Estrada v. KAG West, LLC

Filing 17

ORDER DENYING PLAINTIFF'S MOTION TO REMAND (Doc. 10 ) signed by District Judge Kirk E. Sherriff on 6/06/2024. (Gonzales, V)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ESTRADA, an individual, 12 Plaintiff, 13 14 15 No. 1:24-cv-00257-KES-CDB ORDER DENYING PLAINTIFF’S MOTION TO REMAND v. KAG WEST, LLC, an Ohio limited liability company; and DOES 1-100, 16 (Doc. 10) Defendants. 17 18 This matter is before the court on plaintiff Jose Estrada’s motion to remand this action to 19 20 the Superior Court of the State of California for the County of Kern and request for related 21 attorneys’ fees, Doc. 10 (“Mot. to Remand”), following Defendant KAG West, LLC’s second 22 notice of removal to federal court. Doc. 1 (“Notice of Removal”). This matter is suitable for 23 resolution without a hearing pursuant to Local Rule 230(g). Doc. 14. The court has considered 24 the parties’ briefs and, for the reasons explained below, will deny Estrada’s motion to remand. 25 Accordingly, the court will also deny Estrada’s request for associated attorneys’ fees. 26 I. 27 28 Background Plaintiff Jose Estrada filed this action against his employer, KAG West, LLC (“KAG West”), J.D. Doe, and other fictitious defendants in Kern County Superior Court on March 16, 1 1 2023, alleging disability discrimination, failure to accommodate, and failure to engage in the 2 interactive process under several subsections of Cal. Gov’t Code § 12940; wrongful termination; 3 intentional infliction of emotional distress; and failure to deliver personnel files in violation of 4 Labor Code § 1198.5. Notice of Removal, Ex. A (“Compl.”). Of the several claims, only the 5 intentional infliction of emotional distress claim was brought against defendant J.D. Doe. 6 Compl. ¶¶ 45-50. 7 Estrada was employed by defendant KAG West as a semitruck driver from around 8 October 27, 2018, until December 1, 2022. Compl. ¶ 7. The complaint alleges that as he was 9 driving the semitruck, Estrada was struck by another vehicle and suffered numerous injuries to his 10 back, wrists, and shoulders which impacted his ability to work. Compl. ¶ 8. Estrada further 11 alleges that following his injuries, KAG West failed to provide him with reasonable 12 accommodations to continue to do his job and ultimately terminated him because of these 13 disabilities. Compl. ¶¶ 11-12. The complaint states that, due to the alleged employment 14 discrimination, Estrada “suffered emotional distress, physical and mental injuries and general 15 damages,” “lost employment earnings and benefits, past and future,” and “has incurred, and will 16 continue to incur, attorney’s fees and costs.” Compl. ¶¶ 19, 20, 26, 27, 33, 34. Estrada’s prayer 17 for relief also includes requests for compensatory and punitive damages. Compl. 9–10. The 18 complaint does not specify a dollar amount regarding Estrada’s alleged damages or attorneys’ 19 fees. See generally Compl. 20 KAG West filed its first notice of removal on April 21, 2023, based on diversity 21 jurisdiction, alleging that, although Estrada and J.D. Doe were both citizens of California, J.D. 22 Doe was a sham defendant named only for the purposes of defeating diversity jurisdiction and his 23 citizenship should therefore be disregarded. See Def. KAG West, LLC’s Notice of Removal ¶ 5, 24 Estrada v. KAG W., LLC, No. 1:23-cv-00626, 2023 WL 4174135 (E.D. Cal. June 26, 2023). 25 Estrada filed a motion to remand on May 3, 2023, in response, asserting that J.D. Doe was not a 26 fraudulently joined defendant and that the amount in controversy was not met. Motion to 27 Remand 2-3, Estrada, No. 1:23-cv-00626, 2023 WL 4174135. This court granted the motion to 28 remand, stating that although the complaint “likely fail[ed] to state a plausible claim for IIED” 2 1 against J.D. Doe, the defect could potentially be remedied through an amendment to the 2 complaint and thus J.D. Doe was not a fraudulently joined defendant. Estrada, 2023 WL 3 4174135, at *3. Because the court found that there was not complete diversity between the 4 parties and remanded the case on that basis, it did not reach the question of whether the amount in 5 controversy was met. Id. at *4. 6 On February 21, 2024, Estrada voluntarily dismissed J.D. Doe from the case. See Notice 7 of Removal ¶ 11, Ex. JJ. On February 29, 2024, KAG West filed the present notice of removal, 8 again based on diversity jurisdiction, given the dismissal of the non-diverse, former defendant 9 J.D. Doe. See generally Notice of Removal. 