Santos v. Ace American Insurance Company, No. 2:2012cv02059 - Document 24 (E.D. Cal. 2013)
Court Description: ORDER granting 11 Motion for Summary Judgment signed by Judge John A. Mendez on 11/27/13. (Kaminski, H)
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Santos v. Ace American Insurance Company Doc. 24 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ELIZABETH SANTOS, 11 14 2:12-CV-02059-JAM-EFB Plaintiff, 12 13 No. v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ACE AMERICAN INSURANCE COMPANY; and DOES 1 through 20, Inclusive, 15 Defendants. 16 This matter is before the Court on Defendant ACE American 17 18 Insurance Company’s (“Defendant”) Motion for Summary Judgment 19 (Doc. ##11-16). 20 opposed the motion (Doc. #17) and Defendant replied (Doc. ##20- 21 23). 1 Plaintiff Elizabeth Santos (“Plaintiff”) For the following reasons, Defendant’s motion is GRANTED. 22 I. 23 On July 14, 2009, Plaintiff was injured in an automobile 24 25 PROCEDURAL AND UNDISPUTED FACTUAL BACKGROUND accident with an underinsured motorist. Plaintiff’s Statement 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for October 23, 2013. 1 Dockets.Justia.com 1 of Undisputed Facts (Doc. #17, Ex. 1) (“PSUF”) at ¶ 1. 2 July 14, 2009, Defendant issued a Business Auto Insurance Policy 3 (“the 2009 Policy”) to Boehringer Ingelheim USA Corporation 4 (“Boehringer”), for the period of January 1, 2009 to January 1, 5 2010. 6 Undisputed Facts (Doc. #17, Ex. 2) at ¶ 1. 7 accident, Plaintiff was covered under the 2009 Policy, as an 8 employee of Boehringer operating a company vehicle in the course 9 and scope of her employment. Prior to Plaintiff’s Statement Disputing Defendant’s Statement of PSUF at ¶ 8. At the time of the On January 22, 2009, 10 Dorota Biernat (“Biernat”), the Executive Director, Finance at 11 Boehringer, executed an Uninsured/Underinsured Motorist 12 Selection/Rejection Form (“2009 UIM Rejection Form”), indicating 13 Boehringer’s rejection of bodily injury liability coverage for 14 damages caused by uninsured/underinsured motorists (“UIM 15 coverage”) under the 2009 Policy. 16 #15) at ¶¶ 10-11. 17 Biernat Declaration (Doc. On August 7, 2012, Plaintiff filed the Complaint (Doc. #1) 18 in this Court. 19 summary judgment against Plaintiff (Doc. #11). On September 5, 2013, Defendant moved for 20 21 II. OPINION 22 A. 23 Summary judgment is proper “if the pleadings, depositions, Legal Standard 24 answers to interrogatories, and admissions on file, together 25 with affidavits, if any, show that there is no genuine issue of 26 material fact and that the moving party is entitled to judgment 27 as a matter of law.” 28 summary judgment “is to isolate and dispose of factually Fed. R. Civ. P. 56(a). 2 The purpose of 1 unsupported claims or defenses.” 2 317, 323-324 (1986). 3 Celotex v. Catrett, 477 U.S. The moving party bears the initial burden of demonstrating 4 the absence of a genuine issue of material fact for trial. 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 6 If the moving party meets its burden, the burden of production 7 then shifts so that “the non-moving party must set forth, by 8 affidavit or as otherwise provided in Rule 56, ‘specific facts 9 showing that there is a genuine issue for trial.’” T.W. 10 Electrical Services, Inc. v. Pacific Electric Contractors Ass’n, 11 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 12 56(e)). 13 the manner most favorable to the non-moving party. United 14 States v. Diebold, Inc., 369 U.S. 654, 655 (1962). “[M]ere 15 disagreement or bald assertion that a genuine issue of material 16 fact exists will not preclude the grant of summary judgment”. 17 Harper v. Wallingford, 877 F. 2d 728, 731 (9th Cir. 1987). 18 The Court must view the facts and draw inferences in The mere existence of a scintilla of evidence in support of 19 the non-moving party’s position is insufficient: “There must be 20 evidence on which the jury could reasonably find for [the non- 21 moving party].” 22 applies to either a defendant’s or plaintiff’s motion for 23 summary judgment the same standard as for a motion for directed 24 verdict, which is “whether the evidence presents a sufficient 25 disagreement to require submission to a jury or whether it is so 26 one-sided that one party must prevail as a matter of law.” 27 /// 28 /// Anderson, 477 U.S. at 252. 