Fishman v. Tiger Natural Gas, Inc., No. 3:2017cv05351 - Document 82 (N.D. Cal. 2018)

Court Description: ORDER GRANTING IN PART 49 MOTION TO DISMISS AND 50 MOTION TO STRIKE by Judge Alsup. (whalc1, COURT STAFF) (Filed on 3/8/2018)
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Fishman v. Tiger Natural Gas, Inc. Doc. 82 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 12 EMILY FISHMAN and SUSAN FARIA, individually and on behalf of others similarly situated, 13 14 15 16 17 No. C 17-05351 WHA Plaintiffs, ORDER GRANTING IN PART MOTION TO DISMISS AND MOTION TO STRIKE v. TIGER NATURAL GAS, INC. and COMMUNITY GAS CENTER INC., Defendants. / 18 19 20 INTRODUCTION In this putative class action, defendant moves to dismiss or, in the alternative, strike 21 portions of plaintiffs’ second amended complaint. For the reasons set forth below, defendant’s 22 motion to dismiss is GRANTED IN PART AND DENIED IN PART and its motion to strike is 23 24 25 GRANTED IN PART AND DENIED IN PART. STATEMENT Prior to 2015, plaintiffs Susan Faria and Emily Fishman purchased natural gas from 26 PG&E. Around April and August of that year, respectively, defendant Tiger Natural Gas, Inc., 27 through its agent defendant Community Gas Center Inc., called plaintiffs to solicit them to buy 28 natural gas from Tiger through its price protection program. During those sales calls, defendants represented that Tiger customers would be charged a variable rate for natural gas 1 based on the market price, but with a price cap of $0.69 per therm (SAC ¶¶ 12, 16–18, 45–46; 2 Exh. A). 3 When a customer bought natural gas from Tiger, PG&E still delivered the gas over its their utility bills, Tiger customers had separate line items for PG&E gas delivery charges and 6 Tiger gas procurement charges. Defendants represented during their sales calls that PG&E had 7 recently increased its rates on natural gas, and that it would continue to do so in the coming 8 years. In reality, however, the California Public Utilities Commission had only approved a rate 9 increase for gas delivery, not for gas procurement, an important distinction. Moreover, PG&E’s 10 rates for gas procurement were in fact decreasing. Because Tiger’s price cap only applied to the 11 For the Northern District of California existing pipes. Accordingly, while PG&E customers had a single line item for “gas charges” on 5 United States District Court 4 gas procurement rate, and not the gas delivery rate, these statements made Tiger’s price cap 12 seem more beneficial (SAC ¶¶ 13, 24–28). 13 In reliance on defendants’ representations, plaintiffs switched their gas procurement 14 from PG&E to Tiger. With respect to the procurement rate actually charged under the program, 15 Tiger added a large surcharge to the market rate for natural gas, thereby charging plaintiffs 16 more for gas than they would have otherwise been charged by PG&E. Moreover, although 17 defendants advertised the program as “free,” Tiger added a $0.05 daily charge on customers’ 18 utility bills (SAC ¶¶ 14, 30–31, 37, 50, 52). 19 Plaintiffs further allege that defendants’ misrepresentations during these calls violated 20 PG&E Gas Rule 23. Gas Rule 23, entitled “Gas Aggregation Service for Core Transportation 21 Customers,” sets forth certain mandates governing the supply of natural gas to residential and 22 small commercial customers within PG&E’s territory. Plaintiffs describe Gas Rule 23 as a 23 contract between Tiger and PG&E but defendant describes it as a tariff. However that may be, 24 pursuant to Gas Rule 23, Core Transport Agents such as Tiger act as retail gas service providers 25 that compete with PG&E to provide customers alternative rates and rate structures. 26 27 To make matters worse, defendants recorded these sales calls despite not asking plaintiffs for consent to do so (or otherwise disclosing that the calls were recorded). Faria 28 2 1 received a sales call from defendants even though she had placed her home number on the Do- 2 Not-Call list in 2004 (SAC ¶¶ 19, 46–49). 3 After the sales calls concluded, an automated verification system asked plaintiffs for 4 their consent to record a second call. The automated system also stated that Tiger would mail 5 plaintiffs a copy of the price protection program’s terms and conditions. Plaintiffs do not 6 remember receiving such a mailing (SAC ¶¶ 43, 50). 