Brown v. Camp Pendleton & Quantico Housing, LLC

• Court: District Court, S.D. California
• Decided: March 21, 2025
• Docket: 3:23-cv-00567
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 SAINT BROWN, et al., Case No.: 3:23-cv-00567-JES-DDL

13 Plaintiffs, ORDER DENYING MOTION TO 14 v. REMAND

15 CAMP PENDLETON & QUANTICO HOUSING, LLC, et al., [ECF No. 62] 16 Defendants. 17 18 19 20

21 Before the Court is Plaintiffs’ Saint Brown (“Brown”), Christine Brown, and Minor 22 Plaintiffs B.B., T.B., L.B., and C.B. (collectively, “Plaintiffs”) motion to remand for lack 23 of jurisdiction. ECF No. 62-2. Defendants filed an opposition and Plaintiffs filed a reply. 24 ECF Nos. 63, 65. On December 18, 2024, the Court heard oral argument on the matter and 25 ordered supplemental briefing. ECF No. 67. On January 3, 2025, Plaintiffs filed 26 supplemental briefing supporting their motion to remand. ECF No. 68. On January 17, 27 28 1 2025, Defendants filed an opposition to the supplemental briefing. ECF No. 69. For the 2 reasons stated below, the Court DENIES Plaintiffs’ motion to remand. 3 I. BACKGROUND 4 On January 30, 2023, in state court, Plaintiffs filed a complaint alleging multiple 5 causes of action related to mold and water damage at their home, a 4 bed/2.5 bath two- 6 story detached home with a fenced backyard at 1424 Orion Drive, San Diego, CA 92126 7 (“Orion Property”) in the Capeharts West neighborhood within the boundaries of Marine 8 Corps Air Station Miramar (“MCAS Miramar”). ECF No. 1 ¶¶ 1, 9. Defendant San Diego 9 Family Housing, LLC (“SDFH”) is the lessor of the housing, and Defendant Lincoln 10 Military Property Management, L.P. (“LMPM,” collectively “Defendants”) is the property 11 manager of the property. ECF No. 1 ¶ 3. 12 On March 30, 2023, Defendants removed the case to this Court. See generally ECF 13 No. 1. In the Notice of Removal, Defendants asserted three independent bases for removal: 14 (1) pursuant to 28 U.S.C. § 1331, because the events outlined in the complaint occurred 15 within a federal enclave; and (2) under 28 U.S.C. § 1442(a)(1), because (a) SDFH is a 16 federal agency; (b) and at all relevant times Defendants were acting under a federal officer. 17 ECF No. 1 ¶¶ 4, 24-30. 18 Plaintiffs filed this motion to remand asserting that this Court lacks subject matter 19 jurisdiction because the Orion Property is not on a federal enclave and Defendants are not 20 a federal agency nor a federal officer. ECF No. 62-2. 21 II. LEGAL STANDARD 22 Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 23 (2013). In a case originally brought in state court, a defendant may remove the action to 24 federal court if there is federal subject matter jurisdiction. 28 U.S.C. § 1441(a) (“Except as 25 otherwise expressly provided by Act of Congress, any civil action brought in a State court 26 of which the district courts of the United States have original jurisdiction, may be removed 27 by the defendant or the defendants, to the district court of the United States for the district 28 and division embracing the place where such action is pending.”). 1 “Consistent with the limited jurisdiction of federal courts, the removal statute is 2 strictly construed against removal jurisdiction.” Audo v. Ford Motor Co., No.: 3:18-cv- 3 00320-L-KSC, 2018 WL 3323244, at *1 (S.D. Cal. July 6, 2018) (citing Gaus v. Miles, 4 Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Therefore, the “burden of establishing that 5 removal is proper” always lies with the defendant. Gaus, 980 F.2d at 566. If there is any 6 doubt as to the propriety of removal, the court shall reject federal subject matter 7 jurisdiction. Id.; see also Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) 8 (“If a district court determines at any time that less than a preponderance of the evidence 9 supports the right of removal, it must remand the action to the state court.”). 10 A federal court must have subject matter jurisdiction to properly adjudicate a 11 dispute. The lack of subject matter jurisdiction may be raised at any time by either the 12 parties or the court. Fed. R. Civ. P. 12(h)(3). If a court determines it lacks subject matter 13 jurisdiction over a removed action at any stage of the proceedings, it must remand the 14 action. See Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997) (holding that remand for 15 lack of subject matter jurisdiction “is mandatory, not discretionary.”); see 28 U.S.C. § 16 1447(c) (“If at any time before final judgment it appears that the district court lacks subject 17 matter jurisdiction, the case shall be remanded.”). 18 III. REQUEST FOR JUDICIAL NOTICE 19 Before addressing the merits of the motion to remand, the Court first considers 20 requests for judicial notice by both parties. Defendants raise various evidentiary objections 21 against many of Plaintiffs’ exhibits. 22 A. Plaintiffs’ Request for Judicial Notice 23 Plaintiffs request the Court take judicial notice of several facts: (1) that the Orion 24 Property, falls on a portion of MCAS Miramar which is considered federal proprietary 25 jurisdiction, not federal exclusive jurisdiction; (2) that the Jurisdiction Map of MCAS 26 Miramar produced by the Department of the Navy’s Naval Facilities Engineering 27 Command pursuant to Defendants’ U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) 28 (“Touhy request”), attached as Exhibit A is not subject to any reasonable dispute; and (3) 1 that the Touhy request submitted by Defendants to the Department of the Navy (“DoN”), 2 attached as Exhibit B is not subject to any reasonable dispute. ECF No. 62-1 (“RJN”). 3 Further, Plaintiffs request the Court take judicial notice of fifteen additional 4 documents in their motion to remand, including the following: 5 (1) Exhibit C to RJN and Exhibit 1 to the Declaration of Lenden Webb (“Webb 6 Decl.”), The Honorable Jeffery T. Miller’s February 1, 2024, Order RE: Subject 7 Matter Jurisdiction in Childs v. San Diego Family Housing, LLC, 714 F. Supp. 8 3d 1262 (S.D. Cal. Feb. 1, 2024); 9 (2) Exhibit D to RJN and Exhibit 2 to the Webb Decl., The Supplemental Brief to 10 the United States’ Statement of Interest filed on December 18, 2023, in Childs; 11 (3) Exhibit E to RJN and Exhibit 3 to the Webb Decl., Defendants’ Notice of 12 Removal filed in the instant case on March 30, 2023 (ECF No. 1); 13 (4) Exhibit F to RJN and Exhibit 4 to the Webb Decl., Declaration of Daniel Turkin 14 in Support of Defendants’ Motion for Summary or Alternatively, Partial 15 Summary Judgment (ECF No. 42-2); 16 (5) Exhibit G to RJN, Declaration of Kristin Reyna Dehart in Support of 17 Defendants’ Motion for Summary Judgment or Alternatively, Partial Summary 18 Judgment (ECF No. 42-4); 19 (6) Exhibit H to RJN, Appellants’ SDFH and LMPM’s Opening Brief concerning 20 the appeal of Judge Miller’s February 1, 2024, Order RE: Subject Matter 21 Jurisdiction in Childs v. San Diego Family Housing, LLC, filed in the Ninth 22 Circuit Court of Appeals (Appellate Case No. 24-1256); 23 (7) Exhibit I to RJN, Appellees’ Answering Brief concerning Judge Miller’s 24 February 1, 2024, Order RE: Subject Matter Jurisdiction in Childs v. San Diego 25 Family Housing, LLC, filed in the Ninth Circuit Court of Appeals (Appellate 26 Case No. 24-1256); 27 (8) Exhibit J to RJN, Order of Immediate Possession of Parcels (Civil No. 1333- 28 SD) filed on March 3, 1952, in the United States District Court for the Southern 1 District of California, produced by the DoN in response to Defendants’ Touhy 2 request; 3 (9) Exhibit K to RJN, an internal memo from James Frey, Staff Counsel for the 4 State Lands Commission sent on September 9, 2009, concerning