De Villers v. County of San Diego

Opinion

Rossum (Rossum) took toxic materials from her employer, the County of San Diego (County), and used them to murder her husband, Greg de Villers (de Villers). The trial court ruled County could be liable in wrongful death damages for de Villers’s death. The jury awarded damages against County. We reverse.

FACTUAL BACKGROUND

A. The Relationship Between Rossum and de Villers

Rossum became addicted to methamphetamine during high school. She continued to use methamphetamine periodically during college. In December 1994, while in college, Rossum left school without telling her parents, and went to San Diego to hide a relapse into methamphetamine use. At that time, she met de Villers, they became lovers, and Rossum moved into de Villers’s apartment.

De Villers helped Rossum quit using methamphetamine, and in the fall of 1995 she reenrolled in college, majoring in chemistry. She avoided drug use and graduated with honors in May 2000. Rossum married de Villers in June 1999.

B. Rossum’s Employment at the Office of the Medical Examiner

In 1997, while still in college, Rossum was employed as a student worker at County’s office of the medical examiner (OME). At that time, she had not used drugs for approximately two years. In 1997, OME had no policy requiring applicants to pass a drug or alcohol test, and Rossum’s employment application did not inquire about prior drug or alcohol use or criminal history.

In March 2000, OME promoted Rossum from a student worker to a permanent position as a Toxicologist I. A toxicologist analyzes body fluids for the purpose of determining whether drugs are present. At the time OME promoted Rossum, OME was unaware of her earlier drug history or juvenile record.^[1] OME did not conduct a drug test or a background check on Rossum,

although County’s policy at that time required all OME applicants to pass a drug and alcohol test and the job description for toxicologist specified the applicant was required to undergo a law enforcement background investigation. Janet Enright, the administrative services manager for OME, thought Rossum should have been drug tested but was told by County’s human resources department that Rossum was not required to be tested because she already worked at OME. Although Rossum signed a waiver agreeing to be tested, OME never arranged for the tests. However, there was no evidence suggesting Rossum had relapsed into drug use at the time she applied for and received the promotion, and neither her physical appearance nor her job performance suggested she had resumed using methamphetamine. Instead, the evidence suggested she did not resume her drug use until late September 2000.

Enright also thought all employees were required to undergo a background check, and asked Mr. Ambom (OME’s operations administrator) whether Rossum should undergo a background check. Ambom told Enright it would be unnecessary. Although Ambom decided in June 2000 to have the sheriff’s department conduct background checks on all employees hired in 2000, and Enright secured a waiver from Rossum permitting a background check, Ambom elected not to conduct a background check on Rossum. However, after de Villers was murdered, Ambom conducted a background check on Rossum and it disclosed no offenses.

C. The Robertson/Rossum Affair

Michael Robertson (Robertson) began working at OME in the spring of 2000. Robertson was Rossum’s supervisor. By May 2000 coworkers suspected he and Rossum were involved in an affair and complained to Enright, who relayed the complaints to Ambom. However, when Ambom questioned some coworkers, they denied seeing the two hugging or kissing. Ambom also asked Robertson (on two occasions) whether he was involved with Rossum, and Robertson denied it. Ambom did not ask Rossum about the rumors or examine the e-mails between Rossum and Robertson.

By October 2000, Rossum had relapsed into methamphetamine use.^[2] Robertson became aware of her renewed usage but, contrary to County’s policy requiring supervisors to report any workplace drag use, did not report Rossum’s renewed usage of drags.

D. de Villers’s Death

On Thursday November 2, 2000, de Villers confronted Rossum. He told her he suspected she was using drugs and having an affair with Robertson, and demanded she quit her job at OME. He threatened to reveal her drug use and her affair with Robertson to OME if she refused to quit her job. However, when Rossum and de Villers visited with her parents the following night, the parents did not notice anything to suggest Rossum had relapsed into drug use.

