Eduardo Domingo Valero v. MKS Instruments et al

Filing 24

ORDER DENYING PLAINTIFF'S MOTION TO REMAND [ECF No. 15 ] by Judge John W. Holcomb. For the foregoing reasons, the Court hereby ORDERS as follows: Valero's instant Motion to remand [ECF No. 15] is DENIED, and the hearing on th at Motion is VACATED. The Scheduling Conference remains on calendar for January 10, 2025, at 9:00 a.m. Valero's claim for relief under the UCL is DISMISSED without prejudice. Valero is DIRECTED to file an amended pleading, if at all, no late r than January 17, 2025. If Valero chooses to file an amended pleading, then he is also DIRECTED to file contemporaneously therewith a Notice of Revisions to Complaint that provides the Court with a redline version that shows the amendments. Defendants are DIRECTED to file their respective responses Valero's operative pleading no later than February 7, 2025. IT IS SO ORDERED. (yl)

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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EDUARDO DOMINGUEZ VALERO,
Plaintiff,

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v.
MKS INSTRUMENTS, a
Massachusetts Corporation;
NEWPORT CORPORATION, a
Nevada Corporation;
BHAVIK PATEL, an individual; and
DOES 1-100, inclusive,
Defendants.

Case No. 8:24-cv-01948-JWH-ADS
ORDER DENYING PLAINTIFF’S
MOTION TO REMAND [ECF
No. 15]

Before the Court is the motion of Plaintiff Eduardo Dominguez Valero to

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remand this action to Orange County Superior Court. 1 Defendants MKS

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Instruments, Newport Corporation, and Bhavik Patel oppose 2 the Motion, and

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Valero filed a reply. 3 The Court concludes that this matter is appropriate for

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resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. For the reasons

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detailed below, Valero’s instant Motion to remand is DENIED.

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I. BACKGROUND

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Valero commenced this putative class action in state court in July 2024.4

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Valero asserts the following 10 claims for relief against Defendants—his former

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employers: 5

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x failure to pay overtime wages;

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x failure to pay minimum wages;

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x failure to provide meal periods;

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x failure to provide rest periods;

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x waiting time penalties;

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Pl.’s Mot. for Order Remanding Action to State Court (the Motion”)
[ECF No. 15]. Plaintiff’s name is listed as “Eduardo Dominguez Valero” in the
Complaint (the “Complaint”) [ECF No. 4-1] (emphasis added). The Notice of
Removal [ECF No. 1] renders Plaintiff’s name as “Eduardo Domingo Valero”
(emphasis added) in the Caption (which is also reflected on the CM/ECF
docket), but as “Eduardo Dominguez Valero” in the background information at
Paragraph 1 (emphasis added). Defendants MKS Instruments and Newport
Corporation appear to have made a typographical error when they prepared the
Notice of Removal. The Court will refer to Plaintiff as “Eduardo Dominguez
Valero.”
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Defs.’ Opp’n to the Motion (the “Opposition”) [ECF No. 19].

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Pl.’s Amended Reply in Supp. of the Motion (the “Reply”) [ECF
No. 23].

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See Complaint.

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See generally id.
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x wage statement violations;

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x failure to pay timely wages;

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x failure to indemnify;

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x violation of Cal. Lab. Code § 227.3; and

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x unfair competition. 6

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In September 2024, Defendants MKS Instruments and Newport

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Corporation removed the action,7 arguing that this Court has jurisdiction under

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the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2), because the

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amount in controversy exceeds $5 million exclusive of interest and costs and

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minimal diversity exists. 8

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II. LEGAL STANDARD

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CAFA provides federal subject matter jurisdiction over a putative class

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action case if (1) the proposed plaintiff class is not less than 100 members;

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(2) the parties are minimally diverse; and (3) the aggregate amount in

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controversy exceeds $5 million. See 28 U.S.C. § 1332(d)(2) & (5)(B).

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“Congress intended CAFA to be interpreted expansively.” Ibarra v. Manheim

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Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015).

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The party seeking removal bears the burden of establishing federal subject

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matter jurisdiction under CAFA. See Abrego Abrego v. Dow Chem. Co., 443 F.3d

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676, 683 (9th Cir. 2006). When the amount in controversy is not apparent from

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the face of the complaint, the removing party “must prove by a preponderance

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of the evidence that the amount in controversy requirement [under CAFA] has

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been met.” Id. Generally, “a defendant’s notice of removal need include only a

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plausible allegation that the amount in controversy exceeds the jurisdictional

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See generally id.

