Filed 5/13/13 Durio v. Cal. Dept. of Corrections CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



SHALAY DURIO,                                                       D061914

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. ECU06360)

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B.

Jones, Judge. Affirmed.

         Barrera & Associates and Patricio T.D. Barrera for Plaintiff and Appellant.

         Kamala D. Harris, Attorney General, Jonathan L. Wolff, Senior Assistant Attorney

General, Vickie P. Whitney and Christopher H. Findley, Deputy Attorneys General, for

Defendant and Respondent.
                                             I.

                                    INTRODUCTION

       Christopher Durio's (Christopher) daughter, Shalay Durio (Shalay),1 filed a

second amended complaint containing claims for wrongful death, negligence, and battery

against the California Department of Corrections and Rehabilitation (the Department). In

the second amended complaint, Shalay alleged that in June 2010, the Department's

correctional officers attempted to end an altercation between Christopher and a cellmate

by negligently spraying pepper spray in Christopher's face. Shalay further alleged that

immediately following the incident, the Department's officers knew or had reason to

know that Christopher was in need of immediate medical care, that they failed to

summon such care, and that Christopher died as a result. Shalay claimed that the

Department was liable for failing to summon medical care pursuant to Government Code

section 845.6.2

       The Department filed a motion for summary judgment in which it maintained that

undisputed evidence established that it was immune from all of Shalay's claims as a

matter of law. The trial court granted the Department's motion and entered judgment in




1       We refer to the decedent and the plaintiff by their first names for purposes of
clarity.

2     Unless otherwise specified, all subsequent statutory references are to the
Government Code.
      As discussed in greater detail in part III, post, section 845.6 provides that the
Department may be liable for failing to summon medical care under certain specified
circumstances.
                                              2
its favor. Shalay appeals, claiming that the trial court erred in granting summary

judgment. We affirm.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     The operative complaint

       In September 2011, Shalay filed a second amended complaint. The second

amended complaint contained the following allegations:

          "On or about June 15, 2010, Defendants,[3] by and through their
          correctional officers acting under defendants' supervision, attempted
          to end an altercation involving [Christopher] and a cellmate.
          Defendants by and through their correctional officers acting under
          defendants' supervision, ended the altercation by negligently
          applying pepper spray to [Christopher's] face. [Christopher]
          suffered from 'shortness of breath' and/or asthma and should not
          have been pepper sprayed. . . . [¶] . . . Immediately following the
          pepper spray incident, defendants' agents and employees knew or
          had reason to know that Christopher . . . was in need of immediate
          medical care. Defendants failed to take reasonable action to
          summon medical care. [¶] . . . On June 15, 2010, after being pepper
          sprayed and complaining of difficulty breathing, Christopher . . .
          passed away at defendants' facility and was pronounced dead.
          Defendants' agents and employees were negligent and responsible
          for [Christopher's] death under [section] 845.6 by their delays in
          administering medical care to [Christopher], failing to summon
          immediate and proper medical care, and administering improper care
          to [Christopher]."

       Shalay incorporated these allegations in claims for wrongful death, negligence,

and battery. In her prayer for relief, Shalay sought money damages.


3      Although not contained in the record, it is undisputed that in an earlier complaint
Shalay had named the warden of the prison at which Christopher was incarcerated as a
defendant. It appears that the warden filed a demurrer and was dismissed from the
action. The warden is not a party to this appeal.
                                             3
B.     The Department's motion for summary judgment

       The Department filed a motion for summary judgment. In its motion, the

Department argued that the undisputed evidence established the following facts relevant

to Shalay's claims.

       The Department is a public entity and Christopher was a prisoner in a correctional

facility managed by the Department. Shortly after 2:30 a.m. on the morning of June 15,

2010, a correctional officer, Officer F. Alvarez, applied a spray containing oleoresin

capsicum (O.C. spray) into Christopher's cell to break up a fight between Christopher and

his cellmate. At 2:40 a.m., after securing Christopher, a sergeant summoned prison

medical staff to assist in the decontamination of Christopher from the O.C. spray. An

officer led Christopher to a nearby shower to decontaminate. Christopher stood in the

shower for a few minutes, and then lay down in the shower.

