1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 SHANNON SOWASH, Individually and Case No. 25-cv-09630-MMC as Successor In Interest to Anthony 8 Harding, ORDER GRANTING COUNTY OF SAN MATEO'S MOTION TO DISMISS; 9 Plaintiff, GRANTING IN PART AND DENYING IN PART VITUITY DEFENDANTS' 10 v. MOTION TO DISMISS; AFFORDING

PLAINTIFF LEAVE TO AMEND;

11 COUNTY OF SAN MATEO, et al., CONTINUING CASE MANAGEMENT

CONFERENCE

12 Defendants.

13 Before the Court are two motions: (1) County of San Mateo's ("County") "Motion 14 to Dismiss Pursuant to 12(b)(6) and (f)," filed November 14, 2025; and (2) CEP America 15 California, dba Vituity ("Vituity"), and Julie Hersk, M.D.'s ("Dr. Hersk") (collectively, "Vituity 16 Defendants") "Motion to Dismiss Plaintiff's First Amended Complaint for Failure to State a 17 Claim Upon Which Relief Can Be Granted [FRCP 12(b)(6)]; Motion to Strike [FRCP 18 12(7)]" (brackets in original), filed November 14, 2025. Plaintiff Shannon Sowash 19 ("Sowash") has filed opposition to each motion. The County has filed a reply, as have 20 the Vituity Defendants. Having read and considered the papers filed in support of and in 21 opposition to the motions, the Court rules as follows.1 22 In her First Amended Complaint ("FAC"), Sowash asserts five Causes of Action, 23 each of which arises from the loss of her son, Anthony Harding ("Harding"), a "heavy user 24 of fentanyl" (see FAC ¶ 11), who died as a result of fentanyl withdrawal in January 2024, 25 three days after he had been arrested and placed in the custody of the County in its 26 Maguire Correctional Facility (hereinafter, "the Jail") (see FAC ¶¶ 1, 10, 27, 29). As 27 1 clarified in her opposition to the County's motion, Sowash brings the First through Fourth 2 Causes of Action in her capacity as the successor-in-interest to Harding, and brings the 3 Fifth Cause of Action on her own behalf, i.e., a wrongful death claim. The Court next 4 considers the arguments made by the moving defendants.2 5 A. County's Motion to Dismiss 6 1. First Cause of Action 7 The First Cause of Action, titled "Violation of 42 U.S.C. Code § 1983 – Fourteenth 8 Amendment – Deliberate Indifference to Serious Medical Needs of Plaintiff and Failure to 9 Protect Him From Harm," is subject to dismissal as against the County, in light of 10 Sowash's concession in her opposition that "the [First Cause of Action] cannot be 11 maintained against the County." (See Pl.'s Opp. to County's Mot. at 14:21-22.)3 12 2. Second Cause of Action 13 The Second Cause of Action, titled "Violation of 42 U.S.C. Code § 1983 – 14 Fourteenth Amendment – Inadequate Policies, Customs, and/or Practices Resulting in 15 Deprivation of Medical Care to Mr. Harding and Failure to Protect Him From Harm," is, as 16 discussed below, subject to dismissal as against the County. 17 "A government entity may not be held liable under 42 U.S.C. § 1983, unless a 18 policy, practice, or custom of the entity can be shown to be a moving force behind a 19 violation of constitutional rights," Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 20 2011), in other words, that "the action that is alleged to be unconstitutional implements or 21 2 Eight of the eleven defendants named in the FAC have not appeared, and, 22 apparently, have not been served. 23 3 Liability under a § 1983 claim brought against an entity cannot be based on a theory of respondeat superior. See Monell v. Department of Social Services, 436 U.S. 24 658, 693-94 (1978). Consequently, the Court does not address herein the County's arguments that, to the extent the First Cause of Action as well as the other Causes of 25 Action brought pursuant to § 1983 are asserted against its employees, those claims are subject to dismissal as well. See United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 26 1997) (holding "[a] party must assert his own legal rights and interests") (internal quotation and citation omitted); In re Grand Jury Subpoenas Dated December 10, 1987, 27 926 F.2d 847, 852 (9th Cir. 1991) (finding movant "lack[ed] standing to challenge" 1 executes a [municipal] policy," see Monell, 436 U.S. at 690. With respect to four of the 2 six asserted County policies identified in the FAC, however, Sowash alleges that an 3 individual employee of the County and/or of Vituity4 failed to comply with the County 4 policy. (See FAC ¶ 29 (alleging individual defendants failed to comply with County policy 5 requiring employees "to respond promptly to medical symptoms presented by 6 [detainees]"), ¶ 31 (alleging individual defendants failed to comply with County policy 7 requiring employees to "alert the Watch Commander that [a detainee] [is] experiencing 8 withdrawal symptoms"), ¶ 32 (alleging individual defendants failed to comply with County 9 policy requiring employees to "evaluate [the detainee] using approved protocols in order 10 to determine the most