Salatino v. American Airlines, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DYAN SALATINO, and JERREL Case No.: 23-CV-1779 JLS (BLM) PARKER, an individual, on behalf of [12] themselves and on behalf of all persons ORDER DENYING PLAINTIFF 13 similarly situated, DYAN SALATINO’S MOTION TO REMAND TO STATE COURT 14 Plaintiffs, 15 v. (ECF No. 12) 16 AMERICAN AIRLINES, INC., a corporation; and DOES 1 through 50, [17] inclusive, [18] Defendants. [19] 20 Presently before the Court are Plaintiff Dyan Salatino’s Motion to Remand Case to 21 State Court (“Mot.,” ECF No. 12) and Memorandum of Points and Authorities (“Mem.,” 22 ECF No. 12-1) in support thereof. Defendant American Airlines, Inc., filed an Opposition 23 to the Motion (“Opp’n,” ECF No. 16) and two supporting declarations: the Supplemental 24 Declaration of Deann Collins (“Collins Decl.,” ECF No. 16-1) and the Supplemental 25 Declaration of Alexandra Vivoli (“Vivoli Decl.,” ECF No. 16-2). Plaintiff then submitted 26 a Reply (“Reply,” ECF No. 18). The Court took this matter under submission without oral 27 argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 17. Having carefully 28 considered the Parties arguments and the law, the Court DENIES Plaintiff’s Motion. 1 BACKGROUND 2 Plaintiff initiated this putative class action by filing her Complaint (“Compl.,” ECF 3 No. 1-2) on June 20, 2023, in the Superior Court of California, County of San Diego. The 4 Complaint contains nine causes of action, including alleged violations of (1) California 5 Business and Professional Code §§ 17200, et seq. (Unlawful Business Practices); 6 (2) California Labor Code §§ 1194, 1197, and 1197.1 (Unpaid Minimum Wages); 7 (3) California Labor Code § 510 (Unpaid Overtime Wages); (4) California Labor Code 8 §§ 226.7 and 512 (Failure to Provide Meal Breaks); (5) California Labor Code §§ 226.7 9 and 512 (Failure to Provide Rest Periods); (6) California Labor Code § 226 (Failure to 10 Provide Accurate Wage Statements); (7) California Labor Code § 2802 (Failure to 11 Indemnify Employees for Expenditures); (8) California Labor Code §§ 201, 202, and 203 12 (Failure to Timely Pay Final Wages); and (9) California Labor Code §§ 201 through 204, 13 210, 233, and 246 (Failure to Pay Sick Pay Wages). See generally Compl. 14 On September 27, 2023, Defendant removed this action to this Court pursuant to [15] 28 U.S.C. §§ 1132 , 1441, 1446, and 1453. See Notice of Removal (“NOR”) at 1, ECF 16 No. 1. Defendant claimed this Court had diversity jurisdiction under the Class Action 17 Fairness Act (“CAFA”) pursuant to 28 U.S.C. §§ 1132 (d) and 1441. Id. Plaintiff’s Motion 18 followed. 19 LEGAL STANDARD 20 Generally, defendants may remove to the appropriate federal district court “any civil 21 action brought in a State court of which the district courts of the United States have original 22 jurisdiction.” 28 U.S.C. § 1441 (a). “The propriety of removal thus depends on whether 23 the case originally could have been filed in federal court.” City of Chicago v. Int’l Coll. of 24 Surgeons, 522 U.S. 156, 163 (1997). “The party seeking the federal forum bears the burden 25 of establishing that the statutory requirements of federal jurisdiction have been met.” 26 Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 978 (9th Cir. 2013). 27 CAFA gives federal courts jurisdiction over certain class actions if (1) the class has 28 more than 100 members, (2) the parties are minimally diverse, and (3) the amount in 1 controversy exceeds $5,000,000. 28 U.S.C. §§ 1332 (d)(2), (d)(5)(B); see also Standard 2 Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013). While courts typically “strictly 3 construe the removal statute against removal jurisdiction,” Gaus v. Miles, Inc., [4] 980 F.2d 564, 566 (9th Cir. 1992), “no antiremoval presumption attends cases invoking 5 CAFA,” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81 , 89 (2014). 6 To satisfy CAFA’s amount-in-controversy requirement, “a removing party must 7 initially file a notice of removal that includes ‘a plausible allegation that the amount in 8 controversy exceeds the jurisdictional threshold.’” LaCross v. Knight Transp. Inc., [9] 775 F.3d 1200, 1202 (9th Cir. 2015) (quoting Dart Cherokee, 574 U.S. at 89). At that 10 point, the “notice of removal ‘need not contain evidentiary submissions.’” Arias v. 11 Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019) (quoting Ibarra v. Manheim 12 Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015)). 