Alejo v. Alhambra, B130088.

• Decision Date: 27 October 1999
• Docket Number: No. B130088.,B130088.
• Citation: 89 Cal.Rptr.2d 768,75 Cal.App.4th 1180
• Court: California Court of Appeals Court of Appeals
• Parties: Alec ALEJO, a Minor, etc., Plaintiff and Appellant, v. CITY OF ALHAMBRA, Defendant and Respondent.

89 Cal.Rptr.2d 768

75 Cal.App.4th 1180

Alec ALEJO, a Minor, etc., Plaintiff and Appellant, v. CITY OF ALHAMBRA, Defendant and Respondent.

No. B130088.

Court of Appeal, Second District, Division 7.

October 27, 1999.

Review Denied February 23, 2000.

Ajalat and Ajalat, Gregory M. Ajalat and Stephen P. Ajalat, Burbank, for Plaintiff and Appellant.

Leland C. Dolley, City Attorney (Alhambra), Brian A. Pierik, Camarillo, and Elizabeth R. Feffer, Los Angeles, for Defendant and Respondent.

JOHNSON, J.

In 1973, Dr. Vincent Fontana wrote a book on child abuse entitled, "Somewhere a Child Is Crying." The complaint in this case asks: "Is anyone listening?" In sustaining a demurrer to the complaint, the trial court held a city is not liable when its police officers fail to investigate and report their reasonable suspicions a child has been the victim of physical abuse and, as a result, the child suffers further abuse. We reverse.

FACTS AND PROCEEDINGS BELOW

For the purposes of this appeal, we accept as true the properly pleaded factual allegations of the complaint. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 635, 49 Cal.Rptr.2d 377, 909 P.2d 981.)

Three-year old Alec Alejo resided with his mother and her live-in boyfriend, Mike Gonzalez, in the City of Alhambra. On May 18, 1997, Hector Alejo, Alec's father, became concerned when he observed Alec had severe facial bruising to and surrounding the area of his left eye. He questioned both Alec and his mother, Jamie Clark, about the injury but their explanations did not dispel his concern.

Three days later, on the evening of May 21, 1997, Hector received a telephone call from a neighbor and close friend of Clark's, who advised Hector that Clark and Gonzalez were using drugs and Gonzalez was physically beating and abusing Alec. The caller also inquired whether Hector had seen Alec's recent "black eye".

Immediately after receiving the telephone call, Hector went to the Alhambra police department and reported to "Officer Doe"¹ his knowledge about the physical and mental abuse being inflicted upon Alec by Gonzalez. He informed the officer of Alec's black eye and the fact he had just received a telephone call alerting him Clark and Gonzalez were using drugs and Gonzalez was in the process of physically abusing Alec. Hector, concerned for his child's safety, described the location where Alec and his mother lived, offered to take the police there and requested the police immediately go and investigate the matter.

Despite receiving this report of abuse from Alec's father, the Alhambra police department and Officer Doe, without reasonable care, diligence justification or regard for Alec's safety, failed to conduct any investigation into whether Alec was being abused and failed to prepare an internal report or cross-report to other governmental agencies and offices concerning Alec's possible abuse.

Six weeks after Hector reported Alec's abuse to the Alhambra police, Alec was subjected to a severe, violent and unlawful beating by Gonzalez. This beating caused Alec serious physical injuries as well as great mental, emotional and physical suffering. As a result of this abuse, Alec has suffered total and permanent disability.

Alec brought this action against the City of Alhambra, its employee Officer Doe, and Mike Gonzalez. The complaint alleges negligence on the part of the city and Officer Doe in failing to investigate or report a reasonable suspicion of child abuse as mandated by Penal Code section 11164, et. seq.²

The city demurred on the grounds its police department and officers had no special duty to protect Alec from child abuse, the reporting and investigation of child abuse by law enforcement is a discretionary function, its police department and officers are immune from liability for their failure to act and, in any event, their failure to act was not the cause of Alec's injuries. The trial court sustained the city's demurrer without leave to amend and entered judgment dismissing the city from the action. Alec filed a timely appeal.

