The opinion
Filed 3/13/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
STEVEN MALEAR,
Plaintiff and Appellant,
A163146
v.
STATE OF CALIFORNIA et al., (Marin County
Super. Ct. No. CIV-2002017)
Defendants and Appellants.
This putative class action arises out of the transfer of inmates from the
Chino Institute for Men (CIM) to San Quentin State Prison (San Quentin) in
May of 2020, which allegedly led to a severe outbreak of COVID-19 at the
prison. Plaintiff Steven Malear, a San Quentin inmate who was diagnosed
with COVID-19, filed a complaint with a cause of action alleging that
defendants State of California and California Department of Corrections and
Rehabilitation are responsible for the harm caused by their failure to take
reasonable action to summon medical care for prisoners who were in
immediate need of it.
The trial court sustained defendants’ demurrer to this cause of action
without leave to amend, holding that Malear failed to comply with the claim
presentation provisions of the Government Claims Act (Gov. Code, §§ 810 et
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this
opinion is certified for publication with the exception of parts B and C of the
Discussion.
1
seq., 945.4).1 In so holding, the court found that Malear had prematurely
filed this lawsuit before the rejection of his government claim and that he
could not cure this defect by filing an amended complaint after denial of the
claim.2
We reverse the judgment. In the published portion of this opinion, we
conclude the trial court erred in sustaining the demurrer for Malear’s failure
to allege strict compliance with the claim presentation requirement of the
Government Claims Act. The record establishes that, even though Malear
initiated this lawsuit before the public entity defendants denied his
government claim, Malear subsequently filed an amended complaint as of
right after the claim was denied and before defendants were served with the
original complaint or appeared in the action. The amended complaint alleged
defendants’ denial of his claim. On this record, Malear has established
substantial compliance with the statutory claim presentation requirement,
and the order sustaining defendants’ demurrer based on the lawsuit’s
premature filing cannot stand.
In the unpublished portion of this opinion, we determine that
defendants have not established an alternative basis for affirming the
judgment at this early stage in the litigation. That is, assuming the truth of
the material allegations in the amended complaint, we conclude Malear has
1 All further unspecified section references are to the Government Code.
Following the example of the California Supreme Court, we will refer to the
statute as the “Government Claims Act” or “the Act” rather than its informal
title, the “Tort Claims Act.” (City of Stockton v. Superior Court (2007) 42
Cal.4th 730, 741–742 (City of Stockton).)
2 The trial court overruled defendants’ demurrer to Malear’s second
cause of action for negligence against unnamed individual defendants, and
also denied defendants’ motion to strike the class allegations. Neither of
these rulings is at issue in this appeal.
2
stated facts sufficient to constitute a cause of action against defendants for
failure to summon medical care under section 845.6. Moreover, the amended
complaint does not disclose the existence of a statutory immunity defense as
a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
A. Allegations
In the operative second amended complaint (complaint), Malear makes
the following allegations.
On May 28, 2020, defendants began transferring approximately 194
inmates from CIM to San Quentin. The CIM transferees were at risk of
developing serious symptoms of COVID-19 (i.e., persons over the age of 65
and/or with underlying medical conditions), and although they had tested
negative two weeks prior, several had COVID-19 at the time of the transfer,
including some who exhibited symptoms before exiting the transfer bus at
San Quentin. San Quentin had no cases of COVID-19 among its prisoner
population at the time, but approximately one month following the transfer,
at least 1,400 inmates, including Malear, were diagnosed with COVID-19,
and several inmates have since died from it.
Individuals acting within the scope of their employment with
defendants allegedly knew or had reason to know that San Quentin inmates
were at immediate risk of being infected with COVID-19 upon the arrival of
the CIM transferees. Defendants’ employees failed to take reasonable action
to summon immediate medical care in the form of: timely screening and/or
testing of CIM transferees for COVID-19 prior to transfer; timely screening
and/or testing of class members for COVID-19 prior to the CIM transferees’
arrival at San Quentin; providing for immediate medical isolation of class
members from the CIM transferees prior to the transferees’ introduction into
3
the San Quentin prison population; and implementing a reasonable COVID-
19 medical infection prevention plan.
Based on these allegations, the complaint included a cause of action on
behalf of the putative class against defendants for failure to summon medical
care under section 845.6. The putative class is defined as all current and
former San Quentin inmates who were diagnosed with COVID-19 at any time
from May 28, 2020, through the final disposition of this action.3
B. Procedural History
The procedural history is derived from Malear’s pleadings and the
register of action, from which we take judicial notice of various filing dates in
the proceedings below. (Evid. Code, § 452, subds. (d)(1), (h).)
