R.S. v. Orange County Social Services Agency CA4/3

Filed 9/20/24 R.S. v. Orange County Social Services Agency CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

R.S.,

Plaintiff and Appellant, G063041

v. (Super. Ct. No. 30-2021-

01183062)

ORANGE COUNTY SOCIAL

SERVICES AGENCY et al., OPINION

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County,

David J. Hesseltine, Judge. Reversed.

Herman Law and Blake J. Woodhall for Plaintiff and Appellant.

Koeller, Nebeker, Carlson & Haluck, Zachary M. Schwartz,

Amanda B. Peterson and Kiran S. Idrees for Defendants and Respondents.

Plaintiff was about eight years old when he was placed into foster

1

care in the home of Howard Graubner and his wife Ann Graubner.

Throughout the next seven years, Howard repeatedly sexually abused R.S.

until R.S. was returned to the care of his biological mother. After the

California Legislature extended the statute of limitations for childhood

sexual abuse, R.S. sued the Orange County Social Services Agency and the

County of Orange (collectively, the County) for negligence in failing to protect

him from Howard’s criminal conduct. The trial court granted the County’s

motion for summary judgment, finding the County was immune from liability

pursuant to Government Code sections 815.2 and 820.2 because R.S.’s claims

were based on the discretionary acts of the County’s social worker employees

in not removing him from the Graubners’ home. The court also found the

County did not have a legal duty to protect R.S. from Howard’s conduct

because it was unforeseeable.

We reverse. The County failed to meet its initial burden of

proving it has immunity for the acts or omissions of its employees in this

case. We agree that, like a social worker’s act of placing a child in a particular

foster home, the act of removing—or choosing not to remove—a child from an

existing placement is a discretionary act. However, the County failed to show

that its employees actually exercised any discretion by making a considered

decision to leave R.S. in the Graubners’ care after R.S. complained to a social

worker that he felt “weird” and “yucky” showering with his foster father.

Accordingly, the trial court erred in granting the County summary judgment

1

We refer to Howard and Ann by their first names for ease of

reference and to avoid confusion. We refer to Howard and Ann collectively as

the Graubners.

2

on the ground that it has discretionary immunity for the acts or omissions of

its employees.

The trial court also erred in finding no legal duty because it

applied the wrong analysis. Whether a defendant owes a duty to protect a

plaintiff against a third party is governed by a two-step inquiry. (Brown v.

USA Taekwondo (2021) 11 Cal.5th 204, 209 (Brown).) First, the court

determines whether a special relationship exists between the plaintiff and

the defendant that gives rise to a duty to protect. In the case of a foster child

and the governmental agency that placed that child in a foster home, such a

special relationship unquestionably exists. Second, the court considers

whether the relevant public policy considerations require an exception to that

duty. (See Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland).) Here, the

trial court did not properly analyze and apply the Rowland factors; the

appellate record shows no basis on which we could conclude as a matter of

law the County should be relieved of its legal duty to R.S.

FACTUAL AND PROCEDURAL BACKGROUND

In 1970, R.S. was placed in foster care in the Graubners’ home.

At the time, R.S. was about eight years old. The Graubners were licensed

2

foster parents. Neither Howard nor Ann had any criminal history and

neither had ever been accused of sexual abuse of a minor. R.S. lived in the

Graubners’ home until 1976 or 1977, when he was returned to the custody of

his biological mother.

Howard sexually molested and abused R.S. frequently,

repeatedly, and persistently throughout the time R.S. was placed with the

2

At the time the Graubners were licensed, licensure decisions

were made by the California Department of Social Services, not the County.

The Graubners’ licensure is not at issue in this appeal.

3

Graubners. When R.S. was about nine years old, he told social worker

Barbara Voss, “he did not like taking showers with foster father, Howard

Graubner. Plaintiff told Barbara Voss, ‘I feel really weird taking a shower

with dad’. He remembers saying ‘it was yucky’.” According to R.S., Voss said

something to him “that made me feel like it was going to be okay.

[¶] . . . [¶] . . . I don’t remember what her response was, but I remember how

I felt. I remember feeling a little bit of relief, like she heard me; like she was

going to make it better; that she was gonna do something about that; so

I wouldn’t have to go through that again. I don’t remember the words, but

I remember how I felt.” The County does not appear to have taken any

investigative or corrective action in response to R.S.’s statements to Voss.3

It did not remove R.S. from the Graubners’ home as a result of R.S.’s report to

Voss.

In 1986, the County investigated allegations that Howard had

sexually molested children in his home. In 2019, Howard admitted in writing

to sexually abusing R.S., as well as his four biological sons.

