1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF GERARDO CRUZ- Case No.: 17-cv-569-AJB-NLS SANCHEZ, by and through his successor- 12 in-interest Paula Garcia Rivera, et al., ORDER DENYING DEFENDANTS’ 13 EX PARTE APPLICATION FOR Plaintiffs,

RECONSIDERATION

14 v.

15

THE UNITED STATES OF AMERICA,

(Doc. No. 136) 16 et al., 17 Defendants. 18 19 Presently before the Court is Defendants’ ex parte application for reconsideration. 20 (Doc. No. 136.) Plaintiff filed a response to Defendants’ motion. (Doc. No. 144.) Based on 21 the arguments presented in the briefing, the Court DENIES Defendants’ ex parte 22 application for reconsideration. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 BACKGROUND 2 The instant matter revolves around the arrest, incarceration, and eventual death of 3 Gerardo Cruz-Sanchez. (See generally Doc. No. 83.) On August 7, 2018, Plaintiffs filed 4 their third amended complaint (“TAC”). (Doc. No. 83.) Defendants United States, Landin, 5 and CoreCivic answered the TAC on August 21, 2018. (Doc. Nos. 84, 85.) On September 6 14, 2018, Defendants Landin and CoreCivic filed their motion for summary judgment. 7 (Doc. No. 107.) The Court granted in part and denied in part the motion for summary 8 judgment. (Doc. No. 128.) Defendants then filed the instant ex parte application for 9 reconsideration. (Doc. No. 136.) This Order follows. 10 LEGAL STANDARD 11 District courts have the inherent authority to entertain motions for reconsideration 12 of interlocutory orders. Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996) 13 (“[I]nterlocutory orders ... are subject to modification by the district judge at any time prior 14 to final judgment.”); see also Fed. R. Civ. P. 54(b); Balla v. Idaho State Bd. of Corr., 869 15 F.2d 461, 465 (9th Cir. 1989). Absent highly unusual circumstances, “[r]econsideration is 16 appropriate if the district court (1) is presented with newly discovered evidence, (2) 17 committed clear error or the initial decision was manifestly unjust, or (3) if there is an 18 intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, 19 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Beal v. Royal Oak Bar, No. 13-cv-04911- 20 LB, 2016 WL 3230887, at * 1–2 (N.D. Cal. June 13, 2016); In re: Incretin Mimetics Prods. 21 Liab. Litig., No. 13md2452 AJB (MDD), 2014 WL 12539702, at *1 (S.D. Cal. Dec. 9, 22 2014); Verinata Health, Inc. v. Sequenom, Inc., No. C 12-00865 SI, 2014 WL 4076319, at 23 *2 (N.D. Cal. Aug. 18, 2014); Hydranautics v. FilmTec Corp., 306 F. Supp. 2d 958, 968 24 (S.D. Cal. 2003). 25 However, a motion for reconsideration is an “extraordinary remedy, to be used 26 sparingly in the interests of finality and conservation of judicial resources.” Carroll v. 27 Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Such a motion may not be used to raise 28 arguments or present evidence for the first time when they could reasonably have been 1 raised earlier in the litigation. Sch. Dist. No. 1J, Multnomah Cnty., 5 F.3d at 1263. It does 2 not give parties a “second bite at the apple.” See id.; see also Weeks v. Bayer, 246 F.3d 3 1231, 1236–37 (9th Cir. 2001). “[A]fter thoughts” or “shifting of ground” do not constitute 4 an appropriate basis for reconsideration. Ausmus v. Lexington Ins. Co., No. 08-CV-2342- 5 L, 2009 WL 2058549, at *2 (S.D. Cal. July 15, 2009). 6 In addition, Local Civil Rule 7.1(i)(1) states that a party may apply for 7 reconsideration “[w]henever any motion or any application or petition for any order or 8 other relief has been made to any judge and has been refused in whole or in part . . . .” S.D. 9 Cal. CivLR 7.1. The party seeking reconsideration must show “what new or different facts 10 and circumstances are claimed to exist which did not exist, or were not shown, upon such 11 prior application.” Id. 12 DISCUSSION 13 Defendants base their ex parte application for reconsideration on three grounds: (1) 14 Defendants did not proximately cause Mr. Cruz-Sanchez’s death; (2) punitive damages are 15 not appropriate against Defendant CoreCivic; and (3) Plaintiffs’ Bane Act claim fails as a 16 matter fact and law. (See generally Doc. No. 136.) Defendants state that their purpose in 17 bringing this motion is to bring to the Court’s attention arguments that were raised in 18 briefing and at oral argument, but not addressed by the Court in its Order. (Doc. No. 136 19 at 2.) 