Julian v. Mission Community Hospital

Filed 5/2/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KATIA JULIAN, B263563

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. LC100529)

v.

MISSION COMMUNITY

HOSPITAL et al.,

Defendants and

Respondents.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Frank J. Johnson, Judge. Affirmed.

Law Office of Gary Brown and Gary Brown for Plaintiff and

Appellant.

Cole Pedroza, Kenneth R. Pedroza, E. Todd Chayet;

Reback, McAndrews, Kjar, Warford & Stockalper, Thomas F.

McAndrews and Tracy D. Hughes for Defendants and

Respondents Mission Community Hospital and Deanco

Healthcare, LLC.

Bonne, Bridges, Mueller, O’Keefe & Nichols, David J.

O’Keefe, Thomas M. O’Neil, Michael Vincent Ruocco and Gary

Dennis for Defendant and Respondent Abdul Shirazi, M.D.

Lynberg & Watkins, Gary A. Bacio and Christopher P.

Bates for Defendants and Respondents Los Angeles Unified

School District, Los Angeles Unified School Police, Libier

Valencia, Yvonne Miranda, Elizabeth Lara, Jose Cardenas, and

Robert Taylor.

INTRODUCTION

This action arises out of a series of events that began at a

Los Angeles middle school, where Katia Julian taught

mathematics, and ended at Mission Community Hospital, where

Julian was involuntarily detained for mental health evaluation

and treatment. After her release, Julian sued the Los Angeles

Unified School District (LAUSD), the Los Angeles Unified School

Police (LAUSP), and five individual police officers (collectively,

the school defendants) who detained her and helped transport

her to the hospital. She alleged the school defendants did not

have probable cause under Welfare and Institutions Code section

5150 to detain her.1 Julian also sued the hospital (Mission

Community Hospital), its owner (Deanco Healthcare, LLC), and

the physician who treated her there (Dr. Abdul Shirazi)

1 Undesignated statutory references are to the Welfare and

Institutions Code.

2

(collectively, the hospital defendants), alleging they lacked

probable cause to continue to detain her and to admit her to the

hospital where she spent one night before she was released the

next day.

Julian’s operative third amended complaint sought

monetary damages for various alleged violations of the

Lanterman-Petris-Short Act (section 5000 et seq.) (the Act) and of

her civil rights under the federal and state constitutions. The

trial court sustained the hospital defendants’ demurrers to

Julian’s third amended complaint and granted the school

defendants’ motion for summary judgment.

We conclude there is no private right of action for the

violations of the Act Julian alleged. We also conclude the school

district and the school police are immune from liability under

Title 42 United States Code section 1983 (section 1983), the

individual officers are entitled to qualified immunity, the hospital

and physician are not state actors for purposes of Julian’s section

1983 claims, most of the provisions of the California Constitution

Julian invoked do not create causes of action for damages, and

Julian failed to state a claim for violations of those provisions

that might provide such a cause of action. Finally, because the

hospital defendants are not state actors for purposes of section

1983, they cannot be liable for Julian’s alleged violations of the

California Constitution. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The School Police Detain Julian

On May 1, 2012 Julian attended a mathematics

department meeting in a classroom at the middle school where

3

she taught.2 Julian claimed that at the end of the meeting

another teacher “physically assaulted” her by grabbing her hand

as she tried to close the door to the classroom. Julian reported

the alleged assault to the school’s principal, Nidia Castro, who

told Julian she would report the incident to the school police.

Julian asked Castro not to report the incident to the school police

because, as Castro knew, Julian had “a severe nervous reaction”

to the school police stemming from earlier incidents. Castro also

knew Julian had a “seizure disorder that was exacerbated by

extreme stress.”

That evening Castro received a text message from Julian’s

close friend, Jackie Ibrahim, another teacher at the school who

had been discussing with Julian some recent changes at the

school. The message read, “Wow I finally convinced Katia to stay

and now you throw me this curve ball--it seems the situation

changes each day . . . you really got our hopes up and now you are

going back on what you said. I want to throw up and Katia

wants to slit her wrists.” Castro responded, “I am concerned

about the line ‘Katia wants to slit her wri[s]ts’ do I need to send

someone to her? Are you with her? Will she be okay? This entire

process has been very chaotic and has not been easy for me

either. Just hang in there.” Ibrahim informed Castro she was

with Julian, and Castro took no further action at that time.

2 The facts relevant to the school defendants are from the

operative third amended complaint, facts identified as

undisputed in Julian’s separate statement in opposition to the

school defendants’ motion for summary judgment, and Julian’s

declaration. The facts relevant to the hospital defendants are

from the allegations of the third amended complaint only.

4

The following morning Castro met with Julian on an

unrelated matter and recorded in her notes that they had “a very

relaxed, friendly conversation.” Despite Julian’s request that

Castro not report the alleged assault to the school police, Castro

believed “a report needed to be made,” so she sought advice from

a superior who suggested she speak with someone in the office of

crisis counseling. Castro explained to the crisis counselor that

she knew she had a responsibility to address Julian’s claim of a

physical assault but wanted to be sensitive to her fear of the

school police. Castro also explained she needed to be “extra

sensitive” in light of Ibrahim’s text stating that Julian wanted to

slit her wrists. The crisis counselor reminded Castro of her

“responsibility for employee safety” and advised her to follow the

guidelines governing workplace violence.

Castro reported the alleged assault to Officer Libier

Valencia, a school police officer assigned to the middle school,

even though Castro knew Julian disliked Officer Valencia. While

Castro was discussing the situation with Officer Valencia, the

crisis counselor, Karen Miller, called Castro with additional

questions about Julian. During this conversation, Castro and

Officer Valencia revealed that Julian had scratches on her

forearms Julian had told Castro were caused by her cats and that

Julian had expressed a need for “revenge” against yet another

teacher who had crossed her. All of the participants in this

conversation agreed they needed additional information from

Julian about the alleged assault, and, because Castro and Officer

Valencia knew Julian would not want to speak to Officer

Valencia, they requested another officer question Julian.

Sergeant Robert Taylor, Officer Valencia’s superior officer,

eventually arrived to question her.

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Before questioning Julian, Sergeant Taylor called Miller for

more information. Miller told Sergeant Taylor she was concerned

about Julian’s mental stability because Julian had recently lost a

different lawsuit against the school district and had told her best

friend she was going to “slit her wrists.” Miller impressed upon

Sergeant Taylor that Julian might be suicidal. Sergeant Taylor

requested additional officers for backup, including Officers

Yvonne Miranda, Elizabeth Lara, and Jose Cardenas.

Aware of Julian’s previous encounters with Officer

Valencia, Sergeant Taylor and Castro agreed that Castro would

make initial contact with Julian and explain to her Sergeant

Taylor was there to interview her about the alleged assault. The

other officers remained in a conference room nearby while Castro

approached Julian with Sergeant Taylor behind her. Castro told

Julian the officer was there to “take her report.” In response,

Julian ran down the hallway and placed herself between a

student desk and a copier. She told Sergeant Taylor she did not

want to talk to him, began crying and screaming, and dropped or

slid to the floor with her back against the wall. Another school

administrator came out of her office, told Castro she had seen

Julian do something similar before, and offered to take Julian

into her office so she could calm down. Castro declined her offer

because Julian continued screaming “get away from me” and

Castro did not know at whom Julian was screaming.

According to Castro’s notes, which Julian submitted in

opposition to the school defendants’ motion for summary

judgment (and which the parties refer to as the “Castro

timeline”), Sergeant Taylor asked Julian to “calm down” and told

her “she [w]as safe.” Julian began “screaming even louder.” As

Officer Valencia approached, Julian continued screaming, “Get

6

away from me.” Castro crouched down in front of Julian and told

her she would not leave her alone with the officers and they

would not harm her, while Sergeant Taylor remained four or five

feet away. Julian told Castro she was afraid Sergeant Taylor was

going to hurt her, and Castro told her that “all he wanted was to

get her statement regarding her allegations of physical assault.”

Julian said Sergeant Taylor “was [taking] her freedom away.”

Castro asked Sergeant Taylor to leave her alone with Julian, but

he said he could not do that. Sergeant Taylor stated that, “due to

[Julian’s] state and reactions, he was going to call paramedics,”

at which point Julian yelled she had done nothing wrong and

continued to scream “leave” and “get away from me.”

While waiting for the ambulance to arrive, Julian reached

for her phone inside a small bag beside her. Not knowing what

Julian was reaching for, Sergeant Taylor approached, knelt

down, and turned Julian around to handcuff her. Julian resisted,

and Sergeant Taylor called the other officers to assist. Officer

Miranda attempted to control the growing crowd of students,

employees, and parents in the area. Julian continued to scream,

struggled with the officers, and complained after she had been

handcuffed that her back hurt. Julian asked Castro to take her

phone from her bag and call her attorney, but Castro was unable

to call him before the ambulance arrived.

When the paramedics arrived, they attempted to move

Julian to a gurney, but she resisted and said to Castro, “Do you

see what they are doing to me?” Another administrator told

Julian to cooperate, but Castro noted the more the paramedics

asked Julian to calm down “the angrier she became.” Eventually

the paramedics secured Julian on a gurney and transported her

7

to Mission Community Hospital, approximately one block from

the school.

B. The Hospital Detains Julian

Upon arriving at the hospital, Julian continued “to thrash

and try to slide off the [g]urney.” Officer Valencia gave the

hospital a completed Application for 72-Hour Detention for

Evaluation and Treatment form pursuant to section 5150. The

application stated Julian “went out of control, throwing herself to

the floor” when the school police contacted her about a criminal

investigation, and Julian “made statements to [an]other school

staff member that she wanted to cut her wrist.” The section 5150

application further stated: “She has 6 to 8 cuts on the right & left

wrist. Mrs. Julian came into a crawling position and was

screaming out of control.” The document concluded, “Based upon

the above information it appears that there is probable cause to

believe that [Julian] is, as a result of mental disorder[, a] danger

to . . . herself [and a] danger to others.” Julian calmed down after

approximately 15 minutes in the hospital, and the paramedics

asked the officers to remove the handcuffs.

Dr. Daniel Moghadam initially examined Julian. Julian

alleged he ignored the “cat scratches” on her arms, failed to

investigate her seizure disorder, and “erroneously accepted” the

information in the section 5150 form from the school police. Dr.

Moghadam transferred Julian to the Behavioral Health Unit.

Julian alleged the hospital held her there an “unnecessarily long

time,” and she never received a proper examination by a qualified

individual designated by the hospital pursuant to the Welfare

and Institutions Code. Instead, she alleged, Dr. Shirazi, who was

not a board certified psychiatrist or designated by the hospital to

8

detain persons with possible mental disorders, telephonically

ordered Julian’s detention for up to 72 hours and “illegally

prescribed anti-psychotic medications” without examining her or

obtaining her informed consent.

Although the chronology of events in Julian’s allegations is

unclear, she appears to have alleged that, after her detention,

another doctor, “who was not qualified to do an assessment and

yet improperly diagnosed an acute psychosis, noted but did not

investigate a seizure disorder, and also failed to notice the lack of

cuts on her arms.” After Julian spent the night in the hospital,

Dr. Shirazi personally examined her the next day and released

her. Julian alleged, “Had the hospital protocol required the

physician to undertake a careful examination of [her] . . . [she]

would have been rejected as a detainee.”

