Thompson v. County of L.A. CA2/8 ( 2022 )

Filed 10/20/22 Thompson v. County of L.A. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
NATASHA THOMPSON, B307969 & B311569
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC687511
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark A. Young, Judge. Affirmed.
The Law Office of Cliff Dean Schneider and Cliff Dean
Schneider for Plaintiff and Appellant.
David Weiss Law, David J. Weiss, Nicholas A. Weiss, and
Skyla L. Gordon for Defendants and Respondents.
____________________
Natasha Thompson sued the County of Los Angeles and
other county defendants (the County) for removing her son, J.G.,
from her care.
The County demurred. The trial court sustained the
demurrer without leave to amend. It found the County was
immune from suit and Thompson failed to allege a mandatory
duty sufficient to overcome immunity. Thompson appealed
(appellate case No. B307969). She says she alleged a mandatory
duty and, in the alternative, the court should have allowed her to
amend her complaint.
The court later denied Thompson’s motion to tax expert
witness fees. Thompson appealed this ruling (appellate case No.
B311569).
We consolidated the two appeals for oral argument and
opinion. We affirm.
I
J.G. is the son of Natasha Thompson and Delmas Griffin.
On August 31, 2016, when he was four years old, J.G. fell at his
school’s playground. The fall fractured his arm. J.G. has a
developmental delay and was nonverbal.
Two days after the fall, J.G.’s parents took him to a doctor.
The doctor did not diagnose the fracture as abuse by J.G.’s
parents.
The principal at J.G.’s school called the Los Angeles Police
Department and reported physical abuse of J.G. by an unknown
party.
The Los Angeles County Department of Children and
Family Services investigated J.G.’s injury. A Department social
worker spoke to police officers, J.G.’s school principal, Thompson,
Griffin, and J.G. The social worker reported that when she asked
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J.G. who injured him, J.G. pointed to Griffin, J.G.’s father. The
social worker concluded J.G. was at risk of harm and took him
into protective custody on September 15, 2016. The Department
filed a Welfare and Institutions Code section 300 petition.
A juvenile court found there was prima facie evidence J.G.
was a child described in Welfare and Institutions Code section
300 and detention was appropriate.
On December 24, 2016, a forensic child abuse expert
reported J.G.’s injury could have been an accident.
On January 5, 2017, the juvenile court dismissed the
petition and released J.G. to his parents.
On December 19, 2017, Thompson and Griffin sued the
County in Los Angeles Superior Court. Only Thompson has
appealed. For readability, we refer to the trial court plaintiffs as
“Thompson.”
On February 16, 2018, Thompson filed a first amended
complaint. This complaint is not in our record. It apparently
contained state and federal claims.
The County removed the case to federal court, where
Thompson filed a second amended complaint. On March 11,
2019, the federal court granted motions for summary judgment in
the County’s favor for Thompson’s federal claims and remanded
the remaining claims to state court.
On October 8, 2019, Thompson filed another second
amended complaint in state court alleging two causes of action:
negligence per se and intentional infliction of emotional distress.
The County demurred.
The court sustained the demurrer and dismissed
Thompson’s claims with prejudice. The court concluded
Thompson did not allege a mandatory duty.
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After the court sustained the demurrer, the County filed a
memorandum of costs seeking $51,997.52. This figure included
$37,315 in expert fees. The form the County used specified the
expert fees were “per Code of Civil Procedure section 998.” That
section permits a defendant who makes a settlement offer that
the plaintiff does not accept to recover costs for expert witnesses
in certain circumstances. (Id., subd. (c)(1).)
Thompson moved to tax costs. As to the expert fees, her
motion said the fees should not be taxed for several reasons.
Thompson did not mention Code of Civil Procedure section 998 in
the motion.
The County opposed the motion and argued it was entitled
to fees under Code of Civil Procedure section 998 because it had
made a settlement offer in federal court. In reply, Thompson
argued for the first time that this section did not apply.
The trial court denied the motion to tax expert fees. The
court gave two grounds for its decision. First, Thompson gave no
legal authority to support her argument about why Code of Civil
Procedure section 998 did not apply. Second, Thompson waived
the argument by failing to raise it in her initial motion.
Thompson appealed the court’s rulings on the demurrer
and the motion to tax costs.
II
A
The trial court correctly sustained the demurrer. Because
Thompson attacks the trial court’s finding about the mandatory
duty exception to immunity, only, we limit our discussion to this
issue. The trial court properly found Thompson did not allege a
breach of a mandatory duty sufficient to overcome immunity.
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Although Thompson does not cite this provision in her
appellate briefing, her mandatory duty argument seems to be
about Government Code section 815.6, which says, “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.”
