Filed 3/13/15 Wedgeworth v. City of Newport Beach CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

SANDY WEDGEWORTH et al.,

     Plaintiffs and Appellants,                                     G048784

         v.                                                         (Super. Ct. No. 30-2011-00493787)

CITY OF NEWPORT BEACH et al.,                                       ORDER MODIFYING OPINION AND
                                                                    DENYING PETITION FOR
     Defendants and Respondents.                                    REHEARING; NO CHANGE IN
                                                                    JUDGMENT


                   It is ordered that the opinion filed herein on February 11, 2015, be modified
as follows:
                   1. On pages 6 through 7, delete the entire five paragraphs commencing
with the second full paragraph on page 6 beginning with the words “The evidence that
plaintiff,” and continuing to the last paragraph of section I of the Discussion, and replace
them with the following paragraphs:
                   The evidence that plaintiffs claim they needed to oppose the motion for
summary judgment was certain documents from the City’s investigation file of the
incident. The trial court determined that these documents were privileged and therefore
were not required to be produced by defendants to plaintiffs. If the evidence was not
discoverable, the motion to continue the hearing in order to obtain the evidence was
properly denied. We therefore turn to the issue of the propriety of the court’s discovery
order.
              In his third report, the discovery referee recommended that two documents
from the investigation file need not be produced because they were privileged. The court
approved the referee’s recommendation, and made the recommendation and report the
order of the court.
              In his fifth report, the discovery referee recommended that the two
privileged documents be produced by defendants because defendants had waived the
attorney-client privilege that might have been applicable by (1) asserting in the 14th
affirmative defense to the first amended complaint that the City had fully investigated the
incident, and (2) the City attorney’s statement, as quoted in a local newspaper, ante. The
trial court sustained defendants’ objections to the fifth report: “Defendant City’s 14th
affirmative defense is not an affirmative defense. A showing that Defendant City
properly investigated the incident would not defeat Wedgeworth Plaintiffs’ claims, nor
would a showing that Defendant City concluded that the officers acted properly after its
investigation. As such, the so-called affirmative defense is immaterial and irrelevant. [¶]
The immaterial and irrelevant matter placed in Defendants’ answer should not serve [as]
a waiver of attorney client or work product privilege. Nor should the statement made by
[the City attorney] serve as a waiver of privilege. The statement did not disclose
anything of note.”
              The trial court did not abuse its discretion in determining the attorney-client
privilege as to the two documents withheld from the investigation file had not been
waived by the assertion of the 14th affirmative defense, or by the City attorney’s
statement to the press. First, defendants waived the 14th affirmative defense. Second,

                                             2
the court correctly found that the propriety of the postsuicide investigation was not an
affirmative defense to plaintiffs’ claims against defendants. Finally, the court correctly
found that neither the assertion of a proper investigation as an affirmative defense, nor a
statement by the City attorney that the investigation exonerated defendants, waived any
privilege or protection that applied to documents from the investigation file. Defendants
established that they produced all documents from the investigation file other than those
withheld on the grounds of privilege.
              Because the evidence that plaintiffs claimed they needed to oppose the
motion for summary judgment was privileged, the trial court did not err in denying the
request to continue the hearing on the motion for summary judgment to enable plaintiffs
to obtain those documents.
              There is no change in the judgment.
              The petition for rehearing is DENIED.




                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                             3
Filed 2/11/15 Wedgeworth v. City of Newport Beach CA4/3 (unmodified version)




                      NOT TO BE PUBLISHED IN 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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


SANDY WEDGEWORTH et al.,

     Plaintiffs and Appellants,                                        G048784

         v.                                                            (Super. Ct. No. 30-2011-00493787)

CITY OF NEWPORT BEACH et al.,                                          OPINION

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County,
William M. Monroe, Judge. Affirmed.
                   Law Offices of Andrew A. Smits and Andrew A. Smits for Plaintiffs and
Appellants.
                   Ferguson, Praet & Sherman, Peter J. Ferguson, Allen Christiansen; Pollak,
Vida & Fisher and Daniel P. Barer for Defendants and Respondents.


                                             *               *               *
                                       INTRODUCTION
              William Robert Wedgeworth (William) committed suicide while in the
custody of the Newport Beach Police Department. William’s wife, Sandy Wedgeworth
(Sandy), and William’s three surviving children (collectively, plaintiffs), sued the City of
Newport Beach (the City) and several individual police officers (collectively, defendants)
for negligence, wrongful death, and failure to obtain medical care for a prisoner. The
trial court granted summary adjudication on two causes of action, and entered judgment
on the pleadings on a third cause of action, in favor of defendants and against plaintiffs.
              We affirm. Defendants established by admissible evidence that, on this
record and in view of the applicable provisions of the Government Code, no duty existed
to summon immediate medical care for William to prevent him from committing suicide.
Plaintiffs did not raise a triable issue of material fact in opposition to the motion for
summary adjudication. The trial court correctly granted the motion for summary
adjudication, and the motion for judgment on the pleadings without leave to amend.