appropriate care plan, based on [the detainee's] history, current 11 physical status, and treatment needs"); see also FAC ¶ 21 (alleging individual defendants 12 failed to comply with County policy requiring "inmates at risk for withdrawal problems to 13 be observed and charted every eight hours by medical staff").)5 14 The remaining two alleged policies are, in essence, alleged failures to adopt a 15 policy, namely, the County's alleged failure to "develop written medical protocols on 16 detoxification symptoms necessitating immediate transfer of an inmate to a hospital or 17 other medical facility" (see FAC ¶ 30) and failure "to develop and utilize withdrawal and 18 detoxification protocols that are in accordance with state and federal laws and fall within 19 nationally accepted guidelines" (see FAC ¶ 33).6 Where a plaintiff seeks to assert a 20 4 The medical personnel who interacted with Harding in January 2024 are alleged 21 to be employees of Vituity. (See FAC ¶ 6.) Vituity is alleged to have a contract with the County to "provide mental health, medical, and psychiatric services for inmates at the 22 jail." (See FAC ¶ 5.) 23 5 In ¶ 45 of the FAC, Sowash alleges "[t]he County's policies and procedures manual calls for COWS [clinical opiate withdrawal scale] assessments to be conducted 24 twice daily on detoxing inmates" (see FAC ¶ 45), an allegation that contradicts her allegation in ¶ 21 that the County requires such assessments every 8 hours. In her 25 opposition to the County's motion, Sowash clarifies that she is alleging "the County's policies and procedures . . . required COWS assessments every 8 hours." (See Pl.'s 26 Opp. to County's Mot. at 17:4.5-6.5.) 27 6 In addition to the deficiency discussed hereafter in this section, the latter of the 1 municipal liability claim based on a failure to adopt a policy, the "plaintiff must 2 demonstrate that the official policy [of inaction] evidences a deliberate indifference to his 3 constitutional rights," which "occurs when the need for more or different action is so 4 obvious, and the inadequacy of the current procedure so likely to result in the violation of 5 constitutional rights, that the policymakers can reasonably be said to have been 6 deliberately indifferent to the need." See Oviatt v. Pearce, 954 F.2d 1470, 1477-78 (9th 7 Cir. 1992) (internal quotation, citation, and alteration omitted). Here, however, the 8 County, as noted above, has at least two policies specific to persons at risk for 9 withdrawal symptoms (see FAC ¶¶ 21, 31), and Sowash fails to allege any facts to 10 support a finding that the County was aware that those existing policies were inadequate, 11 let alone that a County employee who followed those policies would likely deprive a 12 detainee of his or her constitutional rights. 13 3. Third Cause of Action 14 The Third Cause of Action, titled "Violation of 42 U.S.C. Code § 1983 - Fourteenth 15 Amendment – Failure to Train/Supervise Resulting in Deprivation of Medical Care to 16 Plaintiff and Failure to Protect Plaintiff From Harm," is, as discussed below, subject to 17 dismissal as against the County. 18 "In limited circumstances, a local government's decision not to train certain 19 employees about their legal duty to avoid violating citizens' rights may rise to the level of 20 an official government policy for purposes of § 1983." Connick v. Thompson, 563 U.S. 21 51, 61 (2011). Where, as here, a plaintiff seeks to base a § 1983 claim on a decision not 22

23 agrees, that a plaintiff fails to plead sufficient factual content to state a claim against a defendant where a complaint describes the conduct of two or more defendants 24 collectively and includes no factual allegations identifying the conduct in which each defendant engaged. See, e.g., Sanchez v. Green Messengers, Inc., 2021 WL 5012150, 25 at *2 (N.D. Cal. October 28, 2021) (holding Rule 8 of Federal Rules of Civilo Procedure "requires a plaintiff to differentiate allegations against multiple defendants"; dismissing 26 complaint as "deficient because it fail[ed] to differentiate between the two [named] Defendants"); Eunice v. United States, 2013 WL 756168, at *3 (S.D. Cal. February 26, 27 2013) (holding "[l]umping all 'defendants' together" fails to "put a particular defendant on 1 to train, the plaintiff must show "[the] municipality's failure to train its employees in a 2 relevant respect . . . amount[s] to deliberate indifference to the rights of persons with 3 whom the untrained employees come into contact," which, in turn, requires a showing 4 that the municipality "disregarded a known or obvious consequence of [its] action." See 5 id. (internal quotations, citations, and alterations omitted). 