Key Points

  • The First District, Division Four, reversed a judgment on the pleadings that had granted Alameda County immunity under Government Code section 820.2.
  • The complaint alleged both potentially discretionary acts, such as deciding whether to investigate or remove a child, and potentially ministerial ones, such as failing to notice abuse, run background checks on employees, and use reasonable protective measures.
  • The court held that a failure to investigate an abuse report does not necessarily imply a considered decision not to investigate, and that the county bears the burden of proving such a decision.
  • The court held that the alleged punishment of the child after his report did not necessarily show a considered evaluation of the report.
  • The court declined to follow K.C. v. County of Merced (2025) 109 Cal.App.5th 606, on which the California Supreme Court granted review on June 25, 2025 (S290435).

A California appeals court on Monday revived a negligence suit by a man who says he was sexually abused at 12 and 13 in a group home where Alameda County had placed him while he was in its foster care custody, holding that the county could not defeat the suit at the pleading stage by arguing that its workers' failure to investigate his report was a protected exercise of discretion.

A three-judge panel of the First Appellate District, Division Four, reversed a judgment for the County of Alameda. Goldman wrote for the court, joined by Brown and by Gordon, a judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice. The panel held that the complaint alleged a mix of discretionary and potentially routine failures, and that nothing in it showed county employees had made "an actual, conscious decision" not to investigate the report or remove the boy from the home.

The ruling leaves the county to prove, on a factual record rather than from the complaint alone, that its employees actually weighed whether to act. The panel also declined to follow K.C. v. County of Merced, a 2025 appellate decision that reached a different conclusion on similar allegations and that is now under review by the California Supreme Court.

The plaintiff, identified as K.S., was in the county's foster care custody when the county placed him in a group home in 2006. His complaint alleges that an adult male staff member sexually abused him from about 2006 to 2007, that he reported the abuse to a facility supervisor acting as the county's agent, and that "no action was taken, no investigation was completed." Instead, he alleges, "Defendants penalized him by revoking his privileges, drugging and/or increasing Plaintiff's medications, and putting Plaintiff in the quiet room," where the abuse continued.

K.S. sued in 2022 under Code of Civil Procedure section 340.1, which revived certain time-barred childhood sexual assault claims and exempted them from the claim presentment requirement of the Government Claims Act. His single negligence count seeks to hold the county vicariously liable for its employees and agents. The group home is also a defendant but was not part of the appeal.

After answering the complaint, the county moved for judgment on the pleadings. The county's only argument was immunity under Government Code section 820.2, which provides that 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." Under state law, a public entity is immune when its employee is.

The trial court, Alameda County Superior Court, with Sarah Sandford-Smith as trial judge, granted the motion, reading the complaint to show that the social worker involved "exercised their discretion to not investigate and take corrective action."

Goldman traced the immunity to California common law, codified in section 820.2. The California Supreme Court first addressed its scope in its 1968 decision in Johnson v. State of California, which protects basic policy decisions but not "ministerial" decisions that implement a policy already set. Under Johnson, the immunity applies only where a "[conscious] balancing [of] risks and advantages . . . took place."

The panel accepted that decisions to open an investigation or to remove a child after an abuse report "might be entitled to immunity." But other conduct alleged in the complaint, "such as the failure to notice and identify sexual assault, to execute proper background checks on employees, and to use reasonable measures to protect minor from foreseeable sexual assault and abuse, might reasonably be considered ministerial," the court held. It relied on a 1970 decision, Elton v. County of Orange, which reversed a ruling that had granted a county immunity on demurrer in a foster-home abuse case.

The panel also rejected the county's argument that a failure to investigate necessarily reflects a considered decision not to investigate. "Deciding not to act in response to a report of abuse requires consideration of the report and a conscious choice to forgo investigation," Goldman wrote. "This is not equivalent to receiving a report of abuse and simply setting it aside without any deliberation."

"While the failure to investigate may imply a decision not to investigate, it does not always warrant such an assumption," the opinion continued. The court distinguished the Supreme Court's 1995 decision in Caldwell v. Montoya, in which a school board voted to fire a superintendent, because K.S. "does not allege an improper investigation. K.S. alleges a lack of investigation."

The county had argued that the alleged punishment showed it "considered and evaluated the information" K.S. provided and found it inadequate or false. K.S. called that reading "a gross and extreme alternative interpretation of the facts," and the panel agreed. "Punishment does not necessarily demonstrate a considered decision relating to the adequacy or validity of the report," the court held.

In K.C., a different appellate panel upheld immunity for Merced County where a foster child alleged that she repeatedly reported abuse to her social worker and no corrective action followed. That court read the complaint as alleging that social workers "failed to properly exercise their discretion." The First District panel disagreed that K.S.'s complaint could be reduced to that claim. A reasonable reading of a complaint, the court wrote, "does not mean we supply unpled facts to meet the County's burden of proving that its employees made a conscious decision as a result of the exercise of discretion."

Because the county's motion raised only immunity, the panel assumed that the complaint adequately alleged a duty of care and that a negligent breach would result in liability.

K.S. was represented by Ryan J. Jones of Herman Law. The county was represented by Michael C. Wenzel of Bertrand, Fox, Elliot, Osman & Wenzel.

Any renewed immunity defense will turn on evidence of what county employees actually considered, an inquiry the panel said "cannot be made at this stage of the present proceeding."