Filed 8/21/20
                      CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        FIRST APPELLATE DISTRICT

                                DIVISION TWO

 YOLANDA FRAUSTO et al.,
         Plaintiffs and Respondents,             A156552
 v.
                                                 (Alameda County Super. Ct.
 DEPARTMENT OF THE
                                                 Nos. RG16809897 &
 CALIFORNIA HIGHWAY PATROL
                                                 RG17857166)
 et al.,
         Defendants and Appellants.


       John Anthony Cornejo died of a methamphetamine overdose at
Highland Hospital on March 30, 2015, after having been arrested by
California Highway Patrol officers during a traffic stop and observed to put in
his mouth and swallow something that he insisted was gum, not drugs.
Cornejo declined repeated offers of medical attention and no symptoms of
drug intoxication were observed until after he had been transferred to the
custody of deputy sheriffs at the county jail.
       This appeal is from a jury verdict in favor of Cornejo’s parents in a suit
for wrongful death predicated on the negligence of the officers who took
Cornejo to jail rather than to the hospital, and from the trial court’s order
denying a motion for judgment notwithstanding the verdict. Defendants
maintain the officers had no duty to obtain a medical examination for Cornejo
in the circumstances presented; that they fulfilled the scope of any duty they
may have had by taking him to a jail with medical staff on site; and that their



                                        1
failure to take him to the hospital was not a proximate cause of his death.
They further contend the trial court erred in ruling the jury could not
consider Cornejo’s intentional act of swallowing the methamphetamine in
allocating comparative fault and in denying defendants’ motion in limine to
exclude evidence and argument that the officers attempted to coerce an
admission to possession of a controlled substance by conditioning medical
treatment on Cornejo’s admitting he swallowed a controlled substance. We
affirm.
                      PROCEDURAL BACKGROUND
      Plaintiffs Yolanda Frausto and Norman Cornejo, parents of John
Anthony Cornejo, sued defendants, the California Highway Patrol (CHP) and
individual CHP officers in state court for negligence, wrongful death, survival
action and violation of the Tom Bane Civil Rights Act (Bane Act) (Civ. Code,
§ 52.1 [interference with legal rights by threat, intimidation or coercion]).
The case was removed to federal court after the complaint was amended to
include a cause of action for violation of civil rights under title 42, United
States Code section 1983. The federal court apparently granted the CHP
defendants’ motion for summary judgment on the federal claim and declined
to exercise jurisdiction over the state claims.1
      Plaintiffs returned to state court with a complaint against the CHP and
four of its officers, Michael Diehl, Zachary Trezeniewski, Cosimo Bruno and
David Hazelwood, Jr. The case ultimately went to trial on the negligence
claim in the fourth amended complaint, after the trial court sustained
without leave to amend a demurrer to the Bane Act cause of action and

      1 Defendants’ brief represents that the federal court found plaintiffs
failed to raise a genuine issue of material fact as to whether the officers
violated their constitutional rights and whether the officers were entitled to
qualified immunity.


                                        2
granted defendants’ motion for judgment on the pleadings as to the survival
action. Plaintiffs dismissed their claims against Trezeniewski during trial.
The jury returned a special verdict against defendants in the amount of
$827,544.00, allocating comparative fault 35 percent to Diehl, 13 percent to
Bruno, 30 percent to Hazelwood, and 22 percent to Cornejo. After judgment
was entered, defendants unsuccessfully moved for judgment notwithstanding
the verdict. This appeal followed.
                          FACTUAL BACKGROUND
      About 4:00 a.m. on March 29, 2015, CHP Officers Diehl and
Trezeniewski stopped a car for driving with fog lights but no headlights
illuminated, in violation of Vehicle Code section 24250. Diehl approached the
passenger side while Trezeniewski approached the driver, who identified
himself as “Norman” Cornejo. There were three passengers in the car.
Checking the name and birthdate given by the driver, the officers learned he
was unlicensed. Trezeniewski called for backup due to the number of people
in the car. Hazelwood and Bruno were among the officers who responded to
the scene. It was Bruno’s third day on the job and Hazelwood was his field
training officer, his first time acting in this role.
      Diehl approached the driver’s side and asked Cornejo to get out of the
car. As Cornejo opened the car door, Diehl saw he was not wearing a left
shoe and detected the odor of alcohol coming from the car. Diehl conducted a
patdown search at the back of Cornejo’s car, after which Cornejo moved his
right hand in front of his mouth. Diehl asked Cornejo if the reason his shoe
was off was that he had “put dope in his shoe.” Cornejo said no and kicked
his shoe toward Diehl. As he walked with Cornejo to the front passenger side
of the vehicle to begin field sobriety tests, Diehl asked if Cornejo had
anything in his mouth and when Cornejo started to answer, Diehl observed a



                                          3
“chewing motion.” Cornejo said it was gum. Diehl asked Cornejo to spit out
whatever was in his mouth; he denied telling Cornejo to “spit the bag out.”
Cornejo became very nervous, backing away from Diehl while raising his
arms in front of his face and “swatting” at Diehl, then turning and starting to
run. According to Diehl, Cornejo had had his back to Officers Hazelwood and
Bruno, who were about 20 feet away. Diehl and other officers grabbed
Cornejo and brought him to the ground as Cornejo pulled his arms and hands
away and yelled that he only had gum. The officers took Cornejo into
custody.
         Cornejo said he had decided to swallow his gum. Diehl searched the
area in case Cornejo had discarded something but did not find anything. He
asked if Cornejo had swallowed any drugs, and Cornejo said it was only gum.
Diehl explained to Cornejo that if he “made a mistake and swallowed drugs,”
Diehl “would need to call for medical staff to ensure his health would not be
affected.” A search of Cornejo’s vehicle revealed a methamphetamine pipe
and Brillo pad, which Diehl testified is commonly used by crack cocaine
users.
         Diehl acknowledged that during training, he was told he was required
to obtain medical treatment for an arrestee if he thought it was necessary;
that if he thought Cornejo had swallowed drugs, he would have an obligation
to call for medical staff; that it was common for people he arrested to lie to
him; and that he told the other officers on the scene he believed Cornejo had
swallowed a controlled substance. Diehl’s report stated, “ ‘Based upon my
training and experience the substance in which Cornejo had swallowed was
suspected to be a controlled substance.’ ”
         Diehl testified that the California Highway Patrol Officer Safety
Manual (CHP Manual) requires taking a person to the hospital, or calling an



                                         4
ambulance, when the person is in need of medical attention, even if the
person is not exhibiting physical symptoms. He testified that not all drugs
“require a medical call” and he would determine which required medical
attention based on “signs and symptoms of potential overdose.” During the
approximately one hour he was at the scene, Diehl never saw Cornejo exhibit
signs of being under the influence of a stimulant. Cornejo did not appear to
be in need of medical attention: He had no outward signs of illness or
medical distress and he said there was nothing wrong with him.
      Asked, “the only way you were going to take [Cornejo] to the hospital
was if he admitted that he had an illegal drug in his possession, right,” Diehl
replied, “[d]epending on what it was that he said he swallowed, yes.” Diehl
denied his intention in asking Cornejo what he swallowed was to get Cornejo
to incriminate himself, and testified that he did not intend to use Cornejo’s
statement to support a criminal charge. Diehl testified that once a person
had ingested drugs, the ingested substance would not support a criminal
charge; the concern at that point would be to make sure the person was not
harmed. If Cornejo had admitted ingesting methamphetamine, Diehl would
not have recommended that the district attorney charge Cornejo; his main
focus would have been to get Cornejo to the hospital.
      Trezeniewski, who was primarily focused on the three remaining
occupants in the car, did not see Cornejo put anything in his mouth or see
him with a plastic baggie. While Diehl and Cornejo were on the ground,
Trezeniewski heard Diehl shout “[s]pit it out” or “[g]et it out of your mouth”
but did not hear him say “[s]pit out the bag.” Trezeniewski agreed that if he
saw an arrestee put in his or her mouth a plastic baggie he presumed
contained a controlled substance, the person would need medical attention.
He would not take someone to the hospital for “any” controlled substance,



