Julio Murrieta Alvarado v. FCA US LLC et al

Filing 30

MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal (1) DENYING Plaintiffs Motion to Remand 15 ; and (2) VACATING the June 12, 2017 Hearing : (see document image for specifics). For the foregoing reasons, the Court finds that it has subject matter jurisdiction over this action under 28 U.S.C. § 1332. On that basis, the Court DENIES Plaintiffs Motion to Remand. (Dkt. No. 15.) IT IS SO ORDERED. (ad)

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

EDCV 17-505 JGB (DTBx)

Date June 8, 2017

Title Julio Murrieta Alvarado v. FCA US, LLC, et al.
Present: The Honorable

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order: (1) DENYING Plaintiff’s Motion to Remand (Dkt. No. 15); and
(2) VACATING the June 12, 2017 Hearing (IN CHAMBERS)

Before the Court is Plaintiff’s Motion to Remand the matter to state court. (Dkt. No. 15.)
The Court finds this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78;
L.R. 7-15. After consideration of the papers filed in support of, and in opposition to, the Motion,
the Court DENIES the Motion.
I. BACKGROUND
On December 23, 2016, Julio Murrieta Alvarado (“Plaintiff”) filed his complaint in the
Riverside County Superior Court, alleging state law causes of action for breach of express and
implied warranties under California’s Song-Beverly Consumer Warranty Act, Cal. Civ. Code §§
1792-1795.5 (“Song-Beverly Act”), and fraudulent concealment against FCA US LLC
(“Defendant”), J. Velarde, Inc., dba Crystal Chrysler Jeep Dodge Center,1 and Does 1 through
10. (Notice of Removal, Dkt. No. 1; “Complaint,” Dkt. No. 1-1.) Defendant removed the action
to this Court on March 17, 2017 under 28 U.S.C. §§ 1332, 1441(a), and 1446(a). (Notice of
Removal.) In support of the Notice of Removal, Defendant filed the Declaration of Kris Krueger.
(Krueger Decl., Dkt. No. 2.) On April 18, 2017, Plaintiff filed a Motion to Remand, alleging first
that principles of comity warrant remanding the case, second, that Defendant’s Notice of
Removal fails to establish the citizenship of its foreign members, and third, that Defendant fails to
meet its burden to establish the amount in controversy exceeds $75,000 as required by 28 U.S.C.

1

J. Velarde, Inc., dba Crystal Chrysler Jeep Dodge Center was dismissed with prejudice
on February 21, 2017. (Dkt. No. 1-7.)
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§ 1332. (“Motion,” Dkt. No. 15.) In support, Plaintiff filed the Declaration of Alastair Hamblin,
(Hamblin Decl., Dkt. No. 15-1), as well as Objections to the Krueger Declaration. (Dkt. No. 15-3.)
On May 16, 2017, Defendant filed its Opposition to Plaintiff’s Motion. (“Opposition,” Dkt.
No. 23.) In support of its Opposition, Defendant filed the Declaration of Scott Shepardson,
(Shepardson Decl., Dkt. No. 23-1), which includes the following Exhibits:
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Exhibit 1: relevant translations of Book 2 of the Dutch Civil Code (Dkt. No. 23-2);
Exhibit 2: order denying a motion to remand in Darlene Garcia v. FCA US LLC, case
no. 1:16-cv-00730-DAD-BAM (Dkt. No. 23-3);
Exhibit 3: order denying a motion to remand in Leon Dienes v. FCA US LLC, case
no. 3:16-cv-01812-AJB-BGS (Dkt. No. 23-4);
Exhibit 4: order denying a motion to remand in Dennis L. Hall & Michelle L. Hall v.
FCA US LLC, case no. 1:16-cv-00684-DAD-JLT (Dkt. No. 23-5);
Exhibit 5: order denying a motion to remand in Laura Lee v. FCA US LLC, case no.
2:16-cv-05190-PSG-MRW (Dkt. No. 23-6);
Exhibit 6: order denying a motion to remand in Gloria Lawrence v. FCA US LLC,
case no. 2:16-05452-BRO-GJS (Dkt. No. 23-7);
Exhibit 7: order denying a motion to remand in David John Patty & Sheila Renee
Kirchner v. FCA US LLC, case no. 2:16-cv-01332-MCE-CKD (Dkt. No. 23-8);
Exhibit 8: Certificate of Authenticity of Domestic Business Records Pursuant to
Federal Rule of Evidence 902(11) signed by Jay E. Weaver, and the Warranty Claim
Summary Report for Plaintiff’s vehicle certified as authentic by Mr. Weaver (“Pl
Claim Report,” Dkt. No. 23-9);
Exhibit 9: plaintiff’s motion for remand in Leon Dienes v. FCA US LLC, case no.
3:16-cv-01812-AJB-BGS (Dkt. No. 23-10);
Exhibit 10: plaintiff’s motion for remand in Darlene Garcia v. FCA US LLC, case no.
1:16-cv-00730-DAD-BAM (Dkt. No. 23-11); and
Exhibit 11: plaintiff’s motion for remand in Dennis L. Hall & Michelle L. Hall v. FCA
US LLC, case no. 1:16-cv-00684-DAD-JLT (Dkt. No. 23-12.)

