Garot v. County of San Diego

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 THOMAS RAINEY and JUDY Case No.: 19-cv-1650-L-BLM RAINEY, Co-Conservators, on 11 behalf of COLLEEN GAROT, ORDER: 12 Plaintiff, (1) DENYING MOTION FOR SUMMARY 13 v. ADJUDICATION (ECF No. 165) 14 (2) DENYING MOTION FOR SUMMARY COUNTY OF SAN DIEGO, ADJUDICATION OF CROSSCLAIM (ECF 15 WILLIAM D. GORE, STEVEN No. 168) BLOCK, ARTHUR DOHERTY, 16 (3) DENYING MOTION FOR SUMMARY QUOC TRAN, M.D., MICHAEL ADJUDICATION (ECF No. 171) 17 STEWART, PH.D., FRIEDRIKE (4) DENYING MOTION FOR SUMMARY VON LINTIG, M.D., ANGELITO 18 ADJUDICATION OF CROSSCLAIM (ECF DELA CRUZ, YAOWALUCK No. 172) 19 HAGG, SUSAN ANGUITAY, (5) GRANTING MOTION FOR LEAH GACHE, SUSAN CONRAD, 20 SUMMARY ADJUDICATION OF MYRA RADA-GRAGASIN, CROSSCLAIM (ECF No. 175) 21 CHRISTINE ESER, M. GERMONO,

MELISSA GRANT, MABEL 22 DOMINGO, MA ESTAVILLO, [ECF Nos. 165, 168, 171, 172, 175] 23 EDNA GOMEZ-SANCHEZ, HELEN SALTER, COASTAL 24 HOSPITALIST MEDICAL 25 ASSOCIATES, INC., LIBERTY HEALTHCARE OF CALIFORNIA, 26 INC., 27 Defendants. 28 1 I. INTRODUCTION 2 The present case arises out of injuries suffered by Plaintiff Colleen Garot while in 3 the custody of the County of San Diego over a period of four days. Over those four days, 4 Ms. Garot was medically evaluated in some form by Defendant Nurse Practitioner 5 Angelito Dela Cruz (“NP Dela Cruz”), Defendant Quoc Tran, M.D. (“Dr. Tran”), 6 Defendant psychologist Michael Stewart, Ph.D. (“Dr. Stewart”), and Defendant Friedrike 7 Von Lintig, M.D. (“Dr. Von Lintig”). (See generally Pl.’s Fourth Am. Compl., ECF No. 8 53.) NP Dela Cruz and Dr. Von Lintig were employees of Defendant Coast Correctional 9 Medical Group (“CCMG”)1 and Dr. Stewart was an employee of Defendant Liberty 10 Healthcare of California, Inc. (“Liberty”) during the relevant time period. (ECF Nos. 68, 11 73.) Dr. Tran was an independent contractor. (ECF No. 73.) The term “Defendants” 12 only refers to the moving Defendants, CCMG, Liberty, NP Dela Cruz, Dr. Stewart, and 13 Dr. Von Lintig, for purposes of this Order.2 14 Ms. Garot, by and through her parents as guardians ad litem, brings claims against 15 Defendants under 42 U.S.C. § 1983 for deliberate indifference to a substantial risk of 16 harm to health in violation of the Eighth and Fourteenth Amendments and section 845.6 17 of the California Government Code, and professional negligence under California law. 18 (See generally ECF No. 53.) The CCMG Defendants filed a combined motion for 19 summary adjudication of these claims as did Liberty with Dr. Stewart. (ECF Nos. 165, 20 21 22

23 1 The operative complaint names Coastal Hospitalist Medical Associates, Inc. (“CHMA”) as a 24 Defendant that rendered healthcare services to Ms. Garot. (ECF No. 53, at 6.) The Court later granted 25 Ms. Garot’s request to amend the operative complaint to substitute CCMG in place of CHMA. (ECF Nos. 122, 123.) The County’s cross-complaint still names CHMA as a Cross-Defendant. (ECF No. 64.) 26 The relationship between CCMG and CHMA is disputed and further discussed below. See supra Section V.C. Regardless, NP Dela Cruz, Dr. Von Lintig, and CCMG are referred to collectively as 27 “CCMG Defendants.” 2 Dr. Tran initially filed a motion for summary adjudication of Ms. Garot’s claims but subsequently 28 1 171.). Ms. Garot filed an omnibus opposition. (ECF No. 191.) The CCMG Defendants 2 filed a reply, (ECF No. 217), and Dr. Stewart and Liberty filed a reply, (ECF No. 198). 3 Defendant County of San Diego (“County”) filed a cross-complaint against 4 CHMA, the CCMG Defendants, Liberty, Dr. Stewart, and Dr. Tran seeking: (1) 5 contractual indemnity as to Liberty, (2) equitable indemnity as to all Cross-Defendants, 6 and (3) declaratory relief pursuant to 28 U.S.C. § 2201 as to all Cross-Defendants. (ECF 7 No. 64.) The County filed a motion for summary adjudication on the issue of contractual 8 indemnity only, (ECF No. 175), which was opposed by Liberty, (ECF No. 190), and the 9 County replied, (ECF No. 209). 10 The CCMG Defendants, and Liberty and Dr. Stewart (collectively, “Cross- 11 Defendants”) filed motions for summary adjudication on the second and third claims for 12 equitable indemnification and declaratory relief. (ECF Nos. 168, 172). The County filed 13 oppositions, (ECF Nos. 188, 189), and the Cross-Defendants filed replies, (ECF Nos. 14 199, 213).4 15 In sum, the Court must resolve motions for summary adjudication on Ms. Garot’s 16 claims as to three medical providers, and three motions for summary adjudication on the 17 County’s crossclaims. The Court has federal question jurisdiction over the federal 18 constitutional claims and supplemental jurisdiction over the state law claims. 28 U.S.C. 19 §§ 1331, 1367(a). The Court decides the matters on the papers submitted and without 20 oral argument. See Civ. L. R. 7.1(d.1). For the reasons stated below, the County’s 21 motion for summary adjudication against Liberty on the issue of contractual indemnity is 22 GRANTED, and all other motions for summary adjudication are DENIED. 23 24 25 3 Dr. Stewart and Liberty also move for summary adjudication of Ms. Garot’s claim for failure to 26 summon medical care under section 845.6 of the California Government Code. (ECF No. 171, at 23– 24.) This claim was not brought against Dr. Stewart or Liberty, (ECF No. 53, at 19), and thus Dr. 27 Stewart and Liberty’s motion for summary adjudication of this claim is denied. 4 Dr. Tran also filed a motion for summary adjudication of the equitable indemnification and declaratory 28 1 II. FACTUAL BACKGROUND 2 A. The Arrest of Colleen Garot, April 13, 2018 3 On April 13, 2018, San Diego Sheriff’s Deputies Steven Block and Arthur Doherty 4 were dispatched to Plaintiff Colleen Garot’s residence to serve an eviction. (ECF No. 5 170, at 16.)5 The deputies discovered that Ms. Garot had an outstanding misdemeanor 6 arrest warrant. (Id.) Body-worn camera captured the deputies’ interactions with Ms. 7 Garot. (See Pl.’s Video Ex. 1.) 8 In the footage from the body-worn camera, Ms. Garot appears with a large black 9 “raccoon eye” over her left eye, abrasions on her forehead, and bruises on her arms. (See 10 Pl.’s Video Ex. 1.) Ms. Garot’s speech in the video is slow and she stutters when she 11 explains to the Deputies that she is sick and in “neurological hell.” (See generally Pl.’s 12 Video Ex. 1; ECF No. 191-3, at 227.) As the deputies and Ms. Garot were leaving the 13 residence, one of the deputies stated that Ms. Garot appeared shaky and declined to place 14 Ms. Garot in cuffs so she could hold on to things as she walked. (ECF No. 191-3, at 15 246.) Ms. Garot was then transported to the Vista Detention Facility (“VDF”). (ECF No. 16 170, at 16.) 17 B. Booking and Intake Screening, April 13, 2018 18 Upon arriving at VDF, Nurse Yaowaluck Hagg evaluated Ms. Garot during 19 medical intake at 11:22 a.m. (ECF No. 165-2, at 31–48.) Ms. Garot informed Nurse 20 Hagg that she suffered from Hashimoto’s disease, which she claimed was a neurological 21 disorder. (Id. at 31.) Ms. Garot also informed Nurse Hagg that she suffered from 22 depression and was currently taking the psychiatric medications Lexapro and Seroquel. 23 (Id. at 31, 46.) Nurse Hagg noted that Ms. Garot had consumed alcohol that morning and 24 had mild alcohol breath, and also that Ms. Garot’s speech was slurred from the alcohol 25 consumption. (Id. at 37, 40, 41.) 26

27 5 Unless otherwise noted, all citations to the ECF document number refer to the electronic filing page 28 1 Nurse Hagg referred Ms. Garot for further evaluation due to her thyroid condition 2 (Hashimoto’s disease) and the bruise and abrasions on her face. (ECF No. 191-2, at 8.) 3 In her note referring Ms. Garot to a nurse practitioner, Nurse Hagg wrote that Ms. Garot 4 had a bruise on her left eye but that Ms. Garot denied a left-eye injury, saying that it was 5 from her neurological disorder. (ECF No. 165-2, at 50.) Nurse Hagg also stated that Ms. 6 Garot claimed the abrasion and redness on her forehead was from a fall five days before. 7 (Id.) Additionally, Ms. Garot denied loss of consciousness, nausea, and vomiting but 8 reported occasional dizziness. (Id.) 9 C. Examination by Nurse Practitioner Dela Cruz, April 13, 2018 10 Later the same day, at 10:22 p.m., NP Dela Cruz performed a sick call evaluation 11 of Ms. Garot for the purpose of assessing Ms. Garot’s stability due to the injury to her 12 eye. (Dela Cruz Dep., at 32.)6 NP Dela Cruz reviewed Nurse Hagg’s note prior to the 13 examination. (Id. at 27–28.) In Ms. Garot’s medical chart, NP Dela Cruz noted 14 “ecchymosis to forehead and left periorbital,” or bruising to the forehead and area around 15 the left eye which Ms. Garot stated was from her husband. (ECF No. 165-2, at 51; Dela 16 Cruz Dep., at 48.) NP Dela Cruz stated that type of bruising could be due to blunt force 17 trauma or a bleeding disorder and that it was likely the result of blood pooling in that 18 area. (Dela Cruz Dep., at 48–49, 75.) NP Dela Cruz testified that such bruising can also 19 be a sign of a basilar skull fracture, but that he did not believe Ms. Garot had a basilar 20 fracture when he examined her based on his examination and history. (Id. at 49, 77.) 21 Additionally, NP Dela Cruz noted that Ms. Garot reported a history of vertigo 22 (dizziness) for which she was taking Seroquel, followed by a question mark. (ECF No. 23 165-2, at 51.) NP Dela Cruz found Ms. Garot’s statement questionable because Seroquel 24 is not typically prescribed for vertigo but generally for psychiatric conditions. (Dela Cruz 25 26

