Petersen v. Gold Bond Building Products, LLC

Opinion

MICHAEL PETERSEN, Case No. 24-cv-00617-TSH

Plaintiff, ORDER RE: MOTION TO REMAND v. Re: Dkt. No. 14 LLC, Defendant. Pending before the Court is Plaintiff Michael Petersen’s Motion for Order Remanding Action to State Court. ECF No. 14. Defendant Gold Bond Building Products filed an Opposition (ECF No. 15) and Plaintiff filed a Reply (ECF No. 18). For the reasons stated below, the Court GRANTS the motion.1 Plaintiff Michael Petersen filed this putative class action on December 19, 2023 in Contra Costa County Superior Court against Defendant Gold Bond Building Products, LLC (“Gold Bond”). In the complaint, Plaintiff alleges failure to pay overtime wages, meal period violations, rest period violations, failure to pay all sick time, wage statement violations, waiting time penalties, failure to reimburse necessary business expenses, and unfair competition in violation of California Business and Professions Code § 17200 et seq. Compl. at 1, ECF No. 1-1. The complaint does not disclose the dollar amount in controversy. See generally id. On February 1, 2024, Defendant filed a notice of removal to federal court pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), contending that the total amount in controversy for all class members exceeds the $5 million threshold for jurisdiction under CAFA. Notice of Removal at 1, 8–10, ECF No. 1. Plaintiff moves to remand, arguing that Defendant has failed to demonstrate, by a preponderance of the evidence, that the amount in controversy has been met. Plaintiff’s Motion at 3, ECF No. 14. Because Defendant has failed to present reasonable estimates sufficiently grounded in evidence that exceed the $5 million threshold required for federal jurisdiction under CAFA, the Court grants Plaintiff’s motion. CAFA gives federal courts jurisdiction over class actions in which there are at least 100 members of the proposed plaintiff class, minimal diversity of citizenship exists between any member of a plaintiff class and any defendant, and the total amount in controversy exceeds $5,000,000, exclusive of interests and costs. 28 U.S.C. § 1332(d)(2), (5)(B); Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 84-85 (2014). The defendant or defendants to a class action that satisfies CAFA’s requirements may remove the action to federal court. 28 U.S.C. § 1441(a). There is no presumption against removal based on CAFA, “which Congress enacted to facilitate adjudication of certain class actions in federal court.” Dart Cherokee, 574 U.S. at 89. Under CAFA, a defendant removing a case must provide “a short and plain statement of the grounds for removal[.]” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). The notice of removal need only include “a plausible allegation that the amount in controversy exceeds the jurisdictional threshold” and does not need to be supported by evidentiary submissions. Id. (quoting Dart Cherokee, 574 U.S. at 84). Courts accept the defendant’s amount- in-controversy allegation unless it is contested by the plaintiff or questioned by the court. Dart Cherokee, 574 U.S. at 87. “If the plaintiff contests the defendant’s allegation, § 1446(c)(2)(B) instructs: ‘[R]emoval . . . is proper on the basis of an amount in controversy asserted’ by the defendant ‘if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds’ the jurisdictional threshold.” Id. at 88; 28 U.S.C. § 1446(c)(2)(B). When a plaintiff contests “a defendant's assertion of the amount in controversy . . . both in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1195 (quoting Dart Cherokee, 574 U.S. at 88). In the event of a challenge, “the defendant seeking removal bears the burden to show by a preponderance of the evidence that the aggregate amount in controversy exceeds $5 million[.]” Id. at 1197. “The parties may submit evidence beyond the complaint such as affidavits, declarations, or other ‘summary-judgment type evidence relevant to the amount in controversy[.]’” De Vega v. Baxter Healthcare Corp., 507 F. Supp. 3d 1214, 1217 (N.D. Cal. 2019 (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). “[A] defendant cannot establish removal jurisdiction by mere speculation and conjecture, with unreasonable assumptions.” Ibarra, 775 F.3d at 1197. “CAFA’s requirements are to be tested by consideration of real evidence and the reality of what is