Degenhardt v. Ford Motor Company et al

Filing 12

ORDER Granting #5 Plaintiff's Motion to Remand. The Court REMANDS this case to the Superior Court of California, County of San Diego. As the Court lacks subject matter jurisdiction, the Court DECLINES to rule on Ford's pending motion to dismiss. Doc. No. #4 . Signed by Judge Michael M. Anello on 1/10/2022. (Certified copy sent to State Court via US Mail Service.) (tcf)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

BARRY DEGENHARDT,

Case No. 21-cv-1921-MMA (BLM)
Plaintiff,

12
13

v.

ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

14

FORD MOTOR COMPANY, et al.,

[Doc. No. 5]

15

Defendants.

16
17

On October 12, 2021, Plaintiff Barry Degenhardt (“Plaintiff”) initiated a civil

18

action against Defendant Ford Motor Company (“Ford”) in the Superior Court of

19

California, County of San Diego (the “State Court Action”). Doc. No. 1-3 (“State Ct.

20

Compl.”). On November 12, 2021, Ford filed a notice of removal to this Court. Doc.

21

No. 1 (“Notice of Removal” or “NOR”). Plaintiff now moves to remand this case back to

22

state court. Doc. No. 5. Ford filed an opposition, to which Plaintiff replied. Doc. Nos. 7,

23

9. The Court found the matter suitable for determination on the papers and without oral

24

argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 11. For the reasons set forth

25

below, the Court GRANTS Plaintiff’s motion to remand.

26
27
28
-1-

21-cv-1921-MMA (BLM)

1

I. BACKGROUND

2

On January 13, 2019, Plaintiff purchased a 2018 Ford Escape (the “Vehicle”) from

3

a Ford authorized retailer in California. 1 State Ct. Compl ¶ 4. According to Plaintiff, the

4

Vehicle contained, and thereafter developed, numerous defects, causing Plaintiff to bring

5

the Vehicle in for repairs. State Ct. Compl. ¶¶ 7–8. However, according to Plaintiff,

6

Ford was unable to repair the Vehicle “within a reasonable number of opportunities.”

7

State Ct. Compl. ¶ 8. As a result, Plaintiff initiated the State Court Action against Ford,

8

alleging violations of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790

9

et seq. (“Song-Beverly Act”), as well as state law claims for breach of the implied

10

warranty of merchantability, fraudulent inducement, and negligent misrepresentation.

11

State Ct. Compl. at 5–15. Plaintiff prays for the following relief:

12

1. For Plaintiff’s actual economic damages (including the right of restitution,
incidental damages, and consequential damages, as outlined in Cal. Civ. Code
§§ 1793.2(d)(2) & 1794(b)) in an amount according to proof;

13
14
15

2. For Plaintiff’s noneconomic damages in an amount according to proof;

16

3. For civil penalty damages of no more than two times Plaintiff’s actual
damages, as per Cal. Civ. Code §1794(c) or (e);

17
18

4. For punitive damages;

19
20

5. For costs and expenses, including Plaintiffs attorney’s fees, pursuant to Cal.
Civ. Code §1794(d) and Cal. Code Civ. Proc. §§ 1032 & 1033.5;

21
22

6. For prejudgment interest at the legal rate; and

23

7. For such other relief as the Court may deem proper.

24
25

State Ct. Compl. at 15.

26
27
28

1

As will be explained infra, the Court accepts the document offered as Exhibit C in support of Ford’s
Notice of Removal—for the sole purpose of analyzing the Court’s subject matter jurisdiction—as a true
and correct copy of the purchase agreement that is the subject of this action. See Doc. No. 1-5.
-2-

21-cv-1921-MMA (BLM)

1
2

II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.

