Marin v. Catano

• Court: District Court, S.D. California
• Decided: April 14, 2023
• Docket: 3:21-cv-01445
• Status: Unknown

Opinion

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7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 MEL MARIN, Case No.: 21cv1445-JO-MDD 12 Plaintiff, 13 14 v. ORDER DISMISSING IN PART 15 PLAINTIFF’S COMPLAINT KRISTINE CATANO; ADELA DE LA 16 TORRE; VANESSA RUIZ; and JOSEPH I. CASTRO, in their official and personal 17 capacities; and SAN DIEGO STATE 18 UNIVERSITY, 19 Defendants. 20 21 On November 23, 2021, pro se Plaintiff Mel Marin filed a second amended 22 complaint alleging that Defendants discriminated and retaliated against him while he was 23 a student at San Diego State University (“SDSU”). Dkt. 18 (“SAC”). Because he is 24 proceeding in forma pauperis (“IFP”), the Court screened his complaint. For the reasons 25 stated below, Plaintiff’s second amended complaint is dismissed in part under 28 U.S.C. 26 § 1915(e)(2). 27 /// 28 /// 1 I. BACKGROUND 2 Plaintiff Marin,1 a former student at SDSU, initiated this action on August 13, 2021, 3 alleging that SDSU and certain of its employees, Kristine Catano, Adela De La Torre, and 4 Joseph Castro (the “Individual Defendants”), violated Plaintiff’s constitutional and 5 contractual rights. Dkt. 1. Plaintiff also filed a motion to proceed IFP. Dkt. 2. On August 6 23, 2021, the Court granted Plaintiff’s motion to proceed IFP, but dismissed Plaintiff’s 7 complaint under 28 U.S.C. § 1915(e)(2) after finding that Plaintiff’s complaint failed to 8 state a claim under Federal Rule of Civil Procedure 12(b)(6). Dkt. 6. On the same day, 9 Plaintiff filed his first amended complaint. Dkt. 7. Then, on November 23, 2021, Plaintiff 10 filed his second amended complaint. SAC. 11 In the SAC, Plaintiff alleges that SDSU and its faculty violated his rights on several 12 discrete occasions. First, Plaintiff alleges that Defendants discriminated against him when 13 they refused to give him certain test-taking accommodations. According to the SAC, 14 Plaintiff has an eye injury that requires a magnifying glass and causes him to read slowly. 15 SAC ¶¶ 7, 16. In February 2020, Plaintiff enrolled in two classes at SDSU––a “viruses” 16 class and a “neurology” class––and was allegedly told he “should have no problem [taking 17 those classes] based on his prior science courses.” See id. When Plaintiff took exams in 18 those two courses, he requested the following test-taking accommodations: (1) extra time, 19 (2) a seat separated from other students, and (3) to use his magnifying glass. Id. ¶¶ 8, 16– 20 17. Plaintiff alleges both of his teachers refused his accommodation requests. See id. 21 ¶¶ 10, 16–17. After Plaintiff failed the exams, he attempted to drop the classes, but 22

23 1 The Court notes that Plaintiff is a serial pro se filer that has been cautioned by courts across the 24 United States against bringing frivolous claims. See, e.g., Marin v. Tarr, 83 Fed. Appx. 946 (9th Cir. 25 2003) (noting that Marin’s contentions lacked merit and his litigation activities were numerous and abusive); see also, e.g., Marin v. Am. Self-Storage, 2007 WL 4287832, at *1 (D. Ariz. Nov. 30, 2007); 26 Marin v. McClincy, 15 F. Supp. 3d 602, 608 (W.D. Pa. 2014); Marin v. Escondido Care Ctr., 2012 WL 5463688, at *3 (S.D. Cal. Nov. 7, 2012). 27

28 1 Defendant Catano allegedly would not allow him to do so. See id. ¶¶ 19–20. Defendant 2 Catano also allegedly failed to inform Plaintiff that he had a right to reasonable 3 accommodations for his disability. See id. Based on these facts, Plaintiff brings claims 4 under Title II of the Americans with Disabilities Act, 42 U.S.C. § 121012, and § 504 of the 5 Rehabilitation Act, 29 U.S.C. § 794, against all Defendants (“First Claim”). Plaintiff also 6 brings a claim against the Individual Defendants alleging that they violated his Fourteenth 7 Amendment right to due process (“Second Claim”). 8 Second, Plaintiff alleges that, after he complained about the above discrimination, 9 Defendants retaliated against him in violation of the First and Fourteenth Amendments. 