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Akey v. Placer County

United States District Court, E.D. California

May 8, 2017

RACHAEL AKEY, et al., Plaintiffs,
PLACER COUNTY, et al., Defendants.


         This civil rights action is before the court on plaintiffs' four opposed motions. First, plaintiffs move to continue the discovery cut-off.[1] Second, plaintiffs move to amend their Monell claims[2] against defendant Placer County.[3] Third, plaintiffs move to amend their negligent infliction of emotional distress (“NIED”) and intentional infliction of emotional distress (“IIED”) claims.[4] Finally, plaintiffs move for reconsideration of two of the magistrate judge's rulings.[5]

         The court held a hearing regarding all four motions on November 4, 2016. Patrick Dwyer appeared for plaintiffs; Clayton Cook appeared for defendants. ECF No. 91. For the following reasons, the court GRANTS the motion to continue, GRANTS the motion for leave to amend the Monell claims, DENIES the motion for leave to amend the NIED/IIED claims, and DENIES the motion for reconsideration.

          I. BACKGROUND

         A. Factual Background

         This case involves the custody of plaintiff N.D., a minor who was three years old at the time period relevant to the operative complaint. TAC ¶ 1. N.D.'s mother is plaintiff Rachael Akey[6] and N.D.'s father is Cameron Dupree, who is not a party to this case. Id. ¶¶ 2-4. Akey and Dupree were never married and currently live apart. Id. ¶¶ 3-4. At the time of the acts alleged in the complaint, Akey and Dupree had recently concluded a lengthy custody dispute in Placer County Superior Court. Id. ¶ 11. Under the resulting custody order, N.D. was to live with Akey, and Dupree was to have regular unsupervised visits with N.D. from Tuesday morning to Wednesday morning each week and on alternating weekends. Id. After the order went into effect, there was continuing rancor between the parents, id.; in the days leading up to the incident underlying the complaint, Akey requested a court-ordered drug test of Dupree on September 6, 2013, id. ¶ 16, and Dupree requested a drug test of Akey on September 7, 2013, id. ¶ 17.

         On the morning of Thursday, September 12, 2013, Akey and her husband, plaintiff Ryan Cornacchioli, took N.D. to school, expecting to pick him up that afternoon. Id. ¶ 19. Unbeknownst to Akey, defendant Placer County Family and Children Services (“FCS”) had recently received a report from N.D.'s school. Id. ¶ 20. According to the report, N.D. had said that Cornacchioli choked and threatened N.D. Id. Defendant social worker Gloria Sutton, an FCS employee, began an investigation on September 12, 2013 by going to N.D.'s school and speaking with N.D. and N.D.'s teacher. Id. ¶ 21. Sutton then spoke with Dupree on the phone, who confirmed that N.D. had mentioned the choking on September 10. Id. ¶ 21. On this basis, Sutton, with the approval of defendant social worker Scott Myers, made the decision to give full custody to Dupree. Id. ¶ 22. At Sutton's request, Dupree picked up N.D. from school on September 12. Id.

         Also on September 12, 2013, Sutton called Akey to discuss the allegations of Cornacchioli's abuse of N.D. Id. ¶ 23. Because Akey put her phone on speaker mode, Cornacchioli and Clayton heard the entire conversation, which included sharing allegations that Cornacchioli had strangled and threatened to kill N.D. Id. ¶¶ 23-24. In response, Akey told Sutton that Cornacchioli was out of town on military duty prior to September 10 and that N.D. had not come back into their custody until after school on September 11, and thus the allegations could not possibly be true. Id. ¶ 24. Undeterred, Sutton explained that Dupree retained full custody during the pending FCS investigation. Id. Sutton further pressured Akey to consent to an FCS order giving immediate and full custody to Dupree; Akey declined. Id. ¶ 25. In a follow-up conversation with Sutton's supervisor, Myers similarly pressured Akey to consent to give custody to Dupree; Akey again declined. Id. ¶ 26. Although Myers explained the investigation would be over by September 17 and there would be a reunification plan, id. ¶ 28, N.D. remained in Dupree's sole custody until March 2014, id. ¶ 22.

         Plaintiffs point to a series of alleged violations related to these incidents, including FCS's improper removal of N.D., id. ¶¶ 15-28, and FCS's wrongful reporting of Cornacchioli to the Department of Justice (“DOJ”) Child Abuse Central Index. Id. ¶¶ 29-35. Plaintiffs point to the fact that Cornacchioli was away on military duty at the time of these incidents to show that the allegations against Cornacchioli were demonstrably false and an improper basis for FCS's removal of N.D. and reporting of Cornacchioli. Id. ¶ 24. Plaintiffs allege Sutton and Myers failed to follow proper procedures in their investigation, id. ¶¶ 37-38, failed to make a good faith investigation, id. ¶¶ 39-45, fabricated evidence, id. ¶¶ 46-47, and suppressed exculpatory evidence, id. ¶¶ 48-50.

