McMartin v. Children's Institute International
Decision Date | 10 August 1989 |
Docket Number | No. B031360,B031360 |
Citation | 261 Cal.Rptr. 437,212 Cal.App.3d 1393 |
Court | California Court of Appeals |
Parties | Virginia McMARTIN and Peggy Ann Buckey, Plaintiffs and Appellants, v. CHILDREN'S INSTITUTE INTERNATIONAL, Kathleen "Kee" McFarlane, ABC Television, Inc., and Wayne Satz, Defendants and Respondents. |
James H. Davis, Los Angeles, for plaintiffs and appellants.
O'Melveny & Myers, Charles P. Diamond, David Pettit and Jonathan B. Frank Los Angeles, for defendants and respondents.
Plaintiffs Virginia McMartin and Peggy Ann Buckey appeal from an order sustaining a demurrer to their first amended complaint without leave to amend and dismissing their action against defendants Kathleen "Kee" MacFarlane and the Children's Institute International for damages allegedly arising out of the investigation and prosecution of a criminal child abuse action. We affirm the judgment (order of dismissal).
In their First Amended Complaint, plaintiffs named the County of Los Angeles ("County"), the City of Manhattan Beach ("City"), Children's Institute International ("CII"), Kathleen "Kee" MacFarlane ("MacFarlane"), Astrid Hagar, Bruce Woodling, Robert Philbosian, Wayne Satz, ABC Television Inc. and Does 1 through 200 in an action for:
The complaint sought to recover monetary damages and declaratory relief for the emotional, physical and economic harm suffered by plaintiffs allegedly stemming from the prosecution of criminal charges against plaintiffs for child abuse allegedly occurring at the McMartin Preschool in the City of Manhattan Beach.
This action only involves the demurrer brought by defendants CII and MacFarlane, who are named as defendants in every cause of action except the sixth, "Breach of Mandatory Duty by District Attorney" and the ninth, "Outrageous Conduct by a Television Station--Media Malpractice."
The facts pleaded by plaintiffs in their First Amended Complaint to support their claims of wrongdoing against defendants were as follows: 2
(1) That CII was retained by the City of Manhattan Beach and the County of Los Angeles "to interview, examine, interrogate and evaluate the alleged victims of child abuse, and to report to [the] City and County whether child abuse had occurred and who the perpetrators were";
(2) That CII was acting through its duly authorized officers and agents, including defendant MacFarlane;
(3) That CII reported to the City and County its conclusions that numerous acts of child abuse had occurred at the McMartin Preschool, and that plaintiffs, among others, were perpetrators or probable perpetrators thereof, although CII had no contact with plaintiff nor specific knowledge about plaintiffs at the time such report was made;
(4) That CII violated substantially all standards for interviewing alleged child abuse victims;
(5) That CII's therapists engaged in these improper activities because it was to their personal advantage to do so (6) That as a result of CII's conduct, plaintiffs were wrongfully indicted and subjected to a preliminary hearing on charges of child abuse;
(7) That MacFarlane "leaked" testimony and documentary evidence which was subject to protective orders in the criminal proceedings to ABC Television Inc. and its news reporter Wayne Satz; and
(8) That MacFarlane and others suppressed, destroyed and manipulated "evidence such as that discrediting the mental stability and veracity of Judy Johnson, the initial complaining witness against Plaintiff in 1983."
Defendants CII and MacFarlane filed their demurrer to the First Amended Complaint in September 1987 on the grounds that (1) plaintiffs' state law claims were barred under the absolute privilege of Penal Code section 11172; (2) plaintiffs' state law claims were barred because CII's reports were made in connection with an ongoing criminal investigation and were thus privileged (Civ.Code, § 47, subd. 2); (3) plaintiffs' civil rights and conspiracy causes of action were barred by CII's absolute federal immunity; (4) plaintiffs failed to state a cause of action under RICO; and (5) plaintiffs failed to state a cause of action for declaratory relief.
