Epperson v. General Motors, LLC et al

Filing 16

ORDER Denying Motion to Remand 10 11 . Signed by Judge Thomas J. Whelan on 11/28/2023. (exs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES EPPERSON

Case No.: 3:23-cv-01554-W-AHG
Plaintiff,

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v.

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GENERAL MOTORS, LLC, a limited
liability company; and DOES 1 through
10, inclusive,
Defendants.

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ORDER DENYING MOTION TO
REMAND [DOCS. 10 and 11]

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Pending before the Court is Plaintiff James Epperson’s motion ([Docs. 10 and 11 1]

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“Motion”) to remand this case to the San Diego Superior Court. Defendant opposes

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([Doc. 15] “Opposition”). Plaintiff has failed to reply.

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The Court decides the matter on the papers submitted and without oral argument.

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See Civ. R. 7.1(d)(1). For the following reasons, the Court DENIES the Motion.

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//

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Plaintiff James Epperson has filed two motions to remand [Docs. 10 and 11]. The two motions
appear to be identical, as such the Court will treat them as the same.
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I.

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RELEVANT BACKGROUND
This case arises from Plaintiff James Epperson’s alleged purchase 2 of a 2020

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Chevrolet Bolt (the “Vehicle”) from one of General Motors, LLC’s (“Defendant”)

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“authorized dealer[‘s]” for an unspecified amount. (Complaint at ¶ 7-9. 3) According to

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Plaintiff, the vehicle was covered by: (1) an express warranty, under which Defendant

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promised that the Vehicle “would be free from defects in materials, nonconformities, or

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workmanship during the applicable warranty period and to the extent the [Vehicle] had

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defects, [Defendant] would repair the defects”; as well as (2) an implied warranty that the

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“[Vehicle] would be of the same quality as similar vehicles . . . [and] would be fit for the

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ordinary purposes for which similar vehicles are used.” (Id. ¶¶ 10, 11.) The Complaint

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alleges, however, that during the warranty period, the Vehicle “exhibited defects” and

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that when Plaintiff notified Defendant of such “defects” and “attempted to invoke the

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applicable warranties,” Defendant “represented to PLAINTIFF that they could and would

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make the [Vehicle] conform to the applicable warranties . . . .” (Id. ¶ 13-14.)

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Specifically, Plaintiff alleges that Defendant “issued a recall notice for the [Vehicle]”

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warning Plaintiff not to charge the Vehicle’s battery above “90%”; not to let the battery’s

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mileage “fall below seventy (70) miles remaining”; and not to “park[] [the Vehicle]

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indoors overnight” because the Vehicle’s battery “may ignite.” (Id. at ¶ 18.) Yet,

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Plaintiff alleges that Defendant has since failed to “make the [Vehicle] conform to the

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applicable warranties.” (Id. at ¶ 15.)

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On July 21, 2023, Plaintiff filed a lawsuit against Defendant in the San Diego

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Superior Court, entitled James Epperson v. General Motors LLC, et al., No.37-2023-

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00031140-CU-BC-CT. The Complaint asserts three causes of action under the Song-

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The Complaint alleges that Plaintiff “purchased” the Vehicle. Complaint at ¶ 4. Similarly, the
Notice of Removal refers to the agreement the parties entered into as a “Purchase Agreement.”
Notice of Removal at ¶ 17. The Court notes however that based on Defendant’s Opposition to
the Motion for Remand, the Vehicle may have actually been leased instead of purchased.
Opposition at 9:7-13.
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The Complaint is attached to the Notice of Removal [Doc. 1] as Exhibit A [Doc. 1-2].
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Beverly Consumer Warranty Act (Cal. Civ. Code § 1790, et seq.) (the “Song-Beverly

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Act”); one cause of action alleging fraud; and another alleging violations of the

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California Business & Professions Code § 17200. (Complaint at ¶¶ 35-120.) Plaintiff

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seeks, among other things, general, special, and actual damages; rescission of the

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purchase contract and restitution of all monies expended; compensatory damages for the

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diminution in value of the Vehicle; a civil penalty of two times Plaintiff’s actual,

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incidental, and consequential damages; consequential and incidental damages, punitive

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damages, attorney’s fees and costs, and prejudgment interest at the legal rate. (Id. Prayer

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¶¶ a–j.)

