Opinion
E031835.
7-23-2003
MICHAEL PAYNE, SR., Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent.
Holstein, Taylor, Unitt & Law and Brian C. Unitt for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Joseph Arias and Christopher D. Lockwood for Defendant and Respondent.
Michael Payne, Sr. (plaintiff) appeals from summary judgment in favor of the County of San Bernardino (the County). We affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
The case arises from the death of Michael Payne, Jr. (Minor). Minor was the child of plaintiff and Jennefer Jiminez and was born in September 1997. Plaintiff and Jiminez were never married. In April 1998, Jiminez married Ronald Buccola. Plaintiff and Jiminez had joint custody of Minor, with primary custody to Jiminez. Minor lived with Jiminez and Buccola.
Minor sustained a burn to his hand on or about September 5, 1998. The San Bernardino County Department of Childrens Services (DCS) investigated the burn but concluded it was accidental.
On or about September 16, 1998, Minor sustained a burn to his inner thigh. Plaintiff brought the burn to the attention of the authorities. DCS temporarily placed Minor in plaintiffs custody.
On September 18, 1998, DCS filed a juvenile dependency petition with respect to Minor, based on the September 16 burn. DCS social worker Irene Winter was named as the petitioner. The petition alleged Minors parent or legal guardian had failed to protect him adequately, exposing him to serious physical harm or illness. The petition included as a factual basis for the allegation the fact that an emergency room physician had stated that in his opinion the September 16 burn was the result of abuse to Minor.
A hearing on the petition took place on September 24, 1998. Plaintiff attended the hearing, with his counsel. Also present were Minor and his counsel, Jiminez and her counsel, Winter, and Deputy County Counsel Diane Anderson representing DCS. Anderson moved for dismissal of the petition. There was no objection from any other party. The court granted the motion and dismissed the petition. Minor was returned to the custody of Jiminez and Buccola. Winter closed the case in October 1998.
On November 13, 1998, while at home alone with Buccola, Minor sustained injuries which led to his death shortly thereafter. Buccola pled guilty to voluntary manslaughter in connection with the death.
In May 1999, Winter was dismissed from her employment with DCS, principally based upon her handling of Minors case.
B. Procedural Background
In November 1999, plaintiff sued DCS, claiming negligence. In relevant part, he alleged Winter and Anderson negligently and carelessly conducted themselves in connection with the investigation leading to the dependency petition, and in the prosecution of the petition itself, by failing to obtain and disclose to the court and counsel for the parties all of the relevant facts. More particularly, they failed to disclose the police and medical reports which indicated the September 16, 1998 burn may have been the result of abuse.
The complaint further alleged that, had the juvenile court asserted dependency jurisdiction over Minor, he would have been removed from the custody of Jiminez for at least six months, and Buccola would have been denied access to Minor and the opportunity to abuse him further. As a result of the conduct of Winter and Anderson, however, the petition was dismissed, and Buccola suffocated Minor with a plastic bag on November 13, 1998.
DCS moved for summary judgment. The court granted the motion on several alternative bases. First, it found the tort claim filed by plaintiff pursuant to the California Tort Claims Act (Gov. Code, § 810 et seq.; hereafter Tort Claims Act) did not name the individuals — Winter and Anderson — who were responsible for the alleged tortious conduct, as required by Government Code section 910, subdivision (e). In addition, the court found plaintiff had failed to establish that a special relationship existed between DCS and Minor which supported a duty of care between them as required for tort liability under Government Code section 815.2 . Finally, the court found plaintiff had failed to establish that DCS had violated a mandatory duty imposed on it by a statute or other enactment, as required for liability under Government Code section 815.6.
As we conclude the first ground on which the court granted summary judgment was well taken, we limit our discussion to that issue.
II
DISCUSSION
A. Tort Claim Presentation Requirement
Except for certain types of claims not involved here, the Tort Claims Act requires that any claim for money or damages against a local public entity be presented to the entity before suit may be filed against it. (Gov. Code, §§ 905, 945.4.) "The claim-filing requirements of the Government Code . . . stem from the legislative prerogative to impose conditions as a prerequisite to the commencement of any action against the state for money damages [citation]; they are specific and mandatory regulations which must be strictly complied with. [Citations.]" (Bozaich v. State of California (1973) 32 Cal. App. 3d 688, 697, 108 Cal. Rptr. 392.)
