Fang v. Ford Motor Company ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WANG FANG and MAI OLIVA THAO, ) Case No.: 1:22-cv-0561 JLT SAB ) 12 Plaintiffs, ) ORDER DENYING PLAINTIFF’S MOTION TO ) REMAND 13 v. ) ) (Doc. 11) 14 FORD MOTOR COMPANY, and DOES 1 ) though 10, ) 15 ) Defendants. ) 16 ) 17 Wang Fang and Mai Olivia Thao purchased a Ford Explorer that they assert was defective and 18 required a number of repair attempts to the transmission and engine. Plaintiffs seek to hold Ford 19 Motor Company liable for violations of California’s Song-Beverly Act, including breaching express 20 and implied warranties given at the time of purchase. (See generally Doc. 1-2 at 1-7.) 21 Defendants filed a Notice of Removal, asserting this Court has diversity jurisdiction under 28 22 U.S.C. § 1332. (Doc. 1.) Plaintiffs now seek to remand the matter to the state court, asserting the 23 Notice of Removal was untimely and Ford fails to show the amount in controversy requirement is 24 satisfied. (Doc. 11.) Ford opposes the motion and asserts the removal was proper. (Doc. 13.) The 25 Court finds the matter suitable for decision without oral arguments, and no hearing date will be set 26 pursuant to Local Rule 230(g) and General Order 618. For the reasons set forth below, the motion to 27 remand is DENIED. 28 /// 1 I. Background and Procedural History 2 Plaintiffs purchased a Ford Explorer, VIN 1FM5K8GT1FGA87403, on January 15, 2017. 3 (Doc. 1-2 at 4, ¶ 14; Doc. 1-4 at 2-4.) The Retail Installment Sales Contract for the vehicle indicates 4 the 2015 Ford Explorer was “used” and had 29,542 miles on it.1 (Doc. 1-4 at 2.) The RISC indicates 5 the total sale price was $57,993.32, which included a finance charge of $6,795.35. (Id.) Thus, the 6 purchase price for Plaintiffs was $51,197.97. (Id.; see also Doc. 1-1 at 4, ¶¶ 17-18.) 7 Plaintiffs contend Ford entered into warranty contracts with them regarding the Ford Explorer, 8 including an express warranty, as part of the sale of the vehicle. (Doc. 1-2 at 4, ¶ 14.) According to 9 Plaintiffs, “[d]efects and nonconformities to warranty manifested themselves within the appliable 10 express warranty period, including but not limited to transmission and engine.” (Id., ¶ 15.) Plaintiffs 11 assert that “[t]he nonconformities substantially impair the use, value and/or safety of the Subject 12 Vehicle.” (Id., ¶ 16.) Plaintiffs allege they “delivered the Subject Vehicle to an authorized [Ford] 13 repair facility for repair of the nonconformities.” (Id., ¶ 17.) They contend Ford “was unable to 14 conform the Subject Vehicle to the applicable express warranty after a reasonable number of repair 15 attempts.” (Id., ¶ 18.) Plaintiffs allege that “[u]nder the Song-Beverly act, Defendant had an 16 affirmative duty to promptly offer to repurchase or replace the Subject Vehicle at the time if failed to 17 conform the Subject Vehicle to the terms of the express warranty after a reasonable number of repair 18 attempts.” (Id., ¶ 19.) However, Plaintiffs contend Ford “failed to either promptly replace the Subject 19 Vehicle or to promptly make restitution.” (Id., ¶ 20.) 20 On March 31, 2022, Plaintiffs filed a complaint in Fresno County Superior Court, Case No. 21 22CECG00856. (Doc. 1-2.) Plaintiffs seek to hold Ford liable for: (1) breach of an express warranty, 22 (2) breach of an implied warranty, and (3) violation of the Song-Beverly Act, Section 1793.2. (Id. at 2; 23 see also id. at 4-6.) Plaintiffs indicated the court had “unlimited jurisdiction,” but did not include any 24 monetary information in their complaint. (See generally id. at 2-7.) The prayer for relief includes: (1) 25 “general, special and actual damages according to proof at trial;” (2) “recession of the purchase contract 26 27 1 Ford attached a copy of the RISC to the Notice of Removal. (Doc. 1-4.) Plaintiffs do not dispute the accuracy of the RISC or the information provided therein—including the “used” status, mileage, and purchase price—which Ford cited in 28 1 and restitution of all monies expended;” (3) “diminution in value;” (4) “incidental and consequential 2 damages according to proof at trial;” (5) “civil penalty in the amount of two times Plaintiffs’ actual 3 damages;” (6) “prejudgment interest at the legal rate; (7) “evocation of acceptance of the Subject 4 Vehicle;” (8) reasonable attorney’s fees and costs of suit;” and (9) “other and further relief as the Court 5 deems just and proper under the circumstances.” (Id. at 7-8.) 