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On August 23, 2023, Defendant removed the case to this Court based on diversity

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jurisdiction. (Notice of Removal [Doc. 1].) Plaintiff now moves to remand, arguing that

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Defendant has not met its burden of overcoming the presumption against removal.

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(Motion for Remand [Doc. 11] 6:19-26.) While Plaintiff does not actually contest any of

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Defendant’s allegations regarding the existence of diversity jurisdiction, Plaintiff

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contends that Defendant must presently prove the existence of diversity jurisdiction by a

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preponderance of the evidence and complains that Defendant has not yet produced such

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evidence. (Motion for Remand at 7:16-11:2.) Defendant responds that it is not required

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to prove the existence of jurisdiction by a preponderance of the evidence at this stage.

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(Opposition [Doc. 15] at 1:12-25.) Plaintiff has not filed a reply.

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II.

LEGAL STANDARD
“The district courts shall have original jurisdiction of all civil actions where the

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

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costs, and is between— (1) citizens of different States . . . .” 28 U.S.C. § 1332.

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

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

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Constitution or a statute, which is not to be expanded by judicial decree.” Id. (internal

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citations omitted). “It is to be presumed that a cause lies outside this limited jurisdiction
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and the burden of establishing the contrary rests upon the party asserting jurisdiction.”

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Id. (internal citations omitted).

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Consistent with the limited jurisdiction of federal courts, the removal statute is

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strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566

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(9th Cir. 1992). “The strong presumption against removal jurisdiction means that the

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defendant always has the burden of establishing that removal is proper.” Id. “Federal

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jurisdiction must be rejected if there is any doubt as to the right of removal in the first

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instance.” Id.

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In this vein, Plaintiff’s Motion argues that Defendant has the “burden to prove, by

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preponderance of the evidence, that removal is proper.” (Motion for Remand at 7:5-8.)

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However, for purposes of the amount in controversy requirement, “the notice of removal

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must include only ‘a plausible allegation that the amount in controversy exceeds the

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jurisdictional threshold.’” Schneider v. Ford Motor Co., 756 F. App'x 699, 700 (9th Cir.

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2018) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89

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(2014)); Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018) (applying

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Dart Cherokee’s holding regarding the preponderance of the evidence standard to

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diversity cases beyond the CAFA context). Courts only move to Plaintiff’s desired

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preponderance of the evidence standard “after ‘the plaintiff contests, or the court

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questions, the defendant’s allegation’ and ‘both sides submit proof.’” Schneider, 756 F.

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App'x at 700. The same is true for the diversity of citizenship requirement. Acad. of

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Country Music v. Cont'l Cas. Co., 991 F.3d 1059, 1068 (9th Cir. 2021) (“[N]otice of

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removal ‘need not contain evidentiary submissions’ but only plausible allegations of the

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jurisdictional elements.”).

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Here, Defendant’s Notice of Removal plainly alleges that the diversity of

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citizenship and amount in controversy requirements are met and does so in detail.

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(Notice of Removal at 3-5; see infra Section III.) Specifically, the Complaint alleges that

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Plaintiff is a citizen of California while Defendant is a citizen of Michigan and Detroit.

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(Complaint at ¶ 1; Notice of Removal at ¶ 12-14.) The Complaint also alleges that the
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amount in controversy in this case is: (1) approximately $14,466.704 in actual damages;

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plus (2) roughly $50,000 in potential attorney’s fees; along with (3) a civil penalty up to

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twice the amount of actual damages (~$28,933.40). (Notice of Removal at ¶¶ 17-19; see

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infra Section III.) Thus, Defendant has plausibly alleged that both the diversity of

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citizenship and amount in controversy requirements are met.

