1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Kimberly Frisk, No. 2:23-cv-00897-KJM-SCR 12 Plaintiff, ORDER 13 v. 14 Eden Housing Management, Inc., et al., 1S Defendants. 16 17 Plaintiff Kimberly Frisk seeks to amend her complaint. Defendant Eden Housing 18 | Management, Inc. opposes. For the reasons set forth below, the court grants the motion. 19 | IT. BACKGROUND 20 Plaintiff filed her initial complaint in San Joaquin County Superior Court. See generally 21 | Compl., Removal Notice Ex. B, ECF No. 1-2. Eden removed the action, invoking this court’s 22 | jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. See Removal Notice □□ 13-16, ECF 23 | No. 1. This court held an initial scheduling conference and subsequently ordered plaintiff to file 24 | her motion to join additional defendants within twenty-one days. See Min. Order (Sept. 22, 25 | 2023), ECF No. 11. Plaintiff filed timely objections to the case schedule. See Obj., ECF No. 12; 26 | Min. Order (Sept. 22, 2023) (noting “case schedule will become final without further order of the 27 | court unless objections are filed within fourteen (14) calendar days”). Plaintiff requested the 28 | court modify the scheduling order to make clear plaintiff could file a motion not only to join
1 additional defendants, but also to amend the complaint. See generally Obj. After reviewing the 2 objections, the court amended its order as plaintiff requested. Prior Order (Oct. 12, 2023), ECF 3 No. 14. 4 Plaintiff also formally filed a timely motion to amend the complaint. See generally Mot., 5 ECF No. 13. The proposed amended complaint would add an eighth claim against Eden for 6 breach of medical privacy and a ninth claim against a new defendant, Schwartz Semerdjian 7 Cauley & Evans LLP, for allegedly aiding and abetting plaintiff’s alleged discriminatory 8 wrongful termination. See Mot. at 6–71; see generally Proposed Second Am. Compl., Mot. Ex. 5, 9 ECF No. 13. Further, plaintiff seeks to make minor corrections to the complaint without 10 changing preexisting claims for relief or making substantive changes. See id. at 7. Eden does not 11 oppose plaintiff’s amending the complaint to revise her previously pled causes of action but 12 opposes the addition of new claims and a new defendant. See generally Opp’n, ECF No. 15. 13 The motion is fully briefed, see Reply, ECF No. 16, and the court submitted the motion without 14 oral argument as provided by Local Rule 230(g). Min. Order (Nov. 30, 2023), ECF No. 17. 15 II. LEGAL STANDARD 16 Under Federal Rule of Civil Procedure 16(b), “[a] schedule may be modified only for 17 good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Thus, a party seeking leave 18 to amend pleadings after the deadline specified in the scheduling order must first satisfy Federal 19 Rule of Civil Procedure 16(b)’s “good cause” standard. See Johnson v. Mammoth Recreations, 20 Inc., 975 F.2d 604, 608–09 (9th Cir. 1992). Plaintiff sought leave to amend before the court’s 21 October 13, 2023 deadline for doing so, therefore she need not satisfy Rule 16(b). See Min. 22 Order (Sept. 22, 2023); Prior Order (Oct. 12, 2023); see also J.C. v. San Juan Unified Sch. Dist., 23 No. 18-02735, 2020 WL 4676542, at *2 (E.D. Cal. Aug. 12, 2020). 24 Federal Rule of Civil Procedure 15(a)(2), provides as a general matter that district courts 25 should “freely give leave” to amend the pleadings “when justice so requires.” Fed. R. Civ. P. 26 15(a)(2). The Ninth Circuit has “stressed Rule 15’s policy of favoring amendments[.]” Ascon 1 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (citation omitted). “[T]his 2 policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 3 893 F.2d 1074, 1079 (9th Cir. 1990) (citation omitted). The court considers the following five 4 factors when determining whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) 5 prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has 6 previously amended his complaint.” In re W. States Wholesale Nat. Gas Antitrust Litig., 7 715 F.3d 716, 738 (9th Cir. 2013) (citation and marks omitted). 