1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMMIR MORENO, Case No.: 3:25-cv-1706-CAB-JLB
12 Plaintiff, ORDER GRANTING MOTION TO 13 v. REMAND
14 NISSAN NORTH AMERICA, INC., and [Doc. No. 2] DOES 1–20, 15 Defendants. 16
18 19 20 On May 8, 2025, Plaintiff Jammir Moreno (“Plaintiff”) sued Defendant Nissan 21 North America, Inc. (“Defendant”) under the Song-Beverly Act, Cal. Civ. Code §§ 1790- 22 1795.8. [Doc. No. 1-2 at 3–10 (“Compl.”).] On July 3, 2025, Defendant filed a notice of 23 removal. [Doc. No. 1 (“NOR”).] On August 13, 2025, Plaintiff responded with the instant 24 motion to remand. [Doc. No. 2.] Pursuant to CivLR 7.1(d)(1), the Court finds the motion 25 suitable for submission on the papers without oral argument. For the reasons below, the 26 Court GRANTS Plaintiff’s motion to remand. 27 /// 28 /// 1 I. BACKGROUND 2 Plaintiff purchased a used 2023 Nissan Rogue (“Vehicle”) from Defendant on 3 July 6, 2024, for $48,452.50. [Compl. ¶ 5; NOR at 3.] On at least five separate occasions 4 over nearly one year, Plaintiff allegedly presented the Vehicle to Defendant to fix issues 5 including the HVAC vents producing abnormal noises, a loose driver grip handle, a loose 6 pillar finisher assembly, a malfunctioning infotainment system, inoperable steering wheel 7 controls, and more. [Compl. ¶¶ 10–11.] Plaintiff alleges that Defendant sold him a 8 defective vehicle and breached the implied and express warranties of merchantability of 9 California’s Song-Beverly Act. [Id. at ¶¶ 6–9.] 10 Defendant removed the case based on diversity jurisdiction, asserting diversity of 11 citizenship and an amount in controversy exceeding $75,000 when accounting for 12 Plaintiff’s potential restitution, civil penalty, and attorney fees recoverable under the Song- 13 Beverly Act. [NOR at 3.] Plaintiff argues that Defendant’s estimate of the amount in 14 controversy is overly speculative and that the principles of comity “weigh heavily in favor 15 of remand.” [Doc. No. 2-4 at 6.] 16 II. LEGAL STANDARD 17 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 18 Co. of Am., 511 U.S. 375, 377 (1994). Federal subject matter jurisdiction can be established 19 through federal question jurisdiction, see 28 U.S.C. § 1331, or diversity jurisdiction, see 20 28 U.S.C. § 1332. Under the latter, federal courts obtain “original jurisdiction of all civil 21 actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of 22 interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). 23 If a plaintiff files a case in state court that could have originally been filed in federal 24 court, the defendant may remove that case to federal court. 28 U.S.C. § 1441(a); see City 25 of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). However, “[i]f at any time 26 before final judgment it appears that the district court lacks subject matter jurisdiction, the 27 case shall be remanded.” 28 U.S.C. § 1447(c); Bruns v. NCUA, 122 F.3d 1251, 1257 (9th 28 1 Cir. 1997) (holding that remand for lack of subject matter jurisdiction “is mandatory, not 2 discretionary”). 3 Defendant, as the removing party, “has the burden to prove, by a preponderance of 4 the evidence, that removal is proper.” Geographic Expeditions, Inc. v. Est. of Lhotka, 599 5 F.3d 1102, 1106–07 (9th Cir. 2010). Courts evaluate the existence of diversity 6 jurisdiction—including the amount in controversy—at the time of removal. Kenneth 7 Rothschild Tr. v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1000–01 (C.D. Cal. 8 2002). The district court may consider the allegations in both the complaint and notice of 9 removal, as well as any documents attached, in evaluating the propriety of the removal. 10 Canesco v. Ford Motor Co., 570 F. Supp. 3d 872, 882 (S.D. Cal. 2021). 