Los Molinos Mutual Water Co. v. Ekdahl ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOS MOLINOS MUTUAL WATER No. 2:21-cv-01961-DAD-DMC COMPANY, et al., 12 Plaintiffs, 13 ORDER GRANTING PLAINTIFFS’ v. REQUEST FOR JUDICIAL NOTICE AND 14 GRANTING IN PART AND DENYING IN ERIK EKDAHL, et al., PART DEFENDANTS’ MOTION TO 15 DISMISS CERTAIN OF PLAINTIFFS’ Defendants. CLAIMS 16 (Doc. Nos. 63, 67) 17 18 19 This matter is before the court on the motion to dismiss filed by defendants Erik Ekdahl, 20 Eileen Sobeck, E. Joaquin Esquivel, Dorene D’Adamo, Sean Maguire, Laurel Firestone, and 21 Nichole Morgan (collectively, “the Board defendants”), and by defendant Charlton Bonham, on 22 November 1, 2023. (Doc. No. 63.) The pending motion was taken under submission on 23 November 13, 2023. (Doc. No. 65.) For the reasons explained below, the pending motion to 24 dismiss will be granted in part and denied in part. To the extent the pending motion to dismiss is 25 granted, plaintiffs will not be granted further leave to amend. 26 BACKGROUND 27 On October 18, 2023, plaintiffs Los Molinos Mutual Water Company (“Los Molinos”), 28 Peyton Pacific, LLC (“Peyton”), and Stanford Vina Ranch Irrigation Company (“Stanford Vina”) 1 filed their operative second amended complaint (“SAC”) challenging emergency regulations and 2 water curtailment orders promulgated by the California State Water Resources Control Board 3 (“Board”) in response to extreme drought conditions occurring in 2021 and 2022. (Doc. No. 62.) 4 Plaintiffs did not name the Board as a defendant but rather brought this lawsuit against the Board 5 defendants in their official capacities as members of the Board and staff employed by the Board.1 6 (Id. at 1.) In addition, plaintiff Stanford Vina is asserting claims against defendant Bonham, the 7 executive director of the California Department of Fish and Wildlife (“the Department”), for 8 allegedly abandoning fish ladders and screens intended to protect threatened Central Valley 9 Spring Run Chinook Salmon (“salmon”) and California Central Valley Steelhead (“steelhead”). 10 (Id. at ¶¶ 188–204.) Plaintiff Stanford Vina is also asserting a claim against the Board defendants 11 for violating the Endangered Species Act. (Id. at ¶¶ 205–08.) Plaintiffs allege as follows in their 12 SAC. 13 Plaintiffs and their shareholders own land in the vicinity of Mill Creek and Deer Creek in 14 Tehama County, California, and hold and administer water rights appurtenant to their land 15 holdings. (Id. at ¶¶ 6–8.) Specifically, plaintiffs possess “adjudicated water rights” that permit 16 them to divert water from Mill Creek (Los Molinos and Peyton) and Deer Creek (Stanford Vina) 17 that is used for approximately 11,000 acres of irrigated land, including “for permanent plantings, 18 including orchards, and for irrigated pasture, stock watering, and similar beneficial uses.” (Id.) 19 Plaintiffs Los Molinos and Stanford Vina have also invested in water-related infrastructure to 20 divert and distribute water for their shareholders’ use. (Id. at ¶¶ 6, 8.) 21 On April 21, 2021, Governor Gavin Newsom issued a proclamation declaring a drought 22 state of emergency in California and directed state agencies to take certain actions in response to 23 the drought. (Id. at ¶ 46.) On May 10, 2021, Governor Newsom issued another proclamation 24 related to the drought emergency which directed the Board and the Department to work with 25 1 The Board defendants are: Erik Ekdahl, the deputy director of the division of water rights at 26 the Board; Eileen Sobeck, the executive director of the Board; E. Joaquin Esquivel, the chair of 27 the Board; Dorene D’Adamo, the vice chair of the Board; and Sean Maguire, Laurel Firestone, and Nichole Morgan, members of the Board. (Doc. No. 16 at ¶ 9.) 28 1 water users and other parties on voluntary measures to implement actions needed to protect 2 salmon, steelhead, and other native fishes. (Id. at ¶ 47.) 3 Meanwhile, on or about May 5, 2021, representatives from the Department, the Board, 4 and the National Marine Fisheries Service (“NMFS”) invited plaintiffs Stanford Vina and Los 5 Molinos to discuss the 2021 water conditions and fish passage in Deer Creek and Mill Creek. (Id. 6 at ¶ 33.) Plaintiffs allege that during this meeting, plaintiffs Stanford Vina and Los Molinos were 7 given “an ultimatum”: They submit a proposal to ensure fish passage in 2021, or the Board 8 would adopt and impose emergency regulations that would curtail plaintiffs’ water rights. (Id.) 9 In response, plaintiffs Stanford Vina and Los Molinos submitted proposals for implementing 10 “multi-benefit channel restoration projects” as well as “fishery protection proposals,” which 11 included a request for compensation for water transferred for instream use. (Id. at ¶ 34.) The 12 Board, the Department, and NMFS allegedly rejected these proposals explaining that they did not 13 have authority to authorize the measures that plaintiffs had proposed. (Id. at ¶ 35.) Despite 14 rejecting these proposals from plaintiffs Los Molinos and Stanford Vina, “water users on Mill 15 [Creek] and Deer [Creek] did coordinate with [the Department] and NMFS to voluntarily 16 implement pulse flows in the spring of 2021 for benefit to the fishery, while minimizing impacts 17 to agricultural beneficial uses.” (Id. at ¶ 37.) The 2021 spring salmon run that followed these 18 voluntary measures was allegedly “very large” and “excellent.” (Id. at ¶¶ 38, 41.) 19 However, plaintiffs allege that on September 1, 2021, all defendants issued a notice of 20 proposed emergency rulemaking proposing the adoption of emergency regulations to implement 21 minimum instream flows to protect anadromous fish and provide other public uses. (Id. at ¶ 49.) 22 Plaintiffs allege that the effect of the proposed emergency regulations would require them, and 23 their shareholders, “to forbear from exercising their vested rights to use water from Deer and Mill 24 Creeks during irrigation season, thereby eliminating those rights.” (Id.) On September 22, 2021, 25 defendants Esquivel, D’Adamo, Maguire, Firestone, and Morgan considered the proposed 26 emergency regulations at a regularly scheduled meeting of the Board. (Id. at ¶ 55.) Plaintiffs 27 allege that at that meeting of the Board, no evidentiary hearing was held regarding the emergency 28 regulations despite plaintiffs requesting such a hearing and pointing out that if the emergency 1 regulations were adopted and implemented an “inverse condemnation and taking would occur.” 