Opinion
LA CV24-03727 JAK (AGRx)
07-16-2024
Robert Hauffen v. Nissan North America, Inc. et al.
PRESENT: THE HONORABLE JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFFS' MOTION TO REMAND (DKT. 10)
I. Introduction
On May 5, 2023, Robert Hauffen (“Plaintiff') brought this action against Nissan North America, Inc. (“Defendant”) and Does 1 through 10 in the Los Angeles Superior Court. Dkt. 1-2 (the “Complaint”). The Complaint advances three causes of action: (1) violation of the Song-Beverly Act Breach of Express Warranty: (2) violation of the Song-Beverly Act Breach of Implied Warranty: and (3) violation of the Song-Beverly Act § 1793.2. Id. On May 3, 2024, Defendant removed this action based on diversity jurisdiction (the “Notice of Removal” (Dkt. 1)).
On May 21,2024, Plaintiff filed a Motion to Remand and Request for Order to Show Cause Pursuant to Rule 11(c)(3) (the “Motion”). Dkt. 10. On June 6, 2024, Defendant filed an opposition (the “Opposition” (Dkt.11)). On June 10, 2024, Plaintiff filed a reply (the “Reply” (Dkt. 12)). In support of the Reply, Plaintiff filed three Requests for Judicial Notice (the “RJNs” (Dkts. 12-2, 13, 15)).
Following a hearing on the Motion on July 1,2024, the Motion was taken under submission. Dkt. 17. For the reasons stated in this Order, the Motion to Remand is GRANTED, and the Request for an Order to Show Cause is DENIED.
II. Factual Background
A. Parties
It is alleged that Plaintiff is an individual residing in California. Dkt. 1 ¶ 12. It is alleged that Defendant is a Delaware corporation whose principal place of business is in Tennessee. Id. ¶ 13.
B. Allegations in the Complaint
It is alleged that on May 3, 2020, Plaintiff purchased a 2020 Nissan Altima, for which Defendant provided a warranty. Dkt. 1 -2 ¶¶ 8-9. It is alleged that the Altima was delivered to Plaintiff with substantial defects and nonconformities. Id. ¶ 10. It is alleged that the vehicle constitutes a “consumer good” used primarily for family or household purposes under the Song-Beverly Consumer Warranty Act, and that Plaintiff has used the vehicle primarily for those purposes. Id. ¶ 12.
III. Request for Judicial Notice
A. Legal Standard
Fed. R. Evid. 201(b) provides that a court “may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Consideration of such materials ensures that “allegations that contradict matters properly subject to judicial notice or by exhibit” are not simply “accept[ed] as true” in connection with a motion to dismiss. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
A court may take judicial notice of a wide range of matters, including public records, government documents, judicial opinions, municipal ordinances, newspaper and magazine articles, and the contents of websites. See, e.g., Makaeff v. Trump Univ., LLC, 715 F.3d 254, 259 n.2 (9th Cir. 2013); Tollis, Inc. v. Cnty. of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007); United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994); Heidelberg USA, Inc. v. PM Lithographers, Inc., No. CV 17-02223-AB (AJWx), 2017 WL 7201872, at *2-3 (C.D. Cal. Oct. 19, 2017); United States, ex rel. Modglin v. DJO Glob., Inc., 114 F.Supp.3d 993, 1008 (C.D. Cal. 2015).
Even if judicial notice is taken of a record, a court must distinguish between undisputed and disputed facts that it may include. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). For example, “when a court takes judicial notice of another court's opinion, it may do so ‘not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.' ” Id. (quoting S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)).
