The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER GRANTING MOTION TO REMAND
Jerry Jackson commenced this action in Los Angeles Superior Court on
July 18, 2012 against Yoshinoya America, Inc., Fedora Plaza, LLC, and
certain fictitious defendants.*fn1 On October 4, 2012,
defendants removed the action to this court, invoking the court's
federal question jurisdiction under 28 U.S.C. § 1331.*fn2
Jackson filed a motion to remand for lack of subject
matter jurisdiction on November 2, 2012.*fn3 Defendants
oppose the motion,*fn4 asserting that removal was
proper.*fn5 Pursuant to Rule 78 of the Federal Rules
of Civil Procedure and Local Rule 7-15, the court finds this matter
appropriate for decision without oral argument. The hearing calendared
for March 11, 2013, is hereby vacated, and the matter is taken off
Jackson is disabled and confined to a wheelchair.*fn6 In the year prior to commencement of this action, he tried to access defendants' premises on at least two occasions, but encountered purportedly unlawful access barriers.*fn7 Before filing suit, Jackson allegedly obtained a written report from an ADA access consultant verifying that defendants' premises violated the Americans with Disabilities Act and California Title 24 access regulations.*fn8 Based on these facts, Jackson alleges that he was denied the equal use and enjoyment of the premises.
Jackson pleads claims for violation of civil rights under Title 24 of the California Building Code and California Civil Code §§ 54, 54.1, and the Unruh Civil Rights Act, California Civil Code § 51(b). He also pleads a claim for injunctive relief under California Code of Civil Procedure §§ 54, 54.1 and California Health and Safety Code § 19955.
Defendants assert that the court has jurisdiction to hear the action under 28 U.S.C. § 1331 because the case arises under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) ("ADA"). As a consequence, they contend, removal was proper under 28 U.S.C. § 1441(a).*fn9
Defendants argue that Jackson "does not disavow an intent to seek injunctive relief beyond that which is required by state law," and that accordingly, the complaint should be read as seeking injunctive relief under the ADA.*fn10 They further asserts that Jackson's pleading was written in a "deliberately ambiguous manner" to avoid federal jurisdiction.*fn11
A. Legal Standards Governing Removal Jurisdiction
The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); see also 28 U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in federal court may be removed. 28 U.S.C. § 1441(a); see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988).
The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988), and Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. (citing Libhart, 592 F.2d at 1064). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990), and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)).
B. Whether this Case Was Properly Removed under 28 U.S.C. § 1331 Removal is improper if a federal issue raised in a plaintiff's complaint is merely collateral to a state law claim. 4A Charles A. Wright, Arthur R. Miller et al., FEDERAL PRACTICE AND PROCEDURE, § 3722 (4th ed. 2012). While federal question jurisdiction may be present is the vindication of a state law right "necessarily turn[s] on some construction of federal law," Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 (1986) (quoting Franchise Tax Board
v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983) (internal quotation marks omitted)), the federal question must be a necessary element of the state law claim before federal jurisdiction exists. id. at 812 (quoting Franchise Tax Board, 463 U.S. at 13 ("some substantial, disputed question of federal law [must be] a necessary element of one of the well-pleaded state claims").
Thus, a "court has federal question jurisdiction over a claim if: 1) federal law creates the cause of action; 2) under the artful pleading doctrine, the plaintiff's state law claims should be recharacterized as federal claims; or 3) one or more of the state law claims necessarily turns on the construction of a substantial, disputed federal question." Rains v. Criterion Systems, Inc., 80 F.3d 339, 343 (9th Cir. 1996). Courts have consistently held that the fact that state law incorporates the ADA as an element of a state law cause of action does not confer federal jurisdiction to hear the state claims. see, e.g., Wander v. Kaus, 204 F.3d 856, 859 (9th Cir. 2002) ("Federal-question jurisdiction over a state-law claim is not created just because a violation of federal law is an element of the state law claim"); Pickern v. Best Western Tiber Cove Lodge Marina Resort, 194 F.Supp.2d 1128, 1131 (E.D. Cal. 2002) ("The fact that an ADA violation may serve as an element of a state law ...