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Filed 8/21/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

YOLANDA FRAUSTO et al.,

Plaintiffs and Respondents,

v.

DEPARTMENT OF THE 

CALIFORNIA HIGHWAY PATROL 

et al.,

Defendants and Appellants.

 A156552

 (Alameda County Super. Ct.

 Nos. RG16809897 &

 RG17857166)

John Anthony Cornejo died of a methamphetamine overdose at 

Highland Hospital on March 30, 2015, after having been arrested by 

California Highway Patrol officers during a traffic stop and observed to put in 

his mouth and swallow something that he insisted was gum, not drugs. 

Cornejo declined repeated offers of medical attention and no symptoms of 

drug intoxication were observed until after he had been transferred to the 

custody of deputy sheriffs at the county jail. 

This appeal is from a jury verdict in favor of Cornejo’s parents in a suit 

for wrongful death predicated on the negligence of the officers who took 

Cornejo to jail rather than to the hospital, and from the trial court’s order 

denying a motion for judgment notwithstanding the verdict. Defendants

maintain the officers had no duty to obtain a medical examination for Cornejo 

in the circumstances presented; that they fulfilled the scope of any duty they 

may have had by taking him to a jail with medical staff on site; and that their 
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failure to take him to the hospital was not a proximate cause of his death. 

They further contend the trial court erred in ruling the jury could not 

consider Cornejo’s intentional act of swallowing the methamphetamine in 

allocating comparative fault and in denying defendants’ motion in limine to 

exclude evidence and argument that the officers attempted to coerce an 

admission to possession of a controlled substance by conditioning medical 

treatment on Cornejo’s admitting he swallowed a controlled substance. We

affirm.

PROCEDURAL BACKGROUND

Plaintiffs Yolanda Frausto and Norman Cornejo, parents of John

Anthony Cornejo, sued defendants, the California Highway Patrol (CHP) and 

individual CHP officers in state court for negligence, wrongful death, survival 

action and violation of the Tom Bane Civil Rights Act (Bane Act) (Civ. Code, 

§ 52.1 [interference with legal rights by threat, intimidation or coercion]). 

The case was removed to federal court after the complaint was amended to 

include a cause of action for violation of civil rights under title 42, United 

States Code section 1983. The federal court apparently granted the CHP 

defendants’ motion for summary judgment on the federal claim and declined 

to exercise jurisdiction over the state claims.1

Plaintiffs returned to state court with a complaint against the CHP and 

four of its officers, Michael Diehl, Zachary Trezeniewski, Cosimo Bruno and 

David Hazelwood, Jr. The case ultimately went to trial on the negligence 

claim in the fourth amended complaint, after the trial court sustained 

without leave to amend a demurrer to the Bane Act cause of action and 

 

1 Defendants’ brief represents that the federal court found plaintiffs 

failed to raise a genuine issue of material fact as to whether the officers 

violated their constitutional rights and whether the officers were entitled to 

qualified immunity. 
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granted defendants’ motion for judgment on the pleadings as to the survival 

action. Plaintiffs dismissed their claims against Trezeniewski during trial. 

The jury returned a special verdict against defendants in the amount of 

$827,544.00, allocating comparative fault 35 percent to Diehl, 13 percent to 

Bruno, 30 percent to Hazelwood, and 22 percent to Cornejo. After judgment 

was entered, defendants unsuccessfully moved for judgment notwithstanding 

the verdict. This appeal followed.

FACTUAL BACKGROUND

About 4:00 a.m. on March 29, 2015, CHP Officers Diehl and 

Trezeniewski stopped a car for driving with fog lights but no headlights 

illuminated, in violation of Vehicle Code section 24250. Diehl approached the 

passenger side while Trezeniewski approached the driver, who identified 

himself as “Norman” Cornejo. There were three passengers in the car. 

Checking the name and birthdate given by the driver, the officers learned he

was unlicensed. Trezeniewski called for backup due to the number of people 

in the car. Hazelwood and Bruno were among the officers who responded to 

the scene. It was Bruno’s third day on the job and Hazelwood was his field 

training officer, his first time acting in this role. 

Diehl approached the driver’s side and asked Cornejo to get out of the 

car. As Cornejo opened the car door, Diehl saw he was not wearing a left 

shoe and detected the odor of alcohol coming from the car. Diehl conducted a 

patdown search at the back of Cornejo’s car, after which Cornejo moved his 

right hand in front of his mouth. Diehl asked Cornejo if the reason his shoe 

was off was that he had “put dope in his shoe.” Cornejo said no and kicked 

his shoe toward Diehl. As he walked with Cornejo to the front passenger side 

of the vehicle to begin field sobriety tests, Diehl asked if Cornejo had 

anything in his mouth and when Cornejo started to answer, Diehl observed a 
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“chewing motion.” Cornejo said it was gum. Diehl asked Cornejo to spit out 

whatever was in his mouth; he denied telling Cornejo to “spit the bag out.” 

Cornejo became very nervous, backing away from Diehl while raising his 

arms in front of his face and “swatting” at Diehl, then turning and starting to 

run. According to Diehl, Cornejo had had his back to Officers Hazelwood and 

Bruno, who were about 20 feet away. Diehl and other officers grabbed 

Cornejo and brought him to the ground as Cornejo pulled his arms and hands 

away and yelled that he only had gum. The officers took Cornejo into 

custody. 

Cornejo said he had decided to swallow his gum. Diehl searched the 

area in case Cornejo had discarded something but did not find anything. He

asked if Cornejo had swallowed any drugs, and Cornejo said it was only gum. 

Diehl explained to Cornejo that if he “made a mistake and swallowed drugs,” 

Diehl “would need to call for medical staff to ensure his health would not be 

affected.” A search of Cornejo’s vehicle revealed a methamphetamine pipe 

and Brillo pad, which Diehl testified is commonly used by crack cocaine 

users. 

Diehl acknowledged that during training, he was told he was required 

to obtain medical treatment for an arrestee if he thought it was necessary; 

that if he thought Cornejo had swallowed drugs, he would have an obligation 

to call for medical staff; that it was common for people he arrested to lie to 

him; and that he told the other officers on the scene he believed Cornejo had 

swallowed a controlled substance. Diehl’s report stated, “ ‘Based upon my 

training and experience the substance in which Cornejo had swallowed was 

suspected to be a controlled substance.’ ” 

Diehl testified that the California Highway Patrol Officer Safety

Manual (CHP Manual) requires taking a person to the hospital, or calling an 
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ambulance, when the person is in need of medical attention, even if the 

person is not exhibiting physical symptoms. He testified that not all drugs 

“require a medical call” and he would determine which required medical 

attention based on “signs and symptoms of potential overdose.” During the 

approximately one hour he was at the scene, Diehl never saw Cornejo exhibit 

signs of being under the influence of a stimulant. Cornejo did not appear to 

be in need of medical attention: He had no outward signs of illness or 

medical distress and he said there was nothing wrong with him. 

Asked, “the only way you were going to take [Cornejo] to the hospital 

was if he admitted that he had an illegal drug in his possession, right,” Diehl 

replied, “[d]epending on what it was that he said he swallowed, yes.” Diehl 

denied his intention in asking Cornejo what he swallowed was to get Cornejo 

to incriminate himself, and testified that he did not intend to use Cornejo’s

statement to support a criminal charge. Diehl testified that once a person 

had ingested drugs, the ingested substance would not support a criminal 

charge; the concern at that point would be to make sure the person was not 

harmed. If Cornejo had admitted ingesting methamphetamine, Diehl would 

not have recommended that the district attorney charge Cornejo; his main 

focus would have been to get Cornejo to the hospital. 

Trezeniewski, who was primarily focused on the three remaining 

occupants in the car, did not see Cornejo put anything in his mouth or see 

him with a plastic baggie. While Diehl and Cornejo were on the ground,

Trezeniewski heard Diehl shout “[s]pit it out” or “[g]et it out of your mouth” 

but did not hear him say “[s]pit out the bag.” Trezeniewski agreed that if he 

saw an arrestee put in his or her mouth a plastic baggie he presumed 

contained a controlled substance, the person would need medical attention. 

He would not take someone to the hospital for “any” controlled substance, 
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however, and he would rely on the person to be honest about what he or she 

had taken. 

