(H.) B. v. COUNTY OF SAN BERNARDINO

Respondents, County of San Bernardino, City of Yucaipa, K. Swanson, and Jeff Bohner, Answer Brief on the Merits

Cal.February 14, 2014

SUPREMECOURT 5213066 Pil eD 4" Dist. No. E054516 FEB 14 2014 IN THE SUPREME COURT OF THE STATE OF CALIFORNIAFrank A. McGuire Clerk Deputy B. H. A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, LAURI HANSON, Plaintiff, Petitioner, vs, COUNTY OF SAN BERNARDINO,CITY OF YUCAIPA,K. SWANSON, JEFF BOHNER, LOUIS KELLY SHARPLESI, Defendants, Respondents. . Appeal from the Superior Court For the County of San Bernardino Case No.: CIVDS 913403 Hon. Donald R. Alvarez, Judge ANSWERBRIEF ON THE MERITS LYNBERG & WATKINS, APC NORMAN J. WATKINS(State Bar No. 87327) S. FRANK HARRELL(State Bar No. 133437) SHANNONL. GUSTAFSON(State Bar No. 228856) PANCYLIN MISA(State Bar No. 239684) 1100 Town & Country Road, Suite 1450 Orange, California 92868 (714) 937-1010 * FAX: (714) 937-1003 Attorneys for Defendants, Respondents, COUNTY OF SAN BERNARDINO; SERGEANT JEFFREY BOHNER, DEPUTY KIMBERLY SWANSON,and CITY OF YUCAIPA S213066 4" Dist. No. £054516 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA B. H. A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, LAURI HANSON, Plaintiff, Petitioner, VS. COUNTY OF SAN BERNARDINO, CITY OF YUCAIPA,K. SWANSON, JEFF BOHNER, LOUIS KELLY SHARPLESI, Defendants, Respondents. Appeal from the Superior Court For the County of San Bernardino Case No.: CIVDS 913403 Hon. Donald R. Alvarez, Judge ANSWERBRIEF ON THE MERITS LYNBERG & WATKINS, APC NORMAN J. WATKINS(State Bar No. 87327) S. FRANK HARRELL(State Bar No. 133437) SHANNONL. GUSTAFSON(State Bar No. 228856) PANCYLIN MISA(State Bar No. 239684) 1100 Town & Country Road, Suite 1450 Orange, California 92868 (714) 937-1010 * FAX: (714) 937-1003 Attorneys for Defendants, Respondents, COUNTY OF SAN BERNARDINO; SERGEANT JEFFREY BOHNER, DEPUTY KIMBERLY SWANSON,and CITY OF YUCAIPA CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (CAL. RULES OF COURT, RULE8.208) There are no interested entities or personsto list in this certificate (Cal. Rules of Court, rule 8.208(e)(3)). DATED: February 13, 2014 Respectfully submitted, LYNBERG & WATKINS A Professional Corporation NORMANJ. WATKINS S. FRANK HARRELL SHANNON L. GUSTAFSON PANCY LIN MISA Attorneys for Defendants/Respondents COUNTY OF SAN BERNARDINO; SERGEANT JEFFREY BOHNER, DEPUTY KIMBERLY SWANSON, and CITY OF YUCAIPA TABLE OF CONTENTS I. STATEMENTOF FACTS2.1...sccsssscssccscsscsessscssesseaseeeeens 1 TI. OVERVIEW OF THE ACTiu...scssccensccessccsensesescnssees 7 A. Deputy Swanson’s Duty to Report..............cccrrrerceees 10 B. Deputy Swanson’s “Duty” To Suspect Abuse............ 16 HI. THE SHERIFF’S DEPARTMENT’S DUTY TO REPORT UNDER CANRA2...ccccctectcrscccensscrcecesccsscreesesscsessssscosenes25 A. The Claim Against the Sheriff's Department Predicated Upon A Violation of Section 11166(k) Was Not Properly Raised...................ccsssssssssccssssscssersscssenees26 1. The Government Tort Claim ..............ccssseseees27 2. The Complaint.........ccccecsessccecccscsscsssssscsssssessees31 3. The Trial Court............ccsccsssssssessscrresssessssvenenes33 B. Section 11166(k) Does Not Require Immediate Reporting by a County Sheriff's Department...........36 1. Whois mandated to report: ..........cccccsseseeeseese44 2. What must be reported: ...........ccesssscsccrroecceoes46 3. Whenreporting is Mandatory............ccccccecscsceee46 4. Wherereports must be Made:...........cccsssssseees48 TV. CONCLUSION...........cccccescecccreccnsceseccessscnesesessesesssseeaseese56 CERTIFICATE OF WORD COUNT............ccccccsccssscecscsrsessecessses 1 ii TABLE OF AUTHORITIES Cases Alejo v. City ofAlhambra (1999) 25 Cal.App.4th 1180 0...cece ceeeesneeeeseeseeseseteseeseeesnenseee9,11 Alicia T. v. County ofLos Angeles (1990) 222 Cal.App.3d 869 .......cccceccesscsceseeceseeeceeeeseeeeessesesessaseeeeesnees 19 Apple Computer, Inc. v. County ofSanta Clara Assessment Appeals Bd. (2003) 105 Cal. App. 4th 1355 vceceeseeceseeseessseeeerssseseseeeesseneesesees 13 Barner v. Leeds (2000) 24 Cal.4th 676 weeeeeeceeeeseseeeeeeeeneeeeeeee 19 Black v. Bank ofAmerica (1994) 30 Cal.App.4th 1a...eeecescesscecessesceeeceessenssesseeeseessueeeeeses38 Brown v. Poway Unified School Dist. (1993) A Cal.4th 820 ooo... .eeccccseceesecceeeenesesneeeeesendeeceseeeessessseeesseeeseeenenes 38 Bruce v. Gregory (1967) 65 Cal. 2d 666.........cccececescceseeteeceneeteeeeeeteeeeeseeseeeseeeseseseeeenaee44 C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 .....cccecececcessecseceseeseeesseesesseeessssesseeseeesseaeeeases38 Christina C. v. County ofOrange (2013) 220 Cal.App.4th 1371 oo... eee eessecessssesseeseeenseserseeees eceeeeee 23, 24 County ofLos Angeles v. Superior Court (2002) 102 Cal.App.4th 627 .....ccceeeseesseeesecesneeeceseeessetesssecseseeeensaes20 County ofSanta Barbara v. Connell (1999) 72 Cal. App. 4th 175 oe eeccccceeseeeseeseeeeenseseseeeeeseseeenenseenes44 DeYoung v. San Diego (1983) 147 CalApp.3d 11 ccceeeeeseeeseeeesseeecesessesssseerssssessesees 13 iil Doe 1 v. City ofMurrieta (2002) 102 Cal. App. 4th 899 ooo ecceccsecssceeeessnseeeeesssesteeesseeeesens28 Donahue v. State ofCalifornia (1986) 178 Cal. App. 3d 795 wc. eeceeccescecesseeressceeeeneessaeeseeeeesaesseeesaeees28 Drouet v. Superior Court (2003) 31 Cal. 4th 583... eeeccccsneeeeseneceeseeseeeessaneceesaeeeeeeasecsneeenenaes43 Elias v. San Bernardino County Flood Control District (1977) 68 Cal. App. 3d 70 .esssecccsseeese sesstusuusessesesessssneesseserssisenseesvece28 Estate ofTkachuk (1977) 73 Cal. App. 3d 14cece eeccceeeeeeeteeeeeeeeeeeeeseeeaeeeeeeaaeseaeensaees44 Fall River Joint Unified Sch. Dist. v. Superior Court (1988) 206 Cal. App. 3d 431 oo... eceeessreeseeeseeeeeeceeeseeneeeeseasensneeeneas28 Greenwich S.E., LLC v. Wong (2010) 190 Cal. App. 4th739 oo... eee eeeesccssecsseecesneceeesenseeeseneenseeenens34 Hernandez v. Garcetti (1998) 68 Cal App 4th 675 oo... .eeceeccceseccseenseeeneeeesneceeeesneeeeeseneneees 30, 35 In Re Governship (1979) 26 Cal. 3d L1Oeeeeeeecesneeeeeseeeeseeeeaeeeeeseeeeseseaeesesseesteaeeens27 Jacqueline T. vy. The Alameda County Child Protective Services (2007) 155 CalApp.4th 456.0... eecccccccccsescessereeecessseneneeesensaeeespassim Jenkins v. County ofOrange (1989) 212 Cal.App.3d 278 oo... .eecccceesecesseeeecesesaeeeceseeeesseaaesesesersneeees20 Karst v. Vickers, (N.D. 1989) 444 N.W.2d 698... cecceeesceeeeneeseneeeeseeeeetenes 38, 49 Lippman v. City ofMiami, (S.D. Fla. 2010) 724 F.Supp.2d 1240.0... eeeeeeeeeteees 38, 49 iv Mares v. Baughman(2001) 92 Cal. App. 4th 672 .0.....eccecseceessseeeeeceseeeeesseesesssesseeeneeaeaeees44 Newton v. County ofNapa (1990) 217 Cal.App.3d 155] oeeeeeseeeeeeeseetsseeeseeseressessaeeenees 20, 22 Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal. 3d 650.0... .cecececccceeeceeeeseeeeeeeeeseeseesensesesassesneeasesaeensaes 13 People v. Harper (2003) 109 Cal. App. 4th 520 0...eeeecesesceceeseeseseseeeeneeeraeeseseeeseaes44 People v. Starr (2003) 106 Cal. App. 4th 1202 oo... eeeeccccceseeeeeseeseesssesesessseseseneneeeaes 13 Pierce v. Pac. Gas & Elec. Co. (1985) 166 Cal. App. 3d 68 ........ceeeeeeessceccesreceeneeereeseasseeasnsnecsseasenneess 32 Planned Parenthood Affiliates ofCalifornia v. John K. Van De Kamp (1986) 181 Cal.App.3d DAD ciccccsstecesteneessneeeeeeeesneseeseesenesenens 7,9, 11, 16 Realmuto v. Gagnard (2003) 110 Cal. App. 4th 193 oo. eeeeeeeeesseecsseeseeeccsesenesneesneeesnees44 Ronald S. v. County ofSan Diego (1993) 16 Cal.App.4th 887 00... ceseecescecceceeesseesssesseusseseseeeeaseees 20, 22 Shoemaker v. Myers (1992) 2 Cal. App. 4th 1407 oooeeeeeeeeseseseseeeeereeeneeeseeeeeeeeeees28 Stockett v. Association ofCal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal. 4th 441 oo. eeccceceeeeseesecneeceseeeseseeessessensesseeseeeeees 27, 29 Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal. 4th 553.0... ccceccccceeeseeeeeeessseeeeseeeeseeeeeseseeeseseneeueengs 43, 44 Topa Ins. Co. v. Fireman's Fund Ins. Companies (1995) 39 Cal. App. 4th 133] oieeesccceseccesneeseeeeseeeeseeessaeeeseeeaeeaes44 Treppa v. Justice's Court ofNo. Three Tp., Lake County (1934) 1 Cal. App. 2d 374 oo. eceesscceeesssneeeeeeseeseeeeeeseeeevessnereseseeeeaees43 Younger v. Superior Court (1978) 21 Cal. 3d 102...eeeeeeceeeseeeeeesseeeeeeeneseaeeessneeesesaeeesneeenntens 26 Statutes Cal. Civ. Proc. Code § 1858 ..ecccccccccccccsssssssccceneceecssnsneceeeeeensenanees 15, 49 Cal. Gov. Code § 815.2....ccccecccccscccssneceseneeeesneeesneeeesaneseseaeesenees 36, 38 Cal. Gov. Code § 815.6 ...cccccccsssscccecccsesenssneceeeneceessnneneneseseeesessseeeeeaes 36 Cal. Gov. Code § 820....ccccccccccsssscccccesssssssssncceneccsesensneeeceseseesssaseetnes21 Cal. Gov. Code § 820.2 ....cccsscccesessseccesessnceeeeeeesseeeeeseneeeseeseeneeeesspassim Cal. Gov. Code § 821.6 ....cesccessccesseseeeseceeesneneeeeeneees 19, 20, 21, 24, 38 Cal. Gov. Code § 945.4 icccccctscccccesesssssscneeeeeeeceseesneeees 30, 31, 33, 35 Cal. Gov. Code § 945.6 ...cccccccccssscecesseecsescesessaneeesnsesesanesessaeeeeeeeseeeses 33 Cal. Penal Code § 11165(35)...ccccccccecsssseseeeceeeceeseesnaeeeeeeeeesseneseesees 56 Cal. Penal Code § 11165.7 wecccccccccccccecccecceeeeecceeeeeeeeeneseeees 7, 10, 43, 46 Cal. Penal Code § 11165.9 vo. eessccesessseeeeceesneeeeesseneeeeeeeeaneespassim Cal. Penal Code § 11166 ...cccccccccccccccccccceseeeenseecesseeseseseesenes 29, 56, 61 Cal. Penal Code § 11166(a)........cececcceeeessseeceeeeesceeeeesenneeeeeeeseneespassim Cal. Penal Code § 11 166(C).......ccccccccccccsssssssseenseceesesesseneeeneesessenneeees 57 Cal. Penal Code § 11 166().....ccccccccccccssssssnseeceeeeeceesseseneeeeceseeeneneeeaas 9 Cal. Penal Code § 11166(h).........cceeeeeesssneseneecceceeeeesnaseeeeeseeeneeens 56 Cal. Penal Code § 11 166(i) ......cccccccccccccessssnteeeeeecceeeesesenenaueeeesesstaeeees 56 Cal. Penal Code § 11166()) ........ccsssccccccsessseeeeees 48, 51, 52, 53, 54, 58 Cal. Penal Code § 11166(K)..... ce eccceesessceeeeeesneeeeessnneeereesereespassim vi Cal. Penal Code § 11166.5(a)(1) .....eeecscccecesssseseenterereresnanesteteeeeeeeeees 61 Cal. Penal Code § V1167 ...ccccccccccccceccscsecececeensnscnnneeeesscneeeentieeeeeneeees 7 Cal. Penal Code §11165(a)(34) ......ceeeesssccceeeesesesensansneecersseteeetsanenerers 15 Cal. Welf. & Inst. Code § 16501 (f) .....esccceessseeeeeeesenteceeaeeesneteaneeeeees62 Other Authorities California Statewide Child Welfare Services Manual, the Manual of Policies and Procedure, Chapter 31-105.116..00eee62 California Statewide Child Welfare Services Manual, the Manual of Policies and Procedure, Chapter 31-105.117........ cc eeeceeeeeeeeee63 Steven J. Singley, Failure to Report Suspected Child Abuse: Civil Liability ofMandated Reporters (1998) 19 J.JUV.L 236... cccccccccssssscccccceeeeeceecenseceaececeeceeeeesseeseeesseeseeeeess 9 Susan A. Collier, Comment, Reporting Child Abuse: When Moral Obligations Fail (1983) 15 Pacific L.J. 189, 214...ee 8 Thomas L. Hafemeister, Castles Made of Sand? Rediscovering Child Abuse and Society’s Response (2010) 36 Ohio N.U.L.Rev. 819 seeeaneeeessacecsscesececscaneeecssasaeeceesaceceaeeeneeeesseeaeecesaeesesecuaeeseeeeeaeeees45 vil I. STATEMENT OF FACTS B.H. was born on August 4, 2006. At all times his mother, Lauri Hanson and father, Louis Sharples, lived separately. B.H. and his motherlived in the home ofa friend, Christy Kinney, who has been described as a “former guardian.” (See, Appellant’s Appendix (“AA”) 9). Sharples lived with his girlfriend and their 18-month-old son. (AA 106, 961; 167). In 2008, Sharples and Hanson had an informal agreementthat Sharples would have custody of B.H. every other weekend. (AA 60, 88-90; 108-109). On September 17, 2008, the family law court entered a custody order which increased Sharples’ custody of B.H.to every weekend. (AA 61; 85-87; 108-109). Sharples and Hanson had a tumultuousrelationship with allegations of parental misconduct and child abuse going back and forth. In early July 2008, Sharples was scheduled to have custody of B.H.for five days starting July 1. (AA, 61; 93-95). On July 2, Sharples called the San Bernardino Sheriff's Department and reported that B.H. appeared to have been abused byhis mother. On this particular occasion, he described bruises on B.H.’s neck “as if he had been choked.” Healso reported that this was not the first time the child was brought to him with suspicious bruising. (AA 174). During the investigation, Sharples told the assigned deputy that he and B.H.’s mother had an ongoing custody battle and that he was going to court to get full custody ofB.H. (AA 191). The next day, after learning of Sharples’ allegations against her, Hansoncalled the San Bernardino welfare department and alleged that Sharples had filed a false report of child abuse against her with law enforcement. She then chargedthat,in fact, it was Sharples who abused B.H.and had done so on multiple occasions although she had not made previous reports. (AA 228). Hanson also complained that Sharples was breaching the custody order, and that she, too, was returning to court to seek ex parte relief. (/d.) The sheriff's deputy who responded to Sharples’ report interviewed him, and also observed B.H. He noted vertical marks on the boy’s neck but was unable to get any information directly from the child because of his age. Sharples told the deputy that he had not spoken to Hanson about the marks. Healso told the deputy that this had happened on prior occasions. Hesaid that, when confronted, Hanson simply responded B.H.