Markely Lewis v. Arvato USA LLC

• Court: District Court, C.D. California
• Decided: May 28, 2025
• Docket: 5:24-cv-02693
• Status: Unknown

Opinion

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARKELY LEWIS, individually, and Case No. 5:24-cv-02693-AB-SHK on behalf of all others similarly situated, 11 ORDER GRANTING PLAINTIFF’S Plaintiffs, MOTION FOR REMAND and 12 DENYING DEFENDANT’S v. MOTION TO COMPEL 13 ARBITRATION ARVATO DIGITAL SERVICES, LLC; 14 and DOES 1 through 100, inclusive,

15 Defendants. 16

17 Plaintiff Markely Lewis (“Plaintiff”) filed a Complaint (“Compl.,” Dkt. No. 1, 18 Ex. A) in San Bernardino County Superior Court alleging that Defendant Arvato 19 Digital Services, LLC (“Defendant”) violated various California labor laws. Id. 20 Defendant removed the action pursuant to the Class Action Fairness Act (“CAFA”), 21 28 U.S.C. § 1332(d)(2). Now before the Court is Plaintiff’s Motion for Remand 22 (“Motion,” Dkt. No. 10). Defendant filed an opposition (“Opp’n,” Dkt. No. 14), and 23 Plaintiff filed a reply (Dkt. No. 15). The Court took the matter under submission on 24 February 19, 2025. Also before the Court is Defendant’s Motion to Compel 25 Arbitration (Dkt. No. 21) and a corresponding opposition and reply. For the following 26 reasons, the Court GRANTS Plaintiff’s Motion for Remand and DENIES 27 Defendant’s Motion to Compel Arbitration as moot. 28 1 I. BACKGROUND 2 Plaintiff filed this putative class action Complaint on September 18, 2024. See 3 Compl. The Complaint alleges the following eight causes of action against Defendant: 4 (1) Failure to Pay Minimum Wages; (2) Failure to Pay Overtime Wages; (3) Failure to 5 Provide Meal Periods; (4) Failure to Provide Rest Periods; (5) Failure to indemnify 6 Necessary Business Expenses; (6) Failure to Timely Pay Final Wages at Termination; 7 (7) Failure to Provide Accurate Itemized Wage Statements; and (8) Unfair Business 8 Practices. Compl. ¶¶ 30-94. The Complaint alleges that Plaintiff and the putative class 9 members were not paid all wages and expenses, provided meal and rest periods, 10 issued accurate wage statements, or timely paid wages at termination due to 11 Defendant’s policy and practice of noncompliance. Compl. ¶¶ 15-20. On November 12 20, 2024, Defendant removed the action to this Court under CAFA. See (Notice of 13 Removal (“NOR,”) Dkt. No. 1. Plaintiff subsequently filed this Motion. 14 II. LEGAL STANDARD 15 A. Removal 16 A defendant may remove a civil action filed in state court to federal court when 17 the federal district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). 18 “A suit may be removed to federal court under 28 U.S.C. § 1441(a) only if it could 19 have been brought there originally.” Sullivan v. First Affiliated Sec., Inc., 813 F.2d 20 1368, 1371 (9th Cir. 1987). 21 A removing defendant bears the burden of establishing federal jurisdiction. See 22 Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). To meet 23 this burden as to the amount in controversy, “a defendant’s notice of removal need 24 include only a plausible allegation that the amount in controversy exceeds the 25 jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 26 U.S. 81, 88 (2014) (citing 28 U.S.C. § 1446(c)(2)(B)). 27 Only “when the plaintiff contests, or the court questions, the defendant’s 28 allegation” must the defendant submit evidence to establish the amount in controversy 1 by a preponderance of the evidence. Id. at 89 (citing 28 U.S.C. § 1446(c)(2)(B)); see 2 Ibarra, 775 F.3d at 1195; Harris v. KM Industrial, Inc., 980 F.3d 694, 699 (9th Cir. 3 2020) (“When a plaintiff mounts a factual attack, the burden is on the defendant to 4 show, by a preponderance of the evidence, that the amount in controversy exceeds the 5 $5 million jurisdictional threshold.”). The Court should “treat the removal petition as 6 if it had been amended to include the relevant information contained in the later-filed 7 affidavits.” Willingham v. Morgan, 395 U.S. 402, 407 n.3 (1969); see also Cohn v. 8 Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) (“The district court did not err in 9 construing Petsmart’s opposition as an amendment to its notice of removal.”). The 10 plaintiff may submit evidence to the contrary. Ibarra, 775 F.3d at 1198 (citing Dart 11 Cherokee, 574 U.S. at 89). “The parties may submit evidence outside the complaint, 12 including affidavits or declarations, or other ‘summary-judgment-type evidence 13 relevant to the amount in controversy at the time of removal.’” Id. at 1197 (quoting 14 Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). Once 15 “both sides submit proof . . . the court then decides where the preponderance lies.” 16 Ibarra, 775 F.3d at 1198. “Under this system, a defendant cannot establish removal 17 jurisdiction by mere speculation and conjecture, with unreasonable assumptions.” Id. 18 at 1197. 