M.S. v. County of San Diego CA4/1

Filed 10/20/26 M.S. v. County of San Diego CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA M.S., D086445 Plaintiff and Appellant, v. (Super. Ct. No. 37-2022- 00040516-CU-PO-CTL) COUNTY OF SAN DIEGO, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Reversed. Herman Law and Sarah E. Serrano, for Plaintiff and Appellant. Office of County Counsel, Sofia L. Rezvani and Lindsey M. Burnette, for Defendant and Respondent.  Plaintiff M.S. sued the County of San Diego (the County) alleging its employee negligently failed to protect her from sexual abuse when she was a child in foster care nearly 40 years ago. The superior court granted summary judgment in favor of the County, concluding it was entitled to discretionary act immunity under Government Code1 section 820.2. M.S. appeals, arguing discretionary act immunity does not apply. We agree with M.S. and find the County has not met its burden of establishing a County employee undertook the requisite conscious balancing of risks and advantages before making a decision regarding allegations of sexual abuse. The County argues we should still affirm because M.S. cannot establish that any employee knew of the risk of abuse before she was placed in the home and because the evidence does not otherwise show the social worker was negligent. The County also argues that, because M.S. cannot name the social worker to whom she reported the abuse, she cannot establish that any individual would be liable for negligence and, thus, cannot establish that the County is vicariously liable. Accepting M.S.’s evidence as true, she told her assigned social worker that she was being sexually abused, the social worker failed to intervene, and the abuse continued for months. We do not think her inability to name the specific County social worker defeats her claim. For these reasons, as explained more fully below, we reverse. FACTUAL AND PROCEDURAL BACKGROUND In 1985, when M.S. was approximately 11 years old, she was removed from the custody of her biological mother. In 1986, she was placed in a foster 1 Further undesignated statutory references are to the Government Code. 2 home with John and Linda DeMarco. M.S. was continually sexually abused by her foster brother while she resided in the DeMarco home. M.S. testified she was “visited by a social worker after the incidents [of abuse] first started to happen,” and she told the social worker her foster brother had been “standing at the door with his thing out, fondling his thing”; “[t]ouching [M.S.] on [her] vagina and on [her] breast”; and “[r]ubbing his penis on [her] vagina and putting his mouth at [her] vagina.” Although she reported the abuse to the same social worker on at least one other occasion, “the social worker tried to convince [M.S.] that her placement in the DeMarco home was fine.” The social worker did not intervene, “no law enforcement official ever came to speak to” M.S., and the assaults continued “the whole time” she was in the care of the DeMarcos from late 1986 through mid-1988. M.S. also told her mother that she was being sexually abused. The mother reported the abuse to the County employee who arranged her visits with M.S. and was told by that employee, “ ‘We’ll look into it.’ ” According to M.S., her mother and grandfather “orally reported” the abuse to the County approximately one month before she was removed from the DeMarco home in 1988. M.S. filed this lawsuit against the County in 2022. In 2025, the County filed a motion for summary judgment arguing, among other things, that M.S. could not identify a specific employee who has been negligent and that the County was entitled to discretionary act immunity. The trial court granted the motion, finding the County was immune from liability. The court relied exclusively on K.C. v. County of Merced (2025) 109 Cal.App.5th 606, review granted June 25, 2025, S290435 (K.C.), which it found “directly on point.” According to the trial court, the plaintiff in K.C. “alleged facts strikingly similar to those facts alleged in [this] case,” including 3 that the plaintiff “was sexually assaulted at two separate foster care placements in the 1970s and that [she] had given notice of the abuse to Merced County via its social workers, but Merced County thereafter undertook no investigative or corrective action.” The court concluded that, because the court in K.C. affirmed the trial court’s order sustaining a demurrer on the basis of discretionary act immunity, the County here was entitled to summary judgment on the same ground. DISCUSSION A. Standard of Review We independently review the trial court’s order granting the County’s motion for summary judgment. (Ryan v. Real Estate of Pacific, Inc. (2019) 32 Cal.App.5th 637, 642.) A defendant is only entitled to summary judgment if “there is no genuine dispute of material fact and . . . it is entitled to judgment as a matter of law.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) We “may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party.” (Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864.) B. The County Has Not Shown It Is Entitled to Immunity M.S. argues the trial court improperly granted summary judgment on the basis of discretionary act immunity. We agree. Public employees are liable for their own torts unless otherwise provided by statute. (§ 820, subd. (a).) The County, as a “public entity,” is vicariously “liable for injury proximately caused by an act or omission of an employee” acting “within the scope of [her] employment if the act or omission would . . . have given rise to a cause of action against that employee.” (§ 815.2, subds. (a)–(b).) 