Jackson v. Target Corporation

• Court: District Court, N.D. California
• Decided: July 7, 2023
• Docket: 3:21-cv-08458
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 BRYON U. JACKSON, Case No. 21-cv-08458-LB

12 Plaintiff, ORDER GRANTING SUMMARY JUDGMENT BUT IDENTIFYING 13 v. PLAUSIBLE NEGLIGENCE CLAIM

14 TARGET CORPORATION, Re: ECF No. 64 15 Defendant. 16 17 INTRODUCTION 18 Plaintiff Bryon Jackson sued Target Corporation, claiming that a Target employee 19 intentionally hit him with a shopping cart, injuring his kidney.1 Target moved for summary 20 judgment on the grounds that the plaintiff cannot prove an intentional act, it in any event is not 21 vicariously liable for the intentional torts of its employees, and the plaintiff cannot recover 22 punitive damages.2 The court can decide the motion without oral argument, N.D. Cal. Civ. L.R. 23 7-1(b), and grants summary judgment on the assault and battery claims. 24 That said, the plaintiff — who is representing himself — plausibly pleads facts that, if true, 25 establish a claim of negligence. Federal courts must construe pro se complaints liberally. Hughes 26 27 1 Compl. – ECF No. 1 at 9–10. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 v. Rowe, 449 U.S. 5, 9 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040–41, 1043 (9th Cir. 2005) 2 (a pro se plaintiff need only provide defendants with fair notice of his claims and the grounds upon 3 which they rest; he need not plead specific legal theories so long as sufficient factual averments 4 show that he may be entitled to some relief). If the plaintiff wants to proceed on his negligence 5 claim, he can notify the court by July 13 by filing a one-page notice of his intent to do so. At the 6 July 20 case-management conference, the court will consider the next steps in the case, including 7 appointment of counsel. 8 STATEMENT 9 In his verified complaint, the plaintiff declares under penalty of perjury that the following facts 10 are true. On July 7, 2021, he went to a Starbucks at the Target store located at 2700 Fifth Street, 11 Alameda, California, to buy lunch. When he was there, an employee deliberately hit him with a 12 trolley cart, injuring his right kidney. He reported the incident and suffers pain to this day.3 13 Target’s in-store video-surveillance system has video footage of the incident. The camera has a 14 fish-eye lens aimed at the store’s entrance. The incident took place in the Starbucks area, shown in 15 the upper left corner of the film. The events at issue are distant but discernable in full-screen mode. 16 At 12:25:11 p.m., the plaintiff steps away from his place in line at Starbucks. As he is walking, 17 a cart moves into the camera zone and apparently hits him. Immediately before and at the moment 18 of contact, the plaintiff is looking ahead and possibly downwards; the cart comes from his left and 19 when it contacts him, he turns to his left and raises his hands. He then steps to the side to allow the 20 cart’s pusher, identified by Target as its employee Kimara Smith, to move past him. He follows 21 Ms. Smith as she walks away, out of camera sight. For the next fourteen minutes the plaintiff 22 walks around the coffee shop area, moving in and out of the far end of the camera’s vision. The 23 video shows him speaking to a female employee at 12:29 p.m., waiting at 12:30 p.m., speaking to 24 the same female employee at 12:31 p.m. and 12:35 p.m., and leaving the store at 12:39 p.m.4 25 26

27 3 Compl. – ECF No. 1 at 10. 1 The plaintiff described the incident in his deposition. He “went [to Target] to get lunch, and 2 [he] went to the Starbucks coffee shop.” He described what happened: “like somebody just exerted 3 a pressure to deliberately cause harm. It was, like, an increased velocity that was coming from the 4 chair. It was obvious that the person exerted that force to create some damage in me.” He “didn't 5 know [that Ms. Smith] was going to hit [him] with the cart.” He was standing still in line, looking 6 ahead at the barista. He believed the hit was intentional because he “went over to her and asked 7 her, are you crazy, and [he] yell[ed] at her and asked her if she’s crazy, and she said, get out of 8 here, [racial slur].” Although the defendant “yelled” his question, he believes it is “possible” 9 nobody else heard her comment, as she “just said it under her breath.” He had never met the 10 employee before.5 11 The parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636.6 The court has 12 diversity jurisdiction: the parties are diverse, and the amount in controversy exceeds $75,000. 