Wilkins-Jones v. County of Alameda

Filing 204

ORDER by Judge Edward M. Chen Granting 176 Defendant's Motion for Summary Judgment; and Granting in Part and Denying in Part 187 Plaintiff's Motion for Leave to File First Amended Complaint. (emcsec, COURT STAFF) (Filed on 8/19/2011)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

SHAWNA WILKINS-JONES,

9

Plaintiff,
v.

11
For the Northern District of California

United States District Court

10

No. C-08-1485 EMC

COUNTY OF ALAMEDA,

12

Defendant.
___________________________________/

13

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT; AND GRANTING IN
PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR LEAVE
TO FILE FIRST AMENDED
COMPLAINT
(Docket Nos. 176, 187)

14
15

I.

INTRODUCTION

16

Defendant’s motion for summary judgment, Docket No. 176 (“Mot. for SJ”), and Plaintiff’s

17

motion for leave to file a first amended complaint, Docket No. 187 (“Mot. for Leave”), came on for

18

hearing before the Court on July 22, 2011.

19

Shawna Wilkins-Jones filed suit against the County of Alameda (“County”) on March 18,

20

2008, for violations of the California Disabled Persons Act (“CDPA”) and the Americans with

21

Disabilities Act (“ADA”). She alleges that she was denied access to jail policies and facilities for

22

disabled persons when she was arrested and detained on April 13, 2007, for six days. Compl. ¶¶ 1-2.

23

She seeks compensatory and injunctive relief under California and federal law. The Court has

24

dismissed Plaintiff’s claims for injunctive relief for lack of Article III standing, Docket No. 93, and

25

has granted summary judgment to Defendant with respect to her damages claims under the ADA and

26

Rehab Act, the Unruh Act, and California Government Code § 11135, Docket No. 169. Only her

27

state law claims for damages under the CDPA, Cal. Civ. Code § 54, remain.

28

1

Having considered the parties’ submissions and oral argument, the Court hereby GRANTS

2

Defendant’s motion for summary judgment, GRANTS in part and DENIES in part Plaintiff’s

3

motion for leave to file a first amended complaint, and enters the following order.

4

II.

FACTUAL AND PROCEDURAL BACKGROUND

5

Shawna Wilkins-Jones suffers from systemic lupus and rheumatoid arthritis. Joint Statement

6

of Undisputed Facts, Docket No. 134 ¶¶ 1-2. She has had both hips and her right knee replaced, and

7

rheumatoid arthritis has left her hands deformed. Id. ¶¶ 3-4, 28. She has limited mobility as a result

8

of her disabilities, though she has never been prescribed a walker or cane. Id. ¶ 12. Her doctor

9

describes her as “semi-ambulatory.” Id. ¶ 16. She takes several medications to manage her
symptoms. Id. ¶¶ 14-15.

11
For the Northern District of California

United States District Court

10

Plaintiff was arrested on April 13, 2007, after the California Highway Patrol (“CHP”)

12

stopped her for speeding and discovered a suspended license from a previous speeding incident and

13

an outstanding warrant for her arrest. Id. ¶¶ 21, 24-25. Police took her to Santa Rita Jail where

14

officers booked her at the intake counter. Id. ¶¶ 31-35. During the intake process, Plaintiff notified

15

a jail employee that she needed to take her medication, and the employee told her she would see a

16

physician as part of the intake process. Id. ¶ 36. Next, an officer brought her to a non-accessible

17

holding cell for several hours before she was fingerprinted and photographed. Id. ¶¶ 37-39. She

18

avers that she then waited in a communal, non-accessible holding cell, where it was difficult for her

19

to access the toilets and benches. Wilkins-Jones Supp. Decl. (“Supp. Decl.”), Docket No. 162, ¶¶

20

11-16. She needed assistance from other women in the cell in order to access the facilities and to get

21

up and down from the floor, where she had to lay in order to rest. Id. ¶¶ 12, 15.

22

At approximately 5:00 or 6:00 p.m., Plaintiff received an evaluation by Nurse Brown.

23

Docket No. 134 ¶ 44. Plaintiff did not notify the nurse that she was having any difficulty in the

24

holding cell and did not request an accessible toilet. Id. ¶¶ 47-48. Plaintiff did inform the nurse of

25

her medical conditions and received a prescription for Darvocet within an hour. Id. ¶ 50. Nurse

26

Brown also requested a bottom bunk for her and noted that handrails and stairs would be difficult for

27

her to use. FAC ¶ 27.

28

2

1

Plaintiff remained in the intake area for 32 hours before moving to the non-accessible

2

Housing Unit 25 at 6:39 pm on April 14, 2007, where she had a lower bunk on the lower tier of the

3

unit. Id. ¶¶ 55, 94. She states that she still had problems lifting herself from and lowering herself to

4

the toilets. Supp. Decl. ¶¶ 29-31. On April 15, Plaintiff wrote an “Inmate Message Request” to the

5

jail authorities. She stated, “I have systemic lupus and [rheumatoid arthritis]. Haven’t had meds for

6

3 days. In very bad pain not doing well at all.” Docket No. 134 ¶ 95. She saw medical personnel

7

and received Prednisone for the first time on April 16th.

8
9

On April 16th and 17th, Plaintiff was transported and forced to walk long distances to the
Wiley Manuel Courthouse, where she waited all day without seeing a judge. Id. ¶¶ 103-05; Docket
No. 169 at 3-4. She states that staff refused her requests for a wheelchair. Supp. Decl. ¶¶ 24, 34.

11
For the Northern District of California

United States District Court

10

She struggled to navigate the stairs, walkways, and vehicles during transport, and lagged behind the

12

group due to pain and stiffness. Id. ¶¶ 35-47, 50-55. She returned each night to the jail via the same

13

long walking path, and was released early on the morning of the 18th. Docket No. 169 at 4. She

14

alleges that she suffered from swelling, pain, and sores on her legs that lasted three to four months

15

after her release, and developed a urinary tract infection from avoiding the facilities. Supp. Decl. ¶

16

61.

17

On October 3, 2007, Plaintiff submitted a government claim against the County for

18

injunctive relief and damages. The claim was rejected on October 17, 2007. Docket No. 187 at 1-2.

19

She then filed her federal Complaint on March 17, 2008, seeking injunctive relief and damages

20

under the CDPA, ADA, and Unruh Act. Docket No. 1.

