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