Perkins v. Mercedes-Benz USA, LLC

[4] 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA [7] 8 MITCHELL PERKINS, Case No. 22-cv-03540-CRB 9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 v. MOTION TO REMAND AND DENYING AS MOOT 11 MERCEDES-BENZ USA, LLC, et al., DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE 12 Defendants. 13 Plaintiff Mitchell Perkins brings this action against Defendants Mercedes-Benz 14 USA, LLC (“MBUSA”) and Mercedes-Benz of Marin (“MB-Marin”) for breach of 15 implied and express warranties under California’s Song-Beverly Consumer Warranty Act 16 (“Song-Beverly”) and the federal Magnuson-Moss Act (“MMWA”), and for negligent 17 repair. See Compl. (dkt. 1-1, Ex. A).1 MBUSA removed the case to this Court, asserting 18 federal question jurisdiction. NOR (dkt. 1) ¶ 4. Perkins moves to remand. Pl.’s Mot. (dkt. 19 21-1). Defendants move to dismiss and/or strike portions of the complaint. Defs.’ Mot. 20 (dkt. 19). As explained below, Defendants have failed to establish that the amount in 21 controversy “more likely than not” meets the MMWA’s statutory minimum of $50,000. 22 Finding this case suitable for resolution without oral argument under Civil Local Rule 723 1(b), the Court VACATES the hearing scheduled on October 21, 2022, GRANTS Perkins’ 24 motion to remand, and DENIES AS MOOT Defendants’ motion to dismiss. [27] I. BACKGROUND [1] A. Facts [2] On or about November 12, 2014, Perkins entered into a warranty contract for a [3] 2014 Mercedes-Benz GLK 250 (the “Vehicle”) manufactured and distributed by MBUSA. [4] Compl. ¶ 10. Perkins first presented the Vehicle for repair in 2016 with 43,248 miles on [5] the odometer. Id. ¶ 17. Perkins alleges that MBUSA failed to conform the Vehicle to its [6] express and implied warranties after a reasonable number of repair attempts, in violation of [7] Song-Beverly and the MMWA. Id. ¶¶ 24, 32, 38, 43, 49, 46, 55, 61. Perkins further [8] alleges that MBUSA was fully aware of its inability to conform the Vehicle to applicable [9] express warranties, but willfully refused to provide materials to effect repair, replace the [10] Vehicle, or make restitution. Id. ¶¶ 34, 41, 44. Perkins also brings a claim of negligent [11] repair against MB-Marin, alleging “fail[ure] to properly store, prepare, and repair the [12] Subject Vehicle in accordance with industry standards.” Id. ¶ 66. [13] In the body of the complaint, Perkins alleges that he suffered damages “in a sum to [14] be proven at trial in an amount that is not less than $25,001.00.” Id. ¶ 29. In the prayer for [15] relief, Perkins asks for (among other things) “general, special and actual damages [16] according to proof,” “a civil penalty in the amount of two times Plaintiff’s actual damages [17] pursuant to” Song-Beverly, and “costs of the suit and Plaintiff’s reasonable attorneys’ fees [18] pursuant to” that Act. Id. at 10–11. [19] B. Procedure [20] MBUSA removed this case, asserting federal question jurisdiction because the [21] amount in controversy surpasses the MMWA’s jurisdictional threshold. NOR ¶¶ 4, 8. [22] Perkins moves to remand, arguing that MBUSA failed to establish unanimous [23] consent to removal and that the amount in controversy is less than the $50,000 required for [24] federal subject matter jurisdiction under the MMWA. Pl.’s Mot. at 1. Defendants move to [25] dismiss and/or strike portions of the complaint pursuant to Rules 12(b)(1), 12(b)(6), and [26] 12(f) of the Federal Rules of Civil Procedure. Defs.’ Mot. at 1. Because the Court [27] remands this case, it does not reach Defendants’ motion to dismiss. II. LEGAL STANDARD [1] A defendant may remove “any civil action brought in a State court of which the [2] district courts . . . have original jurisdiction.” 