Judge: Michael Shultz, Case: 20STCV44539, Date: 2023-03-28 Tentative Ruling
Case Number: 20STCV44539 Hearing Date: March 28, 2023 Dept: A
20STCV44539
Danielle Sheremetiev v. County of Los Angeles, et al.
[TENTATIVE] ORDER GRANTING
I.
BACKGROUND
The
Second Amended Complaint (“SAC”) alleges that on September 13, 2018, Plaintiff
was taken into the custody of Defendant, County of Los Angeles (“County”), at
the Lynwood detention facility. Plaintiff alleges that Defendants denied her
medically necessary medications and treatment after she slipped and fell. Plaintiff fell again while climbing to the top
bunk. Plaintiff alleges claims for:
1. Failure to Summon Immediate Medical
Care
2. Negligence
3. Intentional Infliction of Emotional
Distress
4. Violation of the Bane Civil Rights Act
5. Negligence -- Medical Malpractice
III. ARGUMENTS
Defendants request an
order granting summary judgment or adjudication of all causes of action alleged
against all Defendants. Among other arguments specifically addressed below, Defendants
contend Plaintiff does not have evidence to support the claims or establish
causation against Defendants.
In
opposition, Plaintiff argues that Defendants have not met their burden
entitling them to judgment or adjudication. Defendants failed to address
material facts alleged in the operative pleading.
In
reply, Defendants contend that Plaintiff’s evidence is insufficient to
establish that Defendants’ conduct fell below the standard of care. Plaintiff
failed to controvert any material issues of fact.
II.
LEGAL
STANDARDS
Summary
judgment is proper “if all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Until the moving defendant has discharged its burden of
proof, the opposing plaintiff has no burden to come forward with any evidence.
Once the moving party has discharged its burden as to a particular claim,
however, the plaintiff may defeat the motion by producing evidence showing that
a triable issue of one or more material facts exists as to that cause of
action. (Code
Civ. Proc., §437c(p)(2)).
The court strictly construes the
moving party's supporting evidence while the opposing party’s evidence is
liberally construed. Doubts as to the propriety of the motion should be
resolved against granting the motion. (D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20).
The court does not evaluate the credibility of testimony. (Binder
v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840). The
court applies the three-step analysis to motions for summary judgment or
adjudication: (1) identify the issues framed by the pleading, (2) determine
whether the moving party established facts which negate the opponents’ claim,
(3) if a defendant meets its threshold burden of persuasion and the burden
shifts, determine whether the opposing party has controverted those facts with
admissible evidence. (Torres
v. Reardon (1992) 3 Cal.App.4th 831, 836).
A party can move for summary adjudication as to one or more causes of
action within an action or one or more claims for damages if the party contends
that there is no affirmative defense to any cause of action. A motion for
summary adjudication shall be granted only if it completely disposes of a cause
of action, an affirmative defense, a claim for damages, or an issue of duty.
(Code Civ. Proc., § 437c(f)(1). In ruling on the motion, the court considers
the material issues defined by the allegations of the complaint. (Lewinter v. Genmar Industries, Inc.
(1994) 26 Cal.App.4th 1214, 1223).
III.
DISCUSSION
A. Judicial
Notice
The Court grants Defendants’ request for judicial
notice of Plaintiff’s federal complaint filed August 8, 2019, bearing Case No.
2:19-CV-06852-JFW-MAA and Plaintiff’s first amended complaint filed in this
action. (RJN Exs. A and C; Evid. Code, § 452(d) [permits judicial notice of
court records]). The Court also grants Defendants’ request for judicial notice
of Plaintiff’s government claims for damages submitted to the County of Los
Angeles dated March 18, 2019, and the County’s denial of the claim dated April
11, 2019. (RJN Ex. B, Evid. Code, §. Code § 452(c); Rodas
v. Spiegel (2001) 87 Cal.App.4th 513, 518 [permits
judicial notice of the official acts of a state including records, orders and
reports of its administrative agencies]).