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See Notice of Removal.

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See id. at ¶ 9.
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threshold.” However, when a plaintiff contests the amount in controversy put

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forth by the defendant, “[e]vidence establishing the amount is required.” Dart

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Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014). The parties, thus, “may

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submit evidence outside the complaint, including affidavits or declarations, or

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other ‘summary-judgment-type evidence relevant to the amount in controversy

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at the time of removal.’” Ibarra, 775 F.3d at 1197 (quoting Singer v. State Farm

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Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). “Under this system, a

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defendant cannot establish removal jurisdiction by mere speculation and

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conjecture, with unreasonable assumptions.” Id.

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III. ANALYSIS

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A.

CAFA Jurisdiction—Amount in Controversy
Under CAFA, the Court has “original jurisdiction of any civil action in

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which the matter in controversy exceeds the sum or value of $5,000,000,

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exclusive of interest and costs, and is a class action in which” there is minimal

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diversity. 28 U.S.C. § 1332(d)(2). To remove a case to federal court under

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CAFA, a defendant must demonstrate that the amount in controversy exceeds

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$5 million, exclusive of interest and costs. See id. The general rule is that a

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removing defendant’s well-pleaded amount-in-controversy allegations “should

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be accepted when not contested by the plaintiff or questioned by the court.”

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Dart Cherokee, 574 U.S. at 87; see also Ibarra, 775 F.3d at 1197 (when evaluating

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the amount in controversy, courts first look to the complaint).

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However, when, as is the case here, the plaintiff challenges the removing

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defendant’s jurisdictional allegation, “removal . . . is proper on the basis of an

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amount asserted” by the defendant only “if the district court finds, by the

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preponderance of the evidence, that the amount in controversy exceeds”

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$5 million. Dart Cherokee, 574 U.S. at 88; see also 28 U.S.C. § 1446(c)(2)(B).

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“In such a case, both sides submit proof” so that the Court can decide “whether

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the amount-in-controversy requirement has been satisfied.” Dart Cherokee, 574
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U.S. at 88 (emphasis added). The preponderance of the evidence standard

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means that the “defendant must provide evidence establishing it is ‘more likely

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than not’ that the amount in controversy” meets or exceeds the jurisdictional

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threshold. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.

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1996) (emphasis added). The defendant must set forth the underlying facts

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supporting its assertion that the amount in controversy exceeds the statutory

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minimum, and the Court may consider “summary-judgment-type evidence

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relevant to the amount in controversy at the time of removal,” such as affidavits

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or declarations. Ibarra, 775 F.3d at 1197. There is no presumption against

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removal in CAFA cases. See Dart Cherokee, 574 U.S. at 89.

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Defendants estimate that the amount in controversy is at least
$13,855,763.56, calculated as follows:
x $500,083.25 on unpaid wage claims, based upon the assumption that

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583 putative class members who earned average salaries of $29.99 worked

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15 minutes of overtime per week for each week that those class members

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were employed;

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x $4,000,666.00 on meal period claims, based upon the assumption that

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each of the 583 putative class members experienced two meal period

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violations per week for each week that those class members were

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employed;

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x $4,000,666.00 on rest period claims, based upon the assumption that each

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of the 583 putative class members experienced two rest period violations

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per week;

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x $1,623,046.60 on waiting time penalties, based upon the assumption that

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243 putative class members who earned average salaries of $27.83 per

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hour each experienced a waiting time violation;

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x $960,150.00 on wage statement penalties, based upon the assumption that

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each wage statement for each of 407 class members violated California

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law; and
x $2,771,152.71 on attorneys’ fees, calculated as 25% of the total class

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recovery.9

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Valero does not challenge Defendants’ assertions regarding the number of

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putative class members or the average salaries of those class members. 10

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Instead, Valero argues that Defendants have grossly inflated the amount in

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controversy by making unreasonable assumptions regarding the rate of violations

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that the class members likely experienced. In particular, Valero contends that he

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alleged only that “some” class members experienced violations “at times,”

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which requires the Court to assume much lower violation rates than those that

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Defendants have proposed. 11 Valero asserts that the Court should assign $0 in

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value to most or all of Valero’s claims because Defendants have not proven any

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amount greater than that. 12

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“[T]he amount in controversy reflects the maximum [amount] the

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plaintiff could reasonably recover.” Arias v. Residence Inn by Mariott, 936 F.3d

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920, 927 (9th Cir. 2019) (emphasis in original). In other words, the amount in

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controversy reflects the maximum number of potential violations for which the

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class members may recover, not the actual number of violations that occurred.

