Maharaj v. Charter Communications, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEVANAN MAHARAJ, Case No. 20-cv-00064-BAS-LL

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO REMAND PROCEEDINGS TO STATE COURT 14 CHARTER COMMUNICATIONS, INC.,

15 Defendant. (ECF No. 56) 16 17 Defendant Charter Communications, Inc. removed this case from San Diego 18 County Superior Court on January 28, 2020, asserting federal jurisdiction exists under the 19 Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d) (“Notice of 20 Removal”). (ECF No. 1, Notice.) Plaintiff filed a motion to remand, arguing Defendant’s 21 Notice of Removal fails to show that CAFA’s amount-in-controversy requirement has 22 been satisfied (“Motion to Remand”). (ECF No. 56, Mot.; ECF No. 56–1, Mem.) 23 Defendant opposes (ECF No. 57, Opp’n) and Plaintiff replies (ECF No. 60, Reply). The 24 Court finds this Motion suitable for determination on the papers submitted and without 25 oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the reasons set forth 26 below, the Court DENIES Plaintiff’s Motion to Remand. (ECF No. 56.) 27 28 1 I. BACKGROUND 2 Defendant Charter Communications, Inc. employed Plaintiff Devanan Maharaj as a 3 nonexempt “Maintenance Technician” from approximately November 2000 until his 4 resignation in approximately November 2019. (Compl. ¶ 23).1 Plaintiff alleges that 5 Defendant denied him and employees the benefits of the California Labor Code and the 6 Industrial Welfare Commission (“IWC”) Wage Orders.2 Specifically, Plaintiff alleges 7 that Defendant failed to pay meal and rest period premiums; pay regular and overtime 8 wages; and provide accurate and itemized wage statements.3 (Id. ¶¶ 70–123.) Plaintiff 9 brings these claims on behalf of “[a]ll current and former nonexempt employees of 10 Defendant[] CHARTER COMMUNICATIONS, INC. who worked as a Maintenance 11 Technician in the State of California during any period at any time from November 5, 12 2015, through the present[]” (“Maintenance Technician Class”). (Id. ¶ 58.) 13 Plaintiff also claims that Defendant failed to pay him and other employees all 14 wages due upon separation of employment.4 (Compl. ¶¶ 130–46.) He brings that claim 15 on behalf of a subclass comprised of “[a]ll members of the Maintenance Technician 16 Class, whose employment with Defendant[] ended at any time from November 5, 2016, 17 through the present[]” (“Waiting Time Penalties Subclass”).5 (Id. ¶ 59.) 18 19 1 Although the Complaint alleges that Plaintiff “is a current employee of Defendant[’s],” that 20 appears no longer to be the case. (Compl. ¶ 23.) John Fries, Defendant’s Vice President of HR 21 Technology, attests—and Plaintiff does not dispute—that Plaintiff resigned in or about November 2019 (“Fries Declaration”). (ECF No. 49-3, Fries Decl. ¶ 5.) 22 2 The IWC was enacted in 1913 “to regulate the wages, hours, and working conditions of various classes of workers to protect their health and welfare.” Home Depot U.S.A., Inc. v. Superior Court, 191 23 Cal. App. 4th 210, 216 (2010). 3 Therefore, Plaintiff alleges violations of California Labor Code §§ 226.7 and 512; 510, 1194, 24 and 1197; 558; and 226, respectively. 25 4 Plaintiff pursues this claim pursuant to California Labor Code §§ 201–03. 5 In addition, Plaintiff alleges that Defendant failed to pay waiting time wages and violated 26 California Business and Professions Code § 17200, et seq., and asserts a claim under the California Private Attorney General Act of 2004, Cal. Labor Code § 2699, et seq. (Compl. ¶¶ 124–29, 147–86.) 27 Because Defendant does not consider these causes of action in its amount-in-controversy estimate and because the Court finds there is no need to do so to determine that the amount in controversy exceeds $5 28 1 On March 17, 2021, Defendant filed a Motion to Compel Arbitration and Stay 2 Proceedings (“Motion to Compel”). (ECF No. 49.) While that first-filed Motion was 3 pending, Plaintiff filed the instant Motion, challenging this Court’s jurisdiction and, thus, 4 its authority to rule on the Motion to Compel. (ECF No. 56.) 5 II. LEGAL STANDARD 6 The propriety of removal depends on whether the case originally could have been 7 filed in federal court. Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997) 8 (“Defendants generally may remove ‘any civil action brought in a State court in which 9 the [federal] district courts … have original jurisdiction.’” (quoting 28 U.S.C. § 10 1441(a))). The analysis of whether removal is warranted focuses on the pleadings “as of 11 the time the complaint is filed and removal is effected.” Strotek Corp. v. Air Transp. 12 Ass’n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002). 13 CAFA expressly extends “original jurisdiction to state-law claims in class actions 14 under relaxed diversity requirements.” Floyd v. Am. Honda Motor Co., Inc., 966 F.3d 15 1027, 1036 (9th Cir. 2020) (citing 28 U.S.C. § 1332(a)). While “no antiremoval 16 presumption attends cases invoking CAFA,” Dart Cherokee Basin Operating Co. v. 17 Owens, 574 U.S. 81, 89–91 (2014), “the burden of establishing removal jurisdiction 18 remains, as before, on the proponent of federal jurisdiction,” Abrego v. Dow Chem., 443 19 F.3d 676, 685 (9th Cir. 2006). CAFA confers federal jurisdiction over class actions 20 involving: (1) minimal diversity; (2) at least 100 putative members; and (3) over 21 $5,000,000 in controversy, inclusive of attorneys’ fees but exclusive of costs and interest. 