Fishman v. Tiger Natural Gas, Inc.

Filing 82

ORDER GRANTING IN PART #49 MOTION TO DISMISS AND #50 MOTION TO STRIKE by Judge Alsup. (whalc1, COURT STAFF) (Filed on 3/8/2018)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

11
For the Northern District of California

United States District Court

10

12

EMILY FISHMAN and SUSAN FARIA,
individually and on behalf of others similarly
situated,

13
14
15
16
17

No. C 17-05351 WHA

Plaintiffs,
v.

ORDER GRANTING IN PART
MOTION TO DISMISS AND
MOTION TO STRIKE

TIGER NATURAL GAS, INC. and
COMMUNITY GAS CENTER INC.,
Defendants.
/

18
19
20

INTRODUCTION
In this putative class action, defendant moves to dismiss or, in the alternative, strike

21

portions of plaintiffs’ second amended complaint. For the reasons set forth below, defendant’s

22

motion to dismiss is GRANTED IN PART AND DENIED IN PART and its motion to strike is

23
24
25

GRANTED IN PART AND DENIED IN PART.

STATEMENT
Prior to 2015, plaintiffs Susan Faria and Emily Fishman purchased natural gas from

26

PG&E. Around April and August of that year, respectively, defendant Tiger Natural Gas, Inc.,

27

through its agent defendant Community Gas Center Inc., called plaintiffs to solicit them to buy

28

natural gas from Tiger through its price protection program. During those sales calls,
defendants represented that Tiger customers would be charged a variable rate for natural gas

1

based on the market price, but with a price cap of $0.69 per therm (SAC ¶¶ 12, 16–18, 45–46;

2

Exh. A).

3

When a customer bought natural gas from Tiger, PG&E still delivered the gas over its

their utility bills, Tiger customers had separate line items for PG&E gas delivery charges and

6

Tiger gas procurement charges. Defendants represented during their sales calls that PG&E had

7

recently increased its rates on natural gas, and that it would continue to do so in the coming

8

years. In reality, however, the California Public Utilities Commission had only approved a rate

9

increase for gas delivery, not for gas procurement, an important distinction. Moreover, PG&E’s

10

rates for gas procurement were in fact decreasing. Because Tiger’s price cap only applied to the

11
For the Northern District of California

existing pipes. Accordingly, while PG&E customers had a single line item for “gas charges” on

5

United States District Court

4

gas procurement rate, and not the gas delivery rate, these statements made Tiger’s price cap

12

seem more beneficial (SAC ¶¶ 13, 24–28).

13

In reliance on defendants’ representations, plaintiffs switched their gas procurement

14

from PG&E to Tiger. With respect to the procurement rate actually charged under the program,

15

Tiger added a large surcharge to the market rate for natural gas, thereby charging plaintiffs

16

more for gas than they would have otherwise been charged by PG&E. Moreover, although

17

defendants advertised the program as “free,” Tiger added a $0.05 daily charge on customers’

18

utility bills (SAC ¶¶ 14, 30–31, 37, 50, 52).

19

Plaintiffs further allege that defendants’ misrepresentations during these calls violated

20

PG&E Gas Rule 23. Gas Rule 23, entitled “Gas Aggregation Service for Core Transportation

21

Customers,” sets forth certain mandates governing the supply of natural gas to residential and

22

small commercial customers within PG&E’s territory. Plaintiffs describe Gas Rule 23 as a

23

contract between Tiger and PG&E but defendant describes it as a tariff. However that may be,

24

pursuant to Gas Rule 23, Core Transport Agents such as Tiger act as retail gas service providers

25

that compete with PG&E to provide customers alternative rates and rate structures.

26
27

To make matters worse, defendants recorded these sales calls despite not asking
plaintiffs for consent to do so (or otherwise disclosing that the calls were recorded). Faria

28
2

1

received a sales call from defendants even though she had placed her home number on the Do-

2

Not-Call list in 2004 (SAC ¶¶ 19, 46–49).

3

After the sales calls concluded, an automated verification system asked plaintiffs for

4

their consent to record a second call. The automated system also stated that Tiger would mail

5

plaintiffs a copy of the price protection program’s terms and conditions. Plaintiffs do not

6

remember receiving such a mailing (SAC ¶¶ 43, 50).

