Filed 8/19/26 L.H. v. County of San Diego CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
L.H., D085668
Plaintiff and Respondent, (Super. Ct. No. 37-2022-
v.
00040652-CU-PO-CTL)
COUNTY OF SAN DIEGO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed in part, reversed in part, and remanded.
Herman Law, Sarah E. Serrano and Blake Woodhall for Plaintiff and Respondent.
Office of County Counsel, David J. Smith, Acting County Counsel, Michal P. Masterson, Deputy Counsel, for Defendant and Appellant.
L.H. filed a revival action pursuant to Code of Civil Procedure § 340.1 alleging that she was sexually abused while placed in a foster home (the Foster Home), under the legal custody, care and control of the County of San Diego (the County). L.H. asserts that the County was directly liable for
negligence under Government Code section 815.61 for its failure to discharge
1 Further unspecified statutory references are to the Government Code.
mandatory duties, including mandatory cross-reporting of the allegations of abuse to law enforcement, and that the County was vicariously liable for the negligent act of its employee social workers under sections 815.2 and 820.2.
The trial court granted a motion for summary judgment in favor of the County. The trial court found that the undisputed evidence showed that the County cross-reported the abuse as required and that the County was entitled to discretionary act immunity as to any claims of vicarious liability based on the alleged negligent acts of the County’s employees in making decisions regarding L.H.’s placement.
On appeal, L.H. asserts that the County did not cross-report each individual report of abuse as required by statutory law. She also maintains that the County is not entitled to discretionary act immunity because the social workers did not adequately investigate the reports of abuse and did not make a conscious and considered decision to maintain her placement in the Foster Home. We conclude that the County has established that it cross- reported each of two separate reports of abuse, but that there remains a triable issue of fact as to L.H.’s claim for vicarious liability. Accordingly, we remand the matter to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND As the trial court recognized, this is a tragic case. L.H. was molested in her own home at the age of 11. In 2000, when L.H. was 14 years old, the County placed L.H. in the Foster Home. In August 2001, L.H. reported to a temporary caregiver that she was being sexually abused by another child in the Foster Home (Foster Brother). The County investigated but L.H. remained in the home until December 2003, when another child made another report of sexual abuse in the home.
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A. The Complaint In late 2022, L.H. filed a revival action filed pursuant to Code of Civil Procedure section 340.1. L.H. asserted two separate claims for negligence against the County—one for vicarious liability under sections 815.2 and 815.4, based on the negligence of one or more social workers in failing to remove her from the Foster Home after she reported the abuse; and one for strict liability under section 815.6, based on the County’s failure to perform to undertake the statutory duty of cross-reporting the abuse to law enforcement.
L.H. alleged: The State of California authorized the County to place and care for children in foster care, and that, while in foster care in the County, those children are in the legal custody of the San Diego County Health and Human Services Agency (the Agency). L.H. was one such child and, while in foster care, the County was responsible for providing for her care, protection and safety. In that capacity, the County “had a non- delegable duty to use reasonable care in the investigation, licensing, supervision, and/or monitoring of foster care facilities, homes, and/or families with whom they placed foster children, and to develop or implement programs, guidelines, procedures and/or training to prevent the abuse of foster children placed within foster care facilities, homes and/or families.” This included, among numerous others, a duty “[t]o ensure that foster children are not left in dangerous conditions, including being subjected to sexual, emotional, or physical abuse.”
“In approximately 2000 to 2003, when [L.H.] was approximately fourteen (14) to seventeen (17) years old, [L.H.] was placed by [the County] in a foster home. [L.H.] was sexually abused and assaulted by [Foster Brother], an adult son of the foster parents, regularly and repeatedly over the course of approximately three (3) years while [L.H.] resided in the foster home where [the County] placed her. The acts of sexual abuse and assault took place in
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the foster home.” L.H. disclosed the abuse and assault to a county social worker, but the County took no action, and Foster Brother “continued to sexually abuse and assault L.H.”
L.H. alleged further that the County knew, or in the reasonable exercise of care should have known, that the Foster Home was unsafe, and that Foster Brother had a propensity for the conduct that caused her injury. More generally, L.H. alleged that the “sexual assaults and abuse of juveniles placed in foster care . . . was a chronic, unmitigated, systemic, and pervasive problem well known to [the County,]” and that the County “failed to address [this chronic problem] in any reasonable manner consistent with their duties to children in foster care.”
L.H. alleged further that the County failed to adequately supervise contract agencies and foster homes, failed to adequately train and supervise social workers, “fail[ed] to review and evaluate a foster care provider’s policies and procedures with regard to the safety of children, including without limitation, those to prevent sexual assaults,” and failed to adequately, properly, and completely investigate the allegations of abuse in this case. In doing so, the County breached its duties to L.H. B. The County’s Motion for Summary Judgment The County filed a general denial and asserted numerous affirmative defenses. After some initial discovery, the County filed a motion for summary judgment or, in the alternative, summary adjudication. The trial court continued the motion to allow for further discovery.