       At 2:45 a.m., Christopher informed a correctional officer that he was having

"difficulty breathing" and was experiencing "shortness of breath." Also at approximately

2:45 a.m., a registered nurse, C. Ramirez, arrived at the scene. Nurse Ramirez requested

that an officer move Christopher from the shower so that Nurse Ramirez could examine

him. As Christopher was moving out of the shower, he complained of difficulty

breathing, but was able to walk under his own power. During the initial portion of Nurse

Ramirez's examination, Christopher appeared to be breathing normally and had a pulse

within the normal range.

        At 3:11 a.m., Christopher stopped breathing and became unresponsive. At 3:11

a.m., Nurse Ramirez started performing cardiopulmonary resuscitation (CPR) on him,

                                             4
and requested that an ambulance be called. An ambulance arrived at the prison between

3:40 and 3:45 a.m. The ambulance left the prison at approximately 4:00 a.m. A doctor at

a local hospital pronounced Christopher dead at 4:30 a.m.

       The Department argued that the undisputed evidence demonstrated that it was

immune from all of Shalay's claims as a matter of law. The Department contended that

pursuant to section 844.6, it could not be found liable for any of Shalay's claims arising

from a Department employee's application of O.C. spray. 4 The Department also

contended that the undisputed evidence described above demonstrated as a matter of law

that the Department could not be found liable for failing to summon medical care

pursuant to section 845.6. In support of this contention, the Department argued that a

sergeant summoned medical care before Christopher exhibited symptoms that

demonstrated a need for immediate medical care, the responding nurse provided

Christopher with medical treatment, and prison staff summoned an ambulance when

Christopher appeared to be in "actual distress."

       The Department supported its motion with a separate statement of facts and

declarations from Officer Alvarez, the sergeant who initially responded to the scene of

the fight and summoned medical assistance, another officer who led Christopher to the

shower and assisted in moving Christopher from the shower, and Nurse Ramirez, all of




4       As discussed in greater detail in part III, post, section 844.6 provides that public
entities are not liable for any injury to a prisoner unless liability is imposed by statute.
                                              5
whom are Department employees. The Department also offered various reports that

these employees had prepared near the time of the incident.5

       Shalay filed an opposition in which she argued that a jury could determine that the

Department had failed to summon medical care in light of undisputed evidence that the

Department never telephoned a prison doctor, who was on call but not at the prison at the

time of the incident. Shalay argued that a doctor could have provided life-saving care

such as administering medication, performing an airway intubation, or using a

defibrillator. Shalay further argued that the court should reject any argument that the

Department had met its duty to summon care by "having two nurses[6] on site providing

CPR," because the "nurses were inadequately prepared to treat [Christopher] for cardiac

arrest . . . ." Shalay also argued that the Department could be found liable for injuries

arising from the application of the O.C. spray, under the theory that the Department owed

a duty of care to Christopher in light of the " 'special relationship between jailer and

prisoner.' "

       Shalay supported her opposition with a separate statement of facts and

numerous exhibits, including portions of the deposition transcripts of several Department

employees.




5      The Department also requested that the court take judicial notice of its existence as
a public entity under section 12838 and Christopher's death certificate.

6      In the opposition to the motion for summary judgment, Shalay offered excerpts of
the deposition of a nurse, Nurse T. Vea, who assisted Nurse Ramirez in treating
Christopher after he became unresponsive.
                                              6
C.        The trial court's ruling and the appeal

          After further briefing and a hearing, the trial court granted the Department's

motion for summary judgment. In its order, the court stated in relevant part:

             "[T]he Court finds that there is no triable issue of material fact, and
             that [the Department] is entitled to judgment as a matter of law on all
             causes of action on the grounds that (1) [the Department] is immune
             from liability for injuries to prisoners under Government Code
             section 844.6; (2) [the Department] is immune from liability for
             failure to furnish or obtain medical care under Government Code
             section 845.6; and (3) there is no dispute of material fact that [the
             Department] took reasonable action to summon medical care within
             the meaning of Government Code section 845.6. Specifically, the
             court finds that [the Department] submitted evidence showing that it
             summoned an ambulance within a reasonable period of time after
             inmate Christopher Durio lost consciousness. Plaintiff did not
             submit evidence to refute the time frame provided by [the
             Department] and did not submit evidence that the prison doctor
             could have arrived more quickly than the ambulance had he been
             called."