                    STATEMENT OF FACTS AND PROCEDURAL HISTORY
              On July 31, 2010, William was agitated, yelling, sweating profusely, and
red in the face. He was forcing Sandy’s hand into a fist and hitting himself in the face
with her fist. Sandy called 911 to obtain medical care for William; she described him as
“having another one of his crazy episodes.”
              Sandy reported William’s behavior and a prior Welfare and Institutions
Code section 5150 commitment to the 911 operator, and the police dispatchers provided
the information by broadcast. Officers Matthew Wood, Sam Sa, and Spencer Arnold
responded to William and Sandy’s house. Officer Sa met with Sandy; Sandy advised
Officer Sa of William’s history of mental illness, prior section 5150 hold, and need for
medication. Sergeant Arnold suspected William was under the influence of drugs.



                                               2
               The officers arrested William for domestic violence. Officer Jonathan
Sunshine transported William to the jail in the basement of the police station. The
arresting officers did not tell Officer Sunshine about their observations of William, the
information regarding his prior Welfare and Institutions Code section 5150 hold, or his
other contacts with the police.
               When Officer Sunshine delivered William to the City’s police department
jail, he told the custody officers, Gerald Faludi and Diane Harris, that William had said
his hands and feet were deadly weapons, and that William was a “5149” or “5149 and a
half,” meaning someone who appears mentally ill.
               Officer Faludi took custody of William, inventoried his personal property,
and prepared the booking paperwork. Officer Daran Kanbara performed a cursory
medical screening of William. Officer Harris placed bed sheets in William’s cell, and
locked William in the cell about 6:00 p.m. Officer Harris did not place William in a
safety cell, which is used for inmates who might be a danger to themselves. William was
the only arrestee in the jail at that time.
               The custody officers performed welfare checks on William once per hour
while he was in his cell. William was found dead in his cell at approximately 10:00 p.m.,
having hung himself with his bed sheets.
               A complaint was filed against the City and the officers involved in
William’s arrest and detention, seeking damages for wrongful death (first cause of
action), negligence (second cause of action), and failure to obtain medical care for a
prisoner (third cause of action).
               Defendants filed a motion for summary judgment or, in the alternative,
summary adjudication. The trial court granted the motion for summary adjudication as to
the first and third causes of action, and treated the motion for summary adjudication of
the second cause of action as a motion for judgment on the pleadings, which was granted
without leave to amend. Judgment was entered, and plaintiffs timely appealed.

                                              3
                                        DISCUSSION
                                             I.
                                   MOTION TO CONTINUE
              In their opposition to the motion for summary judgment, plaintiffs argued
the trial court should deny or continue the hearing on the motion to enable plaintiffs to
obtain essential evidence that might exist but could not then be presented. The trial court
denied the request.
              “To mitigate summary judgment’s harshness, the statute’s drafters included
a provision making continuances—which are normally a matter within the broad
discretion of trial courts—virtually mandated ‘“upon a good faith showing by affidavit
that a continuance is needed to obtain facts essential to justify opposition to the motion.”
[Citation.]’ [Citation.]” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) If
the declaration or affidavit does not establish the need for a mandatory continuance, the
trial court must exercise its discretion to determine whether good cause for a continuance
has been shown. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715-716.)
              Plaintiffs’ counsel’s declaration supporting the request for a continuance of
the summary judgment motion hearing reads, in relevant part, as follows:
              “32. I am informed and believe that there is a likelihood that controverting
evidence may exist and is essential to opposing Defendants’ motion for summary
judgment or summary adjudication. There apparently exists an investigation file
maintained by the Defendants that may include essential evidence regarding the
following: Defendants’ knowledge of Mr. Wedgeworth’s mental illness; Defendants’
willful, reckless or negligent disregard for Mr. Wedgeworth’s health while he was in their
care and custody; Defendants’ failure to follow their own policies and procedures when
detaining Mr. Wedgeworth, among other things. Defendants’ investigation file is in issue



