Federal Home Loan Mortgage Corporation v. Vargas
Filing
11
FINDINGS and RECOMMENDATIONS To Remand signed by Magistrate Judge Jennifer L. Thurston on 10/3/2011. Objections to F&R due by 10/17/2011. (Leon-Guerrero, A)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
12
13
14
15
16
FEDERAL HOME LOAN
MORTGAGE CORPORATION,
)
)
)
Plaintiff,
)
v.
)
)
)
SUZANNE VARGAS and
)
DOES 1-10, inclusive,
)
)
Defendants.
)
_______________________________________ )
Case No.: 1:11-cv-01364 LJO JLT
FINDINGS AND RECOMMENDATION TO
REMAND THE MATTER TO THE KERN
COUNTY SUPERIOR COURT AND TO
DISMISS THE MATTER
17
Nancy Finzel1, erroneously named as Suzanne Vargas, seeks removal of an unlawful detainer
18
19
action from the Kern County Superior Court. (Doc. 1). Currently before the Court is a motion to
20
remand the action filed by plaintiff Federal Home Loan Mortgage Corporation (“Plaintiff”). (Doc.
21
5). Defendants did not file an opposition to this motion nor did she appear at the hearing. For the
22
following reasons, the Court recommends the motion to remand be GRANTED.
23
///
24
25
1
26
27
28
Defendant Nancy Finzel asserts she was “erroneously sued as Suzanne Vargas” (Doc. 1at 1), though Plaintiff
asserts Ms. Finzel “also referred to herself as Suzanne Vargas.” (Doc. 5 at 1). At the hearing, Plaintiff’s counsel reported
that when service of the eviction documents was accomplished, the person living in the home told the process server that her
name was “Suzanne Vargas.” Notably, the demurrer and the answer filed in the state court action was by and on behalf of,
“Suzanne Vargas.” (Doc. 1 at 2, 66-70; Doc. 5-6) Because Finzel admits she is the proper party in this case, for purposes
of this motion, the Court will assume Ms. Finzel was erroneously sued as “Suzanne Vargas.”
1
1
2
I. Factual and Procedural History
Plaintiff commenced this action by filing a “Complaint for Unlawful Detainer Following
3
Foreclosure Sale CCP Section 1161a” in Kern County Superior Court against Suzanne Vargas and
4
Does 1-10, inclusive, on May 24, 2011, in Case No. S-1500-CL-259616.2 (Doc. 5-2, Ex. 3). In the
5
underlying state court complaint, Plaintiff alleges the company is the owner of property located at
6
2809 Agate Street, Bakersfield, California, and is entitled to that property. (Doc. 1 at 13). Nancy
7
Finzel “and ALL PERSONS IN POSSESSION” of the premises were served with a notice to quit the
8
property on February 15, 2011. Id. at 15. However, the occupants failed to leave the property. Id.
9
Plaintiff sought possession of the property and rental value in the amount of $30.00 per day
10
11
beginning May 23, 2011. Id. at 15-16.
On July 5, 2011, defendant Suzanne Vargas filed a demurrer in the state court and when it
12
was overruled, she filed an answer, in which she generally denied each statement of the complaint.
13
(Doc. 1 at 2, 66-70; Doc. 5-4, Ex. 6). In addition, Ms. Vargas requested that the case be dismissed
14
“based on wrongful foreclosure.” Id.
15
Ms. Finzel filed a Notice of Removal on August 16, 2011, thereby commencing the matter in
16
this Court. (Doc. 1). According to Ms. Finzel, “Defendant filed a demurrer to the Complaint based
17
on a defective notice, i.e., the Notice to Occupants to Vacate Premises, failed to comply with The
18
Protecting Tenants at Foreclosure Act.” Id. at 2. Ms. Finzel asserts the demurrer “depend[s] on the
19
determination of Defendants’ rights and Plaintiff’s duties under federal law.” Id. at 3.
20
II. Removal Jurisdiction
21
Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court
22
where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286,
23
392 (1987). Specifically,
24
25
26
27
28
2
The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). Plaintiff requests the Court take judicial notice of
documents including “records of the Superior Court of California Kern County, Metropolitan Division” related to Case No.
S-1500-CL-259616, including the summons and complaint, proofs of service, and Defendant’s answer. In addition, Plaintiff
requests judicial notice of “records of the County Recorder’s Office of Kern County,” including a deed upon sale and deed
of trust. Because the accuracy of these documents cannot reasonably be questioned, Plaintiff’s request for judicial notice is
GRANTED.
2
1
2
Except otherwise expressly provided by Act of Congress, any civil action brought in a
State court of which the district courts of the United States have original jurisdiction,
may be removed by the defendant or defendants, to the district court of the United States
for the district and division embracing the place where such action is pending.
