Michael Kenna v. Liveauctioneers, Inc.

• Court: District Court, C.D. California
• Decided: November 15, 2022
• Docket: 2:21-cv-05862
• Status: Unknown

Opinion

Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 1 of 16 Page ID #:440 'O' 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 21-05862-RSWL-AGRx 12 MICHAEL KENNA, an individual, ORDER re: MOTION FOR 13 DEFAULT JUDGMENT [42] Plaintiff, 14 v. 15 LIVEAUCTIONEERS, Inc., et 16 al., 17 Defendant. 18 19 Plaintiff Michael Kenna initiated this Action 20 against Defendants Liveauctioneers, Inc., Live 21 Auctioneers, LLC, and Black River Auction, LLC alleging 22 copyright infringement and vicarious and/contributory 23 copyright infringement.1 24 Currently before the Court is Plaintiff’s Motion 25 for Default Judgment against Defendant Black River 26 1 Both Liveauctioneers, Inc. and Live Auctioneers, LLC were, 27 upon stipulation, dismissed with prejudice from this Action. ECF 28 No. 40. 1 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 2 of 16 Page ID #:441

1 Auction, LLC on the copyright infringement claim

2 (“Motion”) [42]. Having reviewed all papers submitted

3 pertaining to the Motions, the Court NOW FINDS AND RULES 4 AS FOLLOWS: the Court GRANTS the Motion. 5 I. BACKGROUND 6 A. Factual Background 7 The Complaint alleges: 8 Plaintiff Michael Kenna (“Plaintiff”) is an 9 individual residing in Seattle, Washington. Compl. ¶ 4, 10 ECF No. 1. Plaintiff is an accomplished and acclaimed 11 photographer known for his black and white landscapes. 12 Id. ¶ 9. Plaintiff is the sole owner of original 13 photographs (the “Subject Photographs”) that are 14 registered with the United States Copyright Office under 15 registration numbers: VA0002251320, VA0002246059, 16 VA0002238659, and TX0004141083. Id. ¶ 10. Plaintiff’s 17 prints retail from $2,500.00 to $15,000.00 from 18 authorized galleries. See generally Decl. of Michael 19 Kenna (“Kenna Decl.”) ¶ 4, ECF No. 42-1. 20 Black River Auction, LLC (“Defendant”) is a New 21 Jersey company who infringed on Plaintiff’s copyrighted 22 works. See Compl. ¶¶ 7-8; ECF No. 12. Defendant 23 infringed on Plaintiff’s Subject Photographs without his 24 consent by selling fourteen of them for $861 on Live 25 Auctioneers, LLC’s website. Compl. ¶ 12; Pl.’s Mot. for 26 Default J. (“Mot.”), Ex. B, ECF No. 42-3. Defendant 27 viewed Plaintiff’s Subject Photographs and then 28 identically copied them to sell online. Id. ¶ 14. 2 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 3 of 16 Page ID #:442

1 Plaintiff is entitled to disgorgement of Defendant’s

2 profits attributed to the Subject Photographs. Id. ¶

3 18. 4 B. Procedural Background 5 On July 20, 2021, Plaintiff filed its Complaint 6 alleging a claim for copyright infringement and 7 vicarious and/contributory copyright infringement.2 On 8 July 28, 2022, Plaintiff amended its Complaint by 9 replacing the fictitious name DOE 1 with the true name 10 Black River Auction, LLC. ECF No. 12. 11 On March 4, 2022, Plaintiff served Defendant by 12 leaving the Summons at Defendant’s residence with 13 someone of suitable age and discretion who resided at 14 the residence. POF, ECF No. 28. Defendant had until 15 March 25, 2022, to answer the Complaint. Id. Defendant 16 did not answer or otherwise respond to the Complaint by 17 March 25, 2022. Pursuant to Plaintiff’s request, the 18 Clerk entered default as to Defendant on May 24, 2022, 19 per Federal Rules of Civil Procedure 55(a). ECF No. 38. 20 Defendants Live Auctioneers, LLC. and Liveauctioneers, 21 Inc. were dismissed by stipulation. ECF No. 39. On 22 September 6, 2022, Plaintiff filed the instant Motion 23 for Default Judgment. ECF No. 42. On the same day 24 September 6, 2022, Plaintiff served Defendant with 25 notice of the entry of default judgment and notice of 26 2 Plaintiff requests the court enter default against 27 Defendant as to Plaintiff’s copyright infringement claim. Pl.’s 28 Mot. for Default J. (“Mot.”) 1:3-4, ECF No. 42. 3 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 4 of 16 Page ID #:443

