On May 19, 2007, then 14-year-old Loren Schaller made a quick Saturday stop at Creighton’s American Bakery in San Francisco. While in the bakery, she was attacked by Scott Thomas, a “high control” parolee who had been released without supervision from the San Quentin prison less than 24 hours before.

Thomas stabbed Schaller repeatedly with a hunting knife in the head, wrist, leg, back and wrist. Her life was only spared because 60-year-old Kermit Kubitz intervened to stop the assault. As a result of his heroic acts, Kubitz also was injured, receiving multiple stab wounds to his chest. Thomas’ attack cost Schaller the partial use of her right arm and required several surgeries.

It later came to light that officials at the San Quentin prison had made several mistakes that led to Thomas’ release. As a high control prisoner, state law and California Department of Corrections and Rehabilitation (CDCR) regulations mandated specific procedures that had to be followed for his release from prison. These procedures included not releasing Thomas on a Friday and only releasing him into the custody of his parole agent.

Instead, Thomas was taken from the San Quentin prison on Friday, May 18, 2007 and dropped off at the San Rafael Transit Center on his own while his parole agent sat nearly 400 miles away in Los Angeles. From there, Thomas traveled to San Francisco where he would attack Schaller and Kubitz the next day.


Schaller filed a civil claim for her injuries against the CDCR for wrongfully releasing Thomas from prison in violation of state law and its own written policies. The state argued that it did not owe a duty of care to Schaller or Kubitz since their attack was not reasonably foreseeable. The state also argued that it did not owe a general duty of care to protect the public at large from the acts of parolees. Additionally, the state argued that it had immunity under G.C. § 845.8(a), which shields state prison officials from liability for their discretionary decision to release prisoners.

At trial, Superior Court Judge Peter Busch found in favor of the state, agreeing that the state did not owe a duty of care to the victims, stating that the “state has no duty to protect the public from a newly freed parolee, even if the prison system violated its own rules on how and when high-security inmates should be paroled.”

Judge Busch, however, did not agree that the state was immune from liability under G.C. § 845.8(a), holding that the court could not determine as a matter of law that the acts were not ministerial acts in carrying out the decision to parole after that decision had been made.

Schaller then appealed Judge Busch’s decision to the First Appellate District Court, Division Three.


On appeal, Schaller reasserts that the state has both a common law duty and a statutory duty of care to protect the public from foreseeable risk of harm. When CDCR officials fail to follow clear, unambiguous state law and administrative policy by releasing a high control, high risk inmate into the general population, they create a foreseeable risk of harm.

Schaller also argues that it is a fundamental principle of California law that all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct – a duty that is memorialized in Civil Code § 1714.

Additionally, Schaller argues that the CDCR is not protected by governmental immunity in this case because it involved the completion of ministerial, not discretionary, duties after the decision already had been made to parole Thomas, rather than being part of the decision to release the prisoner. G.C. § 845.8(a) only provides immunity to those decisions that lead up to making the determination to release or parole a prisoner, not to those acts that must be completed to carry out the act after the decision has been made.

Lastly, Schaller argues that finding liability in this case will place only a minimal burden on prisons and prison officials to follow pre-existing law and policy in light of the unacceptable risk of harm to the public that is created by a failure to follow these laws and policies.


In response to Schaller’s arguments, the state largely poses the same arguments against liability as it asserted before the trial court. Namely, the state argues that there is no general duty of care under the common law or specific duty of care under the state statute that imposes tort liability on the CDCR for Thomas’ acts once he was released from prison.

The state argues that the CDCR did not have a direct or continuing relationship with the victims and that the victims were not reasonably foreseeable or readily identifiable targets. Further, the state argues that Thomas’ release from prison was not the proximate cause of the victims’ injuries.

Lastly, the state argues that the CDCR is immune from liability under G.C. § 845.8(a) for any injury that results from its determination of whether to parole or release a prisoner, which includes the terms and conditions of that parole, such as whether or not parole should be supervised.


Loren Schaller is now 18-years-old and planning for her life after high school. Her family is frustrated that the trial court did not find in their favor and hopeful that the decision can be overturned. Scott Thomas, on the other hand, is currently awaiting trial on two charges of attempted murder. Jury selection in his case was underway in early February.

Should the appellate court uphold the lower court’s ruling in favor of the state, it will be sending a loud message to Californians that the state and the CDCR are not concerned about public safety and that prison officials do not need to follow their own policies and state laws. Hopefully, this is not the message Californians will receive.