Anna Sigala v. Oxnard Manor, LP

Case 2:22-cv-02003-MEMF-MAR Document 20 Filed 06/27/22 Page 1 of 13 Page ID #:312

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ANNA SIGALA, deceased, by and through her Case No.: 2:22-cv-02003-MEMF(MARx)

personal legal representative and successor in

12 interest, Anthony Sigala; Anthony Sigala,

individually, ORDER GRANTING PLAINTIFFS’

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MOTION TO REMAND [ECF NOS. 13, 15,

Plaintiffs,

14 16] AND DENYING AS MOOT

v. DEFENDANTS’ MOTION TO DISMISS

15 [ECF NOS. 12, 14, 17]

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17 OXNARD MANOR, LP, et al.,

18 Defendants.

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Before the Court are the following motions: (1) the Motion to Remand (ECF No. 13) filed by

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Plaintiff Anthony Sigala, individually, and as successor in interest of Anna Sigala; and (2) the

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Motion to Dismiss (ECF No. 12) filed by Defendants Oxnard Manor, LP, doing business as Oxnard

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Manor Healthcare Center, Bertie Krieger, Shlomo Rechnitz, Oxnard Healthcare and Wellness

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Centre, LP, and Does 1 to 100. For the reasons stated herein, the Court GRANTS the Motion to

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Remand. On May 23, 2022, the Court deemed this matter appropriate for resolution without oral

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argument and vacated the hearing set for May 26, 2022. See ECF No. 19; C.D. Cal. L.R. 7-15.

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Accordingly, the Motion to Dismiss is DENIED as MOOT.

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1 I. Factual Background1

2 Anthony Sigala’s elderly mother, Anna Sigala, was a resident of Oxnard Manor Nursing

3 Home (“Oxnard” or the “Facility”), a California licensed nursing facility. She died on January 3,

4 2021from COVID-19. (“Compl.” or “Complaint”), ECF No. 1, Ex. A ¶¶ 1, 44–45. Her death was the

5 result of Oxnard’s negligent, willful and/or reckless conduct in the care rendered to Anna Sigala

6 specifically in the context of the COVID-19 pandemic. Notice of Removal (“Notice”), ECF No. 1 ¶

7 4.

8 II. Procedural Background

9 On December 29, 2021, Anthony Sigala filed this action against Defendants Oxnard Manor,

10 LP, doing business as Oxnard Manor Healthcare Center, Bertie Krieger, Shlomo Rechnitz, Oxnard

11 Healthcare and Wellness Centre, LP, and Does 1 to 100 (collectively, the “Oxnard Manor

12 Defendants”) in Ventura County Superior Court on behalf of himself and as successor in interest to

13 Anna Sigala (collectively, the “Sigalas”) alleging the following state-law claims: (1) elder abuse and

14 neglect, CAL. WELF. & INST. CODE § 15600, et seq.; (2) violation of patient rights, CAL. HEALTH &

15 SAFETY CODE § 1430(b); (3) negligence/willful misconduct under California state law; and (4)

16 wrongful death under California state law. See Notice of Removal (“Notice”), ECF No. 1 ¶ 1;

17 Compl. ¶¶ 46–84; Remand Mot. at 7. Sigala seeks to recover general, special, punitive, and

18 exemplary damages as well as attorneys’ fees and interest, and costs of suit. Compl. ¶ 24.

19 On March 25, 2022, the Oxnard Manor Defendants removed this action to this Court

20 pursuant to 28 U.S.C. § 1442. See generally Notice. In their Notice of Removal, the Oxnard Manor

21 Defendants assert that the Court has jurisdiction over this action under 28 U.S.C. § 1331 on three

22 grounds: federal officer jurisdiction, complete preemption of state law, and the presence of an

23 embedded federal question. See generally Notice ¶¶ 9–53.

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1 Unless otherwise indicated, the following facts are derived from the Complaint. (“Complaint” or “Compl.”)

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ECF No. 1, Ex. A.

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1 On April 1, 2022, the Oxnard Manor Defendants filed a Motion to Dismiss pursuant to

2 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 12. This motion was fully briefed

3 as of May 12, 2022. ECF Nos. 14 (“MTD Opp’n”), 17 (“MTD Reply”).

