Opinion
No. Civ. S-05-02047 FCD KJM.
January 19, 2006
MEMORANDUM AND ORDER
This matter comes before the court on defendants' North Highland Recreation Park District ("District"), Travis Bill ("Bill"), Joanna McVay ("McVay"), Diane Richards ("Richards"), Robert Little ("Little"), Alan Matre ("Matre") and Kay Dahill's ("Dahill") (collectively "defendants") motion to dismiss plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motions are GRANTED in part and DENIED in part.
Defendants assert that Christine Bagley, Mary Wall, Heather Hornback, and Chuck Bernardi have not been served with plaintiffs' complaint and are therefore, not a part of the motion. (Defs.' Mot. at 2 n. 2).
All further references to a "Rule" are to the Federal Rules of Civil Procedure.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
The facts of this case are taken from plaintiffs' allegations in the complaint.
Plaintiff Adam G. Kelly was thirteen years old at the time of the events in question. (Pls.' Compl. at 5.) Plaintiff Ralphelia B. Grandinetti is Adam's foster mother and legal guardian. (Id.) Adam is a "special needs" foster child who has the mentality of a child of six to eight years of age and who also has epilepsy and some physical abnormalities. (Id.) Adam was a member of defendant North Highlands Recreation Park District's ("District") swim team, the "Highlander Dolphins Swim Team." (Id.)
On June 14, 2004, Adam was participating in his scheduled swimming practice. (Id.) Plaintiffs allege that Defendant Christine Bagley ("Bagley"), a swim coach for the team, placed or forced Adam to sit on a hot metal folding chair in direct sun in approximately 100 degree weather as some sort of discipline. Adam was forced to remain on the hot metal chair for approximately 35-45 minutes while Bagley yelled at Adam only inches from his face. (Id. at 5-6). When Adam complained that the hot metal chair was hurting him and got up from the chair, Bagley yelled at Adam that he had to remain in the chair or physically forced Adam back into the chair. (Id. at 6). Defendants Mary Wall and Heather Hornback both witnessed the interaction between Bagley and Adam, but took no action. (Id.) Adam's foster mother, Ralphelia Grandinetti ("Grandinetti") personally witnessed portions of the interaction between Adam and Bagley, but was prohibited from entering the pool area. (Id. at 11). As a result of these events, Adam became seriously ill and was treated at the Mercy San Juan Hospital Emergency Room that evening and into the next morning. (Id. at 6).
Plaintiffs allege that Bagley had been terminated from her previous job at the McKinley Park Pool for "abuse" or other improper conduct and that the individual defendants were aware of this fact prior to or after hiring Bagley. (Id. at 12). Plaintiffs also allege that "the acts of the defendants, and each of them, were done at the direction and with the knowledge, approval, and/or ratification, of the remaining defendants." (Id. at 5).
Plaintiffs further allege that defendants did not make reasonable accommodations or modifications in their policies, practices, or procedures to avoid discrimination on the basis of disability, but instead, imposed corporeal punishment upon Adam. (Id. at 9). As a result, Adam was ostracized, harassed, threatened, and/or retaliated against for publicizing, complaining about, and seeking disciplinary action for the June 14 events. (Id.) Plaintiffs allege that the conduct of defendants was motivated, at least in part, by the race, ethnicity, and/or national origin of Adam's foster mother, Ralphelia Grandinetti, who is Mexican/Hispanic-Italian. (Id. at 10).
Plaintiffs brought this action in Sacramento County Superior Court against the District and the individual defendants for assault, battery, false imprisonment, intentional infliction of emotional distress, and negligence under California state law. Plaintiffs allege disability discrimination under state and federal law and racial, ethnic, or national origin discrimination under state and federal law. Plaintiffs seek both compensatory and punitive damages. (Id. at 3).
Defendants removed the action to this court on October 11, 2005. Defendants filed this motion to dismiss all of plaintiffs' state and federal claims. Defendants also move to strike all claims for punitive damages.
STANDARD
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.
Given that the complaint is construed favorably to the pleader, the court may not dismiss the complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957);NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
Nevertheless, it is inappropriate to assume that plaintiff "can prove facts which it has not alleged or that the defendant ha[s] violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Calif., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir. 1986).
