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 Sacramento ("Superior Court") (Dkt. Nos. 7).*fn1
No written opposition or other response to plaintiff's motion
to remand was filed. 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.
On March 5, 2012, plaintiff initiated a limited civil case*fn3
in the Superior Court by
filing a Verified Complaint for Unlawful Detainer, which notes in the
caption that the amount demanded is "Up To $10,000" ("Complaint").
(Compl. at 1, attached as Ex. A to Notice of Removal.) Plaintiff seeks
to recover possession of the subject residential property located in
Sacramento, California. (Compl. ¶¶ 1, 8, and prayer for relief.)
In regards to the named defendant, defendant Dolores M. Underwood has not appeared in this case. It appears that Dolores M. Underwood is deceased and that Mark F. Underwood, who removed this case to federal court, claims to be a successor owner and successor defendant to Ms. Underwood. (See, e.g., Memo. of P. & A. In Supp. of Demurrer at 1 ("The subject property was owned by Mark F. Underwood."); Notice of Removal at 1 (Mark F. Underwood refers to himself as "defendant"); Notice of Interested Parties at 2 (referring to Mark F. Underwood as "Defendant being wrongfully evicted").) The court's docket reflects that in removing this case, Mr. Underwood paid the required filing fee "[for the benefit of] Dolores M. Underwood, deceased." At a minimum, the parties appear to agree that Mr. Underwood has been residing in the subject property.
The Complaint alleges that on or about January 3, 2012, plaintiff became the owner of the subject property by purchasing it at a trustee's sale following foreclosure proceedings, and that plaintiff perfected title in its own name. (Compl. ¶¶ 7-8.) Attached to the Notice of Removal is a Trustee's Deed Upon Sale recorded with the Sacramento County Recorder's office on January 18, 2012, which reflects the conveyance of the property to plaintiff.
Plaintiff alleges that on or about February 24, 2012, it served defendant, by mail and posting at the property, with a notice to vacate the premises and deliver possession of the property within three days.*fn4 (Compl. ¶ 10; see also Notice to Occupant to Vacate Premises, Feb. 22, 2012, attached to Notice of Removal.) Plaintiff alleges that defendant, in effect Mr. Underwood, failed to timely vacate and deliver possession of the property and continues to possess and occupy the property. (See Compl. ¶¶ 9, 11.) Through this action, plaintiff seeks:
(1) immediate delivery of the premises, and (2) costs of suit. (Id. at 3.)
Mark Underwood claims to have demurred to the Complaint in the Superior Court, although none of the demurrer-related documents are file-stamped or dated. (See Notice of Removal ¶¶ 1, 8; see also id., Ex. B.) Mr. Underwood's 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; accord id. ¶ 1; see also Notice of Demurrer & Demurrer at 3.) The Notice of Removal alleges that the Superior Court overruled the demurrer. (Notice of Removal ¶ 9.) Mr. Underwood appears to have ultimately filed an answer to the Complaint, although the copy of the answer attached to the Notice of Removal is not dated or file-stamped.
On June 14, 2012, Mark Underwood removed this unlawful detainer action to federal court 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 ¶¶ 6, 10.) He asserts that "[f]ederal question jurisdiction exists because Defendants' [sic] demurrer, a pleading depend [sic] on the determination of Defendants' [sic] rights and Plaintiff's duties under federal law." (Id. ¶ 10.) The implication of Mr. Underwood's statement appears to be that he believes this case was removable on the basis of a defense to the unlawful detainer action premised on the adequacy of the notice to quit under the Protecting Tenants at Foreclosure Act of 2009.
On June 25, 2012, plaintiff filed a motion to remand, and on June 27, 2012, filed a re-noticed motion that is before the court. Plaintiff argues that this court lacks subject matter jurisdiction over its single unlawful detainer claim and that Mark Underwood's removal was untimely.*fn6
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 ...