4 On April 22, 2022, Sigala filed a Motion to Remand. (“Remand Mot.”), ECF No. 13. The

5 Motion was fully briefed as of May 12, 2022. See ECF Nos. 15 (“Remand Opp’n”), 16 (“Remand

6 Reply”).

MOTION TO REMAND

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8 I. Legal Standard

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The “[f]ederal courts are courts of limited jurisdiction.” Corral v. Select Portfolio Servicing, Inc.,

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878 F.3d 770, 773 (9th Cir. 2017) (internal quotation marks omitted). Civil actions may be removed

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from state court if the federal court has original jurisdiction. See Syngenta Crop Prot., Inc. v.

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Henson, 537 U.S. 28, 33 (2002) (“Under the plain terms of § 1441(a), in order properly to remove

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[an] action pursuant to that provision, [the party seeking removal] must demonstrate that . . . original

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subject-matter jurisdiction must lie in the federal courts.”). Courts resolve all ambiguities “in favor

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of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing

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

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Removal of a state action may be based on either diversity or federal question jurisdiction.

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City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997); Caterpillar Inc. v. Williams, 482

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U.S. 386, 392 (1987). The defendant seeking removal of an action from state court bears the burden

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of establishing grounds for federal jurisdiction. Geographic Expeditions, Inc. v. Est. of Lhotka, 599

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F.3d 1102, 1106–07 (9th Cir. 2010).

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To determine whether an action involves a federal question, “a [district] court applies the

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well-pleaded complaint rule.” Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir.

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2009) (internal citations and quotations omitted). This rule provides that federal jurisdiction only

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exists when a “federal question is presented on the fact of the plaintiff’s properly pleaded

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complaint.” Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th

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Cir. 2014) (internal quotations omitted). As a result, a case may not be removed to federal court on

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the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated

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Case 2:22-cv-02003-MEMF-MAR Document 20 Filed 06/27/22 Page 4 of 13 Page ID #:315

1 in the plaintiff's complaint, and even if both parties concede that the federal defense is the only

2 question truly at issue.’” Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)).

3 Therefore, a “plaintiff can generally ‘avoid federal jurisdiction by exclusive reliance on state law.’”

4 City of Oakland v. BP PLC, 969 F.3d 895, 904 (9th Cir. 2020) (quoting Caterpillar, 482 U.S. at

5 392).

6 II. Discussion

7 The Oxnard Manor Defendants assert three grounds for removal: (1) federal officer

8 jurisdiction, (2) complete preemption of state law, and (3) the presence of an embedded federal

9 question. See generally Notice ¶¶ 9–53. Sigala seeks to remand for lack of subject matter

10 jurisdiction. Remand Mot. at 1.

11 A. Saldana Controls the Question Presented by Sigala’s Motion to Remand

12 This case presents nearly identical issues as Saldana v. Glenhaven Healthcare, LLC, a recent

13 Ninth Circuit case analyzing whether the PREP Act qualifies as a complete preemption statute. 27

14 F.4th 679 (9th Cir. 2022). The Saldana facts are strikingly similar to those presented here: relatives

15 of a deceased resident of a skilled nursing facility sued the facility in California state court for elder

16 abuse, willful misconduct, custodial negligence, and wrongful death. Id. at 683. The facility removed

17 the case to federal court arguing that the district court had three grounds for federal jurisdiction:

18 federal officer removal, complete preemption of state law, and the presence of an embedded federal

19 question. Id. Upon review of the PREP Act, the Ninth Circuit held that as the Act is not a complete

20 preemption statute, the facility was not entitled to removal. See id. at 683–89.