22 28 U.S.C. § 1332(d)(2), (5). Class members’ claims may be aggregated to reach the 23 amount-in-controversy requirement. Biag v. King George – J&J Worldwide Servs. LLC, 24 No. 20-CV-307-BAS-DEB, 2020 WL 4201192, at * 3 (S.D. Cal. July 22, 2020). 25 A “defendant’s notice of removal need include only a plausible allegation that the 26 amount in controversy exceeds the jurisdictional threshold[.]” Dart Cherokee, 574 U.S. 27 at 89. However, where, as here, a plaintiff contests defendant’s asserted amount in 28 controversy, “evidence establishing the amount is required.” Id. at 90. “In such a case, 1 both sides submit proof and the court decides, by a preponderance of the evidence, 2 whether the amount-in-controversy requirement has been satisfied.” Id. at 82. The Ninth 3 Circuit has instructed that when a party relies on a chain of reasoning that includes 4 assumptions in order to approximate the amount in controversy, those assumptions 5 “cannot be pulled from thin air but need some reasonable ground underlying them.” 6 Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1199 (9th Cir. 2015) (“[A] defendant 7 cannot establish removal jurisdiction by mere speculation and conjecture, with 8 unreasonable assumptions.”). Rather, those assumptions must be predicated upon the 9 language in the complaint or based upon “evidence outside the complaint, including 10 affidavits or declarations, or other ‘summary-judgment-type evidence relevant to the 11 amount in controversy at the time of removal.’” Id. at 1197 (quoting Singer v. State 12 Farm Mut. Auto Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). 13 III. ANALYSIS 14 A. Primacy of Motion to Remand 15 As an initial matter, this Court finds it appropriate to rule on the Motion to Remand 16 despite Defendant’s having filed its Motion to Compel first. United States v. W.R. Grace, 17 526 F.3d 499, 509 (9th Cir. 2008) (en banc) (finding it well-established that district 18 courts “have inherent power to control their dockets”). Noting that Plaintiff brought this 19 Motion 15 months after removal and only once it moved to compel arbitration, Defendant 20 contends that this Motion is a dilatory tactic. (Opp’n 2.) However, a challenge to subject 21 matter jurisdiction can be raised at any time during a case and can neither be waived nor 22 forfeited. Fed. R. Civ. P. 12(h); Mashiri v. U.S. Dep’t of Educ., 724 F.3d 1028, 1031 (9th 23 Cir. 2013). Moreover, this Court must have subject matter jurisdiction to issue an order 24 respecting Defendant’s Motion to Compel. Vaden v. Discover Bank, 556 U.S. 49, 66 25 (2009) (holding that the FAA “does not enlarge federal-court jurisdiction” and, thus, a 26 district court must have jurisdiction to compel arbitration). Consequently, the Court must 27 address the merits of Plaintiff’s Motion to Remand before acting on Defendant’s Motion 28 to Compel. 1 B. Defendant’s Calculation of Amount in Controversy 2 Plaintiff does not dispute the numerosity requirement of CAFA has been met. And 3 although he contends in passing that Defendant fails to show minimum diversity (Mem. 4 2), Plaintiff makes no such substantive argument in his papers. Nor does he submit 5 evidence to refute the attestation of Defendant’s Human Resources Director, Valerie 6 Chandler (“Chandler Decl.”), that Defendant is incorporated in Delaware and maintains 7 its principal place of business in Connecticut, thus satisfying CAFA’s diversity 8 requirement (Notice, Ex. 3 (“Chandler Decl.”) ¶ 2, ECF No. 1-3). Accordingly, the sole 9 dispute at issue is whether Defendant has proven by a preponderance of the evidence 10 CAFA’s amount-in-controversy requirement. 11 Defendant’s amount-in-controversy calculation rests upon the Chandler 12 Declaration submitted alongside the Notice of Removal (ECF No. 1-3) and the 13 allegations in the Complaint (ECF No. 1-2). 14 Ms. Chandler states that during the putative class period, Defendant always 15 employed at least 400 nonexempt Maintenance Technicians in the State of California. 16 (Chandler Decl. ¶¶ 7–8.) According to Ms. Chandler, those employees earned an average 17 hourly rate of $27.00; “typically worked 49 out of the 52 weeks [each year] after taking 18 into account time not worked due to vacation, sickness or other leaves”; typically worked 19 “at least forty (40) hours per week”; and were paid on a bi-weekly basis. (Id. ¶¶ 6, 8, 10– 20 11.) Ms. Chandler further attests that from November 5, 2016 through the date of 21 removal, approximately 60 of those employees left Defendant’s employ. (Id. ¶ 9.) Ms. 22 Chandler states that those employees earned an elevated average hourly rate of $32.59. 23 (Id. ¶ 9.) 24 The Complaint alleges generally that Defendant engaged in a “systematic pattern 25 of Labor Code and IWC Wage Order violations… includ[ing] but [] not limited to”: 26 failing to pay meal and rest premiums; failing to pay regular and overtime wages; and 27 failing to provide accurate and itemized wage statements. (Compl. ¶ 5.) The Complaint 28 1 also alleges that Defendant systematically failed to pay Waiting Time Penalties Subclass 2 members all outstanding final wages. (Id. ¶¶ 5, 59.) 