DISCUSSION

I. THE COMPLAINT STATES A CAUSE OF ACTION FOR NEGLIGENCE UNDER THE THEORY OF NEGLIGENCE PER SE.

For the reasons explained below, we hold Alec's complaint states a cause of action under the doctrine of negligence per se based on the Child Abuse and Neglect Reporting Act (Art. 2.5, §§ 11164-11174.3).

To state a cause of action under the negligence per se doctrine, the plaintiff must plead four elements: (1) the defendant violated a statute or regulation, (2) the violation caused the plaintiff's injury, (3) the injury resulted from the kind of occurrence the statute or regulation was designed to prevent, and (4) the plaintiff was a member of the class of persons the statute or regulation was intended to protect. (Evid.Code, § 669.)³ Only the first two elements of the negligence per se doctrine are at issue in this appeal. It is beyond dispute the mental and physical abuse 3-year-old Alec allegedly suffered at the hands of Gonzalez was exactly the type of injury the California Legislature intended to prevent in enacting the Child Abuse and Neglect Reporting Act. (§ 11164, subd. (b).)⁴

A. Officer Doe Had A Duty Under Section 11166 To Investigate And Report A Reasonable Suspicion Of Child Abuse.

We acknowledge, as a general rule one has no duty to come to the aid of another. (Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137) Accordingly, there is no duty owed by police to individual members of the general public because "a law enforcement officer's duty to protect the citizenry is a general duty owed to the public as a whole." (Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111, 1121, 222 Cal.Rptr. 239.) Therefore, absent a special relationship or a statute creating a special duty, the police may not be held liable for their failure to provide protection. (Id. at p. 1122, 222 Cal.Rptr. 239.)

Section 11166, subdivision (a) creates such a duty.⁵ This statute provides in relevant part any "employee of a child protective agency ... who has knowledge of or observes a child, in his or her professional capacity, or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident." (Emphasis added.) "Reasonable suspicion" for purposes of the statute means "it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training or experience, to suspect child abuse." (Ibid.) A police department is a "child protective agency" for purposes of this statute. (§ 11165.9.)

As we read section 11166, subdivision (a), it imposes two mandatory duties on a police officer who receives an account of child abuse.

First, the statute imposes a duty to investigate. Although section 11166, subdivision (a) does not use the term "investigate," it clearly envisions some investigation in order for an officer to determine whether there is reasonable suspicion to support the child abuse allegation and to trigger a report to the county welfare department and the district attorney under section 11166, subdivision (i) and to the Department of Justice under section 11169, subdivision (a). The latter statute provides in relevant part: "A child protective agency shall forward to the Department of Justice a report in writing of every case it investigates of known or suspected child abuse which is determined not to be unfounded.... A child protective agency shall not forward a report to the Department of Justice unless it has conducted an active investigation and determined that the report is not unfounded, as defined in Section 11165.12." An "unfounded" report is one "which is determined by a child protective agency investigator to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse, as defined in Section 11165.6." (§ 11165.12, subd. (a).) "Child abuse" is defined in section 11165.6 as "a physical injury which is inflicted by other than accidental means on a child by another person."

The statute also imposes a duty to take further action when an objectively reasonable person in the same situation would suspect child abuse. Further action would entail reporting the "known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone" and preparing and sending "a written report thereof within 36 hours of receiving the information concerning the incident." (§ 11166, subd. (a).)

Contrary to the city's position, the duty to investigate and report child abuse is mandatory under section 11166, subdivision (a) if a reasonable person in Officer Doe's position would have suspected such abuse. The language of the statute, prior cases and public policy all support this conclusion.

The statute itself states an employee of a child protective agency (e.g., a police officer) "who has knowledge of [a child] whom he or she knows or reasonably suspects has been the victim of child abuse, shall report the known or suspected instance of child abuse[.]" (Emphasis added.) In contrast to the imperative language used in subdivision (a), the Legislature provided in subdivision (f): "Any other person who has knowledge of or observes a child whom he or she knows or reasonably suspects has been a victim of child abuse may report the known or suspected instance of child abuse to a child protective agency." (Emphasis added.) Comparing the obligatory language of subdivision (a) addressed to police officers and the permissive language of subdivision (f) addressed to the...