Francisco Remijio, et al. v. The County of Santa Barbara, et al

Case Number

22CV01496

Case Type

Hearing Date / Time

Wed, 11/08/2023 - 10:00

Nature of Proceedings

Defendants’ Motion for Summary Judgment, or in the Alternative Summary Adjudication.

Tentative Ruling

For Plaintiffs Francisco Remijio, Leah Remijio, Abagail Remijio, and Charlotte Remijio: Eric Bonholtzer and Michael O. Azat

For Defendant The County of Santa Barbara, also sued as The Santa Barbara County Sheriff’s Department, and Bill Brown: Lori A. Reihl

RULING

For the reasons set forth herein Defendant County of Santa Barbara’s motion for summary judgment is granted.

Background

Plaintiffs Francisco Remijio, Leah Remijio, Abagail Remijio, and Charlotte Remijio, through their guardians ad litem, filed their original complaint on April 19, 2022, against Defendants The County of Santa Barbara, also sued as The Santa Barbara County Sheriff’s Department, and Bill Brown, in his official capacity as Sheriff of Santa Barbara County, alleging causes of action for general negligence, negligence survival action, and failure to summon medical care. (Note: as all Plaintiffs share the same surname, they will be referred to by their first names to avoid confusion. No disrespect is intended.)

As alleged in the complaint:

“This claim is made on behalf of the decedents and estate of Michael Anthony Remijio (“Remijio”) as a result of his death while in the custody of the Santa Barbara Sheriff’s Department at the Santa Barbara County Jail. Remijio hung himself in his single cell on February 19, 2021 as a result of the negligence of the Defendants in failing to properly assess and treat his suicidal state, among other acts and omissions.” (Complaint, ¶ 1.) “Remijio called 911 over the course of two days to request help because he thought he was going to kill himself. Desperate for help, on the night of February 18, 2021, Remijio called 911 and reported that he was ‘coming down’ from methamphetamine and needed urgent mental health assistance or feared that he would harm himself.” (Id. at ¶ 2.)

“Rather than take Remijio to the hospital to be evaluated by mental health professionals, Remijio was instead taken to the Santa Barbara County Jail and booked into a one-person cell. While in jail, Remijio again repeated his pleas for help and that he was suffering from mental health issues related to his having taken methamphetamine, Remijio told jail staff repeatedly that he feared he would hurt himself. Remijio did not receive the help he needed, and the next afternoon, on February 19, 2021, he was found non-responsive in his cell with a sheet wrapped around his neck. Remijio was taken to the hospital where he was pronounced dead.” (Id. at ¶ 3.)

The four Plaintiffs are minors and the children of Remijio. (Id. at ¶¶ 4, 5, 6, 7.)

On September 2, 2022, Defendants filed an answer to the complaint with a general denial and 32 affirmative defenses.

Defendants now move for summary judgment arguing: (1) Immunity from liability pursuant to various provisions of the Government Code; (2) There is no triable issue as to any of the statutory basis pled for each of Plaintiff’s causes of action; and (3) the acts of Defendants met the applicable standard of care and were not the legal cause of the injuries alleged. In the alternative, Defendants move for summary adjudication as to Defendant Bill Brown on the grounds of no negligence and immunity under the Government Code.

Plaintiffs oppose the motion.

Analysis

As an initial matter: “All electronic documents must be in text searchable format and must comply with the formatting and content requirements of the California Rules of Court for electronic documents, including particularly CRC 3.1110(f)(4) requiring electronic bookmarks.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(1).)

“Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (Cal. Rules of Court, rule 3.110 (f)(4).)

“Compliance with all of the formatting requirements for electronic documents is extremely important for the Court’s timely consideration of e-filed documents. In cases of noncompliance, the Court may, in its discretion, order any, or all, of the following in addition to any other sanction permitted by law: (i) the noncomplying document to be stricken as improperly filed; (ii) the continuance of the hearing to which the noncomplying document pertains; or, (iii) the imposition of monetary sanctions for violation of the California Rules of Court or these Local Rules, following adequate notice and an opportunity to be heard.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(2).)

Neither Plaintiffs nor Defendants have properly bookmarked their hundreds of pages of exhibits. Counsel are reminded of their obligation to comply with the Local Rules and the California Rules of Court for any future filings with the Court.

