N.R. v. San Bernardino County Children and Family Services CA4/2 (2022) · DecisionDepot
N.R. v. San Bernardino County Children and Family Services CA4/2
California Court of Appeal Nov 10, 2022 No. E074418Unpublished
Filed 11/10/22 N.R. v. San Bernardino County Children and Family Services CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
N.R., A MINOR, etc.,
Plaintiff and Appellant, E074418
v. (Super.Ct.No. CIVDS1416377)
SAN BERNARDINO COUNTY OPINION CHILDREN AND FAMILY SERVICES,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster,
Judge. Affirmed.1
The Ehrlich Law Firm and Jefffrey I. Ehrlich; The Vartazarian Law Firm, Steven
R. Vartazarian and Matthew J. Whibley for Plaintiff and Appellant.
1 We dismiss the cross-appeal as moot. 1
Michelle D. Blakemore, County Counsel and Blakney A. Boggs, Deputy County
Counsel; Dolen, Tucker, Tierney & Abraham and Raymond F. Dolen; Greines, Martin,
Stein & Richland and Timothy T. Coates for Defendant and Appellant.
After investigating a referral for possible child abuse, a social worker for the San
Bernardino County Child and Family Services (the County or CFS) determined the
allegations were unfounded due to lack of current evidence of abuse, but recommended
parenting classes for Christopher R., the father, and Hannah T., his girlfriend, to avoid a
risk of potential harm to the child, N., because they had admitted to using corporal
punishment on the child in the past. Six months later, the child suffered a catastrophic
head injury at the hands of the girlfriend which left the child severely disabled. The child
was removed from the father and placed in the custody of his mother, Laurel R.,2 who
sued the County for breach of a mandatory duty to open a case file and investigate
collateral contacts. Following trial, a jury found the County was 85 percent liable for the
injuries to the child. The County filed a motion for judgment notwithstanding the verdict
(JNOV) and, alternatively for a new trial. The court granted both motions. Plaintiff, as
guardian ad litem for the child, appealed. The County cross-appealed from the original
judgment in favor of plaintiff.
On appeal, plaintiff argues that the trial court erred in granting the motion for
JNOV by (a) relying on an erroneous construction of the County’s legal duties and (b)
2 Plaintiff’s mother’s first name is variously spelled “Laurell,” as in the plaintiffs’ pleadings, and “Laurel” in the record (the trial court’s rulings, and plaintiffs’ Notice of Appeal). Because plaintiffs’ counsel filed the notice of appeal with the spelling, “Laurel,” we will use that spelling for convenience.
2
improperly resolving factual issues in the County’s favor. The County argues by way of
cross-appeal that if the orders are procedurally defective, the County is entitled to a new
trial. We affirm the trial court’s grant of defendant’s motions and dismiss defendant’s
appeal.
BACKGROUND
Laurel R. was previously married to Christopher R., and the couple had a child,
N., who was born in 2008, while the couple lived in North Carolina where Christopher, a
Marine, was stationed. The couple subsequently divorced and Christopher assumed
physical custody of N. When Christopher was transferred to Twentynine Palms, N.
moved with him, as well as his girlfriend Hannah T. Christopher was an air traffic
controller for the Marines and had been transferred to San Bernardino County.
On September 2, 2013, an ex-roommate of Christopher and Hannah’s made a
report of abuse and neglect of N. on the San Bernardino County Child and Family
Services (CFS or County) Child Abuse Hotline. The report indicated that Hannah locked
N. in his room all day causing him to defecate and urinate in the room and that N. was
fed only vegetables, but his food would be taken away as punishment. The door to N.’s
room locked from the outside so N. could not exit the room. When he defecated on
himself, he was given a cold shower. The caller also indicated he was verbally abused,
had dark circles around his eyes, and that Hannah used a drumstick to beat N.
In response to this report, Luz Campas investigated the allegations on September
2, 2013. Campas found no prior history, and, when she examined N. during an
3
unannounced visit, he appeared well-nourished and groomed, his room was appropriate,
and no feces were found. Her report also noted that the house was adequate, there was
more than ample furniture and food in the home, N. appeared to be comfortable with his
parents and did not fear them. There were no visible marks or bruises on N. and his skin
was fair. Social worker Campas concluded the allegations were unfounded.
