

1199. Here, defendants have made assumptions about violation rates pertaining to five

claims of the complaint’s nine claims for which they offer amount in controversy

calculations, but provide no information as to why the assumptions are reasonable nor do

they allege the likely violation rates based on evidence. While courts in this Circuit have

determined that when “a defendant must prove the amount in controversy by a

preponderance of the evidence, a declaration or affidavit may satisfy the burden,” Ray v.

Wells Fargo Bank, N.A., No. 11-CV-01477-AHM-JCX, 2011 WL 1790123, at *6 (C.D.

Cal. May 9, 2011), declarations as sparse as the Magana declaration submitted by

defendant have been found insufficient, Garibay v. Archstone Communities, 539 F.

App’x 763, 764 (9th Cir. 2013) (holding insufficient a declaration by a payroll officer

setting forth “only the number of employees during the relevant period, the number of

pay periods, and general information about hourly employee wages”’); Rodriguez v.

Rentokil N. Am., Inc., No. 8:24-CV-01356-DOC-DFM, 2024 WL 4467517, at *4 (C.D.

Cal. Oct. 10, 2024) (concluding that a declaration including the number of defendant’s

non-exempt employees, how many were terminated since the relevant date, employees

“typical work schedule,’” and that employees were always paid at least minimum wage

was insufficient to determine why violation rates were reasonable); Arnett v. Traditions

Health LLC, No. 23-CV-2324-JGB-SHKX, 2024 WL 289916, at *4 (C.D. Cal. Jan. 24,

2024) (finding that meal break and rest period damages calculations lacked sufficient

basis where the relevant declaration provided “estimates for the number of employees,

workweeks and average hourly wages,” but did “not specify what violation rates would

be appropriate according to the records she reviewed”).

Here, defendants’ proffered declaration by Alma Magana, Senior Director of

Payroll Operations at Vestis Services, LLC, states that “there are at least 3,512 current

and former employees who worked at least 222,824 workweeks” during the relevant

period and that their “average hourly rate of pay was $19.03 during this period.” Magana

Decl. § 3. Magana’s declaration also states how many employees received how many

wage statements, and how many employees were terminated during the relevant period

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

and what their average rate of pay was. Id. 4-5. Defendants provide no other basis for

the assumed violation rates proffered in their Notice of Removal. Accompanying their

opposition, defendants also provide the declaration of Mikaela Davis, the Director of

Human Resources at Vestis Services, LLC. Dkt. 18-1 (“Davis Decl.”). Davis states that

California non-exempt employees are all or nearly all full-time employees” and

that they “generally work a five day a week, eight hour a day schedule, at a minimum.”

Davis Decl. § 4. Pursuant to the above cited authority, these declarations would not

provide a sufficient basis for the violation rates that defendants assume in their Notice of

Removal, nor do defendants explain how they reached the assumed violation rates

extrapolating from these underlying facts. Courts have concluded that “a defendant may

establish the amount in controversy by relying on admissible statistical evidence taken

from a representative sample and extrapolated to calculate the potential liability for the

full class.” Duberry v. J. Crew Grp., Inc., No. 14-CV-08810-SVW-MRW, 2015 WL

4575018, at *2 (C.D. Cal. July 28, 2015) (citing LaCross v. Knight Transp. Inc., 775 F.3d

1200, 1202-03 (9th Cir. 2015)). Here, defendants do not seem to provide a representative

sample, nor do they explain how they have extrapolated from such a sample to calculate

the relevant violation rates and resulting damages.

Additionally, they do not explain in opposition how the assumed rates were

reached, other than to say other courts have held the assumed violation rates to be

reasonable. However, a mere assertion that the assumed violation rate has been found

reasonable in other cases does not mean that it is reasonable in this context, without some

factual basis to underlie such an assumption. Arnett, 2024 WL 289916, at *5 (finding that

defendant identifying other cases where courts have accepted a twenty percent violation

rate does not substitute for a sufficient explanation or evidence of why such an

assumption makes sense in the instant case): see also Peters v. TA Operating LLC, No.

22-CV-1831-JGB-SHKX, 2023 WL 1070350, at *9 (C_D. Cal. Jan. 26, 2023)

(concluding that the issue with an assumed violation rate was “not necessarily that

[d]jefendants picked a violation rate that is too high,” rather “that the Court cannot discern

why it picked that number at all, because [d]efendants never adequately explain their

chain of reasoning and certainly provide no real evidence in support of it”). Defendants

also do not address the fact that plaintiff defined specific subclasses pursuant to specific

provisions of California law, assuming that all members of the putative class are also

members of each subclass for the purposes of their calculations, an assumption the Ninth

Circuit has said cannot be made without providing some evidentiary basis. Harris, 980

F.3d at 701-702 (holding that “[defendant’s failure] to produce any proof that the

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

members of the Hourly Employee Class and the two subclasses were the same and that

they all worked shifts long enough to qualify for meal and rest periods ... rendered

|defendant]’s assumptions unsupported and unreasonable”).

On the final wage claim for waiting time penalties, the Ninth Circuit, in contrast to

the above authority pertaining to the four other claims addressed by defendants in their

Notice of Removal, has approved the kind of assumptions made by defendants in their

calculations, even without a comprehensive explanation of those assumptions. In

Jauregui v. Roadrunner Transportation Services, Inc., the Ninth Circuit specifically

deemed reasonable the assumption that all class members suffered the maximum thirty-

day waiting time penalty. 28 F.4th 989, 994. There, the court concluded that “it was not

unreasonable for [defendant] to assume that the vast majority (if not all) of the alleged

violations over the four years at issue in this case would have happened more than 30

days before the suit was filed, which would entitle the employees to the 30-day penalty.”

Id. Here, defendants do not explain their assumption that all putative class members

suffered the maximum waiting time penalty; however, the Ninth Circuit does not require

such an explanation for damages calculations on this claim, assuming their

reasonableness based on the time period that must have passed between termination and

the filing of suit. In its Notice of Removal, defendant cites to Ford v. CEC Entm’t, Inc.,

for its proposition that “[a]ssuming a 100% violation rate is thus reasonably grounded in

the complaint ... [b]ecause no averment in the complaint supports an inference that these

sums were ever paid.” Notice of Removal § 47 (citing No. 14-CV-01420-RS, 2014 WL

3377990, at *3 (N.D. Cal. July 10, 2014)). Based on the Ninth Circuit’s holding in

Jauregui, the Court concludes that assumptions made pursuant to this claim are

reasonable, despite the lack of evidence and explanation provided, and that, accordingly

at least $6,410,448 is in controversy on the basis of this claim alone. Id.

The Court finds, therefore, that though authority in this Circuit provides that in the

case of a factual challenge, a defendant must present summary judgment style evidence to

show that assumptions made meet the applicable preponderance standard, the Ninth

Circuit has specifically approved the kind of assumptions made by defendants on their

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘oO’

Case No. 2:24-cv-06238-CAS (PDx) Date December 9, 2024

Title Samantha Shaunee Brown v. Western First Aid & Safety et al.

final wages claim. Even if other claims do not meet the requisite evidentiary standard,

the amount in controversy for the final wages claim alone is greater than $5 million.

Accordingly, the Court finds that remand is unwarranted in this case and DENIES

plaintiff's motion to remand.

V. CONCLUSION

In accordance with the foregoing, the Court DENIES plaintiff's motion to remand

the case to the Los Angeles Superior Court.

The Court takes the motion to dismiss under submission. The Court will hold a

hearing on the motion to dismiss 1f necessary.

IT IS SO ORDERED.

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Initials of Preparer CMJ