Brian Cross v. Kenneth Whelan

[5] J S -6 [8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [11] BRIAN CROSS, Case No. 8:21-CV-01083 JLS (KESx) [12] Plaintiff, 13 ORDER REMANDING CASE TO v. 14 STATE COURT KENNETH WHELAN and KATHY 15 WHELAN, 16 Defendants. [18] I. [19] BACKGROUND [20] On April 14, 2021, Brian Cross (“Plaintiff”) brought an action for unlawful [21] detainer against Kenneth and Kathy Whelan (“Defendants”) in Superior Court of [22] California, County of Orange (case number 30-3021-01106267-CU-UD-CJC). [23] (Dkt. 1 at 6–9.) The complaint alleges that Defendants are in unlawful possession [24] of the premises located at 118 19th Street in Huntington Beach, California (the [25] “Property”) due to their failure to pay rent of $5,500/month since October 2020. [26] (Id. at 18.) On June 22, 2021, Defendants filed a Notice of Removal removing this [27] unlawful detainer to federal court. (Id. at 1–5.) The Court sua sponte REMANDS [28] 1 this action to the Superior Court of California, County of Orange, for lack of 2 subject matter jurisdiction, as set forth below. 3 II. 4 DISCUSSION 5 “The right of removal is entirely a creature of statute and a suit commenced 6 in a state court must remain there until cause is shown for its transfer under some 7 act of Congress.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) 8 (citation omitted). Where Congress has acted to create a right of removal, those 9 statutes are strictly construed against removal jurisdiction. Id.; accord Nevada v. 10 Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012). 11 Unless otherwise expressly provided by Congress, a defendant may remove 12 “any civil action brought in a State court of which the district courts of the United 13 States have original jurisdiction.” 28 U.S.C. § 1441 (a); accord Dennis v. Hart, 724 14 F.3d 1249, 1252 (9th Cir. 2013). The removing defendant bears the burden of 15 establishing federal jurisdiction. Abrego Abrego v. The Dow Chem. Co., 443 F.3d 16 676, 682 (9th Cir. 2006). “Under the plain terms of § 1441(a), in order properly to 17 remove [an] action pursuant to that provision, [the removing defendant] must 18 demonstrate that original subject-matter jurisdiction lies in the federal courts.” 19 Syngenta Crop Prot., 537 U.S. at 33 . Failure to do so requires that the case be 20 remanded, as “[s]ubject matter jurisdiction may not be waived, and … the district 21 court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n v. 22 Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). “If at any time before 23 final judgment it appears that the district court lacks subject matter jurisdiction, the 24 case shall be remanded.” 28 U.S.C. § 1447 (c). “It is elementary that the subject 25 matter jurisdiction of the district court is not a waivable matter and may be raised at 26 anytime by one of the parties, by motion or in the responsive pleadings, or sua 27 sponte by the trial or reviewing court.” Emrich v. Touche Ross & Co., 846 F.2d 28 1 1190, 1194 n.2 (9th Cir. 1988); accord Carolina Cas. Ins. Co. v. Team Equip., Inc., [2] 741 F.3d 1082, 1086 (9th Cir. 2014). 3 A. Federal Question Jurisdiction. 4 The underlying action is an unlawful detainer proceeding, arising under and 5 governed by the laws of the State of California. The state-court complaint does not 6 include any claim “arising under the Constitution, laws, or treaties of the United 7 States.” 28 U.S.C. § 1331 . Nevertheless, Defendants contend that they are 8 protected by the CARES Act from Plaintiff’s unlawful detainer action. (Dkt. 1 at 9 1–5.) “On March 27, 2020, the federal government enacted the Coronavirus Aid, 10 Relief, and Economic Security Act (‘CARES Act’).” Saso v. Genho, No. 21-CV11 02030, 2021 WL 1530215 , at *2, 2021 U.S. Dist. LEXIS 78588 , at *5 (N.D. Cal. 12 Apr. 19, 2021) (citation omitted). “The CARES Act provided numerous forms of 13 relief, including a prohibition against new eviction cases filed by housing providers 14 who participate in certain federal housing rental programs on the basis of non15 payment of rent.” Id., 2021 U.S. Dist. LEXIS 78588 , at *5 (citation omitted). 