28 U.S.C. § 1441 (a). District courts have [3] federal question jurisdiction over civil actions that “aris[e] under the Constitution, laws, or [4] treaties of the United States.” Id. § 1331. There is a “strong presumption” against removal [5] jurisdiction, and courts “strictly construe the removal statute against removal.” Gaus v. [6] Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). This “means that the defendant always has [7] the burden of establishing that removal is proper.” Hunter v. Philip Morris USA, 582 F.3d 8 1039, 1042 (9th Cir. 2009) (citation and internal quotation marks omitted). Any doubt [9] regarding the legitimacy of the removal favors remanding the case to state court. Id. [10] III. DISCUSSION [11] Perkins seeks remand on two grounds. First, he argues that removal was [12] procedurally improper because MBUSA has not established that MB-Marin also consented [13] to removal, as required by 28 U.S.C. § 1441 (b). See Pl.’s Mot. at 1. Second, he argues [14] that the Court lacks subject matter jurisdiction because Defendants have not shown that the [15] amount in controversy exceeds the MMWA’s jurisdictional threshold. Id. [16] A. Consent [17] The Court rejects remand on the basis of lack of consent because Perkins’ [18] procedural challenge is untimely and therefore waived. Even if it were not waived, this [19] challenge fails because the Court can infer MB-Marin’s consent. [20] All properly joined and served defendants must “join in or consent to” removal in [21] cases involving multiple defendants. 28 U.S.C. § 1446 (b)(2)(A); Hewitt v. City of [22] Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). Parties challenging removal “on the basis of [23] any defect other than lack of subject matter jurisdiction”—including consent—must file a [24] motion to remand within 30 days after a notice of removal is filed. 28 U.S.C. § 1447 (c). [25] The consent requirement is met as long as the removing defendant “avers that all [26] defendants consent to removal” in their timely removal notice. Proctor v. Vishay [27] Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009); see id. (noting that sanctions 1 and the ability to object to removal mitigate concerns that a defendant will make a false 2 averment). Several district courts have held that “formal consent is unnecessary ‘where 3 the pleadings demonstrated defendants were all represented by the same counsel’” and 4 defendants jointly filed removal notices or oppositions to remand. See, e.g., Tanious v. 5 Gattoni, 533 F. Supp. 3d 770 , 775 (N.D. Cal. 2021) (quoting Lewis v. City of Fresno, 627 6 F. Supp. 2d 1179, 1186 (E.D. Cal. 2008)). 7 Perkins’ consent-based challenge fails because it is untimely. MBUSA removed 8 this case to federal court on June 15, 2022. See NOR. However, Perkins did not file his 9 motion to remand until August 10, 2022, nearly 60 days after removal. See Pl.’s Mot. 10 Therefore, Perkins waived his consent-based challenge to removal because it came long 11 after the 30-day time limit in 28 U.S.C. § 1447 (c). See, e.g., Vasquez v. N. Cnty. Transit 12 Dist., 292 F.3d 1049 , 1060 n.5 (9th Cir. 2002) (noting that the plaintiff waived their 13 consent-based challenge by failing to move for remand within 30 days of removal). 14 Perkins’ consent-based challenge also fails because the Court can infer unanimous 15 consent. See Tanious, 533 F. Supp. 3d at 775. As Perkins notes, MB-Marin has not 16 specifically communicated consent, MBUSA did not address its co-defendant’s consent in 17 its removal notice, and Defendants ignored the consent issue in their opposition. Pl.’s Mot. 18 at 1; see NOR; Opp’n (dkt. 25). However, Defendants share counsel2 and jointly filed 19 their motion to dismiss and opposition to remand. Defs.’ Mot. at 1; see also Opp’n. MB20 Marin has also never objected to removal, though it had the opportunity to do so. Courts 21 have inferred unanimous consent in nearly identical circumstances. See Hafiz v. 22 Greenpoint Mortg. Funding, 409 F. App’x 70, 72 (9th Cir. 2010) (inferring consent where 23 defendants shared counsel and jointly filed a dispositive motion); Tanious, 533 F. Supp. 3d 24 at 775 (inferring consent where defendants shared counsel and jointly filed a removal 25 notice, opposition to remand, and motion for leave to file a sur-reply). 