13 28 U.S.C. § 1332(a).7 14 STANDARD OF REVIEW 15 The court must grant summary judgment where there is no genuine dispute as to any material 16 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Material facts are those that may 18 affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about a material fact is 19 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 20 party. Id. at 248–49. 21 The party moving for summary judgment has the initial burden of informing the court of the 22 basis for the motion and identifying portions of the pleadings, depositions, answers to 23 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material 24 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). To meet its burden, “the moving 25

26 5 Jackson Dep., Ex. B to Pedone Decl. – ECF No. 64-1 at 13 (p. 44:16–20), 14 (p. 47:16–19, 24–25), 15 (p. 48:8–12), 17 (p. 50:7–24), 19 (p. 67:13–24). 27 6 Consents – ECF Nos. 6, 12. 1 party must either produce evidence negating an essential element of the nonmoving party’s claim 2 or defense or show that the nonmoving party does not have enough evidence of an essential 3 element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz 4 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 5 2001) (“When the nonmoving party has the burden of proof at trial, the moving party need only 6 point out ‘that there is an absence of evidence to support the nonmoving party’s case.’”) (quoting 7 Celotex, 477 U.S. at 325). “Where the moving party will have the burden of proof on an issue at 8 trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other 9 than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 10 If the moving party meets its initial burden, then the burden shifts to the nonmoving party to 11 produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins. Co., 210 F.3d at 12 1103. “Once the moving party carries its initial burden, the adverse party may not rest upon the 13 mere allegations or denials of the adverse party’s pleading, but must provide affidavits or other 14 sources of evidence that set forth specific facts showing that there is a genuine issue for 15 trial.” Devereaux, 263 F.3d at 1076 (cleaned up). If the non-moving party does not produce 16 evidence to show a genuine issue of material fact, then the moving party is entitled to summary 17 judgment. Celotex, 477 U.S. at 322–23. 18 In ruling on a motion for summary judgment, the court does not make credibility 19 determinations or weigh conflicting evidence. Instead, it views the evidence in the light most 20 favorable to the non-moving party and draws all factual inferences in the non-moving party’s 21 favor. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); Ting 22 v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). 23 Federal courts must construe pro se complaints liberally. Hughes, 449 U.S. at 9; Hearns, 413 24 F.3d at 1040. A pro se plaintiff need only provide defendants with fair notice of his claims and the 25 grounds upon which they rest. Hearns, 413 F.3d at 1043. He need not plead specific legal theories 26 so long as sufficient factual averments show that he may be entitled to some relief. Id. at 1041. 27 1 ANALYSIS 2 The plaintiff claims that Target’s employee intentionally assaulted and battered him with the 3 shopping cart. Target moved for summary judgment, contending first that the undisputed facts do 4 not show an intentional tort by Ms. Smith because as to assault, the plaintiff did not apprehend the 5 incoming shopping cart, and as to both assault and battery, Ms. Smith did not have the requisite 6 intent. Target also argues that even if there is a genuine dispute about whether Ms. Smith 7 committed assault or battery, Target is not vicariously liable for its employee’s intentional tort 8 under these circumstances.8 The court grants summary judgment to Target because Target isn’t 9 vicariously liable for Ms. Smith’s conduct. 