6 Here, Sowash alleges the County "had inadequate training/supervision, or no 7 training/supervision at all, at the Jail, to assure that employees/agents provided proper 8 medical care to prisoners" and, additionally, that the County was "aware, or should have 9 been aware, that employees/agents were not adequately trained/supervised to: 10 (1) provide timely access to and delivery of medical care to prisoners when needed and 11 requested; and (2) transport sick individuals to approved facilities for treatment and 12 assessment when necessary." (See FAC ¶¶ 52-53.) Sowash fails, however, to allege 13 that, prior to Harding’s death, any deprivations similar to those she asserts here had 14 occurred; "[w]ithout notice that a course of training is deficient in a particular respect, 15 decisionmakers can hardly be said to have deliberately chosen a training program that 16 will cause violations of constitutional rights." See Connick, 563 U.S. at 62; see also id. at 17 61 (observing "[a] municipality's culpability for a deprivation of rights is at its most 18 tenuous where a claim turns on a failure to train"). 19 4. Fourth Cause of Action 20 The Fourth Cause of Action, titled "Violation of California Government Code 21 § 845.6," a section contained in the Government Claims Act, provides for a claim against 22 a public entity and its employee “if the employee knows or has reason to know that the 23 prisoner is in need of immediate medical care and he fails to take reasonable action to 24 summon such medical care." See Cal. Gov't Code § 845.6.7 As set forth below, 25 7 A person, such as Harding, who is detained in a jail is a "prisoner" for purposes 26 of the Government Claims Act. See Cal. Gov't Code § 844 (providing "a lawfully arrested person who is brought into a law enforcement facility for the purpose of being 27 booked . . . becomes a prisoner, as a matter of law, upon his or her initial entry into a 1 Sowash’s claim thereunder is subject to dismissal as alleged against the County and the 2 three employees of the County identified in the FAC. 3 a. Compliance With Government Claims Act 4 Subject to exceptions not relevant to the § 845.6 claim Sowash asserts in her 5 capacity as the successor-in-interest to Harding, see Cal. Gov. Code § 905, the 6 Government Claims Act provides that a plaintiff must submit a claim for damages to a 7 public entity prior to a court action asserting state law claims against the entity, see Cal. 8 Gov. Code § 945.4. "[A] failure to allege facts demonstrating or excusing compliance 9 with the claim presentation requirements subjects a claim against a public entity to a 10 demurrer for failure to state a cause of action." State of California v. Superior Court, 32 11 Cal. 4th 1234, 1239 (2004). As the FAC does not include an allegation that Sowash 12 presented Harding's survival claims to the County, the Fourth Cause of Action is subject 13 to dismissal as against the County. Further, as said argument applies equally to the 14 three defendants who are alleged to be public employees, see Cal. Gov. Code § 950.2 15 (providing claim must be submitted to public entity prior to filing suit against "public 16 employee"), the Fifth Cause of Action likewise is subject to dismissal as against Christina 17 Corpus ("Corpus"), Wahed Rahimi ("Rahimi"), and Rick Galarza ("Galarza"), see 18 Silverton v. Department of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (holding district 19 court may "dismiss an action as to defendants who have not moved to dismiss where 20 such defendants are in a position similar to that of moving defendants or where claims 21 against such defendants are integrally related"). 22 Although the County acknowledges that a "Claim Against the County of San 23 Mateo" was, in fact, submitted to the County by Sowash on July 11, 2024 (see County's 24 Req. for Judicial Notice Ex. 1),8 it argues, in essence, that affording Sowash leave to 25

26 8 The County's unopposed motion for judicial notice of the above-referenced claim form is hereby GRANTED. See Varo v. Los Angeles County Dist. Attorney's Office, 473 27 F. Supp. 3d 1066, 1070-71 (C.D. Cal. 2019) (taking judicial notice of contents of 1 amend to allege compliance with the claim presentation requirement would be futile due 2 to asserted deficiencies in the claim Sowash submitted. As set forth below, the Court 3 disagrees. 