(PS) Chipman v. Nelson et al, No. 2:2011cv02770 - Document 403 (E.D. Cal. 2015)

Court Description: 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 d ismiss 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 o f 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 a gainst 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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(PS) Chipman v. Nelson et al Doc. 403 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKIE L. CHIPMAN, 12 Plaintiff, 13 14 15 16 17 18 19 20 No. 2:11-cv-2770-TLN-EFB PS 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, ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 21 22 23 Presently before the court are numerous motions to dismiss and to strike plaintiff’s fifth 24 amended complaint filed by several of the remaining defendants. 1 Specifically, defendant THC 25 Orange County dba Kindred Hospital Sacramento (“Kindred”) and defendant Joseph Matthews 26 move to dismiss the complaint under Rule 12(b)(1) and 12(b)(6). ECF Nos. 338 and 345. 27 28 1 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). 1 Dockets.Justia.com 1 Defendants Eva Lew, M.D. and Mark Avdalovic, M.D., and defendant Attila Kasza, M.D., move 2 to dismiss the complaint under Rule 12(b)(6) and, in the alternative, move for a more definite 3 statement under Rule 12(e). ECF Nos. 342 and ECF No. 347. Likewise, defendants Gerard R. 4 Valcarenghi, M.D., Dale J. Wilms, M.D., and Dinesh Verma, M.D. (ECF No. 341), and defendant 5 Julie Clark-Martin (ECF No. 343) move under the same rules. Defendant Jane Stansell moves to 6 dismiss the complaint for failure to state a claim and strike under the anti-SLAPP (Strategic 7 Lawsuit Against Public Participation) provisions set forth in California Civil Procedure Code 8 section 425.16 and, in the alternative, for a more definite statement. ECF No. 344. Defendant 9 Dirk Potter moves to strike the complaint under the anti-SLAPP provisions and, in the alternative, 10 to dismiss under Rule 12(b)(6). ECF No. 340. 11 Also pending before the court are plaintiff’s motion for default judgment against 12 defendant Kimberly Merrifield (ECF No. 372), Ms. Merrifield’s related motion to set aside 13 default judgment (ECF No. 375), and plaintiff’s request to subpoena court records from the Butte 14 County Superior Court. ECF No. 337.2 15 For the reasons stated herein, plaintiff’s request to subpoena records is denied without 16 prejudice. Further, it is recommended that defendants’ motions be granted in part, defendant 17 Merrifield’s motion to set aside default be granted, and plaintiff’s motion for default judgment be 18 denied. 19 I. 20 Procedural History This action was commenced on October 20, 2011. ECF No. 1. It arises out of a dispute 21 between plaintiff and defendants over the medical care provided to plaintiff’s mother, Mary A. 22 Martin. Numerous motions to dismiss and to strike the original complaint were filed by various 23 defendants. ECF Nos. 12, 13, 15, 16, 17, 21, 22, 25, 27, 28, 29, 32, 38, 39; see also 20, 40, 41, 24 44. On February 29, 2012, plaintiff filed a single, consolidated opposition to the multiple 25 motions. ECF No. 49. Plaintiff’s pleading purported to provide a “more definitive statement.” 26 27 28 2 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). 2 1 The pleading was therefore construed as a motion to amend the complaint, which was granted on 2 March 12, 2012. ECF No. 64. 3 On March 30, 2012, plaintiff filed a first amended complaint purporting to assert several 4 causes of action against seventeen named defendants. ECF No. 74. All defendants moved to 5 dismiss that complaint, ECF Nos. 76, 77, 78, 79, 80, 83, 85, 87, 94, 95, 96, and on March 28, 6 2013, it was dismissed with leave to amend, except as to claims barred by California’s litigation 7 privilege, plaintiff’s claim under California Penal Code section 471.5, plaintiff’s false 8 imprisonment claim, and all claims against three defendants (Roberts, Calkins, and O’Mahoney), 9 which were dismissed without leave to amend. ECF Nos. 151, 152. 10 Plaintiff filed a second amended complaint (ECF No. 154) and various defendants again 11 moved to dismiss. ECF Nos. 156, 157, 158, 161, 162, 163, 178. In response, plaintiff sent a 12 letter to the court (ECF No. 166) which was construed as a motion to amend plaintiff’s second 13 amended complaint. ECF No. 179. So construed, the motion was granted and plaintiff filed a 14 third amended complaint. ECF No. 180. Another round of motions to dismiss ensued, again 15 resulting in plaintiff requesting leave to amend her complaint. ECF No. 221. Plaintiff argued that 16 her third amended complaint omitted factual allegations necessary to support her claims. Id. at 17 2.3 That request, too, was granted. ECF No. 245. However, because plaintiff had been given 18 numerous opportunities to amend her complaint, she was admonished that further motions to 19 amend would be looked upon with disfavor. Id. at 3. 20 Plaintiff filed a fourth amended complaint, alleging claims on plaintiff’s behalf and on 21 behalf of her deceased mother (the “decedent”). ECF Nos. 246, 247. That complaint also drew 22 various motions to dismiss and/or strike. ECF Nos. 248, 249, 253, 257, 258, 259, 262, 266, 277, 23 294. The undersigned recommended that plaintiff’s fourth amended complaint be dismissed 24 without leave to amend, finding that plaintiff failed to state any federal claims for relief and 25 recommending that the court decline to exercise supplemental jurisdiction over the complaint’s 26 ///// 27 28 3 The page numbers cited herein refer to the page numbers assigned by the court’s case management and electronic case filing (CM/ECF) system. 3 1 state law claims. ECF No. 330. The recommendation was adopted in part and the complaint was 2 dismissed, but with further leave to amend.4 ECF No. 334. 3 Thereafter, plaintiff filed her fifth amended complaint. ECF No. 336. With the exception 4 of defendants Enloe Medical Center (“EMC”), Brenda Boggs, Marcia Nelson, and Kimberly 5 Merrifield, all defendants have moved to dismiss the fifth amended complaint in one form or 6 another.5 Plaintiff has also moved for default judgment against defendant Kimberly Merrifield 7 (ECF No. 372), and Ms. Merrifield has moved to set aside the entry of her default. ECF No. 375. 8 II. 9 Factual Allegations Plaintiff, Ricki Chipman, alleges that she is a registered nurse residing in Washington 10 State, and is the daughter and heir of Mary A. Martin (“the decedent”). Fifth Am. Compl., ECF 11 No. 336 at 4. Prior to 2006, the year the decedent began to suffer from dementia, plaintiff was 12 designated to make medical decisions for the decedent. Id. 13 In May 2010, the decedent was admitted to EMC after plaintiff had concerns that the 14 decedent had sepsis. ECF No. 336 at 19. The decedent initially improved upon admittance to 15 EMC. Id. However, plaintiff claims that the decedent eventually began to suffer from a lower 16 gastro-intestinal bleed, which was due to administering unnecessary anticoagulants. Id. The 17 complaint alleges that plaintiff “witnessed physicians and staff at defendant EMC commit one 18 medical mistake after another and then defendants . . . attempted to cover the mistakes up by 19 performing unnecessary mutilating surgeries and procedures” by falsifying records, committing 20 perjury, and eventually initiating proceedings for a temporary restraining order (“TRO”) against 21 plaintiff and her family and for the appointment of a temporary guardian to make medical 22 23 24 25 26 27 28 4 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. 5 Defendants EMC, Brenda Boggs, and Marcia Nelson filed an answer to the fifth amended complaint. ECF No. 346. 4 1 decisions on the decedent’s behalf. Id. at 20-21. Plaintiff claims that the TRO and 2 conservatorship were obtained by perjury and false information. Id. at 21. 