11 III. DISCUSSION 12 “Where a plaintiff’s complaint does not specify the amount of damages being 13 sought, the removing defendant bears the burden of demonstrating by a preponderance of 14 the evidence that the amount in controversy requirement is satisfied.” Kenneth Rothschild 15 Tr. v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (citing Singer v. State Farm 16 Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997)). In his state court complaint, 17 Plaintiff does not provide a precise amount in controversy, stating only that it exceeds 18 $35,000. [Compl. ¶ 14.] Accordingly, Defendant “must submit summary-judgment-type 19 evidence to establish that the actual amount in controversy exceeds $75,000.” Kenneth 20 Rothschild Tr., 199 F. Supp. 2d at 1001 (internal quotation marks omitted). 21 Defendant argues that Plaintiff’s actual damages, restitution, reasonable attorney 22 fees, and awardable civil penalty collectively exceed $75,000. [NOR at 6.] Even if the 23 Court assumed Plaintiff was entitled to recovering the full Vehicle purchase price of 24 $48,4521 and reasonable attorney fees of $5,000 (as Defendant suggests), Defendant would 25
26 1 To be sure, Defendant noting that the purchase price was $48,452 does not establish that amount as the 27 actual damages or restitution for amount in controversy purposes. Indeed, “a plaintiff’s recovery is limited to the actual payment amount to the seller” and is “reduced to account for any use by plaintiff prior to the 28 1 need to show that an additional $21,500 (approximately) is in controversy. Defendant 2 contends that amount will be reached due to civil penalties, but Defendant fails to establish 3 that the “civil penalty is more likely than not to be awarded here.” Castillo v. FCA USA, 4 LLC, No. 3:19-CV-00151-CAB-MDD, 2019 WL 6607006, at *2 (S.D. Cal. Dec. 5, 2019); 5 see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (holding 6 that evidence must show that it is more likely than not that the amount in controversy is 7 satisfied). 8 “The amount in controversy for diversity jurisdiction may include punitive damages 9 if recoverable under state law.” Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004, 10 1009 (N.D. Cal. 2002) (citations omitted). While the Song-Beverly Act does not expressly 11 provide for punitive damages, it does include a civil penalty not to exceed two times the 12 actual damages if Defendant willfully violated the act. See Ortega v. Toyota Motor Sales, 13 USA, Inc., 572 F. Supp. 2d 1218, 1221 (S.D. Cal. 2008); Cal. Civ. Code § 1794(c).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMMIR MORENO, Case No.: 3:25-cv-1706-CAB-JLB
12 Plaintiff, ORDER GRANTING MOTION TO 13 v. REMAND
14 NISSAN NORTH AMERICA, INC., and [Doc. No. 2] DOES 1–20, 15 Defendants. 16
18 19 20 On May 8, 2025, Plaintiff Jammir Moreno (“Plaintiff”) sued Defendant Nissan 21 North America, Inc. (“Defendant”) under the Song-Beverly Act, Cal. Civ. Code §§ 1790- 22 1795.8. [Doc. No. 1-2 at 3–10 (“Compl.”).] On July 3, 2025, Defendant filed a notice of 23 removal. [Doc. No. 1 (“NOR”).] On August 13, 2025, Plaintiff responded with the instant 24 motion to remand. [Doc. No. 2.] Pursuant to CivLR 7.1(d)(1), the Court finds the motion 25 suitable for submission on the papers without oral argument. For the reasons below, the 26 Court GRANTS Plaintiff’s motion to remand. 27 /// 28 /// 1 I. BACKGROUND 2 Plaintiff purchased a used 2023 Nissan Rogue (“Vehicle”) from Defendant on 3 July 6, 2024, for $48,452.50. [Compl. ¶ 5; NOR at 3.] On at least five separate occasions 4 over nearly one year, Plaintiff allegedly presented the Vehicle to Defendant to fix issues 5 including the HVAC vents producing abnormal noises, a loose driver grip handle, a loose 6 pillar finisher assembly, a malfunctioning infotainment system, inoperable steering wheel 7 controls, and more. [Compl. ¶¶ 10–11.] Plaintiff alleges that Defendant sold him a 8 defective vehicle and breached the implied and express warranties of merchantability of 9 California’s Song-Beverly Act. [Id. at ¶¶ 6–9.] 