Baday v. County of Kings

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 KARLA BADAY, No. 1:20-cv-00644-ADA-SKO

12 Plaintiff, ORDER GRANTING, IN PART, AND

DENYING, IN PART, DEFENDANTS’

13 v. AMENDED MOTION TO DISMISS

PURSUANT TO FED R. CIV. P. 12(b)(6)

14 KINGS COUNTY, et al.,

(ECF No. 19)

15 Defendants.

ORDER GRANTING LEAVE TO AMEND

16 THE COMPLAINT WITHIN TWENTY-ONE

(21) DAYS

17

18 I.

19 Procedural Background

20 On May 6, 2020, Plaintiff filed a complaint asserting six causes of action against two

21 groups of defendants: (1) Kings County and certain county officials (hereinafter “County

22 Defendants”), and (2) Adventist Health Hanford and Georganne Greene, a nurse who works at

23 Adventist Health (hereinafter “Health Defendants”). (ECF No. 1.) On July 20, 2020, County

24 Defendants filed a motion to dismiss the claims against them. (ECF No. 14.) Health Defendants

25 filed their own amended motion to dismiss on August 4, 2020. (ECF No. 17.) After filing an

26 opposition to County Defendants’ motion, Plaintiff sought leave to amend the complaint to

27 address the pleading deficiencies regarding County Defendants, which the Magistrate Judge

28 granted. (ECF No. 22.) Plaintiff filed the First Amended Complaint (FAC) on September 3,

1 2020, and County Defendants withdrew their motion to dismiss. (ECF Nos. 23, 25.)

2 On September 9, 2020, Plaintiff filed an opposition to Health Defendants’ motion. (ECF

3 No. 26.) Health Defendants replied on September 17, 2020. (ECF No. 29.) Plaintiff then filed

4 the Second Amended Complaint (SAC) on February 17, 2021 in order to address certain

5 deficiencies regarding the claims against County Defendants. (ECF No. 39.) On February 18,

6 2021, pursuant to stipulation of the parties, the Magistrate Judge dismissed Defendant Daniel

7 Brown, a physician at Adventist Health, from the proceedings. (ECF No. 41.) County

8 Defendants proceeded to file an answer on March 23, 2021. (ECF No. 33.)

9 Plaintiff’s SAC states the following claims against Health Defendants. A claim under 42

10 U.S.C. § 1983 against both Adventist Health and Ms. Greene (Claim 1); a Monell claim under

11 section 1983 against Adventist Health only (Claim 2); a claim for supervisory liability under

12 section 1983 against Adventist Health only (Claim 3); a claim for negligence under California

13 state law against both Adventist Health and Ms. Greene (Claim 4); a claim under California

14 Government Code section 815.2 against Adventist Health only (Claim 5); and a claim under

15 California Civil Code section 52.1 against both Adventist Health and Ms. Greene (Claim 6).

16 The procedural history of this case presents an unusual situation. Plaintiff’s SAC

17 superseded both the initial complaint and FAC, and the Court, therefore, treats the earlier

18 complaints as if they do not exist. See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008

19 (9th Cir. 2015). The filing of an amended complaint would ordinarily moot a previously filed

20 motion to dismiss, like the one at issue in this case. LeBarron v. Interstate Group, LLC, No.

21 2:19-CV-1739 JCM (DJA), 2020 WL 2615900, at *3 (D. Nev. May 22, 2020). When the

22 amended complaint is substantially identical to the original, however, a court can rule on the

23 motion to dismiss with reference to the amended complaint. Id. “It would be futile to dismiss [a

24 defendant’s] motion without prejudice, only to have [the defendant] refile another motion to

25 dismiss with effectively the same arguments.” MMG Ins. Co. v. Podiatry Ins. Co. of America,

26 263 F. Supp. 3d 327, 331 (D. Me. 2017).

27 Here, Health Defendants filed their motion to dismiss after the FAC, but before the SAC.

28 In her request to the court to permit the filing of the SAC, Plaintiff noted that the amendments to

1 the FAC clarified only the allegations against County Defendants for deficient policies and

2 procedures. (ECF No. 36 at 2.) The SAC also added Deputy District Attorney Anna Marie

3 Samardich Tyner as a Defendant. (Id.) The allegations pertaining to Health Defendants are,

4 therefore, substantially identical to those in the FAC. Additionally, the parties filed a Joint Status

5 Report on September 9, 2022, in which they assert that the pending motion to dismiss is fully

6 briefed and still at issue. (ECF No. 59 at 3.) Based on this, the Court will proceed in addressing

7 Health Defendants’ motion to dismiss with reference to the Second Amended Complaint.

8 II.

9 Factual Background Related to the Claims Against Health Defendants

10 The claims in this matter arise from Plaintiff’s wrongful conviction in 2002 for sexually

11 abusing her girlfriend’s three minor children. At the time of the abuse allegations, Plaintiff and

12 her girlfriend, Maria Medina, had been together for two years and jointly cared for Ms. Medina’s

13 children, including then seven-year-old Karina, six-year-old Graciela, and three-year-old Fabian.

14 (ECF No. 39 at ¶ 20.) On February 8, 2002, Karina and Graciela told Ms. Medina that Plaintiff

15 had inappropriately touched them and Fabian six days before, while Ms. Medina was at the store.

16 (Id. at ¶ 22.) That same day, Ms. Medina brought her children to the Kings County Sheriff’s

17 Office, where they described the alleged abuse to a deputy. (Id. at ¶ 24.) The following day, Ms.

18 Medina took her children to Adventist Health Hanford for an interview with the Sexual Assault

19 Response Team (SART). (Id. at ¶ 27.) Kings County had contracted with Adventist Health to

20 provide forensic examination, analysis, and testimony regarding alleged sexual abuse. (Id. at ¶

21 14.) Georgeanne Green, the assigned SART nurse, decided not to conduct a physical

22 examination, after determining that the children were too agitated. (Id.)

23 About a month later, Ms. Medina’s children returned to the hospital for a physical

24 examination with Ms. Greene. (Id. at ¶ 28.) The Deputy District Attorney assigned to the case

25 reviewed, approved, and ratified this visit. (Id.) During the examinations, Ms. Greene

26 documented several physical abnormalities in each of the children. (Id. at ¶¶ 30, 31.) According

27 to Plaintiff, Ms. Greene’s findings did not provide evidence of physical abuse or prior injury.

28 (Id.) Ms. Greene also asked each child to describe the alleged abuse. (Id. at ¶ 29.) Contravening

1 established procedures for this type of investigation, Ms. Greene failed to interview the children

2 in their primary language. (Id. at ¶ 40.) She also conducted the interview without the assistance

3 of a trained forensic interviewer. (Id.) Even though Ms. Greene videotaped the interviews and

4 examinations, she did not provide the videotape to Plaintiff or her attorneys until years after

5 Plaintiff’s conviction. (Id. at ¶ 41.)

6 Less than two months after Ms. Greene’s examinations, the Kings County District

7 Attorney filed an information charging Plaintiff with three counts of lewd and lascivious acts on a

8 child under fourteen, two counts of forcible sexual penetration, and three counts of terrorist

9 threats. (Id. at ¶ 32.) The District Attorney’s case against Plaintiff hinged almost entirely on Ms.

10 Greene’s medical opinions and the testimony of Karina and Graciela. (Id. at ¶ 35.) Ms. Greene

11 testified to the content of the children’s prior statements. (Id. at ¶¶ 37–39.) She also testified

12 about the physical examinations she performed, asserting that the injuries to Graciela and Fabian

13 were consistent with their descriptions of sexual abuse. (Id.) After a two-day trial, the jury

14 convicted Plaintiff of all eight counts, and the judge sentenced her to forty-five years to life. (Id.

