The opinion
Filed 11/13/24; Certified for Publication 12/5/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
COUNTY OF LOS ANGELES, B339093
Petitioner, (Super. Ct. No.
20STCV24771)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
EVANGELINA HERNANDEZ;
A.C., et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary
writ. Christian R. Gullon, Judge. Granted in part, denied in
part.
David Weiss Law, David J. Weiss, Jacqueline L. Shulman
and Margaret Bryne Ikeda; Pollak, Vida & Barer, Daniel P.
Barer, Karen M. Stepanyan for Petitioner.
No appearance for Respondent.
Rees Law Firm and Robert A. Rees; The Claypool Law
Firm, Brian E. Claypool, Nathalie Vallejos; Taylor & Ring, David
M. Ring and Sonya Ostovar, for Real Parties in Interest.
This case arises from the tragic death of four-year-old Noah
C., who was removed from and returned to his abusive parents’
custody multiple times before dying at their hands in July 2019.
Noah’s great-grandmother, Evangelina “Eva” Hernandez, in her
personal capacity and as successor in interest to Noah’s estate
and guardian ad litem for his minor siblings A.C., E.C., and R.C.,
sued the County of Los Angeles (County) and Hathaway-
Sycamores Child and Family Services (Hathaway) after Noah’s
death.
Currently at issue is the second cause of action for
negligence Hernandez asserts against the County in her seventh
amended complaint (7AC).1 The trial court overruled the
County’s demurrer to the cause of action, holding that the County
had a mandatory duty under Welfare and Institutions Code
section 361.3 (section 361.3) to notify Hernandez about a removal
warrant for Noah it obtained but failed to execute. The County
filed a petition for writ of mandate seeking to overturn the ruling.
This court issued an alternative writ directing the trial court to
1 The County also sought writ relief from the court’s
overruling of its demurrer to the eighth cause of action for
negligence, asserted on behalf of A.C., E.C., and R.C. We denied
the requested relief on August 23, 2024; the eighth cause of
action is no longer at issue here.
2
either vacate its order overruling the demurrer and enter a new
order sustaining the demurrer on the ground that section 361.3
does not impose a mandatory duty to notify a relative prior to the
physical removal of a dependent minor from parental custody, or
to show cause why a peremptory writ of mandate should not
issue. The trial court declined to vacate its order.
We now hold that section 361.3 does not impose on the
County a mandatory duty to notify a relative who requested
preferential consideration for placement of an application for a
protective custody warrant pursuant to Welfare and Institutions
Code section 340 or a court order granting such a warrant prior
to the minor’s removal from physical parental custody. We
further conclude that none of the other provisions invoked by
Hernandez in the 7AC—including the California Department of
Social Services Manual of Policies and Procedures for Child
Welfare Services (Manual), Civil Code section 1714, and the
special relationship doctrine—gives rise to a mandatory duty to
notify. Additionally, the 7AC does not plead facts supporting the
existence of a duty owed to Hernandez by the County or its
employees and accordingly does not state a claim for vicarious
liability under Government Code section 815.2. We therefore
grant the petition as to the second cause of action, vacate the
trial court’s order overruling the County’s demurrer to the second
cause of action, and remand the matter to the trial court with
directions to enter a new order sustaining the demurrer to the
second cause of action without leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Allegations
Hernandez makes the following relevant allegations in the
7AC. “Because this case comes to us at the demurrer stage, we
3
take as true all properly pleaded material facts — but not
conclusions of fact or law.” (Southern California Gas Leak Cases
(2019) 7 Cal.5th 391, 395.)
During Noah’s life, “[t]here were at least a dozen calls made
to the child abuse hotline and law enforcement from people who
said they suspected Noah and his siblings were being abused.”
The County Department of Children and Family Services (DCFS)
removed Noah from his parents’ custody “several times due to
neglect at the hands of his parents” and placed him in foster care
or with Hernandez. For example, he was removed from his
mother’s custody when he was six months old, due to a
substantiated allegation of child abuse involving another relative.
Noah was placed with Hernandez for about six months before he
was returned to his parents’ care. Hernandez also alleges Noah
was in protective custody from August 2014 to May 2015.
On October 4, 2016, allegations that Noah’s parents
generally neglected and abused him were substantiated. In
November 2016, the dependency court again declared Noah a
dependent based on allegations he was failing to thrive in his
parents’ care. The dependency court awarded Hernandez custody
of Noah and granted his parents monitored visitation. On
August 28, 2017, the court found Noah’s parents were making
progress toward reunification and liberalized their visitation to
unmonitored. The court further liberalized parents’ visitation to
include unmonitored overnight visits in November 2017.
At a May 29, 2018 review hearing, the dependency court
ordered DCFS to provide age-appropriate mental health services
to Noah, including conjoint counseling with both his parents.
DCFS retained mental health agency Hathaway to provide the
court-ordered services. Hernandez alleges that Hathaway
4
negligently provided these services and negligently concluded on
October 29, 2018 that Noah lacked any medical necessity for
therapy.
Prior to a hearing originally scheduled for November 1,
2018, DCFS recommended that the dependency court terminate
family reunification services. Relying on Hathaway’s negligent
opinion, the dependency court returned Noah to his parents over
the objection of DCFS on November 9, 2018. The dependency
court ordered that Hernandez have visitation with Noah.
In or about February 2019, a DCFS caseworker noted that
Noah, who was then four years old, appeared lethargic and
withdrawn. In March and April 2019, DCFS received three more
referrals concerning Noah, including a report that Noah arrived
at a hospital with bruises on his back. On or about May 13, 2019,
“reports were made” that Noah’s father “had an alcohol problem
and allegedly kicked Noah and his other minor children while out
in public.” Around the same time, DCFS caseworkers “learned of
allegations that Noah had been sodomized and had injuries to his
rectum consistent with sexual abuse.”
On or about May 15, 2019, DCFS caseworker Susan
Johnson filed a 26-page petition or application to remove Noah
from his parents’ custody.2 The dependency court granted the
2 Although the record indicates that Hernandez was granted
access to the confidential removal order dated May 15, 2019,
neither the application for removal nor the removal order
appears to have been filed with the 7AC or is in the record in this
case. The trial court granted the County’s motion to strike
paragraph 103 of the 7AC, which included an excerpt cut-and-
pasted from the petition, after finding that “the presiding judge of
the juvenile court has not approved that any portion of the
petition be used in the civil proceeding.”
