Jones v. Penhollow
Filed 1/31/14 Jones v.
Penhollow 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opinion has not been certified for publication or ordered published for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.
WILLIAM
PENHOLLOW et al.,
Defendants and Respondents.
B243057
(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.
* *
* * * *
Plaintiff
Helen Jones brought this action individually and as
son, John Horton. Horton died in March 2009
while incarcerated at the Los Angeles County Men’s Central Jail. Plaintiff filed a
the County of Los Angeles (County), Sheriff Leroy Baca, and doe defendants. She later identified and sued Deputy William
Penhollow and Sergeant Cliff Yates as doe defendants. Deputy Penhollow and Sergeant Yates filed a
joint motion for summary judgment, which the court granted.
Plaintiff
limits the issues on appeal to the court’s ruling on causes of action for
wrongful death, violation of civil rights, and negligence against both Deputy
Penhollow and Sergeant Yates. As well,
she argues the court erred in ruling for Sergeant Yates on a negligent
supervision cause of action. We affirm
in part and reverse in part. The judgment
for Sergeant Yates on the negligence
cause of action is affirmed but reversed with respect to Deputy Penhollow. The judgment for both officers on the
wrongful death and violation of civil rights
negligent supervision cause of action is also reversed.
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 mental health state of 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. Plaintiff alleged all causes of action
against all defendants and alleged she brought the action both individually and
as a representative of Horton’s estate.
As
discussed in the introductory paragraph, plaintiff limits the issues on appeal
such that intentional infliction of emotional distress is not at issue. Our summary of the facts and procedure is
therefore limited to that information necessary to evaluate her contentions on
appeal.
Motion for
Summary Judgment or Summary Adjudication
Deputy
Penhollow and Sergeant Yates filed a joint motion for summary judgment or summary
adjudication in January 2012 and argued, in pertinent part, that they did
not cause Horton’s death, whether he died of a self-inflicted hanging or was
beaten to death, and this lack of causation defeated the negligence and
wrongful death causes of action.
action for violation of civil rights failed because plaintiff could not show
violations of the statutes on which she relied; Civil Code section 51 applied
only to business establishments, and sections 51.7 and 52.1 required a showing
that the officers subjected Horton to violence or intimidation, which they did
not. They also asserted the cause of
action for negligent supervision failed because only an employer could be
liable under this theory, not individual supervisors.
In
support of their motion, the officers 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 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 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.
·
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 had left his station for a three-hour period prior to
Horton’s being found dead. During that
three-hour period, the deputy 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.
·
The deputy
responsible for module 3301 did not make any barcode scans during his
three-hour absence the night Horton died.
The
officers also submitted the declarations of Deputy Kidder and their own
declarations in support of their motion.
Deputy Kidder was the deputy assigned to module 3301 on March 29
and 30, 2009, from 10:00
p.m. to 6:00 a.m. There were seven inmates in module 3301, each
assigned to a single-man cell. He
arrived for work at approximately 9:45 p.m. on March 29 and
conducted a security check of the module right after arriving. He also performed security checks at 10:30 p.m. and 2:15
a.m.
Each time, he saw Horton in his cell and nothing appeared unusual. At 3:45 a.m. on March 30, he
was performing a security check of module 3301 and saw Horton hanging in his
cell. He immediately yelled to a nearby
module for assistance. Efforts were made
to provide first aid, but Horton appeared to be already deceased.
Sergeant
Yates was assigned to the 3000 floor of the jail from 9:30 p.m. on March 29, 2009, to 5:30 a.m. on March 30, 2009. His duties included supervising the deputies
who worked the floor and checking and signing the log books in each module once
per night. At approximately 12:09 a.m. on March 30, he gave Deputy Kidder permission to go on a “chow
run.†When a deputy left his post for
any period of time, the deputy was responsible for arranging for another deputy
to supervise his or her module during his absence. Sergeant Yates later learned Deputy Kidder
did not arrange coverage for module 3301 during his absence. After granting Deputy Kidder permission to
leave at 12:09 a.m., Sergeant Yates walked module 3301 and observed Horton in his cell. He did not notice anything unusual at that
time. That was the only occasion when
Sergeant Yates was in module 3301 that evening until approximately 3:45 a.m., when he heard a request over the radio for a nurse and gurney in
module 3301. He immediately responded to
module 3301 and observed deputies moving Horton out of his cell and the nursing
staff arriving. He notified the watch
commander on duty of the incident.
