Smith v. County of Kern

• Decision Date: 17 December 1993
• Docket Number: No. F018129,F018129
• Citation: 20 Cal.App.4th 1826,25 Cal.Rptr.2d 716
• Court: California Court of Appeals Court of Appeals
• Parties: Carl Wayne SMITH et al., Plaintiffs and Appellants, v. COUNTY OF KERN, Defendant and Respondent.

Page 716

25 Cal.Rptr.2d 716

20 Cal.App.4th 1826

Carl Wayne SMITH et al., Plaintiffs and Appellants, v. COUNTY OF KERN, Defendant and Respondent.

No. F018129.

Court of Appeal, Fifth District, California.

Dec. 17, 1993.

Review Denied March 17, 1994.

[20 Cal.App.4th 1828] Robert B. Vander Noor, Bakersfield, for plaintiffs and appellants.

Clifford, Jenkins & Brown, Patrick J. Osborn and Jefferson S. Smith, Bakersfield, for defendant and respondent.

OPINION

VARTABEDIAN, Acting Presiding Justice.

Plaintiff and appellant Carl Wayne Smith appeals from a judgment entered after a demurrer to his first amended complaint was sustained without leave to amend. ¹ His action is based on his claim that, through its operation of Kern Medical Center, respondent Kern County negligently performed a laboratory test for acquired immuno-deficiency syndrome (AIDS), and that he was damaged by that negligence. On appeal, appellant contends he adequately alleged a cause of action against respondent, or, alternatively, he could amend the complaint to do so. We agree with the latter contention and reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Our factual statement summarizes the allegations contained in the first amended complaint.

On May 16, 1991, appellant was employed as a Bakersfield police officer. In the discharge of his duties, he assisted a man suffering from self-inflicted stab wounds. The man was bloody, and appellant became covered with the man's blood.

The man, identified only as John Doe, was taken to Kern Medical Center. He was committed for psychiatric evaluation pursuant to Welfare and Institutions Code section 5150. Doe told other police officers he had tried to commit suicide because he was dying from AIDS. Appellant requested that Kern Medical Center obtain a sample of Doe's blood and test it for AIDS. Kern Medical Center obtained a blood sample from Doe.

Appellant was under the care of his physician, Dr. Christiansen. On May 21, 1991, Dr. Christiansen contacted a representative of Kern Medical Center and was assured the AIDS test would be completed the next day. Eventually, however, it was determined that the Kern Medical Center laboratory had not tested the blood sample for AIDS, but instead had tested for hepatitis. By the time this mistake was discovered, the remainder of the blood sample had been discarded and Doe had been released from the hospital without a determination of his identity.

In December 1991, Doe was located again, a new blood sample was taken, and the correct test showed that Doe was infected with AIDS. The amended complaint alleges that in the period between the erroneous test and the correct test "plaintiffs and their family continued to suffer the mental anguish and all the physical and psychological problems that have naturally and proximately followed."

On March 18, 1992, the superior court sustained respondent's demurrer to the complaint, with leave to amend. On March 31, 1992, appellant filed his amended complaint. On June 18, 1992, the court sustained respondent's demurrer to the amended complaint, with prejudice. Judgment was entered on the demurrer on July 6, 1992. Appellant filed a notice of appeal July 2, 1992, purporting to appeal from the order granting the demurrer. ²

STANDARD OF REVIEW

On appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend, the appellant "has the burden to show either the demurrer was sustained erroneously or that to sustain the demurrer without leave to amend constitutes an abuse of discretion." (Stanson v. Brown (1975) 49 Cal.App.3d 812, 815, 122 Cal.Rptr. 862.) "[T]he burden of showing such abuse rests upon the appellant and the reviewing court should reverse only where there is a manifest abuse of discretion in refusing leave to amend." (Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 716, 86 Cal.Rptr. 754.) Ordinarily it is an abuse of discretion to sustain a general demurrer to a complaint without leave to amend if there is a reasonable possibility the defect in the complaint can be cured by amendment. (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 157, 101 Cal.Rptr. 880, 496 P.2d 1248; Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685, 22 Cal.Rptr.2d 807.)