“trips a lot.” (AA 201). The deputy later interviewed Hanson, and she denied that B.H. had any scratches on his neck whenshe dropped him off with Sharples. Based onthis conflicting information, as well as his personal observations, the deputy documented the allegations as “inconclusive,” ending law enforcement’s intervention at that time. Hanson’s counter-allegations of child abuse against Sharples were separately investigated by a social worker. (AA 64-65; 232). She interviewed both Sharples and Hanson and,like the deputy, she noted that the allegations of abuse came in the midst of a bitter custody dispute. Hansonalso told the social worker about Sharples’ abuse allegations, which Hanson said were false. Hanson did claim she was aware ofa scratch on B.H.’s shoulder when sheleft him with Sharples on July 1, but she denied there were scratches on his neck. Several dayslater, after the interview of Hanson,the social worker interviewed Sharples and visited with B.H. She noted that B.H. looked “healthy and adequately cared for,” and did not note any marks or bruising. (AA 232). She then discussed the custody issue raging between Hanson and Sharples, and urged Sharples to allow Hansonto have custody of B.H.as before. She reported that Sharples “ ..did not appear malicious, but rather young and inexperienced.” (Id.) Sharples ultimately agreed to resume shared custody pending further court action. The social worker documentedin herfile that “,.the situation is a custody battle and the allegations of physical abuse are unfounded.” (/d.) That concluded the welfare department’s action. On September 17, 2008, the family law court entered the order referenced above: primary custody of B.H. with the mother, and custody every weekend plus one mid-weekvisit for the father. (AA 107-109). On September 22, when Hanson picked up B.H.from thefirst weekendvisit following that court order, she called Kinney and said B.H. had some unexplained bruising. (AA 110-111; 257-258). Kinney asked Hanson if B.H. should see a doctor, but Hanson declined stating that she had a doctor’s appointment scheduled for him the next day. (AA 153). Before dropping B.H.at the Kinney residence and leaving again, Hanson took several photographsofthe boy at Kinney’s suggestion. (AA 148-149; 150; 257-258; 349-351; 353-359). Hanson then left B.H. with Kinney, and wentto school. Hanson did not return to B.H.after class, but instead went to a party until 3:00 a.m. the next morning. (AA 151; 261; 262; 115-116; 262- 263). Later that evening, in Hanson’s absence, Kinney called the Sheriff's Department and reported that she and Hanson were ina custody dispute with B.H.’s father, and that “...[Hanson’s] ex- boyfriend has her son on weekends...and he came back this weekend really beat up. He’s got bruises, like, all over his forehead.” (AA 274). The sheriff's dispatch operator offered medicalattention, but Kinney declined, explaining that the boy would be taken to his doctor the next day. Kinney further explained that she felt obligated to report the incident so she “...just need[ed] to report that it was done.” (AA 275). Finally, she stated that B.H.’s father explained B.H.fell out ofa vehicle, while Sharples’ girlfriend said he fell down somestairs, raising her suspicions that the boy had been abused. (AA 276). Deputy Swanson wasdispatched to the Kinney residence with only the following information: A two-year-old juvenile presently at Kinney’s address had beenat his father’s home for the weekend. The father was identified by name and partial address only. The child’s mother was not with the child at the time of the call, and child’s “grandmother” (Kinney) was advised by the child “...that he fell at a fast food place on somestairs,” but the grandmother(identified by name andaddress) disbelieved this and “...[felt] the bruises [were] from the father hitting [the] juv[enile].” (AA 315). The deputy was also told that medical attention was offered and declined because the boy had a scheduled doctor’s appointmentthe next day. Finally, the dispatch message noted that Kinney requested a deputy “for RPT [Report].” Ud.) When Deputy Swansonarrived at the Kinney home, B.H. was in bed asleep. He was awakenedandbroughtto the deputy, and she visually observed what she could, but noted that B.H. wasstill partially asleep and not terribly cooperative. (AA 289-300). The deputy spent twenty minutes in the home with Kinney and B.H., and then went to her police car and ran computer checks on Hanson and Sharples. (AA 287-288). Swanson returned to the house, left her card with Kinney, and requested that she have Hansoncall her as soon as she came home. (AA, 290-291; 294; 301-302; 304-305). Deputy Swanson neverheard from Hanson or Kinney again, and it was later revealed that B.H. was not taken to his medical appointment. (AA 302; 306-307) After three days and no further communication from Kinney, Hanson, or B.H.’s doctor, Deputy Swansonprepared her report noting that: [B.H.] is Kinney's grandson. Over the weekend, [B.H.] wasat visitation with his father, Louis Sharples. When [B.H.] returned from visitation, Kinney discovered [B.H.] had a cut and bruising abovehis right eye. He also had small bruises, which appear to be old, on his upper right arm and onhis back. Kinney contacted Sharples, who told her [B.H.] had fallen while at Wienerschitzel and bumped his head. Kinney and her daughter, Lauri Hanson, are in an ongoing custody dispute with Sharples. Kinney requested documentation ofthe incident. Case for information only at this time and forwardto station files. (AA 281-282; 311-313). Based on the information she had at that point, Swanson did not suspect parental abuse had occurred and "cleared" the case. She submitted her report to her supervisor, and no further investigation or reporting occurred. (AA, 281-282; 283; 285; 289; 298; 303; 311-313; 315; 318; 321-323). In mid-October, Hansonleft B.H. with Sharples for the weekend. (AA 93-95). On that Saturday afternoon, Sharples called "9-1-1" and reported B.H. had fallen, hit his head, and would not wake up. (AA 331). Emergency personnel responded, and B.H. was taken to Loma Linda University and admitted for emergency treatment for severe head trauma. (AA 164-165; 336-338). Sharples was arrested and charged with criminal child abuse. This civil action wasalso initiated. Although Sharples was acquitted of all criminal charges, he never appearedin this civil action, and a default was entered. In this lawsuit, Plaintiff's claims have transformed over time. In their first iteration, Plaintiff wrote in his governmenttort claim that the deputy breached her mandatory duty to investigate Kinney’s abuse allegations. (Motion for Judicial Notice (“MIJN”), Exhibit “2,” Tort Claim, 3:4-18). Alternatively, Plaintiff claimed that a jury should decide whether it was reasonable for the deputy not to suspect child abuse following her investigation. Plaintiff claimed that the deputy breached her “duty” to suspect abuse, and therefore to cross- report to the district attorney, the Department of Justice, and DCS. (Id. at 8:21). Plaintiff later advanced two claims not contained anywhere in his tort claim: 1) that Deputy Swanson, breached a mandatory duty to immediately report Kinney’s call to the County welfare department; and 2) that pursuant to Cal. Penal Code § 11166(k) ofthe Child Abuse and Neglect Reporting Act (“CANRA”), the Sheriff's Department, as an entity separate and apart from its employees, breached its mandatory duty to report Kinney’s call immediately to the County welfare department. (Plaintiffs OpeningBrief on the Merits (“Opening Brief”), 13-14). I. OVERVIEW OF THE ACT In 1980, Senate Bill 781 was added to the Penal Code as the Child Abuse and Neglect Reporting Act. The Act, inter alia, designated whois required to report suspected abuse or neglect (“mandated reporters’’); what those reporters are required to report (“mandated reports’); when the duty to report is triggered; and where the reports are to be made. Forty-four categories of professions and occupations were designated as mandated reporters. Cal. Penal Code § 11165.7. What was required to be contained in their “mandated reports” is spelled out in Cal. Penal Code § 11167 (a)-(b). When the reporting duty is triggered is found in Cal. Penal Code § 11166(a). Andfinally, Cal. Penal Code § 11165.9 specifies where abuse reports are to be directed. Id. (“Any police department, sheriff department, probation department if designated by the County to receive mandated reports, or the County welfare department.”) In 1986, in the seminal case ofPlanned Parenthood Affiliates of California v. John K. Van De Kamp (1986) 181 Cal.App.3d 245, the Court of Appeal was tasked to make determinations about CANRA’s legislative purpose and effect based on a scenario similar to the one Plaintiff advances to this Court. In that case, a fourteen-year-old patient confided to her doctor that she was involved in a consensual sexual relationship with an age-appropriate male, and she denied abuse. /d. at 257. The question was then whethera physician, as a mandated reporter under the Act, was required to make a blanket, non-discretionary report of “reasonably suspected”child abuse, even if he did not actually suspect the child was in an abusive relationship. The court observed that, fundamentally, with this broad based reporting scheme,“the Legislature acknowledged the need to distinguish between instances of abuse and those oflegitimate parental control.” Jd. at 258. Thus, “[t]o strike the ‘delicate balance’ between child protection and parental rights the Legislature relies on the judgment and experience ofthe trained professionals to distinguish between abusive and non-abusivesituations.” Jd. Those trained professionals, the mandated reporters in the Act, “are presumedto be uniquely qualified to make informed judgments when suspected abuseis not blatant.” Jd. at 259, citing Comment, Reporting Child Abuse: When Moral Obligations Fail (1983) 15 Pacific L.J. 189, 214. On pain of criminal prosecution, CANRA requires a mandated reporter, when he or she “entertain[s] a suspicion” of child abuse or neglect, to make a mandated report to one of several governmental agencies. Cal. Penal Code § 11166(a); Cal. Penal Code § 11165.9. The Act also permits, but does not require, anyone else to make a report if abuse is suspected. Cal. Penal Code § 11166(g) (“Any other person who has knowledge or reasonably suspects [a child has been abused] mayreport...”) (Emphasis added). Records of mandated reports are required to be maintained by these agencies. Cal. Penal Code § 11165.9 (“Agencies that are required to receive reports... from a mandated reporter...shall maintain a record ofall reports recetved.”) The Act creates a screening process of reporting, investigation, and cross-reporting to minimize the risks associated with misreporting suspected abuse’ornot reporting actual abuse. In addition, the Act carefully identifies those professionals best able to make informed judgments about whatis, or is not, an abusive situation. The Act requires that mandated reports be made to agencies whose employees, by training and experience, are best suited to investigate those reports. Alejo v. City ofAlhambra (1999) 25 Cal.App.4th 1180, 1187 (“Suffice it to say, the whole system depends on professionals such as doctors, nurses, school personneland peaceofficers whoinitially receive reports of child abuse to investigate and where warranted, report those accounts to the appropriate agencies.”) “A child protective agency[’] receiving the initial child abuse report then conducts an investigation. The Legislature intends an investigation be conducted on every report received.” Planned Parenthood, supra, 181 Cal.App.3d at 259-260. Every employee of every California law enforcement agencyis designated to be both a mandated reporter, and also an employee of an agency tasked with receiving reports ofknown or suspected abuse under § 11165.9. Cal. Penal Code § 11165.7(a) provides: “As used in this article, ‘mandated reporter’ is defined as any ofthe following: ' Over reporting of abuse to public agencies ultimately works against children in danger. See generally, Steven J. Singley, Failure to Report Suspected Child Abuse: Civil Liability of Mandated Reporters (1998) 19 J.Juv.L 236. * “Employeesof ‘child protective agencies’ consist ofpolice and sheriff's officers, welfare department employees and county probation offices. (§11165, subd. (k).)” Planned Parenthood, supra, 181 Cal.App.3d at 258. KKK (34) an employee of any police department, county sheriffs department, county probation department, or County welfare department. Similarly, section 11165.9 providesin part: reports of suspected child abuse or neglect shall be made by mandatedreporters...to any police departmentor sheriff's department not including a schooldistrict police or security department, county probation department, if designated by the county to receive mandatedreports, or county welfare department. The Act obligates those agencies to accept reports of suspected child abuse, whether from a mandated reporter or “any other person,” i.e. from anyone. Cal. Penal Code § 11166(g); See also, Cal. Penal Code § 11165.9 (“Any ofthese agencies shall accept a report of suspected child abuse or neglect whether offered by a mandated reporter or anotherperson...”) A. Deputy Swanson’s Duty to Report In this case, it is undisputed that Kinney was not a mandated reporter, and that on September 22, 2008, she called the Sheriff's Department stating she believed B.H.’s father may have abused him. She also told the 9-1-1 operator that she and the boy’s mother werein a custody dispute with the father. That information was then electronically dispatched to Deputy Swanson’s computer terminal in her patrol car. (AA 315). 