Lead Opinion
Opinion
In 2007, Gilton Pitre was paroled from state prison. Before his release, the State Department of Mental Health (DMH) assessed
Plaintiff sued DMH and two of its acting directors, claiming the death was caused by defendants’ failure to discharge mandatory duties imposed by the SVPA. The superior court overruled a demurrer. Defendants petitioned for a writ of mandate. The Court of Appeal issued an order to show cause, and concluded that while the SVPA imposed a mandatory duty on defendants, the alleged breach was not the proximate cause of Gomez’s death. We affirm.
I. BACKGROUND
A. The SVPA
The SVPA authorizes the involuntary civil commitment of a person who has completed a prison term but is found to be a sexually violent predator (SVP). (Reilly v. Superior Court (2013)
Section 6600, subdivision (a)(1) defines an SVP as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.”
If an inmate is referred for full evaluation, “[DMH] shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by [DMH], to determine whether the person is [an SVP] . . . .” (§ 6601, subd. (c).) The scope of the evaluation is codified in some detail. “The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (Ibid.) Moreover, “the person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director of Mental Health. If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of Mental Health shall forward a request for a petition for commitment . . .” to the designated counsel of the county in which the inmate was convicted.
If the evaluators disagree about whether the person meets the criteria, “the Director of Mental Health shall arrange for further examination of the person by two independent professionals . . . .” (Former § 6601, subd. (e).) “[A] petition to request commitment . . . shall only be filed if both independent professionals . . . concur that the person meets the criteria for commitment . . . .” (§ 6601, subd. (f).) When that requirement is met, “the Director of Mental Health shall forward a request for a petition to be filed for commitment . . .” to the designated counsel of the county. (Former § 6601, subd. (h).) If counsel concurs with the recommendation, “a petition for commitment shall be filed in . . . superior court. . . .” (§ 6601, subd. (i).) The court thereafter “shall review the petition and shall determine whether there is probable cause to believe that the individual ... is likely to engage in
The inmate is “entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports.” (§ 6603, subd. (a).) There can be no civil commitment under the SVPA unless the trier of fact determines beyond a reasonable doubt that the person is an SVP. (§ 6604.) A person found to be an SVP “shall be committed for an indeterminate term to the custody of [DMH] for appropriate treatment and confinement in a secure facility . . . .” (Ibid.) Annual examinations are conducted to assess whether the person is still likely to engage in sexually violent criminal behavior if discharged. (§ 6605, subd. (a).)
B. Factual and Procedural History
On demurrer review, we accept the truth of material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. We may also consider matters subject to judicial notice. (Evans v. City of Berkeley (2006)
Plaintiff sued, asserting claims for breach of mandatory duty (Gov. Code, § 815.6), negligence, and negligence per se. She also sought a writ of mandate requiring defendants to comply with SVPA evaluation procedures (Code Civ. Proc., § 1085). She claimed that if defendants had conducted the full evaluation required by statute, “any two competent, ethical evaluators would have determined [Pitre] met the criteria for civil commitment,” based
Had there been two positive findings on Pitre’s SVP status, DMH was obligated to submit a request for a civil commitment to designated counsel. Plaintiff claimed that a petition has been filed in every case referred by DMH following two positive evaluations. Had a petition been filed, Pitre’s case would have gone to trial, the complaint alleged, and “he would have been civilly committed.”
Defendants demurred, arguing that plaintiff failed to state a cause of action and that they were immune from liability.