10 The first issue is whether the plaintiff’s evidence is sufficient to establish triable issues of fact 11 about whether Ms. Smith committed assault and battery against the plaintiff. (Even though this 12 issue is mooted by the conclusion that Target is not vicariously liable for Ms. Smith’s conduct, the 13 court explains the issue fully because that explanation informs the vicarious-liability analysis.) 14 The elements of assault are that (1) the defendant “acted, intending to cause harmful or 15 offensive contact,” (2) the plaintiff “reasonably believed that he was about to be touched in a 16 harmful or offensive manner,” (3) the plaintiff “did not consent to defendant’s conduct,” (4) the 17 plaintiff “was harmed or offended,” and (5) the defendant’s conduct “was a substantial factor in 18 causing [the] plaintiff’s harm.” Foley v. Bates, No. C07-0402 PJH, 2007 WL 1430096, at *6 (N.D. 19 Cal. May 14, 2007). 20 Regarding whether the plaintiff “reasonably believed that he was about to be touched in a 21 harmful or offensive manner,” he testified — in response to being asked whether he had ever seen 22 Ms. Smith before the incident — that he hadn’t and that he “didn’t know she was going to hit 23 [him] with the cart.”9 That statement doesn’t definitively resolve whether he was aware of the 24 incoming cart before it hit him, given the general nature of the question. Also, in his opposition, 25 the plaintiff says that he “saw with [his] own ‘[e]yes’” that Ms. Smith “exerted additional force” 26

27 8 Mot. – ECF No. 64. 1 on the cart before the contact. The plaintiff cites page sixty-one of his deposition transcript for this 2 fact, but neither party attached page sixty-one to their briefing.10 In theory, the court could ask the 3 parties to supplement the record with the full deposition transcript, in which case the plaintiff’s 4 testimony would amount to sufficient evidence for his assault claim to survive summary judgment. 5 Matsushita Elec. Indus. Co., 475 U.S. at 587–88 (at the summary-judgment stage, the court must 6 draw all factual inferences in the non-moving party’s favor). But as explained below, Target 7 would not be vicariously liable for Ms. Smith’s conduct anyway. 8 The second issue is whether Ms. Smith acted with the intent required for assault and battery. 9 The inquiry turns largely on whether a dispute of material fact is established by Ms. Smith’s 10 telling the plaintiff to “get out of here” and her use of a racial slur. 11 The elements of a claim of battery are (1) the defendant touched the plaintiff with the intent to 12 harm or offend the plaintiff, (2) the plaintiff did not consent to the touching, (3) the plaintiff was 13 harmed or offended by the touching, and (4) a reasonable person would have been offended by the 14 touching. So v. Shin, 212 Cal. App. 4th 652, 669 (2013) (citing CACI Jury Instr. 1300 (2013)); 15 Avina v. United States, 681 F.3d 1127, 1130–31 (9th Cir. 2012). 16 Regarding a defendant’s intent to harm or offend the plaintiff, courts have explained the 17 concepts of harmful and offensive contact. As for “harm,” “the least touching may constitute 18 battery. In other words, force against the person is enough; it need not be violent or severe, it need 19 not cause bodily harm or even pain, and it need not leave any mark.” People v. Mansfield, 200 20 Cal. App. 3d 82, 88 (1988). And “[a] touching is offensive if it offends a reasonable sense of 21 personal dignity.” Foley, 2007 WL 1430096, at *6. Courts also say that “the element of intent is 22 satisfied if the evidence shows [that the] defendant acted with a ‘willful disregard’ of the 23 plaintiff’s rights.” Ashcraft v. King, 228 Cal. App. 3d 604, 613 (1991). 24 Few cases involve circumstances where the evidence of intent is mostly a standalone comment 25 after the event giving rise to liability. Certainly, slurs can demonstrate racial animus. Usher v. City 26 of Los Angeles, 828 F.2d 556, 562 (9th Cir. 1987) (allegations that police officers directed racial 27 1 slurs at the plaintiff were sufficient to demonstrate racial animus). And generally speaking, 2 comments can constitute evidence of intent. Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 3 505–06 (9th Cir. 2016) (racially charged code words may provide evidence of discriminatory 4 intent). 5 As for whether the requisite intent can be inferred from the defendant’s post-incident words or 6 conduct, courts can look to “the rules of the criminal law . . . that define assault and battery” in 7 analyzing this and other aspects of the torts of assault and battery. Bartosh v. Banning, 251 Cal. 8 App. 2d 378, 387 (1967). In that regard, “[t]he intent with which an act is committed is a question 9 of fact, and may be inferred from the surrounding circumstances.” People v. Rupert, 20 Cal. App. 10 3d 961, 971 (1971); Cal. Pen. Code § 29.2(a) (“The intent or intention is manifested by the 11 circumstances connected with the offense.”). And “[i]n the crime[] of simple assault . . . , the jury 12 may infer from [the] defendant’s conduct that he entertained the necessary intent.” People v. 13 Hood, 1 Cal. 3d 444, 458 n.7 (1969). 14 A selection of authorities demonstrates the general principle that post-incident words or conduct 15 are valid evidence of intent. At least in Nevada, for example, “[t]he fact finder [evaluating a battery 16 claim] can consider post-incident conduct, such as a lack of remorse, an effort to conceal the 17 conduct, demeanor inconsistent with the defendant’s version of events, or an attempt to flee 18 police[,] as evidence of intent.” Jaross v. Phillips, No. 2:10-cv-01631-PMP, 2011 WL 3471865, *6 19 (D. Nev. Aug. 9, 2011) (collecting state cases). California courts have used similar reasoning. In 20 evaluating the crime of assault with a deadly weapon, for instance, the defendant’s post-incident 21 conduct “may throw light on his original intent.” See People v. Dodini, 51 Cal. App. 179, 180 22 (1921) (a defendant’s desisting based on a motive such as “remorse” could help reveal his “original 23 intent”). As a harsher example, a defendant’s “statements after [a] murder that he was angry with 24 the victim and wanted to kill her permit an inference of intent to inflict extreme pain.” People v. 25 Dalton, 7 Cal. 5th 166, 250 (2019) (citing People v. Cole, 33 Cal. 4th 1158, 1172, 1214 (2004)). 26 27 1 Here, the plaintiff testified that Ms. Smith said “get out of here, [racial slur]” shortly after 2 hitting the plaintiff with her shopping cart.11 This testimony is at least evidence that Ms. Smith 3 intended the contact. The plaintiff also testified that the cart accelerated before the contact.12 There 4 is thus a triable issue of fact about whether Ms. Smith acted with the requisite intent. 5 Granted, in between the shopping-cart contact and the alleged slur, the plaintiff walked over to 6 Ms. Smith, yelled at her, and asked her whether she was crazy. Thus, when Ms. Smith said “get 7 out of here, [slur],” she could have been reacting to the yelling rather than evincing any feeling she 8 had toward the plaintiff since before the contact.13 But at the summary-judgment stage, the court 9 cannot weigh conflicting evidence, must view the evidence in the light most favorable to the non- 10 moving party, and must draw all factual inferences in that party’s favor. Matsushita Elec. Indus. 11 Co., 475 U.S. at 587–88. 12 For the same reasons, the court does not view the video evidence as dispositive at this stage. 13 The video shows that the plaintiff walked into the path of Ms. Smith’s cart, but that does not 14 preclude the possibility that Ms. Smith recognized the impending collision and still intentionally 15 contacted the plaintiff with the cart.14 Id.; Campbell v. Feld Ent., Inc., 75 F. Supp. 3d 1193, 1208– 16 09, 1217–18 (N.D. Cal. 2014) (video footage was “ambiguous on [a given] point,” and “at the 17 summary judgment stage[,] the [c]ourt must draw all reasonable inferences in [the non-moving 18 party]’s favor,” so the court held that relatively slight bodily contact was enough for the plaintiff’s 19 assault and battery claims to survive summary judgment, given all the surrounding circumstances). 20 The next (and dispositive) issue is whether Target is vicariously liable for its employee’s 21 battery under these circumstances. 