Free Response in Opposition to Motion - District Court of California - California

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HERMEZ MORENO, ESQ., SBN 72009 FRANK PEREZ, ESQ., SBN 205377 RICHARD T. COPELAND, ESQ., SBN 213605 MORENO & PEREZ A Professional Law Corporation 714 West Olympic Blvd., Suite 450 Los Angeles, CA 90015 Tel: (213) 745-6300 Fax:(213) 745-6060

Judy Perez, Esq., SBN 223019 LAW OFFICES OF JUDY PEREZ 7 453 S. Spring Street, Suite 1000 Los Angeles, CA 90013 8 Tel: (213) 622-3330 Fax: (213) 622-3335
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PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S MOTION TO DISMISS

Attorneys for Plaintiff: HENRY KODIMER, by and through his Guardian Ad Litem, LYN RAMSKILL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA HENRY KODIMER, by and through ) through his guardian ad litem, ) LYN RAMSKILL, ) ) Plaintiff, ) ) v. ) ) ) CITY OF ESCONDIDO, COUNTY ) OF SAN DIEGO, OFFICER WYSE, ) OFFICER UMSTOT, SERGEANT ) DISTEL, AND DOE DEFENDANTS 1) THROUGH 10, INCLUSIVE, ) ) ) ) Defendant(s). ) _______________________________ ) CASE NO.: 07CV2221 BEN (NLS) PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S MOTION TO DISMISS Hearing Date: July 7, 2008 Hearing Time: 10:30 a.m. Dept.: Courtroom 3

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TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE ROGER T. BENITEZ: Plaintiff HENRY KODIMER, by and through his guardian ad litem, LYN RAMSKILL, and through his attorneys, Moreno & Perez, hereby responds to and opposes Defendant COUNTY OF SAN DIEGO'S motion to dismiss as follows: MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case involves serious injuries sustained by Plaintiff Henry Kodimer, a known

11 schizophrenic, as a result of being wrongfully taken into custody and later jailed and 12 housed with the general jail population in a dormitory setting without being provided 13 access to his psychiatric medication, which proximately resulted in Mr. Kodimer diving 14 from the top of a bunk bed, resulting in quadriplegia. 15

In his Complaint, Plaintiff asserts six causes of action against Defendant County of

16 San Diego and/or its employees/Sheriff's/Sheriff's deputies: (1) the sixth cause of action 17 for civil rights violations under 42 U.S.C. Section 1983 against County employees/agents 18 DOES 6-10; (2) the seventh cause of action for failure to intervene to prevent civil rights 19 violations under 42 U.S.C. Section 1983 against County employees/agents DOES 6-10; 20 (3) the eighth cause of action for failure to train and supervise causing constitutional 21 violations under 42 U.S.C. Section 1983 against Defendant County; (4) the ninth cause of 22 action for Monell liability against Defendant County; (5) the tenth cause of action for 23 Negligence against County employees/agents Defendant DOES 6-10 and Defendant 24 County; and (6) the eleventh cause of action for violation of the Americans With 25 Disabilities Act ("ADA") 42 U.S.C. Section 12131 against County employees/agents 26 Defendant DOES 6-10 and Defendant County. 27 28 2
PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S MOTION TO DISMISS

Distilled to its essence, the County's motion to dismiss seeks the following: (1) to

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1 dismiss any allegations with respect to Fifth Amendment violations; (2) to dismiss the 2 tenth cause of action for negligence as against the County because: (a) the County claims 3 that it is immune from direct liability on state law claims; and (b) the County claims it 4 cannot be sued for negligent training and supervision; and (3) to dismiss the eleventh 5 cause of action for violation of the ADA against individual county employees. 6

Plaintiff concedes that: (1) allegations with respect to Fifth Amendment violations

