Shalghoun v. North Los Angeles County Regional Center, Inc. ( 2024 )

Filed 1/25/2024
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ALI SHALGHOUN, B323186
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV19756)
NORTH LOS ANGELES
COUNTY REGIONAL
CENTER, INC.,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Doumanian & Associates, Nancy P. Doumanian; The Arkin
Law Firm and Sharon J. Arkin for Plaintiff and Appellant.
Beach Law Group, Thomas E. Beach and Darryl C.
Hottinger for Defendant and Respondent.
******
In 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. To discharge this duty, the Department of
Developmental Services (the Department) uses a network of
private, nonprofit entities called “regional centers.” (§ 4620.)
Regional centers do not themselves provide services; instead,
they evaluate the developmentally disabled persons (whom the
Act calls “consumers”), develop individually tailored plans for
their care, enter into contracts with direct service providers to
provide the services and support set forth in the plans, and
monitor the implementation of those contracts and the
consumers’ plans. (§§ 4642, 4643, 4640.6, subd. (a), 4647, 4648,
4648.1, 4742, 4743.) In this case, a regional center arranged for a
developmentally disabled person to be placed in a residential
facility, the facility thereafter informed the regional center that it
could no longer provide the level of care the person required, and
the person—while the regional center was in the midst of lining
up a different facility—attacked and injured the facility’s
administrator. The administrator sued the regional center for his
injuries. His lawsuit presents the following question: Does a
regional center have a duty to protect the employees of a
residential facility that accepted a developmentally disabled
person as a resident when the regional center does not
immediately relocate that person as requested by the facility?
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
We conclude that the answer is “no,” and accordingly affirm the
trial court’s grant of summary judgment for the regional center.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. J.C. and his history
J.C. is a man in his early thirties with a “mild intellectual
disability” along with autism, an “unspecified” “non-psychotic
mental disorder,” a “generalized anxiety disorder,” and “obsessive
compulsive disorder.” J.C. engages in self-harming behavior and
also has “outbursts of physical violence and aggression” toward
others.
J.C. is a client of the North Los Angeles County Regional
Center, Inc. (the Regional Center). The Regional Center
developed an individual program plan for J.C., which includes
housing him at a residential facility.
Between April 2008 and April 2016, the Regional Center
arranged for J.C. to be housed at the Fairview Developmental
Center, a residential facility for developmentally disabled
persons. While there, J.C. exhibited “dangerous propensities to
hurt himself and others.”
B. Placement in Hargis Home
On April 21, 2016, J.C. moved into Hargis Home, a licensed
adult residential facility owned by People’s Care Los Angeles,
LLC. Hargis Home is rated as being able to provide the “highest
level” of care for developmentally disabled persons and can
accommodate a total of three residents.
The Regional Center had “suggest[ed]” Hargis Home as a
possible placement for J.C. after Fairview Developmental Center,
but Hargis Home independently conducted its own assessment of
whether it could accommodate J.C. given his level of disability.
3
After determining that J.C. was “compatible with other
[r]esidents” of the facility as well as Hargis Home’s “program
design and service level,” Hargis Home signed a contract with the
Regional Center accepting J.C. as a resident. In that contract,
Hargis Home affirmed that the Regional Center had “provided all
available information concerning [J.C.’s] history of dangerous
behavior.”
The Regional Center contracted with My Life Foundation,
Inc. to provide additional staff to attend to J.C. when J.C. would
leave Hargis Home on outings.
C. Plaintiff becomes the administrator of Hargis
Home, and has concerns about its ability to care for J.C.
Ali Shalghoun (plaintiff) became the administrator of
Hargis Home in November 2017. Despite being hired as the
facility’s administrator, plaintiff alternatively asserted that he
had no idea that any of the facility’s residents exhibited
“aggressive or violent behavior,” that he “w[as]n’t clear” about the
residents’ behavior and the corresponding level of care Hargis
Home offered, and that he did know that the residents exhibited
such behavior but did not know “the level of the aggression.”
(Italics added.)
Despite Hargis Home’s initial determination and
representation that it could accommodate J.C.’s level of
disability, plaintiff felt that its staff was “not trained sufficiently”
to handle J.C. Plaintiff did not act on his concerns until much
later.2
2 In a January 2018 interim report, the Regional Center
noted that Hargis Home was not “address[ing]” J.C.’s
“developmental needs and the type and intensity of care
required” because the staff were not feeding him food that
4
In February 2018, J.C. had an encounter with plaintiff in
which J.C. smeared feces and ripped plaintiff’s clothes.
