(PS) Chipman v. Nelson et al

Filing 403

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/11/15 ORDERING that plaintiff's request to subpoena state court documents #337 is denied; andd RECOMMENDING that: Defendant Kindred's motion to dismiss #338 be granted in part, and all of plaintiff's claims against Kindred, with the exception of her wrongful death claim, be dismissed without leave to amend; Defendant Lew and Avdalovic's motion #342 be granted in part, and all of plaintiff's claims against Lew and Avdalovic, with the exception of her wrongful death claim, be dismissed without leave to amend; Defendant Matthewss motion #345 be granted in part, and all of plaintiff's claims against Matthews, with the exception of her wrongful death claim, be dismissed without leave to amend; Defendant Potter, Valcarenghi, Wilms, Verma, Clark-Martin, Stansell, and Kasza's motions #340 , #341 , #343 , #344 , #347 be granted and plaintiff's claims against these defendants be dismissed without leave to amend; Plaintiff's motion for default judgment against defendant Merrifield #372 be denied; Defendant Merrifield's motion to set aside default #375 be granted, and her default be set aside. Referred to Judge Troy L. Nunley; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA
RICKIE L. CHIPMAN,
v.

MARCIA F. NELSON, M.D., ENLOE
MEDICAL CENTER, JOSEPH M.
MATTHEWS, M.D., GERARD R.
VALCARENGHI, M.D., DALE J.
WILMS, M.D., DINESH VERMA, M.D.,
ATTILA KASZA, M.D., JANE
STANSELL, DIRK POTTER, JULIE
CLARK-MARTIN, BRENDA BOGGSHARGIS, KINDRED HOSPITAL
SACRAMENTO, EVA LEW, M.D.,
MARK AVDOLAVIC, M.D., and DOES 1
through 25,

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ORDER AND FINDINGS AND
RECOMMENDATIONS

Defendants.

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Plaintiff,

No. 2:11-cv-2770-TLN-EFB PS

Presently before the court are numerous motions to dismiss and to strike plaintiff’s fifth

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amended complaint filed by several of the remaining defendants. 1 Specifically, defendant THC

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move to dismiss the complaint under Rule 12(b)(1) and 12(b)(6). ECF Nos. 338 and 345.

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Orange County dba Kindred Hospital Sacramento (“Kindred”) and defendant Joseph Matthews

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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Defendants Eva Lew, M.D. and Mark Avdalovic, M.D., and defendant Attila Kasza, M.D., move

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statement under Rule 12(e). ECF Nos. 342 and ECF No. 347. Likewise, defendants Gerard R.

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to dismiss the complaint under Rule 12(b)(6) and, in the alternative, move for a more definite

Valcarenghi, M.D., Dale J. Wilms, M.D., and Dinesh Verma, M.D. (ECF No. 341), and defendant
Julie Clark-Martin (ECF No. 343) move under the same rules. Defendant Jane Stansell moves to
dismiss the complaint for failure to state a claim and strike under the anti-SLAPP (Strategic

Lawsuit Against Public Participation) provisions set forth in California Civil Procedure Code

section 425.16 and, in the alternative, for a more definite statement. ECF No. 344. Defendant

Dirk Potter moves to strike the complaint under the anti-SLAPP provisions and, in the alternative,
to dismiss under Rule 12(b)(6). ECF No. 340.

Also pending before the court are plaintiff’s motion for default judgment against

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defendant Kimberly Merrifield (ECF No. 372), Ms. Merrifield’s related motion to set aside

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County Superior Court. ECF No. 337.2

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default judgment (ECF No. 375), and plaintiff’s request to subpoena court records from the Butte
For the reasons stated herein, plaintiff’s request to subpoena records is denied without

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prejudice. Further, it is recommended that defendants’ motions be granted in part, defendant

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denied.

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Merrifield’s motion to set aside default be granted, and plaintiff’s motion for default judgment be
I.

Procedural History

This action was commenced on October 20, 2011. ECF No. 1. It arises out of a dispute

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between plaintiff and defendants over the medical care provided to plaintiff’s mother, Mary A.

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defendants. ECF Nos. 12, 13, 15, 16, 17, 21, 22, 25, 27, 28, 29, 32, 38, 39; see also 20, 40, 41,

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Martin. Numerous motions to dismiss and to strike the original complaint were filed by various
44. On February 29, 2012, plaintiff filed a single, consolidated opposition to the multiple

motions. ECF No. 49. Plaintiff’s pleading purported to provide a “more definitive statement.”
The court determined that oral argument would not materially assist in the resolution of
the motions and therefore the matters were ordered submitted on the briefs. See E.D. Cal. L.R.
230(g).
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The pleading was therefore construed as a motion to amend the complaint, which was granted on
March 12, 2012. ECF No. 64.

On March 30, 2012, plaintiff filed a first amended complaint purporting to assert several

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causes of action against seventeen named defendants. ECF No. 74. All defendants moved to

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2013, it was dismissed with leave to amend, except as to claims barred by California’s litigation

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dismiss that complaint, ECF Nos. 76, 77, 78, 79, 80, 83, 85, 87, 94, 95, 96, and on March 28,
privilege, plaintiff’s claim under California Penal Code section 471.5, plaintiff’s false

imprisonment claim, and all claims against three defendants (Roberts, Calkins, and O’Mahoney),
which were dismissed without leave to amend. ECF Nos. 151, 152.

Plaintiff filed a second amended complaint (ECF No. 154) and various defendants again

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moved to dismiss. ECF Nos. 156, 157, 158, 161, 162, 163, 178. In response, plaintiff sent a

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amended complaint. ECF No. 179. So construed, the motion was granted and plaintiff filed a

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letter to the court (ECF No. 166) which was construed as a motion to amend plaintiff’s second
third amended complaint. ECF No. 180. Another round of motions to dismiss ensued, again

resulting in plaintiff requesting leave to amend her complaint. ECF No. 221. Plaintiff argued that
her third amended complaint omitted factual allegations necessary to support her claims. Id. at
2.3 That request, too, was granted. ECF No. 245. However, because plaintiff had been given
numerous opportunities to amend her complaint, she was admonished that further motions to
amend would be looked upon with disfavor. Id. at 3.

Plaintiff filed a fourth amended complaint, alleging claims on plaintiff’s behalf and on

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behalf of her deceased mother (the “decedent”). ECF Nos. 246, 247. That complaint also drew

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294. The undersigned recommended that plaintiff’s fourth amended complaint be dismissed

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various motions to dismiss and/or strike. ECF Nos. 248, 249, 253, 257, 258, 259, 262, 266, 277,
without leave to amend, finding that plaintiff failed to state any federal claims for relief and

recommending that the court decline to exercise supplemental jurisdiction over the complaint’s
/////

The page numbers cited herein refer to the page numbers assigned by the court’s case
management and electronic case filing (CM/ECF) system.
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state law claims. ECF No. 330. The recommendation was adopted in part and the complaint was

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Thereafter, plaintiff filed her fifth amended complaint. ECF No. 336. With the exception

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dismissed, but with further leave to amend. 4 ECF No. 334.

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of defendants Enloe Medical Center (“EMC”), Brenda Boggs, Marcia Nelson, and Kimberly

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another.5 Plaintiff has also moved for default judgment against defendant Kimberly Merrifield

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Merrifield, all defendants have moved to dismiss the fifth amended complaint in one form or

(ECF No. 372), and Ms. Merrifield has moved to set aside the entry of her default. ECF No. 375.
II.

Factual Allegations

Plaintiff, Ricki Chipman, alleges that she is a registered nurse residing in Washington

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State, and is the daughter and heir of Mary A. Martin (“the decedent”). Fifth Am. Compl., ECF

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designated to make medical decisions for the decedent. Id.

