Symbiont Nutrition LLC v. Western Agricultural Insurance Company

• Court: District Court, D. Arizona
• Decided: May 2, 2023
• Docket: 2:21-cv-00426
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Symbiont Nutrition LLC, No. CV-21-00426-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Western Agricultural Insurance Company,

13 Defendant. 14 15 At issue are the parties’ cross Motions for Summary Judgment. The Court considers 16 Plaintiff Symbiont Nutrition LLC’s Motion for Partial Summary Judgment (Doc. 44, 17 PMSJ) and Statement of Facts (Doc. 45, PSOF), Defendant Western Agricultural Insurance 18 Company’s Response (Doc. 52, Def. Resp.) and Controverting Statement of Facts 19 (Doc. 53, DCSOF), and Plaintiff’s Reply (Doc. 54, Pl. Reply). The Court also considers 20 Defendant’s Motion for Summary Judgment (Doc. 46, DMSJ) and Statement of Facts 21 (Doc. 47, DSOF), Plaintiff’s Response (Doc. 50, Pl. Resp.) and Controverting Statement 22 of Facts (Doc. 51, PCSOF), and Defendant’s Reply (Doc. 55, Def. Reply). The Court will 23 resolve the Motions without oral argument. LRCiv 7.2(f). 24 I. BACKGROUND 25 Plaintiff is a livestock feed processor and seller operating in Arizona. At all relevant 26 times, Defendant provided insurance to Plaintiff under a business owner’s Policy that 27 included coverage for damage to buildings and business personal property, debris removal 28 within 180 days of a loss, and business income loss (BIL) within 12 months of a loss. On 1 December 2, 2019, Plaintiff reported a loss arising from a fire in a 1976 Bueler Aeroglide 2 Dryer which was used to dry corn pellets for cow feed. Representatives of Defendant, 3 including field claims representative Jeff Whitt, his supervisor Marty Einstein, special 4 investigator Garth McClellan, and retained fire loss investigator Joe Sesniak, began 5 investigating and adjusting the loss immediately. Although they initially determined that 6 the fire loss was not covered because the Policy only explicitly covered the warehouse and 7 the dryer was installed in a separate, open-sided structure, they reversed that determination 8 because Brian Smith, the agent who sold the Policy to Plaintiff, stated he wrote the Policy 9 incorrectly and it should have covered multiple buildings on the property. 10 On February 11, 2020, Plaintiff’s owner, Mark Holt, provided a repair cost estimate 11 to Defendant of $234,595 based in part on information provided by Plaintiff’s accountant, 12 Tom Hudgens. Whitt sent the dryer repair estimate to a specialty company, ACE, to review. 13 Whitt also retained an accountant on behalf of Defendant, Michael Haugen, to manage 14 Plaintiff’s BIL claim. 15 On February 28, 2020, Whitt advanced Plaintiff $100,000 while the investigation 16 proceeded. After all parties continued to exchange information, Whitt made Plaintiff a net 17 settlement offer, excluding the BIL claim, of an additional $100,204.20 on April 3, 2020, 18 which Defendant calculated by depreciating the dryer repair cost with respect to parts, 19 labor, and the fire and electrical systems. Holt took issue with the depreciation calculation, 20 and on April 10, 2020, Whitt made a second net settlement offer of $122,262.84 after a 21 total depreciation deduction of $143,411.16. Holt accepted the second settlement offer on 22 April 20, 2020, and Defendant issued a check the next day. 23 With regard to Plaintiff’s BIL claim, after much communication between Haugen, 24 Hudgens, Holt, and Whitt, Haugen initially determined Plaintiff had no BIL, but ultimately 25 determined on November 13, 2020 that Plaintiff’s BIL was $75,837.00. Defendant issued 26 a check in that amount on January 5, 2021. 27 28 1 In sum, after the loss Plaintiff reported on December 2, 2019, Defendant paid a 2 $100,000 advance on February 28, 2020, an additional $122,262.84 for dryer repairs and 3 expenses on April 21, 2020, and $75,837.00 for BIL on January 5, 2021. 4 Unsatisfied with Defendant’s adjustment of the claim, on February 4, 2021, Plaintiff 5 filed this suit against Defendant, raising claims for breach of contract and bad faith. 