3 1. Unpaid Meal Period and Rest Period Claims 4 Plaintiff’s first and second causes of action are for damages on behalf of the 5 Maintenance Technician Class under Labor Code §§ 226.7 and 512 for failure to pay 6 meal and rest period premiums, respectively. Defendant calculates the amount placed 7 into controversy by both claims using the equation $27.00 per hour x 1 day per week x 8 147 workweeks6 x 400 Maintenance Technician Class members. Consequently, 9 Defendant approximates $1,587,600 in controversy for each claim, and $3,175,200.00 in 10 total. (Notice ¶¶ 30–36.) 11 2. Unpaid Regular and Overtime Wage Claims 12 Plaintiff’s third and fourth causes of action are for damages on behalf of the 13 Maintenance Technician Class under Labor Code §§ 510, 1194, and 1197 for failure to 14 pay regular and overtime wages, respectively. 15 To calculate regular wages, Defendant assumes a thirty-minute violation (the 16 length of a legally mandated meal period that was not given) every day for each class 17 member and used the formula $27.00 per hour x 0.5 hours per day x 5 days x 196 18 workweeks7 x 400 Maintenance Technician Class members. Defendant also assumes that 19 it committed an additional one-hour violation each week attributable to instances in 20 which Plaintiff alleges that he and other employees worked while off-duty but for which 21 they were not compensated. (See Compl. ¶ 107.) Defendant calculates unpaid regular 22

23 6 This figure represents the number of weeks Ms. Chandler attests employees worked each year (49 weeks) multiplied by the length of the statutory period applicable to claims of unpaid meal and rest 24 premiums (3 years). (Notice ¶ 44; Chandler Decl. ¶ 10.) The Notice of Removal errs by including in its 25 calculation all 52 weeks of each year despite Ms. Chandler’s attestation otherwise. Defendant repeats this error in calculating each claim for which which the number of workweeks is a relevant factor in the 26 formula used to determine the amount in controversy. Although the error is negligible, the Court corrects each such formula to reflect the number of workweeks identified in the Chandler Declaration. 27 7 This figure represents the number of weeks Ms. Chandler attests employees worked each year (49 weeks) multiplied by the length of the statutory period applicable to claims of unpaid minimum and 28 1 wages associated with that time by the equation of $27.00 per hour x 1 hour per week x 2 196 workweeks x 400 Maintenance Technician Class members. Accordingly, Defendant 3 estimates that the amount in controversy associated with Plaintiff’s unpaid regular wage 4 claim is $7,408,800.00. (Notice ¶ 51.) 5 With respect to unpaid overtime wages, Defendant assumes each class member 6 worked one hour of overtime each week while off-duty and calculated the amount placed 7 into controversy by that claim using a similar equation of ($27.00 per hour x 1.5 overtime 8 pay) x 1.0 hours per week x 196 workweeks x 400 Maintenance Technician Class 9 members. Accordingly, Defendant approximates that the amount in controversy 10 associated with Plaintiff’s unpaid overtime claim is $3,175,200.00. (Notice ¶ 49.) 11 3. Noncompliant Wage Statement Claim 12 The sixth cause of action is for damages and penalties on behalf of the 13 Maintenance Technician Class under Labor Code § 226 for failure to provide accurate 14 and itemized wage statements. Defendant assumes that Plaintiff seeks only penalties and 15 does not endeavor to estimate potential liability attributable to actual damages. To 16 calculate the amount in controversy, Defendant assumes that every wage statement it 17 issued to each class member during the one-year statutory period was deficient.8 18 According to Defendant, because its employees were paid bi-weekly, there were 26 pay 19 periods during the statutory period. (Chandler Decl. ¶ 8.) Violations under Labor Code § 20 226 are assessed at a $50 penalty for the first violation and a $100 penalty for each 21 subsequent violation, not exceeding an aggregate amount of $4,000 per employee. 22 Defendant estimates that the amount placed into controversy by this claim is 23 $1,020,000.00 but does not provide its calculus. Nevertheless, it is apparent to the Court 24 that Defendant reached that figure by the equation (($50 x 1 pay period) + ($100 x 25 pay 25 periods)) x 400 Maintenance Technician Class members. 26 27 8 It is well-settled under California law that a one-year statute of limitations governs if the 28 1 4. Unpaid Final Wage Claim 2 The seventh cause of action is for damages on behalf of the Waiting Time 3 Penalties Subclass under California Labor Code §§ 201–03 for failure to pay all 4 outstanding wages owed within 72 hours of employees’ separation from employment. 5 For each day it is in violation of those provisions—but not extending beyond 30 days— 6 an employer will be assessed a penalty equal to the employee’s wages. Cal. Labor Code 7 §§ 201–03. To calculate the amount in controversy associated with this claim, Defendant 8 assumes that it failed to pay each Waiting Time Penalties Subclass member his or her 9 outstanding wages within 30 days of separation from employment and uses the equation 10 of ($32.59 per hour x 8 hours) x 30 days x 60 Waiting Time Penalties Subclass members 11 to reach $496,926.00 in controversy. 