7

Based on these allegations, plaintiffs bring claims on behalf of proposed sub-classes for:

8

(1) violations of the California Recording Law; (2) violations of the Telephone Consumer

9

Protection Act; (3) breach of oral contract; (4) breach of third-party beneficiary contract (Gas
Rule 23); (5) violations of the Consumer Legal Remedies Act; (6) fraud; (7) negligent

11
For the Northern District of California

United States District Court

10

misrepresentation; (8) false advertising; and (9) unfair competition.

12

In August 2017, plaintiff Fishman filed her original complaint against Tiger in state

13

court, which action Tiger removed to this district. After Tiger sought to dismiss Fishman’s

14

original complaint, Fishman filed a first amended complaint in which Faria intervened as an

15

added plaintiff and Community Gas Center was named as a new defendant. The parties

16

eventually stipulated to plaintiffs filing the second amended complaint (the operative

17

complaint), which first raised Gas Rule 23. Tiger now moves to dismiss and to strike the

18

second amended complaint (Dkt. No. 1, 13, 29, 49–50). This order follows full briefing and

19

oral argument.

20

ANALYSIS
JUDICIAL NOTICE.

21

1.

22

Tiger seeks judicial notice of three documents: (1) PG&E Gas Rule 23; (2) Gas

23

Schedule G-CT; and (3) a sample Core Gas Aggregation Service Agreement (Dkt. No. 51).

24

Plaintiffs seek judicial notice of these same documents, all of which are publically available and

25

the first two of which are incorporated by reference into the operative complaint (Dkt. No. 63).

26

A court may take judicial notice of any fact “not subject to reasonable dispute because it . . . can

27

be accurately and readily determined from sources whose accuracy cannot reasonably be

28

questioned.” FRE 201(b). The parties’ requests for judicial notice are accordingly GRANTED.
3

1
2
3

2.

FAILURE TO STATE A CLAIM.
A.

California Recording Law Claim.

Tiger moves to dismiss plaintiffs’ California Recording Law claim on the ground that

4

the second amended complaint fails to allege that defendants’ sales calls were protected

5

confidential communications. Section 632(c) of the California Penal Code defines “confidential

6

communication” as:

7
8
9

[A]ny communication carried on in circumstances as may reasonably indicate that any
party to the communication desires it to be confined to the parties thereto, but excludes a
communication made in a public gathering or in any legislative, judicial, executive, or
administrative proceeding open to the public, or in any other circumstance in which the
parties to the communication may reasonably expect that the communication may be
overheard or recorded.

10
that no one is ‘listening in’ or overhearing the conversation.” Flanagan v. Flanagan, 27 Cal.
For the Northern District of California

United States District Court

Confidentiality requires “the existence of a reasonable expectation by one of the parties
11
12
4th 766, 772–73 (2002). This test is an objective one, and a plaintiff’s subjective expectation of
13
a private communication accordingly has little bearing. Id. at 776–77.
14
Tiger argues that plaintiffs’ allegations regarding the sales calls — namely that (1) the
15
parties discussed plaintiffs’ PG&E account information, (2) the calls were not made in a public
16
setting, and (3) many other telemarketers disclose that calls are recorded — are insufficient to
17
allege an objectively reasonable expectation of confidentiality. But unlike the facts presented in
18
Tiger’s authorities, here, the plaintiffs sufficiently allege personalized calls which involved the
19
disclosure of personal information.
20
In Weiner, for example, the exchange between the parties “barely amounted to a
21
communication or conversation.” The plaintiff was not the defendant’s customer and did not
22
disclose personal information, and the defendant had not even called to speak with the plaintiff
23
but rather asked for his ex-employee. Weiner v. ARS Nat. Servs., Inc., 887 F. Supp. 2d 1029,
24
1033 (S.D. Cal. 2012) (Judge M. James Lorenz). Similarly, in Rorty, the phone call at issue did
25
not concern the plaintiff’s personal financial affairs, but rather consisted of non-personalized
26
sales pitches regarding available products. Rorty v. Quicken Loans Inc, No. 12-cv-00560, 2012
27
WL 12886842, at *4 (C.D. Cal. July 3, 2012) (Judge Gary Feess).
28
4

