Jones v. County of Los Angeles
Filed 1/31/14 Jones v. County of Los Angeles CA2/8
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
HELEN JONES, Individually
and as Personal Representative, etc.,
Plaintiff and Appellant,
v.
COUNTY OF LOS
ANGELES et al.,
Defendants and Respondents.
B241333
(Los
Angeles County
Super. Ct. No. BC
431634)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Amy D. Hogue, Judge. Affirmed in part; reversed in part.
Law
Offices of Lisa L. Maki, Lisa L. Maki, Christina M. Coleman and
Jill McDonell for Plaintiff and Appellant.
Hurrell
Cantrall, Thomas C. Hurrell, and Melinda Cantrall for Defendants and Respondents County of Los Angeles and
Sheriff Leroy Baca.
Seki,
Nishimura, & Watase, Gilbert M. Nishimura, J. Edwin Rathbun, Jr.,
Corinne D. Orquiola for Defendant and Respondent Christopher Kidder.
* *
* * * *
Plaintiff Helen Jones brought this
action individually and as personal representative of the estate of her son,
John Horton. Horton died in March 2009 while
incarcerated at the Los Angeles County
Sheriff’s Department, Men’s Central Jail.
Plaintiff filed a complaint in February 2010 against the County of Los Angeles
(County), Sheriff Leroy Baca, and doe defendants. She later identified and sued Deputy Christopher
Kidder as a doe defendant. The County
and Sheriff Baca filed a motion for summary judgment. Deputy Kidder filed a separate motion for
summary judgment. The trial court
granted summary judgment or judgment on the pleadings for all three defendants,
and plaintiff appealed.
We
affirm in part and reverse in part. The
judgment for Sheriff Baca is affirmed. The
judgment for the County on causes of
action for wrongful death and negligence is reversed. As well, the judgment for Deputy Kidder on the
causes of action for wrongful death, negligence, and violation of
facts and procedure
Allegations of
the Complaint
Jones’s
complaint alleged as follows. Horton was
incarcerated in March 2009 in the custody of the Los Angeles County Sheriff’s
Department (Department). On or about March 16, 2009, the court ordered that Horton be placed in the medical unit of the
jail for at least the beginning of the two to three weeks it would take to
transfer him to “fire camp.†The court
based its order on Horton’s “obvious
distress and other medical factors.†The
Department failed to implement the court’s medical order, and Horton never
received the care and
treatment ordered by the court. Instead, the Department “secret[ed]†Horton in
solitary confinement for 30 days, where he spent his time in a closet-sized
cell with no windows, no furniture except a bed, and a lamp that produced very
little light. The Department denied
plaintiff any visitation with her son, despite numerous attempts to see him. Horton was subjected to “ongoing harassment,
physical abuse, mental harassment, emotional abuse and/or other outrageous
conduct†by the deputies charged with his care. On or about March 30, 2009, deputies physically abused, assaulted, emotionally abused, and/or
facilitated Horton’s death by hanging while he was in solitary confinement.
The
complaint alleged causes of action for wrongful death; violation of civil
rights under Civil Code sections 43, 51, 51.7, and 52.1; negligence; negligent
supervision; and intentional infliction of emotional distress (IIED). Plaintiff alleged all causes of action
against all defendants, except she did not allege the wrongful death cause of
action against Sheriff Baca. She alleged
she brought the action both individually and as a representative of Horton’s
estate. After the summary judgment
proceedings, the court entered judgment for the County, Sheriff Baca, and
Deputy Kidder on all causes of action.
In
her opening brief, plaintiff states she is not appealing the court’s ruling on
all causes of action for Sheriff Baca or the court’s ruling for all defendants
on the IIED cause of action. She also
states she is not appealing the ruling for the County on her causes of action
“as an individual,†except for the wrongful death cause of action. Moreover, she limits her appeal to (1) the
court’s ruling for the County on the wrongful death, violation of civil rights,
negligence, and negligent supervision causes of action; and (2) the court’s
ruling for Deputy Kidder on the wrongful death, violation of civil rights, and
negligence causes of action.
name="_ftnref1" title="">[1] Our summary of the facts and
procedure is therefore limited to that information necessary to evaluate her
contentions on appeal.
The County’s Motion
for Summary Judgment or Summary Adjudication
The County filed a motion for summary judgment or summary
adjudication in October 2011 and argued, in pertinent part, the causes of
action plaintiff brought on behalf of Horton against the County were barred
because the County was statutorily immune to liability for injuries to
prisoners.
In
support of its motion, the County submitted the declaration of Dennis Burns, chief
of the custody operations division of the Department. Chief Burns had overall administrative
responsibility for the custody operations division, which was responsible for
the operation of the County’s jail system and the care, custody, security, and
rehabilitation of all inmates housed in the County’s jails. He was involved in the investigation into
Horton’s death. He had read the reports
prepared by the different investigative units (the Department’s homicide
bureau, the internal affairs division, and the men’s central jail investigative
unit) regarding Horton’s death and had reviewed the evidence gathered. The investigations revealed the following,
according to Chief Burns:
·
Horton entered
the County jail system on February 24, 2009. During intake, he reported having a history of
alcohol abuse. Medical intake personnel
did not observe any signs of substance abuse or withdrawal at the time. He denied a history of mental problems and
denied any suicide attempts or ideation.
·
On February 27, 2009, upon his return from court, Horton appeared to be under the
influence of narcotics. He admitted to a
deputy that he had smuggled Ecstasy and PCP into the jail and had taken the
narcotics at court that day. As a
result, a discipline report was prepared for Horton, and after a hearing, he
was housed in a disciplinary unit with a loss of privileges for 30 days.
·
On March 2, 2009, Horton fought with another inmate.
Nursing staff did not observe any physical injury on him at the time.
·
On March 4, 2009, a deputy found Horton roaming a hallway, claiming he was returning
from a pass. Horton refused the deputy’s
orders to face the wall while the deputy determined Horton’s correct housing
location. Horton also refused to get on
the ground when the deputy ordered. The
deputy pepper sprayed Horton and additional deputies arrived to subdue
him. Horton was transported to the
clinic where he was videotaped saying he had ingested 11 “Blue Dolphins†(a combination
of Ecstasy and PCP), which were part of the narcotics he had earlier smuggled
into custody. Horton was transported to
the hospital for treatment.
