Filed 2/26/16 Cox v. County of Nevada CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Nevada)
                                                            ----


NOAH COX, a Minor, etc., et al.,                                                             C077508

                   Plaintiffs and Appellants,                                   (Super. Ct. No. TCU125115)

         v.

COUNTY OF NEVADA,

                   Defendant and Respondent.



         Officers detained Clara Soto following an automobile accident that also involved
her two children, Noah and Kiera Cox (plaintiffs). The officers arrested Soto for driving
under the influence and child endangerment. After she was examined at a local hospital,
Soto was incarcerated for three hours. Two days later Soto died. Plaintiffs brought suit
against numerous defendants, including County of Nevada (County), alleging Soto died
as a proximate result of not receiving medical treatment for an obvious and serious
medical condition.1 County brought a motion for summary judgment, and the trial court
found there was no evidence County or its agents were on notice as to Soto’s medical


1Soto’s husband, Anthony Cox, is the father and guardian ad litem of plaintiffs, both
minors.

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condition during her incarceration and plaintiffs failed to provide evidence as to the
causal connection between County’s actions and Soto’s death. Plaintiffs appeal, arguing
triable issues of fact exist as to both notice and the causal connection between Soto’s
incarceration and death. We shall affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       One morning in March 2011 Truckee police officers responded to a single-vehicle
rollover accident. Soto, Noah, and Kiera were in the vehicle.2 An officer at the scene,
Sergeant Robert Womack, prepared an incident report. Womack stated Soto complained
of a minor cut to her left wrist but denied any other medical issues. She could not tell
Womack how the collision occurred. When a paramedic arrived, Soto had difficulty
“answering questions about what year it was and where she was . . . .” Soto “seemed
very slow and lethargic, almost as if in shock.” However, she continued to deny any
medical issues. Soto could not walk without assistance and when seated in the
ambulance almost fell over. The ambulance transported Soto to a local hospital about an
hour later.
At the Hospital
       The hospital admitted Soto, who was examined by Dr. Jonathan Laine. Laine
found Soto suffered a concussion without loss of consciousness and a small laceration to
her wrist.
       Hospital medical records revealed that Soto was also experiencing back pain
resulting from a work-related back injury sustained three days before the accident. Soto
received treatment for the condition and prescriptions for Norco, ibuprofen, and Valium.
       Laine completed and signed a “Prisoner Medical Clearance Report,” stating, “I
have examined the prisoner and find him/her acceptable for admission to the jail. I have



2 Because Anthony, Noah, and Kiera have the same surname, to avoid confusion we will
refer to them herein by their given names.

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no specific suggestions regarding care of this prisoner for the condition for which I have
examined him/her.”
       At the emergency room, the paramedic told Womack that Soto admitted using
Norco and Valium the previous day. Soto also stated she had vomited that morning.
Womack spoke with Soto about two and one-half hours after the collision, while she was
in the general emergency area. She still could not explain how the collision occurred and
denied any head injury, headache, backache, or any other medical issues.
       Womack conducted standardized field sobriety tests on Soto at the hospital. She
was unable to stand on one foot unassisted, and was lethargic. During the finger-to-nose
test, Soto became confused and missed her nose several times. In Womack’s opinion,
based on his evaluation, Soto was under the influence of a depressant and narcotic, and
was unable to safely operate a motor vehicle.
At the Jail
       Officers arrested Soto for suspicion of driving under the influence and child
endangerment, and transported her to jail. As part of the booking procedure, Soto
completed a health screening questionnaire, the “Initial Pre-Booking Health Screening”
form. The form asked, in part, “Do you have any current health problems or take
medications on a daily basis?” Soto answered, “hydrocodone – back pain.” Soto also
stated she had a sore back from a work-related injury and from the accident. In response
to the query, “Is there any other information regarding your health you would like to tell
us,” Soto answered no. In total, Soto answered yes to four questions on the form,
including “Have you had a recent weight loss of more than ten pounds without dieting?”
The form states, “Any ‘yes’ answers need to be referred to the medical staff
immediately.”
       Jail staff completed an “Inmate Booking Assessment Details” form on Soto,
concluding she did not appear in need of medical attention. The assessment noted Soto
was experiencing a “sore back from a work injury & a roll over crash today” and that she

