Ivan Gutzalenko, et al. v. City of Richmond, et al.

• Court: District Court, N.D. California
• Decided: November 25, 2025
• Docket: 3:22-cv-02130
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IVAN GUTZALENKO, et al., Case No. 3:22-CV-02130

8 Plaintiffs, ORDER RE APPLICABILITY OF 9 v. MICRA

10 CITY OF RICHMOND, et al., Docket No. 116 11 Defendants.

12 I. INTRODUCTION 13 This order concerns the applicability of the Medical Injury Compensation Reform Act 14 (“MICRA”) to Plaintiffs’ assault and medical battery claim against Defendants American Medical 15 Response West (“AMR West”) and paramedic Damon Richardson (collectively, the “Medical 16 Defendants”). 17 California Civil Code section 3333.2 (“section 3333.2”) sets a cap on the total amount of 18 noneconomic damages a party can recover in suits against healthcare providers “based on 19 professional negligence.” Cal. Civ. Code § 3333.2. 20 Plaintiffs allege that MICRA’s cap on noneconomic damages is inapplicable because Mr. 21 Richardson’s actions constituted an intentional tort. Plaintiffs’ Brief on Applicability of MICRA, 22 at 3 (Dkt. 120). They argue that, because their claim is one for assault and battery and not 23 negligence, MICRA is wholly inapplicable. Id. at 7. In addition, Plaintiffs contend that MICRA’s 24 cap on noneconomic damages does not apply to settlement figures, and thus they could potentially 25 recover more than MICRA’s cap during settlement. Id. Finally, in the alternative, Plaintiffs assert 26 that, even if MICRA were applicable, they could recover an amount up to the MICRA cap for 27 1 each of the survival and wrongful death claims, thereby doubling the cap. Id. at 8.1 2 In opposition, Medical Defendants argue that MICRA applies because the alleged assault 3 and battery is “inextricably intertwined” with professional negligence. Medical Defendants’ Brief 4 on Applicability of MICRA, at 9 (Dkt. 121). Because Mr. Richardson acted within the scope of 5 his paramedic license, Medical Defendants allege that Plaintiffs’ assault and battery claims are 6 nevertheless based on a professional negligence cause of action. Id. at 6–7. Thus, Medical 7 Defendants argue that MICRA applies, and Plaintiffs’ total noneconomic damages must be 8 capped. 9 For the reasons explained below, the Court concludes that MICRA applies because 10 Plaintiffs’ remaining claims against Medical Defendants are based on professional negligence. 11 Accordingly, should a jury find the elements of assault and battery met, the MICRA damages cap 12 would apply. Moreover, the Court finds that the current version of section 3333.2 governs and 13 that the section 3333.2 cap does not apply to settlement figures. Finally, Plaintiffs may recover up 14 to $500,000 in noneconomic damages for the wrongful death claim and an additional $500,000 for 15 the survival claim. 16 II. BACKGROUND 17 A. Factual Background 18 On March 10, 2021, a Richmond police officer responded to a call for service about a man 19 causing a disturbance in a furniture store on San Pablo Avenue in Richmond, California. See Joint 20 Statement of Undisputed Facts, at 2 (Dkt. 97). When the police officer arrived at the scene, he 21 encountered Mr. Gutzalenko, the decedent. Id. Mr. Gutzalenko needed medical aid and was 22 “possibly intoxicated or experiencing a medical emergency.” Id. Specifically, Mr. Gutzalenko 23 had a dark purple mark on his forehead, was bleeding profusely from one of his hands, and had 24 difficulty focusing on and communicating with the police officer. Id. Mr. Gutzalenko was also 25 having a hard time breathing. See Second Amended Complaint (“SAC”) ¶ 21 (Dkt. 49); Medical 26

27 1 Plaintiffs claim they are entitled to noneconomic damages for both the wrongful death claim, to 1 Defendants’ Motion for Summary Judgment (“MSJ”), at 6 (Dkt. 99). The officers asked Mr. 2 Gutzalenko about what was wrong and attempted to support his breathing. See SAC ¶ 21; Medical 3 Defendants’ MSJ, at 6. 