Blanca Mendoza v. County of Kings ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BLANCA MENDOZA, et al., Case No. 1:21-cv-00721-JLT-BAM 12 Plaintiffs, ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND CASE 13 v. SCHEDULE TO FILE THEIR SECOND AMENDED COMPLAINT 14 COUNTY OF KINGS, et al., (Doc. 71) 15 Defendants. 16 17 Currently pending before the Court is the motion of Plaintiffs Blanca Mendoza and B.M., 18 a minor by and through his guardian ad litem Jessica Garcia, for leave to modify the Scheduling 19 Conference Order to file a Second Amended Complaint. (Doc. 71.) On August 30, 2023, 20 Defendants Fabien Avalos and Alfred Rivera filed an opposition to the motion, (Doc. 73), and 21 Defendants County of Kings, Taylor Lopes, Blake Bursiaga, Tim Steadman, Cory Dobbins, and 22 Nate Hunt (collectively “Kings County Defendants”) filed a statement of non-opposition to the 23 motion, (Doc. 74). Plaintiffs filed a reply on September 8, 2023. (Doc. 75.) The motion was 24 submitted on the papers. (Doc. 72.) 25 Having considered the parties’ briefs, along with the entire record in this case, Plaintiffs’ 26 motion will be granted pursuant to Federal Rules of Civil Procedure 16(b)(4) and 15(a). 27 /// 28 /// 1 BACKGROUND 2 On May 3, 2021, Plaintiffs initiated this civil rights action under 42 U.S.C. § 1983, 3 alleging excessive force and unlawful detention/arrest under the Fourth Amendment, along with 4 state law violations. Plaintiffs filed a First Amended Complaint on October 12, 2021. (Doc. 23.) 5 On July 21, 2023, the Court issued a Scheduling Conference Order. (Doc. 58.) Among 6 other deadlines, that order set the deadline for amendment of the pleadings as December 1, 2022, 7 and the non-expert discovery deadline as April 28, 2023. (Id.) Following its issuance, the 8 Scheduling Conference Order was modified multiple times by stipulation of the parties to extend 9 the deadlines for non-expert and expert discovery. (See Docs. 62, 65, 70.) On July 28, 2023, 10 under the most recent modification of the Scheduling Conference Order, the Court extended the 11 non-expert discovery deadline for the limited purpose of completing the depositions of Jesse 12 Mendoza, Defendant Lopes, and third-party witness Trent Augustus. (Doc. 70.) Based on the 13 current deadlines, the expert discovery cutoff is December 30, 2023, the dispositive motion 14 deadline is January 15, 2024, and trial is set for August 20, 2024. (Doc. 65.) 15 On August 16, 2023, Plaintiffs filed the instant motion for leave to amend the Scheduling 16 Conference Order to file a Second Amended Complaint. By the proposed amendment to their 17 complaint, Plaintiffs seek to add Dakotah Fausnett as a defendant, to remove all other individual 18 defendants except Dakotah Fausnett, and Defendants Fabian Avalos and Alfred Rivera, and to 19 update the factual allegations with information learned during non-expert discovery. (Doc. 71.) 20 As background, Plaintiffs explain that on April 13, 2023, Defendant Kings County disclosed 21 previously unknown body-worn camera video of the incident at issue. Since that time, Plaintiffs 22 worked to identify the law enforcement officers who can be seen to use alleged force in the 23 camera video. (Doc. 71-1, Declaration of Ty Clarke (“Clarke Decl”), at ¶ 2.) On July 17, 2023, 24 Defendant Avalos, during his deposition, identified Dakotah Fausnett—a Kings County Sheriff’s 25 Deputy—as one of the officers who allegedly used force in the incident, but testified that he could 26 not say for sure that it was Deputy Fausnett. (Doc. 71-2, Fabian Avalos’ Depo., Ex. 1 to Clarke 27 Decl., at 54:3-19.) Thereafter, Plaintiffs began working to confirm that Deputy Fausnett was one 28 of the officers alleged to use force. Plaintiffs took Deputy Fausnett’s deposition on July 27, 2023, 1 and confirmed for the first time that Dakotah Fausnett “is the officer who can be seen striking 2 plaintiff Brian Mendoza on the body-worn camera.” (Doc. 71-3, Dakotah Fausnett Depo., Ex. 2 3 to Clarke Decl., at 36:6-11) Deputy Fausnett also testified that he had written a report on his use 4 of force but had been unable to locate it. (Id. at 34:10-24). Plaintiffs now request modification of 5 the Scheduling Conference Order to allow for the filing of a Second Amended Complaint. 6 On August 30, 2023, Defendants Avalos and Rivera opposed the motion, arguing that 7 Plaintiffs unduly delayed in pursuing their clams for relief, the request is made in bad faith in 8 order to conduct discovery after the non-expert discovery deadline, and defendants will be 9 prejudiced if leave to amend is granted. (Doc. 73.) 