Santos v. Kisco Senior Living, LLC

Filed 7/22/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARIA DELALUZ SANTOS, D067929

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2013-00057882-

CU-PO-NC)

KISCO SENIOR LIVING, LLC et al.,

Defendants and Appellants.

APPEAL from a judgment and order of the Superior Court of San Diego County,

Robert P. Dahlquist, Judge. Reversed and remanded with directions.

Carothers DiSante & Freudenberger, Dave Carothers, Karimah J. Lamar and

Jing Y. Li for Defendants and Appellants.

Law Offices of Ramona R. Hallam, Ramona R. Hallam; Law Office of Deborah E.

Brady-Davis and Deborah E. Brady-Davis for Plaintiff and Respondent.

I.

INTRODUCTION

After a series of thefts from residents at a residential community for the elderly

called Cypress Court, police advised Cypress Court's management to install video

cameras and place bait money in some of the residents' apartments, in an attempt to catch

the thief. After doing so, on July 18, 2012, Cypress Court's resident relations director,

defendant Tamara Gutierrez, determined that bait money that had been planted in a box

in an elderly person's apartment had been removed. That same day, Gutierrez and

Cypress Court's executive director, appellant Ricky Lansford, reviewed surveillance

video that potentially implicated respondent Maria Delaluz Santos, who worked at

Cypress Court as a resident assistant. Lansford and Gutierrez decided to call police.

Within a couple of hours, police arrived at Cypress Court and reviewed the video.

After viewing the video, the police interviewed and searched Santos. Santos denied

committing the theft and was not found to be in possession of the bait money. While the

police were at Cypress Court, Lansford signed a form provided to him by a police officer,

which effectuated a citizen's arrest of Santos. The officer gave Santos a notice to appear

on the charge of petty theft and escorted her from the facility. The district attorney

subsequently filed a criminal complaint against Santos, but, in December 2012, the

charges were dismissed.

Santos filed this action in July 2013 against Gutierrez, Lansford, and two entities

that either partially owned or managed Cypress Court, appellants Kisco Senior Living,

LLC and KRC ESC Corp. (collectively "Kisco"), alleging numerous causes of action,

including assault and battery, defamation, malicious prosecution, negligence, false arrest

and intentional infliction of emotional distress. After the close of evidence, defendants

moved for nonsuit and a directed verdict with respect to all of Santos's claims. The trial

court granted the motion for nonsuit with respect to all of the claims asserted against

Gutierrez, and all of the claims against the remaining defendants with the exception of

2

the false arrest and intentional infliction of emotional distress claims. The jury returned a

verdict against Kisco and Lansford (collectively "appellants") on the false arrest claim

and in favor of appellants on the intentional infliction of emotional distress claim.1 The

jury awarded Santos $65,965 in damages, and the trial court entered a judgment in

accordance with the jury's verdict.

Appellants filed a motion for judgment notwithstanding the verdict (JNOV) in

which they claimed that they were absolutely immune from Santos's false arrest claim

pursuant to an immunity provision (Welf. & Inst. Code, § 15634)2 in the Elder Abuse

and Dependent Adult Civil Protection Act (the Act) (§ 15600 et seq.). Appellants argued

that the undisputed evidence established that Lansford was a mandated reporter under the

Act, that Santos's claim was based on Lansford's "action of furthering the investigation

[into elder abuse] by signing the citizen's arrest form," and that section 15634 prevents

mandated reporters from being held liable for acts that "stem[ ] from [the] duty to report

suspected financial abuse of an elder." The trial court denied the motion, stating that the

court was "not persuaded . . . that the mandated reporter immunity . . . bar[s] the false

arrest claim . . . ."

1 The record indicates that the sole theory of liability upon which the jury rendered

its verdict against Kisco was that Kisco was vicariously liable for Lansford's conduct.

The trial court instructed the jury, "If you find that Ricky Lansford's false arrest and/or

intentional infliction of emotional distress on [Santos] [sic], then you must decide

whether [Kisco] are responsible for her harm."

2 Unless otherwise specified, all subsequent statutory references are to the Welfare

and Institutions Code.

3

On appeal, among other contentions, appellants claim that the undisputed facts

establish that they are absolutely immune from Santos's false arrest claim and that the

trial court erred in denying their motion for JNOV on this ground.3 We agree. The sole

published appellate case applying section 15634 concludes that the immunity provided in

the statute is "sweeping in its breadth." (Easton v. Sutter Coast Hospital (2000)

80 Cal.App.4th 485, 491 (Easton).) Further, in reviewing cases construing a nearly

identical immunity provision for mandated reporters in the context of child abuse (Pen.

Code, § 11172), this court has stated, "Without exception, our appellate courts have

concluded that immunity is a key ingredient in maintaining the Act's integrity and thus

have rejected efforts aimed at narrowing its protection." (Stecks v. Young (1995) 38

Cal.App.4th 365, 375.) For example, courts have concluded that mandated reporters may

not be sued either for "conduct committed in furtherance of diagnosing whether abuse

occurred," (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1492

(Arce)), or for "communications between the reporter and the public authorities

responsible for investigating or prosecuting . . . abuse." (Robbins v. Hamburger Home

for Girls (1995) 32 Cal.App.4th 671, 679 (Robbins).)