Liability under Government Code section 815.6 may only
be based on an enactment that creates an obligatory duty and
may not be based on a discretionary or permissive duty. (Haggis
v. City of Los Angeles (2000) 22 Cal.4th 490, 498.) It is not
enough that an enactment requires a public entity or officer to
perform a function if the function itself involves the exercise of
discretion. (Ibid.)
Thompson cites a provision that does not create a
mandatory duty. The provision comes from the state’s Child
Welfare Services Manual of Policies and Procedure. The
provision requires social workers to make “necessary collateral
contacts” with people “having knowledge of the condition” of
children subject to allegations. (Cal. Dept. of Social Services,
Child Welfare Services Manual of Policies and Procedures (eff.
April 8, 1994) p. 62, Div. 31, former Ch. 31-125.222 [eff. Oct. 1,
2016, amended Ch. 31-125.22 substantially includes the same
language].) Thompson says the County violated its duty to make
necessary collateral contacts by not speaking to J.G.’s doctor.
We assume without deciding that the collateral contacts
provision Thompson cites is a regulation with legal force. The
court in Scott v. County of Los Angeles (1994) 27 Cal.App.4th 1255
(Scott) found that provisions in the Manual adopted pursuant to
Welfare and Institutions Code section 16501 and the
Administrative Procedures Act have the force of law. (Scott, at p.
145.) Thompson cites Scott without explaining whether the
provision at issue in her case was adopted pursuant to these
laws. Because Thompson’s argument fails for other reasons, we
assume the provision she cites has legal force.
Thompson’s argument about the provision fails, however,
because the provision is discretionary. The County must exercise
discretion to determine what constitutes a “necessary” collateral
contact. In other words, the County must make contacts,
generally, but the decision to make contact with a particular
person is discretionary. This is logical because the universe of
people with “knowledge” of a child’s “condition” is vast. It could
include a child’s parents, siblings, grandparents, aunts, uncles,
cousins, school bus drivers, teachers, principals, school nurses,
classmates, friends, friends’ parents, neighbors, police officers,
doctors, and dentists, to name a few. When the County decides
whom to deem a necessary contact, it balances various interests:
child safety, family preservation, and limited time and resources.
This balancing requires the County to exercise discretion. The
provision does not create a mandatory duty to contact particular
individuals.
Thompson refers to a second provision, but she does not tell
us what that regulation says, nor does she say how it creates a
mandatory duty. She has therefore waived contentions about it.
(See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852.)
Thompson cites Scott, supra, 27 Cal.App.4th 125, but that
case does not support her position. The rule at issue in Scott
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required social workers to make monthly face-to-face contact with
children and foster parents. (Id. at p. 138.) A social worker could
make less frequent visits under certain circumstances, but only if
a supervisor approved this in writing. Despite reports of abuse
while the child was placed with the foster parent in Scott, the
social worker did not make monthly visits, and a supervisor had
not approved less frequent visits. The court held that monthly
visitation was a mandatory requirement. (Id. at pp. 139, 142.)
Scott therefore involved a specific obligation with no room to
exercise discretion. In contrast, as we explained, the provision
Thompson cites does not impose a clear and unequivocal
mandatory duty because determining who is a necessary contact
is inherently subjective and requires the exercise of discretion.
The trial court did not abuse its discretion by denying
Thompson leave to amend. Thompson has the burden to
establish a reasonable possibility she could amend the complaint
to state a claim. (See Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.) She says the determination of whether the
collateral contacts provision created a mandatory duty is a
factual issue and she “can likely identify more” collateral
contacts. As we explained, the collateral contacts provision gives
social workers discretion to determine which contacts are
necessary. As a matter of law, it does not create a mandatory
duty. Thompson’s assertion that she can identify other collateral
contacts is vague and does not establish a reasonable possibility
she can amend the complaint to state a claim. Furthermore, the
collateral contact provision would remain discretionary even if
Thompson were to name other contacts. The trial court properly
exercised its discretion.
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B
Turning to costs, Thompson waived her argument by failing
to raise it in her motion to tax costs. On appeal, she challenges
the expert witness fees, only. The trial court relied on waiver as
one ground for its ruling denying Thompson’s motion to tax these
fees. The court’s ruling was proper because the County requested
expert witness fees pursuant to Code of Civil Procedure section
998 and Thompson did not address this section in her motion. On
appeal, Thompson ignored the waiver ground in her opening brief
and she filed no reply brief. We affirm on the ground of waiver.
Because Thompson offers no challenge to this ground, we need
not and do not address her other arguments about expert witness
fees.
DISPOSITION
The judgment is affirmed. Costs are awarded to the
Respondents.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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