Salvestrini v. General Motors, LLC et al

Filing 15

ORDER Denying 10 Motion to Remand. Signed by Judge Thomas J. Whelan on 11/29/2023. (exs)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13

THOMAS SALVESTRINI,

Case No.: 3:23-cv-1556-W-DDL
Plaintiff,

14
15

v.

16

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

17
18

ORDER DENYING MOTION TO
REMAND [DOC. 10]

19
20

Pending before the Court is Plaintiff Thomas Salvestrini’s motion ([Doc. 10]

21

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

22

opposes ([Doc. 14] “Opposition”). Plaintiff has failed to reply.

23
24

The Court decides the matter on the papers submitted and without oral argument.
See Civ. R. 7.1(d)(1). For the following reasons, the Court DENIES the Motion.

25
26
27
28

I.

RELEVANT BACKGROUND
This case arises from Plaintiff’s alleged purchase of a 2021 Chevrolet Bolt (the

“Vehicle”) from one of General Motors, LLC’s (“Defendant”) “authorized dealer[‘s]” for
1
3:23-cv-1556-W-DDL

1

an unspecified amount. (Complaint at ¶¶ 7-9.1) According to Plaintiff, the vehicle was

2

covered by: (1) an express warranty, under which Defendant promised that the Vehicle

3

“would be free from defects in materials, nonconformities, or workmanship during the

4

applicable warranty period and to the extent the [Vehicle] had defects, [Defendant] would

5

repair the defects”; as well as (2) an implied warranty that the “[Vehicle] would be of the

6

same quality as similar vehicles . . . [and] would be fit for the ordinary purposes for

7

which similar vehicles are used.” (Id. ¶¶ 10, 11.) The Complaint alleges, however, that

8

during the warranty period, the Vehicle “exhibited defects” and that when Plaintiff

9

notified Defendant of such “defects” and “attempted to invoke the applicable warranties,”

10

Defendant “represented to PLAINTIFF that they could and would make the [Vehicle]

11

conform to the applicable warranties . . . .” (Id. ¶ 13-14.) Specifically, Plaintiff alleges

12

that Defendant “issued a recall notice for the [Vehicle]” warning Plaintiff not to charge

13

the Vehicle’s battery above “90%”; not to let the battery’s mileage “fall below seventy

14

(70) miles remaining”; and not to “park[] [the Vehicle] indoors overnight” because the

15

Vehicle’s battery “may ignite.” (Id. at ¶ 18.) Yet, Plaintiff alleges that Defendant has

16

since failed to “make the [Vehicle] conform to the applicable warranties.” (Id. at ¶ 15.)

17

On August 17, 2023, Plaintiff filed a lawsuit against Defendant in the San Diego

18

Superior Court, entitled Thomas Salvestrini v. General Motors, LLC, et al., No.37-2023-

19

00035602-CU-BC-CTL. The Complaint asserts three causes of action under the Song-

20

Beverly Consumer Warranty Act (Cal. Civ. Code § 1790, et seq.) (the “Song-Beverly

21

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

22

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

23

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

24

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

25

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

26
27
28

1

The Complaint is attached to the Notice of Removal [Doc. 1] as Exhibit A [Doc. 1-2].
2
3:23-cv-1556-W-DDL

1

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

2

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

3

¶¶ a–j.)

4

On or about August 22, 2023, Defendant removed the case to this Court based on

5

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

6

arguing that Defendant has not met its burden of overcoming the presumption against

7

removal. (Motion for Remand at 6:19-26.) While Plaintiff does not actually contest any

8

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

9

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

10

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

11

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

12

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

13

(Opposition at 6:12-25.) Plaintiff has not filed a reply.

14
15
16

II.

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

17

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

18

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

19

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

20

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

21

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

22

citations omitted). “It is to be presumed that a cause lies outside this limited jurisdiction

23

and the burden of establishing the contrary rests upon the party asserting jurisdiction.”

24

Id. (internal citations omitted).

25

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

26

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

27

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

28

defendant always has the burden of establishing that removal is proper.” Id. “Federal
3
3:23-cv-1556-W-DDL

1

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

2

instance.” Id.

3

In this vein, Plaintiff’s Motion argues that Defendant has the “burden of proving,

4

by a preponderance of the evidence” that removal is proper. (Motion for Remand at 7:5-

5

8.) However, for purposes of the amount in controversy requirement, “the notice of

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

jurisdictional elements.”).

18

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

19

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

20

(Notice of Removal at ¶¶ 10-24; see infra Section III.) Specifically, the Notice of

21

Removal alleges that Plaintiff is a citizen of California while Defendant is a citizen of

22

Michigan and Detroit. (Complaint at ¶ 1; Notice of Removal at ¶ 11-14.) The Notice of

23

Removal also alleges that the amount in controversy in this case is: (1) approximately

24

$38,467.00 2 in actual damages; plus (2) roughly $50,000 in potential attorney’s fees;

25

along with (3) a civil penalty up to twice the amount of actual damages (~$76,934.00).

26
27
28

2

See infra Section III(b)(1).
4
3:23-cv-1556-W-DDL

1

(Notice of Removal at ¶¶ 17-19; see infra Section III.) Thus, Defendant has plausibly

2

alleged that both the diversity of citizenship and amount in controversy requirements are

3

met.

4

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

5

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

6

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

7

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

8

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

9

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

10

If Plaintiff cannot or will not identify which of Defendant’s diversity of citizenship or

11

amount in controversy allegations he contests, the preponderance of the evidence

12

standard is not triggered.

