Opinion

State Dept. of State Hospitals v. Super. Ct.

Court
California Court of Appeal
Filed
Nov 2, 2022
Status
Published
Cited by
0 cases
Authority
More cited than 9.8%

The opinion

Filed 11/2/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

STATE DEPARTMENT OF STATE

HOSPITALS,

Petitioner,

A164384

v.

THE SUPERIOR COURT OF NAPA

COUNTY, (Napa County

Respondent; Super. Ct. No. 21CV000760)

JANE DOE,

Real Party in Interest.

Jane Doe alleges that an employee of the State Department

of State Hospitals sexually abused her when Doe was a minor

and ward of the state. Doe sued the Department, asserting

causes of action for negligence (first cause of action), negligent

supervision/training/hiring/retention (second cause of action),

sexual battery (third cause of action), assault (fourth cause of

action), and statutory civil rights violations (fifth cause of action).

The Department demurred and then filed a petition for writ of

mandate after the trial court sustained its demurrer in part (with

leave to amend) and overruled it in part. We grant writ relief

because Doe’s complaint is barred by the Department’s immunity

under Government Code section 854.8, subdivision (a)(2).1

1 Undesignated statutory references are to the Government

Code.

1

BACKGROUND

A.

The Government Claims Act (§ 810 et seq.; the Act) sets out

a comprehensive scheme of liability and immunity statutes that

govern actions against public entities. (State Dept. of State

Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348 (Dept. of

State Hospitals); County of Los Angeles v. Superior Court (2005)

127 Cal.App.4th 1263, 1267.) Under the Act, a public entity is

not liable for injury except as otherwise provided by statute.

(§ 815, subd. (a); Dept. of State Hospitals, supra, at p. 348.)

Among the liability statutes, section 815.2, subdivision (a),

provides that a public entity may be vicariously liable for injury

caused by an act or omission of its employees acting within the

scope of their employment. However, even if a public entity may

be sued under a liability statute, the Act also includes immunity

provisions that prevail in specified circumstances. (Dept. of State

Hospitals, supra, at p. 348.)

B.

Doe alleges that, when she was a minor and ward of the

state confined at Napa State Hospital, she was sexually assaulted

by a Department counselor between 1997 and 1999. In

particular, Doe alleges that the counselor transported her and

other female residents to a sleeping facility in the evenings. The

counselor frequently provided medication that made the minor

residents drowsy and then sexually assaulted Doe and others at

the sleeping facility. She also adds conclusory allegations that

the Department knew or should have known that the counselor

had previously engaged in unlawful sexual conduct with other

minors and that he continued to do so with Doe. Doe’s complaint

seeks damages for her injuries.

2

C.

The Department demurred, arguing, in relevant part, that

it is immune from liability pursuant to section 854.8, subdivision

(a)(2). Doe opposed the demurrer, contending that an exception

to the Department’s statutory immunity applies under section

855, subdivision (a).

The trial court overruled the Department’s demurrer in

part and sustained it in part. With respect to immunity, the

court overruled the demurrer as to Doe’s first, third, fourth, and

fifth causes of action, concluding that section 815.2 provides

minimum personnel standards and thereby triggers the

immunity exception in section 855. The trial court granted Doe

leave to amend to “bring the second cause of action within the

scope of the exception to section 854.8.”

D.

The Department filed a petition for writ of mandate. We

issued an order to show cause. (See Babb v. Superior Court

(1971) 3 Cal.3d 841, 851; see also County of Sacramento v.

Superior Court (1972) 8 Cal.3d 479, 481.) Doe filed a return to

the order to show cause and the Department filed a reply.2

2 Doe contends that the Department’s petition for relief has

been mooted because, after the challenged order was entered, she

filed a first amended complaint and the Department filed an

answer. We reject the argument because Doe does not show that

these developments make it impossible for us to provide effective

relief. (See Lockaway Storage v. County of Alameda (2013) 216

Cal.App.4th 161, 174-175.)

3

DISCUSSION

A.

The Department argues that it is immune from liability on

Doe’s complaint pursuant to section 854.8. We agree.

1.