5
application “authorizing Noah’s removal” the same day, “due to
probable cause to believe there was ‘substantial danger to the
safety or to the physical or emotional health of the child’ and
‘continuance in the home of the parent(s) and/or legal guardian
[was] contrary to the child’s welfare.’” The order also “mandated
a medical and/or sexual abuse examination pursuant to Welfare
& Institutions Code section 324.5 and/or Penal Code section
13823.11,” stating, “‘the exam shall be conducted within 72 hours
of this order unless the child requires protective custody, in
which case the exam shall be conducted within 72 hours of
protective custody.’” DCFS “willfully ignored” the order and no
examination took place. Noah remained in his parents’ care.
DCFS did not notify Hernandez about the application or the
order.
On or about June 18, 2019, DCFS prepared a “Structured
Decision Making” assessment for Noah, which stated there were
“‘current concerns for the mother’s mental health’” and “indicated
that the risk was ‘very high.’” Four other assessments
“throughout the years” ranked Noah’s risk as “high” or “very
high.” Noah remained with his parents.
On or about July 5, 2019, Noah’s parents called 911 and
reported that Noah was drowning in a swimming pool. An
ambulance rushed Noah to the hospital, where staff found signs
of trauma on his body and determined there were issues and
irregularities with his parents’ explanation of his cause of death.
Noah died on or about July 6, 2019. His parents were indicted on
murder and torture charges.3
3 The County’s demurrer to the 7AC, filed April 8, 2024,
asserts that on March 29, 2024, Noah’s father pled no contest to
6
II. Second Cause of Action for Negligence
In the second cause of action for negligence, which
incorporates and realleges the factual allegations above,
Hernandez alleges that DCFS had and breached duties to notify
her of dangers facing Noah; to notify her that it applied for,
obtained, and failed to execute a warrant to remove Noah from
his parents’ care; to notify her that its decision not to execute the
warrant lacked a factual basis because no DCFS decisionmakers
read the warrant or supporting documents; and to train its
employees on statutes, regulations, and County policies regarding
the provision of information to responsible relatives and
interested parties.
Hernandez alleges that “[h]ad DCFS complied with its
mandatory duty to notify Ms. Hernandez of the petition for
removal order and the issuance of the removal order for Noah,
she would have been able to notify the dependency court that
DCFS defied executing the removal order and that Noah did not
undergo a mandated forensic sexual abuse exam within 72 hours
of the date of the removal order.” She alleges DCFS “robbed” her
of the opportunity to inform the dependency court of DCFS’s
decision not to execute the warrant and “hire[ ] an attorney to
protect her rights and those of Noah’s.” She alleges that had
DCFS “fulfilled their duties and responsibilities, decedent Noah
C[.] would not have been injured and murdered.”
Hernandez alleges that DCFS’s duties to her arose from
multiple sources. We summarize these legal conclusions here.
first degree murder and torture, and Noah’s mother pled no
contest to second degree murder and torture. Hernandez made
the same representation to the trial court during the May 17,
2024 hearing on the demurrer.
7
First, Hernandez alleges that the Manual “contains
regulations that are binding and to be followed by County.” She
alleges that among these regulations is “Manual, Div. 31,
Handbook, 1514, thru 366.3” [sic] (Handbook), which itself
contains “Section 361.3 regarding the duty to notify a relative of a
dependent child” (Handbook Section 361.3). Handbook Section
361.3, titled “Assessment of Preferential Consideration for
Relatives,” largely tracks the statutory language of section 361.3,
which Hernandez also invokes as a source of mandatory duty and
which we will discuss at length below.
Hernandez highlights language in section 361.3 and
Handbook Section 361.3 regarding preferential consideration for
placement of dependent children with relatives, as well as
language stating, “The county social worker shall initially contact
the relatives given preferential consideration for placement to
determine if they desire the child to be placed with them.”
Hernandez points to the word “shall” and alleges that she met
the criteria to be given preferential consideration. Therefore, she
alleges, “County had an obligation to contact Ms. Hernandez of
[sic] the dependency court’s removal order, serving to notify her
of the removal order.” She further alleges that the Manual and
the Welfare and Institutions Code do “not differentiate between a
warrant being applied for and granted and a decision to execute
the warrant. A removal order equates to a removal and gives rise
to the duty to contact Ms. Hernandez.”
Hernandez next alleges that the County had a “policy” and
“common practice” of “[c]ontacting a relative like Ms.
Hernandez,” and such policy “is the equivalent of a regulation
and is required to be followed.” She alleges that a former DCFS
social worker, Lizbeth Hernandez Avila, gave deposition
8
testimony that “That’s the norm usually. When there is a
warrant being served, we notify parents and if they had a
previous placement that they were thriving in.”
Hernandez further alleges that Civil Code section 1714
imposed on DCFS a duty “to use reasonable care towards” her,
“and this duty required DCFS to notify her about Noah’s health
and safety, including that DCFS was petitioning the dependency
court to remove Noah from his parents because Noah was in
danger; that DCFS was seeking an order for a forensic
examination of sexual abuse of Noah; and also later that DCFS
decided not to execute the removal warrant or obtain the sexual
abuse forensic examination.” She additionally points to the order
granting the application for removal, which she alleges “created a
duty for DCFS to notify [Hernandez] because it knew she was the
only caregiver that Noah had thrived with, and [Hernandez]
would need to know about the petition and be provided with the
actual removal order to ensure that Noah was taken to the
forensic sexual abuse examination within 72 hours.”
Finally, Hernandez alleges DCFS had a “special
relationship” with her that required DCFS to notify her “about
Noah’s safety, and possible sexual abuse of Noah while he was in
his parent’s [sic] custody.” She alleges that she was Noah’s
primary caregiver “for more than half of his entire life,” and she
“possessed information about Noah unique from his parents.”
She further alleges that Noah had “‘psychologically bonded’” with
her and “always preferred to be with [Hernandez] instead of his
parents,” whom he “always vigorously resisted even visiting.”
Hernandez alleges DCFS knew the dependency court had
granted her visitation rights with Noah, which gave her “a right
to participate in court hearings that affected her visitation
9
rights” and “a corollary right to notice of any hearings that
affected Noah.” She alleges DCFS planned to place Noah with
her and knew that she “expected to be notified about Noah’s
safety, and possible sexual abuse of Noah while he was in his
parent’s [sic] custody,” and “its social workers were the only
source of information.” She alleges that Johnson’s failure to
check a particular box on the application for removal warrant is
“evidence of the duty,” and “serves as an admission by DCFS that
[Hernandez] was the only relative to be Noah’s caregiver and as
such should have been notified.”
