Sohler v. Benjo

• Court: District Court, D. Arizona
• Decided: September 24, 2021
• Docket: 2:20-cv-01991
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Donna Sohler, No. CV-20-01991-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Alexandre Benjo, et al.,

13 Defendants. 14 15 At issue is Defendants La Paz Regional Hospital, Monica Poehner, and Hanna 16 Hoffman’s Motion to Dismiss (Doc. 43, MTD), to which Plaintiff Donna Sohler filed a 17 Response (Doc. 44, Resp.) and Defendants filed a Reply (Doc. 48). The Court finds these 18 matters appropriate for decision without oral argument. See LRCiv 7.2(f). For the reasons 19 that follow, the Court grants in part and denies in part Defendants’ motion. 20 I. BACKGROUND 21 Plaintiff Donna Sohler brings this lawsuit in connection with the events surrounding 22 her husband, Ronald Sohler’s, death. 23 On October 11, 2018, Defendant Doctor Alexandre Benjo, M.D. (“Dr. Benjo”) 24 performed a left cardiac catheterization on Ronald Sohler at Defendant La Paz Regional 25 Hospital.1 (“La Paz”) (Third Amended Complaint (“TAC”) ¶ 16.) Defendants Monica 26 Poehner, R.N. and Hanna Hoffman, R.N. assisted Dr. Benjo with the procedure. (TAC 27 ¶ 17.) Plaintiff alleges that during the procedure, Dr. Benjo injected dye into the catheter 28 1 Dr. Benjo is not part of the instant Motion to Dismiss. 1 to test its position and noticed an air embolus in the left main. (TAC ¶ 19.) Dr. Benjo took 2 multiple steps to remove the air embolus but Mr. Sohler went into cardiac arrest. (TAC 3 ¶ 20.) Dr. Benjo called for the code response team, who administered CPR but 4 unfortunately could not stabilize Mr. Sohler. (TAC ¶ 21.) After one hour, Mr. Sohler was 5 pronounced dead. (TAC ¶ 21.) Dr. Benjo recorded the majority of these events in his 6 procedure notes, including 1) the existence of the air embolus; 2) the steps he took to fix 7 it; 3) Mr. Sohler’s cardiac arrest; 4) the attempted CPR; and 5) the possibility that the 8 contrast injector’s failure caused the air embolus. (TAC ¶¶ 19-22.) 9 Dr. Benjo met with Plaintiff immediately following her husband’s death. (TAC 10 ¶ 29.) Ms. Poehner, Ms. Hoffman, and approximately seven other La Paz employees were 11 also present for the conversation. (TAC ¶ 84.) Plaintiff alleges that Dr. Benjo told her that 12 Mr. Sohler died during the procedure due to a massive heart attack but failed to inform her 13 that he had inadvertently injected air into her husband during the procedure or that the 14 ACIST CVi contrast injector had allegedly failed and injected air. (TAC ¶ 29.) Neither 15 Ms. Poehner nor Ms. Hoffman objected to Mr. Benjo’s statements, and their body language 16 indicated that they agreed with the information he provided to Plaintiff. (TAC ¶ 84.) Based 17 on this conversation with Dr. Benjo as well as the apparent approval of the Defendants, 18 Plaintiff believed that her husband died of natural causes. (TAC ¶¶ 29, 84.) 19 Subsequently, Ronald Parker, M.D. conducted a medical examination of Mr. Sohler. 20 He concluded that Mr. Sohler died of natural causes attributed to cardiovascular collapse. 21 (TAC ¶¶ 31-32.) Based on information provided by Dr. Benjo, Ms. Poehner, and 22 Ms. Hoffman, Dr. Parker determined that an autopsy was unnecessary. (TAC ¶¶ 34-35.) 23 Plaintiff received Mr. Sohler’s death certificate containing Dr. Parker’s findings, which 24 reinforced her belief that Mr. Sohler died of natural causes. (TAC ¶¶ 39-40.) 25 After Mr. Sohler’s death, La Paz contacted ACIST to report that the ACIST CVi 26 contrast injector had failed. (TAC ¶ 27.) On January 14, 2019, a La Paz Hospital employee, 27 Rick Graybeal, met with a clinical specialist from ACIST. Mr. Graybeal explained that 28 immediately preceding Mr. Sohler’s death, Dr. Benjo swapped out the diagnostic catheter 1 for a guide catheter and did a test injection that introduced air into the catheter, which 2 caused Mr. Sohler to arrest. (TAC ¶ 28.) Mr. Graybeal obtained this information from 3 Dr. Benjo and the Hospital Staff. (TAC ¶ 28.) ACIST Medical Systems, Inc. ultimately 4 determined that the ACIST CVi contrast injector had worked according to specifications 5 and that Dr. Benjo and Defendants’ error caused the air injection into Mr. Sohler. (TAC 6 ¶ 30.) 