Dolores Calderon v. Bio-Medical Applications of Mission Hills, Inc.

• Court: District Court, C.D. California
• Decided: September 18, 2023
• Docket: 2:23-cv-03382
• Status: Unknown

Opinion

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No.: 2:23–cv–03382–MEMF–MRWx 11 DOLORES CALDERON and JASON CALDERON, individually, and on behalf of all ORDER GRANTING PLAINTIFFS’ 12 others similarly situated, MOTION TO REMAND AND REQUEST 13 Plaintiffs, FOR JUDICIAL NOTICE [ECF NOS. 13, 20] 14 v. 15 16 BIO-MEDICAL APPLICATIONS OF MISSION HILLS, INC. DBA FRESENIUS 17 KIDNEY CARE MISSION HILLS, a Delaware corporation; BIO-MEDICAL APPLICATIONS 18 OF CALIFORNIA, INC., a Delaware 19 corporation; FRESENIUS MANAGEMENT SERVICES, INC. DBA FRESENIUS 20 MEDICAL CARE NORTH AMERICA, a Delaware corporation; and DOES 1 through 10, 21 inclusive, 22 Defendants. 23 24 Before the Court is a Motion to Remand the Action to State Court (ECF No. 13) and Request 25 for Judicial Notice (ECF No. 20) filed by Plaintiffs Dolores Calderon and Jason Calderon. For the 26 reasons stated herein, the Court GRANTS the Motion. 27 28 / / / 1 BACKGROUND 2 I. Factual Background1 3 Plaintiff Dolores Calderon and Plaintiff Jason Calderon (collectively, “Plaintiffs”) are 4 individuals who reside in Los Angeles County. FAC ¶¶ 7–8. Defendant Bio-Medical Applications of 5 Missions Hills, Inc.; Defendant Bio-Medical Applications of California, Inc.; and Defendant 6 Fresenius Management Services, Inc. d/b/a Fresenius Medical Care North America (“Fresenius”) 7 (collectively, “Defendants”) are entities that operate in Los Angeles County. Id. ¶ 10. 8 Defendants employed Plaintiffs from 2007 to 2020. Id. ¶¶ 7–8. Defendants committed 9 various violations of employment law while employing Plaintiffs, including, at times, failing to pay 10 overtime, failing to pay for all hours worked, failing to provide meal breaks, failing to authorize rest 11 breaks, failing to timely pay, and failing to provide wage statements. Id. ¶¶ 14–21. 12 II. Procedural History 13 Plaintiffs filed suit in Los Angeles County Superior Court on July 28, 2022. See ECF No. 1 14 (“Notice of Removal” or “NOR”) at 1. Plaintiffs filed their FAC on April 3, 2023. See FAC. 15 Plaintiffs bring seven causes of action based on California law: (1) failure to pay minimum and 16 straight time wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure 17 to authorize and permit rest periods; (5) failure to timely pay final wages at termination; (6) failure 18 to provide accurate itemized wage statement; and (7) unfair business practices. See FAC ¶¶ 31–88. 19 Plaintiffs also seek attorneys’ fees. See id. at Prayer for Relief. 20 Defendants removed the action to this Court on May 3, 2023. See NOR. Alongside their 21 Notice of Removal, Defendants filed a declaration from Martha D’Sanchez, Director of Employee 22 Relations for Fresenius with facts that purportedly support the basis for federal jurisdiction, among 23 other filings. See ECF No. 1-7 (“D’Sanchez Declaration” or “D’Sanchez Decl.”). 24 25 26 1 Except as otherwise indicated, the following factual background is derived from Plaintiffs’ First Amended 27 Complaint. See ECF No. 1-4 at 31–55 (“FAC”). For the purposes of this Motion, the Court treats these factual allegations as true, but at this stage of the litigation, the Court makes no finding on the truth of these 28 1 Plaintiffs filed this Motion to Remand on June 2, 2023. ECF No. 13 (“Motion” or “Mot.”). 2 Plaintiffs also filed Evidentiary Objections to the D’Sanchez Declaration. ECF No. 13-2 3 (“Objections” or “Obj.”). Defendants filed an Opposition to the Motion on June 16, 2023. ECF No. 4 16 (“Opposition” or “Opp’n”). Defendants also filed a response to Plaintiffs’ Objections. ECF No. 5 17.On June 23, 2023, Plaintiffs filed a Reply in support of the Motion (ECF No. 19, “Reply”) and a 6 Request for Judicial Notice in Support of Reply (ECF No. 20, “RJN”). 7 REQUEST FOR JUDICIAL NOTICE 8 I. Applicable Law 9 A court may take judicial notice of facts not subject to reasonable dispute where the facts 10 “(1) [are] generally known within the trial court's territorial jurisdiction; or (2) can be accurately and 11 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 12 201(b). Under this standard, courts may take judicial notice of “undisputed matters of public record,” 13 but generally may not take judicial notice of “disputed facts stated in public records.” Lee v. City of 14 Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of 15 Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002). Public records, including documents on file in 16 federal court, are appropriate for judicial notice. See Harris v. County of Orange, 682 F.3d 1126, 17 1132–33 (9th Cir. 2012); United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007). 