Cabrera v. S. Valley Almond Co., 1:21-CV-00748-AWI-JLT

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesALVARO LOPEZ CABRERA, on behalf of himself and all others similarly situated, Plaintiff, v. SOUTH VALLEY ALMOND COMPANY, LLC, a California limited liability company; AGRESERVES, INC., a Utah corporation; and DOES 1 through 100, inclusive, Defendants.
Docket Number1:21-CV-00748-AWI-JLT
Decision Date16 December 2021

ALVARO LOPEZ CABRERA, on behalf of himself and all others similarly situated, Plaintiff,

SOUTH VALLEY ALMOND COMPANY, LLC, a California limited liability company; AGRESERVES, INC., a Utah corporation; and DOES 1 through 100, inclusive, Defendants.

No. 1:21-CV-00748-AWI-JLT

United States District Court, E.D. California

December 16, 2021


Plaintiff Alvaro Lopez Cabrera (“Plaintiff”) moves to remand this putative wage and hour lass action to Kern County Superior Court. Doc. No. 4. For the reasons set forth below, the motion will be denied.


Plaintiff, a California resident, filed this putative class action against South Valley Almond Company, LLC (“South Valley”), a California limited liability company, and AgReserves, Inc. “AgReserves” and together with South Valley, “Defendants”), a Utah corporation, in Kern County Superior Court on April 1, 2021. Doc. No. 1-1 at 2, 3:5-11 & 3:14.[1]

As alleged in the Complaint, Plaintiff worked for Defendants in California as a non-exempt employee approximately from July 2012 through April 2020. Doc. No. 1-1 at 3:17-19. His


duties “included, but were not limited to, harvesting, piling, and cleaning almonds as well as tractor driving, irrigating, machine maintenance, and general labor.” Id. at 3:14-17. The Complaint recites claims “on behalf of Plaintiff and all other current and former non-exempt California employees employed by or formerly employed by Defendants” for (1) failure to pay overtime wages; (2) failure to pay minimum wages; (3) failure to provide meal breaks or payment in lieu thereof; (4) failure to provide rest breaks or payment in lieu thereof; (5) waiting time penalties for failure to timely pay all wages earned and due upon discontinuation of employment; (6) failure to issue accurate wage statements; (7) failure to indemnify for business expenses; and (8) unfair competition in violation of section 17200 of the California Business and Professions Code. Id. at 10:9-18:26.

AgReserves removed the action to this Court on May 7, 2021, Doc. No. 1, and Plaintiff filed a motion to remand on May 31, 2021.[2] Doc. No. 8.


Under 28 U.S.C. § 1441, “[a] defendant generally may remove an action filed in state court if a federal district court would have had original jurisdiction over the action.” Chavez v. JPMorgan Chase & Co, 888 F.3d 413, 415-16 (9th Cir. 2018) (citing 28 U.S.C. § 1441(a) and Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016)). Congress enacted the Class Action Fairness Act (“CAFA”) “to permit a defendant to remove certain class or mass actions into federal court.” Ibarra v. Manheim Inv., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (citing 28 U.S.C. § 1197). Under CAFA, district courts have original jurisdiction over class actions when there are at least 100 class members, minimal diversity (at least one plaintiff is diverse in citizenship from any defendant), and more than $5 million in controversy, exclusive of interest and costs. Id. at 1195, 1197 (citing 28 U.S.C. § 1332(d)).

In a notice of removal based on CAFA, a defendant need only plausibly allege that the


amount in controversy exceeds $5 million. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). If the plaintiff contests those allegations in a motion to remand, however, “the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” Id. at 88-89.

The preponderance of the evidence standard means the “defendant must provide evidence establishing that it is ‘more likely than not' that the amount in controversy exceeds” the jurisdictional minimum. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (citation omitted). A removing defendant is not obligated to “research, state, and prove the plaintiff's claims for damages, ” Taylor v. United Rd. Servs., Inc., 313 F.Supp.3d 1161, 1174 (E.D. Cal. 2018) (quoting Coleman v. Estes Express Lines, Inc., 730 F.Supp.2d 1141, 1147-48 (C.D. Cal. 2010)), but a defendant must set forth the “underlying facts supporting its assertion that the amount in controversy exceeds [the statutory minimum].” Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). Further, where a defendant relies on a chain of reasoning that includes assumptions to satisfy its burden of proof, “those assumptions cannot be pulled from thin air but need some reasonable ground underlying them.” Ibarra, 775 F.3d at 1199.

