Wedgeworth v. City of Newport Beach CA4/3

Filed 3/13/15 Wedgeworth v. City of Newport Beach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

SANDY WEDGEWORTH et al.,

Plaintiffs and Appellants, G048784

v. (Super. Ct. No. 30-2011-00493787)

CITY OF NEWPORT BEACH et al., ORDER MODIFYING OPINION AND

DENYING PETITION FOR

Defendants and Respondents. REHEARING; NO CHANGE IN

JUDGMENT

It is ordered that the opinion filed herein on February 11, 2015, be modified

as follows:

1. On pages 6 through 7, delete the entire five paragraphs commencing

with the second full paragraph on page 6 beginning with the words “The evidence that

plaintiff,” and continuing to the last paragraph of section I of the Discussion, and replace

them with the following paragraphs:

The evidence that plaintiffs claim they needed to oppose the motion for

summary judgment was certain documents from the City’s investigation file of the

incident. The trial court determined that these documents were privileged and therefore

were not required to be produced by defendants to plaintiffs. If the evidence was not

discoverable, the motion to continue the hearing in order to obtain the evidence was

properly denied. We therefore turn to the issue of the propriety of the court’s discovery

order.

In his third report, the discovery referee recommended that two documents

from the investigation file need not be produced because they were privileged. The court

approved the referee’s recommendation, and made the recommendation and report the

order of the court.

In his fifth report, the discovery referee recommended that the two

privileged documents be produced by defendants because defendants had waived the

attorney-client privilege that might have been applicable by (1) asserting in the 14th

affirmative defense to the first amended complaint that the City had fully investigated the

incident, and (2) the City attorney’s statement, as quoted in a local newspaper, ante. The

trial court sustained defendants’ objections to the fifth report: “Defendant City’s 14th

affirmative defense is not an affirmative defense. A showing that Defendant City

properly investigated the incident would not defeat Wedgeworth Plaintiffs’ claims, nor

would a showing that Defendant City concluded that the officers acted properly after its

investigation. As such, the so-called affirmative defense is immaterial and irrelevant. [¶]

The immaterial and irrelevant matter placed in Defendants’ answer should not serve [as]

a waiver of attorney client or work product privilege. Nor should the statement made by

[the City attorney] serve as a waiver of privilege. The statement did not disclose

anything of note.”

The trial court did not abuse its discretion in determining the attorney-client

privilege as to the two documents withheld from the investigation file had not been

waived by the assertion of the 14th affirmative defense, or by the City attorney’s

statement to the press. First, defendants waived the 14th affirmative defense. Second,

2

the court correctly found that the propriety of the postsuicide investigation was not an

affirmative defense to plaintiffs’ claims against defendants. Finally, the court correctly

found that neither the assertion of a proper investigation as an affirmative defense, nor a

statement by the City attorney that the investigation exonerated defendants, waived any

privilege or protection that applied to documents from the investigation file. Defendants

established that they produced all documents from the investigation file other than those

withheld on the grounds of privilege.

Because the evidence that plaintiffs claimed they needed to oppose the

motion for summary judgment was privileged, the trial court did not err in denying the

request to continue the hearing on the motion for summary judgment to enable plaintiffs

to obtain those documents.

There is no change in the judgment.

The petition for rehearing is DENIED.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

3

Filed 2/11/15 Wedgeworth v. City of Newport Beach CA4/3 (unmodified version)

NOT TO BE PUBLISHED IN 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

FOURTH APPELLATE DISTRICT

DIVISION THREE

SANDY WEDGEWORTH et al.,

Plaintiffs and Appellants, G048784

v. (Super. Ct. No. 30-2011-00493787)

CITY OF NEWPORT BEACH et al., OPINION

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County,

William M. Monroe, Judge. Affirmed.

Law Offices of Andrew A. Smits and Andrew A. Smits for Plaintiffs and

Appellants.

Ferguson, Praet & Sherman, Peter J. Ferguson, Allen Christiansen; Pollak,

Vida & Fisher and Daniel P. Barer for Defendants and Respondents.

* * *

INTRODUCTION

William Robert Wedgeworth (William) committed suicide while in the

custody of the Newport Beach Police Department. William’s wife, Sandy Wedgeworth

(Sandy), and William’s three surviving children (collectively, plaintiffs), sued the City of

Newport Beach (the City) and several individual police officers (collectively, defendants)

for negligence, wrongful death, and failure to obtain medical care for a prisoner. The

trial court granted summary adjudication on two causes of action, and entered judgment

on the pleadings on a third cause of action, in favor of defendants and against plaintiffs.

