Opinion
E064675
04-10-2017
MARIA LEAL et al., Plaintiffs and Appellants, v. COUNTY OF SAN BERNARDINO et al., Defendants and Respondents.
Eisenberg Law Firm and Mark W. Eisenberg for Plaintiffs and Appellants. Alvarez-Glasman & Colvin, Roger A. Colvin and Vincent C. Ewing for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1500080) OPINION APPEAL from the Superior Court of San Bernardino County. Bryan Foster and Brian S. McCarville, Judges. Affirmed in part; reversed in part with directions. Eisenberg Law Firm and Mark W. Eisenberg for Plaintiffs and Appellants. Alvarez-Glasman & Colvin, Roger A. Colvin and Vincent C. Ewing for Defendants and Respondents.
Ernesto Quintero (Quintero), the adult son of plaintiffs and appellants Maria Leal and Nicholas Quintero (plaintiffs), died while in custody at a county jail. Plaintiffs attribute his death to failure to provide adequate medical care; Quintero had a history of asthma, heroin dependency, and addiction to other drugs.
In this appeal, plaintiffs challenge the trial court's order sustaining without leave to amend the demurrer of defendants and respondents County of San Bernardino (the County), San Bernardino Sheriff's Department (the Department), John McMahon (McMahon), and Jeff Rose (Rose) to plaintiffs' first amended complaint (FAC). We find that plaintiffs should have been granted leave to amend with respect to their claims against all defendants except McMahon, and therefore reverse the judgment in part.
McMahon is described in the complaint as "an elected official, governmental employee and the acting Sheriff for the County of San Bernardino." (Some capitalization omitted.) Plaintiffs filed a dismissal with prejudice with respect to McMahon on March 26, 2015, before defendants' demurrer to the FAC was filed. Nevertheless, defendants' demurrer also purports to be brought on his behalf, and no separate judgment with respect to him was entered.
Rose is described in the complaint as "a captain and employee of Defendant, San Bernardino Sheriff's Department" and "the highest ranking official responsible for supervision of the West Valley Detention Center . . . ." (Some capitalization omitted.)
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the FAC, Quintero "was admitted as an inmate to the West Valley Detention Center located in Rancho Cucamonga, California," on June 7, 2013. He "had a history of asthma, heroin dependency, and addiction to other drugs," of which defendants were aware. Plaintiffs allege that he began "exhibiting signs and/or symptoms of acute drug withdrawal, including, but not limited to, cardiovascular and pulmonary distress" late on June 11, 2013.
Plaintiffs further allege that on June 12, 2013, Quintero was too sick to attend a scheduled court appearance, but nevertheless received no medical attention, despite requests by him and by other inmates on his behalf. His condition worsened by that evening, to the point that he became nonresponsive. Shortly before midnight, a "'code blue'" was called, and medical personnel responded. Quintero was "found lying on the floor pulseless, cyanotic, with coffee ground secretions coming from his mouth." Efforts to resuscitate him were unsuccessful.
The first lawsuit to arise out of Quintero's death was filed in federal court; plaintiffs, in their capacity as the personal representatives of Quintero's estate, filed their "Survival Action Complaint for Wrongful Death and Violation of Civil Rights Pursuant to 42 [United States Code section] 1983" on June 20, 2014, in the United States District Court for the Central District of California. In December 2014, plaintiffs filed a motion to amend that complaint to add claims asserted in their individual capacities, seeking to correct errors that were the product of their counsel's "inadvertence and inartful drafting." The district court denied the motion on January 6, 2015. The parties ultimately stipulated to the dismissal of the action with prejudice, and it was dismissed on that basis on March 6, 2015.
Plaintiffs' counsel in the federal action was the same attorney who has represented them, both in the trial court and on appeal, in the present case.