10 Plaintiff argued for the first time on appeal that under CANRA, the deputy was required to immediately report Kinney’s suspicions to the district attorney and the appropriate welfare agency before even investigating the call. (Plaintiff's Opening Brief, 56)(“11666(a) does not require that a mandated reporter investigate anything before his or her duty to report is triggered.”) However, the decision Plaintiff cites for this proposition actually states precisely the opposite: First, the statute imposes a duty to investigate. Although section 11166 subdivision (a) does not use the term investigate, it clearly envisions some investigation in order for an officer to determine whetherthere is reasonable suspicion to support the child abuse allegation andto trigger a report to the county welfare department and the district attorney under section 11166(i)[*] and the Department of Justice under section 11169(a). Alejo, supra, 25 Cal.App.4th at 1186. Similarly, the court in Planned Parenthood declared that “[the] Legislature intends an investigation to be conducted on every report received.” Planned Parenthood, supra, 181 Cal.App.3d at 259 (Emphasis added). This makes perfect sense given that “[a] fundamental part ofthe reporting law is to allow the trained professional to determine an abusive from a non-abusive situation.” Planned Parenthood, supra, 181 Cal.App.3d at 272. * At the time ofthis decision, 11166(i) had the same languageasis now foundin § 11166(k). 11 Plaintiff nevertheless argues that an allegation of child abuse by any person (a non-mandatedreporter), to any mandated reporter, such as any employee of a sheriff's department, creates a mandatory duty for that employee to immediately report the allegation to the agencies identified in Cal. Penal Code § 11165.9 (law enforcement, welfare, district attorney). As Plaintiff would interpret the Act, if Kinney, or anyonefor that matter, told the family doctor (a mandated reporter*) that a child, any child, had been abused, the doctor would presumably be obligated to immediately report suspected child abuseto a child protective agency without so muchas an examination ofthe child. In this case then, the 9-1-1 operator who answered Kinney’scall, as a mandated reporter, was duty-bound to immediately report whatever Kinney claimed to those agenciesasif it were a mandated report.° If Plaintiff's theory is correct, then the reporting threshold of “knowsor reasonable suspects” found in section 11166(a) is meaningless. Section 11166(a) triggers a mandated reporter’s duty to report allegations of abuse “whenever the mandated reporter, in his or her professional capacity...knowsor reasonably suspects [child abuse].” Cal. Penal Code § 11166(a). Plaintiff, however, reads this language out of the Act by arguing that every accusation ofchild abuse from anyoneto a mandated reporter must, without exception, be immediately reported to the other child protective agencies: probation, welfare, and the district attorney. * See, Cal. Penal Code § 11165(23) ° “Any report made by a mandatedreporter...shall be known as a mandatedreport.” Cal. Penal Code § 11166(a)(3). 12 In addition to the impracticality of Plaintiffs position, the difficulty with this argumentlies in the statuteitself. It is, of course, the court’s province to construe the laws enacted by the Legislature, and in so doing, courts endeavorto ascertain and effectuate the Legislature’s intent. DeYoung v. San Diego (1983) 147 Cal.App.3d 11, 18; People v. Starr (2003) 106 Cal. App. 4th 1202, 1207 (The interpretation of a statute is a judicial function, as a statute’s meaning is a pure issue of law.); Apple Computer, Inc. v. County ofSanta Clara Assessment Appeals Bd. (2003) 105 Cal. App. 4th 1355, 1370. To be sure, courts must be guided by several principles in statutory construction: 1) give effect to the entire statute; 2) avoid a construction that renders some wordsas surplusage; and 3) find a construction that harmonizesall the sections ofthe statute. Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal. 3d 650, 658-659; see also, Cal. Civ. Proc. Code § 1858 (“In the construction of a statute... where there are several provisions or particulars, such a constructionis, if possible, to be adopted as will give effectto all.’’) The foregoing principles doom Plaintiff's proffered interpretation ofthe Act. First, without exception, every “employee of any police department, county sheriff's department, county probation department, or county welfare department is a mandated reporter.” Cal. Penal Code §11165(a)(34). Further, the Act very clearly obligates every mandatedreporter to “... make a report to an agency specified in section 11165.9 [police department or welfare department] when the mandated reporter...has knowledgeof or observes a child whom the mandated reporter knows or 13 reasonably suspects has been the victim of child abuse or neglect.” Cal. Penal Code § 11166(a) (Emphasis added). Thus, for example, whenthe non-mandatedreporter alleges abuse of a child to the family doctor, the doctor, as a mandatedreporter, is not obliged to report that bare allegation until further inquiry by him orher leads the doctor “in his or her professional capacity” to “reasonably suspect” child abuse. Cal. Penal Code § 11166(a). Plaintiff's theory, that “§ 11166(a) does not require that [Swanson] ‘investigate anything’ before her duty to report is triggered”(Plaintiff's Opening BR.at 56) in this case meansthat Swanson was mandatedto cross-report based only on whatinitially appeared on her mobile computer terminal: Entry: Text:2 YO JUV WAS AT FATEHRS[SIC] HOUSE FOR THE WEEKEND AND CAME HOME WITH BRUISES ON HIS FOREHEAD...LUIS SHARPLES DOB UNK 19Y0 LIVES AT UNK ADDR ON CALIFORNIA ST...MOTHEROFJUV IS LORI HANSON DOB 12071988 IS NOT AT LOC...RP IS THE GRANDMOTHER,STS JUV TOLD HER THAT HE FELL OUT OF THE FATHERSTRK, RP SPOKE TO FATHERS GF WHO STS THE JUV FELL AT A FAST FOOD PLACE ON SOME STAIRS, RP FEELS THE BRUISES ARE FRM THE FATHER HITTING JUV. REQ DEP FOR RPT (AA 315). With this, and despite never having even metthe reporting party, the alleged victim, or any memberofthe alleged victim’s 14 family, Plaintiff argues that Deputy Swanson was mandated to immediately report child abuse to the district attorney and welfare department pursuant to section 11165.9. In addition to completely eliminating the triggering provisions of section 11166(a), Plaintiff's interpretation would also render section 11167 largely meaningless: “[rleports of suspected child abuse pursuant to section 11166...shall include the name, business address, and telephone numberofthe mandated reporter...and the information that gaverise to the reasonable suspicion of child abuse...” Jd. (Emphasis added). In this scenario, there was no mandated reporter, and certainly none with a “reasonable suspicion”of child abuse. Interestingly, the only provision in this Act that spells out reporting requirements whentheinitial allegation comes from a non- mandated reporter requires very limited reporting, and onlyifthe allegations are “substantiated.” In section 11165.14, the legislature addressed a situation, all too commontoday, where a student’s parent or guardian (a non-mandated reporter) complains to a school or an agency designated in section 11165.9 (law enforcement, probation or welfare) of abuse to his or her child occurring at a school site. The Act specifically provides that the “appropriate law enforcement agency” investigate the complaint and “...shall transmit a substantiated report of that information to the appropriate school district or county office of education.” Jd. (Emphasis added). Ifthe Act also intended much broader immediate reporting based on the complaint alone before any investigation, this section would so provide. 15 The crux ofCANRA is the informed decision by those judged most capable to spot what is, and whatis not, in their professional capacity, reasonably suspected to be child abuse. That judgmentcall must be informed by whatever the mandatedreporterfeels is necessary: that a doctor, for example, take whatever action necessary to determine whether, in his or her professional capacity, he or she reasonably suspects child abuse. If this were not the case, and every allegation of suspected child abuse from any person wasto be immediately reported throughout the system, the “fundamental part of the reporting law ] to allow the trained professional to determine an abusive from a non-abusivesituation” would belost entirely. Planned Parenthood, supra, 18\ Cal.App.3d at 272. In short, the important provisions contained in section 11166(a) are eliminated by Plaintiff's construction of the deputy’s duties under CANRA. This unfiltered system of reporting was already considered and rejected by the Court of Appealin Planned Parenthood. Beyond the plain language ofthe statute, the Planned Parenthood court recognizedthe societal toll that would result from indiscriminate reflexive cross-reporting. Planned Parenthood Affiliates, supra, 181. Cal.App.3d at 258-259 ( “[T]he Legislature recognizes that the reporting of child abuse ... involves a delicate balance between the right ofparents to control and raise their own children by imposing reasonable discipline and the social interest in the protection and safety ofthe child ... .”’) B. Deputy Swanson’s “Duty” To Suspect Abuse Asan alternative to the claim that Swanson had an immediate duty to report Kinney’s call, Plaintiff argues that a jury should decide 16 if Swanson was reasonable whenshe did not suspect abuse. (Plaintiffs Opening Brief, 57)(‘“This question (i.e. whether a reasonably prudent person in [respondent’s] position would have entertained that suspicion) is a question of fact to be determinedat trial.”) This argument lacks merit and ignores numerous opinions which uniformly hold that the decision whether abuseis suspected, and the investigation that informs that decision, are discretionary acts covered by immunities in the Government Code. Cal. Gov. Code § 820.2 provides: Except as otherwise provided bystatute, a public employeeis not liable for an injury resulting from his act or omission where the act or omission wasthe result of the exercise ofthe discretion vested in him, whetheror not such discretion be abused. Cal. Gov. Code § 821.6 provides: A public employee is notliable for injury causedbyhis instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause. The Court of Appeal in this case correctly determined that the deputy’s decision-making as to whetheror not she suspected child abuse was unquestionably a discretionary act: “the decision to not cross-report was tantamount to a decision to not prosecute, whenit was the product of an investigation the decision was grounded on the judgment, expertise and discretion of the investigating Sheriff's deputy.” (Opn., 9-10). The case law is uniformly in accord with this 17 view. In fact, Plaintiff has cited no case law in supportofhis interpretation of the Act in this regard, and for good reason — thereis none. In Jacqueline T. v. The Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, allegations of child abuse were reported to various child protective agencies by family members. Each report was investigated, but after each investigation the social worker decided she did not suspect abuse, and therefore returned the girl to her father’s custody. Following a vicious assault on the child by her father, a civil suit was initiated presenting similar claims to those advanced here. Thetrial court rejected defense claims of immunity and denied summary judgment. The Court of Appeal, however, issued an alternative writ of mandate reversing that decision and directed the trial court to enter summary judgmentin favor of the defendants° based on both the discretionary (Cal. Gov. Code § 820.2) and prosecutorial immunity (Cal. Gov. Code § 821.6). Id. at 459. Following an unsuccessful petition for review to this Court, final judgmentin favor ofthe defendants was entered. On appeal from that judgment, the court again reviewed this issue noting that in the prior decision “we concluded that both County and employees were immunefrom liability under twostatutes — Government Code § 821.6 and/or § 820.2. In so concluding, we reasonedthat ‘the investigation of child abuse and the decision of ° The Defendants were a County Child Protective Services Agency (Welfare Department) and twoofits social workers. 