3

Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by

4

Constitution and statute.” Id. “A federal court is presumed to lack jurisdiction in a

5

particular case unless the contrary affirmatively appears.” Stock W., Inc. v. Confederated

6

Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citing California ex rel. Younger v. Andrus,

7

608 F.2d 1247, 1249 (9th Cir. 1979)). The party seeking federal jurisdiction bears the

8

burden to establish jurisdiction. Kokkonen, 511 U.S. at 377 (citing McNutt v. Gen.

9

Motors Acceptance Corp., 298 U.S 178, 182–83 (1936)). Generally, subject matter

10

jurisdiction is based on the presence of a federal question, see 28 U.S.C. § 1331, or on

11

complete diversity between the parties, see 28 U.S.C. § 1332.

12

28 U.S.C. § 1441(a) provides for removal of a civil action from state to federal

13

court if the case could have originated in federal court. The removal statute is construed

14

strictly against removal, and “[f]ederal jurisdiction must be rejected if there is any doubt

15

as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566

16

(9th Cir. 1992) (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.

17

1979)).

18

III. EVIDENTIARY OBJECTIONS

19

Plaintiff objects to several paragraphs contained in Hang Alexandra Do’s

20

declaration in support of Ford’s Notice of Removal. Doc. No. 1-2 (“Do Decl.”).

21

In evaluating the existence of diversity jurisdiction on a motion to remand, courts

22

“consider . . . summary-judgment-type evidence relevant to the amount in controversy at

23

the time of removal.” Fritsch v. Swift Transp. Co. of Arizona, LLC, 899 F.3d 785, 793

24

(9th Cir. 2018). Federal Rule of Civil Procedure 56 requires that, before evidence can be

25

considered on summary judgment, a proper foundation must be laid. See Bias

26

v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007). Pursuant to Rule 56, “[a]n affidavit or

27

declaration used to support or oppose a motion must be made on personal knowledge, set

28

out facts that would be admissibly in evidence, and show that the affiant or declarant is
-3-

21-cv-1921-MMA (BLM)

1

competent to testify on the matters stated.” Fed. R. Civ. P 56(c)(4). However, the Ninth

2

Circuit has explained that “[a]t the summary judgment stage, we do not focus on the

3

admissibility of the evidence’s form. We instead focus on the admissibility of its

4

contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Fed. R. Civ.

5

P. 56(c)(2). To that end, “[i]f the contents of a document can be presented in a form that

6

would be admissible at trial,” a court has “no basis for refusing to consider it on summary

7

judgment” based upon other evidentiary objections. Sandoval v. Cty. of San Diego, 985

8

F.3d 657, 666 (9th Cir. 2021).

9

First, Plaintiff objects to Paragraph 7, wherein Do states: “Attached as Exhibit C is

10

a true and correct copy of the purchase contract for the Subject Vehicle, as produced

11

informally by Plaintiff.” Do Decl. ¶ 7. Exhibit C is a purchase agreement for a 2018

12

Ford Escape dated January 13, 2019. Doc. No. 1-5 (the “Purchase Agreement”).

13

According to Plaintiff, he has not provided a copy of any purchase agreement to Ford,

14

and thus, Do lacks the foundation and personal knowledge to offer the Purchase

15

Agreement as evidence. See Fed. R. Evid. 602. So far as the Court can surmise, Plaintiff

16

does not argue that Exhibit C is not a copy of the Purchase Agreement.2 Instead, Plaintiff

17

argues that because Do’s explanation as to how Ford obtained the Purchase Agreement—

18

that Plaintiff produced it—is incorrect, Ford cannot offer the Exhibit as evidence.

19

Plaintiff also argues that Paragraph 7, and therefore Exhibit C, violates the Best Evidence

20

Rule. Fed. R. Evid. 1002, 1003.

21

It is entirely unclear what “produced informally by Plaintiff” means. Do Decl. ¶ 7.

22

Moreover, Ford curiously does not address this argument or point in opposition.