          The trial court entered judgment in favor of the Department, from which Shalay

time appeals.

                                               III.

                                         DISCUSSION

     The trial court properly granted the Department's motion for summary judgment

          Shalay claims that the trial court erred in concluding that the Department

established a complete immunity defense with respect to each of Shalay's causes of

action.




                                                7
A.     Governing law

       1.     The law governing summary judgment

       A moving party is entitled to summary judgment when the party establishes that it

is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.

(c).) A defendant may make this showing by demonstrating that the plaintiff cannot

establish one or more elements of all of his causes of action, or that the defendant has a

complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th

461, 466.)

       In reviewing a trial court's ruling on a motion for summary judgment, the

reviewing court makes " 'an independent assessment of the correctness of the trial court's

ruling, applying the same legal standard as the trial court in determining whether there

are any genuine issues of material fact or whether the moving party is entitled to

judgment as a matter of law. [Citations.]' [Citation.]" (Trop v. Sony Pictures

Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)

       2.     General principles of law governing the Department's immunity defenses

              a.     Public entity immunity

       Unless provided by statute, California public entities are not liable for tort claims

seeking money damages. (§ 815.)7

       Section 815 provides in relevant part:


7      Section 814 explains that the provisions contained in sections 814 through section
895 do not apply to contractual claims or to claims seeking "relief other than money or
damages." (§ 814 ["Nothing in this part affects liability based on contract or the right to
obtain relief other than money or damages against a public entity or public employee"].)
                                              8
          "Except as otherwise provided by statute:

          "(a) A public entity is not liable for an injury, whether such injury
          arises out of an act or omission of the public entity or a public
          employee or any other person."

Thus, "sovereign immunity is the rule in California; governmental liability is limited to

exceptions specifically set forth by statute." (Cochran v. Herzog Engraving Co. (1984)

155 Cal.App.3d 405, 409.)

                 b.    The immunity of public entities for correctional activities

       Sections 844 through 846 codify several specific provisions applicable to

correctional institutions. Of particular import to this case are sections 844.6 and 845.6.

                       i.     Section 844.6

       Section 844.6, subdivision (a)(2) broadly states that public entities are not liable

for any injury to a prisoner unless liability is imposed by statute. The statute provides in

relevant part:

          "(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."

       Section 844.6 also makes clear that this provision does not immunize a public

employee from liability for injury proximately caused by the employee's negligent

conduct, and specifies that a public entity has a duty to pay a judgment based on a

medical malpractice claim against a public employee:



                                               9
          "(d) Nothing in this section exonerates a public employee from
          liability for injury proximately caused by his negligent or wrongful
          act or omission. The public entity may but is not required to pay any
          judgment, compromise or settlement, or may but is not required to
          indemnify any public employee, in any case where the public entity
          is immune from liability under this section; except that the public
          entity shall pay, as provided in Article 4 (commencing with Section
          825) of Chapter 1 of this part, any judgment based on a claim against
          a public employee who is lawfully engaged in the practice of one of
          the healing arts under any law of this state for malpractice arising
          from an act or omission in the scope of his employment, and shall
          pay any compromise or settlement of a claim or action, based on
          such malpractice, to which the public entity has agreed." (§ 844.6,
          subd. (d).)

                     ii.     Section 845.6

       The first sentence of section 845.6 reaffirms that a public entity is immune from

liability for injuries caused by the failure to furnish or obtain medical care for prisoners,

but states that a public entity is liable for the failure to summon medical care under

certain narrowly defined circumstances. The statute provides in relevant part:

          "Neither a public entity nor a public employee is liable for injury
          proximately caused by the failure of the employee to furnish or
          obtain medical care for a prisoner in his custody; but . . . 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." (§ 845.6)

       Section 845.6 also makes clear that this provision does not immunize a public

employee from a medical malpractice claim or excuse a public entity from its duty to

indemnify under section 844.6:

          "Nothing in this section exonerates a public employee who is
          lawfully engaged in the practice of one of the healing arts under any
          law of this state from liability for injury proximately caused by

                                              10
            malpractice or exonerates the public entity from its obligation to pay
            any judgment, compromise, or settlement that it is required to pay
            under subdivision (d) of Section 844.6."

B.     The trial court properly concluded that the Department established that it is
       immune as a matter of law with respect to each of Shalay's claims

       1.      The Department is immune as a matter of law from Shalay's wrongful
               death claim

       Shalay contends that the trial court erred in concluding that the Department

established as a matter of law that it could not be held liable pursuant to section 845.6 for

her wrongful death claim.

               a.     Applicable case law

       In Castaneda v. Department of Corrections and Rehabilitation (2013) 212

Cal.App.4th 1051, 1070 (Castaneda), the Court of Appeal described the scope of the duty

to summon immediate medical care provided in section 845.6. The Castaneda court

noted that the statute "creates . . . limited public-entity liability when: (1) the public

employee 'knows or has reason to know [of the] need,' (2) of 'immediate medical care,'

and (3) 'fails to take reasonable action to summon such medical care.' (§ 845.6, italics

added.)" (Castaneda, supra, at p. 1070.) The Castaneda court also explained that

"[s]ection 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

employee's malpractice in providing that care." (Castaneda, supra, at p. 1070.) The

limited duty provided in section 845.6 is reflected in the structure and text of the statute:

            "A narrow reading of section 845.6 is also compelled as a matter of
            statutory interpretation. First, the duty to summon is presented as
            the exception to the broad, general immunity for failing to furnish or

                                               11
          provide medical care. Second, section 845.6 imposes the duty to
          summon on 'public employees' generally, not medical care providers
          in particular. Many such public employees are '[p]rison authorities
          [who] do not have the medical training to know whether a prisoner's
          medical condition has been properly diagnosed and treated.'
          ([Watson v. State (1993) 21 Cal.App.4th 836, 843 (Watson)].) The
          Legislature could not have contemplated imposing a duty to do more
          than to summon medical care as it imposed that duty on 'public
          employees,' such as prison authorities, generally."8 (Castaneda,
          supra, 212 Cal.App.4th at p. 1071, fn. omitted.)

       The Castaneda court also explained that California courts have concluded that the

failure of a health care professional who is summoned to provide medical assistance to a

prisoner to thereafter provide adequate treatment to the prisoner does not come within the

scope of the duty set forth in section 845.6:

          "The distinction between failure to summon medical care—for
          which the State can be held liable under section 845.6—on the one
          hand, and negligence in providing care—for which the State is
          immune—on the other hand, was addressed in Nelson v. State of
          California [(1982)] 139 Cal.App.3d 72 [(Nelson)]. There, the
          plaintiff was incarcerated when he complained of various medical
          problems that were symptoms of diabetes. (Id. at p. 75.) He filed a
          tort claim reciting the ' "failure of the Department of Corrections to
          diagnose and treat or allow claimant to maintain his ongoing
          medications." ' ( Id. at p. 80.) The plaintiff's ensuing complaint was
          based on the failure to summon immediate, competent medical care
          under section 845.6. ([Nelson], supra, at p. 78.) Nelson held 'as a
          matter of statutory interpretation, that the act of a doctor or other
          such professional who, in the course of treatment of a prisoner, fails
          to prescribe and/or provide the correct medication is [not] the legal
          equivalent to a failure to summon medical care as set forth in
          [§ 845.6].' (Id. at pp. 80–81.) 'Once a practitioner has been