21

On February 17, 2010, Defendant moved to dismiss Plaintiff’s injunctive relief claims on the

22

grounds that she lacked Article III standing. Docket No. 65. While that motion was pending,

23

Plaintiff filed a motion for partial summary judgment on April 19, 2010. Docket No. 73. After

24

granting a stay of the summary judgment motion, the Judge Patel of this Court granted Defendants’

25

motion to dismiss as to the injunctive relief claims on May 28, 2010. Docket No. 93. Defendant

26

then filed a cross motion for summary judgment on July 26, 2010, Docket No. 109, which Judge

27

Patel granted in part and denied in part on November 26, 2010. Docket No. 169. The Court denied

28

Plaintiff’s summary judgment motion at the same time. In its Order, the Court granted summary

3

1

judgment to Defendant as to Plaintiff’s claims under Title II of the ADA, the Rehab Act, the Unruh

2

Act, and Cal. Govt. Code § 11135. The Court also found that Plaintiff’s denial of medication was

3

not actionable under the CDPA, and that because Plaintiff did not personally encounter any of the

4

County’s accessible facilities, Plaintiff could not assert any violations regarding those facilities.

5

However, with respect to Plaintiff’s CDPA claims, the Court found that issues of material fact

6

remained. Specifically, the Court made the following findings:

7

(1)
“[T]here is a genuine issue of material fact as to whether
plaintiff’s diagnoses substantially limited her ability to engage in
major life activities at the time of her detention by defendant.” Docket
No. 169 at 17. Thus, it was unclear without further factual
development whether Plaintiff met the first prong of an ADA violation
(which establishes a CDPA violation).
(2)
There is a “genuine dispute of material fact . . . as to whether
plaintiff was excluded from or denied the benefits of the County’s
services, programs or activities or otherwise discriminated against.”
Docket 169 at 18. Thus, prong two of the ADA/CDPA violation
required further factual development.
(3)
There is a “genuine dispute of material fact . . . as to whether
[any] such exclusion, denial of benefits, or discrimination was by
reason of her disability.” Docket No. 169 at 18. Thus, prong three of
the ADA/CDPA violation required further factual development.
(4)
“[A] genuine issue of material fact remains as to whether the
barriers identified in plaintiff’s evidence were in violation of state
building code provisions.” Docket No. 169 at 18-19. Thus, further
factual development was necessary to determine whether plaintiff can
demonstrate a CDPA violation via proof of a state building code
violation.

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18

Thus, following Judge Patel’s November 26, 2010 Order, only Plaintiff’s state law claims

19

under the CDPA remain. Defendant filed a second motion for summary judgment on April 1, 2011,

20

regarding those remaining claims. Docket No. 176. The case subsequently was reassigned to the

21

undersigned. Plaintiff filed a motion for leave to file the First Amended Complaint, adding new

22

defendants and claims, on June 17, 2011. Docket No. 187. Both are pending before this Court.

23
24

III.
A.

DISCUSSION

Defendant’s Motion for Summary Judgment

25

1.

26

“The court shall grant summary judgment if the movant shows that there is no genuine

Legal Standard

27

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

28

Civ. P. 56(a); see Anderson v. Liberty, 477 U.S. 242, 256-57 (1986); Celotex Corp. v. Catrett, 477

4

1

U.S. 317, 324 (1986). The Court construes all facts in favor of the nonmoving party, but a mere

2

scintilla of evidence will not suffice. Scott v. Hendrich, 978 F.2d 481, 484 (9th Cir. 1992).

3

Plaintiff can demonstrate a violation of the CDPA via two routes: (1) a violation of the ADA

Moeller v. Taco Bell Corp., 2007 WL 2301778 at *6 (N.D. Cal. Aug. 8, 2007). A successful claim

6

under the ADA prong requires Plaintiff to prove: “(1) he is a “qualified individual with a disability”;

7

(2) he was either excluded from participation in or denied the benefits of a public entity’s services,

8

programs, or activities, or was otherwise discriminated against by the public entity; and (3) such

9

exclusion, denial of benefits, or discrimination was by reason of his disability. Duvall v. County of

10

Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (citing Weinreich v. Los Angeles County Met. Transp.

11
For the Northern District of California

standard, Cal. Civ. Code § 54(c); or (2) a violation of state building code. Docket No. 169 (citing

5

United States District Court

4

Auth., 114 F.3d 976, 978 (9th Cir.1997)). In addition to demonstrating a violation under one of the

12

above two prongs, Plaintiff must also satisfy the “standing requirement”; that is, she must establish

13

that she “was denied equal access on a particular occasion.” Urhausen v. Longs Drug Stores Cal.,

14

Inc., 155 Cal. App. 4th 254, 262 (2007).

15

2.

16

Defendant maintains that summary judgment is proper because it is statutorily immune from

Statutory Immunities

17

Plaintiff’s claims under California Government Code §§ 845.2 and 844.6. Mot. for SJ at 2. As an

18

initial matter, Plaintiff argues that Defendant has waived any statutory immunity claims because it

19

did not raise them earlier in the litigation. Opp. to Mot. for SJ at 4. However, the California courts

20

have held that governmental immunity is jurisdictional, and a defendant may raise it at any time.

21

See Buford v. California, 104 Cal. App. 3d 811, 826 (1980) (“Since governmental immunity is

22

jurisdictional and can properly preclude a cause of action, we can appropriately address the

23

applicability of section 854.8.”).1 Therefore, the Court proceeds to the merits of Defendant’s claims.

24
25
26
27
28

1

Even if some notion of waiver or estoppel was available here, the Court finds that there is
no prejudice because Defendant is merely asserting legal defenses and has gained no strategic or
tactical advantage through its conduct.

5

1

a.

Govt. Code § 844.6

2

The County argues that Plaintiff can assert no CDPA damages claim for barriers she

3

encountered while detained because Government Code § 844.6 bars all claims for damages against a

4

public entity for injuries to a prisoner. Mot. for SJ at 4. Government Code § 844.6 states, in

5

relevant part, that “a public entity is not liable for . . . (2) An injury to any prisoner.” Cal. Govt.

6

Code § 844.6(a)(2).

