(H.) B. v. COUNTY OF SAN BERNARDINOAppellant’s Petition for ReviewCal.August 30, 2013 $213066 CCPY2neo S 4th.Dist. No. E054516 IN THE SUPREME COURT SUPREME COURT FILED STATE OF CALIFORNIA AUG 3 0 2013 B.H., A MINOR, BY AND THROUGH Frank A. McGuire Clerk HIS GUARDIANAD LITEM, LAURI HANSON, Deputy Plaintiff and Appellant, VS. COUNTY OF SAN BERNARDINO, CITY OF YUCAIPA, Kk. SWANSON, JEFF BOHNER, LOUIS KELLY SHARPLESII, Defendants and Respondents. Appeal from the Superior Court of San Bernardino County Case No. CIVDS 913403 Hon. Donald R. Alvarez, Judge PETITION FOR REVIEW ESNER, CHANG & BOYER Andrew N. Chang, Bar No. 84544 Stuart B. Esner, Bar No. 105666 234 East Colorado Boulevard, Suite 750 Pasadena, California 91101 Telephone: (626) 535-9860 Attorneys for Plaintiff and Appellant TABLE OF CONTENTS TABLE OF AUTHORITIES ........ 0.0... ccc cc eects iv ISSUES PRESENTED ......... 00.00 e ce ee eee teen ees 1 WHY REVIEW SHOULD BE GRANTED ......... 00.20 e eee ee eee 2 STATEMENT OF FACTS ....... 0... eeeeeeee ee 4 A. Child Abuse Is Suspected by Family Members. .......... 4 B. A Report of Suspected Child Abuse Is Made to and Received and Recorded by the Sheriff's Department....... 6 C. In Addition to Failing to Cross-report the Kinney Report to Child Protective Services, the Sheriff's Department Dispatches a Deputy Who Observes Brayden’s Condition That as She and Her Supervisor Later Admit Should Have Caused the Deputy to Suspect Child Abuse; Nevertheless, the Deputy Downgraded the Child Abuse Report, Did Not Report, and as a Result of All These Failures Tragedy for Brayden Was Imminent. .......... 0... cece eee eae 7 D. Brayden Is Savagely Beaten by His Father Resulting in Permanent Brain Damage. ........ 0.0... cece eee eee es 10 E. The Law Enforcement Agency’s Failure to Cross-report to Child Protective Services as CANRA Requires Wasa Legal Cause of Brayden’s Catastrophic Brain Damage. ... 11 F, From its Commencement, this Action Has Been Based on Both the Mandatory Duty of Cross-reporting Breached by the Sheriff's Department as a Law Enforcement Agency and the Mandatory Duty of Reporting Breachedbyits Deputy (Swanson) as a Mandated Reporter. ............ 14 G. The Court of Appeal’s Opinion. ............ 0.000006. 15 ARGUMENT..... 0.00. ccc cece ee eee nent eet e eens 16 A. Penal Code Section 11166(k) — a Separate and Independent Mandatory Duty of the Sheriff's Department to Cross-report to the Child Protective Services Agency. .. 16 1. This mandatory duty of the law enforcement agency, separate from the duty to investigate and the deputy’s duty to report, has been recognized by the court since 1986. ....... 6. eee eee eee 16 2. The legislative history of CANRA supportsthis independent mandatory duty of the law enforcement agency notwithstanding the duties of the individual law enforcementofficer... 0.0.0.0... cee eee eee 17 3. This mandatory duty required the Sheriff's Departmentas a law enforcement agency to make three (3) cross-reports. ©... 6... e cee eee eee 18 4. This separate mandatory duty of a law enforcement agency to accept andcross-report all reports of suspected child abuse to the child protective services agencyis crucial to the safety of California’s children because uponreceipt of that cross-report child protective services must respond to that report either immediately or within 10 days, at the latest... 0...eeeee eee 19 The Court of Appeal’s Opinion Utterly Ignores the Express Languageof 11166(k), Rules of Statutory Construction, the Legislative History and Intent of CANRA,and Case Law. ...... 00.0. e ee eee eee ees 22 1. The Court of Appeal’s opinion imposes an imagined precondition on the cross-reporting expressly required under 11166(k) whichis not found in CANRA orany case; namely that a “law enforcement agency” must withhold informing child protective services pursuant to 11166(k) of a report of suspected child abuse received from a non- mandated reporter pursuant to 11166(g) until “after an investigation of the reported abuse has been undertaken” and not unless a “reasonable suspicion” “arises in the mind of an employee of a law enforcement agency.” .. 0.6... cece eee eee eee 22 2. Unlikethe initial reporting standards set forth in 11166(a) and 11166(g), there is no objective reasonableness standard for the cross-reporting requirementin 11166(k). The only trigger is the receipt of a report of suspected child abuse by the law enforcement agency. ....... 0... e eee eee 26 ii 3, The opinion confuses and conflates the distinct, express cross-reporting duties of a “law enforcement agency” under 11166(k) with the individual initial reporting duties of a mandated reporter under 11166(a). ..... 2.0... eee ee eee eee 29 4. The opinion applies a “subjective” standard as opposedto the “objective” standard when determining whether a duty was owed by a mandated reporter of child abuse pursuantto Penal Code 11166(a) and Alejo v. City ofAlhambra (1999) 75 Cal.App 4th 1180, and improperly applies discretionary immunity to a mandatory uty, eee eens 30 CONCLUSION ..... 0... ccc cette een eens 36 CERTIFICATE OF WORD COUNT ......0..00cce cece cence ees 37 lil TABLE OF AUTHORITIES CASES Alejo v. City ofAlhambra (1999) 75 Cal.App 4th 1180 .......... Passim Elsner v. Uveges (2004) 34 Cal.4th 915 ............ Lecce eee ee eee 27 Guzman v. County ofMonterey (2009) 46 Cal.4th 887 ................ 3 In re Duncan (1987) 189 Cal.App.3d 1348 0.0.0.0... ccc cee eee 2 Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456 2...occcn eee nes 23-26 Krikorian v. Barry (1987) 196 Cal.App.3d 1211..............004. 2,34 Landeros v. Flood (1976) 17 Cal.3d 413 20... . cece eee 33 New York v. Ferber (1982) 458 U.S. 747 ooceeees 2 Ortega v. Sacramento County Dept ofHealth and Human Services (2008) 161 CalApp.4th 713 20...eceens 25 People v. Knoller (2007) 41 Cal.4th 139 ......... 0.00... cc eee eee 26 Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245 20...ceeees 3, 16 Ramos v. County ofMadera (1971) 4 Cal.3d 685 ....... 00.00.00 ae, 35 Romo v. Southern Pacific Transportation Co. (1977) 71 Cal.App.3d 909 2...eens33 Santisas v. Goodin (1998) 17 Cal.4th 599 1.0...eee26 Wheeler v. County ofSan Bernardino (1978) 76 Cal.App.3d 841 ...... 35 Woosley v. State ofCalifornia (1992) 3 Cal.4th 758 .............005. 27 STATUTES Gov. Code, § 820.2 2...cececere teen nes 25, 35 Gov. Code, § 821.6 2.0... ccc ccc eee tence eee eeas 25 iv Pen. Code, § 11166 2.0... eeeccc cece n ees Passim Pen. Code, § 11166.3 2.0... .ccceee eens 19, 23, 28 Pen. Code, § 11164 et seq. 0.eecteens 2 Pen. Code, §§ 11164-11173 20.0.ccceens 14 Pen. Code, § 11165.6, subd. (c)(2) 0... eecece ee ees 16 Pen. Code, §11165.7 00...ccccee een ence eens 29 Pen. Code, §11165.09 20...ceceeens 29 Pen. Code, § 11165.9 2... ieeecee ence ees 19 Pen. Code, §11165.12 .... eeecee es vee e eee eee 32, 34 Pen. Code, § 11167.5 2...Lecceene ne nes 16 Pen. Code, § 11169 2...ccceens 32, 34 Welf. & Inst. Code, § 300 2.0...cccete een ees 18 Welf. & Inst. Code, § 16501(f) «0...eeeeee 20 MISCELLANEOUS Assem. Com. On Criminal Justice, Public Hearing on Child Abuse Reporting, November 21, 1978, Senate Bill 781, Chapter 1071, Statutes of 1980 (1977-1978 Reg. Sess.) . 0... ccc cee eee teens 17 State Bar of Cal., Rep. on Assem.Bill No. 2497, supra, pp. 1-2; Legis. Counsel’s Dig., Sen. Bill No. 718, 3 Stats. 1980 (Reg. Sess.) Summary Dig.P3338 cece cece cece ee cece eeveetevceerenveteueennveres 34 ISSUES PRESENTED Whether, under the clear text ofCANRA (Penal Code section 11166(k)) as well the legislative history explaining whythat provision was enacted, a law enforcement agency had a mandatory duty to immediately, or as soon as practicably possible, cross-report to the county’s child protective services agency every known or suspected instance of child abuse or neglect reportedto it, and to follow that cross-report with an additional written cross-report within 36 hours of receiving the information concerning the incident or, as the Court of Appeal held, despite the use of mandatory language in the statute, the law enforcement agency had discretion whether to makea cross report to the child protective services agency, an agencyspecifically tasked with protecting children? Does CANRA (Penal Code section 11166(a)) create an objective standard under which mandatedreporters are required to make a report “whenever the mandatedreporter, in his or her professional ‘capacity or within the scope of his or her employment, has knowledgeof or observes a child whom the mandated reporter knowsor reasonably suspects has been the victim of child abuse or neglect” or, as the Court of Appeal held, does this section allow a mandated reporter to withhold a report as long as she claims she subjectively (and even unreasonably) believed no abuse occurred, and in reaching that erroneous holding did the Court of Appeal improperly apply discretionary immunity to a mandatory duty? WHY REVIEW SHOULD BE GRANTED GOOGAs a society, we have deemed““[t]he prevention of sexual exploitation and abuse of children [to be] a government objective of surpassing importance.’” (Jn re Duncan (1987) 189 Cal.App.3d 1348, 1359, citing New York v. Ferber (1982) 458 U.S. 747, 757.) The Child Abuse and Neglect Reporting Act (CANRA)(§ 11164 et seq.) was expressly enacted to protect children from abuse and neglect. (§ 11164.) To that end, CANRA’s primary focusisto rectify the problem of inadequate child abuse reporting. (§ 11164 et seq.; Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1217.) The issues presented for review concern the two most important aspects of child abuse reporting: 1. The requirementof cross-reporting of initial reports between a law enforcement agency and child protective services agency is critical component of CANRA that has been recognized since its enactment: “Thechild protective agency receiving the initial report must share the report with all its counterpart child protective agencies by means of a system of cross-reporting. An initia] report to a probation or welfare departmentis shared with the local police or sheriff's department, and vice versa. Reports are cross-reported in almostall cases to the office of the district attorney. (§ 11166, subd. (k); Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 259-260.) CANRA’ssystem of immediate cross-reporting and 36-hour follow-up written cross-reporting by law enforcementto child protective services is absolutely critical because child protective services is mandated to intervene on all reports of imminent danger immediately, and to follow up on all other reports within an absolute drop dead time limit of 10 days. The San Bernardino County Sheriff's Department’s failure to comply with CANRA’scross-reporting requirements to the San Bernardino County’s child protective services agency (called Department of Children’s Services, or DCS) caused the breakdownofthe system that resulted in irreversible brain damageto this 5 year-old plaintiff and, unless rectified by this Court, countless future children in this and perhaps many other counties in California will be at risk of similar catastrophic child abuse. 