1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 F. SHAUN BURNS, Case No.: 20-CV-927 JLS (JLB)

12 Plaintiff,

ORDER DISMISSING ACTION FOR

13 v. LACK OF SUBJECT-MATTER

JURISDICTION

14 SIAMAK NAZHAND; and ROES 1 to

10, 15 (ECF Nos. 1, 3, 8) Defendants. 16

17 Presently before the Court is Plaintiff F. Shaun Burns’ Verified Complaint 18 (“Compl.,” ECF No. 1) for ejectment, as well as Plaintiff’s Response to Order to Show 19 Cause Entered 05/22/20 (“Resp.,” ECF No. 8). On May 22, 2020, the Court ordered 20 Plaintiff to show cause why this action should not be dismissed for lack of subject-matter 21 jurisdiction. See ECF No. 3 (“OSC”) at 3. Specifically, the Court ordered Plaintiff to show 22 cause that more than $75,000 was in controversy.1 See id. 23

24 1 Plaintiff “respectfully request[ed] that this Court postpone making a decision of the pending OSC for an 25 additional 30 days – until July 15, 2020[ –] . . . [to] allow Defendant time to move completely out, if that is what he actually intends to do.” Resp. at 3. Plaintiff indicated that, “[i]f Defendant d[id] not move 26 completely out by Friday, June 19, 2020, then Plaintiff would seek default judgment on the Ejectment cause of action.” Id. Further, “[a] postponement of a decision on the OSC to July 15, 2020, would allow 27 Plaintiff time to prepare an Amended Complaint for money damages, even if Defendant moves out.” Id. 28 As of the date of this Order, Plaintiff has filed no update with the Court, no request for entry of default, 1 In his Response, Plaintiff introduces, through the affidavit of his real estate broker, 2 evidence that Plaintiff’s current equity in the real property located at 2656 Illion Street, 3 San Diego, California 92110 (the “Property”) is $400,000 and that his possible future 4 equity following renovations could by $500,000. See Resp. at 2 (citing Decl. of Russ 5 Eskilson (“Eskilson Decl.,” ECF No. 8-1) at 4–5). Plaintiff’s realtor avers that failure to 6 renovate the Property “will make it much more difficult to sell the Burns House, and the 7 probable selling price could be $150,000 less.” Id. at 6 (quoting Eskilson Decl. at 3) 8 (emphasis in original). Further, “[t]he continued unlawful occupancy of the [Property] by 9 Defendant Nazhand for the past six weeks – since May 1, 2020 – will push the start date 10 of the planned renovations out at least six weeks. And, that will push the date for putting 11 the [Property] on the market into August 2020, which ‘is the worst month to try to sell 12 houses’ as explained by Mr. Eskilson.” Id. at 4, 7 (quoting Eskilson Decl. at 6). 13 This additional evidence concerning the value of the Property misses the mark. As 14 the Court explained in the Order to Show Cause, see OSC at 2, ejectment is the right to 15 possession of the property that is at issue. See, e.g., Towers v. Titus, 5 B.R. 786, 792 (N.D. 16 Cal. 1979) (“The primary purpose of an action for ejectment is to recover possession.”); 17 see also Lidner v. Wallace, No. 215CV03122CASSSX, 2015 WL 12655693, at *2 (C.D. 18 Cal. June 10, 2015) (“In unlawful detainer actions, ‘the right to possession alone [is] 19 involved—not title to the property.’”) (quoting Fed. Nat'l Mortg. Assoc. v. Poh, No. C-12- 20 02707 JCS, 2012 WL 3727266, at *2 (N.D. Cal. Aug. 28, 2012)) (citing Evans v. Super. 21 Ct., 67 Cal. App. 3d 162, 170 (1977)).2 It is therefore “the amount of damages sought in 22 the complaint, not the value of the subject real property, determines the amount in 23 controversy.” Lidner, 2015 WL 12655693, at *2 (quoting Villegas, 2011 WL 204322, at 24 *2); see also Wells Fargo Bank v. Mayes, No. CV 12-01393 MMM MRWX, 2012 WL 25

26 2 The Ninth Circuit has recognized that unlawful detainer is a “statutory substitute” for a common-law 27 ejectment action. See Chapman v. Deutsche Bank Nat. Tr. Co., 651 F.3d 1039, 1047 n.4 (9th Cir. 2011) 28 (citing 9 Richard R. Powell et al., Powell on Real Property § 68.09[2][a] (Supp.2011)). Consequently, 1 893710, at *2 (C.D. Cal. Mar. 15, 2012) (“In an unlawful detainer action . . . , the 2 appropriate measure of damages is the amount sought in the complaint, not the value of the 3 property.”) (collecting cases). 4 Here, Plaintiff seeks eviction and restitution, see Compl. Prayer ¶¶ 1–2, based on 5 monthly rent of $2,500. See Compl. Ex. 2 at 1. He also alleges damages as a result of the 6 delay in selling the Property. Id. ¶ 16. These damages, however, are not equal to Plaintiff’s 7 equity in the Property—rather, they would include such items as the additional costs 8 incurred during the pendency of the unlawful occupation (such as property taxes), any 9 decrease in sales price resulting from the delay, and possibly interest to compensate 10 Plaintiff for the lost opportunity cost from the delay in realizing his equity in the Property. 11 Plaintiff’s Complaint includes no allegations regarding, and his Response includes no facts 12 substantiating, the amount of such damages. 13 Particularly given that it appears Defendant vacated the Property in mid-June, see 14 Resp. at 3, less than one month after filing and approximately six weeks after the expiration 15 of the lease, see Compl. ¶ 10, Plaintiff has failed to demonstrate by a preponderance of the 16 evidence that the amount in controversy exceeds $75,000. See, e.g., Evers v. Losahn 17 Robbins Staley Testamentary Tr., No. CV 17-968-DMG (DTBX), 2017 WL 3034332, at 18 *2 (C.D. Cal. May 17, 2017) (sua sponte dismissing without prejudice action challenging 19 unlawful detention order where the plaintiff “ha[d] not proven by a preponderance of the 20 evidence that the amount in controversy exceeds $75,000”); see also Xerox Corp. v. CBG 21 Legal, Inc., No. CV1408948SJOMRW, 2015 WL 13309101, at *2 (C.D. Cal. Apr. 16, 22 2015) (“The party asserting jurisdiction bears the burden of proving that jurisdiction exists 23 by a preponderance of the evidence.”) (citing McNutt v. Gen. Motors Acceptance Corp. of 24 Ind., 298 U.S. 178, 189 (1936); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 25 1090 (9th Cir. 2003)); Vincent Cirrincione Assocs., Ltd. v. Scottsdale Ins. Co., No. 26 213CV05252ODWAJWX, 2013 WL 12116592, at *1 (C.D. Cal. Sept. 5, 2013) (“The party 27 invoking diversity jurisdiction has the burden of proving these elements by a 28 preponderance of the evidence.”) (citing In re Ford Motor Co./Citibank (S.D.), N.A., 264 1] 952, 957 (9th Cir. 2001)). Accordingly, the Court DISMISSES WITHOUT 2 || PREJUDICE this action. Although the dismissal is without prejudice, Plaintiff is 3 || encouraged to refile in state court. 4 IT IS SO ORDERED. 5 6 ||Dated: August 18, 2020 janie: Lo erwaitee- 7 on. Janis L. Sammartino 3 United States District Judge

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