6 On May 11, 2022, Ford filed a Notice of Removal, asserting this Court has diversity 7 jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1.) Ford observes that Plaintiffs sought actual 8 damages—in the amount of $51,197.97 based upon the RISC—as well as civil penalties. (Id. at 5-6, 9 ¶¶ 21-26.) Based upon the prayer for relief, Ford calculates the total for actual damages and double 10 civil penalty is $153,593.91. (Id. at 6, ¶ 26.) With an adjustment for mileage, Ford asserts “the total 11 amount of damages is $132,286.62.” (Id. at 7, ¶ 33 [emphasis omitted].) In addition, Ford observes 12 that the Court may consider estimated attorney fees in calculating the amount in controversy, which 13 Ford indicates “will easily exceed $20,000.00.” (Id. at 6, ¶ 27.) Thus, Ford concludes the amount in 14 controversy requirement exceeds the $75,000.00 minimum required for diversity jurisdiction under 28 15 U.S.C. § 1332. (Id. at 8, ¶ 35.) 16 On May 31, 2022, Plaintiffs filed the motion to remand now pending before the Court, asserting 17 the damages calculation was flawed and removal was untimely. (Doc. 11.) Ford filed its opposition on 18 June 14, 2022 (Doc. 13), to which Plaintiffs filed a reply on June 24, 2022 (Doc. 15). 19 II. Jurisdiction 20 Removal of a case from state court to federal court is governed by 28 U.S.C. § 1441, which 21 provides in relevant part that “any civil action brought in a State court of which the district courts of the 22 United States have original jurisdiction, may be removed … to the district court of the United States for 23 the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441. This 24 statute “is strictly construed against removal jurisdiction,” and the party seeking removal “bears the 25 burden of establishing federal jurisdiction.” Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th 26 Cir. 1988) (citations omitted). 27 The district court has original diversity jurisdiction when all parties are diverse and the amount 28 in controversy exceed $75,000. 28 U.S.C. § 1332(a); see also Abrego Abrego v. Dow Chemical Co., 1 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). The presence of any single plaintiff from the 2 same state as any single defendant destroys “complete diversity” and strips the federal courts of original 3 jurisdiction over the matter. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). 4 In addition, the amount in controversy is calculated based upon “the complaint operative at the time of 5 removal and encompasses all relief the court may grant on the complaint if the plaintiff is victorious.” 6 Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 414-15 (9th Cir. 2018); see also Theis Research, Inc. 7 v. Brown & Bain, 400 F.3d 659, 662 (9th Cir. 2005) (“the amount at stake in the underlying litigation 8 … is the amount in controversy for purposes of diversity jurisdiction”). “[A]ny doubt about the right of 9 removal requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 10 1241, 1244 (9th Cir. 2009) (citing Gaus, 980 F.2d at 566). 