CN Southern Properties and Investments Inc v. Evangelina Carrillo et al

Filing 11

MINUTES (IN CHAMBERS): ORDER GRANTING PLAINTIFF'S MOTION TO REMAND TO STATE COURT 19 by Judge S. James Otero. Plaintiff's Motion to Remand Case to Los Angeles Superior Court is GRANTED. IT IS SO ORDERED. (See attached document for details.) Case remanded to Superior Court of California at Pasadena Courthouse; case no. 15P00120. MD JS-6. Case Terminated. (Mailed 4/14/15) (lom)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 14, 2015

CASE NO.: CV 15-01400 SJO (ASx)
TITLE:

CN Southern Properties & Investments, Inc. v. Evangelina Carrillo

========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz
Courtroom Clerk

Not Present
Court Reporter

COUNSEL PRESENT FOR PLAINTIFF(S):

COUNSEL PRESENT FOR DEFENDANT(S):

Not Present

Not Present

========================================================================
PROCEEDINGS (in chambers): ORDER GRANTING PLAINTIFF'S MOTION TO REMAND TO
STATE COURT [Docket No. 9]
This matter is before the Court on Plaintiff CN Southern Properties & Investment's ("Plaintiff")
Motion to Remand to State Court ("Motion"). Defendant Evangelina Carillo ("Defendant") has not
filed an opposition. The Court found this matter suitable for disposition without oral argument and
vacated the hearing set for April 13, 2015. See Fed. R. Civ. P. 78(b). For the following reasons,
Plaintiff's Motion is GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On January 6, 2015, Plaintiff initiated this unlawful detainer action in the Superior Court of
California Los Angeles County. (See generally Request for Judicial Notice in Support of Motion
("RJN"), Ex. 2 ("Compl."), ECF No. 9-4.) Plaintiff alleged that Defendant remained in unlawful
possession of the property located at 1211 S. Wilson Drive, West Covina, CA 91791 (the
"Property") after being served with a 3-day notice to quit. (Compl. ¶ 10.) Defendant was
personally served with a copy of the Summons and Complaint by the Los Angeles County Sheriff's
Department on January 23, 2015. (See RJN, Ex. 9. ("Proof of Service"), ECF No. 9-11.) On
March 2, 2015, the parties executed a stipulation and judgment agreeing that Defendant was to
pay Plaintiff $1700 in holdover damages and to vacate the Property by April 30, 2015. (See RJN,
Ex. 6 ("Stipulation"), ECF No. 9-8.) The stipulation was entered into judgment by Judge Gus
Gomez. (See RJN, Ex. 7 ("Judgment"), ECF No. 9-9.) On February 26, 2015, Defendant filed the
Notice of Removal. (Notice of Removal, ECF No. 1.) On March 12, 2015, Plaintiff filed the instant
Motion. (Motion, ECF No. 9.)
II.

DISCUSSION

Procedure for removal is governed by 28 U.S.C. section 1446 which provides that:

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 14, 2015

CASE NO.: CV 15-01400 SJO (ASx)

"A defendant or defendants desiring to remove any civil action from a State court
shall file in the district court of the United States for the district and division within
which such action is pending a notice of removal signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and containing a short and plain statement of the
grounds for removal, together with a copy of all process, pleadings, and orders
served upon such defendant or defendants in such action."
28 U.S.C. § 1446(a).
"The notice of removal of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or proceeding
is based, or within 30 days after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not required to be served on the
defendant, whichever period is shorter."
28 U.S.C. § 1446(b)(1) (emphasis added).
Here, Defendant was personally served with the Summons and Complaint by the Los Angeles
County Sheriff's Department, on January 23, 2015. (See RJN, Ex. 9.) The Notice of Removal was
filed on February 26, 2015, three days after the deadline. (See Notice of Removal, ECF No. 1.)
Therefore, Defendant's Notice of Removal was filed untimely.
Additionally, Plaintiff argues that the Court does not have diversity jurisdiction because both
Plaintiff and Defendant are citizens of California. Diversity jurisdiction requires: (1) complete
diversity, so that each plaintiff is a citizen of a different state from each defendant; and (2) an
amount in controversy exceeding $75,000. See 28 U.S.C. § 1332(a); see also Munoz v. Small
Bus. Admin., 644 F.2d 1361, 1365 (9th Cir. 1981). For purposes of diversity, corporations are
citizens of their state of incorporation and the state in which they have their principal place of
business, 28 U.S.C. § 1332(c), individuals are citizens of their state of domicile, Kanter v. WarnerLambert Co., 265 F.3d 853, 857 (9th Cir. 2001), and limited liability companies share the
citizenship of their members, Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th
Cir. 2006).
Here, Defendants baldly assert, without any supporting evidence, that there is complete diversity
of citizenship between the parties because Salazar is a resident of California while Plaintiff is
incorporated in a state "other than California" and therefore is not a citizen of California. (Notice
¶ 6.) Defendants also allege, again without support, that the amount in controversy more likely
than not exceeds $75,000 "based on Plaintiff's claims, [its] alleged injuries and the recovery
sought." (Notice ¶ 10.) Neither allegation is supported by the Complaint nor by the Notice of
Removal. In the Complaint, Plaintiff admits to being a California corporation, (Compl. ¶ 1), and

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 14, 2015

CASE NO.: CV 15-01400 SJO (ASx)

in the Notice of Removal, Defendant admits to being a citizen of California, (Notice ¶ 6).
Therefore, the parties lack complete diversity.
Defendants also allege that the amount in controversy exceeds $75,000 because the value of the
Property is valued at over $75,000. (Notice ¶¶ 4,8.) This allegation is not supported by the
Complaint. Plaintiff sought damages in the amount of $30 per day which was the reasonable
value for use of the property. (Compl. ¶ 13.) This amounts to $10,950 per year, and the It is
Plaintiff, not Defendants, who determines the amount in controversy. See St. Paul Mercury Indem.
Co. v. Red Cab Co., 303 U.S. 283, 288 (1938) ("[T]he sum claimed by the plaintiff controls"). For
the aforementioned reasons, Defendants have failed to establish either complete diversity or a
sufficient amount in controversy for the purpose of evoking diversity jurisdiction. See Gaus, 980
F.2d at 566; 28 U.S.C. § 1332(a).
Plaintiff's Motion to Remand Case to Los Angeles Superior Court is GRANTED.
IT IS SO ORDERED.

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