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No. 336 at 4. Prior to 2006, the year the decedent began to suffer from dementia, plaintiff was
In May 2010, the decedent was admitted to EMC after plaintiff had concerns that the

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decedent had sepsis. ECF No. 336 at 19. The decedent initially improved upon admittance to

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gastro-intestinal bleed, which was due to administering unnecessary anticoagulants. Id. The

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EMC. Id. However, plaintiff claims that the decedent eventually began to suffer from a lower
complaint alleges that plaintiff “witnessed physicians and staff at defendant EMC commit one
medical mistake after another and then defendants . . . attempted to cover the mistakes up by

performing unnecessary mutilating surgeries and procedures” by falsifying records, committing

perjury, and eventually initiating proceedings for a temporary restraining order (“TRO”) against
plaintiff and her family and for the appointment of a temporary guardian to make medical

Plaintiff’s objections to the findings and recommendations claimed that she just
discovered that she could not allege claims on behalf of the decedent without defeating diversity
jurisdiction. ECF No. 333 at 2. She further indicated that she wanted to abandon all claims on
behalf of the decedent and proceed in this court only with claims that are personal to her, which
would provide complete diversity in this action. Based on those representations, the court granted
plaintiff leave “to submit an amended complaint that states a state law cause of action personal to
her that is based on diversity jurisdiction.” ECF No. 334 at 4.
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Defendants EMC, Brenda Boggs, and Marcia Nelson filed an answer to the fifth
amended complaint. ECF No. 346.
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decisions on the decedent’s behalf. Id. at 20-21. Plaintiff claims that the TRO and
conservatorship were obtained by perjury and false information. Id. at 21.

On September 21, 2010, the decedent was transferred to Kindred Hospital Sacramento

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(“Kindred”). Id. at 22. The complaint alleges that Kindred did not have the diagnostic equipment

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be transferred to Mercy Medical Center in Folsom. Id. at 22-23. The transfer was denied by the

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and physicians to properly evaluate and treat the decedent, so plaintiff requested that the decedent
court appointed guardian, and on October 20, 2010, the decedent died. Id. at 22-23. Plaintiff
claims that the decedent’s death was due to receiving unnecessary anticoagulants, falsified

discharge assessments and failure to transfer the decent to an appropriate facility. Id. at 24-26.

Plaintiff further contends that the care provided to the decedent by the defendant physicians fell
below the applicable standard of care.
III.

Defendants’ Motions to Dismiss
A. Rule 12(b)(6) Standard

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint

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must contain more than a “formulaic recitation of the elements of a cause of action”; it must

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more

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contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell
. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of

action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235236 (3d ed. 2004)). “[A] complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)
(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. Dismissal is appropriate based either on the lack of cognizable
legal theories or the lack of pleading sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

In considering a motion to dismiss, the court must accept as true the allegations of the

complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe
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the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S. 869 (1969).

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its

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dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000); Noll v. Carlson, 809 F.2d

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defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before

1446, 1448 (9th Cir. 1987). However, although the court must construe the pleadings of a pro se
litigant liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985), that liberal

interpretation may not supply essential elements of a claim that are not plead. Pena v. Gardner,
976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268

(9th Cir. 1982). Furthermore, “[t]he court is not required to accept legal conclusions cast in the
form of factual allegations if those conclusions cannot reasonably be drawn from the facts

alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need

the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council
v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

In deciding a Rule 12(b)(6) motion to dismiss, the court may consider facts established by

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exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.

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Ct., 828 F.2d at 1338, and matters of public record, including pleadings, orders, and other papers

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1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr.
filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
B. Claims on Behalf of the Decedent

The fifth amended complaint alleges that plaintiff is the administrator for the estate of the

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decedent. ECF No. 336 at 2. The operative complaint, like plaintiff’s prior complaints, purports

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personally. See Dela Torre v. City of Salinas, 2010 WL 3743762, at *7 (N.D. Cal. Sept. 17,

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to assert several survival claims that belong to the estate of the decedent, and not plaintiff

2010) (“Unlike a wrongful death cause of action, a survival cause of action is not a new cause of

action that vests in heirs on the death of the decedent, but rather is a separate and distinct cause of
action which belonged to the decedent before death but, by statute, survives the event.”). Under
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California law, a survival action may be prosecuted by the decedent’s personal representative or

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Although plaintiff alleges that she is the personal representative and successor in interest

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successor in interest. Cal. Civ. Proc. Code § 377.30.

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for the decedent, this court has previously explained to plaintiff “the general rule prohibiting pro

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Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). While plaintiff can represent herself as to

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se plaintiffs from pursuing claims on behalf of others in a representative complaint.” Simon v.

any causes of action that belong to her, she may not represent other parties or entities, including

the decedent’s estate. The Ninth Circuit explained in Simon that the privilege to represent oneself

pro se is personal to the litigant and does not extend to other parties or entities. “Consequently, in
an action brought by a pro se litigant, the real party in interest must be the person who ‘by

substantive law has the right to be enforced.’” Id. (quoting C.E. Pope Equity Trust v. United
States, 818 F.2d 696, 697 (9th Cir. 1987)).

This court has also previously explained to plaintiff that she cannot proceed in this court

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with claims on behalf of the decedent because such claims would defeat complete diversity. 6

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County, California at the time of her death, and “the legal representative of the estate of a

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ECF No. 334. While plaintiff is a resident of Washington, the decedent was a resident of Butte
decedent shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C.

1332(c)(2). Accordingly, any claims brought by plaintiff on behalf of the decedent would render
this court without subject matter jurisdiction. Notwithstanding the court’s admonishments,
plaintiff continues to assert several claims on behalf of the decedent.
C. Plaintiff’s Claims

The fifth amended complaint purports to assert the following causes of actions: (1) willful

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misconduct; (2) elder abuse and negligence; (3) medical battery; (4) perjury; (5) malicious

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Plaintiff’s previous complaints alleged claims for violation of federal law. However, all
of plaintiff’s federal claims have been dismissed without leave to amend, and plaintiff was only
given leave “to submit an amended complaint that states a state law cause of action personal to
her that is based on diversity jurisdiction.” ECF No. 334 at 4. While the fifth amended complaint
does not allege any federal claims, it does purport to allege state law claims on behalf of the
decedent.
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prosecution/S.L.A.P.P; (6) interference with contract for economic advantage; (7) fraudulent
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concealment; (8) constructive fraud; (9) conspiracy; (10) violation of California CCP patient’s

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26-49.

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rights (11) intentional infliction of emotional distress, and (12) wrongful death. ECF No. 336 at
1. Willful Misconduct

Plaintiff’s complaint alleges a claim for willful misconduct against all defendants. ECF

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No. 336 at 26. Willful misconduct is not a separate tort, but is an aggravated form of negligence. 7

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owed a duty of care to the decedent, that they should have known the perils posed by failure to

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Berkley v. Dowds, 152 Cal. App. 4th 518, 526 (2007). Here, plaintiff alleges that each defendant
comply with the applicable standards, and that the defendants disregarded the perils and high

probability of injury and death to the decedent. ECF No. 336 at 27. Plaintiff further claims that
the defendants “failed to follow the health care decisions of Decedent’s health care agent,
Plaintiff, Rickie L. Chipman.” Id. at 27.

Thus, plaintiff’s willful misconduct claim is predicated on defendants’ alleged breaches of

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duty owed to the decedent, and not to plaintiff. This claim is not personal to plaintiff but rather

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her and cannot proceed in this court on claims on behalf of the decedent. Accordingly, her willful

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one that belonged to the decedent before her death. Plaintiff can only assert claims personal to
misconduct claim must be dismissed.