3 On September 21, 2010, the decedent was transferred to Kindred Hospital Sacramento 4 (“Kindred”). Id. at 22. The complaint alleges that Kindred did not have the diagnostic equipment 5 and physicians to properly evaluate and treat the decedent, so plaintiff requested that the decedent 6 be transferred to Mercy Medical Center in Folsom. Id. at 22-23. The transfer was denied by the 7 court appointed guardian, and on October 20, 2010, the decedent died. Id. at 22-23. Plaintiff 8 claims that the decedent’s death was due to receiving unnecessary anticoagulants, falsified 9 discharge assessments and failure to transfer the decent to an appropriate facility. Id. at 24-26. 10 Plaintiff further contends that the care provided to the decedent by the defendant physicians fell 11 below the applicable standard of care. 12 III. Defendants’ Motions to Dismiss 13 A. Rule 12(b)(6) Standard 14 To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint 15 must contain more than a “formulaic recitation of the elements of a cause of action”; it must 16 contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell 17 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more 18 . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of 19 action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235- 20 236 (3d ed. 2004)). “[A] complaint must contain sufficient factual matter, accepted as true, to 21 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) 22 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 23 factual content that allows the court to draw the reasonable inference that the defendant is liable 24 for the misconduct alleged.” Id. Dismissal is appropriate based either on the lack of cognizable 25 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 26 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 28 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 5 1 the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in 2 the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S. 869 (1969). 3 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. 4 Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its 5 defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before 6 dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 7 1446, 1448 (9th Cir. 1987). However, although the court must construe the pleadings of a pro se 8 litigant liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985), that liberal 9 interpretation may not supply essential elements of a claim that are not plead. Pena v. Gardner, 10 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 11 (9th Cir. 1982). Furthermore, “[t]he court is not required to accept legal conclusions cast in the 12 form of factual allegations if those conclusions cannot reasonably be drawn from the facts 13 alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need 14 the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council 15 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 16 In deciding a Rule 12(b)(6) motion to dismiss, the court may consider facts established by 17 exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 18 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. 19 Ct., 828 F.2d at 1338, and matters of public record, including pleadings, orders, and other papers 20 filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). 21 B. Claims on Behalf of the Decedent 22 The fifth amended complaint alleges that plaintiff is the administrator for the estate of the 23 decedent. ECF No. 336 at 2. The operative complaint, like plaintiff’s prior complaints, purports 24 to assert several survival claims that belong to the estate of the decedent, and not plaintiff 25 personally. See Dela Torre v. City of Salinas, 2010 WL 3743762, at *7 (N.D. Cal. Sept. 17, 26 2010) (“Unlike a wrongful death cause of action, a survival cause of action is not a new cause of 27 action that vests in heirs on the death of the decedent, but rather is a separate and distinct cause of 28 action which belonged to the decedent before death but, by statute, survives the event.”). Under 6 1 California law, a survival action may be prosecuted by the decedent’s personal representative or 2 successor in interest. Cal. Civ. Proc. Code § 377.30. 3 Although plaintiff alleges that she is the personal representative and successor in interest 4 for the decedent, this court has previously explained to plaintiff “the general rule prohibiting pro 5 se plaintiffs from pursuing claims on behalf of others in a representative complaint.” Simon v. 6 Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). While plaintiff can represent herself as to 7 any causes of action that belong to her, she may not represent other parties or entities, including 8 the decedent’s estate. The Ninth Circuit explained in Simon that the privilege to represent oneself 9 pro se is personal to the litigant and does not extend to other parties or entities. “Consequently, in 10 an action brought by a pro se litigant, the real party in interest must be the person who ‘by 11 substantive law has the right to be enforced.’” Id. (quoting C.E. Pope Equity Trust v. United 12 States, 818 F.2d 696, 697 (9th Cir. 1987)). 13 This court has also previously explained to plaintiff that she cannot proceed in this court 14 with claims on behalf of the decedent because such claims would defeat complete diversity. 6 15 ECF No. 334. While plaintiff is a resident of Washington, the decedent was a resident of Butte 16 County, California at the time of her death, and “the legal representative of the estate of a 17 decedent shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C. 18 1332(c)(2). Accordingly, any claims brought by plaintiff on behalf of the decedent would render 19 this court without subject matter jurisdiction. Notwithstanding the court’s admonishments, 20 plaintiff continues to assert several claims on behalf of the decedent. 21 C. Plaintiff’s Claims 22 The fifth amended complaint purports to assert the following causes of actions: (1) willful 23 misconduct; (2) elder abuse and negligence; (3) medical battery; (4) perjury; (5) malicious 24 prosecution/S.L.A.P.P; (6) interference with contract for economic advantage; (7) fraudulent 25 26 27 28 6 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. 7 1 concealment; (8) constructive fraud; (9) conspiracy; (10) violation of California CCP patient’s 2 rights (11) intentional infliction of emotional distress, and (12) wrongful death. ECF No. 336 at 3 26-49. 4 5 1. Willful Misconduct Plaintiff’s complaint alleges a claim for willful misconduct against all defendants. ECF 6 No. 336 at 26. Willful misconduct is not a separate tort, but is an aggravated form of negligence. 7 7 Berkley v. Dowds, 152 Cal. App. 4th 518, 526 (2007). Here, plaintiff alleges that each defendant 8 owed a duty of care to the decedent, that they should have known the perils posed by failure to 9 comply with the applicable standards, and that the defendants disregarded the perils and high 10 probability of injury and death to the decedent. ECF No. 336 at 27. Plaintiff further claims that 11 the defendants “failed to follow the health care decisions of Decedent’s health care agent, 12 Plaintiff, Rickie L. Chipman.” Id. at 27. 13 Thus, plaintiff’s willful misconduct claim is predicated on defendants’ alleged breaches of 14 duty owed to the decedent, and not to plaintiff. This claim is not personal to plaintiff but rather 15 one that belonged to the decedent before her death. Plaintiff can only assert claims personal to 16 her and cannot proceed in this court on claims on behalf of the decedent. Accordingly, her willful 17 misconduct claim must be dismissed. 18 19 2. Elder Abuse and Negligence Plaintiff also alleges claims for elder abuse and negligence against all defendants. ECF 20 No. 336 at 31-33. These claims, again, stem from alleged injuries to the decedent. The complaint 21 alleges that the decedent was over the age of 65, that all defendants committed neglect, and that 22 as a result the decedent sustained injuries, elder abuse, and wrongful death. Id. at 31. These 23 24 25 26 27 28 7 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. 8 1 allegations clearly demonstrate that the injured party was the decedent and therefore these claims 2 belong to the decedent’s estate and not plaintiff personally. Plaintiff, apparently aware that she 3 can only assert claims on her behalf, does allege that she “sustained Intentional Infliction of 4 Emotion Distress from the witnessing and knowledge” of defendants’ conduct. Id. at 31-32. 