1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ESTATE OF MELVIA JONES, et al., Case No. 2:21-cv-05417-AB-AGR

11 Plaintiffs, ORDER GRANTING MOTION FOR

REMAND AND DENYING

12 v. WITHOUT PREJUDICE MOTION

TO DISMISS

13

BEVERLY WEST HEALTHCARE,

LLC, et al., 14

Defendants. 15 16 17 Before the Court is Plaintiff Estate of Melvia Jones, et al.’s (“Plaintiffs”) 18 Motion for Remand (“Motion,” Dkt. No. 16). Defendant Beverly West Healthcare, 19 LLC (“Defendant”) filed an opposition and Plaintiffs filed a reply. The Motion is 20 GRANTED. 21 I. BACKGROUND 22 Plaintiffs filed this action in Los Angeles County Superior Court, alleging that 23 Defendant, a 24-hour skilled nursing facility, is responsible for the death of decedent 24 Melvia Jones, who lived there, due to COVID-19. See generally Compl. (Dkt. No. 1- 25 1). The Complaint alleges that Ms. Jones received substandard care with respect to her 26 nourishment and general treatment, that Defendant refused to send her to the hospital 27 in the weeks prior to her death despite abnormal lab results and an x-ray that indicated 28 pneumonia, and that appropriate measures were not taken to protect her from Covid- 1 19 despite her vulnerability to it. Compl. ¶ 15. Defendant sent Ms. Jones to the 2 hospital on May 26, 2020, and she died the next day apparently from Covid-19. 3 Compl. ¶¶ 15, 19. Plaintiffs allege that Defendant failed to take certain steps to 4 prevent the spread of Covid-19 within the facility, in the following ways: Defendant 5 allowed nurses who tested positive for Covid-19 to work with patients including Ms. 6 Jones; Defendant admitted a Covid-positive patient and failed to inform patients’ 7 families; Defendant failed to notify Ms. Jones or her family of Covid-19 cases in the 8 facility in a timely manner so they could relocate her elsewhere; Defendant failed to 9 test residents for Covid-19 until about May 20, 2020; and Defendant failed to provide 10 sufficient personal protective equipment (“PPE”) for staff. See Compl. ¶ 17. 11 Based on these allegations, the Complaint asserts five causes of action under 12 state law. The first and third claims assert elder abuse and neglect in violation of Cal. 13 Welfare & Institutions Code §§ 15600, et seq., and violation of California’s patients’ 14 bills of rights, Cal. Health & Safety Code § 1430(b), respectively. Plaintiffs’ three 15 remaining state-law claims allege negligence and/or negligence per se, wrongful 16 death, and concealment. 17 Defendant removed the action asserting subject matter jurisdiction on three 18 grounds: (1) the federal officer statute 28 U.S.C. § 1442(a)(1), given the CDC’s 19 ongoing directives to respond to and control the COVID-19 pandemic; (2) complete 20 preemption pursuant to the PREP Act, 42 U.S.C. §§ 247d-6d, 247d-6e; and (3) the 21 Grable doctrine. See Notice of Removal (“NOR,” Dkt. No. 1). Plaintiffs move for 22 remand, arguing that none of these bases of jurisdiction apply. 23 II. LEGAL STANDARD 24 A defendant may remove a civil action filed in state court to federal district 25 court when the federal court has original jurisdiction over the action. 28 U.S.C. 26 §1441(a). “The burden of establishing jurisdiction falls on the party invoking the 27 removal statute, which is strictly construed against removal.” Sullivan v. First 28 Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987) (internal citations omitted); 1 see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). “The ‘strong 2 presumption’ against removal jurisdiction means that the defendant always 3 has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980. F.2d 4 564, 566 (9th Cir. 1992). If any doubt exists as to the right of removal, federal 5 jurisdiction must be rejected. Id. at 566–67; see also Hunter v. Philip Morris USA, 6 582 F.3d 1039, 1042 (9th Cir. 2009) (citing Id. at 566) (“[T]he court resolves all 7 ambiguity in favor of remand to state court.”). 8 III. JUDICIAL NOTICE 9 The Court may take judicial notice of facts not subject to reasonable dispute 10 that are either “generally known” in the community, or “capable of accurate and ready 11 determination” by reference to sources whose accuracy cannot be reasonably 12 questioned. Fed. R. Evid. 201(b). 13 Here, Defendants request that the Court take judicial notice of 34 documents 14 that reflect official acts of the United States Health and Human Services Secretary 15 (“HHS”) and his office, the official acts of federal state administrative agencies such 16 as the Center for Disease Control (“CDC”), the Centers for Medicare and Medicaid 17 Services (“CMS”), the California Department of Public Health (“CDPH”), and court 18 filings from similar cases. See Def’s Request for Judicial Notice (“RJN,” Dkt. No. 21). 