1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN OCHOA, JR., No. 2:22-cv-02287-KJM-AC 12 Plaintiff, ORDER 13 Vv. 14 | COSTCO WHOLESALE CORPORATION and DOES 1-10, inclusive, ° Defendants. 16 17 Plaintiff Juan Ochoa, Jr. brought this disability discrimination, harassment and retaliation 18 | lawsuit against his employer, defendant Costco Wholesale Corporation, in San Joaquin County 19 | Superior Court. Costco timely removed the action to this court, invoking the court’s diversity 20 | jurisdiction. Mr. Ochoa moved for remand, arguing Costco fails to establish the amount in 21 | controversy exceeds $75,000. As explained below, the court finds Costco has established it is 22 | more likely than not the amount in controversy exceeds $75,000; the court therefore denies 23 | Mr. Ochoa’s motion. 24 | I. BACKGROUND 25 Mr. Ochoa has worked for Costco since April 2013. See Compl. § 7, Not. Removal, Ex. 26 | A, ECF No. 1-1. He suffers from multiple sclerosis and alleges Costco has known of his 27 | disability since 2016 at the latest. Jd. J] 8-9. In April 2022, Mr. Ochoa alleges Costco denied 28 | him the position of forklift operator based on his “actual and perceived disability.” /d. □ 11.
1 Mr. Ochoa alleges his assistant manager Tim Stone told him he had “too many absences” to 2 receive the position, despite knowing the absences were due to Mr. Ochoa’s disability. Id. 3 Mr. Ochoa claims Costco has discriminated against him based on his disability for years 4 and has retaliated against him for requesting “reasonable accommodation and protected medical 5 leave” and complaining against Costco’s practices. Id. ¶ 10. He alleges Costco continued its 6 “discrimination, harassment, and retaliation” by limiting his opportunities for advancement and 7 promotion, assigning him “physically arduous tasks” without reasonable accommodation and 8 intermittent medical leave for his disability, and pressuring him to quit. Id. ¶ 13. 9 Mr. Ochoa filed a complaint with the California Civil Rights Department (“CRD”) on 10 September 13, 2022. Id. ¶ 15. On the same day, CRD issued Mr. Ochoa a right-to-sue notice, 11 which Mr. Ochoa served on Costco. Id. Mr. Ochoa sued Costco in the Superior Court of the 12 State of California in San Joaquin County on November 18, 2022, alleging various forms of 13 discrimination, harassment, retaliation and failure to engage in the interactive process. See 14 generally Compl. Mr. Ochoa does not specify his injuries in his complaint but seeks 15 compensatory, special, general and punitive damages, along with injunctive and declaratory 16 relief, and attorneys’ fees and costs. Id. at 6–7. Mr. Ochoa served Costco on November 22, 17 2022. Not. Removal ¶ 3, ECF No. 1. As noted, Costco timely removed to this court on 18 December 22, 2022. See id. ¶¶ 6–8. Mr. Ochoa moves to remand, arguing this court lacks 19 subject matter jurisdiction because Costco cannot prove more than $75,000 is at issue in this 20 lawsuit. See generally Mot. Remand, ECF No. 6. The court received full briefing and submitted 21 the matter without oral argument. See Opp’n, ECF No. 7; Def.’s Req. Jud. Not., ECF No. 8;1 22 Reply, ECF No. 9; Min. Order, ECF No. 11. 23 II. LEGAL STANDARD 24 Federal courts have original jurisdiction over civil cases in which the amount in 25 controversy exceeds $75,000 and the case is between citizens of different states. 28 U.S.C. 26 §1332. When a federal district court would have had original jurisdiction over an action 27 originally filed in state court, the action may be removed to federal court. 28 U.S.C. § 1441(a). 28 The removal statute is strictly construed, and doubts regarding the court’s jurisdiction are 1 The court grants defendant’s unopposed request for judicial notice of state court judgments. See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“[Courts] may take judicial notice of undisputed matters of public record . . . including documents on file in federal or state courts.”). 1 resolved in favor of remand. See Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 2 1031, 1034 (9th Cir. 2008). Removal is proper only when (1) the case presents a federal question 3 or (2) there is diversity of citizenship between the parties and the amount in controversy exceeds 4 $75,000. See 28 U.S.C. §§ 1331, 1332(a). 5 For diversity jurisdiction to adhere, the amount in controversy is an “estimate of the total 6 amount in dispute.