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6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOE CARMACK, on behalf of himself No. 2:25-cv-01481-DJC-CSK and all others similarly situated, 12 Plaintiff, 13 ORDER v. 14 ACRT PACIFIC, LLC, a California 15 Limited Liability Company; and DOES 1 through 50, inclusive, 16 Defendant(s). 17 18 Before the Court are a Motion to Remand (ECF No. 12) and a Motion for 19 Judgment on the Pleadings (ECF No. 10). Plaintiff originally filed suit in the Superior 20 Court of California, County of San Joaquin. Defendant removed the action to this 21 Court on the basis that Section 301 of the Federal Labor Relations Management Act 22 (“LRMA”) preempts Plaintiff’s claim for overtime wages — that is otherwise grounded in 23 state law — because Plaintiff’s employment was subject to a collective bargaining 24 agreement (“CBA”). Plaintiff brings the present Motion to Remand arguing that his 25 rights asserted do not arise under or rely on an interpretation of the CBA and thus are 26 not preempted by Section 301 of the LRMA. Relatedly, Defendant brings a Motion for 27 Judgment on the Pleadings arguing that because Plaintiff’s claim for overtime wages 28 is preempted, it must be dismissed. The Court holds that Defendant properly 1 removed this action based on federal preemption of the overtime wages claim.

2 However, because this claim is dismissed with prejudice on separate grounds, the

3 Court does not have federal jurisdiction over any remaining claim, declines to exercise

4 supplemental jurisdiction, and therefore remands this matter to state court.

5 Accordingly, the Court GRANTS Plaintiff’s Motion to Remand and GRANTS IN PART

6 Defendant’s Motion for Judgment on the Pleadings. 7 BACKGROUND 8 Joe Carmack (“Plaintiff”) worked for ACRT Pacific, LLC (“Defendant”) as a 9 Vegetation Manager Inspector from January 2023 until December 2023. (Compl. 10 ¶ 16, ECF No. 1-2.) While employed, Plaintiff was covered by the collective 11 bargaining agreement between Defendant and Local Union 1245 of the International 12 Brotherhood of Electrical Workers (hereinafter, the “CBA”). (CBA, ECF No. 10-3.) 13 Plaintiff alleges that Defendant failed to pay him and his coworkers for regular hours, 14 overtime, and sick pay. (Id. ¶ 3.) Plaintiff furthers that Defendant failed to provide 15 meal breaks, itemized wage statements, and timely payment of wages. (Id.) On 16 behalf of a putative class, Plaintiff filed a complaint (“the Complaint”), alleging nine 17 claims under California law. (Id. at 1.) 18 Plaintiff originally filed suit in the Superior Court of California, County of San 19 Joaquin. (Notice of Removal, ECF No. 1.) Defendant then timely removed the case. 20 (See id.) Defendant asserted that the Court has federal question jurisdiction because 21 Plaintiff’s Second Cause of Action — a claim for violation of state law regarding 22 overtime wages — is preempted by Section 301 of the LRMA (hereinafter, “Section 23 301”). (Id. at 4.) 24 Plaintiff now moves to remand the case. (Pl.’s Mot., ECF No. 12.) Plaintiff 25 argues that the Second Cause of Action is not preempted or, alternatively, that federal 26 jurisdiction does not arise from the face of the Complaint. (Id. at 1–4.) Three days 27 before Plaintiff filed his Motion, Defendant brought a Motion for Judgment on the 28 Pleadings. (Def.’s Mot., ECF No. 10.) Defendant argues that because the Second 1 Cause of Action is preempted, it must be dismissed.1 (Id. at 1, 3–6.) Separately,

2 Defendant argues that the Sixth Cause of Action for inaccurate wage statements must

3 be dismissed as time-barred. (Id. at 7.)

