State Dept. of State Hospitals v. Super. Ct. , 61 Cal. 4th 339 ( 2015 )


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  • Filed 6/1/15
    IN THE SUPREME COURT OF CALIFORNIA
    STATE DEPARTMENT OF STATE            )
    HOSPITALS et al.,                    )
    )
    Petitioners,            )
    )                            S215132
    v.                      )
    )                      Ct.App. 2/3 B248603
    THE SUPERIOR COURT OF LOS            )
    ANGELES COUNTY,                      )                      Los Angeles County
    )                    Super. Ct. No. BC487936
    Respondent;             )
    )
    ELAINA NOVOA, Individually and as    )
    Personal Representative, etc.,       )
    )
    Real Party in Interest. )
    ____________________________________)
    In 2007, Gilton Pitre was paroled from state prison. Before his release, the
    State Department of Mental Health (DMH) assessed whether he should be civilly
    committed under the Sexually Violent Predators Act (SVPA). (Welf. & Inst.
    Code, § 6600 et seq.) Ultimately, the Director of Mental Health did not request a
    petition for commitment and Pitre left prison. Four days later, he raped and
    murdered plaintiff Elaina Novoa‘s 15-year-old sister, Alyssa Gomez.
    Plaintiff sued DMH and two of its acting directors, claiming the death was
    caused by defendants‘ failure to discharge mandatory duties imposed by the
    SVPA. The superior court overruled a demurrer. Defendants petitioned for a writ
    of mandate. The Court of Appeal issued an order to show cause, and concluded
    that while the SVPA imposed a mandatory duty on defendants, the alleged breach
    was not the proximate cause of Gomez‘s death. We affirm.
    I. BACKGROUND
    A. The SVPA
    The SVPA authorizes the involuntary civil commitment of a person who
    has completed a prison term but is found to be a sexually violent predator (SVP).
    (Reilly v. Superior Court (2013) 
    57 Cal. 4th 641
    , 646 (Reilly); People v. McKee
    (2010) 
    47 Cal. 4th 1172
    , 1185 (McKee).) The SVPA‘s purposes are ― ‗to protect
    the public from dangerous felony offenders with mental disorders and to provide
    mental health treatment for their disorders.‘ ‖ (McKee, at p. 1203.) The Welfare
    and Institutions Code sets forth the relevant procedures. (Welf. & Inst. Code,
    § 6600 et seq.)1
    Section 6600, subdivision (a)(1) defines an SVP as ―a person who has been
    convicted of a sexually violent offense against one or more victims and who has a
    diagnosed mental disorder that makes the person a danger to the health and safety
    of others in that it is likely that he or she will engage in sexually violent criminal
    behavior.‖ 2 ―Whenever the Director of Corrections determines that an individual
    who is in custody . . . may be [an SVP], the director shall . . . refer the person for
    evaluation . . . .‖ (Former § 6601, subd. (a)(1).)3 The statutory scheme establishes
    a multiple-level review for inmates who may be SVPs. An inmate who is referred
    1      Unspecified statutory references are to the Welfare and Institutions Code.
    2      ―Sexually violent offense‖ is defined in section 6600, subdivision (b).
    3      Citations to former SVPA sections are to the law as it existed in 2007, as
    amended by Proposition 83, approved by the voters on November 7, 2006. (73D
    West‘s Ann. Welf. & Inst. Code (2007) p. 107 et seq,; see 
    McKee, supra
    , 47
    Cal.4th at p. 1186.) Although the SVPA has subsequently been further amended,
    none of the changes are material for purposes of our analysis.
    2
    by the Director of Corrections is then ―screened by the Department of Corrections
    . . . based on whether the person has committed a sexually violent predatory
    offense and on a review of the person‘s social, criminal, and institutional history.
    This screening shall be conducted in accordance with a structured screening
    instrument developed and updated by [DMH] in consultation with the Department
    of Corrections. If as a result of this screening it is determined that the person is
    likely to be [an SVP], the Department of Corrections shall refer the person to
    [DMH] for a full evaluation of whether the person [is an SVP].‖4 (Former § 6601,
    subd. (b).)
    If an inmate is referred for full evaluation, ―[DMH] shall evaluate the
    person in accordance with a standardized assessment protocol, developed and
    updated by [DMH], to determine whether the person is [an SVP] . . . .‖ (§ 6601,
    subd. (c).) The scope of the evaluation is codified in some detail. ―The
    standardized assessment protocol shall require assessment of diagnosable mental
    disorders, as well as various factors known to be associated with the risk of
    reoffense among sex offenders. Risk factors to be considered shall include
    criminal and psychosexual history, type, degree, and duration of sexual deviance,
    and severity of mental disorder.‖ (Ibid.) Moreover, ―the person shall be evaluated
    by two practicing psychiatrists or psychologists, or one practicing psychiatrist and
    one practicing psychologist, designated by the Director of Mental Health. If both
    evaluators concur that the person has a diagnosed mental disorder so that he or she
    is likely to engage in acts of sexual violence without appropriate treatment and
    4       DMH is now petitioner and defendant State Department of State Hospitals,
    and DOC is now the Department of Corrections and Rehabilitation. Here we use
    the state entities‘ former names as set out in the applicable 2007 version of the
    SVPA.
    3
    custody, the Director of Mental Health shall forward a request for a petition for
    commitment‖ to the designated counsel of the county in which the inmate was
    convicted.5 (Former § 6601, subd. (d).)
    If the evaluators disagree about whether the person meets the criteria, ―the
    Director of Mental Health shall arrange for further examination of the person by
    two independent professionals . . . .‖ (§ 6601, subd. (e).) ―[A] petition to request
    commitment . . . shall only be filed if both independent professionals . . . concur
    that the person meets the criteria for commitment . . . .‖ (§ 6601, subd. (f).) When
    that requirement is met, ―the Director of Mental Health shall forward a request for
    a petition to be filed for commitment‖ to the designated counsel of the county.
    (Former § 6601, subd. (h).) If counsel concurs with the recommendation, ―a
    petition for commitment shall be filed in . . . superior court . . . .‖ (§ 6601, subd.
    (i).) The court thereafter ―shall review the petition and shall determine whether
    there is probable cause to believe that the individual . . . is likely to engage in
    sexually violent predatory criminal behavior upon his or her release.‖ (§ 6602,
    subd. (a).) The court must order a trial if there is probable cause, and it must
    dismiss the petition if there is not. (Ibid.)
    The inmate is ―entitled to a trial by jury, to the assistance of counsel, to the
    right to retain experts or professional persons to perform an examination on his or
    her behalf, and to have access to all relevant medical and psychological records
    and reports.‖ (§ 6603, subd. (a).) There can be no civil commitment under the
    SVPA unless the trier of fact determines beyond a reasonable doubt that the
    person is an SVP. (§ 6604.) A person found to be an SVP ―shall be committed for
    5       Each county‘s board of supervisors is required to designate either the
    district attorney or the county counsel to pursue SVPA civil commitment actions.
    (§ 6601, subd. (i).)
    4
    an indeterminate term to the custody of [DMH] for appropriate treatment and
    confinement in a secure facility . . . .‖ (Ibid.) Annual examinations are conducted
    to assess whether the person is still likely to engage in sexually violent criminal
    behavior if discharged. (§ 6605, subd. (a).)
    B. Factual and Procedural History
    On demurrer review, we accept the truth of material facts properly pleaded,
    but not contentions, deductions, or conclusions of fact or law. We may also
    consider matters subject to judicial notice. (Evans v. City of Berkeley (2006) 
    38 Cal. 4th 1
    , 6.) In 1996, Pitre raped his female roommate. He was convicted and
    sentenced to a determinate term in state prison. In 2007, he was scheduled for
    parole. DOC determined that Pitre was likely to be an SVP, and referred him to
    DMH for evaluation. DMH, however, did not conduct a full evaluation by two
    psychologists or psychiatrists, or one of each, as required by statute. Instead, a
    single evaluator reviewed records received from DOC, and on that limited basis
    determined that Pitre was suitable for release. The complaint describes this
    limited evaluation by a single evaluator as a ―Level II‖ screening under DMH
    regulations in effect at the time. After reviewing a person‘s records, a ―Level II‖
    evaluator could either close a case or refer it for a full ―Level III‖ assessment by
    two evaluators. Because the Director of Mental Health did not forward a request
    for a petition for commitment, Pitre was paroled. Four days later, he raped and
    murdered Gomez.6
    6      On our own motion, we take judicial notice of the fact that Pitre was
    convicted in 2010 for the rape and murder of Gomez. (Evid. Code, § 452.) He
    received consecutive terms of 75 years to life and 25 years to life, consecutive to
    10 years for two prior conviction enhancements.
    5
    Plaintiff sued, asserting claims for breach of mandatory duty (Gov. Code,
    § 815.6), negligence, and negligence per se. She also sought a writ of mandate
    requiring defendants to comply with SVPA evaluation procedures (Code Civ.
    Proc., § 1085). She claimed that if defendants had conducted the full evaluation
    required by statute, ―any two competent, ethical evaluators would have determined
    [Pitre] met the criteria for civil commitment,‖ based on ―the circumstances of his
    1996 offense, as detailed in the records,‖ which ―clearly and unequivocally
    demonstrate the sadistic nature of his crime.‖ She alleged that the single evaluator
    who reviewed Pitre‘s case stated that if he had had access to all the records and
    considered the sadistic nature of Pitre‘s 1996 crime, he would have concluded that
    Pitre was an SVP. Plaintiff further alleged that most sexual predators who
    reoffend exhibit ―tell-tale signs,‖ and that a full evaluation would likely have
    detected such signs in Pitre.
    Had there been two positive findings on Pitre‘s SVP status, DMH was
    obligated to submit a request for a civil commitment to designated counsel.
    Plaintiff claimed that a petition has been filed in every case referred by DMH
    following two positive evaluations. Had a petition been filed, Pitre‘s case would
    have gone to trial, the complaint alleged, and ―he would have been civilly
    committed.‖
    Defendants demurred, arguing that plaintiff failed to state a cause of action
    and that they were immune from liability.7 The superior court overruled the
    demurrer. On writ review, the Court of Appeal concluded that defendants were
    not immune from suit. It held that the SVPA imposes a mandatory duty to use two
    7       Defendants invoked Government Code section 845.8, subdivision (a),
    which provides that a public entity or employee is not liable for ―[a]ny injury
    resulting from determining whether to parole or release a prisoner . . . .‖
    6
    evaluators. However, the court also ruled that plaintiff could not, as a matter of
    law, establish the breach of that duty as the proximate cause of Gomez‘s death.
    The court further held that plaintiff failed to show she could amend her complaint
    to cure the defect as to proximate cause. Accordingly, it directed the superior
    court to sustain defendants‘ demurrer to the first and second causes of action. The
    writ proceeding in the trial court requiring defendants to discharge their mandatory
    duties under the SVPA was allowed to go forward.
    II. DISCUSSION
    A. Sovereign Immunity and Duty
    Traditionally, the doctrine of sovereign immunity shielded states from both
    suit and liability. (Franchise Tax Bd. v. Superior Court (2011) 
    51 Cal. 4th 1006
    ,
    1012; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 203, p. 344.)
    Under the doctrine, a state is immune except to the extent it consents to suit. (See
    Prosser & Keeton, Torts (5th ed. 1984) § 131, p. 1033.) In Muskopf v. Corning
    Hospital Dist. (1961) 
    55 Cal. 2d 211
    , 221, this court abolished the rule of
    government immunity from tort liability.
    The Legislature responded by temporarily reinstating former law, then
    replacing it in 1963 with the Government Claims Act (Gov. Code, § 810 et seq.),
    which sets out a comprehensive scheme of governmental liability and immunity
    statutes. (Thomas v. City of Richmond (1995) 
    9 Cal. 4th 1154
    , 1157; 5 Witkin,
    Summary of Cal. 
    Law, supra
    , Torts, § 216, p. 366.) Under the act, a public entity
    is not liable ―[e]xcept as otherwise provided by statute.‖ (Gov. Code, § 815; see
    Hoff v. Vacaville Unified School Dist. (1998) 
    19 Cal. 4th 925
    , 932.) One such
    statute is Government Code section 815.6, which 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
    7
    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.‖ (Gov. Code, § 815.6.) Thus, the government may be liable when (1) a
    mandatory duty is imposed by enactment, (2) the duty was designed to protect
    against the kind of injury allegedly suffered, and (3) breach of the duty
    proximately caused injury.
    Even when a duty exists, California has enacted specific immunity statutes
    that, if applicable, prevail over liability provisions. (Creason v. Department of
    Health Services (1998) 
    18 Cal. 4th 623
    , 635 (Creason); 5 Witkin, Summary of Cal.
    
