ALBERT LINGENFELTER v. LEE BACA (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiffs Albert Lingenfelter and Robbin Ellis Lingenfelter appeal from a judgment of dismissal with prejudice of their action alleging, inter alia, the wrongful death of Thomas Lingenfelter against defendants Lee Baca, Los Angeles County Sheriff;  the County of Los Angeles;  and Jay Selznick.¹  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Albert Lingenfelter (Albert) ² was the father of an adult son, Thomas Lingenfelter (Thomas).   Plaintiff Robbin Ellis Lingenfelter (Robbin) was Thomas's wife.

On November 8, 2006, Thomas was held in custody by defendant Lee Baca, Los Angeles County Sheriff (Baca), in the mental ward of the Twin Towers correctional facility operated and maintained by the County of Los Angeles (County).³  Thomas was 51 years old and had been incarcerated for a probation violation.   Although he had a criminal record, his offenses primarily were for drug use, and he did not have a history of violence.   A 27-year-old inmate with a known history of violence and psychotic behavior, defendant Jay Selznick (Selznick), was put into the cell with Thomas.   Selznick beat Thomas to death in the cell.

Later in November 2006, Albert learned of Thomas's murder.   In March 2007, Albert filed a claim with the County and the Sheriff's Department for tort damages within the six-month filing period required pursuant to Government Code section 911.2.   The County denied the claim.   On October 12, 2007, Albert filed the original complaint in this action, naming himself as the only plaintiff.   The County Defendants and Selznick were the named defendants.

Robbin had lost track of Thomas primarily due to his mental illness.   In late 2007, she learned of his death from an Internet article given to her by her daughter.   After contacting Albert, Robbin filed a claim with the County in January 2008 pursuant to Government Code section 911.2.   Because her claim was not made within the required six-month period, Robbin made application for leave to present a late claim.

Plaintiffs then filed the first amended complaint on February 6, 2008, adding Robbin as a named plaintiff.   It is the operative complaint.

In their preliminary allegations, plaintiffs alleged that the “County Defendants ․ breached their duties to [Thomas] by violating statutory as well as common law obligations, including but not limited to Gov[ernment] Code Sections 815.6;  820;  830;  835;  835.2;  840.2;  840.4;  844.6;  845.6[;] Civil Code [section] 1714;  California Code of Regulations Title 15 Sections 1050[,] 1052, et seq.”   Plaintiffs alleged seven causes of action against the County Defendants and Selznick.

The first cause of action, wrongful death, alleged that Thomas's wrongful death was caused by “defendants' lack of care and breach of duty to provide [a] non-dangerous detention facility in violation of the above-referenced code sections.”

The second cause of action, denominated a survival action, alleged that the County Defendants “supervised, and operated the subject detention facility, so as to allow dangerous condition[s] within the premises,” thereby breaching their duties owed to Thomas, all in “willful, reckless, and conscious disregard of [his] safety[ ] and the probability that severe injury and/or death could result to him․”

The third cause of action was for violation of the Unruh Civil Rights Act (Civ.Code, § 51 et seq.), Title 42 United States Code section 1983, and the Americans with Disabilities Act (42 U.S.C § 12101 et seq.).   Plaintiffs alleged the County Defendants discriminated against Thomas on the basis of his mental disability, denied him the benefit of public services and programs on the same basis, and violated his civil rights.

The fourth cause of action was for a tort per se arising from violations of the Eighth Amendment to the United States Constitution;  article I, section 17 of the California Constitution;  and Penal Code sections 673 and 2652.   It alleged that defendants violated Thomas's “right to be free from cruel and unusual punishment” by placing Thomas “in a small jail cell with [a] violent and psychotic inmate, allow[ing] the brutal torture to be inflicted upon [him].”

The fifth cause of action, negligence, alleged that the County Defendants negligently hired, trained and supervised their guards and other employees and failed to implement necessary safety precautions.

