Julian v. Mission Community Hospital , 218 Cal. Rptr. 3d 38 ( 2017 )

Filed 5/2/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KATIA JULIAN, B263563
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LC100529)
v.
MISSION COMMUNITY
HOSPITAL et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Frank J. Johnson, Judge. Affirmed.
Law Office of Gary Brown and Gary Brown for Plaintiff and
Appellant.
Cole Pedroza, Kenneth R. Pedroza, E. Todd Chayet;
Reback, McAndrews, Kjar, Warford & Stockalper, Thomas F.
McAndrews and Tracy D. Hughes for Defendants and
Respondents Mission Community Hospital and Deanco
Healthcare, LLC.
Bonne, Bridges, Mueller, O’Keefe & Nichols, David J.
O’Keefe, Thomas M. O’Neil, Michael Vincent Ruocco and Gary
Dennis for Defendant and Respondent Abdul Shirazi, M.D.
Lynberg & Watkins, Gary A. Bacio and Christopher P.
Bates for Defendants and Respondents Los Angeles Unified
School District, Los Angeles Unified School Police, Libier
Valencia, Yvonne Miranda, Elizabeth Lara, Jose Cardenas, and
Robert Taylor.
INTRODUCTION
This action arises out of a series of events that began at a
Los Angeles middle school, where Katia Julian taught
mathematics, and ended at Mission Community Hospital, where
Julian was involuntarily detained for mental health evaluation
and treatment. After her release, Julian sued the Los Angeles
Unified School District (LAUSD), the Los Angeles Unified School
Police (LAUSP), and five individual police officers (collectively,
the school defendants) who detained her and helped transport
her to the hospital. She alleged the school defendants did not
have probable cause under Welfare and Institutions Code section
5150 to detain her.1 Julian also sued the hospital (Mission
Community Hospital), its owner (Deanco Healthcare, LLC), and
the physician who treated her there (Dr. Abdul Shirazi)
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
(collectively, the hospital defendants), alleging they lacked
probable cause to continue to detain her and to admit her to the
hospital where she spent one night before she was released the
next day.
Julian’s operative third amended complaint sought
monetary damages for various alleged violations of the
Lanterman-Petris-Short Act (section 5000 et seq.) (the Act) and of
her civil rights under the federal and state constitutions. The
trial court sustained the hospital defendants’ demurrers to
Julian’s third amended complaint and granted the school
defendants’ motion for summary judgment.
We conclude there is no private right of action for the
violations of the Act Julian alleged. We also conclude the school
district and the school police are immune from liability under
Title 42 United States Code section 1983 (section 1983), the
individual officers are entitled to qualified immunity, the hospital
and physician are not state actors for purposes of Julian’s section
1983 claims, most of the provisions of the California Constitution
Julian invoked do not create causes of action for damages, and
Julian failed to state a claim for violations of those provisions
that might provide such a cause of action. Finally, because the
hospital defendants are not state actors for purposes of section
1983, they cannot be liable for Julian’s alleged violations of the
California Constitution. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The School Police Detain Julian
On May 1, 2012 Julian attended a mathematics
department meeting in a classroom at the middle school where
3
she taught.2 Julian claimed that at the end of the meeting
another teacher “physically assaulted” her by grabbing her hand
as she tried to close the door to the classroom. Julian reported
the alleged assault to the school’s principal, Nidia Castro, who
told Julian she would report the incident to the school police.
Julian asked Castro not to report the incident to the school police
because, as Castro knew, Julian had “a severe nervous reaction”
to the school police stemming from earlier incidents. Castro also
knew Julian had a “seizure disorder that was exacerbated by
extreme stress.”
That evening Castro received a text message from Julian’s
close friend, Jackie Ibrahim, another teacher at the school who
had been discussing with Julian some recent changes at the
school. The message read, “Wow I finally convinced Katia to stay
and now you throw me this curve ball--it seems the situation
changes each day . . . you really got our hopes up and now you are
going back on what you said. I want to throw up and Katia
wants to slit her wrists.” Castro responded, “I am concerned
about the line ‘Katia wants to slit her wri[s]ts’ do I need to send
someone to her? Are you with her? Will she be okay? This entire
process has been very chaotic and has not been easy for me
either. Just hang in there.” Ibrahim informed Castro she was
with Julian, and Castro took no further action at that time.
2 The facts relevant to the school defendants are from the
operative third amended complaint, facts identified as
undisputed in Julian’s separate statement in opposition to the
school defendants’ motion for summary judgment, and Julian’s
declaration. The facts relevant to the hospital defendants are
from the allegations of the third amended complaint only.
4
The following morning Castro met with Julian on an
unrelated matter and recorded in her notes that they had “a very
relaxed, friendly conversation.” Despite Julian’s request that
Castro not report the alleged assault to the school police, Castro
believed “a report needed to be made,” so she sought advice from
a superior who suggested she speak with someone in the office of
crisis counseling. Castro explained to the crisis counselor that
she knew she had a responsibility to address Julian’s claim of a
physical assault but wanted to be sensitive to her fear of the
school police. Castro also explained she needed to be “extra
sensitive” in light of Ibrahim’s text stating that Julian wanted to
slit her wrists. The crisis counselor reminded Castro of her
“responsibility for employee safety” and advised her to follow the
guidelines governing workplace violence.
Castro reported the alleged assault to Officer Libier
Valencia, a school police officer assigned to the middle school,
even though Castro knew Julian disliked Officer Valencia. While
Castro was discussing the situation with Officer Valencia, the
crisis counselor, Karen Miller, called Castro with additional
questions about Julian. During this conversation, Castro and
Officer Valencia revealed that Julian had scratches on her
forearms Julian had told Castro were caused by her cats and that
Julian had expressed a need for “revenge” against yet another
teacher who had crossed her. All of the participants in this
conversation agreed they needed additional information from
Julian about the alleged assault, and, because Castro and Officer
Valencia knew Julian would not want to speak to Officer
Valencia, they requested another officer question Julian.
Sergeant Robert Taylor, Officer Valencia’s superior officer,
eventually arrived to question her.
5
Before questioning Julian, Sergeant Taylor called Miller for
more information. Miller told Sergeant Taylor she was concerned
about Julian’s mental stability because Julian had recently lost a
different lawsuit against the school district and had told her best
friend she was going to “slit her wrists.” Miller impressed upon
Sergeant Taylor that Julian might be suicidal. Sergeant Taylor
requested additional officers for backup, including Officers
Yvonne Miranda, Elizabeth Lara, and Jose Cardenas.
Aware of Julian’s previous encounters with Officer
Valencia, Sergeant Taylor and Castro agreed that Castro would
make initial contact with Julian and explain to her Sergeant
Taylor was there to interview her about the alleged assault. The
other officers remained in a conference room nearby while Castro
approached Julian with Sergeant Taylor behind her. Castro told
Julian the officer was there to “take her report.” In response,
Julian ran down the hallway and placed herself between a
student desk and a copier. She told Sergeant Taylor she did not
want to talk to him, began crying and screaming, and dropped or
slid to the floor with her back against the wall. Another school
administrator came out of her office, told Castro she had seen
Julian do something similar before, and offered to take Julian
into her office so she could calm down. Castro declined her offer
because Julian continued screaming “get away from me” and
Castro did not know at whom Julian was screaming.
According to Castro’s notes, which Julian submitted in
opposition to the school defendants’ motion for summary
judgment (and which the parties refer to as the “Castro
timeline”), Sergeant Taylor asked Julian to “calm down” and told
her “she [w]as safe.” Julian began “screaming even louder.” As
Officer Valencia approached, Julian continued screaming, “Get
6
away from me.” Castro crouched down in front of Julian and told
her she would not leave her alone with the officers and they
would not harm her, while Sergeant Taylor remained four or five
feet away. Julian told Castro she was afraid Sergeant Taylor was
going to hurt her, and Castro told her that “all he wanted was to
get her statement regarding her allegations of physical assault.”
Julian said Sergeant Taylor “was [taking] her freedom away.”
Castro asked Sergeant Taylor to leave her alone with Julian, but
he said he could not do that. Sergeant Taylor stated that, “due to
[Julian’s] state and reactions, he was going to call paramedics,”
at which point Julian yelled she had done nothing wrong and
continued to scream “leave” and “get away from me.”
While waiting for the ambulance to arrive, Julian reached
for her phone inside a small bag beside her. Not knowing what
Julian was reaching for, Sergeant Taylor approached, knelt
down, and turned Julian around to handcuff her. Julian resisted,
and Sergeant Taylor called the other officers to assist. Officer
Miranda attempted to control the growing crowd of students,
employees, and parents in the area. Julian continued to scream,
struggled with the officers, and complained after she had been
handcuffed that her back hurt. Julian asked Castro to take her
phone from her bag and call her attorney, but Castro was unable
to call him before the ambulance arrived.
When the paramedics arrived, they attempted to move
Julian to a gurney, but she resisted and said to Castro, “Do you
see what they are doing to me?” Another administrator told
Julian to cooperate, but Castro noted the more the paramedics
asked Julian to calm down “the angrier she became.” Eventually
the paramedics secured Julian on a gurney and transported her
7
to Mission Community Hospital, approximately one block from
the school.
B. The Hospital Detains Julian
Upon arriving at the hospital, Julian continued “to thrash
and try to slide off the [g]urney.” Officer Valencia gave the
hospital a completed Application for 72-Hour Detention for
Evaluation and Treatment form pursuant to section 5150. The
application stated Julian “went out of control, throwing herself to
the floor” when the school police contacted her about a criminal
investigation, and Julian “made statements to [an]other school
staff member that she wanted to cut her wrist.” The section 5150
application further stated: “She has 6 to 8 cuts on the right & left
wrist. Mrs. Julian came into a crawling position and was
screaming out of control.” The document concluded, “Based upon
the above information it appears that there is probable cause to
believe that [Julian] is, as a result of mental disorder[, a] danger
to . . . herself [and a] danger to others.” Julian calmed down after
approximately 15 minutes in the hospital, and the paramedics
asked the officers to remove the handcuffs.
Dr. Daniel Moghadam initially examined Julian. Julian
alleged he ignored the “cat scratches” on her arms, failed to
investigate her seizure disorder, and “erroneously accepted” the
information in the section 5150 form from the school police. Dr.
Moghadam transferred Julian to the Behavioral Health Unit.
Julian alleged the hospital held her there an “unnecessarily long
time,” and she never received a proper examination by a qualified
individual designated by the hospital pursuant to the Welfare
and Institutions Code. Instead, she alleged, Dr. Shirazi, who was
not a board certified psychiatrist or designated by the hospital to
8
detain persons with possible mental disorders, telephonically
ordered Julian’s detention for up to 72 hours and “illegally
prescribed anti-psychotic medications” without examining her or
obtaining her informed consent.
Although the chronology of events in Julian’s allegations is
unclear, she appears to have alleged that, after her detention,
another doctor, “who was not qualified to do an assessment and
yet improperly diagnosed an acute psychosis, noted but did not
investigate a seizure disorder, and also failed to notice the lack of
cuts on her arms.” After Julian spent the night in the hospital,
Dr. Shirazi personally examined her the next day and released
her. Julian alleged, “Had the hospital protocol required the
physician to undertake a careful examination of [her] . . . [she]
would have been rejected as a detainee.”
