U.S Bank National Association v. Somo

          ORDER: GRANTING PLAINTIFF'S MOTION TO REMAND TO STATE SUPERIOR COURT

          Hon. Gonzalo P. Curiel United States District Judge.

         On July 23, 2019, U.S. Bank National Association (“Plaintiff”) filed a motion to remand its unlawful detainer action against Salem Somo (“Defendant”) to California Superior Court. ECF No. 6. Defendant previously filed a Notice of Removal on June 26, 2019. ECF No. 1. The Court has identified that the Defendant's Notice of Removal and underlying Complaint are substantively identical to Defendant's filings in U.S. Bank National Ass'n v. Somo et al, 3:19-cv-00658-GPC-RBB. In that case, the Court passed upon the moving papers and granted Plaintiff's Motion to Remand on June 10, 2019 on the basis subject matter jurisdiction was absent. ECF No. 8. Having viewed the motion to remand in this case and the underlying Notice of Removal, the Court GRANTS the motion and REMANDS the action to the California Superior Court for lack of subject matter jurisdiction. The Defendant is also placed on notice that he may not again remove the Unlawful Detainer action to Federal District Court as doing so is an improper means of delaying the unlawful detainer trial and a sanctionable abuse of legal resources.

         Factual and Procedural Background

          The Plaintiff is the current owner of 13952 Olive Vista Dr., Jamul, CA 91935 after purchasing the property through a non-judicial foreclosure. (Dkt. No. 6-2 at 2.)^[1] On October 2, 2018, in an earlier case before this Court, the Plaintiff served a notice for possession of the property to the Defendant in accordance with California Civil Procedure Code § 1161a(b)(3). (Dkt. No. 1 at 7, U.S. Bank National Ass'n v. Somo et al, 3:19-cv-00658-GPC-RBB.) On October 27 and 29, 2018, the Defendant served the Plaintiff with an unlawful detainer complaint for failing to vacate the property. (Dkt. No. 6-2 at 2, U.S. Bank National Ass'n v. Somo et al, 3:19-cv-00658-GPC-RBB.) On March 13, 2019, the state court ruled on the Defendant's demurrer action, and on March 15, 2019, the Defendant filed an answer to the complaint. (Dkt. No. 1 at 5-8, 21, U.S. Bank National Ass'n v. Somo et al, 3:19-cv-00658-GPC-RBB.)

         On April 9, 2019, the Defendant filed a notice of removal with this Court, and on April 11, 2019, he demonstrated proof of removal during the state court trial, thus resulting in the trial being vacated. (Id. at 1; Dkt. No. 6-2 at 2, U.S. Bank National Ass'n v. Somo et al, 3:19-cv-00658-GPC-RBB.) On April 17, 2019, the Plaintiff filed a motion to remand back to California Superior Court. (Dkt. No. 6, 1, U.S. Bank National Ass'n v. Somo et al, 3:19-cv-00658-GPC-RBB.) After reviewing the moving papers, the Court granted the Plaintiff's motion to remand in that case on June 10, 2019.

         In this present case, Defendant has removed an identical complaint to this court. ECF No. 1. Defendant has provided no additional materials or facts to support for this Court to reconsider its prior ruling.

         Discussion

         I. Federal Question Jurisdiction

         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. It is well-established that a federal court cannot reach the merits of any dispute until it confirms that it retains subject matter jurisdiction to adjudicate the issues presented. Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 94-95 (1988). The Defendant contends that removal is proper under 28 U.S.C. §§ 1331 and 1441(a). (Dkt. No. 1 at 2.)

         Federal subject matter jurisdiction may be based on (1) federal question jurisdiction under 28 U.S.C. § 1331; and (2) diversity jurisdiction under 28 U.S.C. § 1332. The Defendant has not claimed diversity jurisdiction in this case. For an action to be removed based on federal question jurisdiction, the complaint must establish either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on the resolution of substantial questions of federal law. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10-11 (1983). 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 plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). It is well settled that a “case may not be removed to federal court on the basis of a federal defense . . . 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. “The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

         While a plaintiff may choose to file suit in state court and avoid a federal question, a plaintiff may not use “artful pleading” to avoid federal jurisdiction by excluding necessary federal questions in the complaint. Franchise Tax Bd., 463 U.S. at 22 (citations omitted). The artful pleading doctrine states, a state-created cause of action can be deemed to arise under federal law (1) where federal law completely preempts state law[]; (2) where the claim is necessarily federal in character[]; or (3) where the right to relief depends on the resolution of a substantial, disputed federal question [].” ARCO Envtl. Remediation, LLC v. Dep't of Health and Envtl. Quality of Montana, 213 F.3d 1108, 1114 (9th Cir. 2000).

         A review of the state court complaint in this case shows that the Plaintiff alleges a single cause of action for unlawful detainer under California Civil Procedure 1161(a). (Dkt. No. 1 at 5-8.) In the notice of removal, Defendant argues that a federal statute, Protecting Tenants at Foreclosure (“PTFA”)^[2], provides the Court with federal question jurisdiction for two reasons: (1) the unlawful detainer action actually asserts a cause of action under the PTFA, and (2) the PTFA 90-day notice requirement preempts California state law on notice, and thus is a required element of an unlawful detainer action. (Dkt. No. 1 at 3.)

         Most relevantly, “the PTFA expired on December 31, 2014.” Fairview Tasman LLC v. Young, Case No. 15cv5493-LHK, 2016 WL 199060, at *2 (N.D. Cal. Jan. 18, 2016) (citing Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376, 2204 (2010) (setting date of expiration)); see also Franks v. Franks, Case No. 17cv893-CAB-AGS, 2017 WL 1735169, at *2 (S.D. Cal. May 4, 2017). Here, on October 27 and 29, 2018, the Plaintiff served the unlawful detainer action and there is no indication that any of the facts constituting the unlawful detainer action occurred prior to December 31, 2014. (Dkt. No. 6-2 at 2.) Even if the PTFA applied, without further evidence in the record, the Defendant's argument are meritless.

         In addition, The PTFA does not create a cause of action for a tenant. Logan v. U.S. Ass'n, 722 F.3d 1163, 1169 (9th Cir. 2013). In Logan v. U.S. Bank Nat'l Ass'n, the court analyzed the Congressional record to determine that Congress showed no implicit or explicit intent to create a cause of action under the PTFA. Id; see also Nativi v. Deutsche Bank Nat'l Trust Co., No. 09-06096 PVT, 2010 WL 2179885 (N.D. Cal. May 26, 2010). District courts have cited Logan to support holdings that the PTFA does not create a cause of action for landlords. Fairview Tasman, LLC v. Young, Case No. 15cv5493-LHK, 2016 WL 199060, at *2 (N.D. Cal. Jan. 18, 2016) (holding that the Logan reasoning also applies to an implied right of action for landlords); San Diego Pacificvu, LLC v. Wade, No. 15-CV-00181-BAS RBB, 2015 WL 588561, at *3 (S.D. Cal. Feb. 11, 2015). In Logan, the court held that the PTFA neither explicitly nor implicitly creates a cause of action, but instead explained that the PTFA is a defense in California ...