Trujillo v. Hernandez et al

Filing 13

ORDER VACATING December 2, 2022 Hearing; FINDINGS and RECOMMENDATIONS re 11 Motion for Default Judgment ; referred to Judge Ana de Alba,signed by Magistrate Judge Barbara A. McAuliffe on 11/18/2022. (14-Day Deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE TRUJILLO,

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Plaintiff,

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Case No. 1:22-cv-00643-ADA-BAM
ORDER VACATING DECEMBER 2, 2022
HEARING

v.
ELVIA HERNANDEZ, individually and
dba TAQUERIA GUADALAJARA; JOSE
OSCAR HERNANDEZ, individually and
dba TAQUERIA GUADALAJARA,

FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT (Doc. 11)
FOURTEEN (14) DAY DEADLINE

Defendants.

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On September 28, 2022, Plaintiff Jose Trujillo (“Plaintiff”) filed the instant motion for

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default judgment against Defendants Elvia Hernandez, individually and dba Taqueria

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Guadalajara, and Jose Oscar Hernandez, individually and dba Taqueria Guadalajara (collectively

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“Defendants”). (Doc. 11.) No opposition has been filed, and the time in which to do so has

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passed. L.R. 230(c). The motion was referred to the undersigned pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302. The Court finds the matter suitable for decision without oral

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argument pursuant to Local Rule 230(g), and the hearing set for December 2, 2022, is HEREBY

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VACATED.

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Having considered the moving papers and the record in this action, and for the reasons

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that follow, the Court RECOMMENDS that Plaintiff’s motion for default judgment be granted in

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part.

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I.

FACTUAL BACKGROUND

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On May 27, 2022, Plaintiff filed this action pursuant to the Americans with Disabilities

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Act of 1990 (“ADA”), 42 U.S.C. § 12181 et seq., California’s Unruh Civil Rights Act,

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California Civil Code § 51, and the California Health and Safety Code, alleging violations at

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Taqueria Guadalajara, located at 700 West Inyo Avenue, Tulare, California 93274 (the

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“Facility”), which is owned, operated and/or leased by Defendants. (Doc. 1, Compl. at ¶¶ 1-2,

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7.)
Plaintiff alleges that he is substantially limited in his ability to walk, uses a wheelchair or

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cane for mobility, and is physically disabled under state and federal law. (Id. at ¶ 8.) Plaintiff

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asserts that he lives less than fifteen miles from the Facility and visited the Facility on July 29,

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2021, to have dinner. During his visit, Plaintiff encountered barriers that interfered with, if not

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outright denied, his ability to use and enjoy the goods, services, privileges and accommodations

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offered at the Facility. (Id. at ¶10.) Plaintiff’s complaint seeks statutory damages, attorneys’

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fees and costs, injunctive relief and declaratory relief. (Id. at pp. 8-9.)

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Plaintiff served Defendant Elvia Hernandez personally with the summons and complaint

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on June 17, 2022. (Doc. 4.) Plaintiff served Defendant Jose Oscar Hernandez with the

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summons and complaint on June 17, 2022, by substituted service on Elvia Hernandez. (Doc. 5.)

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The Clerk of the Court entered default against Defendants Elvia Hernandez and Jose Oscar

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Hernandez on July 11, 2022. (Doc. 7.)

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Plaintiff filed the instant motion against Defendants on September 28, 2022, seeking

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default judgment in the total sum of $7,249.89 for statutory damages and attorneys’ fees and

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costs, along with declaratory and injunctive relief. (Docs. 11 and 11-1.) Plaintiff served

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Defendants with a copy of the motion by mail. (Doc. 11-7.) No timely opposition was filed. See

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L.R. 230(c) (“Opposition, if any, to the grating of the motion shall be in writing and shall be

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filed and served no later than fourteen (14) days after the motion was filed.”).
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II.

LEGAL STANDARD FOR DEFAULT JUDGMENT

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Pursuant to Federal Rule of Civil Procedure 55(b)(2), a plaintiff can apply to the court for

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a default judgment against a defendant that has failed to plead or otherwise defend against the

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action. Fed. R. Civ. P. 55(b)(2). “Upon default, the well-pleaded allegations of a complaint

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relating to liability are taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Prods.,

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Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-

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Factors which may be considered by courts in exercising discretion as to the entry of a
default judgment include: (1) the possibility of prejudice to the plaintiff; (2) the merits of

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plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in

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the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was

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due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil

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Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.

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1986); PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002).

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III.

