Frausto v. Cal. Highway Patrol CA1/2 ( 2021 )

Filed 4/22/21 Frausto v. Cal. Highway Patrol CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
YOLANDA FRAUSTO et al.,
Plaintiffs and Appellants,
A159504
v.
CALIFORNIA HIGHWAY PATROL (Alameda County
et al., Super. Ct. Nos. RG16809897
& RG17857166)
Defendants and Respondents.
John Anthony Cornejo died of a methamphetamine overdose after
having been arrested by California Highway Patrol (CHP) officers during a
traffic stop and observed to put in his mouth and swallow something he
insisted was gum, not drugs. Plaintiffs, his parents, prevailed in a wrongful
death suit predicated on the negligence of the officers who took Cornejo to jail
rather than to the hospital. After this court affirmed the judgment, plaintiffs
sought an award of attorney fees under Code of Civil Procedure section
1021.5.1 This appeal is from the trial court’s denial of the motion for attorney
fees. We affirm.
Further statutory references will be to the Code of Civil Procedure
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except as otherwise specified.
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BACKGROUND
The underlying facts are explained at length in our opinion on
defendants’ appeal from the judgment in plaintiffs’ favor, Frausto v.
California Highway Patrol (2020) 53 Cal.App.5th 973 (Frausto). In brief,
during a traffic stop about 4:00 a.m., officers observed Cornejo put something
in his mouth and begin chewing. Cornejo said it was gum and, when told to
spit it out, became very nervous and backed away from the officers; a brief
struggle ensued and Cornejo was taken into custody. He said he had
swallowed the gum and, when asked if he swallowed drugs, insisted it was
only gum despite officers’ warnings that he would need medical attention if
he had ingested drugs. Cornejo did not exhibit signs of being under the
influence of a stimulant or being in need of medical attention. A search of his
vehicle revealed a methamphetamine pipe. Although it was denied by the
officers at trial, the probable cause declaration written after the arrest
described officers having seen Cornejo put what looked like a plastic baggie
in his mouth, and directing him to spit out “the bag.”
Officers transported Cornejo to the Glenn E. Dyer Detention Facility,
where they informed the receiving deputy sheriff that Cornejo had swallowed
something he said was gum; they did not report that Cornejo might have
swallowed a plastic baggie they believed contained a controlled substance. At
the jail, Cornejo declined multiple offers of medical attention. He was
subsequently found on the floor of a holding cell with foam in his mouth and
taken by ambulance to the hospital, where he died of acute
methamphetamine poisoning.
According to the evidence at trial, the California Highway Patrol Safety
Manual (CHP Manual) states that officers “shall arrange for a medical
examination whenever a prisoner appears to be in need of or requests
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medical attention, regardless of outward symptoms of illness or injury.”
Officers testified that whether this policy would require taking an arrestee
suspected of ingesting drugs to the hospital would depend on circumstances
such as whether the arrestee exhibited signs of potential overdose, what the
arrestee was seen ingesting, and what the arrestee claimed to have
swallowed. The officer who conducted the traffic stop acknowledged that the
policy was included in his training, that he would have an obligation to call
for medical assistance if he thought Cornejo swallowed drugs, and that he
told officers at the scene he believed Cornejo had swallowed a controlled
substance.
Plaintiffs sued the 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 section 1983 of title 42 of the United States Code; the
federal court granted the defendants’ motion for summary judgment on the
federal claim and declined to exercise jurisdiction over the state claims.
Plaintiffs then returned to state court with a complaint against the CHP and
several of its officers. The trial court sustained defendants’ demurrer to the
Bane Act cause of action without leave to amend and granted defendants’
motion for judgment on the pleadings as to the survival action, and the case
ultimately went to trial solely on the negligence claim. The jury returned a
special verdict against defendants in the amount of $827,544.00, allocating
comparative fault 35 percent to one of the officers, 13 percent to another, 30
percent to the third, and 22 percent to Cornejo. The resulting recovery for
plaintiffs was $645,484.32. After judgment was entered, defendants
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unsuccessfully moved for judgment notwithstanding the verdict. Defendants
appealed, and we affirmed the judgment.
Meanwhile, on December 20, 2018, plaintiffs filed a motion for attorney
fees pursuant to Code of Civil Procedure section 1021.5.2 The trial court’s
order denying this motion was filed on December 19, 2019, and this appeal
followed.
DISCUSSION
Section 1021.5 authorizes a court to “award attorneys’ fees to a
successful party against one or more opposing parties in any action which has
resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement, or of enforcement by one public
entity against another public entity, are such as to make the award
appropriate, and (c) such fees should not in the interest of justice be paid out
of the recovery, if any.”
