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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RICHARD TUSCANY,

Plaintiff,

v.

ELENA VILLALOBOS, et al.,

Defendants.

Case No. 16-cv-07373-JCS 

REPORT AND RECOMMENDATIONS

REGARDING SUA SPONTE REMAND 

AND IMPOSITION OF PRE-FILING 

REVIEW

Re: Dkt. No. 1

I. INTRODUCTION

This is an unlawful detainer action originally filed in the California Superior Court for the 

County of Monterey and assigned the case number 16CV001985 in that court (the “State Court 

Action”). The case has been removed and remanded once before. For the reasons stated below, 

the undersigned recommends that the case be REMANDED once again, and that the Court enter 

an order REQUIRING PRE-FILING REVIEW of any further removal of this action. 

Because not all parties have consented to magistrate judge jurisdiction under 28 U.S.C. 

§ 636(c), the case will be assigned to a United States district judge for further proceedings, 

including action on these recommendations. Any party that wishes to file an objection to these 

recommendations may do so no later than fourteen days after being served with a copy of this 

Report.

II. BACKGROUND

Defendants Elena Villalobos, Jonathan Villalobos, Raul Villalobos, and Ashley Villalobos

previously removed the State Court Action to this Court in October of 2016, asserting federal 

question jurisdiction pursuant to 28 U.S.C. § 1331. See Tuscany v. Villalobos, No. 3:16-cv-06252-

JD (N.D. Cal.) (the “6252 Case”). The Honorable Donna Ryu recommended that the case be 

remanded sua sponte because the only stated basis for removal was that Plaintiff Richard Tuscany 

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allegedly discriminated against Defendants in violation of federal law, and potential federal 

affirmative defenses do not provide a basis for removal. See generally 1st Report and 

Recommendation (6252 Case dkt. 8). Instead, a federal question must appear on the face of the 

plaintiff‟s well-pleaded complaint, which in this case only stated a claim for unlawful detainer 

under state law. Id. Defendants did not file an objection to Judge Ryu‟s report, and the Honorable 

James Donato adopted her recommendation and remanded the case on December 12, 2016. See 

generally Remand Order (6252 Case dkt. 10). 

Defendants have now once again removed the State Court Action to this Court, filing their 

present notice of removal (dkt. 1) on December 28, 2016. The present notice of removal is nearly 

identical to the notice filed in the 6252 Case—although it omits the earlier notice‟s 

characterization of Tuscany as a “sick pervert” and a reference to police reports regarding his 

conduct—and bears the same October 26, 2016 date. Nothing in the present notice of removal 

addresses Judge Ryu‟s determination, adopted by Judge Donato, that the case is not subject to 

removal because no federal question appears on the face of Tuscany‟s unlawful detainer 

complaint.

III. ANALYSIS

A. Remand

1. Legal Standard

Federal courts have limited subject matter jurisdiction, and may only hear cases falling 

within their jurisdiction. Generally, a defendant may remove a civil action filed in state court if 

the action could have been filed originally in federal court. 28 U.S.C. § 1441. The removal 

statutes are construed restrictively so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. 

v. Sheets, 313 U.S. 100, 108−09 (1941). The Ninth Circuit recognizes a “strong presumption 

against removal.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal quotation marks 

omitted). Any doubts as to removability should be resolved in favor of remand. Matheson v. 

Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). The defendant bears the 

burden of showing that removal is proper. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th 

Cir. 2004). 

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2. Removal Was Not Proper Under 28 U.S.C. §§ 1331 and 1441

Defendants once again assert that the case is subject to removal because this Court has 

federal question jurisdiction pursuant to 28 U.S.C. § 1331. “The presence or absence of federalquestion jurisdiction is governed by the „well-pleaded complaint rule,‟ which provides that federal 

jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly 

pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The law has long 

been “settled . . . that a case may not be removed to federal court on the basis of a federal 

defense.” See id. 

