Opinion
G058750
02-24-2021
E. N., a Minor, etc., et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE, Defendant and Respondent.
Boucher, Raymond P. Boucher and Brian M. Bush; Taylor Labor Law, Christopher W. Taylor, Parham Barkhordar and Maria L. Weitz for Plaintiffs and Appellants. Woodruff, Spradlin & Smart, Daniel K. Spradlin, Jeanne L. Tollison and Roberta A. Kraus for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2018-01016033) OPINION Appeal from a judgment of the Superior Court of Orange County, Derek W. Hunt, Judge. Reversed. Boucher, Raymond P. Boucher and Brian M. Bush; Taylor Labor Law, Christopher W. Taylor, Parham Barkhordar and Maria L. Weitz for Plaintiffs and Appellants. Woodruff, Spradlin & Smart, Daniel K. Spradlin, Jeanne L. Tollison and Roberta A. Kraus for Defendant and Respondent.
* * *
In 2011, the mother of plaintiffs E.N. and I.N., minors (collectively the plaintiffs), reported concerns to defendant County of Orange Department of Social Services (the County) that plaintiffs were being sexually abused by Alex Padilla Beltran, a family friend. The County found the mother's allegations to be unfounded. However, the County failed to report her allegations of child abuse to law enforcement, which was a breach of its duties under the Child Abuse and Neglect Reporting Act (CANRA; Pen. Code, § 11164 et seq.). As a result, law enforcement was unaware of the allegations against Beltran and did not investigate at the time. Six years later, Beltran was arrested and charged with 26 counts of sexually abusing numerous minors, including plaintiffs. They sued the County for negligence, alleging that its failure to report the allegations to law enforcement caused them to suffer six more years of abuse.
All further undesignated statutory references are to the Penal Code.
The trial court granted summary judgment for the County, finding as a matter of law that plaintiffs could not prove the County's breach of duty caused their injuries. We disagree. CANRA recognized that a single agency does not have the necessary expertise to investigate child abuse on its own. The duty violated by the County was intended to ensure that multiple agencies were involved in such investigations to decrease the risk that cases of abuse would be overlooked. Thus, it was foreseeable that the County's failure to report the allegations against Beltran to law enforcement could cause plaintiffs to suffer additional abuse. While the County argues it is too speculative to determine whether law enforcement would have arrested Beltran in 2011, under existing authority, plaintiffs are entitled to present evidence on this point. Therefore, we reverse the judgment.
I
FACTS
A. Underlying Facts
The underlying facts are undisputed. Plaintiffs' parents are separated. During the relevant time period, plaintiffs lived with their mother and visited their father, who lived with his parents, on weekends. In May 2011, the mother reported concerns to the County that Beltran was sexually abusing plaintiffs at their paternal grandparents' house while the father went out drinking. Beltran was a close family friend on the father's side of the family. He was a godfather to several of the children in the father's extended family and was frequently at the paternal grandparents' home.
At the time of the report, E.N. was four years old and I.N. was one year old. The mother reported that she had been told by E.N.'s teacher that E.N. had been simulating sex with two toys. When the teacher asked what he was doing, E.N. said "'[w]ell, you know where you're resting and you're naked - this is what you do.'" The mother further reported that she caught E.N. trying to touch his younger sister's private parts, and she overhead E.N. asking his sister to "'put [his] wee wee in [her] mouth.'" When she inquired why he would say that, E.N. explained "this is what his [redacted] cousin, [redacted] does." She also stated that E.N. did not like Beltran because he "'kisses with his mouth open.'"
The case was assigned to a social worker, who interviewed the mother and E.N. The mother repeated the information from her initial report and added that E.N. had told her that Beltran patted his bottom and squeezed his buttocks underneath his clothes. During E.N.'s interview, he denied that Beltran's hands had been down his pants. But he said that Beltran "smack[ed] his butt over the clothes." He also said that "[his minor cousin] licked his wienie" at Beltran's behest. During the same interview, though, E.N. claimed the latter incident was only a dream. I.N. was too young to be interviewed. The social workder conducted a physical inspection of him and did not see anything suspicious.