III. Demurrer Proceedings
A. Demurrer
The County filed a demurrer, arguing that the second cause
of action failed to state a claim because it did not owe any
mandatory duties to Hernandez.4
The County first contended that section 361.3 did not
impose a mandatory duty to notify Hernandez. The County
argued that the purpose of section 361.3 “is to find suitable
placement for a child in DCFS custody, not to confer on relatives
rights to confidential information.” It further argued that section
361.3 did not apply, because by its terms it applies only when a
child is removed, and here “[t]he warrant was not executed, and
Noah was not taken into custody by DCFS in 2019.” It asserted
that there was no failure to prioritize Hernandez or any other
4 The County also argued that the second cause of action
failed due to a lack of causation: “Hernandez cannot draw a
causal connection between the alleged failure to advise her about
the warrant and Noah’s death because no one knows what the
Juvenile Dependency Court would have done at a detention
hearing following Noah’s removal from his parents.” The trial
court rejected this argument, and it is not at issue here.
10
prospective caregiver under section 361.3 because Noah “was not
removed from his parents between November 2018, when he was
reunified with them, and July 5, 2019, when he was killed.
Accordingly, . . . section 361.3 cannot serve as the mandatory
duty that was breached and resulted in the claimed injury.”
Next, the County contended that Handbook Section
361.3—which contains largely the same language as section
361.3—also did not impose a mandatory duty. First, the County
argued that Handbook Section 361.3 does not include great-
grandparents among the relatives entitled to preferential
consideration for placement. Second, the County argued that
only certain portions of the Manual qualify as mandatory
regulations, and Handbook Section 361.3 is not among them.
The County disputed Hernandez’s allegations that there
was a special relationship between DCFS and Hernandez that
gave rise to a duty to notify her. In addition to asserting that the
trial court sustained two previous demurrers due to inadequate
allegations of a special relationship, the County argued that no
special relationship could exist between Hernandez and the
County as a matter of law. It argued that “only a special
relationship between the tortfeasor and the victim of third-party
acts (Noah) or the third-party attacker (the parents) can create a
special relationship giving rise to a duty to protect or warn.” The
County additionally argued that the absence of a special
relationship or mandatory duty precluded the application of Civil
Code section 1714. It also asserted that confidentiality laws
governing dependency proceedings prohibited the disclosure of
information to Hernandez, who, despite her visitation rights, was
not Noah’s legal guardian, a party to the dependency
11
proceedings, or otherwise entitled to notice of the hearing under
Welfare and Institutions Code sections 290.1 and 290.2.
B. Opposition and Reply
Hernandez opposed the demurrer. She argued that section
361.3 and the Manual required DCFS to make “initial contact”
with her. She further contended that the “statute about
preferential treatment is . . . irrelevant when DCFS has
unanimously concluded that Noah would be placed with
[Hernandez] upon removal given [her] significant history with
Noah. [Hernandez] had preferential consideration in the eyes of
DCFS and should have been treated as such by being contacted
by DCFS.” Hernandez asserted that the County’s arguments
about the purpose of section 361.3 also were irrelevant “on
several fronts.” First, the duty at issue was to notify her of the
warrant, “not to disclose confidential information” to her. Second,
“throughout Noah’s life, DCFS was disclosing confidential
information to [Hernandez] about Noah. Lastly, the Court itself
found this to be an impractical application of the regulation as
contact about whether [Hernandez] would take Noah would
tacitly require communication about the removal order.”
Hernandez additionally rejected the County’s argument that
Handbook Section 361.3 was not a regulation.
Hernandez contended that the County’s argument
regarding Civil Code section 1714 was “irrelevant,” because that
statute “can establish vicariously [sic] liability under Govt Code
§ 815.2 and . . . the Court has specifically permitted these
allegations.” She also argued that the trial court had permitted
her to allege a special relationship, which was “highly fact
dependent” and “cannot be resolved at the pleading stage where
the parties do not have all the facts.” Additionally, she asserted
12
that the County’s arguments about confidentiality were
“nonsensical” because the second cause of action was based on the
County’s failure to contact her “with the information the County
was compelled by law to share” with her, the County had shared
information with her in the past, and the County had not
identified any authority prohibiting it from contacting her about
the removal warrant1.
In its reply, the County primarily reiterated the arguments
asserted in the demurrer. It additionally asserted that “in May
2019, there was not even a discretionary duty to involve
Hernandez in decisions about Noah’s possible removal because
the warrant was never exercised. A decision not to execute the
warrant issued May 15, 2019 was also discretionary and did not
violate any state or DCFS policy or procedure adopted as a
regulation.”
C. Hearing
At the hearing on the demurrer, the County argued that
section 361.3 and Handbook Section 361.3 could not give rise to a
mandatory duty to notify Hernandez because they “expressly
apply only after a child is removed from his parents’ physical
custody,” and the 7AC “specifically alleges Noah was not removed
from his parents’ physical custody.” It further asserted that
Hernandez did not have a special relationship with the County
and had not pointed to any statute or regulation “that imposes a
mandatory duty on the County to inform any relative when
DCFS is petitioning the court to remove a child as opposed to
when the child is actually removed from his parents’ physical
custody.”
The County further argued that “[e]verything having to do
with the warrant, the decision to apply for a warrant, is
13
discretionary. The decision not to execute a warrant or whether
to execute a warrant is discretionary. . . . Because it was done
through the exercise of discretion, it cannot support the existence
of a mandatory duty, and Ms. Hernandez cannot state a valid
cause of action.” The County asserted that “a removal warrant
“is not an order for removal. It is an authorization for removal.
And that order has a duration of ten days, so that the County
specifically can conduct continuing investigations to determine
whether an exercising of the warrant, which is a significant thing
to do to a child, continues to be appropriate.”
The County continued, “It is an authorization for removal
based on a finding by the court that there is evidence that the
child is in [sic] risk of harm if not removed.” It contrasted this
with the portion of the order requiring the forensic exam, which
the County acknowledged was mandatory but “was not followed.”
