Garcia v. Superior Court

789 P.2d 960, 50 Cal. 3d 728, 268 Cal. Rptr. 779, 1990 Cal. LEXIS 1843

• Court: California Supreme Court
• Decided: May 3, 1990
• Docket: S004813
• Status: Published

Opinions

Opinion

PANELLI, J.

Napoleon Johnson, Jr., a convicted murderer on parole, kidnapped and killed Grace Morales. Plaintiffs, the victim’s children, have sued the State of California (State) and Johnson’s parole officer for wrongful death and violation of the Civil Rights Act of 1871. (42 U.S.C. § 1983.) In their first amended complaint, plaintiffs alleged that the parole officer, Michael Ybarra, knew that Johnson had threatened to kill Morales but nevertheless told her that the parolee would “not come looking” for her. The superior court sustained demurrers by Ybarra and the State without leave to amend.¹ The Court of Appeal denied plaintiffs’ petition for a writ of mandate. We affirm the Court of Appeal’s holding that plaintiffs have not stated a cause of action and the dismissal of plaintiffs’ purported cause of action under the Civil Rights Act. However, we hold that plaintiffs should have leave to amend to allege a cause of action for negligent misrepresentation involving a risk of physical harm.

I. Facts

Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. Accordingly, we assume that the complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 702 [263 Cal.Rptr. 119, 780 P.2d 349]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) For these purposes we briefly summarize the complaint’s pertinent allegations.

According to the first amended complaint, Johnson went to prison in 1974 for the murder of his wife. In August 1985, when he was released on parole, Ybarra became his parole agent. While on parole, Johnson “began a romantic relationship and cohabited with” Morales. In March 1986, when Morales moved out of Johnson’s home, he “began a campaign of violence, intimidation and harassment directed at [her], which included attempted stabbings, repeated death threats at knife point, forced sexual relationships at knife point and false imprisonment.”

When Ybarra learned that Johnson had threatened Morales’s life, the parole officer met with Morales “in the presence of Johnson to inquire regarding the alleged threats.” Johnson denied the threats, and Ybarra initially “concluded that the threats had not been made.” But Johnson repeated his threats about a week later, telling Ybarra that “he was looking for [Morales]” and that “[he would] kill her if [he] found her.” At this point, Ybarra concluded that Johnson was dangerous and placed him in 72 hours’ custody for psychiatric observation. Upon Johnson’s release, Ybarra “instructed [him] to engage in [further,] intensive treatment with the parole department’s staff psychologist.”

While Johnson was undergoing psychiatric treatment, an attorney who was representing Morales in a child custody proceeding attempted to obtain information from Ybarra about Johnson’s prior murder conviction. The attorney told Ybarra “that she was applying for a temporary restraining order.” Ybarra “refused to tell [the attorney] the nature of the crime,Pi but advised her that the crime committed was not of the type which would indicate that Johnson represented a danger to [Morales’s] children.” However, Ybarra “was still of the opinion that Johnson was very jealous and potentially violent,” and he told Morales’s attorney that he would serve the temporary restraining order and arrest Johnson.

Later, however, Ybarra apparently changed his mind. At some point “he telephoned decedent in an attempt to reconcile the relationship [s/c] between Johnson and [Morales].” The subject of the telephone conversation was death threats. Morales told Ybarra what she feared: “Johnson knew where [she] was living” and “still intended to physically harm her.” However, Ybarra told Morales: “I don’t think you have anything to worry about. He’s not going to come looking for you.”^{2 3} “Ybarra further assured [Morales] of her safety by emphasizing to her that Johnson had told him that he was still in love with [Morales], and repeatedly asking her if she really wanted to end the relationship.”

Plaintiffs do not allege, however, that Morales believed Ybarra or actually and reasonably relied on his assurances. Instead, plaintiffs conclude their pleading with this general allegation of causation: “As a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson.” Subsequently, “Johnson kidnapped and shot [her].”

