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1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANNA SIGALA, deceased, by and through her Case No.: 2:22-cv-02003-MEMF(MARx) personal legal representative and successor in 12 interest, Anthony Sigala; Anthony Sigala, individually, ORDER GRANTING PLAINTIFFS’ 13

MOTION TO REMAND [ECF NOS. 13, 15,

Plaintiffs, 14 16] AND DENYING AS MOOT v. DEFENDANTS’ MOTION TO DISMISS 15 [ECF NOS. 12, 14, 17]

16 17 OXNARD MANOR, LP, et al., 18 Defendants. 19 20

21 Before the Court are the following motions: (1) the Motion to Remand (ECF No. 13) filed by 22 Plaintiff Anthony Sigala, individually, and as successor in interest of Anna Sigala; and (2) the 23 Motion to Dismiss (ECF No. 12) filed by Defendants Oxnard Manor, LP, doing business as Oxnard 24 Manor Healthcare Center, Bertie Krieger, Shlomo Rechnitz, Oxnard Healthcare and Wellness 25 Centre, LP, and Does 1 to 100. For the reasons stated herein, the Court GRANTS the Motion to 26 Remand. On May 23, 2022, the Court deemed this matter appropriate for resolution without oral 27 argument and vacated the hearing set for May 26, 2022. See ECF No. 19; C.D. Cal. L.R. 7-15. 28 Accordingly, the Motion to Dismiss is DENIED as MOOT.

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1 I. Factual Background1 2 Anthony Sigala’s elderly mother, Anna Sigala, was a resident of Oxnard Manor Nursing 3 Home (“Oxnard” or the “Facility”), a California licensed nursing facility. She died on January 3, 4 2021from COVID-19. (“Compl.” or “Complaint”), ECF No. 1, Ex. A ¶¶ 1, 44–45. Her death was the 5 result of Oxnard’s negligent, willful and/or reckless conduct in the care rendered to Anna Sigala 6 specifically in the context of the COVID-19 pandemic. Notice of Removal (“Notice”), ECF No. 1 ¶ 7 4. 8 II. Procedural Background 9 On December 29, 2021, Anthony Sigala filed this action against Defendants Oxnard Manor, 10 LP, doing business as Oxnard Manor Healthcare Center, Bertie Krieger, Shlomo Rechnitz, Oxnard 11 Healthcare and Wellness Centre, LP, and Does 1 to 100 (collectively, the “Oxnard Manor 12 Defendants”) in Ventura County Superior Court on behalf of himself and as successor in interest to 13 Anna Sigala (collectively, the “Sigalas”) alleging the following state-law claims: (1) elder abuse and 14 neglect, CAL. WELF. & INST. CODE § 15600, et seq.; (2) violation of patient rights, CAL. HEALTH & 15 SAFETY CODE § 1430(b); (3) negligence/willful misconduct under California state law; and (4) 16 wrongful death under California state law. See Notice of Removal (“Notice”), ECF No. 1 ¶ 1; 17 Compl. ¶¶ 46–84; Remand Mot. at 7. Sigala seeks to recover general, special, punitive, and 18 exemplary damages as well as attorneys’ fees and interest, and costs of suit. Compl. ¶ 24. 19 On March 25, 2022, the Oxnard Manor Defendants removed this action to this Court 20 pursuant to 28 U.S.C. § 1442. See generally Notice. In their Notice of Removal, the Oxnard Manor 21 Defendants assert that the Court has jurisdiction over this action under 28 U.S.C. § 1331 on three 22 grounds: federal officer jurisdiction, complete preemption of state law, and the presence of an 23 embedded federal question. See generally Notice ¶¶ 9–53. 24 25 26 27 1 Unless otherwise indicated, the following facts are derived from the Complaint. (“Complaint” or “Compl.”) 28 ECF No. 1, Ex. A.

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1 On April 1, 2022, the Oxnard Manor Defendants filed a Motion to Dismiss pursuant to 2 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 12. This motion was fully briefed 3 as of May 12, 2022. ECF Nos. 14 (“MTD Opp’n”), 17 (“MTD Reply”). 4 On April 22, 2022, Sigala filed a Motion to Remand. (“Remand Mot.”), ECF No. 13. The 5 Motion was fully briefed as of May 12, 2022. See ECF Nos. 15 (“Remand Opp’n”), 16 (“Remand 6 Reply”).