2. Likewise, CANRA imposesan objective standard, requiring the 40 categories of mandated reporters to make a report of abuse “whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knowsor reasonably suspects has been the victim of child abuse or neglect.” (Pen. Code, § 11166, subd. (a); Alejo v. City ofAlhambra (1999) 75 Cal.App 4th 1180.)' The Legislature in subsequent amendment to CANRA in 2000 expressly recognized the 1 This Court discussed Alejo with approval in Guzman v. County ofMonterey (2009) 46 Cal.4th 887, 904-905. desired continued validity of Alejo. The Court of Appeal’s opinion below utterly ignored these two crucial components of CANRA andaffirmed a summary judgmentthat, unless corrected by this Court, will result in a tragic miscarriage ofjustice. The largest law enforcement agencyin the largest county in the State of California does not know howto interpret or implement thecritical cross-reporting mechanism of CANRA. The Court of Appeal for the Fourth District, Division Two has demonstrated that it too does not understand what CANRA expressly says and how it works. This petition presents this Court with the ideal and timely opportunity to address an issue of statewide concern to our society that, as the United States Supreme Court recognizes, encompassesa “government objective of surpassing importance,” while also preventing a grave injustice to this brain-damaged minorplaintiff and other present and future helpless victims of child abuse. STATEMENT OF FACTS A. Child Abuse Is Suspected by Family Members. Onthe evening of September 21, 2008, Lauri Hanson picked up her five year-son Brayden after a court-ordered weekendvisitation with the boy’s father. Ms. Hanson immediately noticed disturbing bruises on Brayden’s right forehead, right eye, left forehead, left eye, and a cut on his left eye, and wastold that he had fallen downthestairs at a fast food restaurant. (AA 428-431, 487-503.) Upon returning home, Ms. Hanson changed Brayden’s clothing and saw that Brayden also had disturbing bruises onhis left thigh, right thigh, mid-upperchest, right chest, mid-lower back, mid-upper back, lowerright back and lowerright side of his abdomen/flank. Christy Kinney, who was the woman whoraised Ms. Hanson and with whom she and Brayden were living, advised her to photographthe injuries. (AA 428-429.) Photographs were taken by Ms. Hanson on September 22 at 2:34 p.m. (AA 428-431, 487-503, 553-597.) Ms. Hanson and Brayden lived with Ms. Kinney, who considered herself a mother to Ms. Hanson and a grandmother to Brayden because Ms. Hansonhadlived with her for periods oftime when Ms. Hanson was a youth. (AA 476-478.) When Ms. Kinney returned home from work and saw with her owneyesthe suspicious injuries, she asked Brayden how he got the bruises depicted on the photos, and Brayden told Ms. Kinneythat he had fallen out of a truck. (AA 474-477.) Ms. Kinney then had hernatural daughter (Jennifer Kinney) also take photographs of Brayden’s injuries. (AA 500-503, 517-522.) These several photographs were taken on September 22 between 2:35 and 7:35 p.m. (AA 415, 500-503, 517-522, 553-597.) The bruises depicted on these photographs were witnessed by eight of Brayden’s family members/friends on that date. (AA 428-431, 484-486, 500-503, 517-522, 525-527, 530-532, 535-537, 540-541, 545-547.) B. . A Report of Suspected Child Abuse Is Madeto and Received and Recorded bythe Sheriff's Department. Ms. Kinney wasdeeply disturbed about the bruisesall over the child’s body and suspected that the bruises were caused by Sharples, so she called 911 to report suspected child abuse at 10:14 p.m. (AA 470-471, 474-475.) San Bernardino County Sheriff's employee, Officer Nicole Kinkade, spoke to Ms. Kinney and recorded the following observations in the Sheriff's Computer Aided Dispatch system: “2 year old juvenile wasat father’s house for the weekend and came homewith bruises on his forehead. Luis Sharples date of birth unknown, 19 year old lives at unknown address on California Street. Mother ofjuvenile is Lori Hanson DON 12/07/1988 is not at location. Reporting party is the grandmother,states juvenile told her that he fell out of the father’s truck. Reporting party spoke to father’s girlfriend, whostates the juvenile fell at a fast food place on somestairs. Reporting party feels the bruises are from the father hitting the juvenile. Requesting deputy for report.” (AA 470-471.) Officer Kinkade, after speaking with Ms. Kinney,classified the report madeto the Sheriff's Department as “273R” — the penal code numberfor child abuse — and which wasa report of child abuse. (AA 470-471, 506-507.) Officer Kinkade then dispatched it asa “CHILD ABUSERPT.” (AA 470-471, 506-507.) It is undisputed that the Sheriff's Departmentnever cross-reported the report of suspected child abuseit received from Christy Kinney to the child protective services agency either immediately by phone, fax or electronic transmission or within 36 hours via a written report, as required by Cal. Penal Code 11166(k). (AA 442, 640, 643-644, 669-670.) C. In Addition to Failing to Cross-report the Kinney Report to Child Protective Services, the Sheriff's Department Dispatches a Deputy Who Observes Brayden’s Condition That as She and Her Supervisor Later Admit Should Have Caused the Deputy to Suspect Child Abuse; Nevertheless, the Deputy Downgradedthe Child Abuse Report, Did Not Report, and as a Result of All These Failures Tragedy for Brayden Was Imminent. Deputy Swanson, an employee of the San Bernardino Sheriff’ s Department, respondedto the dispatch regarding Ms. Kinney’s call. (AA 446.) Swanson understood that she was responding to a “CHILD ABUSE RPT.” (AA 444-445.) She went to the Kinney home, spoke with Ms. Kinney, and looked at Brayden. (AA 71.) Ms. Kinney asked Deputy Swanson to take photographs of Brayden,testified that Swanson wentoutto her patrol car to get a camera, returned from the patrol car with a camera and then took photographs of Brayden’s bruises. (AA 414, 432, 481-482.) Swansonlater testified that she did not take photographs.” (AA 453.) Upon leaving the Kinney residence, deputy Swanson returned to her patrol car and made additional entries into the CAD system. However, whereas Officer Kinkade had dispatched the Kinneycall as a “child abuse” incident (AA 470-471) and Deputy Swanson had understoodit to be a child abuse report (AA 444-445, 466-467, 470-471), Deputy Swanson 2 Deputy Swansondeniedat her deposition that she took pictures of Brayden, and denied any conversation with Ms. Kinney about photographs. (AA 453.) 7 downgradedthe incident to a “miscellaneousincident.” (AA 447-450, 468.) At her deposition, Deputy Swansontestified that “miscellaneous” describes minor incidents such as a “barking dog.” (AA 451.) However, Deputy Swanson’s typewritten report that she kept at the Sheriff's Departmentdid include references to a cut and bruising above Brayden’s right eye, and small old bruises on his upperright arm and back. (AA 311-313, 470-471.) Nevertheless, Deputy Swanson decided on her own, without discussion with anyone else or knowledgeofany prior contacts between her department and anyonerelated to plaintiff, that the call from Ms. Kinney was simply part of an on-going custody dispute between Brayden’s parents. (AA 452-456.) Therefore, shetestified, she did not report the Kinneycall to child protective services. (AA 440-442, 456.) Deputy Swansonis aware that, as a deputy sheriff and pursuantto the California Penal Code, she is a mandated reporter of suspected child abuse. (AA 437-438.) In fact, she has been trained to report child abuse allegations even when the same have been determined to be unfounded. (AA 469.) She understands that the purpose of the mandated reporting law is that “if a child abuse is suspected, it has to be reported to CPS [child protective services].” (AA 439.) Nevertheless, she has never reported to child protective services an alleged child abuse incident that she has investigated but in which she has not made an arrest. (AA 440-441.) It is her practice to report only those child abuse allegations that lead to someone’s arrest. (AA 440-442.) Deputy Swanson’s practice is contrary to proper law enforcementpractices. (AA 598-603.) Neither Deputy Swanson nor anyoneelse at the Sheriff's Department reported to any other agencythe fact that Christy Kinney hadcalled to report suspected child abuse of Brayden, or that Ms. Kinney’s report was being investigated. (AA 442, 640, 643-644, 669-670.) This is also contrary to proper law enforcement practices. (AA 598-603.) Despite Deputy Swanson’s claim she subjectively did not suspect child abuse from observing Brayden’s condition, there is ample evidence objectively that she should haveand, therefore, that her duty to report was triggered as required by the holding in Alejo v City ofAlhambra, 75 Cal.App.4th 1180, 1193-1194 and the language in 11166(a): ° Deputy Swanson admitted that she would have had a duty to report suspected child abuse if Brayden appearedas he did in the photographs which were forensically verified to have been unaltered and taken just four (4) hours before she arrived. (AA 464, 553-597.) ° Deputy Bohner agreed that Swanson would have to report and the child would have been taken into protective custody within hours if Brayden appearedas he did in those photographs. (AA 510-514.) ° Plaintiff's law enforcement expert (Lewis) and the County’s child protective services worker (Ashlock) agreed that the condition of Brayden would have caused a reasonable officer in Swanson’s position to suspect child abuse and trigger a duty to report, too. (AA 599-611, 622-623.) Christy Kinneytestified that Brayden looked exactly as he did in those verified photographs at the moment Deputy Swanson wasthere, and seven other personstestified that is how Brayden appeared immediately before and after Deputy Swanson arrived. (AA 482, 484-485, 517-522, 525-527, 530-532, 535-537, 540-541, 545-547.) Therefore, there is a genuine issue of material fact as to how Brayden looked at the time the deputy saw him. D. Brayden Is Savagely Beaten by His Father Resulting in Permanent Brain Damage. Despite grave concerns about leaving Brayden with Sharples any further, Lauri Hanson wasrequired to do so by a family court order. (AA 643-644.) On October 18, 2008, Sharples again beat and this time catastrophically injured Brayden. (AA 548-552, 627-628, 660-666.) Brayden’s head injury wasso severe that surgeons had to removea portion 10 of his skull to permit the brain to herniate beyond the skull’s boundaries. (AA 661-662.) Brayden also suffered retinal hemorrhages. (AA 663.) Mark Massi, M.D., the forensic pediatrician at Loma Linda Hospital who examined Brayden’s case for purposesofthe resulting child abuse investigation, opined that Brayden’s injuries were inflicted by another person and involved “abusive head trauma,”or “shaken baby syndrome.” (AA 664-665.) Sharples is a co-defendantin default in this action. E. The Law Enforcement Agency’s Failure to Cross-report to Child Protective Services as CANRA Requires Was a Legal Cause of Brayden’s Catastrophic Brain Damage. Leann Ashlockis the social worker with the County of San Bernardino’s child protective services agency(internally referred to as “DCS”, or Department of Children’s Services) who hasinvestigated approximately 1000 physical, sexual, or emotional abuse cases. (AA 614-615.) Ms. Ashlock had had contact with Brayden’s parents over the summer of 2008 — after Sharples had refused to return Braydenafter a visit — in which shefacilitated an agreement between Sharples and Hanson regarding Sharples’ visitation with Brayden. (AA 617-618.) She wasalso aware ofprior reports of suspected child abuse involving Brayden, which were investigated by her agency. (AA 641-644.) In short, this child was on Ms. Ashlock’s radar well prior to September 22, 2008. (AA 641-644.) 