6 (Doc. 1-3 at 5–9, Compl.) Defendant now moves for summary judgment as to Plaintiff’s 7 bad faith claim and the aspect of the breach of contract claim concerning Defendant’s 8 payment for dryer repairs; Defendant contends a genuine issue of fact remains to be 9 resolved as to the payment for BIL. Plaintiff cross-moves for summary judgment on one 10 aspect of its breach of contract claim but not the bad faith claim. 11 II. LEGAL STANDARD 12 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 13 when the movant shows that there is no genuine dispute as to any material fact and the 14 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 15 Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the 16 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 17 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 18 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 19 242, 248 (1986)). The court must view the evidence in the light most favorable to the 20 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 21 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 22 The moving party “bears the initial responsibility of informing the district court of 23 the basis for its motion, and identifying those portions of [the record] . . . which it believes 24 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232. 25 When the moving party does not bear the ultimate burden of proof, it “must either produce 26 evidence negating an essential element of the nonmoving party’s claim or defense or show 27 that the nonmoving party does not have enough evidence of an essential element to carry 28 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 1 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden of 2 production, the nonmoving party must produce evidence to support its claim or defense. 3 Id. at 1103. Summary judgment is appropriate against a party that “fails to make a showing 4 sufficient to establish the existence of an element essential to that party’s case, and on 5 which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 6 In considering a motion for summary judgment, the court must regard as true the 7 non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary 8 material. Anderson, 477 U.S. at 255. However, the non-moving party may not merely rest 9 on its pleadings; it must produce some significant probative evidence tending to contradict 10 the moving party’s allegations, thereby creating a material question of fact. Id. at 256–57 11 (holding that the plaintiff must present affirmative evidence in order to defeat a properly 12 supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 13 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 14 conclusory allegations unsupported by factual data.” (citation omitted)). 15 III. ANALYSIS 16 A. Breach of Contract Claim 17 In this lawsuit, Plaintiff claims that in addition to the payments Defendant has made, 18 Plaintiff is owed (1) dryer repair costs of $143,411.16—the amount of depreciation 19 Defendant deducted from its payment that it was not entitled to deduct—as well as 20 additional, newly-reported amounts for dryer repairs, (2) additional BIL in the amount of 21 $1,059,800 through December 31, 2020, (3) unpaid lost inventory in the amount of 22 $332,000, and (4) consequential damages reasonably foreseeable from the breach of 23 contract beyond the Policy’s time limits in the amount of $55,000 per month. Defendant’s 24 refusal to pay these additional amounts forms the basis of Plaintiff’s breach of contract 25 claim. The parties do not contest that genuine disputes of fact remain as to the amounts of 26 BIL, lost inventory, and consequential damages beyond the Policy’s time limits, and those 27 issues will proceed to trial. The parties cross-move for summary judgment only as to 28 Defendant’s payment for dryer repair costs. 1 Defendant seeks summary judgment with regard to its entire payment for dryer 2 repair costs. Specifically, Defendant argues that its payment of $224,232.82, plus a 3 supplemental payment of $45,255.96 to account for depreciation on labor costs that 4 Defendant should not have deducted, is the total amount Plaintiff is entitled to under the 5 Policy. In so arguing, Defendant maintains that accounting for depreciation of repair of the 6 dryer, fire, and electrical systems was appropriate and that Plaintiff’s new claim for dryer 7 repair costs is precluded by estoppel and the doctrine of laches. For its part, Plaintiff asks 8 the Court to enter summary judgment on the issue of depreciation, arguing that Defendant 9 is not entitled to deduct depreciation for any portion of the dryer repair costs. 