Tijerina v. Alaska Airlines, Inc.

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 BEATRIZ TIJERINA, individually, Case No.: 22-CV-203 JLS (BGS)

12 Plaintiff,

ORDER ON MOTIONS IN LIMINE

13 v.

(ECF Nos. 72, 73, 74, 75, 76, 77, 78, 79)

14 ALASKA AIRLINES, INC.,

an Alaska Corporation; and DOES 1–50,

15

Defendant.

16

17

18 Presently before the Court are Plaintiff Beatriz Tijerina’s (“Plaintiff”) and Defendant

19 Alaska Airlines, Inc.’s (“Defendant” or “Alaska”) Motions in Limine (“MILs” or “Mots.,”

20 ECF Nos. 72–79). On January 10, 2024, the Court held a hearing on these motions and

21 issued tentative rulings. Having considered the Parties’ moving papers, the arguments

22 made at the hearing, and the applicable law, the Court GRANTS IN PART AND DENIES

23 IN PART the MILs, as discussed below. However, the Court emphasizes that, given the

24 nature of motions in limine, the Court’s rulings are necessarily tentative and may be

25 revisited during trial. See United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999)

26 (“The district court may change its ruling at trial because testimony may bring facts to the

27 district court’s attention that it did not anticipate at the time of its initial ruling.”).

28 / / /

1 PLAINTIFF’S MOTIONS IN LIMINE

2 I. Motion in Limine No. 1 to Exclude Speculative and Conclusory Testimony

3 Regarding the Actual Duties and Authority of Lead Customer Service Associates

4 Plaintiff’s first MIL seeks to preclude witnesses lacking personal knowledge from

5 testifying about the actual duties and authority of lead customer service associates (“Lead

6 CSAs”), including Mark Buenaflor (“Buenaflor”)—Plaintiff’s alleged harasser. See ECF

7 No. 72-1 at 2–3. Specifically, Plaintiff seeks to prevent high-ranking executives who lack

8 personal knowledge from testifying about Buenaflor’s role and the operations of the San

9 Diego airport. See id. at 3–4. The only witness named in the Motion is Steven Zwerin

10 (“Zwerin”), Alaska’s director of employee relations. See id. In his deposition, Zwerin

11 stated that “Alaska Airlines’ practice is that leads have no authority to hire, fire, or

12 discipline employees,” and that—in his opinion—Lead CSAs were not supervisors. Id.

13 at 4. Per Plaintiff, Zwerin also “admitted he had no personal knowledge of what actions

14 Mr. Buenaflor took or even could take while working at the San Diego Airport.” Id.

15 Plaintiff presents three arguments to support this Motion. First, Plaintiff claims that

16 because Zwerin lacks personal knowledge regarding Buenaflor’s authority and actions,

17 Zwerin’s testimony is speculative and runs afoul of Federal Rule of Evidence (“FRE”) 602.

18 See id. Plaintiff also contends that Zwerin’s personal belief regarding whether Lead CSAs

19 constitute supervisors is an inadmissible lay opinion under FRE 701. See id. at 5 (“Rule

20 701(a) contains a personal knowledge requirement.” (quoting United States v. Lopez,

21 762 F.3d 852, 864 (9th Cir. 2014))). Lastly, Plaintiff turns to FRE 403 and argues that

22 “speculative” testimony from Alaska’s upper management is unfairly prejudicial because

23 (1) it may be viewed by the jury as inherently trustworthy; and (2) and would constitute a

24 “biased opinion, formed after the fact” for defensive purposes. Id.

25 Meanwhile, Defendant argues that Zwerin’s testimony need not be based on personal

26 knowledge in light of Federal Rule of Civil Procedure (“FRCP”) 30(b)(6), which allows a

27 company to designate someone to speak on its behalf about information available to the it.

28 ECF No. 86 at 3. Defendant contends “corporate designee[s],” like Zwerin, “may testify

1 to matters within the scope of the Rule 30(b)(6) deposition topics even if the witness lacks

2 personal knowledge.” Id. Defendant also argues that the Motion is too vague and overly

3 broad to the extent it seeks to exclude any “speculative” testimony from witnesses beyond

4 Zwerin. Id. at 5–6.

5 The question posed by the present Motion is more complex than either party lets on.

6 FRCP 30(b)(6) allows an organization to designate “one or more officers, directors, or

7 managing agents” to “testify about information known or reasonably available to the

8 organization” at a deposition. “[A] Rule 30(b)(6) witness is essentially a spokesperson for

9 the company, and testifies in a corporate rather than personal capacity.” Kraft Foods Glob.,

10 Inc. v. United Egg Producers, Inc., No. 11-CV-8808, 2023 WL 5647204, at *7 (N.D. Ill.

11 Aug. 31, 2023). The deposition testimony of such a witness is thus “determined by the

12 limits of the company’s knowledge, not the individual’s personal knowledge.” Persian

13 Gulf Inc. v. BP W. Coast Prod. LLC, 632 F. Supp. 3d 1108, 1128 (S.D. Cal. 2022).

14 However, “case authority is split on the issue of whether a corporate designee may testify

15 concerning matters outside of his or her personal knowledge at trial.” Lister v. Hyatt Corp.,

16 No. C18-0961JLR, 2020 WL 419454, at *2 (W.D. Wash. Jan. 24, 2020) (emphasis added).

17 The Ninth Circuit has yet to weigh in on this issue. See id. (finding “no authoritative ruling

18 from the Ninth Circuit” on this topic).

19 Courts generally agree that when a party calls the opposing side’s 30(b)(6) designee

20 at trial, the designee may provide testimony not based on personal knowledge if said

21 testimony stays within the bounds of the 30(b)(6) deposition. See, e.g., Brazos River Auth.

22 v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006). This conclusion follows from

23 FRCP 32(a)(1), under which a deposition may be used against a party at trial if “(A) the

24 party was present or represented at the taking of the deposition or had reasonable notice of

25 it”; (B) the deposition is “used to the extent it would be admissible under the Federal Rules

26 of Evidence if the deponent were present and testifying”; and “(C) the use is allowed by

27 Rule 32(a)(2) through (8).” The first condition is met where a corporate party offers its

28 own designee. The second also poses no barrier under these circumstances, as statements

1 made during a FRCP 30(b)(6) deposition constitute “statement[s] of a party opponent” and

2 are thus non-hearsay under FRE 801(d)(2). Kraft Foods, 2023 WL 5647204, at *8. And

3 the third requirement is handled by FRCP 32(a)(3),1 which allows “[a]n adverse party” to

4 “use for any purpose the deposition of a party or anyone who, when deposed, was the

5 party’s . . . designee under Rule 30(b)(6).” Fed. R. Civ. P. 32(a)(3) (emphasis added).

