Filed 2/11/15 Wedgeworth v. City of Newport Beach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SANDY WEDGEWORTH et al., Plaintiffs and Appellants,

v. CITY OF NEWPORT BEACH et al., Defendants and Respondents. G048784 (Super. Ct . No. 30-2011-00493787)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, William M. Monroe, Judge. Affirmed.
Law Offices of Andrew A. Smits and Andrew A. Smits for Plaintiffs and Appellants. Ferguson, Praet & Sherman, Peter J. Ferguson, Allen Christiansen; Pollak,
Vida & Fisher and Daniel P. Bare r for Defendants and Respondents.

* * *2 I NTRODUCTION William Robert Wedgeworth (William) committed suicide while in the custody of the Newport Beach Police Depart ment. William’s wife, Sandy Wedgeworth (Sandy), and William’s three surviv ing children (collectively, pl aintiffs), sued the City of Newport Beach (the City) and several individu al police officers (collectively, defendants) for negligence, wrongful death, and failure to obtain medical care for a prisoner. The trial court granted summary adjudication on two causes of action, and entered judgment on the pleadings on a third cause of action, in favor of defendants and against plaintiffs.
We affirm. Defendants es tablished by admissible ev idence that, on this record and in view of the ap plicable provisions of the Government Code, no duty existed
to summon immediate medical care for William to prevent hi m from committing suicide.
Plaintiffs did not raise a triable issue of material fact in opposition to the motion for summary adjudication. The trial court correctly granted th e motion for summary adjudication, and the motion for judgment on the pleadings without leave to amend.

S TATEMENT OF F ACTS AND P ROCEDURAL H ISTORY On July 31, 2010 , William was agitated, yelling, sweating profusely, and red in the face. He was forcing Sandy’s hand into a fist and hittin g himself in the face with her fist. Sandy called 911 to obtain me dical care for William; she described him as “having another one of his crazy episodes.” Sandy reported William’s behavior an d a prior Welfare and Institutions Code section 5150 commitment to the 911 ope rator, and the police dispatchers provided the information by broadcast. Officers Matthew Wood, Sam Sa, and Spencer Arnold responded to William and Sandy’s house. Officer Sa met with Sandy; Sandy advised Officer Sa of William’s history of mental illn ess, prior section 5150 hold, and need for medication. Sergeant Arnold suspected William was under the influence of drugs.3 The officers arrested William for domes tic violence. Officer Jonathan Sunshine transported William to the jail in the basement of the police station. The arresting officers did not tell Officer Sunshi ne about their observations of William, the information regarding his prior Welfare and Institutions Code sec tion 5150 hold, or his other contacts with the police.
When Officer Sunshine delivered Willia m to the City’s police department jail, he told the custody officers, Gerald Fa ludi and Diane Harris, that William had said
his hands and feet were dead ly weapons, and th at William was a “5149” or “5149 and a half,” meaning someone who appears mentally ill. Officer Faludi took custody of Willia m, inventoried his personal property, and prepared the booking pape rwork. Officer Daran Ka nbara performed a cursory medical screening of William. Officer Harris placed bed sheets in William’s cell, and locked William in the cell about 6:00 p.m. Officer Harris did not place William in a safety cell, which is used fo r inmates who might be a dange r to themselves. William was the only arrestee in th e jail at that time. The custody officers performed welfar e checks on William once per hour
while he was in his cell. W illiam was found dead in his ce ll at approximate ly 10:00 p.m., having hung himself with his bed sheets. A complaint was filed against the C ity and the officers involved in William’s arrest and detention, seeking da mages for wrongful death (first cause of action), negligence (second cause of action), and failure to obtain medical care for a prisoner (third cause of action). Defendants filed a motion for summary judgment or, in the alternative, summary adjudication. The tr ial court granted the motion fo r summary adjudication as to the first and third causes of action, and tr eated the motion for summary adjudication of the second cause of action as a motion for j udgment on the pleadings, which was granted without leave to amend. Judgment was en tered, and plaintiffs timely appealed.4 D ISCUSSION I.