the 5 jurisdictional status of various portions of MCAS Miramar; 6 (10) Exhibit L to the Supplemental Request for Judicial Notice (“Supp. RJN”), 7 Plaintiffs’ December 20, 2024, Touhy request to the DoN’s Naval Litigation 8 Office; 9 (11) Exhibit M to Supp. RJN, Declaration of Scott Van Slyke (“Van Slyke Decl.”), 10 Senior Land Surveyor for the Department of the Navy’s Naval Facilities 11 Engineering Systems Command, Southwest (“NAVFAC Southwest”); 12 (12) Exhibit N to Supp. RJN, Plaintiff Saint Brown’s June 21, 2024, Freedom of 13 Information Act (“FOIA”) request; 14 (13) Exhibit O to Supp. RJN, a signed letter from Samuel L. Provost confirming 15 transmission of the relevant documentation pursuant to Brown’s FOIA request; 16 (14) Exhibit P to Supp. RJN, a Jurisdiction Map of MCAS Miramar, prepared by 17 MCAS Miramar’s Public Works Department, produced in response to Brown’s 18 June 21, 2024, FOIA request; and 19 (15) Exhibit Q to Supp. RJN, Excerpts from the “2011 Jurisdiction Survey” for 20 MCAS Miramar, including a table of contents, the Jurisdiction Summary, and 21 three (3) maps of MCAS Miramar that correspond to the Jurisdiction Survey, 22 produced in response to Brown’s June 21, 2024, FOIA request. 23 Federal Rule of Evidence 201 provides that “[t]he court may judicially notice a fact 24 that is not subject to reasonable dispute because it: (1) is generally known within the trial 25 court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources 26 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). 27 Defendants object to the Court taking judicial notice of the findings of fact regarding 28 the Orion Property and the Jurisdiction Map, including a zoomed-in version of the map 1 attached as Exhibit 8 to the Webb Decl., which the Court will discuss in more detail below. 2 Defendants have not opposed Plaintiffs’ request for judicial notice of the Touhy requests, 3 attached as Exhibits B and L. The Touhy requests appear to be appropriate items for the 4 Court to accept judicial notice. It appears that the accuracy of the source cannot be 5 questioned, and the item can be accurately and readily determined from the source. For that 6 reason, the request for judicial notice of Exhibits B and L is GRANTED. 7 Defendants also object to the Court taking judicial notice of Exhibits J, K, and M-Q. 8 The Court will discuss the objections to the listed exhibits below. 9 Exhibit C is a recent decision relating to issues germane to this case, containing an 10 opinion from within this district on federal enclave jurisdiction, although not for MCAS 11 Miramar. “It is unnecessary to request the court judicially notice … cases from California 12 and federal courts …. [T]he Court routinely considers such legal authorities in doing its 13 legal analysis without a party requesting they be judicially noticed.” Lucero v. Wong, No. 14 C 10-1339 SI (pr), 2011 WL 5834963, at *5 (N.D. Cal. Nov. 11, 2001); see also BP West 15 Coast Prods., LLC v. May, 347 F. Supp. 2d 898, 901 (D. Nev. 2004) (noting judicial notice 16 is unnecessary for courts to “take a case into account as non-binding precedent.”) Thus, the 17 request for judicial notice is DENIED as moot. 18 Exhibits D, E, F, G, H and I are all filings by parties in the instant action (Exhibits 19 E-G) or the Childs matter (Exhibits D, H and I). The Court takes judicial notice of the filing 20 of each of these documents, but not the truth of the facts cited therein. A court may take 21 judicial notice of the existence of matters of public record, such as a prior order or decision, 22 but not the truth of the facts cited therein that are subject to reasonable dispute. See Lee v. 23 City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); see also Interstate Natural Gas 24 Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953) (holding a court may 25 take judicial notice of records and reports of administrative bodies). The requests for 26 judicial notice of Exhibits D, E, F, G, H and I are GRANTED, subject to the limitations 27 noted. 28 / / / 1 B. Defendants’ Request for Judicial Notice 2 Defendants request the court take judicial notice of two documents: (1) Exhibit B to 3 the Declaration of Kristin Reyna DeHart (“DeHart Decl.”), which contains documents 4 produced by the DoN in response to Defendants’ Touhy request, relating to the history of 5 Camp Kearny and how it became MCAS Miramar; and (2) Exhibit C to the Dehart Decl., 6 which contains documents produced by the DoN in response to Defendants’ Touhy request, 7 relating to various parcel descriptions and acceptances of jurisdiction over multiple parcels 8 of property comprising MCAS Miramar. ECF No. 63-2. 9 Further, in support of their Motion for Summary Judgment or Alternatively, for 10 Partial Summary Judgment (“MSJ”), Defendants also requested the court take judicial 11 notice of five documents relating to jurisdiction: 12 (1) Exhibit A-1, Excerpts from the Final Environmental Impact Statement for 13 Military Family Housing in the San Diego Region, by NAVFAC, June 2004; 14 (2) Exhibit B-1, Excerpts from the Department of Defense (“DoD”) Manual, DoD 15 Housing Management, Number 4165.63-M, October 2010; 16 (3) Exhibit C-1, County Assessor/Recorder stamped maps and ownership 17 information relating to MCAS Miramar; 18 (4) Exhibit D-1, United States Marine Corps map of the “Main Station” of Marine 19 Corps Air Station Miramar obtained from the Marine Corps Community 20 Services Miramar website, www.mcasmiramar.com, which includes the 21 location of Plaintiffs’ home on Orion Drive within the military installation just 22 southwest of the North Gate; 23 (5) Exhibit E-1, Excerpts from the United States Marine Corps F-35B West Coast 24 Basing Final Environmental Impact Statement, v.1, by NAVFAC, 2010; 25 Plaintiffs have not opposed Defendants’ request for judicial notice of the documents 26 received as a result of the Touhy request, attached as Exhibits B and C or Exhibits A-1 to 27 E-1, filed in support of Defendants’ MSJ. The documents from the Touhy request and 28 Exhibits A-1 to E-1 appear to be appropriate items for the Court to accept judicial notice. 1 It appears that the accuracy of the source cannot be questioned, and the items can be 2 accurately and readily determined from the source. For that reason, the request for judicial 3 notice of Exhibits B and C and Exhibits A-1 to E-1 is GRANTED. 4 C. Evidentiary Objections 5 The Court now addresses the various objections Defendants lodged to evidence and 6 declarations submitted by Plaintiffs. 7 1. Declaration of Lenden Webb 8 Defendants generally object that the declaration lacks foundation and gives improper 9 lay opinion testimony and fails to present adequate foundation for or substantiate his 10 conclusions regarding jurisdiction of MCAS Miramar that Mr. Webb contends to be fact, 11 solely based upon his review and assessment of certain documents. ECF No. 63-1. 12 Defendants specifically object to paragraphs 8-10, and 12-20. Id. The Court will address 13 Defendants’ specific arguments below. 14 a. Paragraph 8 15 In paragraph 8, it states: 16 Plaintiffs reject each of these claims and contend that remanding the case to be litigated in state court is proper because: (1) the events alleged in the 17 Complaint did not take place on a federal enclave and instead took place on a 18 portion of Marine Corps. Air Station Miramar that falls under federal proprietary jurisdiction; (2) Defendants are not a federal agency; and (3) 19 Defendants did not act under a federal officer. In essence, remanding the 20 instant case is proper here for the same reasons the Childs case was remanded.

