Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. CV-258070, William D. Palmer, Judge.
Rodriguez & Associates, Daniel Rodriguez, Joel T. Andreesen, Charles R. Chapman; Esner, Chang & Ellis, Stuart B. Esner and Holly N. Boyer, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Assistant Attorney General, Richard J. Rojo and D.L. Helfat, Deputy Attorneys General, for Defendant and Respondent.
OPINION
Gomes, J.
Plaintiff Katrina Martinez, by and through her guardian ad litem Vanessa Martinez, appeals from the judgment entered after the trial court granted summary judgment in favor of defendant California Highway Patrol (CHP). We will reverse.
FACTUAL AND PROCEDURAL HISTORIES
A fifth amended complaint (complaint) was filed in this lawsuit in July 2007. Of the three causes of action in the complaint, only one, the third cause of action for general negligence brought by Martinez, names the CHP as the defendant. With respect to the third cause of action, the complaint alleges that on April 7, 2006, Thomas Holt stole a sports utility vehicle from a carwash. While being pursued by a Bakersfield Police Department officer driving a marked patrol car, Holt entered an intersection and collided with a small car driven by Martinez’s aunt, Lisa Rosas. Rosas’ car, in which Martinez, who was 20-months old, was a passenger, then collided with a parked truck. Holt fled the scene on foot. The pursuing officer tried to follow Holt in his patrol car, but was unable to negotiate a left turn and his patrol car struck Rosas’ car.
The first cause of action for negligent operation of a motor vehicle and the second cause of action for general negligence were brought by both Martinez and Ana Robledo, the mother of decedent Lisa Rosas, naming as defendants Thomas Lee Holt, Jr., the City of Bakersfield, Bakersfield Police Department, and 34th Street Restaurant & Carwash, Inc. These claims and defendants were not part of the summary judgment motion at issue on appeal. Robledo also is not a party to this appeal.
Martinez further alleges in the third cause of action that after the collisions, a CHP officer “improperly and unsafely extracted” her from Rosas’ car without stabilizing her neck and spine, and thereafter held her “in an unsafe, reckless and grossly negligent manner, including: (a) holding her with one hand while using his other hand to operate his cellular phone, without stabilizing her neck and spine; and (b) doing so, [Martinez] is informed, believes, and therefore alleges, when it was not necessary, required, or reasonable to make the telephone call, much less in that manner.” Martinez further alleges that “the improper and unsafe manner” in which the CHP officer extracted her from the car and held her without stabilizing her neck and spine either caused her injuries or exacerbated any injuries she may have sustained in the accident.
The Summary Judgment Motion
The CHP filed a summary judgment motion with respect to the third cause of action on the ground that the CHP did not breach any duty of care owed toward Martinez as: (1) the CHP officer who extracted Martinez from the car was holding a folding knife, not a cellular phone; (2) the CHP needed to remove Martinez from the car given the serious physical difficulties she appeared to be experiencing; and (3) the CHP officer who extracted Martinez used care to support her head and neck during extraction under the difficult circumstances presented by the car’s position and Martinez’s awkward position inside the car.
In support of the motion, the CHP submitted the declaration of CHP Officer P. Vincent, who stated he was standing “very near” CHP Officer DeLeon when DeLeon extracted Martinez from the car. Vincent explained that when he and DeLeon first came into contact with Martinez, she was seated in “some sort of booster seat” on the rear passenger seat of the damaged vehicle, which was resting on the driver’s side with Martinez’s side of the vehicle up in the air. They found Martinez “hanging by her neck from the shoulder belt of the car”; she appeared to be in physical distress as she looked cyanotic, she was unresponsive to their verbal stimulus, her limbs were twitching and she was bringing up blood from her mouth. Given Martinez’s condition and position, “it appeared necessary to quickly extract her from the car.” Martinez, however, was in an awkward position for extraction. It appeared to Vincent that DeLeon tried to remove Martinez from the car as gently as possible under the circumstances and tried to support her head and neck during the removal.