10 On August 30, 2023, Kings County Defendants filed a statement of non-opposition to the 11 motion, asserting that amendment of the complaint will streamline the case and will not impact 12 any of the current dates. Kings County Defendants indicate that they were unaware of Deputy 13 Fausnett’s involvement in the subject incident until body-worn camera video in the possession of 14 the Corcoran Police Department was disclosed to counsel for the Kings County Defendants. 15 (Doc. 74 at p. 2.) 16 In addition to their non-opposition, Kings County Defendants note that the proposed 17 Second Amended Complaint mistakenly alleges that Defendants Avalos and Rivera were 18 employed by the County of Kings. Plaintiffs and the Kings County Defendants reportedly have 19 stipulated that Plaintiffs will modify those allegations in the proposed Second Amended 20 Complaint to clarify that Defendants Avalos and Rivera work for the City of Hanford. (Id. at p. 21 3.) 22 On September 8, 2023, Plaintiffs filed a reply, clarifying that they do not seek to re-open 23 discovery. Rather, they only seek to amend the scheduling order so that the amended complaint 24 can be filed. ( Doc. 75.) 25 LEGAL STANDARDS 26 A. Federal Rule of Civil Procedure 16 27 Plaintiffs’ request to amend comes after expiration of the relevant Scheduling Conference 28 Order deadline for amendment to the pleadings. The Court therefore must apply the standard for 1 amending a scheduling order under Federal Rule of Civil Procedure 16. Coleman v. Quaker Oats 2 Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (finding district court correctly addressed motion for 3 leave to amend under Rule 16 because it had issued a pretrial scheduling order that established a 4 timetable for amending the pleadings and the motion was filed after the deadline had expired); 5 Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. June 16, 1999) (“[O]nce the district 6 court has filed a pretrial scheduling order pursuant to Rule 16 which establishes a timetable for 7 amending pleadings, a motion seeking to amend pleadings is governed first by Rule 16(b), and 8 only secondarily by Rule 15(a).”). 9 District courts enter scheduling orders in actions to “limit the time to join other parties, 10 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). Once 11 entered, a scheduling order “controls the course of the action unless the court modifies it.” Fed. R. 12 Civ. P. 16(d). Scheduling orders are intended to alleviate case management problems, Johnson v. 13 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992), and are “the heart of case 14 management,” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3rd Cir. 1986). Indeed, a scheduling 15 order is “not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by 16 counsel without peril.” Johnson, 975 F.2d at 610 (quoting Gestetner Corp. v. Case Equip. Co., 17 108 F.R.D. 138, 141 (D. Maine 1985)). Accordingly, pursuant to Federal Rule of Civil Procedure 18 16(b), a scheduling order “may be modified only for good cause and with the judge’s consent.” 19 Fed. R. Civ. P. 16(b)(4); see also Green Aire for Air Conditioning W.L.L. v. Salem, No. 1:18-cv- 20 00873-LJO-SKO, 2020 WL 58279, at *3 (E.D. Cal. Jan. 6, 2020) (“Requests to modify a 21 scheduling order are governed by Rule 16(b)(4) of the Federal Rules of Civil Procedure, which 22 provides that a court may modify a scheduling order ‘only for good cause.’”). As the Ninth 23 Circuit has explained, 24 In these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and establish deadlines to foster the efficient treatment and 25 resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the 26 deadlines. Parties must understand that they will pay a price for failure to comply strictly with the scheduling and other orders, and that failure to do so may 27 properly support severe sanctions and exclusions of evidence. 28 Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). 1 The party seeking to modify a scheduling order bears the burden of demonstrating good 2 cause. Handel v. Rhoe, No. 14-cv-1930-BAS(JMA), 2015 WL 6127271, at *2 (S.D. Cal. Oct. 16, 3 2015) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 4 F.2d at 608-609). The Court may modify the scheduling order “if it cannot reasonably be met 5 despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 609. If the party 6 was not diligent, then the inquiry should end. Id. If, however, there is good cause to modify the 7 scheduling order pursuant to Rule 16(b), the Court will then turn to Rule 15(a) to determine 8 whether the movant’s requested amendment to the pleading should be granted. Ramos v. FCA US 9 LLC, No. 1:17-CV-00973, 2019 WL 2106172, at *5 (citing Jackson, 186 F.R.D. at 607). 10 B. Federal Rule of Civil Procedure 15(a) 11 Rule 15(a) provides that a court “should freely give leave [to amend] when justice so 12 requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has stated: 13 [i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 14 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the 15 leave sought should, as the rules require, be “freely given.” 