Opinion
Case No. CV 15-0016 FMO (AJWx)
01-28-2015
JORGE RODRIGUEZ, Plaintiff, v. SCRIPPS MEDIA, INC. d/b/a VENTURA COUNTY STAR, Defendant.
ORDER REMANDING ACTION
On November 12, 2014, Jorge Rodriguez ("plaintiff") filed a Complaint in the Superior Court of the State of California for the County of Los Angeles against Scripps Media, Inc. ("defendant"); Does 1 through 10, business entities with unknown names; Does 11 through 20, individuals; and Does 21 through 30, inclusive. (See NOR at ¶¶ 3-5; Complaint at ¶¶ 1 & 9-10). The Complaint arises from plaintiff's employment with defendant from January 11, 2012, until August 21, 2014. (See Complaint at ¶¶ 20-21). On January 2, 2015, defendant removed the action on diversity jurisdiction grounds pursuant to 28 U.S.C. §§ 1332 and 1441. (See NOR at ¶ 1).
Initially, plaintiff erroneously sued Ventura County Star, an unknown entity, and Scripps Media, Inc. He subsequently amended the Complaint to identify Scripps Media, Inc. d/b/a Ventura County Star as the defendant. (See Notice of Removal ("NOR") at ¶ 5; id., Exhibit ("Exh.") A (Complaint and state court filings), Complaint at ¶¶ 8-9 & Dec. 18, 2014, Amendment to Complaint).
Having reviewed the pleadings, the court hereby remands this action to state court for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c); Kelton Arms Condominium Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) ("Subject matter jurisdiction may not be waived, and, indeed, we have held that the district court must remand if it lacks jurisdiction."); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) ("Federal Rule of Civil Procedure 12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on appeal."); Washington v. United Parcel Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court may remand an action where the court finds that it lacks subject matter jurisdiction either by motion or sua sponte).
Title 28 U.S.C. § 1447(c) provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."
A removing defendant bears the burden of establishing that removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) ("The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.") (internal quotation marks omitted). Moreover, if there is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court. See id. ("Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.").
Here, the court's review of the Notice of Removal and the Complaint makes clear that this court lacks diversity jurisdiction over the instant matter. In other words, plaintiff could not have originally brought this action in federal court, in that plaintiff does not competently allege facts supplying diversity jurisdiction, and therefore removal was improper. See 28 U.S.C. §§ 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) ("Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.") (footnote omitted).
Title 28 U.S.C. § 1441(a) provides that:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
There is no basis for diversity jurisdiction because the amount in controversy does not appear to exceed the diversity jurisdiction threshold of $75,000. See 28 U.S.C. § 1332. As an initial matter, the amount of damages plaintiff seeks cannot be determined from the Complaint as it does not set forth a specific amount. (See, generally, Complaint at 15, Prayer). Defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold, see Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam), and for the reasons set forth below, it has failed to do so. I. OVERTIME CLAIM.
In relevant part, 28 U.S.C. § 1332(a) provides that "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs."
Plaintiff alleges that defendant: "failed and refused to properly calculate overtime compensation"; "routinely and systematically failed to properly record accurate time records"; and "routinely and systematically failed to pay plaintiff for the premium pay for all of plaintiff's overtime hours[.]" (See Complaint at ¶¶ 33-36). Defendant asserts that plaintiff's claim for overtime wages owed under California Labor Code § 1194(a) amounts to $19,570.40. (See NOR at ¶ 15(a)). To arrive at this figure, defendant estimated plaintiff's hourly pay rate to be $19.19 based on his earnings of $104,396.30 over 136 weeks at 40 hours per week ($104,396.30 / 136 / 40 = $19.19), (see Declaration of Justine Han [Director of Human Resources for Scripps Media Inc.] in Support of Notice of Removal ("Han Decl.") at ¶ 4), and assumed that plaintiff worked one hour in excess of eight hours per work day, i.e., five hours of overtime per week, at one and one-half (1.5) times his regular pay rate, for all 136 weeks plaintiff worked for defendant (($19.19 x 1.5) x 5 x 136). (See NOR at ¶ 15(a)).
