Kilby v. CVS Pharmacy, Inc., No. 3:2009cv02051 - Document 231 (S.D. Cal. 2018)
Court Description: ORDER Denying 195 Defendant CVS Pharmacy, Inc.'s Motion for Summary Judgment. The Court denies CVS's motion for summary judgment. The Court orders the parties to contact the chambers of the assigned magistrate judge within 3 business days regarding the scheduling of a mandatory settlement and case management conference as soon as practicable. Signed by Judge Michael M. Anello on 5/31/2018. (rmc)
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Kilby v. CVS Pharmacy, Inc. Doc. 231 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Plaintiff, 12 13 v. 14 CVS PHARMACY, INC., 15 Case No.: 09cv2051-MMA (KSC) NYKEYA KILBY, ORDER DENYING DEFENDANT CVS PHARMACY, INC.’S MOTION FOR SUMMARY JUDGMENT Defendant. [Doc. No. 195] 16 17 18 19 Plaintiff Nykeya Kilby brings this action to recover penalties pursuant to the 20 California Labor Code Private Attorneys General Act of 2004 (“PAGA”) against her 21 former employer Defendant CVS Pharmacy, Inc. (“CVS”) for failing to provide her with 22 a suitable seat while operating a cash register. CVS moves for summary judgment in its 23 favor on the merits of Plaintiff’s PAGA claim. See Doc. No. 195. Plaintiff filed a 24 response in opposition to the motion, to which CVS replied. See Doc. Nos. 200, 202, 25 203. The Court granted the parties leave to file supporting documents under seal, and 26 permitted Plaintiff to file a sur-reply in support of her opposition to CVS’s motion. See 27 Doc. Nos. 210, 212-15. In addition, Plaintiff has filed supplemental declarations in 28 support of her opposition, to which CVS objects on various grounds. See Doc. Nos. 227, 1 09cv2051-MMA (KSC) Dockets.Justia.com 1 230. For the reasons set forth below, the Court DENIES CVS’s motion for summary 2 judgment. 3 BACKGROUND1 4 Plaintiff Nykeya Kilby is a former employee of CVS, where she worked as a 5 Customer Service Representative (“Clerk/Cashier” hereafter) for approximately eight 6 months in 2008. In this capacity, Plaintiff operated a cash register, straightened and 7 stocked shelves, organized candy and batteries in front of the sales counter, stocked the 8 tobacco section behind the sales counter, cleaned the register, vacuumed, gathered 9 shopping carts and hand baskets, and handled trash. 10 CVS is committed to providing excellent service to its customers. In CVS’s 11 business judgment, and for reasons which Plaintiff disputes, CVS contends that 12 permitting a Clerk/Cashier to sit while performing his or her job duties would result in 13 inefficiency, lost time, and poor customer service. Accordingly, when interviewing for 14 the job, Plaintiff’s interviewer explained the expectation that she stand while working, 15 including while operating the cash register. Once hired, Plaintiff viewed training videos 16 which reinforced the expectation that Clerk/Cashiers are expected to do a variety of work 17 while standing. Plaintiff stood while she performed her job duties. 18 Plaintiff spent approximately ninety percent of her time operating the cash register. 19 Related duties such as “scanning, reaching, lifting, bagging, and processing customer 20 payments” may be performed while seated.2 Doc. No. 202-1 at 64.3 CVS did not provide 21 Plaintiff with a seat to use while operating the cash register. Therefore, she stood. 22 23 24 25 26 27 28 1 These facts are taken from CVS’s Statement of Undisputed Facts, Plaintiff’s response thereto, CVS’s reply to Plaintiff’s response, and supporting evidence. Where a material fact is in dispute, it will be so noted. Facts immaterial to the disposition of the motion are not recited herein. 2 CVS agrees that these duties may be performed seated “on occasion,” but contends that this fact is immaterial. Doc. No. 202-1 at 64. The Court disagrees. 3 Citations to electronically-filed documents refer to the pagination assigned by the CM/ECF system. 2 09cv2051-MMA (KSC) 1 Plaintiff premises this action on the contention that CVS should have provided her 2 and other current or former employees with a seat while operating the cash register. 