Abigail Aguilera-Cubitt v. AG Seal Beach, LLC

Case 8:22-cv-00249-JVS-JDE Document 26 Filed 04/20/22 Page 1 of 15 Page ID #:1208

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

Present: The James V. Selna, U.S. District Court Judge

Honorable

Lisa Bredahl Not Present

Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: [IN CHAMBERS] Order Regarding Motion for Remand and Motion

to Dismiss

Plaintiff Abigail Aguilera-Cubitt (“Aguilera-Cubitt”), individually and as

Successor-In-Interest on behalf of Reyes Aguilera, filed a motion to remand this case to

the Orange County Superior Court. Mot., Dkt. 15. Defendant AG Seal Beach, LLC

(“Seal Beach”) opposed the motion. Opp’n, Dkt. 20. Aguilera-Cubitt responded. Reply,

Dkt. 23.

Seal Beach also filed a motion to dismiss the complaint. Dkt. 10. Aguilera-Cubitt

opposed the motion. Dkt. 19. Seal Beach responded. Dkt. 24.

For the following reasons, the Court GRANTS the motion for remand and

REMANDS the case to Orange County Superior Court. The Court DENIES the motion

to dismiss, and its associated requests for judicial notice, as moot.

I. BACKGROUND

A. Factual and Procedural Background

This case concerns whether Seal Beach provided sufficient care to Aguilera-

Cubitt’s elderly mother. Seal Beach owns and operates skilled nursing facilities in

California. Compl., Blozan Decl., Ex. 1, Dkt. 15-1, ¶ 30. Reyes Aguilera (“Aguilera”)

was a resident of the Seal Beach Health and Rehabilitation nursing home from 2018 until

her death on June 30, 2020. Id. ¶ 6. Aguilera-Cubitt alleges that Seal Beach neglected to

provide proper care to Aguilera and other residents, in violation of California law. See

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

generally id. ¶¶ 30–62.

On June 29, 2021, Aguilera-Cubitt filed a complaint in Orange County Superior

Court. See id. The complaint brought seven state law causes of action for (1) Elder

Abuse under California Welfare & Institutions Code §15610 et seq., (2) Violation of

Patient Bill of Rights and Health and Safety Codes, (3) Wrongful Death, (4) Intentional

Misrepresentation, (5) Negligent Misrepresentation, (6) Negligence, and (7) Unfair

Business Practices. See id. ¶¶ 63–139. On February 16, 2022, Seal Beach filed a notice

of removal. See Dkt. 1.

B. Requests for Judicial Notice

As a preliminary matter, both parties request that the Court take judicial notice of a

voluminous collection of documents in connection with the motion to remand. See Dkt.

16; Dkt. 22. Several of the attached exhibits consist of decisions from other courts, both

inside and outside of this district. See Dkt. 16, Exs. 1–3; Dkt. 22, Exs. 1, 32. The Court

does not need to take judicial notice of court opinions, or filings on this Court’s docket,

and thus denies the request with respect to those exhibits. However, the Court will

consider those documents when ruling on these motions.

The remaining documents are all government publications. See Dkt. 22, Exs.

2–31, 33–34. T he Court may take judicial notice of matters of public record if the facts

are not “subject to reasonable dispute.” Lee v. City of Los Angeles, 250 F.3d 668, 688-

89 (9th Cir. 2001); see Fed. R. Evid. 201(b). A court may “take judicial notice of

undisputed and publicly available information displayed on government websites.” King

v. Cty. of Los Angeles, 885 F.3d 548, 555 (9th Cir. 2018); see Daniels-Hall v. Nat’l

Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (holding that it is “appropriate to take

judicial notice” of information “made publicly available by government entities” where

neither party disputes the authenticity or the accuracy of the information). As neither

party questions the authenticity or accuracy of the exhibits, the Court finds that it is

proper to take judicial notice of them.

Accordingly, the Court GRANTS Seal Beach’s request for judicial notice with

respect to Exhibits 2–31, 33, and 34. See Dkt. 22. The Court declines to take judicial

notice of the remainder of the documents.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

II. LEGAL STANDARD

Under 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court

to federal court so long as original jurisdiction would lie in the court to which the action

is removed. City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997).

