Elton v. County of Orange

• Decision Date: 29 January 1970
• Citation: 84 Cal.Rptr. 27,3 Cal.App.3d 1053
• Court: California Court of Appeals Court of Appeals
• Parties: Kathleen P. ELTON, a minor, by and through her Guardian ad Litem, Donald Vaughn, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents. Civ. 9306.

Page 27

84 Cal.Rptr. 27

3 Cal.App.3d 1053

Kathleen P. ELTON, a minor, by and through her Guardian ad Litem, Donald Vaughn, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.

Civ. 9306.

Court of Appeal, Fourth District, Division 1, California.

Jan. 29, 1970.

[3 Cal.App.3d 1055] Pacht, Ross, Warne, Bernhard & Sears and Harvey M. Grossman, Los Angeles, Donahue, Katnik, Katnik & Cunard, and Arthur J. Donahue, Santa Ana, for plaintiff and appellant.

Adrian Kuyper, County Counsel, Ball, Hunt, Hart & Brown, Clarence S. Hunt, George C. McCarthy and Thomas A. Ramsey, Long Beach, for defendants and respondents.

OPINION

AULT, Associate Justice.

The minor plaintiff, through her guardian ad litem, appeals from an order dismissing her complaint against the defendants, the County of Orange, the Orange County Department of Social Welfare and the Orange County Probation Department, entered after a demurrer to her first amended complaint had been sustained without leave to amend. ¹

The complaint seeks damages alleged to have been sustained by the plaintiff who had been declared a dependent child by the juvenile court pursuant to Welfare & Institutions Code section 600. The first cause of action charges general negligence. It alleges defendants Ronald and Carol Horton (not parties to this appeal) applied to the Orange County Department of Social Welfare for permission to operate a boarding home for minor children adjudicated wards of the juvenile court; the application was investigated by the department as required by the Welfare & Institutions Code and the rules and regulations of the State Department of Social Welfare; the department certified the Hortons as proper persons to care for children and designated their home as a boarding home for that purpose. It further alleges the Orange County Probation Department placed numerous children, including the plaintiff, in the home of the Hortons and the defendants (including the Hortons, the county and its departments)

'* * * did so carelessly and negligently place, supervise, entrust, control, maintain and care for the person of the minor plaintiff, that she was struck, battered, bruised, scalded, beaten, and physically and mentally forced to submit to physical and mental atrocities; that as a proximate result thereof she was caused to and did suffer permanent and substantial injury to her mental and physical being.'

The second cause of action is premised upon the provisions of Government Code section 815.6, ² and alleges the county failed to enforce and comply with certain regulations governing dependent children and foster homes enacted and promulgated by the State Department of Social Welfare which resulted in injury to the plaintiff.

The trial court's ruling sustaining the demurrers was predicated on its belief all the acts or omissions of public employees about which the plaintiff complained were not actionable because they were 'discretionary acts' and thus immune under the provisions of Government Code section 820.2. ³

In pertinent part that section provides:

'* * * a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.'

The immunity granted public employees for 'discretionary acts' by Government Code section 820.2 is extended to the public entity through Government Code section 815.2(b), so that where the public employee is immune the public entity is also protected. (Gov.Code sec. 815.2(b); Sava v. Fuller, 249 Cal.App.2d 281, 284, 57 Cal.Rptr. 312; Johnson v. State of California, 69 Cal.2d 782, 787, 73 Cal.Rptr. 240, 447 P.2d 352.)

The trial court's ruling sustaining the demurrers was made before Johnson v. State of California, Supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, was decided by the California Supreme Court. That case makes it clear Government Code section 820.2, upon which the trial court relied, cannot furnish immunity to the county under the facts alleged in either cause of action of plaintiff's first amended complaint. Immunity is not achieved because the acts complained of are not 'discretionary acts' within the meaning of the section.

If the words 'the exercise of the discretion' were to be given a broad, literal interpretation, section 820.2 could be invoked to establish immunity from liability for every act and omission of public employees, for,

'* * * it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.' (Ham v. County of Los Angeles, 46 Cal.App. 148, 162, 189 P.2d 462, 468.)

(See also Johnson v. State of California, Supra, 69 Cal.2d 782, 788, 73 Cal.Rptr. 240, 447 P.2d 352.) Section 820.2 was intended to restate the pre-existing California law, Sava v. Fuller, Supra, 249 Cal.App.2d 281, 284, 57 Cal.Rptr. 312 and

'* * * the Legislature has Not granted immunity from liability for every act or omission following after the exercise of discretion.' (Ibid. p. 285, 57 Cal.Rptr. p. 314.)

Johnson v. State of California, Supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 contains a comprehensive analysis of the 'discretionary acts' which are clothed with immunity under Government Code section 820.2. The Supreme Court rejected a semantic inquiry into the meaning of discretionary and based its approach on the reason or purpose for granting immunity to the public employee and entity in this area.

'In drawing the line between the immune 'discretionary' decision and the unprotected ministerial act we recognize both the difficulty and the limited function of such distinction. As we said in Lipman v. Brisbane Elementary School Dist., Supra, 55 Cal.2d 224, 230, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467, 'it may not be possible to set forth a definite rule which would determine in every instance whether a governmental agency is liable.' A workable definition nevertheless will be one that recognizes that '(m)uch of what is done by officers and employees of the government must remain beyond the range of judicial inquiry' (citation); obviously 'it is not a tort for government to govern' (citation). Courts and commentators have therefore centered their attention on an assurance of judicial abstention in areas in which the responsibility for Basic policy decisions has been committed to coordinate branches of government. Any wider judicial review, we believe, would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government. Moreover, the potentiality of such review might even in the first instance affect the coordinate body's decision-making process.' (p. 793, 73 Cal.Rptr. p. 248, 447 P.2d p. 360)

The court concluded the discretionary acts and omissions of public employees for which section 820.2 provides immunity from liability are only those which involve basic policy decisions.

While the Orange County Probation Department performs functions with respect to dependent children which could be classified as involving basic policy decisions (such as recommending a child be, or not be, declared a dependent child), and hence warrant immunity, it does not follow its subsequent ministerial acts in implementing such decisions rise to the same level. Here plaintiff does not complain that she was made a dependent child. The gravamen of her complaint, in both causes of action, is, after that decision was made, she was negligently placed in a home where she was subject to torture and abuse and negligently maintained, cared for and supervised. Decisions made with respect to the maintenance, care or supervision of plaintiff, as a dependent child, or in connection with her placement in a particular home, may entail the exercise of discretion in a literal sense, but such determinations do not achieve the level of basic policy decisions, and thus do not, under the provisions of Government Code section 820.2, preclude judicial inquiry into whether negligence of public employees was involved and whether such negligence caused or contributed to plaintiff's injuries. (McCorkle v. City of Los Angeles, 70 A.C. 262, 271, 74 Cal.Rptr. 389, 449 P.2d 453; Johnson v. State of California, Supra, 69 Cal.2d 782, 795--797, 73 Cal.Rptr. 240, 447 P.2d 352; Sava v. Fuller, Supra, 249 Cal.App.2d 281, 285--291, 57 Cal.Rptr. 312.)

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