Sergeant Yates stated he did not “have any physical altercation with,
assault, batter, strike, kick or otherwise physically injure Mr. Horton,â€
and at no time did he “observe anyone (custody official, inmate or anyone else)
have any physical altercation with, assault, batter, strike, kick or otherwise
physically injure Mr. Horton.†The
sergeant also asserted that, as a floor sergeant, he was not responsible for
the hiring, training, or decisions concerning the discipline of any other
employee.
Deputy
Penhollow was assigned to module 3300 on March 29 and March 30, 2009. Sometime shortly after midnight on March 30, Deputy Kidder asked Deputy Penhollow to go on a
“chow run†with him to get food for themselves and other deputies on the 3000
floor of the jail. Deputy Penhollow was
away from module 3300 for approximately two hours or less while on the “chow
run.†He returned at approximately 1:45 a.m. At approximately 3:45 a.m., he heard Deputy Kidder yell for him to go to module 3301, and when
he got to module 3301, Deputy Kidder said he had a “hanger.†Deputy Penhollow then followed Deputy Kidder
to the cell where he observed Horton hanging by a noose tied to an air vent. Another deputy brought scissors and they
entered the cell, where Deputy Penhollow held Horton while the third deputy cut
the ligature. They placed Horton on the
ground. Deputy Penhollow felt for a
pulse but could not find one. Horton’s
body was cold and rigid. The nursing
staff arrived in less than five minutes, and Deputy Penhollow returned to
module 3300 to complete his shift. Deputy Penhollow stated he did not enter module
3301 or have any contact with Horton at any time on March 29 and 30,
except at approximately 3:45
a.m. on March 30 when summoned by
Deputy Kidder. A question later arose
regarding whether Deputy Penhollow had been in module 3301 prior to 3:45 a.m. on March 30 because scanner logs indicated he had scanned the
barcode plaque in module 3301 at 11:06 p.m. on March 29, 2009. Deputy Penhollow explained
he used a barcode “cheat sheet†to attempt to document a security check of
module 3300, when he had not actually walked the module and conducted the
check. Instead of using the cheat sheet
for module 3300, he mistakenly scanned the cheat sheet for module 3301 at 11:06 p.m. Deputy Penhollow asserted he
did not “have any physical altercation with, assault, batter, strike, kick or
otherwise physically injure Mr. Horton,†and at no time did he “observe
anyone (custody official, inmate or anyone else) have any physical altercation
with, assault, batter, strike, kick or otherwise physically injure Mr. Horton.†The deputy also asserted that he was not
responsible for the hiring, training, or decisions concerning the discipline of
any other employee.
In
support of their motion, the officers also submitted the declaration of Dr. Richard
Fukumoto, a forensic pathologist retained by the defense to provide expert
witness services. Dr. Fukumoto
opined Horton’s death was caused by asphyxia due to self-inflicted hanging with
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 Department of the Coroner,
conducted Horton’s autopsy. 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 contusions 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. At the
same time, Dr. Poukens opined the findings supported a self-inflicted
hanging. As a result, he ascribed
Horton’s death to “hanging and other undetermined factors.†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
Opposition
In opposition, plaintiff argued disputed issues of material fact
existed regarding whether Deputy Penhollow and Sergeant Yates caused Horton’s
death. Plaintiff argued only three
people had access to Horton the night he died ‑‑ Deputy Kidder,
Deputy Penhollow, and Sergeant Yates. She
asserted there was evidence the officers used excessive force on Horton the
night he died. Even if Sergeant Yates or
Deputy Penhollow did not use excessive force, she argued they would have heard any
assault because their posts were close by.
She also contended an individual supervisor such as Sergeant Yates could
be liable for negligent supervision if he knew or should have known officers
under his supervision were unfit for duty.
In
support of her opposition, plaintiff relied on her forensic pathologist expert,
Dr. Silvia Comparini. Plaintiff had
filed Dr. Comparini’s declaration several months earlier in connection
with separate motions for summary judgment brought by the County and Deputy Kidder. Plaintiff relied on this same declaration as
well as a supplemental declaration filed with her opposition to Deputy
Penhollow and Sergeant Yates’s motion.
