Opinion

A.L. v. Harbor Developmental Disabilities Foundation

Court
California Court of Appeal
Filed
May 30, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 16.2%

The opinion

Filed 5/30/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

A.L., an Incompetent Person, B322729

etc.,

(Los Angeles County

Plaintiff and Appellant, Super. Ct. No.

19STCV05630)

v.

HARBOR DEVELOPMENTAL

DISABILITIES

FOUNDATION,

Defendant and

Respondent.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Terry A. Green, Judge. Affirmed.

Greene Broillet & Wheeler, Scott H. Carr, Ivan Puchalt;

Law Offices of Jacob Emrani, Jacob Emrani; Esner, Chang, Boyer

& Murphy, Holly N. Boyer and Shea S. Murphy for Plaintiff and

Appellant.

Horvitz & Levy, Andrea M. Gauthier, Scott P. Dixler;

Beach Law Group, Thomas E. Beach, Darryl C. Hottinger and

Eligio J. Luevanos for Defendant and Respondent.

******

Through the Lanterman Developmental Disabilities

Services Act (the Lanterman Act or the Act) (Welf. & Inst. Code, §

4500 et seq.),1 the State of California has undertaken the duty to

provide developmentally disabled persons with appropriately

tailored services and support. The Act relies upon a network of

private, nonprofit entities called “regional centers” (§ 4620),

whose job it is—not to provide the services and support—but

instead to assess which services and support each

developmentally disabled person (whom the Act calls a

“consumer”) needs, to contract with direct service providers

(whom the Act calls “vendors”) to provide those services and

support, and to thereafter engage in “limited monitoring” of those

contracts (§§ 4642, 4643, 4640.6, subd. (a), 4647, 4648, 4648.1,

4742, 4743; Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 490

(Morohoshi)). In this case, a female consumer was raped by the

employee of a transportation vendor while being transported to

an education program. The consumer sued the employee, the

vendor, and the regional center. Her lawsuit presents the

following question: Does a regional center have a duty to protect

a consumer against sexual assault by a vendor’s employees

premised on the center’s failure to sufficiently monitor the vendor

and its employees? We conclude that the answer is “no” except

1 All further statutory references are to the Welfare and

Institutions Code unless otherwise indicated.

2

when a regional center has actual knowledge of the vendor

employee’s propensity to engage in such conduct. Because it is

undisputed here that the regional center had no such knowledge,

the duty to protect was not triggered in this case, and we

accordingly affirm the trial court’s grant of summary judgment

for the regional center.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The regional center and its transportation

vendor

Harbor Developmental Disabilities Foundation (the

Regional Center) is a nonprofit entity that has functioned as a

regional center under the Act for over three decades.

Round Trip Transportation, Inc. (Round Trip), is a private

company that transports developmentally disabled persons

between their homes and the services they need. In 2018, Round

Trip’s four central office employees oversaw 70 or 80 drivers who

drove its fleet of GPS-tracked buses, each of which could

accommodate 15 passengers and transported 700 to 800

consumers of various regional centers each day. Round Trip

hired Ezequiel Ocampo (Ocampo) as a driver in 2013; Round Trip

ran a criminal background check on Ocampo when he was

initially hired and every year thereafter; all came back clean.

In July 2015, the Regional Center entered into a three-year

contract with Round Trip to provide transportation services for

its consumers. The contract designated Round Trip as an

“independent contractor,” but obligated Round Trip to “employ,

train and retain the required number of drivers, aides,

dispatchers and administrative personnel necessary to provide

the required levels of service,” to screen and conduct background

3

checks on its employees, to conduct annual reviews of its drivers’

performance, and to provide a minimum of 40 hours of training to

its employees, including on the topics of the “signs of abuse and

neglect,” “the process for reporting [such abuse and neglect],” and

“the consequences of failing to follow the law.” Under the

contract, the Regional Center reserved the right to monitor

Round Trip’s “service delivery” on a “periodic basis” (by observing

its buses and going on ride-alongs) as well as the right to inspect

the service logs and related records the contract obligated Round

Trip to maintain. The contract also specified that Round Trip

was in default if any consumer was “subject[ed] to physical or

psychological abuse” by any of its employees. This contract

adhered to the state regulations specifying the content of vendor

contracts under the Act. (Cal. Code Regs., tit. 17, § 58524, subd.

(c).)

A Regional Center employee inspected Round Trip’s

operations when Round Trip “first came on as a provider,”

including going on a ride-along. The Regional Center thereafter

held trainings for the employees of Round Trip (and other

vendors) on “disability awareness” and how to report any

incidents. The Regional Center maintained monthly contact with

Round Trip, but did not conduct any further in-person

inspections. Instead, the Regional Center’s monitoring was

“reactive” insofar as it would respond to “complaints” from the

consumers’ caregivers. Between June 2015 and August 2018, the

Regional Center received dozens of complaints regarding Round

Trip: Nearly all dealt with late pick-ups or drop-offs or other

4

issues related to the transportation itself; there were no

complaints of inappropriate touching by Round Trip’s employees.2

The Regional Center entered into a one-year extension of

its contract with Round Trip in June 2018.

B. The consumer

In 2018, A.L. was an adult living with mental and physical

disabilities she had since birth. A.L. has been a consumer of the

Regional Center since she was an infant. In 2018, she was living

with her mother but attending an educational day program at

Easter Seals every weekday; she was transported to and from the

program by Round Trip.