                                       5
however, and he would rely on the person to be honest about what he or she
had taken.
      Hazelwood testified that he heard Diehl ask, “[w]hat did you put in
your mouth” and Cornejo say, “[i]t’s gum,” and saw Diehl reach toward
Cornejo and Cornejo “swipe” his hand toward Diehl’s hand and back away.
After Cornejo had been handcuffed, he talked about his shoulder being
injured from a prior injury. Hazelwood asked Cornejo what he had put in his
mouth and Cornejo said it was gum. Hazelwood told him, “If it’s anything
other than that, you need to tell us because you could die from it. It’s
dangerous.” Cornejo repeated, “It’s gum.” Hazelwood did not hear anyone
yell, “[s]pit out the bag,” during Cornejo’s arrest. He did not remember
whether he heard Diehl say he believed Cornejo had swallowed a controlled
substance. At the time Hazelwood put Cornejo in his patrol car, he believed
Cornejo had swallowed gum. He acknowledged that he had had arrestees lie
to him “occasionally.”
      Bruno testified that Cornejo “swatted his hand across his face and his
mouth” and was chewing; Diehl told him to spit out what he had, and Cornejo
said it was gum, then tried to flee. After being handcuffed, Cornejo said his
arm hurt from a previous injury and declined an offer of medical attention.
Bruno asked Cornejo if he had swallowed something and Cornejo said it was
gum, which Bruno believed because Cornejo seemed sincere and “at that
stage of my career, I didn’t think that anyone was really going to lie about
something.” After the attempt to flee, Cornejo was “calm and respectful.”
Bruno did not see a plastic baggie in Cornejo’s mouth or in his hand,
Hazelwood did not tell Bruno he saw a plastic baggie in Cornejo’s mouth, and
Diehl did not tell Bruno he believed Cornejo had swallowed a controlled




                                       6
substance. Bruno searched Cornejo and found nothing on him, and Bruno did
not see any gum wrappers or packets in the vicinity of the arrest.
      Sergeant John Koven received a call to respond to the arrest scene due
to a possible use of force and possibility the arrestee had put an unknown
substance into his mouth. He arrived at the scene after Cornejo had been
handcuffed and was lying on the sidewalk, complaining about being in pain.
Cornejo said his collarbone was hurting from a previous injury and declined
Koven’s offer of medical attention. Diehl told Koven he saw Cornejo put his
hand in front of his mouth, then noticed him chewing and several times
asked what Cornejo had put in his mouth and whether it was drugs, and that
Cornejo said it was gum. Koven told Cornejo, “if it’s gum, we don’t have a
problem, but if it’s any type of illegal drugs or contraband, we need to get
some medical attention because there could be some problems, depending on
the amount, if you did swallow that.” Cornejo was cooperative and polite,
answered all Koven’s questions and stated definitively and without
equivocation that what he swallowed was gum, not drugs. Koven told
Hazelwood to let the jail staff know Cornejo had put something in his mouth,
the CHP officers could not confirm what it was but Cornejo said it was gum.
      Koven testified that Diehl did not tell him he believed Cornejo had
swallowed a controlled substance and neither Bruno nor Hazelwood reported
having seen Cornejo place what appeared to be a plastic baggie in his mouth.
If they had, CHP policy would have required a medical examination. Asked if
he would agree that “an arrestee should not be required to incriminate
himself in order to obtain medical treatment,” Koven replied, “everyone is
free from self-incrimination.”
      Hazelwood and Bruno left the scene to take Cornejo to the Santa Rita
Jail in Dublin, about half an hour away. Cornejo asked if he could be taken



                                       7
instead to the Glenn E. Dyer Detention Facility, two or three minutes away,
because it would be too hard for him to get home from Dublin in the morning,
and Hazelwood agreed. At the gate where the Alameda County sheriffs
receive arrestees, there was a conversation about Cornejo’s medical
conditions, but Hazelwood did not remember whether the jail nurse was
there or just a deputy sheriff. Cornejo was asked a series of questions such
as whether he had consumed drugs or alcohol, had diabetes or epilepsy.
Hazelwood informed the deputy Cornejo had swallowed something, saying
“[w]e didn’t know what it was, but he had told us it was gum.” He heard
Cornejo tell the deputy, “I swallowed gum.” Neither Hazelwood nor Bruno
told the deputy Cornejo might have swallowed a plastic baggie they believed
contained a controlled substance.
      Hazelwood and Bruno arrived back at the office around 6:00 a.m.
Bruno drafted the documents related to the arrest and Hazelwood, as field
training officer, reviewed them. Normally one of the officers who made the
enforcement stop would be the “arresting officer” responsible for the
paperwork but Diehl had suggested Bruno be the arresting officer as a
“training opportunity,” and Hazelwood agreed.
      One of the documents Bruno drafted was the declaration of probable
cause, the document supporting probable cause for an arrest, which is signed
under penalty of perjury. The probable cause declaration included the
following: “Officer Hazelwood and I observed Cornejo swat his right hand at
his mouth and appeared to place what looked like a plastic baggie in his
mouth. . . . Officer Diehl instructed Cornejo to spit out the bag, however, he
refused, claiming it was only gum. Officer Diehl once more commanded
Cornejo to spit the ‘gum’ onto the ground and again he refused.” The arrest
report Bruno drafted did not mention a bag or baggie: Bruno wrote that he



                                       8
observed Cornejo “swat his right hand at his mouth” and then “chew on the
object very rapidly,” and that Diehl instructed Cornejo to “ ‘spit out the item
in his mouth’ ” but Cornejo “refused, claiming that ‘it was only gum.’ ”
      Bruno testified that the statements in the probable cause declaration
about a plastic baggie were mistakes, and that there were several other
mistakes in the declaration as well.2 He could not explain why he used the
term “plastic baggie” in the probable cause declaration. He testified that he
did not see a plastic baggie at the scene and he did not hear Diehl tell Cornejo
to “[s]pit out the bag,” just to “spit it out.” The reference to a plastic baggie in
the probable cause declaration was first called to his attention at his
deposition in the present case; he was surprised, and said it was a mistake.
Bruno agreed that if Cornejo had put a plastic baggie in his mouth, he should
have received medical treatment.
      Bruno testified that the probable cause declaration was submitted after
he drafted and signed it, he did not see it again and he could not have made
changes to it unless it was sent back to him. The arrest report remained on
the computer system and could be revised. Bruno learned Cornejo had died
when he came to work on April 3, after which he added this information to
the arrest report. He denied having conversations with anyone at CHP about
deleting references to a plastic baggie from the arrest report.
      Questioned at trial about the probable cause declaration, Diehl testified
that he had not seen it before and the reference to a bag was a mistake; he
did not tell Cornejo to spit out a bag, did not see a plastic baggie in Cornejo’s
hand or mouth, and did not tell Bruno he saw a plastic baggie in Cornejo’s



      2Other mistakes he described were stating Cornejo’s first name as
“Robert” when the name he had been given was “Norman” and indicating the
date as March 22, 2015, rather than March 29, 2015.