According to the Ninth Circuit, courts should “strictly construe the removal statute

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

Doubts as to removability should be resolved in favor of remanding the case to the state

court. Id. This “‘strong presumption’ against removal jurisdiction means that the

defendant always has the burden of establishing that removal is proper.” Id. (quoting

Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990)).

“A motion to remand the case on the basis of any defect other than lack of subject

matter jurisdiction must be made within 30 days after the filing of the notice of removal.”

28 U.S.C. § 1447(c); see also Maniar v. FDIC, 979 F.2d 782, 786 (9th Cir. 1992). A

district court lacks power to order a remand in violation of Section 1447(c). Id.

III. DISCUSSION

Aguilera-Cubitt seeks to remand this action to Orange County Superior Court for a

lack of subject matter jurisdiction. Mot. at 9. “As a general rule, absent diversity

jurisdiction, a case will not be removeable if the complaint does not affirmatively allege a

federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). “The 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.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987). “[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.” Id. at 393.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

Aguilera-Cubitt’s complaint only brings state law claims and does not support

diversity jurisdiction. Thus, the Court turns to the question of whether federal subject

matter jurisdiction exists over Aguilera-Cubitt’s complaint.

A. Preemption of Aguilera-Cubitt’s Claims by the PREP Act

Seal Beach argues that removal of this case to federal court was proper because

Aguilera-Cubitt’s claims are completely preempted by the Public Readiness and

Emergency Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-6e. The complete

pre-emption doctrine presents an “independent corollary” to the well-pleaded complaint

rule. Caterpillar, 482 U.S. at 393. “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) (quoting

Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 945 (9th Cir.

2009)). “‘Complete preemption’ is a doctrine applicable to removal jurisdiction only; it

is not a doctrine of defensive preemption.” Retail Prop. Tr. v. United Bhd. of Carpenters

& Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014).

There are only a “handful of ‘extraordinary’ situations” where Congress

“manifested an intent to convert state-law claims into federal-question claims.” Wayne v.

DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002). “The Supreme Court has

identified only three statutes that meet this criteria: (1) § 301 of the Labor Management

Relations Act (the LMRA), 29 U.S.C. § 185, . . . (2) § 502(a) of the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a), . . . and (3) §§ 85 and 86 of

the National Bank Act, 12 U.S.C. §§ 85, 86.” City of Oakland v. BP PLC, 969 F.3d 895,

905–06 (9th Cir. 2020). Based on those cases, the Ninth Circuit has held that “complete

preemption for purposes of federal jurisdiction under § 1331 exists when Congress: (1)

intended to displace a state-law cause of action, and (2) provided a substitute cause of

action.” Id. at 905 (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir.

2018).

i. The PREP Act

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

Congress initially passed the Public Readiness and Emergency Preparedness

(“PREP”) Act in 2005. See Pub. L. No. 109-148, div. C, § 2, 119 Stat. 2818 (Dec. 30,

2005), codified at 42 U.S.C. §§ 247d-6d, 247d-6e. The PREP Act may be invoked by the

Secretary of the Department of Health and Human Services (the “HHS Secretary”) upon

making a “determination that a disease or other health condition or other threat to health

constitutes a public health emergency, or that there is a credible risk that the disease,

condition, or threat may in the future constitute such an emergency.” 42 U.S.C. § 247d-

6d(b)(1). After a determination is made, the HHS Secretary may identify covered

countermeasures via declaration in the Federal Register. Id. § 247d-6d(b)(1). The Act

defines “covered countermeasure” to include “a qualified pandemic or epidemic

product,” a security countermeasure, a drug, biological product or device, or an approved

respiratory protective device that the HHS Secretary determines to be a priority for use

during the declared public health emergency. Id. § 247d-6d(i)(1). It defines “covered

person” to include persons or entities (and their officials, agents, and employees) that are

manufacturers, distributors, program planners, or qualified persons who prescribed,

administered, or dispensed a countermeasure. Id. § 247d-6d(i)(2)(B). The PREP Act

provides that “a covered person shall be immune from suit and liability under Federal and

State law with respect to all claims for loss caused by, arising out of, relating to, or

resulting from the administration to or the use by an individual of a covered

countermeasure . . . .” Id. § 247d-6d(a)(1). It created the Covered Countermeasure

Process Fund to compensate “eligible individuals for covered injuries directly caused by

the administration or use of a covered countermeasure pursuant to such declaration . . . .”

Id. § 247d-6e(a).

