CRAWFORD v. REGENTS OF UNIVERSITY OF CALIFORNIA (1992)

Rosalie Crawford appeals a judgment notwithstanding the verdict in favor of the Regents of the University of California, (who own and operate the University of California San Diego Medical Center which we hereafter refer to as the hospital), David Braff and Eve Dreyfus (two doctors who together with the Regents are hereafter collectively referred to as the Medical Center) on Crawford's complaint for false imprisonment and assault and battery.   On appeal, Crawford contends the court erred in finding the Medical Center was immunized from liability by Government Code sections 855.8 and 820.2 which provide immunity for discretionary decisions and diagnosing a person as suffering from a mental illness.   We reverse the granting of the judgment not withstanding the verdict.

The Medical Center also appeals, contending Crawford's counsel committed misconduct during closing argument and the jury committed misconduct in computing the amount of damages ($52,778.02).   We reject these contentions.

FACTS

On August 8, 1988, Crawford, then 57–years–old, was involuntarily admitted to the hospital on a 72–hour hold pursuant to Welfare and Institutions Code section 5150, after a police officer found her wandering around a men's restroom at the San Diego airport talking about Joan of Arc, demons and evil spirits.   When she was admitted, Crawford was severely dehydrated and malnourished.   She was afraid of liquids and food because she believed she was feeding devils occupying her body by eating.

The physicians at the hospital diagnosed Crawford as suffering from a severe form of chronic paranoid schizophrenia.   Crawford had a history of mental illness.   She had been hospitalized for mental illness at least 15 times.   She had a history of assaultive behavior, including striking out at her relatives and at a neighbor.   During an initial examination by Dr. Eve Dreyfus at the hospital, Crawford struck out at the doctor and tried to bite her.   Crawford also, without provocation, slapped a nurse in the face.

On August 11, 1988, the Medical Center placed Crawford on a 14–day hold pursuant to Welfare and Institutions Code section 5250 because she was unable to provide for food, shelter or clothing for herself, was a danger to herself due to her paranoia about food and feeding demons and was a danger to others due to her striking out at the medical personnel.

During her hospitalization, in addition to her unprovoked assaults on others and her fear of food and liquids, Crawford had delusions she was a doctor, nutritionist or lawyer.   Several times she inappropriately disrobed.   Crawford also suffered ambivalence, i.e., “an inability to decide anything.”   Dr. Dreyfus testified about schizophrenics suffering ambivalence, explaining “First they say yes and then they say no.   You ask them, do you want this kind of food?   They will say yes, and then a minute later they'll say no because their thinking process is so disorganized.”   Crawford was prescribed psychotropic drugs to treat her paranoid schizophrenia.   At times she was fearful of the medications.   Crawford was also placed in “seclusion,” a small darkened room furnished only with a mattress, to restrict the amount of stimuli she received and to protect herself and others from harm.

On August 22, the Medical Center applied to have a temporary conservatorship established for Crawford.   The temporary conservatorship was filed in Los Angeles County because Crawford lived and owned property in Los Angeles County.   The Los Angeles County Public Guardian's Office was appointed temporary conservator and a hearing was scheduled in Los Angeles for September 15.   The Medical Center investigated transferring Crawford to a psychiatric facility in Los Angeles but the Los Angeles facility was unwilling to accept Crawford because she had a hearing pending.

The Medical Center did not transport Crawford to the hearing.   The physicians testified Crawford was too ill to be transported to the hearing which would have required her to be in restraints for a two-hour trip to the Los Angeles courthouse.   They believed it was probable the trip would worsen her illness.   There was also disputed evidence whether there was an ambulance company willing to transport her in restraints to a court hearing in Los Angeles or willing only to transport her from the hospital to another psychiatric facility in Los Angeles.   There was also a question whether the cost of transporting to and from Los Angeles was a factor in the Medical Center's decision not to transport Crawford to the hearing.

Beginning on September 12, Dr. Dreyfus attempted to convince Crawford to sign a form consenting to becoming a voluntary patient.   Crawford never signed the voluntary patient agreement.   Dr. Dreyfus could not recall any voluntary patient who had not signed the form.   A voluntary patient has a right to refuse medications unless a psychiatric emergency exists and has a right to leave the facility;  involuntary patients can be forced to take medications and do not have a right to leave the facility.

On September 15, the Los Angeles Superior Court hearing occurred and the court issued a minute order dismissing the temporary conservatorship petition, releasing Crawford from further involuntary treatment and stating she “remains hospitalized as a voluntary patient.”   The social workers and medical personnel treating Crawford did not receive a copy of the minute order nor did they generally inquire as to the results of the hearing.¹

Also on September 15, the Medical Center unsuccessfully attempted to transfer Crawford to an outpatient clinic so that she could be placed on a new 72–hour hold and the process could begin anew.   They could not, however, get Crawford “out of the door.”   The same day the Medical Center requested a writ of habeas corpus be filed in San Diego Superior Court on Crawford's behalf.   The hearing on the writ was scheduled for September 21.

After September 15, the medical staff and social workers felt Crawford's legal status was “unclear.”   The medical staff gave conflicting testimony as to whether Crawford was a voluntary or involuntary patient.   There was evidence that she stated she wanted to leave but was not allowed to do so.   The treating physicians believed she still needed hospitalization and further treatment for her illness.

On September 16, Crawford was given an injection of Haldol Deconoate, an anti-psychotic drug which lasts four to six weeks.   Dr. Dreyfus testified the injection was given because there was a medical emergency which she defined as “a change in mental status that renders the patient a danger to herself and/or a danger to others, which is a fairly substantial change in certain patient cases.”   Other evidence tended to show no psychiatric emergency existed and Crawford was given the injection of Haldol Deconoate because the doctors, anticipating she would soon be discharged, believed the long-lasting effect of the drug would be beneficial to her if she was discharged.   There was disputed evidence as to whether Crawford consented to, resisted or refused the injection.

Crawford was transported to the San Diego court hearing on September 21.   She indicated she wanted to go home.   The court ordered Crawford released from custody.   The Medical Center returned Crawford to the hospital so she could pick up her things.   She left within an hour.

Crawford returned to Long Beach by bus.

Her daughter testified Crawford had become more forgetful and was very fearful about going out by herself.   The daughter stated, “She is just afraid that she'll be taken somewhere and locked up.”   About four months after Crawford was released from the hospital, she was again hospitalized, this time for about seven months.