Public entities have broad immunity from liability for

injuries suffered by an inpatient of a mental institution. (§ 854.8,

subd. (a)(2); Lockhart v. County of Los Angeles (2007) 155

Cal.App.4th 289, 292 (Lockhart); Guzman v. County of Los

Angeles (1991) 234 Cal.App.3d 1343, 1348-1349.) Specifically, the

governing statute provides: “Notwithstanding any other provision

of this part, except as provided in this section and in Sections 814,

814.2, 855, and 855.2, a public entity is not liable for: [¶] . . . [¶]

(2) An injury to an inpatient of a mental institution.” (§ 854.8,

subdivision (a)(2), italics added.)

Section 854.8 means that a public entity generally cannot

be directly sued for negligence or other torts committed by its

employees that injure an inpatient at a mental institution.

(County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839,

844.) As the language italicized above makes clear, section 854.8

immunity prevails over all liability provisions of the Act—with

the exception of sections 814, 814.2, 855, and 855.2. (Guess v.

State of California (1979) 96 Cal.App.3d 111, 119; see Dept. of

State Hospitals, supra, 61 Cal.4th at p. 348; Creason v.

Department of Health Services (1998) 18 Cal.4th 623, 635.)

Doe relies largely on section 855. (§ 854.8, subdivision

(a)(2).) Section 855, subdivision (a), provides: “A public entity

that operates or maintains any medical facility that is subject to

regulation by the State Department of Health Services, Social

Services, Developmental Services, or Mental Health is liable for

injury proximately caused by the failure of the public entity to

provide adequate or sufficient equipment, personnel or facilities

4

required by any statute or any regulation . . . prescribing

minimum standards for equipment, personnel or facilities, unless

the public entity establishes that it exercised reasonable diligence

to comply with the applicable statute or regulation.” (Italics

added.)

Section 855 does not apply when a plaintiff points to a

purported violation of any other statute or regulation. (Lockhart,

supra, 155 Cal.App.4th at pp. 307-308.) Rather, section 855,

subdivision (a), is properly understood to impose liability “only

when the statute or regulation sets forth a specific standard that

gives the public medical facility clear notice as to the minimum

requirements with which it must comply.” (Lockhart, supra, at p.

308, italics added.)

2.

Doe contends that a different provision of the Act, section

815.2, establishes minimum personnel standards that trigger

liability under section 855. The trial court erred by accepting her

argument.

First, section 815.2 does not set any minimum standard for

personnel. Section 815.2 provides: “(a) 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. [¶] (b) Except as otherwise provided by statute, a

public entity is not liable for an injury resulting from an act or

omission of an employee of the public entity where the employee

is immune from liability.” Furthermore, even if we accept (for

the sake of argument) Doe’s construction of section 855 under the

last antecedent rule (see White v. County of Sacramento (1982) 31

Cal.3d 676, 679), section 815.2 does not require any “public entity

to provide adequate or sufficient equipment, personnel or

facilities.” (§ 855.)

5

Second, Doe’s argument fails for another, more

fundamental reason: immunity under section 854.8, subdivision

(a), is subject only to the exceptions set out expressly in the

statute itself. Section 815.2 is not one of the exceptions. (See

§ 854.8, subd. (a) [“Notwithstanding any other provision of this

part, except as provided in this section and in Sections 814, 814.2,

855, and 855.2 . . . .”].) Section 815.2 is, instead, merely a general

liability provision of the Act, establishing vicarious liability for

the acts or omissions of government employees. It is trumped by

the specific immunity provision of section 854.8. (See Dept. of

State Hospitals, supra, 61 Cal.4th at p. 348 [“[e]ven when a duty

exists, California has enacted specific immunity statutes that, if

applicable, prevail over liability provisions”]; Creason v.

Department of Health Services, supra, 18 Cal.4th at p. 635 [“[i]f a

specific immunity statute applies, it ‘cannot be abrogated by a

statute which simply imposes a general legal duty or liability’ ”].)

We must reject the trial court’s interpretation of the Act. If

a public agency can be vicariously liable, under section 815.2,

whenever an employee of a mental institution injures a patient, it

would eviscerate the immunity provided in section 854.8,

subdivision (a)(2), and undercut the structure of the Act.

3.

Doe insists that she should be granted leave to amend so

that she may have another opportunity to allege that her claims

fall within the section 855 exception. We disagree.

