Stoff v. Wells Fargo Bank, N.A.

• Court: District Court, S.D. California
• Decided: November 22, 2021
• Docket: 3:21-cv-00793
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL STOFF, an individual, on ) Case No.: 3:21-cv-00793-BEN-KSC behalf of himself and all others similarly ) 12 ORDER: situated, )

13 ) (1) DENYING WITHOUT Plaintiff, ) PREJUDICE DEFENDANT’S 14 v. ) MOTION TO STRIKE, OR IN 15 ) THE ALTERNATIVE, DISMISS WELLS FARGO BANK, N.A., a ) THE CLASS ALLEGATIONS IN 16 Delaware corporation; and DOES 1 ) PLAINTIFF’S SECOND through 10, 17 ) AMENDED COMPLAINT; Defendant. ) 18 (2) DENYING WITHOUT ) PREJUDICE MOTION TO 19 ) DISMISS PLAINTIFF’S ) 20 SECOND AMENDED ) COMPLAINT; 21 ) ) (3) GRANTING PLAINTIFF’S 22 ) MOTION FOR REMAND; and 23 ) (4) DENYING WITHOUT 24 ) PREJUDICE REQUESTS FOR ) JUDICIAL NOTICE 25 ) ) [ECF Nos. 3, 4, 12, 15, 16, 18, 19, 20, 26 ) 22] 27 28 1 I. INTRODUCTION 2 Plaintiff Michael Stoff, an individual, and on behalf of himself and all others 3 similarly situated (“Plaintiff”), brings this action against Defendant Wells Fargo Bank, 4 N.A., a Delaware corporation (“Defendant”) alleging violations of California’s Consumer 5 Credit Reporting Agencies Act, CAL. CIV. CODE § 1785.1 et seq. (the “CCRAA”). ECF 6 No. 1-2. 7 Before the Court are the following motions: (1) Defendant’s Motion to Dismiss the 8 Second Amended Complaint (the “SAC”), ECF No. 3; (2) Defendant’s Motion to Strike 9 the SAC, ECF No. 4; (3) Defendant’s Request for Judicial Notice, ECF No. 5; and (4) 10 Plaintiff’s Motion to Remand to State Court, ECF No. 12. The Motions were submitted 11 on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) 12 of the Federal Rules of Civil Procedure. ECF Nos. 21, 22. 13 After considering the papers submitted, supporting documentation, and applicable 14 law, the Court (1) GRANTS Plaintiff’s Motion to Remand, ECF No. 12; (2) DENIES 15 without prejudice Defendant’s Motion to Dismiss the SAC, ECF No. 3; (3) DENIES 16 without prejudice Defendant’s Motion to Strike the SAC, ECF No. 4; (4) DENIES both 17 parties’ requests for judicial notice, ECF Nos. 5, 12. 18 II. BACKGROUND 19 A. Statement of Facts 20 Plaintiff alleges that “[h]e is an investor and entrepreneur and . . . relies on his credit, 21 borrowing ability and cash flow for the deals in which he is involved, including real estate 22 endeavors.” SAC, ECF No. 1-2 at 142:3-4. He alleges that he “is a ‘consumer’ as defined 23 by Cal. Civ. Code § 1785.3(b).” Id. at 142:8. He further pleads on that in 2015, he obtained 24 a mortgage from Defendant for the purchase of a single-family home in the city and county 25 of San Diego, California (the “Mortgage”). Id. at 142:9-10, 148:22-24. “Since that time, 26 Wells Fargo has continued to service Plaintiff’s mortgage,” which “is federally backed by 27 Freddie Mac and now owned by that entity.” Id. at 142:10-11. As the mortgage servicing 28 agent, Defendant has routinely reported the loan status of Plaintiff’s mortgage to the major 1 credit reporting agencies including Experian, Equifax, and TransUnion since the beginning 2 of the mortgage. Id. at 142:11-14. 3 In March 2020, Plaintiff and his wife were looking to buy a new home and seeking 4 a mortgage to finance the purchase. SAC, ECF No. 1-2 at 148:15-17. Plaintiff pleads that 5 he and his wife’s credit score, as well as the contents of any consumer report provided by 6 a credit reporting agency (“CRA”) to a potential lender “were necessarily an important 7 aspect of the home-buying process.” Id. at 148:17-19. He alleges that “[t]he higher the 8 credit score, and the more favorable the consumer report, the more likely a consumer is to 9 qualify for a mortgage and to obtain a more favorable interest rate on that mortgage.” Id. 10 at 148:19-21. 11 In early April 2020, following the COVID-19 pandemic, he requested and received 12 a three (3) month forbearance of his mortgage obligations under the Coronavirus Aid, 13 Relief, and Economic Security Act, 15 U.S.C. § 9001, et seq. (the “CARES Act”).1 SAC, 14 ECF No. 1-2 at 140:23-25, 142:9-14. At the time of this request, Plaintiff alleges he was 15 current on his Mortgage, meaning that even if Defendant granted the request, and Plaintiff 16 suspended his Mortgage payments, Defendant would be required to continue reporting 17 Plaintiff’s mortgage as current. Id. at 149:7-9. Despite his forbearance request, Plaintiff 18 alleges that “rather than report the Mortgage as ‘current[,]’ [Defendant] added a ‘comment 19 code’ that the industry recognizes to signify that the loan is ‘in forbearance.’” Id. at 149:10- 20 19. 21 Plaintiff alleges that “[i]n early May 2020, [he] received an email from the credit 22 monitoring service, Credit Karma, notifying him that his credit score had fallen nearly 40 23 points.” Initial Complaint, ECF No. 1-2 at 7, ¶ 37; SAC, ECF No. 1-2 at 149:15-16. 24

25 1 Section 4021 of the CARES Act amends section 623(a)(1) of the Fair Credit Reporting Act (the “FCRA”), see 15 U.S.C. §§ 1681s-2(a)(1) by adding subdivision “F” 26 governing “Reporting Information during COVID-19 Pandemic.” Other provisions of 27 the CARES Act, including but not limited to sections 4022 and 4023, require mortgage servicers to grant forbearance requests for individuals experiencing financial hardship due 28 1 “Fearful of how that would affect his ability to obtain a new mortgage and other consumer 2 loans in the future, and the higher interest rates and fees he would be required to pay for 3 such loans (such as a credit card, refinance, or other consumer credit instruments), 4 [Plaintiff] pulled a copy of his Equifax credit report.” Id. at 149:16-19. “He then 5 discovered that Wells Fargo violated the CARES Act’s reporting requirements by reporting 6 that his Mortgage was ‘in forbearance’ rather than ‘current,” which he alleges “negatively 7 and materially impacted his credit score with CreditKarma.” Id. at 149:20-22. 8 Plaintiff alleges that “[a]s a direct and proximate result of Wells Fargo’s misconduct, 9 Plaintiff lost the ability to obtain a penalty-free forbearance on his Mortgage and paid his 10 Mortgage for at least 3 months and potentially as many as 12 months when he should have 11 been entitled to avoid those mortgage payments without penalty.” Id. at 150:3-6. He 12 further pleads that “Defendant’s misconduct negatively affected his ability to obtain credit, 13 including requiring him to agree to and pay higher rates and fees required by lenders in 14 order for Mr. Stoff to obtain credit going forward.” ECF No. 1-2 at 142:5-7. Additionally, 15 he incurred more than $300.00 in legal expenses. Id. at 149:23-25. 16 The Fair Credit Reporting Act prohibits a person from “furnish[ing] any information 17 relating to a consumer to any consumer reporting agency if the person knows or has 18 reasonable cause to believe that the information is inaccurate.” 15 U.S.C. § 1681s- 19 2(a)(1)(A). The CARES Act Amendment defines an “accommodation” as “an agreement 20 to defer 1 or more payments, make a partial payment, forbear any delinquent amounts, 21 modify a loan or contract, or any other assistance or relief granted to a consumer who is 22 affected by the coronavirus disease 2019 (COVID-19) pandemic” from January 31, 2020 23 through the later of 120 days after March 27, 2020 or “the date on which the national 24 emergency concerning . . . COVID-19 . . . terminates.” 15 U.S.C. § 1681s-2(a)(1)(F)(i)(I)- 25 (II). It further provides that “if a furnisher makes an accommodation with respect to 1 or 26 more payments on a credit obligation or account of a consumer, and the consumer makes 27 the payments or is not required to make 1 or more payments pursuant to the 28 accommodation, the furnisher shall . . . . report the credit obligation or account as current.” 1 15 U.S.C. § 1681s-2(a)(1)(F)(ii)(I). 2 B. Procedural History 3 On June 18, 2020, Plaintiff filed his original complaint against Defendant, 4 commencing Michael Stoff v. Wells Fargo Bank, N.A. and DOES 1-10, San Diego Superior 5 Court Case No. 37-2020-00020808-CU-BTCTL (the “State Court Action”). ECF No. 1-2 6 at 2-13 (the “Initial Complaint”). On June 24, 2020, Plaintiff served Defendant with the 7 Summons and Initial Complaint. ECF No. 12-1 at 9:17-18. 