DISCUSSION
A. Service of Process

In deciding whether to grant or deny a default judgment, a court should assess the

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adequacy of the service of process on the party against whom default is requested. See, e.g.,

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Trujillo v. Harsarb, Inc., No. 1:21-cv-00342-NONE-SAB, 2021 WL 3783388, at *4 (E.D. Cal.

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Aug. 26, 2021) (“As a general rule, the Court considers the adequacy of service of process before

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evaluating the merits of a motion for default judgment.”); Coach, Inc. v. Diva Shoes &

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Accessories, No. 10-5151 SC, 2011 WL 1483436, at *2 (N.D. Cal. Apr. 19, 2011); Katzakian v.

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Check Resolution Service, Inc., No. 1:10-cv-00716 AWI GSA, 2010 WL 5200912, at *2 (E.D.

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Cal. Dec. 15, 2010).

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Individual Defendants

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Federal Rule of Civil Procedure 4 sets forth the requirements for serving an individual

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within a judicial district of the United States. An individual may be served by:
(1) following state law for serving a summons in an action brought in courts of
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general jurisdiction in the state where the district court is located or where service
is made; or

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(2) doing any of the following:
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(A) delivering a copy of the summons and of the complaint to the individual
personally;

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(B) leaving a copy of each at the individual's dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or

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(C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.

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Fed. R. Civ. P. 4(e). According to the executed returns of service on file, Defendant Elvia

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Hernandez was personally served with the summons and complaint. (Doc. 4.) Defendant Jose

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Oscar Hernandez was served by leaving a copy of the summons and complaint at his dwelling or

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usual place of abode, 238 Martin St., Tulare, California 93724, with co-occupant Elvia

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Hernandez. (Doc. 5.) The summons and complaint were subsequently mailed to Defendant Jose

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Oscar Hernandez at the same address. (Id. at 3.)

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The Court finds that Plaintiff properly served Defendants Elvia Hernandez and Jose
Oscar Hernandez pursuant to Federal Rule of Civil Procedure 4(e).

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B. The Eitel Factors Weigh in Favor of Default Judgment

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1. Possibility of Prejudice to Plaintiff

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The first factor considers whether a plaintiff would suffer prejudice if default judgment is

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not entered. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Generally, where default has been

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entered against a defendant, a plaintiff has no other means by which to recover against that

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defendant. Id.; Moroccanoil, Inc. v. Allstate Beauty Prods., 847 F. Supp. 2d 1197, 1200-01 (C.D.

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Cal. 2012). Here, the Court finds Plaintiff would be prejudiced if default judgment were not

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granted. Default has been entered against Defendants and Plaintiff has no other means to recover

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against them. This factor weighs in favor of default judgment.

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2. Merits of Plaintiff’s Claims and Sufficiency of the Complaint
The second and third Eitel factors, taken together, “require that [the] plaintiff[s] state a

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claim on which [they] may recover.” PepsiCo, Inc., 238 F. Supp. 2d at 1175. Notably a

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“defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.”
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DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007).
In the motion for default judgment, Plaintiff appears to have abandoned his California

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Health and Safety Code claim. (See generally Doc. 11-1.) The Court therefore limits its

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discussion to Plaintiff’s claims arising under the ADA and California’s Unruh Civil Rights Act

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(“Unruh Act’”).

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a. ADA

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“An ADA plaintiff suffers a legally cognizable injury under the ADA if he is

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‘discriminated against on the basis of disability in the full and equal enjoyment of the goods,

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services, [or] facilities ... of any place of public accommodation.’” Chapman v. Pier 1 Imports

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(U.S.) Inc., 631 F.3d 939, 952 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(a)). As relevant here,

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discrimination is defined as “a failure to remove architectural barriers . . . where such removal is

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readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv).

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“To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is

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disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or

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operates a place of public accommodation; and (3) the plaintiff was denied public

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accommodations by the defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481

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F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. §§ 12182(a)-(b)). “To succeed on a ADA claim of

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discrimination on account of one’s disability due to an architectural barrier, the plaintiff must

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also prove that: (1) the existing facility at the defendant’s place of business presents an

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architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily

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achievable.” Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Hawai’i 2000)

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(emphasis in original).

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A private party is only entitled to injunctive relief under Title III of the ADA; however,

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the ADA gives the court discretion to award attorney fees to the prevailing party. Molski, 481

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F.3d at 730.

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Plaintiff alleges that he is substantially limited in his ability to walk and uses a wheelchair

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or cane for mobility and that he therefore is disabled as defined by applicable law. Plaintiff also

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alleges that the Facility is a public accommodation and open to the public. (Compl. at ¶¶ 8-9.)
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Plaintiff further alleges that Defendants own, operate and/or lease the Facility and the

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architectural barriers identified are easily removed without much difficulty or expense. (Id. at ¶¶

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7, 21.)