27 6 See ECF No. 165-2, at 53–77; ECF No. 191- 2, at 14–42. Throughout this Order the Court’s citation to 28 1 Dep., at 41.) NP Dela Cruz wrote that Ms. Garot did not report any pain or visual 2 changes and did not have any other complaints. (ECF No. 165-2, at 51.) 3 As part of the examination, NP Dela Cruz conducted a review of systems which 4 typically includes examining the body, heart, lungs, neurological (“neuro”) system, and 5 abdomen. (ECF No. 165-2, at 51; Dela Cruz Dep., at 45.) The neuro exam entails asking 6 the patient whether they have numbness or tingling and inquiring as to whether they are 7 oriented as to the date and time. (Dela Cruz Dep., at 70, 71.) NP Dela Cruz did not 8 document whether Ms. Garot was experiencing numbness or was oriented as to the date 9 and time, but he did document that Ms. Garot’s pupils were equally reactive, round, and 10 reactive to light. (ECF No. 165-2, at 51; Dela Cruz Dep., at 46–47, 51–52.) Based on his 11 observations NP Dela Cruz opined that Ms. Garot’s neurological state was grossly intact: 12 Ms. Garot was responding and moving her extremities appropriately, and her face 13 movement and eyes were symmetrical. (ECF No. 165-2, at 51; Dela Cruz Dep., at 59). 14 Ms. Garot’s medical chart also indicated that she could move her extremities and 15 was ambulating well, but NP Dela Cruz could not recall how he came to those 16 conclusions. (ECF No. 165-2, at 51; Dela Cruz Dep., at 55–56, 59–60.) NP Dela Cruz 17 ordered Ms. Garot undergo blood pressure checks per the nursing standard protocol 18 because her vital signs revealed elevated blood pressure as well as a slightly elevated 19 pulse. (ECF No. 165-2, at 51; Dela Cruz Dep., at 35–36.) NP Dela Cruz ultimately 20 concluded that Ms. Garot was medically stable. (Dela Cruz Dep., at 86.) 21 D. Ms. Garot’s Fall and Examination by Dr. Tran, April 13–14, 2018 22 According to a San Diego County Sheriff’s Department Officer Report, Ms. Garot 23 was observed lying on the floor of her cell at approximately 7:00 a.m. the next morning, 24 April 14, 2018. (ECF No. 191-2, at 95.)7 The deputy asked Ms. Garot what happened, 25 and Ms. Garot replied that she fell off of her bunk and hit her head. (Id.) The deputy 26 27 28 1 testified that Ms. Garot fell from the top bunk. (Id. at 109.) The deputy checked Ms. 2 Garot’s head and felt a lump then helped her sit up. (Id. at 95.) Ms. Garot was “very 3 shaky” but was able to get up and sit on the stool in her cell. (Id.) The deputy left to 4 finish her security check then returned to escort Ms. Garot to medical. (Id.) 5 When the deputy returned, she asked Ms. Garot if she needed a wheelchair or if 6 she could walk, and Ms. Garot replied that she could walk with assistance. (Id.) The 7 deputy again observed that Ms. Garot was shaky and escorted Ms. Garot to medical while 8 holding on to her arm and the back of her shirt. (Id.; see also Pl.’s Video Ex. 3.) 9 Once at medical, Ms. Garot was evaluated by Nurse Susan Anguitay. (ECF No. 10 191-1, at 217.)8 Ms. Garot informed Nurse Anguitay that she lost consciousness when 11 she fell. (Id.) Nurse Anguitay noted Ms. Garot’s bruised eye and the abrasion on her 12 forehead and documented that Ms. Garot’s gait was ataxic meaning uncoordinated or 13 unsteady. (Id.) Ms. Garot was given an ice pack and placed on the sick call list to be 14 seen by an MD that day. (Id.) 15 A few hours after her evaluation by Nurse Anguitay, Ms. Garot was examined by 16 Dr. Tran at 11:23 a.m. on April 14, 2018. (ECF No. 191-1, at 219.)9 Dr. Tran testified 17 that it was his custom and practice to review all prior medical charts for an inmate-patient 18 before an examination, so he would have reviewed the notes from Nurse Hagg and NP 19 Dela Cruz before examining Ms. Garot. (Tran. Dep., at 24, 33–34.)10 Dr. Tran observed 20 that Ms. Garot presented an unsteady gait that Dr. Tran theorized was due to drug or 21 alcohol withdrawal. (ECF No. 191-1, at 219.) Dr. Tran also noted the bruises on Ms. 22 Garot’s face and the swelling around her eye. (Id.) 23 Dr. Tran testified that although he performed a review of Ms. Garot’s systems, he 24 only charted some of Ms. Garot’s answers to his questions. (Tran Dep., at 47–49.) 25 26 27 8 See also ECF No. 165-3, at 8. 9 See also ECF No. 176-3, at 69. 28 1 Particularly, Dr. Tran stated that he did not note all of Ms. Garot’s negative responses but 2 only recorded symptoms that he believed were pertinent. (Id. at 48–49.) Based on his 3 examination, Dr. Tran concluded that Ms. Garot was medically stable but stated 4 “continue to monitor” in her medical chart and included instructions for Ms. Garot to be 5 assigned a bottom bunk. (ECF No. 191-1, at 219.) Dr. Tran also noted that if Ms. Garot 6 was unsafe for housing she might have to be transferred to Las Colinas Detention Facility 7 (“LCDF”) or a medical isolation cell. (Id.) 8 E. Examination by Dr. Stewart, Ph.D., April 15, 2018 9 According to an incident report Ms. Garot was observed the next morning, April 10 15, 2018, making nonsensical statements and acting erratically. (ECF No. 191-2, at 139.) 11 Ms. Garot was hitting and kicking her cell door before calling the deputy station on the 12 intercom and saying that she “felt like hurting herself.” (Id.) Ms. Garot was then taken 13 to medical where it was determined that she should be placed in a safety cell until she 14 was seen and cleared by psych. (Id.; see also ECF No. 191-1, at 225.) 15 Later that day at approximately 3:10 p.m., psychologist Dr. Stewart evaluated Ms. 16 Garot in the safety cell. (ECF No. 191-2, at 179; ECF No. 191-1, at 227–29.)11 Dr. 17 Stewart testified that in accordance with the customary process, Ms. Garot was inside the 18 safety cell at the time of her evaluation while Dr. Stewart remained on the outside. 19 (Stewart Dep., at 30–31.)12 Prior to Dr. Stewart arriving, a deputy would have asked Ms. 20 Garot to approach the door of the cell and sit against the wall that is just to the left of the 21 door per typical procedures. (Id. at 33.) From there, Dr. Stewart would have either 22 kneeled on the ground or sat on a stool outside the cell so that he could communicate 23 with Ms. Garot through the food flap in the door. (Id. at 33–34.) Based on Dr. Stewart’s 24 practices, it is unlikely that he reviewed Ms. Garot’s prior medical records before the 25 evaluation. (Id. at 30.) 26

27 11 See also ECF No 171-2, at 41–42. 28 1 Dr. Stewart noted that Ms. Garot required prompting to cover herself appropriately 2 when he began his assessment. (ECF No. 191-1, 228.) Ms. Garot engaged with fair eye 3 contact and appeared alert and attentive but evidenced significant disorganized thought 4 processes and gave an inconsistent self-report. (Id.) Ms. Garot also reported memory 5 problems and had a poor grasp on reality. (Id.) She told Dr. Stewart that she was 6 currently in a store and described seeing a dragon fly on her arm and a cowboy in her 7 cell. (Id.) Ms. Garot denied any suicidal or homicidal ideation. (Id.) 8 Dr. Stewart opined that he was unable to reliably assess Ms. Garot’s prior 9 diagnosis or substance abuse history due to her contradictory statements. (Id.) He found 10 that Ms. Garot was suffering from unspecified psychosis and that substance-induced 11 psychosis could be a factor. (Id. at 229.) Possible substance-induced psychosis was 12 suspected based on her arrest for being under the influence and the presentation of 13 symptoms that could be the result of intoxication, withdrawal, or extended impact of a 14 substance. (Stewart Dep., at 62.) 15 Dr. Stewart concluded that Ms. Garot presented a low risk of self-harm and could 16 be cleared from the safety cell and move to enhanced observation housing (“EOH”) with 17 a follow-up in one day. (Id.) No EOH cells were available at the time, so it was arranged 18 for Ms. Garot to be transferred to LCDF and placed in EOH there. (ECF No. 191-3, at 19 262.) 20 Video surveillance of Ms. Garot’s removal from the safety cell a few hours after 21 Dr. Stewart’s evaluation shows Ms. Garot walking gingerly as she is escorted through the 22 jail. (Pl.’s Video Exs. 4–5.) Ms. Garot appears unsteady as she shuffles down the hall 23 while a deputy holds her arm. (Id.) Ms. Garot was transferred to LCDF at approximately 24 7:45 p.m. on the evening of April 15, 2018. (ECF No. 191-1, at 230.) 25 F. Examination by Dr. Von Lintig and Transfer to the Emergency 26 Department, April 15–16, 2018 27 Upon arriving at LCDF, Ms. Garot was immediately placed in medical observation 28 bed (“MOB”) EOH until she was cleared by a psychiatrist. (ECF No. 191-3, at 264.) 