Hernandez v. County of L.A. CA2/4 ( 2023 )

Filed 3/14/23 Hernandez v. County of L.A. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
EVANGELINA HERNANDEZ, B318699
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV24771)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Peter A. Hernandez, Judge. Reversed.
Rees Law Firm and Robert A. Rees; The Claypool Law
Firm, Brian E. Claypool and Nathalie Vallejos; Taylor & Ring,
David M. Ring and Sonya Ostovar for Plaintiff and Appellant.
Beach Law Group, Thomas E. Beach and Darryl C.
Hottinger for Defendant and Respondent Hathaway-Sycamores
Child and Family Services.
Noah C. was removed from and returned to his abusive
parents’ custody multiple times before dying under suspicious
circumstances in their care in July 2019, at the age of four.
Noah’s great-grandmother Evangelina “Eva” Hernandez, as
successor in interest to Noah’s estate and guardian ad litem for
his minor siblings A.C., E.C., and R.C., filed a third amended
complaint (TAC) asserting survival and wrongful death causes of
action against Hathaway-Sycamores Child and Family Services
(Hathaway), a mental health services provider that worked with
the family in 2018.1 The TAC alleged that Hathaway failed to
provide Noah and his parents with appropriate therapy, for
which it negligently and erroneously concluded Noah had no
medical need. It further alleged that Hathaway’s negligent
assessment was reported to the dependency court and was a
substantial factor in the dependency court’s decision to return
Noah to his parents’ care in early November 2018 and his tragic
death eight months later.
The trial court sustained Hathaway’s demurrer to both
causes of action. It ruled that the TAC failed to allege facts
supporting the conclusion that any negligence by Hathaway was
the legal or proximate cause of Noah’s death. The trial court
concluded the allegations concerning Hathaway were too
attenuated from Noah’s death, which occurred after several other
incidents not involving Hathaway. The trial court denied leave to
1 The TAC also asserted causes of action against the County
of Los Angeles (the County) due to the alleged negligence of the
Department of Children and Family Services (DCFS), which
retained Hathaway and had other involvement with the family.
Those causes of action are not at issue here, and the County is
not a party to this appeal.
2
amend the complaint a fourth time and entered judgment in
favor of Hathaway.
Hernandez and Noah’s siblings (appellants) contend the
trial court erred in sustaining the demurrer and denying leave to
amend. They contend the allegations in the TAC and reasonable
inferences therefrom establish a chain of causal connection
between Hathaway’s negligence and Noah’s death. We agree and
reverse the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Allegations
Appellants make the following factual allegations in the
TAC, which they filed after the court sustained Hathaway’s
demurrers to their original, first amended, and second amended
complaints with leave to amend. We must accept these
allegations as true for purposes of this appeal. (See Matthews v.
Becerra (2019) 8 Cal.5th 756, 761-762.)
Noah was removed from his mother’s care when he was six
months old, “due to his mother being arrested and under
investigation for fracturing the skull of” her infant sister, Noah’s
maternal aunt. Noah’s mother was convicted of a felony as result
of this incident, and Noah was placed with Hernandez for
approximately six months before being returned to his parents’
care.2
In November 2016, the dependency court declared Noah a
dependent based on allegations that he was failing to thrive in
2 The TAC later alleges that Noah “was in protective custody
from August 2014 to May 2015.” It is unclear why Noah was
placed in out-of-home care rather than with his father at this
time.
3
his parents’ care; DCFS also received a report “at one point” that
Noah was malnourished. The dependency court awarded
Hernandez custody of Noah and granted his parents monitored
visitation. On August 28, 2017, the dependency court found
Noah’s parents were making progress toward reunification and
liberalized their visitation to unmonitored.
At a review hearing in November 2017, the dependency
court further liberalized the parents’ visitation to include
unmonitored overnight visits with Noah and set the next review
hearing for May 29, 2018. Prior to the May 29, 2018 hearing,
Noah’s social worker reported that Noah was healthy and
thriving in Hernandez’s care but was very resistant to visits with
his parents, which he “hated.” “Before each visitation with his
parents, Noah increasingly cried, repeatedly refused to go with
his parents, and yelled and clung to” Hernandez. Noah’s social
worker found a moderate safety risk in returning Noah to his
parents’ home; DCFS wanted to further assess his parents’
ability to provide an appropriate level of care and stability for
him.