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From there, Plaintiff could require Defendant prove these allegations by a

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preponderance of the evidence if he actually contested any of these allegations in his

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Motion. However, Plaintiff’s Motion does not actually contest any of Defendant’s

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allegations. Instead, the Motion simply asserts that Defendant has the burden of

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establishing jurisdiction by a “preponderance of the evidence” without ever identifying

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which of Defendant’s allegations Plaintiff contests. (See Motion for Remand at 9:22-24;

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see generally Notice of Removal at 9:20-22.) If Plaintiff cannot or will not identify which

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of Defendant’s diversity of citizenship or amount in controversy allegations he contests,

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the preponderance of the evidence standard is not triggered.

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Regardless, even if Plaintiff had identified allegations in the Notice of Removal

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that he contests, or if the Court questioned such allegations, Defendant has also satisfied

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the more stringent preponderance of the evidence standard by attaching a declaration to

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the Notice of Removal containing evidence supporting its contention that the parties are

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diverse and that the amount in controversy exceeds $75,000. (See Notice of Removal at

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Exs. A-C; infra Section III.) Plaintiff, meanwhile, failed to present the Court with any

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contradictory evidence.

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III.

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DISCUSSION
As outlined above, the Court will not require Defendant to prove its allegations of

diversity of citizenship and amount in controversy by a preponderance of the evidence

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See infra Section III(b)(1).
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(although Defendant has also satisfied that burden). From here, the Court turns to

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evaluating whether Defendant has met its burden of plausibly alleging that the parties are

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diverse and that the amount in controversy exceeds $75,000.00.

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A.

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To establish citizenship for diversity purposes, a natural born person must be a

Diversity of Citizenship

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citizen of the United States and be domiciled in a particular state. Kantor v. Wellesley

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Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). Persons are domiciled in the place

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they reside with the intent to remain or to which they intend to return. See Kanter v.

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Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). A corporation is a citizen of the

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state in which it is incorporated and of the state where it has its principal place of

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business. 28 U.S.C. 1332(d). LLCs are citizens of the states in which its members are

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citizens. See Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir.

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2006) (“[L]ike a partnership, an LLC is a citizen of every state of which its

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owners/members are citizens.”).

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Here, the Notice of Removal alleges that there is complete diversity of citizenship

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in this case. (Notice of Removal at ¶ 11.) Specifically, Defendant alleges that Plaintiff is

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a citizen of California while Defendant (an LLC) is 100% owned by General Motors

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Holdings, LLC; who in turn is 100% owned by General Motors Company—which is a

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Delaware corporation with its principal place of business in Michigan. (Id. at ¶ 12.)

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Thus, Defendant alleges complete diversity exists because it is a citizen of Delaware and

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Michigan while Plaintiff is a citizen of California. (Id. at ¶ 14.) Furthermore, Plaintiff’s

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own Complaint alleges that he is a citizen of California. (Complaint at ¶ 1.) Nor does

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Plaintiff ever actually contest that the parties are diverse. Accordingly, the Court finds

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that Defendant has met its burden of plausibly alleging that the diversity of citizenship

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requirement is met.

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B.

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In calculating the amount in controversy, courts must consider “the ‘amount at

Amount in Controversy

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stake in the underlying litigation.’” Fritsch v. Swift Transportation Co. of Arizona, LLC,

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899 F.3d 785, 793 (9th Cir. 2018) (quoting Chavez, 888 F.3d at 417-18). Thus, “the

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amount in controversy includes all relief claimed at the time of removal to which the

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plaintiff would be entitled if she prevails.” Id.