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See id. Valero’s arguments appear to challenge whether Defendants’

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assumptions reflect the actual rate of violations, not whether those assumptions

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See generally id.; see also Decl. of Kay Nishii re. Notice of Removal (the
“Nishii Declaration”) [ECF No. 3].

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See generally Motion.

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See generally id.

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See id. at 8:10-12.
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are reasonable in view of the potential numbers of violations. 13 Moreover,

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“when the defendant’s assertion of the amount in controversy is challenged by

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plaintiffs in a motion to remand, . . . both sides submit proof” so that the court

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can “decide[] where the preponderance lies.” Id. at 1198. Defendants have

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submitted evidence that supports their calculations, 14 and the Court credits that

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evidence. Valero, however, has not submitted any evidence to contradict

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Defendants’ assumptions. Nor has Valero identified the violation rates that he

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believes to be appropriate.

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Valero argues that, under Ninth Circuit precedent, he is not required to

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present any evidence because he has mounted a factual attack on Defendants’

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amount in controversy calculations, not a facial attack. 15 Valero relies on Harris

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v. KM Industrial, Inc., 980 F.3d 694 (9th Cir. 2020). In Harris, the Ninth Circuit

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found a defendant’s assumptions unsupported because the defendant had not

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justified its conclusions regarding class membership. See id. at 701. For

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example, the defendant had not provided proof that class members “worked

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shifts that would qualify them as members” of various sub-classes. See id. Here,

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in contrast, Defendants have provided a declaration that establishes the number

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of potential class members for each violation and that explains why those class

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members may have suffered the alleged violation. 16

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Even setting aside Valero’s burden of production, though, Valero’s
factual challenges fail with respect to each subset of claims.

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See generally id.

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See Nishii Declaration.

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See generally Reply.

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See Nishii Declaration.
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1.

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Defendants estimate that the amount in controversy on Valero’s first and

Unpaid Wages

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second claims for relief is $500,083.25. Valero contends that the assumptions

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underlying Defendants’ calculations are unreasonable.
Valero’s first and second claims for relief are for failure to pay overtime

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and minimum wages, respectively. Under California law, “[a]ny work in excess

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of eight hours in one workweek and any work in excess of forty hours in one

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workweek . . . shall be compensated at the rate of no less than one and one-half

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times the regular rate of pay for an employee.” Cal. Lab. Code § 510.

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Additionally, “[a]ny work in excess of 12 hours in one day shall be compensated

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at the rate of no less than twice the regular rate of pay for an employee.” Id.

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Pursuant to California law, all employees are also entitled to receive at least

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minimum wage for all hours worked. See Cal. Lab. Code §§ 1197 & 1999.
Defendants employed at least 583 non-exempt employees during the time

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periods relevant to those claims, and those employees worked a total of

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66,700 workweeks over the class period. 17 The average salary for those

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employees was $29.99 per hour. 18 Accordingly, if each class member worked

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15 minutes of unpaid time per week, then the amount in controversy for those

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claims is at least $500,082.25.

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Valero contends that it is unreasonable to assume that each class member

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worked 15 minutes of unpaid time per week because he has alleged that “some”

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class members experienced violations “at times.” To the extent that Valero

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seeks to skirt the amount in controversy by arguing that Defendants committed

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infrequent or ad hoc violations, the Court is unpersuaded—if Valero does not

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believe that the alleged violations were widespread or regular, then this action is

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See id. at ¶ 8.

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See id.
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not appropriate for class-wide relief, and Valero should not have asserted his

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claims on behalf of a putative class.
The Court also disagrees that Defendants’ assumptions overstate the

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amount in controversy on the unpaid wage claims. Under California law,

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Defendants are required to pay one-and-a-half times an employee’s hourly salary

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for any work in excess of eight hours per day, and Defendants must pay two

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times an employee’s hourly salary for any work in excess of 12 hours per day.

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Defendants’ calculations do not take those penalties into account; they assume

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instead that each class member is entitled to 15 minutes’ worth of that

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individual’s base salary per week. Accordingly, a class member who worked

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10 minutes per week in overtime would be entitled to at least 15 minutes’ worth

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of his or her salary. That reasoning undermines Valero’s argument that the 15-

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minute assumption inflates the amount in controversy with respect to the first

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and second claims for relief.

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2.

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Defendants estimate that the amount in controversy with respect to

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Meal Period and Rest Break Claims

Valero’s third and fourth claims for relief is at least $8,001,332.