18 II. Discussion 19 Here, Plaintiffs request that the Court take judicial notice of various complaints filed in other 20 employment cases. RJN at 1. The Court concludes that these public records are appropriate materials 21 for judicial notice and takes judicial notice of the existence of the documents; however, the Court 22 does not take judicial notice of any disputed facts therein. See Harris, 682 F.3d at 1132; Lee, 250 23 F.3d at 690. 24 MOTION TO DISMISS 25 I. Applicable Law 26 “Federal courts are courts of limited jurisdiction,” and can only hear cases where there is a 27 valid basis for federal jurisdiction. Richardson v. United States, 943 F.2d 1107, 1112 (9th Cir. 1991). 28 Although there are several possible bases for federal jurisdiction, only one is relevant to this Order: 1 the diversity jurisdiction provisions of the Class Action Fairness Act of 2005 (“CAFA”). See 28 2 U.S.C. § 1332(d)(2). Federal district courts have jurisdiction over class action lawsuits where the 3 amount in controversy exceeds $5,000,000 and minimal diversity requirements are met.2 See id. 4 When a plaintiff files an action in state court over which federal courts might have 5 jurisdiction, the defendant may remove the action to federal court. See 28 U.S.C. § 1446. When the 6 defendant does so pursuant to CAFA, the defendant must make a “plausible allegation that the 7 amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co., 8 LLC v. Owens, 574 U.S. 81, 89 (2014). If the plaintiff contests whether the amount of controversy is 9 sufficient for jurisdiction, “evidence establishing the amount is required.” Id. 10 The defendant who removed the case bears the burden “to show the amount in controversy 11 by a preponderance of the evidence.” Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th 989, 994 12 (9th Cir. 2022). However, although there is a presumption against removal in the context of some 13 other bases for jurisdiction, there is “no antiremoval presumption” in cases invoking CAFA 14 jurisdiction. Dart Cherokee, 574 U.S. at 89. In other words, the Defendant bears the burden of 15 showing removal is proper, but there is no “thumb on the scale against removal.” Jauregui, 28 F.4th 16 at 994. 17 Rather, the procedure is that “[t]he parties may submit evidence outside the complaint, 18 including affidavits or declarations, or other ‘summary-judgment-type evidence relevant to the 19 amount in controversy at the time of removal.’” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 20 (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (internal 21 quotation marks omitted)).3 In determining the amount in controversy, the defendant may rely on “a 22 23 2 The diversity requirements of CAFA are not at issue in this Order, as all parties appear to agree that these requirements are met, and so the Court will not explain these requirements in detail. See 28 U.S.C. §§ 24 1332(d)(2)(A)–(C). 25 3 Both Plaintiffs and Defendants discussed whether the challenge to jurisdiction here should be construed as facial or factual. See Opp’n at 6–8; Reply at 2. This distinction is not relevant when analyzing removal 26 pursuant to CAFA. See Dart Cherokee, 574 U.S. at 84–96 (laying out standard for CAFA removal challenges and not mentioning factual vs. facial distinction); Jauregui, 28 F.4th at 992–96 (same). Furthermore, 27 Defendants’ assertions that Plaintiffs do not challenge the Defendants’ assertions or the rationality of their assumptions but argue only that the assumptions were not supported with summary-judgment-type evidence, 28 1 chain of reasoning that includes assumptions.” Arias v. Residence Inn by Marriott, 936 F.3d 920, 2 925 (9th Cir. 2019). “An assumption may be reasonable if it is founded on the allegations of the 3 complaint.” Id. But, “a defendant cannot establish removal jurisdiction by mere speculation and 4 conjecture, with unreasonable assumptions.” Ibarra, 775 F.3d at 1197. 5 It is settled law in the Ninth Circuit that CAFA’s provisions should be interpreted broadly 6 with a “strong preference” for class actions to be heard in federal court when properly removed. 7 Jauregui, 28 F.4th at 993. And in the early stages of litigation, a defendant has no choice but to rely 8 on assumptions when calculating an amount in controversy using the plaintiff’s complaint before 9 resolving any disputes over key facts. Id. As a result, it is inappropriate to demand exact certainty 10 from a defendant in their calculations of the amount in controversy. Id. However, “[w]here a 11 defendant’s assumption is unreasonable on its face without comparison to a better alternative, a 12 district court may be justified in simply rejecting that assumption and concluding that the defendant 13 failed to meet its burden.” Id. at 996. 