B. Plaintiffs Tort Claim
Prior to bringing this action, plaintiff filed a claim with the County in May 1999, alleging in relevant part:
"On more than one occasion before November 13, 1998, DCS was requested to and did investigate allegations of abuse by Ronald David Buccola against the minor child, Michael Payne, Jr. Further, DCS was requested to and did investigate allegations of neglect by the minors mother, Jennefer Jimenez, as against the minor. DCS uncovered and documented clear evidence of physical abuse and neglect by Buccola and Jimenez as against the minor, Michael Payne, Jr. That DCS[] willfully disregarded the evidence they had discovered and returned the child to the care and custody of Buccola and Jimenez and failed to follow up on the allegations and evidence they had discovered. That on November 13, 1998, in the Fontana home of Jennefer Jimenez, Ronald David Buccola[] suffocated the minor, who was then fourteen months old, with a plastic bag while the minor lay helpless in his crib. The minor died as a result of the injuries sustained. Jennefer Jimenez had neglected the minor by leaving Michael Payne, Jr. in the care and custody of Ronald David Buccola. [P] . . . The names and addresses of the public employees responsible for this incident are presently unknown."
C. Trial Court Ruling
Government Code section 910 requires that a tort claim set forth, among other things, "the name or names of the public employee or employees causing the injury, damage, or loss, if known." (Gov. Code, § 910, subd. (e).) As our previous recitation shows, the public employees alleged in plaintiffs complaint to have caused the dismissal of the dependency petition and, as a consequence, Minors death were DCS social worker Irene Winter and Deputy County Counsel Diane Anderson. However, neither Winter nor Anderson was named in plaintiffs tort claim.
The trial court found the record showed that, before the dependency petition was dismissed, plaintiff had been introduced to Winter and knew Anderson was representing DCS. Although plaintiff claimed he did not know who dismissed the petition, and why, the court found the claim unconvincing in view of the fact that plaintiff was present with his attorney when Anderson moved in open court to dismiss the petition.
Thus, the court concluded: "It can hardly be disputed that plaintiff knew who was there and what they did when he was in court, when they identified themselves and did it. As plaintiff knew Winters [sic] and Andersons identities before he filed the claim, he was required to include their names in the claim. Neither is mentioned, and plaintiff, therefore, may not recover from the County on any claim based on the respondent [sic] superior liability for Winters [sic] or Andersons actions."
D. Plaintiffs Contentions on Appeal
Plaintiff contends he was excused from identifying Winter and Anderson in the tort claim because: he did not know when he filed the claim that it was the negligence of Winter that caused the return of Minor to Jiminez; there is no evidence plaintiff knew Andersons name at the time he presented the claim, and in fact he knew only that DCS had an attorney; plaintiff did not know who made the decisions that led to the dismissal of the dependency petition and the return of Minor to the ultimately lethal environment; though plaintiff knew Winters name, it is reasonable to infer he thought the unnamed attorney had made the decision to dismiss the petition, not the social worker; and Winters supervisors were also negligent in assigning her Minors case and failing to supervise her work, and there is no evidence plaintiff knew the identities of the supervisors or the facts showing they were negligent when he filed his claim.
Based on our review of the record, as did the trial court, we find plaintiffs arguments unconvincing.
E. Analysis
1. General principles
Several principles of law are relevant to our consideration of whether plaintiffs failure to name Winter and Anderson in the tort claim was fatal to his action against DCS. The first is that in order to avoid being barred from proceeding against a public entity, a claimant who has failed to name the responsible employees in his or her tort claim must plead and prove that within the time for filing the claim, he or she "did not know or have reason to know" the identities of the employees. (Williams v. Braslow (1986) 179 Cal. App. 3d 762, 773, 224 Cal. Rptr. 895.)
Second, the fact the public entity may have been aware of, or able to determine, the identities of the responsible employees does not excuse the claimants failure to identify them in his claim. As the Supreme Court has stated, "It is well-settled that claims statutes must be satisfied even in face of the public entitys actual knowledge of the circumstances surrounding the claim." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, 115 Cal. Rptr. 797, 525 P.2d 701; accord, Hall v. City of Los Angeles (1941) 19 Cal.2d 198, 202, 120 P.2d 13 [even though city actually investigated and discovered the place where the accident occurred, plaintiffs action was barred for failure to state place of occurrence in tort claim].)