15 at ¶ 44.) Fifteen years later, Plaintiff filed a writ of habeas corpus, asserting that she had suffered

16 a wrongful conviction. (Id. at ¶ 45.) The Kings County District Attorney stipulated to the

17 reversal of Plaintiff’s convictions on the basis of newly discovered evidence, and a trial court

18 reversed Plaintiff’s sexual abuse convictions. (Id.) Plaintiff eventually pled guilty to three counts

19 of false imprisonment and received credit for time served. (Id.)

20 III.

21 Legal Standard

22 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

23 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

24 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

25 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

26 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the

27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a)

28 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state

1 a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

2 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “A claim has facial plausibility when the

3 plaintiff pleads factual content that allows the court to draw the reasonable inference that the

4 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In determining whether a

5 complaint states a claim on which relief may be granted, the court accepts as true the allegations

6 in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon

7 v. King & Spalding, 467 U.S. 69, 73 (1984). It is inappropriate to assume that the plaintiff “can

8 prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that

9 have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of

10 Carpenters, 459 U.S. 519, 526 (1983).

11 IV.

12 Discussion

13 A. Claims pursuant to 42 U.S.C. § 1983 (Claims 1, 2, and 3)

14 To begin, the Court must address two features of Plaintiff’s section 1983 allegations.

15 First, Plaintiff names Adventist Health as a defendant under the first two claims of relief: (1)

16 liability under 42 U.S.C. § 1983 and violation of Article 1, section 7 of the California

17 Constitution; and (2) liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). (ECF

18 No. 39 at §§ VII(A)–(B).) To the extent that Plaintiff asserts both these claims to vindicate

19 federal constitutional rights, they are duplicative as they relate to Adventist Health. As discussed

20 below, Monell provides the avenue by which Plaintiff can assert section 1983 liability against a

21 private entity like Adventist Health. It is proper, therefore, to dismiss the first claim against

22 Adventist Health and assess its liability under the second claim only.

23 Second, to the extent Plaintiff attempts to use section 1983 as a vehicle to vindicate her

24 right to due process under Article I, section 7 of the California Constitution, that claim fails.

25 Section 1983 “does not provide a remedy for abuses that do not violate federal law.” Collins v.

26 City of Harker Heights, 503 U.S. 115, 119 (1992).

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1 i. Health Defendants acted “under color of law.”

2 Title 42 U.S.C. § 1983 provides a cause of action through which individuals may

3 vindicate “the deprivation of any rights, privileges, or immunities secured by the Constitution and

4 laws” of the United States. See Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

5 2006). To state a claim under section 1983, a plaintiff must allege (1) a violation of a federal

6 right, and (2) that the entity or person committing the violation acted under “color of state law.”

7 West v. Atkins, 487 U.S. 42, 48 (1988). Private conduct is performed under the color of state law

8 when there is “significant” state involvement. Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir.

9 1983). While courts have developed several tests to help make this determination, there is no

10 governing formula. See id. at 383. Regardless of the test they employ, courts must conduct a

11 factual inquiry to determine when state involvement transforms private conduct into state action.

12 Howerton, 708 F.2d at 383 (citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722

13 (1961); see also Lopez v. Dep’t of Health Serv., 939 F.2d 881, 883 (9th Cir. 1991). “[N]o one

14 fact can function as a necessary condition across the board for finding state action; nor is any set

15 of circumstances absolutely sufficient . . ..” Brentwood Acad. v. Tenn. Secondary Sch. Athletic

16 Ass’n, 531 U.S. 288, 295 (2001). In the context of healthcare providers, the existence of a

17 comprehensive statutory or regulatory scheme will not, alone, support a finding of state action.

18 See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Nor will the mere receipt of federal funds

19 transform a private hospital into a state entity. See Watkins v. Mercy Med. Ctr., 520 F.2d 894,

20 896 (9th Cir. 1975). Additionally, when private hospitals and medical practitioners make medical

21 decisions unencumbered by the state’s coercive power, no state action is involved. See Blum, 457

22 U.S. at 1011–12.

23 Health Defendants argue that they cannot be liable under section 1983 because their

24 actions were of the kind in which private healthcare professionals engage routinely. (ECF No. 19

25 at 13). They assert that their contract with Kings County to perform child sexual assault exams

26 did not transform a traditional function of a nurse and hospital into state action. (Id.)

27 Specifically, because individuals can request a SART exam without government involvement,

28 and because the exams have functions beyond criminal investigation, the administration of SART

1 exams at private hospitals can never constitute state action. (ECF No. 29 at 7.) Plaintiff argues

2 that, because the state delegated to Health Defendants the responsibility of conducting forensic

3 investigations, they acted under color of state law. (ECF No. 26 at 17.) The dispute is one of

4 framing: was the interaction between Ms. Greene and the children a medical examination or a

5 forensic investigation? As discussed below, Plaintiff has alleged sufficient facts to indicate that it

6 was the latter, demonstrating that Health Defendants were acting under color of state law.

7 Health Defendants rely heavily on Wittner v. Banner Health, 720 F.3d 770 (10th Cir.

8 2013). (See ECF No. 29 at 7–8.) There, a private physician authorized an involuntary mental

9 health hold, pursuant to Colorado state law. Wittner, 720 F.3d at 771. While the detained

10 individual was at the hospital, a nurse injected him with antipsychotic medication that caused

11 cardiac arrest and, eventually, death. Id. at 771–72. Because Colorado law permitted private

12 hospitals to take patients into involuntary custody for mental health holds, the plaintiff argued that

13 the hospital, doctor, and nurse functioned as state actors. Id. at 773. As relevant here, the Tenth

14 Circuit Court of Appeals held that the plaintiff did not allege collusion with government officials

15 that would constitute joint action. Id. at 777. In fact, the plaintiff had named no government

16 officials as defendants. Id. at 774. The court also noted that the plaintiff had not demonstrated a

17 symbiotic relationship between the hospital and state. Id. at 779. The statutory scheme did not

18 mandate placement at the hospital of, or particular treatment for, individuals subject to

19 involuntary mental health holds; nor did the plaintiff allege government involvement in, or

20 contracts regarding, patient care. Id.

21 Wittner serves as a poor analogy for this case because the plaintiffs there asserted state

22 action solely based on the existence of a statutory scheme authorizing involuntary mental health

23 holds. Id. at 774 (“Plaintiffs’ state action theory, as set out in the complaint, hinges entirely on

24 the state statutory scheme allowing seventy-two-hour involuntary mental health holds . . ..”). In

25 fact, the Ninth Circuit has found private medical professionals to be liable under section 1983 in

26 similar circumstances. In Jensen v. Lane County, 222 F.3d 570, 573, a private psychiatrist twice

27 signed orders, pursuant to state law, permitting law enforcement to detain the plaintiff in order to

28 conduct a mental health examination. In finding that the psychiatrist acted under color of law, the

1 Ninth Circuit pointed to three facts: (1) county employees were the ones to initiate the evaluation

2 process leading to involuntary commitment; (2) private psychiatrists consulted extensively with

3 county employees about the process; and (3) private psychiatrists helped to develop the county’s

4 mental health policies. Id. Plaintiff’s citation to Kraft v. Laney, No. CIV S-04-0129 GGH, 2005

5 WL 2042310 (E.D. Cal. Aug 24, 2005) is even more apt. The statute at issue there regulated

6 investigatory blood draws following arrests for driving under the influence. See id. at *12. In

7 finding state action, the court pointed beyond the existence of the statute to the longstanding and

8 formalized relationship between the police and hospital that conducted the blood draws. Id. at

9 *12–13; see also Billups v. Penn State Milton S. Hershey Med. Ctr., 910 F.Supp.2d 745, 757

10 (finding sufficient allegations of state action to survive motion to dismiss where defendant

11 doctors examined child in state custody for the sole purpose of assisting government agencies in

12 investigating child abuse allegations); cf. Manda v. Albin, No. 5:19-cv-01947, 2019 WL 6311380

13 at *10–*11 (N.D. Cal. Nov. 25, 2019) (not finding state action where private physician falsely

14 reported child neglect on her own volition and not pursuant to any contract with the state).