7 On January 27, 2020 and May 20, 2020, Dr. Benjo and La Paz respectively provided 8 Plaintiff with their records for Mr. Sohler. (TAC ¶ 43.) The medical records indicated that 9 Mr. Sohler died due to the introduction of air during his catheterization procedure and the 10 alleged failure of the contrast injector device. Plaintiff was unaware of these causes of death 11 until she received the medical records. (TAC ¶¶ 42-43.) 12 Plaintiff filed her initial Complaint on October 14, 2020 for wrongful death and 13 other related claims. (Doc. 1) She filed her First Amended Complaint (Doc. 6) one day 14 later and subsequently filed a Second Amended Complaint on October 29, 2020 naming 15 multiple Defendants, including Dr. Benjo, La Paz, Ms. Poehner, and Ms. Hoffman 16 (Doc. 11). On January 11, 2021, La Paz, Ms. Poehner, and Ms. Hoffman (collectively, 17 “Defendants”) moved to dismiss the Second Amended Complaint (Doc. 30). Plaintiff then 18 filed the operative Third Amended Complaint, which brought claims against Dr. Benjo and 19 Defendants for wrongful death, loss of consortium, and fraud. It also brought claims against 20 Defendants for Aiding and Abetting Fraud as well as Fraudulent Concealment. Defendants 21 filed the instant Motion to Dismiss Plaintiff’s claims for Fraud, Aiding and Abetting Fraud, 22 and Fraudulent Concealment. Defendants additionally argued that upon the dismissal of 23 these claims, the other claims should be dismissed because Plaintiff did not file her initial 24 Complaint within the Statute of Limitations. 25 II. LEGAL STANDARD 26 When analyzing a complaint for failure to state a claim for relief under Fed. R. Civ. 27 P. 12(b)(6), the well-pled factual allegations are taken as true and construed in the light 28 most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 1 2009). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its 2 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Legal conclusions couched 3 as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 4 662, 680 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to 5 state a claim. In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). 6 In ruling upon a motion to dismiss for failure to state claim, a court may consider 7 only the complaint, any exhibits properly included in the complaint, and matters that may 8 be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of 9 Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of 10 U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). The court may take judicial notice 11 of facts “not subject to reasonable dispute” because they are either: “(1) generally known 12 within the territorial jurisdiction of the trial court or (2) capable of accurate and ready 13 determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. 14 R. Evid. 201; see also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (noting 15 that the court may take judicial notice of undisputed “matters of public record”). The court 16 may disregard allegations in a complaint that are contradicted by matters properly subject 17 to judicial notice. Daniels–Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). 18 III. ANALYSIS 19 A. Statute of Limitations 20 Defendants argue that Plaintiff is time-barred from asserting her claims because the 21 statute of limitations had run on Plaintiff’s claims. In response, Plaintiff contends that the 22 statute of limitations was tolled due to the discovery rule as well as Dr. Benjo and 23 Defendants’ fraudulent concealment of their negligent actions. 24 1. Discovery Rule 25 A complaint for personal injury or wrongful death must be filed within two years 26 after the cause of action “accrues.” A.R.S. § 12-542. In a case where the “complaint shows 27 on its face that the cause of action is barred by the statute of limitations, the burden is on 28 the plaintiff to show the statute should be tolled.” Ulibarri v. Gersentberger, 871 P.2d 698, 1 702 (Ariz. Ct. App. 1993) (citing Cooney v. Phoenix Newspapers, Inc., 770 P.2d 1185, 2 1187 (Ariz. Ct. App. 1989)). The “discovery rule” can be applied to toll the accrual of an 3 action where the “injury or the act causing the injury, or both, have been difficult for the 4 plaintiff to detect.” Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 898 P.2d 5 964, 967 (Ariz. 1995) (quoting April Enters. V. KTTV, 195 Cal. Rptr. 421, 436 (Ct. App. 6 1983)). Under the discovery rule, “a cause of action ‘accrues’ when the plaintiff discovers 7 or by the exercise of reasonable diligence should have discovered that he or she has been 8 injured by a particular defendant’s conduct.” Lawhon v. L.B.J. Institutional Supply, Inc., 9 765 P.2d 1003, 1007 (Ariz. Ct. App. 1988) (emphasis in original). “The plaintiff must at 10 least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred 11 and caused injury.” Walk v. Ring, 44 P.3d 990, 996 (2002). However, “it is not enough that 12 a plaintiff comprehends a ‘what;’ there must also be reason to connect the ‘what’ to a 13 particular ‘who’ in such a way that a reasonable person would be on notice to investigate 14 whether the injury might result from fault.” Id. 15 Here, the discovery rule applies to toll the statute of limitations. Plaintiff alleges that 16 Dr. Benjo told her that Mr. Sohler died of natural causes. The death certificate prepared by 17 Dr. Parker stated the same. Plaintiff first learned of the air embolus when she received 18 Mr. Sohler’s medical records on January 27, 2020. Therefore, Plaintiff plausibly alleged 19 that she was unaware of Defendants’ wrongdoing prior to that date. 20 Defendants’ Motion to Dismiss mistakenly conflates tolling due to the discovery 21 rule with fraudulent concealment tolling. Defendants contend that because Plaintiff cannot 22 state a claim for fraud against named Defendants, the statute of limitations should not be 23 tolled. However, application of the discovery rule does not depend on a defendant’s 24 fraudulent conduct. Rather, the discovery rule hinges on when a reasonable person 25 discovers or should have discovered a defendant’s negligent conduct. See Lawhon, 765 26 P.2d at 1007. Defendants finally address the discovery rule in their Reply with one 27 paragraph arguing that its application “relies on the already debunked theory that La Paz 28 fraudulently concealed information from Sohler.” (Reply at 6.) Not so. Plaintiff’s Third 1 Amended Complaint contains an entire section labelled “Discovery Rule Tolling” that 2 alleges sufficient facts to show: 1) that Plaintiff reasonably was unaware that “a wrong had 3 occurred” resulting in her husband’s death; and 2) a reasonable person would not have 4 “been on notice to investigate.” Id. 5 Defendants briefly argue that Plaintiff had a responsibility to perform a timely 6 investigation of the circumstances of her husband’s death and thus should have obtained 7 the medical records before she did. (MTD at 2.) The Court disagrees. Plaintiff reasonably 8 relied on Dr. Benjo as well as Dr. Parker’s report. See Id. While she knew that her husband 9 died, she was unaware of what allegedly caused his death or who was at fault. Therefore, 10 Plaintiff was not on notice to investigate and obtain the medical records. 11 Finally, Defendants contend that because Plaintiff learned of the air embolus prior 12 to the running of the statute of limitations, she had sufficient time to file the lawsuit and 13 thus her claim is time barred. (MTD at 3.) This is not how tolling works. The discovery 14 rule “postpones the beginning of the limitations period from the date the plaintiff is actually 15 injured to the date when [it] discovers (or reasonably should discover) it has been injured.” 16 Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Here, 17 Plaintiff plausibly alleged that did not discover Defendants’ wrongful conduct until 18 Dr. Benjo provided her the medical records on January 27, 2020. Therefore, the statute of 19 limitations on all claims arising from Mr. Sohler’s death did not begin to run until that date. 20 Accordingly, the Court denies Defendants’ Motion to Dismiss Plaintiff’s Third Amended 21 Complaint in its entirety. 22 2. Fraudulent Concealment 23 Additionally, the Court finds that fraudulent concealment tolls the statute of 24 limitations. In Arizona, the doctrine of fraudulent concealment provides that the statute of 25 limitations on a claim may be tolled if a plaintiff can demonstrate that “the defendant 26 concealed a cause of action thereby preventing the plaintiff from timely filing the claim.” 