22 Under the doctrine of respondeat superior, “an employer may be held vicariously liable for 23 torts committed by an employee within the scope of employment.” Patterson v. Domino’s Pizza, 24 LLC, 60 Cal. 4th 474, 491 (2014). The doctrine applies to intentional torts: an employer is liable 25 26 11 Jackson Dep., Ex. B to Pedone Decl. – ECF No. 64-1 at 14 (p. 47:16–19). 12 Id. at 19 (p. 67:13–17). 27 13 Id. at 14 (p. 47:16–19). 1 for intentional torts (even crimes) if the acts fall within the scope of employment. Perez v. Van 2 Groningen & Sons, Inc., 41 Cal. 3d 962, 967 (1986). The employee does not need to have been 3 furthering the employer’s interests. Carr v. Wm. C. Crowell Co., 28 Cal. 2d 652, 656 (1946). But 4 the employer is not liable if the intentional act does not have a causal nexus to the employee’s 5 work. Id. at 656–57. 6 Torts are committed within the scope of employment when they are “‘engendered by’ or an 7 ‘outgrowth’ of [the] employment.” Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 291, 8 298 (1995). Vicarious liability is not imposed if the employee “substantially deviates from the 9 employment duties for personal purposes.” Farmers Ins. Grp. v. Cnty. of Santa Clara, 11 Cal. 4th 10 992, 1005 (1995). The question of whether an employee acted within the scope of his or her 11 employment is ordinarily a question of fact. Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 213 12 (1991). It becomes a question of law only “when the facts are undisputed and no conflicting 13 inferences are possible.” Id. Courts “look[] to the foreseeability of the employee’s conduct, 14 whether it be authorized or unauthorized, tortious or criminal, because the California rule reflects 15 the central justification for respondeat superior liability: that losses fairly attributable to an 16 enterprise — those which foreseeably result from the conduct of the enterprise — should be 17 allocated to the enterprise as a cost of doing business.” Xue Lu v. Powell, 621 F.3d 944, 948 (9th 18 Cir. 2010) (cleaned up). 19 On the one hand, the alleged battery here might be described as related to Ms. Smith’s 20 employment: it arose out of her pushing a shopping cart around the store, and Ms. Smith’s “entire 21 association with plaintiff” was because of “[her] employment.”15 Carr, 28 Cal. 2d at 656–57. 22 Also, Target’s “enterprise required an association of employees with third parties, attended by the 23 risk that someone might be injured.” Id. at 656. That a customer would be struck by a shopping 24 cart being pushed by an employee in a Target store is foreseeable to some degree. Palsgraf v. 25 26 27 15 Jackson Dep., Ex. B to Pedone Decl. – ECF No. 64-1 at 15 (p. 48:9–14) (the plaintiff had never seen 1 Long Island R.R. Co., 248 N.Y. 339, 334 (1928) (the risk reasonably perceived to exist defines the 2 duty to be obeyed). 3 But when “an employee inflicts an injury out of personal malice[] not engendered by the 4 employment,” the employer is not liable. Carr, 28 Cal. 2d at 656. As explained above, the notion 5 that Ms. Smith committed an intentional tort rests on her (alleged) post-incident, racist comment. 6 And that comment shows that Ms. Smith’s intent did not originate from her work duties. See id. at 7 654, 657 (employer liable where a coworker threw a hammer at the plaintiff as part of an 8 altercation between the two over how to go about their work of laying flooring). In Farmers Ins. 9 Grp., the California Supreme Court thoroughly illustrated this distinction: the employer is liable 10 only where the “assault [was] precipitated by a work-related dispute.” 11 Cal. 4th at 1004–09 11 (“[T]he mere fact that an employee has an opportunity to abuse facilities or authority necessary to 12 the performance of his or her duties does not render the employer vicariously liable.”) (collecting 13 cases “to compare the types of situations in which the respondeat superior doctrine has and has not 14 been applied”). Here, the assault was precipitated only by (alleged) racism or personal malice. The 15 court thus grants Target’s motion for summary judgment on the assault and battery claims, on the 16 ground that Target is not vicariously liable for Ms. Smith’s conduct. 