On July 15, 2020, Malear presented a claim to defendants referencing
the above allegations.
On July 27, 2020, Malear filed his original complaint in the superior
court. The original complaint contained no allegations regarding Malear’s
compliance with the claim presentation requirements of the Act.
Two days later, on July 29, 2020, the Government Claims Program
notified Malear of its rejection of his claim.
On October 23, 2020, Malear filed, as of right, a first amended
complaint that was identical to the original complaint and included new
allegations that Malear had now complied with the claim presentation
requirements.
On November 3, 2020, Malear served defendants with the first
amended complaint and a copy of the original complaint. The first amended
3 The complaint attached several exhibits, including an excerpt from a
joint case management conference statement filed in another case setting
forth “Defendants’ Position,” and media articles reporting on the outbreak of
COVID-19 at San Quentin.
4
complaint was filed and served within six months after the rejection of
Malear’s claim. (See § 945.6, subd. (a)(1).)
On January 6, 2021, upon the parties’ stipulation, Malear filed the
operative complaint.
Defendants demurred to the first cause of action on the following
grounds: (1) Malear’s noncompliance with the claim presentation statutes;
(2) Malear’s failure to state facts sufficient to constitute a cause of action; and
(3) defendants’ statutory immunity from liability. Relying principally on
Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211 (Lowry),
the trial court sustained the demurrer without leave to amend on the sole
ground that Malear did not comply with the statutory claim presentation
requirements.
Malear timely appealed from the ensuing judgment in favor of
defendants.
DISCUSSION
“In reviewing an order sustaining a demurrer without leave to amend,
the appellate court decides de novo whether the complaint sets forth facts
sufficient to state a cause of action. [Citation.] The court looks to the face of
the complaint and treats the demurrer as admitting all the material facts
alleged. [Citation.] However, the appellate court does not assume the truth
of contentions, deductions, or conclusions of fact or law.” (Doheny Park
Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132
Cal.App.4th 1076, 1085 (Doheny Park).)
A. Government Claims Act
Section 905.2, subdivision (b) requires the presentation of “all claims
for money or damages against the state” in all cases of “injury for which the
state is liable.” (§ 905.2, subd. (b)(3).) The State Board of Control must act
5
on a claim “within 45 days after the claim has been presented.” (§§ 912.4,
subd. (a), 912.8.) “If the board fails or refuses to act on a claim within” the
45-day period, “the claim shall be deemed to have been rejected by the board
on the last day of the period within which the board was required to act upon
the claim.” (§ 912.4, subd. (c).)
“[N]o suit for money or damages may be brought against a public entity
on a cause of action for which a claim is required to be presented . . . until a
written claim therefor has been presented to the public entity and has been
acted upon by the board, or has been deemed to have been rejected.”
(§ 945.4.) If the public entity provides written notice of its rejection of a
claim, any suit against the public entity must be brought no later than six
months after the notice is personally delivered or deposited in the mail.
(§ 945.6, subd. (a)(1).) If written notice is not given, the plaintiff has two
years from accrual of the cause of action to file suit. (Id., subd. (a)(2).)
Plaintiffs filing a complaint against a public entity “must allege facts
demonstrating or excusing compliance with the claim presentation
requirement. Otherwise, [their] complaint is subject to a general demurrer
for failure to state facts sufficient to constitute a cause of action.” (State of
California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1243 (Bodde).)
In Lowry, supra, 56 Cal.App.5th 211, the appellate court regarded the
presentation and denial of a government claim as a statutory prerequisite to
initiating suit. There, the plaintiff had filed a complaint against a harbor
district on the same day that he applied for permission to present a late
government claim under section 911.4. (Lowry, at pp. 215–216.) After his
late claim was rejected, the plaintiff served the district with summons and
complaint, and the district filed an answer asserting various affirmative
defenses, including failure to comply with the Act. (Id. at p. 216.) The trial
6
court granted judgment on the pleadings, and the Lowry court affirmed,
concluding the plaintiff “failed to comply with the Act because he filed a
complaint before his claim was rejected.” (Id. at p. 219.)
