United States District Court, E.D. California
ORDER SUA SPONTE REMANDING MATTER TO THE KERN COUNTY
removed this case from the Superior Court of Kern County on
July 13, 2017. See Court's Docket Doc. No. 1.
Defendants assert that the basis for removal is the presence
of a federal question. Specifically, Defendants contend that
they filed an answer to Plaintiff's unlawful detainer
complaint that alleged Plaintiff failed to follow the strict
notice requirements of California Code of Civil Procedure
district court has “a duty to establish subject matter
jurisdiction over the removed action sua sponte,
whether the parties raised the issue or not.”
United Investors Life Ins. Co. v. Waddell & Reed,
Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal
statute (28 U.S.C. § 1441) is strictly construed against
removal jurisdiction. Geographic Expeditions, Inc. v.
Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010);
Provincial Gov't of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). It is
presumed that a case lies outside the limited jurisdiction of
the federal courts, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.
Geographic Expeditions, 599 F.3d at 1106-07;
Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
(9th Cir. 2009). “The strong presumption against
removal jurisdiction” means that “the court
resolves all ambiguity in favor of remand to state
court.” Hunter, 582 F.3d at 1042; Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is,
federal jurisdiction over a removed case “must be
rejected if there is any doubt as to the right of removal in
the first instance.” Geographic Expeditions,
599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d 1480,
1485 (9th Cir. 1996); Gaus, 980 F.2d at 566.
“If at any time prior to judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c);
Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th
Cir. 2001). Remand under 28 U.S.C. § 1447(c) “is
mandatory, not discretionary.” Bruns v. NCUA,
122 F.3d 1251, 1257 (9th Cir. 1997); see California ex.
rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th
Cir. 2004). That is, the court “must dismiss a case
when it determines that it lacks subject matter jurisdiction,
whether or not a party has filed a motion.” Page v.
City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995).
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.”
California v. United States, 215 F.3d 1005, 1014
(9th Cir. 2000); see Dynegy, 375 F.3d at 838;
Duncan, 76 F.3d at 1485. Under the
“well-pleaded complaint” rule, courts look to
what “necessarily appears in the plaintiff's
statement of his own claim in the bill or declaration,
unaided by anything in anticipation of avoidance of defenses
which it is thought the defendant may interpose.”
California, 215 F.3d at 1014. “It does not
suffice to show that a federal question lurks somewhere
inside the parties' controversy, or that a defense or
counterclaim would arise under federal law.” Vaden
v. Discover Bank, 129 S.Ct. 1262, 1278 (2009).
Defendants have not shown that removal was appropriate. The
complaint filed by Plaintiff is an unlawful detainer action
that is based entirely on state law. As mentioned above,
Defendants rely on their answer to establish federal
jurisdiction. However, the answer merely alleges defective
notice under state law; there is no federal law
invoked in the answer whatsoever. California Code of Civil
Procedure § 1161 cannot form the basis for federal
question jurisdiction. See 28 U.S.C. § 1331;
Sierra Equity Acquisitions, LLC v. Doleire, 2016
U.S. Dist. LEXIS 152829, *3-*4 (S.D. Cal. Oct. 28, 2016);
Pacific Zinfandel Apts. v. Rowan, 2016 U.S. Dist.
LEXIS 32743, *2-*3 (E.D. Cal. Mar. 14, 2016); Muzi v.
Muniz, 2015 U.S. Dist. LEXIS 70058, *2-*3 (N.D. Cal. May
29, 2015); Nationstar Mortg., LLC v. Ilori, 2014
U.S. Dist. LEXIS 5412, *6-*8 (CD. Cal. Jan. 14, 2014).
Moreover, even if a federal defense was actually pled in
Defendants' answer, the invocation of a federal defense
cannot form the basis of this Court's jurisdiction.
See Vaden, 129 S.Ct. at 1278; California,
215 F.3d at 1014. Because there is no federal question
appearing in Plaintiffs complaint, Defendants have failed to
invoke this Court's jurisdiction. Remand to the Kern
County Superior Court is appropriate and mandatory. 28 U.S.C.
§ 1447(c); Geographic Expeditions, 599 F.3d at
1107; Bruns, 122 F.3d at 1257; Page, 45
F.3d at 133.
IT IS HEREBY ORDERED that:
1. In accordance with 28 U.S.C. § 1447(c), due to this
Court's lack of subject matter jurisdiction, this case is
REMANDED forthwith to the Superior Court of Kern County; and
2. Defendants' motions to proceed in forma pauperis are
DENIED as moot (Doc. Nos. 3, 4)
 To the extent that Defendants may have
been attempting to invoke portions of 12 U.S.C. § 5201
et seq. (the Protecting Tenants Against Foreclosure
Act), the defensive invocation of § 5201 does not
establish federal jurisdiction. Deutsche Bank Nat'l
Trust Co. v. Eaddy, 2012 U.S. Dist. LEXIS 133415, *3-*4
(N.D. Cal. Sept. 18, 2012); Oates Revocable Trust ...