Soliz v. California Highway Patrol CA5

Filed 5/29/25 Soliz v. California Highway Patrol CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

JOE SOLIZ,

F087057

Plaintiff and Appellant,

(Super. Ct. No. BCV-21-100676)

v.

CALIFORNIA HIGHWAY PATROL et al., OPINION

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Kern County. T. Mark Smith,

Judge.

Law Office of Michael J. Curls, Michael J. Curls and Nichelle D. Jordan for

Plaintiff and Appellant.

Rob Bonta, Attorney General, Iveta Ovsepyan, Assistant Attorney General,

Catherine Woodbridge, Elizabeth S. Angres and Molly S. Murphy, Deputy Attorneys

General, for Defendants and Respondents.

-ooOoo-

Plaintiff Joe Soliz sued the California Highway Patrol (CHP) and CHP officers for

intentional infliction of emotional distress and negligence for delays and other

misconduct in transporting him from the scene of his motorcycle accident to a hospital

for treatment of his broken ribs and partially collapsed lung. In closing argument,

plaintiff’s counsel referred to the officers’ behavior as “slowpoke conduct” that included

conducting a traffic stop of a speeding motorist on the way to the hospital and

unnecessarily waiting outside the hospital instead of immediately taking plaintiff inside

for treatment.

The jury found defendants were not negligent and their conduct was not

outrageous. Plaintiff appealed from the judgment, contending the trial court erred by

giving a jury instruction on the immunity contained in Government Code1 section 855.6.

That section provides: “Except for an examination or diagnosis for the purpose of

treatment, neither a public entity nor a public employee … is liable for injury caused by

the failure to make a physical or mental examination, or to make an adequate physical or

mental examination, of any person for the purpose of determining whether such person

has a … physical or mental condition that would constitute a hazard to the health or

safety of himself or others.” (§ 855.6.)

We conclude the jury instruction, which quoted the statute verbatim, did not

misstate the law. Also, because defendants presented a theory of the case involving the

immunity that was supported by the evidence, it was appropriate for the trial court to give

the instruction and let the jury decide whether and the extent to which the immunity

applied.

We therefore affirm the judgment.

FACTS

On June 16, 2020, at about 2:00 a.m., plaintiff crashed his motorcycle while

driving on Rosamond Boulevard in the City of Rosamond. A blood test taken later that

1 Undesignated statutory references are to the Government Code.

2.

morning showed his blood-alcohol concentration was 0.21 percent, which is more than

two and a half times California’s legal limit of 0.08 percent.

Paramedic Bradley Quintana (Paramedic) and emergency medical technician

Christina Rini (EMT) were employed by Ambulance Service, Inc. They arrived at the

scene and found plaintiff sitting next to a downed motorcycle.

Paramedic checked plaintiff’s mental awareness by asking him his name, the date,

and time of day, which plaintiff answered. Paramedic thought plaintiff seemed

intoxicated but concluded he was capable of making decisions. When Paramedic asked

plaintiff if he had any injuries, plaintiff was uncooperative and told them to leave.

Paramedic attempted to perform a physical examination of plaintiff, who reacted by

saying he was not injured and they needed to leave. Paramedic saw minor abrasions and

recommended plaintiff go to a hospital “[b]ecause there’s always injuries that we can’t

see and we always recommend people to the hospital for further treatment.” Plaintiff

refused to go to the hospital in the ambulance and Paramedic told him about the risks

associated with that decision. EMT testified that no one assessed whether plaintiff had

broken ribs because he would not allow it and “wouldn’t allow us to touch him.”

To document plaintiff’s refusal of an ambulance, Paramedic prepared a form titled

“Refusal of Care Against Medical Advice” and presented it to plaintiff. He refused to

sign it. As a result, Paramedic marked the box before the line stating: “Patient deemed

competent but refuses to sign form” and signed and dated the form. He also had Captain

Brandon Teater of the Kern County Fire Department sign the form as a witness. Captain

Teater described plaintiff as “pretty adamant that he did not want to receive medical

care.” He also recalled a CHP officer “joining in with our recommendation and advising

[plaintiff] to comply with our request to transport him by ambulance” and plaintiff

“continuously adamantly refusing to be transported by the ambulance.”

Captain Teater was at the scene because his fire station had received a call from

dispatch about the accident at 2:03:55 a.m. Engine 15 with Captain Teater, an engineer,

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and a firefighter, arrived at 2:09:05 a.m. Captain Teater is certified as an emergency

medical technician and testified a paramedic at the scene would be the higher medical

authority. Captain Teater estimated that he left the scene with the other fire department

personnel at about 2:29 a.m.

The CHP’s incident detail report, also known as a computer-aided dispatch or

CAD, showed the call reporting the accident was received between 2:00 and 2:01 a.m.;

officers were dispatched at 2:06 a.m.; and CHP Officer Lomdardi arrived at the scene at

2:12 a.m. Officer Lomdardi testified that, when he arrived, he saw plaintiff standing with

personnel from Hall Ambulance and the fire department. He stated that when Hall

Ambulance personnel were done examining plaintiff, “they told me that he was all mine.”

He interpreted this statement to mean he was free to speak with plaintiff.

Officer Lombardi’s patrol vehicle had a Mobile Video/Audio Recording System

(MVARS). When the Hall Ambulance personnel were done with plaintiff, Officer

Lombardi returned to his vehicle, removed the MVARS microphone from its charger, slid

it onto his belt, and returned to question plaintiff. He asked plaintiff the usual questions

for a DUI investigation. Plaintiff said something to the effect that he was not trying to go

to jail and just wanted to go home. When asked when he had his last drink, plaintiff

asked what time it was and, upon receiving an answer, estimated his last drink was

around midnight. During the questioning, Officer Lombardi asked EMT to bandage a

laceration above plaintiff’s left eye. EMT taped a four-by-four gauze bandage over the

injury.

When Officer Lombardi asked plaintiff if he had any physical impairments such as

a broken leg, back or ankle, plaintiff did not give a direct response but said do what you

got to do, just take me to jail. Officer Lombardi said he had more questions and plaintiff

repeated his response. Officer Lombardi then said: “You’re under arrest. Put your

hands behind your back.” Officer Lombardi’s first attempt to handcuff plaintiff was not

successful because plaintiff turned during the procedure. Officer Lombardi said, “we are

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not going to fucking play games” and “don’t fucking spin around on me. I’ll [d]ump

your ass.” Plaintiff complied and Officer Lombardi grabbed his left hand, brought the

right hand back, and placed handcuffs on each wrist. Plaintiff had responded to Officer

Lombardi’s statement about spinning by saying, “I’m not. My arm.” Officer Lombardi

said, “Maybe you shouldn’t have been driving your motorcycle drunk and fucking crash”

and then said, do “you think I give a shit.”2 When plaintiff said something about road

rash, CHP Officer Daniel Zimms said, “hey, we didn’t do this to you.”

The arrest was made at approximately 2:20 a.m. After the arrest, when plaintiff

complained of pain, Officer Lombardi “told him that he should have went with them, …

he should have went with the ambulance.” Plaintiff was placed in the back of CHP

Officer Brandon Chitty’s patrol vehicle because Officer Lomdardi’s vehicle did not have

a protective barrier between the front and back seats.3 Plaintiff was given a choice

between taking a breath test at the scene or being taken to a hospital for a blood test and

he chose a blood test. During the transport, Officer Lombardi was aware plaintiff was

complaining about pain, struggling to breathe, and had asked to have the handcuffs taken

off because it was making it difficult for him to breathe. The handcuffs were not taken

off or loosened.

The patrol vehicle with plaintiff left the scene at about 2:33 a.m. Officer

Lombardi drove separately. The officers took plaintiff to the Tehachapi Hospital because

it was in line with the jail facility in Bakersfield where he would be booked. The closer

2 Officer Lombardi later explained that this statement did not mean he did not care

about plaintiff’s injuries, but meant “I don’t give a shit about nonsense or excuses.

People — it seems to be almost every person that I arrest has got an excuse for why we

are there or I’m the bad guy. It’s one of those things that everybody gives you an

excuse.”

3 When Officer Chitty arrived at the scene, Officers Lombardi, Zimms, and Del

Toro had already arrived in separate vehicles. Officer Lombardi assumed primary

responsibility for the investigation of the accident.

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jail facility in Mojave could not be used because it had no nursing staff; the Bakersfield

facility has medical staff 24 hours a day.

The medical facility closest to the accident site was the Antelope Valley Hospital,

which was about 15 or 20 minutes away. In comparison, Tehachapi Hospital was

approximately 25 to 30 minutes away. The fastest route to that hospital would have been

to take State Route 14, which was a few blocks east of the accident site, to State Route

58. Instead, the officers took Rosamond Boulevard west to Tehachapi Willow Springs

Road and took that road north to Tehachapi.

On the way to the hospital, Officer Chitty conducted a traffic stop of a speeding

vehicle. His patrol vehicle’s unit history showed the license plate and driver’s license

were run at approximately 2:56 a.m. Officer Chitty testified the traffic stop lasted for

five minutes or less and he did not issue a citation. The vehicles of Officer Chitty and

Officer Lombardi arrived at Tehachapi Hospital at 3:03 a.m. The officers and plaintiff

remained outside the hospital while the officers completed paperwork and Officer Chitty

rolled up latex gloves to restock the supply in his belt. The MVARS recording showed

about 10 minutes elapsed from the time the vehicles arrived at the hospital until Officer

Lombardi stopped the recording, which occurred while plaintiff was still in the vehicle.

Officer Lombardi summarized the sequence of events by testifying: “We got to

the hospital. I gathered paperwork and then [plaintiff] was taken in. They drew his blood

and they performed a medical evaluation.” When they entered the hospital, Officer

Lombardi said, “I need a legal blood alcohol, a legal BA, and a medical clearance for

booking.” He also testified, “I got a blood draw at 3:10 a.m. I don’t know how those

times are correct.”

The emergency room doctor on staff, Scott Carter, treated plaintiff and described

his injuries as multiple rib fractures on the left, a pneumothorax (i.e., a collapsed lung),

and a laceration over his left eye. Dr. Carter inserted a chest tube in the left chest wall

and hooked the tube up to suction to pull the air from the chest cavity so the lung could

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reinflate. A CT scan of plaintiff’s head was negative for any intracranial bleeding.

Referring to his report, Dr. Carter testified that plaintiff was admitted to the hospital at

3:21 a.m. and somewhere in that timeframe was his first opportunity to see plaintiff.

Dr. Carter’s shift ended at 7:00 a.m. and Dr. Sherif came in on the day shift.

Officer Chitty had left Tehachapi Hospital at about 6:03 a.m. and Officer Lombardi left at

about 7:22 a.m. and returned to his office. Officer Zimms testified he was informed that

plaintiff was later transported from Tehachapi Hospital to the Kern Medical Center,

where he stayed for two days.

PROCEEDINGS

In March 2021, plaintiff filed a complaint against the CHP, Officer Lombardi,

other unnamed officers, Hall Ambulance, Paramedic and EMT.4 In January 2022,

plaintiff filed a fourth amended complaint, which was the operative pleading when the

case went to trial. The two causes of action against the CHP and its officers alleged

intentional infliction of emotional distress (first cause of action) and negligence (third

cause of action).5

4 Plaintiff settled with Hall Ambulance, Paramedic and EMT and dismissed them

from the lawsuit a few months before the trial. Consequently, they are not parties to this

appeal.

5 Plaintiff did not allege a federal civil rights cause of action under title 42 United

States Code section 1983. (See DeShaney v. Winnebago County Dept. of Social Services

(1989) 489 U.S. 189, 199–200 [“when the State takes a person into its custody and holds

him there against his will, the Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety and general well-being”]; D’Braunstein v.

California Highway Patrol (9th Cir. 2025) 131 F.4th 764, 769–770 [jury could find

officer’s failure to summon prompt medical treatment for stroke victim involved in a

single-vehicle accident violated victim’s constitutional rights]; Tatum v. City & County of

San Francisco (9th Cir. 2006) 441 F.3d 1090, 1099 [Fourth Amendment requires

objectively reasonable post-arrest care, which means officers must seek necessary

medical attention for detainee by either promptly summoning the necessary medical help

or taking detainee to a hospital].)

7.

The negligence claim asserted the CHP and its officers were negligent, wanton

and reckless in (1) failing to ensure plaintiff was thoroughly evaluated and treated for his

injuries; (2) interfering with the paramedic’s evaluation, treatment, and transport of

plaintiff; (3) ignoring plaintiff’s pleas that he was in pain and in need of medical

attention; (4) transporting plaintiff to obtain adequate medical care; and (5) commencing

a traffic stop while plaintiff was handcuffed in the back of the patrol car. It also alleged

the CHP officers had a duty “to exercise reasonable care with respect to evaluating the

need for and obtaining emergency medical care for [plaintiff]” and breached that duty by

failing to assure he was transported to the nearest hospital emergency room or trauma

center to be treated for his injuries.

The fourth amended complaint addressed the officer’s actual and constructive

knowledge by alleging they knew or should have known (1) plaintiff was too intoxicated

to make sound medical decisions on his own behalf; (2) plaintiff “sustained traumatic

injuries in the motorcycle crash”; (3) plaintiff was in need of medical care; (4) if plaintiff

“did not receive appropriate treatment for his injuries, [the] injuries could exacerbate and

[he] could have died”; and (5) leaving plaintiff seated upright and handcuffed in the back

of a patrol vehicle during a subsequent traffic stop would exacerbate his injuries and

cause him extraordinary pain and emotional distress. !

Defendants’ answer to the fourth amended complaint included a general denial of

the allegations and 46 affirmative defenses. Included among the affirmative defenses

was the immunity provided by section 855.6 for nonexistent or inadequate physical or

mental examinations.6

6 It appears defendants raised the section 855.6 immunity for certain public

employees who fail to make a physical examination or fail to make an adequate physical

examination in response to plaintiff’s allegation about the failure to exercise reasonable

care in evaluating his need for medical care.

8.

In July 2022, the CHP and Officer Lombardi filed a motion for summary judgment

based on the immunities in sections 815.2, 821.6 and 855.6 and Vehicle Code section

20016. Plaintiff opposed the motion. In December 2022, the trial court held a hearing

and denied the motion. The court’s rationale for concluding the section 855.6 immunity

did not apply is set forth below in part II.B.1.a. of this opinion.

A seven-day jury trial was conducted in September 2023. Before the jury returned

for the afternoon session on the sixth day of the trial, the trial court and counsel discussed

certain jury instructions and the jury verdict form. The discussion of the jury instructions

and the parties’ closing arguments are described in part II.B.1.b. of this opinion.

The special verdict form asked whether Officer Lombardi was negligent and

whether any other CHP officer was negligent. The jury answered “No” to both questions.

The special verdict form addressed plaintiff’s intentional infliction of emotional distress

claim by asking whether the conduct of Officer Lombardi and the conduct of the other

CHP officers was outrageous. The jury answered “No” to both questions. The special

verdict form did not include a separate question about the applicability of the section

855.6 immunity that is at issue in this appeal.

In October 2023, the trial court entered judgment in favor of the CHP and Officer

Lombardi. Plaintiff timely appealed.

DISCUSSION

Plaintiff contends the trial court committed prejudicial error by instructing the jury

that section 855.6 afforded Officer Lombardi and the other responding CHP officers

immunity for their negligent conduct. Plaintiff asserts the jury instruction “included an

incorrect statement of law in that it instructed the jury to conclude that Officer Lombardi

could not be found negligent for his ‘failure to make a physical or mental examination, or

to make an adequate physical or mental examination, of any person for the purpose of

determining whether such person has a disease or physical or mental condition that would

constitute a hazard to the health or safety of himself or others.’ ” Plaintiff argues this

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case was not about the officers’ examination of him, but was about the officers’ breach of

their special duty to provide for his safety and wellbeing while he was in their custody.

Plaintiff asserts this appeal presents a question of first impression: “Does [section] 855.6

provide absolute immunity to a peace officer who fails to recognize the seriousness of an

injury to a suspect in his custody?”7

Defendants argue the instruction was proper. Alternatively, they argue any

instructional error was harmless because plaintiff did not prove defendants were

negligent or their conduct was outrageous and, therefore, it is improbable the jury’s

verdict was based on the immunity instruction.

To establish the legal context for plaintiff’s claim of instructional error, we set

forth some basic principles governing jury instructions and how instructional errors are

analyzed.

I. INSTRUCTIONAL ERRORS

Instructional error can occur when the trial court (1) gives an instruction that

misstates the law, (2) gives an instruction that correctly states the law but is inappropriate

for the case, or (3) fails to give an instruction that is appropriate under the circumstances.

“A party is entitled upon request to correct, nonargumentative instructions on every

theory of the case advanced by him which is supported by substantial evidence. The trial

court may not force the litigant to rely on abstract generalities, but must instruct in

specific terms that relate the party’s theory to the particular case.” (Soule v. General

Motors Corp. (1994) 8 Cal.4th 548, 572.)

Whether a jury instruction is correct or erroneous is a question of law subject to

our independent review on appeal. (Harb v. City of Bakersfield (2015) 233 Cal.App.4th

7 We disagree with this framing of the issue. In our view, the issue is whether,

under the circumstances of this case, the trial court erred in giving an instruction that

correctly stated the law. That issue is analyzed using the two-part inquiry described in

part II.B., post.

10.

606, 617 (Harb).) If an instructional error occurred, the appellant also must establish the

error was prejudicial. (Ibid.; see Cal. Const., art. VI, § 13 [miscarriage of justice].)

Generally, the appropriate remedy for a prejudicial instructional error is a reversal of the

judgment and a remand for a new trial. (See e.g., Kinsman v. Unocal Corp. (2005) 37

Cal.4th 659, 683; Harb, supra, at pp. 610, 637.)

II. ERRORS RAISED BY PLAINTIFF

A. Misstating the Law

We first consider plaintiff’s argument that the section 855.6 immunity instruction

“included an incorrect statement of law.” The instruction quoted section 855.6 word for

word:

“Except for an examination or diagnosis for the purpose of treatment,

neither a public entity nor a public employee acting within the scope of his

employment is liable for injury caused by the failure to make a physical or

mental examination, or to make an adequate physical or mental

examination, of any person for the purpose of determining whether such

person has a disease or physical or mental condition that would constitute a

hazard to the health or safety of himself or others.” (§ 855.6.)

“ ‘Instructions in the language of an applicable statute are properly given.’ (7

Witkin, Cal. Procedure (4th ed. 1997) Trial, § 280, p. 326.)” (In re Conservatorship of

Gregory (2000) 80 Cal.App.4th 514, 520.) Our Supreme Court agreed with this

statement in Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1131.

“When a jury instruction is based on a statute, the statutory language should

normally be quoted verbatim. [Citations.]” (Thomas, Cal. Civil Courtroom Handbook &

Desktop Reference (2025 ed.) § 38:6.) “[I]rrelevant portions of the statute should be

omitted [citation], and if the statutory language may confuse the jury, it should be

modified to be made more understandable [citations].” (Ibid.) Conversely, when “an

instruction quotes only a portion of a statute, the omissions must not make the instruction,

considered as a whole and in the context of the evidence, misleading.” (Maureen K. v.

Tuschka (2013) 215 Cal.App.4th 519, 526–527.) “[I]f the language of the statute is

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confusing or couched in legal terms it should be explained, but when the language of the

section is unambiguous and clearly stated without legal embellishments, no explanatory

instructions are necessary.” (Thomas, Cal. Civil Courtroom Handbook & Desktop

Reference, supra, § 38:6.)

Based on the foregoing principles and the absence of any argument by plaintiff

that the instruction was confusing or ambiguous, we conclude the instruction did not

erroneously describe the section 855.6 immunity by quoting the entire statute verbatim.

(Cf. Harb, supra, 233 Cal.App.4th at p. 619 [“in the abstract, the police immunity

instruction correctly stated the law because its wording tracked the language in the first

sentence of [§] 820.4”].) Consequently, we reject plaintiff’s argument that the instruction

included an incorrect statement of the law.

B. Inappropriate Instructions That Accurately State the Law

Next, we consider whether the trial court erred by giving the immunity instruction

even though it correctly stated the law. This inquiry has two parts. First, did a party

advance a theory of the case involving the application of the law set forth in the

instruction? (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 572.) Second, was

that theory supported by substantial evidence? (Ibid.; Thompson Pacific Construction,

Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 547 [party is entitled to have the jury

instructed as to its theory of the case provided the requested instructions are legally correct

instructions and there is sufficient evidence to support the theory].)

These principles apply whether the party requesting the instruction was a plaintiff or

a defendant. Here, plaintiff has argued the instruction was inappropriate because his theory

of the case did not base liability on a failure to examine or an inadequate examination.

This argument suggests the propriety of an instruction depends entirely on the theories

pursued by the plaintiff and a defendant’s theory of the case does not matter. To the extent

that plaintiff is contending only his theories should be considered in determining whether

12.

the immunity instruction should have been given, we must reject that contention because it

is contrary to the principle that a party, whether a plaintiff or defendant, is entitled to a

correct, nonargumentative instruction on every theory of the case advanced by that party

and supported by substantial evidence. (Soule v. General Motors Corp., supra, 8 Cal.4th

at p. 572.)

Under that principle, our inquiry focuses on whether defendants advanced a theory

of the case in which the immunity played a role and, if so, whether that theory was

supported by substantial evidence. The answer to the first question is revealed by the

proceedings leading up to the trial, the discussions about jury instructions held during the

trial—particularly, the instruction on the section 855.6 immunity—and the closing

arguments made to the jury.

1. A Theory of the Case Involving the Immunity

a. Trial court proceedings

Defendants first raised the applicability of the section 855.6 immunity at the

pleading stage in their answer. After discovery, they raised it again in a motion for

summary judgment. The court denied defendants’ summary judgment motion and

addressed the section 855.6 immunity by stating:

“The Court is not persuaded that section 855.6 immunity serves to bar

Plaintiff's claims as a matter of law at [this] stage.

“In the case of Collins v. County of San Diego (2021) 60 Cal.App.5th 1035,

which examined immunity under 855.6, a jury determined that even if

deputies had a reasonable basis to believe an individual was intoxicated,

this did not preclude a negligence claim against deputies for interrupting

paramedics and failing to summon urgent medical care. ‘The deputies

could simultaneously have probable cause to arrest Collins, but also have

negligently interfered with the paramedics, preventing Collins from

receiving critical medical care.’ (Collins v. County of San Diego (2021) 60

Cal.App.5th 1035, 1050)

“Here, it is not clear that Plaintiff refused to allow paramedics to transport

him to a hospital against medical advice and that CHP and Officer

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Lombardi did not negligently interfere with paramedics, since Plaintiff was

intoxicated and his ability to make decisions was not clearly established.

Officer Lombardi appeared to acknowledge at deposition that when a

person is intoxicated preventing them from making sound decisions, the

Officer is responsible and is required to get the person to a medical facility.

Here, Officer Lombardi did not send Plaintiff with paramedics.”

During the trial, issues about the section 855.6 immunity arose again when defense

counsel proposed a jury instruction quoting the statute. In response, plaintiff’s counsel

asked the court before the lunch break on the sixth day of trial to look at Cleveland v. Taft

Union High School Dist. (2022) 76 Cal.App.5th 776 and the exception to the section

855.6 immunity when the examination was for the purpose of treatment.8 Plaintiff’s

counsel asserted: “The argument here is that it relates to treatment.” Read in the context

of the discussion about the proposed instruction, the word “it” means the examination the

officers made of plaintiff’s condition. Plaintiff’s argument impliedly gave a broad

interpretation to the statutory term “examination” by seeming to equate it to whatever

evaluation, assessment, or observations the officers made of plaintiff’s condition. The

argument also gave the phrase “for the purpose of” a broad interpretation by replacing it

with “relates to.” (See Webster’s 3d New Internat. Dict. (1993) p. 1916 [“relate” means

“to show or establish a logical or causal connection between”]; accord, Bay Cities Paving

& Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 873 [common

understanding of the word “related”].) Under plaintiff’s broad interpretation, the

immunity carve-out would cover examinations for the purpose of obtaining medical

treatment provided by others, not just for the purpose of personally providing the medical

treatment. To summarize, plaintiff argued on the sixth day of trial that the officers were

8 The exception appears at the beginning of section 855.6 and states: “Except for an

examination or diagnosis for the purpose of treatment .…” For purposes of this opinion,

we refer to this provision as the carve-out or immunity carve-out, rather than an

exception or exemption.

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not immune for performing an inadequate examination because their examination was for

purposes of treatment and, therefore, the immunity carve-out applied.

Defense counsel responded by arguing the immunity carve-out was for an actual

medical provider who examines someone and messes up the diagnosis and, in contrast,

law enforcement personnel are protected by the immunity because they are not trained to

diagnose. Accordingly, at that point of the proceedings, both sides had a theory about

how section 855.6 applied to the case. Defendants claimed they were protected by the

statutory immunity and plaintiff claimed they were not protected because the carve-out

applied.

After the lunch break, the trial court returned to the proposed instruction on the

section 855.6 immunity, stating it understood the “defense argument [was] that there

exists a claim in this case that may be a portion of plaintiff’s case constituting less than

the entirety, but there is a claim in the plaintiff’s case that Officer Lombardi and/or other

CHP officers failed to make an adequate physical or mental examination of [plaintiff]

and, therefore, the immunity instruction should be given. [¶] Is that the defense’s

position?”

Defense counsel replied, “essentially,” and then asserted the statutory immunity

had been interpreted broadly in Lucas v. City of Long Beach (1976) 60 Cal.App.3d 341

and if the defendants “failed to perceive that the plaintiff’s internal injuries were worse

than anybody at the accident scene thought they were, then immunity applies. That is a

factual scenario of this case.” Plaintiff’s counsel argued the statute was “more aimed

towards examination for mental conditions that cause a hazard to the person or others.

Not to treatment or diagnosis for purposes of treatment, which is a specific exemption

that would apply in this case.” Again, plaintiff did not assert the officer’s evaluation,

assessment, observations, or examination of his physical condition was not part of their

negligent or intentional misconduct, but asserted any examination done fell within the

carve-out and, thus, the immunity did not apply.

15.

After hearing these arguments from counsel, the court stated:

“The Court at this time is not prepared to say as a matter of law the

immunity does not apply. It’s also not prepared to say that as a matter of

law the immunity does apply. The Court’s inclined to allow the instruction

to be given and argued to the jury as to its application to the factual

circumstances of the case. [¶] And again, it is the Court’s view that the

immunity might only be effective as to part of plaintiff’s case but not the

entirety.”

The trial court proceeded to the next special instruction requested by defendants.

Here, we further define the context for the issues raised on appeal by describing what

plaintiff’s counsel did not do on the record. The record does not show they followed up

on the court’s comments and requested a limiting instruction explaining which part of the

misconduct alleged was or was not subject to the section 855.6 immunity.9 For example,

it does not appear that counsel requested the instruction be modified to state the immunity

was limited to negligent conduct involving the examination of plaintiff’s physical or

mental condition and the immunity did not protect officers from liability for other types

of negligent conduct. Also, despite having argued the carve-out applied, an instruction

clarifying the meaning of the carve-out’s phrase “an examination or diagnosis for the

purpose of treatment” (§ 855.6) was not requested on the record. As a result, the jury was

not told whether, as argued by defendants, the phrase “for the purpose of treatment” was

restricted to personnel who personally provided medical treatment and anyone else was

immune or, alternatively, whether the phrase had a broader meaning. For instance, one

interpretation is that “for the purpose of treatment” includes an examination of a detainee

for the purpose of determining how quickly medical treatment should be obtained. Under

that interpretation, an officer could not escape liability for an unreasonable delay in

9 A trial court is not obligated to give a limiting instruction except upon request.

(Daggett v. Atchison, T. & S. F. R. Co. (1957) 48 Cal.2d 655, 665–666.) Therefore, by

failing to request a limiting instruction, plaintiff forfeited any claim that one was

necessary to prevent the jury from being misled.

16.

delivering a detainee to medical professional by proving (1) the delay was caused by a

misunderstanding of the detainee’s injuries and (2) the misunderstanding was caused by

an unreasonable (i.e., inadequate or nonexistent) examination or assessment of the

detainee’s condition. !(Note: Based on what plaintiff has argued and omitted, this

opinion does not address those issues of statutory interpretation)!

b. Closing arguments

When closing arguments were made to the jury, the parties knew the trial court

was going to give the section 855.6 immunity instruction. During his initial closing

argument, plaintiff’s counsel did not address the instruction or the section 855.6

immunity. Rather, he argued the officers “were negligent, at best. They acknowledged

their negligence. [¶] Both officers said, if I had known then what I know now. He knew

then what he knows now. He knew [plaintiff] was hurt. They did nothing. All you need

to do is look at what they did when they got to the hospital.” Counsel stated the officers

did not rush in and get plaintiff care. Rather, “[t]hey got there and they waited the full

hour that they knew they had. [¶] The priority for Officer Chitty was folding his gloves

while [plaintiff] is agonizing in the backseat trying every approach possible to just get

[Officer Chitty] to let him out of the car.”

Defense counsel’s closing arguments reviewed the sequence of events that

occurred the night of the incident and emphasized that plaintiff made a series of choices

that had consequences, including the decisions to drink, to drive his motorcycle, and to

refuse medical care at the scene. With respect to decisions made by the officers, counsel

asserted they deferred to the judgment of the paramedic who released plaintiff at the

scene.

Defense counsel also addressed the punitive damages claim by asserting that

nothing Officer Lombardi did that morning amounted to fraud, oppression, or malice

because (1) Officer Lombardi was not empowered to overrule plaintiff’s decision to

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decline an ambulance, (2) plaintiff never told Officer Lombardi that he changed his mind,

and (3) Officer Lombardi ensured plaintiff was transported to Tehachapi Hospital where

he received prompt medical treatment for his injuries. Then, defense counsel addressed

how to apply the section 855.6 immunity by stating:

“Even if Mr. Soliz could prove his claims for intentional infliction of

emotional distress and negligence, which he cannot, Officer Lombardi and

the other CHP officers have no liability for not making a physical or mental

examination or making an inadequate physical or mental examination of

Mr. Soliz for the purpose of determining whether Mr. Soliz had a physical

or mental condition that was a hazard to the health or safety of himself or

others.”

“Please check jury instruction number S3. That immunity means that

Officer Lombardi and the other CHP officers are not liable if they did not

understand the seriousness of Mr. Soliz’s injuries. It also applies if they did

not understand the effects of Mr. Soliz’s intoxication on his ability to make

decisions.”

Plaintiff’s counsel did not object to this argument, did not assert it misstated the

law, and did not request the jury be admonished to correct any misstatement by defense

counsel.10 When plaintiff’s counsel presented his rebuttal argument, he said: “I’m going

to spend time responding to the things that counsel said.” He then addressed the

defense’s section 855.6 immunity argument, stating: “Counsel said that the officers

couldn’t be liable if they didn’t understand the injuries. That is why you get a person to a

hospital quickly. Because you don’t know the injuries. Something could have happened

-- they don’t get a pass because [plaintiff] was physically able to endure. But he didn’t

have to go through what he went through that night.” In effect, plaintiff’s counsel argued

the officers knew that they did not understand the extent of plaintiff’s injuries and, in

such a situation, it is unreasonable to delay getting the injured person to the hospital, such

10 To preserve a claim of attorney misconduct in a civil case for appellate review, an

appellant must show he or she (1) made a timely and proper objection on the record and

(2) requested the court to admonish the jury. (Horn v. Atchison, T. & S. F. R. Co. (1964)

61 Cal.2d 602, 610.)

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as the delay resulting from the traffic stop or from not taking plaintiff to the nearest

hospital.

Later, in rebuttal, plaintiff’s counsel came back to defense counsel’s argument

about the section 855.6 immunity, stating:

“You are the jury in this case. You are to take the facts that you have heard

in this case and apply the law without fear or anything of that nature. To

suggest that the officers aren’t liable if they didn’t understand is just a

specious argument and I don’t think there’s any basis for [it on] the facts of

this case.”

c. Defendants advanced a theory involving the immunity

The foregoing discussion clearly establishes that defendants advanced a theory of

the case during the trial in which the immunity played a role. The trial court’s denial of

defendants’ summary judgment motion because it was “not persuaded that section 855.6

immunity serves to bar Plaintiff’s claims as a matter of law” left open the possibility that

the immunity had some application. When defendants raised the immunity defense again

in their proposed jury instructions, plaintiff’s counsel’s arguments against the section

855.6 immunity instruction did not completely disavow or abandon the fourth amended

complaint’s allegation that each CHP officer had the duty “to exercise reasonable care

with respect to evaluating the need for and obtaining emergency medical care for

[plaintiff].” Rather, counsel argued the immunity for nonexistent or inadequate

examinations did not apply where the officers’ examination was for the purpose of

treatment. In other words, at that point during the trial, it appeared to defendants and the

trial court that plaintiff was still asserting defendants took too much time in getting

plaintiff to the hospital and took him to the wrong hospital because they negligently

“evaluat[ed] the need for … emergency medical care.”

Under the circumstances, defendants reasonably requested the section 855.6

immunity for nonexistent or inadequate mental and physical examinations be presented to

the jury. In other words, defendants’ theory that the immunity applied appeared to

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address one basis for plaintiff’s negligence claim. Further, in light of the approaches

taken by the parties during the discussion of the jury instructions, the trial court

reasonably concluded the immunity was relevant to a theory of the case that should be

presented to the jury. Accordingly, we conclude it was appropriate for the court to (1)

give the section 855.6 immunity instruction and (2) advise the parties that the immunity

might apply to part of the plaintiff’s case. (See fn. 8, ante.)

2. Evidentiary Support for the Application of the Immunity

Having determined the section 855.6 instruction addressed a theory of the case

advanced by defendants, we next consider whether that theory about the immunity’s

application was supported by substantial evidence. (See Soule v. General Motors Corp.,

supra, 8 Cal.4th at p. 572.)

We begin by noting defendants did not argue the choice of hospitals and the

decision to make the traffic stop was reasonable for officers who knew the detainee had a

collapsed lung. Rather, they asserted that they did not know plaintiff had a collapsed

lung and, due to this lack of knowledge, they acted reasonably under the circumstances.

Officer Lombardi testified about what he knew and did not know. He knew

Antelope Valley Hospital had a trauma center and Tehachapi Hospital did not, he was

aware of that fact at the time of the accident, and he was aware it would take less time to

get to Antelope Valley Hospital. When asked whether, looking back, it would have been

better to take plaintiff to Antelope Valley Hospital, Officer Lombardi responded: “Now

knowing what I know, that he had a punctured lung, it was either Antelope Valley

Hospital or Kern Medical Center” in Bakersfield. Later, when asked what he would have

done differently if he knew then what he knew now, Officer Lombardi replied that he

“would have taken him to the closest hospital,” which was Antelope Valley Hospital.

This testimony implies that the lack of haste in getting plaintiff to a hospital,

which included taking the time to stop a speeding motorist, not going to the nearest

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hospital, and filling out paperwork before taking plaintiff inside the hospital, was caused

by the officers’ lack of understanding of plaintiff’s injuries, which in turn was “caused by

the failure to make a physical or mental examination, or to make an adequate physical or

mental examination of [plaintiff]” as that language is used in section 855.6. We conclude

this theory of a root cause of some of the delay in getting plaintiff to a hospital is

supported by the evidence presented, including Officer Lombardi’s testimony. Stated

more generally, defendants presented substantial evidence to support their theory of the

case involving the application of the section 855.6 immunity to their conduct.

During oral argument, plaintiff asserted the immunity instruction should not have

been given because no evidence was presented that the officer made an examination of

plaintiff. This argument does not establish the immunity had no application to the

officers because the immunity applies to both “the failure to make a physical or mental

examination” and the failure “to make an adequate physical or mental examination.”

(§ 855.6.) Thus, the immunity could apply even in the absence of evidence that the

officers examined plaintiff. Further, though we recognize plaintiff has argued the

wrongful conduct for which he seeks to impose liability did not include an inadequate

exam or the failure to examine, plaintiff’s theory of the case is not the only theory

relevant to determining whether an instruction was appropriate under the circumstances.

(See pt. II.B.1.c., ante.)

In sum, defendants were entitled to a correct, nonargumentative jury instruction on

the section 855.6 immunity. (Cf. LeMons v. Regents of University of California (1978)

21 Cal.3d 869, 875 [“improper to give an instruction which lacks support in the

evidence”]; Harb, supra, 233 Cal.App.4th at p. 619.) Therefore, the trial court did not

commit instructional error in giving the immunity instruction. Further, the court did not

err by failing to give a clarifying or limiting instruction about the scope of the immunity.

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Such an instruction must be requested by a party. (See Daggett v. Atchison, T. & S. F. R.

Co., supra, 48 Cal.2d at pp. 665–666.)11

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

FRANSON, J.

WE CONCUR:

HILL, P. J.

FAIN, J.*

11 Below, plaintiff argued during the discussion of the jury instructions that the

immunity carve-out applied because the CHP officers’ examination was “for the purpose

of treatment.” (§ 855.6.) On appeal, plaintiff is no longer relying on the carve-out.

Consequently, we do not address whether the trial court should have (1) found as a matter

of law that the immunity carve-out applied to the CHP officers and (2) refuse to give the

section 855.6 immunity instruction based on the carve-out’s application.

* *Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

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