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Through his third and fourth claims for relief, Valero seeks class-wide

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recovery for meal and rest period violations, respectively. Pursuant to California

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law and applicable wage orders, employers must provide 30-minute lunch

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periods for every five hours worked, as well as 10-minute rest periods for every

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four hours worked. 19 See Cal. Lab. Code § 512. If an employer fails to provide a

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full and timely rest or break period, then the employee is entitled to one

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additional hour of pay. See Cal. Lab. Code § 226.7. An employee may recover

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up to one hour of pay for every day that the employee experiences a rest period

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Complaint ¶ 52.
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violation, as well as one hour of pay for every day that the employee experiences

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a meal period violation. See id.

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Over the relevant class period, Defendants employed 583 non-exempt

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employees, and those employees worked 66,700 workweeks at an average salary

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of $29.99 per hour.20 Therefore, by assuming that each employee experienced

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two rest break violations and two meal period violations per week, Defendants

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have calculated the amount in controversy for those claims to be at least

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$8,001,332.

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Valero contends that Defendants have grossly inflated the amount in

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controversy by attributing a “an extreme 100 percent violation rate” for the

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meal period and rest break claims. 21 That is not true: a 100% violation rate

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would mean that each employee experienced a meal period and rest break

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violation for each day that the employee worked, which would result in an

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amount in controversy of well over $20 million. Contrary to Valero’s

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contentions, Defendants have assumed only a 40% violation rate, and Valero has

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not provided any reason why that rate is unreasonable.

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Moreover, even if it is unreasonable to assume that each class member

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experienced two meal period and two rest break violations per week, such an

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assumption would not be fatal to the amount-in-controversy determination.

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Indeed, the Court could ignore entirely the meal period claims and assume only

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that each employee was denied, on average, two timely and full rest periods per

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week. That supposition would still result in potential penalties of $4,000,666.

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Taking into account the other claims for which the putative class may recover,

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the jurisdictional threshold would remain satisfied.

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See Nishii Declaration ¶ 8.

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See Motion 14:5 (emphasis in original).
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3.

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Defendants estimate that the amount in controversy with respect to

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Waiting Time Penalties

Valero’s claim for waiting time penalties is $1,623,045.
Pursuant to California law, a discharged employee is generally entitled to

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receive all wages owed to him or her immediately upon termination or within

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72 hours of resignation. See Cal. Lab. Code §§ 201(a) & 201(b). If the employer

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does not pay wages due immediately, then the employee is entitled to recover

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waiting time penalties “from the due date thereof at the same rate until paid or

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until an action therefor is commenced,” for up to 30 days. Cal. Lab. Code

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§ 203(a).
Waiting time clams are derivative of other claims. Accordingly, if any

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putative class member was not paid for all hours worked at any time during his

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or her employment, or if the employee experienced a rest break or meal period

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violation, and if Defendants failed to remedy those violations immediately upon

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the termination or resignation of the employee, then the class member is entitled

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to receive up to 30 days’ worth of pay. 22 See Wilcox v. Harbor UCLA Med. Ctr.

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Guild, Inc., 2023 WL 5246264, at *4 (C.D. Cal. Aug. 14, 2023).

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During the relevant class period, Defendants employed 243 full-time,

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non-exempt employees whose employment ended, and those employees worked

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an average of eight hours per day at an average salary of $27.83 per hour. 23

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Therefore, by assuming that each of those employees suffered a waiting period

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violation, Defendants have estimated that the amount in controversy with

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respect to those claims is $1,623,045.

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Valero asserts that Defendants’ assumptions with respect to the waiting

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period claim are “manifestly unreasonable” in view of Valero’s allegations that

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See Complaint ¶¶ 68–73.

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See Nishii Declaration ¶ 9.
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Defendants failed to pay “some” class members “at times.” 24 As explained

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above, that argument is both unpersuasive and troubling. To be entitled to

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recover waiting time penalties, each putative class member need suffer only one

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of the other injuries alleged in the complaint. And for a putative class member

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to recover 30 days’ worth of his or her salary, the injury need only have lasted

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for more than 30 days—which is necessarily true if, as Valero alleges, the Labor

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Code violations remain ongoing.25 In other words, the 100% violation rate is not

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only reasonable—it is a necessary condition of Valero’s decision to file this

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putative class action case.

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Accordingly, the Court finds that Defendants’ estimates regarding the

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amount in controversy with respect to the waiting period claim are reasonable.

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4.

