Filed 7/22/13 Young v. County of Tuolumne CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

DEBORAH YOUNG,
                                                                                           F065486
         Plaintiff and Appellant,
                                                                               (Super. Ct. No. CV56819)
                   v.

COUNTY OF TUOLUMNE,                                                                      OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Tuolumne County. Donald
Segerstrom, Judge.
         Abronson Law Offices, Louis S. Abronson and Shelby L. Clark, for Plaintiff and
Appellant.
         Anwyl Scoffield & Stepp, James T. Anwyl and Lynn A. Garcia, for Defendant and
Respondent.
                                                        -ooOoo-
         Plaintiff Deborah Young appeals from the judgment entered in favor of defendant
County of Tuolumne (County) after a demurrer to her third amended complaint (TAC)
was sustained without leave to amend. Young asserts the trial court erred in sustaining
the demurrer to her single cause of action for violation of 42 United States Code section
1983 (section 1983) because she adequately alleged the County acted with deliberate
indifference when she, as a criminal detainee, was issued clothing and shoes that were too
large for her, jail employees did not rectify the problem when she complained, and she
subsequently was injured when she fell. As we conclude Young has failed to show
prejudicial error, we affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On appeal from a judgment of dismissal entered after a demurrer is sustained
without leave to amend, we assume the truth of all facts properly pleaded in order to
determine whether a cause of action is stated. (Howard Jarvis Taxpayers Assn. v. City of
La Habra (2001) 25 Cal.4th 809, 814; Morillion v. Royal Packing Co. (2000) 22 Cal.4th
575, 579.) We do not, however, assume the truth of contentions, deductions or
conclusions of fact or law. (Moore v. Regents of University of California (1990) 51
Cal.3d 120, 125.) In accordance with these rules, we recite the facts as taken from the
TAC.
       On June 1, 2011, Young turned herself in to the County sheriff on a pending
criminal matter. When she was detained, she was issued an oversized uniform and a pair
of shoes that were approximately three sizes too big. She told “several individuals
working at the jail” she was having difficulty walking in the shoes, as they were too big.
She also complained about the shoes to jail staff and transport deputies at least four
additional times before June 6, 2011, but her complaints were ignored.
       On June 6, 2011, Young attended a hearing at the County courthouse “wearing the
oversize[d] uniform, oversize[d] shoes, handcuffs, and ankle shackles required by her
custodians.” Young told her “custodians” she was having difficulty walking in the shoes,
but her concerns were ignored. As jail guards led Young down the courthouse steps in a
line of prisoners with a guard at each end of the line, Young tripped and fell down
approximately eight steps, striking her head. Her skull was fractured and she sustained
numerous other injuries. Young fell because she was unable to successfully navigate the

                                             2.
steps in the oversized shoes and clothes while in shackles and handcuffs, all of which
hampered her and made it more difficult to keep her balance. The oversized shoes also
caused her to lose her footing and fall.
       Young‟s original complaint alleged a single cause of action for negligence against
the County. The County demurred on the grounds it could not be liable for a common
law cause of action and was immune from liability pursuant to state law. Instead of
opposing the demurrer, Young filed a first amended complaint which changed the theory
of liability to a violation of section 1983 and added as a defendant the “County of
Tuolumne Department of Correction.” The County demurred to the first amended
complaint, which the trial court sustained with leave to amend. Young filed a second
amended complaint, to which the County again demurred on the ground that she failed to
plead a viable claim for a violation of section 1983 against the County. The trial court
sustained the demurrer with leave to amend.
       Young then filed the TAC against the County and the “County of Tuolumne
Department of Correction.”1 She alleges that her complaints about the oversized clothes
and shoes were “adequately conveyed to make a reasonable person aware that walking in
the oversized shoes posed . . . a significant risk of losing her footing and falling, and that
wearing the oversized clothes hampered [Young]‟s movement.” She also alleges the
County had policies and customs of (1) “refusing to issue properly fitting shoes and
clothes to detainees of her size when requested to do so, even when informed that the
improperly fitting shoes pose a significant risk of falling and that the improperly fitting
clothes hamper the detainee‟s movement[,]” and (2) “requiring detainees and prisoners
to navigate [] stairs while wearing handcuffs and ankle shackles without regard to
whether the County has required such detainees and prisoners to also wear poorly fitting

       1According to the County, the identity of this entity is unknown, as the County
does not have any such department.