                                              4
in this action. Defendants have answered the [first amended complaint] by including a
Fourteenth Affirmative Defense that provides as follows:
              “‘These answering Defendants allege that this incident was properly
investigated and that the acts of all Defendants were in accordance with proper policies
and all legal standards (emphasis added).’
              “Defendants’ Answer to [the] First Amended Complaint and Affirmative
Defenses is dated November 28, 2012. In addition, Defendants have made
representations to the public that they have conducted a thorough investigation into
Mr. Wedgeworth’s death and their investigation shows that . . . there was no wrong-doing
on their part. At least one such public declaration appeared in the local Daily Pilot
newspaper dated January 27, 2011. Defendant’s City Attorney stated the following:
              “‘ . . . This is a sad and tragic loss, said Newport Beach City Atty. David
Hunt. “We take it very seriously, and we’ve done a thorough investigation into the
circumstances underlying it. We concluded there was nothing we could’ve done to
prevent it. The jail is safe, and our officers did their job correctly.” (emphasis added)’
              “33. Having made these representations to the Court, Plaintiffs and the
general public, Defendants refuse to produce their investigation file to Plaintiffs.
Plaintiffs propounded a document demand and brought a motion to compel production of
the investigation file on December 13, 2012. On January 28, 2013, the Discovery
Referee recommended granting Plaintiffs’ motion. However, Defendants still refuse to
produce their investigation file. In fact, Defendants have challenged the Referee’s Fifth
Recommendation to grant Plaintiffs’ motion to compel. Defendants brought an ex parte
application challenging the Referee’s Recommendation on Wednesday, January 30, 2013.
The Court continued the hearing on Defendants’ application to February 21, 2013, the
day of the hearing on this motion. Plaintiffs oppose Defendants’ application and
maintain they are entitled to the entire file, which is core evidence for trial regarding
Defendants’ Fourteenth Affirmative Defense.

                                              5
              “34. Plaintiffs await a ruling on this latest effort by Defendants to withhold
production of their investigation file. Assuming the Court adopts the Discovery
Referee’s Recommendations, it may be at least four to six weeks before Plaintiffs obtain
the file and obtain any follow up discovery, such as depositions concerning the file. A
continuance of the hearing on Defendants’ summary adjudication motion will allow
Plaintiffs an opportunity to complete this discovery regarding Defendants’ investigation
file and fourteenth affirmative defense. The discovery bears directly on the issues
presented in Defendants’ summary adjudication motion and will be used in opposing the
motion.” (Boldface omitted.)
              The evidence that plaintiffs claim they needed to oppose the motion for
summary judgment was the City’s investigation file of the incident. The trial court
determined that the investigation file was privileged and therefore was not required to be
produced by defendants to plaintiffs. If the evidence was not discoverable, the motion to
continue the hearing in order to obtain the evidence was properly denied. We therefore
turn to the issue of the propriety of the court’s discovery order.
              In his third report, the discovery referee recommended that the investigation
file not be produced because it was privileged. The court approved the referee’s
recommendation, and made the recommendation and report the order of the court.
              In his fifth report, the discovery referee recommended that the investigation
file be produced by defendants because they had waived the attorney-client privilege that
might have been applicable to the investigation file by (1) asserting in the 14th
affirmative defense to the first amended complaint that the City had fully investigated the
incident, and (2) the City attorney’s statement, as quoted in a local newspaper, ante. The
trial court sustained defendants’ objections to the fifth report: “Defendant City’s 14th
affirmative defense is not an affirmative defense. A showing that Defendant City
properly investigated the incident would not defeat Wedgeworth Plaintiffs’ claims, nor
would a showing that Defendant City concluded that the officers acted properly after its

                                              6
investigation. As such, the so-called affirmative defense is immaterial and irrelevant. [¶]
The immaterial and irrelevant matter placed in Defendants’ answer should not serve [as]
a waiver of attorney client or work product privilege. Nor should the statement made by
[the City attorney] serve as a waiver of privilege. The statement did not disclose
anything of note.”
               The trial court did not abuse its discretion in determining the attorney-client
privilege as to the investigation file had not been waived by the assertion of the 14th
affirmative defense, or by the City attorney’s statement to the press. First, defendants
waived the 14th affirmative defense. Second, the court correctly found that the propriety
of the postsuicide investigation was not an affirmative defense to plaintiffs’ claims
against defendants. Finally, the court correctly found that neither the assertion of a
proper investigation as an affirmative defense, or a statement by the City attorney that the
investigation exonerated defendants, waived any privilege or protection that applied to
the investigation file.
               Because the evidence that plaintiffs claimed they needed to oppose the
motion for summary judgment was privileged, the trial court did not err in denying the
request to continue the hearing on the motion for summary judgment to enable plaintiffs
to obtain the investigation file.


