“Where dismissal is appropriate, a court should grant 2 || leave to amend unless the plaintiff could not possibly cure the defects in the pleading.”
How later courts described this case
- “Where dismissal is appropriate, a court should grant 2 || leave to amend unless the plaintiff could not possibly cure the defects in the pleading.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 LINDA SANCHEZ, Case No.: 18-cv-1550-AJB-AGS
11 Plaintiff, ORDER:
12 v.
(1) GRANTING DEFENDANT’S
13 UNITED STATES OF AMERICA, and MOTION TO DISMISS, (Doc. No. 13)
DOES 1 through 50,
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Defendants. (2) GRANTING PLAINTIFF’S
15 MOTION FOR LEAVE TO AMEND
COMPLAINT, (Doc. No. 19)
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17 Defendant United States of America (“United States”) moves to dismiss with
18 prejudice Plaintiff Linda Sanchez’s (“Sanchez”) complaint pursuant to Federal Rules of
19 Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (See Doc. No. 13.) Sanchez
20 filed an opposition to the United States’ motion to dismiss. (See Doc. No. 15.) In addition,
21 Sanchez requested leave to amend the complaint, or in the alternative, Sanchez asked for
22 continuance of the motion and leave to conduct discovery into SYHC’s rules, policies, and
23 procedures. (Doc. Nos. 15, 19.) The United States filed an opposition in part to Sanchez’s
24 motion for leave to amend the complaint. (See Doc. Nos. 16, 20.) Pursuant to Civil Local
25 Rule 7.d.1, the Court finds the matter suitable for determination on the papers and without
26 oral argument. For the reasons discussed herein, the Court GRANTS the United States’
27 motion to dismiss, and GRANTS Sanchez’s motion for leave to amend her complaint.
28 //
1 I. BACKGROUND
2 Sanchez brings this complaint under the Federal Torts Claim Act (“FTCA”).
3 (Complaint (“Compl.”), Doc. No. 1 ¶ 1.) Sanchez alleges her psychiatrist, Leon Fajerman,
4 “committed acts of sexual harassment and contact against” Sanchez for three months—
5 from “May 2017 to mid-July 2017.” (Id. ¶ 3.) The alleged events took place at San Ysidro
6 Health Center (“SYHC”), a federally qualified health center, where Sanchez claims Dr.
7 Fajerman has a “history and practice of committing sexual acts against his patients.” (Id.
8 ¶ 4.) Sanchez details several incidents in which Dr. Fajerman acted inappropriately,
9 including groping her, showing up at her home, and pushing her onto his couch while
10 groping her, kissing her, and pressing his genitalia against her. (Id. ¶¶ 19–31.) Sanchez
11 states, unbeknownst to her, Dr. Fajerman was being investigated for similar conduct by the
12 Medical Board, resulting in his license being suspended. (Id. ¶¶ 34–36.) As a result,
13 Sanchez’s future appointments with Dr. Fajerman were cancelled and a nurse practitioner
14 “cut” her medication “by two-thirds without any taper” causing her to go into “withdraws.”
15 (Id. ¶ 36.) Finally, Sanchez claims SYHC dropped her from care several times without
16 explanation which caused delays in her medical treatment. (Id. ¶ 37.)
17 II. PROCEDURAL HISTORY
18 On July 6, 2018, Sanchez filed her complaint against the United States, alleging
19 claims for negligent hiring and supervision under the Federal Torts Claims Act. (Compl.
20 ¶¶ 40–53.) On August 21, 2019, the United States filed a motion to dismiss for lack of
21 subject matter jurisdiction pursuant to the discretionary function exception. (Doc. No. 13.)
22 Sanchez opposed the motion, and the United States replied. (Doc. Nos. 15–16.) Then on
23 January 30, 2020, Sanchez filed a motion for leave to amend the complaint. (Doc. No. 19.)
24 The United States opposed in part, and Sanchez replied. (Doc. Nos. 20, 23–24.) This order
25 follows.
26 //
27 //
28 //
1 III. LEGAL STANDARD
2 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
3 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.
4 Co., 511 U.S. 375, 377 (1994). Accordingly, “[a] federal court is presumed to lack
5 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc. v.