1] Because defendants did not cross-report Ms. Kinney’s call to child protective services, Ms. Ashlock knew nothing about the September 22, 2008 report of suspected abuse until after Brayden was permanently injured and hospitalized on October 18, 2008. (AA 619, 633-658.) Unlike the apparent practice of the San Bernardino Sheriff's Department, San Bernardino’s child protective services agency’s practiceis, consistent with CANRA,to cross-report to law enforcementin all cases of reported abuse in whichthe report does not originate with law enforcement. (AA 616.) Ms. Ashlocktestified that the child protective services agency would have followed up a cross-report within at most ten days of receiving it, which would have been well in advance of October 18. (AA 627-629.) Shetestified that had she seen Brayden’s condition in the September 22, 2008 photographs, the child protective services agency would have prevented Sharples from any further unsupervised visitation with Brayden. (AA 622-623, 625.) Also, the child protective services agency could have removed Brayden from both parents andpetitioned the court for appropriate protective orders that would have included only supervised parental visitation. (AA 620-624, 632.) In short, the child protective services agency would havetaken action that would have kept Brayden from being unsupervised in his father’s home on October 18, 2008 if she had been informed that he had the suspicious bruises depicted in the photographs: Q: Seeing that child, was there any way that — would you have let Louis Sharples be unsupervised with that child before you had madea final determination of what had happened to ren had seen him in this situation? 12 Q. Yes. A. I would have done anything in my powerto help Lauri protect her son. Q. Okay. Andthat includes taking steps not to let Louis Sharples be with him unsupervised? A. Correct. Yes. (AA 625.) She was outraged by the Sheriff Department’s failure to cross-report the Kinney September 22, 2008 child abuse report, as set forth and highlighted in bold in her jurisdictional report: “Deputy Swanson, however, did not make a cross report to the Department of Children’s Services, despite her duty as a mandatedreporte[r], therefore, the injuries [of September 22] were not investigated.” (Emphasis in original.) kk ...Furthermore, injuries to Brayden while in the care of the father had becomea pattern, and he had suffered significant injuries, which were not cross-reported to DCS, approximately three weeks prior to the day on which he wasirreparably brain damaged.... * OK ..- she was unable to get law enforcementto take the situation seriously on several occasions. Even when the child had obviousbruising and injury to his face, Deputy Swanson,despite being a mandatedreporter,failed to makea cross report to DCS, which would initiate intervention and an investigation by DCS. Onseveral occasions, Ms. Hanson appealed to the Family Law Court and expressed her concerns, but her concerns were ignored. By virtue of the court order, she was forced to allow the child to visit the father unsupervised, despite the child’s cries and obvious fear of going, and despite the fact that he had already sustained injuries while in the care of the father. Ms. Hanson’s hands weretied. Shetried to protect her son but wasnotgiven the support by those who had the power to stop the abuse from happening.” (AA 630-631, 640, 644, Emphasis addedto last three paragraphs.) 13 F, From its Commencement, this Action Has Been Based on Both the Mandatory Duty of Cross-reporting Breached by the Sheriff's Department as a Law Enforcement Agencyandthe Mandatory Duty of Reporting Breached by its Deputy (Swanson) as a Mandated Reporter. On September 11, 2009,plaintiff filed his complaint against the County, Swanson, Bohner and Sharples. (AA 1-36.) The complaint alleges throughoutthat the County’s Sheriffs Department violated CANRA (Penal Code 11164-11173), including the mandatory duty of the Sheriff's Department, itself, to cross-report under 11166(k) and of Swansonto report under 11166(a). (AA 18, 19, 20, 21, 22, 28, 29, 30, 31, 32.)? The County moved for summary judgment and/or summary adjudication, contendingits deputy could not be second-guessed for her inadequate investigation; however, the County failed to move for summary judgmentofPlaintiff's allegations that the law enforcement agencyitself had failed to cross-report pursuant to 11166(k). (AA 42-58.) Plaintiff opposed the County’s motion for summary judgmentonall groundsraised in the motion, and added argumentthat the Sheriff's Department violated 11166(k) even though the County failed to include that in its motion. (AA 365, 368, 369, 374, 375, 3 It is necessary for plaintiffto detail how thoroughly andconsistently he argued belowthat the Sheriffs Departmentviolated its mandatory duty to cross-report under section 11166(k), because the Court ofAppealin its opinion erroneously contends plaintiff never presented this theory until oral argument! (Opn., at p. 12, 15.) 14 383, 384.) Thetrial court granted summary judgment, howeverfailed to address the Plaintiff's argument that the County violated 11166(k) because it was not addressed in the Defendants’ motion. (RT 18-19.) Plaintiff objected to the proposed order granting summary judgment because neither the motion nor the Court’s ruling addressed Plaintiff's argument that the Sheriff's Department violated 11166(k). (AA 707, 708, 709, 710.) The trial court granted summary judgmentnonetheless, and judgment was entered in favor of Defendants on August 11, 2011. (AA 791-792.) On appeal, plaintiff clearly and fully argued in his opening and reply briefs that the Sheriff's Department violated 11166(k) (AOB1,3, 33, 34, 35, 36, 37,47; ARB 1, 2, 4, 5, 23, 24, 25, 26, 27, 28, 29, 30, 31.) Plaintiff even pointed this out in his letter to the court requesting an additional 15 minutes to explain CANRA to the panel (Letter to Court of Appealat pp.1, 2, 3, 4, 5, 6, 7, 12, 13). G. The Court of Appeal’s Opinion. In an unpublished opinion, the Court of Appeal affirmed. The numerouserrors in that opinion are laid out below. Plaintiff filed a petition for rehearing detailing those errors. The Court denied rehearing. This petition follows. 15 ARGUMENT A. Penal CodeSection 11166(k) — a Separate and Independent Mandatory Duty of the Sheriff's Department to Cross-report to the Child Protective Services Agency. 1. This mandatory duty of the law enforcement agency, separate from the duty to investigate and the deputy’s duty to report, has been recognized by the court since 1986. The cross-reporting ofinitial reports like Christy Kinney’s between law enforcement and child welfare servicesis a well-established process in California that has been recognized by the Courts since 1986: “The child protective agency receiving the initial report must share the report with all its counterpart child protective agencies by meansof a system of cross-reporting. An initial report to a probation or welfare departmentis shared with the local police or sheriff’s department, and vice versa. Reports are cross-reported in almostall cases to the office of the district attorney.... A child protective agency receiving the initial child abuse report then conducts an investigation.” Planned ParenthoodAffiliates v. Van de Kamp, supra, 181 Cal.App.3d 245 3 259-260, citing § 11167.5, § 11165.6, subd. (c)(2); see AOB 35-36.) 16 2. Thelegislative history of CANRA supports this independent mandatory duty of the law enforcement agency notwithstanding the duties of the individual law enforcementofficer. The cross-reporting of “initial” reports received was one of the driving forces behind the implementation of CANRA,as confirmedbythe Office of the Attorney Generalin the legislative history: “Because if a policemanor social worker makesthat decision by themselves, they do not have the expertise that is required by all of those agencies collectively to make that decision.... I wantalternative reporting in the sense that either agency, if the police gets the report first, we provide that they immediately advise D.P.S.S. and vice versa. If D.P.S.S. gets it, they immediately advise police....It is just the idea of people being apprised and getting a follow-up because the next time it may be the police who respond,andif they know the welfare worker responded last week,thatis going to be significant to them and vice-versa. And thatis why wehaveprovidedthat in both cases, each agency reports to the other.” (Assem. Com. On CriminalJustice, Public Hearing on Child Abuse Reporting, November 21, 1978, Senate Bill 781, Chapter 1071, Statutes of 1980 (1977-1978 Reg. Sess.), testimony of Deputy Attorney General Michael Gates, pp. 6, 7, 11, 21 (emphasis added) 17 3. This mandatory duty required the Sheriff's Department as a law enforcement agency to make three (3) cross-reports. In summary, irrespective of anything required from an individual law enforcement officer, CANRA requires that the law enforcement agency itself inform child protective services about every initial report of suspected child abuse it receives from any personat the following junctures: 1) immediately, or as soon as practicably possible, it shall report by telephone,fax, or electronic transmission to the agency given responsibility for investigation of cases under Section 300 of the Welfare and Institutions Code andto the district attorney’s office every known or suspected instance of child abuse or neglect reported to it; law enforcement agencyshall report to the county welfare or probation department every knownor suspected instanceof child abuse or neglect reported to it whichis alleged to have occurred as a result of the action of a person responsible for the child’s welfare, or as the result of the failure of a person responsible for the child’s welfare to adequately protect the minor from abuse whenthe person responsible for the child’s welfare knew or reasonably should have knownthat the minor wasin danger ofabuse. [11166(k)]; 2) within 36 hoursof receiving the information concerning the incidentif shall send,fax, or electronically transmit a written report thereof to any agency to which it makes a telephone report underthis 18 subdivision [11166(k)], and; 3) within 36 hoursof starting its investigation,it shall report to the county welfare or probation departmentthatit is investigating the case [11166.3]. This language is mandatory and ministerial, requiring nothing other than passing along information at distinct times after a law enforcement agency receives a report of suspected child abuse. 