Kovacs v. MEK Norwood Pines, LLC

Opinion

----oo0oo---- ANDRE KOVACS, individually and No. 2:22-cv-00120 WBS AC as heir and successor in interest to LIBERTY KOVACS, deceased, ORDER RE: MOTIONS TO REMAND Plaintiff, AND TO DISMISS COMPLAINT v. MEK NORWOOD PINES, LLC, dba and DOES 51-60, Defendants.

----oo0oo---- Plaintiff brought this action in Sacramento Superior Court against defendant MEK Norwood Pines, LLC (“Norwood”). (Compl. (Docket No. 1-1).) Defendants removed the action to this court on January 19, 2022. (Notice of Removal (“Notice”) (Docket No. 1).) Before the court are defendants’ motion to dismiss plaintiff’s claims and plaintiff’s motion to remand to state court. (Docket Nos. 4, 7.)1 I. Factual and Procedural Background Norwood operates Norwood Pines Alzheimer’s Center, a skilled nursing facility located in Sacramento, California. (Compl. at ¶¶ 1, 5.) Liberty Kovacs, plaintiff’s mother, was a 92-year-old woman with Alzheimer’s who died from COVID-19 while at the facility on December 25, 2020. (See id. at ¶¶ 9, 19-20, 25.) Plaintiff alleges Norwood was neglectful and failed to implement reasonable infection control measures to prevent the spread of COVID-19 at Norwood Pines and resulting deaths. (See id. at ¶¶ 27-33.) He asserts claims for (1) violation of California’s Elder Abuse and Dependent Adult Civil Protection Act, Welf. & Inst. Code § 15610.27; (2) violation of resident rights under Health & Safety Code § 1430(b); (3) negligence; and (4) wrongful death. (Compl. at ¶¶ 37-78.)2 II. Motion to Remand “Under 28 U.S.C. § 1441, a defendant may remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). On a motion to remand, defendants bear the burden of

1 Because counsel on both sides announced, two court days before the hearing, that due to conflicts they could not attend the April 18, 2022 hearing on this motion –- despite plaintiff’s counsel having previously selected that date for argument -- the court takes the matter under submission without the need for oral argument.

2 Plaintiff’s complaint also seeks “enhanced remedies” under the negligence claim for alleged “willful misconduct” by defendants. (Id. at ¶¶ 55-66.) showing that federal jurisdiction is appropriate. Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (citation omitted). Any questions regarding the propriety of removal are resolved in favor of the moving party. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). If removal was improper, “the district court lack[s] subject matter jurisdiction, and the action should [be] remanded to the state court.” Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir. 1998) (citing 28 U.S.C. § 1447(c)). Defendants do not contend that diversity jurisdiction exists in this case. (See Notice); 28 U.S.C. § 1332(a). Rather, they removed on the grounds that subject matter jurisdiction exists based on (1) the Federal Officer Removal Statute, 28 U.S.C. § 1442(a); (2) the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e; and (3) the existence of an embedded federal question. (Notice.) In nearly identical cases, the Ninth Circuit and district courts within it have repeatedly rejected all three of defendants’ asserted bases for subject matter jurisdiction. Most notable among these is the Ninth Circuit’s decision in Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022).3 See 3 Defendants appear to acknowledge that Saldana would foreclose most or all of their asserted bases for federal jurisdiction. (See Opp. at 8-10 (Docket No. 10).) Even so, they ask the court to disregard Saldana on the basis that it “is not yet final as no mandate has issued and defendants in that case have petitioned for rehearing and rehearing en banc.” (See id. at n.1.) Defendants provide no authority for the proposition that a published Ninth Circuit decision is not binding on this court until a mandate has issued. (Id.) However, that proposition has been squarely rejected by the Ninth Circuit, also Martin v. Filart, 20-56067, 2022 WL 576012 (9th Cir. Feb. 25, 2022). A. Federal Officer Removal Statute Like here, in Saldana the defendant nursing home argued it qualified for federal officer removal under § 1442(a), pointing to memoranda from federal agencies addressing nursing homes’ response to the COVID-19 pandemic. Saldana, 27 F.4th at 684-85; (see Opp. at 23-24 (Docket No. 10)). Like here, it argued that these agencies’ directives demonstrated sufficient federal control to bring it within the statute’s ambit, and further argued that “its designation as part of the national critical infrastructure necessarily means that it acted on behalf of a federal official or that it carried out a government duty.” Saldana, 27 F.4th at 684-85; (see Opp. at 23-25). The Ninth Circuit held, however, that “[w]ithout more than government regulations and recommendations,” the nursing home “failed to establish that it was ‘acting under’ a federal official” or to “identif[y] a duty of the federal government that it performed.” Saldana, 27 F.4th at 685 (quoting Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 153 (2007)). Reasoning that “[i]t cannot be that the federal government’s mere designation of an industry as important -- or even critical -- is sufficient to federalize an entity’s operations and confer federal jurisdiction,” the court further held that the home’s

