Opinion
24-cv-03054-SVK
05-31-2024
MICHAEL LYLE ELWARD, Plaintiff, v. ORLANDO MORENO CANO, Defendant.
ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE
REPORT AND RECOMMENDATION FOR REMAND
SUSAN VAN KEULEN, UNITED STATES MAGISTRATE JUDGE
On February 15, 2024, Plaintiff Michael Lyle Elward (“Plaintiff” or “Elward”) filed this unlawful detainer action in the Superior Court of California for the County of Santa Cruz, concerning certain real property located in Watsonville, California. Dkt. 1 at Ex. 1. After the then-owner of the property (Castellanos) defaulted on a loan secured by a deed of trust on the property in 2023, it was sold at a nonjudicial trustee's sale to a bank. Id. ¶¶ 6-7. Thereafter, Plaintiff Elward purchased the property from the bank. Id. ¶ 8. Following his purchase of the property, Plaintiff discovered that Defendant Orlando Moreno Cano (“Defendant” or “Cano”) was occupying the property as a residential tenant under an alleged rental agreement with Castellanos. Id. ¶ 9. Plaintiff alleges that the rental agreement “was not the result of an arm's length transaction and requires the receipt of rent that is substantially less than the fair rental value” of the property. Id. The state court complaint alleges that on November 16, 2023, Plaintiff caused a written 90-day Notice to Quit to be served on Cano, but Cano has failed to vacate and surrender the premises. Id. ¶¶ 10-11.
On May 21, 2024, Cano, appearing pro se, removed the action to this Court. Dkt. 1.
Because all Parties have not consented to magistrate judge jurisdiction, this Court ORDERS the Clerk of the Court to reassign this case to a District Judge. Additionally, for the reasons discussed below, the undersigned RECOMMENDS that the District Judge REMAND this case to state court due to lack of subject matter jurisdiction.
I. LEGAL STANDARD
Federal courts may hear only those cases falling within their limited subject matter jurisdiction. Removal to federal court is proper only where the federal court would have had original subject matter jurisdiction over the complaint. 28 U.S.C. § 1441(a). Common sources of federal subject matter jurisdiction are diversity jurisdiction (for a civil action between citizens of different states where the amount in controversy exceeds $75,000 (28 U.S.C. § 1332)) and federal question jurisdiction (for a civil action arising under the Constitution, laws, or treaties of the United States (28 U.S.C. § 1331)).
For purposes of federal question jurisdiction, a claim “arises under” federal law only if a “well-pleaded complaint” alleges a cause of action based on federal law-“an actual or anticipated defense” does not confer federal jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). 28 U.S.C. § 1443(1) “provides an exception to the well-pleaded complaint rule, allowing a party to remove an otherwise unremovable action where the party is asserting a federal claim of race discrimination that ‘cannot [be] enforce[d]' in the state courts.” Deutsche Bank Nat'l Trust Co. v. Young, No. C-14-3170 EMC, 2014 WL 7336696, at *1 (N.D. Cal., Dec. 23, 2014) (citing 28 U.S.C. § 1443(1) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824-28 (1966)).
The removal statutes are strictly construed against removal, and the defendant bears the burden of demonstrating that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Any doubt about whether removal is proper must be resolved in favor of remand. Id. In addition, the court has a continuing duty to determine whether it has subject matter jurisdiction. Fed. R. Civ. Proc. 12(h)(3). A district court may remand a case to state court sua sponte if it determines that subject matter jurisdiction is lacking. 28 U.S.C. § 1447(c); see also Smith v. Mylan, Inc., 761 F.3d 1042, 1043 (9th Cir. 2014).
II. DISCUSSION
Defendant Cano bases removal in this case solely on 28 U.S.C. § 1443(1), which provides for removal of certain civil rights cases. See, e.g., Dkt. 1 ¶ 1 (stating by Cano that he removed the case “pursuant to 28 U.S.C. §§ 1443, 1446, and 1447(b)); see also id. at 3 (“Defendant's removal to this court: 28 U.S.C. § 1443. Civil rights removal differs from Federal Question or Diversity jurisdiction removal precisely because there is NO requirement that the diversity jurisdiction be apparent or the federal question be presented on the face of the complaint.” (emphasis in original)); id. at 7 (“CIVIL RIGHTS REMOVAL IS A SPECIAL SPECIES OF REMOVAL ....” (emphasis in original)); id. at 2, 4, 6, 8, 12 (citations to 28 U.S.C. § 1443(1)).
