1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES COLEMAN, et al., No. 2:17-cv-00655-TLN-DMC 12 Plaintiffs, 13 v. ORDER 14 COUNTY OF SHASTA, et al., 15 Defendants. 16 17 This matter is before the Court on Defendants County of Shasta (“County”), Deputy Tim 18 Estes (“Estes”), and Deputy Gary Nunnelly’s (“Nunnelley”) (collectively, “Defendants”) Motion 19 for Summary Judgment. (ECF No. 35.) Plaintiffs James Coleman (“Coleman”) and MC Health 20 & Wellness Center, Inc. (“MC Health”) (collectively, “Plaintiffs”) filed an opposition. (ECF No. 21 37.) Defendants filed a reply. (ECF No. 39.) For the reasons set forth below, the Court 22 GRANTS in part and DENIES in part Defendants’ motion. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL BACKGROUND1 2 Coleman resides on property in Shasta County, California. (ECF No. 37-1 at 3.) The 3 property is in a remote wooded area and consists of two adjoining lots, which are each 20 acres. 4 (Id.) The southern lot fronts the road, while the northern lot is in the back. (Id.) There is an 5 unpaved gravel easement that cuts across a corner of the southern lot to access the northern lot. 6 (Id.) Wayne Schooley formerly owned both lots. (Id.) In 2000 or 2001, Coleman purchased the 7 northern lot from Wayne Schooley. (Id.) Wayne Schooley retained the southern lot and granted 8 Coleman an easement to cross the southern lot so he could access the northern lot. (Id.) Coleman 9 asserts that Wayne Schooley maintained a separate road to access the southern lot for the 10 following 13 years and told Coleman that he had exclusive use of the gravel easement road to the 11 northern lot. (Id.) Coleman further asserts Wayne Schooley gave him the locked gate on the 12 easement road. (Id.) 13 In 2014, Wayne Schooley gave the southern lot to his son, Robert Schooley, and his wife, 14 Pamela. (Id. at 4.) Robert and Pamela Schooley (the “Schooleys”) drove to the property in their 15 recreational vehicle (“RV”), which they planned on living in while they built a house. (Id.) 16 Coleman disputes this fact by stating that the Schooleys originally told him they were only 17 camping and would not be staying long. (Id.) When the Schooleys arrived at the property, there 18 was a gate secured with a chain and a lock blocking the easement. (Id.) Coleman indicates the 19 separate road that Wayne Schooley formerly maintained was too overgrown to accommodate the 20 Schooley’s larger RV, so Coleman opened the gate for the Schooleys. (Id.) 21 Over the next several years, the Schooleys and Coleman had numerous verbal altercations, 22 at least some of which arose out of the shared use of the easement. (Id.) On multiple occasions, 23 Coleman put a lock on the gate. (Id.) Each time, Robert Schooley would cut the lock off. (Id.) 24 On July 6, 2016, Robert Schooley left his property to go to work. (Id. at 5.) When he 25 returned home later that day, a new lock had been placed on the gate. (Id.) Robert Schooley 26 decided that rather than cut the lock off, he would contact the Sheriff’s Department. (Id.) A short 27
28 1 The following facts are undisputed unless otherwise noted. 1 time later, Estes and Nunnelley were dispatched to the scene. (Id.) The deputies parked on the 2 street next to the gated driveway. (Id.) The gate was locked, and there was a sign on the gate for 3 a medical marijuana collective. (Id.) 4 Robert Schooley met the deputies at the locked gate. (Id.) He identified himself as the 5 person who called for assistance and as the owner of the southern lot that fronted the road. (Id.) 6 Robert Schooley told the deputies that his RV and other possessions were just inside the gated 7 access of the driveway, and these possessions were visible from the road. (Id.) Robert Schooley 8 also told the deputies that his neighbor had an easement to use the driveway so that he could 9 access his lot in the back. (Id. at 5–6.) When Robert Schooley asked the deputies if they would 10 remove the lock, Estes responded that he could not do that because this was a neighbor dispute, 11 and he was not permitted to cut a lock on a gate on private property unless there was an 12 emergency. (Id. at 6.) Robert Schooley did not want to cut the lock as it appeared to be too 13 strong for bolt cutters, so he instead took the gate off the hinges and removed it. (Id.) 14 The parties dispute almost everything about what happened next. The Court will address 15 the parties’ differing version of events in turn. 16 A. Defendants’ Version of Events 17 After Robert Schooley removed the gate, Estes offered to talk to Coleman to see if there 18 was a way to resolve the dispute. (Id. at 7.) Robert Schooley accepted the offer and invited the 19 deputies onto the property. (Id.) When they arrived at the end of the driveway on Coleman’s 20 property, the deputies exited their vehicles and observed two structures that appeared to be a 21 house and barn or shop. (Id. at 8.) Estes walked up to the front door of the house and knocked on 22 the door. (Id. at 9.) Nunnelley, who was standing in the driveway, observed a side or rear yard 23 area that was to the south and east of the structures. (Id.) Nunnelley walked to that area, peered 24 around the structure, and walked a few paces into the open yard. (Id. at 9–10.) Nunnelley 25 indicated he was checking the yard to make sure there were no safety threats, as he knew in his 26 experience responding to calls in Shasta County that property owners in rural areas typically have 27 dogs and/or firearms. (Id. at 9.) Nunnelley observed a green tarp covering an area on the other 28 side of some berry bushes and what appeared to be tops of marijuana plants. (Id. at 10.) 