11 When, as here, a plaintiff does not identify a specific amount in controversy in the complaint, 12 the removing party bears the burden to establish the amount in controversy at removal. Rodriguez v. 13 AT & T Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir. 2013). A notice of removal must include “a 14 plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart 15 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). If the plaintiff does not contest 16 the amount, the defendant’s calculated amount should be accepted. Id. at 88. However, if a plaintiff 17 challenges the calculation, then “both sides submit proof and the court decides, by a preponderance of 18 the evidence, whether the amount-in-controversy requirement has been satisfied.” Id. This evidence 19 may include affidavits, declarations, or other “summary-judgment-type evidence relevant to the amount 20 in controversy at the time of removal.” Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th 21 Cir. 2015) (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). The 22 party seeking to invoke the jurisdiction of the court bears the burden of supporting its jurisdictional 23 allegations with competent proof. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “[A]ny 24 doubt about the right of removal requires resolution in favor of remand.” Moore-Thomas v. Alaska 25 Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus, 980 F.2d at 566). 26 III. Discussion and Analysis 27 Plaintiffs assert the removal was untimely and Ford failed to meet its burden of proof to 28 establish diversity jurisdiction in this action. (See generally Doc. 11-1.) Ford opposes remand, 1 arguing that it timely removed the matter after receiving the RISC with purchase price information, 2 and that it carried the burden to show the amount in controversy requirement was satisfied. (Doc. 13.) 3 A. Timeliness 4 A party seeking removal must file a notice of removal within thirty days after receiving the 5 initial pleading. 28 U.S.C § 1446(b)(1). The Ninth Circuit indicated under Section 1446, the “thirty 6 day time period for removal starts to run from defendant’s receipt of the initial pleading only when 7 that pleading affirmatively reveals on its face the facts necessary for federal court jurisdiction.” 8 Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 690-91 (9th Cir. 2005). If the ground for removal is 9 not apparent in the initial complaint, a party seeking removal must file a notice of removal within 10 thirty days of receiving “an amended pleading, motion, order or other paper from which it may first be 11 ascertained that the case is one which is or has become removable.” 28 U.S.C § 1446(b)(3). 12 As noted above, Plaintiffs filed the complaint on March 21, 2022. (See Doc. 1-2 at 2.) Ford 13 filed the Notice of Removal on May 11, 2022, which was beyond the 30 days contemplated by 28 14 U.S.C § 1446(b)(1). However, Ford asserts that “[t]he Complaint does not contain any means of 15 ascertaining the amount in controversy.” (Doc. 1 at 3, ¶ 4.) Ford contends it was able to calculate the 16 amount in controversy only after “obtain[ing] a copy of the Retail Installment Sales Contract … for the 17 subject vehicle from the selling dealership Lithia Ford of Fresno” on April 11, 2022. (Id., ¶¶ 6-7.) 18 Ford notes that the RISC identified the purchase price of the vehicle, which was used to calculate the 19 amount in controversy. (Id., ¶ 7.) Thus, Ford contends the thirty-day removal period began to run with 20 the receipt of the RISC on April 11, 2022, and the removal was timely under 28 U.S.C § 1446(b)(3). 21 (Id. at 3, ¶ 4.) 22 Plaintiffs contend “the argument that a manufacturer in a Song-Beverly case had ‘no way of 23 knowing the Amount in Controversy in this lawsuit prior to receiving the RISC from the dealership’ 24 has been characterized as ‘largely implausible.’” (Doc. 11-1 at 5, quoting Danelian v. FCA US, LLC, 25 2020 WL 4697907 at *2 (C.D. Cal. Aug. 13, 2020) [modifications omitted].) Plaintiffs observe: 26 In Danelian, the court considered the defendant’s assertion of a specific amount of attorneys’ fees as well as a civil penalty of two times the plaintiff’s actual damages 27 as part of the amount in controversy in finding that the manufacturer “was aware that the purchase price was substantially higher than the minimum necessary to 28 establish the $75,000 AIC necessary for diversity jurisdiction in this context.” 