3 This Court thus Id. 1 B. 2 Evidentiary Objections 1. 3 Relevance Objections, Generally Both Plaintiff and Defendant make a number of evidentiary 4 objections, many of which are based on relevance. As an initial 5 matter, relevance objections at the summary judgment stage are 6 redundant. 7 Supp. 2d 1110, 1119 (E.D. Cal. 2006). 8 judgment only when there is no genuine dispute of material fact, 9 “it cannot rely on irrelevant facts.” Burch v. Regents of Univ. of California, 433 F. As a court awards summary Id. Accordingly, 10 relevance objections are better saved for the substantive 11 discussion of the summary judgment motion. 12 the limited number of objections, the Court will address each in 13 turn. 14 15 2. Nevertheless, given Plaintiff’s Objections to the Biernat Declaration Defendant submitted an affidavit from Dorota Biernat (the 16 Executive Director, Finance at Boehringer). Plaintiff objects 17 to statements in Biernat’s affidavit on two grounds. 18 Plaintiff argues that Biernat’s belief that UIM coverage did not 19 exist in the 2009 Policy is irrelevant. 20 predominant legal issue in this case is whether there was a 21 clear agreement between the insurer and the insured 22 (Boehringer). 23 Cal.App.3d 194, 200 (1971). 24 opinion of the insured as to the existence or non-existence of 25 UIM coverage. 26 Cal.App.2d 599, 603 (1967) (supporting its determination that an 27 effective waiver of UIM coverage existed with a finding that 28 “there is no dispute between the insurer and the person to whom First, However, the Pechtel v. Universal Underwriters Ins. Co., 15 Relevant to that inquiry is the Myers v. Nat'l Auto. & Cas. Ins. Co., 252 4 1 the policy was issued as to what the provisions of the policy 2 were to be” in that “both intended and understood that the 3 uninsured motorist provision was to be deleted”). 4 opinion of the insured who signed the disputed waiver is 5 relevant to the Court’s inquiry, Plaintiff’s relevance objection 6 to the Biernat Declaration is overruled. As the 7 Second, Plaintiff argues that Biernat’s opinion as to the 8 non-existence of UIM coverage is incompetent opinion testimony 9 due to Biernat’s lack of “the necessary training, experience, or 10 knowledge to express a professional opinion.” 11 Biernat does not purport to express an expert opinion, and thus 12 her testimony is governed by Rule 701 of the Federal Rules of 13 Evidence (“FRE”). 14 is competent and admissible if it is “(a) rationally based on 15 the witness’ perception and (b) helpful . . . to determining a 16 fact in issue.” 17 not exist is rationally based on her experience as the 18 individual who personally signed the 2009 UIM Rejection Form. 19 Biernat Declaration (Doc. #15) at ¶ 11. 20 that UIM coverage did not exist is, of course, not conclusive 21 proof on this issue, it remains helpful to determining whether 22 there was an effective waiver of UIM coverage: as Biernat (on 23 behalf of Boehringer) does not dispute the non-existence of UIM 24 coverage, this tends to prove that that “the named insured and 25 the insurer clearly have agreed to delete the uninsured motorist 26 coverage.” 27 Cal.App.2d at 603. 28 overruled. Opp. at 3. Under FRE 701, non-expert opinion testimony Here, Biernat’s opinion that UIM coverage did Although her opinion Pechtel, 15 Cal.App.3d at 200; see also, Myers, 252 Accordingly, Plaintiff’s objection is 5 1 3. Defendant’s Objections to Plaintiff’s Affidavit 2 Plaintiff submitted her own sworn statement to the effect 3 that she did not know that Boehringer had waived UIM coverage, 4 and she thought that the 2009 Policy included UIM coverage. 5 Santos Declaration (Doc. #17, Ex. 4). 6 number of statements in this affidavit on relevance grounds. 7 Under California Insurance Code section 11580.2(a)(1), the 8 agreement to delete UIM coverage “by any named insured . . . 9 shall be binding upon every insured to whom the policy or Defendant objects to a 10 endorsement provisions apply.” 