5 However, intentional infliction of emotional distress is a separate cause of action from elder abuse 6 and negligence, and plaintiff’s allegation that she sustained emotional injuries on account of 7 defendants’ conduct cannot transform claims belonging to the decedent’s estate into claims 8 personal to plaintiff. 9 Furthermore, the complaint does not contain any allegations to support a claim for 10 negligence belonging to plaintiff. “The elements of a medical malpractice claim are: (1) the duty 11 of the professional to use such skill, prudence, and diligence as other members of his profession 12 commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection 13 between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting 14 from the professional’s negligence.” Avivi v. Centro Medico Urgente Medical Center, 159 Cal. 15 App. 4th 463, 468 n.2 (2008). While plaintiff generally alleges that defendants owed a “duty of 16 honesty,” she has failed to allege any facts demonstrating that these defendants owed her, as the 17 decedent’s daughter, a duty of care.8 See Rainer v. Grossman, 31 Cal. App. 3d 539, 543 (1973) 18 (“In the usual case of medical malpractice the duty of care springs from the physician-patient 19 relationship which is basically one of contract.”). 20 Accordingly, plaintiff’s claims for elder abuse and negligence must be dismissed. 21 3. Medical Battery 22 Plaintiff also asserts a claim for medical battery against defendants Matthews, Verma, and 23 Wilms. ECF No. 336 at 33-35. Plaintiff contends that these physicians subjected the decedent to 24 unnecessary surgeries and procedures. Id. at 33-34. The complaint further alleges that defendant 25 Wilms purposely withheld a necessary procedure, a thoracentesis, on June 13, 2010. Id. at 35. 26 27 28 8 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. 9 1 Again, these allegations concern harm suffered by the decedent, not plaintiff. 9 Thus, this claim 2 must also be dismissed. 3 4 4. Perjury Plaintiff’s fourth cause of action is for perjury against defendants Nelson, EMC, 5 Matthews, Verma, Clark-Martin, Boggs, Potter, Stansell, and Merrifield. California law does not 6 recognize a civil action for perjury. Carden v. Getzoff, 190 Cal. App. 3d 907, 915 (1987) (citing 7 Taylor v. Bidwell, 65 Cal. 489, 490 (1884)). Plaintiff therefore may not maintain her claim for 8 perjury against these defendants. 9 10 5. Malicious Prosecution/S.L.A.P.P. Plaintiff’s fifth cause of action is entitled malicious prosecution/Strategic Lawsuit Against 11 Public Participation (S.L.A.P.P.), and appears to be a claim for malicious prosecution against 12 defendants Nelson, EMC, Matthews, Verma, Clark-Martin, Boggs, Potter, Stansell, and 13 Merrifield. ECF No. 336 at 37-40. This claim arises out of these defendants’ involvement in 14 seeking a TRO and the appointment of a conservatorship to make medical decisions on behalf of 15 the decedent. Id. at 38-40. 16 This court previously concluded that plaintiff cannot pursue a claim for malicious 17 prosecution against defendants in relation to the TRO and conservatorship proceedings. In 18 plaintiff’s first amended complaint, plaintiff alleged a claim for defamation against defendants 19 Clark-Martin, Boggs, Nelson, Matthews, and EMC based on their roles in filing the action 20 seeking a TRO. ECF No. 74 at 6-7. Those defendants moved to dismiss the defamation claim on 21 the ground that it was barred by California’s litigation privilege. ECF No. 76 at 12-14; ECF No. 22 80 at 11-12; ECF No. 134. The court found that the defamatory statements were all made to the 23 state court in seeking a TRO, and therefore were protected by California’s litigation privilege. 24 ECF No. 151. The court observed that the litigation privilege serves as an absolute bar, unless 25 plaintiff can allege malicious prosecution. Id. The record before the court established that 26 27 28 9 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. 10 1 plaintiff could not succeed on a claim of malicious prosecution. 2 “In order to state a cause of action for malicious prosecution the plaintiff must allege that 3 the prior action (1) was commenced by or at the direction of the defendant and pursued to a legal 4 termination in plaintiff’s favor; (2) was brought without probable cause; and (3) was initiated 5 with malice” Sagonowsky v. More, 64 Cal. App. 4th. 122, 128 (1998). This court found that 6 plaintiff could not state a claim for malicious prosecution because a court transcript, submitted 7 with the first amended complaint as an exhibit, demonstrated that the conservatorship case was 8 dismissed due to the decedent no longer being a patient at EMC, and thus EMC no longer having 9 an interest in pursuing the conservatorship. ECF No. 151 at 13; see ECF No. 74 at 62. Based on 10 these facts, plaintiff could not show that the prior action was pursued to a legal termination in 11 plaintiff’s favor. Thus, the court concluded that “plaintiff cannot allege a malicious prosecution 12 claim here” and plaintiff’s defamation claim was dismissed without leave to amend. 10 13 Although the court’s prior ruling was in relation to plaintiff’s claim for defamation, the 14 court nevertheless concluded that plaintiff cannot succeed on a claim for malicious prosecution. 15 Accordingly, this claim must also be dismissed. 16 17 6. Interference with Contract for Economic Advantage Plaintiff also alleges a claim for interference with a contract for economic advantage 18 against defendants Nelson, EMC, Matthews, Verma, Stansell, Merrifield, Potter, Clark-Martin, 19 and Boggs. ECF No. 336 at 40-41. 20 “The elements which a plaintiff must plead to state the cause of action for intentional 21 interference with contractual relations are (1) a valid contract between plaintiff and a third party; 22 (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a 23 breach or disruption of the contractual relationship; (4) actual breach or disruption of the 24 25 26 27 28 10 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. 11 1 contractual relationship; and (5) resulting damage.” Pacific Gas & Electric Co. v. Bear Stearns 2 & Co., 50 Cal. 3d 1118, 1126 (1990) (citations omitted). “The tort of interference with 3 prospective economic advantage protects the same interest in stable economic relationships as 4 does the tort of interference with contract, though interference with prospective advantage does 5 not require proof of a legally binding contract. The chief practical distinction between 6 interference with contract and interference with prospective economic advantage is that a broader 7 range of privilege to interfere is recognized when the relationship or economic advantage 8 interfered with is only prospective.” Id. (citations and fn. omitted). “To prevail on a cause of 9 action for intentional interference with prospective economic advantage in California, a plaintiff 10 must plead and prove (1) an economic relationship between the plaintiff and some third party, 11 with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of 12 the relationship; (3) the defendant’s intentional acts designed to disrupt the relationship; (4) actual 13 disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the 14 defendant’s acts.” Reeves v. Hanlon, 33 Cal. 4th 1140, 1152, n. 6 (2004) (citation omitted). 15 Plaintiff alleges that these defendants, in an attempt to prevent litigation for malpractice, 16 falsified court documents in order to obtain a state guardian. ECF No. 336 at 40. Plaintiff further 17 alleges that defendants billed Medicare and Blue Shield for over 4 million dollars. Id. at 41. She 18 also claims that defendants breached their fiduciary duty to disclose information and that such 19 breaches were financially motivated. Id. 20 These allegations fail to state a claim for interference with a contract and/or economic 21 advantage. Plaintiff does not allege the existence of an economic or contractual relationship 22 between her and a third-party, nor has she alleged any economic damages. Accordingly, this 23 claim must also be dismissed. 