21 Indeed, several post-Saldana Ninth Circuit district court cases have similarly held that the

22 PREP Act is not a complete preemption statute. See, e.g., Branch v. Lilac Holdings, LLC, No. 21-cv-

23 00605-BAS-MDD, 2022 WL 1184358 (S.D. Cal. Apr. 21, 2022); Aguilera-Cubitt v. AG Seal Beach,

24 LLC, No. SACV 22-249 JVS, 2022 WL 1171028 (C.D. Cal. Apr. 20, 2022); Kovacs v. MEK

25 Norwood Pines, LLC, No. 2:22-cv-00120 WBS AC, 2022 WL 1129269 (E.D. Cal. Apr. 15, 2022).2

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27 2 Additionally, of twenty-five Ninth Circuit district court opinions analyzing the complete preemptive power

of the PREP Act, twenty-four have similarly held that the PREP Act does not completely preempt state law

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Case 2:22-cv-02003-MEMF-MAR Document 20 Filed 06/27/22 Page 5 of 13 Page ID #:316

1 The Oxnard Manor Defendants argue that Saldana is not binding on this Court because the

2 Oxnard Manor Defendants have “the understanding that [the] defendant in Saldana intends to file a

3 petition for writ of certiorari.” Remand Opp’n at 11 n.4; id. at 19 n.11. This argument is unavailing.

4 The Ninth Circuit has “unequivocally stated that a published decision constitutes binding authority

5 and must be followed unless and until it is overruled by a body competent to do so.” In re Zermeno-

6 Gomez, 868 F.3d 1048, 1053 (9th Cir. 2017). It is well-established that “once a federal circuit court

7 issues a decision, the district courts within that circuit are bound to follow it and have no authority to

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

9 authority.” Yong v. INS, 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (emphasis added). For the Court to

10 do otherwise would be “clear error.” In re Zermeno-Gomez, 868 F.3d at 1053.

11 B. The Oxnard Manor Defendants Do Not Qualify for Federal Officer Jurisdiction

12 The Oxnard Manor Defendants argue that as the Facility took “steps to prevent the spread of

13 COVID-19” and did so “in compliance” with directives from federal agencies, this case is also

14 removable under federal officer jurisdiction, 28 U.S.C. §1442(a)(1). Notice ¶¶ 44–53; Remand

15 Opp’n at 15. Sigala counters by arguing that the Oxnard Manor Defendants have failed to meet the

16 burden of proving the basis for jurisdiction as it does “not draw a connection” between their actions

17 and “the explicit directions of any federal officer’s direct orders or comprehensive and detailed

18 regulations” as is required by the statute. Remand Mot. at 18 (internal quotations omitted).

19 Federal officer jurisdiction, also known as federal officer removal, is governed by 28 U.S.C.

20 § 1442(a)(1). The statute provides that an action commenced in state court may be removed to

21 federal court when it is “against or directed to . . . [t]he United States or any agency thereof or any

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

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

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claims. See Remand Mot. 3–4 (collecting cases). The Oxnard Defendants urge the Court to rely on the lone

26 outlier, Garcia v. Welltower OpCo Grp., a district court case that predates Saldana. 522 F.Supp.3d 734 (C.D.

Cal. 2021), abrogation recognized No. 2:22-cv-00179-SVW-PLA, 2022 WL 845349 (C.D. Cal. Mar. 22,

27 2022). However, as discussed herein, Saldana clearly abrogates Garcia. Accordingly, the Court finds no

reason to depart from the controlling authority and does not consider Garcia in its analysis.

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Case 2:22-cv-02003-MEMF-MAR Document 20 Filed 06/27/22 Page 6 of 13 Page ID #:317

1 1442(a)(1). The statute’s purpose is to “protect the Federal Government from the interference with

2 its operations that would ensue were a State able, for example, to arrest and bring to trial in a State

3 court for an alleged offense against the law of the State, officers and agents of the Government

4 acting within the scope of their authority.” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 150

5 (2007) (citations and internal quotation marks omitted). And while the statute is to be “liberally

6 construed,” the statute’s “language, context, history, and purposes” may create limits in its

7 application. Id. at 147.

8 To remove a case to federal court under this statute, the defendant bears the burden of

9 meeting the following three-part test: “(a) [that the removing party] is a ‘person’ within the meaning

10 of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's

11 directions, and plaintiff’s claims; and (c) it can assert a ‘colorable federal defense.’” Fidelitad, Inc. v.