Hazelwood testified that he heard Diehl ask, “[w]hat did you put in 

your mouth” and Cornejo say, “[i]t’s gum,” and saw Diehl reach toward 

Cornejo and Cornejo “swipe” his hand toward Diehl’s hand and back away. 

After Cornejo had been handcuffed, he talked about his shoulder being 

injured from a prior injury. Hazelwood asked Cornejo what he had put in his 

mouth and Cornejo said it was gum. Hazelwood told him, “If it’s anything 

other than that, you need to tell us because you could die from it. It’s 

dangerous.” Cornejo repeated, “It’s gum.” Hazelwood did not hear anyone 

yell, “[s]pit out the bag,” during Cornejo’s arrest. He did not remember 

whether he heard Diehl say he believed Cornejo had swallowed a controlled 

substance. At the time Hazelwood put Cornejo in his patrol car, he believed 

Cornejo had swallowed gum. He acknowledged that he had had arrestees lie 

to him “occasionally.” 

Bruno testified that Cornejo “swatted his hand across his face and his 

mouth” and was chewing; Diehl told him to spit out what he had, and Cornejo 

said it was gum, then tried to flee. After being handcuffed, Cornejo said his 

arm hurt from a previous injury and declined an offer of medical attention. 

Bruno asked Cornejo if he had swallowed something and Cornejo said it was 

gum, which Bruno believed because Cornejo seemed sincere and “at that 

stage of my career, I didn’t think that anyone was really going to lie about 

something.” After the attempt to flee, Cornejo was “calm and respectful.” 

Bruno did not see a plastic baggie in Cornejo’s mouth or in his hand, 

Hazelwood did not tell Bruno he saw a plastic baggie in Cornejo’s mouth, and 

Diehl did not tell Bruno he believed Cornejo had swallowed a controlled 
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substance. Bruno searched Cornejo and found nothing on him, and Bruno did 

not see any gum wrappers or packets in the vicinity of the arrest. 

Sergeant John Koven received a call to respond to the arrest scene due 

to a possible use of force and possibility the arrestee had put an unknown 

substance into his mouth. He arrived at the scene after Cornejo had been 

handcuffed and was lying on the sidewalk, complaining about being in pain. 

Cornejo said his collarbone was hurting from a previous injury and declined 

Koven’s offer of medical attention. Diehl told Koven he saw Cornejo put his 

hand in front of his mouth, then noticed him chewing and several times 

asked what Cornejo had put in his mouth and whether it was drugs, and that 

Cornejo said it was gum. Koven told Cornejo, “if it’s gum, we don’t have a 

problem, but if it’s any type of illegal drugs or contraband, we need to get 

some medical attention because there could be some problems, depending on 

the amount, if you did swallow that.” Cornejo was cooperative and polite, 

answered all Koven’s questions and stated definitively and without 

equivocation that what he swallowed was gum, not drugs. Koven told 

Hazelwood to let the jail staff know Cornejo had put something in his mouth, 

the CHP officers could not confirm what it was but Cornejo said it was gum. 

Koven testified that Diehl did not tell him he believed Cornejo had 

swallowed a controlled substance and neither Bruno nor Hazelwood reported 

having seen Cornejo place what appeared to be a plastic baggie in his mouth. 

If they had, CHP policy would have required a medical examination. Asked if 

he would agree that “an arrestee should not be required to incriminate 

himself in order to obtain medical treatment,” Koven replied, “everyone is 

free from self-incrimination.” 

Hazelwood and Bruno left the scene to take Cornejo to the Santa Rita 

Jail in Dublin, about half an hour away. Cornejo asked if he could be taken 
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instead to the Glenn E. Dyer Detention Facility, two or three minutes away, 

because it would be too hard for him to get home from Dublin in the morning, 

and Hazelwood agreed. At the gate where the Alameda County sheriffs 

receive arrestees, there was a conversation about Cornejo’s medical 

conditions, but Hazelwood did not remember whether the jail nurse was 

there or just a deputy sheriff. Cornejo was asked a series of questions such 

as whether he had consumed drugs or alcohol, had diabetes or epilepsy. 

Hazelwood informed the deputy Cornejo had swallowed something, saying 

“[w]e didn’t know what it was, but he had told us it was gum.” He heard 

Cornejo tell the deputy, “I swallowed gum.” Neither Hazelwood nor Bruno 

told the deputy Cornejo might have swallowed a plastic baggie they believed 

contained a controlled substance. 

Hazelwood and Bruno arrived back at the office around 6:00 a.m. 

Bruno drafted the documents related to the arrest and Hazelwood, as field 

training officer, reviewed them. Normally one of the officers who made the 

enforcement stop would be the “arresting officer” responsible for the 

paperwork but Diehl had suggested Bruno be the arresting officer as a 

“training opportunity,” and Hazelwood agreed. 

One of the documents Bruno drafted was the declaration of probable 

cause, the document supporting probable cause for an arrest, which is signed 

under penalty of perjury. The probable cause declaration included the 

following: “Officer Hazelwood and I observed Cornejo swat his right hand at 

his mouth and appeared to place what looked like a plastic baggie in his 

mouth. . . . Officer Diehl instructed Cornejo to spit out the bag, however, he 

refused, claiming it was only gum. Officer Diehl once more commanded 

Cornejo to spit the ‘gum’ onto the ground and again he refused.” The arrest 

report Bruno drafted did not mention a bag or baggie: Bruno wrote that he 
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observed Cornejo “swat his right hand at his mouth” and then “chew on the 

object very rapidly,” and that Diehl instructed Cornejo to “ ‘spit out the item 

in his mouth’ ” but Cornejo “refused, claiming that ‘it was only gum.’ ” 

Bruno testified that the statements in the probable cause declaration 

about a plastic baggie were mistakes, and that there were several other 

mistakes in the declaration as well.2 He could not explain why he used the 

term “plastic baggie” in the probable cause declaration. He testified that he 

did not see a plastic baggie at the scene and he did not hear Diehl tell Cornejo 

to “[s]pit out the bag,” just to “spit it out.” The reference to a plastic baggie in 

the probable cause declaration was first called to his attention at his 

deposition in the present case; he was surprised, and said it was a mistake. 

Bruno agreed that if Cornejo had put a plastic baggie in his mouth, he should 

have received medical treatment. 

Bruno testified that the probable cause declaration was submitted after 

he drafted and signed it, he did not see it again and he could not have made 

changes to it unless it was sent back to him. The arrest report remained on 

the computer system and could be revised. Bruno learned Cornejo had died 

when he came to work on April 3, after which he added this information to 

the arrest report. He denied having conversations with anyone at CHP about 

deleting references to a plastic baggie from the arrest report. 

Questioned at trial about the probable cause declaration, Diehl testified 

that he had not seen it before and the reference to a bag was a mistake; he 

did not tell Cornejo to spit out a bag, did not see a plastic baggie in Cornejo’s 

hand or mouth, and did not tell Bruno he saw a plastic baggie in Cornejo’s 

 

2 Other mistakes he described were stating Cornejo’s first name as 

“Robert” when the name he had been given was “Norman” and indicating the 

date as March 22, 2015, rather than March 29, 2015. 
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mouth. Diehl acknowledged that at his deposition, when asked if he recalled 

“a plastic baggie being in Cornejo’s hand,” he replied, “Not in his hand. If I 

was giving descriptions, it is what I observed in his mouth.” Diehl 

acknowledged at trial that he did not believe Cornejo’s statement that he only 

swallowed gum. 

Hazelwood testified that he “probably” reviewed the probable cause 

declaration and did not recall whether he made any corrections, as “[t]his is 

between Officer Bruno and the judge.” As field training officer, Hazelwood 

reviewed Bruno’s reports and occasionally suggested revisions for 

grammatical errors. He acknowledged that if he had seen the statement 

indicating he saw Cornejo put a plastic baggie in his mouth and in fact he 

had not seen Cornejo do this, he would have told Bruno so at the time and 

asked Bruno to correct the declaration of probable cause. Hazelwood 

testified, however, that he did not see this sentence when he reviewed the 

document; the reference to a plastic baggie was first brought to his attention 

at his deposition. He also did not see the sentence in Bruno’s report saying 

“Officer Diehl instructed Cornejo to spit out the bag.” Hazelwood testified 

that he did not see Cornejo put anything in his mouth, as Cornejo’s back was 

to him, and he did not hear Diehl tell other officers he believed Cornejo had 

swallowed a controlled substance. 