The sixth cause of action, intentional infliction of emotional distress, and the seventh cause of action, negligent infliction of emotional distress, allegations were consistent with the allegations for the fifth cause of action.   Each of the seven causes of action was based on allegations of willful, wanton, and malicious conduct justifying the award of exemplary damages.

The County Defendants filed a motion for judgment on the pleadings.   Selznick made no appearance in the lawsuit.   After hearing argument on the motion on October 9, 2008, the trial court adopted its tentative decision as its written decision.   The court granted the motion with 30 days leave to amend.   At the hearing, the court stated that the leave to amend did not apply, however, to the named defendants with respect to the theories pled in the operative first amended complaint.

On November 5, the trial court held a hearing on Robbin's petition for an order relieving her of complying with the claim procedure as required by Government Code section 945.4 to qualify for bringing suit against the County Defendants.   The court conducted an in-chambers meeting with counsel.   Afterward, the trial court went back on the record.   The court stated that it was amending its October 9, 2008 ruling on the County Defendants' motion for judgment on the pleadings to provide that plaintiffs' operative complaint was dismissed without leave to amend.   The court denied Robbin's petition for relief from the claim filing requirement as moot.   The court ordered that plaintiffs could attempt to revive their complaint, but only via a motion pursuant to Code of Civil Procedure section 473, subdivision (b).  Plaintiffs' counsel said that “[s]ounds good.”   On December 4, 2008, the trial court entered a judgment of dismissal with prejudice.

DISCUSSION

Plaintiffs contend that, contrary to the trial court's ruling, governmental immunities do not bar liability of the County Defendants.   Plaintiffs raise various contentions of error in the trial court's rulings on causes of action alleging violations of particular statutes.   Plaintiffs claim that the court's ultimate denial of leave to amend constituted error requiring reversal of the judgment.   We disagree with plaintiffs' contentions and affirm the judgment.

A. Standard of Review

Pursuant to Code of Civil Procedure section 438, where a defendant moves for judgment on the pleadings, the motion may be granted if the court has no jurisdiction of the subject of a cause of action or the complaint fails to state facts sufficient to constitute a cause of action.  (Id., subd. (c)(1)(B).)  We subject a trial court's grant of judgment on the pleadings against a plaintiff to independent review.  (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.)   We determine de novo whether the factual allegations in the complaint and matters properly judicially noticed are sufficient to constitute a cause of action under any legal theory.   (Ibid.;  Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064-1065.)   We accept the factual allegations as true and give them a liberal construction.  (Gerawan Farming, Inc., supra, at pp. 515-516.)   Where, as here, the trial court granted the motion and issued judgment without leave to amend, we review the court's denial of leave to amend for abuse of discretion.  (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

B. Absence of Liability of the County Defendants Under the Complaint

The gravamen of plaintiffs' complaint was that the County Defendants were liable for the actions of a prisoner, Selznick, who fatally injured another prisoner, Thomas.   There are, however, statutory immunities protecting the County Defendants from liability specifically for prisoner injuries.   Government Code section 844.6 establishes immunity for a public entity from liability for an injury caused by a prisoner as well as injury to a prisoner (id., subd. (a)) and injury to a prisoner that results from a dangerous condition of public property (id., subd. (c)).⁴  In addition, Government Code section 845.2 grants a public entity and a public employee immunity for failure to provide adequate jail personnel or facilities.⁵

In addition, broader-scope statutory immunities apply to the County Defendants.  Government Code section 820.8 establishes that “a public employee is not liable for an injury caused by the act or omission of another person.” ⁶  Section 815.2, subdivision (b),⁷ extends the public employee's immunity to his or her public entity employer.

Plaintiffs claim that Government Code section 820.8 also states that “[n]othing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission,” and the County Defendants fit into the latter category.   We disagree.   There is no evidence that Baca had any personal involvement with the incarceration or placement of Thomas or Selznick.   Baca's own acts did not cause the injury to Thomas;  it is undisputed that the acts of Selznick were the cause.   Therefore, Government Code section 820.8 insulates Baca from liability, and Government Code section 815.2, subdivision (b), extends that shield from liability to the County.  (See, e.g., Weaver v. State of California (1998) 63 Cal.App.4th 188, 202 [CHP Commissioner not personally involved with the alleged injurious acts was immune from liability].)

