Roy Rios v. CWGS Enterprises, LLC et al

Filing 24

ORDER by Judge Ronald S.W. Lew: granting 10 MOTION to Remand Case to State Court. Case Remanded to Los Angeles Superior Court, Case Number BC657201. MD JS-6. Case Terminated.; denying as moot 13 MOTION to Change Venue. (shb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROY RIOS, 12 13 Plaintiff, v. 14 CWGS ENTERPRISES, LLC, a Delaware limited liability 15 company; and DOES 1-10 16 inclusive, 17 Defendant. 18 19 20 I. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV 17-03614 RSWL-AFMx ORDER Re: PLAINTIFF’S MOTION TO REMAND [10]; DEFENDANT’S MOTION TO CHANGE VENUE [13] INTRODUCTION Plaintiff Roy Rios (“Plaintiff”) filed this Action 21 in the Superior Court of California for the County of 22 Los Angeles on April 10, 2017. Compl., ECF No. 1-1. 23 Plaintiff alleged that Defendant CWGS Enterprises, 24 LLC’s (“Defendant”) website,, 25 violates California’s Unruh Civil Rights Act because it 26 imposes barriers to access for blind and other 27 visually-impaired individuals. Id. at ¶ 1. Currently 28 before the Court is Plaintiff’s Motion to Remand 1 1 (“Motion” or “Motion to Remand”) this Action back to 2 Los Angeles Superior Court, and Defendant’s Motion to 3 Change Venue to the Northern District of California 4 (“Motion to Change Venue”). See Pl.’s Mot. to Remand 5 (“Mot.”), ECF No. 10; Def.’s Mot. to Change Venue 6 (“Mot. to Change Venue”), ECF No. 13. The Court, 7 having reviewed all papers and arguments submitted 8 pertaining to both Plaintiff’s Motion to Remand and 9 Defendant’s Motion to Change Venue, NOW FINDS AND RULES 10 AS FOLLOWS: the Court GRANTS Plaintiff’s Motion to 11 Remand and DENIES as MOOT Defendant’s Motion to Change 12 Venue. 13 II. BACKGROUND 14 A. Factual Background 15 Plaintiff is permanently blind and uses a screen 16 reader to access the internet and read website content. 17 Compl. ¶ 4. Blind individuals can only access websites 18 by using keyboards with screen-reading software that 19 vocalizes the information. Id. at ¶ 9. However, 20 unless a website is designed to be read by screen21 reading software, visually-impaired individuals cannot 22 access its information. 23 Id. Defendant owns and operates retail store locations 24 around the world, including in California. Id. at ¶ 5. 25 These locations are public accommodations within the 26 definition of Title III of the 1990 Americans with 27 Disabilities Act (“ADA”) and are business 28 establishments within the definition of California 2 1 Civil Code §§ 51 et seq. Id. Defendant’s website, 2, provides access to an array of 3 services such as store locators and product 4 descriptions. 5 Id. Plaintiff alleges that Defendant has denied him and 6 other blind and visually-impaired individuals access to 7 the services and information made available through 8 Id. at ¶ 12. Plaintiff alleges 9 Defendant’s website lacks alternative text, an 10 invisible code embedded beneath a graphic image. 11 at ¶ 14. Id. Without this code, screen readers cannot 12 accurately vocalize a description of the graphic. Id. 13 Additionally, Defendant’s website is riddled with 14 redundant links that go to the same URL address, which 15 result in additional navigation and repetition for 16 keyboard and screen-reader users. Id. Finally, 17 Defendant’s website includes missing form labels. Id. 18 If a form control does not have a proper text label, 19 the function of that form control may not be presented 20 to screen-reader users. 21 Id. Plaintiff filed a lawsuit against Defendant in 22 state court alleging a violation of the Unruh Civil 23 Rights Act, California Civil Code § 51. 24 18. Id. at ¶¶ 17- In his Complaint, Plaintiff seeks a preliminary 25 and permanent injunction requiring Defendant to take 26 the necessary steps to make its website readily 27 accessible to visually-impaired individuals and 28 statutory damages as set forth by California Civil Code 3 1 § 52(a). Id. at 6:11-18. 