After this experience with child welfare authorities, Hannah’s mother, Rachel K.,
arranged for Hannah and N. to visit her in Oregon on the same day that Campas and
Deputy Hess did their investigation because Hannah was overwhelmed. While in
Oregon, Hannah’s mother, Rachel, observed that the relationship between Hannah and N.
was troubling, that Hannah was overly harsh and critical of N., and that she was too
controlling. Rachel also observed bruising on N. from head to toe.
In addition, Rachel’s son informed Rachel he had seen Hannah hose down N.
outside and beat him with a wooden spoon. Rachel contacted Christopher by phone to
express her concern about N.’s treatment. Rachel also spoke with Hannah,
recommending that N. stay with Rachel and that Hannah get mental health care.
However, Hannah became upset and left her mother’s home several days earlier than
planned.
On September 27, 2013, Rachel telephoned the Yucca Valley police department
because she worried nothing would be done to protect N. She reported observing Hannah
take N.’s food away and that N. appeared severely underweight. Deputy Bailey
responded to that call and went to the home to interview and examine N. N. informed
4
Deputy Bailey that when he peed or pooped in this diaper, Hannah hit him in the head
and face and beat him with a drumstick on his butt and face, even pointing to the
drumstick that Hannah used, and then gave him a cold bath. He also indicated she beat
him up and it hurt everywhere. N. also informed the deputy that Hannah took away his
food as punishment because he picked up his hotdog with his hand.3 Deputy Bailey
reported to the Hotline that Hannah hit N. with spoons, hangers, and a spatula all over his
body and that Christopher allowed his son to stay at home alone with Hannah.
In response to this second referral, social worker Karen Perry went to the home on
October 1, 2013, but did not meet with Christopher or Hannah until October 6, 2013.4
During the interview, N. told Perry he felt safe at home and denied anything scary
happened to him. Perry found N. to be “bright in affect and thin” with “good skin
pal[l]or,” except under his eyes. Hannah and Christopher were also interviewed, and
denied withholding food, but informed Perry that N. behaved strangely, urinating on his
toys, defecating and smearing his feces. Both Christopher and Hannah admitted Hannah
had occasionally used corporal punishment with N. by using a drum stick to spank him
on the buttocks, and on one occasion they observed a bruise from such a spanking.
3 In her deposition testimony (which was introduced at trial), Hannah admitted that N. was clearly malnourished and was so skinny they did not want to take him to the store, even.
4 Perry’s first attempt to have a face-to-face meeting was on October 1, 2013, but a roommate informed Perry that Christopher was not at home and Hannah was in bed. She left her card and Christopher telephoned Perry the next day, when a home visit was arranged.
5
Thereafter, they stopped using corporal punishment, and, instead, disciplined N. with
time-outs.
Perry physically examined N.’s body but found no signs of bruising or trauma.5
The house was above minimal standards and there were no signs of abuse or neglect. N.
denied anything scary, indicated he felt safe at home and that he was punished by being
made to sit against the wall in time out. However, she thought parenting classes might be
helpful to the couple because they acknowledged corporal punishment had been used
until a few weeks prior to Perry’s visit, when Christopher indicated he had seen a bruise
and had not realized N. bruised easily. As a result, the couple currently used time outs of
5 minutes in duration. Because the couple had used physical punishment in the past,
Perry provided them with some brochures about parenting classes, but did not mandate
that they attend. Because there was no current evidence of abuse or neglect, Perry
determined that the allegations were unfounded, and closed the file.
In the meantime, N. was examined in December 2013 and January 2014 by a
doctor, who is a mandated reporter, in connection with N.’s circumcision, and the doctor
did not indicate any signs of malnutrition or abuse.
On May 18, 2014, more than six months after Perry’s home inspection, N. was
admitted to the hospital with a large acute subdural hematoma and was in a coma. He
was also diagnosed with nonorganic failure to thrive when admitted to the hospital.