1 Nunnelley also smelled marijuana in the air, which grew stronger as he walked toward the berry 2 bushes. (Id.) Nunnelley then joined Estes at the front door of the home. (Id.) 3 A short while later, Coleman emerged from the home. (Id. at 11.) After some discussion 4 about the easement dispute, Nunnelley asked Coleman if he was growing marijuana on the 5 property. (Id. at 12.) Coleman responded that he grows marijuana for a medical marijuana 6 collective of 17 people and showed the deputies a medical marijuana recommendation card. (Id.) 7 Nunnelley asked Coleman if he was growing marijuana indoors and outdoors and he responded 8 “yes” to both. (Id.) Nunnelley then asked Coleman if he would show them the inside of the shop. 9 (Id.) Coleman responded that he would and led the deputies into the shop. (Id.) While inside, 10 the deputies observed several dozen marijuana plants and “clones” (which are small marijuana 11 plants clipped from a larger plant and planted into separate pots) growing inside the two grow 12 rooms. (Id.) Nunnelley counted 80 plants and 175 clones inside the structure. (Id.) Nunnelley 13 then asked Coleman if he would show him the outdoor grow area, and Coleman responded that he 14 would. (Id. at 12–13.) They exited the shop, and Coleman pointed in the direction of the berry 15 bushes and told Nunnelley that the grow was through the fence. (Id. at 13.) Nunnelley walked to 16 the outdoor grow area and observed a total of 43 outdoor plants. (Id.) 17 Nunnelley then returned and informed Coleman that he was out of compliance with the 18 Shasta County Ordinance related to growing marijuana. (Id.) Defendants cite Shasta County 19 Ordinance 2014-2, which prohibited the outdoor cultivation of marijuana on any property and 20 deemed it a public nuisance.2 (Id. at 2.) The Ordinance also limited the total number of plants 21 that could be grown indoors on any premises to a total of 12 plants. (Id. at 3.) 22
23 2 Defendants request the Court take judicial notice of the Shasta County Code and Ordinances (Exhibits One through Three) and 2014 election data (Exhibit Four). (ECF No. 35-2.) 24 Plaintiffs do not oppose. Under Federal Rule of Evidence 201, facts appropriate for judicial notice are those “not subject to reasonable dispute” that are either “(1) [] generally known within 25 the trial court’s jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Defendants’ exhibits are “not 26 subject to reasonable dispute” and “can be accurately and readily determined from sources whose 27 accuracy cannot reasonably be questioned.” Id. Therefore, the Court GRANTS Defendants’ request for judicial notice. 28 1 Nunnelley told Coleman that he was going to refer the matter to the District Attorney for 2 violations of the Ordinance. (Id. at 13.) Deputy Estes and Deputy Nunnelley took photographs 3 and collected samples of the marijuana plants as evidence. (Id.) For the plants that were not 4 taken for evidentiary purposes, Nunnelley removed them from the ground or from the pots they 5 were in and left them on the property. (Id.) 6 B. Coleman’s Version of Events3 7 According to Coleman, the deputies entered his property, not to diffuse the neighbor 8 dispute, but to execute a warrantless search and seizure because they had information that he was 9 a Black man illegally growing marijuana. (Id. at 7.) Coleman saw the deputies first arrive at his 10 home on security monitors. (ECF No. 37-4 at 6.) Coleman then yelled to the deputies, “How did 11 you get through my locked gate?” (Id.) In response, Estes told Coleman his neighbors had 12 removed the gate to give them access to Coleman’s property. (Id.) Coleman told the deputies he 13 wanted the neighbors charged for vandalizing the gate, to which Estes responded they were “not 14 here for that” and instead had come about “marijuana being grown on the property.” (Id.) At this 15 point, Nunnelley started going around the side of Coleman’s house while Estes questioned 16 Coleman. (Id.) Coleman states there would not have been a smell of marijuana in the air because 17 the plants were too immature to “stink” and the marijuana plants behind the berry bushes were 18 not visible without poking or walking around the bushes. (Id. at 6–7.) 19 When Nunnelley came back, both deputies started pressuring Coleman about marijuana 20 on the property. (Id. at 7.) Coleman states he neither consented to the search nor made any 21 statements that could be reasonably understood as consent to search the property. (Id.) Coleman 22 states he believed he had no choice but to follow the deputies’ subsequent direction to show him 23 around inside the shop area. (Id. at 7–8.) After the deputies went to the shop area, Nunnelley left 24 for a brief period and returned. (Id. at 8.) Nunnelley then told Coleman he was out of 25 compliance with the Shasta County Ordinance and that he was going to refer the matter to the 26 District Attorney. (Id.) 27 3 Defendants object to certain portions of Plaintiffs’ evidence. (ECF No. 39-1.) The Court 28 will only address evidentiary objections that are material to its ruling herein. 1 Coleman states that after photographing the plants and taking some samples, the deputies 2 began destroying some of the marijuana plants. (Id.) Coleman asked the deputies to keep an 3 accurate count because someone was going to have to pay for the damages and the collective was 4 not going to be able to fulfill its contracts without the plants. (Id.) The deputies laughed and 5 completed the destruction of the plants. (Id.) By Coleman’s count, the deputies destroyed 287 6 plants, which amounts to a loss of about $1.9 million. (Id.) As the deputies were leaving, 7 Nunnelley told Coleman, “You need to move. Your kind isn’t wanted here in Shasta County.” 8 (Id.) Coleman responded, “What ‘kind’ are you referring to?” (Id.) Estes then interjected, 9 “Dude, let’s go! Don’t answer that question.” (Id.) Coleman asserts that based on the way 10 Nunnelley said this comment and Estes’s reaction, he is sure Nunnelley was referring to 11 Coleman’s race/skin color. (Id. at 8–9.) 12 II. PROCEDURAL BACKGROUND 13 Coleman and MC Health (the medical marijuana collective that contracted with Coleman 14 to grow marijuana on the property) filed the operative First Amended Complaint (“FAC”) on July 15 28, 2017. (ECF No. 9.) Plaintiffs allege: (1) a 42 U.S.C. § 1981 claim; (2) a 42 U.S.C. § 1982 16 claim; (3) a 42 U.S.C. § 1983 claim based on Fourth, Fifth, and Fourteenth Amendment 17 violations; (4) a California Civil Code § 51 (“Unruh Act”) claim; (5) a California Civil Code § 52 18 (“Bane Act”) claim; (6) a trespass to land claim; (7) an invasion of privacy claim; (8) a 19 conversion claim; (9) an intentional infliction of emotional distress claim; (10) a negligent 20 infliction of emotional distress claim; and (11) an interference with contractual advantage claim.4 21 (Id.) Defendants filed the instant motion for summary judgment on April 1, 2021. (ECF No. 35.) 