II. Discussion

A. The State Law Claim

In their first amended complaint, plaintiff's have labelled their claim under state law simply one for “wrongful death.” The Court of Appeal held that plaintiff's had not stated a cause of action because their allegations did not establish that Ybarra occupied a “special relationship” with either Johnson or Morales. (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 433-435 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) However, the court’s search for a special relationship was unnecessary. A special relationship is a prerequisite for liability based on a defendant’s failure to act. (See Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435; see also Rest.2d Torts (1965) § 315.) In contrast, plaintiff’s in this case assert that Ybarra is liable because his allegedly negligent representations about Morales’s physical safety induced her to be less careful.⁴ Accordingly, it is unnecessary to look beyond the ordinary rules that determine when misrepresentations are actionable.

Negligent misrepresentations involving a risk of physical harm are actionable under the circumstances described in the Restatement Second of Torts, supra, section 311. Under that section, “(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results [fl] (a) to the other . . . . [fl] (2) Such negligence may consist of failure to exercise reasonable care [fl] (a) in ascertaining the accuracy of the information, or [H] (b) in the manner in which it is communicated.” California courts, in holding that plaintiff's have stated causes of action for negligent misrepresentations causing physical harm, have relied both on section 311 (Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680, 683-688 [81 Cal.Rptr. 519, 39 A.L.R.3d 173]) and on Civil Code section 1710, subdivision 2 (Barbara A. v. John G. (1983) 145 [193 Cal.Rptr. 422]).⁵ Scholars have also recognized the theory. (Prosser & Keeton on Torts (5th ed. 1984) ch. 5, § 33, at pp. 205, fn. 26, & 205-208.)

Accordingly, we examine whether plaintiffs have stated a cause of action for negligent misrepresentation involving a risk of physical harm. First, plaintiffs must allege that Ybarra had a duty to exercise reasonable care in giving Morales information about Johnson. As Prosser and Keaton have observed, “[i]n all cases of negligent misrepresentation . . . the circumstances must be such that the defendant is under a duty to the plaintiff to exercise reasonable care in giving the information, and that reliance upon what he says, with resulting danger, is reasonably to be expected.” (Prosser & Keeton on Torts, supra, ch. 5, § 33, at p. 207.) In this context, “duty” and “reasonable reliance” are closely connected. The likelihood that one’s statements about personal safety will be taken seriously is a primary factor in determining whether one has a duty to exercise care in making such statements. As the Restatement puts it, such a duty “extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend on the accuracy of the information.” (Rest.2d Torts, supra, § 311, com. b, at p. 106.)

Misrepresentations involving a risk of physical harm constitute an exception to the ordinary rule that “liability [for negligent misrepresentations] is imposed only on those who supply information for business purposes in the course of a business or profession.” (See 5 Witkin, Summary of Cal. Law, supra, Torts, § 721, at p. 820.) The ordinary rule is based on the principle that, in financial matters, a plaintiff “cannot expect the defendant to exercise the same degree of care [in social meetings] as he would when acting in a business or professional capacity.” (Ibid.) The misrepresentations in this case, of course, were not made in a financial context. However, the duty to use reasonable care in giving information applies more broadly when physical safety is involved. In cases “[w]here . . . the harm which results is bodily harm to the person, or physical harm to the property of the one affected, there may be liability for the negligence even though the information is given gratuitously and the actor derives no benefit from giving it.”⁶ (Rest.2d Torts, supra, § 311, com. c, at p. 107; see also Barbara A. v. John G., supra, 145 Cal.App.3d at pp. 375-376; Connelly v. State of California (1970) 3 Cal.App.3d 744, 752 [84 Cal.Rptr. 257] [finding causes of action for gratuitous negligent misrepresentations involving risks of physical harm].)

In view of Johnson’s threats, did Ybarra have a duty to use reasonable care in giving Morales information about her personal safety? Ordinarily, of course, law enforcement personnel have no duty to volunteer information about released criminals under their supervision. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 749-758 [167 Cal.Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]; J. A. Meyers & Co. v. Los Angeles County Probation Dept. (1978) 78 Cal.App.3d 309, 314-315 [144 Cal.Rptr. 186]; cf. Davidson v. City of Westminster, supra, 32 Cal.3d at pp. 201-209 [police officer has no duty to warn about possible violence by a suspect under surveillance].) Nevertheless, the absence of a duty to speak does not entitle one to speak falsely. Thus, we may approach the duty question in this case by asking whether a reasonable parole officer, having chosen for whatever reason to provide information to a potential victim about a parolee’s dangerousness, “knows or should realize that [the listener’s] safety . . . may depend on the accuracy of the information.” (Rest.2d Torts, supra, § 311, com. b, at p. 106.) Since parole officers have statutory obligations to supervise parolees and expertise in doing so, a member of the public might reasonably believe that an officer who has chosen to discuss a parolee’s dangerousness “purports to have special knowledge of the matter, or special reliability.” (Id., com. c, at p. 107.) Accordingly, we conclude that Ybarra, having chosen to communicate information about Johnson to Morales, had a duty to use reasonable care in doing so.