Unlawful detainer is a state law claim that does not implicate federal law. See, e.g., Litton 

Loan Servicing, L.P. v. Villegas, C 10-05478 PJH, 2011 WL 204322, at *2 (N.D. Cal. Jan. 21, 

2011). As noted in Judge Ryu‟s report in the 6252 Case, “[w]hatever Defendants intend to argue 

in response to this allegation does not give rise to removal jurisdiction.” 1st Report and 

Recommendation at 2; see Caterpillar, 482 U.S. at 392. Nothing in the present notice of removal 

changes that conclusion, and the undersigned therefore recommends that the case once again be 

remanded for lack of subject matter jurisdiction.

3. Removal Was Not Timely Under 28 U.S.C. § 1446(b)

A notice of removal must be filed within thirty days of service of an initial pleading or 

summons, or some “other paper from which it may first be ascertained that the case is one which 

is or has become removable.” 28 U.S.C. § 1446(b)(1), (3). Here, the State Court Action has been 

pending since June of 2016. Defendants‟ present notice of removal does not identify any changes 

within the preceding thirty days that rendered the case removable. Accordingly, the untimeliness 

of the present removal is also a sufficient basis for remand.

B. Vexatious Litigant Order and Pre-Filing Review

In another case involving serial removals of a state court unlawful detainer action—in that 

case, four successive removals—Judge Lloyd set forth the standard for declaring a party to be a 

vexatious litigant and entering an order requiring pre-filing review:

“Federal courts have the inherent power „to regulate the activities of 

abusive litigants by imposing carefully tailored restrictions under the 

appropriate circumstances,‟” including the issuance of pre-filing 

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orders. Bridgewater v. Hayes Valley Ltd. Partnership, No. 10-03022 

CW, 2011 WL 635268 at *4 (N.D. Cal., Feb. 11, 2011) (quoting 

DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). Prefiling orders are rarely used and “cannot issue merely upon a 

showing of litigiousness.” Moy v. United States, 906 F.2d 467, 470 

(9th Cir. 1990). Nevertheless, “district courts „bear an affirmative 

obligation to ensure that judicial resources are not needlessly 

squandered on repeated attempts by litigants to misuse the courts.‟” 

Bridgewater, 2011 WL 635268 at *4 (quoting O’Loughlin v. Doe, 

920 F.2d 614, 618 (9th Cir. 1990)). And, “„[f]lagrant abuse of the 

judicial process cannot be tolerated because it enables one person to 

preempt the use of judicial time that properly could be used to 

consider the meritorious claims of other litigants.‟” Molski v. 

Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) 

(quoting De Long, 912 F.2d at 1148)). In determining whether a prefiling order should issue, courts must (1) give the litigant notice and 

an opportunity to be heard; (2) compile and adequate record for 

review; (3) make substantive findings about the frivolous or 

harassing nature of the litigant‟s filings; and (4) narrowly tailor any 

resulting order to fit the specific vice encountered. Id.

NGA Inv., LLC v. Beronilla, No. 5:14-cv-02457 HRL, 2014 WL 3421919, at *3 (N.D. Cal. July 

14, 2014) (alteration in original), report and recommendation adopted, 2014 WL 3867781 (Aug. 

4, 2014). The undersigned addresses each of the four requirements in turn.

First, Defendants have notice and an opportunity to be heard because they may file 

objections to these recommendations pursuant to 28 U.S.C. § 636(b)(1). 

Second, there is an adequate record of abuse of the removal procedure in this unlawful 

detainer action, because Judge Ryu‟s previous report in the 6252 Case set forth the reasons that 

this case is not subject to removal, and Defendants nevertheless filed a second notice of removal 

virtually identical to the first, without addressing the reasons why the case was previously 

remanded.

Third, the undersigned finds Defendants‟ removals to be frivolous, because they failed to 

timely remove under § 1446(b) and failed to demonstrate any basis for subject matter jurisdiction.