The social worker interviewed several other people about the mother's allegations, including Beltran and the father. The father did not believe E.N. and I.N. were being sexually abused and stated that the mother was fabricating the story to get custody of both kids or to deny him visitation. Beltran stated he has been a family friend for over 20 years. He admitted to pinching the children's bottoms but said it was just rough housing and not sexual.
Following her investigation, the social worker found the allegations to be unfounded and closed the case. Neither the social worker nor anyone else at the County informed the relevant law enforcement agency, the Anaheim Police Department (Anaheim PD), of the mother's report. Thus, law enforcement did not investigate Beltran at the time. There is evidence in the record that had the report been made in 2011, the Anaheim PD's policies would have required them to investigate the mother's allegations. Nearly six years later, in March 2017, Beltran was arrested for allegedly sexually assaulting minors. The felony complaint filed against him alleged 26 counts of sexual assault, including several counts of lewd acts upon plaintiffs. B. The Complaint
Plaintiffs filed this lawsuit in August 2018. They alleged five causes of action against Beltran and a single one for negligence against the County. Generally, plaintiffs asserted the County breached a mandatory duty under CANRA to report the mother's allegations to law enforcement in 2011. This failure, they contended, allowed Beltran to abuse them for six more years.
The County filed a motion for summary judgment. Prior to the hearing, the trial court stated that it would consider the motion, alternatively, as a motion for judgment on the pleadings. Following a hearing, the court "alternatively granted" the motion for summary judgment and the motion for judgment on the pleadings without leave to amend. It found this case turned on proximate cause, and it ruled as a matter of law that plaintiffs could not establish that the County's failure to report the allegations to law enforcement caused their injuries. The court entered judgment in favor of the County. Plaintiffs then filed this appeal, arguing there are questions of fact as to whether the County's breach of the reporting duty was the proximate cause of their injuries.
The prayer in the amended complaint sought damages for "consequential and incidental financial losses, including . . . loss of earnings and employee benefits." At the trial court hearing, plaintiffs' counsel acknowledged this was a mistake and the damage sought was for psychological harms. In granting the motion, the trial court assumed that the prayer intended to seek damages for mental suffering.
II
DISCUSSION
A. Legal Standard
"'The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.' [Citation.] A defendant moving for summary judgment must show the plaintiff's causes of action have no merit. It may do so by negating an element of a cause of action or showing it has a complete defense to a cause of action. The burden then shifts to the plaintiff to show a triable issue of material fact as to the cause of action or defense." (Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 182.)
"The trial court's decision is reviewed de novo, 'considering all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.' [Citation.] The reviewing court 'liberally constru[es] the evidence in favor of the party opposing the motion and resolv[es] all doubts about the evidence in favor of the opponent.' [Citation.] Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.'" (Ghazarian v. Magellan Health, Inc., supra, 53 Cal.App.5th at p. 182.)
"A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review. [Citation.] All properly pleaded, material facts are deemed true, but not contentions, deductions, or conclusions of fact or law." (Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 670.) When granting a motion for judgment on the pleadings, it is an abuse of discretion to deny leave to amend if there is a reasonable possibility the defect can be cured by amendment. (Ibid.) B. Negligence Claim
"Under the Government Claims Act . . . , governmental tort liability must be based on statute." (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 179 (B.H.).) Plaintiffs' negligence claim is based on Government Code section 815.6, which "provides a statutory exception to the general rule of public entity immunity: 'Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.' (Gov. Code, § 815.6.)" (B.H., at p. 179.)
"[S]ection 815.6 provides that the public entity 'is liable' for an injury proximately caused by its negligent failure to discharge the duty." (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499-500.) It "has three elements that must be satisfied to impose public entity liability: (1) a mandatory duty was imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury allegedly suffered; and (3) the breach of the mandatory statutory duty proximately caused the injury." (B.H., supra, 62 Cal.4th at p. 179.) Here, the second element is uncontested, so we need not address it.
1. Mandatory duty
There is no dispute the County had a duty under CANRA to report the child abuse allegations to law enforcement. But the parties disagree as to the specific source of that duty. Plaintiffs believe the duty arose through the social worker under section 11166, subdivision (a), which states that "a mandated reporter shall make a report to an agency specified in Section 11165.9 [which includes law enforcement] whenever the mandated reporter . . . has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect." We will refer this duty as the mandated reporter duty.
