Maria Serrano v. Pacific Coast Feather Cushion Co. et al

Filing 24

MINUTES OF IN CHAMBERS - ORDER GRANTING PLAINTIFF'S MOTION TO REMAND ACTION TO STATE COURT by Judge Dolly M. Gee: Plaintiff's Motion to Remand 17 is GRANTED and this case is REMANDED to Los Angeles County Superior Court, Case No. BC659563. All scheduled dates and deadlines are VACATED. ( MD JS-6. Case Terminated. ) Court Reporter: Not Reported. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 17-4414-DMG (JEMx)

Title Maria Serrano v. Pacific Coast Feather Cushion Co., et al.
Present: The Honorable

JS-6 / REMAND

August 28, 2017
Page

1 of 6

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS - ORDER GRANTING PLAINTIFF’S MOTION TO
REMAND ACTION TO STATE COURT [DOC. # 17]
On May 2, 2017, Plaintiff Maria Serrano filed a Class Action Complaint in the Los
Angeles County Superior Court against Defendants Pacific Coast Feather Cushion Co. and
Pacific Coast Feather Co. (collectively “Defendants”),1 alleging the following California state
law causes of action: (1) failure to provide meal periods; (2) failure to authorize or permit rest
periods; (3) failure to pay all wages due upon separation of employment; (4) failure to furnish
accurate wage statements; and (5) violation of California Business and Professions Code
§ 17200, et seq. Removal Notice, Ex. 1b, (“Complaint”) [Doc. # 1-1.] On June 14, 2017,
Defendants filed a notice of removal to this Court asserting diversity jurisdiction and jurisdiction
under the Class Action Fairness Act (“CAFA”). Removal Notice [Doc. # 1].
On July 14, 2017, Plaintiff filed the instant motion to remand (“MTR”) this case to state
court on the grounds that Defendants have failed to show that: (1) the amount in controversy
pertaining to Plaintiff’s individual claims exceeds $75,000, and (2) the amount in controversy of
the class’s claims exceeds $5,000,000. [Doc. # 17.] On July 28, 2017, Defendants filed an
opposition (“Opp’n”). [Doc. # 19.] Plaintiff filed a reply (“Reply”) on August 4, 2017.
[Doc. # 21.]
I.
FACTUAL ALLEGATIONS
Plaintiff alleges that during the four-year period preceding the filing of her Complaint
(i.e., four years prior to May 2, 2017), she was employed by Defendants, which are
manufacturers of “down feather items in facilities in California.”2 See Compl. at ¶¶ 1–2, 11, 20.
She intends to represent a class of “[a]ll persons currently or formerly employed as non-exempt
employees by Defendants in the State of California within four years prior to the filing of this
1
2

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Plaintiff also named Does 1–20 as Defendants. See Compl. at ¶ 13.
The Complaint does not specify Plaintiff’s former job title or responsibilities. See Compl. at ¶ 11.
CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-4414-DMG (JEMx)

Title Maria Serrano v. Pacific Coast Feather Cushion Co., et al.