26 For the foregoing reasons, the Court rejects Perkins’ consent argument. [27] B. Amount in Controversy [1] Perkins also seeks remand on the basis that Defendants have not shown that the [2] amount in controversy is at least $50,000, as required for subject matter jurisdiction under [3] the federal MMWA. Pl.’s Mot at 5–18. Defendants maintain that Perkins satisfies this [4] statutory minimum. NOR ¶ 8; Opp’n at 1. [5] “[F]ederal courts only have jurisdiction over [MMWA] claims if the amount in [6] controversy exceeds $50,000,” including all claims less interest and costs. Cox v. Kia [7] Motors Am., Inc., 20-CV-02380-BLF, 2020 WL 5814518 , at *1 (N.D. Cal. Sept. 30, 2020) [8] (internal citations and quotation marks omitted); see 15 U.S.C. § 2310 (d)(3). [9] Where the plaintiff clearly alleges an amount in controversy that meets this [10] threshold, the requirement is satisfied “unless it appears to a ‘legal certainty’ that the [11] plaintiff cannot actually recover that amount.” Guglielmino v. McKee Foods Corp., 506 12 F.3d 696, 699 (9th Cir. 2007) (citations omitted). But if it is unclear whether the plaintiff [13] pleaded the requisite amount, the defendant has the burden to show that the jurisdictional [14] threshold is met by a preponderance of the evidence. Id. Accordingly, where a complaint [15] is facially ambiguous, the defendant must use “evidence combined with reasonable [16] deductions, reasonable inferences, and other reasonable extrapolations” to show that the [17] amount in controversy “more likely than not” exceeds $50,000. See Ibarra v. Manheim [18] Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). When assessing the amount in [19] controversy, courts “may consider allegations in the complaint and in the notice of [20] removal, as well as summary-judgment-type evidence.” Chavez v. JPMorgan Chase & [21] Co., 888 F.3d 413, 416 (9th Cir. 2018). Conclusory allegations are insufficient. See [22] Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089 , 1090–91 (9th Cir. 2003). [23] As explained below, the amount in controversy is unclear on the face of Perkins’ [24] complaint, so Defendants must present evidence showing that it “more likely than not” [25] reaches $50,000. [26] 1. Plaintiff’s Allegations [27] The parties disagree about the clarity of the complaint’s allegations as to the amount 1 in controversy. As noted previously, the complaint alleges that Perkins suffered damages 2 “in a sum to be proven at trial in an amount that is not less than $25,001.00.” Compl. ¶ 29. 3 Defendants interpret this language broadly and claim that the allegations in Perkins’ 4 complaint establish an amount in controversy of more than $50,000 after adding civil 5 penalties and attorneys’ fees. See NOR ¶ 8–10. They assert that they “[have] no burden to 6 supply facts to support the amount by a preponderance of the evidence.” Opp’n at 3–4. 7 But Perkins argues that the $25,001 figure reflects “total damages, which include, inter 8 alia, (1) actual damages; (2) civil penalties; and (3) attorneys’ fees.” Pl.’s Mot. at 7. 9 Perkins contends that the amount in controversy is less than $50,000—or that, at the very 10 least, the ambiguity shifts the burden to Defendants. Id. at 7–8. 11 “Numerous district courts in this Circuit have concluded that Plaintiffs’ Complaint 12 language—i.e., that Plaintiffs suffered ‘damages in an amount that is not less than 13 $25,001.00’—is too speculative to conclude that the amount in controversy is satisfied.” 