1 (Id., quoting Danelian, 2020 WL 4697907 at *2.) Plaintiffs note that Ford contends the amount in 2 controversy calculation must include attorneys’ fees that “will easily exceed $20,000” and civil 3 penalties that are double the purchase price. (Id. at 6-5.) With the inclusion of fees and penalties, 4 Plaintiffs observe that “Ford’s method of calculating the amount in controversy means that the 5 purchase price of the Subject Vehicle must have been less than $18,334 for the amount in controversy 6 threshold not to have been met from the information contained in Plaintiffs’ Complaint.” (Id. at 6.) 7 According to Plaintiffs, “[a]s in Danelian, this [is] simply implausible.” (Id.) Assuming that these 8 calculations are correct—without conceding the method of calculation— Plaintiffs argue that “Ford 9 was clearly aware from the moment it was served with the Complaint on March 24, 2022 that the 10 amount in controversy threshold had been met.” (Id.) Therefore, Plaintiffs conclude the Notice of 11 Removal was untimely. (Id.) 12 In Danelian, the plaintiff filed a complaint against FCA US LLC alleging violations of the 13 Song-Beverly Act on December 16, 2019. Id., 2020 WL 4697907 at *1. It was undisputed by the 14 parties that the complaint did not include purchase price information. Id. at *1-2. Danelian reported 15 that “he provided ‘informal discovery,’which included the retail installment sales contract (‘RISC’) for 16 the subject Vehicle to FCA’s counsel” on March 19, 2020. Id. at *2. Danelian argued that because the 17 RISC included the total sales price, FCA “should have known the amount-in-controversy exceeded 18 $75,000 on March 19, 2020.” Id. Thus, Danelian asserted the removal filed by FCA on May 22, 2022 19 — “more than two months after Plaintiff provided that information to FCA”—was untimely. Id. In 20 response, FCA argued that “on April 24, 2020 it received a ‘legible’ copy of the RISC from the 21 dealership where Plaintiff purchased the Vehicle, which it claims permitted it to first determine that the 22 AIC in this lawsuit exceeded $75,000 based on the purchase price of the vehicle.” Id. The Court 23 observed that FCA did not produce “the allegedly illegible copy it received from Plaintiff’s counsel.” 24 Id. Further, FCA asserted that Plaintiff’s complaint “only disclosed the ‘vehicle year, make, model, 25 and date Plaintiff purchased the vehicle on,’ rendering it impossible for FCA to determine the AIC 26 from the face of the Complaint.” Id. The court rejected both arguments as “implausible,” noting the 27 RISC provided by Danelian was “legible and clearly shows the final sales price of the vehicle.” Id. The 28 court explained: 1 [G]iven Plaintiff’s undisputed evidence that she provided a copy of the RISC to FCA on March 19, 2020, that FCA had notice that this case was removable on that 2 date because the sale price of $28,447.52 coupled with the two times civil penalty FCA relied on in its Notice of Removal clearly establishes that the AIC necessary 3 for federal jurisdiction existed in this lawsuit. 4 The Court also finds FCA’s argument that it had no way of knowing the AIC in this lawsuit prior to receiving the RISC from the dealership to be largely 5 implausible. See Dkt. 14 at 6. FCA manufactured the Vehicle in question, and the lawsuit stated (as FCA acknowledges) the vehicle year, make, model, and date of 6 purchase. Dkt. 14 at 6. FCA’s Notice of Removal also asserts that the attorney’s fees in this action “can be reasonably considered to be at least $35,000.” Dkt. 1 at 7 4. This means that in light of Plaintiff’s request for a civil penalty of two times her actual damages (also stated on the face of the Complaint), the purchase price of the 8 Vehicle would have to be below approximately $13,400 to fail to meet the requisite AIC of $75,000 given FCA's AIC calculations as analyzed in the Notice 9 of Removal. The Court strongly suspects that FCA, as the manufacturer of the disputed Vehicle (which Plaintiff actually purchased for more than $28,000) was 10 aware that the purchase price was substantially higher than the minimum necessary to establish the $75,000 AIC necessary for diversity jurisdiction in this context, 11 regardless of the asserted illegibility of the copy of the RISC provided by Plaintiff’s counsel. 