1 According to an incident report, at approximately 11:00 p.m. on the night of her arrival 2 Ms. Garot was observed by a deputy standing inside MOB EOH completely naked. (ECF 3 No. 191-3, at 266.)13 Ms. Garot was yelling through the intercom that she needed to get 4 out of there and the deputy was informed that Ms. Garot had previously rushed the door 5 attempting to get out. (Id.) About thirty minutes later, Ms. Garot was observed pacing 6 aimlessly around the ward still naked. (Id.) Ms. Garot became disruptive enough to 7 wake another inmate and she can be seen getting hit in the head by another inmate. (Id.; 8 Pl.’s Video Ex. 7.) 9 The decision was made to transfer Ms. Garot to a safer environment based on her 10 unpredictable behavior. (ECF No. 191-3, at 267.) When deputies entered the ward to 11 remove Ms. Garot, she began shaking nervously. (Id.) Ms. Garot was described as 12 disoriented and unable to answer questions. (Id.) Ms. Garot was placed in a safety cell 13 and was to remain there until evaluated by the facility psychiatrist. (Id.) 14 At approximately 9:10 a.m. on the morning of April 16, 2018, Dr. Von Lintig 15 assessed Ms. Garot in the safety cell. (ECF No. 191-2, at 175.) Dr. Von Lintig was told 16 that Ms. Garot was a newly transferred add-on patient to see in a safety cell and did not 17 review her medical records prior to the assessment. (Von Lintig Dep., at 15, 18.)14 The 18 objective of Dr. Von Lintig’s assessment was to check for any acute medical concerns 19 such as serious injuries or altered mental states. (Id. at 16–17.) 20 Dr. Von Lintig testified that County of San Diego policy prohibited her from 21 entering Ms. Garot’s safety cell during the assessment unless a time-consuming 22 evacuation team was assembled. (Id. at 17.) As a result, Dr. Von Lintig examined Ms. 23 Garot through the window on the door of the cell and through the food flap. (Id. at 13.) 24 When Dr. Von Lintig approached Ms. Garot’s cell, Ms. Garot was naked and her hair 25 26

27 13 See also ECF No. 165-3, at 20. 28 1 was hanging over her forehead, obstructing Dr. Von Lintig’s view of the bruising on Ms. 2 Garot’s forehead. (Id. at 12–13.) 3 Dr. Von Lintig reported that Ms. Garot was delusional-appearing and that she had 4 no injuries except for the black eye. (ECF No. 191-1, at 242.)15 According to Dr. Von 5 Lintig, Ms. Garot was uncooperative and was looking past her speaking to an invisible 6 third party. (Id.) Dr. Von Lintig believed that Ms. Garot was suffering from a 7 psychiatric problem rather than a medical problem and concluded that Ms. Garot had “no 8 acute [m]edical issues at [that] time.” (Id.; Von Lintig Dep., at 28–29.) 9 After Dr. Von Lintig’s examination at 9:10 a.m., Ms. Garot was observed up and 10 talking until 9:47 a.m. (ECF No. 191-2, at 175.) After that, deputies recorded every ten 11 to fifteen minutes that Ms. Garot was sleeping. (Id. at 175–76.) A deputy approached 12 Ms. Garot’s cell at approximately 11:18 a.m. and saw Ms. Garot lying on her back 13 purportedly seizing. (ECF No. 191-3, at 171.) The deputy summoned help. (Id.) 14 Dr. Von Lintig responded to the deputy’s call for help and arrived at Ms. Garot’s 15 cell to find that she was still seizing. (ECF No. 191-1, at 245.)16 Dr. Von Lintig entered 16 the cell and moved Ms. Garot’s hair out of her face, revealing the full extent of Ms. 17 Garot’s head wound to Dr. Von Lintig for the first time. (Von Lintig Dep., at 40–41.) 18 EMS arrived on the scene at approximately 11:35 a.m., and Ms. Garot was transported to 19 the hospital ten minutes later. (ECF No. 191-1, at 243–44.) 20 G. Observations of Ms. Garot, April 13–15, 2018 21 After Ms. Garot’s hospitalization, San Diego County Sheriff’s detectives 22 interviewed female inmates who were housed with Ms. Garot at VDF. One inmate 23 described Ms. Garot as “really, really shaky” and acting strangely. (ECF No. 191-3, at 24 180.) Another inmate recounted having to help Ms. Garot write out medical requests 25 because Ms. Garot was shaking so much. (Id. at 173.) Ms. Garot was also described as 26

27 15 See also ECF No. 165-3, at 25. 28 1 “weak and brittle” and hardly able to hold herself up, requiring assistance to get up off of 2 a chair. (Id. at 199, 201.) When told Ms. Garot was hospitalized, one inmate replied, 3 “I’m assuming from being beaten . . . having, you know, I mean, a little bit of brain 4 damage right now, I would think.” (Id. at 208.) The inmate added “I mean, if you look at 5 her face and head . . . being hit that hard, I would assume your brain would swell.” (Id.) 6 H. Ms. Garot’s Current Condition 7 At the hospital Ms. Garot was diagnosed with a basilar skull fracture and left-sided 8 subdural hematoma. (ECF No. 165-4, at 25.) Ms. Garot underwent surgery to evacuate 9 the subdural hematoma but sustained permanent brain damage. (Id.; ECF No. 53, at 11.) 10 Ms. Garot is now completely incapacitated. (ECF No. 53, at 11.) 11 III. LEGAL STANDARD 12 A. Summary Judgment 13 Summary judgment is appropriate where the record, taken in the light most 14 favorable to the nonmoving party, demonstrates that “there is no genuine dispute as to 15 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 16 Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A “material” 17 fact is one “that might affect the outcome of the case,” and an issue of material fact is 18 “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” 19 Anderson, 477 U.S. at 248. 20 “A moving party without the ultimate burden of persuasion at trial . . . has both the 21 initial burden of production and the ultimate burden of persuasion on a motion for 22 summary judgment.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 23 1099, 1102 (9th Cir. 2000). The moving party can carry its burden of production by 24 either (1) presenting evidence that negates an essential element of the nonmoving party’s 25 case, or (2) by showing that the nonmoving party does not have enough evidence of an 26 essential element to carry its ultimate burden of persuasion at trial. Id. If the moving 27 party fails to discharge this initial burden, the nonmoving party may defeat summary 28 judgment without producing anything. Id. at 1102–03. 1 If, however, the moving party meets their initial burden, the nonmoving party 2 cannot defeat summary judgment merely by demonstrating “that there is some 3 metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio 4 Corp., 475 U.S. 574, 586 (1986); see also Triton Energy Corp. v. Square D Co., 68 F.3d 5 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of 6 the non-moving party’s position is not sufficient.”). Rather, the nonmoving party must 7 “go beyond the pleadings” and designate “specific facts showing that there is a genuine 8 issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. 9 P. 56(e)). 10 “[T]he district court may limit its review to the documents submitted for the 11 purpose of summary judgment and those parts of the record specifically referenced 12 therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 13 2001). The Court is not obligated “to scour the record in search of a genuine issue of 14 triable fact.” Keenan v. Allan, 91 F.3d 12705, 1279 (9th Cir. 1996) (quoting Richards v. 15 Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995)). 16 B. Deliberate Indifference 17 As a threshold matter, Ms. Garot’s claims are governed by the Eighth Amendment. 18 See Castro v. County of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016) (“Inmates 19 who sue prison officials for injuries suffered while in custody may do so under the Eighth 20 Amendment's Cruel and Unusual Punishment Clause or, if not yet convicted, under the 21 Fourteenth Amendment's Due Process Clause.”); see also Flores v. Mesenbourg, 1997 22 WL 303277, at *1 (9th Cir. June 2, 1997) (holding that a convicted prisoner incarcerated 23 for a parole violation “must rely on the Eighth Amendment to support his claim” because 24 “[h]is original conviction is the authority under which he was confined after his parole”). 25 To maintain an Eighth Amendment claim for inadequate prison medical care under 26 42 U.S.C. § 1983, a plaintiff must demonstrate “deliberate indifference to serious medical 27 needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Inherent in this type of claim is the 28 requirement that a plaintiff must show both a “serious medical need” and “deliberate 1 indifference” on the defendant’s part. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2 2006). A “serious medical need” is one in which “failure to treat a prisoner's condition 3 could result in further significant injury or the ‘unnecessary and wanton infliction of 4 pain.’” Id. (citation omitted) (quoting Estelle, 429 U.S. at 104). There is no dispute that 5 Ms. Garot’s injuries constituted a serious medical need. The only issue then is whether 6 Defendants’ responses to that need rise to deliberate indifference. 