Johnny Galvan v. Walt Disney Parks and Resorts U.S., Inc. et al

Filing 21

MINUTES (IN CHAMBERS) Order Granting Plaintiffs' Motion for Remand by Judge Andre Birotte Jr.: The Court finds Defendant has not established by a preponderance of the evidence that the amount in controversy in this case exceeds $75,000. Accordingly, the Court GRANTS Plaintiffs' Motion to Remand 15 . Case Remanded to Los Angeles Superior Court, Case No. BC642901. ( MD JS-6. Case Terminated. ) Court Reporter: N/A. (gk)

park employees would accommodate these cardholders by allowing them to forego
traditional lines to get on rides or visit other park attractions.
In October 2013, Disney replaced Guest Assistance Cards with Disability Access
Service (“DAS”) cards. It is not clear from the Complaint what guests were required to do
to obtain GACs before October 2013, but to obtain a DAS card thereafter, guests were
required to report to Guest Relations to have a photograph taken. Plaintiffs contend that
including this added wait time with Guest Relations to the wait times they would have to
endure in the regular lines at park attractions necessarily resulted in lengthier wait times in
the aggregate for disabled guests than for non-disabled guests. (Id. at ¶ 23.) As Plaintiffs
calculate, “[i]f a disabled person waits one hour at Guest Relations to obtain the DAS card,
then complies with the DAS and rides one ride which has a one-hour wait time, the
disabled person’s wait time is two hours, while the non-disabled person’s wait time is only
one hour.” (Id.)
Plaintiff Johnny Galvan has a diagnosed anxiety disorder and back disability, which
prevent him from “waiting or biding time without cognitive and visible goal impairments
occurring.” He and his wife, Plaintiff Sandy Mumma, visited Disneyland in Anaheim,
California, in January, April, and May 2015. Plaintiffs contend they were “forced to leave
the park” because they were not allowed “to get a pass to go through the entrance line of the
ride at the exit” (which it appears, though it is unclear from the Complaint, they were
permitted to do with GACs), and because Galvan was unable to wait in line. (Id. at ¶ 25.)
Plaintiff Stavros Patsalos, who suffers from cerebral palsy, and during the time of
his visit to Walt Disney Park in March, 2015, he was also recovering from knee surgery
and therefore was “incapable of waiting in line for an extended period of time.” (Id. at ¶
27.) In his previous experience at the park, Patsalos was able to get a pass to go to the
front of the lines for rides or get appointments to be able to get on a particular ride at a
particular time to avoid wait times. During his visit in 2015, Patsalos was not afforded
these accommodations and “left the park.” (Id.) All three Plaintiffs claim they suffered
emotional distress as a result of the treatment they received at Disney parks. (Id. at ¶¶ 31,
35.)
As a result, Plaintiffs allege claims for violations of California’s Unruh Civil Rights
Act and negligent and intentional infliction of emotional distress. (Id. at ¶¶ 24-39.)
II. LEGAL STANDARD
As courts of limited jurisdiction, federal courts have subject matter jurisdiction only
over matters authorized by the Constitution and Congress. See, e.g., Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court may be
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removed to federal court if the federal court would have had original jurisdiction over the
suit. 28 U.S.C. § 1441(a). A removed action must be remanded to state court if the
federal court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).
Under 28 U.S.C. § 1441, a defendant may remove an action from state court to
federal court on the basis of diversity jurisdiction if “none of the parties in interest properly
joined and served as defendants is a citizen of the State in which such action is brought.”
28 U.S.C. § 1441. Diversity jurisdiction requires that the parties be in complete diversity
and the amount in controversy exceed $75,000. See 28 U.S.C. § 1332.
The amount in controversy is the total “amount at stake in the underlying litigation.”
Theis Research, Inc. v. Brown & Bain, 400 F.3d 659, 662 (9th Cir. 2005). “[I]n assessing
the amount in controversy, a court must ‘assume 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.’” Campbell v. Vitran Exp., Inc., 471 Fed. App’x 646, 648 (9th Cir. 2012)
(quoting Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993,
1001 (C.D. Cal. 2002)).
“The ‘strong presumption’ against removal jurisdiction means that the defendant
always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992). And while “‘a defendant’s notice of removal need include
only a plausible allegation that the amount in controversy exceeds the jurisdictional
threshold,’ . . . ‘[e]vidence establishing the amount is required’” when “defendant’s
assertion of the amount in controversy is contested by plaintiff[].” Ibarra v. Manheim
Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (quoting Dart Cherokee Basin
Operating Company, LLC v. Owens, 135 S. Ct. 547, 554 (2014). “The burden of
establishing federal jurisdiction is on the party seeking removal, and the removal statute is
strictly construed against removal jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.) Inc.,
167 F.3d 1261, 1265 (9th Cir. 1999), superseded by statute on other grounds as stated in
Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006); Martinez v. Los
Angeles World Airports, 2014 WL 6851440, at *2 (C.D. Cal. Dec. 2, 2014). Where it is
unclear from the face of the complaint whether the amount in controversy is satisfied, the
defendant seeking removal must prove by a preponderance of the evidence that the amount
in controversy is satisfied.
III.