6 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). The party asserting subject
7 matter jurisdiction has the burden of persuasion for establishing it. Hertz Corp. v. Friend,
8 559 U.S. 77, 96 (2010). Pursuant to Rule 12(b)(1), a party may seek dismissal of an action
9 for lack of subject matter jurisdiction “either on the face of the pleadings or by presenting
10 extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.
11 2003). Where the party asserts a facial challenge, the court limits its inquiry to the
12 allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
13 (9th Cir. 2004). The Court assumes plaintiff’s “[factual] allegations to be true and draw[s]
14 all reasonable inferences in [her] favor.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
15 2004). Where the party asserts a factual challenge, the Court may consider extrinsic
16 evidence demonstrating or refuting the existence of jurisdiction without converting the
17 motion to dismiss into a motion for summary judgment. Id. The United States argues
18 Sanchez’s complaint fails to state a claim that is facially outside of the discretionary
19 function exception to the FTCA. (Doc. No. 13 at 2.) Thus, the Court considers the
20 allegations in the complaint and draws all reasonable inferences in favor of Sanchez.
21 B. Motion for Leave to Amend the Complaint
22 Rule 15(a) governs leave to amend prior to trial. A party may amend its pleading
23 once as a matter of course within 21 days after serving it; or, if the pleading is one requiring
24 a response, within 21 days after service of the responsive pleading or motion. Fed. R. Civ.
25 P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing
26 party’s written consent or the court’s leave. The court should freely give leave when justice
27 so requires.” Fed. R. Civ. P. 15(a)(2).
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1 The grant or denial of leave to amend is in the Court’s discretion. Swanson v. U.S.
2 Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). “In exercising this discretion, a court must
3 be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather
4 than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir.
5 1981). Consequently, the policy in favor of granting leave to amend is applied with extreme
6 liberality. See Foman v. Davis, 371 U.S. 178, 181–82 (1962).
7 IV. DISCUSSION
8 While the United States’ motion to dismiss was fully briefed and pending, Sanchez
9 filed a motion for leave to amend the complaint. (Doc. No. 19.) The United States opposed,
10 in part, Sanchez’s motion for leave to amend, arguing that although it did not necessarily
11 oppose Sanchez’s amendments, it opposed allowing the amendments to render moot its
12 previously filed motion to dismiss. (Doc. No. 20.) After review of the parties’ arguments,
13 and with consideration for judicial economy, the Court agrees with the United States and
14 finds it appropriate to address the United States’ pending motion to dismiss. Thus, the
15 Court will first begin with the United States’ motion to dismiss, and will then turn to
16 Sanchez’s motion for leave to amend.
17 A. The United States’ Motion to Dismiss for Lack of Subject Matter Jurisdiction
18 1. Discretionary Function Exception
19 Where suit is brought against the United States, federal courts have no jurisdiction
20 absent the United States’ consent to be sued. See United States v. Mitchell, 445 U.S. 535,
21 538 (1980). Certain federal statutes provide limited exceptions to this general rule. For
22 example, the FTCA grants the federal district courts exclusive jurisdiction over civil
23 actions against the United States for damages “caused by the negligent or wrongful act or
24 omission of any employee of the Government while acting within the scope of his office
25 or employment. . . .” 28 U.S.C. § 1346(b)(1).
26 However, FTCA’s broad waiver of sovereign immunity is limited by discretionary
27 function exception. This exception precludes claims against the United States which are
28 “based upon the exercise or performance or the failure to exercise or perform a
1 discretionary function or duty on the part of a federal agency or an employee of the
2 Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). In
3 order to determine whether the discretionary function exception applies, a court must
4 engage in a two-step inquiry: (1) the court must determine whether the challenged conduct
5 involves an element of judgment or choice, see Berkovitz v. United States, 486 U.S. 531,
6 536 (1988); and (2) if the conduct involves some element of choice, the court must
7 determine whether the conduct implements social, economic, or political policy
8 considerations, see Gasho v. United States, 39 F.3d 1420, 1435 (9th Cir. 1994). Plaintiffs
9 are required to advance a claim that is facially outside the discretionary function exception
10 in order to defeat a motion to dismiss. Prescott v. United States, 973 F.2d 696, 702 (9th
11 Cir. 1992).
12 In the instant motion, the United States argues the first step of the test is satisfied
13 because Sanchez fails to identify a federal statute, regulation, or policy that required
14 specific course of action by SYHC to respond to allegations against Dr. Fajerman. (Doc.