10 On March 26, 2024, Estrada filed the present motion to remand, asserting that the present 11 notice of removal was not timely and that this court cannot exercise diversity jurisdiction over 12 this matter because there is not diversity of citizenship and the amount in controversy is not met. 13 See generally Mot. to Remand. Specifically, Estrada contends that KAG West first ascertained 14 that the matter was removable in April 2023, when it filed its first notice of removal, and 15 therefore this notice of removal is untimely. Mot. to Remand 7-8. In addition, Estrada asserts 16 that there is no diversity of citizenship due to the California citizenship of dismissed defendant 17 J.D. Doe and due to Estrada’s intention to amend the complaint to name other California citizens 18 as defendants. Mot. to Remand 3-4. Finally, Estrada argues that the amount in controversy is not 19 met because Estrada’s settlement offer of $250,000 was inflated and not indicative of his valuing 20 of his case, Estrada’s lost wages are limited to between two and four weeks of missed work, or a 21 maximum of $5,392, and there is no guarantee that Estrada will be awarded compensatory or 22 punitive damages or attorneys’ fees. Mot. to Remand 4-7. 23 On April 9, 2024, KAG West filed an opposition to the motion to remand, to which 24 Estrada replied on April 18, 2024. Docs. 11, 12. 25 II. Legal Standard 26 A. 27 A suit filed in state court may be removed to federal court if the federal court would have 28 Removal Jurisdiction had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case 3 1 originally filed in state court presents a federal question or where there is diversity of citizenship 2 among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 3 1332(a). “If at any time before final judgment it appears that the district court lacks subject matter 4 5 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Section 1447(c) “is strictly 6 construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to 7 the party invoking the statute.” Acad. Of Country Music v. Cont’l Cas. Co., 991 F.3d 1059, 1061 8 (9th Cir. 2021) (quoting Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004); 9 see also Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 10 2009) (“The defendant bears the burden of establishing that removal is proper.”). As such, a 11 federal court must reject jurisdiction and remand the case to state court if there is any doubt as to 12 the right of removal. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 13 2003). 14 28 U.S.C. § 1446(b) governs the time during which a defendant may properly remove a 15 case from state court to federal court. A notice of removal must be filed within thirty days of the 16 defendant receiving “a copy of the initial pleading setting forth the claim for relief upon which 17 such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). However, if the pleading does not 18 indicate the case is removable, the thirty-day deadline for removal begins to run when the 19 defendant receives “a copy of an amended pleading, motion, order or other paper from which it 20 may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. 21 § 1446(b)(3). “An order remanding [a] case may require payment of just costs and any actual expenses, 22 23 including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447. “[A]bsent 24 unusual circumstances, attorney’s fees should not be awarded when the removing party has an 25 objectively reasonable basis for removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 136 26 (2005). 27 B. Diversity Jurisdiction 28 A court may exercise diversity jurisdiction over a matter when there is diversity of 4 1 citizenship among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. 2 § 1332(a). 3 a. Diversity of Citizenship 4 An action may be removed to federal court on the basis of diversity jurisdiction only where 5 there is complete diversity of citizenship between the parties. Hunter v. Phillip Morris USA, 582 6 F.3d 1039, 1043 (9th Cir. 2009) (citing 28 U.S.C. §§ 1332(a), 1441(b)). For diversity purposes, a 7 person is a citizen of a state if he or she is: (1) a citizen of the United States and (2) domiciled in 8 that state. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). An LLC is a 9 citizen of the state of which its owners or members are citizens. Johnson v. Columbia Props. 10 Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). A corporation is a citizen of the state in which 11 it is incorporated and the state in which its principal place of business is located. See, e.g., id. 12 (citing 28 U.S.C. § 1332(c)(1)). “In determining whether a civil action is removable on the basis 13 of [diversity jurisdiction], the citizenship of defendants sued under fictitious names shall be 14 disregarded.” 28 U.S.C. § 1441(b)(1). 15 16 b. Amount in Controversy A notice of removal must include “a plausible allegation that the amount in controversy 17 exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 18 89 (2014). The amount in controversy is calculated based upon “the complaint operative at the 19 time of removal and encompasses all relief a court may grant on that complaint if the plaintiff is 20 victorious.