The Ninth Circuit has “defined the amount in controversy as the ‘amount at stake in the underlying litigation.' ” Gonzales, 840 F.3d at 648-49 (quoting Theis Research, Inc. v. Brown & Bain, 400 F.3d 659, 662 (9th Cir. 2005)). “[T]his includes any result of the litigation, excluding interest[] and costs, that ‘entail[s] a payment' by the defendant, ” id. (quoting Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007)), such that, inter alia, “damages (compensatory, punitive, or otherwise) and the cost of complying with an injunction, as well as attorneys' fees awarded under fee shifting statutes” are all properly included in amount-in-controversy calculations. Id. (citing Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1046 n.3 (9th Cir. 2000)).

In other words, the amount in controversy “is simply an estimate of the total amount in dispute, not a prospective assessment of defendant's liability.” Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010) (citation omitted). “In that sense, the amount in controversy reflects the maximum recovery the plaintiff could reasonably recover.” Arias v. Residence Inn by Marriott,


936 F.3d 920, 927 (9th Cir. 2019) (emphasis original); see Chavez, 888 F.3d at 417 (explaining that the amount in controversy includes all amounts “at stake” in the litigation at the time of removal, “whatever the likelihood that [the plaintiff] will actually recover them”).

“In assessing the amount in controversy, [courts] may consider allegations in the complaint and in the notice of removal, as well as summary-judgment-type evidence relevant to the amount in controversy, ” Chavez, 888 F.3d at 416 (citation omitted), including “supplemental evidence later proffered by the removing defendant, which was not originally included in the removal notice.” Korn v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199, 1205 (E.D. Cal. 2008) (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002)). “If a defendant fails to meet the requisite burden of proof, a court must remand for lack of subject matter jurisdiction.” Armstrong v. Ruan Transp. Corp., 2016 WL 6267931, at *2 (C.D. Cal. Oct. 25, 2016); see also, Kelton Arms Condo. Owners Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003).


Plaintiff argues that the CAFA amount-in-controversy estimate set forth in AgReserves's notice of removal is not properly supported by evidence as to the size of the putative class, hourly rates of pay or the number of workweeks worked by putative class members. Doc. No. 8 at 8:4-11. Further, Plaintiff argues that AgReserves relies on “bare, baseless and wildly exaggerated assumptions” with respect to the frequency and nature of alleged violations. Id. at 8:12-15. For example, Plaintiff contends that it is improper to assume a “100% violation rate for overtime and that all putative class members are owed a full two hours of overtime per week.” Id. at 8:17-18. In addition, Plaintiff contends that AgReserves fails to show more than $75, 000 in controversy on Plaintiff's individual claims, as required for removal based on traditional diversity jurisdiction under 28 U.S.C. § 1332(a), and that both the complete diversity required for § 1332(a) removal and the minimal diversity required for CAFA removal are lacking. Id. at 9:8-16.

AgReserves's Opposition

AgReserves's opposition focuses solely on CAFA removal and is based almost entirely on an expert declaration prepared by Joseph A. Krock, Ph.D. (the “Krock Declaration”). See Doc. Nos. 12 & 12-3.


AgReserves provided Dr. Krock with Bi-Weekly Payroll Data, Time Data, and a list of its “exempt” employees. Doc. No. 12-3 at 4:6, 10-12. Dr. Krock identified members of the putative class-which he characterized as “non-exempt California employees of AgReserves”-by “limiting the analysis to Process Levels[3] 215 (‘ARI-Deseret Farms of California') and 277 (‘ARI-South Valley Farms')” and “excluding all employees identified as exempt by AgReserves.” Id. at 5:17-22. Bi-Weekly Payroll Data contained information such as “employee IDs, name, process level, pay codes, hours worked, amounts paid, and check dates” for 1, 120 employees over 34, 558 bi-weekly pay periods ending January 10, 2016 through April 25, 2021. Id. at 5:24-6:5. Based on this Bi-Weekly Payroll Data, Dr. Krock identified 944 putative class members who worked 25, 911 bi-weekly pay periods from April 5, 2017 through April 25, 2021. Id. at 6:1-2. Time Data contained information such as “employee IDs, names, Process Levels, punch times, and punch dates” for 1, 052 employees working 327, 232 shifts over 31, 066 bi-weekly pay periods from April 3, 2017 through June 7, 2021. Id. at 6:10-16. Based on Time Data, Dr. Krock identified 972 putative class members who worked 304, 642 shifts over 28, 637 bi-weekly pay periods between April 5, 2017 and June 7, 2021. Id. at 6:12-16.

Dr. Krock states that he was able to “analyze data for 929 putative class members who worked 309, 193 shifts across 29, 019 bi-weekly pay periods” from April 5, 2017 through June 7, 2021 by combining Bi-Weekly Payroll Data with Time Data and that he “only included employees with at least one pay period with both time and payroll data” in his analysis. Doc. No. 12-3 at 6:19-22. Further, Dr. Krock identified 554 putative class members whose employment with...

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