ANALYSIS
A. No Statutory Enactment Establishing Liability
Defendant District argues that plaintiffs' complaint fails to specifically identify the statutory enactment establishing liability for the state law causes of action alleged in plaintiffs' first, second, third, sixth, and seventh claims for relief. (Defs.' Mot. at 4). In California, governmental tort liability must be based on statute. Cal. Gov. Code § 815 ("Except as otherwise provided by state, . . . a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."); Thomas v. City of Richmond, 9 Cal. 4th 1154, 1157 (1995); Washington v. County of Contra Costa, 38 Cal. App. 4th 890, 895-96 (1995). A plaintiff asserting liability against a public entity "must specifically allege the applicable statute or regulation." See Thomas, 9 Cal. 4th at 1157; Washington, 38 Cal. App. 4th at 896 (discussing the need for specificity in the context of suits brought under § 815.6). "In order to recover plaintiffs have to show that there is some specific statutory mandate that was violated by the County, which violation was a proximate cause of the [harm]." Washington, 38 Cal. App. 4th at 896 (emphasis in original); see also Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 802 (1968) ("Since the duty of a governmental agency can only be created by statute or enactment, the statute or enactment claimed to establish the duty must at the very least be identified.").
Plaintiffs have not identified any statutes giving rise to public entity liability for defendant District. Without such identification, plaintiffs' complaint fails to establish public entity liability against defendant District. Therefore, defendant District's motion is GRANTED with leave to amend.
B. State Law Immunity
Defendants McVay, Richards, Little, Matre, and Dahill ("board defendants") are board members for defendant District. (Compl. at 5). Board defendants argue that various governmental immunities apply, shielding them from liability. Specifically, Board defendants argue that (1) they cannot be held vicariously liable for any torts of their subordinates pursuant to Cal. Gov. Code §§ 820.8- 820.9; and (2) they are entitled to discretionary immunity pursuant to Cal. Gov't Code § 820.2. 1. California Government Code Sections 820.8 and 820.9
Board defendants argue that their motion to dismiss should be granted because they cannot be held vicariously liable for the acts of others pursuant to §§ 820.8-820.9 of the Government Code. Section 820.8 provides that "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person." Section 820.9 provides that "members of governing boards of other local public entities . . . are not vicariously liable for injuries caused by the act or omission of the public entity or advisory body." To the extent that plaintiffs allege that board defendants are liable for the tortious conduct of others or for injuries caused by the public entity or board, board defendants are immune under the California Government Code.
Plaintiffs argue that the complaint sufficiently states a claim against board defendants because it alleges that "[t]he acts of the defendants, and each of them, were done at the direction and with the knowledge, approval, and/or ratification of the remaining defendants." (Compl. at 5). Plaintiffs contend that this allegation constitutes a claim for direct liability of the board defendants, not vicarious liability. Neither § 820.8 or § 820.9 exonerates board defendants from liability for injury caused by their own wrongful conduct. Therefore, plaintiffs allege that each board defendant is liable for their own tortious conduct, not for the conduct of other defendants.
On a motion to dismiss, the court must examine the allegations in the complaint in the light most favorable to the plaintiff and draw all reasonable inferences therefrom. See Fed.R.Civ.Proc. 12(b)(6). In this case, although far from illuminating, plaintiffs' allegations are sufficient to give board defendants notice of the claims against them and the grounds upon which they are based. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). Plaintiffs allege that board defendants directed the allegedly tortious actions of other named defendants and that board defendants also knew, approved, and/or ratified this conduct. Under a liberal notice pleading standard, these allegations, in conjunction with the facts alleged against other named defendants, are sufficient to state a claim against board defendants. Further, plaintiffs' assertions allege wrongful acts committed by board defendants, and therefore, are outside the scope of §§ 820.8-820.9. Therefore, board defendants' motion to dismiss based upon statutory immunity from vicarious liability under §§ 820.8-820.9 is DENIED.
2. California Government Code Section 820.2
Board defendants argue that their motion to dismiss should be granted because they are protected by state law discretionary immunity pursuant to § 820.2 of the Government Code. Section 820.2 provides immunity to a public employee for injuries resulting from "his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Cal. Gov't Code § 820.2 (West 2005). Generally, "a discretionary act is one which requires the exercise of judgment or choice." Kemmerer v. County of Fresno, 200 Cal. App. 3d 1426, 1437 (1988). However, California courts have not set forth a definitive rule which resolve every case. Id. Rather, the California Supreme Court has adopted an analysis that relies on the "policy considerations relevant to the purpose of granting immunity to the governmental agency whose employees act in discretionary capacities." Id. (internal citations omitted).
Immunity is reserved for those basic policy decisions which have been expressly committed to coordinate branches of government, and as to which judicial interference would thus be 'unseemly.' Such areas of quasi-legislative policy-making are sufficiently sensitive to call for judicial abstention from interference that might even in the first instance affect the coordinate body's decision-making process.Barner v. Leeds, 24 Cal. 4th 676, 685 (2000). "Immunity applies only to deliberate and considered policy decisions in which a conscious balancing of risks and advantages took place."Caldwell v. Montoya, 10 Cal. 4th 972, 981 (1995) (internal quotation omitted).