The County asserted that it was immune from any vicarious liability alleged in the complaint based on discretionary act immunity. It argued that the records from L.H.’s case file demonstrated that decisions of child welfare agency employees regarding the placement or removal of a child, including those related to the risk of abuse, were all discretionary decisions, even if
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they were “lousy.” As to the claims for direct negligence, the County asserted that there was no mandatory duty to remove L.H, and that the agency records show that the Agency cross-reported the disclosed sexual abuse to law
enforcement.2 In opposition, LH. asserted that the negligent acts and omissions underlying the vicarious liability claim were operational or ministerial, as opposed to the type of policy level decision that are entitled to discretionary immunity, and that the failure to remove her from the placement in the Foster Home was an egregious abuse of discretion in any event. In addition, L.H. asserted that the County was under a mandatory obligation to investigate each separate report of childhood sexual abuse, and that it failed to do so, at most cross-reporting only one report.
The parties both relied primarily on portions of L.H.’s foster care records, and particularly those describing the investigation in 2001. An emergency response referral information form, dated August 6, 2001, indicates that, while staying with a temporary caretaker while the foster family was on vacation, L.H. and two other girls reported that Foster Brother was molesting them in the Foster Home. L.H. said that she had not told her current foster mother because she thought the foster mother would not believe her, and would instead believe Foster Brother. The form indicates that a cross-report was made to the Chula Vista Police Department on August 6, 2001.
A delivered service log indicates that social workers interviewed L.H.
and the temporary caretaker who L.H. had reported the abuse to on August
2 The County also asserted that L.H. failed to make a government claim and that any attempt by the Legislature to retroactively lift that requirement violated the California State Constitution. Neither party pursues this claim on appeal.
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8, 2001. A different report provides additional details and indicates that a social worker, M.T., took L.H. and another girl back to the Foster Home on August 9, 2001. The girls did not want to go and asked why the social worker did not believe them. The social worker “told the girls I believed them but I needed certain things cleared up.” A social worker also interviewed Foster Brother, at school, on August 9, and the foster mother, via telephone on August 10. Another form, titled “Investigation Narrative,” recounts these same interviews, along with some additional information. At the end it states: “Disposition/Services: This referral is being concluded as inconclusive for sexual abuse. [Social worker N.] reported to this [social worker] that the foster minors are no longer in the [Foster Home] at this time.”
A second emergency response referral information form, dated August 10, 2001, indicates that the Agency received another report from L.H.’s biological mother, stating that L.H. had told her that two other girls that had been placed in the same home had been molested. The report notes “same allegation, different RP [reporting party].” It also notes that the person receiving the report called the Chula Vista Police Department and spoke with a law enforcement officer who said they would have someone call the reporting party.
In addition to the foster care records, both parties provided portions of the transcript from L.H.’s deposition and L.H. also provided excerpts from various social workers, including three social workers whose names appeared in the narratives from the investigation. C. The Trial Court Ruling After hearing argument, the trial court granted the County’s motion for summary judgment.
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As to the alleged mandatory duty, the trial court found:
“The undisputed evidence demonstrates that [L.H] disclosed the abuse to her biological mother . . . who contacted the child abuse hotline on August 10, 2001. The County cross-reported this report, as required. [¶] All of the evidence demonstrates that the County complied with its mandatory duties to investigate and cross-report the August 2001 report of abuse. Summary judgment is granted on this basis.”
As to the County’s vicarious liability, the trial court discussed the relevant case law at length and then stated:
“In this case, the undisputed facts demonstrate that County personnel complied with their ministerial duties to investigate the report of sexual abuse, and to cross-report as necessary. They evaluated the risk associated with the abuse disclosure, and made the subjective decision that the investigation was ‘inconclusive.’ Their acts or omissions in responding to the report of abuse, including the decision to keep [L.H.] in the foster home, were discretionary and entitled to immunity as a matter of law. Summary judgment is also granted on this basis.”
The trial court entered judgment in favor of the County, and L.H. filed a timely notice of appeal.
II. DISCUSSION
L.H. raises similar arguments on appeal as she did in the trial court.
She maintains that the County violated its mandatory duty to cross-report each individual report of known or suspected sexual abuse, and argues that the County has not established that the relevant social workers made a considered, policy-level decision after consciously weighing the risks and advantages of leaving L.H. placed in the Foster Home with Foster Brother. A. Standard of Review A trial court shall grant a motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact
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and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).)
As the moving party, the County had the initial burden of establishing either that L.H. could not prove or that it had a complete defense to each of L.H.’s claims. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 853.) Assuming the County met that initial burden, the burden then shifted to L.H. to present evidence demonstrating a triable issue of material fact, meaning the evidence would allow a reasonable trier of fact to make a factual finding in favor of L.H., for example, by concluding that the County had not complied with its statutorily mandated duties to cross-report the abuse, or that it was not entitled to discretionary act immunity. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 843, 850.)
We review the trial court’s order granting the County’s motion for summary judgment under the same legal standard as the trial court and independently assess the correctness of the ruling. (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 178 (B.H.); D.G. v. Orange County Social Services Agency (2025) 108 Cal.App.5th 465, 470 (D.G.); Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 231.) “[W]e examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460; see also B.H., at p. 178 [“ ‘ “In so doing, we view the evidence in the light most favorable to plaintiffs as the losing parties, resolving evidentiary doubts and ambiguities in their favor.” ’ ”].) B. The Government Claims Act The County asserts that it is not liable for L.H.’s claims, and is entitled to summary judgment, based primarily on the general immunity conferred
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upon it by the Government Claims Act (§ 810 et seq., the Act). Accordingly, we provide a brief overview of the relevant provisions of the Act before turning to the specific contentions raised on appeal.
