Opinion
Under the Child Abuse and Neglect Reporting Act (Pen. Code, §§ 11164-11174.3; hereafter the Reporting Act), when a person reports known or suspected child abuse or neglect to an appropriate government agency, the identity of the person making the report is to remain confidential. (Pen. Code, § 11167, subd. (d)(1).)
For the reasons explained below, we hold that the trial court correctly sustained the demurrer without leave to amend. The issue of whether the County may be liable pursuant to section 815.6 for a failure to comply with the confidentiality provision in the Reporting Act boils down to a question of legislative intent. We conclude that tire County is not liable under section
FACTS AND PROCEDURAL HISTORY
The operative pleading at the time of the demurrer hearing was the third amended complaint (the complaint), which we now summarize. Plaintiffs Gerald Campbell and Antoinette Searle were doing business as All Angels Preschool/Daycare (hereafter the Preschool), located near Los Banos, California. On July 2, 2008, Gerald Campbell, who was required by the Reporting Act to report instances of suspected child abuse or neglect,
According to the complaint, Xiong Pha revealed Mr. Campbell’s identity as the reporter of suspected child neglect by sending to the child’s parent the County’s form letter entitled, “Emergency Response Notice of Referral Disposition,” which was supposed to be mailed to Mr. Campbell to inform him of the disposition of his report, but was mailed to the parent’s address instead. A copy of the form letter was included as an exhibit to the complaint, and it showed that the name of the addressee was “Gerald Campbell [][] All [Ajngels Preschool.” However, according to the complaint, the street address listed was that of the parent in question. The form letter purported to notify Mr. Campbell: “Situation stabilized—case closed.” It also thanked Mr. Campbell for “[his] report” and “diligence in looking out for the safety of children . . . .” When this information was received by the parent, there could
On May 13, 2010, defendants demurred to the complaint on the grounds that plaintiffs failed to state a cause of action against the County under section 815.6 and that the County employee was immune from liability under section 821.6. On July 1, 2010, at the hearing of the demurrer, the trial court agreed that the employee was immune under section 821.6 because his actions occurred in the course of an official investigation of abuse or neglect. Further, because the employee was immune, the trial court concluded that pursuant to section 815.2, subdivision (b), the County was not liable. The demurrer was therefore sustained without leave to amend and the action was dismissed.
Plaintiffs’ timely appeal followed.
DISCUSSION
I. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] 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: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985)
II. No Direct Liability of the County
We begin with the alleged liability of the County. The complaint purports to state a cause of action for public entity liability based on breach of
Preliminarily, we note the basic rule of section 815 regarding public entity liability: “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.” This means that “direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003)
Section 815.6 provides a statutory basis for direct liability of a public entity (Eastburn, supra,
Here, the enactment that allegedly created a mandatory duty on the part of the County to keep the identity of persons who report abuse or neglect
We now consider whether direct liability under section 815.6 may be premised on Penal Code section 11167, subdivision (d)(1). As noted, the first element of the analysis under section 815.6 is that the enactment must create a mandatory obligation on the part of the public entity. “First and foremost, application of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.” (Haggis v. City of Los Angeles (2000)
The second element under section 815.6 is that the mandatory statutory duty must be designed to protect against a particular kind of injury. “Second, but equally important, section 815.6 requires that the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered.” (Haggis, supra, 22 Cal.4th at p. 499.) That is, the injury must be one of the consequences which the legislative body sought to prevent through imposing the alleged mandatory duty. (Hoff v. Vacaville Unified School Dist. (1998)
Our consideration of this issue requires that we ascertain the legislative purpose of the confidentiality provision. The question is; Was subdivision (d)(1) of Penal Code section 11167 designed to protect against the kind of injury that plaintiffs suffered in this case? In answering that question, we “examine the ‘language, function and apparent purpose’ of [the] enactment . . . .” (Guzman, supra,
We begin with the words of the statute, but if the plain meaning of the statutory text is insufficient to resolve the question of its interpretation, we may turn to rules of construction and other extrinsic aids, including the
Here, the wording of the statute does not explicitly reveal the purpose of the requirement to maintain the confidentiality of the reporter’s identity. The requirement is imposed, but its purpose is not indicated. Since the plain wording does not answer our question of interpretation, it is appropriate to consider extrinsic aids such as the apparent objective to be achieved and the evils to be remedied by the entire Reporting Act. (Wotton v. Bush (1953)
Based on the above declarations of legislative intent, we infer that the essential purpose of the confidentiality provision was to foster the “cooperation” of persons who might otherwise be reluctant to report child abuse or neglect if their identities were made known. (See
However, we have found no indication in the legislative history of Penal Code section 11167, subdivision (d)(1), that its design or goal was also to prevent particular harm to those who report child abuse or neglect. Nor is that specific issue resolved by a simple reference to the legislative purpose of encouraging reporting, since the lawmakers could have reasonably concluded that such purpose was adequately served by enacting a law requiring confidentiality or by subsequently making it a crime to violate the confidentiality provisions of the Reporting Act.
