Sheremetiev v. County of Los Angeles CA2/1

Filed 1/31/25 Sheremetiev v. County of Los Angeles CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DANIELLE SHEREMETIEV, B330694

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 20STCV44539)

v.

COUNTY OF LOS ANGELES et al.,

Defendants and Respondents.

APPEAL from a judgment and order of the Superior Court

of Los Angeles County, Michael Shultz, Judge. Reversed with

directions.

Joyce Law, Brigid Joyce; Navob Law and Kaveh Navab for

Plaintiff and Appellant Danielle Sheremetiev.

Peterson, Bradford, Burkwitz, Gregorio, Burkwitz & Su,

Avi A. Burkwitz, Gil Y. Burkwitz; Pollak, Vida & Barer, Daniel P.

Barer and Karen M. Stepanyan for Defendants and Respondents

County of Los Angeles, Brianna Vallejo, Charles M. Cardenas,

and Mbi Ningo Mbi.

Danielle Sheremetiev appeals from a judgment entered

in favor of respondent County of Los Angeles (the County)

and several individual respondents (Deputy Brianna Vallejo,

physician Charles M. Cardenas, M.D., and nurse practitioner Mbi

Ningo Mbi, P.A.) who worked at the County’s Century Regional

Detention Facility (CRDF) where Sheremetiev was in custody

when she incurred the injuries at issue in the instant lawsuit.

The trial court entered the judgment after granting respondents’

motion for summary judgment of Sheremetiev’s complaint.

We agree with Sheremetiev that the court erred in granting

the motion as to her claim against Vallejo for negligence.

Accordingly, we reverse the judgment and direct the trial

court to enter a new order granting summary adjudication in

respondents’ favor on the remaining four claims (for intentional

infliction of emotional distress (IIED), medical malpractice

negligence, failure to summon medical care under Government

Code section 845.6, and violation of the Bane Act (Civ. Code,

§ 52.1)).

Sheremetiev also attempts to challenge the court’s

postjudgment order denying her motion to tax costs. Because

she failed to file a notice of appeal of this separately appealable

order, however, we cannot and do not address this argument.

FACTS AND PROCEEDINGS BELOW

A. Sheremetiev’s Claim for Damages and Federal

Complaint

On March 19, 2019, Sheremetiev filed and served a timely

“claim for damages to person or property” with the County (the

claim form). (Capitalization omitted.) The claim form described

two incidents that Sheremetiev contended occurred while she was

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detained at CRDF. First, on September 23, 2018, Sheremetiev

fell while walking quickly to the showers, fracturing the patella

in her left knee. Second, on February 13, 2019, Vallejo and

another deputy ordered Sheremetiev to sleep in the top bunk of

her bed, despite medical orders in Sheremetiev’s file prohibiting

this. When Sheremetiev attempted to do so, she fell, injuring her

head, neck and back.

The claim form cites these incidents as the basis for

the following causes of action: violations of the Eighth and

Fourteenth Amendments to the United States Constitution,

negligence, IIED, violation of the Bane Act, and other “federal

and state claims.” (Capitalization omitted.) The County denied

relief in response to the claim form.

On August 7, 2019, Sheremetiev sued respondents in

the United States District Court for the Central District (case

No. CV 19-6852-JFW(MAAx)). The federal court declined

to assert supplemental jurisdiction over Sheremetiev’s state

law claims and dismissed those claims on October 23, 2020.

B. The Instant Complaint

On November 19, 2020, Sheremetiev filed the instant

action, the operative complaint of which is the second amended

complaint (SAC). Based on allegations regarding the same two

incidents described in the claim form, the SAC asserts causes

of action (1) against the County and Vallejo under Government

Code section 845.6 for failure to summon immediate medical

care following each incident, (2) against Vallejo for negligence

and IIED, (3) against Vallejo and the County for violation of

the Bane Act, and (4) against Cardenas and Mbi (the CRDF

physician and nurse practitioner who treated Sheremetiev while

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she was in custody) and the County for medical malpractice

negligence.

C. Respondents’ Motion for Summary Judgment

Respondents moved for summary judgment, or in the

alternative, summary adjudication. Respondents supported

their motion with, inter alia, the declaration of Dr. Paul Adler, a

physician specializing in osteopathic medicine and “correctional

medicine.” Sheremetiev filed an opposition supported by her

own declaration, a June 11, 2020 letter from orthopedic surgeon

Dr. Daniel M. Silver regarding “personal injury [¶] initial

comprehensive orthopedic consultation” and a June 15, 2020

letter from Silver titled “supplemental report—review of medical

records” (collectively, Silver’s letters), as well as the transcript

of Silver’s deposition in the federal action. (Capitalization &

underscoring omitted.)

We summarize key portions of the evidence at issue

presented on summary judgment below.