12 Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). To establish a “causal nexus,” the Oxnard Manor

13 Defendants must establish that it was “acting under” the direction of a federal officer and that those

14 actions are “causally connected” to Sigala’s claims. See Cnty of San Mateo v. Chevron Corp., 960

15 F.3d 586, 598 (9th Cir. 2020), vacated on other grounds, 141 S.Ct. 2666 (2021).

16 The parties do not appear to dispute that the Oxnard Manor Defendants qualify as a person

17 under the meaning of the statute. Instead, the bulk of their disagreement rests on whether the Facility

18 was acting “under the direction of a federal officer.” See Remand Mot. at 17–18; Remand Opp’n at

19 14–20; Remand Reply at 9–10.

20 Watson is the controlling case. 551 U.S. 142. There, the Supreme Court held that

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[A] highly regulated firm cannot find a statutory basis for removal in the fact of federal

22 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

23 “acting under” a federal “official.” And it is so even if the regulation is highly detailed

and even if the private firm’s activities are highly supervised and monitored. A contrary

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determination would expand the scope of the statue considerably, potentially bringing

25 within its scope state-court actions filed against private firms in many highly regulated

industries.

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Id. at 153.

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The Oxnard Manor Defendants argue that Watson’s restrictions do not apply here because

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Watson requires that a private firm, at a minimum “involve an effort to assist, or to help carry out,

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Case 2:22-cv-02003-MEMF-MAR Document 20 Filed 06/27/22 Page 7 of 13 Page ID #:318

1 the duties or tasks of the federal superior.” Remand Opp’n at 18 (citing id. at 151). Again, the

2 Oxnard Manor Defendants point to the “explicit guidance” and “high level of control” exercised by

3 the Centers for Medicare and Medicaid Services (“CMS”), the Center for Disease Control (“CDC”),

4 and the California Department of Public Health through directives and other instructions. Id. at 16–

5 18. The Oxnard Manor Defendants further contend that they were acting under the direction of a

6 federal officer because the federal government designated skilled nursing facilities like Oxnard as

7 “critical infrastructure” during the pandemic. Id. at 16. These decisions include: ordering facilities to

8 restrict visitation, canceling communal dining, implementing active screening of staff for fever and

9 respiratory symptoms, limiting access points, amending policies regarding interactions with vendors,

10 and amending procedures around end-of-life interactions with family members. Id. The Oxnard

11 Manor Defendants argue that, taken together, these “detailed clinical directives and instructions”

12 indicate that the federal government enlisted the Oxnard Manor Defendants “to carry out the duty of

13 the government” within the meaning of the statue. Id. This, they argue, is sufficient to meet Watson’s

14 minimum requirement of an “effort to assist, or to help carry out, the duties or tasks of the federal

15 superior.” Id. at 18 (citing Watson, 551 U.S. at 151).

16 However, this argument is unavailing. The Oxnard Manor Defendants concede that the bulk

17 of authority from Ninth Circuit district courts and the Ninth Circuit itself indicate that federal officer

18 removal is improper on these facts. Id. at 19. But the Oxnard Manor Defendants urge the Court to

19 look to out of circuit authority, arguing that none of the Ninth Circuit cases, Saldana included, are

20 binding on this Court. Id. As discussed above, Saldana is indeed binding.

21 Thus, applying Saldana’s analysis of Watson, the Court finds the presented evidence

22 insufficient. Just as the Ninth Circuit concluded in Saldana, “[a]ll that [defendant] has demonstrated

23 is that it operated as a private entity subject to government regulations, and that during the COVID-

24 19 pandemic it received additional regulations and recommendations from federal agencies. Thus,

25 [defendant] was not ‘acting under’ a federal officer or agency as contemplated by the federal officer

26 removal statute.” Saldana, 27 F.4th at 686; see also id. at 684 (“[S]imply complying with a law or

27 regulation is not enough to bring a private person within the scope of the statute.” (internal

28 quotations omitted)).

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1 As the Oxnard Manor Defendants have not met their burden to establish the “nexus,” the

2 Court does not analyze the remaining elements of the federal officer removal statute. Accordingly,

3 federal officer removal is improper.

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C. The PREP Act Does Not Confer Complete Preemption

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Sigala argues that none of his claims implicate federal law or “arise under federal law,

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because they raise no dispute or controversy regarding the validity, construction or effect of any

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federal law.” Remand Mot. at 7–8. The Oxnard Manor Defendants, on the other hand, argue that

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removal is proper because Sigala’s claims are completely preempted by the Public Readiness and

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Emergency Preparedness (“PREP”) Act, 42 U.S.C. §§ 247d-6d, 257d-6e. See Notice ¶¶ 13–43;

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Remand Opp’n at 6–14.