On October 19, 1988, Crawford filed a complaint against the Medical Center and some of its employees alleging false imprisonment based on her hospitalization at the hospital from September 15 to September 21, 1988 and alleging assault and battery based on the administration of medication during her hospitalization.

Trial commenced in June 1990.   The jury returned a verdict in favor of Crawford on both causes of action, awarding her damages of $52,778.02.²  The Medical Center filed a motion for a judgment notwithstanding the verdict.   The court granted the motion concluding the Medical Center was immune from liability pursuant to Government Code sections 855.8 and 820.2.

DISCUSSION

ISufficiency of Evidence

The Medical Center contends Crawford failed to establish and cannot establish that her hospitalization from September 15, 1988 to September 21, 1988, was unlawful and therefore there was insufficient evidence to support verdicts in her favor for false imprisonment and assault and battery.

 When the factual findings of the jury are attacked for insufficiency of evidence, our duty begins and ends with the determination as to whether there is any substantial evidence to support the findings.  (Leff v. Gunter (1983) 33 Cal.3d 508, 518, 189 Cal.Rptr. 377, 658 P.2d 740.)   Under the substantial evidence rule, all the evidence most favorable to the respondent must be accepted as true and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.  (Estate of Teel (1944) 25 Cal.2d 520, 527, 154 P.2d 384.)   The appellate court has no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.  (Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1125, 267 Cal.Rptr. 503.)

False imprisonment is “the unlawful violation of the personal liberty of another.”  (Pen.Code, § 236;  City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810, 88 Cal.Rptr. 476.)  “False imprisonment protects the personal interest in freedom from restraint of movement․”  (Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, 585, 175 Cal.Rptr. 395.)  “The involuntary hospitalization of a person in a mental institution in violation of the statute[s] constitutes false imprisonment.  [Citations.]”  (Maben v. Rankin (1961) 55 Cal.2d 139, 144, 10 Cal.Rptr. 353, 358 P.2d 681.)  “Insofar as force is used to accomplish the unlawful detention, there is also liability for assault and battery.”  (Ibid.)

 Under the Lanterman–Petris–Short Act (Act) (Welf. & Inst.Code, § 5000 et seq.), a physician of an evaluation facility, without judicial intervention, may, upon probable cause, initiate a 72–hour hold on a person who “as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled” for evaluation and treatment.  (Welf. & Inst.Code, § 5150.)   The physician is specifically protected from criminal and civil liability “for any action by a person released at or before the end of 72 hours pursuant to this article.”  (Welf. & Inst.Code, § 5154.)

At the end of the 72–hour hold, the individual must “be released, referred for further care and treatment on a voluntary basis, certified for intensive treatment, or a conservator or temporary conservator shall be appointed․”  (Welf. & Inst.Code, § 5152.)

If the physician certifies the individual for intensive treatment because the physician has determined, after an evaluation that the person “is, as a result of mental disorder ․ a danger to others, or to himself or herself, or gravely disabled” and the person “has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis,” the physician may initiate a 14–day hold for involuntary hospitalization and treatment.  (Welf. & Inst.Code, § 5250.)   A 14–day hold does not require court approval, but the physician must deliver a copy of the notice of certification to the individual, inform him or her of the legal right to a judicial review by habeas corpus, explain that term to the individual and inform the individual of the right to counsel, including a right to court-appointed counsel.  (Welf. & Inst.Code, §§ 5251, 5254.1.) ³  The Act specifically provides the physician shall have no criminal or civil liability “for any action by a person released at or before the end of 14 days pursuant to this article.”  (Welf. & Inst.Code, § 5259.3.)

A person cannot be detained beyond the 14–day period unless, pursuant to Welfare and Institutions Code section 5300, the person “presents a demonstrated danger of inflicting substantial physical harm upon others;”  the person presents an imminent threat of suicide;  or a temporary conservator is appointed.  (Welf. & Inst.Code, § 5257.)

Under the Act, a physician who “is knowingly and willfully responsible for detaining a person” beyond the 14–day period when no exception applies “is liable to [the person detained] in civil damages.”  (Welf. & Inst.Code, § 5259.1.)

In 1988, the creation of a temporary conservatorship required judicial approval;  a physician could recommend a temporary conservatorship be initiated but creation of a temporary conservatorship required filing a petition in superior court and a court order appointing a temporary conservator.  (Welf. & Inst.Code, § 5352, 5352.1.) ⁴  The maximum duration of a temporary conservatorship was 30 days.  (Welf. & Inst.Code, § 5352.1.)

The Medical Center argues Crawford's hospitalization was not unlawful from September 15 to 21, 1988, because neither the Los Angeles nor San Diego superior courts held Crawford's hospitalization was unlawful.

According to the Medical Center, the September 15, 1988 minute order issued by the Los Angeles court “states that plaintiff is ‘released from further involuntary treatment’, but the release [was] expressly premised on a finding that plaintiff ‘remains hospitalized as a voluntary patient.’ ”  (Emphasis by the Medical Center.)   The Medical Center argues:

“The Los Angeles Court's ‘findings' in this regard are critical.   By its plain terms the order does not state that plaintiff is no longer gravely disabled or in need of further mental care in an inpatient setting;  rather, it simply finds that there is no need for further involuntary treatment because plaintiff has become a voluntary patient.   Indeed, on its face, the order contemplates that plaintiff will continue inpatient treatment in the mental health facility—which is, of course, precisely what occurred.   In sum, the September 15 order in no way suggests that plaintiff's continued receipt of inpatient care was improper.”  (Emphasis by the Medical Center.)

Initially, we note the Medical Center is not quite accurate in its portrayal of the September 15 order of the Los Angeles Superior Court.   The Los Angeles order consists of a printed form to be used for a petition for appointment of a conservator with boxes to be checked as applicable.   Item 11, “Petition dismissed on Petitioner's motion,” is checked.   Item 11 also presents four alternative boxes to check:  (1) “Respondent is not gravely disabled;”  (2) “There is an alternate to conservatorship;”  (3) “Respondent remains hospitalized as a voluntary patient;”  and (4) “Other.”   The judge checked the box for “Respondent remains hospitalized as a voluntary patient.”   Elsewhere on the form, the judge has checked the box for item 12 stating “Respondent released from further involuntary treatment.   Public Guardian is discharged.”