II. DISCUSSION
A. Sovereign Immunity and Duty
Traditionally, the doctrine of sovereign immunity shielded states from both suit and liability. (Franchise Tax Bd. v. Superior Court (2011)
Even when a duty exists, California has enacted specific immunity statutes that, if applicable, prevail over liability provisions. (Creason v. Department of Health Services (1998)
Courts have delineated what is necessary to establish a mandatory duty. “First and foremost, ... the enactment at issue [must] 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)
Whether an enactment imposes “a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.” (Creason, supra,
We have recognized that while the “exercise of discretion may often mark the dividing line between a duty that is mandatory and one that is not [citation], that line is sometimes difficult to draw.” (Guzman, supra,
The applicable statutory scheme, the Hereditary Disorders Act (Health & Saf. Code, § 124975 et seq.), provided; “[DHS] shall establish a genetic disease unit. . . ,” and “[t]he unit shall promote a statewide program of . . . testing . . . and shall have the responsibility of designating tests and regulations to be used in executing this program. [¶] The . . . tests . . . shall be in accordance with accepted medical practices and shall be administered to each child bom in California once the department has established appropriate regulations and testing methods.” (Id., § 125000, subd. (a).) DHS thus had a mandatory duty to establish a neonatal testing program. However, the particular standards for testing and the protocol for reporting were left to its discretion and judgment.
Creason and similar cases illustrate the following distinction. A mandatory duty is created only when an enactment requires an act that is clearly defined and not left to the public entity’s discretion or judgment. (County of Los Angeles v. Superior Court (2012)
Applying these principles here, we hold that the complaint sufficiently alleges a breach of DMH’s mandatory duty to conduct an evaluation with two evaluators. The SVPA specifies that an inmate referred by DOC “shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director of Mental Health.” (Former § 6601, subd. (d), italics added.) This language is clear, conferring no discretion as to the number of evaluators. (Haggis, supra,
Defendants concede they are obliged to “designate two mental health professionals to conduct the ‘full evaluation.’ ” Citing the discretion woven throughout the SVPA process, however, they argue that the obligation does not amount to a mandatory duty. Defendants note, for example, that the
The only other mandatory duty identified in the complaint is an alleged obligation on the part of DMH to conduct in-person examinations of all referred inmates. The Court of Appeal properly rejected this claim. The SVPA states that after an inmate is referred for a full evaluation, DMH “shall evaluate the person in accordance with a standardized assessment protocol” including specific risk factors. (§ 6601, subd. (c), italics added.) However, nowhere does the statute impose a specific requirement for in-person examination of referred inmates. As Guzman explained, a mandatory duty must be based on an enactment phrased in explicit and forceful language. (Guzman, supra, 46 Cal.4th at pp. 910-911.) Uncodified details of the SVP evaluation protocol are left to DMH’s judgment and discretion.
As to the second element of Government Code section 815.6, there is no dispute that harm to the public caused by an SVP’s release is the kind of risk the SVPA was designed to forestall.
B. Proximate Causation
If the first two elements set out in Government Code section 815.6 are satisfied, “the next question is whether the breach . . . was a proximate cause of the plaintiff’s injury.” (Guzman, supra,
“Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint. . . . Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.” (Weissich v. County of Marin (1990)
The Court of Appeal below relied on a line of cases decided at the pleading stage. All held that proximate cause was not established when a governmental defendant’s failure to act allegedly caused injury, but the chain of causation included discretionary determinations for which no liability could be imposed. First in this line is Whitcombe v. County of Yolo (1977)
In State of California v. Superior Court (1984)
“Moreover, he cannot act unilaterally to suspend or revoke a license; rather, suspension or revocation can occur only following a formal adjudicatory process at which accusations have to be proved by the Department of Real Estate .... [Citation.] In addition, had the accusations been sustained,
The third case in this line of authority is Fleming v. State of California (1995)
After reviewing these cases, the Court of Appeal below concluded that “the distance between defendant’s alleged breach of a mandatory duty and plaintiff’s injuries is too [great] to support a Government Code section 815.6 action.” Even if DMH had conducted a full evaluation by appointing a second evaluator, the second evaluation would have had to disagree with the first and conclude that Pitre was an SVP; two independent evaluators would then have had to agree that he was an SVP; the designated counsel would have had to make a discretionary decision to file a civil commitment petition; and the trial court would have to have made a discretionary probable cause determination. Ultimately, the trier of fact would have had discretion to deny the petition. We agree with the court below that under the facts pleaded here, proximate cause is absent as a matter of law.
