Calhoun v. City of San Leandro et al

Northern District of California, cand-4:2015-cv-03600

ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part {{6}} Motion to Dismiss with Leave to Amend.

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1 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 DEANDRE CALHOUN, 5 Case No. 15-cv-03600-YGR Plaintiff, 6 ORDER GRANTING IN PART AND DENYING v. IN PART MOTION TO DISMISS PLAINTIFF'S 7 COMPLAINT, WITH LEAVE TO AMEND CITY OF SAN LEANDRO, ET AL., 8 Re: Dkt. No. 6 Defendants. 9 10 Plaintiff Deandre Calhoun ("Calhoun") filed his action for: (1) violation of his Fourth and 11 Fourteenth Amendment rights1 under 42 U.S.C. section 1983; (2) violation of civil rights under 12 California Civil Code section 52.1 ("the Bane Act"); and (3) false arrest in the Alameda County Northern District of California United States District Court 13 Superior Court on June 11, 2015. Defendant City of San Leandro ("the City") filed its Notice of 14 Removal of the action to this Court on August 6, 2015. (Dkt. No. 1.) 15 The City has now filed its Motion to Dismiss Plaintiff's Complaint and Motion to Strike 16 Punitive Damages Claim Against the City pursuant to Rules 12(b)(6) and 12(f) of the Federal 17 Rules of Civil Procedure on the grounds that plaintiff's complaint fails to allege facts sufficient to 18 state claims upon which relief can be granted. (Dkt. No. 6.) 19 Having carefully considered the papers submitted and the pleadings in this action, and for 20 the reasons set forth below, the Court hereby GRANTS IN PART AND DENIES IN PART the Motion 21 to Dismiss, with leave to amend as stated herein.2 While Calhoun alleges facts to support a 22 section 1983 claim for violation of the Fourth Amendment rights against unreasonable search and 23 seizure, he has failed to allege basis for municipal liability against the City on that claim. He also 24 1 Plaintiff concedes that his alleged claim for Fifth Amendment violation is not sufficiently 25 pleaded and does not seek leave to amend. (See Oppo., Dkt. No. 7, at 5:4-5.) He likewise concedes that his prayer for punitive damages was improper. (Id. at 11:12-13.) The Court 26 therefore ORDERS those portions of the complaint are DISMISSED. 2 27 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds this motion appropriate for decision without oral argument. Accordingly, the Court 28 VACATES the hearing set for September 29, 2015. 1 1 failed to allege a viable basis for a section 1983 claim based upon a violation of the Fourteenth 2 Amendment. Likewise, while he has alleged facts to establish the elements of his Bane Act and 3 false arrest claims, he has not alleged a cognizable basis for direct liability against the City, and 4 has not alleged with sufficient clarity facts to support the City's vicarious liability based upon the 5 conduct of the police officers currently identified as "Does." 6 I. SUMMARY OF ALLEGATIONS 7 Calhoun alleges that, on January 20, 2015, he was driving a car in San Leandro and was 8 struck by another motorist, causing damage to the vehicle he was driving. (Complaint ¶ 7.) After 9 the accident, he and the other driver lawfully parked their vehicles on a residential street, and set 10 about exchanging identification and insurance information, but did not call the police. (Id. at ¶ 8.) 11 As Calhoun and the other driver were exchanging information, a City of San Leandro police 12 officer appeared on a motorcycle and approached Calhoun, who explained that there had been an Northern District of California United States District Court 13 accident and he was exchanging information with the other driver. (Id. at ¶ 9.) Shortly thereafter, 14 two other officers arrived and, without further comment or request for Calhoun's identification, 15 declared that Calhoun was actually "Brian Jenkins." (Id.) The officers detained and handcuffed 16 Calhoun. (Id.) Calhoun thereafter produced identification from his pocket, while still handcuffed, 17 and gave it to the officers. (Id. at ¶ 10.) Despite Calhoun's explanation that he was not "Brian 18 Jenkins," and even though the officers had no warrant or authorization from Calhoun, the officers 19 conducted a search of Calhoun's car, and "snapped every cigarette in a pack of cigarettes they 20 found in the car." (Id. at ¶ 11.) After about thirty minutes, the police officers determined that 21 plaintiff was Deandre Calhoun, at which point he was released from handcuffs. (Id. at ¶ 12.) 