14 On the other hand, where “a defendant’s assumption is rejected is because a different, better 15 assumption is identified . . . the district court should consider the claim under the better 16 assumption—not just zero-out the claim.” Id. In those circumstances, the Court should identify, 17 applying a preponderance of the evidence standard, the best possible assumptions, and use these to 18 calculate the total amount in controversy. See id. 19 If the total amount is found to be greater than $5,000,000, the action will remain in federal 20 court. See 28 U.S.C. § 1332(d)(2). If not, it should be remanded to state court. See id. 21 II. Discussion 22 Defendants estimated the amount in controversy by first determining the universe of 23 employees covered by the relevant time period—based upon their business records—then making 24 certain assumptions about the violation rates for each of the Plaintiffs’ causes of actions—based 25 26

27 see Opp’n at 2, 6, is incorrect. See, e.g., Motion at 7 (“Defendant’s assumptions are unreasonable, and again, 28 1 upon the language in the FAC. From there, they applied simple arithmetic to arrive at the final 2 estimate. 3 A. Defendants’ calculations regarding the universe of possible Class Members is supported by substantial evidence. 4 5 Defendants based their estimate of the amount in controversy in part on certain facts 6 regarding the universe of possible Class Members. The Court finds that these proposed facts are 7 based on appropriate, “summary-judgment-type” evidence. Those facts are as follows: Defendants 8 employed approximately 4,034 employees during the relevant time period.4 See NOR at 6 (citing 9 D’Sanchez Decl. ¶ 10a). These employees were paid “an average of approximately $31.21 per 10 hour,”5 and worked three to five 8-hour shifts per week. Id. at 8 (citing D’Sanchez Decl. ¶ 10b). For 11 the time period of March 21, 2019, to April 4, 2023, these employees worked an average of 71 12 workweeks6 each. Id. (citing D’Sanchez Decl. ¶ 10c). For all subsequent calculations, this number of 13 workweeks was discounted at a 40/52 ratio to account for vacations, holidays, and other time off. 14 See id. at 8–9, 10, 11. 15 These facts are well supported by competent evidence—namely a declaration under penalty 16 of perjury by an individual who is familiar with the operations of the Defendants and their business 17 records and provided her declaration based upon her personal knowledge. 18 / / / 19 20

21 4 Plaintiffs object to this estimate on the bases of the hearsay rule and best evidence rule. Obj. ¶ 4. This 22 objection is OVERRRULED. D’Sanchez’s testimony regarding the number of employees is based on D’Sanchez’s personal knowledge based on her “review of the BMA California Records.” D’Sanchez Decl. ¶ 23 10a. It is not hearsay. Those records appear to be records of a regularly conducted activity, and so are not 24 excluded by the hearsay rule. See Fed. R. Evid. 803(6). The best evidence rule does not require submission of payroll documents to prove a number of employees. See Fed. R. Evid. 1003 Advisory Committee’s Notes 25 (“payment may be proved without producing the written receipt which was given”). 5 Plaintiffs object to this estimate on the bases of the hearsay rule and best evidence rule. Obj. ¶ 8. For similar 26 reasons to those described above, this objection is OVERRULED. 27 6 Plaintiffs object to this estimate on the bases of relevance, the hearsay rule, and the best evidence rule. Obj. ¶ 10. For similar reasons to those described above, this objection is OVERRULED. 28 1 therefore they have failed to show that the amount in controversy is over $5,000,000. 2 Having determined the full universe of possible Class Members, the Defendants proceed to 3 make certain assumptions about the violation rate—that is, how many employees suffered a given 4 violation, and how often those employees suffered that violation. Defendants appear to acknowledge 5 that the D’Sanchez Declaration provides no support for the violation rate. Rather, the Defendants 6 point to the language of the FAC to support their assumptions. The Court finds that the language 7 pointed to by the Defendants is too slim a reed upon which to rest their assumptions, and therefore 8 they have failed to meet their burden. 9 For the second cause of action (Failure to Pay Overtime Wages), Defendants assumed a 75% 10 violation rate, that is, that 75% of employees suffered overtime violations. See id. at 8–9. Thus, 11 Defendants assumed 3,025 of the 4,034 employees suffered overtime violations. See id. Defendants 12 then assumed that for the 75% of employees who suffered violations, the average frequency was one 13 hour of overtime every two weeks (.5 per week). See id. at 8. Defendants multiplied the number of 14 affected employees (3,025) by the penalty for .5 hours of missed overtime per week ($46.81, or 1.5 x 15 $31.21), and then multiplied this number by the discounted number of workweeks (71 x 40/52). See 16 id. at 9. This resulted in a total amount in controversy of $3,866,776 for the second cause of action. 