De Soet v. County of Los Angeles, B201659 (Cal. App. 5/5/2009)

Decision Date05 May 2009
Docket NumberB201659.
PartiesPATRIK L. DE SOET, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

Appeal from a judgment of the Superior Court of Los Angeles County, No. BC338149, Irving S. Feffer, Judge. Affirmed.

Rehm & Rogari and Joanna Rehm for Plaintiff and Appellant.

Lawrence Beach Allen & Choi, Jin S. Choi and Scott E. Caron for Defendants and Respondents County of Los Angeles and Curt Henderson.

DOI TODD, Acting P. J.

Plaintiff and appellant Patrik L. de Soet appeals from a judgment entered in favor of defendants and respondents the County of Los Angeles, Michael A. Fishman, Curt Henderson and Terry Richardson (sometimes collectively defendants) following the trial court's sustaining a demurrer without leave to amend as to two causes of action and entering summary judgment on the remaining cause of action. Appellant's claims for false imprisonment, civil rights violations and negligence followed his arrest for alleged elder abuse (Pen. Code, § 368) and the subsequent dismissal of the charge. We conclude the trial court properly granted summary judgment on the cause of action for false imprisonment, as the undisputed evidence established probable cause for the arrest as a matter of law. The trial court also properly sustained the demurrer without leave to amend. Appellant's cause of action alleging a violation of Title 42 United States Code section 1983 was time-barred, and appellant's failure to allege the existence of a statutory duty and to comply with the Tort Claims Act (Gov. Code, § 810 et seq.) were equally fatal to his negligence claim. Accordingly, we find no basis to disturb the judgment.


Facts Leading to Elder Abuse Allegations Against Appellant.

In December 1993, appellant immigrated to the United States on a 10-year visa. In February 1994, while he was in his late thirties, he met Androneke Kerr, who was approximately 70 years old at the time and whose husband had passed away approximately one year earlier. Appellant and Kerr developed a personal relationship and he began spending a significant amount of time at her home. According to appellant, Kerr told him that her family was trying to hurt her and put her in a mental institution.

In January 1995, Kerr executed a quitclaim deed to her home in favor of appellant. According to appellant, Kerr did so to protect the house and keep it away from her children, daughters Alexia Cirino and Katina Nichols. Approximately two years later, in December 1997, Kerr executed a durable power of attorney for health care also in favor of appellant.

Throughout 1998, appellant regularly had his mail delivered to Kerr's home, was insured on her automobile insurance policy, formed a joint bank account with her and made decisions regarding her health care and nursing care. In November 1998, Kerr had a stroke. At some point during their relationship, appellant began living at Kerr's home.

Between August 1998 and April 1999, Los Angeles County Adult Protective Services (APS) received six reports of suspected elder abuse and/or negligent care by appellant relating to Kerr. These reports included an August 23, 1998 report by Kerr's sister, Ethelia Siemans, that Kerr told her she had been neglected, left alone and abused by appellant; an October 16, 1998 report by Susan Cassara of Whittier Hospital who stated that Kerr appeared thin and was bruised; a November 3, 1998 report by Joan Berry of Berryman Health Center West that Kerr appeared at the hospital bruised, dehydrated and nonresponsive; a November 17, 1998 report by Nancy Lundberg of Friendly Hills Hospital that Kerr appeared malnourished and appellant was uncooperative with the hospital staff providing nursing care for Kerr; a December 30, 1998 report by Martha Davila that appellant was angry with the medical staff, had removed Kerr from 24-hour care against medical advice and had demanded that Kerr's family be kept away from her; and an April 12, 1999 report by Dr. Maurice Vincent that appellant had refused proper medical care for Kerr and had threatened Kerr's home health care nurse with a gun.

An August 1998 report by APS social worker Armando Lopez indicated that Kerr was receiving adequate care. In January 1999, APS social worker Kelly Heyward visited Kerr after receiving the December 30, 1998 report of suspected elder abuse. At that point, although Kerr was thin and slightly dehydrated, she appeared alert and oriented, and said that appellant took wonderful care of her. Between January and April 1999, Heyward did not receive any reports about suspected elder abuse of Kerr. Nonetheless, she kept in touch with Kerr's home health care providers who stated they and Kerr were fearful of appellant.

