Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M82580.
ELIA, J.
Following the trial court's sustaining of a demurrer without leave to amend, plaintiff Christopher Griffith appeals from a dismissal of his first amended complaint, which alleged that defendant Monterey County Sheriff's Department (the County) intentionally exposed him to asbestos at the Monterey County Courthouse.
The County successfully demurred. The County contended that it is immune from liability under Government Code sections 815 and 844.6. In addition, plaintiff had failed to state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10, subdivision (e).
Standard of Review
On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, we give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) However, we do not assume the truth of contentions, deductions or conclusions of law. (Ibid.) Our review is de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
In addition, "when [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Furthermore, "In assessing whether plaintiffs should be allowed leave to amend, we determine de novo whether the complaint states facts sufficient to state a cause of action under any possible legal theory. [Citation.] We are not limited to plaintiffs' theory of recovery or 'form of action' pled in testing the sufficiency of the complaint. [Citation.]" (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 870.)
Procedural History and Background
Plaintiff filed his complaint on January 10, 2007. According to plaintiff, at the time he was allegedly exposed to asbestos, he was awaiting trial on criminal charges. He had been in the custody of the Monterey County Sheriff's Department since August 22, 2005. Plaintiff's complaint alleged that since August 22, 2005, he had noticed warning signs around the Monterey County Courthouse located in Salinas, warning of measurable levels of asbestos. Plaintiff asserted that on numerous occasions from August 22, 2005 to September 2006, he was chained and forced into areas containing high levels of asbestos by Monterey County Sheriff's deputies as he was going to and from court hearings. Plaintiff claimed that he was intentionally exposed to asbestos and that he suffered from "respiratory ailments," which would "possibly" require medical attention and treatment for the "rest of [his] life." The complaint alleged causes of action for general negligence, criminal negligence and toxic exposure. Plaintiff sought $3.5 million in damages.
The County filed a demurrer on April 5, 2007. The demurrer was based on two grounds. First, the County contended that it was immune from liability under Government Code section 815 because liability on the part of a public entity can be imposed only pursuant to specific statutes imposing liability, not common law. Second, the County contended that all of plaintiff's causes of action failed to state facts sufficient to state a claim against the County.
On May 18, 2007, the matter was heard and taken under submission. On May 23, 2007, Judge O' Farrell sustained the County's demurrer based on plaintiff's failure to allege a statutory cause of action and failure to allege that he had suffered any damage. Judge O' Farrell gave plaintiff 30 days to amend his pleading.
Thereafter, on May 24, 2007, plaintiff filed a first amended complaint. This time plaintiff alleged causes of action for general negligence, criminal negligence, negligent supervision and civil rights violations "(8th & 14th Amendments) [U.S. Constitutions[.]" Plaintiff alleged that he had suffered hospital and medical expenses, general damage and emotional distress. Plaintiff supplemented his complaint with allegations that the County had violated his constitutional rights under the Eight and Fourteenth Amendments to the federal Constitution when Sheriff's deputies "Intentionally exposed [him] to asbestos and other Hazardous Materials 31 times At the Salinas Courthouse between Aug. 2005 And Sept. 2006."
On the same day, the County filed a demurrer. This time, the County's demurrer was based on three grounds. First, the County contended that is was immune from liability pursuant to Government Code section 844.6. Second, that it was immune from liability under Government Code section 815. Third, plaintiff's causes of action failed to state facts sufficient to state a claim against the County. The County reiterated that plaintiff's first amended complaint failed to allege any damages in as much as plaintiff's vague references to medical problems were "all entirely speculative in nature" with "no factual support of any kind."
Subsequently, plaintiff filed another first amended complaint with supplement on May 25, 2007. This version of the first amended complaint contained the same common law causes of action and civil rights claims. However, this time, plaintiff included numerous dates of the hearings he had attended in the courthouse. In addition, plaintiff alleged his claims came under Government Code section 814.2 and California Code of Regulations title 15, section 3271.
Government Code section 814.2 concerns worker's compensation statutes not being repealed. California Code of Regulations, Title 15, section 3271 provides, "Every employee, regardless of his or her assignment, is responsible for the safe custody of the inmates confined in the institutions of the department." Unfortunately for plaintiff, "Department means the department of corrections" (Cal. Code Regs., tit.15, § 3000), not the Monterey County Sheriff's Department.
In response to County's demurrer, plaintiff filed a reply on June 7, 2007. On June 18, 2007, plaintiff filed a memorandum of points and authorities. On June 25, 2007, plaintiff filed a pleading entitled "Cause of Action to Plaintiff's Supplement to Amended Complaint." In two of these pleadings, plaintiff raised for the first time, claims against the County pursuant to Government Code sections 815.2, 820, 820.2 and 845.6.
