PROCEEDINGS in mandate after superior court sustained demurrers. Ronald L. Styn, Judge. Petition granted in part. (Super. Ct. No. 37-2008-00084805-CU-PO-CTL).
The opinion of the court was delivered by: Irion, J.
CERTIFIED FOR PUBLICATION
Denisha Lawson was incarcerated in a community-based correctional facility operated by Center Point, Inc. (Center Point), where she resided with her infant daughter, Esperanza. Lawson and Esperanza, by and though her guardian ad litem, filed a lawsuit against the State of California (the State),*fn1 Center Point, and employees of the State and Center Point, alleging that Esperanza sustained physical injury and Lawson experienced emotional distress when defendants failed to obtain medical treatment for Esperanza's serious respiratory infection. Citing the governmental immunity set forth in the Tort Claims Act (Gov. Code, § 810 et. seq.), the trial court sustained demurrers to several of the causes of action asserted by Esperanza and Lawson.
Lawson and Esperanza filed a petition for writ of mandate asking us to review the trial court's ruling on the demurrers, and we issued an order to show cause.
As we will explain, the trial court erred in sustaining (1) the State's demurrer to Esperanza's cause of action for negligence; and (2) the demurrer brought by Center Point and its employees as to (a) Lawson's causes of action for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress, and (b) Esperanza's cause of action for negligence.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Pregnant and Parenting Women's Alternative Sentencing Program Act
Under the Pregnant and Parenting Women's Alternative Sentencing Program Act (PPWASPA) (Pen. Code, § 1174 et seq.), the CDCR provides community-based facilities for women prisoners with young children, as an alternative to commitment to state prison. At the time of sentencing, a court may recommend a woman for placement in the program if she is pregnant or the mother of one or more children under the age of six, has a history of substance abuse, has not been convicted of certain specified crimes, and has been sentenced to prison for a term of not more than 36 months. (Pen. Code, § 1174.4, subds. (a), (b).) Women sentenced to the program receive treatment for substance abuse while living with one or more of their children under the age of six in a 12- month residential program, followed by 12 months of outpatient transitional services. (Id., § 1174.2.) According to the PPWASPA, the CDCR contracts with a service provider to "administer and operate the center and program" consistent with statutory and regulatory requirements.*fn2 (Pen. Code, § 1174.3, subd. (b).)
B. The Allegations of the Second Amended Complaint
As alleged in the operative Second Amended Complaint (the Complaint), in November 2006 Lawson was placed into a 40-bed correctional facility existing under the PPWASPA run by Center Point in San Diego (the facility). According to Lawson's briefing, she was pregnant at the time of her placement in the facility, and gave birth prematurely to Esperanza in March 2007.
The Complaint alleges that on April 25, 2007, Esperanza developed severe respiratory problems, later diagnosed as double pneumonia. Over the course of eight to 11 days, Lawson allegedly asked personnel at the facility to obtain treatment for Esperanza. The request was repeatedly denied, despite Esperanza's "green discharge . . . , labored breathing, and increasingly more ashen complexion" and the fact that Esperanza had ceased breathing on at least three occasions. According to the Complaint, one of the employees at the facility ultimately defied her supervisors and took Esperanza to the hospital. Because of the delay in obtaining medical care, Esperanza allegedly suffered "hypoxia, double pneumonia requiring double intubation, cardiac arrest, scarring and injury to both lungs, causing permanent injury which will cause future medical problems." Lawson also alleged that she was deprived of her own medications and the use of a breast pump while at the facility.
Lawson and Esperanza, by and through her guardian ad litem, filed this action based on the physical injuries to Esperanza and the emotional trauma suffered by Lawson when she was denied necessary medical care for her infant.
The following defendants are sued in the Complaint: (1) the State; (2) two employees of the State, specifically Mark Koen and Herbert Sanders; (3) Center Point, which, according to the Complaint "owned and/or leased and operated" the facility by "express contract" with the State; and (4) four employees of Center Point, specifically Sushma Taylor, Laura Lambe, Jill Michon and Jackie Galston. According to the Complaint, the Center Point employees were "working under the color and authority of the State of California as jailers."