18 whataction, if any, should be taken are uniquely governmental functions. [fn omitted]. A decision to remove a child from his/her homeor not to do so and the investigation that informs that decision involved precisely the kind of ‘sensitive policy decision[s] that require judicial abstention to avoid affecting a coordinated governmental decision making or planning process. (Barner [v. Leeds (2000) 24 Cal.4th 676,] 688[, 102 Cal.Rptr.2d 97, 13 P.3d 704].)” Id. at 463- 464. The court rejected the argumentthat the investigation and decision regarding whether abuse was suspected were “operational,” not discretionary, decisions, and thus, not protected by Cal. Gov. Code § 820 and/or § 821.6. Id. at 466. In rejecting this contention, the Jacqueline T. court pointed outthat: Several appellate courts, however, have rejected such reasoning. Those courts have held that a social worker's[’] decisions relating to, as here, the investigation of child abuse, removal of a minor, and instigation of dependency proceedings, are discretionary decisions subject to immunity under section 820.2, and/or prosecutorial or quasi- prosecutorial decisions subject to immunity undersection 821.6. (E.g., Alicia T. v. County ofLos Angeles (1990) 222 Cal.App.3d 869, 882-883, 271 Cal.Rptr. 513 [county and its social workers held immune from liability under “either or both of [sections 820.2 and 821.6]” for alleged ’ Welfare employees and law enforcement agency employeesare treated the same in CANRA. Cal. Penal Code § 11165(34); and Cal. Penal Code § 11165.9. They are both mandated reporters and employees of agencies designated to receive reports of child abuse. 19 negligence in investigating report of child molestation] [Alicia T.]; Jenkins v. County ofOrange (1989) 212 Cal.App.3d 278, 282- 283, 260 Cal.Rptr. 645 [county andits social workers held immune from liability under section 821.6 for “‘fail[ing] to use due care by not thoroughly investigating the child abusereport and fail[ing] to weigh and presentall the evidence”’] [Jenkins|; Newton v. County ofNapa (1990) 217 Cal.App.3d 1551, 1559-1561, 266 Cal.Rptr. 682 [citing section 820.2 in holding county immune from liability for actions “necessary to make a meaningful investigation” of child abuse] [Newton]; County ofLos Angelesv. Superior Court (2002) 102 Cal.App.4th 627, 633, 644-645, 125 Cal.Rptr.2d 637 [county held immune from liability under section 820.2 for alleged negligent placement and supervision of child in foster home where child was sexually molested] [Terrell R.]; [county held immunefrom liability under§ 820.2 for alleged negligent placement and supervision of child in foster home where child was sexually molested]; see also Ronald S. v. County ofSan Diego (1993) 16 Cal.App.4th 887, 899, 20 Cal.Rptr.2d 418 [county held immunefrom liability under section 821.6 for negligent selection of an adoptive home for a dependent child] [Ronald S.].) Such courts have reasoned that “Tclivil liability for a mistaken decision would place the courts in the ‘unseemly position’ of making the county accountable in damages for a ‘decisionmaking process' delegated to it by statute.” (E.g., Newton, supra, 217 Cal.App.3d at p. 1560, 266 Cal.Rptr. 682. See also Ronald S., supra, 16 Cal.App.4th at p. 897, 20 Cal.Rptr.2d 418[“[t]he nature ofthe investigation to be 20 conducted and the ultimate determination of suitability of adoptive parents [by social workers] bear the hallmarks of uniquely discretionary activity”].) Id. Plaintiff ignores all of these decisions entirely, and argues instead that whether Deputy Swanson’s failure to suspect abuse was »8 is a “question offact to be determinedattrial.”“reasonable (Plaintiff's Opening Brief, 58). Plaintiff relies on Alejo in this connection. The Court of Appeal below, however, correctly observed that Alejo is not authoritative on the question ofwhether the decision- making following a child abuse investigationis, or is not, discretionary within either Cal. Gov. Code § 820.2 or Cal. Gov. Code § 821.6 because that issue simply was not before the Alejo court. In Alejo, no investigation occurred, and the Alejo court found that to be a breach ofthe mandatory duty to investigate reports of suspected child abuse. Alejo never even addressed the implications ofthe immunities in Cal. Gov. Code §§ 820.2 and 821.6, and whethereither applied to the public employee’s decision making post-investigation because no investigation ever occurred. (Opn., 10). The Court in Jacqueline T. correctly observedthat: “Such courts have reasonedthat ‘[c]ivil liability for a mistaken decision would place the courts in the ‘unseemly position’ of making the County accountable in damagesfor a ‘decision-making process’ ® Cal. Penal Code § 11166(a)(1) provides in part: “Reasonable suspicion” meansthat it is objectively reasonable for a personin a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect.” 21 delegated to it by statute. Jacqueline T., supra, 155 Cal.App.4th at 466, citing Newton v. County ofNapa, 217 Cal.App.3d 1551, 1560, and Ronald S. v. County ofSan Diego (1993) 16 Cal.App.4th 887, 897 (“‘[t]he nature of the investigation to be conducted andthe ultimate determination ofsuitability of adoptive parents [by social workers] bear the hallmarks of uniquely discretionary activity”’). In Newton, a County was held to be immunefromliability for the manner in which its employees investigated reports of alleged child abuse, which included “failure to properly, thoroughly and completely investigate the source andbasis for the underlying [child abuse] complaint.” Newton, supra, 217 Cal.App.3d at 1561-1562,fn. 5 (Italics omitted). Thus, not surprisingly, the Court of Appealin this case reached the same conclusion:that the deputy’s decision-making in not suspecting abuse after her investigation was discretionary and therefore, protected by the aforementioned immunities. (Opn., 15- 16). The Court ofAppeal also looked to a case decided after Jacqueline T., Ortega v. Sacramento County Department ofHealth andHuman Services (2008) 161 Cal.App.4th 713. Ortega affirmed summary judgment in favor of a County and two ofits social workers in a case the court aptly described as a “tragic case [that] will make you sad.” /dat 715. In Ortega, a child becamethe victim of attempted murderandlife-threatening permanent injuries at the hands of her father just four days after a “lousy” investigation into repeated allegations that her father was abusing her. Followingthe social worker’s investigation and clearly erroneous decision that child abuse was not suspected, the child was returned to her father’s custody. 22 Four dayslater, he “savagely attacked [her] stabbing her with a knife in her heart and lung.” /d. at 719. Plaintiff charged that the County and its social workers breached mandatory duties related to the investigation and decision-making regarding whether abuse was suspected. Rejecting those arguments, the Ortega court specifically pointed out that the process of “conducting an investigation and making a determination about potential risk to the child are not ministerial duties, and both involve a formidable amountofdiscretion, notwithstanding that the investigation was ‘lousy’...and clearly the determination was the wrong one. However, that is what § 820.2 immunity does — it immunizesdiscretionary decisions whether or not such discretion be abused.” Jd. at 728. The court recognizedthat “the Legislature has chosen to immunize government employees from liability for discretionary acts, whether or not such discretion be abused. The Legislature has determined that government could not function if its employees were subjectto liability for their discretionary acts, even wherethat discretion is exercised badly.” Id. at 716. The recent case of Christina C. v. County ofOrange (2013) 220 Cal.App.4th 1371 reached a similar result. Christina C. also involved social workers’ decisions, which did not end well, concerning child custody issues in the midst of allegations of severe child abuse. The trial court granted summary judgment in favor ofthe County andits employees. The Court of Appeal agreed, noting that “...under the immunity afforded social workers in Government Codesection 820.2, it is irrelevant whether Defendants werecorrect in their decisions or 23 even whether they abused their discretion.” Jd. at 1377. The Christina C. court observed further that “the trial court properly determined Defendants were entitled to judgment as a matter of law based on the immunity that shields discretionary decisions by public employees.” The court pointed out that “[t]he immunity applies even to ‘lousy’ decisions in which the worker abuseshis or her discretion, including decisions based on ‘woefully inadequate information.’” Id. at 1381. Thus, “[s]ection 820.2 specifies no exception for malice...the same wide discretion applies even if [the social workers] were grossly incorrect...As the Ortega court explained, ‘claims of improper evaluation cannotdivest a discretionary policy decision of its immunity.” Jd. at 1381 (Citations omitted). It is not surprising that Plaintiff's argument does not mention any of the foregoing decisions. Likewise, it is not surprising that Plaintiff cites no authority suggesting that the extraordinarily difficult and sensitive job assigned to public employees who mustdeal with abuse allegations, often in the midst of chaotic family conditions, does not involve the exercise of discretion. There are none because “[t]he Legislature has determined that government could not function if its employees were subject to liability for their discretionary acts, even where the discretion is exercised badly.” Ortega, supra, 161 Cal.App.4th at 716. Determining whether child abuse is suspected and whether there will be governmental intervention into otherwise intensely private family relations is a uniquely governmental function which, of necessity, calls upon the training and expertise ofthe public 24 employees entrusted with that heavy responsibility.” The consequencesoferroneous decisions, either way, are substantial. Ata minimum, one and perhaps multiple agencies will investigate each report of suspected abuse, whichaloneis intrusive and can be very traumatic. Reports then become documented and must be maintained by the agencies involved. Cal. Penal Code § 11166. There is an unavoidable risk of error because judging the meaning and intent behind interpersonalrelations involving children is fraught with difficulty and requires the deliberate, professional, and experienced exercise of discretion. It truly would be “unseemly”to have courts and juries second guessthese difficult choices years later and with the nearly perfect clarity of hindsight. There are sound reasons for these immunities, and this case falls squarely within them. WI. THE SHERIFF’S DEPARTMENT’S DUTY TO REPORT UNDER CANRA Plaintiff argues that section 11166(k) ofCANRA obligates every police and sheriff's department, separate and apart from the employees of those departments, to immediately report every allegation of child abuse which comesto the agency from any person, without regard to whether abuse is reasonably suspected. (Plaintiffs