1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 THE ESTATE OF MICHAEL WILSON Case No. 20-cv-00457-BAS-DEB 10 by and through its administrator PHYLLIS JACKSON, and PHYLLIS ORDER GRANTING PLAINTIFFS’ 11 JACKSON, MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 12 Plaintiffs, v. (ECF No. 33) 13 COUNTY OF SAN DIEGO; WILLIAM 14 GORE; BARBARA LEE; and DOES 1– 100, 15 Defendants. 16 17 Plaintiffs move for leave to file a First Amended Complaint (“FAC”). (Motion for 18 Leave to File FAC (“Motion” or “Mot.”), ECF No. 33.) The proposed FAC attached to the 19 Motion adds Doe defendants, rewrites and expands the introductory and substantive 20 allegations, alters information about Plaintiff Phyllis Jackson and her relationship to the 21 decedent, Michael Wilson, changes the labels on the causes of action, and seeks to restate 22 the negligence claim against the County under a theory of respondeat superior. (FAC, ECF 23 No. 33-2.) The County opposes the Motion, indicating that it does not oppose the addition 24 of the Doe defendants but does oppose the addition of the altered information about the 25 relationship between Phyllis Jackson and Mr. Wilson and the County as a defendant to the 26 dismissed negligence cause of action. (Opposition to Mot. (“Opposition” or “Opp’n”), ECF 27 No. 38.) Plaintiffs reply. (ECF No. 39.) For the reasons stated below, the Court GRANTS 28 the Motion. 1 I. BACKGROUND 2 On February 14, 2019, Michael Wilson died from heart failure. (Compl. ¶¶ 34–35.) 3 Prior to his death, Mr. Wilson was incarcerated at the San Diego Central Jail. (See id. at 4 1.) He collapsed in his cell, was transported to UCSD Medical Center, and passed away. 5 (Id. ¶ 34.) The initial suit was brought against the County of San Diego, Sheriff William 6 Gore, Alfred Joshua, Barbara Lee, and various Doe defendants, members of the SDCJ staff. 7 (See generally, Compl.) 8 On July 10, 2020, the Court granted in part Defendants’ Motion to Dismiss. (See 9 generally, Order Granting in Part and Denying in Part Mot. to Dismiss (“Order”), ECF No. 10 17.) Pertinent to the Motion to Dismiss, the Court dismissed the negligence claim against 11 the County without prejudice because Plaintiffs had not identified any statute or enactment 12 that would impose a duty upon the County. (Id. at 12–13.) The Court, however, denied 13 the motion to dismiss with regard to a separate Monell count alleged against the County. 14 (Id. at 9–10.) The Court granted Plaintiffs leave to file an amended complaint by July 31, 15 2020. (Id. at 17.) Plaintiffs elected not to do so. 16 On January 15, 2021, Plaintiffs filed the instant Motion, attaching a proposed FAC. 17 The proposed FAC has four major changes. First, the FAC proposes to add ten defendants 18 and dismiss defendant Alfred Joshua. (See FAC, Caption.) Second, the FAC adds 19 extensive introductory and substantive allegations, some but not all of which pertain to the 20 newly added Defendants. (FAC ¶¶ 26–80, 102m–o, 120, 145, 176, 201.) Third, instead of 21 identifying Plaintiff Phyllis Jackson as Mr. Wilson’s “mother,” the FAC changes her 22 relationship to his “equitably adopted mother” who “has been appointed a special 23 administrator” to his Estate. (Id. ¶ 4.) And fourth, the FAC adds the County back into the 24 negligence cause of action. (See id., Sixth Cause of Action.) The Court discusses these 25 additions in more detail below. 