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United States District Court 

Northern District of Californi

a

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

DUKE PARTNERS, LLC, et al.,

Plaintiffs, 

v. 

ROBERT M. OLIVAN, et al., 

Defendants. 

Case No. 17-cv-00085-DMR 

ORDER REASSIGNING CASE TO 

DISTRICT JUDGE; REPORT AND 

RECOMMENDATION TO REMAND 

CASE TO SUPERIOR COURT 

Defendant Robert M. Olivan removed this case from Contra Costa County Superior Court, 

where it was pending as a complaint for unlawful detainer against Defendant, and filed an 

application to proceed in forma pauperis (“IFP”). [Docket Nos. 1, 2.] On January 18, 2017, 

Plaintiff Duke Partners II, LLC filed a motion to remand this action to state court. [Docket No. 7.] 

Pursuant to 28 U.S.C. § 1441, “any civil action brought in a State court of which the 

district courts of the United States have original jurisdiction, may be removed by the defendant or 

other defendants, to the district court of the United States for the district and division embracing 

the place where such action is pending.” 28 U.S.C. § 1441(a). “If the district court at any time 

determines that it lacks jurisdiction over the removed action, it must remedy the improvident grant 

of removal by remanding the action to state court.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 

831, 838 (9th Cir.), opinion amended on denial of reh’g, 387 F.3d 966 (9th Cir. 2004) (citing 28 

U.S.C. § 1447). “The removal statute is strictly construed against removal jurisdiction, and the 

burden of establishing federal jurisdiction falls to the party invoking the statute.” Id. 

Defendant has not yet filed a declination or consent to the jurisdiction of a magistrate judge 

pursuant to 28 U.S.C. § 636(c). Therefore, the court issues herein a Report and Recommendation 

and reassigns this case to a District Judge for final disposition, with the recommendation that 

summary remand be ordered and the IFP application and motion to remand be denied as moot. 

Case 3:17-cv-00085-WHA Document 9 Filed 01/26/17 Page 1 of 5
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United States District Court 

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I. LEGAL STANDARDS 

Federal courts are courts of limited jurisdiction, and a “federal court is presumed to lack 

jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc. v. 

Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations omitted). “[T]he presence or 

absence of federal-question 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.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) 

(quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). That rule applies equally to 

evaluating the existence of federal questions in cases brought initially in federal court and in 

removed cases. See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 

n.2 (2002). 

Relevant for purposes here, a federal question exists only when it is presented by what is or 

should have been alleged in the complaint. Id. at 830. The implication of a federal question 

through issues raised by an answer or counterclaim does not suffice to establish federal question 

jurisdiction. Id. at 831; see also ARCO Envtl. Remediation, LLC v. Dep't of Health & Envtl. 

Quality of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000) (“[A] case may not be removed to federal 

court on the basis of a federal defense, . . . even if the defense is anticipated in the plaintiff’s 

complaint, and even if both parties admit that the defense is the only question truly at issue in the 

case.” (citation and internal quotation marks omitted) (brackets in original)). 

II. DISCUSSION 

Defendant disclaims any reliance on diversity jurisdiction and argues only that the action 

presents a federal question. Defendant asserts that federal law “control[s]” the “trust deed loan 

under which the right to foreclosure arose,” Notice of Removal 2, and references his constitutional 

due process and equal protection rights. See id. at 3, 4. Defendant further argues that “[t]he 

unlawful detainer trial courts rubber stamp all non-judicial foreclosures and summary evictions are 

executed under alleged ‘duly perfected title’ without a review of the true issues to identify the real 

parties in interest and protect the rights of unknown investors and property interests.” Id. at 6. 

The complaint that Plaintiff filed in Contra Costa County Superior Court simply alleges a 

Case 3:17-cv-00085-WHA Document 9 Filed 01/26/17 Page 2 of 5
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United States District Court 

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state cause of action under unlawful detainer. Compl. It does not provide any ground for removal. 