23

Nonetheless, the Court OVERRULES Plaintiff’s objections to Paragraph 7. While

24

Plaintiff’s objection calls into question Do’s personal knowledge of the Purchase

25
26
27
28

2

Plaintiff does argue “it is unclear whether the attached contract is a proper duplicate of the original”
based upon the “redactions covering key identifying information.” Doc. No. 6 at 2. While it is true that
some identifying information is redacted, both the Purchase Agreement and Plaintiff’s State Court
Complaint refer to the same VIN. Compare State Ct. Compl. ¶ 4 with Doc. No. 1-5 at 2.
-4-

21-cv-1921-MMA (BLM)

1

Agreement—specifically, how Ford obtained it—as well as the ability for Do to

2

authenticate it at trial, there is no question that the Purchase Agreement can be offered at

3

trial. Moreover, as noted supra Note 2, Plaintiff identifies the Vehicle in the State Court

4

Complaint by VIN, and the same VIN is listed on the Purchase Agreement. Compare

5

State Ct. Compl. ¶ 4 with Doc. No. 1-5 at 2. Therefore, Plaintiff fails to raise a genuine

6

question as to the authenticity of the Purchase Agreement offered as Exhibit C.

7

Accordingly, the Court finds that the contents of Exhibit C are admissible.

8
9

Second, Plaintiff objects to Paragraph 8 on the basis that Do lacks foundation and
personal knowledge, Fed. R. Evid. 60, and that the statement contains improper expert

10

qualification, Fed. R. Evid. 702, and is improper lay witness opinion, Fed. R. Evid. 701.

11

In Paragraph 8, Do declares that “Wilson Turner Kosmo LLP has extensive experience

12

litigating consumer and product liability lawsuits” representing vehicle manufacturers in

13

over 4,000 cases including cases involving violations of the Song-Beverly Act. Do Decl.

14

¶ 8.

15

Because evidence as to Wilson Turner Kosmo LLP’s litigation experience could be

16

offered in some admissible form at trial, Plaintiff’s objections are unavailing. Moreover,

17

the Court can reasonably infer that Do—an attorney at Wilson Turner Kosmo LLP—has

18

personal knowledge of the firm’s Song-Beverly Act litigation experience. See

19

Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990). And the

20

paragraph does nothing more than state Do’s personal, layperson opinion that this

21

experience is “extensive.” Accordingly, the Court OVERRULES Plaintiff’s objections

22

to Paragraph 8.

23

Third, Plaintiff objects to the portion of Paragraph 9, wherein Do states: “In my

24

experience litigation [sic] such cases, plaintiff’s counsel routinely seek attorney’s fee

25

awards based on an hourly fee of $500, and the total amount of attorney’s fees in

26

warranty matters brought pursuant to Song-Beverly regularly exceed $20,000.00.” Do

27

Decl. ¶ 9. Plaintiff asserts that this statement is improper expert opinion, Fed. R. Evid.

28
-5-

21-cv-1921-MMA (BLM)

1

702, inadmissible hearsay, Fed. R. Evid. 802, improper lay witness opinion, Fed. R. Evid.

2

701, and lacks foundation and personal knowledge, Fed. R. Evid. 602.

3

For the same reasons explained above, the Court OVERRULES Plaintiff’s

4

objections to Paragraph 9. Evidence of what fees are “routinely” awarded could be

5

offered in admissible form at trial. And because Do is an attorney licensed to practice in

6

California and employed by Wilson Turner Kosmo LLP, Do Decl. ¶ 1, the Court can

7

reasonably infer Do’s personal knowledge of routine attorney’s fees requests in Song-

8

Beverly Act litigation.

9

IV. DISCUSSION

10

The parties do not dispute that Ford timely filed the Notice of Removal pursuant to

11

28 U.S.C. § 1441. NOR ¶ 2. According to Ford, the Court has subject matter jurisdiction

12

over the matter under 28 U.S.C. § 1332—diversity jurisdiction. NOR ¶ 9. Pursuant to

13

section 1332, a federal district court has jurisdiction over “all civil actions where the

14

matter in controversy exceeds the sum or value of $75,000, exclusive of interest and

15

costs,” and the dispute is between citizens of different states. 28 U.S.C. § 1332(a)(1).