Deputy Sheriff Ivan Stewart, the intake officer on duty when Cornejo 

was brought to Glenn E. Dyer Detention Facility, about 5:30 a.m., testified 

that there was no nurse at the gate. The procedure was for the intake deputy

to ask the arrestee a series of medical screening questions and summon a 

nurse if any were answered in the affirmative. Stewart remembered one of 

the CHP officers saying that Cornejo had said he swallowed gum, and during 

intake, Cornejo said the same thing. Cornejo responded “no” when asked if 
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he was taking prescription medication, was under the influence of drugs or 

alcohol, or had an addiction to drugs or alcohol. Despite this response, 

Stewart marked “yes” on the form for “is the arrestee under the influence of 

drugs/alcohol,” and circled “drugs.” He did so in an effort to be “extra 

cautious” and alert the nursing staff who would be conducting a full 

screening before Cornejo entered the general jail population, because the 

arrest report indicated Cornejo had been arrested for possession of drug 

paraphernalia, along with “everything I was told regarding the fact that he 

had swallowed gum.” The CHP officers did not tell Stewart that Cornejo 

swallowed a plastic baggie or that they believed he swallowed a controlled 

substance. If they had, Stewart would have summoned a nurse. Cornejo 

appeared calm and lucid, not showing any signs of medical distress. 

Deputy Sheriff Kevin Beyrodt noticed Cornejo waiting for further 

processing and recognized him as having previously been through the facility. 

Knowing Cornejo to “not be a problem,” Beyrodt took him into a secondary

cell to continue his screening. The jail had two holding cells for single 

occupants in use at the time, with three-foot square windows in the steel 

doors that allow seeing “pretty much every corner” of the cell. The cells have 

adjoining walls and one of the two cells is directly across from the nurse’s 

station. 

Cornejo told Beyrodt he had been charged with resisting arrest after 

the CHP officers thought he had swallowed something and Cornejo said it 

was gum. Cornejo’s demeanor was “lighthearted” and unconcerned, giving 

the impression he thought the officers had made a mistake. Beyrodt told him 

the jail had medical staff if he needed assistance; he could be taken to a 

hospital to have his stomach pumped; and if he did not want to tell anyone 
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what he had ingested, there were toilets in the cell that no one monitored in 

which he could throw up or otherwise expel something from his body. 

Beyrodt went to Cornejo’s cell at least four times that morning, each 

time asking if he needed medical attention. Cornejo declined each offer, 

saying there was nothing to be concerned about. Beyrodt reminded Cornejo 

that he could expel anything himself and no one would know. Beyrodt 

testified that he had a good rapport with Cornejo; he did not believe Cornejo 

had swallowed a controlled substance but continued to raise the subject 

because “that’s the last thing I want to have happen, so it’s just something 

I’m going to mention.” 

Beyrodt and another deputy escorted Cornejo to have a booking 

photograph taken at 6:08 a.m. When Beyrodt came to get him, Cornejo’s 

shoes were off and he was starting to sweat; Cornejo said he was hot. 

Beyrodt told Cornejo “you are acting different” and asked if anything was 

going on, and Cornejo said he had used cocaine prior to his arrest. Beyrodt 

again offered medical attention and Cornejo again declined. 

When Cornejo went back to the cell after the booking photograph, he

was still sweating and he was acting “slightly different . . . a little jovial,” but 

communicating and lucid. After leaving the intake area, Beyrodt heard a 

radio broadcast of a “man down” in a holding cell and returned to see Cornejo 

on the floor, shaking, with foam in his mouth. Two or three deputies and the 

nurse were already there and an ambulance had been called. After Cornejo 

was taken by the paramedics, Beyrodt saw vomit in his cell and “bologna or 

something” but he was not sure if it was from Cornejo or “prior.” 

Medical examiner Paul Hermann performed the autopsy on Cornejo on 

April 1, and concluded he died of acute methamphetamine intoxication. 

Herrmann looked for evidence that Cornejo had swallowed baggies 
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containing drugs and found no plastic or other foreign material in his 

gastrointestinal tract. 

CHP Lieutenant Eric Jones testified as the CHP’s designated “person 

most knowledgeable” regarding issues in the present case, and the jury was 

instructed to regard his testimony as that of the CHP. He testified that 

section 100.69 of the CHP Manual states, “Officers shall arrange for a 

medical examination whenever a prisoner appears to be in need of or 

requests medical attention, regardless of outward symptoms of illness or 

injury.” “Arrange for a medical examination” is not defined in the CHP 

Manual but examples would include calling an ambulance or taking someone 

to the hospital. Asked how someone would appear to be in need of medical 

attention without outward symptoms of illness or injury, Jones offered as an 

example that a person involved in a serious car accident should get medical 

attention even without obvious lacerations or broken bones. He testified that

an officer should obtain medical treatment for someone displaying outward 

injury even if the person declines medical treatment. Asked if the policy 

would require officers to arrange for a medical examination if they observe 

suspected ingestion of drugs, Jones said that specific scenario was not 

covered in the policy and officers would be expected to use sound professional 

judgment to determine whether medical attention was needed. In some 

circumstances, taking an arrestee to a jail staffed with medical professionals 

could satisfy the requirement to arrange for a medical examination, 

depending on the procedures and staffing of the particular jail. 

Dr. Edward Cetaruk, an emergency physician and medical toxicologist 

who practices in Colorado, testified as plaintiffs’ expert in emergency 

medicine and toxicology. Of the 10 or 15 patients Dr. Cetaruk had personally 

treated who opportunistically ingested a controlled substance, none had died. 
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In one study he had reviewed, the Oregon Poison Center reported that of 55 

patients who had opportunistically swallowed methamphetamine in an 

attempt to conceal it, the only fatality was a person who had a heart attack 

before arriving at the hospital. 

Dr. Cetaruk opined that if Cornejo had been taken to the hospital after 

his arrest, he more than likely would have survived. He explained that the 

earlier a person in this situation is treated, the more opportunity there is to 

avoid or treat toxicity. Methamphetamine does not cause problems while still 

in the gastrointestinal tract; its effect occurs when it is absorbed. 

Methamphetamine increases heart rate and blood pressure, dilates the pupils 

and causes a cold, clammy sweat; with more toxicity, there can be a change in 

mental status such as confusion, delirium, seizures or coma, very high body 

temperature, nausea, vomiting, and respiratory failure. There is no antidote 

for amphetamines, so treatment consists of administering drugs to counteract 

their effects and supportive care for symptoms. If brought to the emergency 

room before cardiac arrest or another severe event, the person survives more 

often than not. 

Assuming police officers saw Cornejo swallow a plastic baggie they 

believed contained a controlled substance and Cornejo said he only swallowed 

gum, if Cornejo had been taken to an emergency room, the typical practice 

would be observation for 6 to 24 hours. In Dr. Cetaruk’s experience, some 

prisoners in this situation are “forthcoming” with their histories and others 

are not; many do not want treatment. An individual in custody who refused 

treatment would be kept for observation, with the police officer remaining 

present. If signs of toxicity occur and the prisoner consents, agents can be 

given to remove the suspected substance from the gastrointestinal tract and 

avoid further absorption. Patients who have not consented to treatment and 
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become clearly ill and unable to make appropriate decisions would be placed 

on a drug and alcohol hold and treated against their will. In Colorado, a 

doctor acting in good faith and providing treatment a “normal” person would 

consent to can impose an alcohol or drug hold unilaterally; Dr. Cetaruk did 

not know what the procedure would be for such a hold in California. 

Dr. Cetaruk testified that the records indicated Cornejo was lucid when 

he was arrested and booked into jail; this would have been the appropriate 

time for observation based on suspicion but not for an alcohol or drug hold. 

Observation could be in a jail rather than a hospital if the jail had “a medical 

facility that was capable of properly observing” the prisoner. 

Dr. Cetaruk testified that toxicology testing detected 

methamphetamine and amphetamine in Cornejo’s blood drawn at 9:46 a.m. 

on March 29.3 Amphetamine occurs as methamphetamine is metabolized, so 

the ratio of methamphetamine to amphetamine indicates how recently the 

methamphetamine was ingested. Cornejo’s ratio, about 21:1, indicated

ingestion in the preceding few hours. Dr. Cetaruk estimated Cornejo 

ingested “in the order of a few grams or a couple grams” based on the degree 

of his toxicity. 

