Starr v. Ezell
| Decision Date | 15 September 2017 |
| Docket Number | D071116 |
| Court | California Court of Appeals Court of Appeals |
| Parties | TATYANA STARR, Plaintiff and Appellant, v. MICHAEL EZELL et al., Defendant and Respondent. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2015-00030002-CU-MM-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed.
Suppa, Trucchi and Henein and Teresa Trucchi for Plaintiff and Appellant.
Cole Pedroza, E. Todd Chayet and Kenneth R. Pedroza; Robert A. Cosgrove & Associates and Robert A. Cosgrove for Defendants and Respondents.
Tatyana Starr, as the successor in interest to her deceased sister, Elena Serebryakova, appeals a judgment entered after the trial court sustained without leave to amend the demurrer brought by defendants Palomar Health and one of its nurses, Michael Ezell (together, Respondents). Serebryakova sued Palomar Health and members of its staff for placing a Welfare and Institutions Code1 section 5150 psychiatric hold on her when she voluntarily reported to a Palomar Health emergency room with suicidal ideations.2 The psychiatric hold triggered a statutory firearm restriction and a workplace fitness-for-duty evaluation that impacted Serebryakova's employment as a Customs and Border Protection officer. Serebryakova alleges Respondents lacked probable cause to place her on an involuntary section 5150 hold because she voluntarily sought psychiatric care. The trial court sustained Respondents' demurrer on Government Code immunity grounds. We affirm.
As of 2014, Serebryakova had been employed as a Customs and Border Protection officer (or in a similar role for a predecessor agency) for about 19 years. Her job duties required that she carry a firearm, though she had never pulled or discharged her firearm in the line of duty. In late 2012 or early 2013, she began having conflicts with a newsupervisor, which caused Serebryakova to experience significant stress and anxiety over possibly losing her job.
In September 2014, Serebryakova consulted with her treating psychiatrist, Dr. Nicodemus Garcia, to whom "she expressed a thought of overdosing on her medications to obtain relief from the stress and anxiety caused by the situation at her employment." Dr. Garcia tried to find a room for Serebryakova at Sharp Mesa Vista Hospital, but upon learning none were available, recommended to Serebryakova that she report to the emergency room at Palomar Health's Pomerado Hospital.
Serebryakova "reported voluntarily" to the Pomerado Hospital emergency room, where she sought "treatment voluntarily" and "expressed a willingness to be admitted to the hospital." Defendant Michael Ezell, the psychiatric liaison nurse on duty, advised Serebryakova "that he would need to place a '5150 hold' in order to admit [her] for treatment." Serebryakova alleges she was not informed and did not understand what a "5150 hold" was, or that it would result in a restriction on her ability to possess firearms.4 Defendant John Anshus, M.D. (who is not a party to this appeal) signed Serebryakova's section 5150 application, whereupon she was detained.
Serebryakova was transferred to PMC Mental Health Service Department, where she "was voluntarily admitted," evaluated, and treated. The record does not indicate thedate or circumstances under which Serebryakova was discharged, but the operative pleading alleges she "thereafter received treatment at Sharp Mesa Vista Hospital" and that she "voluntarily completed all of the outpatient treatment recommended by her physicians."
Palomar allegedly was aware it lacked probable cause to impose a section 5150 hold on a patient who, like Serebryakova, "voluntarily reports to the hospital and consents to treatment." However, Palomar allegedly placed a section 5150 hold on Serebryakova, "in part," "for the improper purpose of obtaining insurance benefits and/or eligibility for admission and not because there was probabl[e] cause for imposing an involuntary detention under [section] 5150 as her admission was voluntary."
