HSBC Bank USA National Association v. Narges Kasramehr et al

Filing 9

MINUTE ORDER IN CHAMBERS Order REMANDING Action to California Superior Court for the County of Riverside by Judge Jesus G. Bernal:For the foregoing reasons, the Court REMANDS this action to the Superior Court of California, Riverside County. Case Terminated. Made JS-6 (Attachments: # 1 CV103) (am)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
Title

EDCV 13-0995 JGB (DTBx)

Date

JS-6

July 25, 2013

HSBC Bank USA National Assoc. v. Narges Kasramehr et al.

Present: The Honorable

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for
Defendant(s):

Not Present

Not Present

Proceedings:

Minute Order REMANDING Action to California Superior Court for the
County of Riverside
I. BACKGROUND

On February 5, 2013, Plaintiff HSBC Bank USA National Association (“HSBC”) filed a
complaint for unlawful detainer ("Complaint") against Defendant Narges Kasramehr
("Kasramehr") and fictitious defendants in the California Superior Court for the County of
Riverside. (Not. of Removal, Exh. B, Doc. No. 1.) On June 3, 2013, Defendant Kasramehr
removed the action to this Court. (Id.) On June 25, 2013, Plaintiff HSBC filed a Motion to
Remand this action to Riverside County Superior Court. (Doc. Nos. 3-4.)
II. LEGAL STANDARD
Removal jurisdiction is governed by statute. See 28 U.S.C. §1441. The Ninth Circuit
applies a strong presumption against removal jurisdiction, ensuring "the defendant always has
the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir. 1992) (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir.
1990)); see also In re Ford Motor Co./Citibank, 264 F.3d 952, 957 (9th Cir. 2001) ("The party
asserting federal jurisdiction bears the burden of proving the case is properly in federal court.").
"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); FW/PBS, Inc. v. Dallas, 493 U.S.
215, 231 (1990) ("federal courts are under an independent obligation to examine their own
jurisdiction"); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.").

III. DISCUSSION
Defendant alleges that removal is proper based on 28 U.S.C. § 1443 and 28 U.S.C. §
1332. Neither of these statutes serves as a proper ground for removal of this action.
A.

Civil Rights Removal

Defendant cites 28 U.S.C. § 1443 in support of removal. Section 1443(1) provides for
the removal of any civil or criminal case commenced in state court "[a]gainst any person who is
denied or cannot enforce in the courts of such State a right under any law providing for the equal
civil rights of citizens of the United States, or of all persons within the jurisdiction thereof[.]" 28
U.S.C. § 1443(1). Removal under § 1443(1) requires defendant to satisfy a two-part test: (1)
defendant “must assert, as a defense to the prosecution, rights that are given to [the defendant] by
explicit statutory enactment protecting equal racial civil rights;” and (2) defendant “must assert
that the state courts will not enforce that right, and that allegation must be supported by reference
to a state statute or a constitutional provision that purports to command the state courts to ignore
the federal rights.” Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (internal citation
omitted). Defendant fails to meet both prongs of the test.
A removal notice under § 1443(2) is proper only by federal officers or persons assisting
such officers in performing their duties under federal civil rights laws. City of Greenwood, Miss.
v. Peacock, 384 U.S. 808, 828 (1966). Section 1443(2) does not apply in this instance and the
Court addresses removal under only subsection (1).
In addressing the first prong of § 1443(1), Defendant argues that she has a defense to the
unlawful detainer action under the Due Process Clause of the Fourteenth Amendment because
“Plaintiff's counsel therefore has, in effect, used their knowledge of the law attempting to prevent
Defendant from fully and accurately presenting her case.” (Not. of Removal at 4.)
In State of Georgia v. Rachel, 384 U.S. 780 (1966), the Supreme Court held "that the
phrase 'any law providing for equal civil rights' must be construed to mean any law providing for
specific civil rights stated in terms of racial equality. Thus, the defendants' broad contentions the
Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal
under § 1443, because the guarantees of that clause is phrased in terms of general application
available to all persons or citizens, rather than in the specific language of racial equality that §
1443 demands." Id. at 792. Similarly, here, Defendant's reliance on alleged procedural due
process violations under the Fourteenth Amendment cannot support a claim for removal under §
1443 because those clauses are generally applicable and not specifically stated in terms of racial
equality. See HSBC Bank USA v. Cabal, No. 10-1621, 2010 WL 3769092, at *3 (S.D. Cal.
Sept. 21, 2010) ("Defendant's Fifth and Fourteenth Amendment claims do not assert claims
under laws providing for specific civil rights stated in terms of racial equality because they are
generally applicable."). Thus, Defendant has failed to satisfy the first prong for removal under §
1443.
The second element of Section 1443 removal requires that a petition for removal must
allege, “not merely that rights of equality would be denied or could not be enforced, but that the