Plaintiffs’ medical expert, emergency physician Dr. Gary Tamkin, also

testified that the sooner medical treatment is received by a person who has 

ingested an unknown amount of a controlled substance, the higher the 

person’s chances of survival. Within the first hour after ingestion, methods 

for removing the substance and preventing absorption—stomach pumping or 

treatment with charcoal—can be attempted, albeit not without risk; after a 

few hours, only supportive treatment is available, treating complications as 

they arise. By the time Cornejo started showing signs of toxicity, around 7:00

 

3 No cocaine was found. 
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a.m., it was too late for decontamination by means of stomach pumping or 

charcoal absorption. 

Dr. Tamkin testified that he is expected to speak privately with an 

arrestee who is brought to the emergency room, because an arrestee is 

entitled to the same medical privacy as other patients. In his experience with 

hundreds of arrestees brought to the emergency room, he had never 

personally had an arrestee who was refusing treatment admit swallowing a 

controlled substance after telling the officer otherwise. Asked what he would 

do if law enforcement brought an arrestee to the emergency room and said 

they saw him swallow a baggie of what they believed to be drugs and found a 

methamphetamine pipe in his car, Dr. Tamkin said he would speak to the 

arrestee in private and try to convince him to consent to treatment; absent 

consent, he would hold the arrestee for observation for 6 to 12 hours. Even if 

the arrestee denied ingestion, once he was discharged it would be with 

printed instructions indicating what signs and symptoms to watch for. 

Tamkin testified that patients have a right to refuse medical treatment 

as long as they are able to understand their situation and make informed 

decisions about their care. In California, physicians can take over medical 

decision making if the patient is not able to assess the situation and make 

decisions, but the determination that the patient is incapable must be made 

by two physicians. 

Dr. Tamkin testified that it was impossible to answer the question 

whether there was a point at which Cornejo could not have been saved: His 

chances of survival would have been better the sooner he was treated, but 

even at the point he was found having seizures, although his chances would 

have been significantly reduced, survival was not impossible. He had 

testified at his deposition that Cornejo more likely than not would have 
17

survived if he had admitted to officers on the scene that he swallowed 

methamphetamine, was immediately taken to the hospital, and admitted the 

ingestion to hospital staff. 

David Fairbrother, plaintiffs’ expert on police policy and practices, 

opined that the officers exercised a “less than satisfactory level of care” by 

failing to correctly establish that Cornejo “was a victim of drug ingestion in 

combination possibly with alcohol” and needed medical care. He testified 

that the officers ignored the indications that Cornejo ingested drugs to avoid 

prosecution and failed to fully investigate his condition with basic field 

sobriety tests, and the supervisor called in because the officers thought 

Cornejo was trying to conceal something, failed to provide adequate 

supervision.4 The CHP policy requiring a “medical examination,” to 

Fairbrother, means bringing the prisoner to a medical facility with a 

physician, most likely an emergency room. How a person would appear to be 

in need of medical attention without “outward symptoms of illness or injury”

would be “very circumstantial” but would include a serious car accident, 

poisoning or drug overdose, where a person might not show symptoms 

initially but “if you are aware that that’s happened, then they’re going to 

have to be medically cleared.” Fairbrother testified that under the CHP 

policy, Cornejo was not required to incriminate himself by revealing he 

swallowed methamphetamine in order to get medical treatment. His

 

4 The combination of circumstances Fairbrother discussed as indicating 

Cornejo swallowed drugs to avoid a felony charge were that he was pulled 

over in “an urban area known for drug use” for driving without headlights, “a 

classic sign of somebody under the influence”; the car smelled of alcohol; 

Diehl thought Cornejo might have taken a plastic baggie from his shoe and 

put it in his mouth; Cornejo chewed rapidly, resisted the officer, and tried to 

flee; there was no odor of gum or sign of gum wrappers; and a 

methamphetamine pipe and Brillo pad were found in the car. 
18

opinions were based in part on the officers’ observation of a plastic bag, which 

alarmed him because methamphetamine in a plastic bag would be “many 

servings.” He acknowledged that Diehl was trying to help Cornejo get 

medical attention when he warned Cornejo he needed to tell the officers if he 

swallowed drugs, and that Cornejo could have requested medical attention 

without explanation and received it, and in fact declined medical attention 

for his shoulder. 

Clarence Chapman, defendants’ expert on law enforcement practices 

and procedures, testified there was no reason for Diehl to do further field 

sobriety tests after Cornejo’s attempt to flee because Cornejo was already 

being arrested for resisting an officer and possession of drug paraphernalia 

and it would have been irresponsible for the officers to unrestrain him. 

Chapman testified that the officers determined Cornejo did not appear to be 

in need of medical attention and opined that the officers’ decision to take 

Cornejo to the Glenn E. Dyer Detention Facility was reasonable. 

DISCUSSION

I.

“A plaintiff in a negligence suit must demonstrate ‘ “a legal duty to use 

due care, a breach of such legal duty, and the breach as the proximate or 

legal cause of the resulting injury.” ’ (Beacon Residential Community Assn. v. 

Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)” (Vasilenko v. 

Grace Family Church (2017) 3 Cal.5th 1077, 1083.) “The existence of a duty 

is a question of law, which we review de novo.” (Ibid.)

Defendants argue that an officer has no legal duty to obtain a medical 

evaluation for an arrestee who is suspected of having ingested a controlled 

substance but declines medical assistance and shows no signs of drug 

ingestion while in the officer’s custody. 
19

“Public employees are liable for injuries resulting from their acts or 

omissions to the same extent as private persons, except where otherwise 

exempted or immunized by law. ([Gov. Code,] § 820.) Public entities are 

correspondingly liable for the negligent acts or omissions of their employees 

acting within the scope of their employment except where either the 

employee or the public entity is immunized from liability by statute. ([Gov. 

Code,] § 815.2.) . . . Where a legal duty is not created by statute, the question 

of whether a legal duty exists is analyzed under general principles of tort 

law.” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 264.)

“ ‘The most important of [the] considerations in establishing duty is 

forseeability. As a general principle, a “defendant owes a duty of care to all 

persons who are foreseeably endangered by his conduct, with respect to all 

risks which make the conduct unreasonably dangerous.” ’ (Tarasoff v. 

Regents of University of California (1976) 17 Cal.3d 425, 434–435, 

quoting Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399.)” 

(Giraldo v. Department of Corrections & Rehabilitation (2008) 168 

Cal.App.4th 231, 245 (Giraldo).) As will be further discussed, while there is 

generally no duty to come to the aid of another, such certain relationships do 

give rise to a duty of care. (Giraldo, at p. 245.)

Preliminarily, plaintiffs argue that defendants cannot disclaim the 

existence of a legal duty because they stipulated at trial to a jury instruction 

stating, “An officer has a duty not to increase the risk of harm to someone in 

his custody.”5 

 

5 This argument was initially raised in a motion to dismiss this appeal, 

which we took under submission and now deny. The issues raised in the 

motion to dismiss will be addressed in this opinion. 
20

Defendants argue they are not precluded from raising the issue of duty 

because they stipulated to the instruction above only after the trial court 

ruled against them on this issue in the context of their demurrer to plaintiffs’ 

third amended complaint. In their demurrer, defendants argued that the 

cause of action for negligence failed to plead facts imposing a duty to take 

Cornejo anywhere other than jail. In opposition, plaintiffs argued that once 

Cornejo was taken into custody, a special relationship was created that 

imposed upon the officers a duty to arrange for medical attention when they 

saw Cornejo swallow a plastic baggie containing what they presumed to be a 

controlled substance. The trial court sustained the demurrer to the first 

cause of action with leave to amend “to allege a claim for negligence based 

solely on Government Code section 815.2” and stated, “the court is currently 

inclined to find that plaintiffs have alleged facts that, if true, may give rise to 

a duty pursuant to Government Code [section] 815.2. (See Third Amended 

Complaint paragraphs 10-21.)”6 The fourth amended complaint contains the 

same allegations referenced in the trial court’s order. 

The jury instruction to which defendants agreed—which they do not 

challenge on this appeal—acknowledged the existence of a duty defined much 

more generally than the duty the parties dispute on this appeal. Defendants

made clear in the trial court, through the demurrer and their trial brief 

arguing they had no duty to take Cornejo to the hospital given the absence of 

 

6 Further statutory references will be to the Government Code except 

as otherwise specified.