We conclude that section 15634 similarly protects mandated reporters from

liability for conduct that is integrally related to a report of suspected elder abuse, and

further conclude that the undisputed evidence establishes that Lansford's acts in this case

3 While this appeal was pending, we granted the California Assisted Living

Association's (CALA) application to file an amicus brief in support of appellants. We

also provided all parties with the opportunity to file an answer to CALA's brief. None of

the parties timely filed an answer. We denied Santos's request to file an untimely answer.

4

constituted such conduct. Accordingly, we reverse the judgment and the trial court's

order denying appellants' motion for JNOV and remand the matter to the trial court with

directions to grant appellants' motion and enter judgment in favor of appellants.4

II.

FACTUAL BACKGROUND5

A. Thefts at Cypress Court

Beginning in March 2012, there was a large increase in the number of thefts at

Cypress Court.6 Between March and July of that year, residents or their family members

reported nine instances of theft to Gutierrez.

On June 25, 2012, a resident, Mr. N., together with a family member, reported a

series of thefts to Gutierrez that they believed had been occurring over a period of

approximately a month. They told Gutierrez that $250 was missing from a lockbox in

Mr. N.'s room and $45 was missing from his wallet. Cufflinks and a wedding ring were

also missing. The police investigated the thefts.

4 In light of our disposition, we need not consider appellants' other arguments in

support of reversal of the judgment and/or the court's order denying appellants' motion

for JNOV. Specifically, we need not consider appellants' arguments that they may not be

liable for the tort of false arrest because a police officer requested that Lansford sign the

citizen's arrest form, it would have been a misdemeanor for Lansford to refuse to assist

the police, and there is insufficient evidence that Lansford had the requisite intent to

commit the tort. In addition, we need not consider appellants' claim that the trial court

erred in instructing the jury on the tort of false arrest.

5 In light of the procedural posture of the case, we state the facts in the light most

favorable to the verdict. (See pt. III.A., post.)

6 Santos was hired by Cypress Court on March 13, 2012.

5

While investigating one of the thefts, police advised Gutierrez to speak with

Detective Thompson of the Escondido Police Department concerning possible actions

that Cypress Court could take concerning the thefts. Gutierrez and Lansford met with

Detective Thompson. According to Gutierrez, Detective Thompson recommended that

Cypress Court purchase video cameras and "set up some bait money," in an attempt to

catch the thief. Gutierrez installed video cameras in some of the resident's apartments,

including in Mr. N.'s.

B. Gutierrez and Lansford suspect that Santos is responsible for the thefts

On July 17, 2012, Gutierrez placed bait money inside an unlocked box in Mr. N.'s

apartment. The following morning, Gutierrez went to Mr. N.'s apartment. Gutierrez

looked inside the box and discovered that $40 was missing. Gutierrez then reviewed a

video recording that "showed [Santos] near the [box] and touching the [box]."

Gutierrez explained that the video camera from which the recording was taken was

motion activated, that she had watched all of the recordings between the time the bait

money was placed in the box and the time the money was discovered missing, and that

Santos was the only person near the box during this time. Gutierrez acknowledged,

however, that the camera did not detect all motions in the room. Although she was not

certain that Santos had taken anything out of the box, Gutierrez considered Santos's

behavior on the video to be "suspicious," and felt that it "was necessary to report this to

the police because [Gutierrez is] a mandated reporter."

Gutierrez asked Lansford to review the video clip of Santos that Gutierrez

considered suspicious. Gutierrez and Lansford reviewed the video recording together.

6

After doing so, Gutierrez and Lansford agreed that they should call the police. Gutierrez

placed the call.

C. The police investigation

At some point later that same day, Christi Torres, an employee in the human

resources department at Cypress Court, went to a room in which Santos was working,

directed Santos to come with her, walked Santos down to the lobby, and told Santos to

wait in a chair in the lobby. Torres then went into Lansford's office, which was next to

the lobby. Santos waited in the lobby as directed by Torres. After approximately two

hours, Santos saw police officers arrive at Cypress Court.

Santos's supervisor brought her into Lansford's office. The supervisor, Lansford,

Torres, and some police officers were in the room. The officers asked Santos whether

she had been in Mr. N's room. Santos acknowledged that she had been in Mr. N.'s room

in order to get him out of bed, clean his room, and send him to breakfast. The officers

asked Santos whether she had taken anything from Mr. N.'s room. Santos denied having

taken anything. The officers then instructed Santos to empty her pockets, which she did.

Santos took a cookie wrapper, a phone, some gloves, a pager and a radio out of her

pockets. After the search, everyone left Lansford's office, except for Santos and one

police officer. Santos asked the officer what she was being accused of. The officer

responded, "They have nothing on you."

