Gauntlett v. Illinois Union Insurance Company, No. 5:2011cv00455 - Document 53 (N.D. Cal. 2012)

Court Description: ORDER granting 32 Motion for Summary Judgment; denying 34 Motion for Reconsideration; denying 51 Motion for Leave to File. Since this determination is dispositive of the sole cause of action asserted, the court will enter judgment in favor of Illinois Union. The clerk shall close this file. Signed by Judge Edward J. Davila on 9/13/2012. (ejdlc1, COURT STAFF) (Filed on 9/13/2012)

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Gauntlett v. Illinois Union Insurance Company Doc. 53 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 9 SAN JOSE DIVISION 10 11 DAVID A. GAUNTLETT, Plaintiff, 12 13 14 15 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR RECONSIDERATION v. ILLINOIS UNION INSURANCE COMPANY, Defendant. (Docket Item Nos. 32, 34, 51) 16 17 Pending before the court is Defendant Illinois Union Insurance Company’s (“Illinois 18 Union”) motion for summary judgment, seeking an order that it did not have a duty to defend the 19 underlying lawsuit. See Docket No. 32. Also pending before the court is Plaintiff David A. 20 Gauntlett’s (“Gauntlett”) Cross-motion for Reconsideration of the court’s November 1, 2011 Order 21 Denying Plaintiff’s Motion for Partial Summary Judgment (“November 1, 2011 Order”). See 22 Docket No. 34. 23 Having reviewed the parties’ submissions, the court previously found this matter appropriate 24 for decision without oral argument. Civil L.R. 7-1(b). For the reasons discussed below, the court 25 GRANTS Illinois Union’s motion for summary judgment and DENIES Gauntlett’s motion for 26 reconsideration. 27 28 1 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION Dockets.Justia.com I. BACKGROUND 1 2 A. The Illinois Union Policy 3 Illinois Union issued Employment Practices Liability Insurance Policy No. 1262658 to 4 Gauntlett, as the named insured, effective July 10, 2006 through July 10, 2007 (the “Policy”). See 5 Docket No. 10-1. The Policy Declarations Page states that it is an “Employment Practices 6 Insurance Coverage Claims First Made and Reported” policy. Id. at 1-3. It further provides: 7 THIS IS A CLAIMS-MADE AND REPORTED POLICY - PLEASE READ IT CAREFULLY. 8 United States District Court For the Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE: THIS IS A CLAIMS-MADE AND REPORTED POLICY. EXCEPT AS OTHERWISE STATED, THE COVERAGE PROVIDED BY THIS POLICY IS LIMITED TO LIABILITY FOR EMPLOYMENT-RELATED DISCRIMINATION, EMPLOYMENT-RELATED HARASSMENT AND INAPPROPRIATE EMPLOYMENT FOR WHICH CLAIMS ARE FIRST MADE AGAINST THE INSURED WHILE THE POLICY IS IN FORCE AND THAT ARE REPORTED TO US DURING THE POLICY PERIOD OR ANY LIMITED OR EXTENDED PERIOD. ***** EMPLOYMENT PRACTICES INSURANCE ***** This policy covers Claims alleging Employment-related Discrimination, Employment-related Harassment and Inappropriate Employment Conduct liability in accordance with the terms, conditions, limitations and exclusions set forth in this policy. . . . ***** I. COVERAGE: WHAT IS COVERED A. We will pay Loss amounts that the insured is legally obligated to pay on account of a Claim because of an Insured Event to which this policy applies. . . . B. This policy applies only if: 1. A Claim is first made against the insured in accordance with Section III. WHEN COVERAGE IS PROVIDED; 2. The Claim is first reported in accordance with Section III. WHEN COVERAGE IS PROVIDED section and the CONDITIONS section X. A. Duties in the Event of a Claim; and ***** C. Defense. We have the right and duty to defend any Claim made or brought against any Insured to which this policy applies . . . . ***** 2 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 2 3 4 5 6 7 8 United States District Court For the Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 E. Duty to pay. We have the duty to pay any Loss that results from any Claim made or brought against any insured to which this policy applies.... We have the duty to pay Defense Costs incurred for the defense of any Claim which is controlled by us. ***** EXCLUSIONS: WHAT IS NOT COVERED ***** C. Employee Retirement Income Security Act and Other Laws. This policy does not cover any Loss imposed on the insured under: ***** 2. The Fair Labor Standards Act (except the Equal Pay Act); ***** 7. Rules or regulations promulgated under any of such statutes or laws, amendments thereto or similar provisions of any federal, state or local statutory law or common law; ***** J. Gain or Profit. This policy does not cover any Loss based upon, arising out of, or attributable to an insured gaining in fact any profit, remuneration or financial advantage to which such insured was not legally entitled. ***** III. WHEN COVERAGE IS PROVIDED A. This policy applies only to Claims arising out of an Insured Event that are first made or brought during the Policy Period and reported during the Policy Period or, if applicable, during the Limited or the Extended Reporting Period. A Claim is considered to be first made on the date a Management or Supervising Employee is served or first receives notice of a Claim. The date of Claim arising from a fact, situation or circumstance reported in accordance with the Notice of Potential Claim Condition will be the date notice is given under the policy. B. Limited Reporting Period means the thirty (30) day period after the policy ends, during which Claims first made or brought during the Policy Period can be reported. ***** XI. DEFINITIONS 23 A. Claim(s) means: 24 1. A written demand for monetary damages; 25 2. A civil proceeding commenced by the service of a complaint or similar pleading . . . . against any insured, . . . 