Plaintiffs' first, second, third, and sixth claims for relief allege intentional torts against board defendants. The allegation that plaintiffs provide in the complaint to support these claims is that "[t]he acts of the defendants, and each of them, were done at the direction and with the knowledge, approval, and/or ratification of the remaining defendants." (Compl. at 5). Under the liberal notice pleading standard, this allegation is sufficient to give board defendants notice of the basis of the claims against them. However, this broad allegation provides insufficient information in order to determine whether discretionary immunity applies.
At this stage of the litigation, based upon the allegations in the complaint, the court cannot determine whether the alleged direction, approval, or ratification by board defendants were basic policy decisions entitled to immunity under § 820.2, or whether the alleged actions were direct discrimination against the plaintiffs by board defendants. In the latter circumstance, board defendants would not be entitled to discretionary immunity under § 820.2. See Massey v. Banning Unified Sch. Dist., 256 F. Supp. 2d 1090, 1097 (C.D. Cal. 2003). Because the court cannot find that state discretionary immunity under § 820.2 applies to board defendants in regards to plaintiffs' first, second, third, and sixth claims for relief, board defendants' motion to dismiss is DENIED.
Plaintiffs' seventh claim for relief alleges that board defendants were negligent in their "failure or refusal to terminate or otherwise punish or discipline" the defendants involved in the June 14, 2004 incident. (Compl. at 12). The decision whether or not to initiate disciplinary proceedings and what discipline to impose is a discretionary decision. See Kemmerer, 200 Cal. App. 3d at 1438. "The decision involves the exercise of analysis and judgment as to what is just and proper under the circumstances and is not a purely ministerial act."Id.; see also Caldwell, 10 Cal. 4th at 983 ("The board's collective determination whether to . . . fire a person . . . must be considered a basic policy decision, immune from civil damages actions.").
Further, a fair reading of the complaint reveals allegations that the Board made an actual, conscious, and considered collective policy decision. See id. at 984. Plaintiffs allege that board defendants "failed or refused to take any meaningful action" against the named defendants despite knowledge of the incident and the receipt of numerous statements of witnesses and complaints. (Compl. at 12). The complaint asserts that board defendants purposefully refused to discipline the other defendants involved in the incident. However, "claims of improper evaluation cannot divest a discretionary policy decision of its immunity." Caldwell, 10 Cal. 4th at 984. Because board defendants had discretion regarding the implementation of disciplinary action, and because the complaint alleges that board defendants made a purposeful decision not to discipline the defendants involved in the incident, board defendants are entitled to immunity pursuant to § 820.2.
Plaintiffs' seventh claims for relief also alleges that board defendants were negligent "in the hiring, training, and supervision" of defendants involved in the June 14 incident. Specifically, plaintiffs point to board defendants' hiring of Bagley because she "had been terminated from her previous job . . . for 'abuse' or other improper conduct." (Compl. at 12). A board's decision to hire a person is a basic policy decision entitled to immunity. See Caldwell, 10 Cal. 4th at 983. Further, the complaint alleges that board defendants were aware that Bagley had been terminated from her previous job for "abuse" or other misconduct "prior to and/or after hiring" her. (Compl. at 12). A fair reading of this allegation asserts that board defendants made a purposeful decision to hire defendant Bagley with knowledge of the relevant risks. Therefore, board defendants are entitled to immunity pursuant to 820.2. Defendant's motion is GRANTED with prejudice for any state tort claims arising out of allegations regarding these decisions.
However, to the extent that plaintiffs may raise claims in an amended complaint that board defendants failed to perform any mandatory duties, § 820.2 does not apply. Under this section, board defendants are not immune from claims that allege breach of a mandatory duty.
C. Failure to State a Claim
Plaintiffs' claim of negligence against board defendants alleges the "failure to prevent or stop the June 14, 2004 abuse" of plaintiff Adam Kelly. (Compl. at 12). Plaintiffs have not pled facts sufficient to support a claim against the board defendants in this regard. Plaintiffs do not allege that board defendants were present during the June 14 incident or in any position to prevent or stop the alleged abuse. Therefore, there is no cognizable claim based upon this allegation. Board defendants' motion to dismiss is GRANTED with leave to amend.
D. Individual Liability for Discrimination
All individual defendants argue that plaintiffs' fourth and fifth claims, which allege discrimination on the basis of disability in violation of the Americans with Disabilities Act ("ADA") and California law and for discrimination on the basis of race, ethnicity, or national origin in violation of their civil rights, should be dismissed where there is no individual liability imposed by statute.