10 Defendant removed the case based on diversity jurisdiction, asserting diversity of 11 citizenship and an amount in controversy exceeding $75,000 when accounting for 12 Plaintiff’s potential restitution, civil penalty, and attorney fees recoverable under the Song- 13 Beverly Act. [NOR at 3.] Plaintiff argues that Defendant’s estimate of the amount in 14 controversy is overly speculative and that the principles of comity “weigh heavily in favor 15 of remand.” [Doc. No. 2-4 at 6.] 16 II. LEGAL STANDARD 17 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 18 Co. of Am., 511 U.S. 375, 377 (1994). Federal subject matter jurisdiction can be established 19 through federal question jurisdiction, see 28 U.S.C. § 1331, or diversity jurisdiction, see 20 28 U.S.C. § 1332. Under the latter, federal courts obtain “original jurisdiction of all civil 21 actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of 22 interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). 23 If a plaintiff files a case in state court that could have originally been filed in federal 24 court, the defendant may remove that case to federal court. 28 U.S.C. § 1441(a); see City 25 of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). However, “[i]f at any time 26 before final judgment it appears that the district court lacks subject matter jurisdiction, the 27 case shall be remanded.” 28 U.S.C. § 1447(c); Bruns v. NCUA, 122 F.3d 1251, 1257 (9th 28 1 Cir. 1997) (holding that remand for lack of subject matter jurisdiction “is mandatory, not 2 discretionary”). 3 Defendant, as the removing party, “has the burden to prove, by a preponderance of 4 the evidence, that removal is proper.” Geographic Expeditions, Inc. v. Est. of Lhotka, 599 5 F.3d 1102, 1106–07 (9th Cir. 2010). Courts evaluate the existence of diversity 6 jurisdiction—including the amount in controversy—at the time of removal. Kenneth 7 Rothschild Tr. v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1000–01 (C.D. Cal. 8 2002). The district court may consider the allegations in both the complaint and notice of 9 removal, as well as any documents attached, in evaluating the propriety of the removal. 10 Canesco v. Ford Motor Co., 570 F. Supp. 3d 872, 882 (S.D. Cal. 2021). 11 III. DISCUSSION 12 “Where a plaintiff’s complaint does not specify the amount of damages being 13 sought, the removing defendant bears the burden of demonstrating by a preponderance of 14 the evidence that the amount in controversy requirement is satisfied.” Kenneth Rothschild 15 Tr. v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (citing Singer v. State Farm 16 Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997)). In his state court complaint, 17 Plaintiff does not provide a precise amount in controversy, stating only that it exceeds 18 $35,000. [Compl. ¶ 14.] Accordingly, Defendant “must submit summary-judgment-type 19 evidence to establish that the actual amount in controversy exceeds $75,000.” Kenneth 20 Rothschild Tr., 199 F. Supp. 2d at 1001 (internal quotation marks omitted). 21 Defendant argues that Plaintiff’s actual damages, restitution, reasonable attorney 22 fees, and awardable civil penalty collectively exceed $75,000. [NOR at 6.] Even if the 23 Court assumed Plaintiff was entitled to recovering the full Vehicle purchase price of 24 $48,4521 and reasonable attorney fees of $5,000 (as Defendant suggests), Defendant would 25
26 1 To be sure, Defendant noting that the purchase price was $48,452 does not establish that amount as the 27 actual damages or restitution for amount in controversy purposes. Indeed, “a plaintiff’s recovery is limited to the actual payment amount to the seller” and is “reduced to account for any use by plaintiff prior to the 28 1 need to show that an additional $21,500 (approximately) is in controversy. Defendant 2 contends that amount will be reached due to civil penalties, but Defendant fails to establish 3 that the “civil penalty is more likely than not to be awarded here.” Castillo v. FCA USA, 4 LLC, No. 3:19-CV-00151-CAB-MDD, 2019 WL 6607006, at *2 (S.D. Cal. Dec. 5, 2019); 5 see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (holding 6 that evidence must show that it is more likely than not that the amount in controversy is 7 satisfied). 