The section 5150 hold subjected Serebryakova to a statutory firearm restriction (which was inconsistent with her job duties) and a " 'Fitness for Duty' " evaluation at her employment. Serebryakova unsuccessfully challenged the firearm restriction in the superior court, but our court reversed, finding the People had not met their burden of maintaining the firearm restriction. (See People v. Serebryakova (Mar. 22, 2016, D068006) [nonpub. opn.] (Serebryakova I).)5 Serebryakova died of a sudden cardiac event the day before the opinion in Serebryakova I was filed.
The fitness evaluation remained unresolved when Serebryakova died. However, in a psychiatric report prepared in connection with it, Dr. Dominick Addario opined Serebryakova "at no time warranted a [section] 5150 hold" because those "are reserved for individuals who have absence of insight into their difficulties and are essentially refusing treatment," whereas "Serebryakova was clearly voluntary, accepting and willing" to receive treatment. Dr. Addario characterized Serebryakova's section 5150 hold as "a significant administrative misjudgment on the part of staff at Pomerado Hospital . . . because [she] had passive suicidal ideation, even though she was fully compliant and voluntary." This led Dr. Addario to conclude it was "more plausible" that Pomerado Hospital placed Serebryakova on a section 5150 hold to "justify [a hospital bed] for insurance purposes" than for "clinical reasons."
After satisfying Government Claims Act presuit claim requirements (Gov. Code, § 810 et seq.), Serebryakova filed this lawsuit. In the operative first amended complaint (complaint), Starr (as Serebryakova's successor in interest) asserts causes of action for negligence and negligence per se against Palomar Health, "psychiatric liaison RN" Ezell, and admitting physician Dr. Anshus. The gravamen of each claim is that the defendants breached duties owed to Serebryakova not to impose a section 5150 hold on her without probable cause, which allegedly was lacking because she voluntarily sought psychiatric care. The complaint seeks damages consisting of (among other things) attorney fees incurred in the litigation that culminated in Serebryakova I, professional fees paid to Drs.Garcia and Addario in connection with the firearms restriction and fitness evaluation proceedings, lost wages and earning capacity, and emotional distress.
Respondents demurred to the complaint on the basis of statutory immunities set forth in the Government Code and Welfare and Institutions Code. (Gov. Code, §§ 820.2, 855.6, 856, 855.8; § 5278.)6 Starr's opposition addressed the Welfare and Institutions Code immunity provision and only one of the Government Code provisions (Gov. Code, § 856). The trial court found that Starr's failure to address the remaining Government Code provisions "impliedly concede[d] Palomar Health and Ezell are immune" under those provisions. Accordingly, the court sustained their demurrer without leave to amend.7
The trial court entered judgment in favor of Respondents. Starr appeals.
Starr contends that because Respondents allegedly lacked probable cause to confine Serebryakova under section 5150 (), the trial court erred in sustaining Respondents' demurrer on Government Code immunity grounds. She further contends the alleged lack of probable cause precludes us from affirming the judgment based on LPS Act immunity (§ 5278). We conclude the Government Code bars Starr's claims against Respondents,and affirm on that basis. We therefore do not address whether the LPS Act immunity statute also applies.
In our review of a judgment of dismissal following the sustaining of a demurrer without leave to amend, "we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose." (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) We continue to assume the truth of the properly pleaded or implied factual allegations, as well as matters that have been judicially noticed. (Schifando, supra, 31 Cal.4th at p. 1081.) However, we do not assume the truth of contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry).) We affirm the judgment if it is correct on any ground stated in the demurrer. (Ibid.) We presume the trial court's ruling is correct, and the appellant has the burden of affirmatively establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).)
We review for an abuse of discretion the trial court's decision not to grant leave to amend. (Aubry, supra, 2 Cal.4th at p. 971.)
(Ford v. Norton (2001) 89 Cal.App.4th 974, 979.) The "first step" in the commitment process is a "72-hour treatment and evaluation" hold authorized by section 5150. (Ford, at p. 979.)8 Under this code section, certain officials (including law enforcement and certain medical professionals) are authorized to bring an individual to a designated mental health facility for evaluation if there...
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