    Law, supra
    , Torts, § 226, p. 375.) However, the first question is whether the
    plaintiff has alleged the breach of a mandatory duty. (Creason, at p. 630.) If there
    is no actionable duty, the question of immunity does not arise. (Ibid.; Caldwell v.
    Montoya (1995) 
    10 Cal. 4th 972
    , 985; 5 Witkin, Summary of Cal. 
    Law, supra
    ,
    Torts, § 225, p. 374.)
    Courts have delineated what is necessary to establish a mandatory duty.
    ―First and foremost, . . . the enactment at issue [must] 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.‖ (Haggis v. City of Los Angeles (2000) 
    22 Cal. 4th 490
    , 498 (Haggis).)
    ―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.‖ (Ibid., italics added.) Moreover, ―[c]ourts have . . . [found] a
    mandatory duty only if the enactment ‗affirmatively imposes the duty and
    provides implementing guidelines.‘ ‖ (Guzman v. County of Monterey (2009) 
    46 Cal. 4th 887
    , 898 (Guzman).) ― ‗ ―[T]he mandatory nature of the duty must be
    phrased in explicit and forceful language.‖ [Citation.] ―It is not enough that some
    statute contains mandatory language. In order to recover plaintiffs have to show
    8
    that there is some specific statutory mandate that was violated by the [public
    entity].‖ ‘ [Citations.]‖ (Id. at pp. 910-911.)
    Whether an enactment imposes ―a mandatory duty, rather than a mere
    obligation to perform a discretionary function, is a question of statutory
    interpretation for the courts.‖ 
    (Creason, supra
    , 18 Cal.4th at p. 631.) The
    enactment‘s ―language ‗is, of course, a most important guide in determining
    legislative intent, [but] there are unquestionably instances in which other factors
    will indicate that apparent obligatory language was not intended to foreclose a
    governmental entity‘s or officer‘s exercise of discretion.‘ ‖ 
    (Haggis, supra
    , 22
    Cal.4th at p. 499.) For example, the word ―shall‖ is ―mandatory‖ for purposes of
    the Welfare and Institutions Code. (§ 15; see Gov. Code, § 14 [same].)
    ―However, as we have emphasized, this term‘s inclusion in an enactment does not
    necessarily create a mandatory duty‖ within the meaning of Government Code
    section 815.6. 
    (Guzman, supra
    , 46 Cal.4th at p. 899.)
    We have recognized that while the ―exercise of discretion may often mark
    the dividing line between a duty that is mandatory and one that is not [citation],
    that line is sometimes difficult to draw.‖ 
    (Guzman, supra
    , 46 Cal.4th at p. 899.)
    ―[I]n cases not involving a public entity‘s ‗ ―quasi-legislative policy-making‖ ‘
    [citation], the inquiry should focus on whether the entity must ‗render a considered
    decision‘ [citation], one requiring its expertise and judgment [citations].‖ (Ibid.)
    Creason is illustrative. Sierra Creason and her parents sued the Department of
    Health Services (DHS) after neonatal testing failed to disclose that Sierra was born
    without a functioning thyroid gland. 
    (Creason, supra
    , 18 Cal.4th at pp. 626-627.)
    The complaint alleged that the test DHS designated was deficient, resulting in
    failure to diagnose Sierra‘s congenital hypothyroidism, which in turn led to a
    significant delay in treatment and irreversible injury. (Id. at p. 627.)
    9
    The applicable statutory scheme, the Hereditary Disorders Act (Health &
    Saf. Code, § 124975 et seq.), provided: ―[DHS] shall establish a genetic disease
    unit,‖ and ―[t]he unit shall promote a statewide program of . . . testing . . . and
    shall have the responsibility of designating tests and regulations to be used in
    executing this program. [¶] The . . . tests . . . shall be in accordance with accepted
    medical practices and shall be administered to each child born in California once
    the department has established appropriate regulations and testing methods.‖ (Id.,
    § 125000, subd. (a).) DHS thus had a mandatory duty to establish a neonatal
    testing program. However, the particular standards for testing and the protocol for
    reporting were left to its discretion and judgment.
    Had DHS taken no action at all, it would have failed to discharge its
    mandatory duty to designate the tests to be used. But DHS discharged that duty,
    and the plaintiffs did not allege otherwise. Instead, they argued that the way DHS
    exercised its judgment in designating tests and implementing procedures caused
    Sierra‘s injury. 
    (Creason, supra
    , 18 Cal.4th at pp. 627-628.) The Creason court
    concluded that a demurrer was properly granted. Although DHS‘s duty to
    designate tests was mandatory, its formulation of those tests and related reporting
    standards was discretionary and could not give rise to liability. (Id. at pp. 629,
    635.)
    Creason and similar cases illustrate the following distinction. A mandatory
    duty is created only when an enactment requires an act that is clearly defined and
    not left to the public entity‘s discretion or judgment. (County of Los Angeles v.
    Superior Court (2012) 
    209 Cal. App. 4th 543
    , 550-551 (Faten).) Such an act is
    mandated only to the extent of the enactment‘s precise formulation. When the
    enactment leaves implementation to an exercise of discretion, ―lend[ing] itself to a
    normative or qualitative debate over whether [the duty] was adequately fulfilled,‖
    10
    an alleged failure in implementation will not give rise to liability. (de Villers v.
    County of San Diego (2007) 
    156 Cal. App. 4th 238
    , 260.)
    Applying these principles here, we hold that the complaint sufficiently
    alleges a breach of DMH‘s mandatory duty to conduct an evaluation with two
    evaluators. The SVPA specifies that an inmate referred by DOC ―shall be
    evaluated by two practicing psychiatrists or psychologists, or one practicing
    psychiatrist and one practicing psychologist, designated by the Director of Mental
    Health.‖ (Former § 6601, subd. (d), italics added.) This language is clear,
    conferring no discretion as to the number of evaluators. 
    (Haggis, supra
    , 22
    Cal.4th at p. 502; 
    Faten, supra
    , 209 Cal.App.4th at p. 551.) Moreover, the use of
    two evaluators is critical to the SVPA process. A petition for commitment cannot
    be requested unless both evaluators agree that a person meets the criteria for SVP
    status. (§ 6601, subd. (d).) If they disagree, the Director of Mental Health must
    arrange for two independent evaluators to conduct a further examination. Both
    must concur that the inmate meets the criteria before a commitment petition can be
    requested. (§ 6601, subds. (e) & (f).) In sum, the enactment‘s language, taken
    together with the design of the SVPA process, makes it clear that the Legislature
    ― ‗intended to foreclose . . . [the] exercise of discretion‘ ‖ with regard to how many
    evaluators must be designated to assess persons referred by DOC. (Haggis, at
    p. 499.)
    Defendants concede they are obliged to ―designate two mental health
    professionals to conduct the ‗full evaluation.‘ ‖ Citing the discretion woven
    throughout the SVPA process, however, they argue that the obligation does not
    amount to a mandatory duty. Defendants note, for example, that the Director of
    Corrections first has discretion to determine whether someone might be an SVP,
    that DOC‘s subsequent screening is discretionary, and that the evaluators
    designated by DMH have discretion to determine whether a person meets the SVP
    11
    criteria. Defendants conclude from this that the entire SVPA screening process,
    including their duty to designate two evaluators, should be considered
    discretionary. The argument fails. Whatever discretion may be afforded by other
    provisions, the statute requiring the Director of Mental Health to designate two