Opening Brief, 29)(“§ 11166(k) requires that the law enforcement * Indeed,Plaintiff recognized the horrors of false reporting in his own life. (See, AA 6)(“Further, after SHARPLES...intentionally and fraudulently attempted to conceal the fact that he had caused injury to [B.H.] by making a false report in violation of California Penal Code § 11166 on July 2, 2008, to the Defendant COUNTY OF SAN BERNARDINO,through its Sheriff's Department, stating that Lauri Hanson hadinflicted the aforementioned scratches on [B.H.]’”) 25 agency itself inform child welfare services about every initial report of suspected child abuse it receives from any person...”) As a threshold matter, this claim was not properly set out in the governmental tort claim as required by Cal. Gov. Code § 945.4. A. The Claim Against the Sheriff’s Department Predicated Upon A Violation of Section 11166(k) Was Not Properly Raised. Asthe Court of Appeal noted, “at oral argument, plaintiff argued that a separate and independent duty to cross-report is imposed by Penal Code section 11166 subdivision (k), an argument not presented in the trial court and not raised in the opening or reply briefs'°.” (Opn., 12). This theory, that the department alone had an independent reporting duty, was neverraised in the trial court because it was neveralleged in the Complaint or the governmenttort claim. Nevertheless, it has now becomethe focal point ofPlaintiffs arguments here. The Court should decline Plaintiff's invitation to issue whatis an advisory opinion interpreting section 11166(k) because it is not an issue properly in controversy here. See, California Rule ofCourt, rule 8.516(b)(2)(Supreme Court may decide issues “if the case presents the issue.”); Younger v. Superior Court (1978) 21 Cal. 3d 102, 119 (“[t]he rendering of advisory opinions falls within neither the functions nor ' Plaintiff did argue in his Opening Brief to the Court of Appeal that subdivision (k) imposes a separate and distinct duty on the Sheriffs Department. As such, the Court of Appeal erred when it made this observation but was correct that this issue was neverraised in thetrial court. 26 jurisdiction of this court.”); Jn Re Governship (1979) 26 Cal. 3d 110,116 (“It is well settled that rendering “advisory opinions”is not a judicial duty imposed byarticle III, section 3, or article VI, sections 10 or 11 ofthe Constitution.’’). 1. The Government Tort Claim Plaintiff's government tort claim never presented the issue of whether section 11166(k) imposed a mandatory reporting duty on the San Bernardino Sheriff's Department, as an entity, to immediately cross-report every claim of child abuse received in the department. It is well settled that in order to bring a claim against a governmentalentity, a plaintiff must first file a governmenttort claim setting forth his or her claims in a mannersufficient to provide the entity with an opportunity to investigate those claims, as a prerequisite to the filing of a lawsuit. See, Cal. Gov. Code, §945.4. In particular, [S]ection 945.4 requires each cause of action to be presented by a claim complying with section 910, while section 910, subdivision (c) requires the claimantto state the “date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.” Ifthe claim is rejected and the plaintiff ultimately files a complaint against the public entity, the facts underlying each cause of action in the complaint must have been fairly reflected in a timely claim. Stockett v. Association of Cal. Water Agencies Joint PowersIns. Authority (2004) 34 Cal. 4th 441, 447 (Emphasis added); see, Fall River Joint Unified Sch. Dist. v. Superior Court (1988) 206 Cal. App. 27 3d 431, 434 (“[T]he factual circumstancesset forth in the written claim must correspond with the facts alleged in the complaint”); Donahue v. State ofCalifornia (1986) 178 Cal. App. 3d 795, 802-803 (claim alleging negligence in permitting uninsured motorist to take driving test cannot support action also alleging negligencein failing to direct or control motorist during driving test); Doe 1 v. City of Murrieta (2002) 102 Cal. App. 4th 899, 920 (“a claim. . . mustset forth all the legal and factual bases that will be asserted in any subsequent lawsuit”); Shoemaker v. Myers (1992) 2 Cal. App. 4th 1407, 1426 (“[a] theory of recovery not included in the tort claim may not thereafter be maintained”). A lawsuit against a public entity is confined to those factual circumstances and theories of recovery explicitly set forth in the tort claim, and any theories of recovery or causes of action not specifically set forth in the claim are barred as a matter of law under Cal. Gov. Code § 945.6. California courts have repeatedly reaffirmed the importance of compliance with Cal. Gov. Code § 945.4 as a prerequisite to imposing liability upon a public entity, recognizing that “[t]he primary function of [section 945.4] is to appraise the governmental body of imminent legal action so that it may investigate and evaluate the claim and where appropriate, avoid litigation by settling meritorious claims.” Elias v. San Bernardino County FloodControl District (1977) 68 Cal. App. 3d 70, 74. As further explained by this Court, “[o]nly where there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the 28 claim,’ have courts generally found the complaint barred.” See, Stockett v. Association ofCalifornia Water Agencies Joint (2004) 34 Cal. 4th 441, 447 (internal citations omitted). This type of “complete shift” is precisely what has occurred here. Indeed, Plaintiff now advocates a position that is contrary to the claims set forth in his tort claim. Plaintiff presented his claim on March 9, 2009. However, the claim failed to raise the theory of a duty on the Sheriff's Department to immediately cross-report. Plaintiffs tort claim contained 13 pages of detailed facts forming his claims against the County of San Bernardino. Specifically, the tort claim alleged that “Deputy Sheriff K. Swanson, Deputy Sheriff Jeff Bohner and Does 1-100 failed to investigate the suspicious visible physical injuries and child abuse of [B.H.] which Christy Kinney reported to them on September22, 2008,” and further that “Deputy Sheriff K. Swanson, Deputy Sheriff Jeff Bohner and Does 1-100 failed to report and cross-report the visible physical injuries and child abuse of [B.H.] which Christy Kinney reported to them.” (MIJN, Tort Claim, 3). The tort claim specifies that the legal basis for these claims is section 11166(a) of CANRA: “Section 11166 subdivision (a) imposes two mandatory duties on a police officer who receives an account of child abuse. First the statute imposes a duty to investigate .. . the statute also imposesa duty to take further action when an objectively reasonable person in the samesituation would suspect child abuse . . . The duty to investigate and report child abuse is a mandatory duty undersection 11166, subdivision (a). ..” (MIN, Tort Claim, 4). Thus, in the tort claim the only theory asserted wasthat the individual employees 29 breached duties under section 11166(a)to first investigate, and then cross-report. Whatthe tort claim does notallege is that the Sheriff's Departmentitself breached a duty to immediately cross report the initial Kinney 9-1-1 call, with no investigation. The tort claim actually states the exact opposite —“The whole system depends on professionals such as the sheriff departments whoinitially receive reports of child abuse to investigate and, where warranted, report those accounts to the appropriate agencies.” (MJN, Tort Claim, 5) (Emphasis added). Moreover, despite citing numerous provisions of CANRA,nowherein the tort claim is section 11166(k) even mentioned, let alone any claim that Plaintiff intended to seek damages directly against the Sheriff's Department basedsolely on an alleged violation ofits independent mandatory duty to cross report underthat section. Plaintiff's failure to give fair notice of this claim precluded investigation and litigation of this issue before the trial court. Rather, the focus was what wasactually alleged in the tort claim — whether sheriff's employees failed to properly investigate and report, not what the department did or did not do, separate from its employees. As such, Plaintiffs failure to include this theory in the tort claim bars his recovery on such a theory. See, Hernandez v. Garcetti (1998) 68 Cal App 4th 675, 679 (“Section 945.4 precludes a lawsuit for damages against a governmental entity whenthe plaintiff has not followed the claims procedure required by the Tort Claims Act.) 30 2. The Complaint Plaintiff's Complaintalso fails to allege that the San Bernardino Sheriffs Department, apart from its employees, breachedits duty to report under section 11166(k). There are only two causesof action asserted in the Complaint against the County. Thefirst is that mandatory duties were breached pursuant to Cal. Gov. Code § 815.6, and the secondis that the Departmentis liable for the negligent actions of its employees under Cal. Gov. Code § 815.2. The identical allegations appear under both causesofaction. These causes of action are preceded by forty-four paragraphs of general allegations. Nowherein these preliminary allegationsis section 11166(k) ever referenced, and there are no allegations that the County and/or its Sheriff’s Departmentis directly liable for failing to immediately cross-report. Rather the allegations are “Defendant K. Swanson, Jeff Bohner, and Does 1-100 failed to properly report and/or cross report” and again that “despite their both being mandated reporters pursuant to applicable statutory and commonlaw, Defendant Swansonandher supervisor Defendant Bohnerfailed to report [B.H’s] injuries to the District Attorney or Departmentofjustice, and failed to make a cross-report to the Department of Children Services (DCS).” (AA 10, 12). Plaintiff alleged that the individual employee Defendants failed to report, not that the department breached a separate and distinct independent duty to report. 31 It is not until paragraphs 59, 60, and 61 that Plaintiff makeshis only mention of subsection (k)'’. (AA 18-19). However,Plaintiff broadly alleges all Defendants breached a mandatory duty, and then recites the statutory provisions of (k). When Plaintiff actually sets forth the factual allegations which form the basis of these alleged statutory violations, he clarifies “[t]he intent of the system is to protect children from abuse. The system dependson professionals e.g. employeesof sheriffs’ departments such as Swanson and Bohnerand Does 1-100, and law enforcement agencies, such as the County of San Bernardino and City of Yucaipato investigate initial reports of suspected child abuse and where warrantedasit wasin this case concerning [B.H.], to report accounts of abuse to appropriate child welfare agencies.” (AA 20)(Emphasis added). Thus, as with his tort claim, Plaintiff's allegations from the outset concernedthe failure of individuals to investigate whichled to a failure to report. Plaintiff neveralleged that reporting by the departmentitselfwas required prior to, and regardless of, any investigation. Given the foregoing, this claim should not be addressed here. See, Pierce v. Pac. Gas & Elec. Co. (1985) 166 Cal. App. 3d 68, 78 ("The general and long-standingrule is that a party must recover on the causeofaction he has alleged in his complaint and not on another cause of action disclosed by the evidence.") '! Duplicate allegations can be found in paragraphs 88, 89 and 90 under the Second Cause of Action. (AA 28-29) 32 3. The Trial Court Defendants filed their summary judgment based onthe issues that were raised by Plaintiffs tort claim, as reflected in the Complaint, that Defendants “failed to discharge its mandatory duty to investigate the Kinney report on September 22, and, that the County Defendants then failed to discharge its mandatory duty to cross-report knownor suspected abuse.” (AA 52)(Emphasis added). Defendants argued that these claims were barred by the immunities set forth in Cal. Gov. Code §§ 815.2, 820.2 and 821.6. In opposition to summary judgment, Plaintiff claimed Defendants were missing the point because “Government Code Section 815.6 imposes a mandatory duty on law enforcement agencies to report to designated county child protective services agenciesall reports of suspected child abuse reported to law enforcement. Contrary to the way in which Defendants have crafted their argument, this duty is not derivative ofthe duty to investigate.” (AA 374). Thus, for the first time, Plaintiff raised a claim that there was an automatic immediate duty to report, even without any investigation. However, Plaintiff still focused on the duties allegedly breached by Deputy Swanson, not independently by the