Third, although only substantial compliance with Government Code section 910 is required, the doctrine of substantial compliance "cannot cure total omission of an essential element from the claim . . . ." (Loehr v. Ventura County Community College Dist. (1983) 147 Cal. App. 3d 1071, 1083, 195 Cal. Rptr. 576.) In Loehr, the court in finding the plaintiff had not substantially complied with Government Code section 910 noted that, among other defects, the claim failed to mention two individuals who were named as defendants in the complaint. (Id. at p. 1083.) Similarly, the Supreme Court in Hall v. City of Los Angeles, supra, 19 Cal.2d 198 found no substantial compliance where, although the claim set forth the plaintiffs identity, the date and cause of the accident, and the plaintiffs injuries and expenses, it did not state the location of the accident. The court stated, "Substantial compliance cannot be predicated upon no compliance." (Id. at p. 202.)
With these principles in mind, we consider whether plaintiffs showing was adequate to overcome his failure to name Winter and Anderson in his tort claim.
2. Plaintiffs knowledge of Winters identity and involvement
Plaintiffs contentions that at the time he filed his claim he did not know Winters conduct had caused the return of Minor to Jiminez and did not know of her involvement in the decision to dismiss the dependency petition are not supported by the record. Plaintiff knew from the outset of the dependency proceeding that Winter had been assigned to the case. He testified at his deposition that when he reported the second burn to the police on September 16, 1998, the officer who took the report called DCS. Winter responded to the police station and introduced herself to plaintiff at that time. Winter confirmed that she interviewed plaintiff and his father at the police station and released Minor to plaintiffs custody. Thus it was clear to plaintiff when the case began that Winter had responsibility for his sons welfare and had the authority to make decisions regarding his placement.
Winters role in the case continued to be demonstrated when she appeared, along with plaintiff, at the two court hearings on the dependency petition. At the final hearing on September 24, 1998, plaintiff was sitting next to his counsel at the counsel table in the front of the courtroom when Anderson moved to dismiss the petition. After the hearing, plaintiff testified, Winter told him he had to return Minor to Jiminez. Plaintiff asked her why. Winter said plaintiff "was just as much a suspect in this case" as Jiminez and Buccola were. She said "they could not determine whether [the burn] happened in [plaintiffs] care or their care, so thats why things transpired the way it did."
The fact plaintiff solicited and received from Winter an explanation of DCSs reasons for dismissing the petition demonstrated he was at least presumptively aware she was involved in the decision. Although plaintiff contended in his statement of undisputed facts that he "had no understanding of the importance of the dismissal," that contention was inconsistent with plaintiffs deposition testimony, in which he stated:
"Q. Were you in favor of . . . dismissing the petition?
"A. No, I wasnt. [P] . . . [P]
"Q. Is that something you did not want to see happen?
"A. Of course. I wanted to — I didnt agree with that at all. I didnt agree with the dismissal." Plainly, plaintiff was well aware of the adverse effect of the dismissal on his efforts to retain custody of his son. In fact, plaintiff confirmed he knew when the petition was dismissed that Minor would not remain in his custody:
"Q. [P] . . . [P] What did you think would happen with the custody of Mickey once the petition was dismissed?
"A. I had no clue. I was told
"Q. Did you believe that he was still going to be with you given what Irene Winter had told you?
"A. No, I didnt."
The admissions during discovery of a party opposing summary judgment are given great weight, and the party cannot create a triable issue sufficient to defeat summary judgment simply by contradicting the admissions. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 961.) Plaintiffs deposition testimony as recited above conclusively shows that, by September 24, 1998, he knew Winter was the responsible social worker on Minors case, had been told by Winter that DCS had decided to dismiss the petition because it could not determine which parent was responsible for Minors injury, and understood that the dismissal of the petition meant he had to return Minor to the custody of Jiminez and Buccola. That knowledge was enough to put plaintiff on notice of Winters involvement in the dismissal and, hence, of the need to name her as an employee responsible for the eventual injury to Minor. Plaintiff could not create an issue for trial merely by contending, in the face of his prior testimony, that he lacked sufficient knowledge of Winters involvement. The trial court properly ruled plaintiffs failure to name Winter did not substantially comply with Government Code section 910.