    evaluators affords none.
    The only other mandatory duty identified in the complaint is an alleged
    obligation on the part of DMH to conduct in-person examinations of all referred
    inmates. The Court of Appeal properly rejected this claim. The SVPA states that
    after an inmate is referred for a full evaluation, DMH ―shall evaluate the person in
    accordance with a standardized assessment protocol‖ including specific risk
    factors. (§ 6601, subd. (c), italics added.) However, nowhere does the statute
    impose a specific requirement for in-person examination of referred inmates. As
    Guzman explained, a mandatory duty must be based on an enactment phrased in
    explicit and forceful language. 
    (Guzman, supra
    , 46 Cal.4th at pp. 910-911.)
    Noncodified details of the SVP evaluation protocol are left to DMH‘s judgment
    and discretion.8 (§ 6601, subd. (c).) Without any specific statutory command,
    DMH is not subject to a mandatory duty to conduct in-person evaluations of all
    referred inmates. (Guzman, at p. 910.)9
    8       Plaintiff contends that permitting DMH to merely review available records
    would duplicate the DOC screening mandated by section 6601, subdivision (b).
    Not so. Unlike the DOC screening, DMH‘s evaluation must be conducted by
    practicing psychologists and/or psychiatrists and must consider the factors
    identified in section 6601, subdivision (c).
    9      The complaint relies on an uncodified statute enacted in 2008, in which the
    Legislature stated, ―The [SVP] civil commitment program requires clinical
    evaluations of potential [SVPs] for possible commitment . . . .‖ (Stats. 2008,
    ch. 601, § 1, subd. (b), pp. 4293-4294, italics added.) Even assuming that a
    mandatory duty could arise from an uncodified legislative declaration, and even if
    the 2008 legislation were relevant to our construction of the 2007 version of the
    (footnote continued on next page)
    12
    As to the second element of Government Code section 815.6, there is no
    dispute that harm to the public caused by an SVP‘s release is the kind of risk the
    SVPA was designed to forestall.10 The particular mandatory duty at issue here
    requires the designation of two evaluators. This element of redundancy built into
    the review process serves the interest of the inmate as well as the governmental
    interest in protecting public safety. However, the potential dual benefit does not
    (footnote continued from previous page)
    SVPA, the reference to ―clinical evaluations‖ is ambiguous. It is not clear whether
    the phrase refers to in-person assessments, or merely evaluations by practicing
    clinicians.
    10      An uncodified statement accompanying the SVPA‘s enactment in 1996
    declared: ―The Legislature finds and declares that a small but extremely
    dangerous group of sexually violent predators that have diagnosable mental
    disorders can be identified while they are incarcerated. These persons are not safe
    to be at large and if released represent a danger to the health and safety of others in
    that they are likely to engage in acts of sexual violence. The Legislature further
    finds and declares that it is in the interest of society to identify these individuals
    prior to the expiration of their terms of imprisonment. It is the intent of the
    Legislature that once identified, these individuals, if found to be likely to commit
    acts of sexually violent criminal behavior beyond a reasonable doubt, be confined
    and treated until such time that it can be determined that they no longer present a
    threat to society.
    ―The Legislature further finds and declares that while these individuals
    have been duly punished for their criminal acts, they are, if adjudicated sexually
    violent predators, a continuing threat to society. The continuing danger posed by
    these individuals and the continuing basis for their judicial commitment is a
    currently diagnosed mental disorder which predisposes them to engage in sexually
    violent criminal behavior. It is the intent of the Legislature that these individuals
    be committed and treated for their disorders only as long as the disorders persist
    and not for any punitive purposes.‖ (Stats. 1995, ch. 763, § 1, p. 5921; see
    Hubbart v. Superior Court (1999) 
    19 Cal. 4th 1138
    , 1144, fn. 5.)
    The 2006 SVPA amendments reflect enhanced concern with protection of
    the public from sexually violent predators. (See 
    McKee, supra
    , 47 Cal.4th at
    p. 1186.)
    13
    defeat plaintiff‘s showing. We have recognized that public safety is a particularly
    powerful purpose of the SVPA evaluation process. (Moore v. Superior Court
    (2010) 
    50 Cal. 4th 802
    , 825; People v. Superior Court (Ghilotti) (2002) 
    27 Cal. 4th 888
    , 912.) It is clear that the requirement of two evaluators was designed, in part,
    to guard against the risk that an SVP might be released.
    B. Proximate Causation
    If the first two elements set out in Government Code section 815.6 are
    satisfied, ―the next question is whether the breach . . . was a proximate cause of the
    plaintiff‘s injury.‖ 
    (Guzman, supra
    , 46 Cal.4th at p. 898; see 
    Haggis, supra
    , 22
    Cal.4th at p. 499.)11 We have recognized that proximate cause has two aspects.
    ― ‗One is cause in fact. An act is a cause in fact if it is a necessary antecedent of
    an event.‘ ‖ (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 
    30 Cal. 4th 1037
    , 1045 (Ferguson).) This is sometimes referred to as ―but-for‖ causation.
    (E.g., Cabral v. Ralphs Grocery Co. (2011) 
    51 Cal. 4th 764
    , 784.)12
    The second aspect of proximate cause ―focuses on public policy
    considerations. Because the purported [factual] causes of an event may be traced
    back to the dawn of humanity, the law has imposed additional ‗limitations on
    liability other than simple causality.‘ [Citation.] ‗These additional limitations are
    related not only to the degree of connection between the conduct and the injury,
    11     Proximate cause is also a necessary element of plaintiff‘s negligence
    claims. (6 Witkin, Summary of Cal. 
    Law, supra
    , Torts, § 1181 et seq.; Evid.
    Code, § 669, subd. (a)(2) [negligence per se].)
    12     In cases where concurrent independent causes contribute to an injury, we
    apply the ―substantial factor‖ test of the Restatement Second of Torts, section 423,
    which subsumes traditional ―but for‖ causation. This case does not involve
    concurrent independent causes, so the ―but for‖ test governs questions of factual
    causation. (Viner v. Sweet (2003) 
    30 Cal. 4th 1232
    , 1239-1241.)
    14
    but also with public policy.‘ [Citation.] Thus, ‗proximate cause ―is ordinarily
    concerned, not with the fact of causation, but with the various considerations of
    policy that limit an actor‘s responsibility for the consequences of his conduct.‖ ‘
    [Citation.]‖ 
    (Ferguson, supra
    , 30 Cal.4th at p. 1045.) As Witkin puts it, ―[t]he
    doctrine of proximate cause limits liability; i.e., in certain situations where the
    defendant‘s conduct is an actual cause of the harm, the defendant will nevertheless
    be absolved because of the manner in which the injury occurred. . . . Rules of
    legal cause . . . operate to relieve the defendant whose conduct is a cause in fact of
    the injury, where it would be considered unjust to hold him or her legally
    responsible.‖ (6 Witkin, Summary of Cal. 
    Law, supra
    , Torts, § 1186, p. 553.)
    ―Ordinarily, proximate cause is a question of fact which cannot be decided
    as a matter of law from the allegations of a complaint. . . . Nevertheless, where the
    facts are such that the only reasonable conclusion is an absence of causation, the
