(PC)Spears v. Chang

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN LOUIS SPEARS, Case No.: 1:22-cv-00726-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART 13 v. DEFENDANTS’ MOTION TO DISMISS

14 FRANK CHANG, (Doc. 31)

15 Defendant. 14-DAY OBJECTION DEADLINE

16 Clerk of the Court to Assign District Judge

18 Plaintiff John Louis Spears is proceeding pro se and in forma pauperis in this civil rights 19 action brought pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 On March 4, 2024, Defendant Chang filed a motion to dismiss Plaintiff’s complaint. (Doc. 22 31.) Following a stay of these proceedings, Plaintiff filed an opposition (Doc. 39), and Defendant 23 replied (Doc. 44). 24 II. PLAINTIFF’S CLAIMS 25 Plaintiff alleges an Eighth Amendment deliberate indifference to serious medical needs 26 claim against Defendant Chang. He states his finger was severed in an accident on February 2, 27 2017, and Chang and medical staff were alerted that Plaintiff was “en route via medical transport 1 improperly storing Plaintiff’s severed finger “in a urine sample cup filled with salin[e] solution,” 2 resulting in Plaintiff’s further significant, “unnecessary, and wanton infliction of pain.” (Id.) He 3 contends Chang’s action caused him permanent injury and irreparable harm, and the permanent 4 loss of his finger. (Id.) Plaintiff contends that when his amputated finger was placed in the saline 5 solution, “it destroyed the blood vessels,” making reattachment impossible. (Id.) 6 At screening, the Court found: 7 Here, Plaintiff has established the first objective prong—a serious medical need—as treatment for a severed or amputated finger is a 8 medical condition injury that a reasonable doctor or patient would find important and worthy of comment or treatment and significantly 9 affects an individual’s daily activities. Colwell, 763 F.3d at 1066. As to the second subjective prong—demonstrating that Chang knew 10 Plaintiff faced a substantial risk of serious harm and that Chang disregarded that risk by failing to take reasonable measures to abate 11 it—liberally construed, Plaintiff’s complaint meets this test. Plaintiff contends Chang knew Plaintiff was in route for treatment of a 12 severed finger, and that in treating Plaintiff prior to Plaintiff being transported to Mercy Hospital for further treatment, Chang failed to 13 take reasonable measures to abate the risk faced by Plaintiff by using improper methods to store Plaintiff’s severed finger, making surgical 14 reattachment impossible. Farmer, 511 U.S. at 835. 15 (Doc. 13 at 5.) 16 III. LEGAL STANDARDS 17 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 18 “failure to state a claim upon which relief can be granted.” And “the question whether [a] claim is 19 barred by the statute of limitations … should ... be raised through a Rule 12(b)(6) motion to 20 dismiss for failure to state a claim.” See Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 21 1206 n.2 (9th Cir. 1995); Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 n.1 (9th Cir. 22 1987) (a statute of limitations defense may be raised in a motion to dismiss if the running of the 23 statute is apparent from the face of the complaint). 24 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro 25 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is 26 generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint, 27 and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 1 proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged 2 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 3 1988) (citation omitted). 4 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 5 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 6 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court 7 “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light 8 most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 9 (9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners 10 liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 11 2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s 12 factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). 13 IV. SUMMARY OF THE PARTIES’ BRIEFING 14 Defendant’s Motion to Dismiss (Doc. 31) 15 Defendant contends that the claims and issues litigated in a state court proceeding are 16 identical to the claims asserted in this action, barring Plaintiff’s operative complaint by the 17 doctrines of res judicata and collateral estoppel. Because Plaintiff’s injury occurred on February 18 2, 2017, his May 25, 2022,1 the complaint is also barred by the applicable statute of limitations. 19 Plaintiff’s Opposition (Doc. 39) 20 Plaintiff contends the state court dismissal “was not due to a failure to state a viable 21 Eighth Amendment deliberate indifference claim,” but because Defendant contended there was 22 no evidence to support his claim. Because the dismissal was without prejudice, Plaintiff contends 23 he was able to refile the action in this Court and applying “collateral estoppel/res judicata … 24 would be poor, cursory, and unfair.” He asserts that because this Court “has established that there 25 was in fact an Eighth Amendment claim established and violation under the law,” that 26 “demonstrates that the [state] court erred in judgment, poor decision making, and [governing] 27 1 Plaintiff’s complaint is signed and dated May 25, 2022, and was filed with the Court on June 2, 2022. 