In 2021, R.S. sued the County for negligence.4 R.S.’s amended

complaint alleges the County’s employees breached their duty to R.S. by

failing to protect him from sexual abuse, failing to prevent foreseeable sexual

abuse, failing to exercise reasonable oversight, and failing to institute

3

According to the County, no records relating to R.S., his

dependency proceedings, or his foster care placement are still in existence.

The County further states that it has been unable to locate Voss and she may

be deceased.

4

Effective January 1, 2020, Code of Civil Procedure section 340.1

was amended to extend the limitations period for a claim for damages due to

childhood sexual assault. (Stats. 2019, ch. 861, § 1.)

4

corrective measures. The complaint also alleges the County knew or

reasonably should have known of the danger posed to R.S., but failed to act

on that knowledge.

The County filed a motion for summary judgment, R.S. filed

opposition, and the trial court conducted a hearing. The court granted the

motion for summary judgment and entered judgment in favor of the County

5

and against R.S. R.S. filed a timely notice of appeal.

DISCUSSION

I.

STANDARD OF REVIEW

We review an order granting summary judgment de novo.

(Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67

Cal.App.5th 833, 843.) We view the evidence in the light most favorable to

the nonmoving party, liberally construing that party’s evidence and strictly

scrutinizing the moving party’s evidence. (Ibid.) We resolve any evidentiary

doubts or ambiguities in favor of the nonmoving party. (Ibid.)

In a motion for summary judgment, the moving defendant must

show the plaintiff cannot establish one or more of the elements of the cause of

action or that there is a complete defense to the cause of action. (Montes v.

Young Men’s Christian Assn. of Glendale, California (2022) 81 Cal.App.5th

1134, 1139.) If the moving defendant makes that initial showing, the burden

shifts to plaintiff to show through admissible evidence that triable issues of

fact exist. (Estuary Owners Assn. v. Shell Oil Co. (2017) 13 Cal.App.5th 899,

911.)

5

R.S.’s request for a continuance of the hearing on the motion for

summary judgment was denied. (Code Civ. Proc., § 437c, subd. (h).) R.S. does

not challenge this ruling on appeal.

5

II.

THE COUNTY FAILED TO ESTABLISH IT IS ENTITLED TO IMMUNITY

A public entity is only liable for injuries caused by the acts or

omissions of its employees within the scope of their employment. (Gov. Code,

6

§ 815.2, subd. (a).) The public entity cannot be liable when the employee’s act

or omission results from an exercise of discretion vested in the employee. (Id.,

§§ 815.2, subd. (b), 820.2.) Discretionary immunity is an affirmative defense.

(Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 98–99.) The parties

disagree as to whether the failure to remove R.S. from the Graubners’ home

was a discretionary act (for which there would be immunity) or an

operational or ministerial act (for which there would not).

“Where there is negligence . . . liability for resulting harm is the

rule, and immunity is the exception. [Citations.] Accordingly, particular

immunities have been strictly construed to apply only to the functions which

the statute or common law rule creating each immunity was intended to

protect; immunities have not been applied to other activities, whether or not

the person claiming immunity sometimes, or even ordinarily, fulfills the

protected functions.” (Scott v. County of Los Angeles (1994) 27 Cal.App.4th

125, 144 (Scott).)

6

In the amended complaint, R.S. alleged the County was liable

based on Government Code sections 815.4 (liability due to acts or omissions

of independent contractor) and 815.6 (failure to discharge statutory duty) as

well as section 815.2. On summary judgment, the County offered evidence of

undisputed material facts that (1) Graubner was not an independent

contractor of the County, and (2) no mandatory statutory duty applied in this

case. The trial court specifically found the County was not liable under

section 815.6. On appeal, R.S. does not argue the County was liable under

either section 815.4 or 815.6.

6

A. Immunity for Discretionary, Not Ministerial, Acts and Omissions

In Johnson v. State of California (1968) 69 Cal.2d 782 (Johnson),

the California Supreme Court addressed whether a governmental agency’s

employees’ acts or omissions are discretionary, in which case they are entitled

to immunity, or ministerial, in which case they are not: “In drawing the line

between the immune ‘discretionary’ decision and the unprotected ministerial

act we recognize both the difficulty and the limited function of such

distinction. As we said in Lipman v. Brisbane Elementary Sch. Dist. [1961]

55 Cal.2d 224, 230, ‘it may not be possible to set forth a definite rule which

would determine in every instance whether a governmental agency is liable.’