    question is one of law, not of fact.‖ (Weissich v. County of Marin (1990) 
    224 Cal. App. 3d 1069
    , 1084; see 6 Witkin, Summary of Cal. 
    Law, supra
    , Torts, § 1184,
    pp. 551-552; Van Alstyne et al., Cal. Government Tort Liability Practice
    (Cont.Ed.Bar 2015) § 9.38, pp. 530-530.2.)
    The Court of Appeal below relied on a line of cases decided at the pleading
    stage. All held that proximate cause was not established when a governmental
    defendant‘s failure to act allegedly caused injury, but the chain of causation
    included discretionary determinations for which no liability could be imposed.
    First in this line is Whitcombe v. County of Yolo (1977) 
    73 Cal. App. 3d 698
    (Whitcombe). There, a probationer with severe mental disorders was arrested but
    released on bail. Thereafter, he assaulted and severely injured the plaintiffs. They
    sued the county, its probation department, and probation officers, claiming the
    defendants had breached a mandatory duty to investigate the incident leading to
    the arrest and report the probation violation to the court. (Id. at pp. 702-703.) A
    15
    demurrer was sustained for failure to state a cause of action. (Id. at p. 702.) The
    Court of Appeal affirmed, concluding the plaintiffs could not establish that the
    alleged breaches were the proximate cause of their injuries. (Id. at p. 707.)
    The Whitcombe court noted that the grant or revocation of probation was
    left to the discretion of the trial court, which was not bound by a probation
    officer‘s report or recommendation, or by any particular fact in the record.
    ―Rather, ‗[i]t must be guided by considerations pertaining to psychology,
    sociology and penology, or, in the words of the code, to ―the ends of justice‖; by
    general rules of policy which have not been and in the nature of the case should
    not be crystallized into positive or definite rules of law.‘ [Citation.]‖ 
    (Whitcombe, supra
    , 73 Cal.App.3d at p. 708.) ―In view of the latitude accorded the trial court,‖
    the claim that the failure to investigate and report the assailant‘s violations
    proximately caused the plaintiff‘s injuries was ―specious.‖ (Ibid.) Whether or not
    the trial court reviewed the probation reports, ―the proximate cause of [the
    plaintiffs‘] injuries would, at best, be the court‘s considered decision; manifestly
    an act immunized from liability under Government Code section 845.8,
    subdivision (a).‖13 (Ibid.)
    In State of California v. Superior Court (1984) 
    150 Cal. App. 3d 848
    (Perry), the plaintiffs alleged they were defrauded by a property manager licensed
    by the Department of Real Estate. They sued, claiming the Real Estate
    Commissioner breached his mandatory duty to investigate a prior fraud complaint
    against the manager. (Id. at p. 852.) The Court of Appeal agreed with the
    plaintiffs that the commissioner had a mandatory duty to investigate complaints,
    13    As noted above, Government Code section 845.8, subdivision (a),
    immunizes public employees from liability for ―[a]ny injury resulting from
    determining whether to parole or release a prisoner . . . .‖
    16
    and that their injury was the kind the statutory mandate was intended to protect
    against. (Id. at pp. 855-856.) However, relying on Whitcombe, the court held the
    plaintiffs could not establish that the alleged breach was the proximate cause of
    their loss. ―[E]ven had the commissioner used due care to investigate the . . .
    complaint, and had discovered . . . wrongdoing, there is no reasonable assurance
    that sanctions would have been imposed that would have prevented plaintiffs‘
    subsequent losses.‖ (Id. at p. 857.) ―The commissioner‘s mandatory statutory
    duty to ‗investigate‘ the . . . complaint may not reasonably be read as imposing a
    mandatory duty . . . to take action in the event the . . . investigation disclose[d]
    evidence of wrongdoing. Indeed, the Business and Professions Code specifically
    allows the commissioner discretion as to what action, if any, he deems appropriate
    to deal with transgressing licensees.‖ (Id. at p. 858.)
    ―Moreover, he cannot act unilaterally to suspend or revoke a license; rather,
    suspension or revocation can occur only following a formal adjudicatory process
    at which accusations have to be proved by the Department of Real Estate . . . .
    [Citation.] In addition, had the accusations been sustained, and had the
    commissioner exercised his discretionary power to impose discipline [citation],
    that discipline could have been in the form of a license suspension for as little as
    15 days [citation] — a penalty that would not have had any obvious effect on
    plaintiffs‘ losses. [¶] In short, several procedural steps lie between an initial
    investigation that discloses evidence of wrongdoing and any eventual imposition
    of effective sanctions against an offending real estate agent. The causal link is
    thus tenuous at best.‖ 
    (Perry, supra
    , 150 Cal.App.3d at pp. 858-859, fn. omitted.)
    The Perry court further noted that ―plaintiffs‘ proximate cause argument leads
    them inexorably into immunities that insulate the commissioner from liability,‖
    because the commissioner‘s discretionary enforcement alternatives were
    statutorily immunized. (Id. at p. 859, fn. 8.)
    17
    The third case in this line of authority is Fleming v. State of California
    (1995) 
    34 Cal. App. 4th 1378
    (Fleming). There, a parolee committed murder. The
    victim‘s family alleged that the killer‘s parole officer had breached a mandatory
    duty to arrest him for a parole violation. The trial court sustained a demurrer. (Id.
    at pp. 1381-1382.) The Court of Appeal affirmed. It reasoned in part that ―the
    failure to arrest [the parolee] was not in itself a cause of the injury, [because] arrest
    without a period of incarceration would not necessarily have prevented the crime.
    Incarceration, however, would have involved procedural steps involving the
    exercise of discretion and thus have broken the causal chain.‖ (Id. at p. 1384,
    citing Perry.)
    After reviewing these cases, the Court of Appeal below concluded that ―the
    distance between defendant‘s alleged breach of a mandatory duty and plaintiff‘s
    injuries is too [great] to support a Government Code section 815.6 action.‖ Even
    if DMH had conducted a full evaluation by appointing a second evaluator, the
    second evaluation would have had to disagree with the first and conclude that Pitre
    was an SVP; two independent evaluators would then have had to agree that he was
    an SVP; the designated counsel would have had to make a discretionary decision
    to file a civil commitment petition; and the trial court would have to have made a
    discretionary probable cause determination. Ultimately, the trier of fact would
    have had discretion to deny the petition. We agree with the court below that under
    the facts pleaded here, proximate cause is absent as a matter of law.
    The only mandatory duty established by the complaint‘s allegations is the
    duty to use two evaluators; the details of the manner in which each evaluator
    conducts the review are discretionary, so long as they include the statutory criteria.
    Thus, no actionable breach of duty can be found in the single evaluator‘s failure to
    conclude that Pitre was an SVP. Nor can plaintiff hypothesize a positive finding
    by that evaluator as a link in the chain of proximate causation. Instead, she must
    18
    posit a subsequent unbroken series of discretionary findings contradicting the first
    evaluator‘s conclusion and leading to civil commitment. And as in Perry, none of
    these intermediate findings could individually have determined the outcome.
    