24 7. Fraudulent Concealment 25 Plaintiff also alleges a claim for fraudulent concealment against defendants Nelson, EMC, 26 Matthews, Verma, and Potter. ECF No. 336 at 41-43. 27 ///// 28 ///// 12 1 “The elements of an action for fraud and deceit based on concealment are: (1) the 2 defendant must have concealed or suppressed a material fact, (2) the defendant must have been 3 under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally 4 concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have 5 been unaware of the fact and would not have acted as he did if he had known of the concealed or 6 suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff 7 must have sustained damage.” Boschma v. Home Loan Center, Inc., 198 Cal. App. 4th 230, 248 8 (2011). “In all averments of fraud . . . , the circumstances constituting fraud . . . shall be stated 9 with particularity.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough to give 10 defendants notice of the particular misconduct which is alleged to constitute the fraud charged so 11 that they can defend against the charge and not just deny that they have done anything wrong.” 12 Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). In addition to the “time, place and 13 content of an alleged misrepresentation,” a complaint “must set forth what is false or misleading 14 about a statement, and . . . an explanation as to why the statement or omission complained of was 15 false or misleading.” Yourish v. Cal. Amplifier, 191 F.3d 983, 993, n. 10 (9th Cir. 1999). The 16 complaint must also name the persons who made the allegedly fraudulent statements. See Morris 17 v. BMW of N. Am., LLC, 2007 WL 3342612, at *3 (N.D. Cal. Nov. 7, 2007) (citing In re Glenfed, 18 Inc. Sec. Litig., 42 F.3d 1541, 1547-48 n. 7 (9th Cir. 1994) (en banc)). 19 Plaintiff alleges that defendant Potter “knowingly concealed the fraudulent ex parte 20 hearing of July 7, 2010 from Plaintiff and family,” and that he was under a legal and ethical duty 21 to provide notice to plaintiff and her family. ECF No. 336 at 41. As for defendants Matthews 22 and Verma, plaintiff alleges that they owed a duty of care to the decedent, and that they 23 “knowingly and maliciously concealed information regarding their malpractice, medical battery, 24 negligence, and self-interest,” and concealed “accurate information” to block the transfer of the 25 decent to Kindred Hospital Sacramento/Folsom. 26 These general allegations fail to comply with the enhanced pleading standard required for 27 stating a claim for fraud under Rule 9. Although plaintiff does allege the specific information that 28 Potter allegedly concealed, plaintiff provides no allegations indicating that Potter failed to notify 13 1 plaintiff of the ex parte hearing “with the intent to defraud plaintiff.” See Boschma, 198 Cal. 2 App. 4th at 248. Plaintiff also fails to allege reliance. “Reliance can be proven in a fraudulent 3 omission case by establishing that had the omitted information been disclosed, the plaintiff would 4 have been aware of it and acted differently.” Id. at 250-251. Plaintiff provides no allegations 5 demonstrating that she would have acted differently had she been provided notice of the hearing. 6 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 8 pleading standard. Furthermore, plaintiff also fails to allege reliance as to these defendants’ 9 omissions. Plaintiff’s complaint suggests that the defendant physicians made statements to hide 10 their negligence and medical malpractice, not to deceive plaintiff and induce her reliance. 11 Accordingly, plaintiff fails to state a claim for fraudulent concealment. 12 13 8. Constructive Fraud Plaintiff’s eighth cause of action is for constructive fraud and is alleged against defendants 14 Nelson, EMC, Matthews, Verma, Kasza, Potter, Clark-Martin, Stansell and Merrifield. ECF No. 15 336 at 43-46. 16 Under California law, “[c]onstructive fraud is a unique species of fraud applicable only to 17 a fiduciary or confidential relationship.” Assilzadeh v. Cal. Fed. Bank, 82 Cal. App. 4th 399, 415 18 (2000). Under this theory of liability, “a fiduciary is liable to his principal for constructive fraud 19 even though his conduct is not actually fraudulent.” Salahutdin v. Valley of California, Inc., 24 20 Cal. App. 4th 555, 562 (1994). “[C]onstructive fraud comprises any act, omission or concealment 21 involving a breach of legal or equitable duty, trust or confidence which results in damages to 22 another even though the conduct is not otherwise fraudulent.” Assilzadeh, 82 Cal. App. 4th at 23 415. “Thus, constructive fraud mirrors actual fraud but replaces the requirement of scienter with 24 the requirement of a fiduciary duty.” Beco Dairy Automation, Inc. v. Global Tech Sys., Inc., No. 25 CV–F12–1310 LJO SMS, 2012 WL 4052066, at *8 (E.D. Cal. Sept. 14, 2012). 26 Aside from plaintiff’s conclusory statements that defendants owed her a duty of honesty, 27 plaintiff’s complaint is completely devoid of any facts indicating that defendants Matthews, 28 Verma, Kasza, Clark-Martin, and Stansell owed her a fiduciary duty. Although plaintiff does 14 1 allege that Potter was hired as her attorney, she fails to allege sufficient facts to state a claim for 2 constructive fraud against Potter. Plaintiff simply alleges that “defendant Potter’s fraudulent 3 Stipulation dated July 15, 2010, mirrors the same restrictive and harmful rules of Defendants 4 EMC and Nelson’s memorandum, and is endorsed by defendants’ Stansell, Merrifield, and Clark- 5 Martin’s signatures.” ECF No. 336 at 44. Plaintiff does not, however, allege what information 6 was concealed from her or explain how the stipulation was fraudulent, nor does she explain how 7 she was harmed by the July 15 stipulation. Accordingly, plaintiff has failed to state a claim for 8 constructive fraud. 9 9. Conspiracy 10 Plaintiff’s ninth cause of action is for conspiracy against defendants Nelson, EMC, 11 Matthews, Verma, Wilms, Valcarenghi, Kasza, Clark-Martin, Boggs, Potter, Stansell, and 12 Merrifield. ECF No. 336 at 46-47. 13 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 15 the immediate tortfeasors a common plan or design in its perpetration.” Applied Equip. Corp. v. 16 Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-11 (1994); see also Entertainment Research Group, 17 Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1228 (9th Cir. 1997). Thus, to properly state 18 a claim for imposing liability under a conspiracy basis, plaintiff must not only properly allege 19 facts showing the elements for the underlying cause of action, she must also satisfy the elements 20 for establishing conspiracy. Liability for civil conspiracy generally requires three elements: (1) 21 formation of a conspiracy (an agreement to commit wrongful acts); (2) operation of a conspiracy 22 (commission of the wrongful acts); and (3) damage resulting from operation of a conspiracy. Id. 23 at 511. A civil conspiracy is therefore activated by the commission of an underlying wrongful 24 act. Id. 25 Plaintiff alleges that these defendants conspired to illegally abduct the decedent from her 26 family with perjury and fraudulent statements, and conspired to circumvent plaintiff’s legal right 27 to provide informed consent for her mother. ECF No. 336 at 46. She further alleges that 28 “Merrifield sent a letter, dated October 20, 2010, the day of Decedent’s wrongful death, stating 15 1 the temporary guardians were to remain in place, thereby keeping her position in place.” Id. 2 Plaintiff further contends that these defendants’ “conspiracy set and kept in motion all other 3 Cause of Actions [sic] as aforesaid herein, including intentional infliction of severe emotional 4 distress, elder abuse and wrongful death.” Id. at 47. 5 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 7 claim on the decedent’s behalf. 