Case 2:21-cv-07055-FLA-SK Document 22 Filed 09/29/22 Page 1 of 10 Page ID #:657

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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSEPH HUERTA, Case No. 2:21-cv-07055-FLA (SKx) 12 Plaintiff,

ORDER GRANTING PLAINTIFF’S

13 v. MOTION TO REMAND [DKT. 7] 14 AND DENYING DEFENDANT’S

MOTION TO DISMISS AS MOOT

COVINA CARE CENTER, INC., et al., 15 [DKT. 9] 16 Defendants.

17 18 RULING 19 Before the court are two motions: (1) Plaintiff Joseph Huerta’s (“Plaintiff” or 20 “Huerta”) Motion to Remand (Dkt. 7) (“MTR”); and (2) Defendant Covina Care 21 Center, Inc.’s (“Defendant” or “Covina Care Center”) Motion to Dismiss Plaintiff’s 22 Complaint (Dkt. 9) (“MTD”). Defendant opposes Plaintiff’s Motion to Remand. Dkt. 23 15 (“Opp’n to MTR”). Plaintiff opposes Defendant’s Motion to Dismiss. Dkt. 19 24 (“Opp’n to MTD”). On October 12, 2021 and November 11, 2021, the court found 25 the MTR and MTD appropriate for resolution without oral argument, respectively, and 26 vacated the hearings on the Motions. Dkts. 18, 21; see Fed. R. Civ. P. 78(b); Local 27 Rule 7-15. 28 / / /

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1 For the reasons stated herein, the court GRANTS Plaintiff’s Motion to 2 Remand and REMANDS the action to the Los Angeles Superior Court. 3 Defendant’s Motion to Dismiss is DENIED as moot. 4 BACKGROUND 5 This case arises in connection with the death of Maria Huerta (“Decedent”). 6 Plaintiff pleads the following facts in the Complaint. Dkt. 1-1 (“Compl.”). The court 7 states these allegations for context only and does not make any findings of fact 8 regarding the truth of these allegations. 9 On or about June 25, 2018, Decedent was admitted to Covina Care Center 10 following a hospital stay for respiratory failure. Id. ¶ 17. According to Plaintiff, 11 Covina Care Center failed to administer Intrapulmonary Percussive Ventilation (IPV) 12 treatments every six hours to treat Maria’s respiratory condition and prevent 13 pneumonia, as was ordered by her doctor. Id. ¶¶ 17, 21. As a result, Decedent 14 developed pneumonia, which required emergency hospital treatment. Id. ¶ 23. 15 Furthermore, Decedent was noted to have a stage one bed sore upon admission to the 16 hospital. Id. 17 After Decedent was discharged from the hospital and returned to Covina Care 18 Center, Decedent developed severe rashes on her buttocks and her private areas, but 19 Covina Care Center failed to provide any treatment. Id. ¶ 24. Also, while Decedent 20 had dementia and required twenty-four-hour monitoring to prevent her from removing 21 her gastronomy tube, Plaintiff was informed by Covina Care Center staff on or about 22 March 16, 2019, that Decedent had pulled out her gastronomy tube on earlier that day. 23 Id. ¶ 25. 24 Throughout her stay at Covina Care Center, Decedent frequently became ill 25 with pneumonia and lung infections. Id. ¶¶ 25-26. Decedent was hospitalized for 26 pneumonia in December 2020, and discharged to Covina Care Center in late 27 December 2020 or early January 2021. Id. ¶ 27. 28 / / /