The court held a hearing on the County's demurrer on July 13, 2007. After argument by both parties, Judge O' Farrell sustained the County's demurrer without leave to amend pursuant to Government Code section 844.6. The order after hearing was filed August 3, 2007. The order reflects that the court dismissed plaintiff's action against the County. Notice of entry of order was filed August 9, 2007.
Plaintiff filed a notice of appeal on July 23, 2007, with the appellate division of Superior Court in which he appealed from the "Ruling on Defendant's Demurrer." According to a notation on the notice of appeal, the appellate department received plaintiff's notice of appeal on September 10, 2007. This court received a copy of the notice of appeal on September 28, 2007.
Appealability
Initially, we must face the issue of whether the order from which this appeal was taken is properly appealable. "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. [Citations.]" (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) An order sustaining a demurrer without leave to amend is not appealable. (Berri v. Superior Court (1955) 43 Cal.2d 856, 860.) However, an appeal is proper after entry of a dismissal on such an order. (Ibid.) Since the order after hearing dismissed the action as against the County, and because all written dismissals ordered, signed and filed by the court in the action "shall constitute judgments and be effective for all purposes" (Code Civ. Proc., § 581d), we deem the order on the demurrer to incorporate a judgment of dismissal and will review the order. (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1098.)
Code of Civil Procedure section 581d states in full: "A written dismissal of an action shall be entered in the clerk's register and is effective for all purposes when so entered. [¶] All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case."
On January 8, 2008, plaintiff filed a request to dismiss the "entire action of all parties and all causes of action" in this case "without prejudice."
We liberally construe the July 23, 2007, notice of appeal from the nonappealable order to be an appeal from the August 30, 2007 dismissal of plaintiff's action against the County. (Cal. Rules of Court, rules 8.100(a)(2) and 8.104(e).) We deem plaintiff's notice of appeal to be filed immediately after the August 30, 2007, dismissal of the action. Accordingly, we find the appeal is timely.
Discussion
On appeal, plaintiff argues that the court below erred by sustaining the County's demurrer based on Government Code section 844.6. Plaintiff contends that his injuries "(emotional distress/fear of cancer)" occurred from the dangerous condition of the Salinas courthouse. Accordingly, plaintiff argues that Government Code section 844.6 does not prevent recovery from a public entity.
A public entity such as the County is not liable for an injury arising out of an act or omission of the public entity or its employees except as provided by statute. (Gov. Code, § 815, subd. (a).) Government Code section 815 expressly provides, "(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. [¶] (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person."
As this court noted in Odello Bros. v. County of Monterey (1998) 63 Cal.App.4th 778, 792, "The California Tort Claims Act was intended to '[abolish] all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution . . . . In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance, or regulation) is found declaring them to be liable. . . . [T]he practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.' [Citation.] In addition, under subdivision (b) of section 815, the provisions granting immunity will generally prevail over all sections imposing liability. [Citation.]"
The sole statutory basis for imposing liability on public entities as property owners is Government Code section 835. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131-1132; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438-439.) Under that statute, a public entity is "liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (§ 835.)
All undesignated section references are to the Government Code.
Nevertheless, there is an exception to liability for a dangerous condition on public property. Under section 844.6, subdivision (a)(2), a public entity is not liable for an injury to a prisoner. Specifically, section 844.6 provides, "(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814 [liability based on contract], 814.2 [workers compensation], 845.4 [interference with right of prisoner to judicial determination or review of legality of confinement], and 845.6 [failure to obtain medical care for prisoners who are in need of medical care], or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code [relating to biomedical research on prisoners], a public entity is not liable for: . . . [¶] (2) An injury to any prisoner. . . . [¶] (c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Chapter 2 (commencing with Section 830) of this part." (Italics added.)
" 'A " 'prisoner' includes an inmate of a prison, jail or penal or correctional facility" (Gov. Code, § 844). The Legislative Committee comment on this section includes as prisoners persons in the custody of a law enforcement officer although undergoing medical treatment in a county hospital, those in work camps and those engaged in fire suppression; parolees are not. From case law, the deprivation of liberty by lawful process or some kind of involuntary restraint characterizes one's status as a prisoner or inmate (Patricia J. v. Rio Linda Union Sch. Dist. [(1976)] 61 Cal.App.3d 278 . . .; Jiminez v. County of Santa Cruz [(1974)] 42 Cal.App.3d 407, 410 . . .; Larson v. City of Oakland [(1971)] 17 Cal.App.3d 91, 96 . . .; Datil v. City of Los Angeles [(1968)] 263 Cal.App.2d 655, 658 . . . .)" (Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1179-1180.) Plaintiff by his own admission was a preconviction detainee awaiting trial. Accordingly, he must have been booked and arraigned. Therefore, he was a "prisoner" for purposes of governmental immunity. (Datil v. City of Los Angeles, supra, 263 Cal.App.2d 655, 658.)
