Metropolitan News-Enterprise


Monday, December 29, 2008


Page 1


C.A. Rejects Suit Over Failure to Report Sexual Abuse


By STEVEN M. ELLIS, Staff Writer


The First District Court of Appeal has rejected a negligence claim against the Bay area city of Livermore by five minors who alleged that a police officer’s failure to report a suspected child molester to the proper agencies left the man free to sexually abuse them.

Affirming the Alameda Superior Court’s grant of summary judgment for the city, Justice James R. Lambden wrote for Div. Two in an unpublished opinion issued Tuesday that the officer’s failure to comply with his statutory duty did not contribute to or cause the children’s subsequent molestation because neither Child Protective Services nor the local district attorney would have taken any action.

The five children brought suit in 2005, claiming they were molested by Brandon Sean Roberts, a coach at the Tri-Valley Gymnastics Center, in the year following Livermore Police Department Detective Gregory Fuller’s failure to report or fully investigate a similar allegation of abuse against Roberts in 2002.

Noting that another child’s mother had reported that Roberts had molested her son in June of that year, the plaintiffs alleged that Roberts would have been arrested, or that their parents would have known to protect them, if Fuller—who had recently been promoted to the department’s sex crimes unit from patrol duty—had properly investigated and reported the allegation to the local district attorney or CPS as required by Penal Code Sec. 11166.

Fuller, who had neither been trained in sex crimes investigation, nor previously conducted any such investigations, interviewed the child and became convinced that a molestation had occurred. However, as the alleged victim had moved from the area, Fuller did not immediately locate Roberts, and did not arrest him until June 2003.

He also did not cross-report the allegation to the other agencies, testifying later that he “inadvertently” failed to do so because he was unaware of the statute’s requirement.

After Roberts pled guilty to sexual molestation and was sentenced to prison, the plaintiffs—all but one of whom were students at the gym—alleged one count of negligence and one count of negligence per se. They claimed that Fuller “inexplicably held the investigation open for many months without any further investigation,” and that they had suffered injuries from Roberts because of Fuller’s conduct.

However, the city moved for summary judgment based on a declaration from the supervisor of the district attorney’s office’s sexual assault unit that no action would have been taken on a Sec. 111.66 report absent a completed police report, and on a declaration by the program manager for emergency response for the county’s CPS that the agency would defer to the police investigation given Roberts’ lack of continued access to the victim.

Finding that the plaintiffs were unable to establish a causal connection between their injury and Fuller’s actions or inaction, the Alameda Superior Court granted the motion.

On appeal, the plaintiffs argued that a declaration by former San Jose Police Department Chief Joseph D. McNamara—who opined that the Livermore Police Department “clearly failed in its obligation” to train Fuller, and that the detective should have recognized the possibility that Roberts would molest other children, as well as the urgency for apprehension—raised a triable issue of fact regarding causation.

But Lambden rejected the contention, agreeing with the lower court that the children failed to rebut the city’s evidence.

“Rather than furnish evidence to contradict the declarations…, the children merely assert that there was a ‘possibility that a reasonable police officer would have followed up the agency’s failure to act with an inquiry—and that inquiry would have led to the arrest of Brandon Roberts,’” he wrote.

“The problem is that the statute does not require any further inquiry by the police officer and therefore the failure to make such an inquiry would not constitute negligence per se. If this record contained any evidence that, once notified, CPS or the district attorney’s office may have made some inquiry, investigation, or recommendation regarding the whereabouts of Robertson, which would have alerted the gym about the allegations against Robertson, our conclusion…may have been different.”

Lambden similarly declined to find causation based on the plaintiffs’ claims of inadequate investigation, noting that the undisputed facts established the detective did “some investigation.”

He explained:

“Although the facts of this particular case are very disturbing…, nothing in this record indicates that Fuller’s failure to comply with his mandated duty under Sec. 11166(k) caused the children’s injury. The fact that there is no evidence of causation in this case does not warrant eviscerating the long-standing policy reasons for providing police officers with immunity when conducting an investigation.”

Presiding Justice J. Anthony Kline and Justice James A. Richman joined Lambden in his opinion.

The case is K.S. v. City of Livermore, A117613.


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