4 Medical Defendants, AMR West and the paramedic Mr. Richardson, arrived in an 5 ambulance and attempted to bandage Mr. Gutzalenko’s hands. SAC ¶ 22; Medical Defendants’ 6 MSJ, at 7. Mr. Gutzalenko became agitated and tried to keep his hands away. SAC ¶ 22; Medical 7 Defendants’ MSJ, at 7. After Mr. Gutzalenko began to resist, the police officers attempted to 8 handcuff him. SAC ¶ 22; see Medical Defendants’ MSJ, at 7. During this struggle, Plaintiffs 9 allege that Officer Tran applied his knee to Mr. Gutzalenko’s back while he was in a prone 10 position. SAC ¶ 22. By the time the handcuffs were placed on Mr. Gutzalenko, Plaintiffs claim 11 that he had become non-responsive and no longer resistive. Id. After Mr. Gutzalenko was 12 handcuffed on the ground, Defendant Mr. Richardson injected Mr. Gutzalenko with Versed, a 13 chemical restraint. Id. ¶ 23; Reply ISO Medical Defendants’ MSJ, at 4 (Dkt. 104). At this 14 juncture, there is no dispute that Mr. Richardson administered the chemical restraint for safety 15 reasons, rather than to restrain Mr. Gutzalenko in a law enforcement capacity; he injected Mr. 16 Gutzalenko to protect himself and others in the ambulance during transport of Mr. Gutzalenko to 17 the hospital. SJ Order, at 23. Plaintiffs claim that Mr. Richardson did not “aspirate” the syringe 18 when he administered the Versed to ensure it was not in the vein. SAC ¶ 23. Plaintiffs allege that 19 Mr. Gutzalenko stopped breathing within 90 seconds of the Versed administration. Id.; see also 20 Medical Defendants’ Brief on Applicability of MICRA, at 9. Mr. Gutzalenko was pronounced 21 dead after he was taken to Summit Hospital in Oakland. SAC ¶ 23; Medical Defendants’ MSJ, at 22 8–9. An autopsy determined the cause of death was prone restraint asphyxia and cardiac arrest 23 while under the influence of methamphetamine. SAC ¶ 24; Medical Defendants’ MSJ, at 9. 24 B. Procedural History 25 Plaintiffs are family members of the decedent. Plaintiffs brought this action alleging civil 26 rights violations, medical negligence, and wrongful death, among other claims, against the City of 27 Richmond, its police department chief, and police officers Tom Tran, Mark Hall, and Cedric 1 against the ambulance company AMR West and its paramedic Damon Richardson who medically 2 intervened and potentially contributed to Mr. Gutzalenko’s death. 3 Plaintiffs filed their original Complaint on April 4, 2022 and First Amended Complaint 4 (“FAC”) on June 22, 2023. Original Complaint (Dkt. 1); FAC (Dkt. 42). Plaintiffs filed the 5 operative SAC on August 9, 2023, which includes six federal and state causes of action. SAC. 6 The City and Medical Defendants filed motions for summary judgment on Counts One 7 (unreasonable seizure and excessive force), Two (municipal liability), Five (assault and battery), 8 and Six (false arrest and false imprisonment). City Defendants’ MSJ (Dkt. 89); Medical 9 Defendants’ MSJ. The Court granted summary judgment in part and denied it in part. Summary 10 Judgment Order (“SJ Order”) (Dkt. 108). As to the Medical Defendants, the Court granted 11 summary judgment on Counts One, Two, and Six. Id. at 22–23, 25–26. The Court only denied 12 summary judgment on Count Five (assault and battery). Id. at 25. Accordingly, the only live 13 claim before the Court against Medical Defendants is for assault and battery.2 No causes of action 14 remain alleging negligence or medical malpractice. 15 C. Statutory Framework 16 MICRA was enacted in 1975 to address a “crisis regarding the availability of medical 17 malpractice insurance” in California. Reigelsperger v. Siller, 40 Cal. 4th 574, 577 (Cal. 2007). 18 Insurers warned that the cost of providing medical malpractice coverage had become 19 unsustainably high, prompting some carriers to stop issuing new policies and others to raise 20 premiums to “skyrocketing” levels. See Am. Bank & Tr. Co. v. Cmty. Hosp., 36 Cal. 3d 359, 371 21 (Cal. 1984). Consequently, many doctors purportedly stopped conducting higher-risk procedures 22 or practiced without malpractice insurance. Id. As a result, certain medical care was not 23 adequately available, and patients faced the risk of receiving judgments that could not be enforced 24 against doctors without malpractice insurance. Id. 25

26 2 Medical Defendants’ assertion that this Court granted summary judgment for all claims against Medical Defendants except for Count Five against Mr. Richardson is incorrect. This Court denied 27 summary judgment on Count Five for both Medical Defendants: Mr. Richardson and AMR West. 1 Recognizing the relationship between medical malpractice litigation costs and the 2 continued availability of adequate medical care, the California State Legislature enacted MICRA, 3 which “includes a variety of provisions all of which are calculated to reduce the cost of insurance 4 by limiting the amount and timing of recovery in cases of professional negligence.” W. Steamship 5 Lines, Inc. v. San Pedro Peninsula Hosp., 8 Cal. 4th 100, 111 (Cal. 1994). California Civil Code 6 section 3333.2 is one of those provisions. Lopez v. Ledesma, 12 Cal. 5th 848, 856 (Cal. 2022). 