This minute order makes it clear the temporary conservatorship petition was dismissed and Crawford was released from further involuntary treatment.   The order did not authorize the Medical Center to detain Crawford after September 15 on an involuntary basis merely because the Medical Center on its own determined she needed further treatment.   The order merely allowed Crawford to continue treatment on a voluntary basis.

Nor did the September 21 order by the San Diego Superior Court make a finding Crawford was legally hospitalized between September 15 and September 21.   The September 21 order only ordered “release from custody” and stated “Patient is voluntary at this point.”   The court made no findings as to whether Crawford was lawfully detained between September 15 and September 21.   The order found that as of the date of the hearing, the Medical Center could not involuntarily detain Crawford for further treatment, but Crawford could continue treatment on a voluntary basis.

Neither court order established the Medical Center had a right to detain Crawford between September 15 and 21, 1988, or that she was a voluntary patient between those dates.   Both court orders ordered her released from involuntary treatment.   Whether the Medical Center lawfully treated her as a voluntary patient, as permitted by the court orders or unlawfully detained her as an involuntary patient must be determined from other evidence in the record.   We conclude substantial evidence in the record supports the jury's conclusion the Medical Center unlawfully detained Crawford as an involuntary patient between September 15 and 21, 1988.

There was testimony voluntary patients at the hospital have a right to refuse medications, to be released upon request and are required to fill out a voluntary patient form.   The record indicated that despite Dr. Dreyfus's repeated efforts between September 12 and 16 to convince Crawford to become a voluntary patient and sign the form, Crawford refused.   Dr. Dreyfus could think of no voluntary patient who had not signed the form.   Dr. Braff, the director of the In–Patient Locked Psychiatric Unit at the hospital where Crawford was detained, testified Crawford was not a voluntary patient “in the sense of what we typically consider to be a voluntary patient” because voluntary patients have a right to be discharged and if Crawford had asked to be released, the Medical Center would not have released her.   Dr. Dreyfus received a letter from Crawford's attorney on September 20 demanding Crawford be discharged.   Dr. Dreyfus did not ask Crawford if she wanted to be discharged, did not call the letter to anyone's attention and did not discharge her.   Dr. Braff did not read the letter but was aware of the position of Crawford's attorney and would not have released Crawford if he had received the letter.

There was evidence Crawford asked to leave the hospital both before September 15 and between September 15 and 21 but she was not discharged.   While there was also evidence Crawford's illness caused her to be ambivalent so that it was sometimes unclear what she wanted and that there were times when it appeared she wanted to stay at the hospital, the jury could conclude that the evidence, on balance, showed Crawford would have left the hospital after September 15 if she had been a voluntary patient with a right of release.   In particular, the fact her attorney wrote a letter demanding her release and the fact she left the hospital within an hour after she returned from the court hearing tends to show she had desired to leave the hospital earlier but had not been allowed to do so.

We conclude substantial evidence in the record shows the Medical Center, in violation of the Act and Los Angeles court order, detained Crawford as an involuntary patient between September 15 and September 21.   Therefore, the Medical Center could be found liable for false imprisonment and assault and battery based on an illegal hospitalization.

II

Immunities

 The Medical Center argues the trial court correctly decided Government Code sections 820.2 and 855.8 granted immunity for detaining Crawford beyond the statutory period.   They argue the trial court correctly relied on Fish v. Regents of Univ. of Cal. (1966) 246 Cal.App.2d 327, 54 Cal.Rptr. 656 to reach the conclusion the Medical Center was immune from liability.⁵

Government Code section 820.2 provides immunity for injuries resulting from discretionary acts of public employees.⁶  Government Code section 855.8 grants immunity for diagnosing or failing to diagnose mental illness and for prescribing treatment appropriate to the diagnosis.⁷

In the Fish case, the plaintiff sued the doctor who placed him on a 72–hour hold for false imprisonment.   The plaintiff conceded the decision to detain him for observation of his mental condition was a discretionary act for which immunity was provided under Government Code section 820.2 but argued “although the decision itself is discretionary, it was required to be made under the provisions of ․ the Welfare and Institutions Code.”  (Fish v. Regents of Univ. of Cal., supra, 246 Cal.App.2d 327, 332, 54 Cal.Rptr. 656.)   The court explained the applicable code section permitted certain physicians “to detain a person, provided (1) that there be a written application by one of the officers described in the section, (2) that the application state the circumstances under which the person's condition was called to the officer's attention, and (3) that the application shall state that the officer believes, as a result of his personal observation, that the person is mentally ill and because of his illness is likely to injure himself or others if not immediately hospitalized.”  (Id. at pp. 332–333, 54 Cal.Rptr. 656.)   This section also provided that the maximum period to detain the person was 72 hours, excluding Saturdays, Sundays and holidays and that the person was required to be discharged at the end of the 72–hour period unless a petition was brought and granted by the superior court ordering further detention or some other code section applied.⁸

The plaintiff in Fish argued the doctor failed to make the required application and since this was a ministerial act rather than a discretionary act, the city and county were liable for the omission of its employee.   The Fish court rejected the argument because the code section which applied at the time did not require the county physician or assistant county physician to make the application;  the statute only required a “peace officer or health officer” to make the application.   The court then went on to conclude Government Code section 855.8 also provided immunity:

“[Section 855.8 of the Government Code] provides immunity for injury resulting from diagnosing, or failing to diagnose, mental illness.   We regard this section as including a preliminary diagnosis such as that made by Dr. Dean.   The physician, faced with the obligation of protecting the subject and other persons on the one hand, and of regarding the person's liberty on the other hand, must make a judgment.   This judgment is a diagnosis, although a limited one.”  (Fish v. Regents of Univ. of Cal., supra, 246 Cal.App.2d at pp. 333–334, 54 Cal.Rptr. 656.)

The Medical Center argues:  “As in Fish, the decision to retain [Crawford] as a patient during the period from September 15 to September 21, 1988, was clearly based on a diagnosis by [her treating physicians]—their diagnosis that [Crawford] was ‘gravely disabled’ and required further treatment.   Thus, as in Fish, the acts of defendants are protected from liability by the immunity created by Government Code section 855.8.”  (Fn. omitted.)