15 Here, like the plaintiffs in Jensen and Kraft, Plaintiff has alleged a connection between

16 Health Defendants and the government that goes beyond the statutory scheme regulating

17 assessment of child abuse victims. The SAC alleges that Health Defendants had a contract with

18 Kings County “to provide forensic examination, analysis, and testimony with respect to alleged

19 sexual abuse.” (ECF No. 39 at ¶¶ 13, 14.) While the allegation that the Kings County District

20 Attorney’s office “reviewed, approved, and ratified,” (id. at ¶ 28), the physical examination of the

21 children is a conclusory statement, other facts alleged in the SAC support the inference of state

22 involvement. The children’s first visit to the SART occurred on the day immediately following

23 their interview at the Kings County Sheriff’s Department. (See id. at ¶¶ 24, 27.) On that day,

24 they did not undergo any physical examination, (id. at ¶ 27), indicating that there were no

25 immediate health or safety issues that Ms. Greene had to address. The children then returned a

26 month later. (Id. at ¶ 28.) During that visit, Ms. Greene interviewed the children and conducted a

27 physical examination. (Id. at ¶¶ 29–32.) The interview consisted of leading questions, (id. at ¶

28 29), – a type of inquiry suited more toward establishing a timeline than assessing or treating

1 psychological traumas. Despite discovering a number of “abnormalities” during the physical

2 examination, (id. at ¶¶ 30–31), there is no indication that Ms. Greene provided any medical

3 treatment herself or referred the children for treatment with other physicians. Significantly, Ms.

4 Greene videotaped the examinations, (see id. at ¶ 41), indicating a need to record results for

5 purposes beyond treatment. These factual allegations set forth a plausible scenario in which Ms.

6 Greene provided forensic investigatory services at the direction of the state. The fact that Ms.

7 Greene later testified for the government at Plaintiff’s trial – a service for which the government

8 generally retained her outside of this one case, (id. at ¶ 13), – only serves to bolster this inference.

9 These facts and inferences put this case beyond the scope of both Wittner and Jensen and

10 in a camp more similar to Kraft. In Wittner and Jensen, the private physicians made medical

11 determinations that involuntary commitment was necessary to serve the health and safety of the

12 individuals in question. Health Defendants assert that Ms. Greene acted similarly in this case

13 because SART exams can have purposes outside of criminal investigation, such as providing for

14 the health and safety of a victim. (ECF No. 29 at 7.) They also assert that the government is not

15 always involved in the administration of these exams. (Id.) What “could be” is not, however, the

16 same as what was. While the general purpose of SART exams is relevant to the analysis, it is the

17 application of the exams on the facts of this case that determines whether there was state action.

18 The SAC sufficiently alleges that the purpose of Ms. Greene’s examinations was not to assess or

19 preserve the children’s health, but rather to conduct an investigation to aid in Plaintiff’s

20 prosecution. Health Defendants were, therefore, acting under color of state law.

21 ii. The Eleventh Amendment does not shield Health Defendants from suit.

22 The Eleventh Amendment shields states, their agencies, and officers acting in their official

23 capacities from lawsuits for damages. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

24 89, 99–103 (1984); Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988).

25 Though states may waive their immunity, the language of section 1983 does not abrogate this

26 immunity. Quern v. Jordan, 440 U.S. 332, 344–45 (1979).

27 Health Defendants argue that, if they are state actors for the purposes of section 1983

28 liability, then they should be entitled to the protections of Eleventh Amendment immunity. (ECF

1 No. 19 at 18–19.) A case that both parties cite to support their positions – Del Campo v.

2 Kennedy, 517 F.3d 1070 (9th Cir. 2008) – is directly on point. (See ECF No. 26 at 18; ECF No.

3 29 at 9.) There, a private corporation contracted with the Santa Clara County District Attorney to

4 run a diversion program. Del Campo, 517 F.3d at 1072. The Ninth Circuit held that the Eleventh

5 Amendment can never apply to private entities; even considering Eleventh Amendment immunity

6 would be a “category error.” Id. at 1078. Not only do Health Defendants urge the Court to

7 undergo an Eleventh Amendment analysis, but they also mischaracterize Del Campo’s language.

8 (ECF No. 29 at 9.) Health Defendants allude to certain factors that courts use to determine when

9 Eleventh Amendment immunity applies to an entity, but those factors are “designed to

10 discriminate between governmental bodies, not to determine whether private entities are arms of

11 the state.” Id. at 1077. Health Defendants also assert that one factor, “whether the entity

12 performs central government functions,” is “of particular importance.” (ECF No. 29 at 9.) This

13 factor is particularly important only to the extent that it is the only one that “could ever cut in

14 favor of granting a private entity sovereign immunity.” 1 Del Campo, 517 F.3d at 1077 (emphasis

15 in original). Del Campo makes clear, however, that a private entity will always fail the Eleventh

16 Amendment analysis, even if this one factor were to cut in favor of granting sovereign immunity.

17 Id. The only fact relevant to this analysis is the private nature of the entity – the nature of the

18 contract between the private entity and the government, the behavior of the private entity, and the

19 allegations against the entity are irrelevant. Id. at 1078–79.

20 Defendants’ invocation of Vance v. Cnty. of Santa Clara, 928 F. Supp. 993 (N.D. Cal.

21 1996) is equally unavailing. (See ECF No. 29 at 10.) In that case, the district court dismissed a

22 county department of corrections as an improper defendant under a section 1983 cause of action.

23 Id. at 995–96. First, the Vance court addressed whether the department of corrections qualified as

24 a “person” within the language of section 1983. It did not address any arguments about the

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1 Del Campo discusses five factors relevant to determining whether governmental agencies are subject to Eleventh

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Amendment immunity: “(1) whether a money judgment would be satisfied out of state funds; (2) whether the entity

performs central governmental functions; (3) whether the entity may sue or be sued; (4) whether the entity has the

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power to take property in its own name or only in the name of the state; and (5) the corporate status of the entity.”

(Del Campo, 517 F.3d at 1077 (quoting United States ex rel. Ali v. Daniel, Mann, Johnson, & Mendenhall, 355 F.3d

28 1140, 1147 (9th Cir. 2004)).

1 applicability of the Eleventh Amendment. Even if the court impliedly addressed the Eleventh

2 Amendment analysis, such a decision would have no impact on this case. The department of

3 corrections at issue in Vance was admittedly an arm of the government – a public entity. Id. at

4 995. Based on the SAC and the parties’ briefing, the Court finds that Adventist Health is a

5 private entity, and that Ms. Greene is a private citizen. That fact is the very basis for Health

6 Defendants’ objection to liability under section 1983. Therefore, the Court finds that the

7 Eleventh Amendment provides no protection to Health Defendants.

8 iii. The statute of limitations does not bar Plaintiff’s section 1983 claims.

9 State law regarding personal injury torts governs the applicable statute of limitations for

10 section 1983 claims. Wallace v. Kato, 549 U.S. 384, 387 (2007). In California, where the events

11 at issue in this case occurred, the applicable statute of limitations is two years.2 Cal. Code Civ. P.