           

            Objections to Evidence:

Plaintiffs have objected to evidence presented by County. “In granting or denying a motion for summary judgment or summary adjudication, the Court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

“ ‘The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ ” [Citation.] “ ‘The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that Courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.’ ” [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, 1400.)

Plaintiffs object to the attachments to the declaration of Lori Reihl primarily on the grounds of lack of foundation and personal knowledge, hearsay, and speculation. The Court need not rule on these objections because the evidence contained therein is not material to the disposition of the motion. All evidence that is material to the disposition of the motion is contained in undisputed facts and the two declarations of Plaintiffs’ own experts. To the extent that Plaintiffs present the same evidence that they are objecting to, they have effectively waived their objections to that evidence being considered.

County’s objections to the declaration of Dr. Susan Ashley are overruled. County’s objections to the declaration of Roger Clark are overruled.

Separate Statement of Undisputed Material Facts

In support of the motion, Defendants properly assert 53 facts in support of issue one: Immunity Defenses, and 53 identical facts in support of issue two: Summary Adjudication for Sherriff Bill Brown.

Plaintiffs filed their separate statement in opposition, responding to each of Defendants’ material facts.

“The Separate Statement in Opposition to Motion must be in the two-column format specified in (h).

“(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party’s references to exhibits.

“(2) On the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.

“(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f).)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the Court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)

Plaintiffs’ separate statement is not proper. The majority of Plaintiffs’ separate statement does not specifically address each of the undisputed material facts (“UMF”), whether Defendants’ UMFs are actually disputed, or in many cases cite any evidence for their positions. As an example: UMF No. 4 states: “However, a welfare check was still completed and Sarah explained to the deputies that he was paranoid and the call was an accident; they left without incident.” Plaintiffs’ response is: “Disputed. Santa Barbara County Sheriff’s Deputies came to Remijio’s apartment to conduct a welfare check but did not arrest Remijio or summon mental health assistance.” The facts as stated by Defendants are not reasonably disputed. The admissible evidence shows that Defendants’ statement is factual. Plaintiffs fail to address the actual language of the UMF and instead unreasonably dispute the UMF and then argue issues that are not included in the UMF as written. It is a consistent theme throughout Plaintiffs’ separate statement. Many of the UMF’s that Plaintiffs designate as “disputed” are included as facts in their own experts’ declarations. The UMF’s that Plaintiffs fail to properly address, as they are written, include: Nos. 4, 6, 7, 8, 9, 10, 12, 16, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 32, 33, 34, 35, 36, 37, 41, 43, 44, 45, 46, and 47.

“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.) Plaintiffs’ failure to properly respond the Defendants’ UMFs caused this Court to expend a great deal of time in reviewing several hundred pages of exhibits and evidence to determine whether the UMF was reasonably disputed. This would have been unnecessary had Plaintiffs properly responded to the UMFs and simply put “undisputed” where appropriate. After reviewing the evidence, many of the UMFs are not reasonably disputed and are, in fact, included as information relied upon in Plaintiffs’ experts’ declarations.

The following facts are either undisputed or not reasonably disputed:

“On February 17, 2021, Michael Remijio began calling 911.” (UMF, 1.) “Michael Remijio’s fiancé, Sarah Cespedes, was home with him at the time and describes that he was under the influence of drugs and appeared uncomfortable, paranoid, and jittery.” (UMF, 2.) “As Sarah saw that Michael was calling 911, she grabbed the phone and advised the operator that it was a false alarm and there was no need to have anybody come to their home and she was there to take care of him.” (UMF, 3.) However, a welfare check was still completed, and Sarah explained to the deputies that he was paranoid, and the call was an accident; they left without incident.” (UMF, 4.)

