Case 5:22-cv-00650-SPG-SP Document 24 Filed 08/04/22 Page 1 of 8 Page ID #:281

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 22-cv-00650-SPG-SP 11 THE TAMARISK RD. TRUST UDT

12 8/19/2020, PROPER T VIEW INC, AS ORDER GRANTING MOTION TO

REMAND [ECF NO. 10]

13 TRUSTEE,

14 Plaintiff,

15 v.

16 MICHAEL J. PRIETO, an individual; and

17 DOES 1-10, 18 Defendants. 19 20 Plaintiff The Tamarisk Rd. Trust UDT 8/9/2020, PROPER T VIEW, INC. as Trustee 21 (“Plaintiff”) commenced an unlawful detainer action against Michael J. Prieto 22 (“Defendant”) in state court. Defendant removed Plaintiff’s complaint on April 14, 2022. 23 Before the Court is Plaintiff’s motion to remand (ECF No. 10), which is fully briefed. The 24 Court has read and considered the matters raised with respect to the motion and concluded 25 that this matter is suitable for decision without oral argument. See Fed. R. Civ. P. 78(b); 26 Local Rule 7-15. Having considered the submissions of the parties, the relevant law, and 27 the record in this case, as well as those filings for which the parties have requested the 28 Court take judicial notice, the Court hereby GRANTS Plaintiff’s Motion and REMANDS

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1 the case to the Superior Court of California for the County of Riverside. The Court also 2 GRANTS Plaintiff’s request for attorney fees. 3 I. BACKGROUND 4 On or about February 1, 2021, Plaintiff filed in the Superior Court of California, 5 County of Riverside, a civil action against Defendant and others concerning certain real 6 property identified in the complaint as being located at 2170 East Tamarisk Road, Palm 7 Springs, California 92262 (the “Property”). The verified complaint asserted causes of 8 action against Defendant for declaratory relief, ejectment and trespass, and to quiet title 9 (the “Quiet Title Case”).1 (ECF No. 19-1). 10 On December 14, 2021, Plaintiff filed in the Superior Court of California, County 11 of Riverside, a second civil action against Defendant for Unlawful Detainer After 12 Foreclosure pursuant to California Code of Civil Procedure (CCP) section 1161a 13 (hereinafter referred to as the “UD Complaint or UD Case”). (ECF No. 1-1 at 13). The 14 UD Complaint demands from Defendant immediate possession of the same Property 15 identified in the Quiet Title Case as being located at 2170 East Tamarisk Road, Palm 16 Springs, California 92262. Paragraph 5 of the UD Complaint alleges Plaintiff “took title 17 to the subject property” through a foreclosure sale held on or about August 19, 2020, and 18 thereafter received an executed and recorded Trustee’s Deed Upon Sale, a copy of which 19 Plaintiff attaches to the UD Complaint as an exhibit and incorporates into the UD 20 Complaint by reference. (ECF No. 1-1 at 14). The Trustee’s Deed, dated August 25, 2020, 21 provides that it conveys to Plaintiff a residential leasehold interest in the Property. On 22 23 1 The Court grants the parties’ respective requests to take judicial notice of the state court 24 filings from the underlying litigation, as well as the filings in the related state civil action 25 filed on February 1, 2021, Case No. CVPS2100537. (ECF Nos. 12, 16, and 19). See Federal Rules of Evidence 201; see also Reyna Pasta Bella, LLC v. Visa USA, Inc., 442 26 F.3d 741, 746 n.6 (9th Cir. 2006) (holding that it is appropriate to take judicial notice of 27 court filings and other matters of public record such as pleadings, briefs, memoranda, 28 motions, and transcripts filed in the underlying and related litigation).

