Opinion
E039445
5-1-2007
SAUNDRA FAYE MARAGNO, Individually and as Administrator, etc., et al., Plaintiffs and Appellants, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent.
Law Offices of Dale K. Galipo and Dale K. Galipo for Plaintiffs and Appellants. Dennis E. Wagner, Interim County Counsel, and Matthew J. Marnell, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED
Plaintiffs and appellants Saundra Faye Maragno and Robert Maragno (plaintiffs) appeal from the judgment of the trial court in favor of defendant and respondent County of San Bernardino (the County) after the courts order granting the Countys motion for summary judgment in this negligence action. Plaintiffs contend the trial court erred when it determined: 1) the sheriffs deputies had no duty of care to their son, the decedent, Brett Maragno; 2) the deputies did not breach any duty of care; 3) any breach was not a cause of Brett Maragnos death; and 4) the deputies and therefore the County are entitled to immunity under Health and Safety Code section 1799.106.
STATEMENT OF FACTS
This statement of facts is consistent with the trial courts rulings on the Countys objections to the plaintiffs separate statement of disputed and undisputed material facts in opposition to the motion for summary judgment. Because of the trial courts ruling on these objections, the facts in evidence differ dramatically from those as presented in the plaintiffs briefs in this appeal. The presentation of the facts is crucial to the outcome in the trial court and in this appeal.
At 2:15 a.m. on September 5, 2002, the decedent, Brett Maragno (Maragno) called 911 and told the dispatcher that he was choking, was having trouble breathing, and was going to die. Maragno noted that he was calling from Fontana Gardens, an adult board and care facility for persons with some psychological disorders, where he had lived for about four years. Maragno also stated that he had talked to the staff at Fontana Gardens and that they had told him to call for an ambulance himself. The 911 dispatchers were familiar with Fontana Gardens because they received many calls from that location. The dispatcher told Maragno that he would call Fontana Gardens to speak with the staff and "find out whats going on." The dispatcher spoke with the sole staff member on night duty at Fontana Gardens, who identified himself as "Sola," and asked if Maragno needed an ambulance. Sola stated "I think he is fine, he not choking he can breath, he can talk" and "[h]im not been taking medication." (Sic.) The dispatcher agreed that Maragno sounded fine to him, but asked Sola to check on Maragno to make sure he was all right.
The residents at Fontana Gardens were allowed to come and go at will.
Maragno called 911 again at 3:09 a.m. and told the dispatcher, "I got things clogged in my throat." The dispatcher told Maragno that she would send someone. The dispatcher called Fontana Gardens and asked Sola if he wanted someone to be sent out to check on the situation. Sola replied yes and commented that Maragno seemed delusional.
Deputy Blankenship arrived at Fontana Gardens on a disturbance of the peace call and made contact with Sola. Sola stated that Maragno had a history of false emergencies, that he was being disruptive, and that he did not believe there was a medical emergency. Sola asked that Maragno be taken into custody for a "5150" psychiatric evaluation. Deputy Blankenship then spoke with Maragno and noted that he did not appear to have any difficulty breathing. Maragno complained that people at the facility were trying to kill him, he was dying, he could not breath, and he needed an emergency tracheotomy. Deputy Blankenship did not believe Maragno was in medical distress, but called for a "no-code" (no emergency lights or siren) ambulance as a courtesy to Maragno. Deputy Blankenship told Sola that Maragno did not meet the criteria for a 5150 psychiatric hold.
Welfare and Institutions Code section 5150 provides for a person, who appears to be a threat to himself or others because of a mental disorder, to be taken into custody and held for up to 72 hours for treatment and evaluation.
Sergeant Ruff arrived shortly thereafter. Deputy Blankenship informed Sergeant Ruff of Solas comments about Maragnos delusions and history of making up false emergencies, and told him that Maragno showed no symptoms of distress. Sergeant Ruff ordered the ambulance cancelled, but told Maragno that he had a right to call for an ambulance on his own. Maragno appeared to be breathing normally when the two deputies left Fontana Gardens about 3:40 a.m.
The last 911 call came at 3:48 a.m. The caller identified himself as "Night Security" at Fontana Gardens and stated that a resident was throwing up and having trouble breathing. The dispatcher caused Deputy Blankenship, the fire department, and an ambulance to be sent to the scene. The ambulance eventually transported Maragno to the hospital, where he arrived at 4:25 a.m. and suffered cardiac arrest at 4:40 a.m. He was pronounced dead at 4:58 a.m. The cause of death was an acute infection of the epiglottis.
STATEMENT OF THE CASE
Plaintiffs filed a fourth amended complaint on August 23, 2004, naming the County and several other defendants. On April 14, 2005, the trial court granted the Countys motion for judgment on the pleadings as to three of the five causes of action against the County.
On June 10, 2005, the County filed a motion for summary judgment as to the two remaining causes of action — negligence and false imprisonment. On August 30, 2005, the trial court granted the Countys motion for summary judgment. The court ruled that plaintiffs had not established that the County owed a duty to Maragno or had a special relationship with him, and that the deputies, and therefore the County, had qualified immunity under Health and Safety Code sections 1799.106 and 1799.107. The court also ruled that plaintiffs had made no showing that the County had restrained Maragno or coerced him to remain at Fontana Gardens. The court denied plaintiffs subsequent motion for reconsideration and entered judgment in favor of the County on September 23, 2005. This appeal followed. Plaintiffs do not challenge the judgment as to the cause of action for false imprisonment.
DISCUSSION
On appeal, we review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 849, 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.)