Vincent stated that once free from the car, DeLeon “needed to hold onto Katrina for a time because ambulance personnel did not immediately have the right size equipment to fit” her. Thereafter, ambulance personnel directed DeLeon to carry Martinez to their location. While Vincent observed DeLeon the entire time he was holding Martinez, he never observed DeLeon holding a cellular telephone and instead saw him holding a folding knife that he had used to free Martinez from the car.
Martinez’s Opposition
In her opposition to the motion, Martinez argued there were triable issues of material fact regarding whether (1) DeLeon’s decision to extract Martinez from the vehicle before the arrival of paramedics, EMTs and the necessary spinal support devices was negligent and whether he negligently extracted Martinez from the vehicle without stabilizing her neck and spine, and (2) after extracting her, DeLeon held or carried her in an unsafe, reckless and grossly negligent manner.
This was the second opposition Martinez filed. In her first opposition, Martinez requested a continuance of the hearing to allow her to complete pending discovery. The trial court continued the hearing by the parties’ stipulation and set a new date for Martinez to file a renewed opposition.
Martinez submitted the declaration of Gary Ludwig, the deputy fire chief of the Memphis, Tennessee, fire department, who had personally trained Emergency Medical Responders (EMRs), including law enforcement personnel, pursuant to the National Highway Traffic Safety Administration National EMS Scope of Practice Model (NHTSA Model), and had previously testified as an expert regarding emergency medical response and the standard of care applicable to paramedics, EMTs and EMRs. Ludwig reviewed evidence in the case and opined for two reasons that DeLeon’s care and treatment of Martinez fell below, and failed to satisfy, the standard of care applicable to EMRs and law enforcement personnel, and was negligent and unreasonable.
First, Ludwig opined that photographs of DeLeon holding Martinez after he extracted her from the vehicle show that he “(a) negligently failed to place her on a nearby safe and flat surface as soon as possible in order to immobilize and stabilize her neck and spine; but instead (b) negligently and unnecessarily walked around and carried her without adequately supporting her neck and spine.” Ludwig explained that due to the danger of exacerbating or further traumatizing a spinal injury after an automobile accident, the applicable standard of care would require an EMR or law enforcement officer to place Martinez on a nearby safe and flat surface, including the ground, as soon as possible to immobilize and stabilize her neck and spine, and not to walk around and carry her without adequately supporting her neck and spine. Ludwig opined that these standards of care would have been known by, and were applicable to, any EMR or law enforcement officer, as the NHTSA Model shows that “even the most minimally trained... (EMR) is taught and required to perform and ensure ‘Manual cervical stabilization [and] Manual extremity stabilization’ following an accident.”
According to Ludwig, the photographs showed that DeLeon could, and reasonably should, have placed Martinez on her back on either (1) the ground, (2) the back seat of one of the patrol vehicles, or (3) the hood or trunk of one of the patrol vehicles, and thereafter monitored and controlled her movements in order to immobilize and stabilize her neck and spine, and his failure to do any of these things fell below the applicable standard of care and was “negligent and unreasonable.” The photographs also showed the way DeLeon was holding and carrying Martinez was “particularly negligent and dangerous because he is: (a) not supporting her neck, allowing her head to drop; and (b) no[t] only allowing her spine to curve, but actually causing it to curve because [of] the way in which he is holding her.” Ludwig opined that the way DeLeon was holding and carrying Martinez fell below the applicable standard of care and was “negligent and unreasonable.”
Second, Ludwig opined that given the photographs and deposition transcripts of Felipe Hernandez, Alex Jones, Rodney Van Bebber, Vincent, and DeLeon, removing Martinez from the vehicle “was unnecessary, negligent, and unreasonable” and fell below the standard of care applicable to EMRs and law enforcement personnel. Ludwig explained that unless it was necessary to do so, a victim who has suffered, or possibly suffered, a neck or spinal injury, such as Martinez, should not be moved or extracted from a vehicle until a backboard, KED sled, or C-collar is available to stabilize the victim’s neck and spine. After his review of the photographs and transcripts, Ludwig concluded there was no compelling or superseding reason for DeLeon to extract Martinez from the vehicle before a backboard, KED sled or C-collar was available, and “if the belt of a shoulder harness was across her neck, the reasonable solution consistent with the standard of care and the need to not further aggravate her spinal injuries would be to simply pull the belt out and hold it, or cut it, thus relieving any pressure.”