·
When he returned
to the jail from the hospital on March 5, 2009,
medical personnel screened him again, and he again denied any mental health
problems, suicide attempts, and current thoughts of suicide, and he had no
obvious signs of mental illness.
·
Due to the
incident with the deputy and being under the influence of narcotics, Horton’s
classification was changed on March 5, 2009, to “K-10,†meaning he would
be housed in a single-man cell and waist chained during movement, with all
movement accompanied by deputies.
·
A disciplinary
review board hearing was held on March 7, 2009, relating to the March 4 incident.
Horton was charged with creating a disturbance, fighting, and
insubordination. The board found the
charges substantiated and gave Horton 29 days of disciplinary segregation with
loss of privileges.
·
On March 30, 2009, Horton was in discipline module 3301 in a single-man cell. At approximately 3:59 a.m. that
day, deputies found Horton hanging with a noose around his neck in his cell. Following the investigation by homicide
detectives and an autopsy, it was determined Horton had committed suicide by
hanging.
·
During a
subsequent investigation, it was discovered the deputy responsible for
monitoring module 3301, Deputy Kidder,
period prior to Horton’s being found dead.
During that three-hour period, Deputy Kidder failed to perform half-hour
security checks of the cells as required by Department policy. He also failed to arrange for another deputy
to perform those checks.
·
In 2007, the
Department installed a barcode scanning system to ensure deputies were timely
conducting welfare checks of the cells and to deter efforts to doctor welfare
check logs after an adverse event. The
system uses permanent barcode plaques mounted at each end of every cell row in
the jail. Deputies are supposed to scan
each of the plaques as they walk the rows performing their checks. The scanner records each barcode and the time
at which the scan is performed.
·
Deputy Kidder did
not make any barcode scans and faked handwritten records of row checks for his
three-hour absence. The deputy
responsible for module 3300, however, made one scan of module 3301 during
Deputy Kidder’s absence. The deputy
responsible for module 3300 used a barcode “cheat sheet†to fraudulently scan
his welfare checks when he did not actually walk the rows and conduct the
checks. In using that cheat sheet, the
deputy mistakenly scanned the barcode for module 3301 during the time Deputy
Kidder was absent. The discovery of
these actions opened a separate line of investigation into the deputies’ circumvention
of the barcode scanning system.
The
County also submitted a March 19, 2009 commitment order (March
19 order) from the superior court in support of its motion. The March 19 order noted Horton was convicted
of violating Health and Safety Code section 11352, subdivision (a), and was
committed to state prison for a term of four years. It stated:
“Court recommends consideration for fire camp program and CDC facility
has drug treatment program.†Plaintiff’s
prelawsuit claim for damages under the Government Claims Act (Gov. Code, § 810
et seq.),
title="">[4] as well as the complaint, referred
to a March 16, 2009 order that Horton be transferred to a medical unit of
the jail for the time it would take to arrange a transfer to fire camp. The County propounded a document request on
plaintiff for “all medical orders issued by the Superior Court for examination
or treatment of decedent, John Horton, between February 25, 2009 and March 30,
2009, including but not limited to the medical order of March 16, 2009,â€
identified in the complaint and government claim. Plaintiff never produced any court-issued
medical orders in response.
Deputy Kidder’s
Motion for Summary Judgment or Summary Adjudication
By May 2011, plaintiff had identified and sued Deputy Kidder as “Doe
2.†Deputy Kidder filed a motion for
summary judgment around the same time as the County. As pertinent here, Deputy Kidder argued the
causes of action for wrongful death and negligence were barred as a matter of
law because plaintiff could not prove causation when a prisoner’s injuries
result from his own intentional conduct -- that is, his suicide. Moreover, he argued, he did not violate any civil
rights of plaintiff or Horton under Civil Code sections 43, 51.7, 52.1, because
he never had any contact with plaintiff and she could not recover for alleged
“hate crimes†against Horton.
In
support of his motion, Deputy Kidder submitted his own declaration and that of Dr. Richard
Fukumoto, a forensic pathologist retained by him to provide expert witness
services. Deputy Kidder was assigned to
module 3301 at the jail on March 29 and 30, 2009, between 10:00 p.m. and 6:00 a.m. There were seven inmates in
the module, each assigned to an individual cell, when he arrived for work at
approximately 9:45 p.m. on March 29. He performed a
check of each cell within five minutes of arriving. Deputy Kidder saw Horton in his assigned
cell; nothing appeared unusual and the deputy did not communicate with Horton. He performed another check at 10:30 p.m., and again nothing appeared unusual with Horton. At approximately 12:00 a.m. on
March 30, Deputy Kidder’s supervisor, Sergeant Clifford Yates, performed the
check on module 3301. He told Deputy
Kidder “everything look[ed] okay.â€
Deputy Kidder performed another check at 2:15 a.m., and
once again, nothing appeared unusual with Horton. At approximately 3:45 a.m., when
the deputy checked Horton’s cell, he saw Horton hanging and immediately called
for assistance. Efforts were made to
provide first aid, but Horton appeared to be deceased already. Deputy Kidder never spoke with Horton and
knew nothing about Horton prior to this lawsuit, and he asserted he knew
nothing that would indicate Horton might commit suicide.
Dr. Fukumoto
opined Horton’s death was caused by asphyxia due to self-inflicted hanging by a
cord ligature around his neck. He noted
Horton’s body displayed a ligature mark around the upper neck with tissue
damage but no fractures in the larynx or trachea. He concluded the absence of any physical
injuries to Horton’s body that would be attributable to a struggle with a third
party demonstrated the injuries to Horton’s neck were self-inflicted. Dr. Fukumoto based his opinion on a
review of a number of documents and photographs, including Horton’s autopsy
report and the report of another forensic pathologist, Dr. Howard Oliver.
Dr. Vadims
Poukens, deputy medical examiner for the County’s department of the coroner,
conducted Horton’s autopsy. Dr. Poukens
opined the autopsy findings supported a self-inflicted hanging. Horton had a ligature mark around his neck
and a small hemorrhage of a muscle close to the right lower jaw area. He also noted intra-abdominal hematoma in the
area of Horton’s kidney and liver and right back muscle hematoma, which
indicated recent blunt force torso injury.