8 III. ANALYSIS 9 While Eden does not oppose plaintiff’s request to make minor non-substantive changes to 10 the complaint, Eden does oppose plaintiff’s request to add an additional cause of action and a new 11 defendant. Opp’n at 5. Eden’s opposition is based solely on futility. Id. Futility alone can justify 12 denial of a motion for leave to amend. Wagner v. Cnty. of Plumas, No. 18-03105, 13 2020 WL 820241, at *5 (E.D. Cal. Feb. 19, 2020) (citing Bonin v. Calderon, 59 F.3d 815, 845 14 (9th Cir. 1995)). However, “leave to amend should be denied as futile ‘only if no set of facts can 15 be proved under the amendment to the pleadings that would constitute a valid and sufficient claim 16 or defense[.]’” Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018) (quoting 17 Sweaney v. Ada County, 119 F.3d 1385, 1393 (9th Cir. 1997)); see also Ctr. for Biological 18 Diversity v. Veneman, 394 F.3d 1108, 1114 (9th Cir. 2005). But “[d]enial of leave to amend on 19 this ground is rare.” Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003). The 20 court analyzes Eden’s futility arguments in turn. 21 A. Proposed Eighth Cause of Action: Medical Privacy 22 Plaintiff seeks to add an eighth cause of action against Eden for breach of duty regarding 23 medical privacy under California Civil Code sections 56.20 and 56.35. Specifically, plaintiff 24 seeks to allege Eden is liable under the statute for improperly disclosing plaintiff’s medical 25 information, “including but not limited to Plaintiff’s history as it related to undergoing COVID 26 vaccination or not having done so” without her authorization. Proposed Second Am. Compl. 27 ¶ 294. In opposition, Eden argues adding this cause of action is futile, because Eden never 28 possessed any “medical information” as defined under the statute. Opp’n at 5. As relevant here, 1 “medical information” is defined as “any individually identifiable information, in electronic or 2 physical form, in possession of or derived from a . . . contractor regarding a patient’s medical 3 history, mental health application information, reproductive or sexual health application 4 information, mental or physical condition, or treatment.” Cal. Civ. Code § 56.05(j).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Kimberly Frisk, No. 2:23-cv-00897-KJM-SCR 12 Plaintiff, ORDER 13 v. 14 Eden Housing Management, Inc., et al., 1S Defendants. 16 17 Plaintiff Kimberly Frisk seeks to amend her complaint. Defendant Eden Housing 18 | Management, Inc. opposes. For the reasons set forth below, the court grants the motion. 19 | IT. BACKGROUND 20 Plaintiff filed her initial complaint in San Joaquin County Superior Court. See generally 21 | Compl., Removal Notice Ex. B, ECF No. 1-2. Eden removed the action, invoking this court’s 22 | jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. See Removal Notice □□ 13-16, ECF 23 | No. 1. This court held an initial scheduling conference and subsequently ordered plaintiff to file 24 | her motion to join additional defendants within twenty-one days. See Min. Order (Sept. 22, 25 | 2023), ECF No. 11. Plaintiff filed timely objections to the case schedule. See Obj., ECF No. 12; 26 | Min. Order (Sept. 22, 2023) (noting “case schedule will become final without further order of the 27 | court unless objections are filed within fourteen (14) calendar days”). Plaintiff requested the 28 | court modify the scheduling order to make clear plaintiff could file a motion not only to join
1 additional defendants, but also to amend the complaint. See generally Obj. After reviewing the 2 objections, the court amended its order as plaintiff requested. Prior Order (Oct. 12, 2023), ECF 3 No. 14. 4 Plaintiff also formally filed a timely motion to amend the complaint. See generally Mot., 5 ECF No. 13. The proposed amended complaint would add an eighth claim against Eden for 6 breach of medical privacy and a ninth claim against a new defendant, Schwartz Semerdjian 7 Cauley & Evans LLP, for allegedly aiding and abetting plaintiff’s alleged discriminatory 8 wrongful termination. See Mot. at 6–71; see generally Proposed Second Am. Compl., Mot. Ex. 5, 9 ECF No. 13. Further, plaintiff seeks to make minor corrections to the complaint without 10 changing preexisting claims for relief or making substantive changes. See id. at 7. Eden does not 11 oppose plaintiff’s amending the complaint to revise her previously pled causes of action but 12 opposes the addition of new claims and a new defendant. See generally Opp’n, ECF No. 15. 