"Liability of public entities and public employees under Government Code section 845.6 is limited to serious and obvious medical conditions requiring immediate care." (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 288.)
"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. Orange County (1967) 254 Cal.App.2d 302, 306.)
Plaintiff argues that the County can be held vicariously liable on the theory of negligent supervision under section 815.2. "Public entities are . . . liable for the negligent acts or omissions of their employees acting within the scope of their employment except where either the employee or the public entity is immunized from liability by statute. [Citation.]" (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 264, italics added.) Section 844.6 provides that immunity because of plaintiff's status as a prisoner. To put it simply, governmental immunity is the rule, and liability is the exception. (Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, 63, [The Tort Claims Act was intended to make immunity the rule; liability is imposed only if provided by statute].)
Section 815.2 provides, "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative."
Plaintiff relies on three cases to argue that the trial court erred in finding the County immune from prosecution: People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480; Runyon v. Superior Court (1986) 187 Cal.App.3d 878; Lundeen Coatings Corp. v. Department of Water & Power (1991) 232 Cal.App.3d 816. Plaintiff's reliance on these cases is misplaced. In People ex rel. Dept. of Transportation v. Superior Court, supra, 5 Cal.App.4th 1480, the plaintiffs filed a complaint against the state Department of Transportation in which they alleged that they were injured when a motorist crossed the dirt median of a freeway and struck their vehicle. (Id. at p. 1483.) In Runyon v. Superior Court, supra, 187 Cal.App.3d 878, former employees of the county marshal's department brought an action against the marshal, assistant marshal, and the administrative assistant to the marshal for wrongful employment practices, intentional infliction of emotional distress, and violation of civil rights under 42 U.S.C. § 1983. (Id. at pp. 879-880.) In Lundeen Coatings Corp. v. Department of Water & Power, supra, 232 Cal.App.3d 816, a subcontractor involved in a public works project brought an action against a prime contractor, a city department of water and power, and a construction manager alleging that it was owed more than $1 million for construction services rendered. (Id. at pp. 822-824.) None of these cases involved claims by a prisoner against a public entity.
Accordingly, we turn to plaintiff's "civil rights" claims. We note that plaintiff's pleadings are difficult to understand. However, mindful that we must construe plaintiff's inartfully pleaded complaint more liberally than one drafted by a lawyer (Haines v. Kerner (1972) 404 U.S. 519, 520-521), it appears that plaintiff's complaint alleged civil rights violations based on the Eighth and Fourteenth Amendments to the federal Constitution.
Here, plaintiff argues that section 844.6 does not grant the County immunity from civil rights violations. In support of this proposition, plaintiff cites to Datil v. City of Los Angeles, supra, 263 Cal.App.2d 655 (Datil).
Specifically, plaintiff states " 'This section (§844.6) is Constitutional And does not deny due process of law[.]' Datil v. City of Los Angeles, (1968) 69 Cal.Rptr. 788, 263."
In Datil, supra, 263 Cal.App.2d 655, the widow and children of an arrestee who was killed by a fellow arrestee brought a wrongful death action against the city. The trial court found that both the deceased and the one who struck the fatal blow were prisoners within the meaning of section 844.6. (Id. at pp. 656-657.) On appeal, the widow brought a due process/equal protection challenge to the California Tort Claims Act of 1963, of which section 844.6 is a part, arguing that it was unconstitutional to the extent that it extended immunity from liability to public entities and agencies below the level of the State of California itself. (Id. at p. 660.) The Second District Court of Appeal disagreed with the widow finding that in all of the cases in which "the Tort Claims Act of 1963 has been subjected to constitutional attack to date, the appellate courts have upheld its constitutionality. (See County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839 . . .; Reed v. City & County of San Francisco (1965) 237 Cal.App.2d 23 . . . .)" (Id. at pp. 660-661.) We are perplexed as to why plaintiff thinks that the Datil case supports his assertion that section 844.6 does not grant immunity from civil rights violations. Plaintiff has either misread or misunderstood the holding of Datil.
Giving plaintiff's complaint the most expansive reading we can, plaintiff might have been trying to assert a Title 42 United States Code section 1983 claim. Title 42 United States Code section 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."