Department. Specifically, Plaintiff argued that “the issue in the present case is not the quality of Deputy Swanson’s investigation but her admitted failure to either cross-report to DCFSherself or to cause her departmentto cross- report to DCFSthe fact that Christy Kinney had reported child abuse.” (AA 377). While this argument did represent a significant departure from Plaintiff's tort claim and Complaint, which clearly alleged that cross 33 reporting was only required “where warranted”and only after investigation, it would have been improper for Defendants to introduce new evidence and new defenses such as Plaintiff's departure from their tort claim in a reply.” Defendants therefore responded by arguing that Plaintiff's reading of section 11166(k), which required a deputy to report even absent any suspected abuse by that deputy, would essentially render Cal. Penal Code § 11166(a) meaningless. (AA 688). Thetrial court thereafter granted Defendants’ summary judgment, and did not consider Plaintiff's new claim regarding § 11166(k). (AA 789-790). Plaintiff appealed. (AA 797-800). Before the Court of Appeal, Plaintiff argued that the individual deputies had a mandatory duty under section 11166(a) to investigate, and undersection 11166(k) to report. Plaintiff also asserted “in addition to, and separate apart from, Deputy Swanson’s mandatory duties . .. law enforcement agencies such as the San Bernardino County Sheriff's Department have duties as a mandated reporter.” (Appellant’s Opening Brief, 33). As explained in Respondents’ Brief, this wasthe first time Plaintiff claimed the Sheriffs Departmentitself had a duty to immediately report independent and irrespective of any of its employees. Defendants requested that the Court of Appeal decline to consider this new argument on appeal. See, Greenwich S.E., LLC v. Wong (2010) 190 Cal. App. 4th739, 767 (“Appellant has ’? Plaintiff's failure to comply with the Tort Claims Act wasraised in Defendants’ Answer. (AA 39). Hadthetrial court denied Defendants’ Motion for Summary Judgment onthis section 11166(k) issue, Defendant would have then been afforded the opportunity to litigate this new issue in thetrial court. 34 waived any such claim byfailing to raiseit in the trial court below.”); (Respondents’ Brief, 32-34). The Court of Appeal agreed with Defendants that the issue was never addressedat the trial court level but, nonetheless considered the claim finding that although “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 absence of an investigation.” The Court ofAppeal went further, explaining that “the statutory language providing that the law enforcement agency ‘shall’ cross report ‘every knownor suspected instance of child abuse reported to it’ implies that the duty to cross-report arises only after an investigation results in the determination that abuse is knownorthatit is objectively reasonable for a person to entertain such a suspicion, based on facts that could cause a reasonable person to suspect child abuse or neglect. Such reasonable suspicion could only arise in the mind of an employeeof a law enforcement agencyafter an investigation of the reported abuse has been undertaken.” (Opn., 14- 15)(Emphasis added). While the lower court’s reasoning is correct, this Court need not address this claim because it was never properly considered by the trial court. To the extent Plaintiff argues that the section 11166(k) claim against the department was somehowinferentially raised in the tort claim, that issue too should belitigated first in the trial court. See, Hernandez, supra, 68 Cal App 4th 675. 35 B. Section 11166(k) Does Not Require Immediate Reporting by a County Sheriff's Department. Evenifthe issue had been timely raised, and was properly before this Court, Plaintiff's proffered construction of section 11166(k) is wrong. Plaintiff argues that the Sheriff's Department, as an entity separate and apart from every one ofits employees, breached its mandatory duty to immediately report Kinney’s allegations in her 9-1-1 call. (Plaintiff's Opening Brief, 29-30). Plaintiff premises his argument on section 11166(k) which in part provides: 11166 (k) A law enforcement agencyshall 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 ofthe Welfare and Institutions Code andto the district attorney's office every known or suspected instance of child abuse or neglect reported to it... The contention is that this section “...creates a mandatory duty for a law enforcement agency to cross-report every report of suspected child abuse it receives...” (Plaintiff's Opening Brief, 16). Plaintiff contends that CANRA “never intended that law enforcement conduct an investigation into [a] child abuse report before cross-reporting to child welfare services.” (Plaintiff's Opening Brief, 18). To beclear, Plaintiff contends § 11166(k) provides, without exception, that “...it is mandatory that all reports received by law enforcementbe cross- . reported...” (Plaintiffs Opening Brief, 28). The “triggering event”to 36 the mandatory duty to immediately cross-report to the welfare department under section 11166(k), according to Plaintiff, is the receipt of any allegation of child abuse from anyone. (Plaintiffs Opening Brief, 30). Plaintiff contends the agency’s duty is absolute, and requires the agencyitself — not any of its employees — to cross- report every allegation of child abuse received from anyone. (Plaintiff's Opening Brief, 28) (“...it is mandatory that all reports received by law enforcement be [immediately] cross-reported to a county welfare services agency...“[t]he Legislature intended each and every report of suspected child abuse to be reported to the county welfare department. There simply are no exceptions in any statute or CANRA.”) Plaintiff argues that the Sheriff's Department’s duty to report to the welfare departmentarose “...immediately as of 10:14:22 p.m. September22, 2008...” (Plaintiff's Opening Brief, 37). This is the recorded time when the Kinneycall was received by the sheriff's dispatch operator, Nicole Kindle. (AA 315). The allegations Kinney reported were then known only by one employee ofthe department — that dispatch operator. Every employee ofthe sheriff's department, including Nicole Kindle, however, is a mandated reporter, and mandated reporters are only required to report abuse when heor she “knowsor reasonably suspects” abuse has occurred. See Cal. Penal Code §§ 11165.7(34) and 11166(a). Recognizing this, Plaintiff has strenuously denied ever - claiming that the dispatch operator was required to report Kinney’s call to the welfare department. (Plaintiff's Petition for Rehearing, 31) (“[Plaintiff] has never alleged that Nicole Kindle, the 9-1-1- operator 37 as an individual employee owed a duty to cross-report under§ 11166(k).”) The difficulty arises because at 10:14:22 p.m. on September 22, 2008, Kinney’s allegation of abuse was knownin the sheriff's department only by Nicole Kindle. If she had no duty to report as a mandated reporter, and accepting Plaintiff's observation that “a law enforcement agency is not a person [and] cannot entertain a suspicion...,” and is not a mandated reporter (AA 50, 48), the question arises — how can a law enforcement agency discharge a mandatory duty to report except through its employees? It cannot. Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 836 (“...an entity must act through its employees...”); C.A. v. William S. Hart Union High SchoolDist. (2012) 53 Cal.4th 861, 824-825 (“...[rJespondents are correct insofar as they state public entities always act through individuals.”); Black v. Bank ofAmerica (1994) 30 Cal.App.4th 1, 6 (“A corporation is, of course, a legal fiction that cannotact at all except through its employees and agents.”); Karst v. Vickers (N.D. 1989) 444 N.W.2d 698, 700 ("An inanimate object can neither have nor breach a duty of care."); Lippman v. City ofMiami (S.D. Fla. 2010) 724 F.Supp.2d 1240, 1259-60 ("Plaintiff has provided no authority for extending [case law] to include a duty of care to inanimate objects.") 3 It is noteworthy that in the Court of Appeal Plaintiff took the opposite position: “in addition to, and apart from Deputy Swanson’s mandatory duties as a reporter under § 11166(a) and § 11165.7 subd (34), law enforcement agencies such as SBSD haveduties as a mandated reporter.” (Appellant’s Opening Brief, 33). 38 Put another way, if none of the department’s employees are required to take a specific action — how can the departmentitself be under a mandatory duty to take that same action? Even moreto the point, if this puzzling separation of responsibility was intended by the Legislature, one would expect this to be clearly spelled out in the legislation. It is not. CANRA establishes a broad-based system of reporting and cross-reporting suspected child abuse whichis designed to separate credible reports from those based maliciously on false information or just on well-meaning misperceptions.'* Toward that end, CANRA designated people employed in the 44 specific professions and occupations to be “mandated reporters” whothe Legislature judged had the training, experience and expertise to be best able to make informed decisions about whatis, and is not, suspected to be an “Ina comprehensive national survey and analysis of abuse reporting lawsit is pointed out that over-reporting is a very real problem. “There has been a backlash against child abuse reporting laws due to the big numberofreports that are not substantiated — 75% of the over three million received each year by child protective services.” Further, it was pointed out that in 2008 “...56.6% of intentionally false reports come from the non-professional...sources.” Thomas L. Hafemeister, Castles Made of Sand? Rediscovering Child Abuse and Society’s Response (2010) 36 Ohio N.U.L.Rev. 819, 900-901. Another commentator observed “...child protection agencies are devoting a substantial amountoftheir time investigating unfounded reports.” And further, “This is a self-perpetuating problem. Because CPS workers’ case loads are heavy, they have less time and resources to investigate each report.” Steven J. Singley, Failure to Report Suspected Child Abuse: Civil Liability of Mandated Reporters (1998) 19 J.Juv.L 236, 239-240. 39 abusive situation. In short, the Legislature imposed this heavy responsibility on those most able to interpret the ambiguities of interpersonal relations, and make informed judgments about whether they reasonably suspect abuse or neglect as defined in the Act. Thus, the Legislature provided that every employee of every law enforcement agency in California is a mandated reporter. Cal. Penal Code § 11165.7(34). Plaintiff's construction of section 11166(k), however, allowing for no threshold screening of allegations of abuse made by anyone and received by anyonein a law enforcement agency ignores, and disrupts, the entire reporting schemein the Act. Plaintiff's argument is that a law enforcement agency is uniquely obligated to report to the county welfare department anybare allegation of child abuse coming into the department(albeit necessarily received by an employee who is a mandated reporter). Thus, Plaintiff claims that any call to any police department — whether from a well-intentioned store clerk at a mall, a malicious estranged spouse, or even a misguided angry juvenile — must, by some mechanism, be immediately reported to the “welfare services agency”by that inanimate police department even though noneofits employees are under the same obligation. (Plaintiffs Opening Brief, 28). Plaintiff's construction of section 11166(k) ignores, and is entirely at odds with, the plain language of the statute as a whole and indeed, even section 11166(k)itself. Plaintiff fails to explain how communication to, or from, an inanimate police department can occur unless through an employee ofthat department. Similarly, Plaintiff does not explain how that inanimate police department can report to 40 anyone,if not through its employees. Yet, this separation between the duty imposed on law enforcement agencies vis-a-vis their employees is, and must be, central to Plaintiff's argument. This is so because under section 11166(a), mandated reporters — i.e. every employee of every law enforcement agency — are duty-boundto receive allegations of abuse and to investigate as needed to decide whether abuseis reasonably suspected, and only if abuse is suspected to cross-report. UnderPlaintiff's theory, however, employees of law enforcement agencies are simultaneously mandated reporters and non- mandated reporters. The contradiction in Plaintiff's argumentis apparent. On the one hand, Plaintiff argues that the Sheriff's Departmentis not a mandated reporter as defined under the Act. (Plaintiff's Opening Brief, 52) (“‘...there is a recognized distinction between humanbeings who are mandated reporters and the employers which employ them which are not mandatory reporters...”) (Emphasis in original) On the other hand, Plaintiff argues that the Sheriff's Department is mandated to make blanket, nondiscretionary reports under the Act. (Plaintiff's Opening Brief, 15) (“Penal Code 11166(k) does create a mandatory duty requiring a law enforcement agency to cross-report...”). Thus, under the Act, according to Plaintiff, the Sheriff's Department is mandatedto report every accusation of abuse though emphatically not a mandated reporter under the Act.!