Removal to Federal Court

Cal. Super. - 6th Dist.May 4, 2021

LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AITORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP BRIAN C. VANDERHOOF, SB# 248511 E-Mail: Brian.Vanderhoof@lewisbrisbois.com JONATHAN WON, SB# 293910 E-Mail: Jonathan.Won@lewisbrisbois.com 333 Bush Street, Suite 1100 San Francisco, CA 94104 Telephone: 415.262.8592 Facsimile: 415.434.0882 Attorneys for Defendant FORD MOTOR COMPANY SUPERIOR COURT OF THE Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/26/2021 12:01 PM Reviewed By: R. Tien Case #21 CV38221 0 Envelope: 7144955 STATE OF CALIFORNIA COUNTY OF SANTA CLARA ABELARDO GARCIA JIMENEZ aka ABELARDO JIMENEZ and BRENDA PRECIADO, Plaintiffs, VS. FORD MOTOR COMPANY, a Delaware Corporation; and DOES 1 through 10, inclusive , Defendants. Case N0. 21CV3882210 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT Action Filed: May 5, 2021 Trial Date: None Set TO THE HONORABLE COURT, PLAINTIFFS HEREIN, AND THE RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendant FORD MOTOR COMPANY (“Defendant”) has filed in the United Stated Distn'ct Court for theNORTHERN District ofCalifornia a Notice ofRemoval 0f the above-captioned case pursuant to the United States Code, Title 28, Section 1441(b). A copy 0f Defendant’s Notice 0fRem0val is attached hereto as Exhibit A. PLEASE TAKE FURTHER NOTICE that pursuant to 28 U.S.C. section 1446(d), the filing 0f the Notice of Removal, together with this Notice, effects the removal 0f the action and the above- captioned State court is requested t0 proceed n0 further unless and until the case is remanded. 481 1-6771-2760.1 1 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT 1 DATED: August 26, 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP 3 By; 29M 4 BRIAN C. VANDERHOOF JONATHAN WON 5 Attorneys for Defendant FORD MOTOR COMPANY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LEWIS 28 BRISBOIS 481 1-6771-2760.1 2 3"ng DEFENDANT FORD MOTOR COMPANY’S NOTICE 0F REMOVAL 0F STATE COURT ACTION To THE ArronNEYSATLAw UNITED STATES DISTRICT COURT EXHIBIT A LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW \OOOQQU‘I-RUJNr-d NNNNNNNNNv-‘r-Ar-‘r-‘r-Ar-‘v-‘r-Ar-‘H OOQO’NUl-bUJNP-‘OKDOOQQUI-RUJNP-‘O Case 5:21-cv-04967-VKD Document 1 Filed 06/28/21 Page 1 of 7 LEWIS BRISBOIS BISGAARD & SMITH LLP BRIAN C. VANDERHOOF, SB# 248511 E-Mail: Brian.Vanderhoof@lewisbrisbois.com JONATHAN WON, SB# 293910 E-Mail: Jonathan.Won@lewisbrisbois.com 333 Bush Street, Suite 1100 San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 Attorneys for Defendant FORD MOTOR COMPANY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ABELARDO GARCIA JIMENEZ aka Case No. ABELARDO JIMENEZ and BRENDA PRECIADO, an individual, DEFENDANT FORD MOTOR Plaintiffs, COMPANY’S NOTICE OF REMOVAL vs. Superior Court Action: 21CV382210 FORD MOTOR COMPANY, a Delaware Corporation; and DOES 1 through 20, Trial Date: None Set inclusive, Defendants. NOTICE OF REMOVAL TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendant Ford Motor Company (“Ford”), by its counsel LEWIS BRISBOIS BISGAARD & SMITH, LLP, hereby removes t0 this court, pursuant t0 28 U.S.C. §§ 1332, 1441, and 1446, based 0n diversity of citizenship, the claims pending as Case N0. 21CV382210 of the Superior Court of California, County of Santa Clara. In support 0f this removal, Ford states as follows: /// /// /// 4823554142561 1 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW \OOOQQU‘I-RUJNr-d NNNNNNNNNv-‘r-Ar-‘v-‘r-Ar-‘v-‘r-Ar-‘H OOQO’NUl-bUJNF-‘OKDOOQO‘xUl-RUJNP-‘O Case 5:21-cv-04967-VKD Document 1 Filed 06/28/21 Page 2 of 7 THE REMOVED CASE 1. The removed case is a civil action commenced in the Superior Court of California, County of Santa Clara by Plaintiffs Abelardo Garcia Jimenez aka Abelardo Jimenez and Brenda Preciado against Ford, entitled Abelardo Garcia Jimenez aka Abelardo Jimenez and Brenda Preciado V. Ford Motor Company, et a1. Case No. 21CV382210 (the “State Action”). The only named Defendant is Ford Motor Company (“Ford”). 