Here, the pleadings and judicially-noticed matters reflect that Malear
commenced suit before his claim was actually or deemed rejected. However,
“[a] party may amend its pleading once without leave of the court at any time
before the answer, demurrer, or motion to strike is filed.” (Code Civ. Proc.,
§ 472, subd. (a).) “An ‘amended’ complaint supersedes all prior complaints”
(Lee v. Bank of America (1994) 27 Cal.App.4th 197, 215), and “the original
complaint ceases to have any effect either as a pleading or as a basis for
judgment” (State Compensation Ins. Fund v. Superior Court (2010) 184
Cal.App.4th 1124, 1130–1131).4 Consistent with these rules of civil practice,
and unlike the situation in Lowry, Malear filed the first amended complaint
alleging denial of his government claim before defendants appeared in the
action. That amended complaint operated to supersede the prematurely-filed
original complaint, which ceased to have any effect. On this record, we
conclude Malear has demonstrated substantial compliance with the claim
presentation requirement of the Act.
The weight of authority supports this conclusion. As Lowry recognized,
the appellate courts of this state have long “found compliance with the Act
even though complaints were filed prematurely.” (Lowry, supra, 56
Cal.App.5th at pp. 219, 220–221, citing Cory v. City of Huntington Beach
(1974) 43 Cal.App.3d 131 (Cory), Savage v. State (1970) 4 Cal.App.3d 793,
796, and Taylor v. City of Los Angeles (1960) 180 Cal.App.2d 255 (Taylor).)
4 These rules of civil practice apply here because the Government Claims
Act does not provide otherwise. (See § 945.2.)
7
Cory is particularly instructive. There, the plaintiff presented a claim
to the city and filed his complaint in court two days later, before the city had
taken action on the claim. (Cory, supra, 43 Cal.App.3d at p. 133.) The city
was not served with the complaint and summons until nearly eight months
later. (Ibid.) On appeal, the summary judgment obtained by the city was
reversed. Rejecting the city’s reliance on cases requiring strict compliance
with the Act, the Cory court explained: “[I]n assessing the formal adequacy of
a claim, courts have applied a test of substantial compliance. [Citation.]
Similarly, where the statutory purpose has been realized by other means,
strict compliance has not been required.” (Id. at p. 136.) Cory further noted
that “the city could not have been prejudiced by the premature filing of the
action since the complaint was not served until the [45-day] time period had
run. Thus the defect had ceased to exist before the city was even formally
notified that suit had been brought. [¶] To call the city’s defense ‘highly
technical’ would not be an overstatement. . . . ‘At the time the answer of the
city was filed, the city had received every benefit which a provision for
rejection prior to suit is intended to serve.’ ” (Ibid.)
More recently, the Supreme Court reaffirmed that “a plaintiff need not
allege strict compliance with the statutory claim presentation requirement.”
(Bodde, supra, 32 Cal.4th at p. 1245; see California-American Water Co. v.
Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1286–1287.) The main
question in Bodde was whether allegations demonstrating or excusing
compliance with the Act must be pleaded in order to state a claim against a
public entity. (Bodde, at p. 1237.) In answering this question in the
affirmative, the court cited approvingly to the premature filing cases because
they “actually enforced the claim presentation requirement and did not
excuse the plaintiffs from alleging facts showing or excusing compliance.”
8
(Id. at pp. 1244, 1243, citing Radar v. Rogers (1957) 49 Cal.2d 243, 246
(Radar), Cory, supra, 43 Cal.App.3d at p. 133, Petersen v. City of Vallejo
(1968) 259 Cal.App.2d 757, 768, and Taylor, supra, 180 Cal.App.2d at p. 258.)
Bodde also reiterated that noncompliance with the claim presentation
requirement “does not divest the trial court of subject matter jurisdiction over
causes of action against public entities.” (Bodde, supra, 32 Cal.4th at p. 1240,
fn. 7.) Thus, the trial court here did not lack jurisdiction over the matter
when Malear filed an amended complaint that superseded the prematurely-
filed original complaint. (Cf. ConnectU LLC v. Zuckerberg (1st Cir. 2008) 522
F.3d 82, 91, 96 [dismissal of action based on original complaint’s defective
diversity jurisdiction theory reversed where, before defendants filed a
responsive pleading, plaintiff filed amended complaint as of right that
asserted federal question jurisdiction].) Just as in Cory, the prematurity
defect “ceased to exist” once the amended complaint was filed, and because
amendment occurred less than six months after Malear’s claim was denied,
defendants “ ‘received every benefit which a provision for rejection prior to
suit is intended to serve.’ ” (Cory, supra, 43 Cal.App.3d at p. 136; cf. Radar,
supra, 49 Cal.2d at p. 249 [finding substantial compliance with a Probate
Code claims filing requirement where amended and supplemental complaint
cured prematurity defect of original complaint].)