7 Based on these allegations, plaintiffs bring claims on behalf of proposed sub-classes for: 8 (1) violations of the California Recording Law; (2) violations of the Telephone Consumer 9 Protection Act; (3) breach of oral contract; (4) breach of third-party beneficiary contract (Gas Rule 23); (5) violations of the Consumer Legal Remedies Act; (6) fraud; (7) negligent 11 For the Northern District of California United States District Court 10 misrepresentation; (8) false advertising; and (9) unfair competition. 12 In August 2017, plaintiff Fishman filed her original complaint against Tiger in state 13 court, which action Tiger removed to this district. After Tiger sought to dismiss Fishman’s 14 original complaint, Fishman filed a first amended complaint in which Faria intervened as an 15 added plaintiff and Community Gas Center was named as a new defendant. The parties 16 eventually stipulated to plaintiffs filing the second amended complaint (the operative 17 complaint), which first raised Gas Rule 23. Tiger now moves to dismiss and to strike the 18 second amended complaint (Dkt. No. 1, 13, 29, 49–50). This order follows full briefing and 19 oral argument. ANALYSIS 20 21 1. JUDICIAL NOTICE. 22 Tiger seeks judicial notice of three documents: (1) PG&E Gas Rule 23; (2) Gas 23 Schedule G-CT; and (3) a sample Core Gas Aggregation Service Agreement (Dkt. No. 51). 24 Plaintiffs seek judicial notice of these same documents, all of which are publically available and 25 the first two of which are incorporated by reference into the operative complaint (Dkt. No. 63). 26 A court may take judicial notice of any fact “not subject to reasonable dispute because it . . . can 27 be accurately and readily determined from sources whose accuracy cannot reasonably be 28 questioned.” FRE 201(b). The parties’ requests for judicial notice are accordingly GRANTED. 3 1 2 3 2. FAILURE TO STATE A CLAIM. A. California Recording Law Claim. Tiger moves to dismiss plaintiffs’ California Recording Law claim on the ground that 4 the second amended complaint fails to allege that defendants’ sales calls were protected 5 confidential communications. Section 632(c) of the California Penal Code defines “confidential 6 communication” as: 7 8 9 [A]ny communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. 10 that no one is ‘listening in’ or overhearing the conversation.” Flanagan v. Flanagan, 27 Cal. For the Northern District of California United States District Court Confidentiality requires “the existence of a reasonable expectation by one of the parties 11 12 4th 766, 772–73 (2002). This test is an objective one, and a plaintiff’s subjective expectation of 13 a private communication accordingly has little bearing. Id. at 776–77. 14 Tiger argues that plaintiffs’ allegations regarding the sales calls — namely that (1) the 15 parties discussed plaintiffs’ PG&E account information, (2) the calls were not made in a public 16 setting, and (3) many other telemarketers disclose that calls are recorded — are insufficient to 17 allege an objectively reasonable expectation of confidentiality. But unlike the facts presented in 18 Tiger’s authorities, here, the plaintiffs sufficiently allege personalized calls which involved the 19 disclosure of personal information. 20 In Weiner, for example, the exchange between the parties “barely amounted to a 21 communication or conversation.” The plaintiff was not the defendant’s customer and did not 22 disclose personal information, and the defendant had not even called to speak with the plaintiff 23 but rather asked for his ex-employee. Weiner v. ARS Nat. Servs., Inc., 887 F. Supp. 2d 1029, 24 1033 (S.D. Cal. 2012) (Judge M. James Lorenz). Similarly, in Rorty, the phone call at issue did 25 not concern the plaintiff’s personal financial affairs, but rather consisted of non-personalized 26 sales pitches regarding available products. Rorty v. Quicken Loans Inc, No. 12-cv-00560, 2012 27 WL 12886842, at *4 (C.D. Cal. July 3, 2012) (Judge Gary Feess). 