    (Perry, supra
    , 150 Cal.App.3d at pp. 858-859.) Pitre‘s commitment could only
    have occurred after a multiple-stage review process culminating in a trial and a
    verdict reached beyond a reasonable doubt. Plaintiff‘s showing of ―but for‖
    causation is weak, because with each step in the review process the results become
    more speculative. As explained in Viner v. 
    Sweet, supra
    , 30 Cal.4th at page 1241,
    the purpose of the ―but for‖ requirement is to safeguard against speculative and
    conjectural claims.
    The policy considerations bearing on the question of proximate cause are
    also a considerable obstacle to plaintiff‘s claim. It can always be argued that
    governmental discretion could only have reasonably been exercised in one way.
    Yet such arguments turn on questions of degree, and indeed are in tension with the
    very idea of discretion. We do not hold that the intervention of any discretionary
    decision between breach of a mandatory duty and a subsequent injury will always
    foreclose a finding of proximate cause.14 Nor do we hold that proximate cause
    14     The degree of discretion conferred by the governing statutes may be a
    relevant factor. We note that the discretion possessed by the courts in 
    Whitcombe, supra
    , 
    73 Cal. App. 3d 698
    , and 
    Fleming, supra
    , 
    34 Cal. App. 4th 1378
    , as to
    whether to release a probationer was considerably broader than the discretion
    exercised by an SVP evaluator. The Real Estate Commissioner in Perry also
    exercised a greater degree of discretion over the handling of a fraud complaint
    than do the various actors under the SVPA evaluation scheme. The determination
    whether an inmate meets the SVP criteria is guided by statutory factors and
    constrained by statutory procedures. Nevertheless, the SVPA review scheme
    clearly contemplates the possibility that evaluators may disagree, and here the only
    DMH evaluator to review Pitre‘s case found that he was not an SVP. Thus, the
    discretion in question was not so constrained as to provide support for plaintiff‘s
    claim that any reasonable evaluator would have found Pitre to be an SVP.
    19
    can never be established if a mandatory duty imposed by the SVPA is breached.
    For instance, if DMH failed to evaluate an inmate at all, or neglected to forward a
    request for a civil commitment after two evaluators found an inmate to be an SVP,
    a cause of action would not necessarily be barred simply because subsequent
    discretionary decisions would have been required to prevent the inmate‘s release.
    However, the breach of duty in this case did not result in the absence of any
    evaluation, or the failure to act on evaluations as required by law. Plaintiff‘s
    claim, while premised on the breach of a mandatory duty, is in effect a complaint
    about how the evaluation of Pitre was performed. We note that if the review
    conducted by the single DMH evaluator had been performed by DOC at the
    previous stage of the review process, Pitre would have been released without any
    referral to DMH, and no cause of action would lie. Under these circumstances, as
    a policy matter, DMH‘s failure to appoint a second evaluator cannot properly be
    considered a proximate cause of Pitre‘s heinous crime. (See 6 Witkin, Summary
    of Cal. 
    Law, supra
    , Torts, § 1186, p. 553; 
    Ferguson, supra
    , 30 Cal.4th at p.
    1045.)15
    Accordingly, we conclude that plaintiff‘s showing fails under both aspects
    of the proximate cause determination. As a matter of cause in fact it is
    conjectural, depending on a long series of determinations that would have been
    required after DMH‘s breach in order for the injury to have been prevented. As a
    matter of policy it is problematic, because it trenches closely upon the
    discretionary functions of the evaluation process established by the SVPA.
    15     Because of our conclusion on the proximate cause issue, we do not reach
    the question whether the immunity conferred by Government Code section 845.8,
    subdivision (a) would extend to DMH‘s failure to employ two evaluators.
    20
    Plaintiff argues that Whitcombe, Perry, and Fleming are distinguishable
    because none of those cases involved breach of a mandatory duty. The assertion is
    unsupported. The Perry court acknowledged a mandatory duty. 
    (Perry, supra
    ,
    150 Cal.App.3d at p. 855.) The Whitcombe and Fleming courts necessarily
    presumed mandatory duties for purposes of their proximate cause analyses.
    