16 However, federal defenses or federal counterclaims do not provide a basis to 17 remove an action that does not otherwise establish federal jurisdiction. “[T]he 18 existence of federal jurisdiction depends solely on the plaintiff’s claims for relief 19 and not on anticipated defenses to those claims.” ARCO Envtl. Remediation, 20 L.L.C. v. Dept. of Health and Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000); 21 accord City of Oakland v. BP PLC, 960 F.3d 570 , 577 (9th Cir.), opinion amended 22 and superseded on other grounds on denial of reh’g, 969 F.3d 895 (9th Cir. 2020), 23 and cert. denied sub nom. Chevron Corp. v. Oakland, CA, No. 20-1089, 2021 WL 24 2405350, 2021 U.S. LEXIS 3100 (U.S. June 14, 2021). Indeed, “it is now settled 25 law that a case may not be removed to federal court on the basis of a federal 26 defense, including the defense of pre-emption, even if the defense is anticipated in 27 the plaintiff’s complaint, and even if both parties concede that the federal defense is 28 the only question truly at issue.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 1 (1987); see Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994), as amended (Sept. 7, 2 1994) (“neither an affirmative defense based on federal law, nor one based on 3 federal preemption renders an action brought in state court removable”) (citations 4 omitted). 5 Here, to the extent Defendants are raising the CARES Act as a defense to the 6 unlawful detainer action, “a case may not be removed to federal court on the basis 7 of a federal defense.” Caterpillar, 482 U.S. at 393 . Thus, there is no basis for 8 federal question jurisdiction. “This conclusion is consistent with the decisions of 9 numerous other district courts within the Ninth Circuit that have remanded 10 unlawful detainer actions for lack of federal jurisdiction despite the defendant’s 11 assertion of rights under the CARES Act ….” Saso, 2021 WL 1530215 , at *2, 12 2021 U.S. Dist. LEXIS, at *6 (collecting cases). 13 B. Diversity Jurisdiction. 14 There is also no basis for diversity jurisdiction. Every defendant is not 15 alleged to be diverse from every plaintiff. 28 U.S.C. § 1332 (a). Defendants do not 16 purport to remove this action based on diversity. (Cf. Dkt. 1 at 2 [“Plaintiff has 17 actually filed a Federal Question action in State Court, for which the State Court 18 action is removed under 28 U.S.C. § 1441 .”].). 19 C. Jurisdiction Under 28 U.S.C. § 1443 . 20 Section 1443(1) permits a defendant in state cases to remove the proceedings 21 to the federal district courts when a defendant is “denied or cannot enforce in the 22 courts of such State a right under any law providing for the equal civil rights of 23 citizens in the United States.” In order to successfully remove, the defendant must 24 satisfy a two-prong test: (1) the rights allegedly denied must arise under a federal 25 law providing for specific civil rights stated in terms of racial equality; and (2) the 26 defendant must be denied or unable to enforce the rights in state courts. Johnson v. 27 Mississippi, 421 U.S. 213, 219 (1975); accord ASAP Copy & Print v. Canon Bus. 28 Sols., Inc., 643 F. App’x 650, 652 (9th Cir. 2016). Under the first prong, 1 constitutional or statutory provisions of general applicability or under statues not 2 protecting against racial discrimination will not suffice. Johnson, 421 U.S. at 219 . 3 Under the second prong, a defendant’s federal rights are left to the state courts 4 except in rare situations where it can be clearly predicted that those rights will 5 inevitably be denied by the very act of bringing the defendant to trial in state court. [6] Id. at 219–20. 7 Defendants do not assert § 1443 in support of removal. Nor do they identify 8 any specific California statute or constitutional provision that commands the state 9 courts to ignore their federal rights. See Patel v. Del Taco, Inc., 446 F.3d 996 , 998 10 (9th Cir. 2006) (A petition for removal “must assert that the state courts will not 11 enforce [a specified federal] right, and that allegation must be supported by 12 reference to a state statute or a constitutional provision that purports to command 13 the state courts to ignore the federal rights.”) (citation omitted); HSBC Bank USA 14 v. Kubik, No. 2:13-1692 SVW-SH, 2013 WL 1694670 , at *3, 2013 U.S. Dist. 15 LEXIS 56023 , at *7 (C.D. Cal.Apr.16, 2013) (“Defendant Kubik does not, and 16 cannot, identify any California state law or constitutional provision that commands 17 state courts to ignore an amendment to the U.S. Constitution.”). Consequently, 18 removal is not proper under § 1443(1). [28] l III. 2 CONCLUSION 3 This Court does not have subject matter jurisdiction over this case. IT IS 4 | THEREFORE ORDERED that this matter be REMANDED to the Superior Court 5 || of the State of California for the County of Orange. [6] 7 || DATED: June 24, 2021 JOSEPHINE L. STATON 8 JOSEPHINE L. STATON 9 UNITED STATES DISTRICT JUDGE 10 || Presented by: i VW, ceuns 6. Scot 12 || KAREN E. SCOTT 13 || UNITED STATES MAGISTRATE JUDGE