Filed 2/3/16 B.H. v. County of San Bernardino CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



B.H., a minor, etc.,

         Plaintiff and Appellant,                                        E054516

v.                                                                       (Super.Ct.No. CIVDS913403)

COUNTY OF SAN BERNARDINO et al.,                                         OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez,

Judge. Affirmed in part; reversed in part.

         The Keane Law Firm, Christopher J. Keane; Esner, Chang & Boyer, Stuart B.

Esner and Andrew N. Chang for Plaintiff and Appellant.

         Lynberg & Watkins, Norman J. Watkins, Shannon L. Gustafson and Pancy Lin

Misa for Defendants and Respondents.

         In September 2008, when B.H. was two years old, his mother, L.H., noticed

bruises on B.H.’s face and body when he returned from visitation with L.S. (father).
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L.H.’s former foster mother1 reported the injuries to the San Bernardino County Sheriff’s

Department. A sheriff’s deputy examined the child, determined there was an ongoing

custody dispute, and concluded there was no need for further investigation. A month

later, B.H. received a devastating head injury while in the care of his father which will

permanently disable him.

       L.H., as guardian ad litem, filed a lawsuit against the County of San Bernardino,

the City of Yucaipa, Deputy Sheriff Kimberly Swanson, and her supervisor, Sergeant Jeff

Bohner,2 for violation of the Child Abuse and Neglect Reporting Act (CANRA), for not

cross-reporting his injuries to the Department of Children and Family Services (DCFS).

The trial court granted summary judgment in favor of the public entities and employees

(the County defendants); plaintiff appealed, and we originally affirmed the summary

judgment in favor of both the San Bernardino County Sheriff’s Department and the

Deputy, holding that there was no independent duty on the part of the sheriff’s

department to cross-report the complaint to DCFS after the deputy had concluded there

was no child abuse.




       1  Mother had no formal foster parent-child relationship with C.K., but referred to
her as her mother, or adoptive mother. C.K. was a friend of mother’s father who “wrote
over custody [of mother] to her,” when mother was 13. For convenience and lack of a
better term, we will refer to C.K. as mother’s former foster mother.

       2 Father was also named in the suit for battery and child abuse, but he was not
involved in the summary judgment motion or this appeal.

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       Plaintiff petitioned for review in the California Supreme Court. The Supreme

Court reversed, holding that the sheriff’s department had a mandatory and ministerial

duty to cross-report the child abuse allegations made to the 911 operator to the child

welfare agency and that the failure to cross-report can support a finding of breach of a

mandatory duty, elements required to establish public entity liability pursuant to Penal

Code section 11166, subdivision (k). The Supreme Court further concluded the officer

had no duty to report the child abuse allegations and her investigative finding to the child

welfare agency under Penal Code section 11166, subdivision (a). (B.H. v. County of San

Bernardino (2015) 62 Cal.4th 168, 175.)

                                     BACKGROUND

       Plaintiff’s complaint asserts two causes of action against the county defendants,

and two causes of action against father, whose actions directly caused plaintiff’s injuries.

Our review is limited to those causes of action involving the liability of the county

defendants, which were the subject of the summary judgment motion.

       Plaintiff, B.H., was born in August 2006, and lived with his mother, L.H., in the

home of L.H.’s former foster mother. In 2008, by an informal agreement, father had

custody of plaintiff every weekend. On July 2, 2008, father reported to the County of

San Bernardino Sheriff’s Department that plaintiff arrived for a visit with unexplained

bruises on his neck. A sheriff’s deputy investigated the incident and determined the

allegations were inconclusive. When the mother learned of this report the next morning,

July 3, 2008, she contacted DCFS and informed the intake operator that her son had been

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abused by an unknown person. Mother also informed DCFS that father refused to return

custody of plaintiff to her and that she was pursuing an ex parte order to regain custody.

       On July 9, 2008, a DCFS social worker responded to mother’s July 3d report,

interviewing mother at her residence, and visiting father at his. The social worker

facilitated a meeting between mother, father, and B.H. on July 22, 2008. At that meeting,

the parents agreed that father would relinquish B.H. to mother that day, and then resume

his regular weekend visits until a further court hearing, which was scheduled for August

6, 2008. The social worker concluded that the situation was a custody battle and the

allegations of physical abuse were unfounded.

       On September 17, 2008, a formal court order was made, providing that father

would have custody every weekend, plus one two-hour visit midweek. On September 22,

2008, mother picked up plaintiff from a visit with his father and noticed bruises on his

face. When mother got home, she talked to her former foster mother and they took

pictures of the bruises on B.H. Then mother left to go to an evening class, and after class,

she went to a party until 2:30 or 3:00 a.m. Mother suspected child abuse, but wanted to

speak with father before making any report.