12 5. Attorneys’ Fees 13 Plaintiff seeks an award for reasonable attorneys’ fees under California Labor 14 Code § 1194. Defendant assumes that if Plaintiff prevails, his attorney will be awarded 15 25% of the total winnings, as, according to Defendant, that percentage represents the 16 “benchmark” in common fund recovery suits. (Notice ¶ 56.) 17 Defendant offers the following valuation of Plaintiff’s claims and the total amount 18 placed into controversy by the Complaint: 19 Cause of Action Amount in Controversy 20 First COA – Unpaid Meal Period $1,587,600.00 21 Second COA – Unpaid Rest Period $1,587,600.00 22 Third COA – Unpaid Regular Wage: $5,292,000.00 (30-Minute Meal Period) 23 Third COA – Unpaid Regular Wage: $2,116,800.00 24 (1-Hour Off-Duty Period) Fourth COA – Unpaid Overtime Wage $3,175,200.00 25 26 Sixth COA – Wage Statement $1,020,000.00 27 Seventh COA – Unpaid Final Wage $469,296.00 28 Total $15,248,496.00 1 Attorneys’ Fees (25% Benchmark) $3,812,124.00 2 Total with Attorneys’ Fees $19,060,620.00 3 4 C. Whether the Amount in Controversy is Met 5 1. General Sufficiency of Evidence 6 Plaintiff first contends that this Court should reject Defendant’s calculations 7 because they are not supported by specific human resources data and business records. 8 (Mem. 5–6.) According to Plaintiff, Defendant is categorically prohibited from satisfying 9 its evidentiary burden through reliance upon Ms. Chandler’s attestations alone. 10 Plaintiff’s argument is at odds with well-settled law. “Affidavits and declarations serve 11 as sufficient evidentiary tools” from which a court may determine whether a defendant 12 has proven the amount in controversy exceeds $5,000,000 by a preponderance of the 13 evidence. Tajonar v. Echosphere, L.L.C., 14-CV-2732-LAB-RBB, 2015 WL 4064642, at 14 *3 (S.D. Cal. July 2, 2015); Bryant v. NCR Corp., 284 F. Supp. 3d 1147, 1151 (S.D. Cal. 15 2018) (same). “Defendant need not ‘produce business records setting forth the precise 16 number of employees in [the] putative class … and the precise calculation of damages 17 alleged to meet its burden regarding the amount in controversy.’” Bryant, 284 F. Supp. 18 3d at 1151 (quoting Long v. Destination Maternity Corp., 15-CV-2836-WQH-RBB, 2016 19 WL 1604968, at *6 (S.D. Cal. Apr. 21, 2016)); Muniz v. Pilot Travel Ctrs. LLC, No. 07- 20 cv-0325-FCD-EFB, 2007 WL 1302504, at *4–5 (E.D. Cal. May 1, 2007) (“There is no 21 obligation by defendant to support removal with production of extensive business records 22 or to prove or disprove liability and/or damages … at this premature (pre-certification 23 stage of the litigation) …. Rather it is defendant’s burden to produce underlying facts 24 showing only that it is more likely than not that the amount in controversy exceeds 25 $5,000,000[.]”) 26 Furthermore, the Court finds the Chandler Declaration admissible under the 27 Federal Rules of Evidence, as it lays adequate foundation for the employment 28 information she provides. See Hernandez v. Nuco2 Mgmt., LLC, No. 1:17-cv-01645- 1 LJO-JLT, 2018 WL 933506, at *5 (E.D. Cal. Feb. 16, 2018) (finding attestation of human 2 resources employee sufficient as an evidentiary matter and as having adequate 3 foundation). For instance, Ms. Chandler attests that in her capacity as a Human 4 Resources Director for Defendant she has “personal knowledge of the facts set forth in 5 [her] declaration” and/or “knowledge of such facts based on [her] review of 6 [Defendant’s] business records and files” of which she is a custodian. (Chandler Decl. ¶ 7 1.) Ms. Chandler’s personal knowledge and her knowledge based on her review of 8 Defendant’s business records to which she had access as part of her duties as one of 9 Defendant’s Human Resources Directors provides a sufficient foundation. See, e.g., 10 Hernandez, 2018 WL 933506, at *4–5 (sufficient foundation laid by a declarant attesting 11 to knowledge of business records based on personal review, stemming from job duties as 12 director for human resources); Cagel v. C&S Wholesale Grocers, Inc. No. 2:13-cv- 13 02134-MCE-KJN, 2014 WL 651923, at *1 (E.D. Cal. Feb. 19, 2014) (same). 14 2. The Amount Plaintiff’s Claims Place into Controversy 15 The Court observes that where, as here, a complaint contains multiple alleged 16 wage-and-hour claims each giving rise to a basis for recovery, courts in this district 17 typically assess whether the party seeking to invoke federal jurisdiction has shown by a 18 preponderance of the evidence the amount placed into controversy by each claim or basis 19 for recovery and then determine whether, in the aggregate, that amount exceeds $5 20 million. See, e.g., Biag, 2020 WL 4201192, at * 1; Tajonar, 2015 WL 4064642, at *1; 21 Vilitchai v. Ametek Programmable Power, Inc., No. 3:15-CV-1957-L (BLM), 2017 WL 22 875595, at *3 (S.D. Cal. Mar. 6, 2017); Olson v. Becton, Dickinson & Co., No. 19-CV- 23 865-MMA-BGS, 2019 WL 4673329, at *4 (S.D. Cal. Sept. 25, 2019). The Court adopts 24 that approach here. 25 i. Unpaid Meal Period and Rest Period Claims 26 Plaintiff principally argues that the Court should reject Defendant’s calculation of 27 the amount placed into controversy by the first and second causes (and, for that matter, 28 1 all the other causes of action alleged) because Defendant grossly exaggerates the size of 2 the Maintenance Technician Class. 