Victor Garibay, individually v. Archstone Communities Llc, a Delaware limited liability company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR GARIBAY, individually and on
behalf of other members of the general
public similarly situated,
Plaintiff - Appellee,
v.
ARCHSTONE COMMUNITIES LLC, a
Delaware limited liability company;
ARCHSTONE PROPERTY
MANAGEMENT CALIFORNIA
INCORPORATED, a Delaware
corporation,
Defendants - Appellants.
No. 13-56151
D.C. No. 2:12-cv-10640-PA-VBK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted August 7, 2013**
Pasadena, California
FILED
AUG 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.***
Archstone Communities, LLC and Archstone Property Management
California, Inc. appeal the district court’s order granting Victor Garibay’s motion
to remand his class action complaint, which alleges violations of various California
wage and employment laws, to state court. We have jurisdiction under 28 U.S.C.
§ 1453(c), and we affirm.
The district court correctly held that the defendants did not meet their burden
to prove by a preponderance of the evidence that the amount in controversy
exceeds $5 million as required for federal jurisdiction under the Class Action
Fairnesss Act, 28 U.S.C. § 1332(d). See Abrego Abrego v. The Dow Chem. Co.,
443 F.3d 676, 685 (9th Cir. 2006) (per curiam). The only evidence the defendants
proffer to support their calculation of the amount in controversy is a declaration by
their supervisor of payroll, which sets forth only the number of employees during
the relevant period, the number of pay periods, and general information about
hourly employee wages. Beyond this, the defendants rely on speculative and self-
serving assumptions about key unknown variables. The district court correctly
*** The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.
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concluded that Archstone’s evidence was insufficient to support removal
jurisdiction under CAFA.
For example, Garibay alleged violations of Cal. Labor Code § 226, which
provides that employers who fail to provide employees with “an accurate itemized
[wage] statement” are subject to fines. Archstone’s calculations assume that every
single member of the class would be entitled to recover penalties for every single
pay period. Garibay also alleges violations of Cal. Labor Code § 203, which
provides that employers who fail to timely pay all earned wages upon termination
are subject to a fine equal to the employee’s normal wages for each day the wages
are late, up to a maximum of 30 days. Archstone assumes that each employee
would be entitled to the maximum statutory penalty, but provides no evidence
supporting that assertion. Along the same lines, Garibay alleged violations of Cal.
Labor Code § 226.7, which provides that employers who fail to provide adequate
meal or rest breaks must compensate the employee for an additional hour of pay.
Archstone assumes that each class member was wrongly denied a break twice each
week. As the district court correctly explained, Archstone failed to provide any
evidence regarding why the assumption that each employee missed two rest
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periods per week was more appropriate than “one missed rest period per paycheck
or one missed rest period per month.” Although Archstone correctly notes that
25% recovery is the “benchmark” level for reasonable attorney’s fees in class
action cases, see Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998),
and that such fees are properly included in calculations of the amount in
controversy, see Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 1000 (9th
Cir. 2007); Cal. Labor Code § 218.5, Archstone has not established by a
preponderance of the evidence that the underlying amount upon which those fees
would be based is at least $4 million, as would be required to meet the $5 million
minimum.
Finally, although the district court cited to Lowdermilk, 479 F.3d at 1002,
which applied the heightened “legal certainty” standard, it relied on that case for
the general proposition that we may not base our jurisdiction on mere speculation.
Contrary to Archstone’s assertions, the district court correctly identified and
applied the preponderance of the evidence standard.
When it initially sought removal, Archstone did not have the benefit of our
decision in Roth v. CHA Hollywood Med. Ctr., __F.3d__ [2013 WL 3214941] (9th
Cir. 2013). Under Roth, if Archstone later discovers evidence that the
jurisdictional bar is met, it may once again attempt to remove this case to federal
court.
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AFFIRMED.
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