On Monday, November 6, at 9:22 p.m., Rossum called 911 and told the operator de Villers had not been feeling well and that he had suddenly stopped breathing. Paramedics arrived minutes later and found de Villers’s body on the floor next to his bed. Fresh-looking red rose petals were strewn around his body. The paramedics transported de Villers to the hospital, where he was pronounced dead at 10:19 p.m. {People v. Rossum (June 13, 2005, D041343) [nonpub. opn.].)

E. The Investigation

San Diego County Medical Examiner, Dr. Brian Blackboume, performed an autopsy on de Villers’s body the day after his death. He concluded de Villers had been dead for at “least an hour or so” by the time paramedics arrived, and that de Villers had been “stuporous or semi-conscious or comatose” for a minimum of six to 12 hours prior to his death. Blackboume also found needle marks on de Villers’s body. {People v. Rossum, supra, D041343.) However, neither the autopsy nor the initial toxicology tests^[3] showed the cause of his death.

Based on subsequent toxicology results of de Villers’s body fluids, Blackboume determined de Villers had died of acute fentanyl intoxication. The toxicology results also showed de Villers had oxycodone and clonazepam in his system at the time of his death.

Shortly thereafter, an audit was conducted at OME for the purpose of determining whether any fentanyl was missing from its supply. Fifteen fentanyl patches impounded in three different cases and the contents of a vial

of the fentanyl standard^[4] were missing from OME. Rossum had been involved in all three cases in question and had logged in the fentanyl standard. Robertson also had authorized access to all drugs stored at OME. Robertson and Rossum, who both knew OME did not routinely test for fentanyl, had traveled together in October 2000 to attend a conference of forensic toxicologists at which they received a copy of a journal that included a paper discussing 25 deaths caused by fentanyl.

In December 2000 and January 2001, OME toxicologist Lowe conducted two further evidentiary audits to determine whether any methamphetamine or other drugs were missing from OME. The audits found impounded methamphetamine was missing from various envelopes, and various drug standards (including those for methamphetamine and cocaine) were missing. These three audits were the first audits of impounded drugs conducted in Lowe’s 32 years at OME. In July 2001, OME directed another toxicologist to conduct an audit of all of OME’s evidence drugs. This audit found that some clonazepam and oxycodone were missing. In addition to the fentanyl, low levels of these latter two drugs were found in de Villers’s system.

At the trial in the case, plaintiffs introduced the testimony of several experts. One expert testified OME’s hiring and supervision practices were inadequate because drugs are constantly present in the work environment. A second expert testified there were several deficiencies in the controls used by OME to prevent drug thefts by its employees. A third expert testified to the effects of methamphetamine on its users and testified that Rossum’s constant access to the drug coupled with the stress of hiding her affair with Robertson nearly guaranteed she would relapse into substance abuse.

E The Criminal Proceedings

Rossum was charged with the first degree murder of de Villers and, as a special circumstance, the information alleged she committed the murder by administering poison. The jury convicted her of the crime and found the special circumstance true. (People v. Rossum, supra, D041343.) She is currently serving a prison sentence of life without possibility of parole.

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PROCEDURAL BACKGROUND

Plaintiffs filed this wrongful death action against Rossum and County seeking damages for de Villers’s death.^[5] Plaintiffs’ claim against County alleged two theories of liability: (1) County was liable for de Villers’s death because it had negligently hired and supervised Rossum and this negligence was a proximate cause of de Villers’s death; and (2) County breached its mandatory duty to guard against the theft of drugs from OME and the breach of that duty was a proximate cause of de Villers’s death. After County’s pretrial challenges to plaintiffs’ theories were rejected, the matter was tried to a jury, which found in favor of plaintiffs on both theories. County’s motion for judgment notwithstanding the verdict was denied, and judgment was entered in favor of plaintiffs. This timely appeal by County followed.