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010) (citation 7 omitted). “Where it is not facially evident from the complaint that more than $75,000 is in 8 controversy, the removing party must prove, by a preponderance of the evidence, that the amount 9 in controversy meets the jurisdictional threshold.” Matheson v. Progressive Specialty Ins. Co., 10 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam); see also Sanchez v. Monumental Life Ins. Co., 11 102 F.3d 398, 404 (9th Cir. 1996) (“Under this burden, the defendant must provide evidence 12 establishing that it is ‘more likely than not’ that the amount in controversy exceeds [the 13 jurisdictional amount].”). To determine if the amount in controversy is met, the district court 14 considers the complaint, allegations in the removal petition, and “summary-judgment-type 15 evidence relevant to the amount in controversy,” Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 16 (9th Cir. 2005) (citation omitted), as well as evidence filed in opposition to the motion to remand, 17 Lenau v. Bank of Am., N.A., 131 F. Supp. 3d 1003, 1005 (E.D. Cal. 2015) (citing Cohn v. 18 Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (per curiam)). 19 III. ANALYSIS 20 The parties do not dispute that the diversity of citizenship requirement is met, so the only 21 question before the court is whether the amount in controversy exceeds $75,000. See generally 22 Mot. Remand; Opp’n. The Supreme Court has held the party seeking removal “need include only 23 a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart 24 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). Costco bases its amount- 25 in-controversy estimation on Mr. Ochoa’s claims for (1) disability discrimination, (2) disability 26 harassment, (3) failure to accommodate, (4) failure to engage in interactive process, 27 (5) retaliation, and (6) failure to prevent discrimination, harassment and retaliation. See generally 28 Not. Removal; Opp’n. Mr. Ochoa has not stated a specific amount he seeks based on his claims. 29 See Mot. Remand at 3; Reply. The court thus addresses whether Costco has shown it is more 30 likely than not Mr. Ochoa’s damages and attorneys’ fees exceed $75,000. 1 A. Damages 2 Mr. Ochoa seeks compensatory, special, general and punitive damages. Compl. at 6–7.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN OCHOA, JR., No. 2:22-cv-02287-KJM-AC 12 Plaintiff, ORDER 13 Vv. 14 | COSTCO WHOLESALE CORPORATION and DOES 1-10, inclusive, ° Defendants. 16 17 Plaintiff Juan Ochoa, Jr. brought this disability discrimination, harassment and retaliation 18 | lawsuit against his employer, defendant Costco Wholesale Corporation, in San Joaquin County 19 | Superior Court. Costco timely removed the action to this court, invoking the court’s diversity 20 | jurisdiction. Mr. Ochoa moved for remand, arguing Costco fails to establish the amount in 21 | controversy exceeds $75,000. As explained below, the court finds Costco has established it is 22 | more likely than not the amount in controversy exceeds $75,000; the court therefore denies 23 | Mr. Ochoa’s motion. 24 | I. BACKGROUND 25 Mr. Ochoa has worked for Costco since April 2013. See Compl. § 7, Not. Removal, Ex. 26 | A, ECF No. 1-1. He suffers from multiple sclerosis and alleges Costco has known of his 27 | disability since 2016 at the latest. Jd. J] 8-9. In April 2022, Mr. Ochoa alleges Costco denied 28 | him the position of forklift operator based on his “actual and perceived disability.” /d. □ 11.
1 Mr. Ochoa alleges his assistant manager Tim Stone told him he had “too many absences” to 2 receive the position, despite knowing the absences were due to Mr. Ochoa’s disability. Id. 3 Mr. Ochoa claims Costco has discriminated against him based on his disability for years 4 and has retaliated against him for requesting “reasonable accommodation and protected medical 5 leave” and complaining against Costco’s practices. Id. ¶ 10. He alleges Costco continued its 6 “discrimination, harassment, and retaliation” by limiting his opportunities for advancement and 7 promotion, assigning him “physically arduous tasks” without reasonable accommodation and 8 intermittent medical leave for his disability, and pressuring him to quit. Id. ¶ 13. 