8 On August 24, 2020, Defendant filed a demurrer to the complaint, which the San 9 Diego Superior Court sustained on January 8, 2021, while granting leave to amend. ECF 10 No. 1-2 at 24, 165; ECF No. 12-1 at 9:17-19; ECF No. 18 at 9:12-13. Accordingly, on 11 January 19, 2021, Plaintiff filed a First Amended Complaint (the “FAC”). ECF No. 1-2 at 12 97; ECF No. 18 at 9:13-14. On February 22, 2021, Defendant filed a Demurrer to the FAC 13 as well. ECF No. 1-2 at 110; ECF No. 18 at 9:21. Instead of opposing the demurrer, on 14 March 23, 2021, Plaintiff filed the operative Second Amended Class Action Complaint 15 (the “SAC”) for Damages.2 ECF No. 1-2 at 139; ECF No. 18 at 9:21-22. 16 On April 22, 2021, before responding to the SAC, Defendant removed the case to 17 federal court under the Class Action Fairness Act, pursuant to 28 U.S.C. §§ 1441(a), 1446, 18 and 1453(b). ECF No. 1 at 3, ¶ 7. Shortly thereafter, on April 29, 2021, Defendant filed a 19 Motion to Dismiss Plaintiff’s SAC, ECF No. 3, and Strike the Nationwide Class 20 Allegations in Paragraph 62 of the SAC, ECF No. 4, both of which are scheduled to be 21 heard on June 14, 2021 at 10:30 a.m. ECF No. 13 at 2, ¶ 5. That same day, Defendant also 22 filed a Request for Judicial Notice. ECF No. 5. On May 31, 2021, Plaintiff filed an 23 Opposition to the Motion to Dismiss, ECF No. 15; Motion to Strike, ECF No. 16; and 24

25 2 California Code of Civil Procedure section 472(a) allows a party to “amend its pleading once without leave of the court at any time . . . after a demurrer is filed but before 26 the demurrer is heard if the amended complaint . . . is filed and served no later than the date 27 for filing an opposition to the demurrer.” Here, the hearing date on the demurrer to the FAC was scheduled for July 23, 2021 at 11:00 a.m., meaning the deadline to oppose the 28 1 Request for Judicial Notice, ECF No. 17. On June 7, 2021, Defendant replied. See ECF 2 Nos. 19, 20. 3 On May 21, 2021, Plaintiff filed a Motion to Remand pursuant to 28 U.S.C. 4 §1447(c). Motion, ECF No. 12-1 (“Mot.”). On June 7, 2021, Defendant opposed. 5 Opposition, ECF No. 18 (“Oppo.”). On June 14, 2021, Plaintiff replied. Reply, ECF No. 6 22 (“Reply”). 7 On October 20, 2021, Plaintiff also filed a Notice of Recent Decision. ECF No.24. 8 However, on October 21, 2021, Defendant filed an Objection to Plaintiff’s Notice of 9 Recent Decision. ECF No. 25. 10 III. LEGAL STANDARD3 11 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. 12 of Am., 511 U.S. 375, 377 (1994). Consequently, district courts are presumed to lack 13 jurisdiction unless the Constitution or a statute expressly provides otherwise. Stock West, 14 Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). . Generally, federal 15 subject matter jurisdiction exists due to the presence of a federal question, see 28 U.S.C. § 16 1331, or complete diversity between the parties, see 28 U.S.C. § 1332. As pertains to this 17 case, the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453(b) (the “CAFA”),4 18 “‘relaxed’ the diversity requirements for putative class actions.” Canela v. Costco 19 Wholesale Corp., 971 F.3d 845, 850 (9th Cir. 2020) (quoting Dart Cherokee Basin 20 Operating Co., LLC v. Owens, 574 U.S. 81, 84 (2014)). CAFA confers jurisdiction to 21

22 3 Because, as outlined below, the Court determines that it must address the 23 jurisdictional issues first, and upon doing so, should remand the case and refrain from deciding the co-pending motions to dismiss and strike, the Court only addresses the legal 24 standard for a motion to remand. 25 4 CAFA jurisdiction contains a “homestate exception,” which requires federal courts to decline exercising federal jurisdiction where the case involves where the case involves 26 a proposed class where greater than two-thirds of that proposed class and the primary 27 defendant are citizens of the State in which the action was originally filed. 28 U.S.C. § 1332(d)(4). Here, because the parties agree Defendant is not a citizen of California, this 28 1 district courts in any civil action where (1) the matter in controversy exceeds the sum or 2 value of $5,000,000, exclusive of interests and costs, see 28 U.S.C. § 1332(d)(2)(A); (2) 3 the proposed class consists of more than 100 members, see id. § 1332(d)(5)(B); and (3) 4 “the parties are minimally diverse, i.e., any member of a class of plaintiffs is a citizen of a 5 state different from that of any defendant,” see id. § 1332(d)(2)(A). Id. 6 Where a case is filed in state court but qualifies as a case over which the federal 7 court has original jurisdiction, a defendant may remove that case to federal court. 28 U.S.C. 8 § 1441(a). Removal can be accomplished through two routes.5 First, if an initial pleading 9 or summons demonstrates a plausible basis for federal jurisdiction, removal must occur 10 within thirty (30) days of receipt of that initial complaint or summons. 28 U.S.C. § 11 1446(b)(1). Second, where the initial pleading does not demonstrate a plausible basis for 12 federal jurisdiction, the defendant may remove the case within thirty (30) days of receiving 13 a subsequent document—whether an amended pleading, motion, order, discovery request, 14 discovery response, or “other paper”—“from which it may first be ascertained that the case 15 … has become removable.” 28 U.S.C. § 1446(b)(3); see also Roth v. CHA Hollywood 16 Med. Ctr., L.P., 720 F.3d 1121, 1124 (9th Cir. 2013). In determining whether a pleading 17 makes it ascertainable that federal jurisdiction exists so as to trigger one of the thirty (30) 18 day deadlines, “defendants need not make extrapolations or engage in guesswork.” 19

20 5 Normally, where removal is based on a subsequent document (i.e., anything other 21 than the initial complaint), an additional “outside deadline” applies, pursuant to which the “case may not be removed … more than 1 year after commencement of the action, unless 22 the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant 23 from removing the action.” 28 U.S.C. § 1446(c). “However, in a CAFA case, there is no such time limit.” Roth, 720 F.3d at 1124. This is because the CAFA expressly provides 24 that “[a] class action may be removed to a district court of the United States in accordance 25 with section 1446 (except that the 1-year limitation under section 1446(c)(1) shall not apply), without regard to whether any defendant is a citizen of the State in which the action 26 is brought, except that such action may be removed by any defendant without the consent 27 of all defendants.” 28 U.S.C. § 1453(b) (emphasis added). Thus, “[a] CAFA case may be removed at any time, provided that neither of the two thirty-day periods under § 1446(b)(1) 28 1 Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013). Despite 2 this, the statute does require “a defendant to apply a reasonable amount of intelligence in 3 ascertaining removability.” Id. (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 4 206 (2d Cir. 2001)). “Multiplying figures clearly stated in a complaint is an aspect of that 5 duty.” Id. (citing Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 884 (9th Cir. 2010) 6 (affirming the judgment of the district court denying a motion to remand where the 7 defendant “maintained that its notice of removal was timely because it did not become 8 aware that the case met the requirement until Carvalho revealed in her depositions on 9 February 6 and March 4, 2008, that the amount in controversy was at least $12.5 million 10 (i.e., $25,000 times 500 potential plaintiffs)”)). 11 When removing a case, the notice of removal must contain “a short and plain 12 statement of the grounds for removal.” 28 U.S.C. § 1146(a). Consequently, “a defendant’s 13 notice of removal need include only a plausible allegation that the amount in controversy 14 exceeds the jurisdictional threshold.” Dart Cherokee, 574 U.S. at 89. “Evidence 15 establishing the amount is required by § 1446(c)(2)(B) only when the plaintiff contests, or 16 the court questions, the defendant’s allegation.” Id. “In determining the amount in 17 controversy, courts first look to the complaint.” Ibarra v. Manheim Invs., Inc., 775 F.3d 18 1193, 1197 (9th Cir. 2015). In doing so, “the sum claimed by the plaintiff controls if the 19 claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 20 U.S. 283, 289 (1938) (footnote omitted). “Whether damages are unstated in a complaint, 21 or, in the defendant’s view are understated, the defendant seeking removal bears the burden 22 to show by a preponderance of the evidence that the aggregate amount in controversy 23 exceeds $5 million when federal jurisdiction is challenged.” Ibarra, 775 F.3d at 1197 24 (citing Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir. 2013)); see 25 also Ramirez v. Carefusion Res., LLC, No. 18-CV-2852-BEN-MSB, 2019 WL 2897902, 26 at *4 (S.D. Cal. July 5, 2019) (noting that “in light of what is at stake in the litigation, a 27 100% violation rate assumption—that every wage statement during the one-year period 28 violated § 226—is not unreasonable”). 