22 III. STANDARD OF LAW 23 Summary judgment is appropriate when the moving party demonstrates no genuine issue 24 of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. 25 R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary 26 judgment practice, the moving party always bears the initial responsibility of informing the 27 4 The Court previously dismissed the negligent infliction of emotional distress claim (Claim 28 Ten) without leave to amend. (ECF No. 23 at 9.) 1 district court of the basis of its motion, and identifying those portions of “the pleadings, 2 depositions, answers to interrogatories, and admissions on file together with affidavits, if any,” 3 which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 4 Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof 5 at trial on a dispositive issue, a summary judgment motion may properly be made in reliance 6 solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 7 324 (internal quotation marks omitted). Indeed, summary judgment should be entered against a 8 party who does not make a showing sufficient to establish the existence of an element essential to 9 that party’s case, and on which that party will bear the burden of proof at trial. 10 If the moving party meets its initial responsibility, the burden then shifts to the opposing 11 party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. 12 Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities Serv. 13 Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual dispute, 14 the opposing party may not rely upon the denials of its pleadings but is required to tender 15 evidence of specific facts in the form of affidavits, and/or admissible discovery material, in 16 support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must 17 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 18 suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that 19 the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for 20 the nonmoving party. Id. at 251–52. 21 In the endeavor to establish the existence of a factual dispute, the opposing party need not 22 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 23 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 24 trial.” First Nat’l Bank of Ariz., 391 U.S. at 288–89. Thus, the “purpose of summary judgment is 25 to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 26 trial.’” Matsushita Elec. Indus. Co., 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s 27 note on 1963 amendments). 28 /// 1 In resolving the summary judgment motion, the court examines the pleadings, depositions, 2 answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed. 3 R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence 4 of the opposing party is to be believed and all reasonable inferences that may be drawn from the 5 facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. 6 at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 7 obligation to produce a factual predicate from which the inference may be drawn. Richards v. 8 Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 9 1987). To show a genuine issue that necessitates a jury trial, the opposing party “must do more 10 than simply show that there is some metaphysical doubt as to the material facts.” Matsushita 11 Elec. Indus. Co., 475 U.S. at 586. “Where the record taken as a whole could not lead a rational 12 trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587. 13 IV. ANALYSIS 14 Defendants move for summary judgment on all of Plaintiffs’ claims. (ECF No. 35-1.) 15 The Court will address Defendants’ arguments as to each claim in turn. 16 A. Claims One and Two 17 In Claim One, Plaintiffs allege a 42 U.S.C. § 1981 (“§ 1981”) claim against all 18 Defendants. (ECF No. 9 at 9–10.) Section 1981 “prohibits racial discrimination in the making 19 and enforcement of private contracts.” Runyon v. McCrary, 427 U.S. 160, 168 (1976). In Claim 20 Two, Plaintiffs allege a 42 U.S.C. § 1982 (“§ 1982”) claim against all Defendants. (ECF No. 9 at 21 10.) Section 1982 prohibits private racial discrimination in the sale or rental of real or personal 22 property. Runyon, 427 U.S. at 170. The Court will first address Defendants’ arguments as to the 23 claims against the individual deputies and then as to the claims against County. 24 i. Individual Deputies 25 Defendants move for summary judgment as to Claims One and Two against the individual 26 deputies because there is no evidence of racial discrimination. (ECF No. 35-1 at 18.) More 27 specifically, Defendants argue the deputies did not know Coleman’s race when they entered his 28 property or when they first suspected there was an illegal marijuana grow. (Id.) Defendants 1 further argue there is no evidence the outcome would have been different had Plaintiff been 2 white. (Id.) 3 The Court disagrees with Defendants and concludes there are genuine issues of material 4 fact as to whether the deputies knew Coleman’s race and acted with discriminatory intent. As 5 already discussed in detail, the parties provide conflicting evidence about almost everything that 6 occurred after Robert Schooley removed the gate to the easement. Regardless of whether the 7 deputies knew Coleman was Black prior to entering his property, it can hardly be said that the 8 deputies did not know Coleman was Black after speaking to him in person at the front door. 9 There is conflicting evidence about whether the deputies acted unlawfully after that point. 