Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. 07-225512 Paul A. Vortmann, Judge.
Lang, Richert & Patch, Robert L. Patch II, David T. Richards, and Ana de Alba for Plaintiff and Appellant.
Kathleen Bales-Lange, County Counsel, and Kathleen A. Taylor, Deputy County Counsel; Weakley, Arendt & McGuire and James D. Weakley for Defendants and Respondents.
Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Defendants and Respondents.
OPINION
Gomes, J.
U.B. was severely injured while in his foster home. Through his guardian ad litem Dorothy Garcia, he sued, among others, the County of Tulare and its departments or divisions, the Health & Human Services Agency and Child Protective/Welfare Services (together the County), as well as its employees Adelita Felix, Marie Hernandez, Sharon Howell and Maria Focha (the County employees) (collectively the County defendants). U.B. sought damages for the alleged negligence of the County defendants in failing to consider that he might be the victim of child abuse after his biological mother reported three times that she saw bruises on him. The trial court granted the County and County employees’ motion for summary judgment. U.B. appealed from the resulting judgment. We hold, there being no factual dispute, that as a matter of law, the County and its employees are immune from liability for conduct in deciding whether to intervene in and remove a child from a placement. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
When he was six months old, U.B. was removed from the custody of his biological mother, Erica O. The County placed him with Aspira Foster and Family Services, a foster family agency, for placement in a certified foster home with his sister. The County of Tulare is not involved in the licensing of foster family agencies or the selection, training and certification of certified foster parents.
On September 12, 2006, Aspira placed U.B. in the home of new foster parents, Jennifer and Christopher Contreras, where he remained until October 26, 2006. During that time, County social workers Marie Hernandez and Sharon Howell had face-to-face contact with U.B. and his foster mother, Jennifer Contreras.
While in the Contreras home, three incidents of bruising on U.B. were reported to County social workers. On September 28, 2006, Erica told Hernandez that she saw bruises on U.B. during a supervised visit the prior week, which she reported to social worker Adelita Felix, who said she would pass the information on to Hernandez. Hernandez said she had not been informed of the bruising and Felix was not in the office to ask, so she would talk to Felix “next week when she return[s].” After this, Hernandez told team leader Karen Whited about Erica’s allegation that she showed Felix the bruises, and said that Felix had never approached her about it. Whited responded that Felix had not approached her either. Hernandez did not remember if Whited suggested she do anything to investigate the claims of bruising.
On October 4, 2006, Hernandez received a call from Aspira social worker Shamra Tripp. Tripp said Jennifer had contacted her to report she had noticed a red mark on U.B.’s face that resembled a rash, and then later reported the mark had turned into a bruise. Jennifer told Tripp they provide respite care for a three year old and explained Christopher had turned his back for awhile while U.B. was on the floor, and when he heard U.B. crying, he found the three year old standing over U.B., holding a toy. Jennifer said the three year old had not been violent before and they would keep a closer eye on the children and not leave them unsupervised. Tripp told Jennifer to talk to Erica immediately regarding the bruise and to tell her to call the agency if she had questions.
On October 9, 2006, Erica called Hernandez and asked whether she had spoken to the supervisor regarding the bruises Erica noticed at the last visit. Hernandez said she “forgot to mention bruises” to Felix as “she was not back at work, ” and she also had forgotten to mention the new bruise. Hernandez then told Erica about the bruise on U.B.’s cheek that Jennifer had reported. Hernandez stated the Contrerases did not watch the other child anymore and Tripp had advised that Erica should call Aspira if she had any questions. Erica stated “she did not understand why the children were detained from her and being hurt in foster care.”
In a social worker report prepared for the dependency case, signed on October 10, 2006, Hernandez and her team leader, Karen Whited, reported these incidents to the juvenile court. Hernandez related her September 28 interaction with Erica and explained that Erica told her she noticed a bruise on U.B.’s back during her September 27 visit with him, about which she had spoken to Felix. Hernandez said she had not been informed previously about the marks and would speak to Felix about them, but she had not been able to do so because Felix was on medical leave and had been out of the office for over two weeks. Hernandez also reported the October 4 call from Tripp and explained that Tripp had encouraged Jennifer to tell Erica about the mark at the visit scheduled for October 4, but the visit was cancelled when Erica was over 15 minutes late.
