Smith v. M.D.

• Decision Date: 30 January 2003
• Docket Number: No. B159868.,No. B160628.,B159868.,B160628.
• Citation: 105 Cal.App.4th 1169,130 Cal.Rptr.2d 315
• Court: California Court of Appeals Court of Appeals
• Parties: James SMITH, Plaintiff and Respondent, v. M.D., a Minor, etc., Defendant and Appellant. M.D., a Minor, etc., Petitioner, v. The Superior Court of Los Angeles County, Respondent; James Smith, Real Party in Interest.

130 Cal.Rptr.2d 315

105 Cal.App.4th 1169

James SMITH, Plaintiff and Respondent, v. M.D., a Minor, etc., Defendant and Appellant.

M.D., a Minor, etc., Petitioner, v. The Superior Court of Los Angeles County, Respondent;

James Smith, Real Party in Interest.

No. B159868.

No. B160628.

Court of Appeal, Second District, Division 2.

January 30, 2003.

As Modified February 11, 2003.

Review Granted April 23, 2003.

Law Offices of Michael Thomas, Janet L. Keuper and Mirth White, Long Beach, for Petitioner.

No appearance by Respondent.

Stephen C. Moore for Real Party in Interest.

BOREN, P.J.

Real party in interest, James Smith, brought a defamation action against petitioner M.D., a minor. Smith alleged that M.D., at six years of age, falsely reported to her grandmother, her parents and the police that Smith had sexually molested her. When M.D.'s demurrer was overruled, this petition for writ of mandate followed. We hold that the Child Abuse and Neglect Reporting Act (Pen.Code, § 11164 et seq.)¹ (Act), including the privileges set forth therein, does not apply to minors who report claimed sexual abuse, and that such minors are therefore entitled to assert the absolute privilege contained within Civil Code section 47, subdivision (b) (Civil Code section 47(b)). Because we conclude the trial court erred in overruling M.D.'s demurrer, we will issue a peremptory writ of mandate directing respondent court to vacate its order overruling M.D.'s demurrer and to enter an order sustaining the demurrer without leave to amend.

I. FACTUAL AND PROCEDURAL BACKGROUND

We take the relevant facts from Smith's complaint, and, in accordance with the standard of review, must take these alleged facts to be true. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638, 29 Cal.Rptr.2d 152, 871 P.2d 204; Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 702, 263 Cal.Rptr. 119, 780 P.2d 349.) We also accept as true all facts appearing in exhibits attached to the complaint.² (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627, 272 CaLRptr. 623.)

In November 2000, M.D., then six years of age, falsely accused Smith of "performing various sexually deviant acts" upon her person. These statements were made first to M.D.'s grandmother and then to M.D.'s parents. After her parents reported the alleged molestation to the police, M.D. was interviewed by police officers. M.D. repeated the accusations to the police. At the time M.D. made each of the statements she knew them to be false. As a result of M.D's false accusations, Smith was arrested, booked and jailed. On January 10, 2001, the criminal complaint was dismissed pursuant to section 1385.³ On January 7, 2002, Smith filed suit against M.D. for defamation.⁴

M.D. demurred to the complaint, urging that Smith had failed to state facts sufficient to constitute a cause of action against her because her statements to her caregivers and the police were absolutely privileged under Civil Code section 47(b). M.D. also asserted that public policy requires that children of tender years be immune from defamation lawsuits based on reports of child sexual abuse.

The trial court overruled M.D.'s demurrer, rejecting her public policy argument. The court also held that minors who report sexual abuse are permissive reporters under section 11166, subdivision (e)⁵ of the Act. Relying on Roe v. Superior Court (1991) 229 Cal.App.3d 832, 280 Cal.Rptr. 380 (Roe ), the court found that statements made by M.D.'s caregivers to the police could be imputed to M.D. for the purposes of the Act. Citing Begier v. Strom (1996) 46 Cal.App.4th 877, 54 Cal.Rptr.2d 158 (Begier), the court held that the specific privileges set forth within section 11172, subdivision (a)⁶ of the Act override all other privileges, including those contained within Civil Code section 47(b). In other words, M.D., as a permissive reporter, was entitled to assert the section 11172, subdivision (a) qualified privilege, but not the absolute privilege set forth within Civil Code section 47(b). This petition for writ of mandate followed.