2 (Id. at ¶ 56.) Plaintiffs also allege that their requests to cross-examine employees of the 3 Department, the Board, and NMFS who presented on the purported merits of the emergency 4 regulations at the meeting were denied. (Id. at ¶ 57.) At the conclusion of the Board’s 5 September 22, 2021 meeting, defendants Esquivel, D’Admo, Maguire, Firestone, and Morgan 6 approved Resolution No. 2021-0038, which adopted the proposed emergency regulations, with 7 some minor modifications. (Id. at ¶ 59.) On October 4, 2021, the California Office of 8 Administrative Law approved the proposed emergency regulations, specifically, California Code 9 of Regulations title 23, §§ 876.5, 876.7, 878.4, and amended §§ 878.7, 879 (“the 2021 Emergency 10 Regulations”), which then went into effect. (Id.) On August 5, 2022, the Board defendants 11 issued a notice of re-adoption of the 2021 Emergency Regulations. (Id. at ¶ 105.) Plaintiffs 12 submitted timely written comments regarding the re-adoption of the 2021 Emergency 13 Regulations. (Id. at ¶ 106.) On August 16, 2022, defendants Esquivel, D’Adamo, Maguire, 14 Firestone, and Morgan approved Resolution No. 2022-0030, which re-adopted the proposed 15 emergency regulations as modified at the regularly scheduled meeting. (Id. at ¶¶ 107, 113.) On 16 September 21, 2022, the California Office of Administrative Law approved the proposed 17 emergency regulations (“the 2022 Emergency Regulations”), which then went into effect. (Id. at 18 ¶ 113.)2 19 The Emergency Regulations declared that any diversions from Deer Creek and Mill Creek 20 would be deemed an “unreasonable use” if the diversions by water rights holders—no matter the 21 reason or purpose for the diversions—reduced the flow in those two creeks below a minimum 22 threshold set forth in the Emergency Regulations. (Id. at ¶ 60.) The minimum instream flows 23 established by the Emergency Regulations were deemed the minimum to ensure passage for 24 anadromous fish on Deer Creek and Mill Creek and those flow rates vary based on the time of 25 year and the presence of certain anadromous fish. (Id.) As a result of the Emergency 26 27 2 Because the 2021 and 2022 Emergency Regulations are identical in relevant part, the court will refer to them collectively as “the Emergency Regulations” or “the Regulations.” 28 1 Regulations, plaintiffs allege that they are prohibited from diverting any water in Deer Creek and 2 Mill Creek if those diversions would interfere with achieving the minimum instream flows for 3 fish. (Id. at ¶ 60) (citing Cal. Code Regs. tit. 23, § 876.5). Importantly, the Emergency 4 Regulations authorized defendant Ekdahl to issue curtailment orders if he determined that 5 continued diversions of water would interfere with achieving the minimum instream flows. (Id.) 6 (citing Cal. Code Regs. tit. 23, § 876.5). 7 On October 11, 2021, defendants issued Water Rights Orders 2021-0089 (Mill Creek) and 8 2021-0090 (Deer Creek), which ordered the water rights holders on those creeks, including 9 plaintiffs, to curtail their diversion of water beginning on October 15, 2021. (Id. at ¶ 65.) On 10 October 7, 2022, defendants issued Water Rights Orders 2022-0169 (Mill Creek) and 2022-0170 11 (Deer Creek), which ordered the water rights holders on those creeks, including plaintiffs, to 12 curtail their diversion of water beginning on October 15, 2022. (Id. at ¶ 114.)3 According to 13 plaintiffs, the effect of the Curtailment Orders and Emergency Regulations is that their “vested 14 water rights . . . have been damaged and the reasonable value of the water was taken for public 15 use by defendants.” (Id. at ¶ 67.)4 16 Additionally, plaintiffs allege that defendant Bonham violated the Endangered Species 17 Act (“ESA”) through his deficient maintenance of fish ladders and screens. (Id. at ¶¶ 189–204.) 18 Plaintiffs further allege that the Board defendants violated the ESA through the Emergency 19 3 Because the 2021 and 2022 Curtailment Orders are identical in relevant part, the court will refer 20 to them collectively as “the Curtailment Orders” or “the Orders.” 21 4 Plaintiffs request that judicial notice be taken of eight documents described above: (1) a copy of Resolution No. 2021-0038 adopting the 2021 Emergency Regulations; (2) a copy of the 2021 22 Emergency Regulations; (3) a copy of Water Rights Order 2021-0089; (4) a copy of Water Rights 23 Order 2021-0090; (5) a copy of Resolution No. 2022-0030 adopting the 2022 Emergency Regulations; (6) a copy of the 2022 Emergency Regulations; (7) a copy of Water Rights Order 24 2022-0169; and (8) a copy of Water Rights Order 2022-0170. (Doc. No. 67.) Defendants do not oppose plaintiffs’ judicial notice request in their reply, and indeed the Board defendants requested 25 that judicial notice be taken of certain of these documents previously (see Doc. Nos. 31-2; 61 at 9). Plaintiffs’ request will be granted in full. See Full Circle of Living & Dying v. Sanchez, 26 No. 2:20-cv-01306-KJM-KJN, 2023 WL 373671, at *2 n.1 & n.2 (E.D. Cal. Jan. 24, 2023) 27 (taking judicial notice of “publications, statutes, and regulations related to the funeral industry” as well as government documents obtained from a website run by a California state agency). 28 1 Regulations and Curtailment Orders, which plaintiffs assert attracted salmon and steelhead into 2 harmful conditions in Deer and Mill Creeks, including subjecting the fish to the fish ladders and 3 screens deficiently maintained by defendant Bonham. (Id. at ¶ 205.) Plaintiffs provide more 4 detailed factual allegations regarding these claims in their SAC. (See id. at ¶¶ 188–208.) 