2. Elder Abuse and Negligence

Plaintiff also alleges claims for elder abuse and negligence against all defendants. ECF

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No. 336 at 31-33. These claims, again, stem from alleged injuries to the decedent. The complaint

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as a result the decedent sustained injuries, elder abuse, and wrongful death. Id. at 31. These

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alleges that the decedent was over the age of 65, that all defendants committed neglect, and that

Although the pleading requirements for willful misconduct are similar to a negligence
claim, they require more specific facts to state a claim for willful misconduct. Id. (citing Snider v.
Whitson, 184 Cal. App. 2d 211, 214-215 (1960) (plaintiff is required to “state facts more fully
than in an ordinary negligence claim.”)). “[T]he well-known elements of any negligence cause of
action [are] duty, breach of duty, proximate cause and damages.” Id. at 526. In addition, “three
essential elements must be present to raise a negligent act to the level of willful misconduct: (1)
actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive
knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3)
conscious failure to act to avoid the peril.” Id. at 528.
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allegations clearly demonstrate that the injured party was the decedent and therefore these claims

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can only assert claims on her behalf, does allege that she “sustained Intentional Infliction of

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belong to the decedent’s estate and not plaintiff personally. Plaintiff, apparently aware that she
Emotion Distress from the witnessing and knowledge” of defendants’ conduct. Id. at 31-32.

However, intentional infliction of emotional distress is a separate cause of action from elder abuse
and negligence, and plaintiff’s allegation that she sustained emotional injuries on account of
defendants’ conduct cannot transform claims belonging to the decedent’s estate into claims
personal to plaintiff.

Furthermore, the complaint does not contain any allegations to support a claim for

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negligence belonging to plaintiff. “The elements of a medical malpractice claim are: (1) the duty

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commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection

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of the professional to use such skill, prudence, and diligence as other members of his profession
between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting

from the professional’s negligence.” Avivi v. Centro Medico Urgente Medical Center, 159 Cal.

App. 4th 463, 468 n.2 (2008). While plaintiff generally alleges that defendants owed a “duty of

honesty,” she has failed to allege any facts demonstrating that these defendants owed her, as the
decedent’s daughter, a duty of care.8 See Rainer v. Grossman, 31 Cal. App. 3d 539, 543 (1973)
(“In the usual case of medical malpractice the duty of care springs from the physician-patient
relationship which is basically one of contract.”).

Accordingly, plaintiff’s claims for elder abuse and negligence must be dismissed.
3. Medical Battery

Plaintiff also asserts a claim for medical battery against defendants Matthews, Verma, and

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Wilms. ECF No. 336 at 33-35. Plaintiff contends that these physicians subjected the decedent to

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Wilms purposely withheld a necessary procedure, a thoracentesis, on June 13, 2010. Id. at 35.

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unnecessary surgeries and procedures. Id. at 33-34. The complaint further alleges that defendant

While defendant Dirk Potter, as plaintiff’s counsel, may have owed plaintiff a duty of
care, plaintiff’s cause of action for “elder abuse and negligence” does not include any specific
allegations against Mr. Potter.
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Again, these allegations concern harm suffered by the decedent, not plaintiff. 9 Thus, this claim
must also be dismissed.

4. Perjury

Plaintiff’s fourth cause of action is for perjury against defendants Nelson, EMC,

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Matthews, Verma, Clark-Martin, Boggs, Potter, Stansell, and Merrifield. California law does not

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Taylor v. Bidwell, 65 Cal. 489, 490 (1884)). Plaintiff therefore may not maintain her claim for

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recognize a civil action for perjury. Carden v. Getzoff, 190 Cal. App. 3d 907, 915 (1987) (citing
perjury against these defendants.

5. Malicious Prosecution/S.L.A.P.P.

Plaintiff’s fifth cause of action is entitled malicious prosecution/Strategic Lawsuit Against

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Public Participation (S.L.A.P.P.), and appears to be a claim for malicious prosecution against

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Merrifield. ECF No. 336 at 37-40. This claim arises out of these defendants’ involvement in

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defendants Nelson, EMC, Matthews, Verma, Clark-Martin, Boggs, Potter, Stansell, and

seeking a TRO and the appointment of a conservatorship to make medical decisions on behalf of
the decedent. Id. at 38-40.

This court previously concluded that plaintiff cannot pursue a claim for malicious

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prosecution against defendants in relation to the TRO and conservatorship proceedings. In

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Clark-Martin, Boggs, Nelson, Matthews, and EMC based on their roles in filing the action

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plaintiff’s first amended complaint, plaintiff alleged a claim for defamation against defendants
seeking a TRO. ECF No. 74 at 6-7. Those defendants moved to dismiss the defamation claim on
the ground that it was barred by California’s litigation privilege. ECF No. 76 at 12-14; ECF No.
80 at 11-12; ECF No. 134. The court found that the defamatory statements were all made to the
state court in seeking a TRO, and therefore were protected by California’s litigation privilege.

ECF No. 151. The court observed that the litigation privilege serves as an absolute bar, unless
plaintiff can allege malicious prosecution. Id. The record before the court established that

Plaintiff also attempts to salvage this claim by alleging that the defendants’ conduct
caused her intentional infliction of emotional distress. ECF No. 336 ¶ 115. As already explained
above, this allegation is insufficient to transform the claim into one that is personal to plaintiff.
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plaintiff could not succeed on a claim of malicious prosecution.

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the prior action (1) was commenced by or at the direction of the defendant and pursued to a legal

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with malice” Sagonowsky v. More, 64 Cal. App. 4th. 122, 128 (1998). This court found that

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“In order to state a cause of action for malicious prosecution the plaintiff must allege that

termination in plaintiff’s favor; (2) was brought without probable cause; and (3) was initiated

plaintiff could not state a claim for malicious prosecution because a court transcript, submitted

with the first amended complaint as an exhibit, demonstrated that the conservatorship case was

dismissed due to the decedent no longer being a patient at EMC, and thus EMC no longer having
an interest in pursuing the conservatorship. ECF No. 151 at 13; see ECF No. 74 at 62. Based on
these facts, plaintiff could not show that the prior action was pursued to a legal termination in

plaintiff’s favor. Thus, the court concluded that “plaintiff cannot allege a malicious prosecution
claim here” and plaintiff’s defamation claim was dismissed without leave to amend. 10

Although the court’s prior ruling was in relation to plaintiff’s claim for defamation, the

court nevertheless concluded that plaintiff cannot succeed on a claim for malicious prosecution.
Accordingly, this claim must also be dismissed.

6. Interference with Contract for Economic Advantage

Plaintiff also alleges a claim for interference with a contract for economic advantage

against defendants Nelson, EMC, Matthews, Verma, Stansell, Merrifield, Potter, Clark-Martin,
and Boggs. ECF No. 336 at 40-41.

“The elements which a plaintiff must plead to state the cause of action for intentional

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interference with contractual relations are (1) a valid contract between plaintiff and a third party;

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breach or disruption of the contractual relationship; (4) actual breach or disruption of the

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(2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a

The court’s March 13, 2013, findings and recommendations also found that
California’s anti-SLAPP statute was inapplicable to this case as plaintiff failed to allege that there
is currently a complaint against her. ECF No. 151; see Cal. Civ. Proc. Code § 425.16 (providing
a mechanism for dismissing SLAPP actions, which are pending lawsuits that “masquerade as
ordinary lawsuits but are brought to deter common citizens from exercising their political or legal
rights or to punish them for doing so,” before costly litigations ensues). The fifth amended
complaint also fails to allege that there is currently a complaint against plaintiff.
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contractual relationship; and (5) resulting damage.” Pacific Gas & Electric Co. v. Bear Stearns

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prospective economic advantage protects the same interest in stable economic relationships as

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& Co., 50 Cal. 3d 1118, 1126 (1990) (citations omitted). “The tort of interference with

does the tort of interference with contract, though interference with prospective advantage does
not require proof of a legally binding contract. The chief practical distinction between

interference with contract and interference with prospective economic advantage is that a broader
range of privilege to interfere is recognized when the relationship or economic advantage

interfered with is only prospective.” Id. (citations and fn. omitted). “To prevail on a cause of

action for intentional interference with prospective economic advantage in California, a plaintiff
must plead and prove (1) an economic relationship between the plaintiff and some third party,

with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of

the relationship; (3) the defendant’s intentional acts designed to disrupt the relationship; (4) actual
disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the
defendant’s acts.” Reeves v. Hanlon, 33 Cal. 4th 1140, 1152, n. 6 (2004) (citation omitted).