6 FRCP 30(b)(6) designees may not, however, offer testimony at trial that consists of

7 “hearsay not falling within one of the authorized exceptions.” Brazos River, 469 F.3d

8 at 435. And the exceptions provided by FRE 801(d)(2) and FRCP 32(a)(3) do not apply

9 when an organization wishes to elicit testimony from its own corporate designee. See

10 Union Pump Co. v. Centrifugal Tech. Inc., 404 F. App’x 899, 907–08 (5th Cir. 2010)

11 (holding where testimony is not sought by the adverse party, “a corporate representative

12 may not testify to matters outside his own personal knowledge ‘to the extent that

13 information [is] hearsay not falling within one of the authorized exceptions.’” (alteration

14 in original) (quoting Brazos River, 469 F.3d at 435)); McGriff Ins. Servs., Inc. v. Madigan,

15 No. 5:22-CV-5080, 2022 WL 16709050, at *2 (W.D. Ark. Nov. 4, 2022) (“[W]hen a party

16 seeks to introduce its own 30(b)(6) deposition testimony at trial . . . ‘it may be in conflict

17 with both [FRCP] 32(a)(1)(B) and [FRE] 602.’” (quoting VIIV Healthcare Co. v. Mylan

18 Inc., 2014 WL 2195082, at *2 (D. Del. May 23, 2014))).

19 In other words, “Rule 30(b)(6) does not eliminate Rule 602’s personal knowledge

20 requirement” for trial witnesses. Brooks v. Caterpillar Glob. Mining Am., LLC, No.

21 4:14CV-00022-JHM, 2017 WL 3426043, at *5 (W.D. Ky. Aug. 8, 2017). This is not

22 surprising, as FRCP 30(b)(6) is designed to streamline the discovery process, SEC v. Hemp,

23 Inc., No. 216CV01413JADPAL, 2018 WL 4566664, at *3 (D. Nev. Sept. 24, 2018), not

24 alter the rules of evidence to be applied at trial.

25

26 1 Though FRCP 32(a)(3) contemplates the use of a 30(b)(6) designee’s deposition, courts have found that

the same rules apply to a party’s attempt to have the designee testify live at trial. See, e.g., Brazos River,

27

496 F.3d at 434 (“Although there is no rule requiring that the corporate designee testify ‘vicariously’ at

28 trial, as distinguished from at the rule 30(b)(6) deposition, if the corporation makes the witness available

1 Accordingly, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s

2 first Motion. Zwerin’s testimony—including any testimony regarding Buenaflor’s actual

3 duties, authority, and conduct at the San Diego Airport—will be admissible only “to the

4 extent such information is based on [his] personal knowledge and not on hearsay, or to the

5 extent that an exception to the hearsay rule applies.”2 Id. The same holds true for Zwerin’s

6 opinion regarding whether Lead CSAs should be considered supervisors. But to the extent

7 Plaintiff seeks to exclude testimony from unspecified witnesses beyond Zwerin, her

8 Motion is overly broad. See, e.g., In re Homestore.com, Inc., No. CV 01-11115 RSWL

9 CWX, 2011 WL 291176, at *13 (C.D. Cal. Jan. 25, 2011) (denying MIL where defendant

10 “ha[d] not provided the Court with the specific evidence claimed to be inadmissible”).

11 II. Motion in Limine No. 2 to Exclude Hearsay and Conclusory Testimony

12 Regarding Defendant’s Investigations and Disciplinary Actions

13 Plaintiff’s second motion in limine seeks to preclude Defendant from presenting any

14 evidence regarding Alaska’s response to Plaintiff’s harassment complaints that is “not

15 grounded in a witness’s personal knowledge.” See ECF No. 72-2 at 4. Specifically,

16 Plaintiff asks the Court to prevent “a high-level Alaska employee” from testifying (1) about

17 “Alaska’s ‘usual’ practices regarding investigating complaints,” and (2) “that Alaska

18 undertook such [an] investigation in response to Plaintiff’s complaint.” Id. Plaintiff argues

19 that any such testimony would be reliant on written reports prepared by lower-level

20 employees and thus constitute hearsay. See id. at 4. Plaintiff also contends that

21 “[s]peculative testimony” about Alaska’s “ideal” response to a complaint says little about

22 what Defendant “actually did.” Id. at 5. Plaintiff otherwise relies on the same arguments

23 made in her first Motion regarding personal knowledge and the risk of unfair prejudice.

24 Reading Plaintiff’s second Motion to again target Zwerin, Defendant repeats the

25 same Rule 30(b)(6) argument it made in opposition to Plaintiff’s first Motion in limine.

26

27 2 The Court clarifies that it does not decide in this Order whether Defendant can successfully apply a

28 hearsay exception to admit the testimony at issue. The Court only holds that such testimony cannot be

1 See ECF No. 86-1 at 4–6. Defendant also contends that evidence relating to Alaksa’s

2 investigation is not hearsay, as it is offered to show Defendant took remedial steps—not

3 for the truth of any statement made during the investigation. Id. at 5. Finally, Defendant

4 renews another of its prior arguments and accuses the instant Motion of failing to identify

5 “specific testimony that [Plaintiff] believes should be excluded.” Id. at 6.

6 The Court will GRANT IN PART AND DENY IN PART Plaintiff’s second MIL.

7 Presuming Plaintiff seeks to exclude testimony from Zwerin, the reasoning provided in

8 Section I, supra, applies—Defendant cannot use FRCP 30(b)(6) to wholesale avoid the

9 personal knowledge requirement. As a result, Zwerin may testify to Alaska’s investigatory

10 practices only if he has personal knowledge on those topics or a hearsay exception applies.