1. Discrimination on the Basis of Disability
Defendants argue that individual employees are not liable for discrimination under the ADA. Plaintiffs bring their claim under 42 U.S.C. § 12132 which provides that:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
A potential defendant under the statute is any "public entity" which includes, among others, "any department, agency, special purpose district, or other instrumentality of a State . . . or local government." Id. Individuals are not proper defendants under Title II of the ADA. See Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999); Becker v. Odoc, 170 F. Supp. 2d 1061, 1066 (D. Or. 2001). However, individuals may be sued in their official capacities under the ADA because suing an individual in his official capacity is in essence the same as suing the entity itself. Becker, 170 F. Supp. 2d at 1066 (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
Because the complaint does not clearly state the capacity in which plaintiffs are suing defendants, the court will interpret the complaint as asserting liability against the defendants in both their individual and official capacities. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (citingShoshone-Bannock Tribes v. Fish Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994); Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 n. 16 (9th Cir. 1994)). To the extent that plaintiffs allege claims against defendants in their personal capacities, defendants' motion to dismiss is GRANTED with prejudice. To the extent the plaintiffs allege claims against defendants in their official capacities, defendants' motion to dismiss is DENIED.
Plaintiffs assert that their claims against individual defendants are also based upon the retaliation provision of the ADA. Specifically, plaintiffs allege that "both Adam and other family members and/or relatives were ostracized, harassed, threatened, and/or retaliated against" for "publicizing, complaining about, and/or seeking appropriate disciplinary and or other action" for Adam's alleged mistreatment motivated by his disability. (Compl. at 9). Section 12203(a) of the ADA provides that:
Defendants contend that plaintiffs' fourth claim for relief does not mention retaliation. This statement belies that contention. While plaintiffs' complaint is in many other aspects insufficient to put defendants on notice of the claims against them, plaintiffs' allegations based upon the retaliation provisions of the ADA are sufficient to put defendants on notice of the claims against them as well as the factual basis for that claim. Therefore, the allegations satisfy the liberal notice pleading standard. See Fed.R.Civ.Proc. 8.
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
Defendants contend that individuals are not proper defendants for retaliation claims brought under the ADA. Plaintiffs contend that the "plain language" of the retaliation provision extends liability to any person, including persons or entities not otherwise liable under the ADA. While the Ninth Circuit has not addressed this issue, other circuit courts as well as several district courts within the Ninth Circuit have dealt with analogous cases. See e.g., Baird v. Rose, 192 F.3d 462 (4th Cir. 1999); Hiller v. Brown, 177 F.3d 542 (6th Cir. 1999); Van Hulle v. Pacific Telesis Corp., 124 F. Supp. 2d 642 (N.D. Cal. 2000); Stern v. Cal. State Archives, 982 F. Supp. 690 (E.D. Cal. 1997); Ostrach v. Regents of the Univ. of Cal., 957 F. Supp. 196 (E.D. Cal. 1997).
In Ostrach, the plaintiff filed a claim of retaliatory discharge against his employer, his supervisor, and other employees. 957 F. Supp. at 197. The court held that because there was no binding Ninth Circuit precedent, the issue of individual liability for retaliation claims was a matter of statutory construction. Id. at 200. The court stated that unlike § 12112 which refers to liability of an "employer," § 12203 refers to liability of a "person." Id. Therefore, the court held that the plaintiff could sue the individual defendants under the anti-retaliation provision of the ADA. Id.
However, virtually all other courts have disagreed withOstrach, holding that individuals are not liable under the retaliation provision. See Baird, 192 F.3d 462; Hiler 177 F.3d 542; Van Hulle, 124 F. Supp. 2d 642; Stern, 982 F. Supp. 690. These courts have held that in light of the overall structure of the ADA, Congress did not intend to create individual liability under the retaliation provision. Id.
The focus of the analysis by almost all courts that have addressed this issue is the availability of remedies to the plaintiff from individual defendants. See Van Hulle, 124 F. Supp. 2d at 646 (public accommodations context); Stern, 982 F. Supp. at 693 (employment context) ("[T]he question should be, what remedies did Congress provide an aggrieved person for workplace retaliation."). Where Congress has explicitly provided remedies, there is no need to imply remedies. Stern, 982 F. Supp. at 694 (citing Franklin v. Gwinnett County Public School, 503 U.S. 60 (1992)).