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Complete preemption is an “independent corollary to the well-pleaded complaint rule known

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as the complete pre-emption doctrine.” Retail Prop., 768 F.3d at 947 (internal quotation marks

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omitted) (quoting Caterpillar, 482 U.S. at 393). The doctrine “posits that there are some federal

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statutes that have such ‘extraordinary pre-emptive power’ that they ‘convert[ ] an ordinary state

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common law complaint into one stating a federal claim for purposes of the well-pleaded complaint

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rule.’” Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). “‘When a plaintiff raises

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such a completely preempted state-law claim in his complaint, a court is obligated to construe the

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complaint as raising a federal claim and therefore arising under federal law.’” Id. (quoting Sullivan v.

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Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005)). Like the well-pleaded complaint rule,

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complete preemption is “applicable to removal jurisdiction only; it is not a doctrine of defensive

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preemption.” Id.

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The complete preemption doctrine, however, rarely applies. It only arises in “extraordinary

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situations” where Congress has “manifested an intent to convert state-law claims into federal-

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question claims.” Holman v. Laulo–Rowe Agency, 994 F.2d 666, 668 (9th Cir.1993) (citations

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omitted). To date, the Supreme Court has only identified three sufficiently “extraordinary” statutes:

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(1) Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185; (2) Section 502(a) of the

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

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Case 2:22-cv-02003-MEMF-MAR Document 20 Filed 06/27/22 Page 9 of 13 Page ID #:320

1 of the National Bank Act, 12 U.S.C. §§ 85, 86. City of Oakland, 969 F.3d at 905–06. Accordingly,

2 the Ninth Circuit applies a two-step test to determine whether complete preemption “for the purposes

3 of federal jurisdiction under [section] 1331 exists”: (1) “when Congress intended to displace a state-

4 law cause of action;” and (2) “provided a substitute cause of action” (the “City of Oakland Test”). Id.

5 at 905 (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)).

6 i. The PREP Act

7 Before the Court can determine whether complete preemption applies in this case, a brief

8 summary of the PREP Act is necessary. Passed in 2005, the Public Readiness and Emergency

9 Preparedness Act (the “PREP Act” or “Act”), states that “a covered person shall be immune from

10 suit and liability under Federal and State law with respect to all claims for loss caused by, arising out

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

12 countermeasure.” 42 U.S.C. § 247d-6d(a)(1). “Covered persons” is defined, in part, as “a program

13 planner or qualified person with respect to the administration or use of [a] covered countermeasure.”

14 42 U.S.C. § 247d-6d(i)(2). “Covered countermeasures” include “qualified pandemic or epidemic

15 product,” drugs, biological products, or devices. Id. §§ 247d-6d(i)(1)(A)–(D).

16 There is, however, an exception to the Act’s immunity. Section 247d-6(d)(1) provides that

17 there is an “exclusive Federal cause of action against a covered person for death or serious physical

18 injury proximately caused by willful misconduct” of a covered person.” Id. § 247d-6(d)(1). Such an

19 action may only be “filed and maintained . . . in the United States District Court for the District of

20 Columbia.” Id.

21 The Act is invoked when the Secretary of Health and Human Services “makes a

22 determination that a disease or other health condition or other threat to health constitutes a public

23 health emergency, or that there is a credible risk that the disease, condition, or threat may in the

24 future constitute such an emergency.” Id. § 247d-6d(b)(1). “The Secretary controls the scope of

25 immunity through the declaration and amendments, within the confines of the PREP Act.” Saldana,

26 27 F.4th at 687 (citing Maglioli v. All. HC Holdings, LLC, 16 F.4th 393, 401 (3d Cir. 2021)).

27 Further, the Act includes a Covered Countermeasure Process Fund which exists to compensate

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1 “eligible individuals for covered injuries directly caused by the administration or use of a covered

2 countermeasure pursuant to such declaration.” Id. § 247d-6e(a).