11 The Court is unable to rule on the admissibility of any particular statement or investigatory

12 record at this time, however, as the Parties have not adequately briefed questions of

13 knowledge and hearsay regarding specific pieces of potential evidence. Such challenges

14 must thus wait for trial. Lastly, to the extent Plaintiff hopes to exclude testimony from

15 other, unnamed witnesses, her Motion is again overbroad. See M.H. v. Cnty. of Alameda,

16 No. 11-CV-02868-JST, 2015 WL 894758 (N.D. Cal. Jan. 2, 2015) (“The purpose of a

17 [MIL] is to admit or preclude specific documents. The Court cannot ‘make evidentiary

18 determinations in a vacuum.’” (citations omitted and emphasis added) (quoting CadleRock

19 Joint Venture, L.P. v. Royal Indem. Co., 872 F. Supp. 2d 592, 602 (N.D. Ohio 2012))).

20 III. Motion in Limine No. 3 to Exclude Defendant’s Investigations of Harassment

21 and Any Other Records That Were Requested but Not Produced in Discovery

22 In her third Motion, Plaintiff seeks to preclude Defendant from introducing records

23 that were not produced during discovery, including previously undisclosed evidence

24 regarding Alaska’s harassment investigations. See ECF No. 72-3. Plaintiff, invoking

25 FRCPs 26 and 37, explains that a party must provide the names of witnesses and copies of

26 documents that it may use at trial and argues that undisclosed material should be excluded.

27 Id. at 2. Alaska counters by claiming to have no intention of using evidence “that has been

28 requested . . . but not produced.” ECF No. 86-2 at 3. Defendant also argues that the

1 Motion is impermissibly vague, as it does not target specific evidence. See id. at 2.

2 In light of Defendant’s representation that it will not offer any undisclosed evidence

3 at trial, the Court DENIES Plaintiff’s third motion as moot. The Court also notes once

4 more that, in failing to identify the particular evidence she seeks to exclude, Plaintiff’s

5 Motion is overbroad and, at best, premature. See Forbes v. Cnty. of Orange,

6 No. SACV111330JGBANX, 2013 WL 12165672, at *7 (C.D. Cal. Aug. 4, 2013)

7 (“Defendant . . . seeks to exclude ‘any evidence’ and ‘any witnesses’ not properly

8 disclosed pursuant to Rule 26. Because this request lacks specificity, it is denied as

9 overbroad.” (citation and emphasis omitted)).

10 IV. Motion in Limine No. 4 to Exclude Unemployment, Disability, and/or Worker’s

11 Compensation Payments to Plaintiff from Collateral Sources

12 Plaintiff’s fourth motion seeks to prevent Defendant from introducing evidence that

13 Plaintiff “received any unemployment, disability, or worker’s compensation payments”

14 after leaving her position at Alaska. ECF No. 72-4 at 2–3. “Under both federal procedural

15 law and California substantive law,” she argues, “a plaintiff’s damages may not be reduced

16 based on benefits received from a collateral source.” Id. at 2. Plaintiff also contends that

17 the receipt of such benefits is “not relevant to the harm [she] suffered and her resulting

18 damages,” and thus should not be admitted under FREs 401 and 403. Id. at 3.

19 Defendant agrees that evidence of collateral source payments is irrelevant here, but

20 on different grounds. In Defendant’s view, Plaintiff’s surviving claims do not stem from

21 her separation from Alaska and thus involve no lost wages. In other words, Defendant

22 argues collateral source payments have no bearing on Plaintiff’s alleged damages. See

23 ECF No. 86-3 at 1–2. As the Parties agree that collateral source payments received by

24 Plaintiff should not be admitted, the Court GRANTS Plaintiff’s fourth Motion in Limine.

25 V. Motion in Limine No. 5 to Exclude Impermissible Character Evidence from

26 Defendant’s Employees Regarding Lack of Harassment by Buenaflor

27 In her fifth and final Motion, Plaintiff asks the Court to exclude two forms of so-

28 called “not me too” evidence: (1) evidence of “Buenaflor’s non-discriminatory treatment

1 of other employees,” if used “as evidence Buenaflor did not harass Plaintiff”; and

2 (2) evidence of “Defendant’s non-discriminatory treatment of others,” if used “to establish

3 that [Alaska] did not harass or fail to prevent harassment of Plaintiff.” ECF No. 72-5 at 2.

4 Regarding the first category, Plaintiff relies on Rule 404(b)(1)’s prohibition on using

5 character evidence to make a propensity argument. See id. at 3–4. In other words, Plaintiff

6 seeks to prevent Defendant from using “evidence of Buenaflor’s positive or neutral

7 treatment of women” to show that Buenaflor is not the harassing sort. See id. at 4. As to

8 the second category of evidence, Plaintiff similarly argues that “an employer may not use

9 ‘good acts’ or ‘fair treatment’ of others to show that it has not discriminated against an

10 individual.” Id. at 2 (citing Connecticut v. Teal, 457 U.S. 440, 455 (1982)).

11 Alaska “does not disagree that ‘not me too’ evidence should be excluded,” but the

12 company still asks the Court to deny Plaintiff’s fifth Motion. ECF No. 86-4 at 1.

13 Defendant claims to have no intention of introducing “good acts” or “fair treatment”

14 evidence to “show that a person has a propensity for a certain behavior.” Id. Defendant

15 nevertheless opines that the Motion is overbroad, arguing that excluding all prior “good”

16 acts goes too far because such evidence may be admissible under one of Rule 404(b)’s

17 “numerous exceptions.” Id. For example, prior acts may properly be used to rebut claims

18 an opposing party makes “as the trial progresses.” Id. For the same reason, Defendant

19 claims that Plaintiff’s “categorical[]” fifth Motion is also premature. Id.

20 Plaintiff’s fifth Motion in Limine is GRANTED IN PART AND DENIED IN

21 PART. The Parties agree that Buenaflor’s prior “good acts” and Alaska’s “non-

22 discriminatory treatment” of others cannot be used to make propensity arguments.3

23 However, Plaintiff’s Motion is otherwise overbroad and premature because it attempts to

24 exclude all prior acts evidence. See, e.g., United States v. Richardson, No. CR 23-19-BLG-

25 SPW, 2023 WL 5163934, at *1 (D. Mont. Aug. 11, 2023). Non-propensity uses of such

26

27 3 The Parties spend much of their briefs disputing whether “me too” evidence is any more or less

28 admissible than “not me too” evidence. See ECF No. 72-5 at 4–5; ECF No. 86-4 at 2–3. The Court

1 evidence may be permissible in the context of trial, at which point the Court will be better

2 equipped to handle targeted admissibility challenges. See Colton Crane Co., LLC v. Terex

3 Cranes Wilmington, Inc., No. CV 08-8525PSGPJWX, 2010 WL 2035800, at *1 (C.D. Cal.

4 May 19, 2010) (“[M]otions in limine should rarely seek to exclude broad categories of

5 evidence, as the court is almost always better situated to rule on evidentiary issues in their

6 factual context during trial.”).