“ ‘[T]he Government Claims Act “is a comprehensive statutory scheme that sets forth the liabilities and immunities of public entities and public employees for torts.” ’ ” (Danielson v. County of Humbolt (2024) 103 Cal.App.5th 1, 13 (Danielson). “[S]ection 815 sets forth the general rule of immunity for public entities under the Government Claims Act. [S]ection 815 provides that ‘[e]xcept as otherwise provided by statute’ ‘[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity . . . or any other person.’ ” (County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034, 1045.)
Section 815.2, subdivision (a) sets forth an exception to the general immunity rule as it relates to acts and omissions by employees of a public entity. It states, “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Section 815.2, subdivision (b) provides further, “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Section 815.4 provides a similar exception for the acts or omissions of independent contractors.
Section 820 delineates the liability (and immunity) of public employees themselves and provides: “(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person. [¶] (b) The liability of
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a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.” Section 820.2, states further, “Except as otherwise provided by statute, a public employee is not liable 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 such discretion be abused.” (Italics added.)
Thus, “ ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).’ ” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.)
Finally, the broad grant of immunity in section 815 is also “subject to the exception contained in Government Code section 815.6 for certain [mandatory duties, or] ministerial acts not subject to the exercise of discretion.” (Danielson, supra, 103 Cal.App.5th at p. 13.) Section 815.6 states: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
“As our Supreme Court has explained: ‘[A]pplication of [Government Code] section 815.6 requires 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.’ [Citation.] It follows that ‘the duty of a public
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entity is not mandatory if it is debatable whether the duty was adequately fulfilled.’ [Citation.] Whether an enactment creates a mandatory duty is a question of law.” (Danielson, supra, 103 Cal.App.5th at p. 14.) C. There is no Triable Issue of Fact as to the County’s Mandatory Duties Turning to the issues on appeal in this case, we begin with L.H.’s contention that the County is liable under section 815.6 for violating its mandatory duty to cross-report each individual report that it received raising a reasonable suspicion of sexual abuse occurring in the Foster Home. As we explain, we conclude that the County did have a mandatory duty to report each allegation but that L.H. has not established a triable issue of material fact as to the County’s failure to fulfill that mandatory duty.
L.H. contends the county violated its mandatory duty to investigate and cross-report each report of abuse under Welfare & Institutions Code section 16501, subdivision (f) and Penal Code section 11666. Both statutes have been in effect but have been amended since 2001, when L.H. alleges that the County violated them.
In August 2001, former Welfare and Institutions Code section 16501, subdivision (f) required county welfare departments to maintain emergency response services and to respond to any report of imminent danger to a child immediately. (Former Welf. & Inst. Code § 16501, eff. Jan. 1. 1996 to Dec. 31, 2010.) Former Penal Code section 11166, subdivision (a) required any mandated reporter (including social workers) to make a report to a county police or sheriff’s department whenever the mandated reporter had knowledge of or observed a child whom the mandated reporter knew or reasonably suspected had been the victim of child abuse or neglect. (Former Pen. Code § 11166, subd. (a), eff. July 21, 2001 to Sept. 26, 2002.) Former Penal Code section 11166, subdivision (h) required welfare agencies to
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immediately report “every known or suspected instance of child abuse or neglect” to law enforcement, and subdivision (i) likewise required law enforcement agencies to immediately report “every known or suspected instance of child abuse or neglect” to the relevant child welfare agency. (Former Pen. Code § 11166, subds. (h), (i), eff. July 31, 2001 to Sept. 26, 2002.)
This statutory scheme, enacted in 1982 and referred to as “[t]he Child Abuse Reporting Law,” “impose[d] a mandatory reporting requirement on individuals whose professions bring them into contact with children.” (Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 258.) Despite numerous amendments since, these same basic provisions remain in effect today. (See Pen. Code, § 11166, subds. (a), (j), (k).)
The County does not dispute that the Agency had a mandatory duty to cross-report, and investigate, L.H.’s disclosure of abuse. Nor is there any real dispute that the Agency did cross-report and investigate L.H.’s disclosure of abuse, at least to some extent. Nonetheless, L.H. maintains that the County failed to fulfill its mandatory duties because the Agency failed to cross-report each individual report of abuse. In other words, L.H. contends that the Agency could not combine multiple reports of suspected abuse into a single duty to cross-report that abuse to law enforcement, even if those reports all derived from her own disclosure of the abuse to various individuals.
In B.H., the California Supreme Court addressed the overlapping mandatory reporting duties set forth in current Penal Code section 11166, subdivisions (a) and (k), in the context of a law enforcement agency’s response to a 911 call reporting an instance of suspected child abuse. (B.H., supra, 62 Cal.4th at p. 177.) The court first clarified that Penal Code section 11166, subdivision (k) “imposes an obligatory duty, and not merely a
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discretionary or permissive authorization, upon law enforcement agencies” to cross-report any and all child abuse or neglect reports that it receives. (B.H., at p. 181.) Accordingly, in B.H., the sheriff’s department had a mandatory duty to immediately, or as soon as practicably possible, cross-report the allegations made in the 911 call to the relevant child welfare agency. (Id. at pp. 180–181.)