5 Based on the foregoing allegations, plaintiffs assert in their SAC the following eight 6 claims against the Board defendants: (1) a 42 U.S.C. § 1983 claim for the taking of real property 7 without compensation in violation of the Fifth and Fourteenth Amendments; (2) a § 1983 claim 8 for a legislative taking of property without compensation in violation of the Fifth and Fourteenth 9 Amendments; (3) a § 1983 claim for the taking of real property without compensation through the 10 curtailment orders in violation of the Fifth and Fourteenth Amendments; (4) a § 1983 claim for 11 the taking of real property without compensation through the emergency regulations in violation 12 of the Fifth and Fourteenth Amendments: (5) a § 1983 claim for the failure to hold an evidentiary 13 hearing in violation of procedural due process and the Fifth and Fourteenth Amendments; (6) a 14 § 1983 claim for the failure to hold an evidentiary hearing with regard to the curtailment orders in 15 violation of procedural due process and the Fifth and Fourteenth Amendments; (7) a § 1983 claim 16 for the failure to hold an evidentiary hearing with regard to the emergency regulations in violation 17 of procedural due process and the Fifth and Fourteenth Amendments; and (8) a claim for 18 declaratory relief. (Id. at ¶¶ 133–87.) Plaintiffs also assert (9) a claim for violation of the 19 Endangered Species Act, 16 U.S.C. § 1538, against all defendants. (Id. at ¶¶ 188–208.) Finally, 20 plaintiff Stanford Vina asserts the following three claims against defendant Bonham: (10) a § 21 1983 claim for the taking of real property without compensation in violation of the Fifth and 22 Fourteenth Amendments; (11) a § 1983 claim for the failure to hold an evidentiary hearing in 23 violation of procedural due process and the Fifth and Fourteenth Amendments; and (12) a claim 24 for declaratory relief. (Id. at ¶¶ 209–27.) 25 On November 1, 2023, defendants filed the pending motion to dismiss certain of 26 plaintiffs’ claims asserted in the SAC. (Doc. No. 63.) On November 29, 2023, plaintiffs filed 27 their opposition to the pending motion. (Doc. No. 66.) Defendants filed their reply thereto on 28 December 11, 2023. (Doc. No. 68.) 1 LEGAL STANDARD 2 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 3 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 4 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 5 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 6 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 7 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 8 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 9 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 10 Iqbal, 556 U.S. 662, 678 (2009). 11 In determining whether a complaint states a claim on which relief may be granted, the 12 court accepts as true the allegations in the complaint and construes the allegations in the light 13 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, 14 the court need not assume the truth of legal conclusions cast in the form of factual allegations. 15 U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not 16 require detailed factual allegations, “it demands more than an unadorned, the-defendant- 17 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers 18 mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” 19 Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements 20 of a cause of action, supported by mere conclusory statements, do not suffice.”). It is 21 inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the 22 defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. 23 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 24 In ruling on a motion to dismiss under Rule 12(b)(6), the court is permitted to consider 25 material that is properly submitted as part of the complaint, documents that are not physically 26 attached to the complaint if their authenticity is not contested and the plaintiffs’ complaint 27 necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d. 28 668, 688–89 (9th Cir. 2001). 1 ANALYSIS 2 A. Takings Claims (Claims 1–4, 10) 3 The Eleventh Amendment prohibits federal courts from hearing suits brought by private 4 citizens against state governments without the state’s consent. Hans v. Louisiana, 134 U.S. 1, 15 5 (1890); Sofamor Danek Grp. v. Brown, 124 F.3d 1179, 1183 (9th Cir. 1997); Nat. Res. Def. 6 Council v. Cal. Dep’t of Transp., 96 F.3d 420, 421 (9th Cir. 1996). The Eleventh Amendment 7 specifically provides states with a sovereign immunity from suit, as opposed to a nonwaivable 8 limit on the federal courts subject matter jurisdiction. Idaho v. Coeur d’Alene Tribe of Idaho, 521 9 U.S. 261, 267 (1997); see also Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998). This 10 state sovereign immunity extends to state agencies and to state officers who act on behalf of the 11 state regardless of the relief sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 12 89, 100 (1984); Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 13 963, 967 (9th Cir. 2010). 14 The Supreme Court has established an important limitation on state sovereign immunity. 15 Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 254 (2011). Specifically, the Eleventh 16 Amendment “does not bar claims seeking prospective injunctive relief against state officials to 17 remedy a state’s ongoing violation of federal law.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 18 824 F.3d 858, 865 (9th Cir. 2016) (citing Ex parte Young, 209 U.S. 123, 149–56 (1908)). This 19 limitation, known as the Ex parte Young exception, “rests on the premise . . . that when a federal 20 court commands a state official to do nothing more than refrain from violating federal law, he is 21 not the State for sovereign-immunity purposes.” Stewart, 563 U.S. at 255; see also Pennhurst, 22 465 U.S. at 102. “In determining whether the doctrine of Ex parte Young avoids an Eleventh 23 Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] 24 complaint alleges an ongoing violation of federal law and seeks relief properly characterized as 25 prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) 26 (quoting Coeur d’Alene Tribe of Idaho, 521 U.S. at 296). 