Leave to amend should be granted if the plaintiff

demonstrates that there is a reasonable possibility a defect can

be cured by amendment. (Zelig v. County of Los Angeles (2002)

27 Cal.4th 1112, 1126.)

In her return, Doe contends she can amend her complaint

to allege that the Department violated other statutes and

regulations, including Penal Code section 11166, subdivision (a),

6

which requires mandated reporters to report known or suspected

instances of child abuse. (See also Cal. Code Regs., tit. 22, §

71567, subd. (a)(2) [psychiatric hospitals shall report “allegations

of sexual assault of a patient . . . within 24 hours after

detection”].) But neither the statute nor the regulation

“prescrib[es] minimum standards for equipment, personnel or

facilities.” (Gov. Code, § 855, subd. (a); Lockhart, supra, 155

Cal.App.4th at p. 307.) Furthermore, Doe does not indicate that

she can amend her complaint to allege facts showing how these

provisions were violated or proximately caused her injury.

Doe also maintains that the Department violated various

staffing regulations—such as California Code of Regulations, title

22, section 71225, subdivision (c), which requires an acute

psychiatric hospital to provide “[a] sufficient number of

appropriate personnel . . . for the safety of the patients.” (See

also Cal. Code Regs., tit. 22, § 71501, subd. (a)(3) [mandating

provision of “appropriate physical resources and personnel”]; id. §

71641, subd. (a) [“[H]ospital shall be clean, sanitary, and in good

repair at all times. Maintenance shall include provision and

surveillance of services and procedures for the safety and well-

being of patients, personnel and visitors.”]; id. § 71521, subd. (a)

[“hospital shall recruit qualified personnel and provide initial

orientation of new employees, a continuing in-service training

program and competent supervision designed to improve patient

care and employee efficiency”].)

Again, Doe does not demonstrate how she can factually

allege the Department’s failure to comply with the above

regulations. Furthermore, all of the statutes and regulations she

points to are too general to trigger the section 855 exception.

(See Lockhart, supra, 155 Cal.App.4th at pp. 307-308.) Lockhart

specifically held that regulations providing only broad goals—

such as requiring “ ‘sufficient’ ” staff or equipment—are

inadequate to trigger section 855 because they do not specifically

7

direct the manner in which the goal is to be attained. (Lockhart,

at pp. 293, 308.) “The plain language of . . . section 855 clearly

states that not all statutory or regulatory violations will provide a

basis for liability, only those that prescribe minimum

standards. . . . [Accordingly], regulations sufficient to establish

liability under . . . section 855 must require something specific of

the public entity, and not simply set forth a goal, leaving it to the

entity’s discretion as to how to meet that goal.” (Lockhart, supra,

at p. 309.)

None of the regulations Doe cites provide a “specific

minimum standard” sufficient to put the Department on “notice

as to the minimum requirements with which it must comply.”

(Lockhart, supra, 155 Cal.App.4th at p. 308.) The same holds

true for Welfare and Institutions Code section 5325.1,

subdivisions (b) and (c), which recognize the rights of persons

with mental illness “to dignity, privacy, and humane care” and

“to be free from harm, including unnecessary or excessive

physical restraint, isolation, medication, abuse, or neglect.”

Doe relies on a decision reached by this Division, in Baber

v. Napa State Hospital (1989) 209 Cal.App.3d 213 (Baber), to

support her assertion that she can establish a basis for liability

under section 855, subdivision (a), by alleging the Department

violated generally worded regulations.

In Baber, supra, 209 Cal.App.3d 213, the plaintiff sought to

hold a public entity liable under section 855, subdivision (a), for

violating similar regulations—i.e., those requiring “ ‘adequate

space . . . to meet the needs of the [medical] service,’ ” “ ‘[a]

sufficient number of appropriate personnel,’ ” “ ‘appropriate

physical resources and personnel,’ ” and that “ ‘[t]he hospital . . .

be clean, sanitary, and in good repair at all times.’ ” (Baber,

supra, at p. 220.) Despite the statutory language indicating that

qualifying regulations must “ ‘prescrib[e] minimum standards for

equipment, personnel or facilities,’ ” the Baber court rejected the

8

public entity’s position that the standards were insufficiently

quantifiable or objective for a purported violation to overcome

immunity. (Id. at pp. 217, 220.)