Section 815.2, subdivision (a), provides: “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.”
21

any signs of drug intoxication and Cornejo’s refusal to accept medical 

attention, their disagreement with the claim that they had a duty to arrange 

for medical care in the circumstances of this case. Neither the jury 

instruction they accepted nor the statement in their brief that “[i]f a need for 

immediate medical care of an arrestee is apparent, the law imposes liability 

for a failure to summon such care” necessarily contradicts their argument 

that they did not have a duty to take Cornejo to the hospital.

Plaintiffs also contend defendants are precluded from arguing lack of 

duty because they did not make this argument during trial or in their motion 

for judgment notwithstanding the verdict. As just described, however, 

defendants did argue lack of duty in their demurrer; the trial court ruled 

against them. Plaintiffs point out that in argument to the jury, defendants 

described negligence as the “failure to use reasonable care to prevent harm to 

oneself or to others” and discussed the concept of reasonableness, but did not 

address the issue of duty. As the “existence and scope of duty are legal 

questions for the court” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477),

it is not clear what plaintiffs think defendants should have argued to the jury 

on the issue of duty.

As to the judgment notwithstanding the verdict, plaintiffs cite Lee v. 

West Kern Water Dist. (2016) 5 Cal.App.5th 606, 635, which held that a party 

appealing the denial of a motion for judgment notwithstanding the verdict 

could not rely upon an argument not raised in the motion in the trial court. 

Here, however, defendants appealed from the judgment as well as from the 

order denying their motion for judgment notwithstanding the verdict. Their

argument concerning the issue of duty is directed at the judgment, not at the 

order denying the motion for judgment notwithstanding the verdict. 
22

Defendants argue that in the circumstances of this case, no duty is 

established by statute, by the special relationship doctrine or under the 

factors enumerated in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland).

7 

In their view, no statute imposes a duty on officers to obtain medical care for 

an arrestee; no special relationship was created because the officers took no 

affirmative action increasing the risk to Cornejo, who created his own peril by 

swallowing the methamphetamine, and Cornejo did not detrimentally rely 

upon the officers for assistance; and there was no basis for the officers to 

override Cornejo’s constitutional right to refuse medical treatment.

Plaintiffs point to the statutes generally making public employees 

liable in negligence to the same extent as a private person, and public entities 

liable if the employees were acting within the scope of their employment (Civ. 

Code, § 1714; Gov. Code, §§ 820, 815.2.)8 Plaintiffs main argument, however, 

 

7 Civil Code section 1714, subdivision (a), provides: “Everyone is 

responsible, not only for the result of his willful acts, but also for an injury 

occasioned to another by his want of ordinary care or skill in the 

management of his property or person, except so far as the latter has, 

willfully or by want of ordinary care, brought the injury upon himself . . . .” 

Rowland explained that “[a] departure from this fundamental principle 

involves the balancing of a number of considerations; the major ones are the 

foreseeability of harm to the plaintiff, the degree of certainty that the 

plaintiff suffered injury, the closeness of the connection between the 

defendant’s conduct and the injury suffered, the moral blame attached to the 

defendant’s conduct, the policy of preventing future harm, the extent of the 

burden to the defendant and consequences to the community of imposing a 

duty to exercise care with resulting liability for breach, and the availability, 

cost, and prevalence of insurance for the risk involved.” (Rowland, supra, 69 

Cal.2d at pp. 111–113.)

8 Plaintiffs additionally point to section 845.6, which provides in part, 

“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 in need of immediate medical care and he fails to 

take reasonable action to summon such medical care.” Plaintiffs recognize 
23

is that once Cornejo was arrested, a special relationship was created that 

gave rise to a duty of care.

“ ‘As a rule, one has no duty to come to the aid of another. A person 

who has not created a peril is not liable in tort merely for failure to take 

affirmative action to assist or protect another unless there is some 

relationship between them which gives rise to a duty to act.’ (Williams v. 

State of California [(1983)] 34 Cal.3d [18,] 23.) More specifically, ‘law 

enforcement officers, like other members of the public, generally do not have 

a legal duty to come to the aid of [another] person . . . .’ (Lugtu v. California 

Highway Patrol, supra, 26 Cal.4th at p. 717.)” [¶] Liability may be imposed if 

an officer voluntarily assumes a duty to provide a particular level of 

protection, and then fails to do so (see Williams, . . . at pp. 23–24 & fn. 3;

Baker v. City of Los Angeles (1986) 188 Cal.App.3d 902, 908), or if an officer 

undertakes affirmative acts that increase the risk of harm to the plaintiff.

(See Benavidez v. San Jose Police Dept. [(1999)] 71 Cal.App.4th [853,]

863; Mann v. State of California (1977) 70 Cal.App.3d 773, 780.)” (Zelig v.

County of Los Angeles (2002) 27 Cal.4th 1112, 1128–1129.)

 

that this statute does not directly apply here, as the statutory definition of 

prisoner does not include an arrestee (§ 844 [“ ‘prisoner’ includes an inmate of 

a prison, jail, or penal or correctional facility”]), but see it as “indicative of the 

scope of the duty of care towards persons in custody.” 

Defendants assert that the CHP Manual, which provides that “officers 

shall arrange for a medical examination whenever a prisoner appears to be in 

need of or requests medical attention, regardless of outward symptoms of 

illness or injury,” does not create a duty because there is no evidence the CHP 

Manual was adopted pursuant to the state or federal Administrative Act. 

(Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th

895, 908; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 720; 

Evid. Code, § 669.1.) Plaintiffs do not suggest the CHP Manual creates a 

statutory duty; they properly rely upon it as bearing on the question of 

breach of duty. (Minch, at p. 908; Lugtu, at pp. 720–721.)
24

In Giraldo, supra, 168 Cal.App.4th 231, we held there is a special 

relationship between a jailer and prisoner. “It has been observed that a 

typical setting for the recognition of a special relationship is where ‘the 

plaintiff is particularly vulnerable and dependent upon the defendant who, 

correspondingly, has some control over the plaintiff’s welfare.’ (Kockelman v. 

Segal (1998) 61 Cal.App.4th 491, 499, citing Prosser & Keeton, Torts (5th 

ed.1984) § 56, p. 374.) Thus, and as our Supreme Court has noted, a special 

relationship has been found to exist between business proprietors such as 

shopping centers, restaurants, and bars, and their tenants, patrons, or 

invitees, and also between common carriers and passengers, innkeepers and 

their guests, and mental health professionals and their patients. (Delgado [v. 

Trax Bar & Grill (2005)] 36 Cal.4th [224,] 235–236.)” (Giraldo, at pp. 245–

246.) “[I]mportant factors in determining whether a relationship is ‘special’

include vulnerability and dependence. Prisoners are vulnerable. And 

dependent. Moreover, the relationship between them is protective by nature, 

such that the jailer has control over the prisoner, who is deprived of the 

normal opportunity to protect himself from harm inflicted by others. This, we 

conclude, is the epitome of a special relationship, imposing a duty of care on a 

jailer owed to a prisoner.” (Id. at pp. 250–251.)

The parties have not cited, and we are not aware of, any California 

cases discussing the special relationship concept in the context of an arrestee 

—an individual who has been taken into custody but not yet booked into a 

jail or other correctional facility. (See § 844.)9 The Ninth Circuit, however,

 

9 Under section 844, “a lawfully arrested person who is brought into a

law enforcement facility for the purpose of being booked, as described in

Section 7 of the Penal Code, becomes a prisoner, as a matter of law, upon his

or her initial entry into a prison, jail, or penal or correctional facility,

pursuant to penal processes.”
25

recently applied our reasoning in Giraldo to the arrest context, predicting 

that the California Supreme Court would conclude a “similar relationship 

exists between a law enforcement officer and an arrestee in his custody in 

need of immediate medical attention.” (Winger v. City of Garden Grove 

(9th Cir. Mar. 18, 2020) 806 Fed. Appx. 544.) Winger reversed a summary 

judgment in favor of the police department, finding there was a genuine 

factual dispute as to whether officers breached their duty of reasonable care 

to an arrestee by failing to take her to a hospital instead of jail, despite her 

refusal of medical care, where there was evidence from which a reasonable 

jury could have concluded the officers should have recognized the arrestee 

was displaying symptoms of a stroke, required immediate medical attention 

and was not capable of refusing medical care. (Id. at p. 546.) We agree that 

the same factors we discussed in Giraldo apply to the relationship between a 

law enforcement officer and arrestee: Once in custody, an arrestee is 

vulnerable, dependent, subject to the control of the officer and unable to 

attend to his or her own medical needs. Due to this special relationship, the 

officer owes a duty of reasonable care to the arrestee. 