7 “Deliberate indifference is a high legal standard” that goes beyond medical 8 malpractice or negligence. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 9 “Under this standard, an inadvertent failure to provide adequate medical care, differences 10 of opinion in medical treatment, and harmless delays in treatment are not enough to 11 sustain an Eighth Amendment claim.” Simmons v. G. Arnett, 47 F.4th 927, 934 (9th Cir. 12 2022) (citations omitted). “Rather, to prevail on a claim involving choices between 13 alternative courses of treatment, a prisoner must show that the chosen course of treatment 14 was medically unacceptable under the circumstances, and was chosen in conscious 15 disregard of an excessive risk to the prisoner's health.” Toguchi, 391 F.3d at 1058. To be 16 sure, the defendant “must both be aware of facts from which the inference could be 17 drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 18 Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[D]eliberate indifference to medical 19 needs may be shown by circumstantial evidence when the facts are sufficient to 20 demonstrate that a defendant actually knew of a risk of harm.” Lolli v. Cnty. of Orange, 21 351 F.3d 410, 421 (9th Cir. 2003) (citing Farmer, 511 U.S. at 842). 22 Finally, “plaintiffs alleging deliberate indifference must also demonstrate that the 23 defendants’ actions were both an actual and proximate cause of their injuries.” Lemire v. 24 California Dep't of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). Conduct is an 25 actual cause of injury “only if the injury would not have occurred ‘but for’ that conduct.” 26 White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990). “Once it is established that the 27 defendant’s conduct has in fact been one of the causes of the plaintiff’s injury, there 28 remains the question whether the defendant should be legally responsible for the injury.” 1 Id. at 1506 (quotation omitted). A defendant’s conduct “is not the proximate cause of 2 [the plaintiff’s] alleged injuries if another cause intervenes and supersedes his liability for 3 the subsequent events.” Id. But “foreseeable intervening causes will not supersede the 4 defendant’s responsibility.” Id. (quotation omitted). “‘If reasonable persons could differ’ 5 on the question of causation then ‘summary judgment is inappropriate and the question 6 should be left to a jury.’” Lemire, 726 F.3d at 1080 (quoting White, 901 F.2d at 1506). 7 C. Professional Negligence 8 “The elements of a claim for professional negligence are: (1) the duty of the 9 professional to use such skill, prudence, and diligence as other members of his profession 10 commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal 11 connection between the negligent conduct and the resulting injury; and (4) actual loss or 12 damage resulting from the professional’s negligence.” Paul v. Patton, Cal. Rptr. 3d 830, 13 835 (2015) (quotation omitted). “Because the standard of care in a medical malpractice 14 case is a matter peculiarly within the knowledge of experts,” California law requires 15 expert testimony to “prove or disprove that the defendant performed in accordance with 16 the standard of care unless the negligence is obvious to a layperson.” Johnson v. 17 Superior Ct., 49 Cal. Rptr. 3d 52, 58 (2006) (quotations omitted). 18 IV. DISCUSSION 19 A. Deliberate Indifference 20 1. NP Dela Cruz 21 NP Dela Cruz maintains that he did not violate Ms. Garot’s Eighth Amendment 22 rights because he did not have a subjectively culpable state of mind to support such a 23 claim, and his treatment did not objectively place Ms. Garot at risk of sufficiently serious 24 harm. (ECF No. 165-1, at 15–16.) NP Dela Cruz argues that his performance of a full 25 body assessment, including but not limited to neurological, eye, and extremities 26 assessments, combined with his inquiry of Ms. Garot’s bruising, demonstrates that he 27 consciously addressed Ms. Garot’s presentation to determine if there was a risk to her 28 health. (Id. at 16.) NP Dela Cruz further points to the testimony of Ms. Garot’s liability 1 expert Dr. Venters, who stated that a black eye without any behavioral disturbances or 2 abnormal vital signs is not a medical emergency in and of itself. (Venters. Dep., at 3 141.)17 According to NP Dela Cruz Ms. Garot did not exhibit any behavioral disturbances 4 upon presentation, nor did she exhibit an inability to walk or slurred speech. (ECF No. 5 165-1, at 17.) Therefore, NP Dela Cruz argues there was nothing in his evaluation which 6 should have resulted in Ms. Garot being sent to the emergency department. (Id.) 7 Ms. Garot counters that NP Dela Cruz testified that Ms. Garot’s raccoon eye could 8 indicate the presence of a basilar skull fracture particularly if the patient exhibited other 9 symptoms such as dizziness. (ECF No. 191, at 57; Dela Cruz Dep., at 49–51.)18 Thus, 10 Ms. Garot asserts, a jury could find that NP Dela Cruz consciously disregarded a serious 11 risk of harm to Ms. Garot based on his awareness of her raccoon eye and Ms. Garot’s 12 presentation of dizziness. (ECF No. 191, at 57.) Additionally Ms. Garot stresses that 13 summary judgment is improper for NP Dela Cruz because a critical factual dispute exists 14 regarding Ms. Garot’s presentation and her symptoms at the time of NP Dela Cruz’s 15 evaluation, and a reasonable jury could choose to disbelieve NP Dela Cruz’s observations 16 based on other evidence including the observations of other inmates. (Id. at 59.) 17 The Court agrees that summary adjudication is inappropriate due to underlying 18 material factual disputes. One of Ms. Garot’s experts, Dr. Lobatz, testified that the 19 symptoms of a subdural hematoma include outward signs of head trauma and other 20 symptoms such as headache, cognitive impairment, difficulties with balance, dizziness, 21 slurred speech, and confusion.19 (Lobatz Dep., at 15.)20 NP Dela Cruz acknowledged in 22 his deposition that a raccoon eye combined with even one or two other listed symptoms, 23 including dizziness, could indicate a basilar skull fracture. (Dela Cruz Dep., at 50–51.) 24 25 17 See ECF No. 165-4, at 62–90. 26 18 See ECF No. 191-2, at 28–30. 19 The Court need not address Dr. Tran and Dr. Stewart’s objections to Dr. Lobatz’s testimony as their 27 objections only relate to Dr. Lobatz’s ability to opine as to the applicable standard of care. (See ECF No. 198, at 5; ECF No. 214, at 2.) 28 1 NP Dela Cruz reviewed Nurse Hagg’s notes before his evaluation and was therefore on 2 notice that Ms. Garot had reported occasional dizziness. NP Dela Cruz also noted 3 himself that Ms. Garot reported dizziness taking Seroquel. Even though NP Dela Cruz 4 was confused by Ms. Garot’s explanation, it does not negate the fact that she reported 5 dizziness. NP Dela Cruz’s failure to provide further medical care to Ms. Garot when she 6 presented with the outward appearance of head trauma and one other symptom of a 7 subdural hematoma, namely dizziness, could provide circumstantial evidence of 8 deliberate indifference. Thus, whether Ms. Garot was experiencing dizziness or 9 confusion is a disputed issue of fact that is material because it bears on whether NP Dela 10 Cruz’s actions in failing to treat Ms. Garot as though she had a subdural hematoma was 11 medically acceptable, and on what inferences NP Dela Cruz could have drawn at the 12 time. 13 NP Dela Cruz testified that he performed a full neuro exam despite not reporting as 14 such, and he additionally testified that he must have evaluated Ms. Garot’s ability to 15 move her extremities and ambulate because it was in his report. (Dela Cruz Dep., at 45– 16 46, 59–60.) But the credibility of NP Dela Cruz’s testimony is only suitable for 17 determination by a jury, and it follows that whether NP Dela Cruz took the appropriate 18 steps in light of his knowledge and the circumstances is also a question for the jury. See 19 Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of the evidence, 20 and the drawing of legitimate inferences from the facts are jury functions.”). 21 NP Dela Cruz also challenges the causal link between his actions and Ms. Garot’s 22 current condition. (ECF No. 165-1, at 20.) NP Dela Cruz attacks the proximate 23 causation of Ms. Garot’s injuries by arguing that the fall from her top bunk was an 24 intervening event that broke the causal chain between NP Dela Cruz’s evaluation and Ms. 25 Garot’s current injuries. (Id. at 21.) Even if Ms. Garot had a developing subdural 26 hematoma at the time of his evaluation, NP Dela Cruz asserts Ms. Garot cannot prove 27 that the ultimate outcome would be the same without the fall from the bunk. (Id.) NP 28 Dela Cruz broadly argues that Ms. Garot cannot establish causation because she has not 1 shown that even if she were transported to the emergency department her condition 2 would have been successfully diagnosed and treated. (Id. at 23.) 