Bioriginal Food and Science Corporation v. Biotab Nutraceuticals Inc et al

Filing 284

MINUTES OF DEFENDANTS SECOND MOTION FOR PARTIALSUMMARY JUDGMENT (Dkt. No. 146 , filed July 6, 2015) held before Judge Christina A. Snyder: In accordance with the foregoing, defendants motion for partial summary judgment is DENIED in its entirety. (SEE ATTACHED) Court Reporter: Laura Elias. (kss)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-CV-05704-CAS(Ex)

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

Present: The Honorable

Date

‘O’

August 3, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Jeffrey Fillerup

Dr. Dal Singh
Surjit Soni

Proceedings:

I.

DEFENDANTS’ SECOND MOTION FOR PARTIAL
SUMMARY JUDGMENT (Dkt. No. 146, filed July 6, 2015)

INTRODUCTION AND BACKGROUND

On August 7, 2013, plaintiff Bioriginal Food and Science Corporation
(“Bioriginal”) filed this action against defendants Biotab Nutraceuticals, Inc. (“Biotab”);
Global Product Management, Inc.; Gregory Andruk; and Adam Zwicker. In brief,
Bioriginal alleges that defendants ordered specially designed nutritional supplements
from Bioriginal, accepted delivery, then wrongfully refused to pay for the supplements.
The operative Second Amended Complaint (“SAC”), filed on March 26, 2014, asserts
claims for (1) breach of contract, (2) account stated, (3) open book account, (4) goods
provided, and (5) violations of California’s Unfair Competition Law (“UCL”), Cal. Bus.
& Prof. Code § 17200 et seq. Defendants have filed counterclaims for breach of contract
and violations of the UCL. Dkt. No. 30.1
On July 6, 2015, defendants filed the instant motion for partial summary judgment
on all of Bioriginal’s non-UCL claims and defendants’ counterclaims for breach of
contract and misrepresentation. Dkt. No. 146. Bioriginal opposed the motion on July 13,
1

On November 5, 2013, the parties stipulated to dismiss Zwicker. Dkt. No. 11.
Pursuant to another stipulation, defendants dismissed without prejudice an additional
counterclaim for fraudulent misrepresentation. Dkt. No. 34. On June 15, 2015, the Court
denied a motion to modify the scheduling order so as to file additional counterclaims,
including a counterclaim for misrepresentation. Dkt. No. 124.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-CV-05704-CAS(Ex)

August 3, 2015

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

2015, and defendants filed a reply on July 20, 2015. Dkt. Nos. 156, 172. On August 3,
2015, the Court held a hearing on the motion. Having considered the parties’ arguments,
the Court finds and concludes as follows.2
II.

FACTUAL BACKGROUND
A.

Undisputed Facts

Bioriginal alleges that in or about November 2012, it and defendants entered into a
contract by which Bioriginal would develop, manufacture, and sell to defendants two
nutritional supplements, herein referred to as “Eye Softgels” and “Ultra Krill Capsules”
(collectively the “Products”). SAC ¶¶ 7–8, 14. Bioriginal alleges that defendants agreed
to pay for the development and manufacturing of the Products and purchase from
Bioriginal (1) “a minimum quantity of 12 million units of Eye Softgels at the price of
$0.125 dollars per unit”; and (2) “a minimum of 15 million units of Ultra Krill Capsules
at the price of $0.24 per capsule.” Id. ¶ 14.
On October 16, 2012, Biotab placed a purchase order for Eye Softgels. See Dkt.
No. 146-2 (Soni Decl.) Ex. A at 1. This purchase order states: “As the development
process progresses additional information—formula, price (finalized), availability
(finalized), dosage, and other critical information—will be included.” Id. On October
17, 2012, Biotab placed a purchase order for Ultra Kill Capsules, which reads in part:
“Formula developed by Capsugel and Product Development Center, Boston.” Id. at 2.
That order then states: “As the development process is finalized, additional
information—formula number, dosage, and other critical information—will be included.”
Id.3

2

The Court is skeptical of defendants’ assertion that the Court relieved them of
their obligation to meet and confer regarding any contemplated summary judgment
motion under Local Rule 7-3. Nevertheless, the Court declines Bioriginal’s invitation to
deny the instant motion on the basis of any failure to meet and confer.
3

To the extent the Court cites to the objected-to evidence, Bioriginal’s conclusory
evidentiary objections, Dkt. No. 156-2, are OVERRULED. With regard to the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-CV-05704-CAS(Ex)

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.
B.