17 See id. 18 For the third cause of action (Failure to Provide Meal Periods), Defendants again assumed 19 75% of employees were affected, amounting to 3,025 in total. See id. at 10. Defendants assumed one 20 missed meal period violation per week, and again discounted the number of weeks by 40/52. See id. 21 Thus, Defendants multiplied the number of affected employees (3,025) by the penalty for a missed 22 meal period ($31.21), and then multiplied this number by the discounted number of workweeks (71 23 x 40/52). See id. This resulted in a total amount in controversy of $5,156,252 for the third cause of 24 action. See id. 25 For the fourth cause of action (Failure to Authorize and Permit Rest Periods), Defendants 26 again assumed 75% of employees were affected, amounting to 3,025 employees in total. See id. at 27 11. Defendants assumed one missed rest period violation per week, and again discounted the number 28 1 of weeks by 40/52. See id. Thus, Defendants multiplied the number of affected employees (3,025) by 2 the penalty for a missed rest break ($31.21), and then multiplied this number by the discounted 3 number of workweeks (71 x 40/52). See id. This resulted in a total of $5,156,252 for the third cause 4 of action. See id. 5 The assumptions and calculations above are summarized in the table below. Defendants did 6 not provide detailed estimates for other causes of action in their Notice of Removal, having shown 7 that the total for these three claims is well over the $5,000,000 threshold per Defendants’ estimates. 8 Cause of Cause of Action Affected Violations Penalty Total Amount 9 Action Employee per week per in Controversy Number Percentage Violation 10 2 Failure to Pay Overtime Wages 75% 0.5 $46.81 $3,866,776.00 11 3 Failure to Provide Meal Periods 75% 1 $31.21 $5,156,252.00 4 Failure to Authorize and Permit 75% 1 $31.21 $5,156,252.00 12 Rest Periods Total $14,179,280 13 14 Defendants contend that both sets of assumptions—how many employees were affected and 15 how often the affected employees were affected—are based on the language of the FAC. 16 Specifically, the Defendants point to scattered references to “policy” or “practice”7 as well as 17 language regarding the fact that Defendants made it “impossible” or “impracticable”8 for employees 18 to take rest and meal breaks. With respect to the “policy” or “practice” language, the Court does not 19 find that this language supports the assumptions. That something is a policy or practice does not 20 provide any indication of how many employees it affects or how often it affects them.9 Similarly, 21 looking at the language of the FAC in context, it is not clear that the Plaintiffs are alleging that 22 Defendants made it impossible or impracticable all the time for all employees to take their rest and 23 meal breaks: 24

25 7 See, e.g., Opp’n at 14 (identifying 15 times that these terms were used in the FAC); FAC ¶¶ 1, 5, 6, 20. 26 8 See, e.g., Opp’n at 15; FAC ¶¶ 52, 56. 27 9 In addition, the Court notes that many of the uses of the term “practice” are used as part of the phrase “unfair business practices,” a description of the seventh cause of action under Business & Professions Code Section 28 1 Dthees Cpiltaes sth, eosre s loemgael orfe qthueirmem, wenitths , bDoethfe mndeaanl tpse arti otdims eass fraeiqluedir etod bpyro Cviadleif oPrlnaiian tliaffws . aBndy 2 their failure to permit and authorize Plaintiffs and the Class, or some of them, to take all meal periods as alleged above (or due to the fact that Defendants made it impossible 3 or impracticable to take these uninterrupted meal periods), Defendants willfully violated the processions of California Labor Code § 226.7 and the applicable Wage 4 Orders. 5 FAC ¶ 52 (emphasis added); see also FAC ¶ 56 (substantially the same). In fact, this language says 6 nothing about for whom and how often Defendants made it impossible or impracticable to take the 7 required breaks.10 8 Plaintiffs contest both sets of two key assumptions underlying the analysis above: the 9 assumption of a 75% affected employee rate, and the assumptions regarding frequency of violations 10 (.5 hours of overtime per week, one missed meal period per week, and one missed rest period per 11 week). See Mot. at 6–12. They point to limiting language in the FAC which the Defendants would 12 have this Court disregard. The rest and meal break allegations quoted above provide a salient 13 example: Despite these legal requirements, Defendants at times failed to provide Plaintiffs and 14 the Class, or some of them, with both meal periods as required by California law. By 15 their failure to permit and authorize Plaintiffs and the Class, or some of them, to take all meal periods as alleged above (or due to the fact that Defendants made it impossible 16 or impracticable to take these uninterrupted meal periods), Defendants willfully violated the processions of California Labor Code § 226.7 and the applicable Wage 17 Orders. 