DISCUSSION

Plaintiffs move to remand this case, asserting their claims do not put $75,000 in
controversy, such that the requirements of diversity jurisdiction under 28 U.S.C. § 1332 are
not satisfied.
For each of their claims, Plaintiffs seek general and special damages in an amount
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according to proof, costs of suit, and “other and further relief as the Court deems just and
proper.” Plaintiffs also seek attorneys’ fees in association with their Unruh Act claim. In
their Motion for Remand, Plaintiffs argue this relief does not amount to $75,000. (Dkt.
No. 15, Mot. at 3.) Specifically, Plaintiffs argue they seek statutory damages under the
Unruh Act, totaling $28,000, or $4,000 per violation per person. (Id.) Plaintiffs also
seek $5,520 in attorneys’ fees accrued “prior to this motion,” and $600 in costs. (Id. at
3-4.)
A. Compensatory Damages
Defendant claims the amount in controversy is met by the damages alleged under
Plaintiffs’ Unruh Act and emotional distress claims, as established by “numerous jury
verdicts in cases involving analogous facts.” Defendant cites several cases alleging
Unruh Act violations and emotional distress claims where juries returned verdicts that,
alone or when trebled, met the amount in controversy. (Dkt. No. 18, Opp’n at 5-6.) But
these citations alone are not sufficient to meet Defendant’s burden in this case to
demonstrate by a preponderance of the evidence that the amount in controversy is satisfied.
First, Defendant does not demonstrate that any of the cases cited are sufficiently
analogous, “with substantially similar factual scenarios[ ] that might guide the court as to
what emotional distress damages might be recovered here.” Ornelas v. Costco
Warehouse Corp., No. CV 14-4759-FMO-PJWx, 2014 WL 3406435, at *2 (C.D. Cal. July
9, 2014). See also Mireles v. Wells Fargo Bank, N.A., 845 F. Supp. 2d 1034, 1055 (C.D.
Cal. 2012) (“While settlements and jury verdicts in similar cases can provide evidence of
the amount in controversy, the cases must be factually identical or, at a minimum,
analogous to the case at issue.”). Defendant cites Dov v. Ascot Hotel LLC, 2007 WL
4946166 (Cal. Super. Ct. May 22, 2007), for the proposition that Unruh Act and negligent
and intentional infliction of emotional distress claims have yielded $151,200 in
compensatory damages. (Opp’n at 5.) In Dov, a plaintiff with a mental disability was
denied housing when he sought to live with his companion animal despite the defendant’s
“no pets” policy. The plaintiff subsequently spent four days homeless. Dov, 2007 WL
4946166. Defendant also cites Donovan v. Poway Unified Sch. Dist., 2005 WL 3358987
(Cal. Sup. Ct. June 8, 2005), where a jury awarded $125,000 and $175,000 to two plaintiffs
for emotional distress under the Unruh Act. In Donovan, the plaintiffs suffered
harassment, discrimination, and intimidation on account of their sexual orientation and
were forced to engage in a home study program as a result. Though both of these cases
involved Unruh Act and emotional distress claims, the Court does not find, nor does
Defendant argue, that the facts presented are substantially similar so as to shed any light on
the amount in controversy in this case.
The fact that the cited cases allege similar or identical claims is not enough to
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establish the amount in controversy beyond a reasonable doubt because, just as juries may
have previously awarded damages in excess of the amount in controversy, they have also
awarded less. Defendant also cites Paletz v. Adaya, 2012 WL 6951490 (Cal. Super. Ct.
Sept. 27, 2012), where a jury awarded individual plaintiffs damages and statutory penalties
for emotional distress under the Unruh Act in amounts far below the jurisdictional
minimum required in this case. The fact that Plaintiffs allege claims for Unruh Act
