The Estate of Ruben Nunez et al v. County of et al

Filing 42

ORDER granting defendant's 29 Motion for Leave to File a Third-Party Complaint. Defendant is granted leave to file a third-party complaint against CPMG, Jorge Naranjo, and Sara Hansen, lodged as Exhibit A to the Motion, within three days of the date this Order is filed. Signed by Judge Roger T. Benitez on 12/7/16. (kas)

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FILED

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE ESTA TE OF RUBEN NUNEZ by
and through its successor-in-interest
LYDIA NUNEZ, ALBERT NUNEZ, and
LYDIA NUNEZ,
Plaintiff,

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ORDER GRANTING DEFENDANT'S
MOTION FOR LEAVE TO FILE A
THIRD-PARTY COMPLAINT

v.

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Case No.: 3:16-cv-01412-BEN-MDD

COUNTY OF SAN DIEGO, ct aI,

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Defendant.

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Presently before the Court is a Motion for Leave to File Third-Party Complaint

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filed by Defendant County of San Diego ("the County"). (Docket No. 29.) The Motion

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is unopposed.

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"A defending party may, as third-party plaintiff, serve a summons and complaint

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on a nonparty who is or may be liable to it for all or part of the claim against it." Fed. R.

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Civ. P. 14(a)(1). A defending party must seek leave it if seeks to file a third-party

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1 complaint more than 14 days after serving the original answer. (ld) District courts have
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discretion permit or deny the filing of a third-party complaint, except when the third-

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party complaint is filed within fourteen days of serving the original answer. Fed. R. Civ.

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P. 14(a)(1).

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On June 8,2016, Plaintiffs filed a lawsuit against the County for several claims

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arising out of the death of Ruben Nunez ("Ruben") at the County's Central Jail detention

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facility. (Docket No. 1.) On July 5, 2016, the County filed an answer. (Docket No.7.)

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After obtaining the Court's leave, Plaintiffs filed a First Amended Complaint ("FAC") on

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August 30,2016. (Docket Nos. 14-15.) The County filed an answer to the FAC on

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September 19,2016. (Docket No. 19.) On October 31,2016, the County filed this

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Motion, seeking the Court's leave to file a third-party complaint against Correctional

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Physicians Medical Group, Inc. ("CPMG"), and Jorge Naranjo and Sara Hansen, two of

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CPMG's employees and/or agents. (Docket No. 29.) The County argues that its internal

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investigation confirmed that, assuming there was any wrongdoing attributable to Ruben's

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death, such wrongdoing was committed by one or more ofCPMG's employees and/or

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agents. Further, the County represents that CPMG entered into an agreement with the

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County whereby CPMG was contractually obligated to defend and indemnify the County

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for all claims arising out ofCPMG's performance of the agreement.

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Additionally, the County requests that, if it is granted leave to file a third-party

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complaint, it be allowed to delay filing of the complaint until January 30, 2017. The

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County's request is based on a California Code of Civil Procedure requirement that a

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plaintiff give a defendant ninety days' notice of his or her intent to sue for actions "based

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upon" the defendant's professional negligence. (Mot. at 4, citing Cal. Code Civ. Proc. §

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364(a); Preferred Risk Mut. Ins. Co. v. Reiswig, 980 P. 2d 895,897 (CaL 1999). The

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3:16-cv-OI412-BEN-MDD

1 County does not concede that its claims against CPMG are subject to this provision, but
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has nonetheless sent the requisite notice of intent to sue to each of the proposed third-

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party defendants. (Mot. at 4.) The County believes that failure to wait until January 30,

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2017 (the date of the expiration of the ninety days' notice), to file the third-party

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complaint may result in its attorneys being subject to professional discipline. (Mot. at 4,

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citing Cal. Civ. Code § 365 ("failure to comply with [Cal. Code Civ. Proc. § 364(a)] by

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any attorney at law shall be grounds for professional discipline and the State Bar of

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attention.").)
Under California Code Civil Procedure § 364(a), "no action based upon the health

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care provider's professional negligence may be commenced unless the defendant has

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been given at least 90 days' prior notice of the intention to commence the action." Cal.

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Code Civ. Proc. § 364(a) (emphasis added). "Professional negligence" is defined as a

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"negligent act or omission by a health care provider in the rendering of professional

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services, which act or omission is the proximate cause of a personal injury or wrongful

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death." Cal. Code Civ. Proc. § 364(£)(2).

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The County's third-party complaint asserts five claims for relief: 1) breach of

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contract; 2) express contractual indemnification; 3) implied contractual indemnity; 4)

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equitable indemnity; 5) declaratory relief for judicial determination of the respective

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rights and duties of the third-party plaintiffs and defendants. (Mot. Ex. A.) Except for

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the request for declaratory relief, it appears to the Court that each of the County's claims

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for relief is predicated upon a contractual duty to defend and/or indemnify. (Id.) In other

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words, the County's suit is not based upon the proposed-third party defendants'

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professional negligence per se, but is instead based upon their contractual duty to defend

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and/or indemnify the County for any and all claims related to their agreement. (Id.)

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Therefore, the Court is not persuaded that good cause exists to permit such an extensive

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delay in the filing of the County's third-party complaint.

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Accordingly, the Motion is GRANTED. Defendant is granted leave to file a third­

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/iiON.

OGER T. BENITEZ

United States District Judge

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