7

The Court agrees. Section 844.6, by its plain terms, applies to this case and the courts have

8

afforded it a broad application. See Munson v. California, No. CIV S-09-0478, 2011 WL 284591, at

9

*3 (E.D. Cal. Jan. 25, 2011) (dismissing a plaintiff’s CDPA claim on the same grounds and
acknowledging that “California courts have held that the state is a ‘public entity’ under § 844.6 and

11
For the Northern District of California

United States District Court

10

that public entities are immune from liability for injury to a prisoner.”)2 (citing Teter v. City of

12

Newport Beach, 30 Cal. 4th 446, 448-49 (2003) (finding entity immune from suit by a prisoner who

13

was beaten by another prisoner); Savitt v. Jordan, 142 Cal. App. 3d 820, 812-22 (1983) (“Although

14

we agree that it is regret[t]able to grant immunity to a public entity after it has been proved to be

15

grossly negligent, we must conclude that this is the law. Section 844.6, subdivision (a) explicitly

16

provides that with the exception of certain enumerated sections the immunity granted to public

17

entities is absolute.”)).

18

Like the plaintiff in this case, Munson involved a disabled plaintiff who alleged that he had

19

been denied access to the shower, bathing, and restroom facilities while incarcerated. Munson, 2011

20

WL 284591 at *1. He alleged that he sustained long-term injuries as a result of the inaccessible

21

facilities, including bladder infections and injuries to his feet and buttocks. Id. The court found that

22

§ 844.6 conferred immunity on the State of California from liability under the CDPA. Id. at *3.

23

Munson is on point.

24
25

In fact, other courts have construed the broad statutory language granting immunity to public
entities to apply to other statutes similar to the CDPA. See Moyle v. County of Contra Costa, No.

26
27
28

2

The above citation refers to a Magistrate Judge’s report, which the District Court adopted
in full. See Munson v. California, No. CIV S–09–0478, 2011 WL 1114448 (E.D. Cal. March 28,
2011).

6

1

05-2324, 2007 WL 4287315, at *16 (N.D. Cal. Dec.5, 2007) (granting immunity under § 844.6

2

against Unruh Act and Bane Act claims); Martinez v. California, 2008 WL 4500131, at *5-6 (E.D.

3

Cal. Oct. 4, 2008) (dismissing claim against the state brought under California’s Elder Abuse and

4

Dependant Adult Civil Protection Act due to the state’s immunity under § 844.6); Cf. Bull v. San

5

Francisco, No. 03-1840, 2006 WL 449148, at *21 (N.D. Cal. Feb. 23, 2006) (finding that Cal. Penal

6

Code § 4030(p)’s grant of a private right of action to detainees for violations of strip search statute

7

prevailed over immunity of § 844.6 because it was more specific and enacted later). Indeed, the

8

California Supreme Court has confirmed that the Tort Claims Act renders liability for public entities

9

the exception, rather than the rule. See Teter v. City of Newport Beach, 30 Cal. 4th 446, 451 (2003)
(“[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against

11
For the Northern District of California

United States District Court

10

governmental entities, but to confine potential governmental liability to rigidly delineated

12

circumstances.”) (quotations omitted).

13

Plaintiff argues that even if § 844.6 technically applies to her, the Court should find that they

14

do not bar liability against these claims for damages. However, her arguments against immunity are

15

not persuasive.

16

First, she contends that principles of statutory construction favor a finding of no immunity.

17

Opp. to Mot. for SJ at 11. In this case, however, the statutory language is clear (especially § 844.6),

18

and as noted above, courts have emphasized that the Act’s reach is broad. See Holland v. City of

19

San Francisco, No. 10-2603, 2010 WL 5071597, at *8-11 (N.D. Cal. Dec. 7, 2010) (noting the

20

sweeping grant of immunity under § 844.6); Moyle v. County of Contra Costa, No. 05-2324, 2007

21

WL 4287315, at *16 (N.D. Cal. Dec.5, 2007). Moreover, because § 844.6 provides an explicit list of

22

exceptions,3 courts have applied principles of statutory construction to hold that any section not

23

specifically listed as an exception to 844.6 is barred under the doctrine of expressio unius est

24

exclusio alterius. See Moyle, 2007 WL 4287315 at *16 (“In light of the legislature’s choice to take

25

this narrow approach, it is reasonable to conclude that claims under Penal Code section 4030 and

26
27
28

3

See Cal. Govt. Code § 844.6 (“Notwithstanding any other provision of this part, except as
provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing
with Section 3500) of Part 3 of the Penal Code . . . .”).

7

1

Civil Code section 52.1 were not intended to be excluded under section 844.6, even though both of

2

those provisions were enacted after section 844.6.”).

3

Second, Plaintiff argues that the legislature intended the CDPA to provide the same level of

4

protection as the ADA, which applies to prisons. She contends that Government Code § 4450 and

5

the CDPA impose a specific duty on public entities that is not abrogated by § 844.6. Opp. to Mot.

6

for SJ at 12. However, as the California Court of Appeal has noted, “It is generally recognized that

7

a statutory governmental immunity overrides a statute imposing liability.” Gates v. Superior Court,

8

32 Cal. App. 4th 481, 510 (1995) (holding that § 845 precluded a claim of intentional racial

9

discrimination); see also Cal. Govt. Code § 815, Legis. Comm. Cmt. (“[T]he immunity provisions
will as a general rule prevail over all sections imposing liability.”); Moyle, 2007 WL 4287315 at *16

11
For the Northern District of California

United States District Court

10

(finding that the legislature has manifested an intent to grant full immunity unless it specifically

12

notes exceptions within the statute). Caldwell v. Montoya, 10 Cal. 4th 972, 986 (1995), clarified the

13

broad protections afforded by statutory immunity like § 844.6, stating,

14
15
16
17

[W]here the immunity provided by section 820.2 would otherwise
apply, that immunity cannot be abrogated by a statute which simply
imposes a general legal duty or liability on persons, including public
employees. Such a statute may indeed render the employee liable for
his violations unless a specific immunity applies, but it does not
remove the immunity. This further effect can only be achieved by a
clear indication of legislative intent that statutory immunity is
withheld or withdrawn in the particular case.

18
19

Id. The Court held that FEHA, which imposed a general prohibition of employment discrimination,

20

did not clear this high threshold. As the Court of Appeal explained in Gates v. Superior Court,

21

“[n]ormally, governmental immunities apply to statutes outside the Tort Claims Act which provide

22

for liability.” 32 Cal. App. 4th at 513. To override this general rule, the Legislature must “clearly []

23

decree[] that the provisions of the [statute] are to displace [the immunity].” Id.. See also Wigfall v.