12 § 335.1. Determining when a section 1983 cause of action has accrued, however, is a question of

13 federal law. Wallace, 549 U.S. at 388. Accrual occurs at the time a “ ‘plaintiff can file suit and

14 obtain relief.’” Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar

15 Corp. of Cal., 522 U.S. 192, 201 (1997). The first step in the accrual analysis is to determine

16 which constitutional right is at issue. Manuel v. Joliet, 137 S. Ct. 911, 920 (2017). After

17 determining the right, courts next look to the common law of torts to define the contours of the

18 section 1983 claim. Id. “Common law principles are meant to guide rather than to control the

19 definition of § 1983 claims, serving ‘more as a source of inspired examples than of prefabricated

20 components.’” Id. at 921 (quoting Hartman v. Moore, 547 U.S. 250, 258 (2006)).

21 Plaintiff asserts violations of the due process clauses of the Fifth and Fourteenth

22 Amendments, arguing that Health Defendants fabricated evidence and failed to disclose

23 exculpatory evidence. (ECF No. 39 at 62.) The failure of investigators to disclose exculpatory

24 evidence resulting in incarceration is a recognized due process violation. See Tatum v. Moody,

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2 Health Defendants insist that the applicable statute of limitation is one year by citing to Kimes v. Stone, 84 F.3

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1121, 1128 (9th Cir. 1996). (ECF No. 19 at 14; ECF No. 29 at 15.) As discussed above, state law, not Ninth Circuit

precedent, governs the applicable statute of limitations. Kimes was decided in 1996, when the applicable statute of

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limitations was one year. On January 1, 2003, California Code of Civil Procedure section 335.1 became effective,

creating a two-year statute of limitations for personal injury torts. Section 335.1 was in effect in 2019, when

28 Plaintiff’s claim accrued.

1 768 F.3d 806, 816 (9th Cir. 2014). Additionally, section 1983 recognizes suits based on the

2 deliberate fabrication of evidence. See Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir.

3 2001). It is not entirely clear to the Court, however, that Plaintiff is asserting a claim based on the

4 deliberate fabrication of evidence. In her briefing, Plaintiff states that “Ms. Greene conducted a

5 reckless exam of the children that resulted in fabricated findings of abuse.” (ECF No. 26 at 23.)

6 This statement elides a deliberate fabrication of evidence allegation with one based on conducting

7 a reckless investigation that “shocks the conscience.” Courts have held that the latter can

8 constitute a due process violation, but they apply a different standard than for fabrication of

9 evidence claims.3 See Wilson v. Lawrence Cnty., Mo., 260 F.3d 946 (8th Cir. 2001); Amrine v.

10 Brooks, 522 F.3d 823, 833 (8th Cir. 2008); Figueroa v. Kern Cnty., No. 1:19-cv-00558-DAD-

11 JLT, 2021 WL 826216, at *6–*7 (E.D. Cal. Mar. 4, 2021). Though the Court will address this

12 distinction later, it is not meaningful for the statute of limitations analysis. The Court agrees that

13 fabrication of evidence and reckless investigation claims conform to the same common law tort.

14 Plaintiff argues that the alleged constitutional violations are analogous to the common law

15 tort of malicious prosecution. (See ECF No. 26 at 27–28 (arguing that Plaintiff’s due process

16 claims are analogous to those the Supreme Court addressed in Heck v. Humphrey, 512 U.S. 477

17 (1994) and McDonough v. Smith, 139 S. Ct. 2149 (2019), which both analyzed the statute of

18 limitations under a malicious prosecution framework).) Health Defendants argue that malicious

19 prosecution is an ill fit because they are not the ones who prosecuted Plaintiff. (ECF No. 29 at

20 14.) Rather, they argue, the allegations are more analogous to negligence and fraud claims. (Id.)

21 At the outset, the Court notes that a constitutional violation can resemble more than one common

22 law tort. See McDonough v. Smith, 139 S. Ct. at 2156 n.5. While the allegations against Health

23 Defendants sound in both fraud and negligence, the Court agrees that the most apt comparison is

24 to malicious prosecution. Health Defendants’ argument that they were not the entity that

25 prosecuted Plaintiff in court is irrelevant to this analysis. Any party who plays an active role in

26 assisting a prosecution, not just the criminal prosecutors themselves, can be liable for malicious

27 prosecution. See Pacific Gas & Electric Co. v. Bear Stearns & Co., 791 P.2d 587, 593 n.11 (“A

28 3 There is no binding Ninth Circuit case law on this point. Figueroa, 2021 WL 826216, at *6.

1 person who is injured by groundless litigation may seek compensation from any person who

2 procures or is actively instrumental in putting the litigation in motion or participates after the

3 institution of the action.”); Nunez v. Pennisi, 193 Cal. Rptr. 3d 912, 923 (Cal. Ct. App. 2015).

4 Moreover, as Plaintiff demonstrates, courts have held that the analogy to malicious prosecution

5 works best for claims of fabricated evidence and failure to disclose exculpatory evidence. See

6 e.g., Bradford v. Scherschligt, 803 F.3d 382, 387–88 (9th Cir. 2015) (fabricated evidence); Owens

7 v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 390 (4th Cir. 2014) (Brady claims).

8 Claims analogous to the common law tort of malicious prosecution that challenge the

9 integrity of a conviction do not accrue until criminal proceedings against the plaintiff have

10 terminated in her favor. McDonough, 139 S. Ct. at 2154–55. This “favorable-termination

11 requirement is rooted in pragmatic concerns with avoiding parallel criminal and civil litigation

12 over the same subject matter and the related possibility of conflicting civil and criminal

13 judgments.” Id. at 2157 (citing Heck, 512 U.S. at 484–85). Health Defendants argue that these

14 concerns do not exist in this case because, at the time of her criminal case, “Plaintiff did not have

15 to worry about filing a civil suit against the very person prosecuting her.” (ECF No. 29 at 14.)

16 Health Defendants misapprehend the basis for this rule. The favorable termination requirement is

17 not concerned with the awkwardness of suing a prosecutor during an ongoing criminal case.

18 Rather, it is concerned with promoting the finality of criminal convictions and respect for state

19 court decisions. See McDonough, 139 S. Ct. at 2157. Here, Plaintiff alleges that Ms. Greene’s

20 observations and testimony sat at the core of the prosecution’s case against her for sexual assault.

21 (ECF No. 39 at ¶ 35.) Filing a lawsuit based on the admission of such evidence would

22 necessarily call into question the integrity of Plaintiff’s conviction. Therefore, the earliest

23 Plaintiff could have filed her complaint was March 29, 2019. As discussed above, the applicable

24 statute of limitations at that time of accrual was two years. Plaintiff initiated this lawsuit on May

25 6, 2020, well within that two-year window. The Court cannot find that the statute of limitations

26 bars suit against Health Defendants for Plaintiff’s section 1983 claims.

27 ///

28 ///

1 iv. Plaintiff has failed to allege sufficient facts to hold Adventist Health liable

2 under Monell.

3 In Monell v. Dep’t of Soc. Servs., 436 U.S. at 690, the Supreme Court held that

4 municipalities and other local government units qualify as “persons,” and are therefore subject to

5 lawsuits, under section 1983. To make out a claim under Monell, a plaintiff must show that

6 alleged constitutional injuries are a result of the government’s policy or custom. Id. at 694.

7 Plaintiffs cannot rely merely on a theory of respondeat superior. Id. at 690. Monell liability can

8 derive either from affirmative governmental action or omissions – such as a failure to train or

9 failure to supervise – that lead government employees to cause constitutional injuries. Tsao v.

10 Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012); see City of Canton v. Harris, 489 U.S.

11 378, 387 (1989) (failure to train); Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir.

