Pitsick-Perez v. Southwest Airlines Co. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RAYMOND PITSICK-PEREZ, on behalf
of himself, all others similarly situated,
and on behalf of the general public,
Plaintiffs,
v.
SOUTHWEST AIRLINES CO.; and
DOES 1-100,
Defendants.
Case No.: 25-cv-03000-DMS-BLM
ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND
[ECF No. 8]
Pending before the Court is Plaintiff’s motion to remand this case to San Diego
County Superior Court (“State Court”). (Mot., ECF No. 8.) Defendant filed a response in
opposition, (Opp’n, ECF No. 13), and Defendant filed a reply. (Reply, ECF No. 15.) The
matter is suitable for resolution without oral argument pursuant to Civil Local Rule
7.1(d)(1). (ECF No. 16.) For the following reasons, the Court grants Plaintiff’s motion to
remand.
I. BACKGROUND
Plaintiff originally filed this action in State Court on August 1, 2025, (Notice of
Removal, ECF No. 1, at 1, 6), alleging violations of California’s Private Attorney General
Act (“PAGA”), Cal. Lab. Code § 2698 et seq., for failure to (1) pay regular rate wages for
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all work performed; (2) pay wages due at termination and during employment; (3) comply
with itemized employee wage statements; and (4) pay employees two times per month.
(Id., Ex. 1, at 1.) On November 5, 2025, Defendant removed the case to federal court
pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. (Id. at 6.) Plaintiff now moves for remand
to State Court.
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction, possessing only that power
authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013)
(internal quotation marks and citation omitted). A suit filed in state court may be removed
to federal court if the federal court would have had original jurisdiction over the suit, based
on federal question or diversity of citizenship of the parties and an amount in controversy
that exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a), 1441(a). An action may be
removed based on diversity jurisdiction only where there is complete diversity between the
parties. See Hunter v. Phillip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). “If at any
time before final judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.” 28 U.S.C. § 1447(c). “It is to be presumed that a cause lies
outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Hunter, 582 F.3d at 1042 (quoting
Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006)). “The ‘strong
presumption against removal jurisdiction means that the defendant always has the burden
of establishing that removal is proper,’ and that the [district] court resolves all ambiguity
in favor of remand to state court.” Id. (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir. 1992) (per curiam)).
III. DISCUSSION
A state-court action can be removed on diversity grounds only where there is
complete diversity between the parties and the amount in controversy exceeds $75,000. 28
U.S.C. §§ 1332(a), 1441(a). Defendant has met its burden of showing the parties are
diverse. Plaintiff is a resident and citizen of California, (Notice of Removal 8–9),
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Defendant is incorporated in Texas with its principal place of business in Texas, (id. at 9),
and Doe Defendant citizenship is disregarded when determining removal jurisdiction. 28
U.S.C. § 1441(b)(1). Therefore, complete diversity exists.
However, Defendant fails to meet its burden of showing the requisite amount in
controversy. Courts evaluate diversity jurisdiction, including the amount in controversy,
at the time of removal. Kenneth Rothschild Tr. v. Morgan Stanley Dean Witter, 199 F.
Supp. 2d 993, 1000 (C.D. Cal. 2002). “A court must assume that the allegations of the
complaint are true and assume that a jury will return a verdict for the plaintiff on all claims
made in the complaint.” Id. at 1001 (citation modified) (citation omitted). “The failure of
the Complaint to specify the total amount of damages or other monetary relief sought by
Plaintiff does not deprive this Court of jurisdiction.” (Notice of Removal 10); Saulic v.
Symantec Corp., No. SA-CV-07-610, 2007 WL 5074883, *5 (C.D. Cal. Dec. 26, 2007).
“When the plaintiff’s complaint does not state the amount in controversy, the defendant’s
notice of removal may do so.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574
U.S. 81, 84 (2014). “[W]hen a defendant seeks federal-court adjudication, the defendant’s
amount-in-controversy allegation should be accepted when not contested by the plaintiff
or questioned by the court.” Lindsey v. WC Logistics, Inc., 586 F. Supp. 3d 983, 991 (N.D.
Cal. 2022) (quoting Dart Cherokee Basin, 574 U.S. at 87). But if a plaintiff contests the
allegations, “both sides submit proof and the court decides, by a preponderance of the
evidence, whether the amount-in-controversy requirement has been satisfied.” Id. (quoting
Dart Cherokee Basin, 574 U.S. at 88).