At issue in Fish was a diagnosis to support a 72–hour hold.   Under the statutory scheme, both then and now, a physician, without prior court approval, may detain a person for 72 hours.  Fish did not involve a situation where the physician's diagnosis of mental illness was not alone sufficient to detain the person.   In Fish, the detention was statutorily authorized by the physician's diagnosis;  the physician in Fish, at worst, failed to fill out some paperwork which the court found was not required.   Here, in contrast, a physician's diagnosis was not legally sufficient to detain Crawford after the Los Angeles court had issued its order releasing her from further involuntary treatment.

The Fish case does not, as the Medical Center suggests, provide immunity for all detentions resulting from a diagnosis of mental illness even when there is a failure to follow all the requirements of the Welfare and Institutions Code.   The Fish court held not only did no violation of the Welfare and Institutions Code occur, but also concluded, in dicta, the failure to complete the paperwork was “a secondary thing” and was “such an omission of a ministerial act as would make a public entity which employs such physician liable for false imprisonment.”  (Fish v. Regents of Univ. of Cal., supra, 246 Cal.App.2d at p. 333, 54 Cal.Rptr. 656.)   Here, the failure to comply with the Welfare and Institutions Code was not a mere “secondary thing.”   The failure involved violating a court order and a legislative enactment requiring judicial approval of detentions after a certain period of time has elapsed.⁹

The Fish case does not provide support for the Medical Center's argument they were immunized for their involuntary hospitalization and treatment of Crawford from September 15 to September 21, 1988.

The Medical Center argues the applicability of the discretionary immunity of Government Code section 820.2 to this case is also demonstrated by the Supreme Court's decision in Thompson v. County of Alameda (1980) 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728.   In Thompson, the county released a juvenile offender to the temporary custody of his mother.   Within 24 hours after he was released, he murdered the plaintiffs' child.   The plaintiffs sued the county alleging the county knew the juvenile had “ ‘latent, extremely dangerous and violent propensities regarding young children,’ ” had threatened to kill a young child in the neighborhood and knew it was likely if the juvenile was released the offender would commit violent and sexual assaults on young children.  (Id. at p. 746, 167 Cal.Rptr. 70, 614 P.2d 728.)   The plaintiffs based liability on the county's decision to release the juvenile, its selection of the mother as custodian and its failure to adequately supervise her activities.

The Thompson court rejected the claim the county was liable for releasing the juvenile because Government Code section 845.8 provided specific immunity from a decision to release a prisoner.   As to the claims based on the county's selection of the mother as a custodian and its supervision of her activities, the court found the county was protected by the discretionary immunity provision of Government Code section 820.2.¹⁰  The court explained:

“The discretionary nature of the selection of custodians for potentially dangerous minors and the determination of the requisite level of governmental supervision for such custodians becomes apparent when the underlying policy considerations are analyzed.   Choosing a proper custodian to direct the attempted rehabilitation of a minor with a prior history of antisocial behavior is a complex task.  [Citations.]   The determination involves a careful consideration and balancing of such factors as the protection of the public, the physical and psychological needs of the minor, the relative suitability of the home environment, the availability of other resources such as halfway houses and community centers, and the need to reintegrate the minor into the community.   The decision, requiring as it does, comparisons, choices, judgments, and evaluations, comprises the very essence of the exercise of ‘discretion’ and we conclude that such decisions are immunized under section 820.2.”  (Thompson v. County of Alameda, supra, 27 Cal.3d 741, 748–749, 167 Cal.Rptr. 70, 614 P.2d 728.)

The Medical Center argues:  “As in Thompson, defendants were faced with a decision which required comparisons, and evaluations of competing interests of [Crawford's] safety, the public safety and [Crawford's] legal rights.  [The Medical Center's] choice was a deliberate and careful effort to protect each of these competing interests, and therefore, should be deemed immune from liability under Government Code section 820.2.”  (Fn. omitted.)

The Medical Center's argument starts with a flawed premise, that is, that they, like the county in Thompson, were authorized to make the discretionary decision whether to release or detain Crawford.   The Medical Center did not have such legal authority.   The discretionary decision to detain Crawford beyond September 15, 1988, belonged to the superior court, not the Medical Center.   The Thompson case does not support the Medical Center's argument they should be provided immunity for making a discretionary decision to detain Crawford;  they had no such discretion to hold her.   After the Los Angeles court order dismissing the temporary conservatorship petition and ordering her released from further involuntary treatment, the Medical Center had no discretion to detain Crawford if she wanted to leave.

We further observe a decision these Government Code sections provide immunity for the unlawful involuntary hospitalization and treatment of a mentally ill person would conflict with the Act which specifically authorizes an award of civil damages against any individual who is “knowingly and willfully responsible for detaining a person in violation of the provisions of [the Act].”  (Welf. & Inst.Code, § 5259.1.)   To grant immunity under the Government Code sections would thwart the Legislature's expressed intent that civil damages be available to a person, such as Crawford, who has been involuntarily hospitalized in violation of the Act.¹¹

III

On appeal, the Medical Center argues a new trial is mandated for two reasons:  (1) Crawford's attorney improperly suggested to the jury during closing argument that they should award punitive damages and (2) the jury improperly used a formula to arrive at the amount of damages for pain and suffering;  the Medical Center does not argue on appeal that a new trial is mandated solely based on the ground the damages were excessive.

 The Medical Center moved for a new trial at the same time it moved for a judgment notwithstanding the verdict.   When the court granted the Medical Center's motion for a judgment notwithstanding the verdict on August 9, 1990, it declined to rule on the new trial motion and concluded the motion for a new trial was “deemed denied and can be appealed.”   The court, however, noted it believed Crawford's counsel in closing argument used language which was not proper “when the essence of that language was:  We have to stop these doctors or hospitals from doing this type of thing.   Let's send a message to them.   That's a clear argument for punitive damages and punitive damages was not an issue in this particular case․”

The Medical Center moved for reconsideration of its new trial motion.   At the hearing on August 23, the court declined to change its position “of allowing the motion for new trial to be denied by operation of law.”   The court nonetheless explained its view of the merits of the motion in terms which suggested the court might grant the motion.

Under Code of Civil Procedure section 660, if the court fails to rule on a motion for a new trial within 60 days, “the effect shall be a denial of the motion without further order of the court.”   Contrary to the suggestion of the concurring opinion, there was a ruling in this case;  by operation of law, the motion for a new trial was denied.