2. Plaintiffs filed the State Action on May 4, 2021, asserting breach of warranty allegations against Ford. PROCEDURAL REQUIREMENTS 3. Ford has thirty (3 0) days from the date of service 0r receipt 0f a copy of the Complaint t0 remove a case. 28 U.S.C. § 1446(b). Ford was served With a copy 0f the Complaint 0n May 28, 2021. This Notice 0f Removal is therefore timely filed pursuant to Rule 6 of the Federal Rules of Civil Procedure. 4. Pursuant to 28 U.S.C. § 1446(a), copies 0f all process, pleadings, and orders for the State Action in Ford’s possession are contained in Exhibit A t0 the Declaration 0f Jonathan Won filed herewith. 5. Pursuant t0 28 U.S.C. § 1446(a), venue is proper in the Northern Central District of California because this district embraces the place in which the removed action has been pending. 6. Pursuant to 28 U.S.C. § 1446(d), a true and correct copy of this Notice of Removal Will be filed With the Superior Court 0f California, County 0f Santa Clara promptly after filing 0f same in this Court. 7. Pursuant to 28 U.S.C. § 1446(d), written notice of filing of this Notice of Removal Will be given t0 all adverse parties promptly after the filing 0f same in this Court. 8. Consistent with Congress’ intent that parties may amend allegations ofjurisdiction if they are questioned, see 28 U.S.C. § 1653, this Court should not sua sponte remand this action, see Shockley v. Jones, 823 F.2d 1068, 1072-73 (7th Cir. 1987) (“This court has noted that sua sponte dismissals Without prior notice 0r opportunity to be heard are ‘hazardous’ A dismissal under Rule 12(b)(1) Without notice or a hearing is similarly suspect”). Thus, if any question arises as t0 4823554142561 2 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW \OOOQQU‘I-RUJNr-d NNNNNNNNNv-‘r-Ar-‘r-‘r-Ar-‘v-‘r-Ar-‘H OOQO’NUl-bUJNP-‘OKDOOQO‘xUl-RUJNP-‘O Case 5:21-cv-04967-VKD Document 1 Filed 06/28/21 Page 3 of 7 the propriety of this removal, Ford requests the opportunity to amend its notice ofremoval following any necessary discovery, briefing, and oral argument. 9. Nothing in this Notice 0fRemoval shall be interpreted as a waiver or relinquishment ofFord’s right to assert defenses including, without limitation, the defenses of (i) lack ofjurisdiction over person, (ii) improper venue and/or forum non conveniens, (iii) insufficiency 0f process, (iv) insufficiency 0f service 0fprocess, (V) improper joinder of claims and/or parties, (Vi) failure to state a claim, (Vii) failure to join indispensable party(ies), (viii) the right to arbitrate this controversy, or (ix) any other procedural 0r substantive defense available under state 0r federal law. THE AMOUNT IN CONTROVERSY REQUIREMENT IS MET 10. The amount in controversy in this action exceeds $75,000, exclusive 0f interest and costs. See 28 U.S.C. § 1332. 11. The removing party’s initial burden is to “file a notice 0f removal that includes ‘a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.”’ Ibarra v. Manheim Invs., Ina, 775 F.3d 1193, 1195 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating C0., LLC v. Owens, 135 S. Ct. 547, 554 (2014)). “By design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a)” which requires only that the grounds for removal be stated in a “short and plain statement.” Dart, 135 S. Ct. at 553. 12. Generally, a federal district court will first “consider whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is in controversy.” Abrego v. Dow Chem. C0. , 443 F.3d 676, 690 (9th Cir. 2006) (internal citation omitted). But a defendant may remove a suit t0 federal court notwithstanding the failure of the plaintiff to plead the required amount. Absent the facial showing from the complaint, the court may consider facts averred in the removal petition. Id. Next, if the defendant’s allegati0n(s) regarding the amount in controversy is challenged, then “both sides submit proof and the court decides, by a preponderance 0f the evidence, Whether the amount- in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1195. At that time, “it may be appropriate t0 allow discovery relevant to [the] jurisdictional amount prior t0 remanding.” Abrego, 443 F.3d at 691 (internal citation omitted). 