Frausto v. Dep't of the Cal. Highway Patrol

• Decision Date: 21 August 2020
• Docket Number: A156552
• Court: California Court of Appeals Court of Appeals
• Parties: Yolanda FRAUSTO et al., Plaintiffs and Respondents, v. DEPARTMENT OF the CALIFORNIA HIGHWAY PATROL et al., Defendants and Appellants.

53 Cal.App.5th 973

267 Cal.Rptr.3d 889

Yolanda FRAUSTO et al., Plaintiffs and Respondents,

v.DEPARTMENT OF the CALIFORNIA HIGHWAY PATROL et al., Defendants and Appellants.

A156552

Court of Appeal, First District, Division 2, California.

Filed August 21, 2020

Bracamontes & Vlasak, Michael R. Bracamontes, Ryan J. Vlasak, San Francisco, for Plaintiffs and Respondents.

Attorney General of California, Xavier Becerra, Danielle F. O'Bannon, Senior Assistant Attorney General, Jeffrey R. Vincent, Supervising Deputy Attorney General, Amy W. Lo, Deputy Attorney General, for Defendants and Appellants.

Kline, P.J. John Anthony Cornejo died of a methamphetamine overdose at Highland Hospital on March 30, 2015, after having been arrested by California Highway Patrol officers during a traffic stop and observed to put in his mouth and swallow something that he insisted was gum, not drugs. Cornejo declined repeated offers of medical attention and no symptoms of drug intoxication were observed until after he had been transferred to the custody of deputy sheriffs at the county jail.

This appeal is from a jury verdict in favor of Cornejo's parents in a suit for wrongful death predicated on the negligence of the officers who took Cornejo to jail rather than to the hospital, and from the trial court's order denying a motion for judgment notwithstanding the verdict. Defendants maintain the officers had no duty to obtain a medical examination for Cornejo in the circumstances presented; that they fulfilled the scope of any duty they may have had by taking him to a jail with medical staff on site; and that their failure to take him to the hospital was not a proximate cause of his death. They further contend the trial court erred in ruling the jury could not consider Cornejo's intentional act of swallowing the methamphetamine in allocating comparative fault and in denying defendants’ motion in limine to exclude evidence and argument that the officers attempted to coerce an admission to possession of a controlled substance by conditioning medical treatment on Cornejo's admitting he swallowed a controlled substance. We affirm.

PROCEDURAL BACKGROUND

Plaintiffs Yolanda Frausto and Norman Cornejo, parents of John Anthony Cornejo, sued defendants, the California Highway Patrol (CHP) and individual CHP officers in state court for negligence, wrongful death, survival action and violation of the Tom Bane Civil Rights Act (Bane Act) ( Civ. Code, § 52.1 [interference with legal rights by threat, intimidation or coercion] ). The case was removed to federal court after the complaint was amended to include a cause of action for violation of civil rights under title 42, United States Code section 1983. The federal court apparently granted the CHP defendants’ motion for summary judgment on the federal claim and declined to exercise jurisdiction over the state claims.¹

Plaintiffs returned to state court with a complaint against the CHP and four of its officers, Michael Diehl, Zachary Trezeniewski, Cosimo Bruno and David Hazelwood, Jr. The case ultimately went to trial on the negligence claim in the fourth amended complaint, after the trial court sustained without leave to amend a demurrer to the Bane Act cause of action and granted defendants’ motion for judgment on the pleadings as to the survival action. Plaintiffs dismissed their claims against Trezeniewski during trial. The jury returned a special verdict against defendants in the amount of $827,544.00, allocating comparative fault 35 percent to Diehl, 13 percent to Bruno, 30 percent to Hazelwood, and 22 percent to Cornejo. After judgment was entered, defendants unsuccessfully moved for judgment notwithstanding the verdict. This appeal followed.

FACTUAL BACKGROUND

About 4:00 a.m. on March 29, 2015, CHP Officers Diehl and Trezeniewski stopped a car for driving with fog lights but no headlights illuminated, in violation of Vehicle Code section 24250. Diehl approached the passenger side while Trezeniewski approached the driver, who identified himself as "Norman" Cornejo. There were three passengers in the car. Checking the name and birthdate given by the driver, the officers learned he was unlicensed. Trezeniewski called for backup due to the number of people in the car. Hazelwood and Bruno were among the officers who responded to the scene. It was Bruno's third day on the job and Hazelwood was his field training officer, his first time acting in this role.