15 No. 13 at 7.) Furthermore, the United States contends, the second step is satisfied because
16 the SYHC’s hiring, supervision, and retention of Dr. Fajerman involved an element of
17 choice based on social, economic, or political policy considerations. (Id. at 8.) Therefore,
18 the United States asserts the “discretionary function” exception bars Sanchez’s lawsuit.
19 In her Opposition, Sanchez does not dispute the first prong and concedes the
20 discretionary function exception generally applies to employment decisions.1 (Doc. No. 15
21 at 8.) But Sanchez disputes the second prong, arguing the “discretionary function”
22 exception should not apply “where Government fails to act after receiving notice of illegal
23 behavior.” (Id. at 5.) The crux of Sanchez’s argument is that “no policy could possibly
24 support [United States’] failure to respond to notice of illegal conduct.” Id. In her
25 complaint, Sanchez alleges “SYHC continu[ed] to schedule appointments for Dr. Fajerman
26 to see [Sanchez] despite knowing or having reason to know that he posed a danger to his
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1 However, in her motion for leave to amend, Sanchez states she now has sufficient facts to mount an
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1 clients.” (Compl. ¶ 48.) Thus, Sanchez contends the discretionary function exception is
2 inapplicable because there is no plausible policy consideration that could support the
3 United States’ failure to act.
4 With regard to the second prong of the discretionary function exception analysis,
5 generally, the decisions relating to the hiring, supervision, and retention of employees
6 involve policy judgments of the type Congress intended the discretionary function
7 exception to shield. See Nurse v. United States, 226 F.3d 996, 1001 (9th Cir.2000) (holding
8 negligent employment, supervision and training claims “fall squarely within the
9 discretionary function exception”); see also Gourgue v. United States, No. 12CV-1490-
10 LAB, 2013 WL 1797099, at *2 (S.D. Cal. Apr. 29, 2013) (“[T]he Government’s decision
11 of how to train and supervise its employees is the kind of decision that
12 the discretionary function was designed to protect because it is susceptible to a policy
13 analysis.”). The challenged action “need not be actually grounded in policy
14 considerations,” it simply needs to be, “by its nature, susceptible to a policy analysis.”
15 Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998).
16 Sanchez argues this Court should follow the reasoning in Tonelli v. United States,
17 60 F.3d 492 (8th Cir. 1995). There, the court recognized that issues of employee
18 supervision and retention generally involve the permissible exercise of policy judgment
19 and fall within the discretionary function exception. Id. 496. However, the court held that
20 where the United States is put on notice of illegal conduct, the choice no longer involves
21 plausible policy considerations. Id. However, this Court is not bound by the Eight Circuit
22 decision when the Ninth Circuit has applied the discretionary function exception in similar
23 circumstances, and reached a contrary conclusion. In addition, the facts in Tonelli are
24 distinguishable from the facts present in this case. Here, Sanchez merely alleges “SYHC
25 knew or should have known about Dr. Fajerman’s history and practice of sexual contact
26 (or attempted sexual contact) with patients.” (Compl. ¶ 36.) In contrast, the plaintiffs in
27 Tonelli alleged the United States had actual and detailed notice of an employee’s ongoing
28 illegal conduct and failed to act to the plaintiffs’ own complaint. Tonelli, 60 F.3d at 494–
1 95. As currently pled, there is neither an indication that the United States failed to act in
2 response to Sanchez’s complaints nor are there facts pled as to the specifics of the notice
3 the United States allegedly had.
4 This case is more analogous to Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009).
5 There, the plaintiff claimed the Church negligently supervised and retained a priest whom
6 it knew or should have known that “had a history of sexually abusing children.” Id. at 1083.
7 The court held the plaintiff’s causes of action for negligent hiring and supervision, and
8 failure to warn are barred by the discretionary function exception. Id. at 1085. The court
9 reasoned that some of the policy considerations affecting the Church’s decision could have
10 been the harm to its reputation, the effect of pastoral stability on parishioners’ well-being,
11 and staffing shortages. Id. Thus, the court concluded the Church’s decision was susceptible
12 to policy considerations. Id.
