Walters v. County of Contra Costa

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 WALTER L. WALTERS, Case No. 19-cv-00702-DMR

8 Plaintiff, ORDER ON DEFENDANTS' MOTION

FOR SUMMARY JUDGMENT

9 v.

Re: Dkt. No. 86

10 COUNTY OF CONTRA COSTA, et al.,

11 Defendants.

12 Plaintiff Walter L. Walters filed a civil rights action claiming that he suffered

13 constitutional violations in connection with his December 2017 removal from Contra Costa

14 Regional Medical Center (“CCRMC”), where he had been working as a temporary physician.

15 Defendants County of Contra Costa (“the County”), Deputy Sheriff Brian Cain, and Felicia I.

16 Tornabene now move for partial summary judgment. [Docket No. 86.] The court held a hearing

17 on September 10, 2020. For the following reasons, Defendants’ motion is granted.

18 I. REQUEST FOR JUDICIAL NOTICE

19 Walters asks the court to take judicial notice of three documents pursuant to Federal Rule

20 of Evidence 201. [Docket No. 103.] These documents include two reports CCRMC submitted

21 about Walters to the Medical Board of California dated January 9, 2018 and February 6, 2018 (the

22 “805 reports”); Cain’s January 1, 2018 report of the incident at issue in this lawsuit; and

23 CCRMC’s 2015 Medical Staff Bylaws. [Docket Nos. 97-4 (805 reports), 97-8 (Sheriff’s Report),

24 97-12 (Bylaws).]

25 Under Rule 201, a court may take judicial notice of “an adjudicative fact if it is ‘not subject

26 to reasonable dispute.’” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018)

27 (quoting Fed. R. Evid. 201(b)). A fact is “not subject to reasonable dispute” if it is “generally

1 reasonably be questioned.” Fed. R. Evid. 201(b). While Defendants do not object to Walters’s

2 request for judicial notice, Walters does not identify the facts he asks the court to judicially notice

3 from the documents and does not explain how any such facts are “not subject to reasonable

4 dispute.” The Ninth Circuit has instructed that if a court takes judicial notice of a document, it

5 must identify the specific fact or facts it is noticing from the document. Khoja, 899 F.3d at 999.

6 To the extent that Walters seeks judicial notice of the existence of the two complaints submitted

7 by CCRMC and the representations made in the complaints, as well as the existence of Cain’s

8 report and the representations made therein, the request is granted. It is otherwise denied as to any

9 assertions of fact within the documents. See id. The court also takes judicial notice of the

10 existence of the CCRMC Medical Staff Bylaws. The request for judicial notice is otherwise

11 denied.

12 II. EVIDENTIARY OBJECTIONS

13 A. Walters’s Objections to Defendants’ Evidence1

14 1. Tornabene’s Declaration

15 Walters objects to paragraph 11 of Tornabene’s declaration, which refers to Walters’s

16 “impairment” and “the fact of his impairment.” [See Docket No. 108-1 (Tornabene Decl., Aug. 6,

17 2020) ¶ 11.] According to Walters, Tornabene admits that her statements about Walters are based

18 “on what she heard from others, not on her personal observation”; therefore, he argues, the

19 statements are “inadmissible hearsay for the truth of the matters stated.” Opp’n 14. He also

20 argues that the statements about his alleged impairment contradict her own statement in her

21 declaration that that to her knowledge, “[Walters] provided competent patient care during his time

22 at CCRMC in 2017.” Id. (quoting Tornabene Decl. ¶ 16).

23 The objections are overruled. Contrary to Walters’s argument, Tornabene’s statements

24 about Walters’s condition on the date in question, December 29, 2017, are not based solely on

25

1 Walters also objected to the declarations of Tornabene, Cain, and Brandon Garry on the grounds

26

that they did not contain the affirmation that the contents thereof are “true and correct.” Opp’n 14.

The parties stipulated that Defendants could submit corrected versions of the declarations to

27

address that omission, and Defendants timely filed the corrected declarations. [Docket Nos. 108-

1 what she heard from others. Tornabene explains that “[b]ased on [her] observations,” Walters

2 “appeared to be either physically or mentally impaired” on the date in question. Tornabene Decl.

3 ¶ 13. Moreover, as to Tornabene’s descriptions of others’ observations of Walters, these

4 descriptions are not offered for their truth, but are instead offered to show the effect on the

5 listener, i.e., Tornabene’s state of mind. Therefore, they are not hearsay. See Fed. R. Evid. 801(c)

6 (defining hearsay as a statement that “a party offers in evidence to prove the truth of the matter

7 asserted in the statement”). As to Walters’s argument that Tornabene’s statements are

8 contradictory, this argument goes to the weight of Tornabene’s statements, not their admissibility.

9 2. Garry’s Declaration

10 Walters also objects to statements in Lieutenant Brandon Garry’s declaration. Garry, a

11 lieutenant with the Contra Costa County Sheriff’s Office (“CCCSO”), states that he is the Training

12 Manager for the CCCSO and that he is personally familiar with the written policies and

13 procedures and customs and practices of the CCSO regarding deputy training. [Docket No. 108-2

14 (Garry Decl., Aug. 4, 2020) ¶¶ 1-3.] He describes the police academy training and pre-

15 employment requirements for CCCSO deputies, as well as the required training during the

16 probationary period and in-service, ongoing training. Id. at ¶¶ 4-7. Walters objects to the

17 paragraphs regarding training as “largely inadmissible opinion or hearsay because he purports to

18 know the actual training experiences of every Sheriff’s deputy in Contra Costa County for all time

19 and all places,” but cites no data and instead attributes his knowledge to his familiarity with

20 policies, procedures, customs, and practices. Opp’n 14-15.

21 Defendants offer Garry’s statements in support of their motion for summary judgment on

22 Walters’s Monell claim, to the extent that it is based on the County’s failure to train CCCSO

23 deputies. As discussed below, Walters clarified in his opposition that he is not bringing a Monell

24 claim based on an alleged failure to train. Accordingly, Walters’s objections to Garry’s

25 declaration are denied as moot.

26 B. Defendants’ Objections to Evidence

27 1. Expert Declarations

1 that he is an expert in “the administrative standards of care applicable to all hospitals in the United

2 States,” including CCRMC. [Docket No. 97-11 (Shorr Decl., Aug. 2, 2020) ¶ 5.] In his

3 declaration, Shorr offers his opinion that Defendants’ motion for summary judgment should be

4 denied for several reasons, including that “[t]here are significant trier of fact issues that mitigate

5 against granting” the motion. Id. at ¶ 23. Defendants argue that Walters did not timely disclose

6 Dr. Shorr as an expert and that they learned of Dr. Shorr and his opinions for the first time in

7 Walters’s opposition brief which was filed on August 3, 2020, nearly six weeks after the close of

8 expert discovery. They argue that Walters should be precluded from offering his testimony

9 pursuant to Federal Rule of Civil Procedure 37(c).

10 Additionally, two days before the hearing on this motion, Walters filed an administrative

11 motion seeking leave to present the declaration of another expert, Dan Field, M.D., in support of

12 his opposition to the motion for summary judgment. [Docket No. 114.] Defendants filed an

13 opposition, again arguing that Walters did not disclose the expert by the expert disclosure

14 deadline. [Docket No. 115.]