1

And in Faulkner v. ADT Security Servsices, Inc., No. 11-cv-00968, 2011 WL 1812744,

2

at *4 (N.D. Cal. May 12, 2011) (Judge Jeffrey White), the district court found that in light of the

3

defendant’s business (home security) and the character of the telephone call (a billing dispute),

4

the plaintiff had no objectively reasonable expectation that the call would not be recorded or

5

monitored. In so concluding, Judge White distinguished the case from Membrila v. Receivables

6

Performance Management, LLC, No. 09-cv-2790, 2010 WL 1407274 (S.D. Cal. April 6, 2010)

7

(Judge Irma Gonzalez), where a call initiated by a debt collector discussed the plaintiff’s debt

8

and salary in an attempt to collect payment, which circumstances Judge White agreed supported

9

a reasonable expectation of confidentiality.
Here, plaintiffs allege that defendants initiated a personalized call in which they were

11
For the Northern District of California

United States District Court

10

invited to discuss their PG&E accounts, including confirmation of their home addresses,

12

account numbers, and rate schedule. This case more closely resembles Membrila and Kearney

13

v. Saloman Smith Barney Inc., 39 Cal. 4th 95, 118 n.10 (2016), where the California Supreme

14

Court recognized that callers to financial advisors had a reasonable expectation of privacy in

15

their conversations in light of the “strong privacy interest most persons have with regard to the

16

personal financial information frequently disclosed in such calls.” Construing the complaint in

17

the light most favorable to plaintiffs, this order finds that plaintiffs had an objectively

18

reasonable expectation that their calls with defendants would not be overheard or recorded.

19

Tiger’s motion to dismiss this claim is DENIED.

20
21
22
23

B.

Telephone Consumer Protection Act Claim.

Tiger next moves to dismiss plaintiffs’ TCPA claim on the ground that Faria fails to
allege that she received more than one call in a 12-month period.
The TCPA establishes a claim for relief for any user who receives “more than one

24

telephone call within any 12-month period by or on behalf of the same entity” at a number on

25

the Do-Not-Call list. 47 U.S.C. § 227(c)(5). The TCPA also provides a private right of action

26

for violations of Section 227(b) and regulations promulgated thereunder, which prohibit calls

27

(other than for an emergency) to cellphone numbers by way of an automatic telephone dialing

28

system (ATDS) without the prior express consent of the called party.
5

1

Faria does not dispute that she only alleges having received a single call from

2

defendants. Rather, she argues that because defendants allegedly made the sales call using “an

3

automatic telephone dialing system,” she has a private right of action under Section 227(b) and

4

its accompanying regulations. Contrary to plaintiffs, however, 47 C.F.R. § 64.1200(c) — which

5

concerns calls to numbers on the Do-Not-Call list — was promulgated under Section 227(c),

6

not Section 227(b). Drew v. Lexington Consumer Advocacy, LLC, No. 16-cv-00200, 2016 WL

7

1559717, at *6 (N.D. Cal. Apr. 18, 2016) (Judge Laura Beeler). Faria may not rely on this

8

provision to state a claim under Section 227(b).

9

Because Faria fails to allege that she received more than one call during a 12-month
period, her claim under the TCPA fails as a matter of law. Tiger’s motion to dismiss this claim

11
For the Northern District of California

United States District Court

10

is GRANTED.

12
13

C.

Third-Party Beneficiary Contract Claim.

Tiger argues that plaintiffs’ claim for breach of third-party beneficiary contract should

14

be dismissed because Gas Rule 23 is a tariff, not a contract between Tiger and PG&E. “Tariffs”

15

refer collectively to the sheets that a utility must file, maintain, and publish as directed by the

16

CPUC, and that set forth the terms and conditions of the utility’s services to its customers.

17

Davis v. S. California Edison Co., 236 Cal. App. 4th 619, 623 n.6 (2015) (quotes and citations

18

omitted). This order agrees that Gas Rule 23 is a “tariff rule.” N. Star Gas Co. v. Pac. Gas &

19

Elec. Co., No. 15-cv-02575, 2016 WL 5358590, at *10 n.4 (N.D. Cal. Sept. 26, 2016) (Judge

20

Haywood Gilliam, Jr.). Once a tariff is approved by CPUC, “[t]he law, not a contract between

21

the parties, prescribes the classifications, rates and liabilities attendant thereon.” Trammell v.

