1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANGELINA MARTINEZ, Case No. 21-cv-09547-HSG

8 Plaintiff, ORDER GRANTING MOTION TO REMAND 9 v. Re: Dkt. No. 12 10 NOVATO HEALTHCARE CENTER, LLC, et al., 11 Defendants. 12 13 Plaintiff originally filed this case in Marin County Superior Court in October 2021. Dkt. 14 No. 1 at 23. The complaint alleges violations of California’s Elder and Dependent Adult Civil 15 Protection Act, as well as negligence and wrongful death claims. The complaint alleges that 16 Plaintiff’s mother, Rosamaria Garcia, died in September 2020 after contracting the coronavirus 17 while a resident at Defendants’ nursing facility. The complaint alleges that Defendants also 18 neglected Ms. Garcia and showed wanton disregard for her nutritional needs while at the facility. 19 On its face, the complaint pleads no federal claims. 20 Defendants removed the case to this Court in December 2021 on three grounds: (1) federal 21 officer jurisdiction under

(a)(1); (2) complete preemption of Plaintiff’s claims by 22 the PREP Act, 42 U.S.C. §§ 247d-6d and 247d-6e; and (3) embedded federal question jurisdiction 23 under Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg.,

(2005). 24 Dkt. No. 1 at 3-16 (notice of removal); see also Dkt. No. 22 (opposition to motion to remand 25 (“Opp.”)). Plaintiff moves to remand. Dkt. No. 12 (“Mot.”). 26 At the time Plaintiff filed her motion to remand, the overwhelming weight of persuasive 27 authority favored Plaintiff’s position. See Mot. at 4-6 and n.2 (citing cases). And since the filing 1 against Defendants. Saldana v. Glenhaven Healthcare LLC,

(9th Cir. 2022).1 2 In Saldana, the Ninth Circuit directly held that: 3 • Federal officer removal was inappropriate on allegations materially identical in all 4 relevant respects to those in this case.

(finding that “all that [nursing 5 home defendant] has demonstrated is that it operated as a private entity subject to 6 government regulations, and that during the COVID-19 pandemic it received additional 7 regulations and recommendations from federal agencies,” which did not amount to 8 “‘acting under’ a federal officer or agency as contemplated by the federal officer 9 removal statute”); 10 • The PREP Act does not completely preempt claims that again were materially 11 identical in all relevant respects to those in this case.

(“[U]nder [the 12 Ninth Circuit’s] two-part test, the PREP Act is not a complete preemption statute.”); 13 • State law claims for elder abuse, willful misconduct, custodial negligence and wrongful 14 death (the identical claims raised in this case) did not present any embedded federal 15 question authorizing removal.

. 16 The Court finds that Saldana is controlling and dispositive authority requiring remand of 17 this case, because it makes clear that Defendants cannot meet their burden of justifying removal. 18 See Grancare, LLC v. Thrower by & through Mills,

(9th Cir. 2018) (describing 19 “presumption against removal jurisdiction, under which [federal courts] ‘strictly construe the 20 removal statute,’ and reject federal jurisdiction ‘if there is any doubt as to the right of removal in 21 the first instance’”) (quoting Gaus v. Miles, Inc.,

(9th Cir. 1992) (per curiam), 22 abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Owens,

23 (2014)); see also

(c) (“If at any time before final judgment it appears that the 24 district court lacks subject matter jurisdiction, the case shall be remanded.”). “The ‘strong 25 presumption’ against removal jurisdiction means that the defendant always has the burden of 26 1 Saldana issued on February 22, 2022, a week before Defendants filed their opposition. See Opp. 27 filed on February 28, 2022. Defendants did not cite Saldana in their opposition, and Plaintiff 1 establishing that removal is proper.” See Gaus,

. 2 Accordingly, the Court GRANTS the motion to remand and REMANDS the case to 3 Marin County Superior Court.” The Clerk is directed to close the case. 4 5 IT IS SO ORDERED. 6 || Dated: 7/28/2022 | | |

HAYWOOD S. GILLIAM, JR. 8 United States District Judge 9 10 11 12

© 15 16

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Z 18 19 20 21 22 23 24 25 26 27 28 > The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b).