A.L. v. Harbor Developmental Disabilities Found.

321 Cal.Rptr.3d 575

A.L., an Incompetent Person, etc., Plaintiff and Appellant,

v.HARBOR DEVELOPMENTAL DISABILITIES FOUNDATION, Defendant and Respondent.

B322729

Court of Appeal, Second District, Division 2.

Filed May 30, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed. (Los Angeles County Super. Ct. No. 19STCV05630)

Greene Broillet & Wheeler, Scott H. Carr, Ivan Puchalt, El Segundo; Law Offices of Jacob Emrani, Jacob Emrani, Los Angeles; Esner, Chang, Boyer & Murphy, Holly N. Boyer and Shea S. Murphy, Pasadena, for Plaintiff and Appellant.

Horvitz & Levy, Andrea M. Gauthier, Scott P. Dixler, Burbank; Beach Law Group, Thomas E. Beach, Darryl C. Hottinger and Eligio J. Luevanos for Defendant and Respondent.

HOFFSTADT, J.

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, 20 Cal.Rptr.3d 890, 100 P.3d 433 (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 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 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 "subjected] 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 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 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 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, 276 Cal.Rptr.3d 434, 483 P.3d 159 (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 poli- cy considerations militated against recognizing a duty to protect, at 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.

[1, 2] "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, 230 Cal. Rptr.3d 415, 413 P.3d 656 (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,...