Date

‘O’

August 3, 2015

Additional Background Regarding the Products’ Formulas

It is undisputed that Don Stables (“Stables”) worked with defendants in some
capacity that involved communicating with Bioriginal about formulas for the Products.
Defendants refer to Stables as their “formulation consultant,” and assert that he
“approved formulations submitted by [Bioriginal] in December 2012.” Def.’s Statement
of Undisputed Facts (“DUSF”) ¶ 4. Defendants submit a formula specification for “Ultra
Krill Capsule Serial Number: NPCL 090420,” signed by Stables “for and on behalf of
Biotab Nutraceuticals,” on December 5, 2012. See Soni Decl. ¶ 4 & Ex. B. Biotab’s
Chief Operating Officer, Adam Zwicker (“Zwicker”), declares that he “authorized
Donald Stables’, Biotab’s formulation consultant’s, approval of the draft formulation for
the Ultra Krill capsules in December 2012,” but that “[n]o changes to that formulation
were ever presented to Biotab and Biotab never approved any deviations from that
formulation after December 2012.” Dkt. No. 146-3 (Zwicker Decl.) ¶¶ 1, 3.
Defendants assert that Bioriginal subsequently changed the Product formulas
without receiving defendants’ approval. As evidence of unauthorized changes,
defendants cite Bioriginal’s supplemental response to an interrogatory asking Bioriginal
to identify the manner in which products “differed in any respect [from] the
corresponding formula provided by non-party Don Stables.” See Soni Decl. ¶ 5 & Ex. C
at 7. The cited supplemental response mentions modifications to the Ultra Krill Capsule
formula made in January or February 2013. Id. at 8.4

documents attached to the declaration of Surjit P. Soni, Bioriginal’s authentication
objections lack merit. Moreover, Bioriginal’s hearsay objections fail because the
evidence is either not offered for the truth of the matter asserted, is not an assertion at all,
or falls within a hearsay exception, such as the party-opponent exception.
4

The response also states that the modifications were approved by employees of
Bioriginal and Capsugel, that the “agreement between Bioriginal and the Defendants did
not require Defendants’ approval for modifications to the Ultra Krill Formula,” and that
Bioriginal was “aware of only one production formula for the Eye Softgels.” Soni Decl.
Ex. C at 8–9.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-CV-05704-CAS(Ex)

August 3, 2015

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

Cameron C. Kupper (“Kupper”), Bioriginal’s Vice President of Trading and
Business Development, declares that “Stables and his company Boston Nutraceuticals
were involved as the representatives of Biotab in the negotiation of the Products to
Biotab,” and that Stables “was consulting for Biotab at the time and . . . introduced
Biotab to Bioriginal” in 2012. Dkt. No. 156-4 (Kupper Decl.) ¶¶ 1–4. Kupper also
declares that he “knew that Mr. Stables was working for Biotab . . . from mid-2012
through 2013.” Id. Kupper further states that in late 2012, Bioriginal was working with
defendants and their “representative,” Stables, to “find[] the right formula for” the
Products. Kupper avers that during that time, defendants and Stables “were putting time
pressure on [Bioriginal] to get the products produced and shipped.” Id. ¶ 11. He further
declares: “When changes were made in the formulas, there were communications among
Mr. Stables, Bioriginal and the encapsulators, often telephone calls because of the time
pressure we were under, and either Mr. Stables or Defendants were involved in the
process and one or both of them were aware of the changes.” Id. ¶ 12. Responding to
defendants’ allegations that Bioriginal altered the formulas without defendants’
knowledge or consent, Kupper reiterates that “Stables, who was Defendants’
representative, was informed of any changes in the formulas,” and that the “final products
that were delivered were consistent with the formulas that had been approved by Mr.
Stables, Bioriginal, and the encapsulators.” Kupper adds that neither defendants “nor
their agent Don Stables ever complained at the time of delivery that the products were not
made according to the correct formula or . . . specification.” Id. ¶ 13.
According to Kupper, it was only after Bioriginal “filed this suit in August 2013
that Biotab claimed that the Products were defective.” Id. ¶ 15. Bioriginal’s Vice
President of Finance, Starla Theriault (“Theriault”), also declares that Biotab never
complained about the quality of the products that had been shipped prior to this litigation,
and indeed sought to have more product delivered on credit. Dkt. No. 156-3 (Theriault
Decl.) ¶ 3d.5