C. The rape

In May or June 2018, Ocampo raped and impregnated A.L.

while transporting her. Ocampo pled no contest to the felony of

raping an incompetent person (Pen. Code, § 261, subd. (a)(1)),

and was sentenced to six years in state prison.

It is undisputed that the Regional Center had no actual

knowledge of Ocampo’s proclivities to engage in such conduct.

Following his conviction, Ocampo denied ever receiving formal

2 Five of the complaints during that period dealt with

consumers causing physical injury to one another or to

themselves, and one dealt with a driver pulling back the

waistband of a consumer’s pants to show an education program

vendor that the consumer had defecated in his pants when the

program vendor refused to believe the driver. After the incident

at issue in this case, the Regional Center received a February

2020 complaint that a consumer required three stitches after a

Round Trip bus driver observed an abrasion on his head and a

March 2020 complaint from a woman who said she had heard

from one of her friends that the friend’s relative had been groped

by a Round Trip bus driver.

5

training telling him not to engage in the sexual abuse of

consumers, and denied understanding nearly anything in the

written paperwork provided to him by Round Trip and anything

taught at any training because he mostly understood only

Spanish, although Ocampo admitted that he was told to “be

careful to avoid . . . situations” of sexual abuse and not to hug

passengers, and Ocampo’s employment forms indicated that he

did receive Round Trip’s employee handbook and company

policies.

After the rape was reported, the Regional Center thereafter

conducted an extensive investigation of the incident and Round

Trip. In a November 2018 report, the Regional Center concluded

that Round Trip did not have a “formal system” of logging

complaints, that it had an inadequate tracking system for

monitoring irregularities with drivers and the quality of its

services, that it needed a formal system for notifying consumers’

caregivers of changes in scheduling, that it needed more staff in

its central office, and that it needed to ensure its employees were

trained on client abuse and neglect upon hiring and annually

thereafter.

II. Procedural Background

A. Operative pleading

In February 2019, A.L., through her mother acting as her

guardian ad litem, sued Round Trip and Ocampo. In the

operative second amended complaint, A.L. also sued the Regional

Center for negligence.3 The complaint alleged that the Regional

3 In the operative complaint, A.L. also sued Round Trip and

Ocampo for (1) battery, (2) negligence, (3) violations of the Tom

Bane Civil Rights Act (Civ. Code, §§ 52.1, 52), and (4) violations

of the Ralph Civil Rights Act of 1976 (id., § 51.7).

6

Center (1) negligently hired Round Trip as a vendor without

doing a proper investigation; and (2) negligently monitored

Round Trip’s compliance with its vendor contract because the

Regional Center did not discover, until after the rape, that Round

Trip’s operations had the shortcomings identified in the

November 2018 report. The complaint further alleged that this

inaction “direct[ly] and proximate[ly]” caused the rape.

B. Summary judgment

In February 2021, the Regional Center filed a motion for

summary judgment on the ground that it owed A.L. no duty to

prevent sexual assault by a vendor’s employee.4 After a full

round of briefing and a hearing, the trial court granted the

motion.

C. Motion for new trial

A.L. thereafter filed a motion for new trial asking the trial

court to reconsider its grant of summary judgment in light of our

Supreme Court’s decision in Brown v. USA Taekwondo (2021) 11

Cal.5th 204 (Brown). After a full round of briefing and a hearing,

the trial court denied the motion for new trial and allowed the

summary judgment to stand.5 The court reasoned that it had

“real doubt” whether the Regional Center had a “special

relationship” with A.L., and further reasoned that public policy

considerations militated against recognizing a duty to protect, at

4 By this time, the trial court had overruled a demurrer on

the same ground.

5 The trial court had initially granted summary judgment for

Round Trip, but granted plaintiff’s motion for a new trial as to

that judgment.

7

least where a regional center “has no way of knowing that [a

vendor’s] employee . . . is likely to [sexually] abuse a [consumer].”

D. Appeal

A.L. filed this timely appeal.

DISCUSSION

A.L. argues that the trial court erred in granting summary

judgment.

“Summary judgment is appropriate only ‘where no triable

issue of material fact exists and the moving party is entitled to

judgment as a matter of law.’” (Regents of University of

California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents);

see Code Civ. Proc., § 437c, subd. (c).) To prevail on such a

motion, the moving party—here, the Regional Center—must

show that the plaintiff “has not established, and reasonably

cannot be expected to establish, one or more elements of the

cause of action in question.” (Patterson v. Domino’s Pizza, LLC

(2014) 60 Cal.4th 474, 500; Code Civ. Proc., § 437c, subd. (o)(1).)

In evaluating whether the Regional Center made this showing,

we liberally construe the evidence before the trial court in

support of the party opposing summary judgment—here, A.L.—

and resolve all doubts concerning the evidence in support of that

party. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) We

independently review the grant of summary judgment as well as

any subsidiary legal questions, such as whether a duty of care or

special relationship exists. (California Medical Assn. v. Aetna

Health of California Inc. (2023) 14 Cal.5th 1075, 1087 [summary

judgment]; Brown, supra, 11 Cal.5th at p. 213 [duty of care];

Regents, at p. 620 [special relationship].) Because our review is

de novo, we are concerned with the correctness of the trial court’s

result, not its reasoning. (Burgueno v. Regents of University of

8

California (2015) 243 Cal.App.4th 1052, 1075; People v. Chism

(2014) 58 Cal.4th 1266, 1295, fn. 12.)6

I. The Lanterman Act

“Pursuant to the Lanterman Act, our state has undertaken

the duty to provide ‘[a]n array of services and supports’ to

‘person[s] with developmental disabilities.’ (§ 4501; see also §

4512, subd. (a)(1) [defining ‘developmental disability’];