20 First, the Court notes that Defendants use of an ex parte application to bring the 21 Court’s attention to arguments that were previously raised is inappropriate. In seeking 22 reconsideration, a party must show what new or different facts and circumstances are 23 claimed to exist which did not exist, or were not shown, upon such prior application. S.D. 24 Cal. CivLR 7.1. Defendants have failed to do so, however, the Court will address each of 25 Defendants’ arguments. 26 A. Causation and Wrongful Death 27 Defendants assert that there is no evidence to show that any failure to promptly 28 summon medical care was the proximate cause of Mr. Cruz-Sanchez’s death. (Doc. No. 1 136 at 4.) First, Plaintiffs challenge this argument by asserting that Defendants did not raise 2 this argument in their motion for summary judgment. However, the Court notes that this 3 argument was briefly mentioned in Defendants’ motion for summary judgment and at oral 4 argument. (Doc. No. 107-1 at 18; Doc. No. 127 at 45, ln. 16–21.) 5 Under California’s Wrongful Death Statute, Cal. Civ. Code § 377.60, “the plaintiff 6 must prove the death was ‘caused by’ the defendant’s wrongful act or neglect.” Bromme v. 7 Pavitt, 5 Cal. App. 4th 1487, 1497 (1992) (citation omitted). In a personal injury action, 8 “causation must be proven within a reasonable medical probability based upon competent 9 expert testimony.” Id. 10 Defendants rely on their infectious disease expert’s testimony that “even if Mr. Cruz- 11 Sanchez had been seen earlier on the day of February 26, 2016, his evaluation would have 12 necessitated his transfer to the hospital where the treatment and support would have been 13 identical to what he subsequently received,” and that an “[e]arlier admission (by a few 14 hours) would not have altered his need for antibiotics, respiratory support or his demise, 15 which occurred more than three days after admission” to prove a lack of causation. (Doc. 16 No. 136 at 4.) Plaintiffs highlight that Defendants’ expert says nothing about what would 17 have happened had Defendants acted days before on February 21, 2016, or had Defendants 18 taken action in response to Jonathan Franks’ message. (Doc. No. 144 at 3.) Plaintiffs’ 19 medical expert opined that had Mr. Cruz-Sanchez’s pneumonia been treated earlier, he 20 would have likely survived the infection. Defendants’ expert only discusses that an 21 admission a few hours earlier on the 26th would likely not have altered Mr. Cruz-Sanchez’s 22 condition. There is an issue of fact as to whether Defendants failure to act sooner, for 23 example on the 21st, caused Mr. Cruz-Sanchez’s death. 24 Defendants argue that Defendant Landin and Mr. Cruz-Sanchez did not encounter 25 one another in the days leading up to February 26, 2016 and thus, could not have intervened 26 earlier to save Mr. Cruz-Sanchez’s life. However, as the Court already held there is a 27 question of fact as to whether comments were made to Mr. Chavez by Defendants prior to 28 1 February 26, 2016. (Doc. No. 128 at 8.) Thus, there is a question of fact as to whether 2 Defendants caused Mr. Cruz-Sanchez’s death. 3 Defendants assert that all of Plaintiffs’ claims are based in wrongful death. (Doc. 4 No. 136 at 4.) Plaintiffs argue that this is simply not true. Plaintiffs allege claims based on 5 Defendants’ deliberate indifference and Defendants’ interference with his right to medical 6 care. The Court agrees that Plaintiffs have alleged claims based on other theories besides 7 wrongful death. However, this does not impact the Court’s analysis as to causation. 8 B. Punitive Damages 9 Defendants assert that the Court overlooked a necessary requirement before a 10 corporation can be liable for punitive damages. (Doc. No. 136 at 4.) California’s punitive 11 damages statute “requires proof of malice among corporate leaders” before imposing 12 punitive damages against a corporation. Cruz v. HomeBase, 83 Cal. App. 4th 160, 167 13 (2000). An employer is subject to punitive damages for the acts of an employee where the 14 employer knows the employee to be unfit and employs him “with a conscious disregard of 15 the rights or safety of others.” Cal. Civ. Code § 3294(b). “With respect to a corporate 16 employer, the advance knowledge and conscious disregard, authorization, ratification or 17 act of oppression, fraud, or malice must be on the part of an officer, director, or managing 18 agent of the corporation.” Cal. Civ. Code § 3294(b). 