24

City and County of San Francisco, No. C 06-4968, 2007 WL 174434, at *3 (N.D. Cal. Jan. 22,

25

2007) (“[T]he California Supreme Court imposes strict requirements for a statute to override a

26

government immunity: the legislature must ‘decree[ ] that the provisions of the [statute] are to

27

displace [the immunity].’”) (quoting Schmidt v. Superior Court, 48 Cal. 3d 370, 383 (1989)). Unless

28

the Legislature makes clear its intent to abrogate Tort Claims Act immunity, a statute of general

8

1

applicability like the CDPA does not overcome it. As in Gates and Wigfall, here Plaintiff has

2

presented no evidence that the legislature so intended when it enacted the CDPA, nor that any court

3

has construed the CDPA to override the government’s statutory immunity. See Gates, 32 Cal. App.

4

4th at 513 (“[W]e have not been provided with any legislative history or statutory language which

5

indicates an intention on the part of the Legislature to modify the sovereign immunity doctrine

6

which relates to [the conduct at issue].”).

7

Moreover, as in Caldwell, in this case, the statute’s relative specificity supports a finding of

facilities, whereas the CDPA more generally grants rights to disabled persons with respect to public

10

accommodations. Cf. Bull v. San Francisco, No. 03-1840, 2006 WL 449148, at *21 (N.D. Cal. Feb.

11
For the Northern District of California

immunity. Section 844.6 specifically relates to public liability for prisoner injuries and prison

9

United States District Court

8

23, 2006) (Cal. Penal Code § 4030(p)’s private right of action for violations of strip search statute is

12

more specific than the general immunity of § 844.6). The CDPA’s generality is insufficient to

13

abrogate § 844.6’s specific immunity.

14

Third, Plaintiff maintains that the statute does not bar liability because to do so would create

15

a right without a remedy, which is “strongly disfavored” in our judicial system. Opp. to Mot. for SJ

16

at 16. However, Plaintiff acknowledges that California law provides a remedy for every right

17

“unless a departure from the basic principle is mandated by a legislative exception or by strong

18

public policy.” Id. (quoting Boat & Motor Mart v. Sea Ray Boats, Inc., 825 F.2d 1285, 1290 (9th

19

Cir. 1987). Section 844.6 is just such a legislative exception, granting immunity for conduct that

20

would otherwise be actionable. Furthermore, § 844.6 does not preclude all liability for damages

21

under the CDPA. For instance, § 844.6 does not preclude the application of the CDPA to prisons in

22

action brought by non-prisoners (such as visitors).4 Nor does the CDPA preclude equitable relief

23

where standing is established.

24
4

25
26
27
28

In addition, Congress has abrogated the states’ immunity from claims under the ADA;
therefore, Plaintiff had the opportunity to bring claims for monetary damages under that statutory
regime. See Munson, 2011 WL 284591 at *2 (“Defendant concedes that it is well-settled in the
Ninth Circuit that Congress has validly abrogated the states’ Eleventh Amendment immunity in
enacting the ADA and RA.”). In this case, however, the Court has already granted summary
judgment to Defendant on Plaintiff’s ADA claim because she had failed to meet “her burden of
producing evidence from which the trier of fact could reasonably find that defendant acted with
deliberate indifference.” Docket No. 169 at 13.

9

1

Fourth, Plaintiff argues that the Tort Claims Act (“Act”) as a general matter does not confer

2

immunity for statutory damages claims under the CDPA. Opp. to Mot. for SJ at 16. Plaintiff cites

3

to Kizer v. County of San Mateo, 53 Cal. 3d 139 (1991), as support for her position that the Act is

4

designed only “to limit governmental liability for actual compensatory damages in tort cases,” Opp.

5

to Mot. for SJ at 17, and does not operate to preclude statutory penalties that “motivate compliance

6

with statutes and regulations.” However, Kizer is inapposite. Kizer dealt with a state-imposed

7

citation (by the Department of Health Services) on a county long-term health care facility for

8

violations of the Health and Safety Code.5 Unlike this case, it did not address any portion of the

9

Tort Claims Act that precluded liability entirely; rather, it simply analyzed the applicability of §
818’s prohibition on exemplary and punitive damages against government entities and determined

11
For the Northern District of California

United States District Court

10

whether that statute also precluded civil penalties imposed against the health care facility under the

12

Health and Safety Code. The California Supreme Court held that § 818’s bar of punitive damages

13

applied only to those damages sounding in tort; i.e., those punitive damages that are based on a

14

predicate finding of actual harm. 53 Cal.3d at 145-46. Therefore, the penalties at issue in Kizer fell

15

outside the scope of the Tort Claims Act entirely:

16

Under the Long-Term Care, Health, Safety, and Security Act of 1973,
the essential prerequisite to liability is a violation of some minimum
health or safety standard rather than ‘injury’ or ‘damage.’
Consequently, we do not believe that the Legislature intended the
immunity created by Government Code section 818 to apply to
statutory civil penalties expressly designed to enforce minimum health
and safety standards.

17
18
19
20

Id. at 146; see also Reply at 11. The Court pointed out that no harm was necessary to bring a

21

successful claim under the applicable Health and Safety Code provision; that such an action did not

22

sound in tort brought it outside the scope of the Tort Claims Act.

23

Kizer’s reasoning thus distinguishes between any action sounding in tort–i.e., an action

24

focused on harm to an individual–and an action under a statute such as the Long-Term Health Care

25

Act, which requires no showing of harm. While Plaintiff contends that her claims are not similar to

26

tort actions, to make out a CDPA violation (even under the CDPA prong for violations of a state

27
28

5

The statute also created a private right of action should the state fail to act.

10

1

building code), a plaintiff must demonstrate harm–i.e., that she was denied access on a particular

2

occasion. The monetary relief sought is based on compensation for the harm. The character of her

3

CDPA claims thus sounds in tort. Kizer is therefore inapposite.