C. Julian Sues the School Defendants and the Hospital
Defendants
Julian sued the school defendants and the hospital
defendants for violations of the Act, violations of her civil rights
under section 1983 and the California Constitution, false
imprisonment, intentional infliction of emotional distress, and
medical negligence. The trial court sustained demurrers by all of
the defendants, and Julian eventually filed the operative third
amended complaint. That complaint did not include causes of
action for intentional infliction of emotional distress or medical
negligence.3
The school defendants answered the third amended
complaint and filed a motion for summary judgment or in the
3 The third amended complaint also dropped claims against
Dr. Moghadam and another doctor who examined Julian.
9
alternative summary adjudication. The hospital defendants
demurred again.
Following a hearing on the demurrers and the motion for
summary judgment, the trial court granted the school
defendants’ motion for summary judgment. With regard to
Julian’s first cause of action for violations of the Act, the court
ruled the school defendants were immune from liability because
they properly exercised their authority to place Julian on a 72-
hour hold. In particular, the court stated Julian’s “behavior was
bizarre and the [school defendants] are not required to make a
definitive prognosis of [Julian’s] mental health” before detaining
her. With regard to Julian’s civil rights claims, the court found
the school defendants enjoyed qualified immunity and
“undisputed supporting evidence supported the actions of the
[school defendants’] authority under the law” to detain Julian.
The court also found the school defendants were immune from
liability for civil rights violations under the California
Constitution pursuant to Government Code section 821.6.
Counsel for Julian abandoned the false imprisonment cause of
action by acknowledging it was “no longer viable.”
On the demurrers by the hospital defendants, the court
ruled the third amended complaint failed to state facts sufficient
to constitute causes of action. The court found the third amended
complaint was not significantly different from the “prior
iterations of the complaint.” With regard to the cause of action
for statutory violations, the court stated “the pleading suffers
from the same shortcomings as that in the [second] amended
10
complaint without new facts or law presented.”4 On Julian’s
causes of action for civil rights violations, the court ruled the
complaint failed “to show how Dr. Shirazi, or the hospital, acted
under the color of law or had any role in violating [Julian’s] civil
rights.” Julian again conceded her cause of action for false
imprisonment was not viable and withdrew it. The court
sustained the demurrers without leave to amend.5 Julian timely
appealed from the ensuing judgment.
DISCUSSION
A. Standard of Review
“A motion for summary judgment is properly granted only
when ‘all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’ [Citation.] We review a grant of
summary judgment de novo and decide independently whether
the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. [Citations.] The evidence must
be viewed in the light most favorable to the nonmoving party.”
(Samara v. Matar (2017) 8 Cal.App.5th 796, 802-803; see Code
Civ. Proc., § 437c, subd. (c); Biancalana v. T.D. Service Co. (2013)
56 Cal.4th 807, 813; Drexler v. Petersen (2016) 4 Cal.App.5th
1181, 1188.) “A triable issue of material fact exists where ‘the
4 The trial court’s ruling on the hospital defendants’
demurrers to the second amended complaint is not in the record.
5 Julian does not contend on appeal the trial court should
have granted her leave to amend the third amended complaint,
nor on appeal does she ask for leave to amend.
11
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.’” (Jade Fashion
& Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th
635, 643.) We may affirm a summary judgment if it is correct on
any of the grounds asserted in the trial court, regardless of the
trial court’s stated reasons. (Grebing v. 24 Hour Fitness USA,
Inc. (2015) 234 Cal.App.4th 631, 637.)
We review the trial court’s order sustaining the hospital
defendants’ demurrers de novo. (See Eckler v. Neutrogena Corp.
(2015) 238 Cal.App.4th 433, 438; Lewis v. Safeway, Inc. (2015)
235 Cal.App.4th 385, 390-391.) In so doing, we exercise our
“‘independent judgment about whether the complaint states a
cause of action as a matter of law.’” (Eckler, at p. 438.) We
assume the truth of all properly pleaded facts, but we do not
assume the truth of contentions, deductions, or conclusions of fact
or law. (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 764;
see Eckler, at p. 438.) We review questions of statutory
interpretation de novo. (John v. Superior Court (2016) 63 Cal.4th
91, 95; Even Zohar Const. & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830, 837.)
“‘If a demurrer is sustained, we exercise our independent
judgment on whether a cause of action has been stated as a
matter of law, regardless of reasons stated by the trial court.
[Citation.] We affirm if the trial court’s decision was correct on
any theory.’” (Schermer v. Tatum (2016) 245 Cal.App.4th 912,
923; see Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th
719, 732, fn. 2 [“appellate court must affirm if the trial court’s
decision to sustain the demurrer was correct on any theory”].)
12
B. The Lanterman-Petris-Short Act
The Legislature enacted the Act in 1967 to govern the
involuntary commitment of mentally disordered persons. (Stats.
1967, ch. 1667, § 36, p. 4074; State Dept. of Public Health v.
Superior Court (2015) 60 Cal.4th 940, 952; Coburn v. Sievert
(2005) 133 Cal.App.4th 1483, 1492.) One of the purposes of the
Act is to provide “prompt evaluation and treatment of persons
with mental health disorders or impaired by chronic alcoholism.”
(§ 5001, subd. (b).) This purpose “reflects the unfortunate reality
that mental illness in its most acute form can pose a danger to
the individuals themselves or others that requires immediate
attention. To achieve this purpose, a number of [the] Act[’s]
provisions allow a person to be removed from the general
population in order to be civilly committed based on a probable
cause determination made by a mental health or law enforcement
professional, and then to challenge the civil commitment within a
reasonable time afterwards.” (Cooley v. Superior Court (2002) 29
Cal.4th 228, 253-254.)
The Act safeguards the rights of the involuntarily
committed through judicial review. (See § 5001; Sorenson v.
Superior Court (2013) 219 Cal.App.4th 409, 423.) For example,
the Act limits involuntary commitment to successive periods of
increasingly longer duration, beginning with a 72-hour detention
for evaluation and treatment. (§ 5150; Sorenson, at p. 423.)
Commitments longer than the initial 72-hour detention require a
certification hearing before an appointed hearing officer to
determine whether there is probable cause for confinement,
unless the detainee has filed a petition for writ of habeas corpus.
(§§ 5256, 5256.1, 5262, 5270.15, 5275, 5276; see Sorenson, at pp.
13
423-424.) A 180-day commitment requires a court order.
(§ 5301.)
Section 5150, the statute primarily at issue in this case,
allows law enforcement officers and various medical professionals
to bring an individual to an appropriate facility for assessment,
evaluation, and treatment for up to 72 hours where there is
“‘probable cause to believe that the person is, as a result of
mental disorder, a danger to others, or to himself or herself, or
gravely disabled.’” (Jacobs v. Grossmont Hospital (2003) 108
Cal.App.4th 69, 74; see Coburn, supra, 133 Cal.App.4th at
p. 1493.) “A broad range of personnel—including peace officers,
members of the staff of the evaluation facility, designated
members of a mobile crisis team, and other professional persons
designated by the county—can initiate the placement of a
mentally disordered person for the 72-hour evaluation.” (Coburn,
at p. 1493; see Ford v. Norton (2001) 89 Cal.App.4th 974, 979.)
When a peace officer takes a person into custody under
section 5150 and presents that person to a facility designated by
the county for evaluation and treatment, the officer must provide
a written application describing the circumstances that brought
the person’s condition to the officer’s attention and stating the
officer “has probable cause to believe that the person is, as a
result of a mental health disorder, a danger to others, or to
himself or herself, or gravely disabled.” (§ 5150, subd. (e).) In
determining whether there is probable cause, a person authorized
to make that determination may consider “available relevant
information about the historical course of the person’s mental
disorder” (§ 5150.05, subd. (a)) and “shall not be limited to
14
consideration of the danger of imminent harm” (§ 5150, subd.
(b)).6
Before admitting a person into a designated facility, “the
professional person in charge of the facility or his or her designee
shall assess the individual in person to determine the
appropriateness of the involuntary detention.” (§ 5151.) “If, in
the judgment of the professional person in charge of the facility
designated by the county for evaluation and treatment [or other
authorized individuals] the person cannot be properly served
without being detained, the admitting facility shall require an
application in writing stating the circumstances under which the
person’s condition was called to the [facility’s] attention . . . and
stating that [the facility] has probable cause [to detain the
person].” (§ 5150, subd. (e).) “Once admitted to a facility for a
72-hour detention, the detainee ‘shall receive an evaluation as
soon after he or she is admitted as possible.’ (§§ 5152, subd. (a),
5008, subd. (a) [‘evaluation’ defined].) In addition, the detainee
‘shall receive whatever treatment and care his or her condition
requires for the full period that he or she is held.’ (§ 5152, subd.
(a).) A person subject to 72-hour detention can be released early,
released after the lapse of 72 hours, certified for an additional 14
days of intensive treatment, or placed under the control of an
appointed conservator. (§§ 5152, subds. (a) & (b), 5250.) An early
release from a 72-hour commitment may occur ‘only if . . . the
psychiatrist directly responsible for the person’s treatment
6 The Legislature added section 5150, subdivision (b), in
2015 (effective Jan. 1, 2016) after Julian filed her third amended
complaint. (See Stats. 2015, ch. 570, § 1.) In all other respects,
the current statute is identical to the statute in effect at the time
Julian filed the third amended complaint.
15
believes, as a result of his or her personal observations, that the
person no longer requires evaluation or treatment.’ (§§ 5152,
subd. (a) [mentally disordered persons], 5172, subd. (a)
[inebriated persons].)” (Coburn, supra, 133 Cal.App.4th at
p. 1493; see Ford, supra, 89 Cal.App.4th at p. 979.)
“Consistent with the goals of the [Act], the decision to
detain a person involuntarily for 72 hours requires the careful
exercise of judgment in evaluating whether, as a result of mental
disorder, a person poses a danger to others, or to himself or
herself.” (Jacobs, supra, 108 Cal.App.4th at pp. 75-76.) Section
5278 provides immunity to individuals who exercise this
authority in accordance with the law. This immunity “allows
individuals authorized to detain a person for 72-hour treatment
and evaluation to make that decision without fear of exposure to
criminal or civil liability.” (Jacobs, at p. 76.) “The prospect of
liability for initiating a 72-hour hold would frustrate and impede
the Legislature’s intent to provide prompt evaluation and
treatment for the mentally ill and to ensure public safety. Thus,
the immunity of section 5278 necessarily applies to individuals or
entities who make the decision to detain, when that decision is
supported by probable cause.” (Ibid.; see Cruze v. National
Psychiatric Services, Inc. (2003) 105 Cal.App.4th 48, 56 [section
5278 applies to individuals and entities].)
C. The Act Does Not Create a Private Right of Action for
the Violations Alleged by Julian
Julian titled her first cause of action “Statutory Violations
Against All Police and Physician and the Hospital Defendants.”