A workable definition nevertheless will be one that recognizes that ‘[m]uch of

what is done by officers and employees of the government must remain

beyond the range of judicial inquiry’ [citation]; obviously ‘it is not a tort for

government to govern’ [citation]. Courts and commentators have therefore

centered their attention on an assurance of judicial abstention in areas in

which the responsibility for basic policy decisions has been committed to

coordinate branches of government. Any wider judicial review, we believe,

would place the court in the unseemly position of determining the propriety

of decisions expressly entrusted to a coordinate branch of government.

Moreover, the potentiality of such review might even in the first instance

affect the coordinate body’s decision-making process.” (Id. at p. 793.)

The Johnson court set forth a two-part test to establish whether

discretionary immunity applies. First, the agency must show the act or

omission is discretionary. The court held the distinction between “‘planning’”

decisions and “‘operational’” decisions determines whether immunity applies.

(Johnson, supra, 69 Cal.2d at p. 794.) “It requires us to find and isolate those

areas of quasi-legislative policy-making which are sufficiently sensitive to

7

justify a blanket rule that courts will not entertain a tort action alleging that

careless conduct contributed to the governmental decision.” (Ibid.)

Second, the agency must show the employee in question “actually

reached a considered decision knowingly and deliberately encountering the

risks that give rise to plaintiff’s complaint. . . . [¶] . . . [T]o be entitled to

immunity the state must make a showing that such a policy decision,

consciously balancing risks and advantages, took place. The fact that an

employee normally engages in ‘discretionary activity’ is irrelevant if, in a

given case, the employee did not render a considered decision.” (Johnson,

supra, 69 Cal.2d at pp. 794–795, fn. 8; see Gov. Code, § 820.2 [public

employees not liable for injuries resulting from their acts and omissions that

are “the result of the exercise of the discretion vested in [them]”].)

Several decades later, in Caldwell v. Montoya (1995) 10

Cal.4th 972 (Caldwell), the California Supreme Court again addressed

agency immunity, concluding that a school district’s decision to terminate the

employment of the district superintendent “particularly satisfies the

immunity justifications set forth in Johnson.” (Id. at p. 982.) Applying the

two-part Johnson test, the Caldwell court concluded: “Johnson precludes a

finding of immunity solely on grounds that ‘the [affected] employee’s general

course of duties is “discretionary” . . .’ [citation], and requires a showing that

‘the specific conduct giving rise to the suit’ involved an actual exercise of

discretion, i.e., a ‘[conscious] balancing [of] risks and advantages’ [citation].”

(Id. at p. 983.) The court emphasized, however, that “Johnson does not

require a strictly careful, thorough, formal, or correct evaluation. Such a

standard would swallow an immunity designed to protect against claims of

carelessness, malice, bad judgment, or abuse of discretion in the formulation

of policy. [Citation.] A fair reading of the instant complaint reveals

8

allegations that the Board made an actual, conscious, and considered

collective policy decision to replace plaintiff as superintendent. The complaint

admits of no theory that the Board acted unconsciously or failed to weigh pros

and cons. On the contrary, it asserts that Board members did purposefully

employ standards they deemed relevant, but that the standards employed

were wrong and impermissible. For reasons already stated, claims of

improper evaluation cannot divest a discretionary policy decision of its

immunity.” (Id. at pp. 983–984.)

B. Application of the Johnson Test to the County’s Motion for Summary

Judgment

1. Child Foster Placements and Removal Decisions are

Discretionary

Applying the first prong of the Johnson test to the County’s

motion here, we consider whether a social worker’s decision to remove (or not

remove) a child from a foster placement is a ministerial or a discretionary act.

We conclude it is discretionary.

As the California Supreme Court recognized in B.H. v. County of

San Bernardino (2015) 62 Cal.4th 168, numerous Courts of Appeal have held

that “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 that are

incidental to the employees’ investigations.” (Id. at pp. 191–192; see

Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1381 [under

Government Code section 820.2 social workers in child welfare matters are

entitled to immunity for child removal and placement decisions, even for

“‘lousy’ decisions in which the worker abuses his or her discretion, including

decisions based on ‘woefully inadequate information’”]; Ortega v. Sacramento

9

County Dept. of Health & Human Services (2008) 161 Cal.App.4th 713, 730–

733 [social worker’s failure to gather pertinent facts before returning child to

custody of parent who then stabbed her was subject to immunity under

section 820.2 because “the collection and evaluation of information is an

integral part of ‘the exercise of the discretion’ immunized by section 820.2”];

Jacqueline T. v. Alameda County Child Protective Services (2007) 155

Cal.App.4th 456, 466 [“a social worker’s decisions relating to, as here, the

investigation of child abuse, removal of a minor, and instigation of

dependency proceedings, are discretionary decisions subject to immunity

under section 820.2”]; Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th

1450, 1466 (Becerra) [“Even if some activities in monitoring a placement

might be considered ministerial . . . the ultimate decision . . . whether to

intervene and discontinue a child’s placement, is a discretionary placement

decision”].)