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1 January 12, 2022, Defendant was served with the summons and UD Complaint. (ECF No. 2 12-10). 3 On or about March 9, 2022, Defendant moved in the Quiet Title Case for leave to 4 file a cross-complaint against Plaintiff and to consolidate both civil cases. (See ECF No. 5 16-1). On March 22, 2022, the superior court denied Defendant’s motion for leave to file 6 a cross-complaint, finding that Defendant had offered no excuse for the delay in presenting 7 the claims he wished to add. (ECF No. 12-2). Further, the superior court denied 8 Defendant’s motion to consolidate, reasoning that Defendant “failed to show a likelihood 9 of prevailing on his title-based claims, such that there is no cause to disrupt the ordinary 10 timing of unlawful detainer proceedings.” (ECF No. 12-2). Trial was scheduled to begin 11 on April 21, 2022. 12 On April 14, 2022, Defendant removed the UD Case to the Central District of 13 California pursuant to 28 U.S.C. §§ 1441(f) and 1442(a) essentially asserting that the 14 district court has exclusive federal jurisdiction and that this civil action is brought against 15 a property holder whose title is derived from a federal agency or officer. (ECF No. 1). On 16 May 6, 2022, Plaintiff moved to remand the case back to the superior court arguing that 17 under Title 28, United States Code, section 1446(b), Defendant’s notice of removal is 18 untimely because Defendant did not file the notice of removal within thirty days of 19 receiving the UD Complaint. (ECF No. 10); see also 28 U.S.C. § 1447(c). Defendant 20 argues in opposition to the motion that his notice of removal is timely because the basis for 21 removal did not become apparent until April 8, 2022, when Plaintiff asserted a “new federal 22 claim” in oppositions it filed to Defendant’s motion for judgment on the pleadings in the 23 UD Case by writing in one opposition that Plaintiff “has owned the Subject Property since 24 August 25, 2020” and referencing in a second opposition CCP section 1161. (See ECF No. 25 15 at 2; ECF Nos. 16-1 and 16-2 (the “April 8 Filings”)). Defendant argues these two 26 references “substantially changed” Plaintiff’s position regarding Plaintiff’s claim of title 27 since the filing of Plaintiff’s UD Complaint. 28

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1 Plaintiff replies that it has not asserted a “new federal claim” authorizing removal 2 and that Plaintiff has always maintained it has a possessory interest in the Property, as set 3 forth in the UD Complaint. 4 II. LEGAL STANDARD 5 Title 28, United States Code, section 1446(b) sets forth the time requirements for 6 filing a notice of removal. It provides in pertinent part: 7 (1) The notice of removal of a civil action or proceeding shall be filed within 8 30 days after the receipt by the defendant, through service or otherwise, of a 9 copy of the initial pleading setting forth the claim for relief upon which such 10 action or proceeding is based. . . . (3) . . ., if the case stated by the initial pleading is not removable, a notice of 11 removal may be filed within 30 days after receipt by the defendant, through 12 service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or 13 has become removable. 14 15 The initial thirty-day removal period under section 1446(b)(1) is triggered “if the 16 case stated by the initial pleading is removable on its face.” Carvalho v. Equifax Info. 17 Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010). Removability must be ascertainable from 18 “‘examination of the four corners of the applicable pleadings, not through subjective 19 knowledge or a duty to make further inquiry.’” Id. at 886 (quoting Harris v. Bankers Life 20 & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005)). 21 The second thirty-day removal period is triggered “if the initial pleading does not 22 indicate that the case is removable, and the defendant receives ‘a copy of an amended 23 pleading, motion, order or other paper’ from which removability may first be ascertained.” 24 Id. at 885 (citing 28 U.S.C. § 1446(b)). “In other words, even if a case were not removable 25 at the outset, if it is rendered removable by virtue of a change in the parties or other 26 circumstance revealed in a newly-filed paper, then the second thirty-day window is in 27 play.” Harris, 425 F.3d at 694 (internal quotation omitted). 28