In April 2018, J.C. assaulted plaintiff and was restrained.
In May 2018, J.C. again assaulted plaintiff by “bec[oming]
aggressive towards [p]laintiff when [p]laintiff told him of [an]
upcoming appointment.”
D. Hargis Home sends the Regional Center a letter
requesting that J.C. be moved to a different facility
On May 16, 2018, Hargis Home sent the Regional Center a
letter. In that letter, Hargis Home stated its view that J.C. has
“intensive needs,” that “his needs exceed [Hargis Home’s] design
mandate,” and that this mismatch “places [J.C.] and the other
residents at risk for injury.” Hargis Home was thus “issuing a
30-day notice” to the Regional Center, and “request[ing] help . . .
in finding alternative placement” for J.C. and “extra direct care
staffing hours to support [J.C.] 24/7.”
In May or June 2018, Hargis Home also initiated eviction
proceedings against J.C.
E. The Regional Center takes action
The Regional Center began a statewide search for a new
facility to house J.C. By July 6, 2018, it had asked five different
residential facilities if they could accommodate J.C.; all had
declined. But the Regional Center continued its search.
In the meantime, the Regional Center secured additional
funding for additional staffing “in order to keep [J.C.] and staff
[at Hargis Home] safe.”
accounted for his obesity. This issue was resolved by March
2018.
5
F. J.C. attacks and seriously injures plaintiff
On July 27, 2018, J.C. approached plaintiff as plaintiff
worked at a desk on the premises of Hargis Home. J.C.—who is
around 5 feet 8 inches tall and weighs 265 pounds—picked up
plaintiff and threw him backwards against an overhead cabinet.
Plaintiff’s head struck the cabinet. Plaintiff suffered a laceration
to his head, a “mild concussion” with attendant tinnitus and
dizziness, pain in his neck and shoulder, and lost a tooth.
Plaintiff pursued and obtained a workers’ compensation
award from People’s Care Los Angeles, LLC.
II. Procedural Background
On June 6, 2019, plaintiff sued the Regional Center for his
injuries on two theories—namely, (1) vicarious liability for the
negligence of its employees (Gov. Code, § 815.2); and (2) failure to
satisfy its mandatory duties to monitor Hargis Home (Gov. Code,
§ 815.6).3
In March 2022, the Regional Center moved for summary
judgment on the grounds, as pertinent here, that (1) it owed
plaintiff no legal duty, and (2) plaintiff had assumed the risk of
the types of injuries caused by J.C. by accepting a job at Hargis
Home. After full briefing and a hearing, the trial court granted
the Regional Center’s motion on the first ground. Specifically,
the court reasoned that the Regional Center “only owed duties to
[J.C.], and not to [p]laintiff,” and that this result accords with the
3 Plaintiff also sued the County of Los Angeles, the Los
Angeles County Department of Mental Health, My Life
Foundation, Inc., and five of the Regional Center’s employees.
Plaintiff subsequently dismissed the County of Los Angeles and
My Life Foundation, Inc. The only defendant pertinent to this
appeal is the Regional Center.
6
purpose of the Act because regional centers “should be concerned
with providing adequate resources to consumers for the
consumer’s sake, not for potentially unknown third-party
employees of a residential facility.”
After judgment was entered, plaintiff filed this timely
appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting
summary judgment to the Regional Center on the ground that
the Regional Center did not owe him a duty of care.
“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);
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.) 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 and resolve
all doubts concerning that 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 v. USA Taekwondo (2021) 11 Cal.5th 204, 213
(Brown) [duty of care]; Regents, at p. 620 [special relationship].)
7
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., § 4640.7 et seq.; Cal. Code Regs., tit.
17, § 56002, subd. (a)(5).)
The Department 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 Department 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. (§§ 4501, 4620,
4621, 4640.6, subd. (a), 4640.7, subd. (a); Cal. Code Regs., tit. 17,
§ 56002, subd. (a)(36); Morohoshi v. Pacific Home (2004) 34
Cal.4th 482, 486-488 (Morohoshi); In re Williams (2014) 228
Cal.App.4th 989, 996, fn. 2.)
More specifically, regional centers are tasked with the
following:
● Diagnosis and counseling. Regional centers must
evaluate whether a particular individual suffers from a
“developmental disability.” (§§ 4642, 4643.) If so, the regional
center must assess their needs and formulate an “individual
program plan” (or IPP) that delineates each consumer’s “goals,
objectives, and [needed] services and supports.” (§§ 4646, 4512,
8
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.