9 Mr. Ochoa filed a complaint with the California Civil Rights Department (“CRD”) on 10 September 13, 2022. Id. ¶ 15. On the same day, CRD issued Mr. Ochoa a right-to-sue notice, 11 which Mr. Ochoa served on Costco. Id. Mr. Ochoa sued Costco in the Superior Court of the 12 State of California in San Joaquin County on November 18, 2022, alleging various forms of 13 discrimination, harassment, retaliation and failure to engage in the interactive process. See 14 generally Compl. Mr. Ochoa does not specify his injuries in his complaint but seeks 15 compensatory, special, general and punitive damages, along with injunctive and declaratory 16 relief, and attorneys’ fees and costs. Id. at 6–7. Mr. Ochoa served Costco on November 22, 17 2022. Not. Removal ¶ 3, ECF No. 1. As noted, Costco timely removed to this court on 18 December 22, 2022. See id. ¶¶ 6–8. Mr. Ochoa moves to remand, arguing this court lacks 19 subject matter jurisdiction because Costco cannot prove more than $75,000 is at issue in this 20 lawsuit. See generally Mot. Remand, ECF No. 6. The court received full briefing and submitted 21 the matter without oral argument. See Opp’n, ECF No. 7; Def.’s Req. Jud. Not., ECF No. 8;1 22 Reply, ECF No. 9; Min. Order, ECF No. 11. 23 II. LEGAL STANDARD 24 Federal courts have original jurisdiction over civil cases in which the amount in 25 controversy exceeds $75,000 and the case is between citizens of different states. 28 U.S.C. 26 §1332. When a federal district court would have had original jurisdiction over an action 27 originally filed in state court, the action may be removed to federal court. 28 U.S.C. § 1441(a). 28 The removal statute is strictly construed, and doubts regarding the court’s jurisdiction are 1 The court grants defendant’s unopposed request for judicial notice of state court judgments. See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“[Courts] may take judicial notice of undisputed matters of public record . . . including documents on file in federal or state courts.”). 1 resolved in favor of remand. See Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 2 1031, 1034 (9th Cir. 2008). Removal is proper only when (1) the case presents a federal question 3 or (2) there is diversity of citizenship between the parties and the amount in controversy exceeds 4 $75,000. See 28 U.S.C. §§ 1331, 1332(a). 5 For diversity jurisdiction to adhere, the amount in controversy is an “estimate of the total 6 amount in dispute.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010) (citation 7 omitted). “Where it is not facially evident from the complaint that more than $75,000 is in 8 controversy, the removing party must prove, by a preponderance of the evidence, that the amount 9 in controversy meets the jurisdictional threshold.” Matheson v. Progressive Specialty Ins. Co., 10 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam); see also Sanchez v. Monumental Life Ins. Co., 11 102 F.3d 398, 404 (9th Cir. 1996) (“Under this burden, the defendant must provide evidence 12 establishing that it is ‘more likely than not’ that the amount in controversy exceeds [the 13 jurisdictional amount].”). To determine if the amount in controversy is met, the district court 14 considers the complaint, allegations in the removal petition, and “summary-judgment-type 15 evidence relevant to the amount in controversy,” Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 16 (9th Cir. 2005) (citation omitted), as well as evidence filed in opposition to the motion to remand, 17 Lenau v. Bank of Am., N.A., 131 F. Supp. 3d 1003, 1005 (E.D. Cal. 2015) (citing Cohn v. 18 Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (per curiam)). 19 III. ANALYSIS 20 The parties do not dispute that the diversity of citizenship requirement is met, so the only 21 question before the court is whether the amount in controversy exceeds $75,000. See generally 22 Mot. Remand; Opp’n. The Supreme Court has held the party seeking removal “need include only 23 a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart 24 Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). Costco bases its amount- 25 in-controversy estimation on Mr. Ochoa’s claims for (1) disability discrimination, (2) disability 26 harassment, (3) failure to accommodate, (4) failure to engage in interactive process, 27 (5) retaliation, and (6) failure to prevent discrimination, harassment and retaliation. See generally 28 Not. Removal; Opp’n. Mr. Ochoa has not stated a specific amount he seeks based on his claims. 