14 Cox, 2020 WL 5814518 , at *2 (citing Limon-Gonzalez v. Kia Motors Am., Inc., 20-CV15 4381-PA (JPRx), 2020 WL 3790838 , at *2 (C.D. Cal. July 7, 2020)). These courts have 16 reasoned that the $25,001 figure could denote the total amount in controversy “in the 17 absence of contradictory allegations in the Complaint” or a defendant “provid[ing] a basis 18 . . . to interpret ‘damages’ to mean ‘actual damages.’” See, e.g., Feichtmann v. FCA US 19 LLC, 20-CV-01790-EJD, 2020 WL 3277479 , at *3 (N.D. Cal. June 18, 2020) (accepting 20 that “not less than $25,001” could include civil penalties where the complaint lacked 21 contradictory evidence); Steeg v. Ford Motor Co., 19-CV-05833-LHK, 2020 WL 2121508 , 22 at *3 (N.D. Cal. May 5, 2020). This Court also recently found ambiguity as to whether a 23 plaintiff’s allegation of $25,001 in “damages” figure referred to total damages or only to 24 the “actual damages” mentioned in the plaintiff’s prayer for relief. Edwards v. Jaguar 25 Land Rover N. Am. LLC, 21-CV-05061-CRB, 2022 WL 854515 , at *3 (N.D. Cal. Mar. 26 23, 2022). But where defendants provide concrete textual reasons to interpret “damages” 27 to exclude civil penalties, courts conclude that the complaint clearly shows that the amount [1] 2020 WL 1904590 , at *3 (N.D. Cal. Apr. 17, 2020) (holding that a complaint satisfied the 2 amount in controversy because it stated in the same paragraph that “[t]he amount in 3 controversy exceeds [$25,000]” and “[i]n addition, Plaintiff seeks . . . [civil penalties], 4 actual damages, . . . and attorneys’ fees”) (emphasis added). 5 Here, the Court finds (as it did in analyzing identical text in Edwards) that it is 6 ambiguous whether total damages exceed $50,000. See 2022 WL 854515 , at *3. 7 Defendants emphasize that Perkins alleges “damages . . . in an amount that is not less than 8 $25,001.00” and seeks a civil penalty of double actual damages under Song-Beverly, see 9 Compl. ¶ 29, and they assume that the $25,001 of “damages” does not encompass total 10 damages. See NOR ¶¶ 8–10. Yet, as in Edwards, it is unclear whether this reference to 11 “damages” includes all the line items later listed in his prayer for relief (“actual damages,” 12 “civil penalties,” and “attorneys’ fees”). See 2022 WL 854515 , at *3. Although the text of 13 this complaint is identical to that in Edwards, Defendants make no attempt to distinguish it. 14 See generally Opp’n. Defendants also argue that Perkins has not “waived recovery above 15 and beyond the $50,000 requirement.” Id. at 4 . But given the ambiguity of whether 16 Perkins even alleges $50,000, any purported failure to “waive recovery above and beyond” 17 $50,000 is beside the point.3 See id. In sum, Defendants provide no concrete bases for 18 their interpretation. See Pestarino, 2020 WL 1904590 , at *3. 19 Perkins plausibly argues that the $25,001 in “damages” refers collectively to actual 20 damages, civil penalties, and attorneys’ fees, so the complaint does not unambiguously 21 allege the required amount. Pl.’s Mot. at 7; see Edwards, 2022 WL 854515 , at *3. 22 2. Defendants’ Evidence 23 Because the allegation as to damages is ambiguous, Defendants must show by a 24 preponderance of the evidence that the amount in controversy exceeds $50,000 (excluding 25 interest and costs). See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. [27] 3 Even if it were applicable, Defendants do not cite to cases analyzing this waiver argument, and 1 1996). Defendants attempt to demonstrate that the amount in controversy is at least 2 $78,722, including Perkins’ potential recovery of actual damages, civil penalties, and 3 attorneys’ fees under Song-Beverly and the MMWA.4 Opp’n at 8. However, the 4 Defendants’ evidence is too speculative to meet this burden. 5 a. Actual Damages 6 Actual damages under Song-Beverly involve restitution of the “amount equal to the 7 actual price paid or payable by the buyer,” minus the reduction in value “directly 8 attributable to use by the buyer” prior to the first repair attempt for “the problem that gave 9 rise to the [defect].” Botnick v. BMW of N. Am., LLC, 20-CV-10880-ODW, 2021 WL 10 2804899, at *2 (C.D. Cal. July 6, 2021); Cal. Civ. Code §§ 1793.2 (d)(2)(B)–(C). 