7 As noneconomic damages normally comprise a large portion of total damage recoveries 8 and thus insureds’ expenses, the section 3333.2 cap on noneconomic damages is an “integral” part 9 of MICRA. Perry v. Shaw, 88 Cal. App. 4th 658, 668 (Cal. Ct. App. 2001). Initially, the statute 10 set a cap on noneconomic damages at $250,000. Cal. Civ. Code § 3333.2(b) (amended January 1, 11 2023). The statute was subsequently revised, effective January 1, 2023. Cal. Civ. Code § 12 3333.2(g) (effective January 1, 2023). The amended statute raised the ceiling on noneconomic 13 damages to $500,000 and created a mechanism by which the ceiling would increase by $50,000 14 each year in actions for wrongful death, up to a cap of $1,000,000. Id. § 3333.2(c), (g). 15 Although the parties dispute whether the pre-January 1, 2023 or current version of MICRA 16 applies in the instant case, both iterations of MICRA include the same essential elements. Section 17 3333.2 reads, “In any action for injury against a health care provider [or health care institution] 18 based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic 19 losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and 20 other nonpecuniary damage [subject to the limitations in this section].” Cal. Civ. Code § 21 3333.2(a) (emphasis added) (noting new language from the current statute in brackets). The 22 current version adds language explicitly expanding coverage to actions involving health care 23 institutions but otherwise retains the same essential elements. See id. However, the current 24 version also made several substantive changes to the damage caps. The pre-January 1, 2023 25 version capped noneconomic damages at $250,000. Cal. Civ. Code § 3333.2(b) (amended January 26 1, 2023). In contrast, the current version sets the noneconomic damages for wrongful death at 27 $500,000 with the cap increasing by $50,000 each year. Cal. Civ. Code § 3333.2(c), (g) (current 1 Under both versions of MICRA, whether the statute should apply in a given instance turns 2 on the definition of “professional negligence.” MICRA defines professional negligence as:

3 [A] negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the 4 proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the 5 provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital. 6 Cal. Civ. Code § 3333.2(c)(2) (pre-January 1, 2023 version). 7 III. LEGAL STANDARD 8 The parties ask the Court to clarify the applicability of MICRA to Plaintiffs’ claim for 9 assault and medical battery. The Court treats this request as a Rule 56 motion for partial summary 10 judgment on the applicability of MICRA’s cap on noneconomic damages to Plaintiffs’ claim for 11 assault and medical battery. 12 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 13 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and 14 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 15 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving 16 party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). “The mere existence of 17 a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 18 reasonably find for the [nonmoving party].” Id. at 252. At the summary judgment stage, evidence 19 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 20 are to be drawn in the nonmovant’s favor. See id. at 255. 21 Here, the parties stipulated to briefing the issue, and the Court ordered briefing. Since 22 there is not a single moving party, the Court views the facts in favor of the Plaintiffs because a 23 finding of the applicability of MICRA could limit their recovery upon the requisite showing. 24 IV. DISCUSSION 25 A. The Current Version of MICRA Applies 26 MICRA was amended in 2023. The parties dispute which version of MICRA applies. 27 This question is relevant because it determines the total amount of damages recoverable. As noted 1 above, the pre-2023 version of MICRA limited noneconomic damages to a maximum of $250,000 2 whereas the current version increased the cap to $500,000. 3 According to the current version of section 3333.2: “This section shall be deemed effective 4 as of, and shall apply to all cases filed . . . on or after, January 1, 2023.” Cal. Civ. Code § 5 3333.2(g) (emphasis added). Under California law, “[a] civil action is commenced by filing a 6 complaint with the court.” Cal. Civ. Proc. Code § 411.10. For electronic filing, “a document is 7 ‘officially filed’ only once it undergoes processing, review, and entry into the court’s records.” 