Karen LOEBLICH et al., Plaintiffs and Appellants, v. CITY OF DAVIS et al., Defendants and Respondents.
Plaintiffs appeal from a judgment dismissing their second amended complaint entered after the trial court sustained general demurrers without leave to amend. The court ruled defendants were absolutely immune from civil liability pursuant to the Child Abuse and Neglect Reporting Act. (Pen.Code, §§ 11164 et seq.) We shall conclude this was error. However, because the demurrers as to two of the four causes of action were properly sustainable on alternate grounds, we shall reverse only as to the remaining two causes of action.
On appeal from a judgment of dismissal after the sustaining of a general demurrer we consider as true all material, well-pled allegations in the complaint, including all matters which may be judicially noticed but excluding contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) “[W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)
Plaintiffs are Karen Loeblich (Loeblich), her husband George McClelland (McClelland), and their minor children Anastassia Loeblich (Anastassia) and Alekxandra Loeblich (Alekxandra). Defendants are Greengate Center for Exceptional Children (Greengate), a Greengate teacher, Janet Wardlow (Wardlow), and a Greengate Nurse, Joanne Clark (Clark) (hereafter collectively the Greengate defendants), the City of Davis (Davis), a Davis police officer, Tammy Yarnell (Yarnell), Yolo County, and three Yolo County social workers, Nancy Zebell (Zebell), Jean McGrath (McGrath), and Diana White (White) (hereafter collectively the City and County defendants).
As alleged in the second amended complaint, White, Zebell, Yarnell, Wardlow, and Clark “seized” and “falsely imprisoned” Anastassia at Greengate on May 16, 1986, following receipt of information from a Greengate bus driver who overheard Anastassia make a remark of a sexual nature.1 Thereafter, Anastassia was subjected at Greengate to “unwarranted vaginal exams” by persons who were “unqualified, unauthorized, or otherwise competent [sic] to conduct such exams” and to repeated questioning. She was also examined at the University of California Medical Center where she was found “not to have any clinical signs of molestation.” Nevertheless, Anastassia was held at the offices of Child Protective Services for the next 11 hours.
On this same day, Yarnell telephoned Loeblich and informed her that Anastassia had been molested by McClelland, McClelland had confessed to the molestation, and Anastassia “had a bloody vagina, [and] distended anus with no bowel control” as a result of “repeated and continued sexual abuse․” At the time, Yarnell either knew these claims to be false or had no reason to believe they were true. Loeblich was told she could not see her daughter.
Loeblich was later directed to Child Protective Services where Anastassia was then being held. After she arrived Zebell “reiterated the allegations made by [ ] Yarnell.” These allegations were heard by University of California Police Officer John Jones and others. At the same time, Alekxandra, who had accompanied her mother, was seized by Zebell, White, and McGrath and held in excess of two hours. Although Loeblich was eventually informed of the University of California Medical Center test results, Anastassia and Alekxandra were not relinquished to her custody until Loeblich agreed to sign a document entitled “Family Maintenance/Reunification Plan” which identified McClelland as a “child molester” and forbade the minors to have contact with him. The Family Maintenance/Reunification Plan was seen by “other persons who reside in and around Davis, California.” The investigation was dropped approximately one week later.
Plaintiffs' complaint was filed on November 3, 1986, alleging false imprisonment, libel, slander, and intentional infliction of emotional distress. After defendants successfully demurred to the original and first amended complaints on the basis of uncertainty, plaintiffs filed a second amended complaint (hereafter the complaint). Defendants again demurred on the grounds of uncertainty as well as immunity under the Child Abuse and Neglect Reporting Act (Pen.Code, §§ 11164 et seq. [the Act] ). The court sustained the demurrers without leave to amend on the basis of “the absolute immunity conferred upon defendants under [the Act].” Judgment of dismissal was entered and this appeal followed.
Enacted in 1980, the Act was intended to address the state's strong interest in preventing child abuse by overcoming the difficulty of detection. It contains a comprehensive reporting scheme requiring persons in positions where abuse may more likely be detected to report promptly any known or suspected instances of child abuse. As it appeared in 1986 when the instant conduct occurred, Penal Code section 11166 provided in relevant part: “․ any child care custodian, medical practitioner, nonmedical practitioner, or employee of a child protective agency who has knowledge of or observes a child in his or her professional capacity or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident․” (Stats.1984, ch. 1423, § 9, p. 4999.)