4 First, the County argues, the claim form was not submitted on behalf of Harding's 5 "Estate," but only on behalf of Sowash in her individual capacity, noting the form was 6 signed “for Shannon Sowash” by an attorney, Brian Lance (see County’s Req. for Judicial 7 Notice Ex. 1), who the County appears to suggest does not represent the Estate. The 8 section of the form titled "Claimant's Name," however, identifies the "Claimant" as 9 "Shannon Sowash, Individually & as Successor In Interest to Anthony Harding," and 10 states said "Claimant" is represented by Brian Lance, as well as another attorney (see 11 id.), thus providing notice that Sowash, through counsel, is asserting claims both on her 12 own behalf and on behalf of Harding’s estate. Additionally, the "Itemization of Claim" 13 section lists not only "Wrongful Death" (see id.), a claim that can only be brought in 14 Sowash's individual capacity, but also lists "Pre Death Pain and Suffering" (see id.), i.e., a 15 survival claim, which can only be brought on behalf of Harding’s estate. Further, in the 16 section of the form in which the claimant is directed to state the "particular action by the 17 County or its employees [that] caused the alleged damage or loss," Sowash is identified 18 as "Mother and Next of Kin to Anthony Harding" (see id.), again providing notice that she 19 is asserting both a claim in her individual capacity and a claim on behalf of Harding’s 20 estate. 21 Under such circumstances, the Court finds the County had sufficient notice that 22 Sowash was seeking to recover, on behalf of Harding’s estate, damages based on pain 23 and suffering Harding assertedly experienced prior to his death. See White v. Moreno 24 Valley Unified Sch. Dist., 181 Cal. App. 3d 1024, 1031 (1986) (holding "test" to determine 25 whether claim form submitted to public entity discloses cause of action asserted in court 26 complaint is "whether sufficient information is disclosed on the face of the filed claim to 27 reasonably enable the public entity to make an adequate investigation of the merits of the 1 claim and to settle it without the expense of a lawsuit").9 2 Next, the County argues the claim form was untimely, citing the requirement that a 3 "claim relating to a cause of action for death or for injury to [a] person" must be presented 4 to the public entity "not later than six months after the accrual of the cause of action." 5 See Cal. Gov't Code § 911.2(a). Here, the County notes, Sowash's claim form was 6 submitted to the County on July 11, 2024, and the "Date of Incident" is listed as 7 "01/14/2023" (see County’s Req. for Judicial Notice Ex. 1), a date almost a year and half 8 after the incident. In the section of the form asking “[w]hat particular action by the County 9 or its employees caused the alleged damage or injury,” however, the following answer is 10 provided: "[Harding] died from fentanyl withdrawl [sic] while incarcerated at Maguire 11 Correctional Facility on January 14, 2024[;] [t]he San Mateo County Sheriff's Office and 12 San Mateo County Health Services failed to monitor, provide, and summon care to 13 Anthony Harding[,] [which] failure to provide care to Anthony Harding resulted in his 14 death." (See id.) January 14, 2024, is a date within the requisite six-month period. 15 Given the above-described discrepancy, the County, at a minimum, should have realized 16 that either "2023" or "2024" was a typographical error, and the County does not suggest 17 that, as a result thereof, it was unable to "adequately investigate [the] claims and settle 18 them, if appropriate," which is the "purpose" of the claim presentation requirement. See 19 Stockett v. Ass'n of Cal. Water Agencies State Powers Ins. Authority, 34 Cal. 4th 441, 20 446 (2004). 21 Lastly, the County argues the facts alleged in support of the Fourth Cause of 22 Action are not fairly reflected in the claim form. See id. at 447 (holding "facts underlying 23 9 The cases cited by the County are distinguishable, as they involve claim forms in 24 which only one claimant was identified whereas in the subsequent civil action a second individual or entity not mentioned in the claim form attempted to rely on it for purposes of 25 satisfying the claim presentation requirement. See, e.g., Nelson v. County of Los Angeles, 113 Cal. App. 4th 783, 796-97 (2003) (affirming dismissal of survival claims for 26 failure to satisfy claim presentation requirement, where no claim form was submitted by estate and, in claim form submitted by decedent's mother, "there [was] nothing . . . to 27 suggest it was filed in anything other than her individual capacity"; noting claim form 1 each cause of action in the complaint must have been fairly reflected in a timely claim"). 2 In particular, the County argues, "the FAC itself includes new facts which were never 3 mentioned in the [claim form]." (See County's Mot. at 25:11.) 