Section 247d-6d(d)(1) provides that “the sole exception to the immunity from suit

and liability of covered persons . . . shall be for an exclusive Federal cause of action

against a covered person for death or serious physical injury proximately caused by

willful misconduct . . . by such covered person.” The term “willful misconduct” is

defined as an act or omission that is taken “(i) intentionally to achieve a wrongful

purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a

known or obvious risk that is so great as to make it highly probable that the harm will

outweigh the benefit.” Id. § 247d-6d(c)(1)(A). There are several procedural restrictions

on an action brought under § 247d-6d(d)(1), including that it “shall be filed and

maintained only in the United States District Court for the District of Columbia.” Id. §

247d-6d(e)(1). Before bringing such an action, an individual must also first exhaust the

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

administrative remedies available through the Covered Countermeasure Process Fund, as

described in section 247d-6e(a). Id. § 247d-6e(d)(1).

On March 10, 2020, the HHS Secretary issued the “Declaration Under the Public

Readiness and Emergency Preparedness Act for Medical Countermeasures Against

COVID-19,” (the “Declaration”), which declared the COVID-19 pandemic a public

health emergency under the PREP Act. 85 Fed. Reg. 15,198 (Mar. 17, 2020). The HHS

Secretary also issued a series of amendments to the declaration defining covered persons

and covered countermeasures. See Seventh Amendment to Declaration Under the Public

Readiness and Emergency Preparedness Act for Medical Countermeasures Against

COVID-19, 86 Fed. Reg. 14,462, 14,463 (Mar. 16, 2021) (summarizing the amended

declarations). Of note, the Fourth Amendment to the Declaration expressed the opinion of

the HHS Secretary that “there are substantial federal legal and policy issues” and interests

in having a uniform interpretation of the PREP Act’s application to the response to the

COVID-19 pandemic. See Fourth Amendment to the Declaration Under the Public

Readiness and Emergency Preparedness Act for Medical Countermeasures Against

COVID-19 and Republication of the Declaration, 85 Fed. Reg. 79,190, 19,194 (Dec. 9,

2020). On January 8, 2021, the Office of the General Counsel for the Department of

Health and Human Services issued an Advisory Opinion that further elaborated on the

agency’s opinion of how the PREP Act impacted federal court jurisdiction. Dep’t Health

& Hum. Servs., General Counsel Advisory Opinion 21-01 (Jan. 8, 2021), Dkt. 5-9.

ii. Whether the PREP Act is a Complete Preemption Statute

During the COVID-19 pandemic, numerous courts have considered whether the

PREP Act completely preempts state law claims. The vast majority of district courts,

including many within this district, concluded that it did not. See, e.g., Lyons v.

Cucumber Holdings, LLC, 520 F. Supp. 3d 1277, 1286–87 (C.D. Cal. 2021); Estate of

McCalebb v. AG Lynwood, LLC, No. 2:20-cv-09746-SB-PVC, 2021 WL 911951 (C.D.

Cal. Mar. 1, 2021); Aguirre v. Norwalk Skilled Nursing & Wellness Ctr., LLC, No. 2:22-

cv-00126-MCS-JPR, 2022 WL 633566 (C.D. Cal. Jan. 32, 2022) (collecting cases).

Other courts, including this Court, found that it did completely preempt state law claims.

See Garcia v. Welltower OpCo Grp. LLC, 522 F. Supp. 3d 734, 741–43 (C.D. Cal. 2021);

see also Rachal v. Natchitoches Nursing & Rehabilitation Center LLC, No. 1:21-CV-

00334, 2021 WL 5449053, at *4 n.3 (W.D. La. Apr. 30, 2021) (finding that the PREP Act

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Title Aguilera-Cubitt v. AG Seal Beach, LLC

satisfies the Fifth Circuit test for complete preemption and granting jurisdictional

discovery); Rachal v. Natchitoches Nursing & Rehabilitation Center LLC, No. 1:21-CV-

00334, 2021 WL 5449064 (W.D. La. Nov. 18, 2021) (remanding the case after

jurisdictional discovery because the defendants had failed to adequately demonstrate that

plaintiff’s claims were related to a covered countermeasure).

