1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LYNETTA WESTBROOK, Case No. 21-cv-06474-JD

8 Plaintiff,

ORDER RE REMAND

v. 9

10 SAN PABLO HEALTHCARE &

WELLNESS CENTER,

11 Defendant.

12 13 Plaintiff Lynetta Westbrook, as heir and successor-in-interest to decedent Alex Pollard, has 14 sued defendant San Pablo Healthcare & Wellness Center, LLC (San Pablo), a residential skilled 15 nursing facility. Westbrook alleges California state law claims of elder abuse, negligence, and 16 wrongful death, arising out of the death of Pollard from COVID-19 while receiving care at San 17 Pablo. Dkt. No. 1, Ex. A (Compl.). 18 The complaint was originally filed in the Superior Court of California for the County of 19 Contra Costa, but San Pablo removed the case under 28 U.S.C. §§ 1441, 1442, and 1446. Dkt. 20 No. 1. Plaintiff has asked to remand the case. Dkt. No. 16. The parties’ familiarity with the 21 record is assumed, and the case is remanded to the Superior Court. 22 DISCUSSION 23 A remand is required because a recent decision by the circuit in a very similar case, 24 Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022), squarely rejected all three of 25 the bases put forward by San Pablo here in support of federal subject matter jurisdiction. San 26 Pablo acknowledges that the Court is “currently bound by the precedent set by” Saldana, but 27 nevertheless urges that the case was “incorrectly decided” and may be appealed, and so the Court 1 or until the time for filing a petition for writ of certiorari has passed.” Dkt. No. 17 at 5. The Court 2 declines the request for a stay. Not only does it lack good cause, the Court had in any event 3 reached the same conclusions as Saldana in an earlier-filed order in Jalili-Farshchi v. Aldersly, 4 No. 3:21-cv-04727-JD, 2021 WL 6133168 (N.D. Cal. Dec. 29, 2021). 5 For the specific grounds on which this case was removed, San Pablo’s complete 6 preemption argument based on the federal Public Readiness and Emergency Preparedness (PREP) 7 Act, 42 U.S.C. § 247d-6d, Dkt. No. 1 at 3-10, is without merit. As the circuit held in Saldana, 27 8 F.4th at 688, “the PREP Act is not a complete preemption statute.” See also Jalili-Farshchi, 2021 9 WL 6133168, at *2 (reaching same conclusion). 10 San Pablo’s assertion of federal jurisdiction based on an “embedded” federal question, 11 Dkt. No. 17 at 17 & Dkt. No. 1 at 10-12, has also been rejected. See Saldana, 27 F.4th at 688-89 12 (“On its face, [a federal issue under the PREP Act] is not a ‘substantial’ part of the [plaintiffs’] 13 complaint because, according to the complaint, only some of the steps [defendant] allegedly took, 14 and did not take, may have involved a ‘covered person,’ under the PREP Act. Thus, remand is 15 proper because the complaint does not present an embedded federal question.”); see also Jalili- 16 Farshchi, 2021 WL 6133168, at *3 (“Interpretation of federal statutes, including the PREP Act, is 17 not an essential part of any of plaintiffs’ state law claims. And [defendant’s] invocation of 18 immunity under the PREP Act is a defense to, rather than a necessary component of, plaintiffs’ 19 claims, which [defendant] will not be precluded from raising in state court.”). 20 Finally, San Pablo’s assertion of federal officer jurisdiction under 28 U.S.C. § 1442(a)(1), 21 Dkt. No. 1 at 12-16, also fails. See Saldana, 27 F.4th at 683-86 (“All that Glenhaven has 22 demonstrated is that it operated as a private entity subject to government regulations, and that 23 during the COVID-19 pandemic it received additional regulations and recommendations from 24 federal agencies. Thus, Glenhaven was not ‘acting under’ a federal officer or agency as 25 contemplated by the federal officer removal statute. And because Glenhaven did not act under a 26 federal officer, there is no causal nexus that allows removal under 28 U.S.C. § 1442.”); see also 27 Jalili-Farshchi, 2021 WL 6133168, at *3-4 (finding that elder care facility’s response to COVID- 1 Medicaid Services, and California Department of Public Health was “not enough for removal on 2 || federal officer grounds”). 3 This disposes of all three of San Pablo’s removal arguments. Plaintiff has requested fees 4 || “for improper removal pursuant to 28 U.S.C. § 1447(c).” Dkt. No. 16 at 11. “Absent unusual 5 circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party 6 || lacked an objectively reasonable basis for seeking removal,” Martin v. Franklin Capital Corp., 7 546 U.S. 132, 141 (2005); “removal is not objectively unreasonable solely because the removing 8 || party’s arguments lack merit.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 9 2008). Here, San Pablo’s notice of removal pre-dated the Court’s Jalili-Farshchi decision by four 10 || months, and the circuit’s Saldana decision by six. The request for fees is denied on that basis. 11 CONCLUSION 12 The case is remanded to the Superior Court of California for the County of Contra Costa. 13 IT IS SO ORDERED. || Dated: June 9, 2022

2 16 5 JAMESPONATO. nited ftates District Judge 18 19 20 21 22 23 24 25 26 27 28