1 Removing a case does not deprive another party “of his right to move to remand the 2 case.” 28 U.S.C. § 1448. “Once a defendant has filed a notice of removal in the federal 3 district court, a plaintiff objecting to removal ‘on the basis of any defect in removal 4 procedure’ may, within 30 days, file a motion asking the district court to remand the case 5 to state court.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996) (citing 28 U.S.C. § 6 1447(c)). 7 Although normally, courts strictly construe the removal statute against removal 8 jurisdiction, see Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 9 1087 (9th Cir. 2009), “no antiremoval presumption attends cases invoking CAFA, which 10 Congress enacted to facilitate adjudication of certain class actions in federal court,” Dart 11 Cherokee, 574 U.S. at 89. Further, “[a] defendant seeking removal has the burden to 12 establish that removal is proper.” Luther v. Countrywide Home Loans Servicing, LP, 533 13 F.3d 1031, 1034 (9th Cir. 2008). “Any doubt about the right of removal requires resolution 14 in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th 15 Cir. 2009). 16 IV. DISCUSSION 17 The Ninth Circuit has held that because federal courts possess limited jurisdiction 18 while the jurisdiction of state courts is “not so limited, . . . [n]o motion, timely or otherwise, 19 is necessary” for district courts to remand when they lack jurisdiction. Polo v. Innoventions 20 Int'l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016); see also 28 U.S.C. § 1447 (requiring 21 district courts to remand a case “[i]f at any time before final judgment it appears that the 22 district court lacks subject matter jurisdiction”). Thus, “federal courts normally must 23 resolve questions of subject matter jurisdiction before reaching other threshold issues.” 24 Potter v. Hughes, 546 F.3d 1051, 1061 (9th Cir. 2008) (citing Sinochem Int’l Co. v. Malay. 25 Int'l Shipping Corp., 549 U.S. 422, 436 (2007)). However, the Supreme Court has given 26 district courts discretion to resolve other issues before a jurisdictional issue where resolving 27 a jurisdictional issue first might prove burdensome. Sinochem, 549 U.S. at 425. Here, 28 although Defendant filed its motions before Plaintiff’s Motion to Remand, the Court 1 considers Plaintiff’s motion first because if the Court lacks jurisdiction, it also lacks the 2 authority to decide Defendant’s motions to dismiss and strike. See, e.g., H.R. ex rel. Reuter 3 v. Medtronic, Inc., 996 F. Supp. 2d 671, 675 n.2 (S.D. Ohio 2014) (noting that the plaintiff’s 4 “motion to remand must be resolved before the motion to dismiss, because if remand is 5 appropriate, then the state court should decide the motion to dismiss”). 6 As outlined below, because the Court determines that Defendant failed to timely 7 remove this matter, it must remand this case. Having determined that it must GRANT 8 Plaintiff’s Motion to Remand, the Court DENIES Defendant’s motions to dismiss and 9 strike the SAC without prejudice given it lacks jurisdiction to rule on those issues. Further, 10 because the Court did not need to take judicial notice of any documents to decide Plaintiff’s 11 Motion to Remand, it DENIES Plaintiff’s Request for Judicial Notice. Similarly, because 12 Defendant’s Request for Judicial Notice was submitted in support of Defendant’s motions, 13 which the Court is denying without prejudice, the Court DENIES Defendant’s Request for 14 Judicial Notice. Finally, Plaintiff submitted a Notice of Recent Decision, to which 15 Defendant objected, but because this filing had no impact on the Court’s ruling and was 16 not considered, the Court disregards this filing. A. Motion to Remand 17 18 Plaintiff argues that the Court should remand this case because Defendant failed to 19 timely remove this case within 30 days of receipt of the Initial Complaint despite having 20 notice the case was removable under the CAFA.6 Mot. at 5:2-9, 13:9-15. He contends 21 that even though the Initial Complaint pled a basis to remove the case, Defendant waited

22 6 Alternatively, Plaintiff contends that even if Defendant could not ascertain from the 23 Initial Complaint that this case qualified for removal, other documents within Defendant’s possession—such as Plaintiff’s September 17, 2020 discovery requests and Defendant’s 24 responses thereto as well as Defendant’s February 23, 2021 Form 10-K filing with the 25 Securities Exchange Commission—revealed that this case qualified for removal. Mot. at 19:20-21:18. Defendant opposes this argument by contending these documents fail to 26 qualify as “other papers” under the removal statute, and even if they did, they did not reveal 27 a basis for removal. Oppo. at 12:14-17:1. The Court need not address whether these other documents can or did demonstrate a basis for removal given its conclusion that the Initial 28 1 ten (10) months to do so. Mot. at 5:2-9, 13:9-15. In its Opposition, Defendant concedes 2 that “[t]he Initial Complaint met CAFA’s requirements of (1) minimal diversity and (2) a 3 proposed class of at least 100 members.” Oppo. at 10:10-11. However, Defendant 4 opposes by arguing that “contrary to Stoff’s arguments, the four corners of the Initial 5 Complaint did not place more than $5,000,000.00 in controversy.” Id. at 10:11-14 (citing 6 Kuxhausen, 707 F.3d at 1139 (citing 28 U.S.C. § 1332(d)) (elements for CAFA removal)). 7 Defendant argues that the Initial Complaint (1) “alleged a class consisting of ‘hundreds, 8 if not thousands’ of persons”; (2) “sought to include in the proposed class certain 9 borrowers whose mortgage loans were reported to ‘a credit reporting agency’—singular— 10 in alleged violation of the CCRAA”7; (3) failed to allege Plaintiff “sought to recover 11 $5,000 for multiple statutory violations on behalf of each proposed class member”; and 12 (4) “far from alleging three months’ worth of violations ‘based on the [purported] CARES 13 Act forbearance range of 3 to 12 months,’” only pled that Plaintiff “had a forbearance for 14 one month before discovering the alleged inaccurate credit reporting on which he bases 15 his suit.” Id. at 11:2-27 (citing Initial Complaint, ECF No. 1-2 at 5-8, ¶¶ 21, 37-39, 42- 16 43). Based upon these arguments, Defendant contends that “[t]he Initial Complaint thus 17 only put $1,000,000 in statutory damages in controversy (calculated as 200 class members, 18 multiplied by one violation, multiplied by $5,000 in statutory damages under the 19 CCRAA), $4,000,000 shy of CAFA’s amount in controversy requirement.” Id. at 11:28- 20 12:4 (citing Kuxhausen, 707 F.3d at 1140 (holding “‘hundreds,’ by definition, means at 21 least 200”)) (citations omitted). 22 In his reply brief, Plaintiff points out that (1) Defendant incorrectly applies the 23 minimum number of class members but the maximum amount of penalties, Reply at 24 11:21-26, (2) his Initial Complaint not only alleged that “Defendant reported his current 25 7 Contrary to Defendant’s argument, Plaintiff’s Initial Complaint alleges that “[u]pon 26 information and belief,” Defendant “furnished incomplete or inaccurate information to 27 Experian Information Solutions, Inc. … that the mortgage was in forbearance” as well as to Trans Union, LLC and Equifax, Inc. Compl., ECF No. 1-2 at 6, ¶¶ 25, 29, 33. Thus, 28 1 mortgage as in forbearance to three separate … CRAs” but also “even identified each 2 CRA by name,” Reply at 6:12-14 (citing Initial Complaint ¶¶ 25 – 36); and (3) the Initial 3 Complaint pled that the CARES Act “mandated banks [to] provide mortgage forbearances 4 of up to 360 days,” and that Plaintiff “applied for” and later “received a 3-month 5 forbearance of his mortgage obligations” with Defendant, id. at 6:14-16 (citing Initial 6 Complaint, ECF No. 1-2 at 3, ¶¶ 2, 21). He elaborates that “[t]he lawsuit was brought on 7 behalf of a class that likely numbered in the thousands, each of whom suffered multiple 8 violations and were entitled to damages of $5,000 per violation—plus attorneys’ fees.” 9 Id. at 7:17-21. Thus, “[w]ithout more, Defendant could have (and should have) ‘plausibly 10 alleged’ that the amount in controversy had been met based entirely upon the allegations 11 appearing within the ‘four corners’ of the Initial Complaint.” Id. at 7:21-8:2. According 12 to him, “[t]he only ‘fair reading’ of the Initial Complaint is that the maximum recovery 13 for Plaintiff and the class was well in excess of $5,000,000.00 from the get-go.” Id. at 14 7:15-18 (citing Rodriguez, 728 F.3d at 978-982). 