Opinion
D071116
09-15-2017
TATYANA STARR, Plaintiff and Appellant, v. MICHAEL EZELL et al., Defendant and Respondent.
Suppa, Trucchi and Henein and Teresa Trucchi for Plaintiff and Appellant. Cole Pedroza, E. Todd Chayet and Kenneth R. Pedroza; Robert A. Cosgrove & Associates and Robert A. Cosgrove 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2015-00030002-CU-MM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed. Suppa, Trucchi and Henein and Teresa Trucchi for Plaintiff and Appellant. Cole Pedroza, E. Todd Chayet and Kenneth R. Pedroza; Robert A. Cosgrove & Associates and Robert A. Cosgrove for Defendants and Respondents.
Tatyana Starr, as the successor in interest to her deceased sister, Elena Serebryakova, appeals a judgment entered after the trial court sustained without leave to amend the demurrer brought by defendants Palomar Health and one of its nurses, Michael Ezell (together, Respondents). Serebryakova sued Palomar Health and members of its staff for placing a Welfare and Institutions Code section 5150 psychiatric hold on her when she voluntarily reported to a Palomar Health emergency room with suicidal ideations. The psychiatric hold triggered a statutory firearm restriction and a workplace fitness-for-duty evaluation that impacted Serebryakova's employment as a Customs and Border Protection officer. Serebryakova alleges Respondents lacked probable cause to place her on an involuntary section 5150 hold because she voluntarily sought psychiatric care. The trial court sustained Respondents' demurrer on Government Code immunity grounds. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
Section 5150, subdivision (a), which is part of the Lanterman-Petris-Short Act (LPS Act; §§ 5000 et seq.), authorizes certain professionals to take a "person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention" if the professional has probable cause to believe the person poses a danger to herself or others due to a mental health disorder. (§ 5150, subd. (a); see Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1343, fn. 3.)
FACTUAL AND PROCEDURAL BACKGROUND
On appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend, we assume the truth of the properly pleaded or implied factual allegations, as well as matters that may be judicially noticed. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) Thus, we often refer to the allegations in the operative complaint without the introductory phase "Starr alleges."
As of 2014, Serebryakova had been employed as a Customs and Border Protection officer (or in a similar role for a predecessor agency) for about 19 years. Her job duties required that she carry a firearm, though she had never pulled or discharged her firearm in the line of duty. In late 2012 or early 2013, she began having conflicts with a new supervisor, which caused Serebryakova to experience significant stress and anxiety over possibly losing her job.
In September 2014, Serebryakova consulted with her treating psychiatrist, Dr. Nicodemus Garcia, to whom "she expressed a thought of overdosing on her medications to obtain relief from the stress and anxiety caused by the situation at her employment." Dr. Garcia tried to find a room for Serebryakova at Sharp Mesa Vista Hospital, but upon learning none were available, recommended to Serebryakova that she report to the emergency room at Palomar Health's Pomerado Hospital.
Serebryakova "reported voluntarily" to the Pomerado Hospital emergency room, where she sought "treatment voluntarily" and "expressed a willingness to be admitted to the hospital." Defendant Michael Ezell, the psychiatric liaison nurse on duty, advised Serebryakova "that he would need to place a '5150 hold' in order to admit [her] for treatment." Serebryakova alleges she was not informed and did not understand what a "5150 hold" was, or that it would result in a restriction on her ability to possess firearms. Defendant John Anshus, M.D. (who is not a party to this appeal) signed Serebryakova's section 5150 application, whereupon she was detained.
Section 8102, subdivision (a) provides: "Whenever a person, who has been detained or apprehended for examination of his or her mental condition . . . is found to own, have in his or her possession or under his or her control, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon."
Serebryakova was transferred to PMC Mental Health Service Department, where she "was voluntarily admitted," evaluated, and treated. The record does not indicate the date or circumstances under which Serebryakova was discharged, but the operative pleading alleges she "thereafter received treatment at Sharp Mesa Vista Hospital" and that she "voluntarily completed all of the outpatient treatment recommended by her physicians."