15 Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as

16 required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply

17 evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is

18 harmless.” In turn, Rule 26(a)(2) provides that a party must disclose the identity of any expert

19 witness it may use at trial and that any such disclosure must be accompanied by a written report

20 setting forth a complete statement of the expert’s opinions. Fed. R. Civ. P. 26(a)(2)(A), (B). In

21 this case, the expert disclosure deadline was May 26, 2020, and expert discovery closed on June

22 23, 2020. [Docket No. 49.] At the hearing, Walters’s counsel explained that the late disclosures

23 occurred because he did not realize that Defendants would be filing a summary judgment motion.

24 This is factually incorrect, as Defendants have signaled since the inception of this case that such a

25 motion would be forthcoming. [See Docket No. 42 (Parties’ Initial Joint Case Management

26 Statement) 6 (“Defendants anticipate filing a motion for summary judgment.”).] In any event,

27 Plaintiff’s proffered reason is not substantially justified, and the late expert disclosures in the

1 objection to Dr. Shorr’s declaration is sustained and Walters’s administrative motion for leave to

2 present Dr. Field’s declaration is denied. Walters is precluded from offering their opinions in

3 connection with this motion or at trial.

4 2. Statements Attributed to Tornabene

5 Defendants next object to certain statements in Walters’s declaration that he attributes to

6 Tornabene. In Walters’s declaration, he states that an unnamed person in his staffing agency told

7 him “that Tornabene told Dr. Saadi that she . . . offered me a drug test and that I declined to take

8 it.” He also states that at an April 2, 2018 Medical Executive Committee (“MEC”) meeting, an

9 unidentified “female MEC member states . . . that Tornabene told the MEC that Tornabene asked

10 me to take a drug test and I had refused . . .” [Docket No. 97-2 (Walters Decl., Aug. 1, 2020) ¶¶

11 64, 65.]

12 Defendants also object to Exhibits E and F to Walters’s declaration. Walters states that

13 Exhibit E contains “relevant excerpts from the minutes of” the April 2, 2018 MEC meeting and

14 Exhibit F is a “true and correct transcript” he obtained of that meeting. Walters Decl. ¶¶ 63, 65,

15 Exs. E, F. According to Walters, Exhibit F contains a statement that Tornabene said that “they

16 wanted [Walters] . . . to get treatment and testing in the ER.” Walters Decl. ¶ 65, Ex. F at 26.

17 Defendants object to this evidence as hearsay. As noted, hearsay is a statement that “a

18 party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid.

19 802(c). Walters cites this evidence in his opposition to argue that “Tornabene falsely claimed that

20 she offered Plaintiff a drug test but Plaintiff refused to take it.” Opp’n 10. Therefore, Walters is

21 relying on this evidence to prove the truth of the matter, that is, that Tornabene said she offered

22 Walters a drug test, which he refused. The statements are hearsay and therefore inadmissible.

23 3. Statement About Hospital Protocol

24 Finally, Defendants object to the statement in Walters’s declaration that “[t]he hospital

25 protocol during this incident required it to test me for substance abuse.” See Walters Decl. ¶ 43.

26 Federal Rule of Evidence 602 provides that “[a] witness may testify to a matter only if evidence is

27 introduced sufficient to support a finding that the witness has personal knowledge of the matter.”

1 he is “aware that hospitals have a protocol requiring the testing for substance abuse of any

2 physician suspected of being under the influence while on duty.” Walters Decl. ¶ 43. This is

3 insufficient, as he does not establish the existence of any such protocol at CCRMC or any other

4 facts supporting his statement. Accordingly, the objection is sustained.

5 III. BACKGROUND

6 A. Factual Background

7 The following facts are undisputed, unless otherwise noted.

8 Walters, who is African American, is a board-certified anesthesiologist. [Docket No. 97-2

9 (Walters Decl., Aug. 1, 2020) ¶¶ 4, 6.] In October 2017, he accepted a two-month placement from

10 a staffing company as a temporary or “locum tenens” anesthesiologist at Contra Costa Regional

11 Medical Center (“CCRMC”), a County hospital. [Docket No. 97 (Cowan Decl., Aug. 3, 2020) ¶

12 3, Ex. A (Walters Dep.) Ex. 1.] The assignment ran from November 1, 2017 through December

13 29, 2017. See id.

14 At the time he began working at CCRMC, Walters was experiencing a number of

15 symptoms related to his medical conditions. These conditions include rheumatoid arthritis, which

16 causes swelling, pain, and sensitivity in his ankles, wrists, and hands. He walked with “an unusual

17 gait/limp” following ankle surgery which required the installation of metal screws. Walters wears

18 dentures “which sometimes cause [his] speech to be less clear than otherwise” and he has a

19 diagnosed speech impediment. Additionally, he has inflammatory bowel disease (“IBD”), which

20 causes intermittent bouts of diarrhea and dehydration. Walters Decl. ¶ 12. Being on his feet for

21 long periods of time tires Walters and aggravates his rheumatoid arthritis and ankle pain. Id. at ¶

22 13.

23 Walters states he agreed to work eight-hour shifts for at least the first month of his

24 assignment, but that after starting at CCRMC he learned that the hospital did not offer that

25 schedule. Walters Decl. ¶ 10. After working two 12-hour shifts in his first week, he spoke with

26 Defendant Tornabene, the then-Hospital Medical Director of CCRMC, about his medical

27 conditions. Id. at ¶ 14. As Medical Director, Tornabene’s responsibilities included supervising

1 108-1 (Tornabene Decl., Aug. 6, 2020) ¶ 2.] Walters explained to her that “the rheumatoid

2 arthritis, IBD, compromised ankle, and psoriasis made it exceedingly wearying for [him] to work

3 shifts of more than 8 hours at a time,” and that he “would be ‘walking funny’ if [he] worked all of

4 those hours.” Walters Decl. ¶ 14. According to Walters, Tornabene “apologized and promised to

5 try to resolve the problem.” Id.

6 On December 29, 2017, Walters’s final day at CCRMC, Walters was scheduled to work

7 from 7:00 a.m. until 7:00 p.m. On the previous day he worked a 24-hour shift. Although his last

8 case on December 28, 2017 was at 10:00 p.m., he remained on call throughout the night. Walters

9 Dep. 102-03; Walters Decl. ¶ 26. At approximately 3:00 p.m. on December 29, 2017, Walters

10 went to the “call room” on the Labor & Delivery floor to rest after a procedure. Walters Decl. ¶

11 26. A call room is a private room with a bed that is available for doctors’ use to rest or sleep while

12 they are working and not treating patients. Tornabene Decl. ¶ 7. Walters had used the room on

13 several occasions to sleep or rest while on call. Walters Decl. ¶ 15. That afternoon, before going

14 to sleep in the call room, Walters removed his dentures and removed his pants due to his psoriasis

15 and pruritis. Id. at ¶ 16, 38. At some point Walters was awakened by a knock on the call room

16 door. According to Walters, when he opened the door, “a nurse manager . . . asked if [he] was

17 ok.” Id. at ¶ 26. He told her that he had been on call the night before “and was resting” and “[s]he

18 said, ok and then left.” Id.

19 At approximately 4:00 p.m., Cita Richeson, a nurse manager at CCRMC, contacted

20 Tornabene by phone. Tornabene, who was not at the hospital, also spoke with Dr. Judith Bliss,

21 the chair of the Obstetrics and Gynecology Department. Tornabene Decl. ¶ 3. Tornabene states

22 that Richeson and Bliss informed her that Walters “appeared to be mentally and/or physically

23 impaired at work,” and that they “were concerned about his ability to provide safe and competent

24 patient care.” Id. Tornabene then spoke with Jeanette Black, the Director of Inpatient Nursing at

25 CCRMC. Black informed Tornabene that she “contacted Dr. Walters in person in the presence of”

26 Defendant Cain, and that “Dr. Walters did not appear ‘right’ in terms of his manner or

27 appearance.” Id. at ¶ 4. Cain is a deputy sheriff with the Contra Costa County Sheriff’s Office.