16 Foman v. Davis, 371 U.S. 178, 182 (1962). The intent of the rule is to “facilitate decision on the 17 merits, rather than on the pleadings or technicalities.” Chudacoff v. Univ. Med. Center of S. Nev., 18 649 F.3d 1143, 1152 (9th Cir. 2011). Consequently, the “policy of favoring amendments to 19 pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 20 (9th Cir. 1981). 21 Courts consider five factors in determining whether justice requires allowing amendment 22 under Rule 15(a): “bad faith, undue delay, prejudice to the opposing party, futility of amendment, 23 and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 24 1067, 1077 (9th Cir. 2004) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 25 1995) (citing Western Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)). 26 These factors are not of equal weight as prejudice to the opposing party has long been held to be 27 the most critical factor in determining whether to grant leave to amend. Eminence Capital, LLC v. 28 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it is the 1 consideration of prejudice to the opposing party that carries the greatest weight”); Jackson v. 2 Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (“Prejudice to the opposing party is the 3 most important factor.”). Absent prejudice, or a strong showing of any of the remaining factors, a 4 presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, 316 5 F.3d at 1052. 6 DISCUSSION 7 As indicated, Plaintiffs’ request to amend the complaint comes after expiration of the 8 relevant deadline for amendment of the pleadings set forth in the Scheduling Conference Order. 9 Plaintiffs are therefore required to demonstrate good cause to modify the Scheduling Conference 10 Order. See Coleman, 232 F.3d at 1294–95; Johnson, 974 F.2d at 609. Accordingly, the Court 11 examines Plaintiffs’ diligence to determine whether amendment of the Scheduling Conference 12 Order is proper. Phillips-Kerley v. City of Fresno, No. 1:18-cv-00438-AWI-BAM, 2021 WL 13 1966387, at *3 (E.D. Cal. May 17, 2021). 14 In determining diligence, the Court can inquire into (1) whether the movant was diligent 15 in aiding the Court in creating a scheduling order, (2) whether matters that were not, and could 16 not be foreseeable at the time the scheduling order was entered caused the need to amend, and (3) 17 whether the movant was diligent in attempting to amend the scheduling order once the need to 18 amend became apparent. Gonzalez v. Jones, No. 2:15-cv-2448-TLN-KJN, 2020 WL 9144005, at 19 *2 (E.D. Cal. April 13, 2020) (citation omitted). 20 Here, the Court finds good cause to allow for modification of the Scheduling Conference 21 Order. Plaintiffs aided the Court in creating a scheduling order, by participating in the filing of a 22 Joint Scheduling Report and in a Scheduling Conference with the Court. (Docs. 53, 56, and 57.) 23 As to the need to amend, Plaintiffs and the Kings County Defendants make clear that Deputy 24 Fausnett’s participation in the subject incident was unknown until the production of the body- 25 worn camera video in April 2023, well after the Scheduling Conference Order was entered. And, 26 once Deputy Fausnett’s participation was confirmed through his deposition on July 27, 2023, 27 Plaintiffs filed the instant motion for modification and amendment less than three weeks later. 28 Based on this record, and the timing of events, Plaintiffs appear diligent in seeking leave to 1 modify the Scheduling Conference Order and to amend the complaint. Moreover, Defendants 2 Avalos and Rivera, in opposing the motion, do not mention the Rule 16 standard to argue lack of 3 diligence. Accordingly, the Court finds that Plaintiffs have demonstrated good cause to amend 4 the Scheduling Conference Order under Rule 16(b). 5 The Court now turns to Rule 15(a) to determine whether Plaintiffs’ requested amendment 6 to the complaint should be granted. Hood v. Hartford Life & Acc. Ins. Co., 567 F. Supp. 2d 1221, 7 1224 (E.D. Cal. 2008) (“Only after the moving party has demonstrated diligence under Rule 16 8 does the court apply the standard under Rule 15 to determine whether the amendment was 9 proper.”). Under Rule 15(a), leave to amend need not be granted when the amendment: (1) 10 prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; 11 or (4) is futile. See Pizana v. SanMedica Int'l LLC, No. 1:18-cv-00644-DAD-SKO, ---F.R.D.---, 12 2022 WL 1241098, at *5 (E.D. Cal. Apr. 27, 2022). Defendants Avalos and Rivera argue that 13 leave to amend is not warranted because of undue delay, bad faith, and prejudice. (Doc. 73.) The 14 Court therefore limits its analysis to these factors. 