 A trial court has broad discretion to grant or deny a motion for a new trial.  (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387, 93 Cal.Rptr. 769, 482 P.2d 681.)   In reviewing an order denying a motion for a new trial, we examine the entire record to determine independently whether error occurred and, if so, whether the error prevented the complaining party from having a fair trial.  (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, fn. 10, 185 Cal.Rptr. 654, 650 P.2d 1171;  City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872, 135 Cal.Rptr. 647, 558 P.2d 545;  Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 321, 276 Cal.Rptr. 430.)

 Based on our independent review of the record, we conclude the Medical Center was not denied a fair trial due to the claimed misconduct by Crawford's attorney and the jury and therefore we affirm the denial of the new trial motion.

A. Misconduct During Closing Argument

The Medical Center contends it is entitled to a new trial because Crawford's counsel committed misconduct during closing argument by telling the jury to “send a message” to the Medical Center regarding their treatment of involuntary mental patients such as Crawford.   The Medical Center argues this argument “had no purpose other than to inflame and incite the jury” to award Crawford punitive damages even though she had abandoned her claim for punitive damages.

The Medical Center has misrepresented the argument of Crawford's counsel.   At the very outset of his argument, Crawford's counsel made it clear Crawford had withdrawn her claim for punitive damages.   Crawford's counsel made the “send-a-message” argument toward the end of his argument.   Counsel, after arguing how the Medical Center failed to follow the law, stated:

“What concerns me is that we have physicians and doctors making decisions about people, decisions whether or not that person is going to be deprived of their liberty or not, and those physicians are not always right.   The doctors testified that they had no belief that Rosie Crawford would be able to survive safely outside of the hospital.

“Well, probably I can say that she proved them wrong at least for a several-month period.   The testimony was that she is currently living in her apartment in Long Beach.   Her daughter is with her.   She has her freedom.   I think we need to make the message clear that if physicians or psychiatrists are going to have the right to deprive people of their liberty you need to follow the law.   That's all we are asking:  follow the law.”

It is clear the “send-a-message” argument was not about punitive damages but an argument Crawford should prevail because the Medical Center failed to follow the law.   This was proper argument.

 Crawford contends the Medical Center waived any error during closing argument by failing to object to the alleged misconduct.   While a trial court can grant a new trial based on attorney misconduct even though there was no objection (see Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal.App.3d 600, 605, 136 Cal.Rptr. 787), as a general rule, a claim of attorney misconduct will not be reviewed on appeal unless the record shows there was a timely objection and a request the jury be admonished (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610, 39 Cal.Rptr. 721, 394 P.2d 561, cert. den. 380 U.S. 909, 85 S.Ct. 892, 13 L.Ed.2d 796).  An exception to this rule applies when “there are flagrant and repeated instances of misconduct” which denied the complaining party a fair trial.   (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 355, 133 Cal.Rptr. 42.)   This is not such a case.   Here there was only one claim of alleged misconduct.   Even if we were to conclude Crawford's attorney committed misconduct, we would not reverse because the Medical Center, by failing to object, waived the error.

B. Jury Misconduct

The Medical Center contends it is entitled to a new trial because the jury committed misconduct by relying on an inappropriate formula to award damages and by speculating whether Crawford could have attended the September 15, 1988 Los Angeles hearing if she had received a long-acting injection of Haldol Deconoate before the hearing.

“[A] new trial may be granted where the substantial rights of a party are materially affected by misconduct or irregularity in the proceedings of the jury.”  (Tapia v. Barker (1984) 160 Cal.App.3d 761, 765, 206 Cal.Rptr. 803;  Code Civ.Proc., § 657.)

Under Evidence Code section 1150, subdivision (a),

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.   No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”

“The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict ․ are those open to sight, hearing, and the other senses and thus subject to corroboration.  [Citations.]”   (People v. Hutchinson (1969) 71 Cal.2d 342, 350, 78 Cal.Rptr. 196, 455 P.2d 132, cert. den., 396 U.S. 994, 90 S.Ct. 491, 24 L.Ed.2d 457.)   The “distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, ․ has been the basic limitation on proof set by the leading decisions allowing jurors to impeach their verdicts.  [Citations.]”  (Id. at p. 349, 78 Cal.Rptr. 196, 455 P.2d 132.)

As we explained in Ford v. Bennacka (1990) 226 Cal.App.3d 330, 333–334, 276 Cal.Rptr. 513:

“[Evidence Code s]ection 1150 ‘does not envision a procedure whereby a trial judge, as a result of a claim of jury misconduct, reviews a “replay” of the particular language used by various jurors as they deliberated and makes a subjective determination of its propriety.   Such a procedure would be too great an extension of the court's limited authority to invade the traditionally inviolate nature of the jury proceedings.’  [Citation.]  ‘If there is one thing which is clear from the language of Evidence Code section 1150 and the case law dealing with the subject, it is that the mental processes of the jurors are beyond the hindsight probing of the trial court.’  (Maple v. Cincinnati, Inc. (1985) 163 Cal.App.3d 387, 394․ [209 Cal.Rptr. 451] )”  (Fn. omitted.)

 Jury misconduct raises a presumption of prejudice, and unless the presumption is rebutted, a new trial should be granted.  (In re Stankewitz (1985) 40 Cal.3d 391, 402, 220 Cal.Rptr. 382, 708 P.2d 1260.)

1. Jury Use of Formula

The Medical Center submitted declarations by five jurors stating the jury in calculating the amount of general damages used “a formula” consisting of the number of hours Crawford was unlawfully hospitalized (7 days x 24 hours) multiplied by the hourly rate of the Medical Center's expert witness ($250).   The declarations state this figure served as the basis for $50,000 of the award, which was rounded up from the jury's formula.   The declarations state the jurors then added Crawford's requested special damages for medical costs of about $2,700 to the $50,000.

The Medical Center contends this was an arbitrary formula not rationally related to the evidence presented and shows the jury committed misconduct mandating a new trial.

 The Supreme Court has explained the calculation of general damages for pain and suffering is left to the “subjective discretion” of the jury.   (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 103, 160 Cal.Rptr. 733, 603 P.2d 1329, cert. den. (1980) 449 U.S. 820, 101 S.Ct. 77, 66 L.Ed.2d 22.)   Determining the amount to be awarded to compensate for the plaintiff's pain and suffering is a difficult task for the jury since they have no objective method of evaluating the damages and no expert opinion expressing a subjective opinion of the proper amount;  “[i]n a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy.”  (Beagle v. Vasold (1966) 65 Cal.2d 166, 172, 53 Cal.Rptr. 129, 417 P.2d 673.)