7

A male police officer told Santos that they were going to have a female officer

search her. Santos responded that she had $30 in her sock.7 The serial numbers on the

bills taken from Santos's sock did not match the serial numbers of the bait money. A

female officer arrived and searched Santos. During the search, the officer touched

Santos's breast area and waist area in a manner that Santos found offensive. None of the

bait money was recovered during either of the searches, nor at any other time.

D. Santos is arrested and charged with a crime, but charges are later dismissed

At some point while the police were at Cypress Court,8 Lansford signed a form

that effectuated a citizen's arrest of Santos.9 The citizen's arrest form is part of a July 18

arrest report that appears to be entitled, "San Diego Regional County Arrest/Juvenile

Contact Report."10 The first page of the two pages of the report that are in the record is

7 Santos explained that she occasionally kept money in her sock while at work after

having previously lost money at work while carrying it in her pocket.

8 It is not clear from the record when exactly this arrest occurred in relation to the

remainder of the interrogation and search. Santos asserts that the arrest occurred after the

interrogation and search, but does not cite to any portion of the reporter's transcript that

demonstrates the timing of the arrest in relation to the interrogation and search.

However, the precise timing of the arrest is not material to our resolution of the appeal.

9 The citizen's arrest form is contained in the appellant's appendix as an attachment

in Santos's opposition to appellants' motion for JNOV. In addition, a two-page

document, labeled court's exhibit 114, containing two pages of a July 18, 2012 arrest

report, including the citizen's arrest form, is attached to CALA's amicus brief. Although

it is not clear from the record whether court's exhibit 114 was offered in evidence at trial,

it does appear that the same two pages of the July 18, 2012 arrest report were admitted in

evidence as court's exhibit 1. Neither party contends that the two pages of the July 18,

2012 arrest report containing the citizen's arrest form is not properly in the record.

Accordingly, we conclude that the two pages of the July 18, 2012 arrest report attached to

CALA's amicus brief are properly before this court since they are identical to court's

exhibit 1.

10 A portion of the title of the document in the record is obscured.

8

written by Officer Lewis Shaver. The report states that the arrest occurred at 1:45 p.m.

on July 18, 2012, lists Santos as the "arrestee," states the charge "PC 488 petty theft," and

states that the victim of the offense is "Cypress Court Retirement."

The second of the two pages of the report contains a box labeled "Citizen Arrest."

The box states, "I have arrested __________." Santos's name is handwritten on the line.

Immediately below the line is the following:

"□ For a public offense committed or attempted in my presence.

"□ When the person arrested has committed a felony, although not in

my presence.

"□ When a felony has been in fact committed, and I have reasonable

cause for believing the person arrested to have committed it."

None of the boxes next to the three options listed in the text above is checked.

Lansford signed this portion of the form. The second of the two pages of the report was

also written by Officer Shaver, with the exception of Lansford's signature. Lansford

signed that portion of the form, thereby effectuating a citizen's arrest of Santos.

Officer Shaver issued Santos a misdemeanor citation for petty theft. The citation

stated that the violation occurred at 1:45 p.m. on July 18 and directed Santos to appear in

court on or before September 4, 2012.

The district attorney subsequently filed a misdemeanor criminal complaint against

Santos charging her with petty theft. The charges were dismissed in December 2012.

Santos suffered depression and anxiety as a result of the incident. In addition, she

suffered a loss of income, incurred debt for the payment of attorney fees, and was unable

to find similar employment.

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III.

DISCUSSION

The trial court erred in denying appellants' motion for JNOV on the ground that

appellants were not immune from Santos's false arrest claim

Appellants claim that the trial court erred in denying their motion for JNOV. In

support of this claim, appellants argue that the undisputed facts presented at trial establish

that they are immune from liability for Santos's false arrest claim.

A. General principles of law governing a motion for JNOV and the applicable

standard of review

A trial court must grant a motion for JNOV whenever a motion for a directed

verdict for the aggrieved party should have been granted. (Code Civ. Proc., § 629.)

" ' "[T]he power of the court to direct a verdict is absolutely the same as the power of the

court to grant a nonsuit." [Citation.] "A motion for a directed verdict 'is in the nature of

a demurrer to the evidence, and is governed by practically the same rules, and concedes

as true the evidence on behalf of the adverse party, with all fair and reasonable inferences

to be deduced therefrom.' " ' " (Baker v. American Horticulture Supply, Inc. (2010) 186

Cal.App.4th 1059, 1072.)

Ordinarily, when reviewing a ruling on a motion for JNOV, "an appellate court

will use the same standard the trial court uses in ruling on the motion, by determining

whether it appears from the record, viewed most favorably to the party securing the

verdict, that any substantial evidence supports the verdict. ' " 'If there is any substantial

evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the

10

motion should be denied.' " ' " (Trujillo v. North County Transit Dist. (1998) 63

Cal.App.4th 280, 284.)

Whether, in light of the facts viewed in the light most favorable to Santos,

appellants are immune from Santos's false arrest claim presents a question of law that we

review de novo. (See King v. State of California (2015) 242 Cal.App.4th 265, 289

[" 'The availability of . . . immunity after a trial is a legal question informed by the jury's

findings of fact, but ultimately committed to the court's judgment' "]; Sweatman v.

Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [stating that where an appeal

from the denial of a motion for JNOV raises a legal issue, an appellate court reviews the

question de novo].)

B. Relevant law

1. The Act

The Act "represents the Legislature's response to the problem of unreported elder

abuse which came to its attention in the early 1980's." (Easton, supra, 80 Cal.App.4th at

p. 490.) "The focus of the Act has always been to encourage reporting of abuse or

neglect." (Id. at p. 491.)

Under the Act, "[a]ny person who has assumed full or intermittent responsibility

for the care or custody of an elder or dependent adult . . . is a mandated reporter."

(§ 15630, subd. (a).) Mandated reporters are statutorily required to report suspected

instances of abuse, including financial abuse, of the elderly: "Any mandated reporter

who, in his or her professional capacity, or within the scope of his or her employment,

has observed or has knowledge of an incident that reasonably appears to be . . . financial

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abuse . . . or reasonably suspects that abuse, shall report the known or suspected instance

of abuse . . . as soon as practicably possible." (Id., subd. (b)(1).) Pursuant to section

15610.30, " 'Financial abuse' of an elder . . . occurs when a person or entity does any of

the following: [¶] . . . Takes . . . personal property of an elder or dependent adult for a

wrongful use or with intent to defraud, or both." A report of suspected financial abuse of

an elder may be made to "[a] local law enforcement agency," among other entities. (See

§ 15630, subd. (b)(1)(A).) Section 15658, subdivision (b)(7) specifies that "[t]he name of

the individuals believed to be responsible for the incident and their connection to the

victim," is among the information to be provided on the statutorily authorized "written

abuse report" (id., subd. (a)) required by the Act.

The Act contemplates that the appropriate authorities will undertake an

investigation into such reports in order to protect the elderly person. For example, the

Act provides that, "it is the intent of the Legislature in enacting this chapter to provide

that . . . local law enforcement agencies shall receive referrals . . . from any mandated

reporter submitting reports . . . and shall take any actions considered necessary to protect

the elder or dependent adult and correct the situation and ensure the individual's safety."

(§ 15600, subd. (i), italics added; see People v. Davis (2005) 126 Cal.App.4th 1416, 1435

(Davis) ["The enactment of such a comprehensive statutory scheme, which not only

requires designated professionals to report known or suspected abuse but also sets up a

system of outside agencies mandated to investigate reports of such abuse, amply

demonstrates the scope and severity of the problem of elder and dependent adult abuse as

perceived by the Legislature"]; Easton, supra, 80 Cal.App.4th at p. 493 ["The focus of

12

the statutory scheme is to encourage prompt reports so as to protect the victim of the

suspected abuse" (italics added)].)

Section 15630 provides criminal sanctions for those mandated reporters who either

fail to report abuse, including financial abuse, or who "imped[e] or inhibit[ ] a report" of

such abuse. (Id., subd. (h) ["Failure to report, or impeding or inhibiting a report of . . .

financial abuse, or neglect of an elder or dependent adult, in violation of this section, is a

misdemeanor"].) In addition, in order to further the statute's purpose of fostering "the

broadest possible reporting of incidents of known and suspected abuse of elder and

dependent adults," section 15630 has been construed to impose "criminal liability for

failure to report, without regard to intent or negligence." (Davis, supra, 126 Cal.App.4th

at p. 1437.)

In order to further ensure that mandated reporters comply with their reporting

obligations, section 15634, subdivision (a) "create[s] an absolute privilege in those

individuals required to make such reports . . . ." (Easton, supra, 80 Cal.App.4th at pp.

489, 494 ["Immunity from reporting suspected abuse is crucial to ensure compliance with

the reporting obligation"].) Section 15634's immunity provision provides in relevant

part:

"No care custodian . . . who reports a known or suspected instance of

abuse of an elder or dependent adult shall be civilly or criminally

liable for any report required or authorized by this article." (Id.,

subd. (a).)

In Easton, the court was "called upon to construe the breadth of the immunity

from civil liability conferred by . . . section 15634." (Easton, supra, 80 Cal.App.4th at

13

p. 488.) In that case, a physician made a report to sheriff's deputies based on information

that the physician had received from a nurse who had unsuccessfully attempted to

persuade the plaintiff to take his mother to the hospital. (Id. at p. 489.) Authorities acted

on the report by removing the plaintiff's mother from his home and taking her to the

hospital. (Ibid.) The Easton court considered whether the physician and the nurse were

immune from liability for trespass, false imprisonment and emotional distress claims

premised upon the report and the seizure of the elderly woman. (Id. at pp. 489-490.) At

the time of the incident, former section 15630, subdivision (b) provided that a mandated

reporter who "has observed an incident that reasonably appears to be physical abuse,"

was required to report such abuse. (Easton, supra, at p. 491, italics added, quoting

former § 15630, subd. (b).)