II. ISSUES

This petition raises several contentions. First, M.D. urges that minors reporting sexual molestation do not qualify as permissive reporters under the Act. Second, she argues that a six-year-old minor reporting claimed sexual abuse first to her caregivers and then to the police is entitled to assert the absolute privilege set forth in Civil Code section 47(b). Finally, she claims that minors of tender years should be immune from defamation lawsuits based on allegations of child sexual abuse.

III. DISCUSSION

A. Writ Relief

"[A]n order overruling a demurrer is not directly appealable but may be reviewed on an appeal from the final judgment." (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 912-913, 55 Cal.Rptr.2d 724, 920 P.2d 669.) "Appeal is presumed to be an adequate remedy and writ review 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." (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182, 123 Cal.Rptr.2d 637.) This petition raises issues of first impression, the resolution of which in M.D.'s favor will result in a final disposition as to her.

B. Standard of Review

In considering the propriety of an order overruling a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43, 112 Cal.Rptr.2d 677.) "We give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts properly pled. [Citations.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.]" (Ibid) "A general demurrer will lie where the complaint `has included allegations that clearly disclose some defense or bar to recovery.' [Citation.] Thus, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. [Citation.]" (Casterson v. Superior Court, supra, 101 Cal.App.4th at p. 183, 123 Cal.Rptr.2d 637.)

The interpretation of the Act is a pure question of law which we review independently. (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1139-1140, 57 Cal. Rptr.2d 284.)

C. The Act does not apply to minors reporting claimed sexual abuse.

The Act requires "a mandated reporter" who "has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect" to make a report to certain designated agencies. (§ 11166, subd. (a).) "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 make a report, but is not required to do so. (§ 11166, subd. (e).) These individuals are known as permissive reporters. (Thomas v. Chadwick (1990) 224 Cal. App.3d 813, 819-820, fn. 8, 274 Cal.Rptr. 128.) Section 11172, subdivision (a) provides "[a]ny other person" who makes a child abuse report with qualified immunity.

Smith argues that a six-year-old minor such as M.D. qualifies as "[a]ny other person" as that term is used in sections 11166, subdivision (e) and 11172, subdivision (a), and that M.D. is therefore a permissive reporter under the Act. M.D. responds that the phrase "any other person" refers to third parties who report instances of known or suspected child abuse, not to children who report their own sexual child abuse. Review of the Act, together with application of the principles of statutory interpretation, persuade us that M.D. is not a permissive reporter under the Act.

"The fundamental goal of statutory interpretation is to ascertain the Legislature's intent to effectuate the purpose of the law, focusing not only on the words used but also the objectives of the statute, the evils to be remedied and the legislative history of the statute. [Citation.]" (Thomas v. Chadwick, supra, 224 Cal. App.3d at p. 821, 274 Cal.Rptr. 128.)

The evil to be remedied, i.e., the abuse of children, is an evil that has tragic consequences for both the child victim and our society.⁷ (Hale & Underwood, Child Abuse: Helping Kids Who Are Hurting (1991) 74 Marq. L.Rev. 560, 561 ["Victims of child abuse and neglect exhibit devastating consequences as adults. Statistically, these individuals have lower IQs, a higher frequency of suicide attempts and more alcohol-related problems. Furthermore, they are significantly more prone to become abusers themselves"], fns. omitted.)

In 1962, the publication of The Battered Child Syndrome by Dr. C. Henry Kempe drew wide public attention to the problem of child abuse for the first time. (Singley, Failure To Report Suspected Child Abuse: Civil Liability of Mandated Reporters (1998) 19 J. Juv. L. 236, 238.)

In 1963, California, recognizing the necessity for early detection and reporting of child abuse, became the first state to adopt a mandated child abuse reporting statute when it added former section 11161.5⁸ to the Penal Code.⁹ The statute required physicians and surgeons to report suspected instances of child abuse to designated local agencies when it appeared to these professionals "from observation of the minor that the minor may have been a victim" of child abuse. "Physicians were targeted ... because of the assumption that they were more likely than other groups to come in contact with injured children." (Trost, Chilling Child Abuse Reporting: Rethinking The CAPTA Amendments, supra, 51 Vand. L.Rev. at p. 192, fn. 47.)

In 1974, Congress enacted the Child Abuse Prevention and Treatment Act of 1974. (Pub.L. No. 93-247 (Jan. 31, 1974) 88 Stat. 4; codified in 42 U.S.C. §§ 5101 et seq.) "Congress intended the federal act to facilitate state programs...