Plaintiff alleges that these defendants, in an attempt to prevent litigation for malpractice,

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falsified court documents in order to obtain a state guardian. ECF No. 336 at 40. Plaintiff further

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also claims that defendants breached their fiduciary duty to disclose information and that such

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alleges that defendants billed Medicare and Blue Shield for over 4 million dollars. Id. at 41. She
breaches were financially motivated. Id.

These allegations fail to state a claim for interference with a contract and/or economic

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advantage. Plaintiff does not allege the existence of an economic or contractual relationship

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claim must also be dismissed.

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between her and a third-party, nor has she alleged any economic damages. Accordingly, this
7. Fraudulent Concealment

Plaintiff also alleges a claim for fraudulent concealment against defendants Nelson, EMC,

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Matthews, Verma, and Potter. ECF No. 336 at 41-43.

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“The elements of an action for fraud and deceit based on concealment are: (1) the

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defendant must have concealed or suppressed a material fact, (2) the defendant must have been

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concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have

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under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally

been unaware of the fact and would not have acted as he did if he had known of the concealed or
suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff

must have sustained damage.” Boschma v. Home Loan Center, Inc., 198 Cal. App. 4th 230, 248
(2011). “In all averments of fraud . . . , the circumstances constituting fraud . . . shall be stated
with particularity.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough to give

defendants notice of the particular misconduct which is alleged to constitute the fraud charged so
that they can defend against the charge and not just deny that they have done anything wrong.”
Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). In addition to the “time, place and

content of an alleged misrepresentation,” a complaint “must set forth what is false or misleading

about a statement, and . . . an explanation as to why the statement or omission complained of was
false or misleading.” Yourish v. Cal. Amplifier, 191 F.3d 983, 993, n. 10 (9th Cir. 1999). The

complaint must also name the persons who made the allegedly fraudulent statements. See Morris
v. BMW of N. Am., LLC, 2007 WL 3342612, at *3 (N.D. Cal. Nov. 7, 2007) (citing In re Glenfed,
Inc. Sec. Litig., 42 F.3d 1541, 1547-48 n. 7 (9th Cir. 1994) (en banc)).

Plaintiff alleges that defendant Potter “knowingly concealed the fraudulent ex parte

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hearing of July 7, 2010 from Plaintiff and family,” and that he was under a legal and ethical duty

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and Verma, plaintiff alleges that they owed a duty of care to the decedent, and that they

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to provide notice to plaintiff and her family. ECF No. 336 at 41. As for defendants Matthews

“knowingly and maliciously concealed information regarding their malpractice, medical battery,
negligence, and self-interest,” and concealed “accurate information” to block the transfer of the
decent to Kindred Hospital Sacramento/Folsom.

These general allegations fail to comply with the enhanced pleading standard required for

stating a claim for fraud under Rule 9. Although plaintiff does allege the specific information that
Potter allegedly concealed, plaintiff provides no allegations indicating that Potter failed to notify
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plaintiff of the ex parte hearing “with the intent to defraud plaintiff.” See Boschma, 198 Cal.

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omission case by establishing that had the omitted information been disclosed, the plaintiff would

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App. 4th at 248. Plaintiff also fails to allege reliance. “Reliance can be proven in a fraudulent
have been aware of it and acted differently.” Id. at 250-251. Plaintiff provides no allegations

demonstrating that she would have acted differently had she been provided notice of the hearing.
Plaintiff’s general allegations that Verma and Matthews “maliciously concealed

7

information” and withheld “accurate information” also fall short of satisfying Rule 9’s heightened

9

omissions. Plaintiff’s complaint suggests that the defendant physicians made statements to hide

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pleading standard. Furthermore, plaintiff also fails to allege reliance as to these defendants’
their negligence and medical malpractice, not to deceive plaintiff and induce her reliance.
Accordingly, plaintiff fails to state a claim for fraudulent concealment.
8. Constructive Fraud

Plaintiff’s eighth cause of action is for constructive fraud and is alleged against defendants

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Nelson, EMC, Matthews, Verma, Kasza, Potter, Clark-Martin, Stansell and Merrifield. ECF No.

16

Under California law, “[c]onstructive fraud is a unique species of fraud applicable only to

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336 at 43-46.

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a fiduciary or confidential relationship.” Assilzadeh v. Cal. Fed. Bank, 82 Cal. App. 4th 399, 415

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even though his conduct is not actually fraudulent.” Salahutdin v. Valley of California, Inc., 24

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(2000). Under this theory of liability, “a fiduciary is liable to his principal for constructive fraud

Cal. App. 4th 555, 562 (1994). “[C]onstructive fraud comprises any act, omission or concealment
involving a breach of legal or equitable duty, trust or confidence which results in damages to

another even though the conduct is not otherwise fraudulent.” Assilzadeh, 82 Cal. App. 4th at

415. “Thus, constructive fraud mirrors actual fraud but replaces the requirement of scienter with

the requirement of a fiduciary duty.” Beco Dairy Automation, Inc. v. Global Tech Sys., Inc., No.
CV–F12–1310 LJO SMS, 2012 WL 4052066, at *8 (E.D. Cal. Sept. 14, 2012).

Aside from plaintiff’s conclusory statements that defendants owed her a duty of honesty,

plaintiff’s complaint is completely devoid of any facts indicating that defendants Matthews,

Verma, Kasza, Clark-Martin, and Stansell owed her a fiduciary duty. Although plaintiff does
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allege that Potter was hired as her attorney, she fails to allege sufficient facts to state a claim for

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Stipulation dated July 15, 2010, mirrors the same restrictive and harmful rules of Defendants

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constructive fraud against Potter. Plaintiff simply alleges that “defendant Potter’s fraudulent

EMC and Nelson’s memorandum, and is endorsed by defendants’ Stansell, Merrifield, and ClarkMartin’s signatures.” ECF No. 336 at 44. Plaintiff does not, however, allege what information

was concealed from her or explain how the stipulation was fraudulent, nor does she explain how
she was harmed by the July 15 stipulation. Accordingly, plaintiff has failed to state a claim for
constructive fraud.

9. Conspiracy

Plaintiff’s ninth cause of action is for conspiracy against defendants Nelson, EMC,

Matthews, Verma, Wilms, Valcarenghi, Kasza, Clark-Martin, Boggs, Potter, Stansell, and
Merrifield. ECF No. 336 at 46-47.

A conspiracy is not an independent cause of action, but is instead “a legal doctrine that

14

imposes liability on persons who, although not actually committing a tort themselves, share with

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Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-11 (1994); see also Entertainment Research Group,

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the immediate tortfeasors a common plan or design in its perpetration.” Applied Equip. Corp. v.

Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1228 (9th Cir. 1997). Thus, to properly state
a claim for imposing liability under a conspiracy basis, plaintiff must not only properly allege

facts showing the elements for the underlying cause of action, she must also satisfy the elements
for establishing conspiracy. Liability for civil conspiracy generally requires three elements: (1)

formation of a conspiracy (an agreement to commit wrongful acts); (2) operation of a conspiracy
(commission of the wrongful acts); and (3) damage resulting from operation of a conspiracy. Id.
at 511. A civil conspiracy is therefore activated by the commission of an underlying wrongful
act. Id.

Plaintiff alleges that these defendants conspired to illegally abduct the decedent from her

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family with perjury and fraudulent statements, and conspired to circumvent plaintiff’s legal right

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“Merrifield sent a letter, dated October 20, 2010, the day of Decedent’s wrongful death, stating

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to provide informed consent for her mother. ECF No. 336 at 46. She further alleges that
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the temporary guardians were to remain in place, thereby keeping her position in place.” Id.