1 the Motion. See Mot. iii:1-3. Defendant did not file

2 an Opposition. Plaintiff seeks the following damages:

3 statutory damages totaling $150,000; costs incurred in 4 the litigation totaling $750.01; and attorneys’ fees 5 totaling $6,600. Id. at ii:19-26. 6 II. DISCUSSION 7 A. Legal Standard 8 The granting of default judgment is within the 9 discretion of the district court. Aldabe v. Aldabe, 616 10 F.2d 1089, 1092 (9th Cir. 1980); see Fed. R. Civ. P. 55. 11 Procedural and substantive requirements must be 12 satisfied. 13 Procedurally, the requirements set forth in Federal 14 Rules of Civil Procedure (“FRCP” or “Rule”) 54(c) and 15 55(b), and Local Rule 55-1 must be met. See Vogel v. 16 Rite Aid Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal 17 2014). Local Rule 55-1 provides: 18 When an application is made to the Court for a 19 default judgment, the application shall be 20 accompanied by a declaration in compliance with 21 F.R.Civ.P. 55(b)(1) and/or (2) and include the 22 following: (a) When and against what party the 23 default was entered; (b) The identification of 24 the pleading to which default was entered; (c) 25 Whether the defaulting party is an infant or 26 incompetent person, and if so, whether that 27 person is represented by a general guardian, 28 committee, conservator or other representative; 4 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 5 of 16 Page ID #:444

1 (d) That the Service Members Civil Relief Act,

2 50 U.S.C. App. § 521, does not apply; and (e)

3 That notice has been served on the defaulting 4 party, if required by F.R.Civ.P. 55(b)(2). 5 L.R. 55-1. 6 Courts should also consider the following factors 7 in determining whether to grant a motion for default 8 judgment: “(1) the possibility of prejudice to 9 plaintiff, (2) the merits of plaintiff's substantive 10 claims, (3) the sufficiency of the complaint, (4) the 11 sum of money at stake in the action, (5) the possibility 12 of a dispute concerning the material facts, (6) whether 13 defendant's default was the product of excusable 14 neglect, and (7) the strong public policy favoring 15 decisions on the merits.” Eitel v. McCool, 782 F.2d 16 1470, 1471-72 (9th Cir. 1986). 17 If the court determines that the defendant is in 18 default, “‘the factual allegations of the complaint, 19 other than those relating to damages, are taken as 20 true.’” Televideo Sys., Inc. v. Heidenthal, 826 F.2d 21 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United 22 Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)). 23 Additionally, “[w]hen entry of judgment is sought 24 against a party who has failed to plead or otherwise 25 defend, a district court has an affirmative duty to look 26 into its jurisdiction over both the subject matter and 27 the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 28 1999). 5 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 6 of 16 Page ID #:445