Martinez also submitted excerpts of deposition transcripts. Jeff Farris, a paramedic with the ambulance that was dispatched to the accident scene, testified at his deposition that when he arrived at the scene he approached an officer who was carrying a child against his chest with his right arm across her mid-back. The child’s head was “flopped back and to her left” in a hyper-extended state. Farris believed the officer was on his cellular phone with his left hand, but he was not sure of that, and recalled that he held the cellular phone to his ear. He did not recall the officer holding a folding knife and would have recognized the difference between a folding knife and a cellular phone.
When shown a photograph of the officer holding the child, Farris said he was concerned with the way the officer was holding the child because her “spine was being compromised.” Farris explained that anyone “involved with a high probability of spinal injury, it’s assumed that the spinal injury exists and, hence, the training and the steps that are taken to protect that spine from further injury. The manner in which this child is being held in this picture is not consistent with proper spinal immobilization techniques and could feasibly cause the child more harm.” Farris also was concerned with the way the officer was holding the child in another photograph because her spinal column was unprotected, meaning it was not in line, as it appeared her head was “askew to her left” while her torso was flexed slightly to her right.
Farris’s partner, paramedic Felipe Hernandez, testified that when they arrived at the accident scene, he saw a CHP officer holding a young child, cradling her with one arm. Later, when Hernandez was trying to get the child on the KED sled, he had the officer place the child on the sled so there would not be more movement than necessary; Hernandez did not want to touch the child because the officer was cradling her and he did not want to be responsible for any spinal injuries. Hernandez explained that if he “was an ordinary person, I would naturally run over to the scene, see a baby, grab the baby, pull the baby out of the car, and whatever happens after that. But knowing what I know, I know to leave the baby there until you have proper spinal immobilization.”
Hernandez was concerned about the way the officer was holding the child in the photographs he was shown because he “knew better,” the child might have an injury from being in a wrecked car, and the child’s spine wasn’t straight and immobilized, and her shoulder was “way off,” causing her spine to kink. The trainee who was riding with Hernandez and Farris, Alex Jones, also was concerned about the way the officer was holding the child. Hernandez explained that to assess back injuries, when you lay the patient on the board you want the patient to be as straight as possible and check their sensations before and after doing that. Hernandez admitted it was not always possible to keep an injured victim with a back injury straight, but they use the most cautious way to keep them in line. Hernandez did not see the officer holding the child in one hand and something else in his other hand, but he did not observe the officer the entire time he was on the scene.
DeLeon testified in his deposition that he had received medical training and recertification as an EMR at the CHP. Rodney Van Bebber, the person the CHP designated as most knowledgeable about medical training of CHP officers, testified that part of the EMR training in 2006 included teaching patient assessment related to C-spine precautions, such as assuming a neck injury and immobilizing the head.
Vincent testified in his deposition that he did not give any thought to whether Martinez might have had a spinal injury when he saw her in the car, he just thought she needed to get out because she was slumped forward and “looked kind of entangled up in the seat belt,” which crossed her neck. It looked like Martinez’s head was down below her torso and she was “somewhat suspended.” Martinez also filed objections to Vincent’s declaration.
The CHP’s Reply
In its reply brief, the CHP argued that under Health and Safety Code section 1799.106, Martinez was required to present evidence of gross negligence, but she failed to do so. Specifically, the CHP asserted Martinez failed to show (1) how DeLeon was grossly negligent in extracting her from the car, as there was an “overriding threat to Katrina’s life due to a seemingly compromised airway,” and (2) that DeLeon had placement options open to him from the time he extracted Martinez to when he first saw the EMTs arrive. The CHP also filed written objections to Ludwig’s declaration.
Later statutory references are to the Health and Safety Code unless otherwise noted.