3 Plaintiff alleges that by failing to do so, CVS violated California Labor Code § 1198, 4 which makes it illegal to employ a person under conditions of labor prohibited by an 5 applicable Wage Order issued by the Industrial Welfare Commission (“IWC”).4 Section 6 14(A) of Wage Order 7-2001 (referred to hereafter as “Section 14(A)”), which applies to 7 employers such as CVS, provides that “[a]ll working employees shall be provided with 8 suitable seats when the nature of the work reasonably permits the use of seats.” Cal. 9 Code Regs. Tit. 8 § 11070(14)(A). Plaintiff brings her PAGA claim in a representative 10 capacity as an “aggrieved employee on behalf of . . . herself and other current or former 11 employees” of CVS.5 Cal. Lab. Code § 2699(a). 12 CVS previously moved for summary judgment at to Plaintiff’s PAGA claim, 13 arguing that the “nature of the work” she performed as a Clerk/Cashier did not reasonably 14 permit the use of a seat. The Court granted summary judgment in favor of CVS, 15 concluding that “[i]f, as here, the majority of an employee’s assigned duties must 16 physically be performed while standing, and the employer expects and trains the 17 employee to stand while doing so, the ‘nature of the work’ requires standing,” such that 18 the employer need not provide a suitable seat to the employee while working. Doc. No. 19 136 at 10. Plaintiff appealed, and the United States Court of Appeals for the Ninth 20 21 4 22 23 24 25 26 27 28 Section 1198 provides that “[t]he maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” Cal. Lab. Code § 1198. Because Section 1198 does not contain its own civil penalty provision, Plaintiff seeks to recover the “default” penalties set forth in Section 2699(f) of PAGA. 5 Plaintiff also brings her claim on behalf of a putative class of “[a]ll persons who, during the applicable statute of limitations, were employed by CVS as Customer Service Representatives, Cashiers, Clerks, or in a similar position that regularly involves or did involve the operation of a cash register, and were not provided with a seat.” Doc. No. 6 at 3 ¶ 6. To date, Plaintiff has not renewed her motion for class certification subsequent to the remand of this action from the United States Court of Appeals for the Ninth Circuit. Accordingly, the action currently proceeds on a representative basis. 3 09cv2051-MMA (KSC) 1 Circuit certified questions to the California Supreme Court concerning the correct 2 interpretation of Section 14 of the Wage Order. See Doc. No. 147. In so doing, the 3 circuit court noted that the California Supreme Court’s ultimate interpretation of Section 4 14 would potentially have “far-reaching effects on California’s citizens and businesses.” 5 Id. at 10. 6 7 8 9 10 11 12 The California Supreme Court heeded the Ninth Circuit’s request, interpreting Section 14(A) as follows: The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for. 13 Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1, 8 (2016). The court also identified the 14 relevant factors to consider when determining whether “the nature of the work reasonably 15 permits the use of seats” under Section (14)(A): 16 17 18 19 20 21 22 23 24 25 26 27 28 When evaluating whether the “nature of the work reasonably permits the use of seats,” courts must examine subsets of an employee’s total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of locationspecific tasks while seated. Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles, or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently. A focus on actual work done and tasks grouped by their location alleviates the problems created by both plaintiffs’ and defendants’ approaches. An employee may be entitled to a seat to perform tasks at a particular location even if his job duties include other standing tasks, so long as provision of a seat would not interfere with performance of standing tasks. At the same time, consideration of all the actual tasks performed at a particular location would allow the court to consider the relationship between the standing and sitting tasks done there, the frequency and duration of those tasks with respect to each other, and whether sitting, or the frequency of transition between sitting 4 09cv2051-MMA (KSC) 1 2 and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance. 3 Id. at 18. The court concluded by holding that “[a]n employer seeking to be excused 4 from the requirement bears the burden of showing compliance is infeasible because no 5 suitable seating exists.” Id. at 24. 