At the May 29, 2018 review hearing, the dependency court
“mandated that DCFS refer Noah and his parents to mental
health services” by ordering “(1) DCFS to provide age-appropriate
mental health services to Noah and (2) both parents and Noah to
undergo ‘conjoint counseling.’”3 DCFS retained and paid
Hathaway, “a mental health and welfare agency that provides
3 The trial court ultimately took judicial notice of the May
29, 2018 order, which Hathaway represents only directs DCFS to
refer Noah and his parents to appropriate services, not to provide
them. The May 29, 2018 order is not in the appellate record.
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behavioral services to dependent minors,” to provide the court-
ordered services. Pursuant to its contract with the County,
Hathaway promised to provide psychological counseling and
family support services, using qualified, licensed, and supervised
staff.
At the time it was retained, Hathaway knew that Noah had
been removed from his parents’ home because he was not safe in
their custody due to physical, verbal, sexual, and severe
emotional abuse. It also knew that Noah’s mother had been
charged with and convicted of physically abusing her infant sister
in August 2014, and his father “had a previous gang affiliation,
had a criminal record that included a loaded firearm conviction,
had a history of substance abuse and was a ‘current abuser of
marijuana’ that had rendered him in mid-2014 as incapable of
providing regular care and supervision of Noah.” Hathaway
knew that allegations that Noah’s parents generally neglected
and abused him had been substantiated in October 2016.
Hathaway knew that Noah had received various medical
diagnoses, including “‘failure to thrive, gross motor development
delays, feeding problems, sickle cell trait, and hypotonia.’” His
parents had failed to take him to eight scheduled medical
appointments, and he had been malnourished. Hathaway also
knew that Noah had difficulties forming a positive attachment to
his parents and expressed a strong desire not to live with them.
Noah refused to go with his parents, experienced mood and
behavioral issues only prior to overnight visits, had toileting
problems only during overnight visits, needed time to cry and
calm down before visits, and sometimes was inconsolable and had
to be carried to the car for the visits. In its intake profile, the
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date of which the TAC does not specify,4 Hathaway noted, “‘Noah
qualifies for Adjustment Disorder with anxiety as evidenced by
the following symptoms in relation to separation from maternal
great grandmother [Eva Hernandez] when having visitation with
parents; increased crying, [sic] repeatedly requesting not to go
with parents; repeatedly requesting to stay with his great
grandmother; refusal to go with parents, yelling and clinging to
great grandmother.’”
Despite its awareness of the above and terms of its contract
with DCFS, Hathaway assigned an unlicensed and unqualified
intern or trainee with an art therapy background and “almost no
training in child psychology” to Noah’s case. The TAC alleges the
trainee “never completed an assessment of Noah,” “provided no
therapy to Noah,” “did nothing to help Noah,” and “did not come
close to complying with the May 29 order.” It further alleges that
Hathaway neglected to supervise the trainee or review her notes;
it is unclear who assessed Noah and diagnosed him with
adjustment disorder.
According to the TAC, the trainee met with Hernandez and
Noah “four or five times between June 6, 2018 and October 25,
2018.” During a meeting on October 5, 2018 Hernandez told the
trainee that Noah was happy and thriving at her house but
strongly resistant to visiting his parents. The TAC alleges Noah
met the “medical necessity” requirement for treatment on that
date.
Noah and Hernandez saw the trainee on October 11 and 15,
2018. Hernandez again reported that Noah behaved
4 Appellants’ counsel asserted during oral argument that
Hathaway diagnosed Noah in June 2018.
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appropriately until he had to leave for visits with his parents. He
then suffered mood swings and “intensified behaviors” including
“crying, yelling, [and] ignoring request[s].” The trainee conducted
no therapy. On October 25, 2018, Hernandez told the trainee
there was ongoing stress in her home due to an upcoming court
date at which Noah might be returned to his parents. Noah
wanted to stay with Hernandez and “‘only becomes significantly
upset when he thinking [sic] he has to go with parents.’” The
trainee never spoke to Noah’s parents or his social worker.