The court in B.H. explained, “the legislative history reflects that the Legislature, in reenacting the child abuse reporting law, intended to rectify the problem of inadequate child abuse reporting by mandating cross- reporting between law enforcement and child welfare agencies.” (B.H., supra, 62 Cal.4th at p. 183.) Thus, the California Supreme Court rejected the appellate court’s finding that the law enforcement agency’s duty to report under Penal Code section 11166, subdivision (k) is somehow “contingent on its employee’s duty, arising as a mandated reporter, to report and investigate under subdivision (a).” (Id. at p. 184.) While Penal Code section 11166 subdivision (a) requires mandatory reporters to report abuse that they suspect, subdivision (k) requires the relevant agencies to cross-report any report that they receive from a mandated reporter, regardless of any investigation they may undertake and any resulting determinations they may make about the validity of the report. (Ibid.)
The court in B.H. then went on to consider the obligations of the individual deputy that responded to the 911 call as a mandatory reporter under Penal Code section 11166, subdivision (a). (B.H., supra, 62 Cal.4th at p. 186.) The court acknowledged that “there is tension in the statutory scheme” and that employees of child protective agencies who perform investigatory functions on behalf of their employer, such as law enforcement officers and social workers, are designated mandatory reporters, and that
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they have a duty to report suspected abuse based on an objective standard of what a reasonable person would suspect based on the relevant facts and circumstances, but that the Legislature had also granted them “concomitant broad immunities.” (Id. at p. 193.) Considering the entirety of the statutory scheme, the court concluded that the individual officer investigating the 911 call did not have an independent duty to file a report of a suspected incident of child abuse under Penal Code section 11166, subdivision (a). (B.H., at p. 194.) Rather, because the 911 call alerted the sheriff’s department to a “suspected instance or incident of child abuse,” the call itself triggered a mandatory duty for the sheriff’s department to cross-report the incident to the relevant child welfare agency. (Ibid.) Imposing an additional requirement on the deputy would be duplicative and would not serve the ultimate intention of the statutes. (Id. at p. 196.)
Important to the case at hand, the court in B.H. noted that the deputy responding to the 911 call would have been required to make an additional cross-report if, once dispatched to investigate the original report of suspected abuse, the deputy had observed evidence that would sustain an objective suspicion that a different, previously unreported incident or instance of child abuse had occurred. (B.H., supra, 62 Cal.4th at p. 197.) For instance, if the deputy (or, in this case, the social worker) observed something that would lead a reasonable person to suspect that another child was being abused, that the child that was the subject of the initial report was being abused in a different manner, or that an additional instance of abuse had occurred, the deputy would then have a mandatory duty to report that additional instance or incident of suspected abuse.
The court in Holman v. County of Butte (2025) 111 Cal.App.5th 177 (Holman) relied on the analysis in B.H. to conclude that a child welfare
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agency that receives a report of suspected abuse from a mandatory reporter likewise has a mandatory duty to cross-report to the appropriate law enforcement agency, regardless of the welfare agency’s investigation or determination as to the validity of the report. (Id. at p. 196.) There, the evidence indicated that the county welfare department had “evaluated out” a report of abuse from the plaintiff’s teacher—a mandatory reporter—without cross-reporting the allegations of abuse to local law enforcement. (Id. at p. 184.)
In reversing the trial court’s grant of summary judgment, the appellate court in Holman explained, “The California Supreme Court’s opinion [in B.H.] makes clear that, in general, the duty to cross-report is triggered by receipt of a mandated child abuse report, since such reports are made only when the mandated reporter ‘knows or reasonably suspects’ a child has been the victim of child abuse or neglect. [B.H., supra, 62 Cal.4th at p. 185.] Although ‘in some instances’ the agency may need to exercise ‘judgment’ to identify whether a particular report involves child abuse or neglect, ‘such a determination does not involve the exercise of discretion.’ [B.H., at p. 181.]” (Holman, supra, 111 Cal.App.5th at p. 196.) “Moreover, the California Supreme Court unequivocally held that determining whether a reported incident meets the definitions of abuse or neglect is a ministerial or operational function, not a discretionary activity. [B.H., at p. 181.] Accordingly, even if social workers are required to cross-report only those allegations determined to meet the definitions of abuse or neglect, there is still a triable issue of fact in this case as to whether the County violated a mandatory duty by failing to cross-report the referral.” (Holman, at p. 196.)
The foregoing authorities establish that a child welfare agency has a mandatory duty under Penal Code section 11166, subdivision (j) to cross-
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report each instance in which it receives a report of suspected child abuse from a mandated reporter, regardless of any determination it may make regarding that report. The County does not assert, nor do we conclude, that this duty differed in any material way under former Penal Code section 11166, subdivision (h), in effect in August 2001 when L.H. first reported abuse in the Foster Home.
Turning to the specific facts of the case at hand, the record indicates the Agency received at least two hotline reports of suspected child sexual abuse, one from the temporary caretaker on August 6, 2001, and one from L.H.’s biological mother on August 10, 2001. But there are also additional facts that are relevant here. First, it is not apparent from the record whether L.H.’s biological mother was a mandatory reporter, like the teacher in Holman. Second, it does appear, as the County suggests, that the second report was not related to a separate (i.e., different, previously unreported) incident or instance of suspected child sexual abuse. Rather, both reports indicated that L.H., and two other girls, had recently disclosed being sexually abused by Foster Brother.