10 On March 30, 2020, Plaintiff allegedly submitted a petition complaining that his “virus 11 professor” discriminated against him, but he “did not hear back” about his complaint. See 12 id. ¶¶ 23, 25. Plaintiff then filed the same complaint about the “virus professor” with 13 Defendant De La Torre but did not receive an answer. See id. ¶¶ 25–26. According to 14 Plaintiff, Defendants retaliated against him for these complaints in several ways, including 15 by (1) not telling him that SDSU’s science labs had reopened during the COVID pandemic; 16 (2) refusing to refund his tuition; (3) placing a hold on his account because of his overdue 17 fees, and thus preventing him from enrolling in more classes; (4) ignoring his request for 18 his academic records; and (5) telling him that COVID-related medical exemptions needed 19 to be filed online when, in fact, paper applications existed. See id. ¶¶ 26, 31. Because 20 Plaintiff was not allowed to enroll in more classes due to overdue fees, he is no longer a 21 student at SDSU. See id. ¶¶ 31–32. Based on these facts, Plaintiff claims that all 22 Defendants retaliated against him in violation of the First and Fourteenth Amendments 23 (“Fourth Claim”). 24 Third, Plaintiff claims that Defendants violated his due process rights by not 25 allowing him to file an exemption from SDSU’s “void vaccine rule” on paper. On July 27, 26 2021, SDSU enacted a policy requiring students to either provide proof of COVID 27 vaccination or a medical exemption to attend classes in person. See id. ¶ 68. Plaintiff 28 alleges that he attempted to file an exemption in August 2021, but was “told to do it through 1 the computer.” See id. ¶¶ 31, 69. Plaintiff claims that Defendants lied to him because a 2 paper form was available, but that he did not discover the paper form until after the deadline 3 and therefore, was prevented from enrolling in more classes. See id. ¶ 31. Based on these 4 facts, Plaintiff brings a Fourteenth Amendment claim against all Defendants for “forced 5 implementation of a void vaccine rule,” and requests declaratory relief and damages 6 (“Third Claim”). Plaintiff seeks a declaratory judgment against SDSU “that the 7 vaccination rule is void as applied to this plaintiff,” and seeks damages against the 8 Individual Defendants in their individual capacities for implementing the vaccination 9 policy. Id. ¶ 72. 10 Fourth, Plaintiff alleges that Defendants violated his due process rights when they 11 refused to give him all of his academic records. On August 4, 2021, Plaintiff allegedly 12 requested copies of his SDSU records. See id. ¶ 88. Defendants apparently gave him some 13 of his records, but not all, and “require[d] [him] to jump hoops of training with college IT 14 personnel” to obtain certain records. See id. ¶ 90. Based on these facts, Plaintiff claims 15 that all Defendants violated his Fourteenth Amendment right to due process (“Fifth 16 Claim”). See id. ¶ 91. 17 Finally, Plaintiff alleges that Defendants violated the implied covenant of good faith 18 and fair dealing when they required him to use a school email address, rather than a 19 personal email address, and when they required him to fill out school forms on the 20 computer, rather than on paper. Plaintiff claims that the “student-college relationship is 21 one of contract,” see id. ¶ 99, and that Defendants violated the implied covenant of good 22 faith and fair dealing to that contract when they “forc[ed] all students to communicate with 23 the college on the college’s email system rather than through personal email addresses.” 24 See id. ¶ 100. Plaintiff further alleges that Defendants had a good-faith duty to provide 25 him with a paper form so that he could file a medical exemption and that they violated that 26 duty by “forcing” him to use a computer application that “did not work.” See id. ¶¶ 102– 27 03, 107. Based on these facts, Plaintiff brings a breach of contract claim against all 28 Defendants (“Sixth Claim”). 1 II. LEGAL STANDARDS 2 Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must screen an IFP complaint and 3 sua sponte dismiss it to the extent it is frivolous, malicious, fails to state a claim upon which 4 relief may be granted, or seeks damages from defendants who are immune. See Lopez v. 5 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); see also Rhodes v. Robinson, 6 621 F.3d 1002, 1004 (9th Cir. 2010) (same with respect to 28 U.S.C. § 1915A(a) & (b)(1)). 