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1 On January 14, 2021, Covina Care Center called Huerta to request authorization 2 to administer a COVID-19 vaccine to Decedent. Id. ¶ 28. Huerta refused to provide 3 authorization until he could consult with Decedent’s physician regarding her ability to 4 receive the vaccine given her medical conditions. Id. Shortly thereafter, without 5 obtaining consent, Covina Care Center administered the COVID-19 vaccine to 6 Decedent. Id. ¶ 29. The next day, Decedent received a second dose of the COVID-19 7 vaccine. Id. ¶ 30. Approximately five to ten days later, Decedent was transferred to 8 the hospital for emergency services, after she began to have serious health 9 complications. Id. ¶ 30. On January 27, 2021, Plaintiff was informed by hospital 10 physicians that Decedent’s body appeared to be reacting as if it had an infection, but 11 the physicians had been unable to locate an infection. Id. ¶ 31. Decedent passed away 12 later that day on January 27, 2021. Id. Based on her symptoms, Plaintiff believes 13 Decedent passed away due to complications from the COVID-19 vaccinations. See id. 14 On July 26, 2021, Plaintiff commenced this action in the Los Angeles County 15 Superior Court, as personal representative of Decedent’s Estate and in his individual 16 capacity, alleging causes of action for: (1) wrongful death; (2) negligence; (3) elder 17 abuse; (4) violation of the Patient’s Bill of Rights; (5) violation of the Unfair 18 Competition Act (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (6) willful 19 misconduct; (7) constructive fraud; (8) fraudulent concealment, Cal. Civ. Code § 1710 20 et seq.; and (9) negligent infliction of emotional distress. See generally Compl. 21 Defendant removed this action to federal court on September 1, 2021, asserting 22 three grounds for the court’s subject matter jurisdiction: (1) federal question 23 jurisdiction because the Public Readiness and Emergency Preparedness Act, 42 U.S.C. 24 §§ 247d-6d, 247d-6e (2006) (the “PREP Act”) completely preempts Plaintiff’s state- 25 law claims; (2) federal question jurisdiction because Plaintiff’s Complaint raises a 26 substantial federal question; and (3) federal officer jurisdiction under 28 U.S.C. § 27 1442(a)(1) because Defendant was sued for acts undertaken at the direction of a 28 federal officer. See generally Dkt. 1.

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1 DISCUSSION 2 Federal courts have subject matter jurisdiction only as authorized by the 3 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 4 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court 5 may be removed to federal court only if the federal court would have had original 6 jurisdiction over the action. 28 U.S.C. § 1441(a). The party seeking removal bears 7 the burden of establishing federal jurisdiction by a preponderance of the evidence. 8 Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (citing McNutt v. Gen. 9 Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)). 10 In ruling on a motion to remand, jurisdiction is generally determined from the 11 face of the complaint. Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985). The 12 court may remand the action sua sponte “[i]f at any time before final judgment it 13 appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c); 14 United Invs. Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 15 I. Federal Question Jurisdiction (28 U.S.C. § 1331) 16 Federal district courts have original jurisdiction over all civil actions “arising 17 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. 18 “The presence or absence of federal-question jurisdiction is governed by the ‘well- 19 pleaded complaint rule,’ which provides that federal jurisdiction exists only when a 20 federal question is presented on the face of the plaintiff’s properly pleaded 21 complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). “This rule 22 makes a plaintiff the ‘master of his complaint’: He may generally avoid federal 23 jurisdiction by pleading solely state-law claims.” Valles v. Ivy Hill Corp., 410 F.3d 24 1071, 1075 (9th Cir. 2005). 25 In support of its claim of federal question jurisdiction, Defendant argues that 26 two exceptions to the well-pleaded complaint rule apply here—namely, that the Public 27 Readiness and Emergency Preparedness Act (the “PREP Act”) preempts state law and 28

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1 provides an exclusive federal cause of action, and a federal question is embedded in 2 the state-law claims. See generally Opp’n to MTR. Both theories fail. 3 A. PREP Act Preemption 4 Passed in 2005, the PREP Act, 42 U.S.C. § 247d, provides immunity to 5 “covered persons” against claims for losses due to the administration or use of a 6 “covered countermeasure” in a declared public health emergency, such as the COVID- 7 19 pandemic. 42 U.S.C. § 247d-6d(a)(1). “Covered countermeasures” include items 8 such as drugs, biological products, devices used to prevent or treat a serious disease, 9 and respiratory protective devices. 42 U.S.C. § 247d-6d(i)(1). “Covered persons” 10 who may be immune from liability include manufacturers, distributors, and program 11 planners of such countermeasures. Id. § 247d-6d(i)(2). If immunity applies,1 the 12 injured person or their survivors may seek compensation from an administrative 13 program that provides reimbursement for some losses associated with the use of 14 covered countermeasures. Id. § 247d-6e. The only exception to the Act’s immunity 15 from suit and liability of covered persons under subsection (a) is for death or serious 16 physical injury proximately caused by willful misconduct, in which case an injured 17 person or her representatives may file a claim in the United States District Court for 18 the District of Columbia. Id. § 247d-6d(d). On March 10, 2020, the Secretary of HSS 19 declared the COVID-19 pandemic a public health emergency under the PREP Act, 20 thereby authorizing liability protection for use of covered countermeasures (the 21 “Declaration”). 85 Fed. Reg. 15198-01. 22 As an exception to the well-pleaded complaint rule, the complete preemption 23 doctrine recognizes that “Congress may so completely preempt a particular area that 24 any civil complaint raising this select group of claims is necessarily federal in 25 26 1 The parties dispute whether the PREP Act applies to Plaintiff’s claims and whether 27 Defendant is entitled to immunity under the Act. See MTR 23-25. Because the court finds it lacks subject matter jurisdiction in this action, the court need not resolve this 28 issue and remands this question to the state court to decide.