11 Defendants present some evidence to specify what those actual damages might be, but this 12 evidence relies on “speculative and conclusory allegations.” Pl.’s Mot. at 8, 15. 13 i. Kelley Blue Book Estimate 14 Defendants contend that Perkins can recover at least $20,974 in actual damages 15 based on one piece of evidence: a Kelley Blue Book (“KBB”) estimate of “the lowest 16 possible trade-in value for a base model 2014 Mercedes-Benz GLK 250 in ‘Fair’ condition 17 . . . , with 100 miles on the odometer, and in the Los Angeles market” as assessed on June 18 15, 2022. NOR ¶ 8; Opp’n at 6–7; NOR Ex. B (dkt. 1-2). They then assert that the 19 maximum recoverable civil penalties are at least $41,948 (two times $20,974 in actual 20 damages). See NOR ¶ 9; Opp’n at 7. Using this calculation, the amount in controversy is 21 at least $62,922, even without attorneys’ fees. See id. 22 Defendants’ reliance on the provided KBB-trade-in value of a hypothetical car that 23 is the same make and model year of the Vehicle does not make sense for three reasons. 24 First, Defendants’ submitted evidence contradicts their conclusion that $20,974 is 25 “the lowest possible [KBB-]trade-in value for a base model 2014 Mercedes-Benz GLK [27] 4 Defendants’ math is as follows: $20,974 (actual damages) added to $41,948 (civil penalty of 1 250 in ‘Fair’ condition . . . with 100 miles on the odometer, and in the Los Angeles 2 market.” NOR ¶ 8; Opp’n at 7. Counsel for Defendants submits that, “[b]ased on KBB, 3 and as set forth in Exhibit B, the lowest trade-in value for a base model 2014 Mercedes4 Benz GLK 250 in ‘Fair’ condition . . . with 100 miles on the odometer, and in the Los 5 Angeles market, is $23,745.00.” Gallagher Decl. (dkt. 1) ¶ 3; Tahsildoost Decl. (dkt. 25-1) 6 ¶ 3 (emphasis added). While counsel further states that “[t]he trade-in value is lower than 7 what a vehicle would be sold for at retail,” they do not explain this discrepancy. Id. In 8 addition, “a true and correct copy of the [KBB] vehicle valuation” submitted by counsel 9 lists a trade-in range of $19,752–$22,195. Gallagher Decl. ¶ 3; NOR Ex. B; Tahsildoost 10 Decl. Ex. B (dkt. 25-3) (emphasis added). Though the document identifies $20,974 as a 11 trade-in value, it appears that the lowest possible KBB-trade-in value for the vehicle 12 searched is less than $20,974. NOR Ex. B; Tahsildoost Decl. Ex. B. 13 Second, critical inputs used to generate the $20,974 KBB-trade-in value are 14 arbitrary and unrelated to the Vehicle at issue. The KBB estimate reflects a vehicle with 15 only 100 miles on the odometer that would be listed in the Los Angeles market. Gallagher 16 Decl. ¶ 3; NOR Ex. B. While counsel for MBUSA explains that she “input[ted] the miles 17 of the Vehicle as 100 miles, since the Complaint does not allege the Subject Vehicle was 18 purchased used,” the complaint also does not allege that Perkins purchased the Vehicle 19 when it was new. Gallagher Decl. ¶ 3; see generally Compl. Moreover, as Perkins states, 20 Defendants have failed to show “how the Los Angeles market is relevant in [any] [way] to 21 Plaintiff’s instant action, which Plaintiff initially filed in the Superior Court of California, 22 for the County of Marin.” Pl.’s Mot. at 9; see generally NOR; Opp’n. Nothing in the 23 record indicates that the Vehicle was purchased in Los Angeles.5 24 Third, it is “unclear how the current trade-in value of a similar model vehicle is in 25 [any] [way] reflective of Plaintiff’s actual damages here, nor does Defendant provide any [27] 5 Perkins also asserts that inputting the Vehicle as being in “Fair” condition according to KBB’s 1 explanation for such an assertion.” Pl.’s Mot. at 9; see NOR ¶¶ 8–10. Even though 2 Defendants had the