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 414-15 (9th Cir. 2018). “The 21 amount in controversy is simply an estimate of the total amount in dispute, not a prospective 22 assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th 23 Cir. 2010) (citation omitted). 24 When the “plaintiff’s state court complaint does not specify a particular amount of 25 damages, the removing [party] bears the burden of establishing, by a preponderance of the 26 evidence, that the amount in controversy exceeds” the threshold amount of $75,000. Canela v. 27 Costco Wholesale Corp., 971 F.3d 845, 849 (9th Cir. 2020) (citation omitted). Courts begin their 28 inquiry by looking at the complaint, but “the amount-in-controversy inquiry in the removal 5 1 context is not confined to the face of the complaint.” Valdez v. Allstate Ins. Co., 372 F.3d 1115, 2 1117 (9th Cir. 2004) (citations omitted). The court may also consider allegations in the removal 3 petition, “summary-judgment-type evidence relevant to the amount in controversy,” and evidence 4 filed in opposition to the motion to remand. Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th 5 Cir. 2005) (citation omitted); see also Lenau v. Bank of Am., N.A., 131 F. Supp. 3d 1003, 1005 6 (E.D. Cal. 2015) (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (per 7 curiam)). “[A] settlement letter is relevant evidence of the amount in controversy if it appears to 8 reflect a reasonable estimate of the plaintiff’s claim.” Acad. of Country Music, 991 F.3d at 1069 9 (internal quotation marks omitted) (quoting Cohn, 281 F.3d at 840 (9th Cir. 2002)). 10 III. Discussion and Analysis 11 A. Timeliness 12 KAG West’s notice of removal is timely. It was first ascertainable to KAG West that this 13 case may be one in which removal is appropriate when KAG West received notice that Estrada 14 voluntarily dismissed the only non-diverse defendant, J.D. Doe, on February 21, 2024. KAG 15 West filed this notice of removal eight days later, on February 29, 2024, well within the thirty 16 days required by 28 U.S.C. § 1446(b)(3). 17 Estrada asserts that the notice of removal is untimely because KAG West previously filed 18 a notice of removal on the basis of diversity jurisdiction on April 23, 2023, and therefore, KAG 19 West must have first “ascertained this matter was ‘removable’” then, more than thirty days prior 20 to filing the present notice of removal. Mot. to Remand 7. This argument fails. Though a 21 defendant generally may not remove a case a second time following a remand, “[s]uccessive 22 [removal] petitions are . . . permitted when the pleadings are amended to create federal subject- 23 matter jurisdiction for the first time.” Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th 24 Cir. 2015). Where, as here, “the case was not removable on the basis of the initial pleading,” it 25 “became removable,” and the thirty-day timeline under 28 U.S.C. § 1446(b)(3) was triggered, 26 “when it became apparent that [the plaintiff] had abandoned his claims against [the non-diverse 27 defendant].” Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 696 (9th Cir. 2005). In other 28 words, “[w]here the voluntary dismissal or abandonment of a resident defendant creates complete 6 1 diversity between the parties to state proceedings, the nonresident defendant may remove the case 2 to federal court within thirty days of the dismissal or abandonment.” Schmidt v. Capitol Life Ins. 3 Co., 626 F. Supp. 1315, 1318 (N.D. Cal. Jan. 31, 1986) (citing 14a Wright, Miller & Cooper, 4 Federal Practice & Procedure, § 3732). Here, though KAG West previously filed a notice of 5 removal on the basis of diversity jurisdiction, this court found that there was not diversity of 6 citizenship at that time because then-defendant J.D. Doe was a citizen of California like Estrada. 7 Diversity of citizenship was created only upon plaintiff Estrada’s voluntary dismissal of J.D. Doe 8 on February 21, 2024. Therefore, under § 1446(b)(3), KAG West was permitted to file a new 9 notice of removal on the basis of diversity jurisdiction within thirty days of receiving notice of the 10 dismissal of J.D. Doe. Thus, KAG West’s notice of removal is timely. 