7 “The standard for determining whether a plaintiff has failed to state a claim upon which 8 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 9 Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 10 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) 11 (“Failure to state a claim under § 1915A incorporates the familiar standard applied in the 12 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 13 12(b)(6) requires that a complaint “contain sufficient factual matter . . . to state a claim to 14 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 15 quotation marks omitted). While detailed factual allegations are not required, “[t]hreadbare 16 recitals of the elements of a cause of action, supported by mere conclusory statements, do 17 not suffice” to state a claim. Iqbal, 556 U.S. at 678. “A claim has facial plausibility when 18 the plaintiff pleads factual content that allows the court to draw the reasonable inference 19 that the defendant is liable for the misconduct alleged.” Id. 20 III. DISCUSSION 21 Upon screening Plaintiff’s complaint, the Court identifies the following deficiencies. 22 First, Plaintiff does not have standing to seek an injunction based on Defendants’ alleged 23 violations of the ADA (First Claim), nor to seek declaratory relief for SDSU’s vaccination 24 policy (Third Claim). Second, Eleventh Amendment immunity bars Plaintiff’s claims 25 against SDSU and the Individual Defendants in their official capacities (Second through 26 Fifth Claims). Third, Plaintiff fails to state claims that the Individual Defendants 27 discriminated and retaliated against him because Plaintiff does not allege facts that each 28 Individual Defendant was involved in the alleged constitutional violations. (Second and 1 Fourth Claims). Fourth, Plaintiff fails to state a claim that the deprivation of his school 2 records amounts to a due process violation (Fifth Claim). Finally, Plaintiff fails to state a 3 breach of the implied covenant of good faith and fair dealing because he has not sufficiently 4 alleged the existence of a contract (Sixth Claim). The Court addresses each of these issues 5 in turn. 6 A. Plaintiff Does Not Have Standing to Seek Either an Injunction or a Declaratory 7 Judgment 8 The Court first addresses whether Plaintiff has standing to seek the injunctive relief 9 in his First Claim and the declaratory relief in his Third Claim. A litigant only has standing 10 “to have the court decide the merits of the dispute” when he has been injured. Warth v. 11 Seldin, 422 U.S. 490, 498 (1975). A plaintiff must have an “injury in fact”—“an invasion 12 of a legally protected interest which is (a) concrete and particularized, and (b) actual or 13 imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 14 560 (1992). For injunctive or declaratory relief, this means Plaintiff must show that he 15 faces a “real or immediate threat . . . that he will again be wronged in a similar way.” City 16 of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); see also Sellers v. Regents of the Univ. 17 of Cal., 432 F.2d 493, 500 (9th Cir.1970) (holding that an actual controversy was absent 18 where a request for a declaratory judgment invalidating a university policy was brought by 19 plaintiffs who did not intend to use those facilities in the future). 20 The Court finds that Plaintiff does not have standing to seek either injunctive or 21 declaratory relief because there is no imminent threat that he will be harmed in the future 22 by the college and its staff. Plaintiff seeks two equitable remedies in the SAC: (1) an 23 injunction that SDSU provide him with test-taking accommodations and with a paper 24 medical-exemption application, and (2) a declaration that SDSU’s “vaccination rule is void 25 as applied to this plaintiff.” SAC ¶¶ 46, 72. While Plaintiff alleges that he previously 26 suffered from these policies, he has not alleged that he is in danger of being harmed in the 27 future. Plaintiff no longer attends SDSU and does not allege that he has plans to return. 