13 However, when a plaintiff contests the defendant’s calculations, “both sides submit 14 proof and the court decides, by a preponderance of the evidence, whether the amount-in15 controversy requirement has been satisfied.” Dart Cherokee, 574 U.S. at 88. “The 16 preponderance of the evidence standard, in practical terms, requires the defendant to 17 provide persuasive evidence that ‘the potential damages could exceed the jurisdictional 18 amount,’ as opposed to requiring ‘a prospective assessment of defendant’s liability’ to any 19 degree of certainty.” Richards v. Now, LLC, No. 218CV10152SVWMRW, [20] 2019 WL 2026895 , at *5 (C.D. Cal. May 8, 2019) (internal citations omitted) (quoting 21 Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 397, 400 (9th Cir. 2010)). 22 The amount-in-controversy inquiry begins with the plaintiff’s complaint. Greene v. 23 Harley-Davidson, Inc., 965 F.3d 767, 771 (9th Cir. 2020). Beyond the complaint, parties 24 may provide “affidavits or declarations, or other ‘summary-judgment-type evidence.’” 25 Ibarra, 775 F.3d at 1197 (quoting Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373 , 26 377 (9th Cir. 1997)). Further, a defendant’s “damages assessment” may rely on “a chain 27 of reasoning that includes assumptions,” if such assumptions have “some reasonable 28 ground underlying them.” Id. at 1199. Once plaintiff has challenged removal, though, 1 defendants must establish that their assumptions are reasonable, not merely plausible. See 2 Arias, 936 F.3d at 927 . 3 In short, “CAFA’s requirements are to be tested by consideration of real evidence 4 and the reality of what is at stake in the litigation, using reasonable assumptions underlying 5 the defendant’s theory of damages exposure.” Ibarra, 775 F.3d at 1198 . Courts “weigh 6 the reasonableness of the removing party’s assumptions” and should “not supply further 7 assumptions of [their] own.” Harris v. KM Indus., Inc., 980 F.3d 694, 701 (9th Cir. 2020). 8 And while both parties may offer evidence, the burden of proof ultimately rests on the 9 removing defendant. “[I]f the evidence submitted by both sides is balanced, in equipoise, 10 the scales tip against federal-court jurisdiction.” Ibarra, 775 F.3d at 1199 . 11 ANALYSIS 12 The sole question before the Court is whether CAFA’s amount-in-controversy 13 requirement is met, as neither side disputes that the proposed class consists of more than 14 100 individuals or that the Parties are minimally diverse. As analysis of the unpaid meal 15 break and rest period allegations raised in the Complaint’s first cause of action suffice to 16 answer that question, the Court will not consider Plaintiff’s remaining claims. See Jauregui 17 v. Roadrunner Transp. Servs., Inc., 28 F.4th 989 , 995 n.8 (9th Cir. 2022). Before turning 18 to that analysis, however, the Court finds it useful to address some of the basics of CAFA 19 that litigants—including the Parties in this action—often get wrong: (1) the relative 20 burdens borne by plaintiffs and defendants, and (2) the meaning and manner of establishing 21 assumed violation rates. 22 I. CAFA’s Framework 23 In this case, the Parties argue primarily about two issues. First, they dispute the 24 applicable burdens of proof. Second, they disagree on the definition of violation rates and 25 how assumptions about such rates must be supported. In making both arguments, the 26 Parties misapply CAFA caselaw to varying degrees. 27 / / / 28 / / / 1 A. The Parties’ Burdens 2 As an initial matter, and as Plaintiff recognizes, see Reply at 9, Defendant’s Notice 3 of Removal and Opposition need not be held to the same standard. Plaintiff’s Motion 4 faulted Defendant for failing to include in the Notice of Removal any evidence regarding 5 how many meal-break- or rest-period-eligible shifts were worked by the putative class. See 6 Mem. at 16. But notices of removal “need not contain evidentiary submissions.” Ibarra, 7 775 F.3d at 1197. Defendants are given the opportunity to submit evidence, and alter their 8 initial calculations, when opposing a plaintiff’s motion to remand. See Biag v. King George 9 - J&J Worldwide Servs. LLC, No. 20-CV-307-BAS-DEB, 2020 WL 4201192 , at *4 10 (S.D. Cal. July 22, 2020). Defendant made use of that opportunity here, so only arguments 11 addressing the Opposition’s renewed estimates are relevant. 