Here, the Complaint does not specify a total damages sum. Defendant argues the
amount in controversy exceeds $75,000, based on the following calculations:
Basis Amount in Controversy
Attorneys’ Fees Through Trial Exceeds $100,000
PAGA Penalties—Failure to Pay Straight
Wages
$6,100 ($100 initial violation + ($200
subsequent violations * 30 pay periods))
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PAGA Penalties—Failure to Pay Wages
Upon Termination
$6,100 ($100 initial violation + ($200
subsequent violations * 30 pay periods))
PAGA Penalties—Failure to Provide
Accurate Wage Statements and Payroll
Records
$3,600 (($100 initial violation * 31 pay
periods) + $500)
PAGA Penalties—Failure to Pay Wages
Twice per Month
$6,100 ($100 initial violation + ($200
subsequent violations * 30 pay periods))
Total Exceeds $121,900
(Notice of Removal 12–15). In its Opposition, (Opp’n 8), Defendant changes the
calculation of the amount in controversy as follows:
Basis Amount in Controversy
Attorneys’ Fees Through Trial $88,125
PAGA Penalties—Failure to Pay Straight
Wages
$7,100 ($100 initial violation + ($200
subsequent violations * 35 pay periods))
PAGA Penalties—Failure to Pay Wages
Upon Termination
$7,100 ($100 initial violation + ($200
subsequent violations * 35 pay periods))
PAGA Penalties—Failure to Provide
Accurate Wage Statements and Payroll
Records
$4,100 (($100 initial violation * 36 pay
periods) + $500)
PAGA Penalties—Failure to Pay Wages
Twice per Month
$7,100 ($100 initial violation + ($200
subsequent violations * 35 pay periods))
Plaintiff’s Service Award $12,500
Total $126,025
“The amount in controversy includes the amount of damages in dispute, as well as
attorney’s fees, if authorized by statute or contract.” Kroske v. U.S. Bank Corp., 432 F.3d
976, 980 (9th Cir. 2005). PAGA provides that “[a]ny employee who prevails in any action
shall be entitled to an award of reasonable attorney’s fees.” Cal. Lab. Code § 2699(k)(1).
Plaintiff argues this Court should calculate attorneys’ fees by utilizing a percentage
method and points to several district courts in PAGA cases that calculate attorneys’ fees at
25 percent of the plaintiff’s individual PAGA penalties. (Mot. 15); see, e.g., Evers v. La-
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Z-Boy Inc., No. 22CV578, 2022 WL 4379311, at *3 (S.D. Cal. Sept. 22, 2022); Coffin v.
Magellan HRSC, Inc., No. 19-CV-2047, 2020 WL 773255, at *6 (S.D. Cal. Feb. 18, 2020);
Mendoza v. Movement Mortg., LLC, No. 24-CV-03479, 2025 WL 1646897, at *5 (E.D.
Cal. June 11, 2025). Defendant argues that because PAGA is a fee-shifting statute, the
Court must utilize the lodestar method. (Opp’n 10); Cacon v. Litke, 105 Cal. Rptr. 3d 214,
233 (Ct. App. 2010) (noting the California Supreme Court has “reaffirmed the primacy of
the lodestar method for all fee-shifting statutes”); Steenhuyse v. UBS Fin. Servs., Inc., 317
F. Supp. 3d 1062, 1072 (N.D. Cal. 2018) (holding PAGA’s fee-shifting statute requires a
lodestar calculation when determining attorneys’ fees). Other courts exercise “discretion
to choose between the lodestar and percentage method in calculating fees.” Evers, 2022
WL 4379311, at *3 (citing In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992
(9th Cir. 2010)). Regardless of the method used, Defendant fails to meet its burden.
A. Lodestar Method
“The lodestar figure is calculated by multiplying the number of hours the prevailing
party reasonably expended on the litigation (as supported by adequate documentation) by
a reasonable hourly rate for the region and for the experience of the lawyer.” In re
Bluetooth Headset Products Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (citations
omitted). Defendant argues that, when applying an estimate of 150 hours at rates of $650
and $525 per hour (assuming a 50/50 split of hours between the rates), the request for
attorneys’ fees amounts to $88,125. (Opp’n 11–12.) Plaintiff argues that “only Plaintiff’s
pro-rata share of the attorney’s fees is attributable to the amount in controversy.” (Mot. 15
(citing Canela v. Costco Wholesale Corp., 971 F.3d 845, 850 n.2 (9th Cir. 2020) and Cohen
v. Regal Cinemas, Inc., No. 2:25-cv-00770, 2025 WL 1860286, at *9 (E.D. Cal. July 3,
2025)).) Even so, Defendant argues: (1) courts have recognized that an attorney handling
an individual wage and hour case “typically spends far more than 100 hours on the case[,]”
and (2) Plaintiff’s counsel, David Mara, previously submitted a declaration in Los Angeles
Superior Court, stating that he and associate Matthew Crawford spent a total of 156 hours
litigating a wage and hour case (82 and 74 hours), at rates of $800 and $600 per hour,
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respectively. (Opp’n 11–12; id., Decl. of Andrew B. Dizon in Supp. of Opp’n (“Dizon
Decl.”) ¶ 2, Ex. A, at 15–16.) Defendant argues that applying a “conservative estimate of
150 hours associated with litigating Plaintiff’s individual PAGA claim,” and “reduced
rates” of $650 and $525 per hour (derived from Ott v. Cooper Interconnect, Inc. A Corp.,
No. 2:23-cv-04501, 2023 WL 5530028, at *3 (C.D. Cal. Aug. 25, 2023)), the request for
fees amounts to $88,125.1 (Opp’n 11–12.) The Court does not find these arguments
persuasive.