                                         9
mouth. Diehl acknowledged that at his deposition, when asked if he recalled
“a plastic baggie being in Cornejo’s hand,” he replied, “Not in his hand. If I
was giving descriptions, it is what I observed in his mouth.” Diehl
acknowledged at trial that he did not believe Cornejo’s statement that he only
swallowed gum.
      Hazelwood testified that he “probably” reviewed the probable cause
declaration and did not recall whether he made any corrections, as “[t]his is
between Officer Bruno and the judge.” As field training officer, Hazelwood
reviewed Bruno’s reports and occasionally suggested revisions for
grammatical errors. He acknowledged that if he had seen the statement
indicating he saw Cornejo put a plastic baggie in his mouth and in fact he
had not seen Cornejo do this, he would have told Bruno so at the time and
asked Bruno to correct the declaration of probable cause. Hazelwood
testified, however, that he did not see this sentence when he reviewed the
document; the reference to a plastic baggie was first brought to his attention
at his deposition. He also did not see the sentence in Bruno’s report saying
“Officer Diehl instructed Cornejo to spit out the bag.” Hazelwood testified
that he did not see Cornejo put anything in his mouth, as Cornejo’s back was
to him, and he did not hear Diehl tell other officers he believed Cornejo had
swallowed a controlled substance.
      Deputy Sheriff Ivan Stewart, the intake officer on duty when Cornejo
was brought to Glenn E. Dyer Detention Facility, about 5:30 a.m., testified
that there was no nurse at the gate. The procedure was for the intake deputy
to ask the arrestee a series of medical screening questions and summon a
nurse if any were answered in the affirmative. Stewart remembered one of
the CHP officers saying that Cornejo had said he swallowed gum, and during
intake, Cornejo said the same thing. Cornejo responded “no” when asked if



                                       10
he was taking prescription medication, was under the influence of drugs or
alcohol, or had an addiction to drugs or alcohol. Despite this response,
Stewart marked “yes” on the form for “is the arrestee under the influence of
drugs/alcohol,” and circled “drugs.” He did so in an effort to be “extra
cautious” and alert the nursing staff who would be conducting a full
screening before Cornejo entered the general jail population, because the
arrest report indicated Cornejo had been arrested for possession of drug
paraphernalia, along with “everything I was told regarding the fact that he
had swallowed gum.” The CHP officers did not tell Stewart that Cornejo
swallowed a plastic baggie or that they believed he swallowed a controlled
substance. If they had, Stewart would have summoned a nurse. Cornejo
appeared calm and lucid, not showing any signs of medical distress.
      Deputy Sheriff Kevin Beyrodt noticed Cornejo waiting for further
processing and recognized him as having previously been through the facility.
Knowing Cornejo to “not be a problem,” Beyrodt took him into a secondary
cell to continue his screening. The jail had two holding cells for single
occupants in use at the time, with three-foot square windows in the steel
doors that allow seeing “pretty much every corner” of the cell. The cells have
adjoining walls and one of the two cells is directly across from the nurse’s
station.
      Cornejo told Beyrodt he had been charged with resisting arrest after
the CHP officers thought he had swallowed something and Cornejo said it
was gum. Cornejo’s demeanor was “lighthearted” and unconcerned, giving
the impression he thought the officers had made a mistake. Beyrodt told him
the jail had medical staff if he needed assistance; he could be taken to a
hospital to have his stomach pumped; and if he did not want to tell anyone




                                       11
what he had ingested, there were toilets in the cell that no one monitored in
which he could throw up or otherwise expel something from his body.
      Beyrodt went to Cornejo’s cell at least four times that morning, each
time asking if he needed medical attention. Cornejo declined each offer,
saying there was nothing to be concerned about. Beyrodt reminded Cornejo
that he could expel anything himself and no one would know. Beyrodt
testified that he had a good rapport with Cornejo; he did not believe Cornejo
had swallowed a controlled substance but continued to raise the subject
because “that’s the last thing I want to have happen, so it’s just something
I’m going to mention.”
      Beyrodt and another deputy escorted Cornejo to have a booking
photograph taken at 6:08 a.m. When Beyrodt came to get him, Cornejo’s
shoes were off and he was starting to sweat; Cornejo said he was hot.
Beyrodt told Cornejo “you are acting different” and asked if anything was
going on, and Cornejo said he had used cocaine prior to his arrest. Beyrodt
again offered medical attention and Cornejo again declined.
      When Cornejo went back to the cell after the booking photograph, he
was still sweating and he was acting “slightly different . . . a little jovial,” but
communicating and lucid. After leaving the intake area, Beyrodt heard a
radio broadcast of a “man down” in a holding cell and returned to see Cornejo
on the floor, shaking, with foam in his mouth. Two or three deputies and the
nurse were already there and an ambulance had been called. After Cornejo
was taken by the paramedics, Beyrodt saw vomit in his cell and “bologna or
something” but he was not sure if it was from Cornejo or “prior.”
      Medical examiner Paul Hermann performed the autopsy on Cornejo on
April 1, and concluded he died of acute methamphetamine intoxication.
Herrmann looked for evidence that Cornejo had swallowed baggies



                                         12
containing drugs and found no plastic or other foreign material in his
gastrointestinal tract.
      CHP Lieutenant Eric Jones testified as the CHP’s designated “person
most knowledgeable” regarding issues in the present case, and the jury was
instructed to regard his testimony as that of the CHP. He testified that
section 100.69 of the CHP Manual states, “Officers shall arrange for a
medical examination whenever a prisoner appears to be in need of or
requests medical attention, regardless of outward symptoms of illness or
injury.” “Arrange for a medical examination” is not defined in the CHP
Manual but examples would include calling an ambulance or taking someone
to the hospital. Asked how someone would appear to be in need of medical
attention without outward symptoms of illness or injury, Jones offered as an
example that a person involved in a serious car accident should get medical
attention even without obvious lacerations or broken bones. He testified that
an officer should obtain medical treatment for someone displaying outward
injury even if the person declines medical treatment. Asked if the policy
would require officers to arrange for a medical examination if they observe
suspected ingestion of drugs, Jones said that specific scenario was not
covered in the policy and officers would be expected to use sound professional
judgment to determine whether medical attention was needed. In some
circumstances, taking an arrestee to a jail staffed with medical professionals
could satisfy the requirement to arrange for a medical examination,
depending on the procedures and staffing of the particular jail.
      Dr. Edward Cetaruk, an emergency physician and medical toxicologist
who practices in Colorado, testified as plaintiffs’ expert in emergency
medicine and toxicology. Of the 10 or 15 patients Dr. Cetaruk had personally
treated who opportunistically ingested a controlled substance, none had died.



                                      13
In one study he had reviewed, the Oregon Poison Center reported that of 55
patients who had opportunistically swallowed methamphetamine in an
attempt to conceal it, the only fatality was a person who had a heart attack
before arriving at the hospital.
      Dr. Cetaruk opined that if Cornejo had been taken to the hospital after
his arrest, he more than likely would have survived. He explained that the
earlier a person in this situation is treated, the more opportunity there is to
avoid or treat toxicity. Methamphetamine does not cause problems while still
in the gastrointestinal tract; its effect occurs when it is absorbed.
Methamphetamine increases heart rate and blood pressure, dilates the pupils
and causes a cold, clammy sweat; with more toxicity, there can be a change in
mental status such as confusion, delirium, seizures or coma, very high body
temperature, nausea, vomiting, and respiratory failure. There is no antidote
for amphetamines, so treatment consists of administering drugs to counteract
their effects and supportive care for symptoms. If brought to the emergency
room before cardiac arrest or another severe event, the person survives more
often than not.
      Assuming police officers saw Cornejo swallow a plastic baggie they
believed contained a controlled substance and Cornejo said he only swallowed
gum, if Cornejo had been taken to an emergency room, the typical practice
would be observation for 6 to 24 hours. In Dr. Cetaruk’s experience, some
prisoners in this situation are “forthcoming” with their histories and others
are not; many do not want treatment. An individual in custody who refused
treatment would be kept for observation, with the police officer remaining
present. If signs of toxicity occur and the prisoner consents, agents can be
given to remove the suspected substance from the gastrointestinal tract and
avoid further absorption. Patients who have not consented to treatment and



                                        14
become clearly ill and unable to make appropriate decisions would be placed
on a drug and alcohol hold and treated against their will. In Colorado, a
doctor acting in good faith and providing treatment a “normal” person would
consent to can impose an alcohol or drug hold unilaterally; Dr. Cetaruk did
not know what the procedure would be for such a hold in California.
      Dr. Cetaruk testified that the records indicated Cornejo was lucid when
he was arrested and booked into jail; this would have been the appropriate
time for observation based on suspicion but not for an alcohol or drug hold.
Observation could be in a jail rather than a hospital if the jail had “a medical
facility that was capable of properly observing” the prisoner.
      Dr. Cetaruk testified that toxicology testing detected
methamphetamine and amphetamine in Cornejo’s blood drawn at 9:46 a.m.
on March 29.3 Amphetamine occurs as methamphetamine is metabolized, so
the ratio of methamphetamine to amphetamine indicates how recently the
methamphetamine was ingested. Cornejo’s ratio, about 21:1, indicated
ingestion in the preceding few hours. Dr. Cetaruk estimated Cornejo
ingested “in the order of a few grams or a couple grams” based on the degree
of his toxicity.
      Plaintiffs’ medical expert, emergency physician Dr. Gary Tamkin, also
testified that the sooner medical treatment is received by a person who has
ingested an unknown amount of a controlled substance, the higher the
person’s chances of survival. Within the first hour after ingestion, methods
for removing the substance and preventing absorption—stomach pumping or
treatment with charcoal—can be attempted, albeit not without risk; after a
few hours, only supportive treatment is available, treating complications as
they arise. By the time Cornejo started showing signs of toxicity, around 7:00