3 Ms. Garot responds that a reasonable jury could conclude that NP Dela Cruz 4 inflicted serious harm to Ms. Garot when he refused to have her transported to an 5 emergency department because his failure to function as an appropriate “gatekeeper” 6 initiated a chain of events that caused her catastrophic harm. (ECF No. 191, at 60.) This 7 is based in part on an expert report from Dr. Lobatz, who stated that a hospital would 8 have diagnosed Ms. Garot’s subdural hematoma which was, at the time of NP Dela 9 Cruz’s evaluation, treatable with a high likelihood of good recovery. (Id.; ECF No. 191- 10 1, at 60.) Additionally, NP Dela Cruz’s failure to send Ms. Garot to the emergency 11 department subjected her to unnecessary pain and suffering as her subdural hematoma 12 expanded according to Ms. Garot. (Id. at 61.) 13 The record is replete with factual disputes concerning causation. For example, 14 whether Ms. Garot was suffering from a subdural hematoma at the time she was seen by 15 NP Dela Cruz, and whether it was treatable such that transporting Ms. Garot to the 16 hospital would have changed the outcome are both material factual disputes that can only 17 be resolved through expert testimony by a jury at trial. Furthermore, it is a material 18 dispute whether Ms. Garot’s fall from the bunk was an intervening cause because if the 19 fall was foreseeable due to her instability, then NP Dela Cruz would still be potentially 20 liable. Foreseeability in this context is a fact-intensive question that the Court is not 21 suited to resolve on summary judgment. See White, 901 F.2d at 1506 (“The issue as to 22 whether a described consequence was ‘foreseeable,’ and the issue as to whether an 23 intervening force was ‘abnormal’ are to be decided as issues of fact are decided.” 24 (quotation omitted)). In sum, reasonable people could differ on the on the question of 25 whether NP Dela Cruz’s failure to call for Ms. Garot to be transported to an emergency 26 department caused Ms. Garot’s injuries, precluding summary adjudication of this issue. 27 28 1 2. Dr. Stewart 2 The Court begins by addressing Liberty and Dr. Stewart’s evidentiary objections of 3 consequence. 21 Liberty and Dr. Stewart contend that Ms. Garot’s standard of care 4 experts are not qualified to opine as to what Dr. Stewart should have done in the course 5 of performing a suicide risk assessment on Ms. Garot. (ECF No. 198, at 5.) Ms. Garot 6 designated three standard of care experts pertaining to Dr. Stewart, but the Court only 7 considers testimony of one, Bonny J. Forrest, J.D., Ph.D., and thus only addresses 8 objections to her testimony. 9 Liberty and Dr. Stewart attack Dr. Forrest’s qualifications to render opinions 10 concerning how Dr. Stewart conducted his in-custody suicide risk assessment of Ms. 11 Garot. (ECF No. 198, at 11.) Dr. Forrest was asked in her deposition whether she has 12 ever performed a suicide risk assessment of an inmate or detainee at the request of a 13 correctional facility, and she responded that she had done more than one but did not feel 14 comfortable going beyond that estimate. (Id. at 9–10.) Dr. Forrest also stated that the 15 last time she saw an inmate or detainee in jail who was actively suicidal was more than 16 twenty years ago. (Id. at 10.) Liberty and Dr. Stewart request Dr. Forrest’s testimony be 17 stricken based on this deposition testimony. 18 Federal Rule of Evidence 702 allows “[a] witness who is qualified as an expert by 19 knowledge, skill, experience, training, or education” to testify. Expert testimony must be 20 both reliable and rooted in sound methodology. Fed. R. Evid. 702. “The party offering 21 the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image 22 Tech., Inc. v. Cone Editions Press, Ltd., No. 02-cv-2258-JM-AJB, 2007 WL 935703, at 23 *4 (S.D. Cal. Mar. 7, 2007); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 24 n.10 (1993). Liberty and Dr. Stewart only challenge Dr. Forrest’s qualifications and not 25 the reliability or methodology of her testimony. 26 27 28 1 “In the Ninth Circuit, an expert may be qualified to offer a particular opinion either 2 as a result of practical training or academic experience.” McMorrow v. Mondelez Int'l, 3 Inc., No. 17-CV-2327-BAS-JLB, 2020 WL 1237150, at *2 (S.D. Cal. Mar. 13, 2020) 4 (citing Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994)). “[T]he 5 advisory committee notes emphasize that Rule 702 is broadly phrased and intended to 6 embrace more than a narrow definition of qualified expert.” Thomas, 42 F.3d at 1269. A 7 lack of particularized expertise goes to the weight accorded an expert’s opinion, not the 8 admissibility. United States v. Garcia, 7 F.3d 885, 889 (9th Cir. 1993). 9 Dr. Forrest possesses an advanced degree with specializations in pediatric 10 psychology and neuropsychology and has over twenty years of experience as a clinical 11 and consulting psychologist. (ECF No. 191-3, at 121–124.) Dr. Forrest’s academic 12 training combined with her experience provides at least a “minimal foundation of 13 knowledge, skill, and experience” to give expert testimony on the standard of care of a 14 psychologist. Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 15 2004) (quoting Thomas, 42 F.3d at 1269). 16 Liberty and Dr. Stewart also object to Dr. Forrest’s testimony on the grounds that 17 her testimony is predicated on the mistaken assumption that Dr. Stewart could have 18 performed his assessment from inside Ms. Garot’s cell, and that her testimony is 19 cumulative. (ECF No. 198, at 11, 23.) 20 First, the Court declines to strike Dr. Forrest’s testimony due to an alleged mistake 21 of fact. The Federal Rule of Civil Procedure 702 advisory committee’s note to the 2000 22 amendment states that the rule is “not intended to authorize a trial court to exclude an 23 expert's testimony on the ground that the court believes one version of the facts and not 24 the other.” After all, “[t]he weakness in the underpinnings of expert opinions may be 25 developed upon cross-examination and such weakness goes to the weight and credibility 26 of the testimony,” not admissibility. Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 (9th 27 Cir. 1987). 28 1 Second, the nonmoving party need not produce evidence in a form that would be 2 admissible at trial in order to avoid summary judgment. Celotex Corp. v. Catrett, 477 3 U.S. 317, 324 (1986). The Court is not convinced that Ms. Garot will be unable to 4 present Dr. Forrest’s testimony in an admissible form at trial. Limiting the testimony as 5 cumulative is unwarranted and Liberty and Dr. Stewart’s evidentiary objections to Dr. 6 Forrest’s testimony are overruled. 7 As for the merits of Dr. Stewart’s motion, Dr. Stewart puts forth the same 8 arguments as NP Dela Cruz: his course of treatment was not medically unacceptable 9 under the circumstances, and he did not have a subjectively culpable state of mind to 10 support Ms. Garot’s claim. (ECF No. 171-1, at 15, 19.) Dr. Forrest opined that Dr. 11 Stewart’s actions fell below the standard of care because he failed to rule out a medical 12 condition as a cause of Ms. Garot’s behavioral issues. (ECF No. 191-3, at 11.) But Dr. 13 Stewart argues that Dr. Forrest never stated that Ms. Garot’s behavior issues were in fact 14 due to a skull fracture and brain bleed, and without this evidence one cannot conclude 15 that Dr. Stewart’s diagnosis was wrong or medically unacceptable. (ECF No. 171-1, at 16 16.) 17 Dr. Forrest additionally stated that Dr. Stewart appeared to have assumed that Ms. 18 Garot’s behavior was more likely the result of substance abuse. (ECF No. 191-3, at 13.) 19 This, says Dr. Stewart, is not the same as stating that he acted in conscious disregard of 20 Ms. Garot’s medical state. (ECF No. 171-1, at 20.) Dr. Stewart asserts that he did not act 21 in place of a medical examiner, he did not supplant a medical examiner, and he did not 22 see a psychiatric emergency. (Id.) Dr. Forrest never opined that a psychiatric emergency 23 existed, and Ms. Garot did not attempt suicide. (Id.) Therefore, Dr. Stewart concludes 24 that there is no evidence that he acted with conscious disregard. (Id.) 25 Ms. Garot calls attention to Dr. Stewart’s acknowledgment that he uses the 26 Diagnostic and Statistical Manual of Mental Disorders (“DSM”) to diagnose patients 27 after an assessment in jail. (Stewart Dep., at 69.) As Dr. Forrest noted, the DSM requires 28 psychologists to rule out a medical condition that may account for the psychological 1 symptoms Dr. Stewart observed. (ECF No. 191-3, at 12.) Dr. Stewart made no attempt 2 to rule out a medical condition as the cause of Ms. Garot’s behavior and it is because of 3 this, states Ms. Garot, that Dr. Stewart’s actions were medically unacceptable. (ECF No. 4 191, at 65.) Ms. Garot makes the additional, broader argument that Dr. Stewart was 5 obligated to ensure that Ms. Garot receive treatment at a hospital because her psychosis, 6 whether medical or psychiatric in nature, constituted a medical emergency. (Id. at 66.) 