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Cause of Actions [sic] as aforesaid herein, including intentional infliction of severe emotional

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Plaintiff further contends that these defendants’ “conspiracy set and kept in motion all other
distress, elder abuse and wrongful death.” Id. at 47.

As is the case with the vast majority of the claims, the conspiracy claim is predicated, at

6

least in part, on an injury sustained to the decedent. Again, plaintiff cannot assert a conspiracy

8

As for plaintiff’s contention that these defendants conspired to deprive plaintiff of her

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claim on the decedent’s behalf.

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rights to provide informed consent for her mother, such a conclusory allegation is insufficient to

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to an underlying cause of action. Instead, she simply concludes that the “conspiracy set and kept

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state a cause of action for conspiracy. Furthermore, plaintiff also fails to tie her conspiracy claim
in motion all other” causes of action. Plaintiff also does not allege any facts demonstrating an
agreement between the parties, nor does she allege the commission of wrongful acts in

furtherance of the agreement. Plaintiff simply concludes that the named defendants conspired to
violate her right to provide informed consent, and identifies a single letter sent by defendant
Merrifield. Such conclusory allegations fail to demonstrate the existence of a conspiracy.
10. Violation of California CCP Patient’s Rights

Plaintiff alleges that all defendants violated California Code of Regulation, Title 22,

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Section 70707 “when they intentionally isolated Decedent from her family . . ., and illegally

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alleges that defendants violated section 70707 by committing fraud, lying, committing perjury,

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removed Decedent’s designated health care decision maker. ECF No. 336 at 47-48. Plaintiff also
and altering the decedent’s records. Id.

Plaintiff does not allege that she was ever a patient, and it is clear from the complaint that

the only patient at issue in the complaint was the decedent. Thus, any rights that were violated
belong to the decedent and not to plaintiff. As such, this claim must also be dismissed.
11. Intentional Infliction of Emotional Distress

Plaintiff’s claim for intentional infliction of emotional distress is brought against all

defendants. ECF No. 336 at 48.

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“In order to establish a claim for intentional infliction of emotional distress under

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California law, [plaintiff is] required to show (1) that the defendant’s conduct was outrageous,

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emotional distress, and (3) that the plaintiff’s severe emotional suffering was (4) actually and

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(2) that the defendant intended to cause or recklessly disregarded the probability of causing

proximately caused by defendant’s conduct.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir.
2004). “Only conduct ‘exceeding all bounds usually tolerated by a decent society, of a nature

which is especially calculated to cause, and does cause, mental distress’ is actionable.” Brooks

v. United States, 29 F. Supp. 2d 613, 617-18 (N.D. Cal. 1998). Where defendant’s “conduct was
directed primarily at” plaintiff’s decedent, recovery is limited to “‘the most extreme cases of
violent attack, where there is some especial likelihood of fright or shock.’” Christensen v.

Superior Court, 54 Cal. 3d 868, 905 (1991) (quoting Ochoa v. Superior Court, 39 Cal. 3d 159,
165 n. 5 (1985), accord Coon v. Joseph, 192 Cal. App. 3d 1269 (1987)).

Plaintiff alleges that defendants’ conduct caused harm and the wrongful death of the

14

decedent, thereby causing plaintiff severe emotional distress. ECF No. 336 at 48. She further

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bounds of decency that is tolerated in a civilized society.” Id.

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claims that defendants’ “conduct was intentional, extreme, outrageous and beyond all possible
As the complained of activity is not directed towards plaintiff, but to a third-party, to

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qualify as actionable conduct, defendants’ activity against the decedent must be among “‘the most

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n.5). In essence, the complaint alleges that procedures performed on the decedent were

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extreme cases of violent attack.’” Christensen, 54 Cal. at 905 (quoting Ochoa, 39 Cal. 3d at 165

unnecessary, that the care provided was deficient, and that defendants impermissibly blocked the
transfer of the decedent to a facility that could provide her with adequate care. Such conduct is

akin to medical malpractice and is not, as plaintiff in conclusory fashion suggests, tantamount to a
violent attack or other extreme and outrageous conduct. Accordingly, plaintiff’s claim for
intentional infliction of emotional distress must be dismissed.
12. Wrongful Death

at 23.

Plaintiff’s last cause of action is for wrongful death against all defendants. ECF No. 336
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Wrongful death actions may be brought by a decedent’s children. Cal. Civ. Proc. Code

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§ 377.60(a). “The elements of the cause of action for wrongful death are the tort (negligence or

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suffered by the heirs.” Quiroz v. Seventh Ave. Center, 140 Cal. App. 4th 1256, 1263 (Cal. Ct.

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other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss

App. 2006); Wright v. City of Los Angeles, 219 Cal. App. 3d 318, 344, 358 (Cal. Ct. App. 1990).
For a wrongful death action to survive a motion to dismiss, “the complaint must contain

allegations as to all elements of actionable negligence.” Van Horn v. Hornbeak, 2009 WL

435104 (E.D. Cal. Feb. 19, 2009) (citing Jacoves v. United Merchandising Corp., 9 Cal. App.

4th 88, 105 (1992)). To allege professional negligence, plaintiff must allege (1) the duty of the
professional to use such skill, prudence, and diligence as other members of his profession

commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection

between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting

from the professional negligence. Fuentes v. County of Madera, 2006 WL 3087172 (E.D. Cal.

Oct. 30, 2006) (citing Elcome v. Chin, 110 Cal. App. 4th 310, 317 (Cal. Ct. App. 2003)). In terms
of causation, a defendant’s negligent act is only the cause of death where “in the absence of other

reasonable causal explanations, it becomes more likely than not that the injury was a result” of the
negligence. Fuentes, 2006 WL 3087172 (citing Jennings v. Palomar Pomerado
Health Systems, Inc., 114 Cal. App. 4th 1108, 1118 (Cal. Ct. App. 2003)).

The various defendants assert several arguments, many specific to the individual

defendant, as to the complaint fails to state a claim for wrongful death. The court addresses
various arguments below.
a)

Failure to Join Necessary Parties

Defendants Kindred, Potter, Lew, Avdalovic, and Matthews argue that this court has

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already determined that plaintiff cannot proceed on her claim for wrongful death without first

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joining her siblings, which would defeat this court’s diversity jurisdiction. 11

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Plaintiff’s sisters are residents of California.
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These defendants misinterpret the court’s prior rulings. 12

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amended complaint’s federal claims be dismissed for failure to state a claim and that the court

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Plaintiff filed objections to the findings and recommendations, indicating that she wanted to

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As noted above, on September 10, 2014, the undersigned recommended that the fourth

decline to exercise supplemental jurisdiction over the complaint’s state law claims. ECF No. 330.
abandon all claims on behalf of the decedent and proceed only on claims that were personal to
her, including a wrongful death claim. ECF No. 333.

The assigned district judge adopted the findings and recommendations, but, in light of

plaintiff’s representations, leave to amend was granted to allege state law claims personal to

plaintiff based on diversity jurisdiction. ECF No. 334. The order also noted that plaintiff may

encounter a hurdle to asserting a claim for wrongful death. Specifically, the order observed that
“[f]ederal courts have held that in wrongful death actions absent heirs are considered necessary
parties. [citation]. It appears from the allegations of the complaint that the decedent’s heirs are

residents of California and may not be jointed without defeating diversity jurisdiction.” ECF No.
332 at 3-4. Although the court noted this potential issue, the court did not expressly hold that

plaintiff cannot allege a claim in this court without defeating diversity. See id. Rather, the court
simply identified one hurdle plaintiff may face in asserting a wrongful death claim.