which has “unequivocally stated that a published decision constitutes binding authority and must be followed unless and until it is overruled by a body competent to do so.” In re Zermeno-Gomez, 868 F.3d 1048, 1052-53 (9th Cir. 2017) (addressing argument “that a [Ninth Circuit] decision is not binding on lower courts until the mandate has issued”). “status as a critical infrastructure entity does not establish that it acted under a federal officer or agency, or that it carried out a government duty.” Id. (citations omitted). The court concluded that the home had demonstrated only “that it operated as a private entity subject to government regulations, and that during the COVID-19 pandemic it received additional regulations and recommendations from federal agencies.” Id. at 686. It consequently held that § 1442 did not allow for removal, as the home “was not ‘acting under’ a federal officer or agency as contemplated by the federal officer removal statute.” Id. Defendants’ arguments for federal officer removal are substantively identical to those the Ninth Circuit addressed and rejected in Saldana. See also, e.g., Thomas v. Pomona Healthcare & Wellness Ctr., 2:22-cv-179 SVW PLA, 2022 WL 845349, at *4-5 (C.D. Cal. Mar. 22, 2022) (rejecting similar invocation of federal officer removal by skilled nursing facility in COVID-19 wrongful death suit, relying in part on Saldana); Herring v. Californian-Magnolia Convalescent Hosp., Inc., 22-cv-44 JGB (KKx), 2022 WL 743515, at *4 (C.D. Cal. Mar. 11, 2022) (same). § 1442 therefore cannot serve as a basis for removal here. B. Complete Preemption of PREP Act Defendants also argue federal jurisdiction exists because plaintiff’s claims are completely preempted by the PREP Act. (Opp. at 11-22.) “Complete preemption is ‘really a jurisdictional rather than a preemption doctrine, as it confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim.’” Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013) (citation omitted). Complete preemption is an exception to the well-pleaded complaint rule wherein “the pre-emptive force of the statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim.’” City of Oakland v. BP PLC, 969 F.3d 895, 905 (9th Cir. 2020) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)). In Saldana, the Ninth Circuit specifically held that “the PREP Act is not a complete preemption statute.” Saldana, 27 F.4th at 688. Accordingly, federal jurisdiction cannot exist here based on complete preemption. Defendants also argue that, even if the PREP Act is not a complete preemption statute, it preempts claims alleging willful misconduct by creating an exclusive federal cause of action for such claims. (Opp. at 13.) However, Saldana addressed this argument as well: “[F]inding that one claim may be preempted is different than finding that the ‘federal statutory scheme is so comprehensive that it entirely supplants state law causes of action,’ such as the [plaintiffs’] other causes of action for elder abuse, custodial negligence, and wrongful death.” Saldana, 27 F.4th at 688 (citations omitted); see also Caterpillar, 482 U.S. at 392 (“[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.”). Accordingly, Saldana held that “the district court’s remand order for lack of federal subject matter jurisdiction based upon complete preemption was proper,” notwithstanding the PREP Act’s provision of an exclusive cause of action for willful misconduct. Saldana, 27 F.4th at 688. Even though plaintiff’s complaint includes allegations of willful misconduct, preemption cannot serve as a basis for federal jurisdiction here. C. Embedded Federal Question Finally, defendants argue that plaintiff’s claims present an embedded question of federal law on the basis that they implicate the PREP Act. (Opp. at 22-23.) Under the embedded federal question doctrine, “the Supreme Court has recognized a ‘special and small category’ of state-law claims that arise under federal law for purposes of § 1331 ‘because federal law is a necessary element of the . . . claim for relief.’” City of Oakland, 959 F.3d at 904 (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). Saldana addressed and rejected an argument identical to the one defendants pursue here. Noting that “[t]he well-pleaded complaint rule applies when determining whether the embedded federal question doctrine applies,” it observed that “[t]he claims in the complaint [we]re raised under California law and d[id] not raise questions of federal law on the face of the complaint.” Saldana, 27 F.4th at 688. Although the nursing home “s[ought] to raise a federal defense under the PREP Act,” the court explained that “a federal defense is not a sufficient basis to find embedded federal question jurisdiction.” Id. Because the nursing home “d[id] not identify how a right or immunity created by the PREP Act must be an essential element of the willful misconduct claim as stated in the complaint,” the complaint presented no embedded federal question. Id. at 689. Here, defendants do not identify how the PREP Act implicates an essential element of any claim presented in the complaint. Rather, they point to an advisory opinion issued by the Secretary of the United States Department of Health and Human Services asserting that an embedded federal question exists. (Opp. at 22.) As Saldana explained, however, “an agency’s opinion on federal court jurisdiction is not entitled to . . . deference.” Saldana, 27 F.4th at 687; see Thomas, 2022 WL 845349, at *3 (Health and Human Services statements do not impact existence of embedded federal question) (collecting cases).4 For the reasons stated in Saldana, plaintiff’s complaint does not present an embedded federal question. See also Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393, 413 (3d Cir. 2021) (holding that because “a PREP Act . . . defense is not ‘necessarily raised’ by a well-pleaded state law negligence complaint,” nursing home’s embedded federal question argument failed) (quoting Gunn v. Minton, 568 U.S. 251, 258 (2013)). Accordingly, this basis for federal jurisdiction fails as well. The court will therefore grant plaintiff’s motion to remand. D. Attorney’s Fees Plaintiff also requests that the court award attorneys’ 4 Defendants also cite the Secretary’s statement that federal policy interests require “a unified, whole-of-nation response to the COVID-19 pandemic.” (Opp. at 22.) However, the Supreme Court has made clear that an issue does not create an embedded federal question simply because it will further a uniform interpretation of a federal statute. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 815-16 (1986). fees pursuant to 28 U.S.C. § 1447(c). (Mot. at 7.) Section 1447(c) provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, a court may award costs and attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Grancare, LLC v. Thrower, 889 F.3d 543, 552 (9th Cir. 2018) (citing Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005)). The court has concluded that defendants’ arguments in support of removal are foreclosed by Saldana. Although Saldana had not been decided at the time defendants removed to this court, it had when defendants opposed plaintiff’s motion to remand. While removal itself therefore was not unreasonable, defendants’ opposition to plaintiff’s motion in the face of binding and on-point authority was. See Herring, 2022 WL 743515, at *5 (denying fees following remand of COVID-based wrongful death claim against nursing home based on lack of binding precedent at time of defendant’s removal and opposition to remand motion); Ramirez v. Windsor Care Ctr. Nat’l City, Inc., 21-cv- 1051 AJB WVG, 2022 WL 392899, at *7 (S.D. Cal. Feb. 9, 2022) (same).5 Accordingly, the court will award attorneys’ fees to 5 Defense counsel has also been counsel of record in numerous similar cases in which motions to remand were granted on nearly identical grounds, further suggesting the opposition to plaintiff’s motion was unreasonable. See Herring, 2022 WL 743515; Luna v. P & M Healthcare Holdings, Inc., 5:22-cv-300 SB SHK, 2022 WL 946993 (C.D. Cal. Feb. 25, 2022); Burton v. Silverado Escondido, LLC, 21-cv-1213 WQH RBB, 2021 WL 5087259 (S.D. Cal. Nov. 2, 2021); Hagoubyan v. KF Rinaldi, LLC, 2:21-cv- 6271 SVW E, 2021 WL 4288524 (C.D. Cal. Sept. 21, 2021); Carillo □□□ enn ene I I EI OS ND eee