7 DEFENDANT’S MOTIONS IN LIMINE

8 I. Motion in Limine No. 1 for an Order Excluding Plaintiff from Introducing Any

9 Witnesses at Trial That Were Not Disclosed Pursuant to FRCP 26

10 In its first Motion in Limine, Defendant asks the Court to preclude testimony from

11 the twenty-six witnesses4 who “were not properly identified in her Initial Disclosure” but

12 that Plaintiff “intends to call at trial.” ECF No. 73-1 at 3. Defendant cites (1) FRCP

13 26(a)(1)(A)(i), under which a party must identify in her initial disclosures individuals that

14 she may use to make her case; (2) FRCP 26(e), which requires parties to supplement their

15 initial disclosures if they learn that said disclosures are incomplete; and (3) FRCP 37(c)(1),

16 which prohibits parties from using undisclosed information or witnesses at trial. Id. at 3–4.

17 Defendant argues that it prepared for this case “based on the information Plaintiff disclosed

18 in her Initial Disclosures” and would be “incurably prejudice[d]” by the “trial testimony of

19 a surprise witness.” Id. at 6.

20 Countering, Plaintiff notes that FRCP 26(e) requires a party to update its initial

21 disclosures unless “the additional . . . information has not otherwise been made known to

22 the other parties during the discovery process.” ECF No. 87 at 1 (quoting Fed. R. Civ. P.

23

24

25 4 Defendant states there are thirty-one such witnesses, but in its Motion it listed only twenty-six. See ECF

No. 73-1 at 3. The twenty-six witnesses include Maria Venegas, Jennifer Santos Inacio, Denise Ortega,

26 Terry Benavidez, Veronica Mariah Evers, Yvette Natalie Arriaga Viveros, Richard Hines, Joe Wonderly,

Gerardo Michael Tijerina, Lauren Christina Bond, Marco Junior Deltoro Puerto, Payton Holly Hicks,

27

Anne Cox, Mark Melden, Dede Echitey, Vicky Gay Deaton, Shawna Melva, Andy Schneider, Danny

28 Flores, Jenn Mann, Michelle Kirschbaum, Sebastino Pizzo, Debbie Tucker, Tennille Taylor, Krystal

1 26(e)(1)(A)). Here, Plaintiff contends that the witnesses at issue were “otherwise

2 disclosed” during discovery, id. at 2–3, and she provides a chart detailing when those

3 disclosures occurred, see id. at 7–22. Plaintiff also points out that FRCP 37(c) has an

4 exception allowing parties to use undisclosed evidence if “the failure was substantially

5 justified or is harmless.” Fed R. Civ. P. 37(c)(1). Plaintiff further argues that because

6 Defendant acknowledges being aware of the topics to which the witnesses will testify,

7 Defendant’s claims of unfair surprise are insincere. See ECF No. 87 at 7.

8 The Court will DENY Defendant’s first Motion. For one thing, the Court previously

9 denied Defendant’s attempt to strike Maria Venegas and Jennifer Inacio after concluding

10 they had both been “otherwise disclosed” in accordance with FRCP 26(a). See ECF No. 60

11 at 11–12. Defendant neither acknowledges this prior ruling nor provides any reason for

12 changing course now. More broadly, the Court is skeptical of Defendant’s attempt to use

13 a relatively vague motion in limine to challenge the admissibility of this many witnesses.

14 In contrast with Plaintiff, who presents documentation showing when each witness was

15 mentioned or purportedly otherwise disclosed during discovery, Defendant makes no effort

16 to explain why any specific witness was not sufficiently disclosed. The Court cannot

17 evaluate the admissibility of each witness with the materials provided and declines to

18 exclude the group wholesale. The Court instead encourages the Parties to work together

19 on shortening the list of potential witnesses. After that process, the Court will entertain a

20 more targeted challenge from Defendant if disputes remain.

21 II. Motion in Limine No. 2 to Exclude Evidence and Argument Concerning

22 Dismissed Claims

23 Defendant’s second Motion seeks to preclude Plaintiff from introducing evidence

24 that was relevant to her three dismissed claims (quid pro quo sexual harassment, disparate

25 treatment, and wrongful termination), but—in Alaska’s view—has no bearing on her

26 surviving causes of action (hostile work environment, failure to prevent harassment,

27 negligent retention, and negligent infliction of emotional distress (“NIED”)). See ECF

28 No. 74-1 at 3–4.

1 In particular, Defendant asks the Court to exclude evidence: “(1) that Plaintiff was

2 allegedly ‘ridiculed’ for reporting sexual harassment to HR; (2) that Plaintiff was allegedly

3 re-assigned to a purportedly lesser desired role of checking in passengers into a flight in

4 May 2019; (3) that Buenaflor and Lead CSA Brigette Lopez [(“Lopez”)] ‘falsely reported’

5 to upper management that Plaintiff subverted regulations; (4) that Lopez reassigned

6 Plaintiff without warning multiple times; (5) that Plaintiff was reassigned to less desirable

7 work roles; (6) that Buenaflor reported Plaintiff as impermissibly absent; (7) [regarding]

8 other alleged interactions by Buenaflor with [Lopez]; and (8) . . . regarding the purported

9 hostile environment that allegedly caused Plaintiff’s resignation.” Id. at 4 (citing to Pl.’s

10 Opp’n to Def.’s MSJ at 7–8, ECF No. 38). Defendant argues that the targeted evidence

11 has no “bearing on the prima facie elements of [Plaintiff’s] surviving claims.” Id. at 5.

12 First, Defendant explains that to establish a hostile work environment, Plaintiff must

13 “prove the conduct she alleges was based on her sex/gender.” Id. at 5 (emphasis omitted).