2 B. Procedural Background 3 On May 5, 2017, Plaintiff filed this Action in the 4 Superior Court of California for the County of Los 5 Angeles [1-1]. On May 12, 2017, Defendant removed the 6 case to this Court on the basis of federal question 7 jurisdiction. Def.’s Ntc. of Removal [1]. On June 12, 8 2017, Plaintiff filed the instant Motion to Remand 9 [10]. Defendant filed its Opposition on June 20, 2017 10 [11] and Plaintiff’s Reply followed on June 27, 2017 11 [12]. On June 30, 2017, Defendant filed a Motion to 12 Change Venue to the Northern District of California 13 [13]. On July 18, 2017 Plaintiff filed his Opposition 14 to Defendant’s Motion to Change Venue [20] and 15 Defendant’s Reply followed on July 25, 2017 [21]. 16 III. DISCUSSION 17 A. Legal Standard 18 Federal courts are of limited jurisdiction, and 19 therefore, a federal court can only adjudicate cases 20 that create a federal question because they “arise 21 under the Constitution, laws, or treaties of the United 22 States,” or those in which the parties have diversity 23 of citizenship. 24 28 U.S.C. §§ 1331, 1332. Federal question jurisdiction exists only where 25 federal law creates the cause of action asserted, where 26 under the artful pleading doctrine one or more state 27 law claims should be re-characterized as federal 28 claims, or where state law claims necessarily turn on 4 1 the construction of a substantial, disputed federal 2 question. Rains v. Criterion Sys., Inc., 80 F.3d 339, 3 343 (9th Cir. 1996)(citing Merrell Dow Pharms. v. 4 Thompson, 478 U.S. 804, 807-10 (1968)). 5 However, the “mere presence of a federal issue in a 6 state cause of action does not automatically confer 7 federal-question jurisdiction.” Wander v. Kaus, 304 8 F.3d 856, 858 (9th Cir. 2002)(citing Merrell Dow, 478 9 U.S. at 808). The federal issue must be a “necessary 10 element” of one of the state law claims. Id. The 11 federal issue must also be “actually disputed and 12 substantial.” Grable & Sons Metal Prods., Inc. v. 13 Darue Eng’g & Mfg, 545 U.S. 308, 314 (2005). 14 Generally, the plaintiff “decide[s] what law he 15 will rely upon . . . and, if he can maintain his claim 16 on both state and federal grounds, he may ignore the 17 federal question and assert only a state law claim and 18 defeat removal.” Sullivan v. First Affiliated Sec., 19 Inc., 813 F.2d 1368, 1373 (9th Cir. 1987)(internal 20 quotation marks and citations omitted). The “burden of 21 establishing jurisdiction falls on the party invoking 22 the removal statute . . . which is strictly construed 23 against removal.” Id. at 1371 (citing Hunter v. United 24 Van Lines, 746 F.2d 635, 639 (9th Cir. 1984), cert. 25 denied, 474 U.S. 863 (1985)(citation omitted)). Courts 26 resolve all ambiguities in favor of remand to state 27 court. Hunter v. Philip Morris USA, 582 F.3d 1039, 28 1042 (9th Cir. 2009). 5 1 B. Analysis 2 There is a presumption against removal and 3 Defendant bears the burden of proving federal question 4 jurisdiction. There are three bases for federal 5 question jurisdiction: (1) where federal law creates 6 the cause of action, (2) where under the artful 7 pleading doctrine a plaintiff’s state law claims should 8 be re-characterized as federal claims, or (3) where one 9 or more state law claims necessarily turn on the 10 construction of a disputed, substantial federal 11 question. 12 13 14 1. Rains, 80 F.3d at 343. Plaintiff’s Request for Judicial Notice is DENIED Plaintiff requests the Court take judicial notice 15 of five Central District of California orders by Judges 16 Kronstadt, Hatter, Carney, and Fitzgerald pursuant to 17 Federal Rules of Evidence 201. 18 Ntc., ECF No. 10-1.1 Pl.’s Req. for Jud. It is unnecessary to take judicial 19 notice of opinions from other courts because this Court 20 can consider other legal authorities without judicially 21 noticing the opinions. McVey v. McVey, 26 F. Supp. 3d 22 1 Plaintiff requests judicial notice be taken 23 the following cases: (1) Cheryl Thurston v. Toys R of orders from Us, Inc., No. 5:16-cv-02672-JAK-AGR (C.D. Cal. Feb. 23, 2017), ECF No. 14; (2) 24 25 26 27 28 Thurston v. Omni Hotels Mgmt. Corp., No. 5:16-cv-02596-TJH-KK (C.D. Cal. May, 19, 2017), ECF No. 15; (3) James Patrick Brown v. BPS Direct, LLC, et al., No. LACV 14-04622 JAK (JEMx)(C.D. Cal. Oct. 6, 2014), ECF No. 30; (4) Penney v. Kohl’s Dep’t Stores, Inc., et al., No. SACV 14-01100-CJC (DFMx)(C.D. Cal. Sept. 23, 2014), ECF No. 12; and (5) Edward Davis v. Orlando Wilshire Invs., Ltd., No. 5:15-cv-01738-MFW-KK (C.D. Cal. Nov. 2, 2015), ECF No. 17. 