1

Filed 11/2/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

STATE DEPARTMENT OF STATE 

HOSPITALS,

Petitioner,

v.

THE SUPERIOR COURT OF NAPA 

COUNTY,

Respondent;

JANE DOE,

Real Party in Interest.

 A164384

 (Napa County

 Super. Ct. No. 21CV000760)

Jane Doe alleges that an employee of the State Department 

of State Hospitals sexually abused her when Doe was a minor 

and ward of the state. Doe sued the Department, asserting 

causes of action for negligence (first cause of action), negligent 

supervision/training/hiring/retention (second cause of action), 

sexual battery (third cause of action), assault (fourth cause of 

action), and statutory civil rights violations (fifth cause of action). 

The Department demurred and then filed a petition for writ of 

mandate after the trial court sustained its demurrer in part (with 

leave to amend) and overruled it in part. We grant writ relief 

because Doe’s complaint is barred by the Department’s immunity 

under Government Code section 854.8, subdivision (a)(2).1

1 Undesignated statutory references are to the Government 

Code.
2

BACKGROUND

A.

The Government Claims Act (§ 810 et seq.; the Act) sets out 

a comprehensive scheme of liability and immunity statutes that 

govern actions against public entities. (State Dept. of State 

Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348 (Dept. of 

State Hospitals); County of Los Angeles v. Superior Court (2005) 

127 Cal.App.4th 1263, 1267.) Under the Act, a public entity is 

not liable for injury except as otherwise provided by statute. 

(§ 815, subd. (a); Dept. of State Hospitals, supra, at p. 348.) 

Among the liability statutes, section 815.2, subdivision (a), 

provides that a public entity may be vicariously liable for injury 

caused by an act or omission of its employees acting within the 

scope of their employment. However, even if a public entity may 

be sued under a liability statute, the Act also includes immunity 

provisions that prevail in specified circumstances. (Dept. of State 

Hospitals, supra, at p. 348.)

B.

Doe alleges that, when she was a minor and ward of the 

state confined at Napa State Hospital, she was sexually assaulted 

by a Department counselor between 1997 and 1999. In 

particular, Doe alleges that the counselor transported her and 

other female residents to a sleeping facility in the evenings. The 

counselor frequently provided medication that made the minor 

residents drowsy and then sexually assaulted Doe and others at 

the sleeping facility. She also adds conclusory allegations that 

the Department knew or should have known that the counselor 

had previously engaged in unlawful sexual conduct with other 

minors and that he continued to do so with Doe. Doe’s complaint 

seeks damages for her injuries. 
3

C.

The Department demurred, arguing, in relevant part, that 

it is immune from liability pursuant to section 854.8, subdivision 

(a)(2). Doe opposed the demurrer, contending that an exception 

to the Department’s statutory immunity applies under section 

855, subdivision (a). 

The trial court overruled the Department’s demurrer in 

part and sustained it in part. With respect to immunity, the 

court overruled the demurrer as to Doe’s first, third, fourth, and 

fifth causes of action, concluding that section 815.2 provides 

minimum personnel standards and thereby triggers the 

immunity exception in section 855. The trial court granted Doe 

leave to amend to “bring the second cause of action within the 

scope of the exception to section 854.8.” 

D.

The Department filed a petition for writ of mandate. We 

issued an order to show cause. (See Babb v. Superior Court 

(1971) 3 Cal.3d 841, 851; see also County of Sacramento v. 

Superior Court (1972) 8 Cal.3d 479, 481.) Doe filed a return to 

the order to show cause and the Department filed a reply.2 

2 Doe contends that the Department’s petition for relief has 

been mooted because, after the challenged order was entered, she 

filed a first amended complaint and the Department filed an 

answer. We reject the argument because Doe does not show that 

these developments make it impossible for us to provide effective 

relief. (See Lockaway Storage v. County of Alameda (2013) 216 

Cal.App.4th 161, 174-175.) 
4

DISCUSSION

A.

The Department argues that it is immune from liability on 

Doe’s complaint pursuant to section 854.8. We agree. 

 1.