The silence in the language and legislative history of the subject confidentiality requirement regarding the scope of its purpose may be contrasted to other terms in the Reporting Act in which the Legislature did provide for protection to reporters against particular harm—i.e., the provision of immunity to mandated reporters from both civil and criminal liability and a fund for attorney fees in defending lawsuits filed against reporters who carry out their responsibilities under the Reporting Act. (See Pen. Code, § 11172, subds. (a), (b) & (c).)*
In passing, we note that the Legislature was not silent on the issue of whether a party may maintain a civil action for damages against a mandated reporter for violation of the duty to report child abuse under the Reporting Act.
We mention the above statements of legislative intent because they arguably shed a ray of further light on our present inquiry. They highlight the fact that the Legislature was careful to articulate its intent, and the implications thereof, where doing so was helpful in furthering the goal of protecting children from abuse. That careful approach is seen in the Legislature’s express recognition of existing case law that had permitted a cause of action premised on breach of the duty to report abuse and the clarification that the enactment or amendment was not intended to abrogate such case law. When it wanted to further the goal of protecting children from abuse by specifying
For the reasons discussed above, we conclude that the confidentiality provision set forth in Penal Code section 11167, subdivision (d)(1), was enacted to foster cooperation and to encourage reporting. (See Stats. 1980, ch. 1071, § 5, p. 3425 [“The new provisions are designed to foster cooperation between child protective agencies and other persons required to report.”].) Its precise goal was to encourage reporting by mandating confidentiality, not to protect against particular types of harm that may befall those who report abuse if their identity became known.
m. Immunity of County Employee
The complaint also alleged that the County employee who investigated the reported neglect, Xiong Pha, breached a duty of care owed to plaintiffs by negligently or otherwise wrongfully disclosing the identity of the reporter. Under section 820, subdivision (a), “[e]xcept as otherwise provided by statute . . . , a public employee is liable for injury caused by his act or omission to the same extent as a private person.” The trial court held that the County employee was immune from such liability pursuant to section 821.6 because the alleged wrongdoing occurred in the course of an official investigation of child abuse or neglect. We agree with that conclusion.
Section 821.6 provides that a public employee “is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” The statute has been given an expansive interpretation to further the rationale for the immunity, which is to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits. (Gillan v. City of San Marino (2007)
In Kayfetz v. State of California (1984)
Applying the broad interpretation of section 821.6 reflected in the above precedents to the present case, we have no doubt that the County employee was immune. It is clear from the content of the form letter sent by the County employee entitled, “Emergency Response Notice of Referral Disposition” that it was directly related to the investigative process, since its express purpose was to notify the person making the report of the result and disposition of the investigation. In essence, it was the last official act of the investigative process. Moreover, the investigating agency was required by statute to inform the person reporting the child abuse or neglect “of the results of the investigation and of any action the agency is taking with regard to the child or family.” (Pen. Code, § 11170, subd. (b)(2).) That was precisely what the letter or notice purported to do. Although it was unfortunately sent to the wrong address and thereby breached the confidentiality requirement by divulging Mr. Campbell’s identity, it was clearly an action within the scope of the employee’s employment that was taken in connection with the investigation of alleged child neglect. Therefore, the employee was immune from liability pursuant to section 821.6.
The judgment of dismissal is affirmed. Costs on appeal are awarded to defendants.
Levy, Acting P. J., and Poochigian, J., concurred.
Notes
Under this statute, disclosure of the reporter’s identity may “only” be made to certain enumerated agencies or persons, or when the reporter waives confidentiality or the court orders disclosure. (Pen. Code, § 11167, subd. (d)(1).)
Unless otherwise indicated, all statutory references are to the Government Code.
If plaintiffs’ allegations are true, as we must presume on demurrer, then plaintiffs have suffered economic damage as a consequence of defendant’s violation of law. However, to the extent our opinion has highlighted a wrong without a remedy, we point out that liability against a public entity pursuant to section 815.6 is entirely a legislative matter. It is the Legislature’s sole prerogative to decide whether or not to amend or clarify the Reporting Act to protect against this type of harm in future cases.
Under the Reporting Act, certain persons are mandated reporters. (Pen. Code, §§ 11165.7, 11166, subd. (a).) That was the case with Mr. Campbell, due to the nature of his job as a licensed child care provider. (Pen. Code, § 11165.7, subd. (a)(10).)
The complaint also refers to Civil Code section 1798.24. Plaintiffs’ appeal fails to discuss this statute or make any cogent argument for its applicability here. We treat the issue as abandoned. Further, we note that Civil Code section 1798.24 is not applicable to local agencies such as counties. (Civ. Code, § 1798.3, subd. (b)(4).)
We distinguish direct from vicarious liability. A public entity may be vicariously liable for the act or omission of its employee acting in the scope of employment as provided at section 815.2, subdivision (a). However, the public entity is not vicariously liable if the employee is immune from liability. (§ 815.2, subd. (b).)
Additional provisions of the Reporting Act that address confidentiality are as follows: Penal Code section 11167, subdivision (d)(2), provides: “No agency or person listed in this subdivision shall disclose the identity of any person who reports under this article to that person’s employer, except with the employee’s consent or by court order.”
