Porter v. Yuba City Police Dept. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Quiana Lei Porter, No. 2:20-cv-01554-KJM-DB 12 Plaintiff, ORDER 13 V. 14 Yuba City Police Officers Escheman, Hansen, 15 Jensen, Jurado, et al. Defendants. 16 17 Plaintiff Quiana Porter brings this action under 42 U.S.C. § 1983 against several Yuba 18 | City Police Officers. Named defendants Officers Escheman, Hansen, Jensen and Jurado move for 19 | summary judgment on statute of limitations grounds, or in the alternative, summary adjudication 20 | on plaintiff's claims. Porter moves to strike the motion for summary judgment for not seeking 21 | leave of court to file a successive motion for summary judgment. For the reasons below, the 22 | court grants defendants’ motion and denies plaintiffs motion. 23 | I. BACKGROUND 24 On July 31, 2018, Yuba City police officers arrested Porter. Defs.’ Resp. to Pl.’s 25 | Statement of Disputed Facts (SDF) 1, 10, ECF No. 74-1; Pl.’s Resp. to Defs.’ Statement of 26 | Undisputed Fact (SUF) Jf 1, 6, ECF No. 63. Porter started recording the officers with her phone 27 | before being arrested. SUF § 4; SDF § 7. The video shows six officers. Defs.’ Video, ECF No. 1 57-4; Pl.’s Video, ECF No. 72 (collectively, Video).1 Throughout the video, Porter asks the 2 officers for their names and badge numbers. See generally Video; SDF ¶ 8. The named 3 defendants— Escheman, Hansen, Jensen and Jurado—gave their names in response. Video at 4 00:02–01:06. The video footage ends moments after an officer tells Porter she is under arrest, but 5 records about twenty more seconds of audio. Id. at 01:22–1:45. 6 On August 3, 2020, a little more than two years after her arrest, Porter filed a pro se 7 complaint against Yuba City Police Department and fifty Doe defendants. Compl., ECF No. 1. 8 The complaint did not identify any officers by name. Id. Porter then retained counsel and filed 9 an amended complaint, but again, did not name any individual officers. First Am. Compl. (FAC), 10 ECF No. 7. After the case had been pending for almost a year, Porter moved to amend the 11 complaint to correct “certain facts” and to name defendant officers whose names Porter obtained 12 after retaining counsel. Mot. Amend at 2, ECF No. 15.2 13 The court granted the motion, Prior Order (July 20, 2021), ECF No. 18, and Porter filed a 14 second amended complaint naming defendants Escheman, Hansen, Jensen and Jurado for the first 15 time. Second Am. Compl. (SAC), ECF No. 19. Defendants moved to dismiss the complaint, and 16 argued, among other things, that Porter’s claims are barred by the statute of limitations. Mot. 17 Dismiss at 4–5, ECF No. 20-1. The court denied the motion because the record at the time 18 suggested Porter was “ignorant of the officers’ names and sought leave to amend after retaining 19 counsel who was able to obtain some of the officers’ names.” Prior Order (Nov. 4, 2021) at 4, 20 ECF No. 28. Given Porter’s alleged ignorance, the court found the operative complaint related 21 back to Porter’s original filing and her claims were timely. Id. The parties then completed initial 22 discovery disclosures and Porter deposed Escheman, Hansen, Jensen and Jurado. SUF ¶ 15. 23 In January 2022, Porter moved to amend her second amended complaint, Second Mot. 24 Amend, ECF No. 33, and defendants moved for summary judgment on statute of limitation 25 grounds, Mot. Summ. J., ECF No. 35. The court granted Porter’s motion to amend and denied 1 Defendants and plaintiff lodged the video footage with the court in disc and USB format. 2 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 defendants’ motion for summary judgment. Prior Order (May 6, 2022), ECF No. 44. Although 2 the court found Porter knew the names of the defendants when she filed the initial complaint, the 3 court concluded the statute of limitations did not bar her claims because “she did not know each 4 officer’s role in her injuries.” Id. at 7. The court was persuaded by a sister district court’s 5 analysis in Kestler v. City of Santa Rosa, No. 15-01361, 2016 WL 3091674 (N.D. Cal. June 2, 6 2016), and after construing the record in Porter’s favor as required, the court found she added the 7 officers’ names in her second amended complaint “after she and her counsel ‘reviewed the 8 relevant evidence.’” Id. at 9 (citing Prior Order (July 20, 2021) at 1). 9 Porter then filed a third amended complaint, which remains the operative complaint. 