Angie M. v. County of Los Angeles
Filed 8/17/07 Angie M. v. County of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ANGIE M., Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. | B193190 (Los Angeles County Super. Ct. No. BC339178) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert Hess, Judge. Affirmed.
Law Offices of Thomas Edward Wall and Thomas Edward Wall for Plaintiff and Appellant.
Monroy, Averbuck & Gysler, Clayton C. Averbuck and Jennifer E. Gysler for Defendant and Respondent.
Plaintiff and appellant Angie M. (plaintiff) appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrers of defendant County of Los Angeles (defendant) to plaintiffs second amended complaint (SAC). We affirm.
BACKGROUND
In August 2000, plaintiff was declared a dependent of the juvenile court and placed in the care and custody of the Los Angeles County Department of Children and Family Services (DCFS). She was 12 years old at the time.[1] Over the next four years, DCFS placed her in several different foster homes and agencies, but plaintiff repeatedly ran away and eventually became involved in unlawful drug and sexual involvement.
A DCFS social worker visited plaintiff at her foster home on May 13, 2004. Plaintiff was then 16 years old. Sometime between May 13 and June 27, plaintiff again ran away from her foster home. On June 27, while still missing from the foster home, plaintiff was raped by four assailants armed with a gun.
Plaintiff commenced this action in August 2005, alleging a single claim for negligence. The trial court sustained defendants demurrer and granted plaintiff leave to amend. Plaintiff filed a first amended complaint in January 2006, adding an allegation that DCFS had breached a mandatory duty to care for and protect the children that the state places into foster care under Welfare and Institutions Code, section 16000.1. The trial court sustained defendants demurrer on the ground that plaintiff had failed to allege the breach of a mandatory duty by defendant, as required by Government Code section 815.6. The trial court again gave plaintiff leave to amend.
Plaintiff filed the SAC in April 2006. Plaintiff abandoned her allegation that DCFS had violated Welfare and Institutions Code, section 16000.1. Instead, plaintiff alleged that DCFS had breached a mandatory duty under section 31-320 of the California Department of Social Services Manual of Policies and Procedures Regulations (DSS Manual),[2]which requires that a DCFS social worker visit a child in foster care at least once each calendar month. DCFS breached this duty, plaintiff alleged, because a social worker had last visited plaintiff on May 13, 2004, over one calendar month prior to the rape on June 27, 2004.
The trial court sustained defendants demurrer to the SAC without leave to amend, concluding that plaintiff had failed to allege that DCFS had breached its duty under DSS Manual section 31-320, and also had failed to establish a reasonable likelihood that she could cure the defect by amendment. The trial court entered a judgment of dismissal on June 14, 2006. Plaintiff timely appealed.
DISCUSSION
A. Standard Of Review
When reviewing a trial courts order sustaining a demurrer, we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828.) We do not, however, assume the truth of contentions, deductions or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The judgment must be affirmed if any one of several grounds of demurrer is well taken. (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21.) [W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citations]. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
B. The Trial Court Properly Sustained Defendants Demurrer Without Leave to Amend
Government Code section 815.6 provides, Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. The courts of appeal have held that the regulations set forth in the DSS Manual are enactment[s] and that the monthly visitation requirement of DSS Manual section 31-320 is a mandatory duty within the meaning of Government Code section 815.6. (Alliance for Childrens Rights v. Los Angeles County Dept. of Children and Family Services (2002) 95 Cal.App.4th 1129, 1142; Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 142 [former section 30-342, now section 31-320].)[3] The issues on this appeal, therefore, are whether plaintiff adequately alleged that DCFS fail[ed] to discharge its duty to plaintiff under DSS Manual section 31-320,[4]and if not, whether plaintiff established a reasonable likelihood that she could cure her defective pleading by amendment. In view of our conclusion, it is not necessary to discuss other possible grounds for sustaining the demurrer without leave to amend.
DSS Manual section 31-320.4 provides: The social worker/probation officer shall do the following for each child with an approved case plan who is placed in out-of-home care with a relative, foster family home, FFA, or a legal guardian: [] .41 Visit the child at least once each calendar month. The regulation provides for less frequent visitation only if specified criteria are met and the social worker obtains written supervisory approval. (DSS Manual 31-320.411 to 31-320.413.) The visitation requirements of section 31-320.4 do not apply, however, if [t]he childs whereabouts are unknown and the court has been informed. (DSS Manual 31-320.53.)