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1 III. ANALYSIS 2 A. Timeliness of Removal 3 “When the defendant receives enough facts to remove on any basis under section 4 1441, the case is removable, and section 1446’s thirty-day clock starts ticking.” Durham 5 v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006). In the Ninth Circuit the 6 “statutory removal deadline [under 1441] is ‘imperative and mandatory, must be strictly 7 complied with, and is to be narrowly construed.’” Kang v. Allied Consultants, Inc., No. 8 5:21-cv-00149-MCS-SP, 2021 WL 1010629, at *1 (C.D. Cal. Mar. 15, 2021) (quoting 9 United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir. 1975)). Conversely, 10 “the Supreme Court has mandated a generous interpretation of the federal officer removal 11 statute.” Durham, 445 F.3d at 1252 (citing Colorado v. Symes, 286 U.S. 510, 517 (1932)). 12 Nevertheless, a federal officer has only 30 days to remove an action from “when the 13 plaintiff discloses sufficient facts for federal officer removal, even if the officer was 14 previously aware of a different basis for removal.” Id. at 1253. Although the time limits 15 under section 1446 are procedural rather than jurisdictional, they are “mandatory and a 16 timely objection to a late petition will defeat removal ....” Smith v. Mylan Inc., 761 F.3d 17 1042, 1045 (9th Cir. 2014) (quoting Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 18 (9th Cir. 1980)). 19 Plaintiff filed the UD Complaint on December 14, 2021, and served Defendant on 20 January 12, 2022. On April 14, 2022, well past the 30-day period, which expired on 21 February 11, 2022, and only one week before trial was scheduled to begin, Defendant 22 removed the UD Case. Plaintiff thereafter timely filed the present motion to remand as an 23 objection to the timing of Defendant’s removal. See 28 U.S.C. § 1447(c). 24 The bases for Defendant’s removal under sections 1441 and 1442 were apparent on 25 the face of the UD Complaint. The UD Complaint prominently indicates on the first page 26 that it is a “Complaint for unlawful detainer after foreclosure” and identifies the Property 27 at issue. (ECF No. 1-1 (citing CCP § 1161a)). To ascertain removal under section 1441, 28 as Defendant recognizes, CCP 1161a “applies to claims of possession following a sale of

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1 property and this statute uniquely requires that the Plaintiff plead and prove perfected title,” 2 and “the state court is without jurisdiction to resolve disputed claims of title to such 3 property” in an unlawful detainer action. (ECF No. 1 at 2; ECF No. 15 at 7). To ascertain 4 removal under section 1442, the UD Complaint clearly represents “a civil action brought 5 against a property holder whose title is derived from an agency or officer of the United 6 States.” (ECF No. 1 at 4; ECF No. 15 at 5-6). Whether Defendant qualifies as a property 7 holder under section 1442 does not negate the fact that he was aware based on the four 8 corners of the Complaint that he could seek removal on that basis. Therefore, the Court 9 finds that Defendant’s removal was untimely under Title 28, United States Code, section 10 1446(b).2 11 B. Plaintiff’s April 8 Filings 12 Defendant contends that his delay in seeking removal is justified because in the April 13 8 Filings Plaintiff “added a new and substantial federal claim by asserting that it is the 14 owner of Indian Trust land.” (ECF No. 15 at 4). Specifically, Plaintiff alleged in one of 15 those filings that it “has owned the Subject Property since August 25, 2020[,]” and, in the 16 other, Plaintiff made a passing reference to CCP section 1161 rather than 1161a. Based on 17 this, Defendant asserts that Plaintiff’s case transformed from a dispute over possessory 18 rights to one over ownership. 19 In response, Plaintiff argues that a single “sentence in a pleading does not . . . justify 20 Prieto’s untimely Notice of Removal” and Defendant “seeks to take advantage of 21 Plaintiff’s colloquial use of the term ‘owned’ erroneously referencing ownership of the 22 Subject Property versus ownership of the Leasehold Interest in the Subject Property.” 23

24 2 The Court need not decide whether Plaintiff’s claims qualify for federal subject matter 25 jurisdiction under either section 1441 or 1442 because the Court finds that Defendant’s removal was untimely for both. See, e.g., IntelliTikes, LLC v. Jordan, No. CV-15-02205- 26 PHX-NVW, 2016 WL 723001, at *2-3 (D. Ariz. Feb. 24, 2016) (remanding untimely 27 removal “without deciding whether there is federal jurisdiction” under section 1441); 28 Harris v. CBS Corp., No. 18-cv-07572-YGR, 2019 WL 913619, at *3-4 (N.D. Cal. Feb. 25, 2019) (remanding untimely removal despite existence of federal officer jurisdiction).