                                              II.
            MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION
                                              A.
                                     Standard of Review
               We review an order granting summary adjudication de novo. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum
(2002) 101 Cal.App.4th 26, 35.) A motion for summary adjudication is properly granted
if the moving papers establish there is no triable issue of material fact as to a cause of

                                              7
action, an affirmative defense, or the existence of or lack of a duty, and the moving party
is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “To prevail on the motion,
a defendant must demonstrate the plaintiff’s cause of action has no merit. This
requirement can be satisfied by showing either one or more elements of the cause of
action cannot be established or that a complete defense exists. [Citations.] If the
defendant meets this requirement, the burden shifts to the plaintiff to demonstrate a
triable issue of material fact exists. [Citations.]” (We Do Graphics, Inc. v. Mercury
Casualty Co. (2004) 124 Cal.App.4th 131, 135-136.)
              The court’s order granting judgment on the pleadings is also reviewed
de novo. (Sheppard v. North Orange County Regional Occupational Program (2010)
191 Cal.App.4th 289, 296-297.) Judgment on the pleadings should not be granted if there
is a reasonable possibility that a defect in the complaint can be cured by amendment.
(Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118; La Jolla Village Homeowners’
Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1141.) The burden of proving a
reasonable possibility of amendment is on the plaintiff. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) We review the trial court’s decision to grant the motion for judgment
on the pleadings without leave to amend for abuse of discretion. (Bardin v.
DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1277.)


                                             B.
                                    Existence of a Duty
              All of plaintiffs’ causes of action—wrongful death, negligence, and
negligent violation of the duty to obtain medical care for a prisoner—sound in tort. The
first questions are therefore whether defendants owed a duty to plaintiffs and, if so, the
nature of that duty.



                                              8
               The Government Claims Act, Government Code section 810 et seq., limits
the instances for which a public entity may be held liable for injury caused by it or by one
of its employees. (All further statutory references are to the Government Code, unless
otherwise specified.) Specifically, the City is immune from any lawsuits alleging injury
to a prisoner, unless the facts of the case fall within certain specified exceptions:
“(a) Notwithstanding any other provision of this part, except as provided in this section
and in Section[] . . . 845.6 . . . , a public entity is not liable for: [¶] . . . [¶] (2) An injury
to any prisoner. [¶] . . . [¶] (d) Nothing in this section exonerates a public employee from
liability for injury proximately caused by his negligent or wrongful act or omission.”
(§ 844.6, subds. (a), (d).) As used in section 844.6, “injury” includes death. (Lowman v.
County of Los Angeles (1982) 127 Cal.App.3d 613, 615-616.)
               The principal focus of each of plaintiffs’ negligence-based causes of action
is defendants’ failure to summon medical care for William. Section 845.6 provides
immunity to both the public entity and its employees for “injury proximately caused by
the failure of the employee to furnish or obtain medical care for a prisoner in his
custody,” unless the public 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.” (§ 845.6.)
               “Section 845.6 is very narrowly written to authorize a cause of action
against a public entity for its employees’ failure to summon immediate medical care only,
not for certain employees’ malpractice in providing that care. . . . Thus, section 845.6
creates out of the general immunity a limited cause of action against a public entity for its
employees’ failure to summon immediate medical care only. [Citation.]” (Castaneda v.
Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1070.)
               “Liability under section 845.6 is limited to serious and obvious medical
conditions requiring immediate care. [Citations.]” (Watson v. State of California (1993)
21 Cal.App.4th 836, 841; see Lucas v. City of Long Beach (1976) 60 Cal.App.3d 341,

                                                  9
349-350 [prisoner who exhibited symptoms of intoxication during booking process did
not require immediate medical care, so public entity was not liable for prisoner’s suicide
in jail cell].)
                  Whether a public employee knows of a prisoner’s need for immediate
medical care and whether the employee’s actions in summoning or failing to summon
medical care were reasonable are generally factual questions for a jury. (Castaneda v.
Department of Corrections & Rehabilitation, supra, 212 Cal.App.4th at p. 1073; Zeilman
v. County of Kern (1985) 168 Cal.App.3d 1174, 1184-1187 [triable issue of material fact
existed regarding county’s liability under section 845.6, so summary judgment reversed];
Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 317 [error to sustain
demurrer on section 845.6 claim]; Hart v. County of Orange (1967) 254 Cal.App.2d 302,
307-309 [affirming jury verdict in favor of heirs in wrongful death action because
substantial evidence supported jury’s finding that county was not immune from
liability].) We therefore consider whether defendants established, as a matter of law, that
plaintiffs could not prove this element of the claim.
                  Defendants offered in evidence the declarations of all the officers involved
in arresting, transporting, and jailing William on July 31, 2010. Each of those declarants
attested that he or she did not know or have reason to know William was in need of
medical care, much less immediate medical care, at any time that day, and did not know
or have reason to know of any suicidal ideation on William’s part. The intake screening
form completed by Officer Kanbara noted that William responded in the negative when
asked whether he had ever tried to harm himself or take his own life, was currently
thinking of harming himself, was receiving psychological treatment, or had any medical
problems the police needed to know about. Officer Kanbara’s declaration stated that
William did not appear upset during the intake screening, and was cooperative in
answering all the questions.