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Specifically, Plaintiff contends that he lives less than fifteen (15) miles from the Facility

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and visited the Facility on July 29, 2021, to have dinner. (Id. at ¶ 10). On the date of his visit, he

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could not locate any designated accessible parking in the Facility’s parking lot. The lot was full,

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and he ended up having to park on the street, where it was difficult for him to unload due to

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excessive ground slopes. It also was difficult for Plaintiff to maneuver his wheelchair along the

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path of travel to the Facility’s service windows and dining area, because the surface of the route

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was uneven and damaged, with large cracks, height changes, and gaps. (Id.) Additionally, none

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of the dining tables were accessible. They were concrete picnic bench-style tables that had a high

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surface and lacked clear space for a wheelchair. Plaintiff asserts that he could not sit comfortably

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at the table. Plaintiff further asserts that the service window and transaction counter were too

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high and narrow for Plaintiff to use the payment device without assistance. The pick-up window

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and counter were even higher, making it difficult for Plaintiff to retrieve his food. The Facility’s

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menu also was mounted high on the wall above the service windows, with small type, and

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Plaintiff had difficulty seeing it from his wheelchair-seated position. (Id.) Plaintiff asserts that he

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was denied full and equal enjoyment and use of the goods, services, facilities, privileges and

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accommodations of the Facility. (Id. at ¶ 18.)

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These allegations are taken as true due to Defendants’ default, and Plaintiff has met his

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burden of stating a prima facie claim for discrimination under Title III. Plaintiff is thereby

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entitled to injunctive relief for the violations of the ADA.

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b. Unruh Act

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Plaintiff also brings a state law claim for violation of the Unruh Act. A violation of the

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ADA also violates the Unruh Act. Cal. Civ. Code § 51(f). The Unruh Act provides for statutory

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damages of no less than $4,000 for each and every offense, as well as attorney’s fees. Cal. Civ.

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Code § 52(a). A litigant need not prove any actual damages to recover statutory damages of

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$4,000. Molski, 481 F.3d at 731. As Plaintiff’s allegations state a cause of action entitling him to
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relief under the ADA, Plaintiff’s allegations also state a claim entitling him to relief under the

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Unruh Act.

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For the reasons set forth above, the Court finds that the second and third Eitel factors
weigh in favor of default judgment.

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3. The Sum of Money at Stake in the Action

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Under the fourth factor cited in Eitel, “the court must consider the amount of money at

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stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at

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1176; see also Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal.

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2003).

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Here, Plaintiff seeks a single statutory minimum penalty assessment of $4,000.00 pursuant

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to the Unruh Act, along with actual attorneys’ fees and costs incurred in the amount of $3,249.89.

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(Doc. 11-1 at pp. 7-9.) The amount of money at stake, totaling $7,249.89, is relatively small and it

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does not seem unreasonable in light of the allegations contained in the complaint. Accordingly,

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this factor does not weigh against entry of default judgment.

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4. The Possibility of a Dispute Concerning Material Facts
Following the Clerk’s entry of default, the Court may assume the truth of well-pled facts

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in the complaint and, thus, there is no likelihood that any genuine issue of material fact exists.

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Further, Defendants’ failure to file an answer in this case and their failure to file a response to the

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request for entry of default or a response to the instant motion supports the conclusion that the

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possibility of a dispute as to material facts is minimal. See, e.g., Elektra Entm’t Grp. Inc. v.

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Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded

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complaint are taken as true after the court clerk enters default judgment, there is no likelihood that

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any genuine issue of material fact exists.”). This factor therefore weighs in favor of default

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judgment.

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5. Whether the Default Was Due to Excusable Neglect

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The sixth Eitel factor considers the possibility that Defendants’ default resulted from

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excusable neglect. PepsiCo, Inc., 238 F. Supp. 2d at 1177. Courts have found that where a

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defendant was “properly served with the complaint, the notice of entry of default, as well as the
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paper in support of the [default judgment] motion,” there is no evidence of excusable neglect.

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Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 2001).

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Upon review of the record, the Court finds that the default was not the result of excusable

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neglect. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Defendants were properly served with the

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complaint, the request for entry of default, (see Doc. 6-2), and the motion for default judgment,

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which included notification of the Clerk’s entry of default. Despite service with these documents,

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Defendants have not appeared in this action. Thus, the record suggests that Defendants have

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chosen not to participate in this action, and not that the default resulted from any excusable

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neglect. Accordingly, this factor weighs in favor of the entry of a default judgment.

