Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Estate of Victorianne v. County of San Diego

United States District Court, S.D. California

June 1, 2015

THE ESTATE OF BERNARD VICTORIANNE by and through its successor-in-interest ZELDA VICTORIANNE, BERNARD VICTORIANNE II, and ZELDA VICTORIANNE, Plaintiffs,
v.
COUNTY OF SAN DIEGO, WILLIAM GORE, and DOES 1-50, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the Plaintiffs' Ex Parte Motion to Amend the Complaint (ECF No. 72), the Plaintiffs' Ex Parte Application to File Second Amended Complaint Under Seal (ECF No. 73), Defendants' Motion to Dismiss and Strike Parts of the FAC pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f) (ECF No. 42), and Plaintiffs' Ex Parte Motion to Hold Defendants' Motion to Dismiss and Strike Parts of the FAC in Abeyance (ECF No. 50).

I. Background

On September 11, 2014, Plaintiffs, The Estate of Bernard Victorianne by and through its successor-in-interest Zelda Victorianne, Bernard Victorianne II, and Zelda Victorianne initiated this action by filing the Complaint against Defendants County of San Diego and William Gore. (ECF No. 1). Plaintiffs' Complaint asserts the following claims for relief: (1) deliberate indifference to serious medical needs, 42 U.S.C. section 1983; (2) wrongful death, 42 U.S.C. section 1983; (3) right of association, 42 U.S.C. section 1983; (4) failure to properly train, 42 U.S.C. section 1983; (5) failure to properly supervise and discipline, 42 U.S.C. section 1983; (6) failure to properly investigate, 42 U.S.C. section 1983; and (7) Monell municipal liability civil rights action, 42 U.S.C. section 1983. (ECF No.1).

On February 9, 2015, Plaintiffs filed the First Amended Complaint ("FAC"). (ECF No. 37). Plaintiffs' FAC asserts three additional claims: (1) wrongful death California Code of Civil Procedure 377.60 et seq.; (2) negligence; and (3) violation of California Civil Rights section 52.1.

On February 23, 2015, Defendants filed the Motion to Dismiss and Strike Parts of the FAC pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f). (ECF No. 42). On March 10, 2015, Plaintiffs filed a response in opposition of Defendants' motion. (ECF No. 53). On March 16, 2015, Defendants filed a reply. (ECF No. 55).

On March 5, 2015, Plaintiffs filed the Ex Parte Motion to Hold Defendants' Motion to Dismiss and Strike Parts of the FAC in Abeyance. (ECF No. 50). On March 27, 2015, Defendants filed a response in opposition to Plaintiffs' motion. (ECF No. 61).

On April 30, 2015, Plaintiffs filed a Second Ex Parte Motion to Amend the Scheduling Order requesting a deadline of May 11, 2015 to file a motion for leave to file a second amended complaint. (ECF No. 68). On May 6, 2015, Defendants filed an opposition to the motion. (ECF No. 70). On May 8, 2015, United States Magistrate Judge Barbara L. Major issued an order stating that "[h]ere, the Court finds good cause to GRANT Plaintiffs' motion. Any motion to join other parties, to amend the pleadings, or to file additional pleadings shall be filed on May 11, 2015. All remaining dates and deadlines set forth in the Court's December 17, 2014 Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings [ECF No. 31] are hereby VACATED pending a ruling on the pending motion to dismiss [ECF No. 42] and soon-to-be-file motion to amend the pleadings." (ECF No. 71 at 2-3).

On May 11, 2015, Plaintiffs filed the Ex Parte Motion to Amend the Complaint along with an attached proposed second amended complaint. (ECF No. 72). On the same day, Plaintiffs filed the Ex Parte Application to File Second Amended Complaint Under Seal. (ECF No. 73). On May 20, 2015, Defendants filed a response opposing Plaintiff's Ex Parte Motion to Amend the Complaint. On May 22, 2015, Defendants filed a Conditional Non-Opposition to Plaintiffs' Ex Parte Motion to File Second Amended Complaint Under Seal. (ECF No. 79). On May 22, 2015, Plaintiffs' filed a reply in support of the Ex Parte Motion to Amend the Complaint. (ECF No. 80).

II. DISCUSSION

A. Ex Parte Motion to Amend the Complaint (ECF No. 72)

Defendants contend that Plaintiffs' motion causes confusion and prejudice. Defendants contend that the "piecemeal approach Plaintiffs are using in this matter with multiple complaint submissions is potentially prejudicial to all defendants, current and prospective, who have the right to challenge a complaint directed against them, to formulate their respective defenses and to fully participate in discovery that all parties may conduct." (ECF No. 77 at 4).

Plaintiffs contend that there is no prejudice and no delay that can result from the filing of a second amended complaint. Plaintiffs contend that the denial of the filing of the amended complaint would result in substantial harm to Plaintiffs. Plaintiffs contend that because Defendants withheld critical information regarding Bernard's death, Plaintiffs did not become aware of the exact nature of the medical staff's misconduct until they received discovery.

Federal Rule of Civil Procedure 15 provides: "A party may amend its pleading once as a matter of course...." Fed.R.Civ.P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's consent or the courts leave." Fed.R.Civ.P. 15(a)(2). Federal Rule of Civil Procedure 15 mandates that leave to amend "be freely given when justice so requires." Fed.R.Civ.P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In determining whether to allow an amendment, a court considers whether there is "undue delay, " "bad faith, " "undue prejudice to the opposing party, " or "futility of amendment. " Foman v. Davis, 371 U.S. 178, 182 (1962). "Not all of the [ Foman ] factors merit equal weight.... [I]t is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citation omitted). "The party opposing amendment bears the burden of showing prejudice." ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.