1. Sheremetiev Declaration

Sheremetiev declared the following in opposition to the

summary judgment motion:

a. 2018 slip and fall

After Sheremetiev slipped and fell on September 23, 2018,

she was seen by CDRF medical staff, who also took X-rays and

diagnosed her with a broken patella. She was transported to

LAC+USC Medical Center the next day, where an orthopedic

doctor diagnosed her with “ ‘a comminuted patellar fracture.’ ”

She was ordered to urgently be seen at the CRDF outpatient

orthopedic clinic within one week. Hospital medical personnel

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put Sheremetiev’s injured knee in “a splint or brace” and told

her to avoid weight bearing activities.

A lock down at CRDF on October 3, 2018, however,

prevented her consultation at the clinic on that date. Instead,

respondent Mbi, a nurse practitioner at the clinic, consulted

with Sheremetiev a week later. X-rays of Sheremetiev’s knee

reflected no changes. Mbi provided Sheremetiev with a knee

immobilizer and instructed her to use crutches. Sheremetiev

had “a few” additional consultations with Mbi before Sheremetiev

was discharged from the orthopedic clinic around the end of

November 2018, at which point her knee remained fractured.

Upon her return to CRDF, Sheremetiev was provided a

wheelchair without leg extenders and was not allowed crutches.

Her knee immobilizer broke and was not replaced for several

weeks. CRDF medical personnel instead gave her an ace

bandage.

Sheremetiev’s injury caused her a great deal of pain, and

she complained regularly to CRDF staff about both her pain

and her broken immobilizer. In early 2019, Sheremetiev began

telling medical staff that she believed she was having a “ligament

issue” with her injured knee as well, and that she was concerned

it did not appear to be healing. At no point did CRDF obtain an

MRI of her knee or provide her with physical therapy.

b. 2019 fall from bunk bed

Because of her knee injury, on February 11, 2019, “lower

bunk orders were placed in the system on [Sheremetiev’s] behalf,”

meaning she was not to be moved to a top bunk. Two days later,

Vallejo and one other deputy “came to [Sheremetiev’s] cell and

ordered [her] to move to the top bunk by the end of the day.

[Sheremetiev] showed them [her] visible knee brace and told

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them [she] had a broken patella. [She] also told them [she] had

medical orders in place that [she] could only use a bottom bunk.”

The two deputies then left, and returned “a short time later

and again ordered [Sheremetiev] to move to the top bunk by the

end of the day.” “They stood outside [Sheremetiev’s] cell in an

intimidating manner and again aggressively yelled at [her] to

move. [She] was afraid [she] would get in trouble or be moved

to solitary confinement if [she] did not do what they said. [¶] . . .

[L]ater that evening, per the deputies’ orders, [she] tried to climb

to the top bunk. There were no stairs or anything to help [her],”

so she “used the desk to help [her] up” and fell, injuring her head,

neck, and back.

Sheremetiev’s cellmate was present when Sheremetiev fell.

Sheremetiev “[is] informed and believe[s] and thereon allege[s]

[her cellmate] rang the emergency button in the cell to summon

help” but “[n]o one came to assist.” Sheremetiev did not tell

any CRDF personnel about the fall until the next day, after

which CRDF personnel transported her to the main clinic. She

“was given an ice pack and told [she] would be seeing a doctor,”

which the next day she did. Specifically, she saw Cardenas

on February 15, 2019, at which time “X-rays were taken of

[her] knee, spine and skull” and her “wounds were also treated.”

Sheremetiev told Cardenas during this visit about pain in her

neck and back from the fall, as well as continuing pain in her

left knee and asked “whether [it] could be a ligament issue.”

Cardenas told her “there was no change to [her] patella fracture

per the X-ray and that he would refer her back to the ortho[pedic]

clinic.” (Capitalization omitted.) Sheremetiev continued to

complain of pain in her neck, back and knee, orally and in

writing, and was never referred to the orthopedic clinic.

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Sheremetiev “was very depressed and felt helpless as to

[her] ongoing medical issues and pain. [She] resigned [herself]

to the fact nothing would heal while in jail.”

c. Treatment after Sheremetiev’s release

from CRDF

In April 2019, after Sheremetiev was released, she

consulted an orthopedic doctor, who advised her that her patella

remained fractured. An MRI revealed Sheremetiev had a

complex meniscus tear. The doctor referred her to physical

therapy. When physical therapy failed to relieve her pain,

Sheremetiev underwent knee surgery in November 2020.

Despite the surgery, Sheremetiev’s knee “has not been the same

since [the] injury” and she “continue[s] to have pain” requiring

her at times to use a knee brace.

Sheremetiev also consulted a doctor for “ongoing pain in

[her] neck and back.” The doctor ordered an MRI of her neck and

referred her to physical therapy. Sheremetiev has received two

“diagnostic numbing injections in [her] neck to try and relieve the

pain,” three steroid injections on her “lower right SI joint,” and

receives monthly “trigger point injections” in her neck, shoulders,

and lower back. Despite these injections, she is “in constant

pain” and takes daily pain medications. Medical personnel have

advised her that she may need spinal surgery and/or further knee

surgery to address her symptoms.

2. Adler Declaration

Declarant Adler is an osteopathic doctor whose practice

specializes in “correctional medicine” which he defines as

“treating and overseeing inmates in a detention facility setting.”