19 B. Jurisdiction under Class Action Fairness Act (CAFA) 20 The Class Action Fairness Act (“CAFA”) gives federal courts jurisdiction over 21 specified class actions if (1) the parties are minimally diverse, (2) the putative class 22 has more than 100 members, and (3) and the aggregated amount in controversy 23 exceeds $5 million. 28 U.S.C § 1332(d)(2). “[N]o antiremoval presumption attends 24 cases invoking CAFA.” Bridewell-Sledge v. Blue Cross of Cal., 798 F.3d 923, 929 25 (9th Cir. 2015). In fact, “Congress passed CAFA with the ‘overall intent . . . to 26 strongly favor the exercise of federal diversity jurisdiction over class actions with 27 interstate ramifications.’” Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118, 1121 28 (9th Cir. 2017) (quoting S. Rep. No. 109 14, 35 (2005)). 1 III. DISCUSSION 2 Plaintiff argues that this action should be remanded to San Bernardino County 3 Superior Court because removal was untimely or because Defendant failed to show 4 the action meets CAFA’s amount-in-controversy requirement. Defendant opposes 5 both points. 6 a. Removal Was Timely 7 A notice of removal must “be filed within thirty days after the receipt by the 8 defendant, through service or otherwise, of a copy of the initial pleading setting forth 9 the claim for relief upon which such action or proceeding is based . . ." 28 U.S.C. § 10 1446(b). The United States Supreme Court construes § 1446(b) to mean that “a named 11 defendant's time to remove is triggered by simultaneous service of the summons and 12 complaint, or receipt of the complaint, 'through service or otherwise,' after and apart 13 from service of the summons, but not by mere receipt of the complaint unattended 14 by any formal service." Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 347- 15 48 (1999) (holding that, where defendant was faxed a courtesy copy of 16 a filed complaint, defendant's time to remove is not triggered) (emphasis added). Here, 17 Plaintiff argues that removal was untimely because Plaintiff notified Defendant of the 18 Complaint by email before executing formal service. Mot. at 7. This argument is 19 contrary to the holding in Murphy Bros. and unavailing because the “30-day removal 20 clock only starts ticking once the defendant has been served.” Casola v. Dexcom, Inc., 21 98 F.4th 947, 961 n.15 (9th Cir. 2024). 22 The California Code of Civil Procedure allows for five basic methods of 23 service, including service by mail with acknowledgment of receipt, but not including 24 email. See Cal. Civ. Proc. Code § 415.30. To execute service by email, a party must 25 obtain special court authorization. See Fabric Selection, Inc. v. Benedict's Goods, 26 LLC, No. CV 23-7168-JFW(BFMx), 2023 U.S. Dist. LEXIS 242208, at *3 (C.D. Cal. 27 Dec. 15, 2023) (declining to authorize email service). Service of a summons by mail is 28 “deemed complete on the date a written acknowledgment of receipt of summons is 1 executed, if such acknowledgment thereafter is returned to the sender.” Cal. Civ. Proc. 2 Code § 415.30(c). In the instant case, Defendant executed a written acknowledgment 3 of receipt of the mailed summons on November 20, 2024. See Declaration of Orlando 4 Arellano, Opp’n Ex. A (“Arellano Decl.”). Therefore, Defendant’s deadline to remove 5 the case was 30 days later: December 20, 2024. Defendant timely removed the lawsuit 6 on December 20, 2024. 