27 In the pending motion to dismiss, defendants argue that plaintiffs’ takings claims brought 28 under the Fifth and Fourteenth Amendments are barred by state sovereign immunity as provided 1 for in the Eleventh Amendment. (Doc. No. 63-1 at 11–14.) In response, plaintiffs advance 2 arguments in their opposition that the court has already rejected in its Prior Order (see Doc. 3 No. 66 at 18–19, 22–23), cite authorities from other circuits with cursory analysis (see id. at 19– 4 20), and cite authorities with no relevance to the Eleventh Amendment (see id. at 20). Plaintiffs 5 also attempt to distinguish the Ninth Circuit and Eastern District of California cases cited by the 6 court in the Prior Order. (See id. at 20–21.) 7 In its previous order granting in part and denying in part defendants’ motion to dismiss 8 plaintiff’s first amended complaint (“the Prior Order”), the court dismissed plaintiffs’ takings 9 claims. (Doc. No. 61 at 11–15.) In the Prior Order, the court granted plaintiffs leave to amend 10 their pleadings with allegations that plaintiffs “do not have available to them—now or in the 11 future—California’s mechanism for recovering just compensation for an alleged taking in 12 violation of the Fifth Amendment,” despite the court being “skeptical that plaintiffs can [do so].”5 13 (Id. at 14); cf. Knick v. Twp. of Scott, Pennsylvania, 588 U.S. 180, 201 (2019) (“Today, because 14 the federal and nearly all state governments provide just compensation remedies to property 15 owners who have suffered a taking, equitable relief is generally unavailable. As long as an 16 adequate provision for obtaining just compensation exists, there is no basis to enjoin the 17 government’s action effecting a taking.”). Plaintiffs argue that the frequency with which 18 defendants have engaged in takings renders California’s just compensation provision inadequate. 19 (Doc. No. 66 at 21–22.) The only authority cited by plaintiffs in support of this argument is the 20 Eighth Circuit’s decision in Pharmaceutical Research and Manufacturers of America v. Williams, 21 64 F.4th 932 (8th Cir. 2023). In that case, the court concluded that the Ex Parte Young exception 22 was applicable to a takings claim and that injunctive relief was available because the potential 23 need to continuously file thousands of suits rendered Minnesota’s inverse condemnation 24 provision inadequate. Id. at 940–46, 948–50. Plaintiffs argue that the situation presented in 25 5 The court highlighted several deficiencies in plaintiffs’ takings claims and granted plaintiffs leave to amend those claims for several reasons. Because plaintiffs have again failed to 26 sufficiently allege the inadequacy of California’s just compensation provision, the court need 27 not—and therefore does not—consider whether plaintiffs have remedied the other deficiencies in their pleadings. 28 1 Williams is similar to that posed by defendants here issuing four emergency regulations in seven 2 years. (Doc. No. 66 at 21.) The court disagrees and also notes that while plaintiffs cite to several 3 paragraphs in their SAC in support of this argument (see Doc. No. 66 at 21–22), none of the cited 4 paragraphs contain anything more than conclusory assertions that just compensation remedies are 5 inadequate. 6 Accordingly, defendants’ motion to dismiss plaintiffs’ takings claims (claims 1, 2, 3, 4, 7 and 10) will be granted, without leave to amend. (See Doc. No. 61 at 11–15); see also Culinary 8 Studios, Inc. v. Newsom, 517 F. Supp. 3d 1042, 1065 (E.D. Cal. 2021) (concluding that the 9 plaintiff’s request for declaratory and injunctive relief under their takings claims did not provide a 10 basis for the Ex parte Young exception because there was no indication that the plaintiff could not 11 seek just compensation through state law procedures).6 12 B. Due Process Claims for Evidentiary Hearings Brought Against the Board 13 Defendants (Claims 5, 6, and 7) 14 Defendants argue that plaintiffs’ claims 5, 6, and 7 brought against the Board defendants 15 seeking evidentiary hearings must be dismissed because the Emergency Regulations and 16 Curtailment Orders were legislative in nature, not adjudicative, and thus did not require 17 evidentiary hearings under the Fifth and Fourteenth Amendments. (Doc. No. 63-1 at 14–17.) 18 Plaintiffs argue that the court’s Prior Order applied the wrong legal standard for 19 determining whether an action is legislative or adjudicative by considering whether or not the 20 Emergency Regulations and Curtailment Orders affected large areas and were directed at one or a 21 few individuals. (Doc. No. 66 at 13–17.) Plaintiffs contend that “[t]he ‘large area’ reasoning of 22 6 Plaintiffs also argue that “supplemental jurisdiction applies to the SAC’s takings claims against 23 [the Board defendants], regardless of Ex Parte Young.” (Doc. No. 66 at 24.) As with several of plaintiffs’ arguments presented in opposition to the pending motion, the court clearly rejected this 24 same argument in its Prior Order. (See Doc. No. 61 at 16 n.8) (“Plaintiffs also argue that even if their claims are barred under the Eleventh Amendment, they are properly heard under 28 U.S.C. 25 § 1367(a). This argument has been explicitly foreclosed by the Supreme Court which has held ‘that § 1367(a)’s grant of jurisdiction does not extend to claims against nonconsenting state 26 defendants.’”) (quoting Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 540–41 (2002)). The 27 judicial crisis in the Eastern District of California has been well-publicized. The parties are urged to read the court’s orders and not waste those scarce judicial resources. 28 1 the [pending motion to dismiss] and [Prior Order] is not a legitimate or feasible standard for due 2 process hearing rights . . . .” (Id. at 14.) Notably, plaintiffs provide no authority suggesting that 3 this standard has been repudiated by the Ninth Circuit. Compare Samson v. City of Bainbridge 4 Island, 683 F.3d 1051, 1061 (9th Cir. 2012) (“‘[G]overnmental decisions which affect large areas 5 and are not directed at one or a few individuals’ are legislative in nature . . . .”) (citation omitted); 6 Best Supplement Guide, LLC v. Newsom, No. 20-17362, 2022 WL 2703404, at *2 (9th Cir. 2022) 7 (“[G]overnmental decisions which affect large areas and are not directed at one or a few 8 individuals do not give rise to the constitutional procedural due process requirements of 9 individual notice and hearing.”) (citation omitted).7 10 Rather, plaintiffs argue, the proper “test for whether due process hearing requirements 11 apply is whether or not an action is generally applicable to an entire electoral class within the 12 government actor’s jurisdiction.” (Doc. No. 66 at 10.) Plaintiffs cite several decisions from the 13 Ninth Circuit and Supreme Court for this proposition (see id. at 10, 13–17), but none of the cases 14 cited contains any language supporting such an argument. Moreover, it is unclear what plaintiffs 15 mean by “electoral class” given that they provide as examples the “entire class of Oakland hotels” 16 and “all locations where the fish species migrate.” (See id. at 10.) 