Section 1021.5 “codifies the private attorney general doctrine and acts
as an incentive to pursue ‘ “ ‘public-interest litigation that might otherwise
have been too costly to bring.’ ” ’ ” (Hall v. Department of Motor
Vehicles (2018) 26 Cal.App.5th 182, 188.) To obtain fees, the moving party
must establish “ ‘(1) he or she is a “successful party”; (2) the action has
resulted in the enforcement of an important right affecting the public
interest; (3) the action has conferred a significant benefit on the public or a
large class of persons; and (4) an attorney fees award is appropriate in light
2The motion also sought attorney fees under section 2033.420, but this
appeal does not challenge the trial court’s denial of the motion on that
ground.
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of the necessity and financial burden of private enforcement.’ ” (Canyon Crest
Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, 408 (Canyon
Crest).)
“Since section 1021.5 states the criteria supporting a grant of fees in
the conjunctive, ‘each element must be satisfied to justify a fee award.’
(Children & Families Com. of Fresno County v. Brown (2014) 228 Cal.App.4th
45, 55 (Children & Families).) However, this is not a purely objective
analysis. Rather, in considering a fee request made pursuant to section
1021.5, the trial court, ‘ “ ‘[utilizing] its traditional equitable discretion,’ . . .
‘must realistically assess the litigation and determine, from a practical
perspective’ [citation] whether or not the statutory criteria have been met.” ’ ”
(City of Oakland v. Oakland Police & Fire Retirement System (2018) 29
Cal.App.5th 688, 697–698, quoting Summit Media, LLC v. City of Los Angeles
(2015) 240 Cal.App.4th 171, 187.)
“Generally, a trial court's ruling on a request for attorney fees under
section 1021.5 is reviewed for abuse of discretion. (Vasquez v. State of
California (2008) 45 Cal.4th 243, 251.)” (Children & Families, supra, 228
Cal.App.4th at p. 57.) “ ‘Whether the statutory requirements have been
satisfied so as to justify a fee award is a question committed to the discretion
of the trial court, unless the question turns on statutory construction, which
we review de novo.’ (Collins v. City of Los Angeles (2012) 205 Cal.App.4th
140, 152.) Under the abuse of discretion standard, we presume the trial court
properly applied the law and acted within its discretion unless the appellant
affirmatively shows otherwise.” (Canyon Crest, supra, 46 Cal.App.5th at
pp. 408–409.)
Plaintiffs urge us to review their entitlement to attorney fees de novo
because, having affirmed the judgment in plaintiffs’ favor in Frausto, our
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ability to assess the importance of the right enforced and benefit to the public
is as good as or better than the trial court’s. “ ‘[W]hen the successful legal
action resulted in a published appellate opinion,’ the appellate court ‘is in at
least as good a position as the trial court to judge whether the legal right
enforced through its own opinion is “important” and “protects the public
interest” and whether the existence of that opinion confers a “significant
benefit on the general public or a large class of persons.” ’ ” (Canyon Crest,
supra, 46 Cal.App.5th at p. 409, quoting Los Angeles Police Protective League
v. City of Los Angeles (1986) 188 Cal.App.3d 1, 5, 8 (Police Protective League).)
Defendants counter that we cannot consider our Frausto opinion
because it was filed some eight months after the trial court’s order denying
attorney fees and, “[i]t is an elementary rule of appellate procedure that,
when reviewing the correctness of a trial court's judgment, an appellate court
will consider only matters which were part of the record at the time the
judgment was entered.” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d
800, 813.) This rule is inapposite to plaintiffs’ point. A published appellate
opinion in a case in which attorney fees have been sought pursuant to section
1021.5 is not the equivalent of factual evidence the trial court was unable to
consider, such as the postjudgment insolvency of a party at issue in Reserve
Insurance Co. The significance of the appellate opinion is simply that the
appellate court has considered the right at issue and having done so, is in a
particularly good position to assess certain of the factors bearing on the
attorney fees question.3
3Police Protective League, supra, 188 Cal.App.3d at pages 8 and 9,
explained: “[A]t least two of the four elements of the section 1021.5 test are
issues more easily evaluated by appellate courts than by trial courts.
Normally the appellate court will be in a better position to assess whether a
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We need not resolve the parties’ dispute over the standard of review,
however, as our conclusion would be the same whether we review the trial
court’s decision de novo or for abuse of discretion.
Only one aspect of the multi-pronged section 1021.5 analysis is at issue
on this appeal. The trial court found most of the factors supported an
attorney fees award: The plaintiffs were the prevailing parties at trial; the
financial analysis pointed in favor of an award because the “potential payoff”
was “speculative at best” and “the costs and fees necessary to prosecute the
case to conclusion stood to be substantial”; and the issue of “providing
medical care and assistance to detainees implicates an important public
right, or is a right that affects large numbers of people or the general public.”