“Sarah left their home in Santa Barbara that evening to stay with her parents in Simi Valley 1 1/2 hours away while Michael remained at home alone.” (UMF, 5.) “After she left, Michael Remijio contacted 911 indicating that he believed people were chasing him and was doing methamphetamine and detoxing from his drug use.” (UMF, 6.) Santa Barbara County Sheriff’s deputies responded at approximately 8:30 p.m.” (UMF, 7.) “While deputies were on the scene, Mr. Remijio appeared to potentially be under the influence and acknowledged he had recently relapsed with methamphetamine use.” (UMF, 8.) “Based on observations of Mr. Remijio appearing paranoid, anxious and jittery, deputies requested an onsite medical evaluation of Mr. Remijio by paramedics after he declined going to a hospital.” (UMF, 9.) “At or about 8:45pm, the Santa Barbara County Fire Department paramedics responded to Mr. Remijio’s residence and completed a medical evaluation.” (UMF, 10.) “The records of that evaluation from the EMT- paramedics provides: ‘Arrived to find Pt seated in a chair at home AOX4 GCS 15 in mild distress, law enforcement by side. Pt stated he was having anxiety secondary to smoking methamphetamines that day. Pt appeared calm and was answering questions/following commands appropriately. Pt denied any loc, sob, cp, fever/flu like symptoms, or recent trauma.

Pt appeared to have good decision-making capacity and requested to remain on scene in the custody of law enforcement. Pt remained on scene as requested.’ " (UMF, 11.) “Following their evaluation, paramedics medically cleared him to remain on scene in the custody of law enforcement.” (UMF, 12.)

“While at Mr. Remijio’s home, deputies also identified that Michael Remijio had an outstanding warrant out of Ventura County for failure to appear and once he was medically cleared by paramedics, Mr. Remijio was taken into to jail on the warrant.” (UMF, 13.) “Dash cam footage then captured the transport from Mr. Remijio’s home to the jail, including Mr. Remijio’s discussions with the transporting deputy.” (UMF, 14.)

“Upon arriving and prior to entering the jail, Mr. Remijio went through a medical receiving screening with Rachel Jennings, RN an employee of CFMG/Wellpath.” (UMF, 16.) “California Forensic Medical Group (CFMG)/Wellpath (hereinafter “Wellpath”) has been a contracted medical provider for the Santa Barbara County Jail since 2017.” (UMF, 17.) Under the contract with the County of Santa Barbara, CFMG provides the medical and mental health services to the jail facilities. (UMF, 18.) “It is the responsibility of the receiving CFMG Registered Nurse (RN) to conduct the Intake Medical Screening form on every new inmate.” (UMF, 19.) “The Registered Nurse asks the inmate a series of questions that, based on the responses, are intended to identify an inmate that may be suicidal. If the RN notes anything observed that could indicate

suicidal tendencies, they notify the receiving deputy if appropriate, and notify the jail’s mental health professionals.” (UMF, 20.)

“Records show that at 10:27pm, Wellpath nurse, Rachel Jennings, RN’s medical screening cleared Mr. Remijio to be booked and noted that Mr. Remijio presented as alert and appropriate with clear speech.” (UMF, 21.) “During the screening, Michael Remijio also denied the following: Current or past mental health diagnosis? No. Currently taking, supposed to take or ever been prescribed any medication by a physician for any emotional or mental health problems? No. Current or past outpatient treatment for mental health or psychiatric issues? No.

Ever been in a hospital for emotional, mental health and/or psychiatric problems? No. Hear or see things others don’t or believe someone can control your mind? No. Have feelings that there is nothing to look forward to or feel hopelessness/helpless? No. Have you wished you were dead

or wished you could go to sleep and not wake up? No. Have you had any actual thoughts of killing yourself? No.” (UMF, 22.) “During that medical intake screening with the Wellpath medical staff, Michael Remijio also denied withdrawing from drugs.” (UMF, 23.) “Wellpath nurse Jennings’ observations noted that she found him to be alert, appropriate, and unremarkable mood and had clear speech.” (UMF, 24.) Nurse Jennings also took vital signs which were normal with a blood pressure of 128/68, pulse of 92, respiratory rate of 16, temperature of 98.8 and oxygen levels at 97%.” (UMF, 25.) “After Plaintiff was cleared by medical staff, he was booked into the jail at or around 21:48.” (UMF, 26.)

“While in the jail, Michael Remijio made telephone calls to his girlfriend Sarah Cespedes. During those phone calls, he did not indicate any suicidal thoughts or indicate an intent to harm himself.” (UMF, 27.) “Sarah Cespedes also recalls there was discussion on a telephone call with [Remijio] discussing the amounts of bail and trying to figure out what percentage they would need to pay up front, but she cannot recall if that was a separate call.” (UMF, 28.)