18 FAC ¶ 52 (emphasis added); see also FAC ¶ 56 (substantially the same). The language “at times” 19 and “some of them,” which appears in all of the claims at issue clearly limit the allegations regarding 20 how many employees were affected and how often they were affected. But that language does not 21 support the Defendants’ assumptions because the language is not susceptible of a numerical 22 quantification. Defendants’ only response is that exactitude is not required. And they are correct. But 23 what the law demands—and therefore this Court must require—is a reasonable basis for the 24 assumptions. “Policy,” “practice,” “at times,” and “some of them” cannot reasonably be read as 75% 25 26 10 Defendants also asserted that the commonality and typicality allegations in the FAC, FAC ¶¶ 27-28, further support the reasonableness of the Defendants’ assumptions. But neither commonality nor typicality mean that 27 every issue applies to every class member. See Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 10- C (Class Actions), §§ 10:273 (“Not every issue in the case must be common to all class members.”), 10:285 28 1 of employees, .5 hours of overtime per week, one missed meal period per week, and one missed rest 2 period per week. 3 Put another way, the core allegations are open to multiple interpretations, and the Defendants 4 have pointed to nothing making their interpretation more likely than not, which is their burden. For 5 example, with respect to the second cause of action, the FAC alleges that “[a]t all time relevant 6 hereto, Plaintiffs and the Class, or some of them, have at times worked more than eight hours in a 7 workday,” and “Defendants failed to pay to Plaintiffs and the Class, or some of them, overtime 8 compensation for the hours they worked in excess of the maximum hours permissible by law.” FAC 9 ¶¶ 44 (emphasis added), 45 (emphasis added). The FAC further alleges that Defendants’ failure to 10 keep records make it “difficult to calculate the full extent of overtime compensation.” Id. ¶ 47 11 (emphasis added). This language is open to multiple interpretations—one could assume that nearly 12 all employees were affected and violations were frequent for those employees, or that only a few 13 employees were affected and violations were rare for those employees. Similarly, for the third cause 14 of action, the FAC alleges that Defendants “at times failed to provide Plaintiffs and the Class, or 15 some of them, with both meal periods as required by California law.” FAC ¶ 52 (emphasis added). 16 Again, this language is open to multiple interpretations as to the frequency of violations and number 17 of affected employees. Finally, for the fourth cause of the action, the FAC alleges that Defendants 18 “at times failed to authorize Plaintiffs and the Class, or some of them, to take breaks.” FAC ¶ 56 19 (emphasis added). This too is susceptible to multiple interpretations as to the frequency of violations 20 and number of affected employees. 21 Although Defendants “must be able to rely on a chain of reasoning that includes 22 assumptions,” this is only the case “as long as the reasoning and underlying assumptions are 23 reasonable.” Jauregui, 28 F.4th at 994. Defendants’ underlying assumptions are untethered to the 24 language of the FAC and therefore unreasonable. Although Defendants claim they are taken from 25 the language of the FAC, this Court finds that in reality, they are the equivalent of the “speculation” 26 and “assumptions . . . pulled from thin air” that the Ninth Circuit has prohibited. See Ibarra, 775 27 F.3d at 1197, 1199. 28 1 As Defendants note in their Opposition, other claims not discussed in detail in the Notice of 2 Removal should also be included in the total.11 For example, Defendants estimate in their Opposition 3 that the amount in controversy from the fifth cause of action (Failure to Timely Pay Final Wages at 4 Termination) is $18,117,254, based upon a 100% violation rate. See Opp’n at 18–19. Similarly, 5 Defendants argue in their Opposition that the request for attorneys’ fees will add 25% to the amount 6 in controversy. See Opp’n at 19–20. Plaintiffs do not appear to dispute that 25% is the correct 7 percentage to add but dispute the base number that 25% will be added to. See Reply at 9 (“Even if 8 the percentage of attorneys’ fees used by Defendants is not unreasonable in and of itself, it is applied 9 ‘to valuations of the claims that are inherently unreasonable.’”). But because the Plaintiffs contest 10 the underlying assumptions and the Court finds the underlying assumptions are unreasonable (in 11 light of the limiting language), the resulting numbers are unsupported. 