As a result, Adler is “thoroughly familiar with protocols for

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treating inmates, including the relevant nuances in providing

medical treatment in a jail setting and transferring inmates to

other facilities” and the applicable standard of care for medical

professionals. Adler reviewed the SAC, various of Sheremetiev’s

medical records; the video depicting Sheremetiev’s 2018 slip and

fall; and the depositions of Cardenas, Mbi, and Sheremetiev.

The only reference in the Adler declaration to any of

the injuries Sheremetiev claims resulted from her fall from the

bed, or to that incident generally, is as follows: “On February 15,

2019, . . . Sheremetiev claims that she fell and hit her head on

the upper bunk inside the facility. She also claimed that her

knee was re-injured.”

The declaration contains Adler’s “expert opinion . . .

that the care and/or treatment provide[d] to . . . Sheremetiev

at CRDF, including the care and treatment provided by . . .

Cardenas and . . . Mbi, complied with the applicable standard

of care for correctional health providers at all relevant times.”

He further declares that, “to a reasonable degree of medical

probability, that nothing . . . Cardenas, . . . Mbi, or County

medical personnel did, or allegedly failed to do, caused, or

contributed to . . . Sheremetiev’s alleged injury in this matter.”

Adler elaborates on this opinion as follows: “The medical records

and/or imaging studies reflect that even after her release from

jail, . . . Sheremetiev’s patella fracture was healing without the

need for surgical intervention. . . . Further, based on the imaging

study following her release from jail,[1] none of the jail[’]s conduct

1 The imaging Sheremetiev obtained following her release

from CRDF included imaging of both her neck and her knee. It

is thus possible that—but not clear whether—Adler’s reference

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and/or alleged inaction resulted in any further injury to . . .

Sheremetiev’s patella or any other claimed injury.”

Sheremetiev filed evidentiary objections to Adler’s

declaration, only one of which is relevant to the instant appeal.

Namely, Sheremetiev objected to the majority of Adler’s opinions

regarding standard of care, and all of his opinions regarding

causation, on the following basis: “Adler states he has his

doctorate in osteopathic medicine. He is not an orthopedic

doctor or surgeon. Thus, plaintiff contends he does not qualify

as an expert under Evidence Code section 720. Improper expert

opinion.” (Capitalization omitted.)

3. Silver Deposition Testimony and Silver’s

Letters

Silver’s letters summarize his “personal injury [¶] initial

comprehensive orthopedic consultation” with Sheremetiev,

informed by his review of certain medical records and a physical

examination of Sheremetiev on June 11, 2020, as well as a

supplemental review of additional medical records on June 15,

2020. (Capitalization & underscoring omitted.) Among the

medical records Silver reviewed, and that Sheremetiev offered

in opposing summary judgment, was a June 13, 2019 letter from

Dr. Alexander Usmanov summarizing an MRI performed on

Sheremetiev’s cervical spine at Wilshire Downtown Advanced

Imaging Radnet. It contains a finding of 3 mm herniations of

the C3-C4, C4-C5, C5-C6, and C6-C7 vertebrae.

Silver’s letters offer several “diagnoses,” including a

“[l]eft knee medial meniscus tear,” “[c]ervical herniated nucleus

to post-custody imaging is referring only to Sheremetiev’s knee

injury.

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pulposus at C3-C4, C4-C5, C5-C6, and C6-C7,” as well as anxiety,

depression and insomnia. (Capitalization & underscoring

omitted.) The letters further recommend additional treatments

for both the knee injury and spinal injuries, including physical

therapy, epidural injections, and possibly surgery. As to

“causation,” Silver opines that the injuries to Sheremetiev’s

cervical spine and knee, as well as her anxiety, depression and

insomnia “[are] the result of ” the September 2018 slip and fall

and the February 2019 fall from the bed.

In Silver’s October 13, 2020 deposition in the federal

case, he denied having formed or offered any opinions as to

“whether the care that . . . Sheremetiev received in the jail was

inappropriate, negligent, no good, [or] anything of that nature.”

Silver did, however, opine at his deposition as to the causes

of some of Sheremetiev’s claimed injuries. In his opinion, the

damage to at least one of the disks in Sheremetiev’s neck and

the related pain were the result of her fall from the bunk bed,2

2 Specifically, he testified that “[t]he fall off of the bunk

on [February 15, 2019] seemed to precipitate her neck pain,

and I would say it was probably that fall that caused at least

one of the disks, possibly two of the disks to tear and herniate.

[¶] . . . [¶] . . . I would speculate that she had some weakness of

the disks to begin with, and then when she fell, either two of

them or I think there was all of them had a 3 millimeter bulge,

but it’s hard to tell which ones were most injured [by the] fall.”

“Q. So once she fell off this bunk bed, in terms of an injury

that you could tell being caused by the fall with respect to any

imaging, are you able to tell one way or the other? [¶] . . . [¶] . . .

[A.] . . . She describes hitting her head, and that would snap the

neck when you hit your head, so something happened to the neck,

and I couldn’t tell you if it was one disk or four disks that were

damaged.”

