1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO LOPEZ, Case No.: 20-CV-533 TWR (BLM)

12 Plaintiff,

ORDER GRANTING PLAINTIFF’S

13 v. EX PARTE MOTION FOR LEAVE

TO FILE FIRST AMENDED

14 CITY OF EL CAJON; OFFICER R.

COMPLAINT

GRAY, in his individual capacity; and 15

DOES 1–30,

(ECF No. 12) 16 Defendants. 17

18 Presently before the Court is Plaintiff’s Ex Parte Motion for Leave to File First 19 Amended Complaint (“Mot. to Amend,” ECF No. 12). Defendants filed an Opposition 20 (ECF No. 15), and Plaintiff filed a Reply (ECF No. 16). Having carefully considered 21 Plaintiff’s Proposed First Amended Complaint (ECF No. 12-1), the Parties’ arguments, 22 and the law, the Court GRANTS Plaintiff’s Ex Parte Motion for Leave to File First 23 Amended Complaint. 24 BACKGROUND 25 On March 20, 2020, Plaintiff filed a Complaint alleging causes of action for 26 excessive force and failure to intercede under 42 U.S.C. § 1983 against Defendants Officer 27 R. Gray and Doe Defendants and for negligence and violation of the Bane Act under 28 California Civil Code § 52.1. (See generally ECF No. 1.) On April 22, 2020, Defendants 1 City of El Cajon and Officer R. Gray filed a Motion to Dismiss Plaintiff’s Complaint. (See 2 ECF No. 7.) On August 27, 2020, Honorable William Q. Hayes dismissed Plaintiff’s 3 Complaint without prejudice, finding that Plaintiff failed to state a claim under §1983, and 4 provided Plaintiff 30 days to file for leave to amend. (See ECF No. 11.) 5 LEGAL STANDARD 6 Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend his or her 7 complaint once as a matter of course within specified time limits. Fed. R. Civ. P. 15(a)(1). 8 “In all other cases, a party may amend its pleading only with the opposing party’s written 9 consent or the court’s leave. The court should freely give leave when justice so requires.” 10 Fed. R. Civ. P. 15(a)(2). 11 “Rule 15’s policy of favoring amendments to pleadings should be applied with 12 ‘extreme liberality,’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing 13 Rosenberg Brothers & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam)), and its 14 application is committed to “the sound discretion of the trial court.” Id. (citing PSG Co. v. 15 Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659, 664 (9th Cir. 1969), cert. 16 denied, 397 U.S. 918 (1970)). The Supreme Court has cautioned that courts generally 17 should grant leave to amend absent a showing of “undue delay, bad faith or dilatory motive 18 on the part of the movant, repeated failure to cure deficiencies by amendments previously 19 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, 20 [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Rule 15(a) ‘is to 21 be applied with extreme liberality,’ and whether to permit amendment is a decision 22 ‘entrusted to the sound discretion of the trial court.’” EFG Bank AG, Cayman Branch v. 23 Transamerica Life Ins. Co., No. 216CV08104CASGJSX, 2019 WL 5784739, at *3 (C.D. 24 Cal. Nov. 4, 2019) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 25 1079 (9th Cir. 1990); Jordan v. Cty. of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982)). 26 The non-moving party bears the burden of showing why leave to amend should not 27 be granted. Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530–31 (N.D. Cal. 1989). 28 / / / 1 ANALYSIS 2 Plaintiff seeks to amend his cause of action for excessive force under § 1983 “to 3 address the Court’s finding that there were insufficient facts in the Complaint to support 4 an inference that the use of force was unreasonable under the circumstances.” (See Motion 5 to Amend at 2). In the proposed First Amended Complaint, Plaintiff also adds additional 6 facts under his negligence and Bane Act claims. (See generally ECF No. 12-1.) 7 Defendants argue that Plaintiff’s proposed amendments are futile for several reasons: 8 (1) Defendant Officer Gray’s use of force was objectively reasonable and he is entitled to 9 qualified immunity; (2) Defendant City of El Cajon, a public entity, cannot be liable for 10 general negligence; (3) Plaintiff cannot plead facts to establish Defendant City of El Cajon 11 was liable under the theory of respondent superior; and (4) Plaintiff fails to state a cause of 12 action under the Bane Act. (See generally ECF No. 15). 13 “[A] proposed amendment is futile only if no set of facts can be proved under the 14 amendment to the pleadings that would constitute a valid and sufficient claim or defense.” 15 Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citing Baker v. Pac. Far 16 E. Lines, Inc., 451 F. Supp. 84, 89 (N.D. Cal. 1978)). Courts ordinarily do not consider the 17 validity of a proposed amended pleading in deciding whether to grant leave to amend, 18 instead deferring consideration of challenges to the merits of a proposed amendment until 19 after leave to amend has been granted and the amended pleadings have been filed. Netbula, 20 LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) (citation omitted); accord 21 Green Valley Corp. v. Caldo Oil Co., No. 09cv4028-LHK, 2011 WL 1465883, at *6 (N.D. 22 Cal. Apr. 18, 2011) (“[T]he general preference [is] against denying a motion for leave to 23 amend based on futility.”). Consequently, arguments concerning the sufficiency of the 24 proposed pleadings—even if meritorious—are better left for briefing on a motion to 25 dismiss. Lillis v. Apria Healthcare, No. 12cv52-IEG (KSC), 2012 WL 4760908, at * 1 26 (S.D. Cal. Oct. 5, 2012). 27 / / / 28 / / / 1 Defendants are effectively asking this Court to turn their Opposition into a motion 2 dismiss. The Court finds it is appropriate to allow Plaintiff leave to amend before 3 evaluating Defendants’ arguments on the merits. 4 CONCLUSION 5 For the foregoing reasons, the Court GRANTS Plaintiff's Ex Parte Motion for 6 || Leave to File First Amended Complaint (ECF No. 12). Plaintiff SHALL FILE his First 7 || Amended Complaint on or before three (3) days of the electronic docketing of this Order. 8 IT IS SO ORDERED. 9 10 . Dated: November 3, 2020 TED 12, 12 Honorable Todd W. Robinson 3 United States District Court

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