1 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. CV 21-05172 AB (ASx)

11 LUCIA CORTEZ, individually and ORDER GRANTING MOTION FOR as, successor and heir of LORENZO REMAND; ORDER DENYING AS 12 CORTEZ, deceased, RACHEL MOOT MOTION TO DISMISS

13 KAUFMAN, individually and as successor and heir of SHLOMO 14 MIZRACHI, deceased,

15 16 Plaintiffs,

17 v.

18

19 PARKWEST

REHABILITATION CENTER

20 LLC, a California corporation; 21 CRYSTAL SOLORZANO, an 22 individual, and DOES 1 through 100, inclusive, 23

24

25 Defendants. 26

27

28 1 Before the Court is a Motion for Remand (“Motion,” Dkt. No. 13) filed by 2 Plaintiffs Lucia Cortez and Rachel Kaufman (“Plaintiffs”). Defendants Parkwest 3 Rehabilitation Center, LLC and Crystal Solorzano (“Defendants”) filed an opposition. 4 (“Opp’n,” Dkt. No. 20). Plaintiffs filed a reply. (“Reply,” Dkt. No. 22). Also before 5 the Court is a Motion to Dismiss (Dkt. No 10) filed by Defendants. Plaintiffs 6 opposed, Dkt. Nos. 15, 16, and Defendant replied, Dkt. Nos. 17, 18. The Court heard 7 oral argument on August 20, 2021 and took the matter under submission. See Dkt. 8 No. 23. For the following reasons, the Motion to Remand is GRANTED, and thus, 9 the Motion to Dismiss is DENIED AS MOOT. 10 I. BACKGROUND 11 Plaintiffs’ Complaint (Dkt. No. 1-2) alleges as follows. Decedents Lorenzo 12 Cortez and Shlomo Mizrachi were elderly residents of a Parkwest Rehabilitation 13 Center LLC nursing home. Compl., ¶ 3. Plaintiffs allege that in April and May of 14 2020, Parkwest’s leadership learned that multiple members of its staff were tested or 15 were suspected of having COVID-19 yet did not inform residents or their families and 16 continued to allow the staff to work. Compl., ¶ 23. Plaintiffs further allege that 17 Parkest knew, or had reason to know fellow residents were also infected. Compl., ¶ 18 24. Mr. Cortez and Mr. Mizrachi contracted COVID-19 at Defendant’s nursing home 19 and died shortly thereafter. Compl., ¶ 24. Plaintiffs allege that Defendants failed to 20 protect its residents from COVID-19 and thus failed to implement proper control and 21 prevention protocols. Based on these allegations, Plaintiffs assert claims for 22 negligence or willful misconduct, elder abuse, negligence, and wrongful death. 23 Plaintiffs filed their Complaint in the Superior Court of the State of California 24 on April 20, 2021. 25 On June 25, 2021, Defendants removed this case to this Court, asserting subject 26 matter jurisdiction on three grounds: (1) the federal officer statute 28 U.S.C. § 27 1442(a)(1), given the CDC’s ongoing directives to respond to and control the COVID- 28 19 pandemic; (2) complete preemption pursuant to the PREP Act, 42 U.S.C. §§ 247d- 1 6d, 247d-6e; and (3) the Grable doctrine. See Notice of Removal (Dkt. No. 1). 2 Plaintiffs now move for remand, arguing that the Court lacks subject matter 3 jurisdiction. This Court and other courts in the Central District of California have 4 already addressed these questions in the context of state law tort suits arising out of 5 COVID-19 deaths in care facilities. See, e.g., Todd M. Swick v. Canoga Healthcare, 6 Inc. et al (CV 21-02876-AB-RAOx) and Domenic Romeo v. Canoga Healthcare, Inc. 7 (CV 21-02918-AB-RAOx) Martin v. Serrano Post Acute LLC, No. CV 20-5937 DSF 8 (SKX), 2020 WL 5422949, at *1 (C.D. Cal. Sept. 10, 2020); Jackie Saldana v. 9 Glenhaven Healthcare LLC, No. CV-205631-FMO-MAAX, 2020 WL 6713995, at *1 10 (C.D. Cal. Oct. 14, 2020); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV- 11 09746-SB-PVC, 2021 WL 911951, at *1 (C.D. Cal. Mar. 1, 2021); Smith v. Colonial 12 Care Ctr., Inc., No. 2:21-CV-00494-RGK-PD, 2021 WL 1087284, at *1 (C.D. Cal. 13 Mar. 19, 2021); Stone v. Long Beach Healthcare Ctr., LLC, No. CV 21-326- 14 JFW(PVCX), 2021 WL 1163572, at *1 (C.D. Cal. Mar. 26, 2021); Winn v. California 15 Post Acute LLC, No. CV2102854PAMARX, 2021 WL 1292507, at *1 (C.D. Cal. Apr. 16 6, 2021). In each of these cases, the Court found that it lacked subject matter 17 jurisdiction and remanded the case to state court. Defendants argue that these courts 18 too narrowly interpret the PREP act and misconstrue Congress’s and HHS’s intent. 