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All Angels Preschool/Daycare et al v. County of Merced et al


July 11, 2011


APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge. (Super. Ct. No. CV000605)

The opinion of the court was delivered by: Kane, J.



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).)*fn1 In this case, defendant County of Merced (the County) and its employee, defendant Xiong Pha, allegedly violated that duty of confidentiality by disclosing to a parent that plaintiff Gerald Campbell, her child's preschool operator, made a report accusing her of child neglect. Although the matter was closed after a brief investigation, the parent was upset by Mr. Campbell's report and removed her children from the preschool run by plaintiffs Mr. Campbell and Antoinette Searle, causing the preschool to lose income. Plaintiffs filed a complaint against defendants for damages allegedly caused by defendants' breach of the statutory duty to keep the reporter's identity confidential. Defendants demurred on several grounds, including that the County was not liable under Government Code*fn2 section 815.6 (for breach of mandatory duty) and that its employee was immune from liability under section 821.6. The trial court sustained the demurrer without leave to amend. Plaintiffs appealed, arguing the complaint set forth a viable cause of action.

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 the County is not liable under section 815.6 because the Legislature, in enacting the subject confidentiality provision, did not intend to protect against the type of harm suffered by plaintiffs in this case.*fn3 Additionally, we agree with the trial court that the public employee was immune from liability under section 821.6. The judgment is accordingly affirmed.


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,*fn4 contacted the Child Protective Services department of the County to report an incident of apparent child neglect by the parent of one of the children attending the Preschool. Mr. Campbell was instructed to submit a Department of Justice form entitled, "SUSPECTED CHILD ABUSE REPORT," which he promptly did. After a brief investigation, the County employee/social worker assigned to the case, Xiong Pha, determined that the situation had stabilized and the case was closed. However, in the course of his investigation, Xiong Pha disclosed to the parent who was under investigation that Mr. Campbell was the person who had filed the report against her.

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 [A]ngels 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 be no doubt in the parent's mind that Mr. Campbell had filed the report of child neglect to the County agency handling child protective services. As a result of that disclosure, the parent pulled her children out of the Preschool, resulting in a loss of income to plaintiffs' Preschool business. The complaint for damages was framed in terms of "negligence" based on violation of a mandatory statutory duty to keep the reporter's identity confidential.

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.


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) 39 Cal.3d 311, 318.)

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 mandatory statutory duty under section 815.6.*fn5 It is appropriate at this point in our discussion to review the relevant principles of public entity liability under that provision.

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) 31 Cal.4th 1175, 1183 (Eastburn), italics added.)*fn6

Section 815.6 provides a statutory basis for direct liability of a public entity (Eastburn, supra, 31 Cal.4th at p. 1180), and states as follows: "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." As is apparent from the statutory language, there are three elements necessary to establish the liability of a public entity under section 815.6: (1) A mandatory duty imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury that the plaintiff suffered; and (3) the plaintiff's injury was proximately caused by the public entity's failure to discharge its mandatory duty. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898 (Guzman); de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 256-257.)

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 confidential was Penal Code section 11167, subdivision (d)(1). That provision states as follows: "The identity of all persons who report under this article shall be confidential and disclosed only among agencies receiving or investigating mandated reports, to the prosecutor in a criminal prosecution or in an action initiated under Section 602 of the Welfare and Institutions Code arising from alleged child abuse, or to counsel appointed pursuant to subdivision (c) of Section 317 of the Welfare and Institutions Code, or to the county counsel or prosecutor in a proceeding under Part 4 (commencing with Section 7800) of Division 12 of the Family Code or Section 300 of the Welfare and Institutions Code, or to a licensing agency when abuse or neglect in out-of-home care is reasonably suspected, or when those persons waive confidentiality, or by court order." (Pen. Code, § 11167, subd. (d)(1).)*fn7