MOTION TO REMAND

7 8 I. Legal Standard 9 The “[f]ederal courts are courts of limited jurisdiction.” Corral v. Select Portfolio Servicing, Inc., 10 878 F.3d 770, 773 (9th Cir. 2017) (internal quotation marks omitted). Civil actions may be removed 11 from state court if the federal court has original jurisdiction. See Syngenta Crop Prot., Inc. v. 12 Henson, 537 U.S. 28, 33 (2002) (“Under the plain terms of § 1441(a), in order properly to remove 13 [an] action pursuant to that provision, [the party seeking removal] must demonstrate that . . . original 14 subject-matter jurisdiction must lie in the federal courts.”). Courts resolve all ambiguities “in favor 15 of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing 16 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 17 Removal of a state action may be based on either diversity or federal question jurisdiction. 18 City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997); Caterpillar Inc. v. Williams, 482 19 U.S. 386, 392 (1987). The defendant seeking removal of an action from state court bears the burden 20 of establishing grounds for federal jurisdiction. Geographic Expeditions, Inc. v. Est. of Lhotka, 599 21 F.3d 1102, 1106–07 (9th Cir. 2010). 22 To determine whether an action involves a federal question, “a [district] court applies the 23 well-pleaded complaint rule.” Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 24 2009) (internal citations and quotations omitted). This rule provides that federal jurisdiction only 25 exists when a “federal question is presented on the fact of the plaintiff’s properly pleaded 26 complaint.” Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th 27 Cir. 2014) (internal quotations omitted). As a result, a case may not be removed to federal court on 28 the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated

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1 in the plaintiff's complaint, and even if both parties concede that the federal defense is the only 2 question truly at issue.’” Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)). 3 Therefore, a “plaintiff can generally ‘avoid federal jurisdiction by exclusive reliance on state law.’” 4 City of Oakland v. BP PLC, 969 F.3d 895, 904 (9th Cir. 2020) (quoting Caterpillar, 482 U.S. at 5 392). 6 II. Discussion 7 The Oxnard Manor Defendants assert three grounds for removal: (1) federal officer 8 jurisdiction, (2) complete preemption of state law, and (3) the presence of an embedded federal 9 question. See generally Notice ¶¶ 9–53. Sigala seeks to remand for lack of subject matter 10 jurisdiction. Remand Mot. at 1. 11 A. Saldana Controls the Question Presented by Sigala’s Motion to Remand 12 This case presents nearly identical issues as Saldana v. Glenhaven Healthcare, LLC, a recent 13 Ninth Circuit case analyzing whether the PREP Act qualifies as a complete preemption statute. 27 14 F.4th 679 (9th Cir. 2022). The Saldana facts are strikingly similar to those presented here: relatives 15 of a deceased resident of a skilled nursing facility sued the facility in California state court for elder 16 abuse, willful misconduct, custodial negligence, and wrongful death. Id. at 683. The facility removed 17 the case to federal court arguing that the district court had three grounds for federal jurisdiction: 18 federal officer removal, complete preemption of state law, and the presence of an embedded federal 19 question. Id. Upon review of the PREP Act, the Ninth Circuit held that as the Act is not a complete 20 preemption statute, the facility was not entitled to removal. See id. at 683–89. 21 Indeed, several post-Saldana Ninth Circuit district court cases have similarly held that the 22 PREP Act is not a complete preemption statute. See, e.g., Branch v. Lilac Holdings, LLC, No. 21-cv- 23 00605-BAS-MDD, 2022 WL 1184358 (S.D. Cal. Apr. 21, 2022); Aguilera-Cubitt v. AG Seal Beach, 24 LLC, No. SACV 22-249 JVS, 2022 WL 1171028 (C.D. Cal. Apr. 20, 2022); Kovacs v. MEK 25 Norwood Pines, LLC, No. 2:22-cv-00120 WBS AC, 2022 WL 1129269 (E.D. Cal. Apr. 15, 2022).2 26 27 2 Additionally, of twenty-five Ninth Circuit district court opinions analyzing the complete preemptive power of the PREP Act, twenty-four have similarly held that the PREP Act does not completely preempt state law 28