10 For example, the parties provide conflicting evidence about whether Coleman verbalized his 11 consent for the search of his property. (ECF No. 37-1 at 12, 16.) In addition, while Defendants 12 argue Nunnelley formed suspicion of the outdoor marijuana grow by walking around the yard 13 before Coleman answered the door, Coleman’s declaration suggests the deputies spoke to 14 Coleman (and therefore knew he was Black) before Nunnelley walked around the yard area. 15 (ECF No. 37-4 at 6 (“[O]nce Deputy Estes mentioned ‘marijuana,’ Deputy Nunnelley started 16 going around the side of my house.”).) Coleman’s declaration also indicates Nunnelley would 17 not have been able to see or smell any outdoor marijuana — a direct and material dispute of 18 Nunnelley’s representation that he could see and smell marijuana. (Id.) Lastly, there is a dispute 19 as to whether Nunnelley told Coleman they did not want “your kind” in the County after 20 searching the property and destroying the marijuana plants. Although Defendants contend 21 Nunnelly’s statement referred to the County’s distaste for marijuana growers, a reasonable jury 22 could conclude that “your kind” referred to Coleman’s race and that Nunnelly’s statement and 23 Estes’s quick reaction showed that the deputies’ preceding actions were motivated by racial 24 animus. The trier of fact should resolve these factual disputes and credibility determinations. See 25 Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (“[W]e must respect the exclusive province of 26 the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw 27 reasonable inferences from proven facts.”) (internal quotation marks and brackets omitted). 28 /// 1 Viewing the evidence in Plaintiffs’ favor provides a reasonable inference the deputies 2 knew Coleman was Black before searching his premises and discriminated against him based on 3 his race. For these reasons, the Court DENIES Defendants’ motion for summary judgment as to 4 Claims One and Two against the individual deputies. 5 ii. The County 6 Defendants also argue Plaintiffs cannot prevail on Claims One and Two against the 7 County because there is no evidence the County had a deliberate policy that encourages officers 8 to engage in “biased-based policing.” (ECF No. 35-1 at 19.) 9 A plaintiff bringing a §§ 1981 or 1982 claim against a municipality must allege that his 10 injury was caused by an official “policy or custom” as set forth in Monell v. Dep’t of Soc. Servs. 11 of City of N.Y., 436 U.S. 658 (1978). Fed’n of African Am. Contractors v. City of Oakland, 96 12 F.3d 1204, 1205 (9th Cir. 1996). To bring a Monell claim, Plaintiffs must establish that “the local 13 government had a deliberate policy, custom, or practice that was the ‘moving force’ behind the 14 constitutional violation [they] suffered.” Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007). 15 Without citing any evidence, Plaintiffs argue the County can be held liable because the 16 deputies acted with deliberate indifference. (ECF No. 37 at 15.) Plaintiffs cite Allen v. Cnty. of 17 Lake, 71 F. Supp. 3d 1044, 1055 (N.D. Cal. 2014). (Id.) Plaintiffs’ reliance on Allen is 18 unpersuasive. The cited section of Allen broadly explains that “a municipality can be liable 19 where its officers demonstrate ‘deliberate indifference’ to plaintiffs’ constitutional rights.” 71 F. 20 Supp. 3d at 1055 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388–89 (1989)). Plaintiffs 21 do not argue a failure to train theory and instead seem to argue the County is liable because the 22 deputies acted with “deliberate indifference” in this particular case. However, the Ninth Circuit 23 has long held that a single incident will not suffice for Monell liability. Christie v. Iopa, 176 F.3d 24 1231, 1235 (9th Cir. 1999). A plaintiff must show a longstanding practice or custom which 25 constitutes the standard operating procedure of the local government entity. See Trevino v. Gates, 26 99 F.3d 911, 918 (9th Cir. 1996). “The custom must be so ‘persistent and widespread’ that it 27 constitutes a permanent and well settled city policy.” Id. (quoting Monell, 436 U.S. at 28 691). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it 1 must be founded upon practices of sufficient duration, frequency and consistency that the conduct 2 has become a traditional method of carrying out policy.” Id. 3 Plaintiffs also argue — again without citing any evidence — that Defendants acted under 4 a policy, custom, or ratification of behavior when they denied Plaintiffs’ rights because the 5 County provides white marijuana growers with alternative procedures to avoid abatement. (Id.) 6 In their separate statement, Plaintiffs cite to Shasta County Code Enforcement Officer Marc 7 Pelote’s deposition from a separate state court proceeding to support the contention that “White 8 people found in violation of the Shasta County Ordinance allowing for the growing of medical 9 marijuana are not criminally charged; instead, their violations are handled as civil public 10 nuisance/abatement matters.” (ECF No. 37-1 at 17.) Defendants object to this evidence, arguing 11 it is improper to take judicial notice of testimony from a separate court proceeding. (ECF No. 39- 12 1 at 3.) Even if the Court were to consider this evidence over Defendants’ objection, however, 13 the Court cannot locate any statement within the cited portions of Pelote’s deposition5 that 14 supports the contention that the County has a policy, custom, or practice of treating marijuana 15 growers differently based on race. 16 In sum, Plaintiffs fail to provide evidence that a County policy, custom, or practice was 17 the “moving force” behind the deputies’ alleged racial discrimination. Whitaker, 486 F.3d at 581. 18 For their part, Defendants provide evidence that the County has policies and rules that prohibit 19 “bias-based policing.” (ECF No. 37-1 at 15.) 20 Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to 21 Claims One and Two against the County. 22 B. Claim Three 23 In Claim Three, Plaintiffs allege a 42 U.S.C. § 1983 (“§1983”) claim against all 24 Defendants. (ECF No. 9 at 10–12.) Section 1983 “provides a cause of action for the ‘deprivation 25 of any rights, privileges, or immunities secured by the Constitution and laws’ of the United 26 States.” Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). The two essential elements a 27 5 Plaintiffs cite 337:21—379:19 of Pelote’s deposition, which appears to be improperly 28 cited as Pelote’s deposition begins at page 354, not 337. 