28 4 1 And in Faulkner v. ADT Security Servsices, Inc., No. 11-cv-00968, 2011 WL 1812744, 2 at *4 (N.D. Cal. May 12, 2011) (Judge Jeffrey White), the district court found that in light of the 3 defendant’s business (home security) and the character of the telephone call (a billing dispute), 4 the plaintiff had no objectively reasonable expectation that the call would not be recorded or 5 monitored. In so concluding, Judge White distinguished the case from Membrila v. Receivables 6 Performance Management, LLC, No. 09-cv-2790, 2010 WL 1407274 (S.D. Cal. April 6, 2010) 7 (Judge Irma Gonzalez), where a call initiated by a debt collector discussed the plaintiff’s debt 8 and salary in an attempt to collect payment, which circumstances Judge White agreed supported 9 a reasonable expectation of confidentiality. Here, plaintiffs allege that defendants initiated a personalized call in which they were 11 For the Northern District of California United States District Court 10 invited to discuss their PG&E accounts, including confirmation of their home addresses, 12 account numbers, and rate schedule. This case more closely resembles Membrila and Kearney 13 v. Saloman Smith Barney Inc., 39 Cal. 4th 95, 118 n.10 (2016), where the California Supreme 14 Court recognized that callers to financial advisors had a reasonable expectation of privacy in 15 their conversations in light of the “strong privacy interest most persons have with regard to the 16 personal financial information frequently disclosed in such calls.” Construing the complaint in 17 the light most favorable to plaintiffs, this order finds that plaintiffs had an objectively 18 reasonable expectation that their calls with defendants would not be overheard or recorded. 19 Tiger’s motion to dismiss this claim is DENIED. 20 21 22 23 B. Telephone Consumer Protection Act Claim. Tiger next moves to dismiss plaintiffs’ TCPA claim on the ground that Faria fails to allege that she received more than one call in a 12-month period. The TCPA establishes a claim for relief for any user who receives “more than one 24 telephone call within any 12-month period by or on behalf of the same entity” at a number on 25 the Do-Not-Call list. 47 U.S.C. § 227(c)(5). The TCPA also provides a private right of action 26 for violations of Section 227(b) and regulations promulgated thereunder, which prohibit calls 27 (other than for an emergency) to cellphone numbers by way of an automatic telephone dialing 28 system (ATDS) without the prior express consent of the called party. 5 1 Faria does not dispute that she only alleges having received a single call from 2 defendants. Rather, she argues that because defendants allegedly made the sales call using “an 3 automatic telephone dialing system,” she has a private right of action under Section 227(b) and 4 its accompanying regulations. Contrary to plaintiffs, however, 47 C.F.R. § 64.1200(c) — which 5 concerns calls to numbers on the Do-Not-Call list — was promulgated under Section 227(c), 6 not Section 227(b). Drew v. Lexington Consumer Advocacy, LLC, No. 16-cv-00200, 2016 WL 7 1559717, at *6 (N.D. Cal. Apr. 18, 2016) (Judge Laura Beeler). Faria may not rely on this 8 provision to state a claim under Section 227(b). 9 Because Faria fails to allege that she received more than one call during a 12-month period, her claim under the TCPA fails as a matter of law. Tiger’s motion to dismiss this claim 11 For the Northern District of California United States District Court 10 is GRANTED. 12 13 C. Third-Party Beneficiary Contract Claim. Tiger argues that plaintiffs’ claim for breach of third-party beneficiary contract should 14 be dismissed because Gas Rule 23 is a tariff, not a contract between Tiger and PG&E. “Tariffs” 15 refer collectively to the sheets that a utility must file, maintain, and publish as directed by the 16 CPUC, and that set forth the terms and conditions of the utility’s services to its customers. 17 Davis v. S. California Edison Co., 236 Cal. App. 4th 619, 623 n.6 (2015) (quotes and citations 18 omitted). This order agrees that Gas Rule 23 is a “tariff rule.” N. Star Gas Co. v. Pac. Gas & 19 Elec. Co., No. 15-cv-02575, 2016 WL 5358590, at *10 n.4 (N.D. Cal. Sept. 26, 2016) (Judge 20 Haywood Gilliam, Jr.). Once a tariff is approved by CPUC, “[t]he law, not a contract between 21 the parties, prescribes the classifications, rates and liabilities attendant thereon.” Trammell v. 22 W. Union Tel. Co., 57 Cal. App. 3d 538, 550 (1976). Because plaintiffs fail to allege an 23 enforceable contract, their third-party beneficiary claim must be dismissed. 