Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. CV 040945, Teresa Estrada Mullaney, Judge.
David P. Weilbacher, for Appellant.
Clayton U. Hall, Molly E. Thurmond; Hall, Hieatt & Connely, for City of San Luis Obispo Police Department, C.M. Kevany, J. Dickel, J. Smith and C. Adams, Respondents.
YEGAN, J.
On November 23, 2007, the City of San Luis Obispo Police Department (City) responded to an emergency call at French Hospital Medical Center. Hospital staff believed that appellant, Joseph J. Ardito, M.D., was impersonating a medical doctor in order to access a secure Intensive Care Unit (ICU). Appellant was escorted out to the parking lot and, three hours later, permitted to re-enter the hospital after the hospital CEO confirmed that appellant was a medical doctor and had hospital staff privileges. He appeals from the judgment entered after the trial court sustained, without leave to amend, respondents', City and Police Officers C.M. Kevany, J. Dickel, J. Smith, and C. Adams, demurrer to his first amended complaint for damages. We affirm because the action is barred by Government Code section 820.2 and fails to state a cause of action for violation of the federal Civil Rights Act (42 U.S.C. § 1983).
Factual and Procedural History
On review, we treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The first amended complaint alleges that appellant received a call that his patient had been admitted to French Hospital Medical Center for a drug overdose. Appellant arrived at the hospital wearing a physician "scrub smock" and had the patient's medical records. It was Sunday afternoon and an emergency room doctor was treating the patient.
Supervising Nurse Andrea Gaslam did not believe appellant was a medical doctor or had staff privileges to enter the hospital ICU area. Appellant displayed a physician's identification card but Nurse Gaslam was unimpressed: "[A]nybody can make a fake card like that.... You don't look like a doctor to me."
Appellant tried to open the ICU security door and was pushed away from the door. A "Code Grey in ICU, Code Grey in ICU, Stat" alert blared out on the intercom system. Appellant knew that it was a security incident warning and that the police had been called to prevent a dangerous security breach.
Respondents answered the emergency call and escorted appellant out to the parking lot. Appellant argued with the officers and refused to leave. Several hours later, the hospital CEO authorized appellant's entry into the hospital.
Appellant sued for tort damages and violation of the federal Civil Rights Act (42 U.S.C. § 1983). After two pleading attempts, the trial court sustained respondents' demurrer without leave to amend.
Second Cause of Action: Intentional Tort
The second cause of action for "intentional tort" alleges that the officers acted unreasonably and "failed and refused to take reasonable steps to ascertain whether or not plaintiff was in fact a physician...." On its face, the action is barred by Government Code section 820.2 which immunizes a police officer's discretionary acts. "A decision to arrest, or to take some protective action less drastic than arrest, is an exercise of discretion for which a peace officer may not be held liable in tort. [Citation.]" (McCarthy v. Frost (1973) 33 Cal.App.3d 872, 875.)
Government Code section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
In Watts v. County of Sacramento (1982) 136 Cal.App.3d 232, a landowner claimed that plaintiffs were trespassing and refused to let plaintiffs harvest their corn. The landowner called the sheriff who ordered plaintiffs, upon threat of arrest, to leave the property. Plaintiffs sued the sheriff for damages after the landowner converted the crop to his own use. The Court of Appeal held that the action was barred by the immunity provisions of Government Code section 820.2. (Id., at pp. 234-235.) The same immunity applies here. "Settling a disagreement as to plaintiffs' right to be on the land by ordering them to leave is clearly action short of arrest for which the officers are immune from liability...." (Id., at p. 234.)
The second cause of action states that respondents "negligently owned, maintained, controlled, managed, and operated a method for reasonably ascertaining the professional status of [appellant]...." Appellant claims that the officers should have contacted the California Medical Board and promptly verified appellant's credentials. The imposition of such a duty is unprecedented. The officers were responding to a Sunday emergency call and lacked the resources to determine whether appellant had hospital staff privileges.
The first amended complaint states that appellant "was put in fear for his safety" because the officers threatened to arrest appellant. During the shouting match, an officer allegedly made "intimidating movements" towards a piece of tactical equipment, possible a canister of pepper spray or some sort of collapsible baton.
Although the second cause of action is labeled "Intentional Tort, " it sounds in negligence and is based on the theory that the officers knew or should have known that appellant was a medical doctor after he produced his driver's license and physician identification card. That, however, was only half of the problem. Hospital employees believed that appellant did not have staff privileges to enter the ICU area.
Fourth Cause of Action: Assault & Battery
The fourth cause of action restates the negligence allegations and alleges that respondents "assaulted, battered and falsely arrested and seized" appellant. A decision to arrest or to take some protective action less drastic than arrest, is an exercise of discretion for which a peace officer may not be held liable in tort. (Watts v. County of Sacramento, supra, 136 Cal.App.3d at p. 234.) Here, no facts are alleged that the officers physically touched or "seized" appellant's person.