However, we need not and expressly do not decide the importance of these distinctions in the present case. Regardless of whether the statutes created a legal mandate to do so, the records before us indicate that the Agency did cross-report each of the two reports. An emergency response referral form related to the temporary caregiver’s report on August 6, 2001, indicates that a cross-report was made to the Chula Vista Police Department on August 6, 2001 at approximately 3:50 p.m.. Notably, the Agency had not yet received the second report from L.H.’s biological mother at the time of this first report. The second emergency response referral information form, related to that second report on August 10, 2001, likewise notes that the
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person receiving the report called the Chula Vista Police Department and spoke with a law enforcement officer who said they would have someone call the reporting party.
L.H. contends the first note, regarding a cross-report on August 6, is not sufficient because it does not list the name or badge number of the official contacted, and because the County did not provide any records from the Chula Vista Police Department confirming that they received a cross-report that day. L.H. does not provide any authority suggesting that such evidence is necessary, nor is there anything in the record to suggest that the social worker somehow misrepresented or falsified the cross-report information. L.H. also points out that one of the social workers testified that she did not call the sexual abuse hotline because there was already an ongoing investigation, but this statement does not negate the evidence that the County made a cross-report after receiving each report, as required by the statutes. Thus, L.H. has not raised a triable issue of material fact as to whether the County fulfilled its duty to cross-report the first report of suspected sexual abuse.
As a final matter, L.H. does not allege, and thus we also do not determine, the adequacy of this phone call relaying the second report. Suffice to say, it does appear that the Agency passed on the information about each of the two reports to law enforcement, and that law enforcement agreed to contact L.H.’s biological mother, the second reporting party. Although the trial court’s ruling could be read to suggest that one report was sufficient, on our own independent review of the record under the applicable standard of review, we conclude that the evidence establishes that the Agency made two separate cross-reports. Accordingly, no triable issue of fact remains as to the County’s failure to comply with its mandatory duty to cross-report the
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allegations of abuse, and therefore the trial court correctly granted summary judgment as to L.H.’s claim that the County failed to comply with its mandatory duty to cross-report the claims of abuse. D. A Triable Issue of Fact Remains as to the County’s Vicarious Liability We turn next to the formidable question of whether a triable issue of fact remains as to the extent to which the County’s qualified discretionary immunity under sections 815.2 and 820.2 insulates it from L.H.’s claims of vicarious liability.
Courts have developed a two-step test to guide the analysis. “First, we decide whether the decision at issue is a discretionary, as opposed to a ministerial one.” (D.G., supra, 108 Cal.App.5th at p. 473.) “The second part of the discretionary act immunity analysis is whether the employee who made the decision at issue ‘actually reached a considered decision knowingly and deliberately encountering the risks that give rise to plaintiffs complaint. . . . [T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in “discretionary activity” is irrelevant if, in a given case, the employee did not render a considered decision.’ ” (Ibid., quoting Johnson, v. State of California, (1968) 69 Cal.2d 782, 794–795, fn. 8 (Johnson); accord Caldwell v. Montoya (1995) 10 Cal.4th 972, 981–982 (Caldwell) [explaining that courts have carefully preserved the distinction between policy and operational judgments in various contexts].)
Our high court has recognized, “both the difficulty and the limited function” “[i]n drawing the line between the immune ‘discretionary’ decision and the unprotected ministerial act[s].” (Johnson, supra, 69 Cal.2d at p. 793.) Indeed, “ ‘it may not be possible to set forth a definite rule which would determine in every instance whether a governmental agency is
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liable.’ ” (Ibid.) “Courts and commentators have therefore centered their attention on an assurance of judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government. Any wider judicial review . . . would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” (Ibid.)
Adding to these complexities, we note that the California Supreme Court has granted review to address the extent of immunity conferred upon a social worker’s response to claims of sexual abuse, albeit in the context of a demurrer. (K.C. v. County of Merced (2025) 109 Cal.App.5th 606, review granted June 25, 2025, S290435 (K.C.).) There, K.C. asserted that she was sexually abused and assaulted in two different foster homes; that she repeatedly reported the abuse to her social worker; and that despite these disclosures, the County failed to take corrective action, leaving her in placements where she continued to be abused and/or assaulted. (Id. at pp. 610–612.) In response, the county filed and the trial court sustained a demurrer based on discretionary immunity under sections 815.2 and 820.2. (K.C., at pp. 612–613.)
The Court of Appeal affirmed, finding that the social workers’ decisions regarding the placement of K.C. were sensitive policy decisions and that “ ‘social workers must be absolutely immune from suits alleging the improper investigation of child abuse’ and ‘removal of a minor’ ‘based upon suspicion of abuse.’ ” (K.C., supra, 109 Cal.App.5th at p. 618, review granted, italics added.) In doing so, the appellate court acknowledged K.C.’s assertion that decisions made in the continued supervision of a child in foster care were distinct from the initial decision to remove a child from their natural parents, but nonetheless determined that “decisions as to whether to undertake
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investigative or corrective action in response to reported child abuse fall outside the ambit of such surveillance and are ‘[no] less “discretionary” for purposes of the immunity of Government Code section 820.2 than the original placement decision.’ ” (K.C., at p. 619.)