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and both of the falls caused and/or exacerbated her anxiety,

depression, and insomnia.

Respondents filed evidentiary objections to Silver’s letters

on the basis that both were inadmissible hearsay because they

were not “declaration[s] in conformity with . . . Code of Civil

Procedure, [section] 2015.5” and that they lacked foundation.

4. Order Granting Motion

The court overruled Sheremetiev’s objections to Adler’s

declaration, sustained respondents’ objections to Silver’s letters,

and granted respondents’ summary judgment motion. The

court concluded that respondents “[had] met their burden of

establishing no breach of duty and the lack of causation” in a

manner that affected all causes of action, because “[Sheremetiev]

[had] not submitted an expert’s declaration to controvert

Dr. Adler’s opinion that [respondents] complied with the

standard of care or that [respondents’] conduct did not cause

[Sheremetiev’s] injuries.” (Capitalization omitted.) The court

rejected Sheremetiev’s attempts to rely on Silver’s deposition

because Silver “did not render an opinion about the applicable

standard of care” and indeed “expressly testified that he was not

providing any opinions on whether the care provided in the jail

setting was appropriate or not true. . . . His expertise is limited

to orthopedic medicine. . . . Without an expert on standard of care

or causation,” the court concluded the undisputed facts prevented

Sheremetiev from establishing any of her claims. The court

further concluded that Sheremetiev’s claim for failure to provide

medical care failed because the undisputed material facts were

that she had, in fact, received medical care after both of her

injuries—just not in the way or of the type she deems sufficient.

The court rejected respondents’ argument that Sheremetiev’s

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Bane Act claim was untimely, but concluded that it nevertheless

failed, as did all of her claims, for lack of a triable question

regarding causation.

The court entered judgment in respondents’ favor on all

claims, and Sheremetiev timely appealed.

D. Cost Motions

After Sheremetiev had appealed the judgment, the trial

court denied her motion to strike/tax costs in a cost memorandum

the County had filed seeking costs associated with defending

against both the federal and state court actions. Sheremetiev

did not appeal the court’s denial of her motion to strike/tax.

DISCUSSION

On appeal, Sheremetiev makes several arguments

challenging the court’s summary judgment ruling. Our

review of a trial court’s grant of summary judgment is de novo.

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

We therefore independently analyze the evidence in the record,

except that to which objections were properly sustained, under

the same summary judgment legal framework applicable in

the trial court. Under that framework, the party moving for

summary judgment bears the initial burden of making a prima

facie showing that there is no triable issue of material fact.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; see

Code Civ. Proc., § 437c, subd. (c).) Only if that party makes such

a showing does the burden shift to the opposing party to produce

evidence to challenge the moving party’s evidence. (Aguilar,

supra, at p. 850; Saelzler v. Advanced Group 400 (2001) 25

Cal.4th 763, 768.) “We liberally construe the evidence in support

of the party opposing summary judgment [citation], and assess

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whether the evidence would, if credited, permit the trier of fact

to find in favor of the party opposing summary judgment under

applicable legal standards.” (Loggins v. Kaiser Permanente

Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins).)

A. Medical Malpractice Negligence Claim

Sheremetiev appears to challenge summary adjudication

of her medical malpractice negligence claim as to all respondents

against whom it was alleged: the County, Cardenas, and Mbi.

The County is statutorily immune from direct liability to a

prisoner for medical negligence, however. (See Gov. Code,

§ 845.6.) Thus, as a matter of law, Sheremetiev’s medical

malpractice negligence claim against the County fails.

Sheremetiev does not present any argument to the contrary.

Cardenas and Mbi, by contrast, are not statutorily

immune to a medical malpractice claim by a prisoner. (See

Gov. Code, § 845.6 [permitting suit against “a public employee

who is lawfully engaged in the practice of one of the healing arts

under any law of this state . . . for injury proximately caused

by malpractice”].) We thus address Sheremetiev’s arguments

regarding the medical malpractice negligence claim against these

individual respondents only.

Sheremetiev argues that Adler’s declaration cannot, as

respondents contend, satisfy their initial burden on summary

judgment as to this medical malpractice claim. In so arguing,

she does not contend Adler’s opinions regarding duty and

breach—namely, that Cardenas’s and Mbi’s treatment of

Sheremetiev complied with applicable professional standard

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of care—are improper or otherwise inadmissible expert opinion.3

Rather, she argues the declaration fails to “address crucial pieces

of information” in reaching these opinions and is wrong in light

of that additional information. But the adequacy and correctness

of otherwise admissible expert opinion is a matter for expert

witnesses to debate and the trier of fact to consider—it is not a

basis for excluding the expert opinion.

Sheremetiev further argues that, even if Adler’s declaration

is admissible, she offered opposition evidence sufficient to create

a triable question of fact on the standard of care. We disagree.