By October 29, 2018, the trainee, whose notes were not
reviewed or approved by a licensed therapist, “negligently formed
the incompetent opinion that Noah lacked any medical necessity
for individual therapy.” The TAC alleges she reached this
conclusion even though she “knew or should have known” the
following: she lacked the education, training, or experience to
reach such a conclusion; Hathaway had agreed but failed to
provide court-ordered therapy to Noah; “Noah had a long and
serious history of trauma, abuse, and neglect by his parents”;
“Noah’s resistance to visiting his parents had, if anything,
worsened since May 29,” and nothing had improved since he was
diagnosed with attachment disorder with anxiety; “[t]he
dependency court would interpret this negligent opinion as
showing Noah and his parents made progress because of court-
ordered services, moving from ‘medical necessity’ to ‘no medical
necessity’”; “[t]he dependency court had a statutory obligation to
pursue family reunification before any other permanency
planning”; “[t]he dependency [court] would, based on this
unqualified and incompetent opinion, likely return Noah to his
parents”; and “[i]t was not safe to return Noah to his parents.” It
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further alleges that Hathaway “knew of the abuse and neglect
taking place during Noah’s weekend visits with his parents.”
On October 29, 2018, the trainee relayed her opinion to
Hernandez and said “there was nothing more [she] could do for
Noah.” Hernandez “foreseeably reported the negligent opinion to
Noah’s social worker and asked the social worker to contact [the
trainee]. The social worker foreseeably reported the negligent
opinion to the dependency court.” The trainee also told Noah’s
dependency court attorney that Noah lacked any medical
necessity for therapy, an opinion she reiterated after the attorney
told her that Noah was thriving in Hernandez’s care, Noah
vigorously resisted visiting his parents, and Noah’s mother was
trying to get custody of him. Neither the trainee nor Hathaway
made any written reports to anyone, and the trainee did not tell
Noah’s attorney or the dependency court that she had not
provided therapy or contacted Noah’s parents.
Prior to the November 1, 2018 hearing, DCFS determined
that Noah should not be returned to his parents; it recommended
for the first time that the dependency court terminate family
reunification services. At the hearing, however, the dependency
court relied on the trainee’s opinion, reasonably and foreseeably
inferred that Noah’s therapy goals had been met, and decided
Noah should be returned to his parents over DCFS’s objection.
The court did not immediately return Noah due to a defect in the
notice of the proceedings; it continued the hearing to November 9,
2018. In the interim, it “gave custody of Noah to his parents on
an extended visitation release, with the expressed intent to
return custody fully at the next hearing.”
On November 2, 2018, Hernandez told the trainee that the
dependency court had returned Noah to his parents’ custody.
8
Hernandez also told her that Noah “had experienced increased
stress, sadness, anxiety, and Noah cried in Ms. Hernandez’s lap
for at least an hour before leaving court with his mother.” After
learning this information, and that the dependency court
intended to grant custody to Noah’s parents on November 9,
2018, neither the trainee nor Hathaway did anything “to provide
full, accurate information to the Court or to change the negligent
opinion of ‘no medical necessity.’”
On November 6, 2018, Noah’s social worker told the trainee
that DCFS wanted Noah to be placed with Hernandez. The
trainee “repeated the false narrative that Noah met no medical
necessity for individual treatment” and failed to further
communicate with the dependency court. The TAC further
alleges that on November 6, 2018, the trainee “spoke with an
unidentified social worker,” whom she “failed to tell . . . that
Noah had an initial diagnosis of adjustment disorder with
anxiety, Noah had not received any therapy, no conjoint therapy
had occurred, and Noah greatly feared his parents. Instead, [she]
negligently repeated her false narrative that Noah did not have
any medical need for individual treatment.” On November 12,
2018, Hernandez told the trainee how upset Noah was about
being returned to his parents and asked for help on how to
support Noah. The trainee “continued to believe that Noah had
no medical need for therapy and just suggested family therapy
for Noah and his parents.” Hathaway did not provide family
therapy. The trainee spoke to Noah’s mother only once, at most,
and never attempted to contact Noah’s father. The trainee did
not report to Noah’s dependency court attorney or the
dependency court that Noah’s parents refused to participate in
family therapy, despite knowing that “parents’ failure to respond
9
to court-ordered services is a factor the court can consider in
deciding not to return a child to his parents.” Hathaway and the
trainee “create[d] the misimpression that Noah and his parents
were progressing toward reunification, when in fact the family
problems remained the same or worsened during this time
frame.” The trainee unilaterally closed Noah’s case file on
December 17, 2018.