The Complaint contains six causes of action: (1) "Failure to Furnish Medical Care to Prisoner" in violation of Government Code section 845.6 (first cause of action); (2) negligence (second cause of action); (3) negligent infliction of emotional distress (third cause of action); (4) intentional infliction of emotional distress (fourth cause of action); (5) false imprisonment, asserted by Esperanza; and (6) violation of 42 United States Code section 1983 against all of the defendants except the State.
C. The Trial Court's Rulings on the Demurrers to the Complaint
This writ proceeding arises from the trial court's rulings on demurrers challenging the Complaint, which were filed by (1) the State and Koen; and (2) Center Point, Michon and Galston.*fn3
1. The Trial Court's Ruling on the Demurrer Filed by the State and Koen
In the demurrer filed by the State and Koen, the State demurred to each of the causes of action alleged against it, but Koen demurred only to the first cause of action, i.e., the claim for "Failure to Furnish Medical Care to Prisoner" in violation of Government Code section 845.6.
On May 1, 2009, the trial court sustained the demurrer as to all of the causes of action except for false imprisonment. In sustaining the State's demurrer to the first through fourth causes of action, the trial court explained that under the immunity provided by the Tort Claims Act, "all government tort liability is dependent on the existence of an authorizing statute or 'enactment,' " and that the Complaint did not identify a statute imposing a duty on the State to provide Esperanza with medical treatment. The trial court also stated that although the Complaint relied on Government Code section 845.6, which provides that a public entity or a public employee (acting within the scope of his employment) is liable for failing to take action in response to a "prisoner . . . in need of immediate medical care," Esperanza was not a "prisoner" within the meaning of that statute. Further, the trial court concluded that other statutes identified in the Complaint did not give rise to a duty to provide medical care to Esperanza.*fn4 As to Koen's demurrer, the trial court stated: "Because Defendant State of California is immune from liability under Government Code [section] 815, so is individual Defendant Koen."*fn5
2. The Trial Court's Ruling on the Demurrer Filed by Center Point, Michon and Galston
The demurrer filed by Center Point, Michon and Galston challenged each of the causes of action in the Complaint, except the cause of action for false imprisonment.*fn6
On May 1, 2009, the trial court sustained the demurrer as to all of the causes of action at issue except for the cause of action for violation of 42 United States Code section 1983.*fn7 In its ruling, the trial court employed the following reasoning. First, relying on Miller v. Filter (2007) 150 Cal.App.4th 652 (Miller), the trial court concluded that "[b]ased on the allegations of the complaint, Defendants Michon and Galston are uncompensated public officers. As such Michon and Galston are entitled to governmental immunity." The trial court then went on to employ much of the same reasoning it had used in deciding the State and Koen's demurrer.
Specifically, the trial court concluded that Michon and Galston were immune from liability to Lawson for the causes of action of "Failure to Furnish Medical Care to Prisoner," negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress because of Government Code section 844.6, which states that "a public entity is not liable for: [¶] . . . [¶] (2) An injury to any prisoner." As to Lawson's claims against Center Point, the trial court stated that "[g]iven the immunity afforded to [Michon and Galston], Center Point cannot be vicariously liable for their actions."*fn8 With respect to Esperanza's causes of action for "Failure to Furnish Medical Care to Prisoner," negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress, the trial court sustained Center Point, Michon and Galston's demurrer to those causes of action on the ground that "in California all government tort liability is dependent on the existence of an authorizing statute or 'enactment,' " and the Complaint did not identify a statute imposing a duty on Center Point, Michon and Galston to provide medical care to Esperanza.
D. Lawson and Esperanza's Petition for a Peremptory Writ of Mandate
Lawson and Esperanza filed a petition for a peremptory writ of mandate on June 26, 2009 (the Petition). After receiving and considering a response to the Petition, we issued an order to show cause on August 25, 2009.