He noted the significance and circumstances of these injuries were not
clearly established. Slides of the
liver, adrenal gland, mesentery, and kidney showed soft tissue hemorrhage or
contusion less than four hours old. Dr. Poukens
could not determine with medical certainty whether the intra-abdominal injuries
contributed directly or indirectly to Horton’s death. As a result, he ascribed Horton’s death to
“hanging and other undetermined factors.â€
Horton’s death certificate listed the cause of death as “deferred.†The death certificate and autopsy report list
Horton’s time of death as 4:05 a.m. on March 30, 2009.
Dr. Oliver
examined Horton’s body after Dr. Poukens’s autopsy. He opined Horton “succumbed to asphyxia due
to hanging.†He found “no evidence of
trauma (bruises, abrasions, lacerations, etc.)†after a “careful examinationâ€
of Horton’s body.
Plaintiff’s Oppositions
and Discovery Motions
Discovery Motions
Before filing her oppositions, plaintiff filed several motions in an
attempt to obtain more discovery or continue the summary judgment proceedings. She first filed an ex parte application to
compel the production of “the complete homicide investigation into the death of
John Horton.†The court denied the ex
parte application and stated plaintiff must file a Pitchess
name="_ftnref5" title="">[5] motion before bringing such a
motion to compel.
Plaintiff
also filed a motion to continue the summary judgment motions after successfully
shortening the time to hear such a motion.
The motion to continue was based on plaintiff’s asserted need to conduct
more discovery before filing her opposition to the motions for summary
judgment. The court heard plaintiff’s
motion to continue the summary judgment motions and her Pitchess motion on the same date.
The court denied the Pitchess
motion without prejudice for defective service on the custodian of records. It also denied the motion to continue. The next day, plaintiff refiled her
categories of documents, including the entire homicide and internal affairs
investigation files created in response to Horton’s death; all documents
related to the “‘scannergate’ scandal,†which is what plaintiff called the deputies’
circumvention of the barcode scanning system; and the entire personnel files of
Deputy Kidder, Sergeant Yates, and various other deputies. Plaintiff was required to file her
oppositions to the defense motions for summary judgment prior to the hearing on
her Pitchess motion.
Opposition to Deputy Kidder’s Motion
In opposition to Deputy Kidder’s motion for summary judgment, plaintiff
argued the cause of Horton’s death was a disputed material fact and Deputy
Kidder failed to show a lack of causation.
Plaintiff asserted the evidence showed Horton suffered serious
intra-abdominal injuries that may have contributed to his death, and it was
disputed whether he committed suicide or was beaten to death by deputies, who
were the only people who had access to him in module 3301. In the assault scenario, Deputy Kidder or other
deputies beat Horton to death and hung him to make it appear as though he
committed suicide.
In
support of her opposition, plaintiff submitted the declaration of her forensic
pathologist expert witness, Dr. Silvia Comparini. Among other things, Dr. Comparini
reviewed the autopsy report by Dr. Poukens and the Department’s homicide
report on the death of Horton. She
disagreed with Deputy Kidder’s expert witness, Dr. Fukumoto, that Horton’s
body lacked any injuries attributable to a third party struggle. She found “[s]evere signs†attributable to a
struggle. She pointed to the autopsy
report describing intra-abdominal injuries and found the injuries were
consistent with or caused by “blunt force inflicted within less than four (4)
hours old.†She opined the injuries to
Horton’s neck were not consistent with death by hanging. Instead, she found the “shallow furrow†from
the noose around the neck was most likely obtained after Horton’s death. She also noted the lack of petechial
hemorrhaging in the eyes as inconsistent with death by hanging. She found the intra-abdominal injuries along
“with the delay in immediate response and slow first care emergency in-house
facility observed during [her] visit . . . denied Horton the possibility of
survival following the assault.†Dr. Comparini
thus opined the cause of Horton’s death was internal bleeding in combination
with the failure to provide immediate medical care. She believed the time of death was earlier
than what the coroner’s report stated.
Deputy
Kidder’s separate statement had said he checked Horton’s cell at approximately 9:45 p.m. on March 29, 2009, and he saw
Horton in the cell and nothing appeared unusual. Plaintiff disputed that fact in her response
to the separate statement, stating:
“John Horton had died by 9:45 p.m. or the time Defendant
Kidder allegedly performed this security check . . . .†In support of this statement, she cited the
portion of Dr. Comparini’s declaration in which the doctor opined Horton’s
death was earlier than what the autopsy report stated. She also cited a page of Deputy Kidder’s
deposition in support of this statement, but the cited page was not included in
the package of evidence plaintiff filed with her opposition.
Also
in support of her opposition, plaintiff submitted a copy of a March 2, 2009 order from the superior court (March 2 order) noting Horton had
moved for a medical examination and ordering one to be conducted. Under the section for “[s]pecify treatment,â€
the order stated: “hallucination[,] drug
withdraw[a]l, ec[s]tasy psychosis.â€
She
additionally submitted an excerpt from the deposition of Deputy Remigius
Ezeonye, who was on duty before Deputy Kidder took over on March 29, 2009. According to the excerpt,
Deputy Ezeonye checked Horton’s record in the computer and saw he had
previously been under mental observation.
He also observed Horton acting moody and quiet that night and giving him
“not kind of pleasant eyes.†The deputy
made a note in the log book to this effect.
He also called for a “psych line†on Horton and asked that he be checked
out in the morning.
Opposition to County and Sheriff Baca’s Motion
In opposition to the County’s motion, plaintiff argued the County
was not statutorily immune to liability because an exception to immunity for
failure to provide immediate medical care applied. Plaintiff contended there was an issue of
fact regarding whether the County acted unreasonably in failing to provide
court-ordered medical attention and other care.
She asserted two theories relating to failure to provide immediate
medical care: (1) The March 2 order put
the County on notice that Horton needed immediate medical care for psychoses, but
Horton was never treated; and (2) Horton was so severely beaten that he bled to
death because of the failure to provide immediate medical care.