      3   No cocaine was found.


                                       15
a.m., it was too late for decontamination by means of stomach pumping or
charcoal absorption.
      Dr. Tamkin testified that he is expected to speak privately with an
arrestee who is brought to the emergency room, because an arrestee is
entitled to the same medical privacy as other patients. In his experience with
hundreds of arrestees brought to the emergency room, he had never
personally had an arrestee who was refusing treatment admit swallowing a
controlled substance after telling the officer otherwise. Asked what he would
do if law enforcement brought an arrestee to the emergency room and said
they saw him swallow a baggie of what they believed to be drugs and found a
methamphetamine pipe in his car, Dr. Tamkin said he would speak to the
arrestee in private and try to convince him to consent to treatment; absent
consent, he would hold the arrestee for observation for 6 to 12 hours. Even if
the arrestee denied ingestion, once he was discharged it would be with
printed instructions indicating what signs and symptoms to watch for.
      Tamkin testified that patients have a right to refuse medical treatment
as long as they are able to understand their situation and make informed
decisions about their care. In California, physicians can take over medical
decision making if the patient is not able to assess the situation and make
decisions, but the determination that the patient is incapable must be made
by two physicians.
      Dr. Tamkin testified that it was impossible to answer the question
whether there was a point at which Cornejo could not have been saved: His
chances of survival would have been better the sooner he was treated, but
even at the point he was found having seizures, although his chances would
have been significantly reduced, survival was not impossible. He had
testified at his deposition that Cornejo more likely than not would have



                                      16
survived if he had admitted to officers on the scene that he swallowed
methamphetamine, was immediately taken to the hospital, and admitted the
ingestion to hospital staff.
      David Fairbrother, plaintiffs’ expert on police policy and practices,
opined that the officers exercised a “less than satisfactory level of care” by
failing to correctly establish that Cornejo “was a victim of drug ingestion in
combination possibly with alcohol” and needed medical care. He testified
that the officers ignored the indications that Cornejo ingested drugs to avoid
prosecution and failed to fully investigate his condition with basic field
sobriety tests, and the supervisor called in because the officers thought
Cornejo was trying to conceal something, failed to provide adequate
supervision.4 The CHP policy requiring a “medical examination,” to
Fairbrother, means bringing the prisoner to a medical facility with a
physician, most likely an emergency room. How a person would appear to be
in need of medical attention without “outward symptoms of illness or injury”
would be “very circumstantial” but would include a serious car accident,
poisoning or drug overdose, where a person might not show symptoms
initially but “if you are aware that that’s happened, then they’re going to
have to be medically cleared.” Fairbrother testified that under the CHP
policy, Cornejo was not required to incriminate himself by revealing he
swallowed methamphetamine in order to get medical treatment. His


      4 The combination of circumstances Fairbrother discussed as indicating
Cornejo swallowed drugs to avoid a felony charge were that he was pulled
over in “an urban area known for drug use” for driving without headlights, “a
classic sign of somebody under the influence”; the car smelled of alcohol;
Diehl thought Cornejo might have taken a plastic baggie from his shoe and
put it in his mouth; Cornejo chewed rapidly, resisted the officer, and tried to
flee; there was no odor of gum or sign of gum wrappers; and a
methamphetamine pipe and Brillo pad were found in the car.


                                       17
opinions were based in part on the officers’ observation of a plastic bag, which
alarmed him because methamphetamine in a plastic bag would be “many
servings.” He acknowledged that Diehl was trying to help Cornejo get
medical attention when he warned Cornejo he needed to tell the officers if he
swallowed drugs, and that Cornejo could have requested medical attention
without explanation and received it, and in fact declined medical attention
for his shoulder.
      Clarence Chapman, defendants’ expert on law enforcement practices
and procedures, testified there was no reason for Diehl to do further field
sobriety tests after Cornejo’s attempt to flee because Cornejo was already
being arrested for resisting an officer and possession of drug paraphernalia
and it would have been irresponsible for the officers to unrestrain him.
Chapman testified that the officers determined Cornejo did not appear to be
in need of medical attention and opined that the officers’ decision to take
Cornejo to the Glenn E. Dyer Detention Facility was reasonable.
                                 DISCUSSION
                                        I.
      “A plaintiff in a negligence suit must demonstrate ‘ “a legal duty to use
due care, a breach of such legal duty, and the breach as the proximate or
legal cause of the resulting injury.” ’ (Beacon Residential Community Assn. v.
Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)” (Vasilenko v.
Grace Family Church (2017) 3 Cal.5th 1077, 1083.) “The existence of a duty
is a question of law, which we review de novo.” (Ibid.)
      Defendants argue that an officer has no legal duty to obtain a medical
evaluation for an arrestee who is suspected of having ingested a controlled
substance but declines medical assistance and shows no signs of drug
ingestion while in the officer’s custody.



                                       18
      “Public employees are liable for injuries resulting from their acts or
omissions to the same extent as private persons, except where otherwise
exempted or immunized by law. ([Gov. Code,] § 820.) Public entities are
correspondingly liable for the negligent acts or omissions of their employees
acting within the scope of their employment except where either the
employee or the public entity is immunized from liability by statute. ([Gov.
Code,] § 815.2.) . . . Where a legal duty is not created by statute, the question
of whether a legal duty exists is analyzed under general principles of tort
law.” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 264.)
      “ ‘The most important of [the] considerations in establishing duty is
forseeability. As a general principle, a “defendant owes a duty of care to all
persons who are foreseeably endangered by his conduct, with respect to all
risks which make the conduct unreasonably dangerous.” ’ (Tarasoff v.
Regents of University of California (1976) 17 Cal.3d 425, 434–435,
quoting Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399.)”
(Giraldo v. Department of Corrections & Rehabilitation (2008) 168
Cal.App.4th 231, 245 (Giraldo).) As will be further discussed, while there is
generally no duty to come to the aid of another, such certain relationships do
give rise to a duty of care. (Giraldo, at p. 245.)
      Preliminarily, plaintiffs argue that defendants cannot disclaim the
existence of a legal duty because they stipulated at trial to a jury instruction
stating, “An officer has a duty not to increase the risk of harm to someone in
his custody.”5




      5This argument was initially raised in a motion to dismiss this appeal,
which we took under submission and now deny. The issues raised in the
motion to dismiss will be addressed in this opinion.


                                        19
      Defendants argue they are not precluded from raising the issue of duty
because they stipulated to the instruction above only after the trial court
ruled against them on this issue in the context of their demurrer to plaintiffs’
third amended complaint. In their demurrer, defendants argued that the
cause of action for negligence failed to plead facts imposing a duty to take
Cornejo anywhere other than jail. In opposition, plaintiffs argued that once
Cornejo was taken into custody, a special relationship was created that
imposed upon the officers a duty to arrange for medical attention when they
saw Cornejo swallow a plastic baggie containing what they presumed to be a
controlled substance. The trial court sustained the demurrer to the first
cause of action with leave to amend “to allege a claim for negligence based
solely on Government Code section 815.2” and stated, “the court is currently
inclined to find that plaintiffs have alleged facts that, if true, may give rise to
a duty pursuant to Government Code [section] 815.2. (See Third Amended
Complaint paragraphs 10-21.)”6 The fourth amended complaint contains the
same allegations referenced in the trial court’s order.
      The jury instruction to which defendants agreed—which they do not
challenge on this appeal—acknowledged the existence of a duty defined much
more generally than the duty the parties dispute on this appeal. Defendants
made clear in the trial court, through the demurrer and their trial brief
arguing they had no duty to take Cornejo to the hospital given the absence of



      6Further statutory references will be to the Government Code except
as otherwise specified.
       Section 815.2, subdivision (a), provides: “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.”


