Brenneman v. State

statute means “a constitutional provision, statute, charter provision, ordinance or regulation.” (Gov. Code, § 810.6.) The applicable definition of “regulation” is “a rule, regulation, order or standard, having the force of law, adopted by an employee or agency of the United States or of a public entity pursuant to authority vested by constitution, statute, charter or ordinance in such employee or agency to implement, interpret, or make specific the law enforced or administered by the employee or agency.” (Former Gov. Code, § 811.6 [current § 811.6 applies only to actions based on acts or omissions occurring on or after Jan. 1, 1988].) The definitions of “enactment” and “regulation” were intended to refer to “measures of a formal legislative or quasi-legislative nature.” (Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code, § 810.6 (1980 ed.) p. 158.)

A plaintiff asserting liability under Government Code section 815.6 “must specifically allege the applicable statute or regulation.” (Lehto v. City of Oxnard, supra, 171 Cal.App.3d 285 , 292.) References in the second amended complaint to “mandatory ministerial duties . . . mandated by the Penal Code” clearly fail this test. Nor do we regard the general references to mandatory duties created by the Manual as sufficient. The only supposed enactment specifically alleged is the requirement of a “formal reassessment of the risks and needs of [the] parolee during the period between seventy-five (75) to one hundred five (105) days from the date of . . . release.” Nevertheless, given the suggestion in the record that the trial court may have taken judicial notice of other sections of the Manual (see Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690 , 697 [ 143 Cal.Rptr. 679 ])— and given our need to determine whether the court below properly sustained the state’s demurrer without leave to amend—we will examine other portions of the Manual included in the record for mandatory duties pertaining to the facts alleged.

The last decade has seen active disagreement among the courts, and between the courts and the Legislature, concerning whether internal policy manuals of public entities constitute “enactments” under Government Code 815.6 (or “regulations” under Evidence Code section 669, subdivision (a)). We need not venture into this thicket. Even if we assume provisions of the Manual constitute an enactment under Government Code section 815.6, we hold the Manual imposes no mandatory duties on the state, breach of which proximately caused Brennemans’ tragic loss.

Brennemans contend the Manual mandated formal reassessment of Thompson’s “risks and needs” between 75 and 105 days after his release.

This contention is accurate but insufficient. The reassessment process does not automatically trigger any specific requirement of administrative action, let alone action that would have prevented Thompson’s attack on Benjamin. The state’s decision as to how data gained in the reassessment should affect supervision of the parolee is clearly discretionary. Any connection between the delay in reassessing Thompson and Thompson’s conduct on August 25, 1981, is incurably speculative. The duty to conduct a reassessment is essentially a duty to investigate. A “mandatory statutory duty to ‘investigate’ . . . may not reasonably be read as imposing a mandatory duty ... to take action . . . .” (State of California v. Superior Court (1984) 150 Cal.App.3d 848 , 858 [ 197 Cal.Rptr. 914 ], italics in original.) Moreover, breach of a duty to investigate is not a proximate cause of injuries flowing from the failure to prevent certain conduct by the object of investigation. (Id. at pp. 856-859.)

The remainder of the supervisory scheme set forth in the Manual (or at least, in those sections of the Manual included in the record) provides no hook on which Brennemans could hang a claim under Government Code section 815.6. Section 511, subdivision (f) of the Manual states that a parolee’s agent of record “will” be responsible for the delivery of all “services and controls” contained in the parolee’s action plan. The action plan is developed individually for each parolee, based on data gained in assessments and reassessments of the parolee’s progress (see Manual § 512, subd. (c)). A supervision agenda prepared for a particular parolee, and constantly adjusted in light of developments, is not an “enactment” under Government Code sections 810.6 and 815.6. As for the “controls emphasis” category of supervision, in which Brennemans now contend the state had placed Thompson: it authorizes programs “including], but . . . not limited to, closer observation, investigation, substance abuse detection, and intervention.” (Manual § 513, subd. (a), italics added.) Such language clearly grants the Department of Corrections considerable discretion in deciding how to supervise and when to control a parolee. It imposes no mandatory duty to choose one course over another.

II. No General Tort Duty to Control or Warn.

Under Government Code sections 815.2 and 820, the state may be held liable for the acts and omissions of Thompson’s parole officers, unless immunized by statute, wherever a private individual or entity would be liable under similar circumstances. We therefore consider whether Brennemans have alleged, or could allege, that state had a duty, under general tort law, to supervise or otherwise control Thompson, or to warn Benjamin or Brennemans of the danger Thompson posed. We must answer in the negative.

The issues of duty to control and duty to warn are generally treated as parallel. (See, e.g., Thompson v. County of Alameda (1980) 27 Cal.3d 741 , 751 [ 167 Cal.Rptr. 70 , 614 P.2d 728 , 12 A.L.R.4th 701 ]; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435 , 443 [ 165 Cal.Rptr. 741 ].) Thompson, supra, cogently explains why we may not find a duty to control or warn in this case. Thompson upheld an order sustaining a demurrer without leave to amend on the following facts. J., a juvenile, had been in county custody. He had “ ‘latent, extremely dangerous and violent propensities regarding young children . . . (Id. at p. 746.) While in custody, he threatened that, if released, he would kill some young child living in the neighborhood. No particular child was specified. The county released J. to his mother’s custody on temporary leave, without warning the police or local residents. Within 24 hours J. murdered the plaintiff’s son in J.’s mother’s garage.