3 Specifically, Plaintiff relies on the “Maintenance Technician Report” appended to 4 the declaration of his attorney, David Lin, Esq., which Mr. Lin attests establishes that 5 Defendant employed 641 nonexempt Maintenance Technicians in California during the 6 putative class period and, moreover, that only 149 of those members affirmatively opted 7 out of an arbitration agreement with Defendant that assertedly contains a class-action 8 waiver.9 (See Mot., Ex. 2 (“Lin Decl.”) ¶ 8, ECF No. 56-2; id., Ex. A (Maintenance 9 Technician Report).) Plaintiff contends that only those 149 employees retaining their 10 class-action rights against Defendant should be considered in determining the amount in 11 controversy. (Mem. 6–7.) 12 “The amount in controversy is measured by Plaintiff’s claims, not Defendant’s 13 defenses.” Murphy v. Am. Gen. Life Ins. Co., No. ED CV14-00486 JAK (SPx), 2014 WL 14 3417606, at *3 (C.D. Cal. July 1, 2014). “The inability of plaintiff to recover an amount 15 adequate to give the court jurisdiction does not … oust jurisdiction. Nor does the fact 16 that the complaint discloses the existence of a valid defense to the claim.” St. Paul 17 Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938); see Theis Res. Inc. v. 18 Brown & Bain, 400 F.3d 659, 664 (9th Cir. 2005) (holding that the amount in controversy 19 is not bound by a zero-dollar arbitration award, but rather is the amount sought to 20 recover). “[A]ffirmative defenses, counterclaims, and potential offsets may not be 21 invoked to demonstrate the amount in controversy is actually less than the jurisdictional 22 23 9 The Maintenance Technician Report was produced by Defendant in discovery. It is a 24 spreadsheet that lists, by an “assigned employee correspondence number,” each nonexempt Maintenance 25 Technician [employed by Defendant in California]” since November 5, 2015. (Lin Decl. ¶ 7.) There are 641 rows with 641 “assigned employee correspondence numbers. (Maintenance Technician Report.) 26 The Report contains a column that indicates whether each employee accepted or “opted out of Solution Channel”—Defendant’s employee dispute resolution program—that includes an arbitration agreement 27 with a class action waiver. (Id. ¶¶ 7–8.) The Report shows 149 employees affirmatively opted out while another 17 employees took no action. (Maintenance Technician Report.) The remaining 475 employees 28 1 minimum.” Inmexti, S. de R.L. de C.V. v. TACNA Servs., Inc., No. 12-cv-1379-BTM- 2 JMA, 2012 WL 3867325, at *4 (S.D. Cal. Sept. 6, 2012) (citation omitted). 3 Here, Plaintiff invokes Defendant’s potential affirmative defense of waiver to 4 diminute the size of the Maintenance Technician Class and, thus, the amount placed into 5 controversy by each claim. He may not do so for courts “do[]not reach [the] merits of 6 [d]efendants’ potential defenses without first determining jurisdiction.” Francisco v. 7 Emeritus Corp., No. CV 17-02871-BRO (SSx), 2017 WL 2541401, at *8 (C.D. Cal. June 8 12, 2017) (rejecting plaintiff’s argument to diminish the size of the putative class for the 9 purpose of determining the amount in controversy based on the existence of arbitration 10 agreements that would preclude certain class members from participating). Accordingly, 11 the qualifications for membership should be adjudged by the class action allegations in 12 the Complaint, unabridged by any affirmative defense. See TACNA Servs., Inc., 2012 13 WL 3867325, at *4. 14 The Court also observes that Plaintiff seeks to represent “[a]ll current and former 15 nonexempt employees of Defendant[] CHARTER COMMUNICATIONS, INC. who 16 worked as a Maintenance Technician in the State of California during any period at any 17 time from November 5, 2015, through the present.” (Compl. ¶ 58 (emphasis added).) 18 The Court refuses to graft into the Complaint exclusionary language that would limit the 19 scope of the class for reasons that are not even apparent on the face of the complaint. 20 Broadway Grill, Inc. v. Visa Inc., 856 F.3d 1274 (9th Cir. 2017) (holding that plaintiff 21 may not “amend their class definition” after removal “in such a way that would alter the 22 jurisdictional analysis”); see also Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939) 23 (holding whether remand is proper must be ascertained based on the pleadings at the time 24 of removal). 25 In so holding, the Court finds Defendant’s assumption in its calculations that it 26 employed 400 Maintenance Technician Class members at any given time is both 27 supported by Ms. Chandler’s attestations (Chandler Decl. ¶¶ 6–8), as well as the 28 Maintenance Technician Report, which reflects that Defendant employed a total of 641 1 nonexempt Maintenance Technicians in the State of California during the period relevant 2 to this Complaint. 