In
support of her opposition, plaintiff again submitted evidence of the March 2
order directing a medical examination for Horton, Dr. Comparini’s
declaration, and the excerpt from Deputy Ezeonye’s deposition, among other
things. In addition, she submitted the
declaration of Dr. James Missett, a psychiatrist who she had retained. Dr. Missett opined Horton “would appear
to have required immediate medical attention†of the sort ordered by the court
on March 2,
2009.
Dr. Missett stated the “records†failed to indicate the
court-ordered examination was ever performed.
Dr. Missett believed no medical/psychiatric assessment was
conducted at a time when such an assessment might have disclosed that Horton
suffered from a mental or emotional disorder causing him to be a danger to
himself.
Reply Brief of
Deputy Kidder
Deputy Kidder argued in his reply that plaintiff’s opposition
established he was not liable as a matter of law. This was because in response to his separate
statement, plaintiff stated Horton was already dead when Deputy Kidder started
his shift at 9:45 p.m. on March 29. He argued
he could not, therefore, have caused Horton’s death. Additionally, he argued plaintiff had no
evidence he had any contact with Horton.
He submitted a supplementary declaration stating he “never had any
physical contact with John Horton,†had “never hit, beaten, slapped, kicked,
punched or otherwise touched John Horton,†and had never opened a jail cell
housing Horton until the morning of March 30, 2009,
when Horton was already dead. In
response to Deputy Kidder’s reply, plaintiff filed a notice of errata regarding
her response to the separate statement.
She asserted her response was supposed to state Horton had died
p.m.
Reply Brief of
the County
The County argued in reply that plaintiff could not rely on the
exception to immunity for failure to provide immediate medical care because she
did not plead the exception in either her government claim or her complaint. Moreover, the County objected to the
statement in Dr. Missett’s declaration that “the records†failed to
indicate Horton received the medical examination ordered by the court in the
March 2 order. In fact, medical records
produced by the County in discovery indicated Horton was showed in response to
the March 2 order. A “Medical Services
Bureau Court Order Worksheet†indicated the court requested a medical
examination and treatment for “drug withdrawals†on March 2, 2009. The same form indicated
Horton was sent to Los
Angeles County + USC Medical Center and was
evaluated by two different doctors, one on March 4, 2009, and one on March 6, 2009. He was diagnosed with Ecstasy intoxication
and his prognosis was “good.†The
records listed his “care and treatment†as “continuing.â€
Court’s Ruling Granting
Motions for Summary Judgment
The court issued an order granting summary judgment and/or judgment
on the pleadings for the County, Sheriff Baca, and Deputy Kidder. The court held plaintiff had “submitted
expert testimony that raises a triable issue of fact whether Horton took his
own life or was the victim of an assault and/or murder by persons who allegedly
also hanged him in his cell.†But
regardless of how Horton died, the court held the moving defendants were
entitled to judgment.
In
pertinent part, the court ruled the County was protected by statutory immunity (§ 844.6,
subd. (a)(2)) against all causes of action plaintiff brought as a
representative of Horton’s estate. The
court rejected plaintiff’s reliance on the exception to immunity for failure to
provide immediate medical care. Deeming
the motion for summary judgment a motion for judgment on the pleadings, the
court found the complaint failed to allege any failure to respond to an immediate
need for medical care. Further, the
March 2 order failed to raise a triable issue as to any failure to provide immediate
medical care. Similarly, Deputy
Ezeonye’s testimony that Horton was quiet and moody on March 29 did not raise a
triable issue as to the need for immediate medical care.
As
to Deputy Kidder’s motion, the court ruled plaintiff failed to raise a triable
issue of fact on causation. Citing to
Cal.App.3d 341, the court held an inmate’s act of committing suicide was an
intervening, intentional act that superseded any alleged negligence by jailers. Even if Horton had not committed suicide but
had died as a result of an assault, the court held plaintiff had not proffered
any evidence that Deputy Kidder was somehow involved in the assault. Without that evidence, the alleged assault
operated as an intentional act that superseded Deputy Kidder’s alleged
negligence. Additionally, plaintiff
agreed Deputy Kidder reported to work at 9:45 p.m. on March 29 and stated
in her response to the separate statement that Horton had died by 9:45 p.m. Accepting this admission, the
court found Deputy Kidder could not have caused Horton’s death, if he was dead
before Deputy Kidder reported to work.
The court struck plaintiff’s notice of errata -- which stated her
response to the separate statement was in error and should have said Horton
died by 3:45 a.m., not 9:45
p.m. -- as an untimely alteration of a
material fact.
Additionally,
as to the failure to provide immediate medical care, there was no evidence
Deputy Kidder knew or had reason to know Horton needed immediate medical care
and failed to provide it. Regarding the
cause of action for violation of civil rights, the court agreed with Deputy Kidder
that plaintiff could not recover any damages for “hate crimes†against Horton
or plaintiff. The court found it undisputed
that Deputy Kidder had no contact with plaintiff and did not know her.
Court’s Ruling
on Pitchess
Motion
The court heard argument on plaintiff’s Pitchess motion the same day it heard argument on the defense
summary judgment motions. At argument,
plaintiff’s counsel conceded the County had produced one category of requested documents
-- the homicide investigation file. The
court denied the motion except as to the personnel files for Deputy Kidder,
Sergeant Yates, and three other deputies who were on duty the night of Horton’s
death. The court ruled any documents in
these deputies’ files relating to the internal affairs investigation into
Horton’s death might be discoverable and set a date for an in camera hearing to
review the personnel files with the Department’s custodian of records. After conducting the in camera hearing, the
court ordered the County to produce transcribed interviews with Deputy Kidder,
Sergeant Yates, and one other deputy found in the officers’ personnel files. After the court announced its ruling,
plaintiff’s counsel asked whether there were any “relevant findings issued in
the personnel files†that would be produced.
The court responded in the negative and stated it did not think
“findings were matters that are appropriate to produce.â€
STANDARDs OF REVIEW
We
review the trial court’s ruling on a Pitchess motion for abuse of
discretion. (People v. Collins
(2004) 115 Cal.App.4th 137, 151.) Likewise,
we review for abuse of discretion the court’s ruling on a motion to continue
summary judgment proceedings under Code of Civil Procedure section 437c,
subdivision (h). (Rodriguez v. Oto
(2013) 212 Cal.App.4th 1020, 1038.)
