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9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11

12 BIRD ROCK HOME MORTGAGE, Case No.: 19cv2310-JAH (LL) 13 LLC, ORDER: 14 Plaintiff,

15 v. 1. GRANTING PLAINTIFF’S MOTION TO REMAND; AND 16 DANIEL DAMIANO; MARGARET

DAMIANO; and DOES 1-10, 17 2. DENYING DEFENDANT’S INCLUSIVE, MOTION TO PROCEED IN FORMA 18 Defendants. PAUPERIS [Doc. No. 2] 19

20 INTRODUCTION 21 Plaintiff Bird Rock Home Mortgage, LLC, has filed a motion to remand this action 22 to state court. (Doc. No. 3). After a careful review of the pleadings and for reasons set forth 23 below, the Court (1) REMANDS the action to the California Superior Court for lack of 24 subject matter jurisdiction; and (2) DENIES Defendants’ motion to proceed in forma 25 pauperis as moot. 26 // 27 // 28 1 BACKGROUND 2 On October 4, 2019, Bird Rock Home Mortgage, LLC (“Plaintiff”), filed an 3 unlawful detainer action against Daniel Damiano (“Defendant”)1, in the Superior Court 4 of California, County of San Diego. (Doc. No. 1). Plaintiff is the owner of the property in 5 question and alleged a cause of action pursuant to California Code of Civil Procedure § 6 1161. Id. 7 On December 4, 2019, Defendant, proceeding pro se, filed a notice of removal 8 with a motion for leave to proceed in forma pauperis (“IFP”), pursuant to

1915(a). See Doc. No. 2. Defendant claims this Court has federal question jurisdiction 10 over the case pursuant to Plaintiff’s violation of the Real Estate Settlement Procedures 11 Act,

. (Doc. No. 1 p. 2). 12 On December 9, 2019, Plaintiff filed a Motion to Remand the case to San Diego 13 County Superior Court for lack of both federal and diversity jurisdiction. (Doc. No. 3). In 14 addition, Plaintiff indicates he may be filing a future motion for Attorneys’ Fees. 15 Defendant failed to file a response to Plaintiff’s motion. 16 DISCUSSION 17 A defendant in state court may properly remove an action to federal court if the 18 action could have been filed originally in federal court.

(b). Original 19 jurisdiction may be based on either diversity or federal question. See Caterpillar Inc. v.

U.S. 386, 392 (1987). The federal court is one of limited jurisdiction. 21 Gould v. Mutual Life Ins. Co. v. New York,

(9th Cir. 1986). As such, it 22 cannot reach the merits of any dispute until it confirms its own subject-matter 23 jurisdiction. Steel Co. v. Citizens for a Better Environ.,

(1998). The 24 burden of establishing removal properly rests upon the removing party. Emrich v. Touche 25 Ross & Co.,

, 1195 (9th Cir. 1998). There is a strong presumption in favor 26 of remand. Sanchez v. Monumental Life Ins. Co.,

(9th Cir. 1996). 27

28 1 A. Untimely Removal 2 As a general matter, a defendant may petition for removal of a civil action within 3 thirty days of receipt of the initial complaint. See

(b). Defendant was 4 served with the Summons and Complaint on October 10, 2019. (Doc. No. 3). This allowed 5 Defendant until November 9, 2019, to file a notion of removal. However, Defendant did 6 not file their removal pleadings until December 4, 2019, which is almost 30 days beyond 7 the removal time period. (Doc. No. 1). Therefore, Defendant’s removal is untimely. 8 B. Federal Question 9 Federal question jurisdiction "‘exists only when a federal question is presented on 10 the face of the plaintiff’s properly pleaded complaint.’ [Citation omitted].” Rivet v. Regions 11 Bank of Louisiana,

(1998). Plaintiff’s must plead a colorable claim 12 “arising under” the Constitution or laws of the United States to invoke federal-question 13 jurisdiction pursuant to

. Arbaugh v. Y&H Corp.,

, 513 14 (2006). To properly invoke federal question jurisdiction, a federal law or regulation must 15 be “an element, and an essential one, of the plaintiff’s cause of action.” Gully v. First Nat. 16 Bank,

(1936). However, “the federal question on which jurisdiction is 17 premised cannot be supplied via a defense; rather, the federal question must ‘be disclosed 18 upon the face of the complaint, unaided by the answer.’” Provincial Gov’t of Marinduque 19 v. Placer Dome, Inc.,