12 1989) (failure to supervise). The Ninth Circuit has held that Monell liability extends to private

13 entities acting under color of state law.4 Tsao, 698 F.3d at 1139.

14 To establish a policy of omission, plaintiffs must show (1) that the government’s custom

15 or policy amounts to deliberate indifference to the constitutional right at issue, and (2) the custom

16 or policy was “the moving force behind the employee’s violation of constitutional rights.” Long

17 v. Cnty. of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). A showing of deliberate

18 indifference requires proof that the government disregarded a known or obvious consequence of

19 its failure to train or supervise. See Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing Board

20 of Comm’rs of Bryan Cnty v. Brown, 520 U.S. 397, 410 (1997)). It is “ordinarily necessarily” to

21 demonstrate a pattern of constitutional violations to make out a Monell claim based on a failure to

22 train or supervise. Id. at 62. Such proof shows that policymakers were on notice regarding the

23 constitutional deficiencies of a training or supervision program and chose to perpetuate it. Id.

24 There are cases, however, where “the need for more or different training [or supervision] is so

25

4 Defendants cite to Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014) in an apparent attempt to

convince this Court that Monell does not apply to private entities. (ECF No. 29 at 10.) If that were the holding of

26

Shields, Defendants’ argument would be one that inappropriately asks this Court to contravene established Ninth

Circuit precedent. Even a cursory glance at Shields, however, demonstrates that it re-asserts Seventh Circuit

27

precedent extending Monell liability to private entities. Id. The real force of Shields is that it makes the case for

expanding section 1983 liability of private entities to include suits based on respondeat superior theories. See id. at

28 790–96.

1 obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the

2 policymakers . . . can reasonably be said to have been deliberately indifferent to the need.”

3 Harris, 489 U.S. at 390. Such single-incident cases are rare, and they only occur when the

4 consequences of failing to train or supervise are “patently obvious.” Kirkpatrick v. Cnty. of

5 Washoe, 843 F.3d 784, 794 (9th Cir. 2016) (quoting Connick, 563 U.S. at 63).

6 The SAC alleges that Health Defendants fabricated evidence and failed to disclose

7 exculpatory evidence. (ECF No. 39 at ¶ 58.) Health Defendants argue that Plaintiff’s failure to

8 allege a pattern of such behavior forecloses the possibility of liability under Monell. (ECF No. 19

9 at 20.) In the alternative, Health Defendants argue that Ms. Greene’s alleged conduct was so

10 obviously unconstitutional that any lack of training or supervision is irrelevant. (Id.) Considering

11 the complaint’s allegations in the light most favorable to Plaintiff, the Court agrees that the

12 complaint fails to state facts sufficient to find that Adventist Health was on notice of Ms.

13 Greene’s alleged constitutional violations.

14 Here, again, the Court must address the nature of Plaintiff’s “fabricated evidence” claim

15 because Plaintiff’s ability to cure the complaint’s deficiencies depends on Ms. Greene’s alleged

16 state of mind. The term “fabricated evidence” implies intentional action on the part of Ms.

17 Greene – either falsifying documents or committing perjury. If this were the case, the Court

18 would agree with Health Defendants that Plaintiff would need to show a pattern of behavior in

19 order to make out a Monell claim. Such conduct would be blatantly unconstitutional and illegal,

20 and it would be unreasonable to blame any policy or custom of Adventist Health as the cause for

21 a single instance. See Flores v. Cnty. of Los Angeles, 758 F.3d 1154, 1160–61 (9th Cir. 2014)

22 (holding that county cannot be held liable for failure to train officers not to commit sexual

23 assaults based on single incident because of the “clear criminality” of such conduct); Walker v.

24 City of New York, 974 F.2d 293, 299–300 (2d Cir. 1992) (holding that the obligation not to

25 commit perjury was so obvious that a failure to train or supervise would not have had an effect on

26 the officers’ ultimate decision to testify falsely).

27 ///

28 ///

1 If, however, Plaintiff is alleging that Ms. Greene conducted an investigation so reckless

2 that it violated due process, a pattern of prior instances may not be necessary.5 For example, it

3 could be sufficient for Plaintiff to allege that Adventist Health had no supervision policy at all.

4 See Kirkpatrick, 843 F.3d at 796 (holding that proving a pattern not necessary where county had

5 no policy in place to train social workers regarding when it was necessary to obtain a warrant

6 prior to removing children from parental custody); Gregory v. City of Louisville, 444 F.3d 725,

7 753–54 (6th Cir. 2006) (holding that plaintiff alleged sufficient facts to survive summary

8 judgment on a Monell claim where evidence indicated training for officers on handling

9 exculpatory material was “nonexistent”). Based on the allegations in the complaint, the nature of

10 Ms. Greene’s role on the SART appears to have been one closely tied to law enforcement and

11 frequently involved in the county’s prosecutorial mechanism. This role would require both

12 specialized medical and legal training, the complete absence of which would show deliberate

13 indifference to the constitutional rights of criminal defendants. Plaintiff does allege that the

14 Kings County Sheriff’s Department and District Attorney’s Office “entirely lacked a mechanism

15 for supervision and formal review” of SART conduct. (ECF No. 39 at ¶ 41.) Without more,

16 however, the Court cannot impute this blanket lack of supervision on the part of the county to

17 Adventist Health. At another point in the SAC, Plaintiff alleges that both Health Defendants and

18 County Defendants had “no or inadequate training and supervisions” regarding the SART

19 employees and examinations. (Id. at ¶ 72(i)–vi.) This conclusory statement implies that

20 Adventist Health may have had some form of supervision, but the Court cannot discern any

21 specifics regarding that policy or how it may have been inadequate apart from this isolated

22 incident. Plaintiff has, therefore, failed to meet her burden to demonstrate that Adventist Health

23 is liable for inadequate training or supervision of Ms. Greene. The third claim, as applied to

24 Adventist Health, is dismissed, without prejudice.

25 ///

26 ///

27 ///

28 5 The following analysis also applies to the allegation that Ms. Greene failed to disclose exculpatory evidence.

1 v. Adventist Health cannot be sued pursuant section 1983 under a theory of

2 supervisory liability.

3 Plaintiff’s claim that Adventist Health is subject to supervisory liability is either

4 duplicative of her Monell claim or attempting to assert a theory based on respondeat superior. In

5 either case, the court must dismiss it. As discussed above, the Ninth Circuit has engrafted the

6 Supreme Court’s Monell framework, in full, onto private entities. See Tsao, 698 F.3d at 1139.

7 Under this framework, private entities cannot be liable under a section 1983 cause of action solely

8 on the basis of a respondeat superior theory. See id. at 1139, 1143–44. Plaintiff’s third claim, as

9 applied to Adventist Health, is dismissed, with prejudice.

10 B. Claims pursuant to California state law (Claims 4, 5, and 6)

11 i. The Court will exercise subject matter jurisdiction over the state law claims

12 as they relate to Ms. Greene only.

13 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

14 America, 511 U.S. 375, 377 (1994). Congress, through statute, determines the extent of a district

15 court’s subject matter jurisdiction. Hamer v. Neighborhood Housing Servs. of Chicago, 138 S.

16 Ct. 13, 17 (2017). For example, and as relevant here, 28 U.S.C. § 1331 confers jurisdiction over

17 cases “arising under the Constitution, laws, or treaties of the United States.” When a case raises

18 such a federal question, courts may also exercise supplemental jurisdiction over related state law

19 claims stemming from the same case or controversy. See 28 U.S.C. § 1367(a). The party

20 asserting federal court jurisdiction has the burden of establishing that the federal court has

21 jurisdiction over the matter. Kokkonen, 511 U.S. at 377.