M OTION TO C ONTINUE In their opposition to th e motion for summary judgment, plaintiffs argued the trial court should deny or continue the hearing on the mo tion to enable plaintiffs to obtain essential evidence that might exist but c ould not then be presented. The trial court denied the request. “To mitigate summary judgment’s harshne ss, the statute’s drafters included a provision making continuances—which ar e normally a matter within the broad discretion of trial courts—virtually mandate d ‘“upon a good faith showing by affidavit
that a continuance is needed to obtain facts essential to jus tify opposition to the motion.” [Citation.]’ [Citation.]” ( Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) If
the declaration or affidavit does not establis h the need for a mandatory continuance, the
trial court must exercise its discretion to determine whether good cause for a continuance has been shown. ( Lerma v. County of Orange (2004) 120 Cal.App. 4th 709, 715-716.) Plaintiffs’ counsel’s declaration suppor ting the request for a continuance of the summary judgment motion hearing reads, in relevant part, as follows:
“32. I am informed and believe that there is a likelihood that controverting evidence may exist and is essential to opposing Defendants’ motion for summary judgment or summary adjudication. There apparently exists an investigation file maintained by the Defendants that may in clude essential evidence regarding the following: Defendants’ knowledge of Mr. Wedgeworth’s mental illness; Defendants’ willful, reckless or negligent di sregard for Mr. Wedgeworth’s he alth while he was in their care and custody; Defendants’ failure to fo llow their own policies and procedures when detaining Mr. Wedgeworth, among other things. Defendants’ investigation file is in issue5 in this action. Defendants have answered the [first amended complaint] by including a
Fourteenth Affirmative Defens e that provides as follows: “‘These answering Defendants allege that this incident was properly investigated and that the acts of all Defenda nts were in accordance with proper policies and all legal standard s (emphasis added).’ “Defendants’ Answer to [the] Firs t Amended Complain t and Affirmative Defenses is dated November 28, 2012. In addition, Defendants have made representations to the public that they have co nducted a thorough investigation into Mr. Wedgeworth’s death and their investigati on shows that . . . there was no wrong-doing on their part. At least one such public de claration appeared in the local Daily Pilot newspaper dated January 27, 2011. Defendant ’s City Attorney st ated the following: “‘ . . . This is a sad and tragic loss, said Newport Beach City Atty. David Hunt. “We take it very seriously, and we’v e done a thorough investigation into the circumstances underlying it. We concluded there was nothing we could’ve done to prevent it. The jail is safe, and our officers did their job correctly.” (emphasis added)’ “33. Having made these representati ons to the Court, Plaintiffs and the general public, Defendants refu se to produce their investig ation file to Plaintiffs. Plaintiffs propounded a document demand and brought a motion to compel production of the investigation file on December 13, 20 12. On January 28, 2013, the Discovery Referee recommended granting Pl aintiffs’ motion. However, Defendants still refuse to produce their investigation file. In fact, De fendants have challenged the Referee’s Fifth Recommendation to grant Plaintiffs’ motion to compel. Defendants brought an ex parte application challenging the Referee’s Reco mmendation on Wednesday, January 30, 2013.
The Court continued the hearin g on Defendants’ application to February 21, 2013, the day of the hearing on this motion. Plaintiffs oppose Defendants’ application and maintain they are entitl ed to the entire file, which is co re evidence for trial regarding
Defendants’ Fourteenth Affirmative Defense.6 “34. Plaintiffs await a ru ling on this latest effort by Defendants to withhold production of their investigation file. Assuming the Court adopts the Discovery Referee’s Recommendations, it may be at least f our to six weeks before Plaintiffs obtain the file and obtain any follow up discovery, su ch as depositions concerning the file. A continuance of the hearing on Defendants’ summary adj udication motion will allow Plaintiffs an opportunity to complete this discovery regard ing Defendants’ investigation
file and fourteenth affirmative defense. The discovery bears directly on the issues presented in Defendants’ summary adjudicati on motion and will be us ed in oppo sing the motion.” (Boldface omitted.) The evidence that plaintiffs claim th ey needed to oppo se the motion for summary judgment was the City ’s investigation file of th e incident. The trial court determined that the investiga tion file was privileged and ther efore was not required to be produced by defendants to plai ntiffs. If the evidence was not discoverable, the motion to continue the hearing in order to obtain the evidence was properly denied. We therefore turn to the issue of the propriety of the court’s discovery order. In his third report, the discovery refe ree recommended that the investigation file not be produced because it was privile ged. The court approved the referee’s recommendation, and made the recommendation and report the order of the court. In his fifth report, the discovery refe ree recommended that the investigation file be produced by defendants because they had waived the a ttorney-client privilege that might have been applicable to the inves tigation file by (1) asserting in the 14th
affirmative defense to the firs t amended complaint that the C ity had fully investigated the incident, and (2) the City attorney’s st atement, as quoted in a local newspaper, ante . The trial court sustained defendants’ objections to the fifth report: “Defendant City’s 14th
affirmative defense is not an affirmative defense. A showing that Defendant City properly investigated the incident would no t defeat Wedgeworth Plaintiffs’ claims, nor would a showing that Defendant City concluded that the officers acted properly after its7 investigation. As such, the so-called affirma tive defense is immaterial and irrelevant. [¶] The immaterial and irrelevant matter placed in Defendants’ answer sh ould not serve [as] a waiver of attorney client or work produc t privilege. Nor should the statement made by [the City attorney] serve as a waiver of privilege. The statement did not disclose anything of note.”
The trial court did not abuse its discre tion in determining the attorney-client privilege as to the investigation file had not been waived by the assertion of the 14th affirmative defense, or by the City attorney’s stat ement to the press. First, defendants waived the 14th affirmative defense. Second, the court correctly found that the propriety of the postsuicide investigation was not an affirmative defense to plaintiffs’ claims against defendants. Finally, the court correct ly found that neither the assertion of a proper investigation as an affirmative defense, or a statement by the C ity attorney that the investigation exonerated defend ants, waived any privilege or protection that applied to the investigation file.
Because the evidence that plaintiffs claimed they needed to oppose the motion for summary judgment was privileged, the trial court did not err in denying the request to continue the hearing on the moti on for summary judgment to enable plaintiffs to obtain the investigation file.