11 executed an effective waiver, deleting UIM coverage from the 12 policy, it is irrelevant whether Plaintiff knew about that 13 waiver or expected that UIM coverage was included in the policy. 14 See Weatherford v. Nw. Mut. Ins. Co., 239 Cal.App.2d 567, 569 15 (1966) (declining to interpret section 11580.2 as imposing a 16 requirement that an effective waiver of UIM be signed by “all” 17 insured parties). 18 the objected-to statements, is irrelevant, and Defendant’s 19 objections are sustained. 20 Court does not reach Defendant’s hearsay objections. 21 22 4. Accordingly, if Boehringer Accordingly, Plaintiff’s affidavit, including As the statements are irrelevant, the Defendant’s Objection to the Baumbach Declaration Plaintiff’s attorney, Larry Baumbach, submitted an 23 affidavit to the effect that Defendant has engaged in various 24 forms of discovery misconduct. 25 objects to these allegations of discovery misconduct as 26 irrelevant. 27 28 (Doc. #17, Ex. 3). Defendant As Defendant argues, Plaintiff’s allegations of discovery misconduct could be properly raised under Rule 56(d) of the 6 1 Federal Rules of Civil Procedure, through a specific discovery 2 request, or through a motion to continue or defer judgment. 3 See, e.g., Tatum v. City & Cnty. of San Francisco, 441 F.3d 4 1090, 1100 (9th Cir. 2006). 5 Defendant’s motion for summary judgment, these allegations of 6 discovery misconduct are irrelevant, as they do not tend to 7 prove or disprove a material fact. 8 objection is sustained. 9 5. However, in opposition to Therefore, Defendant’s Defendant’s Objections to the Beach Letter 10 Plaintiff’s Exhibit 1 is a letter, which purports to be 11 sent by someone named Steven Beach, informing Plaintiff that she 12 has $1 million of UIM coverage under the 2009 Policy. 13 attached to Opp. (Doc. #17). 14 on the grounds that it has not been properly authenticated and 15 that it is irrelevant. Ex. 1, Defendant objects to this letter 16 “The foundational requirement of authentication or 17 identification as a condition precedent to admissibility is 18 satisfied by evidence sufficient to support a finding that the 19 matter in question is what its proponent claims.” 20 v. Tank, 200 F.3d 627, 630 (9th Cir. 2000). 21 failed to provide any sworn testimony tending to prove that the 22 letter is what Plaintiff claims it to be. 23 letter has not been properly authenticated. 24 United States Here, Plaintiff has Accordingly, the Furthermore, even if the letter were authenticated, the 25 letter is irrelevant. Plaintiff has failed to cite any 26 authority suggesting that the doctrine of waiver and estoppel 27 applies, such that Defendant’s alleged communication with 28 Plaintiff negated Boehringer’s deletion of UIM coverage. 7 In 1 California, it is “well-established that the doctrines of 2 implied waiver and of estoppel, based upon the conduct or action 3 of the insurer, are not available to bring within the coverage 4 of a policy risks not covered by its terms, or risks expressly 5 excluded therefrom.” Manneck v. Lawyers Title Ins. Corp., 28 6 Cal.App.4th 1294, 1303 (1994). 7 whether Defendant sent a letter to Plaintiff informing her that 8 she had UIM coverage under the 2009 Policy. 9 objection is sustained. Accordingly, it is irrelevant Defendant’s As the letter lacks foundation and is 10 irrelevant, the Court does not reach Defendant’s hearsay 11 objections. 12 C. 13 14 Discussion 1. Governing Law California law mandates that UIM coverage be included in 15 every automobile policy issued by an insurer licensed in 16 California to cover a motor vehicle “then principally used or 17 principally garaged” in California. 18 § 11580.2(a)(1). 19 means by which the insured may reject UIM coverage: “The insurer 20 and any named insured, prior to or subsequent to the issuance or 21 renewal of a policy, may, by agreement in writing, in the form 22 specified in paragraph (2) or paragraph (3) . . . delete the 23 provision covering damage caused by an uninsured motor vehicle 24 completely.” 25 should appear in the written agreement to effect a valid 26 rejection. 27 operative terms of section 11580.2(a)(1) refer only to 28 “uninsured” motor vehicles, section 11580.2(a)(2) clarifies that Cal. Ins. Code However, the statute also provides an express Paragraph (2) spells out the exact language which Cal. Ins. Code § 11580.2(a)(2). 