15 A defendant has 30 days to remove a civil action after receipt of a pleading setting 16 forth the claim for relief upon which a removable action is based. 28 U.S.C. § 1446(b). 17 As stated, the parties agree the Initial Complaint demonstrated minimal diversity and only 18 dispute whether it showed the CAFA’s $5 million amount in controversy had been 19 satisfied. Mot. at 6:10-7:3, 13:23-14:2; Oppo. at 10:10-14. Thus, the issue of whether 20 Defendant timely removed this matter hinges solely on whether Defendant could ascertain 21 the amount in controversy exceeded $5 million based on the Initial Complaint. In doing 22 so, the Court analyzes whether the Initial Complaint, FAC, and/or SAC demonstrated a 23 basis for removal given (1) each contained varied (albeit similar) allegations and (2) the 24 subsequent complaints could qualify as an amended pleading creating a basis for removal 25 under 28 U.S.C. § 1446(b)(3). However, all three complaints pled the same categories of 26 damages—actual damages, statutory punitive damages, attorney’s fees, and costs— 27 without specifying exact amounts sought for each class member. See Initial Complaint, 28 ECF No. 1-2 at 11; FAC, ECF No. 1-1 at 106; SAC, ECF No. 1-2 at 149, 156. 1 “Where … a plaintiff’s state court complaint does not specify a particular amount 2 of damages, the removing [party] bears the burden of establishing, by a preponderance of 3 the evidence, that the amount in controversy exceeds the threshold at the time of 4 removal.” Canela v. Costco Wholesale Corp., 971 F.3d 845, 849 (9th Cir. 2020) (internal 5 quotations omitted). The amount in controversy encompasses “all relief a court may grant 6 on that complaint if the plaintiff is victorious.” Chavez v. JPMorgan Chase & Co., 888 7 F.3d 413, 414-15 (9th Cir. 2018). It “is simply an estimate of the total amount in dispute, 8 not a prospective assessment of defendant’s liability.” Lewis v. Verizon Commc’ns., Inc., 9 627 F.3d 395, 400 (9th Cir. 2010). Thus, “[i]n measuring the amount in controversy, a 10 court must assume that the allegations of the complaint are true and that a jury will return 11 a verdict for the plaintiff on all claims made in the complaint.” Korn v. Polo Ralph Lauren 12 Corp., 536 F. Supp. 2d 1199, 1205 (E.D. Cal. 2008). “The ultimate inquiry is what amount 13 is put ‘in controversy’ by the plaintiff’s complaint, not what a defendant will actually 14 owe.” Id. (citing Rippee v. Boston Market Corp., 408 F. Supp. 2d 982, 986 (S.D. Cal. 15 2005); see also Ramirez v. Carefusion Res., LLC, No. 18-cv-02852-BEN-MSB, 2019 WL 16 2897902, at *5 n.3 (S.D. Cal. July 5, 2019) (“[T]o the extent Plaintiff contends the Court 17 cannot assume that she will be successful on her claims for purposes of 18 the amount in controversy requirement, she ‘conflates the amount in controversy with the 19 amount of damages ultimately recoverable.’”) (quoting LaCross v. Knight Transp. Inc., 20 775 F.3d 1200, 1203 (9th Cir. 2015). 21 Because the amount in controversy merely represents a prospective assessment of 22 a defendant’s potential (rather than actual) liability, courts have found it appropriate to 23 calculate the amount in controversy by multiplying the maximum number of class 24 members by the maximum amount of penalties. See, e.g., Rice v. Equifax Info. Servs., 25 LLC, No. 2:09-cv-07864-PSG-EX, 2010 WL 128369, at *2 (C.D. Cal. Jan. 11, 2010) 26 (“Based upon the alleged maximum penalty for each violation and the alleged number of 27 violations, the Complaint alleges an amount in controversy of $495,000.00, satisfying the 28 amount in controversy requirement for diversity jurisdiction.”) (citing Saulic v. Symantec 1 Corp., No. 07-0610, 2007 WL 5074883, at *9 (C.D. Cal. Dec.26, 2007) (holding that a 2 class action alleging a maximum civil penalty of $1,000 for each class member was 3 removable under the CAFA on the basis of a declaration that the class contained more 4 than 5,001 members)). A recent Ninth Circuit decision explained the amount in 5 controversy best: 6 The amount in controversy is simply an estimate of the total 7 amount in dispute, not a prospective assessment of defendant’s liability. In that sense, the amount in controversy reflects the 8 maximum recovery the plaintiff could reasonably recover. 9 An assertion that the amount in controversy exceeds the jurisdictional threshold is not defeated merely because it is 10 equally possible that damages might be less than the requisite 11 amount, as the district court reasoned. Where a removing defendant has shown potential recovery could exceed $5 million 12 and the plaintiff has neither acknowledged nor sought to 13 establish that the class recovery is potentially any less, the defendant has borne its burden to show the amount in 14 controversy exceeds $5 million. 15 16 Arias v. Residence Inn by Marriott, 936 F.3d 920, 927 (9th Cir. 2019) (internal quotations 17 and citations omitted and emphasis added). Accordingly, the Court must use a class size 18 multiplier of at least 1,000 class members. 19 Having established that the amount in controversy encompasses “all relief a court 20 may grant on that complaint if the plaintiff is victorious,” Chavez, 888 F.3d at 414-15, this 21 Court must evaluate whether, based upon the number of violations per class member, class 22 size, and statutory penalties, Defendant should have been able to ascertain removability 23 based upon the Initial Complaint. This decision ends up hinging on the meaning of two 24 words: “if not.” If “if not” means “or,” then, by stating “hundreds, if not thousands,” the 25 class definition meant “hundreds, or thousands.” 26 The Court was unable to locate a case directly discusses the meaning of the idiom 27 “if not.” However, courts may look to the dictionary definition of a word, or in this case, 28 idiom, to help determine the plain meaning of the phrase or word. See, e.g., Niz-Chavez v. 1 Garland, 141 S. Ct. 1474, 1484-85 (2021) (noting that “in the process of discerning … 2 meaning,” courts may “consult grammar and dictionary definitions—along with statutory 3 structure and history … because the rules that govern language often inform how ordinary 4 people understand the rules that govern them”). There appear to be multiple definitions of 5 the idiom “if not” as it can be used in a variety of contexts. For example, the Free 6 Dictionary and Vocabulary.com define “if not” as an adverb that indicates the “possibility 7 of being more remarkable (greater or better or sooner) than.” https://www. 8 thefreedictionary.com/if+not; https://www.vocabulary.com/dictionary/if% 20not. They 9 use the example “will yield 10% if not more” as meaning that something will yield at least 10 10% but possibly more. Id. Taking this into consideration, this Court finds that “if not” 11 means “or,” and “or” is “almost always disjunctive” (i.e., meaning one or the other). 12 Consequently, “hundreds, if not thousands” means “hundreds or thousands.” Because the 13 Court determines the amount in controversy as a “worst case scenario” of damages, see 14 Arias, 936 F.3d at 927, it must use the higher number of “thousands,” which means at least 15 2,000, Kuxhausen, 707 F.3d at 1140. Having established the meaning of “if not,” the Court 16 continues its analysis. 