    (Whitcombe, supra
    , 73 Cal.App.3d at pp. 707-708; 
    Fleming, supra
    , 34
    Cal.App.4th at p. 1384.) In any event, we decide the proximate cause issue
    against plaintiff not because the Whitcombe line of cases is controlling, but
    because the facts pleaded in this complaint are legally insufficient to connect the
    breach of mandatory duty with the injury.16
    16      Plaintiff‘s reliance on cases such as Landeros v. Flood (1976) 
    17 Cal. 3d 399
    , Henderson v. Newport-Mesa Unified School Dist. (2013) 
    214 Cal. App. 4th 478
    , Alejo v. City of Alhambra (1999) 
    75 Cal. App. 4th 1180
    , and Braman v. State
    of California (1994) 
    28 Cal. App. 4th 344
    , is unavailing. Plaintiff cites no case, and
    we have found none, in which a showing of proximate cause was founded on a
    series of discretionary determinations comparable to the scenario set out in her
    complaint.
    21
    III. CONCLUSION
    We affirm the Court of Appeal‘s conclusions. The SVPA imposed a
    mandatory duty upon defendants to designate two evaluators to assess all persons
    referred by the DOC. However, plaintiff could not establish that the alleged
    breach of this duty was a proximate cause of Gomez‘s death. As the Court of
    Appeal concluded, plaintiff is free to pursue a writ of mandate requiring
    defendants to comply with their mandatory duties under the SVPA.
    CORRIGAN, J.
    WE CONCUR:
    CANTIL-SAKAUYE, C. J.
    CHIN, J.
    CUÉLLAR, J.
    22
    CONCURRING OPINION BY WERDEGAR, J.
    I concur in the court‘s decision affirming the Court of Appeal‘s judgment
    ordering the superior court to sustain defendants‘ demurrers to plaintiff‘s first and
    second causes of action. I do so, however, on narrower grounds than the majority.
    The majority holds plaintiff‘s allegations of proximate cause are both legally
    insufficient as to cause in fact and in contravention of public policies involving
    discretionary governmental decisions. (Maj. opn., ante, at pp. 18–22.) I agree
    with the first conclusion but not the second.
    I
    In a typical personal injury action, where the causal relationship between
    the breach of duty and the injury is relatively plain, ―it suffices to plead causation
    succinctly and generally.‖ (Bockrath v. Aldrich Chemical Co. (1999) 
    21 Cal. 4th 71
    , 78.) ―But when, by contrast, ‗ ―the pleaded facts of negligence and injury do
    not naturally give rise to an inference of causation[,] the plaintiff must plead
    specific facts affording an inference the one caused the others.‖ ‘ [Citation.] That
    is, the plaintiff must allege facts, albeit as succinctly as possible, explaining how
    the conduct caused or contributed to the injury.‖ (Ibid.)
    In the present case, the causal connection between the State Department of
    State Hospitals‘s failure to employ two mental health professionals to evaluate
    Gilton Pitre as a potential sexually violent predator (SVP), and Pitre‘s subsequent
    rape and murder of plaintiff‘s sister, is by no means plainly apparent. Both for this
    1
    reason and because plaintiff‘s cause of action under Government Code section
    815.6 is a statutory one requiring every material fact to be pleaded with
    particularity (Bockrath v. Aldrich Chemical 
    Co., supra
    , 21 Cal.4th at p. 78; Lopez
    v. Southern Cal. Rapid Transit Dist. (1985) 
    40 Cal. 3d 780
    , 795), plaintiff bore the
    burden of pleading with particularity each fact necessary to show how the
    agency‘s alleged breach caused her injury. The rule that a demurrer admits only
    properly pleaded material facts, not contentions, deductions or conclusions (Evans
    v. City of Berkeley (2006) 
    38 Cal. 4th 1
    , 6), should be applied here with plaintiff‘s
    burden of particularity in mind: to the extent the complaint included only
    conclusory or inferential claims of factual causation, rather than particularized
    allegations of fact, it was subject to demurrer.
    Viewing the complaint in this light, I agree with the majority its allegations
    of cause in fact were overly speculative and conjectural. (Maj. opn., ante, at pp.
    18-19.) Plaintiff alleges in a conclusory manner that had the agency employed
    two clinicians to perform a ―full evaluation,‖ rather than a single professional to
    do a ―paper screen[ing],‖ the two evaluators, on reviewing Pitre‘s criminal record
    and seeing the sadistic nature of his prior sex offense, would have determined he
    qualified as an SVP. But the complaint fails to include any specific facts as to
    what part of Pitre‘s criminal record the single evaluator failed to review or what
    facts of the prior crime were therefore not before him. For the crucial first step in
    her hypothetical causative chain, therefore, plaintiff provides only a conclusion,
    and a rather speculative one at that.
    To the extent plaintiff was unable to learn, before filing her complaint, what
    criminal records were and were not reviewed by the sole evaluator, but had reason
    to believe identifiable critical information was omitted from his screening that
    would have been before the required two evaluators pursuant to the agency‘s
    ―standardized assessment protocol‖ (Welf. & Inst. Code, § 6601, subd. (c)), she
    2
    could have alleged such particular critical omissions on information and belief.
    (See 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 398, pp. 537–538.) If
    plaintiff had no information and belief with regard to particular critical omissions
    from the screening materials, as indeed may have been the case, she lacked an
    adequate basis for claiming the agency‘s choice of a ―screen[ing]‖ by one
    professional, instead of an ―evaluation‖ by two, factually caused the agency‘s
    failure to refer Pitre to the designated county attorney for an SVP petition. (See
    Welf. & Inst. Code, § 6601, subd. (d).)
    The complaint‘s deficiencies regarding the hypothetical causative chain‘s
    first step, the lack of an evaluation by two mental health professionals, are
    compounded by its treatment of the final step, Pitre‘s hypothetical commitment as
    an SVP. The allegation that Pitre ―would have been civilly committed‖ is entirely
    conclusory, accompanied by no particularized facts to show that a unanimous jury
    would have determined, beyond a reasonable doubt, that Pitre was an SVP. (See
    Welf. & Inst. Code, §§ 6603, subd. (f), 6604.)
    The complaint may be read to claim that even the filing of a commitment
    petition would have prevented the injury because most such petitions allegedly go
    to trial and, had a petition been filed and Pitre held for trial past his scheduled
    release date, ―he would not have had the opportunity to murder Alyssa only four
    days later.‖ But this type of coincidental causation—an allegation that some
    breach created an opportunity for an injury to occur, without increasing the risk of
    that injury occurring—is insufficient. (See Rest.3d Torts, Liability for Physical
    and Emotional Harm, § 30 [―An actor is not liable for harm when the tortious
    aspect of the actor‘s conduct was of a type that does not generally increase the risk
    of that harm.‖]; Royal Indem. Co. v. Factory Mut. Ins. Co. (Iowa 2010) 
    786 N.W.2d 839
    , 852 [―[E]ven where an act may be a factual cause, ‗we are convinced
    that an act which merely places persons in the position where they sustain injury
    3
    from an unrelated event is not for that reason a legal cause of the injury.‘ ‖]; Berry
    v. Sugar Notch Borough (1899) 
    191 Pa. 345
    , 348–349 [
    43 A. 240
    ] [rejecting as
    ―sophistical‖ argument that streetcar motorman‘s speeding was the cause of his
    injuries when tree fell on his streetcar as it passed: although ―it was the particular
    speed at which he was running [the streetcar] which brought the car to the place of
    the accident at the moment when the tree blew down[,] . . . [t]he same thing might
    as readily have happened to a car running slowly, or it might have been that a high
    speed alone would have carried him beyond the tree to a place of safety.‖].)1 The
    risk of Pitre reoffending was no greater because he was released without a trial
    than had he been released after a trial ending without commitment—the exact
    timing of his release did not increase the public safety risk he posed. Plaintiff thus
    cannot establish legal cause merely by showing that absent the agency‘s breach of
    duty Pitre would not have been released in time to meet and attack the victim; she
    must show that absent the breach he would have been committed as an SVP. As
    just discussed, the complaint lacks particularized, nonconclusory factual
    allegations to that effect.
    A plaintiff could plead factual causation in this context by alleging, on
    information and belief or otherwise, that through a breach of its mandatory
    evaluation duty the State Department of State Hospitals overlooked specific
    available facts regarding the potential SVP, facts so strongly indicative of mental
    illness and repetitive sexual predation that any decision maker would likely find
    1       The Restatement Third categorizes this rule as one limiting ―scope of
    liability,‖ otherwise known as proximate cause, but acknowledges it can also be
    considered an instance of the lack of factual cause. (Rest.3d Torts, Liability for
    Physical and Emotional Harm, § 30, com. a, p. 542; see 
    id., ch. 6,
    Special Note on
    Proximate Cause, pp. 492–493.)
    4
    the person to be an SVP. The allegations of the present complaint do not rise to
    that necessary level.
    II
    I concur in the court‘s judgment on the grounds explained above. I do not,
    however, agree with the majority that a finding of liability in this case would
    contravene ―policy considerations bearing on the question of proximate cause‖
    (maj. opn., ante, at p. 19) because the hypothetical causative chain on which the
    agency‘s liability depends—that two evaluators would have found Pitre to be an
    SVP, resulting in a referral to the designated county attorney, who would have
    filed a petition for commitment on which Pitre would have been held beyond his
    hypothetical release date and ultimately committed—involves discretionary
    decisions.
    The majority cites no public policy stating the outcome of a discretionary
    decision may not form part of the chain of events a tort complaint hypothesizes as
    what would have happened but for the defendant‘s breach of duty. Actual
    discretionary acts by public employees are protected under a public policy of
    preventing discretionary governmental decisions from interference or distortion
    through fear of liability, a policy codified in the immunity provisions of
    Government Code section 820.2. But we are concerned here only with
    discretionary decisions that allegedly would have been made, not with actual
    decisions. As discussed later in this opinion, the protective policy has no logical
    application to merely hypothetical decisions.
    The majority observes vaguely that proving causation through the outcome
    of discretionary decisions that would have occurred but for the defendant‘s breach
    is ―in tension with the very idea of discretion.‖ (Maj. opn., ante, at p. 19.) To be
    sure, the existence of decisional discretion increases the plaintiff‘s burden on
    causation, a burden I agree plaintiff here has not met even at the pleading stage.
    5
    (See pt. I, ante.) But the majority cites no principle of law or public policy barring
    the attempt, and draws no germane factual distinction between this case and those
    in which such causative proof has been approved, such as Landeros v. Flood
    (1976) 
    17 Cal. 3d 399
    , Henderson v. Newport-Mesa Unified School Dist. (2013)
    