13

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

14

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

15

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

16

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

17

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

18

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

19

contradictory evidence.

20
21
22

III.

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

23

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

24

(although Defendant has also satisfied that burden). From here, the Court turns to

25

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

26

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

27
28
5
3:23-cv-1556-W-DDL

1

A.

2

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

Diversity of Citizenship

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

owners/members are citizens.”).

12

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

13

in this case. (Notice of Removal at ¶ 10.) Specifically, Defendant alleges that Plaintiff is

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

requirement is met.

23
24

B.

25

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

Amount in Controversy

26

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

27

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

28
6
3:23-cv-1556-W-DDL

1

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

2

plaintiff would be entitled if she prevails.” Id.

3
4

1.

5

Actual Damages

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

6

Removal and accompanying Kuhn Declaration 3 alleges that the average manufacture’s

7

suggested retail price of the 2021 Chevrolet Bolt (the same model year Plaintiff alleges

8

he purchased) was $38,467.00. (Notice of Removal at ¶ 17; Kuhn Decl. at ¶ 8.) See

9

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

10

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

11

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

12

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

13

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

14

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

15

number which he undoubtedly knows) the Court will accept Defendant’s allegations that

16

the actual damages at issue are $38,467.00.

17

Defendant now states in its Opposition that Plaintiff actually purchased the Vehicle

18

for $40,235.00. (Opposition at 9:7-10.) However, since (as explained above) the Court

19

is deciding the Motion simply based on the allegations in the Notice of Removal and the

20

amount in controversy requirement is easily met using the lower $38,467.00 figure, the

21

Court will not look to extrinsic sources like the Opposition in determining the actual

22

damages at issue. For purposes of this order, the Court will consider $38,467.00 to be the

23

actual damages at issue.

24
25

Accordingly, Defendant must find at least an additional $36,533.01 to exceed the
required $75,000 in controversy.

26
27
28

3

The Kuhn Declaration is attached to the Notice of Removal as Doc. 1-4.
7
3:23-cv-1556-W-DDL

1
2
3

2.

Attorney’s Fees

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

added).

12

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

13

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

14

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

15

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

16

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

17

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

18

calculating the amount in controversy.

19

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

20

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

21

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

22

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

23

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

24

v. Ford Motor Company, 78 Cal. App. 5th 587 (2022) (upholding trial court’s award of

25

$836,528.12 in attorney’s fees to Plaintiff in case over a single $43,084.68 vehicle));

26

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

27

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

28

single $47,715.60 vehicle)); Kuhn Decl. Ex. A at 120 (Zargarian v. BMW of North
8
3:23-cv-1556-W-DDL

1

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

2

attorney’s fees in case over a single vehicle)); Kuhn Decl. Ex. A at 99 (Jurosky v BMW of

3

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

4

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

5

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

6

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

7

a single vehicle)); Kuhn Decl. Ex. A at 88 (Nisim v. Mercedes-Benz USA, LLC, No.

8

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

9

in attorney’s fees in case over a single vehicle)); Kuhn Decl. Ex. A at 90 (Urquiza v. Ford

10

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

11

Plaintiff $82,000.00 in attorney’s fees in case over a single vehicle)).)

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

that Plaintiff’s likely recoverable attorney’s fees in this case (if successful)—when

22

combined with the actual damages at issue—would push Plaintiff’s recovery over

23

$75,000.

24
25
26
27

3.

Civil Penalties

While the damages at issue in this case plus Plaintiff’s potential attorney’s fees
exceed $75,000, Defendant also argues the Court should include the Song-Beverly Act’s

28
9
3:23-cv-1556-W-DDL

1

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

2

of Removal at ¶ 18.)

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

Ford Motor Co., 2023 WL 3144540, at *10 (E.D. Cal. Apr. 28, 2023), report and

23

recommendation adopted, 2023 WL 4669863 (E.D. Cal. July 20, 2023) (“[w]here a

24

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

25

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

26

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

27
28

Here, the Complaint goes beyond merely requesting the Song-Beverly Act’s civil
penalties in the prayer for relief. Instead, Plaintiff makes numerous allegations of willful
10
3:23-cv-1556-W-DDL

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

Beverly Act’s civil penalty award of up to twice Plaintiff’s actual damages (~$38,467.00)

10

would be available—and thus could total as high as $76,934.00 in civil penalties alone.

11

This would more than exceed the required $75,000.00.

12
13

C.

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

grounds. Especially where Defendant states that: (1) Defendant was served with

23

the Complaint on July 31, 2023 and then removed on August 22, 2023 (i.e. within

24

the required 30 days) (Opposition at ¶ 13:16-18; see Notice of Removal at ¶ 3); (2)

25

the only named defendant is the one who filed the Notice of Removal (see 28

26

U.S.C. § 1446(b)(1) (“all defendants who have been properly joined and served

27

must join in or consent to the removal of the action”); Tucker v. Royal Adhesives &

28

Sealants, LLC, 2023 WL 2666056, at *6 (C.D. Cal. Mar. 28, 2023) (citing Soliman

Procedural Requirements

11
3:23-cv-1556-W-DDL

1

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

2

fictitiously named defendants are not to be considered when assessing the propriety

3

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

4

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

5

Removal at ¶ 4, Exs. A-B).

6
7
8
9
10
11
12

IV.

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

exceeds $75,000 and that there is complete diversity between the parties, the Court
DENIES Plaintiff’s Motion [Doc. 10].
IT IS SO ORDERED.
Dated: November 29, 2023

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
3:23-cv-1556-W-DDL