In framing the question as whether the officers had a duty to take 

Cornejo to the hospital rather than to jail, defendants muddle the distinctions 

between the existence and scope of duty and breach of the standard of care. 

Once Cornejo was in custody, he was subject to the control of the officers and 

no longer in a position to attend to his own medical needs. At this point, 

regardless of Cornejo’s role in creating his predicament, the officers had a 

duty to use reasonable care in responding to the situation. Whether the 

officers should have recognized a need for immediate medical attention 

despite the absence of symptoms of drug use and Cornejo’s disclaimers and 

rejection of offers of medical assistance was a question of fact, as was the 
26

question whether the duty of care was satisfied by taking Cornejo to jail 

rather than the hospital.10 These were questions for the jury, not legal 

questions delineating the scope of the duty.

Defendants attempt to distinguish Giraldo, and argue no special 

relationship existed here, because Cornejo refused repeated offers of medical 

attention and did not appear to be in medical distress. Unlike the prisoner in 

Giraldo, who had no ability to protect herself from attacks by her cellmate 

that she had repeatedly reported to prison employees, defendants argue, 

Cornejo was not deprived of his “normal opportunities to obtain medical 

attention.” This argument ignores the obvious import of Cornejo being placed 

under arrest: He was dependent upon the officers for medical assistance. 

Moreover, according to the evidence at trial, he could not obtain such 

assistance without admitting his commission of the crime of possession of a 

controlled substance. Defendants’ focus on Cornejo’s constitutional right to 

 

10 Defendants contend that if they had any duty to Cornejo, it was 

satisfied by taking him to the jail, where medical personnel would be on site, 

and informing the intake deputy of the circumstances of the arrest. They 

acted reasonably, they maintain, by offering Cornejo medical attention, 

warning him there could be adverse consequences if he had swallowed drugs, 

offering him medical attention when he complained of pain after being taken 

to the ground and handcuffed. They point out that the officers called a 

supervisor to the scene, who also interviewed Cornejo and offered medical 

attention; that the supervisor directed Hazelwood to tell the intake officer at 

the jail that Cornejo had swallowed something he claimed to be gum, and 

Hazelwood did so; that the intake deputy noted Cornejo might have taken 

drugs but did not summon a nurse to the intake gate; that jail personnel had 

a statutory duty to provide medical care if they knew or had reason to know 

Cornejo was in need of immediate medical care; and that Cornejo was lucid 

and showed no signs of drug intoxication while in CHP custody.
27

reject medical treatment thus obscures his constitutional right against selfincrimination.11

Defendants’ other attempts to avoid liability also overlook the 

consequence of Cornejo’s custodial status. Defendants rely upon Hernandez 

v. City of San Jose (1993) 14 Cal.App.4th 129, 135, to argue officers do not 

enter a special relationship with an individual against whom they have taken 

law enforcement action. In that case, after being stopped for driving without 

a license and having the car in which they were driving impounded, 

teenagers arranged for a ride home and were injured in a car crash.

Hernandez held the officers had no duty to take charge of or make 

arrangements for the teenagers, and did not create a peril for them by 

 

11 Defendants point to Jauregui v. Superior Court (1986) 179 

Cal.App.3d 1160, in arguing that involuntary medical treatment of an 

arrestee violates the arrestee’s constitutional rights even where he or she 

may have ingested a large quantity of drugs. In that case, officers with a 

warrant to search an individual and his residence observed him swallow 

what they suspected to be balloons containing heroin. (Id. at pp. 1162–1163.) 

He was arrested for possession of narcotics paraphernalia found in his motel 

room and taken to a hospital where, after refusing medical treatment and 

nevertheless being subjected to X-rays that showed balloons in his stomach, 

he was confronted with a telephonic search warrant and told it authorized 

administration of an emetic to cause him to vomit. (Id. at p. 1163.) He drank 

the required solution and five balloons were recovered after he regurgitated. 

(Ibid.) Jauregui held suppression of the evidence was required because the 

search warrant in fact did not authorize the bodily intrusion to which the 

arrestee was subjected. (Id. at pp. 1164–1167.) 

The present case does not involve an involuntary bodily intrusion 

intended to recover evidence of a crime. According to the evidence at trial, if 

Cornejo had been taken to the hospital and declined treatment, he would 

have been held for observation unless and until sufficient time passed to be 

sure he was not in danger or he exhibited symptoms of toxicity such that he 

became unable to make informed medical decisions. The Jauregui court did 

not consider any question of the arresting officers’ civil tort liability.
28

impounding the car. The enforcement action in Hernandez, as here, was 

stopping a vehicle for a traffic violation; the difference is that the present 

case resulted in a custodial arrest. 

Defendants’ reliance upon Davidson v. City of Westminster (1982) 32 

Cal.3d 197, 201 (Davidson), for the proposition that officers do not increase 

the risk of harm by failing to act on their suspicion that an individual may be 

injured in the future is also unpersuasive. The officers in Davidson failed to 

warn or protect a woman they saw in a laundromat with a person suspected 

of previous stabbings. (Id. at p. 201.) They were held not liable for failing to 

prevent the attack that ensued because their knowledge of the danger did not 

give rise to a special relationship between the victim and the officers. (Id. at 

pp. 208–209.) The officers’ awareness of potential danger to a member of the 

public in Davidson is entirely different from arresting officers’ awareness 

that a person they have taken into custody may suffer harm from actions the 

officers observed the arrestee taking.

Nor is defendants’ case supported by Lehto v. City of Oxnard (1985) 171 

Cal.App.3d 285, 291, which held that officers who failed to prevent a drunk 

driver from continuing to drive were not liable to another driver subsequently 

injured in a collision with the drunk driver. Defendants note Lehto’s 

description of Davidson as holding that “a police officer does not act 

affirmatively to increase the risk of harm by failing to stop an individual from 

acting dangerously.” (Lehto, at p. 291, quoting Davidson, at pp. 208–209.) 

Plaintiffs are not seeking to impose liability for defendants’ failure to prevent 

Cornejo from taking dangerous action; their claims are based on the officers’ 

response in the face of dangerous action they suspected he had already taken. 

Lehto’s holding that there was no special relationship between the officers 

and the victim of an accident caused by a person the officers had previously 
29

stopped for a traffic violation says nothing about the relationship between a 

law enforcement officer and a person they have taken into custody.12

II.

Defendants contend the trial court erred in denying their motion for 

judgment notwithstanding the verdict because their failure to take Cornejo to 

the hospital was not a proximate cause of his death. “A motion for judgment 

notwithstanding the verdict may be granted only if it appears from the 

evidence, viewed in the light most favorable to the party securing the verdict, 

that there is no substantial evidence in support.” (Sweatman v. Department 

of Veterans Affairs (2001) 25 Cal.4th 62, 68.) On appeal, “[a]s in the trial 

court, the standard of review is whether any substantial evidence—

contradicted or uncontradicted—supports the jury’s conclusion.” (Ibid.) 

Proof of the causation element of negligence requires the plaintiff to 

establish that the defendant’s breach of duty was a substantial factor in 

bringing about the harm. (Leslie G. v. Perry & Associates (1996) 43 

Cal.App.4th 472, 481 (Leslie G.).) “ ‘The concept of proximate or legal cause 

has “defied precise definition.” [Citations.] . . . [¶] Whether a defendant’s 

conduct actually caused an injury is a question of fact [citation] that is 

ordinarily for the jury [citation]. . . . Our Supreme Court has . . . observed 

that the “substantial factor” test generally subsumes the “but for” test.

[Citation.] [¶] However the test is phrased, causation of fact is ultimately a 

matter of probability and common sense. . . .’ (Osborn v. Irwin Memorial 

Blood Bank (1992) 5 Cal.App.4th 234, 252–253.) ‘The substantial factor 

standard is a relatively broad one, requiring only that the contribution of the 

 

12 Having concluded defendants had a special relationship with Cornejo 

creating a duty of care, we need not address defendants’ argument that there 

was no duty under the Rowland factors. (Rowland, supra, 69 Cal.2d 108.)
30

individual cause be more than negligible or theoretical.’ (Rutherford v. 

Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978.) Even ‘a very minor force’

that causes harm is considered a cause in fact of the injury. (Bockrath v. 

Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) However, ‘ “a force which 

plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about [the] injury 

. . . is not a substantial factor” . . . .’ (Ibid.)” (Uriell v. Regents of University of 

California (2015) 234 Cal.App.4th 735, 744.)

Defendants argue there could be no reasonable inference of causation 

from the evidence presented at trial. They emphasize that where plaintiffs 

rely upon circumstantial evidence, they must prove the inferences favorable 

to their case are “more reasonable or probable than those against” them, not 

just that the favorable inferences are consistent with their theory of the case. 

(Leslie G., supra, 43 Cal.App.4th at p. 483.) “Although proof of causation may 

be by direct or circumstantial evidence, it must be by ‘substantial’ evidence, 

and evidence ‘which leaves the determination of these essential facts in the 

realm of mere speculation and conjecture is insufficient.’ ” (Id. at p. 484, 

quoting Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 471.)

Defendants argue that plaintiffs’ case depended on their assertion that 

Cornejo swallowed a plastic baggie, in order to support the inference that the

amount he swallowed was large enough to be lethal. Defendants argue the 

evidence was insufficient to prove the existence of such a baggie: The medical 

examiner did not find a plastic baggie or remnants of one at the autopsy, the 

officer who saw vomit on the floor of the holding cell testified that he thought 

it contained bologna but did not say he saw a plastic baggie, and all the 

officers at the scene of the arrest testified they did not see or hear reference 

to a plastic baggie. Defendants dismiss the significance of the two sentences 

in the declaration of probable cause describing Bruno and Hazelwood 
31

observing Cornejo put “what looked like a plastic baggie” in his mouth and 

Diehl instructing Cornejo to “spit out the bag” because of the officers’

testimony to the contrary and Bruno’s testimony that the statements he 

drafted were a mistake. In addition to the absence of evidence a baggie 

existed, defendants maintain, there was no basis in the evidence for a 

reasonable inference that Cornejo would have consented to medical 

treatment if the officers had taken him to the hospital, as he had rejected all 

offers of medical care from the officers.

Assuming for purposes of discussion that the existence of a baggie was 

critical to plaintiffs’ case, the probable cause declaration was evidence that 

officers saw Cornejo put a plastic baggie in his mouth. Although 

subsequently repudiated, the statements that Bruno and Hazelwood saw 

“what looked like a plastic baggie” and that Bruno heard Diehl instruct 

Cornejo to spit out “the bag” were unequivocal and made under penalty of 

perjury. The jury also heard deposition testimony in which Diehl seemed to 

acknowledge (albeit somewhat ambiguously) having seen a plastic baggie in 

Cornejo’s mouth.

13 There was a direct conflict between this evidence and the 

testimony of the officers at trial that none saw or heard reference to a plastic 

baggie. This conflict in the evidence was for the jury to resolve. Defendants

cannot simply assert that because the officers’ claimed the probable cause 

declaration was erroneous, it had to be rejected as evidence.

Contrary to defendants’ apparent assumption, plaintiffs’ case did not 

depend on an unsupported inference that if taken to the hospital Cornejo 

would have consented to treatment. Both medical experts testified that an 

 

13 Diehl was asked at his deposition, “In your mind’s eye, do you recall a 

plastic baggie being in Cornejo’s hand?” He responded, “Not in his hand. If I 

was giving descriptions, it is what I observed in his mouth.” 
32

arrestee brought to the hospital due to suspected ingestion of a controlled 

substance, in the absence of consent to treatment, would be held for 

observation. Both testified that if and when the arrestee became too 

impaired to make informed decisions about medical treatment, procedures 

could be instituted to permit medical personnel to provide treatment. 

Defendants maintain that plaintiffs’ expert wrongly assumed Cornejo’s 

consent would not be needed for treatment “once signs of drug toxicity have 

developed,” but Dr. Cetaruk’s testimony in fact tied the “signs and symptoms” 

to the person being “greatly disabled and not able to make an adequate 

decision because now they’re intoxicated on the methamphetamine or 

whatever else they may have ingested.” He explained that while a lucid 

person could decline treatment and “sign out against medical advice,” “in the 

case of drug or alcohol impairment, the impairment of either the drug or the 

alcohol has precluded them from making an informed decision about their 

care.” The situation he described was consistent with the testimony of 

defendants’ expert, although in California two physicians must agree that a 

patient is incapable of understanding the situation and making informed 

decisions, whereas in Colorado the determination can be made by a single 

physician. Plaintiffs’ theory of the case was that if Cornejo had been taken to 

the hospital, even if he did not consent to treatment, he would have been held 

for observation and, as symptoms of toxicity developed, treatment could have 

been provided.

Defendants argue that there is no substantial evidence Cornejo’s 

probability of survival would have exceeded 50 percent at the point he either 

consented to treatment or became too incapacitated to refuse treatment. The 

argument is based on Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504–

1505 (Bromme), which held that “California does not recognize a cause of 
33

action for wrongful death based on medical negligence where the decedent 

did not have a greater than 50 percent chance of survival had the defendant 

properly diagnosed and treated the condition.” 

In Bromme, there was evidence that the defendant doctor should have 

diagnosed his patient’s colon cancer in June 1980, and at various points 

thereafter, but the correct diagnosis was not made until January 1982. 

(Bromme, supra, 5 Cal.App.4th at p. 1494.) Medical testimony established 

that after June 1981, the patient’s chance of survival dropped from 70 to 75 

percent down to 40 percent or less. (Id. at p. 1495.) The trial court granted a 

defense motion for nonsuit as to claims of negligence after June 1981 because 

after that point it was more probable the patient died due to the cancer than 

due to anything the doctor failed to do. (Id. at p. 1496.) Affirming, Bromme 

explained that in order to prove the patient’s death was “ ‘caused by’ ” the 

defendant’s negligence, as required by the wrongful death statute (Code Civ. 

Proc., § 377.60), the plaintiff “had to establish a ‘reasonable medical 

probability’ that the negligence was sufficient of itself to bring about the 

death, i.e., the death was ‘more likely than not’ the result of the negligence. 

(Bromme, at pp. 1498–1499.) Since after June 1981, it was more likely than 

not the patient would die from the cancer even if she received proper medical 

care, the absence of proper care after June 1981 was “not of itself sufficient to 

bring about her death” and therefore not a substantial factor or cause in fact 

of the death. (Id. at pp. 1498–1499.)

Defendants recognize that Dr. Cetaruk, plaintiffs’ expert, testified it 

was more likely than not Cornejo would be alive if the officers had taken him 

to the hospital rather than to jail, but argue his opinion does not constitute 

substantial evidence of causation because he wrongly assumed Cornejo’s 

consent would not be needed for treatment once signs of drug toxicity 
34

developed. As just discussed, defendants’ characterization is not accurate: 

Dr. Cetaruk testified that a physician could override a patient’s refusal of 

treatment at the point the patient’s drug intoxication rendered the patient 

incapable of making informed decisions about medical care. Dr. Cetaruk 

recognized that arrestees in Cornejo’s situation often will not cooperate with 

treatment and therefore must be observed for 6 to 24 hours, until it becomes 

safe to release them or they become sufficiently impaired for doctors to treat 

them without their consent. Unlike observation at a jail without full medical 

facilities, observation at a hospital can result in immediate treatment at the 

point an arrestee either consents or is found incapable of medical decisionmaking.

14 Dr. Cetaruk’s opinion was based on his own experience with 

patients who had ingested controlled substances and review of material 

including the Oregon study of individuals who had ingested 

methamphetamine opportunistically. His opinion was substantial evidence 

of causation.

III.

One of plaintiffs’ motions in limine sought to exclude evidence and 

argument on comparative fault on the ground that tortfeasors take plaintiffs 

as they find them, and Cornejo’s conduct was not relevant to the question 

whether defendants negligently caused additional harm by failing to take 

him to the hospital. The trial court granted the motion as to Cornejo’s 

ingestion of methamphetamine and denied it as to his post-ingestion 

statements and conduct. 