We affirm. Defendants established by admissible evidence that, on this

record and in view of the applicable provisions of the Government Code, no duty existed

to summon immediate medical care for William to prevent him from committing suicide.

Plaintiffs did not raise a triable issue of material fact in opposition to the motion for

summary adjudication. The trial court correctly granted the motion for summary

adjudication, and the motion for judgment on the pleadings without leave to amend.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On July 31, 2010, William was agitated, yelling, sweating profusely, and

red in the face. He was forcing Sandy’s hand into a fist and hitting himself in the face

with her fist. Sandy called 911 to obtain medical care for William; she described him as

“having another one of his crazy episodes.”

Sandy reported William’s behavior and a prior Welfare and Institutions

Code section 5150 commitment to the 911 operator, and the police dispatchers provided

the information by broadcast. Officers Matthew Wood, Sam Sa, and Spencer Arnold

responded to William and Sandy’s house. Officer Sa met with Sandy; Sandy advised

Officer Sa of William’s history of mental illness, prior section 5150 hold, and need for

medication. Sergeant Arnold suspected William was under the influence of drugs.

2

The officers arrested William for domestic violence. Officer Jonathan

Sunshine transported William to the jail in the basement of the police station. The

arresting officers did not tell Officer Sunshine about their observations of William, the

information regarding his prior Welfare and Institutions Code section 5150 hold, or his

other contacts with the police.

When Officer Sunshine delivered William to the City’s police department

jail, he told the custody officers, Gerald Faludi and Diane Harris, that William had said

his hands and feet were deadly weapons, and that William was a “5149” or “5149 and a

half,” meaning someone who appears mentally ill.

Officer Faludi took custody of William, inventoried his personal property,

and prepared the booking paperwork. Officer Daran Kanbara performed a cursory

medical screening of William. Officer Harris placed bed sheets in William’s cell, and

locked William in the cell about 6:00 p.m. Officer Harris did not place William in a

safety cell, which is used for inmates who might be a danger to themselves. William was

the only arrestee in the jail at that time.

The custody officers performed welfare checks on William once per hour

while he was in his cell. William was found dead in his cell at approximately 10:00 p.m.,

having hung himself with his bed sheets.

A complaint was filed against the City and the officers involved in

William’s arrest and detention, seeking damages for wrongful death (first cause of

action), negligence (second cause of action), and failure to obtain medical care for a

prisoner (third cause of action).

Defendants filed a motion for summary judgment or, in the alternative,

summary adjudication. The trial court granted the motion for summary adjudication as to

the first and third causes of action, and treated the motion for summary adjudication of

the second cause of action as a motion for judgment on the pleadings, which was granted

without leave to amend. Judgment was entered, and plaintiffs timely appealed.

3

DISCUSSION

I.

MOTION TO CONTINUE

In their opposition to the motion for summary judgment, plaintiffs argued

the trial court should deny or continue the hearing on the motion to enable plaintiffs to

obtain essential evidence that might exist but could not then be presented. The trial court

denied the request.

“To mitigate summary judgment’s harshness, the statute’s drafters included

a provision making continuances—which are normally a matter within the broad

discretion of trial courts—virtually mandated ‘“upon a good faith showing by affidavit

that a continuance is needed to obtain facts essential to justify opposition to the motion.”

[Citation.]’ [Citation.]” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) If

the declaration or affidavit does not establish the need for a mandatory continuance, the

trial court must exercise its discretion to determine whether good cause for a continuance

has been shown. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715-716.)

Plaintiffs’ counsel’s declaration supporting the request for a continuance of

the summary judgment motion hearing reads, in relevant part, as follows:

“32. I am informed and believe that there is a likelihood that controverting

evidence may exist and is essential to opposing Defendants’ motion for summary

judgment or summary adjudication. There apparently exists an investigation file

maintained by the Defendants that may include essential evidence regarding the

following: Defendants’ knowledge of Mr. Wedgeworth’s mental illness; Defendants’

willful, reckless or negligent disregard for Mr. Wedgeworth’s health while he was in their

care and custody; Defendants’ failure to follow their own policies and procedures when

detaining Mr. Wedgeworth, among other things. Defendants’ investigation file is in issue

4

in this action. Defendants have answered the [first amended complaint] by including a

Fourteenth Affirmative Defense that provides as follows:

“‘These answering Defendants allege that this incident was properly

investigated and that the acts of all Defendants were in accordance with proper policies

and all legal standards (emphasis added).’