We find no reason to depart from those decisions. Decisions to

remove a child from his or her original home, to return a child to his or her

parent’s custody, or to place a child with a foster family or adoptive family

are all discretionary acts. Similarly, we conclude the determination whether

to remove a child from a foster family placement is also discretionary; it

requires the same type of discretionary decisionmaking as the placement of

the child with the family in the first instance.

R.S. agrees his initial placement in the foster home was a

discretionary act but argues that “once the child has been taken into

governmental custody for purposes of foster care, decisions made in the

course of the foster care agency’s operational duties concerning the child’s

safety, care and welfare ‘implement’ a policy and thus are subject to liability

if performed negligently.” R.S. cites Elton v. County of Orange (1970)

10

3 Cal.App.3d 1053 (Elton) and Scott, supra, 27 Cal.App.4th 125, as support

for his argument. Both cases are distinguishable.

In Elton, supra, 3 Cal.App.3d 1053, the appellate court held that

“[d]ecisions made with respect to the maintenance, care or supervision of

plaintiff, as a dependent child, or in connection with her placement in a

particular home, may entail the exercise of discretion in a literal sense, but

such determinations do not achieve the level of basic policy decisions, and

thus do not, under the provisions of Government Code section 820.2, preclude

judicial inquiry into whether negligence of public employees was involved and

whether such negligence caused or contributed to plaintiff’s injuries.” (Id. at

p. 1058.) Elton has been distinguished, however, because it was decided on

demurrer, rather than at the summary judgment stage, and because it was

decided before the law was changed to require social workers to engage in

discretionary analysis of the needs of dependent children. (See Becerra,

supra, 68 Cal.App.4th at p. 1464.)

Moreover, in Ronald S. v. County of San Diego (1993) 16

Cal.App.4th 887, the same court that decided Elton later distinguished the

holding of that case: “We find Elton to be a difficult decision. Selecting and

certifying a foster home for care of dependent children seems to us to be an

activity loaded with subjective determinations and fraught with major

possibilities of an erroneous decision. It appears to us that foster home

placement, like adoption placement, constitutes an activity of a co-equal

branch of government, and that the discretionary decisions made in

connection therewith should be deemed beyond the proper scope of court

review. However, we need not (and do not) attempt a disapproval or retreat

from our court’s decision in Elton. Elton can be distinguished. [¶] The

maintenance of a child in a foster home involves an obligation of continued

11

supervision by the County. The child remains a ward of the County. Much of

what the County is obligated to do in terms of continued administration of

the child’s welfare undoubtedly constitutes simple and uncomplicated

surveillance which reasonably could be characterized as ministerial. It is

understandable, then, that a complaint which in general terms alleges

damage from negligent management and supervision of the foster home could

be deemed adequate to withstand a general demurrer.” (Ronald S. v. County

of San Diego, supra, 16 Cal.App.4th at p. 898.)

The present case differs from Elton because here R.S. alleges he

directly provided information to Voss that should have caused Voss and/or

the County to undertake a review of the propriety of R.S.’s placement. This is

markedly different from an alleged failure to perform routine checks required

as a matter of course by social workers.

Scott is similarly distinguishable. In that case, the court held a

social worker who failed to make required monthly home visits could be held

liable for negligent supervision of a foster child. The “actual delivery of public

social services, such as foster care, to abused, neglected or exploited children”

are actions governed by specific statutory or regulatory directives “which

leave the officer no choice” and are therefore not immunized by section 820.2.

(Scott, supra, 27 Cal.App.4th at pp. 143, 141.) Scott differs from our case

because the negligent act in that case—failure to make required monthly

home visits—clearly falls within the category of non-immune ministerial acts.

2. The County Failed to Show it Made a Considered Decision Not

to Remove R.S. From the Graubners’ Care

Although we have determined the trial court properly found that

a decision not to change R.S.’s foster placement is a discretionary act, that

does not end our inquiry. Under Johnson and Caldwell, we also must

12

consider whether the County made the necessary showing that Voss (or any

other County employee) actually exercised the discretion vested in them by

making a considered decision regarding R.S.’s placement with the Graubners

7

after R.S. told Voss about showering with Howard. We conclude it did not.