4 The matter is fully briefed and was submitted without oral argument pursuant to

5 Local Rule 230(g). (ECF No. 21.) Per the Court’s Order, see ECF No. 18, the parties

6 submitted supplemental briefs regarding the Second Cause of Action and the Court’s 7 exercise of supplemental jurisdiction. (Pl.’s Supp. Brief, ECF No. 20; Def.’s Supp. Brief, 8 ECF No. 19.) 9 DISCUSSION 10 I. Requests for Judicial Notice 11 A district court may take judicial notice of a fact that is “not subject to 12 reasonable dispute because it can be accurately and readily determined from sources 13 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). 14 Defendant makes two requests for judicial notice (“RJN”). First, Defendant seeks 15 judicial notice of the CBA. (RJN In Support of Def.’s Mot, ECF No. 10-2.) Second, 16 Defendant asks the Court to take notice of state and city records of minimum wage 17 rates. (RJN In Support of Def.’s Opp’n, ECF No. 15-1.) These requests are 18 unopposed. 19 The Court finds that both documents are suitable for judicial notice. See Rose 20 v. Cemex Constr. Materials Pac., LLC, No. 2:23-CV-01979-WBS-AC, 2024 WL 307790, 21 at *1 (E.D. Cal. Jan. 26, 2024) (granting judicial notice of a CBA for preemption issues 22 on motion to dismiss); City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 n.2 (9th Cir. 23 2004) (holding a court “may take judicial notice of a record of a state agency not 24 subject to reasonable dispute”). Accordingly, the Court GRANTS Defendant’s 25 Requests for Judicial Notice (ECF Nos. 10-2 and 15-1). 26

27 1 While the overtime claim is presented in the Second Cause of Action, Defendant points out that there are derivative overtime claims in the Sixth, Seventh, and Ninth Causes of Action. (See Def.’s Mot. at 6; 28 Compl. ¶¶ 80, 87, 94.) 1 II. Motion to Remand

2 A. Legal Standard

3 Under 28 U.S.C. Section 1441, a defendant may remove a civil action from state

4 court to federal court if there exists original jurisdiction. City of Chicago v. Int’l Coll. of

5 Surgeons, 522 U.S. 156, 163 (1997). Courts strictly construe the removal statute

6 against removal, and federal jurisdiction must be rejected if there is any doubt as to 7 the right of removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party 8 removing a case to federal court “has the burden to prove, by a preponderance of the 9 evidence, that removal is proper.” Geographic Expeditions, Inc. v. Estate of Lhotka ex 10 rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010). 11 B. Second Cause of Action 12 Under the “well-pleaded complaint” rule, “federal jurisdiction exists only when a 13 federal question is presented on the face of the plaintiff’s properly pleaded 14 complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). However, “[a] 15 corollary to the well-pleaded complaint rule is the ‘complete preemption’ doctrine, 16 which applies in cases in which ‘the preemptive force of a statute is so extraordinary 17 that it converts an ordinary state common-law complaint into one stating a federal 18 claim for purposes of the well-pleaded complaint rule.’” In re NOS Commc’ns, MDL 19 No. 1357, 495 F.3d 1052, 1057 (9th Cir. 2007) (quoting Caterpillar, 482 U.S. at 393.). 20 Section 301 carries this extraordinary preemptive force. Curtis v. Irwin Indus., 21 Inc., 913 F.3d 1146, 1152 (9th Cir. 2019). Where a CBA governs the claim against an 22 employer, Section 301 preempts the claim and converts it to a federal question over 23 which a federal court has jurisdiction. Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 24 1059 (9th Cir. 2007). In effect, Section 301 “displace[s] entirely any state cause of 25 action for violation of contracts between an employer and a labor organization,” 26 Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 23 (1983), such that “any 27 claim purportedly based on [a] . . . state law is considered, from its inception, a federal 28 claim, and therefore arises under federal law,” Caterpillar, 482 U.S. at 393. 1 To determine if Section 301 preemption applies, courts apply the two-step

2 inquiry articulated in Burnside. Curtis, 913 F.3d at 1152. First, if the asserted cause of

3 action involves a “right [that] exists solely as a result of the [CBA],” then the claim is

4 preempted. Id. (citations omitted). If the cause of action involves a right independent

5 of the CBA, the court proceeds to the second step to determine whether a plaintiff’s