It then read the following language from the order into the
record: “‘A protective custody warrant is issued for the child
named above pursuant to WIC 340, subdivision (b). DCFS is
authorized to remove the child named above and the child shall
be detained from his or her’ – with check boxes – ‘mother, father,
legal guardian, pending Welfare and Institution Code [sic] section
319 hearing, unless upon further investigation, mandated
pursuant to WIC 340 subdivision (c), DCFS determines that
services could be put in place to maintain the child’s safety in his
home pending . . . hearing.”
In response, Hernandez argued that “this removal order
was not discretionary.” Hernandez asserted that the order
“stated that Noah shall – the word shall was used – be subjected
to a forensic sexual exam within 72 hours of the date of that
removal order,” and he “needed to be removed to be subjected to a
14
forensic sexual abuse exam.” She asserted that it was “illogical”
to “parse out parts of that removal order that are discretionary
and parts that are not discretionary.” Hernandez further
asserted that the Manual used the language “upon a removal
order,”5 which “doesn’t mean the child has to be removed” before
the County is required to contact relatives given preferential
consideration for placement. She also argued that the
dependency court already had jurisdiction over Noah at the time
the application for removal warrant was made, and “that’s not
the same as making a discretionary decision whether to interfere
with the parents’ custody rights” in the first instance. Hernandez
also asserted that deposition testimony had revealed that no
DCFS supervisors “looked at the application for the removal
order that Susan Johnson prepared” or “read the removal order,”
indicating that no discretion was exercised.
D. Ruling
On May 30, 2024, approximately two weeks after the
hearing, the court issued a written order overruling the
demurrer. The court focused its analysis on the order the
dependency court issued on May 15, 2019; aside from the portion
read into the record at the demurrer hearing, this order is not in
the appellate record.
The court found that the “plain language of the dependency
court order is unambiguous.” It “signals that DCFS has the
authority to remove Noah and that Noah shall be detained from
his parents . . . unless the County determines, based upon the
forensic examination results, that Noah can safely remain with
his parents. . . .” Because DCFS did not conduct the forensic
5 This language appears in a different provision in the
Manual, not in Handbook section 361.3.
15
examination, the court reasoned, there was no determination
that Noah could safely reside with his parents, and therefore he
was required to be removed and detained. The court further
concluded that the order “was not merely giving the County
authorization/permission to at some random point in time on
some random date under some random situation to remove Noah.
Instead, [the dependency court] crafted a specific order based
upon a specific request when DCFS petitioned the dependency
court to remove Noah from his parents because Noah was in
danger.” Accordingly, the order “can readily be interpreted as an
official approval of DCFS removing Noah because the
examination results would have shown sexual assault.”
The court further concluded that the County “misconstrues
what it means to exercise discretion.” It found that because no
DCFS supervisors read the application or order, “no discretion
was used.” Citing factual allegations from the 7AC regarding
DCFS’s alleged awareness that Noah had been sodomized, the
court continued, “had the County done what it was mandated to
do—submit Noah to a forensic sexual abuse exam—the results
would have revealed that no safety measures could keep Noah
with his parents because Noah was sexually abused by his
father.” Therefore, DCFS “had to detain and remove Noah,”
which would have triggered section 361.3. And under that
statute, Hernandez, “as a relative given preferential
consideration, must have been notified of the removal. Had
[Hernandez] been notified, as she alleges, she would have taken
whatever action necessary to ensure Noah’s safety. And, most
importantly, had Noah been placed with [Hernandez], he would
have been here today.” The court thus concluded Hernandez “has
16
sufficiently pled that the County breached the mandatory duty
owed to her under WIC section 361.3.”
The court briefly addressed some of the County’s other
arguments. Regarding confidentiality, it concluded that both
section 361.3 and Handbook Section 361.3 “allow for the
disclosure of details regarding the minor’s removal,” such that
“this argument fails to defeat the sufficiency of the pleading.”
The court further concluded that the County “too narrowly reads
the section of the Manual” containing Handbook Section 361.3.
The court found that although Handbook Section 361.3 does not
list great-grandparents as relatives entitled to preferential
consideration, it still required DCFS to contact Hernandez
because she was a relative. It also noted that section 361.3 does
include great-grandparents, and “[i]f there is a conflict between a
statute and a regulation, the statute prevails.” The court
concluded that it “need not address whether there is a special
relationship” between the County and Hernandez, and further
concluded that the argument regarding Civil Code section 1714
was moot in light of its determination “that a mandatory duty
exists via regulation and statute.”
IV. Writ Proceedings
On July 5, 2024, the County petitioned this court for a
peremptory writ of mandate directing the trial court to sustain
the demurrer to the second cause of action. The County argued
that writ review was appropriate because the matter presented a
first-impression question of whether the County owed Hernandez
a mandatory duty, the second cause of action would “greatly
expand the County’s potential exposure,” and the trial court’s
order was “both clearly erroneous as a matter of law and
substantially prejudice[d] the petitioner’s case . . . in a manner
17
that cannot be corrected on appeal.” Substantively, the County
argued that it could only be held liable for decisions relating to
child placement if they violated a mandatory duty, and neither
section 361.3 nor any other provision imposed such a duty.
Hernandez, as the real party in interest, filed a preliminary
opposition to the writ petition. She argued that the petition
should be summarily denied because the issues presented were
not dispositive, the County had an adequate remedy at law, and
granting writ review would cause “piecemeal litigation.” The
County filed a reply urging writ review and disputing
Hernandez’s contentions.
On August 23, 2024, a panel of this court issued an
alternative writ directing the trial court to either “(a) after notice
to the parties and an opportunity to be heard pursuant to Brown,
Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th
1233, 1250, fn. 10, vacate the May 30, 2024 order overruling
petitioner’s demurrer only to the second cause of action in the
seventh amended complaint, and issue a new order sustaining
the demurrer to the second cause of action on the ground that
Welfare and Institutions Code section 361.3, subdivision (a) does
not impose a mandatory duty on petitioner or its agents to notify
a relative (who requested preferential consideration for
placement) of the application for a protective custody warrant
pursuant to Welfare and Institutions Code section 340 or a court
order granting such a warrant before a dependent minor is
removed from the physical custody of his or her or their parents;”
or (b) show cause before this court on October 10, 2024 why a
peremptory writ of mandate should not issue on the ground that
petitioner has demonstrated entitlement to relief.
18
The trial court did not vacate the order or issue a new order
sustaining the demurrer to the second cause of action. Counsel
for Hernandez and the County filed additional briefing and
appeared before this court on October 10, 2024.