22 Based on these factual allegations, Calhoun asserts three causes of action against "all 23 Defendants," identified as: (i) the City of San Leandro; (ii) the City of San Leandro Police 24 Department;3 (iii) Does 1 to 10, who are officers and/or employees thereof; and (iv) Does 11 to 30. 25 (Complaint ¶¶ 9-12.) 26 3 27 A police department is a municipal department that is not a separate "person" capable of being sued. See Vance v. County of Santa Clara, 928 F. Supp 993, 996 (N.D. Cal. 1996) (under 28 section 1983, the term "persons" does not encompass municipal departments). 2 1 1 II. APPLICABLE STANDARD 2 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 3 the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199–1200 (9th Cir. 2003). "Dismissal can be 4 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a 5 cognizable legal theory." Balistreri v. Pacifica Police Dep't 901 F.2d 696, 699 (9th Cir. 1990). 6 All allegations of material fact are taken as true and construed in the light most favorable to the 7 plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To survive a 8 motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a 9 claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). This "facial plausibility" standard requires 11 the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted 12 unlawfully." Iqbal, 556 U.S. at 678. While courts do not require "heightened fact pleading of Northern District of California United States District Court 13 specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative 14 level." Twombly, 550 U.S. at 555. 15 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 16 court must assume that the plaintiff's allegations are true and must draw all reasonable inferences 17 in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 18 However, the court is not required to accept as true "allegations that are merely conclusory, 19 unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 20 F.3d 1049, 1055 (9th Cir. 2008). 21 III. DISCUSSION 22 A. First Claim for Relief Under Section 1983 23 To state a claim under section 1983, a complaint must allege that a person acting under 24 color of state law committed the conduct at issue and such conduct deprived the plaintiff of a right, 25 privilege, or immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 26 844 F.2d 628, 632-633 (9th Cir. 1988). "Section 1983 'is not itself a source of substantive rights,' 27 but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. 28 Oliver, 510 U.S. 266, 271 (1994). "The first step in any such claim is to identify the specific 3 1 1 constitutional right allegedly infringed." Id. Further, "Section 1983 creates a cause of action 2 based on personal liability and predicated upon fault; thus, liability does not attach unless the 3 individual defendant caused or participated in a constitutional deprivation." Vance v. Peters, 97 4 F.3d 987, 991 (9th Cir. 1996); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Calhoun 5 asserts this claim against "all defendants" based upon the Fourth, Fifth, and Fourteenth 6 Amendments. 7 1. Claim Against Municipal Entity 8 The City argues that Calhoun has failed to allege a claim against it as a municipal entity, 9 which cannot be held vicariously liable for the acts of its employees. Calhoun opposes, arguing 10 that municipal entities can be liable where the action alleged to be unconstitutional is done 11 pursuant to a governmental policy or custom under Monell v. New York City Dept. of Social 12 Services, 436 U.S. 658, 691 (1978). Northern District of California United States District Court 13 As a general statement, Calhoun's argument is correct. Under 42 U.S.C. section 1983, a 14 public entity "cannot be held liable solely because it employs a tortfeasor." Monell v Dep't of 15 Social Services, 436 U.S. 658, 691 (1978). Instead, a claim for section 1983 liability against a 16 municipality under Monell may be stated in one of three circumstances: (1) when official policies 17 or established customs inflict a constitutional injury; (2) when omissions or failures to act amount 18 to a local government policy of "deliberate indifference" to constitutional rights; or (3) when a 19 local government official with final policy-making authority ratifies a subordinate's 20 unconstitutional conduct. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 21 2010) (synthesizing authorities) see also AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 22 640 (9th Cir. 2012) (holding that "plausible facts supporting a policy or custom...could cure[] the 23 deficiency in [a] Monell claim.") 24 The Court finds Calhoun has not alleged facts to fit within any of these permissible bases 25 for municipal liability. Instead, Calhoun merely alleged that: 26 In committing the acts complained of herein, each Defendant acted as the 27 authorized agent, employee, and/or representative of each other Defendant. Each act of each Defendants [sic] complained of herein was committed within the 28 scope of said agency, employment, or other representation, and each act was 4 1 ratified by each other Defendant. 1 (Complaint ¶ 5.) Further, while the complaint recites the word "ratified," it does not state facts to 2 support a determination that an official with final policy-making authority ratified the alleged 3 unconstitutional conduct. Consequently, the allegations are insufficient to state a basis for 4 municipal liability under Monell. 5 This failure alone is sufficient reason to dismiss the section 1983 claim. The motion to 6 dismiss the section 1983 claim against the City is GRANTED WITH LEAVE TO AMEND. However, 7 because Calhoun is given leave to amend, the Court turns to the merits of the City's additional 8 arguments. 9 2. Fourth Amendment Violation 10 The City next argues that Calhoun has not alleged facts sufficient to establish a Fourth 11 Amendment basis for his section 1983 claim. The Fourth Amendment protects against 12 Northern District of California United States District Court unreasonable searches and seizures. County of Sacramento v. Lewis, 523 U.S. 833, 842 (1997), 13 Graham v. Connor, 490 U.S. 386, 394 (1989). To determine whether an officer's search or 14 seizure was reasonable under the Fourth Amendment, the court must look to the totality of the 15 circumstances. Graham, 490 U.S. at 396. The City argues that Calhoun has not alleged facts 16 indicating that any force was used against him, or that the search of his vehicle was unreasonable. 17 The City's argument does not address the sufficiency of Calhoun's allegations of a seizure or 18 deprivation of his freedom of movement. 19 A seizure is "a governmental termination of freedom of movement through means 20 intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 596–97 (1989). Calhoun does 21 allege a seizure in that he was detained, handcuffed, and made to sit on the sidewalk by the police 22 officers. (Complaint ¶¶ 9, 16.) He also alleges that his person, his vehicle, and his possessions 23 were thoroughly searched by the Doe officers "illegally and without authorization or warrant." 24 (Id., ¶ 16.) The Court cannot determine, based on the allegations of the complaint, that the search 25 and seizure alleged here were reasonable as a matter of law. Thus, the Court does not agree that 26 Calhoun's allegations are insufficient to state a Fourth Amendment violation, although the 27 complaint lacks clarity in stating which officers Calhoun alleges committed the acts alleged. 28 5 1 1 3. Fourteenth Amendment Violation 2 The City argues that Calhoun does not state a section 1983 claim under the Fourteenth 3 Amendment because the nature of the rights Calhoun claims were infringed is completely covered 4 by the Fourth Amendment, and therefore his claim is limited to the Fourth Amendment basis. 5 Calhoun alleges Fourteenth Amendment guarantees in conjunction with both his Fifth Amendment 6 due process allegations and his Fourth Amendment right to be free from excessive and 7 unreasonable force. (Complaint ¶¶ 15(b), (c).) The City argues that, because the Fourth 8 Amendment provides an explicit textual source of protection against the unlawful searches and 9 seizures alleged (and the Fifth Amendment basis has been dropped), all of Calhoun's claims arise 10 under the Fourth Amendment only, not the more generalized due process protections of the 11 Fourteenth Amendment. 