As defendants point out, the Lowry decision regarded DiCampli-Mintz
v. County of Santa Clara (2012) 55 Cal.4th 983 (DiCampli-Mintz) as
demonstrating the Supreme Court’s rejection of Cory and other appellate
decisions that approved or applied a substantial compliance test for cases
involving prematurity defects. (Lowry, supra, 56 Cal.App.5th at p. 220.) We
respectfully disagree with Lowry’s overly broad reading of DiCampli-Mintz.
For the reasons discussed below, we conclude the substantial compliance
9
doctrine remains viable in the wake of DiCampli-Mintz under the limited
circumstances presented in this case.
The statutory provision at issue in DiCampli-Mintz was section 915,
subdivision (a) (915(a)), which identifies the individuals who may receive
claims on behalf of a local public entity (“clerk, secretary, or auditor”) as well
as the acceptable methods of delivery (personal or mail delivery to said
individuals “or to the governing body at its principal office”). Subdivision (e)
of section 915 goes on to provide that a misdirected claim may be “deemed”
compliant if it is “actually received by the clerk, secretary, auditor, or board
of the local public entity.” In DiCampli-Mintz, the plaintiff had allegedly
been injured during a medical procedure at a county hospital, and she
delivered her claim to an employee of a medical staffing office in the
hospital’s administration building. (DiCampli-Mintz, at p. 987.) The claim
was never personally served on or mailed to the persons identified in section
915. (Ibid.) The Court of Appeal nevertheless held that the plaintiff
substantially complied with the Act because, under Jamison v. State of
California (1973) 31 Cal.App.3d 513, presentation of a claim to the wrong
entity may be substantially compliant if the party served has a duty to notify
the proper statutory agent. (DiCampli-Mintz, at pp. 989, 994–995.)
The Supreme Court reversed, concluding the appellate court “erred by
failing to adhere to the plain language of section 915.” (DiCampli-Mintz,
supra, 55 Cal.4th at p. 992.) As the high court explained, it was “uncontested
that the claim was never delivered or mailed to the ‘clerk, secretary or
auditor’ as required by section 915(a). Likewise, the ‘clerk, secretary, auditor
or board’ never actually received the claim. [Citation.] Thus, neither section
915(a)’s specific requirements for compliance, nor section 915(e)(1)’s provision
10
deeming actual receipt to constitute compliance, were satisfied.” (DiCampli-
Mintz, at pp. 991–992.)
In so concluding, DiCampli-Mintz rejected the Jamison rule as
unsupported by any California decisional or statutory authority, repudiated
by the same panel in a later decision, and in conflict with other authorities.
(DiCampli-Mintz, supra, 55 Cal.4th at pp. 994–995, citing Del Real v. City of
Riverside (2002) 95 Cal.App.4th 761, Life v. County of Los Angeles (1991) 227
Cal.App.3d 894.) DiCampli-Mintz further criticized the Jamison rule as
“creat[ing] uncertainty about how and where claims must be delivered,” since
misdirected claims could be received and forwarded to multiple people in
different departments, “making it difficult to determine whether the claims
were actually delivered to, or received by, a department or employee charged
with the overall management of claims against the county.” (DiCampli-
Mintz, at p. 997.)
Fairly read, DiCampli-Mintz did not purport to abrogate the
substantial compliance doctrine in all cases subject to the Government
Claims Act. Rather, it rejected Jamison’s use of the doctrine to rewrite the
“delivery provisions language of the statute” in a manner that was
inconsistent with the statute’s purpose and that threatened to “exponentially
expand[]” the statute’s scope and create uncertainty in the claim presentation
process. (DiCampli-Mintz, supra, 55 Cal.4th at pp. 987, 996.)5 Those
concerns are absent here.
5 In quoting DiCampli-Mintz as “requir[ing] that claims ‘satisfy the
express . . . language of the statute’ ” (Lowry, supra, 56 Cal.App.5th at p. 220,
citing DiCampli-Mintz, supra, 55 Cal.4th at p. 987), Lowry substituted
ellipses for the words “delivery provisions,” thereby expanding DiCampli-
Mintz beyond the scope of its actual rationale and holding.
