1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 GABRIELINO-TONGVA TRIBE, Case No. 2:21-cv-05871-MCS-DFM 11 Plaintiff, ORDER GRANTING MOTION TO 12

REMAND (ECF NO. 12) AND

13 v. DENYING MOTION TO

CONSOLIDATE (ECF NO. 21)

14

JONATHAN STEIN, LAW OFFICES

15 OF JONATHAN STEIN, ST.

MONICA DEVELOPMENT

16

COMPANY,

17 Defendants. 18

19 Plaintiff, the Gabrielino-Tongva Tribe (“the Tribe”), moves to remand this action 20 to the Los Angeles County Superior Court. (MTR, ECF No. 12.) Defendants Jonathan 21 Stein, the Law Offices of Jonathan Stein, and the St. Monica Development Company, 22 oppose the MTR and the Tribe has replied. (Opp’n, ECF No. 18; Reply, ECF No. 19.) 23 Defendants have also filed a Motion to Consolidate this and a related case before the 24 Court (2:21-cv-05653), to which the Tribe has replied. (ECF Nos. 21–22.) The Court 25 has deemed this matter appropriate for decision without oral argument. See Fed. R. Civ. 26 P. 78; C.D. Cal. R. 7-15. For the following reasons, the motion to remand is GRANTED 27 and Motion to Consolidate Cases is DENIED. 28 1 I. BACKGROUND 2 This case first began in November 2006 when Plaintiff filed a lawsuit against 3 Jonathan Stein in the Los Angeles Superior Court alleging, inter alia, identity theft and 4 defrauding the Tribe out of more than $20,000,000. (Memorandum of Points and 5 Authorities in Support of the Motion (“Plaintiff’s Memorandum”), ECF No. 12-1.) 6 After thirteen years, on August 27, 2019, the Tribe obtained a judgment of 7 $20,411,067.23 in compensatory damages and $7,000,000.00 in punitive damages 8 against Defendants. (Id. at 10; Judgment, Ex. A of Plaintiff’s Supplemental Request 9 for Judicial Notice - Part 1, ECF No. 12-2 at 10–11, 13.1) On the same day, the superior 10 court issued a 138-page Statement of Decision wherein it found Defendants had 11 committed “many incidences of fraud” since “the inception of [Stein’s] relationship 12 with [the Tribe]” and that “[e]vidence of fraud is extensive and at the center of this 13 case.” (Statement of Decision, Ex. 2 of RJN ISO MTR, ECF No. 12-2 ¶ 89 at 53–54.) 14 The Tribe alleges that Stein has since engaged in a wide and extensive range of 15 post-trial misconduct in order to avoid the trial court’s jurisdiction and enforcement of 16 the Judgement (MTR at 13–16), including suing the Tribe in this Court on July 13, 2021 17 and removing the state court case a week later (Id. at 17). (See also ECF No. 1.) Stein 18 claims that the Tribe cannot enforce the state court Judgment, as attempted via written 19 levy instructions to the Los Angeles County Sheriff’s Department, due to the matters at 20 issue here on removal. (Declaration of Paul Young in Support of the Tribe’s MTR (“PY 21