opportunity to explain themselves, they failed to do so, and the Court 3 is left to guess how exactly the KBB estimate is representative of potential actual damages 4 associated with rescission, replacement, diminution in value, or reimbursement. See 5 generally Opp’n. It remains unclear how the KBB’s June 2022 valuation of a used vehicle 6 with 100 miles on the odometer is at all illustrative of the value of a defective vehicle that 7 was purchased in November 2014. See Compl. ¶ 10; Opp’n 3–7; see also Chung v. FCA 8 US LLC, 21-CV-04577-AB-MAA, 2021 WL 4280342 , at *2 (C.D. Cal. Sept. 20, 2021) 9 (“[N]either calculation makes much sense because the KBB value is the current value of a 10 used vehicle, not the value of the defective but new vehicle [when it was purchased].”). 11 Defendants neither address Chung nor describe the probative value of the KBB-trade-in 12 estimate in this case. See generally Opp’n. 13 Accordingly, Defendants’ KBB evidence is too speculative to estimate the 14 minimum recoverable actual damages to any reasonable degree. See Chung, 2021 WL 15 4280342, at *2. 16 ii. Mileage Offset 17 Perkins also argues that Defendants’ evidence of actual damages fails because they 18 did not include a mileage offset to the Vehicle’s value. Pl.’s Mot. at 11–13; Reply (dkt. 19 27) at 4–5. As noted above, actual damages under Song-Beverly involve the original 20 purchase price minus value “directly attributable to use by the buyer” prior to the first 21 repair attempt. Botnick, 2021 WL 2804899 , at *2; Cal. Civ. Code §§ 1793.2 (d)(2)(B)–(C). 22 The adjustment, often referred to as the “mileage offset,” is based on the number of miles a 23 buyer drove the Vehicle prior to the first attempted repair. Schneider v. Ford Motor Co., [24] 441 F. Supp. 3d 909 , 915 (N.D. Cal. 2019). Perkins first presented the Vehicle for repair 25 in 2016 with 43,248 miles on the odometer. Compl. ¶ 17. 26 Defendants contend that they did not have to account for a mileage offset because 27 “[Perkins] is pursuing claims for violation of implied warranty under Song-Beverly and the 1 Defendants forget that Perkins’ complaint also includes claims concerning express 2 warranty violations under the Acts that do provide for a mileage offset.6 Compl. ¶¶ 23, 32, 3 38, 43–44, 55, 61; see also Cal. Civ. Code §§ 1793.2 (d)(1)–(2)(C); 15 U.S.C. § 2310 (d). 4 In similar warranty cases, this Court has held that it could not estimate total actual 5 damages where a defendant failed to calculate a mileage offset. See Edwards, 2022 WL 6 854515, at *4 (“[Defendant] has failed to present any evidence of how the mileage offset 7 would affect the overall amount in actual damages. Therefore, [Defendant] has not, by a 8 preponderance of the evidence, demonstrated that actual damages exceed $75,000.”). 9 * * * 10 Because the KBB estimate is speculative and there is no mileage offset, Defendants 11 have not shown any actual damages by a preponderance of the evidence. 12 b. Civil Penalties 13 Next, Perkins argues that Defendants failed to justify the inclusion of civil penalties 14 of two times Perkins’ alleged actual damages in their amount-in-controversy assessment. 15 Pl.’s Mot. at 13–15; Reply at 2–4. Perkins is wrong: It is well-established that civil 16 penalties under Song-Beverly are considered in the amount-in-controversy analysis. See, 17 e.g., Romo v. FFG Ins. Co., 397 F. Supp. 2d 1237, 1240 (C.D. Cal. 2005). Yet this issue 18 does not matter because, “if the amount of actual damages is speculative, . . . an attempt to 19 determine the civil penalty is equally uncertain.” Chavez v. FCA US LLC, 19-CV-0600320 ODW (GJSx), 2020 WL 468909 , at *2 (C.D. Cal. Jan. 27, 2020) (citations omitted). The 21 KBB-based evidence used to calculate actual damages is speculative, and the probative 22 value of that evidence only becomes more uncertain without a mileage offset. Therefore, [24] 6 Perkins’ first cause of action arises out of Cal. Civ. Code § 1793.2 (d) for MBUSA’s inability “to service or repair the Vehicle to conform to the applicable express warranties after a reasonable 25 number of opportunities.” Compl. ¶ 32 (emphasis added). The second arises out of Cal. Civ. Code § 1793.2 (b) for failure “to commence the service or repairs within a reasonable time and 26 fail[ure] to service or repair the Vehicle so as to conform to the applicable warranties within 30 days.” Id. ¶ 38 . The third arises out of Cal. Civ. Code § 1793.2 (a) for failure “to make available . 