12 Plaintiff otherwise misunderstands Defendant’s burden. Namely, Plaintiff claims 13 Defendant “has not overcome the ‘strong presumption’ that the amount in controversy is 14 insufficient to confer federal jurisdiction.” Reply at 9 (quoting Henson v. Billing Concepts, 15 Inc., No. CV 09-218 PA (EX), 2009 WL 10453160 , at *2 (C.D. Cal. Mar. 23, 2009)). As 16 the Supreme Court has made exceedingly clear, however, “no antiremoval presumption 17 attends cases invoking CAFA.” Dart Cherokee, 574 U.S. at 82. Plaintiff might have 18 realized her mistake had she not inaccurately listed Henson—the case upon which she 19 relies—as a 2019 decision in her Reply, rather than the correct year of 2009. 20 Defendant, in turn, misunderstands the task before Plaintiff. Defendant claims 21 Plaintiff must present evidence to rebut Defendant’s math. See Opp’n at 22. But while 22 plaintiffs may submit evidence, they “need only challenge the truth of the defendant’s 23 jurisdictional allegations by making a reasoned argument as to why any assumptions on 24 which they are based are not supported by evidence.” Harris, 980 F.3d at 700 (emphasis 25 added) (citing Salter v. Quality Carriers, 974 F.3d 959, 964 (9th Cir. 2020)). In other 26 words, Plaintiff was not required to provide summary-judgment-type evidence of her own. 27 / / / 28 / / / 1 B. Violation Rates 2 Plaintiff primarily argues Defendant has not adequately supported one element of its 3 calculation: the rate at which Defendant may have hypothetically violated labor law. See 4 generally Reply. This argument is built on a flawed foundation, however, as Plaintiff 5 appears to misunderstand what such violation rates represent and the manner in which 6 violation rate assumptions must be supported. Plaintiff’s argument thus crumbles upon 7 inspection. To demonstrate the flaws in Plaintiff’s logic, the Court provides an overview 8 of the elements of a typical CAFA equation and how violation rates fit therein. 9 1. Elements of CAFA Calculations 10 At least in most wage and hour class actions, CAFA amount-in-controversy 11 estimates are premised on three variables: (1) the total number of possible violations; 12 (2) the frequency at which violations might have occurred; and (3) the potential cost 13 associated with each hypothetical violation. 14 The first variable speaks to the maximum number of instances in which a specific 15 kind of violation could have occurred. That figure is generally approximated by tying real 16 numbers to the readily quantifiable dimensions of a complaint’s allegations. For example, 17 to hypothesize how often an employer might have failed to compensate workers for their 18 missed meal breaks over a given period, one probably needs to know how many workers 19 the employer had (i.e., the class size), and how many meal-break-eligible shifts they 20 worked. The parameters for making such an estimate are easily pulled from the 21 complaint’s definition of the putative class. 22 The second variable is often called the violation rate, which is the frequency at which 23 violations might reasonably have occurred. In wage and hour suits, a violation rate 24 generally represents the percentage of shifts in which putative class members 25 hypothetically experienced a violation. See Holcomb v. Weiser Sec. Servs., Inc., [26] 424 F. Supp. 3d 840 , 845 n.2 (C.D. Cal. 2019) (“A 100% violation rate calculation 27 assumes violations occurring in every identified shift for each class member.”). So, if a 28 defendant assumed one violation occurred every four violation-eligible shifts, the 1 defendant would be using a violation rate of 1/4, or 25%. 2 The final variable represents the cost of each potential violation. The proper method 3 for estimating this figure, and the information required to do so, will depend on how a 4 given statute or regulation calculates a penalty. If, say, a penalty is defined as one hour of 5 pay at the state’s minimum wage, one must generally know what that statutory minimum 6 wage was during the class period. 7 Once each of these variables is assigned a value, the interplay between them is 8 relatively simple in most cases; the numbers need only be multiplied together. By way of 9 example, assume (1) a defendant’s employees worked 100 violation-eligible shifts, 10 (2) there is reason to think one violation may have occurred every two shifts; and (3) each 11 violation comes with a $10 penalty. The possible amount-in-controversy would be 12 calculated as (100 shifts) x (1 violation / 2 shifts; or 50%) x ($10 per penalty), resulting in 13 a total of $500. 