26 ***** 27 28 3 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 2 3 4 5 6 7 8 United States District Court For the Northern District of California 9 10 11 12 13 14 15 16 B. Defense Costs mean those reasonable and necessary expenses that result from the investigation, settlement or defense of a specific Claim including attorney fees and expenses, . . . ***** F. First Party Insured Event means actual or alleged acts of Employmentrelated Discrimination, Employment-related Harassment, or Inappropriate Employment Conduct by an insured against an Employee, former Employee or applicant for employment with an insured entity. G. Inappropriate Employment Conduct means any actual or alleged: ***** 3. Employment-related misrepresentation to, humiliation of, or retaliation against an Employee, . . . . ***** 6. Employment related libel, slander, defamation of character or any invasion of right of privacy of an Employee, . . . . H. Insured Event includes a First Party Insured Event . . . ***** I. Loss 1. Loss means the amount the insureds become legally obligated to pay on account of each Claim . . . made against them for . . . Inappropriate Employment Conduct for which coverage applies, including, but not limited to, damages . . . settlements and Defense Costs. 2. Loss does not include . . . amounts owed under federal, state, or local wage and hour laws. Id. at 1-5 – 1-13 (emphasis added.) 17 B. The Tarzi Action 18 On May 9, 2007, Mariam Tarzi (“Tarzi”), a long-time Gauntlett employee, wrote a letter to 19 Gauntlett, demanding unpaid overtime wages, plus interest, for hours that she claimed to have 20 worked as a non-exempt employee. Tarzi’s letter stated: 21 22 23 24 25 26 27 28 “As you know, during my Nine (9) years of employment with the Firm, there have been numerous instances when I had to work more than eight (8) hours in one day or more than forty (40) hours in a week. The time records in the Firm’s computer system confirm this fact. However, I have never been paid any overtime. Although I have been classified as an exempt employee throughout my employment, I have since learned that I am not an exempt employee based on a number of factors, including but not limited to, the nature of my job duties and functions. In view thereof, I am entitled to and hereby request immediate payment for all of my unpaid overtime wages. As evidenced by the attached chart, I am owed unpaid overtime wages, plus interest. Please confirm your intent to honor your obligation regarding my overtime pay by this Friday, May 10, 2007, 9:30 a.m.” 4 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 2 See Zaroski Decl. Ex. B, Docket Item No. 16-2. Gauntlett responded to Tarzi’s letter on May 25, 2007, addressing her “claim for unpaid 3 overtime wages,” and denying that she was an exempt employee. See id. Ex. A at 8, Docket No. 4 16-1. On June 25, 2007, Gauntlett notified Illinois Union of the Tarzi claim arising from her May 5 9, 2007 letter and submitted (1) a copy of a Supplemental Claim Information form summarizing 6 Tarzi’s claim for unpaid overtime wages, (2) the letter from Gauntlett to Tarzi dated May 25, 2007, 7 and (3) correspondence from the Employment Development Department regarding Tarzi’s 8 unemployment claim. See id. ¶ 3, Ex. A, Docket No. 16-1. United States District Court For the Northern District of California 9 On August 16, 2007, Tarzi filed suit against Gauntlett, in an action entitled Tarzi v. Gauntlett 10 & Associates, et al., Consolidated Superior Courts of California, County of Orange, Central 11 District, Case No. 07-CC-08999 (the “Tarzi action”). See Gauntlett Decl. Ex. 2, Docket No. 10-2. 12 The complaint in the Tarzi action raised the following allegations: 13 5. Plaintiff became employed by defendant as a file clerk in June of 1998. From the onset of her employment, defendant classified her as an “exempt” employee, earning a monthly salary of $3,200. . . . 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. In late 2000, in addition to her duties as defendant’s file clerk, plaintiff was given additional job duties in that she began acting as defendant Gauntlett’s personal assistant. . . . But for her file clerk duties, defendant Gauntlett assigned plaintiff her daily and weekly list of projects to be completed. . . . On many occasions, defendant Gauntlett required that plaintiff work late hours, on holiday and weekends to complete her assigned work. 7. In addition to the tasks set forth above, as part of her “exempt” duties, defendant Gauntlett assigned plaintiff to: . . . [various duties assisting Gauntlett in personal matters.] 8. As a result of the numerous and diverse tasks Plaintiff was required to perform by defendant Gauntlett, Plaintiff did not take rest periods, often did not take a lunch, or would eat at her desk. When Plaintiff did leave the office on a “lunch break,” she often spent the entirety of her breaks running personal errands for defendant Gauntlett. Plaintiff worked overtime on a daily basis to meet defendant Gauntlett’s demanding needs and deadlines. ***** 10. On May 10, 2007, plaintiff provided defendant Gauntlett a letter regarding what she reasonably believed to be his choice to misclassify her as an “exempt” employee. She requested payment for her unpaid overtime hours. When plaintiff returned to work, she learned that all of her stored email communications, over 3000, had been deleted from her work computer. Plaintiff immediately brought this to the attention of defendant’s Technology Manager who stated that he knew nothing about 5 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION the missing documents. He looked at plaintiff’s computer and did, however, confirm that someone had changed her settings and deleted her stored e-mails. Plaintiff then advised defendant Gauntlett that someone had logged into her computer, manipulated the settings and deleted several thousand e-mails. Defendant Gauntlett had no response. 1 2 3 11. On May 14, 2007, after no written or verbal response to her demand for overtime compensation, Plaintiff gave her resignation. On May 17, 2007, defendant Gauntlett responded to plaintiff’s resignation letter, by stating: “Preliminary, I would like to state that the firm absolutely disputes your claims for overtime wages.” On May 25, 2007, he sent a follow up letter stating that Plaintiff was not entitled to overtime wages. 