B. Application
1. Plaintiffs First Request for Judicial Notice (Dkt. 12-2)
In support of his Reply, Plaintiff requests judicial notice of Defendant's notices of removal in the following seven cases;
(1) Jose Jara Jara et al v. Nissan North America, Inc., No. 2: 23-cv-10461 -ODW-AS (“Jara Jara”);
(2) Yaneth Cerpas v. Nissan North America, Inc., No. 8:23-cv-02371-JWH-JDE (“Cerpas");
(3) Sarah L. Prince v. Nissan North America, Inc., No. 5: 23-cv-02333-SSS-SP (“Prince”)',
(4) Frank Giron Robles v. Nissan North America, Inc., No. 2:24-cv-00489-RGK-PD (“Robles")',
(5) Leon Quinones, Jesus v. Nissan North America, Inc., No. 2:23-cv-10303-FMO-DFM (“Quinones");
(6) Mario J. Islas et al v. Nissan North America, Inc., No. 3: 23-cv-02315-JES-MSI (“Islas”); and
(7) Davon P. Tucker v. Nissan North America, Inc., No. 3:24-cv-00524-AGT (“Tucker1').
The request is GRANTED. Judicial notice is taken of the Defendant's filing a notice of removal in each of these cases, and its contents, but “not for the truth of the facts recited therein.” Lee, 250 F.3d at 68990 (internal quotation marks omitted).
C. Plaintiffs Second Request for Judicial Notice (Dkt. 13)
After the completion of the briefing on the Motion, Plaintiff filed a second request for judicial notice. It seeks judicial notice of orders issued in following cases:
(1) Roberto Garcia Mariscal v. Nissan North America, Inc., No. 2:24-cv-03668-RGK-PDx (“Mariscal"); and
(2) Lilly D. Hill v. Nissan North America, Inc., No. CV 24-04031 PSG-SKx (“HUT).
A court may take judicial notice of another court's opinion “not for the truth of the facts recited therein, but for the existence of the opinion.” Lee, 250 F.3d at 689-90 (internal quotation marks omitted). Because these are public records, the request is GRANTED.
D. Plaintiffs Third Request for Judicial Notice (Dkt. 15)
After the completion of the briefing on the Motion, Plaintiff also filed a third request for judicial notice. It seeks judicial notice of orders issued in following cases:
(1) Monica Y. Avalos v. Nissan North America, Inc., No. 2: 24-cv-03908-JFW-MRW (“Avalos”); and
(2) Monique Bryant v. Nissan North America, Inc., No. 2:24-cv-03373-DSF-RAO (“Bryant").
A court may take judicial notice of another court's opinion “not for the truth of the facts recited therein, but for the existence of the opinion.” Lee, 250 F.3d at 689-90 (internal quotation marks omitted).
Because these are public records, the request is GRANTED.
IV. Analysis
A. Legal Standards
1. Jurisdiction
A motion to remand is the vehicle used to challenge the removal of an action. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009); see 28 U.S.C. § 1447(c). In general, a state civil action may be removed only if, at the time of removal, it is one over which there is federal jurisdiction. See 28 U.S.C. § 1441.
Federal courts have diversity jurisdiction over actions where the amount in controversy exceeds $75,000 and the adverse parties are citizens of different states. See 28 U.S.C. §§ 1332, 1441. Complete diversity of citizenship is required; in other words, “the citizenship of each plaintiff [must be] different from that of each defendant.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (citing 28 U.S.C. § 1332(a)). When removal is based on diversity of citizenship and “not contested by the plaintiff or questioned by the court,” a defendant's notice of removal “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold,” and “need not contain evidentiary submissions.” Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 84-89 (2014).
Because federal courts are courts of limited jurisdiction, the removal statute is to be strictly construed; any doubt about removal is to be resolved in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). The removing party has the burden of establishing that it is proper to do so, including that there is federal jurisdiction. Id. “If a case is improperly removed, the federal court must remand the action because it has no subject-matter jurisdiction to decide the case.” ARCO Env't. Remediation, L.L.C, v. Dep't of Health & Env't. Quality of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000).
2. Timeliness of Removal
Notice of removal of a civil action must be filed within 30 days of when the removing party received the initial pleading or summons. 28 U.S.C. § 1446(b). The receipt of such a pleading starts the 30-day period where it “set[s] forth” a ground for removal. Dietrich v. Boeing Co., 14 F.4th 1089, 1093 (9th Cir. 2021) (quoting 28 U.S.C. § 1446(b)). “[D]efendants need not make extrapolations or engage in guesswork” when assessing the removability of a pleading, “yet the statute requires a defendant to apply a reasonable amount of intelligence in ascertaining removability. Multiplying figures clearly stated in a complaint is an aspect of that duty.” Kuxhausen v. BWM Financial Services NA LLC, 707 F.3d 1136, 1140 (citation and internal quotation marks omitted).