The Hearing on the Motion
At oral argument, the trial court initially stated that its tentative ruling was to deny the motion because there was a triable issue of fact as to whether DeLeon should have taken different steps in extracting Martinez. The court, however, had not seen the CHP’s reply. The CHP’s counsel explained the reply stated that Martinez was required to show gross negligence under section 1799.106, but Ludwig never stated extracting Martinez was gross negligence even though the complaint pled the gross negligence standard. Martinez’s counsel responded there were many triable issues of fact and asserted it was puzzling that the CHP had not offered evidence from DeLeon. The CHP’s counsel explained he obtained Vincent’s declaration because DeLeon was not available when counsel filed the motion. Martinez’s counsel further argued that Vincent’s declaration was directly contradicted by a CHP form DeLeon filled out at the time of the crash, which did not state that Martinez had blood in her mouth or that she was unresponsive, and stated under “assessments” that her airway, breathing, circulation, spine, chest, abdomen, head, face, back, pelvis, extremities were all within normal limits. Martinez’s counsel also asserted that Ludwig did address gross negligence, as he set forth an EMT’s standard of care and conduct, which DeLeon’s conduct departed from “grossly.” At the conclusion of argument, the trial court took the matter under submission.
The Minute Order
The trial court subsequently issued a minute order granting the motion, which directed the CHP’s counsel to prepare the appropriate order consistent with its ruling. The minute order stated that “Health and Safety Code § 1799.107 controls the liability of the Highway Patrol,” and although there may be triable issues of fact if the standard was simple negligence, applying the gross negligence standard as defined in Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 (Eastburn), it was clear there were no facts which would support a finding of gross negligence. The order further stated that given the ruling, the CHP’s objections to Martinez’s evidence were moot and it had considered Ludwig’s declaration, along with the other evidence, in reaching its conclusion.
The Written Order
The trial court ultimately signed a written order granting the motion. The order stated that the court had found that even if the CHP’s extraction of Martinez from the car amounted to negligence, Martinez had failed to demonstrate that the decision to extract her or the method with which that was accomplished amounted to gross negligence. The order explained that “[p]ursuant to Health and Safety Code Section 1799.106, [Martinez] is required to meet the gross negligence burden of proof” as defined in Eastburn, supra, and while Martinez pled the gross negligence standard in the complaint, which standard was cited in her opposition to the motion and was not objected to at the hearing on the motion, Martinez offered no facts to show that the CHP’s conduct amounted to gross negligence. The trial court based the decision on the following evidence: (1) it was undisputed that Martinez was involved in a very serious automobile accident and the car she was in was very badly damaged, and the CHP submitted facts showing the decision to extract Martinez from the car and the way she was extracted were not a breach of duty under the gross negligence standard; and (2) Ludwig did not offer opinion or facts in his declaration to show the CHP was grossly negligent as defined in Eastburn. Judgment was entered in the CHP’s favor.
DISCUSSION
Martinez contends reversal is warranted on several grounds, both procedural and substantive. Specifically, she asserts the trial court erred in granting summary judgment because: (1) the trial court’s decision was based on a statute that the parties never mentioned or briefed, namely section 1799.107; (2) the CHP did not state in its moving papers that the motion was based on Martinez’s inability to prove gross negligence or on any immunity statute; (3) the CHP failed to satisfy its burden of showing there was no triable issue of material fact; and (4) even if it satisfied its burden, Martinez’s evidence created a triable issue of material fact.
Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) All doubts as to the propriety of granting the motion are resolved in favor of the opposing party. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.)
The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Along these lines, we note “‘the declarations and evidence offered in opposition to the motion must be liberally construed, while the moving party's evidence must be construed strictly, in determining a “triable issue” of fact.’” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) The trial court “does not decide on any finding of its own, but simply decides what finding such a trier of fact could make for itself.” (Id. at p. 856.)