In her the third amended complaint Julian listed a variety of
alleged violations of the Act, including that the police officers
16
“concocted a situation and falsely reported probable cause
pursuant to [sections] 5150, 5157 and 5328,” and she alleged the
hospital defendants “failed to review the false statement of
probable cause submitted by the police defendants and determine
the obvious point that [Julian] did not meet the criteria for
detention and should have been rejected immediately as required
by [sections] 5150, 5150.05, and 5151.” Julian also alleged the
hospital defendants failed to assess and evaluate her in
accordance with sections 5150, subdivision (b), 5150.4, and 5152,
subdivision (a), and failed to provide her with a written
statement of her rights pursuant to section 5325. With regard to
Dr. Shirazi, Julian alleged he should not have treated her
because he was not designated by the hospital at that time to
assess potential detainees, he failed to assess and evaluate her as
soon as possible after her admission pursuant to sections 5150,
subdivision (b), 5150.4, and 5152, subdivision (a), and he
prescribed medication contrary to the requirements of sections
5325.2, 5326.2, 5326.5, 5327, and 5332.
The hospital defendants argue the Act does not create a
private right of action for these violations. The hospital
defendants (and the school defendants), however, did not raise
this issue in the trial court, and the trial court’s order sustaining
the hospital defendants’ demurrers did not address it. We may
nevertheless consider an issue raised for the first time on appeal
“‘when [it] involves purely a legal question which rests on an
uncontraverted record which could not have been altered by the
presentation of additional evidence.’” (Noe v. Superior Court
(2015) 237 Cal.App.4th 316, 335; accord, Sanowicz v. Bacal
(2015) 234 Cal.App.4th 1027, 1042-1043; Kramer v. Intuit Inc.
(2004) 121 Cal.App.4th 574, 578; see Ivanoff v. Bank of America,
17
N.A., supra, 9 Cal.App.5th at p. 732, fn. 2 [“[a]lthough an issue
not raised in the trial court is typically forfeited, we can reach a
ground for demurrer not raised below if it presents a pure
question of law and the parties have been given an opportunity to
address it”].)
Whether the Act creates a private right of action to enforce
the provisions Julian claims the defendants violated “is a pure
question of law that does not turn on disputed facts or evidence.”
(Noe, supra, 237 Cal.App.4th at p. 336; see Shamsian v.
Department of Conservation (2006) 136 Cal.App.4th 621, 631
[“whether [a statute] . . . supports a private right of action is a
question of statutory interpretation and of law for the court”].)7
And the hospital defendants and Julian have briefed the issue on
7 There are no published decisions addressing whether
private parties may sue for violations of the statutes Julian
alleges the defendants violated. The court in Jackson v. Cedars-
Sinai Medical Center (1990) 220 Cal.App.3d 1315 declined to
decide whether the Act creates a private right of action for
violation of sections 5150, 5250, 5325.1, and 5326.2. (See
Jackson, at p. 1319, fn. 7.) In that case the court held the “Act
did not create liability for wrongfully admitting mental patients”
(id. at p. 1322) and the one-year statute of limitations under Code
of Civil Procedure section 340 governing certain tort actions,
rather than the three-year statute of limitations under Code of
Civil Procedure section 338 governing statutory liability, applied
to the plaintiff’s alleged statutory violations (id. at pp. 1319-
1322). Because the plaintiff filed suit beyond the one-year
statute of limitations, the court affirmed dismissal of the action.
(See also Harvey v. Alameda County Medical Center (N.D. Cal.
2003) 280 F.Supp.2d 960, 980 [declining to exercise supplemental
jurisdiction over a claim based on the Act because whether the
Act creates a private cause of action is “a novel issue of California
law”], affd. (9th Cir. 2005) 123 Fed. Appx. 823.)
18
appeal. (See, e.g., Ivanoff v. Bank of America, N.A., supra, 9
Cal.App.5th at p. 732, fn. 2 [considering a new legal issue on
appeal from an order sustaining a demurrer where the court
“invited supplemental letter briefs from the parties” on the issue];
Noe, at p. 336 [considering new legal issue on appeal from
summary judgment where the parties fully briefed the issue].)
Therefore, we consider the issue.
1. Governing Law
“A violation of a state statute does not necessarily give rise
to a private cause of action. [Citation.] Instead, whether a party
has a right to sue depends on whether the Legislature has
‘manifested an intent to create such a private cause of action’
under the statute. [Citations.] Such legislative intent, if any, is
revealed through the language of the statute and its legislative
history.” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th
592, 596; see Noe, supra, 237 Cal.App.4th at p. 336.) “‘[W]e
consider the statute’s language first, as it is the best indicator of
whether a private right to sue exists.’ [Citation.] ‘A statute may
contain “‘clear, understandable, unmistakable terms,’” which
strongly and directly indicate that the Legislature intended to
create a private cause of action. [Citation.] For instance, the
statute may expressly state that a person has or is liable [sic] for
a cause of action for a particular violation. [Citations.] Or, more
commonly, a statute may refer to a remedy or means of enforcing
its substantive provisions, i.e., by way of an action.’” (Noe, at
p. 336, “[sic]” in original; see Lu, at p. 597.) If the statute does
not include explicit language regarding a private right of action,
but contains provisions that create some ambiguity, courts may
19
look to legislative history “for greater insight.” (Lu, at p. 598; see
Noe, at p. 336.)
“‘It is well settled that there is a private right of action to
enforce a statute “only if the statutory language or legislative
history affirmatively indicates such an intent. [Citations.] That
intent need not necessarily be expressed explicitly, but if not it
must be strongly implied.”’” (Noe, supra, 237 Cal.App.4th at
p. 337; see Lu, supra, 50 Cal.4th at p. 601, fn. 6 [courts will not
find a private right of action unless the Legislature has “clearly
manifest[ed] an intent to create a private cause of action under a
statute”]; Thurman v. Bayshore Transit Management, Inc. (2012)
203 Cal.App.4th 1112, 1131-1132 [“[i]t is well settled that there is
a private right of action to enforce a statute ‘only if the statutory
language or legislative history affirmatively indicates such an
intent’”].) “‘“Particularly when regulatory statutes provide a
comprehensive scheme for enforcement by an administrative
agency, the courts ordinarily conclude that the Legislature
intended the administrative remedy to be exclusive unless the
statutory language or legislative history clearly indicates an
intent to create a private right of action.”’” (Noe, at p. 337; see
Thurman, at p. 1132.)
2. Julian Did Not Allege a Violation Enforceable
by a Private Right of Action Under the Act
Julian alleged the defendants violated the following
provisions of the Act: sections 5150, 5150.05, 5150.4, 5151, 5152,
5325, 5325.2, 5326.2, 5326.5, 5327, 5328, and 5332. None of
these statutes includes “‘“clear, understandable, unmistakable
terms”’” that “strongly and directly indicate that the Legislature
intended to create a private cause of action” for the violations
20
Julian alleged. (See Lu, supra, 50 Cal.4th at p. 597; Noe, supra,
237 Cal.App.4th at p. 336.)
Section 5150 expressly creates a private cause of action
against a person who intentionally provides a knowingly false
statement on which probable cause is based, but only against a
person who (unlike a police officer or medical professional) is not
authorized to detain someone under section 5150. (§ 5150, subd.
(e).) Section 5150.05 recognizes a similar, limited cause of action.
(§ 5150.05, subd. (c).) Julian did not sue any person other than a
peace officer or medical professional for providing false
information on which probable cause to detain her was based.
Sections 5150.4 and 5151 define “assessment,” require the
professional person in charge of a facility or his or her designee to
assess an individual in person before admitting that individual to
the facility, and specify that an individual admitted under section
5150 may be held for 72 hours. These provisions do not refer to
or expressly create any cause of action. Section 5152, subdivision
(a), requires each person admitted to a facility for 72-hour
treatment and evaluation to receive an evaluation “as soon as
possible after he or she is admitted.” Julian alleged this did not
happen in her case, but neither subdivision (a) of section 5152 nor
the other provisions of that section refer to or expressly create a
cause of action.
Sections 5325 and 5327 establish and declare certain legal
and civil rights of persons involuntarily detained under section
5150 and require facilities that provide evaluation and treatment
to post a list of those rights in a prominent place. Among the
rights established by section 5325 are the rights for a patient to
wear his or her own clothes, to keep and use his or her personal
possessions, to see visitors, to have reasonable access to
21
telephones, and to refuse convulsive treatment. (§ 5325, subds.
(a)-(f).) Section 5327 states that every person involuntarily
detained under the Act is entitled to these rights and “shall
retain all rights not specifically denied him.” Neither section
5325 nor section 5327 refers to or expressly creates a private
cause of action.
Sections 5326.2 and 5326.5 define “voluntary informed
consent” and “written informed consent” with regard to
treatment and treatment options. Neither provision refers to or
expressly creates a cause of action.
Section 5328 provides that all information and records
obtained in the course of providing services under the Act are
confidential and prescribes the circumstances in which such
information may be disclosed. Section 5328 does not create a
private cause of action. Section 5330 does create a private right
of action for damages against an individual who willfully and
knowingly releases confidential information or records concerning
him or her in violation of the Act, but Julian neither identifies
this section as a basis for her cause of action nor alleges the
police defendants (who she alleges violated section 5328) willfully
and knowingly disclosed any confidential information about her.
Finally, section 5332 sets forth the circumstances in which
antipsychotic medication may be administered to a person
involuntarily detained under section 5150. Again, this section
neither refers to nor expressly creates a private right of action,
and Julian does not allege she was actually administered any
medication by the hospital defendants.8
8 Julian also alleged the police defendants violated section
5157, which the Legislature repealed before she filed her third
amended complaint. (See Stats. 2013, ch. 567, § 9.) Section 5157
22
None of these provisions suggests an unmistakable
legislative intent to create a private cause of action for any of the
statutory violations Julian alleged. (See Lu, supra, 50 Cal.4th at
p. 598 [concluding the statutory language in that case did not
“‘“unmistakabl[y]”’ reveal a legislative intent to provide . . . a
private right to sue”].) A court may still find a private cause of
action if the Act contains provisions creating some ambiguity
regarding whether the Legislature intended to create a private
right of action and the Act’s legislative history affirmatively
indicates such an intent. (See Lu, at p. 598; Noe, supra, 237
Cal.App.4th at pp. 336-337.) Julian, however, does not point to
any such ambiguity in the relevant provisions of the Act or cite
any such legislative history.
Julian argues the rights created by the Act “must be
enforceable to be meaningful” and the statute’s reference to a
patient’s attorney “27 times” in sections 5325 through 5337
“contemplates private enforcement.” As noted, some provisions of
the Act do create a private right of action, such as section 5150,
subdivision (e), and section 5150.05, subdivision (c). These
provisions, along with sections 5203, 5259.1, 5265, 5270.40, and
5330, create causes of action in specific circumstances not
relevant here. Significantly, the fact the Legislature established
private rights of action to remedy violations of these provisions,
but not for violations of the provisions Julian alleged the
required the peace officer or mental health professional who took
the individual into custody under section 5150 to give that
individual certain information about his or her detention. It did
not refer to or create a private cause of action. Some of the
information previously required by section 5157 is now required
under section 5150, subdivisions (g)-(i).
23
defendants violated, is a strong indication Julian does not have a
private right of action for her claims under the Act. (See Rosales
v. City of Los Angeles (2000) 82 Cal.App.4th 419, 427-428
[statutory scheme governing disclosure of police personnel
records did not create a private right of action where the
Legislature did not include such a right in the statute but did
create private rights of action in similar contexts in other
statutes (including § 5330)]; see also Rosales, at p. 428 [“[g]iven
the comprehensiveness of the statutory scheme, the Legislature
could have easily provided a remedy if one was intended”].)