On May 22, 2017, Plaintiff filed his Reply, (“Reply,” Dkt. No. 25), along with the
Supplemental Declaration of Alastair Hamblin, (“Hamblin Supp. Decl., Dkt. No. 25-1), which
attaches the following Exhibits:
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Exhibit A: order for remand issued in the case Doreen Kent, et al. v. FCA US LLC,
ED CV 17-572 PA (AGRx) (Dkt. No. 25-2); and
Exhibit B: notice of removal in Doreen Kent, et al. v. FCA US LLC, ED CV 17-572
PA (AGRx) (Dkt. No. 25-3.)

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Plaintiff also accompanied his Reply with Objections to the Declaration of Scott S.
Shepardson. (Dkt. No. 25-4.)2
II. LEGAL STANDARD
Plaintiff’s claims arise under state law, and Defendant removed on the basis of diversity
jurisdiction pursuant to 28 U.S.C. § 1332. Federal courts are courts of limited jurisdiction,
possessing only that power authorized by Constitution and statute. Gunn v. Minton, 133 S. Ct.
1059, 1064 (2013). Under 28 U.S.C. § 1332(a), federal courts have original jurisdiction over state
law actions where the amount in controversy exceeds $75,000 and the action is between parties
of diverse citizenship. Diversity of citizenship must be complete, and the presence “of a single
plaintiff from the same State as a single defendant deprives the district court of original diversity
jurisdiction over the entire action.” Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
679 (9th Cir. 2006) (citations omitted).
If an amount in controversy is not stated in the complaint, the defendant bears the burden to
establish the amount in controversy at removal. Rodriguez v. AT & T Mobility Servs. LLC, 728
F.3d 975, 981 (9th Cir. 2013). A removing party must initially file a notice of removal that
includes “a plausible allegation that the amount in controversy exceeds the jurisdictional
threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014). A
defendant’s amount in controversy allegation “should be accepted when not contested by the
plaintiff or questioned by the court.” Id. at 553. If “defendant’s assertion of the amount in
controversy is challenged...both sides submit proof and the court decides, by a preponderance of
the evidence, whether the amount-in-controversy requirement has been satisfied.” Id. at 554.
This proof can include affidavits, declarations, or other “summary-judgment-type evidence
relevant to the amount in controversy at the time of removal.” Ibarra v. Manheim Investments,
Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116
F.3d 373, 377 (9th Cir. 1997)). Additionally, the defendant may rely on “reasonable assumptions
underlying the defendant's theory of damages exposure.” Ibarra, 775 F.3d at 1198.
//