JS-6 / REMAND

Date

August 28, 2017
Page

2 of 6

action to the present” and a subclass of members “who separated their employment from
Defendants within three years prior to the filing of this action to the present.” See Compl. at ¶¶
20–21. Further, she claims that “[d]uring the relevant time period,” Defendants failed to:
“provide lawful meal periods[,] . . . authorize or permit lawful rest periods[,] . . . provide
accurate semi-monthly itemized wage statements[,] and . . . pay all wages due upon separation of
employment.” See id. at ¶¶ 4, 41, 48, 54, 61, 69. Moreover, although Plaintiff claims that
“Defendants have engaged in a pattern of wage and hour violations[,]” see id. at ¶ 3, she does not
specify the frequency with which these purported violations of state law occurred. See, e.g., id.
at ¶ 43 (“At all relevant times, Defendants failed to pay Plaintiff and class members the full meal
period premium for missed and untimely meal periods . . . .”). Furthermore, Plaintiff seeks, on
behalf of herself and others similarly situated, monetary relief for these alleged violations, along
with “interest, attorney’s fees, costs[,] . . . expenses and penalties[,]” and “injunctive relief and
restitution[.]” See id. at ¶¶ 5–6.
II.
LEGAL STANDARD
Pursuant to 28 U.S.C. § 1332(a)(1), a district court shall have jurisdiction over a civil
action where the matter in controversy exceeds the sum or value of $75,000 and there is
complete diversity of citizenship between the parties (“traditional diversity jurisdiction”).
Further, the Class Action Fairness Act (“CAFA”) affords district courts jurisdiction “over class
actions in which the class members number at least 100, at least one plaintiff is diverse in
citizenship from any defendant, and the aggregate amount in controversy exceeds $5 million,
exclusive of interest and costs.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir.
2015) (citing 28 U.S.C. § 1332(d)). Further, pursuant to 28 U.S.C. § 1441(a), an action may be
removed from a state court to a federal district court if the latter would have had “original
jurisdiction” over the action had it been filed in that court.
If a complaint does not specify a particular amount of damages and the plaintiff
challenges jurisdiction after removal, the removing defendant bears the burden of establishing by
a preponderance of the evidence that the amount in controversy exceeds the jurisdictional
threshold. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996); Ibarra,
775 F.3d at 1197. A district court “may ‘require parties to submit 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)). “[R]emoval ‘cannot be based simply upon conclusory
allegations where the [complaint] is silent’” as to the amount of damages.” Id. (quoting Allen, 63

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

JS-6 / REMAND

Date

CV 17-4414-DMG (JEMx)

Title Maria Serrano v. Pacific Coast Feather Cushion Co., et al.

August 28, 2017
Page

3 of 6

F.3d at 1335). Further, “a defendant cannot establish removal jurisdiction by mere speculation
and conjecture, with unreasonable assumptions.” See Ibarra, 775 F.3d at 1197.
With regard to traditional diversity jurisdiction in particular, the Ninth Circuit “strictly
construe[s] the removal statute against removal jurisdiction.” See Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). “Federal jurisdiction [under that statute] must be rejected if there is
any doubt as to the right of removal in the first instance.” See id. (emphasis added). Put
differently, there is a “strong presumption against removal” in the context of traditional diversity
jurisdiction.3 See id. “If it is unclear what amount of damages the plaintiff has sought . . . then
the defendant bears the burden of actually proving the facts to support jurisdiction, including the
jurisdictional amount.” Id. at 566–67.
III.
DISCUSSION
Plaintiff does not dispute the diversity of the parties for the purposes of traditional
diversity jurisdiction or CAFA jurisdiction, or the numerosity of the class under CAFA. MTR at
1. Plaintiff challenges only Defendants’ assertions that: (1) the amount in controversy on her
individual claims exceeds $75,000 such that traditional diversity jurisdiction is proper, and
(2) the amount in controversy for the claims belonging to the putative class and subclass exceeds
the $5,000,000 jurisdictional threshold for CAFA jurisdiction. Id.
A.

Traditional Diversity Jurisdiction

With regard to Plaintiff’s individual claims, Defendants contend that Plaintiff can recover
between $102,873 and $220,460. See Opp’n at 8. This calculation is based upon Defendants’
assumptions that: (1) Plaintiff can recover $25,512 for Defendants’ alleged violations of state
employment law, and (2) Plaintiff can recover attorney’s fees ranging from $77,413 to $195,000.
See id. Therefore, Defendants’ jurisdictional theory is wholly reliant upon their ability to show
the amount of attorney’s fees Plaintiff may recover.4
3

Although the U.S. Supreme Court has held that “no antiremoval presumption attends cases invoking
CAFA[,]” the Court declined to “decide whether such a presumption is proper in mine-run diversity cases.” See
Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (2014). Further, after Dart, the Ninth
Circuit reaffirmed that if a plaintiff challenges CAFA jurisdiction, the removing defendant still bears “the burden to
show by a preponderance of the evidence that the aggregate amount in controversy exceeds $5 million . . . .” See
Ibarra, 775 F.3d at 1197.
4
The Court notes that there is a “split as to whether a court should consider only attorneys’ fees incurred as
of the time of removal or fees reasonably likely to be incurred after the date of removal.” See Bigby v. DS Waters of
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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-4414-DMG (JEMx)

Title Maria Serrano v. Pacific Coast Feather Cushion Co., et al.