Where the initial pleading does not set forth a ground for removal, a 30-day period begins “after the defendant receives ‘an amended pleading, motion, order or other paper' from which it can be ascertained from the face of the document that removal is proper.” Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005) (citing 28 U.S.C. § 1446(b)). This 30-day period begins only when an “amended pleading, motion, order or other paper” “make[s] a ground for removal unequivocally clear and certain.” Dietrich, 14 F.4th at 1095. When the 30-day time limit is not triggered by a pleading or other document, notice of removal based on diversity of citizenship must be filed no later than “1 year after commencement of the action.” 28 U.S.C. § 1446(c)(1).
Should a pleading or other document be “indeterminate with respect to removability,” Defendants “do[] not have a duty of inquiry.” Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121,1125 (9th Cir. 2013). “[E]ven if a defendant could have discovered grounds for removability through investigation, it does not lose the right to remove because it did not conduct such an investigation and then file a notice of removal within thirty days of receiving the indeterminate document.” Id.
The 30-day statutory time limit for removal is a procedural, not jurisdictional, requirement. Smith v. Mylan Inc., 761 F.3d 1042, 1045 (9th Cir. 2014). However, “the time limit is mandatory and a timely objection to a late petition will defeat removal.” Id.
B. Application
Plaintiff does not dispute that there is federal jurisdiction. Dkt. 12 at 3. Instead, Plaintiff argues that Defendant's removal was untimely, because the 30-day period for a timely removal was triggered by the August 17, 2023 service of an “other paper:” Attachment 4(b) of the Plaintiffs Case Management Conference Statement (the “Attachment”). Dkt. 10; see Dkt. 10-6. The Attachment states:
Plaintiff seeks rescission of the purchase contract, restitution of all monies expended for the vehicle, incidental and consequential damages, civil penalties in the amount of two times Plaintiffs actual damages, diminution in value, prejudgment interest, reasonable attorneys' fees and costs of suit, general, special, and actual damages according to proof at trial. Plaintiff's restitution damages are in excess of $50,000.00 and attorney's fees and costs are currently in excess of $20,000.00.Dkt. 10-6 at 8.
Plaintiff argues that, because this statement was an “unequivocally clear and certain” basis for removal, it triggered the 30-day period for removal on August 17, 2023. Accordingly, Plaintiff argues that the removal on May 3, 2024 was untimely, because it was more than 30 days after August 17, 2023. Dkt. 10 at 2, 8-9. Plaintiff also argues that the Defendant has a duty to “apply a reasonable amount of intelligence in ascertaining removability,” and that Defendant could have done so with the figures in the Attachment. Id. at 10.
Defendant responds that the Attachment was not “unequivocally clear and certain" for the purposes of triggering the 30-day time period because it contains “rote verbiage contained in a boilerplate form attachment.” Dkt. 11 at 12. Defendant states that the estimate of damages and attorney's fees listed within the Attachment is a “mass-produced,” “boilerplate” statement made by Plaintiffs counsel in more than 100 cases that counsel has brought against Defendant, that the statement is never updated regardless of the subject vehicle's price, or the work by Plaintiffs counsel with respect to the specific case. Id. at 12-13. In support of this position, Defendant's counsel, Stephen H. Dye, has submitted a declaration in which he includes a sample chart of 15 such cases, and the Attachments filed in each of them, which include identical statements as to damages. Dkt. 11-1 (“Dye Deci.”), Ex. 1 Defendant contends that, because the estimate of damages in the Attachment is not tailored to the specific facts of any case with which it is filed, it is not a sufficiently clear basis for establishing that the amount in controversy is sufficient to trigger the 30-day removal period. Id. at 14.
Defendant does not dispute that Attachment is a document that may qualify as an “other paper.” See Dkt. 11.
