1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JIM CASSI, an individual, No. 2:23-cv-01801 WBS JDP 13 Plaintiff, 14 v. ORDER RE: PLAINTIFF’S MOTION TO REMAND AND DEFENDANT’S 15 GENERAL MOTORS, LLC, a limited MOTION TO DISMISS liability company; and DOES 1 16 through 10, inclusive, 17 Defendant. 18 19 ----oo0oo---- 20 Plaintiff Jim Cassi filed this action against General 21 Motors, LLC (“GM”) in state court, alleging violations of the 22 Song-Beverly Act, fraud, and violations of the Business & 23 Professionals Code § 17200 (“UCL”). (Compl. (Docket No. 1-1).). 24 Defendant removed this action to federal court based on diversity 25 jurisdiction. (Docket No. 1.) Defendant then filed a motion to 26 dismiss. (Mot. to Dismiss (Docket No. 8).) Plaintiff filed a 27 motion to remand. (Mot. to Remand (Docket No. 22).) 28 I. Motion to Remand 1 A. Legal Standard 2 Civil cases not arising under federal law are removable 3 to federal court only if each plaintiff's citizenship is 4 different from each defendant's citizenship, and the amount in 5 controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). The court 6 finds that defendant has established both with a preponderance of 7 the evidence.1 8 1. Diversity 9 Plaintiff alleges that he is a resident of Modesto, CA. 10 (Compl. ¶ 1.) Plaintiff’s counsel has also provided defendant 11 with a copy of the vehicle lease agreement which lists a 12 California address for plaintiff. (Strotz Decl. (Docket No. 24- 13 2).) This is sufficient to show that plaintiff is a California 14 citizen. See Bradley Min. Co. v. Boice, 194 F.2d 80, 84 (9th 15 Cir. 1951) (plaintiff’s state of residence presumptively state of 16 citizenship); Salazar v. Ford Motor Co., No. 2:21-cv-06756-FLA, 17 2022 WL 16855563, at 4 (C.D. Cal. Nov. 10, 2022) (party may rely 18 on an address listed in a purchase agreement to meet burden of 19 establishing individual's citizenship) (collecting cases). 20 Defendant is headquartered in and has its principal 21 place of business in Michigan; it is incorporated in Delaware. 22
23 1 Accompanying plaintiff’s remand reply are evidentiary objections to defendant’s Kuhn Declaration. (Objs. (Docket No. 24 26).) Specifically, plaintiff argues that various declarations regarding GM’s citizenship (1) lack the proper foundation 25 pursuant to Federal Rule of Evidence 602, and (2) are conclusory. (Objs.) Plaintiff’s objections are without merit. Timothy Kuhn 26 is employed as counsel for GM (Kuhn Decl. (Docket No. 24-3) ¶ 1.) 27 This is sufficient to establish Mr. Kuhn’s qualification to speak on GM’s corporate citizenship. Accordingly, the court will deny 28 plaintiff’s evidentiary objections and motion to strike. 1 (Kuhn Decl. (Docket No. 24-3) ¶¶ 4-6.) The same is true for 2 defendant’s ultimate parent, General Motors Company. (Id.) This 3 is sufficient to show that defendant is a citizen of Michigan and 4 Delaware.2 28 U.S.C. § 1332(c)(1); Johnson v. Columbia Props. 5 Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (limited 6 liability corporations have citizenship of all their members). 7 Accordingly, defendant has established that parties are 8 completely diverse pursuant to 28 U.S.C. § 1332. 9 2. Amount in Controversy 10 A defendant's initial burden in establishing the amount 11 in controversy for removal purposes is minimal: even a “plausible 12 allegation that the amount in controversy exceeds the 13 jurisdictional threshold” can suffice. Dart Cherokee Basin 14 Operating Co., LLC v. Owens, 135 S. Ct. 547, 551, 554 (2014) 15 (quoting 28 U.S.C. § 1446(a)). See also Gen. Motors Corp. v. 16 Manly Oldsmobile-GMC, Inc., No. C-07-0233 JCS, 2007 WL 776261, at 17 *3 (N.D. Cal. Mar. 12, 2007) (“Here, the allegations in the 18 complaint do not establish to a legal certainty that the amount- 19 in-controversy requirement cannot be met, that is, that there is 20 no set of facts that could be proven that would result in 21 equitable relief which would have a value . . . of $75,000.00 or 22 more.”) 23 Defendant clears this burden. During oral argument, 24 plaintiff reported that the actual amount paid to date under 25