14 2. Reasonable Grounds for Assumed Violation Rates 15 Plaintiff contends Defendant cannot reasonably assume any violation rate without 16 offering “real” evidence “regarding the frequency or nature of the alleged violations.” 17 Reply at 5. Plaintiff’s argument fails to appreciate the difference between the CAFA 18 variables discussed above. To the extent Plaintiff claims a violation rate assumption must 19 itself be supported by summary-judgment-type evidence from outside of the Complaint, 20 she is mistaken. 21 When estimating the first and third variables, a defendant must generally provide 22 evidentiary support. This is not surprising for several reasons. For one thing, evidence 23 regarding the total number of violation-eligible shifts, or the average cost of a violation, is 24 often readily available. An employer may be able to turn to its payroll system and quickly 25 pull a list of all employees who worked during a given period. Relatedly, plaintiffs’ 26 complaints are often vague on these points, so defendants have few places to look for 27 supporting information outside of their own records. Most important, though, is the 28 principle that CAFA does not require defendants to prove their actual liability. See Lewis, [1] 627 F.3d at 400 . Rather, defendants need only establish their “possible liability.” Greene, [2] 965 F.3d at 772 . And estimates of the number of workers, the length of their shifts, or their 3 average pay are not inherently incriminating; such evidence sheds no light on how often a 4 defendant actually violated the law, but instead points only to how often a defendant could 5 have done so. 6 Violation rates are different. Mandating evidentiary support for a violation rate 7 assumption is akin to “requir[ing] that [a defendant] prove it actually violated the law at 8 the assumed rate.” Arias, 936 F.3d at 927 . “[A] removing defendant is not required to go 9 so far . . . . ” Bryant v. NCR Corp., 284 F. Supp. 3d 1147, 1151 (S.D. Cal. 2018) (quoting 10 Feao v. UFP Riverside, LLC, No. CV173080PSGJPRX, 2017 WL 2836207 , at *5 11 (C.D. Cal. June 29, 2017)); see also Serrieh v. Jill Acquisition LLC, No. 2:23-CV-0029212 DAD-AC, 2023 WL 8796717 , at *4 (E.D. Cal. Dec. 20, 2023) (“[A] defendant is not 13 required to identify an exact frequency of violations for the purposes of calculating the 14 amount in controversy.”). For that reason, defendants may ground violation rate 15 assumptions in the language of a plaintiff’s complaint. See Arias, 936 F.3d at 927 (finding 16 defendant’s violation rate assumptions “plausible” and noting they “may prove reasonable 17 in light of the allegations in the complaint” (emphasis added)). 18 A defendant’s CAFA calculations might fall short due to insufficient evidence 19 regarding the first or third variables, or because the complaint’s allegations and the 20 defendant’s assumed violation rate are incongruous. Indeed, a defendant’s estimates may 21 fail on all three counts. But the arguments that apply to one variable do not necessarily, or 22 even usually, apply to the others. Plaintiff’s failure to understand that ultimately dooms 23 her bid for remand. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 II. Application 2 With the three-variable framework outlined above, the Court turns to the 3 Complaint’s1 meal break and rest period allegations and Defendant’s estimates. 4 A. Total Number of Possible Violations 5 Plaintiff alleges Defendant failed to provide California Class members with legally 6 required meal breaks and rest periods during the class period.2 Compl. ¶ 11–12. Estimating 7 the maximum number of possible violations thus requires determining the size of the 8 potential class and the number of violations they might have experienced. 