24 Plaintiffs respond that even if Gas Rule 23 is a tariff, the Core Gas Aggregation Service 25 Agreement entered into between Tiger and PG&E expressly incorporates Gas Rule 23. 26 Plaintiffs therefore seek leave to amend their complaint to assert a claim for breach of the 27 CGAS Agreement, rather than a breach of Gas Rule 23. Tiger agrees that a tariff can supply the 28 terms of a contractual agreement. It disputes, however, that plaintiffs are able to sufficiently 6 1 plead that they are the intended beneficiaries of the CGAS Agreement. Plaintiffs, while 2 conceding that they are not expressly named therein, rely on the Rule’s provisions entitled 3 “Customer Protection,” “Non-Compliance with Customer Protection,” and “Third Party 4 Verification” to show that plaintiffs are not merely incidental beneficiaries. 5 Leave to amend may be denied if it appears to be futile. A proposed amendment is 6 futile, however, only if no set of facts can be proved under the amendment to the pleadings that 7 would constitute a valid and sufficient claim or defense. Miller v. Rykoff-Sexton, Inc., 845 F.2d 8 209, 214 (9th Cir. 1988). While plaintiffs’ current allegations may be insufficient to show that 9 they are intended beneficiaries under the CGAS Agreement, that possibility has not been negated. A full determination should instead be made on a motion for leave to amend. Tiger’s 11 For the Northern District of California United States District Court 10 motion to dismiss this claim is GRANTED. 12 3. EXCLUSIVE JURISDICTION. 13 In light of plaintiffs’ invocation of Gas Rule 23 in the second amended complaint, 14 Tiger now moves to dismiss the action on the grounds that the California Public Utilities 15 Commission (CPUC) has exclusive jurisdiction to hear plaintiffs’ claims. Section 1759(a) of 16 the California Public Utilities Code provides that no court, except for the California Supreme 17 Court or a California court of appeal, has jurisdiction to interfere with the authority of the 18 CPUC in the performance of its official duties. To determine whether Section 1759(a) bars a 19 plaintiff’s claim, courts must consider: (1) whether CPUC has the authority to adopt a 20 regulatory policy on the issue in question; (2) whether CPUC has exercised that authority; and 21 (3) whether the current action would hinder or interfere with CPUC’s exercise of its regulatory 22 authority. San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893, 923–35 (1996) 23 (“Covalt”). 24 This order finds that — with the exception of plaintiffs’ claims for injunctive relief — 25 CPUC does not have exclusive jurisdiction over this action. Plaintiffs do not dispute that 26 California law authorizes CPUC to regulate the subject matter of this action. They also do not 27 dispute that CPUC has actually exercised this authority by approving Gas Rule 23, which 28 contains several consumer protection provisions and protocols regarding the resolution of 7 1 customer complaints. The parties dispute, however, whether adjudication of plaintiffs’ claims 2 would “hinder or interfere” with CPUC’s exercise of regulatory authority. 3 Tiger contends that resolution of plaintiffs’ claims requires the interpretation, 4 evaluation, and application of Gas Rule 23, which in turn interferes with CPUC’s exclusive 5 right to interpret its own regulations. Plaintiffs respond that Gas Rule 23 is, at most, integral to 6 their breach of third-party contract claim, but that in any event the application of Gas Rule 23 in 7 this case would not “hinder or interfere” with CPUC’s authority. 