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The Bank of New York Mellon v. Roger D. Wells

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 4, 2012

THE BANK OF NEW YORK MELLON
v.
ROGER D. WELLS, ET AL.

The opinion of the court was delivered by: The Honorable S. James Otero, United States District Judge

Priority Send Enter Closed JS-5/JS-6 Scan Only

CIVIL MINUTES - GENERAL

PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

Victor Paul Cruz

Courtroom Clerk

COUNSEL PRESENT FOR PLAINTIFF:

Not Present

Not Present

Court Reporter

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

PROCEEDINGS (in chambers): ORDER GRANTING PLAINTIFF'S MOTION TO REMAND TO LOS ANGELES COUNTY SUPERIOR COURT [Docket No. 7]; DISMISSING AS MOOT PLAINTIFF'S EX PARTE APPLICATION TO SHORTEN TIME FOR HEARING [Docket

This matter is before the Court on Plaintiff The Bank of New York Mellon's ("Plaintiff") Motion to Remand Case to Los Angeles County Superior Court ("Motion") and Plaintiff's Ex Parte Application to Shorten Time for Hearing ("Application"), both filed October 2, 2012. The Court this matter appropriate for decision without oral argument and vacated the hearing set for November 5, 2012. See Fed. R. Civ. P. 78(b). For the following reasons, the Court GRANTS Plaintiff's Motion and DISMISSES AS MOOT Plaintiff's Application.

BACKGROUND

December 29, 2011, Plaintiff initiated this unlawful detainer action in Los Angeles County Superior Court. (Notice of Removal ("Notice") ¶ 1, ECF No. 1.) Plaintiff alleges that Defendants

D. Wells and Kume Y. Wells (collectively, "Defendants") are unlawfully in possession of the property located at 168 New Bedford Ave., Claremont, CA 91711 (the "Premises") after being duly on December 17, 2011 with a 3-Day Written Notice to Vacate made in compliance with Section 1161(a) of the California Code of Civil Procedure. (Notice Ex. A, at 3 ("Compl.") ¶ 6, Ex. at 10.) Proceeding pro se, Defendants filed a demurrer to the Complaint in Los Angeles County Superior Court, alleging that the Complaint was based on a defective Notice to Occupants

Vacate Premises, in violation of The Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220. (Notice ¶¶ 1, 8.) The Los Angeles County Superior Court did not sustain Defendants' demurrer. (Notice ¶ 9.) On September 7, 2012, Defendants removed this action to the Central District of California pursuant to 28 U.S.C. §§ 1331 and 1441. (Notice ¶ 10.) To support removal, Defendants allege that federal question jurisdiction exists because Defendants' demurrer raises issue of federal law under 12 U.S.C. § 5220.

October 2, 2012, Plaintiff filed a Motion to Remand, arguing that removal is improper because is no federal question at issue since the underlying claim is for unlawful detainer, based only California code of Civil Procedure sections 1161(a) and 1174(b). (Mot. 3.) *fn1

DISCUSSION

the removal statute, an action is removable to federal court only if it might have been brought there originally. See 28 U.S.C. § 1441(a). The Ninth Circuit has held that courts must "strictly construe the removal statute against removal jurisdiction" and reject federal jurisdiction there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 566 (9th Cir. 1992). "The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (internal quotation omitted). To support removal under § 1331, Defendants must demonstrate that federal question jurisdiction is proper.

A. Federal Question Jurisdiction

Federal question jurisdiction exists when a plaintiff asserts a claim or right "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A case "arises under" federal law if a plaintiff's "well-pleaded complaint establishes either that federal law creates the of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 690 (2006) (internal quotation marks omitted). Pursuant to the well-pleaded complaint rule, a defendant may not remove a case to federal court on the basis of a federal counterclaim or a federal defense to a state law claim. See Vaden v. Discover Bank, 556 U.S. 49, 60 (2009); Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987); Botsford v. Blue Cross & Blue Shield of Mont., Inc., 314 F.3d 390, 393 (9th Cir. 2002). Because the well-pleaded complaint rule makes plaintiff the "master of the claim," the plaintiff may avoid federal jurisdiction by pleading exclusively state law claims. Williams, 482 U.S. at 392; Balcorta v. Twentieth Century-Fox Film

, 208 F.3d 1102, 1106 (9th Cir. 2000).

it is clear that federal question is improper. The Complaint asserts only one cause of action unlawful detainer arising out of California Code of Civil Procedure section 1161(a). (Compl.) Although Defendants argue that their demurrer raises a federal question as to whether Plaintiff complied with the Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220 (Notice. ¶ 10), this argument is set forth as a defense to Plaintiff's state law claim and therefore, pursuant to the well-pleaded complaint rule, is insufficient to move the case from state to federal court. See Vaden, U.S. at 60. Because Plaintiff's cause of action arises under the laws of the state of California not the United States, Defendants cannot establish federal question jurisdiction.

CONCLUSION

Because the Court lacks subject matter jurisdiction over this action, the Court GRANTS Plaintiff's to Remandthis case to the Superior Court of California, County of Los Angeles and DISMISSES AS MOOT Plaintiff's Ex Parte Application to Shorten Time for Hearing. This action shall close.

IS SO ORDERED.


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