Gloria J. Lawrence v. FCA US LLC

Filing 14

MINUTES (IN CHAMBERS) by Judge Beverly Reid O'Connell: the Court finds that Plaintiff has failed to sufficiently establish grounds for remand in this case. Therefore, the Court DENIES Plaintiffs Motion to Remand and DENIES Plaintiffs request for attorneys fees. The Court VACATES the hearing in this matter set for October 17, 2016 at 9:00 a.m. 8 (rfi)

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

Present: The Honorable

BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS)

ORDER RE PLAINTIFF’S MOTION TO REMAND [8]
I.

INTRODUCTION

Pending before the Court is Plaintiff Gloria J. Lawrence’s (“Plaintiff”) Motion to
Remand. (Dkt. No. 8 (hereinafter, “Mot.”).) After considering the papers filed in support
of and in opposition to the instant Motion, the Court deems this matter appropriate for
resolution without oral argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
For the following reasons, the Court DENIES Plaintiff’s Motion.
II.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Background

This lawsuit involves a dispute arising from Plaintiff Gloria J. Lawrence’s
(“Plaintiff”) purchase of a new 2013 Dodge Durango on September 18, 2013. (Dkt. No.
1 (hereinafter, “Removal”), Ex. A (hereinafter, “Compl.”) ¶ 7.) Plaintiff, a California
resident, purchased her vehicle from FCA US LLC (“Defendant”), a Limited Liability
Company with its sole member, FCA North America Holdings LLC, residing in the
Netherlands and its principal place of business in Michigan. (Compl. ¶ 1; Removal
¶¶ 7.1–7.2.) Plaintiff purchased the Dodge Durango for $39,319.12: $3,500 for the down
payment, $30,568.19 financed, and $5,250.93 in financing charges. (Dkt. No. 9
(hereinafter, “Opp’n”) at 5; Compl., Ex. 1.) Plaintiff alleges that Defendant sold her a car
with a defective Totally Integrated Power Module (“TIPM”), despite knowing that the
TIPMs were defective. (Compl. ¶ 3.)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

Plaintiff asserts that because of the TIPM defect her vehicle had several issues,
including: irregular engine noises, numerous recalls due to TIPM failures, and electrical
malfunctions. (Compl. ¶¶ 13(a)–(c).) On March 6, 2015, Plaintiff delivered her vehicle
to an authorized repair facility for repair, at that time she complained of an irregular noise
coming from her car. (Compl. ¶ 93.) Prior to the March 6, 2015 repair, Plaintiff had
driven her car for 24,246 miles. (Opp’n, Ex. 4.)1 Ultimately, Plaintiff had her car
repaired four times over an eight-month period. (Compl. ¶¶ 93–96.)
Plaintiff filed this action on June 20, 2016, in the Superior Court of California,
County of Los Angeles (“Los Angeles Superior Court”). (See Compl.) Plaintiff alleges
three state law causes of action against Defendant: (1) breach of express warranty in
violation of the Song-Beverly Consumer Warranty Act (“Song-Beverly”); (2) breach of
implied warranty in violation of Song-Beverly; and, (3) fraudulent concealment. (Compl.
¶¶ 128–74.) On June 21, 2016, Plaintiff served a copy of the Summons and Complaint.
(Removal ¶ 3.) On July 21, 2016, Defendant filed its Notice of Removal with this Court.
(See Removal.) Plaintiff filed the instant Motion to Remand back to Los Angeles
Superior Court on August 19, 2016. (See Mot.) Defendant filed its Opposition on
September 26, 2016. (See Opp’n.) On October 3, 2016, Plaintiff filed her Reply, (Dkt.
No. 10), and objections to Defendant’s evidence, (Dkt. No. 11).
III.

LEGAL STANDARD

Federal courts are of limited jurisdiction and possess only that jurisdiction which is
authorized by either the Constitution or federal statute. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to § 1332(a)(1), a federal district court
has jurisdiction over “all civil actions where the matter in controversy exceeds the sum or