1 If the Court determines that the allegations in the

2 complaint are sufficient to establish liability, the

3 plaintiff must provide proof of all damages sought in 4 the complaint, and the Court must determine the “amount 5 and character” of the relief that should be awarded. 6 Vogel, 992 F. Supp. 2d at 1005-06 (citations omitted). 7 “A default judgment must not differ in kind from, or 8 exceed in amount, what is demanded in the pleadings.” 9 Fed. R. Civ. P. 54(c). 10 B. Discussion 11 1. Jurisdiction and Service of Process 12 a. Subject Matter Jurisdiction 13 In considering whether to enter default judgment, 14 the Court first determines whether it has jurisdiction 15 over the subject matter and the parties. See In re 16 Tuli, 172 F.3d at 712. The Court has subject matter 17 jurisdiction over this action. Plaintiff’s claim for 18 copyright infringement arises under the Copyright Act of 19 1976, 17 U.S.C. § 101 et seq. District courts have 20 original jurisdiction of any civil action “arising under 21 any Act of Congress relating to . . . copyrights.” 28 22 U.S.C. § 1338(a). Therefore, the Court has federal 23 question jurisdiction over this claim under 28 U.S.C. §§ 24 1331, 1338(a). 25 b. Personal Jurisdiction 26 Personal jurisdiction is also satisfied. While 27 Defendant is a limited liability company in New Jersey, 28 specific personal jurisdiction is demonstrated, as 6 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 7 of 16 Page ID #:446

1 Plaintiff alleges that the copyright infringement giving

2 rise to this action took place in this forum. See

3 Compl. ¶ 3. 4 c. Service of Process Is Proper 5 Service of process is met because Plaintiff served 6 Defendant with the Summons and Complaint on March 4, 7 2022, as evidenced by the Proof of Service. ECF No. 28. 8 Plaintiff served the Summons and Complaint on 9 Defendant’s agent’s residence, or usual place of abode, 10 with the agent’s sister in compliance with Federal Rule 11 of Civil Procedure 4. Id.; See ECF No. 38. 12 2. Procedural Requirements 13 Plaintiff has met the procedural requirements for 14 default judgment pursuant to Federal Rules of Civil 15 Procedure 55 and Central District Local Rule 55-1. 16 Under Rule 55(a), the Clerk properly entered default 17 against Defendant on May 24, 2022 [38]. Plaintiff moved 18 pursuant to Rule 55(b) for entry of default judgment on 19 September 6, 2022 [42]. 20 Plaintiff has also established the Local Rule 55-1 21 requirements. Per the Motion, the Clerk entered default 22 against Defendant on May 24, 2022, as to Defendant; 23 Defendant is neither a minor, nor an incompetent person 24 nor in the military service or otherwise exempted under 25 the Soldier’s and Sailor’s Civil Relief Act of 1940, the 26 predecessor to the Servicemembers Civil Relief Act; and 27 Defendant was served with the Motion for Default 28 Judgment on September 6, 2022. ECF No. 43. 7 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 8 of 16 Page ID #:447

1 3. Eitel Factors

2 Plaintiff has sufficiently set forth the seven

3 Eitel factors: “(1) the possibility of prejudice to the 4 plaintiff; (2) the merits of plaintiff’s substantive 5 claims; (3) the sufficiency of the complaint; (4) the 6 sum of money at stake in the action; (5) the possibility 7 of a dispute concerning the material facts; (6) whether 8 the default was due to excusable neglect; and (7) the 9 strong public policy underlying the Federal Rules of 10 Civil Procedure favoring decisions on the merits.” 11 Eitel, 782 F.2d at 1471-72. 12 a. Risk of Prejudice to Plaintiff 13 “The first Eitel factor considers whether a 14 plaintiff will suffer prejudice if a default judgment is 15 not entered.” Vogel, 992 F. Supp. 2d at 1007. 16 This factor weighs in favor of granting default 17 judgment. Defendant neither filed nor requested an 18 extension to submit an opposition. As such, Defendant 19 has failed to participate in the litigation and, without 20 default judgment, Plaintiff would be unable to halt 21 Defendant’s infringement or recoup damages for harm 22 suffered. IO Grp., Inc. v. Jordon, 708 F. Supp. 2d 989, 23 997 (N.D. Cal. 2010). 24 b. Sufficiency of the Complaint and Likelihood 25 of Success on the Merits 26 The second and third Eitel factors consider the 27 merits of the plaintiff’s substantive claims and the 28 sufficiency of the complaint. “Under an [Eitel] 8 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 9 of 16 Page ID #:448

1 analysis, [these factors] are often analyzed together.”