4, This separate mandatory duty of a law enforcement agency to accept and cross-reportall reports of suspected child abuseto the child protective services agencyis crucial to the safety of California’s children because upon receipt of that cross-report child protective services must respond to that report either immediately or within 10 days,at the latest. Pursuant to Penal Code 11165.9, a child protective services agency (which includes both a law enforcement agency such as the San Bernardino Sheriff Department, and a child protective services agency, Department of Children’s Services) must accept a report of suspected abuseor neglect from non-mandatedreporters, like Christy Kinney: «...Any of those agencies shall accept a report of suspected child abuse or neglect whether offered by a mandated reporter or another person.... Agencies that are requiredto receive reports of suspected child abuse or neglect may not refuse to accept a report of suspected child abuse or neglect from a mandatedreporter or another person 19 unless otherwise authorized pursuantto this section, and shall maintain a record ofall reports received.” Also, Penal Code 11166(b)(5) states: “Nothing in this section shall supersede the requirementthat a mandatedreporter first attempt to makea report via telephone, or that agencies specified in Section 11165.9 accept reports from mandated reporters and other persons as required.” Per 11166(g), Christy Kinney was“another person” who was permitted to report knownor suspected abuse/neglect: “(g) Any other person who has knowledgeof or observes a child whom he or she knowsor “reasonably suspects” has been a victim of child abuse or neglect may report the knownorsuspected instance of child abuse or neglect to an agencyspecified in Section 11165.9....” Upona law enforcement agency’s receipt of a report of suspected child abuse from someonesuch as Ms.Kinney, timely law enforcement agency cross-reporting to child protective servicesis critical for children’s safety because unlike law enforcement which hastotal discretion to start its investigation of the report wheneverit wishes, child protective services has no such discretion and is mandated to stand readyat all times, and to begin investigation within definite time periods proscribed by WIC 16501(f): “f) As used in this chapter, emergency responseservices consist of a response system providing in-person response, 24 hours a day, seven days a week, to reports of abuse, neglect, or exploitation, as required by Article 2.5 (commencing with Section 11164) of Chapter 2 of Title 1 of Part 4 of the Penal Codefor the purposeof investigation pursuant to Section 11166 of the Penal Code and to determinethe necessity for providinginitial intake services andcrisis intervention to 20 maintain the child safely in his or her own homeorto protect the safety of the child. County welfare departments shall respond to any report of imminent dangerto a child immediately andall other reports within 10 calendar days.” Child protective services cannot respond immediately to imminent danger, or even within ten daysto all other reports of suspected abuse, if a law enforcement agencyfails to cross-report all reports of suspected child abuse whichit receives to child protective services. 21 has been undertaken”and not unless a “reasonable suspicion The Court of Appeal’s Opinion Utterly Ignores the Express Languageof 11166(k), Rules of Statutory Construction, the Legislative History and Intent of CANRA, and Case Law. The Court of Appeal’s opinion imposes an imagined precondition on the cross-reporting expressly required under 11166(k) which is not found in CANRA oranycase; namely that a “law enforcement agency” must withhold informing child protective services pursuant to 11166(k) of a report of suspected child abuse received from a non-mandated reporter pursuant to 11166(g) until “after an investigation of the reported abuse has been undertaken”and not unless a “reasonable suspicion” “arises in the mind of an employeeof a law enforcement agency.” In one blind stroke, the Court of Appeal eviscerates CANRA by holding that a law enforcement agency must withhold informing child protective services of a report of suspected child abuse received from a non-mandated reporter until “after an investigation of the reported abuse 99 66 arises in the mind of an employee of a law enforcement agency.” (Opn., at pp.14-15.) First, 11166(k) does not include any language which requires an investigation by law enforcement before cross-reporting. 22 Second, the legislature would not require law enforcementtotell child protective services within 36 hours ofstarting an investigation of a report of suspected abuse pursuant to 11166.3 if it intended law enforcementto first complete its investigation before doing the cross-report referenced in 11166(k), as the Court of Appeal’s opinion holds. Underthat scenario child protective services would first learn that there is an ongoing investigation into an unsubstantiated report of child abuse per 11166.3 (and, by default, learn about the report), but could not yet receive the “initial” cross report per 11166(k) according to the Fourth District, Division Two, because the assigned deputy had not completed her subjective analysis of the report received and substantiated the report. That is absurd. The Court of Appeal’s opinion simply cannot be squared with 11166.3 or 11166(k). Third, the Court of Appeal cites cases to support its holding, but those cases in fact militate against its holding because they hadthe type of immediate, pre-investigation cross-reporting of the initial report of suspected abuse between law enforcementand child protective services that is missing in this case — meaning both agencies were informed ofthe alleged report of child abuseinitially received by the other child protective services agency. In Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, the court explainedthis very clearly: “Finally, as set forth above, the relevant version of Penal Code formersection 11166, subdivision (i) required a county welfare departmentto “immediately, or as soon as practically possible” cross-report by telephone to certain public agencies “every knownor suspected instance of child abuse,” and to then submit certain written reports within 36 hours. Here, it is undisputed that Employees 23 cross-reported to the Newark Police Departmenteach of the three reports of alleged abuse it received.It is further undisputedthat, following receipt of each of those cross-reports, the Newark Police Department determined based on the evidence that the abuseallegations were unsubstantiated.” Jacqueline T., supra, at 473. Of extreme importance to the determination of this case, there was cross-reporting between the police and child protective services on each ofthe three (3) reports of alleged abuse madein Jacqueline T. even thoughthe individual investigators found the reports to be unsubstantiated: “[Thefirst report].....Yee cross-reported the alleged abuse to the Newark Police Department, which decided notto pursue anyaction at that time. Ultimately, Yee concludedina written investigative narrative that the child abuse allegations were unsubstantiated, noting in doing so that parents were engagedin a “messychild custody fight.” [The second report]... Like Yee, Richards also cross-reported the alleged abuse to the Newark Police Department. In doing so, Richards spoke to the officer assigned to the case, Detective Ramirez, who informed her that she was familiar with the family and had decided against pursuing a criminal investigation at that time, noting the family was dealing with several custodyissues. Ultimately, Richards deferred further investigation due in part to the ongoing and contentious family court proceedings and mediation. But Richards kept the matter open until 2000, whenthe third report of suspected abuse was received. [The third report]... In response to the third report, Richards again cross-reported to the Newark Police Department, speaking to Detective Ramirez on July 7, 2000. County, in conjunction with the Newark Police Department and the Alameda County District Attorney’s Office, then arranged for Child Abuse Listening, Interviewing and Coordination Center (CALICO)interviews of Roes 1 and2, which were conducted one-on-one by a forensic child interviewer on July 13, 2000. Ultimately,all three agencies—County, the Newark Police Departmentand the Alameda County District Attorney’s Office—concluded 24 based on the evidence that the sexual abuseallegations were unsubstantiated.” Jacqueline T., supra, at 461-462. That is exactly how cross-reporting of the “fnitial report” is supposed to work — all child protection agencies and the district attorney share the original report — regardless of whether they ultimately concludethe initial report is “unsubstantiated.” The Court of Appeal’s opinion in this case, however, repeatedly cites Jacqueline T., supra, and Ortega v. Sacramento County Dept ofHealthand Human Services (2008) 161 Cal.App.4th 713, in a grossly incorrect manner by indicating that the Jacqueline T. court held that there was no duty of an agency to cross-report under 11166(k) when that is untrue. First, and expressly to the contrary, Jacqueline T. actually assumed a breach of mandatory duty to cross-report! Jacqueline T., supra, at 473. Second, the issue in Jacqueline T. was not whether cross-reports were mandatory, but whether the mandatory cross-reports which were made were madetimely enough within the constraints of the statute (i.e. within 36 hours). Jd. Third, cross-reports were actually made in both Jacqueline T. and Ortega, unlike this case. Fourth, Jacqueline T. was decided not on duty but on lack of proximate cause because the agencyreceiving the cross-report in that case concludedthe allegations were unsubstantiated and, therefore, it would presumably not haveintervened and protected the child from further abuse. Fifth, Jacqueline T. deals with an individual employee’s immunity pursuant to Cal. Govt. Code 820.2 and 821.6, which are individual immunity code sections. Those are not immunity sections which immunize a governmental 25 agency for its own acts or omissions under 11166(k). Sixth, Jacqueline T. expressly deals with 11166(a), and not the alleged agencyliability under 11166(k). The mandatory duty of an individual to report under 11166(a)is different than the mandatory duty of an agencyto cross-report under 11166(k). An appellate decision is not authority for everything said in the court’s opinion, but only for the points actually involved and decided. Santisas v. Goodin (1998) 17 Cal.4th 599, 620; see also People v. Knoller (2007) 41 Cal.4th 139, 154-155. Review is warranted by this Court not only on the important question of law concerning the proper construction of CANRA butalso to correct this flagrant misapplication of precedent construing CANRA. 