4 As noted, the form submitted on behalf of Sowash states, in relevant part, that 5 Harding, while incarcerated, was undergoing "fentanyl withdrawal," that the "San Mateo 6 County Sheriff's Office . . . failed to . . . summon care to Anthony Harding," and that he 7 experienced "[p]re [d]eath [p]ain and [s]uffering" as a result. (See Def.'s Req. for Judicial 8 Notice Ex. 1.) Although the claim form lacks the type of factual allegations necessary to 9 state a cognizable claim in court, "a claim [form] need not contain the detail and 10 specificity required of a pleading," see Stockett, 34 Cal. 4th at 446, and "[a] complaint's 11 fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as 12 the complaint is not based on an entirely different set of facts," see id. at 447 (internal 13 quotation and citation omitted). "Only where there has been a complete shift in 14 allegations, usually involving an effort to premise civil liability on acts or omissions 15 committed at different times or by different persons than those described in the claim, 16 have courts generally found the complaint barred." Id. As the allegations in support of 17 the Fourth Cause of Action are not based on conduct by employees other than those 18 working in the Jail or on conduct other than a failure to summon medical care to address 19 Harding's fentanyl withdrawal symptoms, the Court finds the Fourth Cause of Action fairly 20 reflects the claim generally set forth in the claim form. 21 In sum, although the Fourth Cause of Action is subject to dismissal for failure to 22 plead compliance with the claim presentation requirement, affording Sowash leave to 23 amend to allege the requisite compliance would not be futile, unless said Cause of Action 24 is subject to dismissal without leave to amend on other grounds. The Court next 25 addresses the County’s arguments as to other grounds. 26 b. Dismissal for Failure to State a Claim 27 The County argues that the Fourth Cause of Action is subject to dismissal for the 1 that the FAC does not allege facts to support a finding that "a public employee" of the 2 County "[knew] or ha[d] reason to know" Harding was "in need of immediate medical care 3 and fail[ed] to take reasonable action to summon such medical care." (See County’s Mot. 4 at 26:3-7 (quoting Cal. Gov't Code § 845.6).) Although, as the County correctly 5 observes, the FAC includes no factual allegations to support a finding that Corpus knew 6 or had any reason to know anything about Harding, the County is not entitled to dismissal 7 for failure to state a claim, as allegations contained in ¶¶ 22 and 23 of the FAC are 8 sufficient to plead that two other public employees, in particular, Rahimi and Galarza, 9 had, at a minimum, reason to know Harding was in need of immediate medical care and 10 took no action to summon it.10 11 In particular, the FAC alleges that, at “approximately 6:23 a.m.” on January 14, 12 2024, Rahimi and Galarza were "conduct[ing] a food pass" and entered Harding's cell 13 (see FAC ¶ 22), that when they turned on the light in the cell, they received "no physical 14 or verbal response" from Harding [and] saw him "lying on his bunk, unresponsive, with 15 urine and probably vomit on the floor" (see id.), that Rahimi told Galarza that Harding 16 "was not looking good" (see FAC ¶ 23), and that Rahimi and Galarza "failed to alert 17 medical staff" of Harding's condition (see id.). 18 c. Dismissal on Ground of Immunity 19 The County argues it is entitled to immunity under four statutes. As discussed 20 below, however, the FAC does not include facts to support a finding that any of those 21 statutes provides the County with immunity as to a claim under § 845.6. 22 First, the County cites § 820.2 of the Government Code, which provides that, 23 "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury 24 resulting from his act or omission where the act or omission was the result of the exercise 25

26 10 A public entity's liability under § 845.6 is "vicarious," see Lawson v. Superior Court, 180 Cal. App. 4th 1372, 1382 (2010), and, consequently, the Court considers 27 whether Sowash has alleged facts sufficient to support a finding that a public employee 1 of the discretion vested in him, whether or not such discretion be abused." See Cal. 2 Gov't Code § 820.2. Section 845.6, however, provides otherwise and sets forth a 3 mandatory duty, as it expressly states a public employee "is liable" if such employee 4 knows or has reason to know that a prisoner is in need of immediate medical care and 5 fails to take reasonable action to summon such medical care. See Cal. Gov. Code 6 § 845.6. 7 Next, the County cites § 855.6 of the Government Code, which provides that, 8 "[e]xcept for an examination or diagnosis for the purpose of treatment, neither a public 9 entity nor a public employee acting within the scope of his employment is liable for injury 10 caused by the failure to make a physical or mental examination, or to make an adequate 11 physical or mental examination, of any person for the purpose of determining whether 12 such person has a disease or physical or mental condition that would constitute a hazard 13 to the health or safety of himself or others." See Cal. Gov't Code § 855.6. Sowash does 14 not allege, however, a claim based on a theory that Rahimi or Galarza failed to conduct 15 an examination, or conducted an inadequate examination, for the purpose of determining 16 whether Harding had a disease or condition that would constitute a hazard to the health 17 or safety of himself or to others. Rather, her claim is based on the theory that, whatever 18 the cause, Harding was clearly in distress and they failed to take appropriation action. 