8 Martinez v. Airbnb, Inc., 691 F. Supp. 3d 1124, 1128 (N.D. Cal. 2023) (citing Cal. Civ. Proc. 9 Code sections 1010.6(a)(1)(D) and 1010.6(b)(3)). Plaintiffs assert that the post-2023 version of 10 the statute applies because their SAC was filed on August 9, 2023. See Plaintiffs’ Brief on 11 Applicability of MICRA, at 2. Medical Defendants assert that the suit was filed on April 4, 2022 12 — the date of the original Complaint — and that the pre-2023 version of the statute thus applies. 13 Medical Defendants’ Response to MICRA Briefing, at 1 (Dkt. 123). 14 On April 4, 2022, the Clerk accepted the original Complaint and entered it into the court’s 15 records. Original Complaint. While the original Complaint included allegations against the City 16 Defendants, it did not allege the faulty administration of Versed or name the Medical Defendants. 17 See id. It was not until Plaintiffs filed the FAC on June 22, 2023, that they alleged faulty 18 administration of Versed and named the Medical Defendants. FAC. Indeed, this Court earlier 19 held that the medical negligence claim against Medical Defendants was time barred, implicitly 20 finding that the claim did not “relate back” to the filing of the original Complaint. See MTD 21 Order, at 10–11; Woo v. Superior Ct., 75 Cal. App. 4th 169, 176 (Cal. Ct. App. 1999) (holding in 22 the statute of limitations context that “[t]he general rule is that an amended complaint that adds a 23 new defendant does not relate back to the date of filing the original complaint and the statute of 24 limitations is applied as of the date the amended complaint is filed, not the date the original 25 complaint is filed.”). Thus, the case against Medical Defendants was first “filed” on the date of 26 the FAC. 27 Although Plaintiffs filed the operative SAC on August 9, 2023, the amendment did not 1 Compare FAC, with SAC. Accordingly, the case was first filed against Medical Defendants on 2 June 22, 2023, the date of the FAC. 3 Since the case was filed “on or after, January 1, 2023,” the current version of MICRA 4 applies. See Cal. Civ. Code § 3333.2(g). Further, as the case was filed on June 22, 2023 and 5 before January 1, 2024, the statutory cap had not yet increased. See id. Therefore, should 6 Plaintiffs prove their case, they may recover up to the statutory cap of $500,000 for noneconomic 7 damages. See id. 8 B. The MICRA Cap on Noneconomic Damages Applies 9 Although Count Five against Medical Defendants is for assault and battery, an intentional 10 tort, the action against Medical Defendants is based on professional negligence and thus falls 11 under MICRA. Specifically, Plaintiffs’ claim against Medical Defendants hinges on acts or 12 omissions by Mr. Richardson that failed to meet applicable protocol or the standard of care. 13 Because Plaintiffs’ claim for assault and battery is inextricably intertwined with alleged acts 14 constituting professional negligence, MICRA’s cap on noneconomic damages applies to the 15 circumstances presented here. 16 1. The Alleged Wrongful Conduct Falls Under MICRA’s Definition of “Professional 17 Negligence” 18 Section 3333.2 applies to actions based on “professional negligence.” Cal. Civ. Code § 19 3333.2. “The focus of the court’s analysis must be on ‘the nature or gravamen of the claim, not 20 the label or form of action the plaintiff selects.’” Burchell v. Fac. Physicians & Surgeons, 54 Cal. 21 App. 5th 515, 523 (Cal. Ct. App. 2020) (quoting Larson v. UHS of Rancho Springs, Inc., 230 Cal. 22 App. 4th 336, 347 (Cal. Ct. App. 2014)). 23 Professional negligence includes four elements: (1) “a negligent act or omission to act by a 24 health care provider in the rendering of professional services,” (2) “which act or omission is the 25 proximate cause of injury or wrongful death,” (3) “provided that such services are within the scope 26 of services for which the provider is licensed,” and (4) “which are not within any restriction 27 imposed by the licensing agency or licensed hospital.” Id. § 3333.2(c)(2); see Flores v. 1 negligence can only arise from actions where the medical provider acts with the purpose of 2 providing medical care. So v. Shin, 212 Cal. App. 4th 652, 667 (Cal. Ct. App. 2013). Tortious 3 actions taken for non-medical care reasons are not deemed professional negligence. Id. 4 The parties dispute whether administering Versed to Mr. Gutzalenko under the factual 5 circumstances presented here meets the first and third elements of “professional negligence.” 6 Specifically, they dispute whether Mr. Richardson’s actions constituted a negligent act in the 7 rendering of professional services and whether the administration of Versed was within the scope 8 of services for which Mr. Richardson was licensed. 