The only mandatory duty established by the complaint’s allegations is the duty to use two evaluators; the details of the manner in which each evaluator conducts the review are discretionary, so long as they include the statutory criteria. Thus, no actionable breach of duty can be found in the single evaluator’s failure to conclude that Pitre was an SVP. Nor can plaintiff hypothesize a positive finding by that evaluator as a link in the chain of proximate causation. Instead, she must posit a subsequent unbroken series of
The policy considerations bearing on the question of proximate cause are also a considerable obstacle to plaintiff’s claim. It can always be argued that governmental discretion could only have reasonably been exercised in one way. Yet such arguments turn on questions of degree, and indeed are in tension with the very idea of discretion. We do not hold that the intervention of any discretionary decision between breach of a mandatory duty and a subsequent injury will always foreclose a finding of proximate cause.
However, the breach of duty in this case did not result in the absence of any evaluation, or the failure to act on evaluations as required by law. Plaintiff’s claim, while premised on the breach of a mandatory duty, is in effect a complaint about how the evaluation of Pitre was performed. We note that if the review conducted by the single DMH evaluator had been performed by DOC at the previous stage of the review process, Pitre would have been released without any referral to DMH, and no cause of action would lie. Under these circumstances, as a policy matter, DMH’s failure to appoint a second evaluator cannot properly be considered a proximate cause of Pitre’s
Accordingly, we conclude that plaintiff’s showing fails under both aspects of the proximate cause determination. As a matter of cause in fact it is conjectural, depending on a long series of determinations that would have been required after DMH’s breach in order for the injury to have been prevented. As a matter of policy it is problematic, because it trenches closely upon the discretionary functions of the evaluation process established by the SVPA.
Plaintiff argues that Whitcombe, Perry, and Fleming are distinguishable because none of those cases involved breach of a mandatory duty. The assertion is unsupported. The Perry court acknowledged a mandatory duty. (Perry, supra,
III. CONCLUSION
We affirm the Court of Appeal’s conclusions. The SVPA imposed a mandatory duty upon defendants to designate two evaluators to assess all persons referred by the DOC. However, plaintiff could not establish that the alleged breach of this duty was a proximate cause of Gomez’s death. As the Court of Appeal concluded, plaintiff is free to pursue a writ of mandate requiring defendants to comply with their mandatory duties under the SVPA.
Notes
Unspecified statutory references are to the Welfare and Institutions Code.
“Sexually violent offense” is defined in section 6600, subdivision (b).
Citations to former SVPA sections are to the law as it existed in 2007, as amended by Proposition 83, approved by the voters on November 7, 2006. (1 Stats. 2006, p. A-320 et seq., 73D West’s Ann. Welf. & Inst. Code; see McKee, supra,
DMH is now petitioner and defendant State Department of State Hospitals, and Department of Corrections (DOC) is now the Department of Corrections and Rehabilitation. Here we use the state entities’ former names as set out in the applicable 2007 version of the SVPA.
Each county’s board of supervisors is required to designate either the district attorney or the county counsel to pursue SVPA civil commitment actions. (§ 6601, subd. (i).)
On our own motion, we take judicial notice of the fact that Pitre was convicted in 2010 for the rape and murder of Gomez. (Evid. Code, § 452.) He received consecutive terms of 75 years to life and 25 years to life, plus 10 years for two prior conviction enhancements.
Defendants invoked Government Code section 845.8, subdivision (a), which provides that a public entity or employee is not liable for “[a]ny injury resulting from determining whether to parole or release a prisoner . . . .”
Plaintiff contends that permitting DMH to merely review available records would duplicate the DOC screening mandated by section 6601, subdivision (b). Not so. Unlike the DOC screening, DMH’s evaluation must be conducted by practicing psychologists and/or psychiatrists and must consider the factors identified in section 6601, subdivision (c).
The complaint relies on an uncodified statute enacted in 2008, in which the Legislature stated, “The [SVP] civil commitment program requires clinical evaluations of potential [SVPs] for possible commitment . . . .” (Stats. 2008, ch. 601, § 1, subd. (b), pp. 4293, 4294, italics added.) Even assuming that a mandatory duty could arise from an uncodified legislative declaration, and even if the 2008 legislation were relevant to our construction of the 2007 version of the SVPA, the reference to “clinical evaluations” is ambiguous. It is not clear whether the phrase refers to in-person assessments, or merely evaluations by practicing clinicians.