22 While Plaintiff failed to allege supplemental jurisdiction in her initial complaint, she

23 subsequently remedied that deficiency: Plaintiff’s SAC alleges supplemental jurisdiction over the

24 state law claims in this case. (ECF No. 39 at ¶ 6.) The basis for Plaintiff’s state law claims stem

25 from the same events giving rise to the federal question claims. Because the Court is dismissing

26 the section 1983 claims against Adventist Health, however, it will decline, at this time, to exercise

27 supplemental jurisdiction as to Adventist Health only, pursuant to 28 U.S.C. § 1367(c)(3).

28 Therefore, the following discussion regarding Plaintiff’s state law claims addresses only the

1 fourth and sixth claims as they relate to Ms. Greene.

2 ii. California’s statute of limitations bars Plaintiff’s state law claims.

3 The California Supreme Court has held that the rule in Heck v. Humphrey barring civil

4 suits necessarily invalidating a plaintiff’s prior criminal conviction applies with equal force to

5 state law tort claims. Yount v. City of Sacramento, 183 P.3d 471, 484 (Cal. 2008). In so doing,

6 the Yount court reiterated the concern in Heck regarding the use of civil suits as mechanisms of

7 collateral attack against criminal convictions. Id. at 480 (citing Heck, 512 U.S. at 484). To

8 determine when a state tort suit is Heck-barred, California courts employ a three-part test. Yount,

9 183 P.3d at 478–79. First, the court determines the “acts or omissions” that formed the factual

10 basis for the conviction. Id. at 479. Then, the court determines what alleged misconduct forms

11 the factual basis for the civil rights suit. Id. Finally, the court considers the relationship between

12 the first two steps. Id.

13 Health Defendants argue that Yount is inapplicable because the California Supreme Court

14 in that case held that Heck did not bar the plaintiff’s civil suit.6 (ECF No. 29 at 15.) The state

15 court’s announcement of a rule adopting the reasoning in Heck, however, is not the same as that

16 court’s application of the rule to the facts at issue in that case. Employing the Yount analysis, in

17 this case, the Court finds that (1) Plaintiff has alleged that Ms. Greene’s interviews and physical

18 examinations of the children were acts that sat at the very core of the government’s criminal case

19 against Plaintiff; (2) Ms. Greene’s conduct during and after the interviews and examinations

20 forms the factual basis for the instant suit against her; and (3) not only are the facts alleged in the

21 first two steps related, but they are nearly identical.

22 Put another way, Plaintiff alleges that, Ms. Greene was, at the very least, reckless in

23 failing to employ appropriate procedures and protocols for interviewing the children and

24 performing physical examinations, thereby causing Plaintiff to suffer a conviction and

25

6 Health Defendants partially misread the holding of Yount. In that case, the plaintiff had entered a guilty plea to,

26

among other charges, misdemeanor resisting an officer after an extended struggle during which he bit, spat at, cursed

at, and kicked the arresting officers. Yount, 183 P.3d at 476. During this struggle, one officer shot the plaintiff in the

27

upper thigh. Id. The California Supreme Court held that the plaintiff’s conviction did not bar a section 1983 claim

asserting the unjustified use of deadly force. Id. at 481. It did, however, bar any claim alleging only unlawful arrest

28 or the use of reasonable force to respond to the plaintiff’s resistance. Id. at 482.

1 confinement for sexual abuse charges. (ECF No. 39 at ¶ 83.) To succeed on this theory, Plaintiff

2 must demonstrate that, but for Ms. Greene’s conduct during her investigation, Plaintiff would not

3 have suffered a conviction and subsequent imprisonment for sexual abuse charges. Succeeding

4 on this claim, therefore, would necessarily imply the invalidity of Plaintiff’s prior conviction and

5 imprisonment. See Jones v. Whisenand, 214 Cal. Rptr. 3d 72, 82–83 (Cal. Ct. App. 2017)

6 (requiring favorable termination in professional negligence suit against attorney where success on

7 the merits would necessarily imply the invalidity of plaintiff’s confinement); Coscia v. McKenna

8 & Cuneo, 25 P.3d 670, 673–74 (Cal. 2001) (“[A]n individual convicted of a criminal offense

9 must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in

10 order to establish actual innocence in a criminal malpractice action. . . . [P]ublic policy

11 considerations require that only an innocent person wrongly convicted be deemed to have

12 suffered a legally compensable harm.”).

13 Had Plaintiff been permitted to raise this claim while her prior convictions stood, her suit

14 would have struck at the heart of the concerns for judicial integrity and finality discussed in both

15 Heck and Yount. Because of this, the Court finds that Heck and Yount would have barred

16 Plaintiff’s fourth and sixth causes of action until the time her conviction was reversed.

17 The California Supreme Court’s wholesale adoption of the rule announced in Heck,

18 however, does not necessarily imply its adoption of the reasoning in McDonough v. Smith

19 regarding the date of accrual for the statute of limitations. When interpreting state law, federal

20 courts must follow decisions of a state’s highest court. Paulson v. City of San Diego, 294 F.3d

21 1124, 1128. The California Supreme Court has spoken contrary to McDonough regarding the

22 issue of accrual in cases where plaintiffs must demonstrate a favorable termination of their

23 criminal charges.

24 In Coscia v. McKenna & Cuneo, 25 P.3d at 671–72, the plaintiff sued his criminal defense

25 attorneys, alleging that the firm provided negligent legal advice that resulted in the plaintiff taking

26 a plea deal. The court held that, to succeed on a legal malpractice claim stemming from a

27 criminal proceeding, a plaintiff must first demonstrate exoneration of the underlying conviction.

28 Id. at 672. The court then addressed the problem with this requirement: “Because of the time

1 required to complete postconviction proceedings, the statute of limitations in most cases will have

2 run long before the convicted individual has had an opportunity to remove the bar to establishing

3 his or her actual innocence.” Id. at 677. The Coscia court went on to summarize how other states

4 have dealt with this concern. On the one hand, some states, like the Supreme Court in

5 McDonough, set the accrual date in legal malpractice claims on the day a plaintiff receives a

6 favorable termination of the underlying criminal conviction. Id. at 678 (citing state supreme court

7 cases out of Virginia, Alaska, and Oregon). On the other hand, some states have adopted a “two-

8 track approach.” Id. In these states, the statute of limitations begins to run on the date the

9 plaintiff “knew she had a possible claim against her criminal defense counsel.” Id. (citing

10 Gebhardt v. O’Rourke, 444 N.W.2d 900, 906 (Mich. 1994). The California Supreme Court chose

11 to follow the latter approach, setting the statute of limitations in motion on the date the plaintiff

12 suffered or learned of his or her injury, rather than on the date of his or her exoneration. Id. at

13 483. In so holding, the court noted that it is a legal fiction to say that a plaintiff suffering from a

14 wrongful conviction does not experience actual injury until receiving postconviction relief. Id.

15 Additionally, the court noted that tying the date of accrual to the date of exoneration would

16 undermine the purpose of statutes of limitations: to “ ‘protect defendants from having to defend

17 stale claims by providing notice in time to prepare a fair defense on the merits.’” Id. (quoting

18 Downs v. Dept. of Water & Power, 68 Cal. Rptr. 2d 590, 593 (Cal. Ct. App. 1997)).

19 While Coscia dealt with accrual for claims involving legal malpractice, the breadth of its

20 reasoning encompasses the claims in this case. The Coscia court rejected the reasoning of state

21 court opinions analogous to McDonough. Additionally, the court’s concerns about protecting

22 defendants from stale claims and recognizing the fact of actual injury on the date of conviction is

23 as applicable in a case like the instant one as it would be in a legal malpractice case. Finally, the

24 Court notes that McDonough does not overrule Coscia. Rather, McDonough is a case interpreting

25 a rule of federal law previously announced in Heck. See Yount, 183 P.3d at 484 (“Heck, of

26 course, is a rule of federal law that applies only to federal causes of action that challenge the

27 validity of a state conviction.”). This Court, therefore, is bound by Coscia’s logic and holding.