10 1. Depreciation 11 In Walker v. Auto-Owners Insurance Co., the Arizona Supreme Court examined 12 whether an insurer could “depreciate the costs of both materials and labor in determining 13 the actual cash value of a covered loss.” 517 P.3d 617, 618 (Ariz. 2022). After concluding 14 that the policy in question provided for the replacement cost less depreciation method of 15 calculating the actual cash value of a loss, that Court stated that an insurer could depreciate 16 materials but not labor when arriving at the actual cash value of the loss. Id. at 621–23. As 17 a result of that decision—which that Court entered halfway through the summary judgment 18 briefing in this case—Defendant cut Plaintiff an additional check for $45,255.96 in labor 19 depreciation it had previously deducted plus $18,102.38 in attorney’s fees, reasoning the 20 labor depreciation was precluded by Walker. 21 Defendant maintains that it was still permitted to depreciate for parts related to 22 dryer, fire, and electrical repairs because the Walker court allowed depreciation of 23 materials in determining actual cash value by way of the replacement cost less depreciation 24 method. (Def. Resp. at 2.) In response, Plaintiff argues that the amount Defendant owes 25 for the claim is not based on actual cash value at all, because Defendant chose to pay 26 Plaintiff the dryer repair cost under the Policy—an alternative not considered or addressed 27 by the Walker court. (Pl. Reply at 4–5.) 28 1 Interpretation of an insurance policy, as a contract, is a question of law. Hadley v. 2 Sw. Props., Inc., 570 P.2d 190, 193 (Ariz. 1977). Under Arizona law, a court 3 accord[s] words used in [insurance] policies their plain and ordinary 4 meaning, examining the policy from the viewpoint of an individual untrained in law or business. If a policy is subject to conflicting reasonable 5 interpretations, it is ambiguous, and we interpret it by examining . . . the 6 transaction as a whole. If an ambiguity remains, we construe it against the insurer. 7 8 Walker, 517 P.3d at 620 (internal quotations and citations omitted). 9 In this case, the Policy provided four options for Defendant to compensate Plaintiff 10 for a covered loss. Although one option was for Defendant to “pay the value of lost or 11 damaged property,” it is undisputed that Defendant chose another option, that is, to “pay 12 the cost of repairing or replacing the lost or damaged property.” (Doc. 45-2, PSOF Ex. B, 13 FB Policy at 000033; DCSOF ¶ 4; Def. Resp. at 5.) As Plaintiff contends, Walker addressed 14 a circumstance in which an insurer paid actual cash value for a covered loss and is therefore 15 inapposite to the question of whether an insurer can depreciate repair cost. Indeed, the 16 Walker court laid out three ways to define “actual cash value”: “(1) as fair market value, 17 (2) as replacement cost less depreciation, and (3) according to the ‘broad evidence’ rule.” 18 Walker, 517 P.3d at 621 (internal citations omitted). Repair cost—the undisputed basis 19 chosen by Defendant to compensate Plaintiff for the covered loss—is not one of the 20 definitions provided in Walker for “actual cash value.” 21 Defendant argues that because the Policy’s Declarations section provides that 22 “Building Valuation Type” is “Actual Cash Value,” Defendant can depreciate even the 23 “cost of repairing or replacing the lost or damaged property” option of compensation for a 24 covered loss. (Def. Resp. at 5; FB Policy at 000003, 000033.)1 The Court agrees with