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1 (ECF No. 18 at 2). Plaintiff points out that, aside from two apparent scrivener’s errors, 2 Plaintiff at all times maintained that the underlying case is an action for unlawful detainer 3 under CCP 11161a, as evidenced on the first page of the UD Complaint. 4 The Court agrees with Plaintiff. The two sentences from the April 8 Filings did not 5 change the nature of the UD Case. See Olguin v. Int’l Paper Co., No. CV 16-01865-AB 6 (EX), 2016 WL 1643722, at *2 (C.D. Cal. Apr. 26, 2016) (remanding case for lack of 7 jurisdiction despite plaintiff’s “scrivener’s error” that may have suggested otherwise). 8 Accordingly, Defendant’s deadline to file a notice of removal was February 11, 2022, thirty 9 days after Plaintiff served the UD Complaint. 10 C. Attorney Fees 11 A district court may, in its discretion, “require payment of just costs and any actual 12 expenses, including attorney fees, incurred as a result of [improper] removal.” 28 U.S.C. 13 § 1447(c). “Absent unusual circumstances, courts may award attorney’s fees under 14 § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking 15 removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005). As the Supreme 16 Court explained, “[t]he process of removing a case to federal court and then having it 17 remanded back to state court delays resolution of the case, imposes additional costs on both 18 parties, and wastes judicial resources.” Id. at 140. The rationale behind section 1447’s 19 fee-shifting provision is to reduce “the attractiveness of removal as a method for delaying 20 litigation and imposing costs on the plaintiff.” Id. 21 The Court finds that Defendant did not have an objectively reasonable basis for 22 removal, and that an award of fees and costs is warranted. First, the underlying record in 23 the UD Case objectively demonstrates that Defendant knew he could seek removal before 24 the April 8 Filings. One of those filings was Plaintiff’s opposition to Defendant’s motion 25 for judgment on the pleadings based on federal court exclusive jurisdiction filed on April 26 8, 2022. (ECF No. 16-1). Therefore, Defendant necessarily filed his motion for judgment 27 based on alleged federal court exclusive jurisdiction before April 8. The evidence suggests 28 that Defendant’s removal attempt may have been a ploy to delay the underlying litigation.

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1 Second, Defendant did not address Plaintiff’s request for fees and costs in his opposition, 2 (see ECF No. 15), thereby conceding the reasonableness of Plaintiff’s request. See Kayfes 3 v. BMW of N. Am., LLC, No. CV 22-2438-FMO (PVCx), 2022 WL 2802325, at *2 (C.D. 4 Cal. July 18, 2022). 5 Plaintiff seeks an award of $6,281.50, which consists of $4,331.50 in attorney’s fees 6 incurred to file the Motion to Remand, plus $1,950.00 fees “Plaintiff anticipates it will 7 incur through the hearing on its Motion to Remand.” (ECF No. 10 at 2). Plaintiff’s counsel 8 submitted a declaration to substantiate the fees incurred, in which counsel provides that 9 $1,950.00 will include “the preparation of a reply to the opposition” and “appearing at the 10 hearing on this Motion to Remand.” (ECF No. 11 at 2). Because the Court took Plaintiff’s 11 Motion to Remand under submission without a hearing, Plaintiff did not incur the entirety 12 of $1,950.00 in fees. (ECF No. 23). Therefore, the Court awards Plaintiff $5,306.50 in 13 attorney’s fees pursuant to Title 28, United States Code, section 1447(c), which consists of 14 $4,331.50 to file the Motion to Remand and $975.00 (half) of the anticipated fees for filing 15 the reply brief and attending the hearing. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court GRANTS the Motion and REMANDS the case 18 to the Superior Court of California for the County of Riverside. The Court GRANTS 19 Plaintiff’s request for $5,306.50 in attorney’s fees. The Clerk shall close the file and 20 terminate all pending matters. 21 22 IT IS SO ORDERED. 23 24 DATED: August 4, 2022 25 HON. SHERILYN PEACE GARNETT

UNITED STATES DISTRICT JUDGE

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