1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ABLE P.M. INC., d/b/a Able Property CASE NO. 1:21-CV-1778 AWI JLT Management, 9 Plaintiff ORDER SUA SPONTE REMANDING 10 MATTER TO THE KERN COUNTY v. SUPERIOR COURT 11

KENNETH EMMONS, CRYSTAL

12 EMMONS and DOES 1-10,

13 Defendants

14 15 Defendants removed this case from the Superior Court of Kern County on December 16, 16 2021. See Court’s Docket Doc. No. 1. Defendants assert that the basis for removal is the 17 presence of a federal question. Specifically, Defendants contend that they filed an answer to 18 Plaintiff’s unlawful detainer complaint that alleged Plaintiff failed to follow the strict notice 19 requirements of California Code of Civil Procedure § 1161. It is through the invocation § 1161 in 20 their answer that Defendants assert that jurisdiction exists. See id. 21 A district court has “a duty to establish subject matter jurisdiction over the removed action 22 sua sponte, whether the parties raised the issue or not.” United Investors Life Ins. Co. v. Waddell 23 & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal statute (28 U.S.C. § 1441) is 24 strictly construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka, 25 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 26 F.3d 1083, 1087 (9th Cir. 2009). It is presumed that a case lies outside the limited jurisdiction of 27 the federal courts, and the burden of establishing the contrary rests upon the party asserting 28 jurisdiction. Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris USA, 582 1 F.3d 1039, 1042 (9th Cir. 2009). “The strong presumption against removal jurisdiction” means 2 that “the court resolves all ambiguity in favor of remand to state court.” Hunter, 582 F.3d at 1042; 3 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is, federal jurisdiction over a 4 removed case “must be rejected if there is any doubt as to the right of removal in the first 5 instance.” Geographic Expeditions, 599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d 1480, 1485 6 (9th Cir. 1996); Gaus, 980 F.2d at 566. “If at any time prior to judgment it appears that the district 7 court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); Gibson 8 v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001). Remand under 28 U.S.C. § 1447(c) “is 9 mandatory, not discretionary.” Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997); see 10 California ex. rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). That is, the court 11 “must dismiss a case when it determines that it lacks subject matter jurisdiction, whether or not a 12 party has filed a motion.” Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995). 13 “The presence or absence of federal question jurisdiction is governed by the ‘well-pleaded 14 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 15 presented on the face of the plaintiff’s properly pleaded complaint.” California v. United States, 16 215 F.3d 1005, 1014 (9th Cir. 2000); see Dynegy, 375 F.3d at 838; Duncan, 76 F.3d at 1485. 17 Under the “well-pleaded complaint” rule, courts look to what “necessarily appears in the 18 plaintiff’s statement of his own claim in the bill or declaration, unaided by anything in anticipation 19 of avoidance of defenses which it is thought the defendant may interpose.” California, 215 F.3d at 20 1014. Accordingly, “a case may not be removed on the basis of a federal defense . . . even if the 21 defense is anticipated in the plaintiff’s complaint and both parties concede that the federal defense 22 is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); 23 Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002); see also Vaden v. 24 Discover Bank, 129 S. Ct. 1262, 1278 (2009) (“It does not suffice to show that a federal question 25 lurks somewhere inside the parties’ controversy, or that a defense or counterclaim would arise 26 under federal law.”). 27 Here, Defendants have not shown that removal was appropriate. The complaint filed by 28 Plaintiff is an unlawful detainer action that is based entirely on state law. As mentioned above, 1 | Defendants rely on their answer to establish federal jurisdiction. However, the answer merely 2 alleges defective notice under state law; there is no federal law invoked in the answer whatsoever. 3 | A California statute cannot form the basis for federal question jurisdiction. See 28 U.S.C. § 1331; 4 Sierra Equity Acquisitions, LLC v. Doleire, 2016 U.S. Dist. LEXIS 152829, *3-*4 (S.D. Cal. Oct. 5 28, 2016); Pacific Zinfandel Apts. v. Rowan, 2016 U.S. Dist. LEXIS 32743, *2-*3 (E.D. Cal. Mar. 6 14, 2016); Muzi v. Muniz, 2015 U.S. Dist. LEXIS 70058, *2-*3 (N.D. Cal. May 29, 2015); 7 Nationstar Mortg., LLC v. Hori, 2014 U.S. Dist. LEXIS 5412, *6-*8 (C.D. Cal. Jan. 14, 2014). 8 | Moreover, even if a federal defense was actually pled in Defendants’ answer, the invocation of a 9 || federal defense cannot form the basis of this Court’s jurisdiction. See Vaden, 129 S.Ct. at 1278; 10 | Caterpillar, 482 U.S. at 392; Wayne, 294 F.3d at 1183; California, 215 F.3d at 1014. Because 11 is no federal question appearing in Plaintiff’s complaint, Defendants have failed to invoke 12 ||this Court’s jurisdiction. Remand to the Kern County Superior Court is appropriate and 13 | mandatory. 28 U.S.C. § 1447(c); Geographic Expeditions, 599 F.3d at 1107; Bruns, 122 F.3d at 14 | 1257; Page, 45 F.3d at 133. 15 Accordingly, IT IS HEREBY ORDERED that, per 28 U.S.C. § 1447(c), due to this Court’s 16 }lack of subject matter jurisdiction, this case is REMANDED forthwith to the Superior Court of 17 | Kern County. 18 19 ITIS SO ORDERED. 20 | Dated: _December 18, 2021 SE SISTRICI “UDGE 21 22 23 24 25 26 27 28