7 Going to Dr. Stewart’s state of mind, Ms. Garot asserts that a reasonable jury could 8 find that Dr. Stewart suspected Ms. Garot had a medical condition based on her raccoon 9 eye and her presentation during the examination. (Id.) Further, a jury could find that Dr. 10 Stewart consciously disregarded a risk of serious harm because he made no effort to enter 11 Ms. Garot’s cell to fully examine her or review her full medical chart even though Ms. 12 Garot had obvious head trauma. (Id.) According to Ms. Garot this is evidence of willful 13 ignorance that rises to the level of deliberate indifference. (Id. at 67.) 14 Dr. Stewart acknowledged that he uses the DSM which requires psychologists to 15 distinguish medical conditions from psychiatric conditions. Evidence shows that Ms. 16 Garot presented to Dr. Stewart with significant disorganized thoughts, memory problems, 17 hallucinations, and a poor grasp on reality. Whether Dr. Stewart’s standard of care is set 18 by the DSM, and whether that standard required him to take further steps to rule out a 19 medical condition as the cause of these symptoms, are triable issues of material fact. 20 Furthermore, Dr. Stewart’s argument that he should be relieved from liability 21 because he was only called on to determine whether there was a psychiatric emergency is 22 unpersuasive. See Farmer, 511 U.S. 825, 843 (1994) (“[A defendant] would not escape 23 liability if the evidence showed that he merely refused to verify underlying facts that he 24 strongly suspected to be true, or declined to confirm inferences of risk that he strongly 25 suspected to exist.”). A factual dispute arises as to whether Dr. Stewart used the guise of 26 having the narrow objective of determining Ms. Garot’s suicidal propensity to remain 27 willfully ignorant of Ms. Garot’s medical status by refusing to verify underlying facts or 28 1 declining to confirm an inference of risk. Thus another genuine dispute of a material 2 fact, Dr. Stewart’s mental state, exists and summary adjudication is denied. 3 3. Dr. Von Lintig 4 Dr. Von Lintig, like the other Defendants, argues that her course of action was 5 medically acceptable and that she lacked the requisite state of mind. (ECF No. 165-1, at 6 26–27.) Dr. Von Lintig maintains that she completed a full evaluation under the 7 circumstances, which included evaluating Ms. Garot’s gait, the ability to move her limbs, 8 whether her speech was slurred, and her level of consciousness. (Id. at 26.) Dr. Von 9 Lintig asserts that these findings, in combination with her later efforts to further review 10 Ms. Garot’s medical record, show that she subjectively took Ms. Garot’s medical 11 condition into consideration and reasonably ruled out an immediate concern. (Id.) The 12 crux of Dr. Von Lintig’s arguments is that Ms. Garot was an add-on patient and therefore 13 Dr. Von Lintig had very limited information and could not have been aware of Ms. 14 Garot’s past symptoms. (Id.) Regarding the concerning behavior that Dr. Von Lintig 15 personally observed, Ms. Garot was in a safety cell during Dr. Von Lintig’s evaluation 16 which is usually a place for psychiatric patients. (Id.) Thus Dr. Von Lintig concludes 17 that it was not unusual for Ms. Garot to exhibit bizarre behavior, and it was not clear that 18 the symptoms of a subdural hematoma were present. (Id. at 27.) For these reasons Ms. 19 Garot’s presentation was not objectively consistent with a subdural hematoma and Dr. 20 Von Lintig’s actions could not be considered deliberately indifferent. (Id.) 21 Ms. Garot counters that Dr. Von Lintig’s purpose in seeing Ms. Garot was to 22 assess acute medical concerns in light of symptoms indicating a serious medical 23 condition, and yet she made no effort to enter Ms. Garot’s cell or obtain a medical history 24 on Ms. Garot. (ECF No. 191, at 69–70.) Based on this, Ms. Garot argues that a 25 reasonable jury could find that Dr. Von Lintig acted with conscious disregard to a 26 substantial risk of harm. (Id. at 70.) Even if a jury were to credit Dr. Von Lintig’s 27 statement that she was unable to enter the safety cell, Ms. Garot says that there was still 28 no basis for Dr. Von Lintig’s failure to review medical records, request that Ms. Garot be 1 moved to medical, or call 911. (Id.) Dr. Von Lintig chose to provide no treatment after 2 personally observing confusion, delusion, and a raccoon eye that Ms. Garot characterizes 3 as a textbook example of deliberate indifference. (Id. at 72.) 4 Dr. Von Lintig’s motion for summary adjudication on Ms. Garot’s deliberate 5 indifference claim is denied for substantially the same reasons that the Court denied NP 6 Dela Cruz and Dr. Stewart’s motions. By the time Dr. Von Lintig evaluated Ms. Garot, 7 she was uncooperative and speaking to an invisible third person. Dr. Von Lintig also 8 took note of Ms. Garot’s black eye although she was unable to observe the abrasions on 9 Ms. Garot’s forehead. It is a question for the jury whether these facts are sufficient to 10 create an inference that Ms. Garot was at a substantial risk of harm, and whether Dr. Von 11 Lintig drew such an inference but chose not to take further action despite its existence. A 12 triable issue also exists as to what the medically acceptable response to such symptoms 13 would be, and whether Dr. Von Lintig’s course of treatment fell in line with that 14 standard. Dr. Von Lintig’s argument that Ms. Garot was merely an add-on patient and 15 Dr. Von Lintig did not have access to her medical records does not foreclose the 16 possibility that a jury could find that Dr. Von Lintig’s actions were medically 17 unacceptable based simply on the symptoms she observed. Therefore, Ms. Garot’s 18 presentation, whether her symptoms indicated a substantial risk of harm, and whether Dr. 19 Von Lintig was aware of the risk yet did nothing are all triable issues of fact that prevent 20 the Court from entering summary adjudication. 21 Dr. Von Lintig also challenges the causation between her actions and Ms. Garot’s 22 injuries in stating that even if she called 911 during her initial evaluation, Ms. Garot 23 would still have ended up in the same condition. (ECF No. 165-1, at 27.) But Ms. Garot 24 points out that there is a dispute as to the timeline within which she collapsed, stopped 25 moving, and became comatose and a jury could conclude that Dr. Von Lintig could have 26 assisted Ms. Garot. (ECF No. 191, at 72.) In any event, Ms. Garot claims that the 27 constitutional injury occurred the moment Dr. Von Lintig denied Ms. Garot medical care 28 causing further pain and suffering in violation of the Eighth Amendment. (Id. at 73.) 1 The Court agrees with Ms. Garot. There was a two-hour time period between Dr. 2 Von Lintig’s examination of Ms. Garot and when EMS was called. Ms. Garot collapsed 3 at some point within those two hours. Exactly when Ms. Garot collapsed and when her 4 injuries reached an irreversible point of severity are disputed facts that are material in 5 determining causation and will require medical expert testimony to resolve. Ms. Garot 6 has presented expert testimony that her injuries became irreversible at some point in 7 those two hours which does not rule out the possibility that there was time for Dr. Von 8 Lintig to change the outcome. (See Lobatz Dep., at 63.) A reasonable jury could 9 conclude, based on expert testimony, that Dr. Von Lintig caused Ms. Garot’s injuries by 10 delaying emergency medical help. Summary adjudication is denied as to Dr. Von 11 Lintig’s alleged deliberate indifference. 12 B. Professional Negligence 13 All Defendants argue that Ms. Garot’s claims for professional negligence fail as a 14 matter of law, basing these arguments on the same allegations that form the foundations 15 for the deliberate indifference claims. (ECF No. 165-1, at 28–30; ECF No. 171-1, at 21– 16 22.) Having found that there are genuine disputes of material fact going to whether the 17 Defendants’ actions were medically acceptable, the Court finds that the same disputes 18 arise in determining whether Defendants’ actions fell below the standard of care for 19 purposes of establishing negligence, a much lower standard. See Lemire, 726 F.3d at 20 1081–82 (“The indifference to a prisoner's medical needs must be substantial. Mere 21 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this claim.” 22 (quotation omitted)). Summary adjudication of Ms. Garot’s professional negligence 23 claims is denied. 24 C. Vicarious Liability 25 CCMG argues that it may be dismissed if the claims against Dr. Von Lintig and 26 NP Dela Cruz are dismissed. (ECF No. 165-1, at 30–31.) Liberty argues in a similar 27 fashion that it cannot be vicariously liable if Dr. Stewart is not liable and should be 28 1 dismissed if the claims against Dr. Stewart are dismissed. (ECF No. 171-1, at 22.) Ms. 2 Garot does not address, and therefore does not dispute, these assertions. 3 In light of this Order, there has yet to be a finding of liability or lack thereof on 4 these matters. Therefore CCMG and Liberty’s arguments that they may be dismissed if 5 Dr. Von Lintig, NP Dela Cruz, and Dr. Stewart are absolved of liability is rejected as 6 premature and summary adjudication of this issue is denied. 