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 the defense’s expert, Dr. Fukumoto,
that Horton’s body lacked any injuries attributable to a third party
struggle. She found “[s]evere signsâ€
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 because of Horton’s body temperature and
level of rigor mortis. Dr. Comparini
opined in her initial declaration that Horton’s intra-abdominal injuries
“occurred no sooner than 48 hours before the time he was found dead.†In her supplemental declaration, she referred
to this statement and explained, “My opinion has not changed, but the manner in
which I previously expressed my opinion appears to have been confusing and open
to an incorrect interpretation which does not represent my opinion.†Specifically, Horton’s intra-abdominal
injuries “occurred no
before the time†he was found dead, “and no injuries which John Horton
more than 48 hours prior to his death caused his death.†She noted this clarification was consistent
with her opinion stated in the initial declaration that Horton’s
intra-abdominal injuries were inflicted within four hours of his death.
Court’s Ruling Granting
Motion for Summary Judgment
The
court filed an order granting the officers’ motion for summary judgment on April 30, 2012. The court ruled Deputy Penhollow’s
and Sergeant Yates’s declarations shifted the burden of proof to plaintiff on
the causation element of the causes of action for wrongful death and
negligence. It found that although
plaintiff had raised a triable issue of fact regarding whether Horton committed
suicide or died as a result of a beating, she failed to introduce any evidence
the officers were involved in a beating. Regardless of whether Horton was beaten to
death or committed suicide, the court reasoned either circumstance was an intentional
act that superseded any alleged negligence on the part of the officers. As to the cause of action for violation of
civil rights, the court concluded claims under Civil Code section 52.1 were
limited to alleged violations of constitutional rights accomplished by threats,
intimidation, and coercion, and there was no evidence the officers had engaged
in such conduct here. The court ruled
for Sergeant Yates on the negligent supervision cause of action, reasoning that
an individual supervisor, as distinct from an employer, cannot be liable for
the conduct of employees under his or her supervision. Alternatively, the court found that, because
there was no triable issue of fact as to any wrongdoing on the part of the
supervised deputies (Deputy Kidder and Deputy Penhollow), there could be no
triable issue of fact regarding the sergeant’s alleged negligent supervision of
them.
Plaintiff
filed a notice of appeal from the court’s order granting summary judgment. An appeal lies from the judgment entered after
the court’s order, not from the order itself.
(Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th
11, 14, fn. 1.) Accordingly, we directed
plaintiff to obtain a judgment and file a conformed copy with this court. She has done so, and we now deem the appeal
to be from the judgment. (
STANDARD OF REVIEW
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.)
discussion
Trial Court’s
Rulings on Evidentiary Objections
Preliminarily, plaintiff contends the trial court erred in
sustaining Deputy Penhollow and Sergeant Yates’s six evidentiary
objections. Specifically, the court
sustained objections to (1) exhibits plaintiff identified as two logs
documenting security checks for module 3301 and two inmate discipline reports
for Horton; (2) the deposition transcript of Horton’s sister; and (3) the
declaration of an attorney at Disability Rights California regarding a study on
mental health issues at the jail. Plaintiff
asserts the officers’ objections lacked merit and also that the court erred in
filing its evidentiary rulings but never serving the rulings on the parties.
the court erred, plaintiff has not demonstrated prejudice. A party challenging evidentiary rulings made in
the course of a summary judgment motion has two burdens on appeal ‑‑
affirmatively show error in the rulings and establish prejudice. (Truong
v. Glasser (2009) 181 Cal.App.4th 102, 119.) Plaintiff argues the rulings were either wrong
or ineffective for lack of service, but she does not explain how or why the
court’s ruling granting summary judgment would have been otherwise, had the
court overruled the defense objections.
Without a showing that the court’s alleged errors were prejudicial, we
decline to reverse the evidentiary rulings.
Summary
Adjudication on the Wrongful Death and Negligence Causes of Action
Plaintiff contends the court erred in granting the officers’ motion because
it was disputed whether the officers caused Horton’s death by participating in
an assault and battery. Alternatively,
she argues, the officers were negligent in failing to prevent the beating and
caused Horton’s death in this manner. We
agree there were disputed issues of material fact precluding summary
adjudication on the wrongful death cause of action as to both officers and on the
negligence cause of action as to Deputy Penhollow only.
Wrongful Death
In their separate statement of undisputed material facts (separate
statement), Sergeant Yates and Deputy Penhollow highlighted the opinion of defense
expert Dr. Fukomoto that Horton died from a self-inflicted hanging. Plaintiff disputed this fact, citing Dr. Comparini’s
declaration that the evidence was inconsistent with a self-inflicted hanging,
and Horton had instead died from intra-abdominal injuries inflicted by blunt
force trauma. Dr. Comparini relied
on the autopsy report. The coroner’s
autopsy report was inconclusive, to be sure.