6 right under state law is nonetheless “substantially dependent” on analysis of the CBA. 7 Burnside, 491 F.3d at 1059. If the claim involves an “active dispute over the meaning 8 of contract terms” in the CBA, then the claim is preempted. Curtis, 913 F.3d at 1153 9 (citation omitted). 10 Defendant alleged that Plaintiff’s Second Cause of Action is preempted by 11 Section 301. (Notice of Removal at 4.) This claim is for failure to pay overtime wages 12 in violation of California Labor Code Section 510. (Compl. ¶¶ 56–61.) Defendant 13 argues that Plaintiff’s allegations of overtime wages are exempted by Labor Code 14 section 514, which exempts employers from complying with Section 510 if their 15 employees are covered by a CBA that: (1) “expressly provides for the wages, hours of 16 work, and working conditions of the employees”; (2) “provides premium wage rates 17 for all overtime hours worked”; and (3) provides “a regular hourly rate of pay for those 18 employees of not less than 30 percent more than the state minimum wage.” Cal. Lab. 19 Code § 514; see also Curtis, 913 F.3d at 1154. 20 The evidence subject to judicial notice demonstrates that Plaintiff was covered 21 by a CBA that satisfied the criteria laid out in Section 514. First, the CBA provides for 22 the wages of employees. (CBA, Ex. A.) It also provides for the hours of work and 23 otherwise details working conditions. (Id., Arts. III–VI.) Second, the CBA provides 24 premium wage rates for overtime hours worked, as any work performed outside of 25 regular scheduled working hours (and on weekends and holidays) “shall be paid for at 26 double the regular straight-time rate of pay.” (Id., Art. IV.) Finally, as Defendant 27 demonstrates, the CBA provides a regular hourly rate of pay more than 130% of the 28 state minimum wage. (Id., Ex. A; Def.’s Opp’n at 3, ECF No. 15.) For example, as a 1 Vegetation Management Inspector in January 2023, Plaintiff earned $38.74 per hour,

2 which was more than double the statewide minimum wage of $15.50 per hour. (See

3 CBA, Ex. A; RJN, Ex. A, ECF No. 15-2.)

4 In his Motion, Plaintiff did not contest that the CBA satisfies the criteria in

5 Section 514, even though Defendant clearly relied upon Section 514’s exemption in

6 its Notice of Removal to assert federal jurisdiction. (See Pl.’s Mot. at 1–4.) After 7 Defendant reiterated this argument in its opposition brief, Plaintiff decided to contest 8 this argument for the first time in his reply brief. (See Pl.’s Reply at 2, ECF No. 17.) 9 Because “[a]rguments raised for the first time in a reply brief are waived,” the Court 10 need not consider Plaintiff’s argument. See Autotel v. Nevada Bell Tel. Co., 697 F.3d 11 846, 852 n.3 (9th Cir. 2012). Even if the Court considered this new argument, it would 12 find Plaintiff’s contention unavailing. Instead of contesting that the CBA satisfies a 13 criterion in Section 514, Plaintiff confusingly argues that the CBA has an inadequate 14 grievance procedure. (See Pl.’s Reply at 2–3.) Plaintiff provides no statutory or legal 15 authority explaining why an alleged shortcoming in the grievance procedure prevents 16 the CBA from satisfying Section 514. Indeed, Section 514 does not concern a 17 grievance procedure but rather focuses on the requirements outlined above. See Cal. 18 Lab. Code § 514. Accordingly, the Court rejects Plaintiff’s argument and holds that 19 the CBA satisfies Section 514.2 20 The CBA’s compliance with Section 514 is dispositive of the Court’s inquiry into 21 whether it has federal jurisdiction. While Plaintiff cites district court cases to support 22 its position that the Court cannot exercise jurisdiction based on Defendant’s 23 introduction of the CBA (as Plaintiff did not plead any allegations regarding the 24 agreement), those cases were all decided before Curtis. (See Pl.’s Mot. at 2.) “[T]he 25 Ninth Circuit’s ruling in Curtis v. Irwin Industries, Inc. is decisive in demonstrating that a 26 plaintiff’s right to unpaid overtime is preempted under the first step of the Ninth 27 2 The Court elsewhere addresses Plaintiff’s argument that the CBA should be rendered invalid because 28 it is allegedly unconscionable. (See infra Discussion Part III.B.) 1 Circuit’s preemption test if a CBA meets the requirements of § 514.” Martinez v. Omni

