Reset A A Font size: Print

Court of Appeal, Second District, Division 5, California.

Ina Mae JOHNSON, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 30361.

Decided: January 25, 1968

Fizzolio & Fizzolio and Albert Vieri, North Hollywood, for appellant. Thomas c. Lynch, Atty. Gen., Robert H. O'Brien, Deputy Atty. Gen., for respondent.

For Opinion on Hearing, See 73 Cal.Rptr. 240, 447 P.2d 352.

Plaintiff appeals from a summary judgment in favor of defendant.

In her complaint plaintiff alleges that the Youth Authority requested her and her husband to provide a foster home for a certain boy.   She does not allege that she agreed to the placement, but apparently she did because on September 13, 1963, the boy was so placed.   The Youth Authority is alleged to have been negligent in that it knew that the boy had homicidal tendencies and a background of violence and cruelty towards both animals and humans, but failed to inform her of those facts.   Five days later the boy assaulted plaintiff with a butcher knife while she was asleep.

After issue was joined the state filed a motion for summary judgment supported by the declaration of one William Baer.   It is set forth in full in the footnote.1

Plaintiff filed a declaration in opposition to the motion, but none of the allegations therein are material to the only issue on this appeal.

That issues is whether or not the negligent failure of Mr. Baer to inform plaintiff of the boy's tendencies comes within the immunity for discretionary acts or omissions granted by section 820.2 2 of the Government Code.   If that question can be answered in the affirmative we need not concern ourselves with the further question whether the defendant is also protected by the more specific immunity described in section 845.8.3

 It should be noted that the State of California is the only defendant herein.   The immunity discussed runs in favor of public employees, rather than the state.   Nevertheless, public entities are indirectly protected by section 815.2(b) which provides that the entity is not liable if the employee is immune.

To get one matter out of the way:  although the state argues that even if it were a private entity it would not be liable, we assume at least for the purpose of this decision that cases such as Poncher v. Brackett, 246 Cal.App.2d 769, 55 Cal.Rptr. 59 and Ellis v. D'Angelo, 116 Cal.App.2d 310, 317, 253 P.2d 675 make that position untenable.

 The question then becomes very simply whether the failure to reveal the boy's tendencies is clothed with immunity.   Plaintiff argues that the giving of a warning was a ministerial act.   The problem, however, is not whether the act which was wrongfully omitted is ministerial.   What we must look to is the decision whether or not to perform the act.4  If that decision can be said to be discretionary, the immunity applies.  (Sava v. Fuller, 249 Cal.App.2d 281, 290 57 Cal.Rptr. 312.)   Thus, for example, in Ne Casek v. City of Los Angeles, 233 Cal.App.2d 131, 43 Cal.Rptr. 294 the court held that immunity applied to the decision of two police officers not to use certain restraints on two persons whom they had arrested and who escaped while handcuffed to each other.   There too it would have been a ministerial act to use another pair of handcuffs, but the question that the court asked itself was whether or not the policy underlying the doctrine of discretionary immunity would be served by making the decision whether or not to use additional restraints, subject to judicial review.5

The introductory section of the chapter of the Welfare and Institutions Code which establishes the Youth Authority reads as follows: “The purpose of this chapter is to protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses.   To this end it is the intent of the Legislature that the chapter be liberally interpreted in conformity with its declared purpose.”  (Welf. & Inst. Code § 1700.)

Section 1766 of the same code specifically permits the Youth Authority to parole persons committed to it.  (See also Welf. & Inst. Code §§ 1002, 1176).   Obviously the placement of parolees in foster homes is part and parcel of the rehabilitation process envisioned by the Legislature and, in turn, the giving of information concerning the parolee to prospective foster parents is an integral part of the placement.   Even if it is only incidental and collateral to the main purpose of rehabilitation, the decision whether or not to make certain disclosures to the foster parent is protected by discretionary immunity if the larger activity in the course of which such a decision is made, is protected.  (Lipman v. Brisbane Elementary Sch. Dist., 55 Cal.2d 224, 233, 11 Cal.Rptr. 97, 359 P.2d 465;  White v. Towers, 37 Cal.2d 727, 733, 235 P.2d 209, 28 A.L.R.2d 636).

 We do not believe that it can be questioned that the decision to parole a particular youth and the selection of the foster home are immune decisions.   It follows that a decision not to inform a prospective foster parent or certain tendencies of the ward, must also be sheltered by the immunity.

 We may assume that the Youth Authority could live with a rule which requires it to disclose such known facts about the parolee's past life as would indicate that he might murder the prospective foster parents.   Yet it is apparent that if a court, today, announces such a rule, the decision would merely be a foot in the door for a far more sweeping rule of compulsory disclosure.6  If homicidal tendencies must be disclosed, it would be impossible to draw the line between that particular trait and others which might be of interest to the prospective foster parent.   Every decision to a parole and place in a home would become a possible lawsuit.7

Plaintiff relies on Morgan v. County of Yuba, 230 Cal.App.2d 938, 942, 41 Cal.Rptr. 508.   In Morgan a deputy sheriff had expressly promised to warn plaintiffs immediately if one Ashby was released on bail.   Ashby was released, no warning was given and he killed plaintiff's decedent, just as he had threatened to do.   The Court of appeal held that a cause of action was stated.