8      In the footnote omitted from this quotation, the Castaneda court explained that the
Government Code "does impose liability on health care providers for injury proximately
caused by malpractice," but that Castaneda had "sued the employee physicians and nurses
in federal court, not in this state court action." (Castaneda, supra, at p. 1071, fn. 9.)
Thus, as in this case, the Department was the only defendant in Castaneda.
                                                12
          summoned to examine and treat a prisoner, he or she is under a duty
          to exercise that degree of diligence, care, and skill such as is
          ordinarily possessed by other members of the profession. Failure to
          do so is malpractice. [Citation.] Failure of a practitioner to
          prescribe or provide necessary medication or treatment to one he or
          she has been summoned to assist is a breach of such duty and as
          such is also medical malpractice and clearly, as a matter of the plain
          meaning of the statutory language, cannot be characterized as a
          failure to summon medical care.' (Id. at p. 81, italics added.)

          "Watson, supra, 21 Cal.App.4th 836, also considered the parameters
          of governmental liability under section 845.6. Watson determined
          section 845.6 'confers a broad general immunity on the public entity'
          and the duty to 'summon' medical care under section 845.6 neither
          encompasses a duty to provide reasonable medical care, nor includes
          a concomitant duty to assure that prison medical staff properly
          diagnose and treat the medical condition, nor imposes a duty to
          monitor the quality of care provided. (Watson, supra, at pp. 841–
          843.)" (Castaneda, supra, supra, 212 Cal.App.4th at pp. 1071-
          1072.)

       The Castaneda court acknowledged that in Jett v. Penner (9th Cir. 2006) 439 F.3d

1091 (Jett), the United States Court of Appeals for the Ninth Circuit held that

" ' "immediate medical care" as used in the statute includes both diagnosis and treatment

and . . . the need for "immediate medical care" can arise more than once in relation to an

ongoing serious medical condition. . . ." (Castaneda, supra, 212 Cal.App.4th at p. 1073,

quoting Jett, supra, at p. 1099.) However, the Castaneda court expressly rejected the Jett

court's reasoning:

          "[T]he Ninth Circuit's application of section 845.6 ignores California
          authority interpreting that statute. California courts hold the failure
          to prescribe necessary medication or, once summoned to provide
          treatment, to ensure proper diagnosis, or to monitor the progress of
          an inmate that the public employee has been summoned to assist, are
          issues relating to the manner in which medical care is provided, and
          do not subject the State to liability under section 845.6 for failure to


                                            13
            summon. ([Nelson], supra, 139 Cal.App.3d at pp. 80–81; Watson,
            supra, 21 Cal.App.4th at pp. 841–843.)

            "Jett also contradicts the Legislature's determination, in enacting
            section 845.6, not to require follow-up or monitoring of medical
            care. 'As the bill [for section 845.6] was originally introduced the
            public employee was required to "see" to it that a prisoner needing
            medical care received it. As amended he was required only to
            "summon" medical care.' [Citation.]" (Castaneda, supra, 212
            Cal.App.4th at p. 1074.)

       Applying Nelson and Watson, the Castaneda court considered whether there was

sufficient evidence in the record in that case to support a verdict against the Department

for failing to summon medical care pursuant to section 845.6. The court concluded that

the Department could not be found to have breached its duty under section 845.6 based

on evidence that a nurse and a doctor working for the Department had failed to ensure

that Castaneda receive certain diagnostic testing necessary to detect cancer. (Castaneda,

supra, 212 Cal.App.4th at p. 1072.) In reaching this conclusion, the Castaneda court

reasoned:

            "On this record, the State summoned medical care for Castaneda.
            Indeed, it did more than summon, it treated him. Both Dr. Leong
            and Nurse Pasha assessed him; both included cancer as part of their
            differential diagnosis; both diagnosed his condition; and both
            referred him for further treatment, namely, medication and a biopsy.
            Under Nelson and Watson, the failure of these two public employees
            to provide further treatment, or to ensure further diagnosis or
            treatment, or to monitor Castaneda or follow up on his progress, are
            all facts which go to the reasonableness of the medical care
            provided, but do not constitute a failure to summon medical care.
            (Watson, supra, 21 Cal.App.4th at pp. 841–843;[Nelson], supra, 139
            Cal.App.3d at pp. 80–81.)" (Castaneda, supra, at p. 1072.)