The County admits it had a duty to report the mother's allegations to law enforcement, but it asserts that duty arose under section 11166, subdivision (j)(1). This subdivision establishes what we will refer to as the cross-reporting duty. It states that "[a] county . . . welfare department shall immediately, or as soon as practicably possible, report . . . to the law enforcement agency having jurisdiction over the case . . . every known or suspected instance of child abuse or neglect . . . . " (§ 11166, subd. We agree with the County and find its duty to report the allegations against Beltran to law enforcement stems from 11166, subdivision (j)(1), not subdivision (a).
Section 11166, subdivision (a) applies to "mandated reporters," which includes 44 classes of professionals who work in positions where abuse is likely to be detected. (B.H., supra, 62 Cal.4th at pp. 178, 185.) Examples of mandated reporters include teachers, physicians, marriage and family therapists, clergy members, and social workers. (§ 11165.7, subd. (a).) Under this subdivision, mandated reporters must "'report promptly all suspected and known instances of child abuse to authorities.'" (B.H., at p. 190.) After mandated reporters have informed authorities of the child abuse allegations, their duty is over. Governmental authorities then take control of the case and investigate the allegations. (Ibid.)
Social workers are in a unique position. They are mandated reporters, but unlike the typical mandated reporter, they also investigate alleged cases of child abuse that county welfare agencies receive from other mandated reporters or other parties (e.g., the mother in this case). (B.H., supra, 62 Cal.4th at pp. 193-194.) Under this unique dual role, "section 11166, subdivision (a) does not require [a social worker investigating] an initial report of child abuse that has been received by an agency to make additional reports about the same incident." (See id. at p. 186.) Such is the case here. The social worker was investigating an initial report of child abuse that the County received from the mother. While her investigation uncovered new allegations of abuse by Beltran towards E.N., they were all related to the mother's initial report to the County. So, the social worker was not required to report these allegations to law enforcement under section 11166, subdivision (a).
In contrast, section 11166, subdivision (j)(1) "imposes an obligatory duty . . . upon [child welfare] agencies to cross-report the child abuse or neglect reports that it receives" to law enforcement. (See B.H., supra, 62 Cal.4th at pp. 178, 181.) There is also a reciprocal duty for law enforcement agencies to cross-report suspected instances of child abuse to child welfare agencies under section 11166, subdivision (k). These cross-reporting duties ensure that other investigating agencies are informed of the alleged abuse. (B.H., at p. 194.) Here, the County had a duty to inform law enforcement of the mother's allegations under section 11166, subdivision (j)(1). While plaintiffs' opening brief failed to cite this subdivision, we will consider it in our analysis since the County discussed it at length in its respondent's brief. (See American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 276.)
2. Proximate cause
Plaintiffs maintain there are questions of fact as to whether the County's failure to cross-report the allegations against Beltran caused them to suffer six more years of abuse. Among other things, their opposition to the County's motion for summary judgment contained a declaration from a retired San Diego detective with extensive experience investigating child abuse. She opined that "[h]ad the County cross-reported, more likely than not a secession of child sexual maltreatment involving Alex Beltran would have occurred since the Anaheim Police Department Sexual Assault Detail would have conducted an investigation by a multidisciplinary team resulting in Beltran's arrest." The County insists plaintiffs cannot show causation as a matter of law because determining whether the police would have investigated and arrested Beltran requires too much speculation. We agree with plaintiffs and find that proximate cause in this case is a question of fact for the jury.
"To be considered a proximate cause of an injury, the acts of the defendant must have been a 'substantial factor' in contributing to the injury. [Citation.] Generally, a defendant's conduct is a substantial factor if the injury would not have occurred but for the defendant's conduct. [Citation.] . . . As our high court has explained, '"a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor."'" (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1303.) "'Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law . . . . Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.'" (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 353 (State Hospitals).)
Plaintiffs cite two cases that discuss causation in the context of a breach of a statutory duty to report child abuse. Each found that proximate cause was a question of fact for a jury. In Landeros v. Flood (1976) 17 Cal.3d 399 (Landeros), the minor plaintiff brought negligence claims against a physician and the hospital that employed him. The defendants examined the plaintiff when she was 11 months old. She had bruises on her back, a fracture in her right leg, and her injuries appeared to have been inflicted by other persons. The plaintiff alleged that the defendants negligently failed to diagnose her with battered child syndrome. (Id. at pp. 405-406.) Had they properly diagnosed her, she asserted they would have been required to "report[] her injuries to local law enforcement authorities or juvenile probation department [under the Penal Code]. Such a report would have resulted in an investigation by the concerned agencies, followed by a placement of [the] plaintiff in protective custody until her safety was assured." (Id. at p. 406.)