7 should be removed from the complaint, and (2) that the eleventh cause of action for 8 violation of the ADA should be alleged as against the County only and not the County's 9 employees. As will be set forth below, however, while Plaintiff also concedes that he 10 may not proceed against the County on a negligent hiring/supervision theory, Plaintiff 11 disputes the County's assertion that Plaintiff may not proceed against it on any negligence 12 theory. Indeed, Plaintiff may proceed under a negligence theory directly against the 13 County and its employees pursuant to California Government Code Section 845.6 and 14 Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298. 15

Prior to filing the instant opposition, counsel for Plaintiff attempted to engage

16 County counsel to reach a stipulation allowing Plaintiff to file a First Amended 17 Complaint, as Plaintiff agrees with almost all of the assertions in the motion to dismiss, 18 and believes that any additional ambiguities in the Complaint can be clarified via a first 19 amended complaint. Unfortunately, an agreement could not be reached. 20

As will be set forth below, Plaintiff respectfully requests that this Court dispense

21 with the hearing on the instant motion, and allow Plaintiff to file a first amended 22 complaint within 20 days of the currently scheduled July 7, 2008 hearing date on this 23 matter. 24 /// 25 /// 26 /// 27 /// 28 3
PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S MOTION TO DISMISS

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II. LEGAL ANALYSIS A. Motions to Dismiss are Disfavored and Should Be Examined With Greater Scrutiny in the Context of a Civil Rights Case "The standard to be applied in ruling on a motion to dismiss claims for legal insufficiency a motion viewed with disfavor in the federal courts, (citations) is well established. In the words of the test most often applied: In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (Citations) The issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims. Moreover, in passing on a motion to dismiss, the allegations of the complaint should be construed favorably to the pleader." De La Cruz v. Tormey (9th Cir. 1978) 582 F.2d 45, 48. (Emphasis added). "The federal rules require only a `short and plain statement of the claim showing that the pleader is entitled to relief.' (Citations)." Gilligan v. Jamco Dev. Corp. (9th Cir.1997) 108 F.3d 246, 248. "The Supreme Court has explained that `it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." (Citations). In reviewing the sufficiency of a complaint, `[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'(Citations)" Id. at 249. Indeed, a dismissal under Fed.R.Civ.P. Rule 12(b)(6) is proper only in "extraordinary" cases. United States v. Redwood City (9th Cir. 1981) 640 F.2d 963, 966. Moreover, in civil rights cases, some courts have held that motions to dismiss should be scrutinized with "special care." See e.g. Gazette v. City of Pontiac (6th Cir. 1994) 41
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F.3d 1061, 1064. As set forth below, Plaintiff concedes that virtually all of the points raised by Defendant County are meritorious and can be cured by Plaintiff filing a first amended complaint. With respect to a negligence cause of action, it is clear that Plaintiff may proceed on that theory as well. Accordingly, it is respectfully requested that this Court dispense with the hearing on this matter, and allow Plaintiff 20 days leave from July 7, 2008, to file a first amended complaint. B. Plaintiff Concedes That: (1) No Fifth Amendment Violation Should Have Been Alleged; (2) No Cause of Action for Negligence Exists Against the County for Negligent Hiring/Supervision; and (3) No Cause of Action for Violation of the ADA May Be Asserted Against Individual County Employees In the sixth through ninth causes of action (as well as the eighth through eleventh causes of action via incorporation by reference), Plaintiff has alleged that one of his rights (among several others) violated under 42 U.S.C. Section 1983, was his Fifth Amendment right. This allegation was inadvertently asserted in these causes of action, and Plaintiff offers that the Fifth Amendment violation will be eliminated upon the filing of a First Amended Complaint. Similarly, in paragraphs 85 and 86 of the Complaint, Plaintiff asserts negligence theories against Defendant County on the grounds that County negligently hired and/or supervised their employees. Plaintiff concedes that he may not proceed against the County on these theories pursuant to de Villers v. County of San Diego (2007) 156 Cal.App.4th 238. Plaintiff will cure this deficiency via the filing of a First Amended Complaint. Finally, Plaintiff recognizes that the eleventh cause of action for violation of the ADA may be asserted only against the County, and not as against the County employees, and this issue can be cured via amendment. To the extent as to whether there is any confusion on the part of Defendant as to whether Plaintiff has alleged causes of action for violations of the Rehabilitation Act, FEHA, and the Unruh Civil Rights Act, which
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Plaintiff has not, these issues can similarly be cured via amendment. C. Plaintiff May Proceed Against the County and Its Employees on Negligence Theory Plaintiff has alleged that while under the custody and care of the County and its employees/agents, that said Defendants failed to provide him with the needed medication and other medical attention as required by their rules, regulations, procedures, and the law. (Complaint at para. 21). Moreover, with respect to the negligence cause of action, Plaintiff alleges that Defendant County and its agents/employees failed to provide Plaintiff with medically necessary care, by among other things, failing to provide Plaintiff with his proscribed medication. (Complaint at para. 82). Plaintiff has further alleged that he needed to be placed on suicide prevention watch. (Complaint at para. 20). Defendant County contends that it is immune from liability under a negligence theory pursuant to California Government Codes Section 844.6, 855.6 and 855.8. None of those sections are applicable here, nor do they preclude Plaintiff from proceeding on a cause of action for negligence. The California Code Section which allows Plaintiff to proceed on a negligence theory against the County and its employees in this case is Government Code Section 845.6, which provides: "Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody, but, except as otherwise provided by Sections 855.8 and 856, a public employee and the public entity where the employee is acting within the course and scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care. Nothing in this section exonerates a public employee who is lawfully engaged in the practice of one of the