17 Plaintiffs further argue that all actions “interfering with or modifying water rights are also 18 quasi-adjudicatory as a matter of law,” (see Doc. No. 66 at 12), but as defendants point out (see 19 Doc. No. 63-1 at 15–16), the cases plaintiffs cite do not support such a broad proposition. Indeed, 20 immediately after making this argument, plaintiffs acknowledge in their opposition that “courts 21 have endorsed [the Board’s] authority to promulgate general policy statements of reasonableness” 22 without requiring evidentiary hearings. (Doc. No. 66 at 12.) 23 In its Prior Order, the court dismissed plaintiffs’ due process claims brought against the 24 Board defendants because plaintiffs had “not plausibly alleged in their FAC—beyond conclusory 25 claims that their rights were impaired—how the temporary emergency regulations and 26 27 7 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b). 28 1 curtailment orders ‘exceptionally affected [them] . . . on an individual basis’ when the limitations 2 on water diversion were imposed on all water rights holders in the Mill Creek and Deer Creek 3 watersheds.” (Doc. No. 61 at 23–24) (quoting Harris v. Cnty. of Riverside, 904 F.2d 497, 502 4 (9th Cir. 1990)); see also Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 446 5 (1915) (finding that a hearing was required when “[a] relatively small number of persons was 6 concerned, who were exceptionally affected, in each case upon individual grounds,” but not when 7 “a general determination” has been made). Plaintiffs added to their SAC new allegations that the 8 Board defendants “regulate and have jurisdiction over California’s rivers, creeks, and other water 9 bodies” spanning millions of acres, that the Curtailments Orders stated the name of each affected 10 water rights holder, that the Emergency Regulations and Curtailment Orders made 11 “individualized decisions as to their unreasonableness,”8 and that plaintiffs hold the rights to a 12 majority of the flow of Deer Creek and Mill Creek. (Doc. No. 62 at ¶¶ 164–67.) However, 13 plaintiffs do not provide any argument in their opposition explaining why these allegations are 14 sufficient to allege that they were exceptionally affected. Instead, relying on their inaccurate 15 view of the law described above, plaintiffs argue that these allegations show that they “do not 16 comprise an entire class of California water right holders” and that they lack “meaningful 17 electoral recourse . . . .” (Doc. No. 66 at 10–11.) 18 The court concludes that plaintiffs have again failed to sufficiently allege that the 19 Emergency Regulations and Curtailment Orders were adjudicatory in nature such that conducting 20 evidentiary hearings were required. Plaintiffs allege that the Emergency Regulations and 21 Curtailment Orders affected all 22 water rights holders on Mill Creek and Deer Creek. (Doc. 22 No. 62 at ¶ 165.) Plaintiffs do not allege that they were targeted more so than the other water 23 rights holders on Mill and Deer Creeks, and at times appear to actually allege the opposite. (See 24 id. at ¶ 140 (“The burdens associated with providing water to endangered fish species should 25 therefore be borne by the public as a whole, and not just by plaintiffs and similarly situated water 26 8 Plaintiffs do not explain further what this allegation means. The court notes that plaintiffs 27 repeatedly allege elsewhere in their SAC that the Emergency Regulations constitute “automatic determination[s].” (See, e.g., Doc. No. 62 at ¶ 50.) 28 1 rights holders.”) (emphasis added); see also id. at ¶ 77 (“Plaintiffs’ senior rights were not 2 curtailed because, unlike most other water right holders in the Delta watershed, water is available 3 for diversion under plaintiffs’ super-senior water rights.”)). Plaintiffs instead argue, unsupported 4 by authority, that the Board defendants should have modified the water rights of all water rights 5 holders in the state of California. (Doc. No. 66 at 10.) Moreover, plaintiffs’ new allegations in 6 the SAC on this point are either conclusory or otherwise insufficient. Plaintiffs allege that the 7 Curtailment Orders targeted plaintiffs by name, but a review of the Orders show that they apply in 8 broad terms to all water rights holders on the two creeks and simply include a list of all such 9 holders as an attachment at the end of each Order. (See Doc. No. 67 at 63, 77, 121, 136.) 10 Nothing in the allegations of plaintiffs’ SAC nor plaintiffs’ opposition to the pending motion to 11 dismiss provides a basis upon which to find that the Emergency Regulations or Curtailment 12 Orders were adjudicative in nature. (See Doc. No. 61 at 23–24); see also Hotel & Motel Ass’n of 13 Oakland, 344 F.3d at 969–70 (finding that the plaintiffs had failed to plausibly allege a procedural 14 due process claim against the city’s promulgation of an ordinance affecting all hotels, even 15 though the ordinance was motivated by a subcategory of bad actors, because the ordinance did 16 not “specifically target[] a single individual’s property for a zoning change” nor “exceptionally 17 affect[] . . . [the plaintiffs] on an individual basis”); Samson, 683 F.3d at 1056–60 & n.10 (holding 18 that an emergency ordinance imposing a moratorium on shoreline development that was enacted 19 without a public hearing did not run afoul of procedural due process because it “applied generally 20 to all owners of shoreline property on Bainbridge Island”); cf. Bi-Metallic Inv. Co., 239 U.S. at 21 445 (“Where a rule of conduct applies to more than a few people, it is impracticable that everyone 22 should have a direct voice in its adoption.”). 