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Defendants estimate that the amount in controversy with respect to the

Wage Statement Violations

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wage statement claims is $960,150. To arrive at that number, Defendants

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assumed that every wage statement issued to the 407 putative members of this

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class over the class period contained some violation. Valero, however, contends

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that it is inappropriate to assign a 100% violation rate for this claim.
In his Complaint, Valero alleges that Defendants “adopt[ed] policies and

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practices that resulted in their failure, at times, to furnish Plaintiff and Class

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Members with accurate itemized statements that accurately reflect, among other

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things, gross wages earned; total hours worked; net wages earned; all applicable

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hourly rates in effect during the pay period and the corresponding number of

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hours worked at each hourly rate; among other things.” 26 Like the waiting

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See generally Complaint.

See id. at ¶¶ 15–24 (alleging that the violations “continu[e] to the
present”).
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Id. at ¶ 77.
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period claim, this claim appears to be derivative of the other class claims. Thus,

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the Court finds it reasonable to assume that there was a 100% violation rate.

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However, even if the Court attributed a $0 value to this claim, the amount in

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controversy would exceed the jurisdictional threshold.

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5.

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Valero argues that it is improper to assume that plaintiffs will recover 25%

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in attorneys’ fees and that attorneys’ fees should not be included in the amount

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in controversy. 27 The Ninth Circuit has held that when, as here, the

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“underlying statute authorizes an award of attorneys’ fees, either with

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mandatory or discretionary language, such fees may be included in the amount

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in controversy.” Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir.

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1998). Courts have generally found that it is reasonable to use a 25% benchmark

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when calculating the amount in controversy for the purpose of diversity

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jurisdiction. See, e.g., Lopez v. Aerotek, Inc., 2015 WL 2342558, at *3 (C.D. Cal.

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May 14, 2015); see also Greene v. Harley-Davidson, Inc., 956 F.3d 767, 774 n.4

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(9th Cir. 2020) (finding that it was “reasonable to assume that” attorneys’ fees

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“equal to 25 percent of the amount in controversy”).

Attorneys’ Fees

Moreover, even if the Court did not consider attorneys’ fees at all, the

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amount in controversy exceeds the jurisdictional threshold.

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B.

Equitable Jurisdiction
Valero argues that the Court should remand the entire action because the

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Court lacks jurisdiction to award equitable remedies for his UCL claim. 28

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The Ninth Circuit has held that “there is original jurisdiction, and

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therefore removal jurisdiction under 28 U.S.C. § 1441(a), over a case as long as

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there is subject matter jurisdiction over one or more of the claims alleged.” Lee

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Motion 17:9–18:28.

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See id. 19:8–20:16.
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v. Am. Nat. Ins. Co., 260 F.3d 997, 1002 (9th Cir. 2001). And “a district court

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may not . . . remand a case in its entirety where there is subject matter

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jurisdiction over some portion of it.” Id.

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It is undisputed that the Court has subject matter jurisdiction over

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Valero’s labor claims, and it is undisputed that the Court lacks equitable

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jurisdiction over Valero’s UCL claim. 29 See Sonner v. Premier Nutrition Corp.,

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971 F.3d 834, 845 (9th Cir. 2020) (holding that a federal court may not award

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equitable relief under the UCL “when a plain, adequate, and complete remedy

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exists at law”). Accordingly, the Court declines to remand the entire action

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based upon its lack of equitable jurisdiction over the UCL claim. Instead,

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Valero’s UCL claim is DISMISSED without prejudice. Valero may attempt to

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amend his UCL claim to fall within the Court’s jurisdiction, or he may pursue

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that claim in state court. See Guzman v. Polaris Industries, Inc., 49 F.4th 1308,

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1315 (9th Cir. 2022) (holding that a district court must dismiss a UCL claim over

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which the court lacks equitable jurisdiction).

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IV. DISPOSITION

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For the foregoing reasons, the Court hereby ORDERS as follows:

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1.

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Valero’s instant Motion to remand [ECF No. 15] is DENIED, and

the hearing on that Motion is VACATED.

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2.

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2025, at 9:00 a.m.

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3.

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The Scheduling Conference remains on calendar for January 10,
Valero’s claim for relief under the UCL is DISMISSED without

prejudice.
4.

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Valero is DIRECTED to file an amended pleading, if at all, no later

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than January 17, 2025. If Valero chooses to file an amended pleading, then he is

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also DIRECTED to file contemporaneously therewith a Notice of Revisions to

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See generally id.; Opposition.
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