1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ANDRE KOVACS, individually and No. 2:22-cv-00120 WBS AC as heir and successor in 13 interest to LIBERTY KOVACS, deceased, 14 ORDER RE: MOTIONS TO REMAND Plaintiff, AND TO DISMISS COMPLAINT 15 v. 16 MEK NORWOOD PINES, LLC, dba 17 NORWOOD PINES ALZHEIMERS CENTER, and DOES 51-60, 18 Defendants. 19

20 ----oo0oo---- 21 22 Plaintiff brought this action in Sacramento Superior 23 Court against defendant MEK Norwood Pines, LLC (“Norwood”). 24 (Compl. (Docket No. 1-1).) Defendants removed the action to this 25 court on January 19, 2022. (Notice of Removal (“Notice”) (Docket 26 No. 1).) Before the court are defendants’ motion to dismiss 27 plaintiff’s claims and plaintiff’s motion to remand to state 28 1 court. (Docket Nos. 4, 7.)1 2 I. Factual and Procedural Background 3 Norwood operates Norwood Pines Alzheimer’s Center, a 4 skilled nursing facility located in Sacramento, California. 5 (Compl. at ¶¶ 1, 5.) Liberty Kovacs, plaintiff’s mother, was a 6 92-year-old woman with Alzheimer’s who died from COVID-19 while 7 at the facility on December 25, 2020. (See id. at ¶¶ 9, 19-20, 8 25.) Plaintiff alleges Norwood was neglectful and failed to 9 implement reasonable infection control measures to prevent the 10 spread of COVID-19 at Norwood Pines and resulting deaths. (See 11 id. at ¶¶ 27-33.) He asserts claims for (1) violation of 12 California’s Elder Abuse and Dependent Adult Civil Protection 13 Act, Welf. & Inst. Code § 15610.27; (2) violation of resident 14 rights under Health & Safety Code § 1430(b); (3) negligence; and 15 (4) wrongful death. (Compl. at ¶¶ 37-78.)2 16 II. Motion to Remand 17 “Under 28 U.S.C. § 1441, a defendant may remove an 18 action filed in state court to federal court if the federal court 19 would have original subject matter jurisdiction over the action.” 20 Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th 21 Cir. 2009). On a motion to remand, defendants bear the burden of 22

23 1 Because counsel on both sides announced, two court days before the hearing, that due to conflicts they could not attend 24 the April 18, 2022 hearing on this motion –- despite plaintiff’s counsel having previously selected that date for argument -- the 25 court takes the matter under submission without the need for oral argument. 26

27 2 Plaintiff’s complaint also seeks “enhanced remedies” under the negligence claim for alleged “willful misconduct” by 28 defendants. (Id. at ¶¶ 55-66.) 1 showing that federal jurisdiction is appropriate. Geographic 2 Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th 3 Cir. 2010) (citation omitted). Any questions regarding the 4 propriety of removal are resolved in favor of the moving party. 5 Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 6 (9th Cir. 2003). If removal was improper, “the district court 7 lack[s] subject matter jurisdiction, and the action should [be] 8 remanded to the state court.” Toumajian v. Frailey, 135 F.3d 9 648, 653 (9th Cir. 1998) (citing 28 U.S.C. § 1447(c)). 10 Defendants do not contend that diversity jurisdiction 11 exists in this case. (See Notice); 28 U.S.C. § 1332(a). Rather, 12 they removed on the grounds that subject matter jurisdiction 13 exists based on (1) the Federal Officer Removal Statute, 28 14 U.S.C. § 1442(a); (2) the Public Readiness and Emergency 15 Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e; and 16 (3) the existence of an embedded federal question. (Notice.) 17 In nearly identical cases, the Ninth Circuit and 18 district courts within it have repeatedly rejected all three of 19 defendants’ asserted bases for subject matter jurisdiction. Most 20 notable among these is the Ninth Circuit’s decision in Saldana v. 21 Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022).3 See 22 3 Defendants appear to acknowledge that Saldana would 23 foreclose most or all of their asserted bases for federal jurisdiction. (See Opp. at 8-10 (Docket No. 10).) Even so, they 24 ask the court to disregard Saldana on the basis that it “is not yet final as no mandate has issued and defendants in that case 25 have petitioned for rehearing and rehearing en banc.” (See id. at n.1.) 26 Defendants provide no authority for the proposition 27 that a published Ninth Circuit decision is not binding on this court until a mandate has issued. (Id.) However, that 28 proposition has been squarely rejected by the Ninth Circuit, 1 also Martin v. Filart, 20-56067, 2022 WL 576012 (9th Cir. Feb. 2 25, 2022). 3 A. Federal Officer Removal Statute 4 Like here, in Saldana the defendant nursing home argued 5 it qualified for federal officer removal under § 1442(a), 6 pointing to memoranda from federal agencies addressing nursing 7 homes’ response to the COVID-19 pandemic. Saldana, 27 F.4th at 8 684-85; (see Opp. at 23-24 (Docket No. 10)). Like here, it 9 argued that these agencies’ directives demonstrated sufficient 10 federal control to bring it within the statute’s ambit, and 11 further argued that “its designation as part of the national 12 critical infrastructure necessarily means that it acted on behalf 13 of a federal official or that it carried out a government duty.” 14 Saldana, 27 F.4th at 684-85; (see Opp. at 23-25). 15 The Ninth Circuit held, however, that “[w]ithout more 16 than government regulations and recommendations,” the nursing 17 home “failed to establish that it was ‘acting under’ a federal 18 official” or to “identif[y] a duty of the federal government that 19 it performed.” Saldana, 27 F.4th at 685 (quoting Watson v. 20 Philip Morris Cos., Inc., 551 U.S. 142, 153 (2007)). Reasoning 21 that “[i]t cannot be that the federal government’s mere 22 designation of an industry as important -- or even critical -- is 23 sufficient to federalize an entity’s operations and confer 24 federal jurisdiction,” the court further held that the home’s