“Defendants’ Answer to [the] First Amended Complaint and Affirmative

Defenses is dated November 28, 2012. In addition, Defendants have made

representations to the public that they have conducted a thorough investigation into

Mr. Wedgeworth’s death and their investigation shows that . . . there was no wrong-doing

on their part. At least one such public declaration appeared in the local Daily Pilot

newspaper dated January 27, 2011. Defendant’s City Attorney stated the following:

“‘ . . . This is a sad and tragic loss, said Newport Beach City Atty. David

Hunt. “We take it very seriously, and we’ve done a thorough investigation into the

circumstances underlying it. We concluded there was nothing we could’ve done to

prevent it. The jail is safe, and our officers did their job correctly.” (emphasis added)’

“33. Having made these representations to the Court, Plaintiffs and the

general public, Defendants refuse to produce their investigation file to Plaintiffs.

Plaintiffs propounded a document demand and brought a motion to compel production of

the investigation file on December 13, 2012. On January 28, 2013, the Discovery

Referee recommended granting Plaintiffs’ motion. However, Defendants still refuse to

produce their investigation file. In fact, Defendants have challenged the Referee’s Fifth

Recommendation to grant Plaintiffs’ motion to compel. Defendants brought an ex parte

application challenging the Referee’s Recommendation on Wednesday, January 30, 2013.

The Court continued the hearing on Defendants’ application to February 21, 2013, the

day of the hearing on this motion. Plaintiffs oppose Defendants’ application and

maintain they are entitled to the entire file, which is core evidence for trial regarding

Defendants’ Fourteenth Affirmative Defense.

5

“34. Plaintiffs await a ruling on this latest effort by Defendants to withhold

production of their investigation file. Assuming the Court adopts the Discovery

Referee’s Recommendations, it may be at least four to six weeks before Plaintiffs obtain

the file and obtain any follow up discovery, such as depositions concerning the file. A

continuance of the hearing on Defendants’ summary adjudication motion will allow

Plaintiffs an opportunity to complete this discovery regarding Defendants’ investigation

file and fourteenth affirmative defense. The discovery bears directly on the issues

presented in Defendants’ summary adjudication motion and will be used in opposing the

motion.” (Boldface omitted.)

The evidence that plaintiffs claim they needed to oppose the motion for

summary judgment was the City’s investigation file of the incident. The trial court

determined that the investigation file was privileged and therefore was not required to be

produced by defendants to plaintiffs. If the evidence was not discoverable, the motion to

continue the hearing in order to obtain the evidence was properly denied. We therefore

turn to the issue of the propriety of the court’s discovery order.

In his third report, the discovery referee recommended that the investigation

file not be produced because it was privileged. The court approved the referee’s

recommendation, and made the recommendation and report the order of the court.

In his fifth report, the discovery referee recommended that the investigation

file be produced by defendants because they had waived the attorney-client privilege that

might have been applicable to the investigation file by (1) asserting in the 14th

affirmative defense to the first amended complaint that the City had fully investigated the

incident, and (2) the City attorney’s statement, as quoted in a local newspaper, ante. The

trial court sustained defendants’ objections to the fifth report: “Defendant City’s 14th

affirmative defense is not an affirmative defense. A showing that Defendant City

properly investigated the incident would not defeat Wedgeworth Plaintiffs’ claims, nor

would a showing that Defendant City concluded that the officers acted properly after its

6

investigation. As such, the so-called affirmative defense is immaterial and irrelevant. [¶]

The immaterial and irrelevant matter placed in Defendants’ answer should not serve [as]

a waiver of attorney client or work product privilege. Nor should the statement made by

[the City attorney] serve as a waiver of privilege. The statement did not disclose

anything of note.”

The trial court did not abuse its discretion in determining the attorney-client

privilege as to the investigation file had not been waived by the assertion of the 14th

affirmative defense, or by the City attorney’s statement to the press. First, defendants

waived the 14th affirmative defense. Second, the court correctly found that the propriety

of the postsuicide investigation was not an affirmative defense to plaintiffs’ claims

against defendants. Finally, the court correctly found that neither the assertion of a

proper investigation as an affirmative defense, or a statement by the City attorney that the

investigation exonerated defendants, waived any privilege or protection that applied to

the investigation file.

Because the evidence that plaintiffs claimed they needed to oppose the

motion for summary judgment was privileged, the trial court did not err in denying the

request to continue the hearing on the motion for summary judgment to enable plaintiffs

to obtain the investigation file.

II.

MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

A.

Standard of Review

We review an order granting summary adjudication de novo. (Saelzler v.

Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum

(2002) 101 Cal.App.4th 26, 35.) A motion for summary adjudication is properly granted

if the moving papers establish there is no triable issue of material fact as to a cause of

7

action, an affirmative defense, or the existence of or lack of a duty, and the moving party

is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f);

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “To prevail on the motion,

a defendant must demonstrate the plaintiff’s cause of action has no merit. This

requirement can be satisfied by showing either one or more elements of the cause of

action cannot be established or that a complete defense exists. [Citations.] If the

defendant meets this requirement, the burden shifts to the plaintiff to demonstrate a

triable issue of material fact exists. [Citations.]” (We Do Graphics, Inc. v. Mercury

Casualty Co. (2004) 124 Cal.App.4th 131, 135-136.)

The court’s order granting judgment on the pleadings is also reviewed

de novo. (Sheppard v. North Orange County Regional Occupational Program (2010)

191 Cal.App.4th 289, 296-297.) Judgment on the pleadings should not be granted if there

is a reasonable possibility that a defect in the complaint can be cured by amendment.

(Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118; La Jolla Village Homeowners’

Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1141.) The burden of proving a

reasonable possibility of amendment is on the plaintiff. (Blank v. Kirwan (1985) 39

Cal.3d 311, 318.) We review the trial court’s decision to grant the motion for judgment

on the pleadings without leave to amend for abuse of discretion. (Bardin v.

DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1277.)

B.

Existence of a Duty

All of plaintiffs’ causes of action—wrongful death, negligence, and

negligent violation of the duty to obtain medical care for a prisoner—sound in tort. The

first questions are therefore whether defendants owed a duty to plaintiffs and, if so, the

nature of that duty.

8

The Government Claims Act, Government Code section 810 et seq., limits

the instances for which a public entity may be held liable for injury caused by it or by one

of its employees. (All further statutory references are to the Government Code, unless

otherwise specified.) Specifically, the City is immune from any lawsuits alleging injury

to a prisoner, unless the facts of the case fall within certain specified exceptions:

“(a) Notwithstanding any other provision of this part, except as provided in this section

and in Section[] . . . 845.6 . . . , a public entity is not liable for: [¶] . . . [¶] (2) An injury

to any prisoner. [¶] . . . [¶] (d) Nothing in this section exonerates a public employee from

liability for injury proximately caused by his negligent or wrongful act or omission.”

(§ 844.6, subds. (a), (d).) As used in section 844.6, “injury” includes death. (Lowman v.

County of Los Angeles (1982) 127 Cal.App.3d 613, 615-616.)

The principal focus of each of plaintiffs’ negligence-based causes of action

is defendants’ failure to summon medical care for William. Section 845.6 provides

immunity to both the public entity and its employees for “injury proximately caused by

the failure of the employee to furnish or obtain medical care for a prisoner in his

custody,” unless the public 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.” (§ 845.6.)

“Section 845.6 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 employees’ malpractice in providing that care. . . . Thus, section 845.6

creates out of the general immunity a limited cause of action against a public entity for its

employees’ failure to summon immediate medical care only. [Citation.]” (Castaneda v.

Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1070.)

“Liability under section 845.6 is limited to serious and obvious medical

conditions requiring immediate care. [Citations.]” (Watson v. State of California (1993)

21 Cal.App.4th 836, 841; see Lucas v. City of Long Beach (1976) 60 Cal.App.3d 341,

9

349-350 [prisoner who exhibited symptoms of intoxication during booking process did

not require immediate medical care, so public entity was not liable for prisoner’s suicide

in jail cell].)

Whether a public employee knows of a prisoner’s need for immediate

medical care and whether the employee’s actions in summoning or failing to summon

medical care were reasonable are generally factual questions for a jury. (Castaneda v.

Department of Corrections & Rehabilitation, supra, 212 Cal.App.4th at p. 1073; Zeilman

v. County of Kern (1985) 168 Cal.App.3d 1174, 1184-1187 [triable issue of material fact

existed regarding county’s liability under section 845.6, so summary judgment reversed];

Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 317 [error to sustain

demurrer on section 845.6 claim]; Hart v. County of Orange (1967) 254 Cal.App.2d 302,

307-309 [affirming jury verdict in favor of heirs in wrongful death action because

substantial evidence supported jury’s finding that county was not immune from

liability].) We therefore consider whether defendants established, as a matter of law, that

plaintiffs could not prove this element of the claim.

Defendants offered in evidence the declarations of all the officers involved

in arresting, transporting, and jailing William on July 31, 2010. Each of those declarants

attested that he or she did not know or have reason to know William was in need of

medical care, much less immediate medical care, at any time that day, and did not know

or have reason to know of any suicidal ideation on William’s part. The intake screening

form completed by Officer Kanbara noted that William responded in the negative when

asked whether he had ever tried to harm himself or take his own life, was currently

thinking of harming himself, was receiving psychological treatment, or had any medical

problems the police needed to know about. Officer Kanbara’s declaration stated that

William did not appear upset during the intake screening, and was cooperative in

answering all the questions.