3. Plaintiffs knowledge of Andersons identity and involvement
Anderson represented DCS at the September 24, 1998, hearing at which the dependency petition was dismissed and which plaintiff attended with his attorney. Anderson made clear her connection with DCS and Winter when she announced her appearance in open court: "Diane Anderson for the Department. The social worker Irene Winter is present." As stated previously, plaintiff was sitting next to his counsel at the counsel table in the front of the courtroom when Anderson moved to dismiss the petition. He thus could not have been unaware of her role in the dismissal.
DCS asserted in its statement of undisputed facts that plaintiff "knew who Irene Winter and Diane Anderson were and what roles they had in the decision to request dismissal of the juvenile court petition." Plaintiff disputed that assertion on the basis that he "was not aware of the specific reasons for the dismissal and believed that his own attorney had agreed to dismiss the petition. Michael Payne, Sr. was not aware of whether Irene Winters [sic] was represented by counsel. Michael Payne, Sr. had no understanding of the importance of the dismissal. Michael Payne, Sr. did not know that there was a failure on the part of Irene Winters [sic] to provide documents to the court and he did not know that it was Irene Winters [sic] decision to dismiss the petition."
Notably, nothing in plaintiffs response refuted the assertion that he knew who Anderson was and what her role had been in the dismissal of the petition. Plaintiffs assertion that he was not aware of the reasons for the dismissal was inconsistent with his admission, discussed above, that Winter told him after the hearing he had to give Minor back to Jiminez because DCS could not determine who had custody of him when the burn occurred. Plaintiffs assertion that he thought his attorney had agreed to dismiss the petition had no relevance to whether he was aware of Andersons role in the dismissal. Regardless of his attorneys position, plaintiff was well aware that Anderson, not plaintiffs attorney, had requested the dismissal, since he was present when she did so in open court. Plaintiffs assertion that he did not understand the importance of the dismissal is refuted by his deposition testimony as discussed previously. Plaintiffs remaining assertion, that he did not know Winter had failed to provide documents to the court and that it was her decision to dismiss the petition, had nothing to do with whether he was aware of Andersons role in the dismissal.
A nonmoving partys failure to dispute the assertion of a moving party in its statement of undisputed facts warrants a conclusion that the moving partys evidence is not disputed. (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 842.) Plaintiffs failure to respond to DCSs assertion that he knew Andersons identity and role in the case, in conjunction with the evidence establishing that plaintiff was present when Anderson appeared in court, indicated her connection with DCS and Winter, and asked the court to dismiss the petition, justified the court in concluding plaintiff was aware of Andersons identity as a responsible employee and should have named her in his tort claim.
4. Identity of Winters supervisors
We turn finally to plaintiffs remaining contention, that he could not name the responsible employees in his tort claim because some of them were Winters supervisors and there is no evidence he knew the names of the supervisors. Even assuming plaintiff did not know who Winters supervisors were, his action was not based on the supervisors assigning of the case to Winter or their failure to supervise her work as he now contends. The charging allegations of the complaint stated:
Winter and Anderson negligently conducted themselves in connection with the September 24, 1998, hearing by failing to disclose relevant facts to the court or counsel;
Winter failed to interview Buccola, and interfered with the interview conducted by the Fontana Police Department;
Winter failed to attach the police and medical reports to the petition, provide them to the court, or allege accurately their contents;
Winter failed to inform the court or Anderson of the contents of the reports; and Anderson failed to obtain the reports, learn of their contents, or otherwise acquaint herself with the facts showing Minor had been abused by Buccola or Jiminez before agreeing to Winters recommendation to dismiss the petition.
Absent from these allegations is any claim that Winters supervisors negligently assigned her the case or failed to supervise her work. "A party cannot successfully resist summary judgment on a theory not pleaded." (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541; accord, 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal. App. 3d 1, 18, 272 Cal. Rptr. 227.) Similarly, plaintiff cannot obtain reversal based on a contention he did not know the names of the supervisors when he filed his tort claim, without an allegation in the complaint that the supervisors were responsible for his injury.
The complaint does refer to one of the supervisors at one point, where it alleges that " . . . Winters [sic] supervisor actually became aware of the contents of the police and medical reports," but DCS breached its duty to protect Minor by not filing a supplemental or amended petition, or refiling the petition it had improperly allowed to be dismissed. However, that allegation cannot serve as a basis for overturning the summary judgment, for several reasons.
