                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 18 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROBIN WINGER,                                   No.    18-56118

                Plaintiff-Appellant,            D.C. No.
                                                8:13-cv-00267-AG-RNB
 v.

CITY OF GARDEN GROVE; et al.,                   MEMORANDUM*

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted December 9, 2019
                              Pasadena, California

Before: WARDLAW and LEE, Circuit Judges, and KENNELLY,** District Judge.

      In her second appeal to this Court, Robin Winger challenges the district

court’s grant of summary judgment in favor of City of Garden Grove police

officers Charles Starnes and Michael Elhami on the basis of statutory immunity.

Because the parties are familiar with the facts, we repeat them only as necessary to


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
explain our reasoning. For the reasons stated below, we reverse and remand.

      We review de novo a grant of summary judgment. Rojas v. FAA, 941 F.3d

392, 402 (9th Cir. 2019). “We view the evidence in the light most favorable to the

nonmoving party, determine whether there are any genuine issues of material fact,

and decide whether the district court correctly applied the relevant substantive

law.” Id. (alteration, citation, and internal quotation marks omitted).

                                          I

      The initial issue in this case is whether, under California law, a law

enforcement officer owes a duty of reasonable care to an arrestee in his custody

who needs immediate medical attention. See Davidson v. City of Westminster, 32

Cal. 3d 197, 201–02, 649 P.2d 894, 896 (1982) (courts address legal duty before

addressing statutory immunity). When, as here, we confront a state law issue

without precedent from the state’s highest court, we

“predict how the state high court would resolve it” by, among other things,

looking for guidance to decisions by the state’s intermediate appellate courts.

Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007) .

Although no California court has squarely decided the issue presented by this case,

the California Supreme Court has stated that a law enforcement officer has a duty

of care when his conduct, “in a situation of dependency, results in detrimental

reliance on him for protection.” Williams v. State of California, 34 Cal. 3d 18, 25,


                                          2
664 P.2d 137, 141 (1983); see also Lugtu v. California Highway Patrol, 26 Cal.

4th 703, 718, 28 P.3d 249, 257 (2001) (“[A] law enforcement officer has a duty to

exercise reasonable care for the safety of those persons whom the officer stops,

and . . . this duty includes the obligation not to expose such persons to an

unreasonable risk of injury by third parties.”).

      In an analogous case, a California intermediate appellate court concluded

that a jailer owes a duty of care to a prisoner who needs immediate medical

attention. Giraldo v. Dep’t of Corr. & Rehab., 168 Cal. App. 4th 231, 250, 85 Cal.

Rptr. 3d 371, 386 (2011). The reasoning employed by the court in Giraldo and the

general principles just referenced persuade us that the California Supreme Court

would hold that a law enforcement officer owes a duty of care to an arrestee in his

custody who needs immediate medical care. In Giraldo, the court found that a

jailer owes a duty of care to a prisoner because it is foreseeable that a prisoner

suffering from a medical emergency “may be at risk of harm,” and because a

prisoner in need of medical attention is vulnerable and dependent upon the jailer,

who controls the prisoner’s ability to seek medical care. Id. A similar relationship

exists between a law enforcement officer and an arrestee in his custody in need of

immediate medical attention.

      Our conclusion that the California Supreme Court likely would apply the

reasoning of Giraldo to this case is buttressed by the California Supreme Court's


                                           3
later reliance on Giraldo to state that “[a] typical setting for the recognition of a

special relationship is where the plaintiff is particularly vulnerable and dependent

upon the defendant who, correspondingly, has some control over the plaintiff’s

welfare,” Regents of Univ. of California v. Superior Court, 4 Cal. 5th 607, 621,

413 P.3d 656, 665 (2018) (alteration and internal quotation marks omitted)

(quoting Giraldo, 168 Cal.App.4th at 245-246, 85 Cal.Rptr.3d at 382). Therefore,

we conclude that the California Supreme Court would conclude that a law

enforcement officer owes a duty of reasonable care to an arrestee in his custody

who needs immediate medical attention.

                                           II

      The district court erred in finding that Elhami and Starnes were entitled to

immunity under California Government Code § 845.6. Because Winger was not “a

prisoner in [their] custody” as state law defines that term, Elhami and Starnes are

not eligible for immunity under Section 845.6. See Cal. Gov’t Code §§ 845.6, 844;

Fearon v. Dep’t of Corr., 162 Cal. App. 3d 1254, 1256, 209 Cal. Rptr. 309, 311

(1984); Larson v. City of Oakland, 17 Cal. App. 3d 91, 97, 94 Cal. Rptr. 466, 470

(1971).

                                           III

      Viewing the evidence in the light most favorable to Winger, there is a

genuine factual dispute regarding whether Elhami and Starnes breached the duty of


                                           4
reasonable care they owed to Winger by failing to take her to the hospital after they

arrested her. The issue of breach is a factual determination based on “the totality

of the circumstances.” See Hernandez v. City of Pomona, 46 Cal. 4th 501, 514,

207 P.3d 506, 515 (2009); see also Vasilenko v. Grace Family Church, 3 Cal. 5th

1077, 1084, 404 P.3d 1196, 1199 (2017).

                                         A.

      There is a genuine factual dispute regarding whether Elhami and Starnes

should have recognized that Winger needed immediate medical care and thus

whether they acted unreasonably by taking her to the police lockup instead of to a

hospital. Winger was unable to spell her first name, recall her last name, or

provide coherent answers to basic questions such as where she lived, what the time

was, and when she last ate. She repeatedly told Elhami that she did not feel well,

and that she recently had spent time in the hospital, which Elhami conveyed to

Starnes. She placed her hand near her chest when Elhami first approached her,

which, he testified, indicated to him that “there was something possibly internally

wrong with her”; within one minute of encountering Winger, he reported to a

police dispatcher than she complained of “pains to the chest.” Both officers had

completed training on how to recognize the symptoms of a stroke, and a doctor

who treated Winger testified that her inability to state her last name was not a

typical sign of intoxication but rather a stroke symptom that should have been


                                          5
recognizable to someone trained in stroke detection.