1 plaintiff must establish for a § 1983 claim are as follows: “(1) that a right secured by the 2 Constitution or laws of the United States was violated[;] and (2) that the alleged violation was 3 committed by a person acting under the color of State law.” Id. Plaintiffs allege Defendants 4 violated Plaintiffs’ Fourth Amendment rights to be free from unreasonable search and seizure and 5 Plaintiffs’ Fifth and Fourteenth Amendment rights by taking Plaintiffs’ property without due 6 process or just compensation. (ECF No. 9 at 12.) The Court will discuss each alleged 7 constitutional violation in turn. 8 i. Fourth Amendment 9 The Fourth Amendment provides in relevant part that “[t]he right of the people to be 10 secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 11 shall not be violated.” U.S. Const. amend. IV. “The Fourth Amendment does not proscribe all 12 state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Florida 13 v. Jimeno, 500 U.S. 248, 250 (1991); Morgan v. United States, 323 F.3d 776, 781 (9th Cir. 2003). 14 Defendants argue officers may “approach a home to contact the inhabitants” while passing 15 through the curtilage without violating the Fourth Amendment. (ECF No. 35-1 at 19.) 16 Defendants further argue Robert Schooley appeared to the deputies to have common ownership of 17 the driveway easement and consented to the deputies using the driveway to contact Coleman. 18 (Id.) Defendants also argue there is no evidence to support a claim against the County for these 19 violations. (Id. at 21.) Lastly, Defendants argue they are entitled to qualified immunity. (Id.) 20 As discussed, there are genuine disputes of material fact bearing on whether the deputies 21 acted unconstitutionally. Viewing the evidence in the light most favorable to Plaintiffs, a 22 reasonable juror could find that it was unreasonable for the deputies to believe the Schooleys had 23 authority to invite the deputies onto the easement (much less onto Coleman’s property on the 24 northern lot), especially because it is undisputed that the Schooleys informed the deputies of a 25 property dispute and were locked out of the easement when the deputies arrived. (ECF No. 37-1 26 at 5.) There is also conflicting evidence about whether Nunnelley could have determined there 27 was marijuana being grown illegally once the deputies arrived on Coleman’s property. (ECF No. 28 37-4 at 6.) Even if Nunnelley could see and smell marijuana growing from a legal vantage point, 1 Defendants fail to persuade the Court that deputies were justified in proceeding in their 2 subsequent actions without a warrant. See Katz v. United States, 389 U.S. 347, 357 (1967) 3 (“[S]earches conducted outside the judicial process, without prior approval by judge or 4 magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few 5 specifically established and well-delineated exceptions.”). Moreover, as discussed, there is 6 conflicting evidence about whether Coleman consented to the warrantless search of his property. 7 (ECF No. 37-1 at 12, 16.) 8 These factual disputes preclude summary judgment and a finding of qualified immunity. 9 See Longoria v. Pinal Cnty., 873 F.3d 699, 709–10 (9th Cir. 2017) (denying qualified immunity 10 at summary judgment where fact and credibility issues were to be decided by a jury); Espinosa v. 11 City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir. 2010) (affirming denial of summary judgment 12 on qualified immunity because “there are genuine issues of fact regarding whether the officers 13 violated [the plaintiff’s] Fourth Amendment rights[, which] are also material to a proper 14 determination of the reasonableness of the officers’ belief in the legality of their actions”). 15 Defendants also argue Plaintiffs’ Monell claim against the County fails. (ECF No. 35-1 at 16 21.) Defendants cite evidence indicating that the County trains its deputies on legal methods for 17 entry onto private property, how to conduct searches and seizures, and when warrants are 18 required. (Id.) In opposition, Plaintiffs do not cite any evidence and state only that “[t]he 19 analysis as to the County under [§] 1983 is the same as that above with respect to §§ 1981 and 20 1982.” (ECF No. 37 at 16.) For the same reasons already discussed in the context of the §§ 1981 21 and 1982 claims, the Court concludes there is no genuine issue of material fact as to the County’s 22 liability under Monell. In short, Plaintiffs fail to present evidence — or make any argument — to 23 establish that a County policy, custom, or practice was the “moving force” behind the deputies’ 24 alleged Fourth Amendment violations. Whitaker, 486 F.3d at 581. 25 Thus, Defendants’ motion for summary judgment is DENIED as to Plaintiffs’ Claim 26 Three against the individual deputies based on Fourth Amendment violations and GRANTED as 27 to Claim Three against the County for those violations. 28 /// 1 ii. Fifth and Fourteenth Amendments 2 The Takings Clause of the Fifth Amendment prohibits the government from taking 3 “private property . . . for public use, without just compensation.” U.S. Const. amend. V. To 4 assert a claim under the Takings Clause, “a plaintiff must first demonstrate that he possesses a 5 ‘property interest’ that is constitutionally protected.” Schneider v. Cal. Dep’t of Corr., 151 F.3d 6 1194, 1198 (9th Cir. 1998). State law, as well as federal law, can create a property interest. See 7 id. at 1200–01. However, although “state law creates a property interest, not all state-created 8 rights rise to the level of a constitutionally protected interest.” Brady v. Gebbie, 859 F.2d 1543, 9 1548 n.3 (9th Cir. 1988). 10 Under the Fourteenth Amendment, “[n]o state shall . . . deprive any person of life, liberty, 11 or property, without due process of laws.” U.S. Const. amend. XIV. To establish a procedural or 12 substantive due process claim, a plaintiff must first show “a liberty or property interest protected 13 by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix., 24 F.3d 56, 62 (9th Cir. 14 1994) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)); Kraft v. Jacka, 872 F.2d 862, 15 866 (9th Cir. 1989)). Although state law creates property interests, see Little v. Gore, 148 F. 16 Supp. 3d 936, 955 (S.D. Cal. 2015) (quoting Samson v. City of Bainbridge Island, 683 F.3d 1051, 17 1057 (9th Cir. 2012)), “federal constitutional law determines whether that interest rises to the 18 level of a legitimate claim of entitlement protected by the Due Process Clause.” Id. (quoting 19 Memphis Light Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978); Samson, 683 F.3d at 1057; 20 Lawson v. Umatilla Cnty., 139 F.3d 690, 692 (9th Cir. 1998)). 