B-¢ 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WUSHONG YOW and HSIUKANG | Case No. 8:21-cv-01663 DOC (KESx) 12 ue 13 Plaintitts, ORDER REMANDING CASE TO 14 “ STATE COURT 15 ADRIENNE JACKSON, 16 Defendant. 17 18 19 BACKGROUND 20 On September 3, 2021, Wushong and Hsiukang Yow (“Plaintiffs”) brought 21 || an action for unlawful detainer against Adrienne Jackson (“Defendant”) in Superior 22 || Court of California, County of Orange (case number 30-202 1-01220977-CL-UD- 23 || CJC). (Dkt. 1 at 3-8.) The complaint alleges that Defendant is in unlawful 24 || possession of the premises located at 128 Citysquare, Irvine, California. (Id. at 8.) 25 || On October 7, 2021, Defendant filed a Notice of Removal removing this unlawful 26 || detainer to federal court. (Dkt. 1.) The Court sua sponte REMANDS this action to 27 || the Superior Court of California, County of Orange, for lack of subject matter 28 || jurisdiction, as set forth below.

1 II. 2 DISCUSSION 3 “The right of removal is entirely a creature of statute and a suit commenced 4 || in a state court must remain there until cause is shown for its transfer under some 5 || act of Congress.” Syngenta Crop Prot., Inc. v. Henson,

(2002) 6 || (citation omitted). Where Congress has acted to create a right of removal, those 7 || statutes are strictly construed against removal jurisdiction. Id.; Nevada v. Bank of 8 || Am. Corp.,

(9th Cir. 2012); accord Jordan v. Nationstar Mortg. 9 || LLC,

(9th Cir. 2015). 10 Unless otherwise expressly provided by Congress, a defendant may remove 11 || “any civil action brought in a State court of which the district courts of the United 12 || States have original jurisdiction.”

(a); accord Dennis v. Hart, 724 13 || F.3d 1249, 1252 (9th Cir. 2013). The removing defendant bears the burden of 14 || establishing federal jurisdiction. Abrego Abrego v. The Dow Chem. Co.,

|| 676, 682 (9th Cir. 2006). “Under the plain terms of § 1441(a), in order properly to 16 || remove [an] action pursuant to that provision, [the removing defendant] must 17 || demonstrate that original subject-matter jurisdiction lies in the federal courts.” 18 || Syngenta Crop Prot.,

. Failure to do so requires that the case be 19 || remanded, as “[s]ubject matter jurisdiction may not be waived, and ... the district 20 || court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n v. 21 || Homestead Ins. Co.,

(9th Cir. 2003). “If at any time before 22 || final judgment it appears that the district court lacks subject matter jurisdiction, the 23 || case shall be remanded.”

(c). “It is elementary that the subject 24 || matter jurisdiction of the district court is not a waivable matter and may be raised at 25 || any time by one of the parties, by motion or in the responsive pleadings, or sua 26 || sponte by the trial or reviewing court.” Emrich v. Touche Ross & Co.,

|| 1190, 1194 n.2 (9th Cir. 1988); accord Carolina Cas. Ins. Co. v. Team Equip.., Inc., 28 ||

(9th Cir. 2014).

1 || A. Federal Question Jurisdiction. 2 The underlying action is an unlawful detainer proceeding, arising under, and 3 || governed by the laws of the State of California. The state-court complaint does not 4 || include any claim “arising under the Constitution, laws, or treaties of the United 5 || States.”

. Federal defenses or federal counterclaims do not 6 || provide a basis to remove an action which does not otherwise establish federal 7 || jurisdiction. Indeed, “it is now settled law that a case may not be removed to 8 || federal court on the basis of a federal defense, including the defense of pre-emption, 9 || even if the defense is anticipated in the plaintiff's complaint, and even if both 10 || parties concede that the federal defense is the only question truly at issue.” 11 || Caterpillar Inc. v. Williams,

, (1987); see Berg v. Leason,

|| 422, 426 (9th Cir. 1994), as amended (Sept. 7, 1994) (“neither an affirmative 13 || defense based on federal law, nor one based on federal preemption renders an 14 || action brought in state court removable”) (citations omitted). Here, Defendant does 15 || not assert and there is no basis for federal question jurisdiction. 16 | B. Diversity Jurisdiction. 17 There is also no basis for diversity jurisdiction. While Defendant vaguely 18 || asserts diversity jurisdiction (Dkt. 1 at 1), she acknowledges that Plaintiffs and 19 || Defendant are residents and citizens of the County of Orange, California (Dkt. 1-1). 20 || Even if the parties are diverse, Defendant has not demonstrated that the amount in 21 || controversy exceeds the $75,000 required for federal diversity jurisdiction. See 28 22 || U.S.C. § 1332(a). Instead, the amount in controversy appears to be no more than 23 || $20,000. (Dkt. 1 at 6.) Jurisdiction Under

. 25 Section 1443(1) permits a defendant in state cases to remove the proceedings 26 || to the federal district courts when a defendant is “denied or cannot enforce in the 27 || courts of such State a right under any law providing for the equal civil rights of 28 || citizens in the United States.” In order to successfully remove, the defendant must

1 || satisfy a two-prong test: (1) the rights allegedly denied must arise under a federal 2 || law providing for specific civil rights stated in terms of racial equality; and (2) the 3 || defendant must be denied or unable to enforce the rights in state courts. Johnson v. 4 || Mississippi,

(1975); City of Greenwood, Miss. v. Peacock, 384 5 || U.S. 808, 827-28 (1966); Georgia v. Rachel,

(1966). Under the 6 || first prong, constitutional or statutory provisions of general applicability or under 7 || statues not protecting against racial discrimination will not suffice. Johnson, 421 8 || U.S. at 219. Under the second prong, a defendant’s federal rights are left to the 9 || state courts except in rare situations where it can be clearly predicted that those 10 || rights will inevitably be denied by the very act of bringing the defendant to trial in 11 || state court. Peacock,

. 12 Defendant neither asserts that she has been denied her federal civil rights nor 13 || demonstrates that she is unable to enforce her rights in the California state courts. 14 |) Consequently, removal is not proper under § 1443(1). 15 TIL. 16 CONCLUSION 17 This Court does not have subject matter jurisdiction over this case. IT IS 18 | THEREFORE ORDERED that this matter be REMANDED to the Superior Court 19 || of the State of California for the County of Orange. 20 21 | DATED: October 12, 2021 Mewuit O Curt 09 DAVID O. CARTER 33 UNITED STATES DISTRICT JUDGE

24 || Presented by: 25 V,cesws 6. Scoff? 26 || KAREN E. SCOTT 97 || UNITED STATES MAGISTRATE JUDGE 28