14 But, per Defendant, Plaintiff admitted that the incidents described above occurred because

15 she reported harassment, not because of her sex. Id. Defendant cites no authority to

16 support that argument. Next, Defendant claims—again without citing a single case—that

17 because the evidence at issue “has no bearing on Plaintiff’s underlying claim of sex-based

18 hostile work environment harassment, the evidence is likewise irrelevant to [her] failure to

19 prevent claim.” Id. at 5–6. Third, Alaska contends that, as much of the evidence “post-

20 dates Buenaflor’s purported sexual harassment of Plaintiff,” none of it bears on whether

21 “Alaska knew that Buenaflor had the alleged propensity to harass . . . before Plaintiff” was

22 allegedly harassed. Id. at 6. And finally, Defendant argues that because all of Defendant’s

23 alleged conduct was “inherently intentional,” it has no relevance to her NIED claim. Id.

24 In response, Plaintiff asserts that the targeted evidence is relevant to Plaintiff’s

25 hostile environment claim because (1) “[f]ederal and California courts have repeatedly

26 affirmed that post-harassment conduct that is not sexual in nature provides evidence of

27 sexual harassment,” ECF No. 85 at 3; (2) some of the evidence—e.g., Plaintiff’s decision

28 to resign based on the alleged harassment—speaks to her “subjective” perception that the

1 working environment was offensive, id. at 4; and (3) she reported much of the “facially

2 non-sexual harassment,” so evidence of such harassment speaks to Defendant’s

3 knowledge, id. at 4–5. Plaintiff adds that the evidence of continued harassment “goes

4 directly to [her] state of mind and mental and emotional distress damages.” Id. at 5.

5 Finally, Plaintiff claims that Defendant’s Motion is improperly broad. Id. at 6.

6 Regarding the hostile environment claim, Defendant fails to acknowledge that courts

7 have held facially non-sex-based, harassing conduct that occurs after sexual harassment

8 can constitute evidence of continuing sex-based harassment.5 Of course, to be relevant to

9 Plaintiff’s claim, both forms of alleged harassment must be connected to some degree—

10 e.g., be close in time or involve similar underlying conduct. See Craig v. M & O Agencies,

11 Inc., 496 F.3d 1047, 1056 (9th Cir. 2007). And the Court has previously noted that some

12 of the events targeted by Defendant lack a strong link to earlier-in-time acts of alleged

13 harassment. See ECF No. 65 at 48–49. But that discussion came in the context of

14 evaluating one of Plaintiff’s other claims and thus applying a different legal standard.

15 Under FEHA, “the existence of a hostile work environment depends upon ‘the totality of

16 the circumstances.’” Hughes v. Pair, 209 P.3d 963, 971 (Cal. 2009) (quoting Miller v.

17 Dep’t of Corr., 115 P.3d 77, 87 (Cal. 2005)). Defendant—dedicating all of three short

18 paragraphs to this issue—fails to engage with this analysis, and the Court declines to

19 litigate Alaska’s case on its behalf.6 See ECF No. 74-1 at 5.

20 / / /

21

22

5 See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998) (“[W]hat might be an

23

innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory

24 harassment, take on an altogether different character, causing a worker to feel demeaned . . . on account

of her gender.”); Dominguez v. Wash. Mut. Bank, 85 Cal. Rptr. 3d 705, 713 (Ct. App. 2008) (holding

25 conduct like “blocking [plaintiff’s] access to her work stations” and “lying to her about whether he had

mail ready for her to process” was “just another way . . . to harass [plaintiff] about her sexual orientation

26 without expressly saying so”).

27 6 As most of Defendant’s remaining arguments rely on the premise that the challenged evidence is not

28 relevant to Plaintiff’s hostile environment claim, see, e.g., ECF No. 74-1 at 5–6, those arguments fail as

1 As Defendant both fails to account for binding precedent and targets a wide swath

2 of evidence without arguing with any specificity why it should not be admitted, the Court

3 DENIES Defendant’s Second Motion in Limine.

4 III. Motion in Limine No. 3 to Exclude Evidence or References to the Reasons for

5 Mark Buenaflor’s Separation from Defendant

6 Defendant’s next Motion seeks to prevent Plaintiff from introducing evidence

7 pertaining to the reasons behind Buenaflor’s departure—which occurred in March of

8 2023—from his job with Defendant. See ECF No. 75-1 at 3. Defendant argues that said

9 evidence constitutes private information that is shielded from disclosure by the right to

10 privacy guaranteed in the California Constitution. See id. Defendant also argues that the

11 reasons for Buenaflor’s departure (1) have no probative value, as the separation occurred

12 over two years after the alleged harassment; and (2) could be used to make a “bad

13 character” argument and “inflame, confuse, and mislead the jury.” Id. at 4–5.

14 For her part, Plaintiff contends that any privacy interest Buenaflor may have is

15 outweighed by the utility of the information sought. See ECF No. 84 at 1. Specifically,

16 Plaintiff asserts that the evidence at issue could speak to whether Defendant took

17 “immediate and appropriate corrective action” after Defendant learned of Buenaflor’s

18 conduct. Id. at 3 (citation omitted). For example, if Buenaflor was terminated for non-

19 harassment-related reasons (e.g., underperformance), that information would demonstrate

20 “that Alaska promptly addresses issues of underperformance” but not of harassment. Id.

21 at 4. Plaintiff also distinguishes the cases cited by Defendant to support its privacy

22 argument as involving much broader disclosures, like “personnel, tenure, and promotion

23 files,” than the information at stake here. Id. at 2. Finally, Plaintiff takes the position that

24 if this evidence is kept from them, the jury will be left to speculate whether Defendant took

25 “corrective action” or if Buenaflor left for unrelated reasons. See id. at 3.

26 Neither party has informed the Court why Buenaflor left his position. So, while the

27 Court agrees that his departure might have little probative value because it occurred over

28 two years after he allegedly harassed Plaintiff, the Court is currently unable to evaluate the

1 relevance of—and unfair prejudice risked by—this evidence. Accordingly, the Court

2 RESERVES ruling on this Motion until the missing information is provided.7

3 IV. Motion in Limine No. 4 to Exclude “Me Too” Evidence

4 In this Motion, Defendant asks the Court to “exclude evidence or argument of any

5 alleged inappropriate conduct by Mark Buenaflor or any Alaska employees towards any

6 individual aside from Plaintiff.” ECF No. 76-1 at 2 (emphases added).