21 Defendants argue Plaintiffs’ Fifth and Fourteenth Amendment claims fail because there is 22 no federally protected property interest in marijuana. (ECF No. 35-1 at 20.) In opposition, 23 Plaintiffs acknowledge courts have found there is no constitutional right to cultivate marijuana 24 and these claims “might therefore fail.” (ECF No. 37 at 16.) 25 Courts within this district have clarified that marijuana is contraband per se under federal 26 law and thus no person can have a cognizable federal legal interest in it, notwithstanding that it is 27 legal to grow and/or possess marijuana under California law under certain circumstances. See, 28 e.g., Evans v. Cnty. of Trinity, No. 2:18-CV-00083-TLN-JDP, 2021 WL 516796, at *3 (E.D. Cal. 1 Feb. 11, 2021); Barrios v. Cnty. of Tulare, No. 1:13-CV-1665 AWI GSA, 2014 WL 2174746, at 2 *5 (E.D. Cal. May 23, 2014); Schmidt v. Cnty. of Nevada, No. 2:10-CV-3022 FCD/EFB, 2011 3 WL 2967786, at *5 (E.D. Cal. July 19, 2011). Plaintiffs fail to cite to any Ninth Circuit authority 4 to the contrary. 5 Because Plaintiffs have not shown they have a cognizable property interest in marijuana, 6 Plaintiffs’ Fifth and Fourteenth Amendment claims against the deputies fail as a matter of law. 7 Absent an underlying constitutional violation, these claims also fail as brought against the 8 County. See Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001) (“[A] municipality . 9 . . [cannot] be held liable under § 1983 where no injury or constitutional violation has occurred.”). 10 Therefore, the Court GRANTS Defendants’ motion for summary judgment as to Claim 11 Three against all Defendants based on Fifth and Fourteenth Amendment violations. 12 C. Claim Four 13 In Claim Four, Plaintiffs allege a violation of the Unruh Act. (ECF No. 9 at 14.) The 14 Unruh Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and 15 no matter what their . . . race . . . are entitled to the full and equal accommodations, advantages, 16 facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. 17 Civ. Code § 51(b). The California Supreme Court has held that the term “business establishment” 18 should be construed “in the broadest sense reasonably possible.” Isbister v. Boys’ Club of Santa 19 Cruz, Inc., 40 Cal. 3d 72, 78 (1985) (internal quotation marks omitted); McGee v. Poverello 20 House, No. 1:18-cv-00768-LJO-SAB, 2019 WL 5596875, at *4 (E.D. Cal. Oct. 30, 2019). 21 Defendants argue Plaintiffs’ Unruh Act claim fails for two reasons: (1) there is no 22 evidence Defendants discriminated against Plaintiffs; and (2) Defendants are not a “business 23 establishment” within the meaning of the Unruh Act. (ECF No. 35-1 at 23.) 24 As to Defendants’ first argument, the Court has already found there is sufficient evidence 25 of racial discrimination to preclude summary judgment on that basis. As to Defendants’ second 26 argument, Plaintiffs argue the County should be considered a “business establishment” because it 27 28 1 provides services available to the public.6 (ECF No. 37 at 17.) Plaintiffs solely rely on Bohlke v. 2 California, No. C-06-1667 MMC, 2006 WL 2355395, at *3 (N.D. Cal. Aug. 15, 2006). (Id.) In 3 Bohlke, the court found “the DMV qualifies as a business establishment for the purposes of the 4 Unruh Act . . . [because] the DMV’s services are available to members of the public, who 5 voluntarily visit the DMV for the purposes of obtaining drivers’ licenses and related services.” 6 2006 WL 2355395, at *3. Unlike the services provided by the DMV, Defendants were not 7 engaged in what could be considered a business transaction with Plaintiffs. Id. at *2 (explaining 8 that the Unruh Act “firmly established the right of all persons to nondiscriminatory treatment by 9 establishments that engage in business transactions with the public”) (citation omitted). Plaintiffs 10 do not cite — nor can the Court locate — any authority suggesting that Defendants act as a 11 “business establishment” when conducting the type of law enforcement tasks at issue here, which 12 do not involve any “commercial” or “businesslike attributes.” See Carter v. City of L.A., 224 Cal. 13 App. 4th 808, 825 (2014); see also H.M. v. Cnty. of Kern, No. 1:20-CV-1339-JLT-BAK-BAM, 14 2022 WL 1625183, at *6 (E.D. Cal. May 23, 2022) (“[C]ourts have declined to impose liability 15 under the Unruh Act when the alleged wrongful acts did not relate to a business function”) 16 (emphasis in original). Plaintiffs fail to cite any evidence or adequately develop arguments to 17 demonstrate that Defendants act as a business establishment in any context, much less in the 18 context of a law enforcement investigation. Based on the limited argument presented, Plaintiffs 19 fail to persuade the Court that Defendants can be held liable as a “business establishment” under 20 the Unruh Act in these circumstances. 21 Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to Claim 22 Four. 23
24 6 In denying Defendants’ previous motion to dismiss the Unruh Act claim, the Court expressed doubt about the viability of the claim because Plaintiffs argued that their medical 25 marijuana collective was a “business establishment” for Unruh Act purposes. (See ECF No. 23 at 8 (“Plaintiffs do not bring a typical Unruh Act claim in that Plaintiffs do not allege discrimination 26 by the business establishment . . . [b]ut Defendants do not raise this issue in their motion, and the 27 Court is not inclined to address it sua sponte.”) (emphasis in original).) Plaintiffs appear to have abandoned that position in their opposition to the instant motion and now argue Defendants are 28 the “business establishment” under the Unruh Act. 1 D. Claim Five 2 In Claim Five, Plaintiffs allege a violation of the Bane Act. (ECF No. 9 at 14–16.) The 3 Bane Act provides for liability when someone, “by threat, intimidation, or coercion,” interferes 4 with “rights secured by the Constitution or laws of the United States” or those of California. See 5 Cal. Civ. Code § 52.1(b). The Bane Act does not require a showing of “threat, intimidation or 6 coercion” independent from the constitutional violation alleged. See Reese v. Sacramento, 888 7 F.3d 1030, 1043 (9th Cir. 2018). However, the Ninth Circuit has held that the Bane Act requires 8 a defendant to have had a specific intent to violate the plaintiff’s protected rights. Id. 9 Defendants argue the Bane Act claim fails because there is no evidence Defendants had a 10 specific intent to violate Plaintiffs’ constitutional rights. (ECF No. 35-1 at 24.) In opposition, 11 Plaintiffs do not cite evidence or case law and instead assert only that “[a]s discussed above, there 12 surely is such evidence.” (ECF No. 37 at 17.) 