DISCUSSION
I. Propriety of Writ Review
“Even though a trial court’s order overruling a demurrer is
subject to review on appeal from the final judgment, an appellate
court has the option to review such an order prior to final
judgment through a writ of mandate.” (California Dept. of Tax &
Fee Administration v. Superior Court (2020) 48 Cal.App.5th 922,
929.) An appeal is presumed to be an adequate remedy at law,
but writ review may be appropriate where the remedy by appeal
would in fact be inadequate, where the writ presents a significant
issue of law or an issue of widespread or public interest, or where
resolution of the issue would result in a final disposition as to the
petitioner. (Ibid.; County of San Bernardino v. Superior Court
(The Red Brennan Group) (2022) 77 Cal.App.5th 1100, 1106 (Red
Brennan).) Here, we agree with the County that this matter
presents a significant issue of law: whether the County has a
duty to notify a relative of an application for a protective custody
warrant pursuant to Welfare and Institutions Code section 340 or
a court order granting such a warrant before a dependent minor
is removed from the physical custody of his or her or their
parents. We accordingly grant review.
II. Standard of Review
Our review of the trial court’s order overruling the
demurrer is de novo. (Red Brennan, supra, 77 Cal.App.5th at p.
1107.) We ask whether the operative complaint states facts
sufficient to state a cause of action and, if so, whether it also
19
discloses a defense or other bar to recovery. (California Dept. of
Tax & Fee Administration v. Superior Court, supra, 48
Cal.App.5th at p. 929.) In undertaking this inquiry, we accept all
properly pled material facts as true. (Ibid.) “‘If the complaint
states a cause of action under any theory, regardless of the title
under which the factual basis for relief is stated, that aspect of
the complaint is good against a demurrer.’” (Thomas v. Regents
of University of California (2023) 97 Cal.App.5th 587, 605.)
III. Principles Governing Public Entity Liability
“Under the California Government Claims Act, all
government tort liability must be based on statute.” (Red
Brennan, supra, 77 Cal.App.5th at p. 1107, citing Gov. Code,
§ 810 et seq.) This fundamental principle is enshrined in
Government Code section 815, which “establishes that public
entity tort liability is exclusively statutory.” (C.A. v. William S.
Hart High School Dist. (2012) 53 Cal.4th 861, 868; see also id. at
p. 872 [“public entity liability is statutory in nature”].) The
relevant statutory basis for direct public entity liability is
Government Code section 815.6, which provides, “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.” (Gov. Code, § 815.6.)
Government Code section 815.6 “has three elements that
must be satisfied to impose public entity liability: (1) a
mandatory duty was imposed on the public entity by an
enactment; (2) the enactment was designed to protect against the
particular kind of injury allegedly suffered; and (3) the breach of
20
the mandatory duty proximately caused the injury.” (B.H. v.
County of San Bernardino (2015) 62 Cal.4th 168, 179 (B.H.).)
The Government Code defines an “enactment” as “a
constitutional provision, statute, charter provision, ordinance, or
regulation.” (Gov. Code, § 810.6.) Provisions in the Manual
adopted pursuant to Welfare and Institutions Code section 16501
and the Administrative Procedures Act may qualify as
enactments. (Thompson v. County of Los Angeles (2022) 85
Cal.App.5th 376, 380 (Thompson); see also Scott v. County of Los
Angeles (1994) 27 Cal.App.4th 125, 145 [regulations in the
Manual “have the force of law”].)
“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.”
(Thompson, supra, 85 Cal.App.5th at p. 380.) “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.; B.H., supra, 62 Cal.4th at p. 180.) Courts have construed
this requirement “rather strictly, finding a mandatory duty only
if the enactment ‘affirmatively imposes the duty and provides
implementing guidelines.’” (Guzman v. Count of Monterey (2009)
46 Cal.4th 887, 898 (Guzman).)
A plaintiff must allege a breach of a mandatory duty to
impose direct liability on a public entity under Government Code
section 815.6. (See Thompson, supra, 85 Cal.App.5th at p. 380;
Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d
792, 802 [“to state a cause of action every fact essential to the
existence of statutory liability must be pleaded with
particularity, including the existence of a statutory duty”].)
“Duty cannot be alleged by simply stating ‘defendant had a duty
21
under the law’; that is a conclusion of law, not an allegation of
fact. The facts showing the existence of the claimed duty must be
alleged.” (Searcy, supra, 177 Cal.App.3d at p. 802.) “Since the
duty of a governmental agency can only be created by statute or
‘enactment,’ the statute or ‘enactment’ claimed to establish the
duty must at the very least be identified.” (Ibid.) “‘“Whether a
particular statute is intended to impose a mandatory duty, rather
than a mere obligation to perform a discretionary function, is a
question of statutory interpretation for the courts.” [Citations.]
We examine the “language, function and apparent purpose” of
each cited enactment “to determine if any or each creates a
mandatory duty designed to protect against” the injury allegedly
suffered by plaintiff.’” (B.H., supra, 62 Cal.4th at pp. 180-181,
quoting Guzman, supra, 46 Cal.4th at p. 898.)
A public entity may also have vicarious liability under
Government Code section 815.2. That statute provides that 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.” (Gov. Code, § 815.2, subd. (a).)
The vicarious liability created by Government Code section 815.2
“is a primary basis for liability on the part of a public entity, and
flows from the responsibility of such an entity for the acts of its
employees under the principle of respondeat superior.” (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1128.) Public
employees generally are liable for injury caused by their own acts
or omissions to the same extent as private citizens (Gov. Code,
§ 820, subd. (a)), and the public employer is vicariously liable
unless the employee is immune from liability (Gov. Code, § 815.2,
22
subd. (b)). (See Tom Jones Enterprises, Ltd. v. County of Los
Angeles (2013) 212 Cal.App.4th 1283, 1291.) The existence and
extent of the public employer’s vicarious liability is determined
by the scope of the duty legally attributed to its employees.
(Torsiello v. Oakland Unified School District (1987) 197
Cal.App.3d 41, 45.) “Whether a duty exists is a question of law to
be resolved by the court.” (Brown v. USA Taekwondo (2021) 11
Cal.5th 204, 213 (Brown).)