17 1. Number of Violations per Class Member 18 Plaintiff argues that “[i]n order to attempt to justify its untimely removal, Defendant 19 misrepresents the damages sought in this case, as stated in the Initial Complaint.” Mot. at 20 16:5-8. Defendant’s notice of removal acknowledges that the SAC seeks “up to $5,000 21 for each of the alleged thousands of class members.” See NOR, ECF No. 1 at 3, ¶ 7 (citing 22 SAC, ECF No. 1-2 at 18, prayer); Mot. at 16:5-8 (citing same). Plaintiff contends that 23 these calculations, which seek damages of $5,000.00 per class member, “vastly 24 underestimate” the amount of damages Plaintiff seeks because he seeks $5,000.00 for 25 “each violation,” not “each class member,” as each class member likely experienced 26 multiple violations. Mot. at 16:8-11. Plaintiff points out that “[b]ecause Defendant 27 reported a class member’s loan status each month during the forbearance period, each time 28 it did so [Defendant] violated the statute.” Id. at 16:11-12. Thus, he argues that “because 1 each forbearance was for a term of at least three months and potentially as many as 12 2 months and [was reported] to three different [CRAs], each class member is potentially 3 entitled to damages for as many as 36 separate and distinct violations.”8 Mot. at 16:13-18 4 (citing ECF No. 1-2 at ¶ 2 (“The CARES Act, in part, mandated banks provide mortgage 5 forbearances of up to 360 days for individuals who may suffer negative economic effects 6 due to the pandemic.”)). According to Plaintiff, “[t]hese allegations were the same in the 7 Initial Complaint,” which sought “at least $100 and not more than $5,000 for each 8 violation,” as in the SAC.” Id. at 16:18-22. Defendant responds that it could not ascertain 9 removability from the Initial Complaint because “the Initial Complaint nowhere alleges 10 multiple violations per class member.” Oppo. at 11:14-15. 11 The Initial Complaint9 contains no allegations as to how many months the violations 12 occurred. Despite this, the number of months of violations is derived from the statute 13 itself. The CARES Act defines the “duration of the forbearance” as “granted for up to 14 180 days [6 months] ... and … extended for an additional period of up to 180 days at the 15 request of the borrower.” 15 U.S.C. § 9056(b)(2). Thus, an individual can potentially 16 receive a forbearance of up to one year. See id. Another provision of the CARES Act, 17 which amended the FCRA, defines the term “covered period” as beginning on January 31, 18 2020 and ending on the later date of either March 27, 2020, or “120 days after the date on 19 which the national emergency concerning the novel coronavirus disease (COVID-19) 20 outbreak declared by the President on March 13, 2020 under the National Emergencies 21 Act (50 U.S.C. 1601 et seq.) terminates.” 15 U.S.C. § 1681s-2(a)(1)(F)(i)(II); see also 50 22 § U.S.C. 1622(d) (providing that “[a]ny national emergency declared by the President … 23 8 The 36 violations arise out of 3 violations per month (if the Court allows Plaintiff to 24 recover for each time Defendant misreported information to each separate CRA) multiplied 25 by 12 (the potential months the violations occurred). 9 Plaintiff’s FAC alleged that “[a]s a direct and proximate result of [Defendant]’s 26 misconduct, Plaintiff lost the ability to obtain a penalty-free forbearance on his mortgage 27 and paid his mortgage for at least 3 months and potentially as many as 12 months when he should have been entitled to avoid those mortgage payments without penalty.” ECF No. 28 1 and not otherwise previously terminated, shall terminate on the anniversary of the 2 declaration of that emergency”). 3 The resolution of the issue of whether Plaintiff, or any other class member, could 4 recover multiple violations for the same conduct, solely because the wrong information 5 was reported to all three different CRAs or was misreported each month for three to twelve 6 months is not clear to the Court. Compare Kincaid v. Equifax Information Services, LLC, 7 No. 2:20-cv-04033-DSF-KSX, 2020 WL 12188062, at *4 (C.D. Cal. Aug. 3, 2020) (“For 8 the reasons stated above, the Court disagrees with the district court’s conclusion that the 9 transmission of an incorrect credit report by a CRA triggers a new FCRA violation10 by 10 the credit furnisher.”) (original emphasis); Williams v. LVNV Funding, LLC, No. 4:15- 11 CV-2219-KOB, 2017 WL 1331014, at *1 (N.D. Ala. Apr. 11, 2017) (holding that even 12 though the plaintiff was “correct that each violation of the FCRA is a separate violation,” 13 he was “not entitled to recover for the same injury, even if two different violations could 14 be said to have caused that injury” because even though his claims against the CRAs 15 stemmed from separate conduct, “the relevant inquiry … is not whether the conduct is 16 distinct but whether the injury is distinct”) with Sloane v. Equifax Info. Servs., LLC, 510 17 F.3d 495, 501 (4th Cir. 2007) (allowing recovery for multiple violations because the 18 plaintiff had separate interactions with all three CRAs, and “each agency produced reports 19 with different inaccuracies, and each agency either corrected or exacerbated these 20 mistakes independently of the others” causing “discrete injuries independent of those 21 caused by the other credit reporting agencies”). 22 The Court finds that (1) the Initial Complaint alleged a potential class of “hundreds, 23 if not thousands,” Initial Complaint, ECF No. 1-2 at 8, ¶ 43; (2) the Initial Complaint pled 24 that Plaintiff’s information was reported incorrectly to all three CRAs, id. at 6, ¶¶ 25-33; 25 10 Although this case involves the CCRAA, and not the FCRA, because the CCRAA 26 is substantially based on the FCRA, “judicial interpretation of the federal provisions is 27 persuasive authority and entitled to substantial weight when interpreting the California provisions.” Olson v. Six Rivers Nat’l Bank, 111 Cal. App. 4th 1, 12 (2003) (citing Kahn 28 1 (3) although the Initial Complaint did not explicitly allege each class member was entitled 2 to recover $5,000.00 for multiple violations per class member, that issue is an issue of law, 3 and the Court can determine that by reference to the applicable statutes; and (4) even 4 though the Initial Complaint alleges a forbearance of only one month before discovery of 5 the allegedly inaccurate reporting information, if Defendant continued to report that 6 information incorrectly in future months, additional violations might be appropriate. 7 However, the Court evaluates whether the Initial Complaint satisfied the amount in 8 controversy requirement based on one violation per class member because whether 9 multiple violations per class member is authorized in this case is an issue of fact not readily 10 clear to the Court at this stage of litigation. Further, as set forth below, the Court need not 11 assume multiple violations per class member given one violation per class member can 12 still satisfy the amount in controversy. 13 2. Amount of Damages 14 Plaintiff argues that “[u]sing $5,000.00 per violation as the basis for calculating 15 class-wide damages, it would require 1,000 violations to reach CAFA’s threshold of 16 $5,000,000.00.” Mot. at 15:14-16. With his assumption of “the minimum of 3 violations 17 per class member (based on the CARES Act forbearance range of 3 months to 12 months), 18 and the fact that Defendant reported the forbearance to at least three different Credit 19 Reporting Agencies (Initial Complaint at ¶¶ 25-36), there would only need to be 112 class 20 members (in addition to Plaintiff) to overcome the $5,000,000.00 threshold of CAFA.” 21 Mot. at 15:16-21. Defendant responds that “[t]his theory involves [Plaintiff] ‘assuming’ 22 three months’ worth of reporting in violation of the CCRAA, along with imposition of a 23 $5,000 penalty per month across each of the three credit reporting agencies [Defendant] 24 furnishes information to (112 [class members] x $5,000 [penalty] x 3 months [penalty 25 duration] x 3 [# of ] CRAs = $5,040,000).” Oppo. at 11:10-14 (citing Mot. at 15). 26 However, Defendant argues “[t]he Initial Complaint … did not specify the total amount of 27 28 1 damages sought on behalf of the proposed class,”11 and “[i]nstead, … vaguely sought 2 ‘actual damages, if any,’ along with ‘statutory and punitive damages … in the amount of 3 at least $100 and not more than $5,000 for each violation[.]’” Id. at 10:24-28 (citing Initial 4 Complaint, at Prayer for Relief (emphasis added)). As the Court has already determined 5 that it will not consider multiple violations per class member, it disregards Plaintiff’s 6 calculations which rely upon multiple violations per class member. 7 Plaintiff sues under California Civil Code section § 1785.25(a) of the CCRAA, 8 which prohibits a person from furnishing “information on a specific transaction or 9 experience to any consumer credit reporting agency if the person knows or should know 10 the information is incomplete or inaccurate.” See Initial Complaint, ECF No. 1-2 at 9-10, 11 ¶ 54. Plaintiff pursues damages for violation of California Civil Code section 1785.31, 12 which sets forth damages as a result of a violation of any provision of that title, including 13 section 1785.25(a).12 Id. at 11, ¶ d. In opposing remand, Defendant argues that “the Initial 14 Complaint nowhere alleged the amount [Plaintiff] otherwise sought to recover for 15 purported ‘actual damages’ or attorneys’ fees, much less that such amounts—even if 16 combined with statutory damages—somehow met CAFA’s amount in controversy 17 requirement.” Oppo. at 11:5-8. Thus, Defendant argues that it “was therefore not required 18

