Richard Moberg v. Sunrise Senior Living, LLC, et al
Filing
8
ORDER Remanding Action to State Court by Judge R. Gary Klausner remanding case to Los Angeles County Superior Court, Case number BC638052 Case Terminated. Made JS-6(SEE CIVIL MINUTES FOR SPECIFICS) (bp)
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV16-8964-RGK (AGRx)
Title
MOBERG v. SUNRISE SENIOR LIVING, LLC, et al
Present: The
Honorable
Date
December 12, 2016
R. GARY KLAUSNER, U.S. DISTRICT JUDGE
Sharon L. Williams
Not Reported
Deputy Clerk
Court Reporter / Recorder
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Not Present
Not Present
Proceedings:
(IN CHAMBERS) Order Remanding Action to State Court
On October 25, 2016, Richard Moberg, as Conservator of Kimlon Moberg (“Plaintiff”) filed a
complaint against Sunrise Senior Living d/b/a Sunrise at Sterling Canyon. (“Defendant”) alleging claims
for 1) negligence, 2) fraudulent misrepresentation and concealment, 3) negligent infliction of emotional
distress, 4) elder abuse, and 5) unfair business practices. On December 2, 2016, Defendant removed the
action to this Court alleging federal jurisdiction based on diversity of citizenship. Upon review of
Defendant’s Notice of Removal, the Court hereby remands the action for lack of subject matter
jurisdiction.
Pursuant to 28 U.S.C. § 1332, district courts shall have original jurisdiction over any civil action
in which the parties are citizens of different states and the action involves an amount in controversy that
exceeds $75,000. After a plaintiff files a case in state court, the defendant attempting to remove the case
to federal court bears the burden of proving the amount in controversy requirement has been met.
Lowdermilk v. United States Bank Nat’l Ass’n, 479 F.3d 994, 998 (9th Cir. 2007). If the complaint does
not allege that the amount in controversy has been met, the removing defendant must supply this
jurisdictional fact in the Notice of Removal by a preponderance of the evidence. Gaus v. Miles, Inc., 980
F.2d 564, 566-567 (9th Cir. 1992).
Plaintiff alleges that Kimlon Moberg (“Kimlon”) is a resident of Sterling Canyon, which has an
assisted living program. According to Plaintiff, Defendant advised him that Kimlon required a higher
level of care within the assisted living program, which involved an assigned caregiver. Plaintiff agreed,
and from January 2013 to February 2016, Kimlon’s cost of care increased from $6,000 per month to
$8,000 per month. Plaintiff alleges that under this higher level of care, Kimlon experienced theft, sexual
assault, and physical injury. Plaintiff seeks general and special damages, restitution, and punitive
damages. Plaintiff, however, has not alleged a specific amount.
In its Notice of Removal, Defendant points to Plaintiff’s allegations regarding the increase of
costs to $8,000, and the January 2013 to February 2016 time period. Defendant states that based on
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Plaintiff’s claim for restitution only, the amount in controversy is at least $200,000. Although unclear, it
appears that Defendant derives its calculation using $8,000 per month over a three-year time period.
This estimation of restitution damages is not supported by any evidence or by the facts alleged in the
complaint, and the facts indicate an increase of only $2,000 per month for the higher level care. As to
the other damages sought, Defendant only generally states that those damages also have been requested.
This too, is insufficient for establishing that the damages sought exceed $75,000. Accordingly,
Defendant fails to satisfy its burden that the amount in controversy meets the jurisdictional requirement.
In light of the foregoing, the action is hereby remanded to state court for all further proceedings.
IT IS SO ORDERED.
:
Initials of Preparer
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