Second, plaintiffs must allege that Ybarra gave false information to Morales with a degree of culpability at least equal to negligence. Under Restatement Second of Torts, supra, section 311, “[s]uch negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.” Plaintiffs have met this requirement as a matter of pleading. To quote the complaint, Johnson had told Ybarra that “he was looking for [Morales] and that he would “kill [her] if [he] found her.” Despite this knowledge, however, Ybarra allegedly told Morales that Johnson was “not going to come looking” for her, and “further assured [her] of her safety by emphasizing to her that Johnson had told him that he was still in love with [her] . . . .” Solely as a matter of pleading, these allegations suffice to raise a question about whether Ybarra exercised due care in communicating to Morales what he knew about Johnson’s threats.

Third, as in all cases for negligent misrepresentation, plaintiffs must allege facts sufficient to show that Morales actually and reasonably relied on the alleged misrepresentations.⁷ The complaint, however, is deficient in this regard. In view of the very specific allegations that Morales was afraid of Johnson because of his past death threats and violent behavior towards her, the allegation that she “failed to take steps to protect herself from Johnson” does not suffice. “The court should not be required by conjecture to supply a necessary but missing allegation, which, if it had been made, would run counter to reasonable probability, even though it would have to be accepted as true for the purpose of testing the sufficiency of the complaint.” (Vice v. Automobile Club of So. Cal. (1966) 241 Cal.App.2d 759, 764 [50 Cal.Rptr. 837].)

Finally, plaintiffs must allege that Morales’s reliance on Ybarra’s representations proximately caused her death. At present, plaintiffs have alleged that, “[a]s a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson,” who “kidnapped and shot [her].” This general allegation suffices as a matter of pleading solely on the issue of causation. As we have already noted, however, plaintiffs cannot establish a complete causal relationship between Ybarra’s statements and Morales’s death, and thus state a cause of action, without the further allegation that Morales actually and reasonably relied on Ybarra’s statements about Johnson.

At oral argument, counsel indicated that plaintiffs were willing to amend to state a cause of action for negligent misrepresentation. Plaintiffs are entitled to leave to amend because the lower courts did not address the theory on which we now rely.⁸ (Williams v. State of California, supra, 34 Cal.3d 18, 28.)

B. The Federal Claim

Plaintiffs have also attempted to state causes of action against the State and Ybarra under the Civil Rights Act of 1871 (42 U.S.C. § 1983; hereafter section 1983).⁹ However, plaintiffs appear to be proceeding under the incorrect assumption that section 1983 simply federalizes all tort claims against state actors. In essence, petitioners merely incorporate their earlier allegations about Ybarra’s “conduct” and add boiler-plate allegations of recklessness, deprivation of life, official policy, and entitlement to attorney’s fees.

Recent decisions of the United States Supreme Court make it impossible for these plaintiffs to state such a claim. In Will v. Michigan Dept, of State Police (1989) 491 U.S. _ [105 L.Ed.2d 45, 109 S.Ct. 2304], the court held that neither a state nor a state official acting in his official capacity is a “person” subject to suit under section 1983. (Will, supra, 491 U.S._ [105 L.Ed.2d at pp. 53-58, at pp. 2307-2312].) Accordingly, plaintiffs may not recover under that section either from the State or from Ybarra in his capacity as parole officer. Nor is Ybarra liable to plaintiffs in his individual capacity. The Supreme Court’s opinion in DeShaney v. Winnebago County DSS (1989) 489 U.S. 189 [103 L.Ed.2d 249, 109 S.Ct. 998] (DeShaney) makes it clear that a constitutional “deprivation” can only be caused by a person acting under color of state law. In this case, however, the actor who caused Morales’s death was Johnson, not Ybarra.