                                              14
              b.     Application

       In her wrongful death claim, Shalay incorporated allegations that the Department

failed to take reasonable action to summon medical care on Christopher's behalf and that

this failure caused Christopher's death. Shalay further alleged that the Department was

liable pursuant to section 845.6.

       As described in detail in part II, ante, in moving for summary judgment, the

Department presented evidence that its employees summoned Nurse Ramirez prior to

Christopher exhibiting any symptoms that would lead a reasonable person to know that

he was in need of immediate medical care. Within minutes of being summoned, Nurse

Ramirez responded to the scene and began providing medical attention to Christopher.

As Christopher's condition worsened and he stopped breathing, Nurse Ramirez began

performing CPR, and requested that an ambulance be called. Shalay failed to present any

evidence that contradicted the Department's evidence in this regard.

       In light of the case law discussed above, the Department established as a matter of

law that it could not be found liable for failing to summon medical care under section

845.6. (See Nelson, supra, 139 Cal.App.3d at p. 81; Castaneda, supra, 212 Cal.App.4th

at p. 1072 [applying Nelson and concluding Department was immune as a matter of law

from claim that nurse summoned to provide medical treatment failed to provide adequate

treatment].) Any evidence that Nurse Ramirez failed to properly provide adequate

treatment to Christopher cannot support a claim for fail to summon medical care pursuant

to section 845.6. (Castaneda, supra, at p. 1074 ["Once summoned, the quality of medical

care is a matter of medical policy and practice, imposing on medical practitioners a duty

                                            15
to exercise that degree of diligence, care, and skill possessed by other members of the

profession, but it is not a violation of the employee's obligation to summon medical care

under section 845.6"].)

       Even assuming that the Department had not satisfied its duty under section 845.6

by summoning Nurse Ramirez, as noted above, the undisputed evidence also established

that as soon as Christopher stopped breathing and became unresponsive, Nurse Ramirez

started performing CPR and requested an ambulance, and that someone at the prison

called for an ambulance. On these facts, no reasonably jury could find that the

Department or its employees failed to summon medical care under section 845.6.

(Castaneda, supra, 212 Cal.App.4th at p. 1070, quoting § 845.6 [public entity can be

found liable for breach of duty to summon under section 845.6 only where "(1) the public

employee 'knows or has reason to know [of the] need,' (2) of 'immediate medical care,'

and (3) 'fails to take reasonable action to summon such medical care.' ")

       Shalay argues that at 2:45 a.m., upon the first signs that Christopher was having

difficulty breathing, correctional employees should have summoned a prison doctor, who

was on call but not physically at the prison, and that their failure to do so constitutes a

breach of the duty to take reasonable action to summon medical care within the meaning

of section 845.6. We are not persuaded. In this case, it is undisputed that, prior to 2:45

a.m., a correctional officer had already summoned medical care and that, as of 2:45 a.m.,

Nurse Ramirez was examining Christopher and providing medical care. For the reasons

stated above, this evidence establishes as a matter of law that the Department cannot be

held liable for failing to summon medical care under section 845.6.

                                              16
        Shalay cites two cases, Jett, supra, 439 F.3d 1091, and Flores v. Natividad

Medical Center (1987) 192 Cal.App.3d 1106 (Flores), in which courts have concluded

that a treating doctor's failure to summon additional medical care for a prisoner may

constitute evidence upon which a section 845.6 claim may be based. However, for

reasons discussed below, neither of the cases that Shalay cites supports reversal in this

case.

        In Jett, the Ninth Circuit concluded that evidence that a doctor failed to summon

additional medical care to set and cast a prisoner's fractured thumb could support a

verdict in the prisoner's favor under section 845.6. (Jett, supra, 439 F.3d at p. 1099.) As

discussed previously, the Jett court reasoned, "the term 'immediate medical care' as used

in the statute includes both diagnosis and treatment." (Ibid.)

