Opinion
No. C-10-0476 MMC.
March 19, 2010
Before the Court is the "Motion to Remand and Request for an Award of Attorney's Fees and Costs," filed February 9, 2010 by plaintiffs Rowena G. Cu-Unjieng, Victor Cu-Unjieng, and Christina Cu-Unjieng. Defendants JP Morgan Chase Bank, N.A., and Bank of American NA have not filed opposition. Having read and considered the papers filed in support of the motion, the Court hereby GRANTS in part and DENIES in part the motion, as follows:
A third defendant, California Reconveyance Company, had not been served as of the date the instant action was removed (see Notice of Removal, filed February 2, 2010, ¶ 3), and, following removal, has not appeared herein.
By order filed March 11, 2010, the Court took the motion to remand under submission.
To the extent the motion seeks an order remanding the action, the motion will be granted. Contrary to defendants' Notice of Removal, the complaint does not contain a federal question. Where a state law claim is based on alternative theories of liability, "one of which is a state law theory and one of which is a federal law theory[,] federal question jurisdiction does not attach." See Lippitt v. Raymond James Financial Services, Inc., 340 F.3d 1033, 1043 (9th Cir. 2003) (internal quotation and citation omitted). Although defendants are correct that plaintiffs base their claim under § 17200 of the California Business Professions Code on defendants' alleged violations of the Truth in Lending Act and the Equal Credit Opportunity Act, such claim is based additionally on defendants' having allegedly violated state law by making misrepresentations (see Compl. ¶¶ 44, 60) by breaching a fiduciary duty (see Compl. ¶¶ 50-52, 60), and by failing to provide plaintiffs "disclosures" required by state law (see Compl. ¶ 64).
To the extent the motion seeks an award of $10,000 in costs and fees, the motion will be denied. Plaintiffs have not submitted any evidence to support such request, let alone evidence from which the Court could determine whether the requested amount is reasonable. See United States v. Ayers, 166 F. 3d 991 (9th Cir. 1999) (holding district court properly denied prevailing party's request for attorney's fees, where party "failed to submit supporting documentation").
Accordingly,
1. Plaintiffs' Motion to Remand is hereby GRANTED, and the instant action is hereby REMANDED to the Superior Court of California, in and for the County of San Mateo.
2. Plaintiffs' Request for costs and attorney's fees is hereby DENIED.
3. In light of the order remanding the action, the Court does not address defendant JP Morgan Chase Bank, N.A.'s motion to dismiss, and the March 26, 2010 hearing thereon is hereby VACATED.