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hearing arts under any law of this state from liability from injury caused by malpractice or exonerates the public entity from its obligation to pay any judgment, compromise, or settlement that it is required to pay under 844.6." (Emphasis added). In a case with facts similar to the instant matter, the California Court of Appeal, Second District, dealt with whether immunities similar to those asserted by Defendant here would be applicable. In Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, sheriffs arrested an individual for driving on the wrong side of the freeway in an attempt to commit suicide. Shortly thereafter, the wife of the individual advised the sheriffs that her husband was paranoid schizophrenic, who required immediate medication to correct suicidal tendencies. The individual was subsequently released from custody without notice to his wife or daughter, and two days later, committed suicide. Id. at 304. The wife and daughter brought suit under Government Code Section 845.6, alleging that by failing to furnish or obtain medical care for Decedent when they (the sheriffs) knew or had reason to know, that Decedent was in need of immediate medical care, that Decedent's suicide was a proximate result of that breach. Id. at 304305. The trial court sustained the County of Los Angeles demurrer without leave to amend, finding immunity was afforded under Government Code Sections 855.8 and 856. In reversing the trial court's decision, the Second District Court of Appeal opined, "Count two of Appellants' complaint alleges that Decedent's suicide was the proximate result of Respondents' breach of their statutory duty of care to a prisoner pursuant to Government Code section 845.6 by failing to summon medical care for Decedent when they knew, or had reason to know, that Decedent was in need of immediate medical care. Respondents assert that Government Code section 855.8 and 856 provide specific immunity for their failure to summon medical care. We disagree." Id. at 316. In providing the reasoning for their decision, the Johnson court explained: "Section 845.6 creates liability, under certain circumstances, which does not
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otherwise exist under the common law. `It has to do with something which exists neither privately nor publicly, an obligation of help. Under certain conditions, that is, actual or constructive knowledge of a need for immediate medical care, a duty of `reasonable action to summon' medical care is created.' ( Hart v. County of Orange (1967) 254 Cal.App.2d 302, 306, 62 Cal.Rptr. 73.) Section 845.6 creates `a newly-defined duty not applicable to private persons, created by the Legislature as a special burden to be borne by public entities under limited circumstances.' ( Id.) Although liability is created by section 845.6 `except as otherwise provided by Sections 855.8 and 856,' the exception does not preclude all liability as a matter of law. To read section 845.6 as Respondents contend, generating an illusory obligation wholly consumed by exceptions, would violate the basic rule of construction which prefers an interpretation giving effect to all statutory provisions. (Code Civ.Proc., § 1858.) As explained above, section 855.8 immunizes the failure to diagnose or to prescribe treatment, and section 856 immunizes the determination whether to confine, for mental illness or addiction. The scope of those immunities, we hold, is more limited than the scope of the general duty to summon medical care created by section 845.6. Though merely calling a doctor or other trained health care provider to examine a prisoner may be sufficient in a hypothetical case, we need not, and do not, speculate on the nature of the medical care, if any, which here should have been summoned for Decedent. That, as well as the questions of Sheriffs' actual or constructive knowledge of Decedent's need for immediate care, and of Sheriffs' reasonable action to summon or not to summon such care, are questions of fact to be determined at trial. Thus, it was error to sustain the demurrer to Appellants' second count." Id. at 317.
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(Emphasis added). It is clear, therefore, that Plaintiff may proceed on a negligence theory in this case. Plaintiff has alleged that he was denied immediately necessary medical care, and that he was harmed as a result. None of the immunities asserted by Defendant are applicable in this case as established in Johnson. Plaintiff notes, however, that because the nature of the allegation seems unclear to Defendant, and further, because Plaintiff probably should have pled violation of California Government Code Section 845.6 in the first instance, leave to file a first amended complaint is specifically requested. D. Plaintiff Respectfully Requests Leave to File a First Amended Complaint Fed.R.Civ.P. rule 15(a) expressly states that leave to amend "shall be freely given when justice so requires." Where a more carefully drafted complaint might state a claim, a plaintiff must be given another chance to amend the complaint before the district court dismisses the action with prejudice. Silva v. Bieluch (11th Cir. 2003) 351 F.3d 1045, 1048. Here, Plaintiff has yet to amend his complaint. Plaintiff has conceded that the Fifth Amendment violations, the claim against the County for negligent hiring/supervision, and the claim against individual County employees for violation of the ADA should be eliminated from the complaint. Plaintiff further acknowledges that while it is clear that he may proceed on a negligence theory against the County and its employees pursuant to Government Code Section 845.6, that this cause of action should be amended to more succinctly state the claim. Accordingly, the interests of justice require that Plaintiff be provided an opportunity to amend his complaint before any cause of action is dismissed with prejudice. III. CONCLUSION Based on the foregoing points and authorities, Plaintiff respectfully requests that the Court dispose of a hearing on this matter, and grant Plaintiff leave to file a first
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amended complaint, such that said complaint be due within 20 days of the date of the scheduled hearing date on Defendant County's motion.