2. Unlike the initial reporting standardsset forth in 11166(a) and 11166(g), there is no objective reasonableness standard for the cross-reporting requirement in 11166(k). The only triggeris the receipt of a report of suspected child abuse by the law enforcement agency. The language of 11166(k) requires that a law enforcement agency make a report to child protective services “immediately or as soon as practicably possible” by telephone, fax or electronic transmission of “every knownor suspected instance of child abuse or neglect reportedto it.” There is no language in the statute which permits investigation of the report 26 before “immediately” notifying child protective services, noris there language permitting somereports to not be cross-reported. Further, a law enforcement agencyitself would not know or suspect child abuse, because the agency as an inanimate object would not be capable of knowing or suspecting abuse. Also, the agency cannot havea report reportedto it by itself. These reports are comingfrom human beings (mandatedreporters and non-mandated reporters) fo the law enforcement agency. A mandatedreporter’s duty pursuant to 11166(a) is triggered by whether she entertains a “reasonable suspicion.” Quite differently, an agency’s duty pursuant to 11166(k)is triggered by time. First, the agency must phone, fax or electronically transmit child protective services immediately or as soon as practicably possible upon receipt of the report. A law enforcement agency cannot immediately cross-report a report to child protective servicesif it must first investigate the report. Second, the agency must send a follow-up written report within 36 hours of “receiving the information concerningthe incident,” and not within 36 hours of “investigating” the information it received. The Court of Appeal’s injection of an extra time period for the law enforcement agencyto first investigate the report before cross-reporting renders the express statutory time requirements meaningless. It is a well-settled maxim ofstatutory construction that a court must avoid a construction that renders any part meaningless or extraneous, Woosley v. State ofCalifornia (1992) 3 Cal.4th 758, 775-776, or which suggests that the legislature engagedin an idle act. Elsner v. Uveges (2004) 34 Cal.4th 27 915, 935. 11166.3 is further proofpositive that CANRA does not envision law enforcement waiting until completing an investigation before informing child protective services becausethe trigger is the “start” versus “completion”of an investigation: “11166.3. (a) The Legislature intends that in each county the law enforcement agencies and the county welfare or probation department shall develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse or neglect cases. The local law enforcementagency having jurisdiction over a case reported under Section 11166 shall report to the county welfare or probation departmentthat it is investigating the case within 36 hoursafter starting its investigation.” In this case, the Kinney report was dispatched for investigation by the law enforcement agency at 23:13:31 and the deputy wasonthe sceneat 23:32:05 on 9/22/2008. At the latest, by 11:32:05 on 9/24/2008, which was 36 hours from the time the deputy was on the scene, the agency should have at least informed child protective services that it had startedits investigation. Further, contrary to the Court of Appeal’s opinion at page 13, plaintiff never alleged or arguedthat the individual dispatcher, Nicole Kindle breached a duty pursuant to 11166(k); plaintiff has always alleged that the agency did. (AOB 34-38, ARB 27-31.) In short, there is no language in CANRA which permits a law enforcement agency to withholdtelling a child protective services agency that it has received and/oris investigating a report of suspected child abuse. 28 Such an interpretation is a complete bastardization of CANRA,yet that is exactly what the Court of Appeal’s opinion held. 3. The opinion confuses and conflates the distinct, express cross-reporting duties of a “law enforcement agency” under 11166(k) with the individualinitial reporting duties of a mandated reporter under 11166(a). California Penal Code 11166(k) is limited to the obligations of a “law enforcement agency” and does not impose any duty on a “mandated reporter.” A “law enforcement agency”is not a mandated reporter. The exclusive list of mandatedreporters is set forth at Cal. Penal Code 11165.7. A “mandated reporter” is a human being performing one of forty-four (44) jobs involving interaction with children. The express inanimate language of 11166(k) further clarifies that the simple cross-reporting duties imposed by that code section apply to the law enforcement agency instead of an individual deputy sheriff or law enforcementofficer: “reported to if’ and “to which it makesa report.” This obligation runs to an agency versus an individual because reports of suspected child abuse can only be received by a “child protection agency.” (Cal. Penal Code 11165.09.) Further, this makes sense from a practical perspective because most persons (mandated or non-mandated reporters) will be communicating his/her report of suspected child abuse either to a law enforcement agencybycalling 9-1-1 or to child protective services reporting hotline, instead of a random police 29 officer or child protective service worker walkingthe street. The term “law enforcement agency” should be interpreted as being different from the term “mandated reporter” wheninterpreting the duties of CANRA. The wordsof a statute must be given a plain and commonsense meaning unlessthe statute defines the words to give them a special meaning. People v. Nelson (2011) 200 Cal.App.4th 1083. 4. The opinion applies a “subjective” standard as opposed to the “objective” standard when determining whether a duty was owed by a mandated reporter of child abuse pursuant to Penal Code 11166(a) and Alejo v. City of Alhambra (1999) 75 Cal.App 4th 1180, and improperly applies discretionary immunity to a mandatory duty. The Court of Appeal’s opinion uses an inappropriate “subjective” analysis (i.e. meaning whatever Deputy Swanson subjectively wanted to do or not do was appropriate) versus the “objective” analysis required by Penal Code 11166(a) and Alejo v. City ofAlhambra (1999) 75 Cal.App 4th 1180. Asset forth in Alejo, supra, “Officer Doe had a mandatory duty to investigate and then reportifit was objectively reasonablefor him to suspect child abuse.” Id. at 75 Cal.App.4th 1193-1194. (Emphasis added.) Deputy Swansonis in the exact same position in this case as Officer Doe wasin the Alejo case. Further, the 2000 legislation amending various sections of the Child Abuse and Neglect Reporting Act, including Penal 30 Code section 11166, confirmed the continued validity of Alejo becauseit expressly states that “[t]his act is not intended to abrogate the case of Alejo v. City ofAlhambra (1999) 75 Cal. App. 4th 1180, (Stats. 2000, ch. 916, § 34). Penal Code 11166(a), states “For purposesofthis article, “reasonable suspicion” meansthatit is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable personin like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect....” Case law is settled that CANRA imposes two independent mandatory duties on such individual reporters: (1) “a duty to investigate”; and (2) “a duty to take further action whenan objectively reasonable person in the same situation would suspect child abuse. Further action would entail reporting the ‘known or suspected instance of child abuseto a child protective agency immediately or as soon as practically possible by telephone’ and preparing and sending‘a written report thereof within 36 hours of receiving the information concerning the incident.’” Alejo v. City ofAlhambra, supra, 75 Cal.App.4th at p. 1186. As the Alejo Court held, whether a reasonably prudent person in Deputy Swanson’s position, receiving Ms. Kinney’s information and observing the condition of the child, would have suspected child abuse and submitted a report is a question of fact to be determinedat trial. See Alejo v. City of Alhambra, supra, 75 Cal.App.4th at page 1189. Appellant presented ample evidence that an objectively reasonable law enforcement officer would have entertained the suspicion that Brayden 31 had been abused if he looked like he appears in the photographsatthe time Deputy Swanson saw him. Further, Kinney testified that Swanson agreed with her that the injuries looked severe andthat she took pictures, too. (AA 483.) The Court of Appeal’s opinion, however,turns this objective standard onits head andinstead relies solely on subjective impressions of Deputy Swansonto rule as a matter of law that she acted in an objectively reasonable manner: “Having investigated the incident, it was objectively reasonable for Deputy Swanson to concludethe situation did not involve child abuse, even if that conclusion, in the exercise of Deputy Swanson’s judgment, wasin error.” (Jacqueline T. v. Alameda County Child Protective Services, supra., 155 Cal.App.4th at pp. 476-477.) There are clear legal problems with that statementin the opinion. First, 11166(a) does not require that Swanson “conclude”the situation involved child abuse before she was required to report; rather, all that a reporter has to do is “entertain a suspicion.” Swanson did not lose her mandated reporter designation simply because she also wasthe law enforcementofficer assigned to investigate the report of child abuse made by Christy Kinney, any more than Officer Doe in Alejo lost his designation as a mandated reporter when he wasassigned by the Alhambrapolice departmentto investigate the report of child abuse made by the grandparent in that case. As a mandatedreporter, it is immaterial whether Swanson ultimately “concluded”that the report was “unfounded” per 11169 and 11165.12, and Appellant does not seek to invade the discretion of her 32 ultimate conclusions after she finished investigating the report of suspected abuse by Kinney. The operative test is whether there was evidencefor her to “entertain a suspicion” and be required to report as a mandated reporter under 11166(a). Second, an “objectively reasonable” analysis is not based simply on eeaccepting the defendant’s “‘subjective” belief as true as a matter of law. This is a question of fact to be determinedat trial. Romo v. Southern Pacific Transportation Co. (1977) 71 Cal.App.3d 909, 915. In this case, there are facts in doubt; namely, the appearance of Brayden when Deputy Swanson saw him, along with whether Swanson acknowledged to Kinney that Brayden’s injuries were too severe for the history provided and whether Swanson herself took and destroyed photographs. — Third, the opinion incorrectly equates the defendant’s subjective state of mind with objective reasonableness as a matter of law. Why would the fact that Swanson performed an investigation ipso facto have made her failure to report objectively reasonable? It would not under 11166(a), and there is no logic, reason or authority for that deduction. CANRA wasenactedto rectify the subjective/personal observation problem that was made evident by Landeros v. Flood (1976) 17 Cal.3d 413, 415. The Legislature revised the reporting standard to require reporting by designated professions wheneverthere exists a “reasonable suspicion” of child abuse. (§ 11166, subd. (a).) The purpose of this change was to remove impediments to reporting engendered by the “personal observation” requirement ofLanderos v. Flood, supra, 17 Cal.3d at page 415. (State Bar 33 of Cal., Rep. on Assem.Bill No. 2497, supra, pp. 1-2; Legis. Counsel’s Dig., Sen. Bill No. 718, 3 Stats. 