Opinion
Case No. 2:15-cv-2577-TLN-CKD
12-16-2015
BRB PROPERTIES, INC. Plaintiff, v. JAVIER R. LANDA, JODIE E. LANDA, AND DOES 1-20, INCLUSIVE Defendants.
SUA SPONTE REMAND ORDER
This matter is before the Court pursuant to Defendants Javier R. Landa and Jodie E. Landa's ("Defendants") Notice of Removal and Motion to Proceed in Forma Pauperis. (ECF Nos. 1 & 2.) For the reasons set forth below, Defendants' Motion to Proceed in Forma Pauperis is DENIED as moot, and the Court hereby remands the action to the Superior Court of California, County of San Joaquin, due to lack of subject-matter jurisdiction.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendants filed the instant Notice of Removal and Motion to Proceed in Forma Pauperis on December 14, 2015. (ECF Nos. 1 & 2.) The case was removed from the Superior Court of San Joaquin County, where Plaintiff filed an unlawful detainer action against Defendants under Cal. Code Civ. Proc. 1161a. Plaintiffs seek "a judgment for the restitution to plaintiff of possession of 2021 ELMWOOD AVENUE, STOCKTON, CA.95204, COUNTY OF SAN JOAQUIN, against defendant, JAVIER R. LANDA, JODI E. LANDA as to the Three Day Notice to QUIT AFTER THE SALE, Possession of Premises, per diem damages at the rate of $40 per day for each day from 09/27/2015 until possession is delivered to plaintiff or until judgment." (ECF No. 1 at 25.)
Defendants' stated basis for removal includes:
"In 2015 Defendant learned that discriminatory and retaliatory actions, taken by Plaintiff were made concerning Defendant's eviction from the subject property...." (ECF No. 1 at 3.)
Removal is proper under "28 U.S.C. § 1443(1) because under [the] California Civil Code he is denied or cannot enforce his equal rights to contract for and secure his property rights in the Superior Courts of the State of California on account of [P]laintiffs['] discriminatory and retaliatory acts...." (ECF No. 1 at 7.)
"The California Superior Courts completely ignore the California Civil [R]ules of Procedure, Civil [R]ules of Evidence and the Real Party in Interest [R]ule." (ECF No. 1 at 13.)
The "California Civil Code procedures authorizing evictions violate 42 U.S.C. §§ 1981-1982, so that Defendant has a right to remove on the basis that there is a pervasive state statutory program which both on its face and as applied discriminates unfairly against Ethnic-Surname Americans...." (ECF No. 1 at 7.)
"[U]nder California Civil Code § 2924 he is denied or cannot enforce his equal rights to contract for and secure real property rights...." (ECF No. 1 at 8.)
II. STANDARD OF LAW
28 U.S.C. § 1441 permits the removal to federal court of any civil action over which "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). "Removal is proper only if the court could have exercised jurisdiction over the action had it originally been filed in federal court." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Courts "strictly construe the removal statute against removal jurisdiction," and "the defendant always has the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam). Furthermore, "[i]f the district court at any time determines that it lacks subject matter jurisdiction over the removed action, it must remedy the improvident grant of removal by remanding the action to state court." California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th Cir. 2004), cert. denied 544 U.S. 974 (2005).
The "presence or absence of federal question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 386. Removal cannot be based on a defense, counterclaim, cross-claim, or third party claim raising a federal question, whether filed in state court or federal court. See Vaden v. Discover Bank, 556 U.S. 49 (2009); Hunter v. Philip Morris USA, 582 F.3d 1039, 1042-43 (9th Cir. 2009).
III. ANALYSIS
Defendants do not set forth a coherent basis for federal question jurisdiction, and they expressly do not bring this claim under diversity jurisdiction. In summary, Plaintiffs state the eviction proceedings that occur in California Superior Courts violate civil rights secured by the U.S. Constitution, including the right not to be deprived of property without due process of law, as set forth in the Fifth and Fourteenth Amendments. Plaintiffs argue there is systemic discrimination in the eviction process, which extends to the California Superior Court system. Thus, jurisdiction is proper under 28 U.S.C. § 1443(1), which permits removal by "any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof."
However, Defendants provide no evidence of this systemic deprivation of their civil rights. There are only conclusory allegations in the removal notice. This Court must strictly construe removal statutes against removal, and Defendants have the burden of showing removal is proper. Defendants have not met this burden. Gaus, 980 F.2d at 566.
IV. CONCLUSION
Thus for the reasons stated above, Defendants' motion to proceed in forma pauperis (ECF No. 2) is DENIED as moot, and the Court hereby remands this action to the Superior Court of California, County of San Joaquin.
IT IS SO ORDERED. Dated: December 16, 2015
/s/_________
Troy L. Nunley
United States District Judge