2

Plaintiff objects to the Shepardson Declaration as hearsay and lacking in foundation for
his personal knowledge of Dutch Civil Law. (Dkt. No. 25-4, 3.) Plaintiff similarly objects to
Defendant’s Exhibit 1 attached to the Shepardson Declaration. Plaintiff argues that the website
(www.dutchcivillaw.com), which contains the translation of Book 2 of the Dutch Civil Code,
lacks foundation because it “is not operated by any government agency or legal reporting service
but, instead, looks like the private account of a private citizen.” (Id.) Plaintiff, therefore,
maintains that the website cannot be relied on for its accurate statement of Dutch law and the
translation cannot be deemed accurate. (Id.) The Court does not rely on the Shepardson
Declaration, so Plaintiff’s objection is moot.
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III. DISCUSSION
As discussed, for the Court to retain jurisdiction over Plaintiff’s claims, there must be
complete diversity of citizenship between the parties and an amount-in-controversy in excess of
$75,000. The Court now addresses whether Defendant’s have satisfied the complete diversity
and amount-in-controversy requirements by a preponderance of the evidence. 3
A. Amount in Controversy
Plaintiff argues that remand is proper because Defendant fails to establish the amount in
controversy. (Mot. at 9.) Plaintiff maintains that “Defendant’s amount-in-controversy
calculation is deficient and is potentially off by tens-of-thousands of dollars.” (Id. at 11.) In that
vein, Plaintiff asserts that Defendant’s reliance on an approximation of the cash price of the
vehicle is inexplicable; “Defendant bases the amount-in-controversy calculation in each off of
whatever RISC figure they chose, be it the cash price, total cash price, amount financed, or total
sales price, without any rhyme or reason.” (Id. at 12.) Plaintiff argues that because Defendant
fails to provide any legitimate basis for its computation of damages under the Song-Beverly Act, it
has failed to meet its burden. (Id. at 13.)
1. Actual Damages Under the Song-Beverly Act
Plaintiff’s complaint seeks damages under the Song-Beverly Act for breach of express and
implied warranties accompanying the sale of a new 2013 Jeep Wrangler (the “subject vehicle”)
on May 18, 2013. (Compl. ¶¶ 9, 140-54, 155-165.) For breach of the express warranty under the
Song-Beverly Act, Plaintiff seeks: reimbursement of the purchase price of the subject vehicle
offset by the amount attributable to Plaintiff’s use prior to the discovery of nonconformities,
incidental, consequential, and general damages, costs and expenses, including attorney’s fees,
and a civil penalty of up to two times the amount of actual damages. (Id. at ¶¶ 151-54.) For
breach of implied warranty under the Song-Beverly Act, Plaintiff seeks to revoke his acceptance
of the subject vehicle, replacement or reimbursement and rescission of the sales contract under
California Civil Code section 1794, any “cover” damages under California Commercial Code
sections 2711, 2712, and California Civil Code section 1794, and all incidental and consequential
damages. (Id. at ¶¶ 161-65.) Plaintiff also seeks punitive damages and damages for any
diminution of the subject vehicle’s value. (Id. at Prayer for Relief.)
3

The Court notes that Plaintiff also advances comity principles to argue that remand is
warranted in this case: “violations of areas of law traditionally left to states for their own
determination, such as state statutes governing vehicle sales, warranties, consumer protection
laws, damages and contract issues.” (Mot. at 8.) For that reason, Plaintiff asserts that “[i]t is
not the business of federal courts to decide California’s motor vehicle sale regulations.” The
Court, however, will not remand on this basis. The Court routinely interprets state law and does
not find that the comity concerns identified in Plaintiff’s Motion are sufficiently unique or differ
materially from the comity concerns at play in analogous contexts. (Id. at 9.)
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California Civil Code § 1793.2(d)(2)(B) provides that the measure of damages in an action
such as this one includes restitution “in an amount equal to the purchase price paid or payable by
the buyer,” reduced by that amount “directly attributable to use by the buyer” prior to delivery
of the vehicle back to the dealer for correction of the problem that gave rise to the nonconformity
with the warranty. The actual price paid or payable by the buyer includes “any charges for
transportation and manufacturer-installed options, but exclude[es] nonmanufacturer items
installed by a dealer or the buyer, and include[es] any collateral charges such as sales or use tax,
license fees, registration fees, and other official fees.” Cal. Civ. Code § 1793.2(d)(2)(B). The
set-off amount is determined by multiplying the “actual price of the new motor vehicle paid or
payable by the buyer...by a fraction having its denominator 120,000 and having as its numerator
the number of miles traveled by the new motor vehicle prior to the time the buyer delivered the
vehicle” for correction of the problem. Civ. Code § 1793.2(d)(2)(C).
The Retail Installment Sale Contract (“RISC”) attached as Exhibit 1 to Plaintiff’s state court
Complaint shows that the total cash price paid for the subject vehicle was $39,386.00. (Compl.,
Ex. 1.) Defendant maintains that the actual damages under the Song-Beverly Act will be at least
$43,717.12 before subtracting the mileage offset. (Opp’n at 16.) Defendant arrives at the
$43,717.12 figure by adding an estimate of $1,000 in the amount of interest Plaintiff has paid to
date,4 as well as document preparation fees, ($80.00), a DMV filing fee ($26.00), and sales tax
($3,225.20) to the total cash price of the subject vehicle. (Opp’n at 17.) Plaintiff argues that it is
improper to consider interest when considering the amount-in-controversy. (Reply at 8.)
Plaintiff, however, seeks restitution, incidental, consequential, and general damages, costs and
expenses for alleged violations of the Song-Beverly Act claims. Under the Song-Beverly Act, the
actual price paid or payable by the buyer includes any paid finance charges. See Mitchell v. Blue
Bird Body Co., 80 Cal. App. 4th 32, 37 (2000); Id. at 36 (“Section 1790.4 declares the remedies
provided by this chapter [the Song–Beverly Consumer Warranty Act] are cumulative and shall
not be construed as restricting any remedy that is otherwise available....”)(internal quotation
marks omitted).
As noted above, the restitution awardable under § 1793.2(d)(2)(B) must be reduced by the
amount directly attributable to use (as measured by miles driven) by the consumer prior to the
first repair (or attempted repair) of the problem as pro-rated against a base of 120,000 miles. Cal.
Civ. Code § 1793.2(d)(2)(B). In Plaintiff’s Complaint, he alleges that he delivered the subject
vehicle to an authorized FCA US LLC repair facility for a recall “[o]n or around June 28, 2014.”
(Compl. ¶ 97.) Defendant’s warranty claim records show that the first warrantable claim on this
vehicle was paid at 11,637 miles, with a repair date of July 1, 2014. (Shepardson Decl.; Pl Claim
Report.) Defendant then used 11,637 miles in the calculation as “the first relevant repair” to
generate a mileage offset of $3,763.00. (Opp’n at 22.) On that basis, Defendant reduced
Plaintiff’s actual damages to $39,954.92. (Id.) Based on Defendant’s submissions, the Court
4