4823554142561 3 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW \OOOQQU‘I-RUJNv-d NNNNNNNNNv-‘r-Ar-‘v-‘r-Ar-‘r-‘r-Ar-‘H OOQO’NUl-bUJNP-‘OKDOOQO‘xUl-RUJNP-‘O Case 5:21-cv-04967-VKD Document 1 Filed 06/28/21 Page 4 of 7 13. Ford disputes that it is liable for any damages whatsoever to Plaintiffs. Nevertheless, Ford can demonstrate that the amount in controversy exceeds $75,000 under the “preponderance 0f the evidence” standard. See Guglielmino v. McKee Foods Corp, 506 F.3d 696, 699 (9th Cir. 2007). The standard requires only that the removing party present evidence that “it is more likely than not” that the amount in controversy is satisfied. Id. 14. In the case at bar, the Plaintiffs seek both rescission 0f the subject vehicle and monetary relief. This is a consumer warranty action involving allegations that Ford’ s vehicle did not perform as warranted. Plaintiffs allege breach of express and implied warranties under the Song- Beverly Consumer Warranty Act (Cal. CiV. Code § 1790 et seq.) (Compl. W 15-35). 15. Plaintiffs allege that on 0r about May 5, 2016, Plaintiffs entered into a warranty contract With Ford regarding a 201 6 Ford F-250, and that “defects and nonconformities to warranty manifested themselves Within the applicable express warranty period. . .” and that the nonconformities “substantially impair the, use, value and/or safety 0f the Subj ect Vehicle.” (Compl. W 14-16, 28). 16. Plaintiffs allege that they are entitled t0 reliefunder the Song-Beverly Act including: reimbursement 0f the price paid for the Subject Vehicle, incidental damages, consequential damages, general damages, diminution in value, civil penalty ofup t0 two times the amount ofactual damages, and other relief that the Court deems appropriate. (Compl. at Prayer for Relief; Compl. 1H] 23-26, 36-39 ). 17. Civil penalties under the Song-Beverly Act are properly included in the calculation. Brady v. MercedeS-Benz USA, Ina, 243 F. Supp. 2d 1004, 1009 (N.D. Cal. 2002). The amount in controversy also includes reasonable estimates 0f attorney’s fees. Id. at 101 1; Guglielmino v. McKee Foods Corp, 506 F.3d 696, 700 (9th Cir. 2007); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998). 18. The Song-Beverly Act allows for the recovery of attorney’s fees and costs, Which regularly exceed $100,000 When litigated through trial. (Declaration of Brian Vanderhoof “Vanderhoof Decl.”, 11 5, filed concurrently herewith). 19. If Plaintiffs were to prevail on their Song-Beverly claims, they could be awarded 4823554142561 4 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW \OOOQONU‘I-RUJNr-d NNNNNNNNNr-‘r-Ar-‘v-‘r-Ar-‘v-‘r-Ar-‘H OOQO’NUl-RUJNP-‘OKDOOQO‘xUl-RUJNP-‘O Case 5:21-cv-04967-VKD Document 1 Filed 06/28/21 Page 5 of 7 damages 0f $75,000 0r more if awarded statutory civil penalties. Even before taking attorneys’ fees into account, the suggested retail price 0f $70,620.00 plus $141,240 as a two-times civil penalty pursuant t0 the Song-Beverly Act, totals $21 1,860. (Declaration of Jonathan Won “Won Decl.” 1] 7). Moreover, the amount in controversy is satisfied even if the Court were t0 consider the mileage off-set allowed by Song-Beverly. Ford is aware that the subject vehicle was presented for single repair under warranty repair by Plaintiffs at 35,081 miles. (Won Decl. 1] 11, Exhibit D). If the trier of fact were to calculate the mileage offset based on 35,081 miles, based on the suggested retail price, the mileage off-set would be $20,645.16 resulting in a buyback amount 0f $49,974.84 plus a potential civil penalty ofno more than $99,949.68 for a total amount in controversy 0f $ 149,924.52. 20. Thus, the total amount in controversy far exceeds $75,000 even before adding Plaintiffs’ claim for statutory attorneys’ fees and costs 0r prejudgment interest. The amount in controversy requirement is satisfied. DIVERSITY OF CITIZENSHIP EXISTS A. Plaintiffs and Ford are diverse. 21. Plaintiffs were, and was at the time of filing of the Complaint, citizens 0f California. 22. Ford is, and was at the time Plaintiffs commenced this action, a corporation incorporated in and organized under the laws of the State of Delaware with its principal place of business in Michigan. This Court can take judicial notice of these facts. See Excerpt from Ford’s 2016 Form lO-K filing, Exhibit C to Won Decl.; see also Fed. R. EVid. 201(b)(2) (courts may judicially notice facts that “can be accurately and readily determined from sources Whose accuracy cannot reasonably be questioned”). 