7 b. Amount in Controversy 8 Plaintiff argues that the Court lacks subject matter jurisdiction because 9 Defendants cannot demonstrate that the amount in controversy exceeds $5 million as 10 required by CAFA. In assessing the amount in controversy, courts first look to the 11 allegations in the complaint. Ibarra, 775 F.3d at 1197. Courts can accept a plaintiff’s 12 good faith allegation of the amount in controversy. Id. But if the “plaintiff’s complaint 13 does not state the amount in controversy, the defendant’s notice of removal may do 14 so.” 28 U.S.C. § 1446(c)(2)(A); Dart Cherokee, 574 U.S. at 84. “When a plaintiff 15 contests the amount in controversy allegation, ‘both sides submit proof and the court 16 decides, by a preponderance of the evidence, whether the amount-in-controversy 17 requirement has been satisfied.’” Jauregui v. Roadrunner Transp. Servs., Inc., 28 18 F.4th 989, 992 (2022) (quoting Dart Cherokee, 574 U.S. at 88). In CAFA cases, there 19 is no presumption against removal. Rather, “CAFA's provisions should be read 20 broadly, with a strong preference that interstate class actions should be heard in 21 federal court if properly removed by any defendant.” Id. at 993 (citations omitted). 22 Here, the Complaint does not allege an amount in controversy. See generally 23 Compl. In the Notice of Removal, Defendant alleges that the amount in controversy is 24 approximately $5,192,500. See NOR at 18. Defendant has relied on the Declaration of 25 Sofia Cruz, Senior Human Resource Manager at Arvato in Ontario, California, to 26 support its calculations. See Dkt. No. 1-2 (“Cruz Decl.”). Based on Ms. Cruz’s 27 declarations, Defendant asserts that 297 class members worked approximately 32,000 28 workweeks and earned an average hourly rate of $22.98, and an average overtime rate 1 of $34.46. See NOR ¶ 27, 32. Defendant also asserts that 118 employees separated 2 from the company between September 18, 2021, and December 18, 2024, and that 3 Defendant issued more than 4,600 weekly wage statements to 171 Putative Class 4 Members within the one-year statute of limitations. See NOR ¶ 44, 46. Based on the 5 evidence discussed in that declaration, Defendant submits figures regarding the 6 damages estimated for Plaintiff’s claims: 7 Claim Amount in Controversy Unpaid Minimum Wages $1,151,000 8 Unpaid Overtime Wages $1,100,000 9 Unpaid Break Premiums $735,360 Unpaid Expense Reimbursement $64,000 10 Waiting Time Penalties $650,000 11 Wage Statement Penalties $454,000 Attorneys’ Fees $1,038,500 12 Total $5,192,500 13 14 NOR at 18. The Court notes that Plaintiff does not provide evidence to rebut 15 Defendant’s showing. 16 17 i. Defendant’s Calculations for the Unpaid Minimum Wage 18 Claim Merit Reduction 19 Section 1194 provides that “any employee receiving less than the legal 20 minimum wage or the legal overtime compensation applicable to the employee is 21 entitled to recover in a civil action the unpaid balance of the full amount of this 22 minimum wage or overtime compensation, including interest thereon, reasonable 23 attorney's fees, and costs of suit.” Cal. Lab. Code § 1194. Further, on unpaid 24 minimum wage claims, “an employee shall be entitled to recover liquidated damages 25 in an amount equal to the [minimum] wages unlawfully unpaid and interest thereon.” 26 Id. § 1194.2; see also, Brewer v. Premier Golf Properties, 168 Cal.App.4th 1243, 27 1253 n.8 (2008). Thus, damages for an unpaid minimum wage claim “would be 28 California's minimum wage multiplied by the number of unpaid hours worked, and 1 then doubled to include liquidated damages.” Vasquez v. Randstad US, L.P., No. 17- 2 CV-04342-EMC, 2018 WL 327451, at *4 (N.D. Cal. Jan. 9, 2018). 3 Plaintiff argues that Defendant’s 20% violation rate—the assumption of one (1) 4 hour of unpaid regular wages per workweek—is unreasonable because it assumes that 5 100% of the class was subject to the minimum wage violations. Mot. at 15. Defendant 6 argues that the one-hour estimate is reasonable because Plaintiff alleged the failure to 7 pay wages occurred “[t]hroughout the statutory period” and was due to a “policy and 8 practice of not paying Plaintiff and the Class for all hours worked” (Compl. at ¶ 14- 9 15). Opp’n at 12. Plaintiff, too, acknowledged that it used “fairly broad language in 10 the Complaint” such as “systematic, company-wide policy and practice,” but 11 downplayed the breadth by asserting, “[l]anguage can be purposefully broad without 12 being definitively all-inclusive.” Mot. at 15. However, the Court finds Defendant’s 13 20% violation rate reasonable due to the broad allegations in the Complaint. Where 14 plaintiffs have not alleged subclasses or otherwise drawn relevant distinctions between 15 class members and alleged violations resulting from a “policy and practice,” courts 16 have found a 20% violation rate reasonable. Rapisura v. BMW of N. Am., LLC, No. 17 2:22-CV-00455 WBS AC, 2022 WL 1557001, at *2 (E.D. Cal. May 17, 2022) 18 (quoting Cabrera v. South Valley Almond Co., LLC, No. 1:21-cv-00748-AWI-JLT, 19 2021 WL 5937585, at *8 (E.D. Cal. Dec. 16, 2021)); see also Cavada v. Inter-Cont'l 20 Hotel Grp., Inc., No. 19cv1675-GPC(BLM), 2019 WL 5677846, at *5 (S.D. Cal. Nov. 21 1, 2019) (determining it was reasonable for the defendant to find two hours of unpaid 22 overtime per week based on the complaint's policy and practice language). 