3 Where applicable, the PREP Act preempts state laws that create different standards regarding

4 covered countermeasures. States and localities may not create or enforce legal requirements that

5 deviate from the Act’s provisions or relate to the use or administration of any of the covered

6 countermeasures. 42 U.S.C. § 247d-6d(b)(8).

7 On March 17, 2020, the Secretary issued a declaration for the current COVID-19 pandemic.

8 See generally Declaration Under the Public Readiness and Emergency Preparedness Act for Medical

9 Countermeasures Against COVID-19 issued March 17, 2020 (“March 17, 2020 Declaration”), ECF

10 No. 13-1, Ex. 2. The March 17, 2020 Declaration “provided immunity for covered persons for the

11 use of covered measures, including ‘any antiviral, any other drug, any biologic, any diagnostic, any

12 other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19.” Saldana,

13 27 F.4th at 687. Several amendments have been issued since. See generally Advisory Opinion on the

14 Public Readiness and Emergency Preparedness Act and the March 20, 2020 Declaration Under the

15 Act (“March 10, 2020 Advisory Opinion”), ECF No. 13-5, Ex. 3.

16 ii. The Plain Meaning of the PREP Act Does Not Imply Preemption

17 Here, Sigala argues that the plain meaning of the Act precludes preemption as the “language

18 of the Act denotes action taken, while the Plaintiffs’ Complaint pleads Defendants’ inaction (i.e.,

19 failure to sequester either infected employees or residents away from uninfected residents, failure to

20 protect residents.).” Remand Mot. at 9. The Oxnard Manor Defendants provide a different

21 interpretation of the Act’s plain language contending that, when taken together with the Secretary’s

22 Declarations and Advisory Opinions, it supports “a finding that the PREP Act completely preempts

23 Plaintiffs’ claims.” Remand Opp’n at 12–13.

24 In Saldana, the Ninth Circuit held that the PREP Act failed to satisfy the City of Oakland

25 Test. 27 F.4th at 687–88. Under the first prong, looking to the text of the statute, the Ninth Circuit

26 held that Congress only intended a federal claim “for willful misconduct and not claims for

27 negligence and recklessness.” Id. at 688 (citing 42 U.S.C. § 247d-6d(c)(1)). Under the second prong,

28 the Ninth Circuit found that administrative compensation provided by the Covered Compensation

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1 fund does not qualify as a substitute cause of action. Id. As such, the Ninth Circuit held that under

2 City of Oakland, “the PREP Act is not a complete preemption statute.” Id.

3 Moreover, the advisory opinions that the Oxnard Manor Defendants highlight to support their

4 argument that the PREP Act is a complete preemption statute do not support the defendants’

5 position. The Oxnard Manor Defendants direct the Court to the Department of Health and Human

6 Services’ (“HHS”) Advisory Opinion 21-01 (“AO 21-01”), which states that the PREP Act is a

7 complete preemption statute. Remand Opp’n at 20. However, the Ninth Circuit treats complete

8 preemption as a “jurisdictional rather than a preemption doctrine.” Dennis v. Hart, 724 F.3d 1249,

9 1254 (9th Cir. 2013). Accordingly, the Court’s analysis does not consider questions of preemption.

10 Moreover, an agency’s opinion on federal court jurisdiction is not entitled to Chevron deference. See

11 Saldana, 27 F.4th at 687 (citing Dandino, Inc. v. U.S. Dep’t of Transp., 729 F.3d 917, 920 n.1 (9th

12 Cir. 2013)). Thus, AO 21-01 and similar advisory opinions are not controlling on this question.

iii. Preemption of a Single Cause of Action Is Not Sufficient to Preempt All of Sigala’s

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State Law Claims.

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The Oxnard Manor Defendants further argue that because the Act explicitly preempts willful

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misconduct claims, the Court should find that the entirety of Sigala’s claims are preempted. Remand

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Opp’n at 10. But as “finding that one claim may be preempted is different than finding that the

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‘federal statutory scheme is so comprehensive that is entirely supplants state law causes of action,’”

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this argument also fails. Saldana, 27 F.4th at 688 (citing Retail Prop. Tri., 768 F.3d at 947).