28 See id. ¶¶ 31–32. That simple fact obviates any danger that SDSU will force a vaccination 1 policy on him or refuse him accommodations in the future. In fact, Plaintiff alleges that 2 SDSU barred him from enrolling in further classes because of overdue fees, and therefore, 3 it is not clear that he could return to SDSU even if he wanted to. See id. ¶ 31. Because 4 there is no imminent threat that Plaintiff will be harmed by SDSU’s allegedly unlawful 5 policies in the future, the Court finds that Plaintiff lacks standing to seek injunctive and 6 declaratory relief. Plaintiff’s request for injunctive relief in his First Claim and Plaintiff’s 7 request for declaratory relief in his Third Claim are dismissed. 8 B. The Eleventh Amendment Bars Plaintiff’s Claims Against a State University and 9 its Employees 10 The Court next considers whether the Eleventh Amendment bars Plaintiff’s claims 11 against SDSU and its employees. Unless an exception applies,2 the Eleventh Amendment 12 prohibits suits by private parties against the state. Pennhurst State Sch. & Hosp. v. 13 Halderman, 465 U.S. 89, 100 (1984). Defendant SDSU is an “instrumentalit[y] of the 14 state” protected by Eleventh Amendment immunity, as are its employees when acting in 15 their official capacities. See Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982); 16 Pennhurst, 465 U.S. at 102. Eleventh Amendment immunity also extends to state 17 employees in their individual capacities where the state is the real party in interest. 18 Pennhurst, 465 U.S. at 102 (“a suit against state officials [] is in fact a suit against a State” 19 where the court’s order would operate against the state); see also, e.g., Dawavendewa v. 20 Salt River Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1160 (9th Cir. 2002) (noting 21 22

23 2 There are three exceptions to Eleventh Amendment immunity, none of which are applicable here: 24 (1) the state has expressly waived its right not to be sued, (2) Congress has specifically passed a law 25 allowing suit, or (3) a party seeks prospective injunctive relief for an ongoing violation of federal law under the Ex Parte Young doctrine. In re Lazar, 237 F.3d 967, 976 (9th Cir. 2001); Yakama Indian Nation 26 v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999); Doe v. Regents of the Univ. of California, 891 F.3d 1147, 1153 (9th Cir. 2018). As to the third exception, the Ex Parte Young doctrine 27 applies when a private party seeks prospective injunctive relief against a state official in her official capacity for an ongoing violation of federal law. Doe v. Lawrence Livermore Nat. Lab’y, 131 F.3d 836, 28 1 an order operates against the state “when the requested relief will require affirmative 2 actions by the sovereign”). 3 First, Defendants’ Eleventh Amendment immunity bars Plaintiff’s Third Claim that 4 SDSU’s vaccination policy violates the Fourteenth Amendment. See SAC ¶¶ 67–72. 5 Because SDSU is a state college, and thus an arm of the state protected by Eleventh 6 Amendment immunity, Plaintiff cannot pursue injunctive relief against it. Hayakawa, 682 7 F.2d at 1350. By the same token, Plaintiff’s claim against the Individual Defendants for 8 implementing SDSU’s vaccination policy is also barred by the Eleventh Amendment. 9 Plaintiff’s claim against these individuals for official actions on behalf of the state college, 10 see SAC ¶¶ 67–72, “is in fact [a claim] against the [state].” Pennhurst, 465 U.S. at 101; 11 see also Dawavendewa, 276 F.3d at 1160. Any order that the Individual Defendants 12 violated Plaintiff’s constitutional rights by implementing SDSU’s vaccination policy 13 would be a finding that the state college’s policy is unconstitutional. Thus, the state is the 14 real party in interest here. Accordingly, the Court dismisses Plaintiff’s Third Claim 15 regarding SDSU’s vaccination policy as barred by the Eleventh Amendment. 16 For the same reasons described above, Plaintiff’s Second, Fourth and Fifth Claims 17 alleging various constitutional violations are also dismissed to the extent they are brought 18 against Defendant SDSU and against the Individual Defendants in their official capacities. 19 Hayakawa, 682 F.2d at 1350 (California state colleges and universities are arms of the 20 state); Dittman v. State of California, 191 F.3d 1020, 1025–26 (9th Cir. 1999) (noting that 21 California has not waived its Eleventh Amendment immunity to constitutional claims 22 under § 1983); Jackson, 682 F.2d at 1349–50 (9th Cir. 1982) (employees of the state are 23 immune under the Eleventh Amendment when acting in their official capacities). 