Unfortunately, plaintiff has no cause of action directly under the United States Constitution. A litigant seeking damages based on a violation of a constitutional right must rely on Title 42 United States Code section 1983. (Azul-Pacifico, Inc. v. City of Los Angeles (9th Cir.1992) 973 F.2d 704, 705; Graham v. Connor (1989) 490 U.S. 386, 393-394, [42 U.S.C. section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred].)
Plaintiff argues being forced into a dangerous condition at the Salinas courthouse was "cruel and unusual." By this we take it to mean that plaintiff is arguing that his rights under the Eighth Amendment were violated. Unfortunately, plaintiff is not entitled to relief under the Eighth Amendment because the Eighth Amendment applies only to convicted prisoners. (Bell v. Wolfish (1979) 441 U.S. 520, 535, fn. 16.) Where the State seeks to impose punishment without a formal adjudication of guilt, the pertinent constitutional guarantee is the due process clause of the Fourteenth Amendment. (Ibid.)
However, even if this court were to assume for the sake of argument that plaintiff could establish that his confinement in the holding cells at the Salinas courthouse constituted punishment, violating his Fourteenth Amendment rights, plaintiff's claim against the County must fail.
In terms of punishment, a prisoner's Eighth Amendment right to be free from cruel and unusual punishment and a pretrial detainee's right to due process of law are comparable. (Frost v. Agnos (9th Cir. 1998) 152 F.3d 1124, 1128.) However, "while the eighth amendment proscribes cruel and unusual punishment for convicted inmates, the due process clause of the fourteenth amendment proscribes any punishment of pretrial detainees." (Redman v. County of San Diego (9th Cir. 1991) 942 F.2d 1435, 1441, fn. 7.)
To prevail on a Title 42 United States Code section 1983 claim, the claimant must prove that conduct by a person acting under color of state law deprived the claimant of a federal constitutional or federal legal right. (Gibson v. United States (9th Cir.1986) 781 F.2d 1334, 1338 [to state a cause of action under § 1983, a plaintiff must plead that the defendant acted under color of state law and deprived plaintiff of rights secured by the Constitution or federal statutes]; West v. Atkins (1988) 487 U.S. 42, 49.) A municipality is considered a person under Title 42 United States Code section 1983. (Monell v. Dept. of Soc. Serv. of City of New York (1978) 436 U.S. 658, 690 (Monell).)
A municipality violates Title 42 United States Code section 1983 if the tort occurred due to "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." (Monell, supra, 436 U.S. at p. 690.) Liability may also be premised on "a widespread practice that, although not authorized by written law or express municipal policy, is 'so permanent and well settled as to constitute a "custom or usage" with the force of law.' [Citation.]" (City of St. Louis v. Praprotnik (1988) 485 U.S. 112, 127.) "A 'policy' is ' "a deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." ' [Citations.] A 'policy' can be one of action [citation], or inaction [citations]." (Fairley v. Luman (9th Cir. 2002) 281 F.3d 913, 918.)
Nevertheless, the law is settled that "a municipality [such as the County] cannot be held liable under § 1983 on a respondeat superior theory." (Monell, supra, 436 U.S. at p. 691.) Rather, a plaintiff must allege that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized County policy. (Id. at pp. 690-691.) The County's liability "must be based upon its own tortious actions or omissions, not those of its employees." (Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 526.) The County cannot be liable " 'for an injury inflicted solely by its employees or agents.' " (Id.at p. 525.) Since plaintiff did not allege facts sufficient to satisfy the Monell predicate for municipal liability, we must affirm the dismissal of plaintiff's case against the County.
Conclusion
In sum, because plaintiff was a prisoner at the time of his alleged exposure to asbestos, and he claimed injury from a dangerous condition on public property against the County, we conclude that the County is immune from liability for all common law claims raised in plaintiff's complaint. Accordingly, we conclude that the trial court did not err in sustaining County's demurrer.
Furthermore, plaintiff's claims of civil rights violations were not properly pleaded in his complaint. Plaintiff did not allege facts sufficient to show the alleged action inflicting injury flowed from either an explicitly adopted or a tacitly authorized County policy.
Finally, plaintiff does not argue that his first amended complaint can be amended to state a valid cause of action. It was plaintiff's burden in the trial court, and it is his burden here, to show that the first amended complaint could be further amended to state a cause of action. (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 18.) Plaintiff did not provide this court with a copy of the reporter's transcript of the proceeding below, so we do not know if he made any argument there that he could amend his complaint to state valid causes of action. We do know that plaintiff makes no such argument in this court. Accordingly, we conclude that the trial court did not err in sustaining County's demurrer without leave to amend.
Disposition
The judgment is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR: RUSHING, P. J., BAMATTRE-MANOUKIAN, J.