1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CATAMOUNT PROPERTIES 2018, Case No.: 19cv2158-L-AHG

LLC,

12

ORDER GRANTING MOTION TO

Plaintiff, 13 REMAND v. 14

PAUL M. LUCORE,

15 Defendant. 16

17 Pending before the Court in this unlawful detainer action is Plaintiff’s motion to 18 remand. Defendant filed an opposition. Plaintiff has not filed a reply. The Court decides 19 the matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d)(1). 20 For the reasons stated below, Plaintiff's motion is granted. 21 Defendant removed this unlawful detainer action from State court under 28 U.S.C. 22 §§ 1331, 1443(1) and 1441. "Federal courts are courts of limited jurisdiction. They 23 possess only that power authorized by Constitution or statute, which is not to be 24 expanded by judicial decree. It is to be presumed that a cause lies outside this limited 25 jurisdiction, and the burden of establishing the contrary rests upon the party asserting 26 / / / / / 27 28 1 jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 2 Consistent with the limited jurisdiction of federal courts, the removal statute is strictly 3 construed against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The 4 burden of establishing removal jurisdiction is on the removing party. See Abrego Abrego 5 v. The Dow Chem. Co., 443 F.3d 676, 682-85 (9th Cir. 2006). 6 “[A]ny civil action brought in a State court of which the district courts of the 7 United States have original jurisdiction, may be removed . . ..” 28 U.S.C. § 1441(a). 8 Defendant bases removal on federal question jurisdiction under 28 U.S.C. §1331, which 9 confers "original jurisdiction of all civil actions arising under the Constitution, laws, or 10 treaties of the United States," and on 28 U.S.C. § 1443(1), which allows for removal 11 when a defendant in State court “is denied or cannot enforce in the courts of such State a 12 right under any law providing for the equal civil rights of citizens of the United States, or 13 of all persons within the jurisdiction thereof.” 14 Defendant argues removal is proper because the unlawful detainer lacks merit as 15 Plaintiff allegedly has not properly acquired title and therefore has no legal basis for 16 evicting Defendant. (Doc. no. 1 (“Notice of Removal”) at 4-5 (“Defendant disputes that 17 Plaintiff has duly perfected title;” “Defendant . . . illegally foreclosed on the subject 18 property”) ; doc. no. 6 (“Opp’n to Mot. to Remand”) at 1 (“claim is based on fraudulent 19 title records”).) Alternatively, Defendant claims that his due process rights were violated 20 because “Plaintiff and Plaintiff’s attorney are not proceeding in the manner required by 21 the [California] Code of Civil Procedure” and “used knowledge of the law by attempting 22 to prevent Defendant from fully and accurately representing their [sic] case.” (Notice of 23 Removal at 2-3.) 24 / / / / / 25 26

27 1 Unless otherwise noted, internal quotation marks, ellipses, brackets, citations, and 28 1 Removal is proper when a federal question appears on the face of a well-pleaded 2 || complaint: 3 [T]he presence or absence of federal-question jurisdiction is governed by the A well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's 5 properly pleaded complaint. A defense 1s not part of a plaintiff's properly 6 pleaded statement of his or her claim. Thus, a case may not be removed to federal court on the basis of a federal defense, . . . even if the defense is 7 anticipated in the plaintiff's complaint, and even if both parties admit that the g defense is the only question truly at issue in the case. 9 || Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998); see also Takeda v. NW 10 || Nat. Life Ins. Co., 765 F.2d 815, 821-22 (9th Cir. 1985) (removability cannot be created 11 || by defendant pleading a counter-claim presenting a federal question). Here, removal is 12 || based on procedural and substantive arguments Defendant can raise in State court. No 13 federal question appears on the face of the unlawful detainer complaint. Furthermore, 14 || Defendant has not shown the State court is not able to protect his constitutional right to 15 || due process. 16 Accordingly, Defendant has not met his burden as the removing party to establish 17 ||removal jurisdiction. “If at any time before final judgment it appears that the district 18 || court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 19 || This action is REMANDED to the Superior Court for the State of California , County of 20 Diego. 21 IT IS SO ORDERED. 22 23 Dated: September 1, 2020 24 95 H . James Lorenz United States District Judge 26 27 28