23 Defendant assigned the average hourly rate of $22.98 to the estimated one (1) 24 hour of unpaid regular wages per week. Defendant calculated that this would plausibly 25 place $735,000 in controversy without adding liquidated damages ($22.98 x 1 hour / 26 week x 32,000 workweeks). However, the Defendant does not explain why it uses the 27 “average hourly rate” to calculate the minimum wage damages at stake in this claim. 28 In 2020, California’s minimum wage was $13.00 per hour, in 2021 it was $14.00, in 1 2022 it was $15.00, in 2023 it was $15.50, and in 2024 it was $16.00—all below 2 Defendant’s $22.98. See Cal. Dep't. of Indus. Rel. Lab. Comm'r Office, Minimum 3 Wage Frequently Asked Questions, 4 https://www.dir.ca.gov/dlse/faq_minimumwage.htm (last visited May 21, 2025). The 5 Court is unable to find a reasonable factual basis for applying the $22.98 hourly rate to 6 this claim. 7 Where a Defendant uses unreasonable assumptions, but a reasonable 8 assumption is available, the Ninth Circuit instructs courts to adjust the calculation 9 accordingly. Jauregui, 28 F.4th at 996 (declining to zero-out a claim for failure to use 10 reasonable minimum wage figures because when “a defendant's assumption is rejected 11 because a different, better assumption is identified” courts “should consider the claim 12 under the better assumption”). Here, the average minimum wage (rounded up to the 13 nearest dollar) over the relevant period is $15.00, which reasonably places $480,000 14 in controversy ($15.00 x 1 hour / week x 32,000 workweeks). Id. 15 In calculating liquidated damages for every such hour, Defendant applied a 16 more conservative assumption, using the lowest minimum wage rate in the class to 17 estimate that Plaintiff has placed at least $416,000 in controversy ($13.00 x 1 hour per 18 week x 32,000 workweeks). However, because liquidated damages are calculated by 19 doubling the applicable unpaid minimum wage, the Court will double the previous 20 calculation instead of using the lowest minimum wage rate: ($15.00 x 1 hour / week x 21 32,000 workweeks). Accordingly, the Court reduces Defendant’s calculation of 22 $1,151,360 in controversy for the minimum wage claim to $960,000 including 23 liquidated damages. 24 ii. Defendant’s Calculations for Unpaid Overtime Were 25 Reasonable 26 Plaintiff next argues that counting both one hour of unpaid overtime wages per 27 week and one hour of unpaid regular hours per week amounts to illogical double 28 damages. Plaintiff asserts it is unreasonable to assume “that every single employee 1 uniformly worked exactly one uncompensated hour at their base wage and exactly one 2 hour of uncompensated overtime, in every single week.” Mot. at 14. Defendant does 3 not directly address this argument in its Opposition, but cites to Kastler v. Oh My 4 Green, Inc., No. 19-CV-02411-HSG, 2019 WL 5536198, at *4 (N.D. Cal. Oct. 25, 5 2019) where the court accepted the assumptions of one hour of unpaid overtime and 6 one hour of unpaid regular working time for the entire class. Opp’n at 13. In Kastler 7 the court found these assumptions reasonable because the plaintiff “fail[ed] to include 8 specific allegations” about the nature of the unpaid overtime hours and alleged a 9 pattern and practice of failing to pay overtime wages. Kastler, 2019 WL 5536198 at 10 *4. However, neither Kastler nor the other two cases Defendant cited addressed the 11 issue of double counting regular and overtime hours. 12 It is true that an employee “cannot be awarded double recovery” for the same 13 unpaid time. Vasquez v. Randstad US, L.P., No. 17-CV-04342-EMC, 2018 WL 14 327451, at *3 (N.D. Cal. Jan. 9, 2018). If an employee worked eight hours per day, 15 five days a week, and spent an unpaid hour in a security line that week, then that hour 16 would go toward overtime damages, not minimum wage damages. Id. Here, Plaintiff 17 alleges generally that “throughout the statutory period, Defendants maintained a 18 policy and practice of not paying Plaintiff and the Class for all hours worked.” Compl. 