8 “The amount in controversy for diversity jurisdiction may include punitive damages 9 if recoverable under state law.” Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004, 10 1009 (N.D. Cal. 2002) (citations omitted). While the Song-Beverly Act does not expressly 11 provide for punitive damages, it does include a civil penalty not to exceed two times the 12 actual damages if Defendant willfully violated the act. See Ortega v. Toyota Motor Sales, 13 USA, Inc., 572 F. Supp. 2d 1218, 1221 (S.D. Cal. 2008); Cal. Civ. Code § 1794(c). As 14 both punitive damages and the Song-Beverly Act’s civil penalty have a “dual effect of 15 punishment and deterrence for defendants,” courts have treated the civil penalty as 16 equivalent to punitive damages. Brady, 243 F. Supp. 2d at 1009. 17 However, “[t]he civil penalty under [Cal. Civ.] Code § 1794(c) cannot simply be 18 assumed.” Castillo v. FCA USA, LLC, No. 3:19-CV-151-CAB-MDD, 2019 WL 6607006, 19 at *2 (S.D. Cal. Dec. 5, 2019). Defendant must “identify allegations justifying [the 20 penalty]” and “submit evidence of civil penalties awarded in analogous cases[.]” Castillo, 21 2019 WL 6607006, at *2; see also Zawaideh v. BMW of N. Am., LLC, No. 3:17-CV-2151- 22 23 24 994019, at *1 (C.D. Cal. Jan. 8, 2019). Moreover, the consumer’s purchase of nonmanufacturer add-ons 25 and service contracts is excluded. Cal. Civ. Code § 1793.2(d)(2)(B); Canesco, 570 F. Supp. 3d at 894. Despite the fact it is their burden to do so, Defendant does not consider any of the following in calculating 26 damages for amount in controversy purposes: (1) the deduction of use prior to the first repair even though Plaintiff used the vehicle for nearly one year, (2) Plaintiff’s purchase of thousands of dollars in optional 27 add-ons, and (3) that Plaintiff did not actually pay the full amount but financed the majority of the purchase. See Tokmakova v. Volkswagen Grp. of Am., Inc., No. 2:12-CV-04666-SJO-PJWx, 2012 WL 28 1 || W-KSC, 2018 WL 1805103, at * 3 (S.D. Cal. Apr. 17, 2018) . This is important given “the 2 ||high burden that must be met in order for a plaintiff even to be eligible for receipt of 3 || discretionary punitive damages.” Conrad Assocs. v. Hartford Acc. & Indem. Co., 994 F. 4 || Supp. 1196, 1201 (N.D. Cal. 1998). 5 Here, Defendant fails to identify any substantive allegations by Plaintiff that 6 || Defendant willfully violated the warranties of the Song-Beverly Act or cite any comparable 7 || cases that awarded civil penalties. See Zawaideh, 2018 WL 1805103, at *3 (“Defendant 8 || fails to identify which allegations in the Complaint would justify [a civil penalty]; nor does 9 Defendant submit evidence regarding the size of civil penalties awarded in analogous 10 ||cases.”). Instead, Defendant merely “point[s] out that the complaint seeks punitive 11 ||damages and that any damages awarded under such a claim could” satisfy the amount in 12 ||controversy. Herko v. FCA US, LLC, No. 19-CV-2057-JLS-WVG, 2019 WL 5587140, at 13 || *2 (S.D. Cal. Oct. 30, 2019); [Doc. No. 3 at 7.]. As such, the Court finds (1) that Defendant 14 || fails to carry their burden to satisfy the amount in controversy and (2) there is no diversity 15 || jurisdiction in this matter. 16 The Court declines to address Plaintiff's arguments regarding comity, citizenship, 17 timeliness as it finds remand 1s appropriate because the amount in controversy is less 18 || than $75,000. 19 IV. CONCLUSION 20 The Court finds that Defendant fails to establish the required amount in controversy, 21 thus diversity jurisdiction, by a preponderance of the evidence. Plaintiff's motion to 22 ||remand is GRANTED. 23 It is SO ORDERED.
25 Dated: October 21, 2025 Hon. Cathy Ann Bencivengo United States District Judge 27 28