First, Mr. Mara’s declaration was submitted in support of a motion for approval of a
PAGA settlement. (Id., Dizon Decl. ¶ 2, Ex. A, at 6.) Many of the tasks Mr. Mara includes
when determining the hours spent litigating the case were undoubtedly performed on behalf
of the entire PAGA class, such as “revising mediation brief and mediation damage and
exposure model”; “review[ing] and revis[ing] the settlement agreement and the notice to
the aggrieved employees”; “reviewing and revising PAGA settlement approval motion and
supporting papers”; and “review[ing] Settlement Administrator’s declaration.” (Id., Dizon
Decl. ¶ 2, Ex. A, at 15–16.) Thus, Mr. Mara’s declaration alone is insufficient to prove the
attorneys’ fees amount to $88,125 for Plaintiff’s individual PAGA claim.
Defendant also argues that counsel in an individual wage and hour case “typically
spends far more than 100 hours on the case[,]” citing Swans v. Fieldworks, LLC, No.
22CV07250, 2023 WL 196918, at *3 (C.D. Cal. Jan. 17, 2023) (emphasis added); see also
Hernandez v. Aramark Food & Support Servs. Grp., Inc., No. 20-CV-03633, 2020 WL
5496172, at *5 (N.D. Cal. Sept. 11, 2020) (similar); Lippold v. Godiva Chocolatier, Inc.,
No. C 10-00421, 2010 WL 1526441, at *4 (N.D. Cal. Apr. 15, 2010) (similar). However,
those cases are distinguishable from the present case. Swans involved “nine causes of
action alleging a wide range of wage and hour violations.” Swans, 2023 WL 196918, at
*1. Similarly, Hernandez involved eight causes of action, including failure to pay
1 Defendant assumes a 50/50 split of hours between Messrs. Mara and Crawford based on representations
in Mr. Mara’s declaration. (See Opp’n 12 n.4.)
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overtime, provide meal and rest breaks, and reimburse necessary business expenses—all
separate and distinct Labor Code violations. See Hernandez, 2020 WL 5496172, at *1.
And, Lippold involved eight causes of action, including unpaid overtime, meal and rest
break violations, and failure to timely pay wages during employment and upon
termination.2 In contrast, Plaintiff argues the “the issues in this case are incredibly narrow”
in that “[t]he case centers on whether Defendant was required to pay for time aggrieved
employees spent waiting for and taking the shuttle to and from a remote parking lot,” and
the three remaining claims are derivative. (Reply 5.) Defendant does not sufficiently show,
either through the cited cases or other evidence, that the circumstances of this case are such
that this is the “typical” individual wage and hour action that requires 150 hours or more
of work. Because the Court must “resolve all ambiguity in favor of remand,” Hunter, 582
F.3d at 1042, Defendant has failed to show a Lodestar attorneys’ fees calculation in this
case would approximate $88,125.
B. 25% Benchmark
When determining the amount in controversy in a PAGA case, the percentage
method calculates attorneys’ fees by taking 25% of the total potential liabilities for PAGA
penalties. See Coffin, 2020 WL 773255, at *5–6. Even using Defendant’s highest civil
penalty estimate of $25,400, the amount in controversy with attorneys’ fees would be
$31,750 ($25,400 for Defendant’s penalty estimation + $6,350 for attorney’s fees (i.e., 25%
of $25,400) = $31,750).3 (Reply 4.) This falls well short of the $75,000 threshold.
2 Lippold also attributed all of the attorneys’ fees, for individual and class-wide damages, to the named
plaintiff alone. See Mitchell v. Grubhub Inc., No. CV1505465, 2015 WL 5096420, at *7 (C.D. Cal. Aug.
28, 2015) (finding the defendant’s reliance on Lippold unpersuasive when calculating attorneys’ fees to
determine the amount in controversy).
3 Even considering Plaintiff’s representative service award—which Plaintiff disputes applies—the amount
in controversy would only be $44,250.
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Regardless of the method used for calculating attorneys’ fees, Defendant has not met
its burden of establishing the amount in controversy exceeds the jurisdictional minimum.
The Court therefore lacks subject matter jurisdiction.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s motion to remand and
REMANDS this action to the State Court.
Dated: January 15, 2026
________________________________
Hon. Dana M. Sabraw
United States District Judge
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