There is no need to imply remedies in this case because Congress expressly provides remedies for public services retaliation claims. Subsection 12203(c) of the ADA outlines the remedies available to an aggrieved person by referring the individual to the remedial sections of the appropriate subchapter. Where, as in this case, the plaintiff alleges retaliation in the context of public services, the remedies available are outlined in section 12133. See 42 U.S.C. § 12203(c). Section 12133, in turn, refers such claims to the remedial provisions of section 505 of Rehabilitation Act of 1973. 29 U.S.C. § 794(a). The remedial provisions of section 505 of the Rehabilitation Act provide that the remedies are those found in Title VII, 42 U.S.C. § 2000e, or those found in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. 29 U.S.C. § 794(a). Title VII does not provide a remedy against individual defendants. See Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir. 1995); Stern, 982 F. Supp. at 693. Therefore, because there is no remedy under the ADA for claims brought against individual defendants in the public services context, individual defendants cannot be held liable for retaliation in violation of the ADA.
Title VI is not applicable because plaintiffs' claims do not involve a school district or a school district's programs. 42 U.S.C. § 2000d.
As discussed above, the court interprets the complaint as asserting liability against the defendants in both their individual and official capacities. To the extent that plaintiffs allege claims against defendants in their personal capacities, defendants' motion to dismiss is GRANTED with prejudice. To the extent the plaintiffs allege claims against defendants in their official capacities, defendants' motion to dismiss is DENIED.
Plaintiffs' fourth claim for relief also asserts liability under California law. However, plaintiffs' complaint does not contain any statutory provisions upon which they base their claim. The Federal Rules of Civil Procedure require that a pleading provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a); see Conley v. Gibson, 355 U.S. 41, 47 (1957) ("[A]ll the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."). The purpose of Rule 8 "is that the adversary party or parties have sufficient notice to prepare their defense and the court is sufficiently informed to determine the issue presented." Philadelphia Dressed Beef Co. v. Wilson Co., 19 F.R.D. 198, 201 (E.D. Pa. 1956). Because the court cannot discern the basis for plaintiffs' state law claims based upon disability discrimination, pursuant to Rule 8(a), the court dismisses plaintiffs' complaint for failure to state the basis for their claims with leave to amend.
2. Discrimination on the Basis of Race, Ethnicity, or National Origin
Plaintiffs' fifth claim for relief alleges that the conduct of defendants was motivated by the race, ethnicity, and/or national origin of plaintiff Ralphelia Grandinetti in violation of the civil rights of plaintiffs. The claim presents a cognizable factual basis for claim of discrimination. However, the court cannot discern the basis for plaintiffs' claims. It is unclear whether plaintiffs assert violations of state law, federal law, or both; it is also unclear what statutory basis plaintiffs rely upon in bringing these claims. Because the court cannot discern the basis upon which plaintiffs bring their fifth claim for relief, pursuant to Rule 8(a), the court dismisses plaintiffs' complaint for failure to state the basis for their claims with leave to amend.
E. Punitive Damages
Both sides agree that punitive damages are not available against a public employee in his official capacity pursuant to Government Code § 818. Cal. Gov't Code § 818 (West 2005). However, defendants argue that because the alleged conduct of the individual defendants occurred while they were acting as employees or agents of the District, a public entity, Government Code § 818 also prohibits a claim of punitive damages against the individual defendants. This section does not preclude a claim of punitive damages against public employees sued in their individual capacities. See Gallo v. Board of Regents of the University of California, 916 F. Supp. 1005, 1009-10 (S.D. Cal. 1995); Runyon v. Superior Court of Riverside County, 187 Cal. App. 3d 878, 881 (1986). "A public employee may be liable for punitive damages like a private person but unlike a public entity which is specifically immune." Runyon, 187 Cal. App. 3d at 881. Therefore, defendants' motion to strike plaintiffs' claim for punitive damages against the individual defendants is DENIED.
F. Leave to Amend
Plaintiffs seek leave to amend their complaint to cure any material defects as well as to add claims of civil rights violations pursuant to 42 U.S.C. § 1983. Pursuant to Rule 15(a), "leave [to amend] is to be freely given when justice so requires." "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997). There is no indication that plaintiffs' amendment would prejudice the opposing party, is sought in bad faith, is futile, or would create undue delay. Therefore, plaintiffs are granted leave to amend their complaint.
Plaintiffs may not amend their complaint where the court has granted defendants' motion to dismiss with prejudice because amendment of these claims would be futile.
CONCLUSION
For the foregoing reasons, defendants' motions are GRANTED in part and DENIED in part. Plaintiffs are granted fifteen (15) days from the date of this order to file a first amended complaint in accordance with this order. Defendants are granted thirty (30) days from the date of service of plaintiffs' first amended complaint to file a response thereto.
IT IS SO ORDERED.