                                                10
              Did plaintiffs offer admissible evidence creating a triable issue of material
fact? Plaintiffs’ conclusory responses to defendants’ separate statements of disputed
material facts read, in relevant part, “[t]here were indications that Mr. Wedgeworth was
suicidal or had suicidal tendencies while in the presence of Def[endants] Arnold, Wood,
Sa or Sunshine prior to being transported to the jail on July 31, 2010. Def[endant]
Sunshine described Mr. Wedgeworth as a ‘5149.’ Def[endants] observed
Mr. Wedgeworth’s mental illness behaviors and were informed of it by NBPD
dispatchers and Mrs. Wedgeworth. Def[endants] had records of Mr. Wedgeworth’s
history of prior contacts with NBPD involving mental illness, a prior 5150 committal
[sic], suicide attempts and ideations.” Plaintiffs offered the following evidence in
disputing defendants’ separate statements:
              (1) Transcriptions of dispatch calls regarding the incident at Sandy and
William’s home on July 31, 2010, in which: (a) Sandy informs the 911 operator that
William was “having another one of his crazy episodes,” had “been 5150’d before,” had a
“borderline personality disorder,” and was “just crazy”; (b) the police dispatcher informs
the officers the 911 caller’s husband was “acting strangely, has some sort of disorder”;
(c) the police dispatcher tells the fire department a female called to report “her husband is
acting strangely,” and “bipolar behavior and all there previously”; (d) the police
dispatcher advises responding officers, “William has priors for 245, 243, and 415 as well
and a CII per loc info . . . . Bipolar behavior”; and (e) the police dispatcher advises the
responding officers that in a previous call, William had told the officers his hands and
feet were deadly weapons.
              (2) An arrest report prepared by Officer Wood, reading in relevant part as
follows: “The male seemed extremely agitated. He had a very red face and was sweating
profusely. He was difficult to talk to because he continued to yell about his children and
how his wife didn’t get the air fixed in her car. . . . [¶] . . . When Sgt. Arnold began to
walk inside the residence to check on Officer Sa, Wedgeworth became increasingly

                                              11
agitated and asked him not to go into his house. He began yelling for his kids to come
outside. He yelled that he would have to move out of the neighborhood and sell his
house. He yelled that his children were being traumatized because the police were in his
house. Sgt. Arnold informed Wedgeworth that he was going inside to check on the other
Officer. I had to redirect Wedgeworth’s attention to me in order to calm him down.
When Sgt. Arnold returned about 1 minute later, Wedgeworth made the statement, ‘My
hands and feet are lethal weapons. I was trained to kill with one punch. One time, my
wife was making me angry and I punched the bed post and broke it. I told her that is
what would happen to a man if I punched him.’ [¶] . . . [¶] . . . I asked him if he was ill or
injured. He stated he was not. I asked him if he had any psychological issues for which
he took medications. He told me he was supposed to be taking medications, but was not.
I asked him what medication he was supposed to take and he did not answer me. [¶] . . .
[¶] . . . He also stated that the camera would not photograph his real injuries. Sgt. Arnold
asked him what he meant and he stated he had emotional injuries.”
              (3) A report prepared by Officer Faludi reading, in relevant part:
“Wedgeworth brought into NBPD Jail by Ofc. Sunshine on 7/31/2010 . . . . At that time,
Ofc. Sunshine mentioned to me that Wedgeworth was ‘5149’ and that he had stated his
hands and feet are deadly weapons and they could kill someone in one second. I relayed
this information to Ofcs. Harris and Kanbara as a matter of officer safety. . . . My contact
with him lasted no more than 15 seconds and he did not say anything to me at that time.
I did not notice anything unusual about Wedgeworth’s demeanor.”
              (4) A records check form prepared when William was booked at the City’s
jail that showed he was committed under Welfare and Institutions Code section 5150 in
2009, and had been arrested for violating Penal Code section 245 (assault with a deadly
weapon) in 2003.