10

Did plaintiffs offer admissible evidence creating a triable issue of material

fact? Plaintiffs’ conclusory responses to defendants’ separate statements of disputed

material facts read, in relevant part, “[t]here were indications that Mr. Wedgeworth was

suicidal or had suicidal tendencies while in the presence of Def[endants] Arnold, Wood,

Sa or Sunshine prior to being transported to the jail on July 31, 2010. Def[endant]

Sunshine described Mr. Wedgeworth as a ‘5149.’ Def[endants] observed

Mr. Wedgeworth’s mental illness behaviors and were informed of it by NBPD

dispatchers and Mrs. Wedgeworth. Def[endants] had records of Mr. Wedgeworth’s

history of prior contacts with NBPD involving mental illness, a prior 5150 committal

[sic], suicide attempts and ideations.” Plaintiffs offered the following evidence in

disputing defendants’ separate statements:

(1) Transcriptions of dispatch calls regarding the incident at Sandy and

William’s home on July 31, 2010, in which: (a) Sandy informs the 911 operator that

William was “having another one of his crazy episodes,” had “been 5150’d before,” had a

“borderline personality disorder,” and was “just crazy”; (b) the police dispatcher informs

the officers the 911 caller’s husband was “acting strangely, has some sort of disorder”;

(c) the police dispatcher tells the fire department a female called to report “her husband is

acting strangely,” and “bipolar behavior and all there previously”; (d) the police

dispatcher advises responding officers, “William has priors for 245, 243, and 415 as well

and a CII per loc info . . . . Bipolar behavior”; and (e) the police dispatcher advises the

responding officers that in a previous call, William had told the officers his hands and

feet were deadly weapons.

(2) An arrest report prepared by Officer Wood, reading in relevant part as

follows: “The male seemed extremely agitated. He had a very red face and was sweating

profusely. He was difficult to talk to because he continued to yell about his children and

how his wife didn’t get the air fixed in her car. . . . [¶] . . . When Sgt. Arnold began to

walk inside the residence to check on Officer Sa, Wedgeworth became increasingly

11

agitated and asked him not to go into his house. He began yelling for his kids to come

outside. He yelled that he would have to move out of the neighborhood and sell his

house. He yelled that his children were being traumatized because the police were in his

house. Sgt. Arnold informed Wedgeworth that he was going inside to check on the other

Officer. I had to redirect Wedgeworth’s attention to me in order to calm him down.

When Sgt. Arnold returned about 1 minute later, Wedgeworth made the statement, ‘My

hands and feet are lethal weapons. I was trained to kill with one punch. One time, my

wife was making me angry and I punched the bed post and broke it. I told her that is

what would happen to a man if I punched him.’ [¶] . . . [¶] . . . I asked him if he was ill or

injured. He stated he was not. I asked him if he had any psychological issues for which

he took medications. He told me he was supposed to be taking medications, but was not.

I asked him what medication he was supposed to take and he did not answer me. [¶] . . .

[¶] . . . He also stated that the camera would not photograph his real injuries. Sgt. Arnold

asked him what he meant and he stated he had emotional injuries.”

(3) A report prepared by Officer Faludi reading, in relevant part:

“Wedgeworth brought into NBPD Jail by Ofc. Sunshine on 7/31/2010 . . . . At that time,

Ofc. Sunshine mentioned to me that Wedgeworth was ‘5149’ and that he had stated his

hands and feet are deadly weapons and they could kill someone in one second. I relayed

this information to Ofcs. Harris and Kanbara as a matter of officer safety. . . . My contact

with him lasted no more than 15 seconds and he did not say anything to me at that time.

I did not notice anything unusual about Wedgeworth’s demeanor.”

(4) A records check form prepared when William was booked at the City’s

jail that showed he was committed under Welfare and Institutions Code section 5150 in

2009, and had been arrested for violating Penal Code section 245 (assault with a deadly

weapon) in 2003.

12

(5) A coroner’s report, noting, in relevant part, that the coroner was advised

by police personnel that William “had a medical history of hypertension, bipolar disorder,

explosive anger disorder, and multiple suicidal ideations with previous 5150 contacts.”

