GARCIA v. W&W COMMUNITY DEVELOPMENT, INC. (06/18/2010, No. E049099, 4th Dist.) __ Cal.App.4th __

Plaintiff Cesar Garcia's 2-year-old daughter Alexis and 4-year-old son were placed in a foster home licensed by defendant W&W Community Development (doing business as Children's Plus Foster Agency). While placed in the foster home, the foster mother left Alexis unattended in a half-full bathtub for several minutes, where Alexis drowned. Garcia sued the Foster Family Agency seeking damages on his own behalf and on behalf of Alexis's estate, alleging various deficiencies in the training, background investigation and licensing of the foster parents and asserting liability under the doctrines of negligence, wrongful death, and respondeat superior liability.

Defendant moved for summary judgment on various grounds, including the contention that, as a Foster Family Agency, it was performing a quasi-governmental function and was therefore immune from liability under section 820.2 of the California Government Code, which holds that "[e]xcept as otherwise provided by statute, 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." The trial court agreed with this contention and granted defendant's motion for summary judgment as to defendant. Garcia timely appealed.

The Court of Appeal rejected this claim. The Court explained that, as a preliminary matter, counties are not generally immune from liability for the acts of its employees. Rather, the Court explained, section 815.2 of the Government Code provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative". The Court stated that "Even if we were to agree with defendant that it has the same liability as a county for the acts of its employees, that claim does not foreclose liability on defendant‟s part. The trial court was incorrect in finding otherwise."

Although the Court rejected defendant's assertion that section 820.2 of the Government Code provided the foster family agency with quasi-governmental immunity in this case, it concluded that Defendant was not liable under the doctrine of respondeat superiorbecause the character of the relationship between a foster family agency and its licensed foster parents is that of an independent contractor and not that of an employee or agent, and that plaintiff had failed to raise a triable issue of material fact as to the alleged deficiencies in defendant's training and oversight of the foster home. For those reasons, the trial court's grant of summary judgment was nonetheless affirmed.

The Court's opinion can be found online here (PDF).

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