B. The
undisputed facts and Plaintiff’s allegations
The undisputed facts establish that on September 23, 2018, (“the
first fall”) Plaintiff was released from her cell and slipped and fell when she
ran out. (UF 6). Defendants allegedly failed to provide medical attention for
20 minutes. (SAC, ¶ 24). The first cause of action is also based on a February
13, 2019, incident (“the bunk fall”), when Plaintiff fell as she tried to climb
to the top bunk.
C.
First
cause of action for violation of Government Code section 845.6 alleged against
County and Brianna Vallejo (Deputy Vallejo). (Issues 1 and 3).
Plaintiff alleges that Defendants
failed to furnish or obtain medical care in violation of Government Code
section 845.6. The statute generally immunizes a public entity for injury
resulting from the failure to furnish or obtain medical care for a prisoner unless
Plaintiff establishes that “the employee knows or has reason to know that the
prisoner is in need of immediate medical care, and he fails to take reasonable
action to summon such medical care.” (Gov.
Code, § 845.6). The statute "is very narrowly written
to authorize a cause of action against a public entity for its employees'
failure to summon immediate medical care only, not for certain employee's
malpractice in providing that care." (Castaneda
v. Department of Corrections & Rehabilitation
(2013) 212 Cal.App.4th 1051, 1070). Liability is limited to
“serious and obvious medical conditions requiring immediate care." (Watson
v. State of California (1993) 21 Cal.App.4th 836, 841). There
must be actual or constructive knowledge that the prisoner needs immediate
medical care. (Id.).
Defendants argue
that the alleged delays in providing Plaintiff care after the first fall are
relevant to whether Defendants’ conduct in providing such care was reasonable,
and therefore, is not within the scope of the statute. (Castaneda
v. Department of Corrections & Rehabilitation
(2013) 212 Cal.App.4th 1051, 1072 [“the failure of these two
public employees to provide further treatment, or to ensure further diagnosis
or treatment, or to monitor Castaneda or follow up on his progress, are all
facts which go to the reasonableness of the medical care provided, but do not
constitute a failure to summon medical care.”]. A practitioner’s failure
to provide necessary medication or treatment once summoned is a breach of duty
to and is medical malpractice. (Nelson
v. State of California (1982) 139 Cal.App.3d 72, 81).
Plaintiff contends
she was not seen in the orthopedic clinic for 16 days after the ER physician
“urgently” referred her. (See Plaintiff’s response to UF 12). This does
not controvert the material fact that medical care was summoned after the first
fall. Plaintiff admits being seen by other health care providers through
November 28, 2018. When she was discharged from the orthopedic clinic. (UF 13-16).
Defendants’ alleged failure to provide Plaintiff with care in “the course of
treatment of a prisoner” is medical malpractice, not a failure to summon (Nelson
at 80).
Plaintiff fell
again on February 15, 2019, hitting her head on a bunk and sustaining injury. It is undisputed that after this fall,
Plaintiff was seen and assessed by a nurse. (UF 18). Plaintiff attempts to
dispute this fact by contending that Vallejo ordered her to a top bunk despite
her knee fracture. This evidence does not controvert the material fact that care
was summoned and provided. Whether Vallejo’s conduct in ordering Plaintiff to
use the top bunk was negligent is not relevant to the first cause of action. Nor does Plaintiff dispute that she was seen
“multiple times” in February and March of 2019. UF 19. Therefore, UF 18 and 19 remain
undisputed.
Plaintiff disputes
UF 20, contending that Nurse Practitioner Mbi denied a consult by Dr. Cardenas,
who never followed up thereafter. But this
issue is relevant to negligence, not failure to summon immediate medical care.
Plaintiff admits that through September 2018 through April 2019, Plaintiff was
seen approximately 70 times by various health care providers throughout her incarceration.
(UF 22). Additionally, there is no dispute that the Deputy Vallejo was not in the
room when Plaintiff allegedly fell from her top bunk and did not witness the
fall, reasonably inferring that Deputy Vallejo was not in a position to
“summon” immediate medical care. (UF 36, UF 38).