19 Additionally, the County cites § 855.8 of the Government Code, which provides 20 that "[n]either a public entity nor a public employee acting within the scope of his 21 employment is liable for injury resulting from diagnosing or failing to diagnose that a 22 person is afflicted with mental illness or addiction or from failing to prescribe for mental 23 illness or addiction," see Cal. Gov't Code § 855.8(a), and that "[a] public employee acting 24 within the scope of his employment is not liable for administering with due care the 25 treatment prescribed for mental illness or addiction," see Cal. Gov't Code § 855.8(b). 26 Sowash does not allege, however, that Rahimi or Galarza had any involvement in or 27 responsibility for determining whether Harding had a mental illness or addiction, or that 1 Lastly, the County cites § 856 of the Government Code, which provides that 2 "[n]either a public entity nor a public employee acting within the scope of his employment 3 is liable for any injury resulting from determining in accordance with any applicable 4 enactment: (1) [w]hether to confine a person for mental illness or addiction[;] (2) [t]he 5 terms and conditions of confinement for mental illness or addiction[;] [or] (3) [w]hether to 6 parole, grant a leave of absence to, or release a person confined for mental illness or 7 addiction," see Cal. Gov't Code § 856(a), and that "[a] public employee is not liable for 8 carrying out with due care [such] a determination," see Cal. Gov't Code § 856(b). 9 Sowash does not allege, however, that Rahimi or Galarza, pursuant to any "enactment" 10 or otherwise, made any of the determinations set forth in § 856(a). 11 5. Fifth Cause of Action 12 The Fifth Cause of Action asserts a claim for "Professional Negligence." 13 For the reasons stated above, the claim, to the extent asserted against the 14 County, Corpus, Rahimi, and Galarza, is subject to dismissal for failure to allege 15 compliance with the claim presentation requirement in the Government Claims Act. 16 Additionally, Sowash has not identified any statutory basis for such claim, as is 17 required to state a claim against the County. See Cal. Gov't Code § 815 (providing that, 18 "[e]xcept as otherwise provided by statute[,] . . . [a] public entity is not liable for an injury, 19 whether such injury arises out of an act or omission of the public entity or a public 20 employee or any other person") (emphasis added). Consequently, for this additional 21 reason, the Fifth Cause of Action is subject to dismissal to the extent asserted against the 22 County.11 23 // 24 11 As a statutory basis for the Fifth Cause of Action has not been identified, the 25 Court does not address herein the County's additional argument that Sowash fails to state sufficient facts to state a claim. Additionally, the Court finds the County lacks 26 standing to argue the three public employees named in the FAC are entitled to dismissal in light of the applicable statute of limitations. See In re Grand Jury Subpoenas Dated 27 December 10, 1987, 926 F.2d at 852 (finding movant “lack[ed] standing to challenge” 1 6. Punitive Damages 2 The FAC's prayer for relief includes a claim for punitive damages. (See FAC, 3 prayer ¶ 4.) The County argues, and Sowash "concedes" (see Pl.'s Opp. to County's 4 Mot. at 25:25), punitive damages are not available against the County. Consequently, 5 such claim is subject to dismissal as against the County. 6 7. Attorney's Fees 7 The FAC's prayer for relief includes a claim for attorneys’ fees (see FAC, prayer at 8 13:13-14), which claim, the County argues, should be dismissed. As set forth below, the 9 Court agrees. 10 First, to the extent Sowash's claim for fees is brought pursuant to § 42 U.S.C. 11 1988, which statute provides a court with discretion to award fees in § 1983 cases, the 12 claim is subject to dismissal for the reason that Sowash has failed to state a cognizable 13 claim against the County under § 1983. Additionally, to the extent Sowash's claims for 14 fees are brought pursuant to 42 U.S.C. § 12205 and § 52 of the California Civil Code, 15 which statutes, respectively, provide a court with discretion to award fees in cases 16 brought under the Americans with Disabilities Act ("ADA") and the Bane Act, her claims 17 for fees are subject to dismissal, as Sowash has not asserted any ADA or Bane Act 18 claims, and, consequently, said dismissal applies equally to Corpus, Rahimi, and 19 Galarza. See Silverton, 644 F.2d at 1341. 20 B. Vituity Defendants' Motion to Dismiss 21 1. First, Second, and Third Causes of Action 22 As noted, Sowash asserts, as the First through Third Causes of Action, claims 23 under § 1983. The Vituity Defendants argue the FAC lacks facts to support any § 1983 24 claims against either of them. As set forth below, the Court agrees. 