26 A. New Defendants 27 Plaintiffs add new allegations against ten defendants including Louis Gilleran, who 28 was the interim Chief Medical Officer for the San Diego County Sheriff’s Department at 1 the time of Wilson’s death. (FAC ¶ 13.) Gilleran allegedly supervised the medical staff 2 including defendant contractors. (Id.) Plaintiffs also add allegations against Dr. Peter 3 Freedland, who allegedly failed to treat Wilson for his serious medical condition, and Nurse 4 Practitioner Vincent Gatan, who noted Wilson had received no medication, had a history 5 of trouble breathing, and suffered from congenital heart failure. (Id. ¶¶ 43–46, 56.) The 6 FAC also adds claims against Coast Correction Medical Group (“CCMG”) and its 7 President and CEO Mark O’Brien. (Id. ¶ 14.) Plaintiffs allege CCMG is a third-party 8 contractor who employed, supervised, and trained defendants Freeland and Gatan. (Id.) 9 The FAC also adds claims against nurses Anil Kumar, who allegedly failed to check 10 Mr. Wilson’s chart to provide him his heart medication, and Rizalina Bautista, who 11 allegedly conducted a medical screening of Mr. Wilson but failed to give critical medical 12 information to deputies at who would make housing determinations for Wilson. (FAC ¶¶ 13 32, 71.) The FAC also makes allegations against two other employees: Marylene Ibanez— 14 who “refused to provide Michael his Lasix or other heart medication” and “failed to 15 expedite the medical visit or schedule a visit with a doctor given Michael’s severe 16 condition”—and Macy Germono, who “noted that Michael would catch his breath 17 whenever he spoke and that he was in moderate distress” but “did not refer to the County’s 18 Standardized Nursing Procedure for chest pain which takes into consideration cardiac 19 disease.” (FAC ¶¶ 35–37, 54.) Finally, the FAC adds claims against Laucet Garcia, a 20 deputy who made housing determinations for Mr. Wilson and failed to place Mr. Wilson 21 in the medical unit. (FAC ¶¶ 67–69.) 22 B. Relationship Between Michael Wilson and Phyllis Jackson 23 In the Complaint, Plaintiff Phyllis Jackson was identified as Mr. Wilson’s mother. 24 (Compl. ¶ 4.) The FAC now corrects that original allegation. It explains that Ms. Jackson 25 began caring for Mr. Wilson when he was three months old. She intended to adopt him 26 but opted to obtain legal guardianship in lieu of adoption because of the “extraordinary 27 medical costs related to Michael’s heart condition.” (FAC ¶ 6.) She held Mr. Wilson out 28 to be her child and he referred to her as his mother. (Id.) Mr. Wilson resided with Ms. 1 Jackson throughout his childhood and after he turned 18. (Id.) At the time of his death at 2 the age of 32, he “continued to reside with Ms. Jackson in her home.” (Id.) Thus, although 3 Ms. Jackson did not officially adopt Mr. Wilson, she was his “equitably adopted mother.” 4 (FAC ¶ 4.) She also “has been appointed a special administrator” to his Estate. (Id.) 5 C. Negligence Claim Against the County 6 In the FAC, the Sixth Cause of Action for Negligence is alleged against the newly- 7 added defendants as well as the County, which the FAC claims is “responsible for the act 8 of individuals and Doe defendants under the theory of respondeat superior.” (FAC ¶ 205.) 9 II. LEGAL STANDARD 10 “[A] party may amend its pleading only with the opposing party’s written consent 11 or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. 12 Civ. P. 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Morongo Band 13 of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). “[S]ince Rule 15 favors 14 a liberal policy towards amendment, the nonmoving party bears the burden of 15 demonstrating why leave to amend should not be granted.” Genentech, Inc. v. Abbott 16 Laboratories, 127 F.R.D. 529, 530–31 (N.D. Cal. 1989) (citing Senza-Gel Corp. v. 17 Seiffhart, 803 F.2d 661, 666 (Fed. Cir. 1986)). 18 Although the decision whether to allow amendment is within the court’s discretion, 19 “[i]n exercising its discretion, a court must be guided by the underlying purpose of Rule 20 15—to facilitate decision on the merits rather than on the pleadings or technicalities.” DCD 21 Programs, Ltd. V.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 THE ESTATE OF MICHAEL WILSON Case No. 20-cv-00457-BAS-DEB 10 by and through its administrator PHYLLIS JACKSON, and PHYLLIS ORDER GRANTING PLAINTIFFS’ 11 JACKSON, MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 12 Plaintiffs, v. (ECF No. 33) 13 COUNTY OF SAN DIEGO; WILLIAM 14 GORE; BARBARA LEE; and DOES 1– 100, 15 Defendants. 