In Garcia, this Court reached the conclusion that the PREP Act completely

preempted state law in part by relying on the January 8, 2021 Advisory Opinion (the

“Advisory Opinion”) issued by the HHS Office of General Counsel. 522 F. Supp. 3d at

742–43; Dep’t Health & Hum. Servs., General Counsel Advisory Opinion 21-01 (Jan. 8,

2021), Dkt. 5-9, at 2–3. The Advisory Opinion concluded that the PREP Act is a

complete preemption statute, and “extends immunity to anything ‘relating to’ the

administration of a covered countermeasure.” Dep’t Health & Hum. Servs., General

Counsel Advisory Opinion 21-01 (Jan. 8, 2021), Dkt. 5-9, at 2–4. While the Court did

not grant Chevron deference to the Advisory Opinion, it took note of its reasoning and

agreed with its conclusion that the PREP Act completely preempts state law. Garcia, 522

F. Supp. 3d at 742–43. Seal Beach argues that the Court should follow the same

reasoning it adopted in Garcia and again defer to the conclusions of the Advisory

Opinion. Opp’n at 9–10. However, several courts, including the Ninth Circuit, have

reached the opposite conclusion on this issue since this Court last considered the

question. See, e.g., Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 688 (9th Cir.

2022); Estate of McCalebb, 2021 WL 911951, at *4–5 n.5 (considering Advisory

Opinion and determining that the PREP Act does not completely preempt state law

claims); Smith v. Colonial Care Ctr., Inc., No. 2:21-cv-00494-RGK-PD, 2021 WL

1087284, at *6 (C.D. Cal. Mar. 19, 2021) (same); Dupervil v. Alliance Health

Operations, 516 F. Supp. 3d 238, 252–54 (E.D.N.Y. 2021) (same).

In Saldana, the Ninth Circuit recently considered an appeal of a district court order

remanding a similar case to state court for a lack of subject matter jurisdiction. 27 F.4th

at 683. Similar to Seal Beach, the defendant in Saldana argued that the Advisory Opinion

supported the conclusion that the PREP Act is a complete preemption statute. Id. at 687.

However, the Ninth Circuit reiterated that “an agency’s opinion on federal court

jurisdiction is not entitled to Chevron deference.” Id. at 688 (citing Dandina, Inc. v. U.S.

Dep’t of Transp., 729 F.3d 917, 920 n.1 (9th Cir. 2013)). Instead of deferring to the

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

Advisory Opinion, the court looked to whether the PREP Act satisfied the Ninth Circuit

test for complete preemption.

In Saldana, the court held that the PREP Act did not satisfy either prong of the City

of Oakland test. First, it determined that Congress “intended a federal claim only for

willful misconduct claims and not claims for negligence and recklessness.” Id. (citing 42

U.S.C. § 247d-6d(c)(1)(B)). Next, it found that the administrative compensation fund

that provides the only source of redress for non-willful misconduct claims brought under

the PREP ACT does not constitute a substitute cause of action. Id. Thus, Saldana

concluded that “under this court’s two-part test, the PREP Act is not a complete

preemption statute.” Id. In addition to finding that rationale persuasive, the Court is

bound by the Saldana court’s holding.

Seal Beach not only disagrees with the analysis, but also contends that the decision

in Saldana is not binding on this Court because a mandate has not yet issued and there is

a pending petition for rehearing en banc. See Opp’n at 2–3 n.2. A published circuit court

panel decision is “subject to modification, withdrawal, or reversal” until a mandate has

issued. In re Zermeno-Gomez, 868 F.3d 1048, 1053 (9th Cir. 2017). But even prior to

the issuance of a mandate, the Ninth Circuit 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.” Id. The possibility that Saldana may be reheard

en banc does not change the impact of the panel decision on this Court. See Yong v. INS,

208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (“[O]nce a federal circuit court issues a decision,

the district courts within that circuit are bound to follow it and have no authority to await

a ruling by the Supreme Court before applying the circuit court’s decision as binding

authority.”). It would “constitute clear error” for the Court to disregard a published Ninth

Circuit opinion. In re Zermeno-Gomez, 868 F.3d at 1053.

Thus, the Court concludes that the PREP Act does not support subject matter

jurisdiction because it is not a complete preemption statute.

iii. Preemption of Claims Based on Willful Misconduct

Alternatively, Seal Beach argues that even the PREP Act does not completely

preempt all of Aguilera-Cubitt’s claims, federal subject matter jurisdiction exists because

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CIVIL MINUTES - GENERAL

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Title Aguilera-Cubitt v. AG Seal Beach, LLC

it preempts any claims that are premised on willful misconduct. Opp’n at 15–16.