Dr. Poukens, who conducted the autopsy, determined Horton’s cause
of death was “hanging and other undetermined factors,†noted intra-abdominal
injuries that indicated recent blunt force trauma, and noted tissue in that
area showed hemorrhaging or contusions less than four hours old. The report noted Horton’s time of death as 4:05 a.m. on March 30, 2009. Dr. Poukens could not determine with
medical certainty whether the intra-abdominal injuries contributed directly or
indirectly to Horton’s death. These
conflicts in the evidence were sufficient to raise a triable issue of fact
regarding whether Horton died because of a self-inflicted hanging or a physical
attack that was apparently made to look like suicide. The elements of a wrongful death cause of
action are (1) the tort (negligence or another wrongful act), (2) resulting
death, and (3) damages. (
To the extent there was evidence Horton suffered a recent beating that
killed him, there was certainly evidence of a “wrongful act†causing his death.
The
trial court acknowledged the triable issue of fact as to the cause of Horton’s death,
but it nevertheless found the issue immaterial because plaintiff “failed to
introduce any evidence that Yates and/or Penhollow were somehow involved in the
alleged assault.†This was not the
case. As moving defendants, Deputy
Penhollow and Sergeant Yates bore the initial burden of showing “the plaintiff
‘has not established, and cannot reasonably expect to establish, a prima facie
case . . . .’†(
(2005) 36 Cal.4th 446, 460.) Deputy Penhollow
and Sergeant Yates stated in their declarations that they never had a physical
altercation with Horton and did not have any contact with Horton before 3:45 a.m. on March 30, 2009, except for
Sergeant Yates’s walk down module 3301 around 12:09 a.m.
The
burden was then plaintiff’s to raise a triable issue of material fact, and she
did so. (Code Civ. Proc., § 437c,
subd. (p)(2).) The evidence showed
Horton was confined in a single-man, fully enclosed cell in a maximum security
section of the jail and Horton may have died from internal injuries inflicted
by blunt force trauma. No inmates would
have had access to Horton in his single-man, maximum security cell on March 29
and March 30,
2009.
On the other hand, the deputies would have had access. Although Deputy Kidder was the officer
responsible for Horton’s module the night of Horton’s death, Deputy Penhollow
was working in the neighboring module. He
and Deputy Kidder went on a “chow run†together that night. Deputy Penhollow acknowledged the scanner log
showed he entered Deputy Kidder’s module at 11:06 p.m.
on March 29, but he asserts it was an error in that he was using a barcode
cheat sheet to falsify his security checks, and he accidentally scanned the cheat
sheet for Deputy Kidder’s module instead of the cheat sheet for his own module. He further asserted the only purpose of scanning
the module barcode plaques was to document security checks, and if he was in the
module for any other purpose, he would not have scanned the barcode plaque. The implication is that if he were in the
module to commit wrongful conduct, he would not have scanned the barcode. This might be true, but the fact is evidence
places him in and around Horton’s module at approximately the time plaintiff’s
evidence suggests Horton was assaulted.
in and around the module at approximately that time. By his own admission, he was there around midnight on March 30. Given
plaintiff’s evidence of a recent attack on Horton, and the fact that no inmates
would have had access to Horton in his cell, the only reasonable inference was
that one or more officers attacked Horton, and plaintiff pointed to evidence
that Deputy Penhollow and Sergeant Yates were two of three officers (along with
Deputy Kidder) who accessed module 3301 that night.
The
officers suggest plaintiff had to show they were the only officers who had access to Horton, otherwise it was pure
speculation to say they were responsible for any attack on Horton. We disagree.
Plaintiff did not have to show no
other officers could have been responsible.
She simply had to offer evidence from which we could infer Deputy
Penhollow’s and Sergeant Yates’s involvement, and this she did. The officers invite us to infer some other
unspecified individuals could have attacked Horton. But the more reasonable and probable
inference is that those responsible were the people whom evidence showed accessed
Horton’s module. (See
v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 [plaintiff
seeking to prove essential element of her case with circumstantial evidence
must show the inferences favorable to her are more reasonable or probable than
those against her].)
