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Kendrick v. County of San Diego

United States District Court, S.D. California

June 22, 2017

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.


          HON. GONZALO P. CURIEL United States District Judge

         On May 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.


         On 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.)

         After 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.)

         On 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[1] 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. ¶¶ 22-25.)

         On May 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.[2] (Dkt. Nos. 40, 41, 47.)


         A. Federal Rule of Civil Procedure 16

         Federal 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).

         I. Good Cause

         Defendants argue Plaintiff cannot demonstrate good cause because they produced all patrol and Homicide Division investigative reports on July 25, 2016[3] 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.

         Even 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)).

         Districts 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).

         On 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. No. 23.)

         Then 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[4].) 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 ...

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