19 at ¶ 15. While Plaintiff’s minimum wage and overtime wage claims appear to be 20 premised on largely the same conduct, such as the allegation that Defendant did not 21 pay the class for time spent waiting in security check lines, Plaintiff does not cabin the 22 violative conduct and instead gives non-exhaustive examples. Id. Furthermore, 23 Plaintiff alleges that Defendant failed to factor non-discretionary incentives into its 24 accounting for overtime compensation, resulting in underpayment, which is conduct 25 distinct to the overtime claim. Id. Therefore, it is reasonable to assume Plaintiff is 26 alleging different instances of unpaid time for the two claims because the Complaint 27 includes a distinct reason for unpaid overtime compensation (failure to account for 28 incentives) and does not specify the nature of the unpaid work. See, e.g., Rapisura v. 1 BMW of N. Am., Ltd. Liab. Co., No. 2:22-CV-00455 WBS AC, 2022 WL 1557001, at 2 *3 (E.D. Cal. May 17, 2022) (rejecting a double-counting argument because plaintiff 3 alleged “separate claims for minimum wages and overtime wages and state[d] 4 different theories for these claims”); see also Cabrera v. S. Valley Almond Co., LLC, 5 No. 121CV00748AWIJLT, 2021 WL 5937585, at *8 (E.D. Cal. Dec. 16, 2021) 6 (finding it reasonable to assume that all putative class members were subject to an 7 hour of unpaid overtime and an hour of unpaid minimum wages where plaintiff “does 8 not allege subclasses” and states violations were “due to policies and/or practices”). 9 The instant case is distinct from that of Vasquez where both the overtime and 10 minimum wage claims were premised on the same 2.5 hours of unpaid meal breaks. 11 Vasquez, 2018 WL 327451 at *3. Here, the complaint is broad enough, with certain 12 allegations distinct to the overtime claim, that it is reasonable to assume one hour of 13 unpaid time for each claim without risking double damages. 14 Accordingly, Defendant’s calculation of $1,100,000 ($34.46 average hourly 15 overtime wage rate x 1 hour of unpaid overtime/week x 32,000 workweeks) in 16 controversy for the overtime claim is reasonable. 17 iii. Defendant’s Calculations for the Third and Fourth Cause of 18 Action for Meal Period and Rest Break Premiums Were 19 Unreasonable 20 Plaintiff asserts that Defendant’s assumption of one missed meal period per 21 week or one missed rest break per week for each class member was unreasonable 22 because the Complaint alleged those violations occurred “sometimes, but not always.” 23 Compl. ¶¶ 16, 17. Plaintiff challenged the factual basis for the assumption that “all 24 employees” were denied one meal or rest break per week because Defendant did not 25 provide information to support this conclusion such as average shift lengths, or the 26 types of shifts worked. Mot. at 17. The Ninth Circuit has ruled that when a plaintiff 27 “contest[s] the truth of the defendant's factual allegations,” the defendant has the 28 “burden of supporting its jurisdictional allegations with competent proof.” Harris, 980 1 F.3d at 700-01 (cleaned up). Nevertheless, Defendant did not directly respond to 2 Plaintiff’s argument or elaborate on its basis for asserting that all employees would be 3 reasonably implicated by the rest and meal break claims. Defendant merely cited to 4 district cases decided before Harris. Opp’n at 14. 5 As Plaintiff pointed out, while unpaid wages would not typically be tracked in 6 company records, information relevant to meal and rest break claims such as shifts 7 worked, break eligibility, and breaks taken would be recorded, making sub-classes for 8 these two claims more readily discernable. Despite the availability of this type of 9 information, the defendant in Harris “offered no proof that all” class members 10 “worked sufficient shifts during the [relevant] workweeks to qualify them for meal 11 and rest periods.” Harris, 980 F.3d at 702. The Ninth Circuit therefore found that the 12 defendant had not met its burden to show that rest and meal break claims could be 13 reasonably assumed to apply to 100% of the class by a preponderance of the evidence. 