12 13 Id. at *2. Thus, the Central District determined the removal by FCA was untimely and granted 14 Danelian’s motion to remand. Id. at *2-3. 15 As in Danelian, it is undisputed that Plaintiff’s complaint filed in Fresno County Superior Court 16 did not include any information concerning the purchase price of the vehicle or identify a specific 17 amount of damages. Instead, Plaintiffs alleged only that they purchased a 2015 Ford Explorer on 18 January 15, 2017, which indicated the vehicle was likely used, rather than new. (See Doc. 1-2 at 4, ¶ 19 14.) As in Danelian, Ford asserted that it first learned of the purchase price—and thus could calculate 20 damages and amount in controversy—upon receipt of the RISC. However, unlike the defendant in 21 Danelian, there is no evidence that Ford failed to file the Notice of Removal within 30 days of 22 receiving the RISC with the purchase price information. Toward this end, it appears Plaintiffs’ reliance 23 upon Danelian is misplaced. 24 Moreover, the Court declines to find Ford was required to speculate as to the purchase price or 25 the applicable mileage offset to calculate Plaintiffs’ damages and the amount in controversy with the 26 limited vehicle information provided in the complaint. See Harris, 425 F.3d at 690-91; see also Ibarra, 27 775 F.3d at 1197 (“a defendant cannot establish removal jurisdiction by mere speculation and 28 conjecture”); Alvarado v. FCA US LLC, 2022 WL 1439474 at *2 (finding that without information 1 concerning the price “Plaintiff has actually paid” for a vehicle, a calculation for damages under the 2 Song-Beverly Act was “speculative,” and the defendant failed to show the amount in controversy 3 requirement was satisfied for diversity jurisdiction). Because Ford filed the Notice of Removal within 4 thirty days of receiving information that identified the purchase price—and Plaintiffs’ actual 5 damages— the Court finds Ford carried the burden to show the removal was timely pursuant to 28 6 U.S.C § 1446(b)(3). 7 B. Diversity of Citizenship 8 Section 1332 first requires complete diversity of citizenship, and the presence “of a single 9 plaintiff from the same State as a single defendant deprives the district court of original diversity 10 jurisdiction over the entire action.” Abrego Abrego, 443 F.3d at 679. For purposes of diversity 11 jurisdiction, a person is a citizen of the state in which he is domiciled, and is presumptively domiciled 12 at the place of residence. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). 13 Plaintiffs report they are residents of the state of California. (Doc. 1-2 at 3, ¶ 2.) In addition, 14 they acknowledge in the Complaint that Ford is “a Delaware Corporation.” (Id., ¶ 3.) Plaintiffs do not 15 dispute that the citizenship of the parties is completely diverse. (See generally Doc. 11-1.) Thus, the 16 Court finds this requirement of Section 1332 is satisfied. 17 C. Amount in Controversy 18 Plaintiffs argue that “Ford’s amount in controversy analysis is insufficient” in the Notice of 19 Removal for two reasons: (1) “its civil penalties estimate is speculative” and (2) the calculation 20 includes “speculative amounts of attorneys’ fees.” (Doc. 11-1 at 6-7, 9 [emphasis omitted].) Thus, 21 Plaintiffs assert that “Ford has failed to show by a preponderance of the evidence that the amount in 22 controversy exceeds $75,000.” (Id. at 6.) 