2 Hotels Mgmt. Corp., 514 F. Supp. 3d 1227, 1236 (S.D. Cal. 2021) (citation omitted).

3 Though Curtis dealt with a motion to dismiss, “an overwhelming majority of courts

4 have applied Curtis to exercise original jurisdiction over claims covered by CBAs

5 compliant with section 514.” Alexander v. Bio-Pac., LLC, No. 2:23-CV-00139-SPG-PD,

6 2023 WL 2573866, at *4 (C.D. Cal. Mar. 20, 2023) (collecting cases); see also Wallace 7 v. Medic Ambulance Serv., Inc., No. 2:24-CV-02459-DAD-JDP, 2025 WL 1142155 (E.D. 8 Cal. Apr. 11, 2025); Shanley v. Tracy Logistics LLC, 756 F. Supp. 3d 820 (E.D. Cal. 9 2024). Because Section 514 exempts Plaintiff from the protections of Section 510, his 10 overtime cause of action involves a “right [that] exists solely as a result of the” CBA, 11 and the Court need not address the second inquiry articulated in Burnside. See 12 Curtis, 913 F.3d at 1152. As such, the Court has federal jurisdiction based on the 13 Second Cause of Action. 14 III. Motion for Judgment on the Pleadings 15 A. Legal Standard 16 Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are 17 closed — but early enough not to delay trial — a party may move for judgment on the 18 pleadings.” Fed. R. Civ. P. 12(c). The same legal standard applicable to a Rule 19 12(b)(6) motion applies to a Rule 12(c) motion. Dworkin v. Hustler Mag. Inc., 867 F.2d 20 1188, 1192 (9th Cir. 1989). Accordingly, the allegations of the non-moving party must 21 be accepted as true, while any allegations made by the moving party that have been 22 denied or contradicted are assumed to be false. MacDonald v. Grace Church Seattle, 23 457 F.3d 1079, 1081 (9th Cir. 2006). The facts are viewed in the light most favorable 24 to the non-moving party and all reasonable inferences are drawn in favor of that party. 25 Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, 360 (9th Cir. 26 2005). “[J]udgment on the pleadings is properly granted when, taking all the 27 allegations in the non-moving party’s pleadings as true, the moving party is entitled to 28 judgment as a matter of law.” Marshall Naify Revocable Tr. v. United States, 672 F.3d 1 620, 623 (9th Cir. 2012) (citation omitted).

2 B. Second Cause of Action

3 Defendant argues that it is entitled to judgment as to the Second Cause of

4 Action because this claim is preempted by Section 301. (Def.’s Mot. at 3.) The Court

5 already held that Section 301 preempts Plaintiff’s overtime wage claim. See supra

6 Discussion Part II.B. However, LRMA preemption of a state-law claim does not 7 automatically result in the cause of action being dismissed. As this Court explained 8 elsewhere: 9 Defendant misunderstands the effect of LRMA preemption. Where a claim arises out of a collective bargaining agreement, preemption under 10 section 301 of the LRMA effectively converts any state law claim on the issue into a federal claim based on the bargaining agreement. That a 11 claim is preempted under section 301 does not necessarily require that the claim be dismissed, unlike preemption under a statutory scheme 12 which robs the federal court of jurisdiction. If a claim is preempted under the LRMA, a defendant must still prove that the claim is required to be 13 dismissed on a separate ground. 14 Renteria-Hinjosa v. Sunsweet Growers, Inc., No. 2:23-CV-01413-DJC-DB, 2023 WL 15 6519308, at *7 (E.D. Cal. Oct. 5, 2023) (citations omitted), aff’d, No. 23-3379, (9th Cir. 16 Aug. 14, 2025). Accordingly, because the Second Cause of Action is preempted, this 17 claim is converted into a federal claim under the CBA, and Defendant provides no 18 reason to dismiss this converted claim. 19 Despite Defendant’s failure to properly address this issue in the initial briefing,3 20 the Court does find that Plaintiff’s claim for overtime wages — which the Court found to 21 be preempted by Section 301 — must be dismissed for Plaintiff’s failure to allege that 22 he engaged in the grievance procedure at all, including those parts clearly applicable 23 to individual employees. “[A]n employee seeking to vindicate personal rights under a 24