Aguilera-Cubitt brings a total of seven causes of action, including for negligence,

wrongful death, and elder abuse. None of the causes of action are brought for willful

misconduct. However, there are allegations within the complaint that Seal Beach

“intentionally and willfully” failed to provide proper care to Aguilera. See Compl. ¶ 56.

Seal Beach contends that subject matter jurisdiction exists because these claims fall

within the PREP Act’s express preemption of willful misconduct claims. See Opp’n at

8–9.

The defendant in Saldana raised the same argument, which the Ninth Circuit

rejected. 27 F.4th at 688. As Saldana emphasized, “finding 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 . . . other causes of action for

elder abuse, custodial negligence, and wrongful death.” Id. (quoting Retail Prop. Tr., 768

F.3d at 947). Thus, Saldana held that the remand for lack of subject matter jurisdiction

based upon complete preemption was proper. Id. Seal Beach’s argument that this Court

should reach a different conclusion fails for multiple reasons.

First, Seal Beach appears to conflate the different preemption doctrines. Complete

preemption is distinct from the different types of defensive preemption. See Retail

Property Tr., 768 F.3d at 948 (“[T]he complete-preemption doctrine must be

distinguished from ordinary preemption.”) (quoting Sullivan v. Am. Airlines, Inc., 424

F.3d 267, 272 (2d Cir. 2005)). “‘Complete preemption’ is a doctrine applicable to

removal jurisdiction only; it is not a doctrine of defensive preemption.” Retail Property

Tr., 768 F.3d at 948. As discussed above, under binding Ninth Circuit precedent, the

PREP Act is not one of the limited number of statutes where Congress intended to

completely preempt state law claims. The PREP Act’s preemption of state law willful

misconduct claims does not change that analysis. See Saldana, 27 F.4th at 688.

While the PREP Act expressly preempts state law willful misconduct claims, see

42 U.S.C. § 247d-6d(d)(1), that does not make it a “complete preemption” statute.

Express preemption is a form of defensive preemption, and thus does not have the same

jurisdictional impact as a complete preemption statute. See Retail Property Tr., 768 F.3d

at 948. Defensive preemption cannot create the basis for removal. See Caterpillar, 482

U.S. at 393. The case law cited by Seal Beach to support its argument is inapposite. In

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Smallwood v. Allied Van Lines, Inc., the Ninth Circuit noted that the “district court had

subject matter jurisdiction if at least one of [plaintiff’s] claims were completely

preempted by the Carmack Amendment.” 660 F.3d 1115, 1120 (9th Cir. 2011). Prior to

Smallwood, the Ninth Circuit had previously held that the Carmack Amendment, 49

U.S.C. § 14706, completely preempts interstate-shipping contract claims alleging loss or

damage to property. Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 687–89 (9th Cir.

2007). The opposite is true here. The Ninth Circuit has explicitly held that the PREP is

not a complete preemption statute. See Saldana, 27 F.4th at 688. Seal Beach may raise

its express preemption defense in state court, but it is not sufficient to create federal

jurisdiction over the complaint.

Second, Seal Beach’s willful misconduct argument relies on out-of-circuit

authority that is contradictory to Saldana. See Opp’n at 7–10. However, even if that

authority applied within the Ninth Circuit, Seal Beach’s arguments fail. In Estate of

Maglioli v. Alliance Holdings, LLC, the Third Circuit concluded that “[t]he PREP Act’s

language easily satisfied the standard for the complete preemption of particular causes of

action” because Congress created an exclusive federal cause of action for willful

misconduct. 16 F.4th 393, 409–10 (3d Cir. 2021). However, Maglioli acknowledged

that “complete preemption does not apply when federal law creates an entirely different

cause of action from the state claims in the complaint.” Id. at 411 (emphasis in original).

Thus, the court looked beyond the claims to the allegations and found that the claims

could not have been brought under the PREP Act because there were no allegations of

acting “intentionally to achieve a wrongful purpose” or “knowingly without legal or

factual justification.” Id. Thus, it held that remand of the plaintiffs’ “garden-variety

state-law claims” was proper. Id. at 413.