The Petition requests that we "issue a decision reversing the grant of demurrer as to the State of California on the First (Failure to Furnish Medical Care to Prisoner)[,] Second (Negligence)[,] Third (Negligent Infliction of Emotional Distress)[,] and Fourth (Intentional Infliction of Emotional Distress) Causes of Action[;] as to Mark Koen on the First, Second, Third, and Fourth Causes of Action[;] and as to Center Point, Inc., Sushma Taylor, Laura Lambe, Jackie Galston and Jill Michon on the First, Second, Third and Fourth Causes of Action."
Based on our understanding of the procedural history, the Petition incorrectly describes the extent of the rulings on the demurrers. First, as we have described, Koen demurred only to the first cause of action (i.e., "Failure to Furnish Medical Care to Prisoner"). The trial court's ruling on the demurrer with respect to Koen does not expressly state that it extends to other causes of action. Second, the trial court did not enter an order sustaining a demurrer as to Taylor and Lambe because, as far as the record before us indicates, those parties did not file a demurrer to the Complaint. Accordingly, we review the demurrers to the first, second, third and fourth causes of action with respect to the State, Center Point, Galston and Michon; and we review the demurrer to the first cause of action with respect to Koen.
With these clarifications in mind, we proceed to consider the trial court's ruling on the demurrers.
A. The Demurrer Filed by the State and Koen
The demurrer filed by the State and Koen focused on concepts of governmental immunity as set forth in the Tort Claims Act, and the trial court relied on that immunity in sustaining the demurrers. Accordingly, we begin our analysis with an overview of the governmental immunity, and its exceptions, set forth in the Tort Claims Act.
1. Public Agencies' and Public Employees' Immunity and Liability Under the Tort Claims Act
The basic rule of immunity for public entities in California is contained in Government Code section 815, which states that "[e]xcept as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Ibid., italics added.) Conversely, "[e]xcept as otherwise provided by statute . . . , a public employee is liable for injury caused by his act or omission to the same extent as a private person." (Id., § 820, subd. (a), italics added.) Thus, the Tort Claims Act "establishes the basic rules that public entities are immune from liability except as provided by statute ([Gov. Code, ]§ 815, subd. (a)) [and] that public employees are liable for their torts except as otherwise provided by statute." (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.)
As relevant here, the Tort Claims Act sets forth two main statutory exceptions to the immunity from liability that it confers on public entities.
First, Government Code section 815.2 provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative" (id., subd. (a)), except "where the employee is immune from liability" (id., subd. (b)). This "[v]icarious liability is a primary basis for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior." (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128.)
Second, Government Code section 815.6 provides that "[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Ibid.) This provision "imposes liability on a public entity if it breaches a mandatory statutory duty that is intended to protect against the kind of injury the party seeking relief has suffered, and the breach proximately caused that injury." (Creason v. Department of Health Services (1998) 18 Cal.4th 623, 629.)
Here, the State is unquestionably a public entity within the meaning of the Tort Claims Act*fn9 and thus is subject to the immunity provisions for public entities set forth in the Tort Claims Act, including the two main exceptions to public entity immunity, i.e., (a) vicarious liability for the acts or omissions of a State employee (Gov. Code, § 815.2); and (b) breach of a mandatory statutory duty (id., § 815.6).
Because this case concerns events in a correctional facility, we also must consider the provisions in the Tort Claims Act expressly applicable to injuries incurred by prisoners. Although a public entity may be vicariously liable for the acts and omissions of its employees (Gov. Code, § 815.2), that rule does not apply in the case of injuries to prisoners. Government Code section 844.6 states that with certain statutory exceptions (including Gov. Code, § 845.6, discussed below), "a public entity is not liable for: [¶] . . . [¶] (2) An injury to any prisoner." This creation of immunity expressly applies only to public entities, not public employees, as the statute states that "[n]othing in this section exonerates a public employee from liability for any injury proximately caused by his negligent or wrongful act or omission." (Gov. Code, § 844.6, subd. (d).)
In addition, Government Code section 845.6, focuses more specifically on the extent of immunity applicable to a prisoner's claim for failure to provide medical care. It limits the liability of public employees for failing to provide medical care, and also creates one exception to the State's blanket immunity for injuries to prisoners.
"Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.8 and 856,*fn10 a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is ...