3
4
28 U.S.C. § 1441(a). District courts have “original jurisdiction of all civil actions arising under the
5
Constitution, laws, or treaties of the United States.” Id. at § 1331.
6
A party seeking removal must file a notice of removal of a civil action within thirty days of
7
receipt of a copy of the initial pleading. Id. at § 1446(b). Removal statutes are to be strictly
8
construed, and any doubts are to be resolved in favor of state court jurisdiction and remand. See
9
Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of
10
proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem.
11
Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 2274 F.3d
12
831, 838 (“the burden of establishing federal jurisdiction falls to the party invoking the statute”).
13
The Court may remand an action to state court for lack of subject matter jurisdiction or for
14
defect in the removal procedure. 28 U.S.C. § 1447(c). A party opposing removal on the basis of a
15
procedural defect must make a motion to remand within thirty days of the filing of the notice of
16
removal. Id.
17
III. Discussion and Analysis
18
As the party seeking removal, Ms. Finzel “bears the burden of actually proving the facts to
19
support jurisdiction, including the jurisdictional amount.” Sanchez v. Monumental Life Ins., 102
20
F.3d 398, 403 (9th Cir. 1996), citing Gaus, 980 F.2d at 677-67. Ms. Finzel asserts the Court has
21
subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1441(a). (Doc. 1 at 2). Specifically,
22
she asserts the Complaint presents federal questions and “could originally could have been filed in
23
this Court.” Id.
24
A. Subject Matter Jurisdiction
25
The determination of federal question jurisdiction “is governed by the ‘well-pleaded
26
complaint rule,’ which provides that federal jurisdiction exists only when a federal question is
27
presented on the face of plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 392).
28
Therefore, the complaint must establish “either that [1] federal law creates the cause of action or that
3
1
[2] the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
2
law.” Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement,
3
524 F.3d 1090, 1100 (9th Cir. 2008), quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
4
463 U.S. 1, 27-28 (1983).
5
The complaint filed in state court stated a single cause of action for unlawful detainer.
6
Importantly, an unlawful detainer action does not arise under federal law, but arises instead under
7
state law. Deutsche Bank Nat’l Trust Co. v. Jora, 2010 U.S. Dist. LEXIS 105453, at *4 (E.D. Cal.
8
Oct. 1, 2010). A plaintiff bringing an unlawful detainer claim is entitled to judgment upon
9
establishing that the property at issue was sold in compliance with California Civil Code §2924 and
10
that the requisite three-day notice to quit to defendant was served as required in California Code of
11
Civil Procedure §1161. See Litton Loan Servicing, L.P. v. Villegas, 2011 U.S. Dist. LEXIS 8018 at
12
*5 (N.D. Cal. Jan. 21, 2011) (citing Evans v. Superior Court, 67 Cal. App. 3d 162, 168 (1977).
13
Thus, the unlawful detainer claim asserted by Plaintiff does not raise a federal question, and the
14
Court lacks subject matter jurisdiction. See Galileo Fin. v. Miin Sun Park, 2009 U.S. Dist. LEXIS
15
94996, at *1-2 (C.D. Cal. Sept. 24, 2009) (“Here, the complaint only asserts a claim for unlawful
16
detainer, a cause of action that is purely a matter of state law. Thus, from the face of the complaint,
17
it is clear that no basis for federal question jurisdiction exists.”)
18
B. Diversity Jurisdiction
19
For the Court to have diversity jurisdiction, the amount in controversy must exceed the sum
20
or value of $75,000. 28 U.S.C. § 1332(a). In an unlawful detainer action, “the right to possession
21
alone [is] involved– not title to the property.” Litton, 2011 U.S. Dist. LEXIS 8018 at *6-7. In the
22
complaint, Plaintiff seeks less than $10,000. (Doc. 1 at 13). Therefore, the amount in controversy is
23
insufficient to establish diversity jurisdiction.
24
IV. Findings and Recommendations
25
Ms. Finzel’s removal failed to establish that the Court has subject matter jurisdiction.
26
Though Ms. Finzel asserted Plaintiff’s complaint raised federal questions, the single cause of action
27
arises under state law.
28
Accordingly, the Court hereby RECOMMENDS that:
4
1
1.
Plaintiff’s motion to remand be GRANTED;
2
2.
The matter be REMANDED to the Kern County Superior Court; and
3
3.
Because the order remanding this matter to state court concludes this case, the Clerk
4
of the Court be directed to close this matter.
5
These Findings and Recommendations are submitted to the United States District Judge
6
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the
7
Local Rules of Practice for the United States District Court, Eastern District of California. Within
8
fourteen days after being served with these findings and recommendations, any party may file
9
written objections with the court. Such a document should be captioned “Objections to Magistrate
10
Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
11
within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst,
12
951 F.2d 1153 (9th Cir. 1991).
13
14
IT IS SO ORDERED.
15
Dated: October 3, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?