27 Florez v. Sargeant, 917 P.2d 250, 257 (Ariz. 1996). Defendants argue that Plaintiff cannot 28 state a cause of action against Defendants for fraud and thus fraudulent concealment does 1 not toll the statute of limitations. However, Defendants neither contest Plaintiff’s fraud 2 claims against Dr. Benjo nor whether Dr. Benjo fraudulently concealed facts from Plaintiff 3 preventing her from discovering Defendants’ alleged wrongful actions. Because these 4 claims against Dr. Benjo will survive the instant Motion to Dismiss regardless of this 5 Court’s findings, Plaintiff’s allegations that fraudulent concealment tolls the statute of 6 limitations against all named Defendants survives as well. Defendants appear to argue that 7 fraudulent concealment only tolls the statute of limitations for claims against the defendant 8 or defendants who perpetrated the fraud but cite no authority to support this proposition. 9 B. Count 4 – Common Law Fraud 10 Plaintiff brings claims against Defendants for fraud (Count 4), aiding and abetting 11 fraud (Count 7), and fraudulent concealment (Count 8). Plaintiff alleges that Dr. Benjo 12 committed fraud when he informed Plaintiff that Mr. Sohler died of a heart attack without 13 discussing the air embolus. Her claims against Defendants arise from their alleged conduct 14 during this conversation as well as Defendants’ allegedly inadequate disclosures to 15 Dr. Parker. Arizona law provides that the elements of fraud are as follows: (1) A 16 representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or 17 ignorance of its truth; (5) the speaker’s intent that it should be acted upon by the person and 18 in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) the 19 hearer’s reliance on its truth; (8) the right to rely on it; and (9) his consequent and proximate 20 injury. Echols v. Beauty Built Homes, Inc., 647 P.2d 629, 631 (Ariz. 1982). The cause of 21 action for fraud does not require a duty owed by the speaker to the hearer. See id. 22 Rule 9(b) requires that, in alleging fraud or mistake, “a party must state with 23 particularity the circumstances constituting fraud or mistake.” This pleading standard also 24 applies to claims for misrepresentation. Arnold & Assocs., Inc. v. Misys Healthcare Sys., 275 25 F. Supp. 2d 1013, 1028 (D. Ariz. 2003) (citing Wyatt v. Terhune, 315 F.3d 1108, 1118 (9th 26 Cir. 2003)). To meet the Rule 9(b) particularity requirement, a plaintiff “must include 27 statements regarding the time, place, and nature of the alleged fraudulent activities,” and 28 “‘mere conclusory allegations of fraud are insufficient.’” In re GlenFed, Inc. Sec. Litig., 1 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc), superseded by statute on other grounds, 2 Private Secs. Litig. Reform Act of 1995, Pub. Law 104-67 (codified at 15 U.S.C. § 78u-4 3 (1995)). Thus, “[a]verments of fraud must be accompanied by ‘the who, what, when, where, 4 and how’ of the misconduct alleged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 5 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). Furthermore, 6 a plaintiff must set forth more than the neutral facts necessary to identify the 7 transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false. In other words, the plaintiff must set forth an 8 explanation as to why the statement or omission complained of was false or misleading. 9 10 GlenFed, 42 F.3d at 1548. 11 To begin with, Counts 4 and 8 are redundant because fraudulent concealment is a 12 species of common law fraud. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement 13 Masons Local No. 395 Pension Trust Fund explained: 14 [T]here are three distinct classes of fraud: misrepresentation, concealment, and non-disclosure. Liability for fraudulent misrepresentation occurs under 15 § 525 of the RESTATEMENT (SECOND) OF TORTS and lies against 16 ‘[o]ne who fraudulently makes a misrepresentation of fact ... for the purpose of inducing another to act or to refrain from action....’ In contrast, liability 17 for nondisclosure occurs under § 551 of the RESTATEMENT (SECOND) 18 OF TORTS and lies against ‘[o]ne who fails to disclose to another a fact ... if, but only if, he is under a duty to the other ... to disclose the matter in 19 question.’ Liability for fraudulent concealment occurs under § 550 of the 20 RESTATEMENT (SECOND) OF TORTS and lies against a ‘party to a transaction who by concealment or other action intentionally prevents the 21 other from acquiring material information.’ 