Farmers and Merchants Bank of Long Beach v. Mark Allen et al

Filing 5

MINUTES OF IN CHAMBERS - ORDER REMANDING ACTION TO LOS ANGELES COUNTY SUPERIOR COURT by Judge Dolly M. Gee: Because Defendant Timothy Kapa, presumably one of the previously unknown Doe Defendants, has not established a basis for removal jurisdiction on the face of the Notice of Removal, this action is hereby REMANDED to Los Angeles County Superior Court, Case Number 13U00319. ( Case Terminated. Made JS-6 ) Court Reporter: Not Reported. (Attachments: # 1 CV-103 Remand Transmittal Letter) (gk)

JS-6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. Date CV 13-2131 DMG (VBKx) Title Farmers & Merchants Bank of Long Beach v. Mark Allen, et al. Present: The Honorable March 27, 2013 Page 1 of 2 DOLLY M. GEE, UNITED STATES DISTRICT JUDGE VALENCIA VALLERY Deputy Clerk NOT REPORTED Court Reporter Attorneys Present for Plaintiff(s) None Present Attorneys Present for Defendant(s) None Present Proceedings: IN CHAMBERS—ORDER REMANDING ACTION TO LOS ANGELES COUNTY SUPERIOR COURT On January 29, 2013, Plaintiff Farmers & Merchants Bank of Long Beach filed a Complaint in Los Angeles County Superior Court for unlawful detainer against Defendants Mark Allen, Cynthia Turner, Don Roberts, Tony Ceroli, and Does 1 through 10 [Doc. # 1]. The Complaint alleges that Plaintiff, the former trustee of a Deed of Trust against the property where Defendants reside as tenants (“the subject property”), purchased the subject property on September 19, 2012 at a public auction. (Id. ¶¶ 3-6.) Plaintiff’s title to the subject property was perfected on September 24, 2012. (Id. ¶ 7.) On October 6, 2012, Plaintiff caused to be served on Defendants a written notice to quit the premises within 90 days. (Compl. ¶ 10.) As of the date of the Complaint, Defendants had failed to vacate the subject property. (Id. ¶ 11.) Plaintiff seeks damages, restitution, and possession of the subject property. Defendant Timothy Kapa, presumably one of the previously unknown Doe Defendants, filed a Notice of Removal on March 25, 2013 pursuant to 28 U.S.C. § 1443. [Doc. # 1.] Defendant Kapa argues that the Complaint raises a claim under the “Protecting Tenants at Foreclosure Act of 2009” (“PTFA”), 15 U.S.C. § 5220 [Doc. #1]. The “well-pleaded complaint” rule requires a federal question to be present on the face of the complaint at the time of removal for federal question jurisdiction to exist. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Federal jurisdiction cannot rest upon an actual or anticipated defense or counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60, 129 S. Ct. 1262, 173 L. Ed. 2d 206 (2009). Where federal law completely preempts state law, however, a federal court may exercise jurisdiction under the “artful pleading” doctrine even where no federal question appears on the face of the complaint. JustMed, Inc. v. Bryce, 600 F.3d 1118, 1124 (9th Cir. 2010). “The burden of establishing federal subject matter jurisdiction falls on the party invoking removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). There is a “strong presumption against removal jurisdiction,” and courts must reject it “if there is any doubt CV-90 CIVIL MINUTES—GENERAL Initials of Deputy Clerk vv UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 13-2131 DMG (VBKx) Date Title Farmers & Merchants Bank of Long Beach v. Mark Allen, et al. March 27, 2013 Page 2 of 2 as to the right of removal in the first instance.” Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation marks omitted). Defendant Kapa argues that the PTFA preempts state law unlawful detainer actions and creates a private right of action for tenants of foreclosed landlords. Contrary to Defendant Kapa’s arguments, courts consistently find that, while the PTFA creates a defense against eviction in some cases, it does not preempt state law unlawful detainer actions or create any private right of action for tenants. See Wells Fargo Bank v. Lapeen, Case No. CV 11-01932, 2011 WL 2194117 at *4 (N.D. Cal. June 6, 2011) (PTFA does not completely preempt a state unlawful detainer action but is father a defense against eviction in some cases); Wescom Credit Union v. Dudley, Case No. CV 10-08203, 201 WL 4916578 at *2-3 (C.D. Cal. Nov. 22, 2010) (same); Logan v. U.S. Bank N.A., Case No. CV 09-08950, 2010 WL 1444878 at *10 (C.D. Cal. Apr. 12, 2010), appeal docketed, Case No. 10-55671 (9th Cir. 2010) (declining to find that Section 702 creates a private right of action). On its face, the Complaint states a single cause of action under Cal. Civ. Proc. Code § 1161a. Because Defendant Kapa has not established a basis for removal jurisdiction on the face of the Notice of Removal, this action is hereby REMANDED to Los Angeles County Superior Court. IT IS SO ORDERED. CV-90 CIVIL MINUTES—GENERAL Initials of Deputy Clerk vv