HI

ISSUES ON APPEAL

A. Overview

When a party is injured by a tortfeasor and seeks to affix liability on the tortfeasor’s employer, the injured party ordinarily must demonstrate either (1) the employer violated a duty of care it owed to the injured party and this negligence was a proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasor-employee was liable for committing the tortious conduct that caused the injury while acting within the course and scope of his or her employment (the vicarious liability theory). (See generally 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, §§ 167-168, pp. 211-213.) When the employer is a governmental agency, the statutory framework permits the injured party to pursue the vicarious liability theory in accordance with these general common law principles. (Gov. Code, § 815.2.)^[6] However, the statutory framework requires, as a condition to the injured party’s recovery on a direct liability theory against a governmental agency, that the injured party identify a “specific statute declaring [the entity] to be liable, or at least creating some specific duty of care” by the agency in favor of the injured party. (Eastbum v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 , 1183 [ 7 Cal.Rptr.3d 552 , 80 P.3d 656 ] CEastbum); accord,

Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792 , 802 [ 223 Cal.Rptr. 206 ].)

B. Issues on Appeal

In this case, plaintiffs asserted County was liable under both vicarious and direct liability theories. Although conceding County could not be held vicariously liable for Rossum’s direct conduct because she was not acting within the course and scope of her employment when she killed de Villers, plaintiffs nevertheless appear to assert County may be held either directly or vicariously liable for de Villers’s death because the negligence of County’s managers in hiring and supervising Rossum were proximate causes of the murder.^[7] Plaintiffs alternatively contend that, even if a direct liability claim is limited to cases in which a legislative enactment has created a specific duty of care by the agency in favor of the injured party, the provisions of 21 Code of Federal Regulations part 1301.71(a) (2007) imposed a mandatory duty on County to take effective steps to safeguard against the theft and abuse of drugs in its possession, and County’s violation of that mandatory duty supports the judgment for plaintiffs.

THE NEGLIGENT HIRING/SUPERVISION CLAIM

Plaintiffs first argue County may be held liable, either vicariously or directly, for negligently hiring and supervising Rossum.

A. The Vicarious Liability Theory

Plaintiffs assert various County employees, acting within the course and scope of their employment, negligently (1) failed to discover Rossum’s prior drug history or juvenile criminal record when it hired her or terminate her when another County department learned of her prior history, (2) failed to prevent or uncover the theft of drugs from OME by its staff, (3) failed to discover her affair with Robertson, and (4) permitted Rossum to learn of the lethality of fentanyl. Plaintiffs contend these acts and omissions were substantial factors leading to de Villers’s murder, and therefore County is vicariously liable for de Villers’s murder.

When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury. (§ 815.2, subd. (a); Eastbum, supra, 31 Cal.4th at p. 1180.) We are convinced Rossum’s coworkers would not have been liable for de Villers’s death because they had no duty to prevent Rossum from murdering de Villers, and therefore plaintiffs’ claim of vicarious liability against County is not viable.

As a general rule, citizens do not have a duty to prevent criminal attacks by third parties. (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141 , 150 [ 42 Cal.Rptr.3d 519 ].) Although an exception might exist when the citizen bears some special protective relationship to the victim and has actual knowledge of the assaultive propensities of the criminal actor, a citizen “cannot be liable under a negligent supervision theory . . . based solely on constructive knowledge or information they should have known.” (Id. at p. 153, fn. omitted.)

Here, there was no evidence supporting a conclusion any County employee had undertaken a special protective relationship toward de Villers.^[8] Moreover, the evidence appears undisputed that no one—including de Villers or other family members—had actual knowledge that Rossum posed a threat to de Villers. Plaintiffs contend it is unnecessary to prove County employees were actually aware of Rossum’s malignant heart, arguing all that “is required to be foreseeable is the general character of the event or harm ...[,] not its precise nature or manner of occurrence.” (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49 , 57-58 [ 192 Cal.Rptr. 857 , 665 P.2d 947 ].) From this predicate, plaintiffs assert it was foreseeable County’s failure to secure its drug supply could lead to death or injury.