The State’s failure to prevent harm inflicted by a private actor does not give rise to a cause of action under section 1983. This is the teaching of DeShaney: “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” (DeShaney, supra, 489 U.S. at p. 200 [103 L.Ed.2d at p. 262, 109 S.Ct. at p. 1006].) “In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf—through incarceration, institutionalization, or similar restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to protect his liberty interests against harms inflicted by other means.” (Ibid.)

We cannot avoid this holding, as plaintiffs suggest, on the basis of Ybarra’s involvement in Morales’s affairs. The DeShaney court held that a substantially greater degree of state involvement did not give rise to a claim under section 1983.

The plaintiff in DeShaney was Joshua, a young boy who was severely beaten by his father and is now profoundly retarded as a result. The beating followed substantial involvement by the defendants, a county and its department of social services, in attempting to protect Joshua. At one point, based upon reports of child abuse by a physician, the county even removed Joshua from his father’s custody. When the father agreed to cooperate by enrolling Joshua in preschool and by receiving counselling, the county returned the boy to the home where he had suffered abuse. Although medical personnel reported further abuse, Joshua’s caseworker took no more action. On monthly home visits the caseworker, herself, saw suspicious injuries on the boy’s head and saw that his father was not complying with his agreement. On two visits the caseworker was told that Joshua was too ill to see her. But she continued to take no action, and the severe beating followed. Based on these facts the Supreme Court held that federal law did not provide relief.

The county’s decision to return Joshua to his father’s custody undeniably increased the risk of injury. However, the Supreme Court expressly held that it “does not alter the analysis” that “the State once took temporary custody of Joshua . . . , for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all. . . .” (DeShaney, supra, 489 U.S. at p. 201 [103 L.Ed.2d at p. 262, 109 S.Ct. at p. 1006].) If one questions w'hether Joshua, a young boy, was really “free[] to act on his own behalf’ (ibid.), then that only proves the instant case. In a much more substantial sense Ybarra left Morales, a competent adult, free to take whatever measures she thought appropriate for her own protection, informed by her personal knowledge of Johnson and his threats and violence towards her.¹⁰

Plaintiffs argue that the decision in Wood v. Ostrander (9th Cir. 1989) 879 F.2d 583 (Wood), supports a different result. In Wood, however, unlike DeShaney and the case before us, the defendant physically limited the plaintiff’s ability to act on her own behalf.¹¹ (Cf. DeShaney, supra, 489 U.S. at p. 200 [103 L.Ed.2d at p. 262, 109 S.Ct. at p. 1006].) The defendant, a Washington State Trooper, arrested a motorist for driving while intoxicated, confiscated the keys to his car, and then simply drove away, leaving his female passenger, the plaintiff, in a high crime area where she was picked up by another driver and raped. (Wood, supra, 879 F.2d at p. 586.) By depriving the plaintiff of transportation in a high crime area, the defendant left her in a much worse position than before, having substantially limited her ability to protect herself. In contrast, Ybarra left Morales in the same position as before, still free to take any measures she wished to protect herself from Johnson.

If the result that DeShaney compels in this case seems harsh, it is important to remember that our mandate changes when we interpret section 1983. When we interpret that statute, we deal not with the redress of private wrongs but with the allocation of lawmaking power between the federal and state governments. “A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes.” (DeShaney, supra, 489 U.S. at p. 202 [103 L.Ed.2d at p. 263, 109 S.Ct. at p. 1Q07].) But the power to impose such duties does not derive from section 1983. “[N]ot ‘all common-law duties owed by government actors were . . . constitutionalized by the Fourteenth Amendment.’ ” (DeShaney, supra, 489 U.S. at p. 202 [103 L.Ed.2d at p. 263, 109 S.Ct. at p. 1007], quoting Daniels v. Williams (1986) 474 U.S. 327, 335 [88 L.Ed.2d 662, 671, 106 S.Ct. 662].)

