1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK SANTUCCI, deceased, by Case No.: 21cv1584-LAB (JLB) and through his personal 12 representative, ELIZABETH ORDER GRANTING MOTION TO 13 SANTUCCI; ELIZABETH REMAND TO STATE COURT SANTUCCI, individually, [Dkt. 10] 14

Plaintiffs, 15 v. 16 BALBOA HEALTHCARE, INC. dba 17 BALBOA NURSING & 18 REHABILITATION CENTER, a Skilled Nursing Facility; 19 PROVIDENCE GROUP, INC., a 20 California Corporation; SALEEM RAJPER, M.D., individually; DOES 21 1-10, inclusive, 22 Defendants. 23 24 Plaintiffs Frank Santucci, deceased, and his daughter, Elizabeth Santucci, 25 both in her individual capacity and as personal representative of Frank Santucci, 26 filed this action in the Superior Court of California, County of San Diego, alleging 27 claims against Defendants Balboa Healthcare, Inc., dba Balboa Nursing & 28 Rehabilitation Center (“Balboa Nursing”), Providence Group, Inc. (“Providence”), 1 and Dr. Saleem Rajper. They contend generally that Frank Santucci was a resident 2 of Balboa Nursing, a skilled nursing facility, where Santucci contracted COVID-19 3 due to its allegedly inadequate infection prevention and control procedures and 4 chronic failure to staff the facility to adequately meet residents’ needs. 5 Plaintiff originally filed his Complaint in state court on July 20, 2021, claiming 6 violations of California’s Elder and Dependent Adult Civil Protection Act 7 (“EDACPA”) and the Patient’s Bill of Rights, as well as negligence and wrongful 8 death. (Dkt. 1-2). On September 8, 2021, Defendants removed the case to federal 9 Court, alleging that this Court has jurisdiction on the following grounds: 10 (1) Plaintiffs’ claims are completely preempted by the Public Readiness and 11 Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d and 247d-6e; 12 (2) this case involves an embedded question of federal law under Grable & Sons 13 Metal Prods., Inc. v. Darue Eng’g & Mfg.,

(2005); and (3) removal is 14 proper under the federal officer statute,

(a)(1), because 15 Defendants were acting under the direction of a federal officer when they engaged 16 in the allegedly wrongful behavior. (Dkt. 1). Plaintiffs have moved to remand the 17 case to state court, contending that the PREP Act is not a complete preemption 18 statute, implication of the PREP Act as a defense does not create a federal 19 question such as to confer jurisdiction in this Court, and Defendants’ mere 20 compliance with federal law doesn’t mean Defendants were acting pursuant to a 21 federal official’s directions. (Dkt. 10). 22 On February 22, 2022, after briefing on Plaintiffs’ motion concluded, the 23 Ninth Circuit issued Saldana v. Glenhaven Healthcare LLC,

(9th Cir. 2022), explicitly rejecting all three bases for removal asserted by 25 Defendants.1 Saldana is controlling and Plaintiffs’ motion is GRANTED. All 26 27 1 Saldana issued on February 22, 2022, almost four months after the parties 28 1 pending motions, including Defendants’ Motion to Dismiss and Motion to Strike the 2 Complaint, (Dkt. 7), are DENIED AS MOOT. 3 I. ANALYSIS 4 This Court is bound by the Ninth Circuit’s ruling in Saldana. In that case, the 5 surviving relatives of Ricardo Saldana, who contracted and died from COVID-19 6 while residing in a nursing home, brought state law claims for elder abuse, willful 7 misconduct, custodial negligence, and wrongful death against the nursing home 8 for its alleged failure to adequately protect Mr. Saldana from the virus. Saldana, 9

. The facility removed the case from California state court, arguing 10 that the PREP Act completely preempted the plaintiffs’ state law claims, an 11 embedded federal question existed, and federal officer jurisdiction existed.

The 12 Ninth Circuit affirmed the district court’s remand to state court, finding that: (1) the 13 PREP Act is not a complete preemption statute because it “neither shows the intent 14 of Congress to displace . . . non-willful misconduct claims . . . nor does it provide 15 substitute causes of action for” state law claims; (2) a federal defense based on 16 the PREP Act is an insufficient basis for embedded federal question jurisdiction; 17 and (3) no federal officer jurisdiction existed because the facility was not “acting 18 under” a federal officer or agency by simply complying with federal laws or 19 regulations promulgated by federal authorities during the pandemic.

at 683–89. 20 Saldana requires remand of this case, as it clearly rejects Defendants’ theory 21 of complete preemption based on the PREP Act.