25 A private party that contracts with the government to provide "medical treatment of 26 prison inmates" acts under color of state law. See West v. Atkins, 487 U.S. 42, 54 27 (1988). Where the private party is an entity, liability under § 1983 requires a showing that 1 cause of the claimed injury." See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th 2 Cir. 2012) (internal quotation and citation omitted). As Vituity Defendants correctly 3 observe, the FAC does not identify any policy, custom, or pattern on the part of Vituity, let 4 alone facts to show that such a policy, custom, or pattern caused Harding's injuries.12 5 A physician who is not an employee of a government entity acts under color of 6 state law for purposes of § 1983 when providing medical services to prisoners. See 7 West, 487 U.S. at 54. Although Sowash alleges Dr. Hersk is a physician who works at 8 the Jail as an employee of Vituity (see FAC ¶ 6), the FAC includes no factual allegations 9 that Dr. Hersk played a role in deciding the medical care that Vituity would or would not 10 provide to Harding. Additionally, to the extent Sowash alleges Dr. Hersk failed to 11 adequately train and supervise others working at the Jail, the Third Cause of Action is 12 subject to dismissal for the reasons set forth above with respect to the County. 13 2. Fourth Cause of Action 14 As noted, the Fourth Cause of Action alleges a violation of § 845.6, which provides 15 that "a public employee, and the public entity where the employee is acting within the 16 scope of his employment, is liable if the employee knows or has reason to know that the 17 prisoner is in need of immediate medical care and he fails to take reasonable action to 18 summon such medical care." See Cal. Gov't Code § 845.6 (emphasis added). 19 The Vituity Defendants argue that a claim under § 845.6 cannot be stated against 20 them because Vituity is not a public entity and neither Vituity nor Dr. Hersk is a public 21 employee. The Court agrees, and will dismiss the Fourth Cause of Action as against the 22 Vituity Defendants, as well as against the five registered nurses who are named as 23 defendants and alleged to be employees of Vituity. (See FAC ¶ 6 (identifying Nicole 24 Schumacher ("Schumacher"), Henry Garcia ("Garcia"), Jeanne Bernavage 25

26 12 To the extent Sowash, in describing the policy in ¶ 33 of the FAC as a policy of "defendants," asserts the policy is that of Vituity, such claim fails for the reasons set forth 27 above with respect to the County, namely, that the FAC lacks facts to show Vituity was 1 ("Bernavage"), Allison Chen ("Chen"), and Layla Shawasheh ("Shawasheh") as nurses 2 employed by Vituity who worked at Jail)); Silverton, 644 F.2d at 1345. 3 Specifically, a "public entity" is defined in the Government Claims Act as "the 4 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, 6 public agency, and any other political subdivision or public corporation in the State," see 7 Cal. Gov't Code § 811.2, none of which describe Vituity. Further, Vituity, Dr. Hersk, and 8 the five nurses employed by Vituity cannot be described as public employees, as the 9 term "public employee" is defined as "an employee of a public entity," see Cal. Gov't 10 Code § 811.4, and "does not include an independent contractor," see Cal. Gov't Code 11 § 810.2. 12 3. Fifth Cause of Action 13 As noted, the Fifth Cause of Action asserts a claim of professional negligence. 14 The Vituity Defendants contend Sowash has failed to sufficiently allege any such claim 15 against either of them. 16 To the extent the Fifth Cause of Action is asserted against Dr. Hersk, the Court 17 agrees. As discussed above, the FAC does not include factual allegations that Dr. Hersk 18 played a role in the medical services provided to Harding, meaning she cannot be found 19 to have breached a professional standard with regard to services provided or not 20 provided to Harding. 21 To the extent the Fifth Cause of Action is asserted against Vituity, however, the 22 Court disagrees. The sole argument made by the Vituity Defendants with respect to 23 Vituity itself is that, in the absence of an alleged cognizable professional negligence claim 24 against Dr. Hersk, Sowash likewise fails to state a claim against Vituity, Dr. Hersk's 25 employer. The FAC, however, alleges the five nurses employed by Vituity "breached the 26 applicable medical and professional standards of care owed to . . . Harding in the care 27 and treatment he received" (see, e.g., FAC ¶¶ 11-21, 24-26, 31 (identifying alleged acts 1 and/or omissions on part of five nurses)),13 and Vituity is vicariously liable should the trier 2 of fact find the nurses were professionally negligent in the course of their employment, 3 see Perez v. Van Groningen & Sons, 41 Cal. 3d 962, 967 (1986) (holding "an employer is 4 vicariously liable for his employee's torts committed within the scope of the 5 employment"). 