at stake in the litigation, using reasonable assumptions underlying the defendant’s theory of damages exposure.” Id. at 1198. “The burden to establish the amount in controversy by a preponderance of the evidence, however, does not require the defendant to ‘research, state, and prove the plaintiff's claims for damages.’” De Vega, 507 F. Supp. 3d at 1217 (quoting Donald v. Xanitos, Inc., No. 14-cv-05416-WHO, 2015 WL 1774870, at *4 (N.D. Cal. 2015)). In support of its notice of removal, Defendant submitted the declaration of Elizabeth Bergstrom, HRIS & Compensation Manager for NG Corporate, LLC, which provides human resources services to Defendant. ECF No. 3 (“First Bergstrom Decl.”) Defendant alleged in its notice of removal that the amount in controversy is not less than $6,272,355. Notice of Removal ¶ 74. In opposition to Plaintiff’s motion to remand, Bergstrom provided a second declaration with certain additional details, and Defendant provided an amended calculation of the amount in controversy of not less than $6,209,467. ECF No. 16 (“Second Bergstrom Decl.”); Opp’n at 2, ECF No. 15. Bergstrom declares that, from January 1, 2021 to mid-January 2024, Defendant employed approximately 197 non-exempt employees in California. Second Bergstrom Decl. ¶ 5. Of those employees, approximately 196 worked on a full-time basis during that period, working “approximately 192 employees worked overtime between January 1, 2021 and mid-January 2024.” Id. ¶ 6. Those employees worked approximately 14,523 workweeks during that period and worked approximately 12.03 overtime hours per week on average. Id. Bergstrom declares that Defendant paid the 197 non-exempt employees an average hourly rate of approximately $32.97, and an average hourly overtime rate of $49.45. First Bergstrom Decl. ¶¶ 10–11. Bergstrom declares that Defendant employed approximately 160 proposed putative class members between December 19, 2022 and mid-January 2024. First Bergstrom Decl. ¶ 9. Bergstrom further declares that at least 94 non-exempt employees separated from their employment with Defendant between January 1, 2021 and mid-January 2024, all of whom worked on a full-time basis for Defendant during that period. Second Bergstrom Decl. ¶ 10. Bergstrom attests that 93 of the 94 employees who previously worked for Defendant and whose employment was terminated between January 1, 2021 and mid-January 2024 had been separated for at least 30 days as of February 1, 2024. Id. ¶ 11. Based on the number of employees in the putative class and subclasses, the average hourly wage, and the number of workweeks at issue, Defendant calculates a total amount in controversy of $6,209,467, consisting of approximately $718,162 in allegedly unpaid overtime, purportedly missed rest period penalties of approximately $1,442,899, purportedly missed meal period penalties of approximately $1,442,899, claimed wage statement penalties of approximately $640,000 (see Notice of Removal ¶ 63), claimed waiting time penalties of approximately $723,614, and attorneys’ fees of $1,241,893. Opp’n at 9, 12, 14, 16, 18. The parties’ dispute turns primarily on whether Defendant is entitled to assume that putative class members worked one hour of unpaid overtime every workweek, that they missed three rest periods and three meal periods every workweek, that applicable subclass members may be entitled to the maximum penalties on the wage statement and waiting time claims, and that attorneys’ fees would be recoverable for all of Plaintiff’s claims. A. Declarations Can Lay a Sufficient Foundation for the Facts Defendant Asserts Plaintiff contends the first Bergstrom declaration is “conclusory and unsupported” and wages. Mot. at 6. Plaintiff further argues the second Bergstrom declaration “fails to account for each individual class members’ days off, holidays, sick days, absences and the like,” or for when each separated employee left Gold Bond. Reply at 5–6. However, as support for its original Notice of Removal, Defendant needed only to present “plausible allegation[s]” and did not have to present an admissible evidentiary submission. Ibarra, 775 F.3d at 1197. To the extent Bergstrom’s declarations are offered as evidence in opposition to remand, “submission of copies of underlying documents is not critical.” De Vega, 507 F. Supp. 3d at 1217 n.1. B. Overtime Wages Under California law, an