19 “Under Rule 201, the court can take judicial notice of ‘public records and government 20 documents available from reliable sources on the internet’ such as websites run by 21 government agencies.” U.S. ex rel. Modglin v. DJO Global Inc., 48 F. Supp.3d 1362, 22 1381 (C.D. Cal. 2014). Because these documents are matters of public record and 23 available from reliable sources on the internet, the Court finds that they are not subject 24 to reasonable dispute. Thus, Defendant’s request is GRANTED. 25 IV. DISCUSSION 26 This Court and many others in the Central District of California have previously 27 addressed these jurisdictional questions in the context of state law tort suits arising out 28 of COVID-19 deaths in care facilities. All but one case in the Central District have 1 determined that the federal courts lack jurisdiction under any of the three theories 2 presented by Defendant, and therefore that removal is improper and remand is 3 required. See Nava v. Parkwest Rehab. Ctr. LLC, No. 20-CV-07571-ODW-AFMX, 4 2021 WL 1253577, at *4 (C.D. Cal. Apr. 5, 2021) (Wright, J.); Padilla v. Brookfield 5 Healthcare Ctr., No. CV 21-2062-DMG (ASX), 2021 WL 1549689, at *6 (C.D. Cal. 6 Apr. 19, 2021) (Gee, J.); Lyons v. Cucumber Holdings, LLC, No. CV-20-10571-JFW- 7 JPRX, 2021 WL 364640, at *6 (C.D. Cal. Feb. 3, 2021) (Walter, J.); Smith v. Colonial 8 Care Ctr., Inc., No. 2:21-CV-00494-RGK-PD, 2021 WL 1087284, at *9 (C.D. Cal. 9 Mar. 19, 2021) (Klausner, J.); Thomas v. Century Villa Inc., No. 2:21-CV-03013- 10 MCS-KS, 2021 WL 2400970, at *7 (C.D. Cal. June 10, 2021) (Scarsi, J.); Golbad v. 11 GHC of Canoga Park, No. 221CV01967ODWPDX, 2021 WL 1753624, at *3 (C.D. 12 Cal. May 4, 2021) (Wright, J.); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV- 13 09746-SB-PVC, 2021 WL 911951, at *6 (C.D. Cal. Mar. 1, 2021) (Blumenfeld, J.); 14 Winn v. California Post Acute LLC, No. CV2102854PAMARX, 2021 WL 1292507, 15 at *5 (C.D. Cal. Apr. 6, 2021) (Anderson, J.); Stone v. Long Beach Healthcare Ctr., 16 LLC, No. CV 21-326-JFW(PVCX), 2021 WL 1163572, at *8 (C.D. Cal. Mar. 26, 17 2021) (Walter, J.); Jackie Saldana v. Glenhaven Healthcare LLC, No. CV-20-5631- 18 FMO-MAAX, 2020 WL 6713995, at *3 (C.D. Cal. Oct. 14, 2020) (Olguin, J.); Martin 19 v. Serrano Post Acute LLC, No. CV 20-5937 DSF (SKX), 2020 WL 5422949, at *3 20 (C.D. Cal. Sept. 10, 2020) (Fischer, J.); Romeo v. Canoga Healthcare, Inc., 2021 WL 21 3418730, at *3 (C.D. Cal. Aug. 5, 2021) (Birotte, J.); Estate of Joseph Benjamin 22 Serrano, et al. v. San Antonio Acute LLC, et al., Case No. EDCV 21-1169JGB 23 (SHKx) (C.D. Cal. July 21, 2021) (Bernal J.); but see Garcia v. Welltower OpCo Grp. 24 LLC, No. SACV2002250JVSKESX, 2021 WL 492581, at *7 (C.D. Cal. Feb. 10, 25 2021) (Selna, J.) (deferring to OGC Advisory Opinion). 26 The overwhelming majority of district courts nationwide have likewise found 27 that federal courts lack jurisdiction under these theories. See Mot. fn. 2 and Reply pp. 28 3-5 (citing cases throughout the country finding no jurisdiction);but see Rachal v. 1 Natchitoches Nursing & Rehab Center LLC, Civil Docket No. 1:21-CV-00334 *11 2 (W.D. La. April 30, 2021) (deferring to OCG Advisory Opinion). 3 That so many courts have ruled the same way is compelling. The Court explains 4 below why it declines to follow the reasoning of Garcia and Rachal. Once again, the 5 Court finds the weight of opinion of its sister courts persuasive, and accordingly this 6 Order relies on them. 7 A. The Federal Officer Removal Statute Does Not Establish Jurisdiction. 8 Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the 9 removing party] is a ‘person’ within the meaning of the statute; (b) there is a causal 10 nexus between its actions, taken pursuant to a federal officer’s directions, and 11 plaintiff’s claims; and (c) it can assert a ‘colorable federal defense.’” Fidelitad, Inc. v. 12 Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). This is an exception to the well- 13 pleaded complaint rule, which typically requires a federal question to be pleaded in 14 the complaint in order for the court to have subject matter jurisdiction based on a 15 federal question. See N.G. v. Downey Reg’l Med. Ctr., 140 F.Supp.3d 1036, 1039 16 (C.D. Cal. 2015). 17 There is no dispute that the removing parties are persons for purposes of the 18 statute. The next inquiry is whether Defendants acted “pursuant to a federal officer’s 19 directions,” whether there is a “causal nexus” between Defendant’s actions and 20 Plaintiffs’ claims, and whether Defendants can assert a colorable federal defense. 