                                             12
              (5) A coroner’s report, noting, in relevant part, that the coroner was advised
by police personnel that William “had a medical history of hypertension, bipolar disorder,
explosive anger disorder, and multiple suicidal ideations with previous 5150 contacts.”
              (6) The police department’s policy regarding prisoner suicide prevention,
which reads: “Any prisoner displaying suicidal behavior or deemed a suicide risk will be
transported to Orange County Jail . . . or a Psychiatric Assessment Center
IMMEDIATELY. [¶] . . . At the time of receiving, the Custody Officer on duty should
be alert to any symptoms that may indicate that a prisoner is a suicide risk. These
symptoms include depression, refusal to communicate, verbally threatening to kill or hurt
himself/herself, or any unusual behavior that may indicate that the prisoner may harm
himself/herself while in custody. [¶] . . . The Custody Officer should notify the Watch
Commander at intake if he/she feels the prisoner might be a suicide risk. The Watch
Commander will arrange the transfer of the prisoner to Orange County Jail . . . or a
Psychiatric Assessment Center. [¶] . . . If it becomes necessary to confine the prisoner
while awaiting transportation and the prisoner is not combative or exhibiting bizarre
behavior, the prisoner should be housed in a cell with another prisoner. Otherwise, the
prisoner should be housed in the Safety Cell with monitor until transportation to one of
the facilities. [¶] . . . The Custody Officer should make an entry on the prisoner’s
‘Pre-Booking Medical Screening Form’ and ‘Custody and Identification Report’ (Post-It
Note) indicating that the prisoner is a ‘suicide risk.’ The Custody Officer will make a
physical check on the prisoner at least every fifteen (15) minutes or more and record it on
the ‘Inspection Log/Safety Cell Log.’” (Newport Beach Police Department, Jail
Operations Manual (Sept. 2011) Medical Treatment Bookings, § 405.)
              None of the foregoing evidence offered by plaintiffs showed William was
suicidal or had suicidal tendencies or ideations, or that defendants had any more
information about William’s prior mental state than that, at some point in the past, he had
been subjected to a Welfare and Institutions Code section 5150 hold. Plaintiffs also filed

                                             13
a separate statement of additional undisputed material facts in opposition to the motion
for summary judgment. That separate statement, however, did not cite any new or
different evidence than referenced ante, that would be relevant to the issue whether any
of defendants knew or had reason to know William was in need of immediate medical
care.
              Having reviewed the appellate record de novo, we conclude plaintiffs failed
to raise a triable issue of material fact regarding whether defendants knew or had reason
to know William was in need of immediate medical care. While the evidence clearly
shows William was at least emotionally disturbed and possibly suffering from a mental
illness, this does not mean he was necessarily suicidal or in need of immediate medical or
psychological care.
              Plaintiffs also alleged in the first amended complaint that defendants were
negligent by failing to make regular welfare checks on William in his jail cell.
Defendants offered admissible evidence that they made hourly welfare checks as required
by California Code of Regulations, title 15, section 1027,1 which plaintiffs do not dispute.
              Plaintiffs contend that a duty to William arose on the part of defendants
pursuant to sections 1052, 1055, and 1209 of title 15 of the California Code of
Regulations.2 These sections do not apply because plaintiffs did not offer any admissible

              1
                 California Code of Regulations, title 15, section 1027 provides, in
relevant part: “A sufficient number of personnel shall be employed in each local
detention facility to conduct at least hourly safety checks of inmates through direct visual
observation of all inmates and to ensure the implementation and operation of the
programs and activities required by these regulations. There shall be a written plan that
includes the documentation of routine safety checks.”
              2
                 California Code of Regulations, title 15, section 1052 provides: “The
facility administrator, in cooperation with the responsible physician, shall develop written
policies and procedures to identify and evaluate all mentally disordered inmates. If an
evaluation from medical or mental health staff is not readily available, an inmate shall be
considered mentally disordered for the purpose of this section if he or she appears to be a
danger to himself/herself or others or if he/she appears gravely disabled. An evaluation
from medical or mental health staff shall be secured within 24 hours of identification or

                                            14
evidence that William appeared to be a danger to himself or others or that he displayed
behavior revealing an intent to cause physical harm to himself or others. The evidence
that William told the police officers his hands and feet were deadly weapons does not
show he had an intent to cause himself or others physical harm. Given the number of
police officers who interacted with William on July 31, 2010, if he had any intent to use