Defendant's assumptions are unreasonable as there no basis in the Complaint or elsewhere in the record to support those assumptions. (See, generally, Complaint, NOR & Han Decl.). For example, defendant's assumption with respect to plaintiff's hourly rate (i.e., $19.19 per hour) appears inflated because plaintiff alleges that "at all relevant times herein, [plaintiff] was entitled to an hourly pay rate of approximately $17.00-$18.00 per hour." (See Complaint at ¶ 26). Also, plaintiff has not pled with any specificity when or how often he was not paid for all hours worked. (See, generally, Complaint at ¶¶ 32-44). Defendant's speculation that plaintiff worked one hour in excess of eight hours each work day throughout his tenure is insufficient. See Jimenez v. Menzies Aviation, Inc., 2013 WL 1411228, *3 (N.D. Cal. 2013) ("the Court cannot credit Defendants' speculative damages estimate" where they "failed to provide evidence supporting their assertion" that plaintiff was entitled to one hour of overtime per day, five days a week); Willis v. Xerox Bus. Servs., LLC, 2013 WL 6053831, *5 (E.D. Cal. 2013) ("Defendants have not explained why it is proper to assume Plaintiff seeks 15 hours a week in overtime[.] . . . [T]his is insufficient."). Under the circumstances, the court finds defendant has failed to show by a preponderance of the evidence the amount in question with respect to plaintiff's overtime claim. Without more, the court is unwilling to include plaintiff's damages for his overtime claim in the amount in controversy. II. WAITING TIME PENALTY.
Plaintiff alleges that "[u]pon termination of [his] employment relationship, defendant[] . . . willfully failed and refused to timely pay to plaintiff, pursuant to [California] Labor Code §§ 201(a) and 202(a), . . . all wages earned[.]" (See Complaint at ¶ 75). He alleges that he is entitled, under California Labor Code § 203, to "recover waiting time penalties, calculated as a continuance of plaintiff's wages from the due date of the wage at the same rate until paid or until an action therefore is commenced, up to and including 30 days." (Id. at ¶ 79).
In relevant part, California Labor Code § 203(a) provides:
If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall
not continue for more than 30 days.
Defendant argues plaintiff is entitled to $4,605.60 in penalties under § 203, i.e., "full waiting time penalties of 30 days' pay[,]" (i.e., $19.19 x 8 x 30). (See NOR at ¶ 19(a)). Defendant does not supply the basis for its assumption that plaintiff is entitled to the maximum 30-day penalty, (see, generally, id. at ¶ 19(a) & Han Decl.), and the Complaint does not support this assumption. (See, generally, Complaint at ¶¶ 74-80). Defendant has not shown by a preponderance of the evidence the amount placed in controversy relating to plaintiff's waiting time claim. See Garibay v. Archstone Communities LLC, 539 F.App'x 763, 764 (9th Cir. 2013) (district court properly found defendant had not met its burden to prove by preponderance of the evidence plaintiffs' waiting time penalties where it "assume[d] that each employee would be entitled to the maximum statutory penalty, but provide[d] no evidence supporting the assertion."); Letuligasenoa v. Int'l Paper Co., 2014 WL 2115246, *8 (N.D. Cal. 2014) ("Defendants assume that each employee would be able to recover the maximum thirty days of penalties. Defendants have pointed to no statements by Plaintiff nor evidence in their own possession to support these assumptions."). III. 'CLAIMS' FOR MEAL AND REST PERIODS.
Plaintiff does not assert claims for defendant's failure to provide meal and rest periods. (See, generally, Complaint at ¶¶ 31-91). Defendant nevertheless argues that plaintiff does assert these claims because: (1) plaintiff incorporates by reference his letter to the California Labor and Workforce Development Agency ("LWDA"), (see NOR at ¶ 20; Complaint at ¶ 2), which alleged that he was not permitted to take meal and rest breaks and was not paid premium pay as required by California Labor Code §§ 226.7 and 512, (see Complaint, Exh. A, Oct. 8, 2014, letter from plaintiff's counsel to the LWDA ("LWDA letter") at 2); and (2) the Complaint seeks "[d]amages for meal premiums not paid to plaintiffs [sic] in an amount to be determined at trial[.]" (See NOR at ¶ 20; Complaint at 15, Prayer).