    214 Cal. App. 4th 478
    , and Alejo v. City of Alhambra (1999) 
    75 Cal. App. 4th 1180
    .
    To the extent the majority means to distinguish these cases on the ground that
    there the but-for chain involved only a single discretionary decision, while here a
    ―series‖ of such decisions is hypothesized (maj. opn., ante, at p. 21, fn. 16), the
    distinction appears merely quantitative and factual, not a matter of public policy.
    If public policy allows a discretionary decision to form a link in the causative
    chain, a plaintiff with a sufficiently strong factual case—again, a case absent
    here—could presumably show that each link in the hypothetical chain was met.
    There may be some discretionary governmental decisions so unrestricted by
    statutory or constitutional rules that one can say, as a matter of law, that their
    hypothetical outcomes could never be proven. Legislative budgeting decisions,
    certain sentencing choices and some conditional release determinations come to
    mind. But the majority makes no attempt to show the decisions involved in
    finding a person to be an SVP belong in this category. Indeed, the majority
    acknowledges these decisions are constrained by statutory factors and procedures.
    (Maj. opn., ante, at p. 19, fn. 14.) One might also note that the initial
    determination whether a person may be an SVP, and should be referred to the
    designated county attorney for a commitment petition, is made by mental health
    professionals using a protocol designed by and for such professionals. These are
    not the types of decisions whose outcomes can never be predicted.
    While the majority refrains from expressly relying on the fact that the
    discretionary governmental decisions necessary for an SVP commitment would
    have enjoyed immunity under Government Code section 820.2 (discretionary acts
    6
    of public employees) or section 845.8, subdivision (a) (parole release
    determinations), the majority opinion recites with apparent approval the reasoning
    of two Court of Appeal decisions that employed this rationale. (Maj. opn., ante, at
    pp. 15–17; see State of California v. Superior Court (1984) 
    150 Cal. App. 3d 848
    ,
    859, fn. 8; Whitcombe v. County of Yolo (1977) 
    73 Cal. App. 3d 698
    , 708.) Neither
    court discussed the point in depth, however, and neither explained how a statutory
    immunity, or the protective policy that motivates it, can logically apply to a
    decision that never occurred, so as to preclude liability for breach of a mandatory
    duty.
    How allowing causation to be traced through hypothetical decisions that did
    not occur would inhibit or distort real decisionmaking when it does occur is
    entirely unclear. To take an example from the present facts, as long as the
    designated county attorney knows that the decision not to seek a commitment
    against a potential SVP is immunized from liability, the attorney cannot be
    inhibited by the possibility that, in some other case that is never presented for
    prosecution because the State Department of State Hospitals does not make a
    referral, an injured plaintiff may allege the attorney would have sought a
    commitment had the decision been presented.
    Neither the majority opinion nor the lower court decisions on which it relies
    put forward a logical ground for concluding the proof of causation in
    circumstances like those presented here would violate an established public policy.
    7
    III
    For the reasons given above, I concur in the result and in part of the
    majority‘s reasoning, but not in the majority‘s conclusion that policy
    considerations negate proximate cause as a matter of law.
    WERDEGAR, J.
    WE CONCUR:
    LIU, J.
    KRUGER, J.
    8
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion State Department of State Hospitals v. Superior Court
    __________________________________________________________________________________
    Unpublished Opinion
    Original Appeal
    Original Proceeding
    Review Granted XXX 
    220 Cal. App. 4th 1503
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S215132
    Date Filed: June 1, 2015
    __________________________________________________________________________________
    Court: Superior
    County: Los Angeles
    Judge: John Segal
    __________________________________________________________________________________
    Counsel:
    Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant Attorney General, Kristin G.
    Hogue, Assistant Attorney General, Richard F. Wolfe, Joel A. Davis, Pamela J. Holmes and Paul F. Arentz,
    Deputy Attorneys General, for Petitioners.
    No appearance for Respondent.
    Shook, Hardy & Bacon, Chris Johnson, Patrick J. Gregory, M. Kevin Underhill, Rachael M. Smith, Ashley
    Cornwall and Jared L. Palmer for Real Party in Interest.
    1
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    Paul F. Arentz
    Deputy Attorney General
    300 South Spring Street, Suite 1702
    Los Angeles, CA 90013
    (213) 897-6125
    M. Kevin Underhill
    Shook, Hardy & Bacon
    One Montgomery, Suite 2700
    San Francisco, CA 94014
    (415) 544-1900
    2
    