1

Plaintiff objects to the exhibits Defendant included with its Opposition. (See Dkt. No. 11.) “In ruling
on a motion to remand courts may view whatever evidence has been submitted on the issue to determine
whether subject matter jurisdiction exists, including summary judgment-type evidence.” Johnson v.
Sunrise Senior Living, No. CV 16-00443 BRO (RAOx), 2016 WL 917888, at *4 (C.D. Cal. Mar. 8,
2016) (quoting Cardroom Int’t LLC v. Scheinberg, No. 12-02870 MMM (AGRx), 2012 WL 2263330, at
*4 n.12 (C.D. Cal. June 18, 2012) (citations omitted)). “Plaintiff provides the Court with no authority—
nor does this Court find any—to equate the ‘summary judgment-type evidence’ discussed by courts in
connection with motions to remand, with evidence actually admissible at trial (or at the summary
judgment stage) pursuant to the Federal Rules of Evidence.” Id. (emphasis in original). Therefore, the
Court OVERRULES Plaintiff’s objections and considers Defendant’s proffered evidence.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

value of $75,000, exclusive of interest and costs,” and the dispute is between citizens of
different states. The Supreme Court has interpreted § 1332 to require “complete diversity
of citizenship,” meaning each plaintiff must be diverse from each defendant. Caterpillar
Inc. v. Lewis, 519 U.S. 61, 67–68 (1996).
28 U.S.C. § 1441(a) provides that a civil action may be removed to the district
court only if the district court has original jurisdiction over the issues alleged in the state
court complaint. If a matter is removable solely on the basis of diversity jurisdiction
pursuant to § 1332, it may not be removed if any properly joined and served defendant is
a citizen of the forum state. See 28 U.S.C. § 1441(b)(2).
In determining whether removal in a given case is proper, a court should “strictly
construe the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to
the right of removal in the first instance.” Id. The removing party therefore bears a
heavy burden to rebut the presumption against removal. See id. “[T]he court resolves all
ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009) (citing Gaus, 980 F.2d at 566).
IV.

DISCUSSION

Plaintiff seeks to have the instant case remanded to state court. Plaintiff provides
two arguments as to why the Court should remand this case: (1) Defendant failed to
establish that the amount in controversy exceeds $75,000; and, (2) that comity principles
support remand. (See Mot. at 5, 17.) Plaintiff does not contest the complete diversity of
the parties.2 (See Mot.) For the following reasons, the Court finds that removal was
proper and DENIES Plaintiff’s Motion to Remand.

2

In order for the Court to have diversity jurisdiction the dispute must be between citizens of different
states and each plaintiff must be diverse from each defendant. See 28 U.S.C. § 1332(a)(1); Caterpillar
Inc., 519 U.S. at 67–68. As noted above, Plaintiff is a citizen of California. (Mot. at 1.) FCA is an LLC
with its sole member residing in the Netherlands and its principal place of business in Michigan.
(Removal ¶¶ 7.1–7.2.) As such, the Court finds that there is complete diversity among the parties.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

A.

Amount in Controversy

When a defendant removes a complaint to federal court, the defendant’s burden
with respect to the amount in controversy varies depending on the circumstances.
Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007). “[W]here it is
unclear or ambiguous from the face of a state-court complaint whether the requisite
amount in controversy is pled,” the applicable standard is by a preponderance of the
evidence; this requires that the defendant offer evidence establishing that it is more likely
than not that the amount in controversy exceeds $75,000, exclusive of costs and interest.
Id. (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)). In
considering whether the removing defendant has satisfied its burden, the 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 373, 377 (9th Cir. 1997) (quoting Allen v. R & H Oil & Gas. Co., 63
F.3d 1326, 1335–36 (5th Cir. 1995)).
Here, the amount in controversy is unclear from the face of the Complaint. (See
Compl.) Defendant claims that the amount in controversy exceeds $75,000 due to the
statutory damages she may recover under Song-Beverly as well as potentially recoverable
punitive damages for fraudulent concealment. (Removal ¶¶ 8–9; Opp’n, Ex. 4.)
1.

Actual Damages Under Song-Beverly

Song-Beverly allows a plaintiff to recover for an automobile manufacturer’s
violation of an express warranty. See Cal. Civ. Code § 1793.2. Under Song-Beverly, a
plaintiff can collect restitution “in an amount equal to the actual price paid or payable by
the buyer” for the automobile. Cal. Civ. Code § 1793.2(d)(2)(B). This amount is
“reduced by the manufacturer by that amount directly attributable to use by the buyer
prior to the time the buyer first delivered the vehicle to the manufacturer or distributor,
. . . for correction of the problem that gave rise to the nonconformity.” Cal. Civ. Code
§ 1793.2(d)(2)(C). To determine the amount directly attributable to the buyer’s use of the
vehicle, the manufacturer multiplies the price of the vehicle the buyer paid or will pay by