We
express no opinion as to the eventual outcome of a trial on these issues and
are mindful that our only duty “is to determine whether [triable] issues of
fact exist and not to decide the merits of the issue[s].†(Evan F.
v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 842.) And in determining whether plaintiff has met
the burden of defeating summary judgment, we may certainly consider
circumstantial evidence and all reasonable inferences to be drawn from it. (Leslie G. v. Perry & Associates,
supra, 43 Cal.App.4th at p. 483.) The
presence of reasonable
inferences supporting a judgment for plaintiff is sufficient to defeat a defense
summary judgment motion. (Hulett v.
Farmers Ins. Exchange (1992) 10 Cal.App.4th 1051, 1060, superseded by
statute on other grounds as declared in Union
Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583; see also Code Civ.
Proc., § 437c, subd. (c) [in determining whether to grant summary judgment,
court shall consider “all inferences reasonably deducible from the evidence,
except summary judgment may not be granted by the court based on inferences
reasonably deducible from the evidence, if contradicted by other inferences or
evidence, which raise a triable issue as to any material factâ€].)
To
summarize, we find, as did the trial court, a triable issue of fact regarding
the cause of Horton’s death. There was
some evidence suggesting Horton died because of relatively recent blunt force
injuries. Given the conflicting evidence
regarding Horton’s cause of death and the circumstantial evidence suggesting
Deputy Penhollow’s and Sergeant Yates’s possible involvement, summary
adjudication of the wrongful death cause of action was not proper.
Negligence
Plaintiff
alternatively alleged the officers were negligent when they breached their duty
of care to Horton by failing to protect him from an assault and battery that
killed him. Under this alternative
theory, Deputy Penhollow and Sergeant Yates did not actively participate in
beating Horton, but they were aware of the wrongful conduct because they either
heard it or saw it occurring and did nothing to prevent it.
To
reiterate, the initial burden on a defendant moving for summary judgment is to
show one or more elements of a cause of action cannot be established or there
is a complete defense to the cause of action.
(Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has
met that burden, the plaintiff must show one or more triable issues of material
fact exist. (Ibid.)
The
elements of a cause of action for negligence are duty, breach of the duty,
causation, and damages. (
Cal.4th 604, 614.) Deputy Penhollow and
Sergeant Yates contend there was no evidence they had knowledge Horton’s safety
was in jeopardy, suggesting they did not breach any duty to Horton. They cite to the statements in their
declarations, highlighted in their separate statement, that they did not
“observe anyone (custody official, inmate or anyone else)†have any physical
altercation with Horton.
Their
statements shifted the burden to plaintiff, who demonstrated a triable issue of
fact at least with respect to Deputy Penhollow.
Again, there is some evidence Horton suffered a physical attack in the
several hours before 3:45 a.m. on March 30 and this attack caused his death. An attack of that nature would involve a
certain amount of noise, likely including cries from the victim. Deputy Penhollow’s post that night was in the
neighboring module. He was close enough
that he could hear Deputy Kidder yell for help in module 3301 when he said he
found a “hanger.†Although the cells in
the module were fully enclosed, they do not appear to have been sound
proof. Plaintiff submitted an excerpt
from the deposition of Sergeant Yates in which he explained he sometimes walks
the discipline modules, like module 3301, because the “inmates would like to
see a sergeant†and “they’ll yell to [him] if they have concerns.†The inference is that officers outside the
cells can still hear inmates in the enclosed cells. In light of the evidence of an attack and
Deputy Penhollow’s neighboring post, there was sufficient evidence to find a
triable issue of fact regarding the deputy’s breach of a duty to protect
Horton.
On
the other hand, plaintiff did not show a triable issue of fact with respect to
Sergeant Yates. There is nothing from
which we could infer he could have or should have heard an attack. Sergeant Yates was responsible for the whole
floor, not just module 3301 or a neighboring module. In his deposition, he indicated he supervised
approximately 12 deputies and their respective modules that night. But plaintiff presented no evidence about
Sergeant Yates’s own post and whether he was stationed close to module 3301,
such that he would have heard an attack at any time. Thus, while the court erred in granting Deputy
Penhollow summary adjudication of this cause of action, it did not err in
granting Sergeant Yates summary adjudication here. Sergeant Yates’s liability for negligence in
supervising deputies who may have harmed Horton is a different matter, which we
discuss in the next part.
Summary
Adjudication for Sergeant Yates on the Negligent Supervision Cause of Action
Plaintiff
next contends the court erred in granting summary adjudication of the negligent
supervision cause of action for Sergeant Yates.
We agree.
The
court granted the motion as to this cause of action because it believed an
individual employee, as opposed to the employer, could not be liable. The court held Sergeant Yates was therefore entitled
to judgment on the pleadings. The cause
of action is not so narrowly defined, however.
