Case Number: BC609654??? Hearing Date: December 05, 2016??? Dept: 58
Hearing Date: Monday, December 5, 2016
Calendar No: 5
Case Name: Morejon, et al. v. County of Los Angeles, et al.
Case No.: BC609654
Motion: Motion for Judgment on the Pleadings
Moving Party: Defendants County of Los Angeles, Los Angeles County Sheriff?s Department, and Sheriff Jim McDonnell
Responding Party: Plaintiffs Elias Morejon and Yolanda E. Jimenez
Tentative Ruling: Motion for judgment on the pleadings is granted in part as to all COAs with 20 days leave to amend.
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Background ?
On 2/9/16, Plaintiffs Elias Morejon and Yoland E. Jimenez filed this action against Defendants County of Los Angeles, Los Angeles County Sheriff?s Department, and Sheriff Jim McDonnell arising out of the death of Anthon Steven Morejon while incarcerated at the Twin Towers Jail. Elias is Anthony?s surviving brother and Yolanda is Anthony?s surviving mother. Plaintiffs assert causes of action for (1) violation of Civil Code ? 52.1, (2) negligence, (3) failure to protect a prisoner, (4) violation of Gov?t Code ? 845.6, (5) violation of 42 U.S.C. ? 1983, (6) wrongful death, and (7) survival action. On 8/8/16, this action was assigned to this Court. Trial is set for 8/7/17; FSC for 7/27/17; status conference and mediation setting for 12/5/16.
Factual Allegations of the Complaint ?
On 1/11/15, Anthony was arrested by the Sheriff?s Department for possession of a controlled substance and paraphernalia. ? 13. On 1/12/15, Anthony was transferred to the Twin Towers Jail. ? 14. In the morning of 1/13/15, Anthony was transported to the criminal court and later returned to Twin Towers Jail in the psychiatric hold department which was to provide 24/7 video monitoring and personal checks every 15 minutes. ? 15. At some point in the morning of 1/13/15, Anthony was handcuffed to the outside door of his cell because he would not change into a psychiatric unit dressing gown and was observed talking to the wall. ? 16. At 8:05 p.m. on 1/13/15, a deputy noted that Anthony was sitting on the floor with shallow breathing, was unresponsive, and was drooling. ? 18. CPR was initiated and medical staff and paramedics were called, but Anthony was declared deceased at 9:04 p.m. ?? 19-20.
Anthony was documented to have died of natural causes (? 21) but an investigation noted the possibility of death due to narcotic overdose (? 22) and the coroner determined the cause of death to be acute methamphetamine intoxication (? 24). However, Anthony had been incarcerated for approximately three days, had no access to drugs, was under constant supervision, and no foul play was noted. ? 25.
Motion for Judgment on the Pleadings ?
Defendants move for judgment on the pleadings as to the 1st, 3rd, and 5th through 7th COAs.
1. Gov?t Code ? 844.6(a)(2) Immunity
Preliminarily, Defendants generally argue that they are immune for any injury to a prisoner (Gov?t Code ? 844.6(a)(2)) as to the challenged causes of action. However, Gov?t Code ? 845.6 is an exception to Gov?t Code ? 844.6 immunity. This exception provides liability if a public employee is acting within the scope of his employment and knows or has reason to know that the prisoner is in need of immediate medical care and fails to take reasonable action to summon such medical care. Here, the allegations of the Complaint support liability under Gov?t Code ? 845.6 at the pleadings stage.
2. 1st COA, Civil Code ? 52.1 ?Bane Act?
Defendants argue that Plaintiffs cannot bring a Bane Act claim because it is not a wrongful death provision and is instead a personal cause of action. Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144 (rejecting derivative liability under the Bane Act). In opposition, Plaintiffs argue that they have standing to bring a survival action under the Bane Act. See, e.g., Medrano v. Kern County Sheriff?s Officer (E.D. Cal. 2013) 921 F.Supp.2d 1009, 1015-16 (distinguishing a survival claim from a wrongful death claim prohibited under Bay Area Rapid Transit). The legal arguments by Defendants and Plaintiffs are both correct, but Defendants? argument is more applicable to the Complaint as alleged. Although Plaintiffs can bring a survivor Bane Act claim, the 1st COA is brought on behalf of Plaintiffs (see Complaint ?? 37 (alleging that Plaintiffs were harmed due to Decedent?s wrongful death)). The Court notes that though Plaintiffs assert wrongful death and survival claims through the 6th and 7th COAs. Plaintiffs fail to clearly indicate on which basis the other COAs are brought. Indeed, there are confusing references to Anthony as the ?Plaintiff? (Complaint ? 14) which render the various references to ?Plaintiff? and ?Plaintiffs? in the COAs to be confusing (see, e.g., id. ?? 28, 33, 37-40). The motion for judgment on the pleadings is granted as to the 1st COA on this ground.
