United States District Court, S.D. California
U.S. BANK NATIONAL ASSOCIATION, As Trustee for Harborview Mortgage Loan Trust 2005-8, Mortgage Loan Pass-Through Certificates, Series 2005-8, its assignees and/or successors Plaintiff,
v.
SALEM SOMO and Does 1-10 Inclusive Defendants.
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 ...