21 Webb Decl. ¶ 8. 22 Defendants object to this testimony as pure argument of counsel, a legal conclusion 23 and lay opinion of counsel. ECF No. 63-1 at 4. The Court agrees. This paragraph offers no 24 facts and is improper argument presented in an improper format. These substantive 25 arguments would be properly included in a memorandum of points and authorities in 26 support of or opposition to a motion, not a declaration. See Oliver v. Hot Topic, Inc., No. 27 10cv1111 BEN (AJB), 2010 WL 4261473, at *1 (S.D. Cal. July 27, 2010); see also 28 1 Roosevelt Irrigation District v. United States, No. CV-15-00448-PHX-JJT, 2019 WL 2 1087939, at *4 (D. Ariz. Mar. 7, 2019) (precluding a witness from testifying as to the legal 3 conclusion of whether the United States possessed a legal interest in certain property). The 4 objection is SUSTAINED. 5 b. Paragraph 9 6 In paragraph 9, it states: 7 The Childs case and the instant case involve the exact same Defendants, and an extremely similar fact pattern. Both cases involve military families that 8 brought suit for injuries and damages alleged to have been caused, generally, 9 by Defendants San Diego Family Housing, LLC and Lincoln Military Property Management, LP’s negligence in the ownership, maintenance, and 10 management of on-base housing. The only real distinction between the two 11 (2) cases is that the Childs matter deals with Defendants’ conduct at Coronado, while the instant case deals with Defendants’ conduct at Marine 12 Corps. Air Station Miramar (“MCAS Miramar”). 13 Webb Decl. ¶ 9. 14 Defendants object to this testimony as pure argument of counsel, and as irrelevant 15 to this case as to the federal enclave argument. ECF No. 63-1 at 5. The Court agrees. This 16 is improper argument and inappropriate for this declaration. The objection is 17 SUSTAINED. 18 c. Paragraph 10 19 In paragraph 10, it states: 20 The issue of whether Defendants can properly assert jurisdiction based upon 21 the federal agency or federal officer statutes was analyzed by the Hon. Judge 22 Miller in detail in the Childs matter, and nothing about the instant case would impact that analysis in any way. Both cases involve the same entities, doing 23 the same kind of work under the same operative agreements with the 24 government. In short, Defendants were not held to be a federal agency, nor were they held to have acted under a federal officer, though this issue is now 25 on appeal, it is notable that even the United States itself disagrees with 26 Defendants’ position concerning federal officer/agency jurisdiction. Plaintiffs agree with the Hon. Judge Miller’s analysis of this issue and contend that the 27 same should be upheld in the instant case. 28 1 Webb Decl. ¶ 10. 2 Defendants object to this testimony as pure argument of counsel, and as irrelevant 3 to this case on the issues of exclusive federal jurisdiction at MCAS Miramar. ECF No. 63- 4 1 at 6. The Court agrees. Once again, this is improper argument and inappropriate for this 5 declaration. The objection is SUSTAINED.1 6 d. Paragraph 12 7 In paragraph 12, it states: 8 The question of what kind of jurisdiction applies the Brown family’s former home at MCAS Miramar (1424 Orion Drive) was addressed to some extent in 9 conjunction with Defendants’ recently-filed Motion for Summary Judgment 10 (Docket # 42). In support of their claim that 1424 Orion Drive rests on a federal enclave, Defendants submitted an Environmental Impact Statement 11 for Military Family Housing, a copy of an excerpt from the Department of 12 Defense Manual, a County Assessor/Recorder Map of MCAS Miramar, and a map of the “Main Station” of Marine Corps Air Station Miramar from the 13 military base’s website (Docket #42-4). Attached hereto as Exhibit “5”, and 14 as Exhibit “G” to the Request for Judicial Notice submitted concurrently herewith, is a true and correct copy of the Declaration of Kristin Reyna Dehart 15 in Support of Defendants’ Motion for Summary Judgment which contains the 16 aforementioned documents as exhibits. These are the same documents submitted in support of Defendants’ Notice of Removal (Docket # 1-2). 17 However, conspicuously absent from any of the documentation Defendants 18 submitted is any specific analysis of the jurisdictional make-up of MCAS Miramar, or any explanation of the boundaries between different types of 19 jurisdiction on base. This defect is particularly notable when compared to the 20 specificity and detail, as it relates to the question of jurisdiction, outlined in the documentation produced in support of the instant Motion. 21

22 Webb Decl. ¶ 12. 23 Defendants object to this testimony as pure argument of counsel, not appropriate for 24 a declaration, and a pure legal conclusion. ECF No. 63-1 at 7. The Court agrees. This 25 26 27 1 Defendants further object to this testimony because it contradicts the evidence based on a recent amicus brief filed by the United States. ECF No. 63-1 at 6. Considering that the Court is SUSTAINING the 28 1 paragraph contains improper argument and is inappropriate for a declaration. The objection 2 is SUSTAINED. 3 e. Paragraph 13 4 Defendants object to lines 17-20 in paragraph 13. That section states: 5 The remaining basis for Defendants’ removal of the instant action is Defendants’ contention that the events alleged in the Complaint took place on 6 a federal enclave. However, this claim appears to be inaccurate based on 7 additional documents our office has received pursuant to Defendants’ own Touhy request. 8