Palomar allegedly was aware it lacked probable cause to impose a section 5150 hold on a patient who, like Serebryakova, "voluntarily reports to the hospital and consents to treatment." However, Palomar allegedly placed a section 5150 hold on Serebryakova, "in part," "for the improper purpose of obtaining insurance benefits and/or eligibility for admission and not because there was probabl[e] cause for imposing an involuntary detention under [section] 5150 as her admission was voluntary."
The section 5150 hold subjected Serebryakova to a statutory firearm restriction (which was inconsistent with her job duties) and a " 'Fitness for Duty' " evaluation at her employment. Serebryakova unsuccessfully challenged the firearm restriction in the superior court, but our court reversed, finding the People had not met their burden of maintaining the firearm restriction. (See People v. Serebryakova (Mar. 22, 2016, D068006) [nonpub. opn.] (Serebryakova I).) Serebryakova died of a sudden cardiac event the day before the opinion in Serebryakova I was filed.
On our own motion, we take judicial notice of our court's nonpublished opinion in Serebryakova I. (Evid. Code, §§ 451, subd. (a), 459, subd. (a)(2); see Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 37 & fn. 2.) However, we deny Respondents' request that we also take judicial notice of the appellate record in that case. Although we "may take judicial notice of the existence of each document in a court file, [we] can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments." (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Because Respondents' request is not directed to the latter category of documents, judicial notice is not appropriate.
The fitness evaluation remained unresolved when Serebryakova died. However, in a psychiatric report prepared in connection with it, Dr. Dominick Addario opined Serebryakova "at no time warranted a [section] 5150 hold" because those "are reserved for individuals who have absence of insight into their difficulties and are essentially refusing treatment," whereas "Serebryakova was clearly voluntary, accepting and willing" to receive treatment. Dr. Addario characterized Serebryakova's section 5150 hold as "a significant administrative misjudgment on the part of staff at Pomerado Hospital . . . because [she] had passive suicidal ideation, even though she was fully compliant and voluntary." This led Dr. Addario to conclude it was "more plausible" that Pomerado Hospital placed Serebryakova on a section 5150 hold to "justify [a hospital bed] for insurance purposes" than for "clinical reasons."
After satisfying Government Claims Act presuit claim requirements (Gov. Code, § 810 et seq.), Serebryakova filed this lawsuit. In the operative first amended complaint (complaint), Starr (as Serebryakova's successor in interest) asserts causes of action for negligence and negligence per se against Palomar Health, "psychiatric liaison RN" Ezell, and admitting physician Dr. Anshus. The gravamen of each claim is that the defendants breached duties owed to Serebryakova not to impose a section 5150 hold on her without probable cause, which allegedly was lacking because she voluntarily sought psychiatric care. The complaint seeks damages consisting of (among other things) attorney fees incurred in the litigation that culminated in Serebryakova I, professional fees paid to Drs. Garcia and Addario in connection with the firearms restriction and fitness evaluation proceedings, lost wages and earning capacity, and emotional distress.
Respondents demurred to the complaint on the basis of statutory immunities set forth in the Government Code and Welfare and Institutions Code. (Gov. Code, §§ 820.2, 855.6, 856, 855.8; § 5278.) Starr's opposition addressed the Welfare and Institutions Code immunity provision and only one of the Government Code provisions (Gov. Code, § 856). The trial court found that Starr's failure to address the remaining Government Code provisions "impliedly concede[d] Palomar Health and Ezell are immune" under those provisions. Accordingly, the court sustained their demurrer without leave to amend.
Dr. Anshus also demurred, but solely on the basis of Welfare and Institutions Code immunity. (§ 5278.)
The trial court overruled Dr. Anshus's demurrer, finding there were "factual issues that are beyond the scope of demurrer" regarding the existence of probable cause to involuntarily detain Serebryakova. The case proceeded with respect to Dr. Anshus.
The trial court entered judgment in favor of Respondents. Starr appeals.