Correlative to this reporting requirement, the Act provides absolute immunity from civil or criminal liability to mandated reporters. As it existed in 1986, Penal Code section 11172, subdivision (a) provided in relevant part: “No child care custodian, medical practitioner, nonmedical practitioner, employee of a child protective agency, or commercial film and photographic print processor who reports a known or suspected instance of child abuse shall be civilly or criminally liable for any report required or authorized by this article․” (Stats.1985, ch. 1598, § 9, p. 5940.)
Before addressing the question whether the Act provides immunity for the conduct alleged, we must first consider whether the Act is even relevant to the matters set forth in the complaint. The complaint itself does not allege any relationship between the Act and the conduct alleged. Nevertheless, the trial court discerned such a relationship and plaintiffs characterize the issue on appeal as “whether that immunity [as set forth in the Act] extends to the actions and conduct of all defendants as alleged in the complaint, which are separate from their act of reporting a suspected case of child abuse and where the injuries as alleged are unrelated to the actual report.” (Emphasis added.) In effect, plaintiffs concede the Act is of general relevance to this matter but dispute that it applies to the specific conduct alleged. The complaint alleges all individual defendants were acting within the course and scope of their employment. Since such employment status imposed upon these defendants a mandated duty to report, the Act is clearly relevant to our analysis.2
Plaintiffs first contend the Act does not apply to the conduct alleged because a prerequisite is a report, and none is alleged in the complaint. We reject this argument for two reasons. First, a logical inference from the allegations of the complaint is that at least one report was made. The complaint alleges a police officer and several social workers became involved in the investigation of suspected child abuse sometime after information suggestive of child abuse came to the attention of Greengate employees. It is logical to assume at least one of these Greengate employees reported the matter to the police, the Department of Social Services, or both. Moreover, plaintiffs concede as much in their brief (see fn. 1 ante, p. 399). Second, the Act requires a telephone report as soon “as practically possible” after discovery of suspected child abuse and a written report within 36 hours. (Pen.Code, § 11166.) Absent contrary allegations not in the complaint, we presume the proper performance of official duty. (Evid.Code, § 664; Phillips v. Seely (1974) 43 Cal.App.3d 104, 119–120, 117 Cal.Rptr. 863.)
Plaintiffs next contend the conduct alleged goes beyond that protected by the Act. With reference to Penal Code section 11172, which provides immunity “for any report required or authorized by [the Act] ․,” plaintiffs contend the conduct alleged here goes beyond the reporting of suspected child abuse.
Relying on two recent California appellate court decisions broadly interpreting the immunity afforded by the Act, defendants counter that immunity extends beyond mere reporting to include any investigative activity preparatory to reporting. In Storch v. Silverman (1986) 186 Cal.App.3d 671, 231 Cal.Rptr. 27, the court answered affirmatively the question whether the Act provided immunity “for those mandated reporters who are involved in the identification of an instance of child abuse but do not personally report it to the authorities[.]” (Id. at p. 681, 231 Cal.Rptr. 27.) Arguably this implies immunity for other than mere reporting. The following year, in Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 242 Cal.Rptr. 312, the court held the Act provides absolute immunity not only for reporting but also “for conduct giving rise to the obligation to report, such as the collection of data, or the observation, examination, or treatment of the suspected victim or perpetrator of child abuse, performed in a professional capacity or within the scope of employment․” (Id. at p. 1223, 242 Cal.Rptr. 312.)
We do not agree that the Act is reasonably susceptible to the broad interpretation suggested by Storch and Krikorian. Initially, we note those expansive interpretations were dicta, unnecessary to the holdings in those cases. In Storch the complaint alleged two causes of action, both of which were premised upon negligent reporting of suspected child abuse. (Storch v. Silverman, supra, 186 Cal.App.3d at pp. 674, 681, 231 Cal.Rptr. 27.) Since it was alleged all defendants either submitted a report or had one submitted on their behalf, it was unnecessary for the court to extend the immunity of the Act beyond reporting.
In Krikorian, the defendant preschool owner, who was accused of child abuse, cross-complained against a psychologist hired by the childrens' parents to investigate the alleged abuse. The cross-complaint alleged, inter alia, professional negligence and intentional infliction of emotional distress in connection with the psychologist's investigation. (Krikorian v. Barry, supra, 196 Cal.App.3d at p. 1214, 242 Cal.Rptr. 312.) The trial court sustained demurrers to these two causes of action without leave to amend. (Ibid.) The appellate court affirmed, concluding immunity under the Act extends to investigative activity. The conclusion was unnecessary. Defendant had no standing to assert professional negligence on behalf of the children, and the only claimed damage was the loss of the defendant's license which was a direct result of a child abuse report from the psychologist to the California Department of Social Services. (Ibid.) Thus, it was enough to find immunity for this report to sustain the demurrers.