6 Upon receipt of the answers to its certified questions, the Ninth Circuit reversed 7 and remanded this action, with an instruction “to the district court to reconsider [its 8 previous rulings] in light of the California Supreme Court’s opinion in Kilby v. 9 Pharmacy, Inc., 368 P.3d 554 (Cal. 2016).” Doc. No. 155 at 2. The Court must now do 10 so, as CVS once again moves for summary judgment as to Plaintiff’s PAGA claim. CVS 11 argues that the California Supreme Court’s interpretation of the suitable seating 12 requirement confirms that the nature of Plaintiff’s work at CVS did not reasonably permit 13 the use of seat. Plaintiff opposes the motion, arguing that the Kilby court’s interpretation 14 of Section 14(A) precludes summary judgment on her PAGA claim. 15 DISCUSSION 16 1. Legal Standard 17 “A party may move for summary judgment, identifying each claim or defense – or 18 the part of each claim or defense – on which summary judgment is sought. The court 19 shall grant summary judgment if the movant shows that there is no genuine dispute as to 20 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 21 P. 56(a). A fact is material if it could affect the outcome of the suit under applicable law. 22 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A dispute about a 23 material fact is genuine if there is sufficient evidence for a reasonable jury to return a 24 verdict for the non-moving party. Id. at 248. 25 The party seeking summary judgment bears the initial burden of establishing the 26 basis of its motion and of identifying the portions of the declarations, pleadings, and 27 discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. 28 Catrett, 477 U.S. 317, 323 (1986). If the moving party does not bear the burden of proof 5 09cv2051-MMA (KSC) 1 at trial, he may discharge his burden of showing no genuine issue of material fact remains 2 by demonstrating that “there is an absence of evidence to support the nonmoving party’s 3 case.” Id. at 325. The burden then shifts to the opposing party to provide admissible 4 evidence beyond the pleadings to show that summary judgment is not appropriate. Id. at 5 324. The party opposing summary judgment cannot “rest upon the mere allegations or 6 denials of [its] pleading but must instead produce evidence that sets forth specific facts 7 showing that there is a genuine issue for trial.” Estate of Tucker v. Interscope Records, 8 515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) (internal quotation 9 marks omitted). 10 2. Evidentiary Objections 11 As an initial matter, the parties have raised various evidentiary objections.6 The 12 Court addresses each objection in turn. 13 a) CVS’s Objections 14 CVS objects to several categories of evidence submitted by Plaintiff in support of 15 her opposition to CVS’s motion for summary judgment. First, CVS objects to the 16 declarations of Dr. Michael J. O’Neil, a survey design and research consultant, and Dr. 17 Gary M. Bakken, a Certified Professional Ergonomist. Plaintiff proffers the testimony of 18 each individual pursuant to Federal Rule of Evidence 702. Dr. O’Neil presents the results 19 of his survey of a sampling of CVS customers regarding the provision of chairs or stools 20 for certain CVS employees, and draws conclusions therefrom. Dr. Bakken opines on 21 issues related to the feasible use of a seat by CVS Clerk/Cashiers working at the CVS 22 23 24 6 25 26 27 28 CVS has also filed a request for judicial notice in support of its reply brief. See Doc. No. 202-2. The Court DENIES AS MOOT CVS’s request to judicially notice the document attached as Exhibit A to its request, to wit, a copy of Plaintiff/Petitioners’ Opening Brief, filed April 11, 2014 in Kilby v. CVS Pharmacy, Inc., Supreme Court of California, Case No. S215614. The Court finds judicial notice of this document is unnecessary for the instant purposes, as disposition of CVS’s motion for summary judgment is proper without reference to the document. See Ruiz v. City of Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (stating that judicial notice is inappropriate where the facts to be noticed are not relevant to the disposition of the issues before the court). 6 09cv2051-MMA (KSC) 1 location where Plaintiff was previously employed. CVS contends that Plaintiff failed to 2 disclose the identity of these retained experts, and therefore the Court should preclude her 3 from relying upon their testimony. 