16

At the time he initiated the State Court Action, Plaintiff was a citizen of, and

17

resided in, California. NOR ¶ 19; State Ct. Compl. ¶ 1. Ford is a corporation organized

18

under the laws of Delaware with its principal place of business in Michigan. NOR ¶ 20;

19

Do Decl. Exhibit B. Accordingly, there is complete diversity among the parties.

20
21

The parties do not dispute that complete diversity exists. Instead, the existence of
the Court’s subject matter jurisdiction over the action turns on the amount in controversy.

22

The Supreme Court has held that a notice of removal must include only “a

23

plausible allegation that the amount in controversy exceeds the jurisdictional threshold.”

24

Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 86 (2014). However,

25

once a “plaintiff contests, or the court questions, the defendant’s allegation” and “both

26

sides submit proof,” id. at 88, “the preponderance of the evidence standard applies,”

27

Schneider v. Ford Motor Co., 756 F. App’x 699, 700–01 (9th Cir. 2018).

28
-6-

21-cv-1921-MMA (BLM)

1

The State Court Complaint is silent as to the amount in controversy. And the issue

2

is disputed. See Doc. Nos. 5, 7. As such, Ford maintains the burden of establishing by

3

the preponderance of the evidence that this requirement has been met. Guglielmino

4

v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007); Schneider, 756 F. App’x at

5

700–01.

6

According to the Notice of Removal, Ford asserts that the amount in controversy

7

exceeds $75,000 because Plaintiff seeks restitution ($31,102.40 purchase price, NOR ¶

8

13) and a two-time civil penalty ($62,204.80, NOR ¶ 14) totalling $93,307.20, NOR ¶ 15.

9

Further, Ford notes that Plaintiff also seeks attorney’s fees, which “regularly exceed

10

$20,000,” NOR ¶ 17, bringing the total amount in controversy to at least $113,307.20. In

11

seeking to remand the action, Plaintiff asserts that Ford has not met its burden of proving

12

by the preponderance of the evidence that the amount in controversy exceeds $75,000.

13

A.

Restitution

14

According to the Notice of Removal, the purchase price of the Vehicle was

15

$31,102.40. NOR ¶ 13. Ford explains that because the Song-Beverly Act provides for

16

restitution equal to the purchase amount, Cal. Civ. Code § 1793.2(d)(2)(B), the amount in

17

controversy is at least $31,102.40. NOR ¶ 13.

18

As discussed above, Plaintiff takes issue with Ford’s proffering of the Purchase

19

Agreement. However, the Court overrules Plaintiff’s objections and finds that the

20

Purchase Agreement attached as Exhibit C is admissible for the purpose of determining

21

subject matter jurisdiction. Moreover, Plaintiff does not dispute that $31,102.40 was, in

22

fact, the purchase price, or provide any evidence to the contrary. Therefore, the Court

23

finds that Ford has established, for the sole purpose of this jurisdictional analysis, that the

24

purchase price of the Vehicle was $31,102.40 and therefore at least $31,102.40 is in

25

controversy.

26
27
28
-7-

21-cv-1921-MMA (BLM)

1

B.

2

Deductions
Ford’s notice of removal makes no mention of any deductions to the Vehicle’s

3

restitution value. Plaintiff, however, argues that the amount in controversy must be

4

reduced by several applicable deductions. Doc. No. 5 at 6–8. As the Ninth Circuit has

5

explained:

6

We have recognized that an estimate of the amount in controversy must be
reduced if “a specific rule of law or measure of damages limits the amount of
damages recoverable.” See, e.g., Morris v. Hotel Riviera, Inc., 704 F.2d 1113,
1115 (9th Cir. 1983); see also Naffe v. Frey, 789 F.3d 1030, 1040 (9th Cir.
2015). Thus, an estimate of the amount in controversy must be based on the
applicable “measure of damages,” not on what a plaintiff requests in a
complaint. See, e.g., Morris, 704 F.3d at 1115. Here, the measure of restitution
is defined as “[t]he difference between what the plaintiff paid and the value of
what the plaintiff received.” See, e.g., In re Vioxx Class Cases, 180 Cal. App.
4th 116, 131, 103 Cal. Rptr. 3d 83 (2009).