Defendants
may move for summary judgment when they contend an action has no merit. (Code Civ. Proc., § 437c, subd.
(a).) The defendants have met their
burden of showing a cause of action is meritless if they demonstrate one or
more elements of the cause of action cannot be established or there is a
complete defense to the cause of action.
(§ 437c, subd. (p)(2).) Once
the defendants have met that burden, the burden shifts to the plaintiff to set
forth specific facts showing a triable issue of material fact. (Ibid.) The court shall grant the motion for summary
judgment if all the papers submitted show there is no triable issue as to any
material fact and the moving party is entitled to judgment as a matter of
law. (§ 437c, subd. (c).)
“An
issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation,
conjecture, imagination or guess work.’â€
(Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196.) A genuine issue of fact exists if, and only
if, the evidence would allow a reasonable juror to find the underlying fact in
favor of the party opposing summary judgment.
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)
We
review the grant of summary judgment de novo, applying the same legal standard and
analysis as the trial court in determining whether any genuine issues of
material fact exist or whether the moving party is entitled to judgment as a
matter of law. (PCO, Inc. v.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007)
150 Cal.App.4th 384, 390.) We accept as
true the facts shown by the losing party’s evidence and reasonable inferences
from that evidence, and we resolve evidentiary doubts or ambiguities in the
losing party’s favor. (
Cal.4th 763, 768; Sada v. Robert F.
Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148.)
To the extent
the court construed and granted the defense motions as motions for judgment on
the pleadings, we review that determination de novo, meaning we independently
decide whether the complaint is legally sufficient to state a cause of action. (Kapsimallis
v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) “A judgment on the pleadings in favor of the
defendant is appropriate when the complaint fails to allege facts sufficient to
state a cause of action. (Code Civ.
Proc., § 438, subd. (c)(3)(B)(ii).)†(
the complaint as true and liberally construe those allegations with a view to
attaining substantial justice between the parties. (Mendoza v. Continental
Sales Co. (2006) 140 Cal.App.4th 1395, 1401.) When liberally construing allegations, we may
also draw reasonable inferences from the facts pled. (Ibid.) “‘“Our primary task is to determine whether
the facts alleged provide the basis for a cause of action against defendants
under any theory.â€â€™â€ (Ibid., quoting Alliance Mortgage Co. v.
Rothwell (1995) 10 Cal.4th 1226, 1232.)
discussion
Timeliness of
Appeal
As a preliminary matter, the County contends plaintiff’s notice of
appeal is untimely. We hold
otherwise. The court filed the order
granting summary judgment or judgment on the pleadings on February 1, 2012. The County and Sheriff Baca
served plaintiff with notice of the ruling on February 9, 2012. Also attached to the notice
was a minute order dated February 1, 2012, which stated the court had
ruled on the defense motions for summary judgment and had “sign[ed] and file[d]
the judgment this date.†The minute
order contained the clerk’s certificate of mailing stating the clerk had
“served Notice of Entry of the above minute order†upon the parties.
The
record does not contain a separate judgment dated February 1, 2012, and the docket does not show a judgment entered on or around that
date. On April 24, 2012, the County and Sheriff Baca served plaintiff with notice and a
copy of an “amended judgment†in favor of the County, Sheriff Baca, and Deputy
Kidder, entered on March 13, 2012. This March 13 judgment appears on the
docket as “Judgment (Amended Judgment),†and no judgment appears in the docket
before that. Plaintiff filed her notice
of appeal on May 11,
2012.
The
County argues the time to appeal began running on February 1, 2012, when the clerk served plaintiff with notice of the minute order
stating the judgment was signed and filed on that date. The County admits it is not aware of a
separate judgment signed by the trial court on February 1, and indeed,
there is no evidence in the record of such.
We decline to construe the minute order as a judgment. It falls short because it contains no express
declaration of the ultimate rights of the parties, such as “‘“plaintiff shall
take nothing.â€â€™â€ (Davis v. Superior
Court (2011) 196 Cal.App.4th 669, 673.) The March 13 “amended†judgment, by contrast,
contains an express declaration of the ultimate rights of the parties. (“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
Plaintiffs shall take nothing by their complaint in this matter as against defendants County of Los Angeles,
Christopher Kidder and Leroy Baca . . . .â€) Furthermore, the minute order does not even
purport to be the judgment, but merely refers to a separate (and apparently
nonexistent) judgment.
The
March 13 amended judgment is the judgment for our purposes. Plaintiff received notice of that on April 24, 2012. Her notice of appeal on May 11, 2012, was therefore timely. (Cal.
Rules of Court, rule 8.104, subd. (a)(1)(B).)
Pitchess Motion
and Motion to Continue
Plaintiff contends the court erred in denying the
conclusions and findings of internal affairs investigators, and (2) documents
relating to the scannergate scandal. She
also contends the court erred in denying her motion to continue the summary
judgment. We are not persuaded.
A trial court
has broad discretion in determining what to disclose pursuant to a
court’s determination only on a showing of abuse of discretion. (Haggerty
v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) According to Evidence Code section 1045,
subdivision (a), parties have a “right of access to records of complaints, or
investigations of complaints . . . concerning an event or transaction
in which the peace officer or custodial officer†at issue participated,
“provided that information is relevant to the subject matter involved in the
pending litigation.†While plaintiff
argues the internal affairs investigators’ conclusions and findings were
relevant, she cites no authority to support this assertion. In fact, the case she cites held the law
enforcement department in an excessive force lawsuit did not have to disclose portions of an internal affairs file
representing the investigating officer’s analysis and conclusions. (Haggerty
v. Superior Court, supra, at p. 1088 [“There is nothing contained in
the officer’s subjective impressions of the facts found during the
investigation that would be admissible at trial or lead to the discovery of
admissible evidence.â€].) If this were a
criminal proceeding, the Pitchess
statutory framework would absolutely preclude the disclosure of any
investigating officer’s conclusions. (Evid.