C. Julian Sues the School Defendants and the Hospital

Defendants

Julian sued the school defendants and the hospital

defendants for violations of the Act, violations of her civil rights

under section 1983 and the California Constitution, false

imprisonment, intentional infliction of emotional distress, and

medical negligence. The trial court sustained demurrers by all of

the defendants, and Julian eventually filed the operative third

amended complaint. That complaint did not include causes of

action for intentional infliction of emotional distress or medical

negligence.3

The school defendants answered the third amended

complaint and filed a motion for summary judgment or in the

3 The third amended complaint also dropped claims against

Dr. Moghadam and another doctor who examined Julian.

9

alternative summary adjudication. The hospital defendants

demurred again.

Following a hearing on the demurrers and the motion for

summary judgment, the trial court granted the school

defendants’ motion for summary judgment. With regard to

Julian’s first cause of action for violations of the Act, the court

ruled the school defendants were immune from liability because

they properly exercised their authority to place Julian on a 72-

hour hold. In particular, the court stated Julian’s “behavior was

bizarre and the [school defendants] are not required to make a

definitive prognosis of [Julian’s] mental health” before detaining

her. With regard to Julian’s civil rights claims, the court found

the school defendants enjoyed qualified immunity and

“undisputed supporting evidence supported the actions of the

[school defendants’] authority under the law” to detain Julian.

The court also found the school defendants were immune from

liability for civil rights violations under the California

Constitution pursuant to Government Code section 821.6.

Counsel for Julian abandoned the false imprisonment cause of

action by acknowledging it was “no longer viable.”

On the demurrers by the hospital defendants, the court

ruled the third amended complaint failed to state facts sufficient

to constitute causes of action. The court found the third amended

complaint was not significantly different from the “prior

iterations of the complaint.” With regard to the cause of action

for statutory violations, the court stated “the pleading suffers

from the same shortcomings as that in the [second] amended

10

complaint without new facts or law presented.”4 On Julian’s

causes of action for civil rights violations, the court ruled the

complaint failed “to show how Dr. Shirazi, or the hospital, acted

under the color of law or had any role in violating [Julian’s] civil

rights.” Julian again conceded her cause of action for false

imprisonment was not viable and withdrew it. The court

sustained the demurrers without leave to amend.5 Julian timely

appealed from the ensuing judgment.

DISCUSSION

A. Standard of Review

“A motion for summary judgment is properly granted only

when ‘all the papers submitted show that there is no triable issue

as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’ [Citation.] We review a grant of

summary judgment de novo and decide independently whether

the facts not subject to triable dispute warrant judgment for the

moving party as a matter of law. [Citations.] The evidence must

be viewed in the light most favorable to the nonmoving party.”

(Samara v. Matar (2017) 8 Cal.App.5th 796, 802-803; see Code

Civ. Proc., § 437c, subd. (c); Biancalana v. T.D. Service Co. (2013)

56 Cal.4th 807, 813; Drexler v. Petersen (2016) 4 Cal.App.5th

1181, 1188.) “A triable issue of material fact exists where ‘the

4 The trial court’s ruling on the hospital defendants’

demurrers to the second amended complaint is not in the record.

5 Julian does not contend on appeal the trial court should

have granted her leave to amend the third amended complaint,

nor on appeal does she ask for leave to amend.

11

evidence would allow a reasonable trier of fact to find the

underlying fact in favor of the party opposing the motion in

accordance with the applicable standard of proof.’” (Jade Fashion

& Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th

635, 643.) We may affirm a summary judgment if it is correct on

any of the grounds asserted in the trial court, regardless of the

trial court’s stated reasons. (Grebing v. 24 Hour Fitness USA,

Inc. (2015) 234 Cal.App.4th 631, 637.)

We review the trial court’s order sustaining the hospital

defendants’ demurrers de novo. (See Eckler v. Neutrogena Corp.

(2015) 238 Cal.App.4th 433, 438; Lewis v. Safeway, Inc. (2015)

235 Cal.App.4th 385, 390-391.) In so doing, we exercise our

“‘independent judgment about whether the complaint states a

cause of action as a matter of law.’” (Eckler, at p. 438.) We

assume the truth of all properly pleaded facts, but we do not

assume the truth of contentions, deductions, or conclusions of fact

or law. (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 764;

see Eckler, at p. 438.) We review questions of statutory

interpretation de novo. (John v. Superior Court (2016) 63 Cal.4th

91, 95; Even Zohar Const. & Remodeling, Inc. v. Bellaire

Townhouses, LLC (2015) 61 Cal.4th 830, 837.)

“‘If a demurrer is sustained, we exercise our independent

judgment on whether a cause of action has been stated as a

matter of law, regardless of reasons stated by the trial court.

[Citation.] We affirm if the trial court’s decision was correct on

any theory.’” (Schermer v. Tatum (2016) 245 Cal.App.4th 912,

923; see Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th

719, 732, fn. 2 [“appellate court must affirm if the trial court’s

decision to sustain the demurrer was correct on any theory”].)

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B. The Lanterman-Petris-Short Act

The Legislature enacted the Act in 1967 to govern the

involuntary commitment of mentally disordered persons. (Stats.

1967, ch. 1667, § 36, p. 4074; State Dept. of Public Health v.

Superior Court (2015) 60 Cal.4th 940, 952; Coburn v. Sievert

(2005) 133 Cal.App.4th 1483, 1492.) One of the purposes of the

Act is to provide “prompt evaluation and treatment of persons

with mental health disorders or impaired by chronic alcoholism.”

(§ 5001, subd. (b).) This purpose “reflects the unfortunate reality

that mental illness in its most acute form can pose a danger to

the individuals themselves or others that requires immediate

attention. To achieve this purpose, a number of [the] Act[’s]

provisions allow a person to be removed from the general

population in order to be civilly committed based on a probable

cause determination made by a mental health or law enforcement

professional, and then to challenge the civil commitment within a

reasonable time afterwards.” (Cooley v. Superior Court (2002) 29

Cal.4th 228, 253-254.)

The Act safeguards the rights of the involuntarily

committed through judicial review. (See § 5001; Sorenson v.

Superior Court (2013) 219 Cal.App.4th 409, 423.) For example,

the Act limits involuntary commitment to successive periods of

increasingly longer duration, beginning with a 72-hour detention

for evaluation and treatment. (§ 5150; Sorenson, at p. 423.)

Commitments longer than the initial 72-hour detention require a

certification hearing before an appointed hearing officer to

determine whether there is probable cause for confinement,

unless the detainee has filed a petition for writ of habeas corpus.

(§§ 5256, 5256.1, 5262, 5270.15, 5275, 5276; see Sorenson, at pp.

13

423-424.) A 180-day commitment requires a court order.

(§ 5301.)

Section 5150, the statute primarily at issue in this case,

allows law enforcement officers and various medical professionals

to bring an individual to an appropriate facility for assessment,

evaluation, and treatment for up to 72 hours where there is

“‘probable cause to believe that the person is, as a result of

mental disorder, a danger to others, or to himself or herself, or

gravely disabled.’” (Jacobs v. Grossmont Hospital (2003) 108

Cal.App.4th 69, 74; see Coburn, supra, 133 Cal.App.4th at

p. 1493.) “A broad range of personnel—including peace officers,

members of the staff of the evaluation facility, designated

members of a mobile crisis team, and other professional persons

designated by the county—can initiate the placement of a

mentally disordered person for the 72-hour evaluation.” (Coburn,

at p. 1493; see Ford v. Norton (2001) 89 Cal.App.4th 974, 979.)

When a peace officer takes a person into custody under

section 5150 and presents that person to a facility designated by

the county for evaluation and treatment, the officer must provide

a written application describing the circumstances that brought

the person’s condition to the officer’s attention and stating the

officer “has probable cause to believe that the person is, as a

result of a mental health disorder, a danger to others, or to

himself or herself, or gravely disabled.” (§ 5150, subd. (e).) In

determining whether there is probable cause, a person authorized

to make that determination may consider “available relevant

information about the historical course of the person’s mental

disorder” (§ 5150.05, subd. (a)) and “shall not be limited to

14

consideration of the danger of imminent harm” (§ 5150, subd.

(b)).6

Before admitting a person into a designated facility, “the

professional person in charge of the facility or his or her designee

shall assess the individual in person to determine the

appropriateness of the involuntary detention.” (§ 5151.) “If, in

the judgment of the professional person in charge of the facility

designated by the county for evaluation and treatment [or other

authorized individuals] the person cannot be properly served

without being detained, the admitting facility shall require an

application in writing stating the circumstances under which the

person’s condition was called to the [facility’s] attention . . . and

stating that [the facility] has probable cause [to detain the

person].” (§ 5150, subd. (e).) “Once admitted to a facility for a

72-hour detention, the detainee ‘shall receive an evaluation as

soon after he or she is admitted as possible.’ (§§ 5152, subd. (a),

5008, subd. (a) [‘evaluation’ defined].) In addition, the detainee

‘shall receive whatever treatment and care his or her condition

requires for the full period that he or she is held.’ (§ 5152, subd.

(a).) A person subject to 72-hour detention can be released early,

released after the lapse of 72 hours, certified for an additional 14

days of intensive treatment, or placed under the control of an

appointed conservator. (§§ 5152, subds. (a) & (b), 5250.) An early

release from a 72-hour commitment may occur ‘only if . . . the

psychiatrist directly responsible for the person’s treatment

6 The Legislature added section 5150, subdivision (b), in

2015 (effective Jan. 1, 2016) after Julian filed her third amended

complaint. (See Stats. 2015, ch. 570, § 1.) In all other respects,

the current statute is identical to the statute in effect at the time

Julian filed the third amended complaint.

15

believes, as a result of his or her personal observations, that the

person no longer requires evaluation or treatment.’ (§§ 5152,

subd. (a) [mentally disordered persons], 5172, subd. (a)

[inebriated persons].)” (Coburn, supra, 133 Cal.App.4th at

p. 1493; see Ford, supra, 89 Cal.App.4th at p. 979.)

“Consistent with the goals of the [Act], the decision to

detain a person involuntarily for 72 hours requires the careful

exercise of judgment in evaluating whether, as a result of mental

disorder, a person poses a danger to others, or to himself or

herself.” (Jacobs, supra, 108 Cal.App.4th at pp. 75-76.) Section

5278 provides immunity to individuals who exercise this

authority in accordance with the law. This immunity “allows

individuals authorized to detain a person for 72-hour treatment

and evaluation to make that decision without fear of exposure to

criminal or civil liability.” (Jacobs, at p. 76.) “The prospect of

liability for initiating a 72-hour hold would frustrate and impede

the Legislature’s intent to provide prompt evaluation and

treatment for the mentally ill and to ensure public safety. Thus,

the immunity of section 5278 necessarily applies to individuals or

entities who make the decision to detain, when that decision is

supported by probable cause.” (Ibid.; see Cruze v. National

Psychiatric Services, Inc. (2003) 105 Cal.App.4th 48, 56 [section

5278 applies to individuals and entities].)

C. The Act Does Not Create a Private Right of Action for

the Violations Alleged by Julian

Julian titled her first cause of action “Statutory Violations

Against All Police and Physician and the Hospital Defendants.”