1980 (Reg. Sess.) Summary Dig., p. 333.) Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1217. There has been no authority in California for the subjective standard applied in the Court of Appeal’s opinion since 1980. In fact, the opinion even acknowledges that Alejo and CANRA have an objective standard, but then illogically states that while there is an obligation to report where abuse is reasonably suspected, there is no duty to report when abuseis not suspected: “However, while the language of the statute does require a mandated reporter to send a follow-up report where the mandated reporter knowsor reasonably suspects a child has been the victim of abuse or neglect, it does not create a general mandatory duty “to take further action” where child abuseis not suspected.” (Opn., at p. 9.) The statute [11166(a)] cannot simultaneously apply and not apply, and the opinion reflects the Court’s confusion about the required ministerial, initial reporting requirement under 11166(a) versus the more complex, discretionary determination of the investigator’s ultimate conclusion that the initial report was “unfounded”per 11169 and 11165.12. Ultimately, the issue is not whether Deputy Swanson oweda duty to report. The appellate opinion states as much, and Swanson admitsthat she would have had to report if Brayden looked like he did in those photographs. So did her supervisor, and Plaintiff's law enforcement expert and the county’s child protective service worker. The operative question is a factual issue: namely, whether Brayden’s appearance in the photographs 34 taken four (4) hours before Deputy Swanson wasat Christy Kinney’s home accurately depicts his appearance at the time Deputy Swanson wasat Christy Kinney’s home. Deputy Swansontestified that those photographs do not accurately depict Brayden’s appearance, and Christy Kinneytestified that those photographsaccurately depict his actual condition. If the trier of fact finds they did accurately depict his condition, Deputy Swanson had an obligation to report pursuant to 11166(a) and Alejo, supra. If the trier of fact does not so find, then Deputy Swanson had noobligation to report pursuant to 11166(a). This cannot be determined as a matter of law. Deputy Swanson’s convenient denial at her deposition that Brayden did not look like he did in those photographsis not dispositive as a matter of law, especially when Plaintiff has photographic evidence and multiple eyewitnesses confirming his appearance — and even Swansonherself acknowledged multiple areas of bruising in her report. The duty to investigate and report child abuse is mandatory under section 11166(a) if a reasonable person in Deputy Swanson’s position would have suspected such abuse is a mandatory duty. Alejo at 1186. There is no discretion involvedin initiating the investigating and reporting processrelated to child abuse here as in Alejo, and does not involve a basic policy decision, and therefore the immunity of Government Code section 820.2 does not attach. Alejo at 1194. Such a mandatory duty cannot be discretionary becauseit “entails the fulfillment of enacted requirements.” See, e.g., Wheeler v. County ofSan Bernardino (1978) 76 Cal.App.3d 841, 849, Ramos v. County ofMadera (1971) 4 Cal.3d 685. 35 CONCLUSION For the foregoing reasons, Plaintiff-Appellant respectfully urges this Court to grant review. Dated: August 29, 2013 Respectfully submitted, ESNER, CHANG & BOYER oa By: fur _/ Andi N. Chang Attorneys fr Plaintiff-Appellant 36 CERTIFICATE OF WORD COUNT This Petition for Review contains approximately 8,352 words per a computer generated word count. i “Stuart BJEsner 37 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinionsnot certified forpublication or ordered published, except as specified by rule 8.1115(b). This opinion has not beencertified for publicationor ordered published for purposes ofrule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT DIVISION TWO B.H., a minor,etc., Plaintiff and Appellant, E0545 16 V. . (Super.Ct.No. CIVDS913403) | COUNTY OF SAN BERNARDINOetal., OPINION Defendants and Respondents. APPEALfrom the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed. The Keane Law Firm, Christopher J. Keane; Esner, Chang & Boyer, Stuart B. Esner and Andrew N.Changfor Plaintiff and Appellant. Lynberg & Watkins, Norman J. Watkins, Shannon L. Gustafson and Pancy Lin Misa for Defendants and Respondents. In September 2008, when B.H. was two years old, his mother, L.H., noticed bruises on B.H.’s face and body whenhe returned from visitation with L.S. (father). 1 L.H.’s former foster mother! reported the injuries to the San Bernardino County Sheriffs Department. A sheriff's deputy examined the child, determined there was an ongoing custody dispute, and concluded there was no needfor further investigation. A month later, B.H. received a devastating head injury while in the care of his father which will permanently disable him. L.H., as guardian adlitem,filed a lawsuit against the County of San Bernardino, the City of Yucaipa, Deputy Sheriff Kimberly Swanson, and her supervisor, Sergeant Jeff Bohner,? for violation of the Child Abuse and Neglect Reporting Act (CANRA),for not cross-reporting his injuries tothe Department of Children and Family Services (DCFS). Thetrial court granted summary judgmentin favor of the public entities and employees (the County defendants); plaintiff appealed. Onappeal,plaintiff claims (1) there were triable issues of material fact as to whetherthe sheriff’s deputy had a mandatory duty to cross-report suspected child abuse to DCFS,and (2) the court erred in ruling that the county and the sheriff's deputy were immune from liability for their discretionary functions. 1 Mother had no formalfoster parent-child relationship with C.K., but referred to her as her mother, or adoptive mother. C.K. was a friend of mother’s father who “wrote over custody [of mother] to her,” when mother was 13. For convenience andlack ofa better term, we will refer to C.K. as mother’s former foster mother. 2 Father was also namedin the suit for battery and child abuse, but he was not involved in the summary judgment motionorthis appeal. BACKGROUND Plaintiff's complaint asserts two causes ofaction against the County defendants, and two causes ofaction against father, whose actionsdirectly causedplaintiff's injuries. Ourreviewis limited to those causesof action involvingtheliability of the County defendants, which were the subject of the summary judgment motion. Plaintiff, B.H., was born in August 2006,andlived with his mother, L.H., in the home of L.H.’s former foster mother. In 2008, by an informal agreement, father had custody ofplaintiff every weekend. On July 2, 2008,father reported to the County of San Bernardino Sheriff's Departmentthat plaintiff arrived for a visit with unexplained bruises on his neck. A sheriff's deputy investigated the incident and determined the allegations were inconclusive. When the mother learnedofthis report the next morning, July 3, 2008, she contacted DCFSand informedthe intake operator that her son had been abused by an unknown person. Mother also informed DCFSthat father refused to return custody ofplaintiff to her and that she was pursuing an exparte orderto regain custody. On July 9, 2008, a DCFSsocial worker responded to mother’s July 3d report, interviewing motherat her residence, and visiting father at his. The social worker facilitated a meeting between mother, father, and B.H. on July 22, 2008. At that meeting, the parents agreed that father would relinquish B.H. to mother that day, and then resume his regular weekendvisits until a further court hearing, which was scheduled for August 6, 2008. The social worker concluded that the. situation was a custody battle and the allegations ofphysical abuse were unfounded. 3 On September 17, 2008, a formal court order was made,providing that father would have custody every weekend, plus one two-hourvisit midweek. On September 22, 2008, mother picked up plaintiff from a visit with his father and noticed bruises on his face. When mother got home,she talked to her former foster mother and they took pictures of the bruises on B.H. Then motherleft to go to an eveningclass, and after class, she went to a party until 2:30 or 3:00 a.m. Mother suspected child abuse, but wanted to speak with father before making any report. While mother wasout, the former foster mother contacted the sheriff's department and reported thatplaintiff had come home froma visit with his father with bruises on his forehead. The dispatcher askedif the child required medical attention, but the former foster mother declined becausethe child had adoctor’s appointmentthe next day. The former foster mother informed the dispatcher that she was making the report because she wasinstructed to do so. Sheriff's Deputy Kimberly Swanson respondedto the residence while mother was gone and plaintiff was in the care of mother’s former foster mother. When Deputy Swansonarrived, plaintiff was asleep, so the former foster mother woke him and brought him to the deputy to observe. Deputy Swanson examinedplaintiffs head, face, upper body, and arms. Deputy Swanson observedthat plaintiff had a scratch and bruising near his right eye and temple, and a small older bruise on his right arm, which possibly occurred during a fall. Deputy Swanson did notsee any bruises on the child’s forehead or torso when she examined him. Deputy Swanson wentout to her patrol vehicle and ran a computerrecord check on the parents. In the meantime, the former foster mother had put plaintiff back to bed. When Deputy Swansonreturned to the house, sheleft her card with mother’s former foster motherand requested that plaintiff's mother call her when she returned home. Deputy Swansonfilled out a report in which she recountedthat father had informed the former foster motherthat plaintiff had fallen and bumped his head while at Wienerschnitzel. The report concludedthat there was an ongoing custody dispute between the parents, that the former foster mother requested documentation ofthe incident and that the case was “for information only at this time and forward to station files.” Deputy Swanson left a card for motherto contact her when she returned home,but mother never did. The deputy cleared the case, and her report was reviewed and approved by her supervisor, Sergeant Jeff Bohner. After September 22, 2008, mother did not allow plaintiff to visit with his father. However, on October 11, 2008, mother allowed a visit. On October 18, 2008, father called his live-in girlfriend at work to report that plaintiff had fallen, hit his head, and would not wake up. Father’s girlfriend rushed home. When she got home,the girlfriend noticed plaintiff was stiff and asked the father whether he hadcalled the mother or 911 yet. Father then called 911, and subsequently the girlfriend called mother to report the injury. Emergencypersonnel respondedto father’s residence and transported plaintiff to Loma Linda University Hospital where plaintiff was treated for severe head trauma. 