employee who receives “less than the . . . legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of . . . overtime compensation,” including interest, attorneys’ fees and costs. Cal. Lab. Code § 1194. Plaintiff’s first cause of action alleges that putative class members “worked regular shifts that lasted longer than 8.0 hours in a workday and more than 40 hours in a workweek” and “were not properly paid at the correct overtime rate for all overtime hours worked due to Defendant’s uniform failure to include all forms of compensation/remuneration . . . in calculating the ‘regular rate of pay’ for purposes of overtime compensation.” Compl. ¶ 18. These forms of compensation “includ[e], but [are] not limited to, commissions, incentives, discretionary bonuses, and all other forms of remuneration[.]” Id. Plaintiff alleges a “policy of requiring . . . non-exempt employees to work” overtime “without compensating them at the lawful rate of one- half [sic] (1 1/2) their regular rate of pay.” Id. ¶ 21. In his eighth cause of action, for unfair competition, Plaintiff alleges that Defendant engaged in unfair or unlawful business practices by, inter alia, “failing to pay for all overtime wages, double time and sick pay wages at the proper rates[.]” Id. ¶ 83. Plaintiff’s complaint defines the putative “Overtime Subclass” to include “[a]ll current and former non-exempt hourly employees who worked for Defendant in California and who worked overtime hours during at least one shift, during the four years immediately preceding the filing of the Complaint through the date of trial.” Id. ¶ 37. To estimate the amount in controversy for Plaintiff’s overtime claims, Defendant assumes per week. Opp’n at 9. Defendant then multiplies one hour per week by the average hourly overtime rate of $49.45, and by 14,523 workweeks worked. Id. This amount totals $718,162. Id. Plaintiff argues Defendants were unreasonable to assume exactly one full hour of unpaid overtime per employee per workweek because Plaintiff does not actually allege that any overtime hours were entirely unpaid, but rather that the “regular rate of pay” used to calculate overtime pay was not properly calculated. See Mot. at 5–6. The Court agrees. Defendant cites Garza v. WinCo Holding, Inc., No. 12-cv-1354-JLT-HBK, 2022 WL 902782, at *5 (E.D. Cal. Mar. 28, 2022), Kincaid v. Educ. Credit Mgmt. Corp., No. 21-cv00863-TLN-JDP, 2022 WL 597158, at *4 (E.D. Cal. Feb. 28, 2022), and Wicker v. ASC Profiles LLC, No. 19-cv-02443-TLN-KJN, 2021 WL 1187271, at *2 (E.D. Cal. Mar. 30, 2021), for the proposition that an assumed violation rate of one hour of overtime per workweek is reasonable. However, none of these cases concern allegations that the base rate of pay from which overtime wages are determined was inaccurate in the first instance. See Smith v. Advanced Clinical Emp. Staffing, LLC, No. 21-cv-07325-EJD, 2022 WL 2037080, at *4 (N.D. Cal. June 7, 2022) (multiplying additional per hour value of housing and travel stipends by total number of overtime hours worked to calculate amount in controversy for alleged overtime violations, where plaintiffs alleged defendant failed to take all forms of compensation into account in determining overtime rates). Nowhere in Plaintiff’s complaint does Plaintiff allege that Defendant failed to pay overtime hours. Rather, Plaintiff repeatedly alleges that Defendant failed to properly calculate the hourly overtime rate of pay by failing to include all forms of compensation in the “regular rate of pay” upon which the overtime wages are based. There is a fundamental mismatch between the type of overtime violation Plaintiff alleges and the type of violation Defendant presumes exists in its calculation of the amount in controversy. Because Defendant’s calculations for Plaintiff’s overtime claim are untethered to what is at stake in the litigation, they cannot be used toward the amount in controversy for CAFA jurisdiction purposes. C. Meal and Rest Period Violations Under California law, an employee who experiences a meal or rest period violation is workday that the meal or rest . . . period is not provided.” Cal. Lab. Code § 226.7(c). Plaintiff’s second cause of action is for meal period violations. See Compl. ¶¶ 25–27, 51–54. Plaintiff’s third cause of action is for rest period violations. See id. ¶¶ 28–30, 55–59. Plaintiff does not specify