Government Code section 820.2 provides immunity to a public employee for an injury resulting from the exercise of discretion vested in the employee.⁸  The activities immunized as “discretionary” acts are “basic policymaking or ‘planning’ ” activities.  (Perez-Torres v. State of California (2007) 42 Cal.4th 136, 142, citing Johnson v. State of California (1968) 69 Cal.2d 782, 793-796.)   The immunity does not apply to “ministerial” acts, that is, “ ‘operational’ levels of decisionmaking.”  (Perez-Torres, supra, at p. 142.)

Plaintiffs are mistaken in concluding that, under these principles, the County Defendants do not qualify for immunity provided in Government Code section 820.2.   According to plaintiffs, the County Defendants' actions relevant to placement of Thomas with Selznick were limited to making policies with respect to placement of prisoners based upon the need to reduce overcrowding in jails and for financial reasons.   Plaintiffs assert that “this policy was applied mechanically on a wholesale basis, with no exercise of discretion, by placing Thomas ․ with Selznick․”  (Italics added.)   Under the distinction between “discretionary” and “ministerial” acts in Perez-Torres v. State of California, supra, 42 Cal.4th 136, the supporting authority cited by plaintiffs, the County Defendants' alleged policymaking was a “discretionary” activity and, therefore, immunity applies pursuant to Government Code section 820.2.  (Id. at p. 142.)   In any event, having concluded the County Defendants are immune from liability under Government Code section 844.6, granting specific immunity for injuries to prisoners, “it is unnecessary to consider the issue whether the ‘general discretionary act immunity’ applies.   [Citation.]”  (O'Toole v. Superior Court (2006) 140 Cal.App.4th 488, 509.)

Plaintiffs' allegations are without merit that, regardless of the foregoing governmental immunities, the County Defendants are liable because they have violated various state statutes and regulations.   Under California law, “ ‘[i]t is generally recognized that a statutory governmental immunity overrides a statute imposing liability.’  [Citations.]  Thus, absent ‘a clear indication of legislative intent that statutory immunity is withheld or withdrawn,’ a specific statutory immunity applies to shield a public employee from liability imposed by a particular statute.  [Citations.]”  (O'Toole v. Superior Court, supra, 140 Cal.App.4th at p. 504.)   Plaintiffs do not identify any such legislative intent with respect to any of the relevant statutes.

On appeal, plaintiffs contend they stated a cause of action against the County Defendants pursuant to Government Code section 815.6 ⁹ for breach of their mandatory duties to protect prisoners by implementing placement mechanisms for jails as set forth in Title 15 of the California Code of Regulations, sections 1050, 1052 and 1053.   No such cause was before the trial court, however, in that plaintiffs did not properly plead such a cause of action.¹⁰  In any event, no exception for liability under Government Code section 815.6 is included in the express exceptions set forth in Government Code sections 844.6 and 845.2 to the specific immunities against liability for prisoner injuries.   Also, the cited regulations require and provide directions for establishing policies and procedures for placement of prisoners,¹¹ a function which involves the exercise of discretion by a public entity or public officer.  (See, e.g., Perez-Torres v. State of California, supra, 42 Cal.4th at p. 142.)   They do not create a mandatory duty to perform a particular action, as required for liability under Government Code section 815.6.  (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498.)

Likewise, for each additional cause based upon a statutory violation, there is at least one other basis for determining the County Defendants have no liability.   As to liability for violation of the Unruh Civil Rights Act (Civ.Code, § 51 et seq.),¹² the County Defendants are not within the category of parties who can be held liable under the Act. The Unruh Civil Rights Act expressly applies only to “business establishments” (Civ.Code, § 51, subd. (b)), not public entities or officials.