Nevertheless, the court denied the motion for attorney fees because it
given legal action has had a significant impact on the law. . . . Except in rare
situations this does not require either court to make factual findings based on
conflicting testimony from live witnesses of varying credibility. It is in the
true sense a question of law. . . . [¶] . . . . How many people will receive what
kind of benefit, and how much, as a result of a given legal action is usually
more of a value judgment than an issue of fact. And most often it is a value
judgment about legal effects and the like which appellate courts are well
situated to make.” (Police Protective League, supra, 188 Cal.App.3d at pp. 8–
9.)
Police Protective League, supra, 188 Cal.App.3d 1, differed from the
present case in that the published appellate opinion was issued prior to any
determination of entitlement to fees: The appellate court reversed the trial
court’s denial of a petition for writ of mandate and remanded for
determination of plaintiff’s motion for attorney fees, which the trial court had
not previously considered because it had denied the writ petition. That the
trial court here rendered its decision on attorney fees prior to issuance of our
opinion on the merits of the underlying controversy does not make Police
Protective League’s discussion any less relevant. As the Police Protective
League court observed, “If there ever was a question an appellate court is
better equipped to decide than a trial court, it is whether the appellate
decision it issued ‘enforced an important right.’ ” (Id. at pp. 8–9.)
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concluded the case “did not enforce or vindicate an important right affecting
the public interest.”
The trial court noted that the constitutional and statutory claims
plaintiffs initially alleged had been removed from the case by the time it went
to trial, and only the wrongful death claim went to the jury. Although the
court conceded common law rights might provide the basis for a fees award
under section 1021.5 in “limited circumstances,” it found the present case
inappropriate for such an award because at the time of Cornejo’s arrest, the
CHP “had in place a policy that required detainees to be taken to the hospital
if they were in need of medical care, or if they manifested symptoms that
suggested that medical care was required or warranted,” and the officer
defendants “were clearly aware of and had been trained in the policy.” That
the officers “chose to ignore the policy, made a mistake or perhaps even acted
with malice toward Mr. Cornejo,” the court reasoned, “does not detract from
one, inconvenient truth—in hindsight, Mr. Cornejo should have been taken to
the hospital. It does also not detract from yet a second inconvenient truth,
one that Judge Petrou cited in dismissing the Bane Act claim on demurrer:
That the defendants advised Mr. Cornejo that if he had swallowed drugs, he
would probably need medical treatment, but that Cornejo repeatedly denied
having swallowed drugs or requiring medical treatment. Given that the
(dismissed) defendant [CHP] had a policy in place that required appropriate
medical treatment to be provided to detainees when necessary, it is unclear
(and plaintiffs have not articulated on these facts) what important public
right has been enforced by the verdict in this case such that the court could
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justifiably award fees pursuant to section 1021.5.”4 In short, the court
concluded an award under section 1021.5 was unwarranted “based on the
jury finding of negligence.”
Plaintiffs complain that the trial court erred in focusing on the
dismissal of their civil rights claims and diminishing the importance of the
right at stake. Plaintiffs recognize that the trial court explicitly
acknowledged both the importance of a detainee’s right to necessary medical
treatment and the fact that a section 1021.5 fees award may be based on
common law rights. They argue, however, that the court framed the case too
narrowly and its comments on the need for officers to have taken Cornejo to
the hospital and Cornejo’s refusal to admit swallowing drugs imply that
Cornejo’s comparative fault “somehow diminished or affected whether the
lawsuit was addressing an important public right.”
We disagree with plaintiffs’ reading of the trial court’s decision. The
court’s point was that because the CHP had a policy requiring provision of
medical treatment to detainees when necessary, the issue in this case was
the reasonableness of the officers’ failure to provide what hindsight showed to
be necessary treatment in light of Cornejo’s concealment of the facts that
would have made the need for treatment apparent. In other words, the case
was not about enforcing the principle that detainees have a right to necessary
medical treatment but rather about determining whether these officers
4 The court’s apparent reference to CHP having been dismissed as a
defendant is curious. CHP was not dismissed; the judgment specifically
awarded noneconomic damages against CHP together with each of the
individual defendants, according to each individual defendant’s allocated
percentage of fault, as CHP’s liability was solely derivative of the individual
officers’ liability. This apparent error in the court’s decision does not affect
the validity of its reasoning and conclusions.
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provided the requisite medical treatment for this particular detainee in these
particular circumstances.