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1 The Oxnard Manor Defendants argue that Saldana is not binding on this Court because the 2 Oxnard Manor Defendants have “the understanding that [the] defendant in Saldana intends to file a 3 petition for writ of certiorari.” Remand Opp’n at 11 n.4; id. at 19 n.11. This argument is unavailing. 4 The Ninth Circuit has “unequivocally stated that a published decision constitutes binding authority 5 and must be followed unless and until it is overruled by a body competent to do so.” In re Zermeno- 6 Gomez, 868 F.3d 1048, 1053 (9th Cir. 2017). It is well-established that “once a federal circuit court 7 issues a decision, the district courts within that circuit are bound to follow it and have no authority to 8 await a ruling by the Supreme Court before applying the circuit court’s decision as binding 9 authority.” Yong v. INS, 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (emphasis added). For the Court to 10 do otherwise would be “clear error.” In re Zermeno-Gomez, 868 F.3d at 1053. 11 B. The Oxnard Manor Defendants Do Not Qualify for Federal Officer Jurisdiction 12 The Oxnard Manor Defendants argue that as the Facility took “steps to prevent the spread of 13 COVID-19” and did so “in compliance” with directives from federal agencies, this case is also 14 removable under federal officer jurisdiction, 28 U.S.C. §1442(a)(1). Notice ¶¶ 44–53; Remand 15 Opp’n at 15. Sigala counters by arguing that the Oxnard Manor Defendants have failed to meet the 16 burden of proving the basis for jurisdiction as it does “not draw a connection” between their actions 17 and “the explicit directions of any federal officer’s direct orders or comprehensive and detailed 18 regulations” as is required by the statute. Remand Mot. at 18 (internal quotations omitted). 19 Federal officer jurisdiction, also known as federal officer removal, is governed by 28 U.S.C. 20 § 1442(a)(1). The statute provides that an action commenced in state court may be removed to 21 federal court when it is “against or directed to . . . [t]he United States or any agency thereof or any 22 officer (or any person acting under that officer) of the United States or of any agency thereof, in an 23 official or individual capacity, for or relating to any act under color of such office.” 28 U.S.C. § 24

25 claims. See Remand Mot. 3–4 (collecting cases). The Oxnard Defendants urge the Court to rely on the lone 26 outlier, Garcia v. Welltower OpCo Grp., a district court case that predates Saldana. 522 F.Supp.3d 734 (C.D. Cal. 2021), abrogation recognized No. 2:22-cv-00179-SVW-PLA, 2022 WL 845349 (C.D. Cal. Mar. 22, 27 2022). However, as discussed herein, Saldana clearly abrogates Garcia. Accordingly, the Court finds no reason to depart from the controlling authority and does not consider Garcia in its analysis. 28

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1 1442(a)(1). The statute’s purpose is to “protect the Federal Government from the interference with 2 its operations that would ensue were a State able, for example, to arrest and bring to trial in a State 3 court for an alleged offense against the law of the State, officers and agents of the Government 4 acting within the scope of their authority.” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 150 5 (2007) (citations and internal quotation marks omitted). And while the statute is to be “liberally 6 construed,” the statute’s “language, context, history, and purposes” may create limits in its 7 application. Id. at 147. 8 To remove a case to federal court under this statute, the defendant bears the burden of 9 meeting the following three-part test: “(a) [that the removing party] is a ‘person’ within the meaning 10 of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's 11 directions, and plaintiff’s claims; and (c) it can assert a ‘colorable federal defense.’” Fidelitad, Inc. v. 12 Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). To establish a “causal nexus,” the Oxnard Manor 13 Defendants must establish that it was “acting under” the direction of a federal officer and that those 14 actions are “causally connected” to Sigala’s claims. See Cnty of San Mateo v. Chevron Corp., 960 15 F.3d 586, 598 (9th Cir. 2020), vacated on other grounds, 141 S.Ct. 2666 (2021). 16 The parties do not appear to dispute that the Oxnard Manor Defendants qualify as a person 17 under the meaning of the statute. Instead, the bulk of their disagreement rests on whether the Facility 18 was acting “under the direction of a federal officer.” See Remand Mot. at 17–18; Remand Opp’n at 19 14–20; Remand Reply at 9–10. 20 Watson is the controlling case. 551 U.S. 142. There, the Supreme Court held that 21 [A] highly regulated firm cannot find a statutory basis for removal in the fact of federal 22 regulation alone. A private firm’s compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase 23 “acting under” a federal “official.” And it is so even if the regulation is highly detailed and even if the private firm’s activities are highly supervised and monitored. A contrary 24 determination would expand the scope of the statue considerably, potentially bringing 25 within its scope state-court actions filed against private firms in many highly regulated industries. 26 Id. at 153. 27 The Oxnard Manor Defendants argue that Watson’s restrictions do not apply here because 28 Watson requires that a private firm, at a minimum “involve an effort to assist, or to help carry out,