violations and emotional distress does not itself establish the amount in controversy, and
without evidence of more similar cases, the Court does not find that Defendant has
established the amount in controversy is satisfied in this case based on these citations
alone.
Moreover, as Defendant admits, Defendant cited many, if not all, of these cases in its
Notice of Removal. (Compare NOR ¶¶ 20-24, with Opp’n at 4-6.) As noted,
Defendant’s burden increased from raising a “plausible allegation” in the notice of removal
to establishing the jurisdictional requirements by a preponderance of the evidence once
Plaintiff challenged the propriety of removal. Ibarra, 775 F.3d at 1197 (quoting Dart
Cherokee, 135 S.Ct. at 554). While the cited cases may have been enough to meet the
former burden, they do not meet the latter.
B. Punitive Damages
Defendant also argues Plaintiffs seek punitive damages in their prayer for relief for
their negligent and intentional emotional distress claims. (Opp’n at 6.) Though punitive
damages may be included in the amount in controversy calculation, see Gibson v. Chrysler
Corp., 261 F.3d 927, 945 (9th Cir. 2001), Defendant does not cite to cases that allow the
Court to do anything more than speculate as to the amount actually in controversy here.
Defendant cites Romero v. Leon Max Inc., 2009 WL 5258439 (Cal. Sup. Ct. Nov. 2, 2009),
and Graber v. Litton Guidance & Control Sys., 1998 WL 1039030 (Cal. Sup. Ct. Aug. 11,
1998), cases in which juries returned substantial punitive damages awards. “[B]ut
[Defendant] make[s] no attempt to analogize or explain how these cases are similar to the
instant action. Simply citing these cases merely illustrate that punitive damages are
possible, but in no way shows that it is likely or probable in this case.” Killion v.
AutoZone Stores Inc., No. 5:10-CV-01978, 2011 WL 590292, at *2 (C.D. Cal. Feb. 8,
2011). See also Antonelli v. Time Warner Entm’t-Advance/Newhouse P’ship, No. CV
11-00812, 2011 WL 2712554, at *2 (C.D. Cal. July 13, 2011) (“Defendant submits no
evidence and no underlying facts that establish the actual amount in controversy.
Conclusory assertions and general citations to cases, without any discussion or support, are
simply not enough. Nor does Defendant show that damages of greater than $75,000 have
been awarded in cases that are factually similar to this one.”). Here, “Defendants’
inclusion of punitive damages in the calculation of the jurisdictional amount is speculative
and unsupported.” Killion, 2011 WL 590292, at *2. The Court therefore has no basis to
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include punitive damages in the amount in controversy calculation.
C. Attorneys’ Fees
“[W]here an underlying statute authorizes an award of attorney’s 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). A split
of authority persists concerning whether post-removal legal costs should be included, but
this Court and several others in the district have recently held that “post-removal attorneys’
fees authorized by law are part of the amount in controversy.” Sawyer v. Retail Data,
LLC, No. CV 15-0184, 2015 WL 3929695, at *2 (C.D. Cal. Apr. 29, 2015) (citing Sasso,
supra, 2015 WL 898468, at *5); see also, e.g., Garcia v. ACE Cash Express, Inc., No. CV
14–00285, 2014 WL 2468344, at *5 (C.D. Cal. May 30, 2014); Brady v. Mercedes–Benz
USA, Inc., 243 F. Supp. 2d 1004, 1011 (N.D. Cal. 2002) (collecting cases and concluding
that post-removal fees contribute to amount in controversy when fees are authorized by
law).
The Unruh Act does provide for the recovery of attorneys’ fees. Cal. Civ. Code §
52(a). Defendant contends, based on counsel’s “experience litigating these cases for
nearly three years, the legal work required to challenge the DAS system, whether on behalf
of 40 plaintiffs or a single plaintiff, would be many times greater than the $75,000