29 See Mot. Remand at 3; Reply. The court thus addresses whether Costco has shown it is more 30 likely than not Mr. Ochoa’s damages and attorneys’ fees exceed $75,000. 1 A. Damages 2 Mr. Ochoa seeks compensatory, special, general and punitive damages. Compl. at 6–7. 3 Because plaintiff’s complaint seeks all forms of damages and plaintiff has not contested in his 4 motion or reply which damages are relevant here, the court considers damages typical to 5 plaintiff’s claims under the California Fair Employment and Housing Act (“FEHA”), including 6 emotional distress and punitive damages. Punitive damages may be considered when they are 7 recoverable under one or more of plaintiff’s claims for relief. See Gibson v. Chrysler Corp., 8 261 F.3d 927, 945–46 (9th Cir. 2001). Mr. Ochoa’s claims are brought under FEHA, and punitive 9 damages are recoverable for FEHA violations. See Commodore Home Systems, Inc. v. Superior 10 Court, 32 Cal. 3d 211, 221 (1982) (“[I]n a civil action under the FEHA, all relief generally 11 available in noncontractual actions, including punitive damages, may be obtained.”). To establish 12 probable emotional distress and punitive damages, a defendant may introduce evidence of jury 13 verdicts from cases with analogous facts. See Kroske, 432 F.3d at 980 (noting “district court 14 properly considered . . . emotional distress damage awards in similar age discrimination cases”). 15 Such cases are probative if they are “factually identical or, at a minimum, analogous to the case at 16 issue.” Mireles v. Wells Fargo Bank, N.A., 845 F. Supp. 2d 1034, 1055 (C.D. Cal. 2012). 17 In its notice of removal and opposition, Costco highlights several California cases 18 involving single-plaintiff disability discrimination, failure to engage in the interactive process and 19 retaliation cases with compensatory and punitive damages ranging from $295,000 to $1,284,000. 20 Not. Removal ¶¶ 39–41; 46–48; Opp’n at 4–6; see also generally Def.’s Req. Jud. Not. While 21 these cases are not perfectly analogous, as plaintiff correctly argues in his reply, they are 22 sufficiently similar to serve as benchmarks as dealing with many of the same claims Mr. Ochoa 23 asserts in his complaint. See Mireles, 845 F. Supp. 2d at 1055. While the cases also involve 24 wrongful termination claims and multiple plaintiffs, they address claims of retaliation and failure 25 to engage in the interactive process claims, see, e.g., Carrillo v. County of Orange, No. 26 07CC02038 (Cal. Super. Ct. July 6, 2009), Def.’s Req. Jud. Not. Ex. A. (jury awarding plaintiff 27 $78,658 in non-economic damages including damages for emotional distress as well as attorneys’ 28 fees of $246,060); Wysinger v. Automobile Club of Southern California, No. 01132996, 2006 WL 29 6080930 (Cal. Super. Ct. June 19, 2006), Def.’s Req. Jud. Not. Ex. C. (awarding plaintiff $80,000 30 in non-economic damages and $1,000,000 in punitive damages for retaliation and failure to 31 engage in interactive process), and disability discrimination, disability harassment and failures to 32 accommodate and prevent harassment, see, e.g., Azzolin v. San Bernardino Cnty. Sheriff’s Dept., 1 No. CIVDS 1206805 (Cal. Super. Ct. Aug. 4, 2014), Def.’s Req. Jud. Not. Ex. D. (awarding 2 $1,200,000 in damages, including $250,000 for non-economic damages to plaintiff for disability 3 discrimination, failure to engage in interactive process, and failure to accommodate); Espinoza v. 4 County of Orange, No. 30-2008-00110643 (Cal. Super. Ct. Oct. 8, 2009), Def.’s Req. Jud. Not. 5 Ex. B (jury awarding plaintiff $500,000 in non-economic mental distress damages). 6 Mr. Ochoa argues these judgments do not sufficiently identify the underlying facts for this 7 court to properly compare them with Mr. Ochoa’s case, and argues Costco’s contention is purely 8 speculative. See Mot. Remand at 3–5; Reply at 2. As explained above, cases, like the ones cited 9 by Costco, are probative if they are “factually identical or, at a minimum, analogous to the case at 10 issue.” Mireles, 845 F. Supp. 2d at 1055. When no specific damages are alleged, courts look to 11 cases and jury awards with sufficiently similar claims. Owuor v. Wal-Mart Associates, Inc., 2022 12 WL 1658738, at *3 (E.D. Cal. May 25, 2022) (noting while “cases are not perfectly analogous . . . 