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1 the duties or tasks of the federal superior.” Remand Opp’n at 18 (citing id. at 151). Again, the 2 Oxnard Manor Defendants point to the “explicit guidance” and “high level of control” exercised by 3 the Centers for Medicare and Medicaid Services (“CMS”), the Center for Disease Control (“CDC”), 4 and the California Department of Public Health through directives and other instructions. Id. at 16– 5 18. The Oxnard Manor Defendants further contend that they were acting under the direction of a 6 federal officer because the federal government designated skilled nursing facilities like Oxnard as 7 “critical infrastructure” during the pandemic. Id. at 16. These decisions include: ordering facilities to 8 restrict visitation, canceling communal dining, implementing active screening of staff for fever and 9 respiratory symptoms, limiting access points, amending policies regarding interactions with vendors, 10 and amending procedures around end-of-life interactions with family members. Id. The Oxnard 11 Manor Defendants argue that, taken together, these “detailed clinical directives and instructions” 12 indicate that the federal government enlisted the Oxnard Manor Defendants “to carry out the duty of 13 the government” within the meaning of the statue. Id. This, they argue, is sufficient to meet Watson’s 14 minimum requirement of an “effort to assist, or to help carry out, the duties or tasks of the federal 15 superior.” Id. at 18 (citing Watson, 551 U.S. at 151). 16 However, this argument is unavailing. The Oxnard Manor Defendants concede that the bulk 17 of authority from Ninth Circuit district courts and the Ninth Circuit itself indicate that federal officer 18 removal is improper on these facts. Id. at 19. But the Oxnard Manor Defendants urge the Court to 19 look to out of circuit authority, arguing that none of the Ninth Circuit cases, Saldana included, are 20 binding on this Court. Id. As discussed above, Saldana is indeed binding. 21 Thus, applying Saldana’s analysis of Watson, the Court finds the presented evidence 22 insufficient. Just as the Ninth Circuit concluded in Saldana, “[a]ll that [defendant] has demonstrated 23 is that it operated as a private entity subject to government regulations, and that during the COVID- 24 19 pandemic it received additional regulations and recommendations from federal agencies. Thus, 25 [defendant] was not ‘acting under’ a federal officer or agency as contemplated by the federal officer 26 removal statute.” Saldana, 27 F.4th at 686; see also id. at 684 (“[S]imply complying with a law or 27 regulation is not enough to bring a private person within the scope of the statute.” (internal 28 quotations omitted)).