                                        20
any signs of drug intoxication and Cornejo’s refusal to accept medical
attention, their disagreement with the claim that they had a duty to arrange
for medical care in the circumstances of this case. Neither the jury
instruction they accepted nor the statement in their brief that “[i]f a need for
immediate medical care of an arrestee is apparent, the law imposes liability
for a failure to summon such care” necessarily contradicts their argument
that they did not have a duty to take Cornejo to the hospital.
      Plaintiffs also contend defendants are precluded from arguing lack of
duty because they did not make this argument during trial or in their motion
for judgment notwithstanding the verdict. As just described, however,
defendants did argue lack of duty in their demurrer; the trial court ruled
against them. Plaintiffs point out that in argument to the jury, defendants
described negligence as the “failure to use reasonable care to prevent harm to
oneself or to others” and discussed the concept of reasonableness, but did not
address the issue of duty. As the “existence and scope of duty are legal
questions for the court” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477),
it is not clear what plaintiffs think defendants should have argued to the jury
on the issue of duty.
      As to the judgment notwithstanding the verdict, plaintiffs cite Lee v.
West Kern Water Dist. (2016) 5 Cal.App.5th 606, 635, which held that a party
appealing the denial of a motion for judgment notwithstanding the verdict
could not rely upon an argument not raised in the motion in the trial court.
Here, however, defendants appealed from the judgment as well as from the
order denying their motion for judgment notwithstanding the verdict. Their
argument concerning the issue of duty is directed at the judgment, not at the
order denying the motion for judgment notwithstanding the verdict.




                                       21
      Defendants argue that in the circumstances of this case, no duty is
established by statute, by the special relationship doctrine or under the
factors enumerated in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland).7
In their view, no statute imposes a duty on officers to obtain medical care for
an arrestee; no special relationship was created because the officers took no
affirmative action increasing the risk to Cornejo, who created his own peril by
swallowing the methamphetamine, and Cornejo did not detrimentally rely
upon the officers for assistance; and there was no basis for the officers to
override Cornejo’s constitutional right to refuse medical treatment.
      Plaintiffs point to the statutes generally making public employees
liable in negligence to the same extent as a private person, and public entities
liable if the employees were acting within the scope of their employment (Civ.
Code, § 1714; Gov. Code, §§ 820, 815.2.)8 Plaintiffs main argument, however,


      7 Civil Code section 1714, subdivision (a), provides: “Everyone is
responsible, not only for the result of his willful acts, but also for an injury
occasioned to another by his want of ordinary care or skill in the
management of his property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself . . . .”
Rowland explained that “[a] departure from this fundamental principle
involves the balancing of a number of considerations; the major ones are the
foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the availability,
cost, and prevalence of insurance for the risk involved.” (Rowland, supra, 69
Cal.2d at pp. 111–113.)
      8Plaintiffs additionally point to section 845.6, which provides in part,
“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.” Plaintiffs recognize

                                       22
is that once Cornejo was arrested, a special relationship was created that
gave rise to a duty of care.
      “ ‘As a rule, one has no duty to come to the aid of another. A person
who has not created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act.’ (Williams v.
State of California [(1983)] 34 Cal.3d [18,] 23.) More specifically, ‘law
enforcement officers, like other members of the public, generally do not have
a legal duty to come to the aid of [another] person . . . .’ (Lugtu v. California
Highway Patrol, supra, 26 Cal.4th at p. 717.)” [¶] Liability may be imposed if
an officer voluntarily assumes a duty to provide a particular level of
protection, and then fails to do so (see Williams, . . . at pp. 23–24 & fn. 3;
Baker v. City of Los Angeles (1986) 188 Cal.App.3d 902, 908), or if an officer
undertakes affirmative acts that increase the risk of harm to the plaintiff.
(See Benavidez v. San Jose Police Dept. [(1999)] 71 Cal.App.4th [853,]
863; Mann v. State of California (1977) 70 Cal.App.3d 773, 780.)” (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1128–1129.)


that this statute does not directly apply here, as the statutory definition of
prisoner does not include an arrestee (§ 844 [“ ‘prisoner’ includes an inmate of
a prison, jail, or penal or correctional facility”]), but see it as “indicative of the
scope of the duty of care towards persons in custody.”
       Defendants assert that the CHP Manual, which provides that “officers
shall arrange for a medical examination whenever a prisoner appears to be in
need of or requests medical attention, regardless of outward symptoms of
illness or injury,” does not create a duty because there is no evidence the CHP
Manual was adopted pursuant to the state or federal Administrative Act.
(Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th
895, 908; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 720;
Evid. Code, § 669.1.) Plaintiffs do not suggest the CHP Manual creates a
statutory duty; they properly rely upon it as bearing on the question of
breach of duty. (Minch, at p. 908; Lugtu, at pp. 720–721.)


                                         23
      In Giraldo, supra, 168 Cal.App.4th 231, we held there is a special
relationship between a jailer and prisoner. “It has been observed that a
typical setting for the recognition of a special relationship is where ‘the
plaintiff is particularly vulnerable and dependent upon the defendant who,
correspondingly, has some control over the plaintiff’s welfare.’ (Kockelman v.
Segal (1998) 61 Cal.App.4th 491, 499, citing Prosser & Keeton, Torts (5th
ed.1984) § 56, p. 374.) Thus, and as our Supreme Court has noted, a special
relationship has been found to exist between business proprietors such as
shopping centers, restaurants, and bars, and their tenants, patrons, or
invitees, and also between common carriers and passengers, innkeepers and
their guests, and mental health professionals and their patients. (Delgado [v.
Trax Bar & Grill (2005)] 36 Cal.4th [224,] 235–236.)” (Giraldo, at pp. 245–
246.) “[I]mportant factors in determining whether a relationship is ‘special’
include vulnerability and dependence. Prisoners are vulnerable. And
dependent. Moreover, the relationship between them is protective by nature,
such that the jailer has control over the prisoner, who is deprived of the
normal opportunity to protect himself from harm inflicted by others. This, we
conclude, is the epitome of a special relationship, imposing a duty of care on a
jailer owed to a prisoner.” (Id. at pp. 250–251.)
      The parties have not cited, and we are not aware of, any California
cases discussing the special relationship concept in the context of an arrestee
—an individual who has been taken into custody but not yet booked into a
jail or other correctional facility. (See § 844.)9 The Ninth Circuit, however,


      9 Under section 844, “a lawfully arrested person who is brought into a
law enforcement facility for the purpose of being booked, as described in
Section 7 of the Penal Code, becomes a prisoner, as a matter of law, upon his
or her initial entry into a prison, jail, or penal or correctional facility,
pursuant to penal processes.”