7
8
9
10
11
12
13
14

Schneider, 756 F. App’x at 702 n.3. Accordingly, the Court addresses the potential

15

deductions in calculating the amount in controversy.

16

1.

17

As Plaintiff correctly argues, restitution under the Song-Beverly Act—for the

Usage Offset

18

purpose of determining the amount in controversy—may be properly reduced by

19

“mileage offset” or “usage offset.” See Schneider, 756 F. App’x at 702 n. 3. Plaintiff

20

argues that usage offset would be $3,740.54. 3

21

In opposition, Ford offers an August 19, 2019 repair order, see Doc. No. 7-1 at 6–

22

8, Exhibit 1 (“Repair Order”), and asserts that this was the first repair presentation, Doc.

23

No. 7 at 12. According to the Repair Order, the Vehicle had 6,227 miles on the odometer

24

at the time of the first repair presentation. Doc. No. 7-1 at 7. This figure, minus the

25
26
27
28

3

According to Plaintiff, his first presentation of the Vehicle for repairs was made at 21,153 miles. Doc.
No. 5-1 (“Che Decl.”) ¶ 4. However, this assertion is controverted by the uncontested Repair Order,
submitted in opposition, and Plaintiff does not argue otherwise in reply.
-8-

21-cv-1921-MMA (BLM)

1

21 miles on the Vehicle’s odometer at the time of purchase, see Purchase Agreement at 2,

2

results in a mileage attributable to Plaintiff of 6,206. Doc. No. 7 at 7.

3

The cash value of the Vehicle at the time of purchase was $26,041. Doc. No. 7-1

4

at 3; Purchase Agreement at 2. Therefore, based upon the cash value, mileage

5

attributable to Plaintiff, and Song-Beverly Act statutory multiplier, the value of the

6

Vehicle may be reduced by $1,346.75.4 Consequently, the amount in controversy after

7

the usage offset deduction is $29,755.65. 5 Cal. Civ. Code § 1793.2(d)(2)(C).

8

2.

9

Plaintiff also asserts that the cost of the theft deterrent device may be properly

Non-Manufacturer Installed Items

10

deducted. Doc. No. 5 at 7. Pursuant to the Song-Beverly Act, when calculating

11

restitution, a manufacturer may exclude “nonmanufacturer items installed by a dealer.”

12

Cal. Civ. Code § 1793.2(d)(2)(B). Ford does not dispute this or otherwise argue that the

13

theft deterrent device may not be deducted. Doc. No. 7 at 12 n.2.

14

According to the Purchase Agreement, a theft deterrent device valued at $594 was

15

installed into the Vehicle at the time of sale. Purchase Agreement at 2. Therefore,

16

deducting this non-manufacturer installed item, the amount in controversy is reduced to

17

$29,161.65.6

18

3.

19

Finally, Plaintiff argues that the $4,800 Manufacturer’s Rebate should also be

Manufacturer’s Rebate

20

deducted. Doc. No. 5 at 8. Restitution under California Civil Code § 1793.2 is the

21

“actual price paid.” Cal. Civ. Code § 1793.2(d)(2)(B) (emphasis added). Put another

22

way, it is “[t]he difference between what the plaintiff paid and the value of what the

23

plaintiff received.” Schneider, 756 F. App’x at 702 n.3 (quoting In re Vioxx Class Cases,

24

103 Cal. Rptr. 3d 83, 96 (2009) (internal quotation marks omitted)). Here, because the

25
26
27
28

4

(6,206 * $26,041) / 120,000 = $1,346.75.
$31, 102.40 – $1,346.75 = $29,755.65.
6
$29,755.65 – $594 = $29,161.65.
5

-9-

21-cv-1921-MMA (BLM)

1

purchase price was reduced by $4,800 due to the Manufacturer’s Rebate—to wit Plaintiff

2

did not pay Ford $4,800—it may be properly excluded from the restitution calculation.