Public entities have broad immunity from liability for 

injuries suffered by an inpatient of a mental institution. (§ 854.8, 

subd. (a)(2); Lockhart v. County of Los Angeles (2007) 155 

Cal.App.4th 289, 292 (Lockhart); Guzman v. County of Los 

Angeles (1991) 234 Cal.App.3d 1343, 1348-1349.) Specifically, the 

governing statute provides: “Notwithstanding any other provision 

of this part, except as provided in this section and in Sections 814, 

814.2, 855, and 855.2, a public entity is not liable for: [¶] . . . [¶] 

(2) An injury to an inpatient of a mental institution.” (§ 854.8, 

subdivision (a)(2), italics added.) 

Section 854.8 means that a public entity generally cannot 

be directly sued for negligence or other torts committed by its 

employees that injure an inpatient at a mental institution. 

(County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839, 

844.) As the language italicized above makes clear, section 854.8 

immunity prevails over all liability provisions of the Act—with 

the exception of sections 814, 814.2, 855, and 855.2. (Guess v. 

State of California (1979) 96 Cal.App.3d 111, 119; see Dept. of 

State Hospitals, supra, 61 Cal.4th at p. 348; Creason v. 

Department of Health Services (1998) 18 Cal.4th 623, 635.) 

Doe relies largely on section 855. (§ 854.8, subdivision 

(a)(2).) Section 855, subdivision (a), provides: “A public entity 

that operates or maintains any medical facility that is subject to 

regulation by the State Department of Health Services, Social 

Services, Developmental Services, or Mental Health is liable for 

injury proximately caused by the failure of the public entity to 

provide adequate or sufficient equipment, personnel or facilities 
5

required by any statute or any regulation . . . prescribing 

minimum standards for equipment, personnel or facilities, unless 

the public entity establishes that it exercised reasonable diligence 

to comply with the applicable statute or regulation.” (Italics 

added.) 

Section 855 does not apply when a plaintiff points to a 

purported violation of any other statute or regulation. (Lockhart, 

supra, 155 Cal.App.4th at pp. 307-308.) Rather, section 855, 

subdivision (a), is properly understood to impose liability “only

when the statute or regulation sets forth a specific standard that 

gives the public medical facility clear notice as to the minimum 

requirements with which it must comply.” (Lockhart, supra, at p. 

308, italics added.) 

2.

Doe contends that a different provision of the Act, section 

815.2, establishes minimum personnel standards that trigger 

liability under section 855. The trial court erred by accepting her 

argument. 

First, section 815.2 does not set any minimum standard for 

personnel. Section 815.2 provides: “(a) 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. [¶] (b) Except as otherwise provided by statute, 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.” Furthermore, even if we accept (for 

the sake of argument) Doe’s construction of section 855 under the 

last antecedent rule (see White v. County of Sacramento (1982) 31 

Cal.3d 676, 679), section 815.2 does not require any “public entity 

to provide adequate or sufficient equipment, personnel or 

facilities.” (§ 855.) 
6

Second, Doe’s argument fails for another, more 

fundamental reason: immunity under section 854.8, subdivision 

(a), is subject only to the exceptions set out expressly in the 

statute itself. Section 815.2 is not one of the exceptions. (See 

§ 854.8, subd. (a) [“Notwithstanding any other provision of this 

part, except as provided in this section and in Sections 814, 814.2, 

855, and 855.2 . . . .”].) Section 815.2 is, instead, merely a general 

liability provision of the Act, establishing vicarious liability for 

the acts or omissions of government employees. It is trumped by 

the specific immunity provision of section 854.8. (See Dept. of 

State Hospitals, supra, 61 Cal.4th at p. 348 [“[e]ven when a duty 

exists, California has enacted specific immunity statutes that, if 

applicable, prevail over liability provisions”]; Creason v. 

Department of Health Services, supra, 18 Cal.4th at p. 635 [“[i]f a 

specific immunity statute applies, it ‘cannot be abrogated by a 

statute which simply imposes a general legal duty or liability’ ”].) 

We must reject the trial court’s interpretation of the Act. If 

a public agency can be vicariously liable, under section 815.2, 

whenever an employee of a mental institution injures a patient, it 

would eviscerate the immunity provided in section 854.8, 

subdivision (a)(2), and undercut the structure of the Act. 

3.

Doe insists that she should be granted leave to amend so 

that she may have another opportunity to allege that her claims 

fall within the section 855 exception. We disagree.