25 1 In its brief, Defendant appears to quote from various sections of the Policy to attempt to show a path, or at least “foreshadowing,” linking the Declarations section, which refers to 26 Actual Cash Value, with the option in the Loss Payment section for Defendant to pay repair cost. (Def. Resp. at 5.) But Defendant provides no citations to the Policy, and the Court 27 could not determine which precise sections Defendant attempted to quote. (See Def. Resp. at 5.) In any event, the Declarations section does not change the plain language of the Loss 28 Payment section. Even if the Court found that reading the two sections together created an ambiguity by way of conflicting reasonable interpretations, the Court would resolve it by 1 Plaintiff that the plain language of the Policy distinguishes between property value—as in 2 “Building Valuation Type,” “Actual Cash Value,” and “Pay the value of lost or damaged 3 property” (FB Policy at 000003, 000033)—and repair cost—as in “Pay the cost of repairing 4 or replacing the lost or damaged property” (FB Policy at 000033). Moreover, no provision 5 of the Policy states that Defendant can depreciate repair cost. 6 In this sense, Plaintiff is correct that the Policy in this case is akin to the policy the 7 Arizona Court of Appeals addressed in Melancon v. USAA Casualty Insurance Co., 849 8 P.2d 1374, 1376 (Ariz. Ct. App. 1992). (Pl. Reply at 5.) There, as here, the policy gave the 9 insurer the disjunctive choice to either (1) pay the value of the damaged property, or (2) pay 10 the cost to repair or replace it. See id. And there, as here, the plain language of the policy 11 “negates the contention” that “actual cash value implies a reduction attributable to 12 depreciation and that this term applied to subsection (2) as well as subsection (1).” Id. 13 Neither the express language of the Policy provides that Defendant can depreciate 14 repair cost, nor is such a proposition provided for in the case law as it pertains to a policy 15 such as the one in this case. Plaintiff is thus entitled to partial summary judgment on the 16 issue of depreciation: Defendant may not depreciate the cost of materials for the repair of 17 the dryer, fire, and electrical systems under the Policy. 18 2. Defenses Grounded in Estoppel and Laches 19 In moving for summary judgment on its entire payment to date for dryer repair costs, 20 Defendant also makes an argument grounded in principles of estoppel. Specifically, 21 Defendant contends—without citation to supporting case law—that it paid the repair costs 22 based on Plaintiff’s own repair estimate, so Plaintiff cannot now claim additional repair 23 costs. (DMSJ at 15.) In response, Plaintiff argues that Defendant’s contention is 24 inconsistent with the testimony of Whitt, Defendant’s adjuster, that Plaintiff’s acceptance 25 of the funds Defendant offered was not a final settlement and Plaintiff was free to make 26 further claims for dryer repair costs. (Pl. Resp. at 6; Doc. 51-6, PCSOF Ex. 6, Whitt Depo. 27 at 139–40.) This assertion is bolstered by evidence indicating that the initial dryer repairs

28 examining the transaction as a whole and, if necessary, construe the Policy against the insurer. See Walker, 517 P.3d at 620. 1 were “makeshift” because Defendant initially denied Plaintiff’s claim to cover its loss, 2 leaving Plaintiff with insufficient funds to make complete repairs. (Doc. 51-5, PCSOF Ex. 3 5, Holt Depo. at 106–08.) While the initial repairs were sufficient to get the dryer running, 4 additional repairs were required to get the dryer fully operational, and Plaintiff presents 5 some evidence that Defendant knew additional repairs were necessary and not yet 6 completed. (Holt Depo. at 106–08; Doc. 51-15, PCSOF Ex. 15, Einstein Depo. at 90.) 7 Defendant does not point the Court to evidence that the settlement offer for dryer 8 repairs was final such that Plaintiff’s acceptance of the check was akin to accord and 9 satisfaction of the entire dryer repair claim. (See DSOF ¶ 35 (“On April 20, 2020, Whitt 10 spoke with Mark Holt, who agreed to accept the second settlement offer of $122,262.84 11 and a check for that amount was issued the next day.”).) The Court agrees with Plaintiff 12 that at least a genuine dispute of fact remains as to whether Defendant’s payment for dryer 13 repairs was a final adjustment of the covered loss. 14 In its Reply, Defendant argues for the first time that Plaintiff’s request for coverage 15 of additional dryer repair costs “comes too late in the process and is thus barred by the 16 doctrine of laches.” (Def. Reply at 8.) The Court notes that, under Arizona law, laches may 17 not be used in the case of a mere delay, but rather “the delay must be unreasonable under 18 the circumstances, including the party’s knowledge of his or her right, and it must be shown 19 that any change in the circumstances caused by the delay has resulted in prejudice to the 20 other party sufficient to justify denial of relief.” Flynn v. Rogers, 834 P.2d 148, 153 (Ariz. 21 1992). On the subject of tardiness, Defendant waited until its Reply brief to raise the laches 22 argument, and arguments raised for the first time in a reply brief are deemed waived. 