8 As for plaintiff’s contention that these defendants conspired to deprive plaintiff of her 9 rights to provide informed consent for her mother, such a conclusory allegation is insufficient to 10 state a cause of action for conspiracy. Furthermore, plaintiff also fails to tie her conspiracy claim 11 to an underlying cause of action. Instead, she simply concludes that the “conspiracy set and kept 12 in motion all other” causes of action. Plaintiff also does not allege any facts demonstrating an 13 agreement between the parties, nor does she allege the commission of wrongful acts in 14 furtherance of the agreement. Plaintiff simply concludes that the named defendants conspired to 15 violate her right to provide informed consent, and identifies a single letter sent by defendant 16 Merrifield. Such conclusory allegations fail to demonstrate the existence of a conspiracy. 17 10. Violation of California CCP Patient’s Rights 18 Plaintiff alleges that all defendants violated California Code of Regulation, Title 22, 19 Section 70707 “when they intentionally isolated Decedent from her family . . ., and illegally 20 removed Decedent’s designated health care decision maker. ECF No. 336 at 47-48. Plaintiff also 21 alleges that defendants violated section 70707 by committing fraud, lying, committing perjury, 22 and altering the decedent’s records. Id. 23 Plaintiff does not allege that she was ever a patient, and it is clear from the complaint that 24 the only patient at issue in the complaint was the decedent. Thus, any rights that were violated 25 belong to the decedent and not to plaintiff. As such, this claim must also be dismissed. 26 27 28 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. 16 1 “In order to establish a claim for intentional infliction of emotional distress under 2 California law, [plaintiff is] required to show (1) that the defendant’s conduct was outrageous, 3 (2) that the defendant intended to cause or recklessly disregarded the probability of causing 4 emotional distress, and (3) that the plaintiff’s severe emotional suffering was (4) actually and 5 proximately caused by defendant’s conduct.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 6 2004). “Only conduct ‘exceeding all bounds usually tolerated by a decent society, of a nature 7 which is especially calculated to cause, and does cause, mental distress’ is actionable.” Brooks 8 v. United States, 29 F. Supp. 2d 613, 617-18 (N.D. Cal. 1998). Where defendant’s “conduct was 9 directed primarily at” plaintiff’s decedent, recovery is limited to “‘the most extreme cases of 10 violent attack, where there is some especial likelihood of fright or shock.’” Christensen v. 11 Superior Court, 54 Cal. 3d 868, 905 (1991) (quoting Ochoa v. Superior Court, 39 Cal. 3d 159, 12 165 n. 5 (1985), accord Coon v. Joseph, 192 Cal. App. 3d 1269 (1987)). 13 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 15 claims that defendants’ “conduct was intentional, extreme, outrageous and beyond all possible 16 bounds of decency that is tolerated in a civilized society.” Id. 17 As the complained of activity is not directed towards plaintiff, but to a third-party, to 18 qualify as actionable conduct, defendants’ activity against the decedent must be among “‘the most 19 extreme cases of violent attack.’” Christensen, 54 Cal. at 905 (quoting Ochoa, 39 Cal. 3d at 165 20 n.5). In essence, the complaint alleges that procedures performed on the decedent were 21 unnecessary, that the care provided was deficient, and that defendants impermissibly blocked the 22 transfer of the decedent to a facility that could provide her with adequate care. Such conduct is 23 akin to medical malpractice and is not, as plaintiff in conclusory fashion suggests, tantamount to a 24 violent attack or other extreme and outrageous conduct. Accordingly, plaintiff’s claim for 25 intentional infliction of emotional distress must be dismissed. 26 12. Wrongful Death 27 28 Plaintiff’s last cause of action is for wrongful death against all defendants. ECF No. 336 at 23. 17 1 Wrongful death actions may be brought by a decedent’s children. Cal. Civ. Proc. Code 2 § 377.60(a). “The elements of the cause of action for wrongful death are the tort (negligence or 3 other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss 4 suffered by the heirs.” Quiroz v. Seventh Ave. Center, 140 Cal. App. 4th 1256, 1263 (Cal. Ct. 5 App. 2006); Wright v. City of Los Angeles, 219 Cal. App. 3d 318, 344, 358 (Cal. Ct. App. 1990). 6 For a wrongful death action to survive a motion to dismiss, “the complaint must contain 7 allegations as to all elements of actionable negligence.” Van Horn v. Hornbeak, 2009 WL 8 435104 (E.D. Cal. Feb. 19, 2009) (citing Jacoves v. United Merchandising Corp., 9 Cal. App. 9 4th 88, 105 (1992)). To allege professional negligence, plaintiff must allege (1) the duty of the 10 professional to use such skill, prudence, and diligence as other members of his profession 11 commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection 12 between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting 13 from the professional negligence. Fuentes v. County of Madera, 2006 WL 3087172 (E.D. Cal. 14 Oct. 30, 2006) (citing Elcome v. Chin, 110 Cal. App. 4th 310, 317 (Cal. Ct. App. 2003)). In terms 15 of causation, a defendant’s negligent act is only the cause of death where “in the absence of other 16 reasonable causal explanations, it becomes more likely than not that the injury was a result” of the 17 negligence. Fuentes, 2006 WL 3087172 (citing Jennings v. Palomar Pomerado 18 Health Systems, Inc., 114 Cal. App. 4th 1108, 1118 (Cal. Ct. App. 2003)). 19 The various defendants assert several arguments, many specific to the individual 20 defendant, as to the complaint fails to state a claim for wrongful death. The court addresses 21 various arguments below. 22 a) 23 Failure to Join Necessary Parties Defendants Kindred, Potter, Lew, Avdalovic, and Matthews argue that this court has 24 already determined that plaintiff cannot proceed on her claim for wrongful death without first 25 joining her siblings, which would defeat this court’s diversity jurisdiction. 11 26 ///// 27 28 11 Plaintiff’s sisters are residents of California. 18 1 These defendants misinterpret the court’s prior rulings. 12 2 As noted above, on September 10, 2014, the undersigned recommended that the fourth 3 amended complaint’s federal claims be dismissed for failure to state a claim and that the court 4 decline to exercise supplemental jurisdiction over the complaint’s state law claims. ECF No. 330. 5 Plaintiff filed objections to the findings and recommendations, indicating that she wanted to 6 abandon all claims on behalf of the decedent and proceed only on claims that were personal to 7 her, including a wrongful death claim. ECF No. 333. 8 9 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 10 plaintiff based on diversity jurisdiction. ECF No. 334. The order also noted that plaintiff may 11 encounter a hurdle to asserting a claim for wrongful death. Specifically, the order observed that 12 “[f]ederal courts have held that in wrongful death actions absent heirs are considered necessary 13 parties. [citation]. It appears from the allegations of the complaint that the decedent’s heirs are 14 residents of California and may not be jointed without defeating diversity jurisdiction.” ECF No. 15 332 at 3-4. Although the court noted this potential issue, the court did not expressly hold that 16 plaintiff cannot allege a claim in this court without defeating diversity. See id. Rather, the court 17 simply identified one hurdle plaintiff may face in asserting a wrongful death claim. 18 Although plaintiff’s siblings may be necessary parties, such a finding does not end the 19 inquiry. In determining whether a case can proceed without a necessary party, a court must look 20 to Rule 19, which governs joinder of parties. Rule 19 sets forth three-step inquiry: “1. Is the 21 absent party necessary (i.e., required to be jointed if feasible) under Rule 19(a)? 2. If so, is it 22 feasible to order that the absent party be joined? 3. If joinder is not feasible, can the case proceed 23 without the absent party, or is the absent party indispensable such that the action must be 24 dismissed?” Salt River Project Agr. Imp. And Power Dist. v. Lee, 672 F.3d 1176 (9th Cir. 2012). 