1 law.” Further, Plaintiff contends a review of the state court claims will reveal he did not have a 2 full and fair opportunity to litigate his claims. Finally, Plaintiff contends this action is not barred 3 by the statute of limitations because he is entitled to equitable tolling. 4 Defendant’s Reply (Doc. 44) 5 Defendant contends the doctrines of res judicata and collateral estoppel apply, and 6 Plaintiff is not entitled to equitable tolling because he did not pursue his rights diligently, fails to 7 establish extraordinary circumstances, and did not act in good faith. 8 V. REQUEST FOR JUDICIAL NOTICE 9 Defendant asks the Court to take judicial notice of (1) a first amended complaint filed July 10 9, 2018, in Kings County Superior Court case number 18C0034; (2) an order sustaining demurrer 11 entered November 7, 2018, in that same action; and (3) Plaintiff’s opposition to Defendant’s 12 demurrer filed September 30, 2018, in the state court action. (Doc. 31-2.) Plaintiff did not oppose 13 or otherwise address Defendant’s request for judicial notice. 14 A court may take judicial notice of facts “not subject to reasonable dispute” because they 15 are either “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of 16 accurate and ready determination by resort to sources whose accuracy cannot reasonably be 17 questioned.” Fed. R. Evid. 201. The Court may take judicial notice of public records that are not 18 subject to dispute. See Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (a 19 court may take judicial notice of “information [that] was made publicly available by government 20 entities” where “neither party disputes the authenticity ... or the accuracy of the information”). It 21 may also take judicial notice of its own records or those maintained in other federal or state 22 courts. Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take 23 judicial notice of “documents on file in federal or state courts”); Chandler v. United States, 378 24 F.2d 906, 909 (9th Cir. 1967) (“[A] federal district court can take judicial notice of its own 25 records, and this is the established rule”). 26 The Court recommends granting Defendant’s request for judicial notice of the first 27 amended complaint filed July 9, 2018, the opposition to demurrer filed September 30, 2018, and 1 Superior Court case number 18C0034. Judicial notice should be taken as to the records’ 2 authenticity and existence but not as to the parties’ interpretations of them or as to the truth of the 3 matters stated therein to the extent they are reasonably disputed. See Tinoco v. San Diego Gas & 4 Elec. Co., 327 F.R.D. 651, 657 (S.D. Cal. 2018) (“‘While matters of public record are proper 5 subjects of judicial notice, a court may take notice only of the authenticity and existence of a 6 particular [record], not the veracity or validity of its contents’”). Accordingly, judicial notice will 7 be taken of the authenticity and existence of those records. 8 VI. DISCUSSION 9 A. Preclusion Principles Apply to Plaintiff’s Claim 10 Although res judicata is an affirmative defense that typically rests on facts outside the 11 complaint, the Ninth Circuit has routinely held that a res judicata defense may be raised in a 12 motion to dismiss under Rule 12(b)(6) so long as it does not depend on disputed issues of fact. 13 Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984); see also Bayone v. Baca, 130 F. App'x 14 869, 872 n.5 (9th Cir. 2005) (“We have held that the affirmative defense of res judicata may be 15 raised in a motion to dismiss under Rule 12(b)(6)”). 16 Under the Full Faith and Credit Act, “judicial proceedings ... shall have the same full faith 17 and credit in every court within the United States and its Territories and Possessions as they have 18 by law or usage in the courts of such State, Territory or Possession from which they are taken.” 19 28 U.S.C. § 1738. Under the doctrine of res judicata, or claim preclusion, a final judgment 20 forecloses “successive litigation of the very same claim, whether or not relitigation of the claim 21 raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U.S. 742, 748 (2001). By 22 “preclud[ing] parties from contesting matters that they have had a full and fair opportunity to 23 litigate,” the doctrine of claim preclusion protects against “the expense and vexation of attending 24 multiple lawsuits,” and “conserve[es] judicial resources, and foste[rs] reliance on judicial action 25 by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 26 153-154 (1979). 