Ostrander v. Dioces of San Diego Education & Welfare Corporation

[9] 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA [12] 13 SARAH OSTRANDER, an individual; Case No.: 3:21-cv-00175-W-LL 14 Plaintiff, ORDER: (1) GRANTING REQUEST 15 v. FOR JUDICIAL NOTICE [DOC. 132]; (2) DENYING MOTION TO 16 ST. COLUMBA SCHOOL, et al.; STRIKE [DOC. 12]; AND 17 Defendants. (3) DENYING MOTION TO DISMISS [DOC. 13] [18] 19 Defendant Pastor of Saint Columba Catholic Parish in San Diego, California (“St. 20 Columba”) moves to dismiss and strike certain allegations from the First Amended 21 Complaint (“FAC”) under Federal Rule of Civil Procedure 12(b)(6). Plaintiff Sarah 22 Ostrander opposes. 23 The Court decides the matter on the papers submitted and without oral argument. 24 Civ. L.R. 7.1(d.1). For the reasons that follow, the Court GRANTS Defendant’s request 25 for judicial notice [Doc. 13-2], DENIES Defendant’s motion to strike [Doc. 12] and 26 DENIES Defendant’s motion to dismiss [Doc. 13]. [28] 1 I. BACKGROUND 2 Plaintiff Sarah Ostrander graduated from Aurora University in 2010 with a 3 bachelor’s degree in Elementary Education and a minor in Special Education. (First 4 Amended Comp. (“FAC”) [Doc. 11] ¶ 8.) After graduating, she taught for several years 5 throughout the mid-Atlantic. (Id. ¶¶ 9–12.) She held a teaching certificate in the various 6 states where she worked. (Id. ¶ 15.) 7 In 2018, Ostrander moved to San Diego after her husband, who is in the Navy, was 8 stationed here. (FAC ¶¶ 10, 14.) Ostrander obtained a provisional teaching certificate 9 and was hired by the San Diego Catholic school, St. Mary’s, as a second-grade teacher 10 for the 2018-2019 school year. (Id. ¶¶ 15, 16, 17.) The following year, she was hired by 11 another San Diego Catholic school, Defendant St. Columba — this time as a preschool 12 teacher for the 2019-2020 school year. (Id. ¶ 24.) 13 Ostrander’s contract with St. Columba provided her with an annual salary of 14 $40,000. (FAC ¶ 31.) She alleges Defendant The Roman Catholic Biship [sic] of San 15 Diego (the “Diocese”) provided the employment contract, which was “nearly identical to 16 the contract she signed for St. Mary’s.” (Id. ¶ 25.) Under its terms, Ostrander was 17 required to submit her “fingerprints to the Department of Justice for a background check 18 through Live Scan.” (Id. ¶ 26.) However, this requirement was waived because she had 19 already submitted her fingerprints through Live Scan to the Diocese when she was hired 20 by St. Mary’s. (Id. ¶¶ 18, 26.) 21 In May of that same year, Ostrander became pregnant with a due date of February 22 6, 2020. (FAC ¶ 32.) On December 12, 2019, Ostrander was admitted to the hospital for 23 two days with pre-term labor. (Id. ¶¶ 39, 40.) She contends her “pre-term labor 24 constituted a serious health condition because it increased the risk that she would suffer 25 pregnancy complications.” (Id. ¶ 40.) 26 The day after Ostrander was admitted to the hospital, “Defendants” decided to 27 cancel Ostrander’s contract and change her from a salaried employee to an hourly one. 28 (FAC ¶ 41.) “When the Principal of St. Columba, John Amann informed Ms. Ostrander 1 about the decision, he told her that order to change her employment status was coming 2 ‘straight from the Diocese.’” (Id. ¶ 42.) The change meant Ostrander’s annual income 3 would drop significantly because she would no longer be paid when school was out for 4 vacations or holidays. (Id. ¶ 44.) 5 On or about December 16, 2019, Ms. Ostrander went to St. Columba’s 6 administrator, Marlo Antonio, to discuss her options for taking leave for the birth of her 7 child. (FAC ¶ 47.) Antonio was not sure whether Ostrander qualified for FMLA leave 8 because she had not been at St. Columba for more than twelve months, so Antonio 9 “escalated the question to Kristie Krische, who worked for the Office for Human 10 Resources at the Diocese.” (Id. ¶¶ 48, 49.) Krische informed Antonio that although 11 Ostrander “had not been employed with St. Columba for more than twelve months, her 12 ‘Diocesian Hire Date’ made her employment more than twelve months, so Ms. Ostrander 13 qualified for FMLA.” (Id. ¶ 50.) Antonio forwarded the response she got from Ms. 14 Krische regarding protected leave, stating “[h]ere is the guideline from the Diocese. If 15 you have any questions, please feel free to contact Kristie Krische.” (Id. ¶ 51.) 