11 B. 12 Following Estrada’s voluntary dismissal of J.D. Doe, the only named, non-fictitious parties 13 in this action are now Estrada and KAG West, LLC. It is undisputed that Estrada is a California 14 citizen, given his California residence, and KAG West, LLC, is a citizen of Delaware and Ohio, 15 given that KAG West’s sole member is KAG Leasing, Inc., a Delaware corporation with its 16 principal place of business in Ohio. 17 Diversity of Citizenship Former defendant J.D. Doe was also a California citizen, which previously defeated 18 diversity. Though Estrada voluntarily dismissed J.D. Doe from this suit, Estrada argues that the 19 court should still consider J.D. Doe’s citizenship when determining whether diversity exists 20 between the parties because Estrada "had to dismiss [J.D. Doe] because [KAG West, LLC] was 21 threatening to in[i]tiate arbitration again through [J.D. Doe] as a tactic to remove the case to 22 federal court again." Mot. to Remand 4. However, Plaintiff cites no authority, and this court is 23 aware of none, that would support taking into consideration the citizenship of a voluntarily 24 dismissed defendant when assessing diversity jurisdiction. To the contrary, courts routinely hold 25 that complete diversity exists after a plaintiff has voluntarily dismissed all non-diverse 26 defendants. Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 696 (9th Cir. 2005) (case became 27 removable once plaintiff abandoned his claims against non-diverse defendant); see also 28 Caterpillar Inc. v. Lewis, 519 U.S. 61, 64 (1996) (explaining that, for purposes of contesting 7 1 removal, "[c]omplete diversity . . . existed" after dismissal of non-diverse party); Bahdasarian v. 2 Macy’s, Inc., Case No. 2:21-CV-04153-AB (MAAx), 2021 WL 4026760, at *5 n.3 (C.D. Cal. 3 Sept. 2, 2021) (“that a non-diverse defendant . . . was present prior to removal in the state court 4 proceeding is not relevant to the diversity analysis since Plaintiff voluntarily dismissed [her] 5 [prior to filing the notice of removal]” and “[her] citizenship is not at issue”). 6 Estrada further argues that there is not diversity of citizenship because fictitious 7 defendants Does 1-100 are California residents he plans to name as defendants in this action. 8 Estrada even names a specific manager, Sarah Repella, as one such California citizen “Doe” that 9 he plans to substitute as a defendant. Mot. to Remand 4. However, when determining if an 10 action is removable based on diversity jurisdiction, “the citizenship of defendants sued under 11 fictitious names shall be disregarded,” 28 U.S. Code § 1441(b)(1), and “becomes relevant only if 12 and when the plaintiff seeks leave to substitute a named defendant.” Soliman v. Philip Morris 13 Inc., 311 F.3d 966, 971 (9th Cir. 2002) (citations omitted). Though Estrada indicated in his 14 motion that he plans to seek leave to amend the complaint to add non-diverse California residents, 15 he has not yet done so and thus the citizenship of any fictitious defendant, or Repella, is irrelevant 16 to the jurisdictional analysis.1 See, e.g., Rosas v. NFI Indus., No. 2:21-cv-00046 WBS CKD, 17 2021 WL 672989, at *4 (E.D. Cal. Feb. 22, 2021) (plaintiff’s stated intent to amend her complaint 18 to substitute two Doe defendants, whom plaintiff had addressed by name within complaint, did 19 not defeat diversity because “neither individual [was] named as a party defendant” and plaintiff 20 had not sought leave to amend to name them as defendants). 21 Because Estrada has not sought leave to amend his complaint to substitute a named 22 defendant, and the only named defendant, KAG West, LLC, is diverse from Estrada, complete 23 diversity exists in this action. 24 C. 25 Estrada argues that the amount in controversy does not meet the $75,000 jurisdictional 26 27 28 1 Amount in Controversy If Estrada subsequently seeks leave to amend the complaint to substitute non-diverse defendants for the Doe defendants, 28 U.S.C. § 1447(e) provides that the court “may deny joinder, or permit joinder and remand the action to the State court.” Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) (quoting § 1447(e)). 8 1 requirement. However, Estrada’s initial settlement offer of $250,000, as well as the nature and 2 number of his claims and his related requests for damages and attorneys’ fees, demonstrate 3 otherwise. 4 In his complaint, Estrada alleges lost wages and emotional distress and seeks 5 compensatory damages, punitive damages, and attorneys’ fees. After the case was initially 6 remanded to state court, Estrada made a settlement offer to KAG West of $250,000 to settle all 7 his claims in this case. See Notice of Removal, Ex. HH. A settlement offer is relevant evidence 8 of the amount in controversy “if it appears to reflect a reasonable estimate of the plaintiff’s 9 claim.” See, e.g., Cohn, 281 F.3d at 840. In analyzing whether the dollar amount of a settlement 10 offer reflects a reasonable estimate of the claims, courts frequently review the record to determine 11 if the offer is “nothing more than posturing.” Schmidt v. State Farm Ins. Co., Case No. 1:23-cv- 12 00052-JLT-EPG, 2023 WL 6370868, at *3 (E.D. Cal. Sept. 30, 2023). A settlement letter