II.

M OTION FOR S UMMARY J UDGMENT AND /

OR S UMMARY A DJUDICATION A. Standard of Review We review an order granting su mmary adjudication de novo. ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35.) A motion fo r summary adjudication is properly granted if the moving papers establish th ere is no triable issue of material fact as to a cause of8 action, an affirmative defense, or the existen ce of or lack of a duty, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f); Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 843 .) “To prevail on the motion,
a defendant must demonstrate the plaintiff’s cause of action has no merit. This requirement can be satisfied by showing either one or more elements of the cause of action cannot be established or that a comp lete defense exists. [Citations.] If the defendant meets this requirement, the burden shifts to the plaintiff to demonstrate a
triable issue of material f act exists. [Citations.]” ( We Do Graphics, Inc. v. Mercury Casualty Co . (2004) 124 Cal.A pp.4th 131, 135-136.) The court’s order granting judgment on the pleadings is also reviewed de novo. ( Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289, 296-297.) Judgment on th e pleadings should not be granted if there is a reasonable possibility that a defect in the complaint can be cured by amendment. ( Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118; La Jolla Village Homeowners’ Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1141.) The burden of proving a reasonable possibility of amendm ent is on the plaintiff. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We review the trial cour t’s decision to grant the motion for judgment on the pleadings without leave to am end for abuse of discretion. ( Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1277.)