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6. The Strong Policy Favoring Decisions on the Merits
“Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782

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F.2d at 1472. However, district courts have concluded with regularity that this policy, standing

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alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action.

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PepsiCo, Inc., 238 F. Supp. 2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 694 F.

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Supp. 2d 1039, 1061 (N.D. Cal. Mar. 5, 2010). Although the Court is cognizant of the policy

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favoring decisions on the merits, that policy is unavailable here because Defendants have not

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appeared in this action. Accordingly, the Court finds that this factor does not weigh against entry

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of default judgment.

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C. Damages
1. Injunctive Relief
Plaintiff seeks injunctive relief under the ADA for violations alleged in the complaint. In

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particular, Plaintiff seeks an injunction requiring removal of all architectural barriers to Plaintiff’s

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access to the facility. 42 U.S.C. § 12188 provides that “injunctive relief shall include an order to

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alter facilities to make such facilities readily accessible to and usable by individuals with

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disabilities to the extent required” the ADA. 42 U.S.C. § 12188(a)(2). Pursuant to federal and

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state law, Plaintiff is entitled to the removal of those architectural barriers which he encountered

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on his visit to the facility that violated the ADA. Therefore, an injunction should issue requiring

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Defendants to provide accessible parking, an accessible route of travel from the accessible
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parking stall(s) to the Facility service window, an accessible dining table, an accessible portion of

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the service window and transaction counter, and a menu visible from a wheelchair-seated position

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and/or a printed menu that can be handed to customers.

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2. Statutory Damages

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Plaintiff seeks statutory damages in the amount of $4,000.00 as authorized by California

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law. The Unruh Act provides for minimum statutory damages of $4,000 for each violation. Cal.

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Civ. Code § 52(a); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1133 (C.D. Cal. 2005). Since a

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violation of the ADA establishes a violation of the Unruh Act, Plaintiff is entitled to statutory

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damages of $4,000.00.
3. Attorneys’ Fees and Costs

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Plaintiff also seeks an award of attorneys’ fees and costs. Both the ADA and Unruh Act

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authorize the award of attorney's fees and costs for an action. See 42 U.S.C. § 12205; Cal. Civ.

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Code § 52(a). Attorney fee awards are calculated using the lodestar method, which multiplies the

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numbers of hours reasonably spent on the matter with a reasonable hourly rate. Vogel v. Harbor

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Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th Cir. 2018). The district court has the discretion to

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make adjustments to the number of hours claimed or to the lodestar, but is required to provide a

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clear but concise reason for the fee award. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir.

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1992).

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Here, Plaintiff's counsel seeks an award of $2,456.00 in attorneys’ fees, plus $793.89 in

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litigation costs. (Docs. 11-1 at 9; Doc.11-3, Exs. A-C, F to Declaration of Tanya E. Moore

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(“Moore Decl.”.) Specifically, Plaintiff requests: (1) $1,950.00 for 6.5 hours of work expended

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by attorney Tanya E. Moore at an hourly rate of $300; (2) $184.00 for 1.6 hours of work

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expended by paralegal Whitney Law at an hourly rate of $115.00; and (3) $322.00 for 2.8 hours

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of work expended by paralegal Isaac Medrano at an hourly rate of $115.00. (Doc. 11-1 at 9.)

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Hourly Rates

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As indicated, Plaintiff requests an hourly rate of $300.00 for work by attorney Tanya

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Moore and $115.00 for work by paralegals Whitney Law and Isaac Medrano. (Doc. 11-1 at 9.)

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Courts in this district have found these rates reasonable for the services of attorney Moore and for
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the services of her paralegals. See Trujillo v. Singh, Case No. 1:16-cv-01640 LJO-EPG, 2017

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WL 1831941, at *3 (E.D. Cal. May 8, 2017); accord e.g., Trujillo v. GH Food Mart, Inc., No.

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1:20-cv-00368-AWI-SKO, 2020 WL 4697139, at *7 (E.D. Cal. Aug. 13, 2020); Trujillo v. La

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Valley Foods, Inc., No. 1:16-cv-01402-AWI-BAM, 2017 WL 2992453, at *5 (E.D. Cal. Jul. 14,

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2017); Trujillo v. Lakhani, No. 1:17-cv-00056-LJO-SAB, 2017 WL 1831942, at *7 (E.D. Cal.

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May 8, 2017). The Court therefore finds the requested hourly rates to be reasonable for Ms.

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Moore and her paralegals.

