Katalina Baumann v. BMW of North America, LLC et al

Filing 16

MINUTES (IN CHAMBERS) ORDER RE PLAINTIFFS MOTION TO REMAND 10 by Judge Beverly Reid O'Connell: The Court GRANTS Plaintiffs Motion to Remand but DENIES her request for attorneys' fees. This action is REMANDED to the Superior Court of California, County of Los Angeles, Central District. (MD JS-6. Case Terminated.) (jp)

JS-6
LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

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 Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS)

ORDER RE PLAINTIFF’S MOTION TO REMAND [10]
I.

INTRODUCTION

Pending before the Court is Plaintiff Katalina Baumann’s (“Plaintiff”) Motion to
Remand and Request for Attorneys’ Fees. (See Dkt. No. 10 (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 GRANTS
Plaintiff’s Motion but DENIES her request for attorneys’ fees.
II.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Background

Plaintiff resides in Los Angeles County, California. (See Dkt. No. 1, Ex. A
(hereinafter, “Compl.”) ¶ 1.) Defendant BMW North America, LLC (“BMW NA”) is a
corporation who manufactures and sells BMW motor vehicles. (Compl. ¶ 2.) Defendant
New Century Alhambra Automobiles Corporation of California (“New Century”) is one
of BMW’s authorized agents that sells, services, and repairs BMW motor vehicles.1
(Compl. ¶ 3.)
Plaintiff claims that BMW manufactured, distributed, and provided express and
implied warranties for a new 2014 BMW 528i with the Vehicle Identification Number
WBA5A5C56ED503942 (the “Subject Vehicle”). (Compl. ¶¶ 7–9.) On December 31,

1

The Court will refer to BMW NA and New Century collectively as “Defendants.”

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

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

2013, Plaintiff leased the Subject Vehicle from Valencia BMW in Valencia, California.
(Compl. ¶ 10.) The Subject Vehicle had been driven twenty-five miles at the time
Plaintiff took possession of it. (Compl. ¶ 13.) Plaintiff avers that approximately seven
months later, the Subject Vehicle’s defects began to manifest when it overheated and the
“Low Coolant” and “Low Lights” came on. (Compl. ¶ 14.) Plaintiff took the Subject
Vehicle to New Century for inspection. (Id.) New Century purported to repair the
vehicle under warranty and returned it to Plaintiff. (Id.)

On September 12, 2014, the Subject Vehicle lost power, “stuttered,” and the
“Service Engine Soon” light came on. (Compl. ¶ 15.) Plaintiff took it back to New
Century and, after inspecting it, New Century replaced a faulty thermostat and cleared the
fault codes from the vehicle’s system. (Id.) On October 6, 2014, the Subject Vehicle’s
engine failed. (Compl. ¶ 16.) New Century indicated that it was “able to verify and
duplicate all faults and engine malfunctions” and returned the car to Plaintiff. (Id.) On
March 30, 2015, the Subject Vehicle again malfunctioned in various ways. (Compl.
¶ 17.) Again, New Century repaired the vehicle and returned it to Plaintiff. (Id.)
Nonetheless, Plaintiff claims that the Subject Vehicle continued to malfunction.
(Compl. ¶ 18.) On December 15, 2015, Plaintiff took the vehicle back to New Century,
which kept it for approximately nine days and performed several warranty repairs. (Id.)
On September 27, 2016, after further malfunctioning, Plaintiff took the vehicle to Bob
Smith BMW for inspection. (Compl. ¶ 19.) The dealership kept the vehicle for sixteen
days and performed additional repairs. (Id.) Two weeks later, the Subject Vehicle shut
down in the middle of an intersection in Downtown Los Angeles. (Compl. ¶ 20.)
BMW’s roadside assistance towed the vehicle to Nick Alexander BMW, which
concluded that the previous repairs had not been performed correctly. (Id.) Nick
Alexander BMW kept the vehicle for four days to perform the necessary repairs. (Id.)
On July 22, 2016, Plaintiff revoked the acceptance of her vehicle in writing and
demanded that BMW repurchase it, which it refused. (Compl. ¶ 22.)
B.

Procedural Background

Accordingly, on November 30, 2015, Plaintiff filed the instant action in the
Superior Court of California, County of Los Angeles, bringing five claims against
Defendants: (1) breach of express warranty under the Song-Beverly Consumer Warranty
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

Act (“Song-Beverly”); (2) breach of the implied warranty of merchantability under SongBeverly; (3) breach of written warranty under the Magnuson-Moss Warranty-Federal
Trade Commission Improvement Act (“MMWA”); (4) breach of the implied warranty of
merchantability under the MMWA; and, (5) negligent repair. (See Compl.) On March 2,
2017, Defendants removed the action to this Court. (See Dkt. No. 1.)