5 Plaintiff suffered seizures and wasstill unconscious uponarrival at the hospital, where a craniectomy was performed, removing portion of the child’s skull to relieve pressure in the brain from swelling. Plaintiff suffered subdural hematoma, cerebral edema, and subfalcine herniation? caused by intracranial pressure. A consultingforensic pediatrician determined that the injuries wereinflicted, the result of child abuse. The pediatrician concludedthat father’s explanation that the child was knocked backwards from a standing position onto a carpeted floor by a 16-month old half-sibling was not credible. On September 11, 2009, plaintiff, through mother, as his guardian ad litem, filed a complaint against the County of San Bernardino, the City of Yucaipa, Deputy Swanson, Sergeant Bohner, and father. The causes of action against the county, city, and sheriff's department personnel alleged breach of mandatory duty to report child abuse, pursuantto Government Code section 815.6 (first cause of action), and negligence, under theories of res ipsa loquitur and negligence per se, pursuant to Government Codesection 815.2 (second cause ofaction). Defendant made a general appearance by way of answer and general denial on November20, 2009, asserting several affirmative defenses, including governmental immunities. On November 10, 2010, defendantfiled a motion for summary judgment. 3 Subfalcine herniation is the most common cerebral herniation pattern, characterized by displacementofthe brain beneath the free edge ofthe falx cerebri due to raised intracranial pressure. (http://radiopaedia.org/articles/subfalcine_ herniation [as of 5/1/2013]; Laine, Shedden, Dunn, Ghatak, Acquired Intracranial Herniations: MR Imaging Findings, 165 Amer. Journal of Roentgenology 967 (1995).) The motion was heard on May 12, 2011, and the court orally ruled in favor of granting the motion. A formalorder granting the motion wasfiled on July 14, 2011 On August 11, 2011, judgment was entered in favor of defendants County of San Bernardino, City of Yucaipa, Sergeant Jeff Bohner, and Deputy Kimberly Swanson. On September8, 2011, plaintiff timely appealed. DISCUSSION Plaintiff argues on appealthat there weretriable issues of fact as to whether defendants’ failure to cross-report the child abuse report of September 22, 2008, violated their mandatory reporting duties under CANRA, precluding entry of summary judgment. Assuch,plaintiff asserts the trial court erroneously concluded defendants were immune fromliability. We disagree. a. Standard ofReview Summary judgmentis properly granted when thereare notriable issues of material fact and the movingparty is entitled to judgmentas a matter of law. (Conroy v. Regents _ of University ofCalifornia (2009) 45 Cal.4th 1244, 1250; Code Civ. Proc., § 437c, subds. (b), (0).) A defendant meets his burden of showingthat a cause of action lacks merit if he showsthat one or more elements of the cause of action cannot be established, or that there is a complete defenseto that cause ofaction. (Code Civ. Proc., § 437c, subd. (p)(2); Ortega v. Sacramento County Dept. ofHealth & HumanServices (2008) 161 Cal.App.4th 713, 716.) The purposeofa motion for summary judgment is to discover whetherthe parties possess evidence which requires the fact-weighing procedures of a 7 trial. (Soto v. County ofRiverside (2008) 162 Cal-App.4th 492, 496, quoting City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.) Wereview the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonablysupports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476,citing Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) Because we review independently, or de novo, thetrial court’s stated reasons for granting summary judgmentare not binding on us; we review theruling, not the rationale. (Soto v. County ofRiverside, supra, 162 Cal.App.4th at p. 496; Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) b. Whether Defendants Breached the Mandatory Reporting Duty by Failing to Cross-Report. Penal Codesection 11166, subdivision (a), requires a mandated reporter to make a report to a police departmentor sheriff's department, among other agencies, “whenever the mandated reporter, in his or her professional capacity or within the scope ofhis or her employment, has knowledge ofor observes a child whom the mandatedreporter knows or reasonably suspects has been the victim of child abuse or neglect.” A mandated reporter has “reasonable suspicion” within the meaningoftheact, whenit is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonablepersonin a like position, drawing, when appropriate,onhis or her training and experience, to suspect child abuse or neglect. (Pen. Code, § 11166, 8 subd. (a)(1).) Penal Codesection 11165.9 providesthat reports of suspected child abuse or neglect shall be made by mandated reporters to any police departmentor sheriff's department. Peace officers and social workers are mandated reporters. (Pen. Code, § 11165.7, subds. (a)(15), (19).) Plaintiff asserts that Penal Codesection 11 166, subdivision (a), imposes two mandatory duties on a police officer who receives an account of child abuse: (a) the duty to investigate, and (b) the duty to take further action when an objectively reasonable person in the same situation would suspect child abuse. (Alejo v. City ofAlhambra (1999) 75 Cal.App.4th 1180, 1186.) However, while the languageofthestatute does . require a mandatedreporterto send a followup report where the mandated reporter knows or reasonably suspects a child has been the victim ofchild abuse or neglect, it does not create a general mandatory duty “to take further action” where child abuse is not suspected. The statement from Alejo, upon whichplaintiff bases his argument, is at odds with the accepted notion that wherea statute calls for the exercise ofjudgment, expertise, and discretion, it does not create a mandatory duty within the meaning of Government Code section 815.6. (Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 477.) Here, it is undisputed that Deputy Swanson investigated the report of suspected abuse. The decision to not cross-report was tantamountto a decision to not prosecute, whereit was the productof an investigation. .The decision was grounded on the 9 judgment, expertise and discretion of the investigating sheriff's deputy. Penal Code section 11166, subdivision (a), limits the mandatory duty to take further action to situations in which “an objectively reasonable person in the samesituation would suspect child abuse.” (See Alejo v. City ofAlhambra, supra, 75 Cal.App.4th at p. 1186.) Having investigated the incident, it was objectively reasonable for Deputy Swanson to conclude the situation did not involve child abuse, even if that conclusion, in the exercise of Deputy Swanson’s judgment, was in error. (Jacqueline T. v. Alameda County Child Protective Services, supra, 155 Cal.App.4th at pp. 476-477.) Plaintiff's extensive reliance on the holding of Alejo v. City ofAlhambra, supra, 75 Cal.App.4th 1180, in arguing that Deputy Swanson’s failure to cross-report constituted a violation of the mandatory duty to cross-report to CFS,is misplaced. That case did not involvea failure to follow up,so it is inapposite. An appellate decisionis not authority for everything said in the court’s opinion, but only for the points actually involved and actually decided. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620; see also People v. Knoller (2007) 41 Cal.4th 139, 154-155.) In Alejo, the father of a child became concerned whenhe observed severe facial bruising to and surrounding the child’s eye. The child’s mother’s explanations did not dispel his concern. (Alejo v. City ofAlhambra, supra, 75 Cal.App.4th at p. 1183.) Three days later, a neighbor informed the father that mother and her boyfriend were using drugs and abusing the child, prompting father to call the police. (bid.) Despite the report, the police did not conduct any investigation into whether the child was being abused. Six 10 weckslater, the child was severely beaten, resulting in permanent disability. (/d. at p. 1184.) The Alejo case involved a total failure-to investigate, in violation of Penal Code section 11166, subdivision (a). It did not involve a situation in which a deputy conducted an investigation but concluded there was no child abuse. The present case is more on point with Ortega v. Sacramento County Dept. of Health & Human Services, supra, 161 Cal.App.4th 713. In Ortega, a child sued the social services agency for returning her to the custody of her father following an incident in whichthe father had abused phencyclidine (PCP) and had been arrested following a disturbance. (/d. at p. 717.) Thefather had a history of domestic violence and drug use, and he had previously lost custodyofthe child a few years earlier when he was arrested on outstanding warrants in the child’s presence. (/bid.) After investigating the incident, and learning that the father had taken the PCP in the child’s presence, as well as learning of his violent and unstable history, the social services agencyreturned the child to the father’s custody. A few dayslater, the father savagely attacked the child, stabbing her in the heart and lung, causing enormous physical and emotionalinjuries. (Ortega v. Sacramento County Dept. ofHealth & FHluman Services, supra, 161 Cal.App.4th at p. 718.) The child sued the county social services agencyfor breach ofthe mandatory duty to fully and adequately investigate, but the court granted summary judgmentin favorof the defendant. On appeal, the Third District Court of Appeal concluded the defendants complied with the mandatory duties by conducting