Scottsdale Insurance Company v. CNC Technologies LLC et al

REPLY In Support of NOTICE OF MOTION AND MOTION to AMEND Judgment,, 160 164

C.D. Cal.January 14, 2019

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COZEN O’CONNOR Valerie D. Rojas, State Bar No. 180041 vrojas@cozen.com Michael V. Ruocco, State Bar No. 297414 mruocco@cozen.com 601 South Figueroa Street, Suite 3700 Los Angeles, California 90017-5556 Telephone: 213.892.7900 Facsimile: 213.892-7999 Attorneys for Plaintiff/Counter-Defendant SCOTTSDALE INSURANCE COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SCOTTSDALE INSURANCE COMPANY, an Ohio corporation, Plaintiff, v. CNC TECHNOLOGIES, LLC, a California corporation, RONALD MAGOCSI, JAMES HYMAN, ALEX GIUFFRIDA, BABETTE SCHRANK, and KEITH HANEY, Defendants. AND RELATED MATTERS CASE NO. 2:17-cv-03190 VAP (Ex) [Assigned for all purposes to Honorable Judge Virginia A. Phillips] PLAINTIFF/COUNTER- DEFENDANT SCOTTSDALE INSURANCE COMPANY’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO AMEND THE JUDGMENT PURSUANT TO F.R.C.P. 59(E) TO INCLUDE PREJUDGMENT INTEREST, COSTS, AND POST-JUDGMENT INTEREST Date: January 28, 2019 Time: 2:00 p.m. Courtroom: 8A TO ALL PARTIES AND THEIR COUNSEL OF RECORD: COMES NOW Plaintiff and Counter-Defendant, Scottsdale Insurance Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 1 of 14 Page ID #:5902 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Company (“Scottsdale”), by and through its undersigned counsel of record, and hereby submits this Reply to Alex Giuffrida, Ronald Magocsi, James Hyman, Babette Schrank, Keith Haney (“Individual Defendants”) and CNC Technologies, LLC’s (“CNC”) (collectively “Defendants”) Opposition to Scottsdale’s Motion to Amend the Judgment Pursuant to Federal Rule of Civil Procedure 59(e) to include Prejudgment Interest, Costs, and Post-Judgment Interest (“Motion”). Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 2 of 14 Page ID #:5903 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION AND SUMMARY OF ARGUMENT .............................. 1 II. LEGAL ARGUMENT .................................................................................... 2 A. Defendants’ Opposition Amounts to a Motion for Reconsideration of the Summary Judgment Ruling ............................. 2 B. California Civil Code § 3289 Applies Because a Claim for Reimbursement of Settlement Proceeds is Considered a Quasi-Contractual Claim....................................................................... 4 C. Scottsdale’s Damages are Certain ......................................................... 5 D. Scottsdale Is Not Estopped from Seeking Prejudgment Interest ................................................................................................... 7 E. Defendants Do Not Dispute that Scottsdale is Entitled to Its Costs as a Matter of Law ....................................................................... 8 F. Defendants Do Not Dispute that Scottsdale is Entitled to Post-Judgment Interest on the Settlement Payment, the Total Prejudgment Interest, and Costs at the Rate of 2.67%, Compounded Annually ......................................................................... 8 III. CONCLUSION ............................................................................................... 9 Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 3 of 14 Page ID #:5904 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Air Separation, Inc. v. Underwriters at Lloyd’s of London, 45 F.3d 288 (9th Cir. 1995) .................................................................................. 8 Bhatnagar v. Surrendra Overseas Ltd. 52 F.3d 1220 (3rd Cir. 1995) ................................................................................ 4 Dairy Employees Union Local No. 17 Christian Labor Ass’n of the U.S. Pension Trust v. Ferreira Dairy, 2015 WL 1952308 (C.D. Cal. 2015) .................................................................... 4 Dawson v. City of Seattle, 435 F.3d 1054 (9th Cir. 2006) .............................................................................. 8 Geneva College v. Sebelius, 941 F.Supp.2d 672 (W.D. PA 2013) .................................................................... 4 Northrop Corp. v. Triad Int’l Mktg., S.A., 842 F.2d 1154 (9th Cir. 1988) .............................................................................. 8 State Cases Blue Ridge Ins. Co. v. Jacobsen, 25 Cal.4th 489 (2001) ....................................................................................... 3, 5 Buss v. Superior Court, 16 Cal.4th 35 (1997) ............................................................................................. 5 George v. Double–D Foods, Inc., 155 Cal.App.3d 36 (1984) .................................................................................... 