at the next daily sick call, whichever is earliest. Segregation may be used if necessary to
protect the safety of the inmate or others.” (Italics added.)
                  California Code of Regulations, title 15, section 1055 provides: “The
safety cell described in Title 24, Part 2, Section 1231.2.5, shall be used to hold only those
inmates who display behavior which results in the destruction of property or reveals an
intent to cause physical harm to self or others. The facility administrator, in cooperation
with the responsible physician, shall develop written policies and procedures governing
safety cell use and may delegate authority to place an inmate in a safety cell to a
physician. [¶] In no case shall the safety cell be used for punishment or as a substitute for
treatment. [¶] An inmate shall be placed in a safety cell only with the approval of the
facility manager, the facility watch commander, or the designated physician; continued
retention shall be reviewed a minimum of every eight hours. A medical assessment shall
be completed within a maximum of 12 hours of placement in the safety cell or at the next
daily sick call, whichever is earliest. The inmate shall be medically cleared for continued
retention every 24 hours thereafter. A mental health opinion on placement and retention
shall be secured within 24 hours of placement. Direct visual observation shall be
conducted at least twice every thirty minutes. Such observation shall be documented. [¶]
Procedures shall be established to assure administration of necessary nutrition and fluids.
Inmates shall be allowed to retain sufficient clothing, or be provided with a suitably
designed ‘safety garment,’ to provide for their personal privacy unless specific
identifiable risks to the inmate’s safety or to the security of the facility are documented.”
(Italics added.)
                  California Code of Regulations, title 15, section 1209, subdivision (b)
provides: “Unless the county has elected to implement the provisions of Penal Code
Section 1369.1, a mentally disordered inmate who appears to be a danger to himself or
others, or to be gravely disabled, shall be transferred for further evaluation to a
designated Lanterman Petris Short treatment facility designated by the county and
approved by the State Department of Mental Health for diagnosis and treatment of such
apparent mental disorder pursuant to Penal Code section 4011.6 or 4011.8 unless the jail
contains a designated treatment facility. Prior to the transfer, the inmate may be
evaluated by licensed health personnel to determine if treatment can be initiated at the
correctional facility. Licensed health personnel may perform an onsite assessment to
determine if the inmate meets the criteria for admission to an inpatient facility, or if
treatment can be initiated in the correctional facility.” (Italics added.)

                                             15
his hands and feet as deadly weapons, he had plenty of opportunities to do so. Even if
those “threats” were real, not every threat of violence against an arresting police officer
can justify treating the prisoner as mentally disturbed.
              Plaintiffs also contend that the police department’s policy manuals, which
require that welfare checks on mentally disordered detainees be performed twice every
30 minutes, create a duty that defendants breached. The police department’s policy
manuals cannot create a duty of care because there is no evidence they were passed by
the Legislature or adopted pursuant to the Administrative Procedure Act (§ 11340 et
seq.). (Evid. Code, § 669.1; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703,
720-721; Strong v. State of California (2011) 201 Cal.App.4th 1439, 1451-1452.)3
              At the hearing on the motion for summary judgment, when the court
announced it would treat the motion for summary adjudication of the second cause of
action as a motion for judgment on the pleadings, plaintiffs requested leave to amend the
first amended complaint: “Well, if the court is treating it as a motion for judgment on the
pleadings, then plaintiffs request leave to amend. And we certainly can do so showing all
the duties that are set forth in the policy manual and the breaches as set forth in our
abundance of evidence submitted to the court and cited in our plaintiffs’ separate
statement.” As explained ante, however, the police department’s policy manuals cannot
create a duty of care.
              The trial court did not abuse its discretion by denying the request for leave
to amend. The court did not err in granting the motion for summary adjudication of the
first and third causes of action.




              3
                 The policy manuals would be admissible to prove breach of an existing
duty, however. (Lugtu v. California Highway Patrol, supra, 26 Cal.4th at pp. 720-721;
Strong v. State of California, supra, 201 Cal.App.4th at pp. 1451-1452; Minch v.
Department of California Highway Patrol (2006) 140 Cal.App.4th 895, 908.)

                                             16
              Neither Giraldo v. Department of Corrections & Rehabilitation (2008) 168
Cal.App.4th 231 (Giraldo) nor Lum v. County of San Joaquin (E.D.Cal. 2010) 756
F.Supp.2d 1243, both cited by plaintiffs, requires a different result. In Giraldo, the
plaintiff prisoner, a transgender inmate who identified herself as female, was repeatedly
beaten and raped by her male cellmate, despite her complaints to prison officials.
(Giraldo, supra, at p. 237.) Among other claims, the plaintiff sued for negligence.
(Ibid.) The trial court sustained a demurrer to the negligence cause of action because
there was no special relationship between a prisoner and a jailer, and therefore no duty
arose. (Id. at pp. 237, 242.) The appellate court reversed the trial court’s order sustaining
the demurrer: “[T]here is a special relationship between jailer and prisoner which
imposes a duty of care on the jailer to the prisoner.” (Id. at pp. 252-253.) Giraldo did
not address the issue which is presented here—whether the immunity created by
section 845.6 prevents liability from defendants to plaintiffs under the circumstances of
this case. The demurrer in Giraldo had also raised the issue of the immunity of the
defendants (id. at p. 241), but the trial court apparently did not reach the issue, and the
appellate court did not address it. Moreover, Giraldo addressed only the propriety of
sustaining a demurrer based on the face of the plaintiff’s complaint, and did not test the
evidence supporting the plaintiff’s claims. Therefore, Giraldo is of limited use in our
review of the present case.
              In Lum v. County of San Joaquin, supra, 756 F.Supp.2d at page 1246, the
decedent was arrested and held in the San Joaquin County Jail. While the decedent was
in the jail, the police officers observed the decedent having hallucinations and suffering a
seizure. (Id. at pp. 1246-1247.) The defendant police officers released the decedent
about six hours after his arrest, without ever obtaining medical treatment or a medical or
psychological evaluation of him. (Id. at p. 1247.) Several days later, the decedent’s body
was found in the San Joaquin River; he had drowned. (Ibid.) The decedent’s parents
sued the county, the city, and the individual police officers for, among other things,