This statutory
claim also fails because it is undisputed that the Defendants’ conduct as jail
personnel did not cause or contribute to Plaintiff’s injuries. (Issues 2 and 4).
The issue of causation is ordinarily a question of fact for the jury’s
determination and may not be resolved by summary judgment unless the undisputed
facts establish no room for a reasonable difference of opinion. (Vasquez
v. Residential Investments, Inc. (2004) 118 Cal.App.4th
269, 288). Moreover,
"[t]he law is well settled that in a personal injury action causation must
be proven within a reasonable medical probability based upon
competent expert testimony." (Jameson
v. Desta (2013) 215 Cal.App.4th 1144, 1166).
1) Plaintiff’s
objections
Plaintiff’s objections to the declaration of Paul
Adler, D.O. (Defendant’s expert on correctional medicine, including protocols
for treating inmates in a detention facility setting), are OVERRULED. Plaintiff
contends that Dr. Adler is not qualified to render an opinion on psychiatry or
orthopedic medicine. However, Dr. Adler
opines on whether the Defendants’ conduct complied with the standard of care in
correctional medicine, not whether Defendants adequately diagnosed and treated
Plaintiff’s orthopedic injuries. (Adler
Decl., ¶ 9).
Plaintiff objects to Dr. Adler’s characterization of
Defendants’ care and treatment as “empathetic” on grounds Dr. Adler is not
qualified as a psychiatrist. (Plt.’s
Objections). He is not rendering a
psychiatric opinion. Moreover, Dr. Adler has overseen mental health services in
correctional facilities. (C.V.
.pdf 113).
2) Defendants’
objections
Plaintiff’s Declaration:
#1, 8, 13, 18, 21. SUSTAINED. Speculation and lacks foundation
(“informed and believed”).
#6. SUSTAINED. Hearsay as to
what she was “told” or “advised.”
All other objections relating to Plaintiff’s experience
and medical records are OVERRULED.
Exhibits T and V are orthopedic consultation reports
prepared by Daniel M. Silver, M.D. and submitted to Plaintiff’s counsel. SUSTAINED.
Hearsay. Speculation. (“Her fall from the bunkbed ladder on 2/13/19 aggravated
the left knee somewhat or the left knee gave out, causing her to fall from the
bunkbed ladder which is not clear …”). (Decl.
of Joyce, Ex. T, .pdf p. 410).
Accordingly,
Defendants have met their burden of establishing no breach of duty and the lack
of causation. Plaintiff has not submitted an expert’s declaration to controvert
Dr. Adler’s opinion that Defendants complied with the standard of care or that
Defendants’ conduct did not cause Plaintiff’s injuries. This undisputed
material fact undercuts all of Plaintiff’s claims.
Plaintiff attempts
to rely on the deposition testimony and reports prepared by Dr. Silver with
whom Plaintiff consulted to assess her orthopedic injuries. (Joyce
Declaration, Exs. T and V). The reports are hearsay as
previously discussed, and Dr. Silver did not render an opinion about the applicable
standard of care. As Defendants also point out in reply, Dr. Silver expressly
testified that he was not providing any opinions on whether the care provided
in the jail setting was appropriate or not true. (Plt.’s
Ex. U, 26:7-11, .pdf 438). His expertise is limited to orthopedic medicine.
(Id. at 27:2-5, .pdf 439). Without an expert on standard of care or of
causation, UF 27 remains undisputed.
D.
Defendants
have established that Plaintiff cannot prevail on the second cause of action
for negligence against Deputy Vallejo. (Issues
5 -6).
The negligence claim is based on Deputy Vallejo’s
failure to adhere to a medical order that Plaintiff use the bottom bunk because
of her condition. (SAC ¶ 53). Plaintiff suffered injury to her head, neck, and
back in attempting to use the top bunk. (SAC, ¶ 55). Plaintiff’s medical
records reflect that she sought care the day after the bunk fall. (Defs.’
Ex. 3 .pdf p. 355 2/14/19).
