County of San Joaquin v. Johnson et al.

Filing 43

ORDER signed by District Judge Kimberly J. Mueller on 10/12/2016 GRANTING 19 Motion to Remand; REMANDING this case to Superior Court of California, County of San Joaquin; DENYING 27 Motion to Strike; DENYING Request for Judicial Notice in support of 28 Motion to Remand; DENYING AS MOOT 18 Motion to Consolidate Cases, 31 Motion to Dismiss, 22 Motion to Dismiss, Strike, or Amend the Complaint, and 17 Motion to Dismiss. CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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COUNTY OF SAN JOAQUIN,

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Plaintiff,

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No. 2:16-cv-00816-KJM-EFB

v.

ORDER

DAVID JOHNSON, et al.,

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Defendants.

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From September 2011 to March 2016, several defendants connected with Herman

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and Helen’s Marina engaged in numerous acts allegedly in violation of state law and County

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ordinances. The County of San Joaquin brought suit against defendants in state court, contending

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defendants’ acts constituted a nuisance. Defendants removed the case, contending this court has

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federal admiralty jurisdiction because the Marina is located on “navigable federal waters.” The

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County disagrees with defendants, and has moved to remand the case to state court.
This motion has been submitted without a hearing, ECF No. 33, and for reasons

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explained below, based on the record before the court, the County’s motion is GRANTED.

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I.

BACKGROUND
A.

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Request for Judicial Notice and Motion to Strike
Defendant John Campagna requests this court take judicial notice of the following

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facts: (1) the “aluminum shards” plaintiff discovered on the Marina dock were non-toxic; and

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(2) the “Title 22 ‘Hazardous Waste’ Toxicity Evaluation of Five Waste Samples” plaintiff

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collected from Marina vessels discloses that none were toxic to fish. ECF No. 28-1 at 2. Because

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these facts are irrelevant to resolution of the pending motion for remand, Mr. Campagna’s request

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is DENIED.

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Defendant Charles Spurlock has made evidentiary objections to portions of

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plaintiff’s motion to remand, and moves to strike those portions objected to. See ECF No. 27. In

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essence, Mr. Spurlock attempts to mount a factual attack on plaintiff’s allegations in the

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complaint. Such an attack is properly presented in a motion to dismiss. While noting that Mr.

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Spurlock also has filed a motion to dismiss, ECF No. 31, the court addresses here the threshold

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question of remand. Mr. Spurlock’s motion is DENIED.

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B.

Complaint

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1.

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On September 9, 2011, the San Joaquin County Environmental Health Department

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(“EHD”) received a complaint of numerous health and safety violations occurring at Herman and

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Helen’s Marina (the Marina), an establishment located on contiguous land, levee, and water

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parcels known as 15135, 15050, and 15123 W. Eight Mile Road, Stockton California 95219, and

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assessor parcel numbers 069-080-21, 069-090-31, 069-090-37, and 069-010-10 (“Subject

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Property”). Compl. ¶¶ 3, 69, ECF No. 1. The health and safety violations arose from an

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occupied, unpermitted mobile home, an unpermitted restroom building, an illegal septic system,

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and the use of a holding tank for sewage from a portable restroom. Id. ¶ 69. In November 2011,

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the EHD issued a Notice and Abate Order to Delta Transport, Inc. (Delta Transport), an owner of

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the Marina, and the Delta Farms Reclamation District, an owner of the Subject Property.

Environmental Health Department Investigation

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Id. ¶ 82. While the Reclamation District remedied all health and safety violations within its

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control, including destroying all abandoned septic tanks, other violations remain uncorrected. Id.

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¶ 84.

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In May 2015, EHD received a complaint regarding “[s]hip cutting operations at

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[the Marina].” Id. ¶ 85. After investigating, the EHD issued Waste Discharge and Spill Response

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Notices to Delta Transport and Richard Churches. Id. at ¶ 87. Mr. Churches is the owner of at

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least three large freight barges, one large decommissioned military vessel known as a

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minesweeper and named the Chaleur, and a wooden vessel moored at the Subject Property.