Regional centers do not themselves directly provide any services
or support to consumers. (§ 4648, subd. (a)(1); Morohoshi, supra,34 Cal.4th at p. 489 [“the responsibility of a regional center is to
‘secure,’ not provide, care”].) Instead, they coordinate the
provision of services and support by entering into contracts with
“direct service providers”—that is, the entities who actually
provide residential facilities, counseling or other services and
support that the consumers need. (§§ 4640.6, subd. (a), 4647,
4648; Morohoshi, at p. 488.) When it comes to placing a
consumer in a residential facility, the regional center suggests or
recommends where a consumer may be placed, but it is up to the
residential facility whether to accept the consumer as a resident.
(Cal. Code Regs., tit. 17, § 56016, subd. (c); Cal. Code Regs., tit.
22, § 85068.4, subd. (a).) A central goal of the Act is to place
consumers in the “least restrictive environment” that can manage
their specific developmental disability, as doing so enables those
consumers to “achieve[] . . . the most independent, productive,
and normal lives possible.” (§ 4502, subd. (b)(1); § 4648, subd.
(a)(1) [“highest preference” should be given “to those services and
supports that would allow . . . adult persons with developmental
disabilities to live as independently as possible in the
community”].)
● Monitoring the provision of services. Regional centers
are tasked with monitoring, on a going-forward basis, whether
the services and support they have arranged are in accord with
the consumer’s IPP. (§§ 4742, 4743; Cal. Code Regs., tit. 17, §
56047, subd. (a) [requiring “quarterly” meetings regarding
9
progress under IPP]; Morohoshi, supra, 34 Cal.4th at p. 490
[“Regional centers have important but limited monitoring
responsibilities”].) When a regional center places a consumer in a
residential facility, the center is also tasked with monitoring
whether the facility remains safe for the consumer, informing the
facility of any deficiencies, and terminating the center’s contract
with the facility if those deficiencies are not remedied or, if there
is an immediate danger to the consumer, taking immediate steps
to relocate the consumer. (§ 4648.1; Cal. Code Regs., tit. 17, §§
56048, subd. (d), 56053.) The Act obligates a regional center to
audit facilities and to conduct “periodic” (that is, annual or semi-
annual) visits; a center does not engage in strict, “hour-by-hour”
oversight. (§ 4648.1, subd. (a) [minimum of “two monitor[ed]”
and “unannounced” visits per year]; Cal. Code Regs., tit. 17, §§
56047, subd. (a) [quarterly meeting regarding IPP may occur at
facility], 56048, subd. (d)(1) [facility liaison must conduct one
monitoring visit per year]; Morohoshi, at pp. 490-491 [regional
centers do not engage in “hour-by-hour monitoring”].) A
consumer may ask the regional center that they be relocated to a
new residential placement, which obligates the regional center to
“schedule an individual program plan meeting . . . to assist in
locating and moving to another residence.” (§ 4747; Cal. Code
Regs., tit. 17, § 56017, subd. (a).) A facility that “determines that
[it] can no longer meet the needs of [a] consumer” may ask the
regional center to “assist[]” in relocating the consumer; upon
receiving this request, the regional center (1) “shall relocate the
consumer within 30 days or within” a “mutually agreed-upon”
“time frame”; and (2) must provide “[a]ny additional measures
necessary to meet the consumer’s health and safety needs until
the relocation has been accomplished.” (Cal. Code Regs., tit. 17, §
10
56016, subds. (e), (b), (f) & (g), italics added.) Residential
facilities independently have the power to evict a consumer, with
either 30 days’ or three days’ notice; as pertinent here, a
residential facility may evict a consumer if he “has engaged or is
engaging in behavior which is a threat to his/her mental and/or
physical health or safety, or to the health and safety of others in
the facility.” (Cal. Code Regs., tit. 22, § 85068.5.)
● Coordinating funding. Regional centers are funded
by the state (§§ 4620, 4621, 4629), but are obligated also to seek
funding from other sources (§ 4659).
II. Analysis
Plaintiff’s two claims against the Regional Center are both
grounded in negligence. A plaintiff can prevail on a negligence
claim only if he establishes, as a “threshold matter,” that the
particular defendant he is suing owes him a “legal duty of care.”
(Brown, supra, 11 Cal.5th at pp. 213, 209.)
