United States District Court, N.D. California
REPORT AND RECOMMENDATION REGARDING MOTION TO REMAND Re: Dkt. No. 5
JOSEPH C. SPERO, Magistrate Judge.
This is an unlawful detainer case that Defendant Cecil Gonzales removed from state court on September 18, 2014. Plaintiff John Daly Boulevard Associates, L.P. moved on October 6, 2014 to remand the case for lack of federal subject matter jurisdiction. A hearing was held on October 17, 2014. For the reasons stated below, the undersigned recommends that Plaintiff's Motion be GRANTED, and the case REMANDED to the Superior Court of California, County of San Mateo. The undersigned recommends that Plaintiff's request for attorneys' fees be DENIED.
Defendant, proceeding pro se and in forma pauperis, removed this action from the Superior Court of California, County of San Mateo to this Court on September 18, 2014. Defendant's Notice of Removal (Dkt. 1) includes the first page-but not complete copies-of each of the following documents from the state court proceeding: a summons for unlawful detainer, Plaintiff's complaint, Defendant's notice of demurrer, and Defendant's answer. The Notice of Removal states that "Federal question [jurisdiction] exists because Defendant's Demurrer, a pleading depend [sic] on the determination of Defendant's rights and Plaintiff's duties under federal law." Notice of Removal at 3.
Plaintiff filed a Motion to Remand (Dkt. 5) on October 6, 2014, as well as a declaration that attached several exhibits including Plaintiff's complaint, Defendant's demurrer, and the state court's order overruling the demurrer. Choutka Decl. (Dkt. 5-1) Exs. C-E. The complaint is for unlawful detainer, and the demurrer was brought under California Code of Civil Procedure section 1170, alleging that Plaintiff's Notice to Pay or Quit "fail[ed] to include the information required by Code of Civil Procedure § 1161(2)." See id. Exs. C, D. Plaintiff argues that the case should be remanded for lack of federal subject matter jurisdiction, because there is no diversity of citizenship and the complaint presents no federal question. Plaintiff also argues that it is entitled to attorneys' fees under 28 U.S.C. § 1447(c).
Concurrently with its Motion, Plaintiff filed an ex parte request to shorten the briefing and hearing schedule for the Motion, arguing that there was no basis for removal and any delay in remanding the case harms Plaintiff by preventing it from recovering its property. Dkt. 6. The Court granted this request, set a hearing for October 17, 2014, and set a deadline of October 15, 2014 for Defendant to file an opposition to the Motion. Dkt. 10. Defendant did not file an opposition.
Defendant failed to appear at the October 17 hearing, but Plaintiff's counsel indicated that Defendant had filed for bankruptcy, thus prompting an automatic stay of these proceedings pursuant to 11 U.S.C. § 362. Plaintiff filed a declaration on October 20, 2014 confirming that Defendant filed for bankruptcy. Dkt. 13. On November 14, 2014, Plaintiff filed with this Court an order by the Bankruptcy Court terminating the stay as to this litigation. Dkt. 16.
A. Motion to Remand
A defendant may remove a civil action filed in state court if the action could have been filed originally in federal court. 28 U.S.C. § 1441. A plaintiff may move to remand the case to the state court from which it was removed if the district court lacks jurisdiction or if there is a defect in the removal procedure. 28 U.S.C. § 1447(c). The removal statutes are construed restrictively so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). The Ninth Circuit recognizes a "strong presumption against removal." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal quotations omitted). Any doubts as to removability should be resolved in favor of remand. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). The defendant bears the burden of showing that removal is proper. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).
Here, Defendant's Notice of Removal invokes federal question jurisdiction. Notice of Removal ¶ 10 (citing 28 U.S.C. § 1331). Federal question jurisdiction under § 1331 encompasses civil actions that arise under the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331. "A case arises under' federal law either where federal law creates the cause of action or where the vindication of a right under state law necessarily turns on some construction of federal law.'" Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (citations omitted). "The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). A federal question must arise from the complaint-it is "settled law that a case may not be removed to federal court on the basis of a federal defense." Caterpillar, 482 U.S. at 393.
Defendant has not met her burden to show that removal is proper. Plaintiff's complaint does not include any claims under federal law or otherwise raise any federal question. See Choutka Decl. Ex. C; see also, e.g., Litton Loan Servicing, L.P. v. Villegas, C 10-05478 PJH, 2011 WL 204322, at *2 (N.D. Cal. Jan. 21, 2011) (unlawful detainer is a state law claim). Even if, as Defendant claims, "Defendant's Demurrer, a pleading depend[ed] on the determination of Defendant's rights and Plaintiff's duties under federal law, " Notice of Removal ¶ 10, that would not be sufficient to create federal question jurisdiction under the well-pleaded complaint rule, because what Defendant describes is only a federal defense. See Caterpillar, 482 U.S. at 393. Further, even if a federal defense could provide a basis for jurisdiction, the demurrer raised no such defense. It invoked and depended only on state law, specifically the California Code of Civil Procedure. See generally Choutka Decl. Ex. D. Neither the complaint nor the demurrer relates in any way to federal law. See Mot. Exs. C, D.
Because Defendant has not demonstrated federal subject matter jurisdiction, the undersigned recommends that the ...