1 CCRMC. [Docket No. 108-3 (Cain Decl., Aug. 6, 2020) ¶ 2.] His duties included providing

2 security for CCRMC staff and patients. Cain Decl. ¶ 4.

3 After speaking with Richeson, Bliss, and Black by phone, Tornabene drove to CCRMC.

4 When she arrived, she spoke with Bliss, Black, and two nurses who had interacted with Walters

5 that day. They told her the following about Walters:

6 a. he appeared to have difficulty completing an epidural procedure;

7 b. one of his patients complained to a nurse that he was “acting funny” and appeared

8 to be “drunk”;

9 c. he was slow to respond to pages from the nurses;

10 d. he was slurring his words;

11 e. he confused one medication with another;

12 f. he brought food into a patient’s room and left it on the anesthesia cart;

13 g. he had tape residue on his inner arm and a visible puncture mark, and when asked

14 about it, responded that he was “attacked by a Christmas tree”; and

15 h. he dropped a pair of underwear at the nurses’ station.

16 Tornabene Decl. ¶ 6.2 She then went to the call room where Walters was resting, accompanied by

17 Bliss, Cain, and Cain’s supervisor Angela Prasad. Id. at ¶ 7.

18 Cain states that at some point on December 29, 2017, he was “contacted by someone who

19 worked in management at CCRMC asking [him] to act as ‘security stand by’ while the hospital

20 relieved a doctor . . . who they suspected might be under the influence of drugs or alcohol.” Id. at

21 ¶ 3. He does not recall who contacted him. Id. According to Cain, his role was “to provide

22 security for hospital management for a personnel matter.” Id. at ¶ 4.

23 Tornabene knocked on the door of the call room. Walters opened the door as he was lying

24 in bed, and Tornabene could see that he was naked from the waist down. Tornabene Decl. ¶¶ 7, 8.

25 Cain then asked Walters to step outside. Id. at ¶ 9. Walters testified that when he saw Cain, he

26

2 At his deposition, Walters did not dispute that on December 29, 2017 his speech was slurred, he

27

dropped a pair of underwear at the nurses’ station, an observer could have concluded that he was

1 thought, “[t]hey think I’m on drugs,” and so told him, “I don’t do drugs.” Walters Dep. 129, 131.

2 He then told Cain that he would come out as soon as he was dressed and closed the door. Walters

3 Decl. ¶ 30; Walters Dep. 131-32. After a minute or two, as Walters was finishing getting dressed,

4 Cain banged on the door, entered the room, and in a “very aggressive” manner shouted at Walters,

5 “[c]ome on, let’s go!” Id. at 132-33, 146; Walters Decl. ¶ 31. Walters states that he was “so

6 terrified of being shot or assaulted” that he offered to let Cain stay in the room while he dressed.

7 Cain declined and went back into the hallway. Walters Decl. ¶ 31; Walters Dep. 133-34. After

8 getting dressed, Walters came into the hallway where Tornabene, Cain, Prasad, two nurses, and an

9 unidentified uniformed officer were standing. Id. at 135. According to Walters, Tornabene told

10 him that he was being relieved because he looked like he was having difficulty walking and had

11 slurred speech. Id. at 137. She also told him that “[his] services were no longer needed,” that he

12 was not allowed to drive himself home, and that the hospital would pay for him to take a taxi

13 home. Walters Decl. ¶ 36.

14 When she finished speaking, Walters pulled up his pants leg and “showed them the

15 psoriatic arthritis” and his swollen hands and wrist and pulled out his denture to show to her.

16 Walters Dep. 138; Walters Decl. ¶¶ 38, 39. He also explained that he has screws in his right ankle

17 from surgery and showed them his surgery scar, and informed them that the pain in his ankle

18 causes him to limp when he has to walk or stand for long periods. Walters Decl. ¶ 39. Walters

19 told Tornabene that he did not need a taxi because he had a car at the hospital, but Tornabene did

20 not respond. Id. at 162-63. Walters testified that he then told Tornabene, “[i]f you’re going to go

21 this route, . . . let’s go to the [emergency room], get me a drug test, and then I will sue.” Id. at

22 138, 141, 143; Walters Decl. ¶ 42. According to Walters, he continued to state that he was not

23 under the influence of drugs but Tornabene ignored him and “walked off.” Walters Dep. 143-44;

24 Walters Decl. ¶ 42.

25 Tornabene states that when Walters first came into the hallway, he “appeared to have

26 difficulty walking initially.” Tornabene Decl. ¶ 9. She informed Walters that “based on

27 observations of his behavior and demeanor, staff members were concerned about his well-being

1 drugs or alcohol,” and “[that he was] tired from working long hours, in pain because of

2 rheumatoid arthritis, and slurring his speech because of dentures.” Id. at ¶ 10. According to

3 Tornabene, the reasons for Walters’s alleged impairment “were not important to me at that time”;

4 she states that her “primary goal was removing him from the hospital to protect patients because,

5 based on the information [she] received, [she] did not believe he was capable of safely caring for

6 his patients.” Id. at ¶ 11. She states that she was also concerned about his ability to safely drive

7 himself home. Id. Despite this, she did not believe that he was “gravely disabled or unable to care

8 for himself,” and so did not believe that there were grounds to force him to seek medical or mental

9 health care. Id. at ¶ 13. According to Tornabene, she did not accuse Walters of being under the

10 influence of drugs or alcohol. Id. at ¶ 12.

11 Cain then accompanied Walters to the locker room where he changed out of his scrubs and

12 into his clothes. Walters was unable to find his keys or cell phone and the two returned to the call

13 room together so that he could look for them. While together in the call room, Walters asked Cain

14 to assist him in looking through his bag for his keys and phone so that Cain could see “that there

15 was no drug paraphernalia” in the bag. Walters Dep. 144-47. After failing to find his keys and

16 phone, Walters then took the elevator with Cain and the other uniformed officer to the lobby of the

17 hospital and walked outside to look in his car. Cain followed him to his car. Id. at 148-49. Once

18 they reached the car, Walters and Cain searched for Walters’s keys. According to Walters, he told

19 Cain that he was going to sit in the driver’s seat and press the button to start the engine; if the car

20 started, explained Walters, they would know that the key was in the car. Id. at 151. Cain walked

21 over to the driver’s side door and watched Walters press the button. Walters testified that the car

22 started, and Cain “grabbed [him] by [his] wrist,” twisted it, and performed a “martial arts

23 maneuver[ ].” Id. at 152, 153-54. Walters screamed in pain, tried to extract himself from the hold,

24 and Cain accused him of trying to flee. Id. at 153, 156. Cain then pulled him out of the car and

25 released his hold on Walters. Id. at 157. After Cain located the car key under the driver’s seat,

26 Walters and Cain walked back to the lobby. Id. at 158.

27 Walters then waited with Cain, Prasad, and the other uniformed officer in the lobby for the

1 drug test, or a sobriety test?” No one responded, and Walters informed them that he was being

2 kidnapped. Walters Dep. 159; Walters Decl. ¶ 46. According to Walters, none of the officers

3 took any steps “to investigate Tornabene’s statements about [him]” or asked him whether he had

4 consumed any drugs or alcohol that day. Walters Decl. ¶ 46.