4

Lastly, Plaintiff argues that § 844.6 does not release every claim in this case. Specifically,

prisoner. Section 844 defines prisoner as “an inmate of a prison, jail, or penal or correctional

7

facility. For the purposes of this chapter, a lawfully arrested person who is brought into a law

8

enforcement facility for the purpose of being booked . . . becomes a prisoner, as a matter of law,

9

upon his or her initial entry into a prison, jail, or penal or correctional facility, pursuant to penal

10

processes.” Cal. Govt. Code § 844. Plaintiff argues that at least some of her claims stem from

11
For the Northern District of California

she argues that it ceased to confer immunity on Defendant the moment Plaintiff was no longer a

6

United States District Court

5

events that occurred after she ceased being a prisoner. In Fearon v. Dept. of Corrections, for

12

example, the California Court of Appeal held that a plaintiff was not barred from bringing a cause of

13

action for conversion when the incident occurred on the day he was released on parole and was

14

therefore no longer a prisoner. 162 Cal. App. 3d 1254, 1257 (1984) (“[A] person on the way to

15

prison and a parolee on the way out of prison are not prisoners and are not, therefore, barred from

16

bringing a tort action against a public entity.”). Similarly, once Plaintiff was released and leaving

17

jail, 844.6 would no longer apply.

18

The Court agrees that § 844.6, on its own, does not release all of her claims. Plaintiff was

19

released from custody on April 18, 2007 at 4:00 am. McGuinness Decl., Exh. E. Any barriers she

20

encountered before that time are thus barred by defendant’s immunity.6 See Badiggo v. County of

21

Ventura, 207 Cal. App. 3d 357, 361 (Cal. Ct. App. 1989) (holding that an inmate who fell down an

22
23
24
25
26
27
28

6

Plaintiff’s attorney claims that “there is circumstantial evidence that plaintiff was released
on her own recognizance (OR) by the superior court on April 17, 2007.” McGuinness Decl., Docket
No. 194 19. In addition, Ms. McGuinness states, “[T]here is evidence that plaintiff’s warrant for
failure to appear on the petty theft was released at 6:44 p.m. on April 17, 2011.” Id. 20. However,
as Defendant points out, Plaintiff appears to misread the record. According to Exhibit E of Ms.
McGuinness’s declaration, plaintiff was released on one of her charges, CEN 7229577, at 6:44pm on
April 17, 2007. That code correlates with California Vehicle Code § 14601.1(a), or driving with a
suspended license. See Reply at 6. However, Exhibit E shows that Plaintiff was not released on her
second charge, CEN 7229579, until 4:00 am on April 18, 2007. That code is for Penal Code §
484/487, or petty theft. Therefore, Plaintiff was not fully released from custody until April 18, 2007
at 4:00 am. McGuinness Decl., Exh. E.

11

1

internal stairway on the way to check out for a work furlough program was a prisoner because “he

2

was still restrained and not permitted to leave the facility until he checked out at 11:30 p.m.”).

3

However, any barriers encountered after her release would fall outside the immunity provisions of

4

844.6. For example Plaintiff used the handrail and exit ramp on the outside of the prison (leading to

5

the BART station) when she had ceased being a prisoner. Opp. to Mot. for SJ at 22. Thus, any

6

claims relating to those facilities would not be covered under § 844.6. Accordingly, the Court finds

7

that § 844.6 grants immunity to the County from Plaintiff’s claims for damages to the extent that

8

they arise from her time as a prisoner.

9

Govt. Code § 845.2

In the case at bar, any of Plaintiff’s remaining claims against the County left untouched by §

11
For the Northern District of California

United States District Court

10

b.

844.6, however, are covered by § 845.2. Government Code 845.2 states, “Except as provided in

12

Chapter 2 (commencing with Section 830), neither a public entity nor a public employee is liable for

13

failure to provide a prison, jail or penal or correctional facility or, if such facility is provided, for

14

failure to provide sufficient equipment, personnel or facilities therein.” Courts have applied the

15

statute to bar claims for inadequate security systems, Taylor v. Buff, 172 Cal. App. 3d 384 (1972),

16

insufficient personnel, Estate of Abdollahi v. County of Sacramento, 405 F. Supp. 2d 1194 (E.D.

17

Cal. 2005); Silverbrand v. Woodford, 2010 WL 3635780 (C.D. Cal. 2010), and failure to provide

18

programs, Ashker v. Schwarzenegger, 2009 WL 801557 (N.D. Cal. 2009). Moreover, absolute

19

immunities such as § 845.2 “apply to both ministerial and discretionary acts.” Gates v. Superior

20

Court, 32 Cal. App. 4th 481, 507 (Cal. Ct. App. 1995) (citing Kisbey v. State of California, 36

21

Cal.3d 415, 418-419 (1984); County of Sacramento v. Superior Court, 8 Cal.3d 479, 481-484

22

(1972)).

23

The Court agrees with Defendant that § 845.2 applies to claims for monetary damages in

24

situations like Plaintiff’s in this case, in which the County allegedly failed to provide access to

25

certain facilities and equipment on a discriminatory basis. In Gates v. Superior Court, supra, 32

26

Cal. App. 4th at 487, for example, the California Court of Appeal held that § 845 barred a claim of

27

intentional racial discrimination under the Unruh Civil Rights Act for the alleged “discriminatory

28

deployment of police officers during a riot.” The Court held that discrimination in the use of police

12

1

resources, even if intentional, did not abrogate the immunity from monetary damages granted by §

2

845 against liability “for failure to provide [any or] sufficient police protection service.” Id. at 494;

3

see also Ashker v. Schwarzenegger, No. 05-3286, 2009 WL 801557, at *1, 24 (N.D. Cal. Mar. 25,

4

2009) (describing § 845.2 as barring “suit for failure to provide prison programs,” and applying it to

5

bar plaintiffs’ state law claims against the defendant for failing to provide access to programs that

6

were available to inmates housed in a different area).

7

Plaintiff’s argument that § 845.2 does not preclude claims for discriminatory policies is

8

unavailing. Opp. to Mot. for SJ at 18-19. Section 845.2 immunity is not confined to physical

9

facilities-based claims. Indeed, many cases focus on the failure of a facility to implement policies
allowing inmates access to certain programs and services. See Ashker v. Schwarzenegger, No.