In addition, the Act provides a means of enforcing the
provisions Julian alleged the defendants violated, but not
through a private cause of action. Instead, the Act sets forth a
comprehensive scheme for its enforcement by the local director of
mental health, the Director of Health Care Services, or the
Director of State Hospitals, who may issue notices of violation to
offending facilities, revoke a facility’s designation and
authorization to evaluate and treat persons detained
involuntarily, and refer legal violations to a local district attorney
or the Attorney General for prosecution. (See § 5326.9.) When
legislation provides a comprehensive regulatory scheme for its
enforcement, courts generally conclude the Legislature intended
that remedy to be exclusive, unless the statutory language or
legislative history “clearly indicates an intent to create a private
right of action.” (Noe, supra, 237 Cal.App.4th at p. 337; see
Thurman, supra, 203 Cal.App.4th at p. 1132; see also County of
San Diego v. State (2008) 164 Cal.App.4th 580, 610-611
[“[g]enerally, when a new right is created by statute, a party
aggrieved by violation of the statute is limited to the statutory
24
remedy if one is provided”].) Again, the statutes Julian cites have
no such language or expression of legislative intent.
Moreover, aggrieved individuals can enforce the Act’s
provisions through other common law and statutory causes of
action, such as negligence, medical malpractice, false
imprisonment, assault, battery, declaratory relief, section 1983
for constitutional violations, and Civil Code section 52.1. (See,
e.g., Gonzalez v. Paradise Valley Hospital (2003) 111 Cal.App.4th
735 [negligence against a hospital and doctor arising out of the
death of a detainee during an involuntary 72-hour hold under
section 5150]; Jacobs, supra, 108 Cal.App.4th at p. 80 [negligence
against hospital for injuries sustained in a trip and fall incident
during a 72-hour hold under section 5150]; Ford, supra, 89
Cal.App.4th at p. 984 [malpractice against medical professionals
who released the plaintiff before the end of the 72-hour period
under the Act]; Riese v. St. Mary’s Hospital & Medical Center
(1987) 209 Cal.App.3d 1303 [class action seeking a declaration
that patients involuntarily committed to mental health facilities
must give informed consent to the use of antipsychotic drugs];
Hall v. City of Fremont (9th Cir. 2013) 520 Fed. Appx. 609[assault, battery, intentional infliction of emotional distress, false
arrest and imprisonment, and violation of section 1983 arising
out of a detention under section 5150]; see also Jackson v.
Cedars-Sinai Medical Center (1990) 220 Cal.App.3d 1315, 1322-
1323 [“the involuntary hospitalization in a mental institution ‘in
violation of [a predecessor of the Act] constitutes false
imprisonment,’” and “the use of force to accomplish an unlawful
detention can give rise to liability for assault and battery”], italics
omitted.) Thus, the absence of a private right of action to enforce
the provisions of the Act Julian alleged the defendants violated
25
did not leave her without remedies for those alleged violations.
(See Lu, supra, 50 Cal.4th at p. 603; cf. Skov v. U.S. Bank Nat.
Assn. (2012) 207 Cal.App.4th 690, 698 [recognizing a private
right of action under Civil Code section 2923.5 where, “unlike in
Lu, there are no statutes which provide either a penalty for
noncompliance with section 2923.5 or designate any
administrative agency with enforcement of the statute”].)9
Julian is correct that sections 5325 through 5337 refer to a
patient’s attorney numerous times, but only in contexts not
relevant to Julian’s claims. For example, section 5326.7
addresses the role of a patient’s attorney in providing informed
consent for convulsive treatments, and sections 5333 and 5334
concern capacity hearings to determine whether a patient should
be administered antipsychotic medication against his or her will.
Sections 5328 and 5326.1 address circumstances in which a
patient’s attorney may be authorized to receive a patient’s
confidential information and treatment records. None of these
provisions implies a legislative intent to create a private right of
action to enforce any provision of the Act Julian alleged the
9 Indeed, in all of the cases Julian cites that involved claims
arising from alleged violations of the Act, the claims at issue were
based on common law causes of action. (See, e.g., Brumfield v.
Munoz (S.D.Cal., Oct. 23, 2008, No. 08 CV 0958 WQH (NLS))
2008 WL 4748176 [negligence and malpractice]; Jacobs, supra,
108 Cal.App.4th 69 [negligence and premises liability]; Cruze,
supra, 105 Cal.App.4th 48 [malpractice, negligence, false
imprisonment, infliction of emotional distress, defamation, and
other torts]; Heater v. Southwood Psychiatric Center (1996) 42
Cal.App.4th 1068 [false imprisonment, assault and battery,
negligent and intentional infliction of emotional distress, medical
malpractice, libel, and conspiracy].)
26
defendants violated. Nor has Julian cited anything in the
legislative history of the Act that suggests private persons may
enforce those provisions.
Because the Act does not create a private right of action for
violations of the provisions Julian alleged the defendants
violated, she is not entitled to maintain her first cause of action
for violations of the Act against any of the defendants. Therefore,
the trial court did not err in granting the school defendants’
motion for summary adjudication on the first cause of action or in
sustaining without leave to amend the hospital defendants’
demurrers to that cause of action.10
D. The Trial Court Properly Granted the School
Defendants’ Motion for Summary Judgment on
Julian’s Civil Rights Claims
1. Federal Civil Rights Claim
Julian’s second cause of action alleged the school
defendants violated her civil rights under the First, Fourth, and
Ninth Amendments. The trial court granted the school
defendants’ motion for summary adjudication on this cause of
action, ruling they were entitled to qualified immunity for their
“on-the-job judgment calls” and Julian failed to “point to
published, dispositive case law that states ‘a clearly established
rule prohibiting the officer from acting as he did . . . [i]n the
10 Even if Julian could maintain a private right of action
against the school defendants for violation of the Act, the school
defendants would still be immune from liability under section
5278 because, as we will discuss, they had probable cause to
detain Julian.
27
circumstances presented to [the] officer.’” The trial court also
concluded undisputed evidence supported the school defendants’
actions in placing Julian on a 72-hour hold under section 5150.
Julian argues the trial court erred because there are triable
issues of material fact regarding whether the school defendants
had probable cause to detain her. According to Julian, “[t]here is
a long list of controverted facts about whether anyone could
rationally suspect [she] was acting bizarrely under the
circumstances such that it warranted a review by a psychiatric
facility to determine whether she was mentally disordered.”
a. Governing law
“Title 42 United States Code section 1983 provides in
relevant part: ‘Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.’” (Arce v.
County of Los Angeles (2012) 211 Cal.App.4th 1455, 1472.) “‘To
state a claim under [section] 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.’
[Citation.] ‘“State courts look to federal law to determine what
conduct will support an action under section 1983. [Citation.]’
[Citation.] ‘The threshold inquiry [in analyzing a section 1983
claim] is whether the evidence establishes that appellants have
28
been deprived of a constitutional right.’”’” (Arce, at pp. 1472-
1473.)
“[A] state is not a ‘person’ as that term is used in section
1983.” (Pierce v. San Mateo County Sheriff’s Department (2014)
232 Cal.App.4th 995, 1007; see Will v. Michigan Department of
State Police (1989) 491 U.S. 58, 71.) Whether a government unit
is considered an arm of the state is a federal question, “although
one ‘dependent on an analysis of state law.’” (Pierce, at p. 1009;
see McMillian v. Monroe County, Ala. (1997) 520 U.S. 781, 786.)
Cities, counties, and local officers sued in their official
capacity are “persons” for purposes of section 1983 and, “although
they cannot be held vicariously liable under section 1983 for their
subordinate officers’ unlawful acts, they may be held directly
liable for constitutional violations carried out under their own
regulations, policies, customs, or usages by persons having ‘final
policymaking authority’ over the actions at issue.” (Venegas v.
County of Los Angeles (2004) 32 Cal.4th 820, 829; see McMillian
v. Monroe County, supra, 520 U.S. at pp. 784-785; Monell v.
Department of Social Services of the City of New York (1978) 436
U.S. 658, 690-692.) Such actions “are commonly referred to as
‘policy or custom’ section 1983 cases against local governmental
entities and local officials acting in their official capacity.”
(Pierce, supra, 232 Cal.App.4th at p. 1007.)
Officers of a state, city, or county sued in their individual
capacity may be liable under section 1983 for violating an
individual’s constitutional rights. (Venegas, supra, 32 Cal.4th at
pp. 829, 839.) Qualified immunity, however, “shields public
officers from section 1983 actions unless the officer has violated a
clearly established constitutional right” (Mendoza v. City of West
Covina (2012) 206 Cal.App.4th 702, 711), which does not include
29
circumstances in which “reasonable officers in their position
would have believed their actions were lawful under established
law” (Venegas, at p. 839). (See Saucier v. Katz (2001) 533 U.S.
194, 201, overruled on other grounds by Pearson v. Callahan
(2009) 555 U.S. 223, 236.)
“In resolving questions of qualified immunity at summary
judgment, courts engage in a two-pronged inquiry.” (Tolan v.
Cotton (2014) __ U.S. __, __ [134 S.Ct. 1861, 1865].) “First,
‘[t]aken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a
constitutional right.’ [Citation.] ‘If no constitutional right would
have been violated were the allegations established,’ then the
qualified immunity inquiry ends. [Citation.] However, ‘if a
violation could be made out on a favorable view of the parties’
submissions, the next, sequential step is to ask whether the right
was clearly established. This inquiry, it is vital to note, must be
undertaken in light of the specific context of the case, not as a
broad, general proposition.’” (Mendoza, supra, 206 Cal.App.4th
at p. 711; see Tolan v. Cotton, supra, __ U.S. at p. __ [134 S.Ct. at
pp. 1865-1866].) The “first step analyzes whether a
constitutional right was violated, which is a question of fact. The
second examines whether the right was clearly established,
which is a question of law. Step two serves the aim of refining
the legal standard and is solely a question of law for the judge.”
(Tortu v. Las Vegas Metropolitan Police Dept. (9th Cir. 2009) 556
F.3d 1075, 1085; see Dunn v. Castro (9th Cir. 2010) 621 F.3d
1196, 1199.)
“A right is clearly established only if its contours are
sufficiently clear that ‘a reasonable official would understand
that what he is doing violates that right.’ [Citation.] In other
30
words, ‘existing precedent must have placed the statutory or
constitutional question beyond debate.’ [Citation.] This doctrine
‘gives government officials breathing room to make reasonable
but mistaken judgments.’” (Carroll v. Carman (2014) __ U.S. __,
__ [135 S.Ct. 348, 350]; see Saucier, supra, 533 U.S. at pp. 202,
206; Marshall v. County of San Diego (2015) 238 Cal.App.4th
1095, 1108.) “When properly applied, [qualified immunity]
protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” (Ashcroft v. al-Kidd (2011) 563 U.S. 731, 743;
see Carroll, __ U.S. at p. __ [135 S.Ct. at p. 350]; see Marshall, at
p. 1108.)