On March 30, 2017, Plaintiff filed the instant Motion seeking to remand the action
to the Superior Court. (See Mot.) Along with her Motion, Plaintiff filed a Request for
Judicial Notice. (See Dkt. No. 9 (hereinafter, “RJN”).) On April 10, 2017, Defendants
filed their Opposition to Plaintiff’s Motion, (see Dkt. No. 12 (hereinafter, “Opp’n”)), and
an objection to Defendants’ Request for Judicial Notice, (see Dkt. No. 11 (hereinafter,
“RJN Obj.”)). Plaintiff replied on April 17, 2017. (See Dkt. No. 15.)
III.

REQUEST FOR JUDICIAL NOTICE

As mentioned above, along with her Motion, Plaintiff files a Request for Judicial
Notice. (See RJN.) Federal Rule of Evidence 201 provides that a court may judicially
notice a fact that (1) “is generally known within the trial court’s territorial jurisdiction,”
or, (2) may “be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). A court “must take judicial notice if a
party requests it and the court is supplied with the necessary information.” See Fed. R.
Evid. 201(c)(2); In re Icenhower, 755 F.3d 1130, 1142 (9th Cir. 2014).
Plaintiff requests that the Court take judicial notice of four documents filed in this
action while it was proceeding in the Superior Court: (1) a proof of service filed on
December 5, 2016; (2) a proof of service filed on December 28, 2016; (3) a proof of
service filed on January 5, 2017; and, (4) a request for entry of default filed on February
9, 2017. (See RJN, Exs. 1–4.) Defendants object to Plaintiff’s request, arguing that only
the existence of these documents is noticeable, not the truth of the facts the documents
contain. (See RJN Obj. at 2.) Defendants dispute the veracity of these documents; thus,
Defendants argue these documents are not subject to judicial notice because their
contents are subject to reasonable dispute. (See RJN Obj. at 3.)
Generally, a court “may take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to matters
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d
244, 248 (9th Cir. 1992) (citation omitted). Thus, as what occurred in this action while it
was proceeding in the Superior Court has a direct relation to Plaintiff’s Motion, the Court
may take judicial notice of the proffered documents. However, Defendants are correct.
“While a court may take judicial notice of a judicial or administrative proceedings which
has a direct relation to the matters at issue, a court can only take judicial notice of the
existence of those matters of public record . . . but not of the veracity of the arguments
and disputed facts contained therein.” United States v. S. Cal. Edison Co., 300 F. Supp.
2d 964, 974 (E.D. Cal. 2004) (internal quotation marks omitted). Therefore, the Court
GRANTS Plaintiff’s request, but takes judicial notice only of the fact that the proffered
documents were filed in the Superior Court, not the veracity of the disputed facts
contained therein (i.e., whether Defendants were actually served at the time and location
indicated on the proofs of service).
IV.

LEGAL STANDARD

Federal courts are of limited jurisdiction and possess only that jurisdiction as
authorized by the Constitution and federal statute. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Original jurisdiction may be established pursuant
to the diversity statute, 28 U.S.C. § 1332. Under § 1332(a)(1), a federal district court has
jurisdiction over “all civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs,” and the dispute is between citizens of
different states. 28 U.S.C. § 1332(a)(1). The United States Supreme Court has
interpreted § 1332 to require “complete diversity of citizenship,” meaning that each
plaintiff must be diverse from each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61,
67–68 (1996).
Under 28 U.S.C. § 1441(a), a civil action may be removed to the district court only
if the plaintiff could have originally filed the action in federal court. This means removal
is proper 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
under § 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). A defendant must file a notice of
removal no later than thirty days after the plaintiff serves it with a copy of the initial
pleading. See 28 U.S.C. § 1446(b)(1).
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

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.
V.

DISCUSSION
A.