25 which has “unequivocally stated that a published decision constitutes binding authority and must be followed unless and 26 until it is overruled by a body competent to do so.” In re 27 Zermeno-Gomez, 868 F.3d 1048, 1052-53 (9th Cir. 2017) (addressing argument “that a [Ninth Circuit] decision is not binding on lower 28 courts until the mandate has issued”). 1 “status as a critical infrastructure entity does not establish 2 that it acted under a federal officer or agency, or that it 3 carried out a government duty.” Id. (citations omitted). The 4 court concluded that the home had demonstrated only “that it 5 operated as a private entity subject to government regulations, 6 and that during the COVID-19 pandemic it received additional 7 regulations and recommendations from federal agencies.” Id. at 8 686. It consequently held that § 1442 did not allow for removal, 9 as the home “was not ‘acting under’ a federal officer or agency 10 as contemplated by the federal officer removal statute.” Id. 11 Defendants’ arguments for federal officer removal are 12 substantively identical to those the Ninth Circuit addressed and 13 rejected in Saldana. See also, e.g., Thomas v. Pomona Healthcare 14 & Wellness Ctr., 2:22-cv-179 SVW PLA, 2022 WL 845349, at *4-5 15 (C.D. Cal. Mar. 22, 2022) (rejecting similar invocation of 16 federal officer removal by skilled nursing facility in COVID-19 17 wrongful death suit, relying in part on Saldana); Herring v. 18 Californian-Magnolia Convalescent Hosp., Inc., 22-cv-44 JGB 19 (KKx), 2022 WL 743515, at *4 (C.D. Cal. Mar. 11, 2022) (same). 20 § 1442 therefore cannot serve as a basis for removal here. 21 B. Complete Preemption of PREP Act 22 Defendants also argue federal jurisdiction exists 23 because plaintiff’s claims are completely preempted by the PREP 24 Act. (Opp. at 11-22.) “Complete preemption is ‘really a 25 jurisdictional rather than a preemption doctrine, as it confers 26 exclusive federal jurisdiction in certain instances where 27 Congress intended the scope of a federal law to be so broad as to 28 entirely replace any state-law claim.’” Dennis v. Hart, 724 F.3d 1 1249, 1254 (9th Cir. 2013) (citation omitted). Complete 2 preemption is an exception to the well-pleaded complaint rule 3 wherein “the pre-emptive force of the statute is so 4 ‘extraordinary’ that it ‘converts an ordinary state common-law 5 complaint into one stating a federal claim.’” City of Oakland v. 6 BP PLC, 969 F.3d 895, 905 (9th Cir. 2020) (quoting Caterpillar 7 Inc. v. Williams, 482 U.S. 386, 393 (1987)). 8 In Saldana, the Ninth Circuit specifically held that 9 “the PREP Act is not a complete preemption statute.” Saldana, 27 10 F.4th at 688. Accordingly, federal jurisdiction cannot exist 11 here based on complete preemption. 12 Defendants also argue that, even if the PREP Act is not 13 a complete preemption statute, it preempts claims alleging 14 willful misconduct by creating an exclusive federal cause of 15 action for such claims. (Opp. at 13.) However, Saldana 16 addressed this argument as well: “[F]inding that one claim may be 17 preempted is different than finding that the ‘federal statutory 18 scheme is so comprehensive that it entirely supplants state law 19 causes of action,’ such as the [plaintiffs’] other causes of 20 action for elder abuse, custodial negligence, and wrongful 21 death.” Saldana, 27 F.4th at 688 (citations omitted); see also 22 Caterpillar, 482 U.S. at 392 (“[I]t is now settled law that a 23 case may not be removed to federal court on the basis of a 24 federal defense, including the defense of pre-emption, even if 25 the defense is anticipated in the plaintiff's complaint, and even 26 if both parties concede that the federal defense is the only 27 question truly at issue.”). 28 Accordingly, Saldana held that “the district court’s 1 remand order for lack of federal subject matter jurisdiction 2 based upon complete preemption was proper,” notwithstanding the 3 PREP Act’s provision of an exclusive cause of action for willful 4 misconduct. Saldana, 27 F.4th at 688. Even though plaintiff’s 5 complaint includes allegations of willful misconduct, preemption 6 cannot serve as a basis for federal jurisdiction here. 7 C. Embedded Federal Question 8 Finally, defendants argue that plaintiff’s claims 9 present an embedded question of federal law on the basis that 10 they implicate the PREP Act. (Opp. at 22-23.) Under the 11 embedded federal question doctrine, “the Supreme Court has 12 recognized a ‘special and small category’ of state-law claims 13 that arise under federal law for purposes of § 1331 ‘because 14 federal law is a necessary element of the . . . claim for 15 relief.’” City of Oakland, 959 F.3d at 904 (quoting Empire 16 Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). 