EBARB v. COUNTY OF STANISLAUS

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Court of Appeal, Fifth District, California.

 Herman Patrick EBARB, Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents.

No. F008134.

Decided: May 11, 1988

 Charles A. Zeller, Stockton, for plaintiff and appellant.  Michael H. Krausnick, County Counsel, E. Vernon Seeley, Asst. County Counsel, Colleen D. Craig, Dean Wright, Harry P. Drabkin, Deputy County Counsel, Modesto, for defendants and respondents.

OPINION

Plaintiff, Herman Patrick Ebarb, appeals from a judgment on the pleadings in favor of the defendant, County of Stanislaus (County);  the court ruled the amended complaint did not state a cause of action against the County.   Other defendants are not affected.

Plaintiff's complaint for wrongful death sounds in negligence and alleges that three-year-old Melissa Ebarb was the child of plaintiff and Aurora Clark, also a defendant.   Ms. Clark was living with defendant Benjamin Ballard.

It is alleged that on October 3, 1984, Melissa died after being physically abused by Ballard with the knowledge and cooperation of Clark.   Plaintiff contacted the Stanislaus County Child Protective Services (CPS) to advise them of the likelihood extreme violence would be inflicted on Melissa.   By this telephone call, he sought some form of intervention or protective action on the part of CPS.   No form of action was taken.   In the attachment to his complaint, appellant describes the content of the telephone call made to CPS:

“The plaintiff was advised that MELISSA STELLA EBARB was being brutally attacked and made a request that the defendants ․ intervene immediately to prevent serious injury ․, and plaintiff advised them that imminent danger existed of the child being brutalized, and said defendants were advised that the urgency of the situation in the impending potential damages resulting therefrom.   Said defendants were advised of the location of the child, and the parties who were involved in such projected misconduct and brutalization.   At that time, plaintiff was unable to resort to self-help because he was under an order of the Superior Court of the State of California, County of Stanislaus, not to have contact with the child,․

“The significance of the seriousness of the brutalization and the urgency in protecting the child was conveyed to said defendants clearly and definitely and without any ambiguity as to the impending disaster, which ultimately culminated in the death of the child.   The urgency of the request  involved far more than investigation, it was one requiring immediate action and could not have been otherwise construed by the defendants.”

DISCUSSION

There are two legal issues on this appeal:  (1) did the defendant County owe any duty to the plaintiff or decedent;  and (2) if a duty was owed, was the County immune from liability pursuant to Government Code sections 820.2 and 815.2, subdivision (b).1

We will reverse the judgment on the determination that under the statutory scheme the County owed an affirmative duty to the decedent to intervene and the immunity issue cannot be determined on a motion for judgment on the pleadings.

In reviewing a judgment on the pleadings, this court is confined to the pleadings under attack.  (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 815, 195 Cal.Rptr. 421.)   All material facts as they are alleged in the pleadings must be accepted as true.  (Ibid.)  Even if it appears likely the defendant will prevail at the trial, a trial court should not grant the motion if the facts alleged constitute a cause of action.   (Schwartz v. Schwartz (1946) 74 Cal.App.2d 711, 713, 169 P.2d 688.)   In conducting this review, “ ‘the court cannot consider any matter outside of the complaint, or any defense thereto in the answer.’ ”  (Ibid.)

The allegations of appellant's amended complaint essentially charged that, once the CPS was informed of the potential danger to Melissa, the County had a duty to protect her, and the failure of CPS to intervene was a proximate cause of her death.

 It is clear that the issue of duty is a threshold issue which, if resolved against the plaintiff, disposes of the case without reaching the issue of governmental immunity.  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 790, 221 Cal.Rptr. 840, 710 P.2d 907;  Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201–203, 185 Cal.Rptr. 252, 649 P.2d 894.)   Thus, we will begin our analysis with a discussion of the duty owed by the County.

 Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894, dealt with the issue of duty.   The plaintiff in Davidson had been stabbed while in a public laundromat which was under police surveillance.   The laundromat had been the site for at least one other prior stabbing incident.   The surveillance was undertaken for the purpose of preventing future assaults and apprehending the suspect.  (Id. at p. 201, 185 Cal.Rptr. 252, 649 P.2d 894.)   The plaintiff alleged the police officers owed her a duty of care by virtue of a special relationship.

In affirming the judgment of dismissal entered after sustaining a demurrer, the Davidson court noted, that as a general rule, “one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.”  (Id. at p. 203, 185 Cal.Rptr. 252, 649 P.2d 894;  see also Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137.)   However, the court went on to explain that such a duty could arise if:

“ ‘(a) [A] special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’  [Citations.]”  (Id. at p. 203, 185 Cal.Rptr. 252, 649 P.2d 894.)