Association for Retarded Citizens v. Department of Developmental

Services (1985) 38 Cal.3d 384, 388-389.) The Act labels those

persons ‘consumers.’ (E.g., see § 4640.7 et seq.; Cal. Code Regs.,

tit. 17, § 56002, subd. (a)(5).) [¶] The [State] Department [of

Developmental Services] oversees the provision of services and

support to those consumers. (§ 4416.) However, because those

services and support ‘cannot be satisfactorily provided by state

agencies,’ the Act requires the [State] Department [of

Developmental Services] to do so by contracting with ‘regional

centers,’ which are ‘private nonprofit community agencies’ that

operate as ‘fixed points of contact in the community’ to diagnose,

counsel and coordinate the acquisition of the necessary services

and support. (§§ 4620, 4640.7, subd. (a); see §§ 4501, 4621,

4640.6, subd. (a); Cal. Code Regs., tit. 17, § 56002, subd. (a)(36);

Morohoshi[, supra], 34 Cal.4th [at pp.] 486-488; In re Williams

(2014) 228 Cal.App.4th 989, 996, fn. 2.)” (Shalghoun v. North Los

Angeles County Regional Center, Inc. (2024) 99 Cal.App.5th 929,

941 (Shalghoun).)

6 As a result, we will not address the parties’ arguments

regarding alleged errors in the trial court’s reasoning.

9

More specifically, regional centers are tasked with the

following:

● Diagnosis and program development. Once a regional

center evaluates a consumer and determines that they suffer

from a “developmental disability,” the center must assess their

needs and formulate an “individual program plan” that

delineates, as pertinent here, the needed “services and supports.”

(§§ 4642, subd. (a), 4643, subd. (b), 4646, 4512, subd. (a), 4646.5,

subd. (a); Morohoshi, supra, 34 Cal.4th at pp. 487-488; Cal. Code

Regs., tit. 17, § 56022, subd. (b).)

● Coordinating the provision of services and support. It

is not the job of regional centers to directly provide any services

or support; instead, their job is to coordinate the services and

support a consumer’s needs by contracting with “direct service

providers,” who are also called vendors. (§§ 4648, 4640.6, subd.

(a); Morohoshi, supra, 34 Cal.4th at pp. 488, 489 [“the

responsibility of a regional center is to ‘secure,’ not provide,

care”].) The array of possible services and support is

comprehensive and vast;7 among the 48 different types of services

7 Those services and support include, but are not limited, to

“diagnosis, evaluation, treatment, personal care, daycare,

domiciliary care, special living arrangements, physical,

occupational, and speech therapy, training, education, supported

and sheltered employment, mental health services, recreation,

counseling of the [consumer] and of the [consumer’s] family,

protective and other social and sociolegal services, information

and referral services, follow-along services, adaptive equipment

and supplies, advocacy assistance, including self-advocacy

training, facilitation and peer advocates, assessment, assistance

in locating a home, childcare, behavior training and behavior

modification programs, camping, community integration services,

community support, daily living skills training, emergency and

10

and support are “transportation services necessary to ensure

delivery of services to” consumers. (§ 4512, subd. (b).) Vendors

may include the consumer’s relatives. (E.g., Cal. Code Regs., tit.

17, § 54327, subd. (a).)

● Monitoring the provision of services and support.

Regional centers are tasked with monitoring whether the services

and support provided by the vendors are in accord with (1) the

consumer’s individual program plan (§§ 4742, 4743; Cal. Code

Regs., tit. 17, § 56047, subd. (a)), and (2) the terms of the vendor

contract and applicable state law and regulations (e.g., Williams

v. California (C.D.Cal. 2012) 990 F.Supp.2d 1009, 1014). Given

the vast number of consumers they serve and the vast number of

services and support coordinated for each consumer, “regional

centers are not intended to monitor the care provided by

[vendors] on [a] day-by-day” or “hour-by-hour” basis; instead,

their “monitoring responsibilities,” while “important,” are

necessarily “limited.” (Morohoshi, supra, 34 Cal.4th at pp. 488-

489, 490.)

II. Analysis of Tort Law

A.L.’s sole claim against the Regional Center is grounded in

negligence. To prevail on a negligence claim, a plaintiff must

crisis intervention, facilitating circles of support, habilitation,

homemaker services, infant stimulation programs, paid

roommates, paid neighbors, respite, short-term out-of-home care,

social skills training, specialized medical and dental care,

telehealth services and supports, . . . supported living

arrangements, technical and financial assistance, travel training,

training for parents of [consumers], training for [consumers who

are] parents . . . , vouchers, and transportation services necessary

to ensure delivery of services to [consumers].” (§ 4512, subd. (b),

italics added.)

11

establish, as a “threshold matter,” that she is owed a “legal duty

of care.” (Brown, supra, 11 Cal.5th at pp. 213, 209.) Whether a

defendant owes a plaintiff a legal duty of care actionable in

negligence is, ultimately, a “question of public policy.” (Regents,

supra, 4 Cal.5th at pp. 627-628; see Kuciemba v. Victory

Woodworks, Inc. (2023) 14 Cal.5th 993, 1016 (Kuciemba); Kesner

v. Superior Court (2016) 1 Cal.5th 1132, 1143 (Kesner).) In

Brown, our Supreme Court clarified that this question of public

policy is really two questions—namely, “(1) Does the defendant

owe the plaintiff a legal duty of care under traditional principles

of tort law, and if so, (2) do the relevant public policy

considerations set forth in Rowland v. Christian (1968) 69 Cal.2d

108 (Rowland) nevertheless favor ‘limiting that duty’?”