the frequency of the alleged missed meal or rest periods. In its opposition, Defendant estimates a revised amount in controversy of $1,442,899 for meal period violations and $1,442,899 for rest period violations, based on a “60% violation rate” each for meal and rest periods. Opp’n at 12, 14. To establish the amount in controversy for Plaintiff’s meal period claim, Defendant multiplies 14,588 work weeks × $32.97 average hourly wage rate × 3 missed meal breaks per week for a total of $1,442,899. Opp’n at 14. For Plaintiff’s rest period claim, Defendant multiplies 14,588 work weeks × $32.97 average hourly wage rate × 3 missed rest breaks per week for a total of $1,442,899. Opp’n at 12. The Court finds Defendant has provided sufficient evidence to support the number of workweeks Defendant used in calculating its revised amount in controversy for meal and rest period violations. See Second Bergstrom Decl. ¶¶ 7–9 (establishing that 196 full-time, non- exempt employees worked approximately 14,588 workweeks from January 2021 through mid- January 2024, and that “[v]irtually all” of the shifts worked by these employees were over five hours and thus both rest-period and meal-period eligible.). However, the Court finds that the 60% violation rate Defendant applied to calculate the amount in controversy for these claims, equating to three meal periods plus three rest periods per week, is not supported by a preponderance of the evidence. First, Defendant contends that the Complaint “contemplates at least a 50 percent violation rate, if not a 100 percent violation rate” for Plaintiff’s meal period claim. Notice of Removal at 14. Defendant likewise frames its 60% violation rate for Plaintiff’s rest period claim as a conservative one, repeatedly asserting that Plaintiff alleges a rest period violation for every rest- period eligible shift. Opp’n at 10–12. Defendant grounds these assertions in Plaintiff’s use of the descriptor “at all relevant times.” Id. But this language appears to describe the period throughout which the alleged violations occurred rather than their frequency. Plaintiff’s use of words like that they were denied any meal or rest periods whatsoever. See Compl. ¶¶ 25 (alleging “non- exempt employees often could not take timely and uninterrupted net 30-minute first meal periods before the end of the fifth hour of work . . . and often could not take a second 30-minute uninterrupted and timely meal period for shifts in excess of 10.0 hours”) (emphasis added), 28 (alleging “non-exempt employees were and are often unable to take a net 10-minute duty free rest periods [sic] for every major fraction of four hours worked”) (emphasis added). Given this context, Plaintiff’s allegations that putative class members were unable to take “all” the rest breaks to which they were entitled indicate only that Defendant did not meet its affirmative obligation to provide employees 100% of the meal or rest periods it was required to provide. See id. ¶¶ 52, 57. Although Plaintiff attributes Defendant’s alleged meal and rest period violations in part to “uniform . . . policies and practices[,]” id. ¶¶ 25, 28, 30, “such allegations, standing alone, do not support an assumption that the amount in controversy can be properly calculated using an assumption of a ‘100% violation rate.’” De Vega, 507 F. Supp. 3d at 1218. See also Ibarra, 775 F.3d at 1198–99 (holding “a ‘pattern and practice’ of doing something does not necessarily mean always doing something” and finding that allegations that defendant had maintained an unwritten policy mandating alleged employment violations, “including the denial of meal and rest periods . . . does not mean that such violations occurred in each and every shift.”). Second, Defendant calculates an amount in controversy based on a “60% violation rate,” which Defendant takes to mean three meal period violations per week, plus three rest period violations per week. Notice of Removal at 14, 17; Opp’n at 11–12, 13–14. Defendant’s proposed amount in controversy thus reflects six meal and rest period violations per employee per week. But violations of Labor Code Section 226.7 entitle an employee “to an additional hour’s wages per day, even if denied both a rest and meal period during that day.” Roth v. Comerica Bank, 799 F. Supp. 2d 1107, 1120 (C.D. Cal. 2010); see also Lyon v. W.W. Grainger Inc., No. 