11
For the Northern District of California

United States District Court

10

05-3286, 2009 WL 801557 (N.D. Cal. 2009) (no liability for denial of access to certain programs);

12

Moore v. Baca, No. 10-3552, 2002 WL 31870541 (C.D. Cal. 2002) (no liability for failure to

13

racially segregate inmates); Gates v. Superior Court, supra, 32 Cal. App. 4th at 487 (no liability for

14

failure to adequately train and deploy officers)). Therefore, this argument is unpersuasive.

15

Accordingly, between § 844.6 and § 845.2, all of Plaintiff’s remaining claims for monetary

16

damages against the County are barred by statutory immunity. The Court therefore GRANTS

17

Defendant’s motion for summary judgment.

18

B.

Plaintiff’s Motion for Leave to File Her First Amended Complaint

19

Plaintiff filed a motion for leave to file her first amended complaint adding new defendants

20

on June 17, 2011. Docket No. 187. She argues that she should be granted leave to amend because,

21

until she received discovery, she mistakenly believed that the County was solely responsible for the

22

jail’s policies relating to disabled prisoners. Mot. for Leave at 14. She also argues that amendment

23

would not prejudice the proposed new defendants because they have had notice of this action and

24

the Court has yet to set litigation deadlines or a trial date. Id. at 15. Defendant responds that

25

Plaintiff has unduly delayed filing her motion for leave because she had sufficient information to do

26

so at least a year ago, if not more. Opp. at 4-7. Furthermore, Defendant contends that amendment

27

would be futile because the new claims would not relate back and many would be barred by

28

statutory immunity or this Court’s prior orders in this case. Id. at 7-14.

13

1

1.

2

Rule 15(a) provides for liberal pleading standards, mandating that leave to amend “shall be

3

freely given when justice so requires.” Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Fed. R.

4

Civ. P. 15(a)(2)). The Ninth Circuit has interpreted this rule to mandate that leave to amend is “to

5

be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712

6

(9th Cir. 2001) (citation omitted). The district court has discretion to deny a motion for leave to

7

amend, but it must provide some justification for that denial. Foman, 371 U.S. at 182. “In

8

exercising its discretion, a court must be guided by the underlying purpose of Rule 15-to facilitate

9

decision on the merits, rather than on the pleadings or technicalities.” Eminence Capital, LLC v.

Legal Standard

Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003). The four principle justifications a nonmoving

11
For the Northern District of California

United States District Court

10

party can demonstrate in order to prevent leave to amend are “bad faith, undue delay, prejudice to

12

the opposing party, and futility of amendment.” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th

13

Cir. 1991).

14

Even if the Court grants leave to amend, Plaintiff’s claims will nonetheless be time-barred

15

unless they relate back to the original complaint under Rule 15(c). Rule 15(c) provides that an

16

amendment adding a new defendant will relate back to the original complaint if it “asserts a claim or

17

defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in

18

the original pleading,” and if, within 120 days of the initial complaint, the party to be added

19

“received such notice of the action that it will not be prejudiced in defending on the merits” and

20

“knew or should have known that the action would have been brought against it, but for a mistake

21

concerning the proper party’s identity.” Rule 15(c)(1)(C).

22

In contrast to the discretion afforded to the Court under 15(a), once the Court grants leave to

23

amend, relation back under 15(c) is mandatory if the party satisfies its criteria, regardless of whether

24

Plaintiff has been diligent. See Krupski v. Costa Crociere S.p.A., 130 S.Ct. 2485, 2496 (2010) (“As

25

the contrast between Rule 15(a) and Rule 15(c) makes clear, however, the speed with which a

26

plaintiff moves to amend her complaint or files an amended complaint after obtaining leave to do so

27

has no bearing on whether the amended complaint relates back.”). Thus, technically Rule 15(c) only

28

comes into play once the Court grants leave to amend. However, whether Plaintiff’s amended

14

1

complaint would relate back remains relevant to the Court’s determination as to whether amendment

2

would be futile. Therefore, the Court addresses the relation back question in the context of the

3

futility analysis.

4

2.

5

Plaintiff’s primary amendments are to add new defendants to the action. Specifically, she

Plaintiff’s Proposed Amendments

6

seeks to add: Gregory Ahern as an individual and as Sheriff of Alameda County; Lt. James Farr,

7

Deputy Sheriff; PHS (Prison Health Services) Correctional Healthcare, a for-profit business

8

contracting with the County to provide medical services to inmates; Melissa Brown, LVN, a nurse

9

and PHS employee; Martha Campos, M.D., a PHS employee; and Bill Wilson, M.D., a PHS
employee. See Mot. for Leave at 3. The proposed additional causes of action are:

11
For the Northern District of California

United States District Court

10

(1)
Damages under Civil Code § 54 (CDPA), against Gregory
Ahern as an individual and as Sheriff of Alameda County, Lt. James
Farr, PHS Correctional Healthcare, Melissa Brown, Martha Campos,
and Bill Wilson;
(2)
Injunctive relief and damages under Civil Code § 55 for
violation of §§ 54 and 54.1, against Ahern, Farr, Wilson, and PHS;
(3)
Injunctive relief and damages under Civil Code § 51, the
Unruh Act, against PHS, Brown, Campos, and Wilson;
(4)
Damages under the CDPA for violation of Title III of the
ADA, against PHS, Brown, Campos, and Wilson; and
(5)
Damages under Title II of the ADA, against Ahern, Farr, PHS,
Brown, Campos, and Wilson.

12
13
14
15
16
17
18
19

Defendant argues that both undue delay and futility justify denying leave to amend. The
Court will address each in turn.

20

3.

21

A party seeking to amend its pleadings must explain any delay in seeking the amendment.

Undue Delay

22

See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (finding that a

23

district court had not abused its discretion in denying leave to amend in part due to a two-year

24

delay). A delay may be undue if the “moving party knew or should have known the facts and

25

theories raised by the amendment in the original complaint.” AmerisourceBergen Corp. v. Dialysist

26

West, Inc., 465 F.3d 946, 953 (9th Cir. 2006). However, while relevant, delay is typically “not alone

27

enough to support denial.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th

28

Cir. 1990).

15

1

In this case, Plaintiff has known of the additional defendants she seeks to add for over a year.