Establishing the standard of care to support a medical

malpractice claim requires admissible expert opinion on that

subject, which neither Silver’s letters nor Silver’s deposition

provide. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) This

is because, at his deposition, Silver stated he was not offering

any opinion on standard of care, and the court acted within its

discretion in excluding Silver’s letters for lack of a penalty of

perjury attestation as required under Code of Civil Procedure

section 2015.5.

Sheremetiev urges that we ignore Code of Civil Procedure

section 2015.5 in the name of liberally construing evidence in

favor of the plaintiff, as we must in reviewing an order granting

a defendant’s motion for summary judgment. But none of the

3 As we discuss, ante at part C.4, Sheremetiev does argue

that Adler did not opine on whether Vallejo breached a duty of

care to Sheremetiev, because his declaration does not address

the duty of care a nonmedical prison official like Vallejo owes

a prisoner. This argument is inapplicable to Adler’s opinions

regarding the medical standard of care for the treatment

Cardenas and Mbi provided.

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cases Sheremetiev cites applies the rule of liberal construction

to justify a plaintiff relying on evidence that does not satisfy

statutory admissibility requirements. (See Garrett v. Howmedica

Osteonics Corp. (2013) 214 Cal.App.4th 173, 189; Hanson v.

Grode (1999) 76 Cal.App.4th 601, 607–608.) Rather, Hanson

addresses whether an expert declaration contained causation

and standard of care opinions that were sufficiently specific

and definite to avoid summary judgment. (Hanson, supra, at

pp. 607–608.) The court concluded that “[a]lthough the style

of the [expert] declaration is at times a bit obtuse, [the plaintiff]

[was] entitled to all favorable inferences that may reasonably

be derived from that declaration,” and that the declaration was

sufficiently specific to support the inference that nerve damage

the plaintiff had “suffered during surgery was caused by the

conduct of defendants, which conduct fell below the applicable

standard of care. Nothing more was needed.” (Ibid.) And

Garrett addresses admissibility of an expert declaration under

Evidence Code section 802 and Sargon Enterprises, Inc. v.

University of Southern California (2012) 55 Cal.4th 747, 771,

which “allows the trial court to inquire into the reasons for an

expert’s opinion and to exclude expert opinion testimony if it is

‘based on reasons unsupported by the material on which the

expert relies.’ ” (Garrett, supra, at p. 186.) The court concluded

that, “[i]n light of the rule of liberal construction, [the] reasoned

explanation required in an expert declaration filed in opposition

to a summary judgment motion need not be as detailed or

extensive as that required in expert testimony presented in

support of a summary judgment motion or at trial” in order to

satisfy Evidence Code section 802 and Sargon. (Garrett, supra,

at p. 189.) For this reason, “the trial court could not properly

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exclude the expert testimony based on [the expert’s] failure

to identify the particular tests employed or describe the test

results.” (Ibid.) Garrett thus speaks to how a trial court should

differently calibrate, at various procedural stages, the level of

detail an expert must provide to establish a sufficient factual

basis for his opinions. It does not suggest a court can or should

ignore a statutory requirement that a declaration be executed

under penalty of perjury in order to constitute admissible

testimony.

B. Failure to Summon Medical Care Claim

As noted, Government Code section 845.6 prohibits a claim

against the County for medical malpractice based on the quality

of medical care it provides a prisoner. But the statute also

expressly permits a prisoner to sue both the County and its

employees if a County employee “knows or has reason to know

that the prisoner is in need of immediate medical care and he

fails to take reasonable action to summon such medical care.”

The section “is very narrowly written to authorize a cause

of action against a public entity for its employees’ failure to

summon immediate medical care only, not for certain employee’s

malpractice in providing that care.” (Castaneda v. Department

of Corrections & Rehabilitation (2013) 212 Cal.App.4th

1051, 1070 (Casteneda).) Accordingly, a Government Code

section 845.6 failure to summon claim cannot be based on the

quality or type of care summoned and provided. (Castaneda,

supra, at p. 1072.) For example, “the failure to prescribe

necessary medication or, once summoned to provide treatment,

to ensure proper diagnosis, or to monitor the progress of an

inmate that the public employee has been summoned to assist,

are issues relating to the manner in which medical care is

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provided, and do not subject the state to liability under

[Government Code] section 845.6 for failure to summon.”

(Castaneda, supra, at p. 1074, capitalization & italics omitted;

Nelson v. State of California (1982) 139 Cal.App.3d 72, 80–81

(Nelson); Watson v. State of California (1993) 21 Cal.App.4th

836, 841–843 (Watson).)

The record contains undisputed evidence that, after

both her slip and fall and her fall from the bed, the County

summoned and provided Sheremetiev with medical care.

Sheremetiev disputes this with respect to the fall from the

bed, pointing to statements in her declaration that her cellmate

pressed the emergency button after Sheremetiev fell, but no one

responded. This statement is not competent evidence, however,

as Sheremetiev declares it only “on information and belief,”

not based on her own personal knowledge. (See Lopez v.

University Partners (1997) 54 Cal.App.4th 1117, 1124; see ibid.