Morgan rests entirely on the failure to carry out an express promise and has been so construed by the Supreme Court in Heieck and Moran v. City of Modesto, 64 Cal.2d 229, 234, 49 Cal.Rptr. 377, 411 P.2d 105.   There was no comparable promise in this case.

The judgment is affirmed.


1.   “I, WILLIAM BAER, declare and state:  That I am a duly authorized Parole Agent of the Department of Youth Authority, State of California, with offices at 14538 Friar Street, Van Nuys, California.“On June 22, 1963 [Gary] was paroled by the California Youth Authority for placement.  (See Exhibit 1 attached hereto which is incorporated by reference into this declaration as if fully set forth.)“One of my functions as a parole agent involves finding suitable foster homes for children.   The names of Ina Mae Johnson and Floyd N. Johnson were made available to me by a friend of theirs who knew a parolee, not [Gary], who needed a foster home.“I contacted the Johnson and interviewed them about taking a teen-age foster child.   They were referred to the Los Angeles County Bureau of Licensing and were subsequently approved to board a teen-age boy.   The above mentioned parolee was not paced with the Johnsons because relatives were found who took him.   Mrs. Johnson was contacted by me on September 12, 1963, and the “placing of [Gary] was discussed with her.   She agreed to have Gary placed with her and he was so placed on September 13, 1963.  * * * ”

FN2. § 820.2 “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.”.  FN2. § 820.2 “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.”

3.   § 845.8 “Neither a public entity nor a public employee is liable for:“(a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.“(b) Any injury caused by an escaping or escaped prisoner.”

4.   It is, of curse, entirely possible—and within the broad sweep of the charging language of plaintiff's complaint—that the failure to inform her of the boy's tendencies was not so much the result of a decision on the part of state officials, that is to say the product of reasoned judgment, but that it stemmed from a negligent failure to exercise any judgment.   The result would be the same.   The discretionary immunity doctrine is designed for the benefit of officials who exercise judgment.   (Glickman v. Glasner, 230 Cal.App.2d 120, 126, 40 Cal.Rptr. 719.)   If, to protect such officials, it is thought worth while to sacrifice plaintiffs who are damaged by other officials who act with malice (Hardy v. Vial, 48 cal.2d 577, 582, 311 P.2d 494, 66 A.L.R.2d 739), surely mere thoughtlessness does not destroy the immunity.

5.   The court in Ne Casek, believed that the purpose of the discretionary immunity doctrine was as stated by the Supreme Court in Lipman v. Brisbane Elementary Sch. Dist., 55 Cal.2d 224, 229, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467:  “The subjection of officials, the innocent as well as the guilty, to the burden of a trial and to the danger of its outcome would impair their zeal in the performance of their functions, and it is better to leave the injury unredressed than to subject honest officials to the constant dread of retaliation.”   This rationale has been criticized in a scholarly note (39 So.Cal.L.Rev. 470) and by at least one appellate decision.  (Sava v. Fulelr, 249 Cal.App.2d 291, 190, 57 Cal.Rptr. 312).   We feel that we are bound by the pronouncements of the Supreme court and the fact that the Legislature, in adopting section 920.2, purported to restate preexisting California law as exemplified by Lipman v. Brisbane Elementary Sch. Dist., supra;  Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494, 66 A.L.R.2d 739 and White v. Towers, 37 Cal.2d 727, 235 P.2d 209, 28 A.L.R.2d 636.  (See Legislative Committee Comment to section 820.2;  cf. Scruggs v. Haynes, 252 Cal.App.2d—[252 A.C.A. 271, 279] 60 Cal.Rptr. 355.)   All three cases cited in the Legislative Committee Comment referred to rely on the rationale criticized in Sava v. Fuller, supra.

6.   Actual attempts to kill are not the only means by which homicidal tendencies can be established.   In the case at bar plaintiff submitted searching interrogatories to the defendant.   Unless the state deliberately withheld something in its answers, there is no incident in the boy's past, known to the state which would make one suspect that the boy had the traits of character manifested in his attack on plaintiff.   Nevertheless, in a proper case, such traits could be strongly suspected on the basis of the results of psychiatric or psychological testing.   Should it be actionable if the state withholds the results of a parolee's Rohrschach?

7.   It is noted that litigation rather than personal liability is the only threat which an official faces in most cases.   Under sections 825 to 825.6 of the Government Code the employing public entity must pay any judgment against the official unless it is based on an act or omission involving “actual fraud, corruption or actual malice.”   The author of the note in 39 Southern California Law Review, page 470 believes that this personal immunity from the financial burden of judgments enjoyed by employees should provoke a judicial reevaluation of the doctrine of discretionary immunity.   The suggestion overlooks the fact that the intended beneficiary of the doctrine is not the guilty official who, but for the doctrine, would have to pay a judgment, but the innocent one who has had to go through the litigation process before being vindicated.