In or about February 2019, a DCFS caseworker noted that
Noah appeared lethargic and withdrawn. DCFS received three
referrals regarding Noah in March and April 2019, including a
report that Noah arrived at a hospital with bruises on his back.
On or about May 13, 2019, “reports were made” that Noah’s
father “had an alcohol problem and allegedly kicked Noah and his
other minor children while out in public.” Around the same time,
DCFS “learned of allegations that Noah had been sodomized and
had injuries to his rectum consistent with sexual abuse.”
On or about May 15, 2019, a DCFS caseworker filed a
petition to remove Noah from his parents’ custody. The petition
was granted on or about the same day, but DCFS “willfully
ignored” it and did not remove Noah or ensure he received
various examinations also mandated by the order. DCFS also
“failed to warn or notify Ms. Hernandez of the May 2019
hearing.” On or about June 18, 2019, DCFS prepared a
“structured decision making assessment” for Noah in which it
noted “‘current concerns for the mother’s mental health’” and
indicated that Noah was at “very high” risk. Noah’s parents
remained his legal guardians.
On or about July 5, 2019, Noah’s parents called 911 to
report that Noah was drowning in a swimming pool. An
ambulance rushed Noah to the hospital, where he was
10
pronounced dead. Hospital staff “found signs of trauma on
Noah’s body and determined there were issues and irregularities
with his parents’ explanation for his cause of death.” Former
County Sheriff Alex Villanueva also stated that Noah’s injuries
were not consistent with his parents’ claims. Noah’s parents
have been charged with murder and torture in connection with
his death.
Following Noah’s death, then-DCFS director Bobby Cagle
stated, “‘This death happened on my watch. I fully accept the
responsibility for the work that was done. I also fully accept
responsibility for understanding what went wrong, what we can
do better, and to implement that as quickly as possible.’”
However, DCFS social workers “made threats against Evangelina
Hernandez in an attempt to silence her,” specifically threatening
that if she “made any public statements about Noah’s case and/or
potential lawsuits, she would not only lose her request for
guardianship of her great-grandchildren[, Noah’s siblings] A.C.,
E.C., and R.C., but that she would never see these great-
grandchildren again.”
II. Causes of Action Against Hathaway
In the fourth cause of action for wrongful death—
negligence, Noah’s siblings, by and through Hernandez,
incorporate the preceding allegations. They further allege that
Hathaway “agreed to carry out the dependency court’s May 8,
2018 [sic] order and to follow its contract with DCFS.” They
allege Hathaway accordingly owed Noah a duty “to use the skill
and care that a reasonably careful child service agency would
have used in circumstances similar to the above.” They allege
Hathaway breached its duties “by, among other things, failing to
provide any therapy to Noah and failing to provide any conjoint
11
counseling to Noah and his family between June 2018 and
December 17, 2018, when [it] unilaterally closed its file without
notifying the court.” They further allege Hathaway breached its
duties “by communicating the false information that Noah was
not medically qualified to receive any therapy and there was
nothing more that [Hathaway] could do to help Noah.”
Noah’s siblings allege Hathaway’s “negligent failure to
provide therapy and failure to communicate accurate information
to the dependency court proximately caused Noah C.’s death and
Plaintiffs’ resulting injuries and damages, because among other
things, the negligent breaches substantially contributed to the
dependency court’s decision to give custody of Noah to his
parents, and leave Noah with his parents, resulting in Noah’s
death.” They further allege Hathaway’s negligence deprived
them and will continue to deprive them of “the life-long
companionship, comfort, society, and care of Noah C., protection,
affection, moral support, guidance.”
In the fifth cause of action, survival action—negligence,
Noah’s siblings, as successors in interest to his estate, also
incorporate their previous allegations and make substantively
identical allegations regarding Hathaway’s duty and breach.
They allege that as a direct and proximate result of Hathaway’s
negligence, Noah and his estate “suffered injuries including, but
not limited to, physical and mental pain and suffering, physical
injuries, costs in medical care and treatment, and lost wages.”
III. Demurrer
Hathaway filed a demurrer to the TAC and the fourth and
fifth causes of action “both generally and specially” on the
grounds that the TAC “fails to state facts sufficient to constitute
these causes of action against this moving defendant.” In its
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memorandum of points and authorities, Hathaway asserted that
its involvement with Noah and his family ended when it last saw
Noah in October 2018, and appellants’ allegations failed to
support their claim that Hathaway was responsible for the
dependency court’s decision to return Noah to his parents in
November 2018 or Noah’s death in July 2019.