(Shalghoun, supra, 99 Cal.App.5th at p. 944; Brown, at p. 209.)

In the operative complaint, A.L. alleges that the Regional

Center owed her a duty to prevent Ocampo’s rape and that it

breached that duty by its initial failure to properly vet Round

Trip as a vendor and its subsequent failure to adequately monitor

Round Trip’s provision of transportation services. These

allegations frame our inquiry into the legal duty of care.

(California-American Water Co. v. Marina Coast Water Dist.

(2022) 86 Cal.App.5th 1272, 1306; B.L.M. v. Sabo & Deitsch

(1997) 55 Cal.App.4th 823, 830.)

A. Duty under traditional principles of tort law

Under the traditional principles of tort law, a person

generally has no legal duty to protect others from a third party’s

conduct; consequently, that person’s inaction (or nonfeasance)

does not give rise to tort liability. (Regents, supra, 4 Cal.5th at

pp. 619, 627; Williams v. State of California (1983) 34 Cal.3d 18,

23; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49.)

12

But this general, no-duty-to-protect rule has an exception

pertinent to this case: If the party who is sued (the defendant)

has a “special relationship” with the party who is injured (the

plaintiff), that relationship may give rise to a duty to protect the

plaintiff from the harm inflicted by third parties if the defendant

has “superior control over the means of protect[ing]” the plaintiff

and the plaintiff concomitantly “depend[s]” upon that protection.

(Regents, supra, 4 Cal.5th at pp. 619-621; Shalghoun, supra, 99

Cal.App.5th at pp. 446, 494.)

Because regional centers are tasked with coordinating

vendors to provide consumers services and support as well as

engaging in “limited” monitoring to ensure compliance with the

consumer’s plan and the vendor’s contracts, and because these

statutorily imposed tasks ostensibly give regional centers at least

some measure of control over the means of protecting the

consumers, we conclude that regional centers have a special

relationship with their consumers that gives rise to a duty to

protect consumers from sexual abuse.8 (Accord, Shalghoun,

supra, 99 Cal.App.5th at p. 951 [“assum[ing]” “a duty to protect”

that “runs” from regional centers “to the consumer[s]”].)

B. Public policy considerations that may counsel

in favor of limiting the duty

Notwithstanding our conclusion that traditional principles

of tort law provide that regional centers have a duty to protect

8 The conclusion is the same even if we view a regional

center’s coordination of services and support as misfeasance, for

an affirmative act that places a consumer in “peril” also gives rise

to a duty to protect. (Jane Doe No. 1 v. Uber Technologies, Inc.

(2022) 79 Cal.App.5th 410, 424-425; McHenry v. Asylum

Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 485.)

13

consumers from sexual abuse, “courts have the power and

obligation to examine whether considerations of public policy

warrant limiting that duty.” (Shalghoun, supra, 99 Cal.App.5th

at p. 946; Brown, supra, 11 Cal.5th at p. 217; Regents, supra, 4

Cal.5th at pp. 628-629.) “This public policy analysis is ‘forward-

looking’ and to be conducted on a general, categorical basis

(Kesner, supra, 1 Cal.5th at p. 1152; see Kuciemba, supra, 14

Cal.5th at p. 1022); in effect, we ask: Does public policy warrant

curtailing liability in a particular category of cases in the future?”

(Shalghoun, at p. 946.)

1. The Rowland factors

In Rowland, our Supreme Court outlined the pertinent

public policy considerations. They fall into two categories.

The first category examines the foreseeability of the

plaintiff’s injury. Rowland identifies three foreseeability factors:

(1) 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”’”; (2) the degree of

certainty that the plaintiff suffered injury; and (3) the closeness

of the connection “‘between the defendant’s conduct and the

injury suffered.’” (Regents, supra, 4 Cal.5th at pp. 629-630.)

Although these foreseeability factors are “‘[t]he most

important’” (Regents, supra, 4 Cal.5th at p. 629), foreseeability is

not dispositive of the policy analysis and may be outweighed by

the second category of Rowland factors (Kesner, supra, 1 Cal.5th

at p. 1149). Those factors ask whether “‘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.’” (Kesner, at p.

1150.) In other words, they ask whether recognizing the duty

14

“would deter socially beneficial behavior.” (Kuciemba, supra, 14

Cal.5th at p. 1028.) Rowland identifies four of these

countervailing policy considerations: (1) the moral blame

attaching to the defendant’s conduct (Kuciemba, at p. 1025); (2)

whether liability will “‘prevent[] future harm,’” which looks to

“both the positive and the negative societal consequences of

recognizing a tort duty” “in terms of how the imposition of

liability is likely to play out” (id. at pp. 1021-1022, 1026;

Shalghoun, supra, 99 Cal.App.5th at p. 947; see Castaneda v.

Olsher (2007) 41 Cal.4th 1205, 1217); (3) the “‘extent of the

burden to the defendant and consequences to the community of

imposing a duty . . . with resulting liability for breach’” (Southern

California Gas Leak Cases (2019) 7 Cal.5th 391, 398), including

whether recognizing tort liability “would impose enormous and

unprecedented financial burdens” on likely defendants

(Kuciemba, at pp. 1027, 1021-1022); and (4) the availability of

insurance (id. at pp. 1021-1022).