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Actual Damages

While the Complaint does not specify a damages figure, Defendant’s Notice of

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Removal and accompanying Kuhn Declaration 5 alleges that the average manufacture’s

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suggested retail price of the 2020 Chevrolet Bolt (the same model year Plaintiff alleges

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he purchased) was $38,371.00. (Notice of Removal at ¶ 17; Kuhn Decl. at ¶ 8.) See

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Schneider, 756 F. App'x at 701 (“Ford satisfied that more stringent [preponderance of the

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evidence] standard by attaching a declaration to its notice of removal. That declaration

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provided evidence that approximately 68,255 new F-150s from model years 2015-2017

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were sold in California during the five years between the class date and the date the

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lawsuit was filed, and that the F-150s’ average MSRP was $45,498.94 for those model

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years.”). Since Plaintiff does not allege how much he actually paid for the Vehicle (a

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number which he undoubtedly knows) the Court would normally accept that Defendant

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had adequately alleged in its Notice of Removal that the actual damages at issue are

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$38,371.00.

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However, Defendant’s Opposition complicates the matter by conceding (for the

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first time) that Plaintiff actually leased the Vehicle and only paid a total of $14,466.70

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towards the lease. (Oppositon at 9:7-13.) Absent any reply from Plaintiff, the Court will

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The Kuhn Declaration is attached to the Notice of Removal as Doc. 1-4.
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interpret this concession to effectively modify Defendant’s amount in controversy

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allegations from the Notice of Removal down to $14,466.70.

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Accordingly, Defendant must find at least an additional $60,533.31 to exceed the
required $75,000 in controversy.

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2.

Attorney’s Fees

28 U.S.C. section 1332 instructs that when calculating the amount in controversy,

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courts should exclude “interest and costs.” However, the Ninth Circuit has made clear

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that “attorneys’ fees award under fee-shifting statutes or contracts are included in the

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amount in controversy.” Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d

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785, 794 (9th Cir. 2018). Indeed, Cal. Civ. Code section 1793.4 states that when a

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plaintiff prevails in an action brought under Cal. Civ. Code section 1793.2, the plaintiff

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“shall be allowed by the court to recover as part of the judgment a sum equal to the

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aggregate amount of costs and expenses, including attorney’s fees . . . .” (Emphasis

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added).

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Here, since Plaintiff’s first three causes of action allege violations of the Song-

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Beverly Act, he will be entitled to recover his reasonable attorney's fees under section

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1793.4 if he prevails. (See Complaint at ¶¶ 65 (“PLAINTIFF is entitled under the Act to

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recover . . . actual attorney’s fees reasonably incurred in connection with the

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commencement and prosecution of this action.”; 46; 54.) As such, the Court must

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consider what attorney’s fees Plaintiff would likely be entitled to if he prevailed when

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calculating the amount in controversy.

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Defendant alleges in its Notice of Removal that attorney fees in similar Song-

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Beverly Act cases “regularly approach or exceed $50,000.00.” (Notice of Removal at ¶

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19.) Indeed, Defendant attaches to its Notice of Removal (by way of the Kuhn

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Declaration) a number of cases and court orders awarding plaintiffs roughly $50,000 or

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more in Song-Beverly Act cases regarding single vehicles. (Kuhn Decl. Ex. C. (Bowser

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v. Ford Motor Company, 78 Cal. App. 5th 587 (2022) (upholding trial court’s award of
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$836,528.12 in attorney’s fees to Plaintiff in case over a single $43,084.68 vehicle));

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Kuhn Decl. Ex. B (Anderson v. Ford Motor Company, 74 Cal. App. 5th 946 (2022)

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(upholding trial court’s award of $643,615.00 in attorney’s fees to Plaintiff in case over a

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single $47,715.60 vehicle)); Kuhn Decl. Ex. A at 120 (Zargarian v. BMW of North

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America, LLC, 442 F. Supp. 3d 1216 (C.D. Cal. 2020) (awarding Plaintiff $145,538.50 in

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attorney’s fees in case over a single vehicle)); Kuhn Decl. Ex. A at 98 (Jurosky v BMW of