28 ///

1 The California statute of limitations in negligence actions is two years. Cal. Code Civ. P.

2 § 335.1.7 The date of accrual for a negligence action in California is the “time when the cause of

3 action is complete with all of its elements.” Norgart v. Upjohn Co., 981 P.2d 79, 88 (Cal. 1999).

4 The elements of a negligence claim under California law are duty, breach, causation, and injury.

5 Vasilenko v. Grace Family Church, 404 P.3d 1196, 1198 (Cal. 2017). The statute of limitations

6 will not begin to run, however, while the plaintiff is unaware of the cause of action. See id.

7 Rather, the statute of limitations begins to run at the time the plaintiff knew or should have known

8 about the claim. Id.

9 Applying these rules to this case leads to a muddled result. As far as claims premised on

10 the content of Ms. Greene’s physical examinations and trial testimony, the Court finds that the

11 statute of limitations began to run at the time of Plaintiff’s 2002 conviction. At that point

12 Plaintiff would have suffered an injury – wrongful incarceration – and known that the injury was

13 attributable to Ms. Greene’s examination results and testimony. Pursuant to Coscia, Plaintiff

14 could have tolled the statute of limitations by filing a civil suit and asking the court to stay

15 proceedings until the resolution of any postconviction proceedings. Because she did not, the

16 statute of limitations has expired.

17 The statute of limitations issue differs, however, to the extent that Plaintiff’s state law

18 claims are premised on Ms. Greene’s failure to disclose exculpatory evidence. The SAC alleges

19 that Plaintiff first learned of the existence of video recordings of Ms. Greene’s examinations after

20 receiving a response to a subpoena during her habeas corpus proceedings. (ECF No. 39 at ¶ 41.)

21 Plaintiff filed her petition for writ of habeas corpus on October 23, 2017. (Id. at ¶ 45.) There is,

22 however, no information in the SAC or in the briefing from either party about when Plaintiff

23 learned of the videotapes. This fact is significant because it was not until Plaintiff learned of the

24 existence of the videotapes that her state law claims accrued. Plaintiff claims that withholding the

25 videotapes was a cause of her incarceration. Without knowledge of the fact of withholding,

26 Plaintiff could not have discovered the causation element of her negligence claim or the due

27 7 This two-year statute of limitations period applies both to Plaintiff’s negligence claim and to her claim under the

Tom Bane Act. See Gatto v. Cnty. of Sonoma, 120 Cal. Rptr. 2d 550, 561 (Cal. Ct. App. 2002) (applying then-

28 applicable negligence statute of limitation to Bane Act claims).

1 process basis of her Bane Act claim. Plaintiff’s state law claims would, therefore, be timely if she

2 discovered this fact after May 6, 2018. Because Plaintiff has not pleaded any facts to illuminate

3 this issue, the Court must, at this time, dismiss claims four and six, without prejudice.

4 Because the Court cannot anticipate whether Plaintiff will plead facts sufficient to

5 overcome the statute of limitations barrier, it will decline to address the arguments regarding

6 Plaintiff’s Bane Act claim at this time.

7 C. State law immunities do not protect Health Defendants.

8 Because the Court is granting Plaintiff leave to amend the SAC, it will address Health

9 Defendants’ arguments regarding state law immunities in order to avoid repetitive briefing. The

10 Court’s analysis of the availability of these immunities, unlike its analysis of the Bane Act claim,

11 does not hinge on any changes Plaintiff might make to the complaint.

12 At the outset, the Court notes that Health Defendants are unable to assert state law

13 immunities as defenses to Plaintiff’s section 1983 claims. Wallis v. Spencer, 202 F.3d 1126, 1144

14 (9th Cir. 2000). As described below, Health Defendants’ arguments that these immunities bar

15 Plaintiff’s state law claims are also unconvincing.

16 i. California Government Code section 8659 does not apply in this case.

17 Health Defendants claim they are immune to suit because they rendered services to sexual

18 assault victims during the existence of a “local emergency.” (ECF No. 19 at 17.) California

19 Government Code section 8659(a) states:

20 Any physician or surgeon . . ., hospital, pharmacist, respiratory care

practitioner, nurse, or dentist who renders services during any state

21 of war emergency, a state of emergency, or a local emergency at the

express or implied request of any responsible state or local official

22 or agency shall have no liability for any injury sustained by any

person by reason of those services, regardless of how or under what

23 circumstances or by what cause those injuries are sustained;

provided, however, that the immunity herein granted shall not apply

24 in the event of a willful act or omission.

25 A local emergency is “the duly proclaimed existence of conditions of disaster or of

26 extreme peril to the safety of persons and property.” Cal. Gov. Code § 8558(c)(1). Health

27 Defendants seemingly cite to Cal. Corr. Peace Officers Assn. v. Schwarzeneggar, 77 Cal. Rptr.

28 3d 844, 856 (Cal. Ct. App. 2008) for the proposition that an emergency can be proclaimed by

1 implication. (ECF No. 29 at 16.) This is incorrect. Rather, Schwarzaneggar states that the

2 issuance of a proclamation implies that the government has made the necessary factual findings to

3 justify the proclamation. Id. The plain text of the statute still requires an official proclamation.

4 See Cal. Gov. Code § 8558(c)(1). Health Defendants gesture toward Governor Newsom’s 2020

5 proclamation declaring April “Child Abuse Prevention Month.” Proclamation declaring April

6 2020 “Child Abuse Prevention Month” (Apr. 7, 2020), https://www.gov.ca.gov/wp-

7 content/uploads/2020/04/April-2020-Child-Abuse-Prevention-Month.pdf. (ECF No. 29 at 16.)

8 The proclamation makes no mention of a state of emergency; nor does it invoke the Governor’s

9 authority under California’s Government Code. The Governor issued the proclamation,

10 moreover, in 2020, eighteen years after Health Defendants examined the children in this case. As

11 the text of section 8659 states, any immunity would only apply “during any . . . local emergency.”

12 Cal. Gov. Code § 8659(a) (emphasis added). Health Defendants cannot claim immunity under

13 California Government Code section 8659.

14 ii. Though they may act “under color of law,” Health Defendants are not “public

15 entities.”

16 Whether Adventist Health is a public entity, and whether Ms. Greene is a public employee

17 by way of her relationship to Adventist Health, appears to be a source of confusion for both

18 parties. In her second amended complaint, Plaintiff asserts a claim against Adventist Health

19 under California Government Code section 815.2., which applies only to public entities. (ECF

20 No. 39 at § VII(E).) At the same time, Plaintiff argues that Health Defendants’ claims of

21 immunity under California Government Code sections 855.6, 818.2, 820.2, and 815.4 and Health

22 Defendants’ assertion of Plaintiff’s failure to comply with the presentation requirement of

23 California Civil Code section 910, are invalid because Adventist Health is not a public entity and

24 Ms. Greene is not a public employee. (ECF No. 26 at 29–32.) For their part, Health Defendants

25 consistently and erroneously assert that liability under section 1983 transforms them into “public

26 entities.” (See, e.g., ECF No. 29 at 16.) This is a false equivalence. In fact, it is an argument

27 similar to the one Health Defendants make to assert immunity under the Eleventh Amendment.