27 . . sufficient service literature and replacement parts to effect repairs during the express warranty period.” Id. ¶ 43 . The fifth alleges that “[MBUSA] violated the [MMWA] when it breached the 1 the Court cannot begin to reasonably construe a civil penalty in any amount and will not 2 include civil penalties here. See Mullin v. FCA US, LLC, 20-CV-2061-RSWL-PJW, 2020 3 WL 2509081 , at *4 (C.D. Cal. May 14, 2020) (“[B]ecause the amount of actual damages is 4 uncertain, the Court is unable to determine what civil penalties might be imposed.”). 5 c. Attorneys’ Fees 6 Finally, Perkins argues that Defendants fail to show that the claims reach the 7 $50,000 minimum because they do not provide sufficient evidence of attorneys’ fees.7 8 Pl.’s Mot. at 15–18. The Ninth Circuit recently held that “attorneys’ fees are not ‘costs’ 9 within the meaning of the MMWA and therefore may be included in the amount in 10 controversy if they are available to prevailing plaintiffs pursuant to state fee-shifting 11 statutes.” Shoner v. Carrier Corp., 30 F.4th 1144, 1148 (9th Cir. 2022). Song-Beverly 12 provides that “[i]f the buyer prevails in an action under this section, the buyer . . . [may] 13 recover . . . attorney’s fees based on actual time expended, determined by the court to have 14 been reasonably incurred.” Cal. Civ. Code § 1794 (d). Therefore, courts must allow “the 15 defendant [to] attempt to prove that future attorneys’ fees should be included in the amount 16 in controversy.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785 , 794–95 (9th 17 Cir. 2018). However, courts “may reject the defendant’s attempts . . . if the defendant fails 18 to satisfy this burden of proof.” Id. at 795 . 19 Defendants argue that “[f]ee awards in cases of this nature may be substantial,” 20 citing two cases with fee awards of at least $50,000. Opp’n at 7. Defendants also refer to 21 Exhibits A and B attached to a request for judicial notice submitted with their opposition to 22 establish that “plaintiffs’ attorneys are commonly awarded tens of thousands of dollars in 23 fees” in Song-Beverly actions. Id. at 8. But conclusory statements are insufficient without 24 evidence showing that the present case is substantively comparable to the cited cases. See 25 Edwards, 2022 WL 854515 , at *4; accord Makol v. Jaguar Land Rover N. Am., LLC, 1826 [27] 7 Perkins also argues that attorneys’ fees should not be considered at all in the amount in 1 CV-03414-NC, 2018 WL 3194424 , at *3 (N.D. Cal. June 28, 2018). Defendants have not 2 presented such evidence; the only discernable similarity between the present case and the 3 ones to which Defendants refer is the fact that they all involved Song-Beverly claims. See 4 Opp’n at 7–8; see also, e.g., Schneider, 441 F. Supp. at 914 (“All that Defendants claim is 5 that the same counsel appears in each case and that the subject-matter of the cases are the 6 same.”). The Court also cannot locate the “Exhibit A” or “Exhibit B” Defendants refer to 7 in the record. See Opp’n at 8; Defs.’ Request for Judicial Notice (“RJN”) (dkt. 26).8 8 Therefore, they have not shown by a preponderance of evidence that attorneys’ fees here 9 will be in the “tens of thousands of dollars.” Opp’n at 8. 