As discussed above, the Court is bound by Saldana’s contrary holding that the

PREP Act is not a complete preemption statute. However, even under the Third

Circuit analysis, Aguilera-Cubitt’s allegations do not fall within the scope of claims

preempted by the PREP Act. Aguilera-Cubitt brought seven state claims, none of which

were for willful misconduct. The state law causes of action all have elements that are

distinct from the elements of a willful misconduct claim under the PREP Act. Aguilera-

Cubitt’s allegations also could not support a willful misconduct claim under the PREP

Act. None of the alleged actions that Seal Beach “intentionally and willfully” failed to

perform were related to COVID-19, or any “covered countermeasure.” See Compl. ¶ 56.

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Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

The brief references to COVID-19 are not sufficient to bring Aguilera-Cubitt’s claims

within the scope of the PREP Act. See Smith, 2021 WL 1087284, at *4 (finding that

allegations do not fall within the PREP Act definition of a covered countermeasure

because allegations only mention them by way of background).

Accordingly, the Court finds that the PREP Act’s express preemption of state law

willful misconduct claims does not provide a basis for federal jurisdiction over

Aguilera-Cubitt’s complaint.

C. Embedded Question of Federal Law

Alternatively, Seal Beach contends that Aguilera-Cubitt’s allegations contain a

substantial, embedded question of federal law. Opp’n at 18–19. The Supreme Court has

recognized that “in certain cases federal-question jurisdiction will lie over state-law

claims that implicate significant federal issues.” Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). The doctrine applies “if a federal issue

is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of

resolution in federal court without disrupting the federal-state balance approved by

Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “Only a few cases have fallen

into this ‘slim category.’” City of Oakland, 969 F.3d at 904. “[A] state-law claim will

present a justiciable federal question only if it satisfies both the well-pleaded complaint

rule and passes the ‘implicate[s] significant federal issues’ test.” Cal. Shock Trauma Air

Rescue v. State Comp. Ins. Fund, 636 F.3d 538, 542 (9th Cir. 2011) (quoting Grable, 545

U.S. at 312) (emphasis in original).

All of Aguilera-Cubitt’s claims are brought under California state law. Seal Beach

does not convincingly explain how the PREP Act provides an essential element to any of

the claims. It essentially repeats its preemption argument, and contends that the

protection provided by the PREP Act should prevent these claims. But, “a federal

defense is not a sufficient basis to find embedded federal question jurisdiction.” Saldana,

27 F.4th at 688 (citing Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d

1083, 1090 (9th Cir. 2009)).

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

Just because Aguilera-Cubitt was a resident at a facility where covered persons

employed covered countermeasures, interpretation of the PREP Act is not automatically a

substantial part of Aguilera-Cubitt’s complaint. Seal Beach may invoke the PREP Act as

part of its defense in state court. If it does in fact preempt some of the claims raised by

Aguilera-Cubitt, those claims will fail. But that has no bearing on whether this Court has

subject matter jurisdiction over this complaint.

Accordingly, the Court finds that there is no embedded federal question to support

jurisdiction over the complaint.

D. Federal Officer Removal Statute

Additionally, Seal Beach argues that jurisdiction exists under the federal officer

removal statute. Opp’n at 19–23. Section 1442(a) authorizes removal of a state action

filed against “[t]he United States or any agency thereof or any officer (or any person

acting under that officer) of the United States or of any agency thereof, in an official or

individual capacity, for or relating to any act under color of such office . . . .” 28 U.S.C.

§ 1442(a).

Federal officer removal is available if “(a) [the defendant] is a ‘person’ within the

meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a

federal officer’s directions, and plaintiff’s claims; and (c) it can assert a ‘colorable federal

defense.’” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018) (quoting

Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006)). To establish a

causal nexus, Seal Beach must show that it “was ‘acting under’ a federal officer in

performing some ‘act under color of federal office,’” and that such action is “causally

connected” with Aguilera-Cubitt’s claims. Cty. of San Mateo v. Chevron Corp., 960 F.3d

586, 598 (9th Cir. 2020).

Seal Beach argues that it was “acting under” the direction of a federal officer

because the Department of Health and Human Services identified healthcare providers as

critical partners in its efforts to mitigate the spread and impact of the COVID-19

pandemic. Opp’n at 20–22. Seal Beach has identified numerous regulations, directives,

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

and guidance that it has complied with throughout the pandemic. “But ‘simply

complying’ with a law or regulation is not enough to ‘bring a private person within the

scope of the statute.’” Saldana, 27 F.4th at 684 (quoting Watson v. Philip Morris Cos.,

Inc., 551 U.S. 142, 152 (2007)).