However, Bigbee did not involve a criminal act, and our Supreme Court’s more recent and pertinent analysis is contained in Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138 [ 12 Cal.Rptr.3d 615 , 88 P.3d 517 ]. In Wiener, the victims were seriously injured (and two children were killed) when a man purposefully rammed his car through a chain link fence into the defendant’s schoolyard. The driver was convicted of first degree murder. The complaint alleged the fence was inadequate to protect children playing near a busy roadway. There had been no prior criminal intrusions, although a mail truck had accidentally gone through the fence some years earlier and there had been other traffic accidents near the property. (Id. at pp. 1143-1144.) The Court of Appeal reversed a grant of summary judgment

in favor of the defendants on the theory that a motorist crashing through the fence was sufficiently foreseeable to require the defendants to build a stronger fence, which could have prevented the injuries. (Id. at p. 1145.) The Supreme Court reversed, recognizing that although a landlord has a duty to protect children from foreseeable perils, the focus needed to be on the foreseeability of the particular criminal act itself, not the general nature of the harm that resulted. (Id. at p. 1148.) Wiener went on to explain that “[Cjases analyze third party criminal acts differently from ordinary negligence, and require us to apply a heightened sense of foreseeability before we can hold a defendant liable for the criminal acts of third parties. [Citation.] There are two reasons for this: first, it is difficult if not impossible in today’s society to predict when a criminal might strike. Also, if a criminal decides on a particular goal or victim, it is extremely difficult to remove his every means for achieving that goal.” (Id. at pp. 1149-1150.) Wiener concluded that, because the driver’s criminal conduct was impossible to anticipate and because the defendants had never been the target of violence in the past, the “defendants owed no duty to [the victims] because Abrams’s brutal criminal act was unforeseeable.” (Id. at p. 1150.)

Plaintiffs cite no relevant California authority suggesting that persons who do not occupy a special protective relationship to the victim (or the class to which the victim belonged), and who lack actual knowledge of the perpetrator’s propensity to engage in criminal conduct, nevertheless owe a duty to anticipate and protect against the criminal conduct of a perpetrator.^[9] The law is to the contrary. (Margaret W. v. Kelley R., supra, 139 Cal.App.4th at p. 156; cf. Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333 , 1341 [ 78 Cal.Rptr.2d 525 ].) Under plaintiffs’ theory, a coworker who suspects a fellow employee (or even a person who suspects a friend) might be involved in an extramarital affair and have a substance abuse problem would be potentially liable for failing to anticipate and prevent criminal assaults by the perpetrator. Under established authority, we conclude Rossum’s coworkers did not owe that duty to de Villers and, therefore, County cannot be held vicariously liable for the coworkers’ failure to prevent the murder because the coworkers would not be personally liable.

but that Eastbum barred liability for the 45 percent portion of fault attributed to the city based on its alleged negligence in hiring, training and supervising its officers. (Munoz, at pp. 1110-1115.) Here, as in Munoz, there is no statutory basis for declaring a governmental entity liable for negligence in its hiring and supervision practices and, accordingly, plaintiffs’ claim against County based on that theory is barred by Eastbum and Zelig.

Plaintiffs do not on appeal identify any statutory basis supporting a direct claim against a governmental entity for injuries allegedly caused by the entity’s generic negligence in hiring and supervising its employees. Instead, they rely on a series of cases that purportedly authorized a direct claim against the entity for negligence. However, we are unconvinced those cases support a direct claim for negligent hiring and supervision.

The two Supreme Court cases relied on by plaintiffs—John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 [ 256 Cal.Rptr. 766 , 769 P.2d 948 ] (John R. ) and Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 [ 86 Cal.Rptr. 465 , 468 P.2d 825 ]—do not support their position. In Grudt, the court addressed the narrow issue of whether a timely filed complaint alleging respondeat superior liability against the public entity for a shooting death by an officer could be amended, even though the statute of limitations had run, to add a claim asserting the entity was itself negligent in retaining officers it knew to be dangerous. The court concluded this new claim was not time-barred because it sought recovery on the same set of facts. (Grudt, at pp. 583-585.) However, a determination that a claim is not time-barred falls short of a holding the claim is otherwise viable.