In reaching that determination, the Baber court explained

that when the Legislature entrusted rulemaking authority to the

Department of Health Services (former Health & Saf. Code,

§§ 1275, 1276), the agency was granted the authority to adopt

broad and flexible standards. (Baber, supra, 209 Cal.App.3d at

pp. 219-220.) Baber also reasoned that, in the absence of

sufficiently specific regulations, minimum standards could be

established by collateral evidence—such as industry standards,

“correspondence, directives, inspection reports or other official

memoranda indicating more specifically what was required of the

hospital during the relevant time period.” (Id. at pp. 220-221.)

The Second District Court of Appeal, in Lockhart, explicitly

disagreed with Baber’s interpretation of section 855, subdivision

(a), noting its conflict with the statute’s plain language.

(Lockhart, supra, 155 Cal.App.4th at pp. 308-309.)

We decline Doe’s request to ignore Lockhart and apply

Baber instead. Notably, in the 15 years since Lockhart was

decided, no published opinion has favored the Baber court’s

statutory construction over Lockhart’s. And our colleagues in

Division Four of this Court have explicitly rejected the notion

that broadly stated goals in regulations—such as those requiring

hospitals to be “ ‘in good repair’ ” and entitling psychiatric

patients “ ‘to be free from harm’ ”—are “minimum standards”

sufficient to form the basis for liability under section 855,

subdivision (a). (See Johnson v. Alameda County Medical Center

(2012) 205 Cal.App.4th 521, 529-530; but see id., at p. 530.)

We conclude that Lockhart’s reasoning is more persuasive

than Baber’s. Baber’s holding—that section 855, subdivision (a),

applies in the absence of any statute or regulation prescribing a

minimum standard for equipment, personnel or facilities—is

9

inconsistent with the plain language of section 855, subdivision

(a). Accordingly, we disapprove Baber and instead follow

Lockhart. Because Baber was both wrongly decided and has not

been followed by other courts of appeal, overruling it will not

undermine the orderly administration of justice. (See Estate of

Sapp (2019) 36 Cal.App.5th 86, 109 & fn. 9.)

Doe fails to demonstrate that she can allege the

Department’s violation of any minimum standard sufficient to

form the basis for liability under Government Code section 855,

subdivision (a). Accordingly, the trial court erred to the extent it

both overruled the Department’s demurrer on immunity grounds

and sustained it with leave to amend.3

DISPOSITION

Let a peremptory writ of mandate issue directing the

superior court to vacate its order sustaining in part and

overruling in part the Department’s demurrer, and to enter a

new order sustaining the demurrer, without leave to amend, on

the ground that the Department is immune under section 854.8,

subdivision (a)(2). The Department is entitled to its costs in this

writ proceeding. (Cal. Rules of Court, rule 8.493(a).)

3 We need not address the Department’s alternative

argument—that Doe’s causes of action are barred because she did

not present a claim within six months of when her cause of action

accrued (Gov. Code, §§ 911.2, 945.4) and that the trial court erred

in its construction of Code of Civil Procedure section 340.1,

subdivision (q). We note only that the Legislature recently

enacted another amendment to Code of Civil Procedure section

340.1, which will become effective on January 1, 2023. (See Stats.

2022, ch. 444, § 1 [enacted Sep. 19, 2022].)

10

______________________

BURNS, J.

We concur:

____________________________

JACKSON, P.J.

____________________________

WISEMAN, J.*

A164384

* Retired Associate Justice of the Court of Appeal, Fifth

Appellate District, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

11

Napa County Superior Court No. 21CV000760, Hon. Victoria D.

Wood.

Rob Bonta, Attorney General, Danielle F. O’Bannon, Senior

Assistant Attorney General, Lora D. Curtis, Supervising Deputy

Attorney General, and Michelle D. Magarrell and Amie Bears,

Deputy Attorneys General, for Petitioner.

Arias Sanguinetti Wang & Torrijos, LLP and Mike Arias, Elise R.

Sanguinetti and Jamie G. Goldstein; Esner, Chang & Boyer and

Stuart B. Esner and Holly N. Boyer, for Real Party in Interest.

12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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