22

23 1 The Court takes judicial notice of the Tribe’s Requests for Judicial Notice in support of (“RJN ISO”) Plaintiff’s MTR, which are all matters of public record pursuant to 24 Fed. R. Evid. 201(b). (Exs. 1–41 ISO RJN, ECF No. 12-2). The Court “may take judicial notice of court filings and other matters of public record.” Reyn's Pasta Bella, 25 LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); see McFall v. Cty. Of San Joaquin, No. 2:17-cv-0847-KJM-AC, 2018 WL 5619960 at *2 (E.D. Cal. Oct. 30, 26 2018) (taking judicial notice of “Statements of Information ... filed with the California 27 Secretary of State”); see also Global BTG LLC v. National Air Cargo, Inc., No. CV 11-1657 RSWL (JCGx), 2011 WL 2672337 at *1 (C.D. Cal. June 29, 2011) (taking 28 judicial notice of “articles of organization”). Thus, these RJNs are GRANTED. 1 Decl.”) ¶¶ 6-8, ECF No. 12-6.) 2 II. LEGAL STANDARD 3 Federal courts are of limited jurisdiction, having subject-matter jurisdiction only 4 over matters authorized by the Constitution and Congress. Kokkonen v. Guardian Life 5 Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a civil action in 6 state court to federal court if the federal court has original jurisdiction. 28 U.S.C. 7 § 1441(a). Federal courts have original jurisdiction where an action arises under federal 8 law or where each plaintiff’s citizenship is diverse from each defendant’s citizenship 9 and the amount in controversy exceeds $75,000. Id. §§ 1331, 1332(a). 10 “The removal statute is strictly construed against removal jurisdiction,” and 11 “[t]he defendant bears the burden of establishing that removal is proper.” Provincial 12 Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). If a 13 defendant fails to meet its burden of establishing subject-matter jurisdiction, the suit is 14 remanded. 28 U.S.C. § 1447(c). 15 III. DISCUSSION 16 On removal, Defendants invoke federal question jurisdiction under the Employee 17 Retirement Income Security Act of 1974 (“ERISA”) and Section 401 of the Internal 18 Revenue Code. (Notice of Removal ¶¶ 2, 17, ECF No. 1.) Instead of attaching a copy 19 of the Tribe’s operative state court complaint to their Notice, Defendants included a 20 copy of the Notice of Levy that the Tribe delivered to the Los Angeles County Sherrif’s 21 Department (“Sheriff’s Levy Notice”) (ECF No. 1-1) and the Garnishee Memo that 22 Fidelity Brokerage Service, LLC filled out thereafter (ECF No. 1-2.). The documents’ 23 attachment placed levies on Stein’s money and financial assets, including any accounts 24 where Stein and his Spouse were signatories. (Notice of Removal, Exs. 1–2, ECF Nos. 25 1-1 and 1-2.) The documents, listing the Tribe as the Judgment Creditor, executed the 26 Levies against St. Monica Development Company, LLC on June 29 and 30, 2021. 27 (Notice of Removal, Exs. 1–2, ECF Nos. 1-1 and 1-2.) 28 Defendants claim that the Sheriff’s Levy Notice and Garnishee Memo 1 (collectively, the “Levies”) located and restricted certain ERISA-protected plans and 2 legal entities, thus triggering numerous federal questions. (Notice of Removal ¶¶ 4–8, 3 10.) They also claim that the Levies are being enforced by an unlawful enactment that 4 took place in September 2021, i.e. “California’s brand new, pro-creditor scheme for 5 bonding around exemption claims and third party claims”, and that it creates 6 irreconcilable conflicts with ERISA and § 1132. (Id. ¶ 12.) 7 The Tribe asserts that its claims against Defendants do not arise under federal 8 law because the Levies are simply seeking to enforce the judgment on the state law 9 based causes of action. (MTR at 17, 21–25.) The Tribe’s claims were filed nearly 10 fifteen years ago and were adjudicated by the trial court roughly two years ago. (Id.) As 11 such, they can only provide a federal defense to the Levies, at best. (Id.) Indeed, the 12 Levies are simply seeking to enforce the judgment on the state law claims. Thus, the 13 Levies cannot confer federal jurisdiction under the well-pleaded complaint rule. 14 Relatedly, the Tribe asserts that the Levies arise from state statutes, such as California’s 15 Enforcement of Judgments Law (“EJL”). (Id. at 17, 18–20.) 16 1. The Well-Pleaded Complaint Rule2 17 District courts have original jurisdiction over “all civil actions arising under the 18 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Under the well- 19 pleaded complaint rule, “a suit arises under federal law for 28 U.S.C. § 1331 purposes 20 only when the plaintiff’s statement of his own cause of action shows that it is based 21

22 2 The Tribe argues that, as a threshold matter, Defendants untimely removed this 23 action because it was originally filed in state court in November 2006. (MTR at 20– 21.) Consequently, the 30 day removal deadline expired more than fourteen and a half 24 years ago. (Id.) The ultimate consideration that will reveal the validity of this argument is the answer to the question of whether Defendants’ claim that the case 25 became removable once ERISA laws were implicated (i.e. when the Tribe executed the Levies to locate and liquidate Stein’s ERISA plan accounts) has merit. 26