On October 19, 2006, Erica had a visit with U.B. that was supervised by case aide Pedro Martinez. Martinez reported that Erica checked U.B. for bruises and stated he had a bruise on his back, another on his face and one on his leg. Erica and her friend, who was present at the visit, took pictures of the bruises with their cell phones. Martinez did not see any marks other than a small scratch on the baby’s cheek that looked like it had been caused by scratching himself. Martinez called in social worker Sharon Howell to observe the marks. Howell told Erica the marks looked to be from the baby crawling over toys or learning to crawl. Martinez noted the marks were smaller than a fingerprint. Hernandez spoke with Martinez that day, who told her about Erica’s claims that U.B. was bruised and that Howell visually inspected the bruises and attributed them to a baby learning to crawl.
This was the third time Hernandez was advised of bruising in less than a month. At that point, it did not occur to Hernandez that U.B. might be in an unsafe situation or that she should do a safety or risk assessment to see if U.B. was properly placed in the foster home. Hernandez did not call Aspira to ask for a conference or to see if she could talk to the foster parents directly. Hernandez did not remember if she spoke with her supervisor, but it was safe to say that she thought U.B. was safe and she did not think it was necessary to do a risk assessment. Hernandez did not remember if she spoke directly with Howell that day about the bruises. Hernandez did not consider calling law enforcement or community care licensing to have them look into the matter, and did not consider that U.B. might be in an unsafe situation.
On October 26, 2006, Jennifer Contreras took U.B. to the hospital, where he was diagnosed with a subdural hematoma, positive head trauma and bilateral chest wall bruising. After transfer to Children’s Hospital Central California, he was diagnosed with Shaken Baby Syndrome.
This Lawsuit
On April 19, 2007, U.B. filed a government tort claim, which was rejected on May 8, 2007. On October 10, 2007, U.B. filed a complaint for damages. U.B. later filed a second amended complaint, which contained causes of action against the County employees for (1) negligence (second cause of action), (2) negligent entrustment (fourth cause of action), and (3) negligent supervision, training and authorization (sixth cause of action). The second amended complaint also contained causes of action against the County and each named individual County employee for: (1) failure to discharge a mandatory duty under Welfare and Institutions Code section 324.5 (the ninth, eleventh, thirteenth, fifteenth and seventeenth causes of action), and (2) failure to discharge a mandatory duty under Penal Code section 11166 (the tenth, twelfth, fourteenth, sixteenth and eighteenth causes of action).
The original complaint also named as a defendant Moss Beach Homes, Inc., a California Corporation, dba Aspira Foster & Family Services, which is the private entity that licensed and operated the foster home where U.B. was placed. U.B.’s claims against Aspira were resolved at mediation on December 10, 2008, and it was ultimately dismissed from the action. Jennifer and Christopher Contreras were also named as defendants in the original complaint. They were dismissed from the action without prejudice in June 2009.
The three causes of action against the County employees are based on allegations that they were negligent in: (1) causing U.B. to be placed in a foster home without proper supervision or training; (2) supervising, training, managing or licensing persons to care for or be in contact with U.B. so as to cause him harm; and (3) failing to consider U.B. might be a victim of child abuse or to remove him from the foster home after notice of potential abuse. The remaining causes of action against the County defendants are based on allegations that U.B.’s biological mother and others reported bruising or child abuse to the County defendants, yet they failed to (1) have U.B. examined by a healthcare professional within 72 hours from the time the allegations were made in violation of their mandatory duty under Welfare and Institutions Code section 324.5, and (2) report the allegations to any law enforcement agency in violation of their mandatory duty under Penal Code section 11166.
The Summary Judgment Motion
The County defendants filed a motion for summary judgment or, in the alternative, summary adjudication. In the notice of motion, the County defendants asserted they were entitled to summary judgment because all causes of action against them were defeated by immunity, and alternatively they were entitled to summary adjudication as follows: (1) the second and fourth causes of action against the County employees - each individual defendant was entitled to immunity; (2) the sixth cause of action against the County employees - each individual defendant is immunized against liability and had no duty in connection with the allegations; (3) the ninth, eleventh, thirteenth, fifteenth and seventeenth causes of action against the County defendants - each defendant is immunized against liability and the causes of action are barred by the Government Tort Claims Act; and (4) the tenth, twelfth, fourteenth and eighteenth causes of action against the County defendants - the causes of action are barred by the Government Tort Claims Act.