B. Existence of a Duty All of plaintiffs’ causes of action—wrongful death, negligence, and negligent violation of the duty to obtain me dical care for a prisoner— sound in tort. The first questions are therefore whether defendants owed a duty to plaintiffs and, if so, the nature of that duty.9 The Government Claims Act, Governme nt Code section 810 et seq., limits the instances for which a public entity may be held liable for injury caused by it or by one of its employees. (All further statutory refe rences are to the Government Code, unless otherwise specified.) Specifica lly, the City is immune from a ny lawsuits alleging injury to a prisoner, unless the facts of the case fa ll within certain speci fied exceptions: “(a) Notwithstanding any other pr ovision of this part, except as provided in this section and in Section[] . . . 845.6 . . . , a public entity is not liable for: [¶] . . . [¶] (2) An injury to any prisoner. [¶] . . . [¶ ] (d) Nothing in this section exonerates a public employee from liability for injury pr oximately caused by his negligent or wrongful act or omission.” (§ 844.6, subds. (a), (d).) As used in sec tion 844.6, “injury” includes death. ( Lowman v. County of Los Angeles (1982) 127 Cal.App.3d 613, 615-616.) The principal focus of each of plain tiffs’ negligence-based causes of action
is defendants’ failure to summon medical care for William. Section 845.6 provides immunity to both the public entity and its employees fo r “injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody,” unless the public employee “knows or has reason to know that the prisoner is in
need of immediate medical car e and he fails to take reas onable action to summon such medical care.” (§ 845.6.) “Section 845.6 is very narrowly writte n to authorize a cause of action against a public entity for its employees’ fail ure to summon immediate medical care only, not for certain employees’ malpractice in pr oviding that care. . . . Thus, section 845.6 creates out of the general imm unity a limited cause of action ag ainst a public entity for its employees’ failure to summon immediate medical care only. [Citation.]” ( Castaneda v. Department of Correc tions & Rehabilitation (2013) 212 Cal.App. 4th 1051, 1070.) “Liability under section 845.6 is lim ited to serious and obvious medical conditions requiring immediat e care. [Citations.]” ( Watson v. State of California (1993) 21 Cal.App.4th 836, 841; see Lucas v. City of Long Beach (1976) 60 Cal.App.3d 341,10 349-350 [prisoner who exhib ited symptoms of intoxicati on during booking process did not require immediate medical care, so public entity was not liable for prisoner’s suicide in jail cell].) Whether a public employee knows of a prisoner’s need for immediate medical care and whether the employee’s actions in summoning or failing to summon medical care were reasonable are generally factual questions for a jury. ( Castaneda v. Department of Correc tions & Rehabilitation , supra , 212 Cal.App.4th at p. 1073; Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174 , 1184-1187 [triable issue of material fact existed regarding county’s liability under se ction 845.6, so summary judgment reversed]; Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 317 [error to sustain demurrer on section 845.6 claim]; Hart v. County of Orange (1967) 254 Cal.App.2d 302, 307-309 [affirming jury verdic t in favor of heirs in wr ongful death action because substantial evidence supported jury’s fi nding that county was not immune from liability].) We therefore consid er whether defendants established, as a matter of law, that plaintiffs could not prove this element of the claim.
Defendants offered in evidence the decl arations of all the officers involved in arresting, transporting, a nd jailing William on July 31, 2010. Each of those declarants
attested that he or she did not know or have reason to know W illiam was in need of medical care, much less immediate medical care , at any time that day, and did not know or have reason to know of any suicidal ideat ion on William’s part. The intake screening form completed by Officer Kanbara noted th at William responded in the negative when
asked whether he had ever tried to harm hi mself or take his own life, was currently thinking of harming himself, was receiving psychological treatment, or had any medical problems the police need ed to know about. Officer Ka nbara’s declaration stated that William did not appear upset during the inta ke screening, and was cooperative in answering all the questions.11 Did plaintiffs offer admiss ible evidence creating a triable issue of material fact? Plaintiffs’ conclusory responses to de fendants’ separate statements of disputed material facts read, in releva nt part, “[t]here we re indications that Mr. Wedgeworth was
suicidal or had suicidal tendencies while in the presence of Def[endants] Arnold, Wood, Sa or Sunshine prior to being transported to the jail on July 31, 2010. Def[endant] Sunshine described Mr. Wedgeworth as a ‘5149.’ Def[endants] observed Mr. Wedgeworth’s mental illness behavi ors and were inform ed of it by NBPD dispatchers and Mrs. Wedgeworth. Def[e ndants] had records of Mr. Wedgeworth’s history of prior contacts with NBPD invol ving mental illness, a prior 5150 committal [ sic ], suicide attempts and idea tions.” Plaintiffs offered the following evidence in disputing defendants’ se parate statements: (1) Transcriptions of di spatch calls regarding th e incident at Sandy and William’s home on July 31, 2010, in which: (a) Sandy in forms the 911 operator that William was “having another one of his crazy episodes,” had “been 5 150’d before,” had a “borderline personality disorde r,” and was “just crazy”; (b) the police dispatcher informs the officers the 911 caller’s husband was “acting strangely, has some sort of disorder”; (c) the police dispatcher tells th e fire department a female call ed to report “her husband is acting strangely,” and “bipol ar behavior and all there previously”; (d) the police dispatcher advises responding officers, “William has priors for 245, 243, and 415 as well and a CII per loc info . . . . Bipolar behavi or”; and (e) the police dispatcher advises the responding officers that in a previous call, William had told the officers his hands and feet were deadly weapons. (2) An arrest report prepar ed by Officer Wood, readin g in relevant part as