16 On January 14, 2020, Antonio e-mailed Ostrander about filling out her Leave 17 Request Form for FMLA leave. (FAC ¶ 52.) She instructed Ostrander to only fill out 18 section I on page one and stated that “Section III is for Diocese HR.” (Id.) 19 The next day, Ostrander submitted her request for leave for the birth of her child 20 from February 6 to April 30, 2020. (FAC ¶¶ 61, 62.) Later that day, Ostrander was 21 terminated. (Id. ¶ 64.) “Defendants” told Ostrander that her coursework in college and 22 her Virginia teaching certificate would not transfer to the State of California for 23 Community Care Licensing.” (Id. ¶ 65.) However, on March 2, Ostrander received her 24 Multiple Subject Teaching Credential from the California Commission on Teacher 25 Credentialing. (Id. ¶ 66.) 26 On October 2, 2020, Ostrander filed a lawsuit in the San Diego Superior Court 27 against the Diocese of San Diego Education & Welfare Corporation and St. Columba 28 alleging twelve causes of action. (See Compl. [Doc. 1-2].) On January 6, 2021, 1 Ostrander dismissed the former without prejudice. (See Notice of Removal [Doc. 1], Ex. 2 1 at 3.) On January 29, 2021, St. Columba removed the case to federal court. (See 3 Removal Notice [Doc. 1].) St. Columba then moved to dismiss the Complaint. 4 On July 19, 2021, this Court granted St. Columba’s motion without leave to 5 amend as to certain causes of action, and with leave to amend as to causes of action for 6 violation of the California Family Rights Act (“CFRA”) and the Family Medical Leave 7 Act (“FMLA”). (Dismissal Order [Doc. 10] 14:1–6.) The order also denied St. 8 Columba’s motion to dismiss the cause of action for wrongful termination in violation of 9 public policy. (Id. 14:3–6.1) 10 On August 9, 2021, Ostrander filed the FAC alleging six causes of action for: 11 (1) Sex Discrimination in Violation of Title VII; (2) Interference with CFRA Leave; (3) 12 Retaliation in Violation of CFRA; (4) Interference with FMLA Leave; (5) Retaliation in 13 violation of FMLA; and (6) Wrongful Termination in Violation of Public Policy. (See 14 FAC.) The FAC also adds the Roman Catholic Biship [sic] of San Diego (the “Diocese”) 15 as a defendant and a request for punitive damages. (Id. ¶ 3, p. 19:10.) 16 Defendant St. Columba now moves to strike from the FAC a request for punitive 17 damages, the Diocese as a defendant, and factual allegations regarding an email sent after 18 Ostrander was fired. (See MTS P&A [Doc. 12-1].) In addition, St. Columba moves to 19 dismiss the first through fifth causes of action. (See MTD P&A [Doc. 13-1].) Ostrander 20 opposes both motions. (See Opp’n to MTS [Doc. 16]; Opp’n to MTD [Doc. 15].) [21] 22 II. REQUEST FOR JUDICIAL NOTICE 23 St. Columba requests judicial notice of (1) its request for judicial notice filed in 24 support of the motion to dismiss the Complaint (which this Court granted) and (2) the [26] 27 1 St. Columba also argued the entire Complaint (which included a Title VII cause of action) was barred by the ministerial exemption. (P&A [Doc. 4-1] 13:1–2.) The Dismissal Order disagreed and thus 28 denied the motion as to the Title VII cause of action. (Dismissal Order 11:8–13:4.) 1 Dismissal Order. (RJN [Doc. 13-2] 1:5–10.) Ostrander does not dispute that judicial 2 notice of these documents is appropriate. Accordingly, the Court will grant the request. [3] 4 III. MOTION TO STRIKE – FED. R. CIV. P. 12(f) 5 A. Legal Standard 6 Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a 7 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 8 matter.” Id. “[T]he function of a 12(f) motion to strike is to avoid the expenditure of 9 time and money that must arise from litigating spurious issues by dispensing with those 10 issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 11 1983). However, 12(f) motions are “generally regarded with disfavor because of the 12 limited importance of pleading in federal practice, and because they are often used as a 13 delaying tactic.