 

14 Dr. Cetaruk testified that an arrestee suspected of having swallowed 

a controlled substance could be observed at a jail rather than a hospital “[i]f 

there’s a medical facility in jail that was capable of properly observing them.” 

Testimony at trial indicated that while nurses are on staff at Glenn E. Dyer 

Detention Facility, physicians are not. 
35

Defendants argue there was no legal reason to exclude Cornejo’s 

intentional ingestion of methamphetamine as a cause of his death because 

that conduct was the beginning of the chain of events leading to the death 

and “[u]nder the comparative-negligence dispensation every party remains 

liable for his proportionate share of fault, whether his conduct is described as 

negligence or as willful misconduct.” (Southern Pac. Transportation Co. v. 

State of California (1981) 115 Cal.App.3d 116, 121.)

In Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606 (Harb), the 

plaintiff suffered a stroke while driving and drove his car onto a sidewalk. 

First responders did not immediately provide medical care because they 

mistook the plaintiff’s symptoms for signs of intoxication and by the time he 

was taken to the hospital, he had suffered brain damage that left him unable 

to care for himself. (Id. at p. 609.) In a lawsuit alleging the first responders’ 

delay exacerbated the consequences of the stroke, the defendants argued that 

the plaintiff was contributorily negligent for failing to take prescribed blood 

pressure medication that would have reduced the risk of the type of stroke he 

suffered. (Id. at pp. 615, 626.) Finding no California law on point, the Harb 

court framed its decision around the fact that California has “adopted the 

familiar principle of tort law that a ‘tortfeasor takes the plaintiff as he finds 

him.’ ” Drawing an analogy to “the position of health care professionals who 

treat patients for injuries or conditions that were caused by the patient’s 

negligence” (id. at pp. 625–626, quoting Bowen v. Board of Retirement (1986) 

42 Cal.3d 572, 580), Harb surveyed caselaw and concluded that courts in 

other jurisdictions “generally agree that a patient’s conduct prior to seeking 

medical attention should not be considered in assessing damages.” (Harb, at 

p. 626.) “In contrast, most courts have held that the concept of contributory 

negligence can be applied to a patient’s conduct that is concurrent or 
36

contemporaneous with the physician’s negligence.” (Ibid.) Harb noted that

California cases were consistent with the latter point. (Id. at p. 626, fn. 11.) 

As explained in one of the cases discussed in the Harb opinion—a

wrongful death suit against physicians who treated the plaintiffs’ daughter

for a drug overdose—“ ‘the focus in a medical malpractice case is on the

injury caused by the negligent treatment, not the original injury that created

the need for treatment.’ ” (Harb, supra, 233 Cal.App.4th at p. 627, quoting

Son v. Ashland Community Healthcare Services (Or.App. 2010) 244 P.3d 835,

843.) “A patient who negligently injures himself is nevertheless entitled to

subsequent nonnegligent medical treatment.” (Son, at p. 843.) The present

case is analogous: Plaintiffs sought to hold defendants liable for negligence

in their response to Cornejo’s ingestion of methamphetamine. His negligence

in swallowing the drug was not relevant to the officers’ response; his postingestion negligence was relevant. The trial court properly excluded evidence

of the former and permitted the jury to consider evidence of the latter.

IV.

Finally, defendants contend the trial court erred in allowing plaintiffs

to present their theory that the officers attempted to coerce a confession from

Cornejo by conditioning medical treatment on his admitting he swallowed a

controlled substance. Defendants argue any subjective intention to secure

Cornejo’s confession to possession of a controlled substance was irrelevant

because negligence is based on an objective standard, and permitting

evidence and argument on the coercion theory allowed plaintiffs to argue

their previously barred Bane Act claim in the guise of negligence. 

Plaintiffs’ complaint had alleged a cause of action under the Bane Act, 

which provides for civil actions against those who interfere or attempt to

interfere “by threat, intimidation, or coercion, with the exercise or enjoyment
37

by any individual or individuals of rights secured by” the Constitution or laws

of the United States or the State of California. (Civ. Code, § 52.1, subd. (b).) 

Earlier in the litigation, the trial court had sustained defendants’ demurrer 

to this cause of action, ruling that plaintiffs “failed to allege any threat, 

intimidation, or coercion beyond decedent’s detention itself.” In the same 

ruling, the court prohibited plaintiffs from basing their negligence claim on “a 

purported violation of Civil Code [section] 52.1.” 

Based on the ruling sustaining the demurrer, defendants moved in 

limine to exclude evidence or argument that the officers attempted to coerce 

Cornejo’s confession to drug possession. The trial court denied this motion, 

rejecting the argument that plaintiffs’ coercion theory amounted to the 

previously barred Bane Act claim.15 In the court’s view, plaintiffs were 

claiming that attempting to coerce a confession by making it a condition of 

medical care was a violation of the officers’ duty not to increase risk to a 

detained person.16

 

15 Opposing the motion in limine, plaintiffs’ counsel argued the jury 

needed to hear the facts surrounding the stop, including “whether medical 

treatment was offered, with or without a condition that Cornejo incriminate 

himself,” but offered to stipulate that plaintiffs would not pursue a civil 

rights claim. Defendants’ counsel urged plaintiffs’ argument was just a 

different framing of the civil rights violation argument that had been rejected 

by the federal court and found lacking in the trial court’s ruling on the 

demurrer to the Bane Act claim—that Cornejo’s civil rights were violated by 

“deliberate indifference to serious medical needs.” Defendants’ counsel 

acknowledged officers have a duty not to do anything to increase the risk of 

harm or death to a person in custody and the standard at issue in a Bane Act 

claim is much higher than that in a negligence claim, but argued the coercion 

argument was based on the officers’ subjective motivation, which is not 

relevant to a negligence claim. 

16 After plaintiffs’ evidence was presented, they sought to amend the 

complaint to conform to proof by adding the Bane Act claim back in, based on 

the officers’ testimony that everyone has a right not to self-incriminate and 
38

We review the trial court’s ruling on admissibility of evidence for abuse 

of discretion, which is shown only where the ruling “ ‘exceeded the bounds of 

reason, all of the circumstances being considered.’ ” (People ex rel. Lockyer v. 

Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640, quoting People v. 

DeJesus (1995) 38 Cal.App.4th 1, 32.) 

Emphasizing that the defendant’s conduct in a negligence case is 

measured by the objective standard of a reasonable person (Ford v. Gouin 

(1992) 3 Cal.4th 339, 356), defendants maintain that the trial court 

erroneously rejected their argument that an officer’s subjective intent is 

irrelevant in a negligence claim. It did not. The trial court agreed that the 

relevant issue was the officers’ actions, not their “state of mind.” “The 

general standard of care is ‘that of a reasonably prudent person under like 

circumstances.’ ” (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255, 

quoting Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.) Here, the 

circumstances described by the officers included their observations of Cornejo 

swallowing what they believed to be a controlled substance, their repeated 

admonitions that Cornejo needed medical attention if he swallowed a 

controlled substance and demands that Cornejo identify the substance, and 

Cornejo’s repeated assertions that he swallowed gum and did not need 

medical attention. To properly evaluate the officers’ conduct—as well as 

Cornejo’s, for apportionment of comparative fault—it was relevant for the 

jury to understand that Cornejo had an incentive to lie about what he 

ingested and decline medical care in order to avoid admitting the crime of 

 

that medical assistance was offered to Cornejo contingent on his admitting he 

swallowed methamphetamine. This request was initially presented as a 

motion for reconsideration of the ruling on the demurrer and denied by the 

judge who had ruled on the demurrer, who indicated the issue should be 

raised as a trial motion. The trial judge denied the motion to amend. 
39

possession of a controlled substance, and to assess whether and how a 

reasonable officer would have taken this into account in responding to the 

situation. We find no abuse of discretion.

DISPOSITION

The judgment is affirmed. Costs are awarded to plaintiffs.
40

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Frausto et al. v. California Highway Patrol et al. (A156552)
41

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Evelio M. Grillo

Attorneys for Plaintiffs and Bracamontes & Vlasak

Respondents Michael R. Bracamontes

Ryan J. Vlasak

Attorneys for Defendants and Attorney General of California

Appellants: Xavier Becerra

Danielle F. O’Bannon

Senior Assistant Attorney General

Jeffrey R. Vincent

Supervising Deputy Attorney General

Amy W. Lo

Deputy Attorney General