The County defendants’ separate statement is comprised of the following eight facts: (1) “Plaintiff was placed with Aspira, a foster family agency, on September 5, 2006, for placement in a certified home with his sister”; (2) “On September 12, 2006, Aspira placed [U.B.] with Jennifer and Christopher Contreras”; (3) “County Social Workers Marie Hernandez and Sharon Howell had face to face contact with the plaintiff and with his foster mother, Jennifer Contreras, between September 12, 2006, and the time plaintiff was hospitalized”; (4) “The County of Tulare is not involved in the licensing of foster family agencies or the selection, training and certification of certified foster parents”; (5) “On April 19, 2007, plaintiff filed a government tort claim alleging that Defendants ‘did the following things:... ’”; (6) “The plaintiff’s government tort claim was rejected on May 8, 2007”; (7) “Plaintiff’s Complaint for Damages was filed October 10, 2007. It did not allege a violation of Welfare and Institutions Code section 324.5.”; and (8) “Plaintiff’s initial Complaint did not allege a violation of [Penal] Code section 11166.”
In their points and authorities, the County employees contended they were entitled to immunity because social workers have broad prosecutorial and discretionary immunity for their actions in connection with the provision of child welfare services, which extends to decisions related to the placement of children and whether to retain a child in a particular placement, as well as the supervision of foster homes and the determination as to what, if any, investigation or inquiry is warranted under particular circumstances. In addition, the County employees asserted they did not have a duty to train or supervise the foster care providers because the County is not involved in the licensing of foster family agencies, which are responsible for evaluating and assessing potential certified foster family homes. The County defendants further argued that Welfare and Institutions Code section 324.5 does not involve a mandatory duty, therefore immunity also applies, and the causes of action premised on that section, as well as the ones based on Penal Code section 11166, were barred because they were not included in the original government tort claim or complaint.
In his opposition to the motion, U.B. asserted the County failed to meet its burden on summary judgment because the County employees did not provide any undisputed facts in support of the motion as to the causes of action that apply to them, and therefore the motion must be denied as to the County employees. U.B. further asserted the County misrepresented his allegations as negligence in his placement and failure to remove him from his placement, when the “true nature” of his allegations is that “the County employees charged with the legal duty to keep [U.B.] safe while in County’s custody, failed to properly respond to three incidents of bruising.” U.B. argued that once a child has been removed from his parents and placed in the County’s custody, a different analysis applies that does not implicate the immunities upon which the County relied. U.B. further asserted that to be entitled to discretionary immunity, a public entity must show that its employees in fact exercised discretion by engaging in a balancing of risks and advantages, and there was no evidence that any of the County employees considered child abuse and exercised discretion in the decisions they made.
U.B. further asserted with respect to the sixth cause of action for negligent supervision that the County employees cannot argue they should be relieved from civil liability because U.B. was placed with Aspira, as Howell and Hernandez both agreed in deposition testimony that even when a child is placed in a foster family agency, the assigned social worker has the right, if not the obligation, to take steps necessary to insure the safety and well-being of the child. Finally, with respect to the causes of action based on Welfare and Institutions Code section 324.5, U.B. contended that section imposed a mandatory duty and his tort claim encompassed this claim. U.B. did not present any argument with respect to the causes of action based on the alleged failure to comply with Penal Code section 11166.
U.B. did not dispute any of the facts submitted with the County defendants’ motion. He did, however, submit his own separate statement of disputed material facts, which contained facts regarding Erica’s reports of bruising to social workers Felix and Hernandez, as well as to Martinez, and the social workers’ responses.
In reply, the County defendants argued that California courts have determined that a social worker is immune from liability for negligent supervision of a foster child unless the social worker fails to provide specific services mandated by statute or regulation, and a social worker is not required to prove they went through a particular analysis in response to information for the immunity to apply. The County defendants argued nevertheless that the social workers had discretion to determine the proper response to the reports of bruising, and they exercised that discretion by deciding to talk to Felix upon her return from medical leave and examining the bruises and attributing them to U.B. learning to crawl.
At the conclusion of oral argument, the trial court granted the motion as to all causes of action against the County defendants. In a written order, the court explained there were no triable issues of material fact and the issues raised in the pleadings could be decided as a matter of law with respect to the negligence claims on the grounds that the causes of action were defeated by immunity or the fact that the defendants had no duty. The court also found immunity applied to the causes of action arising from an alleged breach of Welfare and Institutions Code section 324.5, as the requirement is discretionary, not mandatory. Finally, with respect to the causes of action arising from an alleged breach of Penal Code section 11166, the trial court found that the duty to report arises only when the party is placed on notice that abuse has taken place, and there were no facts that the County defendants knew, or suspected, abuse.