Code, § 1045, subd. (b)(2).) Plaintiff’s
conclusory assertions that the investigating officers’ subjective conclusions
and findings were relevant do not demonstrate an abuse of discretion. Likewise, plaintiff has not demonstrated
error with respect to the scannergate documents. Again, her argument consists only of a
conclusory assertion that the scannergate documents were “relevant and
essential†to her opposition, without any explanation as to why.
Neither has
plaintiff demonstrated the court erred in denying her motion to continue. Plaintiff again asserts the court abused its
discretion without much further argument or citation to authority. She also fails to include in the record a
transcript of the hearing on the motion to continue, and the minute order
containing the ruling states merely that the motion was “argued and
denied.†We may reject plaintiff’s
contention for these failures alone. (
(1999) 21 Cal.4th 121, 132 [rejecting parties’ claim for failure to provide an
adequate record demonstrating error]; McComber
v. Wells, supra, 72 Cal.App.4th 512, 522 [treating contentions as waived when
unsupported by legal argument and citation to authority].)
Even
disregarding these failures, plaintiff has not demonstrated error. We review the court’s denial of a continuance
for abuse of discretion. (
Cal.App.4th 246, 254.) The summary
judgment statute provides: “If it
appears from the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication or both that facts essential to justify
opposition may exist but cannot, for reasons stated, then be presented, the
court shall deny the motion, or order a continuance to permit affidavits to be
obtained or discovery to be had or may make any other order as may be just.†(Code Civ. Proc., § 437c, subd. (h).) Lack of diligence is a ground for denying a
request for continuance. (Cooksey v.
Alexakis, supra, at p. 257.) “Although the statute does not expressly
mention diligence, it does require a party seeking a continuance to declare why
‘facts essential to justify opposition . . . cannot, for reasons
stated, then be presented’ ([Code Civ. Proc.,] § 437c, subd. (h),
italics added), and courts have long required such declarations to be made in
good faith. [Citations.] There must be a justifiable reason why the
essential facts cannot be presented. An
inappropriate delay in seeking to obtain the facts may not be a valid reason
why the facts cannot then be presented. . . . [Citation.]
A good faith showing that further discovery is needed to oppose summary
judgment requires some justification for why such discovery could not have been
completed sooner.†(Ibid.)
Here,
plaintiff demonstrated a lack of diligence. Evidence the County submitted showed plaintiff
had previously requested the materials at issue in discovery. Specifically, plaintiff requested (1) all
documents regarding “the Department of Internal Affairs investigation of the
death of†Horton; (2) all documents regarding “the Department of Internal
Affairs investigation of Deputy Christopher Kidder’s row checks on March 30,
2009â€; (3) all documents regarding “the Department of Internal Affairs
investigation of the bar code scanning system concerning the row checks on
March 30, 2009â€; and (4) all documents regarding “any actual knowledge†or “any
constructive knowledge†of the Department from March 4, 2009, to March 30, 2009,
“that Deputy Christopher Kidder was not performing all the required row checks.†On June 17, 2011,
the County served responses to these requests objecting to them on numerous
grounds and stating it would not produce documents. Plaintiff waited nearly six months, and until
after the defendants had filed their summary judgment motions, to file the
documents, even though she realized her claimed need for them much earlier. And plaintiff has not explained why she did
not move the court for these documents sooner.
Under these circumstances, we cannot say the court abused its
discretion. We turn now to the court’s
summary judgment rulings.
Summary Judgment
or Judgment on the Pleadings for the County Was Not Proper
The trial court granted summary judgment and/or judgment on the
pleadings for the County on the ground that it was immune from liability. The Government Claims Act (§ 810, subd. (b)) governs
all actions against public entities and public employees. (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 182; County of Los Angeles v. Superior Court (2005) 127
Cal.App.4th 1263, 1267.) “[T]he very
purpose of the [Government Claims] Act is to afford categories of immunity
where, but for its provisions, public agencies or employees would otherwise be
liable under general principles of law.â€
(Caldwell v. Montoya (1995) 10 Cal.4th 972, 985.) The Legislature enacted it “to confine
potential governmental liability to rigidly delineated circumstances,†not to
expand plaintiffs’ rights against governmental entities. (Munoz v. State of California (1995)
33 Cal.App.4th 1767, 1776.)
Under
the Government Claims Act, specifically section 844.6, “a public entity is not
liable for . . . [¶] . . . [a]n injury to any
prisoner.†(§ 844.6, subd. (a)(2).) A “public entity†includes any county of the
state, and a “prisoner†includes an inmate of a jail. (§§ 811.2, 844.) The term “injury†includes death, injury to a
person, “or any other injury that a person may suffer to his person,
reputation, character, feelings or estate, of such nature that it would be
actionable if inflicted by a private person.â€
(§ 810.8.) This governmental
immunity applies to any tortious conduct, whether intentional or negligent. (Richardson-Tunnell
v. School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056,
1062; Wright v. State of
Further, specific statutory immunity generally prevails over any
liability created by statute outside of the Government Claims Act, including those
Civil Code sections under which plaintiff claims civil rights violations (Civ.
Code, §§ 51.7, 52). (
(2009) 181 Cal.App.4th 218, 231; Gates v.
Superior Court (1995) 32 Cal.App.4th 481, 510, 512.) Moreover, under section 844.6, a public entity
is immune to liability for wrongful death in an action brought by a prisoner’s
heirs. (May v. County of Monterey
(1983) 139 Cal.App.3d 717, 720-721.) “In
sum, section 844.6 says that a prisoner who experiences an injury which
otherwise would be actionable for the reason that he is a prisoner may not
recover against the public entity. Section
844.6 does not concern itself with either the type of duty which may be
breached or with kinds of injury which may be suffered; it concerns itself only
with status as a prisoner and with injuries which, but for that status, would
give rise to a cause of action.†(Hart
v. County of Orange (1967) 254 Cal.App.2d 302, 306.)
Plaintiff
advances two arguments on appeal to defeat the County’s immunity. First, she argues section 844.6 “is
unconstitutional to the extent it provides immunity to a public entity for
inflicting cruel and unusual punishment in violation of Article I, section 17
of the California Constitution and the Eighth Amendment.†Second, she urges us to apply the statutory exception
to immunity for failure to provide immediate medical care.