25 3 After the matter was submitted on the papers, the Court ordered supplemental briefing on the following issues: “First, assuming the Court concludes it otherwise has federal question jurisdiction over 26 the Second Cause of Action, the parties should address whether the Court should dismiss this claim for Plaintiff's failure to allege exhaustion of the grievance procedure outlined in the collective bargaining 27 agreement. Second, if the Court dismisses the Second Cause of Action, the parties should address whether the Court should exercise supplemental jurisdiction over the remaining claims.” (ECF No. 18). 28 Both Parties filed a response. (ECF Nos. 19, 20.) 1 collective bargaining agreement must first attempt to exhaust any mandatory or

2 exclusive grievance procedures provided in the agreement.” Soremekun v. Thrifty

3 Payless, Inc., 509 F.3d 978, 985–86 (9th Cir. 2007). The “failure to exhaust

4 contractually mandated procedures precludes judicial relief for breach of the

5 collective bargaining agreement.” Id. at 986. As such, a plaintiff must allege in the

6 complaint that they exhausted the grievance procedures. Id. at 988 (collecting cases). 7 The CBA contains a grievance procedure for purposes of dispute resolution 8 between Defendant and its employees’ union. (CBA, Art. 1.) The grievance 9 procedure sets forth a five-step process for resolving disputes. If after the fourth step 10 of the grievance procedure the dispute is not settled, the dispute may be referred to 11 arbitration. (Id.) The arbitration procedure further provides that the decision of the 12 arbitrator shall be final and binding on Defendant and the union. (Id.) Plaintiff has not 13 alleged that he initiated, much less completed, any part of the five-step grievance 14 procedure for any dispute regarding his employment, including his overtime claim. 15 As such, the parties agree that this claim must be dismissed. (Pl.’s Supp. Brief at 1; 16 Def.’s Supp. Brief at 3.) 17 Plaintiff argues in his opposition brief that the grievance procedure is 18 unconscionable and therefore the CBA should be rendered invalid. (Pl.’s Opp’n at 1– 19 3, ECF No. 14.) The Court is not persuaded by either of Plaintiff’s main arguments. 20 First, Plaintiff maintains that the CBA’s requirement that Defendant and the union split 21 arbitration fees violates state law. (Id. at 2.) Plaintiff relies on the California Supreme 22 Court’s holding that “when an employer imposes mandatory arbitration as a condition 23 of employment, the arbitration agreement or arbitration process cannot generally 24 require the employee to bear any type of expense that the employee would not be 25 required to bear if he or she were free to bring the action in court.” Armendariz v. 26 Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 110–11 (2000) (emphasis original). 27 Plaintiff does not explain how the CBA requires him to bear a type of expense he 28 would not be required to bear if he was free to bring action in court. Indeed, an 1 individual employee does not even bear arbitration expenses, as the union splits fees

2 with Defendant. (See CBA at 2.) As such, Plaintiff fails to establish that the CBA

3 violates state law.

4 Plaintiff’s second argument for holding the CBA unconscionable is that the

5 entire grievance process is “illusory” because there are five steps to navigate and