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) 22 Cal.4th 490, 498 (Haggis).) Penal Code section 11167, subdivision (d)(1), clearly meets this criterion. It requires that the identity of the reporter "shall be confidential," and it implements that confidentiality requirement by providing that the person's identity be "disclosed only" to particular agencies or persons listed in the statute, unless there is either a waiver of confidentiality or a court order compelling disclosure. (Pen. Code, § 11167, subd. (d)(1), italics added.)*fn8

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) 19 Cal. 4th 925, 939.) "Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment 'confers some benefit' on the class to which plaintiff belongs is not enough; if the benefit is 'incidental' to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6. [Citation.]." (Haggis, supra, at p. 499.) "In every case, '[t]he controlling question is whether the enactment at issue was intended to impose an obligatory duty to take specified official action to prevent particular foreseeable injuries, thereby providing an appropriate basis for civil liability. [Citation.]' [Citation.]" (Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1239.)

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, 46 Cal.4th at p. 898.) "It is well established that statutes must be given a reasonable construction that conforms to the apparent purpose and intention of the law makers [citations], and the various parts of the statutory enactment must be harmonized by considering the particular clause in the context of the whole statute." (Nunn v. State of California (1984) 35 Cal.3d 616, 624-625.)

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 apparent object to be achieved, the evils to be remedied, and the statutory scheme of which the statute is a part. (See, e.g., Mejia v. Reed (2003) 31 Cal.4th 657, 663 [when the plain meaning of the statutory text is insufficient to resolve the question of its interpretation, the courts may turn to rules or maxims of construction]; Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1153-1154 [when a statute is susceptible to more than one reasonable interpretation, courts look to extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, and the statutory scheme of which the statute is a part].)

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) 41 Cal.2d 460, 467 ["'the objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration in its interpretation'"].) On these points, we know that the overriding purpose of the Reporting Act, of which Penal Code section 11167 is an integral part, is "to protect children from abuse and neglect." (Pen. Code, § 11164, subd. (b).) Moreover, in 1980, the Legislature reenacted the Reporting Act in an expanded and clarified form, and expressly declared its purpose for doing so: "In reenacting the child abuse reporting law, it is the intent of the Legislature to clarify the duties and responsibilities of those who are required to report child abuse. The new provisions are designed to foster cooperation between child protective agencies and other persons required to report. Such cooperation will insure that children will receive the collective judgment of all such agencies and persons regarding the course to be taken to protect the child's interest." (Stats. 1980, ch. 1071, § 5, p. 3425.) The reenacted version of the Reporting Act included, as a new provision, the substance of the confidentiality provision that is now contained in subdivision (d)(1) of Penal Code section 11167. (Stats. 1980, ch. 1071, § 4, p. 3423.)

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 65 Ops.Cal.Atty.Gen. 335 (1982) pp. 10, 20 [so holding].) That is, it appears that the Legislature sought to encourage the full reporting of abuse or neglect by creating a shield of confidentiality behind which the reluctant would be more willing to come forward. We note that such confidentiality is not illusory; it is enforced in the Reporting Act by criminal sanctions against those persons who violate it. (Pen. Code, § 11167.5, subd. (a).)*fn9

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.*fn10

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).)*fn11 In the latter provisions, the Legislature was clear and explicit in seeking to protect reporters from particular harm--namely, the harm of civil damages, criminal liability and the financial hardship of having to pay attorney fees to defend lawsuits due to reporting abuse.*fn12 In light of the specificity used in Penal Code section 11172 to describe the harm being protected against in that provision, it is reasonable to assume that if the Legislature, in enacting Penal Code section 11167, subdivision (d)(1), had a similar concern of protecting reporters of abuse from particular harm, that concern and the harm being prevented would have been mentioned in the proposed bill, the committee reports, or other legislative history materials, if not in the language of the statutory provision itself. The Legislature's silence on that question, in contrast to its specificity in Penal Code section 11172, suggests a more limited purpose.