19 11 The Court notes that the SAC, like the Initial Complaint, also did not “specify the total amount of damages sought,” yet, Defendant still found removal appropriate on the 20 basis of the SAC. Thus, the Court rejects this argument as creating a basis to argue that 21 removal was not ascertainable based on the Initial Complaint. 12 Although certain provisions of the CCRAA are preempted by the FCRA, the Ninth 22 Circuit has expressly held that the damages provisions at issue in this case, namely 23 CAL. CIV. CODE § 1785.31, are not preempted by the FCRA. Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1173 (9th Cir. 2009); see also Oya v. Wells Fargo Bank, 24 N.A., No. 3:18-CV-01999-H-BGS, 2018 WL 5761486, at *4 (S.D. Cal. Nov. 2, 2018) 25 (Huff, J.) (holding that the same provisions are not preempted by the FCRA); 15 U.S.C. § 1681t(b)(1)(F)(ii) (providing that “[n]o requirement or prohibition may be imposed under 26 the laws of any State …. with respect to any subject matter regulated under section 1681s- 27 2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies, except that this paragraph shall not apply …. with respect to 28 1 to remove the Initial Complaint, and its notice of removal was timely.” Id. at 11:9-13 2 (citing Kuxhausen, 707 F.3d at 1140 (defendant not required to “make extrapolations or 3 engage in guesswork” and need only “multiply[] figures clearly stated in the complaint” to 4 determine removability)). 5 As to statutory punitive damages, the CCRAA provides that in addition to actual 6 damages, a consumer may recover “[p]unitve damages of not less than one hundred dollars 7 ($100) nor more than five thousand dollars ($5,000) for each violation as the court deems 8 proper.” CAL. CIV. CODE § 1785.31(a)(2)(B). Because the Court has established it may 9 use the maximum possible penalties when calculating the amount in controversy, it uses 10 the higher amount of $5,000.00 when calculating whether the Initial Complaint made 11 removability ascertainable. 12 As to actual damages, the CCRAA provides that “[a]ny consumer who suffers 13 damages as a result of a violation of this title by any person may bring an action in a court 14 of appropriate jurisdiction against that person to recover” actual damages, which include 15 “costs, loss of wages, attorney’s fees and, when applicable, pain and suffering.” CAL. CIV. 16 CODE § 1785.31(a)(2)(A); see also Grigoryan v. Experian Info. Sols., Inc., 84 F. Supp. 3d 17 1044, 1091 (C.D. Cal. 2014) (“Under the CCRAA, Grigoryan can recover actual damages 18 and punitive damages of not less than $100 and not more than $5,000 per willful 19 violation.”). The CCRAA requires proof of actual damages for a plaintiff to recover. See, 20 e.g., Duarte v. J.P. Morgan Chase Bank, No. 2:13-cv-01105-GHK-MANX, 2014 WL 21 12561052, at *3 (C.D. Cal. Apr. 7, 2014) (noting that “a plaintiff cannot recover under the 22 CCRAA without proving actual harm”); see also Trujillo v. First Am. Registry, Inc., 157 23 Cal. App. 4th 628, 638-39 (2007), disapproved of on other grounds by Connor v. First 24 Student, Inc., 5 Cal. 5th 1026 (2018) (“Because Trujillo and Gradie suffered no actual 25 damage, plaintiffs’ CCRAA cause of action fails as a matter of law.”). 26 Here, Plaintiff fails to plead any amounts for actual damages, leaving Defendant and 27 the Court with no basis for calculation for compensatory damages, lost wages, and/or pain 28 and suffering. See generally Initial Complaint. However, under the CCRAA, actual 1 damages include amounts for attorney’s fees and costs. While neither party provides 2 information as to incurred costs, the filing fee for a civil complaint in the San Diego 3 Superior Court is set by statute and is $1,435.00 in this case.13 Further, while neither party 4 provides information as to attorney’s fees,14 as Plaintiff points out, “[f]or more than two 5 decades, the Ninth Circuit has set the ‘benchmark for an attorneys’ fee award in a 6 successful class action [at] twenty-five percent of the entire common fund.’” In re Wells 7 Fargo & Co. S’holder Derivative Litig., 445 F. Supp. 3d 508, 519 (N.D. Cal. 2020), aff’d, 8 845 F. App’x 563 (9th Cir. 2021) (quoting Williams v. MGM-Pathe Commc’ns Co., 129 9 F.3d 1026, 1027 (9th Cir. 1997)). Additionally, it is well established that courts should 10 consider attorney’s fees recoverable by statute when calculating the amount in controversy. 11 Arias, 936 F.3d at 922 (citing Fritsch, 899 F.3d at 794). Thus, once the Court calculates 12 Plaintiff’s total damages, attorney’s fees may be calculated as twenty-five percent (25%) 13 of that amount. Plaintiff points out that this means “that in order to reach the $5,000,000 14 threshold the Initial Complaint need only assert damages in the amount of $4,000,000.” 15 Mot. at 16:24-17:6. 16 In sum, the relevant damages in this case include a penalty of $5,000.00 per class 17 member plus actual damages along with attorney’s fees that are twenty-five percent (25%) 18 of those penalties and a one-time cost for a $1,435.00 filing fee. 19

20 13 The California Government Code indicates that the applicable filing fee for the San 21 Diego Superior Court at the time Plaintiff filed suit would have been $1,435.00. See CAL. GOV’T CODE §§ 70611, 70602.5(a), 70602.6, § 70616(e). The Court takes judicial notice, 22 sua sponte, of the fact that the California Government Code sets a filing fee of $1,435.00 23 for a complex civil unlimited case. See FED. R. EVID. 201(b)(1)-(2) (providing that at any stage of a proceeding, courts may take judicial notice of (1) facts not subject to reasonable 24 dispute and “generally known within the trial court’s territorial jurisdiction” and (2) 25 adjudicative facts, which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”). 26 14 Plaintiff’s FAC, but not his Initial Complaint, indicates he incurred more than 27 $300.00 in legal expenses. ECF No. 1-2 at 149:23-25. Because Plaintiff provided no evidence as to these costs, and the Court examines whether removability could be 28 1 3. Class Size and Definition 2 Plaintiff argues that the Initial Complaint put Defendant on notice that CAFA’s $5 3 million amount in controversy requirement was triggered because the class definition, like 4 the class definition of the SAC, alleged the class consisted of “hundreds, if not thousands” 5 of class members. Mot. at 15:5-12. Defendant responds that on the contrary, the Initial 6 Complaint, “far from putting in controversy over $5,000,000, … plead a class of zero 7 persons” because it limited itself to “borrowers ‘in the State of California whose accounts 8 were current, who received a forbearance after March 27, 2020, and whose account was 9 not reported as ‘current’ to a credit reporting agency.’” Oppo. at 10:15-19 (citing Initial 10 Complaint, ¶ 43). Defendant argues that because its “policy was to report loans in 11 forbearance as ‘current’ where the loans were in fact current,” no loans could have been 12 reported as “not current.”15 Id. at 10:20-22, 14:28, 15:27-28. In other words, because its 13 policy was to report loans in forbearance as current (rather than reporting them as “in 14 forbearance”), there can be no violations creating a class. Id. Further, Defendant also 15 points out that “the Initial Complaint alleged a class consisting of ‘hundreds, if not 16 thousands’ of persons.” Id. at 11:18-22 (citing Initial Complaint at ¶¶ 42-43 (emphasis 17 added)). Plaintiff concedes that if the Court used a minimum possible recovery of a class 18 size of hundreds coupled with potential damages of $100.00 per class member, this case 19 would not have been removable. Reply at 8:26-28. 