DISCUSSION
Starr contends that because Respondents allegedly lacked probable cause to confine Serebryakova under section 5150 (because she voluntarily sought psychiatric care for her suicidal ideations), the trial court erred in sustaining Respondents' demurrer on Government Code immunity grounds. She further contends the alleged lack of probable cause precludes us from affirming the judgment based on LPS Act immunity (§ 5278). We conclude the Government Code bars Starr's claims against Respondents, and affirm on that basis. We therefore do not address whether the LPS Act immunity statute also applies.
I. Demurrer Standards
In our review of a judgment of dismissal following the sustaining of a demurrer without leave to amend, "we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose." (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) We continue to assume the truth of the properly pleaded or implied factual allegations, as well as matters that have been judicially noticed. (Schifando, supra, 31 Cal.4th at p. 1081.) However, we do not assume the truth of contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry).) We affirm the judgment if it is correct on any ground stated in the demurrer. (Ibid.) We presume the trial court's ruling is correct, and the appellant has the burden of affirmatively establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).)
We review for an abuse of discretion the trial court's decision not to grant leave to amend. (Aubry, supra, 2 Cal.4th at p. 971.)
II. Relevant Legal Principles
"Under the LPS Act, a person who is dangerous or gravely disabled due to a mental disorder may be detained for involuntary treatment. However, in accordance with the Legislative purpose of preventing inappropriate, indefinite commitments of mentally disordered persons, such detentions are implemented incrementally." (Ford v. Norton (2001) 89 Cal.App.4th 974, 979.) The "first step" in the commitment process is a "72-hour treatment and evaluation" hold authorized by section 5150. (Ford, at p. 979.) Under this code section, certain officials (including law enforcement and certain medical professionals) are authorized to bring an individual to a designated mental health facility for evaluation if there is "probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled." (§ 5150, subd. (e).) Depending on the outcome of the evaluation, the LPS Act may authorize commitment beyond the initial 72-hour period. (See, e.g., § 5250 [intensive 14-day treatment]; § 5260 [extended commitment for the suicidal]; § 5300 [180-day commitment for the imminently dangerous]; §§ 5350, 5352.1, 5361 [30-day temporary conservatorship for the gravely disabled]; Gonzalez v. Paradise Valley Hospital (2003) 111 Cal.App.4th 735, 740, fn. 4 (Gonzalez).)
Section 5150, subdivision (a) provides in part: "When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services."
Although a violation of section 5150 may give rise to civil liability under certain circumstances (see Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 382 (Julian)), there are numerous statutory immunities available to defendants. These immunities reflect a legislative intent to eliminate concerns about future liability when a designated professional is required to undertake the "delicate and difficult" task of deciding whether to detain a person under section 5150. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 448 (Tarasoff); see Jacobs v. Grossmont Hospital (2003) 108 Cal.App.4th 69, 75-76 (Jacobs).) " 'Immunity is extended . . . because reasonable decisions as to how to control particular patients should not be chilled, at the time they are made, by the prospect of liability.' " (Johnson v. County of Ventura (1994) 29 Cal.App.4th 1400, 1410 (Johnson).) Because the decision "requires the careful exercise of judgment in evaluating whether, as a result of mental disorder, a person poses a danger to others or to himself or herself" (Jacobs, at pp. 75-76), the "prospect of liability for initiating a 72-hour hold would frustrate and impede the Legislature's intent to provide prompt evaluation and treatment for the mentally ill and to ensure public safety" (id. at p. 76; see Ley v. State of California (2004) 114 Cal.App.4th 1297, 1305 ["The Legislature has determined that there is an overriding 'benefit[] to society' by granting such immunity."]).
Consistent with these principles, section 5278 (part of the LPS Act) provides that "[i]ndividuals authorized . . . to detain a person for 72-hour treatment and evaluation pursuant to . . . Section 5150 . . . shall not be held either criminally or civilly liable for exercising this authority in accordance with the law." (Italics added.) Our court has construed the italicized language as providing immunity only when the decision under section 5150 "is supported by probable cause." (Jacobs, supra, 108 Cal.App.4th at p. 76; Gonzalez, supra, 111 Cal.App.4th at p. 741.)