17 Saldana addressed and rejected an argument identical to 18 the one defendants pursue here. Noting that “[t]he well-pleaded 19 complaint rule applies when determining whether the embedded 20 federal question doctrine applies,” it observed that “[t]he 21 claims in the complaint [we]re raised under California law and 22 d[id] not raise questions of federal law on the face of the 23 complaint.” Saldana, 27 F.4th at 688. Although the nursing home 24 “s[ought] to raise a federal defense under the PREP Act,” the 25 court explained that “a federal defense is not a sufficient basis 26 to find embedded federal question jurisdiction.” Id. Because 27 the nursing home “d[id] not identify how a right or immunity 28 created by the PREP Act must be an essential element of the 1 willful misconduct claim as stated in the complaint,” the 2 complaint presented no embedded federal question. Id. at 689. 3 Here, defendants do not identify how the PREP Act 4 implicates an essential element of any claim presented in the 5 complaint. Rather, they point to an advisory opinion issued by 6 the Secretary of the United States Department of Health and Human 7 Services asserting that an embedded federal question exists. 8 (Opp. at 22.) As Saldana explained, however, “an agency’s 9 opinion on federal court jurisdiction is not entitled to . . . 10 deference.” Saldana, 27 F.4th at 687; see Thomas, 2022 WL 11 845349, at *3 (Health and Human Services statements do not impact 12 existence of embedded federal question) (collecting cases).4 13 For the reasons stated in Saldana, plaintiff’s 14 complaint does not present an embedded federal question. See 15 also Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393, 413 (3d 16 Cir. 2021) (holding that because “a PREP Act . . . defense is not 17 ‘necessarily raised’ by a well-pleaded state law negligence 18 complaint,” nursing home’s embedded federal question argument 19 failed) (quoting Gunn v. Minton, 568 U.S. 251, 258 (2013)). 20 Accordingly, this basis for federal jurisdiction fails as well. 21 The court will therefore grant plaintiff’s motion to remand. 22 D. Attorney’s Fees 23 Plaintiff also requests that the court award attorneys’ 24 4 Defendants also cite the Secretary’s statement that 25 federal policy interests require “a unified, whole-of-nation response to the COVID-19 pandemic.” (Opp. at 22.) However, the 26 Supreme Court has made clear that an issue does not create an 27 embedded federal question simply because it will further a uniform interpretation of a federal statute. See Merrell Dow 28 Pharm. Inc. v. Thompson, 478 U.S. 804, 815-16 (1986). 1 fees pursuant to 28 U.S.C. § 1447(c). (Mot. at 7.) Section 2 1447(c) provides that “[a]n order remanding the case may require 3 payment of just costs and any actual expenses, including attorney 4 fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). 5 “Absent unusual circumstances, a court may award costs and 6 attorney’s fees under § 1447(c) only where the removing party 7 lacked an objectively reasonable basis for seeking removal.” 8 Grancare, LLC v. Thrower, 889 F.3d 543, 552 (9th Cir. 2018) 9 (citing Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005)). 10 The court has concluded that defendants’ arguments in 11 support of removal are foreclosed by Saldana. Although Saldana 12 had not been decided at the time defendants removed to this 13 court, it had when defendants opposed plaintiff’s motion to 14 remand. While removal itself therefore was not unreasonable, 15 defendants’ opposition to plaintiff’s motion in the face of 16 binding and on-point authority was. See Herring, 2022 WL 743515, 17 at *5 (denying fees following remand of COVID-based wrongful 18 death claim against nursing home based on lack of binding 19 precedent at time of defendant’s removal and opposition to remand 20 motion); Ramirez v. Windsor Care Ctr. Nat’l City, Inc., 21-cv- 21 1051 AJB WVG, 2022 WL 392899, at *7 (S.D. Cal. Feb. 9, 2022) 22 (same).5 Accordingly, the court will award attorneys’ fees to 23 5 Defense counsel has also been counsel of record in 24 numerous similar cases in which motions to remand were granted on nearly identical grounds, further suggesting the opposition to 25 plaintiff’s motion was unreasonable. See Herring, 2022 WL 743515; Luna v. P & M Healthcare Holdings, Inc., 5:22-cv-300 SB 26 SHK, 2022 WL 946993 (C.D. Cal. Feb. 25, 2022); Burton v. 27 Silverado Escondido, LLC, 21-cv-1213 WQH RBB, 2021 WL 5087259 (S.D. Cal. Nov. 2, 2021); Hagoubyan v. KF Rinaldi, LLC, 2:21-cv- 28 6271 SVW E, 2021 WL 4288524 (C.D. Cal. Sept. 21, 2021); Carillo □□□ enn ene I I EI OS ND eee