20 Defendant argues that it was not until the SAC “sought to represent a nationwide 21 15 Defendant argues that Plaintiff likely amended his class allegations in response to 22 this information revealed during discovery. Oppo. at 10:22-23. However, the issue of 23 whether the class is a class of zero due to Defendant’s policies goes to the merits and heart of this case and is not appropriate for determination on a motion to remand, where the 24 Court must assume the truth of the allegations in the complaint. See, e.g., Steel Valley 25 Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (noting that in ruling on a motion to remand, a “district court must focus on the plaintiff’s complaint at 26 the time the petition for removal was filed” and “assume as true all factual allegations in 27 the complaint”) (citing Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983), cert. denied, 464 U.S. 1039, (1984)). Thus, the Court refrains from ruling on this 28 1 class of persons, rather than only a proposed California class” that it ascertained 2 removability. Oppo. at 5:2-6, 9:23-27 (emphasis added). In examining the timeliness of 3 Defendant’s removal, the Court examines the class allegations in the Initial Complaint, 4 FAC, and SAC but finds the Initial Complaint and FAC pled a class size “hundreds, if not 5 thousands,” while the SAC pled a class of “thousands, if not millions”: 6 Complaint FAC SAC (June 18, 2020): (January 19, 2021): (March 23, 2021): 7 All mortgagees with a All mortgagees with a All mortgagees with a 8 mortgage in the State mortgage in the State mortgage in the United of California whose of California whose States of America 9 accounts were current, accounts were current, whose accounts were 10 who received a who received a current, who received a forbearance after forbearance after forbearance on or after 11 March 27, 2020, and March 27, 2020, and March 27, 2020 and 12 whose account was whose account was whose account was Class: not reported as reported as “in reported as “in 13 “current” to a credit forbearance” (or forbearance” (or 14 reporting agency. something similar) to a something similar) by Compl., ECF No. 1-2 consumer reporting Defendant to a 15 at 8, ¶ 43 (emphasis agency. FAC, ECF consumer reporting 16 added). No. 1-2 at 102, ¶ 45 agency. SAC, ECF No. (emphasis added). 1-2 at 153, ¶ 62 17 (emphasis added). 18 Defendant Defendant Using its automated automatically marked automatically marked processes, Defendant 19 hundreds, if not hundreds, if not automatically marked 20 thousands, of thousands, of many thousands, if not mortgages in the state mortgages in the state millions, of current 21 of California as being of California as being mortgages as being “in 22 in “forbearance” rather in “forbearance” rather forbearance” rather Numerosity: than “current” as the than “current” as the than simply “current” 23 CARES Act required, CARES Act required, as the CARES Act 24 in doing so, Defendant in doing so, Defendant required, and in doing violated the CCRAA. violated the CCRAA. so, Defendant violated 25 Compl., ECF No. 1-2 FAC, ECF No. 1-2 at the CCRAA. SAC, 26 at 7-8, ¶ 42. 102, ¶ 44. ECF No. 1-2 at 153, ¶ 61. 27 Thus, the class size for purposes of calculating the amount in controversy was “hundreds, 28 1 if not thousands” under the first two complaints. 2 Both parties cite to the case Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136 3 (9th Cir. 2013) as addressing the issue of a defendant’s duty to investigate the amount in 4 controversy as well as whether the Court should use a figure of “hundreds” or “thousands” 5 as a multiplier. Defendant argues that Kuxhausen stands for the proposition that 6 “defendants need not make extrapolations or engage in guesswork” to determine 7 removability. Oppo. at 11:15-17. It contends that based on this proposition, it did not need 8 to extrapolate the amount in controversy, nor could it have. Id. Plaintiff replies that 9 “Defendant conveniently ignores the next two sentences, in which the Court held the 10 removal statute ‘requires a defendant to apply a reasonable amount of intelligence in 11 ascertaining removability,” and that “[m]ultiplying figures clearly stated in a complaint is 12 an aspect of that duty.’” Reply at 8:13-16 (citing Kuxhausen, 707 F.3d at 1140). 13 Kuxhausen, like the present case, addressed the issue of whether a defendant timely 14 removed to federal court. Id. at 1137-38. The plaintiff filed a class action complaint 15 asserting ten causes of action and two classes while also pleading—without “specifying a 16 total sum for class-wide damages”—that class members were entitled to statutory damages 17 of $1,000.00 per consumer and $5,000.00 for senior citizen consumers. Id. at 1138. 18 Approximately six months later, the plaintiff filed a First Amended Complaint, alleging a 19 new class. Id. Upon the filing of that amended complaint, the defendant removed to federal 20 court, arguing that the third class caused the amount in controversy to total more than ten 21 million dollars. Id. at 1138-39. The plaintiff moved to remand, arguing removal was 22 untimely as it had been apparent that the case was removable from the original complaint; 23 yet, the defendant failed to remove within thirty days of the original complaint’s filing. Id. 24 at 1139. The Ninth Circuit held the district court erred by remanding the case. Id. at 1143. 25 First, as to numerosity, the court rejected the defendant’s argument that the class 26 number was indeterminate based on its allegations that that the “exact number” of class 27 members was unknown. Kuxhausen, 707 F.3d at 1140. On the contrary, the first paragraph 28 of the complaint alleged that it was seeking to provide remedies for “hundreds of affected 1 customers,” and “‘hundreds’ by definition, means at least 200.” Id. (citing Carvalho, 629 2 F.3d at 886; Tompkins v. Basic Research LL, No. S–08–244 LKK/DAD, 2008 WL 3 1808316, at *3 (E.D. Cal. Apr. 22, 2008) (CAFA numerosity satisfied because the 4 allegation “a class of ‘thousands of persons’” implies “a logical minimum of 2,000 class 5 members”)). Second, the Kuxhausen court rejected the defendant’s arguments that it did 6 not need to make mathematical calculations to evaluate the amount in controversy. 7 Kuxhausen, 707 F.3d at 1140. It reasoned that while “defendants need not make 8 extrapolations or engage in guesswork,” they do need “to apply a reasonable amount of 9 intelligence in ascertaining removability,” and “[m]ultiplying figures clearly stated in a 10 complaint is an aspect f the duty.” Id. (citing Carvalho, 629 F.3d at 884 (noting that the 11 “amount in controversy was at least $12.5 million (i.e., $25,000 times 500 potential 12 plaintiffs)”). Third, the court held that where the complaint did not “allege the value, even 13 as an approximation, of other class members’ vehicle financing contracts,” the defendant 14 did not have a duty to consult its own records to identify a representative valuation. Id. at 15 1140-41. Rather, the defendant “was not obligated to supply information which [the 16 plaintiff] had omitted.” Id. at 1141. 