In her the third amended complaint Julian listed a variety of

alleged violations of the Act, including that the police officers

16

“concocted a situation and falsely reported probable cause

pursuant to [sections] 5150, 5157 and 5328,” and she alleged the

hospital defendants “failed to review the false statement of

probable cause submitted by the police defendants and determine

the obvious point that [Julian] did not meet the criteria for

detention and should have been rejected immediately as required

by [sections] 5150, 5150.05, and 5151.” Julian also alleged the

hospital defendants failed to assess and evaluate her in

accordance with sections 5150, subdivision (b), 5150.4, and 5152,

subdivision (a), and failed to provide her with a written

statement of her rights pursuant to section 5325. With regard to

Dr. Shirazi, Julian alleged he should not have treated her

because he was not designated by the hospital at that time to

assess potential detainees, he failed to assess and evaluate her as

soon as possible after her admission pursuant to sections 5150,

subdivision (b), 5150.4, and 5152, subdivision (a), and he

prescribed medication contrary to the requirements of sections

5325.2, 5326.2, 5326.5, 5327, and 5332.

The hospital defendants argue the Act does not create a

private right of action for these violations. The hospital

defendants (and the school defendants), however, did not raise

this issue in the trial court, and the trial court’s order sustaining

the hospital defendants’ demurrers did not address it. We may

nevertheless consider an issue raised for the first time on appeal

“‘when [it] involves purely a legal question which rests on an

uncontraverted record which could not have been altered by the

presentation of additional evidence.’” (Noe v. Superior Court

(2015) 237 Cal.App.4th 316, 335; accord, Sanowicz v. Bacal

(2015) 234 Cal.App.4th 1027, 1042-1043; Kramer v. Intuit Inc.

(2004) 121 Cal.App.4th 574, 578; see Ivanoff v. Bank of America,

17

N.A., supra, 9 Cal.App.5th at p. 732, fn. 2 [“[a]lthough an issue

not raised in the trial court is typically forfeited, we can reach a

ground for demurrer not raised below if it presents a pure

question of law and the parties have been given an opportunity to

address it”].)

Whether the Act creates a private right of action to enforce

the provisions Julian claims the defendants violated “is a pure

question of law that does not turn on disputed facts or evidence.”

(Noe, supra, 237 Cal.App.4th at p. 336; see Shamsian v.

Department of Conservation (2006) 136 Cal.App.4th 621, 631

[“whether [a statute] . . . supports a private right of action is a

question of statutory interpretation and of law for the court”].)7

And the hospital defendants and Julian have briefed the issue on

7 There are no published decisions addressing whether

private parties may sue for violations of the statutes Julian

alleges the defendants violated. The court in Jackson v. Cedars-

Sinai Medical Center (1990) 220 Cal.App.3d 1315 declined to

decide whether the Act creates a private right of action for

violation of sections 5150, 5250, 5325.1, and 5326.2. (See

Jackson, at p. 1319, fn. 7.) In that case the court held the “Act

did not create liability for wrongfully admitting mental patients”

(id. at p. 1322) and the one-year statute of limitations under Code

of Civil Procedure section 340 governing certain tort actions,

rather than the three-year statute of limitations under Code of

Civil Procedure section 338 governing statutory liability, applied

to the plaintiff’s alleged statutory violations (id. at pp. 1319-

1322). Because the plaintiff filed suit beyond the one-year

statute of limitations, the court affirmed dismissal of the action.

(See also Harvey v. Alameda County Medical Center (N.D. Cal.

2003) 280 F.Supp.2d 960, 980 [declining to exercise supplemental

jurisdiction over a claim based on the Act because whether the

Act creates a private cause of action is “a novel issue of California

law”], affd. (9th Cir. 2005) 123 Fed. Appx. 823.)

18

appeal. (See, e.g., Ivanoff v. Bank of America, N.A., supra, 9

Cal.App.5th at p. 732, fn. 2 [considering a new legal issue on

appeal from an order sustaining a demurrer where the court

“invited supplemental letter briefs from the parties” on the issue];

Noe, at p. 336 [considering new legal issue on appeal from

summary judgment where the parties fully briefed the issue].)

Therefore, we consider the issue.

1. Governing Law

“A violation of a state statute does not necessarily give rise

to a private cause of action. [Citation.] Instead, whether a party

has a right to sue depends on whether the Legislature has

‘manifested an intent to create such a private cause of action’

under the statute. [Citations.] Such legislative intent, if any, is

revealed through the language of the statute and its legislative

history.” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th

592, 596; see Noe, supra, 237 Cal.App.4th at p. 336.) “‘[W]e

consider the statute’s language first, as it is the best indicator of

whether a private right to sue exists.’ [Citation.] ‘A statute may

contain “‘clear, understandable, unmistakable terms,’” which

strongly and directly indicate that the Legislature intended to

create a private cause of action. [Citation.] For instance, the

statute may expressly state that a person has or is liable [sic] for

a cause of action for a particular violation. [Citations.] Or, more

commonly, a statute may refer to a remedy or means of enforcing

its substantive provisions, i.e., by way of an action.’” (Noe, at

p. 336, “[sic]” in original; see Lu, at p. 597.) If the statute does

not include explicit language regarding a private right of action,

but contains provisions that create some ambiguity, courts may

19

look to legislative history “for greater insight.” (Lu, at p. 598; see

Noe, at p. 336.)

“‘It is well settled that there is a private right of action to

enforce a statute “only if the statutory language or legislative

history affirmatively indicates such an intent. [Citations.] That

intent need not necessarily be expressed explicitly, but if not it

must be strongly implied.”’” (Noe, supra, 237 Cal.App.4th at

p. 337; see Lu, supra, 50 Cal.4th at p. 601, fn. 6 [courts will not

find a private right of action unless the Legislature has “clearly

manifest[ed] an intent to create a private cause of action under a

statute”]; Thurman v. Bayshore Transit Management, Inc. (2012)

203 Cal.App.4th 1112, 1131-1132 [“[i]t is well settled that there is

a private right of action to enforce a statute ‘only if the statutory

language or legislative history affirmatively indicates such an

intent’”].) “‘“Particularly when regulatory statutes provide a

comprehensive scheme for enforcement by an administrative

agency, the courts ordinarily conclude that the Legislature

intended the administrative remedy to be exclusive unless the

statutory language or legislative history clearly indicates an

intent to create a private right of action.”’” (Noe, at p. 337; see

Thurman, at p. 1132.)

2. Julian Did Not Allege a Violation Enforceable

by a Private Right of Action Under the Act

Julian alleged the defendants violated the following

provisions of the Act: sections 5150, 5150.05, 5150.4, 5151, 5152,

5325, 5325.2, 5326.2, 5326.5, 5327, 5328, and 5332. None of

these statutes includes “‘“clear, understandable, unmistakable

terms”’” that “strongly and directly indicate that the Legislature

intended to create a private cause of action” for the violations

20

Julian alleged. (See Lu, supra, 50 Cal.4th at p. 597; Noe, supra,

237 Cal.App.4th at p. 336.)

Section 5150 expressly creates a private cause of action

against a person who intentionally provides a knowingly false

statement on which probable cause is based, but only against a

person who (unlike a police officer or medical professional) is not

authorized to detain someone under section 5150. (§ 5150, subd.

(e).) Section 5150.05 recognizes a similar, limited cause of action.

(§ 5150.05, subd. (c).) Julian did not sue any person other than a

peace officer or medical professional for providing false

information on which probable cause to detain her was based.

Sections 5150.4 and 5151 define “assessment,” require the

professional person in charge of a facility or his or her designee to

assess an individual in person before admitting that individual to

the facility, and specify that an individual admitted under section

5150 may be held for 72 hours. These provisions do not refer to

or expressly create any cause of action. Section 5152, subdivision

(a), requires each person admitted to a facility for 72-hour

treatment and evaluation to receive an evaluation “as soon as

possible after he or she is admitted.” Julian alleged this did not

happen in her case, but neither subdivision (a) of section 5152 nor

the other provisions of that section refer to or expressly create a

cause of action.

Sections 5325 and 5327 establish and declare certain legal

and civil rights of persons involuntarily detained under section

5150 and require facilities that provide evaluation and treatment

to post a list of those rights in a prominent place. Among the

rights established by section 5325 are the rights for a patient to

wear his or her own clothes, to keep and use his or her personal

possessions, to see visitors, to have reasonable access to

21

telephones, and to refuse convulsive treatment. (§ 5325, subds.

(a)-(f).) Section 5327 states that every person involuntarily

detained under the Act is entitled to these rights and “shall

retain all rights not specifically denied him.” Neither section

5325 nor section 5327 refers to or expressly creates a private

cause of action.

Sections 5326.2 and 5326.5 define “voluntary informed

consent” and “written informed consent” with regard to

treatment and treatment options. Neither provision refers to or

expressly creates a cause of action.

Section 5328 provides that all information and records

obtained in the course of providing services under the Act are

confidential and prescribes the circumstances in which such

information may be disclosed. Section 5328 does not create a

private cause of action. Section 5330 does create a private right

of action for damages against an individual who willfully and

knowingly releases confidential information or records concerning

him or her in violation of the Act, but Julian neither identifies

this section as a basis for her cause of action nor alleges the

police defendants (who she alleges violated section 5328) willfully

and knowingly disclosed any confidential information about her.

Finally, section 5332 sets forth the circumstances in which

antipsychotic medication may be administered to a person

involuntarily detained under section 5150. Again, this section

neither refers to nor expressly creates a private right of action,

and Julian does not allege she was actually administered any

medication by the hospital defendants.8

8 Julian also alleged the police defendants violated section

5157, which the Legislature repealed before she filed her third

amended complaint. (See Stats. 2013, ch. 567, § 9.) Section 5157

22

None of these provisions suggests an unmistakable

legislative intent to create a private cause of action for any of the

statutory violations Julian alleged. (See Lu, supra, 50 Cal.4th at

p. 598 [concluding the statutory language in that case did not

“‘“unmistakabl[y]”’ reveal a legislative intent to provide . . . a

private right to sue”].) A court may still find a private cause of

action if the Act contains provisions creating some ambiguity

regarding whether the Legislature intended to create a private

right of action and the Act’s legislative history affirmatively

indicates such an intent. (See Lu, at p. 598; Noe, supra, 237

Cal.App.4th at pp. 336-337.) Julian, however, does not point to

any such ambiguity in the relevant provisions of the Act or cite

any such legislative history.

Julian argues the rights created by the Act “must be

enforceable to be meaningful” and the statute’s reference to a

patient’s attorney “27 times” in sections 5325 through 5337

“contemplates private enforcement.” As noted, some provisions of

the Act do create a private right of action, such as section 5150,

subdivision (e), and section 5150.05, subdivision (c). These

provisions, along with sections 5203, 5259.1, 5265, 5270.40, and

5330, create causes of action in specific circumstances not

relevant here. Significantly, the fact the Legislature established

private rights of action to remedy violations of these provisions,

but not for violations of the provisions Julian alleged the

required the peace officer or mental health professional who took

the individual into custody under section 5150 to give that

individual certain information about his or her detention. It did

not refer to or create a private cause of action. Some of the

information previously required by section 5157 is now required

under section 5150, subdivisions (g)-(i).