16 17 Plaintiffs move for leave to file a First Amended Complaint (“FAC”). (Motion for 18 Leave to File FAC (“Motion” or “Mot.”), ECF No. 33.) The proposed FAC attached to the 19 Motion adds Doe defendants, rewrites and expands the introductory and substantive 20 allegations, alters information about Plaintiff Phyllis Jackson and her relationship to the 21 decedent, Michael Wilson, changes the labels on the causes of action, and seeks to restate 22 the negligence claim against the County under a theory of respondeat superior. (FAC, ECF 23 No. 33-2.) The County opposes the Motion, indicating that it does not oppose the addition 24 of the Doe defendants but does oppose the addition of the altered information about the 25 relationship between Phyllis Jackson and Mr. Wilson and the County as a defendant to the 26 dismissed negligence cause of action. (Opposition to Mot. (“Opposition” or “Opp’n”), ECF 27 No. 38.) Plaintiffs reply. (ECF No. 39.) For the reasons stated below, the Court GRANTS 28 the Motion. 1 I. BACKGROUND 2 On February 14, 2019, Michael Wilson died from heart failure. (Compl. ¶¶ 34–35.) 3 Prior to his death, Mr. Wilson was incarcerated at the San Diego Central Jail. (See id. at 4 1.) He collapsed in his cell, was transported to UCSD Medical Center, and passed away. 5 (Id. ¶ 34.) The initial suit was brought against the County of San Diego, Sheriff William 6 Gore, Alfred Joshua, Barbara Lee, and various Doe defendants, members of the SDCJ staff. 7 (See generally, Compl.) 8 On July 10, 2020, the Court granted in part Defendants’ Motion to Dismiss. (See 9 generally, Order Granting in Part and Denying in Part Mot. to Dismiss (“Order”), ECF No. 10 17.) Pertinent to the Motion to Dismiss, the Court dismissed the negligence claim against 11 the County without prejudice because Plaintiffs had not identified any statute or enactment 12 that would impose a duty upon the County. (Id. at 12–13.) The Court, however, denied 13 the motion to dismiss with regard to a separate Monell count alleged against the County. 14 (Id. at 9–10.) The Court granted Plaintiffs leave to file an amended complaint by July 31, 15 2020. (Id. at 17.) Plaintiffs elected not to do so. 16 On January 15, 2021, Plaintiffs filed the instant Motion, attaching a proposed FAC. 17 The proposed FAC has four major changes. First, the FAC proposes to add ten defendants 18 and dismiss defendant Alfred Joshua. (See FAC, Caption.) Second, the FAC adds 19 extensive introductory and substantive allegations, some but not all of which pertain to the 20 newly added Defendants. (FAC ¶¶ 26–80, 102m–o, 120, 145, 176, 201.) Third, instead of 21 identifying Plaintiff Phyllis Jackson as Mr. Wilson’s “mother,” the FAC changes her 22 relationship to his “equitably adopted mother” who “has been appointed a special 23 administrator” to his Estate. (Id. ¶ 4.) And fourth, the FAC adds the County back into the 24 negligence cause of action. (See id., Sixth Cause of Action.) The Court discusses these 25 additions in more detail below. 26 A. New Defendants 27 Plaintiffs add new allegations against ten defendants including Louis Gilleran, who 28 was the interim Chief Medical Officer for the San Diego County Sheriff’s Department at 1 the time of Wilson’s death. (FAC ¶ 13.) Gilleran allegedly supervised the medical staff 2 including defendant contractors. (Id.) Plaintiffs also add allegations against Dr. Peter 3 Freedland, who allegedly failed to treat Wilson for his serious medical condition, and Nurse 4 Practitioner Vincent Gatan, who noted Wilson had received no medication, had a history 5 of trouble breathing, and suffered from congenital heart failure. (Id. ¶¶ 43–46, 56.) The 6 FAC also adds claims against Coast Correction Medical Group (“CCMG”) and its 7 President and CEO Mark O’Brien. (Id. ¶ 14.) Plaintiffs