23 1. Actual damages 24 The Song-Beverly Act defines restitution as “the actual price paid by the buyer,” including 25 collateral charges such as tax and registration fees. Cal. Civ. Code § 1793.2(d)(2)(B). However, the 26 calculation of restitution is reduced by the amount “directly attributable to use by the buyer” prior to 27 delivery of the vehicle to the dealer for correction of the problem that gave rise to the warranty 28 nonconformity. Id. Thus, for purposes of calculating the amount in controversy, the purchase price 1 should be reduced by a “usage offset.”2 See Schneider v. Ford Motor Co., 756 F. App’x 699, 700-01 2 (9th Cir. 2018). 3 In the Notice of Removal, Ford noted that “[p]ursuant to the RISC, the total amount paid 4 (purchase price) for the Subject Vehicle was $51,197.97.” (Doc. 1 at 6, ¶ 24.) Thus, Ford contends 5 Plaintiff’s actual damages under the Song-Beverly Act are $51,197.97. (Id., ¶ 26.) However, Ford 6 acknowledges that a usage offset may be considered, which would reduce the damages. (Id. at 6-8, ¶¶ 7 28-35.) Ford notes that the mileage at the time of purchase was 29,542 and the mileage at the time 8 Plaintiff’s first sought repairs for any “nonconformity” was 46,189. (Id. at 7, ¶¶ 31-32.) Because 9 Plaintiffs drove their Ford Explorer a total of “16,647 miles before the first presentation for a vehicle 10 noncomformity,” Ford calculated the offset figure total of $7,102.43.3 (Id., ¶ 33.) Ford indicated this 11 brings the “actual” damages to $44,095.54. (Id. at 7-8, ¶ 33.) Plaintiffs do not dispute the accuracy of 12 this calculation. (See generally Doc. 11-1 at 6-10.) Accordingly, the Court finds Plaintiffs’ actual 13 damages under the Song-Beverly Act total $44,095.54. See Dart Cherokee Basin Operating Co., LLC, 14 574 U.S. at 88 (indicating the court should accept an uncontested calculation). 15 2. Civil penalties 16 The Song-Beverly Act provides that a buyer may recover “a civil penalty of up to two times 17 the amount of damages” if the manufacturer or seller “willfully” violated a warranty or provision of 18 the Act. Cal. Civ. Code § 1794(c); see also Ramos v. FCA US LLC, 385 F.Supp.3d 1056 (E.D. Cal. 19 2019) (explaining civil penalties may be imposed for the willful failure of “vehicle manufacturers to 20 promptly replace or pay restitution for their lemon vehicles” as required by Section 1793.2(d)(2) of the 21 Act). Generally, this civil penalty is properly included in determining the amount in controversy, as 22 “the civil penalty under the Song-Beverly Act is akin to punitive damages, because both have the dual 23 effect of punishment and deterrence for defendants.” Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 24 2d 1004, 1009 (N.D. Cal. 2002); see also Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 25 26 2 The offset amount is determined by multiplying the “actual price of the new motor vehicle paid or payable by the buyer … by a fraction having its denominator 120,000 and having as its numerator the number of miles traveled by the new motor 27 vehicle prior to the time the buyer delivered the vehicle” for correction of the problem. Cal. Civ. Code § 1793.2(d)(2)(C). 3 Using the formula identified in the Song-Beverly Act, Ford calculated: “16,647 miles, divided by 120,000 miles, then 28 multiped by the purchase price of the Subject Vehicle ($51,197.97)” to reach the total of $7,102.43. (Doc. 1 at 7, ¶ 33.) 1 648 (9th Cir. 2016) (affirming the district court’s calculation of amount in controversy, which included 2 penalties under the Song-Beverly Act). Moreover, “[c]ourts as a matter of law, calculate the amount 3 in controversy based upon the maximum amount of civil penalties available to [a] plaintiff.” Saulic v. 4 Symantec Corp., 2007 WL 5074883, at *4 (C.D. Cal. Dec. 26, 2007). 5 In the complaint, Plaintiffs allege that Ford “willfully failed to comply with its responsibilities 6 under the [Song-Beverly] Act.” (Doc. 1-2 at 7, ¶ 51.) Plaintiffs also allege they are “entitled to … a 7 civil penalty of up to two times the amount of actual damages for Ford’s willful failure to comply with 8 its responsibilities under the Act.” (Id. at 5, ¶ 25, emphasis omitted.) In the prayer for relief, Plaintiffs 9 also request “[a] civil penalty in the amount of two times Plaintiffs’ actual damages.” (Id. at 7, ¶ 7.) 