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North America, LLC, (No. 19cv706 JM (BGS)) (S.D. Cal. August 25, 2020) (awarding

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Plaintiff $106,703.00 in attorney’s fees in case over a single $61,298.40 vehicle)); Kuhn

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Decl. Ex. A at 181 (Zomordian v. BMW of North America, LLC, No. CV 17-5061-DMG

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(C.D. Cal. July 23, 2019) (awarding Plaintiff $213,447.50 in attorney’s fees in case over

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a single vehicle)); Kuhn Decl. Ex. A at 87 (Nisim v. Mercedes-Benz USA, LLC, No.

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20STCV48243 (Los Angles Super. Ct., August 28, 2023) (awarding Plaintiff $43,169.00

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in attorney’s fees in case over a single vehicle)); Kuhn Decl. Ex. A at 89 (Urquiza v. Ford

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Motor Company, No. 20STCV16064 (Los Angles Super. Ct., June 3, 2022) (awarding

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Plaintiff $82,000.00 in attorney’s fees in case over a single vehicle)); Kuhn Decl. Ex. A

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at 137 (Gonzalez v. Mercedez-Benz USA, LLC, No. SC128379 (Los Angeles Co. Super.

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Ct., December 18, 2020) (awarding Plaintiff $169,963.50 in attorney’s fees in case over

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single vehicle)).)

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In estimating the amount of reasonable attorney’s fees Plaintiff would likely incur

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(and thus be entitled to receive if he were to prevail) in this case, the Court may “rely on

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‘[its] own knowledge of customary rates and [the Court’s] experience concerning

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reasonable and proper fees.’” Fritsch, 899 F.3d at 795 (quoting Ingram v. Oroudjian,

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647 F.3d 925, 928 (9th Cir. 2011)). Given the Court’s own knowledge of customary

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rates for Song-Beverly Act cases and experience concerning reasonable and proper

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attorney’s fees in such cases; Defendant’s allegations that Plaintiffs attorney’s fees in this

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case would likely be around or exceed $50,000.00 (along with supporting cases); and

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Plaintiff’s lack of presenting any argument or evidence to the contrary; the Court finds

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that Plaintiff’s likely recoverable attorney’s fees in this case (if successful)—when
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combined with the actual damages at issue—would push Plaintiff’s recovery over

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$75,000.

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3.

Civil Penalties

While the damages at issue in this case plus Plaintiff’s potential attorney’s fees

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exceed $75,000, Defendant also argues the Court should include the Song-Beverly Act’s

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civil penalty provision when calculating the amount in controversy requirement. (Notice

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of Removal at ¶ 19.)

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Cal. Civ. Code section 1794(d) states that “[i]f the buyer establishes that the failure

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to comply was willful, the judgment may include . . . a civil penalty which shall not

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exceed two times the number of actual damages.” (Emphasis added). There is a split

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among district courts in the Ninth Circuit about when to include potential Song-Beverly

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Act civil penalties when calculating the amount in controversy. E.g., Ferguson v. KIA

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Motors Am. Inc., 2021 WL 1997550, at *3 (E.D. Cal. May 19, 2021) (collecting and

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comparing cases in Southern and Central Districts of California and stating “[d]istrict

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courts in the Ninth Circuit are split on whether to include Song-Beverly Act civil

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penalties in calculations to assess the amount in controversy.”) In the past this Court—

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like many others—has taken the position that civil penalties under the Song-Beverly Act

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should not count towards the amount in controversy requirement where the complaint

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merely requests civil penalties in the prayer for relief. Ronquillo v. BMW of N. Am., LLC,

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2020 WL 6741317, at *2 (S.D. Cal. Nov. 17, 2020). Instead, there must actually be

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allegations of willfulness in the complaint. E.g., id. at *3 (“Rather than assuming that

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because a civil penalty is available, one will be awarded, the defendant must make some

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effort to justify the assumption by, for example, pointing to allegations in the Complaint .