“[C]ourts have discretion to decide which of the two prongs
of qualified-immunity analysis to tackle first.” (Ashcroft, supra,563 U.S. at p. 735; see Mendoza, supra, 206 Cal.App.4th at
p. 711, fn. 9.) And “[c]ourts should think carefully before
expending ‘scarce judicial resources’ to resolve difficult and novel
questions of constitutional or statutory interpretation that will
‘have no effect on the outcome of the case’” (Ashcroft, at p. 735),
especially in “cases in which the briefing of constitutional
questions is woefully inadequate” (Pearson, supra, 555 U.S. at
p. 239).
Although the United States Supreme Court has left “open
the issue of the burden of persuasion . . . with respect to a defense
of qualified immunity” (Gomez v. Toledo (1980) 446 U.S. 635, 642
(conc. opn. of Rehnquist, J.)), the Courts of Appeals generally
agree that, on a defendant’s motion for summary judgment, the
plaintiff “bears the burden of showing that the right at issue was
clearly established.” (Alston v. Read (9th Cir. 2011) 663 F.3d
1094, 1098; see, e.g., Keith v. Koerner (10th Cir. 2016) 843 F.3d
833, 837; Mendez v. Poitevent (5th Cir. 2016) 823 F.3d 326, 331;
31
Rivera-Corraliza v. Morales (1st Cir. 2015) 794 F.3d 208, 214;
Hess v. Ables (8th Cir. 2013) 714 F.3d 1048, 1051; Morton v.
Kirkwood (11th Cir. 2013) 707 F.3d 1276, 1280-1281; Donahue v.
Gavin (3d Cir. 2002) 280 F.3d 371, 378; Sledd v. Lindsay (7th Cir.
1996) 102 F.3d 282, 287.)
b. Julian did not state a section 1983 claim
for constitutional violations against the
LAUSD or LAUSP
Julian does not argue LAUSD and LAUSP are local
government units subject to liability under section 1983 for their
policies or customs rather than state agencies that are not
“persons” under the statute. Indeed, state and federal courts
have uniformly held that California school districts, including
LAUSD, are state agencies and thus not “persons” for purposes of
section 1983. (See, e.g., McAllister v. Los Angeles Unified School
District (2013) 216 Cal.App.4th 1198, 1207; Kirchmann v. Lake
Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1115;
C.W. v. Capistrano Unified School Dist. (9th Cir.2015) 784 F.3d
1237, 1247; Belanger v. Madera Unified School Dist. (9th Cir.
1992) 963 F.2d 248, 253; Sato v. Orange County Dept. of
Education (C.D.Cal., July 6, 2015, No. SACV 15-00311-JLS) 2015
WL 4078195, at p. 5 [citing cases].) Julian alleges, and LAUSD
concedes, LAUSP “is a division of the LAUSD.” Thus, it also
operates as an arm of the state and is not a “person” under
section 1983.
Even if the LAUSD and LAUSP were “persons” for
purposes of section 1983, Julian did not state a claim against
them. Government entities are liable under section 1983 only
where their “regulations, policies, customs, or usages by persons
32
having ‘final policymaking authority’” violate another’s
constitutional rights. (Venegas, supra, 32 Cal.4th at p. 829; see
Monell, supra, 436 U.S. 658 at pp. 690-692.) Julian’s third
amended complaint did not identify any such regulation, policy,
or custom that allegedly violated the constitutional rights Julian
identifies. Therefore, the trial court properly granted summary
adjudication on this cause of action against LAUSD and LAUSP.
c. Julian did not state a section 1983 claim
for constitutional violations against the
individual police defendants
Julian alleged three federal constitutional violations
against the individual police defendants. They were (1) violation
of her First Amendment right “to speak out about the wrongful
actions of the police department without being coerced into
silence by means of falsely labeling her as a person with a mental
disorder and dangerous”; (2) violation of her Fourth Amendment
right “to be free from seizure and or detention absent a warrant
or other established legal justification properly applied”; and (3)
violation of her “Unenumerated Ninth Amendment right . . . to be
properly cared for by physicians when in custody.”
With regard to the alleged First Amendment violation,
Julian alleged no facts suggesting she was ever “silence[d].” In
fact, Julian alleged and the uncontested evidence showed she
spoke and even screamed throughout much of her encounter with
the police defendants. With respect to Julian’s alleged Ninth
Amendment violation, Julian cites no case establishing a right
under that constitutional provision “to be properly cared for by
physicians when in custody.” In any event, it is unclear how the
police defendants, who Julian did not allege are physicians or
33
acted as physicians under the color of law, could have violated
any such right.
Julian did have a constitutional right under the Fourth
Amendment to be free from involuntary detention without
probable cause. (Bias v. Moynihan (9th. Cir. 2007) 508 F.3d
1212, 1220; see People v. Triplett (1983) 144 Cal.App.3d 283, 287
& fn. 6 [involuntary detention pursuant to section 5150 without
probable cause may violate the Fourth Amendment].) Therefore,
the issue is whether the undisputed facts demonstrated that a
reasonable officer would have believed there was probable cause
to detain Julian under section 5150. (See Bias, at pp. 1219-1220.)
“Probable cause exists under section 5150 if facts are
known to the officer ‘that would lead a person of ordinary care
and prudence to believe, or to entertain a strong suspicion, that
the person detained is mentally disordered and is a danger to
himself or herself.’” (Bias, supra, 508 F.3d at p. 1220; see Heater
v. Southwood Psychiatric Center (1996) 42 Cal.App.4th 1068,
1080; Triplett, supra, 144 Cal.App.3d at pp. 287-288.) “To justify
the detention, the officer must point to ‘specific and articulable
facts which, taken together with rational inferences from those
facts, reasonably warrant his or her belief or suspicion.’” (Bias,
at p. 1220; see Triplett, at p. 288.) “‘Each case must be decided on
the facts and circumstances presented to the officer at the time of
the detention and the officer is justified in taking into account the
past conduct, character, and reputation of the detainee.’” (Bias,
at p. 1220; see Triplett, at pp. 287, fn. 6 & 288.) In determining
whether there is probable cause, “[a] peace officer . . . is not
required to make a medical diagnosis of mental disorder. It is
sufficient if the officer, as a lay person, can articulate behavioral
symptoms of mental disorder . . . . [G]enerally, mental disorder
34
might be exhibited if a person’s thought processes, as evidenced
by words or actions or emotional affect, are bizarre or
inappropriate for the circumstances.” (Triplett, at p. 288.)
Here, prior to detaining Julian, Sergeant Taylor learned
Julian had told a close friend she was going to slit her wrists,
Julian had marks on her wrists Sergeant Taylor believed may
have evidenced previous suicide attempts, and Julian could be
suicidal. Because he was aware Julian disliked Officer Valencia,
Sergeant Taylor and Castro agreed to approach Julian without
Officer Valencia. When they did, Julian dropped to the floor and
screamed “get away from me,” even though Castro told her they
were there only to get a statement from her about the assault she
had reported. Sergeant Taylor asked Julian to calm down and
told her she was safe, but she began screaming “even louder.”
Sergeant Taylor called for an ambulance because he had
concluded Julian was a danger to herself and the children and
employees at the school. The application for a 72-hour detention
that Officer Valencia presented to the hospital summarized these
facts, stating Julian “went out of control” when the school police
approached her about a criminal investigation, had previously
“made statements to [an]other school staff member that she
wanted to cut her wrist,” and had “6 to 8 cuts” on her wrists.
These uncontested facts support a finding of probable
cause.11 (See Triplett, supra, 144 Cal.App.3d at p. 288 [“obvious
11 Julian contends that probable cause cannot be determined
on summary judgment, but does not cite any case in support of
this contention. Many cases hold otherwise. (See, e.g., Cruze,
supra, 105 Cal.App.4th at p. 58; Bias, supra, 508 F.3d at p. 1221;
Palter v. City of Garden Grove (9th Cir. 2007) 237 Fed. Appx. 170,
172.)
35
physical signs of a recent suicide attempt” coupled with the
detainee’s intoxication and “tearful” condition “would lead any
person of ordinary care and prudence to believe that [the
detainee] as a result of mental disorder was a danger to herself”];
Bias, supra, 508 F.3d at p. 1221 [probable cause existed where
the detainee alluded to suicide and paranoid thoughts, and later
“became combative” and grabbed an officer while appearing
“visibly angry” and “agitated”]; Palter v. City of Garden Grove
(9th Cir. 2007) 237 Fed. Appx. 170, 172 [probable cause existed
where a neighbor told an officer the detainee alluded to suicide,
had a gun, and was going to his daughter’s home to leave a
“goodbye” note, even though the detainee told the officer he did
not intend to hurt himself and did not have a gun].) “Probable
cause does not mean certain cause, and the purpose of the
psychiatric evaluation [under section 5150] is to have
professionals skilled at evaluating mental state take some
responsibility for assessing whether [a detainee] was in danger.”
(Palter, at p. 172.) Sergeant Taylor had probable cause under the
totality of the circumstances to believe Julian was a danger to
herself and others and to detain her so that medical professionals
could assess her.
Julian argues that “a long list of controverted facts”
precluded summary judgment. For example, she points out
Castro had “discounted” the text message Ibrahim sent to Castro
stating that Julian wanted to “slit her wrists.” Julian, however,
does not dispute Castro shared the text message with an LAUSD
crisis counselor who in turn shared it with Sergeant Taylor, nor
does Julian dispute Sergeant Taylor properly took that text
message into account in determining whether there was probable
cause to detain Julian. (See Bias, supra, 508 F.3d at p. 1220 [in
36
determining probable cause, an officer may consider the
detainee’s past conduct, character, and reputation]; accord,
Triplett, supra, 144 Cal.App.3d at pp. 287-288 & fn. 6.) Even if
Castro discounted the text message, that did not preclude
Sergeant Taylor from taking the text message into account in
evaluating Julian’s mental state. And Castro did not entirely
discount Julian’s text; she told LAUSD’s crisis counselor about it
despite having previously concluded Julian was not suicidal. (See
Bias, at p. 1219 [rejecting the detainee’s argument that the court
should construe a letter stating “I shall kill myself” as hyperbole
because the statement was not presented as a joke or a figure of
speech].)
Similarly, Julian repeatedly relies on her assertion the
scratches on her arms were made by her cats and were not
evidence of past suicide attempts. While Julian might have
known the scratches were from her cats, she presented no
evidence Castro, LAUSD’s crisis counselor, or Sergeant Taylor
knew they were. And Julian could have said her cats scratched
her and actually made the marks herself. Indeed, a person of
ordinary care and prudence easily could have concluded or
entertained a strong suspicion the scratches were “hesitation
marks,” which result “when a person contemplating suicide cuts
his or her wrist to see how much pain is involved.” (Triplett,
supra, 144 Cal.App.3d at p. 285; see People v. Lightsey (2012) 54
Cal.4th 668, 675 [“superficial ‘hesitation wounds’” indicated the
decedent may have committed suicide]; People v. Steele (2002) 27
Cal.4th 1230, 1275 [wounds indicating hesitation are suggestive
of suicide rather than homicide].) Julian states the difference
between her cat scratches and “recently self inflicted cuts was
obvious,” but her self-assessment does not negate the fact that a
37
reasonable person in Sergeant Taylor’s position could have
concluded otherwise and reasonably construed the scratches on
her arms as evidence of a suicidal tendency.