10 Third Am. Compl. (TAC), ECF No. 46. In early August 2022, almost two years after filing the 11 initial complaint, Porter then moved to amend the complaint yet again to substitute two named 12 officers for two Doe defendants. Third Mot. Amend, ECF No. 49. Porter alleged she could not 13 have sought leave to amend before deposing the named defendants because she could not 14 determine exactly how or whether the two officers violated her rights. Id. at 5. The court held an 15 in-person hearing on the motion and planned to ask Porter’s counsel to explain what information 16 he had obtained in the deposition that he could not have obtained through the police reports 17 provided during initial discovery. Prior Order (Sept. 14, 2022) at 2, ECF No. 54. Counsel did not 18 appear. Mins. Mot. Hr’g, ECF No. 52. The court denied the motion after finding Porter had “not 19 shown that she diligently sought leave to amend her complaint.” Prior Order (Sept. 14, 2022) at 20 4. 21 Before the court denied plaintiff’s motion to file a fourth amended complaint, defendants 22 had filed a first motion for summary judgment. Mot. Summ. J. After the court denied the 23 motion, defendants deposed Porter. Deposition of Quiana Porter (Porter Dep.), Bittner Decl. Ex. 24 A, ECF No. 57-3. The following is an excerpt from Porter’s deposition transcript: 25 Q: In your declaration, you stated that when you filed your original 26 complaint, you were not aware of what role each of the defendant 27 officers played in your injuries. You said you have become aware, 28 since then, of the role that they played. How did you become aware? 1 A: [I] talked with my counsel. . . . I didn’t review the video for a very, 2 very long time, because of the trauma that had ensued to me. So as 3 time had passed, I became aware, because I started watching the 4 video, I started having conversations and talking about it again and – 5 and recollecting. 6 Q: So you watched the video? 7 A. Uh-huh. 8 Q. And you also had new memories? 9 A. Not new memories. Just recalling. 10 Id. 99:15–100:6. Following the deposition, the defendants again move for summary judgment on 11 statute of limitations grounds, or in the alternative, summary adjudication on Porter’s claims. 12 Second Mot. Summ. J. (Mot.), ECF No. 57-1. Porter opposes. Opp’n, ECF No. 60.3 Defendants 13 replied. Reply, ECF No. 74. 14 The parties agree Porter “clarified she became aware of the role that each of the defendant 15 officers played in her injuries by watching her cell phone video.” SUF ¶ 16. However, in support 16 of her opposition to the motion for summary judgment, Porter declares: 17 [D]uring my deposition . . . , the “old memory” that I testified that I 18 recalled, referred solely to the events leading up to the incident of 19 police misconduct, but not the facts of the misconduct itself or what 20 role that any of the officers played in the police misconduct. 21 Declaration of Quiana Porter (Porter Decl.) ¶ 19, ECF No. 61. Porter further declares she had “no 22 idea” what role each defendant played until she discussed the event with her counsel and son, 23 who witnessed the incident. Porter Decl. ¶ 20. 24 Porter moves to strike defendants’ motion for summary judgment for not obtaining leave 25 of court prior to filing their motion. Mot. Strike, ECF No. 58. Defendants oppose. Opp’n Mot. 26 Strike, ECF No. 59. Porter replied. Reply Mot. Strike, ECF No. 73. The court addresses the 27 motion to strike first. 3 The court accepts the plaintiff’s late filing, resolving ECF No. 71. See Fed. R. Civ. P. 6(b); Local Rule 144(c). 1 II. MOTION TO STRIKE 2 Porter moves to strike defendants’ motion for summary judgment and argues defendants 3 violated Federal Rule of Civil Procedure 56 by filing a successive motion for summary judgment 4 without leave of court. Mot. Strike at 3. In support, Porter cites an Initial Standing Order of a 5 Judge in the Central District of California. Id. (citing Bouyer v. 501-541 Glenoaks LLC, No. 21- 6 02731, 2021 U.S. Dist. LEXIS 145392 (C.D. Cal. Apr. 8, 2021)). Nothing in Rule 56, Fed. R. 7 Civ. P., this District’s local rules, see generally E.D. Cal. L.R., or this court’s standing order, see 8 generally Standing Order, ECF No. 11-1, prohibits successive motions for summary judgment 9 without leave of court. 10 “Federal Rule of Civil Procedure 56 does not limit the number of motions that may be 11 filed.” Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). The Ninth Circuit has 12 explicitly held “district courts have discretion to entertain successive motions for summary 13 judgment.” Id. “[A] successive motion for summary judgment is particularly appropriate on an 14 expanded factual record.” Id.; see also Powers v. Devereaux, 20 F. App’x 708, 709 (9th Cir. 15 2001) (unpublished) (“A court may consider successive summary judgment motions on the same 16 issue.”). 17 Here, defendants have new deposition testimony—i.e., new evidence—to support their 18 successive motion for summary judgment. They did not need leave of court to file the motion. 19 Further, defendants set the motion before the expiration of the deadline to hear all dispositive 20 motions. See Prior Order (Oct. 3, 2022), ECF No. 56 (continuing dispositive motions hearing 21 deadline to December 9, 2022); cf. Allianz Sigorta, S.A. v. Ameritech Indus., 2017 U.S. Dist. 22 LEXIS 117271, *14 (striking a party’ motion for summary judgment for not abiding by the 23 court’s pretrial scheduling order). 24 Accordingly, the court denies Porter’s motion to strike. 25 III. MOTION FOR SUMMARY JUDGMENT 26 A. Legal Standard 27 A court may grant summary judgment if there is “no genuine dispute as to any material 28 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 1 moving party bears the initial burden of showing the district court “there is an absence of 2 evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 3 (1986). The burden then shifts to the nonmoving party, which “must establish that there is a 4 genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 574, 585 (1986). In deciding a motion for summary judgment, the court draws all inferences and 6 views all evidence in the light most favorable to the nonmoving party. Id. at 587–88. 7 To prevail based on an affirmative defense—i.e., statute of limitations—at summary 8 judgment, defendants must prove the defense in question is “beyond controversy.” S. Cal. Gas 9 Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (citation omitted). Specifically, they 10 must prove “no reasonable jury could fail to find that the defense had been established.” Snell v. 11 Bell Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997). Conversely, a plaintiff “can 12 defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational 13 trier of fact to find in its favor.” S. Cal. Gas, 336 F.3d at 888. 14 B. Analysis 15 Defendants again argue Porter’s claims against the individual officers are untimely and 16 are barred by the statute of limitations. Mot. at 10. Porter was injured on July 31, 2018. SUF 17 ¶ 1. Porter filed her initial complaint on August 3, 2020. Compl. For § 1983 claims, federal 18 courts “apply the forum state’s statute of limitations for personal injury actions, along with the 19 forum state’s law regarding tolling,” so long as the law is not “inconsistent with federal law.” 20 Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (internal citations 21 and marks omitted). 22 1. The Original Complaint Was Timeley 23 The relevant statute of limitations for Porter’s claims in California is two years. See Cal. 24 Civ. Proc. Code § 335.1. Porter was arrested on July 31, 2018. SUF ¶ 1. She filed her original 25 complaint on August 3, 2020 three days after the expiration of the two-year statutory period, 26 which would have been July 31, 2020. See Prior Order (May 6, 2022) at 4. However, the statute 27 of limitations for Porter’s 1983 claims period was tolled by the emergency rules promulgated by 28 the Judicial Council of California in response to the COVID-19 pandemic. Id. at 4–5 (finding the 1 statute of limitations for Porter’s claims was tolled from April 6, 2020 to October 1, 2020). 2 Because the three days are covered by the emergency tolling of the limitation period, Porter’s 3 original complaint was timely. 4 2. Claims Against Defendants Do Not Relate Back 5 Although the original complaint was timely, Porter did not name any of the individual 6 defendants in her original or first amended complaint. See Compl.; FAC. Porter did not name the 7 defendants until she filed her second amended complaint in mid-2021, long after the extended 8 emergency statute of limitation period expired. See SAC. 9 Federal Rule of Civil Procedure 15 governs the resolution of whether Porter’s amended 10 complaint relates back to her original complaint. See Fed. R. Civ. P. 15; Prior Order (May 6, 11 2022) at 5. Under Rule15, an amendment relates back to a previous pleading if it would do so 12 “under the state law that provides the applicable statute of limitations, . . . even if the amendment 13 would not otherwise relate back under the federal rules.” Butler, 766 F.3d at 1200 (citation 14 omitted). 