United States District Court, S.D. California
CYNTHIA KENDRICK, individually and as successor in interest to her now deceased husband, GARY KENDRICK, Plaintiff,
COUNTY OF SAN DIEGO, SAN DIEGO COUNTY SHERIFF'S DEPARTMENT, San Diego Sheriff WILLIAM GORE, San Diego Sheriff's Deputy STEVEN BLOCK, and DOES 1 through 50, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
FILE A SECOND AMENDED COMPLAINT [Dkt. No. 53]
GONZALO P. CURIEL United States District Judge
8, 2017, Plaintiff Cynthia Kendrick filed a motion for leave
to file a Second Amended Complaint to name eight additional
defendants and remove four causes of action. (Dkt. No. 53.)
Defendants filed an opposition. (Dkt. No. 56.) Plaintiff then
filed a reply in support of her motion. (Dkt. No. 58.) For
the following reasons, the Court GRANTS Plaintiff's
motion for leave to file a Second Amended Complaint.
November 11, 2015, Plaintiff Cynthia Kendrick
(“Plaintiff” or “Cynthia”) filed a
Complaint against Defendants County of San Diego, Sheriff
William Gore, Sheriff's Deputy Steven Block, and DOES 1
through 50. (Dkt. No. 1, Compl.) A First Amended Complaint
(“FAC”) was filed on April 26, 2016 naming
Sheriff's Detective Matthew Mays as an additional
defendant. (Dkt. No. 16, FAC.) According to the FAC, on March
27, 2015, Plaintiff's husband Gary Kendrick
(“Gary”), who was struggling with depression, was
attempting to kill himself with a shot gun. (Id.
¶¶ 38-39.) Cynthia dialed 911 but hung up before
speaking to anyone. (Id. ¶ 38.) She then ran
outside and told a neighbor, Ryan Ward, that Gary was
attempting to kill himself. (Id. ¶ 39.) At that
time, Cynthia noticed that the cops had arrived.
(Id.) Ward told the officer that arrived at the
house that Gary had a shotgun and was trying to kill himself.
(Id. ¶ 40.) Gary then came out of the house
holding a vodka bottle in one hand, and a shotgun by the
barrel outstretched in his other hand. (Id. ¶
41.) Gary shouted, “Bring it on, mother fuckers!”
while keeping his arms outstretched. (Id.) One
officer told Gary to drop the weapon while Defendant Deputy
Steven Block fired two shots at Gary, and after Gary dropped
to the ground, Block fired two more shots that eventually
killed him. (Id. ¶ 42.)
watching her husband die, Cynthia attempted to go to him but
the deputies pulled her away and placed her in a locked
police vehicle with the windows up despite her cries to be
released to get air. (Id. ¶ 47.) She was then
taken to the police station to give a statement from 9:30
a.m. to 4:30 p.m. against her will. (Id. ¶ 48.)
Upon returning home, Plaintiff had to wait outside for nearly
six hours, because a search warrant had been executed, and
officers were searching her house. (Id. ¶ 49.)
She alleges that the search warrant was obtained without
probable cause. (Id. ¶¶ 50-59.)
behalf of her husband, Plaintiff is bringing causes of action
for (1) excessive force under the Fourth Amendment; (2)
denial of medical care under the Fourth Amendment; (3)
Monell liability; (4) battery; (5) violations of
the Bane Act, Cal. Civ. Code section 52.1; (6) violations of
the Americans with Disabilities Act, 42 U.S.C. § 12132;
(7) violations of the Unruh Civil Rights Act, California
Civil Code sections 51, 51.7; (8) negligence; and (9)
negligent hiring, retention, and supervision. (Dkt. No. 16,
FAC ¶¶ 15-21.) In her own capacity, Plaintiff
alleges causes of action for (10) wrongful death; (11)
violation of substantive due process; (12) intentional
infliction of emotional distress; (13) unreasonable seizure
under the Fourth Amendment; and (14) unreasonable search
under the Fourth Amendment. (Id. ¶¶
5, 2016, the Court issued a Scheduling Order which set the
deadline to seek leave to amend the complaint on July 5,
2016. (Dkt. No. 19 at ¶ 1.) Plaintiff filed the instant
motion for leave to file a Second Amended Complaint on May 8,
2017. (Dkt. No. 53.) Plaintiff seeks to name as defendants
the eight police personnel who were involved in the unlawful
detention of Plaintiff and unlawful search of her home. (Dkt.
No. 53-2, McBride Decl. ¶¶ 9-10.) She also seeks to
remove the causes of action for denial of medical care under
the Fourth Amendment, violations of the Americans with
Disabilities Act, violations of the Unruh Civil Rights Act,
and intentional infliction of emotional distress. Fact
discovery closed on April 10, 2017 and the expert discovery
deadline of May 26, 2017 was vacated pending a decision on
the motion quash by the Magistrate Judge. (Dkt. Nos. 40,
Federal Rule of Civil Procedure 16
Rule of Civil Procedure (“Rule”) 15(a) provides
that leave to amend shall be freely given when justice so
requires and the standard is applied liberally. Fed.R.Civ.P.
15(a). However, once a district court has established a
deadline for amended pleadings, and that deadline has passed,
Rule 16 applies. Coleman v. Quaker Oats Co., 232
F.3d 1271, 1294 (9th Cir. 2000); Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607-608 (9th Cir.
1992). Rule 16 provides that a pretrial scheduling order can
only be modified “upon a showing of good cause.”
Fed.R.Civ.P. 16(b). “Good cause” focuses on the
diligence of the party seeking an amendment.
Johnson, 975 F.2d at 609. The pretrial schedule may
be modified “if it cannot reasonably be met despite the
diligence of the party seeking the extension.”