26 2 Defendants sued under fictitious names are disregarded when determining removal jurisdiction. 28 U.S.C. § 1441(b)(1). 27 Accordingly, the court does not consider defendants Does 1-10 for the purpose of removal jurisdiction. 28 1 plaintiff’s lease contract was around $6,000. This provides a 2 plausible floor for actual damages. A Song-Beverly civil penalty 3 of twice this amount, see Cal. Civ. Code § 1794(c), is an 4 additional $12,000. 5 As for attorneys’ fees, defendant points to its 6 apparently significant experience with these types of cases, 7 where plaintiffs’ counsel reportedly often claim hourly rates of 8 $350-500 and seek fees exceeding $50,000 under section 1794(d) of 9 Song-Beverly. (Remand Opp’n (Docket No. 24) at 5; Kuhn Decl. 10 (Docket No. 1-4) ¶ 10.) Defendant also refers the court to case 11 law in support of the $50,000 amount. See, e.g., Selinger v. 12 Ford Motor Co., No. 2:22-CV-08883-SPG-KS, 2023 WL 2813510, at *11 13 (C.D. Cal. Apr. 5, 2023) (In Song-Beverly actions, “$50,000 in 14 attorney's fees is, on average, commonly viewed as a reasonable 15 estimate . . . .”). 16 Finally, as to punitive damages, defendant offers 17 analogous cases where punitive damages exceeded $50,000. (Remand 18 Opp’n at 3-6.) See Selinger, 2023 WL 2813510, at *10; In re 19 Volkswagen "Clean Diesel" Mktg., Sales Pracs., & Prod. Liab. 20 Litig., No. MDL 2672 CRB (JSC), 2019 WL 693234, at *5-6 (N.D. 21 Cal. Feb. 19, 2019). See also Simmons v. PCR Tech., 209 F. Supp. 22 2d 1029, 1033 (N.D. Cal. 2002) (defendant may introduce evidence 23 of jury verdicts in cases involving analogous facts to establish 24 probable punitive damages). 25 Accordingly, defendant has made a plausible showing 26 that the amount in controversy exceeds $75,000. The court will 27 therefore deny plaintiff’s motion to remand. 28 II. Motion to Dismiss 1 Defendant directs its motion to dismiss only at 2 plaintiff’s common law fraud claim (Claim 4), which is pled under 3 misrepresentation and concealment theories, and the claim under 4 the “fraudulent prong” of the UCL (Claim 5) (collectively the 5 “fraud claims”). (Mot. to Dismiss at 2.) Allegations of 6 fraudulent activity must satisfy the heightened pleading standard 7 of Rule 9(b) and identify “the who, what, when, where, and how” 8 of the fraud. Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 9 (9th Cir. 2003). Plaintiff’s fraud claims are defective in this 10 respect, as they do not even come close to alleging with the 11 requisite particularly the “who, what, when, where, and how” of 12 the specific acts comprising affirmative misrepresentations and 13 fraudulent conceal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JIM CASSI, an individual, No. 2:23-cv-01801 WBS JDP 13 Plaintiff, 14 v. ORDER RE: PLAINTIFF’S MOTION TO REMAND AND DEFENDANT’S 15 GENERAL MOTORS, LLC, a limited MOTION TO DISMISS liability company; and DOES 1 16 through 10, inclusive, 17 Defendant. 18 19 ----oo0oo---- 20 Plaintiff Jim Cassi filed this action against General 21 Motors, LLC (“GM”) in state court, alleging violations of the 22 Song-Beverly Act, fraud, and violations of the Business & 23 Professionals Code § 17200 (“UCL”). (Compl. (Docket No. 1-1).). 24 Defendant removed this action to federal court based on diversity 25 jurisdiction. (Docket No. 1.) Defendant then filed a motion to 26 dismiss. (Mot. to Dismiss (Docket No. 8).) Plaintiff filed a 27 motion to remand. (Mot. to Remand (Docket No. 22).) 