8 9 Courts are not precluded from acting in aid of, rather than in derogation of, CPUC’s jurisdiction. Hartwell Corp. v. Superior Court, 27 Cal. 4th 256, 275 (2002). Courts may therefore entertain actions which seek to enforce, rather than challenge, obligations created by 11 For the Northern District of California United States District Court 10 CPUC. N. Star Gas Co., 2016 WL 5358590, at *13. Even where a plaintiff only seeks to 12 enforce a CPUC rule, however, “the action is impermissible if its adjudication requires courts to 13 determine how, or even whether, an ambiguous CPUC rule applies” because such a 14 determination amounts to policymaking that hinders or interferes with CPUC’s exercise of 15 jurisdiction. Ibid. 16 With respect to plaintiffs’ damages claims, only their breach of third-party contract and 17 unfair competition claims require the application of Gas Rule 23. But even as to those claims, 18 this action does not present complex questions of interpretation, require the application of 19 ambiguous provisions, or require decisions on policy questions. Rather, plaintiffs simply assert 20 that defendants violated the express provisions of Gas Rule 23 by misrepresenting aspects of 21 Tiger’s price protection program, failing to disclose certain of the program’s terms, and failing 22 to send plaintiffs the required written terms and conditions. A damages award as to any of 23 plaintiffs’ claims would not hinder or impede any policy adopted by CPUC. 24 It may be, however, than an injunction would interfere with the CPUC’s regulatory 25 function. If and when the time comes for injunctive relief, there will be time enough to consider 26 this problem. For now, it is premature. Tiger’s motion to dismiss plaintiffs’ claims under the 27 exclusive jurisdiction doctrine is accordingly DENIED. 28 8 1 4. FILED-TARIFF RULE. 2 The filed-rate rule, also known as the filed-tariff rule, applies in regulated industries 3 where federal law requires a common carrier to publicly file schedules of services and the rates 4 or tariffs to be charged for those services. Davel Commc'ns, Inc. v. Qwest Corp., 460 F.3d 5 1075, 1084 (9th Cir. 2006). The rules requires that common carriers and their customers adhere 6 to tariffs filed and approved by appropriate regulatory agencies, and bars suits that would 7 “invalidate, alter or add to the terms of the filed tariff.” Evanns v. AT&T Corp., 229 F.3d 837, 8 840 (9th Cir. 2000). Tiger does not contend that California law recognizes a state equivalent to the filed- 9 tariff rule. Rather, Tiger argues that plaintiffs’ claims challenge conduct required under Gas 11 For the Northern District of California United States District Court 10 Rule 23 and that, accordingly, the entire complaint is barred. Contrary to Tiger, however, 12 plaintiffs’ allegations do not demonstrate Tiger’s compliance with Gas Rule 23. Nor do 13 plaintiffs’ claims challenge conduct mandated by that rule. 14 On a motion to dismiss, district courts must take the plaintiff’s allegations as true and 15 draw all reasonable inferences in the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d 16 556, 561 (9th Cir. 1987). As alleged, Tiger failed to comply with multiple subsections of Gas 17 Rule 23. Among other things, Tiger misled plaintiffs regarding its price protection program’s 18 terms and benefits, failed to disclosure certain of the program’s terms, and failed to send written 19 confirmation of the program’s conditions. Tiger wholly fails to explain how these alleged 20 misrepresentations and omissions were required under Gas Rule 23. Moreover, as a review of 21 the complaint demonstrates, these same misrepresentations and omissions help form the basis of 22 plaintiffs’ CLRA, fraud, negligent misrepresentation, false advertising, and unfair competition 23 claims. 24 Tiger is also unable to avoid plaintiffs’ California Recording Law claim on the ground 25 that Gas Rule 23 required Tiger to maintain recordings of customer sales calls. Tiger contends 26 (without citation to any authority) that this provision’s inclusion in Gas Rule 23 reflects 27 CPUC’s view that such sales calls are not “confidential communications” protected by the 28 California Recording Law. While Tiger may ultimately rely on Gas Rule 23’s provisions to 9 1 argue that any expectation of confidentiality held by plaintiffs was unreasonable, this provision 2 alone does not mandate conduct prohibited by the California Recording Law. Tiger’s motion to 3 dismiss the complaint on this ground is accordingly DENIED. 4 5. MOTION TO STRIKE. 5 Under FRCP 12(f), “the court may strike from a pleading an insufficient defense or any 6 redundant, immaterial, impertinent, or scandalous matter.” “Immaterial” matter is that which 7 “has no essential or important relationship to the claim for relief or the defenses being pleaded.” 