7 In support, Defendant first argues that such “me too” evidence is irrelevant to

8 Plaintiff’s claims. Specifically, Defendant contends that harassment Plaintiff did not

9 personally observe could not relate to how she perceived the hostility of her environment,

10 id. at 6–7; that the occurrence of workplace harassment does not constitute “proof that the

11 employer failed to take reasonable steps to prevent it,” id. at 7; and that as many of these

12 me-too incidents either went unreported to Defendant or occurred after Plaintiff was

13 allegedly harassed, such evidence does not bear on whether Defendant knew about

14 Buenaflor’s behavior, id. at 8. Next, Defendant claims that the presentation of me-too

15 evidence risks confusing the jury, wasting time, and unduly prejudicing Defendant “by

16 influencing the jury to be biased against Defendant for reasons having nothing to do with

17 Plaintiff’s claim[s].” Id. at 9–10. Lastly, Defendant invokes Rule 404 and predicts that

18 Plaintiff will use me-too evidence to imply that “because other employees . . . allegedly

19 encountered similar conduct, Plaintiff must have” too. Id. at 12.

20 Plaintiff contends Defendant’s fourth MIL represents an “abuse[]” of “the motion in

21 limine process” due to its length, the breadth of the evidence it seeks to exclude, and its

22 failure to identify with specificity the witnesses or testimony it targets. See ECF No. 83

23 at 5. Plaintiff also argues that evidence from me-too witnesses bears on numerous relevant

24 questions, including, inter alia, whether Defendant knew or should have known of the

25 harassment and whether the company took corrective actions, see id. at 6–9; whether the

26

27 7 At the MIL hearing, counsel for the Defendant informed the Court that Buenaflor was terminated for

28 “performance-based” and not harassment-related reasons. As that statement is not sufficient for the Court

1 harassment complained of was based on sex, see id. at 11–13; and whether a “reasonable

2 woman” would have considered the work environment to be hostile, see id. at 13–14.

3 Finally, Plaintiff contends that me-too evidence is also admissible to attack or support a

4 witness’s credibility and to rebut Defendant’s affirmative defenses, like lack of actual

5 knowledge and avoidable consequences. See id. at 16–18.

6 As an initial matter, the Court notes that me-too evidence “is neither per se

7 admissible nor per se inadmissible.” Sprint/United Mgmt. Co. v. Mendelsohn,

8 552 U.S. 379, 381 (2008). Indeed, such evidence may be relevant to Plaintiff’s claims in

9 multiple ways. See Zetwick v. Cnty. of Yolo, 850 F.3d 436, 445 (9th Cir. 2017) (holding

10 harassing conduct aimed at others “helps to generate genuine issues of material fact that

11 the environment was objectively hostile”); Pantoja v. Anton, 129 Cal. Rptr. 3d 384,

12 406–07 (Ct. App. 2011)8 (explaining in a hostile environment case that me-too evidence

13 can help establish “discriminatory intent”—i.e., “that the harassing conduct took place

14 because of the plaintiff’s sex”); Zucchella v. Olympusat, Inc., No. CV197335DSFPLAX,

15 2023 WL 2633947, at *12 (C.D. Cal. Jan. 10, 2023) (finding “me too” allegations helped

16 “demonstrate that [the employer] was on notice that multiple women had complained about

17 [an employee’s] conduct” in a FEHA failure-to-prevent claim)

18 Nor is there a strict rule requiring a plaintiff to have personally witnessed third-party

19 harassment; instead, the admissibility of me-too evidence “depends on many factors,

20 including how closely related the evidence is to the plaintiff’s circumstances and theory of

21 the case.” Sprint, 552 U.S. at 388; Meeks v. Autozone, Inc., 235 Cal. Rptr. 3d 161, 175

22 (Ct. App. 2018) (“‘Me too’ evidence . . . may be admissible . . . even where the conduct

23

24

8 Defendant’s attempt to distinguish Pantoja on the ground that it involved “a claim for sexual

25 discrimination,” and thus requires a showing of intent that sexual harassment claims do not, is entirely

unconvincing. See ECF No. 76-1 at 13–14. Indeed, that argument was explicitly addressed in Pantoja

26 itself. See 129 Cal. Rptr. 3d at 406–07 (“[T]he kind of intent or motivation required for hostile

environment harassment may be different from the kind required for discriminatory hiring or

27

firing. . . . Either way, however, the defendant’s discriminatory mental state is crucial. . . . There is no

28 reason why me-too evidence would be admissible . . . to prove the defendant’s discriminatory mental state

1 occurred outside the plaintiff’s presence and at times other than when the plaintiff was

2 employed.”). In other words, determining the admissibility of me-too evidence requires a

3 “fact-intensive, case-by-case analysis.” Kelly v. Boeing Co., No. 17-1679 DSF (MRWX),

4 2018 WL 11471263, at *3 (C.D. Cal. July 6, 2018).

5 Therein lies Defendant’s problem; Defendant’s breathtakingly broad Motion fails to

6 engage in the required fact-intensive inquiry. Defendant does not, for example, identify

7 the timing or conditions of any alleged incidents, nor compare such details to Plaintiff’s

8 circumstances. The Court thus lacks the information required to determine which pieces

9 of me-too evidence may be irrelevant, unfairly prejudicial, or unjustifiably time

10 consuming. See Brown v. Simpson Strong-Tie Co., Inc., No. 2:19-CV-01921-KJM-AC,

11 2022 WL 2135340, at *1–2 (E.D. Cal. May 16, 2022) (denying motion in limine to exclude

12 third-party’s termination and “other ‘me too’ evidence” because “the court ha[d]

13 insufficient information” to rule on it).

14 Consequently, the Court GRANTS IN PART AND DENIES IN PART

15 Defendant’s fourth Motion in Limine (ECF No. 76). It is well established that me-too

16 evidence cannot be used to make a propensity argument, see e.g., Zucchella,

17 2023 WL 2633947, at *16, but Defendant’s Motion is otherwise overly broad. Of course,

18 me-too evidence that is unnecessarily duplicative, unfairly prejudicial, or insufficiently

19 related to this case can be challenged at trial and will not be admitted. In the interim, the

20 Court encourages the Parties to work together towards narrowing the universe of evidence

21 that may be introduced at trial to preemptively address some of these issues.