5 Cain states that he did not take any steps to determine whether Walters was under the

6 influence of drugs or alcohol because he “was not investigating potential criminal conduct” by

7 Walters. Cain Decl. ¶ 7. According to Cain, Walters appeared to be “mentally and/or physically

8 impaired” and did not appear to be able to safely drive a car. Id. at ¶ 5. Cain also states that he

9 did not make the decision to send Walters home in a taxi but that he agreed with that decision

10 based on his interaction with Walters. Cain Decl. ¶ 5.

11 A taxi arrived and Walters got into the taxi by himself. He testified that he understood

12 from the officers’ body language that “they would physically put [him] in the taxi if [he] refused

13 to get in.” The driver then drove him to his hotel. Walters Dep. 161-62; Walters Decl. ¶ 59.

14 Once there, a friend drove him back to the hospital where he retrieved his car and drove himself

15 home. Walters Dep. 163.

16 Later that evening, Walters took a home drug test, which was negative. Id. at 189-91. On

17 January 25, 2018, Walters had his urine and a hair follicle tested. The test, which detects drug use

18 as far back as 90 days before the test, came back negative. Walters Decl. ¶ 62.

19 On January 9, 2018, Tornabene submitted a Health Facility/Peer Review Reporting Form

20 (“805 Report”) to the Medical Board of California stating that Walters’s employment had been

21 terminated or revoked. In an attachment she wrote, “On 12/29/2017 the subject was exhibiting

22 concerning behaviors.” Walters Decl. ¶ 61, Ex. D. In a supplemental 805 Report dated February

23 6, 2018, a CCRMC representative, Taiyun Roe, M.D., wrote that “[m]ultiple witnesses observed

24 Dr. Walters to be acting in an unusual way that suggested he was mentally and physically

25 incapable of providing safe care.” Roe provided the following details:

26 [Walters] had difficulty walking and talking, had trouble responding

in an appropriate fashion, seemed unaware of aspects of his

27 surrounding[s] (such as being half-naked or having underwear at his

1 Walters Decl. Ex. D.

2 B. Procedural History

3 Walters filed a complaint against the County, Cain, Tornabene, and Prasad in February

4 2019 and later filed first and second amended complaints. [Docket Nos. 17, 28.] On October 15,

5 2019, the court granted in part and denied in part Defendants’ motion to dismiss the second

6 amended complaint (“SAC”). Walters v. Cnty. of Contra Costa, No. 19-cv-00702-DMR, 2019

7 WL 5191099 (N.D. Cal. Oct. 15, 2019). In relevant part, the court concluded that Defendants

8 were entitled to qualified immunity on Walters’s claim that the order by Cain and Prasad to leave

9 the hospital, unaccompanied by force, constituted an unlawful seizure within the meaning of the

10 Fourth Amendment. Id. at *6-8. The court thus dismissed the claim. See id. The court also

11 denied Defendants’ motion to dismiss Walters’s claim that requiring him to depart the hospital in a

12 taxi without justification violated the Fourth Amendment on the basis of qualified immunity,

13 holding that the denial was “without prejudice to Defendants’ renewing the defense on a full

14 record at summary judgment.” Id. at *9.

15 In February 2020, the parties stipulated to dismiss all claims against Prasad. [Docket No.

16 73.]

17 Walters alleges the following claims in the fifth amended complaint (“5AC”), which is the

18 operative complaint: a 42 U.S.C. § 1983 claim for unreasonable seizure in violation of the Fourth

19 Amendment, based on Cain ordering Walters to leave the hospital, restraining Walters’s

20 movement in the parking lot, forcing him to take a taxi to his hotel, and excessive use of force,

21 against Cain and the County; 2) assault and battery against Cain; 3) negligent infliction of

22 emotional distress against Tornabene, Cain, and the County; 4) negligence against Cain and the

23 County; and 5) defamation against Tornabene and the County. [Docket No. 71.]

24 Defendants now move for summary judgment on all claims except Walters’s claims for

25 excessive force and assault and battery against Cain. [Docket No. 86.]

26 IV. LEGAL STANDARD

27 A court shall grant summary judgment “if . . . there is no genuine dispute as to any material

1 of establishing the absence of a genuine issue of material fact lies with the moving party, see

2 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the court must view the evidence in the

3 light most favorable to the non-movant. See Scott v. Harris, 550 U.S. 372, 378 (2007) (citation

4 omitted). A genuine factual issue exists if, taking into account the burdens of production and

5 proof that would be required at trial, sufficient evidence favors the non-movant such that a

6 reasonable jury could return a verdict in that party’s favor. Anderson v. Libby Lobby, Inc., 477

7 U.S. 242, 248. The court may not weigh the evidence, assess the credibility of witnesses, or

8 resolve issues of fact. See id. at 249.

9 To defeat summary judgment once the moving party has met its burden, the nonmoving

10 party may not simply rely on the pleadings, but must produce significant probative evidence, by

11 affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that

12 a genuine issue of material fact exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809

13 F.2d 626, 630 (9th Cir. 1987) (citations omitted). In other words, there must exist more than “a

14 scintilla of evidence” to support the non-moving party’s claims, Anderson, 477 U.S. at 252;

15 conclusory assertions will not suffice. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738

16 (9th Cir. 1979). Similarly, “[w]hen opposing parties tell two different stories, one of which is

17 blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

18 adopt that version of the facts” when ruling on the motion. Scott, 550 U.S. at 380.

19 V. DISCUSSION

20 A. Section 1983 Claims

21 1. Claims Against the County

22 Walters brings a 42 U.S.C. § 1983 claim for unreasonable seizure in violation of the Fourth

23 Amendment against the County. He alleges that “[t]he County of Contra Costa had a duty to train

24 and supervise their law enforcement personnel to follow the policies and procedures put in place

25 with regard to individuals who are suspected of being intoxicated by either alcohol or drugs.”

26 5AC ¶ 51.

27 Defendants argue that the claim fails as a matter of law because Walters cannot establish a

1 York, 436 U.S. 658 (1978), based upon a single alleged constitutional violation. See Christie v.

2 Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional deprivation ordinarily is

3 insufficient to establish a longstanding practice or custom.”). It also argues that the County

4 adequately trains and supervises its duties. See Garry Decl. ¶¶ 4-7.

5 In response, Walters clarifies that his claim against the County is not based on its alleged

6 failure to train. Opp’n 12. Instead, he asserts his claim against the County is based on Cain’s

7 alleged “fail[ure] to follow County policies and procedures to determine whether [Walters] was

8 under the influence . . .” Id. At the hearing, Walters’s counsel confirmed that this claim (as well

9 as the negligent infliction of emotional distress claim, discussed below) seeks to hold the County

10 liable for Cain’s actions on a theory of respondeat superior. See id. at 18 (arguing that Cain’s

11 actions are “attributable to [the County]”).

12 A municipality may face section 1983 liability if it “‘subjects’ a person to a deprivation of

13 rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S.

14 51, 60 (2011) (quoting Monell, 436 U.S. at 692). However, the municipality may be held liable

15 “only for ‘[its] own illegal acts.’” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).