Appellant claims that the officers grabbed medical records out of his hand and read confidential medical information. Standing alone, this is not an assault or seizure of appellant's person. The tort of assault adopts the criminal definition that an "assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 381, p. 598.) A police officer may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance. (Pen. Code, § 835a; Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102.) Police officers are " 'not similarly situated to the ordinary battery defendant and need not be treated the same. In these cases, then, "... the defendant police officer is in the exercise of the privilege of protecting the public peace and order [and] he is entitled to the even greater use of force than might be in the same circumstances required for self-defense. [¶]... [¶] [Citation.]" ' " (Id., at p. 1109.)
Although the officers may have been mistaken in assessing the situation, the decision not to allow appellant to re-enter the hospital was a discretionary act that falls with the holding of Watts v. County of Sacramento, supra, 136 Cal.App.3d at page 235.
Fifth Cause of Action: Violation of Federal Civil Rights Act
The fifth cause of action for violation of 42 United States Code section 1983 states that respondents "unlawfully arrested and detained [appellant]. During this false and improper seizure and detainment [appellant] was taunted, harassed, and deprived of his rights...." No facts, however, are alleged that appellant was actually arrested or kept in the parking lot against his will.
To state a cause of action for violation of the federal Civil Rights Act, appellant must allege that respondents, in performing their discretionary functions, violated a "clearly established statutory or constitutional right of which a reasonable person would have known. [Citations.]" (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818 [73 L.Ed.2d 396, 410].) Appellant cites no authority, and we have found none, that appellant had a constitutional or statutory right to access a secure ICU area without the consent of the hospital.
The fifth cause of action states that appellant's Fourth and Fourteenth Amendment rights were violated but is devoid of facts. Like the other causes of action, it is based on negligence theories and fails to state a cause of action under 42 United States Code section 1983. (See e.g., Daniels v. Williams (1986) 474 U.S. 327, 330 [88 L.Ed.2d 662, 667-668].) "[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. [Citations.]" (County of Sacramento v. Lewis (1998) 523 U.S. 833, 849 [140 L.Ed.2d 1043, 1059].)
Excessive force claims are analyzed under the Fourth Amendment reasonableness standard. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 343.) "The test of reasonableness in this context is an objective one, viewed from the vantage of a reasonable officer on the scene. It is also highly deferential to the police officer's need to protect himself and others" (Ibid.) No facts are alleged that the officers used excessive force in responding to the emergency call.
Seventh Cause of Action: Intentional Infliction of Emotional Distress
The seventh cause of action alleges that the officers made "'flip' and amateurish statements" in responding to appellant's inquiries about the patient. No facts are alleged that respondents' conduct was "so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citations.]" (Davidson v. City of Westminister (1982) 32 Cal.3d 197, 209.) The tort of intentional infliction of emotional distress does not extend to "'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt." (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)
Ninth Cause of Action: Failure to Instruct, Supervise, Control & Discipline Officers
The ninth cause of action alleges that City failed to instruct, supervise, control or discipline the officers in violation of appellant's constitutional rights. It is a restatement of the negligence claim.
A local governmental entity can only be liable under 42 United States Code section 1983 if the plaintiff establishes a nexus between the alleged violation of rights and a "permanent and well settled" governmental policy or custom. (Monell v. New York City Dept of Soc. Serv. (1978) 436 U.S. 658, 691 [56 L.Ed.2d 611, 635-636].) Random acts or isolated events are insufficient to establish custom or violation of 42 United States Code section 1983. (Thompson v. City of Los Angeles (9th Cir. 1989) 885 F.2d 1439, 1443-1444; see Van Alstyne, Cal. Government Tort Liability Practice (CEB 4th ed. 2009) § 13.21, p. 1095.)
Appellant has failed to allege that a policy or practice was the " 'moving force' behind the injury alleged. [Citation.]" (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328.) "Local governments have no liability under 42 United States Code section 1983 simply because their employees may have violated a plaintiff's constitutional rights; the doctrine of respondeat superior does not apply. [Citations.]" (Ibid.)
Conclusion
As discussed in Watts v. County of Sacramento, supra, 136 Cal.App.3d at pages 234-235, police officers and their employers are immune from liability where the gist of the claim is "negligent investigation." (See also Michenfelder v. City of Torrance (1972) 28 Cal.App.3d 202, 207.) Here the officers responded to a emergency call to keep the peace. Respondents had no authority to order appellant's entry into the hospital or to resolve a private dispute concerning hospital staff privileges.
We conclude that the first amended complaint is barred by Government Code section 820.2 and that no facts have been alleged to assert a cause of action for violation of 42 United States Code section 1983. Absent an affirmative showing that the pleading defects can be corrected by an amended complaint, the judgment must be affirmed if correct on any theory. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) The trial court did not abuse its discretion in denying leave to amend. (Ibid.)
The judgment (order sustaining demurrer without leave to amend) is affirmed. Respondents are awarded costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.