plaintiff, but only those incurred, if any, as a result of defendants’ opposition to plaintiff’s motion. IT IS THEREFORE ORDERED that plaintiff’s motion to remand (Docket No. 7) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that defendants’ motion to dismiss (Docket No. 4) be, and the same hereby is, DENIED AS MOOT.7 IT IS FURTHER ORDERED that plaintiff submit, within seven days of this Order, a separate and itemized list of any attorneys’ fees incurred on or after April 4, 2022 in addressing this motion, including a detailed explanation for each item listed. . Dated: April 14, 2022 —m*eeete*w™ {1 on (Men oe ettem~ (hk. WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE vy. Sela Healthcare, Inc., 5:21-cv-150 FLA (SPx), 2021 WL 4556421 5, | fC-- Cal. Sept. 8, 2021); Cortez v. Parkwest Rehab. Ctr. LLC, 21-cv-5172 AB (ASx), 2021 WL 4033759 (C.D. Cal. Sept. 3, 2021); Lopez v. Greenfield Care Ctr. of S. Gate, LLC, 2:21-cv-2806 RGK PVC, 2021 WL 2546756 (C.D. Cal. May 19, 2021); Smith v. Colonial Care Ctr., Inc., 2:2l1-cv-494 RGK PD, 2021 WL 1087284 (C.D. Cal. Mar. 19, 2021). 6 Because consideration of the documents included in defendants’ request for judicial notice (Docket No. 11) is unnecessary in deciding the motion to remand, the request is DENIED AS MOOT. 7 This denial is without prejudice to any motion to dismiss being filed in state court upon remand. 10