5 In February of 2014, plaintiff came to California to see N. and observed no signs of abuse or neglect, either.
6
Hannah severely injured N. while Christopher was not present in the home.6 His face
and body were covered with bruises, but Hannah told her mother he fell off a stool and
hit his head on the floor. N. suffered catastrophic permanent injuries as a result of the
beating, for which Hannah was arrested for violating Penal Code section 273a,
subdivision (a), leading to her conviction and sentence of 15 years in prison. Christopher
was charged and pled guilty to a misdemeanor charge of violating Penal Code section
273a, subdivision (a).7
Physical custody of N. was awarded to Laurel, who then filed her lawsuit against
the County for recovery for injuries sustained by N. after the County allegedly failed to
perform mandatory duties set forth in the Child Welfare Services Manual of Policies and
Procedures, sections 31-101.5 and 31-125.5. Following trial, the jury returned a special
verdict in favor of plaintiffs: The special verdict awarded $602,625.66 for past economic
damages; $9,900,000.00 for future economic loss, $2,900,000.00 for future loss of
earning capacity, $15,000,000.00 for past noneconomic loss, and $85,000,000.00 for
future noneconomic loss. The jury assessed fault as follows: the County was 85 percent
6 The agency of the injuries is unknown because statements attributed to Hannah regarding the abuse on this occasion were not included in the excerpt of the deposition testimony introduced at trial.
7 There is nothing in the record supporting the statement about this conviction; the only “evidence” we have of Christopher’s conviction is a vague statement by Hannah about his arrest during her deposition testimony, and counsel’s opening statement. This fact appears to be undisputed so we refer to it here, but it is actually a matter outside the record on appeal where no competent evidence of the conviction appears in the record.
7
at fault, Christopher was 10 percent at fault, and Hannah was 5 percent at fault.
Judgment was entered accordingly.
On September 6, 2019, the County made motions for judgment notwithstanding
the verdict and, alternatively, for a new trial. Plaintiff opposed the motions. On October
30, 2019, the trial court issued its rulings granting both motions. Specifically, the court
found that there was no substantial evidence that the closure of the referral by Perry fell
outside the her discretion or that it was a violation of her mandatory duty where she
determined the allegations were unfounded. It also concluded that the evidence showed
Perry’s full compliance with the mandatory duties, such that there was no substantial
evidence to support the jury’s finding of a violation of mandatory duties.
As for the motion for new trial, the court granted the motion because the jury’s
apportionment of 85 percent of the fault to the County was unreasonable and punitive,
and because there was insufficient evidence that Perry violated a mandatory duty where,
in the exercise of a social worker’s discretion, she determined the allegations were
unfounded. Plaintiff timely appealed and defendant cross-appealed from the original
judgment.
DISCUSSION
A. Plaintiff’s Appeal.
1. The Trial Court Properly Granted the Motion for JNOV.
Plaintiff argues that the court erred in granting the County’s motion for JNOV
because the trial court relied on an erroneous construction of the county’s legal duties and
8
improperly resolved disputed factual issues in the County’s favor. Regarding the claim
of erroneous construction of the mandatory duties, plaintiff alleges that (a) Perry’s
designation of the allegations she investigated as “unfounded,” was not entitled to
weight; (b) the trial court applied the wrong standard in concluding that Perry complied
with mandatory duties; and (c) even if Perry’s “unfounded” determination is credited,
that did not excuse her failure to open a case plan. We disagree.
a. General Principles Governing Motions for JNOV.
A motion for JNOV may be granted only if a motion for a directed verdict should
have been granted. (Code Civ. Proc., § 629, subd. (a)). “A motion for judgment
notwithstanding the verdict may be granted only if it appears from the evidence, viewed
in the light most favorable to the party securing the verdict, that there is no substantial
evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th
62, 68, citing Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110.)
“The power of the court to direct a verdict is subject to the same limitations as its
power to grant a nonsuit.” (Reynolds v. Willson (1958) 51 Cal.2d 94, 99, citing Pellett v.
Sonotone Corp. (1945) 26 Cal.2d 705, 708 [overruled on a different point in Leung v.