A successful petition for removal under section 1443(1) must satisfy a two-part test: (1) the petitioner must assert, as a defense, rights that are given to him by explicit statutory enactment protecting equal racial civil rights; and (2) the petitioner must assert that the state court will not enforce that right, and that allegation must be supported by reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights. Liu v. Tan, No. 18-cv-00054-JSC, 2018 WL 1371252, at *2 (N.D. Cal. Feb. 26, 2018) (citing Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006)).
Neither the complaint nor the removal petition demonstrates a basis for removal jurisdiction over this case under section 1443(1). As to the first prong, Cano asserts that removal is proper pursuant to his constitutional rights to due process. See Dkt. 1 at 1-3. He also argues that removal is proper because “the Superior Courts of Santa Cruz County, and of California generally, have and enforce rules which are oppressive to economically disadvantaged defendants, as well as discriminatory to pro se litigants.” Id. at 2. However, “removal under Section 1443 is improper unless the removing party's defense is predicated on racial discrimination.” Liu, 2018 WL 1371252, at *2 (emphasis in original) (citing Patel, 446 F.3d at 999 (petitioners must assert rights given to them by explicit statutory enactment protecting racial civil rights); Working Dirt LLC v. Raynor, No. 16-CV-5444 YGR, 2016 WL 6124707, at *2 (N.D. Cal. Oct. 20, 2016) (rejecting defendant's removal under 1443 “to raise a defense to the unlawful detainer action pursuant to his equal rights based not on race but on other constitutionally guaranteed rights he claims are protected by 42 U.S.C. sections 1983 and 1985”); Duke Partners II, LLC v. Vonquerner, No. 5:16-CV-05542-HRL, 2016 WL 6273928, at *2 (N.D. Cal. Oct. 27, 2016) (“Supreme Court and Ninth Circuit precedent undoubtedly limit removal under section 1443(1) to only cases where it is predicated upon racial discrimination”)).
Cano's arguments regarding his entitlement to due process and discrimination against pro se and economically disadvantaged litigants fail to identify the challenged Superior Court “rules” or assert rights afforded to him by “explicit statutory enactment protecting equal racial civil rights.” Patel, 446 F.3d at 999. Cano appears to acknowledge that section 1443 removal has been limited to cases involving racial civil rights, arguing that “[i]f, for example, previous jurisprudence on 28 U.S.C. § 1443(1) has limited this powerful statute to cases involving racial discrimination, the Court should look to the language of the statute and give full force and effect to every word of the congressional enactment, keeping in mind that over the thirty one years since Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 [] (1978)) the United States Supreme Court has Radically retreated from the use of racial classifications to limit the applications of civil rights laws.” Dkt. 1 at 8 (citing Grutter v. Bollinger, 539 U.S. 306 (2003)). However, courts routinely limit section 1443 removal to situations involving “racial civil rights,” and the Court declines Cano's invitation to extend it to other contexts.
As to the second prong under section 1443(1), Cano has failed to tie his defense to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights. See Liu, 2018 WL 1371252, at *3 (citing U.S. Bank Nat. Ass'n v. Azam, 582 Fed.Appx. 710, 710-11 (9th Cir. 2014)).
Accordingly, Cano has not met his burden of demonstrating a basis for removal jurisdiction.
III. CONCLUSION
Because the parties have not consented to the jurisdiction of a magistrate judge, this Court ORDERS the Clerk of the Court to reassign this case to a district judge. The undersigned further RECOMMENDS that the newly assigned judge REMAND the case to Santa Cruz County Superior Court. Any party may serve and file objections to this recommendation within fourteen days after being served. Fed.R.Civ.P. 72; Civ. L. R. 72.
SO ORDERED.