2. Applying the Rowland factors to the duty to

protect based on a failure to vet and monitor a vendor

With the Rowland factors and the operative complaint in

mind, the question then becomes: Does the duty owed by

regional centers to protect consumers from sexual assault—

premised upon their statutory duties to coordinate services and

support provided by vendors and thereafter to monitor

compliance with those vendors’ contracts—render the regional

centers liable in tort to consumers for sexual assaults committed

by any vendors’ employees, or do public policy considerations

warrant some limitation of that duty?

Rowland’s foreseeability considerations counsel in favor of

limiting this duty to protect. Even if we assume that all

15

developmentally disabled persons are vulnerable and it is

therefore more likely that they may be sexually assaulted (the

first factor),9 and if we acknowledge the absolute certainty that

developmentally disabled persons are injured if they are sexually

assaulted (the second factor), the connection between a regional

center’s failure to sufficiently vet and sufficiently monitor

vendors on the one hand, and the sexual assault of consumers by

an employee of a vendor on the other, is not close. Regional

centers do not employ the vendors’ employees; the vendors do.

(Cf. Roman Catholic Archbishop, supra, 70 Cal.App.5th at pp.

672-673 [church employed priests who molested children];

Lawndale, supra, 72 Cal.App.5th at p. 132 [school employed

janitor who molested children]; Youth Soccer, supra, 8

Cal.App.5th at pp. 1138-1139 [soccer organization specified how

volunteers would be trained and supervised].) Regional centers

9 Although inadequate oversight of individuals entrusted

with children has generally been viewed as sufficiently likely to

result in the sexual abuse of children (e.g., Doe v. Roman Catholic

Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 664-665,

676 (Roman Catholic Archbishop); Doe v. Lawndale Elementary

School Dist. (2021) 72 Cal.App.5th 113, 132 (Lawndale); Doe v.

United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118,

1135 (Youth Soccer); Juarez v. Boy Scouts of America, Inc. (2000)

81 Cal.App.4th 377, 398, 404, overruled on other grounds by

Brown, supra, 11 Cal.5th 204), and although developmentally

disabled adults may be to some extent analogous to children in

terms of being more vulnerable to abuse than adults without

such disabilities, developmentally disabled adults possess a broad

range of cognitive abilities, and the record in this case contains

no evidence supporting the proposition that developmentally

disabled adults as a population are as likely as children to be

sexually assaulted while in the care of others.

16

do not own or control the vendors’ premises; the vendors do.

(Colonial Van & Storage, Inc. v. Superior Court (2022) 76

Cal.App.5th 487, 498 [“California courts have declined to impose

a duty to protect for tortious or criminal harm committed by third

parties on property that defendants . . . did not actually own,

possess, or control”]; cf. Roman Catholic Archbishop, at pp. 672-

673 [molestation occurred on church property]; Lawndale, at p.

135 [molestation occurred on school property]; Jane IL Doe v.

Brightstar Residential Inc. (2022) 76 Cal.App.5th 171, 173-183

[molestation occurred on employer’s property]; M.W. v. Panama

Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519-

520 [sexual assault of a “mentally retarded student” by a

“troubled” student occurred on school grounds].) This is no doubt

why A.L. frankly acknowledges that regional centers are “once

removed.” The limited access and control regional centers have

over the vendors with whom they contract—a relationship that is

governed by statute and regulation—make it unlikely that

additional vetting and monitoring would uncover the

predilections of a vendor’s employee to engage in sexual assault.

Thus, the connection between shortcomings in vetting and

monitoring of a vendor and a subsequent sexual assault by one of

the vendor’s employees is weak. (Accord, Doe v. L.A. County

Dept. of Family Services (2019) 37 Cal.App.5th 675, 684-685 (Doe)

[absence of additional vetting and oversight “would not have led

to information about the [employee’s] criminal propensities”].)

Rowland’s countervailing policy considerations all but

dictate that we limit the duty to protect running from regional

centers to consumers here.

Where the regional center’s alleged shortcoming is the

failure to adequately vet and monitor vendors’ compliance with

17

consumers’ plans and the vendors’ contracts, the moral blame for

a subsequent sexual assault by a vendor’s employee does not lie

with the regional center. If, as our Supreme Court has noted,

“little or no moral blame attache[s]” to an employer’s “hiring or

retention decision” unless that employer “knew or should have

known of the dangerous propensities of the employee who injured

the plaintiff” (C.A. v. William S. Hart Union High School Dist.

(2012) 53 Cal.4th 861, 878), then there is even less moral blame

attaching to a regional center who is “once removed” from that

hiring decision. Further, because moral blame is “typically found

when the defendant reaps a financial benefit from the risks it has

created” (Kuciemba, supra, 14 Cal.5th at p. 1025), the absence of

any financial motive by regional centers means they are less

morally blameworthy for this reason as well.

Imposing liability on regional centers for sexual assaults

committed by vendors’ employees due to the regional centers’

inadequate vetting and monitoring will also not prevent such

assaults because even adequate vetting and monitoring is

unlikely to uncover the criminal propensities of those employees

and because regional centers do not control those employees or

the vendors’ premises where the employees work. More to the

point, recognizing a duty by regional centers to prevent sexual

assault by any vendors’ employees by virtue of insufficient

vetting and monitoring would convert regional centers into the de

facto insurers against all sexual assaults inflicted by any vendor

employee against any consumer.10 (Accord, Regents, supra, 4

10 Indeed, because a consumer’s family members can also be

vendors (Cal. Code Regs., tit. 17, § 54326, subd. (a)), this would

render a regional center liable for sexual assault committed by a

consumer’s family members.