Plaintiff alleges
that Deputy Vallejo knew that a lower bunk order was in place but ignored the
order and required Plaintiff to use the top bunk. (SAC 53). Plaintiff’s
additional facts state that she told Deputy Vallejo about her fractured knee
and that she was supposed to use the bottom bunk. (Plt.’s AF 180). Plaintiff submits
the February 11, 2019, bunk order. (Plt.’s
Ex. G, .pdf p. 356.).
Even if Deputy
Vallejo breached a duty of care, Dr. Adler’s uncontroverted declaration states
that the none of the jail’s conduct or inaction “resulted in any further injury
to Plaintiff’s patella or any other claimed injury” based on an imaging study
following Plaintiff’s release from jail. (Adler
Decl., 7:28 – 8:3; UF 44).
E.
Plaintiff
cannot prevail on the third cause of action for intentional infliction of
emotional distress and the prayer for punitive damages against Deputy Vallejo fails
as there are no facts to controvert the lack of evidence to support causation.
(Issue 7 and 8).
This claim arises from Deputy Vallejo’s alleged conduct during
the bunk incident. (SAC ¶ 63-65). Deputy Vallejo argues that there is no
evidence of any outrageous conduct, nor can her conduct be characterized as
malicious, fraudulent, or oppressive to support the claim for punitive damages.
To prevail on a
claim for intentional infliction of emotional distress, plaintiff must allege
facts showing (1) extreme and outrageous conduct with the intention of causing,
or reckless disregard of the probability of causing emotional distress, (2)
Plaintiff suffered severe or extreme emotional distress, and (3) actual and
proximate causation. (Christensen
v. Superior Court (1991) 54 Cal.3d 868, 903).
To recover exemplary damages, Plaintiff must
establish “by clear and convincing evidence that the defendant has been guilty
of oppression, fraud, or malice.” (Civ. Code, § 3294 (a)). “Malice” is defined as “conduct which is
intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious disregard
of the rights or safety of others.” (Civ. Code, §
3294 (c)(1); College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725).
"Oppression" is defined as “despicable conduct that subjects a person
to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 (c)(2)).
The material facts relevant to
causation are undisputed. Plaintiff cannot
controvert
the lack of evidence to support causation. (UF 52, 53).
F.
Adjudication
of the fourth cause of action for violation of the Bane Civil Rights Act,
Section 52.1 against County and Vallejo is GRANTED as to the County and Deputy
Vallejo.
1)
There
is no dispute that the County is immune from liability for this claim. (Issues
9 and 10).
Plaintiff alleges that by forcibly ordering and threatening
Plaintiff to use the top bunk despite the medical order, Defendants interfered
with Plaintiff’s constitutional rights by threat, intimidation, and coercion,
in violation of her constitutional rights. (SAC ¶ 70; Civ.
Code, § 52.1). Defendants argue that the County is
statutorily immune since Plaintiff was incarcerated throughout all relevant
times, barring this civil rights claim. Defendants contend the claim is also
barred for failure to timely submit a government claim asserting this cause of
action, and Plaintiff has no evidence to support it in any event.
Plaintiff does not dispute that
the County is immune under Government Code, section 844.6, however, public
employees remain liable. Gov.
Code, § 844.6 ["Nothing in this section exonerates a
public employee from liability for injury proximately caused by his negligent
or wrongful act or omission."]. Therefore, adjudication of Issues 9 and 10,
for liability against the County is GRANTED.
2)
Deputy
Vallejo has established that nothing she did or failed to do caused Plaintiff’s
injuries.
Defendant
relies on the identical facts asserted in support of the negligence cause of
action. (Facts 84-91). As with the negligence and intentional infliction of
emotional distress claims, the lack of causation is undisputed. (Issue 11, UF
91).
3)
Defendants
have not persuasively established that the Bane Act claim is barred by the
statute of limitations, but the claim fails as Plaintiff has not provided
evidence of causation.
Plaintiff
contends that she timely filed her government claim which included the Bane Act
claim. There is no dispute that Plaintiff filed a government claim with the County
on March 9, 2019, which the County denied on April 11, 2019. (UF 93 and 94). Plaintiff
timely filed a federal complaint within six months on August 8, 2019. (UF 95; Gov.