5

To the extent the Court cites to Kupper’s declaration, defendants’ evidentiary
objections thereto are OVERRULED. Kupper’s statement that he “was personally
involved in” the relevant negotiations is sufficient to demonstrate personal knowledge,
and defendants’ boilerplate hearsay and improper legal conclusion objections to the cited
paragraphs lack merit. The Court also OVERRULES defendants’ relevancy and personal
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-CV-05704-CAS(Ex)

August 3, 2015

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

In his deposition, Stables stated that he met Biotab officer Zwicker in April 2012.
Dkt. No. 156-5 (Fillerup Decl.) Ex. 10 (Stables Dep.) 36:8-25. Stables testified that he
did not personally enter into an agreement with Biotab, but that his company Boston
Nutraceuticals did enter into a written agreement with Biotab around June 2012, through
which Boston Nutraceuticals was paid $5,000 to $10,000 a month “based on the project.”
Id. 43:20–44:5. Pursuant to this agreement, the first thing Stables did was write
“standard operating procedures” for Biotab’s manufacturing plants and distribution
center. Id. 45:1–46:14. Additionally, Boston Nutraceuticals was tasked with
“formulating or looking at formulations that they had to ensure that they had the correct
dosage level.” Id. 54:15-21. Stables testified that he and persons associated with the
Boston location of non-party Capsugel created the formulas for the Products, which
formulas were set down on paper. Id. 71:20–72:23. Stables also testified that the person
“ultimately responsible for approving the formula” is “always the client,” which in this
case “would have been Biotab.” Id. 76:20–77:7. Stables could not recall when the Eye
Sotftgel formula was finally approved. Id. 77:8-10.6 Stables testified that subsequent to
providing the services discussed above, his separate company Boston BioPharm entered
into an agreement to evaluate the Products disputed in this litigation, under which Stables
and the company are “still providing services.” Id. 51:13–52:10.
C.

Additional Background Regarding the Parties’ Agreement

Kupper declares that, at the time the parties were negotiating the agreement in
question, he and Bioriginal were not aware of false advertising claims that had been made
against Biotab, a settlement Biotab had entered into with the State of California regarding
those claims, or resulting restrictions on Biotab’s marketing. Kupper Decl. ¶¶ 5–7 & Exs.
1, 2. Kupper also states that he and Bioriginal were unaware at the time, but later
learned, that Biotab had a history of failing to pay vendors. See id. ¶ 10. Bioriginal

knowledge objections to the cited paragraph from Theriault’s declaration, as well as other
forms of objection for which defendants simply list an evidentiary rule without offering
any supporting argument.
6

Stables referred to the Eye Softgels as the “NuSyte product.”

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-CV-05704-CAS(Ex)

August 3, 2015

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

submits a declaration from Thomas Connelly, who was employed by Biotab from May
2012 to September 2013 and had previously worked “in the consumer packaging industry
for several decades,” who stated that defendants “ha[ve] a history of stringing suppliers
along and not paying their suppliers,” and that this “way of doing business is the main
reason [he] left [his] employment at Biotab.” Id. Ex. 3. Kupper declares that if he and
Bioriginal were aware of these issues, they “never would have agreed to the terms of the
sale of the Products that [they] agreed to in late 2012.” Id. ¶¶ 8, 10.
Kupper declares that “by mid-2013, Biotab had refused to pay for the products that
Bioriginal had delivered,” that Bioriginal accordingly “discontinued delivering product to
Biotab” and eventually filed this lawsuit. Id. ¶ 15. Kupper avers that bioriginal had to
enter into contracts with third-party vendors in order to complete its part of the sale of the
Products to defendants in a timely manner. Id. ¶ 14. He states that Bioriginal planned to
pay those vendors with funds Biotab was to give Bioriginal in consideration for the
Products, and that because Biotab failed to pay Bioriginal for the delivered products,
“Bioriginal has been forced to use its own funds to pay the third-party vendors” millions
of dollars. Id.
III.