17 Plaintiff argues that unlike his Initial Complaint, “in Kuxhausen[,] the plaintiff did 18 not allege the amount of damages per violation, or even per class member.” Reply at 8:16- 19 18. In this case, however, Plaintiff contends he “provided the necessary information 20 concerning the number of class members, the number of violations per class member, and 21 the damages for each violation.” Id. at 8:18-20. Thus, “[n]othing more [was] required, 22 and Defendant cannot refuse to do the necessary calculation and claim the class wide 23 damages were somehow ‘indeterminate.’” Id. at 8:20-22. The Court agrees that while the 24 complaint in this case, like the complaint in Kuxhausen, did not state a monetary figure of 25 damages sought per class member or the exact class size, unlike Kuxhausen, the amount in 26 controversy depended upon the number of violations and the amount of penalties, but the 27 penalties per violation was fixed by statute. This differs from Kuxhausen, where the 28 potential damages, and therefore, the amount in controversy, depended on the amount of 1 the vehicle finance contracts, and the plaintiff failed to allege the monetary value of the 2 contracts. Kuxhausen, 707 F.3d at 1140-41. Had Defendant merely assumed one violation 3 per class member at the maximum penalty rate of $5,000.00 per violation and a class of 4 2,000 members, it would have been readily apparent that the amount in controversy could 5 reach $10 million. In other words, unlike Kuxhausen, where remand was improper because 6 the defendant could not have ascertained removability merely by multiplying figures, in 7 this case, had Defendant merely multiplied figures, it could have ascertained removability. 8 In sum, the Initial Complaint alleges a class size of “hundreds, if not thousands.” 9 Initial Complaint at 7-8, ¶ 42. Based upon Kuxhausen, the Court considers the amount in 10 controversy using the lower end thousands figure of at least 2,000. 707 F.3d at 1140. 11 4. The Initial Complaint’s Amount in Controversy 12 As shown below, using the minimum penalty amount and class size, the amount in 13 controversy would not have been ascertainable. However, the law allows courts to 14 calculate the amount in controversy using maximum penalties. Rice, 2010 WL 128369, at 15 *2. Thus, having determined that the Initial Complaint revealed an ascertainable class size 16 of at least 2,000 with penalties amounting to $5,000.00, it appears that even with one 17 violation per class member, the Initial Complaint revealed a potential amount in 18 controversy exceeding $10 million. 19 Minimum Amount: Maximum Amount: Actual Damages, Cal. Civ. 20 None pled None pled Code § 1785.31(a)(2)(A): 21 $100 (minimum penalty) $5,000 (maximum penalty) Statutory Damages, Cal. Civ. 22 Code § 1785.31(a)(2)(B): x 200 (minimum class) = x 2,000 (maximum class) = $20,000.00 $10,000,000.00 23 $20,000.00 $10,000,000.00 24 Attorney's Fees: x 0.25 = x 0.25 = $5,000.00 $2,500,000.00 25 Costs: $1,435.00 $1,435.00 26 Subtotal: $25,000.00 $12,500,000.00 27 Accordingly, removal was ascertainable from the Initial Complaint. By removing 28 1 only after the filing of the SAC, Defendant failed to timely remove this case. 28 U.S.C. § 2 1446(b)(1). On that basis, the Court GRANTS Plaintiff’s Motion to Remand and orders 3 this case remanded to the San Diego Superior Court. 4 C. Defendant’s Motions to Strike and Dismiss the SAC 5 Defendant seeks to strike the classwide allegations in the SAC, or in the alternative, 6 dismiss them because the SAC alleges a nationwide class, but Defendant argues that the 7 CCRAA does not apply to borrowers outside of California. ECF No. 4-1. Defendant also 8 seeks to dismiss the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure 9 by arguing that (1) although the FCRA does not require proof of actual damage to recover 10 statutory damages or punitive damages, the CCRAA does require such proof, and (2) 11 Plaintiff’s SAC fails to allege actual damages 12 ECF No. 3-1 at 6:26-8:3. 13 “[A] federal court generally may not rule on the merits of a case without first 14 determining that it has jurisdiction over the category of claim in suit (subject-matter 15 jurisdiction) and the parties (personal jurisdiction).” Sinochem, 549 U.S. at 430-31. Here, 16 because the Court determines that the case must be remanded back to state court, it refrains 17 from addressing the merits of Defendant’s arguments, which primarily pertain to issues of 18 California Law. Thus, the Court DENIES Defendant’s motions without prejudice. 19 D. The Parties’ Requests for Judicial Notice 20 Defendant asks the Court to take judicial notice of two documents submitted in 21 support of Defendant’s Motion to Strike, or in the Alternative, Strike the Class Allegations 22 in Plaintiff’s SAC. See ECF No. 5. First, it asks the Court to take judicial notice of 23 Plaintiff’s Deed of Trust, which secures his home loan with Defendant and was recorded 24 as Doc. No. 2015-0122022 on March 17, 2015, in the Official Records of the San Diego 25 County Recorder. ECF No. 5 at 3:6-11. Second, Defendants seeks judicial notice of 26 Freddie Mac’s state specific uniform security instruments, available at 27 https://sf.freddiemac.com/tools-learning/uniform-instruments/all-instruments#security- 28 instruments. Id. at 3:12-23. Plaintiff does not object to judicial notice of the Deed of Trust 1 but files numerous objections to the Court taking judicial notice of Freddie Mac’s state 2 specific uniform security instruments standards. See ECF No. 17 at 2:4-10. Because 3 Defendant asks the Court to take judicial notice as part of its Motion to Strike, which the 4 Court has denied without prejudice, the Court also DENIES Defendant’s Request for 5 Judicial Notice as the Court did not need to consider such documents. 6 Plaintiff asks the Court to take judicial notice of Defendant’s SEC Form 10-K filed 7 by Defendant for Fiscal Year 2020 and signed and filed with the SEC on February 23, 8 2021. Mot. at 7:22-8:2. He notes that such fillings are routinely subject to judicial notice 9 as public records of which the corporation cannot reasonably question the accuracy. ECF 10 No. 12-2 at 8:10-10; see also Stadnicki on Behalf of LendingClub Corp. v. Laplanche, 804 11 F. App’x 519, 520, n.1 (9th Cir. 2020) (granting the parties’ request for judicial notice of 12 the defendant’s filings with the SEC). Because the Court grants Plaintiff’s Motion to 13 Remand on the basis of the removability of the Initial Complaint, it did not need to consider 14 whether the case was removable on the basis of other papers. Thus, it never considered the 15 SEC filings. As a result, the Court DENIES Plaintiff’s request for judicial notice. 16 E. Plaintiff’s Notice of Recent Decision 17 Plaintiff submitted a Notice of Recent Decision, attaching the opinion in Railey v. 18 Sunset Food Mart, Inc., 16 F.4th 234, *3-5 (7th Cir. 2021), which held that (1) the 19 defendant-employer timely removed based on minimal diversity after it discovered through 20 its own social media investigation facts showing minimal diversity; (2) the district court 21 correctly remanded a case under the home-state controversy exception to CAFA 22 jurisdiction; and (3) the 30-day removal clock in § 1446(b)(1) began to run when the 23 plaintiff served her complaint. See ECF No. 24. Defendant objects to Plaintiff’s Notice of 24 Recent Decision and asks the Court to strike and refuse to consider the document. ECF 25 No. 25. Alternatively, Defendant asks that if the Court is inclined to consider those 26 arguments, that it grant Defendant the opportunity to respond and demonstrate why that 27 decision is inapposite. ECF No. 25. 28 Where a party presents new evidence in a reply brief or after the submission of a | reply brief, the district court should decline consideration of the new evidence unless it 2 provides the non-moving party an opportunity to respond to such evidence. Dutta v. State 3 Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172 (9th Cir. 2018). Here, the Railey decision 4 \lis not binding authority on the Court and did not factor into the Court’s decision on the > || Motion to Remand. Thus, the Court disregards Plaintiff's Notice of Recent Decision. 6 CONCLUSION 7 For the above reasons, the Court ORDERS as follows: 8 1. Plaintiff's Motion to Remand, ECF No. 12,is GRANTED. The Clerk of the ? || Court shall remand this case to the San Diego Superior Court. 10 2. Defendant’s (1) Motion to Dismiss the SAC, ECF No. 3; (2) Motion to Strike 11 the Classwide Allegations of SAC, or in the Alternative, Dismiss Those Allegations, ECF 12 IINo. 4; (3) Request for Judicial Notice, ECF No. 5; and (4) Plaintiff's Request for Judicial 13 || Notice are DENIED without prejudice due to the Court’s decision to remand this case to 14 the San Diego Superior Court. 15 3. Plaintiff's Notice of Recent Decision is disrggarded. 16 IT IS SO ORDERED. 17 || DATED: November 22, 2021 18 ON. ROGER T. BENITE 19 United States District Judge 20 21 22 23 24 25 26 27 28 -29-