12 Though "a number of the procedural protections contained in the Bill of Rights were made Northern District of California United States District Court 13 applicable to the States by the Fourteenth Amendment…[w]here a particular Amendment 14 'provides an explicit textual source of constitutional protection' against a particular sort of 15 government behavior," the section 1983 claim must be brought and analyzed under that more 16 specific provision. Albright v. Oliver, 510 U.S. 266, 272-73 (1994) (quoting Graham, 490 U.S. at 17 395).) Calhoun has conceded that his Fifth Amendment claim should be dismissed. He does not 18 allege facts regarding any use of excessive force, but only alleges facts regarding unlawful 19 searches and seizures. Calhoun nevertheless contends that his separate Fourteenth Amendment 20 due process clause basis for the section 1983 claim is viable, citing Graham, supra, and Bell v. 21 Wolfish, 441 U.S. 520, 559 (1979). 22 The kind of claim carved out by the Supreme Court in Graham (and Wolfish) as falling 23 under the Due Process Clause of the Fourteenth Amendment, rather than the Fourth 24 Amendment—a claim of use of excessive physical force as a form of punishment in the context of 25 pretrial detention—is not alleged here. Graham, 490 U.S. at 395 n. 10 ("Our cases have not 26 resolved the question whether the Fourth Amendment continues to provide individuals with 27 protection against the deliberate use of excessive physical force beyond the point at which arrest 28 ends and pretrial detention begins, and we do not attempt to answer that question today. It is clear, 6 1 1 however, that the Due Process Clause protects a pretrial detainee from the use of excessive force 2 that amounts to punishment.") (citing Bell v. Wolfish, 441 U.S. 520 at 535–539). 3 Calhoun has not alleged a basis for a claim that any of the conduct here took place when he 4 was subjected to a pretrial detention. See Bell, 441 U.S. at 536-37 (internal citations omitted) 5 (pretrial detention is a "judicial determination of probable cause as a prerequisite to [the] extended 6 restraint of [his] liberty following arrest…to ensure his presence at trial."). The nature of the deprivations alleged does not extend beyond unreasonable searches and seizures covered by the 7 Fourth Amendment. The motion to dismiss the section 1983 claim on these grounds is GRANTED 8 WITH LEAVE TO AMEND to allow Calhoun to allege, to the extent he is able, a distinct basis for a 9 Fourteenth Amendment violation. 10 B. Second Claim for Relief Under the Bane Act 11 The Bane Act, California Civil Code section 52.1, provides relief to an individual whose 12 Northern District of California United States District Court exercise or enjoyment of rights secured by the federal or state Constitution, or under federal or 13 state law, has been interfered with by means of threats, intimidation, or coercion. A claim for 14 excessive force in violation of the Fourth Amendment establishes all the elements of a claim under 15 section 52.1. See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir.) cert. denied 16 sub nom. City of Los Angeles, Cal. v. Chaudhry, 135 S.Ct. 295 (2014) ("a successful claim for 17 excessive force under the Fourth Amendment provides the basis for a successful claim under § 18 52.1"); Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013) ("Cameron asserts no California 19 right different from the rights guaranteed under the Fourth Amendment, so the elements of the 20 excessive force claim under § 52.1 are the same as under § 1983"). However, a claim for 21 wrongful arrest or detention, though it inherently involves a certain amount of coercion, does not 22 establish "force, intimidation, or coercion" for purposes of section 52.1 without more. Shoyoye v. 23 Cnty. of Los Angeles, 203 Cal.App.4th 947, 960 (2012) (internal citation omitted). As the Ninth 24 Circuit recently noted, "there is limited Bane Act precedent defining what constitutes 'coercion' 25 independent from that which is inherent in a wrongful arrest, but [Shoyoye] indicates that such 26 conduct must be 'intentionally coercive and wrongful, i.e., a knowing and blameworthy 27 interference with the plaintiffs' constitutional rights.'" Gant v. Cnty. of Los Angeles, 772 F.3d 28 7 1 1 608, 624 (9th Cir. 2014). 