The California Supreme Court granted review to address the following issue: “Was plaintiff's complaint alleging that a social worker failed to investigate or act in response to claims of sexual abuse subject to demurrer on the ground that discretionary act immunity under Government Code section 820.2 precluded liability?” (K.C., supra, 109 Cal.App.5th 606, review granted.) The court’s answer to that question could well be dispositive in this case, but, in the interim, we must analyze the issue presented in this case under the law as it now stands.
The County relies on a number of cases like K.C. in which courts have concluded that a decision whether to remove a child from a parental home or a foster care placement is necessarily discretionary and therefore entitled to immunity as a matter of law. (See, e.g., B.H., supra, 62 Cal.4th at pp. 191– 192 [noting that “The Courts of Appeal have held that the decisions of child welfare agency employees—regarding determinations of child abuse, the potential risk to a child, placement of a child, removal of a child, and other resultant actions—are subjective discretionary ones that are incidental to the employees’ investigations,” and citing cases]; County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 645 [finding county immune for social workers’ allegedly inadequate supervision of foster parent where social worker maintained mandated visitation schedule and child never disclosed abuse]; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456 (Jacqueline T.) [affirming grant of summary judgment where decision not to remove child from a parent based on “unsubstantiated”
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reports of abuse was entitled to immunity]; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 881 (Alicia T.) [concluding “social workers must be absolutely immune from suits alleging the improper investigation of child abuse, removal of a minor from the parental home based upon suspicion of abuse and the instigation of dependency proceedings”].)
But in most instances, the courts have acknowledged that there is no absolute rule. For example, in Jacqueline T., the court clarified:
“[W]e would be remiss to interpret the case law as supporting the proposition that all actions by social workers involve policy or prosecutorial decisions falling within the scope of statutory immunity. On this point, Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125 . . . is illustrative. There, the court held a social worker could be held liable for negligent supervision of a foster child where she failed to comply with regulations requiring her to make monthly home visits to the child. [Citation.] In doing so, the court reaffirmed Alicia T.’s holding that a social worker’s decision to initiate dependency proceedings is a quasiprosecutorial decision immunized by section 821.6. The court clarified, however, that the ‘actual delivery of public social services, such as foster care, to abused, neglected or exploited children,’ are actions governed by specific statutory or regulatory directives ‘which leave the officer no choice.’ [Citation.] As such, they would not be subject to immunity. (Jacqueline T., supra, 155 Cal.App.4th at p. 467.) Given the foregoing authority, we decline to conclude that the County is entitled to blanket immunity with respect to decisions or actions taken by social workers evaluating the suitability of individual foster homes for individual foster children, particularly when allegations of abuse have been
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made as to a home under consideration.3 Rather, in each case, the reviewing court must make a specific inquiry into the factual allegations and/or evidence in the record before it. Moreover, there does appear to be at least some difference in the way in which courts analyze a social worker’s decision to remove a child from parental care in the first instance, and the various decisions a social worker must make once a child is placed in foster care, including the extent to which the social worker investigates allegations of abuse in a foster home and/or decides whether to remove a child from a foster placement.
Considering L.H.’s allegations and the evidence in the record before us, it appears that there is a more fundamental issue at play, one that is not directly addressed by the analysis set forth in the foregoing authorities. Specifically, L.H. asserts that the social worker’s decision to end the investigation, and by extension, to leave her placed in the Foster Home, was based, at least in part, on a material misstatement of fact—that she and the other “foster minors [were] no longer in the [Foster] home.” While the record suggests that this may have been true for one or more of the other girls, it was not true for L.H. She remained in the Foster Home for nearly two more years, until 2003, when additional reports of sexual abuse surfaced.
We see three potentially discretionary decisions by social workers that may be entitled to statutory immunity: (1) the decision to return L.H. to the Foster Home when the foster family returned from vacation; (2) the determination that her sexual abuse allegations were “inconclusive”; and
3 As just one example, and in light of the County’s non-delegable duty to use reasonable care in the placement of children under its care, we certainly would not conclude that a decision to maintain placement of a child in a home where there have been substantiated allegations of abuse would be entitled to discretionary act immunity.
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(3) the decision that L.H. would thereafter remain in the Foster Home indefinitely.
Only the second and third of these three decisions could have been infected by social workers’ materially mistaken belief that L.H. was no longer in the Foster Home. As a matter of simple logic, the first decision, to return L.H. to her placement with the Foster Home when the foster family returned from vacation, could not have been based on the mistaken belief that L.H. was no longer placed there—a social worker physically returned her to that placement. Thus, the first decision was an independent discretionary decision to return L.H. to the foster home while the County continued to investigate her allegations of sexual abuse, and that decision necessarily occurred before the disposition that forms the core of the dispute in this case.
We now address, in turn, the extent to which discretionary immunity applies to the remaining two decisions and the extent to which disputed issues of fact preclude summary judgment on discretionary immunity grounds.
We begin with the social workers’ designation of L.H.’s sexual abuse allegations as “inconclusive.” If social workers reached this conclusion based on their reasoned analysis of the conflicting evidence they gathered during their investigation, then the decision is entitled to discretionary immunity. It is legally irrelevant that the investigation may have been incomplete or that the discretionary decision may have been based on materially inaccurate information. (See Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1381 [holding that statutory immunity applies “even to ‘lousy’ decisions in which the [social] worker abuses his or her discretion, including decisions based on ‘woefully inadequate information’ ”].)