We do not find the language of Penal Code section 11172 susceptible to the broad interpretation urged by defendants. Words used in a statute should normally be given the meaning ascribed to them in ordinary usage. (In re Rojas (1979) 23 Cal.3d 152, 155, 155 Cal.Rptr. 649, 588 P.2d 789; Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155–156, 137 Cal.Rptr. 154, 561 P.2d 244.) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature․” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299, citations omitted.) However, the meaning of a statute should not be determined from an isolated word or phrase. “[T]he words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. An interpretation that renders related provisions nugatory must be avoided; each sentence must be read not in isolation but in the light of the statutory scheme; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed.” (Lungren, supra, at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299, citations omitted.)
Penal Code section 11172, subdivision (a), provides immunity “for any report required or authorized by this article․” In ordinary usage, the word “report” in its noun form refers to “an account or statement describing in detail an event, situation, or the like․” (Random House, Dict. of the Eng. Lang. (2d ed. 1987) p. 1634.) Thus, by its plain and unambiguous terms, the immunity conferred by the Act is limited to injury caused by the act of reporting suspected child abuse.
This conclusion is supported by an examination of other provisions of the Act. In addition to immunity for reporting, Penal Code section 11172, subdivision (a) provides: “No person required to make a report pursuant to this article, nor any person taking photographs at his or her direction, shall incur any civil or criminal liability for taking photographs of a suspected victim of child abuse, or causing photographs to be taken of a suspected victim of child abuse, without parental consent, or for disseminating the photographs with the reports required by this article.” The Act also immunizes any mandated reporter who, “pursuant to a request from a child protective agency, provides the requesting agency with access to the victim of a known or suspected instance of child abuse․” (Pen.Code, § 11172, subd. (b).)
To read the reporting immunity conferred by the Act broadly to include all investigative or other preparatory activity associated with reporting would render superfluous the foregoing provisions which expressly relate to specific types of activity associated with reporting. This is to be avoided whenever possible. (See People v. Woodhead (1987) 43 Cal.3d 1002, 1010, 239 Cal.Rptr. 656, 741 P.2d 154; People v. Craft (1986) 41 Cal.3d 554, 561, 224 Cal.Rptr. 626, 715 P.2d 585.) Thus, despite strong policy arguments for extending immunity to investigative activity generally, it is clear that beyond the act of reporting, the Legislature chose to protect only the related incidental conduct specifically described in the statute.
Turning to the complaint here, we note the injury alleged, unlike those in Storch and Krikorian, did not flow from the reporting of suspected child abuse. Injury to Anastassia is alleged to have resulted from repeated questioning, unwarranted vaginal exams by unqualified individuals and involuntary separation from her parents for an extended period, all of which was arguably part of an investigation preparatory to a report and not a direct result of it. Similarly, Alekxandra's injury was allegedly caused by her being separated involuntarily from her parents for two hours, again arguably for the purpose of investigation and preparatory to a report. As to Loeblich and McClelland, they allegedly suffered emotional distress by being lied to and deprived of contact with their children. McClelland was also allegedly defamed. Again, all of this was arguably in connection with an investigation and not a direct result of a report required by the Act. Therefore, defendants are not entitled to the absolute immunity of the Act as to the matters alleged, and the demurrers were improperly sustained on that basis.3
Notwithstanding the error in finding immunity under the Act, defendants' demurrers may still have been properly sustained if another, supportable ground exists. (Williams v. State of California (1976) 62 Cal.App.3d 960, 966, 133 Cal.Rptr. 539.) “[I]t is the validity of the court's action in sustaining the demurrer which is reviewable and not the court's statement of reasons for its action.” (Franchise Tax Board v. Firestone Tire & Rubber Co. (1978) 87 Cal.App.3d 878, 883, 151 Cal.Rptr. 460.)
The complaint states four causes of action: false imprisonment, libel, slander, and intentional infliction of emotional distress. As to the false imprisonment claim, the demurrers of the City and County defendants also claimed immunity under Government Code sections 820.2 and 821.6.