Recently, the court in Garfoot v. Avila (1989) 213 Cal.App.3d 1205, 261 Cal.Rptr. 924, rejected a claim a jury's use of a per diem formula in awarding pain and suffering was misconduct requiring a new trial.   In Garfoot, the jury calculated pain and suffering at 50 cents an hour for 16 hours a day for 30.5 years for a total of $89,060.   The jury then reduced this amount to present cash value.   The Garfoot court concluded “the conduct complained of was permissible within the discretion of the jury.”  (Id. at p. 1213, 261 Cal.Rptr. 924.)   The court explained:

“Since the law does not prescribe definite methods for the jury to calculate reasonable compensation for pain and suffering, it would be a contradiction in terms to conclude that a jury's utilization of a particular method not expressly prohibited by law could influence the verdict improperly.   The critical issue subject to review by the trial and appellate courts is whether the jury's award for pain and suffering is just and reasonable as required by law, not the precise method used to achieve that result.

“․

“Pain and suffering, by definition, is an abstract concept.   It is not readily calculable through a convenient mathematical formula.   Evidence of its precise monetary equivalent cannot be definitely presented as if it was past medical expenses or wages lost due to an injury.   Indeed, the jury is only instructed to award a ‘reasonable’ amount, that a definite standard or method of calculation does not exist, and argument urging a particular calculation or amount must not be considered evidence.”  (Garfoot v. Avila, supra, 213 Cal.App.3d 1205, 1211–1212, 261 Cal.Rptr. 924, fn. omitted.)

 Here, the declarations show only that the starting point for the jury's determination of general damages was an examination of how an expert, hired by the Medical Center, valued his own time on an hour by hour basis.   In calculating damages for pain and suffering, the jury must begin someplace.   To begin by looking at how a highly paid professional values his own time spent pursing his career in determining the value of lost liberty, pain and suffering caused by an unlawful hospitalization and battery is not unreasonable.   Further, the amount actually awarded by the jury was not simply based on the expert's hourly rate.   The jury awarded Crawford greater damages.

The Medical Center suggests that any use of a formula not specifically shown by the evidence constitutes jury misconduct and cites in support Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 223 Cal.Rptr. 859.  Moore has no application to this case.   In Moore, the jury awarded damages for lost future income in the real estate field in a case involving medical malpractice which damaged the physical appearance of the plaintiff who was an actor, model and real estate salesman.   The jury used a formula based on the personal experience of one of the jurors rather than on any evidence presented at trial.   The court, without discussion, held “[s]uch action on the part of the jury was inappropriate” and reduced the award by the amount awarded for loss of future income in the real estate industry.  (Id. at p. 743, 223 Cal.Rptr. 859.)

The Moore decision is clearly distinguishable from this case.   First, it does not involve an award of damages for pain and suffering but an award for loss of future income, an item of damages which can be objectively calculated.   Second, it is not clear that the Moore decision is rejecting the use of a formula or is rejecting any award of damages for loss of future income in the real estate field.   The court's decision to eliminate all damages for future lost real estate income and a reading of the facts of the case suggest the problem was not with the use of the formula but the lack of any evidence showing the plaintiff suffered a loss of future real estate income as a result of the malpractice.   Here, of course, there was evidence presented that Crawford had pain and suffering damages.¹²

 Fundamentally, what the Medical Center attacks through the jury declarations is the subjective deliberative process of the jury in calculating pain and suffering.   The subjective, deliberative mental process engaged in by the jury is not a proper basis for impeaching a verdict.   We conclude, as did the court in Garfoot v. Avila, supra, 213 Cal.App.3d 1205, 1213, 261 Cal.Rptr. 924, “the conduct complained of was permissible within the discretion of the jury.”

2. Consideration of Injection Before Los Angeles Hearing

 The Medical Center asserts the jury committed misconduct by considering whether Crawford could have received a long-acting injection of Haldol Deconoate before September 15 which would have allowed her to attend the hearing in Los Angeles.   The Medical Center neither cites authority nor presents any argument to show consideration of this injection was either misconduct or resulted in prejudice.   It is not self-evident that this conduct was wrongful or prejudicial.   By failing to make any argument or cite authority, the Medical Center has waived this issue for appellate consideration.  (See Jimmy Swaggart Ministries v. State Bd. of Equalization, supra, 204 Cal.App.3d 1269, 1294, 250 Cal.Rptr. 891.)

3. Battery Found Based on Pre–September 15 Conduct

 The Medical Center contends it is entitled to a new trial because one of the jurors stated in her declaration:  “During the jury deliberations the jurors, concluded that the giving of the long acting drug to the patient was not a battery but it was also the opinion of the jurors that restraining the patient for twelve days after she hit a nurse was a battery.”   The Medical Center explains this restraint or “seclusion” of Crawford for 12 days occurred before the relevant time period, i.e., September 15–21, 1988 and therefore could not properly be the basis for finding a battery occurred.

Initially, we observe it is not clear whether the declaration is describing interim conclusions by the jury or describing the jury's final conclusion.   Significantly, the declaration refers to conclusions reached “[d]uring the jury deliberations” rather than stating conclusions formed the basis of the jury's final verdict.   Second, we “note the claimed jury ‘misconduct’ here does not involve matters extrinsic to the deliberative process;  rather it is intrinsic to the deliberative process.”  (Smoketree–Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1750, 286 Cal.Rptr. 435.)  “[T]he declarations at most suggest ‘deliberative error’ in the jury's collective mental process—confusion, misunderstanding, and misinterpretation of the law.”  (Ford v. Bennacka, supra, 226 Cal.App.3d 330, 336, 276 Cal.Rptr. 513.)   When the alleged misconduct involves confusion in the deliberative process it is not “misconduct” which justifies overturning the verdict.   To allow impeachment based on allegations the jury did not “correctly” deliberate would subject nearly all verdicts to impeachment.   The Supreme Court has made it clear that a verdict may not be impeached based upon the individual, subjective mental processes of the jurors.   Here, the Medical Center attempts to impeach the verdict through a declaration describing the subjective mental process of the jurors during deliberations.   This is not a proper basis for impeaching the verdict.

DISPOSITION

The judgment not withstanding the verdict is reversed and the jury's award of damages is reinstated.   Crawford to recover her costs.