A. Legal duties of care, generally
Whether a particular defendant owes a particular plaintiff
a legal duty of care (actionable in a claim for negligence) is, at
bottom, a “question of public policy”—namely, should that
plaintiff’s interests be entitled to legal protection against the
defendant’s conduct? (Regents, supra, 4 Cal.5th at pp. 627-628;
Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1016
(Kuciemba); Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143
(Kesner).)
As our Supreme Court clarified in Brown, supra, 11 Cal.5th
at pp. 209, 218-219, answering that question obligates us to ask
two further questions: (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
11
Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland)
nevertheless favor “limiting that duty”?
1. Duty, under traditional principles of tort law
California tort law rests on two general rules governing
legal duties of care.
The first rule is that a person has a legal duty to act
reasonably and with due care under the circumstances with
respect to their own actions. (Civ. Code, § 1714, subd. (a);
Kuciemba, supra, 14 Cal.5th at p. 1016; Brown, supra, 11 Cal.5th
at pp. 213-214; Southern California Gas Leak Cases (2019) 7
Cal.5th 391, 398 (Gas Leak Cases); Regents, supra, 4 Cal.5th at p.
619; Kesner, supra, 1 Cal.5th at pp. 1142-1143; Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral).) In this
situation, liability for breach of this duty rests upon that person’s
affirmative conduct; as a result, the duty itself is grounded in
misfeasance.4 (Lugtu v. California Highway Patrol (2001) 26
4 Plaintiff has abandoned his prior theory that the Regional
Center is liable in negligence for its affirmative conduct (and
hence misfeasance) in suggesting that J.C. be housed at Hargis
Home. This theory is foreclosed as a matter of law in any event
because it is undisputed that Hargis Home independently
evaluated J.C.’s fitness for its facility, so it did not rely on the
Regional Center’s initial “suggestion” for placement. As a result,
the Regional Center did not engage in any misfeasance that
caused Hargis Home’s employees to be placed in peril. (Cf.
Regents, supra, 4 Cal.5th at p. 619; Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1128 (Zelig); MacDonald v. California
(1991) 230 Cal.App.3d 319, 334; Melton v. Boustred (2010) 183
Cal.App.4th 521, 533.)
Plaintiff has also abandoned his prior (and somewhat
related) theory that the Regional Center created a peril by failing
to warn him of J.C.’s violent propensities. This theory is also
12
Cal.4th 703, 716 (Lugtu) [“‘[m]isfeasance exists when the
defendant is responsible for making the plaintiff’s position
worse’”], italics added.)
The second rule is that a person has no legal duty to protect
others from a third party’s conduct. (Regents, supra, 4 Cal.5th at
pp. 619, 627; Zelig, supra, 27 Cal.4th at p. 1129; Williams v. State
of California (1983) 34 Cal.3d 18, 23; Weirum v. RKO General,
Inc. (1975) 15 Cal.3d 40, 49.) Liability for breach of this duty
would rest upon that person’s failure to take action to protect the
plaintiff; as a result, any duty would be grounded in nonfeasance.
(Lugtu, supra, 26 Cal.4th at p. 716 [“‘nonfeasance is found when
the defendant has failed to aid plaintiff through beneficial
intervention’”]; Brown, supra, 11 Cal.5th at pp. 214-215.)
This second, no-duty-to-protect rule is not without
exception, although the exception pertinent to this case is a
narrow one. Unlike the legal duty not to engage in misfeasance,
which runs to anyone whose injuries are proximately caused by a
breach of that duty, a legal duty not to engage in nonfeasance is
actionable only if the person being sued (the defendant) (1) has a
“special relationship” with a specific individual; and (2) that
special relationship gives rise to a legal duty of care running to
the plaintiff (or, more broadly, to the class of persons to which the
plaintiff belongs). (Zelig, supra, 27 Cal.4th at p. 1129; Davidson
v. City of Westminster (1982) 32 Cal.3d 197, 203; Tarasoff v.
Regents of University of California (1976) 17 Cal.3d 425, 435,
foreclosed as a matter of law in any event because the undisputed
facts establish that Hargis Home was fully informed of J.C.’s
violent propensities. Thus, plaintiff’s citation to Johnson v. State
of California (1968) 69 Cal.2d 782—a case dealing with failure to
warn—is inapt.