IV. Analysis
As summarized above, the 7AC identifies several putative
bases for a duty owed to Hernandez by the County: section 361.3;
Handbook Section 361.3; County policy; Civil Code section 1714;
the special relationship doctrine; the County’s plans to place
Noah with Hernandez; a check box on the application for removal
warrant; and Hernandez’s visitation rights with Noah.6 We
conclude that none of these provisions or facts imposed a duty on
the County to notify Hernandez of the warrant proceedings
concerning Noah.
A. Section 361.3
At all times relevant in this case7, section 361.3 provided,
“In any case in which a child is removed from the physical custody
6 Notably, the 7AC does not invoke any of the several
statutory provisions expressly requiring social services to provide
notice of certain dependency proceedings to enumerated parties.
(See Welf. & Inst. Code, §§ 290.1-297.) None of those provisions
refers to applications for removal warrants or requires notice be
given to great-grandparents or previous caregivers.
7 Section 361.3 was amended effective September 27, 2024.
(See Stats. 2024, c. 656, § 16.) Revisions included the addition of
subdivision (g), which concerns placement of an Indian child, and
23
of his or her parents pursuant to Section 361, preferential
consideration shall be given to a request by a relative of the child
for placement of the child with the relative, regardless of the
relative’s immigration status.” (Former § 361.3, subd. (a)
[effective January 1, 2018 through September 26, 2024],
emphasis added.) It further provided, “The county social worker
shall initially contact the relatives given preferential
consideration for placement to determine if they desire the child
to be placed with them. Those desiring placement shall be
assessed according to the factors enumerated in this subdivision.
. . . The court shall authorize the county social worker, while
assessing these relatives for the possibility of placement, to
disclose to the relative, as appropriate, the fact that the child is
in custody, the alleged reasons for the custody, and the projected
likely date for the child's return home or placement for adoption
or legal guardianship.” (Former § 361.3, subd. (a)(8)(B).) It
defined “relative” as “an adult who is related to the child by
blood, adoption, or affinity within the fifth degree of kinship,
including stepparents, stepsiblings, and all relatives whose
status is preceded by the words ‘great,’ ‘great-great,’ or ‘grand,’ or
the spouse of any of these persons even if the marriage was
terminated by death or dissolution.” (Former § 361.3, subd.
(c)(2).) Preferential consideration “means that the relative
seeking placement shall be the first placement to be considered
and investigated.” (Former § 361.3, subd. (c)(1).) The statute did
not “guarantee that the child will be placed with any person so
identified.” (Former § 361.3, subd. (a)(8)(B).)
stylistic changes such as replacing the phrases “his or hers” and
“him or her” with, respectively, their and them. None of the
revisions affects the analysis here.
24
The County contends that the first sentence of the statute
establishes that it does not apply to the facts alleged in the
second cause of action and 7AC generally. We agree. Section
361.3 governs placement of a child “[i]n any case in which a child
is removed from the physical custody of his or her parents.” It
applies “when a child is taken from [his or] her parents and
placed outside the home pending the determination whether
reunification is possible,” or “whenever a child must be moved”
from one placement to another. (In re A.K. (2017) 12 Cal.App.5th
492, 498.) “The correct application of the relative placement
preference places the relative ‘at the head of the line when the
court is determining which placement is in the child’s best
interests.’” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th
1023, 1033.)
The gravamen of the second cause of action is that Noah
was not removed from his parents. There are no allegations in
the 7AC that Noah was removed from his parents or moved from
one placement to another pursuant to the May 15, 2019
application or order. Absent a removal of a child from the
physical custody of his or her parents, section 361.3 does not
apply. It therefore cannot give rise to a mandatory duty here,
regardless of how its remaining language is interpreted.
Hernandez argues that the County “makes an
extraordinarily tortured interpretation of Welf. and Inst. § 361.3.”
She asserts that although the statute expresses “a legislative
preference that after a child is removed, her [sic] or she should be
placed with a relative,” it does “not require the child to be
removed before the social worker begins the assessment of a
future caretaker.” She contends it is “absurd” and “makes no
sense to take a child into custody before determining whether the
25
potential new custodian is willing to accept the placement,”
because “[s]ocial workers would have to place the removed child
in some interim ‘holding area’ before and during the assessment.”
Hernandez does not cite any authority in support of these
arguments, and they are not persuasive. The plain language of
section 361.3 provides that relatives are given preferential
consideration for placement when “a child is removed from the
physical custody of his or her parents.” The expression of
legislative intent set forth in Welfare and Institutions Code
section 16000, subdivision (a) mirrors this unambiguous
language, stating, “It is the intent of the Legislature to preserve
and strengthen a child’s family ties whenever possible. . . . If a
child is removed from the physical custody of his or her parents,
preferential consideration shall be given whenever possible to the
placement of the child with relatives. . . .” (Welf. & Inst. Code,
§ 16000, subd. (a).) The 7AC does not allege Noah was removed.
Hernandez correctly observes that the plain language of
section 361.3 does not specify when the “social worker shall
initially contact the relatives.” In light of the statute’s express
requirement that the child be removed from the custody of their
parents, the most reasonable interpretation is that this contact
also should occur after removal.8 This interpretation also aligns
8 We note that Welfare and Institutions Code section 309
provides, “Upon delivery to the social worker of a child who has
been taken into temporary custody under this article, the social
worker shall immediately investigate the circumstances of the
child and the facts surrounding the child's being taken into
custody and attempt to maintain the child with the child's family
through the provision of services.” (Welf. & Inst., § 309, subd. (a),
emphasis added.) It further provides, “If the child is removed, the
26
with the “strong public policy of confidentiality of juvenile
records” (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329,
1337) and the Legislature’s expressed “belief that juvenile court
records, in general, should be confidential” (Welf. & Inst. Code,
§ 827, subd. (b)(1)). Indeed, the confidentiality provision cited by
the County, Welfare and Institutions Code section 827, provides
that “information relating to the content of the juvenile case file,
may not be disseminated by the receiving agencies to a person or
agency, other than a person or agency authorized to receive
documents pursuant to this section.” (Welf. & Inst. Code, § 827,
subd. (a)(4).) Neither former caregivers nor relatives including
great-grandparents are included among the list of persons
authorized to receive such information. (See id., subd. (a)(1).)