4 5 6 12. Plaintiff estimates that the total number of straight overtime hours worked between August 15, 2003 and May 14, 2007 to be in excess of 1131 hours. During this same time period, plaintiff estimates that the number of hours worked over 12 in a given work day and/or on legal holidays to be in excess of 117. Within this time period, plaintiff also estimates that the total number of days wherein plaintiff was either forced to perform work related tasks or personal ventures for defendant Gauntlett during her designated meal periods or simply could not take a lunch at all was in excess of 567. Finally, plaintiff estimates that the total number of missed rest breaks was in excess of 1512. To date, and despite her demands, plaintiff has not received any reimbursement for overtime hours, meal breaks or mileage reimbursement. 7 8 United States District Court For the Northern District of California 9 10 11 12 See Docket Item No. 10-2 (emphasis added). 13 Based on the above-alleged facts, Tarzi stated the following causes of action: 14 1. Failure to pay overtime wages (Cal. Lab. Code §§ 1194, 1199); 15 2. Failure to pay wages of terminated or resigned employees (Cal. Lab. Code §§ 201-203, 1199); 16 3. Failure to provide Rest Breaks and Meal Periods (Cal. Lab. Code §§ 226.7 and 512); 17 18 4. Failure to comply with Itemized Employee Wage Statement Provisions (Cal. Lab. Code § 226(B)); and 19 5. Violations of the Unfair Competition law (Cal. Bus. & Prof. Code §§ 17200-17208). 20 21 Id. Gauntlett provided notice of the Tarzi action to Illinois Union on or about September 4, 2007, 22 after it had been served with the summons and complaint. See Gauntlett Decl. ¶¶ 6-7, Docket No. 23 10. Gauntlett requested that Illinois Union defend Gauntlett in the Tarzi action and provided 24 Illinois Union with a copy of Tarzi’s complaint. Id. No additional information or documents were 25 provided to Illinois Union by Gauntlett in connection with the Tarzi action or Tarzi claim. See 26 Zaroski Decl. ¶ 7, Docket No. 16-1. 27 28 6 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION By letter dated September 27, 2007, Illinois Union declined coverage, claiming that the 1 2 allegations in the Tarzi action could not fall within the Policy’s definition of covered “Loss” or 3 were otherwise excluded by the Gain or Profit, the Compensation Earned or Due, and the 4 Employment Contracts Exclusions. Gauntlett Decl. ¶8, Ex. 3, Docket No. 10-3. Gauntlett paid for 5 its own defense in the Tarzi action, and the matter was resolved through settlement. Id. ¶¶ 10-11. On January 28, 2011, Gauntlett filed the instant declaratory judgment action, seeking to 7 establish that Illinois Union had a duty to defend Gauntlett in the underlying Tarzi action. See 8 Compl., Docket Item No. 1. On February 14, 2011, Gauntlett then filed a Motion for Partial 9 United States District Court For the Northern District of California 6 Summary Judgment re: Illinois Union’s Duty to Defend. On November 1, 2011, this court denied 10 Gauntlett’s motion for summary judgment finding that “the Tarzi action is based solely on ‘wage 11 and hour’ claims; Plaintiff faced no potential liability to Tarzi for claims of misrepresentation or 12 invasion of privacy. Since the Policy terms clearly preclude wage and hour claims from coverage, 13 Defendant owed Plaintiff no obligation to defend the Tarzi action.” November 1, 2011 Order at 14 15:10-13. 15 On January 3, 2012, Illinois Union filed this Motion for Summary Judgment. See Docket No. 16 32. On January 13, 2012, Gauntlett filed its Cross-Motion for Reconsideration, which as discussed 17 above the court deems to be a motion for leave to file a motion for reconsideration. See Docket No. 18 34. II. LEGAL STANDARD 19 20 A. Motion for Summary Judgment 21 The standard applied to a motion seeking partial summary judgment is identical to the 22 standard for a motion seeking summary judgment of the entire case. A motion for summary 23 judgment should be granted if “there is no genuine dispute as to any material fact and the movant is 24 entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a); Addisu v. Fred Meyer, Inc., 198 25 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the initial burden of informing the court 26 of the basis for the motion and identifying the portions of the pleadings, depositions, answers to 27 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material 28 7 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this initial 2 burden, the burden shifts to the non-moving party to go beyond the pleadings and designate 3 “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. A genuine 4 issue for trial exists if the non-moving party presents evidence from which a reasonable jury, 5 viewing the evidence in the light most favorable to that party, could resolve the material issue in 6 his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (9th Cir. 1991). 7 Conversely, summary judgment must be granted where a party “fails to make a showing sufficient 8 to establish the existence of an element essential to that party's case, on which that party will bear 9 United States District Court For the Northern District of California 1 the burden of proof at trial.” Celotex, 477 U.S. at 322. 10 11 B. Duty To Defend It is a fundamental rule of law that an insurer has a duty to defend an insured if it becomes 12 aware of, or if the third party lawsuit pleads, facts giving rise to the potential for coverage under 13 the insuring agreement. See Food Pro Intern., Inc. v. Farmers Ins. Exchange, 169 Cal. App. 4th 14 976, 985 (2008). It is the insured’s initial burden to show that a claim potentially falls within the 15 scope of the insurer’s coverages. Royal Globe Ins. Co. v. Whitaker, 181 Cal. App. 3d 532, 537 16 (1986). Where the facts create no potential for coverage, however, there is no duty to defend. “In 17 order to establish a duty to defend, an insured need only establish the existence of a potential for 18 coverage; while to avoid the duty, the insurer must establish the absence of any such potential.” 