13 they are sufficiently similar to serve as benchmarks”); Simmons v. PCR Tech., 209 F. Supp. 2d 14 1029, 1033 (N.D. Cal. 2002) (“Notwithstanding these differences, the jury verdicts in these cases 15 amply demonstrate the potential for large punitive damage awards in employment discrimination 16 cases.”). Courts often require far less at this stage than what Costco has put forth to meet its 17 burden. See, e.g., Simmons, 209 F. Supp. 2d at 1033–34. The cases it cites, including the cases 18 involving punitive damages of the sort Mr. Ochoa seeks, show it is more likely than not the 19 amount in controversy requirement for diversity is met. Costco further contends that even if this 20 court did not find the damages in this case more likely than not exceed $75,000, the attorneys’ fee 21 award sought by Mr. Ochoa would also mean his case exceeds the jurisdictional requirement. 22 B. Attorneys’ Fees 23 “[W]hen a statute or contract provides for the recovery of attorneys’ fees, prospective 24 attorneys’ fees must be included in the assessment of the amount in controversy.” Arias v. 25 Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019) (citation omitted). Mr. Ochoa’s 26 claims are brought under FEHA, which provides “[i]n actions brought under this section, the 27 court, in its discretion, may award to the prevailing party . . . reasonable attorney’s fees and 28 costs.” Cal. Gov’t Code § 12965(c)(6). 29 “A defendant does ‘not need to prove to a legal certainty’ a plaintiff will be awarded the 30 proffered attorneys’ fees in the removal notice.” Greene v. Harley-Davidson, Inc., 965 F.3d 767, 31 774 n.4 (9th Cir. 2020) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 1 81, 88 (2014)). The estimated attorneys’ fees must simply be reasonable. See id. “The 2 reasonableness of attorney’s fees, when such fees are unascertainable on the face of the 3 complaint, can be calculated by looking to other attorney’s fees awards in similar cases.” Sasso v. 4 Noble Utah Long Beach, LLC, 2015 WL 898468, at *5 (C.D. Cal. Mar. 3, 2015) (internal marks 5 and citation omitted). 6 Here, neither Costco nor Mr. Ochoa has given the court a detailed estimate of attorneys’ 7 fees in this case. Costco asserts attorneys’ fees in employment cases typically exceed $75,000 8 and, if successful, Mr. Ochoa would more likely than not be entitled to an award of attorneys’ 9 fees exceeding $75,000. Not. Removal ¶¶ 42–45 (citing cases); Opp’n at 6–7. Mr. Ochoa argues 10 Costco’s calculation of attorneys’ fees is speculative and the two cases Costco cites are not 11 analogous. Mot. Remand at 5. Because the amount of attorneys’ fees is “unascertainable on the 12 face of the complaint,” a reasonable estimate of attorneys’ fees can be calculated “by looking to 13 other attorney’s fees awards in similar cases.” Sasso, 2015 WL 898468, at *5 (citation omitted). 14 Costco supports its assertion by citing to similar cases where a single plaintiff brings 15 claims involving disability discrimination, failure to engage in the good faith interactive process, 16 retaliation and other FEHA claims. Opp’n at 6–7; see, e.g., Azzolin, No. CIVDS 1206805 17 (plaintiff awarded $506,313.00 in attorneys’ fees after jury found for plaintiff on claims of 18 disability discrimination, failure to engage in interactive process and failure to accommodate). 19 Again, while Mr. Ochoa correctly notes these cases are not factually identical to his, they involve 20 sufficiently analogous claims brought by single party plaintiffs against their employers. See 21 Sasso, 2015 WL 898468, at *5. Some courts have used $30,000 as a “conservative estimate” 22 where defendants do not introduce specific evidence of attorneys’ fees in employment 23 discrimination cases. See, e.g., Owuor, 2022 WL 1658738, at *3 (collecting cases). However, 24 with the number of claims asserted in this case, Costco has shown by a preponderance of the 25 evidence attorneys’ fees likely would exceed the amount in controversy requirement. 26 IV. CONCLUSION 27 Costco has shown it is more likely than not the compensatory damages and punitive 28 damages put more than $75,000 in controversy. Taken together, using even the most 29 conservative estimate of $30,000 in attorneys’ fees, Costco has met its burden of establishing, by 30 a preponderance of the evidence, the amount in controversy exceeds the jurisdictional threshold at 31 the time of removal. 1 Accordingly, Mr. Ochoa’s motion for remand is denied. 2 This order resolves ECF No. 6. 3 IT IS SO ORDERED. 4 DATED: April 7, 2023.