Code, § 945.6 [Action must be commenced no later than six
months after the date the public entity mailed or personally delivered the
notice denying the claim]).
Deputy Vallejo contends that the
statute of limitations is tolled only as to claims “specifically identified” in
the federal lawsuit during the pendency of the action. (Motion, 20:19-23). Plaintiff
does not dispute that she did not include the Bane Act violation in her federal
action. (UF 96). The federal court,
however, has supplemental jurisdiction “over all other claims that are so
related to claims in the action within such original jurisdiction that they
form a part of the same case or controversy …” (28
U.S.C.A. § 1367 (a) (West)). The period of limitations for such
claims “and for any other claim in the same action that is voluntarily
dismissed at the same time as or after the dismissal of the claim under
subsection (a), shall be tolled while the claim is pending and for a period of
30 days after it is dismissed unless State law provides for a longer tolling
period." (Id. at subd. (d)).
Contrary to
Defendant’s argument, the tolling provision is not limited to claims
“specifically identified” in the action but includes “all other claims that are
so related” and that are part of the same case or controversy. However, the Defendants’
evidence showing lack of causation is undisputed. (UF 91).
G.
Defendants
have established that fifth cause of action against County for Negligence/ Medical
Malpractice fails for lack of evidence of causation (Issue 13).
Plaintiff
does not address the contention that the County is immune from liability. A government entity is not liable for an
injury to any prisoner; however, public employees remain liable "for
injury proximately caused by his negligent or wrongful act or omission.” Gov.
Code, § 844.6. Regardless, the lack of evidence showing a
breach of the standard of care or of causation warrants adjudication of this
issue in Defendants’ favor. (Issues 14-15).
H.
Adjudication
of the fifth cause of action for negligence/medical malpractice against Charles
M. Cardenas, M.D., and Mbi Ningo MBI, P.A. (Issue 16).
1) Causation
The SAC alleges that Defendants were
negligent in providing care and treatment to Plaintiff for injury sustained to her
left knee while incarcerated. (SAC, ¶ 80-82). To support a claim for medical negligence, Plaintiff must establish
“(1) the duty of the professional to use such skill, prudence, and diligence as
other members of his profession commonly possess and exercise; (2) a breach of
that duty; (3) a proximate causal connection between the negligent conduct and
the resulting injury; and (4) actual loss or damage resulting from the
professional's negligence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606).
The standard of care against which a physician’s acts are measured “is
a matter peculiarly within the knowledge of experts; it presents the basic
issue in a malpractice action and can only be proved by their testimony
[citations], unless the conduct required by the particular circumstances is
within the common knowledge of the layman.” (Landeros v. Flood (1976) 17 Cal.3d 399, 410). Whether the
alleged negligence caused Plaintiff’s injury “must be proven within a
reasonable medical probability based upon competent expert testimony. Mere
possibility alone is insufficient to establish a prima facie case.” (Jones v. Ortho Pharmaceutical
Corp. (1985) 163 Cal.App.3d 396, 402).
A “possible cause” only becomes “probable” when, “in the absence of other
reasonable causal explanations, it becomes more likely than not that the injury
was a result of its action. This is the outer limit of inference upon which an
issue may be submitted to the jury. " (Jones at 403).
The claim fails fundamentally because Plaintiff
has not submitted an expert’s declaration to controvert Dr. Adler’s opinion
that Defendants complied with the standard of care and that no acts or omissions
by Defendants caused Plaintiff’s injuries.
III. CONCLUSION
As all of Plaintiff’s claims
fail for the foregoing reasons, summary judgment is GRANTED in Defendants’
favor on all causes of action. (Munro
v. Regents of University of California (1989) 215 Cal.App.3d
977, 985 ["When a defendant moves for summary judgment and
supports his motion with expert declarations that his conduct fell within the
community standard of care, he is entitled to summary judgment unless the
plaintiff comes forward with conflicting expert evidence.”]).