3 Plaintiff also challenges—with respect to each cause of action, including the first 4 and second causes—Defendant’s assumption that its employees worked 49 weeks per 5 year. (Mem. 6–7.) To rebut Ms. Chandler’s attestation, Plaintiff relies on extrinsic yet 6 anecdotal evidence: his own timekeeping records from November 8, 2015, through 7 January 31, 2019, which assertedly reflect that he worked only 103 weeks during that 8 period. (Lin Decl., Ex. 3; id. ¶ 10.) Plaintiff does not explain why his own experience 9 would be indicative of the other at least 399 Maintenance Technicians employed at any 10 given time during the putative class period. This omission is particularly problematic 11 given that Plaintiff acknowledges he “spent a portion of the class period on leave[.]” 12 (Mem. 7.) Indeed, Plaintiff does not dispute that he “took a leave of absence from on or 13 about January 9, 2018 until on or about May 21, 2018” and again on or about “August 2, 14 2018 and remained on leave until the end of his employment in November 2019.” (Fries 15 Decl. ¶ 5.) 16 Although Defendant did not calculate the number of workweeks using the specific 17 number of weeks each class member worked, and although the calculation does not 18 account for every type of leave (i.e., unpaid leave under the Family Medical Leave Act, 19 for military service, or jury duty), the workweek approximation is neither vague nor 20 unsupported. “[A]ccounting for applicable sick and vacation time,” as Defendant does 21 here, “is a reasonable and conservative method to calculate workweeks.” Hernandez, 22 2018 WL 933506, at *5.10 23 Finally, Plaintiff argues that Defendant uses an unsupported violation rate to 24 approximate the amount in controversy respecting the first and second causes of action. 25 (Mem. 7–9.) “A defendant ‘is not required to comb through its records to identify and 26 10 Having addressed and rejected Plaintiff’s arguments that Defendant’s calculation is deficient 27 because (1) it inflates the size of the Maintenance Technician Class and (2) its estimate of the number of weeks employees worked each year is unsupported, the Court will not repeat and address those same 28 1 calculate the exact frequency of violations.’” Tajonar, 2015 WL 4064642, at *3 (quoting 2 Oda v. Gucci Am., Nos. 2:14-CV-7468-SVW (JPRx), 2:14-CV-7469-SVW (JPRx), 2015 3 WL 93335, at *5 (C.D. Cal. Jan. 7, 2015)). Nevertheless, a removing defendant may not 4 “simply pull violation rates out of thin air[.]” Toribio, 2019 WL 4254935, at *3 (citing 5 Ibarra, 775 F.3d at 1193). In determining which violation rate to use, parties make 6 assumptions based on the allegations and language in the complaint. Ibarra, 775 F.3d at 7 1198; see Roth v. Comerica Bank, 799 F. Supp. 2d 1107, 1117 (C.D. Cal. 2010) (“In 8 measuring the amount in controversy, a court must assume that the allegations of the 9 complaint are true and that a jury will return a verdict for plaintiff on all claims made in 10 the complaint.”). 11 “District courts have found that violation rates of 25% to 60% can be reasonably 12 assumed as a matter of law based on ‘pattern and practice’ or ‘policy and practice 13 allegation[s].” Avila v. Rue 21, Inc., 432 F. Supp. 3d 1175, 1189 (E.D. Cal. 2020); see 14 also Olson, 2019 WL 4673329, at *4 (finding 25% violation rate to be appropriate based 15 on plaintiff’s “pattern and practice” allegations); Elizarraz v. United Rentals, Inc., No. 16 2:18-CV-09533-ODW (JC), 2019 WL 1553664, at *3–4 (C.D. Cal. Apr. 9, 2019) (using 17 50% violation rate for meal period claim and 30% violation rate for rest period claim); 18 Bryant, 284 F. Supp. 3d at 1151 (using 60% violation rate for the meal period claim and 19 30% violation rate for rest period claim); Alvarez v. Off. Depot, Inc., No. CV-17-7220- 20 PSG (JPRx), 2017 WL 5952181, at *3 (C.D. Cal. Nov. 30, 2017) (using 60% violation 21 rate); Oda, 2015 WL 93335, at *4 (using 50% violation rate). Where allegations in the 22 complaint instead refer to systematic, regular, or consistent violations, it is reasonable to 23 assume a 20% violation rate (or one violation per week). Sanchez v. Cap. Contractors, 24 No. C-14-2622-MMC, 2014 WL 4773961, at *3 (N.D. Cal. Sept. 22, 2014); Biag, 2020 25 WL 4201192, at *7. 26 As stated above, the Complaint alleges that Defendant’s purported violations of the 27 California Labor Code and IWC Wage Order constituted a “systematic pattern.” (Compl. 28 ¶ 5.) Moreover, with respect to Plaintiff’s first and second causes of action in particular, 1 the Complaint alleges that Defendant had a “common policy … and practice” of failing to 2 compensate Plaintiff and the Maintenance Technician Class with meal and rest period 3 premiums. (Compl. ¶¶ 88, 98.) Defendant’s assumption that it failed to pay one meal 4 and one rest period premium each week fits squarely within the allegations of the 5 Complaint. Olson, 2019 WL 4673329, at *4 (finding reasonable a higher 25% violation 6 rate for “pattern and practice” allegations). 7 Accordingly, the Court finds Defendant has shown by a preponderance of the 8 evidence that Plaintiff’s first and second causes of action place in controversy 9 $1,587,600.00 each, and $3,175,200.00 total. 10 ii. Unpaid Regular Wage Claim 11 Plaintiff asserts that the violation rates Defendant assumed to approximate the 12 amount placed into controversy by Plaintiff’s third cause of action are egregiously high. 13 As explained above, Plaintiff alleges that Defendant failed to compensate him and 14 members of the Maintenance Technician Class for two categories of uncompensated 15 time: (1) pre- and post-shift work and (2) the 30-minute meal periods through which 16 Plaintiff and other employees worked. 