Briarwood Square Aprtments, LP v. Kino Crayon et al

Filing 10

MINUTES (IN CHAMBERS) Order Granting Plaintiff's Ex Parte Application and Motion to Remand by Judge Cormac J. Carney: The Court GRANTS Plaintiffs ex parte application and GRANTS IN SUBSTANTIAL PART Plaintiffs motion to remand as the Court lacks subject matter jurisdiction over the instant case. However, the Court DENIES Plaintiffs request for attorneys fees. See document for further information. MD JS-6. Case Terminated. (lwag)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES – GENERAL
Case No. SACV 18-00370-CJC(DFMx)

Date: March 9, 2018

Title: BRIARWOOD SQUARE APARTMENTS, LP V. KINO CRAYON, 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 EX
PARTE APPLICATION AND 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 April 9, 2018, at 1:30 p.m. is hereby vacated
and off calendar.
Before the Court is Plaintiff’s motion to remand this case to Orange County
Superior Court and ex parte application to shorten time on Plaintiff’s motion to remand
filed on March 8, 2018. (Dkts. 7, 8.) Plaintiff filed this unlawful detainer action in
Orange County Superior Court on January 30, 2018. (Dkt. 1 Ex. A.) Defendants
removed the action on March 7, 2018. (Dkt. 1 [Notice of Removal].)1 The Court
GRANTS Plaintiff’s ex parte application and GRANTS IN SUBSTANTIAL PART
Plaintiff’s motion to remand as the Court lacks subject matter jurisdiction over the instant
case. However, the Court DENIES Plaintiff’s request for attorneys’ fees.
“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
1

Defendants removed this action 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
because “it is not barred by the provision of 28 U.S.C. § 1446(b).” (Dkt. 1 at 2.)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 18-00370-CJC(DFMx)

Date: March 9, 2018
Page 2

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. Despite Defendants’ assertion in the Notice of Removal
that a federal question exists because the action “depend[s] on the determination of
Defendant’s rights and Plaintiff’s duties under federal law,” (Dkt. 1 at 2), the Complaint
does not include any claim “arising under the Constitution, laws, or treaties of the United
States,” 28 U.S.C. § 1331.
Diversity jurisdiction is lacking, and the case is not removable on that basis either.
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. 28
U.S.C. §§ 1332(a), 1441(b)(2); 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.
Plaintiff requests attorneys’ fees under 28 U.S.C. § 1447(c), which provides that
“[a]n order remanding the case may require payment of just costs and any actual

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 18-00370-CJC(DFMx)

Date: March 9, 2018
Page 3

expenses, including attorney fees, incurred as a result of the removal.” (Dkt. 8 at 11.)
Plaintiff argues this case was removed in bad faith and as a dilatory tactic. (Id.) While
the decision to award fees is in the trial court’s broad discretion, “absent unusual
circumstances, courts may award attorneys’ fees . . . only where the removing party lacks
an objectively unreasonable basis for seeking removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005).
Here, the Court has found that Defendants’ assertion of federal question
jurisdiction was objectively unreasonable. The Court notes, however, that it is unaware
of the circumstances surrounding Defendants’ failure to pay rent that lead to this
unlawful detainer action, and Defendants are proceeding pro se. “In determining whether
to award attorneys’ fees in cases involving improper removal by a pro se defendant,
courts accord significant weight to the defendant’s lack of representation.” Wells Fargo
Bank, N.A. v. Hunt, No. C10–04965JCS, 2011 WL 445801 at *5 (N.D. Cal., Feb.3, 2011)
(collecting cases). Defendants do not have the benefit of legal counsel, thus it may not be
readily apparent to them that their notice of removal lacked an objectively reasonable
basis for asserting this Court has jurisdiction. See OneWest Bank, FSB v. Mohr, No.
C10–00639SBA, 2010 WL 2721437 at *3 (N.D. Cal. July 7, 2010) (denying request for
fees and costs, even where removal was untimely and objectively unreasonable, because
defendants did not have the benefit of legal counsel). Defendants’ lack of representation
constitutes “unusual circumstances,” and therefore the Court declines to award Plaintiff
attorneys’ fees. See, e. g., Arden Mgmt., LLC v. Abdur-Raman, No. CV 12-00898 MMM
JCX, 2012 WL 589659, at *4 (C.D. Cal. Feb. 22, 2012) (declining to award fees in
remanding unlawful detainer case because the defendant was pro se, even though his
assertion of federal question jurisdiction was wrong as a matter of law); Citibank N .A. v.
Ortiz, No. 08cv1301–LAB (RBB), 2008 WL 4771932, *2 (S.D. Cal. Oct. 28, 2008)
(declining to award fees when remanding an unlawful detainer case removed by a pro se
defendant, despite plaintiff’s argument that the court should “construe the attempted
removal as a tactic to delay and otherwise impede its right to recover possession of its
real property”).
aa
MINUTES FORM 11
CIVIL-GEN

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