Between April 12 and 14, 1999, Heyward spoke with a physician and nursing supervisor treating Kerr, both of whom expressed concern about appellant's refusing medical care for Kerr and threatening another individual. On April 15, 1999, Heyward, accompanied by two Los Angeles County Sheriff's Department (Sheriff's Department) deputy sheriffs, went to Kerr's home to conduct a welfare check. Kerr did not exhibit outward signs of physical violence. Kerr told Heyward that she was miserable and that, even though she was unable to walk, appellant would leave her alone for hours or days at a time, sometimes without food or water. She also told Heyward that once during the past week she had fallen when appellant was away. When appellant returned and saw Kerr on the floor, he became angry and left her on the floor to teach her a lesson; he picked her up and threw her on the bed a few hours later. Appellant denied the incident, but later conceded that Kerr had fallen. Kerr also told Heyward that she was a prisoner in her own home and that she did not want appellant controlling her life. Kerr explained that appellant had isolated her from her family. She requested that she be transported to the hospital for treatment, and the deputies called for an ambulance to take her to Placentia Linda Hospital. Kerr had no contact with appellant after April 15, 1999.

In a follow-up interview of Kerr conducted by Sheriff's Department Detective Jonna Wiltshire, Kerr stated that appellant had resided with her since 1994. In 1998, after Kerr had two strokes, appellant prevented her from obtaining adequate medical care and mistreated her while she was incapacitated. By way of example, Kerr stated that appellant would leave her alone for long periods of time, deliberately placing the telephone out of her reach and failing to leave her with food or water. She also stated that on one occasion in October 1998 appellant had grabbed her left wrist so hard that he punctured her skin and that on two occasions thereafter appellant picked her up and threw her so hard that she injured her knee.

In May 1999, Detective Wiltshire also interviewed Kerr's daughter Cirino, Heyward and Kerr's home health care physical therapist. Cirino told Wiltshire that she and her husband had been unable to visit Kerr between December 1998 and April 1999 due to criminal and civil lawsuits brought by appellant. When Cirino finally saw Kerr in April 1999, Kerr appeared emaciated and weighed only 80 pounds instead of her normal 120 to 140 pounds. Heyward informed Wiltshire about the prior reports to APS as well as her observations during her own investigation.

Thereafter, Cirino initiated conservatorship proceedings and the court appointed her as Kerr's conservator in July 1999. Cirino also initiated a civil action against appellant to regain title to Kerr's home. In view of the conservatorship and the inception of the criminal investigation, APS ceased any investigation of appellant.

The Criminal Proceedings.

In late January 2000, Sheriff's Department Detective Curt Henderson was assigned to investigate the matter. He reviewed the information obtained by the Sheriff's Department, including reports by Wiltshire and APS. In February 2000, Detective Henderson conducted his own interview of Cirino, at which point Cirino added that appellant had been responsible for Kerr's care at the time of the APS complaints and that he had convinced Kerr to obtain a restraining order against her daughters. She also stated that Kerr had approximately $38,000 in savings when she met appellant, but that she had only $1,300 as of December 1999. Detective Henderson also had a telephone conversation with appellant, during which time he explained that Kerr's family were really the abusers.

Between February 2000 and December 2001, Detective Henderson obtained several search warrants for Kerr's medical and financial records and APS notes. He learned of the power Kerr had given appellant over her affairs, confirmed that the suspected elder abuse reports occurred while appellant was caring for Kerr, considered Kerr's statements to Wiltshire and Heyward about appellant's abuse, which were corroborated by physical therapist Victoria Alexanian, and further learned that Kerr had given sums of money to appellant for unspecified reasons. On the basis of his investigation, Detective Henderson determined that there was probable cause to arrest appellant for elder abuse. He presented the matter to the Los Angeles County District Attorney's Office for filing consideration and the case was assigned to Deputy District Attorney Michael Fishman, who advised that further investigation was necessary.

In May 2002, Detective Henderson interviewed both Dr. Stephen Read, who had been retained to evaluate Kerr's capacity for the purpose of the conservatorship proceedings, and Alexanian, Kerr's former physical therapist. Dr. Read stated that he met with Kerr four to five times between May 1999 and May 2002. He noted that Kerr had been diagnosed as manic depressive with a bipolar disorder, and that her strokes in 1998 had...

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