19 Ringler Associates Inc. v. Maryland Casualty Co., 80 Cal. App. 4th 1165, 1186 (2000) (internal 20 citations omitted). Doubts concerning the potential for coverage, and therefore, the existence of a 21 defense duty must be resolved in favor of the insured. Montrose Chemical Corp. v. Superior Court, 22 6 Cal. 4th 287, 299-300 (1993). 23 Whether an insurer has a duty to defend its insured against a third party complaint is 24 determined as of the time of “the inception of the third party lawsuit.” Id. at 295. The insurer does 25 so “by reference to the policy, the complaint and all facts known to the insurer from any source.” 26 Id. at 300. As an initial step, the allegations of the complaint are compared with the terms of the 27 policy. Atlantic Mut. Ins. Co. v. J. Lamb, Inc., 100 Cal. App. 4th 1017, 1033 (2002). “Facts 28 8 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 extrinsic to the complaint also give rise to a duty to defend when they reveal a possibility that the 2 claim may be covered by the policy.” Id. Whether coverage exists does not depend on the labels 3 given to the causes of action in the third party complaint; instead it rests on whether the alleged 4 facts or known extrinsic facts reveal a possibility that the claim may be covered by the policy.” Id. 5 at 1034 (citing Hurley Constr. Co. v. State Farm Fire & Cas. Co., 10 Cal. App. 4th 533, 538 6 (1992)). These facts must be “known by the insurer at the inception of the third party lawsuit.” 8 Gunderson v. Fire Ins. Exchange, 37 Cal. App. 4th 1106, 1114 (1995). An insured may not trigger 9 United States District Court For the Northern District of California 7 the duty to defend by speculating about claims that have not been alleged or asserted. Golden Eagle 10 Ins. Corp. v. Cen-Fed Ltd., 148 Cal. App. 4th 976, 988 (2007); Gunderson, 37 Cal. App. 4th at 11 1114; Hurley Constr., 10 Cal. App. 4th at 538. “[W]hile the universe of facts bearing on whether a 12 claim is potentially covered includes extrinsic facts known to the insurer at the inception of the suit 13 as well as the facts in the complaint, it does not include made up facts, just because those facts 14 might naturally be supposed to exist along with the known facts. An insured is not entitled to a 15 defense just because one can imagine some additional facts which would create the potential for 16 coverage.” Friedman Prof. Mgmt Co., Inc. v. Norcel Mut. Ins. Co., 120 Cal. App. 4th 17, 34-35 17 (2004). 18 C. Rules Governing Interpretation of Insurance Policies 19 In California, insurance contracts are to be interpreted in the same manner as any other 20 contract, with the fundamental goal of giving effect to the mutual intention of the parties. Bank of 21 the West v. Superior Court, 2 Cal. 4th 1254, 1264 (1992). To that end, “words in an insurance 22 policy are to be read in their plain and ordinary sense. Ambiguity cannot be based on a strained 23 instead of reasonable interpretation of a policy’s terms . . . .” McKee v. State Farm Fire & Cas. Co., 24 145 Cal. App. 3d 772, 776 (1983) (citation omitted); see also Am. Intern. Underwriters Ins. Co. v. 25 Am. Guarantee and Liability Ins. Co., 181 Cal. App. 4th 616, 629 (2010) (“An insurance policy is 26 not rendered ambiguous or uncertain because of a strained or grammatically incorrect reading of 27 the policy's terms. . . . strict construction does not mean strained construction.” (internal citations 28 9 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 and punctuation omitted)). “Any ambiguous terms are resolved in the insureds’ favor, consistent 2 with the insureds’ reasonable expectations.” Safeco Ins. Co. v. Robert S., 26 Cal. 4th 758, 763 3 (2001). Furthermore, policy exclusions are strictly construed, while exceptions to exclusions are 4 broadly construed in favor of the insured. Health Net, Inc. v. RLI Ins. Co., 206 Cal. App. 232, 251 5 (2012). 6 III. DISCUSSION 7 A. Motion for Leave To File a Motion for Reconsideration On January 12, 2012, Gauntlett filed its motion entitled, “Cross-motion for Reconsideration 8 United States District Court For the Northern District of California 9 Pursuant to Rules 59 and 60 Partial Summary Judgment Motion Re Illinois Union’s Duty to 10 Defend and Settle,” seeking reconsideration of the court’s November 1, 2011 Order. Docket No. 11 34. 12 Gauntlett claims it brings is motion pursuant to Civil L.R. 7-18. This district, however, does 13 not have a Civil L.R. 7-18. The court therefore applies Civil L.R. 7-9, which governs motions for 14 reconsiderations. Pursuant to Rule 7-9, “any party may make a motion before a Judge requesting 15 that the Judge grant the party leave to file a motion for reconsideration of any interlocutory order 16 made by that Judge on any ground set forth in Civil L.R. 7-9 (b). No party may notice a motion for 17 reconsideration without first obtaining leave of Court to file the motion.” Civil L.R. 7-9(a) 18 (emphasis added). Thus, the motion for reconsideration, which was filed without leave of court, is 19 procedurally improper and is therefore DENIED. Gauntlett also claims he bases his motion on Fed. R. Civ. P. 59 and 60. Rule 59(e) allows for 20 21 a motion to alter or amend a judgment. Here, no judgment has been entered, and therefore no 22 motion under Rule 59(e) can be filed. 1 Similarly, under Rule 60(b), a court may relieve a party 23 from a “final judgment, order, or proceeding.” Prudential Real Estate Affiliates, Inc. v. PPR Realty, 24 Inc., 204 F.3d 867, 880 (9th Cir. 2000); Lowe v. McGraw-Hill Cos., 361 F3d 335, 343 (7th Cir. 25 1 26 27 28 Additionally, a Rule 59(e) “motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). The motion for reconsideration was filed on January 12, 2012, more than 28 days after the November 1, 2011 Order was issued. For this reason as well, Gauntlett’s motion can not be brought under Rule 59(e). 