1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THE JOSEPH PLAGENZA AND ROSE No. 1:19-CV-01726-DAD-SKO

PLAGENZA 1990 LIVING TRUST,

12 Plaintiff, 13 ORDER SUA SPONTE REMANDING CASE v. TO MERCED COUNTY SUPERIOR COURT 14 AND DENYING MOTION TO PROCEED IN

SHERRY ZAVALA, FORMA PAUPERIS AS MOOT

15 Defendant. (Doc. Nos. 1, 2) 16

17 18 This is an unlawful detainer action brought under California state law by plaintiff The 19 Joseph Plagenza and Rose Plagenza 1990 Living Trust (“plaintiff”) against defendant Sherry 20 Zavala. On December 11, 2019, defendant removed this case to this federal court from the 21 Merced County Superior Court. (Doc. No. 1.) Defendant asserts that the basis for removal is that 22 she withheld rent under the Fair Housing Act, 42 U.S.C. § 3604, because the landlord had refused 23 to modify the premises to afford full enjoyment of that premises to defendant’s roommate and co- 24 tenant, who is physically handicapped. (Id. at 2.) Defendant filed a motion to proceed in forma 25 pauperis on the same date, December 11, 2019. (Doc. No. 2.) 26 A district court has “a duty to establish subject matter jurisdiction over the removed action 27 sua sponte, whether the parties raised the issue or not.” United Investors Life Ins. Co. v. Waddell 28 & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal statute, 28 U.S.C. § 1441, is 1 strictly construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka, 2 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 3 F.3d 1083, 1087 (9th Cir. 2009). It is presumed that a case lies outside the limited jurisdiction of 4 the federal courts, and the burden of establishing the contrary rests upon the party asserting 5 jurisdiction. Geographic Expeditions, 599 F.3d at 1106–07; Hunter v. Philip Morris USA, 582 6 F.3d 1039, 1042 (9th Cir. 2009). In addition, “the existence of federal jurisdiction depends solely 7 on the plaintiff’s claims for relief and not on anticipated defenses to those claims.” ARCO Envtl. 8 Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000). 9 “The strong presumption against removal jurisdiction” means that “the court resolves all 10 ambiguity in favor of remand to state court.” Hunter, 582 F.3d at 1042; Gaus v. Miles, Inc., 980 11 F.2d 564, 566 (9th Cir. 1992). That is, federal jurisdiction over a removed case “must be rejected 12 if there is any doubt as to the right of removal in the first instance.” Geographic Expeditions, 599 13 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Gaus, 980 F.2d at 566. “If 14 at any time prior to judgment it appears that the district court lacks subject matter jurisdiction, the 15 case shall be remanded.” 28 U.S.C. § 1447(c); Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th 16 Cir. 2001). Remand under 28 U.S.C. § 1447(c) “is mandatory, not discretionary.” Bruns v. 17 NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997); see also California ex. rel. Lockyer v. Dynegy, Inc., 18 375 F.3d 831, 838 (9th Cir. 2004). Where it appears, as it does here, that the district court lacks 19 subject matter jurisdiction over a removed case, “the case shall be remanded.” 28 U.S.C. 20 § 1447(c). 21 “The presence or absence of federal question jurisdiction is governed by the ‘well-pleaded 22 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 23 presented on the face of the plaintiff’s properly pleaded complaint.” California v. United States, 24 215 F.3d 1005, 1014 (9th Cir. 2000); see also Dynegy, 375 F.3d at 838; Duncan, 76 F.3d at 1485. 25 Under the well-pleaded complaint rule, courts look to what “necessarily appears in the plaintiff’s 26 statement of his own claim in the bill or declaration, unaided by anything in anticipation of 27 avoidance of defenses which it is thought the defendant may interpose.” California, 215 F.3d at 28 1014. Accordingly, “a case may not be removed on the basis of a federal defense . . . even if the 1 | defense is anticipated in the plaintiff's complaint and both parties concede that the federal defense 2 | is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); 3 Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002); see also Vaden v. 4 | Discover Bank, 556 US. 49, 70 (2009) (“It does not suffice to show that a federal question lurks 5 || somewhere inside the parties’ controversy, or that a defense or counterclaim would arise under 6 | federal law.”). 7 Here, defendant has not shown that removal of this action to this federal court is 8 | appropriate. Plaintiffs complaint is a straight-forward unlawful detainer action that is based 9 | entirely on state law. As stated above, defendants rely solely on a contemplated defense under 10 | the Fair Housing Act in attempting to establish federal jurisdiction. Even assuming defendants 11 | can assert such a defense, they cannot use that anticipated defense as the basis for removal 12 || because the defensive invocation of federal law cannot form the basis of this court’s jurisdiction. 13 | See Vaden, 556 U.S. at 70; Caterpillar, 482 U.S. at 392; Wayne, 294 F.3d at 1183; California, 14 | 215 F.3d at 1014. 15 Because there is no federal question appearing in plaintiff's complaint, defendants have 16 | failed to properly invoke this court’s jurisdiction. Remand to the Merced County Superior Court 17 || is appropriate and mandatory. 28 U.S.C. § 1447(c); Geographic Expeditions, 599 F.3d at 1107; 18 | Bruns, 122 F.3d at 1257. 19 Accordingly, 20 1. This action is remanded forthwith to the Merced County Superior Court, pursuant 21 to 28 U.S.C. § 1447(c), for lack of subject matter jurisdiction; 22 2. Defendant’s motion to proceed in forma pauperis (Doc. No. 2) is denied as having 23 been rendered moot by this order; and 24 3. The Clerk of the Court is directed to close this action. 25 | IT IS SO ORDERED. me □ *° Dated: _ December 11, 2019 Yh AL 27 UNITED STATES DISTRICT JUDGE 28