Although we do
not find her Eighth Amendment argument to be persuasive, we agree the County is
not entirely immune to suit because plaintiff adequately alleged an exception
in the failure to summon immediate medical care. Accordingly, the County was not entitled to
judgment on the wrongful death and negligence causes of action.
Constitutionality of Section 844.6
Plaintiff does not cite any authority for the specific proposition
that section 844.6 is unconstitutional as a violation of a prisoner’s right
against cruel and unusual punishment.
The plain language of the statute does not impose any punishment. Indeed, it is not a punitive statute
contained in the Penal Code. What
plaintiff seems to argue is that, when applied to a situation in which deputies
battered Horton, the statute would permit cruel and unusual punishment. But in such a case, the deputies’ purported
actions inflicted the alleged cruel and unusual punishment, not the statute
providing for immunity.
Plaintiff’s only
support for her argument that section 844.6 is unconstitutional is a citation
to the United States Supreme Court case, Hudson
v. McMillian (1992) 503 U.S. 1, 7-8 (Hudson).
under title 42 United States Code section 1983, and the prisoner alleged the
officers violated the Eighth Amendment proscription against cruel and unusual
punishment. (Hudson, at p. 4.) The
court “decide[d] whether the use of excessive physical force against a prisoner
may constitute cruel and unusual punishment when the inmate does not suffer
serious injury.†(Ibid.) The case did not
involve the application of an immunity statute to the prisoner’s claim. And unlike the plaintiff in
the Eighth Amendment or the California Constitution’s proscription against
cruel and unusual punishment. Plaintiff
has forfeited the contention because she has not cited any authority besides
v. Wells, supra, 72 Cal.App.4th at p. 522.)
Section 845.6 Exception to Immunity
On the other hand, plaintiff adequately stated a violation of the
duty to summon immediate medical care under section 845.6, for which the County
is not immune. Section 845.6 immunizes
public entities and public employees “for injury proximately caused by the
failure of the employee to furnish or obtain medical care for a prisoner in his
custody,†except that “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.â€
Section
845.6 creates limited public entity liability.
(Castaneda v. Department of
Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1070 (
neither privately nor publicly, an obligation of help.†(Hart
v. County of Orange, supra, at p. 306
Under the circumstances set forth in section 845.6, “a duty of
‘reasonable action to summon’ medical care is created.†(Hart
v. County of Orange, at p. 306.)
Here, the trial court
found plaintiff’s complaint did not allege any failure to respond to an
immediate need for medical care, and the County was therefore entitled to
judgment on the pleadings. We disagree. The court considered only plaintiff’s theory
that Horton evidenced a need for medical care relating to psychosis and had he been
treated, he would not have committed suicide.
If this were all plaintiff alleged, we might agree with the trial
court’s conclusion.
name="_ftnref6" title="">[6] But plaintiff’s separate
theory that deputies assaulted and battered Horton also included the theory
that they failed to summon immediate medical care after the battery, and the
trial court’s order did not expressly consider this theory as it related to
summoning medical care. Under this
theory, the County was not entitled to judgment on the pleadings or summary
judgment.
The County
contends the complaint frames the issues on summary judgment, and plaintiff did
not plead a violation of section 845.6 in the complaint. It further argues she did not allege such a
violation in her prelawsuit claim, also entitling the County to judgment. Preliminarily, the County has a too narrow
view of the claims presentation requirement.
The Government Claims Act requires that any civil complaint for money or
damages be first presented to and rejected by the relevant public entity in a
claim for damages. (Brownell v. Los
Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 793.) The claim must fairly reflect each theory of
recovery alleged in the lawsuit, or the complaint is
vulnerable to a demurrer or motion for judgment on the pleadings. (Id.
at pp. 793-794.) The claim must state,
among other things, the date, place and “other circumstances of the occurrenceâ€
that gave rise to the claim and a general description of the “indebtedness,
obligation, injury, damage or loss incurred so far as it may be known at the
time of presentation of the claim.†(§ 910,
subds. (c)-(d).) The purpose of the claims
presentation requirement is to give “the public entity the opportunity to
evaluate the merit and extent of its liability and determine whether to grant
the claim without the expenses of litigation.â€
(Crow v. State of California (1990) 222 Cal.App.3d 192, 202.) The claims presentation requirement also
informs the public entity of potential liability for purposes of budgeting. (Munoz
v. State of California, supra, 33 Cal.App.4th at p. 1776.)
While a
plaintiff may not maintain a theory of liability not reflected in a claim, the
claims presentation requirement is not designed to defeat meritorious lawsuits
when a claim’s purposes have been satisfied. (Stockett v. Association of Cal. Water
Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446 (
technically perfect; it need only substantially comply with the statutory
requirements. (See, e.g., Connelly v.
County of Fresno (2006) 146 Cal.App.4th 29, 38.) In addition, the courts should construe claims
liberally; the former rule of strict and literal compliance with the Government
Code’s claims presentation rules has now “disappeared from California law.†(Cf. Munoz
v. State of California, supra, 33 Cal.App.4th at p. 1778
[petition for relief from claims filing statutes’ procedural requirements]; see
also Stockett, supra, at p. 449
[“‘[W]e are mindful that “[s]o long as the policies of the claims statutes are
effectuated, [the statutes] should be given a liberal construction to permit
full adjudication on the merits.â€â€™â€].) “The
test for substantial compliance is whether the face of the filed claim
discloses sufficient information to enable the public entity to make an adequate
investigation of the claim’s merits and settle it without the expense of
litigation.†(Connelly v. County of
Fresno, supra, at p. 38.)
In this case,
plaintiff’s claim substantially complied with the claims presentation
requirements. The claim provided enough
information for the County to conduct an investigation and evaluate the merits
of plaintiff’s claims. The claim was
part of the summary judgment record. Under
a heading titled, “Date, Place & Circumstances Surrounding the Claim,â€
plaintiff alleged that on or about March 30, 2009, Horton was in solitary
confinement in the men’s central jail, and “doe†deputies “facilitatedâ€
Horton’s death by, among other things, assaulting and battering Horton, using
excessive and deadly force against him, and allowing his death, “which was
preventable.†Plaintiff further claimed the
County’s and the deputies’ actions or omissions were the proximate and legal
cause of Horton’s death. Plaintiff
claimed they were thus liable for the wrongful death of Horton. These claims that deputies battered Horton
and caused his death on March 30, 2009, were
sufficient to prompt a meaningful investigation into the circumstances,
including whether deputies battered him and
how they acted afterward. If an investigation
determined there was a battery, any reasonable investigator would have asked whether
they left Horton without medical care after the battery, which would have
allowed the County to evaluate its potential liability for failure to immediately
summon medical care. Especially in view
of the liberal construction we should apply to Government Claims Act claim
forms, plaintiff’s claim was sufficient.