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1 character.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). In the Ninth 2 Circuit, “complete preemption for purposes of federal jurisdiction under § 1331 exists 3 when Congress: (1) intended to displace a state-law cause of action, and (2) provided 4 a substitute cause of action.” City of Oakland v. BP PLC, 969 F.3d 895, 906 (9th Cir. 5 2020). When a state-law claim is completely preempted by a federal claim, it ceases 6 to exist and is “‘recharacterized’ as the federal claim that Congress made exclusive.” 7 Hansen v. Grp. Health Coop., 902 F.3d 1051, 1058 (9th Cir. 2018) (quoting Vaden v. 8 Discover Bank, 556 U.S. 49, 61 (2009)). Complete preemption, however, rarely 9 applies. City of Oakland, 969 F.3d at 905-06 (“The Supreme Court has identified only 10 three statutes that meet [its] criteria: (1) § 301 of the Labor Management Relations Act 11 …; (2) § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA) 12 …; and (3) §§ 85 and 86 of the National Bank Act….”). 13 In Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 688 (9th Cir. 2022), 14 the Ninth Circuit concluded “the PREP Act is not a complete preemption statute,” 15 explaining “[t]he text of the statute shows that Congress intended a federal claim only 16 for willful misconduct claims and not claims for negligence and recklessness.” 17 Applying the two-part test articulated in City of Oakland, 969 F.3d at 906, the Ninth 18 Circuit found that “the PREP Act neither shows the intent of Congress to displace … 19 non-willful misconduct claims … related to the public health emergency, nor does it 20 provide substitute causes of action for [such] claims.” Saldana, 27 F.4th at 688. 21 Accordingly, the court finds the PREP Act does not completely preempt 22 Plaintiff’s state-law claims. Defendant’s theory of federal question jurisdiction on this 23 basis fails. 24 B. Embedded Federal Question 25 Next, Defendant contends the court has subject matter jurisdiction because a 26 federal question is necessarily embedded in the state claims asserted in the Complaint. 27 Opp’n to MTR 21. 28 / / /

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1 For a state law claim to provide federal question jurisdiction, the “state law 2 claim [must] necessarily raise a stated federal issue, actually disputed and substantial, 3 which a federal forum may entertain without disturbing any congressionally approved 4 balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., 5 Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). “That is, federal jurisdiction 6 over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually 7 disputed, (3) substantial, and (4) capable of resolution in federal court without 8 disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 9 U.S. 251, 258 (2013). 10 Here, Defendant has not demonstrated that federal jurisdiction lies under 11 Grable. Plaintiff’s claims do not necessarily raise a substantial federal issue because 12 they do not require the interpretation or challenge the constitutional validity of any 13 federal statute. See City of Oakland, 969 F.3d at 906-07 (finding no federal 14 jurisdiction under the “slim category” articulated in Grable where the claim “neither 15 require[d] an interpretation of a federal statute nor challenge[d] a federal statute’s 16 constitutionality” (citation omitted)). Rather, interpretation of the PREP Act arises 17 only because Defendant has asserted it as a shield to liability. A federal issue that is 18 raised as a defense is not sufficient grounds to establish federal question jurisdiction. 19 City of Oakland, 969 F.3d at 907 n. 6; see also Caterpillar, 482 U.S. at 393 (“[A] case 20 may not be removed to federal court on the basis of a federal defense … even if the 21 defense is anticipated in the plaintiff’s complaint, and even if both parties concede that 22 the federal defense is the only question truly at issue.”); Stone v. Long Beach 23 Healthcare Center, LLC, No. 2:21-cv-00326-JFW (PVCx), 2021 WL 1163572, at *7 24 (C.D. Cal. Mar. 26, 2021) (finding plaintiff’s claims did not present an embedded 25 question under Grable because PREP Act immunity was merely related to defendant’s 26 defense and “not necessarily raised” by plaintiff’s claims). The court, thus, lacks 27 subject matter jurisdiction over Plaintiff’s state-law claims under this theory of federal 28 question jurisdiction.