15 The general rule under California law “is that an amended complaint that adds a new 16 defendant does not relate back to the date of filing the original complaint.” Woo v. Super. Ct., 17 75 Cal. App. 4th 169, 176 (1999). However, an exception exists under California’s Code of Civil 18 Procedure section 474 for the substitution of “a new defendant for a fictitious Doe defendant.” 19 Id. at 176. For the exception to apply, a plaintiff must “actually be ignorant of the name or 20 identity of the fictitiously named defendant at the time the complaint is filed.” Optical Surplus, 21 Inc. v. Super. Ct., 228 Cal. App. 3d 776, 783 (Ct. App. 1991). A plaintiff’s ignorance “should be 22 real and not feigned,” Scherer v. Mark, 64 Cal. App. 3d 834, 841 (Ct. App. 1976), and extends to 23 situations where a plaintiff “knew the identity of the person but was ignorant of the facts 24 [supporting] a cause of action against the person,” Optical Surplus, Inc., 228 Cal. App. 3d at 783 25 (internal citation and marks omitted). 26 a) Plaintiff Knew the Names of the Defendants 27 In its prior order denying the defendants’ motion for summary judgment, this court found 28 plaintiff knew the names of the defendants prior to filing her original complaint. Prior Order 1 (May 6, 2022) at 6. It is undisputed Porter recorded the officers with her cellphone when they 2 provided her with their names. SUF ¶ 17. No evidence suggests Porter lacked access to the 3 cellphone video when she filed her original complaint. Id. ¶ 18. Under the California Court of 4 Appeal’s opinion in Woo, which the Ninth Circuit followed in Butler, 766 F.3d at 1202, “if the 5 plaintiff knows the defendant’s identity and then forgets it at the time the complaint is filed, to 6 use the section 474 relation-back doctrine . . . plaintiff must have at least reviewed readily 7 available information likely to refresh his or her memory.” Woo, 75 Cal. App. 4th at 180. “[I]f 8 the defendant can be identified from the readily available information, then section 474 is 9 unavailable.” Id. Here, reviewing the video before filing her original complaint would have 10 refreshed Porter’s recollection of the officer’s names. 11 b) Plaintiff Knew the Role Each Defendant Played in Her Injuries 12 Previously, the court found that even if Porter knew the defendants’ names, her claims 13 could still relate back if she did not know the role each defendant played in her injuries at the time 14 she filed her initial complaint. Prior Order (May 6, 2022) at 8–9. The court was ultimately 15 persuaded by a sister district court’s analysis in Kestler, 2016 WL 3091674. In Kestler, the 16 plaintiff alleged he was “unaware of the roles each of the individual officers played” when he 17 filed his original complaint and stated the “nature of [defendant officer’s] use of force was 18 uncertain” prior to an officer’s deposition. Id. at *2. The court there found “listing the officers 19 whose names appeared in the incident report as having attacked [plaintiff] – does not establish 20 that Plaintiff knew the specific facts as to [the officer’s] involvement at the time of filing” the 21 initial motion. Id. Similarly, this court concluded Porter “knew only that a group of officers was 22 involved when she filed her original complaint” and added the individual defendants’ names 23 “after she and her counsel ‘reviewed the relevant evidence.’” Prior Order (May 6, 2022) at 8–9 24 (quoting Prior Order (July 20, 2021)). 25 Defendants now argue Porter’s recent deposition testimony makes this case “starkly 26 distinct from Kestler.” Mot. at 12. Defendants contend Porter was not “genuinely ignorant” of 27 the defendants’ role in her injuries at the time she filed her original complaint, “because she had 28 all the information she needed in her memory and simply needed to recall it.” Id. The court 1 agrees. During Porter’s deposition, defendants asked Porter how she became aware of the role 2 each defendant played in her injuries. Porter Dep. 99:15–20. Porter responds she did not review 3 the video footage for a long time because of her trauma, but “became aware” as time passed and 4 she spoke with her counsel, watched the video and had conversations about the incident. 