9 Webb Decl. ¶ 13:17-20. 10 Defendants object to this testimony as pure argument of counsel. ECF No. 63-1 at 11 8. The Court agrees. These lines in paragraph 13 are improper argument and is 12 inappropriate for a declaration. The objection is SUSTAINED. 13 f. Paragraph 14 14 In paragraph 14, it states: 15 In response to the Touhy request, the Department of the Navy’s Naval Facilities Engineering Command produced a document entitled “Jurisdiction 16 Map” which clearly indicates that the northeast portion of the MCAS Miramar 17 – and specifically the Subject Property at 1424 Orion Drive, falls on a portion of MCAS Miramar held under Proprietary Jurisdiction. A true and correct 18 copy of this Jurisdiction Map is attached hereto as Exhibit “7” and is 19 incorporated herein by reference, and as Exhibit “A” to the Request for Judicial Notice submitted concurrently herewith. This Jurisdiction Map was 20 thereafter produced to my office via download link from Defendants’ counsel. 21 Webb Decl. ¶ 14. 22 Defendants object to this testimony on the grounds of hearsay, speculation and lack 23 of foundation and personal knowledge as to the conclusions Mr. Webb draws from the 24 documents and that it states a legal conclusion. ECF No. 63-1 at 9-11. The portion of this 25 paragraph that states the map “clearly indicates that the northeast portion of the MCAS 26 Miramar – and specifically the Subject Property at 1424 Orion Drive, falls on a portion of 27 MCAS Miramar held under Proprietary Jurisdiction,” is improper argument and 28 1 inappropriate for a declaration. The objection to this portion of paragraph 14 is 2 SUSTAINED. The objection to the remainder of the paragraph is OVERRULED. The 3 Court will address the objection to Exhibit A to RJN below. 4 g. Paragraph 15 5 In paragraph 15, it states: 6 Attached hereto as Exhibit “8” is a true and correct “zoomed-in” copy of the Jurisdiction Map (Exhibit “7”) which provides a more clear view of the 7 location of 1424 Orion Drive compared to the jurisdictional boundaries 8 outlined on the map. Said differently office simply zoomed in on 1424 Orion Drive on the Jurisdiction Map, and took a screenshot for the Court’s 9 convenience – the screenshot is attached hereto as Exhibit “8”. 10 Webb Decl. ¶ 15. 11 Defendant objects to this testimony and Exhibit 8 on the grounds that such 12 statements alone are not sufficient to authenticate the map. The Court will address 13 authentication of Exhibit 8 below. 14 h. Paragraph 16 15 Defendants object to lines 15-18 in paragraph 16. That section states: 16 As previously stated, while the Childs case relates to a property at Naval 17 Amphibious Base Coronado (NAB Coronado), the issues on appeal in Childs 18 are near identical to those at issue in the instant case. More specifically, the analysis of Defendants’ assertion of federal officer jurisdiction and federal 19 agency jurisdiction is the same between the two cases. 20 Webb Decl. ¶ 16:15-18. 21 Defendants object to this testimony as pure argument of counsel. The Court agrees. 22 These two sentences contain improper argument and are not appropriate for a declaration. 23 The objection is SUSTAINED. 24 i. Paragraph 17 25 Defendants object to lines 23-26 in paragraph 17. That section states: 26 As previously stated, while the Child case relates to a property at Naval 27 Amphibious Base Coronado (NAB Coronado), the issues on appeal in Childs 28 are near identical to those at issue in the instant case. More specifically, the 1 analysis of Defendants’ assertion of federal officer jurisdiction and federal agency jurisdiction is the same between the two cases. 2

3 Webb Decl. ¶ 17:23-26. 4 Defendants object to this testimony as pure argument of counsel. The Court agrees. 5 These two sentences contain improper argument and are not appropriate for a declaration. 6 The objection is SUSTAINED. 7 j. Paragraph 18 8 In paragraph 18, it states: 9 On Friday October 25, 2024 my office received a copy of numerous additional documents produced by the Department of the Navy to Defendants pursuant 10 to Defendants’ Touhy request. Included in this production was (1) the Order 11 of Immediate Possession of Parcels (Civil No. 1333-SD) filed on March 3, 1952 in the United States District Court for the Southern District of California; 12 and (2) an internal memo from James Frey, Staff Counsel for the State Lands 13 Commission sent on September 9, 2009 concerning the jurisdictional status of various portions of MCAS Miramar, and the attached “Navy supplied 14 jurisdiction map: related to acquisitions by the United Staes for MCAS 15 Miramar from 1939 onward. A true and correct copy of both these documents are attached hereto as Exhibit “11” and Exhibit “12” respectively, and are also 16 attached to the Request for Judicial Notice submitted concurrently herewith 17 as Exhibits “J” and “K”.

