The opinion of the court was delivered by: The Honorable Dolly M. Gee, United States District Judge
Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
VALENCIA VALLERY NOT REPORTED
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)
None Present None Present
Proceedings: IN CHAMBERS-ORDER REMANDING ACTION TO SAN BERNARDINO COUNTY SUPERIOR COURT
On December 2, 2011, Plaintiff S & S Investment, Inc. filed a complaint in San Bernardino County Superior Court for unlawful detainer against Defendants Lilia G. Rubio, Joaquin Rubio Mata, and Does 1 through 10. Plaintiff seeks possession of real property and restitution for Defendants' use and occupancy of the property in the amount of $75 per day starting on December 2, 2011. (Compl. at 3.) On December 12, 2011, Sandra Visconte, who claims to have occupied the subject property at the time that this action commenced and asserts a right of possession therein, joined this action as a defendant by filing a declaration pursuant to California Code of Civil Procedure section 415.46. Visconte then removed the case to this Court on February 3, 2012, asserting subject matter jurisdiction on the basis of a federal question. See 28 U.S.C. §§ 1331, 1441.
"The burden of establishing federal subject matter jurisdiction falls on the party invoking removal." Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). There is a "strong presumption against removal jurisdiction," and courts must reject it "if there is any doubt as to the right of removal in the first instance." Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation marks omitted).
The complaint contains no federal question on its face. Visconte nonetheless contends that Plaintiff has engaged in "artful pleading" because federal law preempts an unlawful detainer action in California. (Notice of Removal [Doc. # 1] ¶¶ 6-7.) Specifically, Visconte points to the Protecting Tenants at Foreclosure Act of 2009 ("PTFA"), Pub. L. No. 111-22, § 702, 123 Stat 1632, 1660-61 (codified at 12 U.S.C. § 5220 notes).*fn1 She argues that the PTFA preempts an
"It is 'settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case.'" Hunter v. Philip Morris USA, 582 F.3d 1039, 1042-43 (9th Cir. 2009) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)) (emphasis added). Visconte disputes that PTFA preemption is a defense. According to Visconte, Plaintiff cannot state a cause of action to remove a tenant following foreclosure without an allegation that it complied with the PTFA's 90-day notice requirement. (Notice of Removal ¶ 13.)
Although Visconte is correct that an unlawful detainer plaintiff "must allege and prove proper service of the requisite notice," Palm Prop. Invs., LLC v. Yadegar, 194 Cal. App. 4th 1419, 1425, 123 Cal. Rptr. 3d 816 (2011) (quoting Liebovich v. Shahrokhkhany, 56 Cal. App. 4th 511, 513, 65 Cal. Rptr. 2d 457 (1997)), it does not follow that an unlawful detainer action presents a federal question. Even if, as Visconte contends, California's notice requirements are less strict than those imposed by federal law, "the plaintiff is 'the master of his complaint' and may 'avoid federal jurisdiction by relying exclusively on state law.'" Hunter, 582 F.3d at 1042 (quoting Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000)). That Plaintiff anticipates a PTFA defense (see Notice of Removal ¶ 13 ("The notice purports to comply with the PTFA . . . .")) does not raise a federal question. See Hunter, 582 F.3d at 1042-43. To the extent Visconte asserts that Plaintiff failed to comply with the PTFA, this assertion is best characterized as a defense or potential counterclaim. Aurora Loan Servs., LLC v. Montoya, No. 2:11--cv--2485--MCE--KJN--PS, 2011 WL 5508926, at *3, 2011 U.S. Dist. LEXIS 129905, at *11 (E.D. Cal. Nov. 9, 2011).
Accordingly, the Court rejects Visconte's contention that the PTFA provides a basis for federal question jurisdiction. The complaint simply does not present a federal question-either explicitly or implicitly. Nor does the ...