Hathaway argued that appellants failed to state a claim for
several reasons. First, it contended that even if Hathaway were
responsible for the dependency court’s decision to return Noah to
his parents, it is “a stretch of logic for plaintiffs to suggest that
[Hathaway] is liable for everything that happened to Noah
thereafter, including Noah’s death eight months later.” It
emphasized that Noah and his parents had been engaging in
unmonitored visitation for a year prior to November 2018,
implying that Noah’s parents had unfettered access to him long
before Hathaway became involved in the case. Second, it argued
that the TAC did not contain facts alleging that Hathaway was
responsible for the dependency court’s decision to return Noah,
because appellants did not allege that Hathaway or the trainee
made any representations to the dependency court that Noah
should be returned to his parents. Here, it quoted one of the trial
court’s previous rulings: “Even if the dependency court was told
that ‘all court-ordered therapy had been completed,’ that does not
come close to suggesting that decedent should be returned to his
parents.” Third, and relatedly, Hathaway argued that the only
information the dependency court had regarding Noah’s therapy
was “third-hand hearsay regarding the ‘falsely positive
statement’ that [the trainee] concluded that Noah did not need
individual therapy.” It asserted that appellants “cannot have it
both ways”: if the dependency court’s decision was substantially
13
based on Hathaway’s opinions, then it would not have made a
decision about his custody without receiving an official opinion
from Hathaway.
Fourth, Hathaway argued that it did not violate a court
order to provide therapy because the relevant May 29, 2018 order
only directed DCFS to refer Noah to therapy and did not direct
Hathaway to communicate with the dependency court or provide
a written report. Hathaway requested the trial court take
judicial notice of the dependency court’s May 29, 2018 order. It
also asserted that appellants failed to make any allegations “that
the dependency court was ever told anything regarding the
conjoint therapy.” Finally, it contended that the trainee’s
statements about Noah’s lack of a need for therapy to Hernandez
and Noah’s dependency court attorney “had absolutely nothing to
do with whether it was safe for Noah to be returned to his
parents.”
IV. Opposition and Reply
Appellants opposed both the demurrer and Hathaway’s
request for judicial notice As relevant here, appellants contended
their allegations regarding the factual issue of causation were
sufficient to survive Hathaway’s demurrer. They argued that
Hathaway’s negligence was more than negligible or theoretical,
and therefore constituted a substantial factor in causing Noah’s
death. They asserted that the dependency court “understood that
reunification would not occur until Noah’s [sic] ended his strong
resistance to visitations” and ordered individual and conjoint
therapy for Noah because it “wanted Noah to feel better about
being in his parent’s [sic] home.” They continued, “the
dependency court held a review hearing to see whether Noah still
hated visiting his parents,” and “expected someone to report on
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whether Noah and his parents had gone to therapy and whether
their relationship had improved as a result. [Hathaway] knew
the court expected information on whether services had been
provided and whether the family had made progress towards
reunification.”
Appellants further argued that Hathaway should have
reported to the dependency court that it assigned the case to an
unqualified trainee, did not provide therapy to the family, and
Noah “still had the same or worse adjustment disorder issues.”
Appellants argued such a report would have been consistent with
DCFS’s recommendation to terminate reunification services, and
the dependency court “likely would have agreed with DCFS and
would not have returned Noah to his abusive parents since
nothing had improved.” Instead, appellants asserted, Hathaway
indirectly reported to the dependency court that Noah had no
need for therapy, “which the court reasonably but wrongly
interpreted as Noah no longer resists visiting his parents.” They
contended Hathaway’s opinion thus was “pivotal” to the court’s
decision to return Noah to his parents, and Hathaway “could
foresee that its stupid opinion would be conveyed to the court.”
Appellants further argued that Hathaway’s arguments
lacked merit. They stated that Hathaway improperly disputed
the truth of their factual allegations, offered “unlikely alternative
inferences to those that plaintiffs drew from the facts,” ignored
“key allegations,” and improperly relied on the affirmative
defense of superseding causation.
Hathaway filed a reply in support of the demurrer. It
reiterated its previous arguments and emphasized that Noah’s
parents “had access to Noah regardless of the Dependency
Court’s Order in November 2018.”
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V. Hearing and Ruling
The trial court heard the demurrer on December 14, 2021.