JS-6 / REMAND

Date

August 28, 2017
Page

4 of 6

Defendants attempt to satisfy their burden by citing cases that supposedly had
“allegations similar to this one” and involved one plaintiff who recovered attorney’s fees ranging
from $77,413 to $195,000. See Opp’n at 7–8 (citing, inter alia, Pantoja v. Brent, 2013 WL
3340154, Cal. Super. Court, San Mateo Cty. (2013)). Nonetheless, aside from brief explanatory
parentheticals that use words to the effect that a certain amount of attorney’s fees was awarded
“to a single plaintiff in a wage and hour case[,]” Defendants do not compare the allegations and
circumstances of those cases with those of the instant matter. See id. Thus, Defendants’ citation
to these cases does not satisfy their burden of showing the amount in controversy through
evidence and argument. See Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir. 2015)
(suggesting that defendants may satisfy their burden of showing the amount in controversy by
“submit[ting] evidence and argument”).
Furthermore, Defendants also submit evidence that in 2014, Plaintiffs’ counsel filed a
brief in another class action representing that their hourly billing rate was $450–$700. See
Hilgenfeld Decl., Ex. 14 at 33. Defendants point out that “[a]n average rate of $600 / hour would
only require 125 hours of work to litigate the claim through a jury trial” in order for Plaintiff’s
attorney’s fees alone to equal $75,000. See Opp’n at 8. Nevertheless, not only do Defendants
fail to explain why they choose “$600 / hour” as “[a]n average rate” used to compute the amount
of attorney’s fees, but they also fail to provide any evidence indicating the number of hours that
Plaintiff’s counsel could potentially bill to litigate her individual claims. See id. While it is not
entirely unfathomable that Plaintiff’s counsel would spend over 125 hours on that task, the Court
would have to erroneously rely upon “mere speculation and conjecture” to arrive at that
conclusion on this record, especially because that assumption would yield attorney’s fees that are
nearly three times the damages and penalties that Defendants claim Plaintiff may recover. See
Ibarra, 775 F.3d at 1197 (“[A] defendant cannot establish removal jurisdiction by mere
speculation and conjecture, with unreasonable assumptions.”).
For these reasons, the Court concludes that Defendants have failed to submit sufficient
“summary-judgment-type-evidence” to overcome the “strong presumption against removal”
premised on traditional diversity jurisdiction. See 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)); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

Am. Inc., No. CV 12-01362 MMM CWX, 2013 WL 394876, at *7 (C.D. Cal. Jan. 30, 2013) (collecting cases).
Because of this Court’s disposition of Plaintiff’s MTR, the Court need not resolve this issue.
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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-4414-DMG (JEMx)

Title Maria Serrano v. Pacific Coast Feather Cushion Co., et al.
B.

JS-6 / REMAND

Date

August 28, 2017
Page

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CAFA Jurisdiction

Defendants do not explicitly identify the purported aggregate amount in controversy for
Plaintiff’s class action claims. See Opp’n at 9–13. When the alleged subtotals for the different
monetary items of recovery are added together, however, it becomes apparent that Defendants
are contending that the class could recover $5,278,624.90. See id. at 9–12. This figure relies
upon, among other things, the assumption of a 100% violation rate in which Defendants violated
the applicable provisions of the California Labor Code at every possible opportunity during the
relevant period. See Opp’n at 9–11. Under this assumption, Defendants failed to provide each
employee with the required meal and/or rest breaks on every shift during the class period.5 See
id. at 11.
Defendants contend that a 100% violation is appropriate because their alleged unlawful
business practice “resulted in Plaintiff and all putative class members missing their meal and rest
breaks.” See Opp’n at 9. To support this contention, Defendants submit a declaration from one
of their human resources officials, see Opp’n at 9; Montanari Decl. at ¶ 2, who states that the two
Defendants “have similar practices for meal and rest breaks.” See id. at ¶ 6 (emphasis added).
Specifically, she claims that “[t]he individuals working on the same schedule will receive
notification of the meal and rest breaks through the use of an alarm bell.” Id. Defendants also
rely upon allegations from Plaintiff’s Complaint that “[a]t all relevant times, Defendants failed to
pay Plaintiff and class members the full meal period [premium] for missed and untimely meal
periods” and/or “the full rest period premium for missed or interrupted rest periods . . . .” See
Opp’n at 9 (emphasis added) (quoting Compl. at ¶¶ 43, 50) (internal quotation marks omitted).
In this regard, the instant case is akin to Ibarra. There, the defendant-employer asserted
that it could use the 100% violation rate to determine meal and rest period penalties because the
operative complaint alleged that the employer had “a ‘pattern or practice of failing to pay [its]
Non-Exempt employees for working off-the-clock,’ and that [the employer] ‘[hid] behind written
policies that purport to forbid these unlawful labor practices while at the same time maintaining
an institutionalized unwritten policy that mandates these unlawful practices.’” See id. at 1198.
The Ninth Circuit rejected this assumption as “not grounded in real evidence[,]” reasoning that
“a ‘pattern or practice’ of doing something does not necessarily mean always doing something.”
See id. at 1198–99.