14 Id. 15 Here, Defendant Arvato represented in its initial Notice of Removal that it 16 “typically hired and scheduled these employees to work five days per week and eight 17 hours per day.” Cruz Decl. ¶ 8. Though Defendant had the opportunity to do so, it did 18 not provide any more information or argument to explain its assumption that all class 19 members would be subject to the meal and rest break claims following Plaintiff’s 20 factual challenge. See Opp’n at 9-11, 14. Though a declaration as to Defendant’s 21 typical hiring and scheduling practices is more than nothing, the Court nevertheless 22 finds that where a plaintiff alleged break violations occurred “sometimes but not 23 always,” providing nothing more than a vague assertion about scheduling practices 24 does not support the assumption that every employee in the class worked sufficient 25 shifts every week for four years to qualify for these breaks. See, e.g. Davis v. Empire 26 Chauffeur Serv., Ltd., No. 223CV07968MEMFSSC, 2024 WL 1217377, at *6 (C.D. 27 Cal. Mar. 18, 2024) (finding phrases like “policy and practice,” “at times,” and “some 28 of them” cannot “reasonably be read as 100% of employees”); Harris, 980 F.3d at 702 1 (affirming remand because “relying on the factually unsupported and unreasonable 2 assumption that the 442 Hourly Employee Class members worked shifts long enough 3 to entitle them to meal and rest periods would exaggerate the amount in controversy”). 4 At minimum, Defendant ought to know the rough proportion of the class members 5 that was full-time and part-time, and if all class members were indeed full-time 6 employees, the Defendant could assert as much. Cf. Lopez v. Adidas Am., Inc., No. 7 221CV00447MCSPVS, 2021 WL 927265, at *3 (C.D. Cal. Mar. 11, 2021) (finding 8 meal and rest period calculations reasonable where defendant analyzed “employment 9 data showing that roughly 61% of the 457,434 shifts were eligible for at least one 10 meal period and that at least 75% were eligible for one rest period”). 11 Finding no factual basis in the Complaint or NOR from which to draw an 12 assumption about how many members of the class were eligible to take breaks, the 13 Court cannot “supply further assumptions of its own.” Harris, 980 F.3d at 701. 14 “Where a defendant's assumption is unreasonable on its face without comparison to a 15 better alternative, a district court may be justified in simply rejecting that assumption 16 and concluding that the defendant failed to meet its burden.” Jauregui, 28 F.4th at 17 996. That is the case here. Defendant’s calculation is unreasonable because Defendant 18 did not establish that it was more likely than not that 100% of the class members were 19 eligible for rest breaks or meal breaks every week—not because the Defendant 20 overlooked an obvious alternative. Cf. Id. (declining to zero-out a claim for failure to 21 use appropriate minimum wage figures when correct minimum wage numbers were 22 readily available). In sum, without a plausible factual basis, the assertion of 100% 23 percent class participation, or any other proportion the Court might draw without 24 knowledge of the shifts worked by the class, would amount to “speculation” or 25 “assumptions ... pulled from thin air,” which the Ninth Circuit has prohibited. See 26 Ibarra, 775 F.3d at 1197, 1199. Accordingly, the Court finds Defendant has not met 27 its burden to show that $735,360 is in controversy under the unpaid rest and meal 28 break claims. 1 iv. Remaining Claims 2 In light of the Court's findings above, even if Defendant's calculations regarding 3 || the remaining claims (failure to rermburse business expenses, failure to timely pay 4 || final wages, failure to provide accurate wage statements, and attorney's fees!) are 5 || proper, they are insufficient to bring the amount in controversy over the $5,000,000 6 || threshold. 7 IV. CONCLUSION 8 For the foregoing reasons, Plaintiff's Motion to Remand is GRANTED and 9 | Defendant’s Motion to Compel Arbitration is DENIED as MOOT. This matter is 10 | remanded to the San Bernardino County Superior Court forthwith. 11 12 | ITIS SO ORDERED. 13 ol” 14 | Dated: May 28, 2025 15 HONORABLE ANDRE BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE 16 17 18 19 20 21 22 23 24 | ——___————— 25 | | Defendant argues that the statutory allowance for attorneys' fees will add 25% to the 96 || amount in controversy, which Plaintiff argues is unreasonable as a per se fee award without more to justify its reasonableness. See Opp’n at 17; Reply at 8. Setting aside 27 | whether the 25% fee calculation is appropriate, because the Court finds the underlying assumptions are unreasonable, the resulting attorney fee calculation is unsupported. 28 | Davis, 2024 WL 1217377 at *7. 13