Whether Plaintiff Served BMW NA

Plaintiff raises only one argument in support of her Motion: Defendants were
served on December 3, 2016 and, therefore, BMW NA’s removal of this action on March
2, 2017, was untimely. (See Mot.) As noted above, a defendant has thirty days to
remove an action once the plaintiff serves the defendant with the complaint. See 28
U.S.C. § 1446(b)(1). A defendant waives their right to remove if it fails to file a notice of
removal within thirty days.2 See Cantrell v. Great Republic Ins. Co., 873 F.2d 1249,
1256 (9th Cir. 1989). Here, the parties dispute whether Plaintiff ever properly served
BMW NA, thereby triggering the thirty-day removal window.3
California law provides that a plaintiff may serve a corporation by delivering a
copy of the summons and complaint with “the person designated as agent for service of
process.” Cal. Civ. Proc. Code § 416.10(a). The parties agree that BMW NA’s
designated agent is CT Corporation, located at 818 West Seventh Street, Suite 930, Los
Angeles, California 90017. (See Mot. at 6; Opp’n at 4–5.) Plaintiff contends that she
hired a process server who personally served CT Corporation on December 3, 2016. (See
Mot. at 6; see also Declaration of Victor Johnson (Dkt. No. 10-3) (hereinafter, “Johnson
Decl.”) ¶ 2, Ex. A.) BMW NA, however, provides the Declaration of Garth Jacobson, the
acting representations services advisor for CT Corporation, who indicates that CT

2

Under 28 U.S.C. § 1446(b)(3), if it is not clear from the initial complaint that an action is removable,
“a notice of removal may be filed within 30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be
ascertained that the case is one which or has become removable.” 28 U.S.C. § 1446(b)(3). Thus, there
are times when a defendant may remove an action more than thirty days after receipt of the initial
complaint. This provision is not at issue here, however.
3

Defendants do not dispute New Century’s service. (See Opp’n at 2 n.1.)

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

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

Corporation’s database has no record of any such service. (See Declaration of Garth
Jacobson (Dkt. No. 13) (hereinafter, “Jacobson Decl.”) ¶¶ 6–7.)

“Under California law, ‘the filing of a proof of service creates a rebuttable
presumption that the service was proper.’” Avans v. Foster Wheeler Constr. Co., No.
1:10-cv-00922 LJO JLT, 2010 WL 3153972, at *4 (E.D. Cal. Aug. 6, 2010) (quoting Dill
v. Berquist Constr. Co., 24 Cal. App. 4th 1426, 1441 (Cal. Ct. App. 1994)). Here,
however, Plaintiff never filed a proof of service indicating that she served CT
Corporation. Instead, she filed a proof of service on December 5, 2016, while the action
was proceeding in the Superior Court, indicating that she served “BMW of North
America LLC: New Century Alhambra Automobiles Corporation of California aka New
Century BMW; and Does 1 through 50 inclusive” on December 3, 2016 at 12:30 p.m. at
1139 W. Main St., Alhambra, California, 91801. (See RJN, Ex. 1.) This proof of service
does not support Plaintiff’s contention that she served CT Corporation at the correct
address. Plaintiff has proffered no other filed proof of service indicating that she served
CT Corporation. Therefore, Plaintiff is not entitled to the presumption arising from filed
proofs of service.
However, California Evidence Code section 647 “provides that a registered process
server’s declaration of service establishes a[n evidentiary] presumption” regarding the
facts stated in the return. Am. Express Centurion Bank v. Zara, 199 Cal. App. 4th 383,
390 (Cal. Ct. App. 2011); see also Cal. Evid. Code § 647 (providing that “[t]he return of
a process server . . . establishes a presumption, affecting the burden of proving evidence,
of the facts stated in the return”). Along with her Motion, Plaintiff proffers the
Declaration of Victor Johnson—a registered California process server—and an unfiled
copy of a proof of service indicating that Mr. Johnson served CT Corporation on
December 3, 2016, at approximately 3:00 p.m. (See Johnson Decl. ¶ 2, Ex. A.)
Therefore, though Plaintiff is not entitled to the presumption arising from a filed proof of
service, she is entitled to the presumption arising from a registered process server’s
Declaration.
“[A] return of service may be impeached by contradictory evidence.” Avans, 2010
WL 3153972, at *4; see also Am. Express Centurion, 199 Cal. App. 4th at 390 (“Because
of the statutory presumption, defendant was thus required to produce evidence that he
was not served.”). Defendants contend that they have properly rebutted the presumption
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

by providing evidence that BMW NA was not served. (See Opp’n at 7–8.) Specifically,
as mentioned above, Defendants provide Garth Jacobson’s Declaration, in which he
indicates that CT Corporation has no record of receiving any service on BMW NA’s
behalf on December 3, 2016, though it has received service of four other items in this
case between December 2016 and February 2017. (See Jacobson Decl. ¶ 6.) “Once
rebutted, the presumed fact may still be considered by the fact finder, as well as any
reasonable inferences to be derived therefrom, but without regard to the benefit of the
presumption.” In re Quentin H., 230 Cal. App. 4th 608, 614–15 (Cal. Ct. App. 2014)
(citation omitted). However, the court is “not required to accept . . . self-serving evidence
contradicting the process server’s declaration.” Am. Express Centurion, 183 Cal. App.
4th at 390.

