Opposition Brief — Khashan v. WFS Financial Servs., Inc., 125 S. Ct. 353 (2004) (No. 04-202)

No. 04202

IN THE

Supreme Court of the Anited States

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MIKAIL KHASHAN,

Petitioner,

NINTH CIRCUIT COURT OF APPEALS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Tom R. Normandin, Esquire

PRENOVOST, NORMANDIN, BERGH & DAWE

Attorneys for Respondent, WFS Financial Services

2122 North Broadway, Suite 200

Santa Ana, CA 92706-3614

(714) 547-2444

Wright Appellate Services 0908

(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872

QUESTION PRESENTED

Did the Court of Appeals properly affirm, for the second

time, a remand order because the order challenged in the ap-

peal is not reviewable pursuant to 28 U.S.C. §/447(d)?

CORPORATE DISCLOSURE STATEMENT

REQUIRED BY SUPREME COURT RULE 29.6

Respondent WES Financial, Inc. states that it is a Calitor-

nia corporation, and has the following parent corporation:

Westcorp Inc., a publicly traded company. No other publicly

held company owns 10 or more of Respondent's stock.

TABLE OF CONTENTS

Questions Presented for RE VICW ....<csisicecisescnsesssncunsearnamaneannes i

Corporate Disclosure Statement Required by Supreme

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REBSONS FOF DCR YING TRE FCRIII ons sccvnncdcenssacemiantenviennes 6

1. The Court of Appeal Properly Affirmed the District

Court’s Remand Order Because a Remand Order ts

Pee TIN oo oop cove cantsacac carci eto en ee 6

>. Even if a Remand Order Was Reviewable. the District

Epes INCU FHAVES FUCRSCICUIOND oncin ccccincncsvcccanececcscecceccnvecant 6

3. 28 U.S.C.§ 1443 Does Not Provide Authority For Re

moval Jurisdiction In This Matter...................2............ 9

Re I Rr ee SS yl

TABLE OF AUTHORITIES

FEDERAL CASES

Caterpillar Inc., v. Williams, 482 US 386 (1987)............... 7

City of Greenwood v. Peacock, 384 U.S. 808 (1966) ......... )

Davis v. Glanton, 921 F.Supp. 1421, 1423 (E.D. PA

St LL clsundenankanecdacadeeounees 9)

Federal Deposit Ins. Corp. v. Otero, 598 F.2d 627

Te es cpu cduusicbsnecasdendasnen 8,9

Franchise Tax Board v. Construction Laborers Vacation

ON Fs ok Bo 208 0 OU GE ecco acanveccaxencacnceasceccacccuccen 6

Georgia v. Rachel, 384 U.S. 780 (1966)...............0.. eee. 7)

Gully v. First Nat'l Bank, 299 US 109 (1936)......0..0.0..0...... 7

Johnson v. Mississippi, 421 U.S. 213 (1975)... 10

Kunziv. Pan American World Airways, Inc. 833 F.2¢

eT, Ud sac duncdascankudnananceasdauensandent 6

Metro Ford Truck Sales Inc. v. Ford Motor Co., 145

ee Oe a ccanccannvadcudasccecacccnsecbachavoasases Ss

Rivet v. Regions Bank of Louistana, 522 US 470, 475

OO ee eek ch aukintiak 6

Sparta Surgical Corp. v. National Ass'n of

Securities Dealers, 159 F.3d 1209 (9th Cir. 1998) .

iV

Takeda v. Northwestern Nat'l. Life Ins. Co., 765 F.2d 815

UN IE ath ct cuniink cas taias tame saaeacead knead aman memeees 7

Wilson v. Republic Steel Co., 257 US 92 (1921)... ee. 6

FEDERAL STATUTES

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FR a A PED. Setideprcassnvana iis ideindecemasnpensancantedanbunabieue 1,6

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FEDERAL RULES

United States Supreme Court Rule 29.6 .......................:000

United States Supreme Court Rule 42. 20.0. 1]

United States Supreme Court Rule 43 ........ Ft AERO EA: 1]

INTRODUCTION

The U.S. Court of Appeals for the Ninth Circuit denied,

for a second time, Petitioner Mikail Khashan’s appeal of a

remand order for lack of jurisdiction pursuant to 28 U.S.C.