Rule 8(a) of the Federal Rules of Civil Procedure states that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." A claim is the "aggregate of operative facts which give rise to a right enforceable in the courts." Bautista v. Los Angeles Cnty., 216 F.3d 837, 840 (9th Cir. 2000). "To comply with Rule 8 each plaintiff must plead a short and plain statement of the elements of his or her claim, identifying the transaction or occurrence giving rise to the claim and the elements of the prima facie case[.]" Id. Pursuant to Rule 10(b) "[a] party must state its claims or defenses in numbered paragraphs[.]" Under Rule 10(b), each claim must be "stated in a separate count because a separation facilitates the clear presentation of the matters set forth." Bautista, 216 F.3d at 840.
Unless otherwise noted, references to "Rule" are to the Federal Rules of Civil Procedure.
Plaintiff plainly does not assert any claims for rest and meal break violations in compliance with Rules 8(a) and 10(b). (See, generally, Complaint). Although Rule 10(c) provides that "[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes[,]" the court is not aware of any authority - and defendant has not provided any, (see, generally, NOR at ¶¶ 20-21) - that district courts must impute claims that were not set forth in the pleadings. Given that any doubt regarding the existence of subject matter jurisdiction must be resolved in favor of remanding the action to state court, see Gaus, 980 F.2d at 566, the court is not persuaded that it should consider the value of claims that are not set forth in the operative complaint.
Even assuming, arguendo, that plaintiff has properly asserted claims for meal and rest period violations, defendant's estimate that each claim puts $13,049.20 in controversy, (see NOR at ¶¶ 20-21), is unsupported by any factual allegation or other evidence. Defendant assumes without any basis that the alleged violations occurred daily, i.e., plaintiff was deprived a meal period and a rest period every work day for 136 weeks. Defendant's speculation is unreasonable and insufficient to carry its burden. See Garibay, 539 F.App'x at 764 (burden not met where defendant "failed to provide any evidence regarding why the assumption that each employee missed two rest periods per week was more appropriate than one missed rest period per paycheck or one missed rest period per month."); Roth v. Comerica Bank, 799 F.Supp.2d 1107, 1120 (C.D. Cal. 2010) (finding "the suggestion that each class member missed one to three meal or rest periods per week . . . entirely unsupported in the record."); Letuligasenoa, 2014 WL 2115246, at *5-6 (finding that the assumption that every class member was denied a meal break and a rest break every single work day was speculative). IV. PAGA PENALTIES.
Plaintiff alleges that defendant committed numerous violations of the California Labor Code entitling him to penalties under the Private Attorney General Act of 2004 ("PAGA"), Cal. Labor Code §§ 2698, et seq. (See Complaint). In relevant part, PAGA states:
Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.Cal. Labor Code § 2699(a). PAGA further provides that "[f]or all provisions of this code except those for which a civil penalty is specifically provided," the aggrieved employee may seek civil penalties of "one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation" against an employer who employs more than one employee. Id. at § 2699(f).
Here, plaintiff seeks penalties for: (1) overtime violations, Cal. Labor Code § 558, (see Complaint at ¶¶ 40-41 & 43-44); (2) failure to maintain records, Cal. Labor Code §§ 1174(c)-(d) & 1174.5, (see id. at ¶¶ 46, 48 & 52); (3) failure to provide accurate itemized statements, Cal. Labor Code §§ 226(a), 226(e)(1) & 226.3, (see id. at ¶¶ 57, 59-60 & 63); (4) failure to pay wages on regularly established paydays, Cal. Labor Code §§ 204 & 210, (see id. at ¶¶ 68-69 & 72); and (5) failure to pay all wages at discharge. (See id. at ¶¶ 79-80).
Defendant estimates that plaintiff seeks penalties of at least $36,150. (See NOR at ¶ 15(b) ($2,250 penalty for overtime claim recoverable through PAGA); id. at ¶ 16 ($500 penalty for failure to maintain records in violation of Cal. Labor Code § 1174.5); id. at ¶ 17(a) ($2,050 penalty for failure to maintain accurate itemized statements); id. at ¶ 17(b) ($4,500 PAGA penalty for § 226(e) violation); id. at ¶ 17(c) ($22,250 civil penalty, recoverable through PAGA); id. at ¶ 18 ($4,500 for failure to pay wages on regular paydays, recoverable through PAGA); id. at ¶ 19 ($100 PAGA penalty for waiting time claim)). Its estimate is subject to a number of serious flaws.