9 a. Mr. Richardson Administered Versed in the Rendering of Professional 10 Services 11 The parties dispute whether the first element of “professional negligence” is met: whether 12 Mr. Richardson’s actions constituted “a negligent act [] by a health care provider in the rendering 13 of professional services.” See Cal. Civ. Code § 3333.2. The parties specifically dispute whether 14 injecting Mr. Gutzalenko with Versed was an action performed “in the rendering of professional 15 services.” See Plaintiffs’ Response to MICRA Briefing, at 2 (Dkt. 122); Medical Defendants’ 16 Brief on Applicability of MICRA, at 8. 17 “Where the plaintiff’s claim is premised on the violation of a professional obligation owed 18 in the rendering of a patient’s medical care, treatment, or diagnoses, the claim sounds in 19 professional negligence.” Gutierrez v. Tostado, 18 Cal. 5th 222, 238 (Cal. 2025). Courts interpret 20 “in the rendering of professional services” broadly. See, e.g., Flores, 63 Cal. 4th at 89 (finding 21 professional negligence when patient’s bed rail collapsed after doctor ordered the rails raised); 22 Mitchell v. Los Robles Reg’l Med. Ctr., 71 Cal. App. 5th 291, 296–99 (Cal. Ct. App. 2021) 23 (finding professional negligence when plaintiff fell in emergency room while accompanied by 24 husband after nurse assessed that she could use bathroom without hospital staff assistance). 25 Plaintiffs argue that “professional services” is limited to “medical diagnosis and treatment 26 of patients” and that Mr. Richardson’s conduct does not fit this definition. Plaintiffs’ Brief on 27 Applicability of MICRA, at 3 (quoting Flores, 63 Cal. 4th at 85). Instead, Plaintiffs contend that 1 provide emergency medical treatment. Id. at 5. Specifically, Plaintiffs allege that Mr. Richardson 2 injected the Versed to protect himself during transport, rather than to provide emergency medical 3 care. Id. at 5–6.3 4 Plaintiffs cite So v. Shin for the proposition that “professional negligence is only that 5 negligent conduct engaged in for the purpose of . . . delivering health care to a patient.” 212 Cal. 6 App. 4th at 666. In that case, a patient awoke during surgery and, later in the recovery room, 7 questioned the anesthesiologist about having regained consciousness mid-procedure. Id. at 657. 8 In response, the anesthesiologist became angry and waved a container of the patient’s blood and 9 tissue at the patient. Id. The anesthesiologist later returned and begged the patient not to report 10 the incident. Id. at 657–58. The court held that the anesthesiologist’s post-operation conduct was 11 not committed for the purpose of rendering medical care to the patient, since her goal was solely to 12 persuade the patient not to report the incident and preserve her professional reputation. See id. at 13 667–68. Therefore, the MICRA limitation did not apply. Id. at 667. 14 Medical Defendants correctly respond that the injection was part of the provision of 15 medical care. Medical Defendants’ Brief on Applicability of MICRA, at 8. Medical Defendants 16 highlight that an officer said that Mr. Gutzalenko was “faking like he was unconscious” and that 17 Mr. Gutzalenko would not be handcuffed while in the ambulance. See id. at 6, 8–9; Opp. To MSJ, 18 at 4.4 Consequently, Mr. Richardson determined that some additional restraint was necessary in 19 3 Plaintiffs initially contended that Mr. Richardson acted “in a law enforcement manner by 20 administering Versed.” SAC ¶ 45. However, following the Court’s order that “even if Mr. Richardson had functioned to facilitate a law enforcement purpose in injecting the decedent . . . 21 there is no question that he was administering a medical procedure and employed his medical training in doing so,” Plaintiffs appear to drop the contention on questions of negligence and 22 battery, apart from the assertion that Mr. Richardson was acting under the color of law. Motion to Dismiss Order (“MTD Order”), at 9 (Dkt. 71); see Response to MTD, at 3 (Dkt. 57); Opp. to MSJ, 23 at 2, 11–12, 20–21 (Dkt. 103). However, the Court disposed of that argument when it granted summary judgment for the excessive force section 1983 claim against Mr. Richardson, finding that 24 he “was not acting under color of law” because he “admitted that he administered the chemical restraint for safety reasons, rather than to restrain Mr. Gutzalenko in a law enforcement 25 capacity.” SJ Order, at 23. “Specifically, Mr. Richardson injected Mr. Gutzalenko to protect himself and others in the ambulance.” Id. Further, “There is no evidence that Mr. Richardson 26 administered Versed in order to assist the Officers in subduing or handcuffing Mr. Gutzalenko” as he “was already cuffed and appeared non-responsive when Mr. Richardson injected him.” Id. at 27 24 (citations omitted). 