DISCUSSION
On appeal, U.B. challenges only the trial court’s finding that the County defendants are entitled to discretionary immunity with respect to his claim that they failed to consider he was the victim of child abuse. Specifically, he contends the trial court erred in granting the summary judgment motion because (1) the County defendants failed to produce evidence with their moving papers to show that the County employees actually exercised discretion after receiving the reports of bruising, and the evidence he produced shows they did not exercise discretion as they failed to consider whether he was a victim of child abuse, and (2) the County employees are not immune from liability because they were engaged in a purely ministerial function of removing children from unsafe environments.
Standard of Review
Summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.)
“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776.) “‘All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment.’” (Ibid.) An order granting summary judgment is reviewed de novo. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408.)
Discretionary Immunity
Although the second amended complaint contains numerous allegations against the County defendants relating to his foster home placement and supervision while there, on appeal U.B. asserts his key allegation against the County defendants is that “the County employees[] ‘failed to consider that Plaintiff might be a victim of child abuse and, therefore, Plaintiff continued to remain in an unsafe foster home environment.’” U.B. contends that the County defendants are not immune from liability for this failure because it occurred after he was removed from his biological mother’s custody and placed under the County’s care and custody.
“In California, all government tort liability must be based on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457 (Becerra); Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 979-980 (Wilson).) “Under the provisions of the California Tort Claims Act, ‘a public employee is liable for injury caused by his act or omission to the same extent as a private person, ’ except as otherwise specifically provided by statute. (Gov. Code, § 820, subd. (a), italics added.) In addition, the Tort Claims Act further 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... have given rise to a cause of action against that employee, ’ unless ‘the employee is immune from liability.’ (Gov. Code, § 815.2, subds. (a), (b), italics added.)” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715.)
All further statutory references are to the Government Code, unless otherwise stated.
Thus, the Tort Claims Act “establishes the basic rules that public entities are immune from liability except as provided by statute (§ 815, subd. (a)), that public employees are liable for their torts except as otherwise provided by statute (§ 820, subd. (a)), that public entities are vicariously liable for the torts of their employees (§ 815.2, subd. (a)), and that public entities are immune where their employees are immune, except as otherwise provided by statute (§ 815.2, subd. (b)).” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980 (Caldwell).)
California’s common law has long provided personal immunity from lawsuits challenging a governmental official’s discretionary acts within the scope of authority. (Caldwell, supra, 10 Cal.4th at p. 979.) The traditional immunity for discretionary acts is addressed in the Tort Claims Act under section 820.2, which states that “‘[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.’” (Caldwell, supra, 10 Cal.4th at p. 980.)
Discretionary immunity under section 820.2 has been found to apply to many areas of social work. Courts have found that the investigation of child abuse, removal of a minor, instigation of dependency proceedings, and processing adoptions are discretionary functions for which social workers are immune under section 820.2. (Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 899 (Ronald S.); Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 882-883 (Alicia T.); Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283.) Immunity is provided because these undertakings require the continuing exercise of discretion by the social workers in favor of protecting children. (Alicia T., supra, at p. 883.)
The County defendants argue the statutory immunity for discretionary decisions similarly precludes liability for the County’s foster care placement decisions, as well as for its supervision of dependent minors in placement, including investigation of the allegations of bruising made here. The County defendants rely primarily on the decisions in Becerra and County of Los Angeles v. Superior Court (Terrell R.) (2002) 102 Cal.App.4th 627 (Terrell R.).
The courts in Becerra and Terrell R. concluded that the determination to place a child in a particular foster home constitutes an activity of a co-equal branch of government involving discretionary decisions which are beyond the proper scope of court review. With respect to such a determination, the social worker and the County are immune from liability pursuant to section 820.2. (Becerra, supra, 68 Cal.App.4th at pp. 1462-1465; Terrell R., supra, 102 Cal.App.4th at pp. 644-645.) Likewise, social workers are immune from suit for their decision whether to intervene in a placement. (Becerra, supra, at pp. 1465-1466; Terrell R., supra, at pp. 644-645.)
In Becerra, after the plaintiff’s child, who had been placed in foster care, was found murdered, the plaintiff brought suit against the county and its social workers alleging breach of mandatory duties and negligence in, among other things, “‘failing to supervise, investigate and intervene when placed on notice that [the decedent child] was not receiving adequate supervision.’” (Becerra, supra, 68 Cal.App.4th at p. 1465.) The plaintiff asserted the county was obligated to remove the child from her detrimental environment and place her in a more secure one. (Id. at pp. 1465-1466.)