25 ///// 26 27 28 12 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. 19 1 Although federal courts have held that absent heirs are “necessary” parties, courts have also found 2 that where an absent heir’s claim would be barred by the statute of limitations, the absent heir is 3 not indispensable. See Backer v. United States, 2014 WL 4267500, at *2-3 (E.D. Cal. Aug. 29, 4 2014); A.D. v. California Highway Patrol, 2009 WL 733872, * at 4-5 (N.D. Cal Mar. 17, 2009); 5 Estate of Burkhart v. United States, 2008 WL 4067429, * 7-8 (N.D. Cal. Aug. 26, 2008). 6 Plaintiff’s siblings are necessary parties, but as indicated by the court’s prior order, joinder 7 would defeat diversity jurisdiction and therefore is not feasible. However, it appears that any 8 wrongful death claim brought by plaintiff’s siblings would be barred by the applicable statute of 9 limitations. Since plaintiff’s claim for wrongful death against the medical defendants is based on 10 their alleged malpractice, California Code of Civil Procedure section 340.5 provides the 11 applicable statute of limitations for claims against the medical care providers. That section states: 12 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. 13 14 15 16 17 18 Cal. Civ. Proc. Code § 340.5. As for a wrongful death claim against the defendants that are not 19 medical care providers, the applicable statute of limitations is two years. Cal. Code. Civ. P. § 20 335.1. 21 The complaint alleges that the decedent died on October 20, 2010. ECF No. 336 at 23. 22 As the three year statute of limitations has now passed, the absent heir’s claims appear to be 23 barred by the applicable statute of limitations. Accordingly, the court finds that these necessary 24 parties are not indispensable and that the claim can proceed in their absence. 13 25 ///// 26 ///// 27 28 13 In any event, none of the defendants specifically argue that plaintiff’s siblings, or any other absent heir, are an indispensable. 20 1 2 b) Defendant Kindred Hospital Kindred also argues that this court lacks jurisdiction over plaintiff’s wrongful death claim 3 because she asserts it in her capacity as the personal representative of the decedent’s estate, and 4 therefore she is considered a citizen of California under 28 U.S.C. 1332(c)(2). ECF No. 339 at 8. 5 The complaint does allege that plaintiff is the personal representative of the decedent’s estate. 6 ECF No. 336 at 1. However, she does not assert her wrongful death claim in that capacity. Thus, 7 she is free to bring it as an heir to the decedent. See Cal. Civ. Proc. Code § 377.60 (specifying 8 that children of the decedent can bring a wrongful death claim). Accordingly, Kindred’s motion 9 to dismiss should be denied as to plaintiff’s wrongful death claim. 10 11 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 13 caused the decedent’s death. ECF No. 341 at 19. They contend that the fifth amended complaint 14 fails to allege a proximate causal connection between the negligent conduct and the resulting 15 injury. Id. These defendants contend that the complaint establishes that they treated plaintiff at 16 EMC up until September 21, 2010, and the decedent then spent the next month at Kindred 17 Hospital where she died on October 20, 2010. Id. 18 “[I]t is a fundamental principle of tort law that there must be a legal duty owed to the 19 person injured and a breach of that duty which is the proximate cause of the resulting injury.” 20 Ileto v. Glock, Inc., 349 F.3d 1191, 1206. Although the determination as to whether an act is the 21 proximate cause of an injury is generally a question of fact, “it is a question of law where the 22 facts are uncontroverted and only one deduction or inference may reasonably be drawn from 23 those facts.” Id. 24 The operative complaint alleges that Valcarenghi, Verma, and Wilms were licensed 25 physicians that provided medical care to the decedent at EMC. ECF No. 336 at 8-9. Plaintiff 26 claims that on May 4, 2010, a nurse misplaced a PICC line into the decedent’s arm, which 27 resulted in bruising and swelling. Plaintiff alleges that Valcarenghi suspected a possible blood 28 clot, and therefore prescribed high levels of anticoagulants. Id. at 24-25. 21 1 Plaintiff further alleges that the decedent “died receiving anticoagulants at Defendant 2 Kindred Hospital Sacramento based on Dr. Dinesh Verma’s falsified discharge assessment and 3 transfer orders on September 21, 2010.” She also contends that Verma delayed performance of 4 an “urgent” tracheostomy for six days, and performed unnecessary and frequent bronchoscopies, 5 which damaged the lungs. Id. at 34-35. 6 As for Dr. Wilms, plaintiff alleges that he withheld “a necessary procedure,” a 7 thoracentesis, on June 13, 2010.” Id. at 35. She also claims that Wilms and Verma changed the 8 decedent’s medications to medications that were known to harm the decedent. Id. at 38. She 9 further contends that all three of these physicians ordered excessive x-rays, which resulted in 10 radiation burns and loss of hair. Id. at 34. 11 Although plaintiff generally alleges that these physicians engaged in conduct that caused 12 harm to the decedent, aside from the purported false discharge assessment and transfer order, she 13 fails to allege that any of these act resulted in the decedent’s death. Although plaintiff 14 specifically alleges that the decedent “died receiving anticoagulants at Defendant Kindred 15 Hospital Sacramento,” these three defendants provided care at EMC. Furthermore, plaintiff 16 explicitly alleges that the decedent “survived the mal-practice of the intestinal bleed that was 17 noted to be due to blood thinners (anticoagulants)” prescribed by Valcarenghi. Id. at 49. Thus, 18 the excessive dose of anticoagulants administered by Valcarenghi was not the proximate cause of 19 the decedent’s death. As for the unnecessary procedures and delay in performing a tracheostomy, 20 plaintiff only alleges that these actions caused harm. Plaintiff even concedes that the withheld 21 “thorenscentesis” was eventually performed and that [f]ollowing [the] procedure, Decedent’s 22 heartrate came back to sinus rhythm (normal) at 80 BOM from the 130-140 BPM it had been for 23 hours, her breathing returned to normal, and she was able to rest.” 24 The complaint is also devoid of any explanation for how Dr. Verma’s alleged false 25 discharge assessment and transfer order was the proximate cause of the decedent’s death. 26 Plaintiff fails to provide any factual allegations regarding how the discharge assessment and 27 transfer order were false, or how such false statements contributed to the decedent’s death. 28 ///// 22 1 2 3 4 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 5 a proximate causal connection between Dr. Kasza’s alleged negligence and the decedent’s death. 6 ECF No. 347-1. Plaintiff alleges that Dr. Kasza falsified the decedent’s “medical records during 7 a ‘Code Blue’ on June 15, 2010 to imply that Decedent had aspired and then required CPR, when 8 in fact, Decedent was caused to aspire during the aggressive CPR (witnessed by Plaintiff and 9 others), and then re-intubated, taken to ICU, and again placed on a ventilator.” ECF No. 336 at 9- 10 10. Plaintiff further alleges that after Kasza admitted the decedent to the ICU, he gave her 11 “medications that were known to cause her harm.” Id. at 45. 12 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 14 factual allegations that, if accepted as true, would permit a jury to find that Kasza’s conduct was 15 the proximate cause of the decedent’s death, which occurred four months later. Indeed, plaintiff 16 does not explicitly contend that this conduct caused the decedent’s death. Accordingly, the 17 wrongful death claim against defendant Kasza must be dismissed. 18 19 e) Defendants Lew and Avdalovic Defendant’s Lew and Avdalovic argue that plaintiff’s claim for wrongful death must be 20 dismissed because plaintiff has failed to allege any loss beyond her severe emotional distress. 