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was taking hydrocodone for back pain. During her incarceration, Soto did not request
medical care or treatment.
       Soto remained at the jail for approximately three hours before posting bail. That
afternoon she returned home with Anthony. Anthony did not observe a change in Soto’s
appearance at that time.
Subsequent Events
       Early the next morning, Soto told Anthony she was not feeling well, but she
“thought she was okay.” Soto went back to bed, and when Anthony returned home that
afternoon he noticed a change in Soto’s condition. Soto was hunched over, having
difficulty walking, and was slurring her words. She appeared pale and complained of
pain “radiating down her legs.”
       The pair drove to an occupational health center to see a doctor. When they arrived
they discovered no doctors were available and were directed to the hospital where Cox
had been seen after the automobile accident.
       Soto and Anthony arrived at the hospital emergency room between 4:30 and
5:00 p.m. The next day Soto died while hospitalized. The cause of death was
methicillin-resistant staphylococcus aureus (MRSA). Anthony did not know Soto had
contracted MRSA until after her death.
Plaintiffs’ Suit and County’s Motion for Summary Judgment
       Plaintiffs filed suit against County, the Town of Truckee, Tahoe Forest Hospital,
and five individually named physicians, claiming liability for Soto’s death. Plaintiffs
argued County failed to summon immediate medical care for Soto while she was
incarcerated.
       County filed a motion for summary judgment. Plaintiffs opposed the motion,
offering the declaration of Dr. Gerard Valcarenghi. Valcarenghi, a physician specializing
in pulmonary and critical care medicine, reviewed Soto’s medical records from the night
of the collision and other pertinent documents. Based on his expert opinion, Valcarenghi

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stated Soto was already afflicted with MRSA at the time she was seen in the emergency
room.
        Valcarenghi concluded: “It is also . . . my expert opinion to a reasonable degree of
medical probability, that it is very likely than not that Ms. Soto would have survived if
Nevada County Jail had summoned medical care for her while she was incarcerated on
March 22nd, 2011, and she subsequently received timely and appropriate treatment.
Given the nature of MRSA the earlier antibiotic treatment is begun the higher the chances
of survival, it is my expert opinion that if Ms. Soto had received appropriate treatment
March 22nd, 2011, she would still be alive today.”
        The trial court granted County’s motion for summary judgment. The court
considered Valcarenghi’s declaration and stated: “However, that declaration states
only . . . that, if the County had summoned medical care for decedent while she was
incarcerated, she had higher chances of survival. But, there is nothing in that declaration
demonstrating that the County was on notice of decedent’s condition or failed to obtain
assistance. Rather, the declaration only provides that decedent’s condition existed at the
time she saw Dr. Laine at Tahoe Forest Hospital.”
        The court noted Government Code section 845.6 provides broad general immunity
to a public entity subject to the exception where the public entity’s employee knew or had
reason to know the prisoner was in need of immediate medical care and failed to take
action to summon medical care. The court concluded: “Plaintiff has failed to
demonstrate any evidence that the County’s employees knew or had reason to know that
the prisoner was in need of immediate medical care. Furthermore, the Plaintiffs have not
presented any triable facts to demonstrate that [sic] the requisite causal connection
between Ms. Soto’s incarceration and her death. Dr. Laine provided a medical clearance
less than one hour before decedent was admitted to the jail. The only items listed on the
Pre-Booking Health Screening is that decedent had ‘hydrocodone-back pain’ and also