5 Hartford Accident & Indemnity Co. v. Sequoia Ins. Co., 211 Cal.App.3d 1285 (1989) ................................................................................ 6 Overholser v. Glynn, 267 Cal.App.2d 800 (1968) .................................................................................. 6 Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1 (1995) ............................................................................................... 7 Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 4 of 14 Page ID #:5905 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Statutes 28 U.S.C. § 1961 ........................................................................................................ 9 28 U.S.C. § 1961(b) ................................................................................................... 8 Federal Rule of Civil Procedure 54(d) ...................................................................... 8 Federal Rules of Civil Procedure Rule 54(d)(1)........................................................ 8 State Statutes California Civil Code § 3287(a) ............................................................................ 5, 6 California Civil Code § 3289 ................................................................................. 4, 5 Rules Local Rule 7–18 ......................................................................................................... 4 Local Rule 7-18 ..................................................................................................... 3, 4 Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 5 of 14 Page ID #:5906 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT Defendants’ Opposition to Scottsdale’s motion to amend the judgment (“Motion”) amounts to a motion for reconsideration of this Court’s order granting Scottsdale’s motion for summary judgment. Defendants’ arguments are improper and should be disregarded because this Court already found as a matter of law that Scottsdale is entitled to reimbursement of the Settlement Payment, plus interest. Dkt 160. Further, a motion for reconsideration requires a noticed motion, which Defendants chose not to file. Moreover, even if Defendants timely filed a motion for reconsideration, there is no basis to grant such a motion because there is no material difference in fact or law or a manifest showing of a failure to consider material facts presented to the Court. Scottsdale is entitled to amend the judgment to include prejudgment interest, costs, and post-judgment interest. Defendants argue that “Scottsdale is not entitled to use California Civil Code § 3289 because Scottsdale has never alleged, much less proved, that Defendants breached any contract.” Contrary to Defendants’ position, California Civil Code § 3289 applies for purposes of determining the prejudgment interest rate because Scottsdale’s claim for reimbursement of settlement proceeds is considered a quasi-contractual claim. Further, a quasi- contractual claim is considered a contract within the meaning of section 3287(b). George v. Double–D Foods, Inc., 155 Cal.App.3d 36, 47 (1984). Defendants also argue that Scottsdale is not entitled to prejudgment interest because Scottsdale’s damages are uncertain and Defendants had no way of knowing what amount was owed in order to defend the case through trial. However, Scottsdale never sought reimbursement of defense costs in this matter, only reimbursement of the Settlement Payment, which Defendants were clearly aware of as they demanded that Scottsdale settle the Underlying Action and signed the settlement agreement. Scottsdale’s damages were certain and vested on March Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 6 of 14 Page ID #:5907 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28, 2017 when Scottsdale advanced $600,000.00 (“Settlement Payment”) on Defendants’ behalf to settle the action styled Helinet Aviation Services, LLC v. Ronald Magocsi, et al., (“Underlying Action”). Defendants also claim that Scottsdale waived the right to seek pre-judgment interest because “Scottsdale affirmatively sought the right to seek reimbursement under the allocation provision starting on February 15, 2017, and only as to $300,000 of the settlement.” However, the Court determined as a matter of law that Scottsdale did not relinquish its right to seek reimbursement or lead Defendants to believe Scottsdale would pay the settlement without seeking reimbursement. Finally, Defendants do not dispute that Scottsdale is entitled to its costs as a matter of law in the amount of $3,611.19, or that Scottsdale is entitled to post- judgment interest on the Settlement Payment, prejudgment interest, and costs at the rate of 2.67% compounded annually. Accordingly, Scottsdale respectfully requests that the judgment in this case be amended: (1) to include pre-judgment interest on the Settlement Payment in the amount of $100,109.61; (2) to