10 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 2004). A denial of summary judgment is not a final order. See Miller v. Schoenen, 75 F.3d 1305, 2 1308 (8th Cir. 1996) (orders denying summary judgment “are not final orders in the traditional 3 sense”); c.f. Padfield v. AIG Life Ins. Co., 290 F3d 1121, 1124 (9th Cir. 2002) (order denying 4 summary judgment is reviewable when coupled with grant of summary judgment to opposing 5 party). Because an order denying partial summary judgment is interlocutory in nature and is not a 6 judgment and does not terminate an action as to all claims and parties, Rule 59(e) and Rule 60(b) 7 do not apply to Gauntlett’s cross-motion for reconsideration. 8 United States District Court For the Northern District of California 9 10 Accordingly, Gauntlett’s motion is DENIED on these bases as well. B. Motion for Summary Judgment The court therefore turns to Illinois Union’s motion for summary judgment that the 11 underlying Tarzi action did not trigger its duty to defend. Docket No. 32. 12 1. Estoppel 13 As a threshold matter, Gauntlett argues that Illinois Union should be estopped from asserting 14 lack of coverage for invasion of a right of privacy or misrepresentation as a basis for denying its 15 duty to defend. 16 To demonstrate estoppel, “(1) [t]he party to be estopped must know the facts; (2) he must 17 intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had 18 the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of 19 the true state of facts; and, (4) he must rely upon the conduct to his injury.” Spray, Gould & 20 Bowers v. Assoc. Intern. Ins. Co., 71 Cal. App. 4th 1260, 1262 (1999). Application of estoppel in 21 the insurance context typically arises from some affirmative, misleading conduct on the part of the 22 insurer. Spray, 71 Cal. App. 4th at 1268. Absent such affirmative conduct, estoppel may arise from 23 silence when the party has a duty to speak, such as where a legal obligation requires disclosure. Id. 24 25 26 27 28 Gauntlett does not cite to any evidence in support of any of the elements of estoppel. The entirety of Gauntlett’s estoppel argument consists of three sentences: “Notably, Illinois Union did not initially analyze whether the fact allegations supporting the wage and hour claims could support coverage under its EPLI policy for 11 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 3 a form of covered invasion of privacy or a misrepresentation. It is an ‘after the fact’ construction which followed the denial of any defense or settlement reimbursement for the underlying action. It should be estopped from making any arguments to contest any evidence brought to its attention in connection with this action as an additional grounds for declining a defense.” 4 Opp’n at 7:13-8:1 (citations omitted), Docket No. 34. Because Gauntlett neither cites the standard 5 for estoppel nor attempts to demonstrate that that standard is satisfied by Illinois Union’s conduct, 6 the court DENIES Gauntlett’s request for estoppel. 7 2. Wage and Hour Claims 1 2 Illinois Union argues that Tarzi’s wage and hour claim are not covered by the Policy. The 9 United States District Court For the Northern District of California 8 Policy only covers “Loss amounts that the Insured is legally obligated to pay on account of a Claim 10 because of an Insured Event.” See Docket No. 10-1 at 1-5. Wage and hour violations not included 11 in the definition of any “First Party Insured Event.” See id. at 1-13. Additionally, the definition of 12 “Loss” excludes “[a]mounts owed under federal, state or local wage and hour laws.” See id. at 1- 13 14. Additionally, the Policy bars coverage for any loss imposed on the insured under the Fair Labor 14 Standards Act (“FLSA”) or similar provisions of state statutory law, such as the California Labor 15 Code or Business and Professions Code. See id. at 1-6; c.f. TriTech Software Systems v. U.S. 16 Specialty Ins. Co., 2010 WL 5174371, at *6-7 (C.D. Cal. Dec. 13, 2010) (explaining the purpose of 17 an FLSA exclusion and the extent to which it covers similar state claims). Gauntlett does not 18 dispute that the wage and hour claims are excluded from coverage. 19 Although Tarzi’s wage and hour claims are excluded from coverage, Tarzi could still 20 maintain a claim for misrepresentation or invasion of privacy claims against Gauntlett. Even if an 21 exclusion applies to a cause of action that is expressly pleaded, the defense may still arise for other 22 claims that fall outside the excluded categories. See, e.g., National Union Fire Ins. Co. of 23 Pittsburgh, PA v. Seagate Technology, Inc., 233 Fed. Appx. 614, 616 (9th Cir. 2007). In other 24 words, claims by Tarzi for misrepresentation or invasion of privacy against Gauntlett could 25 proceed and succeed even if Tarzi were not entitled to unpaid wages. The court therefore considers 26 whether claims of misrepresentation or invasion of privacy were potentially alleged in the Tarzi 27 action, triggering Illinois Union’s duty to defend. 28 12 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 2 3. Invasion of Right of Privacy Gauntlett and Illinois Union dispute whether the underlying complaint raised allegations that 3 potentially support a claim for invasion of privacy. Gauntlett bases its argument on Tarzi’s 4 allegation that someone had logged into her work computer, manipulated the settings, and deleted 5 3,000 e-mails from her work computer. See Gauntlett Decl. Ex. 2 ¶ 10, Docket Item No. 10-2. 