LEGAL STANDARD

Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-CV-05704-CAS(Ex)

August 3, 2015

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Abromson v. Am.
Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).
In light of the evidence presented by the nonmoving party, along with any
undisputed facts, the Court must decide whether the moving party is entitled to judgment
as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the
inferences to be drawn from the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E.
Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving
party is proper when a rational trier of fact would not be able to find for the nonmoving
party on the claims at issue. See Matsushita, 475 U.S. at 587.
IV.

ANALYSIS
A.

Bioriginal’s Claims

As to each of Bioriginal’s claims at issue, defendants argue that there was no
meeting of the minds as to the formulation of the products to be shipped, a material term
of any agreement, so that there is no valid contract for Bioriginal to enforce. Memo.
Supp. Mot. at 4–5. In the alternative, defendants argue that if a contract did form,
Bioriginal materially breached it by changing the formulas without defendants’ approval,
and therefore cannot enforce the contract. Id. at 5–6.
Defendants are not entitled to summary judgment on either theory. As to each of
Bioriginal’s claims, a central premise of defendants’ argument—which Bioriginal
contests—is that defendants’ approval was required for any formula modification. But
the only evidence defendants cite for that proposition is the October purchase orders,
summarized above. See Memo. Supp. Mot. at 4 (“To the extent that Plaintiff contends
that Defendants [sic] approval was not required, that claim is belied by the October
Purchase Orders issued by Defendants.”); Reply at 5 (“Defendants’ approval of the
product formulations was expressly required by the Purchase Orders issued by
Defendants.”); DSUF ¶ 3 (relying only on the October purchase orders for the
proposition that “the formulations for the products would be agreed upon”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-CV-05704-CAS(Ex)

August 3, 2015

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

The purchase orders do not clearly establish that such approval was required. The
Eye Softgel order states: “As the development process progresses additional information
[including] formula . . . and other critical information . . . will be included.” Soni Decl.
Ex. A at 1. Similarly, the Ultra Krill Capsules order states that “[a]s the development
process is finalized additional information [including] formula number . . . and other
critical information . . . will be included.”7 Id. at 2, 4. But neither purchase order states
that any defendant had to approve any formula or formula modification. Because the
evidence on which defendants rely does not show as a matter of law that any
modifications to the formula had to be approved by defendants, defendants are not
entitled to summary judgment on that ground. See Nissan Fire & Marine Ins. Co. v. Fritz
Cos., Inc., 210 F.3d 1099, 1107 (9th Cir. 2000) (“[A]t summary judgment, a nonmoving
party plaintiff has no obligation to produce anything until the moving party defendant has
carried its initial burden of production.”).
But even if the Court were to assume that defendants had to approve any formula
modification, defendants still would not be entitled to summary judgment. Bioriginal
submits declaration testimony to the effect that Stables, acting as defendants’
“representative” and “agent,” was “informed of any changes in the formulas,” and that
the delivered Products were consistent with formulas that had been approved by “Mr.
Stables, Bioriginal, and the encapsulators.” Kupper Decl. ¶ 13. Kupper explains that
Stables and his company had acted as Biotab’s representatives throughout the
negotiations. Id. ¶ 3. Kupper also declares under penalty of perjury (1) that when
changes to the formula were made, there were communications—often telephone
calls—between Stables, Bioriginal and the encapsulators; (2) that either Stables or
defendants were aware of all formula changes; and (3) that Bioriginal accepted delivery
of the Products and did not raise formula or product defect issues until after this lawsuit
was filed several months later. Id. ¶¶ 12, 15. And although defendants submit
declaration testimony from Zwicker stating that Stables was not authorized to approve the
post-December 5, 2012 formula changes, there is no dispute that Stables was authorized
to approve the prior draft formulation. See Zwicker Decl. ¶ 3.

7

The Ultra Krill Capsules purchase order also states: “Formula developed by
Capsugel and Product Development Center, Boston.” Id. at 2, 4.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-CV-05704-CAS(Ex)

August 3, 2015

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.