[“[d]eclarations based on information and belief are insufficient

to satisfy the burden of either the moving or opposing party on a

motion for summary judgment or adjudication”].) The competent

evidence before the court, by contrast, universally reflects that

Sheremetiev first informed CRDF personnel about her fall from

the bed the following day, and that she was seen by medical staff

at that point.

Sheremetiev further argues that, even if the County

summoned medical care for her immediately after her two falls,

there are triable issues as to (1) whether the County summoned

medical care on other occasions when she complained regarding

the injuries resulting from these falls, and (2) whether the

County summoned medical care in the manner prescribed by

the medical personnel who initially examined her. Neither

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type of conduct is a basis for a Government Code section 845.6

failure to summon claim. As to the first type, Sheremetiev more

specifically points to evidence that: she repeatedly complained of

pain in her knee, but no assistance was provided to her; she told

jail staff she suspected she had a ligament issue in her knee, but

was never sent for additional diagnostics to assess this; and she

complained of pain in her back and neck, but was never seen by

an orthopedic specialist to address these complaints. However,

“[l]iability under [Government Code] section 845.6 is limited

to [a failure to summon care for] serious and obvious medical

conditions requiring immediate care.” (Watson, supra, 21

Cal.App.4th at p. 841; accord, Lawson v. Superior Court (2010)

180 Cal.App.4th 1372, 1385.) Pain associated with injuries the

County personnel had previously assessed and treated is not

such a “serious and obvious medical condition[ ] requiring

immediate care.” (Watson, supra, at p. 841.) Nor does

Sheremetiev reporting her lay suspicion that she had additional

issues beyond those identified through her previous treatment

constitute such an obvious need for medical care. Whether or

not these responses to Sheremetiev’s complaints may provide a

basis for liability against the County employees under a different

legal theory—and we neither conclude that nor consider whether

they do—any such liability would not be based on Government

Code section 845.6.

As to the second type of conduct Sheremetiev characterizes

as a failure to summon medical care, Sheremetiev points to

evidence that: after CRDF medical personnel urgently referred

her to the orthopedic clinic after her slip and fall, she was

not seen at the clinic until 16 days later; medical personnel

instructed Sheremetiev to hold her leg in a straight position,

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but CRDF did not provide her with a leg extender or crutches;

and her knee immobilizer was not replaced when broken. But

these issues all speak to the quality of care that was received—

not whether care was summoned. “[T]he failure of . . . public

employees [after summoning medical care for a prisoner

in immediate need] to provide further treatment, or to

ensure further diagnosis or treatment, or to monitor . . . or

follow up on [a prisoner’s] progress, are all facts which go to

the reasonableness of the medical care provided, but do not

constitute a failure to summon medical care.” (Casteneda,

supra, 212 Cal.App.4th at p. 1072, italics omitted; Watson,

supra, 21 Cal.App.4th at pp. 841–843; Nelson, supra, 139

Cal.App.3d at pp. 80–81.) Nor does delay in providing

treatment for which a prisoner is referred a failure to summon.

(Castaneda, supra, at pp. 1072–1073.)

Thus, Sheremetiev has failed to identify conduct that

could constitute failure to summon medical care in a manner

actionable under Government Code section 845.6. The trial

court did not err in ruling on this cause of action.

C. Causes of Action Based on Sheremetiev’s

Fall From the Bed

Three of Sheremetiev’s causes of action are based on

her 2019 fall from the bed and injuries to her neck, back, and

emotional well-being. These are: her negligence claim against

Vallejo, her IIED claim against Vallejo, and her Bane Act claim

against the County and Vallejo (collectively, the bed fall claims).

For reasons we discuss below, we conclude the court erred in

granting respondents’ motion as to one of these claims.

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1. Silver’s Deposition Testimony Creates a

Triable Question of Fact as to the Cause

of Sheremetiev’s Claimed Neck and Back

Injuries

Sheremetiev contends that, even if the opinions in the

Adler declaration satisfied the respondents’ initial burden as to

the cause of her neck and back injuries, Silver’s letters contain

contrary opinions on causation, and because the court abused

its discretion in excluding Silver’s letters, they create a triable

question of fact. We need not determine whether Adler’s

declaration contains admissible causation opinions regarding

the cause of the neck and back injuries, because even assuming

it does, and even though the court properly excluded Silver’s

letters (see Discussion ante, part A), Silver’s deposition creates a

triable question as to the cause of these injuries, as respondents

correctly conceded at the hearing before this court.4 In his

deposition, Silver disclaimed opinions on the standard of care,

but offered opinions as to the cause of Sheremetiev’s back and

neck injuries. Respondents did not object to Silver’s deposition

testimony, and the court did not exclude it. Accordingly,

respondents failed to show there was no triable issue as to

4 Below respondents argued there was no triable issue

of causation on the additional basis that Sheremetiev’s own

conduct, rather than Vallejo’s actions, caused Sheremetiev

to fall from the bed and get injured. But given Sheremetiev’s

uncontradicted declaration that she only attempted to climb

to the top bunk because she felt she had to do so after receiving

Vallejo’s order, a triable issue of fact exists as to the proximate

cause of the injury she incurred in the process.