§1447(d). Petitioner then petitioned for a writ of certiorari

before this Court. The petition is without merit and should

be denied.

This matter originally started out as a replevin action in

the Superior Court for the County of Los Angeles, State of

California, for breach of a retail installment sales contract

secured by 1998 BMW, purchased by Petitioner, a California

resident. Respondent WFS Financial, Inc., a California cor-

poration, is the holder of the contract.

On the eve of trial, December 3, 2003, Petitioner removed

the action for a second time to United States District Court

for the Central District of California. The District Court re-

manded the matter back to Superior Court and Petitioner ap-

pealed to the United States Court of Appeals for the Ninth

Circuit, Who affirmed the remand order. Petitioner then filed

this peution for writ of certiorari. Petitioner is a paralegal

who has abused the judicial system; this petition is nothing

more than a delay tactic and should be denied.

STATEMENT OF THE CASE

On August 18, 2000, Petitioner purchased a BMW from

Jim Allen Motors, and executed a written Motor Vehicle

Contract and Security Agreement (“the Contract”). Jim Al-

len Motors assigned the Contract to Respondent who regu

ee

to

larly purchases vehicle sale contracts throughout the state of

California. Respondent perfected its lien on the BMW

through the California Department of Motor Vehicles, and is

named on the Certificate of Tithe for the Vehicle as lien

holder of record. Petitioner made several payments, but then

defaulted on his January 2001, payment.

On March 22, 2001, Petitioner filed for Chapter 7, bank-

ruptcy protection, Case No. 01-121577 and on December 17,

2001, his debts were discharged. However, Respondent’ lien

on the BMW remained.

On April 26, 2001, Respondent obtained relief from the

bankruptcy automatic stay to enforce its remedies to repos-

sess or otherwise obtain: possession and dispose of the

BMW.

On February 27, 2002 Respondent filed in the California

Superior Court for the County of Los Angles its complaint

for breach of contract, common count, claim and delivery,

conversion and possession of personal property, Case No.

BC 268963.

Petitioner filed a motion to quash service of the Summons

and Complaint claiming the complaint was served on his sis-

ter and not him. The Superior Court denied Petitioner's mo-

tion to quash. Petitioner later appealed the denial of his

motion to quash to the California Court of Appeal for the

Second District. The Appellate Court dismissed Petitioner’s

appeal for failure to file a Case Information Statement (Local

Rule 6).

On October 22, 2002, Petitioner filed an Answer to Re-

spondent’s complaint with the United States District Court

for the Central District of California, which had the effect of

removing the action to federal court.

On November 6, 2002, Respondent filed a motion to re-

mand the proceeding back to state court.

On December 6, 2002 the District Court granted Respon-

dent's motion to remand.

Not unexpectedly, on December 13, 2002 Petitioner filed

a Notice of Appeal of the first remand order to the United

States Court of Appeals for the Ninth Circuit. On June

20, 2003 the Ninth Circuit affirmed the District Court's Re-

mand Order and after the passage of some time, the matter

was remanded back to the Los Angeles Superior Court.

On some unknown date in 2003, Petitioner filed) an

"Emergency Motion tor Stay of Mandate Pending Applica-

tion for Certiorari” which was denied by the Ninth Circuit on

November 18, 2003.

On September 16, 2003, the Superior Court overruled Pe-

titioner’s demurrer and motion to strike portions of Re

spondent’s complaint and set the matter for trial on

December 5, 2003.

>

On December 3, 2003, two days before trial, Petitioner

filed a second “Notice of Removal to Federal District

Court’.

On December 4, 2003, the District Court issued a second

remand Order directing that the above captioned matter

again be returned to Superior Court.

Petitioner then filed a Motion for Reconsideration which

was denied on December 18, 2003. In its Order, the District

Court also set a December 24, 2003 deadline for Petitioner to

apologize to the court for, inter alia, suggesting the District

Court was communicating with Respondent and/or Respon-

dent's attorney and/or Superior Court Judge Buckner without

Petitioner being present.

On December 24, 2003, after the remand Order had been

entered, Respondent filed a demand for recusal of Judge A.

Howard Matz. Respondent also tiled a declaration that, in

essence, complied with the District Court's December 28,

2003 Order.

On January 12, 2004, Judge Margaret M. Morrow denied

Respondent's motion to disqualify Judge A. Howard Matz.