18 Webb Decl. ¶ 18. 19 Defendants object to this testimony on the grounds of hearsay, speculation and lack 20 of foundation and personal knowledge as to the conclusions Mr. Webb draws from the 21 documents. ECF No. 63-1 at 13-15. The objection is OVERRULED, as Mr. Webb appears 22 to lay the foundation as to how the documents were received, but the Court will separately 23 address each of the mentioned documents below. 24 k. Paragraph 19 25 In paragraph 19, it states: 26 These documents further demonstrate that the 1424 Orion Drive falls on a 27 portion of MCAS Miramar held under proprietorial jurisdiction. The Complaint in Condemnation (Civil No. 1333) was filed on March 3, 1952, 28 1 and is referenced in all relevant jurisdictional maps as the method by which the United States acquired the land on which 1424 Orion Drive is located (see 2 the jurisdictional maps attached hereto as Exhibit “7” and Exhibit “12”). 3 This is important because in 1951, California enacted a statute stating that “the Legislature of California consents to the acquisition by the United States of 4 land within this State and upon and subject to” a series of “express conditions 5 and reservations,” including that “[t]he United States must in writing have assented to acceptance of jurisdiction over the land upon and subject to” those 6 “condition and reservations,” and that “the State Lands Commission” must 7 have found the conditions to be satisfied “and declared that [the] acquisition is in the interest of the State.” (1951 Cal. Stat. ch. 875, § 1). 8

9 Webb Decl. ¶ 19. 10 Defendants object to this testimony on the grounds of hearsay, speculation, lack of 11 foundation and personal knowledge as to the conclusions Mr. Webb draws from the 12 documents. ECF No. 63-1 at 16-18. Defendants further object that this testimony states a 13 legal conclusion and is pure argument of counsel. Id. The Court agrees. This testimony 14 contains improper argument regarding the jurisdictional status of the Orion Property and 15 is not appropriate for a declaration. The objection is SUSTAINED. 16 l. Paragraph 20 17 In paragraph 20, it states: 18 The 2009 memo from the State Lands Commission further demonstrates that the land falls under proprietorial jurisdiction, both as directly stated in the first 19 paragraph of Mr. Frey’s memorandum, and as demonstrated in the attached 20 maps and tables. While certain plots of land are listed in the “Federal Jurisdiction” table as being under “partial” jurisdiction, the land acquired by 21 Civil No. 1333 is not listed, and is instead lumped into the ”Remainder” row 22 of the table, for which the degree of jurisdiction listed is “Proprietorial Interest Only”. 23

24 Webb Decl. ¶ 20. 25 Defendants object to this testimony on the grounds of hearsay, speculation and lack 26 of foundation and personal knowledge as to the conclusions Mr. Webb draws from the 27 documents. ECF No. 63-1 at 19. Defendants further object that this testimony is 28 speculative, conclusory, makes a legal conclusion and is pure argument of counsel. Id. at 1 20-21. The Court agrees. This testimony is improper argument which is inappropriate for 2 a declaration. The objection is SUSTAINED. 3 2. Findings of Fact 4 Defendants object to the Plaintiffs’ request for judicial notice of the following fact: 5 the Orion Property, falls on a portion of MCAS Miramar which is considered federal 6 proprietary jurisdiction, not federal exclusive jurisdiction. Defendants’ objection is 7 SUSTAINED and the request for judicial notice of this alleged fact is DENIED since the 8 proposed fact is subject to “reasonable dispute” between the parties. See Lee, 250 F.3d at 9 688. 10 3. Exhibit A – Jurisdiction Map 11 Defendants object to the Jurisdiction Map, and a zoomed-in version, attached as 12 Exhibit 8 to the Webb Decl. on the grounds that Plaintiffs have not properly authenticated 13 the map. ECF No. 63-1 at 3. Further, Defendants argue that the Van Slyke Decl. is 14 insufficient to authenticate the map. ECF No. 69 at 3. The Van Slyke Decl. is “silent on 15 when exactly the map was prepared … what was relied upon to prepare it, whether it was 16 accurate as of th[e] time it was prepared, [and] whether it is still accurate as of today.” Id. 17 Defendants correctly argue that the Van Slyke Decl. does not address the map’s origins or 18 accuracy. Id. The declaration is eight paragraphs in length, but only three paragraphs 19 address the map and state as follows: 20 I am generally familiar with the types of records and documents that the NAVFAC Southwest Cadastral Department maintains with regard to its 21 official responsibilities, including maps. 22 The document attached hereto as Exhibit A is a true and correct copy of a 23 document entitled “JURISDICTION MAP” of “Naval Air Station, Miramar, 24 California” (such installation today is identified as Marine Corps Air Station Miramar (MCAS Miramar)), prepared by the Department of the Navy, Naval 25 Facilities Engineering Command. 26 The document attached hereto as Exhibit A is a DON official record kept in 27 the regular course of the DON’s business. 28 1 Van Slyke Decl. ¶ 5-7. 2 Plaintiffs argue that their December 20, 2024, Touhy request, along with the Van 3 Slyke Decl., the signed letter from Samuel Provost, the MCAS Miramar Jurisdiction Map, 4 prepared by the Public Works Department for MCAS Miramar, and various excerpts from 5 the 2011 Jurisdiction Survey are sufficient supporting documentation providing sufficient 6 grounds for this Court to take judicial notice of the Jurisdiction Map. ECF No. 68 at 2. 7 Further, Plaintiffs have repeatedly argued the similarities of this case and the Childs case. 8 In Childs, the United States Government intervened and argued that the disputed 9 property was not within a federal enclave. Childs, 714 F. Supp. 3d at 1268. In support of 10 their argument, the United States submitted a parcel map and a lengthy declaration of Lonie 11 Cyr, a Senior Land Surveyor at NAVFAC Southwest in support of its parcel map. Id. at 12 1269. In his declaration, Mr. Cyr provided a detailed historical analysis of the jurisdictional 13 status of NAB Coronado and averred that he had the “authority and responsibility for 14 managing United States Navy and Marine Corps land interests,” and reviewed “United 15 States Navy and California State Lands Commission documents.” Id. Nonetheless, the 16 Court sustained an objection to the parcel map submitted because the Government did not 17 provide any indication of the map’s origin and as a result the Court could not “readily 18 determine the accuracy of the information contained in th[e] map—and cannot simply 19 assume th[e] information to be true.” Id. at 1270. 20 First, of the documents Plaintiffs cite to support the Court taking judicial notice of 21 the Jurisdiction Map, only the Van Slyke Decl. discusses the Jurisdiction Map. The other 22 documents do not mention the Jurisdiction Map and have no effect on the Court’s decision 23 to take judicial notice of the document. In addition, there are questions of reliability with 24 several of the cited documents, which the Court will address below. The Court will 25 therefore focus its attention to the Van Slyke Decl. 26 The Van Slyke Decl. includes far less information than the declaration in Childs. 