6 4. Punitive Damages 7 As noted, the FAC's prayer for relief includes a claim for punitive damages. The 8 Vituity Defendants argue such claim is subject to dismissal. 9 With respect to Dr. Hersk, the Court agrees, as no substantive claim has been 10 stated against her. 11 With respect to Vituity, as to whom the Court will allow the Fifth Cause of Action to 12 proceed, the Vituity Defendants argue the Court should require Sowash to follow the 13 procedure set forth in § 425.13 of the Code of Civil Procedure.14 The Court disagrees. 14 Under the cited statute, "[i[n any action for damages arising out of the professional 15 negligence of a health care provider, no claim for punitive damages shall be included in a 16 complaint or other pleading unless the court enters an order allowing an amended 17 pleading that includes a claim for punitive damages to be filed," and "the court may allow 18 the filing of an amended pleading claiming punitive damages on a motion by the party 19 seeking the amended pleading and on the basis of the supporting and opposing affidavits 20 presented that the plaintiff has established that there is a substantial probability that the 21 plaintiff will prevail on the claim." See Cal. Code Civ. Proc. § 425.13(a). The Court, 22 however, finds persuasive those district courts that have found § 425.13(a) does not 23

24 13 There being no argument by Vituity Defendants that Sowash has failed to allege any acts of professional negligence by those five nurses, or any of them, the Court 25 assumes, for purposes of the instant motion only, Sowash's allegations are sufficient. 26 14 The Vituity Defendants do not rely on § 3294(b) of the Civil Code, which section limits the circumstances under which an employer can be held liable for punitive 27 damages. (See Vituity Defs.' Mot. at 26:14-26 (quoting Civil Code §§ 3294(a) and 1 apply in federal court, as it is a procedural rule "for managing and directing pleadings" 2 and conflicts with Rule 8(a)(3), which states a complaint "must contain," inter alia, "a 3 demand for the relief sought, which may include relief in the alternative or different types 4 of relief." See Scalia v. County of Kern, 308 F. Supp. 3d 1064, 1091 (E.D. Cal. 2018) 5 (internal quotations and citations omitted). 6 5. Treble Damages 7 The FAC's prayer for relief includes a claim for treble damages (see FAC, prayer 8 ¶ 5), which claim the Vituity Defendants argue is subject to dismissal. The Court agrees, 9 given that, as the Vituity Defendants point out and Sowash fails to address in her 10 opposition, none of the claims in the FAC provide for treble damages. Said dismissal will 11 apply to Vituity and each of its employees. See Silverton, 644 F.2d at 1345. 12 CONCLUSION 13 For the reasons stated above: 14 1. The County's motion to dismiss is hereby GRANTED, as follows: 15 a. The First, Second, and Third Causes of Action, as well as the claim for 16 punitive damages and the claim for attorneys’ fees under § 1988, are DISMISSED to the 17 extent asserted against the County. 18 b. The Fourth and Fifth Causes of Action, as well as the claims for 19 attorneys’ fees under the ADA and the Bane Act, are DISMISSED to the extent asserted 20 against the County, Corpus, Rahimi, and Galarza. 21 2. The Vituity Defendants' motion to dismiss is hereby GRANTED in part and 22 DENIED in part, as follows: 23 a. The FAC is DISMISSED in its entirety as to Dr. Hersk. 24 b. The First through Fourth Causes of Action, as well as the claim for treble 25 damages, are DISMISSED to the extent asserted against Vituity. 26 c. The Fourth Cause of Action and the claim for treble damages are 27 DISMISSED to the extent asserted against Schumacher, Garcia, Bernavage, Chen, and 1 d. To the extent the Fifth Cause of Action and the claim for punitive 2 || damages are asserted against Vituity, the motion is DENIED. 3 3. Sowash is hereby afforded leave to file a Second Amended Complaint to cure 4 || the deficiencies identified above and/or for the purpose of otherwise amending the claims 5 || asserted in the FAC. Any such amended pleading shall be filed no later than January 30, 6 || 2026. If Sowash elects to amend, however, she may not add any new defendants or new 7 || claims without first obtaining leave of court. See Fed. R. Civ. P. 15(a)(2). 8 4. In light of the above, the Case Management Conference, presently scheduled 9 || for February 20, 2026, is hereby CONTINUED to May 15, 2026, at 10:30 a.m. A Joint 10 || Case Management Statement shall be filed no later than May 8, 2026. 11 IT IS SO ORDERED. 12

13 || Dated: January 9, 2026 □

XINE M. CHESNEY

14 United States District Judge

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