8 5 Miller & Wright, Federal Practice and Procedure § 1382. Motions to strike are viewed 9 negatively because of the limited import of the pleadings under the Federal Rules. Such motions “should not be granted unless it is clear that the matter to be stricken could have no 11 For the Northern District of California United States District Court 10 possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsystems, Inc., 12 758 F. Supp. 1335, 1339 (N.D. Cal. 1991) (Judge Spencer Williams). 13 First, Tiger seeks to strike the allegations in the second amended complaint relating to 14 the claims dismissed in this order for failure to state a claim. Plaintiffs do not contest that 15 dismissed claims are properly stricken from the operative complaint. Accordingly, Tiger’s 16 request to strike allegations relating to plaintiffs’ TCPA and third-party beneficiary contract 17 claims is GRANTED. It is hereby ordered that the following be stricken: 18 • PROTECTION ACT (47 U.S.C. § 227 and 47 C.F.R. 64.1200)” 19 20 • • Paragraph 2, lines 7–8: “Tiger/CGC made some of those Sales Calls to telephone numbers on the Do Not Call list.” 23 24 Pg. 2, Caption: “BREACH OF TH IRD-PARTY BENEFICIARY CONTRACT (Cal. Civ. Code § 1559)” 21 22 Pg. 1, Caption: “2. VIOLATIONS OF TELEPHONE CONSUMER • Paragraph 5, lines 24–26: “Faria received Tiger/CGC’s Sales Call at her 25 telephone number which was on the Do Not Call list at the time and had been for 26 more than 10 years.” 27 28 • Paragraph 15, lines 24–26: “which is a contract between PG&E and Core Transport Agents (such as Tiger). Prospective customers like Plaintiffs Fishman 10 1 and Faria and the Class are intended third-party beneficiaries of Sections D-E 2 and Schedule G-CT of PG&E Gas Rule 23.” • 3 Paragraph 39, lines 27–28: “Tiger/CGC and their agents were not trained in the 4 proper use of the Do Not Call list and called prospective customers’ telephone 5 numbers on the Do Not Call list;” • Heading C., pg. 11, lines 4: “at Her Telephone Number on the Do Not Call List” 7 • Paragraphs 47–48 8 • Paragraph 75, lines 23: “that was registered on the Do Not Call List” 9 • 10 • Paragraph 80(b) Paragraph 80(k), lines 23-25: “(Tiger’s contract with PG&E that regulates how it can solicit new customers), Sections D-E of which are for customers’ benefit” 11 For the Northern District of California United States District Court 6 • 12 Paragraph 81, lines 28–29: “Faria and all members of the Do Not Call Sub-Class received Tiger’s calls at telephone numbers on the Do Not Call list.” 13 14 • Paragraphs 96–104, 116–133 15 • Paragraph 201, line 15: “federal and” 16 • Paragraphs 202–204, 216, 232–33 17 • Paragraph 234, lines 30-31; pg. 46, line 1: “the Telephone Consumer Protection 18 Act (47 U.S.C. § 227),” and “Restrictions on Telemarketing, Telephone 19 Solicitation, and Facsimile Advertising (47 C.F.R. § 64.1200)” Second, Tiger moves to strike allegations that Tiger solicited customers of gas providers 20 21 other than PG&E and failed to comply with Section 1782 of the California Civil Code, which 22 allegations Tiger contends are immaterial to plaintiffs’ claims. Tiger has not satisfied the high 23 burden to show that these matters have “no possible bearing” on this litigation. The motion to 24 strike these allegations is accordingly DENIED.1 25 26 27 28 1 Because this order does not rely on Exhibit A to the Declaration of Daniel Balsam (Dkt. No. 61-1), Tiger’s motion to strike is accordingly DENIED AS MOOT. 11 1 2 CONCLUSION The motion to dismiss is GRANTED IN PART AND DENIED IN PART and the motion to 3 strike is GRANTED IN PART AND DENIED IN PART, as set forth above. Plaintiffs may seek leave 4 to amend the dismissed claims and will have until MARCH 29 to file a motion, noticed on the 5 normal 35-day track, for leave to file an amended complaint. The motion must include a 6 proposed pleading (and a redlined copy) and must clearly explain why the foregoing problems 7 are overcome by the proposed pleading. Plaintiffs must plead their best case. 8 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 Dated: March 8, 2018. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12