22 V. Motion in Limine No. 5 to Preclude Use of “Golden Rule” and “Reptile Theory”

23 Arguments

24 Defendant’s fifth Motion asks the Court to Preclude Plaintiff’s counsel from

25 presenting “Golden Rule” or “Reptile Theory” questions, evidence, or argument to the jury

26 by “making statements to appeal to jurors’ concerns about their own experiences and the

27 safety of the community.” ECF No. 77-1 at 2. Defendant contends that golden rule

28 arguments—i.e., inviting jurors to imagine themselves in the plaintiff’s shoes—are

1 improper, as they invite the jury to decide the case based on biases rather than the facts and

2 the law. See id. at 3–4. Defendant further claims that reptile theory arguments, which shift

3 the jury’s attention “toward the possible injury or danger to the jurors themselves or to the

4 public,” constitute improper appeals to the jurors’ self-interest. Id. at 5. Per Defendant,

5 both kinds of argument should be excluded under FRE 403, as they are irrelevant to

6 Plaintiff’s claims and risk unfair prejudice to Defendant. Id. at 6.

7 Plaintiff agrees that “Golden Rule” arguments “ask[ing] the jurors to put themselves

8 in the shoes of the plaintiffs or defendants, and decide the case from that perspective,” are

9 generally prohibited. ECF No. 82 at 1. So, Plaintiff claims, she does not intend to make

10 such arguments during trial. Id. Plaintiff otherwise opposes the Motion, including

11 Defendant’s characterization of “Reptile Theory” arguments, because it is both broad and

12 vague. See id. at 2–3. Additionally, Plaintiff argues that the Motion is “an effort to

13 preclude Plaintiff from arguing either that Alaska violated laws and standards or that jurors

14 should consider workplace safety or deterrence of similar behavior.” Id. at 2. That attempt

15 is problematic, Plaintiff continues, because hostile-environment cases cannot be tried

16 without reference to the “concept of workplace safety.” Id.

17 The Court will GRANT IN PART AND DENY IN PART Defendant’s fifth

18 Motion in limine (ECF No. 77). The Parties appear to narrowly agree that “golden rule”

19 arguments about the calculation of damages are improper, so those arguments will be

20 excluded. However, Defendant’s Motion seems to target a much broader range of

21 arguments; indeed, it is unclear from the Parties’ briefing exactly what arguments might

22 fall into either category. And as “[t]he universe of objectionable phrasings is expansive,”

23 the Court “will not now endeavor to decide matters that require the benefit of verbatim

24 analysis and context to be properly considered.” Rosas v. GEICO Cas. Co., No.

25 218CV01200APGNJK, 2022 WL 2439575, at *1 (D. Nev. Jan. 26, 2022). Defendant’s

26 remaining concerns are more suitably addressed with trial objections.

27 / / /

28 / / /

1 VI. Defendant’s Motion in Limine No. 6 to Exclude Evidence and References to

2 EEOC Interview Notes

3 Alaska seeks to exclude “evidence and argument at trial” regarding—and preclude

4 “any reference to”—the Equal Employment Opportunity Commission’s (“EEOC”)

5 interviews or interview notes (collectively, the “EEOC Records”). ECF No. 78-1 at 2.

6 Defendant argues that the EEOC Records (1) are “rife with irrelevant accusations that have

7 no bearing on Plaintiff’s claims,” id. at 3; (2) consist of “layered hearsay and wholly

8 speculative” content, id. at 5; (3) will be used by Plaintiff as character evidence, see id.

9 at 6; and (4) will confuse the jury and waste judicial resources, see id. at 7.

10 Plaintiff argues that this request targets an impermissibly broad swath of potential

11 evidence. ECF No. 81 at 2. Relatedly, Plaintiff accuses Defendant of cherry-picking

12 statements from the EEOC Records while attempting to broadly label all such material as

13 inadmissible. See id. at 2–3. Further, Plaintiff contends that the EEOC Records are

14 relevant for multiple reasons, such as to show that Defendant knew harassment was

15 occurring or to corroborate Plaintiff’s claim that said harassment was severe or pervasive.

16 Id. at 4. Lastly, Plaintiff pushes back on Defendant’s hearsay contention, arguing that

17 individual statements in the Records either (1) are not offered for the truth of the matters

18 asserted; (2) fall under hearsay exceptions; and/or (3) are admissible for rehabilitating or

19 attacking the credibility of witnesses. See generally id. at 5–9.

20 The Court will DENY Defendant’s sixth Motion in Limine (ECF No. 78). At this

21 time, it appears at least some statements made in the EEOC Records could potentially be

22 admissible for various purposes. And though the Court is mindful of Defendant’s concern

23 about minitrials, Defendant swings too broadly by attempting to exclude “any reference

24 to” an entire category of evidence. See Faulstick v. S. Tire Mart, LLC, No. 2:13CV65-KS-

25 MTP, 2014 WL 4055571, at *5 (S.D. Miss. Aug. 14, 2014) (denying “broad-based request

26 for the peremptory exclusion of any EEOC-related materials” and deciding that the

27 “admission . . . of EEOC evidence w[ould] be on a case-by-case basis at trial”). Indeed,

28 Defendant cites no cases in which courts have wholesale excluded all EEOC materials,

1 whether on hearsay grounds or otherwise. At oral argument, the Parties agreed to work

2 towards narrowing the specific content within the EEOC Records, and corresponding

3 witness testimony, that the Parties intend to use at trial. After that occurs, Defendant may

4 bring a renewed, more specific challenge to records that remain in dispute.

5 VII. Motion in Limine No. 7 to Exclude Evidence or References to Plaintiff’s

6 Decision to Quit and Lost Wages

7 Alaska’s final Motion seeks to preclude Plaintiff from introducing evidence related

8 to her decision to quit her job and evidence of her lost wages. ECF No. 79-1 at 2.

9 Defendant argues, without citing a single case, that such evidence is “wholly irrelevant” to

10 Plaintiff’s surviving claims for sexual harassment, failure to prevent, negligent retention,

11 and NIED. See id. at 3. At oral argument, Defendant clarified its view that this evidence

12 is irrelevant because Plaintiff cannot recover economic damages under any of her claims

13 absent evidence of an adverse employment action. Defendant also contends in its Motion

14 that the evidence at issue would give Plaintiff another bite at the apple regarding her

15 dismissed claims for sexual discrimination and constructive discharge, create emotional

16 bias against Defendant, and waste time and judicial resources. Id. at 4.