5 Id. 99:21–100:2. She states she then recalled her memories. Id. 100:6. 6 Unlike in Kestler, Porter did not learn entirely new facts that alerted her to the role each 7 defendant played in her injuries. Cf. Scherer v. Mark, 64 Cal. App. 3d 834, 841 (Ct. App. 1976) 8 (finding section 474 was unavailable to a plaintiff in part because “[n]owhere in any pleadings or 9 declarations did plaintiff ever say what new facts she discovered” (emphasis in original)). As the 10 defendants point out, Porter named the individual officers prior to receiving defendants’ initial 11 disclosures and before deposing the defendants. Mot. at 13; see SAC. She does not allege her 12 counsel obtained police reports or other evidence pertaining to the officers’ relationships to her 13 injuries after filing her complaint. Unlike the roles of the other two officers she allegedly 14 discovered through the named officers’ depositions, see Third Mot. Amend, Porter did not obtain 15 new information about the named officers outside of information already existing in her 16 memories, which were then refreshed by reviewing the cellphone video.4 17 At hearing, Porter argued the new information she received was from her son, who was an 18 eyewitness to the event. See Porter Decl. ¶ 20. Porter argues she did not fully know the roles 19 each officer played until she talked to her son several months after filing the initial complaint. 20 See id. However, Porter does not claim her son is the one who informed her of the roles each 21 officer played. Rather, she testified under oath that she recalled the events from her arrest and 22 became aware of the officers’ roles by watching the video and remembering the incident. See 23 Porter Dep. 99:21–100:6. Both parties agree Porter “clarified she became aware of the role that 24 each of the defendant officers played in her injuries by watching her cell phone video.” SUF 4 Had Porter diligently sought leave to amend her complaint to add the two officers, she may have been able to show her claims as to those officers related back to the original complaint. See Prior Order (Sept. 14, 2022). However, Porter did not seek to add the two officers until two years after filing her original complaint and well after initial disclosures. Further, Porter’s counsel did not appear before the court to explain what information Porter obtained that she could not have gleaned during initial discovery. 1 ¶ 16. Nothing in the record indicates the video was not readily available to her at all times. Thus, 2 reviewing the video before filing her original complaint would have refreshed her recollection of 3 the roles each officer played in her injuries. Under California law, because Porter “did not avail 4 herself of readily available information that would have refreshed her recollection of” each 5 defendant’s identity and role, “she is not entitled to use section 474 to amend her complaint after 6 the statute of limitations has run.” Woo, 75 Cal. App. 4th at 180. 7 c) Plaintiff’s Declaration Does Not Create an Issue of Material Fact 8 Porter opposes and cites to her declaration, in which she avers the “old memory” she 9 referenced at the deposition “referred solely to the events leading up to the incident of police 10 misconduct, but not . . . what role that any of the officers played in the police misconduct.” 11 Porter Decl. ¶ 19; see Opp’n at 3. She further states she had “no idea” what role each defendant 12 played until she discussed the event with her counsel and son. Porter Decl. ¶ 20. 13 Defendants argue Porter’s declaration “statements are immaterial” because the material 14 fact is she became aware of defendants’ role in her injuries “by accessing her video and recalling 15 her memory.” Reply at 3. Defendants also argue her declaration statements should be 16 disregarded to the extent they “contradict her clear testimony.” Id. (citing Block v. City of Los 17 Angeles, 253 F.3d 410, 419, n.2 (9th Cir. 2001)). 18 The court agrees. Under Woo, the relevant inquiry is whether Porter could have refreshed 19 her recollection of defendants’ identity by viewing readily available information. See Woo, 20 75 Cal. App. 4th at 180. As explained above, the deposition transcript and Porter’s agreement to 21 defendants’ statements of undisputed fact establish for the purpose of summary judgment she 22 became aware of the defendants’ roles by watching the video. Porter Dep. 99:24–100:6; SUF 23 ¶ 16. 