13
superseded on other grounds by Civ. Code § 43.92; Gas Leak
Cases, supra, 7 Cal.5th at pp. 397-398 [defendant must owe a
duty to “‘“an interest of [the plaintiff]”’”]; Brown, supra, 11
Cal.5th at p. 213 [same]; Musgrove v. Silver (2022) 82
Cal.App.5th 694, 706 (Musgrove); Issakhani v. Shadow Glen
Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 931
(Issakhani); Regents, supra, 4 Cal.5th at p. 621 [“a special
relationship is limited to specific individuals”].) More
specifically, a defendant may be liable to a plaintiff for the
defendant’s nonfeasance in the following two scenarios:
● When the defendant has a special relationship with
the third party who causes harm. A defendant owes a legal duty
of care to the plaintiff if (1) the defendant has a “special
relationship” with a third party who injures the plaintiff, and (2)
that special relationship entails a duty to control the third party’s
conduct for the benefit of the plaintiff or the class of persons to
which the plaintiff belongs. (Regents, supra, 4 Cal.5th at p. 619.)
With regard to the second element, a duty to control presupposes
an ability to control “such that ‘if exercised, [it] would
meaningfully reduce the risk of the harm that actually occurred.’”
(Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33
Cal.App.5th 70, 78; Megeff v. Doland (1981) 123 Cal.App.3d 251,
261; Smith v. Freund (2011) 192 Cal.App.4th 466, 473; Wise v.
Superior Court (1990) 222 Cal.App.3d 1008, 1013-1014.) The
ability (and hence concomitant duty) to control may be anchored
in (1) control imparted by virtue of the nature of the relationship
itself (as is the case with a parent-child or employer-employee
relationship) (Kesner, supra, 1 Cal.5th at p. 1148; Musgrove,
supra, 82 Cal.App.5th at p. 711; McHenry v. Asylum
Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 484-
14
485); or (2) control imparted by virtue of control over “the
environment” where the plaintiff is injured (as is the case with
schools being able to control students on campus) (Regents, supra,4 Cal.5th at pp. 631-632; Wise, at p. 1013).
● When the defendant has a special relationship with
the plaintiff. A defendant owes a legal duty of care to the
plaintiff if the defendant has a “special relationship” with the
plaintiff grounded in the defendant’s “superior control over the
means of protect[ing]” the plaintiff (and the plaintiff’s
concomitant “dependency” on that protection). (Regents, supra, 4
Cal.5th at pp. 619-621.) This type of special relationship exists
between a common carrier and its passengers, an innkeeper and
its guests, a jailer and its prisoners, and an employer and its
employee(s); in each instance, the former has superior control
over the means of protecting the latter that creates a duty to
protect that runs to the plaintiff. (Regents, at p. 621; Brown,
supra, 11 Cal.5th at p. 216; Musgrove, supra, 82 Cal.App.5th at p.
711.)
2. Public policy considerations that may counsel in
favor of limiting the duty
Even if California law provides that a legal duty of care
runs between a plaintiff and a defendant, courts have the power
and obligation to examine whether considerations of public policy
warrant limiting that duty. (Brown, supra, 11 Cal.5th at p. 217;
Regents, supra, 4 Cal.5th at pp. 628-629; Gas Leak Cases, supra,7 Cal.5th at pp. 398-399; Cabral, supra, 51 Cal.4th at p. 772.)
This public policy analysis is “forward-looking” and to be
conducted on a general, categorical basis (Kesner, supra, 1
Cal.5th at p. 1152; Kuciemba, supra, 14 Cal.5th at p. 1022); in
15
effect, we ask: Does public policy warrant curtailing liability in a
particular category of cases in the future?
Our Supreme Court in Rowland 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
considerations: (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 [“‘[f]oreseeability alone is not sufficient’”]; accord,
Regents, at pp. 633-634 [although it is foreseeable that students
could hurt anyone, a university’s duty to protect is confined to
other registered students]; Kesner, at pp. 1154-1155 [although it
is foreseeable that anyone may be harmed by asbestos carried
home from the workplace by an employee, an employer’s duty to
protect is confined to the employee’s household members].) 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 “would deter socially beneficial
behavior.” (Kuciemba, supra, 14 Cal.5th at p. 1028.) Rowland
identifies four of these countervailing policy considerations: (1)
16
the moral blame attaching to the defendant’s conduct, which is
“typically found when the defendant reaps a financial benefit
from the risks it has created” (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; Castaneda v. Olsher (2007)
41 Cal.4th 1205, 1217 (Castaneda)); (3) the “‘extent of the burden
to the defendant and consequences to the community of imposing
a duty . . . with resulting liability for breach’” (Gas Leak Cases,
supra, 7 Cal.5th at p. 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).