Leave to amend should be granted if the plaintiff 

demonstrates that there is a reasonable possibility a defect can 

be cured by amendment. (Zelig v. County of Los Angeles (2002) 

27 Cal.4th 1112, 1126.) 

In her return, Doe contends she can amend her complaint 

to allege that the Department violated other statutes and 

regulations, including Penal Code section 11166, subdivision (a), 
7

which requires mandated reporters to report known or suspected 

instances of child abuse. (See also Cal. Code Regs., tit. 22, § 

71567, subd. (a)(2) [psychiatric hospitals shall report “allegations 

of sexual assault of a patient . . . within 24 hours after 

detection”].) But neither the statute nor the regulation 

“prescrib[es] minimum standards for equipment, personnel or 

facilities.” (Gov. Code, § 855, subd. (a); Lockhart, supra, 155 

Cal.App.4th at p. 307.) Furthermore, Doe does not indicate that 

she can amend her complaint to allege facts showing how these 

provisions were violated or proximately caused her injury. 

Doe also maintains that the Department violated various 

staffing regulations—such as California Code of Regulations, title 

22, section 71225, subdivision (c), which requires an acute 

psychiatric hospital to provide “[a] sufficient number of 

appropriate personnel . . . for the safety of the patients.” (See 

also Cal. Code Regs., tit. 22, § 71501, subd. (a)(3) [mandating 

provision of “appropriate physical resources and personnel”]; id. § 

71641, subd. (a) [“[H]ospital shall be clean, sanitary, and in good 

repair at all times. Maintenance shall include provision and 

surveillance of services and procedures for the safety and wellbeing of patients, personnel and visitors.”]; id. § 71521, subd. (a) 

[“hospital shall recruit qualified personnel and provide initial 

orientation of new employees, a continuing in-service training 

program and competent supervision designed to improve patient 

care and employee efficiency”].)

Again, Doe does not demonstrate how she can factually 

allege the Department’s failure to comply with the above 

regulations. Furthermore, all of the statutes and regulations she 

points to are too general to trigger the section 855 exception. 

(See Lockhart, supra, 155 Cal.App.4th at pp. 307-308.) Lockhart

specifically held that regulations providing only broad goals—

such as requiring “ ‘sufficient’ ” staff or equipment—are 

inadequate to trigger section 855 because they do not specifically 
8

direct the manner in which the goal is to be attained. (Lockhart,

at pp. 293, 308.) “The plain language of . . . section 855 clearly 

states that not all statutory or regulatory violations will provide a 

basis for liability, only those that prescribe minimum 

standards. . . . [Accordingly], regulations sufficient to establish 

liability under . . . section 855 must require something specific of 

the public entity, and not simply set forth a goal, leaving it to the 

entity’s discretion as to how to meet that goal.” (Lockhart, supra, 

at p. 309.) 

None of the regulations Doe cites provide a “specific 

minimum standard” sufficient to put the Department on “notice 

as to the minimum requirements with which it must comply.” 

(Lockhart, supra, 155 Cal.App.4th at p. 308.) The same holds 

true for Welfare and Institutions Code section 5325.1, 

subdivisions (b) and (c), which recognize the rights of persons 

with mental illness “to dignity, privacy, and humane care” and 

“to be free from harm, including unnecessary or excessive 

physical restraint, isolation, medication, abuse, or neglect.”

Doe relies on a decision reached by this Division, in Baber 

v. Napa State Hospital (1989) 209 Cal.App.3d 213 (Baber), to 

support her assertion that she can establish a basis for liability 

under section 855, subdivision (a), by alleging the Department 

violated generally worded regulations. 

In Baber, supra, 209 Cal.App.3d 213, the plaintiff sought to 

hold a public entity liable under section 855, subdivision (a), for 

violating similar regulations—i.e., those requiring “ ‘adequate 

space . . . to meet the needs of the [medical] service,’ ” “ ‘[a] 

sufficient number of appropriate personnel,’ ” “ ‘appropriate 

physical resources and personnel,’ ” and that “ ‘[t]he hospital . . . 

be clean, sanitary, and in good repair at all times.’ ” (Baber, 

supra, at p. 220.) Despite the statutory language indicating that 

qualifying regulations must “ ‘prescrib[e] minimum standards for 

equipment, personnel or facilities,’ ” the Baber court rejected the 
9

public entity’s position that the standards were insufficiently 

quantifiable or objective for a purported violation to overcome 

immunity. (Id. at pp. 217, 220.) 