23 Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008). 24 For these reasons, the Court will deny Defendant’s motion for summary judgment 25 as it pertains to payment for dryer repair costs. 26 B. Bad Faith Claim 27 Defendant also seeks summary judgment as to Plaintiff’s bad faith claim, arguing 28 that Defendant’s alleged failures to adequately compensate Plaintiff for dryer repairs, BIL, 1 and other losses within a reasonable time were not consciously unreasonable. (DMSJ at 2 10–15.) In Response, Plaintiff argues that there is sufficient material evidence of 3 Defendant’s bad faith, precluding summary judgment. (Pl. Resp. at 6–15.) 4 The tort of bad faith arises when the insurer “intentionally denies, fails to process 5 or pay a claim without a reasonable basis.” Noble v. Nat’l Am. Life Ins. Co., 624 P.2d 866, 6 868 (Ariz. 1981). To establish a claim of bad faith, a plaintiff must first prove, under an 7 objective test, that the insurer acted unreasonably. Deese v. State Farm Mut. Auto. Ins. Co., 8 838 P.2d 1265, 1268 (Ariz. 1992). Then the plaintiff must prove, under a subjective test, 9 that the insurer either “knew that its conduct was unreasonable” or acted with “reckless 10 disregard.” Id. Bad faith plaintiffs must provide evidence that their losses were “caused by 11 defendant’s conduct.” Rawlings v. Apodaca, 726 P.2d 565, 577 (Ariz. 1986). An insurer 12 “has an obligation to immediately conduct an adequate investigation, act reasonably in 13 evaluating the claim, and act promptly in paying a legitimate claim.” Zilisch v. State Farm 14 Mut. Auto. Ins. Co., 995 P.2d 276, 280 (Ariz. 2000). An insurer can be found to have acted 15 in “bad faith” when it delays payment of a legitimate claim. Id. at 280–81. 16 Plaintiff has demonstrated genuine issues of material fact as to Defendant’s bad 17 faith. First, Defendant initially denied Plaintiff’s claim even though Defendant’s agent 18 represented to Plaintiff that the Policy would cover damage to the dryer. The parties dispute 19 when Defendant knew of its agent’s representation to Plaintiff; Defendant points to 20 evidence that it only discovered what was promised to Plaintiff after it denied Plaintiff’s 21 claim, and Plaintiff argues Defendant knew, or should have known, before deciding to deny 22 the claim. Because genuine disputes of fact remain as to Defendant’s initial denial of the 23 claim, the Court cannot conclude that no reasonable jury could find that Defendant acted 24 unreasonably and with the requisite knowledge or reckless disregard. 25 Likewise, genuine disputes of fact exist as to the reasonableness of Defendant’s 26 payment for dryer repairs, from which Defendant deducted depreciation in contravention 27 of the terms of the Policy as understood by an untrained customer. Moreover, as discussed 28 above, evidence indicates Defendant knew Plaintiff had only completed makeshift repairs 1 to the dryer during the period immediately after Defendant initially denied the claim, such 2 that Plaintiff would have to incur additional repair costs to get the dryer fully operational, 3 yet Defendant has declined to pay for additional repair costs. A finder of fact must resolve 4 what Defendant knew, and when, to determine whether Defendant acted unreasonably and 5 with the requisite knowledge or reckless disregard in its payments for dryer repairs. 6 And multiple questions of fact remain as to the reasonableness of Defendant’s 7 payment for BIL. The parties agree that there is genuine dispute over the BIL calculations, 8 but Defendant essentially argues that it relied on the calculations of its retained accountant, 9 Haugen, based on the information he received from Plaintiff, so its actions cannot have 10 been consciously unreasonable. (E.g. Reply at 7.) In response, Plaintiff points to evidence 11 to argue that Haugen’s calculations were unreasonable and not credible on their face. 12 (Resp. at 12.) Because all of these issues must be resolved by a jury, the Court will deny 13 Defendant’s request for summary judgment as to Plaintiff’s bad faith claim. See Zilisch, 14 995 P.2d at 276 (stating that insurer’s “belief in fair debatability is a question of fact to be 15 determined by the jury” (internal quotation omitted)). 