13 The basis for Plaintiffs’ Bane Act is unclear. Looking at the FAC, it appears the Bane Act 14 claim is based only on constitutional violations related to the unlawful search and seizure. (See 15 ECF No. 9 at 14–16.) There is no further clarification or discussion about the Bane Act claim in 16 Plaintiffs’ opposition. By only incorporating prior argument, Plaintiffs’ opposition is essentially 17 non-responsive and does not establish that Defendants had the necessary specific intent. See 18 Cobarrubia v. Edwards, No. 4:19-CV-07899-KAW, 2021 WL 4846948, at *3 (N.D. Cal. June 4, 19 2021) (noting the plaintiff’s failure to respond to the defendant’s argument on a particular issue 20 constituted abandonment of that issue). 21 Absent any evidence or argument establishing that Defendants had the specific intent to 22 violate Plaintiffs’ constitutional rights, the Court GRANTS Defendants’ motion for summary 23 judgment as to Claim Five. 24 E. Claim Six 25 In Claim Six, Plaintiffs allege trespass to land. (ECF No. 9 at 16.) “The essence of the 26 cause of action for trespass is an unauthorized entry onto the land of another.” Donahue Schriber 27 Realty Grp., Inc. v. Nu Creation Outreach, 232 Cal. App. 4th 1171, 1177–78 (citing Cassinos v. 28 Union Oil Co., 14 Cal. App. 4th 1770, 1778 (1993)) (internal quotation marks omitted). “The 1 elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the 2 defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for 3 the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a 4 substantial factor in causing the harm.” Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal. 5 App. 5th 245, 262 (2017). 6 Defendants argue Plaintiffs’ trespass to land claim fails because the deputies were invited 7 onto the property. (ECF No. 35-1 at 25.) Defendants further argue they are immune from 8 liability under California Government Code §§ 821.8 and 820.2. (Id.) 9 The Court has already found there are genuine disputes of material fact as to whether the 10 deputies lawfully entered Coleman’s property. Those factual disputes also preclude a finding that 11 the deputies are immune under § 821.8, which allows for immunity only if the entry is “expressly 12 or impliedly authorized by law.” Cal. Gov’t Code § 821.8. In addition, § 820.2, which creates 13 immunity for discretionary decisions, is inapplicable as it “applies only to policy decisions, not 14 operational decisions” like the deputies’ decision to conduct the search and seizure. Mendez v. 15 Cnty. of L.A., 897 F.3d 1067, 1084 (9th Cir. 2018) (citing Caldwell v. Montoya, 10 Cal. 4th 972, 16 981 (1995)). 17 Therefore, the Court DENIES Defendants’ motion for summary judgment as to Claim Six. 18 F. Claim Seven 19 In Claim Seven, Plaintiffs allege invasion of privacy. (ECF No. 9 at 16–17.) “To state a 20 claim for violation of the constitutional right of privacy, a party must establish: (1) a legally 21 protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and 22 (3) a serious invasion of the privacy interest.” Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 23 4th 1125, 1129 (2009). 24 Defendants argue Plaintiffs’ invasion of privacy claim fails because Plaintiffs “cannot 25 have an objective entitlement to privacy when they share a driveway easement with a neighbor.” 26 (ECF No. 35-1 at 26.) Defendants further argue the Schooleys had a possessory right in the 27 easement and Plaintiffs “all but invited the call to the Sheriff’s Department by engaging in 28 ongoing disputes and locking the gate.” (Id.) In addition, Defendants argue they are immune 1 from liability under California Government Code §§ 821.8 and 820.2. (Id.) 2 Defendants’ arguments are unpersuasive. Defendants fail to cite case law to support the 3 contention that Plaintiffs lost their expectation of privacy by virtue of sharing an easement with 4 the Schooleys or by engaging in property disputes. There is no evidence to suggest the easement 5 gave the Schooleys or anyone else unrestricted access to Plaintiffs’ property on the northern lot. 6 To the contrary, a reasonable juror could find that the ongoing property disputes and Coleman’s 7 efforts to lock the gate to the easement strengthen his reasonable expectation of privacy. Further, 8 as with the trespass claim, neither §§ 821.8 nor 820.2 provide immunity for liability under these 9 circumstances. 10 Thus, the Court DENIES Defendants’ motion for summary judgment as to Claim Seven. 11 G. Claim Eight 12 In Claim Eight, Plaintiffs allege conversion. (ECF No. 9 at 17–18.) “Conversion is the 13 wrongful exercise of dominion over the property of another. The elements of a conversion claim 14 are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s 15 conversion by a wrongful act or disposition of property rights; and (3) damages.” Welco 16 Electronics, Inc. v. Mora, 223 Cal. App. 4th 202, 208 (2014) (internal quotation marks omitted). 17 Defendants argue the conversion claim fails because Plaintiffs did not lawfully possess the 18 marijuana. (ECF No. 35-1 at 26.) Defendants cite evidence to support the contention that 19 Plaintiffs were not in compliance with the relevant Shasta Code Ordinances that prohibited 20 outdoor growing of marijuana and limited indoor grows to 12 plants. (Id.) In opposition, 21 Plaintiffs argue only that medical marijuana plants are presumed to be personal property — 22 apparently incorporating the arguments they made as to the Fifth and Fourth Amendment claims. 