The Easton court first concluded that the immunity provided in section 15634 to

mandated reporters was absolute, rather than qualified. The Easton court reasoned:

"Based upon the purpose of the immunity provision and upon the

Legislature's drafting of section 15634, we conclude that the

privilege created by the section is absolute rather than qualified. The

language of section 15634 distinguishes between mandated reporters

of abuse who make required or authorized reports and nonmandated

reporters. As to those who must report, the rule is sweeping in its

breadth—no health practitioner who reports shall be civilly liable for

any report. However, the section goes on to create only a qualified

privilege for '[a]ny other person reporting.' Such nonmandated

reporters 'shall not incur civil or criminal liability as a result of any

report authorized by this article, unless it can be proven that a false

report was made and the person knew that the report was false.'

(§ 15634, subd. (a).) The plain meaning of the statutory language is

that for mandated reporters the truth or falsity of the report is of no

moment—the privilege is absolute." (Easton, supra, 80 Cal.App.4th

at pp. 491-492.)

14

The Easton court then considered whether the physician and the nurse were

entitled to immunity, notwithstanding that they had failed to "comply with the reporting

method described in [former] section 15630" (Easton, supra, 80 Cal.App.4th at p. 492),

in that the nurse had not personally called law enforcement, but instead had relayed

information concerning the abuse to the physician, who called law enforcement. The

Easton court "reject[ed] a strict reading of the reporting condition—namely that reports

be made by one who 'has observed' a reportable incident—as inconsistent with either the

letter or the spirit of the statutory scheme." (Id. at p. 493.) The Easton court reasoned

that while a physician's reliance on a nurse's report of suspected abuse "was not expressly

envisioned by the statutory scheme in effect as of [the time of the incident] the

Legislature had in fact already taken action to amend the statute so that such reliance

would be expressly permitted." (Id. at p. 494 [referring to an amendment to the statute

requiring a mandated reporter who " 'has observed or has knowledge of an incident,' " to

report such incident, quoting § 15630, subd. (b)(1), as amended by Stats. 1998, ch. 980,

§ 1].) The Easton court continued, "Clearly the purpose of the statutory scheme of which

section 15630 is a part and the precise language of the 1998 version of the section, would

not be advanced by denying immunity to either [the nurse] or [the physician]." (Easton,

supra, at p. 494.)

2. Mandated reporter immunity in the child abuse context

In interpreting and applying section 15634, we may consider its "predecessor

statutes, which created reporting requirements and immunity for mandated reporters of

child abuse." (Easton, supra, 80 Cal.App.4th at p. 492.) Such case law is highly relevant

15

in light of the similarity of the two immunity provisions. (Compare § 15634 ["No care

custodian . . . who reports a known or suspected instance of abuse of an elder or

dependent adult shall be civilly or criminally liable for any report required or authorized

by this article"] with Pen. Code, § 11172 ["No mandated reporter shall be civilly or

criminally liable for any report required or authorized by this article"].)

Courts have repeatedly recognized the breadth of the immunity provision

contained in Penal Code section 11172. (See, e.g., B.H. v. County of San Bernardino

(2015) 62 Cal.4th 168, 193 ["The Legislature . . . grant[ed] . . . broad immunities for

those mandated reporters who report suspected instances of child abuse"]; Thomas v.

Chadwick (1990) 224 Cal.App.3d 813, 821 (Thomas) ["To encourage reporting, the

Legislature granted reporters broad immunities to obviate the chilling effect the spectre of

civil lawsuits would have upon a reporter's willingness to become involved"].) "In order

to promote the purpose of the act to protect abused children, [Penal Code] section 11172

provides that mandated reporters of child abuse are absolutely immune from liability."

(Robbins, supra, 32 Cal.App.4th at p. 679; see also Arce, supra, 211 Cal.App.4th at

p. 1485 ["The immunity extends even to negligent, knowingly false, or malicious reports

of abuse"].)

Further, courts have broadly interpreted the immunity provided in Penal Code

section 11172 beyond its literal text in order to effectuate this purpose. For example, in

Storch v. Silverman (1986) 186 Cal.App.3d 671, 677 (Storch), despite the fact that the

version of the statute applicable in the case was limited to persons "who report[ ] a

known or suspected instance of child abuse" (id. at p. 675, fn. 3, italics added, quoting

16

former Pen. Code, § 11172, subd. (a)), the court concluded that the statute covered "those

mandated reporters who are involved in the identification of an instance of child abuse

but do not personally report it to the authorities." (Storch, supra, at p. 681, italics added.)

In reaching this conclusion, the court reasoned:

"Team immunity is consistent with the purpose and intent of the

Legislature in promoting the reporting of child abuse. Limitation of

immunity to the person making the telephone call to the agency or

signing the report would defeat that purpose." (Ibid.)