11
Defendants are correct that the filing of an amended complaint as of
right after a claim is rejected is not the same as “bringing suit” after rejection
under a strict reading of section 945.4’s language. But the doctrine of
substantial compliance, by its nature, does not require strict compliance.
Rather, it excuses strict compliance “ ‘ “when there has been ‘actual
compliance in respect to the substance essential to every reasonable objective
of the statute.’ ” ’ ” (Andrews v. Metro Transit Sys. (2022) 74 Cal.App.5th 597,
607, italics omitted (Andrews).)
Here is such a case. To wit, the statutory objectives of section 945.4 are
“ ‘to provide the public entity sufficient information to enable it to adequately
investigate claims and to settle them, if appropriate, without the expense of
litigation’ ” and to “ ‘enable the public entity to engage in fiscal planning for
potential liabilities and to avoid similar liabilities in the future.’ ” (City of
Stockton, supra, 42 Cal.4th at p. 738.) By itself, the premature
commencement of a lawsuit against a public entity does not deprive the
entity of its ability to consider a pending government claim, whether for
immediate purposes or for fiscal and other types of planning. Nor does the
mere filing of a premature complaint cause the public entity to incur
litigation costs, as the various statutory deadlines for appearing in an action
are triggered by service of the summons and complaint. (See Code Civ. Proc.,
§§ 412.20, subd. (a)(3) [time for responding to complaint], 430.40, subd. (a)
[time for demurring], 435, subd. (b)(1) [time for moving to strike].)6 Thus, for
practical purposes, the lawsuit here did not begin in earnest until defendants
were served with Malear’s first amended complaint, at which point
6 Likewise, a civil plaintiff may not propound discovery until the
defendant is served with summons or has appeared in the action. (Code Civ.
Proc., §§ 2025.210, 2030.020, subd. (b), 2031.020, subd. (b), 2033.020,
subd. (b).)
12
defendants’ investigation and consideration of Malear’s claim was already
complete.
Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237
does not aid defendants’ position. There, the plaintiff sought to cure her
failure to file a prelawsuit claim by filing a claim a year after commencing
her lawsuit. (Id. at p. 247.) At that point, the court concluded, it was too late
to “ ‘ “ ‘provide the public entity sufficient information to enable it to
adequately investigate claims and to settle them, if appropriate, without the
expense of litigation.’ ” ’ ” (Ibid.) Here, in contrast, nothing in the pleadings
or judicially-noticed matters indicates that defendants incurred litigation
expenses prior to the denial of Malear’s prelawsuit claim.
Nor does application of the substantial compliance doctrine to the facts
before us unduly “ ‘expand the rights of plaintiffs against governmental
entities’ ” or otherwise frustrate the Act’s intent “ ‘to confine potential
governmental liability to rigidly delineated circumstances.’ ” (DiCampli-
Mintz, supra, 55 Cal.4th at p. 991.) In this regard, defendants assert that
Malear could have cured the prematurity defect by simply dismissing his
original complaint and filing a new action. While that may be true, we find it
appropriate to elevate substance over form where, as here, a plaintiff’s
substantial compliance with the claim presentation statute fulfills the
essential statutory objectives. (See Andrews, supra, 74 Cal.App.5th at p. 607;
Cory, supra, 43 Cal.App.3d at p. 136 [substantial compliance where public
entity received every benefit of provision for rejection prior to suit].)
13
In concluding the circumstances in the present case are sufficient to
demonstrate substantial compliance,7 we emphasize our decision today is a
narrow one that will not create uncertainty in the claim presentation process.
To the contrary, we simply hold that when a lawsuit is prematurely filed
before the actual or deemed denial of a government claim, application of the
substantial compliance doctrine is generally appropriate if the original
complaint is not served before an amended complaint alleging the requisite
denial of a government claim is filed in compliance with Code of Civil
Procedure section 472.
B. Failure to Summon Medical Care
Defendants contend the judgment should be affirmed on the alternative
ground that Malear failed to allege facts sufficient to constitute a cause of
action for failure to summon medical care. We conclude otherwise.