2 Dr. JKL Ltd. V. HPC IT Educ. Ctr., 749 F. Supp. 2d 1038,

3 1048 (N.D. Cal. 2010). Plaintiff has asserted a 4 meritorious claim for willful copyright infringement. 5 To plead a viable copyright infringement claim 6 pursuant to 17 U.S.C. § 501, Plaintiff must establish 7 “(1) ownership of a valid copyright, and (2) copying of 8 the constituent elements of the work that are original.” 9 Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 10 340, 361 (1991). Absent direct evidence of copying, the 11 second prong is satisfied by showing that “the infringer 12 had access to the work and that the two works are 13 substantially similar.” Shaw v. Lindheim, 919 F.2d 14 1353, 1356 (9th Cir. 1990). In some cases, “absent 15 evidence of access, a ‘striking similarity’ between the 16 works may give rise to a permissible inference of 17 copying.” Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th 18 Cir. 1987). 19 Plaintiff owns four valid copyrights for the 20 Subject Photographs with the following registration 21 numbers: VA0002251320, VA0002246059, VA0002238659, and 22 TX0004141083. Compl. ¶10. Therefore, the first prong 23 is satisfied. 24 In addition, Defendant likely copied the Subject 25 Photographs. Plaintiff is an accomplished and 26 critically acclaimed photographer. Id. ¶ 9. Moreover, 27 Defendant marketed the Subject Photographs alongside 28 Plaintiff’s name on the website. See, Ex. B. 9 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 10 of 16 Page ID #:449

1 Additionally, Plaintiff alleges that Defendants

2 willfully copied, reproduced, displayed, and distributed

3 the Subject Photographs without Plaintiff’s consent. 4 Id. ¶ 12. The Subject Photographs appear to be 5 identical copies of Plaintiff’s original work. See Exs. 6 A, B. Therefore, Defendant clearly had access to the 7 Subject photographs given that the works on the website 8 are strikingly similar to Plaintiff’s photographs. 9 Plaintiff has thus adequately pled that Defendants 10 infringed upon his copyright and entry of default is 11 favored. Dr. JKL Ltd., 749 F. Supp. 2d at 1049. 12 c. Sum of Money at Stake in the Action 13 “Under the [fourth] Eitel factor, the court must 14 consider the amount of money at stake in relation to the 15 seriousness of Defendant’s conduct.” PepsiCo, Inc. v. 16 Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1176 (C.D. Cal. 17 2002). The Court will review declarations, 18 calculations, and other damages documentation to 19 determine whether the sum of money at stake is 20 appropriate. HICA Educ. Loan Corp. v. Warne, No. 11-CV- 21 04287-LHK, 2012 WL 1156402, at *3 (N.D. Cal. Apr. 6, 22 2012). 23 Here, Plaintiff requests $150,000 in statutory 24 damages pursuant to 17 U.S.C. § 504(c); $6,600 in 25 attorneys’ fees; and $750.01 in recoverable costs. Mot. 26 1:10-13. 27 The Copyright Act permits a copyright owner to 28 recover “statutory damages for all infringements 10 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 11 of 16 Page ID #:450

1 involved in the action...in a sum of not less than $750

2 or more than $30,000 as the court considers just.” 17

3 U.S.C. § 504(c)(1). However, “[i]n a case where . . . 4 the court finds . . . that infringement was committed 5 willfully, the court in its discretion may increase the 6 award of statutory damages to a sum of not more than 7 $150,000” for each infringement. 17 U.S.C. § 504(c)(2). 8 Plaintiff seeks $150,000 in statutory damages for 9 the two hundred infringed photographs. The Complaint 10 sufficiently pleads that Defendant willfully infringed 11 on the Subject Photographs because Defendant “willfully 12 copied, reproduced, displayed, and distributed the 13 Subject Photographs.” Compl. ¶ 12. The Court 14 recognizes that Plaintiff did not have the opportunity 15 to conduct full discovery regarding damages due to 16 Defendant’s default. As discussed below in this Order, 17 the requested $150,000 does not outpace the 18 egregiousness and willfulness of Defendant’s conduct, 19 considering that Defendant infringed on two hundred of 20 Plaintiff’s photographs and marketed the Subject 21 Photographs on its website alongside Plaintiff’s name 22 and the photographs’ original titles. See Ex. B. Thus, 23 this factor weighs towards granting this Motion. 24 d. The Possibility of a Dispute Concerning the 25 Material Facts 26 The fifth Eitel factor examines the likelihood of a 27 dispute between the parties regarding the material facts 28 in the case. A defendant is “deemed to have admitted 11 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 12 of 16 Page ID #:451