19 Defendants ask this Court to follow the decisions in Garcia v. Welltower OpCo Grp. 20 LLC, No. SACV2002250JVSKESX, 2021 WL 492581, at *1 (C.D. Cal. Feb. 10, 21 2021) and Rachal v. Natchitoches Nursing & Rehab Center LLC, Civil Docket No. 22 1:21-CV-00334 *11 (W.D. La. April 30, 2021). However, the Court explains below 23 why it declines to follow the reasoning of Garcia and Rachal. Once again, the Court 24 finds the weight of opinion of its sister courts persuasive, and accordingly this Order 25 relies on them. 26 // 27 // 28 1 II. REQUEST FOR JUDICIAL NOTICE 2 The Court may take judicial notice of facts not subject to reasonable dispute 3 that are either “generally known” in the community, or “capable of accurate and ready 4 determination” by reference to sources whose accuracy cannot be reasonably 5 questioned. Fed. R. Evid. 201(b). 6 Here, Defendants request that the Court take judicial notice of official acts of 7 the United States Health and Human Services Secretary (“HHS”) and his office, the 8 official acts of federal state administrative agencies such as the Center for Disease 9 Control (“CDC”), the Centers for Medicare and Medicaid Services (“CMS”), the 10 California Department of Public Health (“CDPH”), and court filings from similar 11 cases. See Defendants’ Request for Judicial Notice (Dkt. No. 21). “Under Rule 201, 12 the court can take judicial notice of ‘public records and government documents 13 available from reliable sources on the internet’ such as websites run by government 14 agencies.” U.S. ex rel. Modglin v. DJO Glob. Inc., 48 F. Supp. 3d 1362, 1382 (C.D. 15 Cal. 2014), aff’d sub nom. United States v. DJO Glob., Inc., 678 F. App’x 594 (9th 16 Cir. 2017). Because these documents are matters of public record and available from 17 reliable sources on the internet, the Court finds that they are not subject to reasonable 18 19 dispute Thus, Defendants’ request is GRANTED. 20 III. LEGAL STANDARD 21 A defendant may remove a civil action filed in state court to federal district 22 court when the federal court has original jurisdiction over the action. 28 U.S.C. 23 §1441(a). “The burden of establishing jurisdiction falls on the party invoking the 24 removal statute, which is strictly construed against removal.” Sullivan v. First 25 Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987) (internal citations omitted); 26 see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). “The ‘strong 27 presumption’ against removal jurisdiction means that the defendant always 28 1 has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980. F.2d 2 564, 566 (9th Cir. 1992). If any doubt exists as to the right of removal, federal 3 jurisdiction must be rejected. Id. at 566–67; see also Hunter v. Philip Morris USA, 4 582 F.3d 1039, 1042 (9th Cir. 2009) (citing Id. at 566) (“[T]he court resolves all 5 ambiguity in favor of remand to state court.”). 6 IV. DISCUSSION 7 Defendants argue that this Court has subject matter jurisdiction on three 8 independent grounds: (a) federal officer removal; (b) complete preemption under the 9 PREP Act, and (c) embedded question of federal law under the Grable doctrine. 10 Plaintiffs respond that none of these grounds applies here. 11 A. Federal Officer Removal 12 Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the 13 removing party] is a ‘person’ within the meaning of the statute; (b) there is a causal 14 nexus between its actions, taken pursuant to a federal officer’s directions, and 15 plaintiff’s claims; and (c) it can assert a ‘colorable federal defense.’” Fidelitad, Inc. v. 16 Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). This is an exception to the well- 17 pleaded complaint rule, which typically requires a federal question to be pleaded in 18 the complaint in order for the court to have subject matter jurisdiction based on a 19 federal question. See N.G. v. Downey Reg’l Med. Ctr., 140 F.Supp.3d 1036, 1039 20 (C.D. Cal 2015). 21 There is no dispute that the removing parties are persons for purposes of the 22 statute. The next inquiry is whether Defendants acted “pursuant to a federal officer’s 23 directions,” whether there is a “causal nexus” between Defendants’ actions and 24 Plaintiffs’ claims, and whether Defendants can assert a colorable federal defense. 25 Defendants point to government regulations and public directives regarding the 26 response to the COVID-19 pandemic. The court in Fidelitad noted that, “[f]or a 27 private entity to be acting under a federal officer, the private entity must be involved 28 in an effort to assist, or to help carry out, the duties or tasks of the federal superior.” 