Meanwhile, on January 9, 2015, plaintiffs filed the present action. Prior to any responsive pleading by defendants, plaintiffs filed the FAC, which is entitled "First Amended Complaint for Wrongful Death Based Upon Civil Rights Violations (42 U.S.C. § 1983) . . . ." The suit is characterized in the FAC as a "wrongful death action pursuant to California Code of Civil Procedure § 377.60," asserting claims "authorized pursuant to 42 [United States Code section] 1983." The FAC includes five purported causes of action, styled as follows: (1) "Wrongful Death Based Upon Violation of Civil Rights By Denial of Medical Care—42 USC § 1983," against the County and the Department; (2) "Violation of Civil Rights—Municipal Liability Pursuant to Monell v. New York City Dept. of Soc. Svcs. (1978) 436 U.S. 658," against the County and the Department; (3) "Violation of Civil Rights—Municipal Liability Pursuant to Monell v. New York City Dept. of Soc. Svcs. (1978) 436 U.S. 658," against all defendants; (4) "Wrongful Death Based Upon Violation of Civil Rights by Infliction of Cruel and Unusual Punishment During Conditions of Confinement—42 USC § 1983," against all defendants; and (5) "Violation of Civil Rights—Supervisory Liability Pursuant to Weaver v. State of California (1998) 63 Cal.App.4th 188)," against McMahon and Rose. (Some capitalization omitted.) With respect to each of these causes of actions, plaintiffs assert that they suffered "economic wrongful death damages" and "wrongful death non-economic damages."
Defendants removed the action to federal court, but the federal court remanded it, finding a lack of subject matter jurisdiction. After remand, defendants filed their demurrer to the FAC. The trial court sustained the demurrer without leave to amend, finding that plaintiffs lacked standing in their capacity as Quintero's heirs to bring an action under 42 United States Code section 1983, and that the suit was not timely filed under the California Tort Claims Act.
Plaintiff's government tort claim was rejected on January 2, 2014.
II. DISCUSSION
A. Standard of Review.
On an appeal from a judgment of dismissal on a demurrer, we treat the plaintiffs' properly pleaded factual allegations as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) We do not accept as true contentions, deductions, or conclusions of fact or law. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) "Our standard of review is de novo, 'i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.'" (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.) "We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale." (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.) Moreover, "the appeal of a judgment of dismissal after sustaining of a demurrer without leave to amend requires the consideration of whether the allegations state a cause of action under any legal theory. [Citation.] Under these circumstances, new theories may be advanced for the first time on appeal. [Citation.]" (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 85.)
We review the trial court's determination not to grant leave to amend for abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In making this determination, "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." (Ibid.) The plaintiff has the burden of proving the possibility of cure by amendment. (Ibid.) However, "'such a showing can be made for the first time to the reviewing court . . . .'" (San Diego City Firefighters, Local 145 v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 606 (San Diego City Firefighters).)
B. Analysis.
1. Defendants' Demurrer to the FAC Was Properly Sustained.
Suits in state court for wrongful death of a relative based on alleged violations of the decedent's federal constitutional rights are governed by the state's wrongful death statutes: "This is because the federal courts have held that although no remedy is expressly provided under the federal Civil Rights Act for the death of a relative, section 1988 incorporates the state wrongful death statutes into section 1983 actions in order to effectively implement the policies of the federal act." (Alvarez v. Wiley (1977) 71 Cal.App.3d 599, 604 (Alvarez).) Plaintiffs therefore were required to comply with the requirements of the California Tort Claims Act, including the time for bringing suit, for the FAC to survive demurrer. (See, e.g., Martinez v. County of Madera (E.D. Cal. Oct. 11, 2005, 1:04-CV-05919 OWW SMS) 2005 U.S. Dist. LEXIS 45002, at *13-14 [granting motion to dismiss because of, inter alia, failure to comply with California Tort Claims Act prerequisites for damages claims against a public entity].)