Maria Barrientos, the mother of Michael Remijio, also recalls Michael calling her around 2:30am while he was at the jail that night, asking for bail and indicating he could not stay in there which she interpreted as he was scared from being in there with other corrupted people.” (UMF, 29.) “Neither Michael Remijio’s fiancé, Sarah Cespedes, nor his mother, Maria Barrientos, had any information while Michael Remijio was in the jail that he warned jail staff he would kill himself, that he was having suicidal thoughts while in his cell, that he made requests to be seen by mental health, or that his requests to be seen by mental health were being ignored in the jail, as alleged in this action.” (UMF, 30.)

“During the intake process Custody Deputy Mota also completed a housing screening of Michael Remijio. During Custody Deputy Mota’s screening, Mr. Remijio initially refused to answer any questions.” (UMF, 31.) After further attempts, Deputy Mota was able to complete the screening at which time Michael Remijio disclosed a prior attempt or consideration of suicide, ‘but not at this time.’” (UMF, 32.) “Custody Deputy Mota noted: ‘Inmates criminal history is current, and his IST is current. He has not been housed in this jail the past. He has an out of county warrant. He denied probation or parole. He denied street issues. He told me he is housed as a PC housing in Ventura. He denied any gang affiliations. He told me he has high blood pressure, gout, seizures. He told me he has had past suicidal ideations, but he is not currently suicidal. He told me he is withdrawing from meth and is currently having vision and hearing issues from meth. Based on information gathered he will be housed in IRC 114.” (UMF. 33.) “In his communications with Michael Remijio, Custody Deputy Mota noted that Mr. Remijio was paranoid that he was being listened to and implied that he was being heard in his head.” (UMF, 34.) “Based on these observations Deputy Mota submitted a mental health evaluation request form to Wellpath medical staff for ‘signs of psychosis,’ and advised the Wellpath medical on staff of his request form at 0400.” (UMF, 35.)

“The following morning, the mental health evaluation request form was picked up by Wellpath mental health staff, Henrica Hoffman, LMFT.” (UMF, 36.) “LMFT Hoffman saw Michael Remijio at 10:08am on February 19, 2021 at his cell at IRC 114.” (UMF, 37.) “Her visit notes indicate Mr. Remijio reported insomnia, PTSD, and bipolar. He denied suicidal ideations and denied being on mental health medications.” (UMF, 38.)

“Mr. Remijio was observed appearing agitated and pacing, stating his family was being killed. Michael Remijio reported using ‘meth and weed.’” (UMF, 39.) “Henrica Hoffman, LMFT noted that Mr. Remijio was agitated, loud, angry, irritable, impulsive, and hostile. She also noted Mr. Remijio’s thoughts were delusional, circumstantial, and his insight was poor.” (UMF, 40.) During the assessment by LMFT Hoffman, Michael Remijio became angry yelling that he has his own private doctor and refused to provide further information to which LMFT Hoffman encouraged him reconsider engaging in an assessment and would schedule him for mental health follow up with no additional orders to custodial staff to make any changes to his current housing placement in IRC 114.” (UMF, 41.)

“During one of those safety checks, at 8:20am, during a security round, Custody Deputy Leon saw Michael Remijio standing at the cell door stating he was seeing his family and they were out to get him.” (UMF, 43.) “In response, Deputy Leon called for Wellpath mental health and asked that they speak with him.” (UMF, 44.) “Custody Deputy Leon later confirmed that Wellpath staff made contact with Michael Remijio at his cell.” (UMF, 45.) “Medical staff did not issue any new orders including any recommendations regarding precautions or housing.” (UMF, 46.)

“Later, at 14:30 during a routine security check, Custody Deputy Leon found Michael Remijio suspended by his neck and a man down call was immediately issued and numerous jail and medical staff responded.” (UMF, 47.) “Paramedics were called to the jail and Michael Remijio was transported to Cottage hospital where he was unfortunately pronounced deceased at 15:32.” (UMF, 48.)