The County failed to provide any facts showing whether Voss (or

any other County employee) made a considered decision with respect to

maintaining R.S.’s placement in the Graubners’ home. Instead, the County’s

separate statement in support of the motion for summary judgment asserts

“[t]here no longer exists any Juvenile Court or Social Service Agency records

8

relating to [R.S.], his dependency proceedings, or foster care placement.” But

the lack of evidence to respond does not mean that the second part of the

Johnson test can be ignored. We therefore conclude the County failed to meet

its initial burden on summary judgment to shift the burden to R.S. (See

Caldwell, supra, 10 Cal.4th at p. 984 [complaint alleged school district board

“made an actual, conscious, and considered collective policy decision”];

7

At oral argument, counsel for the County argued the California

Supreme Court has called Johnson into doubt, or at least limited the second

prong of the Johnson test, citing Thompson v. County of Alameda (1980) 27

Cal.3d 741. Thompson did no such thing. Thompson did not address the

second prong of the Johnson test, much less weaken or dispense with it.

Moreover, as noted above, in Caldwell—15 years after Thompson—the

California Supreme Court reiterated that an agency seeking immunity under

Government Code section 820.2 must make “a showing that ‘the specific

conduct giving rise to the suit’ involved an actual exercise of discretion, i.e., a

‘[conscious] balancing [of] risks and advantages’ [citation].” (Caldwell, supra,

10 Cal.4th at p. 983.)

8

In its minute order granting the motion for summary judgment,

the trial court noted: “[T]here is no evidence to show what Plaintiff’s social

worker either did or failed to do in supervising Plaintiff’s foster placement

and responding to Plaintiff’s single statement regarding the shower.”

13

Christina C. v. County of Orange, supra, 220 Cal.App.4th at p. 1381

[“assuming arguendo SSA abused its discretion by acting in an arrogant or

punitive manner or with undue consideration for monitoring costs, the

immunity provided in Government Code section 820.2 expressly applies

‘whether or not such discretion is abused’”]; Ortega v. Sacramento County

Dept. of Health & Human Services, supra, 161 Cal.App.4th at p. 733 [social

worker “made a considered decision balancing risks and advantages

[although] on woefully inadequate information”]; Becerra, supra, 68

Cal.App.4th at p. 1464 [“social workers evaluated numerous subjective

factors in determining what they believed to be the appropriate placement for

Mariana”].)

We recognize that, given the length of time that passed between

the acts in question and the filing of R.S.’s complaint, it may be difficult—

perhaps impossible—to produce evidence of this element necessary to the

determination of immunity under Government Code section 820.2. But that

is a problem addressed to the Legislature, not this court. And in fact, the

issue was raised with the Legislature before the limitations period was

extended. The legislative history for Assembly Bill No. 218 (2019-2020 Reg.

Sess.), which amended Code of Civil Procedure section 340.1 to extend the

limitations period for a claim of childhood sexual assault, shows the

Legislature was well aware that the extension of the limitations period could

negatively affect agencies’ ability to defend against such cases. For example,

the Assembly Judiciary Committee’s analysis of the bill notes: “The bill is

opposed (unless amended) by the public and private school officials, insurance

associations, and joint powers associations. All of the opponents raise the

same basic concerns: it is very difficult to defend against old claims when

records and witnesses may be unavailable, insurance may no longer be

14

available, and the cost of defending these actions could be astronomical and

could prevent the impacted entities from being able to support their main

work.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 218 (2019-2020

Reg. Sess.), italics added.) In short, the Legislature has already made the

policy decision that the importance of providing redress to victims of

childhood sexual abuse outweighs the potential difficulties inherent in

defending against decades-old claims. We are not free to substitute our

judgment on that point or to depart from the California Supreme Court’s

holdings in Johnson and Caldwell.

III.

THE COUNTY FAILED TO ESTABLISH IT HAD NO LEGAL DUTY TO PROTECT R.S.

“To establish a cause of action for negligence, the plaintiff must

show that the ‘defendant had a duty to use due care, that he breached that

duty, and that the breach was the proximate or legal cause of the resulting

injury.’ [Citation.] Recovery for negligence depends as a threshold matter on

the existence of a legal duty of care.” (Brown, supra, 11 Cal.5th at p. 213.)

The existence and scope of a duty is a question of law for the court. (Delgado

v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237.)