13 The motion is fully briefed, see Reply, ECF No. 16, and the court submitted the motion without 14 oral argument as provided by Local Rule 230(g). Min. Order (Nov. 30, 2023), ECF No. 17. 15 II. LEGAL STANDARD 16 Under Federal Rule of Civil Procedure 16(b), “[a] schedule may be modified only for 17 good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Thus, a party seeking leave 18 to amend pleadings after the deadline specified in the scheduling order must first satisfy Federal 19 Rule of Civil Procedure 16(b)’s “good cause” standard. See Johnson v. Mammoth Recreations, 20 Inc., 975 F.2d 604, 608–09 (9th Cir. 1992). Plaintiff sought leave to amend before the court’s 21 October 13, 2023 deadline for doing so, therefore she need not satisfy Rule 16(b). See Min. 22 Order (Sept. 22, 2023); Prior Order (Oct. 12, 2023); see also J.C. v. San Juan Unified Sch. Dist., 23 No. 18-02735, 2020 WL 4676542, at *2 (E.D. Cal. Aug. 12, 2020). 24 Federal Rule of Civil Procedure 15(a)(2), provides as a general matter that district courts 25 should “freely give leave” to amend the pleadings “when justice so requires.” Fed. R. Civ. P. 26 15(a)(2). The Ninth Circuit has “stressed Rule 15’s policy of favoring amendments[.]” Ascon 1 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (citation omitted). “[T]his 2 policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 3 893 F.2d 1074, 1079 (9th Cir. 1990) (citation omitted). The court considers the following five 4 factors when determining whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) 5 prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has 6 previously amended his complaint.” In re W. States Wholesale Nat. Gas Antitrust Litig., 7 715 F.3d 716, 738 (9th Cir. 2013) (citation and marks omitted). 8 III. ANALYSIS 9 While Eden does not oppose plaintiff’s request to make minor non-substantive changes to 10 the complaint, Eden does oppose plaintiff’s request to add an additional cause of action and a new 11 defendant. Opp’n at 5. Eden’s opposition is based solely on futility. Id. Futility alone can justify 12 denial of a motion for leave to amend. Wagner v. Cnty. of Plumas, No. 18-03105, 13 2020 WL 820241, at *5 (E.D. Cal. Feb. 19, 2020) (citing Bonin v. Calderon, 59 F.3d 815, 845 14 (9th Cir. 1995)). However, “leave to amend should be denied as futile ‘only if no set of facts can 15 be proved under the amendment to the pleadings that would constitute a valid and sufficient claim 16 or defense[.]’” Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018) (quoting 17 Sweaney v. Ada County, 119 F.3d 1385, 1393 (9th Cir. 1997)); see also Ctr. for Biological 18 Diversity v. Veneman, 394 F.3d 1108, 1114 (9th Cir. 2005). But “[d]enial of leave to amend on 19 this ground is rare.” Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003). The 20 court analyzes Eden’s futility arguments in turn. 21 A. Proposed Eighth Cause of Action: Medical Privacy 22 Plaintiff seeks to add an eighth cause of action against Eden for breach of duty regarding 23 medical privacy under California Civil Code sections 56.20 and 56.35. Specifically, plaintiff 24 seeks to allege Eden is liable under the statute for improperly disclosing plaintiff’s medical 25 information, “including but not limited to Plaintiff’s history as it related to undergoing COVID 26 vaccination or not having done so” without her authorization. Proposed Second Am. Compl. 