The issue therefore is refined to determining whether a special relationship existed between the County and Melissa 2 or between the County and Ballard imposing a duty on defendant County to protect Melissa from Ballard or to control Ballard's conduct.

 By analogy, the County relies on the well-settled principle in California that law enforcement personnel's duty to the general public as a whole to protect the citizenry, to investigate crimes and to respond to reports of criminal activity does not give rise to a special relationship with members of the public.   Therefore, generally, law enforcement personnel create no tort liability for failing to act.  (Williams v. State of California (1983) 34 Cal.3d 18, 27–28, 192 Cal.Rptr. 233, 664 P.2d 137;  Davidson v. City of Westminster, supra, 32 Cal.3d 197, at pp. 207–208, 185 Cal.Rptr. 252, 649 P.2d 894;  Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111, 222 Cal.Rptr. 239;  Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 8–10, 120 Cal.Rptr. 5.)   Thus in Hartzler v. San Jose, supra, a woman telephoned the police department to report that her estranged husband had called her and told her he would be coming to her home immediately to kill her.   The police refused to respond and told her to phone back when he arrived.   Forty-five minutes later the estranged husband arrived and stabbed the woman to death.  (Id. at p. 8, 120 Cal.Rptr. 5.)   The Hartzler court found the facts as pleaded did not establish the existence of a special relationship between the woman and the police department and that neither the police nor the city was liable for failing to intervene.   (Id. at p. 10, 120 Cal.Rptr. 5.)

 However, there are other recognized special relationships, some of which are created by statute, that do establish an affirmative duty to act.   In Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 788, 221 Cal.Rptr. 840, 710 P.2d 907, the court held that Civil Code section 2100 created a special relationship between a common carrier and a passenger requiring the common carrier, under some circumstances, to protect passengers from injury by fellow passengers.3  The court said:

“Implicit in our discussion in Williams [Williams v. State of California [1983] 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137] is the recognition that some relationships by their very nature are ‘special’ ones giving rise to an ‘initial duty’ to come to the aide of others, regardless of whether there has been detrimental reliance in a particular case.   The relationship between a common carrier and its passengers is just such a special relationship, as is the relationship between an innkeeper and his or her guests, between a possessor of land and those who enter in response to the landowner's invitation and between a psychiatrist and his or her patients.   [Citations.]

“․

“In contrast to a police officer's generalized duty to the public as a whole, common carriers have a specific statutory duty to provide for the safe carriage of those specific individuals who have accepted the carrier's offer of transportation and have put their safety, and even their lives, in the carrier's hands․”  (Id. at pp. 789–790, 221 Cal.Rptr. 840, 710 P.2d 907.)

 Similarly here, we believe Welfare and Institutions Code sections 16501.1 and 16504, enacted effective October 1983, creates such a special relationship between county welfare departments and abused children.   Those sections now provide:

Section 16501.1 provides:

“Preplacement Preventive Services are those services which are designed to help children remain with their families by preventing or eliminating the need for removal.

“(a) The Emergency Response Program is a component of Preplacement Preventive Services and is a response system which provides * * * in-person response, 24 hours a day, seven days a week to reports of abuse, neglect, or exploitation, for the purpose of providing initial intake services and crisis intervention to maintain the child safely in his or her own home or to protect the safety of the child.  County welfare departments shall respond to any report of imminent danger to a child immediately and all other reports within 10 calendar days.   An in-person response is not required when the county welfare department, based upon an assessment, determines that an   in-person response is not appropriate.   An assessment includes collateral contacts, a review of previous referrals, and other relevant information, as indicated.[4]

“(b) The Family Maintenance Program is a component of Preplacement Preventive Services and is designed to provide time-limited protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families․”

Section 16504 provides:

“Any child reported to the county welfare department to be endangered by abuse, neglect, or exploitation shall be eligible for initial intake and assessment services.   Each county welfare department shall maintain and operate a 24–hour response system.   An immediate in-person response shall be made by a county welfare department social worker in emergency situations in accordance with regulations of the department.   The person making any initial response to a request for child welfare services shall consider providing appropriate social services to maintain the child safely in his or her own home.   However, an in-person response is not required when the county welfare department, based upon an assessment, determines that an in-person response is not appropriate.[5]  An assessment includes collateral contacts, a review of previous referrals, and other relevant information, as indicated․”