23

defendants violated, is a strong indication Julian does not have a

private right of action for her claims under the Act. (See Rosales

v. City of Los Angeles (2000) 82 Cal.App.4th 419, 427-428

[statutory scheme governing disclosure of police personnel

records did not create a private right of action where the

Legislature did not include such a right in the statute but did

create private rights of action in similar contexts in other

statutes (including § 5330)]; see also Rosales, at p. 428 [“[g]iven

the comprehensiveness of the statutory scheme, the Legislature

could have easily provided a remedy if one was intended”].)

In addition, the Act provides a means of enforcing the

provisions Julian alleged the defendants violated, but not

through a private cause of action. Instead, the Act sets forth a

comprehensive scheme for its enforcement by the local director of

mental health, the Director of Health Care Services, or the

Director of State Hospitals, who may issue notices of violation to

offending facilities, revoke a facility’s designation and

authorization to evaluate and treat persons detained

involuntarily, and refer legal violations to a local district attorney

or the Attorney General for prosecution. (See § 5326.9.) When

legislation provides a comprehensive regulatory scheme for its

enforcement, courts generally conclude the Legislature intended

that remedy to be exclusive, unless the statutory language or

legislative history “clearly indicates an intent to create a private

right of action.” (Noe, supra, 237 Cal.App.4th at p. 337; see

Thurman, supra, 203 Cal.App.4th at p. 1132; see also County of

San Diego v. State (2008) 164 Cal.App.4th 580, 610-611

[“[g]enerally, when a new right is created by statute, a party

aggrieved by violation of the statute is limited to the statutory

24

remedy if one is provided”].) Again, the statutes Julian cites have

no such language or expression of legislative intent.

Moreover, aggrieved individuals can enforce the Act’s

provisions through other common law and statutory causes of

action, such as negligence, medical malpractice, false

imprisonment, assault, battery, declaratory relief, section 1983

for constitutional violations, and Civil Code section 52.1. (See,

e.g., Gonzalez v. Paradise Valley Hospital (2003) 111 Cal.App.4th

735 [negligence against a hospital and doctor arising out of the

death of a detainee during an involuntary 72-hour hold under

section 5150]; Jacobs, supra, 108 Cal.App.4th at p. 80 [negligence

against hospital for injuries sustained in a trip and fall incident

during a 72-hour hold under section 5150]; Ford, supra, 89

Cal.App.4th at p. 984 [malpractice against medical professionals

who released the plaintiff before the end of the 72-hour period

under the Act]; Riese v. St. Mary’s Hospital & Medical Center

(1987) 209 Cal.App.3d 1303 [class action seeking a declaration

that patients involuntarily committed to mental health facilities

must give informed consent to the use of antipsychotic drugs];

Hall v. City of Fremont (9th Cir. 2013) 520 Fed. Appx. 609

[assault, battery, intentional infliction of emotional distress, false

arrest and imprisonment, and violation of section 1983 arising

out of a detention under section 5150]; see also Jackson v.

Cedars-Sinai Medical Center (1990) 220 Cal.App.3d 1315, 1322-

1323 [“the involuntary hospitalization in a mental institution ‘in

violation of [a predecessor of the Act] constitutes false

imprisonment,’” and “the use of force to accomplish an unlawful

detention can give rise to liability for assault and battery”], italics

omitted.) Thus, the absence of a private right of action to enforce

the provisions of the Act Julian alleged the defendants violated

25

did not leave her without remedies for those alleged violations.

(See Lu, supra, 50 Cal.4th at p. 603; cf. Skov v. U.S. Bank Nat.

Assn. (2012) 207 Cal.App.4th 690, 698 [recognizing a private

right of action under Civil Code section 2923.5 where, “unlike in

Lu, there are no statutes which provide either a penalty for

noncompliance with section 2923.5 or designate any

administrative agency with enforcement of the statute”].)9

Julian is correct that sections 5325 through 5337 refer to a

patient’s attorney numerous times, but only in contexts not

relevant to Julian’s claims. For example, section 5326.7

addresses the role of a patient’s attorney in providing informed

consent for convulsive treatments, and sections 5333 and 5334

concern capacity hearings to determine whether a patient should

be administered antipsychotic medication against his or her will.

Sections 5328 and 5326.1 address circumstances in which a

patient’s attorney may be authorized to receive a patient’s

confidential information and treatment records. None of these

provisions implies a legislative intent to create a private right of

action to enforce any provision of the Act Julian alleged the

9 Indeed, in all of the cases Julian cites that involved claims

arising from alleged violations of the Act, the claims at issue were

based on common law causes of action. (See, e.g., Brumfield v.

Munoz (S.D.Cal., Oct. 23, 2008, No. 08 CV 0958 WQH (NLS))

2008 WL 4748176 [negligence and malpractice]; Jacobs, supra,

108 Cal.App.4th 69 [negligence and premises liability]; Cruze,

supra, 105 Cal.App.4th 48 [malpractice, negligence, false

imprisonment, infliction of emotional distress, defamation, and

other torts]; Heater v. Southwood Psychiatric Center (1996) 42

Cal.App.4th 1068 [false imprisonment, assault and battery,

negligent and intentional infliction of emotional distress, medical

malpractice, libel, and conspiracy].)

26

defendants violated. Nor has Julian cited anything in the

legislative history of the Act that suggests private persons may

enforce those provisions.

Because the Act does not create a private right of action for

violations of the provisions Julian alleged the defendants

violated, she is not entitled to maintain her first cause of action

for violations of the Act against any of the defendants. Therefore,

the trial court did not err in granting the school defendants’

motion for summary adjudication on the first cause of action or in

sustaining without leave to amend the hospital defendants’

demurrers to that cause of action.10

D. The Trial Court Properly Granted the School

Defendants’ Motion for Summary Judgment on

Julian’s Civil Rights Claims

1. Federal Civil Rights Claim

Julian’s second cause of action alleged the school

defendants violated her civil rights under the First, Fourth, and

Ninth Amendments. The trial court granted the school

defendants’ motion for summary adjudication on this cause of

action, ruling they were entitled to qualified immunity for their

“on-the-job judgment calls” and Julian failed to “point to

published, dispositive case law that states ‘a clearly established

rule prohibiting the officer from acting as he did . . . [i]n the

10 Even if Julian could maintain a private right of action

against the school defendants for violation of the Act, the school

defendants would still be immune from liability under section

5278 because, as we will discuss, they had probable cause to

detain Julian.

27

circumstances presented to [the] officer.’” The trial court also

concluded undisputed evidence supported the school defendants’

actions in placing Julian on a 72-hour hold under section 5150.

Julian argues the trial court erred because there are triable

issues of material fact regarding whether the school defendants

had probable cause to detain her. According to Julian, “[t]here is

a long list of controverted facts about whether anyone could

rationally suspect [she] was acting bizarrely under the

circumstances such that it warranted a review by a psychiatric

facility to determine whether she was mentally disordered.”

a. Governing law

“Title 42 United States Code section 1983 provides in

relevant part: ‘Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State . . . subjects,

or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.’” (Arce v.

County of Los Angeles (2012) 211 Cal.App.4th 1455, 1472.) “‘To

state a claim under [section] 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.’

[Citation.] ‘“State courts look to federal law to determine what

conduct will support an action under section 1983. [Citation.]’

[Citation.] ‘The threshold inquiry [in analyzing a section 1983

claim] is whether the evidence establishes that appellants have

28

been deprived of a constitutional right.’”’” (Arce, at pp. 1472-

1473.)

“[A] state is not a ‘person’ as that term is used in section

1983.” (Pierce v. San Mateo County Sheriff’s Department (2014)

232 Cal.App.4th 995, 1007; see Will v. Michigan Department of

State Police (1989) 491 U.S. 58, 71.) Whether a government unit

is considered an arm of the state is a federal question, “although

one ‘dependent on an analysis of state law.’” (Pierce, at p. 1009;

see McMillian v. Monroe County, Ala. (1997) 520 U.S. 781, 786.)

Cities, counties, and local officers sued in their official

capacity are “persons” for purposes of section 1983 and, “although

they cannot be held vicariously liable under section 1983 for their

subordinate officers’ unlawful acts, they may be held directly

liable for constitutional violations carried out under their own

regulations, policies, customs, or usages by persons having ‘final

policymaking authority’ over the actions at issue.” (Venegas v.

County of Los Angeles (2004) 32 Cal.4th 820, 829; see McMillian

v. Monroe County, supra, 520 U.S. at pp. 784-785; Monell v.

Department of Social Services of the City of New York (1978) 436

U.S. 658, 690-692.) Such actions “are commonly referred to as

‘policy or custom’ section 1983 cases against local governmental

entities and local officials acting in their official capacity.”

(Pierce, supra, 232 Cal.App.4th at p. 1007.)

Officers of a state, city, or county sued in their individual

capacity may be liable under section 1983 for violating an

individual’s constitutional rights. (Venegas, supra, 32 Cal.4th at

pp. 829, 839.) Qualified immunity, however, “shields public

officers from section 1983 actions unless the officer has violated a

clearly established constitutional right” (Mendoza v. City of West

Covina (2012) 206 Cal.App.4th 702, 711), which does not include

29

circumstances in which “reasonable officers in their position

would have believed their actions were lawful under established

law” (Venegas, at p. 839). (See Saucier v. Katz (2001) 533 U.S.

194, 201, overruled on other grounds by Pearson v. Callahan

(2009) 555 U.S. 223, 236.)

“In resolving questions of qualified immunity at summary

judgment, courts engage in a two-pronged inquiry.” (Tolan v.

Cotton (2014) __ U.S. __, __ [134 S.Ct. 1861, 1865].) “First,

‘[t]aken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct violated a

constitutional right.’ [Citation.] ‘If no constitutional right would

have been violated were the allegations established,’ then the

qualified immunity inquiry ends. [Citation.] However, ‘if a

violation could be made out on a favorable view of the parties’

submissions, the next, sequential step is to ask whether the right

was clearly established. This inquiry, it is vital to note, must be

undertaken in light of the specific context of the case, not as a

broad, general proposition.’” (Mendoza, supra, 206 Cal.App.4th

at p. 711; see Tolan v. Cotton, supra, __ U.S. at p. __ [134 S.Ct. at

pp. 1865-1866].) The “first step analyzes whether a

constitutional right was violated, which is a question of fact. The

second examines whether the right was clearly established,

which is a question of law. Step two serves the aim of refining

the legal standard and is solely a question of law for the judge.”

(Tortu v. Las Vegas Metropolitan Police Dept. (9th Cir. 2009) 556

F.3d 1075, 1085; see Dunn v. Castro (9th Cir. 2010) 621 F.3d

1196, 1199.)

“A right is clearly established only if its contours are

sufficiently clear that ‘a reasonable official would understand

that what he is doing violates that right.’ [Citation.] In other

30

words, ‘existing precedent must have placed the statutory or

constitutional question beyond debate.’ [Citation.] This doctrine

‘gives government officials breathing room to make reasonable

but mistaken judgments.’” (Carroll v. Carman (2014) __ U.S. __,

__ [135 S.Ct. 348, 350]; see Saucier, supra, 533 U.S. at pp. 202,

206; Marshall v. County of San Diego (2015) 238 Cal.App.4th

1095, 1108.) “When properly applied, [qualified immunity]

protects ‘all but the plainly incompetent or those who knowingly

violate the law.’” (Ashcroft v. al-Kidd (2011) 563 U.S. 731, 743;

see Carroll, __ U.S. at p. __ [135 S.Ct. at p. 350]; see Marshall, at

p. 1108.)