Our Supreme Court held the county had no duty to warn the police or the mothers of neighborhood children concerning J.’s release or propensities. Noting the general rule that one owes no duty to control the conduct of another, the court found no applicable exceptions to that rule. The court went on to explain the public policies underlying its decision: “By their very nature parole . . . decisions are inherently imprecise.. . . [A] large number of parole violations occur. . . . Although . . . not all violations involve new or violent offenses, a significant proportion do. [fl] Notwithstanding the danger illustrated by the foregoing statistics, parole and probation release nonetheless comprise an integral and continuing part in our correctional system . . . , serving the public by rehabilitating substantial numbers of offenders and returning them to a productive position in society. The result, as we observed in Johnson, is that ‘each member of the general public who chances to come into contact with a parolee bear[s] the risk that the rehabilitative effort will fail. . . .’ (69 Cal.2d at p. 799.) . . . []f] Bearing in mind the ever present danger of parole violations, we nonetheless conclude that public entities and employees have no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm directed at nonspecific victims. Obviously aware of the risk of failure of probation and parole programs the Legislature has nonetheless as a matter of public policy elected to continue those programs even though such risks must be borne by the public. [Citation.]” (Thompson v. County of Alameda, supra, 27 Cal.3d at pp. 753-754.)

Beauchene v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 342 , 347-348 [ 151 Cal.Rptr. 796 ], cited with approval in Thompson (27 Cal.3d at p. 754), relied upon the same public policy considerations to hold that a rehabilitation agency, whether public or private, has no duty to control a convict participating in its rehabilitation program. Cardenas v. Eggleston

Youth Center (1987) 193 Cal.App.3d 331 , 334-335 [ 238 Cal.Rptr. 251 ] reached the same conclusion.

Brennemans cite Johnson v. State of California (1968) 69 Cal.2d 782 [ 73 Cal.Rptr. 240 , 447 P.2d 352 ] and Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [ 131 Cal.Rptr. 14 , 551 P.2d 334 , 83 A.L.R.3d 1166 ] as support for their contention the state’s special relationship to Thompson imposed on the state a duty to control Thompson’s conduct. This argument was rejected in Thompson, which distinguished these cases and confined the special relationship exception to situations involving a direct or continuing relationship between the state and the plaintiff (or plaintiff’s decedent), or “a prior threat to a specific identifiable victim.” (Thompson v. County of Alameda, supra, 27 Cal.3d 741 , 753, 758; see also State of California v. Superior Court (1974) 37 Cal.App.3d 1023 , 1027 [ 112 Cal.Rptr. 706 ].) As noted above, the juvenile perpetrator’s threat, in Thompson, to kill a young child residing in the neighborhood did not suffice to render the victim “specific” and “identifiable.” Brennemans’ allegations that Benjamin was a paperboy residing in and serving Thompson’s neighborhood are not substantially distinguishable from the allegations Thompson held insufficient.

III. Supervision of Parolee Falls Within Government Code Section 845.8, Subdivision (a) Immunity.

Even if Brennemans were able to allege the state had duty to supervise Thompson and that violation of that duty proximately caused their injuries, their cause of action would be precluded by the immunity provided in Government Code section 845.8, subdivision (a). That section states “Neither a public entity nor a public employee is liable for . . . [a]ny injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.”

The statute “is a specific application of the discretionary immunity recognized in California cases and in [Government Code] Section 820.2.” (Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code, § 845.8 (1980 ed.) p. 416.) In applying the statute, however, the courts have recognized that “[mjinisterial implementation of correctional programs . . . can hardly, in any consideration of the imposition of tort liability, be isolated from discretionary judgments made in adopting such programs.” (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479 , 485 [ 105 Cal.Rptr. 374 , 503 P.2d 1382 ]; State of California v. Superior Court, supra, 37 Cal.App.3d 1023 , 1027.) Several cases have accordingly held, without detailed inquiry into the level of discretion involved, that Government Code section 845.8, subdivi

sion (a) bars any state liability for negligent supervision of a released prisoner. (Duffy v. City of Oceanside (1986) 179 Cal.App.3d 666 , 672-673 [ 224 Cal.Rptr. 879 ] [failure to properly supervise parolee]; Martinez v. State of California (1978) 85 Cal.App.3d 430 , 435-436 [ 149 Cal.Rptr. 519 ], affd. 444 U.S. 277 [ 62 L.Ed.2d 481 , 100 S.Ct. 553 ] [failure to supervise parolee]; Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698 , 714-717 [ 141 Cal.Rptr. 189 ] [failure to investigate alleged probation violations and report actual violations to court].) A fortiori, the Manual’s extensive grant of supervision discretion places this case squarely under Government Code section 845.8, subdivision (a).

Brennemans have not shown a reasonable possibility they could further amend their complaint to state a cause of action. It was thus proper to sustain the state’s demurrer without leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311 , 318 [ 216 Cal.Rptr. 118 , 703 P.2d 58 ].)

The judgment is affirmed.

Crosby, J., and Wallin, J., concurred.

The petition of appellant Kay Brenneman for review by the Supreme Court was denied May 23, 1989.