6 1 980, 984-85 (C.D. Cal. 2014). “Judicial notice of law 2 is outside the scope of Rule 201, and derives from 3 practical considerations and case law that do not rely 4 on Rule 201 or principles of evidence.” Id. at 985 5 (internal quotation marks and citation omitted). While 6 the Court can consider these decisions as non-binding 7 precedent, the Court DENIES Plaintiff’s request for 8 judicial notice of the decisions. BP West Coast Prods. 9 LLC v. May, 347 F. Supp. 2d 898, 901 (D. Nev. 2004). 10 2. 11 “The district courts shall have original Whether Federal Law Creates the Cause of Action 12 jurisdiction of all civil actions arising under the 13 Constitution, laws, or treaties of the United States.” 14 28 U.S.C. § 1331. Defendant first argues that 15 Plaintiff directly alleges a claim under the ADA, 16 giving this Court federal question jurisdiction. 17 Def.’s Opp’n to Pl.’s Mot. to Remand (“Opp’n”) 3:1-5. 18 Defendant argues that because Plaintiff’s Complaint 19 alleges that Defendant’s actions also violate 20 provisions of the ADA, Plaintiff explicitly invokes 21 federal question jurisdiction. Id. Plaintiff argues 22 that he did not allege a violation of the ADA in his 23 Complaint and just because he pointed to the fact that 24 a violation of California’s Unruh Civil Rights Act also 25 constitutes a violation of the ADA, that does not 26 invoke federal question jurisdiction. Mot. 1:6-12, 27 5:5-6. 28 The Ninth Circuit has held that the “mere presence 7 1 of a federal issue in a state cause of action does not 2 automatically confer federal-question jurisdiction.” 3 Wander, 304 F.3d at 858 (quoting Merrell Dow, 478 U.S. 4 at 813). While Defendant is correct that Plaintiff is 5 seeking both injunctive relief and damages, Defendant 6 is incorrect in stating that fact necessarily invokes 7 federal question jurisdiction. Opp’n 8:6-15; see Toys 8 R Us, Inc., No. 5:16-cv-02672-JAK-AGR (finding that the 9 plaintiff’s request for injunctive relief and damages 10 did not necessitate a finding of federal question 11 jurisdiction because “[w]hen a claim can be supported 12 by alternative and independent theories—one of which is 13 a state law theory and one of which is a federal law 14 theory—federal question jurisdiction does not attach 15 because federal law is not a necessary element of the 16 claim”)(internal quotation marks and citations 17 omitted). 18 Plaintiff alleges an ADA claim only so far as it 19 independently constitutes a violation of the California 20 Unruh Civil Rights Act. A reading of Plaintiff’s 21 Complaint and California Civil Code § 51(f) makes this 22 clear.2 This does not constitute an independent claim 23 for relief under the ADA. Plaintiff’s “state law cause 24 of action claim does not ‘arise under federal law’ even 25 though it is premised on a violation of federal law.” 26 2 27 28 California Civil Code § 51(f) states: “[a] violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” 8 1 Wander, 304 F.3d at 859. Therefore, Defendant’s 2 manipulation of the language of Plaintiff’s Complaint 3 is not sufficient to support federal question 4 jurisdiction. 5 While not binding precedent, the ruling in Thurston 6 v. Container Store, Inc., No. 5:16-cv-02658-SVW-DTB, 7 2017 WL 658806 (C.D. Cal. Feb. 16, 2017) mirrors the 8 facts and allegations in this case and this Court finds 9 it persuasive. In Container Store, the plaintiff 10 brought a similar claim regarding website accessibility 11 for visually-impaired individuals, alleged a violation 12 of the Unruh Civil Rights Act, and requested both 13 damages and injunctive relief. Id. at *1-2. The court 14 remanded the action back to state court after 15 concluding that the question of whether there was 16 federal question jurisdiction was ambiguous and all 17 ambiguities should be resolved in favor of remand. Id. 18 at *3. 