NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 9 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY AGOSTO, an individual and as No. 23-55800 J.L.A.’s successor in interest, D.C. No. Plaintiff-Appellant, 2:21-cv-08305-FWS-JDE

v.

MEMORANDUM*

COUNTY OF LOS ANGELES, a public entity,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Fred W. Slaughter, District Judge, Presiding

Argued and Submitted November 19, 2024 Pasadena, California

Before: RAWLINSON, CHRISTEN, and JOHNSTONE, Circuit Judges.

Gary Agosto appeals the district court’s grant of summary judgment and

dismissal of his state-law negligence claim premised on California Government

Code section 815.6 against the Los Angeles County Department of Children and

Family Services (“DCFS”) arising from the death of his child, J.L.A. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. jurisdiction over a grant of summary judgment under 28 U.S.C. § 1291,1 see Acri v.

Varian Associates, Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc) (noting our

discretionary jurisdiction over appeal from the dismissal of supplemental state law

claims “when neither party has raised the issue”), and we review de novo, Sw. Fair

Hous. Council, Inc. v. Maricopa Domestic Water Improvement Dist., 17 F.4th 950,

959 (9th Cir. 2021). We assume the parties’ familiarity with the facts and recite

them only as necessary. We affirm.

1. Under California Government Code section 815.6, a public entity

such as DCFS 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.” State Dep’t of

State Hosps. v. Superior Ct., 349 P.3d 1013, 1018 (Cal. 2015); Cal. Gov’t Code.

§ 815.6. “[A] mandated reporter shall make a report . . . whenever the mandated

reporter, in the mandated reporter’s professional capacity or within the scope of the

mandated reporter’s employment, has knowledge of or observes a child whom the

mandated reporter knows or reasonably suspects has been the victim of child abuse

or neglect.” Cal. Penal Code § 11166(a). DCFS social worker Maple Lee, a

mandatory reporter, was following up on a referral to DCFS when she met with

J.L.A.’s mother, Lacey Mazzarella, on August 15. See Cal. Penal Code

1 Agosto withdrew his appeal of his claim under 42 U.S.C. § 1983. § 11165.7(a)(15), (18), (21). Lee therefore was required to make a new report of

child abuse if, while “dispatched to investigate,” she “observed evidence” of “a

different, previously unreported incident or instance of child abuse.” B.H. v.

County. of San Bernardino, 361 P.3d 319, 337 (Cal. 2015).

Agosto argues that Lee’s meeting with Mazzarella triggered Lee’s

mandatory duty to report because Lee knew or should have suspected that

Mazzarella drove to the meeting under the influence of alcohol with J.L.A. in the

car. During discovery, Mazzarella testified that she had been drinking alcohol prior

to the meeting, and that Lee had asked her if she smelled alcohol and Mazzarella

had denied the smell. But at the time of the meeting, Lee did not observe

Mazzarella behave or drive in a manner that suggested she was intoxicated. So Lee

did not have knowledge of a new instance of child abuse. Nor could Lee have

reasonably suspected a new instance of child abuse. Under California law,

“‘reasonable suspicion’ means that it is objectively reasonable for a person to

entertain a suspicion, based upon facts that could cause a reasonable person in a

like position, drawing, when appropriate, on the person’s training and experience,

to suspect child abuse or neglect.” Cal. Penal Code § 11166(a)(1). Without more,

on this record there were no facts before Lee that could have caused a person with

her training and experience to suspect a new instance of child abuse. See People v.

Davis, 25 Cal. Rptr. 3d 92, 101 (Ct. App. 2005) (“the duty to report arises . . . on the basis of what a reasonable person would suspect based on th[e] facts” known to

the mandatory reporter at the time); see also B.H., 361 P.3d at 331 (distinguishing

the section 11166(a) duty to report from a duty to investigate). Because Lee did not

observe a new instance of child abuse and did not have facts before her that could

have caused an objectively reasonable person to suspect child abuse under section

11166(a), there is no genuine issue of fact material to whether she had a duty to

report.

2. Under California law, “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.”

Cal. Gov’t Code § 820.2. “[A] public entity is not liable for an injury resulting

from an act or omission of an employee of the public entity where the employee is

immune from liability.” Id. § 815.2(b). When not mandated by statute, “decisions

of child welfare agency employees—regarding determinations of child abuse, the

potential risk to a child, placement of a child, removal of a child, and other

resultant actions—are subjective discretionary ones.” B.H., 361 P.3d at 333

(emphasis in original). As such, Lee’s decision not to report pursuant to California

Penal Code section 11166(a) was discretionary, and the County is immune from

liability.

AFFIRMED.