However, the existence of probable cause was not at issue in either Jacobs or Gonzalez. (Jacobs, supra, 108 Cal.App.4th at p. 74; Gonzalez, supra, 111 Cal.App.4th at p. 740.) Rather, those cases addressed whether section 5278 immunity applies to claims arising from negligent care provided during the commitment—that is, after the decision to confine had been made. (Jacobs, at p. 71; Gonzalez, at pp. 741-742.)
The Government Code also accords broad tort immunities to public entities and employees. Except as otherwise provided by statute, "[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." (Gov. Code, § 815, subd. (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 . . . ." (Gov. Code, § 815.2, subd. (a).) However, "a public entity is not liable for an injury resulting from the act or omission of an employee of the public entity where the employee is immune from liability." (Gov. Code, § 815.2, subd. (b).)
Several Government Code immunity provisions relate to determinations regarding confinement in mental health facilities. (See Gov. Code, §§ 856, 855.6, 855.8; Johnson, supra, 29 Cal.App.4th at pp. 1407-1410; Tarasoff, supra, 17 Cal.3d at pp. 447-448.) Government Code section 856, subdivision (a)(1) provides: "Neither a public entity nor a public employee acting within the scope of his employment is liable for any injury resulting from determining in accordance with any applicable enactment: [¶] (1) Whether to confine a person for mental illness or addiction." In this context, the definition of " 'confine' includes admit, commit, place, detain, or hold in custody." (Gov. Code, § 854.5.)
California courts have long recognized that Government Code section 856, subdivision (a)(1) confers immunity even when the confinement determination was negligently made. (See Tarasoff, supra, 17 Cal.3d at pp. 448-449; McDowell v. County of Alameda (1979) 88 Cal.App.3d 321, 327 (McDowell) ["[w]hether or not we agree with [the county's] decision is immaterial, for [Government Code] section 856 provides absolute immunity to [defendants'] determination to confine or not to confine"]; Hernandez v. State of California (1970) 11 Cal.App.3d 895, 898-901 (Hernandez).)
III. Analysis
We conclude the trial court did not err in sustaining Respondents' demurrer on Government Code immunity grounds. Starr alleges Respondents negligently detained Serebryakova under section 5150. This claim falls squarely within the immunity provided by Government Code section 856, subdivision (a)(1) for determining "[w]hether to confine a person for mental illness or addiction." As noted, California courts have construed this provision as providing immunity even when the confinement determination was negligently made, as Starr alleges is the case here. Thus, Starr's claims are barred by Government Code section 856, subdivision (a)(1), and Respondents' demurrer was properly sustained.
Starr urges us to follow Hall v. City of Fremont (9th Cir. 2013) 520 Fed.Appx. 609, which construed Government Code section 856, subdivision (a)(1) as providing immunity only when a decision to confine under section 5150 is supported by a valid probable cause finding. (Hall, at p. 612.) There, a police officer initiated a section 5150 hold on the plaintiff after she rebuffed the officer's romantic overtures. (Hall, at p. 611.) The officer whispered, " 'If you ever need help, don't hesitate to call me, I'll be there' "; the plaintiff responded, " 'I'd rather kill myself than call you.' " (Ibid.) The Hall court reasoned that because "the plain text of" Government Code section 856, subdivision (a)(1) provides immunity only to confinement determinations that are made " 'in accordance with any applicable enactment,' " a confinement under section 5150 without probable cause is not made "in accordance with [that] enactment," and, thus, the Government Code immunity does not apply. (Hall, at p. 612, italics added.)
We decline to follow Hall. First, "we are not bound by decisions of the lower federal courts." (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Second, Hall is an unpublished memorandum disposition, and thus has no precedential effect even in the federal courts. (See Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 711, citing U.S. Cir. Ct. Rules (9th Cir.), rule 36-3 ["Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion."].) Third, Hall is factually distinguishable because the police officer there did not appear to have even a colorable claim of probable cause, whereas Respondents—faced with a patient who acknowledged she needed psychiatric hospitalization due to her suicidal ideations—had at least a colorable claim of probable cause. Fourth, Hall does not address the California authorities that hold Government Code section 856, subdivision (a)(1) provides immunity even to negligent confinement determinations. (See Tarasoff, supra, 17 Cal.3d at pp. 448-449; McDowell, supra, 88 Cal.App.3d at p. 327; Hernandez, supra, 11 Cal.App.3d at pp. 898-901.) Finally, requiring a valid (as opposed to merely negligent) probable cause finding would render the immunity statute a nullity—if probable cause exists, there is no liability from which to be immune.