In evaluating whether an appellant may be able to state a cause of action, "[a]ll allegations are taken as true even though their proof appears unlikely...." (Stanson v. Brown, supra, 49 Cal.App.3d at p. 814, 122 Cal.Rptr. 862.) "[T]he reviewing court must accept as true not only all facts alleged in the complaint ... but also ' "facts that may be implied or inferred from those expressly alleged." ' " (Estate of Lind (1989) 209 Cal.App.3d 1424, 1430, 257 Cal.Rptr. 853.)

DISCUSSION

Appellant asserts negligence based on general negligence and a statutory theory of liability. Respondent contends neither theory overcomes the rule of governmental immunity established in Government Code section 815. ³

Respondent elaborates that appellant's action is barred by statutory immunity in two distinct ways. First, respondent says it could be liable only if it breached a statutory duty to appellant, which appellant has failed to and cannot allege. Second, respondent says the acts in question were in the discharge of its public health screening function and are immune by virtue of section 855.6.

As respondent points out, one exception to the general rule of immunity is established in section 815.6: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." Appellant unsuccessfully attempts to invoke this exception in pleading his statutory theory of liability.

Appellant contends respondent had a duty to retain Doe for psychiatric evaluation for 72 hours unless he was properly released earlier based on appropriate medical recommendations. (See Welf. & Inst.Code, § 5150.) He says an early release is a breach of "the duty owed to plaintiff and the public." He concludes that as a result of the allegedly wrongful early release, Doe was not available for a second blood sample after the first sample was erroneously discarded.

This theory of liability is factually and legally insupportable. As a factual matter, the complaint alleges respondent's employees did not discover their error until May 22, 1991, which is significantly more than 72 hours after May 16.

As a legal matter, Welfare and Institutions Code section 5150 is designed to protect against injury to the committed individual and the public as a result of the individual's mental condition. It is not designed to quarantine the individual for diagnosis of a contagious disease. Accordingly, neither the risk nor the alleged injury meets the requirements of section 815.6.

Respondent contends section 815.6 is the only potentially applicable exception to the immunity conferred by section 815. This contention ignores section 815.2, which provides that a public entity will be liable for ordinary negligence of its employees acting within the scope of their employment, unless the employee is immune from liability. ⁴ Section 820, subdivision (a), provides that, except as otherwise provided by statute, "a public employee is liable for injury caused by his act or omission to the same extent as a private person." (See generally 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, §§ 150, 242, pp. 231-232, 325-326.)

With these basic principles in mind, we turn to the primary issue on this appeal, appellant's attempt to state a cause of action for general negligence. Reading the amended complaint liberally, and inferring facts reasonably suggested by the overall context of the complaint, we conclude that appellant could probably allege the following:

In order to facilitate diagnosis and treatment of appellant for possible exposure to the AIDS virus, appellant or his agent requested that employees of Kern Medical Center obtain a blood sample from Doe and determine whether Doe suffered from AIDS. One or more employees of Kern Medical Center, acting within the scope of their employment, agreed to obtain the blood sample and undertake the necessary testing in order to facilitate appellant's diagnosis and treatment. In furtherance of that agreement, an employee of Kern Medical Center obtained a sample of Doe's blood. One or more employees of Kern Medical Center, acting within the scope of their employment, directed that the blood sample be tested for AIDS. Pursuant to such directions, one or more laboratory employees of Kern Medical Center, acting within the scope of their employment, negligently tested the blood for hepatitis instead of AIDS and negligently discarded the remaining unused blood sample.

Although the first amended complaint does not expressly allege all of the relationships set forth in the preceding paragraph, the overall thrust of the amended complaint makes it reasonably possible appellant could make these allegations if given a further opportunity to amend the complaint. These allegations are sufficient to form the basis for a negligence action under sections 820 and 815.2, in the absence of some immunity applicable to Kern Medical Center's employees. (See, e.g., Bohrer v. County of San Diego (1980) 104 Cal.App.3d 155, 162, 163 Cal.Rptr. 419.)

Respondent does not contend that the negligent failure to perform a laboratory test is immune as an exercise of discretion pursuant to section 820.2. ⁵ Even if the initial agreement to perform the test involved an exercise of discretion, the actual performance of the scientific test was not an immune exercise of discretion. (See McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261, 74 Cal.Rptr. 389, 449...