D and A Intermediate-Term Mortgage Fund III LP v. Ian Anthony Suite et al

Filing 7

ORDER by Judge Andrew J. Guilford remanding case to Superior Court of California, County of Orange, Case number 30-02016-00866032-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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D & A INTERMEDIATE-TERM
MORTGAGE FUND III LP,
Plaintiff,

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IAN ANTHONY SUITE, DOES 1 to
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Defendants.

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I.

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ORDER REMANDING CASE
TO STATE COURT

v.

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Case No. SACV 17-00214-AG (KESx)

BACKGROUND
On July 26, 2016, Plaintiff filed an unlawful detainer action against
Defendants in the Orange County Superior Court. (Notice of Removal, Ex. 1 [state
court complaint.]) On January 2, 2017, Defendant Ian Anthony Suite filed a Notice
of Removal of that action in this Court, accompanied by a request to proceed in
forma pauperis (“IFP”). See D & A Intermediate-Term Mortgage Fund III LP v. Ian
Anthony Suite, et al., 8:17-sacv-00003-DOC-KESx. Defendant Suite’s request for
IFP was denied and the matter remanded to state court on January 5, 2017. (Id. at
Dkts. 6, 7.)
On February 7, 2017, Michael Anthony Garcia, an interested party in the

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same unlawful detainer action, filed the Notice of Removal and IFP request now

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before this Court.1 Mr. Garcia contends that he is a defendant in this case, and that

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“Plaintiff failed to contact Defendant [Garcia] to work out any agreement and filed

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an Unlawful Detainer case against Defendant [Suite] excluding Defendant [Garcia]

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from the law suit under deceit.” (Notice of Removal at 5.)

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Mr. Garcia alleges that removal is proper under federal question jurisdiction

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because Plaintiff violated the federal Protecting Tenants at Foreclosure Act. (Id. at

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1-3.) Alternatively, he contends that removal is proper under 28 U.S.C. § 1443

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because he has been deprived of his constitutional rights by the application of

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California statutory provisions authorizing evictions in unlawful detainer

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proceedings. (Id. at 7.) Defendant, in conclusory language, also lists the First, Fifth,

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Ninth, and Fourteenth Amendments, “the Article I guarantee against state

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‘impairment of the obligations of contract,” and 42 U.S.C. §§ 1981, 1982, 1983,

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and 1985 in support of federal jurisdiction. (Id. at 8-9.)

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The Court sua sponte REMANDS this action to the California Superior Court
for the County of Orange for lack of subject matter jurisdiction, as set forth below.

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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

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Pursuant to Porter v. Ollison, 620 F.3d 952, 954-55 (9th Cir. 2010) (noting
that it is proper to take judicial notice of “any state court dockets or pleadings that
have been located (including on the internet)”), the court takes judicial notice of the
Superior Court of Orange County’s website. On February 2, 2017, Michael
Anthony Garcia was added to this case as an interested party. See
www.ocapps.occourts.org. The Court notes that only defendants may remove a case
from state court. 28 U.S.C. § 1441(a). However, because it appears that the
Superior Court of Orange County has treated Mr. Garcia identically to the named
Defendants in this case, the Court will assume that Mr. Garcia is a proper
Defendant and proceed with the traditional removal analysis.
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act of Congress.’” Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32

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(2002) (quoting Great Northern R. Co. v. Alexander, 246 U.S. 276, 280 (1918)).

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

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

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661, 667 (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

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establishing federal jurisdiction. Abrego v. Dow Chemical Co., 443 F.3d 676, 682

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(9th Cir. 2006); Gaus, 980 F.2d at 566-67. “Under the plain terms of § 1441(a), in

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

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defendant] must demonstrate that original subject-matter jurisdiction lies in the

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federal courts.” Syngenta Crop Protection, 537 U.S. at 33. Failure to do so requires

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

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. . . the district court must remand if it lacks jurisdiction.” Kelton Arms Condo.

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Owners Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). “If at

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any time before final judgment it appears that the district court lacks subject matter

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

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the subject matter jurisdiction of the district court is not a waivable matter and may

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be raised at any time by one of the parties, by motion or in the responsive

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pleadings, or sua sponte by the trial or reviewing court.” Emrich v. Touche Ross &

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Co., 846 F.2d 1190, 1194 n.2 (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

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

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

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admit that the defense is the only question truly at issue in the case.” Franchise Tax

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

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basis for 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

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alleged to be diverse from every plaintiff. 28 U.S.C. § 1332(a). The Complaint does

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not allege damages in excess of $75,000; to the contrary, it is a limited civil action

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in which the amount in controversy does not exceed $10,000.

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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

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law 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

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

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court. Peacock, 384 U.S. at 828.

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Defendant’s conclusory invocation of 28 U.S.C. § 1443 does not satisfy

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either prong of the test. Defendant alleges that his constitutional rights are

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“systematically trampled in state courts” and that state laws are preventing him

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from raising his federal claims. (Notice of Removal at 7.) He also claims that the

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“pervasive state statutory program” discriminates against pro se litigants and

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therefore “directly violates Federal U.S. laws guaranteeing equality of access to the

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courts.” (Notice of Removal at 9.) These bare assertions are insufficient to invoke

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the Court’s jurisdiction. Defendant “must assert that the state courts will not enforce

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[a specified federal] right, and that allegation must be supported by reference to a

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state statute or a constitutional provision that purports to command the state courts

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to ignore the federal rights.” People of State of California v. Sandoval, 434 F.2d

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635, 636 (9th Cir. 1970). Defendant has failed to identify any specific state statute

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or constitutional provision that commands the state courts to ignore her federal

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rights. See HSBC Bank USA v. Kubik, No. 13-1692, 2013 WL 1694670, at *3

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(C.D. Cal.Apr.16, 2013) (“Defendant Kubik does not, and cannot, identify any

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California state law or constitutional provision that commands state courts to ignore

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an amendment to the U.S. Constitution.”). Moreover, the allegations he does make

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are entirely conclusory in nature. Section 1443(1) will not provide jurisdiction

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where allegations of discrimination are conclusory and lacking factual basis. See

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Bogart v. California, 355 F.2d 377, 380-81 (9th Cir. 1966). Consequently, removal

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is not proper under § 1443(1).

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//

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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

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of the State of California for the County of Orange.

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DATED: February 9, 2017

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____________________________________
ANDREW J. GUILFORD
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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