California case law “recognizes the theory that an employer can be liable to a
third person for negligently hiring, supervising, or retaining an unfit
employee.†(Doe v. Capital Cities
(1996) 50 Cal.App.4th 1038, 1054.) Many
cases frame the cause of action as one against the employing enterprise. (E.g., Mendoza v. City of Los Angeles
(1998) 66 Cal.App.4th 1333, 1339-1340 [“Liability for negligent hiring and
supervision is based upon the reasoning that if an enterprise hires individuals
with characteristics which might pose a danger to customers or other employees,
the enterprise should bear the loss caused by the wrongdoing of its incompetent
or unfit employees.â€].)
At
the same time, our Supreme Court has held individual supervisory employees may
be liable for negligent hiring or supervision when a special duty exists
between the supervisors and the plaintiff.
(C.A.
action, the case involved public school employees, who “have a special relationship
with the district’s pupils, a relationship arising from the mandatory character
of school attendance and the comprehensive control over students exercised by school
personnel . . . .†(Id. at p. 870.) This special relationship “impos[ed]
obligations beyond what each person generally owes
others . . . .†(Ibid.) Sergeant Yates does not contend he owed no
special duty to Horton. He simply argues
individual supervisors can never be liable for negligent supervision, which is
not the case.
He further
argues he cannot be vicariously liable for the acts of a subordinate under
Government Code section 820.8 (“[A] public employee is not liable for an injury
caused by the act or omission of another person.â€). But “[l]iability for negligent supervision
and/or retention of an employee is one of direct liability for negligence, not
vicarious liability.†(Delfino v.
Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) And as section 820.8 holds, nothing in that “section
exonerates a public employee from liability for injury proximately caused by
his own negligent or wrongful act or
omission.†(Italics added.)
Sergeant
Yates also asserts he is entitled to summary adjudication because there is no
evidence he knew or had reason to know his subordinate deputies were “incompetent.†It is true “there can be no liability for
negligent supervision ‘in the absence of knowledge by the principal that the
agent or servant was a person who could not be trusted to act properly without
being supervised.’†(Juarez v. Boy Scouts of
America, Inc. (2000) 81 Cal.App.4th 377, 395.) Sergeant Yates did not negate this element or
demonstrate an absence of such evidence in his moving papers below, though. In the trial court, he moved on the simple legal
ground that individual supervisors could not be liable. If
he had demonstrated the pertinent evidence was absent, it would have been
plaintiff’s burden in her opposition to show an issue of fact regarding his
knowledge “of the dangerous propensities†(C.A. v. William S. Hart Union
High School Dist., supra, 53
Cal.4th at p. 878) of Deputy Kidder or Deputy Penhollow. But the sergeant did not do this. “[A] plaintiff resisting a motion for summary
judgment bears no burden to establish any element of his or her case unless and
until the defendant presents evidence either affirmatively negating that
element (proving its absence in fact), or affirmatively showing that the
plaintiff does not possess and cannot acquire evidence to prove its existence.†(Reeves v. Safeway Stores, Inc. (2004)
121 Cal.App.4th 95, 107.) Sergeant Yates
did not carry his burden and was not entitled to summary adjudication of this
cause of action.
Lastly,
the court’s second reason for granting the motion ‑‑ that there was
no triable issue as to any negligence or wrongful conduct on the part of
supervised deputies ‑‑ no longer applies. As we discuss above, triable issues of material
fact exist as to Deputy Penhollow’s liability.
And as we explain in the related opinion in Jones v. County of Los Angeles et al., B241333, triable issues of
material fact exist as to Deputy Kidder’s liability.
Summary
Adjudication on the Violation of Civil Rights Cause of Action
Plaintiff’s
final claim of error relates to the violation of civil rights cause of action
brought under Civil Code section 52.1.
officers violated Horton’s rights through an unlawful assault and battery, which
satisfied the requirements of section 52.1 and precluded summary
adjudication. Deputy Penhollow and
Sergeant Yates contend the cause of action fails as a matter of law because the
claimed wrongful conduct does not satisfy the requirements of the statute. We do not agree the cause of action fails as
a matter of law and find a triable issue of material fact as well.