Verdugo Hills Hospital (2012) 55 Cal.4th 291, 302].) A nonsuit may be granted only
where, disregarding conflicting evidence on behalf of the defendants, and giving to
plaintiff’s evidence all the value to which it is legally entitled, therein indulging in every
legitimate inference which may be drawn from that evidence, the result is a determination
9
that there is no evidence of sufficient substantiality to support a verdict in favor of the
plaintiff.
“‘“The granting of a motion for nonsuit is warranted when, disregarding
conflicting evidence, giving plaintiff’s evidence all the value to which it is legally
entitled, and indulging in every legitimate inference that may be drawn from the
evidence, the trial court determines that there is no evidence of sufficient substantiality to
support a verdict in favor of plaintiff.” [Citations.] [¶] Plaintiff cannot prevail unless he
can demonstrate substantial evidence in the record to support each claim asserted. Mere
conjecture or nonsensical interpretations of evidence are not sufficient to overturn a
nonsuit.’” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 684, quoting
Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580; see also Ritschel
v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 115.)
Thus, “‘“[a] motion for judgment notwithstanding the verdict may be granted only
if it appears from the evidence, viewed in the light most favorable to the party securing
the verdict, that there is no substantial evidence in support. [Citation.] [¶] . . . As in the
trial court, the standard of review [on appeal] is whether any substantial evidence—
contradicted or uncontradicted—supports the jury’s conclusion.”’” (Webb v. Special
Electric Co., Inc. (2016) 63 Cal.4th 167, 192, quoting Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764, 770.)
Regarding situations in which motions for JNOV and for new trial are both
granted, if the court grants a motion for judgment notwithstanding the verdict and
10
likewise grants the motion for a new trial, the order granting the new trial shall be
effective only if, on appeal, the judgment notwithstanding the verdict is reversed, and the
order granting a new trial is not appealed from or, if appealed from, is affirmed.” (Code
of Civ. Proc., § 629, subd. (d); Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310,
330.) “The obvious import of this quoted language of [Code of Civil Procedure] section
629 is that an order granting the new trial is contingent upon the result of the appeal of
the JNOV; that is, the order is not effective unless and until the JNOV has been reversed
on appeal, and is moot if the JNOV is affirmed on appeal, and several cases have so
held.” (Cobb v. University of So. California (1996) 45 Cal.App.4th 1140, 1146.)
On appeal, we are bound to view the evidence in the light most favorable to the
party securing the verdict, unless our review of the record discloses no evidence nor any
reasonable inference therefrom which supports the jury’s verdict. (See Hauter v. Zogarts
(1975) 14 Cal.3d 104, 111.) “When the issue raised is whether sufficient evidence
supports the jury’s factual findings, appellate courts apply the substantial evidence
standard.” (Cleveland v. Taft Union High School Dist. (2022) 76 Cal.App.5th 776, 802,
citing Hauter v. Zogarts, supra, 14 Cal.3d at p. 110.) “Alternatively, when the appeal
raises purely legal questions, appellate courts apply the independent (i.e., de novo)
standard of review. (Cleveland v. Taft Union High School Dist., supra, at p. 802, citing
Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045 [“all facts essential to issue of
ostensible agency were undisputed; jury’s finding of ostensible agency was contrary to
the law; judgment was reversed”].)
11
In the present matter, facts are not in dispute. The primary issue is whether Perry
violated a mandatory duty specified in the statutes governing duties of child welfare
workers and the regulations and policies and procedures that specify the manner of their
investigations. As matters of statutory construction, we review de novo. (Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1332.)
b. Mandatory Duties of Child Welfare Professionals in Investigating
Allegations of Abuse or Neglect.
Plaintiff argues the trial court erred in granting the JNOV because the jury
properly found that Perry violated mandatory duties, thereby exposing the County to
liability. To properly address this question, we must determine what her mandatory
duties were.
The Child Abuse and Neglect Reporting Act (CANRA; Pen. Code, § 11164 et
seq.) was enacted to protect children from abuse and neglect by increasing the
communication and sharing of information relating to child abuse and neglect among the
agencies responsible for the welfare of children. (Pen. Code, §§ 11166.3, subd. (a),
11164, subd. (b).)
To accomplish this, CANRA designates certain agencies to accept reports of
alleged child abuse or neglect and to cross-report the information contained therein to
other agencies. (Pen. Code, § 11166; B.H. v. County of San Bernardino (2015) 62
Cal.4th 168, 174.)