16 It cannot be held vicariously liable for its employees’ actions. Id. (citations omitted). To establish

17 municipal liability, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused

18 their injury.” Id. (quoting Monell, 436 U.S. at 691). “The ‘official policy’ requirement was

19 intended to distinguish acts of the municipality from acts of employees of the municipality, and

20 thereby make clear that municipal liability is limited to action for which the municipality is

21 actually responsible.” Pembaur, 475 U.S. at 479-80. Official municipal policy includes “the

22 decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so

23 persistent and widespread as to practically have the force of law.” Connick, 563 U.S. at 61

24 (citations omitted). Such policy or practice must be a “moving force behind a violation of

25 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing

26 Monell, 436 U.S. at 694).

27 In this case, Walters seeks a finding of liability against the County based on Cain’s own

1 liable under section 1983 for its employees’ actions. Connick, 563 U.S. at 60. Accordingly,

2 summary judgment is granted as to Walters’s section 1983 claim against the County.

3 2. Claims Against Cain

4 Walters’s section 1983 claims against Cain are based on three individual violations of the

5 Fourth Amendment: 1) forcing Walters to leave the hospital; 2) using force against Walters in his

6 car; and 3) forcing Walters to depart the hospital in a taxi instead of in his own car. 5AC ¶¶ 49,

7 52-53; Opp’n 15. As noted, Defendants do not seek summary judgment on Walters’s claim that

8 Cain used excessive force on Walters when they were in Walters’s car. Therefore, only the first

9 and third violations are at issue in this motion.

10 As to the first, Defendants argue that forcing Walters to leave the hospital was not a

11 seizure within the meaning of the Fourth Amendment, and that even if it was, Cain is entitled to

12 qualified immunity on the claim because it would not have been clear to a reasonable officer that

13 such conduct was unlawful. Mot. 8-9. The court has already dismissed this claim. In its October

14 15, 2019 order granting in part Defendants’ motion to dismiss the second amended complaint, the

15 court found that Defendants were entitled to qualified immunity on Walters’s claim that the order

16 by Cain and Prasad to leave the hospital, unaccompanied by force, constituted an unlawful seizure

17 within the meaning of the Fourth Amendment. Walters, 2019 WL 5191099, at *6-8. As pleaded

18 in the 5AC, which is the operative complaint, the Fourth Amendment claim against Cain is

19 substantially the same as it was pleaded in the second amended complaint. See 5AC ¶¶ 49-50, 52-

20 55. Therefore, Walters’s Fourth Amendment claim based on Cain’s participation in Tornabene’s

21 order to leave the hospital has already been dismissed.

22 As to the third violation, which alleges that Cain unlawfully forced Walters to depart the

23 hospital in a taxi, Defendants move for summary judgment on the ground that Cain is entitled to

24 qualified immunity.

25 Section 1983 creates a civil cause of action against a “person who, under color of any

26 statute, ordinance, regulation, custom, or usage, of any State” deprives another person of any of

27 their “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.

1 secured by the Constitution or laws of the United States was violated and (2) that the alleged

2 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

3 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

4 “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the

5 Government.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S.

6 1, 9 (1968)). “A person is seized by the police and thus entitled to challenge the government’s

7 action under the Fourth Amendment when the officer, ‘by means of physical force or show of

8 authority,’ terminates or restrains his freedom of movement, through means intentionally applied.”

9 Brendlin v. California, 551 U.S. 249, 254 (2007) (internal citations and quotation omitted;

10 emphasis removed); see also United States v. Smith, 633 F.3d 889, 892 (9th Cir. 2011) (holding

11 that “a person is not ‘seized’ within the meaning of the Fourth Amendment unless “by means of

12 physical force or show of authority, his freedom of movement is restrained.’” (quoting United

13 States v. Mendenhall, 446 U.S. 544, 553 (1980)). “[I]n order to determine whether a particular

14 encounter constitutes a seizure, a court must consider all the circumstances surrounding the

15 encounter to determine whether the police conduct would have communicated to a reasonable

16 person that the person was not free to decline the officers’ requests or otherwise terminate the

17 encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991). Under Terry and its progeny, a

18 temporary seizure is reasonable under the Fourth Amendment if law enforcement officers have

19 “reasonable suspicion”—that is, “articulable suspicion that a person has committed or is about to

20 commit a crime.” Florida v. Royer, 460 U.S. 491, 498 (1983).

21 “[Q]ualified immunity protects government officials ‘from liability for civil damages

22 insofar as their conduct does not violate clearly established statutory or constitutional rights of

23 which a reasonable person would have known.’” Moss v. U.S. Secret Serv., 675 F.3d 1213, 1222

24 (9th Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The qualified immunity

25 analysis involves two inquiries. First, taken in the light most favorable to the plaintiff, the court

26 must ask whether the facts alleged show that the officer’s conduct violated a constitutional right.

27 Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer is “no,” then the court need not inquire

1 could be made out on a favorable view of the parties’ submissions,” the court must examine

2 “whether the [constitutional] right was clearly established.” Id. The court may exercise its

3 discretion in deciding “which of the two prongs of the qualified immunity analysis should be

4 addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan,

5 555 U.S. 223, 236 (2009).

6 “The linchpin of qualified immunity is the reasonableness of the official’s conduct.”

7 Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1075 (9th Cir. 2011) (citation omitted). “The

8 relevant, dispositive inquiry in determining whether a right is clearly established is whether it

9 would be clear to a reasonable officer that his conduct was unlawful in the situation he

10 confronted.” Saucier, 533 U.S. at 202. “If the law did not put the officer on notice that his

11 conduct would be clearly unlawful, summary judgment based on qualified immunity is

12 appropriate.” Id. “A clearly established right is one that is ‘sufficiently clear that every

13 reasonable official would have understood that what he is doing violates that right.’” Mullenix v.

14 Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664

15 (2012)). The Supreme Court has cautioned that specificity in determining whether “the violative

16 nature of particular conduct is clearly established . . . is especially important in the Fourth

17 Amendment context, where the Court has recognized that it is sometimes difficult for an officer to

18 determine how the relevant legal doctrine . . . will apply to the factual situation the officer

19 confronts.” Mullenix, 136 S. Ct. at 308 (emphasis in original; quotation omitted). A court

20 determining whether a right was clearly established looks to “Supreme Court and Ninth Circuit

21 law existing at the time of the alleged act.” Community House, Inc. v. Bieter, 623 F.3d 945, 967

22 (9th Cir. 2010) (citing Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)). Finally, “[i]t is the

23 plaintiff who bears the burden of showing that the rights allegedly violated were clearly

24 established.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (internal

25 quotation marks and citation omitted).

26 Here, Defendants contend that Cain is entitled to qualified immunity, arguing that it would

27 not have been clear to a reasonable officer that “ensuring that a person showing signs of

1 Fourth Amendment.” Mot. 10. They argue that they have been unable to locate any controlling

2 authority that a law enforcement officer “violates the Fourth Amendment by participating in the

3 decision by hospital administration to order a physician who appears impaired not to drive himself

4 home.” Id.

5 Here, Cain states that an unidentified management person at CCRMC called and asked him

6 to act as “security stand by” while the hospital “relieved” a doctor suspected of being under the

7 influence of drugs or alcohol. Cain Decl. ¶ 3. According to Cain, Walters appeared to be

8 “mentally and/or physically impaired” and did not appear to be able to safely drive. Id. at ¶ 5.

9 Cain states that although he did not make the decision to send Walters away in a taxi, he agreed

10 with that decision based on his interaction with Walters. Cain also states that he “did not take any

11 steps to determine whether Dr. Walters was under the influence of drugs or alcohol because [he]

12 was not investigating potential criminal conduct by Dr. Walters.” Id. at ¶¶ 5, 7.