Plaintiffs’ reliance on John R. is even less convincing. In John R., the court’s holding was limited to two narrow issues: (1) was the claim timely filed, and (2) may a school district be held vicariously liable for a sexual assault by a teacher during an after-school program. Although the lead opinion in John R. contained dicta at various points suggesting that its holding—declining to permit vicarious liability—would not bar a claim for direct liability for the school’s negligence in supervising the activity (see John R., supra, 48 Cal.3d at pp. 441, 451, fn. 10), the language is both dicta and is contained in an opinion that did not command a majority of the court.^[10] We conclude dicta contained in an opinion that did not gamer a majority of the court is an insufficient basis to ignore the requirement, as

outlined in the subsequent majority holdings in Zelig and Eastbum, that a statutory basis for a direct claim against a governmental entity must be identified.

Plaintiffs also cite a series of appellate court cases^[11] to support their contention that a direct claim for negligence may be maintained against a governmental entity for injuries allegedly caused by the entity’s negligent hiring and supervising of its employees. These cases do not persuade us that the analysis required by Eastbum and Zelig is preempted by a claim for direct liability under a negligent hiring/supervision theory. For example, in both Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848 [ 19 Cal.Rptr.2d 671 ] and Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899 [ 126 Cal.Rptr.2d 213 ], the courts evaluated the entity’s liability for molestation of students by their teacher.^[12] The Virginia G. court, after correctly recognizing that public entity liability must arise from a statutory basis (Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at p. 1853), nevertheless peremptorily concluded the entity could be directly liable for negligent supervision (without identifying the statutory basis for such liability) by relying without analysis on the John R. dicta. (Virginia G., at p. 1855.) We conclude Virginia G.’s reliance on the John R. dicta was erroneous and should not be perpetuated.

In Doe 1, the court again made no effort to identify a statutory basis for the direct claim against the public entity. Instead, Doe 1 concluded the entity could be liable for negligent supervision by finding a duty of care under two theories. First, it employed a traditional duty analysis, relying in part on Ma v. City and County of San Francisco (2002) 95 Cal.App.4th 488 [ 115 Cal.Rptr.2d 544 ] and application of the Rowland^[13] factors (Doe 1 v. City of Murrieta,

supra, 102 Cal.App.4th at pp. 913-916 & fns. 41, 44), from which it concluded the entity owed a duty of care to the victim. Second, relying on Virginia G., it concluded the entity had a “special relationship” with the victim from which a direct duty of care would be imposed. (Doe 1, supra, 102 Cal.App.4th at pp. 917-918.) The latter rationale, we have already concluded, is a derelict on the waters of the law that we decline to follow. Moreover, Doe Fs first rationale appears to have been eviscerated by Eastburn’s discussion of Ma and Rowland. Eastburn noted that, after the Ma court concluded no statutory duty had been identified, Ma “nonetheless held that a public agency and its dispatchers owe the public a mandatory duty of care arising from the common law duty to act with reasonable care that is embodied in Civil Code section 1714. We disagree.” (Eastburn, supra, 31 Cal.4th at p. 1182, italics added.) Eastburn then discussed why it disapproved of Ma, explaining: “[T]he Ma court . . . [w]ithout acknowledging the provisions of Government Code section 815, requiring a statutory basis for direct public entity liability, . . . ‘employed] a traditional common law duty analysis,’ [to hold] that the city owed its citizens the general duty of ordinary care embodied in Civil Code section 1714. (Ma, supra, 95 Cal.App.4th at p. 502.) Using traditional tort analysis (i.e., balancing the factors enumerated in [Rowland], including the foreseeability and certainty of harm, the close connection with and moral blame of the defendant’s conduct, the policy of preventing future harm, etc.), the Ma court concluded that ‘all the individual Rowland factors favor duty overwhelmingly. ’ (Ma, supra, 95 Cal.App.4th at p. 511.) HO ... HO We think that Ma erred in concluding that Civil Code section 1714, and the common law principles it codified, were alone sufficient bases for imposing direct tort liability on a public entity. As previously noted, ‘[a] public entity is not liable for an injury,’ ‘[e]xcept as otherwise provided by statute.’ (Gov. Code, § 815.) In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn, at pp. 1182-1183.)