B. Application
Because the Lanterman Act does not explicitly create a
duty running from a regional center to the employees of the
residential facilities where consumers are placed,5 the question
presented here boils down to this: Does a regional center have a
special relationship with the consumers it serves that gives rise
to a legal duty of care owed by the center to the employees of
residential facilities that house the consumers when the center
5 Although a statute can sometimes explicitly create a duty
of care (e.g., Vesely v. Sager (1971) 5 Cal.3d 153, 164, superseded
by statute on other grounds as stated in Ennabe v. Manosa (2014)
58 Cal.4th 697, 707; J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799,
803), where it does not, courts may still examine the “public
policy embodied in [the] legislatively enacted statute” when
undertaking its analysis of public policy factors under Rowland
(Issakhani, supra, 63 Cal.App.5th at p. 929; Elsner v. Uveges
(2004) 34 Cal.4th 915, 927, fn. 8).
17
does not immediately relocate a consumer after the facility has so
requested?6
We conclude that the answer is “no,” and do so for three
reasons.
1. The Regional Center lacks the ability—and
hence the duty—to control J.C.
The undisputed facts establish that the Regional Center
does not have the ability to control J.C. and, therefore, no special
relationship exists between the Regional Center and J.C. that
could give rise to a duty.
The Regional Center stands in a service coordinator-
consumer relationship with J.C., which is not a relationship
which inherently involves the former’s control over the latter.
The Regional Center also does not have the ability to control
J.C.’s environment, which is owned and operated by Hargis
Home. Although landlords (and schools) may have a duty to
protect one tenant (or student) from another by virtue of their
control over the premises (Castaneda, supra, 41 Cal.4th at pp.
1219-1220 [landlord]; Andrews v. Mobile Aire Estates (2005) 125
Cal.App.4th 578, 596 [same]; Madhani v. Cooper (2003) 106
Cal.App.4th 412, 413-415 [same]; Regents, supra, 4 Cal.5th at p.
634 [university]; Peterson v. San Francisco Community College
Dist. (1984) 36 Cal.3d 799, 805-806 [community college]), the
Regional Center is neither a landlord nor an academic
institution.
6 Although, as explained above, a defendant may also be
liable for its nonfeasance when it has a special relationship with
the plaintiff, plaintiff here does not argue that the Regional
Center has a special relationship with him.
18
More to the point of the current iteration of plaintiff’s
claim, and contrary to what plaintiff asserts, the undisputed facts
establish that the Regional Center does not have the sole (or, as
plaintiff states, “ultimate”) ability to control J.C.’s placement
among various facilities. Regional centers are service
coordinators; they do not themselves own or operate residential
facilities. Thus, when a consumer is to be relocated from one
facility to another, the regional center must identify another
facility able and willing to accept the consumer as a resident.
(Accord, Kuciemba, supra, 14 Cal.5th at p. 1026 [employer that
cannot “fully control the risk of infection” not liable for infections
that its employees bring home from work].) Contrary to what
plaintiff asserted at oral argument, a regional center cannot
unilaterally relocate a consumer to a mental institution; plaintiff
cites no statute or regulation providing such authority, and
offered no evidence that the Regional Center had a practice of
doing so for J.C. in the past. Whether Hargis Home also had the
power to evict J.C. is therefore beside the point, as it has no
bearing on the Regional Center’s ability to control J.C.’s
placement; contrary to what plaintiff argues, Hargis Home’s
power to evict does not somehow imbue the Regional Center with
control or otherwise make Hargis Home and the Regional Center
joint tortfeasors.
Because the Regional Center lacks the ability to
unilaterally control J.C., J.C.’s location, or J.C’s relocation, the
Regional Center necessarily lacks the duty to control—and hence
does not stand in a special relationship with J.C. that could give
rise to a duty running to plaintiff.
Plaintiff resists this conclusion with what boils down to two
arguments.
19
First, plaintiff argues that the Regional Center’s more
generalized duty to monitor creates a duty. It does not. As our
Supreme Court noted in Morohoshi, supra, 34 Cal.4th 482, a
regional center’s “monitoring responsibilities” are “important but
limited.” (Id. at p. 490, italics added.)
Second, plaintiff argues that he relied upon—and was
dependent upon—the Regional Center to relocate J.C., and that
reliance and dependency are a basis for creating a special
relationship. This argument also lacks merit. For starters, this
argument ignores that a plaintiff’s reliance and dependency are,
as explained above, typically relevant to establishing when a
defendant has a special relationship with a plaintiff by virtue of
its “superior control over the means of protect[ing]” the plaintiff.