Citing subdivisions (b) and (c) of Government Code section 856, Starr argues confinement determinations are entitled to immunity "only if the[] determinations are carried out with due care"—that is, if they are not negligent. (Bold font omitted.) To support this argument, she emphasizes those subdivisions' use of the terms "due care," "negligent," and "wrongful." However, courts have explained that the emphasis more properly belongs on the term "carrying out," which implicates the distinction between the discretionary determination to confine a person (immune even if negligent), and the more ministerial implementation (or carrying out) of the treatment that follows that decision (not immune if negligent). (See Guess v. State of California (1979) 96 Cal.App.3d 111, 118 ["a public entity would be vicariously liable for . . . negligent or wrongful omissions on the part of its employees in carrying out ministerial acts flowing from discretionary decisions."], italics added; Tarasoff, supra, 17 Cal.3d at p. 449 & fn. 23; McDowell, supra, 88 Cal.App.3d at pp. 326-327; Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 314, 316; Jacobs, supra, 108 Cal.App.4th at pp. 79-80; Gonzalez, supra, 111 Cal.App.4th at p. 742.)
Government Code section 856, subdivision (b) provides: "A public employee is not liable for carrying out with due care a determination described in subdivision (a)." (Italics added.) Subdivision (c)(1) of this statute provides: "Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission in carrying out or failing to carry out [¶] (1) A determination to confine or not to confine a person for mental illness or addiction." (Italics added.)
This is consistent with the distinction recognized in our court's construction of section 5278, the LPS Act's immunity provision. (See Jacobs, supra, 108 Cal.App.4th at pp. 71-72; Gonzalez, supra, 111 Cal.App.4th at pp. 741-742.)
Our conclusion that Government Code section 856 grants immunity even to negligent determinations to confine under section 5150 is consistent with the LPS Act as a whole. One court recently held there is no statutory private right of action for the kind of section 5150 violation Starr alleges here (Julian, supra, 11 Cal.App.5th at pp. 377-383), and, to the extent rights of action exist under other provisions of the LPS Act, civil liability arises only in cases of intentional or knowing conduct (§§ 5150, subd. (e), 5203, 5259.1, 5270.40). This has led some federal courts to conclude "California does not recognize negligence liability for a [section] 5150 commitment." (Carlson v. San Mateo County (9th Cir. 1996) 103 F.3d 137, *2, italics added; Haines v. Brand (N.D. Cal. 2012) 2012 WL 2237366, *6, fn. 8.)
Section 5150, subd. (e) provides in part: "If . . . probable cause is based on the statement of a person other than [a person authorized under section 5150, i.e., a third party], the person shall be liable in a civil action for intentionally giving a statement that he or she knows to be false." (Italics added.)
Section 5203 provides: "Any individual who seeks a petition for courtordered evaluation knowing that the person for whom the petition is sought is not, as a result of mental disorder, a danger to himself, or to others, or gravely disabled is guilty of a misdemeanor, and may be held liable in civil damages by the person against whom the petition was sought." (Italics added.)
Section 5259.1 provides: "Any individual who is knowingly and willfully responsible for detaining a person in violation of the provisions of this article [pertaining to certification for intensive treatment] is liable to that person in civil damages." (Italics added.)
Section 5270.40 provides: "Any individual who is knowingly and willfully responsible for detaining a person for more than 30 days in violation of the provisions of Section 5270.35 [certification for up to 30 days of intensive treatment] is liable to that person in civil damages." (Italics added.)