follows: “The male seemed ex tremely agitated. He had a very red face and was sweating profusely. He was difficult to talk to beca use he continued to ye ll about his children and how his wife didn’t get the air fixed in her car . . . . [¶] . . . When Sgt. Arnold began to
walk inside the residence to check on O fficer Sa, Wedgeworth became increasingly12 agitated and asked him not to go into his house . He began yelling for his kids to come outside. He yelled that he would have to move out of the neighborhood and sell his house. He yelled that his children were bein g traumatized because the police were in his house. Sgt. Arnold informed Wedgeworth that he was going inside to check on the other Officer. I had to redirect Wedgeworth’s atte ntion to me in order to calm him down. When Sgt. Arnold returned about 1 minute later, Wedgeworth made the statement, ‘My hands and feet are lethal weapons. I was tr ained to kill with one punch. One time, my wife was making me angry and I punched the be d post and broke it. I told her that is what would happen to a man if I punched him.’ [¶] . . . [¶] . . . I asked him if he was ill or injured. He stated he was not. I asked him if he had any psychological issues for which
he took medications. He told me he was su pposed to be taking medications, but was not. I asked him what medication he was supposed to take and he did not answer me. [¶] . . . [¶] . . . He also stated that the camera would not photograph his real injuries. Sgt. Arnold
asked him what he meant and he st ated he had emotional injuries.” (3) A report prepared by Officer Fal udi reading, in relevant part: “Wedgeworth brought into NBPD Jail by Ofc. Sunshine on 7/31/2010 . . . . At that time, Ofc. Sunshine mentioned to me that Wedgewo rth was ‘5149’ and that he had stated his hands and feet are deadly weapons and they could kill someone in one second. I relayed
this information to Ofcs. Harri s and Kanbara as a matter of o fficer safety. . . . My contact
with him lasted no more than 15 seconds and he did not say an ything to me at that time. I did not notice anything unusual about Wedgeworth’s demeanor.” (4) A records check form prepared wh en William was booked at the City’s jail that showed he was committed under Welf are and Institutions Code section 5150 in 2009, and had been arrested for violating Pe nal Code section 245 (assault with a deadly weapon) in 2003.13 (5) A coroner’s report, noting, in releva nt part, that the coroner was advised by police personnel that William “had a medical history of hypertension, bipolar disorder, explosive anger disorder, and mu ltiple suicidal ideations with previous 5150 contacts.” (6) The police department’s policy re garding prisoner suicide prevention, which reads: “Any prisoner displaying suicidal behavior or deemed a suicide risk will be transported to Orange County Jail . . . or a Psychiatric Assessment Center IMMEDIATELY. [¶] . . . At the time of rece iving, the Custody O fficer on duty should be alert to any symptoms that may indicate that a prisoner is a suicide risk. These symptoms include depression, re fusal to communicate, verbally threatening to kill or hurt himself/herself, or any unusua l behavior that may indicate that the prisoner may harm himself/herself while in custody. [¶] . . . The Custody Officer should notify the Watch Commander at intake if he/she feels the pr isoner might be a suicide risk. The Watch Commander will arrange the transfer of the prisoner to Orange County Jail . . . or a Psychiatric Assessment Center. [¶] . . . If it becomes necessary to confine the prisoner while awaiting transportation and the prisoner is not combative or exhibiting bizarre behavior, the prisoner should be housed in a cell with another prisoner. Otherwise, the prisoner should be housed in the Safety Cell with monitor until transportation to one of the facilities. [¶] . . . The Custody Officer should make an entry on the prisoner’s ‘Pre-Booking Medical Screening Form’ and ‘Custody and Iden tification Report’ (Post-It Note) indicating that the prisoner is a ‘suici de risk.’ The Custody Officer will make a physical check on the prisoner at least every fifteen (15) minutes or more and record it on the ‘Inspection Log/Safety Cell Log.’” (Newport Beach Police Department, Jail Operations Manual (Sept. 2011) Medical Treatment Bookings, § 405.) None of the foregoing evidence offered by plain tiffs showed William was
suicidal or had suicidal tendencies or id eations, or that defendants had any more information about William’s prior mental state than that, at some point in the past, he had been subjected to a Welfare and Institutions Code section 5150 hold. Plaintiffs also filed14 a separate statement of additional undisputed material facts in opposition to the motion for summary judgment. That separate stat ement, however, did not cite any new or
different evidence than referenced ante , that would be relevant to the issue whether any
of defendants knew or had r eason to know William was in need of immediate medical