(Regents, supra, 4 Cal.5th at pp. 619-621.) But plaintiff premises
his position on the Regional Center’s special relationship with
J.C.—not with plaintiff himself. We reject plaintiff’s attempt to
make apple pie out of oranges. What is more, the undisputed
facts establish that plaintiff did not rely and was not dependent
upon the Regional Center to relocate J.C. because Hargis Home—
of which plaintiff was the administrator—had the power, by
regulation and contract, to evict J.C. on its own, and because it
knew that the Regional Center lacked the unilateral power to
relocate J.C. because relocation was contingent upon a new
facility accepting J.C. as a resident.
2. Even if the Regional Center had the ability (and
thus duty) to control J.C., any such duty would be to protect
J.C.—not to protect plaintiff
As noted above, even when a duty arises by virtue of a
special relationship, that duty is actionable only if that special
relationship gives rise to a legal duty of care for the benefit of—
20
and hence to protect—the plaintiff (or the class of persons to
which the plaintiff belongs). (Regents, supra, 4 Cal.5th at p. 621.)
To the extent regional centers have the ability to control
consumers, the sole duty that could arise from that control is the
duty to benefit—and hence to protect—the consumer. As a
general matter, the focus of the Act itself is providing services
and support—and, critically, protection—to the developmentally
disabled person who is the consumer. (E.g., §§ 4502, subds. (b)(1)
& (b)(8) [“persons with developmental disabilities shall have . . .
[a] right to treatment and habilitation services and supports” and
“[a] right to be free from harm, including unnecessary physical
restraint, or isolation, excessive medication, abuse, or neglect”],
4620.3, subd. (g)(1) [best practices for regional centers “shall not .
. . [e]ndanger a consumer’s health or safety”].) Nothing in the Act
or any of its attendant regulations evinces any intent to create a
duty to protect anyone else, including the employees of
residential facilities where consumers are housed.
Plaintiff resists this conclusion as well. Specifically, he
points to a regulation specifying that a “regional center” that
receives notice from a residential facility that “the facility can no
longer meet the needs of [a] consumer” “shall relocate [a]
consumer within 30 days or within a time frame which has been
mutually agreed[] upon” and “shall” “determine” “[a]ny additional
measures necessary to meet the consumer’s health and safety
needs until the relocation has been accomplished.” (Cal. Code
Regs., tit. 17, § 56016, subds. (e), (f) & (g).) Plaintiff urges that
this regulation creates a legal duty that obligates regional centers
to protect everyone from injury inflicted by a consumer; plaintiff
thus goes on to assert that “whether [this regulation] is directly
21
intended to protect only [J.C.] or [instead] other residents and
staff as well is irrelevant.”
Plaintiff is wrong.
As a threshold matter, plaintiff’s argument conflates a duty
of care with a standard of care. “The duty of care establishes
whether one person has a legal obligation to prevent harm to
another [citation], while the standard of care defines what that
person must do to meet that obligation and thus sets the
standard for assessing whether there has been a breach
[citation].” (Issakhani, supra, 63 Cal.App.5th at p. 934.) By
defining a time period during which relocation should occur and
what a regional center should do in the interim, this regulation
defines what a regional center must do to meet its obligations; in
other words, it lays out a standard of care. “The standard of care
presupposes a duty [of care]; it cannot create one.” (Id. at p. 935.)7
And even if we assume that the regulation counsels in favor
of recognizing a duty to protect, that duty runs solely to the
consumer—and not to the employees of the residential facility
where a consumer is housed because, as noted above, the Act is
concerned with the well-being of the consumer, not those who
come into the consumer’s orbit. Plaintiff disagrees, citing a
different regulation that obligates a regional center to “initiate
[an] emergency relocation of [a] consumer” should various
7 The undisputed facts also establish that the Regional
Center complied with this standard of care: Although it did not
move J.C. within 30 days of receiving notice, doing so unilaterally
was—as explained above—beyond its power. However, the
Regional Center immediately conducted a statewide search for a
new facility, asked five facilities to accept J.C., and provided
additional support personnel for J.C. during the pendency of its
search.