However, to the extent the statute may permit pre-removal
contact of relatives, it does not require it. It therefore does not
impose a mandatory duty on the County. “‘To construe a statue
as imposing a mandatory duty on a public entity, “the mandatory
nature of the duty must be phrased in explicit and forceful
language.” [Citation.] “It is not enough that some statute
contains mandatory language. In order to recover plaintiffs have
to show that there is some specific statutory mandate that was
violated by the [public entity]. . . .”’ (Guzman, supra, 46 Cal.4th
at pp. 910-911.) Section 361.3 does not meet this standard.
social worker shall conduct, within 30 days, an investigation in
order to identify and locate all adult relatives of the child” and
notify them of the removal and “[a]n explanation of the various
options to participate in the care and placement of the child and
support for the child’s family. . . .” (Welf. & Inst. Code, § 309,
subd. (e)(1), emphasis added.)
27
To avoid the conclusion that section 361.3 only applies
when a child is removed, Hernandez alleges that the dependency
court’s May 15, 2019 “removal order equates to a removal and
gives rise to the duty to contact Ms. Hernandez.” This allegation
is a conclusion of law, which we disregard when ruling on a
demurrer. (Southern California Gas Leak Cases, supra, 7 Cal.5th
at p. 395.) Moreover, it is unsupported by any authority or the
text of the order at issue as read into the record at the demurrer
hearing. As read into the record, the order provided that “DCFS
is authorized to remove the child named above and the child shall
be detained from his or her . . . mother, father, legal guardian,
pending Welfare and Institution Code [sic] section 319, unless
upon further investigation, mandated pursuant to WIC 340
subdivision (c), DCFS determines that services could be put in
place to maintain the child’s safety in his home pending . . .
hearing.” An authorization to remove a child unless further
investigation reveals there is no need to do so is not a mandate to
remove a child. (See B.H., supra, 62 Cal.4th at pp. 191-192 [“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”].) Even if it were, the 7AC
provides no factual allegations from which to conclude that a
mandate to remove a child is equivalent to the physical removal
of the child.
For all these reasons, we conclude section 361.3 does not
give rise to a mandatory duty to notify a relative who requested
preferential consideration for placement of an application for a
protective custody warrant pursuant to Welfare and Institutions
28
Code section 340 or a court order granting such a warrant prior
to the minor’s removal from physical parental custody.
B. Handbook Section 361.3
In the 7AC, Hernandez alleges that Handbook Section
361.3 independently requires the County to notify a caregiver
about an anticipated removal. Like section 361.3, that provision
begins,9 “In any case in which a child is removed from the
physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative
of the child for placement of the child with the relative.” It also
provides, “The county social worker shall initially contact the
relatives given preferential consideration for placement to
determine if they desire the child to be placed with them.”
Unlike section 361.3, it limits the universe of relatives given
preferential consideration for placement to “an adult who is a
grandparent, aunt, uncle, or sibling.”
The County acknowledges that provisions in the Manual
can qualify as enactments and therefore give rise to mandatory
duties. It argues that this particular provision does not qualify
as an enactment, however, because it is part of the Handbook
rather than the Manual, and the Handbook has not been adopted
as regulations pursuant to the Administrative Procedures Act.
Hernandez contends Handbook Section 361.3 is a mandatory
regulation.
9 The 7AC alleges the provision begins, “Where the court has
ordered removal of a child from the physical custody of his or her
parents pursuant to section 361, the court shall consider whether
the family ties and best interest of the minor will be served by
granting visitation rights to the minor’s grandparents.” As
previously noted, that language is contained in Handbook Section
361.2, subdivision (f), not Handbook Section 361.3.
29
The distinction, if any, between the Handbook and the
Manual is unclear. However, even if we assume for purposes of
this opinion that Handbook Section 361.3 is an enactment that
can give rise to a mandatory duty, we conclude it does not give
rise to any such duty here. The pertinent language in Handbook
Section 361.3 is identical to the pertinent language in section
361.3. It therefore fails to give rise to a mandatory duty for the
exact same reasons as section 361.3 does.
C. County Policy and Civil Code Section 1714
The 7AC alleges that the County had a policy of contacting
relatives “like Ms. Hernandez” who previously had custody of a
child before removal of the child and “a policy created by a public
entity is the equivalent of a regulation and is required to be
followed.” According to the 7AC, the policy was a “norm”
pursuant to which the County notified parents and any “previous
placement that they [the child] were thriving in” “[w]hen there is
a warrant being served.” The County argues that “an agency’s
internal policy cannot impose a mandatory duty upon a public
agency unless formally adopted as a regulation under the
Administrative Procedures Act.”
Regardless of whether the policy was formally adopted as a
regulation, the facts alleged in the 7AC do not support its
application. The 7AC alleges that the warrant was never served
or executed. Yet the policy cited provides for notification of a
child’s previous placement “[w]hen there is a warrant being
served.” As no warrant was served, there would be no basis to
apply the policy. The 7AC’s assertion that Hernandez “should
have been notified of the application for removal” is a conclusion
of law that does not establish the existence of a duty for the
purposes of a demurrer.
30
Hernandez also argues that the policy “sets a standard of
care under [Civil Code] § 1714,” and “[v]iolation of a department
policy is evidence of negligence and raises a fact issue.” Civil
Code section 1714 states that “Everyone is responsible, not only
for the result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or skill
in the management of his or her property or person, except so far
as the latter has, willfully or by want of ordinary care, brought
the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)
The Supreme Court has explained that this statute “establishes
the default rule that each person has a duty ‘to exercise, in his or
her activities, reasonable care for the safety of others.’” (Brown,
supra, 11 Cal.5th at p. 214.)
The 7AC alleges that Civil Code section 1714 imposed on
the County a duty to use reasonable care toward Hernandez,
which required it “to notify her about Noah’s health and safety,
including that DCFS was petitioning the dependency court to
remove Noah from his parents because Noah was in danger; that
DCFS was seeking an order for a forensic examination of sexual
abuse of Noah; and also later that DCFS decided not to execute
the removal warrant or obtain the sexual abuse forensic
examination.” The County argues that “the general duty under
section 1714 alone does not impose a duty to warn a person of
potential injury to another person,” and that any employees
involved were immune from liability under Government Code
section 820.2 because their actions were discretionary.
Hernandez responds that “Section 1714 can support vicariously
[sic] liability under Govt Code § 815.2,” and “[n]othing in law or
logic” supports the County’s suggestion “that any § 1714 liability
31
is inherently precluded by discretionary immunity under Govt.
Code § 820.2.”
We need not reach the question of immunity because we
find no duty. (See Davidson v. City of Westminster (1982) 32
Cal.3d 197, 201-202 [“the question of the applicability of a
statutory immunity does not even arise until it is determined
that a defendant otherwise owes a duty of care to the plaintiff
and thus would be liable in the absence of such immunity”].)