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. 14 Cal. 2003 ). Unless it would prejudice the opposing party, courts freely grant leave to 15 amend stricken pleadings. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 16 1979); see also Fed. R. Civ. P. 15(a)(2). [17] 18 B. Discussion 19 St. Columba seeks to strike allegations from the FAC related to three subjects. The 20 first is allegations related to the Diocese. St. Columba argues the allegations should be 21 struck for two reasons. First it argues Ostrander violated Federal Rule of Civil Procedure 22 15(a)(2) by adding a new defendant without first obtaining either a court order or St. 23 Columba’s consent. (MTS P&A 3:3–4:13.) The Court disagrees. 24 In granting St. Columba’s original motion to dismiss, the Dismissal Order allowed 25 Ostrander to file the FAC. (Dismissal Order 14:3–6.) St. Columba argues, however, that 26 the order only allowed her to amend the FMLA and CFRA causes of action, and not to 27 add a defendant. (MTS P&A 3:5–4:1.) But the Dismissal Order did not prohibit adding a [28] 1 defendant nor did it limit amendments to only factual allegations related to those causes 2 of action. Additionally, the order dismissed the FMLA and CFRA causes of action 3 because the Complaint did not allege sufficient facts to show a joint employer. 4 (Dismissal Order 8:4–11.) In filing the FAC, Ostrander not only adds the Diocese as a 5 defendant, but added factual allegations purporting to show it was her joint employer. 6 (See e.g. FAC ¶¶ 2, 3, 17–27.) Accordingly, St. Columba’s argument is unavailing. 7 St. Columba next argues that it will suffer prejudice if Ostrander is allowed to add 8 the Diocese because the Diocese “was not OSTRANDER’s employer and there is no 9 ground for suing it as a joint employer….” (MTS P&A 4:2–7.) As discussed below, the 10 FAC’s factual allegations are now sufficient to suggest St. Columba and the Diocese 11 were her joint employer. Accordingly, this argument lacks merit. 12 St. Columba next seeks to strike allegations related to Ostrander’s request for 13 punitive damages. (MTS P&A 4:14–27.) St. Columba contends that because she 14 voluntarily dismissed the punitive damage claim from the original Complaint, her request 15 for punitive damages in the FAC is “confusing and prejudicial.” (Id.) 16 But when Ostrander dismissed the claim without prejudice, she explicitly reserved 17 her right to assert the claim. (See Jt. Mot. to Dismiss [Doc. 3].) Additionally, the FAC 18 now includes new factual allegations that—given St. Columba is not arguing the request 19 is insufficiently pled—presumably support the punitive damage request. For these 20 reasons, this argument is not persuasive. 21 Finally, St. Columba also seeks to strike allegations related to an email St. 22 Columba’s principle sent to families of students in which he stated that “[p]er guidance 23 from the Diocese of San Diego, we are being asked to no longer provide pay to our 24 Preschool teachers effective April 3rd.” (MTS P&A 5:3–12, citing FAC ¶¶ 70, 71.) St. 25 Columba argues the allegation regarding the email is impertinent and unrelated to the 26 issues in the case. (Id. 6:6–8.) The Court disagrees. 27 At issue is whether the Diocese and St. Columba were joint employers. Relevant 28 to this determination is whether the Diocese “(1) had the power to hire and fire 1 employees, (2) supervised and controlled employee work schedules or conditions of 2 payment, (3) determined the rate and method of payment, and (4) maintained 3 employment records.” Moreau v. Air France, 356 F.3d 942 , 946–53 (9th Cir. 2004). 