9 The first consideration is the size of the California Class, which the Complaint 10 defines as “all individuals who are or previously were employed by Defendant in 11 California, including any employees staffed with Defendant by a third party, and classified 12 as non-exempt employees . . . at any time during the period beginning four (4) years prior 13 to the filing of [the] Complaint.” Compl. ¶ 4. Defendant produced evidence identifying 14 9,514 such individuals. Vivoli Decl. ¶ 10. Defendant also established that of those 15 employees, 3,970 were or are flight attendants. Id. ¶ 11. As it happens, payroll data for 16 flight attendants is maintained separately from the records of other employees. See Collins 17 Decl. ¶ 5. So, while flight attendants fall within Plaintiff’s class definition, Defendant 18 made its meal break and rest period calculations using a putative class of 5,544—the 19 number of non-flight-attendant workers. See Opp’n at 12 & n.1; Vivoli Decl. ¶¶ 12–13. 20 Next comes the number of violation-eligible shifts. In California, an employee who 21 works more than five hours per day is entitled to a meal break of at least thirty minutes. [22] Cal. Lab. Code § 512 . Meanwhile, employers must provide a ten-minute rest period for [24] 1 Plaintiff filed an Amended Complaint (“Am. Compl.,” ECF No. 22) on December 22, 2023. Still, the 25 Court looks only to the original Complaint because, subject to limited exceptions not applicable here, “whether remand is proper must be ascertained on the basis of the pleadings at the time of removal.” 26 Broadway Grill, Inc. v. Visa Inc., 856 F.3d 1274, 1277 (9th Cir. 2017). And in any event, a review of the Amended Complaint yields no changes that might otherwise have impacted the Court’s analysis. [28] 2 Defendant presumes, and Plaintiff does not dispute, that the class period runs from June 20, 2019, to 1 every four hours worked. Cal. Code Regs. tit. 8, § 11090 (12)(A). Because California law 2 mandates breaks only when employees work shifts of a certain length, courts generally 3 require defendants to provide evidence showing the number of shifts worked by the 4 putative class that were long enough to “permit[] meal and rest breaks.” Alvarez v. Off. 5 Depot, Inc., No. CV177220PSGAFMX, 2017 WL 5952181 , at *4 (C.D. Cal. 6 Nov. 30, 2017). Here, Defendant provided such evidence by showing that putative class 7 members worked 2,754,541 shifts of eight hours or more during the relevant period. Vivoli 8 Decl. ¶ 13. 9 Based on the foregoing evidence, Defendant has adequately established that meal 10 break and rest period violations could have occurred in a maximum of 2,754,541 shifts. 11 There is one more issue to address, though. Defendant posits that 5,509,082 rest period 12 violations could have occurred in the identified shifts. Defendant is technically right; 13 during an eight-hour shift, an employee is due two ten-minute rest periods. See Cal. Code 14 Regs. tit. 8, § 11090(12)(A). But under California Labor Code § 226.7, an employee is 15 limited to recovering “up to two” penalties per workday, “one for failure to provide one or 16 more meal periods, and another for failure to provide one or more rest periods.” United 17 Parcel Serv. Wage & Hour Cases, 125 Cal. Rptr. 3d 384, 393 (Ct. App. 2011) (emphasis 18 added). For purposes of this analysis, then, the California Class could seek compensation 19 for at most 2,754,541 meal break violations and 2,754,541 rest period violations. 20 B. Defendant’s Assumed Violation Rate 21 The Complaint alleges “Plaintiff and other California Class Members were from 22 time to time unable to take thirty (30) minute off duty meal breaks” during shifts of at least 23 five hours in length. Compl. ¶ 11. The Complaint similarly alleges “Plaintiff and other 24 California Class Members were required from time to time to work in excess of four (4) 25 hours without being provided ten (10) minute rest periods.” Id. ¶ 12. Per the Complaint, 26 these labor code violations resulted from Defendant’s “policy and practice.” Id. ¶ 54. 27 Given the Complaint’s “time to time” and “policy and practice” language, Defendant 28 assumes one meal break and one rest period were missed every ten eight-hour shifts 1 worked. See Opp’n at 12. Plaintiff seems to suggest that because Defendant assumed 2 “every single . . . class member[] suffered . . . one meal period violation ever [sic] other 3 workweek,” Defendant’s estimates are based on a 100% violation rate. Reply at 2–3. But 4 as discussed above, a violation rate represents the percentage of shifts in which a violation 5 occurs, not the percentage of class members experiencing a violation. See Holcomb, 6 424 F. Supp. 3d at 845 n.2. Defendant assumes putative class members experienced a 7 violation every ten shifts (a 10% violation rate), not every shift. As Defendant does not 8 assume it “always engaged in labor violations,” Reply at 3, the cases Plaintiff cites 9 regarding the unreasonableness of assuming violation rates of 100% are inapposite. 