2

See, e.g., Boley Decl., Docket No. 197-1 at 11 (excerpting Lt. Farr’s deposition, in which he

3

affirmed that he was the person most knowledgeable regarding “accommodating disabled persons at

4

[the facilities] and [] providing defendant’s programs, services and activities to mobility impaired

5

patients at” the jail); Opp. to Mot. for Leave at 1-2 (describing Plaintiff’s knowledge of Dr. Campos,

6

Dr. Wilson, and PHS through Rule 26 disclosures in 2008); id. at 3 (describing Plaintiff’s stated

7

concerns about “the policies set up by the sheriff” at an August 31, 2009 hearing). Courts have

8

denied leave to amend after similar delays. See Opp. at 4 (citing, e.g., Texaco, Inc. v. Ponsoldt, 939

9

F.2d 794, 799 (9th Cir. 1991) (finding undue delay where plaintiff waited until eight months after
summary judgment and two years after filing initial complaint to move to amend)); see also Jackson

11
For the Northern District of California

United States District Court

10

v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990) (“Even accepting appellants’ arguments that

12

they did not have all of the requisite facts until August 1987, did not fully analyze them until

13

October 1987, and added new attorneys to represent them, the delay in filing an amended complaint

14

from October 1987 to May 1988 is otherwise inexplicable and unjustified.”). Moreover, the Court

15

looks with particular suspicion at motions for leave filed after motions for summary judgment. See,

16

e.g., Matsumoto v. Republic Ins. Co., 792 F.2d 869, 872-73 (9th Cir. 1986) (“Because the motion

17

was made after discovery had commenced and at the same time Blue Ridge moved for summary

18

judgment, we conclude that the district court did not abuse it discretion in denying leave to amend.”)

19

(citations omitted); Glesenkamp v. Nationwide Mut. Ins. Co., 71 F.R.D. 1, 4 (N.D. Cal. 1974) (“The

20

liberal amendment policy of the Federal Rules was not intended to allow a party to circumvent the

21

effects of summary judgment by amending the complaint every time a termination of the action

22

threatens.”). Plaintiff’s delay coupled with her undisputed knowledge of the parties at an earlier

23

date renders her last-minute motion for leave suspect.

24

However, the Court declines to deny leave to amend on the grounds of delay alone because

25

Defendant fails to make a strong showing of prejudice. The Ninth Circuit has stated that “it is the

26

consideration of prejudice to the opposing party that carries the greatest weight.” Eminence Capital,

27

LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The only argument Defendant makes

28

related to prejudice is that Plaintiff’s amended complaint will necessitate new discovery and

16

defendant under the CDPA). See Opp. at 6. However, Plaintiff’s causes of action remain largely the

3

same as in her initial complaint, with the exception of a new claim under Title III of the ADA. In

4

addition, the Ninth Circuit has noted that prejudice is especially unlikely where, as in this case, no

5

trial date has been set. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187-88 (9th Cir. 1987)

6

(“Given that this case is still at the discovery stage with no trial date pending, nor has a pretrial

7

conference been scheduled, there is no evidence that [proposed defendant] would be prejudiced by

8

the timing of the proposed amendment.”). Further, there is no incremental prejudice resulting from

9

the delay – the additional litigation stems from the expansion of the claims and parties, not from the

10

timing of their addition. Therefore, the Court finds that Plaintiff’s delay is insufficient to deny her

11
For the Northern District of California

exploration of new, undeveloped legal issues (i.e., the standard of liability for an individual

2

United States District Court

1

leave to amend.

12

4.

13

Defendant argues further that it would be futile for Plaintiff to amend her complaint, thereby

Futility

14

justifying a denial of Plaintiff’s motion for leave. Partington v. Bugliosi, 56 F.3d 1147, 1162 (9th

15

Cir. 1995). If it is “clear that the deficiency in [Plaintiff’s] complaint could not have been overcome

16

by amendment,” the Court may deny leave to amend. Id. Defendant raises multiple reasons why

17

amendment would be futile in this case.

18
19

a.

Rule 15(c)

First, as Plaintiff admits, the statute of limitations bars suits against the new defendants

20

unless Plaintiff can demonstrate that the claims relate back to her original complaint under Rule

21

15(c). As noted above, an amendment adding a new defendant will relate back to the original

22

complaint if it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set

23

out-or attempted to be set out-in the original pleading,” and, within 120 days, the party to be added

24

“received such notice of the action that it will not be prejudiced in defending on the merits” and

25

“knew or should have known that the action would have been brought against it, but for a mistake

26

concerning the proper party’s identity.” Rule 15(c)(1)(C). The purpose of relation back is “to

27

balance the interests of the defendant protected by the statute of limitations with the preference

28

17

1

expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving

2

disputes on their merits.” Krupski v. Costa Crociere S. p. A.,130 S. Ct. 2485, 2494 (2010).

3

As the Supreme Court recently affirmed, the relation back doctrine under Rule 15(c) is

4

appropriate in a case of mistaken identity. In Krupski, an injured plaintiff had originally sued Costa

5

Cruise Lines as the owner and operator of the cruise ship on which she was injured, but she later

6

discovered that the ship was actually owned by Costa Crociere S. p. A. 130 S. Ct. at 2494. The

7

operative question, according to the Court, is “what the prospective defendant knew or should have

8

known during the Rule 4(m) period [120 days], not what the plaintiff knew or should have known at

9

the time of filing her original complaint.” Id. at 2493. If the proposed defendant knew or should
have known that its exclusion from the lawsuit was “only because of [Plaintiff’s] misunderstanding,”

11
For the Northern District of California

United States District Court

10

then it may properly be added. Id. at 2497. Thus, under the Supreme Court’s test for relation back,

12

it is the defendants’ knowledge which is central. It is not enough that the proposed defendants knew

13

they were subject to liability under the Complaint. Instead, they must have notice that they would be

14

named in the Complaint for the claims Plaintiff has asserted but for the fact that Plaintiff has made

15

an error. See Krupski, 130 S. Ct. at 2496.

16

“That a plaintiff knows of a party’s existence does not preclude her from making a mistake

17

with respect to that party’s identity.” Id. at 2494. However, the Court cautioned that “making a

18

deliberate choice to sue one party instead of another while fully understanding the factual and legal

19

differences between the two parties is the antithesis of making a mistake concerning the proper

20

party’s identity.” Id. at 2494; cf. Nelson v. Adams, 529 U.S. 460, 467-68 (2000) (noting that Rule

21

15(c) did not apply because Respondent “knew of Nelson’s role and existence and, until it moved to

22

amend its pleading, chose to assert its claim for costs and fees only against OCP “); In re Network

23

Assoc., Inc. II Securities Litig., 2003 WL 24051280, at *8 (N.D. Cal. Mar. 25, 2003) (“Relation back

24

is only allowed for a mistake in identity, not liability.”).