4 Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of the opinions of 5 expert witnesses. It provides that “a party must disclose to the other parties the identity 6 of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 7 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). With respect to the timing of expert 8 disclosures, as relevant here, “[a] party must make these disclosures at the times and in 9 the sequence that the court orders. Absent a stipulation or a court order, the disclosures 10 must be made . . . at least 90 days before the date set for trial or for the case to be ready 11 for trial.” Fed. R. Civ. P. 26(a)(2)(D)(i). Subsequent to remand, the parties have engaged 12 in fact and class discovery only. The Court has not set any deadlines regarding expert 13 discovery. There is no expert disclosure deadline currently set in this case. Nor has the 14 Court set a trial date. Plaintiff’s disclosure is not untimely under the rules. Furthermore, 15 CVS will have ample opportunity to depose Plaintiff’s experts prior to trial, and to make 16 a determination regarding its own use of experts accordingly. 17 CVS also objects to the substance of the testimony proffered by Drs. Bakken and 18 O’Neil. CVS argues that Dr. Bakken improperly opines on a question of law, and Dr. 19 O’Neil bases his testimony on an unreliable survey, such that their respective testimony is 20 inadmissible. 21 Federal Rule of Evidence 702 provides that expert opinion evidence is admissible 22 if: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier 23 of fact to understand the evidence or to determine a fact in issue; (b) the testimony is 24 based on sufficient facts or data; (c) the testimony is the product of reliable principles and 25 methods; and (d) the expert has reliably applied the principles and methods to the facts of 26 the case.” Fed. R. Evid. 702. 27 The Kilby court made clear that whether the nature of an employee’s work 28 reasonably permits the use of a seat is a fact-based inquiry. See Kilby, 63 Cal. 4th at 207 09cv2051-MMA (KSC) 1 21 (“For each location where seating may be sought, the totality of the circumstances test 2 simply recognizes that numerous factors, such as the frequency and duration of tasks, as 3 well as the feasibility and practicability of providing seating, may play a role in the 4 ultimate conclusion. The weight given to any relevant factor will depend upon the 5 attendant circumstances.”). As such, Dr. Bakken offers an expert opinion regarding 6 factual issues in this case. This is permissible under Rule 702. 7 With respect to Dr. O’Neill, CVS has not demonstrated that his survey design is so 8 unreliable as to render his opinion inadmissible. Rather, CVS’s objection goes to the 9 weight a factfinder should give to his testimony when balancing the evidence in this case. 10 “Challenges that go to the weight of the evidence are within the province of a fact finder, 11 not a trial court judge. A district court should not make credibility determinations that 12 are reserved for the jury.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 13 (9th Cir. 2014). Accordingly, the Court OVERRULES CVS’s objections to the 14 declarations of Drs. Bakken and O’Neil. 15 CVS also objects to the declarations of eight current or former CVS 16 Clerk/Cashiers, each of whom attests to operating a cash register while seated.7 CVS 17 argues that the declarations are irrelevant, given that these individuals are “disabled” and 18 “do not purport to have performed their duties under identical (or even similar) 19 circumstances as Plaintiff.” Doc. No. 203 at 5. CVS paints the eight declarations with an 20 inappropriately broad brush. While some of the individuals indicate that they received a 21 seating accommodation from CVS due to disability, the majority of the declarants do not. 22 In any event, as CVS notes, the Kilby court interpreted Section 14(A) as requiring “a seat 23 when the nature of the work reasonably permits it, not when the nature of the worker 24 25 7 26 27 28 CVS also urges the Court to strike certain paragraphs from these declarations as inadmissible hearsay, or on the grounds that the declarant is not qualified to attest to his or her own medical condition or diagnosis. To the extent the specified paragraphs contain inadmissible hearsay statements or improper medical testimony, the Court disregards those statements for purposes of ruling on CVS’s motion for summary judgment. 