Landeros involved a similar predecessor statute to section 11166. (See Landeros, supra, 17 Cal.3d at pp. 407, 413; B.H., supra, 62 Cal.4th at pp. 188-189, fn. 6 [explaining that CANRA was reenacted following Landeros].)
Due to the missed diagnosis, the plaintiff was released from the hospital and returned to her mother and her mother's husband, who continued to abuse her. The plaintiff subsequently sustained severe injuries to her body, including the probable loss of her left hand. She was then brought to another hospital and seen by a different physician, who diagnosed her with battered child syndrome and reported it to law enforcement. The plaintiff was promptly taken into protective custody and placed with foster parents. (Landeros, supra, 17 Cal. 3d at pp. 406-407.)
In reviewing the defendants' demurrer to the complaint, our Supreme Court found that proximate cause could not be determined as a matter of law: "We cannot say categorically that an ordinarily prudent physician who had correctly diagnosed that plaintiff was a victim of the battered child syndrome would not have foreseen the likelihood of further serious injuries to her if she were returned directly to the custody of her caretakers." (Landeros, supra, 17 Cal.3d at p. 412.) It ruled the plaintiff was "entitled to prove by expert testimony that defendants should reasonably have foreseen that her caretakers were likely to resume their physical abuse and inflict further injuries on her if she were returned directly to their custody." (Ibid.)
Landeros was expanded upon by Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180 (Alejo), which addressed a former, similar version of section 11166, subdivision (a) (Stats. 1996, ch. 1081, § 3.5, p. 7410). The plaintiff in Alejo was three years old and lived with his mother and her boyfriend. (Alejo, at p. 1183.) His father observed him with a black eye and suspected the mother and her boyfriend were abusing him. A few days later, a neighbor of the mother called the father and reported that the mother and her boyfriend were using drugs and that the boyfriend was beating the plaintiff. The father immediately contacted the police and told them about the black eye and the neighbor's allegations. (Ibid.) The police failed to investigate and failed to report the alleged abuse to other government agencies. Six weeks after the father's report, the boyfriend severely beat the plaintiff, leaving him permanently disabled. The plaintiff filed a negligence claim against the City of Alhambra and the officer that had received the report, alleging they had failed to investigate or report a reasonable suspicion of child abuse under CANRA. (Id. at pp. 1183-1184.)
The city demurred, arguing "as a matter of law the connection between [the officer's] alleged failure to investigate or report the abuse of [the plaintiff] and [the plaintiff's] subsequent injuries [was] too conjectural or speculative to support a cause of action for negligence." (Alejo, supra, 75 Cal.App.4th at p. 1190.) It claimed the plaintiff could not "establish that but for [the officer's] failure to investigate or report past instances of child abuse future abuse would have been prevented. The city assert[ed] whether an investigation or report would have prevented future abuse of [the plaintiff] by [the boyfriend was] purely speculative because it [was] unknowable what child welfare workers would have done with [the officer's] report had it been made." (Id. at p. 1191.)
The court in Alejo rejected this argument, stating it was obvious that "the Legislature believed compliance with the investigating and reporting requirements of [CANRA] would be a substantial factor in preventing child abuse. Conversely, the failure to investigate or report occurrences of child abuse greatly enhances the chances of repeated and more severe abuse, as discussed in [Landeros]." (Alejo, supra, 75 Cal.App.4th at p. 1192.) The court found that based on Landeros, the plaintiff was "entitled to prove by way of expert testimony a reasonably prudent social worker would have responded to the alleged facts of his abuse in a way which would have prevented his subsequent injuries. Considering the allegations . . . , such as the physical abuse suffered by [the plaintiff], his black eye and the drug use by his mother and [her boyfriend], it [was] not difficult to believe the county welfare department would have taken affirmative steps to protect [the plaintiff]. Whether or not the department would have done so is not a matter of speculation but a question of fact to be determined at trial through expert testimony." (Alejo, at p. 1192.) While another portion of Alejo was later disapproved of by B.H., its causation analysis remains good law. Indeed, B.H. observed that "'the Legislature [has] recognized case law that ha[s] permitted a civil suit for injury to a child where there was a breach of the mandated reporter's duty to report child abuse.'" (B.H., supra, 62 Cal.4th at pp. 187-188, fn. 6.)