13 Without reaching the question of whether Cain’s conduct in forcing Walters to take a taxi

14 violated Walters’s Fourth Amendment rights, the court concludes that Walters cannot establish the

15 second inquiry for the qualified immunity analysis. Specifically, Walters does not identify any

16 authority that a reasonable officer who was not investigating potential criminal conduct but was

17 instead summoned to act as “security stand by” to enforce an order to take a taxi from the hospital

18 would have understood that by doing so, he was effectuating a seizure that must be supported by

19 reasonable suspicion. Importantly, Walters did not depose Cain or any other witnesses, and he

20 does not challenge Cain’s statements about the role he was playing during this incident in any

21 way. Specifically, he offers no evidence or argument about Cain’s training, experience, or history

22 at CCRMC, and does not dispute Cain’s statement that he was not investigating criminal conduct

23 at the time he enforced Tornabene’s order to depart the hospital in a taxi. He also does not dispute

24 Cain’s assertion that he was essentially acting as a security guard for the hospital.

25 When asked to provide authority that would have put Cain on notice that his actions

26 constituted an unlawful seizure, Walters’s counsel identified only Cain’s training in general. This

27 is insufficient. At the time of the incident, there was no published Supreme Court or Ninth Circuit

1 hospital in a taxi due to a suspected impairment must be supported by reasonable suspicion that a

2 crime had been or was about to be committed. Accordingly, Cain is entitled to qualified immunity

3 on Walters’s Fourth Amendment claim based on the order to depart in a taxi. Summary judgment

4 is therefore granted on that claim.

5 B. Negligence Claims

6 Walters’s third claim is negligent infliction of emotional distress against Tornabene, Cain,

7 and the County. His fourth claim is negligence against Cain and the County. In their motion,

8 Defendants argue that the third claim is duplicative of the fourth claim and should be dismissed.

9 In response, Walters contends that the claims are distinct. According to Walters, the third claim

10 for negligent infliction of emotional distress is based on the allegations that Tornabene and Cain

11 “failed to perform an investigation which would have prevented” his injury. Opp’n 19; see 5AC ¶

12 67. At the hearing, Walters’s counsel also clarified that his negligent infliction of emotional

13 distress claim against the County is based on a theory of vicarious liability for Tornabene and

14 Cain’s actions. The fourth claim for negligence is based on Cain’s alleged assault on Walters.

15 Opp’n 19; 5AC ¶¶ 74-76. On reply, Defendants appear to withdraw their motion as to the claim

16 for negligence based on Cain’s use of force. See Reply 5-8 (discussing only the third claim).

17 Defendants move for summary judgment on the negligent infliction of emotional distress

18 claim based on the failure to perform an investigation into Walters’s sobriety on two bases: first,

19 they argue that the claim is barred as to Tornabene because Walters failed to comply with the

20 California Tort Claims Act. They also argue that the claim otherwise fails on the merits.

21 1. Compliance with the California Tort Claims Act

22 “The California Tort Claims Act requires anyone suing a public entity to first file a claim

23 with the entity that includes a ‘general description’ of the alleged injury ‘so far as it may be known

24 at the time of presentation of the claim.’” K.T. v. Pittsburg Unified Sch. Dist., 219 F. Supp. 3d

25 970, 981 (N.D. Cal. 2016) (quoting Cal. Gov’t Code §§ 910, 945.4); see also Robinson v. Alameda

26 Cty., 875 F. Supp. 2d 1029, 1043 (N.D. Cal. 2012). “The purpose of [the California Tort Claims

27 Act] is ‘to provide the public entity sufficient information to enable it to adequately investigate

1 Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 (2004) (quoting City of San

2 Jose v. Superior Court, 12 Cal. 3d 447, 455 (1974)). “Consequently, a claim need not contain the

3 detail and specificity required of a pleading, but need only fairly describe what [the] entity is

4 alleged to have done.” Stockett, 34 Cal. 4th at 446 (citation and internal quotation marks omitted);

5 see also Blair v. Sup. Court, 218 Cal. App. 3d 221, 224 (1990) (“As long as these general

6 elements are present, it is not necessary that the claim comply with formal pleading standards.”).

7 The requirements of the California Tort Claims Act apply to suits against public employees as well

8 as to public entities. Massa v. S. Cal. Rapid Transit Dist., 43 Cal. App. 4th 1217, 1222-23.

9 Pursuant to Government Code section 910, a claim must contain, among other information,

10 (1) “the date, place and other circumstances of the occurrence or transaction which gave rise to the

11 claim asserted;” (2) “[a] general description of the indebtedness, obligation, injury, damage or loss

12 incurred so far as it may be known at the time of presentation of the claim” and (3) “[t]he name or

13 names of the public employee or employees causing the injury, damage, or loss, if known.” Cal.

14 Gov’t Code § 910.

15 Walters filed a tort claim with the County on June 26, 2018. [Docket No. 87 (Hurley

16 Decl., July 8, 2020) ¶ 5, Ex. F (Tort Claim).] It states that Walters’s claim for monetary damages

17 is “against [CCRMC] and its police officer/private security guard (his name and specific position

18 is unknown at this time), pursuant to the California Government Claims Act . . .” Tort Claim 1.

19 The tort claim describes the incident at issue, including “hospital staff” telling him “they were

20 sending him home before the end of his shift” and calling three police officers or security guards

21 “to remove him from the premises and put him in a taxi.” Id. at 2. It also states that despite his

22 medical conditions “explain[ing] away their observation of perceived unusual behavior, the staff

23 and officers/guards still insisted that Dr. Walters leave the premises,” and that “[t]he staff declined

24 his request to take a drug test to remove any suspicions about his behavior.” Id. The tort claim

25 also describes Walters’s search with an “officer/guard” in his car for his car keys, the subsequent

26 martial arts submission hold, and Walters’s trip home in a taxi. Id. at 2.

27 The tort claim indicates that Walters intended to bring a lawsuit asserting claims

1 on the actions of the “officer/guard.” Under the heading “Name of the Public Employee Causing

2 the Injury or Damage,” Walters wrote, “[t]he name of the police officer/private security guard who

3 committed the assault and battery upon Dr. Walters is currently unknown. He will be identified

4 during discovery.” Id. at 3.

5 According to Defendants, Walters’s failure to identify Tornabene by name or assert any

6 intention to bring claims against her in his tort claim bars his negligence claim against Tornabene.

7 The court disagrees. The California Tort Claims Act “is designed ‘to give the government entity

8 notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions.’”

9 K.T., 219 F. Supp. 3d at 981 (quoting Stockett, 34 Cal. 4th at 446). “The statutory bar therefore

10 applies only to a ‘complete shift in allegations, usually involving an effort to premise civil liability

11 on acts or omissions committed at different times or by different persons.” Id. (quoting Stockett,

12 34 Cal. 4th at 446). Here, Walters wrote in his tort claim that “hospital staff told him they were

13 sending him home” and “called three police officers,” and that “the staff and officers/guards still

14 insisted” he leave the premises. He further wrote that “[hospital] staff declined his request to take

15 a drug test to remove any suspicions about his behavior.” Tort Claim 2. These are the actions that

16 caused Walters’s claimed harm: in his general description of the injury or damage, Walters wrote

17 that “[p]ursuant to the hospital staff’s directions to restrain Dr. Walters, restrict his freedom, and

18 eject him from the hospital, the officer/guard caused Dr. Walters to suffer extreme physical pain

19 from the battery . . .” Id. at 3. Defendants do not explain how Walters’s failure to identify

20 Tornabene by name deprived the County of the chance to investigate, since it had the necessary

21 internal records to identify the “hospital staff” involved in the actions at issue. Therefore,

22 summary judgment is denied as to this argument.