Id. In general, the focus of the diligence inquiry
is on the time between the moving party's discovery of
new facts and its asking leave of the court to file an
amended pleading. See Zivkovic v. S. Cal. Edison
Corp., 302 F.3d 1080, 1087-88 (9th Cir. 2002). Prejudice
to the non-moving party, though not required under FRCP
16(b), can supply additional reasons to deny a motion.
Coleman, 232 F.3d at 1295. The Ninth Circuit noted
that “[c]arelessness is not compatible with a finding
of diligence and offers no reason for a grant of
relief.” Id.; see Sugita v. Parker,
13cv118-AWI-MJS(PC), 2015 WL 5522078, at *2 (E.D. Cal. Sept.
16, 2015) (counsel's carelessness or inadvertence fails
to establish “good cause”). Rule 16's good
cause standard is more stringent that the liberal amendment
standard under Rule 15. AmerisourceBergen Corp. v.
Dialysist W., Inc., 465 F.3d 946, 952 (9th Cir. 2006).
argue Plaintiff cannot demonstrate good cause because they
produced all patrol and Homicide Division investigative
reports on July 25, 2016 that identify all eight individuals and
their roles in the incident, yet she did not file a motion
for leave to name these defendants until May 8, 2017. In
response, Plaintiff explains that, although she received the
reports and was aware of the eight individuals early in the
litigation, she was also aware of all the other Sheriff's
Department personnel, over 70 individuals, who were involved
with the incident. It was not until she took the depositions
of fifteen Sheriff's Department detectives, deputies, and
other personnel in March and April 2017 that she specifically
learned the identity of the individuals that detained her and
those that were involved in the illegal search of her home.
where the plaintiff had prior knowledge of the necessary
facts or theories to seek leave to amend, the district court
may consider the “rights of the parties, the ends of
justice, and judicial economy” when deciding whether
Rule 16's good cause standard has been met. United
States v. Dang, 488 F.3d 1135, 1143 (9th Cir. 2007).
“Rule 16 was not intended to function as an inflexible
straightjacket on the conduct of litigation . . . instead, it
was intended to insure the efficient resolution of cases and,
most importantly, minimize prejudicial surprise.”
Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343
F.3d 669, 684 (3d Cir. 2003) (quoting Lamborn v.
Dittmer, 873 F.2d 522, 527 (2d Cir. 1989)).
courts have used the principles in Dang, focusing on
the “rights of the parties, the ends of justice, and
judicial economy” to apply a more flexible standard.
See In re Charles Schwab Corp. Sec. Litig., No. C
08-01510 WHA, 2009 WL 3429742, at *3 (N.D. Cal Oct. 22, 2009)
(granting leave to add additional claims even though there
was an eight month delay because the claims were in the same
transaction or occurrence, plaintiffs were better able to add
these claims after discovery, discovery would not need to be
reopened, the defendant had no claims of prejudice, and it
was not apparent that this would affect future litigation);
Crime, Justice & Am., Inc. v. Jones, No.
2:08-cv-00394-GEB-EFB, 2013 WL 142084, at *1 (E.D. Cal. Jan.
11, 2013) (finding good cause to allow leave to amend when
the plaintiffs' delay in filing leave to amend was due to
the defendant's failure to turn over important
information until right before summary judgement motions were
filed). One district court held that plaintiffs were
reasonably diligent when they did not seek leave to amend the
complaint until after reviewing the internal affairs file to
determine which deputy was involved even though they had a
list of the individuals involved in the incident. See
Ceballos v. Contra Costa Cty., No. C 13-04584 LB, 2014
WL 2582541, at *3 (N.D. Cal. June 9, 2014) (finding good
cause even though the plaintiff had information about the
names of the deputies in a letter, it did not identify which
deputies “entered his cell or give any description of
their actions” and Plaintiff's counsel repeatedly
stated his intent to seek leave to amend to defense counsel).
April 26, 2016, pursuant to a joint motion, Plaintiff filed a
First Amended Complaint adding Detective Matthew Mays as a
defendant after receiving a copy of his search warrant. (Dkt.
No. 16.) On July 25, 2016, defense counsel provided Plaintiff
with all reports, including patrol and Homicide Division
investigative reports, concerning the incident. (Dkt. No.
56-1, Chapin Decl. ¶ 2.) Discovery issues arose in
August 2016 that were subject to a motion to compel. (Dkt.
from September 2016 to February 2017, discovery on this case
was essentially placed on hold. On September 8, 2016, a
Notice of Change of Attorney was filed by Defendants. (Dkt.
No. 26.) On October 11, 2016, according to a joint motion
filed by the parties, it indicated a new attorney to replace
prior defense counsel would not start until October 19, 2016
and that defense counsel would not be available during the
last week in October. (Dkt. No. 34.) Subsequently, on
November 8, 2016, the parties filed a status report and a
joint motion to modify the case management schedule. (Dkt.
Nos. 38, 39.) The parties informed the Court that certain
issues required an extension of the dates in the case
management order. They included the unexpected retirement of
the original Deputy County Counsel representing Defendants,
the unavailability of the current Deputy County Counsel
representing Defendants from December 2016 to early February
2017 because of two jury trials, and Plaintiff's need to
amend the complaint to add additional defendants whose
identities were only recently ascertained. (Dkt. Nos. 38,
39.) Both parties asserted that they had been diligent in
pursuing discovery and both parties acknowledged that in
civil rights cases, the parties do not learn the identity of
the majority of the individuals involved until after written
discovery is complete. (Dkt. No. 38 at 2, 5-6.) The status
report noted that all additional individuals that should be
named as defendants and individuals that should be deposed
have been identified; however, due to defense counsel's
unavailability, it was understood that depositions would ...