Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

ORDER^** 

This case originated as a landlord-tenant controversy in California Municipal Court. The plaintiff-appellee Thomas filed a complaint in unlawful detainer and a summons was issued against the defendant-appellant Caruso in December 1988. She had failed to pay rent and refused to vacate.

When she refused to accept service of process, the court shortened the time and authorized substitute service by posting and mailing.

Caruso then petitioned for removal to the federal district court, asserting that her civil rights had been violated. The district court in February 1989 remanded to the state court, finding that there was no federal jurisdiction. Judge Patel observed:

The complaint is one for unlawful detainer. The action is between two California citizens. No federal claim or question appears on the face of the complaint nor could it be so construed even in light most favorable to defendant.

The assertion of federal civil rights in the petition for removal is, at best, the assertion of a defense. Such defenses must be asserted in state court; they are not the bases for removal.

The judge was quite right, but Caruso appeals, delaying final disposition of the plaintiff's action. His brief characterizes this as a frivolous appeal, asks for attorney's fees of $2,000, and attaches a sworn declaration supporting an allowance of that amount. Appellant makes no reply to that request nor to the amount requested.

If appellant were proceeding with the aid of counsel or had any sophistication in these matters, Caruso's request for sanctions would be granted. Given the circumstances, however, we do not award sanctions but do advise the appellant that a repetition of frivolous suits or appeals will lead to the imposition of monetary sanctions.

The appeal is dismissed for the reasons stated by the district court.