Landeros and Alejo are slightly different than the case at hand, as they involved the mandated reporter duty, not the cross-reporting duty. Nonetheless, their principles still apply, as both duties were designed to decrease incidents of child abuse. In enacting CANRA, the Legislature sought "'to clarify the duties and responsibilities of those who are required to report child abuse. [CANRA was] designed to foster cooperation between child protective agencies and other persons required to report. Such cooperation [is intended to] insure that children will receive the collective judgment of all such agencies and persons regarding the course to be taken to protect the child's interest.'" (B.H., supra, 62 Cal.4th at pp. 182-183, italics added.) In particular, the cross-reporting duty was "intended to rectify the problem of inadequate child abuse reporting . . . between law enforcement and child welfare agencies." (Id. p. 183.) It recognizes that neither law enforcement nor child welfare agencies have the expertise to investigate child abuse cases alone. (Ibid.) "[T]he Legislature intended that the various law enforcement and child welfare agencies immediately communicate to each other information received on alleged child abuse or neglect so that they can in turn coordinate their investigative procedures." (Id. at pp. 185-186.)
Given this background, it was foreseeable that plaintiffs might suffer additional abuse if the County failed to cross-report the mother's allegations to law enforcement. CANRA anticipates that a single investigatory agency acting alone might miss cases of child abuse, as happened here. The cross-reporting duty was intended to minimize this risk. The County's breach of this duty deprived plaintiffs of their protections under CANRA and increased the likelihood that they would endure additional sexual abuse. Though there are questions as to what the Anaheim PD would have done had the County cross-reported, the causal chain is not so ethereal as to preclude plaintiffs from establishing proximate cause. As in Alejo, we find that plaintiffs are "entitled to prove by way of expert testimony [that the Anaheim PD] would have responded to the alleged facts of [their] abuse in a way which would have prevented [their] subsequent injuries. . . . Whether or not [the Anaheim PD] would have done so is not a matter of speculation but a question of fact to be determined at trial through expert testimony." (Alejo, supra, 75 Cal.App.4th at p. 1192.)
The County primarily relies on State Hospitals, a case involving the Sexually Violent Predators Act (SVPA). The SVPA authorizes the involuntary civil commitment of persons deemed to be sexually violent predators after they have completed their prison term. (State Hospitals, supra, 61 Cal.4th at p. 344.) In State Hospitals, an initial assessment by the Department of Corrections determined an inmate was likely to be a sexually violent predator. He was referred to the defendant, the State Department of Mental Health (DMH), for a full evaluation. By statute, the DMH's evaluation was required to be performed by two psychiatrists or psychologists (or one of each). However, the inmate only saw one evaluator instead of two. The sole evaluator determined the inmate was suitable for release. Days after his release, the inmate raped and murdered the plaintiff's sister. The plaintiff sued, claiming the inmate would have been civilly committed had he been seen by two evaluators as required under the SVPA. (Id. at pp. 346-347.)
Our Supreme Court found as a matter of law that the DMH's breach of this statutory duty was not the proximate cause of the sister's death. There were too many discretionary decisions within the causal chain to establish causation. (State Hospitals, supra, 61 Cal.4th at pp. 355-356.) Even if a second evaluation had been done as required, that evaluator would have needed to reach the opposite conclusion of the first evaluator and find the inmate was a sexually violent predator. Had this occurred, the inmate would have been examined next by two different professionals. Only if they both agreed that the inmate was a sexually violent predator would a request be made to the county's counsel to file petition for commitment. If counsel agreed with the request, it would file a petition in the superior court. The court would then evaluate the petition for probable cause. If none existed, the petition would be dismissed. Conversely, if it found probable cause, the last step required a jury to determine beyond a reasonable doubt that the inmate was a sexually violent predator. (Id. at pp. 344-346, 355-356.)