8 Although the 1 this “includes underinsured” motor vehicles as well. 2 2. Id. Conspicuous, Plain, and Clear Waiver 3 Plaintiff first argues that “there is no conspicuously 4 written or displayed exclusion of UIM coverage” in the 2009 5 Policy, as originally issued to Boehringer. 6 Plaintiff cites a number of cases for the proposition that an 7 ambiguity in an insurance policy must be construed against the 8 insurer, such that ambiguities are generally resolved in favor 9 of coverage. Opp. at 6. Opp. at 5 (citing In re K F Dairies, Inc. & 10 Affiliates, 224 F.3d 922, 926 (9th Cir. 2000); Hanson By & 11 Through Hanson v. Prudential Ins. Co. of Am., 783 F.2d 762, 763 12 (9th Cir. 1985)). 13 limitations must be “conspicuous, plain and clear.” 14 (citing Haynes v. Farmers Ins. Exch., 32 Cal.4th 1198, 1204 15 (2004)). 16 Home Fire Ins. Co. v. McCarty in its entirety. 17 892 (1968). 18 Boehringer is not ambiguous and, accordingly, the rules of 19 policy interpretation are inapplicable to this case. 20 5. 21 Rejection Form matches the statutorily required language 22 verbatim. 23 Plaintiff also notes that coverage Opp. at 6 In support of this argument, Plaintiff quotes Utah 266 Cal.App.2d Defendant responds that the exclusion signed by Reply at Defendant further notes that the language of the 2009 Mot. at 4. Plaintiff’s argument that the policy must be construed 24 against Defendant is misplaced. The 2009 Rejection Form 25 contains “conspicuous, plain and clear” language which deletes 26 UIM coverage from the policy. 27 the 2009 Rejection Form, Dorota Biernat’s initials appear 28 directly next to the words “I reject Bodily Injury Uninsured Haynes, 32 Cal.4th at 1204. 9 In 1 Motorists Coverage entirely.” 2 Biernat Declaration (Doc. #15). 3 the exact language contemplated by the Legislature in enacting 4 section 11580.2. 5 policy and only one reasonable interpretation exists: that UIM 6 coverage was deleted by virtue of the 2009 Rejection Form signed 7 by Boehringer. 8 interpretations are reasonable, we must adopt the interpretation 9 that favors coverage) (emphasis added). Exhibit A, attached to the In addition, the form contains Accordingly, there are no ambiguities in the Hanson, 783 F.2d at 763 (“[i]f two or more 10 Plaintiff’s extensive reliance on Utah Home is inapposite. 11 In Utah Home, the court considered the validity of an insured’s 12 waiver of UIM coverage. 13 insured signed a waiver form entitled “waiver of family 14 protection or protection against uninsured motorist coverage.” 15 Id. 16 “the form was then blank” and only later did the insurer add 17 more detailed language purporting to delete UIM coverage. 18 The court noted that “when [the insured] had signed the waiver 19 form it had told him (1) that it was to be an endorsement of the 20 policy; (2) that there was to be a “return premium”; and (3) 21 that it was to be counter-signed by an ‘authorized 22 representative.’ 23 The court found that the waiver of UIM coverage was ineffective, 24 as the insurer’s actions “created nothing but confusion” and the 25 insured, “as a layman . . . could not be expected to know that 26 . . . under strict contract law, these blemishes did not 27 necessarily make his waiver ineffective.” 28 /// Utah Home, 266 Cal.App.2d at 893. The According to the court, when the insured signed the waiver, Nothing of the sort happened.” 10 Id. Id. at 894. Id. at 895. 1 The present case is quite different from Utah Home. 2 notably, the waiver signed by Boehringer contained clear and 3 unambiguous language at the time that it was signed. 4 Furthermore, unlike in Utah Home, there is no dispute between 5 the insurer and the waiving insured (Boehringer) as to the non- 6 existence of UIM coverage. 7 Finally, none of the circumstances surrounding Boehringer’s 8 waiver create the “confusion” present in Utah Home. 9 3. Most Myers, 252 Cal.App.2d at 603. Absence of Defendant’s Signature on 2009 Rejection Form 10 11 Plaintiff next argues that the absence of Defendant’s 12 signature from the 2009 Rejection Form shows that Boehringer 13 never communicated its intent to reject UIM coverage to 14 Defendant. 