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. . .”); Ferguson, 2021 WL 1997550, at *4 (holding that the court will only include the

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Song-Beverly Act’s civil penalties in calculating the amount in controversy where

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defendant points out where in the complaint “plaintiffs allege willfulness”); Villegas v.

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Ford Motor Co., 2023 WL 3144540, at *10 (E.D. Cal. Apr. 28, 2023), report and
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recommendation adopted, 2023 WL 4669863 (E.D. Cal. July 20, 2023) (“[w]here a

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plaintiff properly alleges entitlement to the Act's civil penalty, which includes allegations

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of the requisite willfulness by the defendant, up to two times the amount of actual

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damages is put at issue whether or not that amount is ultimately awarded.”).

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Here, the Complaint goes beyond merely requesting the Song-Beverly Act’s civil

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penalties in the prayer for relief. Instead, Plaintiff makes numerous allegations of willful

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misconduct against Defendant in the body of the Complaint. (Complaint at ¶¶ 43 (“The

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failure of [Defendant] to make the SUBJECT VECHICLE conform to the applicable

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express warranties was willful . . . .”); 44 (“The failure of [Defendant] to replace the

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SUBJECT VEHICLE or make restitution to PLAINTIFF was willful . . . .”); 45 (“The

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failure of [Defendant] to refund the consideration paid . . . or to replace the SUBJECT

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VEHICLE . . . was willful . . . .”); 69 (“[Defendant] willfully, falsely, and knowingly

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marketed the subject vehicle as having a range capacity to reach 259-miles on a full

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charge.”).) If such allegations of willfulness are proven true in this case, the Song-

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Beverly Act’s civil penalty award of up to twice Plaintiff’s actual damages (~$14,466.70)

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would be available—and thus could total as high as $28,933.40 in civil penalties alone.

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This combined with the actual damages and potential attorney’s fees at issue, would more

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than exceed the required $75,000.00.

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C.

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Lastly, Plaintiff asserts in its Motion for Remand that “Defendant must

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demonstrate that all of the requirements of 28 U.S.C. § 1446 are present, including

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that (1) a notice of removal containing the required allegations was filed within the

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time allowed, (2) all relevant parties have joined in the removal, and (3) Defendant

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attached all of the relevant pleadings from the Superior Court to the notice of

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removal.” (Motion for Remand at 11:13-18.) However, Plaintiff does not actually

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argue that Defendant’s Notice of Removal fails to meet any of these requirements.

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Thus, the Court does not interpret Plaintiff to be moving to remand on these

Procedural Requirements

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grounds. Especially where, on its face, the Notice of Removal alleges that: (1) the

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Complaint was served on July 26, 2023 and then removed on August 23, 2023 (i.e.

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within the required 30 days) (Notice of Removal at ¶ 3); (2) the only named

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defendant is the one who filed the Notice of Removal (see 28 U.S.C. § 1446(b)(1)

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(“all defendants who have been properly joined and served must join in or consent

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to the removal of the action”); Tucker v. Royal Adhesives & Sealants, LLC, 2023

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WL 2666056, at *6 (C.D. Cal. Mar. 28, 2023) (citing Soliman v. Philip Morris

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Inc., 311 F.3d 966, 966 (9th Cir. 2002)) (“[p]er its terms, fictitiously named

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defendants are not to be considered when assessing the propriety of removal

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jurisdiction based on diversity.”)); and (3) all the relevant state court pleadings

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plainly are attached to the Notice of Removal (see generally Notice of Removal at

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Exs. A-B).

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IV.

CONCLUSION & ORDER
Because Defendant has sufficiently established that the amount in controversy

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exceeds $75,000 and that there is complete diversity between the parties, the Court

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DENIES Plaintiff’s Motion [Doc. 10 and 11].

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IT IS SO ORDERED.
Dated: November 28, 2023

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