10-cv-00884- WHA, 2010 WL 1753194, at *4 (N.D. Cal. Apr. 29, 2010) (“Labor Code Section 226.7 . . . provided for recovery per work day, not per violation. Defendant's estimate is therefore off by a magnitude of two[.]”). Defendant’s estimated amount in controversy is thus irreconcilable with See Second Bergstrom Decl. ¶ 7. Defendant also provides no support for its implicit assumption that alleged meal and rest period violations never overlapped and took place on the same day, an assumption that is unreasonable given Plaintiff’s allegations that the alleged violations were attributable in part to “operational requirements” and “work demands.” Compl. ¶¶ 25, 28. If Defendant’s assumptions of three meal period violations per week, plus three rest period violations per week, are reasonable, Defendant has shown that the amount in controversy for the meal period and rest period violations counted together is at least $1,442,899, but is less than twice that. Because the putative class members worked five shifts per week, the meal period violations totaling $1,442,899 cannot be added to the rest period violations that total $1,442,899 because some of the meal period and rest period violations occurred on the same day. Further, there is no basis or logical reason to make the most favorable assumption to Defendant that there was minimal overlap between those violations (and therefore reduce one of these numbers by a third). The more logical assumption is that if work demands were at the heart of both violations, they more often probably happened on the same day. In any event, the amounts in controversy for the two types of claims cannot be added together, and the actual extent of their overlap is speculation. Accordingly, Defendant has shown that the amount in controversy for the meal period and rest period violations counted together is at least $1,442,899, but Defendant has not shown that it is any particular amount that is greater than that. D. Wage Statement Violations Defendant fails to establish the amount in controversy for Plaintiff’s fifth cause of action, failure to provide accurate wage statements. See Compl. ¶¶ 66–71. California Labor Code Section 226 requires employers to provide each employee “an accurate itemized statement in writing” every pay period detailing, inter alia, all gross and net wages earned, hours worked, all applicable hourly rates in effect and the number of hours worked at each hourly rate. Cal. Lab. Code § 226(a). If an employer knowingly and intentionally violates any provision of Section 226(a), each individual employee “is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) four thousand dollars ($4,000).” Cal. Lab. Code § 226(e)(1). Based on this penalty structure, an individual employee who worked at least 41 pay periods is entitled to the maximum aggregate penalty of $4,000. Defendant indicates that it paid employees on a bi-weekly basis. Notice of Removal ¶ 63. Each putative class member would thus need to have worked for Defendant for 82 weeks – approximately 1 year and seven months – to have worked the 41 requisite pay periods to be entitled to the maximum penalty. The allegations in the Complaint support Defendant’s initial assumption of a 100% violation rate for Plaintiff’s wage statement claim. Plaintiff defines the “Wage Statement Subclass” as “[a]ll current and former employees who work or worked for Defendant in California, during the one year immediately preceding the filing of the complaint through the date of trial.” Compl. ¶ 37. Plaintiff claims that “Defendant issued wage statements which failed to accurately identify the gross wages earned, the total hours worked, the net wages earned, and the correct corresponding number of hours worked at each hourly rate[.]” Id. ¶ 31. Defendant’s wage statements were allegedly inaccurate “[a]s a result of Defendant’s failure to pay . . . non-exempt employees for all hours they were subject to the control of Defendant, including all[] overtime [and] sick pay wages, and Defendant’s failure to pay for meal and rest period premiums at the ‘regular rate of pay[.]’” Id. Based on Plaintiff’s complaint, the Court finds it reasonable to assume that all wage statements for putative subclass members would contain at least some inaccuracies. However, Defendant’s assumption that each putative class member worked at least 41 pay