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stated ‘No’ when asked ‘Is there any other information regarding your health you would
like to tell us?’
       “There are no triable facts that would tend to show decedent’s medical status or
condition deteriorated in the jail or that an immediate return to the hospital from which
she was discharged was necessary.”
       Following entry of judgment, plaintiffs filed a timely notice of appeal.
                                       DISCUSSION
                                    Standard of Review
       A motion for summary judgment must be granted if the submitted papers show
there is no triable issue as to any material fact and the moving party is entitled to
judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
844.) The moving party, whether plaintiff or defendant, initially bears the burden of
making a “prima facie showing of the nonexistence of any genuine issue of material
fact.” (Id. at p. 845.) “A prima facie showing is one that is sufficient to support the
position of the party in question.” (Id. at p. 851.) “Thus, if a plaintiff who would bear
the burden of proof by a preponderance of evidence at trial moves for summary
judgment, he must present evidence that would require a reasonable trier of fact to find
any underlying material fact more likely than not—otherwise, he would not be entitled to
judgment as a matter of law, but would have to present his evidence to a trier of fact.”
(Ibid., italics omitted.) Once the moving party has met its burden, the burden shifts to the
opposing party to show the existence of a triable issue of material fact. (Code Civ. Proc.,
§ 437c, subds. (a), (p)(2).)
       We review de novo the record and the determination of the trial court. First, we
identify the issues raised by the pleadings, since it is these allegations to which the
motion must respond. Second, we determine whether the moving party’s showing has
established facts negating the opponent’s claims and justifying a judgment in the moving
party’s favor. When a summary judgment motion prima facie justifies a judgment, the

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final step is to determine whether the opposition demonstrates the existence of a triable
issue of fact. (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058,
1067; Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.)
                                          NOTICE
        Plaintiffs argue triable issues of fact exist as to whether County was on notice of a
need to arrange for immediate medical care for Soto during her incarceration. According
to plaintiffs, they submitted “a plethora of evidence to show that Defendant and its agents
had actual and/or constructive notice that there was a serious and obvious medical issue”
with Soto.
        Public entities and their employees are not liable for failing to obtain medical care
for prisoners. (Gov. Code, § 845.6.)3 A prisoner includes an inmate of a prison, jail, or
correctional facility. (§ 844.) Section 845.6 states, in part: “Neither a public entity nor a
public employee is liable for injury proximately caused by the failure of the employee to
furnish or obtain medical care for a prisoner in his custody; but, except as otherwise
provided by Sections 855.8 and 856, a public employee, and the public entity where the
employee is acting within the scope of his employment, is liable if the employee knows
or has reason to know that the prisoner is in need of immediate medical care and he fails
to take reasonable action to summon such medical care.”
        To impose upon a public entity the duty to furnish such medical care “would be
expanding the liability of the public entity beyond that contemplated by the Legislature.”
(Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051,
1074.) The exception to this immunity requires actual or constructive knowledge that the
prisoner is in need of medical attention because of a serious and obvious medical
condition requiring immediate care. (Lucas v. County of Los Angeles (1996)