First, defendant assumes that the total PAGA recovery should be considered in determining the amount in controversy, (see NOR at ¶¶ 15(b) & 16-19), despite the fact that the statute provides that 75 percent of the recovery must go to the Labor and Workforce Development Agency ("LWDA"), leaving only 25 percent for "aggrieved employees." See Cal. Labor Code § 2699(i) ("[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws and education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes; and 25 percent to the aggrieved employees."); see Pulera v. F & B, Inc., 2008 WL 3863489, *4 (E.D. Cal. 2008) ("The amounts recoverable by Plaintiff based on his PAGA claims are separate and distinct from the amounts recoverable by the State of California via the LWDA, and therefore these amounts may not be aggregated."); Willis, 2013 WL 6053831 at *9 ("The 75 [percent] awarded to the state is not considered to be an amount in controversy for jurisdictional purposes.") (internal citation omitted); see also Urbino v. Orkin Servs. of California, Inc., 726 F.3d 1118, 1122-23 (9th Cir. 2013) (in individual PAGA action removed on diversity grounds, court reversed denial of motion to remand, and held that "[t]o the extent Plaintiff can - and does - assert anything but his individual interest, . . . we are unpersuaded that such a suit, the primary benefit of which will inure to the state, satisfies the requirements of federal diversity jurisdiction."); but see Patel v. Nike Retail Servs., Inc., 2014 WL 3611096, *13 (N.D. Cal. 2014) ("the entire amount of PAGA penalties attributable to [plaintiff's] claims count towards the amount in controversy."). The court is persuaded that the portion of any PAGA penalties plaintiff may collect is "separate and distinct" from the portion recoverable by the LWDA, and thus is not properly considered part of the amount in controversy . See Pulera, 2008 WL 3863489 at *4. Thus, even assuming defendant has correctly tallied plaintiff's PAGA penalties, the penalties place in controversy only 25 percent of defendant's figure.
The court acknowledges the split in authority but ultimately finds the reasoning of Pulera and Willis more persuasive. See Willis, 2013 WL 6053831 at *8 (finding that Urbino laid to rest the question in holding "that the interest of the LWDA cannot be considered in determining whether a plaintiff has demonstrated that the amount in controversy exceeds $75,000.").
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Second, defendant assumes a 100 percent violation rate for all PAGA and statutory penalties during the applicable statute of limitations period. (See, e.g., NOR at ¶ 15(b)) ($2,250 in penalties for overtime violations based on initial violation ($50) and subsequent violations ($100) for 22 pay periods during one year preceding plaintiff's LWDA letter); (id. at ¶ 17(a)) ($2,050 in penalties for failure to provide accurate itemized records based on initial violation ($50) and subsequent violations ($100) for 20 pay periods during one year preceding plaintiff filing Complaint); (id. at ¶ 17(b)) ($4,500 in penalties for failure to provide accurate itemized records based on initial violation ($100) and subsequent violations ($200) for 22 pay periods during one year preceding plaintiff's LWDA letter); (id. at ¶ 17(c)) ($22,500 in penalties for failure to provide accurate itemized records based on initial violation ($250) and subsequent violations ($1000) for 22 pay periods during one year preceding plaintiff's LWDA letter); (id. at ¶ 18) ($4,500 in penalties for failure to pay wages on regularly established paydays based on initial violation ($100) and subsequent violations ($200) for 22 pay periods during one year preceding plaintiff's LWDA letter). Nowhere does defendant support its 100 percent violation rate assumption with citation to the Complaint or other evidence. (See, generally, NOR at ¶¶ 15-19). "[C]ourts disavow the use of a 100 [percent] violation rate when calculating the amount in controversy absent evidentiary support." Moreno v. Ignite Restaurant Group, 2014 WL 1154063, *5 (N.D. Cal. 2014); see Garibay, 539 F.App'x at 764 (defendant did not satisfy preponderance of the evidence standard where it assumed, without evidence, that class members would be entitled to recover penalties for violations of employer's obligation to keep accurate itemized wage statements for every pay period); Letuligasenoa, 2014 WL 2115246 at *5-6 (rejecting application of 100 percent violation rate where unsupported by the record).