On February 24, 2004, the United States Court of Appeal

for the Ninth Circuit’ dismissed Respondent's appeal for lack

of jurisdiction.

On March 30, 2004, the United States Court of Appeal tor

the Ninth Circuit denied Respondent's motion for reconsid-

eration of its February 24, 2004, order.

On some unknown date, Respondent petitioned the United

States Supreme Court for a writ of certiorari.

REASONS FOR DENYING THE PETITION

1. The Court of Appeal Properly Affirmed the District

Court’s Remand Order Because a Remand Order is

Not Reviewable.

The Court of Appeals was without jurisdiction to hear the

appeal of the District Court’s December 4, 2003 Order re-

manding the matter to Superior Court. 28 U.S.C. §1447, and

Kunz v. Pan American World Airways, Inc. 833 F.2d 1291

(9th Cir. 1987) [order remanding case for lack of jurisdiction

is not reviewable].

:& Kven if a Remand Order Was Reviewable, the

District Does Not Have Jurisdiction.

Removal jurisdiction is only conferred on actions in which

a federal court has original jurisdiction. 28 U.S.C. §1441(a).

Thus, actions that could not have been filed in federal court

can not later be removed to federal court. Here this action

can not be removed because it could not have been filed in

federal court in the first place.

In order for a federal court to have jurisdiction, either

originally or by removal, a well-pleaded complaint must es-

tablish that federal law creates the cause of action. Fran-

chise Tax Board vy. Construction Laborers Vacation Trust,

463 US 1, 27-28 (1983); and Rivet v. Regions Bank of Lou-

istana, 522 US 470, 475 (1998).

The party seeking to invoke removal jurisdiction bears the

burden of supporting its jurisdictional allegations with com-

petent proot. Wilson v. Republic Steel Co., 257 US 92,97

>

(1921). The Court's removal jurisdiction must be analyzed

on the basis of the pleadings at the time of removal. Sparta

Surgical Corp. v. National Ass'n of Securities Dealers, 159

b.3d 1209, 1213 (9th Cir.1998). District courts must con-

strue the removal statutes strictly against removal and _re-

solve any uncertainty as to removability in) favor of

remanding the case to state court. Takeda v. Northwestern

Nat'l. Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985).

In determining whether the case “arises under" federal

law, federal courts look solely to the necessary allegations of

plaintiff's complaint (Ze. those essential to the cause of ac-

tion). Gully v. First Nat'l Bank, 299 US 109, 112 (1936).

The “well-pleaded complaint rule” makes Plainutf the “mas-

ter of the claim" for purposes of removal jurisdiction. This

means that, absent diversity, a case ts only removable where

a federal question is presented on the face of plainutf's com-

plaint. Caterpillar Inc., v. Williams, 482 US 386, 392

(1987).

In the instant case, Respondent is pursuing Petitioner un-

der state law to recover its collateral after breach of a retail

installment sales contract. Respondent’ complaint does not

allege, assert, maintain, mention, or even refer to a federal

claim. Accordingly, the present action does not raise any

federal issue and the District Court does not have jurisdic-

tion.

Petitioner alleges he has several counter-claims against

Respondent, Respondent’ counsel, the Superior Court of

California and numerous others for violating his federal

rights in this matter. However, for both original and removal

~J

jurisdiction, the federal question must be presented by plain-

uiffs complaint as it stands at the ume of removal. Removal

cannot be based on a counterclaim, cross-claim or third party

claim raising a federal question, whether filed in state or fed-

eral court. Otherwise, defendants could manipulate removal

jurisdiction. Metro Ford Truck Sales Inc. v. Ford Motor Co.,

145 F.3d 320, 327 (Sth Cir. 1998). Thus, Petitioner cannot

use broad, ambiguous and unfounded claims against Re-

spondent, Respondent's counsel, the Superior Court of Cali-

fornia and others to maneuver the present action into federal

court.

Petitioner argues that "when a plaintiff by a voluntary act

interposes a federal question that did not appear in the com-

plaint as originally tiled, the defendant may remove the case

to federal court." Federal Deposit Ins. Corp. v. Otero, 598

F.2d 627 (Ist Cir. 1979). In Otero, the court held the case

was removable despite the fact that the complaint did not

assert federal causes of action because a federal agency, the

FDIC, stepped in as party plaintiff and put in issue the fed-

eral laws governing its rights and liabilities as a creditor.