“The upshot is that a highly regulated firm cannot find a statutory basis for

removal in the fact of federal regulation alone. A private firm’s compliance (or

noncompliance) with federal laws, rules, and regulations does not by itself fall

within the scope of the statutory phrase “acting under” a federal “official.” And

that is so even if the regulation is highly detailed and even if the private firm’s

activities are highly supervised and monitored. A contrary determination would

expand the scope of the statute considerably, potentially bringing within its scope

state-court actions filed against private firms in many highly regulated industries.”

Watson, 551 U.S. at 153. Seal Beach’s reliance on federal government declarations that

healthcare providers are critical infrastructure is similarly unavailing. “It 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.”

Saldana, 27 F.4th at 685 (quoting Buljic v. Tyson Foods, Inc., 22 F.4th 730, 740 (8th Cir.

2021)).

Many courts have considered, and rejected, this same argument. See, e.g., Saldana,

27 F.4th at 684–86 (finding that defendant was not “acting under” a federal officer or

agency as contemplated by the federal officer removal statute); Lyons, 520 F. Supp. 3d at

1283–84 (same); Estate of McCalebb, 2021 WL 911951, at *6–7 (same); Smith v.

Colonial Care, 2021 WL 1087284, at *7–8 (same). The Court agrees with the analysis of

those prior courts. It rejects the argument again here, and thus does not need to consider

whether the other elements of the federal officer removal statute are met.

Accordingly, the Court concludes that Seal Beach has not demonstrated that

removal was proper under the federal officer removal statute.

E. Request for Attorney’s Fees

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

Finally, Aguilera-Cubitt seeks an award of costs and fees incurred as a result of

removal. Mot. at 28–29. Because remand is proper here, the Court “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. “Absent unusual circumstances, courts may

award attorney’s fees under § 1447(c) only where the removing party lacked an

objectively reasonable basis for seeking removal. Conversely, when an objectively

reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546

U.S. 132, 141 (2005).

The Court does not find that Seal Beach lacked an objectively reasonable basis for

seeking removal. While the Court was not persuaded by its arguments that subject matter

jurisdiction existed, this is a developing area of law. Moreover, there was no binding

Ninth Circuit precedent until the Saldana opinion was issued on February 22, 2022, six

days after Seal Beach removed this action. See Ramirez v. Windsor Care Ctr. Nat’l City,

Inc., No. 21-cv-1051-AJB-WVG, 2022 WL 392899, (S.D. Cal. Feb. 9, 2022)

(“Considering there is no binding precedent on the issues raised by Defendant and at least

one district court has agreed with its view concerning the propriety of removal in this

type of case, the Court does not find that Defendant lacked an objectively reasonable

basis for seeking removal.”).

Aguilera-Cubitt argues that she should be entitled to attorneys’ fees because the

claims at issue here are not related to COVID-19 or the covered countermeasures under

the PREP Act. Reply at 20–21. From the face of the complaint, the allegations appear to

be tangentially related to COVID-19 and the covered countermeasures under the PREP

Act. However, Aguilera did test positive for COVID-19 prior to her death, so the Court

cannot say that removal was utterly without justification. While the Court agrees that

there is no legal basis for removal, that does not necessarily render removal objectively

unreasonable. See Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir.

2008) (“[R]emoval is not objectively unreasonable solely because the removing party’s

arguments lack merit, or else attorney’s fees would always be awarded whenever remand

is granted.”).

Accordingly, the Court declines to award costs and fees to Aguilera-Cubitt.

IV. CONCLUSION

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 22-249 JVS (JDEx) Date April 20, 2022

Title Aguilera-Cubitt v. AG Seal Beach, LLC

For the foregoing reasons, the Court GRANTS the motion for remand and

REMANDS the case to Orange County Superior Court. The Court DENIES the motion

to dismiss, and its associated requests for judicial notice, as moot. The Court finds that

oral argument would not be helpful in this matter. Fed R. Civ. P. 78; L.R. 7-15.

IT IS SO ORDERED.

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Initials of Preparer lmb

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