Finally, despite the trial court's (and our) finding of immunity, Serebryakova was not left without a remedy. The LPS Act "sets forth a comprehensive scheme for its enforcement by the local director of mental health, the Director of Health Care Services, or the Director of State Hospitals, who may issue notices of violation to offending facilities, revoke a facility's designation and authorization to evaluate and treat persons detained involuntarily, and refer legal violations to a local district attorney or the Attorney General for prosecution." (Julian, supra, 11 Cal.App.5th at p. 381.) Most applicable here is the statutory scheme for restoring firearm rights (§ 8103), which Serebryakova successfully pursued through appeal.
In sum, the trial court did not err by sustaining Respondents' demurrer on Government Code immunity grounds.
Because we have concluded Respondents are immune from Starr's claims under Government Code section 856, subdivision (a)(1), we need not address the other Government Code immunity statutes they raise. --------
IV. Leave to Amend
We further conclude the trial court did not abuse its discretion in sustaining Respondents' demurrer without leave to amend. Starr asserts that she has since learned through discovery in connection with her surviving claims against Dr. Anshus that (1) Serebryakova voluntarily waited at the hospital for hours to be admitted, further supporting the assertion there was no probable cause to involuntarily detain her under section 5150; and (2) Dr. Anshus admitted Serebryakova based entirely on Ezell's recommendation, which allegedly was based in part on a desire to obtain insurance coverage and secure a hospital bed. Neither of these asserted bases warrants leave to amend.
At most, Starr's newly asserted bases relate to the determination to confine Serebryakova, a determination we have already concluded is immune under Government Code section 856, subdivision (a)(1). The fact that Serebryakova waited to be admitted, and thus was voluntarily admitted, does not negate a finding of immunity. As noted, for purposes of Government Code immunity, the definition of " 'confine' includes admit, commit, place, detain, or hold in custody." (Gov. Code, § 854.5, italics added.) The inclusion of "admit" indicates Government Code immunity applies more broadly than just to involuntary detentions or custody holds. (See, e.g., Johnson, supra, 29 Cal.App.4th at pp. 1408-1409 ["For purposes of Government Code section 856.2, the term 'confined' applies to persons voluntarily or temporarily admitted for treatment. The statute is not limited to persons who are 'confined' in a lock-up facility."].) Moreover, Starr's reasoning would allow anyone to defeat an attempted involuntary confinement under section 5150 simply by purporting to consent to treatment.
We are likewise unpersuaded by Starr's reiteration of the allegation that the determination to place Serebryakova on a section 5150 hold was motivated "in part" by a desire to obtain insurance coverage and secure a bed. The necessary implication of this allegation is that the other "part" of the basis to admit her was the fact she concededly presented at the emergency room on the advice of her treating psychiatrist and agreed she needed to be hospitalized for her suicidal ideations. Denying immunity in such a circumstance would unwisely encourage emergency room personnel to turn away suicidal patients for fear of incurring civil liability for making an "administrative misjudgment" by admitting patients under section 5150.
Finally, we conclude denial of leave to amend is all the more appropriate under the unique circumstances presented here. In finding no statutory private right of action for the type of section 5150 violation Starr alleges here, the Julian court explained that LPS Act plaintiffs typically pursue "other common law and statutory causes of action, such as negligence, medical malpractice, false imprisonment, assault, battery, declaratory relief, United States Code section 1983 for constitutional violations, and Civil Code section 52.1." (Julian, supra, 11 Cal.App.5th at p. 382.) But because Serebryakova voluntarily sought and consented to the psychiatric care she received and does not contend the care (as opposed to the determination to admit her under section 5150) fell below the standard of care (that is, it was not malpractice), the typical common law causes of action are not viable. (See, e.g., Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 496 [false imprisonment requires "nonconsensual, intentional confinement of a person"], italics added; So v. Shin (2013) 212 Cal.App.4th 652, 668-669 [assault and battery require that the "plaintiff did not consent to the touching" or offensive conduct].) Moreover, Starr does not suggest she could amend to allege any alternative statutory claims.
Accordingly, we conclude the trial court did not abuse its discretion in sustaining Respondents' demurrer without leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.