27 Federal courts must look to state preclusion law when determining the claim-preclusive 1 1986). “Under California law, ‘[a] valid judgment on the merits in favor of a defendant serves as 2 a complete bar to further litigation on the same cause of action.’” Id. at 851 (citing Slater v. 3 Blackwood, 15 Cal.3d 791, 795 (1976)). In California, the prerequisite elements for applying the 4 doctrine of res judicata are: “‘(1) A claim or issue raised in the present action is identical to a 5 claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment 6 on the merits; and (3) the party against whom the doctrine is being asserted was a party or in 7 privity with a party to the prior proceeding. [Citations.]’” Boeken v. Philip Morris USA, Inc., 48 8 Cal.4th 788, 797 (2010) (citing People v. Barragan, 32 Cal.4th 236, 252-53 (2004)). 9 “[C]ollateral estoppel [(issue preclusion)] applies to preclude an issue adjudicated in an 10 earlier proceeding if: (1) the issue was necessarily decided at the previous proceeding and is 11 identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final 12 judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party 13 or in privity with a party at the first proceeding.” Granite Rock Co. v. Int'l Bhd. of Teamsters, 14 Freight, Constr., Gen. Drivers, Warehousemen & Helpers, Local 287 (AFL-CIO), 649 F.3d 1067, 15 1070 (9th Cir. 2011) (citing Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th 16 Cir. 2006)). 17 The Same Claim and Issue Were Presented in the State Court 18 “California has consistently applied the ‘primary rights’ theory, under which the invasion 19 of one primary right gives rise to single cause of action.” Slater v. Blackwood, 15 Cal.3d 791, 795 20 (1975). “‘[I]f two actions involve the same injury to the plaintiff and the same wrong by the 21 defendant then the same primary right is at stake even if in the second suit the plaintiff pleads 22 different theories of recovery, seeks different forms of relief and/or adds new facts supporting 23 recovery.’” Gonzales v. California Department of Corrections, 739 F.3d 1226, 1233 (9th Cir. 24 2014) (quoting Eichman v. Fotomat Corp., 147 Cal.App.3d 1170 (Cal. Ct. App. 1983)); accord 25 McLain v. Apodaca, 793 F.2d 1031, 1033-34 (9th Cir. 1986). Stated differently, “A claim is the 26 ‘same claim’ if it is derived from the same ‘primary right,’ which is ‘the right to be free from a 27 particular injury, regardless of the legal theory on which liability for the injury is based.’” MHC 1 (citation omitted). 2 A review of the complaint filed in the state court action reveals the claim presented in that 3 action involves the same primary right. (Cf. Doc. 31-3 at 5-11 to Doc. 1.) Plaintiff alleged that 4 due to Chang’s deliberate indifference to his serious medical need, his severed finger could not be 5 surgically reattached following an injury occurring February 2, 2017. Thus, each claim concerns 6 “the same injury to the plaintiff and the same wrong by the defendant.” Gonzales, 739 F.3d at 7 1233. Moreover, the same issue was presented in the state court action. Granite Rock Co., 649 8 F.3d at 1070. 9 A Final Judgment on the Merits Was Issued 10 For res judicata to apply, the claim must have been adjudicated on the merits in the earlier 11 suit. A final decision on the merits “includes any prior adjudication of an issue in another action 12 that is determined to be sufficiently firm to be accorded conclusive effect.” Citizens for Open 13 Access etc. Tide, Inc. v. Seadrift Assn., 60 Cal. App. 4th 1053, 1065 (Cal. Ct. App. 1998). Claim 14 preclusion requires a final judgment on the merits. “Dismissal with prejudice” is interchangeable 15 with “final judgment on the merits.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002); 16 see also Semtek Int'l Inc. v. Lockhead Martin Corp., 531 U.S. 497, 505 (2001). A dismissal 17 without prejudice is not an adjudication on the merits and does not have res judicata effect. See 18 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990); see also In re Marino, 181 F.3d 19 1142, 1144 (9th Cir. 1999). A dismissal for failure to state a claim constitutes as a final judgment 20 on the merits. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995); Stewart, 297 F.3d at 21 957. 22 Here, the Kings County Superior Court issued its Order Sustaining Defendant Chang’s 23 Demurrer to Plaintiff’s First Amended Complaint Without Leave to Amend on November 7, 24 2018. (Doc. 31-4.) In relevant part,2 the state court found Plaintiff failed “to state a viable claim 25 for Eighth Amendment deliberate indifference.” (Id. at 5.) The state court’s order is an 26 adjudication on the merits. Plaut, 514 U.S. at 228; Stewart, 297 F.3d at 957; Morris v. Tehama 27 2 The state court also determined that Plaintiff’s “medical malpractice cause of action against defendant Chang was 1 County, 795 F.2d 791, 794 n.3 (9th Cir. 1986) (citing Goddard v. Security Title Ins. & Guarantee 2 Co., 14 Cal.2d 47, 52 (1939) (holding that a judgment given after sustaining a general demurrer 3 on grounds of substance, rather than on formal or technical defects, is a judgment on the merits 4 and has a res judicata effect)); Granite Rock Co., 649 F.3d at 1070; see also Hammler v. Davis, 5 No. 2:14-cv-2073 MCE AC P, 2016 WL 336193, at *2 n.3 (E.D. Cal. Jan. 28, 2016) (“The 6 sustaining of a demurrer may be construed as an adjudication on the merits for purposes of res 7 judicata”). 