27 The Van Slyke Decl. does not describe Mr. Van Slyke’s personal knowledge of the 28 Jurisdiction Map, nor its origin. At most, Mr. Van Slyke’s declaration provides that the 1 map is currently present in NAVFAC’s files. However, the declaration is lacking any 2 sufficient basis for the Court to take judicial notice of the map or its contents. See Khoja v. 3 Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018) (overruled District Court’s taking 4 judicial notice of facts within a document where the accuracy and interpretation of the facts 5 remained in dispute); see also Malheur Forest Fairness Coal. v. Iron Triangle, LLC, 699 6 F. Supp. 3d 1086, 1102-03 (D. Or. 2023) (declining to take judicial notice of map where 7 court could not assume accuracy of information contained within it) Therefore, 8 Defendants’ objection is SUSTAINED and Plaintiffs’ request for judicial notice is 9 DENIED. 10 4. Exhibit J – Order of Immediate Possession of Parcels 11 Defendants object to the Order of Immediate Possession of Parcels, on the grounds 12 that Plaintiffs have not authenticated the items, nor provide lay opinion testimony on the 13 meaning of the items, hearsay and lack of personal knowledge regarding the creation of the 14 items. ECF No. 63-1 at 2-3, 13-15. 15 The Order of Immediate Possession of Parcels was received from the DoN in 16 response to Defendants’ Touhy request. A court may take judicial notice of the existence 17 of matters of public record, but not the truth of the facts cited therein that are subject to 18 reasonable dispute. See Lee, 250 F.3d at 689-90; see also Interstate Natural Gas Co., 209 19 F.2d at 385 (holding a court may take judicial notice of records and reports of 20 administrative bodies). When a court takes judicial notice of a public record, “it may do so 21 not for the truth of the facts recited therein, but for the existence of the [record], which is 22 not subject to reasonable dispute over its authenticity.” Malheur Forest Fairness Coalition, 23 699 F. Supp. 3d at 1102 (internal citations and quotations omitted). The objection is 24 OVERRULED and the request for judicial notice of Exhibit J is GRANTED, subject to 25 the limitations noted. 26 5. Exhibit K – Internal Memo from James Frey 27 Defendants object to the Internal Memo from James Frey, on the grounds that 28 Plaintiffs have not authenticated the items, nor provide lay opinion testimony on the 1 meaning of the items and has no personal knowledge regarding the creation of the items. 2 ECF No. 63-1 at 2-3, 13-15. Further, Defendants note that the internal memo from Mr. 3 Frey contains speculation and hearsay as Mr. Frey calls out discrepancies in the documents 4 and maps from the Navy with acquisition documents relating to Camp Kearny. ECF No. 5 63-1 at 14-15. 6 In the internal memo, James Frey, staff counsel at the California State Lands 7 Commission, sent an email to a Captain Crosswell. The email was dated September 9, 8 2009, and had several jurisdiction maps attached to it. The memo and attached documents 9 were received from the DoN in response to Defendants’ Touhy request. As mentioned 10 above, a court may take judicial notice of the existence of matters of public record, but not 11 the truth of the facts cited therein that are subject to reasonable dispute. See Lee, 250 F.3d 12 at 689-90. The objection is OVERRULED and the request for judicial notice of Exhibit K 13 is GRANTED, subject to the limitations noted. 14 6. Exhibit M – Declaration of Scott Van Slyke 15 Defendants object to the declaration of Mr. Van Slyke as hearsay, arguing that 16 Plaintiffs failed to submit any evidence showing that the declaration of Mr. Van Slyke was 17 received specifically in response to their Touhy request. ECF No. 69-2 at 6. Further, 18 Defendants argue that the declaration lacks foundation and sufficient support for Mr. Van 19 Slyke’s credentials, does not include any curriculum vitae with his declaration, nor does he 20 stamp it with his land surveyor’s stamp, nor does he include his license number or any 21 description of his duties and responsibilities for NAVFAC. Id. at 6-7. 22 The Court notes the issues that Defendants have cited and as discussed above, the 23 declaration is lacking sufficient foundation for the Jurisdiction Map. However, the 24 declaration appears to be from the personal knowledge of Mr. Van Slyke and is sufficient 25 to establish generally that he is employed by the DoN as a Senior Land Surveyor at 26 NAVFAC Southwest for the stated length of time and for Plaintiffs’ filing of a Touhy 27 request. Defendants’ objections to that information are, therefore, OVERRULED and the 28 request for judicial notice is GRANTED. 1 However, to the extent that Mr. Van Slyke is familiar with the “types of records and 2 documents that NAVFAC Southwest maintains with regard to its official responsibilities, 3 including maps,” as well as references to the Jurisdiction Map lack the proper foundation. 4 “Personal knowledge may be inferred from declarations that concern areas within the 5 declarant’s job responsibilities.” Silva v. AvalonBay Cmtys., Inc., No. LA CV15-04157 6 JAK (PLAx), 2015 WL 11422302, at *4 n.1 (C.D. Cal. Oct. 8, 2015). Here, Mr. Van Slyke 7 does not aver how in his current position he would have access to documents that NAVFAC 8 Southwest maintains, nor how he would have knowledge of and access to the Jurisdiction 9 Map. As to the remainder of his declaration related to those issues and the type of 10 jurisdiction over the parcel of land on which the Orion Property sits, Defendants’ 11 objections are SUSTAINED. 12 7. Exhibit N – Plaintiff Saint Brown’s Freedom of Information Act Request 13 Defendants object to this exhibit as lacking personal knowledge, since there was no 14 declaration from Plaintiff Saint Brown that he submitted this request. ECF No. 69-2 at 9. 15 Defendants also argue that Brown did not make an official FOIA request, based on the 16 requirements for such a request. Id. The Court agrees, Mr. Webb lacks personal knowledge 17 as to the FOIA request. However, in Brown’s declaration submitted in support of Plaintiffs’ 18 Opposition to Defendant’s Motion for Summary Judgment, Brown stated that he submitted 19 a FOIA request and would provide the documents from the request to his attorney as soon 20 as he received them. Declaration of Saint Brown in Opposition to Defendant’s Motion for 21 Summary Judgment; ECF No. 48-2 ¶ 10 (“Brown Decl.”). Based on the testimony of 22 Brown, that is sufficient for the Court to infer Brown possesses relevant personal 23 knowledge as to the FOIA request and any documents received as a result of the FOIA 24 request. Defendants’ objection is OVERRULED and the request for judicial notice is 25 GRANTED. 26 8. Exhibit O – Letter from Samuel Provost 27 Defendants object to this exhibit as lacking personal knowledge and that the 28 document was not properly authenticated. ECF No. 69-2 at 9. The documents were 1 addressed to Brown and were received pursuant to Brown’s FOIA request. Since there is 2 sufficient personal knowledge regarding Brown’s FOIA request, as stated above, and the 3 letter is from a government agency, the objection is OVERRULED and the request for 4 judicial notice is GRANTED. 5 9. Exhibit P – Jurisdiction Map from 2014 6 Defendants object to this exhibit on the grounds of hearsay, lack of foundation and 7 personal knowledge of Mr. Webb as to the FOIA request and what was received or not 8 received in response to it. ECF No. 69-2 at 10. Defendants also object that the documents 9 are not properly authenticated. Id. As stated above, the documents were received as a result 10 of Brown’s FOIA request, and the documents appear to be a public record. A court may 11 take judicial notice of the existence of matters of public record, but not the truth of the facts 12 cited therein that are subject to reasonable dispute. See Lee, 250 F.3d at 689-90. The 13 objection is OVERRULED and the request for judicial notice is GRANTED. 