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Federal National Mortgage v. Juan Lozano; Norma Lozano; and Does 1 Through 25

June 26, 2012


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 San Joaquin ("Superior Court"), which also seeks a recovery of attorney's fees and costs (Dkt. No. 3).*fn1 Defendant Juan Lozano failed to file a written opposition or other response to plaintiff's motion to remand, and defendant Norma Lozano 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. The undersigned recommends that plaintiff's request for attorney's fees and costs be denied.


On December 20, 2011, plaintiff initiated a limited civil case*fn3 in the Superior Court by filing a Verified Complaint for Unlawful Detainer, which notes that the amount demanded "is less than $10,000.00" ("Complaint"). (Compl. at 1, attached to Notice of Removal as part of Ex. A, at Dkt. No. 1 at 11-12.*fn4 ) Plaintiff filed its case seeking to recover possession of the subject residential property located in Stockton, California. (Compl. ¶ 2.)

The Complaint alleges that on or about November 2, 2011, plaintiff became the owner of the property by purchasing it at a trustee's sale following foreclosure proceedings, and that plaintiff perfected title in its own name. (Compl. ¶ 3.) Attached to the Notice of Removal is a Trustee's Deed Upon Sale recorded with the San Joaquin County Recorder's office on November 29, 2011 (Dkt. No. 1 at 15-18).

Plaintiff alleges that on December 9, 2011, it provided defendants with a notice to vacate the premises and deliver possession of the property within three days if they were the previous owners, which appears to be the case (Dkt. No. 1 at 20-22). Plaintiff alleges that defendants failed to timely vacate and deliver possession of the property and continue to possess and occupy the property. (Compl. ¶¶ 5, 7.) Through this action, plaintiff seeks: (1) restitution of the premises, (2) damages for unlawful detention at a rate of $60 per day of hold-over occupancy from the expiration of the notice to vacate through the entry of judgment; and (3) costs of suit. (Id. at 2.)

Defendant Juan Lozano appears to have filed a demurrer to the Complaint in the Superior Court, but it is unclear when Mr. Lozano filed the demurrer (see Dkt. No. 1 at 26-31). 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.) It further represents that the demurrer was not sustained. (Id. ¶ 9.) For its part, plaintiff represents in its motion that the demurrer was filed on January 13, 2012, that the demurrer was overruled, and that Mr. Lozano filed an Answer to the Complaint on February 24, 2012. (Mot. to Remand at 3-4.) However, none of these representations is substantiated by a declaration or judicially noticeable documents. In any event, the facts concerning the filing and denial of the demurrer, and the filing of the answer, are not material to the resolution of the motion to remand.

Mr. Lozano removed this unlawful detainer action to federal court on April 5, 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.*fn5 (Notice of Removal ¶¶ 5-6, 10.) Mr. Lozano asserts that "[f]ederal question jurisdiction exists because Defendants' [sic] demurrer, a pleading depend on the determination of Defendants' [sic] rights and Plaintiff's duties under federal law." (Id. ¶ 10.) The implication of Mr. Lozano's statement appears to be that he believes this case was removable on the basis of his defense to the unlawful detainer action premised on the adequacy of the notice to quit under the Protecting Tenants at Foreclosure Act of 2009. Defendant Norma Lozano did not join in the removal, and the record does not suggest that she consented to the removal.

On May 30, 2012, plaintiff filed its motion to remand, arguing that this court lacks subject matter jurisdiction over its single unlawful detainer claim, that Mr. Lozano's removal was untimely, and that the Notice of Removal is "defective in form and content."*fn6 As noted above, Juan Lozano failed to oppose or otherwise respond to the motion to remand, and Norma Lozano has not yet appeared in federal court.


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 ...

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