Petitioner erroneously contends that 28 U.S.C. $1653 al-

lows him to amend the pleadings to cure defective jurisdictional

allegations. Respondent's complaint does not raise a federal ques-

tion and Petitioner may not manipulate the case into federal court

by making frivolous and vague cross-claims or counter-claims alleging

civil rights violations. "For better or worse . . . a defendant may not re

move a case to federal court unless the plaintiff's complaint establishes

that the case rises under federal law." Franchise Tax Board. 463 U.S. at

11.

Consequently, the court recognized that: federal law would

necessarily be involved in littgation of the action. Here, Re-

spondent is the Plaintiff and is nota federal agency. Thus,

Petitioner's reliance on Orero ts entirely misplaced.

3.) 28 U.S.C.81443 Does Not Provide Authority For

Removal Jurisdiction In This Matter.

Pettuoner erroneously asserts that 28° U.S.CLS/443) pro-

vides authority for removal jurisdiction ino this matter.”

However, 28) ULS.C. S/443 was enacted when state court

lawsuits: were being used to thwart enforcement of civil

rights laws. In modern practice, removal under these provi

28 USC. $1443 provides: “Any of the following civil actions or

criminal prosecutions, commenced in a State court may be removed

by the defendant to the district court of the United States for the

district and division embracing the place wherein it is pending:

(1) Against aay person who ts dented or cannot enforce tn the

courts of such State a right under any law providing tor the equal

cul rights of citizens of the United States, or of all persons within

the yurisdiction thereof; (2) For any act under color of authority

derived from any law providing for equal rights, or for refusing to

do any act on the ground that it would be inconsistent with such

law.” Removal under 28 U.S.C. §/443(2) applies only to federal

officers or persons assisting such officers in performing their du-

ties under federal civil rights laws. Greenwood v. Peacock, 384

U.S. 808, 828 (1966). In the present case, removal under 28

U.S.C. §1443(2) does not apply because Respondent ts not a fed-

eral officer, nor is it assisting such officers in performing their du-

ties under federal civil rights laws.

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sions is rare. Davis v. Glanton, 921 F.Supp. 1421, 1423-

1424 (E.D. PA 1996).

In order to remove a case under 28 U.S.C. § 1443, a two-

part standard must be met. (/d.) First, a person must be de-

prived of a specific federal right pe raining to racial equality

that is protected through a federal statute. City of Green-

wood v. Peacock, 384 U.S. 808, 825-26 (1966); and, Georgia

». Rachel, 384 U.S. 780, 791-92 (1966). Secondly, the per-

son must show that he will be deprived of this right in-state

court, either due to the existence of a state constitution oF

statute mandating discrimination, or alternatively because the

adjudication of the claim in state court would inherently vio-

late federal law. Johnson v. Mississippi, 421 U.S. 213, 219

(1975).

Here, the state court lawsuit is not being used to defeat

enforcement of civil rights laws. Respondent is simply en-

forcing the lien rights Petitioner granted 1 under a motor ve-

hicle financing agreement. To suggest that Respondent

brought this action to thwart enforcement of a civil rights

law is pure fiction.

By raising due process and similar federal questions, Pet-

tioner is merely attempting to orchestrate removal jurisdic-

tion so as to delay trial. There is simply no federal question

jurisdiction presented here.

10

CONCLUSION

This petition for writ of certiorart is just another step in

Petitioner’s effort to delay tnal and convert Respondent's

property rights. The Court of Appeal’s affirmation of the

remand order was proper. There are not any grounds tor Pe-

tiioner to seek review of the Court of Appeal’s decision and

Respondent respecttully requests that Petitioner's petition for

writ of certiorar) be denied. Respondent turther requests an

award of just damages and double costs against Petitioner

pursuant to United States Supreme Court Rules 42 and 43 as

this petition for writ of certiorari is frivolous and without any

basis in fact or law.

DATED: September 9, 2004

PRENOVOST, NORMANDIN, BERGH & DAWE

A Professional Corporation

By:

THOMAS J. PRENOVOST, JR.

TOM RODDY NORMANDIN

2122 North Broadway

Suite 200

Santa Ana, CA 92706-2614

(714) 547-2444

Attorneys for Respondents,

WES Financial Inc., et al.