7 D. Punitive Damages 8 Ms. Garot seeks punitive damages against, Dr. Stewart, Dr. Von Lintig, and NP 9 Dela Cruz relating to her claims for deliberate indifference.22 (ECF No. 53, at 22.) These 10 Defendants argue that Ms. Garot is not entitled to punitive damages because they lacked 11 the requisite mental state. (See ECF No. 165-1, at 29–30; ECF No. 171-1, at 20–21.) 12 Ms. Garot did not address punitive damages in her opposition. 13 In § 1983 cases, punitive damages are recoverable “when the defendant’s conduct 14 is shown to be motivated by evil motive or intent, or when it involves reckless or callous 15 indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 16 (1983). “Conduct is in reckless disregard of the plaintiff’s rights if, under the 17 circumstances, it reflects complete indifference to the plaintiff’s safety, rights, or the 18 defendant acts in the face of a perceived risk that its actions will violate the plaintiff’s 19 rights under federal law.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005) (quoting 9th 20 Cir. Model Civ. Jury Instr. 7.5 (2004)). 21 While Ms. Garot does not dispute the argument that she is not entitled to punitive 22 damages, for the reasons stated above with respect to Ms. Garot’s deliberate indifference 23 claims, the Court finds that a reasonable jury could find that Dr. Stewart, Dr. Von Lintig, 24 and NP Dela Cruz acted in reckless disregard of Ms. Garot’s rights. See Gordon v. 25 26 27 22 To the extent that CCMG and Liberty move for summary adjudication on the issue of Ms. Garot’s claim for punitive damages, the Court denies their motion as moot as Ms. Garot is not seeking punitive 28 1 County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (stating that “deliberate 2 indifference” is “akin to reckless disregard”). Therefore, summary adjudication of this 3 issue is inappropriate. See Fed. R. Civ. P. 56(a) (allowing courts to grant summary 4 judgment where there is no genuine dispute as to any material fact and the movant is 5 entitled to judgment as a matter of law). 6 V. COUNTY OF SAN DIEGO’S CROSS-COMPLAINT 7 The Court turns to the County’s cross-complaint, addressing first the County’s 8 motion for summary adjudication on its first crossclaim against Liberty for contractual 9 indemnification then moving to all Cross-Defendants’ motions for summary adjudication 10 on the County’s second and third crossclaims for equitable indemnification and 11 declaratory relief. 12 A. Contractual Indemnification 13 Liberty entered into a contract with the County on January 23, 2017, to provide 14 licensed mental healthcare at county jails (“Liberty Agreement”). (ECF No. 209-1, at 15 2.)23 Section 10.1 of the Liberty Agreement provides: 16 Indemnity. County shall not be liable for, and Contractor shall defend and indemnify County and the employees and agents of County (collectively 17 “County Parties”), against any and all claims, demands, liability, judgments, 18 awards, fines, mechanics’ liens or other liens, labor disputes, losses, damages, expenses charges or costs of any kind or character, including attorneys’ fees 19 and court costs (hereinafter collectively referred to as “Claims”), related to 20 this Agreement or the work covered by this Agreement and arising either directly or indirectly from any act, error, omission or negligence of Contractor 21 or its Contractors, licensees, agents, servants or employees; including, without 22 limitation, Claims caused by the sole passive negligent act or the concurrent negligent act, error or omission, whether active or passive, of County Parties. 23 (Id.) The same provision also states that “Contractor shall have no obligation, however, 24 to defend or indemnify County Parties from a Claim if it is determined by a court of 25 26

27 23 The County provided a joint statement of facts in its reply regarding the motion for summary 28 1 competent jurisdiction that such Claim was caused by the sole negligence or willful 2 misconduct of County Parties.” (Id.) 3 On September 13, 2019, Ms. Garot filed a second amended complaint against the 4 County in which she alleged acts, errors, and omissions by a Liberty employee that 5 resulted in Ms. Garot’s incapacitation. (ECF No. 7.) Due to these allegations, the 6 County tendered a defense to Liberty on April 7, 2020, to which Liberty never replied. 7 (ECF No. 175-2, at 59–60; ECF No. 209-1, at 2.) 8 It is undisputed that the agreement between Liberty and the County is a valid 9 contract. (See ECF No. 209-1, at 2.) The parties also agree that the operative complaint 10 includes claims against Liberty employee Dr. Stewart regarding alleged acts or omissions 11 that proximately caused Ms. Garot’s injuries, and that Liberty has not agreed to provide 12 County a defense in connection with such claims. (Id. at 3.) The County alleges in its 13 crossclaim that Liberty breached the Liberty Agreement when it declined to provide a 14 defense and seeks contractual indemnification for attorneys’ fees and costs the County 15 incurred for its defense in Ms. Garot’s lawsuit and to prosecute its crossclaim. (ECF No. 16 64, at 6–7, 9.) The County now moves for summary adjudication of this claim.24 (ECF 17 No. 175.) 18 The County argues that the duty to defend arose immediately while Liberty argues, 19 pursuant to the second sentence of the indemnity clause, that the duty to defend does not 20 arise until a court determines that the claims were not caused by the sole negligence or 21 willful misconduct of the County. (See generally ECF Nos. 175, 190.) In support of its 22 motion the County cites cases that involve insurance contracts, and Liberty argues that 23 such case law is inapplicable here. (ECF No. 175, at 6–8; ECF No. 190, at 4–8.) While 24 the Court agrees with Liberty’s argument, Crawford v. Weather Shield Mfg., Inc., 187 25 26 27 24 The County only moves for summary adjudication concerning Liberty’s contractual duty to defend, (ECF No. 175-1, at 2, 7–9), thus the Court only reaches this issue and makes no ruling on the issue of 28 1 P.3d 424, 430 (Cal. 2008) (“Though indemnity agreements resemble liability insurance 2 policies, rules for interpreting the two classes of contracts do differ significantly.”), the 3 ultimate outcome favors the County. 4 Interpretation of indemnification contracts in California is governed by 5 statute. Crawford, 187 P.3d at 431 (“If not forbidden by other, more specific, statutes, 6 the obligations set forth in section 2778 [of the California Civil Code] thus are deemed 7 included in every indemnity agreement unless the parties indicate otherwise.”). 8 Subdivision 3 of section 2778 provides that the duty to indemnify “embraces the costs of 9 defense against such claims, demands, or liability incurred in good faith, and in the 10 exercise of a reasonable discretion.” Subdivision 4 of section 2778 defines the duty to 11 defend, stating “[t]he person indemnifying is bound, on request of the person 12 indemnified, to defend actions or proceedings brought against the latter in respect to the 13 matters embraced by the indemnity.” 14 The California Supreme Court held that “[t]he duty to defend upon the 15 indemnitee's request, as set forth in subdivision 4 of section 2778, is distinct from, and 16 broader than, the duty expressed in subdivision 3 of the statute to reimburse an 17 indemnitee's defense costs as part of any indemnity otherwise owed.” Crawford, 187 18 P.3d at 439. Specifically, “[a] contractual promise to ‘defend’ another against specified 19 claims clearly connotes an obligation of active responsibility, from the outset, for 20 the promisee’s defense against such claims,” id. at 431, whereas “[o]ne can only 21 indemnify against ‘claims for damages’ that have been resolved against the indemnitee, 22 i.e., those as to which the indemnitee has actually sustained liability or paid damages,” id. 23 at 435. Put simply, the duty to defend may demand reimbursement of costs to defend 24 against claims that ultimately do not bring about liability and thus do not trigger the duty 25 to indemnify. Id. at 432. 26 The duty to defend “arises immediately upon a proper tender of defense by the 27 indemnitee, and thus before the litigation to be defended has determined whether 28 indemnity is actually owed.” Id. at 434. Further, “under subdivision 4 of section 2778, 1 claims ‘embraced by the indemnity,’ as to which the duty to defend is owed, include 2 those which, at the time of tender, allege facts that would give rise to a duty of 3 indemnity.” Id. Language in the contract absolving the duty to defend or indemnify for 4 the indemnitee’s sole negligence or intentional misconduct does not alter the timing or 5 scope of the duty to defend. See id. at 431 (finding the duty to defend arose immediately 6 and was not dependent on indemnitor’s ultimate obligation despite the prohibition on 7 indemnification for indemnitee’s “sole negligence or willful misconduct”). 