18

Cal.5th at p. 634 [expressing hesitation when the imposition of

liability will convert a class of defendants into “the ultimate

insurers of all . . . safety”]; Shalghoun, supra, 99 Cal.App.5th at

pp. 952-953 [declining to impose duty on regional centers to

protect residential facility vendor employees from injury caused

by consumers when the regional center did not move a consumer

as requested by the facility because doing so would convert

regional centers into de facto insurers against all such injuries].)

Because the Act precludes regional centers from providing

services themselves, and contrary to A.L.’s bald assertion that

only “minimal effort” would be “necessary to supervise and

monitor” vendors, the only way for regional centers to mitigate

that liability would be to engage in very close oversight of all

vendor employees.11 But that would be an impossible task given

11 The facts of this case are a vivid example. The Regional

Center did provide training to Round Trip’s employees on

consumer abuse and neglect on one occasion, and contractually

obligated Round Trip to provide it to any of its employees who did

not attend that training. The Regional Center also obligated

Round Trip’s employees to receive a copy of its policies regarding

protecting consumers, and Round Trip’s records indicate that it

gave a copy of that policy to Ocampo. Ocampo later said he did

not attend any training; he also said he lied about receiving a

copy of the policy and never understood it due to the policy not

being in his native language. The only way for the Regional

Center to be sure that every vendor employee is trained would be

to interview them individually to ensure both their receipt and

their comprehension of its anti-abuse policies. Given the sheer

number of employees employed by the dozens if not hundreds of

vendors in the 48 different categories of services that regional

centers provide, this burden of ensuring merely that every vendor

employee understood the anti-abuse policy is anything but

“minimal.”

19

the sheer number of employees working for the vendors who

directly provide the 48 categories of services and support

specified in the Act. That would leave regional centers liable in

tort for all sexual assaults committed by all vendors’ employees.

Yet “[i]mposing such vast tort liability on regional centers that

are, by definition, nonprofit entities, will likely drive them out of

business and hence end up doing nothing to prevent future

harm.” (Shalghoun, at p. 953.) A.L. argued for the first time at

oral argument that our Legislature’s decision to assign the

responsibilities of evaluating, coordinating, and monitoring to

private nonprofit regional centers rather than to some public

agency amounts to an expression of legislative intent that

regional centers not enjoy tort immunity. This argument not

only ignores that the immunity enjoyed by public agencies is

limited and does not extend to the negligent failure to protect

against risks (Gov. Code, § 815.6) or to the negligent acts of their

employees (id., § 820), but also ignores that our Legislature

resorted to private nonprofit entities because it did not view state

agencies as viable entities (Shalghoun, at p. 941).

Imposing liability on regional centers for sexual assaults

committed by vendors’ employees due to the regional centers’

inadequate vetting and monitoring of vendors would impose a

crushing burden on those centers, would drive them out of

business, and thus would very like render the Lanterman Act a

dead letter because no regional center would remain in business

to coordinate and contract for the services and support needed by

developmentally disabled individuals across the state.

(Shalghoun, supra, 99 Cal.App.5th at p. 953.) Even if imposing

tort liability does not destroy all regional centers, the imposition

of that liability is likely to shift their focus away from providing

20

services and support for consumers and toward extensive

oversight of vendors that is still unlikely to uncover the criminal

propensities of employees.

It is not clear whether the imposition of tort liability in this

context might be mitigated by the availability of insurance

because it is “far from clear that insurers would insure regional

centers for the type of open-ended liability that may accrue here

when such centers lack the ability to” mitigate that liability

because they do not control the vendors’ employees, because they

do not control the vendors’ premises, and because additional

vetting and supervision are unlikely to reveal individual

employees’ propensities to sexually assault consumers.

(Shalghoun, supra, 99 Cal.App.5th at p. 954.) Although a

regulation empowers regional centers to require vendors to

obtain “liability insurance” (Cal. Code Regs., tit. 17, § 58510,

subd. (c)(1)), that regulation does not explicitly empower regional

centers to require vendors to list the regional center as an

additional insured and, therefore, the Legislature did not set up a

liability-protection measure for regional centers specifically.

More broadly, the fact that it may or may not be possible to

protect against a liability does not by itself justify the creation of

a duty giving rise to such a liability.12

12 For much the same reason, we reject A.L.’s argument—

raised for the first time at oral argument—that the likelihood

that a jury might apportion more fault to a vendor than to a

regional center counsels in favor of imposing liability against the

regional center. There is no guarantee juries would do that; more

to the point, the possibility that regional centers might be

deemed to be less liable than vendors is not an argument for

imposing liability on regional centers in the first place.

21

Holding regional centers liable for sexual assaults

committed by vendors’ employees on the basis of the centers’

failure to sufficiently vet and monitor the vendors is also

inconsistent with our Supreme Court’s decision in Morohoshi,

supra, 34 Cal.4th 482. Because a consumer is likely to be

sexually assaulted by a vendor’s employee only if both the

regional center and the vendor have not detected the employee’s

propensity to engage in such acts, holding the regional center

liable in this circumstance is in many respects akin to holding the

regional center vicariously liable for the vendor’s negligence. But

Morohoshi held that regional centers are not vicariously liable for

a vendor’s negligence, even when, in that case, it causes the

death of a consumer. (Id. at p. 486.) It is difficult to square a

rule of tort liability effectively holding a regional center

vicariously liable for a consumer’s sexual assault when

Morohoshi precludes vicarious liability for a consumer’s death.