(6) The police department’s policy regarding prisoner suicide prevention,

which reads: “Any prisoner displaying suicidal behavior or deemed a suicide risk will be

transported to Orange County Jail . . . or a Psychiatric Assessment Center

IMMEDIATELY. [¶] . . . At the time of receiving, the Custody Officer on duty should

be alert to any symptoms that may indicate that a prisoner is a suicide risk. These

symptoms include depression, refusal to communicate, verbally threatening to kill or hurt

himself/herself, or any unusual behavior that may indicate that the prisoner may harm

himself/herself while in custody. [¶] . . . The Custody Officer should notify the Watch

Commander at intake if he/she feels the prisoner might be a suicide risk. The Watch

Commander will arrange the transfer of the prisoner to Orange County Jail . . . or a

Psychiatric Assessment Center. [¶] . . . If it becomes necessary to confine the prisoner

while awaiting transportation and the prisoner is not combative or exhibiting bizarre

behavior, the prisoner should be housed in a cell with another prisoner. Otherwise, the

prisoner should be housed in the Safety Cell with monitor until transportation to one of

the facilities. [¶] . . . The Custody Officer should make an entry on the prisoner’s

‘Pre-Booking Medical Screening Form’ and ‘Custody and Identification Report’ (Post-It

Note) indicating that the prisoner is a ‘suicide risk.’ The Custody Officer will make a

physical check on the prisoner at least every fifteen (15) minutes or more and record it on

the ‘Inspection Log/Safety Cell Log.’” (Newport Beach Police Department, Jail

Operations Manual (Sept. 2011) Medical Treatment Bookings, § 405.)

None of the foregoing evidence offered by plaintiffs showed William was

suicidal or had suicidal tendencies or ideations, or that defendants had any more

information about William’s prior mental state than that, at some point in the past, he had

been subjected to a Welfare and Institutions Code section 5150 hold. Plaintiffs also filed

13

a separate statement of additional undisputed material facts in opposition to the motion

for summary judgment. That separate statement, however, did not cite any new or

different evidence than referenced ante, that would be relevant to the issue whether any

of defendants knew or had reason to know William was in need of immediate medical

care.

Having reviewed the appellate record de novo, we conclude plaintiffs failed

to raise a triable issue of material fact regarding whether defendants knew or had reason

to know William was in need of immediate medical care. While the evidence clearly

shows William was at least emotionally disturbed and possibly suffering from a mental

illness, this does not mean he was necessarily suicidal or in need of immediate medical or

psychological care.

Plaintiffs also alleged in the first amended complaint that defendants were

negligent by failing to make regular welfare checks on William in his jail cell.

Defendants offered admissible evidence that they made hourly welfare checks as required

by California Code of Regulations, title 15, section 1027,1 which plaintiffs do not dispute.

Plaintiffs contend that a duty to William arose on the part of defendants

pursuant to sections 1052, 1055, and 1209 of title 15 of the California Code of

Regulations.2 These sections do not apply because plaintiffs did not offer any admissible

1

California Code of Regulations, title 15, section 1027 provides, in

relevant part: “A sufficient number of personnel shall be employed in each local

detention facility to conduct at least hourly safety checks of inmates through direct visual

observation of all inmates and to ensure the implementation and operation of the

programs and activities required by these regulations. There shall be a written plan that

includes the documentation of routine safety checks.”

2

California Code of Regulations, title 15, section 1052 provides: “The

facility administrator, in cooperation with the responsible physician, shall develop written

policies and procedures to identify and evaluate all mentally disordered inmates. If an

evaluation from medical or mental health staff is not readily available, an inmate shall be

considered mentally disordered for the purpose of this section if he or she appears to be a

danger to himself/herself or others or if he/she appears gravely disabled. An evaluation

from medical or mental health staff shall be secured within 24 hours of identification or

14

evidence that William appeared to be a danger to himself or others or that he displayed

behavior revealing an intent to cause physical harm to himself or others. The evidence

that William told the police officers his hands and feet were deadly weapons does not

show he had an intent to cause himself or others physical harm. Given the number of

police officers who interacted with William on July 31, 2010, if he had any intent to use

at the next daily sick call, whichever is earliest. Segregation may be used if necessary to

protect the safety of the inmate or others.” (Italics added.)