may 13 hold less persuasive value if a plaintiff attempts to “disavow [the] letter.” Cohn, 281 F.3d at 840; 14 see also Vitale v. Celadon Trucking Services, Inc., No. CV16-8535 PSG (GJSx), 2017 WL 15 626356, at *3 (C.D. Cal. Feb. 15, 2017) (collecting cases) (“[W]here a plaintiff takes steps to 16 disavow a damages estimate, the estimate, standing alone, is insufficient to show that the requisite 17 amount has been met.”). Here, though Estrada now asserts that the $250,000 settlement offer that 18 he made following the filing of his first motion to remand was “an inflated initial offer” and “not 19 an accurate assessment of [his] damages,” see Doc. 12-1, the settlement letter itself stated that 20 Estrada’s settlement demands will necessarily continue to increase due to the types of claims 21 asserted, rather than decrease, as the case continues. In addition, when KAG West raised with 22 Estrada the potential for discussion of a settlement amount in the “mid 5 figure” range, Estrada 23 did not respond to the correspondence, which further indicates that Estrada values his claim 24 significantly above that amount. Notice of Removal, Ex. LL. Based on this, and an evaluation of 25 the claims that Estrada brings as set forth below, the court finds that the settlement letter was not 26 mere posturing. 27 28 When the complaint does not assert the amount of emotional distress damages or punitive damages, “[t]o establish probable emotional distress and punitive damages, a defendant may 9 1 introduce evidence of jury verdicts from cases with analogous facts.” Owuor v. Wal-Mart 2 Assocs., Inc., No. 2:21-cv-02232-KJM-JDP, 2022 WL 1658738, at *3 (E.D. Cal. May 25, 2022) 3 (citing Kroske, 432 F.3d at 980). However, “to serve as benchmarks,” such cases need not be 4 “perfectly analogous” but rather need only be “sufficiently similar.” See id. 5 KAG West cites several cases in which employment claims under the Fair Employment 6 Housing Act (“FEHA”) similar to Estrada’s—i.e., discrimination, failure to accommodate, failure 7 to engage in the interactive process, and wrongful termination—resulted in the award of 8 emotional distress damages and/or punitive damages in amounts that significantly exceeded 9 $75,000. See, e.g., Azzolin v. San Bernardino Cnty. Sherriff’s Dept., No. CIVDS1206805, 2014 10 WL 4705874, at *2 (Cal. Super. Ct. Aug. 4, 2014) (emotional distress award of $250,000 where 11 plaintiff was fired after developing seizures and brought claims for disability discrimination, 12 failure to engage in the interactive process, and failure to accommodate). Though a few of the 13 employment discrimination cases that KAG West cites are distinguishable in that they are based 14 on age or pregnancy discrimination, rather than disability discrimination, they show that 15 “emotional distress damages in a successful employment discrimination case may be substantial” 16 and demonstrate “the potential for large punitive damage awards in employment discrimination 17 cases.” Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1033-34 (N.D. Cal. July 2, 2002) (finding 18 defendant met its burden of showing jurisdictional amount was met by preponderance of evidence 19 though defendant’s “cited cases involve distinguishable facts” because cases cited showed that 20 emotional and punitive damage awards in employment cases can be quite significant). 21 Thus, KAG West’s cited cases show that it is more likely than not that the amount in 22 controversy requirement is met by the potential emotional and punitive damages at issue alone. 23 See Ochoa., 2023 WL 2861906, at *2-3 (citation to cases “involving single-plaintiff disability 24 discrimination, failure to engage in the interactive process and retaliation cases with 25 compensatory and punitive damages ranging from $295,000 to $1,284,000” was adequate to show 26 by preponderance of evidence that compensatory and punitive damages in case with similar 27 claims would likely exceed jurisdictional minimum). 28 In addition to assessing the potential amount of emotional distress and punitive damages, 10 1 a court must also assess prospective attorneys’ fees when they are authorized by the relevant 2 statute or contract. See Kroske, 432 F.3d at 980 (citation omitted). FEHA provides that “[i]n 3 civil actions brought under this section, the court, in its discretion, may award to the prevailing 4 party . . . reasonable attorney's fees and costs.” Cal. Gov't Code § 12965(c)(6). Thus, here, 5 prospective attorneys’ fees must be assessed when determining the amount in controversy. The 6 estimation of the amount of the attorneys’ fees proffered in the removal notice need not be proven 7 to a legal certainty, but rather need only be reasonable. Greene v. Harley-Davidson, Inc., 965 8 F.3d 767, 774 n.4 (9th Cir. 2020) (quoting Dart Cherokee Basin Operating Co., 574 U.S. at 88). 