MacDonald v. State of California

• Decision Date: 20 May 1991
• Docket Number: No. D010598,D010598
• Citation: 230 Cal.App.3d 319,281 Cal.Rptr. 317
• Court: California Court of Appeals Court of Appeals
• Parties: William Clifford John MacDONALD, a Minor, etc., et al., Plaintiffs and Appellants, v. STATE of California, et al., Defendants and Respondents.

Page 317

281 Cal.Rptr. 317

230 Cal.App.3d 319

William Clifford John MacDONALD, a Minor, etc., et al., Plaintiffs and Appellants, v. STATE of California, et al., Defendants and Respondents.

No. D010598.

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

May 20, 1991.

Thorsnes, Bartolotta, McGuire & Padilla and Frederic L. Gordon, San Diego, for plaintiffs and appellants.

John K. Van de Kamp and Daniel Lungren, Attys. Gen., Marvin Goldsmith, Senior Asst. Atty. Gen., Randall B. Christison, Luis R. Vargas, and Kristin G. Hogue, Deputy Attys. Gen., Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, Susan A. Crabtree and F. David Froman, Deputy County Counsel, for defendants and respondents.

HUFFMAN, Acting Presiding Justice.

This appeal raises the question of whether the statutory scheme for licensing and inspecting day care facilities (Health & Saf.Code, § 1596.70 et seq.) ¹ creates a privately enforceable mandatory duty on the part of governmental entities to discover and prevent harmful conduct that might injure children placed in such facilities by their parents. We answer this question in the negative and hold these statutes do not create a private right of action against the public entities on behalf of the injured child.

Plaintiff William Clifford John MacDonald (William) was 22 months old when his day care provider, defendant Patricia Vitela, severely burned his hands in scalding water. William (through his guardian ad litem) and his parents, plaintiffs Connie V. MacDonald and William S. MacDonald (the parents), brought a complaint for money damages on a number of theories against defendant Vitela, her husband George Vitela, and two public entities which were alleged to owe duties of care to the plaintiffs, defendants State of California (the state) and County of San Diego (the county). The trial court granted motions for judgment on the pleadings brought by the state and the county with respect to the two causes of action specifically alleged against them, negligence per se (based on Health & Saf.Code, §§ 1597.30, 1597.55, and former 1597.56) ² and general negligence. Accordingly, the action as to the two public entities was dismissed.

William and his parents ³ appeal the order of dismissal, contending the state and the county failed to discharge their mandatory duties to visit and oversee day care homes as required by sections 1597.55 and former 1597.56, thereby incurring liability for breach of those duties pursuant to Government Code section 815.6 (imposing liability for a public entity's breach of mandatory duties). In the alternative, if the duties owed by the state and the county to William are held to be discretionary rather than mandatory, William argues that certain immunities created by the Government Code (Gov.Code, §§ 820.2, 818.4, 818.2) cannot properly be found to bar this action at the pleading stage.

William further contends he had a special relationship with the state and the county arising from his status as a child in day care, or alternatively that the government had a special relationship with its licensee Vitela that required it to control her conduct. These special relationships are alleged to justify the imposition of duties of care on the state and the county to investigate and to "warn of dangers associated with, and make safe day care homes, as well as those individuals who operate said homes."

Our interpretation of section 1597.30 et seq. as applied to these facts leads us to conclude the Legislature did not intend by the enactment of this statutory scheme to create a mandatory duty, the breach of which could be redressed by a civil action for damages. Although sections 1597.55 and former 1597.56 contain mandatory language, it is well established that some apparently obligatory statutory language should properly be construed as not foreclosing a governmental entity's exercise of discretion. (Morris v. County of Marin (1977) 18 Cal.3d 901, 910-911, fn. 6, 136 Cal.Rptr. 251, 559 P.2d 606.) That is the case here. Moreover, these public entities did not owe any duty to William based on a special relationship; thus, the immunity question is moot. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894.) We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The state's and the county's motions for judgment on the pleadings were addressed to William's first amended complaint. ⁴ Only the 11th and 12th causes of action of the 13 that are pled are directed at the public entities, at all times treating their alleged responsibilities under the statutes as identical. ⁵ (See § 1596.82, providing the state Department of Social Services (the Department) may contract with other governmental agencies to assume specified licensing, approval, or consulting responsibilities.)