3

And again, Ford does not argue otherwise. Accordingly, the Court concludes that the

4

amount in controversy is reduced to $24,361.65.7

5

C.

6

Song-Beverly Act Civil Penalty
The Song-Beverly Act authorizes plaintiffs to recover “a civil penalty which shall

7

not exceed two times the amount of actual damages.” Cal. Civ. Code § 1794(c). As

8

noted above, in addition to restitution, Plaintiff also prays “[f]or civil penalty damages of

9

no more than two times Plaintiff’s actual damages, as per Cal. Civ. Code §1794(c) or

10

(e).”

11

“It is well established that punitive damages are part of the amount in controversy

12

in a civil action.” Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001). While

13

the Song-Beverly Act does not expressly provide for punitive damages, “[c]ourts have

14

held that the civil penalty under the Song-Beverly Act is akin to punitive damages,

15

because both have the dual effect of punishment and deterrence for defendants.” Brady v.

16

Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004, 1009 (N.D. Cal. 2002) (citations

17

omitted). Plaintiff does not dispute that the civil penalty is akin to punitive damages and

18

thus may be properly included in the amount in controversy calculation. Doc. No. 5 at 8–

19

9. Nonetheless, Plaintiff argues that Ford fails to meet its burden of showing that civil

20

penalty damages may be recoverable by the preponderance of the evidence. Doc. No. 5

21

at 8.

22

The amount in controversy encompasses “all relief a court may grant on that

23

complaint if the plaintiff is victorious.” Chavez v. JPMorgan Chase & Co., 888 F.3d

24

413, 414–15 (9th Cir. 2018). It “is simply an estimate of the total amount in dispute, not

25

a prospective assessment of defendant’s liability.” Lewis v. Verizon Communs., Inc., 627

26
27
28

7

$29,161.65 – $4,800 = $24,361.65.
-10-

21-cv-1921-MMA (BLM)

1

F.3d 395, 400 (9th Cir. 2010). Thus, “[i]n measuring the amount in controversy, a court

2

must assume that the allegations of the complaint are true and that a jury will return a

3

verdict for the plaintiff on all claims made in the complaint.” Korn v. Polo Ralph Lauren

4

Corp., 536 F. Supp. 2d 1199, 1205 (E.D. Cal. 2008).

5

According to the State Court Complaint, Ford was or should have been aware that

6

it was in violation of the Song-Beverly Act due to Ford’s “numerous service bulletins and

7

recall campaigns, its internal communications and investigations into the nature of the

8

same defect(s) in other 2018 Ford Escape vehicles equipped with the 1.5L EcoBoost

9

engine, warranty claims submitted to it, communications from its authorized repair

10

facilities, [and] communications from its consumers.” State Ct. Compl. ¶ 19; see also id.

11

¶ 27. On this basis, Plaintiff alleges that Ford’s violations were willful and that he is

12

therefore entitled to a two-time civil penalty under Cal. Civ. Code § 1794(c). Id. at ¶¶ 20,

13

28.

14

Assuming Plaintiff’s allegations are true and that he will succeed on his Song-

15

Beverly Act claims, Plaintiff will be entitled to the civil penalty. Therefore, the Court

16

finds that Ford has met its burden of showing that the amount in controversy includes the

17

prayed for civil penalty. Based upon the restitution value calculated above, Plaintiff

18

therefore may be entitled to $48,723.30 as a penalty. 8 Accordingly, the amount in

19

controversy is increased to $73,084.95. 9

20

D.