2 Here, Calhoun alleges that the Doe officers continued to detain him in handcuffs, and 3 proceeded with a search of his car, despite his presentation of valid identification showing that he 4 was not "Brian Jenkins." (Complaint ¶¶ 10, 11.)4 He alleges that these acts deprived him of his 5 rights to be free of unreasonable searches and seizures, as well as his right to be free from 6 excessive and unreasonable force by police officers. (Id. at ¶ 15.) Calhoun's detention continued 7 despite producing to the Doe officers a California identification card to clarify the mistaken 8 identity. Based upon these allegations, the Court cannot find that, as a matter of law, the 9 allegations are insufficient to state a claim of intentionally coercive conduct under the Bane Act. 10 See Gant, 772 F.3d at 624 (in a case of mistaken identity arrests and detentions, officers' insistent 11 questioning and conduct raised a genuine issue of fact for Bane Act claim as to whether their 12 actions constituted "intentionally coercive" interference with plaintiff's civil rights). Northern District of California United States District Court 13 The City further argues Plaintiff has not stated whether he asserts the claim against the 14 City directly or based on a theory of vicarious liability. The City is immune from direct liability 15 unless provided by statute. Cal. Gov't Code § 815(a); Hoff v. City of Vacaville, 19 Cal.4th 925, 16 932 (1998). Calhoun did not respond to this argument in his opposition. 17 Under California law, police officers do not have statutory immunity from liability for 18 false arrest, and the liability of the public entity that employs the officer arises from section 19 815.2(a), which provides that "[a] public entity is liable for injury proximately caused by an act or 20 omission of an employee of the public entity within the scope of his employment…." Asgari v. 21 City of Los Angeles, 15 Cal.4th 744, 752-53 n. 6 (1997), as modified on denial of reh'g (Mar. 17, 22 1997). Calhoun alleges his claim against "Defendants" generally, and does not name any police 23 4 Calhoun also alleges that he is an African-American male and that the "decision of 24 Defendants to take said actions against Plaintiff was motivated in whole or in part by Plaintiff's 25 race and the color of Plaintiff's skin." (Complaint ¶¶ 7, 21.) Calhoun may be confusing the requirements of a Bane Act claim under section 52.1 with a claim under California Civil Code 26 section 51.7, the Ralph Act, which protects an individual's "right to be free from violence or intimidation because of their race, color, religion, ancestry, national origin," among other 27 enumerated characteristics. See Cal. Civ. Code §§ 51.7, 52(b); Venegas v. Cnty. of Los Angeles, 28 32 Cal. 4th 820, 841-42 (2004) (discussing differences between Bane Act and Ralph Act claims). 8 1 1 officers except as "Doe" defendants. (Complaint ¶ 3.) He alleges that "[e]ach and every 2 Defendant was at all relevant time [sic] the agents and/or employees of other Defendants and acted 3 within the scope of said agency and/or employment." (Id.) As a consequence, the pleading is 4 ambiguous as to whether the City is alleged to be liable vicariously or directly, or both. 5 To the extent the claim is alleged against the City directly, the motion to dismiss is 6 GRANTED WITHOUT LEAVE TO AMEND based upon the statutory immunity in California 7 Government Code section 815(a). However, the motion to dismiss is GRANTED WITH LEAVE TO 8 AMEND to permit Calhoun to clarify whether he alleges vicarious liability against the City based 9 upon the actions of the "Doe" officers, and the factual basis therefor. 10 C. Third Claim for Relief For False Arrest 11 Under California law, the tort of false arrest or false imprisonment is "the unlawful 12 violation of the personal liberty of another." Tekle v. United States, 511 F.3d 839, 854 (9th Cir. Northern District of California United States District Court 13 2007) (citing Cal. Penal Code § 236 and Collins v. City & County of S.F., 50 Cal.App.3d 671 14 (1975)); Moore v. City & Cnty. of San Francisco, 5 Cal. App. 3d 728, 735 (1970) ("[f]alse arrest 15 and false imprisonment are not separate torts"). The elements of a false imprisonment claim are: 16 "(1) the non-consensual, intentional confinement of a person, (2) without lawful privilege, (3) for 17 an appreciable period of time, however brief." Easton v. Sutter Coast Hospital, 80 Cal.App.4th 18 485, 496 (2000). A police officer acting within the scope of his or her authority will not be liable 19 for false arrest if the officer had reasonable cause to believe the arrest was lawful at the time. 20 O'Toole v. Superior Court, 140 Cal.App.4th 488, 511-512 (2006) (citing Penal Code § 847(b)). 