21 ECF No. 342-1. “A plaintiff in a wrongful death action is entitled to recover damages for his own 22 pecuniary loss, which may include (1) the loss of the decedent’s financial support, services, 23 training and advice, and (2) the pecuniary value of the decedent’s society and companionship— 24 but he may not recover for such things as the grief or sorrow attendant upon the death of a loved 25 one, or for his sad emotions, or for the sentimental value of the loss.” Quiroz v. Seventh Ave. 26 Center, 140 Cal. App. 4th 1256, 1264 (2006). 27 28 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 23 1 suffering. Plaintiff specifically seeks damages for the “loss of society and companionship,” 2 which are available damages. ECF No. 336 at 50; Quiroz, 140 Cal. App. 4th at 1264. 3 Accordingly, defendants Lew and Avdalovic’s motion as to plaintiff’s wrongful death claim must 4 be denied. 5 e) Defendants Potter, Clark-Martin, and Stansell 6 Defendants Potter, Clark-Martin, and Stansell also argue that plaintiff’s wrongful death 7 claims against them fails because the operative complaint does not allege that they engaged in any 8 conduct that caused plaintiff’s death. ECF No. 340-1 at 31; ECF No. 343 at 7-8; ECF No. 344-1 9 at 14. 10 Here, the complaint fails to allege a direct link between Potter, Clark-Martin, and 11 Stansell’s conduct and the decedent’s death. These defendants are not healthcare providers, but 12 rather all acted as counsel in relation to the TRO and conservatorship proceeding. 13 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 15 Participation (S.L.A.P.P.) against Plaintiff Rickie L. Chipman and the family of Decedent Mary 16 A. Martin.” ECF No. 336 at 10-11. She further claims that defendant Stansell was appointed by 17 the state court judge to represent the decent in regards to the TRO and conservatorship 18 proceedings. Id. at 11. As far as the court can discern, Stansell allegedly breach her duty to the 19 decedent by only visiting her three times and committing perjury in relation to the state court 20 proceeding by stating that the decedent “doesn’t speak to me your honor.” Id. at 11-12. Plaintiff 21 further contends that Stansell “withheld her own October 8, 2010 Declaration, . . . [that] should 22 have immediately allowed the rightful release of Decedent and return her to the care of Plaintiff 23 and her family to promote Decedent’s well-being.” Id. at 12. As for Potter, the complaint alleges 24 that he was retained as counsel to obtain a conservatorship on behalf of plaintiff’s sister and the 25 family. Id. at 14. “Potter breached his duty by collaborating with Defendant Julie Clark-Martin 26 prior to the July 15th hearing to further enforce” the TRO. Id. 27 ///// 28 ///// 24 1 These factual allegations fail to demonstrate that any of these defendants contributed to 2 the decedent’s death. Rather, their involvement was limited to the state court proceedings, and 3 did not specifically involve treating decedent’s medical condition. 4 Moreover, plaintiff fails to demonstrate that defendants Potter and Clark-Martin owed any 5 duty to the decedent. The complaint specifically alleges that Potter was plaintiff’s counsel, and 6 that Clark-Martin represented EMI’s interest in the TRO and conservatorship matter. Neither 7 represented the decedent or owed any duty to her. 8 Lastly, plaintiff’s wrongful death claims against these defendants stems, at least in part, 9 from statements made in state court, and such statements are protected by California’s litigation 10 privilege. California Civil Code section 47(b) provides that communications made in or related to 11 judicial proceedings are absolutely immune from tort liability. Cal. Civ. Code § 47(b). The 12 California Supreme Court explains that the purpose of the privilege is “to afford litigants . . . the 13 utmost freedom of access to the courts without fear of being harassed subsequently by derivative 14 tort actions.” Silberg v. Anderson, 50 Cal. 3d 205, 213 (1990). “The litigation privilege applies 15 to any communications (1) made in a judicial proceeding; (2) by litigants or other participants 16 authorized by law; (3) to achieve the objects of the litigation; (4) that have some connection or 17 logical relation to the action.” Sharper Image Corp. v. Target Corp., 425 F. Supp. 2d 1056, 1077 18 (N.D. Cal. 2006) (citing Silberg, 50 Cal.3d at 212). Once these requirements are met, section 19 47(b) operates as an absolute privilege. Silberg, 50 Cal.3d at 216. “Any doubt about whether the 20 privilege applies is resolved in favor of applying it.” Kashian v. Harriman, 98 Cal. App. 4th 892, 21 913 (2002). 22 Plaintiff claims that both Stansell and Clark-Martin made false statements to the state 23 court in relation to the state court proceedings. Even if such statements were somehow 24 responsible for the decedent’s death, they would nevertheless be protected by California’s ligation 25 privilege. 26 For all of these reasons, plaintiff fails to state a wrongful death claim against defendants 27 Potter, Clark-Martin, and Stansell. 28 ///// 25 1 D. Leave to Amend 2 Plaintiff has now submitted six different complaints. Although the court only addressed 3 the sufficiency of the allegation in plaintiff’s first and fourth amended complaint, defendants have 4 moved to dismiss the other amended complaints due to deficiencies necessitating multiple 5 amendments. These motions provided plaintiff with notice of the pleading requirements and 6 identified various deficiencies in the complaints. Although plaintiff has been given numerous 7 opportunities to address the arguments raised by defendants, she continues to submit pleadings 8 that are disorganized, unintelligible, and lacking sufficient allegations to most of her purported 9 causes of actions, and claims that are simply barred as a matter of law. Accordingly, yet further 10 leave to amend is unwarranted. 11 IV. 12 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 13 Kimberly Merrifield. ECF No. 372. Merrifield, who had not previously appeared in this case, 14 filed an opposition and a related motion to set aside the clerk’s entry of default. ECF Nos. 375, 15 388. Merrifield argues that the clerk’s entry of her default should be set aside, and plaintiff’s 16 motion for default judgment denied, because she was never properly served. Id. at 2. As 17 explained below, the record demonstrates that Merrifield was not properly served in compliance 18 with Federal Rule of Civil Procedure 4, and therefore her motion to set aside entry default should 19 be granted and plaintiff’s motion for default judgment denied. 20 Plaintiff original complaint did not name Merrifield as a defendant to this action. ECF 21 No. 1. It was not until October 29, 2014, more than three years after this action commenced, that 22 plaintiff filed her fifth amended complaint, naming Merrifield as a defendant to this action for the 23 first time. ECF No. 336. On December 2, 2014, plaintiff filed a proof of service as to Merrifield. 24 ECF No. 362. The proof of service’s caption page indicates that defendant Merrifield “was 25 served her copy of the complaint . . . on October 29, 2014.” ECF No. 2. The proof of service 26 form does not identify the specific documents that were served, but indicates that Kathryn 27 Tisdale, who is not a registered California process server, personally served documents on 28 Merrifield on October 29, 2014. ECF No. 362-1. 26 1 On December 2, 2014, plaintiff requested the entry of Merrifield’s default (ECF No. 363), 2 which the clerk entered on December 4, 2014. ECF No. 371. Plaintiff then moved for default 3 judgment (ECF No. 372), and Merrifield subsequently moved to set aside her default. ECF No. 4 375. 5 Under Rule 55(a), the court must enter default against a party who has “failed to plead or 6 otherwise defend.” The court also has the power to set aside the entry of default “for good 7 cause.” Fed. R. Civ. P. 55(c). The U.S. Court of Appeals for the Ninth Circuit treats the standard 8 for good cause to set aside an entry of default under Rule 55(c) the same as the excusable neglect 9 standard for relief from judgment under Rule 60(b) (1). TCI Group Life Ins. Plan v. Knoebber, 10 244 F.3d 691, 697 (9th Cir. 2001); Franchise Holding II, LLC v. Huntington Restaurants Group, 11 Inc., 375 F.3d 922, 925–26 (9th Cir. 2004). In deciding whether good cause exists to set aside 12 default, the court considers: “(1) whether the plaintiff will be prejudiced, (2) whether the 13 defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the 14 default.” Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting 15 Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984)). This tripartite test is “disjunctive,” meaning that 16 the district court is free to deny the motion if any of these three factors is shown to exist. 17 American Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108–09 (9th Cir. 2000). 18 Of significance here, “[a] federal court does not have jurisdiction over a defendant unless 19 the defendant has been served properly under Fed. R. Civ. P. 4.” Direct Mail Specialists, Inc. v. 20 Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). “Entry of default must be set 21 aside if the defendant was not served properly.” Hale v. Evidencia Display, 2015 WL 4624881, 22 at *2 ( C.D. Cal. Aug. 3, 2015). 23 Defendant Merrifield does not dispute that she received a copy of the fifth amended 24 complaint from plaintiff. She explains, however, that she did not take any action upon receiving a 25 copy of the complaint because there was no summons included with the copy of the complaint. 26 ECF No. 375 at 3. She argues that default should be set aside because: (1) no summons was ever 27 issued by the court authorizing service on her; (2) no summons was delivered with the fifth 28 ///// 27 1 amended complaint; and (3) service of process was defective and therefore this court lacks 2 jurisdiction. Id. at 375. 3 Under the Federal Rules of Civil Procedure, to effect service of process “[a] summons 4 must be served with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). It is the plaintiff’s 5 responsibility to furnish the necessary copies of the summons and complaint to the person who 6 makes service. Id. Although “Rule 4 is a flexible rule that should be liberally construed so long 7 as a party receives sufficient notice of the complaint,” United Food & Commercial Workers 8 Union v. Alpha Beta Co., 376 F.2d 1371, 1382 (9th Cir. 1984), “without substantial compliance 9 with Rule 4 ‘neither actual notice nor simply naming nor naming the defendant in the complaint 10 will provide personal jurisdiction,’” Direct Mail Specialist, Inc., 840 F.2d at 688. 11 Plaintiff does not, and cannot, dispute that she failed to serve defendant Merrifield with a 12 copy of a summons. Review of the court’s docket indicates that a summons was never issued as 13 to defendant Merrifield. Although the clerk generally issues summons for each defendant upon 14 the filing of a complaint and payment of fees, it was ultimately plaintiff’s responsibility to obtain 15 a copy of the summons as to Merrifield. Fed. R. Civ. P. 4(b).14 There is no indication that 16 plaintiff ever attempted to obtain a summons for Merrifield from this court. As plaintiff failed to 17 properly serve defendant Merrifield, her default must be set aside. Hale, 2015 WL 4624881, at 18 *2 19 In any event, the court finds good cause exists to set aside default. Merrifield moved to 20 set aside entry of default less than a week after her default was entered. Although this action has 21 been pending for almost four years, Merrifield cannot be blamed for the significant delays in this 22 action. Indeed, she was first named as a defendant in plaintiff’s fifth amended complaint, more 23 than three years after plaintiff commenced this action. 24 ///// 25 26 27 28 14 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.” 28 1 Furthermore, the court agrees with Merrifield that she may have meritorious defenses to 2 plaintiff’s claims. As discussed above, the majority of plaintiff’s claims are brought in plaintiff’s 3 capacity as personal representative for the decedent, and such claims cannot be asserted in this 4 court without defeating diversity jurisdiction. 5 Lastly, Merrifield is not culpable for the entry of default. Plaintiff failed to obtain a 6 summons from this court and effectuate proper service on Merrifield. Accordingly, Merrifield is 7 not responsible for the entry of default. Therefore, defendant Merrifield’s motion to set aside 8 default should be granted, and plaintiff’s motion for default judgment denied. 9 V. Plaintiff’s Request to Subpoena Sealed Documents 10 Plaintiff requests the court to subpoena documents that were filed under seal in the Butte 11 County Superior Court. ECF No. 337. Plaintiff explains that she was not permitted to attend the 12 July 7, 2010 ex parte hearing held in the Butte County Superior Court relating to the TRO and 13 appointment of a conservatorship, and that the evidence submitted at this hearing has been filed 14 under seal by a state court judge. Id. at 2. Plaintiff claims that the sealed documents are “critical 15 for oral argument and discovery with regard to the initial perjury that led to the wrongful death of 16 Plaintiff’s mother . . . and the Intentional Infliction of Severe Emotion Distress to Plaintiff.” Id. 17 at 2.15 18 Pursuant to Federal Rule of Civil Procedure 45, a subpoena must issue from the court in 19 which the action is pending. Fed. R. Civ. P. 45(a)(1)(D)(2). “The clerk must issue a subpoena, 20 signed but otherwise in blank, to a party who requests it. That party must complete it before 21 service.” Fed. R. Civ. P. 45(a)(1)(D)(3). If the plaintiff intends to serve a subpoena that 22 commands the production of documents, prior to serving the subpoena the party must serve notice 23 and a copy of the subpoena on each party to the suit. Fed. R. Civ. P 45(a)(1)(D)(4). A court may 24 hold a party that fails to comply with its subpoena without adequate excuse in contempt of court. 25 Fed. R. Civ. P. 45(g). 26 27 28 15 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. 29 1 Plaintiff’s request indicates that she has been unable to obtain the sealed documents 2 despite her and her family’s multiple requests for the documents. ECF No. 337 at 2. Plaintiff, 3 however, does not claim that she obtained a subpoena from the clerk of this court or that she 4 served the appropriate party with a subpoena. Thus, it appears that plaintiff, rather than following 5 the procedures set forth in the Federal Rules of Civil Procures for subpoenaing documents from a 6 third party, simply wants this court to obtain discovery on her behalf. It is not the role of the 7 court to conduct discovery on behalf of plaintiff. Instead, she must follow the applicable rules, 8 which she has failed to do. Accordingly, plaintiff’s request is denied without prejudice. 9 V. 10 11 CONCLUSION Accordingly, it is hereby ORDERED that plaintiff’s request to subpoena state court documents (ECF No. 337) is denied. 12 Further, it is RECOMMENDED that: 13 1. Defendant Kindred’s motion to dismiss (ECF No. 338) be granted in part, and all of 14 plaintiff’s claims against Kindred, with the exception of her wrongful death claim, be dismissed 15 without leave to amend. 16 2. Defendant Lew and Avdalovic’s motion (ECF No. 342) be granted in part, and all of 17 plaintiff’s claims against Lew and Avdalovic, with the exception of her wrongful death claim, be 18 dismissed without leave to amend. 19 3. Defendant Matthews’s motion (ECF No. 345) be granted in part, and all of plaintiff’s 20 claims against Matthews, with the exception of her wrongful death claim, be dismissed without 21 leave to amend. 4. Defendant Potter, Valcarenghi, Wilms, Verma, Clark-Martin, Stansell, and Kasza’s 22 23 motions (ECF Nos. 340, 341, 343, 344, 347) be granted and plaintiff’s claims against these 24 defendants be dismissed without leave to amend. 5. Plaintiff’s motion for default judgment against defendant Merrifield (ECF No. 372) be 25 26 denied. 27 ///// 28 ///// 30 1 2 6. Defendant Merrifield’s motion to set aside default (ECF No. 375) be granted, and her default be set aside. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 DATED: September 11, 2015. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31

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