I concur in the majority's reversal of the trial court's judgment notwithstanding the verdict.   I dissent, however, from the majority's disposition of the case.   Under the unusual circumstances of the post-trial rulings here presented, the case should be remanded to the trial court for a ruling on the motion for new trial.   If the motion for new trial is denied, I presume the jury's verdict will be reinstated automatically.

Following entry of judgment on the jury's verdict, two post-trial motions were filed by the defendants.   The defendants moved (1) for judgment notwithstanding the verdict, upon the ground of governmental statutory immunity, and (2) for a new trial, upon grounds of jury and attorney misconduct and excessive damages (among other grounds).   The two motions were considered by the court together, in sessions of the court on two separate days.

The court determined to rule in favor of the defendants on its motion for judgment notwithstanding the verdict.   It thereupon decided that, having entered judgment in favor of the defendants, there was no need to rule on the motion for new trial.¹  The court nevertheless addressed advisory comments to counsel concerning the merits of the motion for new trial, as follows:

“I indicated to you in our informal conference in chambers yesterday that I would not change my position on the matter of allowing the motion for new trial to be denied by operation of law and I'm still firm in that decision that I'm not going to do anything but allow it to be denied by operation of law which I think will take place—on August the 27th the time expires.   Now, if I don't rule then it's deemed denied on its merits.

“So that's the position that I take now and I don't think that we have to discuss that situation any further because I'm firm in that or I would have ruled on that motion for new trial at the time but I went the other way and granted the judgment notwithstanding the verdict and I did make some advisory comments at that time;  and I'll make the advisory comments now in that situation and my thinking on it so that it will become part of this order on the denial of the motion to consider and hear the merits of the new trial for the second time.

“I have found in my advisory comments that plaintiff's counsel in his closing arguments used words to the effect that called for a jury to fix damages that would, what, send a message to the defendants and stop them from proceeding with patients in the manner that they proceeded with the plaintiff.   The phrases, as I interpreted the words used by the plaintiff's counsel in the closing argument, could be interpreted as disguised effort to ask for punitive damages against the defendants;  and counsel for the plaintiff had waived his request for punitive damages at the beginning of the trial.

“Moreover, when you read the declarations of some of the jurors that had submitted their declarations in the matter you could read into those declarations that the jurors failed to exercise independent consideration and judgment in arriving at the damages because as I recall some of those declarations, which I haven't looked at since we had the hearing on the motion, said that they fixed the compensatory damages by using the hourly rate that the attorneys had paid the expert witnesses to determine the amount of damages that the plaintiff was entitled based on her length of stay in the institution beyond the time that they fixed as the—her time for release;  and I find that that was not the use of independent consideration if they fixed the plaintiff's damages based upon the rate which I think is $250 an hour for the expert and then gave the plaintiff $250 an hour for the time that she was held beyond what they believed was legal.

“As a matter of fact, I believe from my own review of the evidence and the impressions that I received from the trial that this plaintiff benefited from her hospitalization because you could say without exaggeration that she came in there a raving maniac having been caught in the men's room saying that her stomach was full of demons and then she exited that hospital with the assistance of her counsel and was able to take the bus back to Los Angeles without incident.”

The only conclusion to be derived from the judge's remarks is that he found merit in the motion for new trial, but did not render a ruling on it because he had elected to grant the motion for judgment notwithstanding the verdict.

In considering the posture of review appropriate in this situation, I believe we must bear in mind the great discretion vested in trial judges in granting motions for new trials.   As set forth in 8 Witkin, California Procedure (3d ed. 1985) Attack on Judgment in Trial Court, section 135, page 538:

“The trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial.   Where error or some other ground is established, his discretion in granting a new trial is seldom reversed.   The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial, or some other ground was compelling.   Review is limited to the inquiry whether there was any support for the trial judge's ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion.”

Had the court ruled specifically on the motion for new trial, and granted it, the judge would have been required by Code of Civil Procedure section 657 to “specify the ground or grounds upon which [the motion] is granted and the court's reason or reasons for granting the new trial upon each ground stated.”   Reviewing the record before us, we can be satisfied that the trial judge considered a new trial warranted because of attorney and jury misconduct, and also apparently by reason of his conclusion that the damages were excessive.   However, his extemporaneous comments hardly rise to the level of the statutory specification of grounds and reasons.   We are therefore not in a good position to review the presumed findings of fact made by the court in its treatment of the new trial motion.   Such findings of fact, including the judge's personal assessment of the impact of attorney misconduct, the question of the dimension of the damage award, and the general issue of prejudice, would be most helpful to this reviewing court.

The treatment accorded by the majority is, essentially, to review the denial of the new trial motion on a de novo basis, as if we were in the position of the trial court judge.   Without analyzing in detail the treatment by the majority of the new trial issues, suffice it to say that the motion does raise at least colorable grounds for new trial.   The jury affidavits were properly admitted under Evidence Code section 1150 as reflecting upon “overt acts, objectively ascertainable.”  (Tramell v. McDonnell Douglas Corp. (1984) 163 Cal.App.3d 157, 171, 209 Cal.Rptr. 427.)   The affidavits were not controverted and hence are deemed admitted.  (See Tapia v. Barker (1984) 160 Cal.App.3d 761, 766, 206 Cal.Rptr. 803.)   While a $50,000 award for involuntary confinement in a hospital for seven days may seem not excessive to some (i.e., the majority here), it is certainly arguable that it is excessive.   The plaintiff was a person of recurrent mental disability who was well familiar with hospital treatment.   She was properly admitted and beneficially treated for an extended period at public expense.   That her beneficial treatment continued six days beyond the point at which she should have been dismissed can hardly be deemed great damage.   As the trial judge remarked, she emerged from treatment in much better shape than her condition on admission.

In sum, I believe that if the trial judge had ruled on the new trial motion he would have granted it, and we would have been very hard pressed to reverse his decision.   What, then, is the appropriate remedy for this peculiar chain of events?   Although I have no authority to cite for the proposition, it seems to me that when a judgment notwithstanding the verdict is granted a pending new trial motion becomes moot.   It is neither granted nor denied.   It is effectively taken off calendar by operation of law.   Since the motion became moot upon the judge's ruling on the companion motion, I believe it cannot be said that the motion was denied by operation of law, as the trial court apparently believed would be the case.