As we interpret Eastburn, the fundamental basis underlying the first rationale relied on by Doe 1 has been eviscerated by Eastburn’s discussion of Ma and Rowland. We conclude Doe 1 was impliedly disapproved in Eastburn and should not be followed.

The remaining cases relied on by plaintiffs are equally inapplicable.^[14] We conclude that a direct claim against a governmental entity asserting

negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.

V

THE MANDATORY DUTY CLAIM

Plaintiffs contend that, even if their claim against County requires a legislative enactment creating a specific duty of care by the agency in favor of the injured party, the provisions of 21 Code of Federal Regulations part 1301.71 (2007) imposed a mandatory duty on County to take effective steps to safeguard against the theft and abuse of drugs in its possession, and County’s violation of that mandatory duty supports the judgment here.

A. Legal Framework

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.”

Section 815.6 has three discrete requirements, two of which are dispositive here.^[15] First, “the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490 , 498 [ 93 Cal.Rptr.2d 327 , 993 P.2d 983 ].)

The second “but equally important [requirement is] that the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘ “one of the consequences which the [enacting body] sought to prevent through imposing the alleged

mandatory duty.” ’ (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925 , 939 [ 80 Cal.Rptr.2d 811 , 968 P.2d 522 ], fn. omitted.) Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment ‘confers some benefit’ on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment’s protective purpose, the enactment cannot serve as a predicate for liability under section 815.6.” (Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 499.)

Whether the enactment creates a mandatory duty designed to protect against the particular injury is subject to de novo review because it involves a question of statutory interpretation for the courts. (Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 499.) We are convinced the federal regulations did not impose a mandatory duty actionable within the meaning of section 815.6 because they do not command specific acts designed to prevent an employee from using embezzled drugs to commit premeditated first degree murder.

B. The Evidence

OME is an analytical laboratory that performs chemical analysis for civil and law enforcement purposes, including analyzing drugs removed from death scenes and to determine cause of death. To acquire drug standards and store controlled substances, OME must qualify as a registrant licensed by the federal Drug Enforcement Administration (DEA). The DEA imposes regulatory requirements on licensees who hold controlled substances, although the nature of the regulations vary depending on the nature of the licensee’s activity. (See 21 C.F.R. § 1301.71 et seq. (2007).) Among the requirements imposed on all registrants is that a registrant “shall provide effective controls and procedures to guard against theft and diversion of controlled substances.”^[16] ( 21 C.F.R. § 1301.71 (a).)

At the time of de Villers’s murder, OME stored the drug standards in a locked room within the locked toxicology laboratory. Plaintiffs do not cite

any evidence this double set of locked doors failed substantially to comply with the physical security requirements applicable to OME.

At the time of de Villers’s murder, materials impounded by investigators were taken to OME.^[17] The materials were placed in envelopes, which were then deposited into a locked “evidence box” previously inspected and approved by DEA investigators. However, when the evidence box was full to overflowing, investigators would place the excess envelopes adjacent to the evidence box. Persons with authorized access to OME’s offices had access to the envelopes that were not inside the locked evidence box.

The envelopes were periodically collected, moved into the toxicology laboratory and placed in the “balance room.” A toxicologist would periodically sort through the collection to remove envelopes marked “destroy, no hold”; these would be placed into a cardboard box to be later taken to the sheriff’s office for destruction. The remainder of the envelopes were eventually sorted and placed into locked storage cabinets in the toxicology laboratory. After the envelopes had been moved from the evidence box area into the toxicology laboratory, only the toxicologists or others with keys to the laboratory had access to the materials in the balance room or the locked storage cabinets.