28 I. Motion to Remand 1 A. Legal Standard 2 Civil cases not arising under federal law are removable 3 to federal court only if each plaintiff's citizenship is 4 different from each defendant's citizenship, and the amount in 5 controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). The court 6 finds that defendant has established both with a preponderance of 7 the evidence.1 8 1. Diversity 9 Plaintiff alleges that he is a resident of Modesto, CA. 10 (Compl. ¶ 1.) Plaintiff’s counsel has also provided defendant 11 with a copy of the vehicle lease agreement which lists a 12 California address for plaintiff. (Strotz Decl. (Docket No. 24- 13 2).) This is sufficient to show that plaintiff is a California 14 citizen. See Bradley Min. Co. v. Boice, 194 F.2d 80, 84 (9th 15 Cir. 1951) (plaintiff’s state of residence presumptively state of 16 citizenship); Salazar v. Ford Motor Co., No. 2:21-cv-06756-FLA, 17 2022 WL 16855563, at 4 (C.D. Cal. Nov. 10, 2022) (party may rely 18 on an address listed in a purchase agreement to meet burden of 19 establishing individual's citizenship) (collecting cases). 20 Defendant is headquartered in and has its principal 21 place of business in Michigan; it is incorporated in Delaware. 22
23 1 Accompanying plaintiff’s remand reply are evidentiary objections to defendant’s Kuhn Declaration. (Objs. (Docket No. 24 26).) Specifically, plaintiff argues that various declarations regarding GM’s citizenship (1) lack the proper foundation 25 pursuant to Federal Rule of Evidence 602, and (2) are conclusory. (Objs.) Plaintiff’s objections are without merit. Timothy Kuhn 26 is employed as counsel for GM (Kuhn Decl. (Docket No. 24-3) ¶ 1.) 27 This is sufficient to establish Mr. Kuhn’s qualification to speak on GM’s corporate citizenship. Accordingly, the court will deny 28 plaintiff’s evidentiary objections and motion to strike. 1 (Kuhn Decl. (Docket No. 24-3) ¶¶ 4-6.) The same is true for 2 defendant’s ultimate parent, General Motors Company. (Id.) This 3 is sufficient to show that defendant is a citizen of Michigan and 4 Delaware.2 28 U.S.C. § 1332(c)(1); Johnson v. Columbia Props. 5 Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (limited 6 liability corporations have citizenship of all their members). 7 Accordingly, defendant has established that parties are 8 completely diverse pursuant to 28 U.S.C. § 1332. 9 2. Amount in Controversy 10 A defendant's initial burden in establishing the amount 11 in controversy for removal purposes is minimal: even a “plausible 12 allegation that the amount in controversy exceeds the 13 jurisdictional threshold” can suffice. Dart Cherokee Basin 14 Operating Co., LLC v. Owens, 135 S. Ct. 547, 551, 554 (2014) 15 (quoting 28 U.S.C. § 1446(a)). See also Gen. Motors Corp. v. 16 Manly Oldsmobile-GMC, Inc., No. C-07-0233 JCS, 2007 WL 776261, at 17 *3 (N.D. Cal. Mar. 12, 2007) (“Here, the allegations in the 18 complaint do not establish to a legal certainty that the amount- 19 in-controversy requirement cannot be met, that is, that there is 20 no set of facts that could be proven that would result in 21 equitable relief which would have a value . . . of $75,000.00 or 22 more.”) 23 Defendant clears this burden. During oral argument, 24 plaintiff reported that the actual amount paid to date under 25