In addition, and of particular relevance to this case, courts have broadly interpreted

the child abuse mandated reporter immunity provision to apply to certain conduct related

to a reporting event. For example, in Krikorian v. Barry (1987) 196 Cal.App.3d 1211

(Krikorian), the court considered whether "mandatory reporters [are] completely immune

from liability for professional services rendered in connection with the identification or

diagnosis of suspected cases of child abuse, or just for the act of reporting." (Id. at

p. 1222.) The Krikorian court rejected the argument that mandated reporter immunity

extended only to the "act of reporting" (ibid.), reasoning in part:

"[L]imiting immunity to the protection of professionals against

lawsuits resulting from the act of reporting would defeat the

Legislature's goal of promoting increased reporting of child abuse.

The Legislature has identified the fear of civil liability for allegedly

false reports as a major deterrent to the reporting of suspected cases

of child abuse by professionals. Recent revisions to the Child Abuse

Reporting Act have been largely directed at reducing or eliminating,

to the extent possible, professional[s'] fear of litigation resulting

from required reports. A law conferring 'absolute' immunity for the

act of reporting suspected child abuse, but not for professional

activities contributing to its identification, would not likely allay the

fear of a prospective reporter that an angry parent might initiate

litigation for damages, following a report which is subsequently

proven to be mistaken." (Id. at pp. 1222-1223.)

17

Ultimately, the Krikorian court held, "Insofar as liability for damages to a person falsely

accused of child abuse is concerned, we conclude that [Penal Code] section 11172 was

intended to provide absolute immunity to professionals for conduct giving rise to the

obligation to report, such as the collection of data, or the observation, examination, or

treatment of the suspected victim or perpetrator of child abuse, performed in a

professional capacity or within the scope of employment, as well as for the act of

reporting." (Id. at p. 1223.)

In Arce, supra, 211 Cal.App.4th 1455, the Court of Appeal applied Krikorian,

among other cases, in concluding that a hospital's social worker (Wilson) and the hospital

for which she worked were immune from claims for intentional infliction of emotional

distress, invasion of privacy, and stalking premised on allegedly harassing phone calls

that Wilson made to the parents concerning a bruise on their child's ankle. (Id. at

pp. 1491-1492.) According to plaintiffs, when the father questioned Wilson about

inconsistent statements that Wilson had made to the parents concerning her involvement

in the case, Wilson " 'began to laugh at and antagonize the [p]laintiffs, and made the

threat that [the parents'] children would again be taken away.' " (Id. at p. 1492.) The

plaintiffs claimed that the trial court had erred in concluding that the defendants were

immune from claims premised on such conduct, arguing, "Wilson's conduct did not

involve the act of reporting child abuse within the meaning of Penal Code section 11172

and therefore was not protected under the statute." (Ibid.) The Arce court rejected this

argument, noting, "Cases analyzing Penal Code section 11172 have concluded that the

18

statute provides immunity to claims predicated on false and malicious reports of abuse as

well as conduct committed in furtherance of diagnosing whether abuse occurred." (Ibid.)

Thus, even though the plaintiffs argued that Wilson's conduct was "harassing,

antagonizing, and threatening" (id. at p. 1496), the Arce court concluded that the trial

court had properly determined that "[t]he conduct alleged against Wilson falls within

[Penal Code] section 11172." (Ibid., italics omitted.)

Courts have also concluded that immunity under Penal Code section 11172 may

"cloak[ ] the mandated reporter with immunity for activity [occurring] after the report of

suspected child abuse . . . is made." (Ferraro v. Chadwick (1990) 221 Cal.App.3d 86, 92

(Ferraro).) In Ferraro, the court noted that Penal Code section 11172 extends immunity

"not only to 'required' or mandated reporting but to another distinct category of

reporting[,] that which is 'authorized' by the Act. (Ferraro, supra, at p. 93, quoting Pen.

Code, § 11172, subd. (a); see also § 15634 [providing immunity "for any report required

or authorized by this article" (italics added)].) The Ferraro court concluded that

"communications by a mandated reporter to . . . law enforcement agencies that are

statutorily entitled to receive and investigate reports of child abuse are 'authorized'

communications or reports under the [Child Abuse and Neglect Reporting Act], and,

therefore, [a]re protected by the immunity of [Penal Code] section 11172, subdivision

(a)." (Ferraro, at p. 95, italics added; see Thomas, supra, 224 Cal.App.3d at p. 822 ["It

would be anomalous to conclude that the reporter's 'required' report of suspected child

abuse is privileged, but that the legislatively contemplated subsequent communications

19

concerning the incident would expose the reporter to potential civil liability"].) The

Ferraro court reasoned in part:

"Certainly, it is reasonable to infer the Legislature (1) anticipated

that in the course of an investigation into suspected child abuse, the

reporter . . . is going to be contacted and interviewed by the agency

conducting the investigation and (2) sanctioned such communication

between the reporter and the investigating agency. It is also

reasonable to infer the Legislature foresaw the possibility of the

reporter being contacted by the district attorney with respect to

criminal investigations." (Ferraro, at pp. 94-95.)

C. Appellants are immune from Santos's false arrest claim because the claim was

premised on a mandated reporter's conduct that was integrally related to a report

of suspected elder abuse

It is undisputed both that Lansford was a mandated reporter under the Act and that

Gutierrez's July 18 call to the police constituted a report required under the Act.11 Thus,

it is clear that appellants are immune from liability for any claims based on Gutierrez's

call to the police. (See § 15634, subd. (a) [providing immunity for "any report required

or authorized by this article"].) Santos does not dispute this.