Accordingly, it is my view that, having reversed the trial court's ruling of judgment in favor of the defendants, it is now incumbent upon the trial judge to deal with the motion for new trial.   Surely it is within our power to remand the case for that disposition.   In light of the unusual circumstances recited above, it is my view that this is the only disposition that achieves complete justice.  (Cf. Malkasian v. Irwin (1964) 61 Cal.2d 738, 747, 40 Cal.Rptr. 78, 394 P.2d 822;  Mercer v. Perez (1968) 68 Cal.2d 104, 119, 65 Cal.Rptr. 315, 436 P.2d 315.)   We should not take it upon ourselves to rule on the new trial motion, depriving the trial court of its opportunity to exercise discretion.

FOOTNOTES

1.   One of the social workers testified she attempted to find out what happened at the hearing in Los Angeles by calling the public guardian's office and received answers that “were not very clear.”

2.   The jury returned special verdicts finding Dr. David Braff and the Regents of the University of California liable for both false imprisonment and battery and finding Dr. Eve Dreyfus liable for battery.

3.   The individual may also request a certification review hearing “to determine whether or not probable cause exists to detain the person for intensive treatment related to the mental disorder․”  (Welf. & Inst.Code, § 5254.)

4.   In 1988, the Legislature amended the Act to allow a physician to certify a patient for an additional 30 days of intensive treatment where the physician believes the patient remains gravely disabled as a result of his or her mental illness and remains unwilling or unable to accept treatment voluntarily.  (Welf. & Inst.Code, § 5270.15.)   The Legislature explained:  “It is the intent of the Legislature to reduce the number of gravely disabled persons for whom conservatorship petitions are filed and who are placed under the extensive powers and authority of a temporary conservator simply to obtain an additional period of treatment without the belief that a conservator is actually needed and without the intention of proceeding to trial on the conservatorship petition.   This change will substantially reduce the number of conservatorship petitions filed and temporary conservatorships granted under this part which do not result in either a trial or a conservatorship.”  (Welf. & Inst.Code, § 5270.10.)

5.   Crawford contends the Medical Center waived the protection of the Government Code immunities by not pleading immunity as an affirmative defense.   Crawford asserts the Medical Center cannot raise the issue on appeal.   We find no merit to this contention.   The Medical Center sufficiently raised the issue.   The trial court was entitled to consider immunity by a motion for a judgment notwithstanding the verdict.   Further, even if we were to conclude the Medical Center was somehow remiss in raising the issue in the trial court, we would still consider the issue on appeal since it involves solely a jurisdictional defect and a question of law rather than a resolution of factual matters.  (See Buford v. State of California (1980) 104 Cal.App.3d 811, 826, 164 Cal.Rptr. 264.)

6.   Government Code section 820.2 provides:  “Except as otherwise provided by statute, a public employee is not liable for an injury resulting form 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.”

7.   Government Code section 855.8, in pertinent part, provides:  “(a) Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction.“(b) A public employee acting within the scope of his employment is not liable for administering with due care the treatment prescribed for mental illness or addiction.”

8.   Welfare and Institutions Code section 5050.3, to which the Fish court referred, provided:  “When any person becomes so mentally ill as to be likely to cause injury to himself or others and to require immediate care, treatment, or restraint, a peace officer or health officer, who has reasonable cause to believe that such is the case, may take the person into custody for his best interest and protection and place him as provided in this section.   The person believed to be mentally ill may be admitted and detained in the quarters provided in any county hospital or state hospital upon application of the peace officer or health officer.   The application shall be in writing and shall state the circumstances under which the person's condition was called to the officer's attention and shall also state that the officer believes, as a result of his personal observation, that the person is mentally ill and because of his illness is likely to injure himself or others if not immediately hospitalized.“The superintendent or physician in charge of the quarters provided in such county hospital or state hospital may care for and treat the person for a period not to exceed seventy-two (72) hours, excluding Sundays and nonjudicial days.   Within said seventy-two (72) hours the person shall be discharged from the institution unless a petition of mental illness is presented to a judge of the superior court and the court issues an order for detention of such person, or unless the person is admitted as a patient under any other provision of law.”  (Stats.1955, ch. 106, § 1, p. 569.)

9.   The Legislature has explained the Act was intended, inter alia, “[t]o end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons ․ and to eliminate legal disabilities,” “[t]o provide prompt evaluation and treatment of persons with serious mental disorders,” “[t]o guarantee and protect public safety,” “[t]o safeguard individual rights through judicial review.”  (Welf. & Inst.Code, § 5001, subds. (a), (b), (c), (d).)

10.   The court also found the county had immunity under Government Code section 845.8 because that section provides immunity not only for release but the terms and conditions of a prisoner's release.

11.   In a footnote, the Medical Center also contends it has immunity under Government Code sections 856 and 854.8, immunities which were not argued to the trial court.Government Code section 856, in pertinent part, provides immunity for a public entity or public employee acting within the scope of his employment “for any injury resulting from determining in accordance with any applicable enactment:  [¶] (1) Whether to confine a person for mental illness or addiction” or “(2) The terms and conditions of confinement for mental illness or addiction.”Government Code section 854.8 provides immunity for “[a]n injury proximately caused by a patient of a mental institution” or “to a inpatient of a mental institution.”The Medical Center makes no argument as to these immunities beyond a statement they apply.   As a general rule, failure to argue or cite authority for a proposition, waives the issue on appeal.  (See Jimmy Swaggart Ministries v. State Bd. of Equalization (1988) 204 Cal.App.3d 1269, 1294, 250 Cal.Rptr. 891.)We further note, Government Code section 856 does not grant immunity here since the Medical Center's decision to confine Crawford after September 15 was not “in accordance with any applicable enactment” and we also do not believe Government Code section 854.8 provides immunity here because it appears to be directed to personal injuries (not related to medical malpractice or a dangerous condition of public property) occurring to or caused by patients in a mental institution.

12.   It appears the focus of damages in Moore was on losses to the plaintiff's acting and modeling career as a result of the injury to the plaintiff's physical appearance.

1.   The court's comment in this regard was:  “I don't have—I could rule on the motion for new trial or I can just rule on the motion notwithstanding the verdict.   I don't have to rule on both of them.   Since I'm not ruling on the motion for a new trial it's deemed denied and can be appealed.”

KREMER, Presiding Justice.

WORK, J., concurs.