Plaintiffs cite to Williams v. Horvath (1976) 16 Cal.3d 834 (Williams) and similar cases for the proposition that the California Tort Claims Act's requirements are "inapplicable to claims brought in California state courts where founded upon 42 [United States Code section] 1983." In Williams and each of the other cases cited, however, the plaintiffs assert violations of their own constitutional rights, not wrongful death claims arising from the death of a relative allegedly as a result of a deprivation of the relative's constitutional rights. (See, e.g., Williams, supra, at p. 836 [plaintiff minors alleged they suffered assault and battery, false imprisonment, and threats by the defendant police officers, depriving the minors of their federal constitutional rights].) The rule stated by Williams and similar cases is not applicable to wrongful death claims, such as those alleged in the FAC. (See Alvarez, supra, 71 Cal.App.3d at p. 604.)
Applying well established principles regarding wrongful death suits against public entities under the California Tort Claims Act, all the claims asserted in the FAC are incurably time-barred. The limitations period for such claims is six months after the denial of the plaintiff's government tort claim. (Gov. Code, § 945.6, subd. (a)(1).) Plaintiffs' tort claim was denied by the County on January 2, 2014. The present lawsuit was filed more than a year later, on January 9, 2015. No appropriate basis for tolling the limitations period for any portion of that year appears in our record, and plaintiffs have not proposed that they could plead any such basis.
Plaintiffs argue on appeal that the FAC should be treated as asserting not a wrongful death claim, but rather a "viable, directly actionable 1983 claim in their capacity as parents of a decedent child . . . for the unconstitutional deprivation of their Fourteenth Amendment right of companionship and society of their adult child." This interpretation of the FAC, however, finds remarkably little support in its text. The FAC describes the suit as a "wrongful death action pursuant to California Code of Civil Procedure § 377.60," the state wrongful death statute, and alleges that plaintiffs suffered "economic wrongful death damages" and "wrongful death non-economic damages . . . ." Plaintiffs never explicitly allege that they suffered a violation of their constitutional rights.
To be sure, the FAC repeatedly invokes 42 United States Code section 1983, and alleges constitutional violations. But the alleged violations were not of plaintiffs' own rights; instead, they repeatedly assert that Quintero's rights were violated by defendants in various respects, resulting in his death. This is not a circumstance where a cause of action is mislabeled as the wrong type of tort, but the facts alleged nevertheless show the plaintiff to be entitled to relief. (Cf., e.g., Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 92, 98 [complaint stated a cause of action for fraudulent concealment, though labeled as fraud based on affirmative misrepresentation]; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908-909 [cause of action mislabeled as fraud adequately stated claim for professional malpractice by insurance agent].) Rather, plaintiffs argue that their complaint, asserting on its face one type of claim (wrongful death, based on injuries suffered directly by Quintero), should be treated as a fundamentally different type of claim (a constitutional injury suffered directly by plaintiffs). We are not persuaded that the "well-established principle that a court is not bound by the captions or labels of a cause of action in a pleading" may be extended so far. (Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281.) Moreover, in their opposition to defendants' demurrer, plaintiffs described their lawsuit as a "purely wrongful death action." We find no error in the trial court's decision to accept plaintiffs' own description of their claims at face value.
Plaintiffs also argue that the demurrer should have been overruled because of certain purported procedural defects. Not so. Code of Civil Procedure section 430.60 provides: "A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded." (Italics added.) Even assuming defendants' demurrer was procedurally defective in some respects, the trial court did not abuse its discretion by considering the demurrer on the merits. Although plaintiffs assert that they were prejudiced by the purported defects, nothing in the record supports that conclusion.
In short, the causes of action asserted in the FAC are all wrongful death claims, which are barred as untimely under the California Tort Claims Act. The trial court therefore properly sustained defendants' demurrer.
2. Plaintiffs Should Be Granted Leave to Amend.
Plaintiffs argue that, even if they failed to do so in the FAC, they could amend their claims to assert a viable claim for violation of their own constitutional rights, in their capacity as Quintero's parents, based on Curnow v. Ridgecrest Police (9th Cir. 1991) 952 F.2d 321 (Curnow) and its progeny. Unlike their previously pleaded wrongful death claims, such a cause of action for violation of plaintiffs' own rights pursuant to 42 United States Code section 1983 would not be barred for failure to comply with the prerequisites for suit against a public entity under the California Tort Claims Act. (E.g., California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 38.) We agree that plaintiffs should be granted an opportunity to file an amended complaint.