° '° Plaintiff took the opposite position below. See footnote 13 supra. 41 Plaintiff fails to address the implication of his reading of section 11166(k) when viewedin the light of parallel language in section 11166() which provides: A county probation or welfare department shall immediately, or as soon as practicably possible, report by telephone, fax, or electronic transmission to the law enforcement agency having jurisdiction over the case, to the agency given the responsibility for investigation of cases under Section 300 ofthe Welfare and Institutions Code, and to the district attorney's office every knownor suspected instance of child abuse or neglect. Cal. Penal Code § 11166(j). This section, applicable to welfare and probation departments, is nearly identical to section 11166(k). However, unlike section 11166(k), this section does not limit what must be reported to allegations “reportedto it.” Thus, underthis section, welfare and probation departments are required to report to the appropriate law enforcement agency, as well as any agency “given the responsibility for investigation of cases undersection 300 of the Welfare and Institution Code; and the district attorney’s office, every known or suspected instance of child abuse...” /d. Thus, as Plaintiff would haveit, every employee ofthese departments (though eachis also a mandated reporter), is nonetheless required, on behalf of their respective departments only, to immediately report every allegation of abuse or neglect ofwhich that employee is aware, regardless of the source ofthe allegation or whetherit is even credible onits face. 42 This construction of section 11166(k) (and presumably § 11166(j)), even if theoretically possible, renders the central reporting provision ofthe Act (§ 11166(a)) meaningless. Section 11166(a) providesthat, “...a mandated reporter [every employee of every agency referenced in § 11166(k) and § 11166(j)] shall make a report to an agency specified in § 11165.9 [police or sheriff's department, county probation department, or the county welfare department] wheneverthe mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledgeof or observes a child who a mandated reporter knows or reasonably suspects has been the victim of child abuse and neglect.” If Plaintiffs construction of the Act is correct, then substantial revisions to this, and virtually all of the key reporting requirements in the Act would be required. Rewriting the Act is, however, not the province ofthe courts. In the construction of a statute, the office of the judge is simply to ascertain and declare what the text chosen by Legislature means, “not to insert what has been omitted, or to omit what has beeninserted. . ..” Cal. Civ. Proc. Code § 1858. The judicial role in a democratic society is fundamentally to interpret laws, not to write them, as the function of a court is to declare the law and not to makeit. Stop Youth Addiction, Inc.v. Lucky Stores, Inc. (1998) 17 Cal. 4th 553, 578; Treppa v. Justice's Court ofNo. Three Tp., Lake County (1934) 1 Cal. App. 2d 374, 377. Thus, underthe guise of construction a court should not rewrite the law (Drouet v. Superior Court (2003) 31 Cal. 4th 583, 593), add toit what has been omitted (People v. Harper (2003) 109 Cal. App. 4th 43 520, 524), or insert qualifying provisions not included (Maresv. Baughman(2001) 92 Cal. App. 4th 672, 677), omit from it what has been inserted (County ofSanta Barbara v. Connell (1999) 72 Cal. App. 4th 175, 180), give it an effect beyond that gathered from the plain and direct import ofthe terms used (Estate of Tkachuk (1977) 73 Cal. App. 3d 14, 18), or read into it an exception, qualification, or modification that will nullify a clear provision or materially affectits operation (Realmuto v. Gagnard (2003) 110 Cal. App. 4th 193, 203) so as to make it conform to a presumed intention not expressed (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal. 4th 553, 573) or otherwise apparent in the law (Bruce v. Gregory (1967) 65 Cal. 2d 666, 674). In short, courts are called upon to construestatutes as they have been enacted. Topa Ins. Co. v. Fireman's FundIns. Companies (1995) 39 Cal. App. 4th 1331, 1341. Plaintiff's construction of section 11166(k), and presumably also section 11166(j), would require substantial revisions of every key reporting feature ofCANRA -— i.e. who is mandated to report, whatis required to be reported, when reports must be made and where the reports are to be submitted as follows: 1. Whois mandatedto report: Plaintiff urges that section 11166(k) (and by inference, § 11166(j)), apply only to departments, not the employees ofthe departments. Those entities alone, must cross-report any report of suspected abuse in disregard of section 11166(a). However, since an agency can only act through its employees, all of whom are mandated reporters, the following revisions would be necessary to support Plaintiff's interpretation of sections 11166(j) and (k): 44 11165.7. (a) As usedin thisarticle, "mandated reporter" is defined as any ofthe following: KKK (13) A public assistance worker [Except a public assistance worker employed by a welfare department who pursuantto §11166(j), is reporting a non-mandated report received from any person on behalf of the welfare departmentonly]. ka (15) A social worker, probation officer, or parole officer [Except a social worker or probation officer employed by a welfare or probation department who pursuant to § 11166(j), is reporting a non-mandated report received from any person on behalf of the welfare or probation departmentonly]. ka (19) A peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, who is not otherwise described in this section [Except a peaceofficer employed by a law enforcement agency who pursuantto § 11166(k), is reporting a non-mandated report received from any person on behalf of the agency only]. KKK (34) An employee of any police department, county sheriffs department, county probation department, or county welfare 45 department [Except an employee of any police, county sheriff's, county probation, or county welfare department who pursuant to § 11166(j) or § 11166(k),is reporting a non-mandated report received from any person on behalf of the departmentonly]. 2. Whatmust be reported: Whatinformation must be contained in reports pursuant to section 11166 (which includes sub-sections 11166(a); 11166(j) and 11166(k)) would likewise require substantial revision to accommodate Plaintiff's construction. Thus, section 11167 of the statute in pertinent part, would, at a minimum,needto be revised as follows: 11167. (a) Reports of suspected child abuse or neglect pursuant to Section 11166 or Section 11166.05 shall include the name, business address, and telephone number of the mandated reporter; the capacity that makes the person a mandated reporter; and the information that gaverise to the reasonable suspicion of child abuse or neglect and the source or sources ofthat information. [Except non-mandatedreports received by any employee ofany agency specified in section 11165.9 when such reports are reported to the agencies specified in § 11166(j) or § 11166(k) on behalfofthe departmentonly}. 3. Whenreporting is mandatory: The overarching theme ofthe reporting system — the triggering events for reporting suspected abuse —requires substantial change,if not elimination entirely, to accommodate Plaintiffs construction. 46 Section 11166(a) quite clearly only triggers reporting when a mandated reporter knowsof, or reasonably suspects, abuse or neglect, as defined in the Act. Plaintiff however argues that some agencies, despite employing only mandated reporters, have no credibility threshold before the agency must cross-report allegations of abuse to various other governmental agencies. The following revision to section 11166(a) is required to accommodate this construction: 11166. (a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 wheneverthe mandated reporter, in his or her professional capacity or within the scope ofhis or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. [This provision does not apply to a mandated reporter employed by a county probation department, a county welfare department or any law enforcement agency when such employee is cross-reporting a non- mandatedreport which was receivedfrom any person on behalfofa department or agency only pursuant to § 11166() or § 11166(k). Such report shall contain only the contents ofthe non-mandatedreport and be reported to the law enforcement agency havingjurisdiction overthe case, to the agency given the responsibilityfor investigation ofcases under Section 300 of the Welfare andInstitution Code, and to the District Attorney’s office even ifabuse or neglect is not known or suspected by the reporting employee ofsuch department or agency... | 47 4. Where reports must be made: Andfinally, Plaintiff urges that the immediate reporting of non- mandatedreports received by a sheriff's department must be reported to the welfare department. (Plaintiff's Opening Brief, 29). This reading, however, is more limited than is presently called for in section 11666(k) which requires reporting not just to the county welfare department, but also to the District Attorney’s office. Similarly, pursuant to the parallel provision, section 11166(j), reports from the probation or welfare departments are to be directed to the law enforcement agency with jurisdiction, any other agency given responsibility for investigation of cases under section 300 ofthe Welfare and Institution Code, and to the district attorney’s office. Plaintiff, however, ignores the language in section 11166(k), and the entirety of section 11166(j), and argues that law enforcement agencies are uniquely required to reflexively report to the welfare department. (Plaintiff's Opening Brief, 28)(“...it is mandatory thatall reports received by law enforcementbe cross-reported to a county’s welfare agency...”) As demonstrated above, every important feature ofthe reporting system laid out in CANRA regarding the who, what, when and where of reporting is placed in complete disarray underPlaintiffs proffered interpretation of section 11166(k). This explains the absence of any published judicial support for this construction of the Act. In addition, the Act emphasizes that it is directed to “individuals,” persons able to bring their individual skills, training and expertise to bear on often confusing factual situations, and “in his or 48 her professional capacity,” make an informed assessment of the situation. Cal. Penal Code § 11166(i)(1) (“the reporting duties under this section [§ 11166] are individual...”); Cal. Penal Code § 11166(h) (“when two or more persons, who are required to report...); Cal. Penal Code § 11165(35)(mandated reporters are “employee[s] of any police department...”). As Plaintiff has pointed out, an inanimate police departmentis incapable of action, thought, judgment or suspicion of abuse. An inanimate police entity is also not punishable in the penal code and cannot breach a duty. See Karst v. Vickers (N.D. 1989) 444 N.W.2d 698, 700 ("An inanimate object can neither havenor breach a duty of care."); Lippman v. City ofMiami(S.D.Fla. 2010) 724 F.Supp.2d 1240, 1259-1260 ("Plaintiff has provided no authority for extending [case law] to include a duty of care to inanimate objects."). The inescapablereality is that an agency of government— be it law enforcement, welfare or probation — can only take action, any action, through the efforts of employees on the job, in the course and scope of their employment. Finally, this is a Penal Code statute and, as such,carries the threat of severe criminal penalties — imprisonment and monetary fines for violations. Perhaps recognizing this, Plaintiff makes the point that inanimate agencies such as sheriff's departments are not listed as mandatedreporters in section 11165.7, and thus are presumably under no threat of criminal prosecution (assuming criminal prosecution of a governmental agency were even possible). (See e.g. Plaintiff's OpeningBrief, 48, 50). However, every employee ofthose departments is a mandated reporter, and criminal sanctions are most certainly applicable to them. 49 § 11166(c) provides in part: (c) Any mandated reporter whofails to report an incident of knownor reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jailor by a fine of one thousand dollars ($1,000) or by both that imprisonmentandfine. (] For example, in this case the 9-1-1 operator, the sheriffs designated point ofinitial contact for incomingcalls from anyone, including the Kinney call, was a mandated reporter. With this in mind, even though that 9-1-1 call by Kinney was not a mandated report, under Plaintiff's construction of section 11166(k), that 9-1-1 operator would be underthreat ofprosecution for not reporting Kinney’s call on behalf of the Sheriff's Department. That operatoris a mandated reporter and she “...fail[ed] to report...as required by this section...” Thus, to accommodate Plaintiff's construction of section 11166(k), and to avoid this absurd result, a substantial modification of section 11166(c) is also necessary: (c) Any mandated reporter who fails to report an incident ofknown or reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jailor by a fine of one thousand dollars ($1,000) or by both that imprisonment andfine. [Except any employee ofa county probation © These penalties are substantially increased if serious bodily injury or death result from the breach. 