A. The County Had a Special Relationship with R.S.

Generally, a defendant does not owe a legal duty to protect a

plaintiff against the conduct of a third party. (Delgado v. Trax Bar & Grill,

supra, 36 Cal.4th at p. 235.) In Brown, the California Supreme Court

“clarif[ied] that whether to recognize a duty to protect is governed by a two-

step inquiry. First, the court must determine whether there exists a special

relationship between the parties or some other set of circumstances giving

rise to an affirmative duty to protect. Second, if so, the court must consult the

factors described in Rowland to determine whether relevant policy

15

considerations counsel limiting that duty.” (Brown, supra, 11 Cal.5th at

p. 209.)

“A special relationship between the defendant and the victim is

one that ‘gives the victim a right to expect’ protection from the defendant . . . .

[Citation.] Relationships between parents and children, colleges and

students, employers and employees, common carriers and passengers, and

innkeepers and guests, are all examples of special relationships that give rise

to an affirmative duty to protect. [Citations.] The existence of such a special

relationship puts the defendant in a unique position to protect the plaintiff

from injury. The law requires the defendant to use this position accordingly.”

(Brown, supra, 11 Cal.5th at p. 216.) “‘California courts have frequently

recognized special relationships between children and their adult caregivers

that give rise to a duty to prevent harms caused by the intentional or

criminal conduct of third parties.’” (Doe v. United States Youth Soccer Assn.,

Inc. (2017) 8 Cal.App.5th 1118, 1129.)

As the trial court noted, there is no serious dispute in this case

that a special relationship existed between the County and R.S., and that the

County therefore owed R.S. a duty of care to protect him from harm by third

parties. We agree that a special relationship existed between R.S. and the

County, which removed him from his home and placed him in a foster home

for six or seven years. That special relationship gave rise to a legal duty to

protect R.S. from injuries caused by the criminal conduct of the foster father,

a third party. (Brown, supra, 11 Cal.5th at p. 209.)

B. The Rowland Factors

We next consider whether the factors set forth in Rowland

require us to create an exception to that duty. “A departure from this

fundamental principle [that a person is liable for injuries caused by his

16

failure to exercise reasonable care in the circumstances] involves the

balancing of a number of considerations; the major ones are the foreseeability

of harm to the plaintiff, the degree of certainty that the plaintiff suffered

injury, the closeness of the connection between the defendant’s conduct and

the injury suffered, the moral blame attached to the defendant’s conduct, the

policy of preventing future harm, the extent of the burden to the defendant

and consequences to the community of imposing a duty to exercise care with

resulting liability for breach, and the availability, cost, and prevalence of

insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at pp. 112–113.)

As the party moving for summary judgment, the County bears the burden of

showing the Rowland factors support an exception to the duty of care. (Doe v.

Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 675

(Los Angeles).) We conclude it did not bear that burden.

1. Foreseeability

The only factor the County addressed on summary judgment—

and therefore the only factor the trial court considered—was foreseeability.

The court concluded R.S.’s statement to Voss about showering with his foster

father was not sufficient to establish the County had “actual knowledge that

would make the conduct by [R.S.]’s foster father foreseeable.” The court thus

found the County had met its initial burden to show it had no legal duty to

R.S., and R.S. failed to produce any admissible evidence to create a triable

issue of material fact.

The trial court’s analysis was incorrect. As the California

Supreme Court explained in Regents of University of California v. Superior

Court (2018) 4 Cal.5th 607 (Regents): “In examining foreseeability, ‘the

court’s task . . . “is not to decide whether a particular plaintiff’s injury was

reasonably foreseeable in light of a particular defendant’s conduct, but rather

17

to evaluate more generally whether the category of negligent conduct at issue

is sufficiently likely to result in the kind of harm experienced that liability

may appropriately be imposed.”’” (Id. at p. 629.) Neither the County nor R.S.

addressed whether the category of negligent conduct by the County alleged

here (failure to investigate child molestation by a foster parent when

presented with a comment by a foster child raising the specter of potential

sexual abuse) is sufficiently likely to result in the kind of harm R.S.

experienced (continued sexual molestation) that liability may appropriately

be imposed on the County. (See Los Angeles, supra, 70 Cal.App.5th at p. 676

[evidence of Archdiocese’s awareness by the late 1980’s of accusations of

sexual abuse by priests created reasonable foreseeability that minors

attending catechism classes might be molested by a priest, even without

knowledge of a particular priest’s prior sexual misconduct]; Doe v. United

States Youth Soccer Assn., Inc., supra, 8 Cal.App.5th at p. 1133 [awareness of

incidents of physical and sexual abuse within organization, and development

of program to make players aware pedophiles were drawn to youth activities,

made sexual abuse of players by their coaches reasonably foreseeable].)