14 10. Exhibit Q – 2011 Jurisdiction Survey 15 Defendants object to the 2011 Jurisdiction Survey on the grounds of hearsay, and 16 lack of foundation and personal knowledge. ECF No. 69-2 at 11. For the same reasons as 17 stated regarding Exhibit P, the objection is OVERRULED and the request for judicial 18 notice is GRANTED. 19 IV. LEGAL ANALYSIS 20 Defendants argue this Court has federal subject matter jurisdiction on three bases. 21 First, Defendants contend this Court has federal subject matter jurisdiction pursuant to 28 22 U.S.C. § 1331, because the events alleged in Plaintiffs’ complaint occurred on a federal 23 enclave. ECF No. 1 ¶ 4. Second, Defendants contend this Court has federal subject matter 24 jurisdiction pursuant to 28 U.S.C. § 1442, because SDFH and LMPM were, at all relevant 25 times, (a) acting under a federal officer, and (b) because SDFH is a federal agency. Id. ¶¶ 26 24-30. 27 / / / 28 / / / 1 A. Federal Enclave Doctrine 2 A federal enclave is land over which the federal government exercises exclusive 3 legislative jurisdiction. See Paul v. United States, 371 U.S. 245, 263-64 (1963); United 4 States v. Jenkins, 734 F.2d 1322, 1326 (9th Cir. 1983). Article I, section 8, clause 17 of the 5 United States Constitution grants the federal government power “[t]o exercise exclusive 6 Legislation … over all Places purchased by the Consent of the Legislature of the State in 7 which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and 8 other needful Buildings.” U.S. Const., Art. I, § 8, cl. 17. A federal enclave is created where 9 the federal government acquires land by purchase or condemnation with the consent of the 10 state or commonwealth in which the land is located. See Humble Pipe Line Co. v. 11 Waggonner, 376 U.S. 369, 371-72 (1964). Federal enclaves include “numerous military 12 bases, federal facilities, and even some national forests and parks.” Azhocar v. Coastal 13 Marine Servs., Inc., No. 13-CV-155 BEN (DHB), 2013 WL 2177784, at *1 (S.D. Cal. May 14 20, 2013) (quoting Allison v. Boeing Laser Technical Servs., 689 F.3d 1234, 1235 (10th 15 Cir. 2012); see also U.S. Const. art. I, § 8, cl. 1). 16 For land acquired by the United States after 1940, the Act of October 9, 1940, 40 17 U.S.C. § 255 (re-codified as 40 U.S.C. § 3112) applies. See Childs, 714 F. Supp. 3d at 18 1271. Under the Act, “United States agencies and authorities may accept exclusive or 19 partial jurisdiction over lands acquired by the United States by filing a notice with the 20 Governor of the state on which the land is located or by taking other similar appropriate 21 action.” Adams v. United States, 319 U.S. 312, 313 (1943); see also United States v. 22 Cassidy, 571 F.2d 534, 536 (10th Cir. 1978) (“As to lands acquired by the United States 23 after 1940, it has been held that the United States does not acquire jurisdiction over lands 24 acquired by it unless it gives notice of acceptance.”). 25 1. MCAS Miramar 26 Defendants contend that MCAS Miramar and the Orion Property are on a federal 27 enclave. Plaintiffs contend that the Orion Property is on a parcel of MCAS Miramar that is 28 considered proprietary jurisdiction. Plaintiffs primarily rely on the Jurisdiction Map 1 (Exhibit A to RJN) to support their position, but for the reasons discussed above, the Court 2 declines to take judicial notice of the map and does not consider it. The Court will now 3 analyze the remaining evidence available to determine the jurisdictional status of the Orion 4 Property. 5 Defendants argue that Plaintiffs attached several maps to their motion and did 6 nothing to research or attempt to cross-check the attached maps against the numerous 7 acquisition documents’ property descriptions to confirm that the maps were correctly 8 drawn or evaluate whether more reference documents would be needed to do so. ECF No. 9 63 at 6. Defendants further argue that the origins and purposes of the maps Plaintiffs present 10 are unclear as the maps were among several hundred pages of reports and documents 11 produced by the DoN. Id. Additionally, Defendants argue that NAVFAC has authored two 12 reports, in 2004 and 2010, and via the established history of Camp Kearny on which the 13 Court has relied several times to conclude that MCAS Miramar is under exclusive 14 legislative jurisdiction. Id. at 7. 15 Plaintiffs contend that the Orion Property is on a parcel of MCAS Miramar that is 16 considered proprietary jurisdiction based on documents obtained after a Touhy request by 17 both parties. ECF No. 62-2 at 11. Additionally, Plaintiffs argue that the Order of Immediate 18 Possession of Parcels (Exhibit J to RJN) proves that the Orion Property is on a parcel of 19 MCAS Miramar that was purchased in 1952 and no notice of acceptance per 40 U.S.C. § 20 3112 has ever been produced in the instant case. ECF No. 62-2 at 12; Exhibits A, J, K to 21 RJN. 22 Further, Plaintiffs argue that the documentation Defendants have submitted in this 23 case regarding the issue of jurisdiction at MCAS Miramar is silent as to the specific parcel 24 at issue in this case. ECF No. 62-2 at 13. Plaintiffs also argue that NAVFAC Environmental 25 Impact Studies and prior cases cited by Defendants do not address the parcel of land that 26 the Orion Property sits on MCAS Miramar. ECF No. 65 at 2. Further, Plaintiffs argue that 27 the letter and attachments from James Frey support the conclusion that the portion of 28 MCAS Miramar on which the Orion Property lies was acquired in 1952. Id. at 4. Lastly, 1 Plaintiffs argue that the additional documentation produced pursuant to Plaintiffs’ FOIA 2 request, a jurisdiction map of MCAS Miramar prepared by MCAS Miramar’s Public 3 Works Department on September 26, 2014 (Exhibit P to Supp RJN); and a Jurisdiction 4 Summary and the table of contents of a 2011 Jurisdiction Survey performed at MCAS 5 Miramar with corresponding maps of MCAS Miramar (Exhibit Q to Supp RJN) support 6 Plaintiffs’ assertion that the Orion Property lies on a portion of MCAS Miramar that is 7 proprietary jurisdiction. ECF No. 68 at 6. 8 In response to the 2009 email from James Frey, Defendants argue that the email 9 indicates that there is a discrepancy between the Camp Kearny records and the maps on 10 which Plaintiffs try to rely. Id. at 7-8. Defendants also argue that Mr. Frey speculates as to 11 land acquisitions in his email, but there is no evidence to support his statement that the 12 property was sold at some point and then re-purchased later. Id. at 8. The Court agrees. 13 Additionally, Defendants argue that the Court should take NAVFAC’s written 14 pronouncement in 2010, a year after Mr. Frey’s letter, as the best evidence from the Navy 15 on the jurisdictional status of MCAS Miramar. Id. 16 The Order of Immediate Possession of Parcels, Civil No. 1333, indicates that large 17 swaths of land were purchased in 1952. Exh. J To RJN; ECF No. 62-1 at 610-624. 