21

Attorney’s Fees
In support of removal, Ford asserts that the amount in controversy includes

22

Plaintiff’s prayed for attorney’s fees, “which regularly exceed $20,000.” NOR ¶ 17.

23

Plaintiff does not appear to dispute that attorney’s fees are included in the amount in

24

controversy calculation. Doc. No. 5 at 11. Indeed, a reasonable estimate of attorney’s

25
26
27
28

8
9

$24,361.65 * 2 = $48,723.30.
$24,361.65 + $48,723.30 = $73,084.95.
-11-

21-cv-1921-MMA (BLM)

1

fees likely to be incurred may be used in calculating the amount in controversy. See

2

Brady, 243 F. Supp. 2d at 1010–11.

3
4
5

Instead, Plaintiff takes issue with Ford’s evidence on this point. Doc. No. 5 at 11.
As discussed supra Part III, the Court overrules Plaintiff’s objections to Do’s declaration.
According to Do, at an hourly rate of $500, “attorney’s fees in warranty matters

6

brought pursuant to [the] Song-Beverly [Act] regularly exceed $20,000.” Do Decl. ¶ 9.

7

This is the only mention of attorney’s fees in Do’s declaration. Namely, Do’s declaration

8

is silent as to any estimate of attorney’s fees that have been incurred or are anticipated to

9

accrue. Further, Do’s declaration submitted in opposition to the motion to remand makes

10

no mention of attorney’s fees whatsoever; Do merely provides further support for Wilson

11

Turner Kosmo LLP’s “Song-Beverly and the Magnuson-Moss Warranty Act” experience.

12

Doc. No. 7-1 ¶ 16.

13

In its opposition brief, Ford argues that “Counsel in Song-Beverly matters have

14

recently been awarded fees in excess of $20,000.00 in Song-Beverly Act matters that

15

resolve at the Early Neutral Evaluation (“ENE”) Conference in this District.” Doc. No. 7

16

at 14. In support of this position, Ford cites to two cases, Pappas v. Ford Motor Co.,

17

No. 21-CV-584-BEN-KSC, 2021 WL 5810661 (S.D. Cal. De c. 7, 2021) (awarding

18

$21,165 in fees after the plaintiff sought $48,947.80 for a Song-Beverly matter, which

19

settled at the ENE Conference), and Tapia v. Ford Motor Co., No. 20-CV-1510-W-MSB,

20

(S.D. Cal. Oct. 19, 2021) (awarding $22,828.00 in fees after the plaintiff sought

21

$44,399.39 for a Song-Beverly matter, which settled at the ENE Conference). Id.

22

However, Ford’s argument is not evidence, and as the amount in controversy is in

23

dispute, the Court is required to apply the Rule 56 summary judgment evidentiary

24

standard. See Fritsch, 899 F.3d at 795 (“[W]e require a removing defendant to prove that

25

the amount in controversy (including attorneys’ fees) exceeds the jurisdictional threshold

26

by a preponderance of the evidence. We also require the defendant to make this showing

27

with summary-judgment-type evidence.”); Schneider, 756 F. App’x at 700–01; Sanchez

28

v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.1996). Moreover, the mere
-12-

21-cv-1921-MMA (BLM)

1

reference to two “recent” cases awarding attorney’s fees, Doc. No. 7 at 14, without more,

2

does not evince the amount of fees commonly incurred in similar litigation such that the

3

Court can determine that it is more likely than not that Plaintiff may be entitled attorney’s

4

fees “in excess of $20,000” in this case. Id.