10 Further, Defendant’s 10% violation rate assumption is reasonable in light of the 11 Complaint’s “from time to time” and “policy and practice” allegations. Indeed, courts 12 routinely find similar language to provide a reasonable basis for assuming even higher 13 violation rates. See, e.g., Evers v. La-Z-Boy Inc., No. 21CV2100-LL-BLM, [14] 2022 WL 2966301 , at *5 (S.D. Cal. July 27, 2022) (“District courts in this circuit have 15 found violation rates ranging from 25% to 60% can be reasonably assumed as a matter of 16 law based on ‘pattern and practice’ or ‘policy and practice’ allegation[s].”); Cavada v. 17 Inter-Continental Hotels Grp., Inc., 2019 WL 5677846 , at *7 (S.D. Cal. Nov. 1, 2019) 18 (finding 10% rest period and 20% meal break violation rates reasonable considering “time 19 to time” and “policy and practice” allegations); Chavez v. Pratt (Robert Mann Packaging), 20 LLC, No. 19-CV-00719-NC, 2019 WL 1501576 , at *3 (N.D. Cal. Apr. 5, 2019) (deeming 21 20% rate reasonable where complaint alleged “pattern or practice” of violations). 22 Plaintiff’s remaining counterarguments are unavailing. Plaintiff correctly notes that 23 a violation rate assumption is not credible just because it is conservative. See Peters v. TA 24 Operating LLC, No. EDCV221831JGBSHKX, 2023 WL 1070350 , at *9 (C.D. Cal. 25 Jan. 26, 2023) (“[T]he problem is not necessarily that Defendants picked a violation rate 26 that is too high. The problem is that the Court cannot discern why it picked that number at 27 all . . . .”). However, Defendant is not precluded from using a conservative violation rate 28 if it is supported by Plaintiff’s own allegations. Additionally, the Court acknowledges that 1 perhaps evidentiary support could sometimes help establish a violation rate. That said, the 2 Court cannot fathom what additional evidence Defendant could raise here to support its 3 violation rate assumptions without proving how many violations actually occurred. See 4 Chavez, 2019 WL 1501576 , at *3 (“[Defendant] is ‘not obligated to research, state, and 5 prove’ [Plaintiff’s] claims.” (quoting Korn v. Polo Ralph Lauren Corp., [6] 536 F. Supp. 2d 1199 , 1204–05 (E.D. Cal. 2008))). 7 C. Cost of Each Violation 8 Failing to comply with California’s meal break and rest period requirements can 9 quickly become costly. An employer must pay an employee a premium of “one additional 10 hour of pay at the employee’s regular rate of compensation for each workday that the meal 11 or rest . . . period is not provided.” Cal. Lab. Code § 226.7 . Defendant’s evidence shows 12 that, during the relevant period, the 5,544 putative class members were paid $29.84 per 13 hour on average. Collins Decl. ¶ 4. Courts routinely accept a class’s average hourly rate 14 as a stand-in for calculating missed-break premiums. See, e.g., McCollum v. TGI Friday’s, 15 Inc., No. SACV2200392FWSJDE, 2022 WL 2663870 , at *5–*6 (C.D. Cal. July 11, 2022); 16 Sanchez v. Abbott Lab’ys, No. 2:20-CV-01436-TLN-AC, 2021 WL 2679057 , at *4 17 (E.D. Cal. June 30, 2021) (holding evidence showing “averages of the putative class” can 18 suffice for CAFA purposes). 19 D. Final Calculations 20 With values assigned to the pertinent variables, only straightforward arithmetic 21 remains. The total universe of potential violations includes 2,754,541 missed meal breaks 22 and 2,754,541 withheld rest periods. Using Defendant’s reasonable 10% violation rate 23 yields approximately 275,454 violations of each type. If every violation results in a penalty 24 equal to one hour of a putative class member’s regular rate of pay, or an average of $29.84 25 in this case, the amounts in controversy for these claims come to roughly $8,219,550 for 26 meal breaks and $8,219,550 for rest periods.3 These figures, either of which individually [28] 1 clears CAFA’s $5,000,000 hurdle, combine to a total of approximately $16,439,100. 2 CONCLUSION 3 Using real evidence and reasonable assumptions, Defendant has established by a 4 ||preponderance of the evidence that the amount in controversy exceeds $5,000,000. 5 || Plaintiff's Motion to Remand (ECF No. 12) is therefore DENIED. 6 IT IS SO ORDERED. 7 || Dated: March 7, 2024 jae L. Lo memeaiteg on. Janis L. Sammartino 9 United States District Judge