6 The Policy states provides coverage for “Inappropriate Employment Conduct,” which means “[e]mployment related libel, slander, defamation of character or any invasion of right of 8 privacy of an Employee, . . . .” See Docket No. 10-1 at 1-13 (emphasis added). The court 9 United States District Court For the Northern District of California 7 previously interpreted “any invasion of a right of privacy” to refer to common law torts involving 10 11 the invasion of a right of privacy because, 14 “California courts have recognized that insurance coverage for ‘offense’ based claims, including invasion of privacy, typically relate to one or more types of common law torts. See ACS Systems, Inc. v. St. Paul Fire & Marine Ins. Co., 147 Cal. App. 4th 137, 147 (2007); Fibreboard Corp. v. Hartford Acc. & Indem. Co., 16 Cal. App. 4th 492, 511 (1993). Pursuant to the doctrine of ejusdem generis, this conclusion is reinforced by the location of the term ‘invasion of right of privacy’ next to other torts, such as libel and slander.” 15 November 1, 2011 Order at 12:11-16. The court then determined that the Tarzi Complaint alleged 16 none of the elements of a privacy violation based on intrusion. Id. at 13. The court specifically 17 noted that the Tarzi Complaint did not allege 12 13 18 19 20 “that her e-mail communications had been searched, that these communications were personal, or that she had a reasonable expectation of privacy in the contents of any of the deleted e-mail communications stored in her work computer. Tarzi also did not allege that she was offended by the event or suffered mental anguish or any other damage as a result.” 21 Id. at 13:11-16. Furthermore, the court found that the allegation alone that 3,000 emails were 22 deleted from Tarzi’s work computer did not raise a potential that a violation of the right of privacy 23 coverage was being asserted. Id. at 13-15. 24 In line with the court’s prior holding, Illinois Union moves for summary judgment that the 25 Tarzi action did not trigger its duty to defend Gauntlett from liability for invasion of the right of 26 privacy. Specifically, Illinois Union argues that the invasion of privacy language coverage relates 27 to common law invasion of privacy torts, and the Tarzi Complaint did not allege any of the 28 13 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 elements of a privacy tort. Illinois Union further argues that Tarzi could not claim she had a right 2 of privacy in her work computer. Gauntlett argues that the plain and ordinary meaning of “any invasion of right of privacy” is 4 not limited to common law privacy torts. 2 Gauntlett argues that a layperson would understand this 5 language to mean coverage for invasion into a right to protection from interference with seclusion. 6 See Opp’n at 16:10-12 (citing the dictionary definition of privacy). Gauntlett further argues that, 7 even if coverage were limited to common law torts, the Tarzi Complaint raises a potential 8 “intrusion upon seclusion” tort violation 3 and that all of the elements of a particular tort need not be 9 United States District Court For the Northern District of California 3 pleaded in order to raise a potential for coverage sufficient to trigger and insurer’s duty to defend. 10 Id. at 16:14-18:9. The court agrees with Gauntlett that, in determining whether a potential for coverage existed, 11 12 the test is not whether Tarzi alleged facts sufficient to state a claim for relief under a common law 13 theory of invasion of privacy. Twin Star Ventures v. Universal Underwriters Ins. Co., No. 10-4284 14 MMC, 2012 WL 948842, at *4 (N.D. Cal. Mar. 20, 2012). Rather, the test is whether Tarzi’s 15 allegations raised a “potential for coverage” that a claim for invasion of the right of privacy could 16 be asserted. See Waller v. Truck Ins. Exchange, Inc., 11 Cal. 4th 1, 26 (1995); CNA Casualty v. 17 Seaboard Surety Co., 176 Cal. App. 3d 598, 609 n. 4 (1986) (holding “it is not [the] insurer’s place 18 to analyze and evaluate the underlying claim of liability in order to reject the defense of any claim 19 2 20 21 22 23 24 25 26 27 28 Gauntlett cites only one case applying California law in support of this argument. In Lens Crafters, Inc. v. Liberty Mutual Fire Ins. Co., No. C 04-1001 SBA, 2005 WL 146896, at *10 (N.D. Cal. Jan. 20, 2005), a court in this District held that the “right of privacy” was not limited to common law tort claims but also included the California constitutional right to privacy and statutory privacy rights. 3 Under California law, a privacy violation based upon “intrusion” consists of two elements: “First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person. These limitations on the right to privacy are not insignificant. Nonetheless, the cause of action recognizes a measure of personal control over the individual’s autonomy, dignity, and serenity. The gravamen is the mental anguish sustained when both conditions of liability exist.” Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286 (2009) (internal citations omitted) (holding that employer’s surveillance system did not violate the plaintiff employee’s right to privacy); see also Shulman v. Group W. Productions, Inc., 18 Cal. 4th 200, 231 (1998); Taus v. Loftus, 40 Cal. 4th 683, 725 (2007). 14 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 that is not meritorious”). Where a potential for coverage existed, the insurer was obligated to 2 defend, even if it was aware of a “sure-fire” defense to the underlying action, such as the “absence 3 of an element of a properly pleaded cause of action.” See id. at 612 n. 7 (internal quotation and 4 citation omitted). 