This analysis of the Rowland factors warrants limiting the

duty to protect. However, as discussed next, it does not justify

eliminating it entirely.

3. Applying the Rowland factors to the duty to

protect premised on a failure to take action when the regional

center has actual knowledge of the vendor employee’s proclivities

Although the Rowland factors warrant the conclusion that

regional centers do not owe a duty to protect consumers from

sexual assault by vendors’ employees premised solely on the

center’s failure to adequately vet and monitor vendors, we

conclude that there is such a duty when a regional center fails to

22

act despite its actual knowledge of a particular vendor employee’s

propensity for sexual assault.13

We reach this conclusion for four reasons.

First, limiting a regional center’s duty to protect against

sexual assault of a consumer by a vendor employee to instances

in which the regional center has actual knowledge of the

employee’s proclivity for such assaults is supported by the

Rowland factors themselves. When a regional center actually

knows that the employee of a vendor has a predilection to engage

in sexual assault, any resulting sexual assault committed against

a consumer by that employee is far more foreseeable, and the

connection between the regional center’s inaction and the

resulting sexual assault is far closer. And in this context, a

regional center’s inaction is more morally blameworthy, imposing

liability will be more likely to encourage intervention by the

regional center, and this tort liability is unlikely to be

overwhelming or detrimental to the continued operation of the

Lanterman Act because the instances in which a regional center

will be actually aware that a vendor’s employee has such a

predilection and will take no action are likely to be far fewer in

number.

13 Because state law requires vendors to conduct criminal

background checks on their employees, and because A.L.’s

operative complaint does not seek to impose liability due to the

failure to conduct such checks, we have no occasion to examine

whether a regional center would have any liability for failing to

ensure that such checks are conducted by a vendor. (Cf. Youth

Soccer, supra, 8 Cal.App.5th at p. 1129 [imposing liability on

youth soccer organization for failing to require background

checks].)

23

Second, limiting a regional center’s duty to protect against

sexual assault of a consumer by a vendor’s employee to instances

in which the regional center has actual knowledge of the

employee’s proclivity for such assaults is supported by precedent.

In J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388

(J.L.), a child molested by the relative of an owner of a low-

income daycare facility sued the nonprofit corporation that

referred the child to that daycare facility. The court held that the

nonprofit corporation had a “special relationship” with the child,

but held that a referring entity’s duty to protect a child from

sexual assault only arises when that entity has actual knowledge

of the molester’s propensity for sexual assault; the entity’s

alleged failure to investigate further was not enough to create a

duty. (Id. at pp. 396-397.) The court in Doe, supra, 37

Cal.App.5th 675, also held that the same nonprofit corporation

that referred a child for a foster placement—despite having a

“special relationship” with that child—did not have a duty to

protect the child from sexual assault by someone in the foster

family’s home absent its actual knowledge of the assaulter’s

propensity to engage in such an assault. (Id. at pp. 682-683.)

Third, limiting a regional center’s duty to protect against

sexual assault of a consumer by a vendor employee to instances

in which the regional center has actual knowledge of the

employee’s proclivity for such assaults is supported by the

Lanterman Act and its implementing regulations. The Act

obligates regional centers to adopt “best practices” with regard to

their “administrative practices and services” that do not

“[e]ndanger a consumer’s health or safety” (§ 4620.3, subds. (a) &

(g)(1)) and empowers the centers to “provide direct treatment and

therapeutic services” to consumers in “emergency situations” (but

24

not otherwise) (§ 4648, subd. (f)); thus, the Act contemplates that

a regional center cannot itself knowingly take actions that create

danger to consumers and must also take action to provide

services to consumers when the center learns of an “emergency

situation” (which would ostensibly include a danger of sexual

assault). Similarly, the regulations under the Act authorize a

regional center to terminate a vendor’s contract upon a

“determin[ation] that continued utilization of the vendor

threatens the health and safety of the consumer[]” (Cal. Code

Regs., tit. 17, § 54370, subd. (b)(7)), and such a determination

necessarily presupposes actual knowledge of the danger. Thus,

the Act contemplates that a regional center must take action

upon acquiring knowledge of a threat to a consumer—and gives

the center tools to protect the consumer and still provide the

consumer with services and support.

Fourth, several decisions outside the context of referral

agencies have keyed the existence of a duty to protect against

sexual assault or other criminal behavior by a third party to the

defendant’s actual knowledge of the third party’s proclivity to

engage in such behavior. (See Margaret W. v. Kelley R. (2006)

139 Cal.App.4th 141, 152, 156; Romero v. Superior Court (2001)

89 Cal.App.4th 1068, 1093-1095; see also Ann M. v. Pacific Plaza

Shopping Center (1993) 6 Cal.4th 666, 678-679 [a premises owner

is liable for injuries to invitees caused by a third party’s criminal

acts only if the owner is aware of “similar incidents of violent

crime” on its premises], overruled on other grounds by Reid v.

Google, Inc. (2010) 50 Cal.4th 512; Sharon P. v. Arman, Ltd.

(1999) 21 Cal.4th 1181, 1190-1191 [same], overruled on other

grounds by Reid.)

25

Because it is undisputed that the Regional Center did not

have any knowledge of Ocampo’s proclivities to engage in sexual

assault—and, to the contrary, because the record indicates that

Ocampo had no criminal history and because there is no evidence

that Ocampo had engaged in any questionable behavior during

the four and a half years between his hire by Round Trip and the

rape in this case—the Regional Center did not owe A.L. a duty to

protect against the sexual assault alleged in this case.