periods and would thus be entitled to maximum penalties of $4,000 each is unsupported. See Moreno v. Ignite Rest. Grp., No. 13-cv-05091-SI, 2014 WL 1154063, at *5 (N.D. Cal. Mar. 20, 2014) (discussing separate calculations for wage statement penalties for employees who did and did not work 41 pay periods); Moppin v. Los Robles Reg’l Med. Ctr., No. 15-cv-1551-JGB, 2015 WL 5618872, at *2 (C.D. Cal. Sept. 24, 2015) (same). Defendant has not provided evidence that any putative Wage Statement Subclass member worked at least 41 pay periods. Plaintiff himself only worked for Defendant for 40 weeks, from February 27, 2023 until his separation from statement violations based on his allegations. See Compl. ¶ 16. As noted above, Defendant has provided evidence that it employed approximately 160 proposed putative class members between December 19, 2022 – one year before Plaintiff brought the claim in Superior Court – and mid- January 2024, and that at least 94 non-exempt employees separated from their employment with Defendant between January 1, 2021 and mid-January 2024. First Bergstrom Decl. ¶ 9; Second Bergstrom Decl. ¶ 10. It strains logic to assume that, with the sole exception of Plaintiff, every other member of the Wage Statement Subclass remained employed with Defendant for 41 pay periods. Defendant has thus failed to plausibly show an amount in controversy for wage statement violations of $640,000. The Court considers the amount in controversy for the wage statement violation claim to be unestablished. The proposed $640,000 amount is unsupported, and the Court does not have evidence or reasonable inferences before it that would allow it to determine the amount in controversy is some other amount. E. Waiting Time Penalties California Labor Code Sections 201 and 202 require employers to pay all wages owed within 72 hours when employees resign, and immediately where the employee is discharged or laid off. Cal. Lab. Code §§ 201–202. When an employer willfully fails to timely pay wages upon separation, the employee is entitled to be paid her normal wages for every day the wages are late, up to a maximum of 30 days. Cal. Lab. Code § 203. To establish the amount in controversy for waiting time penalties, Defendant multiplies $32.42 average hourly wage at time of separation × 8 hours per day × 30 days × 93 former alleged potential class members. Opp’n at 16. Plaintiff argues Defendant lacks justification for assuming a 100% penalty recovery for the full 30-day period for each class member. Mot. at 14–16. However, Plaintiff explicitly alleges that “Defendant [is] liable to the Waiting Time Subclass for waiting time penalties amounting to thirty (30) days wages for Plaintiff and the Waiting Time Subclass . . .” Compl. ¶ 77. Plaintiff further alleges that due to “Defendant’s failure to pay all overtime, sick pay wages, and meal and rest period premiums at the ‘regular rate of pay,’ Defendant also failed and continues to fail to pay ¶ 34. Plaintiff defines the “Waiting Time Penalty Subclass” to include:

All former non-exempt hourly employees who work or worked for Defendant in California, and who left their employment during the three years immediately preceding the filing of the Complaint through the date of trial. Id. ¶ 37. The Court finds the Complaint clearly alleges that Defendant owes all members of the Waiting Time Subclass waiting time penalties for the full 30-day period. This is further supported by other allegations of Plaintiff’s complaint, which indicate that at least some wages were never paid to all employees. See, e.g., Compl. ¶¶ 18 (alleging “Defendant’s uniform failure to include all forms of compensation/remuneration . . . in calculating the ‘regular rate of pay’ for purposes of overtime compensation”), 22 (alleging failure “to provide . . . employees the legally required paid sick days at the legal rate pursuant to Labor Code §§ 246(a),(b) . . .”). Given Plaintiff’s allegations, it is reasonable to assume that all non-exempt employees would have been owed at least some wages upon their departure. Plaintiff does not contend that Defendant paid any employee the alleged unpaid wages at any point in the 30 days after their departure. Defendant provided evidence that at least 94 non-exempt employees separated from their employment with Defendant between January 1, 2021 and mid-January 2024, all