50 department, a county welfare department, or any law enforcement agency who pursuant to §11166(j) or § 11166(k), is required to report a non-mandated report on behalfofsuch department or agency only ...| The legislative history contains telling testimony dealing with the issue of indiscriminate reporting regardless of knowledge or suspicion. The testimony of Michael Gates, Deputy Attorney General for the State of California Office of Attorney General (sponsor and authorofthe bill), given at the hearing before the Assembly Committee on Criminal Justice when the bill was being debated,is further evidence that the Plaintiff's interpretation of section 11166(k) is wrong: MR. GATES:Okay, let me explain this. If in fact it is determined on thespot, if you get a report by a neighborandthe police respond or the welfare respondsand they find out that the report wastotally erroneous and that there was a satisfactory explanation for the noises they heard, or whatever, and there is no child abuse there,it is apparent then that you are not going to haveit reported. That’s what it says. In other words,if it could be determined immediately that it is unfounded, they won’t report, but if they can’t determine it immediately and thereis further investigation, then you report it and youget a status report follow-up and then purge the file accordingly. (MIN, Exh. “1,” Assem. Com. On Criminal Justice, Public Hearing on Child Abuse Reporting, November 21, 1978, Senate Bill 781, Chapter 5] 1071, Statutes of 1980 (1977-1980 Reg.Sess.), testimony ofDeputy Attorney General Michael Gates, pp. 38)(Emphasis added). The Deputy Attorney General described the very situation faced here by the Sheriff's Department. The testimony by Mr. Gates clearly contemplates that an investigation and discretionary assessment of the situation must occur before reporting. Otherwise, there could be no “determination” that a report was “totally erroneous”or had a “satisfactory explanation,” or “whatever.” Jd. Thus, at least in the Attorney General’s view, a report is not always required where the allegations are disbelieved. Notonly is Plaintiff's view of the reporting requirements inconsistent with CANRA,butas a practical matter, it would entail reporting back and forth to governmental agencies and prosecutors of any and every suggestion of child abuse heard by any employee of any police, welfare, or probation department. A simple phonecall from any source whatsoeverto any police department employee would, without more, trigger immediate reporting throughout the entire system (welfare, probation,district attorney), with all of the intrusive consequencesthat necessarily follow an allegation of child abuse or neglect: listing in governmental records, intrusive investigations, and further chaos in the family. As the Court of Appeal properly observed, “Sheriff's Departments are receivers of reports of abuse — not reporters of abuse.” (Opn., 14); Jacqueline T. v. Alameda Cnty. Child Protective Servs., 155 Cal. App. 4th 456, 473 (2007) (“County [was the] alleged receiver[] ofthree reports of alleged child abuse from third parties rather than the reporters 52 themselves.”) “As such, they could not have breached a mandatory duty to report (or cross-report).” (Opn., 14). The interpretation advanced by Plaintiff is also fatally confusing as it makes employees ofthe sheriff, welfare and probation departments simultaneously both mandated reporters and non- mandatedreporters(i.e. “any other persons”). According to the Plaintiff, at 10:14:22 p.m. when Kinneycalled the Sheriffs dispatch — then and there — that dispatch operator (a mandated reporter) whois compelled to sign a statement assuring that she understands and will comply with her duty to report under section 11166, must nevertheless ignore the “knownor suspected”threshold for reporting (in section 11166(a)) which specifically applies to her, and indiscriminately cross-report whatever Kinneysaid in the call. Plaintiff's construction of section 11166(k) would requirestill additional reconciliations i.e. rewrites. For example, CANRA requires that every employer of any mandated reporter create a statementto be signed by eachof its mandated reporter employees attesting that each employee “has knowledge ofthe provisions of § 11166 and will comply with those provisions.” Cal. Penal Code § 11166.5(a)(1). This section, however, would therefore require a substantial exception if Plaintiffs interpretation was correct because those employees in any agency referenced in section 11166()) or (k) would also have the duty to report any allegation of abuse without regard to section 11166(a). Similarly, sections 11166(f) and (g) which provide that a mandated reporter acting in his or her “private capacity and notin his or her professional capacity or within the scope ofhis or her 53 employment”is “any other person” under the Act and therefore may, but is not mandated to report even knownor suspected abuse. These paragraphs too would require a rewrite to acknowledgethat all employeesin the agencies identified in sections 11166() and (k), even whenacting within the course and scope of their employment must nevertheless report every non-mandatedallegation of child abuse regardless of section 11166(a). The correct reading of section 11166(k) harmonizesit with both sections 11166(a), and 11167, and avoids the disruptive caveats required to be inferred in the other sections discussed above. Thus, in Defendants’ (and the Court of Appeal’s) view, section 11166(k) requires that every mandatedreport i.e. “knownor suspected report of abuse reportedto it” be reported out to the other agencies. Sucha construction harmonizes the reporting features of who, what, when and wherereports are required, and requires no inferential reconciliations ofthe Act. Finally, Plaintiff's interpretation of the Act is also not supported when viewed in conjunction with the California Statewide Child Welfare Services Manual, the Manual of Policies and Procedure as promulgated by the California Department of Social Services.’” While there is no question that the Act outlines reporting duties to and betweenchild protection agencies, there is also no question that scarce resources are involved. Thus, under Chapter 31-105.116, a child welfare agency is authorized to “evaluate out” a referral, and make no 17 The Child Welfare Services Manualcan be accessedonline at: http://www.dss.cahwnet.gov/ord/PG309.htm. 54 cross-report to any other agency. In other words, a child welfare agencyis not obligated to make blanket nondiscretionary reports of all child abuse allegations to law enforcement and other agencies. Welfare and Institutions Code § 16501(f), cited by Plaintiff, whichrequires that a child welfare agency "respond to any report of imminent dangerto a child immediately and all other reports within 10 calendar days," is not inconsistent with the Social Services' Manual of Policies and Procedure, Chapter 31-105.116. A child welfare agency's ability to "evaluate out" a referral "with no referral to another community agency" does not meanthat the agency does no investigation. Manual of Policies and Procedure, Chapter 31-105.116. Rather, the decision by the welfare agency to "evaluate out, with no referral to another community agency" must be supported by "rationale for the decision." Jd.; Chapter 31-105.117. An investigation, therefore, is indeed contemplated by the agency worker prior to any determination that an allegation of abuse waseither unfounded, inconclusive or somehowresolved suchthat the agency can "evaluate out" the referral without cross-reporting to any other agency. /// /// /// 55 IV. CONCLUSION Based uponthe foregoing authorities and arguments, Defendants respectfully request that the Court affirm the Court of Appeal’s judgment. DATED: February 13, 2014 NORMANJ. WATKINS S. FRANK HARRELL SHANNON L. GUSTAFSON PANCYLIN MISA Attorneys for Defendants/Respondents COUNTY OF SAN BERNARDINO; SERGEANT JEFFREY BOHNER, DEPUTY KIMBERLY SWANSON, and CITY OF YUCAIPA 56 CERTIFICATE OF WORD COUNT (CAL. RULES OF COURT, RULE8.204(c)(1)) The text of this brief consists of 13,930 words as counted by the Microsoft Office Word 2010 version word-processing program used to generate this brief. DATED:February 13, 2014 LYNBERG & WATKINS A Professional NORMANJ. WATKINS S. FRANK HARRELL SHANNON L. GUSTAFSON PANCY LIN MISA Attorneys for Defendants/Respondents COUNTY OF SAN BERNARDINO; SERGEANT JEFFREY BOHNER, DEPUTY KIMBERLY SWANSON, and CITY OF YUCAIPA PROOFOF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of eighteen and nota party to the within action; my business is 1100 Town & Country Road, Suite 1450, Orange, California 92868, (714) 937-1010. On February 13, 2014, I served the foregoing document described as (CORRECTED) RESPONDENTS’BRIEFonthe interested parties by placing a true copy thereof enclosed in sealed envelopes addressed as follows: Christopher J. Keane, Esq. THE KEANE LAW FIRM,P.C. 548 Market Street, Suite 23851 San Francisco, CA 94104 (Attorneys for Plaintiff Brayden Hanson, a minor, by and through his Guardian ad Litem, Lauri Hanson) Stuart B. Esner, Esq. Andrew N. Chang,Esq. ESNER, CHANG & BOYER 234 East Colorado Boulevard Suite 750 Pasadena, California 91101 (Attorneys for Plaintiff Brayden Hanson, a minor, by and through his Guardian ad Litem, Lauri Hanson) Hon. Donald R. Alvarez San Bernardino County Superior Court 303 West Third Street Dept $32 San Bernardino, CA 92415 Clerk's Office California Supreme Court 350 McAllister Street San Francisco, CA 94102-3600 (8 paper copies) Clerk’s Office California Court of Appeal Fourth Appellate District, Division Two 3389 Twelfth Street Riverside, CA 92501 Hf HM I declare underpenalty ofperjury underthe lawsofthe State of California that the above is true and correct. Executed on February 13, 2014, at Orange, California. CHRISTINE HARRIS AMENDED PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE | I am employed in the County of Orange, State of California. I am overthe age of eighteen and not a party to the within action; my business is 1100 Town & Country Road, Suite 1450, Orange, California 92868, (714) 937-1010. On February 13, 2014, I served the foregoing documentdescribed as ANSWERBRIEF ON THE MERITSontheinterested parties by placing a true copy thereof enclosed in sealed envelopes addressed as follows: Christopher J. Keane, Esq. THE KEANE LAW FIRM,P.C. 548 MarketStreet, Suite 23851 San Francisco, CA 94104 (Attorneys for Plaintiff Brayden Hanson,a minor, by and through his Guardian ad Litem, Lauri Hanson) t Stuart B. Esner, Esq. Andrew N. Chang,Esq. ESNER, CHANG & BOYER 234 East Colorado Boulevard Suite 750 Pasadena, California 91101 (Attorneys for Plaintiff Brayden Hanson, a minor, by and through his Guardian ad Litem, Lauri Hanson) Hon. Donald R. Alvarez San Bernardino County Superior Court 303 West Third Street Dept $32 San Bernardino, CA 92415 Clerk's Office California Supreme Court 350 McAllister Street San Francisco, CA 94102-3600 (1 Electronic submission, 1 original and 8 paper copies) Clerk’s Office California Court ofAppeal Fourth Appellate District, Division Two 3389 Twelfth Street Riverside, CA 92501 /if HI I declare under penalty of perjury underthe lawsofthe State of California that the aboveis true andcorrect. Executedon February 13, 2014, at Orange, California. CHRISTINE HARRIS