4  A public employee and, by extension, her public entity employer cannot be held liable for so-called “discretionary” acts or omissions. (See, e.g., Caldwell v. Montoya (1995) 10 Cal.4th 972, 979–980 (Caldwell).) Specifically, section 820.2 provides: “Except 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.” Because “almost all acts involve some choice among alternatives” (Caldwell, supra, 10 Cal.4th at p. 981), the term “discretionary” in this context is a term of art. This variety of “[i]mmunity is reserved for those ‘basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government,’ and as to which judicial interference would thus be ‘unseemly.’ ” (Ibid.) Discretionary act immunity does not extend to “lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.” (Ibid.) The Supreme Court has framed the distinction as one between “policy and operational judgments.” (Ibid.) The weight of modern authority holds that “decisions of child welfare agency employees—regarding determinations of child abuse, the potential risk to a child, placement of a child, removal of a child, and other resultant actions—are subjective discretionary ones.” (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 191–192 (B.H.); see, e.g., D.G. v. Orange County Social Services Agency (2025) 108 Cal.App.5th 465, 473 (D.G.) [quoting B.H.]; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 466 [“[A] social worker's decisions relating to . . . the investigation of child abuse, removal of a minor, and instigation of dependency proceedings, are discretionary decisions subject to immunity under section 820.2.”]; Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 5 1450, 1466 [“whether to intervene and discontinue a child’s placement [in a foster home], is a discretionary placement decision”].) But even if the kind of act or omission at issue is a discretionary one,2 discretionary act immunity only applies if the act or omission at issue was in fact an exercise of discretion. The employee specific “immunity applies only to deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages . . . took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.’ ” (Caldwell, supra, 10 Cal.4th at p. 981.) There is no evidence in this record from which we could conclude that any employee rendered a considered decision regarding M.S.’s reports of abuse. That is fatal to the County’s claim of immunity. (See D.G, supra, 108 Cal.App.5th at p. 474 [reversing grant of summary judgment where there was “simply no evidence in the record that” the assigned social worker or other employee in fact “exercised discretion” in maintaining child’s foster placement].) Where a defendant moves for summary judgment on the ground there is an affirmative defense to liability, it is the defendant’s burden to establish the defense. (See Code Civ. Proc., § 437c, subd. (p)(2) [“A defendant . . . has met [its] burden of showing that a cause of action has no merit if the party has shown . . . that there is a complete defense to the cause of action.”].) 2 In light of our conclusion below, we decline to address M.S.’s contention that decisions regarding removal from foster care are different from decisions about removing a child from her parent’s care. Rather, we assume that the social worker’s acts or omissions here are the kind generally entitled to discretionary act immunity. 6 Thus, “ ‘[t]he burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff’s cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff’s cause of action, . . . “the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense” [citations]. The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied.’ ” (Ehrenkranz v. San Francisco Zen Center (2026) 118 Cal.App.5th 977, 989– 990.) Given the absence of evidence about what the social worker did following M.S.’s reports of abuse, the County has not met its summary judgment burden.3 For purposes of this motion, we must draw all reasonable inferences in favor of M.S. We thus cannot infer that the social worker’s apparent inaction was the result of a considered judgment. The County suggests we do not need any evidence regarding the social worker’s actions because “a social worker’s decisions in responding to a report of child abuse and determining whether to remove a child from a foster home” are categorically subject to discretionary immunity. This argument is contrary to the Supreme Court’s holdings in Caldwell and Johnson v. State of 3 The County, citing Code of Civil Procedure section 437c, subdivision (p)(2), appears to concede it has the burden of establishing this defense. We accept this concession, as the analysis in Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 808–815, strongly suggests that discretionary act immunity under section 820.2 is an affirmative defense that must be pled and proved by the defendant. 