“Plaintiffs filed this action on April 19, 2022 asserting three causes of action for (1) general negligence (Cal. Govt. Code §§815.2(a) and 820(a); (2) negligence survivor cause of action

([unspecified] Government Code), and (3) failure to summon medical care (Cal. Govt. Code §845.6).” (UMF, 49.) “Plaintiffs named Defendant the County of Santa Barbara (also sued as the Santa Barbara Sheriff’s Department) as responsible for the jail. Plaintiffs also named Sheriff Bill Brown as a Defendant, on the basis that, ‘Sheriff Bill Brown is sued in his official capacity as the elected Sheriff of Santa Barbara County. Sheriff Brown was at all times relevant responsible for

the acts and omissions of the Sheriff’s Department and its employees.’ ” (UMF, 50.)

The following facts are disputed:

“During the transport to the jail, Michael Remijio came across as calm, articulate and conversational.” (UMF, 15.)

“At the jail, security checks are performed within every 60 minutes, which involve a direct visual safety check in each cell.” (UMF, 42.)

“Mr. Remijio did not exhibit signs of being a high-risk of suicide between February 18-19, 2021.” (UMF, 51.)

“The County of Santa Barbara met the standard of care with regard to Mr. Remijio’s risk of suicide while Mr. Remijio was incarcerated in the Santa Barbara County Jail from February 18-February 19, 2021.” (UMF, 52.)

“There were no actions, or a failure to engage in actions, by the County of Santa Barbara that caused, or substantially contributed, to Mr. Remijio’s death.” (UMF, 53.)

            Summary Judgment:

A Defendant’s motion for summary judgment asks the Court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the Court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The Court must determine from the evidence presented 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. (Code Civ. Proc., § 437c, subd. (c).)

The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a Defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

Once a moving Defendant meets its initial burden, the burden shifts to the Plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if Plaintiff is unable to do so, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial Court must consider all the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the Court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial Court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the 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. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.)

“We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)

            Role of Pleadings:

“‘[A] claim alleging a dangerous condition may not rely on generalized allegations [citation] but must specify in what manner the condition constituted a dangerous condition.’ [Citation.]” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347.)

“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a Defendant moving for summary judgment only requires that he or she negate Plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]” (Hutton, supra, 213 Cal.App.4th at p. 493.)

Plaintiffs assert their first cause of action for negligence under Government Code sections 815.2(a) and 820(a).

Government Code section 815.2 states in its entirety:

“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

“(b) Except as otherwise provided by statute, 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.”

Government Code section 820 states in its entirety:

“(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.

“(b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.”

(Note: Plaintiffs are not suing any Defendants in their individual capacity.)

Plaintiffs’ second negligence survivor cause of action is not brought under any statute. Plaintiffs’ third cause of action, for failure to summon medical care, is brought pursuant to Government Code section 845.6, which is set forth below.

            Governmental Liability:

“Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).)

Public entities in California are immune from liability for tortious injury, except when liability is imposed by statute. Government Code section 845.6 provides a limited basis of liability; it states, in pertinent part: “Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.8 and 856, a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if 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.”

The second clause of section 845.6 is at issue here. “ ‘In the second clause [of the statute], . . . liability is narrowly limited to the particular instances: (1) where the employee knows or has reason to know of the need (2) of immediate medical care and (3) fails to summon such care.’ ” (Watson v. State of California (1993) 21 Cal.App.4th 836, 841–842 (Watson).) Section 845.6 is to be narrowly construed, since “the duty to summon is presented as the exception to the broad, general immunity for failing to furnish or provide medical care.” (Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1072 (Castaneda).) “Liability under section 845.6 is limited to serious and obvious medical conditions requiring immediate care.” (Watson, supra, at p. 841.)

The issues of public employees’ actual or constructive knowledge of the need for immediate care, and whether they took reasonable action to summon medical care, are generally questions of fact properly determined at trial. (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 317; Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1186 (Zeilman ).)

