The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on plaintiff Lorraine Servantez's motion to amend the complaint pursuant to Rule 16*fn1 and Rule 15 of the Federal Rules of Civil Procedure to add a claim under California Government Code § 845.6. Defendants County of Sacramento, Brian Moore, Wayne Kitade, Gregory Sokolov, M.D. and Mark Sussman, LCSW oppose the motion. For the reasons set forth below,*fn2 plaintiff's motion is DENIED.
Plaintiff asserts a wrongful death claim for the suicide of her son, David Trujillo Lopez (hereinafter "Lopez"). (Second Amended Complaint, filed Dec. 13, 2007 ("Compl."), ¶ 3). Lopez was incarcerated in the Sacramento County Main Jail from October 2003 until his death on April 7, 2005. (Compl. ¶ 23). On October 7, 2003, while incarcerated, Lopez was placed on suicide watch and prescribed psychiatric medications. (Compl. ¶ 28). Plaintiff alleges that defendants witnessed Lopez become increasing distraught and depressed on April 6, 2005, but nevertheless placed him in "temporary separation" or solitary confinement. (Compl. ¶¶ 19, 29). While in solitary confinement, Lopez hung himself with a bed sheet. (Compl. ¶ 24).
Plaintiff alleges defendants' negligent supervision, failure to provide Lopez with proper medical and psychiatric attention, and placement of Lopez in solitary confinement directly caused his death. (Compl. ¶¶ 19, 21-31). Plaintiff also alleges that defendants knew or reasonably should have known that Lopez had serious psychiatric and medical needs which raised a danger to his own life and safety. (Compl. ¶ 19).
Plaintiff's second amended complaint asserted claims for negligence, negligent supervision, and violation of civil rights. (Compl. ¶¶ 21-40). The court granted defendants' motion to dismiss plaintiff's negligence claims as barred by the applicable statute of limitation. (Mem. & Order, filed Mar. 12, 2008).
Once the court has entered a pretrial scheduling order pursuant to Rule 16, the standards of Rule 16 rather than Rule 15 govern amendment of the pleadings. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1232-33 (E.D. Cal. 1996).*fn3 Orders entered before the final pretrial conference may be modified only "for good cause." Fed. R. Civ. P. 16(b).
The good cause requirement of Rule 16 primarily considers the diligence of the party seeking the amendment. The pretrial scheduling order can only be modified "if it cannot reasonably be met despite the diligence of the party seeking the extension." Mammoth Recreations, 975 F.2d at 609. When evaluating whether a party was diligent, the Ninth Circuit has determined that "the focus of the inquiry is upon the moving party's reasons for modification. If that party was not diligent, the inquiry should end." Id. at 610; see also Gestetner, 108 F.R.D. at 141.
When the proposed modification is an amendment to the pleadings, the moving party may establish good cause by showing "(1) that [he or she] was diligent in assisting the court in creating a workable Rule 16 order; (2) that [his or her] noncompliance with a rule 16 deadline occurred or will occur, notwithstanding [his or her] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment of the Rule 16 order, once it became apparent that [he or she] could not comply with the order." Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)(citations omitted).
Only after the moving party has demonstrated diligence under Rule 16 does the court apply the standard under Rule 15 to determine whether the amendment was proper. See Mammoth Recreations, 975 F.2d at 608; Eckert Cold Storage, 943 F. Supp. at 1232 n.3. Pursuant to Rule 15(a), "leave [to amend] is to be freely given when justice so requires." "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997).
Plaintiff contends that she has demonstrated good cause to modify the pretrial scheduling order and amend the complaint because the information giving rise to a cause of action for violation of Government Code § 845.6 was only obtained during the deposition of defendant Sokolov, when he confirmed and explained that no one from Jail Psychiatric Services ("JPS") visited Lopez the day before he committed suicide and that he decided it was not necessary for him or anyone from JPS to visit him for the purpose of a mental evaluation. (Ex. H to Decl. of Jose Vergara in Supp. of Mot. for Leave to Amend, filed Jan. 23, 2009, at 2). Defendants contend that plaintiff has not demonstrated the requisite diligence under Rule 16 because she was aware of information giving rise to this claim at least two years before Sokolov's deposition.
California Government Code § 845.6 creates an affirmative duty for public employees "to furnish or obtain medical care for a prisoner in his custody." "Under certain limited conditions, that is, actual or constructive knowledge of a need for immediate medical care, a duty of 'reasonable action to summon' ...