23 Because the allegations of plaintiffs’ SAC indicate that the Emergency Regulations and 24 Curtailment Orders were legislative in nature, “due process is satisfied when the legislative body 25 performs its responsibilities in the normal manner prescribed by law.” Halverson v. Skagit Cnty., 26 42 F.3d 1257, 1260 (9th Cir. 1994). In this regard, plaintiffs allege in their SAC that they 27 received notice of the Board’s promulgation and issuance of the Emergency Regulations and 28 Curtailment Orders, “participated orally and in writing in the meetings at which defendants voted 1 to adopt the emergency regulations and curtailment orders,” and after adoption, plaintiffs “sought 2 reconsideration of the curtailment order[s].” (Doc. No. 62 at ¶¶ 13, 49, 53, 105–07, 110–13.) 3 Moreover, plaintiffs do not respond to defendants’ argument that the Board defendants’ actions 4 were performed in the normal manner prescribed by law. Plaintiffs thus have not plausibly 5 alleged a cognizable procedural due process claim brought against the Board defendants. (See 6 Doc. No. 62 at 24); see also Free Spirit Organics, NAC v. San Joaquin Cnty. Bd. of Supervisors, 7 No. 2:17-cv-02271-KJM-JDP, 2022 WL 902834, at *7 (E.D. Cal. Mar. 25. 2022) (finding that the 8 plaintiffs had failed to plausibly allege a procedural due process claim where the “plaintiffs do not 9 allege the County departed from its normal procedure for enacting an emergency moratorium” 10 ordinance temporarily limiting the production of industrial hemp). 11 Accordingly, the motion to dismiss plaintiffs’ procedural due process claims brought 12 against the Board defendants will be granted. Given plaintiffs’ repeated failure to supply the 13 requisite allegations in support of those claims, leave to amend will be denied. 14 C. Endangered Species Act Claim (Claim 9) 15 Plaintiffs assert a claim for violation of the Endangered Species Act (“ESA”), 16 U.S.C. 16 § 1538, against the Board defendants and defendant Bonham. (Doc. No. 62 at 57.) Plaintiffs 17 allege that in issuing the Emergency Regulations, the Board defendants created an imminent risk 18 of take by attracting salmon and steelhead into areas with fish screens that were deficiently 19 maintained by defendant Bonham. (Id. at ¶¶ 205–08.) Defendants’ previous motion to dismiss 20 plaintiffs’ ESA claim brought against defendant Bonham for his failure to maintain the fish 21 screens was denied in the court’s Prior Order. (Doc. No. 61 at 30–33.) In their pending motion, 22 defendants do not challenge plaintiffs’ ESA claim brought against defendant Bonham in the SAC. 23 (Doc. No. 63-1 at 19.) 24 However, defendants do argue that the ESA claim asserted against the Board defendants 25 must be dismissed because plaintiffs failed to secure leave to amend their ESA claim, which was 26 asserted only against defendant Bonham in the FAC. (Doc. No. 63-1 at 19); see also Fed. R. Civ. 27 P. 15(a)(2) (“[A] party may amend its pleading only with the opposing party’s written consent or 28 the court’s leave. The court should freely give leave when justice so requires.”). Defendants 1 further argue that because their previous motion to dismiss was denied with regards to plaintiffs’ 2 ESA claim asserted against defendant Bonham, plaintiffs were not granted leave to amend their 3 ESA claim in the Prior Order. (Doc. No. 63-1 at 19.) Plaintiffs argue in opposition that they 4 stated their intent to add the Board defendants to their ESA claim in their motion for leave to 5 amend the FAC (Doc. No. 48) that was filed on November 14, 2022. (Doc. No. 66 at 28.) 6 Defendants argue in reply that plaintiffs’ motion for leave to amend the FAC was denied as moot 7 in light of the court’s order adopting the parties’ stipulation (“the Stipulation”) (Doc. No. 55) to 8 permit plaintiffs to amend their pleadings “to assert challenges to the 2022 Regulations, 9 Resolution, and/or any 2022 Curtailment Orders” (Doc. No. 56 at 2). (Doc. No. 68 at 16.) 10 Defendants argue that nothing in the Stipulation, the court’s order adopting the Stipulation, or the 11 Prior Order granted plaintiffs leave to amend their pleadings to add the Board defendants to their 12 ESA claim. (Doc. Nos. 63-1 at 19; 68 at 16.) 13 District courts in this circuit have held that “[w]here an amended pleading cannot be made 14 as of right and is filed without leave of court or consent of the opposing party, it is without legal 15 effect.” Gengler v. United States ex rel. Dept. of Defense and Navy, 463 F. Supp. 2d 1085, 1093 16 (E.D. Cal. 2006); see, e.g., Sanvelian v. Ryder Truck Rental, Inc., No. 20-cv-01314-ODW-SK, 17 2020 WL 4060176, at *3 (C.D. Cal. July 20, 2020) (quoting Gengler, 463 F. Supp. 2d at 1093). 18 However, many district courts “have agreed to consider an amended complaint served without 19 judicial permission as long as the court would have granted leave to amend if it had been sought 20 and none of the parties would be prejudiced by allowing the change.” Rouchon v. Cnty. of Los 21 Angeles, No. 2:18-cv-10029-VAP-MAA, 2019 WL 8755120, at *2 (C.D. Cal. Nov. 26, 2019) 22 (citation omitted); see, e.g., Sanvelian, 2020 WL 4060176, at *3 (quoting Rouchon, 2019 WL 23 8755120, at *2); cf. United States v. $11,500.00 in U.S. Currency, 710 F.3d 1006, 1013 (9th Cir. 24 2013) (“Though Guerrero never moved to amend his claim, the absence of a formal motion for 25 leave to amend does not preclude the district court from granting it.”). 