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whether Sheremetiev’s falling while attempting to get into the

top bunk caused some or all of her claimed injuries.5

We next consider whether respondents have identified

any other bases on which the bed fall claims necessarily fail.

We address each claim in turn below.

2. IIED Claim

For conduct to support an IIED claim, it must be “so

extreme as to exceed all bounds of that usually tolerated in a

civilized community,” and the defendant must have engaged

therein with the intention of causing, or with reckless

disregard of the probability of causing, emotional distress.

(See Christensen v. Superior Court (1991) 54 Cal.3d 868, 903

[outlining elements of an IIED claim].) Respondents urge

that we may affirm the court’s ruling on the IIED claim based

on the lack of a triable question regarding several of these

elements, not just the causation element the trial court cited.

We conclude there was no triable question as to the intent

5 To support another argument that Silver’s deposition

testimony cannot create a triable issue as to the standard of

care and breach elements of Sheremetiev’s claims, respondents

note that certain of Silver’s deposition testimony uses the

words “speculate” and “possible.” To the extent respondents

also argue that Silver’s deposition testimony cannot create a

triable issue as to causation for this same reason, we disagree.

Taken as a whole, and given the liberal manner in which we

are to construe plaintiff ’s evidence (see Loggins, supra, 151

Cal.App.4th at p. 1109), Silver’s deposition testimony includes

an opinion that Sheremetiev’s fall from the bunk bed caused the

damage to at least one of the four damaged disks in her cervical

spine, even though Silver could not say whether it was more than

one. (See fn. 2, ante, containing the specific deposition language.)

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element of Sheremetiev’s IIED claim, and thus need not reach

respondents’ other arguments.

The conduct Sheremetiev describes in her testimony as the

basis for her IIED claim is that Vallejo, in a threatening manner,

ordered Sheremetiev to use the top bunk despite knowing about

the medical orders in Sheremetiev’s file prohibited Vallejo from

doing so. Sheremetiev argues this conduct could be deemed

sufficiently extreme and outrageous to support her IIED claim

because it reflects Vallejo “ ‘ “ ‘abus[ing] a relation or position

which [gave] [Vallejo] power to damage [Sheremetiev’s]

interests.’ ” ’ ” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092,

1122.) But even if Vallejo’s conduct is as Sheremetiev testified,

and even assuming it is sufficiently extreme and outrageous,

there is nothing in the record to create a triable question as

to whether Vallejo intended such conduct to cause Sheremetiev

extreme emotional distress, or that Vallejo acted with reckless

disregard for whether it would. Sheremetiev testified that she

did not feel Vallejo was “out to get [her]”—that is, that she did

not feel Vallejo wanted to harm her. There is no evidence in the

record to the contrary. Thus, the evidence is uncontradicted that,

whatever Vallejo’s motivation, Vallejo was not acting with an

intent to harm Sheremetiev—let alone with the intent to cause

Vallejo “ ‘ “ ‘emotional distress of such substantial quality or

enduring quality that no reasonable [person] in civilized society

should be expected to endure it.’ ” ’ ” (Hughes v. Pair (2009) 46

Cal.4th 1035, 1051.)

Thus, we affirm the court’s ruling as to the IIED claim on

this alternative basis that respondents established there was no

triable question as to whether Vallejo acted with the requisite

intent to cause Sheremetiev severe emotional distress.

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3. Bane Act Claim

Respondents argue the motion was properly granted as to

the Bane Act claim on several bases, only some of which the trial

court relied upon. We find one of these arguments the trial court

relied on dispositive and thus need not address whether the other

bases would also be sufficient to justify summary adjudication of

this claim.

Under the Bane Act, “[i]f a person or persons, whether

or not acting under color of law, interferes . . . or attempts to

interfere by threat, intimidation, or coercion, with the exercise or

enjoyment by any individual or individuals of ” the individual’s

constitutional or statutory rights, that individual “may institute

and prosecute in [his or her] own name and on [his or her] own

behalf a civil action for damages.” (Civ. Code, § 52.1, subds. (b)

& (c).) The act thus authorizes a private right of action where,

inter alia, a defendant “ ‘tried to or did . . . force the plaintiff

to do something that he or she was not required to do under the

law’ ” by means of “ ‘threat, intimidation, or coercion.’ ” (King v.

State of California (2015) 242 Cal.App.4th 265, 294.)

Sheremetiev characterizes her Bane Act claim as based on

Vallejo and another deputy forcing Sheremetiev “by verbal [sic]

threats and physical intimidation” to try and climb up to the

top bunk, thereby “interfer[ing] with her right to protection

from bodily harm” guaranteed by, inter alia, Civil Code

section 43. In her declaration, Sheremetiev described these

threats and intimidation as Vallejo and another deputy

“[standing] outside [Sheremetiev’s] cell in an intimidating

manner and . . . aggressively yell[ing] at [her] to move,” which

caused Sheremetiev to feel “afraid [she] would get in trouble or

be moved to solitary confinement if [she] did not do what they

23

said.” At her deposition, Sheremetiev similarly described Vallejo

and the other deputy as pressuring her to use the top bunk with

words, not physical efforts, and did not testify that either deputy

expressly or impliedly threatened to physically harm her if she

did not comply with their commands. She also affirmatively

testified she was not concerned that either Vallejo or the other

deputy was going to physically harm her.6

Respondents point to this testimony and argue that,

as a matter of law, it prevents Sheremetiev from maintaining

a cognizable Bane Act claim. We agree. The Bane Act provides

that “[s]peech alone is not sufficient to support an action . . .

except upon a showing that the speech itself threatens violence

against a specific person or group of persons; and the person or

group of persons against whom the threat is directed reasonably

fears that, because of the speech, violence will be committed

against them or their property and that the person threatening

violence had the apparent ability to carry out the threat.” (Civ.

Code, § 52.1, subd. (k); see Shoyoye v. County of Los Angeles

(2012) 203 Cal.App.4th 947, 959 [“the multiple references to

violence or threats of violence in the statute serve to establish the

unmistakable tenor of the conduct that [Civil Code] section 52.1

is meant to address”].) Here, Sheremetiev testified that she

was not afraid Vallejo would become physically violent with her.

Rather, Sheremetiev feared that, if she refused to comply, she

6 Specifically, she testified:

“Q. When you had seen

[Vallejo] before, was she someone who you were concerned about

like this is someone who might do some harm to me? Was that a

feeling you had? [¶] A. No, no. I mean, you know, any deputy—

I—never mind. I won’t say that, but, you know, I did not think

she was out to get me.”

24

would get in “trouble” and possibly be placed in solitary

confinement—neither of which constitutes physical violence.

Sheremetiev identifies no contrary evidence. Accordingly,

respondents met their burden of establishing, using

Sheremetiev’s testimony, that she cannot maintain a triable

Bane Act claim to the jury.

4. Negligence Bed Fall Claim

Although the portion of the court’s ruling specifically

addressing the negligence bed fall claim focused solely on the

issue of causation, the court noted elsewhere in its order that

“Adler’s opinion that [respondents] complied with the standard

of care . . . undercuts all of [Sheremetiev’s] claims.” Sheremetiev

argues that the Adler declaration does not speak to the standard

of care applicable to her bed fall negligence claim against Vallejo

and thus could not assist respondents in meeting their burden

regarding this claim in the manner the court noted. We agree.

Sheremetiev’s negligence claim against Vallejo is

based on the “special relationship between jailer and prisoner,

[which] impos[es] on the former a duty of care to the latter,”

specifically a duty “to protect them from foreseeable harm.”

(Giraldo v. Department of Corrections & Rehabilitation (2008)

168 Cal.App.4th 231, 250 & 252; see id. at p. 252 [duty covers

actions of “ ‘prison official[s]’ ” specifically].) Adler did not

address such a duty. Adler declared he was a medical doctor

with expertise in “correctional medicine” and spoke to the

professional standard of care applicable to medical personnel

in the correctional setting and medical professionals generally.

Sheremetiev does not even allege Vallejo provided Sheremetiev

with any medical care. Thus, the opinions Adler provided do not

25

address the duty at issue in Sheremetiev’s negligence claim

against Vallejo.7

D. Order Denying Motion to Tax Costs

Sheremetiev further challenges the court’s denial of her

motion to tax costs. “A postjudgment order awarding or denying

costs is a separately appealable order.” (Kajima Engineering and

Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397,

1402; Code Civ. Proc., § 904.1, subd. (a) & (a)(2) [“[a]n appeal,

other than in a limited civil case, may be taken from . . .

[¶] . . . [¶] . . . an order made after a judgment made appealable

by paragraph (1)”].) Sheremetiev did not appeal from the

postjudgment order denying her motion to tax costs; nor can we

liberally construe her appeal from the judgment as encompassing

this order, as the order did not yet exist at the time Sheremetiev

filed her appeal. “Consequently, we are without jurisdiction to

review [the order regarding costs].” (Kajima Engineering and

Construction, supra, at p. 1402.)

7 Although the briefing is not entirely clear on this point,

respondents appear to be arguing that Sheremetiev failed to

preserve any argument that Adler was unqualified to opine

on the duty of care Vallejo owed Sheremetiev, and/or whether

Vallejo breached that duty, because Sheremetiev did not object

to the Adler declaration on this specific basis. But because the

Adler declaration does not include opinions covering the duty a

nonmedical prison official owes a prisoner, there was nothing in

the Adler declaration Sheremetiev could have objected to in this

regard.

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DISPOSITION

The judgment and order granting respondents’ motion

for summary judgment are reversed. Following remand, the

court shall enter a new order granting respondents’ motion

to the extent it seeks summary adjudication of the first, third,

fourth, and fifth causes of action (for failure to summon medical

care, IIED, violation of the Bane Act, and medical malpractice

negligence), but denying the motion to the extent it seeks

summary adjudication of the second cause of action for

negligence.

The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

WEINGART, J.

M. KIM, J.

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