       While mother was out, the former foster mother contacted the sheriff’s department

and reported that plaintiff had come home from a visit with his father with bruises on his

forehead. The dispatcher asked if the child required medical attention, but the former

foster mother declined because the child had a doctor’s appointment the next day. The



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former foster mother informed the dispatcher that she was making the report because she

was instructed to do so.

       Sheriff’s Deputy Kimberly Swanson responded to the residence while mother was

gone and plaintiff was in the care of mother’s former foster mother. When Deputy

Swanson arrived, plaintiff was asleep, so the former foster mother woke him and brought

him to the deputy to observe. Deputy Swanson examined plaintiff’s head, face, upper

body, and arms. Deputy Swanson observed that plaintiff had a scratch and bruising near

his right eye and temple, and a small older bruise on his right arm, which possibly

occurred during a fall. Deputy Swanson did not see any bruises on the child’s forehead

or torso when she examined him.

       Deputy Swanson went out to her patrol vehicle and ran a computer record check

on the parents. In the meantime, the former foster mother had put plaintiff back to bed.

When Deputy Swanson returned to the house, she left her card with mother’s former

foster mother and requested that plaintiff’s mother call her when she returned home.

       Deputy Swanson filled out a report in which she recounted that father had

informed the former foster mother that plaintiff had fallen and bumped his head while at

Wienerschnitzel. The report concluded that there was an ongoing custody dispute

between the parents, that the former foster mother requested documentation of the

incident and that the case was “for information only at this time and forward to station

files.” Deputy Swanson left a card for mother to contact her when she returned home, but



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mother never did. The deputy cleared the case, and her report was reviewed and

approved by her supervisor, Sergeant Jeff Bohner.

          After September 22, 2008, mother did not allow plaintiff to visit with his father.

However, on October 11, 2008, mother allowed a visit. On October 18, 2008, father

called his live-in girlfriend at work to report that plaintiff had fallen, hit his head, and

would not wake up. Father’s girlfriend rushed home. When she got home, the girlfriend

noticed plaintiff was stiff and asked the father whether he had called the mother or 911

yet. Father then called 911, and subsequently the girlfriend called mother to report the

injury.

          Emergency personnel responded to father’s residence and transported plaintiff to

Loma Linda University Hospital where plaintiff was treated for severe head trauma.

Plaintiff suffered seizures and was still unconscious upon arrival at the hospital, where a

craniectomy was performed, removing a portion of the child’s skull to relieve pressure in

the brain from swelling. Plaintiff suffered subdural hematoma, cerebral edema, and

subfalcine herniation3 caused by intracranial pressure. A consulting forensic pediatrician

determined that the injuries were inflicted, the result of child abuse. The pediatrician




          3
          Subfalcine herniation is the most common cerebral herniation pattern,
characterized by displacement of the brain beneath the free edge of the falx cerebri due to
raised intracranial pressure. (http://radiopaedia.org/articles/subfalcine_herniation [as of
5/1/2013]; Laine, Shedden, Dunn, Ghatak, Acquired Intracranial Herniations: MR
Imaging Findings, 165 Amer. Journal of Roentgenology 967 (1995).)

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concluded that father’s explanation that the child was knocked backwards from a

standing position onto a carpeted floor by a 16-month old half-sibling was not credible.

       On September 11, 2009, plaintiff, through mother, as his guardian ad litem, filed a

complaint against the County of San Bernardino, the City of Yucaipa, Deputy Swanson,

Sergeant Bohner, and father. The causes of action against the county, city, and sheriff’s

department personnel alleged breach of mandatory duty to report child abuse, pursuant to

Government Code section 815.6 (first cause of action), and negligence, under theories of

res ipsa loquitur and negligence per se, pursuant to Government Code section 815.2

(second cause of action).

       Defendant made a general appearance by way of answer and general denial on

November 20, 2009, asserting several affirmative defenses, including governmental

immunities. On November 10, 2010, defendant filed a motion for summary judgment.

The motion was heard on May 12, 2011, and the court orally ruled in favor of granting

the motion. A formal order granting the motion was filed on July 14, 2011. On August

11, 2011, judgment was entered in favor of defendants County of San Bernardino, City of

Yucaipa, Sergeant Jeff Bohner, and Deputy Kimberly Swanson. On September 8, 2011,

plaintiff timely appealed.

                                      DISCUSSION

   Plaintiff argues on appeal that there were triable issues of fact as to whether

defendants’ failure to cross-report the child abuse report of September 22, 2008, violated

their mandatory reporting duties under CANRA, precluding entry of summary judgment.

