# Sheremetiev v. County of Los Angeles CA2/1

> California Court of Appeal · February 3, 2025

URL: https://www.frixlaw.com/law-library/cases/10792755

## Case

- **Court:** California Court of Appeal
- **Decided:** February 3, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 1/31/25 Sheremetiev v. County of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

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

2
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

3
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

4
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

5
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.

6
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

7
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

8
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.

9
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.”

10
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

11
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

12
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

13
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.

14
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

15
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

16
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

17
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,

18
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.)

21
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.”

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10792755. Public record. Not legal advice.