California Code of Regulations, title 15, section 1055 provides: “The

safety cell described in Title 24, Part 2, Section 1231.2.5, shall be used to hold only those

inmates who display behavior which results in the destruction of property or reveals an

intent to cause physical harm to self or others. The facility administrator, in cooperation

with the responsible physician, shall develop written policies and procedures governing

safety cell use and may delegate authority to place an inmate in a safety cell to a

physician. [¶] In no case shall the safety cell be used for punishment or as a substitute for

treatment. [¶] An inmate shall be placed in a safety cell only with the approval of the

facility manager, the facility watch commander, or the designated physician; continued

retention shall be reviewed a minimum of every eight hours. A medical assessment shall

be completed within a maximum of 12 hours of placement in the safety cell or at the next

daily sick call, whichever is earliest. The inmate shall be medically cleared for continued

retention every 24 hours thereafter. A mental health opinion on placement and retention

shall be secured within 24 hours of placement. Direct visual observation shall be

conducted at least twice every thirty minutes. Such observation shall be documented. [¶]

Procedures shall be established to assure administration of necessary nutrition and fluids.

Inmates shall be allowed to retain sufficient clothing, or be provided with a suitably

designed ‘safety garment,’ to provide for their personal privacy unless specific

identifiable risks to the inmate’s safety or to the security of the facility are documented.”

(Italics added.)

California Code of Regulations, title 15, section 1209, subdivision (b)

provides: “Unless the county has elected to implement the provisions of Penal Code

Section 1369.1, a mentally disordered inmate who appears to be a danger to himself or

others, or to be gravely disabled, shall be transferred for further evaluation to a

designated Lanterman Petris Short treatment facility designated by the county and

approved by the State Department of Mental Health for diagnosis and treatment of such

apparent mental disorder pursuant to Penal Code section 4011.6 or 4011.8 unless the jail

contains a designated treatment facility. Prior to the transfer, the inmate may be

evaluated by licensed health personnel to determine if treatment can be initiated at the

correctional facility. Licensed health personnel may perform an onsite assessment to

determine if the inmate meets the criteria for admission to an inpatient facility, or if

treatment can be initiated in the correctional facility.” (Italics added.)

15

his hands and feet as deadly weapons, he had plenty of opportunities to do so. Even if

those “threats” were real, not every threat of violence against an arresting police officer

can justify treating the prisoner as mentally disturbed.

Plaintiffs also contend that the police department’s policy manuals, which

require that welfare checks on mentally disordered detainees be performed twice every

30 minutes, create a duty that defendants breached. The police department’s policy

manuals cannot create a duty of care because there is no evidence they were passed by

the Legislature or adopted pursuant to the Administrative Procedure Act (§ 11340 et

seq.). (Evid. Code, § 669.1; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703,

720-721; Strong v. State of California (2011) 201 Cal.App.4th 1439, 1451-1452.)3

At the hearing on the motion for summary judgment, when the court

announced it would treat the motion for summary adjudication of the second cause of

action as a motion for judgment on the pleadings, plaintiffs requested leave to amend the

first amended complaint: “Well, if the court is treating it as a motion for judgment on the

pleadings, then plaintiffs request leave to amend. And we certainly can do so showing all

the duties that are set forth in the policy manual and the breaches as set forth in our

abundance of evidence submitted to the court and cited in our plaintiffs’ separate

statement.” As explained ante, however, the police department’s policy manuals cannot

create a duty of care.

The trial court did not abuse its discretion by denying the request for leave

to amend. The court did not err in granting the motion for summary adjudication of the

first and third causes of action.

3

The policy manuals would be admissible to prove breach of an existing

duty, however. (Lugtu v. California Highway Patrol, supra, 26 Cal.4th at pp. 720-721;

Strong v. State of California, supra, 201 Cal.App.4th at pp. 1451-1452; Minch v.

Department of California Highway Patrol (2006) 140 Cal.App.4th 895, 908.)

16

Neither Giraldo v. Department of Corrections & Rehabilitation (2008) 168

Cal.App.4th 231 (Giraldo) nor Lum v. County of San Joaquin (E.D.Cal. 2010) 756

F.Supp.2d 1243, both cited by plaintiffs, requires a different result. In Giraldo, the

plaintiff prisoner, a transgender inmate who identified herself as female, was repeatedly

beaten and raped by her male cellmate, despite her complaints to prison officials.

(Giraldo, supra, at p. 237.) Among other claims, the plaintiff sued for negligence.

(Ibid.) The trial court sustained a demurrer to the negligence cause of action because

there was no special relationship between a prisoner and a jailer, and therefore no duty

arose. (Id. at pp. 237, 242.) The appellate court reversed the trial court’s order sustaining

the demurrer: “[T]here is a special relationship between jailer and prisoner which

imposes a duty of care on the jailer to the prisoner.” (Id. at pp. 252-253.) Giraldo did

not address the issue which is presented here—whether the immunity created by

section 845.6 prevents liability from defendants to plaintiffs under the circumstances of

this case. The demurrer in Giraldo had also raised the issue of the immunity of the

defendants (id. at p. 241), but the trial court apparently did not reach the issue, and the

appellate court did not address it. Moreover, Giraldo addressed only the propriety of

sustaining a demurrer based on the face of the plaintiff’s complaint, and did not test the

evidence supporting the plaintiff’s claims. Therefore, Giraldo is of limited use in our

review of the present case.

