United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO AMEND THE COMPLAINT Re: Dkt.,
ILLSTON United States District Judge
motion for leave to amend the complaint is scheduled for a
hearing on July 3, 2017. Pursuant to Civil Local Rule 7-1(b),
the Court determines that this matter is appropriate for
resolution without oral argument and VACATES the hearing. For
the reasons set forth below, the Court GRANTS IN PART and
DENIES IN PART plaintiffs' motion. Plaintiffs shall file
and serve the amended complaint no later than July 3,
seek to amend the complaint to add four new defendants: Dr.
Elliot Brandwene, Dr. Stewart Lauterbach, TeamHealth, and
Chase Dennis Emergency Medical Group, Inc.
(“Chase”). Plaintiffs state that these physicians
treated plaintiff Cynthia Gutierrez in the emergency room,
and that TeamHealth and Chase had contracts with defendants
to supply the physicians to the hospital. Defendants do not
oppose the addition of new defendants, and accordingly the
Court GRANTS this aspect of plaintiffs' motion.
also seek to amend the complaint to add new causes of action
for reckless neglect and fraud. Plaintiffs assert that
discovery has revealed that medical staff repeatedly
administered Dilaudid, a synthetic heroin, to Cynthia
Gutierrez despite documentation that Cynthia had had adverse
reactions to that medication. The proposed reckless neglect
claim is based upon defendants' administration of
Dilaudid to Cynthia. The proposed fraud claim is based upon a
medical record produced by Dr. Lauterbach at his deposition.
That record, which the parties referred to as “the
addendum, ” states that after Cynthia was intubated
“a large piece of food was aspirated from the ET
tube.” Schoel Decl. Ex. F (Dkt. No. 50-10). Plaintiffs
assert that the addendum “is clearly a false and
fraudulent record . . . designed to mislead and hide the
truth of highly culpable misconduct that the Defendants
repeatedly administered Dilaudid . . . simply to mask her
pain and so they could discharge her without stabilizing her
condition . . . .” Reply at 2 (Dkt. No. 53). Plaintiffs
also claim that the addendum was “intentionally
concealed” from plaintiffs until the day of the
oppose the addition of new claims on numerous grounds.
Defendants argue that reckless neglect is not an independent
cause of action in California, but rather that it is an
element of the Elder Abuse and Dependent Adult Civil
Protection Act, Cal. Welf. & Inst. Code § 15657.
Defendants note that this Court has held that plaintiffs
cannot state a claim under the Elder Abuse and Dependent
Adult Civil Protection Act because Cynthia Gutierrez is not a
“dependent adult” under the statute, and they
argue that plaintiffs' proposed amendment “is an
attempted end run” around the Court's previous
decision. Plaintiffs' reply brief does not respond to
this argument. Instead, plaintiffs simply assert that it was
reckless for defendants to administer Dilaudid to Cynthia.
also contend that Court should deny leave to amend as to the
proposed fraud claim. Defendants argue that plaintiffs'
claims that the addendum was falsified and intentionally
concealed are baseless, and defendants note that there are
numerous references in the medical records - apart from the
addendum - regarding Cynthia inhaling food and vomit.
Defendants contend that to the extent the fraud claim is
based on the alleged falsification and concealment of the
addendum, the claim is futile. Defendants also note that
plaintiffs include allegations regarding the administration
of Dilaudid in the proposed fraud claim, and defendants
assert that plaintiffs can pursue that issue in the context
of the negligence claim.
district court need not grant leave to amend where the
amendment: (1) prejudices the opposing party; (2) is sought
in bad faith; (3) produces an undue delay in litigation; or
(4) is futile.” AmerisourceBergen Corp. v.
Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).
The Court concludes that the proposed amendment is futile.
The Court agrees with defendants that “reckless
neglect” is an element of a claim under the Elder Abuse
and Dependent Adult Civil Protection Act, Cal. Welf. &
Inst. Code § 15657, and it is not a standalone cause of
action. See generally Delaney v. Baker, 20 Cal.4th
23 (1999) (distinguishing “reckless neglect”
under the Elder Abuse and Dependent Adult Civil Protection
Act from claims for professional negligence). The Court has
already determined that plaintiffs cannot state a claim under
that statute, and therefore DENIES plaintiff leave to amend
to assert a “reckless neglect” claim. Further, as
defendants note, plaintiffs may pursue their allegations
regarding the administration of Dilaudid through their
Court also finds that the proposed fraud claim is futile.
Under California law, the essential elements of fraud are (1)
a misrepresentation; (2) knowledge of falsity; (3) intent to
induce reliance; (4) justifiable reliance; and (5) resulting
damage. City of Industry v. City of Fillmore, 198
Cal.App.4th 191, 211 (2011). Plaintiffs do not explain how
the alleged falsification or concealment of the addendum
constitutes fraud. Plaintiff do not allege how the creation
of a false medical record, and the concealment of that
record, was intended to induce reliance, nor do plaintiffs
explain how they relied on the allegedly concealed and false
medical record to their detriment. Accordingly, the Court
DENIES plaintiffs leave to amend to add a fraud
foregoing reasons, the Court GRANTS plaintiffs leave to amend
the complaint to add additional defendants and DENIES leave
to amend to add additional claims. Plaintiffs shall file and
serve the amended complaint no later than July 3,