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.*fn13 In connection with the 1980 reenactment of the Reporting Act (of which the subject confidentiality provision was an integral part), the Legislature declared: "In repealing Sections 11161.5, 11161.6, and 11161.7 of, and in reenacting the [Reporting Act] in Article 2.5 (commencing with Section 11165) of Chapter 2 of Title 1 of Part 4 of, the Penal Code, it is not the intent of the Legislature to alter the holding in the decision of Landeros v. Flood (1976) 17 Cal.3d 399, which imposes civil liability for a failure to report child abuse." (Stats. 1980, ch. 1071, § 5, p. 3425, italics added.) In 2000, concerning an amendment to several sections of the Reporting Act, the Legislature similarly declared: "This act is not intended to abrogate the case of Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180." (Stats. 2000, ch. 916, § 34, italics added.) In Alejo v. City of Alhambra, an appellate court held there was potential liability against a public entity where its employee, a police officer, was a mandated reporter of child abuse under the Reporting Act, and had failed to comply with his mandatory duties to report and investigate an incident of child abuse. (Alejo, supra, at pp. 1186-1188.) Thus, in both of these instances, the Legislature recognized case law that had permitted a civil suit for injury to a child where there was a breach of the mandated reporter's duty to report child abuse. That, of course, makes perfect sense when we recall that the overriding purpose of the Reporting Act, including the mandate to report, is to protect children from abuse and neglect. (Pen. Code, § 11164, subd. (b).)

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 the scope of its intent, which in the instances noted above was to ensure the viability of certain causes of action, it did so. Against that backdrop, we may refine the point we made earlier above: That is, if the Legislature had intended the confidentiality provision (in Pen. Code § 11167, subd. (d)(1)) to protect reporters from suffering particular types of harm, it would have so indicated--especially if it thought that by protecting against such particular harm it would significantly further the purpose of protecting children from abuse. Yet it did not indicate any intention to protect reporters against harm.

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.*fn14 Although the risk of harm to those who report abuse or neglect is undoubtedly minimized by such confidentiality, that appears to be an incidental benefit of the confidentiality provision, not its essential purpose.*fn15 Therefore, we conclude that the County is not liable under section 815.6. (Haggis, supra, 22 Cal.4th at p. 499 [if the benefit is "'incidental'" to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6].)

III. 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) 147 Cal.App.4th 1033, 1043, 1048; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.) Acts by a public employee that are preparatory to a potential institution of judicial proceedings, including acts in the course of an investigation of alleged wrongdoing, are covered by the statutory immunity. (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1547; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 467-468 [immunity covers acts in course of investigating child abuse]; Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-1210.) "Because investigation is 'an essential step' toward the institution of formal proceedings, it 'is also cloaked with immunity.'" (Amylou R. v. County of Riverside, supra, at p. 1210.) Furthermore, the immunity under section 821.6 extends to communications made by the employee that have a connection with the investigation or prosecution process. (Ingram v. Flippo, supra, at pp. 1292-1293; Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1499.) "Acts undertaken in the course of an investigation, including press releases reporting the progress or results of the investigation, cannot give rise to liability." (Gillan v. City of San Marino, supra, at p. 1048.)

In Kayfetz v. State of California (1984) 156 Cal.App.3d 491, the Board of Medical Quality Assurance and its diversion program administrator published an official report concerning the plaintiff's participation in a drug rehabilitation program. The plaintiff sued, alleging that the state and its employee violated required confidentiality. The Court of Appeal concluded that the employee was immune under section 821.6 because the report was made in the course of an administrative proceeding that had not been dismissed, and its publication was authorized by statute as a part of the ongoing proceeding and diversion program. (Kayfetz v. State of California, supra, at pp. 496-498.)

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.*fn16


The judgment of dismissal is affirmed. Costs on appeal are awarded to defendants.

WE CONCUR: Levy, Acting P.J. Poochigian, J.

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