25

In this case, there is no question that the proposed claims arise out of the same occurrence as

26

the original complaint, and that the prospective defendants had notice of the litigation within the

27

120-day time period. See Opp. to Mot. for Leave at 8-12 (declining to argue that proposed

28

defendants did not have notice of the lawsuit). Thus, the question is whether the prospective

18

1

defendants had notice that their exclusion from the lawsuit was “only because of [Plaintiff’s]

2

misunderstanding.” Krupski, 130 S. Ct. at 2497.

3

With respect to proposed defendants Sheriff Ahern and Deputy Sheriff Farr, the Court finds

4

that there is no relation back because these defendants could not have known that their exclusion

5

from the lawsuit was the result of error rather than strategic calculation. Both defendants have

6

publicly known roles with the County and their involvement in law enforcement policy is obvious.

7

Though Plaintiff argues that she was unaware of the extent of their involvement, Krupski requires

8

not just a lack of understanding, but a misunderstanding by the Plaintiff. Id. at 2497. Furthermore,

9

it requires that the defendants know Plaintiff made a mistake. Here, the complaint refers to
numerous purported County employees and policies created by those employees, yet names only the

11
For the Northern District of California

United States District Court

10

County. Given their public role with the County and the Plaintiff’s presumptive knowledge of them,

12

Ahern and Farr did not have had notice within the Rule 4(m) period that Plaintiff made a mistake,

13

rather than simply a conscious choice, in failing to name them as defendants in her lawsuit. See

14

Krupski, 130 S. Ct. at 2496 (“When the original complaint and the plaintiff’s conduct compel the

15

conclusion that the failure to name the prospective defendant in the original complaint was the result

16

of a fully informed decision as opposed to a mistake concerning the proper defendant’s identity, the

17

requirements of Rule 15(c)(1)(C)(ii) are not met.”). Accordingly, the Court finds that Plaintiff’s

18

claims against Ahern and Farr do not relate back to her original complaint, and are thus futile.7

19

As for the PHS defendants, however, the Court finds that Plaintiff’s claims would relate back

20

to the original complaint. Unlike Ahern and Farr, these defendants’ roles in County law

21

enforcement policies and the administration of the Santa Rita Jail would be unknown to someone in

22

Plaintiff’s position. See Mot. for Leave at 14. More importantly, upon receipt of the complaint,

23

PHS and its employees reasonably knew that (1) Plaintiff was suing for violations arising out of the

24

development and implementation of the jail’s policies and procedures regarding disabled persons,

25

including policies relating to her medical care and classification as a disabled inmate; and (2) they

26
27
28

7

Because the Court finds that any claims against Ahern and Farr do not relate back, the
Court need not address Defendant’s alternative argument that those claims would be barred by
statutory immunities.

19

procedures. Plaintiff’s error in believing the county rather than PHS and its employees were at fault

3

is plain from the first paragraph of her complaint. See Compl., Docket No. 1, ¶ 1 (“This case

4

involves the denial of accessible policies and facilities to disabled persons detained at the Alameda

5

County Jail at Santa Rita, a facility owned and operated by County of Alameda.”); see also id. ¶ 11

6

(describing “Alameda County’s policies” that resulted in “defendant’s failure to provide . . .

7

medication . . . and . . . mobility assistive devices”); id. ¶ 13 (describing nurses as employees of

8

Alameda County). As in Krupski, here PHS and its employees had notice from the complaint that,

9

but for Plaintiff’s mistake in identifying the correct parties, they would be named as defendants.8

10

Accordingly, the Court finds that the new claims against PHS, Brown, Campos, and Wilson relate

11
For the Northern District of California

were responsible (at least in part) for the development and implementation of those policies and

2

United States District Court

1

back to the original complaint.

12

b.

13

Injunctive Relief

This Court has already ruled that Plaintiff has no Article III standing to assert claims for

14

injunctive relief. See Docket Nos. 93, 105, 201. Therefore, Plaintiff’s claims for injunctive relief as

15

to the new defendants are futile.

16

c.

17

Plaintiff’s Remaining Claims Against PHS and Its Employees

With respect to Plaintiff’s remaining claims against PHS and its employees, Defendant

18

makes no argument that these claims would be futile (apart from its claim that they cannot relate

19

back). Indeed, as Defendant points out, the standard of liability for individual defendants under the

20

CDPA is unknown. Therefore, the Court cannot conclude at this point that Plaintiff’s amendments

21

would be clearly futile. Accordingly, under the liberal pleading standards of Rule 15, the Court

22

exercises its discretion to GRANT Plaintiff leave to amend her complaint to add her proposed

23

damages claims against defendants PHS, Melissa Brown, Martha Campos, and Bill Wilson.

24
25
8

26
27
28

Defendant erroneously focuses on Plaintiff’s representations to the Court at an August 31,
2009 hearing. See Opp. to Mot. for Leave at 2-3 (quoting Plaintiff’s counsel answering no to the
Court’s question of whether she intended to make PHS or its employees a defendant). However, that
is irrelevant to the relation back analysis. Rather, the operative question is what the defendants
knew within 120 days of the Complaint being filed. Any subsequent representations during the
course of the litigation do no bear on this question.

20

1
2

IV.

CONCLUSION

For the foregoing reasons, the Court hereby grants Defendant Alameda’s motion for

3

summary judgment. In addition, the Court grants in part and denies in part Plaintiff’s Motion for

4

Leave to File a First Amended Complaint. Plaintiff is directed to file an Amended Complaint that

5

complies with the terms of this Order (and not add new matters not addressed by this Order) by

6

September 12, 2011, and serve it upon Defendants in accordance with the Federal Rules of Civil

7

Procedure and the Local Rules.

8
9

directed to file a joint case management statement by September 30, 2011.
This order disposes of Docket Nos. 176 and 187.

11
For the Northern District of California

United States District Court

10

This Court will hold a case management conference on October 7, 2011. The parties are

12

IT IS SO ORDERED.

13
14

Dated: August 19, 2011

15
_________________________
EDWARD M. CHEN
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28

21