7 California (1968) 69 Cal.2d 782 (Johnson), which require inquiry into whether an employee “consciously exercised discretion in the sense of assuming certain risks in order to gain other policy objectives.” (Johnson, at p. 794, fn. 8.) To the extent any court of appeal decision cited by the County could be read to support a contrary conclusion, we are bound to follow the Supreme Court. We specifically do not find the analysis in K.C. persuasive insofar as it suggests that if a social worker fails to respond to reports of sexual abuse, a court can presume the failure resulted from an exercise of discretion even in the absence of allegations regarding what the social worker actually did. (See K.C., supra, 109 Cal.App.5th at p. 619.) This impermissibly collapses the two-step analysis provided by the Supreme Court and, here, would contravene the summary judgment standard and invert the parties’ burdens. Finally, the County suggests it should be immune because M.S. was ultimately removed from the DeMarco home in 1988, roughly one month after her mother and grandfather reported the abuse to a social worker. Assuming this specific action somehow reflects a considered judgment by an employee, M.S. reported the abuse the first time her social worker visited and she was not removed from the placement for many months.4 There is no evidence 4 The County notes that M.S. cannot remember when she reported the abuse. M.S. claims the abuse began in her first month after she was placed with the DeMarcos in late 1986. She says she reported the abuse the “first time the social worker visited” her in the DeMarco home, and agreed this visit was “after the incidents [of abuse] first started to happen.” She was not removed from the placement until 1988. Viewing the evidence in the light most favorable to M.S., we think it reasonable to infer she was not removed from her placement for many months after her first report to the social worker. 8 that would suggest that leaving M.S. in the foster home during this time resulted from an exercise of discretion. Accordingly, the County is not entitled to summary judgment. C. Other Genuine Disputes of Material Fact Preclude Summary Judgment The County argues that even if it is not entitled to discretionary act immunity, it is still entitled to summary judgment. We “ ‘will affirm a summary judgment if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court’s stated reasons.’ ” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 144.) However, the County has not shown it is entitled to summary judgment on any alternative ground. First, the County claims M.S. cannot name the particular social worker to whom she reported the abuse, and the County cannot be held vicariously liable for the actions of an unnamed employee. The County relies exclusively on Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, for this proposition. But in that case, the court found there could be no vicarious liability where “summary judgment was properly granted as to the [individual] defendants in this case,” and “to the extent [her] claims [we]re vicarious to the officer defendants’ actions in this case,” their employer could not be vicariously liable. (Id. at p. 944.) Otherwise, the plaintiff’s “appellate briefing [did] not specifically argue that any individual” behaved tortiously, instead seeking to aggregate the actions of multiple individuals. (Id. at pp. 945–947.) Here, M.S. identifies a particular social worker to whom she reported abuse, she just cannot identify them by name. For purposes of this motion, we must infer that the abuse was reported at least twice to the same social worker who was a County employee. We see no reason M.S.’s inability to 9 provide the name of her social worker would defeat her claim on summary judgment. (See, e.g., Sen. Com. on Judiciary, Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) 2 Sen. J. (1963 Reg. Sess.) pp. 1887–1888 [“Under [section 815.2], it will not be necessary in every case to identify the particular employee upon whose act the liability of the public entity is to be predicated. All that will be necessary will be to show that some employee of the public entity tortiously inflicted the injury in the scope of his employment under circumstances where he would be personally liable.”].) Next, the County argues M.S. “cannot establish that any County employee had actual knowledge of [her foster brother’s] propensity to commit sexual abuse prior to her report to the social worker.” This does not dispose of the County’s potential liability for failing to remove M.S. from the DeMarcos’ home or otherwise take action to protect M.S. after her reports. Finally, the County argues there is no evidence the social worker breached a duty of care owed to M.S. because “she cannot recall when she” reported the abuse, “she has no personal knowledge of whether the social worker to whom she reported thereafter spoke with her foster or biological family about the alleged sexual abuse,” and “she was removed from the DeMarco home approximately one month after her biological mother and grandfather made subsequent reports of abuse.” But, viewing the record in the light most favorable to the nonmoving party, M.S. reported the abuse to the same social worker on at least two occasions, and the abuse continued for months before she was removed. The record supports the inference that the social worker failed to take any action based on M.S.’s reports, leading M.S. 10 to suffer additional foreseeable harm. A reasonable factfinder could thus conclude that the social worker breached the duty of care.5 DISPOSITION The judgment is reversed. M.S. is entitled to recover her costs on appeal. MCCONNELL, P. J. WE CONCUR: DO, J. CASTILLO, J. 5 We do not address M.S.’s alternative theory of direct liability predicated on the County’s alleged violation of mandatory duties as it is unnecessary to our resolution of this appeal. 11