17 Countering, Plaintiff first argues that two of Plaintiff’s surviving claims arise under

18 FEHA, which—unlike Title VII—does not require a constructive discharge before

19 economic damages become recoverable. ECF No. 80 at 4. Plaintiff also states that her

20 decision to resign is relevant to show “the extent to which Plaintiff subjectively believed

21 the environment to be harassing.” Id. at 7 (emphasis omitted). As evidence of Plaintiff’s

22 resignation and lost wages bears on at least some of her claims, Plaintiff continues,

23 Defendant’s Motion must be denied. See id. at 4–5.

24 Plaintiff next argues that Defendant failed to move for summary judgment on

25 Plaintiff’s prayer for lost wages and should not be allowed to do so through a motion in

26 limine. See id. at 5–6. Further, Plaintiff claims she will be prejudiced if this evidence is

27 excluded. Jurors will be informed of the timing of the harassment and Plaintiff’s

28 resignation, and they “may conclude that [Plaintiff] resigned for reasons unrelated to sexual

1 harassment” unless Plaintiff can tell them otherwise. Id.

2 Defendant’s main argument—that a plaintiff cannot recover economic damages

3 absent evidence of an adverse employment action—runs counter to FEHA policy and

4 precedent. True, under Title VII, “[a]n employee who resigns . . . cannot secure backpay

5 unless his employer constructively discharged him.” Sanchez v. City of Santa Ana,

6 915 F.2d 424, 431 (9th Cir. 1990). But “FEHA offers greater protection and relief to

7 employees than does Title VII.” Murillo v. Rite Stuff Foods, Inc., 77 Cal. Rptr. 2d 12, 17

8 (Ct. App. 1998). Indeed, under FEHA, “all relief generally available in noncontractual

9 actions . . . may be obtained.” Commodore Home Sys., Inc. v. Sup. Ct., 649 P.2d 912, 918

10 (Cal. 1982). FEHA thus allows plaintiffs to recover “all damages necessary to make [them]

11 whole.” Cloud v. Casey, 90 Cal. Rptr. 2d 757, 765–66 (Ct. App. 1999).

12 With the above principles in mind, courts have held that post-resignation, economic

13 damages are sometimes necessary to make victims of FEHA violations whole, even where

14 such victims suffered no constructive discharge or similar adverse employment action. See

15 McCoy v. Pac. Mar. Assn., 156 Cal. Rptr. 3d 851, 873 (Ct. App. 2013) (“[E]conomic

16 damages are awardable to appellant despite the absence of a constructive discharge.”);

17 Terry v. City of San Diego, No. 06-CV-1459-MMA CAB, 2012 WL 216591, at *2

18 (S.D. Cal. Jan. 24, 2012) (“California law permits an award of post-resignation damages

19 for violations of FEHA irrespective of whether a plaintiff claims constructive discharge.”).

20 In other words, the experience of sexual harassment can justify economic damages. Terry

21 v. Preovolos, No. D060904, 2013 WL 51932, at *2, *7 (Cal. Ct. App. Jan. 4, 2013)

22 (holding “a victim of sexual harassment or other discrimination under FEHA who resigns

23 from his or her job may seek and be awarded lost wages” even though the jury found

24 plaintiff had “not suffer[ed] any adverse employment action”).

25 That is not to say all victims of a hostile work environment can successfully recover

26 post-resignation, economic damages; they must still establish causation. For Plaintiff “to

27 recover damages for lost wages, she must prove that her decision to resign was proximately

28 caused by . . . unlawful sexual harassment under FEHA.” Lindsey v. Costco Wholesale

1 Corp., No. 15-CV-03006-WHO, 2016 WL 5815286, at *3 (N.D. Cal. Oct. 5, 2016). Put

2 differently, to recover these damages Plaintiff will need to prove that “the underlying

3 FEHA violation”—e.g., the hostile work environment—was “a factor that a reasonable

4 person would consider to have contributed to her lost wages.” Id. at *4 (citing CACI 430,

5 Causation: Substantial Factor). Defendant’s Motion, however, does not address this issue.

6 And in either event, “[p]roximate cause is a question of fact for the trier of fact and

7 generally cannot be decided as a matter of law.” Preovolos, 2013 WL 51932, at *8.

8 Defendant’s central contention is unsupported by caselaw, and its barebones

9 alternative argument regarding the risk of unfair prejudice is equally unconvincing.

10 Accordingly, the Court will DENY Defendant’s seventh Motion in Limine (ECF No. 79).

11 CONCLUSION

12 In light of the foregoing, the Court:

13 1) GRANTS IN PART AND DENIES IN PART Plaintiff’s first Motion in

14 Limine (ECF No. 72);

15 2) GRANTS IN PART AND DENIES IN PART Plaintiff’s second Motion in

16 Limine (ECF No. 72);

17 3) DENIES Plaintiff’s third Motion in Limine (ECF No. 72);

18 4) GRANTS Plaintiff’s fourth Motion in Limine (ECF No. 72);

19 5) GRANTS IN PART AND DENIES IN PART Plaintiff’s fifth Motion in

20 Limine (ECF No. 72);

21 6) DENIES Defendant’s first Motion in Limine (ECF No. 73);

22 7) DENIES Defendant’s second Motion in Limine (ECF No. 74);

23 8) RESERVES its ruling on Defendant’s third Motion in Limine (ECF No. 75);

24 9) GRANTS IN PART AND DENIES IN PART Defendant’s fourth Motion

25 in Limine (ECF No. 76);

26 10) GRANTS IN PART AND DENIES IN PART Defendant’s fifth Motion in

27 Limine (ECF No. 77);

28 11) DENIES Defendant’s sixth Motion in Limine (ECF No. 78); and

1 12) DENIES Defendant’s seventh Motion in Limine (ECF No. 79).

2 || The Court reiterates that these rulings are without prejudice, and that the Parties may make

3 || valid contemporaneous objections at trial concerning the matters discussed in this Order.

4 ||The Court also reserves the right to change any of these rulings based on the testimony

5 ||developed at trial. Further, as discussed at the MIL hearing, the Court will entertain a

6 renewed, better tailored pre-trial challenge regarding the issues raised in Defendant’s first,

7 fourth, and sixth Motions after the Parties work to narrow the scope of evidence expected

8 be presented at trial.

9 IT IS SO ORDERED.

10 || Dated: January 23, 2024 tt

1 ja Janis L. Sammartino

United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28