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As such, plaintiff asserts the trial court erroneously concluded defendants were immune

from liability. With the benefit of the Supreme Court’s guidance, as to the defendant San

Bernardino County Sheriff’s Department, we agree and reverse. As to the individual

deputy, we affirm the order granting summary judgment.

   a. Standard of Review

       Summary judgment is properly granted when there are no triable issues of material

fact and the moving party is entitled to judgment as a matter of law. (Conroy v. Regents

of University of California (2009) 45 Cal.4th 1244, 1250; Code Civ. Proc., § 437c, subds.

(b), (o).) A defendant meets his burden of showing that a cause of action lacks merit if he

shows that one or more elements of the cause of action cannot be established, or that

there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd.

(p)(2); Ortega v. Sacramento County Dept. of Health & Human Services (2008) 161

Cal.App.4th 713, 716.) The purpose of a motion for summary judgment is to discover

whether the parties possess evidence which requires the fact-weighing procedures of a

trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492, 496, quoting City of

Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.)

       We review the trial court’s decision de novo, considering all of the evidence the

parties offered in connection with the motion (except that which the court properly

excluded) and the uncontradicted inferences the evidence reasonably supports. (Merrill

v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, citing Artiglio v. Corning Inc. (1998) 18

Cal.4th 604, 612.) Because we review independently, or de novo, the trial court’s stated

                                            8
reasons for granting summary judgment are not binding on us; we review the ruling, not

the rationale. (Soto v. County of Riverside, supra, 162 Cal.App.4th at p. 496; Kids’

Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

   b. The San Bernardino County Sheriff’s Department Had a Mandatory Duty to

       Cross-Report under Section 11166, Subdivision (k).

       Penal Code section 11166, subdivision (a), requires a mandated reporter to make a

report to a police department or sheriff’s department, among other agencies, “whenever

the mandated reporter, in his or her professional capacity or within the scope of his or her

employment, has knowledge of or observes a child whom the mandated reporter knows

or reasonably suspects has been the victim of child abuse or neglect.”

       A mandated reporter has “reasonable suspicion” within the meaning of the act,

when it is objectively reasonable for a person to entertain a suspicion, based upon facts

that could cause a reasonable person in a like position, drawing, when appropriate, on his

or her training and experience, to suspect child abuse or neglect. (Pen. Code, § 11166,

subd. (a)(1).) Penal Code section 11165.9 provides that reports of suspected child abuse

or neglect shall be made by mandated reporters to any police department or sheriff’s

department. Peace officers and social workers are mandated reporters. (Pen. Code,

§ 11165.7, subds. (a)(15), (19).)

       In addition, law enforcement agencies “shall” cross-report to the county welfare or

probation department “every known or suspected instance of child abuse or neglect

reported to it which is alleged to have occurred as a result of the action of a person

                                              9
responsible for the child’s welfare.” (Pen. Code, § 11166, subd. (k).) Reciprocal duties

of cross-reporting to law enforcement agencies are imposed on the county welfare or

probation department. (Pen. Code, § 11166, subd. (j); B.H. v. County of San Bernardino,

supra, 62 Cal.4th at p. 178.) Plaintiff argues that Penal Code section 11166, subdivision

(k), imposed on the Sheriff’s Department an independent and mandatory duty to inform

the child welfare agency of the initial 911 report, separate and apart from Deputy

Swanson’s duty to investigate and cross-report. We agree.

       Government Code section 815.6 provides that where a public entity is under a

mandatory duty, it is liable for an injury caused by his failure to discharge the duty unless

it establishes it exercised reasonable diligence to discharge the duty. Government Code

section 815.6’s liability for breach of a mandatory duty applies to ministerial duties

imposed by statutes and regulations. (Ortega v. Sacramento County Dept. of Health &

Human Svcs., supra, 161 Cal.App.4th at p. 728; see also, Scott v. County of Los Angeles

(1994) 27 Cal.App.4th 125, 141.) To prove a violation under Government Code section

815.6, the plaintiff must plead the existence of a specific statutory duty. (Jacqueline T. v.

Alameda County Child Protective Svcs. (2007) 155 Cal.App.4th 456, 471.)

       In order to find liability under Government Code section 815.6, the plaintiff must

establish, as an element of the cause of action, that the enactment at issue be obligatory,

rather than merely discretionary or permissive, in its directions to the public entity; it

must require, rather than merely authorize or permit, that a particular action be taken or

not taken. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.)