The RISC shows that Plaintiff agreed to pay 2.54% interest beginning on May 21, 2013
and continuing until June 2, 2019. (Compl. at Ex. 1.) The total finance charges contained in the
RISC are $2,054.68. (Id.)
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finds $39,954.92 to be a reasonable good-faith estimate of Plaintiff’s actual damages if he were to
succeed on his Song-Beverly Act claims.
Plaintiff challenges Defendant’s method of measuring his actual damages. Yet, neither his
Motion nor his Reply offer an alternative to the total cash price he paid for the subject vehicle in
estimating his actual damages. Furthermore, in arguing Defendant’s calculation is defective,
Plaintiff does not indicate what the appropriate mileage offset should be. As such, the Court
finds that Plaintiff has failed to rebut Defendant’s showing. Thus, the Court concludes that
Defendant’s submissions are sufficient to establish by a preponderance of evidence that
Plaintiff’s Song-Beverly Act damages are at least $39,954.20.
2. Civil Penalties
As discussed, Plaintiff seeks a civil penalty of up to two times the amount of actual damages.
(Compl. ¶ 154.) “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 07cv-00610-AHS-PLAx, 2007 WL 5074883, at *4 (C.D. Cal. Dec. 26, 2007). The Song-Beverly
Act provides that a civil penalty of twice the amount of the actual damages is available pursuant
to California Civil Code §§ 1794(c) and (e). A conservative estimate of civil penalties based on
the purchase price minus the mileage offset is at least $71,246. Further, based on Defendant’s
reasonable estimate of Plaintiff’s actual damages, the civil penalty award could be up to
$79,908.40.
3. Attorney’s Fees
As mentioned above, Plaintiff’s Complaint seeks an award of attorney’s fees. (Compl. at
Prayer for Relief.) An award of attorney’s fees may be considered in tabulating the amount in
controversy. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155–56 (9th Cir. 1998). The
parties have not proffered any evidence of Plaintiff’s attorney’s fees as of the date of removal.
Still, the Court agrees with Defendant that the attorney’s fees “even if minimal, serve only to
increase the amount in controversy.” (Opp’n at 20.) Upon reviewing Defendant’s submissions
together with the claims alleged and damages requested in Plaintiff’s Complaint, the Court finds
that Defendant has established by a preponderance of the evidence that the jurisdictional
minimum of $75,000 has been met.
B. Diversity of Citizenship
Plaintiff argues that absent from Defendant’s Notice of Removal are any facts “regarding the
laws under which Fiat Chrysler Automobiles, N.V. is organized, its capacity to sue and be sued,
and whether it is recognized as a juridical person under the laws of the jurisdiction in which it is
organized.” (Mot. at 15.) Plaintiff therefore contends that Defendant cannot sufficiently