12 This Court finds that this case presents the very situation discussed in Jauregui: “Where a 13 defendant’s assumption is unreasonable on its face without comparison to a better alternative, a 14 district court may be justified in simply rejecting that assumption and concluding that the defendant 15 failed to meet its burden.” Jauregui, 28 F.4th at 996. 16 At the hearing in this matter, counsel for the Defendants pointed to several district court 17 cases finding on similar facts that these assumptions are reasonable. Given that these cases are not 18 binding on this Court and that Plaintiffs can point to several district court cases reaching the opposite 19 conclusion, this argument is ultimately unavailing. 20 Counsel also asserted that the Court’s requirement of greater support than the scattered vague 21 terms in the Complaint is contrary to what CAFA intended, because CAFA did not intend to place 22 such an onerous burden on defendants. As counsel explained, thirty days is simply too short a period 23 of time to provide anything more than what the Defendants provided, given the Plaintiffs’ “artful 24 pleading” and “squishy language.” Unfortunately for the Defendants, however, this Court is limited 25 26 11 Defendants may submit additional evidence and argument not contained in the Notice of Removal in their Opposition. See Dart Cherokee, 574 U.S. at 89 (“a defendant’s notice of removal need include only a 27 plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the 28 1 by the plain language of the statute and is bound by Ninth Circuit authority. Neither the statute nor 2 case law permit the Court to relax the applicable requirements under the circumstances presented by 3 this case. 4 Moreover, it does not appear that the Court’s requirement is an onerous one. As at least one 5 other court has found, another approach would be for Defendants to obtain the information needed to 6 show the amount in controversy in state court and seek to remove at that time. Toribio v. ITT 7 Aerospace Controls LLC, No. CV 19-5430-GW-JPRX, 2019 WL 4254935, at *3 (C.D. Cal. Sept. 5, 8 2019) (“Faced with a vague pleading, it seems to this Court that the much-more-sensible route would 9 be to try to pin Plaintiff down, in state court (with no one-year time-limit staring Defendants in the 10 face), with respect to what the Complaint’s allegations actually mean with respect to violation rates. 11 Perhaps Defendants do this by serving interrogatories or requests for admission, perhaps by 12 deposition, perhaps by moving for a more definite statement. Perhaps they simply get Plaintiff to 13 identify what the violation rates would be for Plaintiff, and then use that information as a sample to 14 extrapolate out the calculation for the entire class.”). When asked about this at the hearing, counsel 15 for both parties acknowledged that should the Defendants later obtain information showing the 16 amount in controversy, they could attempt removal at that time. See 28 U.S.C. § 1446; Rutter Group 17 Prac. Guide Fed. Civ. Pro. Before Trial Ch. 2D-7 (Time for Removal), §§ 2:3230 (“Where 18 removability is uncertain, the 30-day period is measured from the point at which defendant had 19 notice that the action is removable . . . .”); 2:3247.2 (“Uncertainty as to amount in controversy under 20 CAFA: Even where it would be a fair assumption from the named plaintiff’s alleged damages to 21 conclude that the amount in controversy is met, defendant is not charged with notice of removability 22 absent the receipt of a paper indicating the amount demanded by the putative class as a whole.”) 23 In sum, the Court finds that because the Defendants’ assumptions as to the violation rates are 24 unreasonable, the Court rejects them and concludes that the Defendants have failed to meet their 25 burden of showing by preponderance of the evidence that the amount in controversy is over 26 $5,000,000. 27 / / / 28 / / / 1 III. Conclusion 2 For the foregoing reasons, Plaintiffs’ Request for Judicial Notice is GRANTED and 3 Plaintiffs’ Motion to Remand is GRANTED. This matter is remanded to the Los Angeles County 4 Superior Court forthwith. 5 6 IT IS SO ORDERED. 7 8 Dated: September 18, 2023 ___________________________________ 9 MAAME EWUSI-MENSAH FRIMPONG 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28