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Aurora Loan Services, LLC v. Ramnar Montoya

November 8, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is plaintiff's motion to remand this unlawful detainer action to the Superior Court of California for the County of Solano ("Superior Court"). (Mot. to Remand, Dkt. No. 4.)*fn1 A review of the court's docket indicates that defendant Ramnar Montoya ("defendant") has not filed a written opposition to the pending motion to remand.

This matter came on for hearing before the undersigned on November 3, 2011. Attorney Ted Slabach attended on behalf of the plaintiff. There was no appearance on behalf of defendant.

Having reviewed the briefs and record in this case, the undersigned recommends that plaintiff's motion to remand be granted and that this case be remanded to the Superior Court on grounds that this court lacks subject matter jurisdiction over plaintiff's single claim for unlawful detainer.


On June 13, 2011, plaintiff Aurora Loan Services, LLC's ("Aurora" or "plaintiff") filed a Verified Complaint for Unlawful Detainer ("Complaint") in the Superior Court, Case Number FCM122724, seeking to recover possession of the property alleged to be situated in the County of Fairfield. (Notice of Removal, Dkt. No. 2, Exh. A thereto ("Compl.").) The Complaint alleges that plaintiff purchased the subject property at a trustee's sale that occurred in accordance with California state law and terms of the Deed of Trust executed by defendant, that plaintiff's title pursuant to that sale has been perfected, and that plaintiff is entitled to immediate possession of the property. (Compl. at 1-2.) It further alleges that plaintiff provided defendant, who once owned and apparently still occupies the property, with a written notice to vacate the premises and deliver possession of the property within 3 days after service of such notice, and that defendant failed to vacate and deliver possession. (Id.) Through this action, plaintiff seeks:

(1) restitution and possession of the subject property; and (2) damages at a rate of $70.00 per day from March 25, 2011, until the date of entry of judgment for each day that defendant remains in possession of the property.*fn2 (Compl. at 3.)

On September 19, 2011, defendant removed this matter to the United States District Court for the Eastern District of California. (Notice of Removal, Dkt. No. 2.) Defendant removed this case pursuant to "28 U.S.C. § 1446(a) and/or (b)" (Notice of Removal at 2), and asserted that "[t]he complaint presents federal questions" and cited "The Protecting Tenants at Foreclosure Act [12 U.S.C. § 5220]." (Notice of Removal at 2.) Defendant alleges that he asserted 12 U.S.C. § 5220 in a demurrer filed in the state court action, but that "the Superior Court . . . did not sustain the demurrer." (Id.) Defendant's Notice of Removal does not assert diversity as a basis for jurisdiction, and contains no allegations regarding citizenship or the jurisdictional amount.


In relevant part, the federal removal statute provides:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. . . .

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(a), (b). A defendant "desiring to remove any civil action" from state court to federal court must file a "notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant" in the state action.

28 U.S.C. § 1446(a). "The defendant bears the burden of establishing that removal is proper." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009), cert. denied, 131 S. Ct. 65 (2010). "The removal statute is strictly construed against removal jurisdiction," id., and removal jurisdiction "'must be rejected if there is any doubt as to the right of removal in the first instance.'" Geographic Expeditions, Inc. v. Estate of ...

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