Pursuant to Penal Code section 11166, "any child care custodian, health practitioner, or 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...." 3 (Pen.Code, § 11166, subd. (a).) The failure to report is a misdemeanor, punishable by up to six months in jail or by a fine of $1000, or both. (Pen.Code, § 11172, subd. (e).) Those subject to this mandatory reporting requirement are absolutely immune from civil or criminal liability for making such a report. (Pen.Code, § 11172, subd. (a); 4 Storch v. Silverman (1986) 186 Cal.App.3d 671, 231 Cal.Rptr. 27.) Thus, even if an individual designated as a mandated reporter pursuant to section 11166 submits a false report with the intent to vex, annoy or harass an innocent party, civil or criminal liability cannot be imposed. (Id. at p. 681, 231 Cal.Rptr. 27; Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1217-1218, 242 Cal.Rptr. 312.)
Members of the general public who voluntarily report incidences of child abuse are also protected by section 11172, but their immunity from civil or criminal liability is not absolute. They are not protected if they make a report with knowledge of its falsity or with reckless disregard of its truth or falsity. (Pen.Code, § 11172, subd. (a).) (Storch v. Silverman, supra, 186 Cal.App.3d at p. 680, 231 Cal.Rptr. 27.)
Defendant CII, as identified in the complaint, is "a California non-profit corporation which holds itself out to the public as an independent, professional and objective organization that is expert at the task of assessing whether in fact child abuse has occurred, the nature thereof and the identify [sic] of the perpetrator" and MacFarlane is identified as its duly authorized officer and agent. While these descriptions do not specifically identify CII or MacFarlane as "child care custodians," plaintiffs do not quarrel that CII comes within the category of mandated reporters under section 11166, nor that MacFarlane is CII's employee.
Plaintiffs acknowledge the broad scope of the immunity granted by Penal Code section 11172, but contend that the activities of defendants which caused them harm were outside the scope of protected child abuse reporting, and that they should be allowed to amend their complaint to plead such facts. Plaintiffs, however, failed to bring before the trial court and have failed to bring before this court any such facts.
At oral argument on the demurrer, plaintiffs claimed they would amend to plead MacFarlane's lack of a child care license. Even assuming this were true, this fact alone does not remove MacFarlane from the category of mandated reporters. A "child care custodian" protected under section 11172 may be an employee of a licensed community care or child day care facility or a child care institution. (Pen.Code, § 11165.7.) In addition, the inclusion of "commercial film and photographic print processors" and "employees of child protective agencies" in the category of mandated reporters in Penal Code section 11166 clearly indicates that a child care license is simply not a prerequisite for the shield of immunity provided by section 11172.
The protection granted by section 11172 encompasses not only the actual act of reporting, but also "conduct giving rise to the obligation to report, such as the collection of data, or the observation, examination, or treatment of the suspected victim or perpetrator of child abuse, performed in a professional capacity or within the scope of employment...." (Krikorian v. Barry, supra, 196 Cal.App.3d at p. 1223, 242 Cal.Rptr. 312.) Based on the scenario provided by plaintiffs' complaint, we can find no other facts which would take defendants' alleged activities outside the scope of the privilege. Plaintiffs' complaint specifically alleges that CII was retained to interview, examine and interrogate the children from the McMartin preschool. Activities occurring prior to the actual filing of criminal charges against plaintiffs would be privileged since the complaint specifically alleges that CII's involvement commenced upon its hiring by the City of Manhattan Beach and the County of Los Angeles.
Even if, as plaintiffs allege, CII and MacFarlane used unorthodox methods in interviewing the children, defendants are not removed from the protection afforded them by section 11172. The manner in which the alleged child abuse is discovered is irrelevant as long as the discovery occurs within the scope of the interviewing observing reporters' employment or in their professional capacity as children's services providers. (Krikorian v. Barry, supra, 196 Cal.App.3d at p. 1223, 242 Cal.Rptr. 312.)
Finally, plaintiffs contend on appeal that MacFarlane's activities in her...
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