Section 845.6 provides in relevant part that public entities and public
employees are not liable for injuries proximately caused by the failure of the
employee to furnish or obtain medical care for a prisoner in custody, except “if
the employee knows or has reason to know that the prisoner is in need of
immediate medical care” and “fails to take reasonable action to summon such
medical care.” As such, the statute “confers a broad general immunity on the
public entity” but provides for limited liability in “those situations where the
public entity intentionally or unjustifiably fails to furnish immediate medical
care.” (Watson v. State of California (1993) 21 Cal.App.4th 836, 841
(Watson).)
7 In light of our conclusion, we need not address Malear’s additional
contentions that the trial court erred by applying Lowry retroactively and by
not treating the first amended complaint as a “ ‘new action.’ ”
14
Assuming the truth of the material allegations in the complaint
(Doheny Park, supra, 132 Cal.App.4th at p. 1085), we conclude Malear pleads
facts sufficient to trigger liability under section 845.6. Liberally construed,
the first cause of action establishes that defendants’ employees knew or had
reason to know at the time of the May 2020 transfer that San Quentin
inmates were at immediate risk of contracting COVID-19 if no proper
program of medical testing and quarantine was put in place. The employees
unreasonably failed to summon medical care to provide for the immediate
screening and/or testing of the CIM transferees and the immediate medical
isolation of class members from the COVID-19-positive transferees (or vice
versa) prior to the transferees’ introduction into the San Quentin prison
population. These failures resulted in the outbreak of COVID-19 at San
Quentin, which was allegedly free of COVID-19 prior to the transfer, and
proximately resulted in harm to Malear and the putative class members.
We acknowledge that these allegations, based on the unique and
unprecedented circumstances described in the complaint, do not neatly align
with the garden variety cases of public entity liability under section 845.6.
Nevertheless, the alleged conduct comports with the language of section
845.6, and defendants cite no cases that invalidate Malear’s theory of public
entity liability as a matter of law. Accordingly, a general demurrer does not
lie. (See, e.g., Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298,
316–317 [demurrer erroneously sustained where plaintiffs alleged that
decedent’s suicide was proximate result of county sheriffs’ failure to summon
medical care when they knew or had reason to know he had suicidal
tendencies].)
In arguing to the contrary, defendants contend Malear fails to allege a
“ ‘serious and obvious medical condition’ ” for purposes of stating a claim
15
under section 845.6 because he fails to allege that he was diagnosed with
COVID-19 at the time of the May 2020 transfer. We note that although some
courts have held that “[l]iability under section 845.6 is limited to serious and
obvious medical conditions” requiring immediate care (Watson, supra, 21
Cal.App.4th at p. 841), such language is not found in the statute itself. In
any event, we conclude the complaint sufficiently states facts that support
the inference that COVID-19 is a “serious” (indeed fatal) infectious disease to
some who contract it, and that the resulting need for immediate medical
quarantine measures was “obvious” to all by May 2020. Liberally construed,
these allegations fall within the scope of public entity liability under 845.6.
Lucas v. City of Long Beach (1976) 60 Cal.App.3d 341 does not compel a
contrary conclusion. There, the court held that a city was not liable under
section 845.6 for the wrongful death of a juvenile prisoner who committed
suicide in his cell where the decedent’s mother “offered no evidence as to
what kind of medical care she claims should have been provided” and “how
such medical care could have prevented the death.” (Lucas, at p. 350.) Here,
in contrast, Malear sufficiently identifies the type of medical care that he
claims should have been immediately summoned (i.e., testing and isolation)
and how such care would have prevented harm to the putative class.
Defendants further contend that public entities have no liability under
section 845.6 for failing to properly diagnose and treat medical conditions
such as COVID-19. (See Watson, supra, 21 Cal.App.4th at pp. 842–843 [no
duty under section 845.6 to assure medical staff properly diagnosed and
treated medical condition]; Nelson v. State of California (1982) 139
Cal.App.3d 72, 78 [no liability under section 845.6 for failure to prescribe
correct medication].) But this argument ignores the gravamen of Malear’s
section 845.6 claim which, reasonably read, is not based on the negligent
16
provision of medical care, but on the failure to summon preventive medical
care for inmates who were at immediate risk of COVID-19 infection due to
the May 2020 inmate transfer. Indeed, even if some portions of the complaint
can be construed as alleging the negligent provision of medical care rather
than a pure failure to summon care, “[a] demurrer does not lie to a portion of
a cause of action” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680,
1682) and provides no basis for affirming the judgment here.