1 Fidelitad, Inc., 904 F.3d at 1095. Further, a “private firm’s compliance (or 2 noncompliance) with federal laws, rules, and regulations does not by itself fall within 3 the scope of the statutory phrase ‘acting under’ a federal ‘official.’ And that is so even 4 if the regulation is highly detailed and even if the private firm’s activities are highly 5 supervised and monitored.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 6 153 (2007). 7 Defendants argue that the government regulations and public directives 8 implemented during the COVID-19 pandemic are tantamount to directions from a 9 federal officer. For instance, Defendants argue that federal authorities have been 10 “explicitly guiding” Defendants, as members of the nation’s critical infrastructure, in 11 their operational decisions related to clinical pandemic response in nursing homes and 12 residential care facilities. Opp’n at 20. Facilities were instructed on, amongst other 13 things, which patients and staff to test for COVID-19, under what circumstances to 14 use and how to conserve PPE, when to permit staff who had COVID-19 to return to 15 work, how to mitigate staff shortages including when to permit COVID-19 positive 16 but asymptomatic staff to return to work, and how to handle the isolation of residents 17 infected with COVID-19 and those under investigation for COVID-19. Id. Defendants 18 argue that these very detailed clinical directives and instructions represented a marked 19 departure from any regulatory structure that may have existed before the pandemic, as 20 these entities acted under federal authority to assist the government in combatting the 21 pandemic. Id. 22 In Saldana v. Glenhaven Healthcare LLC, 20-cv-5631, 2020 WL 6713995, at 23 *3 (C.D. Cal. Oct. 14, 2020), defendants argued that “in taking steps to prevent the 24 spread of COVID-19, [they] did so in compliance with CDC and CMS directives, 25 which were aimed at helping achieve the federal government’s efforts at stopping or 26 limiting the spread of COVID-19.” The court found that such general regulations and 27 public directives were “insufficient” to confer jurisdiction under the federal officer 28 1 removal statute. Id. Similarly, while the government and the CDC may have had 2 highly detailed guidance which was specifically tailored for hospitals, nursing homes, 3 or other critical frontline workers, this Court is not persuaded that the CDC’s various 4 and ongoing guidance in response to the pandemic means that Defendant was “acting 5 under” a federal official. “[M]erely being subject to federal regulations or performing 6 some functions that a government agency controls is not enough to transform a private 7 entity into a federal officer.” Panther Brands, LLC, v. Indy Racing League, LLC, 927 8 F.3d 586, 590 (7th Cir. 2016). 9 Furthermore, there is no causal link between Defendants’ actions and Plaintiffs’ 10 claims. Rather, Plaintiffs’ claims are directed towards the inactions of Defendant. This 11 distinction serves to weaken Defendants’ federal officer argument. As this finding 12 precludes federal officer jurisdiction, the Court need not reach the other elements of 13 the statute to conclude that removal is not justified on this basis. Nava v. Parkwest 14 Rehab. Ctr. LLC, No. 220CV07571ODWAFMX, 2021 WL 1253577, at *2 (C.D. Cal. 15 Apr. 5, 2021). 16 Accordingly, the Court finds that Defendant has not established that removal 17 was proper based on the federal officer removal statute. 18 B. Complete Preemption 19 Under the doctrine of complete preemption, a state law claim can be considered 20 to arise under federal law if “Congress intended the scope of federal law to be so 21 broad as to entirely replace any state-law claim.” Retail Prop. Tr. v. United Bhd. of 22 Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting Dennis v. 23 Hart, 724 F.3d 1249, 1254 (9th Cir. 2013)). Complete preemption that confers federal 24 question jurisdiction is very rare. See City of Oakland v. BP PLC, 969 F.3d 895 (9th 25 Cir. 2020) (“The Supreme Court has identified only three statutes that meet this 26 criteria [for complete preemption].”). 