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State Department of State Hospitals v. Superior Court (Elaina Novoa)

California Court of Appeals, Second District, Third Division

October 30, 2013

THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent ELAINA NOVOA, Individually and as Personal Representative, etc., Real Party in Interest.

PETITION for writ of mandate from an order of the Superior Court of Los Angeles County No. BC487936, John L. Segal, Judge.

Kamala D. Harris, Attorney General, Kathleen Kenealy, Chief Assistant Attorney General, Pamela J. Homes and Paul F. Arentz, Deputy Attorneys General, for Petitioners.

No appearance for Respondent.

Shook, Hardy & Bacon, Chris Johnson, Patrick J. Gregory, Rachael M. Smith, Ashley Cornwall and Jared Palmer for Real Party in Interest.


This case arises out of tragic circumstances. Just four days after he was paroled from state prison, Gilton Pitre raped and killed Alyssa Gomez. Gomez’s sister, plaintiff and real party in interest Elaina Novoa, contends that Pitre was a “sexually violent predator” within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), [1] and that he should have been civilly committed pursuant to the SVPA. Plaintiff further alleges that defendants’ breach of their mandatory duties under the SVPA proximately caused her damages.

Defendants and petitioners State Department of Mental Health (Department of Mental Health) (now State Department of State Hospitals), Cliff Allenby and Stephen W. Mayberg[2] contend that the superior court erroneously overruled their demurrer to plaintiff’s operative second amended complaint (complaint). They petition for a writ of mandate directing the superior court to sustain their demurrer without leave to amend.

There are four main issues on appeal. The first is whether public entities and employees have immunity from suit under Government Code section 845.8, subdivision (a) for injuries allegedly resulting from their breach of mandatory duties. This statute provides that public entities and employees are not liable for injuries resulting from their determination of “whether to parole or release a prisoner.” (Gov. Code, § 845.8, subd. (a).) We hold that public entities and employees do not have immunity under the statute for breach of mandatory duties.

Next, we determine whether the complaint alleges sufficient facts indicating defendants breached a mandatory duty under the SVPA. We conclude the complaint alleges defendants breached their mandatory duty to designate two psychologists or psychiatrists, or one of each, to conduct a full evaluation of an inmate identified by the Department of Corrections as likely to be a sexually violent predator.

The third issue is whether defendants’ alleged breach of their mandatory duty proximately caused plaintiff’s alleged damages. We conclude plaintiff cannot establish the element of proximate causation.

The final main issue is whether plaintiff has standing to pursue a writ of mandate cause of action in superior court. Plaintiff seeks a writ compelling defendants to comply with certain mandatory duties required by the SVPA. We conclude plaintiff has standing to pursue this cause of action.

Based on our resolution of these main issues, we grant defendants’ petition in part, and deny it in part. We direct the superior court to sustain defendants’ demurrer to plaintiff’s first two causes of action because both claims include the element of proximate causation. We deny the petition, however, to the extent it seeks to compel the trial court to sustain defendants’ demurrer to plaintiff’s third cause of action for writ of mandate.


1. Summary of Allegations in the Complaint [3]

In 1996, Gilton Pitre raped and threatened to kill his female roommate. The victim was able to convince Pitre, through feigned romantic interest, to spare her life. Pitre was convicted of rape and sentenced to a determinate term in state prison.

In 2007, Pitre was released from prison on parole. Before his release, Pitre was evaluated by the Department of Mental Health to determine whether he was a sexually violent predator who should be confined in a secure facility for appropriate treatment pursuant to the civil commitment process of the SVPA.

The complaint alleges that the Department of Mental Health breached its “mandatory” duties under the SVPA to conduct a “full evaluation” of Pitre, including a duty to evaluate Pitre by two qualified professionals who are either psychiatrists or psychologists. Instead, according to the complaint, Pitre was given a less stringent review that did not comply with the statutory scheme. We shall discuss in greater detail the complaint’s allegations about the department’s alleged violations of the SVPA post.

Four days after Pitre was released from prison, he raped and murdered plaintiff’s 15-year-old sister Alyssa Gomez. The complaint alleges that had Pitre “not been unlawfully released, Alyssa would be alive today.”

The complaint sets forth causes of action for (1) breach of mandatory duty under Government Code section 815.6, (2) negligence and negligence per se, and (3) writ of mandate under Code of Civil Procedure section 1085. Plaintiff prays for compensatory and punitive damages, a writ of mandate compelling defendants to comply with the requirements of the SVPA, and declaratory and injunctive relief.

2. Procedural History

Defendants demurred to the complaint and each cause of action in that pleading on the ground that the complaint fails to state facts sufficient to constitute a cause of action. In an order dated April 15, 2013, the superior court overruled the demurrer.

Defendants filed a timely petition for writ of mandate in this court. We issued an Order to Show Cause on the petition and received additional briefing from both sides.


1. A Writ of Mandate is an Appropriate Remedy

Defendants seek a writ of mandate directing the trial court to sustain their demurrer without leave to amend. Before discussing the merits of defendants’ arguments, we first determine whether defendants may pursue a writ instead of waiting to appeal a judgment.

A writ of mandate is not available unless there is no “plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) A trial court’s order overruling a demurrer is nonappealable and is ordinarily reviewed, if at all, on appeal of a judgment. (Code Civ. Proc., § 904.1; Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1189 (Big Valley).) “Writ review of demurrer rulings is rarely granted unless a significant issue of law is raised or resolution of the issue would result in a final disposition as to the petitioner.” (Big Valley, at p. 1189.)

We are more likely to consider issuing an extraordinary writ when the defense of sovereign immunity is raised because this defense is “effectively lost if an immune party is forced to stand trial or face the other burdens of litigation.” (Big Valley, supra, 133 Cal.App.4th at p. 1189; accord County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 481 [An extraordinary writ is an appropriate remedy when the defense of sovereign immunity under Government Code section 845.8 is raised because this defense “should be speedily determined”].) We conclude that if defendants prevail on the merits of their petition, a writ of mandate is an appropriate remedy because their petition raises significant issues of law and because the resolution of those issues in their favor could result in a final disposition of the case.

2. Standard of Review

Where, as here, a writ petition challenges an order overruling a demurrer, we apply the ordinary standards of demurrer review. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) We review an order sustaining a general demurrer de novo to determine whether the pleading alleges facts sufficient to state a cause of action. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 82.)

“Regardless of the label attached to the cause of action, we examine the complaint’s factual allegations to determine whether they state a cause of action on any available legal theory.” (Doe v. Doe 1 (2012) 208 Cal.App.4th 1185, 1188.) We also examine the exhibits attached to the complaint and, to the extent facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282.)

We assume the truth of the factual allegations in the complaint, liberally construed, as well as facts that can be reasonably inferred from those expressly pleaded. (Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012) 203 Cal.App.4th 913, 919; Maxton, supra, 203 Cal.App.4th at p. 87.) We do not, however, accept as ...

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