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Id. ¶¶ 13, 87. These Notices were issued for violations arising from waste discharge within 150

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feet of a waterway. Id. ¶¶ 87(a)–(b). Neither Delta Transport nor Richard Churches took

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corrective action. Id. ¶ 99.

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That same month, EHD received another complaint, which stated the Chaleur was

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sinking or leaning very heavily, with possible oil slicks spilling into the water. Id. ¶ 91. The

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complainant noted scrap, garbage, and oil residue covered the decks of the Chaleur, and

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aluminum cuttings fell into the water as a result of someone “cutting up” the Chaleur. Id. After

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confirming spills from the Chaleur constituted hazardous waste, EHD mailed a Waste Discharge

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and Spill Response Notice to Abate to Richard Churches, Delta Transport, and the attorney for

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Mr. Churches, identified as Glen Peterson. Id. ¶ 97. No one has taken corrective action. Id.

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¶¶ 99–101.

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2.

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On December 20, 2013, the County’s Community Development Department

County Community Development Department Investigations

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(“CDD”) received a complaint of a ship salvage and repair business operating at the Marina.

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Id. ¶ 33. After investigating the complaint, the CDD issued a Notice to Comply against Delta

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Transport and the Marina for operating a mooring facility for large ships and expanding the

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Marina without a proper land use permit. Id. ¶ 39. On March 12, 2014, the CDD received

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another complaint regarding barges, floating homes, and large moored ships at the Marina.

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Id. ¶ 42. After investigating, the CDD issued another Notice to Comply against Delta Transport

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and the Marina. Id. ¶ 58. Neither Delta Transport nor the Marina complied with the Notice. Id.
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On February 9, 2015, CDD received a complaint regarding Mr. Churches’ salvage

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and construction operation on the Subject Property, including dismantling a 40-foot boat and

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bringing in another unpermitted barge. Id. ¶ 59. Two days later, a CDD representative spoke

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with Mr. Churches, who confirmed he was performing salvage operations. Id. ¶ 61. Mr.

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Churches has not stopped performing salvage operations. Id. ¶ 68.

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C.

Procedural History
On March 16, 2016, the County of San Joaquin filed suit in San Joaquin County

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Superior Court, alleging defendants violated San Joaquin County Development Title 9; the

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San Joaquin County Ordinance Code; and California Business and Professions Code Section

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17200, et. seq. Id. ¶¶ 111–127. The County named ten defendants connected with Herman and

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Helen’s Marina: (1) David Johnson; (2) Delta Transport; (3) Herman and Helen’s Marina;

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(4) John Campagna; (5) Chuck Spurlock; (6) H&H Marina Properties; (7) Joe Faso; (8) Joseph

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Zeiter; (9) Richard “Rick” Churches; and (10) Mario Sculatti. Id. ¶¶ 5–13.

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On April 20, 2016, defendants removed the case to this court. Not. Remov., ECF

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No. 1. In their notice, defendants contend this court has jurisdiction because the Marina is

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“located on navigable Federal [w]aters,” and is adjacent to levees constructed by the Army Corps

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of Engineers. Id. ¶¶ 15, 18.

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After removal, defendants John Campagna and Chuck Spurlock moved to dismiss

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the County’s complaint. ECF Nos. 17, 31. Mr. Spurlock brought an additional motion to strike,

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dismiss, or amend the complaint, ECF No. 22, and to consolidate this case with California v.

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Herman and Helen’s Marina, Case No. 16-00803 (E.D. Cal. filed Apr. 19, 2016) (“803 Case”),

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which was closed in June 2016. See ECF No. 18.

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The County has moved to remand this case back to the Superior Court. Mot.

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Remand, ECF No. 19. Further, the County has opposed Mr. Campagna’s motion to dismiss the

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complaint, ECF No. 26, opposed Spurlock’s motion to strike, dismiss, or amend the complaint,

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ECF No. 35, and filed a non-opposition to Spurlock’s motion to consolidate, ECF No. 21. The

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County did not respond to Mr. Spurlock’s motion to dismiss the County’s complaint.