Moving beyond
the prelawsuit claim, insofar as the County contends the complaint did not
sufficiently plead failure to summon immediate medical care, we also reject
this argument. Because Government Claims
Act liability is based on statute, a plaintiff must plead liability under the
Act with particularity. (
(1985) 40 Cal.3d 780, 795 (Lopez);
577, 585.) This means “the plaintiff
must set forth facts in his [or her] complaint sufficiently detailed and
specific to support an inference that each of the statutory elements of
liability is satisfied. General
allegations are regarded as inadequate.â€
(Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.)
But these “rules
do not deprive the plaintiff of the benefit of the general principle that the
courts should liberally construe a complaint†with a view to attaining
substantial justice between the parties, in considering whether to grant
judgment on the pleadings. (Van Alstyne,
Cal. Government Tort Liability Practice (Cont. Ed. Bar 1992) § 8.49; see also
governmental tort cases “the rule is liability, immunity is the
exception†. . . . [And]
[u]nless the Legislature has clearly provided for immunity, the important
societal goal of compensating injured parties for damages caused by willful or
negligent acts must prevail.’†(
Mindful of these
principles, we conclude the complaint was sufficiently particular. The allegations were detailed enough to support
a reasonable inference the elements of liability were met. The allegations of the complaint were similar
to the allegations of the Government Code claim. The complaint alleged Horton was in solitary
confinement in the men’s central jail, and on or about March 30, 2009, officers acting within the scope of their employment, “for no
justified reason and for no lawful justification, physically abused, assaulted, . . .
and/or facilitated the hanging death of John Horton.†The complaint also alleged officers
“negligently, carelessly, recklessly, intentionally and/or wantonly assaulted
or caused to be assaulted, [and] battered John, and/or used excessive deadly force
against him and/or allowed his death which was preventable had the Sheriffs
been adequately trained, supervised and/or managed,†and the officers’ actions
and omissions were the proximate cause of Horton’s death. Moreover, it alleged the defendants breached
their duty of care to Horton by, “including but not limited to, failing to
protect John Horton.â€
From these
specific allegations regarding the time, place, nature, and result of the
attack, and the allegation officers “facilitated†Horton’s hanging, one may reasonably
infer the alleged perpetrators not only attacked Horton but left him without
summoning immediate medical care ‑‑ else he would not have been
found hanging but would have received care before that point. One may also reasonably infer from these
alleged facts that the perpetrators, as the persons who committed a battery
severe enough to cause death, had reason to know the victim needed immediate
medical care after their actions. This
is all section 845.6 requires ‑‑ that public employees acting within
the scope of their employment knew or had reason to know the prisoner needed
immediate medical care, and they failed to summon such care. The complaint may be inartfully drafted; it
is not, however, fatally defective for failure to be particular. All the facts necessary for the County’s
alleged liability are there or may be readily and reasonably inferred. These facts formed the basis for either
plaintiff’s negligence cause of action, in which the duty breached was the duty
to summon immediate medical care, or her wrongful death cause of action, in
which the failure to summon immediate medical care satisfied the “tort or
wrongful act†element of the cause of action.
(See Lucas v. County of Los
Angeles (1996) 47 Cal.App.4th 277, 283-284 [claim of failure to summon
immediate medical care for prisoner alleged under negligence and wrongful death
causes of action]; Hart v. County of
Orange, supra, 254 Cal.App.2d at
p. 303 [claim of failure to summon immediate medical care for prisoner
alleged under wrongful death cause of action]; 5 Witkin, Cal. Procedure (5th
ed. 2008) Pleading, § 938, p. 352 [among essential elements of wrongful death
are a tort or wrongful act].)
Thus, the County
is not assisted by its frequent citation to cases holding the complaint frames
the issues for summary judgment, and the plaintiff may not avoid summary
judgment by relying on facts or theories not alleged in the complaint. Failure to summon immediate medical care was
an issue framed by this complaint.
Moreover, any claim the County might make to surprise at plaintiff’s
reliance on the failure to summon immediate medical care during summary
judgment proceedings would ring hollow.
Though the record before us does not include much of the parties’
discovery materials, we see at least one instance in which plaintiff served
discovery responses raising this issue.
In November 2010, nearly one year before the County filed its summary
judgment motion, plaintiff served on the County responses to interrogatories stating: “They beat him [(Horton)] according to the
autopsy, they broke his cartilage form [sic]
his nose, his liver was busted 4 hrs. prior to his death, blunt force trauma to
his kidney, muscle in his back, gash on his forehead, shoulder, and
pancreas. [¶] . . . Then they gave him no medical attention until after his death.†(Italics added.)
The County was
not entitled to judgment on the
| Description | Plaintiff Helen Jones brought this action individually and as personal representative of the estate of her son, John Horton. Horton died in March 2009 while incarcerated at the Los Angeles County Sheriff’s Department, Men’s Central Jail. Plaintiff filed a complaint in February 2010 against the County of Los Angeles (County), Sheriff Leroy Baca, and doe defendants. She later identified and sued Deputy Christopher Kidder as a doe defendant. The County and Sheriff Baca filed a motion for summary judgment. Deputy Kidder filed a separate motion for summary judgment. The trial court granted summary judgment or judgment on the pleadings for all three defendants, and plaintiff appealed. We affirm in part and reverse in part. The judgment for Sheriff Baca is affirmed. The judgment for the County on causes of action for wrongful death and negligence is reversed. As well, the judgment for Deputy Kidder on the causes of action for wrongful death, negligence, and violation of civil rights is reversed. In all other respects, we affirm. facts and procedure |
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