First, a complaint against a public entity cannot allege a factual basis for recovery which is not "fairly reflected" in the plaintiffs tort claim. (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal. App. 3d 431, 434, 253 Cal. Rptr. 587.) Here, plaintiffs tort claim failed to allege as a basis for liability that DCS failed to file a supplemental or amended petition or refile the original petition. As set forth ante, the tort claim alleged only that DCS willfully disregarded the evidence of abuse and neglect, returned Minor to Buccola and Jimenez, and failed to follow up on the evidence it had discovered. There was no reference to the dismissal of the original petition, let alone to the possibility of filing a subsequent petition.
Moreover, even if plaintiff had adequately preserved for litigation a claim that Winters supervisor negligently failed to file a supplemental or amended petition, or refile the original petition, such an allegation would have been insufficient on its face. Case law holds unequivocally that a social worker, and the entity employing him or her, are absolutely immune from liability for conduct in the instigation or prosecution of a juvenile dependency proceeding. In Jenkins v. County of Orange (1989) 212 Cal. App. 3d 278, 260 Cal. Rptr. 645, the court held a social worker and county could not be sued for alleged negligence in failing to consider and divulge to the court facts showing that the allegations leading to the filing of a dependency petition, which was later dismissed, were false. The court relied on Government Code section 821.6, which provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." The court explained: "Weighing and presenting evidence are prosecutorial functions. As such, these acts are within the ambit of instituting or prosecuting any judicial or administrative proceeding within the scope of [the social workers] employment . . . . [Citation.]" (Jenkins at p. 284.)
In Alicia T. v. County of Los Angeles (1990) 222 Cal. App. 3d 869, 271 Cal. Rptr. 513, the court similarly held that social workers, and the county employing them, "enjoy absolute immunity from liability arising out of investigation of child abuse and instigation of dependency proceedings . . . ." (Id. at p. 877.) The court agreed with the court in Jenkins that the workers and county were immune under Government Code section 821.6. It also held they were immune under Government Code section 820.2, which provides: "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." (Alicia T. at p. 883.)
If the negligence of a social worker in investigating and instigating a dependency proceeding is subject to absolute immunity, so must be any alleged negligence in not re-instigating a proceeding that has been dismissed. The same discretionary determinations that underlie the decision to instigate a proceeding also underlie a decision not to do so. Consequently, plaintiff had no legitimate claim against Winters supervisors for not reinstating the dependency proceeding in this case. He therefore cannot rely upon his alleged ignorance of the supervisors identities as an excuse for not naming in his tort claim the employees allegedly responsible for his loss.
F. Conclusion
Plaintiff had personal contact with Winter and personally attended the hearing at which Anderson moved to dismiss the petition. Even if he was unfamiliar with dependency procedures and the role of social workers and County Counsel, he was represented by counsel throughout the proceeding and easily could have obtained from counsel, well before he filed his tort claim, enough information to understand Winters and Andersons role in the events that led to Minors return to the custody of Jiminez. There was no basis in the record on which to conclude plaintiff "did not know or have reason to know" the names of the employees responsible for his injury when he filed his tort claim. His failure to identify the employees in the claim did not substantially comply with Government Code section 910, subdivision (e) and precludes his current action. The court properly granted summary judgment.
III
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: McKINSTER, Acting J., GAUT, J. --------------- Notes: The requirement of substantial compliance can be waived. Government Code section 910.8 provides that if a public entity believes a claim presented to it fails to comply substantially with the requirements of sections 910, the entity may notify the claimant of the insufficiency. Government Code section 911 provides that any defense as to the sufficiency of a claim based upon a defect or omission is waived by failure to give notice of insufficiency as provided in section 910.8. Plaintiff has not asserted that DCS, by not giving him notice pursuant to section 910.8, waived the alleged insufficiency in his claim. Even if plaintiff had made that argument, it does not appear section 910.8 would apply here. Section 910, subdivision (e) only requires the claimant to name the responsible employees "if known." The claim asserted plaintiff did not know the employees names. Since the claim therefore did not appear insufficient on its face, there would have been no reason at the time it was filed for DCS to have given notice of insufficiency under section 910.8.