26 The court concludes that plaintiffs failed to secure the court’s leave to amend their FAC to 27 assert an ESA claim against the Board defendants. Throughout plaintiffs’ motion for leave to 28 amend their FAC, plaintiffs distinguished between two requested forms of amendment: The 1 proposed SAC would (1) “update[] the claims to challenge both the 2021 regulations and 2 curtailment orders and the renewed 2022 regulations and orders”; and (2) “also update[] the 3 pleading to include the [Board defendants] as defendants to the ESA claim . . . .” (Doc. No. 48 at 4 5–6; see also id. at 10–11 (stating the same), 9 (“Defendants have had ample notice that plaintiffs 5 would challenge defendants’ actions in 2022 to renew the regulations and curtailment orders, as 6 well as the violations of the ESA.”)). By contrast, the Stipulation only discusses leave to amend 7 “to add claims challenging the 2022 Regulations . . . [and] Curtailment Orders.” (Doc. No. 55 at 8 2.) The Stipulation made no mention of amending any ESA claims, nor did the court’s order 9 adopting the Stipulation. Moreover, plaintiffs base their ESA claim against the Board defendants 10 on the Emergency Regulations and Curtailment Orders issued in both 2021 and 2022 (see Doc. 11 No. 62 at ¶ 205), undercutting plaintiffs’ argument that adding the Board defendants to their ESA 12 claim is a method of challenging the 2022 Regulations and Orders. Read in context, the court’s 13 order adopting the Stipulation does not permit plaintiffs to add their ESA claim against the Board 14 defendants. 15 Nevertheless, the court concludes that leave to amend would have been granted had 16 plaintiffs sought it and that defendants will not be unduly prejudiced by allowing the change. 17 “Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad 18 faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 19 amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of 20 the amendment, [or] futility of amendment, etc.’” Sonoma Cnty. Ass’n of Retired Emps. v. 21 Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 22 (1962)). While consideration of the undue delay factor may arguably support denial of leave to 23 amend in this regard here, defendants do not argue for—and the court does not find—any “bad 24 faith or dilatory motive” on the part of plaintiffs. Foman, 371 U.S. at 182. Moreover, the 25 proposed amendment would not be futile. See Pizana v. SanMedica Int’l LLC, 345 F.R.D. 469, 26 484 (E.D. Cal. 2022) (“[A] proposed amendment is futile only if no set of facts can be proved 27 under the amendment that would constitute a claim.”). Defendants argue that plaintiffs’ 28 allegations in the SAC show that the Emergency Regulations did not harm, but rather benefitted, 1 the endangered fish at issue. (Doc. Nos. 63-1 at 20–21; 68 at 15–16.) But in light of plaintiffs’ 2 ESA claim premised on defendant Bonham’s alleged failure to maintain the fish screens, as well 3 as plaintiffs’ allegations in the SAC that the Emergency Regulations attracted salmon and 4 steelhead to those same dangerous and ill-maintained fish screens, there is certainly not “no set of 5 facts [that] can be proved under the amendment that would constitute a claim.” Pizana, 345 6 F.R.D. at 484. Finally, amendment would not unduly prejudice any party. The court notes that 7 defendants do not argue in the pending motion or in their reply brief that amendment would cause 8 undue prejudice. Furthermore, discovery has not yet begun in this action, and adding the Board 9 defendants to the ESA claim would do little to enlarge the scope of discovery given that 10 plaintiffs’ ESA claim brought against defendant Bonham is unchallenged. See Bencomo v. Cnty. 11 of Sacramento, No. 2:23-cv-00440-DAD-JDP, 2024 WL 382381, at *3 (E.D. Cal. Jan. 31, 2024) 12 (finding no undue prejudice in part because the “defendants have not adequately demonstrated 13 that the scope of discovery will be expanded to an extent that unduly burdens them”). Indeed, the 14 court has yet to even issue a scheduling order in this action. 15 The court therefore proceeds to the merits of defendants’ motion to dismiss plaintiffs’ 16 ESA claim brought against the Board defendants. As described above, plaintiffs allege that the 17 Emergency Regulations issued by the Board defendants attract salmon and steelhead to dangerous 18 fish screens resulting in their take. Defendants’ argument that the Emergency Regulations 19 actually benefit salmon and steelhead does not prevent the court from easily drawing the 20 reasonable inference that the Board defendants’ alleged actions violated the ESA. (See Doc. 21 No. 61 at 29–33.) 22 Accordingly, defendants’ motion to dismiss plaintiffs’ ESA claim brought against the 23 Board defendants will be denied. 24 D. Declaratory Relief (Claims 8 and 12) 25 The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its 26 jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations 27 of any interested party seeking such declaration, whether or not further relief is or could be 28 sought.” 28 U.S.C. § 2201(a). “However, declaratory relief is a remedy, not a freestanding cause 1 of action, and Plaintiffs’ action for declaratory relief survives only to the extent that Plaintiffs’ 2 other causes of action state a claim for relief.” Darling v. Green, No. 12-cv-00362-PSG-CW, 3 2013 WL 12132058, at *9 (C.D. Cal. Apr. 18, 2013); see also City of Reno v. Netflix, Inc., 52 4 F.4th 874, 878 (9th Cir. 2022) (“We agree with our sister circuits that have considered the issue 5 that the Declaratory Judgment Act does not provide an affirmative cause of action where none 6 otherwise exists.”); Hammerling v. Google LLC, 615 F. Supp. 3d 1069, 1097 (N.D. Cal. 2022) 7 (“The Declaratory Judgment Act does not provide an independent theory for recovery; if the 8 underlying claims are dismissed, . . . then there is no basis for any declaratory relief.”); Lorona v. 9 Ariz. Summit L. Sch., LLC, 151 F. Supp. 3d 978, 997 (D. Ariz. 2015) (“The Second Amended 10 Complaint lists declaratory and injunctive relief as separate counts. . . . These are remedies, not 11 independent causes of action.”). 12 1. Claim 8 13 Plaintiffs assert a claim for declaratory relief against the Board defendants seeking a court 14 order declaring that their adoption and implementation of the Emergency Regulations and 15 Curtailment Orders are unlawful takings and violated plaintiffs’ procedural due process rights 16 (“Claim 8”). (Doc. No. 62 at ¶¶ 181–87.) Defendants argue that Claim 8 must be dismissed 17 because plaintiffs’ other causes of action fail to state a viable claim against the Board defendants 18 for either an unlawful taking or a violation of procedural due process. (Doc. No. 63-1 at 18.) 19 Plaintiffs appear to agree that Claim 8 rises or falls with their claims for unlawful takings and 20 violations of procedural due process asserted against the Board defendants. (Doc. No. 66 at 26.) 