Plaintiff has submitted evidentiary objections to the Dye Declaration and its Exhibits. Dkt. 12-3. To the extent certain evidence is discussed in this Order, the objections to that evidence have been OVERRULED. All other objections are MOOT.
Defendant also cites Castillo v. Nissan North America, Inc., 2:23-cv-10473-MCS-PVS, in which an Order to Show Cause Re Subject Matter Jurisdiction (“OSC”) was issued on the basis, among others, that the statement of damages in a similar Attachment did not clearly satisfy the amount-in-controversy requirement. Dkt. 11-5. Castillo found that it was “not clear if Plaintiffs $50,000 calculation includes actual damages as well as the estimated civil penalties.” Id. It also found that the $50,000 estimate exceeded “the value of the vehicle proffered in the [parties'joint Rule 26(f) Report], thus “calling] into question the amount in controversy at removal in its entirety.” Id. After a response to the OSC was filed, the action was remanded due to insufficient evidence as to the amount in controversy. Castillo v. Nissan North America, Inc., No. 2: 23-cv-10473-MCS-PVC, 2024 WL 1135663, at *3.
Defendant contends that, had it removed based on the Attachment, it “may well have subjected itself to... Rule 11 sanctions, for filing a baseless notice of removal.” Dkt. 11 at 15. Defendant also argues that the “reasonable amount of intelligence” duty only applies to initial pleadings, not to other papers, and that it has “no duty to investigate the possibility of potential removability” when “it has not received a document from which removability may be clearly ascertained.” Id. at 10-11.
Plaintiff does not dispute that the estimate of the amount of damages is the same in the Attachment filed in each of the cases in which his counsel represented a plaintiff. Thus, Plaintiff acknowledges that it is “virtually the same” Attachment. Dkt. 12 at 2. However, Plaintiff contends that Defendant has filed seven notices of removal in other cases based on the same information in the Attachment. On this basis, Plaintiff contends that Defendant relies on the Attachment “only when it is convenient to do so;” while, “in a complete about-face, questioning] the reliability of virtually the same [Attachment].” Dkt. 12 at 5-6.
In light of the evidence presented, Plaintiffs position is the more persuasive one. Based solely on the Attachment as previously interpreted by Defendant, it can be deemed unequivocally clear and certain that the estimated damages exceed the amount-in-controversy threshold and provided a basis for removal. Using a “reasonable amount of intelligence,” Kuxhausen, 707 F.3d at 1140, and assuming the maximum amount of civil penalties, which would double the restitution figure, the estimated, alleged damages are $150,000. See Arias v. Residence Inn by Marriott, 936 F.3d 920, 927 (9th Cir. 2019) (“[T]he amount in controversy reflects the maximum recovery the plaintiff could reasonably recover.”). Thus, the Attachment is sufficiently clear to trigger the 30-day time period for removal. In sum, that Defendant relied on the same assertions as to damages in removing seven other actions during the same time period, supports the application of the same analysis in this case.
Four other courts in this District have recently reached the same conclusion. See Dkt. 13 (citing Mariscal, No. 2:24-cv-03668-RGK-PDx and Hill, No. CV 24-04031 PSG-SKx); see also Dkt. 15 (citing Avalos, No. 2:24-cv-03908-JFW-MRW and Bryant, No 2:24-cv-03373-DSF-RAO).
Defendant has not cited any caselaw to support its current position that a “mass produced,” “boilerplate” document can be deemed unreliable when assessing the amount in controversy. See Dkt. 11 at 7, 12. Instead, the 30-day period is triggered when “the four corners of the ‘other paper' at issue clearly and unequivocally” “apprise [Defendant] of the information necessary” to invoke removal.
Orange Cnty. Water Dist. v. 3M Co., No. 21-55778, 2022 WL 605630, at *1 (9th Cir. Mar. 1,2022) (emphasis added); see also Harris, 425 F.3d at 694 (“[N]otice of removal may be filed within thirty days after the defendant receives ‘an [...] other paper' from which it can be ascertained from the face of the document that removal is proper” (quoting 28 U.S.C. § 1446(b)) (emphasis added). Once again, that Defendant removed seven other cases based on information in the respective attachments that is virtually the same as what was presented in the Attachment in this action, undercuts its claim that it could not appropriately assess the amount in controversy within 30 days of service of the Attachment. See Dkt. 12 at 4.