During the hearing, appellants’ counsel argued that Hathaway’s
opinion that Noah lacked a medical need for therapy was “the
only contrary information” to DCFS’s recommendation that
reunification services be terminated, and it was foreseeable that
conveying that opinion to Hernandez and Noah’s attorney would
put that opinion before the dependency court. After appellants’
counsel conceded that Noah had been visiting his parents
throughout the case, the court asked what the connection was
between the November 2018 order and Noah’s parents’ access to
him. The court observed that the dependency court was not
“deciding something conclusive. It was whether or not
potentially there would be more hours to allow that child to see
the parents, but there wasn’t anything . . . that the court can see,
with any facts you’ve alleged, that there’s some sort of legal or
proximate cause of what anyone from Hathaway did that led to
Noah’s death.” Appellants’ counsel responded that the
dependency court relied on Hathaway’s opinion to conclude
reunification was warranted because Noah had improved, and
would not have ordered reunification if it had known the truth.
Counsel asserted, “if the reunification efforts stop on November 1,
there’s no more visitation. There’s no more exposure to the
danger.”
The court asked Hathaway’s counsel whether the trainee
had opined about whether Noah should reunify with his parents.
Hathaway’s counsel said she did not. Hathaway’s counsel also
argued that causation was lacking because “[t]he question is, was
it safe to return Noah to his parents, and my client had nothing
to do with that,” and emphasized that Noah’s parents had access
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to him through unmonitored visitation even before the November
2018 order. Appellants’ counsel agreed that Hathaway did not
opine that it was safe to return Noah, but asserted that
Hathaway’s representation that he did not need therapy
“inferentially says Noah has changed,” and “without that, the
judge has nobody suggesting that Noah should go back to his
parents.” Appellants’ counsel also argued that the only way
Hathaway’s role could be “irrelevant is if the subsequent events
are supervening causes,” which he asserted was a fact issue not
appropriate for resolution by demurrer. The court took the
matter under submission.
The court issued a written order sustaining the demurrer
on January 14, 2022.5 It concluded the TAC “failed to allege facts
that would support a conclusion that any alleged negligence by
Defendant Hathaway was the legal or proximate cause of
decedent’s death.” The court found that the TAC alleged
Hathaway told Noah’s dependency court attorney he did not need
therapy, and “then alleges, without any additional allegations
providing for a reasonable inference, that the dependency court
had knowledge of such statement when it made its order to
return decedent to his parents.” The court continued, “the
allegations fail to allege that [trainee] or Defendant Hathaway
represented to DCFS or the dependency court that decedent
should be returned to his parents. Furthermore, if taken as true
for purposes of this Demurrer that [trainee] made false
5 The court also granted Hathaway’s request for judicial
notice of the May 29, 2018 dependency court order. It denied the
request for judicial notice of a status report DCFS filed in
advance of the May 29, 2018 hearing.
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representation [sic] to the dependency court that contributed to
the court’s decision to return decedent to his parents, the court’s
decision and decedent’s death (which took place approximately
eight months later) are so attenuated to the allegations
pertaining to [trainee] that Plaintiffs cannot assert that
Defendant Hathaway’s conduct was a legal factor in decedent’s
death.” The court also stated that the allegations in the TAC
demonstrated “there were several events that took place between
the November 2018 hearing and decedent’s death, which were
substantial factors in decedent’s death,” and “there are no
allegations that Defendant Hathaway had any knowledge or
suspicion of any abuse/neglect suffered by decedent after he
stopped receiving services from it or that they violated any of the
court’s order(s).”
The court denied leave to amend the TAC. It found that
appellants did not and could not meet their burden of showing a
reasonable possibility that the defects in the TAC could be cured
by further amendment. It reiterated that there were no
allegations that Hathaway told the court Noah did not need
services or had knowledge or suspicion that Noah’s parents were
abusing him after he reunified with them. The court added that
“even if that was the case, there are no allegations that this
information caused the dependency court to order reunification
between decedent and his parents,” and “even if the dependency
court had relied on the alleged information that no services were
to be provided to decedent, Plaintiffs do not and cannot allege
sufficient facts to demonstrate that this decision was a
substantial factor in the horrific death of this young boy. To that
end, such attenuated allegations as set forth in the TAC,
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temporally separated and extremely attenuated, cannot survive
demurrer.”