Document Info

Docket Number: S215132

Citation Numbers: 61 Cal. 4th 339

Filed Date: 6/1/2015

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (16)

People v. McKee , 47 Cal. 4th 1172 ( 2010 )

Viner v. Sweet , 135 Cal. Rptr. 2d 629 ( 2003 )

Guzman v. County of Monterey , 46 Cal. 4th 887 ( 2009 )

People v. Superior Court (Ghilotti) , 119 Cal. Rptr. 2d 1 ( 2002 )

Ferguson v. Lieff, Cabraser, Heimann & Bernstein, LLP , 135 Cal. Rptr. 2d 46 ( 2003 )

Caldwell v. Montoya , 10 Cal. 4th 972 ( 1995 )

Muskopf v. Corning Hospital District , 55 Cal. 2d 211 ( 1961 )

Hoff v. Vacaville Unified School District , 80 Cal. Rptr. 2d 811 ( 1998 )

Lopez v. Southern California Rapid Transit District , 40 Cal. 3d 780 ( 1985 )

Creason v. Department of Health Services , 76 Cal. Rptr. 2d 489 ( 1998 )

Bockrath v. Aldrich Chemical Co., Inc. , 86 Cal. Rptr. 2d 846 ( 1999 )

Evans v. City of Berkeley , 40 Cal. Rptr. 3d 205 ( 2006 )

Cabral v. Ralphs Grocery Co. , 51 Cal. 4th 764 ( 2011 )

Thomas v. City of Richmond , 9 Cal. 4th 1154 ( 1995 )

Royal Indemnity Co. v. Factory Mutual Insurance Co. , 786 N.W.2d 839 ( 2010 )

Moore v. Superior Court , 50 Cal. 4th 802 ( 2010 )

View All Authorities »