Plaintiffs’ expert, Mr. Mudri, testified certain aspects of OME’s security arrangements violated the mandatory obligations the Code of Federal Regulations imposed on OME. First, he testified only one or two persons should have keys that would allow access to the drug standards and the other locked areas where seized drugs were stored but, instead, the keys were accessible to all of the toxicologists after they were inside the toxicology laboratory. He stated the “key control systems and/or combination lock control systems” ( 21 C.F.R. § 1301.71 (b)(8) (2007)) were inadequate. Second, he noted there was no system for recording or monitoring when an OME employee had possession of a drug envelope or drug standard. He concluded the “supervision over employees having access to . . . storage areas” ( 21 C.F.R. § 1301.71 (b)(ll)) was also inadequate.^[18]

C. The Required Action Was Not a Mandatory Duty Within the Meaning of Section 815.6

The provisions of 21 Code of Federal Regulations part 1301.71(a) (2007) require a registrant to provide “effective” controls to “guard against” theft of controlled substances, but does not impose a mandatory obligation to guarantee no materials will ever be stolen. The regulation does not mandate that any particular method or procedure be adopted to guard against theft; to the contrary, it expressly recognizes that “[substantial compliance” with the physical and other security requirements imposed on registrants may be “deemed sufficient” to satisfy the registrant’s obligations. ( 21 C.F.R. § 1301.71 (b).) Indeed, plaintiffs’ expert conceded that neither of the measures he specified as complying with the regulations (e.g., limiting keys to two people and having a witnessed monitoring when any toxicologist accessed a drug standard or an evidence envelope) were mandated by the enactment, and he agreed the guidelines are “general guidelines” that afford discretion on how to design and implement safeguards against theft.^[19]

We conclude the Code of Federal Regulations does not impose the type of mandatory obligation contemplated by section 815.6. Although the regulations set goals to which the registrant must aspire, it grants latitude on how best to achieve those goals and does not describe discrete acts that must be performed. Under the analysis of Creason v. Department of Health Services (1998) 18 Cal.4th 623 [ 76 Cal.Rptr.2d 489 , 957 P.2d 1323 ] (Creason), the enactment here did not impose the type of mandatory duty actionable under section 815.6. In Creason, the legislation obliged the state department of health services to formulate testing standards for hypothyroidism that would be “ ‘ “accurate, provide maximum information, and . . . produce results that are subject to minimum misinterpretation.” ’ ” {Creason, at p. 629.) It was alleged the standards developed by the agency failed to satisfy those obligations, and the injuries suffered as a result of that failure were actionable under section 815.6. {Creason, at pp. 627-629.) The Supreme Court concluded that, although the enactment contained mandatory language describing the goals to be pursued, it “left the selection of necessary and appropriate testing and reporting standards to the sound discretion of the Director, guided by certain ‘principles’ that the Director should consider in drafting those standards.” {Id. at pp. 631-632.) Because the guiding principles were “general and broad

and . . . subject to considerable interpretation,” the court concluded the statutory scheme contemplated discretionary decisions by the agency on how best to achieve the stated goals, and the alleged negligent exercise of that discretion would not support a claim for breach of a mandatory duty. (Id. at pp. 634-635.) As subsequently confirmed by Haggis, the enactment “must require . . . that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.” (Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 498, 2d & 3d italics added.)

In determining whether a mandatory duty actionable under section 815.6 had been imposed, the Legislature’s use of mandatory language (while necessary) is not the dispositive criteria.^[20] Instead, the courts have focused on the particular action required by the statute, and have found the enactment created a mandatory duty under section 815.6 only where the statutorily commanded act did not lend itself to a normative or qualitative debate over whether it was adequately fulfilled. Thus, actionable mandatory duties have been found where a county failed to release an arrestee after dismissal of charges as required by Penal Code section 1384 (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710 [ 117 Cal.Rptr. 241 , 527 P.2d 865 ]), or where the agency failed to register a dismissal of charges as required by Penal Code section 1384 (Bradford v. State of California (1973) 36 Cal.App.3d 16 [ 111 Cal.Rptr. 852 ]), or where the entity failed to release the arrestee under the duty to release on bail prescribed by Penal Code section 1295 {Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375 [ 40 Cal.Rptr. 863 ]).^[21] In each of these cases, the required action was clear and discrete and required no evaluation of whether it had in fact occurred.

In contrast, when the statutorily prescribed act involves debatable issues over whether the steps taken by the entity adequately fulfilled its obligation,