27 ¶ 294. In opposition, Eden argues adding this cause of action is futile, because Eden never 28 possessed any “medical information” as defined under the statute. Opp’n at 5. As relevant here, 1 “medical information” is defined as “any individually identifiable information, in electronic or 2 physical form, in possession of or derived from a . . . contractor regarding a patient’s medical 3 history, mental health application information, reproductive or sexual health application 4 information, mental or physical condition, or treatment.” Cal. Civ. Code § 56.05(j). According 5 to Eden, the information about plaintiff’s vaccination status was not “‘in possession of or derived 6 from’ an outside source, as required in order to be ‘medical information’ under th[e statutory] 7 definition.” Opp’n at 11. In reply, plaintiff argues Eden misunderstands its proposed 8 amendment, does not cite any case law supporting its statutory interpretation, and contends it 9 should have a “proper opportunity to brief the issue.” Reply at 6–7. 10 “Courts within this District and the Ninth Circuit often defer assessments of a proposed 11 amendment’s legal substance until after those amendments are filed and a defendant formally 12 moves to dismiss.” Ortega v. Chick-fil-A, Inc., No. 21-0845, 2021 WL 5281031, at *2 (E.D. Cal. 13 Nov. 12, 2021) (collecting cases); see SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 14 1086 (S.D. Cal. 2002) (“[Legal sufficiency is] often more appropriately raised in a motion to 15 dismiss rather than in an opposition to a motion for leave to amend.”). Here, because plaintiff 16 alleges a contractor, U.S. Healthworks, was in possession of plaintiff’s medical information and is 17 prepared to allege this information was disclosed to an unauthorized third party, it is plausible the 18 medical information disclosed fits within the statutory definition. See Proposed Second Am. 19 Compl. ¶¶ 72A, 103A, 112D, 294. While plaintiff’s allegations ultimately may be legally 20 insufficient to support her claims, the court cannot conclude based on the limited arguments 21 before it now that amendment would be futile such that it should deny the motion to amend. Cf. 22 Fagalnifin v. First Tech. Fed. Credit Union, No. 22-00734, 2023 WL 316919, at *3 (E.D. Cal. 23 Jan. 19, 2023) (finding similarly). 24 B. Proposed Ninth Cause of Action: Aiding and Abetting 25 Plaintiff also seeks to add a ninth cause of action for aiding and abetting wrongful 26 termination against a new defendant, Schwartz Semerdjian Cauley & Evans LLP, the law firm 27 representing defendant in this matter. Eden raises three arguments to support its position 28 amendment here is futile. First, Eden contends California law does not allow plaintiff to sue a 1 third party for wrongful termination or aiding and abetting wrongful termination. Opp’n at 12. 2 Second, Eden argues such a claim is also not viable under the Fair Employment and Housing Act 3 (FEHA). Id. at 13–18. Finally, Eden argues adding the ninth cause of action is futile because it is 4 inconsistent with other allegations in plaintiff’s complaint. Id. at 18–19. In reply, plaintiff argues 5 aiding and abetting can constitute a cause of action under California law, plaintiff does not have 6 space in its brief to address a potential FEHA claim and plaintiff’s allegations are not 7 inconsistent. Reply at 9–11. 8 While the court has doubts about the ultimate viability of this proposed claim, it declines 9 to make a decision regarding its strength at this stage and finds the issues raised in Eden’s 10 opposition are more appropriately resolved with full briefing after the claim is amended. See 11 Ortega, 2021 WL 5281031, at *2 (collecting cases); Puget Soundkeeper All. v. APM Terminals 12 Tacoma LLC, 545 F. Supp. 3d 893, 897–98 (W.D. Wash. 2021) (finding futility arguments in 13 opposition to motion to amend “better suited for full briefing”). 14 IV. CONCLUSION 15 For the reasons set forth above, the court grants plaintiff’s request to amend the 16 complaint. Plaintiff shall promptly file the proposed amended complaint on the docket and 17 defendant shall timely respond as provided by the federal rules. The parties are further directed to 18 submit a proposed modified scheduling order no later than fourteen (14) days after this order is 19 filed. See Prior Order (Feb. 27, 2024), ECF No. 24. 20 This order resolves ECF No. 13. 21 IT IS SO ORDERED. 22 DATED: October 8, 2024.