                                       24
recently applied our reasoning in Giraldo to the arrest context, predicting
that the California Supreme Court would conclude a “similar relationship
exists between a law enforcement officer and an arrestee in his custody in
need of immediate medical attention.” (Winger v. City of Garden Grove
(9th Cir. Mar. 18, 2020) 806 Fed. Appx. 544.) Winger reversed a summary
judgment in favor of the police department, finding there was a genuine
factual dispute as to whether officers breached their duty of reasonable care
to an arrestee by failing to take her to a hospital instead of jail, despite her
refusal of medical care, where there was evidence from which a reasonable
jury could have concluded the officers should have recognized the arrestee
was displaying symptoms of a stroke, required immediate medical attention
and was not capable of refusing medical care. (Id. at p. 546.) We agree that
the same factors we discussed in Giraldo apply to the relationship between a
law enforcement officer and arrestee: Once in custody, an arrestee is
vulnerable, dependent, subject to the control of the officer and unable to
attend to his or her own medical needs. Due to this special relationship, the
officer owes a duty of reasonable care to the arrestee.
      In framing the question as whether the officers had a duty to take
Cornejo to the hospital rather than to jail, defendants muddle the distinctions
between the existence and scope of duty and breach of the standard of care.
Once Cornejo was in custody, he was subject to the control of the officers and
no longer in a position to attend to his own medical needs. At this point,
regardless of Cornejo’s role in creating his predicament, the officers had a
duty to use reasonable care in responding to the situation. Whether the
officers should have recognized a need for immediate medical attention
despite the absence of symptoms of drug use and Cornejo’s disclaimers and
rejection of offers of medical assistance was a question of fact, as was the



                                        25
question whether the duty of care was satisfied by taking Cornejo to jail
rather than the hospital.10 These were questions for the jury, not legal
questions delineating the scope of the duty.
      Defendants attempt to distinguish Giraldo, and argue no special
relationship existed here, because Cornejo refused repeated offers of medical
attention and did not appear to be in medical distress. Unlike the prisoner in
Giraldo, who had no ability to protect herself from attacks by her cellmate
that she had repeatedly reported to prison employees, defendants argue,
Cornejo was not deprived of his “normal opportunities to obtain medical
attention.” This argument ignores the obvious import of Cornejo being placed
under arrest: He was dependent upon the officers for medical assistance.
Moreover, according to the evidence at trial, he could not obtain such
assistance without admitting his commission of the crime of possession of a
controlled substance. Defendants’ focus on Cornejo’s constitutional right to




      10  Defendants contend that if they had any duty to Cornejo, it was
satisfied by taking him to the jail, where medical personnel would be on site,
and informing the intake deputy of the circumstances of the arrest. They
acted reasonably, they maintain, by offering Cornejo medical attention,
warning him there could be adverse consequences if he had swallowed drugs,
offering him medical attention when he complained of pain after being taken
to the ground and handcuffed. They point out that the officers called a
supervisor to the scene, who also interviewed Cornejo and offered medical
attention; that the supervisor directed Hazelwood to tell the intake officer at
the jail that Cornejo had swallowed something he claimed to be gum, and
Hazelwood did so; that the intake deputy noted Cornejo might have taken
drugs but did not summon a nurse to the intake gate; that jail personnel had
a statutory duty to provide medical care if they knew or had reason to know
Cornejo was in need of immediate medical care; and that Cornejo was lucid
and showed no signs of drug intoxication while in CHP custody.


                                      26
reject medical treatment thus obscures his constitutional right against self-
incrimination.11
      Defendants’ other attempts to avoid liability also overlook the
consequence of Cornejo’s custodial status. Defendants rely upon Hernandez
v. City of San Jose (1993) 14 Cal.App.4th 129, 135, to argue officers do not
enter a special relationship with an individual against whom they have taken
law enforcement action. In that case, after being stopped for driving without
a license and having the car in which they were driving impounded,
teenagers arranged for a ride home and were injured in a car crash.
Hernandez held the officers had no duty to take charge of or make
arrangements for the teenagers, and did not create a peril for them by



      11 Defendants point to Jauregui v. Superior Court (1986) 179
Cal.App.3d 1160, in arguing that involuntary medical treatment of an
arrestee violates the arrestee’s constitutional rights even where he or she
may have ingested a large quantity of drugs. In that case, officers with a
warrant to search an individual and his residence observed him swallow
what they suspected to be balloons containing heroin. (Id. at pp. 1162–1163.)
He was arrested for possession of narcotics paraphernalia found in his motel
room and taken to a hospital where, after refusing medical treatment and
nevertheless being subjected to X-rays that showed balloons in his stomach,
he was confronted with a telephonic search warrant and told it authorized
administration of an emetic to cause him to vomit. (Id. at p. 1163.) He drank
the required solution and five balloons were recovered after he regurgitated.
(Ibid.) Jauregui held suppression of the evidence was required because the
search warrant in fact did not authorize the bodily intrusion to which the
arrestee was subjected. (Id. at pp. 1164–1167.)
      The present case does not involve an involuntary bodily intrusion
intended to recover evidence of a crime. According to the evidence at trial, if
Cornejo had been taken to the hospital and declined treatment, he would
have been held for observation unless and until sufficient time passed to be
sure he was not in danger or he exhibited symptoms of toxicity such that he
became unable to make informed medical decisions. The Jauregui court did
not consider any question of the arresting officers’ civil tort liability.


                                       27
impounding the car. The enforcement action in Hernandez, as here, was
stopping a vehicle for a traffic violation; the difference is that the present
case resulted in a custodial arrest.
      Defendants’ reliance upon Davidson v. City of Westminster (1982) 32
Cal.3d 197, 201 (Davidson), for the proposition that officers do not increase
the risk of harm by failing to act on their suspicion that an individual may be
injured in the future is also unpersuasive. The officers in Davidson failed to
warn or protect a woman they saw in a laundromat with a person suspected
of previous stabbings. (Id. at p. 201.) They were held not liable for failing to
prevent the attack that ensued because their knowledge of the danger did not
give rise to a special relationship between the victim and the officers. (Id. at
pp. 208–209.) The officers’ awareness of potential danger to a member of the
public in Davidson is entirely different from arresting officers’ awareness
that a person they have taken into custody may suffer harm from actions the
officers observed the arrestee taking.
      Nor is defendants’ case supported by Lehto v. City of Oxnard (1985) 171
Cal.App.3d 285, 291, which held that officers who failed to prevent a drunk
driver from continuing to drive were not liable to another driver subsequently
injured in a collision with the drunk driver. Defendants note Lehto’s
description of Davidson as holding that “a police officer does not act
affirmatively to increase the risk of harm by failing to stop an individual from
acting dangerously.” (Lehto, at p. 291, quoting Davidson, at pp. 208–209.)
Plaintiffs are not seeking to impose liability for defendants’ failure to prevent
Cornejo from taking dangerous action; their claims are based on the officers’
response in the face of dangerous action they suspected he had already taken.
Lehto’s holding that there was no special relationship between the officers
and the victim of an accident caused by a person the officers had previously



                                         28
stopped for a traffic violation says nothing about the relationship between a
law enforcement officer and a person they have taken into custody.12
                                            II.
      Defendants contend the trial court erred in denying their motion for
judgment notwithstanding the verdict because their failure to take Cornejo to
the hospital was not a proximate cause of his death. “A motion for judgment
notwithstanding the verdict may be granted only if it appears from the
evidence, viewed in the light most favorable to the party securing the verdict,
that there is no substantial evidence in support.” (Sweatman v. Department
of Veterans Affairs (2001) 25 Cal.4th 62, 68.) On appeal, “[a]s in the trial
court, the standard of review is whether any substantial evidence—
contradicted or uncontradicted—supports the jury’s conclusion.” (Ibid.)
      Proof of the causation element of negligence requires the plaintiff to
establish that the defendant’s breach of duty was a substantial factor in
bringing about the harm. (Leslie G. v. Perry & Associates (1996) 43
Cal.App.4th 472, 481 (Leslie G.).) “ ‘The concept of proximate or legal cause
has “defied precise definition.” [Citations.] . . . [¶] Whether a defendant’s
conduct actually caused an injury is a question of fact [citation] that is
ordinarily for the jury [citation]. . . . Our Supreme Court has . . . observed
that the “substantial factor” test generally subsumes the “but for” test.
[Citation.] [¶] However the test is phrased, causation of fact is ultimately a
matter of probability and common sense. . . .’ (Osborn v. Irwin Memorial
Blood Bank (1992) 5 Cal.App.4th 234, 252–253.) ‘The substantial factor
standard is a relatively broad one, requiring only that the contribution of the



      12Having concluded defendants had a special relationship with Cornejo
creating a duty of care, we need not address defendants’ argument that there
was no duty under the Rowland factors. (Rowland, supra, 69 Cal.2d 108.)