         B. Procedural Background and Plaintiffs' Claims

         Based on these incidents, plaintiffs filed a Government Tort Claims Act claim against defendants on March 11, 2014. Id. ¶ 36. The claim was rejected by the County of Placer and then by the Judicial Council of California in April 2014. Id.

         Plaintiffs filed the original complaint on October 12, 2014, the first amended complaint on April 10, 2015, the second amended complaint on September 30, 2015, and the operative third amended complaint on April 6, 2016. Compl., ECF No. 1; First Am. Compl. (“FAC”), ECF No. 20; Second Am. Compl. (“SAC”), ECF No. 29; TAC. Plaintiffs filed each of the amended complaints after the court granted defendants' motions to dismiss, at least in part. See Orders, ECF Nos. 18, 26, 37. Defendants answered the operative third amended complaint on May 5, 2016. Am. Answer, ECF No. 45.

         Plaintiffs' third amended complaint includes twenty-six claims, fifteen of which are against defendants under 42 U.S.C. § 1983 on the basis of alleged federal constitutional violations. TAC ¶¶ 51-196. All three plaintiffs assert procedural due process rights under the Fourteenth Amendment against all defendants, while only Akey and N.D. assert a substantive due process right to an unimpaired parent-child relationship under the Fourth and Fourteenth Amendments against all defendants. Id. The federal claims are brought against Placer County based on a theory of municipal liability under Monell. Id. ¶¶ 51-64 (counts 1-2), 109-22 (counts 7-8), 167-74 (count 13).

         Plaintiffs also bring eleven state law claims against defendants on the basis of alleged state constitutional violations. Id. ¶¶ 197-255. Each of the state claims asserts state constitutional violations analogous to the federal claims. Id. The state claims are brought against Placer County under a theory of vicarious liability. Id. ¶¶ 211-16 (count 20), 234-38 (count 23), 251-55 (count 26).

         As noted, plaintiffs move the court to (1) continue the trial date, (2) grant leave to amend their Monell claims, (3) grant leave to amend their NIED/IIED claims, and (4) reconsider two of the magistrate judge's rulings. In the following sections, the court addresses each of plaintiffs' motions in turn.


         A. Procedural Background

         The court issued an initial pretrial scheduling order in March 2015, in which the court set a discovery cut-off of March 7, 2016, and set trial for September 19, 2016. Scheduling Order March 24, 2015, ECF No. 19. Based on the parties' subsequent stipulation, the court found good cause and modified the initial scheduling order, extending discovery until September 30, 2016 and resetting trial for April 3, 2017.[7] Scheduling Order Feb. 10, 2016, ECF No. 36. On September 28, 2016, plaintiffs filed the current motion to continue the trial date. Mot. Continue. Plaintiffs request a 90- to 120-day extension of the discovery period, with trial reset to after August 2017. Defendants oppose the motion, but also agree to continue the trial date if the court grants either of plaintiffs' pending motions to amend the complaint. Opp'n Mot. Continue at 2.

         B. Standard

         The pretrial scheduling order is designed to allow the district court to better manage its calendar and to facilitate the more efficient disposition of cases by settlement or by trial. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). A scheduling order may only be changed with the court's consent and for “good cause.” Fed.R.Civ.P. 16(b)(4). A scheduling order is not “a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985). On the other hand, the “good cause” standard requires less than the “manifest injustice” test used to modify a final pretrial order. See Fed. R. Civ. P. 16(e); see also Fed. R. Civ. P. 16, 1983 Advisory Committee Notes (“Since the scheduling order is entered early in the litigation, this standard seems more appropriate than a ‘manifest injustice' or ‘substantial hardship' test.”). When litigants request changes to a scheduling order, the court's inquiry focuses on their diligent efforts to comply. See Johnson, 975 F.2d at 609. A district court has “broad discretion” to grant or deny a continuance. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985).

         C. Discussion

         1. Initial Matter

         Defendants argue plaintiffs' motion is subject to denial on the simple grounds that it does not include an express Rule 16 request to modify the scheduling order. Opp'n Mot. Continue at 3 (citing Johnson, 975 F.2d at 608-09). Defendants raise this same argument in response to plaintiffs' motion to amend the complaint, discussed below. For the reasons discussed in that section, the court declines to deny plaintiffs' motion to continue on this basis and proceeds to determine whether plaintiffs establish good cause to continue the trial date.