9 As with emotional distress and punitive damages, “the reasonableness of attorney's fees, when 10 such fees are unascertainable on the face of the complaint, can be calculated by looking to 11 attorney's fees awards in similar cases.” Ochoa, 2023 WL 2861906, at *4 (E.D. Cal. April 10, 12 2023) (citation omitted). The Ochoa court noted that while some courts have used $30,000 as a 13 “conservative estimate” of attorneys’ fees in employment discrimination cases, the attorneys’ fees 14 in cases in which a plaintiff brings multiple claims under FEHA, such as disability discrimination, 15 failure to engage in the good faith interactive process, and failure to accommodate, would likely 16 exceed the jurisdictional amount. Id. 17 This case is similar to Ochoa and other cases involving a single plaintiff bringing various 18 disability discrimination claims under FEHA where courts have found the attorneys’ fees alone 19 would more likely than not exceed the jurisdictional minimum. See, e.g., id. (attorneys’ fees 20 more than likely not exceeded jurisdictional minimum where plaintiff claimed various forms of 21 disability discrimination, harassment, retaliation, and failure to engage in the interactive process); 22 Azzolin, 2014 WL 4705874, at *2 ($506,313 in attorneys’ fees awarded on claims of disability 23 discrimination, failure to engage in interactive process, and failure to accommodate). However, 24 even assuming the more conservative estimate of $30,000 for attorneys’ fees, the amount in 25 controversy would be met by a preponderance of the evidence, given that such an amount would 26 be added to the compensatory and punitive damages amounts at issue. 27 Estrada’s citation to employment discrimination cases in which the jury did not find for 28 the plaintiff, and therefore damages and attorneys’ fees were not awarded, misses the mark. As 11 1 KAG West correctly points out, the inquiry is not a prospective assessment of the defendant’s 2 liability or the likelihood of the plaintiff’s success; rather, the inquiry focuses on how much the 3 plaintiff has put into controversy through its claims. Estrada has put compensatory damages, 4 punitive damages, and attorneys’ fees at issue, and therefore, it is correct to assess the potential 5 awards for such damages if his claims are successful. 6 Finally, the parties dispute the amount of lost wages in controversy. Estrada asserts that 7 he was out of work only for between two and four weeks and his lost wages are therefore limited 8 to a maximum of $5,392. In its notice of removal, KAG West asserts that it is reasonable, and 9 even conservative, to estimate Estrada’s lost wages as one year of past losses and one year of 10 future losses using Estrada’s annual salary of $70,096, given that the complaint alleges both past 11 and future losses of employment earnings. See, e.g., Tipton v. Airport Terminal Servs., Inc., 2019 12 WL 185687, at *8 n.5 (C.D. Cal. Jan. 14, 2019) (explaining that past wages constitute lost wages 13 from the date of termination of employment until the date of the notice of removal and future 14 wages constitute lost wages from the date of removal until the case’s resolution); Chavez v. 15 JPMorgan Chase & Co., 888 F.3d 413, 417 (9th Cir. 2018) (“If a plaintiff claims at the time of 16 removal that her termination caused her to lose future wages . . . there is no question that future 17 wages are ‘at stake’ in the litigation”). At the very least, KAG West argues that the amount of 18 lost wages should be calculated as Estrada’s asserted past losses of $5,392 plus one year of future 19 losses. However, even assuming without deciding that $5,392 is the extent of Estrada’s lost 20 wages, KAG West has shown that, including Estrada’s claims for emotional distress damages, 21 punitive damages, and attorneys’ fees, the amount in controversy more likely than not exceeds 22 $75,000. Estrada’s $250,000 settlement offer confirms this. 23 Therefore, given Estrada’s $250,000 settlement offer as well as the nature and number of 24 his claims and related prayers for damages and attorneys’ fees, KAG West has shown by a 25 preponderance of the evidence that the amount in controversy in this action exceeds the $75,000 26 jurisdictional threshold. Attorney’s Fees Associated with the Notice of Removal 27 D. 28 Given that the motion to remand is denied, plaintiff’s request for attorneys’ fees relating to 12 1 the notice of removal is also denied as moot. 2 IV. 3 Conclusion and Order Based upon the foregoing, Plaintiff’s motion to remand, Doc. 10, is DENIED. 4 5 6 7 IT IS SO ORDERED. Dated: June 6, 2024 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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