10 Based upon these allegations in the complaint, Ford argues that “[i]ncluding civil penalties in the 11 amount of two times the actual damages is… the appropriate measure for determining the amount in 12 controversy.” (Doc. 13 at 6-7.) On the other hand, Plaintiffs argue that “Ford has not offered any 13 evidence whatsoever to support an award for civil penalties, and thus, it is unable to establish in its 14 Notice of Removal what civil penalties might be imposed.” (Doc. 11-1 at 7.) 15 Contrary to Plaintiff’s assertion, Ford is not required to present evidence that it willfully 16 violated the Song-Beverly Act to include civil penalties in the damages calculation. See, e.g., 17 Ricksecker v. Ford Motor Co., 2021 WL 6621069 at *2 (N.D. Cal. Dec. 22, 2021) (rejecting the 18 argument that evidence a plaintiff would receive the maximum civil penalties was required prior to 19 including civil penalties in an amount-in-controversy calculation); Rahman v. FCA US LLC, 2021 WL 20 2285102 at *2 (C.D. Cal. June 4, 2021) (noting the plaintiff argued civil penalties under the Song- 21 Beverly Act should not be included in the calculation because the “[d]efendant has offered no evidence 22 that he is entitled to the maximum penalty ‘or, indeed, any penalties at all,’” and rejecting the argument 23 because “Defendant is not required to prove the case against itself”); Brooks v. Ford Motor Co., 2020 24 WL 2731830 at *2 (C.D. Cal. May 26, 2020 (“It would be absurd to suggest a defendant must offer 25 evidence showing it willfully failed to comply with the Song-Beverly Act, given that most defendants 26 … will deny that it willfully failed to comply…” [internal quotation marks, modification omitted]). 27 Instead, a defendant must only show “by a preponderance of the evidence… that the Complaint seeks 28 the maximum civil penalty authorized by the Song-Beverly Act, not that Plaintiff will actually receive 1 it.” Rickecker, 2021 WL 6621069 at *2 (citing Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 415 2 (9th Cir. 2018)). 3 This Court and others previously determined that when—as here—a plaintiff alleges the action 4 was willful and the prayer for relief includes a request for civil penalties “as provided in Song-Beverly, 5 in an amount not to exceed two times the amount of Plaintiff’s actual damages,” inclusion of the civil 6 penalties in a calculation of the amount in controversy is appropriate. See, e.g., Quinonez v. FCA US 7 LLC, 2020 WL 3397565, at *3 (E.D. Cal. June 19, 2020) (addressing identical language and including 8 civil penalties in the calculation and observing “other courts, when analyzing a complaint with the 9 exact wording incorporated in plaintiff’s complaint here, have reached the same conclusion”); Cortez 10 Martinez v. Ford Motor Co., 2019 WL 1988398, at *7 (E.D. Cal. May 6, 2019) (where the plaintiffs 11 alleged the defendant’s failure to comply with the Song-Beverly Act was willful and the prayer for civil 12 penalty “in the amount of two times Plaintiff’s actual damages,” the civil penalties were “expressly 13 placed in controversy by the complaint”); Modiano v. BMW of N. Am LLC., 2021 (S.D. Cal. Mar. 16, 14 2021) (including civil penalties in the amount in controversy calculation because the plaintiffs 15 “allege[d] willfulness giving rise to penalties under the Song-Beverly Act”); Elenes v. FCA US LLC, 16 2016 WL 6745424, at *5 (C.D. Cal. 2016) (“By specifically seeking the maximum civil penalty [under 17 the Song Beverly Act], plaintiffs placed that amount in controversy.”). 