1 order to safely transport Mr. Gutzalenko to the hospital (without presenting a danger to the 2 transporting personnel, including Mr. Richardson), and thus the injection was in the furtherance of 3 providing medical care to Mr. Gutzalenko. 4 b. The Administration of Versed was Within the Scope of Services for Which 5 Mr. Richardson was Licensed 6 Plaintiffs also contend the third element of professional negligence is not met: whether the 7 “services are within the scope of services for which the provider is licensed.” See Cal. Civ. Code 8 § 3333.2(j)(4). 9 “‘Scope of services for which the provider is licensed’ . . . is naturally understood as the 10 general range of activities encompassed by the provider’s license.” Lopez v. Ledesma, 12 Cal. 5th 11 848, 857 (Cal. 2022). For example, a psychiatrist is licensed to perform psychiatric care. Id.; see 12 Waters v. Bourhis, 40 Cal. 3d 424, 436 (Cal. 1985) (en banc). In contrast, “when a psychologist 13 performs heart surgery,” they act outside the scope of their license. Waters, 40 Cal. 3d at 436. 14 Plaintiffs allege that Mr. Richardson acted outside the scope of his license because he (1) 15 did not “monitor, stabilize, or improve” Mr. Gutzalenko’s medical condition prior to administering 16 the Versed; and (2) failed to observe Mr. Gutzalenko’s respiratory status — an alleged violation of 17 “the County’s protocol governing the use of Versed.” Plaintiffs’ Response to MICRA Briefing, at 18 3–4. 19 This Court has previously ruled: “there is no question that [Mr. Richardson] was 20 administering a medical procedure and employed his medical training in doing so.” Motion to 21 Dismiss Order (“MTD Order”), at 9 (Dkt. 71). This suggests that Mr. Richardson acted within the 22 scope of his paramedic license. Additionally, the claims asserted herein allege a breach of the 23 standard of care, rather than a deviation from the general scope of services rendered by a licensed 24 paramedic. For example, Plaintiffs’ claims are based in part on violations of “the County’s 25 protocol governing the use of Versed.” Id. at 3. This appears to reference the Contra Costa 26 emergency medical services (EMS) policies and treatment guidelines, including the Contra Costa 27 1 Prehospital Care Manual. See id.; Herrington Rule 26 Report, at 4–5 (Dkt. 103, Ex. 9). Protocols 2 regarding medical procedures to be implemented in particular situations “have a direct bearing on 3 the question of negligence even though they do not themselves establish the standard of prudent 4 conduct.” Aquino v. Cal. Bd. of Registered Nursing, No. E080913, 2024 WL 3822357, at *4 (Cal. 5 Ct. App. Aug. 15, 2024) (internal quotation marks omitted) (quoting Tucker v. Lombardo, 47 Cal. 6 2d 457, 464 (Cal. 1956)); see also Hartford Acc. & Indem. Co. v. All Am. Nut Co., 220 Cal. App. 7 2d 545, 561 (Cal. Ct. App. 1963) (“Custom is competent evidence of the standard of due care in 8 an area wherein it prevails. . . . And violation of a rule of care established by a party to the 9 litigation is likewise evidence of negligence.”). Whether Mr. Richardson failed to follow Contra 10 Costa protocol does not inform whether he was licensed to administer Versed. It is undisputed 11 that he was so licensed. 12 Indeed, the fact that there was county protocol for how paramedics like Mr. Richardson 13 should administer Versed is evidence that the administration of Versed was within the scope of 14 Mr. Richardson’s license. Furthermore, Mr. Richardson was trained in the administration of 15 Versed, was carrying it in the ambulance, and had administered Versed “numerous” times in the 16 past. Richardson Deposition at 12:5–6; 15:2–6; 87:22–24 (Dkt. 99, Ex. G). 17 In light of the above factors, Mr. Richardson was acting within the scope of his duties in 18 administering a chemical restraint to a patient during a medical emergency after the arrest in an 19 effort to transport Mr. Gutzalenko to the hospital as part of the administration of medical 20 treatment. In sum, Mr. Richardson’s injection of Versed was within the scope of his license and 21 medical duties. 22 2. The Gravamen of Plaintiffs’ Claim of Assault and Battery is Based on Medical 23 Negligence 24 Count Five for Assault and Battery against Medical Defendants Richardson and AMR 25 West is pled as a claim for assault and battery — an intentional tort — but the gravamen of the 26 claim is one “based on” professional negligence. See Cal. Civ. Code § 3333.2(a). 