23. For the reasons stated above, there is diversity of citizenship between Plaintiffs, Who are California citizens, and Ford, a citizen 0f Michigan and Delaware. CONCLUSION Consequently, the State Action may be removed to this Court by Ford in accordance with the provisions 0f28 U.S.C. § 1441 because: (i) this action is a civil action pending Within the jurisdiction 0f the United States District Court for the Central District 0f California, (ii) the action is solely 4823554142561 5 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW \OOOflQUl-RUJNr-d NNNNNNNNNHr-AHHr-AHHHHH OOQONLII-RUJNF-‘OKDOOQO‘xUl-RUJNF-‘O Case 5:21-cv-04967-VKD Document 1 Filed 06/28/21 Page 6 of 7 between properly joined citizens 0f different states, and (iii) the amount in controversy exceeds $75,000.00, exclusive of interest and costs. DATED; June 28, 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP 4823-5541-4256.1 By: /s/Brian C. Vanderhoof BRIAN C. VANDERHOOF JONATHAN WON Attorneys for Defendant FORD MOTOR COMPANY 6 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW KOOOQQU‘I-RUJNr-d NNNNNNNNNv-‘r-Ar-‘v-‘r-Ar-‘r-‘r-Ar-‘H OOQONLII-RUJNF-‘OKDOOQO‘xUl-RUJNP-‘O Case 5:21-cv-04967-VKD Document 1 Filed 06/28/21 Page 7 of 7 FEDERAL COURT PROOF OF SERVICE Jimenez V. Ford Motor Company Case N0. 21CV382210 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, Iwas over 18 years 0f age and not a patty t0 the action. My business address is 333 Bush Street, Suite 1100, San Francisco, CA 94104-2872. 1am employed in the office of a member of the bar 0f this Court at whose direction the service was made. On June 28, 2021, I served the following document(s): DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL I served the documents 0n the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): Steve Mikhov Attorney for Plaintiffs Amy Morse Knight Law Group, LLP Email: emailsewice@knightlaw.com 10250 Constellation B1Vd., Suite 2500 stevem@knightlaw.com Los Angeles, CA 90067 amvm@knight1aw.com Telephone: (3 10) 552-2250 Fax: (310) 552-7973 The documents were served by the following means: E (BY COURT’S CM/ECF SYSTEM) Pursuant to Local Rule, I electronically filed the documents with the Clerk 0f the Court using the CM/ECF system, which sent notification of that filing to the persons listed above. I declare under penalty of perjury under the laws 0f the United States 0fAmerica and the State 0f California that the foregoing is true and correct. Executed 0n June 28, 2021, at San Francisco, California. Q@mW-a Charmaine Villavert 4823554142561 1 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL LEWIS BRISBOIS BISGAARD &SI\/Irn-ILLP AHORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CALIFORNIA STATE COURT PROOF OF SERVICE Jimenez V. Ford Motor Company Case N0. 21CV382210 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time 0f service, Iwas over 18 years 0f age and not a party to this action. My business address is 333 Bush Street, Suite 1100, San Francisco, CA 94104-2872. On August 26, 2021, I served true copies 0f the following document(s): DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT I served the documents 0n the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): Steve Mikhov Attorney for Plaintiffs Amy Morse Knight Law Group, LLP Email: emailsewice@knightlaw.com 10250 Constellation B1Vd., Suite 2500 stevem@knightlaw.com Los Angeles, CA 90067 amvm@knight1aw.com Telephone: (3 10) 552-2250 Fax: (310) 552-7973 The documents were served by the following means: E (BY ELECTRONIC TRANSMISSION ONLY) Only by e-mailing the document(s) t0 the persons at the e-mail address(es) listed above based on notice provided 0n March 16, 2020 that, during the Coronavirus (COVID-19) pandemic, this office Will be working remotely, not able t0 send physical mail as usual, and is therefore using only electronic mail. N0 electronic message or other indication that the transmission was unsuccessful was received Within a reasonable time after the transmission. I declare under penalty 0f perjury under the laws of the State 0f California that the foregoing is true and correct. Executed 0n August 26, 2021, at San Francisco, California. Q@mW-a Charmaine Villavert 481 1-6771-2760.1 3 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT