# Soliz v. California Highway Patrol CA5

> California Court of Appeal · May 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11061401

## Case

- **Court:** California Court of Appeal
- **Decided:** May 29, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

3.
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

4.
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.

5.
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

6.
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

9.
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

11.
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

13.
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.

14.
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

17.
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

20.
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11061401. Public record. Not legal advice.