4 Because the email suggests the Diocese was involved in deciding to stop paying St. 5 Columba’s teachers, the allegation is not impertinent or immaterial. [6] 7 IV. MOTION TO DISMISS – FED. R. CIV. P. 12(b)(6) 8 A. Legal Standard 9 The Court must dismiss a cause of action for failure to state a claim upon which 10 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 11 tests the legal sufficiency of the complaint. Parks Sch. of Bus., Inc. v. Symington, 51 12 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either 13 for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 14 Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the 15 motion, a court must “accept all material allegations of fact as true and construe the 16 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., [17] 487 F.3d 1246, 1249 (9th Cir. 2007). 18 A complaint must contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has 20 interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to 21 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554 , 555 22 (2007). The allegations in the complaint must “contain sufficient factual matter, accepted 23 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 24 U.S. 662 , 678 (2009) (quoting Twombly, 550 U.S. at 570 ). 25 Well-pled allegations in the complaint are assumed true, but a court is not required 26 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 27 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 28 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1 B. Discussion 2 1. Title VII Cause of Action 3 To establish a prima facie case of gender discrimination, a plaintiff-employee must 4 show that he or she: (1) is a member of a protected class; (2) was subjected to an adverse 5 employment decision; (3) was qualified for the position; and (4) similarly situated 6 nonprotected employees were treated more favorably, “or other circumstances 7 surrounding the adverse employment action give rise to an inference of discrimination.” 8 Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). St. Columba 9 contends Ostrander’s Title VII cause of action fails because she has not alleged facts 10 showing she was qualified (the third element) or that similarly situated individuals were 11 treated more favorably (the fourth element). (MTD P&A 7:3–20.) The Court disagrees. 12 The FAC sufficiently alleges Ostrander was qualified. Ostrander alleges she was a 13 credentialed teacher in several states, with a degree in elementary education and more 14 than eight years of experience. (FAC ¶¶ 8, 9.) When she was terminated, Ostrander had a 15 provisional teaching credential and was waiting for her California teaching credential, 16 which she received a little more than a month after St. Columba terminated her. (Id. ¶¶ 17 15, 66.) Also relevant is Ostrander’s allegation that as a Catholic school, St. Columba’s 18 teachers were not required to have a California teaching credential. (Id. ¶ 28.) Because 19 at this stage in the litigation the Court must assume the truth of these allegations, the 20 Court finds the FAC sufficiently pleads Ostrander was qualified. 21 The fourth element is established if “other circumstances surrounding the adverse 22 employment action give rise to an inference of discrimination.” Peterson, 358 F.3d at 23 603. Ostrander alleges that on December 12, 2019, she was admitted to the hospital for 24 two days with pre-term labor. (FAC ¶¶ 39, 40.) The day after Ostrander was admitted to 25 the hospital, St. Columba canceled her contract and changed her from a salaried 26 employee to an hourly one. (Id. ¶ 41.) Ostrander also alleges that the day she turned in 27 her leave request for the birth of her child, she was terminated. (Id. ¶¶ 61, 62, ¶ 64.) At 28 this stage in the litigation, these allegations surrounding the adverse employment actions 1 give rise to an inference of discrimination. They also suffice to suggest that she suffered 2 discrimination because of her gender. 