(9th Cir. 2009) (quoting Phillips Petroleum Co. 20 v. Texaco, Inc.,

(1974)). If “a federal court concludes that it lacks 21 subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh, 22

. 23 A review of the state court complaint in this case shows that Plaintiff alleges a single unlawful detainer claim under California Code of Civil Procedure § 1161. See Doc. No. 1. 24 In the notice of removal, Defendant assert that Plaintiff violated the Real Estate Settlement 25 Procedures Act (“RESPA”). See Id. at 2. But this does not confer federal jurisdiction as the 26 original state court complaint asserts a single unlawful detainer claim. See Id. at 9. 27 Defendant cannot create federal jurisdiction through an actual or anticipated defense. 28 1 Franchise Tax Bd. Of Cal. v. Constr. Laborers Vacation Trust,

(1983). 2 Furthermore, Plaintiff’s potential violation of RESPA is not a substantial question of 3 federal law that hinges on Plaintiff’s entitlement to relief on the unlawful detainer claim. 4 In addition, federal question jurisdiction cannot “rest upon an actual or anticipated 5 counterclaim.” Vaden v. Discover Bank,

(2009). As such, the Court cannot 6 entertain Defendant’s RESPA argument on the basis of federal question jurisdiction. 7 C. Diversity Jurisdiction 8 Federal district courts have diversity jurisdiction over cases in which the opposing 9 parties are citizens of different states and the amount in controversy exceeds $75,000. 28

(a). Here, both parties are citizens of California. Plaintiff is incorporated in 11 California and is therefore, a citizen of California. Defendant is a citizen of California as 12 the property in question in which Defendant resides in is located in the State of California. 13 See Doc. No. 1. Plaintiff correctly asserts that a Defendant that is a citizen of the forum 14 state cannot remove a case based upon diversity jurisdiction. (Doc. 3-1, p. 7;

1441(b)(2); Lincoln Property Co. v. Roche,

(2005)). In addition, the amount in controversy is not satisfied. In an unlawful detainer action, damages are 16 calculated based upon the right to possession-rather than title. See Litton Loan Servicing, 17 L.P. v. Villegas, No. C 10-05478 PJH,

at *2 (N.D. Cal. Jan. 21, 2011). 18 Here, Plaintiff’s damages are accumulating at a rate of $119.83 per day beginning on 19 October 4, 2019, (totaling approximately $14,139.94 to date). Accordingly, the damages 20 sought in Plaintiff’s complaint do not satisfy the requisite $75,000 threshold amount. 21 Therefore, this Court lacks diversity jurisdiction under

(a). 22 D. Attorney’s Fees 23 In circumstances where defendant’s removal of the action is objectively 24 unreasonable, the Court may award attorney’s fees under §1447(c). Martin v. Franklin 25 Capital Corp.,

(2005). A district court maintains jurisdiction after 26 remand to enter an award of fees and costs under 1447(c). See Moore v. Permanente Med. 27 Group,

, 445 (9th Cir. 1992) (“[I]t is clear that an award of attorney’s fees is 28 |! a collateral matter over which a court normally retains jurisdiction even after being divested 2 |lof jurisdiction on the merits.”’). s reflected above, Defendant has no objectively reasonable basis for seeking 3 As reflected ab Defendant h bjectivel ble basis fe ki 4 || removal. Defendant has failed to establish this Court’s jurisdiction on the basis of federal 5 || question or diversity. Furthermore, Defendant’s removal on the eve of trial warrants 6 || attorney’s fees for an abuse of the removal process by delaying the state court proceeding. 7 CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's Motion to Remand is GRANTED; 10 2. The Clerk of Court shall remand the action to the Superior Court of 11 California, County of San Diego; 12 3. Petitioner’s request to proceed in forma pauperis is DENIED as 13 MOOT. 14 4. Plaintiff shall file supplemental briefing by February 10, 2020 15 detailing actual expenses, costs and fees incurred as a result of removal 16 by Defendant; 17 5. Defendant may respond to Plaintiff's supplemental brief by February 18 18, 2020. 19 20 DATED: January 30, 2020 21 VU 22 3 IN. JOHN A. HOUSTON JNITED STATES DISTRICT JUDGE 24 25 26 27 28