allege CCMG is a third-party 8 contractor who employed, supervised, and trained defendants Freeland and Gatan. (Id.) 9 The FAC also adds claims against nurses Anil Kumar, who allegedly failed to check 10 Mr. Wilson’s chart to provide him his heart medication, and Rizalina Bautista, who 11 allegedly conducted a medical screening of Mr. Wilson but failed to give critical medical 12 information to deputies at who would make housing determinations for Wilson. (FAC ¶¶ 13 32, 71.) The FAC also makes allegations against two other employees: Marylene Ibanez— 14 who “refused to provide Michael his Lasix or other heart medication” and “failed to 15 expedite the medical visit or schedule a visit with a doctor given Michael’s severe 16 condition”—and Macy Germono, who “noted that Michael would catch his breath 17 whenever he spoke and that he was in moderate distress” but “did not refer to the County’s 18 Standardized Nursing Procedure for chest pain which takes into consideration cardiac 19 disease.” (FAC ¶¶ 35–37, 54.) Finally, the FAC adds claims against Laucet Garcia, a 20 deputy who made housing determinations for Mr. Wilson and failed to place Mr. Wilson 21 in the medical unit. (FAC ¶¶ 67–69.) 22 B. Relationship Between Michael Wilson and Phyllis Jackson 23 In the Complaint, Plaintiff Phyllis Jackson was identified as Mr. Wilson’s mother. 24 (Compl. ¶ 4.) The FAC now corrects that original allegation. It explains that Ms. Jackson 25 began caring for Mr. Wilson when he was three months old. She intended to adopt him 26 but opted to obtain legal guardianship in lieu of adoption because of the “extraordinary 27 medical costs related to Michael’s heart condition.” (FAC ¶ 6.) She held Mr. Wilson out 28 to be her child and he referred to her as his mother. (Id.) Mr. Wilson resided with Ms. 1 Jackson throughout his childhood and after he turned 18. (Id.) At the time of his death at 2 the age of 32, he “continued to reside with Ms. Jackson in her home.” (Id.) Thus, although 3 Ms. Jackson did not officially adopt Mr. Wilson, she was his “equitably adopted mother.” 4 (FAC ¶ 4.) She also “has been appointed a special administrator” to his Estate. (Id.) 5 C. Negligence Claim Against the County 6 In the FAC, the Sixth Cause of Action for Negligence is alleged against the newly- 7 added defendants as well as the County, which the FAC claims is “responsible for the act 8 of individuals and Doe defendants under the theory of respondeat superior.” (FAC ¶ 205.) 9 II. LEGAL STANDARD 10 “[A] party may amend its pleading only with the opposing party’s written consent 11 or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. 12 Civ. P. 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Morongo Band 13 of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). “[S]ince Rule 15 favors 14 a liberal policy towards amendment, the nonmoving party bears the burden of 15 demonstrating why leave to amend should not be granted.” Genentech, Inc. v. Abbott 16 Laboratories, 127 F.R.D. 529, 530–31 (N.D. Cal. 1989) (citing Senza-Gel Corp. v. 17 Seiffhart, 803 F.2d 661, 666 (Fed. Cir. 1986)). 18 Although the decision whether to allow amendment is within the court’s discretion, 19 “[i]n exercising its discretion, a court must be guided by the underlying purpose of Rule 20 15—to facilitate decision on the merits rather than on the pleadings or technicalities.” DCD 21 Programs, Ltd. V. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quotation omitted). Denial 22 of the request to amend is only proper when it “would be clearly frivolous, unduly 23 prejudicial, cause undue delay or a finding of bad faith is made.” United Union of Roofers, 24 Waterproofers and Allied Trades No. 40 v. Insurance Corp. of America, 919 F.2d 1398, 25 1402 (9th Cir. 1990). 