22

W. Union Tel. Co., 57 Cal. App. 3d 538, 550 (1976). Because plaintiffs fail to allege an

23

enforceable contract, their third-party beneficiary claim must be dismissed.

24

Plaintiffs respond that even if Gas Rule 23 is a tariff, the Core Gas Aggregation Service

25

Agreement entered into between Tiger and PG&E expressly incorporates Gas Rule 23.

26

Plaintiffs therefore seek leave to amend their complaint to assert a claim for breach of the

27

CGAS Agreement, rather than a breach of Gas Rule 23. Tiger agrees that a tariff can supply the

28

terms of a contractual agreement. It disputes, however, that plaintiffs are able to sufficiently
6

1

plead that they are the intended beneficiaries of the CGAS Agreement. Plaintiffs, while

2

conceding that they are not expressly named therein, rely on the Rule’s provisions entitled

3

“Customer Protection,” “Non-Compliance with Customer Protection,” and “Third Party

4

Verification” to show that plaintiffs are not merely incidental beneficiaries.

5

Leave to amend may be denied if it appears to be futile. A proposed amendment is

6

futile, however, only if no set of facts can be proved under the amendment to the pleadings that

7

would constitute a valid and sufficient claim or defense. Miller v. Rykoff-Sexton, Inc., 845 F.2d

8

209, 214 (9th Cir. 1988). While plaintiffs’ current allegations may be insufficient to show that

9

they are intended beneficiaries under the CGAS Agreement, that possibility has not been
negated. A full determination should instead be made on a motion for leave to amend. Tiger’s

11
For the Northern District of California

United States District Court

10

motion to dismiss this claim is GRANTED.

12

3.

EXCLUSIVE JURISDICTION.

13

In light of plaintiffs’ invocation of Gas Rule 23 in the second amended complaint,

14

Tiger now moves to dismiss the action on the grounds that the California Public Utilities

15

Commission (CPUC) has exclusive jurisdiction to hear plaintiffs’ claims. Section 1759(a) of

16

the California Public Utilities Code provides that no court, except for the California Supreme

17

Court or a California court of appeal, has jurisdiction to interfere with the authority of the

18

CPUC in the performance of its official duties. To determine whether Section 1759(a) bars a

19

plaintiff’s claim, courts must consider: (1) whether CPUC has the authority to adopt a

20

regulatory policy on the issue in question; (2) whether CPUC has exercised that authority; and

21

(3) whether the current action would hinder or interfere with CPUC’s exercise of its regulatory

22

authority. San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893, 923–35 (1996)

23

(“Covalt”).

24

This order finds that — with the exception of plaintiffs’ claims for injunctive relief —

25

CPUC does not have exclusive jurisdiction over this action. Plaintiffs do not dispute that

26

California law authorizes CPUC to regulate the subject matter of this action. They also do not

27

dispute that CPUC has actually exercised this authority by approving Gas Rule 23, which

28

contains several consumer protection provisions and protocols regarding the resolution of
7

1

customer complaints. The parties dispute, however, whether adjudication of plaintiffs’ claims

2

would “hinder or interfere” with CPUC’s exercise of regulatory authority.

3

Tiger contends that resolution of plaintiffs’ claims requires the interpretation,

4

evaluation, and application of Gas Rule 23, which in turn interferes with CPUC’s exclusive

5

right to interpret its own regulations. Plaintiffs respond that Gas Rule 23 is, at most, integral to

6

their breach of third-party contract claim, but that in any event the application of Gas Rule 23 in

7

this case would not “hinder or interfere” with CPUC’s authority.

8
9

Courts are not precluded from acting in aid of, rather than in derogation of, CPUC’s
jurisdiction. Hartwell Corp. v. Superior Court, 27 Cal. 4th 256, 275 (2002). Courts may
therefore entertain actions which seek to enforce, rather than challenge, obligations created by

11
For the Northern District of California

United States District Court

10

CPUC. N. Star Gas Co., 2016 WL 5358590, at *13. Even where a plaintiff only seeks to

12

enforce a CPUC rule, however, “the action is impermissible if its adjudication requires courts to

13

determine how, or even whether, an ambiguous CPUC rule applies” because such a

14

determination amounts to policymaking that hinders or interferes with CPUC’s exercise of

15

jurisdiction. Ibid.