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

a fraction—the denominator is 120,000 and the numerator is the number of miles the
buyer drove the car prior to the first relevant repair.3 Id.
The purchase price of Plaintiff’s vehicle was $34,068.19. (Removal ¶ 8, Compl.
Ex. 1.) This price includes the financed amount of $30,568.19 and the down payment of
$3,500.4 (Opp’n at 5, Compl. Ex. 1). According to Plaintiff’s Complaint, she first took
her vehicle in for repairs on March 6, 2015. (Compl. ¶ 93.) On March 6, 2015, the
vehicle’s mileage was 24,267 miles, but because Plaintiff purchased the car when it had
21 miles on it, Plaintiff had only driven the car for 24,246 miles. (Removal ¶ 8 n.3;
Opp’n, Ex. 4.) Thus, the reduction in price attributable to the buyer is $6,883.48.5
(Removal ¶ 8.) Therefore, the amount in actual damages Plaintiff can collect is
$27,184.71.6

3

Amount paid or payable

= amount directly attributable to use by

,

the buyer. Cal. Civ. Code § 1793.2(d)(2)(C).
4

Defendant did not include the total finance charges of $5,250.93 in its purchase price calculation, even
though that would have raised the total purchase price to $39,319.12. (Opp’n at 5.) Paid finance
charges are recoverable. See Mitchell v. Blue Bird Body Co., 80 Cal. App. 4th 32, 38–39 (Cal. Ct. App.
2000). However, Defendant has failed to state whether and how much of the finance charges Plaintiff
has actually paid. (See Removal; Opp’n.) Therefore, the Court does not include finance charges in the
damage calculation.

5

$34,068.19 (amount paid or payable)

,

,

= $6,883.48.

6

Plaintiff contends that Defendant uses the wrong purchase price as the base for the mileage setoff
calculation because under § 1793(d)(2)(C) (which explains how to calculate the mileage setoff amount),
the purchase price should not include taxes, registration, and license fees. (Mot. at 10); see also Cal.
Civ. Code § 1793.2(d)(2)(B). In this case, Plaintiff’s taxes, registration, and license fees were
$2,831.19. (See Compl., Ex. 1). Assuming Plaintiff was correct, reducing the purchase price by
$2,831.19 from $34,068.19 to $31,237 to perform the mileage setoff calculation would result in the
following:
,

= $6,311.45.
$31,237 (amount paid or payable)
,

Thus, the mileage setoff for Plaintiff’s use would be $6,311.45. However, under § 1793(d)(2)(B)
(which explains how to calculate the total amount of restitution the manufacturer may be required to
pay), the taxes, registration, and license fees are included in the purchase price. See Cal. Civ. Code
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

2.

Civil Penalty Damages

Next, in order to reach the $75,000 jurisdictional minimum, Defendant relies on
Plaintiff’s request for civil penalty damages under Song-Beverly. (Removal ¶ 8.) “The
amount in controversy for diversity jurisdiction may include punitive damages if
recoverable under state law.” Brady v. Mercedes-Benz USA, Inc. 243 F. Supp. 2d 1004,
1009 (N.D. Cal. 2002) (citations omitted). Song-Beverly does not have punitive damages
but “[c]ourts have held that the civil penalty under [Song-Beverly] is akin to punitive
damages, because both have the dual effect of punishment and deterrence for
defendants.” Id. (citations omitted). Moreover, “courts have held in other contexts that
treble damages authorized by state law may be included in determining the amount in
controversy” and Song-Beverly “in effect authorizes treble damages.” Id. (citations
omitted). Therefore, the Court finds that Song-Beverly’s civil penalty damages are
properly included in the amount in controversy.
Here, Plaintiff asserts that she is entitled to civil damages under Song-Beverly.
(Compl. ¶ 142.) “[I]f the buyer establishes a violation of [§ 1793.2] the buyer shall
recover . . . a civil penalty of up to two times the amount of damages.” Cal. Civ. Code
§ 1794(e)(1). “Courts as a matter of law, calculate the amount in controversy based upon
the maximum amount of civil penalties available to plaintiff.” Saulic v. Symantec Corp.,
No. SA CV 07-610 AHS (PLAx), 2007 WL 5074883, at *4 (C.D. Cal. Dec. 26, 2007)
(citing Brill v. Countrywide Home Loans, 427 F.3d 446, 448 (7th Cir. 2005); Romo v.
FFG Ins. Co., 397 F. Supp. 2d 1237, 1240 (C.D. Cal 2005); Brady, 243 F. Supp. 2d at
1009). As stated above, the amount of actual damages is $27,184.71. Therefore, Plaintiff
can recover up to $54,369.42 in civil damages. See Cal. Civ. Code § 1794(e)(1).
Combining the possibility of Plaintiff’s restitution along with her recoverable civil
penalties, the Court finds that it is more likely than not that the amount in controversy
under Song-Beverly is $81,554.13.