22 38 P.3d 12, 34 n. 22 (Ariz. 2002), as corrected (Apr. 9, 2002). Plaintiff acknowledges as 23 much. In response to Defendants’ argument that Count 4 should be dismissed because they 24 did not make a specific representation to Plaintiff, Plaintiff cites United States v. Colton, 25 231 F.3d 890, 899 (4th Cir. 2000) for the proposition that “fraudulent concealment – 26 without any misrepresentation or duty to disclose – can constitute common law fraud.” 27 (Resp. at 10.) In fact, Plaintiff spends the majority of her Response on Count 4 explaining 28 why Defendants’ actions constituted fraudulent concealment. (Resp. at 9-11.) Because 1 Counts 4 and 8 of Plaintiff’s Complaint allege the same cause of action – fraudulent 2 concealment – with regards to the instant Defendants, the Court will dismiss Count 4 3 against La Paz, Ms. Poehner, and Ms. Hoffman. 4 C. Count 7 – Aiding and Abetting Fraud 5 Under Arizona law, “claims of aiding and abetting tortious conduct require proof of 6 three elements: “1) the primary tortfeasor must commit a tort that causes injury to the 7 plaintiff; 2) the defendant must know that the primary tortfeasor’s conduct constitutes a 8 breach of duty; and 3) the defendant must substantially assist or encourage the primary 9 tortfeasor in the achievement of the breach.” Temple v. Hartford Ins. Co. of Midwest, 40 F. 10 Supp. 3d 1156, 1170 (D. Ariz. 2014) (citing Wells Fargo Bank, 38 P.3d at 23). The party 11 charged with aiding and abetting must have knowledge of the underlying tortious violation, 12 which can be inferred from the circumstances. Id. “Arizona recognizes aiding and abetting 13 as embodied in Restatement § 876(b), that a person who aids and abets a tortfeasor is 14 himself liable for the resulting harm to a third person.” Id. 15 Here, Plaintiff has not sufficiently alleged that Defendants’ conduct substantially 16 assisted Dr. Benjo’s fraud. Plaintiff alleges that Defendants are liable for aiding and 17 abetting because their body language, silence, and deference indicated they agreed with 18 Dr. Benjo’s explanation of Mr. Sohler’s death. (TAC ¶ 116.) The parties dispute whether 19 silence or inaction can constitute substantial assistance but neither party cites relevant 20 caselaw in support of its position. While there does not appear to be directly analogous 21 caselaw, courts have found in financial fraud cases that inaction constitutes substantial 22 assistance if defendant owes plaintiff a fiduciary duty. See e.g. Roberts v. Peat, Marwick, 23 Mitchell & Co., 857 F.2d 646, 652 (9th Cir. 1988) (“defendants may be liable for aiding 24 and abetting based on their silence if they have a duty to disclose knowledge that would be 25 material to investors.”); In re Sharp Intern. Corp., 403 F.3d 43, 50 (2d Cir. 2005). While 26 doctors owe their patients a fiduciary duty, Walk, 44 P.3d at 999; Thompson v. Wiener, 27 Case No. 08-CV-991-PHX-GMS, 2008 WL 5068945, at *9 (D. Ariz. Nov. 25, 2008), 28 Arizona courts have not determined whether that fiduciary duty extends to a nurse. 1 However, out-of-circuit courts have consistently held that a nurse does not owe a fiduciary 2 duty to the patient. See e.g. Nutty v. Jewish Hosp., 571 F. Supp. 1050, 1052-54 (S.D. Ill. 3 1983) (explaining that nurse did not have fiduciary relationship with patient); Bourassa v. 4 LaFortune, 711 F. Supp. 43, 48 (D. Mass 1989) (same). 5 Plaintiff argues that nurses owe their patients a fiduciary duty pursuant to the 6 Arizona Nurse Practice Act, which states that nurses shall “[p]rotect confidential 7 information unless obligated by law to disclose the information” and “advocate on behalf 8 of a client to promote the client’s best interest.” Ariz. Admin. Code Section 4-19- 9 402(B)(6), (11).2 This statute does not create a fiduciary duty. And to the extent Plaintiff 10 argues that a nurse’s duty to promote her client’s best interest means that Defendants’ 11 inaction constitutes substantial assistance, the Court declines to endorse such 12 unprecedented expansion of aiding and abetting liability. Plaintiff fails to state a claim for 13 aiding and abetting fraud. 