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1 II. The Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1) 2 Finally, Defendant argues removal is proper under 28 U.S.C. § 1442(a)(1), 3 which provides for removal when a Defendant is sued for acts undertaken at the 4 direction of a federal officer. Opp’n to MTR 22. 5 Under the federal officer removal statute, a civil action may be removed to 6 federal court by “any officer (or any person acting under that officer) of the United 7 States or of any agency thereof, in an official or individual capacity, for or relating to 8 any act under color of such office….” 28 U.S.C. § 1442(a)(1) (“§ 1442”). In the 9 Ninth Circuit, federal officer removal is available to a defendant under § 1442(a) if: 10 (1) the removing defendant is a “person” within the meaning of the statute; (2) there is 11 a causal nexus between the removing party’s actions, taken pursuant to a federal 12 officer’s directions, and plaintiff’s claims; and (3) the removing party can assert a 13 colorable federal defense. Stirling v. Minasian, 955 F.3d 795, 800 (9th Cir. 2020). 14 The federal officer removal statute is an exception to the “well-pleaded 15 complaint” rule, which requires a federal question to appear on the face of the 16 complaint for jurisdiction to be proper, rather than raised as an anticipated or actual 17 defense. Jefferson County v. Acker, 527 U.S. 423, 431 (1999), superseded by statute 18 on other grounds as discussed in Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 19 (4th Cir. 2017). In other words, the statute allows removal of suits against federal 20 officers and people acting under them so long as: (1) a “connection or association” 21 exists between the act in question and the federal office; and (2) their defense depends 22 on federal law. Id. 23 Defendant argues that as a result of the COVID-19 pandemic, senior living 24 communities were designated “critical infrastructure” which allowed the federal 25 government to enlist the aid of private parties to ensure the continued operation of 26 infrastructure vital to the United States. Opp’n to MTR 23. The court disagrees. 27 Although the federal officer removal statute is “liberally construed” in favor of 28 removal, “[a] private firm’s compliance (or noncompliance) with federal laws, rules,

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1 and regulations does not by itself fall within the scope of the statutory phrase ‘acting 2 under’ a federal ‘official,’ … even if the regulation is highly detailed and even if the 3 private firm’s activities are highly supervised and monitored.” Watson v. Philip 4 Morris Cos., 551 U.S. 142, 147, 153 (2007). “A contrary determination would 5 expand the scope of the statute considerably, potentially bringing within its scope 6 state-court actions filed against private [entities] in many highly regulated industries.” 7 Id. In connection with this specific issue, the Ninth Circuit has recognized that “[i]t 8 cannot be that the federal government’s mere designation of an industry as 9 important—or even critical—is sufficient to federalize an entity’s operations and 10 confer federal jurisdiction.” Saldana, 27 F.4th at 685. As the court explained, a 11 healthcare provider’s “status as a critical infrastructure entity does not establish that it 12 acted under a federal officer or agency, or that it carried out a government duty.” Id. 13 (affirming the remand of similar claims asserted against a nursing home for lack of 14 federal subject matter jurisdiction). 15 Accordingly, the court lacks subject matter jurisdiction over Plaintiff’s state- 16 law claims under this theory of federal question jurisdiction. 17 III. Defendant’s Request for Stay 18 In the event the court grants Plaintiff’s Motion to Remand, Defendant requests 19 the court temporarily stay the remand under Fed. R. Civ. P. 62(a) to allow Defendant 20 to appeal the court’s denial of 28 U.S.C. § 1442 federal officer jurisdiction. Opp’n to 21 MTR 1; see 28 U.S.C. § 1447(d) (“An order remanding a case to the State court from 22 which it was removed is not reviewable on appeal” unless the action “was removed 23 pursuant to section 1442 [the federal officer removal statute] or 1443 [civil rights 24 cases]….”). As § 1447 does not provide for a stay of execution pending such appeal, 25 the grant or denial of a stay “rests squarely in the sound discretion of the district 26 court.” Poore v. State of Ohio, 243 F. Supp. 777, 782 (N.D. Ohio 1965). Since the 27 Ninth Circuit has already ruled on this issue in Saldana, 27 F.4th at 679, the court 28 declines to stay the remand pending an appeal.

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l CONCLUSION 2 For the foregoing reasons, the court GRANTS Plaintiff's Motion to Remand 3 | (Dkt. 7), and REMANDS the action to the Los Angeles Superior Court. Defendant’s 4 || Motion to Dismiss (Dkt. 9) is DENIED as moot. 6 IT IS SO ORDERED. 8 | Dated: September 29, 2022

10 FERNANDO L. AENLLE-ROCHA 4 United States District Judge

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