In reaching that determination, the Baber court explained 

that when the Legislature entrusted rulemaking authority to the 

Department of Health Services (former Health & Saf. Code, 

§§ 1275, 1276), the agency was granted the authority to adopt 

broad and flexible standards. (Baber, supra, 209 Cal.App.3d at 

pp. 219-220.) Baber also reasoned that, in the absence of 

sufficiently specific regulations, minimum standards could be 

established by collateral evidence—such as industry standards, 

“correspondence, directives, inspection reports or other official 

memoranda indicating more specifically what was required of the 

hospital during the relevant time period.” (Id. at pp. 220-221.)

The Second District Court of Appeal, in Lockhart, explicitly 

disagreed with Baber’s interpretation of section 855, subdivision 

(a), noting its conflict with the statute’s plain language. 

(Lockhart, supra, 155 Cal.App.4th at pp. 308-309.) 

We decline Doe’s request to ignore Lockhart and apply 

Baber instead. Notably, in the 15 years since Lockhart was 

decided, no published opinion has favored the Baber court’s 

statutory construction over Lockhart’s. And our colleagues in 

Division Four of this Court have explicitly rejected the notion 

that broadly stated goals in regulations—such as those requiring 

hospitals to be “ ‘in good repair’ ” and entitling psychiatric 

patients “ ‘to be free from harm’ ”—are “minimum standards” 

sufficient to form the basis for liability under section 855, 

subdivision (a). (See Johnson v. Alameda County Medical Center 

(2012) 205 Cal.App.4th 521, 529-530; but see id., at p. 530.) 

We conclude that Lockhart’s reasoning is more persuasive 

than Baber’s. Baber’s holding—that section 855, subdivision (a), 

applies in the absence of any statute or regulation prescribing a 

minimum standard for equipment, personnel or facilities—is 
10

inconsistent with the plain language of section 855, subdivision 

(a). Accordingly, we disapprove Baber and instead follow 

Lockhart. Because Baber was both wrongly decided and has not 

been followed by other courts of appeal, overruling it will not 

undermine the orderly administration of justice. (See Estate of 

Sapp (2019) 36 Cal.App.5th 86, 109 & fn. 9.)

Doe fails to demonstrate that she can allege the 

Department’s violation of any minimum standard sufficient to 

form the basis for liability under Government Code section 855, 

subdivision (a). Accordingly, the trial court erred to the extent it 

both overruled the Department’s demurrer on immunity grounds 

and sustained it with leave to amend.3

DISPOSITION 

Let a peremptory writ of mandate issue directing the 

superior court to vacate its order sustaining in part and 

overruling in part the Department’s demurrer, and to enter a 

new order sustaining the demurrer, without leave to amend, on 

the ground that the Department is immune under section 854.8, 

subdivision (a)(2). The Department is entitled to its costs in this 

writ proceeding. (Cal. Rules of Court, rule 8.493(a).)

3 We need not address the Department’s alternative 

argument—that Doe’s causes of action are barred because she did 

not present a claim within six months of when her cause of action 

accrued (Gov. Code, §§ 911.2, 945.4) and that the trial court erred 

in its construction of Code of Civil Procedure section 340.1, 

subdivision (q). We note only that the Legislature recently 

enacted another amendment to Code of Civil Procedure section 

340.1, which will become effective on January 1, 2023. (See Stats. 

2022, ch. 444, § 1 [enacted Sep. 19, 2022].)
11

______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J. 

____________________________

WISEMAN, J.*

A164384

* Retired Associate Justice of the Court of Appeal, Fifth 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
12

Napa County Superior Court No. 21CV000760, Hon. Victoria D. 

Wood. 

Rob Bonta, Attorney General, Danielle F. O’Bannon, Senior 

Assistant Attorney General, Lora D. Curtis, Supervising Deputy 

Attorney General, and Michelle D. Magarrell and Amie Bears, 

Deputy Attorneys General, for Petitioner. 

Arias Sanguinetti Wang & Torrijos, LLP and Mike Arias, Elise R. 

Sanguinetti and Jamie G. Goldstein; Esner, Chang & Boyer and 

Stuart B. Esner and Holly N. Boyer, for Real Party in Interest.