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       In examining the language of Penal Code section 11166, subdivision (k), the

California Supreme Court concluded the statute imposes an obligatory duty, and not

merely a discretionary or permissive authorization, upon law enforcement agencies to

cross-report the child abuse or neglect reports that it receives. (B.H. v. County of San

Bernardino, supra, 62 Cal.4th at p. 181.) The Supreme Court reasoned that the purpose

of CANRA, of which Penal Code section 11166, subdivision (k) is a part, is to protect

children from abuse and neglect and that the cross-reporting provisions were designed to

foster cooperation between child protective agencies and other persons required to report.

(B. H. v. County of San Bernardino, supra, at pp. 182-183.) It concluded that the

statutory provisions reflect the Legislature’s intent that the various law enforcement and

child welfare agencies immediately communicate to each other information received on

alleged child abuse or neglect so that they may in turn coordinate their investigative

procedures.4 (Id., at p. 185, citing Pen. Code, § 11166.3, subd. (a); Cal. Code Regs. Tit

11, § 900.) Because Penal Code section 11166, subdivision (k) creates a separate,

independent and mandatory duty to cross-report, the violation of which creates a separate

basis of liability under Government Code section 815.6, we reverse the order granting

summary judgment as to the County of San Bernardino and remand the matter to the trial

court for further proceedings.



       4The Supreme Court also disapproved of the holding of Alejo v. City of Alhambra
(1999) 75 Cal.App.4th 1180, to the extent it is inconsistent with its holding.

                                             11
       c.     Deputy Swanson Did Not Have a Duty to File a Report of Suspected

              Abuse Pursuant to Penal Code Section 11166, Subdivision (a).

       In our original opinion, we held that under Penal Code section 11166, subdivision

(a), Deputy Swanson may have had a mandatory duty to investigate Kinney’s report of

child abuse, but that because her investigatory findings were subject to her discretion, her

decision not to cross-report was immune from liability. The California Supreme Court,

however, held that although our conclusion was correct, our premise was wrong, insofar

as it held that Penal Code section 11166, subdivision (a) does not require a law

enforcement officer conducting an investigation of an initial report of child abuse that has

been received by an agency to make additional reports about the same incident. (B.H. v.

County of San Bernardino, supra, 62 Cal.4th at p. 186.)

       The Supreme Court reasoned that in regard to investigating whether child abuse or

neglect has occurred, the assessment of mandated reporters and the agencies that receive

those child abuse reports are not the same and are governed by different standards. (B.H.

v. County of San Bernardino, supra, 62 Cal.4th at p. 189.) It held that Deputy Swanson’s

findings, observations, and duties regarding the investigation of the reported incident of

abuse were not governed by Penal Code section 11166, subdivision (a), but were instead

governed by CANRA’s provisions setting forth various obligations and procedures

related to investigations. (B.H. v. County of San Bernardino, supra, at p. 189.)

       The Supreme Court went on to explain that law enforcement agencies, in addition

to their mandatory duty to cross-report, will investigate reported incidences pursuant to

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their “existing duties.” (B.H. v. County of San Bernardino, supra, 62 Cal.4th at p. 190,

citing Pen. Code, § 11166.3, subd. (a); Planned Parenthood Affiliates v. Van de Kamp

(1986) 181 Cal.App.3d 245, 259.) It then concluded that decisions of child welfare

agency employees regarding determinations of child abuse are subjective discretionary

ones that are incidental to the employees’ investigations. (B.H. v. County of San

Bernardino, supra, at pp. 191-192, and cases cited therein, italics added.) In the context

of investigations, a sheriff’s department is considered a child protective agency

designated to accept reports of abuse (Pen. Code, § 11165.9) and to investigate them.

(Pen. Code, § 11166.3, subd. (a); B.H. v. County of San Bernardino, supra, at p. 191.)

       Government Code section 820.2 provides for immunity to a public employee for

an injury resulting from his act or omission where the act or omission was the result of

the exercise of the discretion vested in him, whether or not that discretion was abused.

The Supreme Court concluded that because Deputy Swanson did not have a mandatory

duty to report under Penal Code section 11166, subdivision (a), she is not directly liable

under the statutory provisions, and the county defendants are not derivatively liable under

Government Code section 815.2, subdivision (a). (B.H. v. County of San Bernardino,

supra, 62 Cal.4th at pp. 197-198; see also Jacqueline T. v. Alameda County Child

Protective Services, supra, 155 Cal.App.4th at pp. 468-469.)

       Summary judgment was properly granted as to Deputy Swanson.




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                                       DISPOSITION

      The judgment is reversed as to the San Bernardino County Sheriff’s Department,

and affirmed as to Deputy Swanson. The parties will bear their own costs on appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                            RAMIREZ
                                                                                      P. J.

We concur:


McKINSTER
                         J.


MILLER
                         J.




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