Government Code section 820.2 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.” The City and County defendants contend the conduct alleged was within their discretionary authority and was therefore immune.
Whether or not a public employee is immune from liability under Government Code section 820.2 often depends upon whether the conduct in question is “discretionary” or “ministerial.” (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 260, 74 Cal.Rptr. 389, 449 P.2d 453.) However, the bare classification of conduct as “discretionary” will not necessarily result in immunity if injury results not from the exercise of discretion but from negligence or other tortious conduct in performing an act after having made the discretionary decision to act. (Id. at p. 261, 74 Cal.Rptr. 389, 449 P.2d 453.) For example, a police officer's decision whether to investigate a stalled vehicle is discretionary and immune, but negligence in performing such investigation after deciding to do so is ministerial and not immune. (See Mann v. State (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82.)
The conduct which forms the basis of the complaint here clearly falls within the latter category of ministerial acts for which there is no immunity. Plaintiffs do not challenge the decision to undertake an investigation or report suspicions. The complaint challenges the way in which the investigation was done. Plaintiffs allege tortious conduct following the discretionary decision to investigate. Immunity under Government Code section 820.2 is therefore precluded.
Immunity under Government Code section 821.6 is also precluded. That section 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.” City and County defendants argue the first cause of action actually alleges malicious prosecution rather than false imprisonment. Government Code section 821.6 provides immunity for malicious prosecution but not for false imprisonment. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719, 117 Cal.Rptr. 241, 527 P.2d 865; Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 604–605, 199 Cal.Rptr. 644; Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, 585–586, 175 Cal.Rptr. 395.)
Malicious prosecution requires the arrest or prosecution of another pursuant to lawful legal process. (See Scannell v. County of Riverside, supra, 152 Cal.App.3d at pp. 607–608, 199 Cal.Rptr. 644; Jackson v. City of San Diego, supra, 121 Cal.App.3d at p. 585, 175 Cal.Rptr. 395.) According to the complaint, detention of the minors was not pursuant to any process, lawful or otherwise. Thus, contrary to defendants' claim, the complaint at most alleges false imprisonment, which is not immunized by Government Code section 821.6.4
The City and County defendants also claim immunity by virtue of Civil Code section 47, subdivision 2 which protects any statement made “[i]n any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law․” (Emphasis added.) This privilege is absolute and unaffected by malice. (Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 924, 148 Cal.Rptr. 242.)
“The descriptive statutory phrase ‘in any other official proceeding authorized by law’ has been broadly interpreted to include those proceedings which resemble judicial and legislative proceedings such as administrative boards and quasi-judicial and quasi-legislative proceedings. In order that the privilege apply, it is unnecessary that the defamatory matter be relevant or material to an issue before the tribunal but need only have some proper connection or relation to the proceeding and in achieving its objectives. The privilege embraces preliminary conversations attendant upon such proceeding so long as they are in some way related to or connected to the pending or contemplated action.” (Tiedemann v. Superior Court, supra, 83 Cal.App.3d at pp. 924–925, 148 Cal.Rptr. 242, citations omitted.)
The privilege of Civil Code section 47, subdivision 2 has been held to apply to statements made preparatory to or during investigations by those authorized to do so. (See Imig v. Ferrar (1977) 70 Cal.App.3d 48, 138 Cal.Rptr. 540 [investigation of police misconduct]; Martin v. Kearney (1975) 51 Cal.App.3d 309, 124 Cal.Rptr. 281 [investigation by high school principal of complaint against teacher]; King v. Borges (1972) 28 Cal.App.3d 27, 104 Cal.Rptr. 414 [investigation by real estate board relating to discipline of licensee]; Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 100 Cal.Rptr. 656 [investigation preparatory to a hospital district hearing].) Actions taken by social services personnel in the protection of children from abuse have been held to be quasi-judicial in nature. (See Mazor v. Shelton (N.D.Cal.1986) 637 F.Supp. 330, 334.) Likewise, action taken by police officers in the investigation of suspected crime is an official proceeding within the meaning of Civil Code section 47, subdivision 2. (Green v. Cortez (1984) 151 Cal.App.3d 1068, 1073, 199 Cal.Rptr. 221.)
The complaint alleges statements made both orally and in a written Family Maintenance/Reunification Plan regarding allegations of child abuse. These statements were made by a police officer, Yarnell, and by social workers during the course of their investigation. Because these individuals were authorized so to investigate, as preliminary to possible criminal actions or dependent child proceedings, their statements were absolutely privileged. And because liability of Davis and Yolo County is necessarily premised on liability of these individuals, such privilege also inures to their benefit.