8 The Court concludes that Liberty owes a contractual duty to defend the County 9 against the claims brought by Ms. Garot.25 Ms. Garot’s claims against Liberty and Dr. 10 Stewart for deliberate indifference and professional negligence gave rise to a potential 11 duty of indemnity under the contract because the claims were based on alleged acts, 12 errors, omissions, or negligence of Liberty’s employee. Such claims triggered the duty to 13 defend when the County tendered its defense on April 7, 2020, and Liberty breached this 14 duty when it refused to render or fund a defense on the County’s behalf. As a result, the 15 County is entitled to all previous and future attorneys’ fees and costs incurred in 16 defending Ms. Garot’s lawsuit arising from Liberty and Dr. Stewart’s alleged conduct 17 beginning April 7, 2020. See Crawford, 187 P.3d at 555 (“Where the indemnitor has 18 breached this obligation, an indemnitee who was thereby forced, against its wishes, to 19 defend itself is entitled to reimbursement of the costs of doing so.”). The County is also 20 entitled to attorneys’ fees incurred in prosecuting this crossclaim. See also id. at 550, 569 21 (affirming lower court decision that allowed indemnitee to recover costs to prosecute its 22 crossclaim for contractual indemnification). Summary adjudication of the County’s 23 crossclaim against Liberty for contractual indemnification is granted. 24 25 26 27 25 Under the language of the contract, Liberty’s contractual duty to defend will be terminated upon a Court finding that Ms. Garot’s claims were caused by the sole negligence or willful misconduct of the 28 1 B. Equitable Indemnification 2 All Cross-Defendants argue that the County is not entitled to equitable 3 indemnification because the County’s crossclaim is based on the Cross-Defendants’ 4 alleged professional negligence, and the County did not designate any experts in this case 5 as required by California law. (ECF No. 168-1, at 8–9; ECF No. 172-1, at 7–8.) This 6 argument is unavailing. 7 “The elements of a cause of action for equitable indemnity are (1) a showing of 8 fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which 9 the indemnitor is equitably responsible.” C.W. Howe Partners Inc. v. Mooradian, 256 10 Cal. Rptr. 3d 806, 816 (2019). The County need not prove the elements of professional 11 negligence. That burden lies instead with Ms. Garot who actually brought a claim for 12 negligence in front of the Court, unlike the County. Thus the County was not required to 13 designate experts in order to succeed on its claim for equitable indemnification. 14 Moreover, the doctrine of equitable indemnification “applies only among 15 defendants who are jointly and severally liable to the plaintiff.” BFGC Architects 16 Planners, Inc. v. Forcum/Mackey Constr., Inc., 14 Cal. Rptr. 3d 721, 723 (2004). There 17 has been no finding of liability thus far. It follows that liability for Ms. Garot’s injuries is 18 a material issue of fact that precludes summary adjudication of this issue. 19 The Cross-Defendants also argue that the County is not entitled to equitable 20 indemnification from the physicians or their employers if the physicians are not found to 21 be liable. (ECF No. 168-1, at 9–10; ECF No. 172-1, at 8–9.) The County does not 22 dispute this assertion, (ECF No. 188, at 4; ECF No. 189, at 4), and the Court agrees. See 23 Children's Hosp. v. Sedgwick, 53 Cal. Rptr. 2d 725, 729 (1996) (“[T]here can be no 24 indemnity without liability.”). But a material issue of fact still exists as to liability, so 25 summary adjudication on this point is inappropriate. 26 The Cross-Defendants additionally assert that the County is not entitled to 27 attorneys’ fees or costs in connection with its crossclaim. (ECF No. 168-1, at 10–12; 28 ECF No. 172-1, at 9–11.) The County is only seeking attorneys’ fees and costs regarding 1 its crossclaim for breach of contract which is addressed above. (See ECF No. 64, at 9.) It 2 follows that summary adjudication as to attorneys’ fees and costs relating to the second 3 and third crossclaims is denied. 4 C. Vicarious Liability 5 Cross-Defendants CHMA, CCMG, Dr. Von Lintig, and NP Dela Cruz make the 6 additional argument that the County is not entitled to recovery from CHMA because 7 CHMA did not employ or contract with any healthcare providers to provide medical 8 services within the San Diego County jails. (ECF No. 168-1, at 10.) 9 They assert that CHMA was not a party or defined as a party in any contract with 10 the County regarding the provision of medical services, and only CCMG provided in 11 house medical services to the San Diego County jails. (Id.) Therefore CHMA cannot be 12 held liable as the principal or employer of any healthcare provider at issue in this case. 13 (Id.) 14 The County responds that it is entitled to recovery from CHMA based on vicarious 15 liability, particularly the alter ego doctrine and principles of agency law. (ECF No. 188, 16 at 5.) To support its alter ego theory, the County identifies a contract between contractor 17 Tri-City Medical Center and the County which discusses CHMA’s agreement to provide 18 on-site physicians at the County jails. (See ECF No. 168-2, at 30.) As further evidence 19 of an alter ego scenario, the County points out that CHMA’s chief executive officer, 20 Mark O’Brien, DO, is also the chief executive officer of CCMG. (ECF No. 188, at 5.) In 21 any event, the County states, CHMA utilized CCMG and its employees and contractors 22 as agents to perform work under CHMA’s agreement with the County at CHMA’s 23 direction, subjecting CHMA to vicarious liability. (Id.) 24 “Alter ego is essentially a theory of vicarious liability under which the owners of a 25 corporation may be held liable for harm for which the corporation is responsible where, 26 because of the corporation's utilization of the corporate form, the party harmed will not 27 be adequately compensated for its damages.” Doney v. TRW, Inc., 39 Cal. Rptr. 2d 292, 28 294 (1995) (citing Mesler v. Bragg Mgmt. Co., 702 P.2d 601, 606, 608–09 (Cal. 1985)). 1 “A parent corporation may be deemed the ‘alter ego’ of its subsidiary corporation only if 2 there is ‘such unity of interest and ownership that the separate personalities of the 3 subsidiary and the parent] no longer exist’ and it appears that ‘if the acts are treated as 4 those of the subsidiary alone, an inequitable result will follow.’” Id. at 293 (quoting 5 Mesler, 702 P.2d at 606). 6 On the other hand, in California an agency is either actual or ostensible. Cal. Civ. 7 Code § 2298. An agency is actual when “the agent is really employed by the principal,” 8 and ostensible when “the principal intentionally, or by want of ordinary care, causes a 9 third person to believe another to be his agent who is not really employed by him.” Id. at 10 §§ 2299, 3000. Actual agency arises when “the principal's conduct causes the agent 11 reasonably to believe that the principal consents to the agent's act on behalf of the 12 principal.” Rogers v. Roseville SH, LLC, 290 Cal. Rptr. 3d 760, 767 (2022) (citing 13 Tomerlin v. Canadian Indemnity Co., 394 P.2d 571, 574 (Cal. 1964)). 14 On the issue of CHMA’s potential liability, or lack thereof, the moving Cross- 15 Defendants met their initial burden of production. See Fairbank v. Wunderman Cato 16 Johnson, 212 F.3d 528, 532 (9th Cir. 2000) (“Under the federal standard a moving 17 defendant may shift the burden of producing evidence to the nonmoving plaintiff merely 18 by ‘showing’—that is, pointing out through argument—the absence of evidence to 19 support plaintiff's claim.”). But the County put forth evidence that raises a genuine issue 20 of material fact by citing to the contractual agreement between Tri-City Medical Center 21 and the County. The contract is evidence of a potential alter ego or agency relationship 22 between CHMA and CCMG. To determine the existence of either type of relationship 23 the Court must engage in a fact-specific analysis that looks to, for example, the 24 personalities and treatment of the two separate entities, or the reasonable beliefs of 25 involved parties. The intricacies of the relationship between CHMA and CCMG remain 26 questions of fact that prevent summary adjudication on CHMA’s potential liability. 27 28 1 |} VI. CONCLUSION 2 For the reasons stated above, the County’s motion for summary adjudication of its 3 || crossclaim against Liberty for contractual indemnification, (ECF No. 175), is 4 ||GRANTED insofar as Liberty breached its contractual duty to defend, entitling the 5 || County to reimbursement for attorneys’ fees and costs the County has incurred and incurs 6 ||in the future in defending Ms. Garot’s lawsuit and prosecuting its crossclaim against 7 || Liberty. Cross-Defendants’ motions for summary adjudication on the County’s cross- 8 || complaint, (ECF Nos. 168, 172), are DENIED. Defendants’ motions for summary 9 || adjudication on Ms. Garot’s claims, (ECF Nos. 165, 171), are DENIED. 10 IT IS SO ORDERED. 11 12 Dated: March 30, 2023 pee ep? 14 H . James Lorenz, 15 United States District Judge

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