The more difficult question is whether Lansford's acts on July 18 taken in

connection with the police investigation that day, in response to Gutierrez's call, are

similarly protected. In light of the case law discussed above and the particular

circumstances of this case, we conclude that Lansford is immune from Santos's claim

because his conduct was integrally related to a report of suspected elder abuse and thus

constituted "authorized" activity within the meaning of section 15634.

11 Lansford and Santos both testified that Lansford was a mandated reporter of elder

abuse, and there was no contrary testimony. In her brief, Santos concedes that Gutierrez's

initial report to the police was "appropriate."

20

At the outset, we must specifically identify the conduct on which Santos's false

arrest claim is based. Santos suggests that her false arrest claim is premised on the

search, interrogation and arrest that occurred on July 18, as well as the ensuing

prosecution. Her brief states the following:

"Ms. Santos concedes that reporting is appropriate. It was the

further act of arresting Ms. Santos after performing an illegal strip-

search and questioning, and subjecting her to prosecution even upon

discovery that she had no[t] stolen property that is problematic."12

To the extent that Santos contends that the jury's verdict on her false arrest claim is

supported by evidence of Lansford's purported conduct in searching, interrogating, or

prosecuting Santos, we disagree. There is no evidence that Lansford participated in

either the search or questioning conducted by the police on July 18. Santos testified that

police officers interrogated and searched her.13 Detective Shaver testified that he

questioned Santos and informed her that a female officer would be arriving at the scene

to search her. Lansford testified that he was not in the room during the interrogation and

12 Santos also referred to the interrogation, search, and arrest in the false arrest claim

in her complaint.

13 At one point in her testimony, Santos stated that Lansford and the police officers

were in a room and that "they" asked her questions concerning whether she had been in

Mr. N.'s room. Shortly thereafter, Santos stated, "They said for me to bring out anything

that I had in my pockets." Defense counsel then asked, "Okay. Now, who is they?"

Santos responded, "The police officers." Santos did not specifically state that Lansford

had participated in the interrogation.

21

search. Further, there also is no evidence that Lansford participated in the prosecution of

Santos's criminal case.14

Thus, we are left to consider whether Lansford's act in signing a form that

effectuated a citizen's arrest of Santos constitutes conduct protected by the immunity

afforded by section 15634. In considering this issue, we begin by rejecting Santos's

assertion that "[m]andated reporter immunity only extends to reporting and does not

extend to conduct." (Capitalization & boldface omitted, italics added.) As noted above,

courts have concluded that mandated reporters in the child abuse context may not be held

liable for "conduct committed in furtherance of diagnosing whether abuse occurred."

(Arce, supra, 211 Cal.App.4th at p. 1492, italics added). We see no reason why this same

principle should not apply when interpreting the nearly identical immunity provision in

the Act.15 For the same reason, we conclude that case law in the child abuse context

providing that mandated reporters are immune for communications with law enforcement

that occur after an initial report of abuse that are related to abuse (see Ferraro, supra, 221

Cal.App.3d at pp. 92, 95), should apply with equal force in interpreting section 15634.

14 The deputy district attorney who was assigned to prosecute Santos's criminal case

testified at trial. Neither his testimony, nor any other evidence in the record demonstrates

that Lansford had any role in the prosecution of Santos's criminal case.

15 We are not persuaded by Santos's argument that no mandated reporter immunity

may lie because "[s]igning a citizen's arrest form is an act." In support of this contention,

Santos cites Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1136 (Kesmodel), which

she contends is "directly on point." Kesmodel did not concern the scope of mandated

reporter immunity, but rather, addressed whether a citizen's arrest constituted

communication protected by the litigation privilege in Civil Code section 47, subdivision

(b). (Kesmodel, supra, at pp. 1134-1140.) The case is inapposite because unlike

mandated reporter immunity, the litigation privilege "protects only communications or

broadcasts." (Id. at p. 1137.)

22

This case falls within the intersection of these two lines of cases. Further, the

undisputed evidence discussed below establishes that Lansford's act in signing a citizen's

arrest form constituted activity that was so integrally related to a report of elder abuse

that it constituted conduct that falls within the "sweeping . . . breadth" of the immunity

afforded in section 15634. (Easton, supra, 80 Cal.App.4th at p. 491.)

To begin with, we consider the nature of Lansford's act as to which liability is

sought. Lansford's conduct in this case—signing a form to effectuate a citizen's arrest—

was far more similar to an act of "reporting" than other conduct to which courts have

determined immunity extends. (See Arce, supra, 211 Cal.App.4th at pp. 1491-1492

[making harassing telephone calls]; McMartin v. Children's Institute International (1989)

212 Cal.App.3d 1393, 1401 [interviewing children]; Krikorian, supra, 196 Cal.App.3d at

pp. 1213, 1222-1223 [providing psychotherapeutic services]; Storch, supra, 186

Cal.App.3d at p. 674 & fn. 2 [conducting medical examinations and a pathology

analysis].) As amicus CALA argues, "[I]t is not apparent that signing a citizen's arrest

form should be construed as something other than 'reporting' even in the literal sense of

the word."