15 ineffective under section 11580.2. 16 Mission Ins. Co. v. Brown stands for the proposition that “the 17 only way in which uninsured motorist coverage may be waived is 18 by an agreement in writing signed by the insurer and the 19 insured.” 20 that there is no statutory or case law requirement that both the 21 insurer and the insured sign a section 11580.2 waiver. 22 Defendant argues that the language cited by Plaintiff from 23 Mission was unnecessary to resolve the case, and thus is non- 24 binding dicta. 25 California cases have suggested that section 11580.2 waivers 26 need not be signed by both the insurer and the insured. 27 28 Plaintiff argues that this makes the waiver Plaintiff contends that 63 Cal. 2d 508, 509-10 (1965). Defendant responds Defendant also maintains that a number of Section 11580.2(a)(1) provides that “[t]he insurer and any named insured, prior or subsequent to the issuance or renewal of 11 1 a policy, may, by agreement in writing, in the form specified in 2 paragraph (2) . . . delete the provision covering damage by an 3 uninsured motor vehicle completely.” 4 in Mission that UIM coverage may only be waived by “an agreement 5 in writing signed by the insurer and the insured,” a number of 6 California courts have since found that a clear waiver, even if 7 it is not signed by the insurer, constitutes an effective 8 rejection under section 11580.2. 9 (1965). Despite the court’s dicta Mission, 63 Cal. 2d at 509-10 For example, in Abbott v. California State Auto Assn., 10 the court upheld the trial court’s finding that a section 11 11580.2 waiver was effective “based on the deletion of uninsured 12 motorist coverage by [the insurer] upon receipt of a letter from 13 [the insured] requesting that ‘uninsured motorists coverage not 14 be carried.’” 68 Cal.App.3d 763, 772 (1977). 15 expressly rejected the argument that “in order that there be a 16 valid waiver there must be a written agreement signed by both 17 the insured and the insurer.” 18 Similarly, the court in Holland v. Universal noted that “there 19 is no magic in having all signatures on the same document.” 20 Holland v. Universal Underwriters Ins. Co., 270 Cal.App.2d 417, 21 420 (1969) (citing Weatherford v. Nw. Mut. Ins. Co., 239 22 Cal.App.2d 567, 569 (1966), in which the insured sent a letter 23 to the insurer authorizing it to delete the coverage, and the 24 insurer then issued a separate document, signed by an authorized 25 representative). 26 The Abbott court Abbott, 68 Cal.App.3d at 772. Furthermore, in Harrison v. California State Auto Assn., 27 the court determined that a waiver of UIM coverage was effective 28 despite the fact that the insurer’s signature did not appear on 12 1 any of the documents which expressly mentioned plaintiff’s 2 waiver of UIM coverage. 3 Assn. Inter-Ins. Bureau, 56 Cal.App.3d 657, 666 (1976). 4 plaintiff in Harrison made the same argument advanced by 5 Plaintiff in the present case, maintaining “that the [entire 6 insurance] policy [was] effective but contend[ing] that only the 7 deletion of uninsured motorist coverage [was] ineffective 8 because no company signature appear[ed] on the cover sheet or 9 the endorsement.” Harrison v. California State Auto. Id. at 664. The The Harrison court expressly 10 rejected this argument, ruling that the waiver was effective and 11 that UIM coverage had been deleted from the policy. 12 Collectively, these cases stand for the proposition that 13 “[w]here the named insured and the insurer clearly have agreed 14 to delete the uninsured motorist coverage, the agreement will be 15 upheld” under section 11580.2. 16 Id. at 665. Pechtel, 15 Cal.App.3d at 200. Furthermore, it is well established that, in California, 17 “there is no requirement that every rider attached to a policy 18 must . . . be signed.” 19 also, Legare v. W. Coast Life Ins. Co., 118 Cal. App. at 663, 20 667 (1931) (noting that “[n]o requirement has been called to 21 [the court’s] attention that every rider attached to a policy 22 must . . . be signed”). 23 implying a corollary rule that any unsigned modification not 24 attached to the original policy is invalid. 