3 For these reasons, the FAC sufficiently alleges a Title VII cause of action. [4] 5 2. FMLA and CFRA Causes of Action 6 Ostrander alleges St. Columba: (1) interfered with her right to take CFRA and 7 FMLA leave, and (2) retaliated against her for exercising her right to take CFRA and 8 FMLA leave. (FAC ¶¶ 99–118.) In evaluating interference and retaliation claims under 9 CFRA and FMLA, plaintiffs must establish they are eligible for such leave. See 10 Choochagi v. Barracuda Networks, Inc., 60 Cal. App. 5th 444 , 454-57 (2020). To 11 establish eligibility under CFRA and FMLA, Ostrander must show that at the time she 12 requested leave: (1) she was employed by St. Columba; (2) St. Columba employed 50 or 13 more employees within 75 miles of her workplace; (3) she had more than 12 months of 14 service and at least 1,250 hours of service with St. Columba during the previous 1215 month period; and (4) the reason for her requested leave was qualified under the statute. 16 Gov’t Code § 12945.2(a); 29 U.S.C.A. § 2611 (2)(A), § 2612(a)(1).2 Courts routinely 17 analyze CFRA and FMLA claims jointly using federal cases since CFRA and FMLA 18 “contain nearly identical provisions regarding family or medical leave.” Rogers v. Cty. 19 of Los Angeles, 198 Cal. App. 4th 480, 487 (2011). [20] 21 a) Ostrander Has Pled Sufficient Facts to Establish the Diocese Was 22 Her Joint Employer. 23 St. Columba argues Ostrander was not eligible for CFRA or FMLA leave because 24 she had not worked for their school for the requisite 12 months. (P&A MTD 9:21–23.) 25 Ostrander responds that she met the requisite 12-month minimum because the Diocese [27] 28 2 The parties do not disagree on the first and second elements. 1 was her joint employer with both St. Columba and St. Mary’s, the school with which she 2 was employed immediately preceding her time with St. Columba. (Opp’n to MTD 3 10:14–15.) 4 To demonstrate joint employment, a plaintiff must plead facts demonstrating the 5 alleged joint employer: “(1) had the power to hire and fire employees, (2) supervised and 6 controlled employee work schedules or conditions of payment, (3) determined the rate 7 and method of payment, and (4) maintained employment records.” Moreau, 356 F.3d at 8 946–53. When seeking to establish joint employment, the plaintiff “must at least allege 9 some facts in support of this legal conclusion.” Lesnik v. Eisenmann SE, 374 F. Supp. 3d 10 923, 942 (N.D. Cal. 2019). 11 The FAC alleges the Diocese was responsible for approving a potential employee’s 12 Live Scan report, such as Ostrander, and therefore had the power to deny or prevent St. 13 Mary’s and St. Columba from hiring. (FAC ¶¶ 27, 28.) The allegations also indicate the 14 Diocese supervised and was involved in controlling the employee’s work schedules, rate 15 of pay and conditions of payment. (Id. ¶¶ 49–57, 69.) This allegation is supported by 16 Ostrander’s allegation that the Diocese (1) was responsible for approving her leave 17 request, (2) instructed St. Columba to change her status from salary to hourly and 18 (3) essentially directed St. Columba to stop paying preschool teachers and close down 19 during the COVID pandemic. (Id. ¶¶ 42, 45, 70–72.) Finally, the FAC alleges the 20 Diocese maintained employment records, such as the Live Scan reports, for the 21 employees working at the parishes and schools it oversees. (Id. ¶¶ 18-21, 26.) 22 At this stage in the litigation, these allegations are sufficient to support the theory 23 that the Diocese and St. Columba were Ostrander’s joint employer.3 [26] 3 St. Columba also argues Ostrander fails to state an FMLA claim based on equitable estoppel. (MTD 27 P&A 15:1–16:26.) Ostrander’s equitable estoppel argument is an alternative theory for pleading an FMLA violation. Because the Court finds the FAC adequately alleges joint employment, the Court need 28 not the consider her equitable estoppel theory. 1 b) Ostrander Has Pled Sufficient Facts to Support Eligibility Under CFRA. 2 “CFRA entitles eligible employees to take up to 12 weeks of unpaid medical leave 3 during a 12-month period for certain personal or family medical conditions, including 4 care for their children, parents, or spouses or to recover from their own serious health 5 condition.” Neisendorf v. Levi Strauss & Co., 143 Cal. App. 4th 509, 516 (2006). 6 Qualified leave taken on account of an employee’s own serious health conditions does 7 not include “pregnancy, childbirth, or related medical conditions,” but the statute does 8 allow for “[l]eave for reason of the birth of a child of the employee.” Gov’t Code § 9 12945.2(a), § 12945.2(4)(A). 