1 plaintiff, but only those incurred, if any, as a result of 2 defendants’ opposition to plaintiff’s motion. 3 IT IS THEREFORE ORDERED that plaintiff’s motion to 4 remand (Docket No. 7) be, and the same hereby is, GRANTED. 5 IT IS FURTHER ORDERED that defendants’ motion to 6 dismiss (Docket No. 4) be, and the same hereby is, DENIED AS 7 MOOT.7 8 IT IS FURTHER ORDERED that plaintiff submit, within 9 seven days of this Order, a separate and itemized list of any 10 attorneys’ fees incurred on or after April 4, 2022 in addressing 11 this motion, including a detailed explanation for each item 12 listed. . 13 | Dated: April 14, 2022 —m*eeete*w™ {1 on (Men oe ettem~ (hk.

WILLIAM B. SHUBB

14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 | vy. Sela Healthcare, Inc., 5:21-cv-150 FLA (SPx), 2021 WL 4556421 5, | fC-- Cal. Sept. 8, 2021); Cortez v. Parkwest Rehab. Ctr. LLC, 21-cv-5172 AB (ASx), 2021 WL 4033759 (C.D. Cal. Sept. 3, 2021); 22 Lopez v. Greenfield Care Ctr. of S. Gate, LLC, 2:21-cv-2806 RGK PVC, 2021 WL 2546756 (C.D. Cal. May 19, 2021); Smith v. Colonial 23 Care Ctr., Inc., 2:2l1-cv-494 RGK PD, 2021 WL 1087284 (C.D. Cal. Mar. 19, 2021). 24 5 6 Because consideration of the documents included in defendants’ request for judicial notice (Docket No. 11) is 26 | unnecessary in deciding the motion to remand, the request is

DENIED AS MOOT.

27 7 This denial is without prejudice to any motion to 28 | dismiss being filed in state court upon remand. 10