“An unlawful detainer action, on its face, does not arise under federal law but is purely a creature 

of California law.” Snavely v. Johnson, No. C 15-03773 WHA, 2015 WL 5242925, at *2 (N.D. 

Cal. Sept. 8, 2015) (citations omitted). Whatever Defendant intends to argue in response to the 

unlawful detainer allegation does not give rise to removal jurisdiction. See Holmes Group, 535 

U.S. at 831; see also Nguyen v. Bui, No. 12-501 HRL, 2012 WL 762156, at *2 (N.D. Cal. Feb. 21, 

2012) (holding that affirmative defenses based upon federal law do not confer federal jurisdiction 

upon state unlawful detainer claim). 

Defendant also argues that a federal question arises under 28 U.S.C. § 1443. Section 1443 

provides for the removal of any civil or criminal case commenced in state court “[a]gainst any 

person who is denied or cannot enforce in the courts of such State a right under any law providing 

for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction 

thereof[.]” 28 U.S.C. § 1443(1). In order to remove a case under section 1443(1), a notice of 

removal must satisfy a two-part test: “[f]irst, the petitioners must assert, as a defense to the 

prosecution, rights that are given to them by explicit statutory enactment protecting equal racial 

civil rights.” Patel v. Del Taco, 446 F.3d 996, 999 (9th Cir. 2006) (quoting Cal. v. Sandoval, 434 

F.2d 635, 636 (9th Cir. 1970)). “Second, petitioners must assert that the state courts will not 

enforce that right, and that allegation must be supported by reference to a state statute or a 

constitutional provision that purports to command the state courts to ignore the federal rights.” Id. 

(quoting Sandoval, 434 F.2d at 636). 

Here, Defendant asserts that “[t]he unlawful detainer trial courts rubber stamp all plaintiff 

actions for evictions and do not protect defendant property interests and which thus [sic] 

constitutes illegal taking under color of law” and that “California Civil Code procedures 

authorizing evictions violate 42 U.S.C., §§ 1981-1982 . . .” Notice of Removal at 7. Defendant 

contends that California Civil Code section 2924 prevents him from enforcing “his equal rights to 

contract for and secure real property rights” in state courts and violates his constitutional rights. 

Id. at 8. Further, Defendant asserts that “there is a pervasive state statutory program which both 

on its face and as applied discriminates unfairly against Ethnic-Surname Americans (all of whom 

Case 3:17-cv-00085-WHA Document 9 Filed 01/26/17 Page 3 of 5
United States District Court 

Northern District of Californi

a

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are

the

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mand of unla

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D. Cal. Civ. 

IT IS S

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acquiring an

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Fargo Bank 

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016 WL 733

6-CV-06605

awful detaine

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LUSION 

reasons abo

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be ordered to

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after being 

L.R. 72-2. 

SO ORDER

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citing Bogar

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ng where def

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to this report

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nited States M

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Magistrate Ju

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Cir. 1966)).

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moot, and 

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v. P. 72(a); 

________ 

al 

Case 3:17-cv-00085-WHA Document 9 Filed 01/26/17 Page 4 of 5
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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DUKE PARTNERS, LLC, et al.,

Plaintiffs,

v.

ROBERT M. OLIVAN, et al.,

Defendants.

Case No.4:17-cv-00085-DMR 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 

District Court, Northern District of California.

That on 1/26/2017, I SERVED a true and correct copy(ies) of the attached, by placing said 

copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing 

said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle 

located in the Clerk's office.

Robert M. Olivan

1110 San Donato Ct.

Brentwood, CA 94513 

Dated: 1/26/2017

Susan Y. Soong

Clerk, United States District Court

By:________________________

Ivy Lerma Garcia, Deputy Clerk to the 

Honorable DONNA M. RYU

Case 3:17-cv-00085-WHA Document 9 Filed 01/26/17 Page 5 of 5