III. A.L.’s Further Arguments

A.L. resists our conclusion with what boils down to three

further arguments.

First, A.L. argues that a duty that is triggered only upon a

defendant’s actual knowledge is no longer permitted after Brown,

supra, 11 Cal.5th 204, because Brown requires that the

assessment of whether a duty exists under the Rowland factors

must be conducted “‘at a relatively broad level of factual

generality’” (id. at p. 221); defining a duty to turn on a particular

defendant’s particular knowledge about a particular third party’s

proclivities for criminal conduct, A.L. reasons, is too “case-

specific.” A.L. cites two recent decisions that appear to adopt this

line of reasoning and to disagree with J.L., supra, 177

Cal.App.4th 388, and Doe, supra, 37 Cal.App.5th 675. (See

Roman Catholic Archbishop, supra, 70 Cal.App.5th at pp. 677-

678; Lawndale, supra, 72 Cal.App.5th at pp. 126-130.)

Although Roman Catholic Archbishop and Lawndale seem

to adopt this line of reasoning, we respectfully disagree with their

holdings that Brown precludes a duty to protect triggered by an

alleged tortfeasor’s actual knowledge of a third party’s propensity

to commit a criminal act. Brown requires that the Rowland

factors be analyzed “‘at a relatively broad level of factual

26

generality.’” The Rowland analysis we set forth above is

conducted at that level of generality because it asks whether, as a

general matter, regional centers should be liable for injuries to a

consumer resulting from a sexual assault committed by a

vendor’s employee. Although we conclude that such a duty exists

only in that category of cases when a regional center has actual

knowledge of that employee’s propensity to engage in the

criminal act of sexual assault, the policy analysis of duty that we

have undertaken is not tied to any case-specific facts; the case-

specific facts only come into play when we assess whether this

particular case falls within the category where a duty exists—

that is, when we conclude that the undisputed fact of the regional

center’s lack of actual knowledge in this case precludes the

existence of a legal duty to protect A.L. for purposes of her

negligence claim. To conclude that a duty of care can never be

limited to situations in which the defendant has actual

knowledge because the knowledge limitation constitutes an

impermissible specificity that runs afoul of Brown is to conclude

that all tort duties can never be qualified or delimited. Applying

this approach in this case would not only overturn all of the

precedent cited above that delimits tort duties based on the

defendant’s actual knowledge, but would also render regional

centers liable for all harm to consumers inflicted by anyone at

any time. We do not think that tort law must be painted with

such clumsy strokes; such an approach is inconsistent with our

Supreme Court’s mandate that we calibrate tort law to the proper

balance of societal good versus societal harm.14

14 We do not disagree with the outcomes of Roman Catholic

Archbishop or Lawndale, which ground their duties to protect on

the defendant’s control over the sexual offender and the

27

Second, A.L. argues that we may not look to the scope of

obligations imposed on regional centers by the Act in defining a

regional center’s duty of care because doing so confuses the

standard of care with the duty of care. To be sure, a statutorily

defined standard of care does not, by itself, obligate a court to

recognize a duty of care. (Issakhani v. Shadow Glen Homeowners

Assn., Inc. (2021) 63 Cal.App.5th 917, 935 [“The standard of care

presupposes a duty [of care]; it cannot create one”].) But our

analysis does not look to standards of care set forth in the Act to

create—or delimit the scope of—a regional center’s duty of care

under tort law. (Cf. Myrick v. Mastagni (2010) 185 Cal.App.4th

1082, 1087 [“statutory compliance” is not often a “defense to tort

liability”].) We look to the Act solely to ascertain the role regional

centers are supposed to play in the provision of services and

support under the Act, and thereby to understand the public

policy the Act embodies. We then assess whether imposing tort

liability would further or instead hinder that public policy. Based

on the Rowland-factors analysis, we have limited tort liability to

those circumstances in which tort liability would further the

public policy underlying the Act, and have prohibited tort liability

in the broader circumstances in which it would hinder the Act’s

purposes.

Third and lastly, A.L. argues that the Act expresses the

“intent of the Legislature that persons with developmental

disabilities shall have [a] right to be free from harm, including . .

. abuse[] or neglect.” (§ 4502, subd. (b)(8).) That consumers have

a right to be free from abuse or neglect does not create a legal

duty of regional centers to protect consumers from all abuse or

premises—which are important facts missing from the duty

question presented in this case.

28

neglect they may suffer at the hands of others, including the

employees of vendors. The right and the duty are not

automatically flip sides of the same coin, and our analysis of the

pertinent public policy considerations confirms that they should

not be.

* * *

What happened to A.L. in this case is undeniably tragic.

However, were we to accept A.L.’s position that a regional center

is liable for sexual assault committed against a consumer by a

vendor’s employee based only on a center’s alleged negligence in

not monitoring the vendor closely enough, we would effectively

convert regional centers into insurers of all harm to consumers

and, because they are neither funded nor staffed to undertake

that vast liability, would effectively shut those centers down.

This, too, would be devastating, albeit for a different reason—

namely, because it would deny essential services and support to

the entire population of developmentally disabled persons who

rely upon those services to live fulfilling and meaningful lives.

Our Legislature has the power to restructure the system for the

provision of services and support under the Lanterman Act;

unless and until it does, we will not use tort law to do so.

29

DISPOSITION

The judgment is affirmed. The Regional Center is entitled

to its costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST

30

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.