Though CT Corporation has no record of receiving service on December 3, 2016,
(see Jacobson Decl. ¶ 6), and Plaintiff did not file the Proof of Service while the action
was proceeding in the Superior Court, Plaintiff has presented evidence indicating that Mr.
Johnson, a process server who has successfully served CT Corporation with other filings
in this proceeding, did in fact serve BMW NA on December 3, 2016, (see Johnson Decl.
¶ 2, Ex. A). Therefore, while BMW NA has presented some evidence indicating that
Plaintiff did not serve it, the Court finds that this evidence is self-serving and may be as
easily attributable to a clerical error as to Plaintiff’s failure to serve.4 Plaintiff’s evidence
indicates that Mr. Johnson has successfully served BMW NA through CT Corporation at
other times during this proceeding and in an unrelated prior proceeding. (See Johnson
Decl. ¶¶ 4–6.) Therefore, the Court finds Mr. Johnson’s Declaration sufficient to
establish that Plaintiff properly served BMW NA.

4

It is not clear whether the Court applies state or federal evidentiary presumptions when deciding
whether service was proper under California law. In this case, however, the applicable law does not
change the outcome. To the extent the Court follows federal rules when deciding what weight to give
the proffered proof of service, under Ninth Circuit law, “a signed return of service constitutes prima
facie evidence of valid service which can be overcome only by strong and convincing evidence.” Sec. &
Exch. Comm’n v. Internet Sols. for Business Inc., 509 F.3d 1161, 1163 (9th Cir. 2007). As explained
above, while CT Corporation apparently has no record of service on December 3, 2016, the failure to
record service may be as easily attributed to a mistake by CT Corporation as to Plaintiff’s failure to
serve. Therefore, the Court finds that BMW NA has not presented strong and convincing evidence
overcoming the presumption to which Mr. Johnson’s Declaration is entitled.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

Date

April 26, 2017

Moreover, for the purposes of removal, where, as here, the parties have presented
directly contradictory evidence that does not clearly indicate whether BMW NA was
properly served, the Court finds that Defendants have failed to meet their heavy burden
of establishing that removal was proper. The court must strictly construe any doubts
regarding the propriety of removal in favor of remanding the action. See Zahn v. T.B.
Penick & Sons, Inc., No. 11cv1322 (AJB), 2011 WL 5118751, at *4 (S.D. Cal. Oct. 27,
2011) (remanding action where the defendant argued improper service in part because
“any questions regarding removal are to be resolved in favor of remanding the case to
state court”); see also Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if
there is any doubt as to the right of removal in the first instance.”); Nasrawi v. Buck
Consultants, LLC, 776 F. Supp. 2d 1166, 1176 (E.D. Cal. 2011) (“To the extent a
relatively close question is presented, the Ninth Circuit requires ‘any doubts about
removability be resolved in favor of remanding the case to state court.” (alteration and
internal quotation marks omitted)). Because Plaintiff has presented evidence that she
properly served BMW NA on December 3, 2016, and BMW NA did not file its notice of
removal until March 2, 2017, it appears that BMW NA’s removal was untimely.
Defendant has not met its heavy burden of establishing otherwise. Therefore, the Court
GRANTS Plaintiff’s Motion and remands the action to the Superior Court.
B.

Whether Plaintiff is Entitled to Attorneys’ Fees

Plaintiff requests that the Court award her attorneys’ fees incurred by filing the
instant Motion because Defendants’ removal was “clearly time-barred and hence
erroneous.” (See Mot. at 7.) “Absent unusual circumstances,” the Court awards
attorneys’ 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). Though the Court finds that Defendants’ have failed to meet their
burden of establishing that removal was proper here, Defendants had a reasonable basis
for removing the action as Plaintiff had not filed a proof of service indicating that she had
served BMW NA at the time Defendants’ removed the action. Therefore, the Court
DENIES Plaintiff’s request for attorneys’ fees.
//
//
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-01707 BRO (SSx)

Title

KATALINA BAUMANN V. BMW OF NORTH AMERICA, LLC ET AL.

V.

Date

April 26, 2017

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Remand but
DENIES her request for attorneys’ fees. This action is REMANDED to the Superior
Court of California, County of Los Angeles, Central District.
:

IT IS SO ORDERED.
Initials of
Preparer

rf

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