16

With respect to plaintiffs’ damages claims, only their breach of third-party contract and

17

unfair competition claims require the application of Gas Rule 23. But even as to those claims,

18

this action does not present complex questions of interpretation, require the application of

19

ambiguous provisions, or require decisions on policy questions. Rather, plaintiffs simply assert

20

that defendants violated the express provisions of Gas Rule 23 by misrepresenting aspects of

21

Tiger’s price protection program, failing to disclose certain of the program’s terms, and failing

22

to send plaintiffs the required written terms and conditions. A damages award as to any of

23

plaintiffs’ claims would not hinder or impede any policy adopted by CPUC.

24

It may be, however, than an injunction would interfere with the CPUC’s regulatory

25

function. If and when the time comes for injunctive relief, there will be time enough to consider

26

this problem. For now, it is premature. Tiger’s motion to dismiss plaintiffs’ claims under the

27

exclusive jurisdiction doctrine is accordingly DENIED.

28
8

1

4.

FILED-TARIFF RULE.

2

The filed-rate rule, also known as the filed-tariff rule, applies in regulated industries

3

where federal law requires a common carrier to publicly file schedules of services and the rates

4

or tariffs to be charged for those services. Davel Commc'ns, Inc. v. Qwest Corp., 460 F.3d

5

1075, 1084 (9th Cir. 2006). The rules requires that common carriers and their customers adhere

6

to tariffs filed and approved by appropriate regulatory agencies, and bars suits that would

7

“invalidate, alter or add to the terms of the filed tariff.” Evanns v. AT&T Corp., 229 F.3d 837,

8

840 (9th Cir. 2000).

9

Tiger does not contend that California law recognizes a state equivalent to the filedtariff rule. Rather, Tiger argues that plaintiffs’ claims challenge conduct required under Gas

11
For the Northern District of California

United States District Court

10

Rule 23 and that, accordingly, the entire complaint is barred. Contrary to Tiger, however,

12

plaintiffs’ allegations do not demonstrate Tiger’s compliance with Gas Rule 23. Nor do

13

plaintiffs’ claims challenge conduct mandated by that rule.

14

On a motion to dismiss, district courts must take the plaintiff’s allegations as true and

15

draw all reasonable inferences in the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d

16

556, 561 (9th Cir. 1987). As alleged, Tiger failed to comply with multiple subsections of Gas

17

Rule 23. Among other things, Tiger misled plaintiffs regarding its price protection program’s

18

terms and benefits, failed to disclosure certain of the program’s terms, and failed to send written

19

confirmation of the program’s conditions. Tiger wholly fails to explain how these alleged

20

misrepresentations and omissions were required under Gas Rule 23. Moreover, as a review of

21

the complaint demonstrates, these same misrepresentations and omissions help form the basis of

22

plaintiffs’ CLRA, fraud, negligent misrepresentation, false advertising, and unfair competition

23

claims.

24

Tiger is also unable to avoid plaintiffs’ California Recording Law claim on the ground

25

that Gas Rule 23 required Tiger to maintain recordings of customer sales calls. Tiger contends

26

(without citation to any authority) that this provision’s inclusion in Gas Rule 23 reflects

27

CPUC’s view that such sales calls are not “confidential communications” protected by the

28

California Recording Law. While Tiger may ultimately rely on Gas Rule 23’s provisions to
9

1

argue that any expectation of confidentiality held by plaintiffs was unreasonable, this provision

2

alone does not mandate conduct prohibited by the California Recording Law. Tiger’s motion to

3

dismiss the complaint on this ground is accordingly DENIED.

4

5.

MOTION TO STRIKE.

5

Under FRCP 12(f), “the court may strike from a pleading an insufficient defense or any

6

redundant, immaterial, impertinent, or scandalous matter.” “Immaterial” matter is that which

7

“has no essential or important relationship to the claim for relief or the defenses being pleaded.”