Plaintiff alleged in the SAC that prior to the rape of June 27, 2004 a social worker had not visited the plaintiff since May 13, 2004. This is inadequate to allege that DCFS breached its duty under DSS Manual section 31-320. DSS Manual section 31-320.41 requires that the social worker visit only once each calendar month (italics added). According to the SAC, a social worker visited plaintiff in May, and the calendar month of June was not yet over when plaintiff was raped. Accordingly, when plaintiff ran away from her foster home in May or June 2004 and was subsequently raped on June 27, DCFS was in compliance with its obligation to visit plaintiff once each calendar month under section 31-320.4. Plaintiff did not allege that DCFS failed to visit plaintiff in June after the rape, and any such allegation would be legally irrelevant a breach of duty by DCFS occurring after the rape could not be the proximate cause of plaintiffs harm.
On appeal, plaintiff argues that there were many times the social worker did not visit [her] before the rape. Plaintiffs pleading, however, was based solely on the one allegedly missed visit between May 13 and June 27, 2004. The SAC contains no allegation that DCFS breached its duty to visit plaintiff at any time between August 2000 and May 13, 2004. The SAC thus fails to allege a violation of DSS Manual section 31-320.
In the trial court, plaintiff argued that the term calendar month, as used in DSS Manual section 31-320.41, should be construed to mean 30 days. Plaintiff does not repeat that contention on appeal, and there is no authority to support it. Further, the plain language of the DSS Manual is not susceptible to plaintiffs construction. As commonly understood, the term calendar month means [o]ne of the 12 divisions of a year as determined by a calendar, especially the Gregorian calendar. Also called calendar month. (The American Heritage Dictionary of the English Language (4th ed. 2004)
The trial court did not abuse its discretion in denying plaintiff leave to amend. As noted above, plaintiff bears to the burden to establish a reasonable possibility that she could amend the complaint to state a claim. (Zelig v. County of Los Angeles, supra, 27 Cal. 4th at p. 1126.) To meet that burden, [p]laintiff must show in what manner [s]he can amend [her] complaint and how that amendment will change the legal effect of [her] pleading. [Citation.] (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.)
Plaintiff has had three opportunities to state a claim. At the hearing on the demurrer, the trial court patiently explored with plaintiffs counsel whether plaintiff could possibly state facts that are going to substantiate a claim here[.] Plaintiffs counsel was unable to identify any facts that plaintiff could plead to cure the defect in the SAC, nor has plaintiff identified any such facts on appeal. Plaintiffs failure in this regard is significant, as it appears that plaintiffs counsel was provided the juvenile court records pertaining to plaintiffs claim on December 23, 2004 eight months before she filed her first complaint in this action, and 16 months before she filed the SAC.[5]Further, Plaintiff has, in effect, admitted that she has no knowledge and no record of any additional facts tending to establish a violation of section 31-320. Plaintiff therefore has failed to establish a reasonable likelihood that she can amend her complaint to state a claim.
DISPOSITION
The judgment of dismissal is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
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[1] Plaintiff was born in October 1987.
[2] The DSS Manual is published on the State of Californias Web site at http://www.cdss.ca.gov/ord/CDSSManual_240.htm (accessed August 17, 2007). The regulations in the DSS Manual have the force of law and are matters subject to mandatory judicial notice. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 145.) We therefore grant defendants request to take judicial notice of DSS Manual section 31-320.
[3] Defendant does not contend that the harm suffered by plaintiff is not a particular kind of injury that Section 31-320 was designed to protect against. (Gov. Code, 815.6.) That issue is therefore not before us.
[4] Plaintiff does not argue that the trial court erred in sustaining the demurrer to her first amended complaint alleging a violation of Welfare and Institutions Code, section 16000.1. Plaintiff did not allege a violation of that provision in the SAC. Accordingly, we express no opinion regarding whether or to what extent Welfare and Institutions Code, section 16000.1 imposes a mandatory duty within the meaning of Government Code section 815.6.
[5] Plaintiffs counsel stated in a declaration to the Los Angeles County Board of Supervisors that he receive[d] the full records relating to plaintiffs claim on December 23, 2004. The declaration was before the trial court, without objection, when it denied plaintiff leave to amend, and is part of the record on appeal. Plaintiffs counsel informed the trial court that these records were the source of plaintiffs allegation that she was last visited by a social worker on May 13, 2004.