denial would take place in the courts of the State[, and that] . . . the denial [must] be manifest in a
formal expression of state law.” Rachel, 384 U.S. at 803. Therefore, a litigant “must assert that
the state courts will not enforce [a specified federal] right, and that allegation must be supported
by reference to a state statute or a constitutional provision that purports to command the state
courts to ignore the federal rights.” People of State of California v. Sandoval, 434 F.2d 635, 636
(9th Cir. 1970).
Defendant’s claim is insufficient to invoke the Court's jurisdiction under § 1443 because
Defendant has failed to identify any specific state statute or constitutional provision that
commands the state courts to ignore her federal rights. See Wells Fargo Bank Nat. Ass'n v.
Vann, No. 13-01148, 2013 WL 1856711 (N.D. Cal. May 2, 2013) (finding that removal was
improper under § 1443 where defendant alleged that the "unlawful detainer complaint process
itself denies homeowners . . . due process rights to unlimited jurisdiction cross complaint and
discovery after sale"); HSBC Bank USA v. Kubik, No. 13-1692, 2013 WL 1694670, at *3 (C.D.
Cal. Apr. 16, 2013) ("Defendant Kubik does not, and cannot, identify any California state law or
constitutional provision that commands state courts to ignore an amendment to the U.S.
Constitution."). Moreover, the allegations Defendant makes regarding the propriety of civil
rights removal are entirely conclusory in nature. Section 1443(1) will not provide jurisdiction
where allegations of discrimination are conclusory and lacking factual basis. See Bogart v.
California, 355 F.2d 377, 380–81 (9th Cir. 1966). Consequently, removal is not proper under §
1443.
B.

Diversity Jurisdiction

Alternatively, Defendant alleges that the basis for removal is diversity jurisdiction
pursuant to 28 U.S.C. § 1332. Diversity jurisdiction requires that the amount in controversy
exceed $75,000 and that the action be between citizens of different states. 28 U.S.C. § 1332(a).
Defendant does not allege the citizenship of the parties.
Jurisdiction, including the amount in controversy, is determined at the moment of
removal. See Strotek Corp. v. Air Transp. Ass'n. of Am., 300 F.3d 1129, 1131 (9th Cir. 2002).
The amount in controversy is determined from the Complaint itself, unless it appears to a legal
certainty that the claim is worth an amount other than that pled in the Complaint. Horton v.
Liberty Mut. Ins. Co., 367 U.S. 348, 354 (1961); Lowdermilk v. United States Bank Nat'l Ass’n,
479 F.3d 994, 999 (9th Cir. 2007). In its Complaint, Plaintiff alleges that its damages do not
exceed $10,000, and it filed the action as a limited civil case. (Compl. at 1.) See Cal. Code Civ.
Proc. § 86 (classifying cases where the prayer is less than $25,000 as limited civil cases).
1
Consequently, it is clear that the amount in controversy does not exceed $75,000, and the Court
lacks diversity jurisdiction to hear the action.

In an unlawful detainer action, the appropriate measure of damages is the amount sought in the
complaint, not the value of the property. Federal Nat. Mortg. Ass’n v. Lemon, No. 11–03948,
2011 WL 3204344, at *2 (C.D. Cal. July 26, 2011) (“[T]he appropriate damages in unlawful
detainer actions remains the amount sought in the complaint, not the value of the property
itself”).
1

"If it clearly appears on the face of the [Notice of Removal] and any exhibits annexed
thereto that removal should not be permitted, the court shall make an order for summary
remand." 28 U.S.C. § 1446(c)(4). Pursuant to 28 U.S.C. § 1446(c)(4), the Court has examined
the Notice of Removal and concludes that Defendants have not met their burden of establishing
that this case is properly in federal court. See In re Ford Motor Co./Citibank (South Dakota),
N.A., 264 F.3d 952, 957 (9th Cir. 2001) ("The party asserting federal jurisdiction bears the
burden of proving the case is properly in federal court.").
IV. CONCLUSION
For the foregoing reasons, the Court REMANDS this action to the Superior Court of
California, Riverside County.
IT IS SO ORDERED.

JS-6

MG