25 Cal.App. at 667 (holding that the absence of the insurer’s 26 signature from an “illustration” attached to the policy did not 27 affect its validity, but distinguishing the illustration, which 28 was “part and parcel of the policy when it was issued,” from “a Harrison, 56 Cal.App.3d at 665; see It is possible to read these cases as 13 See Legare, 118 1 modification of the policy after its issuance”). 2 California court has directly addressed this issue, and more 3 recent cases suggest that a waiver of UIM under section 11580.2 4 need not be signed by the insurer, even if it is not attached to 5 the original policy when issued. 6 the court determined that a waiver of UIM coverage complied with 7 section 11580.2, where the insurer deleted the coverage after 8 receiving a letter from the insured. 9 772. However, no In Abbott, as discussed above, Abbott, 68 Cal.App.3d at This was despite the fact that the waiver was neither 10 signed by the insurer nor attached to the policy when originally 11 issued. 12 and Legare as requiring that a valid waiver under section 13 11580.2 must be either signed by the insurer or attached to the 14 policy when originally issued. 15 Id. Accordingly, the Court declines to read Harrison Defendant has noted that when “the Legislature intends that 16 both parties to an agreement must sign a written agreement, it 17 says so.” 18 permitting a court to enter judgment pursuant to the terms of a 19 settlement if “the parties to the pending litigation stipulate, 20 in a writing signed by the parties . . . for settlement of the 21 case”). 22 11580.2, which permits the insurer and the insured to delete UIM 23 coverage “by agreement in writing.” 24 11580.2(a)(1). 25 that “the named insured and the insurer clearly have agreed to 26 delete the uninsured motorist coverage.” 27 at 200. 28 section immediately following 11580.2, which governs agreements Reply at 3 (citing, as an example, the rule Notably, similar language is absent from section Cal. Ins. Code § As discussed above, this language requires only Pechtel, 15 Cal.App.3d This conclusion is buttressed by the language in the 14 1 to limit (rather than completely delete) UIM coverage. 2 Ins. Code § 11580.3. 3 such an agreement is valid if it is “signed by the named insured 4 and approved by the insurer.” 5 agreements under 11580.3 are valid even if only “approved” by 6 the insurer (as opposed to being “signed” by the insured), it 7 seems unlikely that the Legislature intended to implicitly 8 require that similar agreements under section 11580.2 be signed 9 by both the insurer and the insured. 10 11 4. Cal. In 11580.3, the Legislature provided that Id. (emphasis added). As Communication of Intent to Defendant Plaintiff’s overarching argument is that, although 12 Boehringer may have intended to reject UIM coverage, Defendant 13 has failed to establish that Boehringer communicated that intent 14 to Defendant. 15 of material fact: Defendant claims that it was apprised of 16 Boeheringer’s waiver, whereas Plaintiff claims that the 17 rejection was never communicated to Defendant. 18 closer examination reveals that Plaintiff has merely posed a 19 legal argument masquerading as a factual dispute. 20 “communication of intent” argument revolves around the absence 21 of Defendant’s signature from the 2009 Rejection Form. 22 discussed above, the significance of this absence is legal in 23 nature, not factual. 24 (characterizing a similar issue, relating to the absence of the 25 insurer’s signature from a waiver of UIM coverage, as “a 26 question of law”). 27 a section 11580.2 waiver does not preclude summary judgment in 28 favor of the insurer. At first blush, this appears to create a dispute However, a Plaintiff’s As See, e.g., Harrison, 56 Cal.App.3d at 665 The absence of the insurer’s signature from Id. Accordingly, as there are no issues 15 1 of material fact in this case, summary judgment is appropriate. 2 3 III. ORDER 4 For the reasons set forth above, Defendant’s Motion for 5 Summary Judgment is GRANTED. 6 IT IS SO ORDERED. 7 8 Dated: November 27, 2013 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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