Julian also contends that the school police knew of her
fears of police in general and of a prior incident where she
“responded in a similar fashion at the school, sitting against the
wall to assure her safety,” and that the police “acted pursuant to
their own plan founded upon some irrational prejudice in their
thinking.” Julian essentially argues the school police conspired
to detain her involuntarily by “fabricating a situation.” Although
it is unclear whether Julian intended to allege civil conspiracy
under California state law or conspiracy to violate her
constitutional rights, in either case her allegations of a
conspiracy are not actionable.
Under California law, “[t]here is no separate tort of civil
conspiracy and no action for conspiracy to commit a tort unless
the underlying tort is committed and damage results therefrom.”
(Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223
Cal.App.4th 1105, 1136; accord, Kenne v. Stennis (2014) 230
Cal.App.4th 953, 968; see Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1062 [stating the elements of civil conspiracy].) Similarly,
under federal law, a conspiracy, even if established, “does not
give rise to liability under [section] 1983 unless there is an actual
deprivation of civil rights” resulting from the conspiracy.
(Woodrum v. Woodward County, Okl. (9th Cir. 1989) 866 F.2d
1121, 1126; see Hernandez v. City of Napa (N.D. Cal. 2011) 781
F.Supp.2d 975, 997.) Because ultimately Julian did not allege
any state tort cause of action and cannot show any actual
deprivation of her constitutional rights resulted from the alleged
conspiracy, the alleged conspiracy is not actionable. (See Kenne,
38
at pp. 968-969 [“a bare conspiracy, without the commission of
some underlying tort by a coconspirator is not actionable”];
Woodrum, at p. 1126 [plaintiffs cannot succeed on conspiracy
claim without establishing a violation of their constitutional
rights]; see also Hart v. Parks (9th Cir. 2006) 450 F.3d 1059, 1071
[affirming summary judgment on a claim that officers conspired
to violate the plaintiff’s constitutional rights where the officers
had probable cause to arrest him].)12
2. State Civil Rights Claims
Julian’s third cause of action alleged two causes of action,
one based on alleged violations of the California Constitution and
12 In addition to arguing these facts undermine the trial
court’s conclusion that the police defendants had probable cause
to detain Julian, Julian’s briefs cite various pages of her
opposition to the motion for summary judgment, her separate
statement, and her declaration in the trial court. As the
appellant, however, Julian has the burden to demonstrate error
by “‘presenting legal authority on each point made and factual
analysis, supported by appropriate citations to the material facts
in the record; otherwise, the argument may be deemed forfeited.’”
(Salehi v. Surfside III Condominium Owners’ Assn. (2011) 200
Cal.App.4th 1146, 1161-1162; accord, Keyes v. Bowen (2010) 189
Cal.App.4th 647, 655-656.) Julian may not simply “‘incorporate
by reference arguments made in papers filed in the trial court,
rather than briefing them on appeal.’” (Salehi, at p. 1162; see
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
294, fn. 20 [“[i]t is well settled that the Court of Appeal does not
permit incorporation by reference of documents filed in the trial
court”]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293,
1301, fn. 2 [“it is not appropriate to incorporate by reference, into
a brief, points and authorities contained in trial court papers,
even if such papers are made a part of the appellate record”].)
39
one based on Civil Code section 52.1, the Tom Bane Civil Rights
Act (the Bane Act). (See Shoyoye v. County of Los Angeles (2012)
203 Cal.App.4th 947, 950.) She alleged (1) the school defendants
violated her civil rights under the California Constitution,
including by violating article I, sections 1, 2, 3, 7, and 13; and (2)
the school police defendants interfered or attempted to interfere
by threats, intimidation or coercion, with Julian’s exercise or
enjoyment of her state and federal constitutional rights and other
legal rights as alleged in her complaint.
The trial court granted the school defendants’ motion for
summary adjudication on this cause of action, ruling they were
immune from civil liability under section 5278 and Government
Code 821.6. Julian argues that the school defendants are not
immune under section 5278 because they did not exercise their
authority “in accordance with the law” as required by that
statute, and that factual disputes precluded summary judgment
on the basis of Government Code section 821.6.
a. Alleged state constitutional violations
There is no cause of action for damages for alleged
violations of California Constitution, article I, section 2,
subdivision (a) (freedom of speech), article I, section 3,
subdivision (a) (right to petition the government),13 or article I,
section 7, subdivision (a) (due process and equal protection),
when such an action is not tied to an established common law or
13 Article I, section 3, subdivision (b), provides for the right to
have access to information concerning the conduct of the people’s
business. Julian did not allege any facts that would constitute a
violation of this right even if it provided for a private cause of
action for damages.
40
statutory action, and Julian alleges no such cause of action. (See
Degrassi v. Cook (2002) 29 Cal.4th 333, 335 & fn. 1 [freedom of
speech]; Katzberg v. Regents of University of California (2002) 29
Cal.4th 300, 303 & fn. 1, 321 [due process and equal protection];
McAllister, supra, 216 Cal.App.4th at p. 1215 [freedom of speech];
MHC Financing Ltd. Partnership Two v. City of Santee (2010)
182 Cal.App.4th 1169, 1188 [right to petition]; Javor v. Taggart
(2002) 98 Cal.App.4th 795, 807 [due process and equal
protection].)
Whether there is a cause of action for damages for
violations of the right to privacy under article I, section 1, of the
California Constitution is not entirely settled. (Compare
Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286 [citing
Katzberg for the proposition “it is an open question whether the
state constitutional privacy provision, which is otherwise self-
executing and serves as the basis for injunctive relief, can also
provide direct and sole support for a damages claim”] with
Clausing v. San Francisco Unified School Dist. (1990) 221
Cal.App.3d 1224, 1238 [holding there is no cause of action for
damages under article I, section 1, because that provision does
not impose a mandatory duty on public entities to protect a
citizen’s right to privacy].) In any event, Julian failed to state the
elements of a cause of action for invasion of privacy: a legally
protected privacy interest in which she has a reasonable
expectation of privacy under the circumstances and a serious
invasion of that privacy interest. (See Sheehan v. San Francisco
49ers, Ltd. (2009) 45 Cal.4th 992, 998; Hill v. National Collegiate
Athletic Association (1994) 7 Cal.4th 1, 35-37.) Therefore, the
trial court did not err in granting summary adjudication on
41
Julian’s cause of action for damages against the school
defendants under article I, sections 1, 2, 3, and 7.
The California Supreme Court has also not decided
whether there is a private cause of action for damages under
article I, section 13, which protects against unreasonable
searches and seizures, and federal courts are divided on this
question. (See Smith v. County of Los Angeles (C.D.Cal. Mar. 25,
2015, No. CV 11-10666 DDP (PJWx)) 2015 WL 1383539, at p. 7
[“[a]s to art. 1, § 13, the Court recognizes that there is a split of
authority as to whether the provision is ‘self-executing,’ in the
sense of providing a freestanding cause of action for damages,”
and citing cases]; OSJ PEP Tennessee LLC v. Harris (C.D.Cal.
Oct. 7, 2014, No. CV 14-03741 DDP (MANx)) 2014 WL 4988070,
at p. 6 [“[f]ederal courts in California have reached contradictory
conclusions about whether such a tort based on [section] 13
actually exists,” and citing cases].) We need not decide that
question here because, even if there is a cause of action for
damages under article 1, section 13, the school defendants would
be immune from liability under section 5278.
Section 5278 provides in part: “Individuals authorized
under this part to detain a person for 72-hour treatment and
evaluation pursuant to Article 1 (commencing with Section
5150) . . . shall not be held either criminally or civilly liable for
exercising this authority in accordance with the law.” Julian did
not allege the school defendants were not authorized to detain
her under section 5150. She alleged they exercised their
authority outside the bounds of the law by detaining her without
probable cause.
The immunity under section 5278 is not absolute. In
enacting the statute, the Legislature “intended to provide
42
immunity for claims based on conduct that is expressly
authorized by the [Act] but would otherwise constitute a civil or
criminal wrong.” (Jacobs, supra, 108 Cal.App.4th at p. 78.)
Thus, “the scope of section 5278 immunity extends to claims
based on facts that are inherent in an involuntary detention
pursuant to section 5150. If there is probable cause for the
detention, the statute therefore provides immunity for the
decision to detain as well as for the detention and its inherent
attributes, including the fact that the patient must necessarily be
evaluated and treated without consent. These are all inherent
aspects of the statutory scheme and thus cannot provide the basis
for a civil suit.” (Jacobs, at pp. 78-79.) The “protected conduct,”
however, “is confined to the exercise of statutory authority to
detain, evaluate and treat against the patient’s wishes, and does
not extend to the manner in which evaluation and treatment are
carried out.” (Gonzalez, supra, 111 Cal.App.4th at p. 741.) Thus,
immunity under section 5278 does not extend to “negligent acts,
intentional torts, or criminal wrongs committed during the course
of the detention, evaluation, or treatment.” (Gonzales, at p. 742;
see also Jacobs, at p. 79.)
Julian alleged her detention was improper because the
school defendants lacked probable cause, the police officers
“fabricated” the circumstances in which they detained her, and
the officers used excessive force in restraining her. As explained,
however, the police defendants had probable cause to detain
Julian, and neither the complaint nor Julian’s briefs explain how
the police defendants used excessive force, except to argue that
the use of any force was excessive because the school defendants
lacked probable cause.
43
With regard to the alleged conspiracy, Julian’s allegations
and arguments contradict evidence she submitted in opposition to
the motion for summary judgment and fail to sufficiently allege a
conspiracy. In particular, the so-called “Castro timeline” Julian
attached to her declaration states that Officer Valencia, contrary
to “orchestrating” any conspiracy, voluntarily recused herself
from questioning Julian and asked the school police to call in
another officer because she knew Julian disliked her. When
Castro learned the identity of the replacement officer, she asked
Officer Valencia to call for yet another replacement because
Castro “knew [Julian] had a previous incident with [that officer]
and [she] would upset her even more if he came to take her
report.” Officer Valencia agreed, and Sergeant Taylor arrived to
question Julian. Julian alleged the five officers who detained her
somehow colluded before the detention and agreed to call an
ambulance in advance, but she did not contradict the evidence
showing that, to the contrary, the decision to question her was
made by Castro, the LAUSD crisis counselor, and Sergeant
Taylor.
Moreover, Julian submitted no evidence explaining when,
how, or why this conspiracy came into existence. Indeed, it was
Julian who set the events of the day in motion by lodging a
complaint against another teacher. “For liability to attach [for a
civil conspiracy], knowledge of the planned tort must be combined
with intent to aid in its commission. [Citation.] ‘While
knowledge and intent “may be inferred from the nature of the
acts done, the relation of the parties, the interest of the alleged
conspirators, and other circumstances” [citation], “‘[c]onspiracies
cannot be established by suspicions. There must be some
evidence. Mere association does not make a conspiracy. There
44
must be evidence of some participation or interest in the
commission of the offense.’”’” (Contreras v. Dowling (2016) 4
Cal.App.5th 774, 795; accord, Kidron v. Movie Acquisition Corp.