The court entered judgment in favor of Hathaway on
January 26, 2022. Appellants timely appealed.
DISCUSSION
I. Legal Principles
A. Standards of Review
“Because the function of a demurrer is to test the
sufficiency of a pleading as a matter of law, we apply the de novo
standard of review in an appeal following the sustaining of a
demurrer without leave to amend. [Citation.] We assume the
truth of the allegations in the complaint, but do not assume the
truth of contentions, deductions, or conclusions of law.”
(California Logistics, Inc. v. State of California (2008) 161
Cal.App.4th 242, 247.) We also assume the truth of all facts
reasonably inferable from the facts alleged. (Busse v. United
PanAm Financial Corp. (2014) 222 Cal.App.4th 1028, 1032-1033;
Neilson v. City of California City (2005) 133 Cal.App.4th 1296,
1305.) We may affirm on any basis stated in the demurrer,
regardless of the ground on which the trial court based its ruling.
(Summers v. Colette (2019) 34 Cal.App.5th 361, 367.) We
presume the judgment of the trial court is correct, and appellants
bear the burden of affirmatively showing error. (Jameson v.
Desta (2018) 5 Cal.5th 594, 608-609; Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.)
We review the trial court’s order denying leave to amend
for abuse of discretion. We must decide whether there is a
reasonable possibility appellants could cure the defect with an
amendment. Appellants bear the burden of proving that an
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amendment would cure the defect. (Modisette v. Apple Inc. (2018)
30 Cal.App.5th 136, 155.)
B. Substantive Principles
The elements of a cause of action for negligence are a legal
duty to use due care, a breach of that legal duty, and the breach
as the proximate or legal cause of a resultant injury. (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917.) ‘“The elements
of a cause of action for wrongful death are a tort—here,
negligence, a resulting death, and damages consisting of
pecuniary loss suffered by the decedent’s heirs.”’ (Lattimore v.
Dickey (2015) 239 Cal.App.4th 959, 968.)
Here we follow the parties’ lead and focus on the element of
causation.6 Causation is a fundamental requirement in a tort
claim; damages cannot be recovered unless there is a causal
connection between the act or omission complained of and the
injury sustained. (McDonald v. John P. Scripps Newspaper
(1989) 210 Cal.App.3d 100, 104.) California applies the
“substantial factor” standard of causation, “a relatively broad one
requiring only that the contribution of the individual cause be
6 Although it now argues that it had no legal duty to provide
Noah with therapy, Hathaway failed to make any such argument
in its demurrer below. Though we may affirm an order
sustaining a demurrer on a different basis than that relied upon
by the trial court, such basis must have been raised in the
demurrer. (See Summers v. Colette, supra, 34 Cal.App.5th at p.
367.)
20
more than negligible or theoretical.” (Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 968, 978.) The substantial
factor standard is broader than and “subsumes the ‘but for’ test
while reaching beyond it to satisfactorily address other
situations, such as those involving independent or concurrent
causes in fact.” (Id. at p. 969.) Accordingly, “[u]ndue emphasis
should not be placed on the term ‘substantial.’” (Ibid.) “Even ‘a
very minor force’ that causes harm is considered a cause in fact of
the injury.” (Uriell v. Regents of University of California (2015)
234 Cal.App.4th 735, 744.)
Causation ordinarily presents a question of fact for the
jury. (Vasquez v. Residential Investments, Inc. (2004) 118
Cal.App.4th 269, 278.) It may be decided as a matter of law only
where, “under undisputed facts, there is no room for a reasonable
difference of opinion.” (Nichols v. Keller (1993) 15 Cal.App.4th
1672, 1687.) The same is true of the affirmative defense of
superseding cause. (Green v. Healthcare Services, Inc. (2021) 68
Cal.App.5th 407, 415 [superseding cause is an affirmative
defense]; Silva v. Langford (2022) 79 Cal.App.5th 710, 716
[demurrer based on affirmative defense may be sustained only
where the face of the complaint shows the defense necessarily
bars the action].)
II. Analysis
Appellants contend that reasonable inferences drawn from
the facts pleaded in the TAC “show a sufficient causal chain to
permit the case to go to a trier of fact.” We agree that the TAC
contains factual allegations sufficient to survive the demurrer.