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Mr. Campagna and Mr. Spurlock oppose the County’s motion to remand.

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Campagna Opp’n, ECF No. 28; Spurlock Opp’n, ECF No. 29. Mr. Spurlock also moves to strike

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portions of the County’s motion to remand. ECF No. 27. The County did not reply to Mr.

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Spurlock’s motion to strike portions of the County’s motion to remand. Mr. Campagna replied to

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the County’s opposition to his motion to dismiss. ECF No. 32. Mr. Spurlock replied to the

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County’s opposition to its motion to strike portions of the County’s motion to remand. ECF No.

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38.

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The court has addressed Mr. Spurlock’s motion to strike above. Because the court
remands the case, as explained below, it does not reach the merits of the other pending motions,

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but DENIES them as moot.

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II.

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LEGAL STANDARD
When a case of the type “of which the district courts of the United States have

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original jurisdiction” is initially brought in state court, a defendant may remove it to federal court.

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28 U.S.C. § 1441(a). District courts have original jurisdiction over civil actions arising under

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federal law. Id. § 1331.

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Under § 1331, district courts have federal question jurisdiction over “all civil

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actions arising under the Constitution, laws, or treaties of the United States.” Id. As also

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discussed below, courts have original jurisdiction over cases in admiralty. U.S. Const. Art. III, §

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2, cl. 1; 28 U.S.C. § 1333(1). Under the longstanding well-pleaded complaint rule, a suit “arises

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under” federal law “only when the plaintiff’s statement of his own cause of action shows that it is

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based upon [federal law].” Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908).

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Federal question jurisdiction cannot rest upon an actual or anticipated defense or counterclaim.

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Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).

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The Ninth Circuit strictly construes the removal statute against removal

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jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Federal jurisdiction must be

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rejected if there is any doubt as to the right of removal in the first instance. Id. The “strong

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presumption” against removal jurisdiction means that the defendant always has the burden of

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establishing that removal is proper. Id. There appears to be no exception to this rule when a

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defendant, as here, seeks to remove a case based on an assertion of admiralty jurisdiction.

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III.

DISCUSSION

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The County contends this court has no jurisdiction over this case because neither

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the complaint nor defendants’ federal defenses provide a basis for federal question jurisdiction.

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Mot. Remand at 4–8. Mr. Spurlock and Mr. Campagna oppose the County’s motion, contending

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the County asserts claims that fall within this court’s admiralty jurisdiction. Campagna Opp’n at

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10; Spurlock Opp’n at 2.

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A federal court’s authority to hear cases in admiralty flows initially from the

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Constitution, which “extend[s]” federal judicial power “to all Cases of admiralty and maritime

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Jurisdiction.” U.S. Const., Art. III, § 2. Congress has embodied that power in a statute giving

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federal district courts “original jurisdiction . . . of . . . [a]ny civil case of admiralty or maritime

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jurisdiction . . . .” 28 U.S.C. § 1333(1); Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

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Co. (Jerome), 513 U.S. 527, 531 (1995). In 1948, Congress enacted the Extension of Admiralty

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Jurisdiction Act, which provides,

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[t]he admiralty and maritime jurisdiction of the United States
extends to and includes cases of injury or damage, to person or
property, caused by a vessel on navigable waters, even though the
injury or damage is done or consummated on land.

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46 U.S.C. § 30101; see also Jerome, 513 U.S. at 532 (reviewing provisions of the Extension of

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Admiralty Jurisdiction Act). The purpose of the Act was to clarify the sometimes confusing line

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between land and water, by investing admiralty with jurisdiction over “all cases” where the injury

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was caused by a ship or other vessel on navigable water, even if such injury occurred on land.

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See, e.g., Jerome, 513 U.S. at 532; Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 260

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(1972) (“This Act was passed specifically to overrule cases . . . holding that admiralty does not

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provide a remedy for damage done to land structures by ships on navigable waters”); Gutierrez v.

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Waterman S.S. Corp., 373 U.S. 206, 209–10 (1963) (discussing Act in context of ship owner’s

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liability for his torts which have impacts on shore). Specifically, the Act clarified jurisdictional

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questions over cases where, for example, a tort action was brought by the owner of warehouse

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destroyed in a fire that started on board a ship docked nearby. Jerome, 513 U.S. at 532.

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A party seeking to invoke federal admiralty jurisdiction must satisfy conditions

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both of location and connection with maritime activity. Jerome, 513 U.S. at 534. A court

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applying the location test must determine whether the incident occurred on navigable water or

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whether an injury suffered on land was caused by a vessel on navigable water. Id. The

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connection test requires two separate considerations. A court first must “assess the general

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features of the type of incident involved,” to determine whether the incident has “a potentially

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disruptive impact on maritime commerce.” Id. (internal citations omitted). The “general

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features” test turns on a description of the incident at an intermediate level of possible generality.

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Id. at 539. Second, the court must determine whether “the general character” of the “activity

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giving rise to the incident” shows a “substantial relationship to traditional maritime activity.” Id.

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at 535. In analyzing the second part, the court asks whether the wrongdoer’s activity, commercial

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or noncommercial, on navigable waters is so closely related to activity traditionally subject to

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admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand.

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Id. at 539–40. Navigation of boats in navigable waters clearly falls within the substantial

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relationship. Id. Storing such boats at a marina on navigable waters is close enough to support

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the required connection, whereas in flying an airplane over the water, or in swimming, the

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relationship is too attenuated. Id.

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Here, the Marina is located on contiguous land, levee, and water parcels. Compl.

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¶¶ 3, 69. Mr. Spurlock and Mr. Campagna contend the Marina is located on “navigable waters,”

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and is adjacent to the levees constructed by the Army Corps of Engineers. Campagna Opp’n at

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10; Spurlock Opp’n at 2. These factors, defendants contend, mean the Marina “easily qualifies as

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a maritime situs.” Campagna Opp’n at 10; Spurlock Opp’n at 2. But in making their breezy

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“easy qualification” argument, defendants rely only on the notice of removal, which does make

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assertions consistent with admiralty jurisdiction. See Campagna Opp’n at 6. In determining

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removability, however, as a general matter the court reviews the four corners of the complaint.

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See Ultramar Am. Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990) (“existence of federal
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question jurisdiction is determined from the face of the complaint”). Here, the court has carefully

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reviewed the complaint itself and cannot say that, on its face, it necessarily invokes federal

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admiralty jurisdiction. Even if the court took notice of certain facts pled in the complaint that

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might give rise to admiralty jurisdiction, to conclude this court definitively has jurisdiction would

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require the making of arguments that as a general rule are outside the court’s province. See

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Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (courts do not “manufacture” arguments for a

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litigant, and “[j]udges are not like pigs, hunting for truffles buried in briefs”) (citation omitted).

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Because defendants do not point to authority supporting their bare conclusion that the record here

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demonstrates the Marina’s location on navigable waters, they have not satisfied the “location”

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requirement of maritime jurisdiction. Accordingly, the court need not address whether

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defendants have satisfied the “connection” requirement, and concludes defendants have not met

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their burden of establishing jurisdiction in this court.

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IV.

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CONCLUSION
The County’s motion to remand, ECF No. 19, is GRANTED and the case is

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remanded to San Joaquin County Superior Court. Mr. Spurlock’s motion to strike portions of the

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County’s motion to remand, ECF No. 27, is DENIED. Mr. Campagna’ request for judicial notice,

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ECF No. 28-1, is DENIED. Mr. Spurlock’s motions to consolidate cases, ECF No. 18, to

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dismiss, ECF No. 31, and to dismiss, strike, or amend the complaint, ECF No. 22, are DENIED

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as MOOT. Mr. Campagna’s motion to dismiss, ECF No. 17, is similarly DENIED as MOOT.

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This case is CLOSED.

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This order resolves ECF Nos. 17, 18, 19, 22, 27, and 31.

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IT IS SO ORDERED.

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DATED: October 12, 2016.

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UNITED STATES DISTRICT JUDGE
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