The appellate court rejected this argument, explaining: “We are not persuaded that the intervention and change in placement advocated by appellant are any less ‘discretionary’ for purposes of the immunity of Government Code section 820.2 than the original placement decision, which we have held to be immune from liability. In Thompson v. County of Alameda [(1980)] 27 Cal.3d 741, regarding a juvenile offender placed in his mother’s custody who killed a young child in the neighborhood, the Supreme Court held that a county is immune from liability ‘for its selection of a custodian as well as for its determination of the appropriate degree of supervision of the custodian’s efforts.’ [Citation.] [¶] Even if some activities in monitoring a placement might be considered ministerial (an issue we do not decide), the ultimate decision about which appellant complains here, whether to intervene and discontinue a child’s placement, is a discretionary placement decision. Like the adoption placement decision..., it bears the hallmarks of uniquely discretionary activity. ‘There is no way that the following of forms and rules or agency procedures could transmute this most subjective decisionmaking process into a ministerial act.’” (Becerra, supra, at p. 1466, italics added.)
Thus, under Becerra and Terrell R., the County employees are immune from liability for their supervision of U.B. while in his foster care placement, including any alleged failure to properly investigate the bruising allegations. In his briefs, U.B. makes no attempt to distinguish these cases. His attempt, at time of oral argument, fails. While he acknowledges social workers have a certain amount of immunity when determining whether a child should be removed from the care and custody of his or her biological parents, he contends immunity does not extend to social workers’ conduct after the child has been removed from the biological parents and is in the County’s exclusive care and custody. He urges us to follow the decision in Elton v. County of Orange (1970) 3 Cal.App.3d 1053 (Elton), in which the appellate court stated that decisions regarding the maintenance, care and supervision of a dependent child in a foster home did not achieve the level of basic policy decisions and thus were not entitled to immunity under section 820.2. (Elton, supra, 3 Cal.App.3d at p. 1058.)
We agree with the court in Becerra that Elton is not controlling authority because (1) it was decided prior to the adoption of statutes mandating the exercise of discretion by social workers and (2) the court in Ronald S., supra, “distinguished its own decision from Elton[, ]” and, “[c]alling Elton a ‘difficult decision, ’” explained: “‘Selecting and certifying a foster home for care of dependent children seems to us to be an activity loaded with subjective determinations and fraught with major possibilities of an erroneous decision. It appears to us that foster home placement, like adoption placement, constitutes an activity of a co-equal branch of government, and that the discretionary decisions made in connection therewith should be deemed beyond the proper scope of court review.’ (Ronald S. [], supra, 16 Cal.App.4th at p. 898.) We agree with this analysis, and hold that the placement decision in this case was immune from liability.” (Becerra, supra, 68 Cal.App.4th at p. 1464.)
U.B. also contends that the County employees cannot avail themselves of discretionary immunity unless they present evidence that they actually exercised discretion by showing they engaged in a conscious balancing of risks and benefits. U.B. asserts that the County employees’ failure to present such evidence with their moving papers required the trial court to deny the motion on the ground that the County defendants failed to meet their burden of proof on summary judgment.
Discretionary immunity, however, may be decided as a matter of law even in the absence of allegations or evidence that the public employee engaged in a conscious balancing of risks and benefits. (Caldwell, supra, 10 Cal.4th at p. 983.) While a finding of immunity is precluded “solely on grounds that ‘the [affected] employee’s general course of duties is “discretionary”... ’ [citation], and requires a showing that ‘the specific conduct giving rise to the suit’ involved an actual exercise of discretion, i.e., a ‘[conscious] balancing [of] risks and advantages’ [citation][, ]... “a strictly careful, thorough, formal, or correct evaluation” is not required. (Ibid.) As our Supreme Court explained, “[s]uch a standard would swallow an immunity designed to protect against claims of carelessness, malice, bad judgment, or abuse of discretion in the formulation of policy.” (Id. at pp. 983-984.) Thus, for example, where a complaint reveals allegations that an actual, conscious and considered policy decision was made, immunity may be found. (Id. at p. 984.)
Here, the essence of U.B.’s allegations against the County defendants in the second amended complaint is that they did not properly supervise U.B. after he was placed in foster care because they did not suspect child abuse after receiving reports of bruising and conduct an investigation consistent with that suspicion. As explained in Terrell R., “A county social worker is immune from liability for negligent supervision of a foster child unless the social worker fails to provide specific services mandated by statute or regulation.” (Terrell R., supra, 102 Cal.App.4th at p. 644.) U.B. does not contend on appeal that the County defendants failed to provide services mandated by statute or regulation; instead, he contends they failed to properly exercise their discretion when confronted with reports of bruising. Since U.B.’s claims arise from allegations of negligent supervision, discretionary immunity applies here.
