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Title Hsbc Bank Usa, National Association As Trustee For Wells Fargo v. Kirk Kubik et al.

April 16, 2013

TITLE HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2007-PA2
v.
KIRK KUBIK ET AL.



The opinion of the court was delivered by: Honorable Stephen V. Wilson, U.S. District Judge

CIVIL MINUTES - GENERAL

Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE

Paul M. Cruz N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A Proceedings: IN CHAMBERS ORDER Re NOTICE OF MOTION AND MOTION to REMAND [6]

Upon review of the parties' briefs, the Court concludes that the Motion is suitable for determination without oral argument. Fed. R. Civ. P. 78(b); Local Rule 7-15. The hearing scheduled for Monday, May 20, 2013, is VACATED.

I.INTRODUCTION AND FACTUAL BACKGROUND

On June 1, 2012, Plaintiff HSBC Bank USA ("Plaintiff"), filed the instant unlawful detainer action in Los Angeles Superior Court against Defendants Kirk Kubik, Maribel Duarte, and Does 1 to 6, inclusive (collectively "Defendants"). (Defendants Req. for Notice of Removal ("NR"), Ex. 1 ("Compl.")). The real property which is the subject of this action is 3522 Pine Avenue, Long Beach, CA 90807, (hereinafter "the Property"). (Compl. at 1). The amount of damages claimed does not exceed $10,000. (Id.)

Defendant Kubik filed a Notice of Removal on March 11, 2013. (NR). Defendant Kubik claims removal is proper based on 28 U.S.C. § 1443. (Id at 1-2). The essence of Defendant Kubik's § 1443 argument is that certain unlawful detainer statutes, combined with biased California Superior Court judges and lawmakers, denies Defendant Kubik the opportunity to raise his civil rights in the California courts. (See generally id.).

On April 11, 2013, Plaintiff filed a Notice of Motion and Motion to Remand this case to the Los Angeles Superior Court for lack of subject matter jurisdiction. (Plaintiff's Notice of Motion and Motion to Remand ("MR," Dkt. 6)). Specifically, Plaintiff asserts that this case lacks federal question or diversity jurisdiction. (Id. at 1-2).

II.DISCUSSION

Where a case has been removed, the federal court may remand for lack of subject matter jurisdiction at any time before final judgment. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded"). The court may -- indeed must -- remand an action sua sponte if it determines that it lacks subject matter jurisdiction. See Kelton Arms Condominium Owners Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). A "strong presumption" against removal jurisdiction exists. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). In seeking removal, the defendant bears the burden of proving that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).

A. Federal Question Jurisdiction

Under 28 U.S.C. § 1331, this Court has original jurisdiction over civil actions "arising under" federal law. Removal based on § 1331 is governed by the "well-pleaded complaint" rule. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the rule, "federal jurisdiction exists only when a federal question is presented on the face of plaintiff's properly pleaded complaint." Id. at 392. If the complaint does not specify whether a claim is based on federal or state law, it is a claim "arising under" federal law only if it is "clear" that it raises a federal question. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Thus, a plaintiff is generally the "master of the claim." Caterpillar, 482 U.S. at 392. "A case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Id. at 393 (emphasis in original). The only exception to this rule is where a plaintiff's federal claim has been disguised by "artful pleading." Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1372 (9th Cir. 1987).

Here, Defendant Kubik has failed to establish federal question jurisdiction. Plaintiff's Complaint states a single claim for unlawful detainer, which "does not arise under federal law but is purely a creature of California law." See Canterbury Lots 68, LLC v. De La Torre, CV 13-00712 MMM RZX, 2013 WL 781974, at *3 (C.D. Cal. Feb. 28, 2013) (quoting Wells Fargo Bank v. Lapeen, No. 11--01932, 2011 WL 2194117, at *3 (N.D. Cal. June 6, 2011)). Therefore, because ...


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