1 all well-pleaded factual allegations” in the complaint

2 upon entry of default. DirecTV, Inc. v. Hoa Huynh, 503

3 F.3d 847, 851 (9th Cir. 2007). 4 This factor weighs towards granting default 5 judgment. There is a low possibility of dispute as the 6 Complaint aptly demonstrates that the works are 7 substantially similar and that the Subject Photos were 8 distributed and sold by the Defendant. See generally 9 Compl. Additionally, due to Defendant’s lack of 10 response after default was entered against him, he has 11 failed to dispute any material facts. 12 e. The Possibility of Excusable Neglect 13 Excusable neglect considers factors such as 14 “prejudice . . ., the length of the delay and its 15 potential impact on judicial proceedings, the reason for 16 the delay, including whether it was within the 17 reasonable control of the movant, and whether the movant 18 acted in good faith.” J.L. v. Moreno Valley Unified 19 Sch. Dist., No. CV 09-1978 ODW (PJWx), 2010 WL 1708839, 20 at *1 (C.D. Cal. Apr. 20, 2010) (internal quotation 21 marks and citations omitted). 22 Excusable neglect is negligible, as Defendant 23 received the Summons, Complaint, and instant Motion. 24 Defendant failed to either oppose the Motion or request 25 an extension to file an opposition. Thus, this factor 26 weighs in favor of default. 27 /// 28 /// 12 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 13 of 16 Page ID #:452

1 f. Public Policy Favoring Decisions on the

2 Merits

3 The Ninth Circuit has stated that “[c]ases should 4 be decided upon their merits whenever reasonably 5 possible.” Eitel, 782 F.2d at 1472. However, “this 6 preference, standing alone, is not dispositive.” 7 PepsiCo, 238 F. Supp. 2d at 1177. The copyright 8 infringement claim cannot be adjudicated, as Defendant 9 failed to Answer or appear in the action. While this 10 factor may weigh against entering default judgment, the 11 Court nonetheless will grant the Motion in light of the 12 remaining factors. 13 In total, the Eitel factors weigh towards granting 14 default judgment. 15 4. Character and Amount of Plaintiff’s Recovery 16 Plaintiff requests $150,000 total statutory 17 damages, attorneys’ fees totaling $6,600, and $750.01 in 18 recovery costs. The Court takes up the validity of each 19 request in turn. 20 a. Statutory Damages 21 17 U.S.C. § 504 provides, in relevant part: “an 22 infringer of copyright is liable for either – (1) the 23 copyright owner’s actual damages and any additional 24 profits of the infringer . . . or (2) statutory 25 damages.” 17 U.S.C. § 504(a). A “copyright owner may 26 elect . . . to recover . . . an award of statutory 27 damages . . . in a sum of not less than $750 or more 28 than $30,000 as the court considers just.” 17 U.S.C. § 13 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 14 of 16 Page ID #:453

