Mount Trust No 11261 v. Jose N. Carmona et al

Filing 7

ORDER by Judge Cormac J. Carney,, ORDER by Judge Cormac J. Carney remanding case to Superior Court of California, County of Orange, Case number 30-02016-00883060-CL-UD-CJC. (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MOUNT TRUST #11261, GRE
DEVELOPMENT INC., AS
TRUSTEE,

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Case No. SACV 16-2167-CJC (KES)
ORDER REMANDING CASE
TO STATE COURT

Plaintiff,
v.
JOSE N. CARMONA, GRACIELA
DEL CARMEN PENA, DOES 1- 5,
Defendant.

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I.

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BACKGROUND

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On October 25, 2016, Plaintiff filed an unlawful detainer action against

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Defendants in the Orange County Superior Court. (Dkt. 1 at 21-23 [state court

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complaint].) On December 7, 2016, Defendant Jose N. Carmona filed a Notice of

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Removal of that action in this Court. (Dkt. 1.) He also filed a request to proceed in

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forma pauperis. (Dkt. 3.)

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California Superior Court for the County of Orange for lack of subject matter

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jurisdiction, as set forth below.

The Court sua sponte REMANDS this action to the

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II.

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DISCUSSION

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“The right of removal is entirely a creature of statute and ‘a suit commenced

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in a state court must remain there until cause is shown for its transfer under some act

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of Congress.’” Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002)

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(quoting Great Northern R. Co. v. Alexander, 246 U.S. 276, 280 (1918)). Where

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Congress has acted to create a right of removal, those statutes are strictly construed

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against removal jurisdiction. Id.; Nevada v. Bank of Am. Corp., 672 F.3d 661, 667

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(9th Cir. 2012); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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Unless otherwise expressly provided by Congress, a defendant may remove

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“any civil action brought in a State court of which the district courts of the United

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States have original jurisdiction.” 28 U.S.C. § 1441(a); Dennis v. Hart, 724 F.3d

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1249, 1252 (9th Cir. 2013). The removing defendant bears the burden of establishing

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federal jurisdiction. Abrego v. Dow Chemical Co., 443 F.3d 676, 682 (9th Cir.

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2006); Gaus, 980 F.2d at 566-67. “Under the plain terms of § 1441(a), in order

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properly to remove [an] action pursuant to that provision, [the removing defendant]

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must demonstrate that original subject-matter jurisdiction lies in the federal courts.”

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Syngenta Crop Protection, 537 U.S. at 33. Failure to do so requires that the case be

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remanded, as “[s]ubject matter jurisdiction may not be waived, and . . . the district

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court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n v.

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Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). “If at any time before final

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judgment it appears that the district court lacks subject matter jurisdiction, the case

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shall be remanded.” 28 U.S.C. § 1447(c). It is “elementary that the subject matter

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jurisdiction of the district court is not a waivable matter and may be raised at anytime

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by one of the parties, by motion or in the responsive pleadings, or sua sponte by the

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trial or reviewing court.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2

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(9th Cir. 1988).

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A.

Federal Question Jurisdiction.

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The underlying action is an unlawful detainer proceeding, arising under and

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governed by the laws of the State of California. The state-court Complaint does not

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include any claim “arising under the Constitution, laws, or treaties of the United

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States.” 28 U.S.C. § 1331. Federal defenses or federal counterclaims do not provide

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a basis to remove an action which does not otherwise establish federal jurisdiction.

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“[T]he existence of federal jurisdiction depends solely on the plaintiff’s claims for

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relief and not on anticipated defenses to those claims.” ARCO Envtl. Remediation,

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L.L.C. v. Dept. of Health and Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000).

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An “affirmative defense based on federal law” does not “render[] an action brought

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in state court removable.” Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994). A “case

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may not be removed to federal court on the basis of a federal defense … even if the

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defense is anticipated in the plaintiff's complaint, and even if both parties admit that

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the defense is the only question truly at issue in the case.” Franchise Tax Bd. v.

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Construction Laborers Vacation Trust, 463 U.S. 1, 14 (1983). There is no basis for

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federal question jurisdiction.

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B.

Diversity Jurisdiction.