An uncodified statement accompanying the SVPA’s enactment in 1996 declared: “The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once
“The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society. “The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing threat to society. The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes.” (Stats. 1995, ch. 763, § 1, p. 5921; see Hubbart v. Superior Court (1999)
The 2006 SVPA amendments reflect enhanced concern with protection of the public from sexually violent predators. (See McKee, supra,
Proximate cause is also a necessary element of plaintiff’s negligence claims. (6 Witkin, Summary of Cal. Law, supra, Torts, § 1181 et seq., p. 548 et seq.; Evid. Code, § 669, subd. (a)(2) [negligence per se].)
In cases where concurrent independent causes contribute to an injury, we apply the “substantial factor” test of the Restatement Second of Torts, section 423, which subsumes traditional “but for” causation. This case does not involve concurrent independent causes, so
As noted above, Government Code section 845.8, subdivision (a), immunizes public employees from liability for “[a]ny injury resulting from determining whether to parole or release a prisoner . . . .”
The degree of discretion conferred by the governing statutes may be a relevant factor. We note that the discretion possessed by the courts in Whitcombe, supra,
Because of our conclusion on the proximate cause issue, we do not reach the question whether the immunity conferred by Government Code section 845.8, subdivision (a) would extend to DMH’s failure to employ two evaluators.
Plaintiff’s reliance on cases such as Landeros v. Flood (1976)
Concurrence Opinion
Concurring. — I concur in the court’s decision affirming the Court of Appeal’s judgment ordering the superior court to sustain
I
In a typical personal injury action, where the causal relationship between the breach of duty and the injury is relatively plain, “it suffices to plead causation succinctly and generally.” (Bockrath v. Aldrich Chemical Co. (1999)
In the present case, the causal connection between the State Department of State Hospitals’s failure to employ two mental health professionals to evaluate Gilton Pitre as a potential sexually violent predator (SVP), and Pitre’s subsequent rape and murder of plaintiff’s sister, is by no means plainly apparent. Both for this reason and because plaintiff’s cause of action under Government Code section 815.6 is a statutory one requiring every material fact to be pleaded with particularity (Bockrath v. Aldrich Chemical Co., supra,
Viewing the complaint in this light, I agree with the majority its allegations of cause in fact were overly speculative and conjectural. (Maj. opn., ante, at pp. 355-356.) Plaintiff alleges in a conclusory manner that had the agency employed two clinicians to perform a “full evaluation,” rather than a single professional to do a “paper screening],” the two evaluators, on reviewing Pitre’s criminal record and seeing the sadistic nature of his prior sex offense, would have determined he qualified as an SVP. But the complaint fails to
To the extent plaintiff was unable to learn, before filing her complaint, what criminal records were and were not reviewed by the sole evaluator, but had reason to believe identifiable critical information was omitted from his screening that would have been before the required two evaluators pursuant to the agency’s “standardized assessment protocol” (Welf. & Inst. Code, § 6601, subd. (c)), she could have alleged such particular critical omissions on information and belief. (See 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 398, pp. 537-538.) If plaintiff had no information and belief with regard to particular critical omissions from the screening materials, as indeed may have been the case, she lacked an adequate basis for claiming the agency’s choice of a “screen[ing]” by one professional, instead of an “evaluation” by two, factually caused the agency’s failure to refer Pitre to the designated county attorney for an SVP petition. (See Welf. & Inst. Code, § 6601, subd. (d).)
The complaint’s deficiencies regarding the hypothetical causative chain’s first step, the lack of an evaluation by two mental health professionals, are compounded by its treatment of the final step, Pitre’s hypothetical commitment as an SVP. The allegation that Pitre “would have been civilly committed” is entirely conclusory, accompanied by no particularized facts to show that a unanimous jury would have determined, beyond a reasonable doubt, that Pitre was'an SVP. (See Welf. & Inst. Code, §§ 6603, subd. (f), 6604.)