The County cites numerous pre-Regents cases for the proposition

that it must have had actual knowledge of Howard’s criminal conduct to

justify imposing a duty to protect R.S. But the California Supreme Court

rejected that very argument: “[C]ase-specific foreseeability questions are

relevant in determining the applicable standard of care or breach in a

particular case. They do not, however, inform our threshold determination

that a duty exists.” (Regents, supra, 4 Cal.5th at p. 630.) The cases cited by

the County analyze the question of duty in the context of foreseeability of the

harm caused by a particular tortfeasor. (See J.L. v. Children’s Institute, Inc.

(2009) 177 Cal.App.4th 388, 391, 393, 396; Margaret W. v. Kelley R. (2006)

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139 Cal.App.4th 141, 152; Romero v. Superior Court (2001) 89 Cal.App.4th

1068, 1080–1081, 1089; Chaney v. Superior Court (1995) 39 Cal.App.4th 152,

157.) We believe, however, that under Rowland the court must consider

whether it was foreseeable that the category of negligent conduct was likely

to result in the type of harm experienced. When analyzed in this way, we

conclude it is sufficiently foreseeable that a failure by the County to take

action (at a minimum, in the form of further inquiry or investigation) when a

foster child makes comments to a social worker that are suggestive of sexual

abuse is sufficiently likely to result in the harm R.S. experienced (continued

sexual abuse) to make it appropriate to impose a duty on the County to

protect against the harm R.S. suffered.

2. Other Rowland Factors

Although the trial court did not address the remaining Rowland

factors, we review them to decide whether we can say, as a matter of law,

they require creating an exception to the County’s duty to R.S.

Certainty. “The second factor, ‘the degree of certainty that the

plaintiff suffered injury’ [citation], may come into play when the plaintiff's

claim involves intangible harm, such as emotional distress.” (Regents, supra,

4 Cal.5th at p. 630.) R.S. alleged he suffered physical, psychological, and

emotional injuries due to sexual abuse by Howard. “The significant emotional

trauma caused by childhood sexual abuse . . . is well documented . . . .”

(Juarez v. Boy Scouts of America, Inc. 81 Cal.App.4th 377, 405.)

Connection between defendant’s conduct and plaintiff’s injury.

“Generally speaking, where the injury suffered is connected only distantly

and indirectly to the defendant’s negligent act, the risk of that type of injury

from the category of negligent conduct at issue is likely to be deemed

unforeseeable. Conversely, a closely connected type of injury is likely to be

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deemed foreseeable.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764,

779.) R.S. alleged (among other things) the County failed to protect him from

sexual abuse, failed to properly investigate whether he was safe in his foster

care placement, failed to establish and/or implement policies and procedures

to protect children in foster care from sexual abuse, failed to adequately

supervise and monitor him, and failed to adequately hire and train

employees, including case workers. Howard’s conduct was the immediate

cause of R.S.’s injuries, but “the existence of an intervening act does not

necessarily attenuate a defendant’s negligence. Rather, ‘the touchstone of the

analysis is the foreseeability of that intervening conduct.’” (Regents, supra,

4 Cal.5th at p. 631.) As noted above, the County’s motion for summary

judgment did not address foreseeability under the proper standard.

Moreover, no evidence was presented to the trial court regarding the general

foreseeability of sexual abuse of children in foster care and none appears in

the appellate record.

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Moral blame. Moral blame may be considered in “‘instances

where the plaintiffs are particularly powerless or unsophisticated compared

to the defendants or where the defendants exercised greater control over the

risks at issue.’” (Regents, supra, 4 Cal.5th at p. 631.) Minors in the foster care

system, especially at R.S.’s then-tender age, are unquestionably less powerful

and sophisticated compared to the social services agency that removed them

from their parents’ custody and placed them with a foster family. R.S. had no

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The remaining factors are public policy factors. “‘A duty of care

will not be held to exist even as to foreseeable injuries . . . where the social

utility of the activity concerned is so great, and avoidance of the injuries so

burdensome to society, as to outweigh the compensatory and cost-

internalization values of negligence liability.’” (Regents, supra, 4 Cal.5th at

p. 631.)

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ability to remove himself from his abuser; the County had that ability but did

not use or exercise it.