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Nor is it dispositive that social workers found L.H.’s accusations “inconclusive.” “Based on the terminology used in the Child Abuse and Neglect Reporting Act. (Pen. Code, § 11164 et seq.) (the CANRA), an investigation of child abuse may result in a report with one of three possible findings: unfounded, substantiated or inconclusive. An ‘ “[u]nfounded report” means a report that is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect . . . .’ (Id., § 11165.12, subd. (a).) A ‘ “[s]ubstantiated report” means a report that is that is determined by the investigator who conducted the investigation to constitute child abuse or neglect . . . based upon evidence that makes it more likely than not that child abuse or neglect . . . occurred.’ (Id., § 11165.12, subd. (b).)” An ‘ “[i]nconclusive report” means a report that is determined by the investigator who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect . . . has occurred.” (Id., subd. (c).)’ ” (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 921, italics added.) Thus, although less definitive than an “unfounded” or “substantiated” finding, an “inconclusive” finding is a statutorily recognized “determin[ation].” (Ibid.) Provided this determination is reached based on a considered analysis and evaluation of evidence—even if inaccurate or incomplete—it would still be entitled to discretionary immunity. The appellate record might support this conclusion.
On the other hand, the thin summary judgment record before us also supports the reasonable inference that social workers used the “inconclusive” designation as shorthand for their conclusion that they did not need to reach any determination regarding L.H.’s sexual abuse allegations because the
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social workers mistakenly believed L.H. was no longer placed in the Foster Home. The failure to make a discretionary decision in the first instance, based on a material factual misunderstanding, is not a considered exercise of discretion that would be entitled to discretionary act immunity. However, on the record before us, there is no way to determine the significance and impact of that second sentence, and therefore there remains a triable issue of fact as to the County’s vicarious immunity.
We reach a similar conclusion with respect to the decision that L.H.
would remain placed in the Foster Home indefinitely. On one hand, if social workers made a reasoned determination that placement in the Foster Home remained suitable because social workers also reasonably determined that L.H.’s sexual abuse allegations were inconclusive, then that decision would be entitled to discretionary immunity. This is true even if the decision was based on inaccurate information or led to a heinous outcome. (See Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1285 [“Courts have determined immunity applies to [discretionary placement] decisions no matter how horrible the outcome, including a situation where a social worker returned a child to a father, who stabbed the child in the heart and lungs shortly thereafter.”].) The appellate record here might support this conclusion.
But, again, the ambiguous evidentiary record here also supports the reasonable inference that social workers never actually determined whether L.H.’s placement in the Foster Home remained suitable in light of her abuse allegations because social workers mistakenly believed she was no longer in that placement. Again, if social workers made no discretionary decision, then discretionary immunity does not apply.
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We find support for our approach in D.G., supra, 108 Cal.App.5th 465.
There, as here, the appellate court reversed the trial court’s grant of a motion for summary judgment in favor of the county. D.G. had asserted a claim for “negligence arising out of alleged sexual abuse by D.G.’s foster father from the time he was a small child until he was a teenager, beginning in the mid- 1970’s.” (D.G., at p. 468.) The trial court found there was insufficient evidence that the abuse was reasonably foreseeable because D.G. did not formally report it, and, alternatively, that the county was entitled to discretionary act immunity. (Id. at pp. 468–469.) The appellate court reversed, finding there was a triable issue of fact as to foreseeability—there was evidence the social worker failed to follow up on D.G.’s bedwetting problem; D.G.’s statement that “bad people are hurting me, ” and another foster child’s statement that showers with the foster father were “yucky”— and that “there was no considered decision to leave D.G. in the foster home after he reported he was being hurt by ‘bad people.’ ” (Ibid.)
As to foreseeability, the appellate court explained that there is a special relationship between the Agency and a child in foster care, giving rise to at least a potential duty to protect the child. (D.G., supra, 108 Cal.App.5th at p. 471.) The court determined, in the context of the record before it, that “it was sufficiently foreseeable that the failure by the [c]ounty to inquire or investigate when a foster child suggested abuse had occurred makes it appropriate to impose a duty to protect.” (Id. at p. 472.)
Turning to discretionary act immunity, the court focused on the second half of the analysis, whether the social worker rendered “a considered opinion.” (D.G., supra, 108 Cal.App.5th at pp. 473–474.) The court noted that the California Supreme Court had established a test for this second step in Johnson, and that it had more recently followed that same test in
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Caldwell. (Ibid.; Johnson, supra, 69 Cal.2d at p. 794, fn. 8; Caldwell, supra, 10 Cal.4th at p. 983.) As our high court explained in those cases, “there is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.” (Caldwell, at p. 981, citing Johnson, at p. 796.) Rather, “immunity applies only to deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages . . . took place. The fact that an employee normally engages in “discretionary activity” is irrelevant if, in a given case, the employee did not render a considered decision.’ ” (Caldwell, at p. 981, citing Johnson, at p. 795, fn. 8.)