12
Under CANRA, when an agency receives a report of suspected abuse or neglect
from a mandatory reporter,8 it is required to accept the report (Pen. Code, § 11165.9) and
it is also required to cross-report the allegation to the county welfare or probation
department. (Pen. Code, § 11166, subd. (k).) Once a report is made, responsibilities shift
and other governmental authorities take over. (James W. v. Superior Court (1993) 17
Cal.App.4th 246, 254.) The Act is a reporting scheme to increase the likelihood that
child abuse is identified and reported to authorities for investigation. (Ferraro v.
Chadwick (1990) 221 Cal.App.3d 86, 90.) Other provisions of CANRA specify different
obligations and procedures for the reporting of investigations. (Pen. Code, §§ 11166.3,
subd. (a), 11169, subd. (a).) The child welfare agency for the county is then tasked with
investigating the allegation or report to determine if the child requires protection.
The duty imposed on child welfare service professionals to investigate referrals
pertaining to abuse or neglect involve policies and procedures found in the California
Department of Social Services (DSS) Manual of Policies and Procedures, enacted
pursuant to Welfare and Institutions Code section 16501. The policies and procedures
may therefore qualify as enactments which create a public entity duty. (See Scott v.
County of Los Angeles (1994) 27 Cal.App.4th 125, 134 [breach of mandatory duty found
to exist where social worker visited dependent child in placement only three times in 10
months, rather than on monthly basis as required by DSS Manual of Policies and
8 Hannah’s mother, who initiated the report to the Yucca Police Department, is a mandatory reporter. Likewise, Deputy Bailey is a mandated reporter, insofar as law enforcement officers are designated as such under CANRA, and are required to cross- report to the child welfare agency. (Pen. Code, § 11166, subd. (k); Gov. Code, § 815.6.)
13
Procedures regulation 30-342 (predecessor of reg. 31-320), no investigation was
conducted of allegations of physical abuse, and child was subsequently severely injured
by caregiver].)
Respecting the investigation of allegations, a social worker is required to conduct
an in-person investigation of allegations when a referral is made by a law enforcement
agency. (Man. Policies & Proc., § 31-110.4.) This in-person investigation may be
conducted immediately or within 10 days. (Ibid.) In conducting the investigation, the
social worker shall determine the potential for, or the existence of, any conditions that
place the child at risk and in need of services, and which would cause the child to be a
person described by Welfare and Institutions Code, section 300, subdivisions (a) through
(j). (Man. Policies & Proc., § 31-125.1.)
The social worker shall have in-person contact with all children alleged to have
been abused or at risk of abuse, and at least one person who has information regarding
the allegations. (Man. Policies & Proc., § 31-125.2.) If the social worker determines the
referral (or allegation) is unfounded pursuant to Penal Code section 11165.12, the social
worker shall document that information. (Man. Policies & Proc., § 31-125.21.) If the
social worker does not determine the allegations are unfounded, then the social worker is
required to make necessary collateral contacts. (Man. Policies & Proc., §§ 31-125.22,
31-125.221.)
Plaintiffs assert that Perry’s testimony about the reasons for recommending
parenting classes indicated that she found the allegations inconclusive, rather than
14
unfounded, and thus required contact with collateral sources and a case plan. However,
this assertion is not supported by the record. In plain language, Perry found the
allegations unfounded. Perry stated that she provided brochures about parenting classes
due to the parents’ admission of recent corporal punishment, which Perry felt would
benefit the parents.
The only reasonable interpretation of Perry’s conclusions and her testimony is that
voluntary parenting classes would educate the parents about age-appropriate discipline
and did not indicate there was a risk of physical abuse that might bring the child within
the provisions of Section 300. As Perry herself testified, she recommended the services
to build on their strengths, which had included the decision to no longer use corporal
punishment. In and of itself, age-appropriate discipline, including spanking, is not a
ground for intervention by the social services agency or the court system. (See Welf &
Inst. Code, § 300, subd. (a).) Thus, after Perry contacted N. and his father regarding the
allegations and completed the in-person investigation, she concluded the allegations were
unfounded, but recommended voluntary parenting education due to Hannah’s admission
of past corporal punishment and to prevent abuse, not because there was a current risk of
abuse. The fact Perry recommended voluntary services did not alter her finding that the
allegations were unfounded at the time of her investigation and nothing in the record
supports the inference that she found a risk of abuse. Without such a finding, there was
no mandatory duty to make further or collateral contacts.