In addition, it is clear that Lansford's conduct was undertaken in connection with

an official investigation into suspected elder abuse occasioned by Lansford and

Gutierrez's mandated report of such suspected abuse. We are not persuaded by Santos's

argument that Lansford's conduct was undertaken in order to protect Cypress Court's

property (i.e., the bait money placed in Mr. N.'s room), and thus, the arrest was

unconnected to a report of elder abuse. Clearly, Lansford's conduct would not have been

23

protected by section 15634 if Lansford had suspected Santos of stealing money from his

office and effectuated a citizen's arrest of her. But, in this case, the undisputed evidence

demonstrates that Gutierrez's initial call to the police was made because Gutierrez and

Lansford suspected that Santos had been stealing property belonging to the elderly

residents at Cypress Court, i.e., committing financial abuse of the elderly.16 That

evidence includes undisputed evidence of prior thefts of elderly residents' property, prior

reports to the police concerning those thefts, police instruction to management to place

video cameras and bait money at the facility in attempt to catch the thief, and Gutierrez's

discovery of missing bait money and video potentially implicating Santos as the thief. In

light of this evidence, we reject Santos's assertion that "[t]his is not a case where the

arrest at issue was performed in furtherance of a report to law enforcement."

This case stands in sharp contrast to James W. v. Superior Court (1993) 17

Cal.App.4th 246 (James W.), in which this court concluded that mandated reporter

immunity did not apply to the conduct of a family counselor and foster parent who, for

two and one-half years after a report of sexual abuse, allegedly coerced a child into

falsely naming her father as the perpetrator of the abuse. (Id. at pp. 258-259.)17 The

James W. court concluded that defendants, who had "[not] identified or reported child

16 As noted previously, Santos concedes that Gutierrez's initial report to the police

was "appropriate." We agree that it is clear that Gutierrez called the police because she

and Lansford suspected elder abuse. Gutierrez's conduct in calling the police would not

have been entitled to immunity if she were merely calling to report a theft of Cypress

Court's property.

17 The complaint in James W. alleged that defendants participated in "a campaign

that included concealing evidence and inducing confessions and accusations by fraud,

coercion, and perjury." (James W., supra, at p. 249.)

24

abuse,"18 were not entitled to immunity because they "voluntarily assumed roles of those

who, having received the report and determined the identity of the perpetrator, search for

corroboration and/or attempt to pressure a witness to get a conviction." (Id. at p. 256.)

Unlike in James W., Lansford's conduct occurred both while law enforcement

officers were physically present at the scene conducting an investigation, and in close

temporal proximity to the initial report of abuse.19 Further, even viewing the facts in the

light most favorable to Santos, as is required (see pt. III.A., ante), there is no evidence

that Lansford "usurped the function" of the authorities (Robbins, supra, 32 Cal.App.4th at

p. 680, discussing James W.) such that he would not be entitled to mandated reporter

immunity under James W. (See also Jones v. County of Los Angeles (9th Cir. 2015) 802

F.3d 990, 1008 [applying James W. to conclude that doctor who "usurped DCFS's

authority under California law to take a child into temporary custody," was not entitled to

child abuse mandated reporter immunity].)

In light of the case law interpreting the broad mandated reporter immunity

provided in the elder and child abuse context, the nature of Lansford's conduct, and its

18 The James W. court explained that "hospital staff" had reported the abuse and that

the defendants "came onto the scene after the fact—after child abuse had been positively

identified and reported." (James W., supra, at p. 256.)

19 Lansford's conduct was far closer in time to the initial reporting event than has

been true in other cases in which mandated reports have been determined to be immune.

(See, e.g., Ferraro, supra, 221 Cal.App.3d at p. 92 [stating that immunity may apply

"after the report of suspected . . . abuse . . . is made," and concluding that defendants

were immune for statements made more than two years after initial reporting event];

Thomas, supra, 224 Cal.App.3d at pp. 816-817 [doctor and hospital immune from suit for

letter sent to district attorney approximately one month after initial report of child abuse

"urging the district attorney to take action to remove appellants' other child . . . from her

parents' home"].)

25

close relationship to an official investigation into suspected elder abuse, we conclude that

Lansford is immune from Santos's false arrest claim as a matter of law. Accordingly, we

conclude that the trial court erred in denying appellants' motion for JNOV.20

IV.

DISPOSITION

The judgment and the trial court's order denying appellants' motion for JNOV are

reversed. The matter is remanded to the trial court with directions to grant appellants'

motion for JNOV and enter judgment in favor of appellants. In the interests of justice,

each party to bear its own costs on appeal.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

20 In light of our conclusion that Lansford is immune from Santos's false arrest claim,

we necessarily conclude that Kisco also may not be held vicariously liable for such claim.

26