Appellants allege that Noah’s social worker reported
“before the May 29[, 2018] hearing” that Noah “was very
resistant” to visits with his parents, and cried, yelled, and clung
21
to Hernandez. They further allege that, after the hearing, the
dependency court ordered “age-appropriate mental health
services” for Noah and “conjoint counseling” for Noah and his
parents. It is reasonable to infer that the dependency court
ordered the counseling in response to the social worker’s report,
with a goal of improving Noah’s experience with the visits and
the family’s ability to reunify. (See In re Tania R. (1995) 32
Cal.App.4th 447, 451 [“The purpose of dependency proceedings,
when possible, is to reunify neglected or abused children with
their parents under juvenile court supervision utilizing review
hearings at six-month intervals.”]; In re M.R. (2020) 48
Cal.App.5th 412, 424 [“the court cannot arbitrarily order services
that are ‘not reasonably designed’ to eliminate the behavior or
circumstances that led to the court taking jurisdiction of the
child”].)
Appellants further allege that Noah was diagnosed with an
attachment disorder shortly after being referred to Hathaway,
yet was assigned to an unqualified trainee who failed to provide
him with any treatment to improve or resolve the diagnosis.
Instead, the trainee erroneously concluded Noah had no medical
need for treatment, a conclusion she orally conveyed to both
Hernandez and Noah’s dependency attorney. Appellants also
allege—and it is reasonable to infer—that it was reasonably
foreseeable that either or both of those individuals would relay
the report to the dependency court in connection with the
upcoming review hearing. The dependency court is obligated to
monitor family reunification plans (In re Daniel G. (1994) 25
Cal.App.4th 1205, 1211); it is reasonably foreseeable the court
would endeavor to comply with that obligation by inquiring about
the progress of the therapy services it previously ordered.
22
Though Hathaway emphasizes the absence of a direct or written
report to the court, it cites no authority holding that an informal
or indirect report is improper in the dependency context. To the
contrary, Noah’s counsel was obligated to make recommendations
to the court, and to advise the court of Noah’s wishes. (See Welf.
& Inst. Code, § 317, subd. (e).) It is reasonable to infer Noah’s
dependency attorney complied with this duty by notifying the
court that Hathaway reported Noah no longer had a medical need
for therapy, and that the court relied upon the information
provided by an officer of the court.
Appellants also allege that Hathaway’s assessment of Noah
was the only positive information regarding Noah and his
parents before the dependency court when it decided to reunify
the family. It is therefore reasonable to infer that the
dependency court gave at least some weight to Hathaway’s
opinion when it ordered Noah returned to his parents over the
objection of DCFS. Hathaway did not need to opine expressly
that Noah should be returned to his parents for the dependency
court to reasonably conclude from its assessment that
reunification was appropriate.
Hathaway argues here, as it did below, that its actions
could not have played a causal role in Noah’s death because he
regularly had unsupervised visits with his parents prior to
Hathaway’s involvement in the case, giving them “opportunities
to abuse, neglect, and murder” Noah. While this may be one
reasonable inference, it is also reasonable to infer that Noah’s
parents minimized or curtailed their abuse of Noah while he was
under court supervision and primarily in Hernandez’s custody,
escalating the abuse only after Noah was returned to their care
and court supervision ceased. Appellants’ allegations about the
23
repeated instances of abuse following Noah’s return support the
latter inference. We reiterate that “[e]ven ‘a very minor force’
that causes harm [may be] considered a cause in fact of the
injury,” particularly at the demurrer stage. (Uriell v. Regents of
University of California, supra, 234 Cal.App.4th at p. 744.) The
absence of allegations regarding the means by which Noah was
killed does not compel an alternative inference.
Hathaway also contends that it cannot be held liable
because “there were multiple reports of abuse/neglect against
NOAH, which did not arise until three months after NOAH’s
return, culminating in an order for NOAH’s immediate removal,
which DCFS ‘willfully ignored.’” This argument, which the trial
court found persuasive, is essentially an assertion that
intervening causes severed any link between Hathaway’s conduct
and Noah’s death. The TAC sufficiently alleges causation,
however. While a factfinder ultimately may agree, it is
premature to dismiss the TAC at the demurrer stage on the basis
of this affirmative defense. (See Silva v. Langford, supra, 79
Cal.App.5th at p. 716.) Appellants may proceed with their TAC.
DISPOSITION
The judgment of the trial court is reversed. Appellants
may recover their costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
CURREY, ACTING, P.J.
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STONE, J.*
*Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
25