17 The next issue is the plaintiff’s claim for punitive damages. The court dismissed the claim 18 previously with leave to amend. The plaintiff did not amend. Target in any event is not liable: 19 An employer shall not be liable for [punitive] damages pursuant to subdivision [§ 3294(a)] based upon acts of an employee of the employer, unless 20 the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or 21 authorized or ratified the wrongful conduct for which the damages are awarded or 22 was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, 23 ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. 24 25 Cal. Civ. Code § 3294(b). Malice is “conduct which is intended by the defendant to cause injury to 26 the plaintiff or despicable conduct which is carried on by the defendant with a willful and 27 conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). 1 No facts suggest that Target had advance notice of its employee’s unfitness or that a corporate 2 officer ratified, authorized, or participated in the alleged conduct. The court thus grants Target 3 summary judgment on the claim for punitive damages. 4 A final issue is whether the facts support a claim for negligence. 5 Federal courts must construe pro se complaints liberally. Hughes, 449 U.S. at 9; Hearns, 413 6 F.3d at 1040. A pro se plaintiff need only provide defendants with fair notice of his claims and the 7 grounds upon which they rest. Hearns, 413 F.3d at 1043. He need not plead specific legal theories 8 so long as sufficient factual averments show that he may be entitled to some relief. Id. at 1041. 9 A plaintiff may amend his complaint with the court’s leave, and “[t]he court should freely give 10 leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend may granted as late as 11 during or after trial. Fed. R. Civ. P. 15(b). Under Rule 15, “leave to amend . . . should be granted 12 more liberally to pro se plaintiffs.” Lira v. Herrera, 427 F.3d 1164, 1176 (9th Cir. 2005) (cleaned 13 up). For example, where a plaintiff raises a new claim at the summary-judgment stage, it “lies 14 within the discretion of the district court” to allow him to amend the complaint accordingly. Brass 15 v. Cnty. of Los Angeles, 328 F.3d 1192, 1197 (9th Cir. 2003); Desertrain v. City of Los Angeles, 754 16 F.3d 1147, 1154–55 (9th Cir. 2014) (listing factors to consider when construing a new argument 17 raised in a motion for summary judgment as a motion for leave to amend under Rule 15). 18 The elements of a negligence claim are (1) the existence of a duty to exercise due care, (2) 19 breach of that duty, (3) causation, and (4) damage. Merrill v. Navegar, Inc., 26 Cal. 4th 465, 500 20 (2001). 21 The plaintiff claimed only assault and battery. But this case is about a collision between the 22 plaintiff and a shopping cart being pushed by a Target employee as the two crossed paths. The 23 plaintiff plausibly alleges negligence, and he argued negligence in his opposition.16 He has not 24 amended before, there is no bad faith, and much of the discovery has already been completed in this 25 relatively simple case. Thus, if the plaintiff wants to proceed on his negligence claim, he can notify 26

27 16 Opp’n – ECF No. 67 at 4 (“Plaintiff’s specific evidence to prove ‘Intent’ or Willful/Recklessly Disregard or Negligently . . . .”), 5 (“This act was a Reckless disregard and negligence for the Plaintiff ] the court by July 13 by filing a one-page notice of his intent to do so. The court will construe this 2 || notice as a supplement to the existing complaint and will not require further amendment. 3 4 CONCLUSION 5 The court grants Target summary judgment on the assault and battery claims, but the plaintiff 6 || plausibly pleads a negligence claim. The plaintiff must notify the court by July 13 whether he 7 || wants to proceed on that claim. As previously ordered, the court will hold a case-management 8 conference on July 20. 9 This resolves ECF No. 64. 10 IT IS SO ORDERED. Ld 11 Dated: July 7, 2023 D LAUREL BEELER United States Magistrate Judge 2 «4 o

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