As a threshold matter, we address Martinez’s assertion that the trial court applied a statute that neither party cited. As Martinez points out, the CHP brought the motion on the ground that DeLeon did not breach any duty owed to Martinez and the moving papers did not mention the gross negligence standard or section 1799.106, which provides that law enforcement officers rendering “emergency medical services at the scene of an emergency” are civilly liable only for “acts or omissions performed in a grossly negligent manner or... not performed in good faith.” It was not until the reply brief that the CHP contended the gross negligence standard of section 1799.106 applied. Although the trial court stated in the minute order that it found section “1799.107” applied, the minute order also directed that a formal order be prepared; the formal order stated that section 1799.106 applied. While Martinez contends the trial court erred in finding section 1799.107 applied because neither party had cited that statute before its mention in the minute order, it is the formal order, not the minute order, which controls. (See Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 658-659; McHale v. State of California (1981) 125 Cal.App.3d 396, 399; Kroff v. Kroff (1954) 127 Cal.App.2d 404, 405.) Accordingly, it is section 1799.106, not 1799.107, that is at issue here.
Section 1799.106 provides, in pertinent part, that “...in order to encourage the provision of emergency medical services by firefighters, police officers or other law enforcement officers,... a firefighter, police officer or other law enforcement officer... who renders emergency medical services at the scene of an emergency shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith. A public agency employing such a firefighter, police officer or other law enforcement officer... shall not be liable for civil damages if the firefighter, police officer or other law enforcement officer... is not liable.”
Section 1799.107 establishes a qualified immunity from liability for public entities and emergency rescue personnel providing emergency services. (§ 1799.107, subd. (a).) Section 1799.107, subdivision (b) provides that, with certain exceptions, “neither a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”
Martinez next contends that section 1799.106 does not apply here and even if it does, the motion was not brought on that ground. The CHP responds the complaint pled the gross negligence standard, therefore its motion naturally addressed that standard even if it did not mention it explicitly, and Martinez waived the issue of whether the gross negligence standard applied because she never objected to application of that standard in the trial court. We need not decide whether section 1709.106 applies or whether it is otherwise appropriate to apply a gross negligence standard because even if we were to conclude that the gross negligence standard applies, either through application of section 1709.106 or otherwise, there is, at a minimum, a triable issue of material fact regarding whether DeLeon’s conduct in carrying Martinez after extracting her from vehicle constituted gross negligence.
Our Supreme Court has explained the difference between ordinary and gross negligence: “‘Ordinary negligence’ - an unintentional tort - consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. [Citation.] [¶] ‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 757, 753-754; Eastburn, supra, 31 Cal.4th at pp. 1185-1186.) Gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude towards results.” (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729, disapproved on other grounds in Aguilar, supra, 25 Cal.4th at p. 853, fn. 19.) “Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citations], but not always.” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358, citing Pacific Bell v. Colich (1988) 198 Cal.App.3d 1225, 1240 & DeVito v. State of California (1988) 202 Cal.App.3d 264, 272.)
Martinez asserts that the CHP did not submit sufficient evidence to sustain its burden as the moving defendant, i.e. to show that she could not prove a breach of duty as a matter of law. With respect to DeLeon’s handling of Martinez after he extracted her from the vehicle, the complaint specifically alleged that he held her in “an unsafe, reckless and grossly negligent manner” and that he held her without stabilizing her neck and spine. The only evidence the CHP submitted on this issue was Vincent’s statements that DeLeon needed to hold onto Martinez “for a time because ambulance personnel did not immediately have the right size equipment to fit” her, ambulance personnel directed him to carry Martinez to them, and he did not see DeLeon holding a cellular telephone while holding Martinez. No evidence, however, was provided regarding whether DeLeon satisfied the standard of care required for accident victims who have been removed from a vehicle or whether he tried to stabilize Martinez’s neck and spine while holding her. While Vincent’s statement might be enough to show that DeLeon had a good reason for holding Martinez after extracting her, it does not show that he in any way attempted to stabilize her neck and spine. Accordingly, it appears that the CHP failed to satisfy its burden of proof, at least with respect to Martinez’s claim that DeLeon negligently held her after extracting her from the car.