At oral argument, the deputy attorney general argued that Malear has
already admitted, through his complaint and its exhibits, that the CIM
inmates were tested before and after their arrival at San Quentin and were
placed in a 14-day quarantine at San Quentin. Based on these perceived
admissions, the deputy attorney general contended that Malear is effectively
challenging how preventive medical measures were carried out, which
amounts to a medical malpractice claim falling outside the narrow exception
to immunity under section 845.6. (Castaneda v. Department of Corrections &
Rehabilitation (2013) 212 Cal.App.4th 1051, 1070 [§ 845.6 narrowly
authorizes claim against public entity for failure to summon medical care
only, not for malpractice in providing that care].)
True, the complaint alleges that the CIM transferees were tested
roughly two weeks before the transfer and that an unspecified number of
transferees tested positive upon their arrival at San Quentin. But as
indicated, Malear’s claim, reasonably construed, includes material allegations
supporting a duty to summon testing of all transferees at the time of transfer,
and, more importantly, a duty to isolate all transferees upon their arrival to
San Quentin. Contrary to the deputy attorney general’s contention at oral
argument, the exhibits attached to Malear’s complaint are not reasonably
viewed as expressing his admission that such preventive measures were
17
actually taken. While facts appearing in exhibits to a complaint generally
take precedence over contradictory factual pleadings (Mead v. Sanwa Bank
California (1998) 61 Cal.App.4th 561, 567–568), here, the cited portions of
the exhibits were clearly delineated as (1) litigation statements made by
defendants in a court filing, and (2) statements by prison officials to the
media regarding their version of the events. We decline to construe Malear’s
attachment of these exhibits as an admission or adoption of the facts gleaned
from the adversarial statements of defendants and their agents about the
main facts in contention in this case.
We reiterate that this case presents a novel theory of public entity
liability under section 845.6, and we do not speculate on the merits of
Malear’s action, which will turn on further development of factual matters
beyond the scope of the pleadings. For now, we are bound to liberally
construe and assume the truth of the allegations of the complaint, and on
that basis conclude that Malear has stated facts sufficient to constitute a
cause of action against defendants.8
8 At the tail end of oral argument, Malear’s counsel took a position that
appeared at odds with the allegations of the complaint. Specifically, counsel
stated this case centers on employee decision-making leading up to the
transfer and does not concern what happened or did not happen after the
transfer. On review of a demurrer ruling, however, we must focus on the
allegations of the complaint. (Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.) Accordingly, for purposes of this appeal, we will not
construe counsel’s remarks as altering the factual basis of Malear’s well-
pleaded cause of action, as statements of counsel during argument generally
are not binding on the client unless made in the form of a stipulation.
(Haynes v. Hunt (1962) 208 Cal.App.2d 331, 335.) Nonetheless, in view of
counsel’s remarks, a further amendment to clarify the precise nature of the
failure to summon claim would likely be of assistance to the parties and the
trial court going forward. (See Code Civ. Proc. 473, subd. (a)(1) [court may,
after notice to adverse party, allow amendment to any pleading in
furtherance of justice and upon any terms as may be just]; Nestle v. Santa
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C. Statutory Immunities
Defendants contend they are immune from liability under various
statutes, namely, the California Emergency Services Act (ESA) (§ 8550 et
seq.), section 8658, and section 855.4. We conclude a demurrer does not lie on
this basis because the claimed statutory immunities are not evident from the
face of the pleadings or judicially-noticed matters.
ESA provides, among other things, for the conferral of emergency
powers on the Governor and on the chief executives and governing bodies of
political subdivisions of the state “to provide for state assistance in the
organization and maintenance of the emergency programs of such political
subdivisions.” (§ 8550, subd. (a).) ESA’s purpose “is self-explanatory. In
situations in which the state must take steps necessary to quell an
emergency, it must be able to act with speed and confidence, unhampered by
fear of tort liability.” (Thousand Trails, Inc. v. California Reclamation Dist.
No. 17 (2004) 124 Cal.App.4th 450, 458.)
ESA’s immunity provision is located in section 8655, which provides
that “[t]he state or its political subdivisions shall not be liable for any claim
based upon the exercise or performance, or the failure to exercise or perform,
a discretionary function or duty on the part of a state or local agency . . . in
carrying out the provisions of [ESA].” The immunity under section 8655 is
broad, as it “covers not only the exercise of discretion, but also the
‘performance, or the failure to . . . perform, a discretionary function’ in
carrying out the provisions of [ESA].” (Soto v. State of California (1997) 56
Cal.App.4th 196, 200–201.)