5

Defendants also utilize a 100% violation rate to ascertain the amounts in controversy for the wage
statement and waiting time claims, respectively. See Opp’n at 9–11. Nevertheless, Defendants do not explain why
this violation rate is appropriate for these claims. See id.
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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-4414-DMG (JEMx)

Title Maria Serrano v. Pacific Coast Feather Cushion Co., et al.

JS-6 / REMAND

Date

August 28, 2017
Page

6 of 6

Likewise, although the evidence and allegations upon which Defendants rely are likely
sufficient to demonstrate that they both currently have similar meal and rest break practices (i.e.,
using an alarm bell to notify employees of such breaks), Defendants do not show that it is more
likely than not that these practices allegedly violated employees’ state law rights to meal and rest
breaks on each and every shift within the putative class period. Put differently, Defendants fail
to establish that—“within four years prior to the filing of this action to the present”—Compl. at
¶ 20, these practices potentially had the effect of denying employees a meal or rest break every
time they were entitled to one. Further, like the plaintiff in Ibarra, Plaintiff in the instant matter
vaguely alleges that “Defendants have engaged in a pattern of wage and hour violations . . . .”
and fails to aver the frequency of these violations.6 See Compl. at ¶ 3.
Accordingly, the utilization of a 100% violation rate to calculate the putative class’s
monetary recovery for its meal and rest break claims is “not grounded in real evidence.” See
Ibarra, 775 F.3d at 1199. Further, Defendants’ failure to adequately prove this aspect of the
amount in controversy deprives the Court of CAFA jurisdiction because, according to
Defendants, it accounts for $3,129,874.36 of the putative class’s purported total potential
recovery of $5,278,624.90. See Opp’n at 9–12.
IV.
CONCLUSION
In light of the foregoing, Plaintiff’s motion is GRANTED and this case is REMANDED
to Los Angeles County Superior Court. All scheduled dates and deadlines are VACATED.
IT IS SO ORDERED.

6

A declaration claiming that Defendants used this type of alarm bell notification practice throughout the
class period and that the alarm bell rang/rings at the same point(s) during each shift might have satisfied their
burden of justifying the 100% violation rate assumption.
Moreover, Defendants cite several district court cases that they claim support their assertion that a 100%
violation rate is appropriate. See Opp’n at 9–10 (citing Korn v. Polo Ralph Lauren Corp., 536 F. Supp. 2d 1199,
1205 (E.D. Cal. 2008); Muniz v. Pilot Travel Ctrs., No. CIV. S-07-0325 FCD EFB, 2007 WL 1302504, at *4 (C.D.
Cal. May 1, 2007); Alvarez v. Ltd. Express, LLC, No. 07CV1051 IEG (NLS), 2007 WL 2317125, at *3–4 (S.D. Cal.
Aug. 8, 2007); Coleman v. Estes Express Lines, Inc., 730 F. Supp. 2d 1141, 1149–50 (C.D. Cal. 2010)). These cases
not only pre-date the Ibarra decision, but they are also not binding authority.
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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT