IIG Properties LLC v. Jimenez

Filing 11

ORDER GRANTING 4 Plaintiff's Motion to Remand and DENYING Plaintiff's Request for Attorney's Fees. The court remands the action back to Contra Costa County Superior Court. The Clerk of the Court shall close the file. Signed by Magistrate Judge Laurel Beeler on 1/24/2013.(lblc2, COURT STAFF) (Filed on 1/24/2013)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

Northern District of California

10

San Francisco Division
IIG PROPERTIES, LLC,

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

No. C 12-06117 LB

Plaintiff,

ORDER (1) GRANTING PLAINTIFF’S
MOTION TO REMAND THE CASE
TO CONTRA COSTA COUNTY
SUPERIOR COURT AND (2)
DENYING PLAINTIFF’S REQUEST
FOR ATTORNEY’S FEES

v.
13
14

VICTOR JIMENEZ, and DOES 1-20,
INCLUSIVE

15

Defendants.
_____________________________________/

[Re: ECF No. 4]

16
17

INTRODUCTION

18

Plaintiff IIG Properties, LLC (“IIG”) filed a complaint for unlawful detainer against Defendant

19

Victor Jimenez in the Contra Costa County Superior Court on October 5, 2012. Notice of Removal,

20

ECF No. 1 at 1, ¶ 1.1 Mr. Jimenez, who is proceeding pro se, removed the action to federal court on

21

the ground of federal-question jurisdiction. Id. at 2, ¶¶ 6, 10. IIG now moves to remand the case

22

and requests an award of attorney’s fees. Motion to Remand, ECF No. 4-1 at 1. Both parties

23

consented to the undersigned’s jurisdiction. See ECF Nos. 7 & 9. For the reasons below, the court

24

GRANTS IIG’s motion to remand the action to Contra Costa County Superior Court and DENIES

25
26
27
1

28

Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
C 12-06117 LB
ORDER; REPORT AND RECOMMENDATION

1

IIG’s request for attorney’s fees and costs.2

2

STATEMENT

3

On July 7, 2004 a deed of trust was recorded in the official records of the Contra Costa

4

County Recorder naming Mr. Jimenez the trustor of the property located at 52 Baylor Lane, Pleasant

5

Hill, California (the “Property”). Complaint, ECF No. 1 at 8, ¶¶ 5-6. On an unspecified date

6

thereafter, Mr. Jimenez defaulted on his payment of the promissory note that was secured by the

7

deed. Id. at 8, ¶ 7. On August 23, 2012 IIG acquired the Property through a trustee’s sale, and a

8

Trustee’s Deed Upon Sale, Instrument No. 2012-0210302-00, was recorded in Contra Costa County.

9

Trustee’s Deed Upon Sale, ECF No. 1 at 12-14.

10

On or about September 24, 2012, IIG posted a Notice to Any Renters and a Notice to Quit on the
Property that required any tenants in possession of the Property to vacate it within three days.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Notice to Quit, ECF No. 1 at 15. Mr. Jimenez remained in possession of the Property, so on October

13

5, 2012, IIG filed a complaint in the Contra Costa County Superior Court against him, alleging a

14

single state law cause of action for unlawful detainer. In that complaint, IIG seeks immediate

15

possession of the Property, damages of $75.00 per day for each day that Mr. Jimenez continues to

16

possess the Property, and attorney’s fees and court costs. Complaint, ECF No. 1 at 9, ¶¶ 1-3.

17

On December 3, 2012, Mr. Jimenez removed the case to federal court on the ground that the

18

complaint presents federal questions. Notice of Removal, ECF No. 1 at 2, ¶¶ 6, 10. On January 2,

19

2013, IIG filed a motion asking the court to remand the action to Contra Costa County Superior

20

Court based on lack of subject-matter jurisdiction and requesting attorney’s costs and fees. Motion

21

to Remand, ECF No. 4-1 at 3-4, 6. IIG served Mr. Jimenez with the motion by mail on the same

22

day. Certificate of Service, ECF No. 4-3. Thus, Mr. Jimenez had until January 22, 2013 to file an

23

opposition. See N.D. Cal. Civ. L.R. 7-3(a) (“Any opposition to a motion must be served and filed

24

not more than 14 days after the motion is served and filed.”); see also Fed. R. Civ. P. 6(a) (“[I]f the

25

last day [of the time period] is a Saturday, Sunday, or legal holiday, the period continues to run until

26
27
2

28

Pursuant to Civil Local Rule 7–1(b), the court finds this matter suitable for determination
without oral argument and vacates the February 7, 2013 hearing.
C 12-06117 LB
ORDER; REPORT AND RECOMMENDATION

2

1

the end of the next day that is not a Saturday, Sunday, or legal holiday.”), (d) (three days added to

2

the time period if service is made by mail). That date has passed and the court has not received an

3

opposition from Mr. Jimenez.

4
5

ANALYSIS
I. FEDERAL-QUESTION JURISDICTION DOES NOT EXIST
A defendant in a state court may remove an action to federal court so long as the action could

7

have originally asserted federal-question jurisdiction.3 28 U.S.C. 1441(b). The removing defendant

8

has the burden of proving the basis for the federal court’s jurisdiction. Shizuko Nishimoto v.

9

Federman-Bachrach & Assocs., 903 F.2d 709, 712 (9th Cir. 1990). Removal jurisdiction statutes are

10

strictly construed against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941);

11

Takeda v. Northwestern Nat’l. Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985).

12
For the Northern District of California

UNITED STATES DISTRICT COURT

6

The “well-pleaded complaint” rule requires a federal question to be presented on the face of the

13

plaintiff’s complaint at the time of removal for federal-question jurisdiction to exist. Duncan v.

14

Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). A plaintiff may “by eschewing claims based on federal

15

law, choose to have the cause be heard in state court.” Caterpillar, Inc. v. Williams, 482 U.S. 386,

16

399 (1987). And an anticipated federal defense is not sufficient to confer jurisdiction. Franchise

17

Tax Bd. of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983). But a

18

plaintiff may not defeat removal by omitting necessary federal questions from his or her complaint.

19

Id. at 22.

20

Here, IIG alleges a single claim against Mr. Jimenez for unlawful detainer. See Complaint, ECF

21

No. 1 at 8. It is well established that unlawful detainer claims do not arise under federal law and,

22

without more, the court lacks federal-question jurisdiction. See, e.g., Fed. Nat’l Mortg. Assoc. v.

23

Lopez, No. C 11-00451 WHA, 2011 WL 1465678, at *1 (N.D. Cal. Apr. 15, 2011); GMAC Mortg.

24

LLC v. Rosario, No. C 11-1894 PJH, 2011 WL 1754053, at *2 (N.D. Cal. May 9, 2011); Wescom

25

Credit Union v. Dudley, No. CV 10-8203 GAF (SSx), 2010 WL 4916578, at *2 (C.D. Cal. Nov. 22,

26
27
3

28

District courts have original jurisdiction over cases that arise under the laws of the United
States. U.S. Const. art. III, § 2, cl.1.
C 12-06117 LB
ORDER; REPORT AND RECOMMENDATION

3

1

2010).

2

It also appears that Mr. Jimenez contends that federal question jurisdiction exists because IIG

3

allegedly violated 12 U.S.C. § 5520. See Notice of Removal, ECF No. 1 at 2, ¶ 9. But, as the court

4

explained above, an anticipated federal defense is not sufficient to confer jurisdiction. Franchise

5

Tax Bd., 563 U.S. 1, 10 (1983).

6

II. DIVERSITY JURISDICTION DOES NOT EXIST

7
8
9

Though Mr. Jimenez did not allege diversity jurisdiction in the notice of removal, the court will
nonetheless undertake the proper analysis.
Federal courts have original jurisdiction where the opposing parties are citizens of different

where the purported basis of jurisdiction is diversity jurisdiction, removal is not permitted where a

12
For the Northern District of California

states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). Thus, in removal cases

11
UNITED STATES DISTRICT COURT

10

defendant in the case is a citizen of the state in which the plaintiff originally brought the action (even

13

if the opposing parties are citizens of different states). See 28 U.S.C. § 1441(b).

14

First, the amount in controversy for this removal does not exceed $75,000, the amount required

15

by statute for the court to have diversity jurisdiction. 28 U.S.C. § 1332(a). In unlawful detainer

16

actions, the right to possession of the property is contested, not title to the property, and plaintiffs

17

may collect only damages that are incident to that unlawful possession. See Litton Loan Servicing,

18

L.P. v. Villegas, No. C 10-05478 PJH, 2011 WL 204322, at *2 (N.D. Cal. Jan. 21, 2011) (quoting

19

Evans v. Superior Ct., 67 Cal. App. 3d 162, 170 (1977)). IIG is requesting damages in the amount

20

of $75 per day, beginning on September 29, 2012. Complaint, ECF No. 1 at 9, ¶ 15. The amount of

21

damages at issue in this case does not come close to reaching the threshold amount.

22

Second, even assuming the threshold amount for diversity jurisdiction were satisfied, removal

23

was not proper because IIG filed suit in California, and Mr. Jimenez is a citizen of California.

24

Complaint, ECF No. 1 at 7-8, ¶ 3. 28 U.S.C. § 1441(b) prohibits removal where a defendant in the

25

case is a citizen of the state in which the plaintiff originally brought the action. Therefore, this case

26

must be remanded to state court for lack of diversity jurisdiction.

27

III. ATTORNEY’S FEES ARE NOT PROPER

28

IIG argues that it is entitled to attorney’s fees in the amount of $750 for the labor required to
C 12-06117 LB
ORDER; REPORT AND RECOMMENDATION

4

1

create and file the motion to remand because Mr. Jimenez asserts no “coherent basis for removal and

2

waited until the day before trial to file his Notice of Removal.” Motion to Remand, ECF No. 4-1 at 6

3

(emphasis in original). Under 28 U.S.C. 1447(c), courts may require a defendant to pay the “just

4

costs and any actual expenses, including attorney fees, incurred as a result of the removal.” “Absent

5

unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing

6

party lacked an objectively reasonable basis for seeking removal.” See Martin v. Franklin Capital

7

Corp., 546 U.S. 132, 136 (2005). However, awards of attorney’s fees and costs under §1447 are

8

discretionary. Id.

because the law is clear that federal courts lack subject-matter jurisdiction over unlawful detainer

11

actions. Even so, awarding attorney’s fees to IIG’s attorneys would be inequitable considering Mr.

12
For the Northern District of California

Mr. Jimenez lacked objectively reasonable grounds for removing this case to federal court

10

UNITED STATES DISTRICT COURT

9

Jimenez is a party who faces losing his home and is proceeding pro se in defending this action.

13

Under these circumstances, awarding IIG $750 in attorney’s fees would not serve the interests of

14

justice. Deutsche Bank Nat. Trust Co. v. Llopis, No. C 11–03037 WHA, 2011 WL 3502486, at *2

15

(N.D. Cal. Aug. 10, 2011) (denying a $675 request for attorney’s fees in an improperly removed

16

unlawful detainer case). Accordingly, the court denies IIG’s request for costs and attorney’s fees.

17
18

CONCLUSION
For these reasons, the court GRANTS IIG’s motion to remand this action to Contra Costa

19

County Superior Court and DENIES IIG’s request for attorney’s fees. The Clerk of the Court shall

20

close the file.

21

This disposes of ECF No. 4.

22

IT IS SO ORDERED.

23

Dated: January 24, 2013
_____________________________
LAUREL BEELER
United States Magistrate Judge

24
25
26
27
28
C 12-06117 LB
ORDER; REPORT AND RECOMMENDATION

5