Although plaintiff’s siblings may be necessary parties, such a finding does not end the

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inquiry. In determining whether a case can proceed without a necessary party, a court must look

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absent party necessary (i.e., required to be jointed if feasible) under Rule 19(a)? 2. If so, is it

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to Rule 19, which governs joinder of parties. Rule 19 sets forth three-step inquiry: “1. Is the

feasible to order that the absent party be joined? 3. If joinder is not feasible, can the case proceed
without the absent party, or is the absent party indispensable such that the action must be

dismissed?” Salt River Project Agr. Imp. And Power Dist. v. Lee, 672 F.3d 1176 (9th Cir. 2012).
/////

Defendant Matthews does not advance any other argument in support of the wrongful
death claim alleged against him. As the court finds that this action can proceed with plaintiff’s
siblings, Matthews’s motion to dismiss is denied as to plaintiff’s wrongful death claim.
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Although federal courts have held that absent heirs are “necessary” parties, courts have also found

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not indispensable. See Backer v. United States, 2014 WL 4267500, at *2-3 (E.D. Cal. Aug. 29,

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that where an absent heir’s claim would be barred by the statute of limitations, the absent heir is

2014); A.D. v. California Highway Patrol, 2009 WL 733872, * at 4-5 (N.D. Cal Mar. 17, 2009);
Estate of Burkhart v. United States, 2008 WL 4067429, * 7-8 (N.D. Cal. Aug. 26, 2008).

Plaintiff’s siblings are necessary parties, but as indicated by the court’s prior order, joinder

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would defeat diversity jurisdiction and therefore is not feasible. However, it appears that any

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limitations. Since plaintiff’s claim for wrongful death against the medical defendants is based on

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wrongful death claim brought by plaintiff’s siblings would be barred by the applicable statute of
their alleged malpractice, California Code of Civil Procedure section 340.5 provides the

applicable statute of limitations for claims against the medical care providers. That section states:
In an action for injury or death against a health care provider based
upon such person’s alleged professional negligence, the time for the
commencement of action shall be three years after the date of injury
or one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the injury, whichever
occurs first. In no event shall the time for commencement of legal
action exceed three years unless tolled for any of the following: (1)
upon proof of fraud, (2) intentional concealment, or (3) the presence
of a foreign body, which has no therapeutic or diagnostic purpose or
effect, in the person of the injured person.

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Cal. Civ. Proc. Code § 340.5. As for a wrongful death claim against the defendants that are not

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335.1.

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medical care providers, the applicable statute of limitations is two years. Cal. Code. Civ. P. §

The complaint alleges that the decedent died on October 20, 2010. ECF No. 336 at 23.

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As the three year statute of limitations has now passed, the absent heir’s claims appear to be

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parties are not indispensable and that the claim can proceed in their absence. 13

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barred by the applicable statute of limitations. Accordingly, the court finds that these necessary
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In any event, none of the defendants specifically argue that plaintiff’s siblings, or any
other absent heir, are an indispensable.
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b) Defendant Kindred Hospital

Kindred also argues that this court lacks jurisdiction over plaintiff’s wrongful death claim

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because she asserts it in her capacity as the personal representative of the decedent’s estate, and

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The complaint does allege that plaintiff is the personal representative of the decedent’s estate.

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therefore she is considered a citizen of California under 28 U.S.C. 1332(c)(2). ECF No. 339 at 8.
ECF No. 336 at 1. However, she does not assert her wrongful death claim in that capacity. Thus,
she is free to bring it as an heir to the decedent. See Cal. Civ. Proc. Code § 377.60 (specifying

that children of the decedent can bring a wrongful death claim). Accordingly, Kindred’s motion
to dismiss should be denied as to plaintiff’s wrongful death claim.

c) Defendants Valcarenghi, Wilms, and Verma

Defendants Valcarenghi, Wilms, and Verma argue that plaintiff’s wrongful death claim

12

must be dismissed for failure to allege how any action or failures to act by these defendants

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fails to allege a proximate causal connection between the negligent conduct and the resulting

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caused the decedent’s death. ECF No. 341 at 19. They contend that the fifth amended complaint
injury. Id. These defendants contend that the complaint establishes that they treated plaintiff at
EMC up until September 21, 2010, and the decedent then spent the next month at Kindred
Hospital where she died on October 20, 2010. Id.

“[I]t is a fundamental principle of tort law that there must be a legal duty owed to the

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person injured and a breach of that duty which is the proximate cause of the resulting injury.”

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proximate cause of an injury is generally a question of fact, “it is a question of law where the

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Ileto v. Glock, Inc., 349 F.3d 1191, 1206. Although the determination as to whether an act is the
facts are uncontroverted and only one deduction or inference may reasonably be drawn from
those facts.” Id.

The operative complaint alleges that Valcarenghi, Verma, and Wilms were licensed

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physicians that provided medical care to the decedent at EMC. ECF No. 336 at 8-9. Plaintiff

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resulted in bruising and swelling. Plaintiff alleges that Valcarenghi suspected a possible blood

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claims that on May 4, 2010, a nurse misplaced a PICC line into the decedent’s arm, which
clot, and therefore prescribed high levels of anticoagulants. Id. at 24-25.
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Plaintiff further alleges that the decedent “died receiving anticoagulants at Defendant

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Kindred Hospital Sacramento based on Dr. Dinesh Verma’s falsified discharge assessment and

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an “urgent” tracheostomy for six days, and performed unnecessary and frequent bronchoscopies,

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transfer orders on September 21, 2010.” She also contends that Verma delayed performance of
which damaged the lungs. Id. at 34-35.

As for Dr. Wilms, plaintiff alleges that he withheld “a necessary procedure,” a

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thoracentesis, on June 13, 2010.” Id. at 35. She also claims that Wilms and Verma changed the

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further contends that all three of these physicians ordered excessive x-rays, which resulted in

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decedent’s medications to medications that were known to harm the decedent. Id. at 38. She
radiation burns and loss of hair. Id. at 34.

Although plaintiff generally alleges that these physicians engaged in conduct that caused

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harm to the decedent, aside from the purported false discharge assessment and transfer order, she

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specifically alleges that the decedent “died receiving anticoagulants at Defendant Kindred

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fails to allege that any of these act resulted in the decedent’s death. Although plaintiff

Hospital Sacramento,” these three defendants provided care at EMC. Furthermore, plaintiff

explicitly alleges that the decedent “survived the mal-practice of the intestinal bleed that was

noted to be due to blood thinners (anticoagulants)” prescribed by Valcarenghi. Id. at 49. Thus,

the excessive dose of anticoagulants administered by Valcarenghi was not the proximate cause of

the decedent’s death. As for the unnecessary procedures and delay in performing a tracheostomy,
plaintiff only alleges that these actions caused harm. Plaintiff even concedes that the withheld
“thorenscentesis” was eventually performed and that [f]ollowing [the] procedure, Decedent’s

heartrate came back to sinus rhythm (normal) at 80 BOM from the 130-140 BPM it had been for
hours, her breathing returned to normal, and she was able to rest.”

The complaint is also devoid of any explanation for how Dr. Verma’s alleged false

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discharge assessment and transfer order was the proximate cause of the decedent’s death.

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transfer order were false, or how such false statements contributed to the decedent’s death.

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Plaintiff fails to provide any factual allegations regarding how the discharge assessment and
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Thus, there are no facts in the complaint that would permit a fact finder to conclude that

the acts of these defendants caused the decedent’s death.
d) Defendant Kasza

Defendant Kasza also argues that plaintiff’s wrongful death claim fails for failure to allege

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a proximate causal connection between Dr. Kasza’s alleged negligence and the decedent’s death.

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a ‘Code Blue’ on June 15, 2010 to imply that Decedent had aspired and then required CPR, when

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ECF No. 347-1. Plaintiff alleges that Dr. Kasza falsified the decedent’s “medical records during
in fact, Decedent was caused to aspire during the aggressive CPR (witnessed by Plaintiff and

others), and then re-intubated, taken to ICU, and again placed on a ventilator.” ECF No. 336 at 910. Plaintiff further alleges that after Kasza admitted the decedent to the ICU, he gave her
“medications that were known to cause her harm.” Id. at 45.