Section
52.1, commonly referred to as the Tom Bane Civil Rights Act (Bane Act), “provides
that a person may bring a cause of action ‘in his or her own name and on his or
her own behalf’ against anyone who ‘interferes by threats, intimidation or
coercion, with the exercise or enjoyment’ of any constitutional or statutory
right.†(Bay Area Rapid Transit Dist.
v. Superior Court (1995) 38 Cal.App.4th 141, 144, quoting § 52.1; see
Cal.App.4th 1441, 1447.) The statute
allows the plaintiff in such a civil action to seek both damages and equitable
relief. (§ 52.1, subd. (b).) The word “‘interferes’†as used in the Bane
Act means “‘violates.’†(Austin B.
v. Escondido Union School Dist. (2007) 149
Cal.App.4th 860, 883.) Among the rights
plaintiff alleged the officers violated was Horton’s statutory “right of
protection from bodily restraint or harm†under section 43.
Deputy
Penhollow and Sergeant Yates argue plaintiff’s cause of action fails because
“she must establish threats, intimidation or coercion separate and apart from the underlying constitutional [or
statutory] violation.†As expressed by one federal court decision on
which the officers rely, “a cause of action under the [Bane Act] requires a
predicate ‑‑ the application of threat, intimidation or coercion ‑‑
and an object ‑‑ interference with a constitutional or statutory
right.†(Rodriguez v. City of
in this case the claimed assault and battery of Horton ‑‑ cannot be
both the predicate and the object under the Bane Act. They believe the act constituting the
violation of rights must be something different than the “threat[s],
intimidation, or coercion.†They rely on
Shoyoye v. County of Los Angeles
(2012) 203 Cal.App.4th 947 (Shoyoye). As the facts in Shoyoye will demonstrate, that case is distinguishable, and we think the officers’ reading of
Before
discussing Shoyoye, we begin with
some brief background of the Bane Act.
Although the Legislature enacted the Bane Act in response to the
increasing incidence of hate crimes in California (Bender v. County of Los
Angeles (2013) 217 Cal.App.4th 968, 977), in Venegas v. County of Los
Angeles (2004) 32 Cal.4th 820, 843, our Supreme Court clarified the Bane
Act is not limited to hate crimes and plaintiffs need not show defendants have “a
discriminatory purpose in harassing them.â€
The Venegas court further
held: “[S]ection 52.1 does not extend to
all ordinary tort actions because its provisions are limited to threats,
intimidation, or coercion that interferes with a constitutional or statutory
right. . . . [W]e need
not decide here whether section 52.1 affords protections to every tort
claimant, for plaintiffs in this case have alleged unconstitutional search and
seizure violations extending far beyond ordinary tort claims. All we decide here is that, in pursuing relief
for those constitutional violations under section 52.1, plaintiffs need not
allege that defendants acted with discriminatory animus or intent . . . .†(Venegas,
supra, at p. 843.) The
defendants in Venegas did not raise
the argument the officers raise here ‑‑ that the Bane Act does not
apply when the threats, intimidation, or coercion are inherent in the violation
of legal rights.
As
far as the officers’ reliance on Shoyoye,
the facts there demonstrate plain differences with the case at bar. Officers lawfully arrested Shoyoye, but they
detained him for a much longer period than allowed by law because of a negligent
clerical error misidentifying him as another inmate. (Shoyoye,
supra, 203 Cal.App.4th at pp. 951-953.)
On the basis of this overdetention, the jury rendered verdicts for
Shoyoye on his cause of action for false imprisonment and his cause of action
under the Bane Act. (
false imprisonment but reversed as to the Bane Act. (Shoyoye,
at p. 963.) The court concluded the
“statutory framework of section 52.1 indicates that the Legislature meant the
statute to address interference with constitutional rights involving more
egregious conduct than mere negligence†based on “multiple references to
violence or threats of violence in the statute,†which “serve to establish the
unmistakable tenor of the conduct that section 52.1 is meant to address. The apparent purpose of the statute is not to
provide relief for an overdetention brought about by human error rather than intentional conduct.†(Id.
at pp. 958-959.) Thus, the legislative
history indicated “the statute was intended to address only egregious
interferences with constitutional rights, not just any tort. The act of interference with a constitutional
right must itself be deliberate or spiteful.â€
(Id. at p. 959.)
Having
determined this, the court then held “where coercion is inherent in the
constitutional violation alleged, i.e., an overdetention in County jail, the
statutory requirement of ‘threats, intimidation, or coercion’ is not met. The statute requires a showing of coercion
independent from the coercion inherent in the wrongful detention itself.†(Shoyoye,
supra, 203 Cal.App.4th at p. 959.)