In Lum v. County of San Joaquin, supra, 756 F.Supp.2d at page 1246, the

decedent was arrested and held in the San Joaquin County Jail. While the decedent was

in the jail, the police officers observed the decedent having hallucinations and suffering a

seizure. (Id. at pp. 1246-1247.) The defendant police officers released the decedent

about six hours after his arrest, without ever obtaining medical treatment or a medical or

psychological evaluation of him. (Id. at p. 1247.) Several days later, the decedent’s body

was found in the San Joaquin River; he had drowned. (Ibid.) The decedent’s parents

sued the county, the city, and the individual police officers for, among other things,

17

wrongful death. (Id. at p. 1253.) The district court denied the defendants’ motion to

dismiss the wrongful death claim on the ground a special relationship existed between a

jailer and a prisoner. (Id. at pp. 1254-1255.) As with Giraldo, the motion considered

only whether the claim for relief could be dismissed as a matter of law, and did not

consider whether the undisputed material facts showed the plaintiffs could not establish

their claim. And, also like Giraldo, the district court in Lum did not consider the

immunity created by section 845.6.

Further, the out-of-state cases cited by plaintiffs regarding a duty to prevent

prisoner suicides are not binding on this court, and are contrary to California statutory

and decisional law.

C.

Judgment on the Pleadings

The trial court treated the motion for summary adjudication of the second

cause of action as a motion for judgment on the pleadings, and granted it. The court

concluded that plaintiffs’ cause of action for negligence was the same as their cause of

action for wrongful death caused by negligence. The court also noted that to the extent

plaintiffs intended to assert the negligence cause of action as a survival action on

William’s behalf, they had failed to comply with the notice of claims procedures of Code

of Civil Procedure section 377.32.

Plaintiffs argue that the trial court erred in granting the motion because

(1) the negligence cause of action was based on section 815.2, which makes public

entities vicariously liable for their employees’ negligence, and (2) plaintiffs, as William’s

wife and children, are in a class of persons who are the reasonably foreseeable victims of

defendants’ negligence. Plaintiffs fail to show how the lack of a duty under section 845.6

can be overcome, no matter who the plaintiffs are, or whether the public entity or its

18

employees committed the allegedly negligent acts or omissions. The court did not err in

granting the motion for judgment on the pleadings of the second cause of action.

Plaintiffs also argue that the trial court abused its discretion by failing to

grant them leave to amend their complaint. In the trial court, plaintiffs requested leave to

amend to allege the duties they claimed were created by the police department’s policy

manuals. As explained, ante, there is no evidence the manuals were passed by the

Legislature or adopted pursuant to the Administrative Procedure Act, and, therefore, they

cannot create a duty that would supersede the grant of immunity under section 845.6.

(Evid. Code, § 669.1; Lugtu v. California Highway Patrol, supra, 26 Cal.4th at

pp. 720-721; Strong v. State of California, supra, 201 Cal.App.4th at pp. 1451-1452.)

The trial court did not abuse its discretion in denying the request for leave to amend.

D.

Additional Arguments

Plaintiffs argue the motion for summary judgment and/or summary

adjudication was procedurally defective because each defendant filed a separate

statement of undisputed material facts, rather than filing one single statement. Code of

Civil Procedure section 437c, subdivision (b)(1) does not preclude multiple parties from

filing their own separate statements, and any party joining another’s motion for summary

judgment must file his, her, or its own separate statement. (Frazee v. Seely (2002) 95

Cal.App.4th 627, 636.) The individual separate statements filed by each defendant did

not violate Code of Civil Procedure section 437c, subdivision (b)(1).

Plaintiffs contend that the notice of the motion for summary judgment

and/or summary adjudication was defective because it failed to repeat each of the issues

on which summary adjudication was sought 12 separate times to address the 12 separate

statements of undisputed material facts. The notice addressed each cause of action and

each issue on which summary adjudication was sought, and was proper.

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Plaintiffs also argue the summary judgment motion should have been

denied because it was based on the same arguments defendants raised in two earlier filed

demurrers. We reject outright any contention that a trial court’s order overruling a

demurrer bars a later summary judgment motion raising the same or a similar argument.

DISPOSITION

The judgment is affirmed. In the interests of justice, no party shall recover

costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

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