Monica (1972) 6 Cal.3d 920, 939 [strong policy in favor of liberal allowance of
amendments].)
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Here, Malear’s complaint does not explicitly base defendants’ liability
on their performance or failure to perform a discretionary function “in
carrying out the provisions of” ESA. (§ 8655.) Notably, there is no indication
on the face of the pleadings or in judicially-noticed documents that
defendants were acting pursuant to ESA in transferring CIM inmates to San
Quentin. In any event, the exercise of the state’s police powers under ESA
“must be reasonable and proper under the circumstances.” (Adkins v. State of
California (1996) 50 Cal.App.4th 1802, 1816, disapproved on other grounds in
City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1148.) For the
reasons discussed, we conclude Malear alleges facts that, if true, could
support the conclusion that defendants’ employees failed to take reasonable
actions related to the CIM transfer. Accordingly, it is not appropriate at the
pleading stage to determine whether immunity under section 8655 applies as
a matter of law.
Defendants also rely on the immunity provided in section 8658, which
states: “In any case in which an emergency endangering the lives of inmates
of a state . . . penal or correctional institution has occurred or is imminent,
the person in charge of the institution may remove the inmates from the
institution. . . . Such person shall not be held liable, civilly or criminally, for
acts performed pursuant to this section.” Defendants contend this immunity
for persons in charge of penal or correctional institutions applies to them via
section 815.2, subdivision (b), which provides that “a public entity is not
liable for an injury resulting from an act or omission of an employee of the
public entity where the employee is immune from liability.”
Again, there are no facts on the face of the pleadings or in judicially-
noticed documents indicating the applicability of this immunity by its terms.
Malear does not allege that persons in charge of CIM or San Quentin were
20
responsible for the alleged conduct at issue. Accordingly, the existence of
immunity under sections 8658 and 815.2, subdivision (b), cannot be resolved
on demurrer.
Finally, defendants invoke subdivision (a) of section 855.4, which
provides that “a public entity . . . is [not] liable for an injury resulting from
the decision to perform or not to perform any act to promote the public health
of the community by preventing disease or controlling the communication of
disease within the community if the decision whether the act was or was not
to be performed was the result of [an] exercise of discretion . . . whether or
not such discretion be abused.” Subdivision (b) of section 855.4 further
provides that “[n]either a public entity nor a public employee is liable for an
injury caused by an act or omission in carrying out with due care a decision
described in subdivision (a).”
Once again, the existence of immunity under this statute is not
apparent from the face of the pleadings or in judicially-noticed documents.
Malear does not purport to base defendants’ liability on their discretionary
decisions to perform or not to perform an act to promote the public health of
the community by preventing the communication of disease. Reasonably
construed, Malear’s claim arises instead from the alleged failure of
defendants’ employees to summon medical care once they knew or had reason
to know that San Quentin inmates were at immediate risk of contracting
COVID-19 upon the arrival of the CIM transferees. Defendants cite no
authority extending the immunity of section 855.4 to public health decisions
affecting a single prison as distinct from the “community.” Finally, even
assuming the decision to transfer CIM inmates to San Quentin was a
discretionary act to promote the public health of the community within the
meaning of section 855.4, subdivision (a), the gravamen of the claim against
21
defendants appears to center on the manner in which their employees carried
out this decision. Under section 855.4, subdivision (b), the immunity applies
to acts or omissions “carr[ied] out with due care,” and for the reasons
discussed, Malear sufficiently alleges that defendants’ employees failed to
take reasonable care in making decisions related to the May 2020 transfer.
For all of these reasons, we conclude the demurrer to the first cause of
action should have been overruled.
DISPOSITION
The judgment is reversed. Malear is entitled to his costs on appeal.
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
PETROU, J.
22
Trial Court: Marin County Superior Court
Trial Judge: Hon. James T. Chou
Counsel: Hersh & Hersh, Charles C. Kelly, II; Law Office of
Matthew D. Carlson, Matthew D. Carlson; Pier 5 Law
Offices, Ben Rosenfeld and Tyler R. Smith, for Plaintiff
and Appellant
Rob Bonta, Attorney General, Monica N. Anderson, Senior
Assistant Attorney General, Jeffrey T. Fisher,
Supervising Deputy Attorney General, and Cassandra J.
Shryock, Deputy Attorney General for Defendants and
Respondents
Malear v. State of California (A163146)
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