care. Having reviewed the appellate record de novo, we conclude plaintiffs failed
to raise a triable issue of ma terial fact regarding whether defendants knew or had reason
to know William was in need of immediate medical care. While the evidence clearly shows William was at least emotionally dist urbed and possibly suffering from a mental illness, this does not mean he wa s necessarily suicidal or in need of immediate medical or psychological care. Plaintiffs also alleged in the first amended complaint that defendants were negligent by failing to make regular welf are checks on William in his jail cell.
Defendants offered admissible ev idence that they made hourly welfare checks as required by California Code of Regula tions, title 15, section 1027, 1 which plaintiffs do not dispute. Plaintiffs contend that a duty to W illiam arose on the part of defendants pursuant to sections 1052, 1055, and 1209 of title 15 of the California Code of Regulations. 2 These sections do not apply because plaintiffs did not offer any admissible

1 California Code of Regulations, title 15, section 1027 provides, in relevant part: “A sufficient number of pe rsonnel shall be employed in each local detention facility to conduct at least hourly sa fety checks of inmates through direct visual observation of all inmates and to ensure the implementation and operation of the programs and activities required by these regula tions. There shall be a written plan that includes the documentation of ro utine safety checks.” 2 California Code of Regulations, title 15, section 1052 provides: “The facility administrator, in coop eration with the responsible physician, shall develop written policies and procedures to identify and evaluate all mentally disorder ed inmates. If an evaluation from medical or mental hea lth staff is not readily available, an inmate shall be considered mentally disordered for the purpose of this section if he or she appears to be a danger to himself/herself or others or if he/she appears gravely disabled . An evaluation from medical or mental health staff shall be secured within 24 hours of identification or15 evidence that William appeared to be a danger to himself or others or that he displayed behavior revealing an intent to cause physical harm to himself or others. The evidence that William told the police officers his ha nds and feet were deadly weapons does not
show he had an intent to cause himself or others physical harm. Given the number of police officers who interacted w ith William on July 31, 2010, if he had any intent to use