Defendants also argue that Civil Code ? 52.1 does not impose a mandatory duty to establish liability for a public entity pursuant to Gov?t Code ? 815.6. But this argument at its core concerns the distinction between direct liability and vicarious liability. See, e.g., Lopez v. County of Los Angeles (C.D. Cal. 2015) 2015 WL 3913263 *9-10; Gonzalez v. County of Los Angeles (C.D. Cal. 2008) 2008 WL 2951272 *2-3. Here, the 1st COA asserts liability against Defendants based on vicarious liability and/or direct liability (Complaint ? 29), but it is clear that the public entities? liability is based on vicarious liability (see id. ? 28) which permits the 1st COA to be asserted against Defendants pursuant to Gov?t Code ? 815.2(a). Lopez, 2015 WL 3913263 *10; Gonzalez, 2008 WL 2951272 *3 n.7.
3. 3rd COA, Failure to Protect
Defendants argue that Plaintiffs fail to allege facts to support statutory liability against Defendants. See Gov?t Code ? 815; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183. The Court agrees. The 3rd COA asserts direct liability against Defendants (see Complaint ?? 51-54) but no statute is cited to support such liability. Plaintiffs argue that Civil Code ? 52.1, Gov?t Code ? 845.6, and 42 U.S.C. ? 1983 provide for the statutory liability, but all of these claims are already asserted in their own COAs and do not separately create a mandatory duty. See, e.g., Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1241 (holding that 42 U.S.C. ? 1983 does not create a mandatory duty). The motion for judgment on the pleadings is granted as to the 3rd COA.
4. 5th COA, 42 U.S.C. ? 1983 ?Monell?
Defendants argue that Plaintiffs fail to allege a government policy or custom pursuant to which Plaintiffs? rights were violated. Monell, 436 U.S. at 694; Clouthier v. County of Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1249. McDonnell separately argues that he cannot be individually liable. The Court agrees in part.
Here, Plaintiffs fail to allege facts that support a government policy or custom, standard operating procedure, fair representation of official policy, or ratification pursuant to which Plaintiffs? rights were violated. See, e.g., Price v. Sery (9th Cir. 2008) 513 F.3d 962, 966. Indeed, Plaintiffs allege that there was a policy or requirement to provide 24/7 video monitoring and personal checks every 15 minutes in the psychiatric hold department to which Anthony was confined (Complaint ? 15), and that Anthony?s cause of death due to narcotics overdose is suspicious because of such supervision (see id. ? 25). No facts are alleged that Anthony?s death was caused by a government policy or custom (i.e., that there was a policy or custom to fail to regularly or consistently monitor or supervise inmates in the psychiatric hold department).
McDonnell?s argument that he cannot be individually liable is incorrect because Monell claims apply to every person. However, similar to the failure to allege a government policy or custom, Plaintiffs fail to allege facts to support McDonnell?s personal involvement or a sufficient casual connection with Plaintiffs? Monell claims. See Starr v. Baca (9th Cir. 2011) 652 F.3d 1202, 1207-8.
Therefore, the motion for judgment on the pleadings is granted as to the 5th COA.
5. 6th COA, Wrongful Death
Defendants finally argue that Elias does not have standing to assert the wrongful death claims in his individual capacity. Consistent with the Court?s ruling on the 1st COA, the Court grants the motion for judgment on the pleadings as to the 6th COA so that Plaintiffs can clarify the basis upon which the claims are being asserted (i.e., Elias asserting wrongful death on behalf of Yolanda as the personal representative of Anthony?s estate).