28 This argument fails here, as it did above.

1 Health Defendants burrow into California statutory definitions in their attempt to prove

2 their qualification as public entities under state law. The journey begins with a citation to

3 California Government Code section 811.2, (ECF No. 19 at 26), which defines a “public entity”

4 as “the state, the Regents of the University of California, the Trustees of the California State

5 University and the California State University, a county, city, district, public authority, public

6 agency, and any other political subdivision or public corporation in the State.” California

7 Government Code section 6252(d), in turn, defines a “public agency” as “any state or local

8 agency.” Finally, we arrive at California Government Code section 8557(a), which defines a

9 “state agency” as “any department, division, independent establishment, or agency of the

10 executive branch of the state government.” Here, Health Defendants conclude that Adventist

11 Health is an “independent establishment” and, therefore, a state agency, making Ms. Greene a

12 public employee. (ECF No. 29 at 16.) Health Defendants support their conclusion without

13 citation to case law. The work remains for this Court, therefore, to determine whether the term

14 “independent establishment” in section 8557(a) has such a broad definition that it can encompass

15 private actors like Health Defendants.

16 When interpreting state law, federal courts must follow decisions of a state’s highest

17 court. Paulson, 294 F.3d at 1128. “When the state supreme court has not spoken on an issue, we

18 must determine what result the court would reach based on state appellate court opinions, statutes

19 and treatises.” Id. (quoting Hewitt v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991). The term

20 “independent establishment” appears exactly once in California statutory law. No California

21 courts have defined the term. Nevertheless, in applying common tools of statutory construction

22 and looking to other jurisdictions, this Court concludes that Health Defendants do not qualify as

23 “independent establishments” under California law.

24 When defining a statutory term, courts must not only look to the dictionary, but must also

25 consider the broader context of the statute. See Yates v. U.S., 574 U.S. 528, 537 (2015). To assist

26 with this process, courts sometimes use the “principle of noscitur a sociis – a word is known by

27 the company it keeps – to ‘avoid ascribing to one word a meaning so broad that it is inconsistent

28 with its accompany words . . ..” Id. at 543 (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575

1 (1995)); see also Maner v. Dignity Health, 9 F.4th 1114, 1123 (9th Cir. 2021). The terms

2 surrounding “independent establishment” in section 8557(a) cabin the definition to entities

3 created by statute under the auspices of the state’s executive branch. Courts that have defined the

4 term “independent establishment” in other contexts have come to a similar conclusion. See

5 S.E.C. v. Syon, 934 F. Supp. 2d 609, 622–25 (S.D.N.Y. 2013) (holding that a federally chartered

6 corporation is not an “independent establishment” for purposes of the Federal Exchange Act

7 because “with few exceptions, the only entities deemed to be ‘independent establishments’ are

8 those Congress has explicitly designated as such”) (citing S.E.C. v. Mudd, 885 F. Supp. 2d 654,

9 664 (S.D.N.Y. 2012)).

10 In an analogous situation, the Seventh Circuit created a four-factor test to determine when

11 an entity qualifies as a “federal agency” under the Federal Tort Claims Act.8 Mendrala v. Crown

12 Mortg. Co., 955 F.2d 1132, 1136 (7th Cir. 1992). Those four factors are: “(1) the federal

13 government’s ownership interest in the entity; (2) federal government control over the entity’s

14 activities; (3) the entity’s structure; (4) government involvement in the entity’s finances; and (5)

15 the entity’s function or mission.” Id. Adopting this test here proves useful. Regarding factors

16 one, two, and four, neither party alleges that the government has an ownership interest in

17 Adventist Health, exercises control over Adventist Health’s activities, or is involved in any way

18 with Adventist Health’s finances. While Plaintiff alleges collusion between Health Defendants

19 and Kings County, there is no allegation that the county operates the hospital as an arm of the

20 state or subjects it to fiscal oversight. In terms of the third factor, the SAC and the briefing of

21 both parties allege that Adventist Heath is structured as a private entity. The fifth factor is the

22 only one that could weigh in favor of finding Adventist Health to be a public entity. To some

23 degree, Plaintiffs are alleging that it is the function of the SART to provide forensic investigatory

24 services to the government. SART, however, is only one division within a broader private health

25 apparatus. To claim that an entire hospital qualifies as a public entity because one small part of it

26

8 The FTCA defines a “federal agency” as “the executive departments, the judicial and legislative branches, the

27

military departments, independent establishments of the United States, and corporations primarily acting as

instrumentalities or agencies of the United States, but does not include any contractor with the United States.” 28

28 U.S.C. § 2671.

1 collaborates with law enforcement would defy logic. Beyond that, however, Health Defendants

2 claim that SART also provides non-forensic services to individuals who have suffered sexual

3 abuse. The function or mission of SART, therefore, seems to be broader than providing criminal

4 investigatory services, even though it may have acted under color of law for the purposes of this

5 particular case.

6 Health Defendants are not public entities under California law. Therefore, none of the

7 state law defenses under California Government Code sections 855.6, 818.2, 820.2, 815.2, and

8 Civil Code section 910 apply to the claims against them. By the same token, the Court must

9 dismiss Plaintiff’s fifth claim as it applies to Adventist Health, with prejudice.

10 D. The Court grants Plaintiff leave to amend the SAC.

11 Generally, “[c]ourts are free to grant a party leave to amend whenever ‘justice so

12 requires,’ and requests for leave should be granted with ‘extreme liberality.’” Moss v. U.S. Secret

13 Serv., 572 F.3d 962, 972 (9th Cir. 2009). There are several factors a district court considers when

14 deciding whether to grant leave to amend, including undue delay, the movant’s bad faith or

15 dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue

16 prejudice to the opposing party, and futility. Brown v. Stored Value Cards, Inc., 953 F.3d 567,

17 574 (9th Cir. 2020) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Of the Foman factors, the

18 court should particularly consider prejudice to the opposing party. Id.; Eminence Cap., LLC v.

19 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

20 Applying the second and fifth Foman factors to this case, the Court finds that Plaintiff has

21 not acted in bad faith and that it would not be futile to grant another opportunity to cure

22 deficiencies in the complaint. Regarding the third factor, the Court notes that, while Plaintiff has

23 already filed two amended complaints, it appears those amendments have come from

24 conversations with County Defendants. The Court has no information about whether Plaintiff

25 and Health Defendants have met and conferred regarding the allegations in the complaint or the

26 substance of their motions. To streamline this process, the Court will direct the parties to meet

27 and confer prior to filing any motions, pursuant to the Court’s Standing Order in Civil Actions.

28 E.D. Cal. S.O. J. de Alba at 2. Additionally, the parties must include in their motions “a

1 | declaration that the parties exhausted meet and confer efforts, with a very brief summary of said

2 | efforts.” 7d. Finally, considering the first and fourth factors, the Court recognizes that this matter

3 | was filed over two years ago, and that Health Defendants filed their amended motion to dismiss

4 | on August 4, 2020. The substantial delay in this case has likely prejudiced both parties, but that

5 | delay is attributable to the Court alone. The Court cannot permit its overcrowded docket to result

6 | in the dismissal, with prejudice, of potentially meritorious claims. Plaintiff will, therefore, be

7 | granted leave to amend the complaint to address the deficiencies noted in this order.

8 Accordingly,

9 1. Health Defendants’ motion to dismiss Claim 1 against Ms. Greene is DENIED;

10 2. Claims 4 and 6 against Ms. Greene are DISMISSED, without prejudice;

11 3. Claims 2, 4, and 6 against Adventist Health are DISMISSED, without prejudice;

12 4. Claims 1, 3, and 5 against Adventist Health are DISMISSED, with prejudice;

13 5. Plaintiff is granted leave to amend the SAC within twenty-one (21) days of service

14 of this order.

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17 | TIS SO ORDERED.

18 Dated: _ October 18, 2022

19 UNITED f£TATES DISTRICT JUDGE

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