at the next daily sick call, whichever is earlies t. Segregation may be used if necessary to protect the safety of the inmate or others.” (Italics added.) California Code of Regulations, title 15, section 1055 provides: “The safety cell described in Title 24, Part 2, Sec tion 1231.2.5, shall be us ed to hold only those inmates who display behavior wh ich results in the destructi on of property or reveals an intent to cause physical harm to self or others . The facility administrator, in cooperation with the responsible physician , shall develop written policie s and procedures governing safety cell use and may delegate authority to place an inmate in a safety cell to a physician. [¶] In no case shall the safety cell be used for punishment or as a substitute for treatment. [¶] An inmate shall be placed in a safety cell only with the approval of the facility manager, the facility watch commande r, or the designated p hysician; continued retention shall be reviewed a minimum of ev ery eight hours. A medical assessment shall be completed within a maximum of 12 hours of placement in the safety cell or at the next daily sick call, whichever is earliest. The in mate shall be medically cleared for continued retention every 24 hours thereafter. A mental health opinion on placement and retention shall be secured within 24 hours of placem ent. Direct visual observation shall be conducted at least twi ce every thirty minutes. Such obser vation shall be documented. [¶] Procedures shall be established to assure ad ministration of necessary nutrition and fluids. Inmates shall be allowed to retain sufficien t clothing, or be provided with a suitably designed ‘safety garment,’ to provide fo r their personal privacy unless specific identifiable risks to the inmate’s safety or to the security of the facility are documented.” (Italics added.) California Code of Regulations, title 15, section 1209, subdivision (b) provides: “Unless the county has elected to implement the provisions of Penal Code Section 1369.1, a mentally disordered inmate who appe ars to be a danger to himself or others, or to be gravely disabled , shall be transferred for further evaluation to a designated Lanterman Petris Short treatm ent facility designate d by the county and approved by the State Department of Mental Health for diagnosis and treatment of such apparent mental disorder pursuant to Penal Co de section 4011.6 or 4011.8 unless the jail contains a designated treatment facility. Pr ior to the transfer, the inmate may be evaluated by licensed health personnel to de termine if treatment can be initiated at the correctional facility. Licensed health person nel may perform an on site assessment to determine if the inmate meets the criteria fo r admission to an inpatient facility, or if treatment can be initiated in the corre ctional facility.” (Italics added.)16 his hands and feet as deadly weapons, he had plenty of opportunities to do so. Even if those “threats” were real, not every threat of violence against an arresting police officer can justify treating the prisoner as mentally disturbed. Plaintiffs also contend that the pol ice department’s policy manuals, which require that welfare checks on mentally diso rdered detainees be performed twice every 30 minutes, create a duty that defendants breached. The police department’s policy manuals cannot create a duty of care because there is no evidence they were passed by the Legislature or adopted pursuant to the Administrative Procedure Act (§ 11340 et seq.). (Evid. Code, § 669.1; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 720-721; Strong v. State of California (2011) 201 Cal.App.4th 1439, 1451-1452.) 3 At the hearing on the motion for summary judgment, when the court
announced it would treat the motion for summa ry adjudication of the second cause of action as a motion for judgment on the pleadings, plaintiffs requested leave to amend the first amended complaint: “Well, if the court is treating it as a motion for judgment on the pleadings, then plaintiffs request leave to ame nd. And we certainly can do so showing all the duties that are set forth in the policy ma nual and the breaches as set forth in our
abundance of eviden ce submitted to the court and cite d in our plaintiffs’ separate statement.” As explained ante , however, the police department’s policy manuals cannot create a duty of care.
The trial court did not abuse its disc retion by denying the request for leave to amend. The court did not err in grantin g the motion for summary adjudication of the
first and third causes of action.

3 The policy manuals would be admissi ble to prove breach of an existing duty, however. ( Lugtu v. California Highway Patrol , supra , 26 Cal.4th at pp. 720-721; Strong v. State of California , supra , 201 Cal.App.4th at pp. 1451-1452; Minch v. Department of Californ ia Highway Patrol (2006) 140 Cal.App.4th 895, 908.)17 Neither Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231 ( Giraldo ) nor Lum v. County of San Joaquin (E.D.Cal. 2010) 756 F.Supp.2d 1243, both cited by plainti ffs, requires a different result. In Giraldo , the plaintiff prisoner, a transgender inmate who id entified herself as female, was repeatedly beaten and raped by her male cellmate, despite her compla ints to prison officials. ( Giraldo , supra , at p. 237.) Among other claims, the plaintiff sued for negligence. ( Ibid. ) The trial court sustained a demurrer to the negligence cause of action because there was no special relationship between a pr isoner and a jailer, and therefore no duty arose. ( Id. at pp. 237, 242.) The appellate court re versed the trial court’s order sustaining the demurrer: “[T]here is a special re lationship between jaile r and prisoner which imposes a duty of care on the jailer to the prisoner.” ( Id. at pp. 252-253.) Giraldo did not address the issue which is presente d here—whether the immunity created by section 845.6 prevents liability from defendant s to plaintiffs under the circumstances of
this case. The demurrer in Giraldo had also raised the issue of the immunity of the defendants ( id. at p. 241), but the trial court appare ntly did not reach the issue, and the appellate court did not address it. Moreover, Giraldo addressed only the propriety of sustaining a demurrer based on the face of the plaintiff’s complaint, and did not test the evidence supporting the plaintiff’s claims. Therefore, Giraldo is of limited use in our review of the present case.