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Attorney Time Expended by Ms. Moore

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Plaintiff seeks recovery for 6.5 hours of work performed by Ms. Moore at $300.00 per

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hour. (Doc. 11-1 at 9.) When considering the billing entries and time records submitted by

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Plaintiff's counsel, the Court finds that the 6.5 hours billed by Ms. Moore is reasonable. (Doc.

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11-3, Ex. A to Moore Decl.) The Court will recommend awarding Plaintiff $1,950.00 for 6.5

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hours of work by Ms. Moore to litigate this case.

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Paralegal Time Expended by Whitney Law and Isaac Medrano

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Plaintiff seeks compensation for 1.6 hours expended by paralegal Whitney Law at

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$115.00 per hour, and 2.8 hours expended by paralegal Isaac Medrano at $115.00 per hour. (Doc.

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11-1 at 9.) When considering the billing entries and time records submitted by Plaintiff's counsel,

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the Court finds that the 1.6 hours billed by Whitney Law is reasonable. (Doc. 11-3, Ex. A to

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Moore Decl.) However, a review of the billing records of Isaac Medrano reveals that certain

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tasks he provided in this action were clerical in nature. In billing for legal services, “purely

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clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs

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them.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). Specifically, Mr. Medrano

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billed .30 on June 1, 2022, to review the order setting scheduling conference, calendaring the

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scheduling conference date, setting the deadline for Rule 26 meet and confer, and setting the

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deadline to file a joint scheduling report. (Doc. 11-3, Ex. A to Moore Decl.) The Court finds that

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this billable entry generally describes clerical tasks and should not be reimbursed at a paralegal

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rate. The Court will deduct .30 hours from Isaac Medrano’s time.

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Based on the above, the Court will recommend an award of 4.1 hours of paralegal time

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comprised of 1.6 hours for Whitney Law ($115.00 hourly rate) and 2.5 (2.8 - .30) hours for Isaac

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Medrano ($115.00 hourly rate) for a total of $471.50.

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Litigation Expenses and Costs

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Plaintiff requests recovery of litigation expenses and costs of $793.89. (Doc. 11-1 at 9;

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Doc. 11-3, Exs. B, C and F to Moore Decl.) Under the ADA, a district court, in its discretion, can

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allow the prevailing party other than the United States to recover a reasonable attorney's fee,

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including litigation expenses and costs. 42 U.S.C. § 12205. The costs here include the court filing

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fee, costs of service, and fee for a pre-filing site inspection of the facility, which are compensable.

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See Trujillo v. La Valley Foods, Inc., 2017 WL 2992453, at *7 (finding costs for court filing fee,

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costs of service, and fee for a pre-filing site inspection of the facility compensable). Accordingly,

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the Court will recommend that Plaintiff be awarded the sum of $793.89 for litigation expenses

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and costs.

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V.

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Based on the foregoing, the Court HEREBY RECOMMENDS as follows:

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1.

Plaintiff's motion for default judgment be GRANTED IN PART;

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2.

Defendants be found and declared to be in violation of Title III of the Americans

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CONCLUSION AND RECOMMENDATION

with Disabilities Act and the California Unruh Civil Rights Act;

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3.

Defendants be ordered to make the following modifications to the facility known

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as Taqueria Guadalajara, located at 700 West Inyo Avenue in Tulare, California 93274, such that

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each item is brought into compliance with the accessibility requirements of the Americans with

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Disabilities Act and California Code of Regulations, Title 24, as follows:

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a) Provide the required number of properly configured and identified accessible parking
stall(s);
b) Provide a properly configured accessible route of travel from the designated accessible
parking to the Facility service window;

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c) Provide a properly configured accessible dining table;

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d) Provide a properly configured accessible portion of the service window and transaction
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counter;

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e) Provide a menu visible from a wheelchair-seated position and/or printed menu that can
be handed to customers;

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4.

$7,215.39, consisting of:

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a.

Plaintiff be awarded statutory damages under the Unruh Act in the amount of

$4,000.00;

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Judgment be entered in Plaintiff's favor and against Defendants in the amount of

b.

Plaintiff be awarded attorney’s fees and costs in the amount of $3,215.39

(attorney’s fees in the amount of $1,950.00 (6.5 hours at $300 per hour), paralegal fees in the

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amount of $471.50. (4.1 hours at $115.00 per hour), and costs of suit in the amount of $793.89);

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and

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5.

Plaintiff is HEREBY ORDERED to mail a copy of these findings and

recommendations to each defendant at that defendant’s last known address.
These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these findings and recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” The parties are advised that the failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.

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Dated:

/s/ Barbara

November 18, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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