                                              3.
clothes and shoes, despite the obvious risk that such prisoners will fall on the stairs and
be severely injured.”
       In her single cause of action for violation of section 1983, Young alleges that, by
placing her in jeopardy of falling with conscious awareness of the risk of such a fall,
“Defendants,” acting in the performance of their official duties, acted with deliberate
indifference to both her “personal security rights, and a high risk of serious harm” to her,
and “deprived her of her rights, privileges, or immunities secured by the Fourteenth
Amendment to the United States Constitution, including but not limited to her personal
security rights, by placing her in physical jeopardy and depriving her of the means to
avoid harm.” She asserts she suffered multiple physical injuries as a direct and proximate
result of (1) “Defendants‟ reckless conduct tantamount to a desire to inflict harm” on her,
and (2) “Defendants‟ official policies and customs.” Finally, she alleges the “foregoing
conduct constituted cruel and unusual punishment and deprivation of due process” in
violation of her rights under the Fourteenth Amendment of the United States Constitution
and in violation of section 1983.
       The County demurred to the TAC both specially and generally on the grounds it
was uncertain and failed to state facts sufficient to constitute a cause of action under
section 1983. (Code Civ. Proc., §§ 430.10, subd. (e) & (f), 430.30, subd. (a).) The
County contended the TAC failed to state facts sufficient to constitute a cause of action
under section 1983 because Young failed to allege: (1) a viable deprivation of a federal
right, as the Eight Amendment prohibition against cruel and unusual punishment does not
apply to detainees and the issuance of “ill-fitting” clothing does not implicate personal
security rights; (2) facts suggesting the County adopted “any type of unconstitutional
policy” or a policy that is causally connected to her injuries; and (3) facts linking County
policy to the alleged misconduct of its employees. The County asserted the TAC was
uncertain as it contained conclusory allegations that were not supported by specific
factual allegations. The County asked the trial court to sustain the demurrer without

                                              4.
leave to amend because Young had been given four opportunities to state a claim against
the County, yet failed to do so, thereby establishing there was no reasonable possibility to
cure the complaint.
       In Young‟s written opposition to the demurrer, she asserted she stated a claim
under section 1983, as the complaint alleged: (1) a violation of specific federal rights,
namely her personal security rights and right not to be subject to cruel and unusual
punishment as a detainee under the Fourteenth Amendment, based on the issuance of
improperly fitting clothing and shoes, and the subsequent refusal to provide correct sized
clothing and shoes when the danger was made apparent; (2) unconstitutional policies and
customs regarding the issuance of clothing, and movement of handcuffed and shackled
detainees on stairs, in a manner likely to cause a fall; and (3) the link between the alleged
actions of the County‟s employees to the County‟s policies and customs. Young argued
the TAC was not subject to general or special demurrer, as the TAC‟s allegations
sufficiently enabled the County to reasonably determine the issues. Young requested
leave to amend the TAC should the trial court sustain the demurrer, as she claimed she
had shown a reasonable possibility the defect could be cured by amendment.
       The County filed a reply, in which it argued there is no authority to support
extending the right to personal security under the Fourteenth Amendment to the negligent
provision of ill-fitting clothing which creates a risk of falling. The County further argued
the policy allegedly violated was not unconstitutional and Young failed to allege facts
showing (1) that her treatment was not simply an isolated incident, (2) a causal
connection between the policy and her accident, or (3) that the procedure the County used
was so inadequate that the policymakers at the County reasonably could be said to be
deliberately indifferent to the need to adopt other policies.
       The trial court sustained the special and general demurrer to the TAC without
leave to amend. A judgment of dismissal was entered on June 13, 2012.



                                              5.
                                       DISCUSSION
       A general demurrer presents the same question to the appellate court as to the trial
court, namely, whether the plaintiff has alleged sufficient facts in the complaint to justify
relief on any legal theory. (Service by Medallion, Inc. v. Clorox Co. (1996)
44 Cal.App.4th 1807, 1811-1812.) The “complaint must be liberally construed to afford
plaintiff [his or] her day in court and render substantial justice between the parties.”
(Cooper v. National Railroad Passenger Corp. (1975) 45 Cal.App.3d 389, 393,
disapproved on other grounds in Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 401,
fn. 8.) A demurrer is properly granted when the pleadings fail to state facts sufficient to
constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Regardless of the
label attached to the cause of action, the court must examine the complaint‟s factual
allegations to determine whether they state a cause of action on any available legal
theory. (Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 560.)
It is an appellant‟s burden, however, to demonstrate the trial court sustained the demurrer
erroneously. (Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1829-1830.)
       When a demurrer has been properly sustained and leave to amend the pleading has
been denied, “we decide whether there is a reasonable possibility that the defect can be
cured by amendment: if it can be, the trial court has abused its discretion and we reverse;
if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of
proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank).)
       In her opening brief, Young asserts she alleged sufficient facts to overcome the
County‟s demurrer. Specifically, she contends the TAC alleges the deprivation of a
specific federal right, namely a pretrial detainee‟s right to personal security, and that the
County acted with deliberate indifference when, while under the “Defendants‟ exclusive
control,” she was placed in “significant physical jeopardy,” about which she repeatedly
warned, yet “they refused to respond to her warnings,” which led to her injuries. She