3   All further references are to the Government Code unless otherwise designated.

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47 Cal.App.4th 277, 288.) This narrow exception does not apply if a public entity simply
knows of a medical condition but fails to treat that condition. (Castaneda, supra,
212 Cal.App.4th at p. 1070.)
       Plaintiffs point to evidence supporting imposition of the exception: (1) the initial
prebooking health screening form; (2) the booking medical assessment form; (3) the
booking photograph; and (4) statements made in police and ambulance reports that Soto
had trouble with “simple ambulation, was confused, showed lethargy, and displayed an
altered level of consciousness.”
       Plaintiffs place the greatest emphasis on Soto’s answers on the initial prebooking
health screening form. They argue: “While Plaintiffs concur with Defendant that no
mandatory duty was establish[ed] by the Initial Pre-Booking Health Screening Form’s
direction to jail staff to immediately summon medical staff, Plaintiffs contend that the
affirmative answers were sufficient to establish that Defendant and its agents were placed
on notice as to the existence of a serious medical condition. The lack of explanation for
Clara Soto’s weight loss, the existence of an abscess, as well as her confusion, lethargy,
and trouble with simple ambulation should have placed Defendant on notice that there
was a serious medical condition that needed to be addressed.”
       However, in their reply brief, plaintiffs assert that the prebooking form gave notice
of Soto’s condition because “On its face, it directs jail staff to contact medical staff
immediately in response to an affirmative answer to questions on the form. Clara Soto
answered in the affirmative to five of these questions. . . . Any reasonable person would
interpret this form as requiring immediate referral to medical staff . . . .” During oral
argument, the trial court asked plaintiffs about the prebooking form, pointing out that one
of the questions, “Do you drink alcohol on a daily basis or do you use drugs,” would
probably be answered in the affirmative by 90 percent of the people in county jail.
Plaintiffs responded that all the jail had to do was refer any inmate who answered any
question in the affirmative to medical staff to be “completely alleviated of any liability.”

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       Here, however, we are concerned with whether County had notice of Soto’s
medical condition. Despite answering “yes” to several questions on the prebooking form,
Soto answered “no” to the question, “Is there any other information regarding your health
you would like to tell us?” She also provided information about her back pain and
prescribed medication. Nothing on the prebooking form would have alerted County staff
that Soto was suffering from a serious and obvious medical condition requiring
immediate medical attention beyond the condition for which she was seen at the hospital.
       Although plaintiffs reference the booking medical assessment form, they provide
no explanation of what in that form provided any notice of Soto’s medical condition. Nor
does the booking photo of Soto’s shoulder, which plaintiffs claim “clearly shows an
abscess on Soto’s right shoulder,” bolster their claim that County had notice. Plaintiffs
fail to explain how an abscess, which Soto described as in the process of healing,
provides notice of a serious and harmful condition.
       Finally, plaintiffs point to Soto’s “trouble with simple ambulation,” confusion,
lethargy, and altered level of consciousness as evidence that Soto was suffering from a
serious and obvious medical condition. However, Soto failed to pass the field sobriety
tests administered by Womack, providing a reasonable explanation for Soto’s altered
level of consciousness, unsteadiness, and confusion. We find no triable issue of fact as to
whether County was on notice as to Soto’s serious medical condition while at the jail.
                                     Causal Connection
       Plaintiffs also contend they presented a triable issue of fact as to the causal
connection between Soto’s incarceration and her death two days later. In support, they
rely on Valcarenghi’s declaration.
       According to plaintiffs, Valcarenghi’s declaration establishes a causal connection
between Soto’s incarceration and her subsequent death. Our review of the declaration
reveals no such evidence. Valcarenghi states that Soto was suffering from undiagnosed
MRSA on March 22, 2011. He does not state that County knew or reasonably should

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have known of her condition. In addition, Valcarenghi opines that had County staff
summoned immediate medical care for the undiagnosed condition and had Soto received
appropriate treatment for MRSA within this window of time that medical treatment might
have effectively addressed the condition and Soto would have survived.
       What is lacking is any evidence of proximate causation. Unless County staff knew
of Soto’s undiagnosed condition, their failure to summon immediate medical care cannot
result in liability. Causation in a wrongful death action requires the plaintiff to prove that
the victim’s death was caused by the wrongful act or neglect of the defendant. (Mayes v.
Bryan (2006) 139 Cal.App.4th 1075, 1092-1093; see Code Civ. Proc., § 377.60.)
Nothing in Valcarenghi’s declaration establishes any negligence or wrongful act by
County staff. Accordingly, there is no disputed issue of material fact as to causation or
any linkage between Soto’s incarceration and her death two days later.
                                      DISPOSITION
       The judgment is affirmed. County shall recover costs on appeal.



                                                             RAYE              , P. J.
We concur:



         HULL                , J.



         ROBIE               , J.




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