“[C]ourts have discretion to decide which of the two prongs

of qualified-immunity analysis to tackle first.” (Ashcroft, supra,

563 U.S. at p. 735; see Mendoza, supra, 206 Cal.App.4th at

p. 711, fn. 9.) And “[c]ourts should think carefully before

expending ‘scarce judicial resources’ to resolve difficult and novel

questions of constitutional or statutory interpretation that will

‘have no effect on the outcome of the case’” (Ashcroft, at p. 735),

especially in “cases in which the briefing of constitutional

questions is woefully inadequate” (Pearson, supra, 555 U.S. at

p. 239).

Although the United States Supreme Court has left “open

the issue of the burden of persuasion . . . with respect to a defense

of qualified immunity” (Gomez v. Toledo (1980) 446 U.S. 635, 642

(conc. opn. of Rehnquist, J.)), the Courts of Appeals generally

agree that, on a defendant’s motion for summary judgment, the

plaintiff “bears the burden of showing that the right at issue was

clearly established.” (Alston v. Read (9th Cir. 2011) 663 F.3d

1094, 1098; see, e.g., Keith v. Koerner (10th Cir. 2016) 843 F.3d

833, 837; Mendez v. Poitevent (5th Cir. 2016) 823 F.3d 326, 331;

31

Rivera-Corraliza v. Morales (1st Cir. 2015) 794 F.3d 208, 214;

Hess v. Ables (8th Cir. 2013) 714 F.3d 1048, 1051; Morton v.

Kirkwood (11th Cir. 2013) 707 F.3d 1276, 1280-1281; Donahue v.

Gavin (3d Cir. 2002) 280 F.3d 371, 378; Sledd v. Lindsay (7th Cir.

1996) 102 F.3d 282, 287.)

b. Julian did not state a section 1983 claim

for constitutional violations against the

LAUSD or LAUSP

Julian does not argue LAUSD and LAUSP are local

government units subject to liability under section 1983 for their

policies or customs rather than state agencies that are not

“persons” under the statute. Indeed, state and federal courts

have uniformly held that California school districts, including

LAUSD, are state agencies and thus not “persons” for purposes of

section 1983. (See, e.g., McAllister v. Los Angeles Unified School

District (2013) 216 Cal.App.4th 1198, 1207; Kirchmann v. Lake

Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1115;

C.W. v. Capistrano Unified School Dist. (9th Cir.2015) 784 F.3d

1237, 1247; Belanger v. Madera Unified School Dist. (9th Cir.

1992) 963 F.2d 248, 253; Sato v. Orange County Dept. of

Education (C.D.Cal., July 6, 2015, No. SACV 15-00311-JLS) 2015

WL 4078195, at p. 5 [citing cases].) Julian alleges, and LAUSD

concedes, LAUSP “is a division of the LAUSD.” Thus, it also

operates as an arm of the state and is not a “person” under

section 1983.

Even if the LAUSD and LAUSP were “persons” for

purposes of section 1983, Julian did not state a claim against

them. Government entities are liable under section 1983 only

where their “regulations, policies, customs, or usages by persons

32

having ‘final policymaking authority’” violate another’s

constitutional rights. (Venegas, supra, 32 Cal.4th at p. 829; see

Monell, supra, 436 U.S. 658 at pp. 690-692.) Julian’s third

amended complaint did not identify any such regulation, policy,

or custom that allegedly violated the constitutional rights Julian

identifies. Therefore, the trial court properly granted summary

adjudication on this cause of action against LAUSD and LAUSP.

c. Julian did not state a section 1983 claim

for constitutional violations against the

individual police defendants

Julian alleged three federal constitutional violations

against the individual police defendants. They were (1) violation

of her First Amendment right “to speak out about the wrongful

actions of the police department without being coerced into

silence by means of falsely labeling her as a person with a mental

disorder and dangerous”; (2) violation of her Fourth Amendment

right “to be free from seizure and or detention absent a warrant

or other established legal justification properly applied”; and (3)

violation of her “Unenumerated Ninth Amendment right . . . to be

properly cared for by physicians when in custody.”

With regard to the alleged First Amendment violation,

Julian alleged no facts suggesting she was ever “silence[d].” In

fact, Julian alleged and the uncontested evidence showed she

spoke and even screamed throughout much of her encounter with

the police defendants. With respect to Julian’s alleged Ninth

Amendment violation, Julian cites no case establishing a right

under that constitutional provision “to be properly cared for by

physicians when in custody.” In any event, it is unclear how the

police defendants, who Julian did not allege are physicians or

33

acted as physicians under the color of law, could have violated

any such right.

Julian did have a constitutional right under the Fourth

Amendment to be free from involuntary detention without

probable cause. (Bias v. Moynihan (9th. Cir. 2007) 508 F.3d

1212, 1220; see People v. Triplett (1983) 144 Cal.App.3d 283, 287

& fn. 6 [involuntary detention pursuant to section 5150 without

probable cause may violate the Fourth Amendment].) Therefore,

the issue is whether the undisputed facts demonstrated that a

reasonable officer would have believed there was probable cause

to detain Julian under section 5150. (See Bias, at pp. 1219-1220.)

“Probable cause exists under section 5150 if facts are

known to the officer ‘that would lead a person of ordinary care

and prudence to believe, or to entertain a strong suspicion, that

the person detained is mentally disordered and is a danger to

himself or herself.’” (Bias, supra, 508 F.3d at p. 1220; see Heater

v. Southwood Psychiatric Center (1996) 42 Cal.App.4th 1068,

1080; Triplett, supra, 144 Cal.App.3d at pp. 287-288.) “To justify

the detention, the officer must point to ‘specific and articulable

facts which, taken together with rational inferences from those

facts, reasonably warrant his or her belief or suspicion.’” (Bias,

at p. 1220; see Triplett, at p. 288.) “‘Each case must be decided on

the facts and circumstances presented to the officer at the time of

the detention and the officer is justified in taking into account the

past conduct, character, and reputation of the detainee.’” (Bias,

at p. 1220; see Triplett, at pp. 287, fn. 6 & 288.) In determining

whether there is probable cause, “[a] peace officer . . . is not

required to make a medical diagnosis of mental disorder. It is

sufficient if the officer, as a lay person, can articulate behavioral

symptoms of mental disorder . . . . [G]enerally, mental disorder

34

might be exhibited if a person’s thought processes, as evidenced

by words or actions or emotional affect, are bizarre or

inappropriate for the circumstances.” (Triplett, at p. 288.)

Here, prior to detaining Julian, Sergeant Taylor learned

Julian had told a close friend she was going to slit her wrists,

Julian had marks on her wrists Sergeant Taylor believed may

have evidenced previous suicide attempts, and Julian could be

suicidal. Because he was aware Julian disliked Officer Valencia,

Sergeant Taylor and Castro agreed to approach Julian without

Officer Valencia. When they did, Julian dropped to the floor and

screamed “get away from me,” even though Castro told her they

were there only to get a statement from her about the assault she

had reported. Sergeant Taylor asked Julian to calm down and

told her she was safe, but she began screaming “even louder.”

Sergeant Taylor called for an ambulance because he had

concluded Julian was a danger to herself and the children and

employees at the school. The application for a 72-hour detention

that Officer Valencia presented to the hospital summarized these

facts, stating Julian “went out of control” when the school police

approached her about a criminal investigation, had previously

“made statements to [an]other school staff member that she

wanted to cut her wrist,” and had “6 to 8 cuts” on her wrists.

These uncontested facts support a finding of probable

cause.11 (See Triplett, supra, 144 Cal.App.3d at p. 288 [“obvious

11 Julian contends that probable cause cannot be determined

on summary judgment, but does not cite any case in support of

this contention. Many cases hold otherwise. (See, e.g., Cruze,

supra, 105 Cal.App.4th at p. 58; Bias, supra, 508 F.3d at p. 1221;

Palter v. City of Garden Grove (9th Cir. 2007) 237 Fed. Appx. 170,

172.)

35

physical signs of a recent suicide attempt” coupled with the

detainee’s intoxication and “tearful” condition “would lead any

person of ordinary care and prudence to believe that [the

detainee] as a result of mental disorder was a danger to herself”];

Bias, supra, 508 F.3d at p. 1221 [probable cause existed where

the detainee alluded to suicide and paranoid thoughts, and later

“became combative” and grabbed an officer while appearing

“visibly angry” and “agitated”]; Palter v. City of Garden Grove

(9th Cir. 2007) 237 Fed. Appx. 170, 172 [probable cause existed

where a neighbor told an officer the detainee alluded to suicide,

had a gun, and was going to his daughter’s home to leave a

“goodbye” note, even though the detainee told the officer he did

not intend to hurt himself and did not have a gun].) “Probable

cause does not mean certain cause, and the purpose of the

psychiatric evaluation [under section 5150] is to have

professionals skilled at evaluating mental state take some

responsibility for assessing whether [a detainee] was in danger.”

(Palter, at p. 172.) Sergeant Taylor had probable cause under the

totality of the circumstances to believe Julian was a danger to

herself and others and to detain her so that medical professionals

could assess her.

Julian argues that “a long list of controverted facts”

precluded summary judgment. For example, she points out

Castro had “discounted” the text message Ibrahim sent to Castro

stating that Julian wanted to “slit her wrists.” Julian, however,

does not dispute Castro shared the text message with an LAUSD

crisis counselor who in turn shared it with Sergeant Taylor, nor

does Julian dispute Sergeant Taylor properly took that text

message into account in determining whether there was probable

cause to detain Julian. (See Bias, supra, 508 F.3d at p. 1220 [in

36

determining probable cause, an officer may consider the

detainee’s past conduct, character, and reputation]; accord,

Triplett, supra, 144 Cal.App.3d at pp. 287-288 & fn. 6.) Even if

Castro discounted the text message, that did not preclude

Sergeant Taylor from taking the text message into account in

evaluating Julian’s mental state. And Castro did not entirely

discount Julian’s text; she told LAUSD’s crisis counselor about it

despite having previously concluded Julian was not suicidal. (See

Bias, at p. 1219 [rejecting the detainee’s argument that the court

should construe a letter stating “I shall kill myself” as hyperbole

because the statement was not presented as a joke or a figure of

speech].)

Similarly, Julian repeatedly relies on her assertion the

scratches on her arms were made by her cats and were not

evidence of past suicide attempts. While Julian might have

known the scratches were from her cats, she presented no

evidence Castro, LAUSD’s crisis counselor, or Sergeant Taylor

knew they were. And Julian could have said her cats scratched

her and actually made the marks herself. Indeed, a person of

ordinary care and prudence easily could have concluded or

entertained a strong suspicion the scratches were “hesitation

marks,” which result “when a person contemplating suicide cuts

his or her wrist to see how much pain is involved.” (Triplett,

supra, 144 Cal.App.3d at p. 285; see People v. Lightsey (2012) 54

Cal.4th 668, 675 [“superficial ‘hesitation wounds’” indicated the

decedent may have committed suicide]; People v. Steele (2002) 27

Cal.4th 1230, 1275 [wounds indicating hesitation are suggestive

of suicide rather than homicide].) Julian states the difference

between her cat scratches and “recently self inflicted cuts was

obvious,” but her self-assessment does not negate the fact that a

37

reasonable person in Sergeant Taylor’s position could have

concluded otherwise and reasonably construed the scratches on

her arms as evidence of a suicidal tendency.