19 The court similarly remanded an action regarding 20 website accessibility where a plaintiff alleged a 21 violation of the Unruh Civil Rights Act and requested 22 both injunctive relief and damages. Toys R Us, Inc., 23 5:16-cv-02672-JAK-AGR (holding the plaintiff’s claim 24 was not solely based on alleged violations of the ADA 25 because the relief sought is available under California 26 Civil Code § 51(b)). It is clear that Plaintiff did 27 not directly allege a federal cause of action and 28 federal law does not create the cause of action in the 9 1 instant case. Therefore, federal question jurisdiction 2 is not appropriate on this basis. 3 3. 4 Under the artful pleading doctrine, federal Whether the Artful Pleading Doctrine Applies 5 question jurisdiction is also proper when a plaintiff’s 6 state law claims should be re-characterized as federal 7 claims. Rains, 80 F.3d at 344. A plaintiff “may not 8 defeat removal by omitting to plead necessary federal 9 questions in a complaint.” JustMed, Inc. v. Byce, 600 10 F.3d 1118, 1125 (9th Cir. 2010)(internal quotation 11 marks and citations omitted). Courts most frequently 12 deal with artful pleading where state law claims are 13 preempted, or even precluded by federal law, or 14 alternatively, where federal issues are embedded in 15 state law claims. Removal Based on Federal Question 16 Jurisdiction–Removal Based on Artful Pleading, 14B Fed. 17 Prac. & Proc. Juris. § 3722.1 (4th ed.). 18 Here, Defendant does not assert preemption of 19 federal law. This is because it is established that 20 the ADA’s anti-discrimination provision does not 21 preempt California state claims. See City of Los 22 Angeles v. AECOM Servs., Inc., 854 F.3d 1149, 1156 (9th 23 Cir. 2017)(“[t]he ADA expressly disavows preemptive 24 federal occupation of the disability-rights field”). 25 Instead, Defendant argues the Court has 26 jurisdiction under the artful pleading doctrine because 27 Plaintiff has engaged in forum shopping by alleging a 28 violation of the ADA but only naming the Unruh Civil 10 1 Rights Act as a cause of action. Opp’n 6:1-8. 2 Defendant alleges Plaintiff is forum shopping to avoid 3 this District’s ruling in Robles v. Dominos Pizza LLC, 4 No. CV-1606599-SJO-SPX, 2017 WL 1330216 (C.D. Cal. Mar. 5 20, 2017). Id. at 6:10-12. Defendant also points to 6 Plaintiff’s decision not to remand nearly identical 7 actions as evidence that Plaintiff is engaging in forum 8 shopping and declining to remand cases where he prefers 9 the assigned federal judge over the state judge. 10 at 6:20-7:5. Id. These frivolous allegations are 11 inappropriate in the instant Motion and do nothing to 12 convince the Court or bolster Defendant’s contention 13 that there is a basis to find federal question 14 jurisdiction. 15 While Defendant raises the artful pleading 16 doctrine, Defendant fails to provide any evidence or 17 factual support to bolster this contention. “Courts 18 should invoke the doctrine only in limited 19 circumstances as it raises difficult issues of state 20 and federal relationships and often yields 21 unsatisfactory results.” Lippitt v. Raymond James Fin. 22 Servs., Inc., 340 F.3d 1033, 1041 (9th Cir. 2003) 23 (internal quotation marks and citations omitted). The 24 artful pleading doctrine has been used in: (1) complete 25 preemption cases and (2) substantial federal questions 26 cases. Id. Within this second category are cases 27 “where the claim is necessarily federal in character . 28 . . or where the right to relief depends on the 11 1 resolution of a substantial, disputed federal 2 question.” 3 Id. at 1042 (internal citations omitted). As stated above, the ADA does not preempt state law 4 claims regarding discrimination based on a disability. 5 Accordingly, Defendant must prove that Plaintiff’s 6 federal question is necessary, disputed, and 7 substantial to confer federal question jurisdiction. 8 As this is a separate basis to confer federal question 9 jurisdiction, the Court answers this question below. 