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Johnson v. Executive Protective Agency K9

September 28, 2009

BESSIE JOHNSON, CHARLIE JOHNSON, AS SURVIVING HEIRS OF DARRYL JOHNSON, DECEASED, PLAINTIFFS,
v.
EXECUTIVE PROTECTIVE AGENCY K9 & INVESTIGATIVE SERVICES INC., FRANKLIN R. WHITELEY, PARK CREST APARTMENTS, CITY OF SAN DIEGO, SAN DIEGO POLICE DEPARTMENT, AND DOES 6-100, AS MOOT. INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: (1) GRANTING PLAINTIFFS' MOTION FOR LEAVE TO AMEND; and (2) DISMISSING DEFENDANTS' MOTIONS TO DISMISS [DOC. NOS. 63, 75] AND MOTION FOR SUMMARY JUDGMENT [DOC. NO. 77]

Presently before this Court is Plaintiffs Bessie and Charlie Johnson's ("Plaintiffs") motion for leave file a second amended complaint. [Doc. No. 86.] Having reviewed the motion, both oppositions filed by Defendants in this case [Doc. Nos. 92, 93], and all supporting documentation, this Court GRANTS Plaintiffs' motion to file an amended complaint.

Background

Plaintiffs allege that on or about July 17, 2006, decedent Darryl Johnson ("Decedent") was riding his bicycle when he was attacked by a security guard who was working for Defendants Executive Protective Agency K-9 & Investigative Services, Inc. ("Executive"), Park Crest Properties, and South Crest Apartments. (First Am. Compl. ¶¶ 17-18.) Plaintiffs allege that unnamed police officers employed by Defendants City of San Diego ("City") and the San Diego Police Department ("SDPD") also attacked and beat Decedent in an apparent case of mistaken identity. (Id. ¶ 19.) Plaintiffs allege that Decedent was repeatedly struck in the head and body and choked by the security guard and police officers. (Id. ¶ 20.) Plaintiffs allege that Decedent thereafter "suffered acute respiratory failure and brain damage, which directly and proximately caused his death on July 23, 2006." (Id. ¶ 22.)

On October 2006, Plaintiffs presented the City of San Diego with a claim for injuries and death of their son. In December 2006, the City of San Diego rejected the claim.

On March 28, 2007, Plaintiffs filed their original complaint against Executive; Franklin R. Whiteley; Park Crest Apartments; City of San Diego; San Diego Police Department; and Does 6-100. [Doc. No. 1.] The original Complaint alleged Eighth and Fourteenth Amendment violations by the City of San Diego and the San Diego Police Department, as well as negligence against all defendants. [Id.]

On October 3, 2007, Plaintiffs filed a first amended complaint. [Doc. No. 29.] The first amended complaint added South Crest Apartments as a new defendant. Additionally, it alleges two causes of action against the City of San Diego and San Diego Police Department for damages under 42 U.S.C. § 1983, a third cause of action against unnamed San Diego Police Officers, San Diego Police Department and the City of San Diego under the California Tort Claims Act, and a fourth cause of action for common law negligence against all defendants. [Id.]

Since Plaintiffs initiated this suit, they have experienced many changes in representation. Plaintiffs were first represented by John Victor Bell of the Pacific Law Center; on April 17, 2007, Mr. Bell filed Notice that Giles de Sureval Townsend from the same firm would handle the case. [Doc. No. 3.] Later that year, Plaintiffs filed a Motion to Substitute Attorney after Pacific Law Center closed its civil practice; Robert Hamparyan of Panish Hoey, LLP became Plaintiffs' attorney of record. [Doc. Nos. 17, 36.] On March 6, 2008, Robert Hamparyan filed a Motion to Withdraw as Counsel. [Doc. No. 47.] After holding a hearing, the Court ordered Mr. Hamparyan relieved. [Doc. No. 51.] Plaintiffs were without representation until January 23, 2009, when the Court granted Plaintiffs' request to substitute Richard deSaulles as counsel of record. [Doc. No. 67.]

On December 18, 2008, Defendants San Diego Police Department and the City of San Diego filed a Motion to Dismiss, or in the alternative, Motion for Partial Summary Judgment as to the second cause of action. [Doc. No. 63.] The Court reset the hearing date and ordered rebriefing of the Motion after Mr. DeSaulles became Plaintiffs' counsel. [Doc. No. 69.] On May 7, 2009, Defendants San Diego Police Department and City of San Diego filed a separate Motion to Dismiss, or in the alternative, Motion for Partial Summary Judgment as to the first cause of action. [Doc. No. 75.] On May 18, 2009, Defendants Executive and Franklin Whiteley filed an Amended Motion for Summary Judgment. [Doc. No. 77.] On June 15, 2009, Plaintiffs filed the instant Motion for Leave to File Second Amended Complaint. [Doc. No. 86.] Defendants San Diego Police Department and City of San Diego filed an Opposition to the Motion to Amend [doc. no. 93, "City Opposition"], as did Defendants Executive and Franklin Whiteley [doc. no. 92, "Executive Opposition"].

Legal Standard

A party may amend a pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15(a). Once a responsive pleading has been served, however, a party may amend the pleading only by leave of court or by written consent of the adverse party. Id.

Leave to amend is freely given when justice so requires. Fed. R. Civ. P. 15(a)(2); Morris v. U.S. Dist. Court, 363 F.3d 891, 894 (9th Cir. 2004). Moreover, this policy is "to be applied with extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). "The purpose of the pleadings is to facilitate a proper decision on the merits and to not erect formal and burdensome impediments in the litigation process." Howey v. United , 481 F.2d 1187, 1190 (9th Cir. 1973).

However, the denial of a motion for leave to amend is within the discretion of the district court and will be reversed only upon abuse. Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725 (9th Cir. 2000). A district court may deny leave to amend based on "the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). In particular, the Ninth Circuit has held that prejudice to the opposing party carries the ...


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