8 Both Actions Involve the Same Parties 9 There is no dispute that the state court action and this case involve the same parties, 10 Plaintiff and Defendant Chang. 11 Plaintiff Had a Full and Fair Opportunity to Litigate 12 “[T]he party against whom preclusion is urged must have had a ‘full and fair opportunity’ 13 to litigate his claim.” Clements v. Airport Auth. of Washoe Cnty., 69 F.3d 321, 328 (9th Cir. 1995) 14 (citing Kremer v. Chem. Constr. Corp., 546 U.S. 461, 480-82 (1982)). 15 Here, the order sustaining demurrer concerned Plaintiff’s first amended complaint in the 16 state court action and followed the state court’s consideration of the parties’ briefing and oral 17 argument. The judicially noticed documents reveal that Plaintiff had a full and fair opportunity to 18 litigate his claim in the Kings County Superior Court. 19 Other Considerations 20 To the extent Plaintiff contends the state court’s order was incorrectly decided, Plaintiff is 21 advised this Court has no authority to revisit the substantive findings and determinations made by 22 the state court. Love v. Villacana, 73 F.4th 751, 754 (9th Cir. 2023) (“A final judgment is 23 afforded preclusive effect even if erroneous”); Slater, 15 Cal.3d at 797 (“The consistent 24 application of the traditional principle that final judgments, even erroneous ones ... are a bar to 25 further proceedings based on the same cause of action is necessary to the well-ordered 26 functioning of the judicial process. It should not be impaired for the benefit of particular 27 plaintiffs, regardless of the sympathy their plight might arouse in an individual case”). 1 Moreover, Plaintiff’s assertion that this Court “has established that there was in fact an 2 Eighth Amendment claim established and violation under the law,” is mistaken. At screening, 3 accepting Plaintiff’s factual allegations as true, the Court found Plaintiff presented a plausible 4 Eighth Amendment deliberate indifference claim. The Court has not determined that a 5 constitutional violation occurred--only that one was properly alleged. 6 Finally, Defendants did not argue judicial estoppel applies in this action. Thus, the Court 7 does not address Plaintiff’s contentions in that regard. 8 B. The Statute of Limitations Defense is Premature 9 California’s two-year statute of limitations for personal injury actions applies to section 10 1983 claims. Butler v. Nat'l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 11 2014); Cal. Civ. Proc. Code § 335.1. In addition, California Code of Civil Procedure section 12 352.1(a) provides an extra two years for those imprisoned “for a term less than for life” when the 13 cause of action accrues. This limitations period can also be tolled for various reasons, including 14 equitable tolling. Whether Plaintiff is entitled to equitable tolling is also determined by California 15 law, except to the extent that California laws are inconsistent with federal law. Jones v. Blanas, 16 393 F.3d 918, 927 (9th Cir. 2004). Equitable tolling “operates independently of the literal 17 wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary 18 to ensure fundamental practicality and fairness.” Id. at 928 (quoting Lantzy v. Centex Homes, 31 19 Cal.4th 363, 370 (2003)) (internal quotation marks omitted). 20 “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the 21 applicable statute of limitations only when ‘the running of the statute is apparent on the face of 22 the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th 23 Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). 24 “[W]here the issue of limitations requires determination of when a claim begins to accrue, the 25 complaint should be dismissed only if the evidence is so clear that there is no genuine factual 26 issue and the determination can be made as a matter of law.” Sisseton-Wahpeton Sioux Tribe v. 27 United States, 895 F.2d 588, 591 (9th Cir. 1990). 1 Under California's test for equitable tolling, a plaintiff must establish “timely notice, and 2 lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the 3 plaintiff.” Butler v. Nat'l Cmty. Renaissance of California, 766 F.3d 1191, 1204 (9th Cir. 2014) 4 (explaining that federal courts borrow state law equitable tolling provisions, unless they are 5 inconsistent with federal law, and setting forth California's doctrine of equitable tolling). 