In Lum v. County of San Joaquin , supra , 756 F.Supp.2d at page 1246, the
decedent was arrested and held in the San Joaquin County Jail. While the decedent was in the jail, the police officer s observed the decedent having hallucinations and suffering a seizure. ( Id. at pp. 1246-1247.) The defendant po lice officers released the decedent about six hours after his arrest, without ever obtaining medical treatment or a medical or psychological evaluation of him. ( Id. at p. 1247.) Several days later, the decedent’s body was found in the San Joaquin River; he had drowned. ( Ibid. ) The decedent’s parents sued the county, the city, and the individu al police officers for, among other things,18 wrongful death. ( Id. at p. 1253.) The district cour t denied the defendants’ motion to dismiss the wrongful death claim on the grou nd a special relationship existed between a jailer and a prisoner. ( Id. at pp. 1254-1255.) As with Giraldo , the motion considered only whether the claim for relief could be di smissed as a matter of law, and did not consider whether the undisputed material fact s showed the plaintiffs could not establish their claim. And, also like Giraldo , the district court in Lum did not consider the immunity created by section 845.6. Further, the out-of-state cases cited by pl aintiffs regarding a duty to prevent prisoner suicides are not bindi ng on this court, and are cont rary to California statutory
and decisional law.

C. Judgment on the Pleadings
The trial court treated the motion for summary adjudication of the second cause of action as a motion for judgment on the pleadings, and granted it. The court concluded that plaintiffs’ cause of action for negligence was the same as their cause of action for wrongful death caused by negligence. The court also noted that to the extent plaintiffs intended to assert the negligence cause of action as a survival action on William’s behalf, they had failed to comply with the notice of claims procedures of Code
of Civil Procedure section 377.32. Plaintiffs argue that the trial cour t erred in granting the motion because (1) the negligence cause of action was base d on section 815.2, which makes public entities vicariously liable for their employees’ negligence, and (2) plaintiffs, as William’s wife and children, are in a class of persons who are the reasonably foreseeable victims of defendants’ negligence. Plainti ffs fail to show how the lack of a duty under section 845.6 can be overcome, no matter who the plaintiffs are, or whether the public entity or its19 employees committed the allegedl y negligent acts or omissions . The court did not err in granting the motion for judgment on the pl eadings of the second cause of action. Plaintiffs also argue that the trial court abused its di scretion by failing to grant them leave to amend their complaint. In the trial court, plaintiffs requested leave to amend to allege the duties they claimed we re created by the police department’s policy manuals. As explained, ante , there is no evidence the manuals were passed by the Legislature or adopted pursuant to the Administ rative Procedure Act, and, therefore, they cannot create a duty that would supersede the grant of immunity under section 845.6. (Evid. Code, § 669.1; Lugtu v. California Highway Patrol , supra , 26 Cal.4th at pp. 720-721; Strong v. State of California , supra , 201 Cal.App.4th at pp. 1451-1452.)
The trial court did not abuse its discretion in denying the request for leave to amend.

D. Additional Arguments Plaintiffs argue the motion for summary judgment and/or summary adjudication was procedurally defective be cause each defendant filed a separate statement of undisputed material facts, rather than filing one single statement. Code of Civil Procedure section 437c, subdivision (b)( 1) does not preclude multiple parties from filing their own separate statements, and a ny party joining anothe r’s motion for summary judgment must file his, her, or its own separate statement. ( Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.) The individual separate statements filed by each defendant did
not violate Code of Civil Procedur e section 437c, subdivision (b)(1).
Plaintiffs contend that the notice of the motion for summary judgment and/or summary adjudication was defective becau se it failed to repeat each of the issues on which summary adjudication was sought 12 se parate times to address the 12 separate statements of undisputed mate rial facts. The notice addre ssed each cause of action and each issue on which summary adjudica tion was sought, and was proper.20 Plaintiffs also argue the summary judgment motion should have been denied because it was based on the same argum ents defendants raised in two earlier filed demurrers. We reject outright any contentio n that a trial court’s order overruling a demurrer bars a later summary judgment motion ra ising the same or a similar argument.

D ISPOSITION The judgment is affirmed. In the inte rests of justice, no party shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.