24 C. Failure to State a Claim 25 Plaintiff appears to allege that school officials (1) discriminated against him by 26 refusing to provide test-taking accommodations and then retaliated against him after he 27 complained (Second and Fourth Claims), (2) violated his due process rights by failing to 28 provide him with his school records (Fifth Claim), and (3) breached the implied covenant 1 of good faith and fair dealing by requiring him to use a school email address and fill out 2 forms on the computer (Sixth Claim). For the reasons discussed below, the Court dismisses 3 each of the above causes of action for failure to state a claim under Rule 12(b)(6). 4 1. Plaintiff Fails to State Discrimination and Retaliation Claims Against School 5 Officials 6 Plaintiff’s discrimination and retaliation claims (Second and Fourth Claims) against 7 the Individual Defendants fail because he has not alleged that these school officials were 8 directly involved in harming him. In order for individual defendants to be liable for 9 damages under § 1983, each must have caused or personally participated in the violation 10 of a plaintiff’s constitutional rights. Gilbrook v. City of Westminster, 177 F.3d 839, 854 11 (9th Cir. 1999). Personal participation includes affirmative acts, participation in another’s 12 affirmative acts, or the failure to perform a legally required affirmative act. Lacey v. 13 Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (citation omitted). 14 Plaintiff does not allege that any of the school officials named as Individual 15 Defendants personally participated in the violation of Plaintiff’s constitutional rights. 16 Plaintiff generally alleges that “[t]hey . . . fail[ed] to notify Mel he had a right to additional 17 test taking time,” and “they came immediately after he complained, refusing to refund his 18 tuition, placing a permanent hold against his name.” SAC ¶¶ 55, 83 (emphasis added). 19 Plaintiff does not specify whether “they” includes any of the school officials named as 20 Individual Defendants. Even if “they” refers to the Individual Defendants in this action, 21 he does not identify which individual committed each allegedly unlawful act. Therefore, 22 it is unclear whether or to what extent Individual Defendants Catano, De La Torre, and 23 Castro personally participated in the alleged violations of Plaintiff’s constitutional rights, 24 as required to state a claim against them under § 1983. See generally id. Because Plaintiff 25 does not adequately allege the personal participation of the Individual Defendants, his 26 claims against them for retaliation and discrimination are dismissed. 27 /// 28 /// 1 2. Plaintiff Fails to Plead Deprivation Under the Fourteenth Amendment 2 Plaintiff’s Fourteenth Amendment claim regarding school records (Fifth Claim) fails 3 because he does not identify the specific records that Defendants denied him. The 4 Fourteenth Amendment prohibits deprivation of “life, liberty, or property, without due 5 process of law.” U.S. Const., amend. XIV. Applying this prohibition requires a “two- 6 stage analysis.” Ingraham v. Wright, 430 U.S. 651, 672 (1977). Courts “must first ask 7 whether the asserted individual interests are encompassed within the Fourteenth 8 Amendment’s protection of ‘life, liberty or property’; if protected interests are implicated, 9 [courts] then must decide what procedures constitute ‘due process of law.’” Id. (citations 10 omitted). Here, the Court cannot determine whether Plaintiff’s deprivation involves life, 11 liberty, or property because Plaintiff does not say what documents were withheld from him. 12 Plaintiff claims that he requested access to a copy of his college records but appears to 13 admit that he was given some documents and asked to work with “college IT personnel” 14 to obtain others. SAC ¶ 90. Because Plaintiff does not specify what documents he 15 requested and what documents he received, the SAC does not clearly state what Plaintiff 16 was deprived of under the Fourteenth Amendment. Furthermore, Plaintiff’s allegations 17 suggest that SDSU attempted to give him his documents and therefore, the SAC does not 18 clearly state that a deprivation occurred in the first place. Accordingly, Plaintiff’s Fifth 19 Claim regarding college records does not adequately plead a due process violation under 20 the Fourteenth Amendment and is dismissed. 