6 The Court finds that the running of the limitations period is apparent from the face of 7 Plaintiff’s complaint. It alleges that Defendant Chang was deliberately indifferent to Plaintiff’s 8 serious medical needs on February 2, 2017—the date Plaintiff’s finger was severed, and he was 9 initially treated by Chang. Although the statute of limitations began to run on February 2, 2017, 10 Plaintiff did not file this action until May 25, 2022—five years, 3 months, 3 weeks, and 2 days 11 later. (See Doc. 1.) Therefore, on the face of the complaint and absent any tolling, Plaintiff’s 12 claim against Chang is time barred. This does not, however, end the Court’s inquiry concerning 13 the statute of limitations. 14 Plaintiff asserts equitable tolling is appropriate during the pendency of a “related tort 15 claim under the CTCA” and that such a filing “constitutes a good faith pursuit of a legal remedy 16 designed to lessen the extent of a plaintiff’s damages.” Plaintiff also contends “for more than a 17 year[],” California prisoners “had no physical access to the law library, there were staff shortages, 18 and modified program because state workers were sick from COVID 19,” and that “Emergency 19 Rule 9”3 should apply to toll the limitations period. 20 “Generally, the applicability of equitable tolling depends on matters outside the pleadings, 21 so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss (where review is limited to 22 3 Emergency rule 9(a) provides that “[n]otwithstanding any other law, the statutes of limitations and repose 23 for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” Judicial Council of Cal., Emergency Rules Related to COVID-19. 24 (https://www.courts.ca.gov/documents/appendix-i.pdf, last accessed December 20, 2024.) “By its terms, ‘[e]mergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading 25 in court asserting a civil cause of action.’” Palacios v. Interstate Hotels & Resorts Inc., No. 21-cv-05799- 26 TSH, 2021 WL 4061730, at *3 (N.D. Cal. Sept. 7, 2021) (quoting Judicial Council of Cal., advisory comm. comment to emergency rule 9). The Judicial Council of California also issued a press release 27 regarding a minor revision and clarification to emergency rule 9 wherein it stated that “[t]he rule is broad in scope and applies to all civil causes of action.” Id. (quoting Judicial Council Revises Emergency Rule on Statutes of Limitations in Civil Cases, Judicial Council of Cal. (May 29, 2020)). 1 the complaint) if equitable tolling is at issue.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 2 1003-04 (9th Cir. 2006); accord Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 3 1993) (“California's fact-intensive test for equitable tolling is more appropriately applied at the 4 summary judgment or trial stage of litigation”); see also Payne v. Merced County Public 5 Defender’s Office, No. 1:22-cv-00157-BAM, 2024 WL 129865 (E.D. Cal. Jan. 11, 2024) (“As to 6 Defendants’ specific assertions regarding equitable tolling, the Court has explained that because 7 equitable tolling is a fact-specific question, it must be resolved in a motion for summary 8 judgment”). 9 The Court finds that equitable tolling is applicable in this action, particularly the tolling of 10 the statute during the pendency of any California Tort Claims Act filing and of Emergency rule 9. 11 The Defendant’s statute of limitations defense is more appropriately considered at the summary 12 judgment or trial stage. Huynh, 465 F.3d at 1003-04. 13 C. Summary of Findings 14 In sum, this Court finds Plaintiff’s claim against Defendant is barred by preclusion 15 principles and will recommend Defendant’s motion be granted on that basis. The Court also finds 16 the statute of limitations defense requires consideration of equitable tolling provisions and is 17 premature at this stage of the proceedings. Therefore, it will recommend Defendant’s motion be 18 denied on that basis. 19 VII. ORDER AND RECOMMENDATION 20 The Court DIRECTS the Clerk of the Court to randomly assign a district judge to this 21 action. 22 Based on the foregoing, this Court RECOMMENDS that: 23 1. Defendant’s request for judicial notice be GRANTED; 24 2. Defendant’s motion to dismiss (Doc. 31) be GRANTED in part (preclusion 25 principles) and DENIED in part (statute of limitations); 26 3. Leave to file an amended complaint be DENIED; and 27 4. Plaintiff’s complaint be DISMISSED with prejudice and the case closed. 1 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 2 after being served with a copy of these Findings and Recommendations, a party may file written 3 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 4 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 5 without leave of Court and good cause shown. The Court will not consider exhibits attached to 6 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 7 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 8 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 9 may be disregarded by the District Judge when reviewing these Findings and Recommendations 10 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time 11 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 12 Cir. 2014). 13 IT IS SO ORDERED. 14

15 Dated: December 27, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 16

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