15 Undue Delay 16 In evaluating undue delay, the Court considers “whether the moving party knew or should 17 have known the facts and theories raised by the amendment in the original pleading.” Jackson, 18 902 F.2d at 1388. Additionally, the Court examines whether “permitting an amendment would ... 19 produce an undue delay in the litigation.” Id. at 1387. 20 Defendants Avalos and Rivera contend that Plaintiffs had ample time and opportunity to 21 discover the names of the parties directly involved in the alleged incident and their role in the 22 alleged excessive force. Defendants Avalos and Rivera report that Plaintiffs continued the 23 depositions of the defendant officers and twice extended the non-expert discovery cutoff. 24 Defendants suggest that absent these continuances, Plaintiffs would not have had to wait until 25 after discovery is closed to request amendment. (Doc. 73 at p. 4.) Defendants also contend that 26 the proposed amended complaint “changes the factual allegations against already named 27 Defendants Avalos and Rivera,” but Plaintiffs were “aware of the facts surrounding the subject 28 incident and Defendants Avalos and Rivera’s involvement in the arrest.” (Id.) In particular, 1 Defendants Avalos and Rivera complain that the proposed allegations against Defendant Rivera, 2 to the extent they are based on the body-worn camera video, were known since April 13, 2023, 3 and amendment four months later is unreasonable delay. As to the proposed allegations against 4 Defendant Avalos, they contend that Plaintiffs should have known of these allegations since the 5 outset of the case. Defendants Avalos and Rivera also suggest that the proposed amendment 6 serves to take the place of Plaintiff Blanca Mendoza’s own trial testimony. To that end, 7 Defendants explain that Plaintiff Blanca Mendoza was unable to be deposed on more than a 8 couple of questions and she has now stipulated that she will not testify at trial. Defendants posit 9 that by the proposed amendment, “Plaintiffs are attempting to include allegations of Plaintiff 10 Blanca Mendoza that Defendants were never able to question her on.” (Id. at p. 5.) 11 Plaintiffs respond that that they moved swiftly upon learning that Deputy Dakotah 12 Fausnett was one of the officers captured on the body-worn camera footage and filed the instant 13 motion within weeks of Deputy Fausnett’s deposition. Plaintiffs further respond that although 14 they received the camera footage on April 13, 2023, they had to take numerous depositions over 15 several months to identify the officers on the video, and they “did not know that it was Defendant 16 Rivera who was [allegedly] kicking Plaintiff Brian Mendoza until well after April 13, 2023.” 17 (Doc. 75 at p. 3.) 18 As discussed above in the Rule 16 analysis, Plaintiffs were not aware of the involvement 19 of Deputy Fausnett until his deposition on July 27, 2023, and it appears they were only able to 20 confirm the identity the involved officers captured on the video though depositions taken after 21 receipt of the video in April 2023. Even if the Court were to find that Plaintiffs knew or should 22 have known of the facts raised by the proposed amendment at the outset of this action and that 23 Plaintiffs’ delay was therefore substantial, that factor alone would not be sufficient ground for 24 denial of leave to amend. E.g., United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981) (noting 25 that “delay alone no matter how lengthy is an insufficient ground for denial of leave to amend”). 26 Indeed, the Ninth Circuit has been clear that “delay, by itself, is insufficient to justify denial of 27 leave to amend.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). The Court 28 therefore finds that this factor alone does not weigh against amendment. 1 Bad Faith 2 A motion to amend is made in bad faith when there is evidence of a wrongful motive. See 3 DCD Programs, 833 F.2d at 187 (“Since there is no evidence in the record which would indicate 4 a wrongful motive, there is no cause to uphold the denial of leave to amend on the basis of bad 5 faith”); Trujillo v. SSSC, Inc., No. 1:21-cv-01691-ADA-BAM, 2023 WL 346801, at *3 (E.D. Cal. 6 Jan. 20, 2023) (finding nothing to suggest motion to amend made in bad faith in the absence of 7 evidence of any wrongful motive); Pizana, 2022 WL 1241098, at *10 (finding no bad faith in 8 absence of evidence of any wrongful motive). 9 Defendants Avalos and Rivera contend that Plaintiffs’ attempt to seek leave to amend this 10 late in the litigation is indicia of bad faith. According to Defendants Avalos and Rivera, 11 “Plaintiffs clearly desire to conduct additional discovery but failed to do so prior to the cutoff and 12 are using a Motion to Amend as a way around the Court’s Scheduling Order and the already 13 passed discovery cutoff. “ (Doc. 73 at p. 6.) Defendants contend that Plaintiffs were in the 14 possession of all the information necessary to assert their claims much earlier in the litigation and 15 a request to amend now only serves to re-open discovery against Defendants Avalos and Rivera, 16 which shows Plaintiffs are acting in bad faith. 