14 D. Count 8 – Fraudulent Concealment 15 Likewise, the Court finds that Plaintiff failed to adequately plead a claim for 16 fraudulent concealment. Under Arizona law, a cause of action for fraudulent concealment 17 arises when one party “by concealment or other action intentionally prevents the other from 18 acquiring material information.” Wells Fargo Bank, 38 P.3d at 34. Plaintiff spends part of 19 her Response arguing that Defendants owed her a fiduciary duty. (Resp. at 17) However, 20 Plaintiff need not allege a fiduciary duty in order to state a claim for fraudulent 21 concealment. Id. At 21-22, 35-36. Rather, Plaintiff must allege “deceptive acts or 22 contrivances intended to hide information, mislead, avoid suspicion, or prevent further 23 inquiry into a material matter.” Id. at 35 (quoting United States v. Colton, 231 F.3d 890, 24 899 (4th Cir. 2000)) (internal quotation marks omitted). Once again, Plaintiff’s allegations 25 point only to Defendants’ silence, deference, and body language during the meeting with 26 Plaintiff. (TAC ¶ 123.) Plaintiff alleges that Defendants “had an opportunity to correct 27 Dr. Benjo and to provide Plaintiff and Dr. Parker with the truth… but they elected to either

28 2 The parties addressed whether nurses owe their patients a fiduciary duty in relation to Plaintiff’s fraudulent concealment claim. 1 (sic) remain silent about the true cause of death.” (TAC ¶ 125.) These allegations indicate 2 inaction and silence rather than the “deceptive acts or contrivances” necessary to state a 3 claim for fraudulent concealment. 4 Moreover, Plaintiff’s allegation regarding Defendants’ body language is insufficient 5 to state a claim under Rule 9(b)’s heightened pleading standard. Rule 9(b) requires that 6 Plaintiff “state with particularity the circumstances constituting fraud or mistake” and 7 explain “what is false or misleading about a statement.” GlenFed, 42 F.3d at 1548. Here, 8 Plaintiff only alleges that Defendants’ body language indicated approval and consent of 9 Dr. Benjo’s explanation but does not provide any further details. Without more, this 10 general, conclusory allegation does not meet the pleading requirements of Rule 9(b). For 11 these reasons, Count 8 shall be dismissed. 12 E. Dr. Parker and A.R.S. § 11-593 13 Finally, Plaintiff appears to assert that Defendants committed fraud because they 14 lied or withheld information from Dr. Parker regarding Mr. Sohler’s true cause of death. 15 (TAC ¶¶ 33-34.) However, Plaintiff does not allege any additional facts except that 16 Dr. Parker wrongly concluded that Mr. Sohler died of natural causes, which implies that 17 they provided him false information. (TAC ¶¶ 33, 37.) Such conclusory and non-specific 18 allegations are insufficient to state a claim for fraud under Rules 8 and 12, much less 19 Rule 9’s heightened pleading standard. 20 Based on Dr. Parker’s allegedly mistaken conclusion, Plaintiff also alleges that 21 Defendants misinformed a peace officer in violation of A.R.S. § 11-593.3 Again, Plaintiff’s 22 allegations are insufficient to state a claim under Rules 8, 9, and 12. 23 F. Leave to Amend 24 If a defective complaint can be cured, the plaintiff is entitled to amend the complaint 25 before her claims are dismissed with prejudice. Lopez v. Smith, 203 F.3d 1122, 1130 (9th 26 3 A.R.S. § 11-593 requires “[a]ny person having knowledge of the occurrence of the death 27 of a human being including a fetal death that is required to be reported pursuant to Subsection B of this section shall promptly notify the nearest peace officer of all 28 information in the person’s possession regarding the death and the circumstances surrounding it.” Cir. 2000). In her Response, Plaintiff neither identified any additional factual allegations nor || requested leave to amend, and it does not appear that yet another — fourth — amendment can || cure Plaintiffs fraud claims against Defendants. Accordingly, the Court will dismiss Counts 4, 7, and 8 with prejudice. 5 IT IS THEREFORE ORDERED granting in part, denying in part Defendants’ || Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. 43); 7 IT IS FURTHER ORDERED dismissing with prejudice Counts 4, 7, and 8 against 8 || Defendants La Paz Regional Hospital, Monica Poehner, and Hanna Hoffman; 9 IT IS FURTHER ORDERED that Counts 3 and 6 remain against Defendants La 10 || Paz Regional Hospital, Monica Poehner, and Hanna Hoffman. 11 IT IS FURTHER ORDERED denying as moot Defendants La Paz Regional 12 || Hospital, Monica Poehner and Hanna Hoffman’s Motion to Dismiss (Doc. 30). 13 Dated this 23rd day of September, 2021. CN 14 “wok: 15 wefhlee— United State$District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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