Dated:

June 23, 2008

MORENO & PEREZ A Professional Corporation By: /s/Richard T. Copeland RICHARD T. COPELAND, ESQ. Attorneys for PLAINTIFF E-mail: [email protected]

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Declaration of Service I, the undersigned, declare: That I am over the age of eighteen years and not a party to the case; I am employed by Moreno & Perez, A Professional Corporation, and my business address is 714 W. Olympic Boulevard, Suite 450, Los Angeles, California 90015. On June 23, 2008, I served the following documents: PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S MOTION TO DISMISS in the following manner: X By electronic filing, I served each of the above referenced documents by E-filing, in accordance with the rules governing the electronic filing of documents in the United States District Court for the Southern District of California as to the following parties: Michael R. McGuinness, Deputy Escondido City Attorney's Office 201 N. Broadway Escondido, California 92025 (760) 839-4608 (760) 741-7541(fax) E-mail: [email protected] Attorneys for Defendants CITY OF ESCONDIDO, OFFICER WYSE, OFFICER UMSTOT, SERGEANT DISTEL

Ricky R. Sanchez, Senior Deputy County of San Diego County Counsel 1600 Pacific Highway, Room 355 11 San Diego, California 92101 (619) 531-4874 12 (619) 531-6005(fax) E-mail: [email protected]
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Attorneys for Defendant COUNTY OF SAN DIEGO

I declare under penalty of perjury that the foregoing is true and correct. Executed on June 23, 2008 at Los Angeles, California. By: /s/Richard T. Copeland E-mail: [email protected]

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