21 3. Plaintiff Fails to Plead a Contract With SDSU 22 Plaintiff complains that Defendants violated contractual obligations when they 23 required him to use a school email address and fill out an online, medical-exemption form 24 instead of a paper form (Sixth Claim). Because he fails to allege that a contract between 25 him and SDSU ever existed, he cannot state a cause of action for breach of the implied 26 covenant of good faith and fair dealing. To state an implied covenant claim under 27 California law, a plaintiff must first plausibly allege the “existence of a contractual 28 relationship.” Smith v. City & Cnty. of San Francisco, 225 Cal. App. 3d 38, 49 (1990); see 1 also Kashmiri v. Regents of Univ. of California, 156 Cal. App. 4th 809, 826 (2007) (noting 2 that courts “have been reluctant to apply contract law to general promises or expectations” 3 but have “not been hesitant to apply contract law when the educational institution makes a 4 specific promise”). Plaintiff’s only reference to a contract in the SAC is that “the basic 5 student-college relationship is one of contract.” Id. ¶ 99. Plaintiff has not identified any 6 specific contract or promise that Defendant SDSU made. Plaintiff’s general allegation that 7 all interactions between a college and its students are ones of contract is insufficient to 8 plead the existence of a contract. Plaintiff has thus not sufficiently pleaded that 9 Defendants’ requirements for email usage and online medical exemptions were in violation 10 of an implied covenant arising out of a contract. See id. ¶¶ 99–107. Therefore, Plaintiff’s 11 Sixth Claim is dismissed. 12 4. Leave to Amend 13 The Court will grant Plaintiff leave to amend the complaint. When a complaint fails 14 to state a claim, a court may grant a plaintiff leave to amend to cure its deficiencies. Federal 15 Rule 15(a) provides that a district court should “freely give leave [to amend] when justice 16 so requires.” Fed. R. Civ. P. 15(a). A district court may deny leave to amend when a 17 proposed amendment would be futile. Chappel v. Lab. Corp. of America, 232 F.3d 719, 18 725–26 (9th Cir. 2000). Amendment is futile “if no set of facts can be proved under the 19 amendment to the pleadings that would constitute a valid and sufficient claim or defense.” 20 Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Although the above 21 claims and portions thereof fail to state a claim, it is not clear at this juncture that Plaintiff 22 could not bring those claims if he properly pleaded the requisite elements against the 23 specific Defendants. Accordingly, the Court will grant Plaintiff 30 days from the date of 24 this order to file an amended complaint. 25 5. CONCLUSION AND ORDER 26 For the reasons set out above, the Court DISMISSES Plaintiff’s Second, Third, 27 Fourth, Fifth, and Sixth Claims in full. Plaintiff’s First Claim for damages as alleged 28 against SDSU may proceed. l The Court directs the Clerk to (1) provide Plaintiff with a blank U.S. Marshal Form 2 ||285 for each Defendant named in the second amended complaint [Dkt. 18]; (2) provide 3 || Plaintiff with a certified copy of this order; and (3) provide Plaintiff with a certified copy 4 ||of the second amended complaint and the summons so that he may serve SDSU. Upon 5 ||receipt of this “IFP Package,” Plaintiff must complete the Form 285 as completely and 6 accurately as possible, include an address where SDSU may be served, see S.D. Cal. Civ. 7 || L.R. 4.1.c, and return it to the United States Marshal according to the instructions the Clerk 8 || provides in the letter accompanying the IFP package. The U.S. Marshal shall serve a copy 9 || of the second amended complaint and summons upon SDSU as directed by Plaintiff on the 10 |} USM Form 285. All costs of that service will be advanced by the United States. See 28 11 |]U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 12 13 IT IS SO ORDERED. 14 15 || Dated: April 14, 2023 16 17 18 19 “Jinsook Ohta 30 United States District Judge 21 22 23 24 25 26 27 28 19