But the matters of knowledge and reasonable action to summon immediate medical care do not always hinge on disputed issues of fact. In Kinney v. County of Contra Costa (1970) 8 Cal.App.3d 761, the appellate Court barred liability for an inmate who complained of a “very bad headache” and who was “ready to collapse” prior to her release. (Id. at p. 769.) The Court held that requesting attention about a headache “cannot reasonably be deemed notice ‘that the prisoner is in need of immediate medical care.’” (Id. at p. 770.) In Lucas v. City of Long Beach (1976) 60 Cal.App.3d 341, the appellate Court held that section 845.6 barred liability for the failure of jail employees to summon immediate medical care for a juvenile inmate who appeared to be intoxicated. (Id. at p. 350.) The Court concluded that although the inmate “evidenced emotional upset by crying and expressing concern as to the effect that his arrest would have on his mother, there is not a scintilla of evidence in the record indicating that his conduct was any different than one might expect of a person intoxicated on either drugs or alcohol.” (Id. at pp. 349–350.) In Watson, supra, 21 Cal.App.4th 836, a prisoner received prompt medical care for an ankle injury, but doctors failed to discover a ruptured Achilles tendon. In affirming a trial Court order granting summary judgment, the appellate Court found that prison employees properly summoned medical care and had no duty to monitor the quality of care provided. (Id. at pp. 842–843.) The Court found “no merit to the argument that the misdiagnosis triggered section 845.6 liability based on the alleged failure to summon reasonable medical care.” (Id. at p. 843.) Similarly in Castaneda, supra, 212 Cal.App.4th 1051, a prisoner was treated for a growth on his penis, but a cancer on the penis was not diagnosed, and he was not promptly referred to a physician who could have made the diagnosis. The appellate Court found that the State was immune from liability under section 845.6 as a matter of law, because potential medical malpractice did not constitute a failure to summon. (Castaneda, supra, at pp. 1072–1073.)

 

The bulk of Plaintiffs’ arguments, in opposition to summary judgment, regarding the inapplicability of Government Code section 845.6, is that “Defendants knew or had reason to know that Remijio was in need of immediate medical care and failed to take reasonable action to summon such care. Gov’t Code § 845.6. Second, Defendants withheld crucial information from medical personnel, thereby negating the very purpose of section 845.6.” (Opposition, p. 11, ll. 21-24.)

Here, the evidence submitted shows that Defendants did summon care for Remijio. Although Remijio denied current suicidal thoughts, because Remijio was paranoid that he was being listened to and implied that he was being heard in his head, Deputy Mota submitted a mental health evaluation request form to Wellpath medical staff for “signs of psychosis.” (UMF, 33, 34, 35.) The mental health evaluation request was filled out on February 19, 2021, at 3:26 a.m. The mental health evaluation request was picked up by mental health staff, Henrica Hoffman, LMFT the same morning and Hoffman evaluated Remijio that morning. Hoffman’s visit notes indicate that Remijio denied suicidal ideations and denied being on mental health medications. (UMF, 36, 37, 38.)

Defendants have met their burden of showing that they are entitled to judgment, in their favor, as a matter of law. The burden now shifts to Plaintiffs to show the existence of triable issues of material fact.

As relevant to the issue of summoning care for Remijio, Plaintiffs’ own expert, Dr. Susan Ashley, acknowledges the following from her review of documents presented to her:

“On 2-19-21 around 7:30 a.m., Henrica Hoffman, LMFT, a mental health professional

employed by Wellpath, picked up the Mental Health Referral Evaluation Request form completed by Deputy Mota.” (Ashley Dec., ¶ 20.) “On 2-19-21 around 8:20 a.m., IRC Module IRC Facility 24 Hour Post Recap documents at 0820 hours Officer was doing a security check and ‘saw Remijio standing at cell door. Remijio, Michael Cell 114 stated he was seeing his family and they were out to get him. I called for Mental Health Audrey over the radio to speak with her over the phone about inmate Remijio. I asked if she can come speak to Remijio based on what he stated to me. Mental Health stated she would come over and speak to him. Mental health made contact with Remijio at his cell from 0845 to 0915 hours. I was not advised of anything else from Mental Health.’” (Ashley Dec., ¶ 21.) “On 2-19-21 at 1008 hours. Henrica Hoffman, LFMT met with Mr. Remijio at his cell. MHP Hoffman noted Mr. Remijio was agitated, loud, angry, irritable, impulsive and hostile. MPH Hoffman noted Mr. Remijio’s thoughts were delusional, circumstantial, and his insight was poor. Mr. Remijio denied wanting to kill himself or kill anyone else. MPH Hoffman also completed a SOAP note, stating Mr. Remijio reported insomnia, PTSD, and bipolar. He was pacing in his cell and stating, ‘My family is being killed, I need to get out now.’ Mr. Remijio appeared to be under the influence of drugs/alcohol and reported using ‘meth and weed.’ Mr. Remijio denied taking mental health medication and denied suicidal thoughts.” (Ashley Dec., ¶ 22.) Remijio was found hanging, unresponsive, from the top bunk of his bed with a bedsheet at approximately 2:30 p.m. on February 19, 2021. (Ashley Dec., ¶ 25.)

