Thompson v. County of Alameda

Decision Date14 July 1980
Docket NumberS.F. 24006
CourtCalifornia Supreme Court
Parties, 614 P.2d 728, 12 A.L.R.4th 701 Clifford K. THOMPSON, Jr. et al., Plaintiffs and Appellants, v. COUNTY OF ALAMEDA, Defendant and Respondent

Merrill J. Schwartz, Lise A. Pearlman, Stark, Stewart, Simon & Sparrowe and Stark, Stewart, & Simon, Oakland, for plaintiffs and appellants.

Richard J. Moore, County Counsel, E. Melville McKinney, Peter W. Davis, John E. Carne, Judith R. Epstein and Crosby, Heafey, Roach & May, Oakland, for defendant and respondent.

James C. Hooley, Public Defender, Oakland, John H. Larson, County Counsel, Los Angeles, Robert C. Lynch, Asst. Chief Deputy County Counsel, and Gordon J. Zuiderweg, Deputy County Counsel, Los Angeles, George Kading, County Counsel, Santa Barbara, Milton Goldinger, County Counsel, Fairfield, L. H. Gibbons, Dist. Atty., Raymond Schneider, County Counsel, Eureka, Stephen M. Dietrich, Jr., County Counsel, Sonora, Joseph W. Kiley, Dist. Atty., Neil B. Van Winkle, County Counsel, Mariposa, L. Joseph DeWald, Jr., County Counsel, Auburn, and Dorothy L. Schechter, County Counsel, Ventura, as amici curiae on behalf of defendant and respondent.


Plaintiffs appeal from a judgment of dismissal entered in favor of defendant County of Alameda (County) after County's general demurrer was sustained without leave to amend. We will affirm the judgment.

For purposes of this appeal, those factual allegations of the complaint which are properly pleaded are deemed admitted by defendant's demurrer. (White v. Davis (1975) 13 Cal.3d 757, 765, 120 Cal.Rptr. 94, 533 P.2d 222.) We recite the gravamen of plaintiffs' causes of action as contained in their amended complaint. Plaintiffs, husband and wife, and their minor son lived in the City of Piedmont, a few doors from the residence of the mother of James F. (James), a juvenile offender. Prior to the incident in question, James had been in the custody and under the control of County and had been confined in a county institution under court order. County knew that James had "latent, extremely dangerous and violent propensities regarding young children and that sexual assaults upon young children and violence connected therewith were a likely result of releasing (him) into the community." County also knew that James had "indicated that he would, if released, take the life of a young child residing in the neighborhood." (James gave no indication of which, if any, young child he intended as his victim.) County released James on temporary leave into his mother's custody at her home, and "(a)t no time did (County) advise and/or warn (James' mother), the local police and/or parents of young children within the immediate vicinity of (James' mother's) house of the known facts . . . ." Within 24 hours of his release on temporary leave, James murdered plaintiffs' son in the garage of James' mother's home.

The complaint further alleges that the death was caused by County's "reckless, wanton and grossly negligent" actions in releasing James into the community (first cause of action); failing to advise and/or warn James' mother, the local police, or "parents of young children within the immediate vicinity" of the residence of James' mother (second cause of action); failing to exercise due care in maintaining custody and control over James through his mother in her capacity as County's agent (third cause of action); and failing to exercise reasonable care in selecting James' mother to serve as County's agent in maintaining custody and control over James (fourth cause of action).

County demurred on the ground that the complaint failed to state a cause of action (Code Civ.Proc., § 430.10, subd. (e)), contending that Government Code sections 818.2, 820.2, 844.6, subdivision (a)(1), 845, 845.8, subdivision (a), and 846, granted County immunity.

We consider, nonsequentially, the validity of each of the alleged causes of action.