5 Applying this standard, however, the allegations in the Tarzi Complaint—that “all of her stored email communications, over 3000, had been deleted from her work computer;” “someone 7 had changed her settings and deleted of her stored e-mails;” and “someone had logged into her 8 computer, manipulated the settings and deleted several thousand e-mails”—do not raise a potential 9 United States District Court For the Northern District of California 6 for a claim for invasion of a right of privacy. See Gauntlett Decl. Ex. 2 ¶ 10, Docket No. 10-2. No 10 potential claim is raised regardless of whether the invasion of a right of privacy coverage is defined 11 by the intrusion upon seclusion tort or by Gauntlett’s proposed plain meaning because Tarzi did not 12 allege facts indicating that she had a right to privacy or a right to protection from interference with 13 seclusion with respect to her work computer or the emails stored on her work computer. The 14 complaint contains no allegations regarding the nature of those emails, whether the work computer 15 contained any personal or private information, or facts otherwise showing Tarzi had an expectation 16 of privacy or of seclusion in her work computer. Gauntlett is not entitled to a defense just because 17 one can imagine some additional facts which would create the potential for coverage. See 18 Friedman Prof. Mgmt Co., Inc., 120 Cal. App. 4th at 34-35. 19 In the court’s November 1, 2011 Order, the court reviewed the absence of any allegations 20 regarding private, secret, or personal content on Tarzi’s work computer and case law indicating that 21 an allegation that an employer accessed an employee’s work computer does not, by itself, implicate 22 a right to privacy. The court reiterates its previous finding that the Tarzi Complaint does not allege 23 any facts demonstrating the potential that an invasion of privacy claim could be asserted. 24 Even if the Tarzi Complaint does not raise the potential for a privacy claim, Gauntlett argues 25 that had Illinois Union requested additional information before denying the claim, it would have 26 received evidence supporting privacy invasion claims. Specifically, in May 2007, Gauntlett 27 employed Talon Executive Services (“Talon”), a computer forensic analysis firm, who arranged for 28 15 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 the analysis of a computer that had been used by Tarzi while employed at Gauntlett. Alaniz Decl., ¶ 2 4, Docket No. 35. 4 Talon copied the hard drive from Tarzi’s computer and inspected it, looking for 3 email and other Internet traffic. Id. The analysis of Tarzi’s hard drive disclosed emails to and from 4 Tarzi’s personal web based email accounts. Id. ¶ 7. Reports of Talon’s activity would have been 5 available to Illinois Union had it requested that information. Id. ¶ 11. Although “[f]acts extrinsic to the complaint also give rise to a duty to defend when they 7 reveal a possibility that the claim may be covered by the policy,” Horace Mann Ins. Co., 4 Cal.4th 8 at 1081, those facts must be “known by the insurer at the inception of the third party lawsuit,” 9 United States District Court For the Northern District of California 6 Gunderson, 37 Cal. App. 4th at 1114 (emphasis added). Gauntlett has not provided any authority 10 indicating that the insurer’s duty to defend also hinges on extrinsic facts that are not known by the 11 insurer and are not tendered to the insurer. Accordingly, the court does not consider the Talon 12 forensic analysis in determining whether Illinois Union’s duty to defend was triggered in the Tarzi 13 action. 14 In sum, the court concludes that the Tarzi Complaint did not allege facts that support a 15 potential claim of invasion of a right of privacy and that Gauntlett has not provided extrinsic 16 evidence known to Illinois Union that would otherwise reveal a possibility of a privacy claim. 17 4. Misrepresentation 18 Gauntlett and Illinois Union dispute whether the underlying complaint raised allegations that 19 potentially support a claim for employment-related misrepresentation. Gauntlett bases its argument 20 on Tarzi’s allegations that Gauntlett had “mis-classif[ied] her as an ‘exempt’ employee” but that 21 she “was a non-exempt employee” and therefore Gauntlett was required to pay Tarzi overtime. See 22 Gauntlett Decl. Ex. 2 ¶¶ 5, 10, 15, Docket No. 10-2. 23 24 25 26 27 28 4 On January 20, 2012, Illinois Union filed a document entitled, “Illinios Union Insurance Company’s Objections to Declaration of Robert T. Alaniz in Opposition to Illinois Union’s Motion for Summary Judgment.” See Docket No. 39. Civil Local Rule 7-3(c) provides that “[a]ny evidentiary . . . objections to the opposition must be contained within the reply brief or memorandum.” Civil L.R. 7-3(c). Because Illinois Union’s separately-filed objections are procedurally improper, the court does not consider them for the purposes of this Order. 16 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION The Policy provides coverage for “Inappropriate Employment Conduct,” which means 1 2 “Employment-related misrepresentation to, humiliation of, or retaliation against an Employee.” See 3 Docket No. 10-1. Gauntlett previously argued Tarzi had pleaded a claim for the tort of negligent 4 misrepresentation, which triggered coverage for an employment-related misrepresentation. See 5 November 1, 2011 Order at 11; Pl’s Reply to Def.’s Opp’n to Mot. for Partial Summ. J. Re: Illinos 6 Union’s Duty To Defend at 7:15-9:4, Docket No. 17. 5 The court rejected that argument because, 7 “The Tarzi action did not allege any affirmative misrepresentations by Gauntlett, nor is misrepresentation a required element of any of the Tarzi causes of action, all of which related to wage and hour conditions of employment. To view these allegations as ‘employment-related misrepresentations’ is a strained interpretation of the Policy language in light of the facts presented. See Cal. Diaries, Inc. v. RSUI Indem. Co., 617 F. Supp. 2d 1023, 1050 (E.D. Cal. 2009). For these reasons, the Tarzi action could not conceivably impose liability against Plaintiff for an ‘employment-related misrepresentation.’” 8 United States District Court For the Northern District of California 9 10 11 November 1, 2011 Order at 11:21-12:5. In line with the court’s prior holding, Illinois Union moves 12 for summary judgment that the Tarzi action did not trigger its duty to defend Gauntlett from 13 liability for employment-related misrepresentation. 