Diehl approached the driver's side and asked Cornejo to get out of the car. As Cornejo opened the car door, Diehl saw he was not wearing a left shoe and detected the odor of alcohol coming from the car. Diehl conducted a patdown search at the back of Cornejo's car, after which Cornejo moved his right hand in front of his mouth. Diehl asked Cornejo if the reason his shoe was off was that he had "put dope in his shoe." Cornejo said no and kicked his shoe toward Diehl. As he walked with Cornejo to the front passenger side of the vehicle to begin field sobriety tests, Diehl asked if Cornejo had anything in his mouth and when Cornejo started to answer, Diehl observed a "chewing motion." Cornejo said it was gum. Diehl asked Cornejo to spit out whatever was in his mouth; he denied telling Cornejo to "spit the bag out." Cornejo became very nervous, backing away from Diehl while raising his arms in front of his face and "swatting" at Diehl, then turning and starting to run. According to Diehl, Cornejo had had his back to Officers Hazelwood and Bruno, who were about 20 feet away. Diehl and other officers grabbed Cornejo and brought him to the ground as Cornejo pulled his arms and hands away and yelled that he only had gum. The officers took Cornejo into custody.

Cornejo said he had decided to swallow his gum. Diehl searched the area in case Cornejo had discarded something but did not find anything. He asked if Cornejo had swallowed any drugs, and Cornejo said it was only gum. Diehl explained to Cornejo that if he "made a mistake and swallowed drugs," Diehl "would need to call for medical staff to ensure his health would not be affected." A search of Cornejo's vehicle revealed a methamphetamine pipe and Brillo pad, which Diehl testified is commonly used by crack cocaine users.

Diehl acknowledged that during training, he was told he was required to obtain medical treatment for an arrestee if he thought it was necessary; that if he thought Cornejo had swallowed drugs, he would have an obligation to call for medical staff; that it was common for people he arrested to lie to him; and that he told the other officers on the scene he believed Cornejo had swallowed a controlled substance. Diehl's report stated, " ‘Based upon my training and experience the substance in which Cornejo had swallowed was suspected to be a controlled substance.’ "

Diehl testified that the California Highway Patrol Officer Safety Manual (CHP Manual) requires taking a person to the hospital, or calling an ambulance, when the person is in need of medical attention, even if the person is not exhibiting physical symptoms. He testified that not all drugs "require a medical call" and he would determine which required medical attention based on "signs and symptoms of potential overdose." During the approximately one hour he was at the scene, Diehl never saw Cornejo exhibit signs of being under the influence of a stimulant. Cornejo did not appear to be in need of medical attention: He had no outward signs of illness or medical distress and he said there was nothing wrong with him.

Asked, "the only way you were going to take [Cornejo] to the hospital was if he admitted that he had an illegal drug in his possession, right," Diehl replied, "[d]epending on what it was that he said he swallowed, yes." Diehl denied his intention in asking Cornejo what he swallowed was to get Cornejo to incriminate himself, and testified that he did not intend to use Cornejo's statement to support a criminal charge. Diehl testified that once a person had ingested drugs, the ingested substance would not support a criminal charge; the concern at that point would be to make sure the person was not harmed. If Cornejo had admitted ingesting methamphetamine, Diehl would not have recommended that the district attorney charge Cornejo; his main focus would have been to get Cornejo to the hospital.

Trezeniewski, who was primarily focused on the three remaining occupants in the car, did not see Cornejo put anything in his mouth or see him with a plastic baggie. While Diehl and Cornejo were on the ground, Trezeniewski heard Diehl shout "[s]pit it out" or "[g]et it out of your mouth" but did not hear him say "[s]pit out the bag." Trezeniewski agreed that if he saw an arrestee put in his or her mouth a plastic baggie he presumed contained a controlled substance, the person would need medical attention. He would not take someone to the hospital for "any" controlled substance, however, and he would rely on the person to be honest about what he or she had taken.

Hazelwood testified that he heard Diehl ask, "[w]hat did you put in your mouth" and Cornejo say, "[i]t's gum," and saw Diehl reach toward Cornejo and Cornejo "swipe" his hand toward Diehl's hand and back away. After Cornejo had been handcuffed, he talked about his shoulder being injured from a prior injury. Hazelwood asked Cornejo what he had put in his mouth and Cornejo said it was gum. Hazelwood told him, "If it's anything other than that, you need to tell us because you could die from it. It's dangerous." Cornejo repeated, "It's gum." Hazelwood did not hear anyone yell, "[s]pit out the bag," during Cornejo's arrest. He did not remember whether he heard Diehl say he believed Cornejo had swallowed a controlled substance. At the time Hazelwood put Cornejo in his patrol car, he believed Cornejo had swallowed gum. He acknowledged that he had had arrestees lie to him "occasionally."

Bruno testified that Cornejo "swatted his hand across his face and his mouth" and was chewing; Diehl told him to...