Sherman v. Bryant

Decision Date19 November 2020
Docket NumberE072201
CourtCalifornia Court of Appeals Court of Appeals
PartiesROBERT SHERMAN, Plaintiff and Appellant, v. ROBERT BRYANT et al., Defendants and Respondents.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Affirmed in part and reversed in part.

Law Offices of Marvin H. Weiss and Marvin H. Weiss for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith and James C. Packer; Arias & Lockwood and Christopher D. Lockwood and John M. Porter for Defendants and Respondents.

There was substantial evidence of the following facts.

Officers of the Riverside County (County) Sheriff's Department arrested Robert Sherman for allegedly brandishing a firearm. One officer made him sit in a patrol car, in the sun, on a hot day. As a result, Sherman suffered second degree burns, blisters, dehydration, and heat exhaustion. After he had been in the car about 45 minutes, a second officer gave him some water; however, that officer shoved the water bottle into Sherman's mouth, causing him to choke, cough, and gag. The second officer then put Sherman back into the hot car, where he remained for another 15 minutes.

Before Sherman was booked, a nurse found that he had dangerously high blood pressure. A third officer therefore took him to a hospital. That officer told Sherman that he might have to wait four hours or more to be seen; however, if he refused treatment, he could be released early. Accordingly, Sherman — who was still weak, confused, and disoriented — refused treatment. Sherman was released less than an hour later.

Sherman then filed this action against the three officers and against the County, asserting causes of action for federal civil rights violations, state civil rights violations, assault and battery, intentional infliction of emotional distress, negligence, and negligent hiring, training, and supervision.

The trial court sustained a demurrer by the first officer (who had made Sherman sit in the hot car) and entered judgment in his favor. Sherman did not appeal from that judgment.

The trial court then granted the other defendants' motion for summary adjudication on all causes of action, except for two causes of action, solely as against the County. Sherman dismissed the remaining causes of action to facilitate this appeal.

Sherman now contends that the trial court erred by granting summary adjudication on almost every cause of action, as against almost every moving defendant. As to somecauses of action, against some defendants, we agree; as to others, we disagree. Hence, we will affirm in part and reverse in part.

A table showing our disposition of each cause of action as against each defendant is attached to the unpublished portion of this opinion as Attachment A.



As of August 18, 2014, Sherman was 74 years old. He wore a MedicAlert bracelet, which indicated that he had previously had a stroke.

Sherman owned and managed residential real property. On August 18, 2014 he went to one of his rental properties, in Desert Hot Springs; he had given the tenant, who had been lawfully evicted, just one hour to remove her property. While waiting, he sat in his car, in the shade of a tree.

When the hour was up, the tenant and her friends refused to leave. Three or four men approached Sherman and said, "We're going to get you, you mother fucker." Sherman was carrying a gun, for which he had a concealed carry permit. In self-defense, he drew the gun and waved it back and forth. Someone in the tenant group called the police and reported a man with a gun.

Officer Armando Munoz responded to the call. Sherman "offered no resistance, and was fully compliant with all requests posed by the officer."

Officer Munoz arrested and handcuffed Sherman. He did not look at Sherman's MedicAlert bracelet. He ordered Sherman to get into his patrol car, then put a hand on his shoulder and pushed him in.

It was about noon, in August, in the desert. The patrol car windows were up and the air conditioning was off. The outside temperature was about 100 degrees. The temperature inside the patrol car was approximately 140 degrees. As a result, Sherman suffered "second degree burns, dehydration, blisters on his upper torso and arms, swollen hands, spiked blood pressure, weakness and near complete inability to speak, and other injuries attendant [upon] severe heat exhaustion."

Sherman asked repeatedly for water; he even "scream[ed], 'I need water.'" After he had been in the patrol car for about 45 minutes, Officer Brian Taylor opened the car door. He could see that Sherman had "symptoms of heat exhaustion, including heavy sweating, . . . weakness, impaired breathing, and impaired speech."

Sherman was handcuffed. He tipped his head upward, and Officer Taylor "shoved a bottle of water down [his] mouth." Sherman admitted that he "consent[ed] to having the water bottle put in [his] mouth[.]" He drank some water, but "seconds" after the bottle was placed in his mouth, he choked, coughed, gagged, and struggled to breathe. Sherman did not recall when Officer Taylor stopped pouring the water.

Officer Taylor commented, "You can kiss your current permit goodbye." He then locked Sherman in the patrol car again, for about another 15 minutes. As he was walking away, Sherman said, "I don't feel well," but he did not know whether Officer Taylor heard him. Officer Taylor, too, never looked at Sherman's MedicAlert bracelet.

Officer Munoz transported Sherman to the Palm Desert police substation. During the trip, Sherman said he did not feel well. He tried to show Officer Munoz his MedicAlert bracelet, but Officer Munoz did not look at it. Officer Ronald Bryant2 then transported Sherman from the Palm Desert police station to the Indio jail.

At the jail, a nurse determined that Sherman had dangerously high blood pressure. He told her about his previous stroke. She had Officer Bryant transport him to a hospital emergency room to get a medical clearance before booking.

On the way there, Officer Bryant told Sherman that he might be at the hospital for four hours or more, but if he refused treatment, he could be released early. He added, "If you refuse service, . . . we can just get in and out . . . ."

At about 3:00 p.m., they arrived at the hospital. As they were walking in, Officer Bryant said, "Remember what I said about the four hours or longer?"

At the time, due to heat exhaustion, Sherman was weak, confused, and disoriented. He testified that he "reasonably understood [Officer Bryant's] admonitions to be directives." Thus, he said, "Okay, . . . I'll refuse the service." He signed a writtenacknowledgement that he was leaving against medical advice. Officer Bryant then transported him back to the jail.

The same nurse examined Sherman again and found that he still had "dangerously high" blood pressure. The supervising officer at the jail told Officer Bryant to transport Sherman back to the Palm Desert station, cite him, and release him. Thus, at 4:00 p.m., Sherman was released. After his release, he did not seek any medical care.

Sherman was charged with brandishing a firearm. (Pen. Code, § 417, subd. (a)(2).) He pleaded guilty to the lesser offense of disturbing the peace (Pen. Code § 415, subd. (2)) and was placed on probation.

Sherman made a formal complaint to the County, but it never disciplined Officers Munoz, Taylor, or Bryant for their conduct during this episode.



Sherman filed this action in 2015. The defendants, as named in the second amended complaint, included the County, Officer Munoz, Officer Taylor, and Officer Bryant. However, Officer Munoz's demurrer to the second amended complaint was sustained, without leave to amend, and the trial court entered judgment in his favor.3 Sherman did not appeal.

Sherman then filed the third amended complaint, which asserted causes of action for violation of civil rights under federal (42 U.S.C. § 1983 [section 1983]) and state law(Civ. Code, § 52.1); assault and battery; intentional infliction of emotional distress; negligence; and, solely against the County, for negligent hiring, training, and supervision.

Defendants moved for summary judgment or summary adjudication. The trial court denied the motion with respect to two causes of action against the County — for negligence, and for intentional infliction of emotional distress. Otherwise, it granted the motion. Sherman voluntarily dismissed his remaining claims, without prejudice. Accordingly, the trial court entered judgment against Sherman and in favor of defendants.



"Summary judgment is appropriate only 'where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.' [Citation.]" (Regen ts of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)

A moving defendant has the "burden" to "show[] that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that atriable issue of one or more material facts exists as to the cause of action or a defense thereto." (Ibid.)


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