Shoyoye had not made the requisite showing because his “overdetention occur[ed]
because of mere negligence rather than a volitional act intended to interfere
with the exercise or enjoyment of a constitutional right,†and the only
coercion present “was simply that which is reasonable and incident to
maintaining a jail.†(
effected a knowing and blameworthy interference with Shoyoye’s legal rights. (Id. at p. 961.)
Here,
by contrast, plaintiff has shown evidence of intentional, knowing, and
blameworthy conduct ‑‑ indeed, the type of egregious, violent
conduct the statutory framework indicates the Bane Act was meant to address,
not simply unintentional harm or human error.
Under plaintiff’s assault and battery theory of the case ‑‑
as to which there are triable issues of material fact ‑‑ one or
more of the officer defendants attacked Horton in his cell, did not call for
medical assistance afterward, and instead arranged a hanging to bring about a death
perceived as suicide. Depending on how
the evidence comes in at trial, a reasonable jury could certainly conclude the
perpetrators’ violent attack on Horton constituted intentional and deliberate intimidation
or coercion ‑‑ acts that essentially threatened him not to fight
back but also violated his statutory right to protection from bodily restraint
or harm. The type of wrongful conduct supposed
here went beyond the unintentional or incidental coercion in
conduct inherent in all violations of
the right to protection from restraint or harm.
Shoyoye does not compel us to conclude
that when, as here, “deliberate or spiteful†(Shoyoye, supra, 203 Cal.App.4th at p. 959) force accomplishes
a knowing violation of the right to protection from bodily harm, the Bane Act
requires an additional showing of conduct violating some other separate right.
We
agree with several recent federal cases in which the defendants made the same
argument the officers make here, and the courts construed Shoyoye narrowly, as do we. In
2013 WL 968295, *10, the court denied the defense motion to dismiss the Bane
Act cause of action and held: “[T]he
harms alleged ‑‑ an arrest without probable cause, the use of
excessive force, retaliation for protected speech, and an unlawful strip search
‑‑ were brought about by intentional conduct. In contrast to the negligent overdetention in Shoyoye, this conduct may reasonably [be] perceived
as threatening, intimidating, or coercive.â€
Similarly, in Bass v. City of Fremont (N.D.Cal.,
Mar. 8, 2013, No. C12-4943 TEH) 2013 WL 891090, *5, the court rejected “a broad
reading of Shoyoye ‑‑ one that would, perversely, preclude
any section 52.1 action in which the underlying statutory or constitutional
violation involved ‘threats, intimidation, or coercion’†and held: “This reading is contrary to the plain
language of the statute, which specifically provides for a civil action based
on interference with a right ‘by threats, intimidation, or coercion.’†Likewise, in M.H. v. County of Alameda
(N.D.Cal., Apr.
18, 2013, No. 11-cv-02868 JST) 2013 WL
1701591, *7, the court held “the relevant distinction for purposes of the Bane
Act is between intentional and unintentional conduct, and . . . Shoyoye
applies only when the conduct is unintentional.â€
In
sum, the Bane Act cause of action does not fail as a matter of law. Additionally, as we have discussed at length
above, there were triable issues of material fact regarding an assault and
battery on Horton, the theory underlying this cause of action. Summary adjudication of this cause of action
was not proper.
DISPOSITION
The
judgment is affirmed in part and reversed in part. The judgment for Sergeant Yates on the
negligence cause of action is affirmed but reversed with respect to Deputy Penhollow
on the same cause of action. The
judgment for both officers on the wrongful death and violation of civil rights
causes of action is reversed. The
judgment for Sergeant Yates on the negligent supervision cause of action is
also reversed. In all other respects,
the judgment is affirmed. Plaintiff
shall recover costs on appeal.
FLIER,
J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
name="_ftn1" title="">[1] Several
months before the defendants in this appeal moved for summary judgment, the County and Sheriff Baca filed a motion for summary judgment and another doe defendant, Deputy Christopher
Kidder, filed a separate motion for summary judgment.
The court granted the motions of the County, Sheriff Baca and Deputy
Kidder and entered judgment for all three defendants. The judgment for those defendants is the
subject of the related appeal in Jones v.
County of Los Angeles (Jan. 31, 2014, B241333) (nonpub. opn.).
name="_ftn2" title="">[2] Two
other officers, Deputy Ricky Bratton and Deputy Arturo Quiroz, joined in this
motion. They are not parties to this
appeal.