19 Defendants argue that Plaintiffs provided no evidence of malice on behalf of any of 20 Defendant CoreCivic’s individual officers, directors, or managing agents. Further, 21 Defendants assert that Defendant Landin is not an officer, director, or managing agent. 22 Plaintiffs contend that Defendant Landin abided with the policy that was deliberately 23 indifferent to Mr. Cruz-Sanchez’s medical needs. Defendant CoreCivic denies that it has a 24 legal duty to provide medical care to Mr. Cruz-Sanchez. This denial of a duty evidences 25 the necessary malice for liability, according to Plaintiffs. “When the entire organization is 26 27 1 For example, Mr. Chavez-Lopez allegedly stated during a phone call on February 17, “I told the guard and he says that they take them to the hospital only when they’re dying. I’m just hoping they’re not 28 1 involved in the acts that constitute malice, there is no danger a blameless corporation will 2 be punished for bad acts over which it had not control, the primary goal of the ‘management 3 requirement.’” Romo v. Ford Motor Co., 99 Cal. App. 4th 1115, 1140 (2002). Thus, it is a 4 question for the jury to decide whether the alleged policy that Defendant Landin followed 5 was deliberately indifferent to Mr. Cruz-Sanchez’s medical needs. The alleged policy is a 6 policy in place by Defendant CoreCivic and thus, satisfies the management requirement. If 7 the alleged policy was deliberately indifferent to Mr. Cruz-Sanchez’s medical needs, then 8 punitive damages may be awarded as determined by a jury. 9 C. Bane Act 10 Defendants assert that the Court’s ruling in denying summary judgment overlooked 11 Defendants’ arguments that Plaintiffs never pled a constitutional violation for deliberate 12 indifference, and even if they did, such a claim is not actionable against Defendants. 13 However, the Court specifically addressed Defendants’ argument that Plaintiffs did not 14 pled a constitutional violation for deliberate indifference in its Order. (Doc. No. 128 at 5.) 15 Defendants’ argument that the Bane Act claim would not be actionable against 16 Defendants was not raised in their amended motion for summary judgment. Defendants 17 briefly raised a similar argument in their reply. (Doc. No. 114 at 3–4.) In their reply, 18 Defendants argued the claims Plaintiffs sought must be brought under Bivens v. Six 19 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). However, 20 the Court “need not consider arguments raised for the first time in a reply brief.” See 21 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007); see also United States v. Anderson, 22 472 F.3d 662, 668 (9th Cir. 2006). To raise this argument now is also improper. A motion 23 for reconsideration may not be used to raise arguments or present evidence for the first 24 time when they could reasonably have been raised earlier in the litigation. Sch. Dist. No. 25 1J, Multnomah Cnty., 5 F.3d at 1263. It does not give Defendants a “second bite at the 26 apple.” See id.; see also Weeks, 246 F.3d at 1236–37. 27 Defendants also argue even if Landin made those statements they were directed at 28 Mr. Chavez, not Mr. Cruz-Sanchez. (Doc. No. 136 at 7.) Defendants assert that there is no 1 ||evidence that Mr. Chavez relayed these comments to Mr. Cruz-Sanchez. (/d.) The Bane 2 || Act is limited to those who “themselves have been the subject of violence or threats.” Bay 3 Rapid Transit. Dist. v. Superior Court, 38 Cal. App. 4th 141, 144 (1995). Here, even 4 || though the alleged comments were made to Mr. Chavez, Mr. Cruz-Sanchez was the subject 5 || of the alleged statements. In Bay Area Rapid Transit. Dist., the plaintiffs were parents of a 6 || child that had been killed by a police officer and were seeking a Bane Act claim on their 7 || behalf. 7d. Here, the Estate of Mr. Cruz-Sanchez is bringing the Bane Act claim on his own 8 || behalf. Accordingly, it is a question for the jury to decide whether these alleged statements 9 || amount to creating threats, intimidation, or coercion. 10 CONCLUSION 11 Based on the foregoing, the Court DENIES Defendants’ ex parte application for 12 || reconsideration. 13 14 || IT IS SO ORDERED. 13 |! Dated: July 9, 2020 | | □□ rz Le 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28