III. Conclusion

The decision of the Court of Appeal is affirmed insofar as it holds that plaintiffs have not stated a cause of action and dismisses the purported cause of action under 42 United States Code section 1983. The decision is reversed insofar as it denies leave to amend. Accordingly, the case is remanded to the Court of Appeal, which shall vacate its order denying the petition for a writ of mandate. The Court of Appeal shall also enter a new order granting the petition and directing the superior court to vacate its judgment of dismissal and grant plaintiffs leave to amend to state a cause of action for negligent misrepresentation involving a risk of physical harm.

Lucas, C. J., Eagleson, J., and Kennard, J., concurred.

1 Two additional defendants are not parties to this appeal. These are the County of Santa Clara and the Santa Clara Valley Medical Center, a county hospital where Johnson was temporarily confined for psychiatric observation. Plaintiffs allege that the county and its hospital are liable because the hospital’s staff failed to inform Morales of threats that Johnson made against her during his confinement.

Plaintiffs have also alleged that the State is liable because a psychologist in its employ failed to warn Morales of threats by Johnson. The superior court overruled the State’s demurrer to this cause of action, and this ruling is not before us.

2 Plaintiffs do not specifically argue that Ybarra’s refusal to provide such information was tortious. Indeed, state law made it a crime for Ybarra to disclose information about Johnson’s criminal record. (See Pen. Code, §§ 11105.1 [state summary criminal history information; persons entitled to receive], 11142 [authorized person furnishing record or information to unauthorized person; misdemeanor].)

3 The parties have informed us that the entire telephone conversation between Ybarra and Morales was tape-recorded. However, plaintiffs have included only a few statements from the conversation in their complaint.

4 In their first amended complaint, plaintiffs clearly distinguish between the liability of Ybarra, which is based on statements, and that of the medical personnel, which is based on a failure to act: “As a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson.” (Italics added.)

Plaintiffs may have attempted to state a cause of action for failure to act based upon the allegation that Ybarra failed to serve a temporary restraining order on Johnson or arrest him. However, neither allegation helps plaintiffs to state a cause of action. This is because plaintiffs do not allege that an order was actually furnished to Ybarra for service, and because Ybarra enjoys absolute statutory immunity for the failure to arrest Johnson. (Gov. Code, § 846; City of Sunnyvale v. Superior Court (1988) 203 Cal.App.3d 839, 842 [250 Cal.Rptr. 214]; cf. Davidson v. City of Westminster (1982) 32 Cal.3d 197, 205-206, fn. 4 [185 Cal.Rptr. 252, 649 P.2d 894].) At oral argument, plaintiffs characterized these allegations as relevant to the existence of a special relationship rather than as independent grounds of liability.

5 Civil Code, section 1710, subdivision 2, is often cited as the statutory basis in California for the negligent misrepresentation cause of action. (See, e.g., Barbara A. v. John G., supra, 145 Cal.App.3d at pp. 375-376; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 721, p. 819.) The section defines one form of “deceit” as: “[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true . . . .”

6 Even in cases involving physical harm, however, “[t]he fact that the information is gratuitous may . . . affect the reasonableness of the other’s reliance upon it in taking action.” (Rest.2d Torts, supra, § 311, com. c, at p. 107.) For example, “[t]here may be no reasonable justification for taking the word of a casual bystander, who does not purport to have any special information or any interest in the matter, as to the safety of a bridge or a scaffold, where the plaintiff would be fully justified in accepting the statement of one who purports to have special knowledge of the matter, or special reliability, even though the plaintiff knows that he is receiving gratuitous advice.” (Ibid.)

7 A defendant is liable under the theory set out in the Restatement Second of Torts, supra, section 311, only “for physical harm caused by action taken by the other in reasonable reliance upon such information.” (Rest.2d Torts, supra, § 311, subd. (1), italics added.) Under section 311, reliance is an element of the cause of action which must be both pled (Dyson v. General Motors Corp. (E.D.Pa. 1969) 298 F.Supp. 1064, 1066-1067; Howard v. Poseidon Pools, Inc. (1986) 133 Misc.2d 50 [506 N.Y.S.2d 523, 525], affd. in part and revd. in part on other grounds (1987) 134 App.Div.2d 926 [522 N.Y.S.2d 388]) and proved (Kommanvittselkapet Harwi (R. Wigand) v. United States (3d Cir. 1972) 467 F.2d 456, 459, cert den. (1973) 411 U.S. 931 [36 L.Ed.2d 391, 93 S.Ct. 1898]; Baylie v. Swift & Co. (1975) 27 Ill.App.3d 1031 [327 N.E.2d 438, 449]). A plaintiff must also plead reliance if the cause of action for negligent misrepresentation involving physical harm is viewed as one under Civil Code section 1710, subdivision 2. (Barbara A. v. John G., supra, 145 Cal.App.3d at pp. 375-376.)