27 In the Ninth Circuit, “complete preemption for purposes of federal jurisdiction 28 1 under § 1331 exists when Congress: (1) intended to displace a state-law cause of 2 action, and (2) provided a substitute cause of action.” City of Oakland v. BP PLC, 969 3 F.3d 895, 905–06 (9th Cir. 2020) (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 4 1057 (9th Cir. 2018)). The PREP Act does not satisfy the Ninth Circuit’s two-part 5 complete preemption test. See, e.g., Stone v. Long Beach Healthcare Ctr., LLC, CV 6 21-326-JFW (PVCx), 2021 WL 1163572, at *5–7 (C.D. Cal. Mar. 26, 2021) 7 (collecting cases and concluding PREP Act does not satisfy Ninth Circuit complete 8 preemption test); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV-09746-SB- 9 PVC, 2021 WL 911951, at *3-*6 (C.D. Cal. Mar. 1, 2021) (finding no complete 10 preemption). The Court acknowledges that the Garcia and Rachal Courts did find 11 complete preemption. But such courts solely deferred to opinions of the HHS 12 Secretary, and did not address the Ninth Circuit’s two-part test, so they are not 13 persuasive. 14 If Defendants believe that some or all of Plaintiffs’ state law claims are barred 15 by the PREP Act, filing a demurrer in state court is an option available to Defendants. 16 If the state court dismisses the state law claims, Plaintiffs could then decide whether 17 they wish to file claims under the PREP Act in the U.S. District Court for the District 18 of Columbia, the court with exclusive jurisdiction over such claims. See 42 U.S.C. § 19 247d-6d(e)(1). 20 The Court joins its previous decisions in Todd M. Swick v. Canoga Healthcare, 21 Inc. et al (CV 21-02876-AB-RAOx) and Domenic Romeo v. Canoga Healthcare, Inc. 22 (CV 21-02918-AB-RAOx), as well as the weight of district court opinion that the 23 PREP Act does not completely preempt the claims herein, and thus provides no basis 24 for removal of this action. 25 C. Imbedded Federal Question 26 Defendants also argue that the Grable doctrine applies. Under the Grable 27 doctrine, in order for a state law claim to provide federal question jurisdiction, the 28 1 “state law claim [must] necessarily raise a stated federal issue, actually disputed and 2 substantial, which a federal forum may entertain without disturbing any 3 congressionally approved balance of federal and state judicial responsibilities.” 4 Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 5 (2005). The Supreme Court has stated “federal jurisdiction over a state law claim will 6 lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and 7 (4) capable of resolution in federal court without disrupting the federal-state balance 8 approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “[I]t is not 9 enough that the federal issue be significant to the particular parties in the immediate 10 suit; that will always be true when the state claims ‘necessarily raise[s]’ a disputed 11 federal issue, as Grable separately requires. The substantiality inquiry under Grable 12 looks instead to the importance of the issue to the federal system as a whole.” Gunn, 13 568 U.S. at 260. 14 Plaintiffs point out that the Grable doctrine relies on the claims made by the 15 plaintiff, not the defenses raised by the defendant. Here, Plaintiffs have raised a 16 standard medical negligence and elder abuse claim arising under California law and 17 that does not necessarily raise a federal issue. Defendants are the only parties that 18 raise a federal issue, for example in asserting their immunity defense under the PREP 19 Act. Accordingly, the Court does not have subject matter jurisdiction based on an 20 embedded federal question under Grable. Accord Winn v. California Post Acute LLC, 21 No. CV2102854PAMARX, 2021 WL 1292507, at *5 (C.D. Cal. Apr. 6, 2021). 22

V. CONCLUSION

23 For the foregoing reasons, the Court finds that Defendant has not established 24 that this Court has subject matter jurisdiction over Plaintiffs’ claims. The Court 25 therefore GRANTS Plaintiffs’ Motion for Remand and ORDERS the Clerk of Court 26 to remand this matter to the Superior Court of California, County of Los Angeles. In 27 light of the Court's conclusion that it lacks subject matter jurisdiction, Defendants’ 28 1 | pending Motion to Dismiss is not for this Court to decide, and is 2 | therefore DENIED, without prejudice. 3 IT IS SO ORDERED.

5 | Dated: September 03, 2021 6 HONORABLE ANDRE BIROTTE JR.

UNITED STATES DISTRICT COURT JUDGE

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