The cases plaintiffs offer as examples of courts enforcing important
rights for purposes of section 1021.5 involved litigation that forced
defendants to alter their conduct in recognition of a right the defendants had
been violating. The plaintiffs in Press v. Lucky Stores (1983) 34 Cal.3d 311,
who were gathering signatures outside a supermarket in an attempt to
qualify an initiative for the ballot, obtained an injunction after store officials
ordered them to leave the premises, thereby requiring the defendant to allow
them this exercise of established constitutional rights to free speech and
petition and enabling the plaintiffs to gain access to additional shopping
centers in the state. In Skinner v. Ken’s Foods, Inc. (2020) 53 Cal.App.5th
938, 942, litigation challenging the labelling on salad dressing resulted in the
defendant changing its misleading labeling and advertising practices.
Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th
1159, invalidated an ordinance adopted by a city council that purported to
amend a contract so as to permit action violating a local proposition
regulating billboards. Friends of the Trails v. Blasius (2000) 78 Cal.App.4th
810, enjoined private landowners from interfering with access to a public
easement across their property.
As the trial court explained, the present case is distinctly different—
despite the undeniable importance of detainees’ right to necessary medical
treatment. According to the evidence at trial, at the time of Cornejo’s arrest,
an existing CHP policy required provision of necessary medical care to
detainees, and the officers involved in Cornejo’s detention and arrest were
aware of and trained in that policy. The question presented to the jury was
whether the defendant officers acted reasonably on the facts of this case. The
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jury’s verdict did not require any change in policy or conduct: It was and
remains the duty of individual officers to evaluate the circumstances in any
given incident to determine whether a detainee is in need of medical care.
Plaintiffs argue that this case “defin[ed] the obligations of the state to
care for those in its custody,” as defendants denied they had “a duty to
provide medical care to people in their custody” and our opinion in Frausto
established as an issue of first impression that such a duty exists. Plaintiffs’
characterization is inaccurate.
First, in arguing the “core” of this case was CHP’s duty to provide
medical care to those in its custody, plaintiffs state that defendants argued
the absence of such duty in their motion for judgment notwithstanding the
verdict and in the prior appeal. Defendants did not make such an argument
in their motion for judgment notwithstanding the verdict—indeed, plaintiffs
maintained on the prior appeal that defendants were precluded from arguing
lack of duty because they did not make this argument in the motion for
judgment notwithstanding the verdict or otherwise at trial. (Frausto, supra,
53 Cal.App.5th at p. 991.) On appeal, defendants argued there was no duty
to provide medical care in the circumstances of this case. (Ibid.) Our opinion
focused on duty created by virtue of the special relationship doctrine, which
defendants argued was inapplicable because Cornejo created his own peril by
swallowing the methamphetamine, the officers did not take affirmative
action increasing the peril, Cornejo did not detrimentally rely upon the
officers for assistance, and there was no basis for the officers to override
Cornejo’s constitutional right to refuse medical treatment. (Ibid.) In
rejecting these arguments and holding that a special relationship was
established once Cornejo was taken into custody, we held the officers had a
duty to use reasonable care. (Id. at pp. 992–993.) But this was never really
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disputed: As we have said, the CHP Manual stated officers were required to
provide necessary medical care, and the officers acknowledged this in their
testimony. The question put to and decided by the jury—as plaintiffs
expressly recognize—was whether the officers “act[ed] reasonably when they
decided not to take Mr. Cornejo to the hospital.”
We observed in Frausto that “[i]n framing the question as whether the
officers had a duty to take Cornejo to the hospital rather than to jail,
defendants muddle the distinctions between the existence and scope of duty
and breach of the standard of care. Once Cornejo was in custody, he was
subject to the control of the officers and no longer in a position to attend to
his own medical needs. At this point, regardless of Cornejo’s role in creating
his predicament, the officers had a duty to use reasonable care in responding
to the situation. Whether the officers should have recognized a need for
immediate medical attention despite the absence of symptoms of drug use
and Cornejo’s disclaimers and rejection of offers of medical assistance was a
question of fact, as was the question whether the duty of care was satisfied by
taking Cornejo to jail rather than the hospital. These were questions for the
jury, not legal questions delineating the scope of the duty.” (Frausto, supra,
53 Cal.App.5th at p. 993.)
Plaintiffs, in attempting to make their case for section 1021.5 attorney
fees, make the same mistake of muddling the concepts of duty and breach of
the standard of care. Cornejo’s death was undeniably tragic. But this case is
more aptly characterized as penalizing the officers who acted negligently, and
providing a measure of compensation to Cornejo’s parents, than as
establishing or enforcing a right to necessary medical treatment that will
inure to the significant benefit of a large class of persons. We agree with the
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trial court’s conclusion that an award of attorney fees pursuant to the private
attorney general doctrine is not appropriate.
DISPOSITION
The order is affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
Frausto et al. v. California Highway Patrol et al. (A159504)
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