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