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].)
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______________________
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