(“The PREP Act neither 22 shows the intent of Congress to displace the non-willful misconduct claims brought 23 by the [plaintiffs] related to the public health emergency, nor does it provide 24 substitute causes of action for their claims. Thus, under this court’s two-part test, 25 the PREP Act is not a complete preemption statute.”). As a result, the Court finds 26 27 28 1 that the PREP Act fails to provide subject matter jurisdiction for Plaintiffs’ state law 2 claims. 3 Defendants also argue there is federal jurisdiction based on an “embedded” 4 federal question. (Dkt. 1 at 29). They rely on Grable, which holds that removal is 5 appropriate if: (1) the state law claim necessarily raises a disputed and substantial 6 issue; and (2) a federal court may entertain the claims without disturbing 7 federal/state comity principles.

. But again, Saldana rejected this 8 theory, finding that state law claims, as the ones asserted in this case, “are raised 9 under California law and do not raise questions of federal law on the face of the 10 complaint.” Saldana,

. Saldana also held that a federal defense 11 under the PREP Act doesn’t create “a sufficient basis to find embedded federal 12 question jurisdiction.”

(citing Provincial Gov’t of Marinduque v. Placer Dome, 13 Inc.,

(9th Cir. 2009)); see also Iskowitz by & through Iskowitz 14 v. Northridge Subtenant, LLC, No. 321CV01108GPCMDD,

, at 15 *2 (S.D. Cal. Feb. 25, 2022) (“Here, as in Saldana, the rights or immunities created 16 by the PREP Act are not an essential element of the conduct giving rise to Plaintiffs’ 17 claims. Therefore, remand is proper because the complaint did not raise an 18 embedded federal question.”). 19 Finally, the Ninth Circuit has also rejected the assertion of federal officer 20 jurisdiction under

(a)(1). (Dkt. 1 at 32); see Saldana,

683–86 (“All that Glenhaven has demonstrated is that it operated as a private entity 22 subject to government regulations, and that during the COVID-19 pandemic it 23 received additional regulations and recommendations from federal agencies. 24 Thus, Glenhaven was not ‘acting under’ a federal officer or agency as 25 contemplated by the federal officer removal statute. And because Glenhaven did 26 not act under a federal officer, there is no causal nexus that allows removal under 27

.”); see also Branch v. Lilac Holdings, LLC, No. 21-CV-00605- 28 BAS-MDD,

, at *5 (S.D. Cal. Apr. 21, 2022) (“Thus, the mere 1 ||fact that Defendant followed government regulations—even if exactingly 2 || detailed—does not provide a basis for jurisdiction here.”). 3 Because Defendants haven't articulated any viable basis for federal 4 || jurisdiction, remand is proper. 5 |} I. ATTORNEYS’ FEES AND COSTS 6 Plaintiffs have requested $16,835.00 in attorneys’ fees and costs pursuant 7

(c). (Dkt. 10-1 at 25). “Absent unusual circumstances, courts 8 || may award attorney’s fees under § 1447(c) only where the removing party lacked 9 ||an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital 10 || Corp.,

(2005). “[R]Jemoval is not objectively unreasonable solely 11 ||because the removing party’s arguments lack merit...” Lussier v. Dollar Tree 12 || Stores, Inc.,

(9th Cir. 2008). Here, Defendants’ notice of 13 ||removal pre-dated the Ninth Circuit’s Saldana decision by more than five months. 14 || The request for fees is denied. 15 |] Ill. CONCLUSION 16 The Motion for Remand is GRANTED. (Dkt. 10). The case is remanded to 17 ||the California Superior Court, County of San Diego. All other pending motions, 18 ||including Defendants’ Motion to Dismiss and Strike the Complaint (Dkt. 7), are 19 ||DENIED AS MOOT. The Clerk of Court is instructed to terminate this case. 20 IT IS SO ORDERED. 21 22 Dated: September 29, 2022 (auf A. (Buywy 23 Honorable Larry Alan Burns 24 United States District Judge 25 26 27 28