10 St. Columba argues pregnancy disability is not covered by CFRA and therefore 11 Ostrander is not eligible for CFRA leave. (MTD P&A 10:1–27.) In support of this 12 argument, St. Columba points to her Leave Request Form, attached to the FAC. On the 13 form, Ostrander was required to respond to the following question, “I request a 14 Family/Medical Leave for the following reason (check one):” (FAC Ex. A.) In response, 15 Ostrander checked “Disabled by pregnancy or childbirth” and not “Bonding leave after 16 the birth of a child or bonding leave after the placement of a child for adoption of foster 17 care.” (Id.) In her opposition, Ostrander argues that because she is not an attorney and 18 was not given any guidance in filling out the form, she did not understand the legal 19 significance of her selection. (MTD Opp’n 12:19–26.) She also argues that because she 20 requested leave begin on her due date, it is reasonable to infer that “the true reason for the 21 leave was the childbirth itself,” not disability due to pregnancy. (Id. 12:26–13:2.) 22 Based on the parties’ argument, the issue is essentially whether Ostrander’s 23 response on the form bars her CFRA claim as a matter of law. Under the facts alleged in 24 the FAC, the Court is not convinced it does. To begin, as the moving party, St. Columba 25 bears the burden of persuasion and has cited no authority supporting such a proposition. 26 Additionally, Ostrander’s arguments are persuasive. She was a preschool teacher, not an 27 attorney. There are also no allegations indicating St. Columba ever explained eligibility 28 under the CFRA and FMLA. And although Ostrander checked “disabled by pregnancy,” 1 her leave request was to begin on her due date, indicating that she intended to take leave 2 after she delivered the child and was no longer pregnant. Moreover, the FAC specifically 3 alleges Ostrander met with St. Columba’s Location Administrator regarding her options 4 for taking leave “for the birth of her child” (FAC ¶ 46), which is a qualified reason for 5 CFRA leave. See Gov’t Code § 12945.2(a), § 12945.2(4)(A). Based on these 6 allegations, the Court finds the FAC sufficiently alleges Ostrander was qualified for 7 CFRA leave. 8 Finally, regulations governing the CFRA suggest that an employee’s notice for 9 leave should be liberally construed where the employee identifies a CFRA-qualifying 10 basis: 11 The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the [12] employee must state the reason the leave is needed, such as, for example, the 13 expected birth of a child or for medical treatment. The mere mention of ‘vacation,’ other paid time off, or resignation does not render the notice [14] insufficient, provided the underlying reason for the request is CFRA15 qualifying, and the employee communicates that reason to the employer. The employer should inquire further of the employee if necessary to [16] determine whether the employee is requesting CFRA leave and to obtain 17 necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information).” (Italics added.) [18] Thus, an employer bears a burden, under CFRA, to inquire further if an 19 employee presents the employer with a CFRA-qualifying reason for requesting leave. [20] 21 Moore v. Regents of University of California, 248 Cal.App.4th 216, 249 (2016) (citing 22 California Code of Regulations, title 2, section 11091, subdivision (a)(1)). Because 23 Ostrander mentioned a qualifying basis for CFRA leave when she met with St. 24 Columba’s Location Administrator regarding her options for taking leave, the Court finds 25 the FAC sufficiently pleads a CFRA claim. 26 // 27 // [28] 1 CONCLUSION & ORDER 2 For the foregoing reasons, the Court GRANTS Defendant’s request for judicial 3 ||notice [Doc. 13-2], DENIES the motion to strike [Doc. 12] and DENIES the motion to 4 || dismiss [Doc. 13]. 5 IT IS SO ORDERED. 6 Dated: February 10, 2022 [7] 8 Hon. Thomas J. Whelan 9 United States District Judge