A recent federal case arising from similar facts, Smith v. Pierce County (W.D. Wash., Nov. 4, 2016, No. C16-5667 BHS) 2016 U.S. Dist. LEXIS 153627 (Smith), is instructive. Smith, too, involved a suit brought by the parents of an adult son who died while in custody in county jail because, according to the parents, jail officials responded inadequately to a medical emergency. (Id. at pp. *2-3.) Citing Curnow and similar cases, the district court found that the parents could not only bring a survival action in their capacity as the personal representatives of the decedent's estate, but also assert in their individual capacities "42 [United States Code section] 1983 substantive due process claims for the loss of society and companionship of their adult nondependent son." (Smith, supra, at pp. *5-13 [quote at *12-13].) The district court allowed plaintiffs to proceed with such claims against the defendant county on a theory of municipal liability, as well as against the individual defendants. (Id. at pp. *8-19.) And the court noted that the plaintiffs "need not show standing under state survival and wrongful death statutes to bring claims for an alleged violation of their own constitutional rights." (Id. at p. *13.)
Defendants concede that generally "parents do have standing to bring their own individual [section] 1983 claims under Curnow," arguing only (albeit persuasively, as discussed above) that the FAC did not assert any such claim. They have advanced no reason why plaintiffs could not possibly amend their complaint to assert such a claim, and none appears from our examination of the record. The reasoning of the district court in Smith applies equally well, so far as we can determine from the present record, to the facts of this case.
This concession obviates the need for us to discuss the circumstance that the federal circuit courts "are divided on the issue of whether the Due Process Clause protects a parent's right to the companionship of his or her adult son." (McCurdy v. Dodd (3d Cir. 2003) 352 F.3d 820, 828-829.) To our knowledge, no California appellate court has addressed the issue; Curnow has not been cited in any published California appellate opinion. We note briefly, however, that in any case we would be inclined to agree with the approach taken by the Ninth Circuit in Curnow and its progeny, including Smith. --------
Defendants note that plaintiffs failed to raise any arguments based on Curnow in the trial court. We are indeed "loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider." (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) Nevertheless, it is well established that the required showing that a complaint could be amended to state a cause of action may be made for the first time on appeal. (San Diego City Firefighters, supra, 206 Cal.App.4th at p. 606.)
Because plaintiffs have met their burden of showing the possibility of amending their complaint to state a valid cause of action, we must reverse the judgment in part, and remand with directions that plaintiffs be given an opportunity to file an amended complaint asserting claims against all defendants except McMahon. (See fn. 1, ante.)
3. Costs on Appeal.
Plaintiffs request an award of costs on appeal. Our conclusion that plaintiffs should be permitted leave to file an amended complaint renders them the prevailing party in this appeal, so they would generally be entitled to such an award. (Rules of Court, rule 8.278(a)(1)(3).)
In the present case, however, plaintiffs have prevailed by raising an argument that could have been but was not presented in the trial court. Although the Smith case is recent, Curnow is hardly new authority, and there is a developed body of case law regarding parents' due process rights with respect to their adult children. Plaintiffs' claims based on Curnow could have and should have been raised in their first lawsuit filed in federal court, asserted in the complaints previously filed in the present action, or at least raised in opposition to defendants' demurrer to the FAC in connection with a request for leave to amend. They were not. In such a circumstance, in the interests of justice, we do not deem it proper to require defendants to pay plaintiffs' costs on appeal, regardless of the outcome. (Rules of Court, rule 8.278(a)(5).)
III. DISPOSITION
The judgment in favor of John McMahon is affirmed. The judgment as to the remaining defendants is reversed, and the matter is remanded to the trial court with directions to grant plaintiffs leave to file an amended complaint. The parties shall each bear their own costs on appeal. (Rules of Court, rule 8.278(a)(1)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J. We concur: RAMIREZ
P. J. CODRINGTON
J.