Third, defendant's estimate is problematic because it fails to supply a basis for its assumption that it will be liable for 'subsequent' violations of the Labor Code. In order for plaintiff to recover for 'subsequent' violations, he must show that defendant was on notice about the violations. See Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1209 (2008) ("Until the employer has been notified that it is violating a Labor Code provision (whether or not the Commissioner or court chooses to impose penalties), the employer cannot be presumed to be aware that its continuing underpayment of employees is a 'violation' subject to penalties. However, after the employer has learned its conduct violates the Labor Code, the employer is on notice that any future violations will be punished just the same as violations that are willful or intentional - i.e., they will be punished at twice the rate of penalties that could have been imposed or that were imposed for the initial violation."); Jimenez, 2013 WL 1411228 at *4 ("Courts have held that 'subsequent' violations in the PAGA context means not just later in time but following notice to the employer that it is in violation of the Labor Code") (collecting cases). Defendant has not provided any evidence that it was on notice about the violations plaintiff alleges. (See, generally, NOR). Moreover, the Complaint discloses no facts suggesting defendant was notified of any Labor Code violations before plaintiff's separation from his employment there. (See, generally, Complaint); (see also id. at ¶¶ 21 & 29) (plaintiff separated from employment on August 21, 2014, and sent defendant letter requesting to inspect employment records and personnel file on October 7, 2014). Thus, defendant has not met its burden as to any 'subsequent' violations of the Labor Code. See Willis, 2013 WL 6053831 at *7 (burden not met where "Plaintiff did not allege a factual basis for the claim that subsequent violation-penalties may be imposed[,]" and "Defendant does not proffer any reason to believe that subsequent violation-penalties may be imposed.").
Finally, defendant suggests that plaintiff can seek two distinct penalties for its failure to provide accurate itemized statements in violation of California Labor Code § 226(a): (1) $2,050 pursuant to § 226(e) and (2) $4,500 pursuant to the PAGA § 2699(f)(2). (See NOR at ¶¶ 17(a)-(b)). Section 226(e) provides, in relevant part, that "[a]n employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000)[.]" Cal. Labor Code § 226(e). The PAGA establishes a penalty scheme "[f]or all provisions of this code except those for which a civil penalty is specifically provided[.]" Cal. Labor Code § 2699(f) (emphasis added). Thus, there is no basis for plaintiff to recover penalties under the PAGA § 2699(f)(2) in addition to the penalties provided for in § 226(e) for a violation of § 226(a). See Li v. A Perfect Day Franchise, Inc., 2012 WL 2236752, *17 (N.D. Cal. 2012) ("granting PAGA penalties for failure to provide accurate wage statements [in addition to penalties under § 226] would be duplicative recovery. Plaintiffs have provided no authority, and the Court is aware of no authority, that would permit double recovery of essentially the same penalties. Therefore, the Court declines to award PAGA penalties for the failure to provide accurate wage statements as this penalty has already been awarded."). Defendant double-counted its penalty liability for any violation(s) of California Labor Code § 226(a).
In short, defendant greatly overstated its potential liability for penalties under the PAGA. At best, based on the Complaint and Notice of Removal, the court estimates that plaintiff's claims for penalties place $262.50 in controversy, i.e., 25 percent of: $50 for defendant's initial violation of California Labor Code § 558, (see NOR at ¶ 15(b)), $500 for defendant's violation of California Labor Code § 1174.5, (id. at ¶ 16), $50 for defendant's initial violation of California Labor Code § 226(a), (id. at ¶ 17(a)), $250 for defendant's initial violation of California Labor Code § 226.3, (id. at ¶ 17(c)), $100 for defendant's initial violation of California Labor Code §§ 204 and 210, (id. at ¶ 18), and $100 for defendant's violation of California Labor Code § 203 (0.25 x (50 + 500 + 50 + 250 + 100 + 100)). (Id. at ¶ 19(b)) . V. ATTORNEY'S FEES.