8 This case also raises issues of statutory immunity, which the superior court resolved in favor of the defendants. The court should reconsider these issues in the light of any new allegations. To address these issues before plaintiffs have stated a cause of action is premature. (Davidson v. Westminster, supra, 32 Cal.3d at pp. 201-202; see also Williams v. State of California (1983) 34 Cal.3d 18, 22 [192 Cal.Rptr. 233, 664 P.2d 137].)

For the superior court’s guidance, we note that the statutory immunity from liability for misrepresentations (Gov. Code, §§ 818.8 and 822.2) does not apply to negligent misrepresentations involving a risk of physical harm. In Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], the foster mother of a youth on parole from the California Youth Authority sued the state after the youth assaulted her. The plaintiff alleged, among other things, that “the parole officer had affirmatively misrepresented that the youth had no background of violence and no character traits suggesting violent actions in the future.” (Id., at p. 799.) We held that “[t]he parole officer’s conduct, whether he expressed affirmative and false representations as to the youth’s character or merely remained silent on this matter, does not warrant immunity under Government Code section 818.8 as a ‘misrepresentation.’ ” (Id., at p. 799, italics omitted.) We reached that conclusion because the Legislature, in enacting the immunity statute, intended to limit the immunity to cases involving misrepresentations of a financial or commercial character. (Id., at p. 800; see 2 Sen. J. (1963 Reg. Sess.) p. 1889.)

The dissenting opinion misinterprets Johnson as holding that a plaintiff cannot recover damages for physical harm in an action for negligent misrepresentation. To the contrary, we held only that the immunity statute did not apply to misprepresentations causing physical harm; we expressly held open the possibility that the plaintiff would be able to state a cause of action based upon the parole officer’s misrepresentation. To quote the opinion, “however we may choose to characterize the parole officer’s failure to give adequate warnings to plaintiff, section 818.8 does not apply to this case.” (Id., at p. 800.) Indeed, there would have been no need to address the immunity statute’s applicability unless it was anticipated that the plaintiff would state a cause of action based upon a misrepresentation. It should also be noted that the dissent’s interpretation of Johnson as limiting damages recoverable in an action for negligent misrepresentation conflicts with Civil Code section 3333, which permits the plaintiff in a tort action to recover “the amount which will compensate for all the detriment proximately caused thereby . . . .” (Italics added.)

9 Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

10 Plaintiffs theorize that Ybarra’s bad advice restricted Morales’s psychological freedom to protect herself. But this speculative theory of causation is far too attenuated to support liability under section 1983. Federal law, not state law, determines the closeness of the casual connection that must exist between state action and the alleged deprivation. A “remote” causal connection does not suffice. (Martinez v. California (1980) 444 U.S. 277, 285 [62 L.Ed.2d 481, 489, 100 S.Ct. 553].) The Seventh Circuit has made the point more forcefully: “The states are free in the administration of their own tort law to attenuate the requirement of causation as far as they want, even to the point... of eliminating it entirely; but deprivation in the constitutional sense requires more than a minimal or fíctitous causal connection between the action of the state and the injury of the plaintiff." (DeShaney v. Winnebago County DSS (7th Cir. 1987) 812 F.2d 298, 302-303, affd. (1989) 489 U.S. 189 [103 L.Ed.2d 249, 109 S.Ct. 998].)

11 In addition, Wood was argued before the Supreme Court’s decision in DeShaney, which received only a passing reference in the Court of Appeals’s opinion. (Wood, supra, 879 F.2d at p. 590.) The dissent in Wood argues that the majority opinion does not reflect DeShaney’s recent change in the law. (Wood, supra, 879 F.2d at pp. 597-600 (Carroll, J., dis.).)