In D.G., the county relied on a declaration from the social worker stating that she determined placement in the foster home was the best place for D.G., and that she “ ‘never aware of any red flags concerning . . . any risk of abuse.’ ” (D.G., supra, 108 Cal.App.5th at p. 474.) The court explained: “Even if we were to find that [the social worker’s] statement was sufficient to shift the burden, we would find the evidence sufficient to create triable issues of fact as to whether [the social worker] did actually consider facts indicating possible abuse before deciding that D.G. should be placed and remain placed [in the foster home.] The evidence must show a conscious, considered decision in light of all the relevant facts. [Citation.] The fact that [the social worker] did not discuss any of the indicators of possible abuse in her declaration suggests those facts were not considered. Discretionary act immunity, therefore, does not provide a basis for granting summary judgment in this case.” (D.G., supra, at p. 474.)
This same reasoning applies here. As we have explained, the disposition noted both that the referral was being concluded as “inconclusive” and that one social worker had reported to another that the foster minors,
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including L.H., were no longer in the home. This leaves open triable issues of fact as to whether the social worker(s) made a “conscious, considered decision in light of all the relevant facts” (see D.G., supra, 108 Cal.App.5th at p. 474.), or whether they simply concluded they did not need to further pursue the investigation into L.H.’s sexual abuse allegations and to determine the suitability of maintaining her placement in the Foster Home because of a mistaken belief that L.H. was no longer in that home.
The County asserts this argument is without legal or factual merit. We are not persuaded. First, the County asserts there is other evidence in the record indicating that at least one social worker knew L.H. resided at the Foster Home because she drove her back to the Foster Home on August 9, 2001. The record indicates that it was social worker M.T. who took L.H. back
to the Foster Home.4 It also indicates that another social worker conducted additional interviews the following day. Those interviews were discussed in the relevant report, just above the disposition, suggesting that the disposition was not prepared until at least sometime after the additional interviews on August 10. The same report also states that one of the other girls was staying with a friend, that another was “not returning to the home,” and that “[t]he [Foster Home] was not observed by this PSW [Protective Services Worker] during this investigation.” Finally, two names appear below the disposition, and neither is M.T. Thus, there remains at least a triable issue of fact as to what the social worker(s) who prepared the disposition knew or
4 To reiterate, the record before us demonstrates the decision to return L.H. to the Foster Home was a discretionary decision immune from liability.
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believed, and, in turn, whether there was a considered decision to maintain
L.H. in the Foster Home after her return.5 As to the legal issue, the County asserts that we should not apply the considered decision standard too strictly, and that immunity applies even if a discretionary decision is viewed as “lousy.” But here, we are not concluding that a social worker’s decision as to whether a placement remains suitable for a foster child is never entitled to discretionary immunity, nor are we concluding that a particular decision is not entitled to immunity simply because it was not, in hindsight, a good one. Indeed, we acknowledge that a fundamental principle behind discretionary immunity is that reasonable people may differ as to the merits of a discretionary decision. Rather, we are concluding, based on the narrow set of facts before us in this case, that there remain triable issues of fact as to whether decisions were even made, and, relatedly, whether any such decisions were “conscious, considered decision[s] in light of all the relevant facts.” (See D.G., supra, 108 Cal.App.5th at p. 474.)
If a jury determines that the social worker(s) who issued the final disposition did not actually consider whether it was appropriate to leave L.H. in the Foster Home because of a mistaken belief that she was no longer placed in the home at that time then, without more, there would be no discretionary decision to immunize. (See, e.g., Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 898 [“Much of what the County is obligated to do in terms of continued administration of the child’s welfare undoubtedly
5 L.H. also contends there while there is an emergency response form, there was not truly an investigation into the August 10 report by her biological mother. If the responsible social worker believed that L.H. was no longer in the Foster Home by August 10, it is reasonable to infer that the second investigation was concluded for the same reason.
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constitutes simple and uncomplicated surveillance which reasonably could be characterized as ministerial.”].) Rather, the jury would need to determine, for example, whether the County and its employees were negligent in their transmission of vital information between social workers, or whether the social worker(s) were negligent in their review of that information.
More generally, the County seems to assert that it is immune from vicarious liability so long as a social worker took some steps to investigate the reports of abuse. But here, that position is unavailing. In the unique situation of this case, the misinformation (that children were no longer in the foster home) suggested an investigation may have been cut short for a reason that obviated the need for social workers to exercise any discretion regarding whether the placement remained safe. Immunity in such a situation is inconsistent with the current state of the law regarding discretionary immunity. A decision to discontinue an investigation can of course be characterized as a discretionary decision, but that does not mean it is necessarily entitled to immunity. The distinction set forth by our high court in Johnson, on which other courts continue to rely, is grounded in the requirement that there be an actual, conscious, and considered decision for immunity to apply. (See Caldwell, supra, 10 Cal.4th at p. 981, citing Johnson; D.G., supra, 108 Cal.App.5th at p. 474.) There remains a triable issue of fact as to whether that occurred in this case.
Based on the foregoing, we conclude that the trial court erred in granting summary judgment to the County on L.H.’s claims of vicarious liability.
III. DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with instructions to vacate its order granting summary judgment for the
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County and to enter a new order granting summary adjudication as to L.H.’s claim that the County failed to cross-report each individual report of abuse as required by statutory law and denying summary adjudication as to L.H.’s claims based on vicarious liability. Appellant is entitled to costs on appeal.
KELETY, Acting P. J.
WE CONCUR:
CASTILLO, J.
RUBIN, J.