27 Despite its express application to “negligent act[s] or omission[s] to act,” MICRA has not 1 Burchell v. Fac. Physicians & Surgeons, 54 Cal. App. 5th 515, 523 (Cal. Ct. App. 2020) 2 (“Although MICRA expressly applies to actions based on professional negligence, our Supreme 3 Court has ‘not limited application of MICRA provisions to causes of action that are based solely 4 on a negligent act or omission.’”). An intentional tort may be based on professional negligence 5 under certain circumstances. For instance, in Larson v. UHS of Rancho Springs, Inc., the court 6 found that claims for battery and intentional infliction of emotional distress were essentially based 7 on professional negligence when a doctor roughly administered anesthesia. 230 Cal. App. 4th 8 336, 340 (Cal. Ct. App. 2014). Similarly, in Denecochea v. Baland, the court found that claims 9 for assault, battery, and intentional infliction of emotional distress were essentially claims for 10 medical negligence when a paramedic and nurse restrained a patient and drew their blood, even 11 with disputed issues of consent. No. 213CV01906MCECKD, 2015 WL 6951297, at *7, *9 (E.D. 12 Cal. Nov. 10, 2015). Thus, the Court must focus on “the nature or gravamen of the claim, not the 13 label or form of action the plaintiff selects.” Burchell, 54 Cal. App. 5th at 523 (quoting Larson, 14 230 Cal. App. 4th at 347). 15 Here, the gravamen of Plaintiffs’ complaint is based on negligence. In the operative SAC, 16 Plaintiffs challenge Mr. Richardson’s decision to administer the Versed and the way he 17 administered it. See SAC ¶ 23 (“Contrary to proper medical use, RICHARDSON used Versed on 18 GUTZALENKO while Gutzalenko showed no signs of any behavioral issue or agitation. 19 RICHARDSON also failed to ‘aspirate’ the syringe prior to administering the medication.”); see 20 also id. ¶ 25 (Mr. Richardson “should have known that it was excessive and unreasonable force to 21 use the chemical restrain[t] Versed to restrain GUTZALENKO while Mr. GUTZALENKO was 22 cuffed, in the recovery position, and not resisting in any way.”). Since the court must look beyond 23 the “label or form of action the plaintiff selects,” the fact that the SAC includes a cause of action 24 for assault and battery has little bearing on the analysis. See Burchell, 54 Cal. App. 5th at 523. 25 Rather, looking to “the nature or gravamen of the claim,” the central facts in dispute are the 26 improper medical decision to administer Versed and the faulty administration of the drug. 27 Alleging that a medical professional engaged in faulty decision making about the appropriate type 1 As Plaintiffs themselves admit, the proper type of care and manner of administration are issues 2 that can be adjudged against “proper medical use” and county protocol. See SAC ¶ 23; Plaintiffs’ 3 Brief on Applicability of MICRA, at 6. Since these issues can be measured against an objective 4 standard of care, they sound in negligence. See id. 5 Further, Plaintiffs’ SAC fails to allege facts sufficient to support a claim for medical 6 battery. To do so, Plaintiffs must show that Medical Defendants performed a procedure “to which 7 the patient has not consented.” See Cobbs v. Grant, 8 Cal. 3d 229, 240 (Cal. 1972). Yet, Plaintiffs 8 do not include any allegations about lack of consent in the SAC. See SAC. Although Plaintiffs 9 later raise the issue of consent briefly in their Opposition to the Motion to Dismiss and extensively 10 in their Supplemental Briefings on the Applicability of MICRA, the issue of consent is not 11 pleaded as a factual or legal basis for any theory of liability under the SAC or any earlier variant. 12 Opp. To MTD, at 4–5; Plaintiffs’ Brief on Applicability of MICRA; Plaintiffs’ Response to 13 MICRA Briefing; see SAC; Kershaw v. Tilbury, 214 Cal. 679, 688 (Cal. 1932) (“It is of prime 14 importance to get the gravamen of the action, which is to be determined by the allegations of the 15 complaint.”). Indeed, beyond the label of the claim and the bare assertion that “[t]he actions and 16 omissions of . . . RICHARDSON . . . as set forth above constitute assault and battery,” Plaintiffs 17 do not provide information to support a claim for assault and battery against Medical Defendants 18 in the SAC. SAC ¶ 69; see generally id. Thus, Plaintiffs do not provide facts sufficient to support 19 their claim for battery as to Medical Defendants. 