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1 As the Oxnard Manor Defendants have not met their burden to establish the “nexus,” the 2 Court does not analyze the remaining elements of the federal officer removal statute. Accordingly, 3 federal officer removal is improper. 4 C. The PREP Act Does Not Confer Complete Preemption 5 Sigala argues that none of his claims implicate federal law or “arise under federal law, 6 because they raise no dispute or controversy regarding the validity, construction or effect of any 7 federal law.” Remand Mot. at 7–8. The Oxnard Manor Defendants, on the other hand, argue that 8 removal is proper because Sigala’s claims are completely preempted by the Public Readiness and 9 Emergency Preparedness (“PREP”) Act, 42 U.S.C. §§ 247d-6d, 257d-6e. See Notice ¶¶ 13–43; 10 Remand Opp’n at 6–14. 11 Complete preemption is an “independent corollary to the well-pleaded complaint rule known 12 as the complete pre-emption doctrine.” Retail Prop., 768 F.3d at 947 (internal quotation marks 13 omitted) (quoting Caterpillar, 482 U.S. at 393). The doctrine “posits that there are some federal 14 statutes that have such ‘extraordinary pre-emptive power’ that they ‘convert[ ] an ordinary state 15 common law complaint into one stating a federal claim for purposes of the well-pleaded complaint 16 rule.’” Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). “‘When a plaintiff raises 17 such a completely preempted state-law claim in his complaint, a court is obligated to construe the 18 complaint as raising a federal claim and therefore arising under federal law.’” Id. (quoting Sullivan v. 19 Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005)). Like the well-pleaded complaint rule, 20 complete preemption is “applicable to removal jurisdiction only; it is not a doctrine of defensive 21 preemption.” Id. 22 The complete preemption doctrine, however, rarely applies. It only arises in “extraordinary 23 situations” where Congress has “manifested an intent to convert state-law claims into federal- 24 question claims.” Holman v. Laulo–Rowe Agency, 994 F.2d 666, 668 (9th Cir.1993) (citations 25 omitted). To date, the Supreme Court has only identified three sufficiently “extraordinary” statutes: 26 (1) Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185; (2) Section 502(a) of the 27 Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a); and (3) Sections 85 and 86 28

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1 of the National Bank Act, 12 U.S.C. §§ 85, 86. City of Oakland, 969 F.3d at 905–06. Accordingly, 2 the Ninth Circuit applies a two-step test to determine whether complete preemption “for the purposes 3 of federal jurisdiction under [section] 1331 exists”: (1) “when Congress intended to displace a state- 4 law cause of action;” and (2) “provided a substitute cause of action” (the “City of Oakland Test”). Id. 5 at 905 (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)). 6 i. The PREP Act 7 Before the Court can determine whether complete preemption applies in this case, a brief 8 summary of the PREP Act is necessary. Passed in 2005, the Public Readiness and Emergency 9 Preparedness Act (the “PREP Act” or “Act”), states that “a covered person shall be immune from 10 suit and liability under Federal and State law with respect to all claims for loss caused by, arising out 11 of, relating to, or resulting from the administration to or the use by an individual of a covered 12 countermeasure.” 42 U.S.C. § 247d-6d(a)(1). “Covered persons” is defined, in part, as “a program 13 planner or qualified person with respect to the administration or use of [a] covered countermeasure.” 14 42 U.S.C. § 247d-6d(i)(2). “Covered countermeasures” include “qualified pandemic or epidemic 15 product,” drugs, biological products, or devices. Id. §§ 247d-6d(i)(1)(A)–(D). 16 There is, however, an exception to the Act’s immunity. Section 247d-6(d)(1) provides that 17 there is an “exclusive Federal cause of action against a covered person for death or serious physical 18 injury proximately caused by willful misconduct” of a covered person.” Id. § 247d-6(d)(1). Such an 19 action may only be “filed and maintained . . . in the United States District Court for the District of 20 Columbia.” Id. 21 The Act is invoked when the Secretary of Health and Human Services “makes a 22 determination that a disease or other health condition or other threat to health constitutes a public 23 health emergency, or that there is a credible risk that the disease, condition, or threat may in the 24 future constitute such an emergency.” Id. § 247d-6d(b)(1). “The Secretary controls the scope of 25 immunity through the declaration and amendments, within the confines of the PREP Act.” Saldana, 26 27 F.4th at 687 (citing Maglioli v. All. HC Holdings, LLC, 16 F.4th 393, 401 (3d Cir. 2021)). 27 Further, the Act includes a Covered Countermeasure Process Fund which exists to compensate 28