        In Flores, the plaintiff sought to recover for injuries that he sustained after prison

doctors failed to transfer him from a prison infirmary to a hospital for treatment related to

an ulcer. (Flores, supra, 192 Cal.App.3d at pp. 1112-1113.) In describing the nature of

the plaintiff's claim against the State of California for failing to summon medical aid

pursuant to section 845.6, the Flores court noted, "Although plaintiff argued to the jury

that the doctors were negligent and liable for malpractice in their treatment of plaintiff

and in failing to transfer him to the hospital immediately, he also argued that the State

was liable for the doctors' failure to transfer him, such failure being equivalent to a

failure-to-summon medical aid under the statute." (Flores, supra, at p. 1115.) The Court

of Appeal concluded that the $250,000 limitation on noneconomic damages embodied in

the Medical Injury Compensation Reform Act (MICRA) (Civ. Code, § 3333.2 ) did not

                                               17
apply to the plaintiff's claim. (Flores, supra, at p. 1114. ) The Flores court reasoned that

because the State was immune from a vicarious liability claim against it premised on its

employee's commission of medical malpractice, the "the failure-to-summon theory" was

"the only proper basis for recovery against the State." (Id. at p. 1116; see also ibid.

["[a]lthough the failure to summon assistance could have provided a basis for the finding

of professional negligence against the doctors, this does not render the true nature of the

action against the State one for professional negligence"].)

       We acknowledge the tension between the reasoning of the courts in Castaneda,

Nelson, and Watson, on the one hand, with that of the courts in Jett and Flores on the

other, with respect to whether the State may be found liable under section 845.6 based on

the alleged failure of a medical practitioner who is treating a prisoner to seek additional

medical care for the prisoner. (Compare, e.g., Nelson, supra, 139 Cal.App.3d at p. 81

["Failure of a practitioner to prescribe or provide necessary medication or treatment to

one he or she has been summoned to assist . . . clearly, as a matter of the plain meaning of

the statutory language, cannot be characterized as a failure to summon medical care"]

with Flores, supra, 192 Cal.App.3d at p. 1117 ["It would be at least . . . anomalous, we

think, to insulate the State from liability simply because, fortuitously, the employees who

failed to summon assistance were doctors rather than other prison personnel"].)

However, for the reasons summarized in Castaneda, we agree that section 845.6 provides

for liability only where a public employee fails to summon medical care, and does not




                                             18
extend to the summoned employee's treatment decisions with respect to how to provide

such care.9

       In any event, in this case, even assuming we were to follow Jett and Flores and

conclude that the Department did not demonstrate as a matter of law that it satisfied its

duty under section 845.6 by summoning Nurse Ramirez, for the reasons stated above, we

conclude that no reasonable jury could find that Nurse Ramirez failed to summon

medical care.10 Shalay is therefore not entitled to reversal of the court's judgment based

on the reasoning of Jett or Flores.11




9      The Castaneda court expressly considered and rejected the Jett court's reasoning
on this issue (Castaneda, supra, 212 Cal.App.4th at p. 1073), and neither Jett nor Flores
applied Nelson or Watson with respect to this issue.

10     As noted previously, the undisputed evidence establishes that Nurse Ramirez
started performing CPR and summoned an ambulance as soon as Christopher stopped
breathing and became unresponsive.

11     Shalay also argues that in ruling on the Department's motion for summary
judgment, the trial court erred in considering evidence favoring the non-moving party. In
support of this contention, Shalay cites to a series of immaterial factual issues including
"Officer Alvarez's actions during the O.C. Spray incident," Nurse Ramirez's deposition
testimony concerning his participation in a case study after the incident, and the
Department's initial classification of the incident as a homicide. None of Shalay's
arguments with respect to such evidence demonstrate the issuance of a genuine issue of a
material fact warranting reversal of the court's summary judgment.