23 (ECF No. 37 at 19.) Plaintiffs do not address Defendants’ argument that they did not lawfully 24 possess the marijuana plants under Shasta County Ordinances. (See id.) 25 Plaintiffs’ conversion claim requires them to show that they were in lawful possession of 26 the marijuana. Schmidt, 808 F. Supp. 2d at 1253 (citing Moore v. Regents of Univ. of Cal., 51 27 Cal. 3d 120, 136 (1990)); see also Snowden v. Cnty. of Valaveras, No. 1:18-CV-01595-DAD- 28 SAB, 2019 WL 4829480, at *8 (E.D. Cal. Sept. 30, 2019) (“plaintiff’s state law conversion claim 1 fails to state a claim because she has not alleged facts that, if proven, would establish that she had 2 a legal right to possess the seized marijuana”) (citation and internal quotation marks omitted). 3 Plaintiffs have failed to do so. For their part, Defendants provide ample evidence that Plaintiffs’ 4 possession of marijuana was illegal under Shasta County Ordinances. 5 Thus, the Court GRANTS Defendants’ motion for summary judgment as to Claim Eight. 6 H. Claim Nine 7 In Claim Nine, Plaintiffs allege intentional infliction of emotional distress (“IIED”). (ECF 8 No. 9 at 18.) An IIED claim requires: (1) extreme and outrageous conduct by the defendant with 9 the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) 10 the plaintiff suffering severe or extreme emotional distress; and (3) actual and proximate 11 causation of the emotional distress by the defendant’s outrageous conduct. Hughes v. Pair, 46 12 Cal. 4th 1035, 1050 (2009). “A defendant’s conduct is outrageous when it is so extreme as to 13 exceed all bounds of that usually tolerated in a civilized community.” Id. (internal quotation 14 marks omitted). 15 Defendants argue the IIED claim fails because the deputies’ conduct was not extreme or 16 outrageous. (ECF No. 35-1 at 27.) In opposition, Plaintiffs assert — without citing any evidence 17 or case law — “there is a reasonable inference that the deputies intentionally engaged in a 18 warrantless search and seizure of Mr. Coleman’s property because he was a black man and they 19 capped it off with a threatening racial slur.” (ECF No. 37 at 19.) 20 Even if the Court accepts Plaintiffs’ argument, the deputies’ conduct was not “so extreme 21 as to exceed all bounds of that usually tolerated in a civilized community.” Hughes, 46 Cal. 4th 22 at 1050. As such, Plaintiffs’ IIED claim fails as a matter of law because no reasonable jury could 23 find that the deputies engaged in extreme and outrageous conduct. 24 Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to Claim 25 Nine. 26 I. Claim Eleven 27 In Claim Eleven, Plaintiffs allege interference with contractual advantage. (ECF No. 9 at 28 18–19.) To prevail on this claim, Plaintiffs must establish the following: “(1) a valid contract 1 between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s 2 intentional acts designed to induce a breach or disruption of the contractual relationship; (4) 3 actual breach or disruption of the contractual relationship; and (5) resulting damage.” Pacific Gas 4 and Elec. Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990); Gardner v. Shasta Cnty., No. 5 2:06-cv-0106-MCE-DAD, 2007 WL 3243847, at *6 (E.D. Cal. Nov. 1, 2007). 6 Defendants argue this claim fails because the deputies were unaware that Plaintiffs had 7 existing contractual relations with a third party. (ECF No. 35-1 at 28.) In opposition, Plaintiffs 8 cite Coleman’s declaration, which states Coleman asked the deputies to keep an accurate count of 9 the plants they were destroying because he was going to be unable to fulfill his contracts with 10 medical marijuana patients. (ECF No. 37 at 19.) Coleman further states the deputies laughed in 11 response and completed the destruction of the plants. (Id.) 12 The Court agrees with Plaintiffs that this evidence is sufficient to raise a genuine dispute 13 of material fact as to whether the deputies were aware Plaintiffs had existing contractual relations 14 with third parties. For the first time in reply, Defendants argue there is no evidence the deputies 15 knew the specific details of the contracts that would give the deputies the requisite intent to harm 16 the contracts. (ECF No. 39 at 15.) Defendants cite Davis v. Nadrich, 174 Cal. App. 4th 1, 10–11 17 (2009), to support their position but do not provide any meaningful analysis of the case. (Id.) 18 Based on the Court’s review, it appears Davis is factually distinct and does not hold that 19 Defendants must know the precise details of Plaintiffs alleged contracts to bring an interference 20 with contract claim. The Court finds Plaintiffs’ evidence provides at the very least a reasonable 21 inference that the deputies knew Plaintiffs had contracts with third parties, knew the contracts 22 involved providing those third parties with marijuana, and knew destroying the marijuana plants 23 would interfere with those contracts. 24 Therefore, the Court DENIES Defendants’ motion for summary judgment as to Claim 25 Eleven. 26 /// 27 /// 28 /// 1 V. CONCLUSION 2 For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part 3 | Defendants’ Motion for Summary Judgment (ECF No. 35) as follows: 4 1. The Court DENIES Defendants’ motion as to Claims One and Two against Estes and 5 Nunnelley; 6 2. The Court GRANTS Defendants’ motion as to Claims One and Two against the 7 County; 8 3. The Court DENIES Defendants’ motion as to Claim Three against Estes and 9 Nunnelley for Fourth Amendment violations; 10 4. The Court GRANTS Defendants’ motion as to Claim Three against Estes and 11 Nunnelley for Fifth and Fourteenth Amendment violations; 12 5. The Court GRANTS Defendants’ motion as to Claim Three against the County; 13 6. The Court GRANTS Defendants’ motion as to Claim Four; 14 7. The Court GRANTS Defendants’ motion as to Claim Five; 15 8. The Court DENIES Defendants’ motion as to Claim Six; 16 9. The Court DENIES Defendants’ motion as to Claim Seven; 17 10. The Court GRANTS Defendants’ motion as to Claim Eight; 18 11. The Court GRANTS Defendants’ motion as to Claim Nine; and 19 12. The Court DENIES Defendants’ motion as to Claim Eleven. 20 The parties are ORDERED to file a Joint Status Report not later than thirty (30) days of 21 | the electronic filing date of this Order indicating their readiness to proceed to trial and 22 || proposing trial dates. 23 IT IS SO ORDERED. 24 DATE: December 7, 2022 yy / ff 26 “ Mn Vishay 27 Troy L. Nuhlep ] United States District Judge 28