                                       29
individual cause be more than negligible or theoretical.’ (Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978.) Even ‘a very minor force’
that causes harm is considered a cause in fact of the injury. (Bockrath v.
Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) However, ‘ “a force which
plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about [the] injury
. . . is not a substantial factor” . . . .’ (Ibid.)” (Uriell v. Regents of University of
California (2015) 234 Cal.App.4th 735, 744.)
      Defendants argue there could be no reasonable inference of causation
from the evidence presented at trial. They emphasize that where plaintiffs
rely upon circumstantial evidence, they must prove the inferences favorable
to their case are “more reasonable or probable than those against” them, not
just that the favorable inferences are consistent with their theory of the case.
(Leslie G., supra, 43 Cal.App.4th at p. 483.) “Although proof of causation may
be by direct or circumstantial evidence, it must be by ‘substantial’ evidence,
and evidence ‘which leaves the determination of these essential facts in the
realm of mere speculation and conjecture is insufficient.’ ” (Id. at p. 484,
quoting Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 471.)
      Defendants argue that plaintiffs’ case depended on their assertion that
Cornejo swallowed a plastic baggie, in order to support the inference that the
amount he swallowed was large enough to be lethal. Defendants argue the
evidence was insufficient to prove the existence of such a baggie: The medical
examiner did not find a plastic baggie or remnants of one at the autopsy, the
officer who saw vomit on the floor of the holding cell testified that he thought
it contained bologna but did not say he saw a plastic baggie, and all the
officers at the scene of the arrest testified they did not see or hear reference
to a plastic baggie. Defendants dismiss the significance of the two sentences
in the declaration of probable cause describing Bruno and Hazelwood



                                          30
observing Cornejo put “what looked like a plastic baggie” in his mouth and
Diehl instructing Cornejo to “spit out the bag” because of the officers’
testimony to the contrary and Bruno’s testimony that the statements he
drafted were a mistake. In addition to the absence of evidence a baggie
existed, defendants maintain, there was no basis in the evidence for a
reasonable inference that Cornejo would have consented to medical
treatment if the officers had taken him to the hospital, as he had rejected all
offers of medical care from the officers.
      Assuming for purposes of discussion that the existence of a baggie was
critical to plaintiffs’ case, the probable cause declaration was evidence that
officers saw Cornejo put a plastic baggie in his mouth. Although
subsequently repudiated, the statements that Bruno and Hazelwood saw
“what looked like a plastic baggie” and that Bruno heard Diehl instruct
Cornejo to spit out “the bag” were unequivocal and made under penalty of
perjury. The jury also heard deposition testimony in which Diehl seemed to
acknowledge (albeit somewhat ambiguously) having seen a plastic baggie in
Cornejo’s mouth.13 There was a direct conflict between this evidence and the
testimony of the officers at trial that none saw or heard reference to a plastic
baggie. This conflict in the evidence was for the jury to resolve. Defendants
cannot simply assert that because the officers’ claimed the probable cause
declaration was erroneous, it had to be rejected as evidence.
      Contrary to defendants’ apparent assumption, plaintiffs’ case did not
depend on an unsupported inference that if taken to the hospital Cornejo
would have consented to treatment. Both medical experts testified that an



      13 Diehl was asked at his deposition, “In your mind’s eye, do you recall a
plastic baggie being in Cornejo’s hand?” He responded, “Not in his hand. If I
was giving descriptions, it is what I observed in his mouth.”


                                        31
arrestee brought to the hospital due to suspected ingestion of a controlled
substance, in the absence of consent to treatment, would be held for
observation. Both testified that if and when the arrestee became too
impaired to make informed decisions about medical treatment, procedures
could be instituted to permit medical personnel to provide treatment.
Defendants maintain that plaintiffs’ expert wrongly assumed Cornejo’s
consent would not be needed for treatment “once signs of drug toxicity have
developed,” but Dr. Cetaruk’s testimony in fact tied the “signs and symptoms”
to the person being “greatly disabled and not able to make an adequate
decision because now they’re intoxicated on the methamphetamine or
whatever else they may have ingested.” He explained that while a lucid
person could decline treatment and “sign out against medical advice,” “in the
case of drug or alcohol impairment, the impairment of either the drug or the
alcohol has precluded them from making an informed decision about their
care.” The situation he described was consistent with the testimony of
defendants’ expert, although in California two physicians must agree that a
patient is incapable of understanding the situation and making informed
decisions, whereas in Colorado the determination can be made by a single
physician. Plaintiffs’ theory of the case was that if Cornejo had been taken to
the hospital, even if he did not consent to treatment, he would have been held
for observation and, as symptoms of toxicity developed, treatment could have
been provided.
      Defendants argue that there is no substantial evidence Cornejo’s
probability of survival would have exceeded 50 percent at the point he either
consented to treatment or became too incapacitated to refuse treatment. The
argument is based on Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504–
1505 (Bromme), which held that “California does not recognize a cause of



                                      32
action for wrongful death based on medical negligence where the decedent
did not have a greater than 50 percent chance of survival had the defendant
properly diagnosed and treated the condition.”
      In Bromme, there was evidence that the defendant doctor should have
diagnosed his patient’s colon cancer in June 1980, and at various points
thereafter, but the correct diagnosis was not made until January 1982.
(Bromme, supra, 5 Cal.App.4th at p. 1494.) Medical testimony established
that after June 1981, the patient’s chance of survival dropped from 70 to 75
percent down to 40 percent or less. (Id. at p. 1495.) The trial court granted a
defense motion for nonsuit as to claims of negligence after June 1981 because
after that point it was more probable the patient died due to the cancer than
due to anything the doctor failed to do. (Id. at p. 1496.) Affirming, Bromme
explained that in order to prove the patient’s death was “ ‘caused by’ ” the
defendant’s negligence, as required by the wrongful death statute (Code Civ.
Proc., § 377.60), the plaintiff “had to establish a ‘reasonable medical
probability’ that the negligence was sufficient of itself to bring about the
death, i.e., the death was ‘more likely than not’ the result of the negligence.
(Bromme, at pp. 1498–1499.) Since after June 1981, it was more likely than
not the patient would die from the cancer even if she received proper medical
care, the absence of proper care after June 1981 was “not of itself sufficient to
bring about her death” and therefore not a substantial factor or cause in fact
of the death. (Id. at pp. 1498–1499.)
      Defendants recognize that Dr. Cetaruk, plaintiffs’ expert, testified it
was more likely than not Cornejo would be alive if the officers had taken him
to the hospital rather than to jail, but argue his opinion does not constitute
substantial evidence of causation because he wrongly assumed Cornejo’s
consent would not be needed for treatment once signs of drug toxicity



                                        33
developed. As just discussed, defendants’ characterization is not accurate:
Dr. Cetaruk testified that a physician could override a patient’s refusal of
treatment at the point the patient’s drug intoxication rendered the patient
incapable of making informed decisions about medical care. Dr. Cetaruk
recognized that arrestees in Cornejo’s situation often will not cooperate with
treatment and therefore must be observed for 6 to 24 hours, until it becomes
safe to release them or they become sufficiently impaired for doctors to treat
them without their consent. Unlike observation at a jail without full medical
facilities, observation at a hospital can result in immediate treatment at the
point an arrestee either consents or is found incapable of medical decision-
making.14 Dr. Cetaruk’s opinion was based on his own experience with
patients who had ingested controlled substances and review of material
including the Oregon study of individuals who had ingested
methamphetamine opportunistically. His opinion was substantial evidence
of causation.
                                      III.
      One of plaintiffs’ motions in limine sought to exclude evidence and
argument on comparative fault on the ground that tortfeasors take plaintiffs
as they find them, and Cornejo’s conduct was not relevant to the question
whether defendants negligently caused additional harm by failing to take
him to the hospital. The trial court granted the motion as to Cornejo’s
ingestion of methamphetamine and denied it as to his post-ingestion
statements and conduct.


      14 Dr. Cetaruk testified that an arrestee suspected of having swallowed
a controlled substance could be observed at a jail rather than a hospital “[i]f
there’s a medical facility in jail that was capable of properly observing them.”
Testimony at trial indicated that while nurses are on staff at Glenn E. Dyer
Detention Facility, physicians are not.