23 2. Merits of the Negligent Infliction of Emotional Distress Claim

24 Defendants next argue that the negligent infliction of emotional distress claim fails because

25 Walters cannot establish that Tornabene or Cain had a legal duty to investigate his sobriety before

26 ordering him to leave the hospital.

27 “Negligent infliction of emotional distress” is not an independent tort doctrine. See Potter

1 emotional distress is a form of the tort of negligence, to which the elements of duty, breach of

2 duty, causation and damages apply.” Varnado v. Midland Funding LLC, 43 F. Supp. 3d 985, 990

3 (N.D. Cal. 2014) (quotation and citation omitted).

4 California law establishes the general duty of each person to exercise, in his or her

5 activities, reasonable care for the safety of others. Cal. Civ. Code § 1714(a); Cabral v. Ralphs

6 Grocery Co., 51 Cal. 4th 764, 768 (2011) (citing Cal. Civ. Code § 1714(a)); T.H. v. Novartis

7 Pharm. Corp., 4 Cal. 5th 145, 163 (2017) (same). “[I]n the absence of a statutory provision

8 establishing an exception to the general rule of Civil Code section 1714, courts should create [a

9 duty] only where [it is] clearly supported by public policy.” Cabral, 51 Cal. 4th at 771; see also

10 Bily v. Arthur Young & Co., 3 Cal. 4th 370, 397 (1992) (courts use the “concept of duty to limit

11 generally the otherwise potentially infinite liability which would follow from every negligent

12 act”); Burns v. Neiman Marcus Group, Inc., 173 Cal. App. 4th 479, 487 (2009) (“California courts

13 have explicitly rejected the concept of universal duty.”). “[A]bsent a duty, the defendant’s care, or

14 lack of care, is irrelevant.” Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal.

15 App. 4th 472, 481 (1996). The question of duty is one of law. Regents of Univ. of Cal. v.

16 Superior Court, 4 Cal. 5th 607, 618 (2018).

17 To determine whether a duty exists, courts consider the following factors, known as the

18 “Rowland factors”:

19 the foreseeability of harm to the plaintiff, the degree of certainty that

the plaintiff suffered injury, the closeness of the connection between

20 the defendant’s conduct and the injury suffered, the moral blame

attached to the defendant’s conduct, the policy of preventing future

21 harm, the extent of the burden to the defendant and consequences to

the community of imposing a duty to exercise case with resulting

22 liability for breach, and the availability, cost, and prevalence of

insurance for the risk involved.

23

Rowland v. Christian, 69 Cal. 2d 108, 113 (1968). “The most important of these considerations in

24

establishing duty is foreseeability. As a general principle, a ‘defendant owes a duty of care to all

25

persons who are foreseeably endangered by his conduct, with respect to all risks which make the

26

conduct unreasonably dangerous.’” Tarasoff v. Regents of Univ. of California, 17 Cal. 3d 425,

27

434-35 (1976).

1 When applying the Rowland factors, the question is not whether the specific facts support

2 an exception to the general duty of reasonable care, but “whether carving out an entire category of

3 cases from that general duty rule is justified by clear considerations of policy.” Vasilenko v.

4 Grace Family Church, 3 Cal. 5th 1077, 1083 (2017) (quoting Cabral, 51 Cal. 4th at 772). Unlike

5 the other elements of negligence—breach, injury, and causation—which are necessarily fact-

6 dependent, the “[a]nalysis of duty occurs at a higher level of generality.” Vasilenko, 3 Cal. 5th at

7 1083 (citing Cabral, 51 Cal. 4th at 774).

8 Defendants frame the issue as whether Tornabene and Cain owed a duty to Walters to

9 investigate his sobriety before ordering him to leave the hospital. Walters does not dispute this

10 framing of the issue. However, the court rejects this framing because “on duty California law

11 looks to the entire ‘category of negligent conduct,’ not to particular parties in a narrowly defined

12 set of circumstances.” Cabral, 51 Cal. 4th at 774. Here, Tornabene and Cain played different

13 roles in the incident. As CCRMC’s Medical Director, Tornabene’s responsibilities included

14 overseeing personnel, including temporary physicians. It is undisputed that Tornabene made the

15 decision to remove Walters from the hospital. See Tornabene Decl. ¶¶ 2, 10, 11. In contrast, Cain

16 states that he was asked to act as “security stand by” while the hospital relieved Walters. Cain

17 Decl. ¶ 3; see also Sheriff’s Report 2. He states, and Walters does not dispute, that his role was

18 “to provide security for hospital management for a personnel matter,” and that he “was not

19 involved to investigate the report of a crime.” Cain Decl. ¶ 4. There is no evidence that suggests

20 that Cain made the decision to remove Walters from the hospital. Therefore, as to Tornabene, the

21 issue is whether a hospital supervisor owes an employee a duty to investigate a claim of sobriety

22 before removing the employee from the hospital due to her belief that he is physically or mentally

23 impaired. As to Cain, the issue is whether a member of law enforcement acting as a hospital

24 security guard owes an employee a duty to investigate a claim of sobriety before enforcing an

25 order to leave the hospital due to an alleged physical or mental impairment. The court will first

26 examine the issue of whether Tornabene owed Walters a duty and then turn to Cain.

27 a. Whether Tornabene Owed a Duty

1 Cabral, 51 Cal. 4th at 774-81. The California Supreme Court has explained that a court’s task in

2 determining duty “is not to decide whether a particular plaintiff’s injury was reasonably

3 foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally

4 whether the category of negligent conduct at issue is sufficiently likely to result in the kind of

5 harm experienced that liability may appropriately be imposed . . .” Id. at 772 (quotation and

6 citation omitted). The standard for foreseeability is one of “subjective reasonableness,” which

7 asks if “injury to another ‘is likely enough in the setting of modern life that a reasonably

8 thoughtful [person] would take account of it in guiding practical conduct.’” Sturgeon v. Curnutt,

9 29 Cal. App. 4th 301, 307 (1994) (quoting Bigbee v. Pacific Tel. & Tel. Co., 34 Cal. 3d 49, 57

10 (1983)).

11 As an initial matter, Walters does not clearly identify the injury he suffered as a result of

12 Tornabene’s failure to investigate his sobriety, but he appears to contend that he experienced

13 shame and embarrassment from the accusation of being intoxicated and being removed from the

14 hospital. See Opp’n 24. Walters argues that this harm was foreseeable because Tornabene told

15 Cain that she was removing Walters because he was intoxicated, and that investigating Walters’s

16 alleged intoxication “would have prevented the subsequent harm by removing the purported

17 reason for terminating and ejecting” him. Opp’n 22. However, this argument is too specific to the

18 facts of this case. At this stage, the court’s task is to determine “more generally” if the category of

19 negligent conduct “is sufficiently likely to result in the kind of harm experienced.” See Cabral, 51

20 Cal. 4th at 772. Walters offers no argument or authority to suggest that in general, a supervisor’s

21 failure to investigate an employee’s sobriety before removing him or her from a hospital due to a

22 suspected impairment “is sufficiently likely to result in the kind of harm” that Walters

23 experienced.

24 Moreover, even considering the particular circumstances of this case, Walters’s argument

25 on foreseeability relies on a connection between his purported intoxication and Tornabene’s

26 refusal to investigate his claim of sobriety, a connection that is not supported by the record

27 evidence. There is no admissible evidence that Tornabene accused Walters of being intoxicated or

1 that she did not accuse Walters of being under the influence, Tornabene Decl. ¶ 12, and Cain

2 states that he does not remember who told him that “they suspected [that Walters] might be under

3 the influence of drugs or alcohol.” Cain Decl. ¶ 3. As noted, Walters did not depose any

4 witnesses in this case and he offers no evidence to dispute Tornabene and Cain’s statements. He

5 also does not dispute Tornabene’s statement that Walters “appeared to be either physically or

6 mentally impaired such that [she] did not think he could safely care for patients,” and that the

7 reasons for his impairment were not important to her. Tornabene Decl. ¶¶ 11, 13. Accordingly,

8 there is no evidence to suggest that Tornabene was on notice that Walters might be injured due to

9 her failure to investigate his claim of sobriety in the absence of an accusation of intoxication. The

10 court thus concludes that it is not reasonably foreseeable that a hospital administrator’s decision to

11 remove a hospital employee due to the belief that the employee was physically or mentally

12 impaired by an unidentified cause without first investigating the employee’s claim of sobriety

13 would result in that employee’s experiencing emotional distress.

14 While courts “characterize foreseeability as a consideration” under Rowland, “it is more

15 than that. If the court concludes the injury was not foreseeable, there was no duty. There is no

16 need to discuss the remaining considerations.” Sturgeon, 29 Cal. App. 4th at 306 (citing Ann M. v.

17 Pacific Plaza Shopping Center, 6 Cal. 4th 666, 679-80 (1993)). As the court finds that Walters’s

18 injury was not foreseeable, it concludes that Tornabene did not owe a duty to Walters. Summary

19 judgment is therefore granted on the negligent infliction of emotional distress claim against

20 Tornabene.

21 b. Whether Cain Owed a Duty

22 The court now turns to the question relevant to Cain, that is, whether a member of law

23 enforcement acting as a hospital security guard owes an employee a duty to investigate a claim of

24 sobriety before enforcing an order to leave the premises due to an alleged impairment.

25 In general, a police officer or member of law enforcement has no duty to protect a member

26 of the public unless the officer has promised to do so and the individual relies on that promise.

27 Williams v. State of Cal., 34 Cal. 3d 18, 24 (1983). Where an officer undertakes action on behalf

1 organization.” Id. California courts have found no duty of care and have denied recovery “for

2 injuries caused by the failure of police personnel to respond to requests for assistance, the failure

3 to investigate properly, or the failure to investigate at all” because the “police had not induced

4 reliance on a promise, express or implied, that they would provide protection,” such that there was

5 a “special relationship” between the plaintiff and police. Id. at 25 (collecting cases).

6 Here, Walters’s negligent infliction of emotional distress claim against Cain is premised on

7 Cain’s failure to investigate Walters’s claim that he was sober before enforcing Tornabene’s order

8 to leave the hospital due to Walters’s alleged impairment. However, as explained above, an

9 officer does not owe a member of the public a duty of care with respect to an investigation unless

10 the officer takes action that creates a special relationship between the officer and the individual.

11 In the absence of an induced reliance, no duty attaches. See Williams, 34 Cal. 3d at 24-25. In this

12 case, Walters presents no evidence that Cain took any action that created a special relationship

13 between Cain and Walters. Accordingly, Cain did not owe a duty to Walters to investigate his

14 claims of sobriety. Summary judgment is therefore granted on Walters’s negligent infliction of

15 emotional distress claim against Cain.

16 As Walters’s claim against the County is based on respondeat superior for Cain and/or

17 Tornabene’s acts, summary judgment is also granted on the negligent infliction of emotional

18 distress claim against the County.

19 C. Defamation

20 Walters’s final claim is for defamation against Tornabene and the County. This claim is

21 based on the two reports about Walters that CCRMC submitted to the Medical Board of

22 California. It is also based on Walters’s allegation that Tornabene told hospital staff that Walters

23 “had refused to take a drug test, which was untrue.” 5AC ¶¶ 79, 82, 83.

24 Defendants argue that the defamation claim fails because Walters did not exhaust his

25 administrative remedies as to that claim.

26 As discussed, “[t]he California Tort Claims Act requires anyone suing a public entity to

27 first file a claim with the entity that includes a ‘general description’ of the alleged injury ‘so far as

1 must contain, among other information, (1) “the date, place and other circumstances of the

2 occurrence or transaction which gave rise to the claim asserted;” (2) “[a] general description of the

3 indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of

4 presentation of the claim” and (3) “[t]he name or names of the public employee or employees

5 causing the injury, damage, or loss, if known.” Cal. Gov’t Code § 910. “[A] claim need not

6 contain the detail and specificity required of a pleading, but need only fairly describe what [the]

7 entity is alleged to have done.” Stockett, 34 Cal. 4th at 446 (citation and internal quotation marks

8 omitted). However, “[i]f a plaintiff relies on more than one theory of recovery against the State,

9 each cause of action must have been reflected in a timely claim.” Nelson v. State of California,

10 139 Cal. App. 3d 72, 79 (1982) (emphasis added). Additionally, “the factual circumstances set

11 forth in the written claim must correspond with the facts alleged in the complaint.” Id. Claims

12 based on “an entirely different set of facts” are barred. Stockett, 34 Cal. 4th at 447.

13 Here, Walters satisfied the requirement of filing an administrative claim with the County

14 on June 26, 2018. While the tort claim fairly reflects Walters’s claims based on his physical

15 interaction with Cain and negligence claims, it does not reflect a defamation claim. It does not

16 mention Tornabene’s actions with respect to the 805 reports or any statements about Walters’s

17 alleged refusal to take a drug test, and nothing in the claim suggests that Walters would or could

18 bring a claim for defamation. Those claims are premised on different facts than those reflected in

19 his tort claim and the defamation claim is based on a different “theory of recovery.” See Nelson,

20 139 Cal. App. 3d at 79. Accordingly, Walters may not proceed with his defamation claim.

21 D. Punitive Damages

22 Finally, Defendants move for summary judgment on Walters’s claim for punitive damages.

23 They argue that there is no evidence to support a finding that Cain’s actions were malicious,

24 oppressive, or in reckless disregard of Walters’s rights. Mot. 23.

25 A jury may assess punitive damages under section 1983 when a defendant’s conduct

26 involves “reckless or callous indifference to the federally protected rights of others” without

27 regard to actual intent or malice. Smith v. Wade, 461 U.S. 30, 56 (1983). Under California law,

1 defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). Malice

2 || “includes the willful and conscious disregard of the rights or safety of others.” Cal. Civ.Code §

3 3294(c)(1). Given that a jury will decide the reasonableness of the force used by Cain on Walters,

4 || the court finds that a triable issue exists as to Cain’s state of mind during the incident at issue.

5 See Warren v. Marcus, 78 F. Supp. 3d 1228, 1252 (N.D. Cal. 2015) (finding defendant was not

6 || entitled to summary judgment on punitive damages claim where there were questions of fact about

7 the reasonableness of the force used by defendant officer).

8 || VI. CONCLUSION

9 For the foregoing reasons, Defendants’ motion for summary judgment is granted.

10 Summary judgment is granted as to Walters’s section 1983 claim against the County; section 1983

11 claim against Cain for forcing Walters to depart the hospital in a taxi; third claim for negligent

a 12 infliction of emotional distress against Tornabene, Cain, and the County; and defamation claim

13 against Tornabene and the County. is

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16 || ated: September 16, 2020 Ky ORDERED

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