These allegations simply demonstrate that in June 2010 Kasza performed aggressive CPR,

13

resulting in intubation, and that he prescribed “medications known to cause harm.” There are no

15

the proximate cause of the decedent’s death, which occurred four months later. Indeed, plaintiff

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factual allegations that, if accepted as true, would permit a jury to find that Kasza’s conduct was
does not explicitly contend that this conduct caused the decedent’s death. Accordingly, the
wrongful death claim against defendant Kasza must be dismissed.
e) Defendants Lew and Avdalovic

Defendant’s Lew and Avdalovic argue that plaintiff’s claim for wrongful death must be

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dismissed because plaintiff has failed to allege any loss beyond her severe emotional distress.

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pecuniary loss, which may include (1) the loss of the decedent’s financial support, services,

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ECF No. 342-1. “A plaintiff in a wrongful death action is entitled to recover damages for his own
training and advice, and (2) the pecuniary value of the decedent’s society and companionship—

but he may not recover for such things as the grief or sorrow attendant upon the death of a loved
one, or for his sad emotions, or for the sentimental value of the loss.” Quiroz v. Seventh Ave.
Center, 140 Cal. App. 4th 1256, 1264 (2006).

Although the complaint is replete with references to the emotional distress plaintiff

suffered on account of her mother’s death, she does not only seek damages for her emotional
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suffering. Plaintiff specifically seeks damages for the “loss of society and companionship,”

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Accordingly, defendants Lew and Avdalovic’s motion as to plaintiff’s wrongful death claim must

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which are available damages. ECF No. 336 at 50; Quiroz, 140 Cal. App. 4th at 1264.
be denied.

e) Defendants Potter, Clark-Martin, and Stansell

Defendants Potter, Clark-Martin, and Stansell also argue that plaintiff’s wrongful death

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claims against them fails because the operative complaint does not allege that they engaged in any

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at 14.

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conduct that caused plaintiff’s death. ECF No. 340-1 at 31; ECF No. 343 at 7-8; ECF No. 344-1
Here, the complaint fails to allege a direct link between Potter, Clark-Martin, and

Stansell’s conduct and the decedent’s death. These defendants are not healthcare providers, but
rather all acted as counsel in relation to the TRO and conservatorship proceeding.

Plaintiff alleges that defendant Clark-Martin committed perjury in relation to the state

14

court proceeding, and initiated a “Malicious Prosecution/Strategic Lawsuit Against Public

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A. Martin.” ECF No. 336 at 10-11. She further claims that defendant Stansell was appointed by

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Participation (S.L.A.P.P.) against Plaintiff Rickie L. Chipman and the family of Decedent Mary
the state court judge to represent the decent in regards to the TRO and conservatorship

proceedings. Id. at 11. As far as the court can discern, Stansell allegedly breach her duty to the
decedent by only visiting her three times and committing perjury in relation to the state court

proceeding by stating that the decedent “doesn’t speak to me your honor.” Id. at 11-12. Plaintiff
further contends that Stansell “withheld her own October 8, 2010 Declaration, . . . [that] should
have immediately allowed the rightful release of Decedent and return her to the care of Plaintiff

and her family to promote Decedent’s well-being.” Id. at 12. As for Potter, the complaint alleges
that he was retained as counsel to obtain a conservatorship on behalf of plaintiff’s sister and the

family. Id. at 14. “Potter breached his duty by collaborating with Defendant Julie Clark-Martin
prior to the July 15th hearing to further enforce” the TRO. Id.
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These factual allegations fail to demonstrate that any of these defendants contributed to

the decedent’s death. Rather, their involvement was limited to the state court proceedings, and
did not specifically involve treating decedent’s medical condition.

Moreover, plaintiff fails to demonstrate that defendants Potter and Clark-Martin owed any

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duty to the decedent. The complaint specifically alleges that Potter was plaintiff’s counsel, and

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represented the decedent or owed any duty to her.

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that Clark-Martin represented EMI’s interest in the TRO and conservatorship matter. Neither

Lastly, plaintiff’s wrongful death claims against these defendants stems, at least in part,

from statements made in state court, and such statements are protected by California’s litigation

privilege. California Civil Code section 47(b) provides that communications made in or related to
judicial proceedings are absolutely immune from tort liability. Cal. Civ. Code § 47(b). The

California Supreme Court explains that the purpose of the privilege is “to afford litigants . . . the

utmost freedom of access to the courts without fear of being harassed subsequently by derivative
tort actions.” Silberg v. Anderson, 50 Cal. 3d 205, 213 (1990). “The litigation privilege applies
to any communications (1) made in a judicial proceeding; (2) by litigants or other participants

authorized by law; (3) to achieve the objects of the litigation; (4) that have some connection or

logical relation to the action.” Sharper Image Corp. v. Target Corp., 425 F. Supp. 2d 1056, 1077
(N.D. Cal. 2006) (citing Silberg, 50 Cal.3d at 212). Once these requirements are met, section

47(b) operates as an absolute privilege. Silberg, 50 Cal.3d at 216. “Any doubt about whether the

privilege applies is resolved in favor of applying it.” Kashian v. Harriman, 98 Cal. App. 4th 892,
913 (2002).

Plaintiff claims that both Stansell and Clark-Martin made false statements to the state

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court in relation to the state court proceedings. Even if such statements were somehow

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privilege.

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responsible for the decedent’s death, they would nevertheless be protected by California’s ligation
For all of these reasons, plaintiff fails to state a wrongful death claim against defendants

Potter, Clark-Martin, and Stansell.
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D. Leave to Amend

Plaintiff has now submitted six different complaints. Although the court only addressed

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the sufficiency of the allegation in plaintiff’s first and fourth amended complaint, defendants have

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amendments. These motions provided plaintiff with notice of the pleading requirements and

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moved to dismiss the other amended complaints due to deficiencies necessitating multiple

identified various deficiencies in the complaints. Although plaintiff has been given numerous

opportunities to address the arguments raised by defendants, she continues to submit pleadings
that are disorganized, unintelligible, and lacking sufficient allegations to most of her purported

causes of actions, and claims that are simply barred as a matter of law. Accordingly, yet further
leave to amend is unwarranted.
IV.

Plaintiff’s Motion for Default Judgment and Merrifield’s Motion to Set Aside Default

Also pending before the court is plaintiff’s motion for default judgment against defendant

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Kimberly Merrifield. ECF No. 372. Merrifield, who had not previously appeared in this case,

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388. Merrifield argues that the clerk’s entry of her default should be set aside, and plaintiff’s

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filed an opposition and a related motion to set aside the clerk’s entry of default. ECF Nos. 375,
motion for default judgment denied, because she was never properly served. Id. at 2. As

explained below, the record demonstrates that Merrifield was not properly served in compliance

with Federal Rule of Civil Procedure 4, and therefore her motion to set aside entry default should
be granted and plaintiff’s motion for default judgment denied.

Plaintiff original complaint did not name Merrifield as a defendant to this action. ECF

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No. 1. It was not until October 29, 2014, more than three years after this action commenced, that

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first time. ECF No. 336. On December 2, 2014, plaintiff filed a proof of service as to Merrifield.

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plaintiff filed her fifth amended complaint, naming Merrifield as a defendant to this action for the
ECF No. 362. The proof of service’s caption page indicates that defendant Merrifield “was

served her copy of the complaint . . . on October 29, 2014.” ECF No. 2. The proof of service
form does not identify the specific documents that were served, but indicates that Kathryn

Tisdale, who is not a registered California process server, personally served documents on
Merrifield on October 29, 2014. ECF No. 362-1.

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On December 2, 2014, plaintiff requested the entry of Merrifield’s default (ECF No. 363),

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which the clerk entered on December 4, 2014. ECF No. 371. Plaintiff then moved for default

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375.