21 Defendants point to government regulations and public directives regarding the 22 response to the COVID-19 pandemic. The court in Fidelitad noted that, “[f]or a 23 private entity to be acting under a federal officer, the private entity must be involved 24 in an effort to assist, or to help carry out, the duties or tasks of the federal superior.” 25 Fidelitad, Inc., 904 F.3d at 1095. Further, a “private firm’s compliance (or 26 noncompliance) with federal laws, rules, and regulations does not by itself fall within 27 the scope of the statutory phrase ‘acting under’ a federal ‘official.’ And that is so even 28 if the regulation is highly detailed and even if the private firm’s activities are highly 1 supervised and monitored.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 2 153 (2007). 3 Defendants argue that the government regulations and public directives 4 implemented during the COVID-19 pandemic are tantamount to directions from a 5 federal officer. For instance, Defendants argue that federal authorities have been 6 “explicitly guiding” Defendants, as members of the nation’s critical infrastructure, in 7 their operational decisions related to clinical pandemic response in nursing homes and 8 residential care facilities. Opp’n at 20. Facilities were instructed on, among other 9 things, which patients and staff to test for COVID-19, under what circumstances to 10 use and how to conserve PPE, when to permit staff who had COVID-19 to return to 11 work, how to mitigate staff shortages including when to permit COVID-19 positive 12 but asymptomatic staff to return to work, and how to handle the isolation of residents 13 infected with COVID-19 and those under investigation for COVID-19. Id. Defendants 14 argue that these very detailed clinical directives and instructions represented a marked 15 departure from any regulatory structure that may have existed before the pandemic, as 16 these entities acted under federal authority to assist the government in combatting the 17 pandemic. Id. 18 In Saldana v. Glenhaven Healthcare LLC, 20-cv-5631, 2020 WL 6713995, at 19 *3 (C.D. Cal. Oct. 14, 2020), defendants argued that “in taking steps to prevent the 20 spread of COVID-19, [they] did so in compliance with CDC and CMS directives, 21 which were aimed at helping achieve the federal government’s efforts at stopping or 22 limiting the spread of COVID-19.” The court found that such general regulations and 23 public directives were “insufficient” to confer jurisdiction under the federal officer 24 removal statute. Id. Similarly, while the government and the CDC may have had 25 highly detailed guidance which was specifically tailored for hospitals, nursing homes, 26 or other critical frontline workers, this Court is not persuaded that the CDC’s various 27 and ongoing guidance in response to the pandemic means that Defendant was “acting 28 1 under” a federal official. “[M]erely being subject to federal regulations or performing 2 some functions that a government agency controls is not enough to transform a private 3 entity into a federal officer.” Panther Brands, LLC, v. Indy Racing League, LLC, 927 4 F.3d 586, 590 (7th Cir. 2016). 5 Furthermore, there is no causal link between Defendant’s actions and Plaintiffs’ 6 claims. Rather, Plaintiffs’ claims are directed towards the inactions of Defendant. This 7 distinction serves to weaken Defendant’s federal officer argument. As this finding 8 precludes federal officer jurisdiction, the Court need not reach the other elements of 9 the statute to conclude that removal is not justified on this basis. Nava v. Parkwest 10 Rehab. Ctr. LLC, No. 2:20-CV-07571-ODW-AFMX, 2021 WL 1253577, at *2 (C.D. 11 Cal. Apr. 5, 2021). 12 Accordingly, the Court finds that Defendant has not established that removal 13 was proper based on the federal officer removal statute. 14 B. The PREP Act Does Not Completely Preempt State Law. 15 Under the doctrine of complete preemption, a state law claim can be considered 16 to arise under federal law if “Congress intended the scope of federal law to be so 17 broad as to entirely replace any state-law claim.” Retail Prop. Tr. v. United Bhd. of 18 Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting Dennis v. 19 Hart, 724 F.3d 1249, 1254 (9th Cir. 2013)). Complete preemption that confers federal 20 question jurisdiction is very rare. See City of Oakland v. BP PLC, 969 F.3d 895 (9th 21 Cir. 2020) (“The Supreme Court has identified only three statutes that meet this 22 criteria [for complete preemption].”). 