Because at summary judgment the non-movant’s evidence must be credited and
reasonable inferences drawn in the non-movant’s favor, even if the Court were to reach
the question of whether formula modifications were approved by Bioriginal, that question
would present the disputed factual issues of whether Stables was acting as defendants’
agent with actual or ostensible authority to approve the formula modifications, and in fact
did so. See C.A.R. Transp. Brokerage Co. v. Darden Restaurants, Inc., 213 F.3d 474,
479–80 (9th Cir. 2000) (“An agent’s authority may be implied from the circumstances of
a particular case and may be proved by circumstantial evidence. However, unless only
one conclusion may be drawn, existence of an agency and the extent of an agent’s
authority is a question of fact and should not be decided on summary judgment.”
(citations omitted)); Bell v. Exxon Co., U.S.A., 575 F.2d 714, 715 (9th Cir. 1978)
(reversing grant of summary judgment because “[u]nder California law, the existence of
ostensible authority is a question of fact”); Clarendon Nat’l Ins. Co. v. Ins. Co. of the
West, 442 F. Supp. 2d 914, 936 (E.D. Cal. 2006) (“The existence and scope of an agency
is generally a question of fact, unless the essential facts are undisputed and subject to
only one inference.” (citing Brokaw v. Black-Foxe Military Inst., 37 Cal.2d 274, 278
(1951), and Van’t Rood v. County of Santa Clara, 113 Cal. App. 4th 549, 562 (2003)).
For these reasons, defendants are not entitled to partial summary judgment on
Bioriginal’s claims for breach of contract, account stated, open book account, and goods
provided.
B.

Defendants’ Counterclaim for Breach of Contract

Defendants’ motion for summary judgment on their counterclaim for breach of
contract is based on the same theory as their motion for summary judgment on
Bioriginal’s claims: that Bioriginal was required to obtain defendants’ approval for any
formula modifications, but failed to do so and therefore delivered goods that did not
conform to the originally agreed-upon formula. See Memo. Supp. Mot. at 5–6.
Accordingly, it fails for the reasons explained above.8

8

In their reply brief, defendants appear to raise as additional arguments supporting
their breach of contract counterclaim contentions that the delivered capsules produced a
strong fishy smell, contained unsafe levels of arsenic, and were delaminating. See Am.
Reply at 9–10. Defendants also submit declarations supporting these contentions, again
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-CV-05704-CAS(Ex)

Title

BIORIGINAL FOOD & SCIENCE CORP. v. BIOTAB
NUTRACEUTICALS, INC., ET AL.
C.

Date

‘O’

August 3, 2015

Defendants’ Counterclaim for Misrepresentation

Finally, defendants seek summary judgment on their counterclaim for
misrepresentation. But defendants voluntarily dismissed that counterclaim on April 30,
2014. Dkt. No. 34. On June 15, 2015, the Court denied a motion to modify the
scheduling order so as to permit defendants to file additional counterclaims, including
one for misrepresentation. Dkt. No. 124. Defendants nonetheless argue that they are
entitled to summary judgment on this currently unpleaded claim, citing Federal Rule of
Civil Procedure 15(b), which permits pleadings to be amended during and after trial to
conform to proof. See Reply at 3. But defendants cite no authority for the proposition
that they may seek summary judgment on a claim that has not been pleaded, after being
denied leave to add that claim in a pretrial motion. And even if such a procedure were
proper, defendants’ motion for judgment on the misrepresentation claim is based on the
same theory rejected above. See Memo. Supp. Mot. at 6. Accordingly, defendants’
motion for partial summary judgment on this counterclaim fails as well.
V.

CONCLUSION

In accordance with the foregoing, defendants’ motion for partial summary
judgment is DENIED in its entirety.
IT IS SO ORDERED.
00
Initials of Preparer

:

15

CMJ

for the first time in reply. Because these arguments were raised for the first time in reply,
the Court does not consider them. See Citizens for Free Speech, LLC v. County of
Alameda, 62 F. Supp. 3d 1129, 1132 n.1 (N.D. Cal. 2014) (“The [District] Court does not
consider arguments raised for the first time in a reply brief.” (citing United States v.
Romm, 455 F.3d 990, 997 (9th Cir. 2006), and United States ex rel. Giles v. Sardie, 191
F. Supp. 2d 1117, 1127 (C.D. Cal. 2000))).
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