No liability attaches to the County Defendants pursuant to violations of civil rights granted under Title 42 United States Code section 1983 (section 1983).  Section 1983 expressly applies only to “person[s].” ¹³  It is undisputed that Baca has final policymaking authority in operating the jail.   Under California law, for purposes of liability based upon such authority, a county sheriff, such as Baca, is a state officer.  (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 828-830;  Bougere v. County of Los Angeles (2006) 141 Cal.App.4th 237, 241-242.)  “It is well established that states and state officers sued in their official capacity are not considered ‘persons' for purposes of section 1983 and are immune from liability under that statute by virtue of the Eleventh Amendment to the United States Constitution and the doctrine of sovereign immunity.  [Citation.]”  (Bougere, supra, at p. 242.) ¹⁴  Accordingly, the County Defendants are not liable for violation of civil rights under section 1983.

Plaintiffs' cause of action for violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.)  (ADA) also fails.   The ADA states, in pertinent part:  “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  (Id. at § 12132.)   Plaintiffs cite the United State Supreme Court's opinion in Pennsylvania Dept. of Corrections v. Yeskey (1998) 524 U.S. 206 [118 S.Ct. 1952, 141 L.Ed.2d 215] that state prisons provide prisoners with many types of “activities,” “services,” and “programs” from which disabled prisoners could be discriminatorily excluded from participation.  (Id. at p. 210.)   In their complaint, however, plaintiffs identify no discriminatory action whereby, as a result of his disability, Thomas was treated differently from any other prisoner by being excluded from participation in or denied benefits of any particular “services, programs, or activities” for prisoners in the jail, as required for liability under the ADA. (42 U.S.C. § 12132;  Duffy v. Riveland (9th Cir.1996) 98 F.3d 447, 455.) ¹⁵

Plaintiffs have alleged a cause of action which they entitled a tort per se.¹⁶  They allege the County Defendants are liable for violations of prohibitions against cruel and unusual punishment under the Eighth Amendment of the United States Constitution, article I, section 17 of the California Constitution or Penal Code sections 673 and 2652.   To state a civil cause of action under a constitutional provision, “there must exist a state tort law mechanism in order to bring a private cause of action to vindicate the public policy” underlying the provision.  (Himaka v. Buddhist Churches of America (N.D.Cal.1995) 919 F.Supp. 332, 335.)   The federal and state constitutional provisions, however, do not give rise to liability in that they are not self-executing, having no tort enforcement provisions.  (Himaka, supra, at pp. 334-335;  accord, Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1472-1474;  Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1455.)  Article I, section 17 of the California Constitution has been held not “to confer a private right of action for damages for a violation of the prohibition against the infliction of cruel or usual punishment.”   (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 255.)  Penal Code sections 673 and 2652 establish criminal offenses for corporal punishment and cruel and unusual punishment.   They do not include any provisions for a remedy by civil action for a person's injuries allegedly arising from such punishment.   Therefore, the County Defendants cannot be held liable based upon the statutes.  (See Clinkscales v. Carver, supra, 22 Cal.2d at p. 75 [“A statute that provides for a criminal proceeding only does not create a civil liability․”].)

For the foregoing reasons, we conclude that, as a matter of law, the County Defendants are not liable under any of plaintiffs' causes of action.   Accordingly, we decline to address the issues raised regarding standing to bring the survival action (Code Civ. Proc., § 377.30) and Robbin's compliance with the Government Tort Claims Act.

C. Leave To Amend

Plaintiffs contend that judgment should be reversed, in that the trial court initially granted 30 days leave to amend, but, prior to the amendment deadline, the court, sua sponte and without notice, amended its order to specify that leave to amend was denied.   A trial court has discretion to grant a motion for judgment on the pleadings with or without leave to file an amended complaint.   (Code Civ. Proc., § 438, subd. (h)(1).)   It is an abuse of discretion to deny leave to amend if the plaintiff shows there is a reasonable possibility that the identified defect can be cured by amending the complaint.  (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989;  see also Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)   Under such circumstances, denial of leave to amend is reversible error.  (Pang, supra, at p. 989.)   However, “[i]f there is no liability as a matter of law, leave to amend should not be granted.”  (Baughman v. State of California (1995) 38 Cal.App.4th 182, 187.)