Penal Code section 11167, subdivision (e), states: “Notwithstanding the confidentiality requirements of this section, a representative of a child protective services agency performing an investigation that results from a report of suspected child abuse or neglect made pursuant to Section 11166 or Section 11166.05, at the time of the initial contact with the individual who is subject to the investigation, shall advise the individual of the complaints or allegations against him or her, in a manner that is consistent with laws protecting the identity of the reporter under this article.”
Penal Code section 11167.5, subdivisions (a) and (b), provide that the reports required by the Reporting Act are “confidential” and may only be disclosed to specified agencies or persons.
Finally, Penal Code section 11167.5, subdivision (a), enforces confidentiality with criminal sanctions: “Any violation of the confidentiality provided by this article is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred dollars ($500), or by both that imprisonment and fine.”
Courts apply this first element rather strictly, and generally find a mandatory duty only if the enactment imposes the duty and provides implementing measures or requires specific conduct. (Guzman, supra,
This criminal sanction was added in 1983. (Stats. 1983, ch. 1082, § 1, p. 3866.)
Whether the purpose of fostering the reporting of abuse would be better served by also seeking to protect reporters from particular types of harm—which would thereby bring the mandatory duty of Penal Code section 11167, subdivision (d)(1), within the purview of Government Code section 815.6—was a policy decision for the Legislature.
The main substantive provisions of current Penal Code section 11172 were included in the 1980 reenactment of the Reporting Act (Stats. 1980, ch. 1071, § 4, pp. 3420, 3424), with the exception of present subdivision (c), which was added in 1984 (Stats. 1984, ch. 1718, § 3, p. 6225).
Although we compare these two sections of the Reporting Act because both involve a form of protection for reporters, we are not suggesting that Penal Code section 11172 would be a basis for liability under Government Code section 815.6. We do not address that question here.
We recognize that the test is not whether the enactment manifests the intent to create a private cause of action, but whether it created a mandatory duty to protect against a particular type of harm. (Haggis, supra,
Our review of the legislative purposes of two related confidentiality provisions within the Reporting Act does not alter our conclusion. One such provision was the addition in 1983 of Penal Code section 11167.5, which among other things extended confidentiality to the reports of child abuse and made it a crime to violate the confidentiality provisions of the Reporting Act. (Stats. 1983, ch. 1082, § 1, p. 3866.) In addition to obviously furthering the goal of encouraging reporting, the only specific purpose mentioned in the legislative history of this enactment (referred to as Assem. Bill No. 607 (1983-1984 Reg. Sess.)) was that it would bring state laws regarding confidentiality in child abuse reporting up to federal standards to assure the continuation of federal funding under the federal Child Abuse and Prevention Treatment Act, 42 United States Code Service, section 5101 et seq. (See, e.g., Assemblyman Frank Vicencia, author of Assem. Bill No. 607 (1983-1984 Reg. Sess.), letter to Governor Deukmejian, Sept. 13, 1983, urging its passage based on the federal funding issue.)
The other measure addressing confidentiality was a 1986 amendment to the Reporting Act that prohibited specified agencies and persons authorized to receive information regarding reports of child abuse from disclosing the identity of a reporter of child abuse to the reporter’s employer, except with the employee’s consent or by court order. (Stats. 1986, ch. 1289, § 3, p. 4538, referred to as Assem. Bill No. 1981 (1985-1986 Reg. Sess.).) It also specified that when internal procedures exist within an organization to facilitate the reporting of abuse, such internal procedures shall not require any employee required to report child abuse to disclose his or her identity to the employer. (Ibid.) These added requirements are presently found at Penal Code section 11167, subdivision (d)(2), and section 11166, subdivision (i)(2). The essential purpose of the amendment, as described in legislative committee reports prior to its passage, as well as in statements by the bill’s author, was “to enhance the reporting process and remove obstacles, which might discourage employees from reporting instances of child abuse.” (Sen. Com. on Judiciary, Rep. on Assem Bill No. 1981 (1985-1986 Reg. Sess.) June 23, 1986; see, e.g., Sen. Rules Com., Rep. on Assem. Bill No. 1981 (1981-1982 Reg. Sess.) June 18, 1986; Assemblyman Norman S. Waters, author of Assem. Bill No. 1981 (1981-1982 Reg. Sess.), letter to Governor Deukmejian, Aug. 25, 1986.) Although it also brought about an incidental benefit of helping to prevent the occurrence of reprisals against employees (the author’s letter to the Governor mentioned that one such incident had occurred), it is clear that the principal purpose and intent of the measure was simply to remove an obstacle that might
There are risks of harm to those who report abuse. In addition to the economic harm suffered by plaintiffs in this case, a person reporting abuse could become the subject of various sorts of threats or reprisals. The question of whether to protect against that risk of harm pursuant to section 815.6, and whether to do so in connection with the statutory requirement that public entities and public employees keep the reporter’s identity confidential, was (and is) a matter for the Legislature to decide.
As a result of the employee’s immunity, the County is not vicariously liable for the employee’s conduct. (§ 815.2, subd. (b).)