Julian also contends that the school police knew of her

fears of police in general and of a prior incident where she

“responded in a similar fashion at the school, sitting against the

wall to assure her safety,” and that the police “acted pursuant to

their own plan founded upon some irrational prejudice in their

thinking.” Julian essentially argues the school police conspired

to detain her involuntarily by “fabricating a situation.” Although

it is unclear whether Julian intended to allege civil conspiracy

under California state law or conspiracy to violate her

constitutional rights, in either case her allegations of a

conspiracy are not actionable.

Under California law, “[t]here is no separate tort of civil

conspiracy and no action for conspiracy to commit a tort unless

the underlying tort is committed and damage results therefrom.”

(Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223

Cal.App.4th 1105, 1136; accord, Kenne v. Stennis (2014) 230

Cal.App.4th 953, 968; see Rusheen v. Cohen (2006) 37 Cal.4th

1048, 1062 [stating the elements of civil conspiracy].) Similarly,

under federal law, a conspiracy, even if established, “does not

give rise to liability under [section] 1983 unless there is an actual

deprivation of civil rights” resulting from the conspiracy.

(Woodrum v. Woodward County, Okl. (9th Cir. 1989) 866 F.2d

1121, 1126; see Hernandez v. City of Napa (N.D. Cal. 2011) 781

F.Supp.2d 975, 997.) Because ultimately Julian did not allege

any state tort cause of action and cannot show any actual

deprivation of her constitutional rights resulted from the alleged

conspiracy, the alleged conspiracy is not actionable. (See Kenne,

38

at pp. 968-969 [“a bare conspiracy, without the commission of

some underlying tort by a coconspirator is not actionable”];

Woodrum, at p. 1126 [plaintiffs cannot succeed on conspiracy

claim without establishing a violation of their constitutional

rights]; see also Hart v. Parks (9th Cir. 2006) 450 F.3d 1059, 1071

[affirming summary judgment on a claim that officers conspired

to violate the plaintiff’s constitutional rights where the officers

had probable cause to arrest him].)12

2. State Civil Rights Claims

Julian’s third cause of action alleged two causes of action,

one based on alleged violations of the California Constitution and

12 In addition to arguing these facts undermine the trial

court’s conclusion that the police defendants had probable cause

to detain Julian, Julian’s briefs cite various pages of her

opposition to the motion for summary judgment, her separate

statement, and her declaration in the trial court. As the

appellant, however, Julian has the burden to demonstrate error

by “‘presenting legal authority on each point made and factual

analysis, supported by appropriate citations to the material facts

in the record; otherwise, the argument may be deemed forfeited.’”

(Salehi v. Surfside III Condominium Owners’ Assn. (2011) 200

Cal.App.4th 1146, 1161-1162; accord, Keyes v. Bowen (2010) 189

Cal.App.4th 647, 655-656.) Julian may not simply “‘incorporate

by reference arguments made in papers filed in the trial court,

rather than briefing them on appeal.’” (Salehi, at p. 1162; see

Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,

294, fn. 20 [“[i]t is well settled that the Court of Appeal does not

permit incorporation by reference of documents filed in the trial

court”]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293,

1301, fn. 2 [“it is not appropriate to incorporate by reference, into

a brief, points and authorities contained in trial court papers,

even if such papers are made a part of the appellate record”].)

39

one based on Civil Code section 52.1, the Tom Bane Civil Rights

Act (the Bane Act). (See Shoyoye v. County of Los Angeles (2012)

203 Cal.App.4th 947, 950.) She alleged (1) the school defendants

violated her civil rights under the California Constitution,

including by violating article I, sections 1, 2, 3, 7, and 13; and (2)

the school police defendants interfered or attempted to interfere

by threats, intimidation or coercion, with Julian’s exercise or

enjoyment of her state and federal constitutional rights and other

legal rights as alleged in her complaint.

The trial court granted the school defendants’ motion for

summary adjudication on this cause of action, ruling they were

immune from civil liability under section 5278 and Government

Code 821.6. Julian argues that the school defendants are not

immune under section 5278 because they did not exercise their

authority “in accordance with the law” as required by that

statute, and that factual disputes precluded summary judgment

on the basis of Government Code section 821.6.

a. Alleged state constitutional violations

There is no cause of action for damages for alleged

violations of California Constitution, article I, section 2,

subdivision (a) (freedom of speech), article I, section 3,

subdivision (a) (right to petition the government),13 or article I,

section 7, subdivision (a) (due process and equal protection),

when such an action is not tied to an established common law or

13 Article I, section 3, subdivision (b), provides for the right to

have access to information concerning the conduct of the people’s

business. Julian did not allege any facts that would constitute a

violation of this right even if it provided for a private cause of

action for damages.

40

statutory action, and Julian alleges no such cause of action. (See

Degrassi v. Cook (2002) 29 Cal.4th 333, 335 & fn. 1 [freedom of

speech]; Katzberg v. Regents of University of California (2002) 29

Cal.4th 300, 303 & fn. 1, 321 [due process and equal protection];

McAllister, supra, 216 Cal.App.4th at p. 1215 [freedom of speech];

MHC Financing Ltd. Partnership Two v. City of Santee (2010)

182 Cal.App.4th 1169, 1188 [right to petition]; Javor v. Taggart

(2002) 98 Cal.App.4th 795, 807 [due process and equal

protection].)

Whether there is a cause of action for damages for

violations of the right to privacy under article I, section 1, of the

California Constitution is not entirely settled. (Compare

Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286 [citing

Katzberg for the proposition “it is an open question whether the

state constitutional privacy provision, which is otherwise self-

executing and serves as the basis for injunctive relief, can also

provide direct and sole support for a damages claim”] with

Clausing v. San Francisco Unified School Dist. (1990) 221

Cal.App.3d 1224, 1238 [holding there is no cause of action for

damages under article I, section 1, because that provision does

not impose a mandatory duty on public entities to protect a

citizen’s right to privacy].) In any event, Julian failed to state the

elements of a cause of action for invasion of privacy: a legally

protected privacy interest in which she has a reasonable

expectation of privacy under the circumstances and a serious

invasion of that privacy interest. (See Sheehan v. San Francisco

49ers, Ltd. (2009) 45 Cal.4th 992, 998; Hill v. National Collegiate

Athletic Association (1994) 7 Cal.4th 1, 35-37.) Therefore, the

trial court did not err in granting summary adjudication on

41

Julian’s cause of action for damages against the school

defendants under article I, sections 1, 2, 3, and 7.

The California Supreme Court has also not decided

whether there is a private cause of action for damages under

article I, section 13, which protects against unreasonable

searches and seizures, and federal courts are divided on this

question. (See Smith v. County of Los Angeles (C.D.Cal. Mar. 25,

2015, No. CV 11-10666 DDP (PJWx)) 2015 WL 1383539, at p. 7

[“[a]s to art. 1, § 13, the Court recognizes that there is a split of

authority as to whether the provision is ‘self-executing,’ in the

sense of providing a freestanding cause of action for damages,”

and citing cases]; OSJ PEP Tennessee LLC v. Harris (C.D.Cal.

Oct. 7, 2014, No. CV 14-03741 DDP (MANx)) 2014 WL 4988070,

at p. 6 [“[f]ederal courts in California have reached contradictory

conclusions about whether such a tort based on [section] 13

actually exists,” and citing cases].) We need not decide that

question here because, even if there is a cause of action for

damages under article 1, section 13, the school defendants would

be immune from liability under section 5278.

Section 5278 provides in part: “Individuals authorized

under this part to detain a person for 72-hour treatment and

evaluation pursuant to Article 1 (commencing with Section

5150) . . . shall not be held either criminally or civilly liable for

exercising this authority in accordance with the law.” Julian did

not allege the school defendants were not authorized to detain

her under section 5150. She alleged they exercised their

authority outside the bounds of the law by detaining her without

probable cause.

The immunity under section 5278 is not absolute. In

enacting the statute, the Legislature “intended to provide

42

immunity for claims based on conduct that is expressly

authorized by the [Act] but would otherwise constitute a civil or

criminal wrong.” (Jacobs, supra, 108 Cal.App.4th at p. 78.)

Thus, “the scope of section 5278 immunity extends to claims

based on facts that are inherent in an involuntary detention

pursuant to section 5150. If there is probable cause for the

detention, the statute therefore provides immunity for the

decision to detain as well as for the detention and its inherent

attributes, including the fact that the patient must necessarily be

evaluated and treated without consent. These are all inherent

aspects of the statutory scheme and thus cannot provide the basis

for a civil suit.” (Jacobs, at pp. 78-79.) The “protected conduct,”

however, “is confined to the exercise of statutory authority to

detain, evaluate and treat against the patient’s wishes, and does

not extend to the manner in which evaluation and treatment are

carried out.” (Gonzalez, supra, 111 Cal.App.4th at p. 741.) Thus,

immunity under section 5278 does not extend to “negligent acts,

intentional torts, or criminal wrongs committed during the course

of the detention, evaluation, or treatment.” (Gonzales, at p. 742;

see also Jacobs, at p. 79.)

Julian alleged her detention was improper because the

school defendants lacked probable cause, the police officers

“fabricated” the circumstances in which they detained her, and

the officers used excessive force in restraining her. As explained,

however, the police defendants had probable cause to detain

Julian, and neither the complaint nor Julian’s briefs explain how

the police defendants used excessive force, except to argue that

the use of any force was excessive because the school defendants

lacked probable cause.

43

With regard to the alleged conspiracy, Julian’s allegations

and arguments contradict evidence she submitted in opposition to

the motion for summary judgment and fail to sufficiently allege a

conspiracy. In particular, the so-called “Castro timeline” Julian

attached to her declaration states that Officer Valencia, contrary

to “orchestrating” any conspiracy, voluntarily recused herself

from questioning Julian and asked the school police to call in

another officer because she knew Julian disliked her. When

Castro learned the identity of the replacement officer, she asked

Officer Valencia to call for yet another replacement because

Castro “knew [Julian] had a previous incident with [that officer]

and [she] would upset her even more if he came to take her

report.” Officer Valencia agreed, and Sergeant Taylor arrived to

question Julian. Julian alleged the five officers who detained her

somehow colluded before the detention and agreed to call an

ambulance in advance, but she did not contradict the evidence

showing that, to the contrary, the decision to question her was

made by Castro, the LAUSD crisis counselor, and Sergeant

Taylor.

Moreover, Julian submitted no evidence explaining when,

how, or why this conspiracy came into existence. Indeed, it was

Julian who set the events of the day in motion by lodging a

complaint against another teacher. “For liability to attach [for a

civil conspiracy], knowledge of the planned tort must be combined

with intent to aid in its commission. [Citation.] ‘While

knowledge and intent “may be inferred from the nature of the

acts done, the relation of the parties, the interest of the alleged

conspirators, and other circumstances” [citation], “‘[c]onspiracies

cannot be established by suspicions. There must be some

evidence. Mere association does not make a conspiracy. There

44

must be evidence of some participation or interest in the

commission of the offense.’”’” (Contreras v. Dowling (2016) 4

Cal.App.5th 774, 795; accord, Kidron v. Movie Acquisition Corp.

