United States District Court, C.D. California
KIYA KATO United States Magistrate Judge
ORDER REMANDING CASE TO STATE COURT
HONORABLE JESUS G. BERNAL UNITED STATES DISTRICT JUDGE
Anthony Kandare (“Respondent”) has removed this
action, which was originally filed by Petitioner Joanne
Gillies (“Petitioner”) in the California Superior
Court for the County of Riverside, to this Court on the basis
of diversity jurisdiction. ECF Docket No.
(“Dkt.”) 1. The underlying state court action
seeks an Elder or Dependent Adult Abuse Restraining Order
protecting Valerie Kandare (“Protected Person”),
who is Petitioner and Respondent's mother, from alleged
financial abuse by Respondent. Id.
Court sua sponte REMANDS this action to the
California Superior Court for the County of Riverside for
lack of subject matter jurisdiction, as set forth below.
right of removal is entirely a creature of statute and
‘a suit commenced in a state court must remain there
until cause is shown for its transfer under some act of
Congress.'” Syngenta Crop Prot., Inc. v.
Henson, 537 U.S. 28, 32 (2002) (quoting Great N. Ry.
Co. v. Alexander, 246 U.S. 276, 280 (1918)). Generally,
where Congress has acted to create a right of removal, those
statutes are strictly construed against removal jurisdiction.
Id.; Nevada v. Bank of Am. Corp., 672 F.3d
661, 667 (9th Cir. 2012); Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992).
otherwise expressly provided by Congress, a defendant may
remove “any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a); Dennis v.
Hart, 724 F.3d 1249, 1252 (9th Cir. 2013). The removing
defendant bears the burden of establishing federal
jurisdiction. Abrego Abrego v. Dow Chem. Co., 443
F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at
566-67. “Under the plain terms of § 1441(a), in
order properly to remove [an] action pursuant to that
provision, [the removing defendant] must demonstrate that
original subject-matter jurisdiction lies in the federal
courts.” Syngenta Crop Prot., 537 U.S. at 33.
Failure to do so requires that the case be remanded, as
“[s]ubject matter jurisdiction may not be waived, and .
. . the district court must remand if it lacks
jurisdiction.” Kelton Arms Condo. Owners Ass'n
v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir.
2003). “If 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).
It is “elementary that the subject matter jurisdiction
of the district court is not a waivable matter and may be
raised at anytime by one of the parties, by motion or in the
responsive pleadings, or sua sponte by the trial or
reviewing court.” Emrich v. Touche Ross &
Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988).
actions seeking declaratory or injunctive relief, it is well
established that the amount in controversy is measured by the
value of the object of the litigation.” Hunt v.
Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347,
97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). “The test for
determining the amount in controversy is the pecuniary result
to either party which the judgment would directly
produce.” Corral v. Select Portfolio Servicing,
Inc., 878 F.3d 770, 775 (9th Cir. 2017).
is asserting jurisdiction on the basis of diversity and,
therefore, bears the burden of establishing by a
preponderance of the evidence that the amount in controversy
exceeds $75, 000. See 28 U.S.C. § 1332(a).
argues the amount in controversy is the amount he is alleged
to have improperly taken from the protected person, i.e.,
$380, 950. See Dkt. 1 at 3-4. However, pursuant to
the state court pleadings attached to the Notice of Removal,
Petitioner seeks only the following relief:
(1) Personal Conduct Orders that respondent not do any of the
following to petitioner or the protected person: (a)
physically abuse, financially abuse, intimidate, molest,
attack, strike, stalk, threaten, assault (sexually or
otherwise), hit, harass, destroy the personal property of, or
disturb the peace of the person; and (b) contact the person,
either directly or indirectly, in any way, including, but not
limited to, in person, by telephone, in writing, by public or
private mail, by interoffice mail, by e-mail, by text
message, by fax, or by other electronic means.
(2) Stay-Away Orders that respondent stay at least 100 yards
away from the protected person, petitioner, and the protected