16 C. Punitive Damages 17 By contrast, Plaintiff does not meet its evidentiary burden to resist Defendant’s 18 request for summary judgment with regard to Plaintiff’s prayer for punitive damages. In 19 Arizona, to recover punitive damages, the plaintiff must “show ‘something more’ than the 20 conduct necessary to establish the tort” of bad faith. Thompson v. Better–Bilt Aluminum 21 Prods. Co., 832 P.2d 203, 209 (Ariz. 1992) (quoting Rawlings, 726 P.2d at 577). This 22 “something more,” requires the plaintiff to “prove that defendant's evil hand was guided 23 by an evil mind.” Rawlings, 726 P.2d at 578. The requisite “evil mind” may be found when 24 the defendant either (1) “intended to injure the plaintiff” or (2) “consciously pursued a 25 course of conduct knowing that it created a substantial risk of significant harm to others.” 26 Id. Punitive damages are recoverable in a bad faith tort action “when, and only when, the 27 facts establish that defendant’s conduct was aggravated, outrageous, malicious, or 28 fraudulent.” Id. (emphasis in original). “Indifference to facts or failure to investigate are 1 sufficient to establish the tort of bad faith but may not rise to the level required by the 2 punitive damage rule.” Id. 3 The plaintiff must prove the defendant’s “evil mind” by clear and convincing 4 evidence. Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 681 (Ariz. 1986). The 5 evidence may be either direct or circumstantial. Hyatt Regency Phoenix Hotel Co. v. 6 Winston & Strawn, 907 P.2d 506, 518 (Ariz. App. 1995). An “evil mind” may be inferred 7 from a defendant’s conduct or objectives. Hudgins v. Southwest Airlines, Co., 212 P.3d 8 810, 825 (Ariz. App. 2009). As is always true at the summary judgment stage, a motion for 9 summary judgment on punitive damages requires that “the evidence and all reasonable 10 inferences that may be drawn from the evidence should be construed in a light most 11 favorable to the non-moving party.” Thompson, 832 P.2d at 211. “A motion for summary 12 judgment on the issue of punitive damages must be denied if a reasonable jury could find 13 the requisite evil mind by clear and convincing evidence. Conversely, the motion should 14 be granted if no reasonable jury could find the requisite evil mind by clear and convincing 15 evidence.” Id. 16 Although Plaintiff lays out the punitive damages standard in detail in its brief, it 17 does not point to any evidence whatsoever of Defendant’s evil mind. (Pl. Resp. at 13–15.) 18 Plaintiff’s concern about the Court’s application of a burden of proof to the evidence (Pl. 19 Resp. at 14) is irrelevant if Plaintiff identifies no evidence—as required by Rule 56(c)—to 20 which to apply the burden of proof. Defendant’s alleged unreasonable acts, which were 21 sufficient to support Plaintiff’s bad faith claim, are not by themselves sufficient to support 22 a punitive damages claim. Without more, the Court will grant Defendant’s request for 23 summary judgment as to Plaintiff’s punitive damages prayer. 24 IT IS THEREFORE ORDERED granting Plaintiff’s Motion for Partial Summary 25 Judgment (Doc. 44). Under the Policy, Defendant may not depreciate the cost of materials 26 for the repair of the dryer, fire, and electrical systems. 27 IT IS FURTHER ORDERED granting in part and denying in part Defendant’s 28 Motion for Summary Judgment (Doc. 46). Defendant is entitled to summary judgment with || respect to Plaintiff's prayer for punitive damages, but Defendant’s Motion is denied in all other respects. 3 IT IS FURTHER ORDERED that this matter will proceed to trial, and the Court will set a pre-trial status conference by separate Order. 5 Dated this 2nd day of May, 2023. CN iy. 7 wefihlee— Unifga StatesDistrict Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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