15
The social worker’s determination, following an investigation, is key to the
existence of other or further mandatory duties. Penal Code section 11165.12 sets out the
governing definitions pertaining to the results of a child welfare investigation. Based on
the terminology used in the CANRA, an investigation of child abuse may result in a
report with one of three possible findings: unfounded, substantiated or inconclusive. An
“‘[u]nfounded report’ means a report that is determined by the investigator who
conducted the investigation to be false, to be inherently improbable, to involve an
accidental injury, or not to constitute child abuse or neglect . . . .” (Man. Policies &
Thus, where a social worker determines that the allegations are unfounded,
voluntary services may be offered, but are not necessary. (Welf. & Inst. Code, § 300;
Man. Policies & Proc., §§ 31-125.21, 31-125.4.)
Plaintiff emphasizes that despite the conclusion that the allegations were
unfounded, the social worker determined there was “some risk” posed by the corporal
discipline that Christopher and Hannah admitted using, and this determination gave rise
to a mandatory duty. However, the social worker’s statement did not import that she
21
believed N. was at risk of meeting the definition of a dependent child pursuant to Welfare
and Institutions Code section 300, such as would result in a finding that the allegation
was substantiated. She expressly found that no such circumstances existed at the time of
the investigation and that child welfare services were not necessary. But, recognizing
that Hannah had admitted spanking N. with a drumstick, which left marks in the past,
Perry recommended parenting classes to Christopher and Hannah as a preventive
measure and to build on the family’s strengths.
Because services were determined to be unnecessary, no case plan was mandated
by either the Welfare and Institutions Code or the Manual of Policies and Procedures.
It is indeed tragic that no signs of abuse or neglect were present when Perry made
her in-person investigative visit. But she followed the protocols and complied with the
mandatory duties set forth in the Welfare and Institutions Code and the Manual of
Policies and Procedures. After conducting her investigation, she concluded the
allegations were unfounded due to lack of current evidence.9 Absent any existing or
potential risk of serious physical harm, her determination that child welfare services were
unnecessary was appropriate. Her conclusion, as provided in all the authorities, was a
9 “Current” evidence of abuse is required because juvenile court dependency jurisdiction may not be grounded solely on past acts; there must be some basis to conclude the abuse will continue in the future. And the purpose of the investigation by the child welfare agency is to determine if the child is in need of protection due to the existence of or potential for abuse or neglect. “Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300. There must be some reason beyond mere speculation to believe the alleged conduct will recur.” (In re James R. (2009) 176 Cal.App.4th 129, 136, citing In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
22
discretionary act, based on the circumstances presented at the time of her investigation.
Perry did not violate a mandatory duty by not developing a case plan. Indeed, when
allegations are deemed to be unfounded, and child welfare services are determined to be
unnecessary in the discretion of the social worker, there was not even a mandatory duty
to offer voluntary services.
d. Because Perry was Not Under a Mandatory Duty to Further Investigate
Allegations She Determined Were Unfounded, the County is Immune.
Under the Government Claims Act (Gov. Code, § 810 et seq.), governmental tort
liability must be based on statute. “Except as otherwise provided by statute: [¶] . . . [a]
public entity is not liable for an injury, whether such injury arises out of an act or
omission of the public entity or a public employee or any other person.” (Gov. Code,
§ 815, subd. (a)); B.H. v. County of San Bernardino, supra, 62 Cal.4th at p.179, citing
Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.)
However, Government Code section 815.6 provides a statutory exception to the
general rule of public entity immunity by providing: “Where a public entity is under a
mandatory duty imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that kind proximately
caused by its failure to discharge the duty unless the public entity establishes that it
exercised reasonable diligence to discharge the duty.” (Gov. Code, § 815.6.)