(1995) 40 Cal.App.4th 1571, 1582; see Code Civ. Proc., § 437c,
subd. (p)(2) [“[t]he plaintiff . . . shall not rely upon the allegations
. . . of its pleadings to show that a triable issue of material fact
exists but, instead, shall set forth the specific facts showing that
a triable issue of material fact exists as to the cause of action”].)
Neither Julian’s allegations nor the evidence she submitted in
opposition to the school defendants’ motion for summary
judgment suggested any conspiracy to detain her.
Because the school defendants had probable cause to detain
Julian and there was no triable issue of fact regarding whether
the school defendants exercised their authority in accordance
with the law, they are immune from liability for any violation of
Julian’s right to be free from unreasonable searches and seizures
under article 1, section 13 of the California Constitution. The
trial court properly granted summary adjudication on this cause
of action.
b. Alleged Bane Act violations
Julian also alleged the individual police officers violated
the Bane Act by improperly interfering with her constitutional
rights through threats, intimidation, or coercion. Civil Code
section 52.1 provides a private right of action for damages against
any person, “whether or not acting under color of law,” who
“interferes” or “attempts to interfere by threat, intimidation, or
coercion, with the exercise or enjoyment by any individual or
individuals of rights secured by the Constitution or laws of the
45
United States, or of the rights secured by the Constitution or
laws [of California].”
“A defendant is liable [under the Bane Act] if he or she
interfered with or attempted to interfere with the plaintiff’s
constitutional rights by the requisite threats, intimidation, or
coercion.” (Shoyoye, supra, 203 Cal.App.4th at p. 956; see
Venegas, supra, 32 Cal.4th at pp. 841-843.) “[T]he statute was
intended to address only egregious interferences with
constitutional rights, not just any tort. The act of interference
with a constitutional right must itself be deliberate or spiteful.”
(Shoyoye, at p. 959.) Thus, where the plaintiff alleges wrongful
detention, the statute requires a showing of threatening conduct
independent from the alleged wrongful detention. (Ibid.; see Doe
v. State (2017) 8 Cal.App.5th 832, 842-843; Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 69.) The plaintiff must
show “the defendant interfered with or attempted to interfere
with the plaintiff’s legal right by threatening or committing
violent acts.” (Doe v. State, at p. 842; see Austin B. v. Escondido
Union School Dist. (2007) 149 Cal.App.4th 860, 881-882; see
generally Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.)
Speech is insufficient to establish the requisite threat unless it
includes threat of violence. (Shoyoye, at p. 958, citing Civ. Code,
§ 52.1, subd. (j).)
Here, other than the actions necessary to detain Julian,
which the police had probable cause to take, Julian alleged
without explanation that the police defendants “engaged in
tactics to scare” her. “[C]onclusory allegations of ‘forcible’ and
‘coercive’ interference with plaintiffs’ constitutional rights are
inadequate to state a cause of action for a violation of section
52.1.” (Allen, supra, 234 Cal.App.4th at p. 69.) The trial court
46
properly granted summary adjudication on this cause of action as
well.
E. The Trial Court Properly Sustained the Hospital
Defendants’ Demurrers Without Leave To Amend
The trial court sustained the hospital defendants’
demurrers without leave to amend. The trial court concluded
section 5278 barred Julian’s claims against the hospital
defendants, and the court ruled Julian failed to allege the
hospital defendants acted under the color of law or had any role
in violating Julian’s civil rights. Julian challenges these rulings.
We find no error.14
1. Federal Civil Rights Claim
As noted, to state a claim under section 1983, the plaintiff
must allege that a person acting under color of state law deprived
him or her of a federally guaranteed right. (Naffe v. Frey
(9th Cir. 2015) 789 F.3d 1030, 1035-1036; Anderson v. Warner
(9th Cir. 2006) 451 F.3d 1063, 1067.) “While generally not
applicable to private parties, a § 1983 action can lie against a
private party when ‘he is a willful participant in joint action with
the State or its agents.’” (Kirtley v. Rainey (9th Cir. 2003) 326
F.3d 1088, 1092; accord Peng v. Mei Chin Penghu (9th Cir. 2003)
335 F.3d 970, 980.)
Federal law governs whether a private party is a state
actor, and we review a trial court’s resolution of this question
de novo. (See Caviness v. Horizon Community Learning Center,
14 As noted, Julian’s first cause of action for violation of the
Act did not state a claim because there is no private right of
action for the alleged violations.
47
Inc. (9th Cir. 2010) 590 F.3d 806, 811; Lee v. Katz (9th Cir. 2002)
276 F.3d 550, 553-554; see also In re Christopher H. (1991) 227
Cal.App.3d 1567, 1576 [federal law determines whether there has
been state action for purposes of applying the Fourth
Amendment].) “We start with the presumption that conduct by
private actors is not state action.” (Florer v. Congregation Pidyon
Shevuyim, N.A. (9th Cir. 2011) 639 F.3d 916, 922; see Sutton v.
Providence St. Joseph Medical Center (9th Cir. 1999) 192 F.3d
826, 835.) Julian had the burden of establishing that the hospital
defendants were state actors. (Florer, at p. 922; see Flagg Bros.,
Inc. v. Brooks (1978) 436 U.S. 149, 156.)
Julian acknowledged the hospital defendants are private
entities or individuals, but alleged they acted under color of law
when they detained and assessed her. In particular, Julian
alleged that the hospital acted under color of law because the
County of Los Angeles designated the hospital as a facility
authorized to accept and detain individuals under the Act, and
that the hospital acted pursuant to this authority when it
detained her. Julian alleged Dr. Shirazi acted under color of law
“through the authority” of the hospital. The hospital defendants
contend these allegations were insufficient to constitute acting
under color of law.
The Ninth Circuit has articulated four tests for
determining whether a private person acted under color of law:
(1) the public function test, (2) the joint action test, (3) the
government nexus test, and (4) the government coercion or
compulsion test. (Kirtley, supra, 326 F.3d at p. 1092; Franklin v.
Fox (9th Cir. 2002) 312 F.3d 423, 445.) “Satisfaction of any one
test is sufficient to find state action, so long as no countervailing
factor exists.” (Kirtley, at p. 1092; accord, Florer, supra, 639 F.3d
48at p. 924.) “‘[N]o one fact can function as a necessary condition
across the board for finding state action; nor is any set of
circumstances absolutely sufficient, for there may be some
countervailing reason against attributing activity to the
government.’” (Florer, at p. 924; see Brentwood Academy v.
Tennessee Secondary School Athletic Assn. (2001) 531 U.S. 288,
295-296.) Julian’s allegations against the hospital defendants did
not satisfy any of these tests.
Under the public function test, a private party’s conduct
constitutes state action when the private party exercises powers
that are “‘traditionally the exclusive prerogative of the State.’”
(Caviness, supra, 590 F.3d at p. 814; see Sturm v. El Camino
Hospital (N.D.Cal., Feb. 26, 2010, No. C-09-02324 RMW) 2010
WL 725563, at p. 3.) “‘[W]hen private individuals or groups are
endowed by the State with powers or functions governmental in
nature, they become agencies or instrumentalities of the State
and subject to its constitutional limitations.’” (Florer, supra, 639
F.3d at p. 924; see Kirtley, supra, 326 F.3d at p. 1093.) “[T]he fact
that the government has granted a private entity certain powers
and privileges under the law,” however, “is insufficient to make
the private entity’s conduct state action.” (Sturm, at p. 3; see
Caviness, at p. 814.) Instead, the “challenged ‘function at issue
must be both traditionally and exclusively governmental.’”
(Caviness, at p. 814.)
The allegations in Julian’s complaint were insufficient to
raise a reasonable inference that the detention, evaluation, and
treatment of mentally disordered individuals are functions within
the exclusive prerogative of the state. Indeed, the Act refined a
system the Legislature originally enacted in 1957 in which
private community hospitals could provide mental health
49
services, including by detaining, assessing, and treating certain
individuals, without the involvement of any state official or
entity. (See William M. Burke, The Need for Reform in the
California Civil Commitment Procedure (1967) 19 Stan. L. Rev.
992, 1003-1004 [describing the Act’s predecessor, the Short-Doyle
Act].) That system continues under the Act. (See § 5150, subd.
(a) [authorizing certain private persons, including a “professional
person in charge of a facility designated by the county,” to detain
individuals]; § 5150, subd. (c) [authorizing certain private persons
to “assess the [individual] to determine whether he or she can be
properly served without being detained”].) Health and Safety
Code section 1799.111 also allows a licensed general acute care
hospital and any physician or surgeon providing emergency
medical services in any department of such a hospital to detain a
person under the circumstances described in section 5150 for up
to 24 hours. Thus, under the Act, the detention, assessment, and
treatment of mentally disordered persons is not within the
exclusive province or prerogative of the state. (See generally Doe
v. Rosenberg (S.D.N.Y. 1998) 996 F.Supp. 343, 356 [“[h]istory
reveals that involuntary commitment has long been a private
remedy, although subject to safeguards”]; Salter, Toward
Community Mental Health: A History of State Policy in
California, 1939-1969 (1978), p. 338 [the Act “allowed the
community treatment system to detain an individual under
certain conditions, for a total of 17 days without a court order;
this gave the treatment group freedom to exercise professional
judgment and to observe and treat an individual without court
interference for a limited period”].)
Contrary to Julian’s contention, the fact that state laws
authorize and regulate such actions does not, without more,
50
transform private activity into state action. (See Caviness, supra,
590 F.3d at p. 814 [private corporation that operated a public
charter school subject to state regulation was not a state actor
merely because state law characterized all charter schools as
“public schools”]; Sturm, supra, 2010 WL 725563 at p. 3 [“[b]y
detaining plaintiff for mental health treatment and evaluation,
the private parties involved did not exercise power that is
‘traditionally the exclusive prerogative of the State’”]; see also
Doe v. Rosenberg, supra, 996 F.Supp. at p. 356 [“[t]hat the State
can authorize commitment through its parens patriae or police
powers does not make it the exclusive prerogative of the State”].)
Under the joint action test, “‘courts examine whether state
officials and private parties have acted in concert in effecting a
particular deprivation of constitutional rights.’” (Franklin, supra,
312 F.3d at p. 445.) “The test focuses on whether the state has
‘“so far insinuated itself into a position of interdependence with
[the private actor] that [the private actor] must be recognized as
a joint participant in the challenged activity.”’” (Ibid.; see Florer,
supra, 639 F.3d at p. 926; Kirtley, supra, 326 F.3d at p. 1093.) “A
plaintiff may demonstrate joint action by proving the existence of
a conspiracy or by showing that the private party was ‘a willful
participant in joint action with the State or its agents.’”
(Franklin, at p. 445.)
Julian did not allege any joint action or conspiracy between
state officials and the hospital defendants. She alleged only that
the county designated the hospital as a facility that may hold
individuals under section 5150 and that Dr. Shirazi treated her
with the hospital’s authorization. Such allegations were
insufficient to transform the conduct of the hospital defendants
51
“into state action under the joint action test.” (Sturm, supra,
2010 WL 725563 at p. 3.)
The government nexus test asks whether “‘there is such a
close nexus between the State and the challenged action that the
seemingly private behavior may be fairly treated as that of the
State itself.’” (Kirtley, supra, 326 F.3d at p. 1095; see Brentwood
Academy, supra, 531 U.S. at p. 295.) It is similar to the joint
action test in that both tests require that the state is “so far
insinuated into a position of interdependence with the [private
party] that it was a joint participant in the enterprise.” (Jackson
v. Metropolitan Edison Co. (1974) 419 U.S. 345, 351; see Jensen v.