jurisdictional minimum.” (Declaration of Kerry Alan Scanlon in support of Defendant’s
Opposition ¶ 7.) Defendant also cites several cases where courts awarded attorneys’ fees
under the Unruh Act and the Americans with Disabilities Act “in amounts far in excess of
the jurisdictional minimum.” (Opp’n at 10.) Defendant thus argues, “[t]hese cases
demonstrate that the reasonably anticipated amount of attorneys’ fees over the life of this
case will result in the jurisdictional threshold easily being met here.” (Id.)
But once again, Defendant has not attempted to demonstrate the similarity or
relevance of these cases to the one at hand, or provide a factual basis from its experience
beyond broad, self-serving conclusions that in the chance this case is fully litigated, the
amount in controversy will be satisfied. As one court observed, “attorneys’ fees are in the
control of the client and counsel and may be avoided or accrue over years depending on
legal strategy.” Foltz v. Integon Nat. Ins. Co., No. 1:14-CV-00907-KJM, 2014 WL
4960765, at *3 (E.D. Cal. Oct. 2, 2014). The fact that it is possible this case may proceed
past the early stages of litigation and through to trial, and that the Court might later award
attorneys’ fees in excess of $75,000, does not establish that those events are more likely
than not to occur. This speculative estimate of future attorneys’ fees does not satisfy
Defendant’s burden. Moreover, applying the Defendant’s logic, any case where
attorneys’ fees may be awarded by statute would satisfy the amount in controversy, even if
unsupported by any concrete evidence, merely because litigation is expensive and the fact
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a case was filed raises the possibility it may proceed to trial. The Court does not find this
reasoning persuasive and concludes Defendant has not established by a preponderance of
the evidence that attorneys’ fees in this matter will exceed the jurisdictional threshold.
D. Settlement Demand
On February 9, 2017, prior to filing the instant motion, Plaintiffs made a settlement
demand in the amount of $51,000, plus park tickets and passes valued at not more than
$1,500 total (an estimated $120 per ticket for three visits, plus 10 re-admit passes at $10
each, for three plaintiffs). (See Declaration of Scott E. Schutzman in support of Plaintiffs’
Reply ¶ 2.) Plaintiffs contend this demand “is evidence that this case belongs in state
court.” (Dkt. No. 19, Reply at 2.)
On March 13, 2017, Defendant filed a supplement to its opposition, notifying the
Court that Plaintiffs’ counsel indicated the settlement demand would expire at the close of
business on March 15, 2017. (Dkt. No. 20.) Defendant argues Plaintiffs have thus
“conceded that [the] offer was merely a compromised discount from the total amount of
damages.” (Id.)
A settlement demand may supply “relevant evidence of the amount in controversy if
it appears to reflect a reasonable estimate of the plaintiff’s claim.” Cohn v. Petsmart, Inc.,
281 F.3d 837, 840 (9th Cir. 2002). But the Court need not decide whether Plaintiffs’
demand was a reasonable one. If reasonable, the amount in controversy would not be
satisfied by the amount demanded. If unreasonable, Defendant has not challenged
Plaintiffs’ valuation by presenting its own estimate, nor has it otherwise demonstrated the
amount in controversy exceeds $75,000 by a preponderance of the evidence so as to
establish jurisdiction here. In either case, the Court finds the jurisdictional minimum
would not be met.
IV.

CONCLUSION

For the foregoing reasons, the Court finds Defendant has not established by a
preponderance of the evidence that the amount in controversy in this case exceeds $75,000.
Accordingly, the Court GRANTS Plaintiffs’ Motion to Remand. The clerk shall remand
this action to Los Angeles County Superior Court and close the case.
IT IS SO ORDERED.

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