26 2 Defendants sued under fictitious names are disregarded when determining removal jurisdiction. 28 U.S.C. § 1441(b)(1). 27 Accordingly, the court does not consider defendants Does 1-10 for the purpose of removal jurisdiction. 28 1 plaintiff’s lease contract was around $6,000. This provides a 2 plausible floor for actual damages. A Song-Beverly civil penalty 3 of twice this amount, see Cal. Civ. Code § 1794(c), is an 4 additional $12,000. 5 As for attorneys’ fees, defendant points to its 6 apparently significant experience with these types of cases, 7 where plaintiffs’ counsel reportedly often claim hourly rates of 8 $350-500 and seek fees exceeding $50,000 under section 1794(d) of 9 Song-Beverly. (Remand Opp’n (Docket No. 24) at 5; Kuhn Decl. 10 (Docket No. 1-4) ¶ 10.) Defendant also refers the court to case 11 law in support of the $50,000 amount. See, e.g., Selinger v. 12 Ford Motor Co., No. 2:22-CV-08883-SPG-KS, 2023 WL 2813510, at *11 13 (C.D. Cal. Apr. 5, 2023) (In Song-Beverly actions, “$50,000 in 14 attorney's fees is, on average, commonly viewed as a reasonable 15 estimate . . . .”). 16 Finally, as to punitive damages, defendant offers 17 analogous cases where punitive damages exceeded $50,000. (Remand 18 Opp’n at 3-6.) See Selinger, 2023 WL 2813510, at *10; In re 19 Volkswagen "Clean Diesel" Mktg., Sales Pracs., & Prod. Liab. 20 Litig., No. MDL 2672 CRB (JSC), 2019 WL 693234, at *5-6 (N.D. 21 Cal. Feb. 19, 2019). See also Simmons v. PCR Tech., 209 F. Supp. 22 2d 1029, 1033 (N.D. Cal. 2002) (defendant may introduce evidence 23 of jury verdicts in cases involving analogous facts to establish 24 probable punitive damages). 25 Accordingly, defendant has made a plausible showing 26 that the amount in controversy exceeds $75,000. The court will 27 therefore deny plaintiff’s motion to remand. 28 II. Motion to Dismiss 1 Defendant directs its motion to dismiss only at 2 plaintiff’s common law fraud claim (Claim 4), which is pled under 3 misrepresentation and concealment theories, and the claim under 4 the “fraudulent prong” of the UCL (Claim 5) (collectively the 5 “fraud claims”). (Mot. to Dismiss at 2.) Allegations of 6 fraudulent activity must satisfy the heightened pleading standard 7 of Rule 9(b) and identify “the who, what, when, where, and how” 8 of the fraud. Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 9 (9th Cir. 2003). Plaintiff’s fraud claims are defective in this 10 respect, as they do not even come close to alleging with the 11 requisite particularly the “who, what, when, where, and how” of 12 the specific acts comprising affirmative misrepresentations and 13 fraudulent conceal. 14 Plaintiff appears to acknowledge this deficiency and 15 requests leave to amend his complaint should the court dismiss 16 his fraud claims. (Docket No. 20 at 5.) Defendant does not 17 oppose such a request (Docket No. 23 at 3), and the complaint’s 18 significant shortage of particular allegations regarding fraud 19 suggests that amendment would not be futile for plaintiff’s fraud 20 claims. Accordingly, the court will grant defendant’s motion to 21 dismiss and grant plaintiff leave to amend his complaint to 22 allege fraud with the requisite particularity. 23 IT IS THEREFORE ORDERED that plaintiff’s motion to 24 remand to state court (Docket No. 22) be, and the same hereby is, 25 DENIED.3 26
27 3 Plaintiff’s evidentiary objections and motion to strike (Docket No. 26) is also DENIED. 28 eee ee I OEE REND RENN IE OS OE EO EO
1 IT IS FURTHER ORDERED that defendant’s motion to 2 dismiss plaintiff’s common law fraud claim (Claim 4) and claim 3 | under the “fraud prong” of California Business & Professions Code 4 §$ 17200 (Claim 5) (Docket No. 8) be, and the same hereby is, 5 GRANTED. Plaintiff’s fraud claims are DISMISSED with leave to 6 | amend. Plaintiff may file a First Amended Complaint consistent 7 with this order, if able, within twenty days of its issuance. 8 | Dated: October 31, 2023 dite 4k. Ad. 9 WILLIAM B. SHUBB Lo UNITED STATES DISTRICT JUDGE
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