The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO THIRD AMENDED COMPLAINT AMEND AND SUPPLEMENT [Doc. No. 40]
Presently before the Court is a motion by Plaintiffs Floyd L. Morrow and Marlene Morrow ("Plaintiffs") for leave to file a fourth amended complaint ("FAC"). [Doc. No. 40.] Plaintiffs seek to add a new claim for intentional infliction of emotional distress ("IIED") and to revise their existing claims in light of the Court's January 11, 2012 Order granting in part and denying in part Defendant City of San Diego ("City")'s motion to dismiss Plaintiffs' third amended complaint. The City opposes Plaintiffs' present motion. For the reasons given below, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion for leave to amend and to supplement.
Plaintiffs filed their original complaint in state court on March 28, 2011 against Defendants City of San Diego, Mandel E. Himelstein, and Does 1-100. [Doc. No. 1-1.] After the City demurred to the complaint, Plaintiffs filed their first amended complaint on June 23, 2011. [Doc. No. 1-14.] On July 1, 2011, Defendants removed the action to this Court on the basis of federal question jurisdiction and supplemental jurisdiction. [Doc. No. 1, Notice of Removal.] Plaintiffs filed their second amended complaint on July 27, 2011. [Doc. No. 7.] On October 7, 2011, the Court dismissed Defendant Mandel E. Himelstein from the action. [Doc. No. 19.] On October 18, 2011, the Court granted the City's motion to dismiss Plaintiffs' second amended complaint and granted Plaintiffs leave to file a third amended complaint. [Doc. No. 20.] Plaintiffs filed their third amended complaint ("TAC") against the City and Does 1-100 on November 4, 2011, alleging seven causes of action. [Doc. No. 22.] The City moved to dismiss the first six causes of action in the TAC on November 18, 2011. [Doc. No. 24.] In its January 11, 2012 Order, the Court granted in part and denied in part the City's motion. [Doc. No. 30.]
By the present motion, Plaintiffs seek leave to amend and to supplement their TAC, in order to allege a new claim for IIED and to amend their existing claims, including the relief sought. [Doc. No. 40; Doc. No. 40-1.] Plaintiffs have attached their proposed FAC to the motion. [Doc. No. 40-2.] In this FAC, Plaintiffs allege causes of action for: (1) waste of public funds pursuant to California Code of Civil Procedure §§ 526a and 1060; (2) violations of Plaintiffs' constitutional rights pursuant to 42 U.S.C. § 1983; (3) writ of mandate pursuant to California Code of Civil Procedure § 1085; (4) writ of prohibition pursuant to California Code of Civil Procedure § 1102; (5) writ of administrative mandamus pursuant to California Code of Civil Procedure § 1094.5; and (6) intentional infliction of emotional distress. [Id.] The City opposes Plaintiffs' motion, arguing the addition of a new cause of action for IIED would be futile. [Doc. No. 43.]
I. Legal Standards for a Motion to Amend or to Supplement
Plaintiffs bring the present motion to amend and to supplement pursuant to both Rule 15(a) and Rule 15(d). Rule 15(a) addresses matters occurring up to the time Plaintiffs filed the original complaint and Rule 15(d) addresses matters occurring thereafter. See Gordon v. North Am. Co. for Life & Health, 2000 U.S. Dist. LEXIS 15799, at *12 (S.D. Cal. Sept. 14, 2000). Because the same standard governs consideration of motions to amend or to supplement, it is unnecessary here to distinguish when Plaintiffs seek to amend or to supplement. See Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir. 1996); Martin v. Naval Crim. Investigative Serv., 2012 U.S. Dist. LEXIS 62208, at *9 (S.D. Cal. May 3, 2012).
Under Federal Rule of Civil Procedure 15(a)(2), a party "may amend its pleading only with the opposing party's written consent or the court's leave" once the time period for amendment as a matter of course has passed. Courts should "freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). Courts also "may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." FED. R. CIV. P. 15(d). The Ninth Circuit has stated that leave to amend should be granted with "extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Despite this policy favoring amendment, "leave to amend is not to be granted automatically." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). The grant or denial of leave to amend is within the "sound discretion" of the Court. Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1331 (9th Cir. 1996).
The Court weighs five factors in ruling on a motion for leave to amend: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of the amendment; and (5) whether the movant has previously amended its pleadings. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis, 371 U.S. 178, 182 (1962). Of these factors, "consideration of prejudice to the opposing party . . . carries the greatest weight." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2004). However, "[f]utility can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
II. Plaintiffs' New Claim for Intentional Infliction of Emotional Distress
In their proposed FAC, Plaintiffs allege that the City's conduct toward them constitutes intentional infliction of emotional distress. [Doc. No. 40-2, FAC ¶¶ 138-142.] Specifically, Plaintiffs claim that City employees have intentionally or recklessly caused Plaintiffs "severe emotional distress" by "traipsing around" Plaintiffs' home while investigating allegedly "nonexistent code violations." [Id.] According to Plaintiffs, Defendants have "engaged in a pattern of intentional and wrongful conduct" by threatening Plaintiffs with prosecution, investigating them without cause, and invading their privacy. [Id.] Plaintiffs give two examples of such conduct in the FAC: (1) once*fn1 when City employees Eric Picou and Justino Rochin were at Plaintiffs' home "looking for new violations to report"; and (2) another occasion on March 5, 2012 when Eric Picou "came searching for new violations again . . . and taking photographs." [Id. ¶¶ 61; 138-142.]
In opposition, the City argues the Court should deny Plaintiffs leave to amend their complaint because the proposed addition of a new claim for IIED would be futile. [Doc. No. 43.] According to the City, the new claim would be futile because the City and its employees are immune from liability for IIED as a matter of California law.*fn2 [Id. at 2.] ...