(1995) 40 Cal.App.4th 1571, 1582; see Code Civ. Proc., § 437c,

subd. (p)(2) [“[t]he plaintiff . . . shall not rely upon the allegations

. . . of its pleadings to show that a triable issue of material fact

exists but, instead, shall set forth the specific facts showing that

a triable issue of material fact exists as to the cause of action”].)

Neither Julian’s allegations nor the evidence she submitted in

opposition to the school defendants’ motion for summary

judgment suggested any conspiracy to detain her.

Because the school defendants had probable cause to detain

Julian and there was no triable issue of fact regarding whether

the school defendants exercised their authority in accordance

with the law, they are immune from liability for any violation of

Julian’s right to be free from unreasonable searches and seizures

under article 1, section 13 of the California Constitution. The

trial court properly granted summary adjudication on this cause

of action.

b. Alleged Bane Act violations

Julian also alleged the individual police officers violated

the Bane Act by improperly interfering with her constitutional

rights through threats, intimidation, or coercion. Civil Code

section 52.1 provides a private right of action for damages against

any person, “whether or not acting under color of law,” who

“interferes” or “attempts to interfere by threat, intimidation, or

coercion, with the exercise or enjoyment by any individual or

individuals of rights secured by the Constitution or laws of the

45

United States, or of the rights secured by the Constitution or

laws [of California].”

“A defendant is liable [under the Bane Act] if he or she

interfered with or attempted to interfere with the plaintiff’s

constitutional rights by the requisite threats, intimidation, or

coercion.” (Shoyoye, supra, 203 Cal.App.4th at p. 956; see

Venegas, supra, 32 Cal.4th at pp. 841-843.) “[T]he statute was

intended to address only egregious interferences with

constitutional rights, not just any tort. The act of interference

with a constitutional right must itself be deliberate or spiteful.”

(Shoyoye, at p. 959.) Thus, where the plaintiff alleges wrongful

detention, the statute requires a showing of threatening conduct

independent from the alleged wrongful detention. (Ibid.; see Doe

v. State (2017) 8 Cal.App.5th 832, 842-843; Allen v. City of

Sacramento (2015) 234 Cal.App.4th 41, 69.) The plaintiff must

show “the defendant interfered with or attempted to interfere

with the plaintiff’s legal right by threatening or committing

violent acts.” (Doe v. State, at p. 842; see Austin B. v. Escondido

Union School Dist. (2007) 149 Cal.App.4th 860, 881-882; see

generally Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.)

Speech is insufficient to establish the requisite threat unless it

includes threat of violence. (Shoyoye, at p. 958, citing Civ. Code,

§ 52.1, subd. (j).)

Here, other than the actions necessary to detain Julian,

which the police had probable cause to take, Julian alleged

without explanation that the police defendants “engaged in

tactics to scare” her. “[C]onclusory allegations of ‘forcible’ and

‘coercive’ interference with plaintiffs’ constitutional rights are

inadequate to state a cause of action for a violation of section

52.1.” (Allen, supra, 234 Cal.App.4th at p. 69.) The trial court

46

properly granted summary adjudication on this cause of action as

well.

E. The Trial Court Properly Sustained the Hospital

Defendants’ Demurrers Without Leave To Amend

The trial court sustained the hospital defendants’

demurrers without leave to amend. The trial court concluded

section 5278 barred Julian’s claims against the hospital

defendants, and the court ruled Julian failed to allege the

hospital defendants acted under the color of law or had any role

in violating Julian’s civil rights. Julian challenges these rulings.

We find no error.14

1. Federal Civil Rights Claim

As noted, to state a claim under section 1983, the plaintiff

must allege that a person acting under color of state law deprived

him or her of a federally guaranteed right. (Naffe v. Frey

(9th Cir. 2015) 789 F.3d 1030, 1035-1036; Anderson v. Warner

(9th Cir. 2006) 451 F.3d 1063, 1067.) “While generally not

applicable to private parties, a § 1983 action can lie against a

private party when ‘he is a willful participant in joint action with

the State or its agents.’” (Kirtley v. Rainey (9th Cir. 2003) 326

F.3d 1088, 1092; accord Peng v. Mei Chin Penghu (9th Cir. 2003)

335 F.3d 970, 980.)

Federal law governs whether a private party is a state

actor, and we review a trial court’s resolution of this question

de novo. (See Caviness v. Horizon Community Learning Center,

14 As noted, Julian’s first cause of action for violation of the

Act did not state a claim because there is no private right of

action for the alleged violations.

47

Inc. (9th Cir. 2010) 590 F.3d 806, 811; Lee v. Katz (9th Cir. 2002)

276 F.3d 550, 553-554; see also In re Christopher H. (1991) 227

Cal.App.3d 1567, 1576 [federal law determines whether there has

been state action for purposes of applying the Fourth

Amendment].) “We start with the presumption that conduct by

private actors is not state action.” (Florer v. Congregation Pidyon

Shevuyim, N.A. (9th Cir. 2011) 639 F.3d 916, 922; see Sutton v.

Providence St. Joseph Medical Center (9th Cir. 1999) 192 F.3d

826, 835.) Julian had the burden of establishing that the hospital

defendants were state actors. (Florer, at p. 922; see Flagg Bros.,

Inc. v. Brooks (1978) 436 U.S. 149, 156.)

Julian acknowledged the hospital defendants are private

entities or individuals, but alleged they acted under color of law

when they detained and assessed her. In particular, Julian

alleged that the hospital acted under color of law because the

County of Los Angeles designated the hospital as a facility

authorized to accept and detain individuals under the Act, and

that the hospital acted pursuant to this authority when it

detained her. Julian alleged Dr. Shirazi acted under color of law

“through the authority” of the hospital. The hospital defendants

contend these allegations were insufficient to constitute acting

under color of law.

The Ninth Circuit has articulated four tests for

determining whether a private person acted under color of law:

(1) the public function test, (2) the joint action test, (3) the

government nexus test, and (4) the government coercion or

compulsion test. (Kirtley, supra, 326 F.3d at p. 1092; Franklin v.

Fox (9th Cir. 2002) 312 F.3d 423, 445.) “Satisfaction of any one

test is sufficient to find state action, so long as no countervailing

factor exists.” (Kirtley, at p. 1092; accord, Florer, supra, 639 F.3d

48

at p. 924.) “‘[N]o one fact can function as a necessary condition

across the board for finding state action; nor is any set of

circumstances absolutely sufficient, for there may be some

countervailing reason against attributing activity to the

government.’” (Florer, at p. 924; see Brentwood Academy v.

Tennessee Secondary School Athletic Assn. (2001) 531 U.S. 288,

295-296.) Julian’s allegations against the hospital defendants did

not satisfy any of these tests.

Under the public function test, a private party’s conduct

constitutes state action when the private party exercises powers

that are “‘traditionally the exclusive prerogative of the State.’”

(Caviness, supra, 590 F.3d at p. 814; see Sturm v. El Camino

Hospital (N.D.Cal., Feb. 26, 2010, No. C-09-02324 RMW) 2010

WL 725563, at p. 3.) “‘[W]hen private individuals or groups are

endowed by the State with powers or functions governmental in

nature, they become agencies or instrumentalities of the State

and subject to its constitutional limitations.’” (Florer, supra, 639

F.3d at p. 924; see Kirtley, supra, 326 F.3d at p. 1093.) “[T]he fact

that the government has granted a private entity certain powers

and privileges under the law,” however, “is insufficient to make

the private entity’s conduct state action.” (Sturm, at p. 3; see

Caviness, at p. 814.) Instead, the “challenged ‘function at issue

must be both traditionally and exclusively governmental.’”

(Caviness, at p. 814.)

The allegations in Julian’s complaint were insufficient to

raise a reasonable inference that the detention, evaluation, and

treatment of mentally disordered individuals are functions within

the exclusive prerogative of the state. Indeed, the Act refined a

system the Legislature originally enacted in 1957 in which

private community hospitals could provide mental health

49

services, including by detaining, assessing, and treating certain

individuals, without the involvement of any state official or

entity. (See William M. Burke, The Need for Reform in the

California Civil Commitment Procedure (1967) 19 Stan. L. Rev.

992, 1003-1004 [describing the Act’s predecessor, the Short-Doyle

Act].) That system continues under the Act. (See § 5150, subd.

(a) [authorizing certain private persons, including a “professional

person in charge of a facility designated by the county,” to detain

individuals]; § 5150, subd. (c) [authorizing certain private persons

to “assess the [individual] to determine whether he or she can be

properly served without being detained”].) Health and Safety

Code section 1799.111 also allows a licensed general acute care

hospital and any physician or surgeon providing emergency

medical services in any department of such a hospital to detain a

person under the circumstances described in section 5150 for up

to 24 hours. Thus, under the Act, the detention, assessment, and

treatment of mentally disordered persons is not within the

exclusive province or prerogative of the state. (See generally Doe

v. Rosenberg (S.D.N.Y. 1998) 996 F.Supp. 343, 356 [“[h]istory

reveals that involuntary commitment has long been a private

remedy, although subject to safeguards”]; Salter, Toward

Community Mental Health: A History of State Policy in

California, 1939-1969 (1978), p. 338 [the Act “allowed the

community treatment system to detain an individual under

certain conditions, for a total of 17 days without a court order;

this gave the treatment group freedom to exercise professional

judgment and to observe and treat an individual without court

interference for a limited period”].)

Contrary to Julian’s contention, the fact that state laws

authorize and regulate such actions does not, without more,

50

transform private activity into state action. (See Caviness, supra,

590 F.3d at p. 814 [private corporation that operated a public

charter school subject to state regulation was not a state actor

merely because state law characterized all charter schools as

“public schools”]; Sturm, supra, 2010 WL 725563 at p. 3 [“[b]y

detaining plaintiff for mental health treatment and evaluation,

the private parties involved did not exercise power that is

‘traditionally the exclusive prerogative of the State’”]; see also

Doe v. Rosenberg, supra, 996 F.Supp. at p. 356 [“[t]hat the State

can authorize commitment through its parens patriae or police

powers does not make it the exclusive prerogative of the State”].)

Under the joint action test, “‘courts examine whether state

officials and private parties have acted in concert in effecting a

particular deprivation of constitutional rights.’” (Franklin, supra,

312 F.3d at p. 445.) “The test focuses on whether the state has

‘“so far insinuated itself into a position of interdependence with

[the private actor] that [the private actor] must be recognized as

a joint participant in the challenged activity.”’” (Ibid.; see Florer,

supra, 639 F.3d at p. 926; Kirtley, supra, 326 F.3d at p. 1093.) “A

plaintiff may demonstrate joint action by proving the existence of

a conspiracy or by showing that the private party was ‘a willful

participant in joint action with the State or its agents.’”

(Franklin, at p. 445.)

Julian did not allege any joint action or conspiracy between

state officials and the hospital defendants. She alleged only that

the county designated the hospital as a facility that may hold

individuals under section 5150 and that Dr. Shirazi treated her

with the hospital’s authorization. Such allegations were

insufficient to transform the conduct of the hospital defendants

51

“into state action under the joint action test.” (Sturm, supra,

2010 WL 725563 at p. 3.)

The government nexus test asks whether “‘there is such a

close nexus between the State and the challenged action that the

seemingly private behavior may be fairly treated as that of the

State itself.’” (Kirtley, supra, 326 F.3d at p. 1095; see Brentwood

Academy, supra, 531 U.S. at p. 295.) It is similar to the joint

action test in that both tests require that the state is “so far

insinuated into a position of interdependence with the [private

party] that it was a joint participant in the enterprise.” (Jackson

v. Metropolitan Edison Co. (1974) 419 U.S. 345, 351; see Jensen v.