8

5 Miller & Wright, Federal Practice and Procedure § 1382. Motions to strike are viewed

9

negatively because of the limited import of the pleadings under the Federal Rules. Such
motions “should not be granted unless it is clear that the matter to be stricken could have no

11
For the Northern District of California

United States District Court

10

possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsystems, Inc.,

12

758 F. Supp. 1335, 1339 (N.D. Cal. 1991) (Judge Spencer Williams).

13

First, Tiger seeks to strike the allegations in the second amended complaint relating to

14

the claims dismissed in this order for failure to state a claim. Plaintiffs do not contest that

15

dismissed claims are properly stricken from the operative complaint. Accordingly, Tiger’s

16

request to strike allegations relating to plaintiffs’ TCPA and third-party beneficiary contract

17

claims is GRANTED. It is hereby ordered that the following be stricken:

18

•

19
20

PROTECTION ACT (47 U.S.C. § 227 and 47 C.F.R. 64.1200)”
•

21
22

Pg. 2, Caption: “BREACH OF THIRD-PARTY BENEFICIARY CONTRACT
(Cal. Civ. Code § 1559)”

•

Paragraph 2, lines 7–8: “Tiger/CGC made some of those Sales Calls to telephone
numbers on the Do Not Call list.”

23
24

Pg. 1, Caption: “2. VIOLATIONS OF TELEPHONE CONSUMER

•

Paragraph 5, lines 24–26: “Faria received Tiger/CGC’s Sales Call at her

25

telephone number which was on the Do Not Call list at the time and had been for

26

more than 10 years.”

27
28

•

Paragraph 15, lines 24–26: “which is a contract between PG&E and Core
Transport Agents (such as Tiger). Prospective customers like Plaintiffs Fishman
10

1

and Faria and the Class are intended third-party beneficiaries of Sections D-E

2

and Schedule G-CT of PG&E Gas Rule 23.”

3

•

Paragraph 39, lines 27–28: “Tiger/CGC and their agents were not trained in the

4

proper use of the Do Not Call list and called prospective customers’ telephone

5

numbers on the Do Not Call list;”
•

Heading C., pg. 11, lines 4: “at Her Telephone Number on the Do Not Call List”

7

•

Paragraphs 47–48

8

•

Paragraph 75, lines 23: “that was registered on the Do Not Call List”

9

•

Paragraph 80(b)

10

•

Paragraph 80(k), lines 23-25: “(Tiger’s contract with PG&E that regulates how it

11
For the Northern District of California

United States District Court

6

can solicit new customers), Sections D-E of which are for customers’ benefit”

12

•

13

Paragraph 81, lines 28–29: “Faria and all members of the Do Not Call Sub-Class
received Tiger’s calls at telephone numbers on the Do Not Call list.”

14

•

Paragraphs 96–104, 116–133

15

•

Paragraph 201, line 15: “federal and”

16

•

Paragraphs 202–204, 216, 232–33

17

•

Paragraph 234, lines 30-31; pg. 46, line 1: “the Telephone Consumer Protection

18

Act (47 U.S.C. § 227),” and “Restrictions on Telemarketing, Telephone

19

Solicitation, and Facsimile Advertising (47 C.F.R. § 64.1200)”

20

Second, Tiger moves to strike allegations that Tiger solicited customers of gas providers

21

other than PG&E and failed to comply with Section 1782 of the California Civil Code, which

22

allegations Tiger contends are immaterial to plaintiffs’ claims. Tiger has not satisfied the high

23

burden to show that these matters have “no possible bearing” on this litigation. The motion to

24

strike these allegations is accordingly DENIED.1

25
26
27
28

1

Because this order does not rely on Exhibit A to the Declaration of Daniel Balsam (Dkt. No. 61-1),
Tiger’s motion to strike is accordingly DENIED AS MOOT.

11

1
2

CONCLUSION
The motion to dismiss is GRANTED IN PART AND DENIED IN PART and the motion to

3

strike is GRANTED IN PART AND DENIED IN PART, as set forth above. Plaintiffs may seek leave

4

to amend the dismissed claims and will have until MARCH 29 to file a motion, noticed on the

5

normal 35-day track, for leave to file an amended complaint. The motion must include a

6

proposed pleading (and a redlined copy) and must clearly explain why the foregoing problems

7

are overcome by the proposed pleading. Plaintiffs must plead their best case.

8
9

IT IS SO ORDERED.

11
For the Northern District of California

United States District Court

10
Dated: March 8, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12