21 The City argues that Calhoun has not sufficiently alleged his false arrest claim because he only 22 states that his arrest was wrongful, not that it was without reasonable cause. 23 Calhoun has alleged facts sufficient to state a non-consensual, intentional confinement that 24 was without lawful privilege and for an appreciable time.5 (Complaint, ¶¶ 9-12.) To the extent 25 5 26 In addition, he has alleged that he had a right to be free from "unreasonable searches and seizures," and that he was deprived of that right by defendants "illegally and without authorization 27 or warrant detaining Plaintiff, depriving him of his freedom of movement, and conducting a search 28 of Plaintiff's person, Plaintiff's vehicle, and Plaintiff's possessions" (Complaint ¶ 16.) 9 1 1 that the City asserts that reasonable cause existed for Calhoun's confinement, such argument may 2 be raised as an affirmative defense. See Cervantez v. J. C. Penney Co., 24 Cal. 3d 579, 592 3 (1979), overturned due to legislative action on other grounds ("burden is on the defendant to 4 prove justification for the arrest"); see also Judicial Council of California Civil Jury Instruction 5 1402 (False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause To 6 Arrest). An allegation that the conduct was without reasonable cause, in anticipation of such a 7 defense, is not required for Calhoun to state his claim. 8 As with the claim under Civil Code section 52.1 discussed above, the City also argues that 9 it cannot be directly liable, but only may be vicariously liable based upon the conduct of its 10 employees. As above, the Court agrees that the allegations here are ambiguous as to the basis for 11 the City's liability. To the extent Calhoun seeks to hold the City directly liable, such a claim must 12 be dismissed without leave to amend, since it is barred by statutory immunity. Leave to amend is Northern District of California United States District Court 13 granted to permit Calhoun to allege, if possible, a basis for vicarious liability based upon the 14 conduct of the Doe officers. 15 Accordingly, the City's motion to dismiss the claim for false arrest is GRANTED WITHOUT 16 LEAVE TO AMEND on grounds of statutory immunity in California Government Code section 17 815(a). However, the motion to dismiss is GRANTED WITH LEAVE TO AMEND to permit Calhoun 18 to clarify whether he alleges vicarious liability for false arrest against the City, based upon the 19 actions of the "Doe" officers, and the factual basis therefor. 20 IV. CONCLUSION 21 Based upon the foregoing, the Motion to Dismiss is GRANTED IN PART as follows: 22 (1) Calhoun's claims for punitive damages against the City and for a section 1983 claim 23 based upon the Fifth Amendment are DISMISSED WITHOUT LEAVE TO AMEND; 24 (2) Calhoun's claims for section 1983 liability against the City based upon Monell are 25 DISMISSED WITH LEAVE TO AMEND; 26 (3) Calhoun's claim for section 1983 liability based upon a violation of the Fourteenth 27 Amendment is DISMISSED WITH LEAVE TO AMEND; and 28 (4) Calhoun's claims for direct liability against the City under the Bane Act and for false 10 1 1 arrest are DISMISSED WITHOUT LEAVE TO AMEND based upon governmental immunity. 2 However, to the extent Calhoun can plead a factual basis for vicarious liability arising from the 3 conduct of officers currently named as Does, the claims are DISMISSED WITH LEAVE TO AMEND 4 to allow Calhoun to so allege. 5 Calhoun shall have until October 20, 2015, to file any amended complaint. The City shall 6 have 21 days thereafter to file its response. 7 This terminates Docket No. 6. 8 IT IS SO ORDERED. 9 Dated: September 23, 2015 10 ______________________________________ YVONNE GONZALEZ ROGERS 11 UNITED STATES DISTRICT JUDGE 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11