The complaint may be read to claim that even the filing of a commitment petition would have prevented the injury because most such petitions allegedly go to trial and, had a petition been filed and Pitre held for trial past his scheduled release date, “he would not have had the opportunity to murder Alyssa only four days later.” But this type of coincidental causation — -an allegation that some breach created an opportunity for an injury to occur, without increasing the risk of that injury occurring — is insufficient. (See Rest.3d Torts, Liability for Physical and Emotional Harm, § 30 [“An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm.”]; Royal Indemnity Co. v. Factory Mutual Ins. Co. (Iowa 2010)
A plaintiff could plead factual causation in this context by alleging, on information and belief or otherwise, that through a breach of its mandatory evaluation duty the State Department of State Hospitals overlooked specific available facts regarding the potential SVP, facts so strongly indicative of mental illness and repetitive sexual predation that any decision maker would likely find the person to be an SVP. The allegations of the present complaint do not rise to that necessary level.
II
I concur in the court’s judgment on the grounds explained above. I do not, however, agree with the majority that a finding of liability in this case would contravene “policy considerations bearing on the question of proximate cause” (maj. opn., ante, at p. 356) because the hypothetical causative chain on which the agency’s liability depends — that two evaluators would have found Pitre to be an SVP, resulting in a referral to the designated county attorney, who would have filed a petition for commitment on which Pitre would have been held beyond his hypothetical release date and ultimately committed — involves discretionary decisions.
The majority cites no public policy stating the outcome of a discretionary decision may not form part of the chain of events a tort complaint hypothesizes as what would have happened but for the defendant’s breach of duty. Actual discretionary acts by public employees are protected under a public
The majority observes vaguely that proving causation through the outcome of discretionary decisions that would have occurred but for the defendant’s breach is “in tension with the very idea of discretion.” (Maj. opn., ante, at p. 356.) To be sure, the existence of decisional discretion increases the plaintiff’s burden on causation, a burden I agree plaintiff here has not met even at the pleading stage. (See pt. I, ante) But the majority cites no principle of law or public policy barring the attempt, and draws no germane factual distinction between this case and those in which such causative proof has been approved, such as Landeros v. Flood (1976)
There may be some discretionary governmental decisions so unrestricted by statutory or constitutional rules that one can say, as a matter of law, that their hypothetical outcomes could never be proven. Legislative budgeting decisions, certain sentencing choices and some conditional release determinations come to mind. But the majority makes no attempt to show the decisions involved in finding a person to be an SVP belong in this category. Indeed, the majority acknowledges these decisions are constrained by statutory factors and procedures. (Maj. opn., ante, at p. 356, fn. 14.) One might also note that the initial determination whether a person may be an SVP, and should be referred to the designated county attorney for a commitment petition, is made by mental health professionals using a protocol designed by and for such professionals. These are not the types of decisions whose outcomes can never be predicted.
While the majority refrains from expressly relying on the fact that the discretionary governmental decisions necessary for an SVP commitment
How allowing causation to be traced through hypothetical decisions that did not occur would inhibit or distort real decisionmaking when it does occur is entirely unclear. To take an example from the present facts, as long as the designated county attorney knows that the decision not to seek a commitment against a potential SVP is immunized from liability, the attorney cannot be inhibited by the possibility that, in some other case that is never presented for prosecution because the State Department of State Hospitals does not make a referral, an injured plaintiff may allege the attorney would have sought a commitment had the decision been presented.
Neither the majority nor the lower court decisions on which it relies put forward a logical ground for concluding the proof of causation in circumstances like those presented here would violate an established public policy.
Ill
For the reasons given above, I concur in the result and in part of the majority’s reasoning, but not in the majority’s conclusion that policy considerations negate proximate cause as a matter of law.
The petition of real party in interest for a rehearing was denied July 22, 2015.
The Restatement Third categorizes this rule as one limiting “scope of liability,” otherwise known as proximate cause, but acknowledges it can also be considered an instance of the lack of factual cause. (Rest.3d Torts, Liability for Physical and Emotional Harm, § 30, com. a, p. 542; see id.., ch. 6, Special Note on Proximate Cause, pp. 492-493.)