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There is also no basis for diversity jurisdiction. Every defendant is not alleged

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to be diverse from every plaintiff. 28 U.S.C. § 1332(a). The Complaint does not

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allege damages in excess of $75,000, and Defendant has not shown, by a

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preponderance of the evidence, that the amount in controversy requirement has been

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met. Id.; Abrego, 443 F.3d at 683. It is also apparent from the state-court records

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that the underlying unlawful detainer action is a limited civil action that does not

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exceed $10,000. [Defendant alleges, “THIS IS NOT BASED on grounds of diversity

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of citizenship, amount in controversy in excess of $75,000 does not apply.”] (Dkt. #

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[Notice of Removal] at 8.)] The action is not removable on diversity grounds because

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Defendant appears to be a citizen of California, where the action was filed. 28 U.S.C.

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§ 1441(b)(2) (stating that removal is not allowed if “any of the parties in interest
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properly joined and served as defendants is a citizen of the State in which such action

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is brought”).

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C.

Jurisdiction under 28 U.S.C. § 1443.

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Section 1443(1) permits a defendant in state cases to remove the proceedings

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to the federal district courts when a defendant is “denied or cannot enforce in the

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courts of such State a right under any law providing for the equal civil rights of

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citizens in the United States.” In order to successfully remove, the defendant must

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satisfy a two-prong test: 1) the rights allegedly denied must arise under a federal law

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providing for specific civil rights stated in terms of racial equality; and 2) the

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defendant must be denied or unable to enforce the rights in state courts. Johnson v.

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Mississippi, 421 U.S. 213, 219 (1975); City of Greenwood, Miss. v. Peacock, 384

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U.S. 808, 827-28 (1966); Georgia v. Rachel, 384 U.S. 780, 792 (1966). Under the

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first prong, constitutional or statutory provisions of general applicability or under

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statues not protecting against racial discrimination will not suffice. Johnson, 421

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U.S. at 219. Under the second prong, a defendant’s federal rights are left to the state

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courts except in rare situations where it can be clearly predicted that those rights will

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inevitably be denied by the very act of bringing the defendant to trial in state court.

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Peacock, 384 U.S. at 828.

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While a violation of 42 U.S.C. §§ 1981 and 1982 may satisfy the first prong

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of this test, Defendant cannot satisfy the second. Defendant alleges that he is being

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discriminated against as a homeowner and as an “Ethnic-Surname American,” and

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the state court ignores him and refuses to accept his requests for equitable relief. (Dkt.

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1 at 5, 7-8.) He also asserts that he will be unable to raise her federal claims in state

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court because state courts “rubber-stamp” all non-judicial foreclosures and summary

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evictions. (Id. at 6, 11-13.)

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These bare assertions are insufficient to invoke the Court’s jurisdiction.

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Defendant “must assert that the state courts will not enforce [a specified federal]

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right, and that allegation must be supported by reference to a state statute or a
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constitutional provision that purports to command the state courts to ignore the

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federal rights.” People of State of California v. Sandoval, 434 F.2d 635, 636 (9th

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Cir. 1970). Defendant has failed to identify any specific state statute or constitutional

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provision that commands the state courts to ignore her federal rights. See HSBC

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Bank USA v. Kubik, No. 13-1692, 2013 WL 1694670, at *3 (C.D. Cal.Apr.16, 2013)

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(“Defendant Kubik does not, and cannot, identify any California state law or

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constitutional provision that commands state courts to ignore an amendment to the

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U.S. Constitution.”). Moreover, the allegations he does make are entirely conclusory

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in nature.

Section 1443(1) will not provide jurisdiction where allegations of

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discrimination are conclusory and lacking factual basis. See Bogart v. California,

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355 F.2d 377, 380-81 (9th Cir. 1966). Consequently, removal is not proper under §

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1443(1).

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III.

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CONCLUSION

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This Court does not have subject matter jurisdiction over this case. IT IS

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THEREFORE ORDERED that this matter be REMANDED to the Superior Court of

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the State of California for the County of Orange.

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DATED: December 8, 2016

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____________________________________
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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Presented by:

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__________________________
KAREN E. SCOTT
United States Magistrate Judge

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