18 However, throughout the document, there are paragraphs that appear to be crossed out, 19 with an “x” through them. See generally ECF No. 62-1 at 614, 617, 623-624. It is unclear 20 who crossed out these paragraphs, why they were crossed out and the effect of crossing 21 them out. Without any information, it is difficult for the Court to draw any conclusions 22 from this document. Further, the information provided in the 2011 Jurisdiction Survey 23 states Civil No. 1333 was acquired in 1953. Exh. Q to Supp. RJN Additionally, several of 24 the maps submitted with the memo from James Frey notes that a declaration of taking, 25 dated November 19, 1952, April 13, 1953, and June 15, 1953, was submitted for Civil No. 26 1333, which conflicts with other maps among the maps attached to James Frey’s memo, as 27 several maps indicate that only a small portion of MCAS Miramar is under exclusive 28 federal jurisdiction. Exh. K to RJN at 629, 633, 637. 1 Additionally, the third map in the 2011 Jurisdiction Survey contradicts the first two 2 maps, and the maps attached to James Frey’s letter. The third map depicts that land shown 3 as proprietary jurisdiction in the first two maps, and the maps attached to James Frey’s 4 letter are actually federal exclusive jurisdiction. Exh. Q to Supp. RJN at 3. There is no 5 discussion as to when any of these maps were created, who created them or the accuracy 6 of the maps, including the map in Exhibit P to Supp. RJN. The third map also disputes 7 maps from the Order of Immediate Possession of Parcels, Civil No. 1333 (Exh. J to RJN). 8 The documents themselves create a reasonable dispute regarding their accuracy. Although 9 the Court took judicial notice of the documents generally, the Court does not take judicial 10 notice of the contents of the maps for the stated reasons. See Malheur Forest Fairness 11 Coal., 699 F. Supp. 3d at 1102. Since the maps contradict themselves, the Court cannot 12 draw any conclusions from any of the maps regarding the jurisdictional status of the Orion 13 Property and does not consider any of the maps in its evaluation of the jurisdictional status 14 of the Orion Property. 15 Next, the Court considers the email from James Frey. In the email from James Frey, 16 Mr. Frey discussed five acquisitions of land by the United States between 1939 and 1943 17 and letters of acceptance for each acquisition. Exh. K to RJN. Mr. Frey then stated that a 18 Navy supplied jurisdiction map concurs on those acquisitions and showed the degree of 19 jurisdiction to be proprietorial. Id. Mr. Frey was unable to give dates of the acquisitions as 20 he said they were not provided. Id. Mr. Frey then acknowledged a discrepancy between the 21 jurisdiction maps he attached, the acquisition history and the establishment of Camp 22 Kearny in the World War I era. Id. Mr. Frey then speculated that the United States sold the 23 World War I lands at some point and then reacquired them during World War II, but does 24 not provide any records or documentation to support that statement that the land was sold 25 and later re-purchased. Id. However, Mr. Frey does confirm that he’s “researched the [State 26 Land] Commission’s files for jurisdiction at Miramar [and] [o]ur file shows that 27 historically Camp Kearny was located at or near the present facility during WWI and recites 28 that the United States has owned the property since that era.” Id. Mr. Frey’s email and the 1 attached documents fail to show that the Orion Property is on a portion of land that is 2 subject to proprietary jurisdiction. 3 The Court now considers the remaining documents submitted by the parties and prior 4 court decisions regarding the jurisdictional history of MCAS Miramar. The Court agrees 5 with Defendant that the NAVFAC authored reports, in 2004 and 2010, and prior court 6 decisions regarding the jurisdictional history of MCAS Miramar support Defendants’ 7 position that MCAS Miramar and the Orion Property are part of a federal enclave. See ECF 8 No. 42-4 at 57 (“MCAS Miramar is considered to be under exclusive legislative 9 jurisdiction.”). 10 The Court addressed the ownership history of MCAS Miramar in Doe v. Camp 11 Pendleton & Quantico Housing, LLC, No. 20-cv-224-GPC-AHG, 2020 WL 1890576 (S.D. 12 Cal. Apr. 16, 2020). That case involved facts similar to those at issue here, and the same 13 defendants and counsel as appear in this case. The Court now repeats the ownership history 14 of MCAS Miramar from Doe and the attached exhibits in this action. 15 Camp Kearny was established July 18, 1917, named in honor of General Stephen 16 Watts Kearny who led the Army of the West to San Diego in 1846. ECF No. 63-5 at 4. The 17 historical record shows that the DoN purchased Camp Kearny, “the land that ultimately 18 became MCAS Miramar,” in February 1931. Doe, 2020 WL 1890576, at *5. In 1917, the 19 War Department leased Camp Kearny, and while most of the Camp’s buildings were 20 destroyed or salvaged in the 1920s, the property continued to be used by the Marines 21 through the 1930s. Id.; DeHart Decl., Exh. B at 9, 13. Defendants have sufficiently 22 established that the federal government purchased MCAS Miramar in 1931 and therefore 23 exercises ownership over the property, including the Orion Property. 24 There are a host of cases throughout the circuit, where the court has found that 25 MCAS Miramar is a federal enclave. See Naigan v. Nana Services, LLC, No. 12cv2648- 26 LAB (NLS), 2013 WL 5278641, at *1 (S.D. Cal. Sept. 18, 2013) (“MCAS Miramar was 27 established as a federal enclave no later than July 17, 1943.”); see also Jimenez v. Haxton 28 Masonry, Inc., No. 18-cv-07109-SVK, 2020 WL 3035797, at *4 (N.D. Cal. June 5, 2020) 1 (MCAS Miramar was established as a federal enclave in 1943). In each of these cases, the 2 parties stipulated to the date of establishment of MCAS Miramar as a federal enclave. 3 Based on the exhibits filed in this case, the Court finds that MCAS Miramar and the Orion 4 Property are on a federal enclave and have been a federal enclave since 1931. 5 “Federal courts have federal question jurisdiction over tort claims that arise on 6 ‘federal enclaves.’” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 7 2006). “In determining whether a claim arises on a federal enclave, courts have simply 8 looked to see where all the ‘pertinent events’ took place.” Rosseter v. Industrial Light & 9 Magic, No. C 08-04545 WHA, 2009 WL 210452, at *2 (N.D. Cal. Jan. 27, 2009) (citing 10 Stiefel v. Bechtel Corp., 497 F. Supp. 2d 1138, 1148 (S.D. Cal. 2007)). Here, all of the 11 pertinent alleged events took place on the Orion Property and therefore, the Court finds 12 that it properly exercises federal question jurisdiction over Plaintiffs’ claims. 13 V. FEDERAL OFFICER 14 Defendants also argue that this Court has subject matter jurisdiction over this matter 15 pursuant to 28 U.S.C. § 1442, because SDFH and LMPM were, at all relevant times, acting 16 under a federal officer, and because SDFH is a federal agency. Since the Court has 17 determined that it may properly exercise jurisdiction, as discussed above, the Court 18 declines to conduct an analysis under these additional theories of subject matter 19 jurisdiction. 20 VI. CONCLUSION 21 For the reasons stated above, the Court finds that the Orion Property located on 22 MCAS Miramar is under a federal enclave and the Court has federal subject matter 23 jurisdiction over this matter. Plaintiffs’ motion to remand this matter to state court is 24 DENIED. 25 / / / 26 / / / 27 / / / 28 / / / I IT IS SO ORDERED. 2 || Dated: March 21, 2025 3 Str J. 4 Honorable James E. Simmons Jr. 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28