6 arbitration is not even guaranteed but rather contingent on a decision of the Labor- 7 Management Committee. (Pl.’s Opp’n at 2; see also CBA, Art. I.) To support his 8 position, Plaintiff relies on OTO, L.L.C. v. Kho, where the California Supreme Court 9 found an arbitration agreement unconscionable because it required the arbitration 10 process to adhere to “all rules of pleading (including the right of demurrer), all rules of 11 evidence, all rights to resolution of the dispute by means of motions for summary 12 judgment, judgment on the pleadings, and judgment under Code of Civil Procedure 13 Section 631.8.” 8 Cal. 5th 111, 119 (2019). Because the arbitration process 14 “effectively require[d] that employees hire counsel” to navigate it, the court held that 15 the arbitration agreement “effectively block[ed] every forum for the redress of 16 disputes, including arbitration itself.” Id. at 134 (citation omitted). Kho is inapposite 17 because the arbitration process here is “carried out in accordance with the rules of the 18 American Arbitration Association,” not the complex legal rules at place in Kho. (CBA, 19 Art. I.) There is no indication that an employee such as Plaintiff would need to retain 20 legal counsel or bear some other expense to navigate the process up to arbitration, at 21 which point the arbitration expenses would be split between Defendant and the 22 union. (Id.) As such, Plaintiff’s arguments fail and the Court declines to invalidate the 23 CBA. 24 Because Plaintiff has not alleged that he exhausted his claims under the 25 grievance procedure set forth in the CBA, Plaintiff’s claim for overtime wages must be 26 dismissed. As such, the Second Cause of Action is dismissed, as is any derivative 27 28 1 claim for overtime wages.4 (See Def.’s Mot. at 6.) Because Plaintiff requests this claim

2 be dismissed with prejudice, see Pl.’s Supp. Brief at 1, the Court will not grant leave to

3 amend. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)

4 (denial of leave to amend appropriate where amendment would be futile because the

5 plaintiff has no additional facts to plead); Renteria-Hinjosa, 2023 WL 6519308, at *8

6 (denying leave to amend because plaintiff confirmed at the hearing that they could 7 not allege to have engaged in the grievance procedure). 8 IV. Supplemental Jurisdiction 9 Under 28 U.S.C. Section 1367, where a federal court has jurisdiction over any 10 claim, it may exercise supplemental jurisdiction over all other claims which are related 11 to the claims over which it has original jurisdiction. 28 U.S.C. § 1367(a); United Mine 12 Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). Where the only claim over which 13 the Court has jurisdiction must be dismissed, courts generally decline to retain 14 jurisdiction over Plaintiff’s remaining state claims. See Gibbs, 383 U.S. at 726 (“[I]f the 15 federal claims are dismissed before trial, . . . the state claims should be dismissed as 16 well.”); see also 28 U.S.C. § 1367(c)(3). Plaintiff favors remand, see Pl.’s Supp. Brief at 17 2–5, and Defendant concedes that the Court has the discretion to remand, see Def.’s 18 Supp. Brief at 7. The Court therefore exercises its discretion not to retain jurisdiction 19 and remands the case back to state court. Accord Renteria-Hinjosa, 2023 WL 20 6519308, at *8 (remanding action to state court after dismissing the only claim 21 preempted by Section 301); Corlew v. Superior Duct Fabrication, Inc., No. 22-CV- 22 04466-JLS-E, 2022 WL 17834201, at *11 (C.D. Cal. Dec. 21, 2022) (same). 23 //// 24 //// 25 4 The other claims which are not preempted do not require a showing of exhaustion because they do 26 not arise under the CBA like the untimely overtime wages claim does. “[A]n employee covered by a CBA is not required to exhaust the agreement’s grievance procedure for claims that are not based on 27 the CBA but arise from statutory rights independent of that agreement.” Lim v. Prudential Ins. Co. of Am., 36 F. App’x 267, 271 (9th Cir. 2002) (quoting Albertson’s Inc. v. United Food & Commercial 28 Workers Union, 157 F.3d 758, 760–61 (9th Cir.1998)). 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS Plaintiff's Motion to Remand 3 (ECF No. 12) and GRANTS IN PART Defendant's Motion for Judgment on the 4 Pleadings (ECF No. 10). Specifically, the Court dismisses with prejudice the Second 5 Cause of Action and any derivative claim for overtime wages. Because the Court 6 declines to exercise supplemental jurisdiction, tt does not reach Defendant's Motion 7 as to whether the Sixth Cause of Action is time-barred. 8 The Clerk of the Court shall remand this matter to the County of San Joaquin 9 Superior Court. 10 14 IT IS SO ORDERED. 12 | Dated: _August 14, 2025 “Dane A Ch brett Hon. Daniel alabretta 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12