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1 “eligible individuals for covered injuries directly caused by the administration or use of a covered 2 countermeasure pursuant to such declaration.” Id. § 247d-6e(a). 3 Where applicable, the PREP Act preempts state laws that create different standards regarding 4 covered countermeasures. States and localities may not create or enforce legal requirements that 5 deviate from the Act’s provisions or relate to the use or administration of any of the covered 6 countermeasures. 42 U.S.C. § 247d-6d(b)(8). 7 On March 17, 2020, the Secretary issued a declaration for the current COVID-19 pandemic. 8 See generally Declaration Under the Public Readiness and Emergency Preparedness Act for Medical 9 Countermeasures Against COVID-19 issued March 17, 2020 (“March 17, 2020 Declaration”), ECF 10 No. 13-1, Ex. 2. The March 17, 2020 Declaration “provided immunity for covered persons for the 11 use of covered measures, including ‘any antiviral, any other drug, any biologic, any diagnostic, any 12 other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19.” Saldana, 13 27 F.4th at 687. Several amendments have been issued since. See generally Advisory Opinion on the 14 Public Readiness and Emergency Preparedness Act and the March 20, 2020 Declaration Under the 15 Act (“March 10, 2020 Advisory Opinion”), ECF No. 13-5, Ex. 3. 16 ii. The Plain Meaning of the PREP Act Does Not Imply Preemption 17 Here, Sigala argues that the plain meaning of the Act precludes preemption as the “language 18 of the Act denotes action taken, while the Plaintiffs’ Complaint pleads Defendants’ inaction (i.e., 19 failure to sequester either infected employees or residents away from uninfected residents, failure to 20 protect residents.).” Remand Mot. at 9. The Oxnard Manor Defendants provide a different 21 interpretation of the Act’s plain language contending that, when taken together with the Secretary’s 22 Declarations and Advisory Opinions, it supports “a finding that the PREP Act completely preempts 23 Plaintiffs’ claims.” Remand Opp’n at 12–13. 24 In Saldana, the Ninth Circuit held that the PREP Act failed to satisfy the City of Oakland 25 Test. 27 F.4th at 687–88. Under the first prong, looking to the text of the statute, the Ninth Circuit 26 held that Congress only intended a federal claim “for willful misconduct and not claims for 27 negligence and recklessness.” Id. at 688 (citing 42 U.S.C. § 247d-6d(c)(1)). Under the second prong, 28 the Ninth Circuit found that administrative compensation provided by the Covered Compensation

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1 fund does not qualify as a substitute cause of action. Id. As such, the Ninth Circuit held that under 2 City of Oakland, “the PREP Act is not a complete preemption statute.” Id. 3 Moreover, the advisory opinions that the Oxnard Manor Defendants highlight to support their 4 argument that the PREP Act is a complete preemption statute do not support the defendants’ 5 position. The Oxnard Manor Defendants direct the Court to the Department of Health and Human 6 Services’ (“HHS”) Advisory Opinion 21-01 (“AO 21-01”), which states that the PREP Act is a 7 complete preemption statute. Remand Opp’n at 20. However, the Ninth Circuit treats complete 8 preemption as a “jurisdictional rather than a preemption doctrine.” Dennis v. Hart, 724 F.3d 1249, 9 1254 (9th Cir. 2013). Accordingly, the Court’s analysis does not consider questions of preemption. 10 Moreover, an agency’s opinion on federal court jurisdiction is not entitled to Chevron deference. See 11 Saldana, 27 F.4th at 687 (citing Dandino, Inc. v. U.S. Dep’t of Transp., 729 F.3d 917, 920 n.1 (9th 12 Cir. 2013)). Thus, AO 21-01 and similar advisory opinions are not controlling on this question. iii. Preemption of a Single Cause of Action Is Not Sufficient to Preempt All of Sigala’s 13 State Law Claims. 14 The Oxnard Manor Defendants further argue that because the Act explicitly preempts willful 15 misconduct claims, the Court should find that the entirety of Sigala’s claims are preempted. Remand 16 Opp’n at 10. But as “finding that one claim may be preempted is different than finding that the 17 ‘federal statutory scheme is so comprehensive that is entirely supplants state law causes of action,’” 18 this argument also fails. Saldana, 27 F.4th at 688 (citing Retail Prop. Tri., 768 F.3d at 947). 19 Accordingly, the Court holds that the PREP Act does not completely preempt Sigala’s state 20 law claims. 21 D. As Sigala’s Claims Do Not Contain Embedded Federal Issues, the Grable Doctrine Does Not Confer Federal Jurisdiction 22 The Oxnard Manor Defendants further argue that federal question jurisdiction exists because 23 various elements of the PREP Act are embedded in Sigala’s state-law claims. Remand Opp’n at 21. 24 Sigala argues that because he only plead four state-law claims, his claims “raise no dispute or 25 controversy regarding the validity, construction or effect of any federal law.” Remand Reply at 8. 26 The Oxnard Manor Defendants invoke Grable & Sons Metal Prods. v. Darue Eng’g. & 27 Mf’g., where the Supreme Court held that “in certain cases federal-question jurisdiction will lie over 28