Although a pro se litigant‟s misunderstanding of the law may in some circumstances be 

understandable, Defendants cannot claim ignorance as to their second removal after receiving the 

Court‟s order remanding the case after their first removal. The record as a whole indicates an 

intent to delay rather than a bona fide desire to litigate in a federal forum, and suggests that 

Defendants are likely to file further frivolous removals if not restricted from doing so by an order 

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of the Court.1

“Finally, the vexatious litigant order „must be narrowly tailored to closely fit the specific 

vice encountered.‟” Molski, 500 F.3d at 1057 (quoting De Long, 912 F.2d at 1148). The 

undersigned recommends that, as in NGA Investment, a vexatious litigant order be narrowly drawn 

to encompass only further removals of this unlawful detainer action, and to allow Defendants to 

seek leave of the Court for such removals rather than barring removal entirely. The undersigned 

therefore recommends that the Court enter the following order:

IT IS HEREBY ORDERED that before filing any further notices of 

removal of Monterey County Superior Court case number 

16CV001985, Elena Villalobos, Jonathan Villalobos, Raul 

Villalobos, and/or Ashley Villalobos must first file a motion with 

the Court seeking leave to file a notice of removal. Any such motion 

must include: (1) a copy of Judge Spero‟s Report and 

Recommendation issued in this case, (2) a copy of this Order, and 

(3) a copy of the proposed filing. The Clerk of the Court shall not 

accept for filing any further notices of removal of Monterey County 

Superior Court case number 16CV001985 unless accompanied by 

an order from a judge of this district granting leave to file the 

removal papers.

The language above is included only to illustrate the recommended order and to allow 

Defendants an opportunity to respond. No such order will be entered unless and until these 

recommendations are adopted by a United States district judge.

IV. CONCLUSION

For the reasons stated above, the undersigned recommends that this case be REMANDED 

sua sponte to the Superior Court of California for the County of Monterey and that an order be 

entered REQUIRING PRE-FILING REVIEW of any further removal of this unlawful detainer 

action. Although the undersigned does not recommend an award of attorneys‟ fees sua sponte,

 

1

Plaintiff‟s counsel filed a letter in the 6252 Case requesting expedited review of Judge Ryu‟s 

report and detailing a series of improper steps beyond frivolous removals that Defendants 

purportedly took to delay resolution of the State Court Action. See Letter (6252 Case dkt. 9). 

That letter was not accompanied by evidence or documents subject to judicial notice, and the 

undersigned therefore disregards it for the purpose of this report—even without considering 

counsel‟s assertions, the undersigned finds that the pattern of frivolous removals is sufficient to 

impose pre-filing review. However, if counsel is aware of individuals engaged in the unlicensed 

practice of law for the purpose of improper delay, he is encouraged to report such conduct to the 

state bar or law enforcement authorities. See Letter at 1 (discussing “a sort of cottage industry of 

underground paralegals who earn their living delaying unlawful detainer cases through frivolous 

and underhanded means”).

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Defendants are admonished that further attempts to improperly delay litigation may result in 

monetary sanctions. Because not all parties have consented to the jurisdiction of a magistrate 

judge, this case will be reassigned to a United States district judge for further proceedings, 

including action on this recommendation—either to Judge Donato if determines this case is related 

to the 6252 Case, or to a randomly assigned district judge if Judge Donato determines that it is not 

related. Any party that wishes to file objections to this recommendation may do so within 

fourteen days of being served with a copy of this report. See 28 U.S.C. § 636(b).

Defendants, who are not represented by counsel, are encouraged to consult with the 

Federal Pro Bono Project‟s Legal Help Center in either of the Oakland or San Francisco federal 

courthouses for assistance. The San Francisco Legal Help Center office is located in Room 2796 

on the 15th floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is

located in Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments 

can be made by calling (415) 782-8982 or signing up in the appointment book located outside 

either office. Lawyers at the Legal Help Center can provide basic assistance to parties 

representing themselves but cannot provide legal representation.

Dated: January 3, 2017

______________________________________

JOSEPH C. SPERO

Chief Magistrate Judge

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