                                       34
      Defendants argue there was no legal reason to exclude Cornejo’s
intentional ingestion of methamphetamine as a cause of his death because
that conduct was the beginning of the chain of events leading to the death
and “[u]nder the comparative-negligence dispensation every party remains
liable for his proportionate share of fault, whether his conduct is described as
negligence or as willful misconduct.” (Southern Pac. Transportation Co. v.
State of California (1981) 115 Cal.App.3d 116, 121.)
      In Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606 (Harb), the
plaintiff suffered a stroke while driving and drove his car onto a sidewalk.
First responders did not immediately provide medical care because they
mistook the plaintiff’s symptoms for signs of intoxication and by the time he
was taken to the hospital, he had suffered brain damage that left him unable
to care for himself. (Id. at p. 609.) In a lawsuit alleging the first responders’
delay exacerbated the consequences of the stroke, the defendants argued that
the plaintiff was contributorily negligent for failing to take prescribed blood
pressure medication that would have reduced the risk of the type of stroke he
suffered. (Id. at pp. 615, 626.) Finding no California law on point, the Harb
court framed its decision around the fact that California has “adopted the
familiar principle of tort law that a ‘tortfeasor takes the plaintiff as he finds
him.’ ” Drawing an analogy to “the position of health care professionals who
treat patients for injuries or conditions that were caused by the patient’s
negligence” (id. at pp. 625–626, quoting Bowen v. Board of Retirement (1986)
42 Cal.3d 572, 580), Harb surveyed caselaw and concluded that courts in
other jurisdictions “generally agree that a patient’s conduct prior to seeking
medical attention should not be considered in assessing damages.” (Harb, at
p. 626.) “In contrast, most courts have held that the concept of contributory
negligence can be applied to a patient’s conduct that is concurrent or



                                        35
contemporaneous with the physician’s negligence.” (Ibid.) Harb noted that
California cases were consistent with the latter point. (Id. at p. 626, fn. 11.)
      As explained in one of the cases discussed in the Harb opinion—a
wrongful death suit against physicians who treated the plaintiffs’ daughter
for a drug overdose—“ ‘the focus in a medical malpractice case is on the
injury caused by the negligent treatment, not the original injury that created
the need for treatment.’ ” (Harb, supra, 233 Cal.App.4th at p. 627, quoting
Son v. Ashland Community Healthcare Services (Or.App. 2010) 244 P.3d 835,
843.) “A patient who negligently injures himself is nevertheless entitled to
subsequent nonnegligent medical treatment.” (Son, at p. 843.) The present
case is analogous: Plaintiffs sought to hold defendants liable for negligence
in their response to Cornejo’s ingestion of methamphetamine. His negligence
in swallowing the drug was not relevant to the officers’ response; his post-
ingestion negligence was relevant. The trial court properly excluded evidence
of the former and permitted the jury to consider evidence of the latter.
                                       IV.
      Finally, defendants contend the trial court erred in allowing plaintiffs
to present their theory that the officers attempted to coerce a confession from
Cornejo by conditioning medical treatment on his admitting he swallowed a
controlled substance. Defendants argue any subjective intention to secure
Cornejo’s confession to possession of a controlled substance was irrelevant
because negligence is based on an objective standard, and permitting
evidence and argument on the coercion theory allowed plaintiffs to argue
their previously barred Bane Act claim in the guise of negligence.
      Plaintiffs’ complaint had alleged a cause of action under the Bane Act,
which provides for civil actions against those who interfere or attempt to
interfere “by threat, intimidation, or coercion, with the exercise or enjoyment



                                       36
by any individual or individuals of rights secured by” the Constitution or laws
of the United States or the State of California. (Civ. Code, § 52.1, subd. (b).)
Earlier in the litigation, the trial court had sustained defendants’ demurrer
to this cause of action, ruling that plaintiffs “failed to allege any threat,
intimidation, or coercion beyond decedent’s detention itself.” In the same
ruling, the court prohibited plaintiffs from basing their negligence claim on “a
purported violation of Civil Code [section] 52.1.”
      Based on the ruling sustaining the demurrer, defendants moved in
limine to exclude evidence or argument that the officers attempted to coerce
Cornejo’s confession to drug possession. The trial court denied this motion,
rejecting the argument that plaintiffs’ coercion theory amounted to the
previously barred Bane Act claim.15 In the court’s view, plaintiffs were
claiming that attempting to coerce a confession by making it a condition of
medical care was a violation of the officers’ duty not to increase risk to a
detained person.16


      15 Opposing the motion in limine, plaintiffs’ counsel argued the jury
needed to hear the facts surrounding the stop, including “whether medical
treatment was offered, with or without a condition that Cornejo incriminate
himself,” but offered to stipulate that plaintiffs would not pursue a civil
rights claim. Defendants’ counsel urged plaintiffs’ argument was just a
different framing of the civil rights violation argument that had been rejected
by the federal court and found lacking in the trial court’s ruling on the
demurrer to the Bane Act claim—that Cornejo’s civil rights were violated by
“deliberate indifference to serious medical needs.” Defendants’ counsel
acknowledged officers have a duty not to do anything to increase the risk of
harm or death to a person in custody and the standard at issue in a Bane Act
claim is much higher than that in a negligence claim, but argued the coercion
argument was based on the officers’ subjective motivation, which is not
relevant to a negligence claim.
      16 After plaintiffs’ evidence was presented, they sought to amend the
complaint to conform to proof by adding the Bane Act claim back in, based on
the officers’ testimony that everyone has a right not to self-incriminate and

                                        37
      We review the trial court’s ruling on admissibility of evidence for abuse
of discretion, which is shown only where the ruling “ ‘exceeded the bounds of
reason, all of the circumstances being considered.’ ” (People ex rel. Lockyer v.
Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640, quoting People v.
DeJesus (1995) 38 Cal.App.4th 1, 32.)
      Emphasizing that the defendant’s conduct in a negligence case is
measured by the objective standard of a reasonable person (Ford v. Gouin
(1992) 3 Cal.4th 339, 356), defendants maintain that the trial court
erroneously rejected their argument that an officer’s subjective intent is
irrelevant in a negligence claim. It did not. The trial court agreed that the
relevant issue was the officers’ actions, not their “state of mind.” “The
general standard of care is ‘that of a reasonably prudent person under like
circumstances.’ ” (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255,
quoting Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.) Here, the
circumstances described by the officers included their observations of Cornejo
swallowing what they believed to be a controlled substance, their repeated
admonitions that Cornejo needed medical attention if he swallowed a
controlled substance and demands that Cornejo identify the substance, and
Cornejo’s repeated assertions that he swallowed gum and did not need
medical attention. To properly evaluate the officers’ conduct—as well as
Cornejo’s, for apportionment of comparative fault—it was relevant for the
jury to understand that Cornejo had an incentive to lie about what he
ingested and decline medical care in order to avoid admitting the crime of


that medical assistance was offered to Cornejo contingent on his admitting he
swallowed methamphetamine. This request was initially presented as a
motion for reconsideration of the ruling on the demurrer and denied by the
judge who had ruled on the demurrer, who indicated the issue should be
raised as a trial motion. The trial judge denied the motion to amend.


                                        38
possession of a controlled substance, and to assess whether and how a
reasonable officer would have taken this into account in responding to the
situation. We find no abuse of discretion.
                               DISPOSITION
      The judgment is affirmed. Costs are awarded to plaintiffs.




                                      39
                                           _________________________
                                           Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




Frausto et al. v. California Highway Patrol et al. (A156552)




                                      40
Trial Court:                   Alameda County Superior Court

Trial Judge:                   Hon. Evelio M. Grillo


Attorneys for Plaintiffs and   Bracamontes & Vlasak
Respondents                    Michael R. Bracamontes
                               Ryan J. Vlasak

Attorneys for Defendants and   Attorney General of California
Appellants:                    Xavier Becerra

                               Danielle F. O’Bannon
                               Senior Assistant Attorney General

                               Jeffrey R. Vincent
                               Supervising Deputy Attorney General

                               Amy W. Lo
                               Deputy Attorney General




                                41