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1 state-law claims that implicate significant federal issues.” 545 U.S. 308, 312 (2005); Notice at 10– 2 11; Remand Opp’n at 20–21. 3 Grable is interpreted in accordance with the “well pleaded complaint rule.” See Cal. Shock 4 Trauma Air Rescue v. State Comp. Ins. Fund, 636 F.3d 538, 542 (9th Cir. 2011) (“[A] state-law 5 claim will present a justiciable federal question only if it satisfies both the well-pleaded complaint 6 rule and passes the ‘implicate[s] significant federal issues’ test.”) (quoting Grable, 545 U.S. at 312). 7 Grable applies “if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and 8 (4) capable of resolution in federal court without disrupting the federal state balance approved by 9 Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). 10 The Oxnard Manor Defendants argue that Grable applies for two reasons. First, they contend 11 that the PREP Act 12 (1) creates an exclusive federal cause of action for injuries caused by willful 13 misconduct; (2) establishes a compensation fund for injures directly caused by the administration or use of covered countermeasures; (3) provides broad immunity for 14 loss relating to the administration or use of covered countermeasures; and (4) preempts state laws that create different standards regarding [the] covered PREP Act must be 15 read together and not in isolation in deciding whether there are substantial embedded 16 federal issues. 17 Remand Opp’n at 21. Second, the Oxnard Manor Defendants argue that HHS declarations and 18 advisory opinions issued by the Office of General Counsel, including AO-21-01, explicitly invoke 19 Grable and confirm that PREP Act requires that Sigala’s claims must be brought in federal court. 20 See id. at 21. 21 Both arguments fail. First, as provided by the well-pleaded complaint rule, Grable only 22 applies to claims specifically alleged by the plaintiff, not to federal issues raised as a defense. See 23 Cal. Shock, 636 F.3d at 542. Here, as already stated, the Oxnard Manor Defendants raise the PREP 24 Act as a defense. Sigala only alleges state law claims which are not preempted by the PREP Act.3 25

26 3 The Oxnard Defendants point to the fact that the PREP Act preempts Sigala’s willful misconduct claim as 27 evidence that Sigala placed his claims “squarely and exclusively in the United States District Court for the District of Columbia.” Opp’n at 21. However, as previously discussed, preemption of one claim is not 28

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1 Second, as previously discussed, the Ninth Circuit has held that agency opinions “on federal court 2 jurisdiction [are] not entitled to Chevron deference.” Saldana, 24 F.4th at 688 (citing Dandina, 729 3 F.3d at 920 n.1) (specifically discussing AO-21-01’s lack of persuasive value). 4 Accordingly, the Court finds that Sigala’s claims do not raise an embedded federal question. 5

CONCLUSION

6 7 For the foregoing reasons, Sigala’s Motion to Remand is GRANTED. Accordingly, the 8 Oxnard Manor Defendants’ Motion to Dismiss is DENIED as MOOT. This case is remanded to the 9 California Superior Court for Ventura County. 10 11 IT IS SO ORDERED. 12 13 Dated: June 27, 2022 ___________________________________ 14 MAAME EWUSI-MENSAH FRIMPONG 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 sufficient to preempt all claims. See Saldana, 27 F.4th at 688 (citing Retail Prop. Tri., 768 F.3d at 947). 28 Accordingly, this argument is unpersuasive. 13