G. v. Tulare County ( 2024 )

1 T. Kennedy Helm, IV (SBN 282319) HELM LAW OFFICE, PC 2 644 40th Street, Suite 305 Oakland, California 94609 3 T: (510) 350-7517 4 F: (510) 350-7359 email: kennedy@helmlawoffice.com 5 Attorney for Plaintiffs A.G. and F.G. 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 FRESNO DIVISION 10 A.G., a minor, by and through her guardian ad ) Case No. 1:23-cv-00500-JLT-SKO 11 litem Johana Yolanda Corral Galvan, ) 1 12 3 i D bn yed c aiv e ndi dd e u tn ha t r l F oly ur a ga nn hcd i h sa ecs ro gc Po uo- as n ru dcc ie ac , n e J s r as . d;o Fr l i.i tGn e m.i ,n at Je omr he i as nt no at ro , ) ) ) ) STIPULATION AND ORDER FOR Yolanda Corral Galvan, individually and as ) LEAVE TO FILE A SECOND AMENDED 14 co-successor in interest to Decedent Francisco ) COMPLAINT Ponce, Jr.; individually, ) 15 ) ) 16 Plaintiffs, ) ) 17 vs. ) ) 18 COUNTY OF TULARE, a public entity; and ) ) 19 DOES 1–50, jointly and severally, ) ) 20 Defendants. ) ) ) 21 ) ) 22 23 24 25 26 27 1 Plaintiffs A.G. and F.G., both minors, by and through their guardian ad litem Johana 2 Yolanda Corral Galvan, individually and as co-successor in interest to Decedent Francisco Ponce 3 Jr. (“Plaintiffs”); Defendants Wellpath, LLC, Andrew P. Ho, M.D., and Alla Liberstein, M.D. 4 (“Wellpath Defendants”); and Defendants County of Tulare, Jose Sanchez Perez, James Dillon, 5 and Rodrigo DeOchoa; all by and through their undersigned counsel of record, hereby stipulate 6 as follows: 7 RECITALS 8 1. Pursuant to this Court’s scheduling order (ECF No. 19), “[a]ll proposed amendments 9 must (A) be supported by good cause pursuant to Fed. R. Civ. P. 16(b) if the amendment requires 10 any modification to the existing schedule, see Johnson v. Mammoth Recreations, Inc., 975 F.2d 11 604, 609 (9th Cir. 1992), and (B) establish, under Fed. R. Civ. P. 15(a), that such an amendment 12 is not (1) prejudicial to the opposing party, (2) the product of undue delay, (3) proposed in bad 13 faith, or (4) futile, see Foman v. Davis, 371 U.S. 178, 182 (1962). 14 2. As to (A), the good-cause standard primarily considers the diligence of the party seeking 15 the amendment. Johnson, 975 F.2d at 609 (9th Cir. 1992). The focus of the inquiry is why the 16 moving party seeks to modify the complaint. Id. Here, Plaintiffs seek to amend their First 17 Amended Complaint to address the Wellpath Defendants’ claimed deficiencies so as to avoid the 18 filing of a motion to dismiss. Plaintiffs have diligently met and conferred with the Wellpath 19 Defendants regarding these matters, which has necessitated extensions of the Wellpath 20 Defendants’ deadline to file a responsive pleading. See ECF Nos. 42, 43, 44, 45. 21 3. As a result of these meet-and-confer efforts, Plaintiffs have agreed to file a proposed 22 Second Amended Complaint which: (1) clarifies that the conditions-of-confinement Fourteenth 23 Amendment claim at ¶ 62 is directed not at the Wellpath Defendants; and (2) does not contain a 24 Monell claim against Defendant Wellpath, LLC. In exchange, the Wellpath Defendants will file 25 an answer to Plaintiffs’ proposed Second Amended Complaint. 26 4. Plaintiffs and the Wellpath Defendants furthers stipulate that the Wellpath Defendants 27 1 will not use the lack of a Monell claim against Wellpath, LLC to object to Plaintiffs’ discovery 2 requests of Wellpath, LLC’s policies or procedures. 3 5. Plaintiffs and the Wellpath Defendants further stipulate that Plaintiffs may amend their 4 complaint to reassert a Monell claim against Defendant Wellpath, LLC, should discovery provide 5 grounds to do so. See Copart, Inc. v. Sparta Consulting, Inc., No. 214CV00046KJMCKD, 2016 6 WL 3126108, at *4 (E.D. Cal. June 2, 2016) (“Allowing parties to amend based on information 7 obtained through discovery is common and well established.”) (citations omitted). 8 6. As to (B), the Parties stipulate that Plaintiffs’ proposed Second Amended Complaint 9 satisfies the five factors from Foman v. Davis, 371 U.S. 178 (1962): (1) there is no undue 10 prejudice to the opposing party; (2) there has been no undue delay; (3) there is no bad faith or 11 dilatory motive by the movants, Plaintiffs; (4) there have been no repeated failures to cure 12 deficiencies by amendment; and (5) amendment is not futile. Eminence Capital, LLC v. Aspeon, 13 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 14 STIPULATION 15 Given the foregoing, the Parties stipulate that Plaintiffs may file the proposed Second 16 Amended Complaint, attached hereto as Exhibit 1. For the Court’s convenience, a redline 17 version is attached as Exhibit 2. 18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 19 Respectfully Submitted, 20 21 Dated: May 1, 2024 HELM LAW OFFICE, PC 22 /s/ T. Kennedy Helm, IV 23 By: T. KENNEDY HELM, IV Attorney for Plaintiffs A.G. and F.G. 24 25 Dated: May 1, 2024 GORDON REES SCULLY MANSUKHANI, LLP 26 27 1 /s/ Lindsey M. Romano* By: LINDSEY M. ROMANO 2 Attorneys for Wellpath Defendants 3 4 Dated: May 1, 2024 LEBEAU THELEN LLP 5 /s/ Gary L. Logan* 6 By: GARY L. LOGAN 7 Attorneys for Tulare County Defendants 8 *Ms. Romano and Mr. Logan provided their consent that this document be filed by CM/ECF. 9 10 ORDER 11 The Court, having considered the Parties’ stipulation, rules as follows: IT IS HEREBY 12 ORDERED that Plaintiffs may file the proposed Second Amended Complaint, attached to the 13 Parties’ stipulation as Exhibit 1, by no later than May 10, 2024. 14 IT IS SO ORDERED. 15 16 Dated: May 6, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27