include costs awarded to Scottsdale in the amount of $3,611.19; and (3) to reflect that post-judgment interest shall accrue on the total amount of the judgment against Defendants (inclusive of prejudgment interest and costs) at the legal rate of interest of 2.67% allowed under 28 U.S.C. § 1961. II. LEGAL ARGUMENT A. Defendants’ Opposition Amounts to a Motion for Reconsideration of the Summary Judgment Ruling Defendants’ Opposition to Scottsdale’s Motion amounts to a motion for reconsideration of this Court’s order granting Scottsdale’s motion for summary judgment as demonstrated by the arguments advanced by Defendants. For example, Defendants argue that “[u]nder the Policy and evidence presented to the Court it was legally impossible to grant judgment to Scottsdale . . . .” and Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 7 of 14 Page ID #:5908 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Scottsdale was not entitled to full reimbursement under Blue Ridge because the settlement was for potentially covered claims under the insuring clauses of the Policy.” Defendants’ Opp., 1:6-7, 1:28-2:2. Defendants’ arguments are improper and should be disregarded because this Court has already found as a matter of law that Scottsdale is entitled to reimbursement of the Settlement Payment and interest. Dkt 160. Further, a motion for reconsideration requires a separately noticed motion, which Defendants chose not to file. Moreover, even if Defendants filed a motion for reconsideration, there is no basis to grant such a motion because there is no material difference in fact or law or a manifest showing of a failure to consider material facts presented to the Court. Pursuant to Local Rule 7-18: A motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion. Defendants fail to cite any material difference in fact or law or a manifest showing of a failure to consider material facts presented to the Court. Instead, Defendants simply attempt to reargue Scottsdale’s motion for summary judgment, which is improper as no motion for reconsideration shall in any manner repeat any Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 8 of 14 Page ID #:5909 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 oral or written argument made in support of or in opposition to the original motion. L.R. 7-18; Dairy Employees Union Local No. 17 Christian Labor Ass'n of the U.S. Pension Trust v. Ferreira Dairy, 2015 WL 1952308, * 2 (C.D. Cal. 2015) (“Because Defendant's Motion fails to comply with Local Rule 7–18, the Court DENIES Defendant's Motion for Reconsideration.”); Bhatnagar v. Surrendra Overseas Ltd. 52 F.3d 1220, 1231 (3rd Cir. 1995) (“Whatever other circumstances may justify reconsideration, mere presentation of arguments or evidence seriatim does not.”); Geneva College v. Sebelius, 941 F.Supp.2d 672, 680 (W.D. PA 2013) (disagreement with court's reasoning is an inappropriate basis for motion to reconsider). In fact, Defendants admit they have no new evidence and reference the same evidence presented during Scottsdale’s motion for summary judgment, which include the Policy, Scottsdale’s responses to interrogatories, set one, etc. Defendants’ Opp., 10-12. The failure to comply with Local Rule 7-18 is fatal to Defendants’ arguments regarding reconsideration. Dairy Employees Union Local No. 17 Christian Labor Ass'n of the U.S. Pension Trust v. Ferreira Dairy, supra, 2015 WL 1952308, * 2 (“But Plaintiffs' ‘inadvertence’ or the Court's ‘misunderstanding’ are not valid grounds for reconsideration permitted by Local Rule 7–18.”). Accordingly, Defendants’ attempt to reargue the merits of Scottsdale’s motion for summary judgment should be disregarded.1 B. California Civil Code § 3289 Applies Because a Claim for Reimbursement of Settlement Proceeds is Considered a Quasi- Contractual Claim Defendants argue that “Scottsdale is not entitled to use California Civil Code § 3289 because Scottsdale has never alleged, much less proved, that Defendants 1 In the event this Court considers Defendants’ arguments regarding the merits of Scottsdale’s motion for summary judgment, Scottsdale requests additional briefing on the issue. Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 9 of 14 Page ID #:5910 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 breached any contract.” Defendants’ Opp., 14:10-12. Defendants are incorrect and California Civil Code § 3289 applies for purposes of determining the prejudgment interest rate because a claim for reimbursement of settlement proceeds is considered a quasi-contractual claim. See Blue Ridge Ins. Co., 25 Cal.4th at 493; Buss v. Superior Court, 16 Cal.4th 35, 51 (1997). Further, a quasi- contractual claim is considered a contract within the meaning of section 3287(b). George v. Double–D Foods, Inc., 155 Cal.App.3d 36, 47 (1984). Thus, Scottsdale can rely on California Civil Code § 3289 for purposes of determining the prejudgment interest rate. Here, there is no provision in the contract specifying the interest rate per annum in the event Scottsdale were to reserve rights and seek reimbursement from Defendants. Accordingly, the interest rate for purposes of calculating prejudgment interest is 10%. C. Scottsdale’s Damages are Certain Defendants argue that Scottsdale is not entitled to prejudgment interest starting on March 28, 2017 because Scottsdale’s damages are uncertain and “[p]rejudgment interest is not permitted where the amount of damage, as opposed to the determination of liability, depends upon a judicial determination based upon conflicting evidence.” Defendants’ Opp., 16:3-10. In addition, Defendants argue that “[i]f this matter had been permitted to go to trial . . . there would certainly have been conflicting evidence as to how much it would have cost to take the Helinet Action to trial and a possible appeal and the probability and amount of any covered judgment, which would be Scottsdale’s relative legal and financial exposures, versus the probability and amount of any uncovered judgment, which would be Defendants’ relative legal and financial exposures.” Defendants’ Opp., 16:17-23. However, Scottsdale’s damages are certain because there can be no dispute concerning the computation of the Settlement Payment advanced on Defendants’ behalf, i.e. the damages sought by Scottsdale in this action. Defendants agree that the certainty requirement under California Civil Code Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 10 of 14 Page ID #:5911 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 § 3287(a) has been reduced to two tests: (1) whether the debtor knows the amount owed or (2) whether the debtor would be able to compute the damages. Hartford Accident & Indemnity Co. v. Sequoia Ins. Co., 211 Cal.App.3d 1285, 1307 (1989). Defendants misleadingly argue that “Defendants had no way of knowing what amount was owed, if any, to Scottsdale” and that “Scottsdale has not offered evidence as to how much it contends it would have cost to take the Helinet Action to trial . . . .” Defendants’ Opp., 16:24-26. Contrary to Defendants’ representations, Scottsdale did not seek reimbursement of defense costs in this matter, only reimbursement of the Settlement Payment, which Defendants were clearly aware of as they demanded that Scottsdale settle the Underlying Action. Also, Defendants signed the settlement agreement reflecting the amount of the settlement. Defendants do not dispute (because there can be no dispute) that on March 28, 2017 Scottsdale advanced $600,000.00 on Defendants’ behalf subject to reimbursement in order to settle the Underlying Action with Helinet. Soskin Dec., ¶ 3; Exhibit A. Therefore, Scottsdale’s damages were certain and amounted to $600,000.00. Moreover, because this Court determined that Scottsdale was entitled to reimbursement of the Settlement Payment, Scottsdale is also entitled to prejudgment interest from the date Scottsdale settled the Underlying Action. See Evanston Ins. Co. v. OEA, Inc. 566 F.3d 915, 922 (9th Cir. 2009) (finding that an insurer entitled to reimbursement of settlement costs is also entitled to prejudgment interest from the time the funds were expended pursuant to section 3287(a)); Hartford Accident & Indem. Co. v. Sequoia Ins. Co., 211 Cal.App.3d 1285, 1291, 1307 (1989) (awarding prejudgment interest from the date plaintiff paid to settle a claim in full even though the defendants' legal liability obligating them to contribute to the settlement was not established until the entry of summary judgment); Overholser v. Glynn, 267 Cal.App.2d 800, 809–10 (1968) (holding that the plaintiff-guarantor's right to recover the money ‘vested’ when he paid to satisfy Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 11 of 14 Page ID #:5912 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his coguarantors' indebtedness). Accordingly, Scottsdale is entitled to prejudgment interest on the Settlement Payment from the date of payment on March 28, 2017 until the entry of judgment on November 27, 2018. D. Scottsdale Is Not Estopped from Seeking Prejudgment Interest Defendants contend that “Scottsdale has waived the right to seek pre- judgment interest because Scottsdale affirmatively sought the right to seek reimbursement under the allocation provision starting on February 15, 2017, and only as to $300,000 of the settlement.” However, Scottsdale’s coverage position and its defense and indemnification of Defendants pursuant to a reservation of rights was repeatedly expressed to Defendants, and at no point did Scottsdale intentionally relinquish its right to reimbursement or lead Defendants to believe Scottsdale would forego its right to seek reimbursement from the Defendants. In California, the general rule is that “waiver requires the insurer to intentionally relinquish its right to deny coverage and that a denial of coverage on one ground does not, absent clear and convincing evidence to suggest otherwise, impliedly waive grounds not stated in the denial. Waiver depends solely on the intent of the waiving party, and is not established merely by evidence the insurer failed to specify the exclusion in a letter reserving rights.” Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 32, 900 (1995) (citing State Farm Fire & Casualty Co. v. Jioras 24 Cal.App.4th 1619, 1628 (1994)). Here, Scottsdale repeatedly reminded the Defendants of its reservation of rights and specifically advised the Defendants on March 21, 2017 that Scottsdale would be seeking reimbursement of the Settlement Payment. In fact, the Court determined as a matter of law that Scottsdale did not relinquish its right to seek reimbursement or lead Defendants to believe Scottsdale would pay the settlement without seeking reimbursement. Dkt 160. Accordingly, Scottsdale is not estopped from seeking prejudgment interest on the Settlement Payment. Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 12 of 14 Page ID #:5913 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Defendants Do Not Dispute that Scottsdale is Entitled to Its Costs as a Matter of Law Defendants do not dispute that Scottsdale is the prevailing party and therefore entitled to recover its costs as a matter of law. Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006) (“Under Federal Rule of Civil Procedure 54(d), there is a presumption that the prevailing party will be awarded its taxable costs.”). Pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure, “[u]nless a federal statute, these rules, or a court order provides otherwise, costs— other than attorney's fees—should be allowed to the prevailing party.” On December 11, 2018, Scottsdale filed an application to tax costs seeking an award of $3,611.19 in total costs. Dkt 163. Defendants did not file an objection to Scottsdale’s application to tax costs, nor did they dispute any of the costs in their Opposition to Scottsdale’s Motion. Accordingly, Scottsdale is entitled to have the judgment amended to reflect an award of costs in the amount of $3,611.19 in total costs. F. Defendants Do Not Dispute that Scottsdale is Entitled to Post- Judgment Interest on the Settlement Payment, the Total Prejudgment Interest, and Costs at the Rate of 2.67%, Compounded Annually Defendants do not dispute that Scottsdale is entitled to post-judgment interest at the rate of 2.67%, compounded annually. In diversity cases “[p]ost- judgment interest is determined by federal law.” Northrop Corp. v. Triad Int'l Mktg., S.A., 842 F.2d 1154, 1155 (9th Cir. 1988). Post-judgment interest is computed daily and compounded annually. 28 U.S.C. § 1961(b). Moreover, it is well established that post judgment interest also applies to the prejudgment interest component of a district court’s monetary judgment. See, Air Separation, Inc. v. Underwriters at Lloyd's of London, 45 F.3d 288, 291 (9th Cir. 1995). Scottsdale is entitled to its costs because it prevailed on summary judgment. Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 13 of 14 Page ID #:5914 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Scottsdale is also entitled to pre-judgment interest on the Settlement Payment because the damages it incurred are certain and not subject to dispute. Further, Scottsdale is also entitled to post-judgment interest on the entire amount of the judgment, which includes the Settlement Payment, prejudgment interest, and costs. For the calendar week preceding this Court’s November 27, 2018 entry of judgment, the applicable interest rate was 2.67%.2 Accordingly, Scottsdale requests that the Court calculate post-judgment interest on the total money judgment at a rate of 2.67% compounded annually. III. CONCLUSION For the foregoing reasons, Scottsdale respectfully requests that the judgment in this case be amended: (1) to include pre-judgment interest on the Settlement Payment in the amount of $100,109.61; (2) to include costs awarded to Scottsdale in the amount of $3,611.19; and (3) to reflect that post-judgment interest shall accrue on the total amount of the judgment against Defendants (inclusive of prejudgment interest and costs) at the legal rate of interest of 2.67% allowed under 28 U.S.C. § 1961, together with such other and further relief as the Court deems necessary and appropriate. Dated: January 14, 2019 COZEN O’CONNOR By: /s/Valerie D. Rojas Valerie D. Rojas Michael V. Ruocco Attorneys for Plaintiff/Counter-Defendant SCOTTSDALE INSURANCE COMPANY LEGAL\39611891\1 00019.0023.000/405077.000 2 This percentage represents the federal statutory rate of the weekly average one-year maturity Treasury yield for the calendar week preceding November 27, 2018. Case 2:17-cv-03190-VAP-E Document 170 Filed 01/14/19 Page 14 of 14 Page ID #:5915