17 With respect to the first category, Defendant’s calculation assumes that Plaintiff 18 and class members each performed one hour of work each week while technically off- 19 duty. In addition to a “systematic pattern” of wage-and-hour violations, the Complaint 20 alleges Plaintiff and class members “were required to monitor their phones and respond 21 to phone calls from supervisors and/or the regional operations center regarding work- 22 related issues at all times.” (Compl. ¶ 107.) The “at all times” language used in the 23 Complaint is analogous to other terms typically used in the wage-and-hour litigation 24 context like “systematic, continuous, and regularly,” which supports an assumption of 25 one hour of uncompensated regular time per week. Mackall v. Healthsource Glob. 26 Staffing, Inc., No. 16-CV-03810-WHO, 2016 WL 4579099, at *4 (N.D. Cal. Sept. 2, 27 2016). Accordingly, the Court finds that, to the extent Plaintiff’s claim for unpaid regular 28 1 wages is based upon uncompensated, off-duty work, Defendant has shown by a 2 preponderance of the evidence that the amount placed in controversy is $2,116,800.00. 3 With respect to the second category of time, the Court finds Defendant’s 4 assumption of a 100% violation rate both unsupported and incongruous with its other 5 assumptions. The Complaint alleges that Plaintiff and the Maintenance Technician Class 6 “regularly remained on duty during their 30-minute meal periods and were not 7 compensated minimum wages for this time.” (Compl. ¶ 107 (emphasis added).) This 8 type of language supports a 20% violation rate. See Sanchez, 2014 WL 4773961, at *3 9 Furthermore, a 20% violation rate is consistent with Defendant’s assumptions respecting 10 Plaintiff’s unpaid meal premium violations. See supra Sec. IV.C.i. Using a 20% 11 violation rate, Defendant has shown by a preponderance of the evidence that the amount 12 placed in controversy by this branch of Plaintiff’s claim for unpaid regular wages is 13 $1,058,400.00.11 14 iii. Unpaid Overtime Wage Claim 15 Plaintiff again challenges the violation rate Defendant assumes to calculate the 16 amount placed in controversy by the unpaid overtime wages claim. As stated above, the 17 language of the Complaint generally alleges that Defendant “systematically” violated 18 wage-and-hour provisions of the California Labor Code and IWC Wage Order. (Compl. 19 ¶ 5.) The Complaint also specifically alleges that Plaintiff and Maintenance Technician 20 Class members “regularly received phone call[s] on their personal cell phones while off 21 the clock from Defendant[] and other co-workers regarding work-related issues such as 22 scheduling or customer complaints and were not compensated overtime wages for this 23 time.” (Compl. ¶ 118.) “Where, as here, a proposed class includes all employees during 24 the class period, and the plaintiff pleads that an employer has a regular or consistent 25 practice of violating employment laws that harmed each class member, such an allegation 26 11 The Court observes that the amount-in-controversy requirement is satisfied by the amount 27 placed into controversy by just Plaintiff’s first, second, and third causes of action. However, for completeness, the Court assesses whether Defendant satisfied its evidentiary burden for the remaining 28 1 supports a defendant’s assumption that every employee experienced at least one violation 2 once per week,” which is precisely what Defendant’s calculation assumes here. Arreola 3 v. Finish Line, No. 14-CV-03339-LJK, 2014 WL 6982571, at *4 (N.D. Cal. Dec. 9, 4 2014). 5 Plaintiff also argues that Defendant’s calculations respecting the unpaid overtime 6 wage claim “double-count” time already assigned to Plaintiff’s unpaid regular wage 7 claim. (Mem. 10.) Defendant contends it has not “double-counted” wage violations, and 8 that “[b]y seeking each type of wage, [Plaintiff] is putting their recovery into the amount 9 in controversy.” (Opp’n 14.) This Court agrees with Defendant. Because Plaintiff 10 “included separate claims for both failure to pay minimum wages and failure to pay 11 overtime, [Defendant] properly assumed one type of each violation per week.” Soto v. 12 Greif Packaging LLC, No. SACV-17-2104-JVS (JDEx), 2018 WL 1224425, at *4 (C.D. 13 Cal. Mar. 8, 2018) (citing Oda, 2015 WL 93335, at *5). Moreover, as explained above, 14 the language in the Complaint supports the assumed violation rate. (See Compl. ¶ 5.) 15 Accordingly, the Court finds Defendant has shown by a preponderance of the 16 evidence that Plaintiff’s fourth cause of action places in controversy $3,175,200.00. 17 iv. Noncompliant Wage Statement Claim 18 Plaintiff contends that it is unreasonable for Defendant to estimate that each wage 19 statement provided to each Maintenance Technician Class member during the one-year 20 statutory period was deficient. (Mem. 11–12.) The Complaint alleges that Defendant 21 failed to provide Plaintiff and Maintenance Technician Class members “with each wage 22 payment an accurate wage statement showing, among other things, the inclusive dates of 23 the period for which the employee is paid, the total regular and overtime hours worked 24 during the pay period, the corresponding gross and net wages earned, all applicable 25 hourly rates and the corresponding number of hours worked at each hourly rate.” 26 (Compl. ¶ 135 (emphasis added).) Defendant interprets “each” to mean that Plaintiff 27 alleges Defendant provided deficient wage statements to all members “across all pay 28 1 periods.” (Opp’n 16.) Plaintiff argues that interpretation is unfounded based on the 2 Complaint’s allegations. (Reply 6.) 