an investigation, although it was characterized 1] as “lousy,” and by making a determination aboutpotential risk to the child, although it wasthe wrong one. (Ortega v. Sacramento County Dept. ofHealth & Human Services, supra, 161 Cal.App.4th at p. 728.) Similarly, in the present case,it is undisputed that Deputy Swanson investigated the report, concluding that there was no child abuseafter learning the report was being made for informational purposes in an ongoing child custody battle. There are strong policy reasons to follow Ortega andto disregard the dicta of Alejo. If no discretion is to be involved in the decision to prefer charges or cross-report to CFS, any report of child abuse would inevitably result in someone’s arrest and prosecution, with possible loss of child custody,as the exercise of a ministerial duty. This would have far-reaching implications for.an already overburdened child welfare system and an equally overburdenedjudicial system. The decision to cross-report, like the decision to arrest, is an inherently discretionary decision by an officer exercising judgmentand expertise. Penal Codesection 11166, subdivision (a), does not create an express duty to cross-report so the County defendants did not violate a mandatory duty. At oral argument, plaintiff argued that a separate and independent duty to cross- report is imposed by Penal Codesection 11166, subdivision (k), an argument not presentedin the trial court and notraised in the opening or reply briefs. Ordinarily, a new theory may not be presented for the first time at oral argument. (AmeriGas Propane, L.P. v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001 [Fourth Dist., Div. 12 Two].) Nevertheless, we have consideredthe issue and find it does not affect our analysis. Penal Codesection 11166, subdivision (k), provides that “[a] law enforcement agency shall immediately, or as soon as practicably possible, report by telephone,fax, or electronic transmission to the agency given responsibility for investigation of cases under Section 300 of the Welfare and Institutions Code andto the district attorney’s office every known or suspected instance ofchild abuse or neglect reportedtoit, except acts or omissions coming within subdivision (b) of Section 11165 .2, which shall be reported only to the county welfare or probation department.” [Italics added.] The subsection goes on to require law enforcementagenciesto “report to the county welfare or probation department every knownor suspected instance ofchild abuse or neglect reportedto it which is alleged to haveoccurred as a result of the action of a person responsible for the child’s welfare, or as the result of the failure of a person responsible for the child’s welfare to adequately protect the minor from abuse when the person responsible for the child’s welfare knew or reasonably should have knownthat the minor wasin danger of abuse.” Plaintiff argues that this subdivision imposed onthe sheriff's department dispatcher the mandatory duty to cross-report the allegation of abuse to DCFS,even before the dispatcher sent Deputy Swansonto investigate the allegations. Wedisagree. In Jacqueline T. v. Alameda County Child Protective Services, supra, 155 Cal.App.4th 456, the court rejected the notionthat the decision to cross-report was a ministerial, 13 mandatory duty. (/d. at p. 466.) That court concludedthatthe failure to conduct a reasonable and diligent investigation and to timely cross-report to other agencies were incidental to the agency’s investigations, within the scope of their employment, and thus covered by immunity. (/d. at p. 468.) The court in Jacqueline T. also distinguished the child welfare agency and law enforcement agencies from mandatory reporters covered by Penal Code section 11166, subdivision(a), explaining that the former were the alleged receivers of reports from mandated reporters, and not reporters themselves. As such they could not have breached a mandatory duty to report (or cross-report). (Jacqueline T. v. Alameda County Child Protective Services, supra, 155 Cal.App.4th at p. 473.) Finally, that case held that becausetheplaintiff could not, as a matter of law, establish that the failure to cross-report was a proximate causeofthe plaintiffs injuries, as required by Government Code section 815.6, the agency employees were immune,as was the agency. (Jacqueline T., at pp. 469, 473.) Although the language of Penal Code section 11166, subdivision (k), uses the word “‘shall” in requiring a law enforcement agencyto cross-report, we do not interpret this to require mandatory agencyaction in the absenceofinvestigation. The statutory language providing that the law enforcement agency “shall” cross-report “every known or suspected instance of child abuse reportedto it,” implies that the duty to cross-report arises only after an investigation results in the determination that abuse is known orthat it is objectively reasonable for a person to entertain a suspicion, based on facts that could 14 Cause a reasonable person to suspectchild abuseor neglect. (Pen. Code, § 11166, subd. (a)(1).) Such a reasonable suspicion could only arise in the mind ofan employee of a law enforcement agencyafter an investigation of the reported abuse has been undertaken. We disagree with the notion,not raised in thetrial court or in the openingbrief, that Penal Code section 11166, subdivision (k), creates a separate, independent, and mandatory duty to cross-report, the violation of which creates a separate basis ofliability under Government Codesection 815.6. c. Whether Defendants’ Actions Are Entitled to Governmental Immunity. Government Codesection 815.6 provides that where a public entity is under a mandatory duty,it is liable for an injury caused by his failure to discharge the duty unless it establishes it exercised reasonable diligence to discharge the duty. Government Code section 815.6’s liability for breach of a mandatory duty applies to ministerial duties imposed by statutes and regulations. (Ortega v. Sacramento County Dept. ofHealth & HumanServices, supra, 161 Cal.App.4th at p. 728; see also Scott v. County ofLos Angeles (1994) 27 Cal.App.4th 125, 141.) To prove a violation under Government Code section 815.6, the plaintiff must plead the existence of a specific statutory duty. (Jacqueline T. v. Alameda County Child Protective Services, supra, 155 Cal.App.4th atp. 471.) However, Government Codesection 820.2 provides for immunity to a public employeefor an injury resulting from his act or omission wherethe act or omission was the result of the exercise of the discretion vested in him, whetheror not that discretion 15 was abused. Government Code section 821.6 expressly immunizes a public employeefor injury caused byinstituting or prosecuting anyjudicial or administrative proceeding with the scope of his employment, even if he acts maliciously and without probable cause. GovernmentCodesection 821.6 is not limited to the act offiling a complaint;it also extendsto actions taken in preparation for formal proceedings, including investigation. (County ofLos Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 229; Amylou R. v. County ofRiverside (1994) 28 Cal.App.4th 1205, 1209-1210.) Investigation is an essential step toward the institution of formal proceedings, so it is cloaked with immunity. (Amylou R., at p. 1210.) Investigations are thus considered to be part ofjudicial and administrative proceedings for purposes of Government Code section 821.6 immunity. (Richardson- | Tunnell v. Schools Ins. Programfor Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062, citing Kemmerer v. County ofFresno (1988) 200 Cal.App.3d 1426, 1436-1437.) The immunity extends to investigations even if there is a later decision notto initiate a prosecution. (Richardson-Tunnell, at p. 1062, citing Ingramv. Flippo (1999) 74 Cal.App.4th 1280, 1293; see also Gillan v. City ofSan Marino (2007) 147 Cal.App.4th 1033, 1048.) Asdiscussed in the previous section, defendants complied with the mandatory reporting duty of investigating the child abuse report. The gravamenofplaintiffs claim is that the County defendants failed to follow up with a cross-report to CFS. However, as 16 we have shown,thereis no specific statutory duty to cross-report wherethe investigation concludes there was no child abuse. The presentcase is quite similar to Ortega v. Sacramento County Dept. ofHealth & Human Services, supra, 161 Cal.App.4th 713, where the court concludedthat a claim of inadequate investigation was precluded by the statutory immunity. The court observed that claims of improper evaluation cannot divesta discretionary policy decisionofits immunity. (/d. at p. 733, citing Caldwellv. Montoya (1995) 10 Cal.4th 972, 983-984.) “[T]he collection and evaluation of information is an integral part of‘the exercise ofthe discretion’ immunizedbysection 820.2.” (Ortega, at p. 733.) Here, Deputy Swanson respondedto the dispatch, examinedthe child, and determined there wasno child abuse. Whetherthe investigation was adequate or not, and whether the deputy’s conclusion wasincorrect, Deputy Swanson’s failure to cross-report is covered by the immunity provided by Government Codesection 821.6. If the employee is immune,so, too,is the county. (Jacqueline T. v. Alameda County Child Protective Services, supra, 155 Cal.App.4th at pp. 468-469.) Summary judgment wasproperly granted. 17 DISPOSITION The judgmentis affirmed. Respondentsare entitled to costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P.J. Weconcur: RICHLI MILLER 18 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California and over the age of eighteen years. I am not a party to the within action. My business address is 234 East Colorado Boulevard, Suite 750, Pasadena, California 91101. I am readily familiar with the practice of Esner, Chang & Boyerfor collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, such correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid, the same day I submitit for collection and processing for mailing. I served the document(s) listed below by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid, addressed as follows: Date Served: August 29, 2013 Document Served: Petition for Review Parties Served: Norman J. Watkins, Esq. Hon. Donald R. Alvarez ShannonL. Gustafson, Esq. San Bernardino County Superior Lynberg & Watkins Court 1100 Town & Country Road, Suite 1450 303 West Third Street, Dept $32 Orange, CA 92868 San Bernardino, CA 92415 (Attorneys for Defendants County of (Trial Judge) San Bernardino; Sergeant Jeffrey Bohner, Deputy Kimberly Swanson, and City of Yucaipa) Clerk’s Office Court of Appeal Fourth Appellate District, Division Two 3389 Twelfth Street Riverside CA 92501 (BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Pasadena, California. Executed on August 29, 2013, at Pasadena, California. (State) I declare under penalty of perjury underthe lawsofthe State of California that the aboveis true and correct. Corluel Carol Miyake (//