In his 11th cause of action for negligence per se, William first pleads that on March 22, 1984, he received second and third degree burns, bruises, and psychological injuries while in the care of the Vitelas. He then alleges the state and the county owed him mandatory duties to establish, administer, and monitor a system for licensing day care homes that was consistent with the legislative purpose of insuring the health and safety of children in such homes. In support of these claims, he sets forth excerpts from sections 1597.30 et seq. as follows:

"2. At all times herein mentioned, California Health and Safety Code Section 1597.55 was in full force and effect and provided, in pertinent part, as follows: ⁶

"No site visitations, or unannounced visits or spot checks, shall be made under this chapter except as provided in this section.

"(a) A site visitation shall be required prior to the initial licensing of the applicant.

"(b) An unannounced site visitation shall be required for the renewal of a license.

"(c) ...

"(d) The department or licensing agency shall make an unannounced site visitation on the basis of a complaint and a follow-up visit as provided in § 1597.56 [now § 1596.853] ...

"3. At all times herein mentioned, California Health and Safety Code Section 1597.51 was in full force and effect and provided, in pertinent part, as follows: ⁷

"The State Department of Social Services shall establish, administer, and monitor a program which licenses family day care homes for children consistent with the provisions of this chapter ...

"4. At all times herein mentioned, California Health and Safety Code Section 1597.56 was in full force and effect and provided, in pertinent part, as follows: ⁸

"The department shall establish a procedure for the processing and handling of complaints which shall include a site visitation, a report filed on the complaint, and a follow-up visit to assure that any violation has been corrected.

"5. At all times herein mentioned, California Health and Safety Code § 1597.50 [now renumbered section 1597.30] was in full force and effect and provided, in pertinent part, as follows:

"The legislature finds and declares:

"(a) It has a responsibility to insure the health and safety of children in family homes that provide day care."

William cites section 16 as an aid in interpretation of these provisions: " 'Shall' is mandatory and 'may' is permissive." He goes on to allege that before Vitela obtained her day care license, an infant in her care, Krystinea W., received a large red "handprint" mark on her face at the Vitela home. After Vitela was licensed, a complaint was made to the county and the state that another infant, Latoya M., incurred a spiral fracture of her arm while in the Vitelas' care. William claims the county and state breached their mandatory duties by failing to conduct a site visitation before issuing Vitela's license, failing to make a site visitation on the basis of the complaint about Latoya M., and failing to make a follow-up visit to assure any violation had been corrected. William then alleges his injuries were received as a proximate result of the state's and county's breaches of mandatory duties,and represented the type of harm that the statutory enactments were designed to prevent.

William's 12th cause of action pleads general negligence, claiming the state and the county owed William a duty to "investigate, inspect, monitor, control, supervise, oversee, administer, conduct, warn of dangers associated with, and make safe day care homes, as well as those individuals who operate said homes." Owing to the breach of those duties, William alleges, he received his injuries at Vitela's hands. It is further alleged that after William was injured, Vitela's day care license was suspended on an accusation involving the incidents with Krystinea W. and Latoya M. (§ 1596.886.)

The state and the county separately moved for judgment on the pleadings on the first amended complaint, attacking both the 11th and 12th causes of action for failure to state sufficient facts. They argued the applicable Health and Safety Code sections do not create an actionable mandatory duty and contended the purpose of the entire statutory scheme regarding family day care homes would not be furthered by a reading of the sections creating a private right of action for damages against public entities. The trial court agreed, granted both motions for judgment on the pleadings, and dismissed the action. ⁹ William timely appealed.

DISCUSSION

In reviewing this order granting the motion for judgment on the pleadings and dismissing the action, we accept the facts alleged in the first amended complaint as true for the purposes of review. (Nunn v. State of California (1984) 35 Cal.3d 616, 620-621, 200 Cal.Rptr. 440, 677 P.2d 846.) We consider the face of the pleading to determine whether the facts alleged entitle the plaintiffs to any relief. (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 287-288, 217 Cal.Rptr. 450.) Applying these rules, we address separately the merits of William's cause of action for breach of mandatory duty...