During the hearing, Defendant sought to distinguish the seven prior cases by stating that those notices of removal were filed before its counsel was on notice of the unreliability of the forms, due to the OSC Re Subject Matter Jurisdiction and decision to remand in Castillo. Defendant argues that with this awareness, it could not have removed this case based upon the Attachment in good faith. This position is unpersuasive. Defendant's counsel received an email with the Attachment well before the February 7, 2024 OSC and the February 28, 2024 decision in Castillo. Further, after Defendant received the Attachment and the corresponding 30-day period had ended, Defendant proceeded to file notices of removal in the seven cases.
See Jara Jara, No. 2:23-cv-10461-ODW-AS, Dkt. 1 (Notice of Removal filed December 14, 2023); Cerpas, No. 8:23-cv-02371-JWH-JDE, Dkt. 1 (Notice of Removal filed December 14, 2023); Prince, No. 5:23-cv-02333-SSS-SP, Dkt. 1 (Notice of Removal filed November 14, 2023); Robles, No. 2:24-cv-00489-RGK-PD, Dkt. 1 (Notice of Removal filed January 18, 2024); Quinones, No. 2:23-cv-10303-FMO-DFM, Dkt. 1 (Notice of Removal filed December 07, 2023); Islas, No. 3:23-cv-02315-JES-MSI, Dkt. 1 (Notice of Removal filed December 19, 2023); Tucker, No. 3:24-cv-00524-AGT, Dkt. 1 (Notice of Removal filed January 26, 2024).
Defendant also argues that it only became aware of the Attachment after Castillo, because the Attachment was sent by email rather than by electronic service. However, service is not required to trigger the 30-day time period for removal. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316 (9th Cir. 1998) (“[A] notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper...”) (emphasis added). An email between parties may constitute an “other paper.” See Coury v. Air & Liquid Systems Corporation, No. 3: 17-1240-SI, 2018 WL 702685, at *5 (D. Or. Feb. 2, 2018) (“The Court concludes that a settlement-related letter or email may constitute ‘other paper' under 28 U.S.C. 1446(b)(3)”) (citing Babasa v. LensCrafters, Inc., 498 F.3d 972 (9th Cir. 2007)). Thus, Defendant has not provided an adequate explanation for why an email to counsel of record including the Attachment was insufficient to put it on notice of the ground for removal.
For the foregoing reasons, the 30-day removal period commenced when Defendant received the Attachment on August 17, 2023, and expired before Defendant's May 3, 2024 Notice of Removal. Dkt. 10 at 9; Dkt. 1. Therefore, because Defendant's Notice of Removal was untimely, the Motion to Remand is GRANTED.
C. Request for Rule 11 Sanctions and Order to Show Cause
As noted, Plaintiff also seeks the issuance of an Order to Show Cause, as to whether Defendant violated Fed.R.Civ.P. 11 (b)(1-3), based on alleged “misrepresentation of the timeliness of [Defendant's] removal.” Dkt. 10 at 11. Rule 11 is designed “to curb delay and expense caused by the filing of unsupported pleadings and motions.” Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1537 (9th Cir. 1986). This includes preventing “frivolous filings” and “misusing judicial procedures as a weapon for personal or economic harassment.” Id. Under Rule 11, sanctions “shall be assessed if the paper filed in the district court and signed by an attorney or unrepresented party is frivolous, legally unreasonable, or without factual foundation, even though the paper was not filed in subjective bad faith.” Zuniga v. United Can Co., 812 F.2d 443, 452 (9th Cir. 1987) (quoting id.) (emphasis in original).
Defendant's removal did not violate these standards. Accordingly, the request for the issuance of an order to show cause is DENIED.
V. Conclusion
For the reasons stated in this Order, the Motion to Remand is GRANTED. The matter is REMANDED to the Los Angeles Superior Court at its Norwalk Courthouse, Case No. 23NWCV01359.
IT IS SO ORDERED.