                                              6.
asserts her case is comparable to Redman v. County of San Diego (9th Cir. 1991) 942
F.2d 1435 (Redman), in which the Ninth Circuit Court of Appeals reversed in part the
district court‟s directed verdict on a pretrial detainee‟s section 1983 claim against jail
officials and the county for violations of his personal security interests when he was
sexually assaulted by his cellmate and other inmates while in the county jail. (Redman,
supra, 942 F.2d at pp. 1437-1439.) The appellate court held that to establish a violation
of their personal security interests, pretrial detainees must establish the jail officials acted
with deliberate indifference. (Id. at p. 1443.)
       Whatever merit there may be in her argument, we need not address it. This is
because, even if she is correct that the TAC complaint alleges sufficient facts to show
“deliberate indifference on the part of Defendants,” we could not reverse the trial court‟s
ruling because that decision may be supported by the other ground the County relied
upon in its demurrer and as to which Young has raised no cognizable issue on this appeal.
       In order to secure the reversal of an adverse judgment, it is not enough for the
appellant to establish that the trial court committed some error during the course of the
proceedings under review. The appellant must also affirmatively demonstrate that the
error complained of caused injury and was therefore prejudicial. (Cal. Const., art. VI,
§ 13; Code Civ. Proc., § 475; People v. Watson (1956) 46 Cal.2d 818, 835-836 (Watson);
Tupman v. Haberkern (1929) 208 Cal. 256, 263 (Tupman); Waller v. TJD, Inc. (1993) 12
Cal.App.4th 830, 833 (Waller); Robbins v. Los Angeles Unified School Dist. (1992) 3
Cal.App.4th 313, 318.) In other words, prejudice is not presumed from error, and the
reviewing court is obliged to declare “whether the error found to exist has resulted in a
miscarriage of justice, and not to reverse the judgment unless such error be prejudicial.”
(Tupman, supra, at p. 263.) Prejudice is established when the reviewing court “is of the
„opinion‟ that it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (Watson, supra, at p. 836; Waller,



                                               7.
supra, at p. 833.) This principle has been a part of the law of California since 1914.
(9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 408, pp. 459-460.)
       Here, in addition to contending the demurrer should be sustained based on
Young‟s failure to allege the deprivation of a viable federal constitutional right, the
County raised another ground for sustaining the demurrer, namely that Young failed to
allege sufficient facts to impose liability on the County for the jail employees‟ acts.2
This ground constituted an independent potential basis for sustaining the demurrer and, if
determined to be a legitimate ground, would validate the trial court‟s ultimate
determination that the demurrer should be sustained. There is nothing in Young‟s briefs
which raises any appellate issue with respect to this alternate ground; Young makes no
contention the ground was legally unsound or otherwise would not have supported,
standing alone, a ruling in the County‟s favor.
       We will not speculate about the merits of this other ground the County raised in its
demurrer. It is Young‟s responsibility on appeal from a judgment entered after a
demurrer has been sustained to affirmatively demonstrate that the judgment must be
reversed, including to show that the purported error was prejudicial. (See Magan v.

       2 While the County cannot be held liable under the theory of respondeat superior
for injuries caused by its employees or agents, it may be held responsible for harm caused
by its employees carrying out a local government custom or policy. (Monell v. New York
City Dept. of Social Services (1978) 436 U.S. 658, 690, 694; accord, Kentucky v. Graham
(1985) 473 U.S. 159, 165; see also County of Los Angeles v. Superior Court (1998) 68
Cal.App.4th 1166, 1171.) “A plaintiff may demonstrate liability by proving that a
[county] employee committed the alleged violations pursuant to the [county]‟s official
policy or custom. [Citations.] Alternatively, a plaintiff may show that, rather than being
the product of general official policy, on a given occasion the conduct was the result of „a
deliberate choice . . . made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in question.‟
[Citations.] Finally, a plaintiff may show that an official policymaker either delegated
policymaking authority to a subordinate or ratified a subordinate‟s decision, approving
the „decision and the basis for it.‟” (Fuller v. City of Oakland, Cal. (9th Cir. 1995)
47 F.3d 1522, 1534; accord, Trevino v. Gates (9th Cir. 1996) 99 F.3d 911, 918.)



                                              8.
County of Kings (2002) 105 Cal.App.4th 468, 477, fn. 4; Stanson v. Brown (1975)
49 Cal.App.3d 812, 814.) We will not scour the record for the parties‟ benefit in order to
find and then articulate arguments they did not expressly present. Young‟s failure to
incorporate into her brief any argument or authorities that establish the lack of merit of
the other ground for the County‟s demurrer means she has not demonstrated she was
prejudiced by the error she claims the trial court made. Put differently, even if the trial
court was wrong in making the finding she challenges, she has not affirmatively shown
that the other grounds for the demurrer do not require the same result. (See Davey v.
Southern Pacific Co. (1897) 116 Cal. 325, 329; Tupman, supra, 208 Cal. at p. 263; see
also Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.)
       Young also asserts the trial court abused its discretion by refusing her leave to
amend. Young, however, makes no attempt to explain how the TAC could be amended
to cure any defect and therefore fails to meet her appellate burden. (Blank, supra, 39
Cal.3d at p. 318 [burden is on appellant to show reasonable possibility of curing defect].)
                                      DISPOSITION
       The trial court‟s judgment is affirmed. Costs on appeal are awarded to
Respondent.

                                                                  _____________________
                                                                        Gomes, Acting P.J.
WE CONCUR:


 _____________________
Poochigian, J.


 _____________________
Detjen, J.




                                              9.