26 III. ANALYSIS 27 Defendants do not object to the proposed amendments adding the new ten defendants 28 and the extensive new allegations. (Opp’n at 3.) They only object on two grounds: (1) 1 Plaintiffs should not be allowed to change the allegations referring to Ms. Jackson’s 2 relationship to Mr. Wilson, and (2) Plaintiffs should not be allowed to circumvent the 3 Court’s previous order dismissing the negligence claim against the County. (Id. at 1.) 4 A. Allegations Regarding Ms. Jackson’s Relationship with Mr. Wilson 5 Defendants do not argue that the new allegations about Ms. Jackson are clearly 6 frivolous or made in bad faith. And although Defendants complain that the allegations 7 were known at the time the original Complaint was filed, amending the allegations will not 8 be unduly prejudicial or cause undue delay. This case is still in the early stages. Plaintiffs 9 represent that no depositions have been taken. Plaintiffs are adding ten new defendants 10 who have not yet been served or answered the Complaint. Therefore, adding allegations 11 regarding Ms. Jackson will not delay the case any more than it has already been delayed. 12 Finally, there is no evidence of bad faith as to the new allegations. Given the liberality 13 with which this Court must view any request to amend, the Court will allow Plaintiffs’ 14 leave to add allegations in the FAC concerning Ms. Jackson’s relationship to Mr. Wilson. 15 B. Plaintiffs’ Respondeat Superior Negligence Claim Against the County 16 The Court previously dismissed the County from the negligence cause of action but 17 gave Plaintiffs leave to amend the Complaint. (See Order at 12–13, 17.) Plaintiffs did not 18 file an amended complaint. Rather, they now seek to allege a negligence claim against the 19 County under a theory of respondeat superior. (See Reply at 6.) 20 Defendants argue that Plaintiffs should not be permitted to add this allegation 21 because they forfeited that right when they failed to timely file an amended complaint in 22 response to this Court’s July 10, 2020 Order. (Opp’n at 5.) However, Defendants do not 23 identify, and the Court does not find, any prejudice, bad faith, or undue delay that would 24 result from this amendment. Because the County has been a party to this case since its 25 inception, amending the allegations to add a respondeat superior liability claim will not 26 result in prejudice or delay the action. Indeed, a vicarious liability claim against the 27 County, as opposed to a direct liability claim, requires only that Plaintiffs plead and prove 28 tortious conduct by the tortfeasor-employees and not by the County itself, thus simplifying 1 ||the issues before the parties and the Court. See de Villers v. Cty. of San Diego, 156 Cal. 2 4th 238, 247 (2007) (to demonstrate vicarious liability, the injured party must show 3 tortfeasor-employee was liable for committing the tortious conduct that caused the 4 ||injury while acting within the course and scope of his or her employment”). Further, the 5 || Court finds no evidence of bad faith, noting that Plaintiffs discovered the facts underlying 6 ||the claims of wrongful conduct through written discovery that was obtained after the 7 || Court’s deadline to file their amended pleading had passed. (See Mot. at 5.) 8 Again, cognizant of the liberal policy toward amendment, see Morongo, 893 F.2d at 9 || 1079, the Court will permit Plaintiffs to add a respondeat superior liability claim against 10 || the County in Plaintiffs’ Sixth Cause of Action for negligence. 11 CONCLUSION 12 The Court GRANTS the Motion for Leave to File a FAC. (ECF No. 33.) Defendant 13 || Alfred Joshua is dismissed from the case. Plaintiffs shall file a final version of their 14 || proposed FAC (ECF No. 33-2), without the redlining, on the public docket by April 14, 15 ||}2021. Because the FAC names additional party defendants, the Clerk shall issue an 16 amended summons once the FAC is filed. 17 IT IS SO ORDERED. 18 /) 19 || DATED: April 12, 2021 Cyillig _| Hohe sk 20 United States District Judge 21 22 23 24 25 26 27 28