Opinion
B184683
12-4-2006
KATERINA P., a Minor, etc., Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.
Law Offices of Steven C. Gambardella, Steven C. Gambardella for Plaintiff and Appellant. Monroy, Averbuck & Gysler, Clayton C. Averbuck, Jennifer E. Gysler, Brian V. Zayas for Defendant and Respondent.
Appeal is taken from an order of dismissal after demurrers were sustained to a second amended complaint, without leave to amend. The minor plaintiff is attempting to state a negligence claim against the government for its alleged failure to investigate reports that she was being abused by her father. The operative pleading demonstrates that the government conducted at least nine investigations into the reported abuse. Plaintiffs claim that the government failed to investigate cannot succeed, as a matter of law.
ALLEGATIONS
The factual allegations are taken from the second amended complaint (SAC). We assume the truth of all properly pleaded material allegations when reviewing the trial courts ruling on a demurrer. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
Katerina P., born in 2000, is the daughter of Mark P., who had sole legal and physical custody of Katerina. Between October 2001 and May 2002, eight reports of suspected abuse were made to the Department of Children and Family Services (DCFS), an agency of the County of Los Angeles (County). The reporting parties charged that Katerina had marks and bruises on her face and body, and was being sexually abused by Mark P. DCFS "conducted not less than nine separate, in-person visits" to check on Katerinas well-being, based on the child abuse reports.
In June 2002, Mark P. took Katerina to a physician after the child suffered disfiguring acid burns on her face, ears, scalp and hands. Katerina was admitted to a hospital for treatment. Mark P. and his girlfriend allegedly caused these injuries.
Through her guardian ad litem, Katerina brought suit against Mark P. and the County, among others. The SAC asserts a single claim against the County for negligently violating Section 31-105, the "Emergency Response Protocol," of the California Department of Social Services Manual (the DSS Manual). The alleged violations were that the County (1) failed to conduct an in-person investigation, assess the situation, and take corrective action to ensure Katerinas safety and welfare; (2) failed to engage supervisorial review of the facts and take action to protect Katerina; (3) failed to closely monitor Katerina with frequent visitation and inspections; and (4) failed to advise and counsel Mark P.
The other defendants are not parties to this appeal.
PROCEDURAL HISTORY
A government tort claim was filed asserting that the County failed "to properly investigate and care for" Katerina. The original complaint was filed in November 2003. The County demurred, arguing that it is immune from liability for discretionary acts. The parties stipulated to sustain the demurrer with leave to amend.
A first amended complaint was filed. The County demurred on the grounds that it is immune from liability, and that the plaintiff failed to allege the violation of a mandatory duty. The court sustained the demurrer with leave to amend.
The SAC was filed in April 2005. On demurrer, the County renewed its argument that it is immune from liability. The trial court found that DCFS complied with any mandatory duty by conducting in-person visits to check on Katerinas well-being after receiving child abuse reports. DCFSs decision not to institute a dependency proceeding was discretionary, not ministerial, and results in government immunity from prosecution. The court sustained the Countys demurrers without leave to amend. In June 2005, the court entered a judgment of dismissal in favor of the County. This timely appeal ensued.
DISCUSSION
1. Appeal And Review
Appeal may be taken from an order dismissing the complaint after demurrers are sustained without leave to amend. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.) We review de novo the ruling sustaining the demurrers, exercising our independent judgment to determine whether a cause of action has been stated as a matter of law. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) Denial of leave to amend the complaint is reviewed for abuse of discretion. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
2. The SAC Does Not State A Viable Negligence Claim Against The County
"In California, all government tort liability must be based on statute." (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.) A public entity may be liable for failure to discharge "a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury . . . unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Gov. Code, § 815.6.) In an action against a public entity, "[o]ne of essential elements that must be pled is the existence of specific statutory duty." (Becerra v. County of Santa Cruz, supra, 68 Cal.App.4th at p. 1458.) "[A] negligence per se claim against a public entity is the same as a breach of mandatory duty cause of action." (OToole v. Superior Court (2006) 140 Cal.App.4th 488, 510, fn. 12.)
The SAC relies solely on an alleged violation of the DSS Manual as the basis for Katerinas negligence claim. Section 31-105, the Emergency Response Protocol of the DSS Manual, is used to help a social worker determine whether an in-person investigation is required. According to the protocol, the social worker must: collect certain identifying information regarding the child, the abuse reporter, the childs household, and the perpetrator; describe the incident and risk factors; and weigh certain decision criteria.
According to the allegations in the SAC, DCFS "conducted not less than nine separate, in-person visits" to check on Katerinas well-being. This was in response to the eight reports of suspected child abuse received by DCFS. Because section 31-105 only helps a social worker determine whether or not to conduct an in-person investigation in response to a child abuse report—and the social worker did, in fact, conduct nine in-person investigations—there was no violation of section 31-105, and no grounds for a claim of negligence per se. On its face, the SAC establishes that DCFS complied with section 31-105.