of whom worked on a full-time basis for Defendant during that period (Second Bergstrom Decl. ¶ 10), that 93 of those employees had been separated for at least 30 days as of February 1, 2024 (id. ¶ 11), and that the average rate of pay at the time of separation was $32.42. (First Bergstrom Decl. ¶ 8). Although the rate of pay at the time of departure likely varied somewhat for each employee within the subclass, the Court finds the figures Bergstrom provided in her declarations reasonable for calculating these penalties. Using these figures yields an amount in controversy of $723,614 in alleged waiting time penalties. Accordingly, the Court considers Defendant’s estimate of $723,614 in alleged waiting time penalties as part of the amount in controversy for CAFA jurisdiction purposes. F. Failure to Pay Sick Time and Failure to Reimburse Necessary Business Expenses (Fourth and Seventh Causes of Action) Plaintiff alleges Defendant failed to provide putative class members paid sick days at the expenditures, such as expenses for use of personal cell phones used for work calls. Compl. ¶¶ 22– 24, 35–36, 60–65, 78–81. Defendant did not provide an estimate of the amount in controversy for these claims in its notice of removal or opposition but concludes these claims “further increase the amount in controversy beyond the jurisdictional minimum of $5,000,000.” Notice of Removal ¶ 69–70. Accordingly, the Court does not estimate of the amount in controversy for these claims. G. Attorneys’ Fees In determining whether CAFA’s amount-in-controversy requirement is satisfied, the district court “must include future attorneys’ fees recoverable by statute or contract.” Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 2018). “The defendant retains the burden, however, of proving the amount of future attorneys’ fees by a preponderance of the evidence.” Id. at 788. In its notice of removal, Defendant claims an additional amount in controversy of at least $1,254,471, based on 25% of the $5,017,884 Defendant calculated in alleged overtime violations, waiting time penalties, wage statement penalties, and meal and rest period violations. Notice of Removal ¶ 72. Plaintiff does not dispute the 25% attorneys’ fee benchmark but contends that only his Labor Code Section 226 and overtime claims expressly authorize an award of attorneys’ fees. Mot. at 17. However, Plaintiff has requested attorneys’ fees “on all causes of action” pursuant to California Code of Civil Procedure § 1021.5, which authorizes attorneys’ fees “in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on . . . a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” Compl., Prayer for Relief ¶ 14 (“On all causes of action, for attorneys’ fees and costs as provided by Labor Code §§ 218.5, 226, 1194, Code of Civil Procedure § 1021.5”); Cal. Civ. Proc. Code § 1021.5. Thus the fee calculation may be based on the total pre-fee amount in controversy. As discussed above, the Court finds Defendant has demonstrated the amount in 1 Court finds Defendant has failed to show the amount in controversy for the overtime claims; has 2 shown that the amount in controversy for the meal period and rest period violations counted 3 together is at least $1,442,899, but has not shown it is any greater than that; has failed to show the 4 amount in controversy for the wage statement claims; has shown an amount in controversy of 5 $723,614 in alleged waiting time penalties. Based on these figures and a 25% fee calculation, the 6 attorneys’ fees in controversy total $541,628. 8 “[T]he defendant seeking removal bears the burden to show by a preponderance of the 9 evidence that the aggregate amount in controversy exceeds $5 million[.]” Ibarra, 775 F.3d at 10 1197. Here, Defendant failed. It showed by a preponderance of the evidence that the total amount 11 in controversy, including attorneys’ fees, is $2,708,141. As this is below the $5 million threshold 12 required for original federal jurisdiction under CAFA, the Court finds that it does not have 13 jurisdiction to hear this case. Accordingly, Plaintiff's motion to remand to the Superior Court of 14 Contra Costa County is GRANTED. The Clerk of Court shall remand this case promptly to the 15 Superior Court. a 16 IT IS SO ORDERED.

Datea: August 16, 2024 19 AY \ - THOMAS S. HIXSON 20 United States Magistrate Judge 21 22 23 24 25 26 27 28