         2. Good Cause

         Plaintiffs base their request to amend the scheduling order on two compelling areas in which they say further discovery is needed. The court finds these arguments persuasive.

         a) Original Case File

         Plaintiffs argue, as of the time of their filing, the original case file from FCS has not been produced in full and they need additional time to follow up on the absence of these essential documents. Mot. Continue at 7. More specifically, plaintiffs have not received a signed copy of the Investigative Narrative, which plaintiffs describe as “the central document in the case” and the key to determining defendants' reasons for substantiating the abuse claim against Akey and Cornacchioli. Id. Plaintiffs also have not received a signed copy of the Structured Decision Making (“SDM”) Risk Assessment Form, a document plaintiffs argue would provide the basis for removing N.D. from plaintiffs. Id. at 7-8; see also Dwyer Decl. Ex. 7, ECF No. 69-1 (unsigned SDM Risk Assessment form).

         Since plaintiffs filed their motion, and after the close of discovery, defendants found and turned over both of these signed documents. Opp'n Mot. Continue at 7. Defendants explain they believed the documents were lost or destroyed until conducting a recent, unrelated search of a county employee's desk; they acknowledge the timing of this production is “unfortunate.” Id. at 7-8. Still, defendants argue plaintiffs received unsigned copies of these documents, identical in all respects but for the missing signatures, more than two years ago and plaintiffs previously could have determined when the documents were signed by sending written discovery or conducting depositions. Id. at 8-9.

         The court finds the relatively recent production to be a compelling reason to continue the discovery period. “[C]ourts often find good cause when the motion to amend the scheduling order is based upon new and pertinent information.” Lyon v. U.S. Immig. & Cust. Enf't, 308 F.R.D. 203, 216 (N.D. Cal. 2015); see, e.g., Defazio v. Hollister, Inc., CIV 04-1358 WBS GGH, 2008 WL 2825045, at *1 (E.D. Cal. July 21, 2008) (finding good cause to amend the complaint because new allegations stemmed from materials recently disclosed through discovery); cf. Johnson, 975 F.2d at 609 (finding no good cause to extend a scheduling order deadline where based on information available to movant throughout the suit). Here, defendants' signatures on these documents speak to their authenticity and completeness, as well as the relative timing in the sequence of events leading to the removal of N.D from Akey. Thus, the fact that plaintiffs did not receive signed versions of these documents until after defendants Sutton and Myers were deposed, and until after the close of the discovery period, forms a strong basis for plaintiffs' motion here.

         b) FCS Logbook

         Plaintiffs argue they need more time to review the Placer County FCS logbook because there exist “conflicting evidence and ‘mysterious' circumstances that need more discovery to resolve.” Id. at 12. More specifically, plaintiffs allege they cannot yet determine whether FCS ever reported plaintiff Cornacchioli to the California Department of Justice's (“DOJ”) Child Abuse Central Index (“CACI”), which is the basis for Cornacchioli's procedural due process claims. Id. at 9-10, 12; TAC ¶¶ 167-96, 239-50. Although defense counsel stated in October 2014 that he believed FCS never reported Cornacchioli, a relevant form-Form 8583- contains a DOJ special report number, which plaintiffs assert would only be created after a case is reported to the DOJ. Id. at 12-13. Defendants' recent depositions confirm that FCS was required to report Cornacchioli to the DOJ and Sutton stated he knew of no other case in which FCS failed to report to the DOJ when so required. Id. at 13-14. Plaintiffs ask for more time to review the FCS logbooks documenting reports to the DOJ as well as time to depose clerical staff responsible for submitting the reports. Id.

         Defendants make two principal arguments in response to plaintiffs' stated reasons for requesting extra time to analyze the FCS logbook. First, defendants implicitly argue plaintiffs' request is moot, because Cornacchioli is no longer listed on the CACI index. Id. at 6. Second, defendants argue they have already shared relevant portions of the FCS logbooks during a recent deposition and the logbook reveals Cornacchioli was not reported by FCS. Id. at 6.