10 4. Whether One or More State Law Claims 11 Necessarily Turn on a Disputed, Substantial 12 Federal Question 13 Federal question jurisdiction may also be invoked 14 where one or more state law claims necessarily turn on 15 the construction of a disputed, substantial federal 16 question. 17 18 a. Rains, 80 F.3d at 343. Disputed and Substantial Federal Question Federal question jurisdiction may be proper where a 19 “state-law claim necessarily state[s] a federal issue, 20 actually disputed and substantial, which a federal 21 forum may entertain without disturbing a 22 congressionally approved balance of federal and state 23 judicial responsibilities.” Grable & Sons, 545 U.S. at 24 315. 25 Defendant claims that website accessibility is a 26 disputed area of federal law under the ADA and thus any 27 claims arising under website accessibility need to be 28 adjudicated in federal court. 12 Opp’n 3:18-27. 1 Defendant also notes that the Department of Justice 2 (“DOJ”), the federal agency responsible for 3 promulgating regulations under the ADA, has issued 4 opinions requiring certain institutions make their 5 websites compliant, but it has stopped short of 6 promulgating formal regulations. Id. at 4:1-3. 7 Defendant asserts that jurisdiction exists because this 8 federal question is both disputed and substantial and 9 the recent ruling in Dominos Pizza makes clear that the 10 issue of website accessibility is an unresolved issue 11 of federal law. Id. at 5:3-23. Plaintiff argues that 12 the fact that the DOJ or any other federal entity has 13 not laid out specific guidelines regarding website 14 accessibility does not transform all claims under the 15 Unruh Civil Rights Act regarding websites into federal 16 cases. 17 Mot. 10:14-18. Because the DOJ has yet to issue formal 18 regulations, federal courts have interpreted the ADA in 19 different ways regarding website accessibility. 20 Defendant suggests that the ruling in Dominos Pizza 21 mandates this Court’s analysis. It does not. In 22 Dominos Pizza, the plaintiff brought two causes of 23 action under the ADA and two causes of action under 24 California state law claims regarding website 25 accessibility, whereas here, Plaintiff did not allege a 26 federal cause of action. 2017 WL 1330216, at *1. The 27 court there granted the defendant’s motion to dismiss 28 pursuant to the primary jurisdiction doctrine after 13 1 finding that the lack of formal guidance by the DOJ in 2 regards to website accessibility made it difficult to 3 determine what criteria websites and mobile 4 applications must meet. Id. at *7. Dominos Pizza is 5 easily distinguishable from the case at bar. There, 6 the plaintiff filed the case in federal court, directly 7 alleging claims under the ADA. 2017 WL 1330216 at *3. 8 This is vastly different from this case, where 9 Plaintiff filed in state court and only alleged a state 10 cause of action under the Unruh Civil Rights Act. 11 Although certain points of the court’s legal analysis 12 in the Dominos Pizza opinion may be helpful in the 13 determination of this case on the merits, the ruling is 14 not factually similar for the purposes of establishing 15 federal question jurisdiction. 16 Moreover, Dominos Pizza was distinguished by 17 Gorecki v. Hobby Lobby Stores, Inc., CV 17-1131-JFW 18 (SKx), 2017 WL 2957736, at *7 (C.D. Cal. June 15, 19 2017), where the court denied the defendant’s motion to 20 dismiss finding the plaintiff was not seeking a “remedy 21 that adopts a specific rule. Instead, he requests an 22 order requiring [the defendant] to comply with the 23 DOJ’s directive to ensure disabled individuals have as 24 full and equal enjoyment of its website as non-disabled 25 individuals.” The court also found that the DOJ has 26 “repeatedly affirmed that Title III applies to websites 27 that meet the definition of a public accommodation,” 28 thereby calling into question the Dominos Pizza finding 14 1 that this is an unsettled area of federal law. 2 *4. Id. at Defendant relies too heavily on a case that is 3 both factually and legally distinguishable. Moreover, 4 based on the ruling in Gorecki, Defendant has failed to 5 show that website accessibility is a disputed and 6 substantial federal question. 