18 Because Plaintiffs clearly plead Ford acted willfully in failing to comply with the Song-Beverly 19 Act (Doc. 1 at 1-2 at 5-7, ¶¶ 25, 51) and the prayer for relief seeks up to double the actual damages (id. 20 at 7), this specific amount was placed into controversy. See Quinonez, 2020 WL 3397565, at *3; 21 Cortez Martinez, 2019 WL 1988398, at *7. As discussed above, the amount of actual damages is 22 $44,095.54; and twice that amount for civil penalties is $88,191.08. This amount shall be added to the 23 calculation of the amount in controversy. 24 3. Attorneys’ fees 25 The Ninth Circuit determined that future attorneys’ fees awards may be included in determining 26 the amount in controversy under fee-shifting statutes. Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 27 F.3d 785, 795 (9th Cir. 2018); see also Martinez, 2019 WL 1988398, at *7 (“Attorneys’ fees are 28 available to Plaintiffs here under California Civil Code Section 1794(d).”). District courts may exclude 1 future fees if they are too speculative or if the defendant fails to show with a “reasonable probability 2 that the amount in controversy exceeds the minimum.” Fritsch, 899 F.3d at 795. “A district court may 3 reject the defendant's attempts to include future attorneys’ fees in the amount in controversy if the 4 defendant fails to satisfy this burden of proof.” Id. 5 In the Notice of Removal, Ford noted the Court may consider anticipated attorneys’ fees when 6 calculating the amount in controversy, and asserted that “fees in this case will easily exceed 7 $20,000.00.” (Doc. 1 at 5-6, ¶¶ 21, 23, 27.) However, Ford did not meet its burden of proof to include 8 the suggested attorneys’ fees in the amount in controversy calculation. Although Ford cited the 9 declaration of counsel, Spencer Hugret—which was not filed in support of the Notice of Removal—a 10 single declaration does not support the estimate future fees with a reasonable probability. See 11 Schneider, 441 F. Supp. 3d at 914 (finding a declaration stating that “claims for attorneys’ fees in these 12 cases regularly approach or exceed $50,000” and that a recent fee demand by Plaintiff’s counsel 13 exceeded $300,000 was not competent proof to include fees in the calculation). The fee estimate lacks 14 the type of evidentiary support that allows for the inclusion of fees, such as fee petitions submitted in 15 similar cases. See, e.g., Martinez, 2019 WL 1988398 at *7 (including attorneys’ fees in the amount in 16 controversy where defendant submitted “five petitions for attorneys’ fees filed in other similar cases by 17 the same counsel who represent Plaintiffs here”). Furthermore, Ford does not identify the amount of 18 time tasks may take or the hourly billing rates, such that the Court may determine the reasonableness of 19 the fee estimate. See Conrad Assocs. v. Hartford Accident & Indemnity Co., 994 F. Supp. 1196, 1200 20 (N.D. Cal. 1998) (finding that “[the] contention that attorney fees are likely to total at least $20,000 is 21 too speculative” because the defendant failed to estimate “the amount of time each major task will 22 take” or appliable hourly billing rates). Because the $20,000.00 is purely speculative and lacks 23 evidentiary support, the Court declines to include the amount identified in its calculation of the amount 24 in controversy. See Fritsch, 899 F.3d at 795. 25 4. Total amount in controversy 26 Based upon the foregoing, the amount in controversy totals $132,286.62, which includes actual 27 damages in the amount of $44,095.54 and civil penalties in the amount of $88,191.08. Accordingly, 28 Ford carried the burden to establish by a preponderance of the evidence that the amount in controversy 1 || exceeds $75,000, even without the inclusion of attorneys’ fees in the calculation, as required under 2! 2 || U.S.C. § 1332. 3 ||IV.__ Conclusion and Order 4 For the reasons set forth above, the Court finds it has diversity jurisdiction over the matter. 5 || Accordingly, the Court ORDERS: Plaintiff's motion to remand (Doc. 11) is DENIED. 6 7 IT IS SO ORDERED. Dated: _ August 16, 2022 ( Li pA L. wan 9 TED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13