Plaintiff seeks attorney's fees under Cal. Labor Code § 1194(a). (See Complaint at ¶ 39). "[W]here an underlying statute authorizes an award of attorneys' fees, either with mandatory or discretionary language, such fees may be included in the amount in controversy." Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998). Defendant asserts that "it is reasonable to estimate attorneys' fees of at least $21,606.10[,]" i.e., roughly 25 percent of the estimated award. (See NOR at ¶ 23).
However, "courts are split as to whether only attorneys' fees that have accrued at the time of removal should be considered in calculating the amount in controversy, or whether the calculation should take into account fees likely to accrue over the life of the case." Hernandez v. Towne Park, Ltd., 2012 WL 2373372, *19 (C.D. Cal. 2012) (collecting cases); see Reames v. AB Car Rental Servs., Inc., 899 F.Supp.2d 1012, 1018 (D. Or. 2012) ("The Ninth Circuit has not yet expressed any opinion as to whether expected or projected future attorney fees may properly be considered 'in controversy' at the time of removal for purposes of the diversity-jurisdiction statute, and the decisions of the district courts are split on the issue."); Walker v. CorePower Yoga, LLC, 2013 WL 2338675, *6 (S.D. Cal. 2013) ("the Ninth Circuit has not decided, and district courts are split as to whether only attorneys' fees that have accrued at the time of removal should be considered in calculating the amount in controversy, or whether the calculation should take into account fees likely to accrue over the life of the cases.") (internal quotation marks omitted). The court is persuaded that "the better view is that attorneys' fees incurred after the date of removal are not properly included because the amount in controversy is to be determined as of the date of removal." Dukes v. Twin City Fire Ins. Co., 2010 WL 94109, *2 (D. Ariz. 2010) (citing Abrego v. Dow Chem. Co., 443 F.3d 676, 690 (9th Cir. 2006)). "Future attorneys' fees are entirely speculative, may be avoided, and are therefore not 'in controversy' at the time of removal." Id.; Palomino v. Safeway Ins. Co., 2011 WL 3439130, *2 (D. Ariz. 2011) ("This court agrees with the Seventh Circuit and concludes that the better view is that attorneys' fees incurred after the date of removal are not properly included in calculating the jurisdictional amount.").
Here, defendant provides no evidence of the amount of attorney's fees that were incurred at the time of removal. (See, generally, NOR). Therefore, defendant has not shown by a preponderance of the evidence that the inclusion of attorney's fees would cause the amount in controversy to reach the $75,000 threshold. See Walton v. AT&T Mobility, 2011 WL 2784290, *2 (C.D. Cal. 2011) (Declining to reach the issue of whether future attorney's fees could be considered in the amount in controversy because the defendant "did not provide any factual basis for determining how much attorney's fees have been incurred thus far and will be incurred in the future[, and] [b]ald assertions are simply not enough."); Banuelos v. Colonial Life & Acc. Ins. Co., 2011 WL 6106518, *1 (C.D. Cal. 2011) ("Defendant provides no factual basis for determining the amount of fees incurred thus far[.] . . . Thus, Defendant's inclusion of Plaintiff's attorney's fees is speculative, unsupported and cannot be included in determining the amount in controversy."); MIC Philberts Investments v. Am. Cas. Co. of Reading , Pa., 2012 WL 2118239, *6 (E.D. Cal. 2012).
CONCLUSION
In sum, given that any doubt regarding the existence of subject matter jurisdiction must be resolved in favor of remanding the action to state court, see Gaus, 980 F.2d at 566, the court is not persuaded, under the circumstances here, that defendant has met its burden of proving by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold. See Matheson, 319 F.3d at 1090 ("Where it is not facially evident from the complaint that more than $75,000 is in controversy, the removing party must prove, by a preponderance of the evidence, that the amount in controversy meets the jurisdictional threshold. Where doubt regarding the right to removal exists, a case should be remanded to state court."); Valdez, 372 F.3d at 1117. Therefore, there is no basis for diversity jurisdiction.
This order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED that:
1. The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 North Hill Stree, Los Angeles, California 90012.
2. The Clerk shall send a certified copy of this Order to the state court. Dated this 28th day of January, 2015.
/s/_________
Fernando M. Olguin
United States District Judge