§ 1793.2(d)(2)(B). Thus, the total damages under § 1793.2(d)(2)(B) would be $34,068.19 - $6,311.45 =
$27,756.74. This is a higher damages amount than under Defendant’s calculation. As it is Defendant’s
burden to establish the amount in controversy, the Court uses Defendant’s lower damages calculation.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

3.

Punitive Damages

Finally, Defendant claims that because the plaintiff is seeking punitive damages, it
is even more likely that the amount in controversy is greater than $75,000. (Removal
¶ 9.) “It is well established that punitive damages are a part of the amount in controversy
for purposes of establishing diversity jurisdiction.” Sasso v. Noble Utah Long Beach,
LLC, No. CV14-09154 AB (AJWx), 2015 WL 898468, at *6 (C.D. Cal. Mar. 3, 2015)
(quoting Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001)). Here, Plaintiff
seeks punitive damages of an unstated amount. (Compl. at 28.) “When assessing the
probable amount of unspecified punitive damages for jurisdictional purposes, courts may
look to verdicts in analogous cases as a reasonable approximation.” Campbell v.
Hartford Life Ins. Co., 825 F. Supp. 2d 1005, 1009 (E.D. Cal. 2011) (citing Simmons v.
PCR Tech., 209 F. Supp. 2d 1029, 1033 (N.D. Cal. 2002)). However, Defendant has not
provided any analogous verdicts or estimates about the amount, and because the
Defendant bears the burden to prove damages, see Guglielmino, 506 F.3d at 699, the
Court cannot consider punitive damages in determining the amount in controversy.
Nevertheless, the Court finds that the Defendant has sufficiently proved the
amount of statutory damages under Song-Beverly. Accordingly, the Court finds
Defendant’s calculation of the amount in controversy, $81,554.13, to be a satisfactory
approximation of damages showing, more likely than not, that the amount in controversy
here exceeds $75,000. As such, the Court finds that it has diversity jurisdiction over the
matter under 28 U.S.C. § 1332(a).
B.

Comity

Next, Plaintiff seeks remand based on the doctrine of comity. (Mot. at 17–19.)
Plaintiff contends that even if the Court has diversity jurisdiction “it should decline to
exercise it here and remand the action back to State Court.” (Mot. at 19.) “[T]he
diversity statute, unlike the supplemental jurisdiction statute, does not afford district
courts the discretion to decline jurisdiction over state law claims.” BNSF Ry. Co. v.
O’Dea, 572 F.3d 785, 793 n.2 (9th Cir. 2009) (Fisher, J., concurring) (citation omitted)
(comparing mandatory diversity jurisdiction under 28 U.S.C. § 1332 with discretionary
supplemental jurisdiction under 28 U.S.C. §1367(c)). “District courts sitting in diversity
therefore lack the option of refusing state law claims out of consideration for ‘judicial
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-05452 BRO (GJSx)

Title

GLORIA J. LAWRENCE V. FCA US LLC

Date

October 11, 2016

economy, convenience, fairness, and comity.’” Id. (quoting City of Chicago v. Int’l Coll.
of Surgeons, 522 U.S. 156, 173 (1997)). As stated above, the Court has diversity
jurisdiction over this matter. Therefore, the Court finds Plaintiff’s comity argument
unavailing and DENIES Plaintiff’s Motion to Remand.
D.

Attorneys’ Fees

Plaintiff seeks $975 in attorneys’ fees incurred in bringing this Motion, based on
the allegation that Defendants’ removal was improper. (See Mot. at 19.) “Absent
unusual circumstances,” a district court may award fees pursuant to 28 U.S.C. § 1447(c)
“only where the removing party lacked an objectively reasonable basis for seeking
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Here, the Court
holds removal was proper; therefore, an award of attorneys’ fees is inappropriate. As
such, the Court DENIES Plaintiff’s request for attorneys’ fees.
V.

CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has failed to sufficiently
establish grounds for remand in this case. Therefore, the Court DENIES Plaintiff’s
Motion to Remand and DENIES Plaintiff’s request for attorneys’ fees. The Court
VACATES the hearing in this matter set for October 17, 2016 at 9:00 a.m.
:

IT IS SO ORDERED.
Initials of
Preparer

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