13 Similarly, here, Sanchez alleges “SYHC knew or should have known about Dr.
14 Fajerman’s history and practice of sexual contact (or attempted sexual contact) with
15 patients,” and “he should not have been hired or retained.” (Compl. ¶¶ 47, 50.) In
16 Opposition, Sanchez asserts Holy See is not applicable here because it involved decision
17 regarding notice of prior illegal conduct while in Tonelli, the United States had a notice of
18 ongoing illegal conduct. (Doc. No. 15 at 9.) However, for the purposes of the second prong
19 of the two-step test, the decision need not actually be based on policy considerations.
20 Rather, this prong is met when the decision is simply susceptible to policy considerations.
21 Assuming, arguendo, SYHC had notice of ongoing illegal conduct, the decision regarding
22 the retention and supervision of Dr. Fajerman is still susceptible to policy considerations.
23 In the case of Dr. Fajerman, SYHC might have decided to retain him to avoid
24 unnecessarily alarming other patients while investigation was ongoing, or SYHC might
25 have tried to balance insuring public safety and providing fairness to the accused.
26 Furthermore, the complaint alleged that “after Dr. Fajerman’s medical license was
27 suspended by the Medical Board, SYHC cancelled Sanchez’s outstanding appointments.”
28 (Compl. ¶ 36.) At this point, the retention of Dr. Fajerman no longer involved any policy
1 considerations. In contrast, SYHC’s decision to retain and supervise an employee while
2 the employee’s license was being reviewed for suspension included policy considerations
3 such as fairness to the accused and public safety. These types of social, economic, or
4 political policy considerations could have influenced SYHC’s decision to hire, supervise
5 or retain Dr. Fajerman. This is the kind of judgment the discretionary function exception
6 was designed to shield. Therefore, the second prong of the two-step inquiry is met, and
7 Sanchez’s complaint as pled is barred by the discretionary function exception. As such, the
8 United States’ motion to dismiss is GRANTED.
9 B. Sanchez’s Motion for Leave to Amend
10 Having addressed the United States’ motion, the Court now turns to Sanchez’s
11 motion for leave to amend. Sanchez requests leave to add new facts reflecting:
12 • Recently discovered information indicating SYHC employees had actual notice of
13 acts of sexual misconduct by Dr. Fajerman prior to the allegations of misconduct
14 that form the basis of Sanchez’s negligent hiring, supervision, and retention claim;
15 • Recently obtained SYHC policy and procedure regarding provider sexual
16 misconduct, which Sanchez argues is relevant to the first prong of the discretionary
17 exception doctrine analysis; and
18 • Recently discovered information and intervening California case law supporting a
19 direct negligence claim, which is a separate claim from Sanchez’s claim for
20 negligent supervision and retention.
21 (Doc. No. 19 at 5.)
22 In sum, based on these proposed facts, Sanchez requests leave to add: (1) new facts
23 in support of Sanchez’s negligent supervision and retention claim, (2) a direct negligence
24 claim against the United States for failure to protect against foreseeable sexual abuse, and
25 (3) a direct negligence claim against the United States for failure to protect against
26 foreseeable criminal conduct. (Id. at 5–6.) After review of the proposed amendments, and
27 finding no undue delay, bad faith, or dilatory motive, the Court finds it appropriate to
28 GRANT Sanchez leave to amend her complaint. See Knappenberger v. City of Phoenix,
1 || 566 F.3d 936, 942 (9th Cir. 2009) (“Where dismissal is appropriate, a court should grant
2 || leave to amend unless the plaintiff could not possibly cure the defects in the pleading.”).
3 Vv. CONCLUSION
4 For the reasons stated above, the Court GRANTS the United States’ motion to
5 ||dismiss Sanchez’s complaint. (Doc. No. 13.) Moreover, the Court also GRANTS
6 || Sanchez’s motion for leave to amend. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
7 || 1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and without leave to amend is not
8 || appropriate unless it is clear . . . that the complaint could not be saved by amendment.”).
9 || Sanchez will have twenty-one (21) days from the date of this Order to file her amended
10 ||complaint addressing the deficiencies noted herein. Failure to file an amended complaint
11 |} will result in dismissal of this case.
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13 || IT ISSO ORDERED.
14 || Dated: March 10, 2020 | □□ 2 : Le
15 Hon. Anthony Battaglia
16 United States District Judge
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