Lane County (9th Cir. 2000) 222 F.3d 570, 574 [referring to a dual
“‘close nexus/joint action’ test”].) Julian’s allegations failed to
satisfy this test for the same reason they failed to satisfy the joint
action test: She did not allege any joint action or
interdependence between the hospital defendants and any
government entity or official.
Finally, under the state compulsion test, the court
considers “whether the coercive influence or ‘significant
encouragement’ of the state effectively converts a private action
into a government action.” (Kirtley, supra, 326 F.3d at p. 1094;
see Sutton, supra, 192 F.3d at pp. 836-837.) “The Supreme Court
has repeatedly held that ‘the mere fact that a business is subject
to state regulation does not by itself convert its action into that of
the State.’” (Caviness, supra, 590 F.3d at p. 816, quoting
American Manufacturers Mutual Insurance Co. v. Sullivan (1999)
526 U.S. 40, 52.) Indeed, “[e]ven extensive government
regulation of a private business is insufficient to make that
business a state actor if the challenged conduct was ‘not
52
compelled or even influenced by any state regulation.’”
(Caviness, at p. 816.)
The state did not exercise coercive influence over, or
provide significant encouragement to, the hospital defendants
regarding their decision under section 5150 to detain and treat
Julian or their manner in doing so. Section 5150 is permissive,
not mandatory, because it provides that an authorized person
“may, upon probable cause, take, or cause to be taken, the person
into custody.” (See Sturm, supra, 2010 WL 725563, at p. 2.)
Section 5150 also allows a private physician to exercise his or her
discretion to determine whether, “in the judgment of the
professional person,” an individual should be detained. (§ 5150,
subds. (e), (f); see Jacobs, supra, 108 Cal.App.4th at pp. 75-76.)
Thus, section 5150 “does not require or encourage 72-hour
detentions and merely allows private parties to exercise their
independent medical judgment regarding the need for treatment
and evaluation.” (Sturm, at p. 2; see also Benn v. Universal
Health System, Inc. (3d Cir. 2004) 371 F.3d 165, 171 [“although
the [Pennsylvania civil commitment law] permits a physician or
other ‘responsible party’ to file an application for an emergency
examination, we see nothing in the [law] that compels or even
significantly encourages the filing of an application”]; Harvey v.
Harvey (11th Cir. 1992) 949 F.2d 1127, 1130-1131 [“Georgia
statutes neither compel nor encourage involuntary commitment,
precluding [a private hospital] becoming a state actor by state
compulsion”].) Indeed, Julian alleged the hospital defendants
conducted an independent assessment to determine whether to
detain her.
Julian contends the hospital defendants made the decision
to hold her pursuant to substantive standards set forth in certain
53
state or county regulations and guidelines. The authorities she
cites, however, are only procedural guidelines for designating
facilities and physicians under the Act, not substantive
guidelines for determining whether or in what circumstances an
individual may or must be detained.15 (See Caviness, 590 F.3d at
p. 818 [no state compulsion or influence over charter school
operator’s personnel decisions even though the state had
authority to review and approve the operator’s personnel
policies].) Thus, the hospital defendants’ decision to detain
Julian did not qualify as state action under the state compulsion
test.
Julian cites several cases in support of her argument that
the hospital defendants’ actions constituted state action, but most
of those cases are distinguishable because they involved a state
15 Julian cites various regulations defining “psychiatrist” and
“psychologist” and establishing procedures for the approval of
facilities and professionals authorized under the Act. (See Cal.
Code Regs., tit. 9, §§ 622-625, 821, 821.1, 822.) She also cites the
Los Angeles County Department of Mental Health’s LPS
[Lanterman-Petris-Short Act] Designation Guidelines and
Process for Facilities Within Los Angeles County (Guidelines)
(available at
http://file.lacounty.gov/SDSInter/dmh/242404_LPSDesignationGu
idelines7thEd.revFeb.2016.pdf), which includes, for example, a
requirement that designated facilities have policies regarding a
variety of legal issues such as the initiation of 72-hour
detentions. (Guidelines, at § I.D.1.a.) The Guidelines do not
specify what that policy should be. These regulations and
policies do not constitute the type of substantive standards or
procedural guidelines that “‘could have compelled or influenced’”
the hospital defendants’ actions. (Caviness, 590 F.3d at p. 818.)
54
hospital, state contractor, or public employee, or a plaintiff who
succeeded in showing joint action between a private physician
and a government employee. (See Zinermon v. Burch (1990) 494
U.S. 113, 118; Ellis v. City of San Diego, Cal. (9th Cir. 1999) 176
F.3d 1183, 1186; Tewksbury v. Dowling (E.D.N.Y. 2001) 169
F.Supp.2d 103, 110.)16 Julian did not allege that the hospital
defendants were government employees or contractors or that
they undertook “a complex and deeply intertwined process” with
government employees that would justify treating the hospital
defendants as state actors. (Jensen, supra, 222 F.3d at p. 575.)
Julian also cites Cummings v. Charter Hospital of
Las Vegas, Inc. (1995) 111 Nev. 639 [896 P.2d 1137], which held a
private hospital and physician acted under color of law in
detaining the plaintiff under Nevada’s civil commitment law.
(Id. at p. 651.) The Nevada Supreme Court in that case held that
Nevada law “goes beyond mere regulation and authorizes the
exercise by private persons of significant power over those alleged
to be mentally ill.” (Ibid.) The court did not cite or attempt to
distinguish cases that have reached the opposite conclusion
under similar circumstances. (See, e.g., Ellison v. Garbarino
(6th Cir. 1995) 48 F.3d 192; Rockwell v. Cape Cod Hospital
(1st Cir. 1994) 26 F.3d 254; Harvey, supra, 949 F.2d 1127;
Spencer v. Lee (7th Cir. 1989) 864 F.2d 1376; Janicsko v. Pellman
(M.D.Pa. 1991) 774 F.Supp. 331, affd. (3rd Cir. 1992) 970 F.2d
899.) Moreover, as these and other cases show, even if
Cummings were persuasive authority, it represents a minority
view on the issue whether private hospitals or physicians are
16 Julian also miscites Doe v. Rosenberg, supra, 996 F.Supp.
343 as having found state action, when in fact the court in that
case did not. (See id. at pp. 349-358.)
55
state actors when they detain a person for mental health
treatment pursuant to state law. (See McGugan v. Aldana-
Bernier (2d Cir. 2014) 752 F.3d 224; Wittner v. Banner Health
(10th Cir. 2013) 720 F.3d 770; Estades-Negroni v. CPC Hospital
San Juan Capestrano (1st Cir. 2005) 412 F.3d 1; Benn, supra, 371
F.3d 165; Bass v. Parkwood Hospital (5th Cir. 1999) 180 F.3d
234; S.P. v. City of Takoma Park, 134 F.3d 260 (4th Cir.1998);
Doe v. Rosenberg, supra, 996 F.Supp. at p. 349 [collecting
additional cases].)17
17 Numerous other federal courts of appeals and district
courts have adopted this majority view. (See, e.g., Doe v.
Rosenberg (2d Cir. 1999) 166 F.3d 507; Pino v. Higgs (10th Cir.
1996) 75 F.3d 1461; Ahearn v. Inland Hospital (D.Me., Sept. 23,
2016, No. 1:16-CV-00457-DBH) 2016 WL 5338525; Much v.
Langston (C.D.Cal., Apr. 28, 2016, No. CV 16-0863 VAP (SS))
2016 WL 1732696; Caldwell v. Gupta (N.D.Ind., May 19, 2015,
No. 2:15-CV-157 JD) 2015 WL 2381356; Gordon v. Neugebauer
(N.D.Tex. 2014) 57 F.Supp.3d 766; Antwi v. Montefiore Medical
Center (S.D.N.Y., Nov. 18, 2014, No. 14 Civ. 840 (ER)) 2014 WL
6481996; Bayer v. Pocono Medical Center (M.D.Pa., July 23, 2014,
No. CIV.A. 3:13-1900) 2014 WL 3670499; Zhuang v. Saquet
(D.Mass., June 20, 2014, No. CIV.A. No. 09-12163-NMG) 2014
WL 2810320; Tate v. Kaiser Foundation Hospitals (C.D.Cal., Jan.
15, 2014, No. 2:12-CV-9075-CAS (RZx)) 2014 WL 176625; Sturm,
supra, 2010 WL 725563; Hopkins v. Planich (W.D.Wash., Nov. 9,
2009, No. C09-5405 FDB) 2009 WL 3765170; Bolmer v. Oliveira
(D.Conn. 2008) 570 F.Supp.2d 301; Nash v. Lewis (D.Or., Dec. 21,
2004, No. Civ.04-6291-CO) 2004 WL 2966913; Doe v. Harrison
(S.D.N.Y. 2003) 254 F.Supp.2d 338; Hendricks v. Rasmussen
(D.Minn., July 27, 2001, No. Civ. 01-783(DSD/JMM)) 2001 WL
1631325.) Such “‘numerous and consistent’” federal court
decisions are persuasive authority. (Morales v. 22nd District
56
Thus, under any of the tests, Julian failed to allege facts
showing the hospital defendants acted as state actors in deciding
to detain, assess, and treat her. The trial court properly
sustained the hospital defendants’ demurrers to Julian’s second
cause of action without leave to amend.
2. State Civil Rights Claim
Julian’s third cause of action against the hospital
defendants was for violation of civil rights under the California
Constitution. As noted, there is no cause of action for damages
for alleged violations of article I, section 2, subdivision (a)
(freedom of speech), article I, section 3, subdivision (a) (right to
petition the government), or article I, section 7, subdivision (a)
(due process and equal protection), when such action is not tied to
an established common law or statutory action, and Julian did
not allege facts showing a violation of article I, section 3,
subdivision (b), concerning her “right of access to information
concerning the conduct of people’s business.” With regard to her
claim under article I, section 1, for alleged violations of her right
to privacy, Julian failed to identify a legally protected privacy
interest, a reasonable expectation of privacy under the
circumstances, or a serious invasion of the identified privacy
interest. (See Sheehan, supra, 45 Cal.4th at p. 998; Hill, supra, 7
Cal.4th at pp. 35-37.)
With regard to her claim under article 1, section 13, for
unreasonable search and seizure, California law, like federal law,
requires state action, which is lacking here for the same reasons
it is lacking under federal law. (See Tate, supra, 2014 WL
Agricultural Association (2016) 1 Cal.App.5th 504, 516; see
Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 150.)
57
176625 at p. 4; People v. De Juan (1985) 171 Cal.App.3d 1110,
1120 [the “provisions prohibiting unreasonable searches and
seizures found in both the federal and California Constitutions
. . . are applicable only to searches and seizures by the
government or its agents”].) Therefore, the trial court properly
sustained the hospital defendants’ demurrers to Julian’s cause of
action for violations of the California Constitution without leave
to amend.
DISPOSITION
The judgment is affirmed. Respondents are to recover their
costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
SMALL, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
58