27 For the reasons discussed below, the Court finds that the well-pleaded complaint rule was not implicated and that therefore the action was not removable in the first place. 28 Accordingly, the issue of timeliness is VOID. 1 upon federal law.” Hawaii ex rel Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 2 (9th Cir. 2014) (internal quotations and citations omitted). “It is settled law that a case 3 may not be removed to federal court on the basis of a federal defense, including a 4 defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, 5 and even if both parties concede that the federal defense is the only question truly at 6 issue.” Dahl v. Rosenfeld, 316 F.3d 1074, 1077 (9th Cir. 2003) (internal quotations and 7 citations omitted). 8 The Court agrees with the Tribe’s suggestion that Defendants’ Notice of Removal 9 does not point to the Tribe’s well-pleaded complaint or any other document containing 10 the Tribe’s statement of its claim; this finding largely disfavors Defendants’ argument 11 that removal is proper here. (See Motion at 22.) The removal, which alleges that the 12 Levies “together facially assert a federal claim under the well-pleaded complaint rule” 13 (Notice of Removal ¶ 10), and that the Garnishment constitutes a well-pleaded 14 complaint “that falls under ERISA § 502(a) [29 USC § 1132(a)]”, is both procedurally 15 and factually improper. (See Opposition at 7, ECF No. 18.). 16 First, although Defendants claim that the “initiation of the Garnishment raised 17 federal questions for the first time” in the underlying state court case, Defendants do 18 not cite any law to support a finding that a judgment creditor’s notice of levy to a 19 sheriff’s department to execute a money judgment can qualify as an ERISA cause of 20 action. (See Opposition at 9, 12–14.) Likewise, Defendants offer no cognizable law or 21 allegations to support their statement that “the Garnishment attempts to raid” the ERISA 22 protected plans at issue by making “involuntary transfers” of its accounts as involuntary 23 beneficiaries of Stein with “derivative standing” under ERISA. (Id. at 11–12.) 24 Second, the Sheriff’s Levy lists the Tribe as a judgment creditor (ECF No. 1-1 at 25 1), not a beneficiary or any type of recipient to the ERISA plans. The Garnishee Memo, 26 which lists Fidelity Brokerage Services, LLC as the Garnishee that is acting on behalf 27 of a judgement creditor (the Tribe), specifically instructs the sheriffs to levy all of 28 Defendants’ intangibles, financial assets, and/or accounts per California Code of Civil 1 Procedure § 700.140. (Id. at 2.) Indeed, a plain reading of the Levies point not to a cause 2 of action nor a potential ERISA claim, but instead suggests that the Tribe is seeking to 3 enforce a valid state court judgment against the debtors, Defendants, pursuant to a 4 California statute that outlines the proper procedures for officers to execute levies. See 5 e.g. CA Civ. Proc. § 700.140(a) (“[T]o levy upon a deposit account, the levying officer 6 shall personally serve a copy of the writ of execution and a notice of levy on the 7 financial institution with which the deposit account maintained.”); CA Civ. Proc. § 8 700.140(d)-(e) (instructing financial institutions on the parameters by which they must 9 adhere to officer levies when withdrawing money from debtor accounts). 10 Defendants’ mischaracterizations of the law and facts are far from the legal 11 standard required to raise an ERISA cause of action. Section 502 of ERISA authorizes 12 civil action by a participant or beneficiary to recover benefits due under the terms of a 13 plan, to enforce their rights under the terms of the plan, or to clarify their rights to future 14 benefits under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B). “[U]nder Section 502, 15 the ERISA civil enforcement mechanism has ‘extraordinary pre-emptive power’ and 16 ‘converts an ordinary state common law complaint into one stating a federal claim for 17 purposes of the well-pleaded complaint rule.’” Massey v. Riverside Univ. Health Sys. – 18 Med. Ctr., 2020 WL 6135071, at *2 (C.D. Cal. Oct. 16, 2020) (quoting Metro. Life Ins. 19 Co. v. Taylor, 481 U.S. 58, 65–66 (1987)). “To determine whether a state law claim is 20 within the scope of Section 502(a)(1)(B) and therefore completely preempted by 21 ERISA, the Supreme Court has articulated a two-part inquiry: (1) whether ‘an 22 individual, at some point in time, could have brought his claim under ERISA § 23 502(a)(1)(B),’ and (2) whether any ‘legal duty (state or federal) independent of ERISA 24 or the plan terms is violated.’” Id. (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 25 208 (2004)). “The Ninth Circuit ‘strictly construe[s] the removal statute against removal 26 jurisdiction,’ and [f]ederal jurisdiction must be rejected if there is any doubt as to the 27 right of removal in the first instance.’” Id. (quoting Gaus v. Miles, Inc., 980 F.2d 564, 28 566 (9th Cir. 1992)). Here, there is significant doubt as to the right of removal on these 1 grounds for the reasons stated above. 