8 09cv2051-MMA (KSC) 1 does.” Kilby, 63 Cal. 4th at 23. The fact that an individual performed his or her job 2 duties while seated remains relevant to the inquiry, even if the reason why they sat is not 3 relevant. In addition, the majority of the declarants state that they operated front-end 4 cash registers arranged in a “bench” configuration, as Plaintiff did, and spent at least 75% 5 of their time working at the cash register. Each of the declarants operated the cash 6 register from a seated position at some time during their employment with CVS. 7 Whether Plaintiff ultimately proves her case at trial through the use of representative 8 evidence, or direct evidence as to each individual aggrieved employee, the testimony of 9 other CVS Clerk/Cashiers who qualify as aggrieved employees is clearly relevant to 10 Plaintiff’s representative PAGA claim. Accordingly, the Court OVERRULES CVS’s 11 objection to these eight declarations.8 12 Finally, CVS moves to strike paragraph seven of Plaintiff’s second declaration 13 pursuant to Federal Rule of Evidence 701, in which Plaintiff testifies that “[a] seat would 14 not have interfered in any way with my standing tasks or slowed down my work in any 15 way. It takes almost no time to stand up or sit down from a seat. Also, I have never been 16 injured while doing so.” Doc. No. 200-2 at 3 ¶ 7. CVS argues that Plaintiff’s statements 17 lack foundation and are not based on her own personal knowledge, as she also testified 18 that she never performed her work at CVS while seated. The Court DENIES CVS’s 19 motion to strike this paragraph from Plaintiff’s second declaration. A non-expert may 20 testify as to opinions “rationally based on the witness’s perception” that are not based on 21 specialized knowledge. Fed. R. Evid. 701. Plaintiff’s testimony, which is based on her 22 personal observations while working at CVS, satisfies this standard. See United States v. 23 Beck, 418 F.3d 1008, 1015 (9th Cir. 2005) (quoting United States v. Allen, 787 F.2d 933, 24 935 (4th Cir. 1986), vacated on other grounds, 479 U.S. 1077 (1987)). 25 26 27 28 8 CVS also objects to seven additional declarations of current or former CVS Clerk/Cashiers, each of whom attests to operating a cash register while seated. CVS argues that the testimony from these individuals is irrelevant and lacks foundation. The Court OVERRULES CVS’s objection to these additional declarations on the same grounds as set forth above. 9 09cv2051-MMA (KSC) 1 b) Plaintiff’s Objection 2 Plaintiff objects to the declaration of Jenice Tom, CVS’s Director of Real Estate 3 Market Research and Analytics. CVS submits Ms. Tom’s declaration in response to Dr. 4 O’Neil’s testimony regarding the impact that providing seats would have on CVS’s sales 5 and customer opinions. Ms. Tom examined Dr. O’Neil’s survey results, and based on 6 those results she opines that the provision of seats to Clerk/Cashiers would potentially 7 result in revenue loss. Plaintiff argues that it is “misleading, speculative, and lacking in 8 foundation for Ms. Tom to testify that providing seats to Clerk/Cashiers would have a 9 negative impact on CVS’s sales.” Doc. No. 212 at 3. Ms. Tom provides a sufficient 10 foundation for her testimony. Plaintiff’s other criticisms go to the weight of the 11 testimony, not its admissibility. Accordingly, the Court OVERRULES Plaintiff’s 12 objection. 13 3. Analysis 14 CVS urges the Court to find, as a matter of law, that the nature of Plaintiff’s work 15 during her employment at CVS as a Clerk/Cashier did not reasonably permit her to use a 16 seat. CVS argues that this conclusion is supported by Plaintiff’s own deposition 17 testimony, as well as CVS’s business judgment that Plaintiff’s duties “were best 18 performed while standing.” Doc. No. 195-1 at 20. In response, Plaintiff argues that the 19 location-centric suitable seating analysis prescribed by the Kilby court precludes 20 summary judgment on her PAGA claim. According to Plaintiff, the Court’s inquiry must 21 focus “on the tasks plaintiff performed at the cash register, not elsewhere in the store[,] . . 