The elements of a cause of action in negligence are a legal duty to use due care, the breach of that duty and the breach as the proximate or legal cause of the plaintiffs injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)
A. Duty
Plaintiffs argue that there was a triable issue of material fact as to whether the County had a duty to Maragno, based on the theories set forth in the fourth amended complaint. These theories include: 1) the duty of a volunteer who undertakes to come to the aid of another to use due care; 2) the duty of a public agent who assumes a protective duty toward a member of the public, thereby inducing reliance; 3) a special relationship based on Maragnos dependency on the deputies and resulting in detrimental reliance; 4) the deputies took action to place Maragno in peril and increased the risk of harm to him.
1. Volunteer
Plaintiffs assert that the deputies were under no duty to come to Maragnos aid, but once they did so they induced him to rely on them to request an ambulance. Plaintiffs rely on Williams v. State of California (1983) 34 Cal.3d 18 (Williams) for the proposition that when a public entity, "through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization. [Citations.]" (Id. at p. 24.) The court in Williams also sets forth the basic requirements for application of the "volunteer" or "good Samaritan" rule: "He is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the others reliance upon the undertaking. (Rest.2d Torts, § 323.)" (Williams, at p. 23.) Here, the evidence indicates that the deputies neither increased the risk of harm to Maragno nor induced him to rely upon them for help. This is because the deputies told Maragno that they were not going to call an ambulance, but made it clear that he could call one for himself. Thus, the deputies neither prevented an ambulance from coming nor encouraged Maragno to rely on them to procure an ambulance. We acknowledge that Sergeant Ruff cancelled the ambulance that Deputy Blankenship had called "only as a courtesy to Maragno," but this did not increase the risk of harm because, again, Maragno was free to call an ambulance for himself.
2. Public Agent Who Assumes Protective Duty
Plaintiffs also argue, citing Mann v. State of California (1977) 70 Cal.App.3d 773 (Mann), that when a public entity "`undertakes action on behalf of a member of the public, and thereby induces that individuals reliance, it is then held to the same standard of care as a private person or organization." (Id. at p. 780, fn. 6.) The court in Mann labels this "essentially an estoppel theory of liability." (Ibid.) Again, this theory fails because, as stated above, the deputies did not induce Maragno to rely upon them to call an ambulance for him — they told him he could call for one himself.
3. Special Relationship
Plaintiffs cite to Williams and Mann for their argument that the deputies entered into a special relationship with Maragno when he became dependent upon them to summon an ambulance. In Mann, the appellate court held that a highway patrol officer had entered into a special relationship with stranded motorists, for the purpose of establishing a duty of care. The officer found two cars stranded in the speed change lane of a freeway on a rainy morning. The officer investigated the situation but left when a tow truck arrived. This left the cars without the officers flashing red light behind them to warn other motorists of their presence. The officer also failed to place any protective flares or instruct the motorists about where they could safely stand. Some of the motorists were later killed by an elderly driver. The court found that the officers actions in investigating the situation and his special expertise in traffic safety created a special relationship with the motorists in that they were dependent upon him to prevent the foreseeable danger that they might be hit by a passing motorist.
Here, plaintiffs argue that Maragno was in a position of dependence upon the deputies to call an ambulance, much like the stranded motorists in Mann were dependent upon the officer to protect them from the foreseeable danger of being hit by a passing motorist. As stated above, however, Maragno was not in a position of dependence upon the deputies because he was able to call an ambulance on his own. Further, any position of dependence was between Maragno and Fontana Gardens. As the County points out, plaintiffs admitted in their brief to the trial court that Fontana Gardens had been "expected to provide first aid to residents and make arrangements for needed medical care for residents." It was the staff person at Fontana Gardens that told the deputies that "Maragno was delusional and had a history of making up false emergencies."
In Williams, the plaintiff argued that a special relationship existed between a stranded motorist and the responding highway patrol officer, such that the officer had an affirmative duty to secure information and preserve evidence for civil litigation between the motorist and third parties. Our Supreme Court held that no special relationship existed because the officer did not induce reliance because he did not tell the motorist that he would obtain information or preserve evidence. Neither did the officer prevent the plaintiff from conducting such an investigation on her own. The court based this holding on the rule that the state, through its agents, creates a special relationship when it induces the other person to rely upon it, either by promise or by conduct. (Williams, supra, 34 Cal.3d at p. 25.) Again, here the deputies did not by promise or conduct induce Maragno to rely on them to call him an ambulance. They told him both that they would not call an ambulance and that he was free to call an ambulance himself. Thus, no special relationship existed between Maragno and the deputies.
4. Affirmative Actions to Increase the Risk of Harm
Similarly to plaintiffs above arguments, they contend that the deputies had a duty toward Maragno under Williams, because they took affirmative actions that placed him in peril and increased the risk of harm to him. Specifically, plaintiffs argue that the deputies increased the risk of harm to Maragno when Sergeant Ruff cancelled the ambulance Deputy Blankenship had called for him, in that this ultimately delayed the eventual arrival of the ambulance and prevented him from getting to the hospital sooner.
We disagree. It is apparent from the record that the Fontana Gardens staff member was simply not going to arrange for an ambulance to come to Maragnos assistance, given Maragnos history and the lack of visible symptoms at the time the deputies were present. It was only after the deputies left and Maragnos symptoms worsened and became more visible that the Fontana Gardens staff person called 911. This happened about eight minutes after the deputies left, and the staff person described Maragno at that time as throwing up and having trouble breathing. The deputies actions in calling and then cancelling the ambulance did not place Maragno in any greater danger than had they not arrived or initially called the ambulance at all.
Because we conclude that the deputies had no duty to Maragno, we need not reach the issues of breach and causation. For the same reason, and as a matter of judicial economy, we also find it unnecessary to reach the immunity issues.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
We concur:
Ramirez, P.J.
Richli, J.