         Again, the court finds plaintiffs' argument the more persuasive. Plaintiffs' allegation that FCS reported Cornacchioli to the DOJ forms the basis of all of Cornacchioli's claims. See TAC (claims 13-15, 24-26). Plaintiffs thus point out that a significant factual question, as recent depositions of Sutton and Myers confirm, has yet to be definitively answered. The Form 8583, which includes a special report number in the box labeled “For DOJ Use Only, ” supports a justifiable inference that Cornacchioli was reported to the DOJ. Dwyer Decl., Ex. 4, ECF No. 69-1. Defendants are incorrect in implying that whether Cornacchioli was ever reported to the DOJ is irrelevant given that he is no longer listed on the DOJ's index. As the third amended complaint makes clear, Cornacchioli is not only asking for injunctive relief in the form of removal from the CACI index, TAC ¶ 174, but he is also asking for damages caused by the loss of earning capacity, reputational harm, and the severe emotional and mental distress all allegedly caused by being reported in the first place. Id. ¶ 172. Whether Cornacchioli was reported to the DOJ, and not just whether he continues to be listed on the CACI index, continues to be a question central to Cornacchioli's claims. The FCS logbook page that defendants produced during a recent deposition may help to answer that question, as defendants argue, but it does not definitely resolve it. Plaintiffs' second argument provides a persuasive basis for granting their motion.

         3. Recent Depositions

         Defendants argue that, even if recent depositions and discovery provide a basis for additional discovery, plaintiffs have not shown why they did not conduct the depositions and discovery sooner. Opp'n Mot. Continue at 3-5. Defendants point to a nine-month window between plaintiffs' initial written discovery and their more recent “flurry” of activity, which included four sets of document requests and eight depositions in the final two months of the original discovery period. Id. at 4.

         Plaintiffs' reply adequately addresses these concerns. See generally Reply Mot. Continue. From the start, plaintiffs intended to focus their discovery only on their Monell claims because the second custody case in Placer County Superior Court had already allowed serving of subpoenas, taking of depositions, and a full trial regarding plaintiffs' other claims here. Id. at 3. Because the court dismissed the Monell claims in plaintiffs' original and first amended complaint, plaintiffs could not proceed with the corresponding Monell discovery until after they filed their second amended complaint in September 2015. Reply Mot. Continue at 4. Defendants impliedly accepted the sufficiency of the Monell claims in plaintiffs' second amended complaint when, in October 2015, they moved to dismiss other claims in the second amended complaint but did not challenge the Monell claims. See generally Mot. Dismiss SAC, ECF No. 30; Reply Mot. Continue at 4. Plaintiffs filed Monell-related discovery later in October 2015, and, after defendants' initial production, plaintiffs moved to compel production of documents related to the County's other investigations. See Mot. Compel, ECF No. 39. The magistrate judge granted in part plaintiffs' motion to compel in May 2016, and required defendants to produce case files from other investigations. Order May 5, 2016, ECF No. 47. Defendants acknowledge “it did take some time” to produce responsive documents, Opp'n Mot. Continue at 4, and plaintiffs assert they did not receive the case files until August 2016. Reply Mot. Continue at 4. It was reasonable for plaintiffs to wait to depose Sutton and Myers, the County employees involved in the investigation in this case, until plaintiffs had more information regarding other County investigations, because plaintiffs' claims are tied to County policies and practices that Sutton and Myers allegedly followed. Plaintiffs' depositions of Sutton and Myers on September 12-13, 2016, and current motion filed on September 28, 2016, were therefore timely.

         D. Conclusion

         For the reasons stated above, plaintiffs' first and second reasons for requesting to amend the scheduling order provide a sufficient basis for finding “good cause” here. The court need not address plaintiffs' other arguments supporting their request.[8] Plaintiffs' motion is GRANTED.

         The parties originally submitted competing positions on modification of the scheduling order. Compare Mot. Continue at 1, 6, with Opp'n Mot. Continue at 2. At the court's instruction, the parties have now submitted a joint statement after hearing to address their positions regarding the appropriate scope of discovery in light of the documents recently produced. Jnt. Statement, ECF No. 92. After considering the parties' positions as to the appropriate scope of additional discovery, the court extends the fact discovery period without limiting the scope beyond the parameters established by the complaint and answer. As a result, the court need not address at this juncture plaintiffs' individual requests for additional discovery.

         The schedule for the case, ECF Nos. 19, 36, is modified as follows: the period for discovery shall be extended to July 31, 2017; disclosure of expert witnesses is due by September 1, 2017 and supplemental disclosure of expert witnesses is due by September 22, 2017; the period for expert discovery shall be completed by September 29, 2017; all dispositive motions shall be heard by November 3, 2017; the Final Pretrial Conference is reset for February 23, 2018 at 10:00 a.m., with the Joint Pretrial ...

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