While Ashley offers several opinions centering around Remijio being a danger to himself and what could have been done to further protect him from harming himself, she offers nothing to dispute that mental health was summoned to evaluate Remijio. She acknowledges that help was summoned by Deputy Mota. Ashley’s opinions do not create any triable issues of material fact because none of the opinions point to any exception to Government Code section 815 immunity. The same is true for the declaration of Plaintiffs’ other expert Roger Clark. He acknowledges that help was summoned and does not provide evidence of any exception to Government Code section 815.

Because there is no legitimate dispute that Defendants summoned care for Remijio, on the same day that Remijio committed suicide, Defendants cannot be held liable under Government Code section 845.6. Likewise, Plaintiffs’ arguments that Defendants did not convey enough information to the mental health providers that were summoned, does not somehow make the immunity void. “Prison authorities do not have the medical training to know whether a prisoner’s medical condition has been properly diagnosed and treated.” (Watson v. State of California, supra, 21 Cal.App.4th at p. 843.) Plaintiffs offer no evidence that after Remijio was evaluated by Hoffman that there was any need to treat Remijio any differently than other inmates. To the extent that Plaintiffs take issue with Hoffman’s evaluation, they did not bring a medical malpractice claim against her or Wellpath and none of her acts or omissions can be imputed to the County.

To the extent that Plaintiffs argue that Defendants are liable for Remijio’s death based on putting him in a “cell by himself and with deadly instrumentalities, including articles of bedding and clothing, that Remijio could use to harm himself (Complaint, ¶ 21): “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.) The decision to house Remijio in an individual cell was an exercise of discretion and not actionable.

Government Code section 844.6 also provides immunity in situations such as the one at issue here, stating:

“(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for:

            “(1) An injury proximately caused by any prisoner.

            “(2) An injury to any prisoner.

“(b) Nothing in this section affects the liability of a public entity under Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code.

“(c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Chapter 2 (commencing with Section 830) of this part.

“(d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission. The public entity may but is not required to pay any judgment, compromise or settlement, or may but is not required to indemnify any public employee, in any case where the public entity is immune from liability under this section; except that the public entity shall pay, as provided in Article 4 (commencing with Section 825) of Chapter 1 of this part, any judgment based on a claim against a public employee who is lawfully engaged in the practice of one of the healing arts under any law of this state for malpractice arising from an act or omission in the scope of his employment, and shall pay any compromise or settlement of a claim or action, based on such malpractice, to which the public entity has agreed.”

Even if jail staff were grossly negligent, the public entity is immune under this section. “Although we agree that it is regrettable to grant immunity to a public entity after it has been proved to be grossly negligent, we must conclude that this is the law. Section 844.6, subdivision (a) explicitly provides that with the exception of certain enumerated sections the immunity granted to public entities is absolute with respect to injury proximately caused by a prisoner. Had the Legislature intended a different result it would have so stated.” (Savitt v. Jordan (1983) 142 Cal.App.3d 820, 822.) Remijio was a prisoner that caused injury to himself.

As the public entity is immune from liability for Remijio’s suicide, so is Sheriff Brown. “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” (Gov. Code, § 820.8.) There are no allegations pertaining to Sheriff Brown being involved in Remijio’s suicide.

Lastly, Plaintiffs’ argument that jail staff failed to check on Remijio is pure speculation and not sufficient to overcome summary judgment. The evidence presented by way of deposition testimony establishes that jail staff performed checks approximately every hour and documented it through the “pipe system records”. The single statement that Plaintiffs point to in attempting to create a triable issue is deposition testimony that, when read completely and compared with other testimony, states that Sgt. Alexander could not identify who conducted the checks. He does not say that they did not occur.

Defendants’ motion for summary judgment will be granted.