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judgment (ECF No. 372), and Merrifield subsequently moved to set aside her default. ECF No.
Under Rule 55(a), the court must enter default against a party who has “failed to plead or

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otherwise defend.” The court also has the power to set aside the entry of default “for good

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for good cause to set aside an entry of default under Rule 55(c) the same as the excusable neglect

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cause.” Fed. R. Civ. P. 55(c). The U.S. Court of Appeals for the Ninth Circuit treats the standard
standard for relief from judgment under Rule 60(b) (1). TCI Group Life Ins. Plan v. Knoebber,

244 F.3d 691, 697 (9th Cir. 2001); Franchise Holding II, LLC v. Huntington Restaurants Group,
Inc., 375 F.3d 922, 925–26 (9th Cir. 2004). In deciding whether good cause exists to set aside
default, the court considers: “(1) whether the plaintiff will be prejudiced, (2) whether the

defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the
default.” Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting

Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984)). This tripartite test is “disjunctive,” meaning that
the district court is free to deny the motion if any of these three factors is shown to exist.

American Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108–09 (9th Cir. 2000).
Of significance here, “[a] federal court does not have jurisdiction over a defendant unless

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the defendant has been served properly under Fed. R. Civ. P. 4.” Direct Mail Specialists, Inc. v.

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aside if the defendant was not served properly.” Hale v. Evidencia Display, 2015 WL 4624881,

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Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). “Entry of default must be set
at *2 ( C.D. Cal. Aug. 3, 2015).

Defendant Merrifield does not dispute that she received a copy of the fifth amended

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complaint from plaintiff. She explains, however, that she did not take any action upon receiving a

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ECF No. 375 at 3. She argues that default should be set aside because: (1) no summons was ever

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copy of the complaint because there was no summons included with the copy of the complaint.
issued by the court authorizing service on her; (2) no summons was delivered with the fifth
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amended complaint; and (3) service of process was defective and therefore this court lacks
jurisdiction. Id. at 375.

Under the Federal Rules of Civil Procedure, to effect service of process “[a] summons

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must be served with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). It is the plaintiff’s

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makes service. Id. Although “Rule 4 is a flexible rule that should be liberally construed so long

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responsibility to furnish the necessary copies of the summons and complaint to the person who
as a party receives sufficient notice of the complaint,” United Food & Commercial Workers

Union v. Alpha Beta Co., 376 F.2d 1371, 1382 (9th Cir. 1984), “without substantial compliance

with Rule 4 ‘neither actual notice nor simply naming nor naming the defendant in the complaint
will provide personal jurisdiction,’” Direct Mail Specialist, Inc., 840 F.2d at 688.

Plaintiff does not, and cannot, dispute that she failed to serve defendant Merrifield with a

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copy of a summons. Review of the court’s docket indicates that a summons was never issued as

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the filing of a complaint and payment of fees, it was ultimately plaintiff’s responsibility to obtain

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to defendant Merrifield. Although the clerk generally issues summons for each defendant upon
a copy of the summons as to Merrifield. Fed. R. Civ. P. 4(b).14 There is no indication that

plaintiff ever attempted to obtain a summons for Merrifield from this court. As plaintiff failed to
properly serve defendant Merrifield, her default must be set aside. Hale, 2015 WL 4624881, at
*2

In any event, the court finds good cause exists to set aside default. Merrifield moved to

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set aside entry of default less than a week after her default was entered. Although this action has

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action. Indeed, she was first named as a defendant in plaintiff’s fifth amended complaint, more

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been pending for almost four years, Merrifield cannot be blamed for the significant delays in this
than three years after plaintiff commenced this action.
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Fed. R. Civ. P. 4(b) provides as follows: “On or after filing the complaint, the plaintiff
may present a summons to the clerk for signature and seal. If the summons is properly
completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A
summons—or a copy of the summons that is addressed to multiple defendants—must issue for
each defendant to be served.”
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Furthermore, the court agrees with Merrifield that she may have meritorious defenses to

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plaintiff’s claims. As discussed above, the majority of plaintiff’s claims are brought in plaintiff’s

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court without defeating diversity jurisdiction.

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capacity as personal representative for the decedent, and such claims cannot be asserted in this
Lastly, Merrifield is not culpable for the entry of default. Plaintiff failed to obtain a

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summons from this court and effectuate proper service on Merrifield. Accordingly, Merrifield is

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default should be granted, and plaintiff’s motion for default judgment denied.

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not responsible for the entry of default. Therefore, defendant Merrifield’s motion to set aside
V.

Plaintiff’s Request to Subpoena Sealed Documents

Plaintiff requests the court to subpoena documents that were filed under seal in the Butte

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County Superior Court. ECF No. 337. Plaintiff explains that she was not permitted to attend the

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appointment of a conservatorship, and that the evidence submitted at this hearing has been filed

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July 7, 2010 ex parte hearing held in the Butte County Superior Court relating to the TRO and

under seal by a state court judge. Id. at 2. Plaintiff claims that the sealed documents are “critical

for oral argument and discovery with regard to the initial perjury that led to the wrongful death of
Plaintiff’s mother . . . and the Intentional Infliction of Severe Emotion Distress to Plaintiff.” Id.
at 2.15

Pursuant to Federal Rule of Civil Procedure 45, a subpoena must issue from the court in

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which the action is pending. Fed. R. Civ. P. 45(a)(1)(D)(2). “The clerk must issue a subpoena,

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service.” Fed. R. Civ. P. 45(a)(1)(D)(3). If the plaintiff intends to serve a subpoena that

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signed but otherwise in blank, to a party who requests it. That party must complete it before

commands the production of documents, prior to serving the subpoena the party must serve notice
and a copy of the subpoena on each party to the suit. Fed. R. Civ. P 45(a)(1)(D)(4). A court may
hold a party that fails to comply with its subpoena without adequate excuse in contempt of court.
Fed. R. Civ. P. 45(g).

Although the issue is not presently before the court, it is worth noting that the sealed
documents may not be relevant to this action as plaintiff has failed to state claims for perjury and
intentional infliction of emotional distress.
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Plaintiff’s request indicates that she has been unable to obtain the sealed documents

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despite her and her family’s multiple requests for the documents. ECF No. 337 at 2. Plaintiff,

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served the appropriate party with a subpoena. Thus, it appears that plaintiff, rather than following

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however, does not claim that she obtained a subpoena from the clerk of this court or that she

the procedures set forth in the Federal Rules of Civil Procures for subpoenaing documents from a
third party, simply wants this court to obtain discovery on her behalf. It is not the role of the

court to conduct discovery on behalf of plaintiff. Instead, she must follow the applicable rules,
which she has failed to do. Accordingly, plaintiff’s request is denied without prejudice.
V.

CONCLUSION

Accordingly, it is hereby ORDERED that plaintiff’s request to subpoena state court

documents (ECF No. 337) is denied.

Further, it is RECOMMENDED that:

1. Defendant Kindred’s motion to dismiss (ECF No. 338) be granted in part, and all of

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plaintiff’s claims against Kindred, with the exception of her wrongful death claim, be dismissed

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2. Defendant Lew and Avdalovic’s motion (ECF No. 342) be granted in part, and all of

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without leave to amend.

plaintiff’s claims against Lew and Avdalovic, with the exception of her wrongful death claim, be
dismissed without leave to amend.

3. Defendant Matthews’s motion (ECF No. 345) be granted in part, and all of plaintiff’s

claims against Matthews, with the exception of her wrongful death claim, be dismissed without
leave to amend.

4. Defendant Potter, Valcarenghi, Wilms, Verma, Clark-Martin, Stansell, and Kasza’s

motions (ECF Nos. 340, 341, 343, 344, 347) be granted and plaintiff’s claims against these
defendants be dismissed without leave to amend.

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denied.

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5. Plaintiff’s motion for default judgment against defendant Merrifield (ECF No. 372) be

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6. Defendant Merrifield’s motion to set aside default (ECF No. 375) be granted, and her

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default be set aside.

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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objections with the court and serve a copy on all parties. Such a document should be captioned

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These findings and recommendations are submitted to the United States District Judge

after being served with these findings and recommendations, any party may file written

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
within the specified time may waive the right to appeal the District Court’s order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: September 11, 2015.

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