On the basis of the foregoing privilege, any theory of liability premised upon the alleged defamatory statements of the police officer or social workers is barred. (Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 390–391, 182 Cal.Rptr. 438.) This would include the second and third causes of action, for libel and slander.5 It would not, however, include the causes of action for false imprisonment and intentional infliction of emotional distress. In addition to the allegedly defamatory but privileged communications, these causes of action are based on the unauthorized physical examinations and repeated questioning of Anastassia, holding of the minors against their will, and separation of the minors from their parents. Thus, the court properly sustained demurrers only to the second and third causes of action alleging defamation.
“When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment ․ [t]he burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58, citations omitted.) Plaintiffs have had three attempts to state claims. In their demurrers the City and County defendants challenged the libel and slander claims on the basis of Civil Code section 47, subdivision 2 immunity, yet plaintiffs have failed to demonstrate how the complaint might be further amended to state valid defamation claims. Because of the absolute immunity conferred by Civil Code section 47, subdivision 2, we conclude it is not reasonably probable these counts could be so amended. The court did not abuse discretion in sustaining demurrers to the second and third causes of action without leave to amend.
The judgment of dismissal is reversed with respect to the first and fourth causes of action and in all other respects is affirmed. The matter is remanded to the trial court for further proceedings in accordance with this opinion. Each party will bear its own costs.
1. Although the second amended complaint makes no mention of the information received from the bus driver, the trial court took judicial notice of the Department of Social Services file in connection with the hearing on demurrer. Even though that file is not part of the record before us, the parties agree this controversy was initiated when, according to plaintiffs' brief, the bus driver “overheard a remark of a sexual nature by [Anastassia];” this remark was reported to Greengate school authorities “who in turn reported the matter to the Yolo County Department of Social Services and the Davis Police Department.” Presumably this information was contained in the Department of Social Services file. At any rate, we accept the parties' agreement on this point for purposes of appeal.
2. At the time of this incident, mandated reporters under the Act were enumerated in section 11166, subdivision (a), as “any child care custodian, medical practitioner, nonmedical practitioner, or employee of a child protective agency․” (Stats.1984, ch. 1423, § 9, p. 4999.) Child care custodian was defined as “a teacher, administrative officer, supervisor of child welfare and attendance, or certified pupil personnel employee of any public or private school․” (Former § 11165, subd. (h) [Stats.1985, ch. 1528, § 2.5, p. 5620], now § 11165.7, subd. (a).) This includes Wardlow, a teacher. Medical practitioner was defined as “a physician and surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, or any other person who is currently licensed under Division 2 (commencing with Section 500) of the Business and Professions Code․” (Former § 11165, subd. (i) [Stats.1985, ch. 1528, § 2.5, p. 5620], now § 11165.8.) This includes Clark, a nurse. Child protective agency was defined as “a police or sheriff's department, a county probation department, or a county welfare department.” (Former § 11165, subd. (k) [Stats.1985, ch. 1528, § 2.5, p. 5620], now § 11165.9.) This includes Yarnell, an employee of a police department. And, absent a contrary allegation, we presume the term “social worker” as used in the complaint is intended to mean an employee of a welfare department, which includes Zebell, McGrath, and White. Plaintiffs do not dispute that the individual defendants are all mandated reporters within the Act.
3. In so concluding we do not imply that none of the conduct of the defendants was protected. For example, Wardlow and Clark would be immune for any injury caused by their allowing the other defendants access to Anastassia for purposes of investigation. (Pen.Code, § 11172, subd. (b).) In addition, all defendants would be immune for injury caused by communication of their suspicions to third parties in the form of a report, as required by the Act. (Pen.Code, § 11172, subd. (a).) However, because this matter comes to us after sustaining of general demurrers without leave to amend, we need only find that some conduct is alleged which is not subject to immunity.
4. This conclusion is also consistent with Government Code section 820.4 which provides: “A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.” To afford immunity for false imprisonment under Government Code section 821.6 would be inconsistent with Government Code section 820.4, which specifically excludes it.
5. The complaint does not allege any defamatory statements by the Greengate defendants. Undoubtedly for that reason, they did not demur on the basis of Civil Code section 47, subdivision 2.
PUGLIA, Presiding Justice.
SIMS and MARLER, JJ., concur.