                                              17
wrongful death. (Id. at p. 1253.) The district court denied the defendants’ motion to
dismiss the wrongful death claim on the ground a special relationship existed between a
jailer and a prisoner. (Id. at pp. 1254-1255.) As with Giraldo, the motion considered
only whether the claim for relief could be dismissed as a matter of law, and did not
consider whether the undisputed material facts showed the plaintiffs could not establish
their claim. And, also like Giraldo, the district court in Lum did not consider the
immunity created by section 845.6.
              Further, the out-of-state cases cited by plaintiffs regarding a duty to prevent
prisoner suicides are not binding on this court, and are contrary to California statutory
and decisional law.


                                             C.
                                Judgment on the Pleadings
              The trial court treated the motion for summary adjudication of the second
cause of action as a motion for judgment on the pleadings, and granted it. The court
concluded that plaintiffs’ cause of action for negligence was the same as their cause of
action for wrongful death caused by negligence. The court also noted that to the extent
plaintiffs intended to assert the negligence cause of action as a survival action on
William’s behalf, they had failed to comply with the notice of claims procedures of Code
of Civil Procedure section 377.32.
              Plaintiffs argue that the trial court erred in granting the motion because
(1) the negligence cause of action was based on section 815.2, which makes public
entities vicariously liable for their employees’ negligence, and (2) plaintiffs, as William’s
wife and children, are in a class of persons who are the reasonably foreseeable victims of
defendants’ negligence. Plaintiffs fail to show how the lack of a duty under section 845.6
can be overcome, no matter who the plaintiffs are, or whether the public entity or its



                                             18
employees committed the allegedly negligent acts or omissions. The court did not err in
granting the motion for judgment on the pleadings of the second cause of action.
              Plaintiffs also argue that the trial court abused its discretion by failing to
grant them leave to amend their complaint. In the trial court, plaintiffs requested leave to
amend to allege the duties they claimed were created by the police department’s policy
manuals. As explained, ante, there is no evidence the manuals were passed by the
Legislature or adopted pursuant to the Administrative Procedure Act, and, therefore, they
cannot create a duty that would supersede the grant of immunity under section 845.6.
(Evid. Code, § 669.1; Lugtu v. California Highway Patrol, supra, 26 Cal.4th at
pp. 720-721; Strong v. State of California, supra, 201 Cal.App.4th at pp. 1451-1452.)
The trial court did not abuse its discretion in denying the request for leave to amend.


                                              D.
                                   Additional Arguments
              Plaintiffs argue the motion for summary judgment and/or summary
adjudication was procedurally defective because each defendant filed a separate
statement of undisputed material facts, rather than filing one single statement. Code of
Civil Procedure section 437c, subdivision (b)(1) does not preclude multiple parties from
filing their own separate statements, and any party joining another’s motion for summary
judgment must file his, her, or its own separate statement. (Frazee v. Seely (2002) 95
Cal.App.4th 627, 636.) The individual separate statements filed by each defendant did
not violate Code of Civil Procedure section 437c, subdivision (b)(1).
              Plaintiffs contend that the notice of the motion for summary judgment
and/or summary adjudication was defective because it failed to repeat each of the issues
on which summary adjudication was sought 12 separate times to address the 12 separate
statements of undisputed material facts. The notice addressed each cause of action and
each issue on which summary adjudication was sought, and was proper.

                                              19
              Plaintiffs also argue the summary judgment motion should have been
denied because it was based on the same arguments defendants raised in two earlier filed
demurrers. We reject outright any contention that a trial court’s order overruling a
demurrer bars a later summary judgment motion raising the same or a similar argument.


                                       DISPOSITION
              The judgment is affirmed. In the interests of justice, no party shall recover
costs on appeal.




                                                 FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                            20