17 The Court does not find evidence of bad faith or wrongful motive. Contrary to the 18 assertions of Defendants Avalos and Rivera, Plaintiffs are not attempting to reopen discovery. 19 Rather, Plaintiffs are seeking modification of the Scheduling Conference Order for the limited 20 purpose of amending their complaint to name the proper defendants involved in the subject 21 incident, dismiss unnecessary defendants, and otherwise streamline this action. As discussed 22 above, Plaintiffs received the body-worn camera video in April 2023, and were only able to 23 confirm Deputy Fausnett’s involvement in July 2023, shortly before filing this motion. There is 24 nothing to suggest that Plaintiffs are attempting to extend discovery or otherwise continue the 25 dispositive motion deadline or trial. Absent evidence of a wrongful motive, this factor does not 26 weigh against granting leave to amend. 27 Prejudice 28 Undue prejudice to the opposing party is the most important factor in deciding whether 1 leave to amend should be granted. Eminence Capital, LLC, 316 F.3d at 1052 (“As this circuit and 2 others have held, it is the consideration of prejudice to the opposing party that carries the greatest 3 weight.”). “‘Undue prejudice’ means substantial prejudice or substantial negative effect.” SAES 4 Getters S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D. Cal. 2002) (quoting Morongo 5 Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). The Ninth Circuit has 6 found such “substantial prejudice where the claims sought to be added ‘would have greatly 7 altered the nature of the litigation and would have required defendants to have undertaken, at a 8 late hour, an entirely new course of defense.’” Id. 9 Defendants Avalos and Rivera argue that the filing of a Second Amended Complaint will 10 be “substantially prejudicial because it will: (1) require more than a brief extension for the 11 discovery deadline, dispositive motion deadline, and trial date; (2) require Defendants to 12 redevelop a revised litigation strategy; and (3) increase future litigation expenses for Defendants.” 13 (Doc. 73 at p. 7.) Defendants Avalos and Rivera believe that allowing amendment will cause 14 prejudice by subjecting them to additional discovery and preventing them from cross-examining 15 Plaintiff Blanca Mendoza on the added allegations. (Id.) 16 Plaintiffs counter that they are not seeking additional discovery or further changes to the 17 Scheduling Conference Order. Plaintiffs do not believe that the amendment will require 18 Defendants Avalos and Rivera to alter their litigation strategy as Plaintiffs have continually 19 alleged that Defendants Avalos and Rivera employed excessive force. Finally, Plaintiffs contend 20 that the assertion of future litigation costs is unconvincing given that Plaintiffs are not seeking to 21 reopen discovery and the amended complaint will not require a change in litigation strategy. 22 The Court does not find undue or substantial prejudice in permitting the proposed 23 amendment. Plaintiffs have not requested reopening of discovery or additional modification of 24 the Scheduling Conference Order. Although Defendants Avalos and Rivera vaguely assert that 25 they will be subjected to additional discovery and additional litigation costs, they have not 26 explained how the proposed amendments will result in either additional discovery or costs. They 27 also have not adequately explained how their litigation strategy will differ given that Plaintiffs 28 have continually alleged excessive force against them throughout the course of this litigation. To 1 the extent Defendants Avalos and Rivera suggest that they will be unable to challenge any 2 allegations from Plaintiff Blanca Mendoza, there is no indication that Plaintiffs intend to file a 3 verified amended complaint or that Defendants Avalos and Rivera will be unable to challenge the 4 complaint’s amended allegations by way of a dispositive motion. The Court therefore concludes 5 that this factor does not weigh against granting leave to amend. 6 CONCLUSION AND ORDER 7 For the reasons explained above, IT IS HEREBY ORDERED as follows: 8 1. Plaintiffs’ motion to modify the Scheduling Conference Order and for leave to file a 9 Second Amended Complaint (Doc. 71) is GRANTED; and 10 2. Within fourteen (14) days of the date of this order, Plaintiffs shall file their Second 11 Amended Complaint, consistent with this order and their stipulation to clarify that 12 Defendants Avalos and Rivera work for the City of Hanford. 13 IT IS SO ORDERED. 14 15 Dated: October 11, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28