10 Defendants next argue that potential attorneys’ fees in this case will “more likely 11 than not” amount to at least $15,800 based on Perkins’ counsel’s past practices. Id. 12 Defendants demonstrate that Perkins’ counsel has previously settled for $17,500 and has 13 been awarded $18,481.67 in fees and costs in similar cases. Id.; RJN Exs. C, D. This 14 evidence shows that counsel has charged $395–$475 per billable hour and billed 40 hours 15 in Song-Beverly cases. Opp’n at 8; RJN Ex. D. Defendants thus conclude that Perkins’ 16 counsel “will bill at least 40 hours litigating this matter (inclusive of appearance, 17 discovery, pleading and motion practice, and trial preparation)” and charge at least $395 18 per hour.9 Opp’n at 8 (emphasis in original). Perkins challenges this calculation because 19 Defendants do not explain how the instant case will generate similar fees and do not [21] 8 Defendants filed a request for judicial notice of two documents filed in California Superior Court to support their opposition to remand: (1) a Joint Stipulation Regarding Attorneys’ Fees, 22 Costs, and Expenses in Alexandria Morel v. Hyundai Motor America, CVRI210903 and (2) a Court Order on Plaintiff’s Motion for Attorneys’ Fees filed by Perkins’ counsel in Stacy Milne v. 23 Hyundai Motor America, 19SCV15081. Defs.’ RJN. Perkins has not opposed this request. Courts may take judicial notice of facts that are “not subject to reasonable dispute” because they 24 (1) are “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.” Fed. R. 25 Evid. 201(b). “Matters of public record may be judicially noticed, but disputed facts contained in those records may not.” Metaxas v. Lee, 503 F. Supp. 3d 923 , 934 (N.D. Cal. 2020) (citing Khoja 26 v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018)). This includes state and federal court documents related to matters at issue. U.S. ex rel. Robinson Rancheria Citizens Council v. 27 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Because the court documents Defendants present can be used to estimate attorneys’ fees in this case, the Court GRANTS their request for judicial 1 || provide evidence of attorneys’ fees accrued to date. Reply at 6—7. 2 While some courts have required defendants to “compare or contrast the litigation 3 || strategies or timelines” to adequately estimate attorneys’ fees, others have held that 4 || evidence of counsel’s hourly rates and fee awards in previous Song-Beverly cases 5 || sufficiently predict attorneys’ fees. Compare Schneider, 441 F. Supp. at 914 (finding 6 |} counsel’s past attorneys’ fees in Song-Beverly cases insufficient to estimate current 7 || attorneys’ fees), with Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004 , 1011 8 || (N.D. Cal. 2002) (including attorneys’ fees in the amount in controversy where defendant 9 || had evidence of counsel’s hourly rates and fee awards in other Song-Beverly cases) and 10 |} Makol, 2018 WL 3194424 , at *3 (indicating that “billing records from the Song-Beverly 11 || Act cases defense counsel has previously handled” would have persuaded the court to 12 || include attorneys’ fees in the amount in controversy). Given the specificity of this € 13 |} evidence, the Court will include the estimated $15,800 in attorneys’ fees in the amount in 14 || controversy. See Opp’n at 8. 15 Even with an estimated $15,800 in attorneys’ fees, Defendants have not shown that 16 || the amount in controversy is “more likely than not” at least $50,000 because of insufficient 5 17 |} evidence concerning Perkins’ actual damages and the resulting inability to estimate civil 5 18 || penalties. Therefore, the Court lacks subject matter jurisdiction and remands to state court. 19 || Iv. CONCLUSION 20 For the foregoing reasons, the Court GRANTS Perkins’ Motion to Remand to the 21 || Superior Court for the County of Marin and DENIES AS MOOT Defendants’ Motion to 22 || Dismiss. 23 IT ISSO ORDERED. LE 24 Dated: October 14, 2022 25 United States District Judge