3 Other courts have instructed that wage statement claims must be assessed in the 4 context of the other wage-and-hour violations alleged in a complaint. See, e.g., 5 Altamirano v. Shaw Indus., Inc., No. C-13-0939-EMC, 2013 WL 2950600, at *11 (N.D. 6 Cal. June 14, 2013). The Court finds this approach persuasive, particularly given that 7 Plaintiff alleges Defendant “systematically” failed to pay Plaintiff and Maintenance 8 Technician Class members with meal- and rest-period premiums and to compensate them 9 with all regular and overtime wages. (Compl. ¶ 5.) Because of the pervasiveness of 10 these allegations, “it is reasonable to assume that each putative class member suffered at 11 least one violation during any given pay period, resulting in an inaccurate wage 12 statement.” Id.; Gipson v. Champion Home Builders, No. 1:20-CV-00392-DAD-SKO, 13 2020 WL 4048503, at *8 (E.D. Cal. July 20, 2020). Accordingly, the Court agrees that 14 Defendant’s assumption regarding the frequency of wage statement violations is 15 reasonable and, thus, finds that Defendant has shown by a preponderance of the evidence 16 that Plaintiff’s sixth cause of action places in controversy $1,020,000.00. 17 v. Unpaid Final Wage Claim 18 Plaintiff argues, inter alia, that Defendant assumes based on nothing that it failed 19 to pay each Waiting Time Penalties Subclass members their outstanding wages for the 20 full 30-day statutory period. (Mem. 12.) Defendant submits no proof that would enable 21 the Court to probe this assumption. Moreover, the nexus between the allegations in the 22 Complaint and Defendant’s assumption that all Waiting Time Penalties Subclass 23 members are still owed outstanding wages is too attenuated. (See Compl. ¶¶ 143–44.) 24 Moreover, Defendant fails to provide any proof justifying the elevated $32.59 25 hourly rate applicable only to Waiting Time Penalties Subclass members. Indeed, 26 according to Ms. Chandler’s attestations, the method by which she calculated the hourly 27 rate for the Class and Subclass was identical: to reach both rates, Ms. Chandler weighed 28 the hourly rates of pay “for the non-exempt employees known to Charter at the time of 1 [the Notice of Removal.]” (See Chandler Decl. ¶¶ 6 n.1, 9 n.2.) Yet the Chandler 2 Declaration does not provide any conceivable basis to support how she determined the 3 Subclass’s hourly rate to exceed the Class’s by over $5.00. Accordingly, Defendant fails 4 to show by a preponderance the amount placed into controversy by the fifth cause of 5 action. 6 3. Attorneys’ Fees 7 Defendant asks the Court to use the percentage-of-recovery method to calculate the 8 attorneys’ fees in controversy. (Notice ¶¶ 55–56.) Citing, inter alia, the Ninth Circuit’s 9 decision in Paul, Johnson, Alston & Hunt v. Graulty, Defendant asserts that the 10 attorneys’ fees in controversy here should be assessed at a rate of 25%. 886 F.3d 268, 11 273 (9th Cir. 1989) (“We note with approval that one court has concluded that the 12 “’benchmark’ percentage for the fee award should be 25 percent.”). Plaintiff contends 13 that Defendant has failed to carry its burden of showing that the 25% benchmark is 14 applicable here. The Court agrees. 15 Defendant simply asks the Court to adopt the 25 percent benchmark—an invitation 16 the Ninth Circuit flatly rejected in Fritsch v. Swift Transportation Co. of Arizona, LLC, 17 899 F.3d 785, 794 (9th Cir. 2018). It submits no proof supporting application of that 18 benchmark here. Accordingly, Defendant fails to meet its burden. See, e.g., Akana v. 19 Estee Lauder Inc., No. LA CV19-00806, 2019 WL 2225231, at *8 (C.D. Cal. May 23, 20 2019) (refusing to hold that 25 percent of total recovery was reasonable estimate of 21 plaintiff’s potential attorneys’ fees in wage and hour class action where defendant did not 22 provide other evidence). 23 C. Preponderance of the Evidence 24 Defendant has proven by a preponderance the amount placed into controversy by 25 Plaintiff’s claims for unpaid meal and rest periods, unpaid regular and overtime wages, 26 and noncompliant wage statements exceeds $5,000,000.00, as set out below. 27 28 !

4 Third COA — Unpaid Regular Wage: $1,058,400.00 eaten 6 Third COA — Unpaid Regular Wage: $2,116,800.00 Foor

11 12 Because Defendant has met its burden of establishing federal subject matter over 13 || this putative class action pursuant to CAFA, Plaintiff's Motion to Remand is denied. 14 lltv, CONCLUSION 15 For the reasons set forth above, the Court finds that it has subject matter 16 jurisdiction over this action pursuant to CAFA. Accordingly, the Court DENIES 17 || Plaintiffs Motion to Remand (ECF No. 56). 18 IT IS SO ORDERED. 19 , 20 || DATED: September 29, 2021 (if WLAA (Hypha st 21 United States District Judge 22 23 24 25 26 27 28 ~I0-