14 Gauntlett argues that coverage for an “employment-related misrepresentation to . . . an 15 employee . . .” is not language used in any special or technical sense. Gauntlett contends that the 16 tort of negligent misrepresentation need not be pleaded in order to trigger coverage for a 17 misrepresentation claim. Rather, Gauntlett argues, “misrepresentation” should be defined by its 18 ordinary meaning, which is “to represent incorrectly, improperly, or falsely.” Opp’n at 8:15-16 19 (citing the dictionary definition of misrepresentation). Gauntlett argues that under this broader 20 definition of misrepresentation, Tarzi’s allegation that she was misclassified as exempt asserted a 21 potential claim. See Complaint ¶ 10. 22 In support of his argument that misclassifying an employee is sufficient to assert a potential 23 misrepresentation claim, Gauntlett relies on Professional Security Consultants, Inc. v. U.S. Fire Ins. 24 5 25 26 27 28 Gauntlett argues that the court erred in its November 1, 2011 Order by interpreting the misrepresentation coverage to mean the tort of “negligent misrepresentation,” and then finding that the Tarzi allegations did not allege such a tort. The November 1, 2011 Order, however, did not determine that pleading the tort of negligent misrepresentation was necessary to trigger coverage. Rather, the court discussed and rejected Gauntlett’s argument that it had pleaded negligent misrepresentation and that was sufficient under the Policy to trigger coverage. 17 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 Co., No. CV 10-04588 SJO SSX, 2010 WL 4123786, at *3 (C.D. Cal. Sept. 22, 2010). In 2 Professional Security, “[t]he facts in the Underlying Action specifically allege that Plaintiff 3 ‘[d]isseminated false information throughout [Plaintiff's] facilities and amongst [Plaintiff's] 4 employees, reciting that, under [Plaintiff's] labor policies and practices and under California law, 5 the members of the Illegal Wages Class were not entitled to overtime compensation.’” Professional 6 Security, 2010 WL 4123786, at *3 (emphasis added). In Professional Security, the underlying 7 complaint alleged the employer had made affirmative false statements to its employees. 8 Here, however, the Tarzi Complaint does not allege that Gauntlett made any affirmative false United States District Court For the Northern District of California 9 statements to Tarzi. Rather, it alleges only that Gauntlett misclassified Tarzi as an exempt 10 employee, which resulted in Tarzi not receiving all benefits to which she was entitled. The 11 allegations in the Tarzi Complaint are more similar to the allegations made in California Diaries, 12 Inc. v. RSUI Indem. Co., 617 F. Supp. 2d 1023, 1050 (E.D. Cal. 2009). In California Diaries, a 13 complaint was filed against an insured employer alleging violations of various provisions of the 14 California Labor Code concerning denial of mandated meal periods, rest periods, reimbursement 15 for employee uniforms, and wages due at termination. 617 F. Supp. 2d at 1049. The employer 16 argued that these allegations triggered its insurance company’s duty to defend against claims 17 asserting employment-related misrepresentations to an employee because the employer had 18 misrepresented that it would abide by the law. Id. The court held that the employer’s interpretation 19 of “employment-related misrepresentations” was a strained interpretation of the Policy language 20 and the underlying complaint did not allege any misrepresentations. Id. at 1050. 21 Gauntlett argues that the Tarzi Complaint is distinct from the underlying complaint in 22 California Diaries because misclassifying an employee as exempt, leading to her long-term reduced 23 compensation, “is entirely different from the simple denial of miscellaneous benefits.” Opp’n at 24 13:5-7. From the allegation that Tarzi was misclassified as exempt, Gauntlett argues that the court 25 should infer that Gauntlett affirmatively made false representations to Tarzi including “pay stubs as 26 a method of calculation of wage provided to Tarzi and other alleged statements that Tarzi’s 27 complaint asserted.” Opp’n at 9:2-3. Gauntlett, however, does not cite to any portion of the Tarzi 28 18 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 1 Complaint that alleges statements regarding Tarzi’s exempt status were made to her in her pay 2 stubs or otherwise. This type of speculation about what potential false representations might have 3 been made by Gauntlett cannot trigger an insurer’s duty to defend. “An insured is not entitled to a 4 defense just because one can imagine some additional facts which would create the potential for 5 coverage.” Friedman Prof. Mgmt Co., Inc., 120 Cal. App. 4th at 34-35; Golden Eagle Ins. Corp., 6 148 Cal. App. 4th at 988 (An insured may not trigger the duty to defend by speculating about 7 claims that have not been alleged or asserted). The court reaches the same conclusion it reached in its November 1, 2011 Order and 9 United States District Court For the Northern District of California 8 concludes that construing Tarzi’s allegation that she was misclassified as an exempt employee to 10 be an “employment-related misrepresentation to an employee” requires a strained interpretation of 11 the Policy language and speculation about claims that were not alleged or asserted. Thus, the Tarzi 12 action does not assert a potential claim for misrepresentation. IV. CONCLUSION 13 14 15 16 Illinois Union’s motion for summary judgment is GRANTED. Gauntlett’s motion to file a statement recent decision (Docket No. 51) is DENIED. Since this determination is dispositive of the sole cause of action asserted, the court will enter 17 judgment in favor of Illinois Union. The clerk shall close this file. 18 IT IS SO ORDERED 19 Dated: September 13, 2012 _________________________________ EDWARD J. DAVILA United States District Judge 20 21 22 23 24 25 26 27 28 19 Case No.: 5:11-cv-00455 EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

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