23 In the Ninth Circuit, “complete preemption for purposes of federal jurisdiction 24 under § 1331 exists when Congress: (1) intended to displace a state-law cause of 25 action, and (2) provided a substitute cause of action.” City of Oakland v. BP PLC, 969 26 F.3d 895, 905–06 (9th Cir. 2020) (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 27 1057 (9th Cir. 2018)). The PREP Act does not satisfy the Ninth Circuit’s two-part 28 1 complete preemption test. See, e.g., Stone v. Long Beach Healthcare Ctr., LLC, CV 2 21-326-JFW (PVCx), 2021 WL 1163572, at *5–7 (C.D. Cal. Mar. 26, 2021) 3 (collecting cases and concluding PREP Act does not satisfy Ninth Circuit complete 4 preemption test); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV-09746-SB- 5 PVC, 2021 WL 911951, at *3-*6 (C.D. Cal. Mar. 1, 2021) (finding no complete 6 preemption). The Court acknowledges that the Garcia and Rachal Courts did find 7 complete preemption. But such courts solely deferred to opinions of the HHS 8 Secretary, and did not address the Ninth Circuit’s two-part test, so they are not 9 persuasive. 10 If Defendants believe that some or all of Plaintiffs’ state law claims are barred 11 by the PREP Act, filing a demurrer in state court is an option available to Defendants. 12 If the state court dismisses the state law claims, Plaintiffs could then decide whether 13 they wish to file claims under the PREP Act in the U.S. District Court for the District 14 of Columbia, the court with exclusive jurisdiction over such claims. See 42 U.S.C. § 15 247d-6d(e)(1). 16 The Court reiterates its previous decisions in Todd M. Swick v. Canoga 17 Healthcare, Inc. et al (CV 21-02876-AB-RAOx) and Domenic Romeo v. Canoga 18 Healthcare, Inc. (CV 21-02918-AB-RAOx), as well as the weight of district court 19 opinion that the PREP Act does not completely preempt the claims herein, and thus 20 provides no basis for removal of this action. 21 C. Jurisdiction Is Not Established Under the Grable Doctrine / Embedded 22 Federal Question. 23 Defendants also argue that the Grable doctrine applies. Under the Grable 24 doctrine, in order for a state law claim to provide federal question jurisdiction, the 25 “state law claim [must] necessarily raise a stated federal issue, actually disputed and 26 substantial, which a federal forum may entertain without disturbing any 27 congressionally approved balance of federal and state judicial responsibilities.” 28 1 Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 2 (2005). The Supreme Court has stated “federal jurisdiction over a state law claim will 3 lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and 4 (4) capable of resolution in federal court without disrupting the federal-state balance 5 approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “[I]t is not 6 enough that the federal issue be significant to the particular parties in the immediate 7 suit; that will always be true when the state claims ‘necessarily raise[s]’ a disputed 8 federal issue, as Grable separately requires. The substantiality inquiry under Grable 9 looks instead to the importance of the issue to the federal system as a whole.” Gunn, 10 568 U.S. at 260. 11 Plaintiffs point out that the Grable doctrine relies on the claims made by the 12 plaintiff, not the defenses raised by the defendant. Here, Plaintiffs have raised a 13 standard medical negligence and elder abuse claim arising under California law and 14 that does not necessarily raise a federal issue. Defendants are the only parties that 15 raise a federal issue, for example in asserting their immunity defense under the PREP 16 Act. Accordingly, the Court does not have subject matter jurisdiction based on an 17 embedded federal question under Grable. Accord Winn v. California Post Acute LLC, 18 No. CV-21-02854-PA-MARX, 2021 WL 1292507, at *5 (C.D. Cal. Apr. 6, 2021). 19

V. CONCLUSION

20 For the foregoing reasons, the Court finds that Defendant has not established 21 that this Court has subject matter jurisdiction over Plaintiffs’ claims. The Court 22 therefore GRANTS Plaintiffs’ Motion for Remand and ORDERS the Clerk of Court 23 to remand this matter to the Superior Court of California, County of Los Angeles. 24 // 25 // 26 // 27

28 In light of the Court’s conclusion that it lacks subject matter jurisdiction, Defendant’s pending Motion to Dismiss is not for this Court to decide, and is therefore DENIED without prejudice.

IT IS SO ORDERED. \, LA

Dated: September 14, 2021 8 HONORABLE ANDRE BIROTTE JR. 9 UNITED STATES DISTRICT COURT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10.