Moral blame should not be assigned when the defendant did not

know or have reason to know that a particular individual would sexually

abuse the plaintiff. (Doe v. United States Youth Soccer Assn., Inc., supra,

8 Cal.App.5th at p. 1137 [no moral blame attributed to a soccer league for

failing to conduct criminal background checks on prospective coaches where

there was no evidence the league knew a particular coach would sexually

abuse the plaintiff].) Nevertheless, at the summary judgment stage, some

moral blame must be assigned to the County based on R.S.’s statement to the

social worker about the “yucky” showers with his father, and the County’s

apparent failure to respond. (See Los Angeles, supra 70 Cal.App.5th at p. 680

[attributing moral blame to archdiocese because it took minimal action to

prevent sexual abuse of children, despite “significant disparity in knowledge,

sophistication, and control”].)

The policy of preventing future harm. The societal goal of

safeguarding youth from sexual abuse weighs strongly in favor of imposing a

duty on the County to protect children in foster care. (See Los Angeles, supra,

70 Cal.App.5th at pp. 680–681.) Recognizing a duty on the part of the County

serves the policy of preventing future harm.

Burden. We also consider the burden that recognizing a tort duty

would impose on the defendant and the community. (Regents, supra,

4 Cal.5th at p. 633.) This burden is analyzed as of the time the duty was

allegedly owed to the plaintiff. (Kesner v. Superior Court (2016) 1 Cal.5th

1132, 1150.) Generally, the adoption of policies that protect children from

sexual abuse do not impose a substantial burden on an agency, especially

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when such policies have been enacted before the complaint is filed. (Los

Angeles, supra, 70 Cal.App.5th at pp. 681–682.)

Many of the cases applying the Rowland factors do so in the

context of organizations in which parents have voluntarily placed their

children in the care or control of someone else. In the case of a child in the

foster care system, however, the participation of the child is not voluntary.

Generally, the County has taken the child away from the custodial parent or

an emergency has arisen causing the County to step in. The County selects

the home in which the child will be placed. The County is the only

organization doing this work, and the parent and child have no choice not to

participate. Under such circumstances, it is reasonable to expect the County

to bear a burden higher than those imposed on organizations where

participation is voluntary. (See Los Angeles, supra, 70 Cal.App.5th at p. 682.)

Insurance. The final Rowland factor is the availability of

insurance for the risk involved. The record contains no information about the

County’s ability to obtain insurance, or to self-insure, for cases such as R.S.’s.

In sum, R.S. was in a special relationship with the County, and

the County had a duty to act reasonably to protect R.S. from being harmed by

the criminal conduct of third parties. Based on the evidence offered in

connection with the motion for summary judgment, the County failed to

establish the Rowland factors support an exception to imposing a duty on the

County to act with reasonable care to prevent the sexual abuse of minors in

its custody when those minors are placed in foster homes. The trial court

erred by granting summary judgment on the ground the County owed no

duty to R.S.

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IV.

THE COUNTY FAILED TO ESTABLISH THERE WAS NO BREACH OF THE DUTY

OWED TO R.S.

Having found the County owed no duty to R.S., the trial court did

not address whether the County breached any such duty. Although breach

had been alleged in the complaint, it was addressed in the motion for

summary judgment in a cursory manner based on the following undisputed

material facts:

“Plaintiff recalls telling his social worker, Barbara Voss, at

approximately 9-years-old (1971), that ‘I feel really weird taking a shower

with dad,’ and he remembers saying ‘it was yucky.’ This is the only incident

he alleges that he reported the abuse while residing in the Graubner foster

home.”

“Plaintiff did not tell Barbara Voss that Howard Graubner

sexually abused him or touched his genitals, and did not describe any conduct

that consists of sexual abuse.”

“There no longer exists any Juvenile Court or Social Service

Agency records relating to Plaintiff, his dependency proceedings, or foster

care placement.”

“Plaintiff was already out of the Graubner foster home in 1986

when the County of Orange/Orange County Social Services Agency first

became aware of and investigated allegations that Howard Graubner had

sexually abused his foster/adopted children.”

This showing is insufficient to shift the burden to R.S. to prove a

triable issue of material fact. Even if the County had shifted the burden to

R.S., triable issues as to breach still exist. The undisputed material facts

showed R.S. complained to the social worker about feeling “weird” and

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“yucky” about showering with his foster father. Given Howard’s later written

admissions, it is undisputed that R.S. was sexually abused by the foster

father. The County offered no evidence, written or otherwise, about what the

social worker did or did not do in response to R.S.’s complaint. This is enough

to defeat summary judgment on the issue of breach.

DISPOSITION

The judgment is reversed. Appellant to recover costs on appeal.

GOODING, J.

WE CONCUR:

MOTOIKE, ACTING P. J.

DELANEY, J.

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