United States District Court, C.D. California
2151 MICHELSON, L.P. V. CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE
CIVIL MINUTES - GENERAL
(IN CHAMBERS): ORDER DENYING PLAINTIFF'S MOTION TO REMAND
; GRANTING DEFENDANT'S MOTION TO DISMISS AND COMPEL
the Court are Plaintiff 2151 Michelson, L.P.'s
(“Plaintiff” or “Michelson”) Motion
to Remand Action to the Superior Court of California, County
of Orange (“MTR”) (Dkt. 16), and Defendant
Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter Day Saints' (“Defendant” or
“CPB”) Motion to Dismiss and Compel Arbitration
(“MTD”) (Dkt. 11). The Court finds these matters
appropriate for resolution without oral argument.
See Fed. R. Civ. P. 78; L.R. 7-15. Having considered
the parties' arguments, the Court DENIES Plaintiff's
Motion and GRANTS Defendant's Motion to Dismiss and
Court adopts the facts as set out in Plaintiff's
Complaint. Declaration of Christopher S. Hill (“Hill
Decl.”) (Dkt. 2) Ex. A (“Compl.”).
1977, Plaintiff and Defendant entered into a fifty-five-year
lease. Hill Decl. Ex. A (“Lease”); Compl. ¶
7. The property is located in Irvine, California, and
Defendant is the current lessor. Compl. ¶ 6.
Lease provides that as lessee, Plaintiff will pay $88, 165.00
per annum in rent to Defendant. Id. ¶ 8. The
Lease also states that at the end of the twenty-fifth year
and the fortieth year of the Lease, the annual rental
“shall be adjusted to that sum which the Lessor could
derive from said property if it were made available on the
open market for new leasing purposes . . . .”
to the Lease, if the parties fail to agree upon the adjusted
annual rent at the end of the twenty-fifth or fortieth years,
the amount of rent will be determined by arbitration.
Id. ¶ 9. In the event of such a disagreement,
the lessor will appoint an arbitrator and give notice to the
lessee, who will then also appoint an arbitrator and provide
notice to the lessor. Id. The two arbitrators will
appoint a third arbitrator. Lease at 20. If either party
fails to appoint an arbitrator or give notice under the terms
of the Lease, the other party “shall have the right to
apply to the Superior Court of Orange County, California, to
appoint an arbitrator to represent the defaulting
party.” Compl. ¶ 9.
2002, at the end of the twenty-fifth year of the Lease,
Defendant failed to provide notice as required by the Lease.
Id. ¶ 10. Accordingly, Plaintiff filed a
declaratory relief action in the Orange County Superior
Court. Id. Defendant filed a cross-complaint, and
the court found for Plaintiff. Id. ¶¶
11-12. Defendant appealed the judgment, id. ¶
13, and the California Court of Appeal reversed and remanded.
MTR at 4. After another bench trial in Orange County
Superior Court, the court again entered judgment in favor of
2017, at the end of the fortieth year of the Lease, Defendant
again failed to provide notice by the deadline provided by
the Lease. Id. at 5.
March 29, 2017, Plaintiff filed the instant complaint in the
Superior Court of Orange County. See Compl. at 1.
Plaintiff seeks declaratory relief for the following four
disputes: (1) the determination of the appropriate rental
rate for the property; (2) the appropriate methodology to use
in determining that rate; (3) whether the Court is precluded
from reaching the merits of (1) and (2) in light of previous
California state court decisions between the parties; and (4)
whether Defendant waived its right to compel arbitration.
Compl. ¶ 22.
2, 2017, Defendant removed this case to federal court. Notice
of Removal from Superior Court of Orange County
(“Notice”) (Dkt. 1).
9, 2017, Defendant filed the instant motion to dismiss.
Plaintiff opposed on May 22, 2017 (“MTD
Opp'n”) (Dkt. 17), and Defendant replied on May 26,
2017 (“MTD Reply”) (Dkt. 18).
filed the instant motion to remand on May 19, 2017. Defendant
opposed on May 26, 2017 (“MTR Opp'n”) (Dkt.
19), and Plaintiff replied on June 5, 2017 (“MTR
Reply”) (Dkt. 21).
Motion to Remand
at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c). Removal
of a case from state court to federal court is governed by 28
U.S.C. § 1441, which provides in pertinent part that
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed . . . to the district court of
the United States for the district and division embracing the
place where such action is pending.” The removing
defendant must file a notice of removal in the appropriate
United States District Court, together with all process,
pleadings, and orders served upon the defendant. 28 U.S.C.
§ 1446(a). Notice of removal must be filed within thirty
days of receiving a copy of the original complaint, or
“within 30 days after the service of summons upon the
defendant, if such initial pleading has then been filed in
court and is not required to be served on the defendant,
whichever period is shorter.” 28 U.S.C. § 1446(b).
Remand may be ordered for lack of subject matter jurisdiction
or any defect in the removal procedure. 28 U.S.C. §
amendments to the pleadings cannot affect whether a case is
removable, because the propriety of removal is determined
solely on the basis of the pleadings filed in state
court.” Williams v. Costco Wholesale Corp.,
471 F.3d 975, 976 (9th Cir. 2006); see also Sparta
Surgical Corp. v. Nat'l Ass'n of Sec. Dealers,
Inc., 159 F.3d 1209, 1213 (9th Cir. 1998) (“[A]
plaintiff may not compel remand by amending a complaint to
eliminate the federal question upon which removal was
based.”). Therefore, “a party that has properly
removed a case need not amend its removal notice or file a
new notice after an amended complaint changes the ground for
federal jurisdiction.” Id. Once a defendant
has properly removed a case, “the district court has
jurisdiction over it on all grounds apparent from the
complaint, not just those cited in the removal notice.”
protect the jurisdiction of state courts, removal
jurisdiction should be strictly construed in favor of remand.
Harris v. Bankers Life and Cas. Co., 425 F.3d 689,
698 (9th Cir. 2005) (citing Shamrock Oil & Gas Corp.
v. Sheet, 313 U.S. 100, 108-09 (1941)). If there is any
doubt as to the right of removal in the first instance,
remand must be ordered. See Ethridge v. Harbor House
Rest., 861 F.2d 1389, 1393 (9th Cir. 1988).
Motion to Dismiss and Compel Arbitration
framed as a motion to dismiss, Defendant's Motion seeks
an order compelling arbitration. Thus, the Court will apply
the legal standard ...