In Thompson v. County of Los Angeles, ordered published on November 16, 2022, the Second District Court of Appeal, Division 8 affirmed an order dismissing a lawsuit after demurrer was sustained without leave to amend. The plaintiff's four-year-old son fell at his school's playground, fracturing his arm. The child had a developmental delay and was nonverbal. The parents took the child to a doctor two days after the fall. The doctor did not diagnose the fracture as abuse. The principal at the son's school called the police and reported physical abuse of the son by an unknown party. The defendant county's Department of Children and Family Services investigated the son's injury. A department social worker reported that when she asked the son who injured him, the son pointed to his father. The social worker concluded the child was at risk of harm, and took him into protective custody. A juvenile court found prima facie evidence the son was subject to detention under Welfare & Institutions Code section 300. After a forensic child abuse expert reported the injury could have been an accident, the juvenile court dismissed the department's petition and released the son to his parents. The mother sued the county for negligence per se and intentional infliction of emotional distress. The trial court sustained the demurrer and dismissed the action with prejudice, concluding that the plaintiff did not allege violation of a mandatory duty.
The appellate court concluded the trial court correctly sustained the demurrer. Under Government Code section 815.6, a public entity may be held liable for violating a mandatory duty where an enactment creates an obligatory duty. Liability may not be based on an enactment that creates a discretionary or permissive duty, or that requires the entity or employee to perform a function that involves the exercise of discretion. The plaintiff alleged that a provision of the Child Welfare Services Manual of Policies and Procedure requiring social workers to make “necessary collateral contacts” with people “having knowledge of the condition” of children subject to allegations created a mandatory duty for the social worker to speak to the child's doctor. Assuming (without deciding) that the provision is a regulation with legal force, the provision is discretionary. The county must exercise discretion to determine what constitutes a "necessary" collateral contact. Many people may have knowledge of a child's condition. Deciding whom to deem a necessary contact requires balancing child safety, family preservation, and limited time and resources. The provision does not create a mandatory duty to contact particular individuals.
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