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establish the citizenship of its foreign members and thus, cannot establish complete diversity.
(Mot. at 16-17, 14.) 5
A natural person who is a United States citizen is a citizen of the state in which he is
domiciled. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). “A person’s
domicile is her permanent home, where she resides with the intention to remain or to which she
intends to return.” Id. (citing Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986)). “An LLC is a
citizen of every state of which its owners/members are citizens.” Johnson v. Columbia
Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). To determine the citizenship of
foreign legal entities, the court asks whether “the entity is considered a juridical person under the
law that created it.” Cohn v. Rosenfeld, 733 F.2d 625, 629 (9th Cir. 1984). Courts look to
whether the foreign entity has the capacity to both sue and be sued in its own name, whether any
recovery in such litigation becomes an asset of the entity, and whether the foreign entity is
recognized as a legally independent organized enterprise under the laws of the relevant
jurisdiction. Id.
Plaintiff is a citizen of California. (Compl. ¶ 2.) Both FCA US LLC and its sole member
FCA North America Holding LLC are LLCs. (Krueger Decl. ¶¶ 2, 3.) Their citizenship,
therefore, depends on the citizenship of Fiat Chrysler Automobiles, N.V., the sole member of
FCA North America Holding LLC. (Id. at ¶ 4.) Fiat Chrysler Automobiles N.V. is a public
limited liability company pursuant to the laws of the Netherlands and has its principal executive
office and headquarters in London, United Kingdom. (Id. at ¶ 7.) Since Fiat Chrysler
Automobiles, N.V. is a foreign corporate entity, the Court looks to the laws of the Netherlands to
determine whether it is considered a juridical person. Defendant has submitted the Declaration
of Kris Krueger, the Senior Staff Counsel of FCA US LLC, describing Fiat Chrysler Automobiles
N.V. as a public limited liability company (naamloze vennotschap) under Dutch law. (Id. at ¶ 7.)6
Kris Krueger further declares that under Dutch law, Fiat Chrysler Automobiles N.V. may sue in
5

Plaintiff points out that complete diversity was not established in Defendant’s Notice of
Removal. Defendant may, however, submit evidence of the parties’ citizenship in an opposition
to a motion to remand and satisfy its burden. Waller v. Hewlett-Packard Co., 11CV0454-LAB
RBB, 2011 WL 8601207, at *2 (S.D. Cal. May 10, 2011) (“... [A] party can supplement its
showing in an opposition to a motion to remand.”) (citing Cohn v. Petsmart, Inc., 281 F.3d 837,
840 n.1 (9th Cir. 2002)) (“[T]he district court did not err in construing Petsmart’s opposition as
an amendment to its notice of removal”)).
6

Plaintiff objects to the Declaration of Kris Krueger as hearsay and lacking in personal
knowledge and foundation. (Dkt. No. 15-3, 3-4.) Specifically, Plaintiff argues that Kris Krueger,
as an employee, of FCA US LLC, has provided no basis for his personal knowledge regarding the
corporate and legal status of Fiat Chrysler Automobiles, N.V., a foreign entity, by which he is not
employed. (Id. at 3.) The Court overrules the objection. Mr. Krueger declares that he has
personal knowledge of the facts attested to in his declaration. Moreover, the Court finds no
reason to question his knowledge of the corporate and legal status of entities that are related to
his employer.
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its own name in the courts of the Netherlands, and may obtain recovery on its own behalf from
such lawsuit under Dutch law. (Id. at ¶¶ 8, 9.)
The Court concludes that the evidence submitted by Defendant is sufficient to establish that
Fiat Chrysler Automobiles N.V. is a juridical person under Dutch law. The Court, therefore,
finds that defendant FCA US LLC is not a citizen of California. Accordingly, Defendant has
successfully established that the parties are completely diverse by a preponderance of the
evidence.
IV. CONCLUSION
For the foregoing reasons, the Court finds that it has subject matter jurisdiction over this
action under 28 U.S.C. § 1332. On that basis, the Court DENIES Plaintiff’s Motion to Remand.
(Dkt. No. 15.)
IT IS SO ORDERED.

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