These sections are part of a public system of statewide child protective services originally provided for in 1968 by the enactment of Welfare and Institutions Code sections 16500 et seq. which in broad outline provided for the creation of a child protective service “for the purpose of preventing or remedying, or assisting in solution of problems which may result in, the neglect, abuse, exploitation, or delinquency of children․”  The section also provided that “a child protective services' program shall receive any referral or complaint from a public or private agency or from any person having reasonable cause to know the welfare of a child is in danger, and shall take such actions as are considered necessary to protect the child and correct the situation․”  These general purpose sections have been amended from time to time to more particularize the services to be performed.  Sections 16501.1 and 16504, supra, were added in 1982, effective October 1, 1983.

While a legislative history of these sections does not provide any explicit direction on the subject, it is apparent to us that the statute contemplates  placing the helpless young in a special grouping or class for the purpose of protecting them from neglect and abuse by others in our society.   The enactments represent a legislative recognition of society's responsibility to protect those who, by reason of their age, are unable to protect themselves against mental, physical and sexual abuse by others.

Both sections 16501.1 and 16504, which must be read together, are explicit on the subject.  Section 16501.1 creates the emergency response program and section 16504 states in relevant part, “an immediate in-person response shall be made by a county welfare department social worker in emergency situations in accordance with regulations of the department․” 6  The last sentence of section 16504 states “an assessment includes collateral contacts, a review of previous referrals, and other relevant information, as indicated․”

It would seem beyond cavil that these sections create an affirmative duty to immediately intervene in emergency situations for the purpose of protecting the safety of children.   The word “shall” denotes that the duty is mandatory.   A mandatory duty arises when CPS determines there is an “emergency” situation.   This determination is made in accordance with the regulations of the department and after making an assessment of the situation including collateral contacts, a view of previous referrals and other relevant information.   Thus, CPS has considerable discretion in determining whether an emergency exists.   If it determines an emergency exists, CPS must make an immediate in-person response.7

 In the interest of space, we shall not repeat the allegations of the complaint (supra ) in the present case.   Assuming these allegations to be true as we must on a motion for judgment on the pleadings, it is beyond question that they bring into operation the provisions of the statutory scheme.   As the statute read at the time of the events herein, the County, at a minimum, had a mandatory duty to exercise its discretion to determine if an emergency existed.

 We now turn to the issue of governmental immunity.

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.”

Although section 820.2 expressly immunizes only the employee, if the employee is immune, so too is the County.  (Gov.Code, § 815.2, subd. (b);  Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 496, 203 Cal.Rptr. 33.)

This court has explained that “[g]overnmental immunity for liability for discretionary acts performed by public officers and employees in the exercise of their discretion has long been recognized in this state by judicial interpretation and is based on salutary public policy.”  (Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 448, 54 Cal.Rptr. 805.)   In Burgdorf we went on to state:

“Generally speaking, a discretionary act is one which requires the exercise of judgment or choice.   Discretion has also been defined as meaning equitable decision of what is just and proper under the circumstances.  [Citation.]  It is not, however, possible to set forth a definitive rule which will resolve every case, and other factors must also be considered as, for example, the importance to the public of the function involved.  [Citation.]”  (Id. at p. 449, 54 Cal.Rptr. 805.)

The importance of public policy in the determination of the difference between discretionary acts, which are accorded immunity, and ministerial acts, which are not, was discussed in Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465.   There our Supreme Court explained that

“[b]ecause of important policy considerations, the rule has become established that government officials are not personally liable for their discretionary acts within the scope of their authority even though it is alleged that their conduct was malicious.  [Citations.]  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.  [Citation.]”  (Id. at p. 229, 11 Cal.Rptr. 97, 359 P.2d 465.)

Lipman rejected a purely mechanical analysis of “discretionary” in favor of greater reliance on the policy considerations relevant to the purpose of granting immunity to the governmental agency whose employees act in discretionary capacities.8

Johnson v. State of California, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, a leading case in this area, expressly approved the Lipman approach (id. at pp. 794–795, 73 Cal.Rptr. 240, 447 P.2d 352) and  expanded upon the concept stating:

“In drawing the line between the immune ‘discretionary’ decision and the unprotected ministerial act we recognize both the difficulty and the limited function of such distinction.   As we said in Lipman v. Brisbane Elementary Sch. Dist., supra, 55 Cal.2d 224, 230 [11 Cal.Rptr. 97, 359 P.2d 465], ‘it may not be possible to set forth a definite rule which would determine in every instance whether a governmental agency is liable.’   A workable definition nevertheless will be one that recognizes that ‘[m]uch of what is done by officers and employees of the government must remain beyond the range of judicial inquiry’ (3 Davis, Administrative Law Treatise (1958) § 25.11, p. 484);  obviously ‘it is not a tort for government to govern’ (Dalehite v. United States (1953) 346 U.S. 15, 57 [73 S.Ct. 956, 979, 97 L.Ed. 1427] (Jackson, J., dissenting)).   Courts and commentators have therefore centered their attention on an assurance of judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government.   Any wider judicial review, we believe, would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.   Moreover, the potentiality of such review might even in the first instance affect the coordinate body's decision-making process.  [Citations.]”  (Id. at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352;  see also Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 793, 221 Cal.Rptr. 840, 710 P.2d 907.)

As one example, the court in Johnson posited that the decision to parole a prisoner is definitely a discretionary decision entitled to immunity while subsequent ministerial action taken to implement that policy such as placing a parolee in a particular foster home without warning the foster parents of the dangerous propensity of the parolee would not be immune.   On page 796 of the opinion, the court cites a number of other situations from the federal sphere where the initial decision is discretionary but the subsequent decisions relative to the implementation of the discretionary decision are ministerial.   (See also Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d 792, 793–794, 221 Cal.Rptr. 840, 710 P.2d 907.)

 At this point in these proceedings, we are dealing only with the allegations of the complaint and do not know whether the facts will reveal that the County in fact exercised discretion.   In this regard, the Lopez court was confronted with the issue of whether there was a discretionary immunity at the demurrer stage and the court held that assuming the employee's decision was a policy decision it would be improper to pass on the issue of discretionary immunity because the court could not tell whether discretion was actually exercised.  (Id. at p. 794, 221 Cal.Rptr. 840, 710 P.2d 907.)   The court stated:

“Moreover, even if a bus driver's decision concerning what kind of protective action to take could be considered a ‘discretionary’ one, it would be improper to sustain RTD's demurrer on the basis of Government Code section 820.2.  Section  820.2 provides immunity only for the acts or omissions that are ‘the result of the exercise of the discretion’ vested in a public employee (italics added).   Therefore, the court in Johnson held that to avail itself of the discretionary immunity provided by section 820.2, a public entity must prove that the employee, in deciding to perform (or not to perform) the act which led to plaintiffs' injury, consciously exercised discretion in the sense of assuming certain risks in order to gain other policy objectives.  ‘[T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place.   The fact that an employee normally engages in “discretionary activity” is irrelevant if, in a given case, the employee did not render a considered decision’ (69 Cal.3d at pp. 794–795, fn. 8, 73 Cal.Rptr. 240, 447 P.2d 352).   Such a showing was not and could not have been made by RTD at the demurrer stage.  [Citations.]  It therefore would be error to sustain RTD's demurrer based on Government Code section 820.2.”  (Ibid.)

Similarly, because this is an appeal from a judgment on the pleadings, we cannot tell whether the County in fact consciously exercised discretion.   Accordingly, the judgment must be reversed.

The judgment on the pleadings is reversed and the cause is remanded for further proceedings consistent with this opinion.   Costs are awarded to appellant.

FOOTNOTES

FOOTNOTE.  

1.   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.”Section 815.2, subdivision (b) provides:“Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

2.   Since this is a wrongful death action for the death of Melissa, appellant's rights are derivative through Melissa.

3.   Civil Code section 2100 provides:“A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”

4.   The underlined parts were added in 1987 and were not in effect at the time of the events herein.   Likewise, the word “immediate” in subdivision (a) of section 16501.1 at the elipsis was deleted by the 1987 amendment.

5.   See footnote on page 849, ante.

6.   No departmental regulations in this regard have been provided to us.

7.   It is apparent that the Legislature has belatedly recognized the extensive burden that this mandatory duty places upon the counties and has, by the 1987 amendments to these sections, provided that an in-person response is not required when the county welfare department “based upon an assessment determines that an in-person response is not appropriate.”   Clearly, these amendments vest in county welfare departments discretion wider than that merely associated with determining whether an emergency exists.

8.   The Legislature in adopting Government Code section 820.2 in 1963 specifically approved the Lipman approach.  (Johnson v. State of California (1968) 69 Cal.2d 782, 789, fn. 4, 73 Cal.Rptr. 240, 447 P.2d 352.)

GEO. A. BROWN *, Associate Justice, Assigned. FN* Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

HAMLIN, Acting P.J., and BALLANTYNE, P., concur.