Appellant cites inapposite case law in support of her position that the social workers response was inadequate. She relies on Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125. In Scott, a child was injured by a caregiver in a foster home, where she was placed by order of the juvenile court. (Id. at p. 136.) A set of regulations applied which "establish requirements for the supervision by county social service agencies of children placed in foster care under the agencies supervision." (Id. at p. 134.) Specifically, the regulations required monthly visits by a DCFS social worker to the childs foster home. (Ibid.) By contrast, Katerina was not ordered into foster care, under DCFS supervision, at the time of her injury. The regulations relied upon by the Scott court do not create a mandatory duty to check each month on a child who remains in parental custody with no juvenile dependency case pending.
The trial court correctly sustained the Countys demurrers on the grounds that DCFS complied with any duty imposed by the emergency protocol of the DSS Manual to investigate a child abuse report.
3. Additional Statutory Grounds Newly Raised On Appeal
In her opposition to the Countys demurrers to the SAC, appellant relied on section 31-105 of the DSS Manual as the basis for her negligence claim. However, she asked for leave to amend her pleading a third time, in the event that the SAC was found to be deficient. The court denied leave to amend. On appeal, appellant asserts a passel of statutes and regulations that were not raised in the trial court. In her view, these newly cited authorities show that the County violated a mandatory duty.
First, appellant relies on general provisions regarding services for children in Welfare and Institutions Code section 16500 et seq. Section 16500 provides that the state "shall establish and support a public system of statewide child welfare services . . ." because "all children are entitled to be safe and free from abuse and neglect." The statutory scheme defines "child welfare services" as public social services directed at protecting and promoting child welfare, including the provision of services to children alleged to be victims of abuse, neglect, or exploitation. (Welf. & Inst. Code, § 16501, subd. (a).)
The public policy goals identified by Welfare and Institutions Code section 16500 et seq. do not create a mandatory duty. "An enactment creates a mandatory duty if it requires a public agency to take a particular action. [Citation.] An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agencys exercise of discretion." (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 639.) The cited portions of the Welfare and Institutions Code do not assist appellants case because they merely identify public policy goals.
Second, appellant points to certain Penal Code provisions, arguing that they provide the requisite mandatory duty that the County failed to fulfill. Penal Code section 11164 et seq. is the "Child Abuse and Neglect Reporting Act," which is intended to "protect children from abuse and neglect." (Pen. Code, § 11164, subd. (b).) Designated individuals who suspect child abuse or neglect are required to report it to law enforcement or to the county welfare department. (Pen. Code, § 11165.9.) Because DCFS is an agency that receives child abuse reports, and in this case conducted nine in-person investigations, no mandatory duty was violated under the Child Abuse and Neglect Reporting Act.
Finally, appellant cites additional sections of the DSS Manual in her brief. One section states, "The social worker investigating the referral shall have in-person contact with all of the children alleged to be abused, neglected or exploited, and at least one adult who has information regarding the allegations." (DSS Manual, § 31-125.2.) The SAC admits that the social worker had at least nine in-person visits following each referral. Because Katerina was a toddler, the only reasonable inference from the allegations is that the social worker spoke to the childs adult caretaker, Mark P., when the investigation was being conducted.
DSS Manual sections 31-110.21 and 31-501.1 require social workers to report nonfamilial child abuse to the appropriate law enforcement agency. This duty arises when the social worker knows of, observes, or reasonably suspects child abuse. (Pen. Code, § 11166, subd. (g).) Here, the SAC demonstrates that DCFS conducted nine in-person investigations, but did not take Katerina into protective custody because the social workers did not observe or suspect child abuse. (Compare Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1183-1184, where a police officer received a report of possible child abuse and conducted no investigation into the charge.) Because the DCFS social workers conducted numerous investigations without finding any reportable child abuse or reason to detain Katerina, the duty to alert law enforcement did not attach. In any event, appellants government tort claim only asserts a failure to investigate; it does not assert a failure to report child abuse to law enforcement. Appellants proposed amendment, asserting that the County failed to report the abuse, is outside the scope of her original claim, and cannot be a part of her lawsuit.
4. Immunity
Appellant has not made out a case in which the County failed to perform a mandatory duty. Even if appellant could identify an investigative duty that DCFS failed to carry out, the County is immune from prosecution.
In Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, the plaintiff argued that the investigative nature of a social workers employment is ministerial and not discretionary. The appellate court rejected this characterization of the social workers role. (Id. at pp. 882-883.) The court wrote, "It is necessary to protect social workers in their vital work from the harassment of civil suits and to prevent any dilution of the protection afforded minors by the dependency provisions of the Welfare and Institutions Code. Therefore, social workers must be absolutely immune from suits alleging the improper investigation of child abuse, removal of a minor from the parental home based upon suspicion of abuse and the instigation of dependency proceedings." (Id. at p. 881.) Because the social worker employees are absolutely immune, the County is similarly immune. (Id. at p. 883. See also Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 287 [affording immunity to a county social worker who allegedly failed to use due care in investigating a child abuse report]; Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 899 [conferring immunity for a social workers negligent investigation of prospective adoptive parents]; Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1208-1214 [conferring immunity on police officers conducting a criminal investigation].)
Thus, assuming that the DCFS social workers failed to use due care in carrying out a duty to investigate reports of child abuse, the social workers are absolutely immune from liability. By extension, the County is also immune. The trial court did not abuse its discretion by denying appellants request to file a third amended complaint, because no claim for negligent failure to adequately investigate a claim of child abuse can be stated against the County.
DISPOSITION
The judgment is affirmed.
We concur:
DOI TODD, J.
CHAVEZ, J.