GW San Diego Properties, LLC et al v. Carlos E. Vera et al

Filing 13

MINUTES (IN CHAMBERS) ORDER by Judge Cormac J. Carney remanding case to Superior Court of California, County of Riverside, Case number RIC 1711693. (see document for details). Case Terminated. Made JS-6 (dro)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES – GENERAL
Case No. EDCV 17-02022-CJC(SHKx)

Date: November 17, 2017

Title: GW SAN DIEGO PROPERTIES, LLC V. CARLOS E. VERA, ET AL.

PRESENT:
HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
Melissa Kunig
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND
Having read and considered the papers presented by the parties, the Court finds
this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local
Rule 7-15. Accordingly, the hearing set for November 27, 2017, at 1:30 p.m. is hereby
vacated and off calendar.
Before the Court is Plaintiff’s motion to remand this case to Riverside Superior
Court. (Dkt. 8.) Defendants have not filed an opposition to this motion. (See generally
docket entries.)1 Plaintiff filed this unlawful detainer action in Riverside Superior Court
on June 27, 2017. (Dkt. 1 Ex. A.) Defendants removed the action on October 3, 2017.
(Dkt. 1 [Notice of Removal].)2 The Court GRANTS Plaintiff’s motion to remand as the
Court lacks subject matter jurisdiction over the instant case.

1

Failure to file an opposition within the deadline may be deemed consent to the granting or
denial of the motion. L.R. 7-12.
2
Defendants removed this action long after the 30 day deadline to file a motion to remove the
action passed. See 28 U.S.C. § 1441. Defendants’ Notice of Removal states that it was timely
filed given that “defendant has not been properly served with a copy of the state summons and
complaint.” (Dkt. 1.)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 17-02022-CJC(SHKx)

Date: November 17, 2017
Page 2

“The 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). Unless 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).
From a review of the Notice of Removal and the state court records provided, it is
evident that the Court lacks subject matter jurisdiction over the instant case. The
underlying action is an unlawful detainer proceeding, arising under and governed by the
laws of the State of California. The Complaint does not include any claim “arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Rather,
removing Defendants asserted that the affirmative defenses at issue give rise to federal
question jurisdiction. However, “the existence of federal jurisdiction depends solely on
the plaintiff’s claims for relief and not on anticipated defenses to those claims.” ARCO
Envtl. Remediation, L.L.C. v. Dept. of Health and Envtl. Quality, 213 F.3d 1108, 1113
(9th Cir. 2000). An “affirmative defense based on federal law” does not “render[] an
action brought in state court removable.” Berg v. Leason, 32 F.3d 422, 426 (9th Cir.
1994). A “case may not be removed to federal court on the basis of a federal defense . . .
even if the defense is anticipated in the plaintiff’s complaint, and even if both parties
admit that the defense is the only question truly at issue in the case.” Franchise Tax Bd.
v. Constr. Laborers Vacation Tr., 463 U.S. 1, 14 (1983).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 17-02022-CJC(SHKx)

Date: November 17, 2017
Page 3

Neither have Defendants alleged facts sufficient to show that the requirements for
removal under 28 U.S.C. § 1443 are satisfied. Section 1443(1) provides for the removal
of a civil action filed “[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 . . . .” Defendants removal purports to “arise[] under Sixth and Fourteenth
Amendment to the United State [sic] Constitution for violations of the state court’s due
process regulations.” (Dkt. 1.) Even assuming that the removing defendants have
asserted rights provided “by explicit statutory enactment protecting equal racial civil
rights,” Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (citation omitted),
Defendants have not identified any “state statute or a constitutional provision that
purports to command the state courts to ignore the federal rights” or pointed “to anything
that suggests that the state court would not enforce [defendants’] civil rights in the state
court proceedings.” Id. (citation omitted); see also Bogart v. California, 355 F.2d 377,
381-82 (9th Cir. 1966) (holding that conclusionary statements lacking any factual basis
cannot support removal under § 1443(1)). Nor does § 1443(2) provide any basis for
removal, as it “confers a privilege of removal only upon federal officers or agents and
those authorized to act with or for them in affirmatively executing duties under any
federal law providing for equal civil rights” and on state officers who refuse to enforce
discriminatory state laws. City of Greenwood v. Peacock, 384 U.S. 808, 824 & 824 n.22
(1966).
Diversity jurisdiction is lacking, and the case is not removable on that basis either.
Every defendant is not alleged to be diverse from every plaintiff, as the Complaint alleges
the Plaintiff is a citizen of California and Defendants state in the Notice of Removal that
they are citizens of California as well. 28 U.S.C. §§ 1332(a), 1441(b)(2). Moreover, the
Complaint does not allege damages in excess of $75,000, and removing Defendants have
not plausibly alleged that the amount in controversy requirement has been met. Id.; see
Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014). The
underlying unlawful detainer action is a limited civil action that does not exceed $25,000.

aa
MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk MKU