As in the trial court proceedings, on appeal plaintiffs had the burden of demonstrating how the complaint could be amended to cure the identified defects.  (Pang v. Beverly Hospital, Inc., supra, 79 Cal.App.4th at p. 989.)   Plaintiffs have not met that burden.   Their arguments and contentions on appeal are based upon the same defendants and the same theories of liability included in the complaint.   There being no liability on the part of the County Defendants as a matter of law, the trial court did not abuse its discretion in denying leave to amend.  (Baughman v. State of California, supra, 38 Cal.App.4th at p. 187.)

Lastly, we note that, contrary to plaintiffs' assertion, the trial court's action in November to amend its October order to deny leave to amend did not deprive them of their right to a full 30-day amendment period with respect to the County Defendants.   After granting the motion for judgment on the pleadings at the October hearing, the trial court granted leave to amend, but specifically stated that such leave did not apply with respect to the named County Defendants under the theories already pleaded.¹⁷

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Jay Selznick is not a party to this appeal.   He never made an appearance in the lawsuit..  FN1. Jay Selznick is not a party to this appeal.   He never made an appearance in the lawsuit.

FN2. Because three individuals share the Lingenfelter surname, for clarity only and intending no disrespect, we will refer to each of them by his or her first name..  FN2. Because three individuals share the Lingenfelter surname, for clarity only and intending no disrespect, we will refer to each of them by his or her first name.

FN3. We will refer collectively to Baca and County as “the County Defendants.”.  FN3. We will refer collectively to Baca and County as “the County Defendants.”

FN4. Government Code section 844.6 provides:  “(a) Notwithstanding any other provision of this part, except as provided in [specified sections of the Government Code and the Penal Code], a public entity is not liable for:  [¶] (1) An injury proximately caused by any prisoner.  [¶] (2) An injury to any prisoner. [¶] ․ [¶] (c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under [section 830 et seq.]. [¶] (d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission․”.  FN4. Government Code section 844.6 provides:  “(a) Notwithstanding any other provision of this part, except as provided in [specified sections of the Government Code and the Penal Code], a public entity is not liable for:  [¶] (1) An injury proximately caused by any prisoner.  [¶] (2) An injury to any prisoner. [¶] ․ [¶] (c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under [section 830 et seq.]. [¶] (d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission․”

FN5. Government Code section 845.2 provides:  “Except as provided in [section 830 et seq.], neither a public entity nor a public employee is liable for failure to provide a prison, jail or penal or correctional facility or, if such facility is provided, for failure to provide sufficient equipment, personnel or facilities therein.”.  FN5. Government Code section 845.2 provides:  “Except as provided in [section 830 et seq.], neither a public entity nor a public employee is liable for failure to provide a prison, jail or penal or correctional facility or, if such facility is provided, for failure to provide sufficient equipment, personnel or facilities therein.”

FN6. Government Code section 820.8 provides:  “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person.   Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.”.  FN6. Government Code section 820.8 provides:  “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person.   Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.”

FN7. Government Code section 815.2, subdivision (b), provides that “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”.  FN7. Government Code section 815.2, subdivision (b), provides that “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

FN8. Government Code section 820.2 states:  “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”.  FN8. Government Code section 820.2 states:  “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

FN9. Government Code section 815.6 provides:  “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”.  FN9. Government Code section 815.6 provides:  “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

FN10. In their “Preliminary Allegations” only, plaintiffs alleged, without any corresponding factual allegations, that the County Defendants breached their duties to Thomas “by violating Statutory as well as common law obligations, including but not limited to Gov[ernment] Code Sections 815.6;  820;  ․ California Code of Regulations Title 15 Sections 1050[,] 1052, et seq.”.  FN10. In their “Preliminary Allegations” only, plaintiffs alleged, without any corresponding factual allegations, that the County Defendants breached their duties to Thomas “by violating Statutory as well as common law obligations, including but not limited to Gov[ernment] Code Sections 815.6;  820;  ․ California Code of Regulations Title 15 Sections 1050[,] 1052, et seq.”