1 504(c)(1). “In a case where the copyright owner

2 sustains the burden of proving, and the court finds,

3 that infringement was committed willfully, the court in 4 its discretion may increase the award of statutory 5 damages to a sum of not more than $150,000.” 17 U.S.C. 6 § 504(c)(2). 7 In exercising its discretion, “the court can 8 consider such factors as: “(1) the expenses saved and 9 the profits reaped; (2) the revenues lost by the 10 plaintiff; (3) the value of the copyright; (4) the 11 deterrent effect on others besides the defendant; (5) 12 whether the defendant’s conduct was innocent or willful; 13 (6) whether a defendant has cooperated in providing 14 particular records from which to assess the value of the 15 infringing material produced; and (7) the potential for 16 discouraging the defendant.” Columbia Pics. Film Prod. 17 Asia Ltd. V. Uth, CIV S-06-1054 FCD DAD, 2007 WL 36283, 18 at *3 (E.D. Cal. Jan. 4, 2007). 19 Plaintiff’s proposed statutory damages of $150,000 20 is a reasonable request. Plaintiff alleged that it 21 would have cost Defendant $2500 per photograph to obtain 22 Plaintiff’s work. Mot. 11:1-3. Because Defendant sold 23 at least fourteen of the Subject Photographs, this 24 accounts for $35,000 in lost revenue. See id. at 11:3- 25 5. 26 “To prove ‘willfulness’ under the Copyright Act, 27 the plaintiff must show (1) that the defendant was 28 actually aware of the infringing activity, or (2) that 14 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 15 of 16 Page ID #:454

1 the defendant's actions were the result of ‘reckless

2 disregard’ for, or ‘willful blindness’ to, the copyright

3 holder's rights.” Louis Vuitton Malletier, S.A. v. 4 Akanoc Solutions, Inc., 658 F.3d 936, 944 (9th Cir. 5 2011). Here, Defendant’s website clearly displayed 6 Plaintiff’s name and the works’ titles alongside the 7 Subject Photographs. See Compl., Ex. B. The images 8 evidence that Defendant at least should have known that 9 the photos belonged to Plaintiff Michael Kenna. 10 Plaintiff has thus sufficiently pled willful 11 infringement of Plaintiff’s copyright. Considering the 12 degree of Defendant’s willfulness, $150,000 is 13 reasonable, particularly because Defendant infringed on 14 two hundred of Plaintiff’s photographs and Plaintiff 15 lost at least $35,000 in revenue for the fourteen 16 photographs Defendant sold. Mot. 11:1-5. Pursuant to 17 17 U.S.C. § 504(c)(2), the Court does not disturb 18 Plaintiff’s request for $150,000 statutory damages. 19 5. Attorneys’ Fees and Costs 20 The court, in its discretion, may award costs and 21 reasonable attorneys’ fees to the prevailing party, 22 pursuant to section 505 of the Copyright Act. 17 U.S.C. 23 § 505. Central District Local Rule 55-3 provides a 24 schedule of attorneys’ fees applicable to a default 25 judgment if an applicable statute provides for the 26 recovery of attorneys’ fees; as previously mentioned, 17 27 U.S.C. § 505 of the Copyright Act allows for attorneys’ 28 fees. 15 Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 16 of 16 Page ID #:455

1 For judgments over $100,000, like the $150,000 the

2 Court has awarded in statutory damages, the total is

3 “$5,600 plus 2% of the amount over $100,000;” that is, 4 $6,600. C.D. Cal. R. 55-3. Additionally, pursuant to 5 17 U.S.C. § 505, the Court grants recovery costs of 6 $750.01. Id. 7 III. CONCLUSION 8 Based on the foregoing, the Court GRANTS 9 Plaintiff’s Motion for Default Judgment against 10 Defendant for the sole claim of copyright infringement. 11 In sum, Plaintiff has sufficiently pled willful 12 copyright infringement and is awarded $157,350.01: 13 $150,000 in statutory damages under 17 U.S.C. § 504(c); 14 $6,600 in attorneys’ fees pursuant to Local Rule 55-3; 15 and $750.01 in costs pursuant to 17 U.S.C. § 505. 16 IT IS SO ORDERED. 17 18 DATED: November 15, 2022 /s/Ronald S.W. Lew _____ HONORABLE RONALD S.W. LEW 19 Senior U.S. District Judge 20 21 22 23 24 25 26 27 28 16