                                            19
       Accordingly, we conclude that the Department established as a matter of law that

it is immune from Shalay's wrongful death claim premised on the Department's alleged

"fail[ure] to take reasonable action to summon medical care."12

       2.     The Department is immune from Shalay's negligence and battery claims

       Shalay contends that the trial court erred in concluding that the Department

established as a matter of law that it could not be held liable with respect to Shalay's

negligence and battery claims premised on Officer Alvarez's act in spraying Christopher

with O.C. spray.

       Citing Giraldo v. California Department of Corrections and Rehabilitation (2008)

168 Cal.App.4th 231, 250 (Giraldo), Shalay argues, "there is a 'special relationship

between jailer and prisoner, imposing on the former a duty of care to the latter.' " Shalay

contends that Officer Alvarez breached this duty by spraying Christopher with O.C. spray

and argues that "[p]ublic employees and public entities are liable for injuries from their

negligent acts or omissions to the same extent as a private person, unless a statutory

exception applies." (Italics added.)



12      Although Shalay's brief focuses on the Department's alleged failure to summon
medical care, in her second amended complaint, Shalay's wrongful death claim also
incorporated the allegation that the Department "failed to provide adequate treatment."
(Italics added.)
        To the extent that Shalay's wrongful death is claim is premised on the
Department's alleged failure to provide adequate treatment, the Department is immune
from such a claim as a matter of law. (See Castaneda, supra, 212 Cal.App.4th at p. 1071
[noting that the Department is immune from medical malpractice claims]; § 845.6
"Neither a public entity nor a public employee is liable for injury proximately caused by
the failure of the employee to furnish . . . medical care for a prisoner in his custody";
§ 844.6 "a public entity is not liable for: [¶] . . . [¶] An injury to any prisoner"].)
                                             20
       A statutory exception does apply in this case. "Although a public entity may be

vicariously liable for the acts and omissions of its employees ([§] 815.2), that rule does

not apply in the case of injuries to prisoners." (Lawson v. Superior Court (2010) 180

Cal.App.4th 1372, 1383, citing § 844.6.) Section 844.6 makes clear that the Department

is not liable for any injuries to a prisoner unless liability is imposed by certain statutory

provisions, none of which Shalay contends applies. (§ 844.6 ["except as provided in this

section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing with

Section 3500) of Part 3 of the Penal Code,[13] a public entity is not liable for: [¶] . . . [¶]

An injury to any prisoner"]; see also § 815, subd. (b) ["The liability of a public entity

established by this part (commencing with Section 814) is subject to any immunity of the

public entity provided by statute, including this part"].) Thus, even assuming that Officer

Alvarez breached a duty owed to Christopher under Giraldo, the Department is immune

from Shalay's negligence and battery causes of action.14



13    Shalay does not contend that she may maintain her negligence or battery claims
pursuant to any of these provisions.

14     Due to the procedural context in which Giraldo arose—the review of an order
sustaining the joint demurrer of the Department and several of its employees to a
negligence cause of action based on an asserted lack of duty—the Giraldo court had no
occasion to address, and did not address, a public entity's immunity to injury to prisoners
under section 844.6. (See Giraldo, supra, 168 Cal.App.4th at p. 237.) Although in
Giraldo, the Department argued in its demurrer that it was immune from liability (id. at p.
241), the trial court did not sustain the demurrer on this ground (id. at p. 242), and the
Giraldo court expressly declined to consider the "alternative grounds raised in the
demurrer." (Id. at p. 252.) Instead, the court remanded the matter for "whatever further
consideration [of such alternative grounds] is appropriate." (Ibid.) It is thus clear that the
Giraldo court did not address the immunity defense that the Department asserts in this
case.
                                              21
      Accordingly, we conclude that the Department established its immunity defense as

a matter of law, and that the trial court therefore properly granted summary adjudication

in favor of the Department on Shalay's negligence and battery claims.

                                           IV.

                                     DISPOSITION

      The judgment is affirmed.


                                                                               AARON, J.

WE CONCUR:



             BENKE, Acting P. J.



                      HALLER, J.




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