24 Additionally, the court strikes Porter’s declaration to the extent her statements directly 25 contradict her deposition testimony. “[A] party cannot create an issue of fact by an affidavit 26 contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 27 (9th Cir. 1991). This rule, however, “does not automatically dispose of every case in which a 28 contradictory affidavit is introduced to explain portions of earlier deposition testimony.” 1 Id. at 266–67. To apply the rule, a district court must first determine that the contradiction is a 2 “sham” used to “‘create’ an issue of fact and avoid summary judgment.” Id. at 267. Then, the 3 court must determine the inconsistency is “clear and unambiguous” to justify striking an affidavit. 4 Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998–99 (9th Cir. 2009). An affidavit that 5 elaborates on, explains or clarifies deposition testimony is not a sham. Id. at 999. 6 Porter’s recent declaration contradicts her deposition testimony. During her deposition, 7 defendants reminded Porter, “you stated that when you filed your original complaint, you were 8 not aware of what role each of the defendant officers played in your injuries. You said you have 9 become aware, since then, of the role that they played.” Porter Dep. 99:15–19. Defendants 10 proceed to ask, “How did you become aware?” Id. 99:20. Porter answers, “I became aware, 11 because I started watching the video, I started having conversations and talking about it again and 12 . . . recollecting.” Id. at 99:21–100:2. Porter now declares this answer did not refer to what roles 13 the defendants played. See Porter Decl. ¶ 19. On its face, the declaration cannot be squared with 14 her deposition testimony. The court also notes the timing of Porter’s declaration, which was 15 signed on the day Porter filed her opposition to defendants’ summary judgment motion, suggests 16 Porter authored the declaration for the purpose of creating a dispute of material fact. For these 17 reasons, the court strikes Porter’s declaration. 18 d) The Timing of When Plaintiff Observed the Video is Immaterial 19 Porter states she “mentally could not muster the courage to observe the video footage in 20 the cell phone” until after filing the original complaint. Porter Decl. ¶ 18; see Opp’n at 3. While 21 the court is sympathetic for any trauma she experienced, this fact is not material to the question of 22 whether she had readily available information that could have refreshed her memory. See Woo, 23 75 Cal. App. 4th at 180. 24 Porter also argues she “was severely traumatized, and mentally dazed” because of the 25 incident and “due to this melee, she was not aware of what role each of these Defendant officers 26 played in her injuries, at the time she filed her original complaint.” Opp’n at 6 (citing Porter 27 Decl. ¶¶ 15–20). Again, her mental state is not material to whether she had readily available 1 | mformation. Further, she has not provided expert testimony or other evidence to support an 2 | exception to Woo. Cf Gordon v. Mandell-Kogen, No. B158120, 2003 WL 1735493, at *4 3 | (Cal. Ct. App. Apr. 2, 2003), as modified (Apr. 16, 2003) (unpublished) (finding plaintiffs 4 | “argument that she was suffering from memory loss and was ignorant of the true name of the 5 | defendant at the time she filed the complaint is plausible in light of” a doctor’s declaration 6 | attesting to her memory loss). 7 Here, the court finds defendants have established their statute-of-limitation defense as a 8 | matter of law. No reasonable juror could conclude Porter did not have readily available 9 | information that would have refreshed her recollection of the defendants’ identities at the time of 10 | filing her initial complaint. 11 | IV. CONCLUSION 12 Porter’s claims are barred by the statute of limitations. Thus, the court must grant 13 | summary judgment in defendants’ favor. See Brand Surgical Inst. v. Aetna Life Ins. Co., 14 | No. 21-8642, 2022 WL 2046205, at *8 (C.D. Cal. Mar. 7, 2022) (“[T]he Court's hands are tied 15 | with respect to the statute of limitations question.”). 16 Accordingly, defendants’ motion for summary judgment is granted. Plaintiff’s 17 | motion to strike is denied. The Clerk of the Court is directed to close this case. 18 This order resolves ECF Nos. 57, 58 and 71. 19 IT IS SO ORDERED. 20 | DATED: January 9, 2023. [\ (] 21 l ti / { q_/ CHIEF NT] ED STATES DISTRICT JUDGE