Even if we conclude the CHP met its initial burden, however, Martinez submitted sufficient evidence to create a triable issue of material fact. Ludwig explained in his declaration that due to the danger of exacerbating or further traumatizing a spinal injury after an automobile accident, the applicable standard of care requires a law enforcement officer to place the victim on a nearby safe and flat surface as soon as possible to immobilize and stabilize the neck and spine. Ludwig further explained it was a departure from the standard of care to walk around carrying Martinez without adequately supporting her neck and spine. Ludwig stated these standards would have been known by any law enforcement officer. Moreover, there was evidence that DeLeon had received medical training and recertification as an EMR at the CHP, and that his training would have included teaching patient assessment related to C-spine precautions. Martinez’s evidence supports the conclusion that DeLeon had a duty, once he extracted Martinez from the vehicle, to attempt to immobilize her spine by placing her on a flat surface as soon as possible or at least to adequately support her neck and spine while carrying her, and it was reasonably foreseeable that a failure to do so could result in exacerbating any spinal injury Martinez may have suffered in the accident.
The CHP states in its brief that it lodged objections to Ludwig’s declaration, which the trial court found moot, and states that it “renews those objections on appeal.” To the extent the CHP is asking this court to rule on the objections, it has not set forth in its brief the specific objections, any reasoned argument or authority on our ability to so rule, or any argument or authority on the merits of each objection. Accordingly, the CHP has waived this point for purposes of appeal by its conclusory presentation. An appellate court may treat as waived an issue that, although raised in the brief, is not supported by pertinent or cognizable legal argument or proper citation to authority. (McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1016, fn. 4; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [issue abandoned where supported only by assertion of general legal principles without argument or application to facts on appeal].) In addition, the CHP has waived the issue for purposes of appeal by its abbreviated treatment. (See Cal. Rules of Court, rule 8.204(a) [each argument must be stated under separate headings in the briefs]; In re Keisha T. (1995) 38 Cal.App.4th 220, 237, fn. 7 [“We interpret this casual treatment as reflecting [CHP’s] lack of reliance on this argument”].)
In contrast to the CHP’s evidence that DeLeon held Martinez because ambulance personnel did not have the right size equipment and they directed him to carry Martinez to them, the paramedics testified they were concerned with the way DeLeon was holding Martinez because her spine was being compromised and she was not being held using proper spinal immobilization techniques. One paramedic, Hernandez, even testified that he did not want to touch Martinez because he did not want to be responsible for any spinal injuries, so he had DeLeon place Martinez on the KED sled. Ludwig opined DeLeon’s holding and carrying of Martinez was negligent and unreasonable. Although Ludwig did not use the words “gross negligence” in describing DeLeon’s conduct, Ludwig did specifically state that the way DeLeon held and carried Martinez was “particularly negligent and dangerous” because he was not supporting her neck and he actually caused her spine to curve. In addition, Ludwig opined that instead of carrying Martinez, DeLeon should have placed Martinez on her back on the ground, the back seat of a patrol vehicle, or the hood or trunk of a patrol vehicle, and then monitored and controlled her movements to immobilize and stabilize her spine, and his failure to do so fell below the applicable standard of care.
Martinez thus offered evidence that DeLeon should have placed her on something flat after removing her from the car and should have held her in such a way as to stabilize her neck and spine, neither of which he did. This evidence, if believed, takes DeLeon’s conduct, at least after he extracted Martinez from the vehicle, outside the limits of ordinary negligence and could lead a trier of fact reasonably to conclude that DeLeon was grossly negligent, i.e. he failed to provide Martinez with even a scant amount of care and his conduct was an extreme departure from the standard of care for a law enforcement officer in such a situation. While the CHP characterizes DeLeon’s actions as necessary to save Martinez’s life, a trier of fact could find that DeLeon did not even attempt to immobilize or stabilize Martinez’s neck and spine, and from there conclude he was grossly negligent when he failed to provide even a scant amount of care with respect to neck and spine immobilization or stabilization. In sum, reasonable persons might disagree as to whether DeLeon’s conduct constituted gross negligence.
Because the CHP did not move in the alternative for summary adjudication of specified issues and there is at least one triable issue of fact regarding Martinez’s negligence claim against the CHP, we will not address whether the CHP may have prevailed on other issues in the case. (See Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 949.)
DISPOSITION
The judgment is reversed. Appellant shall recover her costs on appeal.
WE CONCUR: Vartabedian, Acting P.J., Poochigian, J.