2 The Tribe’s complaint suggests that neither parts of the Davila test could be 3 implicated, and Defendants have not persuaded the Court otherwise. Critically, 4 Defendants’ reliance on caselaw does not establish that the Tribe is a beneficiary or 5 assignee of the plans at issue. (See generally Opp’n at 16–25.) “A ‘beneficiary’ means 6 a person designated by a participant, or by the terms of an employee benefit plan, who 7 is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8). As discussed 8 above, the Court declines to read the Levies as seeking entitlement to Stein’s benefits 9 under the alleged ERISA plans at issue. None of the causes of action that the Tribe 10 alleged in its Fourth Amended Complaint, to which it ultimately received a favorable 11 judgment, included any claims related to an ERISA claim wherein the Tribe claimed to 12 be a potential beneficiary under Stein’s plans. (Statement of Decision ¶ 2, RJN Part 1, 13 Ex. 2, ECF No. 12-2 at 17.) Indeed, the Court agrees with the Tribe that the record 14 simply suggests that “the Tribe seeks to enforce its own rights under the state court 15 judgment and pursuant to the EJL.” (See Reply at 6.) 16 The Court Cannot conclude that the Exhibits attached to Defendants’ Notice of 17 Removal give rise to an ERISA cause of action. Thus, the Tribe’s request for remand is 18 GRANTED. 19 2. Attorney’s Fees 20 Pursuant to 28 U.S.C. § 1447(c) and Federal Rule of Civil Procedure 11, the Tribe 21 requests attorney’s fees associated with bringing the Motion. (MTR at 31–32.) “Absent 22 unusual circumstances, courts may award attorney’s fees under § 1447(c) only where 23 the removing party lacked an objectively reasonable basis for seeking removal.” Martin 24 v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). A court may issue sanctions under 25 Rule 11(c) if the court determines that a filing was presented for an improper purpose 26 or is factually or legally frivolous. Fed. R. Civ. P. 11(b)–(c). 27 The Court finds that removal was objectively unreasonable or frivolous in light 28 of the unique circumstances surrounding this case. Defendants have engaged in a series 1 of fraudulent conduct, as found by the trial court in its Statement of Decision. (MTR at 2 10–11; RJN Ex. 2, ¶ 88, ECF No. 12-2 at 53.) Defendants have also engaged in a series 3 of post-judgment misconduct, including multiple attempts to take jurisdiction from the 4 state court by filing cases in other courts (this Court included). (MTR at 13–17); (See 5 also Law Offices of Jonathan Stein, P.C. Defines Benefit Plan et al v. Gabrielino- 6 Tongva Tribe (“Tribe I”), No. 2:21-cv-05653-MCS-DFM) (related case filed with this 7 Court on July 13, 2021)). 8 Indeed, these circumstances establish evidence of conduct so untenable that fees 9 or sanctions are appropriate for both of Defendants’ attorneys. The Court GRANTS the 10 Tribe’s request for attorney’s fees. 11 3. Defendants’ Motion to Consolidate 12 Defendants alternatively request the Court to consolidate Tribe I and this case 13 (“Tribe II”), alleging that the wrongdoing in both actions relating to the Levies reach 14 the same ERISA-protected accounts and therefore trigger the same federal questions. 15 (Memorandum of Motion to Consolidate Cases, ECF No. 21-1 at 4.) Defendants’ 16 request is DENIED because, as stated supra, the Court declines to hold that the exhibits 17 attached to the Notice of Removal establish a federal question. 18 IV. CONCLUSION 19 The Tribe’s Motion to remand and for attorneys fees is GRANTED. This matter 20 is REMANDED to the Superior Court of California for the County of Los Angeles 21 Case No. BC361307. Defendants’ dual motions to consolidate, here (ECF No. 21) and 22 in Tribe I (ECF Nos. 22, 27), are DENIED as moot. The Clerk of Court shall close the 23 case. 24 IT IS SO ORDERED. 25 Dated: October 14, 2021 26

MARK C. SCARSI

27 UNITED STATES DISTRICT JUDGE 28