22 . most frequently and for the longest time—scanning, bagging, and processing payments . 23 . .” Doc. No. 200 at 12. Plaintiff maintains that she could have performed these tasks 24 while seated. She points to the proffered declarations of current and former CVS 25 employees, all of whom attested to their ability to satisfactorily perform their duties at the 26 cash register while seated, as well as the testimony of her retained experts. Plaintiff 27 argues that the physical workspace at her CVS location and others like it could have 28 10 09cv2051-MMA (KSC) 1 accommodated a seat, and that CVS has failed to meet its burden of demonstrating that 2 no suitable seat was available to her or its other employees. 3 Applying the California Supreme Court’s interpretation of Section 14(A) and 4 considering the evidence submitted by the parties, the Court concludes that a triable issue 5 of fact exists as to whether the nature of the work performed by Plaintiff and other CVS 6 Clerk/Cashiers while operating a front-end cash register reasonably permits the use of 7 seats. As the Kilby court explained, “[i]f the tasks being performed at a given location 8 reasonably permit sitting, and provision of a seat would not interfere with performance of 9 any other tasks that may require standing, a seat is called for.” Kilby, 63 Cal. 4th at 8. 10 The Kilby court further instructed that “[a]n employer’s business judgment and the 11 physical layout of the workplace are relevant but not dispositive factors.” Id. 12 According to Plaintiff, she “could have performed the scanning and bagging and 13 processing transactions better sitting on a stool.” Doc. No. 195-4 at 61. Plaintiff 14 provides testimony from current and former CVS employees who operated front-end cash 15 registers in a “bench” configuration, indicating the feasibility of completing “customer 16 transactions from a seated position, including scanning merchandise, bagging the items, 17 and accepting the payments,” Doc. No. 200-7 at 1 ¶ 6; the ability to hand “the receipt and 18 the bag to the customer while seated,” Doc. No. 200-9 at 1 ¶ 6; the ability “to greet 19 customers coming in the door, assist the next customer in line, . . . make eye contact and 20 answer their questions,” Doc. No. 200-13 at 2 ¶ 4. 21 On the other side of the ledger, CVS offers testimony from its Director of 22 Environmental Health and Safety that “there’s ergonomic issues with the use of seats. It 23 would increase the likelihood of possible lifting injuries, twisting injuries. But then the 24 seats could also be a -- they could block egress routes coming out of the cashier areas,” 25 Doc. No. 195-9 at 11; and the testimony of its Director of Store Operations: 26 27 28 I can’t imagine why you would sit down and how you would be able to sit down and service the customer. First of all, I’m not sure the customer would see you. And you have to be accessible and available for the customer. And during the process of actually checking out a customer, when you think about 11 09cv2051-MMA (KSC) 1 2 3 that motion -- I kind of laid out for you a couple of different cashiering options, the bench, the pass through -- the movement of that and the handling of the product, you're safer doing that in an upright position versus sitting down. 4 5 Doc. No. 195-10 at 15. 6 In sum, “[w]hether the nature of the work reasonably permits sitting is a question 7 to be determined objectively based on the totality of the circumstances.” Kilby, 63 Cal. 8 4th at 8. Factual issues prohibit the Court from making this determination as a matter of 9 law. Ultimately, CVS may be able to demonstrate that “compliance [with Section 14(A) 10 is infeasible because no suitable seating exists.” Id. at 24. However, CVS has not yet 11 done so. As such, summary judgment is not appropriate. 12 CONCLUSION 13 Based on the foregoing, the Court DENIES CVS’s motion for summary judgment. 14 The Court ORDERS the parties to contact the chambers of the assigned magistrate judge 15 within three (3) business days regarding the scheduling of a mandatory settlement and 16 case management conference as soon as practicable. 17 18 19 20 IT IS SO ORDERED. DATE: May 31, 2018 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 21 22 23 24 25 26 27 28 12 09cv2051-MMA (KSC)
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