William Ray ESPOINOZA, Plaintiff, and William Espinoza, Jr.; et al., Plaintiffs-Appellants, v. Stanley SNIFF, an individual; et al., Defendants-Appellees, 694 F. App'x 575

MEMORANDUM Espinoza appeals the district court’s refusal to instruct the jury on presumptive negligence under California Evidence Code § 669 based on alleged violations of the Riverside County Sheriffs Department Corrections Division Policy regarding classification and housing, which plaintiffs contend led to the death of an inmate.

California Evidence Code § 669.1 provides that an internal policy cannot be the basis of a presumptive negligence instruction unless it “has been formally adopted as a statute, as an ordinance of a local governmental entity, ... or as a regulation by an agency of the state pursuant to the Administrative Procedure Act.” There is no indication that the Policy was ever so adopted. Instead, Espinoza points out that a state regulation (Cal. Code Regs., tit. 15, § 1050) required the jail to adopt some policy governing inmate classifications.

However, an ex ante direction to adopt a general policy that does not specify its specific terms is not the same as an ex post adoption of that policy. The regulation is thus not an adoption of the Policy as a statute, ordinance, or regulation. The Policy therefore cannot be the basis of a presumptive negligence instruction, and the district court did not err by refusing to give that instruction. The judgment of the district court is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.