Lane County (9th Cir. 2000) 222 F.3d 570, 574 [referring to a dual

“‘close nexus/joint action’ test”].) Julian’s allegations failed to

satisfy this test for the same reason they failed to satisfy the joint

action test: She did not allege any joint action or

interdependence between the hospital defendants and any

government entity or official.

Finally, under the state compulsion test, the court

considers “whether the coercive influence or ‘significant

encouragement’ of the state effectively converts a private action

into a government action.” (Kirtley, supra, 326 F.3d at p. 1094;

see Sutton, supra, 192 F.3d at pp. 836-837.) “The Supreme Court

has repeatedly held that ‘the mere fact that a business is subject

to state regulation does not by itself convert its action into that of

the State.’” (Caviness, supra, 590 F.3d at p. 816, quoting

American Manufacturers Mutual Insurance Co. v. Sullivan (1999)

526 U.S. 40, 52.) Indeed, “[e]ven extensive government

regulation of a private business is insufficient to make that

business a state actor if the challenged conduct was ‘not

52

compelled or even influenced by any state regulation.’”

(Caviness, at p. 816.)

The state did not exercise coercive influence over, or

provide significant encouragement to, the hospital defendants

regarding their decision under section 5150 to detain and treat

Julian or their manner in doing so. Section 5150 is permissive,

not mandatory, because it provides that an authorized person

“may, upon probable cause, take, or cause to be taken, the person

into custody.” (See Sturm, supra, 2010 WL 725563, at p. 2.)

Section 5150 also allows a private physician to exercise his or her

discretion to determine whether, “in the judgment of the

professional person,” an individual should be detained. (§ 5150,

subds. (e), (f); see Jacobs, supra, 108 Cal.App.4th at pp. 75-76.)

Thus, section 5150 “does not require or encourage 72-hour

detentions and merely allows private parties to exercise their

independent medical judgment regarding the need for treatment

and evaluation.” (Sturm, at p. 2; see also Benn v. Universal

Health System, Inc. (3d Cir. 2004) 371 F.3d 165, 171 [“although

the [Pennsylvania civil commitment law] permits a physician or

other ‘responsible party’ to file an application for an emergency

examination, we see nothing in the [law] that compels or even

significantly encourages the filing of an application”]; Harvey v.

Harvey (11th Cir. 1992) 949 F.2d 1127, 1130-1131 [“Georgia

statutes neither compel nor encourage involuntary commitment,

precluding [a private hospital] becoming a state actor by state

compulsion”].) Indeed, Julian alleged the hospital defendants

conducted an independent assessment to determine whether to

detain her.

Julian contends the hospital defendants made the decision

to hold her pursuant to substantive standards set forth in certain

53

state or county regulations and guidelines. The authorities she

cites, however, are only procedural guidelines for designating

facilities and physicians under the Act, not substantive

guidelines for determining whether or in what circumstances an

individual may or must be detained.15 (See Caviness, 590 F.3d at

p. 818 [no state compulsion or influence over charter school

operator’s personnel decisions even though the state had

authority to review and approve the operator’s personnel

policies].) Thus, the hospital defendants’ decision to detain

Julian did not qualify as state action under the state compulsion

test.

Julian cites several cases in support of her argument that

the hospital defendants’ actions constituted state action, but most

of those cases are distinguishable because they involved a state

15 Julian cites various regulations defining “psychiatrist” and

“psychologist” and establishing procedures for the approval of

facilities and professionals authorized under the Act. (See Cal.

Code Regs., tit. 9, §§ 622-625, 821, 821.1, 822.) She also cites the

Los Angeles County Department of Mental Health’s LPS

[Lanterman-Petris-Short Act] Designation Guidelines and

Process for Facilities Within Los Angeles County (Guidelines)

(available at

http://file.lacounty.gov/SDSInter/dmh/242404_LPSDesignationGu

idelines7thEd.revFeb.2016.pdf), which includes, for example, a

requirement that designated facilities have policies regarding a

variety of legal issues such as the initiation of 72-hour

detentions. (Guidelines, at § I.D.1.a.) The Guidelines do not

specify what that policy should be. These regulations and

policies do not constitute the type of substantive standards or

procedural guidelines that “‘could have compelled or influenced’”

the hospital defendants’ actions. (Caviness, 590 F.3d at p. 818.)

54

hospital, state contractor, or public employee, or a plaintiff who

succeeded in showing joint action between a private physician

and a government employee. (See Zinermon v. Burch (1990) 494

U.S. 113, 118; Ellis v. City of San Diego, Cal. (9th Cir. 1999) 176

F.3d 1183, 1186; Tewksbury v. Dowling (E.D.N.Y. 2001) 169

F.Supp.2d 103, 110.)16 Julian did not allege that the hospital

defendants were government employees or contractors or that

they undertook “a complex and deeply intertwined process” with

government employees that would justify treating the hospital

defendants as state actors. (Jensen, supra, 222 F.3d at p. 575.)

Julian also cites Cummings v. Charter Hospital of

Las Vegas, Inc. (1995) 111 Nev. 639 [896 P.2d 1137], which held a

private hospital and physician acted under color of law in

detaining the plaintiff under Nevada’s civil commitment law.

(Id. at p. 651.) The Nevada Supreme Court in that case held that

Nevada law “goes beyond mere regulation and authorizes the

exercise by private persons of significant power over those alleged

to be mentally ill.” (Ibid.) The court did not cite or attempt to

distinguish cases that have reached the opposite conclusion

under similar circumstances. (See, e.g., Ellison v. Garbarino

(6th Cir. 1995) 48 F.3d 192; Rockwell v. Cape Cod Hospital

(1st Cir. 1994) 26 F.3d 254; Harvey, supra, 949 F.2d 1127;

Spencer v. Lee (7th Cir. 1989) 864 F.2d 1376; Janicsko v. Pellman

(M.D.Pa. 1991) 774 F.Supp. 331, affd. (3rd Cir. 1992) 970 F.2d

899.) Moreover, as these and other cases show, even if

Cummings were persuasive authority, it represents a minority

view on the issue whether private hospitals or physicians are

16 Julian also miscites Doe v. Rosenberg, supra, 996 F.Supp.

343 as having found state action, when in fact the court in that

case did not. (See id. at pp. 349-358.)

55

state actors when they detain a person for mental health

treatment pursuant to state law. (See McGugan v. Aldana-

Bernier (2d Cir. 2014) 752 F.3d 224; Wittner v. Banner Health

(10th Cir. 2013) 720 F.3d 770; Estades-Negroni v. CPC Hospital

San Juan Capestrano (1st Cir. 2005) 412 F.3d 1; Benn, supra, 371

F.3d 165; Bass v. Parkwood Hospital (5th Cir. 1999) 180 F.3d

234; S.P. v. City of Takoma Park, 134 F.3d 260 (4th Cir.1998);

Doe v. Rosenberg, supra, 996 F.Supp. at p. 349 [collecting

additional cases].)17

17 Numerous other federal courts of appeals and district

courts have adopted this majority view. (See, e.g., Doe v.

Rosenberg (2d Cir. 1999) 166 F.3d 507; Pino v. Higgs (10th Cir.

1996) 75 F.3d 1461; Ahearn v. Inland Hospital (D.Me., Sept. 23,

2016, No. 1:16-CV-00457-DBH) 2016 WL 5338525; Much v.

Langston (C.D.Cal., Apr. 28, 2016, No. CV 16-0863 VAP (SS))

2016 WL 1732696; Caldwell v. Gupta (N.D.Ind., May 19, 2015,

No. 2:15-CV-157 JD) 2015 WL 2381356; Gordon v. Neugebauer

(N.D.Tex. 2014) 57 F.Supp.3d 766; Antwi v. Montefiore Medical

Center (S.D.N.Y., Nov. 18, 2014, No. 14 Civ. 840 (ER)) 2014 WL

6481996; Bayer v. Pocono Medical Center (M.D.Pa., July 23, 2014,

No. CIV.A. 3:13-1900) 2014 WL 3670499; Zhuang v. Saquet

(D.Mass., June 20, 2014, No. CIV.A. No. 09-12163-NMG) 2014

WL 2810320; Tate v. Kaiser Foundation Hospitals (C.D.Cal., Jan.

15, 2014, No. 2:12-CV-9075-CAS (RZx)) 2014 WL 176625; Sturm,

supra, 2010 WL 725563; Hopkins v. Planich (W.D.Wash., Nov. 9,

2009, No. C09-5405 FDB) 2009 WL 3765170; Bolmer v. Oliveira

(D.Conn. 2008) 570 F.Supp.2d 301; Nash v. Lewis (D.Or., Dec. 21,

2004, No. Civ.04-6291-CO) 2004 WL 2966913; Doe v. Harrison

(S.D.N.Y. 2003) 254 F.Supp.2d 338; Hendricks v. Rasmussen

(D.Minn., July 27, 2001, No. Civ. 01-783(DSD/JMM)) 2001 WL

1631325.) Such “‘numerous and consistent’” federal court

decisions are persuasive authority. (Morales v. 22nd District

56

Thus, under any of the tests, Julian failed to allege facts

showing the hospital defendants acted as state actors in deciding

to detain, assess, and treat her. The trial court properly

sustained the hospital defendants’ demurrers to Julian’s second

cause of action without leave to amend.

2. State Civil Rights Claim

Julian’s third cause of action against the hospital

defendants was for violation of civil rights under the California

Constitution. As noted, there is no cause of action for damages

for alleged violations of article I, section 2, subdivision (a)

(freedom of speech), article I, section 3, subdivision (a) (right to

petition the government), or article I, section 7, subdivision (a)

(due process and equal protection), when such action is not tied to

an established common law or statutory action, and Julian did

not allege facts showing a violation of article I, section 3,

subdivision (b), concerning her “right of access to information

concerning the conduct of people’s business.” With regard to her

claim under article I, section 1, for alleged violations of her right

to privacy, Julian failed to identify a legally protected privacy

interest, a reasonable expectation of privacy under the

circumstances, or a serious invasion of the identified privacy

interest. (See Sheehan, supra, 45 Cal.4th at p. 998; Hill, supra, 7

Cal.4th at pp. 35-37.)

With regard to her claim under article 1, section 13, for

unreasonable search and seizure, California law, like federal law,

requires state action, which is lacking here for the same reasons

it is lacking under federal law. (See Tate, supra, 2014 WL

Agricultural Association (2016) 1 Cal.App.5th 504, 516; see

Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 150.)

57

176625 at p. 4; People v. De Juan (1985) 171 Cal.App.3d 1110,

1120 [the “provisions prohibiting unreasonable searches and

seizures found in both the federal and California Constitutions

. . . are applicable only to searches and seizures by the

government or its agents”].) Therefore, the trial court properly

sustained the hospital defendants’ demurrers to Julian’s cause of

action for violations of the California Constitution without leave

to amend.

DISPOSITION

The judgment is affirmed. Respondents are to recover their

costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

SMALL, J.*

*Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

58