5

In Brady, the court relied on both a declaration stating an estimate of fees incurred

6

to date and a declaration detailing fee awards in similar Song-Beverly Act cases to

7

calculate the amount in controversy. 243 F. Supp. 2d at 1011. Ford makes no

8

evidentiary attempt to come close to this showing. See Conrad Assocs. v. Hartford

9

Accident & Indemnity Co., 994 F. Supp. 1196, 1200 (N.D. Cal. 1998) (finding that

10

“[d]efendant’s contention that attorney fees are likely to total at least $20,000 is too

11

speculative” because defendant failed to estimate “the amount of time each major task

12

will take” or vary the hourly billing rate for each task); Sood v. FCA US, LLC, No. CV

13

21-4287-RSWL-SK, 2021 U.S. Dist. LEXIS 198438, at *16–17 (C.D. Cal. Oct. 14, 2021)

14

(finding that defendant’s reliance on Brady was misplaced because defendant did not

15

provide similar evidentiary support); Savall v. FCA US LLC, No. 21CV195 JM (KSC),

16

2021 U.S. Dist. LEXIS 81477, at *9–10 (S.D. Cal. Apr. 28, 2021) (distinguishing the

17

Brady case because “[w]ithout making some effort to set forth the value of attorneys’ fees

18

that Plaintiff is expected to incur, or that Plaintiff has incurred, [Defendant] has failed to

19

meet its burden . . .”). While the Court is mindful that future fees are unknown, it is

20

Ford’s burden to establish the Court’s subject matter jurisdiction and the mere allegation

21

that twice attorneys have been awarded amounts greater than $20,000 in cases settled at

22

the ENE “provides little, if anything, upon which the court can rely, at this early stage in

23

the litigation, to estimate the attorneys’ fees that could possibly be awarded in a

24

comparable Song-Beverly Act case.” Millan v. FCA US LLC, No. 20cv328 JM (MDD),

25

2020 U.S. Dist. LEXIS 117280, at *8–9 (S.D. Cal. July 2, 2020).

26

In sum, Ford’s argument regarding attorney’s fees is speculative, lacks evidentiary

27

support, and is conclusory at best. See Wastier v. Schwan’s Consumer Brands, N. Am.,

28

Inc., No. 07CV1594, 2007 U.S. Dist. LEXIS 89441, at *9 (S.D. Cal. Dec. 5, 2007).
-13-

21-cv-1921-MMA (BLM)

1

Simply assuming “at least $20,000,” Doc. No. 7 at 14, will be awarded is inconsistent

2

with the principle that the Ford “must provide evidence that it is ‘more likely than not’

3

that the amount in controversy” requirement is satisfied. Sanchez, 102 F.3d at 404.

4

Without making some effort to set forth the value of attorney’s fees Plaintiff is expected

5

to incur, Ford fails to meet its burden of showing that the amount of attorney’s fees

6

satisfies the amount in controversy requirement. Id.; Castillo v. FCA USA, LLC, No. 19-

7

CV-151-CAB-MDD, 2019 U.S. Dist. LEXIS 210180, at *5 (S.D. Cal. Dec. 5, 2019).

8

Therefore, the Court finds that Ford has not shown the amount in controversy

9

includes “at least $20,000” in attorney’s fees, Doc. No. 7 at 14, by the preponderance of

10

the evidence. Accordingly, the amount in controversy is $73,084.95 and therefore Ford

11

fails to overcome the traditional presumption against removal and establish the Court’s

12

subject matter jurisdiction pursuant to 28 U.S.C. § 1332.

13

V. CONCLUSION

14

Based upon the foregoing, the Court GRANTS Plaintiff’s motion to remand. The

15

Court therefore REMANDS this case to the Superior Court of California, County of San

16

Diego. As the Court lacks subject matter jurisdiction, the Court DECLINES to rule on

17

Ford’s pending motion to dismiss. Doc. No. 4. The Court further DIRECTS the Clerk

18

of Court to terminate all pending motions and close this case.

19
20

IT IS SO ORDERED.
Dated: January 10, 2022

21

_____________________________

22

HON. MICHAEL M. ANELLO
United States District Judge

23
24
25
26
27
28

-14-

21-cv-1921-MMA (BLM)