State Hospitals is distinguishable. Along with the other cases cited by the County, it involved a different statutory scheme. Further, the causal chain in State Hospitals involved several interdependent steps of discretionary review by independent actors: a second evaluator, two other independent professionals, the county's counsel, the trial court, and then a jury. Civil commitment would only occur if all these actors found that the inmate was a sexually violent predator (or that there was sufficient evidence for such a finding). If any of these actors disagreed, the inmate would have avoided civil commitment. As described by the Court, the plaintiff in State Hospitals had to "posit a subsequent unbroken series of discretionary findings contradicting the first evaluator's conclusion and leading to civil commitment. [N]one of these intermediate findings could individually have determined the outcome. [Citation.] . . . [Her] showing of 'but for' causation was weak, because with each step in the review process the results [became] more speculative." (State Hospitals, supra, at pp. 355-356.)
Certainly, the decision to arrest Beltran would have required the Anaheim PD to exercise discretion. But this case does not require the plaintiffs to cobble together an unbroken chain of interdependent discretionary findings. Unlike the actors in State Hospitals, the Anaheim PD could have individually changed the outcome in this case. Had it determined that Beltran was sexually abusing plaintiffs, it could have arrested him and ended the abuse. Its decision would not have required the agreement or approval of any other independent actor. Though some discretion is involved here, like Landeros and Alejo, the causal chain is sufficiently tangible to allow a jury to hear evidence as to whether the County's breach of duty was the proximate cause of plaintiffs' injuries.
This conclusion is bolstered by passages within State Hospitals clarifying the scope of its holding. Despite the numerous discretionary steps within the SVPA review process, State Hospitals recognized that proximate cause could be found "if a mandatory duty imposed by the SVPA is breached." (State Hospitals, supra, 61 Cal.4th at p. 356.) For example, "if the DMH failed to evaluate an inmate at all, or neglected to forward a request for a civil commitment after two evaluators found an inmate to be [a sexually violent predator]." (Ibid.) In contrast, the DMH's breach of duty in State Hospitals "did not result in the absence of any evaluation, or the failure to act on evaluations as required by law. [The] [p]laintiff's claim, while premised on the breach of a mandatory duty, [was] in effect a complaint about how the evaluation of [the inmate] was performed. . . . [I]f the review conducted by the single . . . evaluator had been performed by [the Department of Corrections] at the previous stage of the review process, [the inmate] would have been released without any referral to [the defendant], and no cause of action would lie." (Id. at pp. 356-357, first italics added.) Here, the County's breach of duty is similar to the examples of plausible SVPA claims identified in State Hospitals. Its failure to cross-report resulted in the complete absence of an investigation by the Anaheim PD.
Next, the County argues that the declaration of plaintiffs' expert is insufficient to raise a triable issue of fact "because it is based on a demonstrably fundamental inaccurate assumption that there was no report by the County to the [Anaheim PD] of any sexual abuse allegations involving E.N." Specifically, the County asserts there was a parallel investigation of sexual abuse allegations against Beltran involving E.N.'s minor cousin. The County claims this parallel allegation was referred to the Anaheim PD and included the same allegations as E.N.'s report of abuse.
However, the only evidence in the record that any cross-report was made involving Beltran is a declaration from the County's attorney. The declaration states that the County investigated a companion case to E.N.'s referral and that the allegations in the companion case were cross-reported to law enforcement (the cross-report). The declaration maintains the companion case involves many of the same allegations reported by E.N. and his mother. But none of the documents from the companion case or the cross-report are in the record. Nor does it appear that they were before the trial court. As such, we cannot determine whether the cross-report has any bearing here. When the County raised this issue at the trial court hearing, plaintiffs stated the cross-report "does not even mention [plaintiffs]." They also questioned its authenticity, contending that "[s]omeone dummied it up. If you look at the document, you can tell [for] yourselves that they use a 2017 form, even though all the dates on it say that it was created in 2011." Since the cross-report is not in the record and its contents and authenticity are disputed, we cannot resolve this issue as a matter of law. The impact of the cross-report is an issue for the trier of fact to determine.
The County learned of the companion case shortly before its deadline to file a motion for summary judgment. It requested the files from the companion case from the juvenile court but did not receive them until just prior to its reply deadline. --------
III
DISPOSITION
The trial court's judgment is reversed. Plaintiffs are entitled to their costs on appeal.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J.