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Accordingly, the Court holds that the PREP Act does not completely preempt Sigala’s state

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law claims.

21 D. As Sigala’s Claims Do Not Contain Embedded Federal Issues, the Grable Doctrine Does

Not Confer Federal Jurisdiction

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The Oxnard Manor Defendants further argue that federal question jurisdiction exists because

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various elements of the PREP Act are embedded in Sigala’s state-law claims. Remand Opp’n at 21.

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Sigala argues that because he only plead four state-law claims, his claims “raise no dispute or

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controversy regarding the validity, construction or effect of any federal law.” Remand Reply at 8.

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The Oxnard Manor Defendants invoke Grable & Sons Metal Prods. v. Darue Eng’g. &

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Mf’g., where the Supreme Court held that “in certain cases federal-question jurisdiction will lie over

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1 state-law claims that implicate significant federal issues.” 545 U.S. 308, 312 (2005); Notice at 10–

2 11; Remand Opp’n at 20–21.

3 Grable is interpreted in accordance with the “well pleaded complaint rule.” See Cal. Shock

4 Trauma Air Rescue v. State Comp. Ins. Fund, 636 F.3d 538, 542 (9th Cir. 2011) (“[A] state-law

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

6 rule and passes the ‘implicate[s] significant federal issues’ test.”) (quoting Grable, 545 U.S. at 312).

7 Grable applies “if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and

8 (4) capable of resolution in federal court without disrupting the federal state balance approved by

9 Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013).

10 The Oxnard Manor Defendants argue that Grable applies for two reasons. First, they contend

11 that the PREP Act

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(1) creates an exclusive federal cause of action for injuries caused by willful

13 misconduct; (2) establishes a compensation fund for injures directly caused by the

administration or use of covered countermeasures; (3) provides broad immunity for

14 loss relating to the administration or use of covered countermeasures; and (4) preempts

state laws that create different standards regarding [the] covered PREP Act must be

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read together and not in isolation in deciding whether there are substantial embedded

16 federal issues.

17

Remand Opp’n at 21. Second, the Oxnard Manor Defendants argue that HHS declarations and

18

advisory opinions issued by the Office of General Counsel, including AO-21-01, explicitly invoke

19

Grable and confirm that PREP Act requires that Sigala’s claims must be brought in federal court.

20

See id. at 21.

21

Both arguments fail. First, as provided by the well-pleaded complaint rule, Grable only

22

applies to claims specifically alleged by the plaintiff, not to federal issues raised as a defense. See

23

Cal. Shock, 636 F.3d at 542. Here, as already stated, the Oxnard Manor Defendants raise the PREP

24

Act as a defense. Sigala only alleges state law claims which are not preempted by the PREP Act.3

25

26

3 The Oxnard Defendants point to the fact that the PREP Act preempts Sigala’s willful misconduct claim as

27 evidence that Sigala placed his claims “squarely and exclusively in the United States District Court for the

District of Columbia.” Opp’n at 21. However, as previously discussed, preemption of one claim is not

28

12

Case 2:22-cv-02003-MEMF-MAR Document 20 Filed 06/27/22 Page 13 of 13 Page ID #:324

1 Second, as previously discussed, the Ninth Circuit has held that agency opinions “on federal court

2 jurisdiction [are] not entitled to Chevron deference.” Saldana, 24 F.4th at 688 (citing Dandina, 729

3 F.3d at 920 n.1) (specifically discussing AO-21-01’s lack of persuasive value).

4 Accordingly, the Court finds that Sigala’s claims do not raise an embedded federal question.

5

CONCLUSION

6

7

For the foregoing reasons, Sigala’s Motion to Remand is GRANTED. Accordingly, the

8

Oxnard Manor Defendants’ Motion to Dismiss is DENIED as MOOT. This case is remanded to the

9

California Superior Court for Ventura County.

10

11 IT IS SO ORDERED.

12

13 Dated: June 27, 2022 ___________________________________

14 MAAME EWUSI-MENSAH FRIMPONG

15 United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

sufficient to preempt all claims. See Saldana, 27 F.4th at 688 (citing Retail Prop. Tri., 768 F.3d at 947).

28

Accordingly, this argument is unpersuasive.

13