Unreported / Non-Citable
Background
M.S. alleged that a San Diego County employee negligently failed to protect her from sexual abuse by her foster brother while she lived in the DeMarco foster home. She was placed there in 1986 after being removed from her biological mother's custody in 1985. According to her testimony, she described the abuse to a visiting social worker and reported it to that same worker on at least one other occasion. She said the worker tried to convince her that the placement was fine, did not intervene, and no law enforcement official came to speak with her. The abuse continued throughout her placement, from late 1986 through mid-1988. Her mother also reported the abuse to the County employee who arranged visits, and M.S. said her mother and grandfather orally reported it to the County about a month before her removal in 1988.
M.S. sued the County in 2022. In 2025, the County moved for summary judgment, arguing among other things that she could not identify a specific negligent employee and that discretionary act immunity barred liability. The superior court granted the motion solely on immunity grounds, relying exclusively on K.C. v. County of Merced, which it considered directly on point because that case also involved reported sexual abuse in foster placements and no subsequent investigative or corrective action. M.S. appealed. The Court of Appeal reviewed the summary judgment independently, without weighing evidence, and viewed the record in the light most favorable to her.
The Court’s Holding
The court assumed that the social worker's acts or omissions were the kind generally eligible for discretionary act immunity under Government Code section 820.2. It nevertheless held that immunity requires an actual exercise of discretion: a deliberate and considered decision involving a conscious balancing of risks and advantages. The record contained no evidence that any employee made such a decision regarding M.S.'s reports. Because the County sought summary judgment based on an affirmative defense, it had to establish undisputed facts supporting every element and show that no material factual issue required trial. The court would not infer a considered judgment from the worker's apparent inaction, particularly when all reasonable inferences had to favor M.S.
The court rejected the argument that immunity could be presumed categorically from the nature of child-welfare decisions. It explained that such a presumption would collapse the required two-step analysis, conflict with Supreme Court authority, and invert the summary judgment burdens. It also declined to affirm on the County's alternative grounds. M.S. identified a particular social worker through her account even though she could not supply the worker's name, and the legislative history of section 815.2 supports vicarious liability without identifying the particular employee by name in every case. The absence of evidence that an employee knew of the foster brother's propensity before M.S.'s report did not resolve liability for failing to act afterward. Finally, her repeated reports and the abuse's continuation for months supported an inference of inaction and additional foreseeable harm, allowing a reasonable factfinder to find a breach of duty. The judgment was reversed, and M.S. was awarded costs on appeal.
Key Takeaways
- Discretionary act immunity requires evidence of an actual considered decision, not merely proof that the employee's job generally involves discretionary judgments.
- A public entity asserting immunity as an affirmative defense on summary judgment must establish the defense without leaving a material factual issue for trial.
- A foster-care plaintiff's inability to remember the social worker's name does not by itself defeat vicarious liability when the evidence identifies a particular employee's acts or omissions.
- The court left unresolved M.S.'s argument that foster-care removal decisions differ from decisions to remove a child from a parent, as well as her alternative direct-liability theory based on mandatory duties.
Why It Matters
The decision separates the classification of child-welfare work as generally discretionary from the distinct factual question whether an employee actually exercised discretion in responding to a particular report. It places the evidentiary burden on the public entity seeking summary judgment and prevents apparent inaction from being treated automatically as a policy choice. The court expressly found unpersuasive any suggestion in K.C. that discretion could be presumed without allegations or evidence of what the social worker actually did.
The ruling also clarifies that unnamed does not mean unidentified for purposes of this summary judgment record. M.S.'s testimony concerned a particular assigned social worker and repeated reports to that worker. Together with the inferences of continued abuse and inaction, that evidence was enough to preclude judgment for the County on vicarious-liability, knowledge, and breach-of-duty grounds. The reversal resolves the appeal's immunity and alternative summary judgment arguments without deciding every theory M.S. presented.