“Government Code section 815.6 has three elements that must be satisfied to
impose public entity liability: (1) a mandatory duty was imposed on the public entity by
23
an enactment; (2) the enactment was designed to protect against the particular kind of
injury allegedly suffered; and (3) the breach of the mandatory statutory duty proximately
caused the injury.” (B.H. v. County of San Bernardino, supra, 62 Cal.4th at p.179.)
“Even when a duty exists, California has enacted specific immunity statutes that, if
applicable, prevail over liability provisions. [Citation.] The first question always is
whether there is liability for breach of a mandatory duty. [Citation.] If there is no
liability, the issue of immunity never arises.” (Ibid.)
A public entity may be liable for failure to discharge “a mandatory duty imposed
by an enactment that is designed to protect against the risk of a particular kind of
injury . . . unless the public entity establishes that it exercised reasonable diligence to
discharge the duty.” (Gov. Code, § 815.6.) In an action against a public entity, “[o]ne of
essential elements that must be pled is the existence of specific statutory duty.” (Becerra
v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1458.) “[A] negligence per se
claim against a public entity is the same as a breach of mandatory duty cause of action.”
(O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510, fn. 12.)
In the present case, the social worker discharged her mandatory duties, and,
finding no current evidence of abuse or neglect, concluded the allegations were
unfounded. This determination was a discretionary determination as there exists no
mandatory duty on the part of a social worker to draw any particular conclusion after
conducting an in-person investigation.
24
Because the allegations were unfounded, based on the lack of current evidence of
abuse or neglect, the social worker, in her discretion, determined that child welfare
services were not “necessary.” As such, there was no mandatory duty to develop a case
plan. The trial court correctly determined that Perry did not violate a mandatory duty,
such as would render the County liable.
B. County’s Appeal
The County appeals the original verdict of liability that resulted in a judgment
against it. It argues only that if we were to determine the trial court’s rulings were
procedurally defective, we should order a new trial for defendant. However, the trial
court granted the County’s motion for JNOV, so that verdict and the judgment based
thereon has been vacated. Where the subject order or judgment has been set aside by the
trial court, an appeal must be dismissed as moot. (People v. West Coast Shows, Inc.
(1970) 10 Cal.App.3d 462, 464; see also, El Escorial Owners’ Assn. v. DLS Plastering
Inc. (2007) 154 Cal.App.4th 1337, 1367; Andrisani v. Saugus Colony Ltd. (1992) 8
Cal.App.4th 517, 523.) The County’s appeal is therefore moot.
The trial court already granted the County’s motion for new trial, along with the
JNOV, so there is no need for us to review whether it should be granted. As indicated
above, in the situation where the trial court grants both a JNOV and a new trial, the new
trial “shall be effective only if, on appeal, the judgment notwithstanding the verdict is
reversed, and the order granting a new trial is not appealed from or, if appealed from, is
25
affirmed.” (Code of Civ. Proc., § 629, subd. (d).) Because that issue has been ruled on
previously, it also is moot.
The appeal is moot and subject to dismissal.
DISPOSITION
The judgment is affirmed. The cross-appeal is dismissed. The County is awarded
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
CODRINGTON J.
RAPHAEL J.
26
AI Brief
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Holding. The court held that the trial court properly granted the County's motion for judgment notwithstanding the verdict (JNOV) because the social worker's determination that the abuse allegations were unfounded was a discretionary act, and there was no substantial evidence that she violated any mandatory duties.
Issues
Whether the trial court erred in granting the County's motion for JNOV by relying on an erroneous construction of the County's legal duties.
Whether the trial court erred in granting the County's motion for JNOV by improperly resolving factual issues in the County's favor.
Whether the social worker violated mandatory duties under the Child Welfare Services Manual of Policies and Procedures.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The social worker’s determination, following an investigation, is key to the existence of other or further mandatory duties.”
“Perry’s determination that the allegations were unfounded, following the discharge of her mandatory duty to investigate, was a discretionary decision that has historically been recognized as discretionary.”
“The fact Perry recommended voluntary services did not alter her finding that the allegations were unfounded at the time of her investigation and nothing in the record supports the inference that she found a risk of abuse.”