20 Since Plaintiffs’ allegations sound in negligence and fall short of making out a claim for 21 battery, the gravamen of Plaintiffs’ claim sounds in negligence. Accordingly, section 3333.2 22 applies. 23 C. MICRA Does Not Apply to Settlements 24 The noneconomic damages cap under section 3333.2 does not apply to settlements. Under 25 Rashidi v. Moser, “the cap imposed by section 3333.2, subdivision (b) applies only to judgments 26 awarding noneconomic damages.” 60 Cal. 4th 718, 727 (Cal. 2014) (emphasis added). 27 Accordingly, the MICRA noneconomic damages cap would not apply should the parties reach a 1 D. If MICRA is Applicable, Plaintiffs Could Recover Under Both a Wrongful Death Claim 2 and a Survival Claim 3 If MICRA’s cap applies, Plaintiffs could potentially recover under both a wrongful death 4 claim and a survival claim. Plaintiffs could thus recover up to $500,000 in noneconomic damages 5 for each of their wrongful death and survival claims, up to a total of $1,000,000 in noneconomic 6 damages. 7 Under Ng v. Superior Court, a wrongful death action brought by heirs in their individual 8 capacity and a survival action brought by decedent’s successor in interest are treated as “separate 9 and distinct claims” even when they arise from the same alleged malpractice. 108 Cal. App. 5th 10 382, 388 (Cal. Ct. App. 2025) (“Because a wrongful death claim and a survival claim — even 11 when premised on the same alleged medical malpractice — are separate and distinct claims, a 12 plaintiff suing for both claims can seek to recover two MICRA caps.”). In Ng, a widow sued in 13 both capacities: she sought damages for her own losses through a wrongful death claim brought in 14 her personal capacity and pain and suffering damages on behalf of the decedent as the decedent’s 15 successor in interest via a survival claim. Id. at 387–88. The court explained that these claims 16 compensate different harms and therefore are subject to separate MICRA caps. Id. 17 Prior to 2022, plaintiffs could not recover noneconomic damages in survival actions. Id. at 18 387. An amendment to Code of Civil Procedure section 377.34 changed this, authorizing recovery 19 for a decedent’s pre-death pain, suffering, and disfigurement in survival actions filed between 20 2022 and 2025. Id. Following the amendment, Ng clarified that once a survival action includes 21 noneconomic damages, those damages are subject to a MICRA cap separate from the heirs’ 22 wrongful death damages. Id. at 387–88. 23 Here, the case was filed on June 22, 2023, and is therefore subject to the section 377.34 24 amendment that allows recovery for a decedent’s pre-death pain, suffering, and disfigurement in 25 survival actions. See id. at 387. Additionally, the operative SAC alleges wrongful death and 26 names the individual Plaintiffs as successors in interest. See SAC ¶¶ 3–4, 29; MTD Order at 1 27 (“This case involves alleged civil rights violations, medical negligence, and wrongful death among 1 This mirrors the posture in Ng. Whether Plaintiffs may invoke a second MICRA cap, however, 2 || depends on the proof offered at trial. If Plaintiffs establish that Mr. Gutzalenko experienced pre- 3 death pain or suffering that would qualify under section 377.34, they could argue that both the 4 || wrongful death claim and the survival claim are entitled to their own MICRA caps. If they cannot 5 make such a showing, then they would receive zero damages for that claim. 6 Thus, Ng does not guarantee double recovery. Instead, it allows for the possible recovery 7 of separate caps — but only if both wrongful death and survival claims are established and include 8 || noneconomic damages of the kind authorized by the statute. 9 V. CONCLUSION 10 Mr. Richardson’s conduct meets the definition of “professional negligence” under section 11 3333.2. Although intentional torts are generally not subject to the section 3333.2 cap on 12 || noneconomic damages, see Perry, 88 Cal. App. 4th at 662, the gravamen of Plaintiffs’ assault and 5 13 battery claim is essentially a claim of medical negligence such that MICRA applies. See Larson, 14 230 Cal. App. 4th at 351-52; see also Denecochea, 2015 WL 6951297, at *7, *9. Further, the 3 15 MICRA cap on noneconomic damages does not apply to settlement awards. Finally, if Plaintiffs 16 || establish wrongful death and survival claims that include noneconomic damages, they are entitled 3 17 to separate MICRA noneconomic damages caps for the wrongful death and survival claims.

19 IT IS SO ORDERED. 20 21 Dated: November 25, 2025 22 EC 23 EDWARD M. CHEN 24 United States District Judge 25 26 27 28