Civil Code section 1714 “standing alone, fails to provide the
requisite statutory basis for public entity liability required by
Government Code sections 815 and 815.6.” (Eastburn v. Regional
Fire Protection Authority (2003) 31 Cal.4th 1175, 1182.) It may,
however, support liability under Government Code section 815.2
if it imposes a duty of care upon the public entity’s employees—
who need not be specifically identified in the complaint. (See
County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th
627, 644.)
Civil Code section 1714 “states a broad rule, but it has
limits.” (Brown, supra, 11 Cal.5th at p. 214.) It imposes a general
duty of care on a defendant “only when it is the defendant who
has ‘“created a risk’” of harm to the plaintiff, including when ‘“the
defendant is responsible for making the plaintiff’s position
worse.’” (Ibid.) “The law does not impose the same duty on a
defendant who did not contribute to the risk that the plaintiff
would suffer the harm alleged. Generally, the ‘person who has
not created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another’ from that peril.”
(Ibid.)
Here, the primary harm alleged is Noah’s suffering and
death at the hands of his parents. The 7AC alleges that “DCFS
32
could easily foresee that leaving Noah in a dangerous situation
would lead to significant harm, which it did for Noah, whose
death was closely connected to DCFS’ failure to notify”
Hernandez of the application for removal and removal warrant.”
It further alleges that Hernandez “would have informed the
dependency court and hired an attorney to protect her rights and
those of Noah’s [sic],” and “decedent Noah C[.] would not have
been injured and murdered.” These allegations do not allege a
risk to Hernandez or impose upon the County a duty to notify her
of confidential proceedings. To the extent the 7AC alleges that
Hernandez suffered the loss “of the life-long love, companionship,
comfort, society, and care of Noah C[.], protection, affection,
moral support, [and] guidance,” this peril was created by Noah’s
parents. The County thus did not have a duty to Hernandez
under section 1714 unless an exception to the general rule
applied. (See Brown, supra, 11 Cal.5th at p. 215.) The exception
invoked here, the special relationship doctrine, is addressed
below.
D. Special Relationship
The general rule is that a person or entity owes no duty to
control the conduct of another person or entity, nor to warn those
endangered by such conduct. (Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1129 (Zelig).) “In most instances, these
general rules bar recovery when plaintiffs, having suffered injury
from third parties who were engaged in criminal activities, claim
that their injuries could have been prevented by timely
assistance from a law enforcement officer.” (Ibid.) However, “[i]n
a case involving harm caused by a third party, a person may have
a duty to protect the victim of another’s harm if that person is in
what the law calls a ‘special relationship’ with either the victim
33
or the person who created the harm.” (Brown, supra, 11 Cal.5th
at p. 215.) “A special relationship between the defendant and the
victim is one that ‘gives the victim the right to expect’ protection
from the defendant, while a special relationship between the
defendant and the dangerous third party is one that ‘entails an
ability to control [the third party’s] conduct.’” (Id. at p. 216.)
“Relationships between parents and children, colleges and
students, employers and employees, common carriers and
passengers, and innkeepers and guests, are all examples of
special relationships that give rise to a duty to protect.” (Ibid.)
In the 7AC, Hernandez alleges DCFS had a special
relationship with her that required it to notify her “about Noah’s
safety, and possible sexual abuse of Noah while he was in his
parent’s [sic] custody.” She alleges she was a victim who had a
right to expect protection from DCFS. The County does not
dispute Hernandez’s premise that a special relationship may give
rise to vicarious public entity liability. It argues that “Hernandez
was not the victim; Noah was.”
To the extent Hernandez’s mere allegation of a special
relationship amounts to something other than a conclusion of a
law, we agree with the County that Noah was the victim in a
special relationship with the County. Hernandez’s arguments
here underscore Noah’s status as the victim. She asserts that
“DCFS could easily foresee that leaving Noah in a dangerous
situation would lead to significant harm, which it did.” Noah
tragically suffered harm, abuse, and death at his parents’ hands;
Hernandez did not. Hernandez also asserts that her special
relationship with DCFS “includ[ed] her visitation rights”—with
Noah—and her “duties as the caregiver”—of Noah. While her
visitation rights may evince a beneficial relationship between her
34
and Noah (see Welf. & Inst. Code, § 361.2, subd. (i)), Hernandez
does not cite any authority to support the argument that these
facts establish a special relationship between her and the County.
E. Other Alleged Sources of Duty
The 7AC alleges that Hernandez’s visitation rights, the
County’s plans to place Noah with her upon any removal, and its
failure to check a box on the removal application all
independently gave rise to a duty to notify Hernandez of the
application for removal warrant and the proceedings thereon.
Hernandez appears to have abandoned the checkbox argument; it
is not mentioned in her return. Her allegations related to
visitation rights and desire for preferential consideration for
placement are subsumed within other alleged duties already
discussed, namely those imposed under section 361.3, Handbook
Section 361.3, and the special relationship doctrine. We need not
and do not discuss them further here.
DISPOSITION
The petition for extraordinary writ is granted in part. Let
a writ of mandate issue directing the superior court to vacate its
May 30, 2024, order to the extent it overrules the demurrer to the
second cause of action in the seventh amended complaint. The
court shall issue a new and different order sustaining the
demurrer to the second cause of action without leave to amend.
In all other respects, the petition for extraordinary writ is denied.
The County of Los Angeles is awarded their costs.
COLLINS, J.
We concur:
CURREY, P. J. ZUKIN, J.
35
Filed 12/5/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
COUNTY OF LOS ANGELES, B339093
Petitioner,
(Los Angeles County
Super. Ct. No.
v.
20STCV24771)
THE SUPERIOR COURT OF
ORDER CERTIFYING
LOS ANGELES COUNTY,
OPINION FOR
Respondent; PUBLICATION
EVANGELINA HERNANDEZ;
A.C., et al.,
Real Parties in Interest.
THE COURT
The opinion in the above-entitled matter filed on November
13, 2024 was not certified for publication in the Official Reports.
Upon application of Petitioner County of Los Angeles and for
good cause appearing, it is ordered that the opinion shall be
published in the Official Reports.
Pursuant to California Rules of Court, rule 8.1105(b), this
opinion is certified for publication.
CURREY, P. J. COLLINS, J.
ZUKIN, J.
37