7 8 b. Necessity While the Court finds that Defendant has failed to 9 show there is a disputed and substantial federal 10 question, the Court nevertheless briefly analyzes the 11 necessity requirement for federal question 12 jurisdiction. To invoke federal question jurisdiction, 13 the federal issue must be disputed and substantial, but 14 a plaintiff’s claim must also “necessarily turn[] on 15 the construction” of a federal issue. 16 at 343. Rains, 80 F.3d A federal issue does not confer federal 17 jurisdiction where it is “merely collateral” to a state 18 claim. Jackson v. Yoshinoya America Inc., No. 12-08518 19 MMM (EX), 2013 WL 865596, at *3 (C.D. Cal. Mar. 7, 20 2013)(emphasis in original). Rather, the “question of 21 federal law [must be] a necessary element of one of the 22 well-pleaded state claims.” 23 Rains, 80 F.3d at 345. “When a claim can be supported by alternative and 24 independent theories—one of which is a state law theory 25 and one of which is a federal law theory—federal 26 question jurisdiction does not attach because federal 27 law is not a necessary element of the claim.” 28 346. Id. at Defendant does not argue or address the necessity 15 1 of the ADA claim under the Unruh Civil Rights Act. In 2 Container Store, which has factually similar claims and 3 legal theories as the present case, the court found 4 that the defendant’s possible ADA violation “is only 5 one of two theories of liability presented by the 6 Plaintiff, meaning that the ADA may not be involved at 7 all in the litigation. This would suggest that 8 resolving the federal question is not a necessary 9 element of the Plaintiff’s claim.” 10 *3. 2017 WL 658806, at Similarly, Defendant has not shown that 11 Plaintiff’s cause of action necessarily requires 12 answering a federal question, or that Plaintiff’s 13 claims for relief are solely based on the ADA to 14 satisfy the necessity requirement. 15 5:16-cv-02672-JAK-AGR, at 4. Toys R Us, Inc., Plaintiff has alleged 16 that Defendant’s conduct constitutes a violation of the 17 ADA as well as California’s Unruh Civil Rights Act. 18 However, on its own, that is not sufficient for this 19 Court to conclude that determining whether there is a 20 violation of the ADA is a necessary question to support 21 a finding that there is federal question jurisdiction. 22 Finally, Defendant argues this Court has subject 23 matter jurisdiction based on a separate case involving 24 Defendant in the Northern District of California, Son 25 Kim v. CWI, Inc., et al., No. 4:16-cv-01913-JSW (N.D. 26 Cal. Dec. 12, 2016). The parties entered into a 27 settlement agreement and the court there retained 28 jurisdiction over the parties to enforce the settlement 16 1 agreement. As an initial matter, the Son Kim case does 2 not involve Plaintiff and was not a class-action 3 settlement or a case that is binding on Plaintiff or 4 other individuals not parties to the suit. While the 5 court there retained jurisdiction over the parties, it 6 was only as to those parties and as to that lawsuit. 7 Defendant appears to assert that federal question 8 jurisdiction is appropriate in this case because the 9 court in Son Kim has federal question jurisdiction. 10 However, in Son Kim the plaintiff directly alleged a 11 violation of the ADA. This is distinguishable from 12 this case, and Son Kim has no bearing on this Court’s 13 duty to independently determine whether it has subject 14 matter jurisdiction, which the Court finds it does not. 15 16 IV. CONCLUSION For the reasons set forth above, and because the 17 Court must resolve all ambiguities in favor of remand, 18 the Court GRANTS Plaintiff’s Motion to Remand and 19 Remands this Action back to the Superior Court of 20 California for the County of Los Angeles, Central 21 District, Case No. BC657201. The Court DENIES as MOOT 22 Defendant’s Motion to Change Venue. 23 IT IS SO ORDERED. 24 DATED: August 11, 2017 25 26 s/ RONALD S.W. LEW HONORABLE RONALD S.W. LEW Senior U.S. District Judge 27 28 17

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