We note preliminarily that Government Code sections 818.2, 845, and 846 afford the County no immunity. The alleged failures of County do not invoke these statutory immunities because the claimed omissions of County do not involve the adoption or failure to adopt any enactment or lack of enforcement of any law (§ 818.2), the failure to provide police protection (§ 845), or the failure to make an arrest or retain an arrested person in custody (§ 846). Similarly inapplicable is section 844.6, subdivision (a)(1), applicable only to liability for injuries caused by a "prisoner," because a private residence utilized for the custody of delinquent children may not be deemed the equivalent of a prison (Patricia J. v. Rio Linda Union Sch. Dist. (1976) 61 Cal.App.3d 278, 287, 132 Cal.Rptr. 211); nor is a minor placed in the custody of his family or foster parents a "prisoner" for purposes of section 844.6.

County asserts additionally, however, that sections 820.2 and 845.8 immunize County's release of James into the community. We agree.

In Johnson v. State of California (1968) 69 Cal.2d 782, 795, 73 Cal.Rptr. 240, 447 P.2d 352, we characterized the determination of whether or not to release an offender as a discretionary decision clothed with immunity under section 820.2 when made by the appropriate authorities. We explained, "The decision to parole thus comprises the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination." (Johnson, supra, at p. 795, 73 Cal.Rptr. at p. 249, 447 P.2d at p. 361; see also Welf. & Inst.Code, § 1176.) In the present case, plaintiffs fail to allege that the releasing agent was not empowered to make the determination to release James. It follows that the decision to release James is immune from tort liability under section 820.2.

A further specific immunity within this context is conferred by section 845.8, which explicitly provides that "Neither a public entity nor a public employee is liable for: (P) (a) Any injury resulting from determining whether to parole or release a prisoner . . . ." (Italics added.)

Each of these sections extends to County a statutory immunity for any liability based upon its decision to "release."


The third and fourth causes of action involve County's selection of James' mother as custodian and its alleged failure adequately to supervise her activities. Plaintiffs assert that these matters are beyond the scope of any decision to release which is immunized by section 845.8, subdivision (a), but rather constitute mere ministerial implementations of a prior discretionary decision and accordingly are not immunized by section 820.2. We disagree.

Section 820.2 recites "Except as otherwise provided by statute, 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." In Johnson we rejected a purely mechanical analysis of the term "discretionary." Rather, we both emphasized and evaluated those policy considerations which underlie grants of immunity in order to determine which acts are protected. As we subsequently declared in McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 260-261, 74 Cal.Rptr. 389, 395, 449 P.2d 453, 459, contentions such as those which are made here "have frequently required judicial determination of the category into which the particular act falls: i. e., whether it was ministerial because it amounted 'only to an obedience to orders, or the performance of a duty in which the officer is left no choice of his own,' or discretionary because it required 'personal deliberation, decision and judgment.' (Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 942-943 (41 Cal.Rptr. 508) . . . (citations).)"

The discretionary nature of the selection of custodians for potentially dangerous minors and the determination of the requisite level of governmental supervision for such custodians becomes apparent when the underlying policy considerations are analyzed. Choosing a proper custodian to direct the attempted rehabilitation of a minor with a prior history of antisocial behavior is a complex task. (See Simpson, Rehabilitation as the Justification of a Separate Juvenile Justice System (1976) 64 Cal.L.Rev. 984, 1003-1015; Nejelski, Diversion: Unleashing the Hound of Heaven? in Pursuing Justice for the Child (Rosenheim edit. 1976) p. 94, at pp. 104-116.) The determination involves a careful consideration and balancing of such factors as the protection of the public, the physical and psychological needs of the minor, the relative suitability of the home environment, the availability of other resources such as halfway houses and community centers, and the need to reintegrate the minor into the community. The decision, requiring as it does, comparisons, choices, judgments, and evaluations, comprises the very essence of the exercise of "discretion" and we conclude that such decisions are immunized under section 820.2.

Moreover, as previously noted, section 845.8 immunizes County from liability for "Any injury resulting from determining . . . the terms and conditions of (a prisoner's) release. . . ." As established in County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 757, 93 Cal.Rptr. 406, immunity under this section is provided when the questioned acts involve policy decisions made prior to or as an integral part of the decision to release. (Accord, Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 713, 141 Cal.Rptr. 189.) The selection of James' mother as custodian and the degree of supervision to be exercised over her clearly involved such protected policy decisions.

Accordingly, we conclude that County is immune from liability for its selection of a...

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