FN11. Pursuant to Title 15 of the California Code of Regulations, a correctional facility administrator is required to establish a written classification plan for assignment of inmates to housing for safety purposes (§ 1050);  policies and procedures for identification, evaluation and, as the administrator deems necessary for safety purposes, segregation of mentally disordered inmates (§ 1052);  and policies and procedures for segregation of inmates prone to specified behaviors as “necessary in order to obtain the objective of protecting the welfare of inmates and staff” (§ 1053)..  FN11. Pursuant to Title 15 of the California Code of Regulations, a correctional facility administrator is required to establish a written classification plan for assignment of inmates to housing for safety purposes (§ 1050);  policies and procedures for identification, evaluation and, as the administrator deems necessary for safety purposes, segregation of mentally disordered inmates (§ 1052);  and policies and procedures for segregation of inmates prone to specified behaviors as “necessary in order to obtain the objective of protecting the welfare of inmates and staff” (§ 1053).

FN12. Civil Code section 51 provides in part:  “(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”  (Italics added.).  FN12. Civil Code section 51 provides in part:  “(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”  (Italics added.)

FN13. Section 1983 provides:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured․”.  FN13. Section 1983 provides:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured․”

FN14. Plaintiffs continue their mistaken argument from trial court that Baca qualifies as a “person” for the purposes of section 1983 liability.   As the California Supreme Court explained, however, “ ‘[o]bviously, state officials literally are persons.   But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.  [Citation.]  As such, it is no different from a suit against the State itself.   [Citations.]’  [Citation.]”  (Venegas v. County of Los Angeles, supra, 32 Cal.4th at p. 829.).  FN14. Plaintiffs continue their mistaken argument from trial court that Baca qualifies as a “person” for the purposes of section 1983 liability.   As the California Supreme Court explained, however, “ ‘[o]bviously, state officials literally are persons.   But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.  [Citation.]  As such, it is no different from a suit against the State itself.   [Citations.]’  [Citation.]”  (Venegas v. County of Los Angeles, supra, 32 Cal.4th at p. 829.)

FN15. Rather than alleging discrimination, plaintiffs' factual allegations for ADA liability were substantively similar to the acts plaintiffs alleged as the basis for their tort causes of action.   The actions alleged as discrimination under the ADA included “failure to provide secure, non-dangerous, proper and reasonable jail housing as well as training to [jail] personnel ․ and [ ] their failure to respond reasonably in dealing with a mentally disordered person.”.  FN15. Rather than alleging discrimination, plaintiffs' factual allegations for ADA liability were substantively similar to the acts plaintiffs alleged as the basis for their tort causes of action.   The actions alleged as discrimination under the ADA included “failure to provide secure, non-dangerous, proper and reasonable jail housing as well as training to [jail] personnel ․ and [ ] their failure to respond reasonably in dealing with a mentally disordered person.”

FN16. We acknowledge that, where a statute establishes a standard of conduct, a presumption of negligence arises.  (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547.)   A standard adopted by the Legislature in a criminal statute does not per se constitute a standard for determining civil liability.  (Id., citing Clinkscales v. Carver (1943) 22 Cal.2d 72, 75.).  FN16. We acknowledge that, where a statute establishes a standard of conduct, a presumption of negligence arises.  (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547.)   A standard adopted by the Legislature in a criminal statute does not per se constitute a standard for determining civil liability.  (Id., citing Clinkscales v. Carver (1943) 22 Cal.2d 72, 75.)

FN17. At the hearing on October 9, 2008, the trial judge stated:  “That's why I'm giving you leave to amend, but it isn't for these defendants-do you understand what I'm trying to say-at least under these theories?”.  FN17. At the hearing on October 9, 2008, the trial judge stated:  “That's why I'm giving you leave to amend, but it isn't for these defendants-do you understand what I'm trying to say-at least under these theories?”

PERLUSS, P. J. ZELON, J.