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H & K Investments, Lp v. Eugene D. Erfe; Donald Erfe

May 9, 2012

H & K INVESTMENTS, LP, PLAINTIFF,
v.
EUGENE D. ERFE; DONALD ERFE, AND DOES 1 TO 10, DEFENDANTS.



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

ORDER and FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's motion to remand this unlawful detainer action to the Superior Court of California for the County of San Joaquin ("Superior Court") (Dkt. No. 7).*fn1 Defendant Eugene D. Erfe failed to file a written opposition or any other response to plaintiff's motion to remand, and defendant Donald Erfe has not appeared in this action.

Because oral argument would not materially aid the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). Having reviewed the moving papers 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 the grounds that this court lacks federal subject matter jurisdiction over plaintiff's unlawful detainer claim.

I. BACKGROUND

On or around February 22, 2012,*fn2 plaintiff initiated a "limited civil" action*fn3 in the Superior Court by filing a complaint entitled "Complaint For Unlawful Detainer And Monetary Damages," which noted that the "Amount Demanded Does Not Exceed $10,000" ("Complaint"). (Compl. at 1, attached as Ex. A to Notice of Removal.) Plaintiff filed its case seeking to recover possession of the subject residential property located in Stockton, California. (Id. ¶ 1.)

The Complaint alleges that plaintiff purchased the property at a trustee's sale on February 8, 2012, and that "[p]laintiff's title has been duly perfected." (Compl. ¶ 4.) Plaintiff recorded a Trustee's Deed Upon Sale with the San Joaquin County Recorder's office on February 15, 2012. (Id. ¶ 5 & Exs. "1 & 2.")

Defendant Eugene Erfe appears to have been the former owner of the property, and both defendants resided at the property. (See Demurrer to Compl. at 5, attached as Ex. B to Notice of Removal.) Plaintiff alleges that on February 11, 2012, it provided defendants with a notice to vacate the premises and deliver possession of the property within three days. (See Compl. ¶ 6 & Ex. 3.) Plaintiff alleges that defendants failed to timely vacate and deliver possession of the property and continue to possess and occupy the property. (Id. ¶¶ 3, 7-8.) Through this action, plaintiff seeks: (1) possession of the subject property; (2) unpaid rental damages at a rate of $40 per day from February 14, 2012, through the entry of judgment; and (3) statutory damages of $600. (Compl. at 3.)

Eugene Erfe filed a demurrer to the Complaint in the Superior Court on March 7, 2012, arguing that the notice to quit served by plaintiff was defective. (See generally Demurrer, attached as Ex. B to Notice of Removal.) The Notice of Removal asserts that the demurrer was "based on a defective notice, i.e., the Notice to Occupants to Vacate Premises, failed to comply with The Protecting Tenants at Foreclosure Act [12 U.S.C. §5220]." (Notice of Removal ¶ 8.) Eugene Erfe later filed an answer to the Complaint. (Answer, attached as Ex. B to Notice of Removal.) In its motion to remand, plaintiff represents that the Superior Court overruled Eugene Erfe's demurrer and entered a default judgment as to defendant Donald Erfe (Pl.'s Memo. of P. & A. In Supp. of Mot. to Remand at 1), but those representations are not supported by evidence or a declaration. The Notice of Removal represents that the Superior Court "did not sustain the demurrer," but this representation is also not supported by evidence or a declaration. (Notice of Removal ¶ 9.) In any event, the resolution of the demurrer and the entry of a default judgment are not material to the resolution of the motion to remand.

Eugene D. Erfe removed this unlawful detainer action on April 11, 2012, pursuant to 28 U.S.C. § 1441(a), asserting that this court has subject matter jurisdiction over plaintiff's claim pursuant to 28 U.S.C § 1331.*fn4 (Notice of Removal ¶¶ 5-6, 10.) Defendant Donald Erfe did not join in the removal and has not appeared in this case following its removal to federal court. Eugene Erfe asserts that "[f]ederal question jurisdiction exists because Defendants' demurrer, a pleading depend on the determination of Defendants' rights and Plaintiff's duties under federal law." (Id. ¶ 10.) The implication of Eugene Erfe's statement appears to be that he believes this case was removable because of his defense to the unlawful detainer action premised on the adequacy of the notice to quit under the Protecting Tenants at Foreclosure Act.

On April 13, 2012, plaintiff filed its motion to remand, arguing that this court lacks subject matter jurisdiction over its single unlawful detainer claim. As noted above, Eugene Erfe failed to oppose or otherwise respond to the motion to remand, and Donald Erfe has not yet appeared in federal court.

II. LEGAL STANDARDS

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. . . .

28 U.S.C. § 1441(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 ...


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