       Further, there is a genuine factual dispute regarding whether Winger

exhibited facial drooping, a common symptom of a stroke. Starnes and Elhami

both testified that Winger’s eyelids looked “droopy,” although she exhibited no

facial asymmetry; Starnes circled the words “[d]roopy eyelids” on a police report

entitled “drug influence report”; Winger’s daughter testified that Winger’s face

showed drooping on the left side when she pulled over the car, and when she spoke

to the paramedics; and Winger’s boyfriend testified that “one side of her face

looked droopy” when he picked her up at the jail.

       Viewed in the light most favorable to Winger, a reasonable jury considering

this evidence could find that the officers should have recognized that she needed

immediate medical care and that they acted unreasonably by declining to take her

to a hospital.

                                          B.

       A reasonable jury also could find that Winger was not capable of refusing

medical care, that Elhami and Starnes should have recognized her incapacity, and

that as a result they were negligent in taking her to a lockup instead of to a hospital

even though she refused medical care. The jury could base this finding on

Winger’s incoherent and confused answers to questions before, and after the

paramedics examined her. Additionally, a retired deputy chief of police testified


                                           6
that reasonable law enforcement officers would have recognized that if Winger

was not fully coherent, she was not capable of refusing medical care. Further,

firefighters who were at the scene testified that they believed that Winger should

have gone to the hospital, and encouraged her to do so. One firefighter testified

that he informed Elhami, in the presence of Starnes, of his belief that Winger

should be taken to a hospital, though it is disputed whether the firefighter

suggested to the officers that they should take her to the hospital against her will.

      Because there is a genuine factual dispute regarding whether Elhami and

Starnes breached their duty of reasonable care to Winger, we reverse the grant of

summary judgment and remand the case to the district court for trial.1

      REVERSED AND REMANDED.




      1
         Contrary to the dissent’s characterization of today’s decision, we do not
find that Elhami and Starnes acted unreasonably and do not impose liability. Our
opinion does nothing more than conclude that there is a genuine factual dispute
regarding whether Elhami and Starnes breached their duty of reasonable care to
Winger.

                                           7
                                                                          FILED
Robin Winger v. City of Garden Grove, No. 18-56118                         MAR 18 2020
LEE, Circuit Judge, dissenting:                                        MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

      There are no real winners in this case. Robin Winger suffered a stroke while

driving her car, but she did not realize it and repeatedly refused medical care

offered by first-responders. Garden Grove police officers Starnes and Elhami

mistakenly — but reasonably under the circumstances — believed that she was

under the influence of drugs or alcohol, and booked her in jail. As a result, Winger

suffered unnecessarily. With the benefit of hindsight, the police officers should

have perhaps compelled Winger to go to the hospital against her wishes. But I do

not believe that the police officers acted unreasonably, given what they knew at the

time. Accordingly, I respectfully dissent.1

      While Garden Grove police officers receive some training on how to

recognize symptoms of a stroke (e.g., disorientation, facial drooping), those

symptoms are also consistent with drug or alcohol use. The Garden Grove Police

Department Drug Influence Report form — which was filled out by Officer

Starnes — lists various drugs, along with common symptoms associated with

them. For “OPIATE,” it lists “Droopy Eyelids” (which Officer Starnes circled).

For “DEPRESSANTS,” it includes “Droopy Eyes” (which was also circled).



1
 I am assuming that California law imposes a duty of reasonable care to an
arrestee in need of immediate medical attention, and that California Government
Code § 845.6’s immunity provision does not apply here.
Under “HALLUCINOGENS,” the symptoms “Dazed” and “Disoriented” were

both circled by Officer Starnes. And “INHALANTS” notes “Confusion” and

“Disorientation.” Similarly, the Garden Grove Police Sobriety Form lists “sleepy”

eyes as a symptom of intoxication, and Officer Starnes circled that symptom as

well.

        The police officers were not alone in their mistaken assessment of Winger.

Emergency room doctor Bharath Chakravarthy who examined Winger wrote that

he doubted that she had suffered a stroke, but rather believed that she was likely

suffering from a “drug-induced psychosis.” It was only after further testing that

the doctors confirmed that Winger had in fact suffered a stroke. We ask too much

of first-responders if we expose them to potential liability for failing to recognize a

stroke when an emergency doctor did not initially diagnose it, either.

        Furthermore, Officers Elhami and Starnes acted reasonably when they

declined to take her to the hospital against her wishes when Winger repeatedly

rejected medical care. After pulling Winger over and speaking with her, Officer

Elhami called the police dispatcher and requested medical assistance to the scene.

Winger explained that she had been to the hospital recently, but told him that she

was “okay” and declined medical assistance. Officer Elhami told her that the

paramedics were nonetheless coming. After the paramedics evaluated Winger, she

again declined medical attention and signed a waiver form declining it. Even after
that, Officer Elhami again suggested that Winger go to the hospital, but Winger’s

daughter said her mother “seems much better.” While the police officers

ultimately arrested Winger for suspected intoxication or drug use, they knew that

Winger would receive a medical screening at jail prior to being booked. And

Winger did receive that medical screening — without anyone diagnosing her as

suffering from a stroke.

      Because I believe Officers Elhami and Starnes made difficult judgment calls

and acted reasonably based on what they knew at the time, we should not second-

guess their decisions. Accordingly, I respectfully dissent.