Even if the County employees were required to present evidence that they exercised the requisite discretion, however, such evidence exists here. As the social worker’s log contained in the dependency court file shows, when Erica told Felix about the bruises, Felix told Erica she would inform Hernandez. After Erica asked Hernandez about the bruises, Hernandez told Erica she would talk to Felix when she returned from medical leave and also spoke to the team leader about them. When Hernandez received the second report of bruising through Tripp, Hernandez reported the incident to Erica and told her the child who apparently had caused the bruise was no longer in the home. Hernandez reported these incidents to the juvenile court and explained that she was planning on speaking to Felix about them, but Felix was out on medical leave. With respect to the third report of bruising, case aide Martinez called in social worker Howell, who examined U.B., attributed the bruises to learning to crawl and related the information to Hernandez. In sum, the record reflects the social workers made considered decisions after receiving reports of bruising - they decided to talk to each other about them, informed the juvenile court of them, and looked at the bruises and found innocent explanations for them.
U.B. contends the County employees did not exercise discretion because they did not suspect child abuse. Merely because they did not hold such a suspicion, however, does not mean they did not reach a considered decision when confronted with the reports of bruising. U.B.’s claim essentially is that the County employees improperly evaluated the claims of bruising. As our Supreme Court has stated, in exercising discretion “a strictly careful, thorough, formal, or correct evaluation” is not required. (Caldwell, supra, 10 Cal.4th at p. 983.) Thus, claims of improper evaluation cannot divest a discretionary policy decision of its immunity. (Id. at p. 984.)
While U.B. argues this case involves breach of the ministerial duty to “remove children from unsafe environments, ” deciding whether to remove a child, or whether to fully investigate reports of bruising, necessarily involves the exercise of discretion. The evaluation of information is an integral part of “the exercise of discretion” immunized by section 820.2. (Ortega v. Sacramento County Dept. of Health and Human Services (2008) 161 Cal.App.4th 713, 733.) Here, the County employees did evaluate the information received; they just did not evaluate it in the way U.B. claims they should have. Such a claim, however, amounts only to a claim of improper evaluation which does not divest the County employees from immunity.
Finally, U.B. contends the County defendants did not meet their burden of proof on summary judgment because they did not produce evidence of the exercise of their discretion. To the extent the County defendants were required to produce such evidence, U.B.’s opposition cured any defect. Since “[t]he express statutory language requires that the summary judgment motion be granted if ‘all’ the papers show the moving party is entitled to prevail” (Villa v. McFerren (1995) 35 Cal.App.4th 733, 751 (Villa)), “in determining whether the burden of proof has shifted, the trial court... must consider all of the papers before it.” (Ibid.) Consequently, cases have recognized a moving defendant “can... rely on filings by plaintiff in opposition” to satisfy its burden of showing the plaintiff’s causes of action have no merit. (Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122; see also Allyson v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1316.) “‘Th[e statute’s] unqualified reference to “the papers” before the court, without limitation to documents submitted with the original motion, also supports the reasonable inference that the court should consider all admissible evidence of which the opposing party has had notice and the opportunity to respond.’” (Villa, supra, 35 Cal.App.4h at p. 751.) As we have already discussed, there was evidence to show the County employees exercised discretion in deciding how to proceed with respect to the reports of bruising. Thus, U.B.’s claims that the trial court was required to deny the summary judgment on procedural grounds fail.
The County defendants’ duties to supervise dependent minors in placement involves inherently discretionary decisions. Because these duties are discretionary, not mandatory, the County employees are immune from liability for their conduct in performing them, as is the County.
Amicus California State Association of Counties argues in its brief that the County did not violate a mandatory duty because the statutes upon which U.B. relied to impose such a duty, namely Welfare and Institutions Code section 324.5 and Penal Code section 11166, are discretionary in nature. U.B. did not raise this issue in his opening brief. Accordingly, we find the arguments raised by amicus curiae on this issue beyond the scope of this appeal and waived. (See Mercury Casualty Co. v. Hertz Corp. (1997) 59 Cal.App.4th 414, 425 [as general rule, issues not raised by appealing parties may not be considered if raised for first time by amici curiae]; California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1274-1275 [“[a]mici curiae must take the case as they find it”].)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: Cornell, Acting P.J., Kane, J.