21 Because these other claims will all be dismissed without leave to amend for the reasons explained 22 above, plaintiffs’ Claim 8 seeking declaratory relief will also be dismissed without leave to 23 amend. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 2. Claim 12 2 Lastly, plaintiff Stanford Vina asserts a claim for declaratory relief against defendant 3 Bonham9 seeking a court order declaring that defendant Bonham’s actions violated the ESA, 4 constituted an unlawful taking, and violated plaintiff’s procedural due process rights. (Doc. 5 No. 62 at 69.) Defendants argue that this claim must be dismissed to the extent it requests 6 declaratory relief as to plaintiff Stanford Vina’s unlawful taking claim asserted against defendant 7 Bonham. (Doc. Nos. 63-1 at 19; 68 at 15.) Because the underlying unlawful taking claim will be 8 dismissed without leave to amend, plaintiff Stanford Vina’s claim for declaratory relief premised 9 on its unlawful taking claim asserted against defendant Bonham will be dismissed without leave 10 to amend. In all other regards, Claim 12 will not be dismissed. 11 CONCLUSION 12 For the reasons explained above: 13 1. Plaintiffs’ request for judicial notice (Doc. No. 67) is granted; 14 2. Defendants’ motion to dismiss is granted in part and denied in part as follows: 15 a. Plaintiffs’ unlawful takings claims (claims 1, 2, 3, 4, and 10) are dismissed 16 without leave to amend; 17 b. Plaintiffs’ claims for violations of due process asserted against defendants 18 Ekdahl, Sobeck, Esquivel, D’Adamo, Maguire, Firestone, and Morgan 19 (claims 5, 6, and 7) are dismissed without leave to amend; 20 ///// 21 9 While the SAC is ambiguous, plaintiff Stanford Vina appears to assert its Claim 12 seeking 22 declaratory relief against both defendant Bonham and the California Department of Fish and 23 Wildlife. Defendants move to dismiss any claims asserted against the Department on the grounds that the court previously granted defendants’ motion to dismiss all claims asserted against the 24 Department without leave to amend. (Doc. No. 63-1 at 17.) The Department was then terminated as a named defendant in this suit pursuant to the Prior Order. (Doc. No. 61 at 38.) Plaintiffs 25 argue in opposition that they did not assert any claims against the Department in their SAC (Doc. No. 66 at 26), though the court notes that plaintiffs at one point refer to “CDFW Defendants” in 26 their opposition brief (see id. at 9). In any event, defendants’ motion to dismiss all claims 27 brought against the Department will be granted. 28 1 c. Plaintiffs’ claim for declaratory relief asserted against defendants Ekdahl, 2 Sobeck, Esquivel, D’Adamo, Maguire, Firestone, and Morgan, seeking a 3 court order declaring that their adoption and implementation of the 4 Emergency Regulations and Curtailment Orders are unlawful takings and 5 violated plaintiffs’ procedural due process rights, is dismissed without 6 leave to amend; 7 d. Plaintiffs’ claim for declaratory relief against defendant Bonham seeking a 8 court order declaring that defendant Bonham engaged in an unlawful 9 taking is dismissed without leave to amend; 10 e. Defendants’ motion to dismiss plaintiffs’ Endangered Species Act claim 11 asserted against defendants Ekdahl, Sobeck, Esquivel, D’Adamo, Maguire, 12 Firestone, and Morgan is denied; 13 f. All of plaintiffs’ claims asserted against the California Department of Fish 14 and Wildlife are dismissed without leave to amend; 15 3. Within fourteen (14) days of the date of entry of this order, all parties shall submit 16 a joint status report that includes the Rule 26(f) discovery plan and addresses the 17 following matters: (1) a brief summary of the claims and legal theories under 18 which recovery is sought or liability is denied; (2) status of service upon all 19 defendants and cross-defendants; (3) possible joinder of additional parties; 20 (4) contemplated amendments to the pleadings; (5) the statutory bases for 21 jurisdiction and venue; (6) contemplated motions and a proposed date by which all 22 non-discovery motions shall be heard; (7) methods to avoid cumulative evidence, 23 and anticipated limitations on the use of testimony under Federal Rule of 24 Evidence 702; (8) a proposed date for final pretrial conference; (9) a proposed date 25 for trial, estimated number of days of trial, and whether any party has demanded a 26 jury; (10) appropriateness of special procedures such as reference to a special 27 matter or agreement to try the matter before a magistrate judge; (11) proposed 28 modification of pretrial procedures due to the case’s simplicity or complexity; 1 (12) whether the case is related to any other pending in this district; and 2 (13) optimal timing and method for settlement discussions. The joint status report 3 shall also address the scheduling of discovery, including: (1) any proposed 4 changes in the timing, form, or requirement for disclosures under Rule 26(a), 5 including a statement as to when disclosures under Rule 26(a)(1) were made or 6 will be made, and whether further discovery conferences should be held; (2) the 7 subjects on which discovery may be needed and when it should be completed; 8 (3) any proposed changes to the limits on discovery imposed under the Civil 9 Rules; (4) the timing of the disclosure of expert witnesses and information 10 required by Rule 26(a)(2); and (5) proposed dates for discovery cut-off. All 11 named parties shall participate in the preparation and completion of the joint status 12 report; 13 4. The court sets this case for a status conference regarding scheduling on July 2, 14 2024 at 1:30PM before Judge Drozd, to be held by Zoom only. Parties will 15 receive a Zoom ID number and password for the conference by email from Judge 16 Drozd’s Courtroom Deputy Pete Buzo (PBuzo @caed.uscourts.gov); 17 5. Defendants shall file an answer responding to the claims remaining in plaintiffs’ 18 second amended complaint no later than twenty-one (21) days after the date of 19 entry of this order. 20 IT IS SO ORDERED. | Dated: _May 20, 2024 Dal A. 2, axel 22 DALE A. DROZD 3 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 21