22
“situations” “come to [its] attention,” including “[t]he presence of
an individual exhibiting aggressive or assaultive behavior which
is life threatening to self or others.” (Cal. Code Regs., tit. 17, §
56053, subds. (e)(1) & (a)(5), italics added.) Plaintiff urges that
the italicized language evinces an intent to protect the staff of a
residential facility from the “aggressive or assaultive behavior” of
a consumer. But this misreads the regulation, as this provision
refers to “individual[s]”—not “consumers”—exhibiting potentially
injurious behavior; because the regulation uses the terms
“individual” and “consumer” distinctly (id., subd. (a)), we reject
plaintiff’s attempt to conflate them and treat them as
synonymous. As written, the regulation can be read consistently
with the Act itself to implement the Act’s intention to protect
consumers who might be harmed by that “individual[’s]”
behavior.
3. Even if the Regional Center had a duty to
control J.C. that triggered a legal duty to protect others, public
policy disfavors the recognition of liability for breach of that duty
Plaintiff asserts that harm to residential facility staff, other
residents and anyone else within striking distance of a
developmentally disabled person is reasonably foreseeable when
that person has previously exhibited aggressive or violent
behavior. The Regional Center does not strenuously disagree
with that assertion. Although a regional center’s inability to
relocate a consumer on its own (that is, without the willingness of
a different residential facility to accept the consumer) tends to
render less close the connection between a regional center’s
conduct and the injury suffered, we will assume for the sake of
argument that the injury suffered by third parties at the hands of
23
persons whose developmental disabilities render them aggressive
or violent is reasonably foreseeable.
But do countervailing public policy considerations militate
against holding a regional center liable for such a consumer’s
behavior if the center’s attempts to relocate have yet to prove
successful?
Yes, they do. The Rowland factors dictate this answer.
The moral blame attaching to the Regional Center’s
conduct is minimal. Because it is a private, nonprofit
organization, the Regional Center had no profit motive for its
conduct. More to the point, the Regional Center did not ignore
Hargis Home’s May 2018 letter requesting relocation; to the
contrary, it actively conducted a statewide search for a new
residential facility to house J.C. and also provided Hargis Home
with additional personnel to monitor J.C. while the search was
ongoing. Given these efforts, which plaintiff does not prove—or
even allege—were unreasonable, the Regional Center’s inability
to relocate J.C. immediately was not morally blameworthy.
Imposing liability on regional centers would also not
prevent future harm to third parties injured by developmentally
disabled persons at a residential facility after a regional center
has been asked to relocate the person. That is because regional
centers do not have the unilateral power to relocate consumers;
their power to do so is contingent upon the acceptance of the
consumer by another residential facility, a contingency over
which they do not have control. Although plaintiff tries to limit
the scope of liability to injuries to residential facility staff if
relocation takes longer than the 30-day default period set forth in
one regulation, this limitation is artificial and unlikely to
withstand scrutiny: If a regional center is to be liable for injuries
24
inflicted by a developmentally disabled person after the center
receives notice of that person’s propensity for aggression or
violence, there is little basis for denying liability if an injury
occurs 29 days after a relocation request or is inflicted upon
another resident or guest rather than an employee of the
residential facility. As noted above, this is why the regulation
sets out a standard of care that at best provides the presumptive,
default standard for breach; but it does not define the scope of the
legal duty of care. Because, as this case indicates,
developmentally disabled persons sometimes have a propensity
for aggressive and violent behavior, and because regional centers
are tasked with evaluating those persons in order to assess
appropriate residential placements, regional centers will usually
be aware of consumers’ propensities; thus, if liability is imposed
against regional centers due to their awareness of such
propensities, they will become de facto insurers against all
injuries inflicted by anyone whose services and support they
coordinate whenever such a consumer acts on that propensity.
(Accord, Regents, supra, 4 Cal.5th at p. 634 [expressing hesitation
when the imposition of liability will convert a class of defendant
into “the ultimate insurers of all . . . safety”].) Imposing 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.
Imposing liability on regional centers for injuries inflicted
by the consumers whose services and support the centers
coordinate would impose a crushing burden on those centers,
which are the very backbone of the body of organizations the
Lanterman Act uses to dispense support and services to the
population of developmentally disabled persons in California. As
25
explained above, holding regional centers liable for injuries
inflicted by consumers may well drive them out of business.
Because regional centers play a “vital” role in the administration
of the Lanterman Act (Morohoshi, supra, 34 Cal.4th at p. 488
[regional centers play a “vital” role]; § 4620, subd. (b) [regional
centers have a “special and unique nature”]), their extinction is
likely to collapse the entire ecosystem of the Act, thereby
depriving developmentally disabled persons of much needed
services and support. Even if imposing liability does not
exterminate regional centers, the imposition of tort liability is
likely to skew how the centers conduct their business—and,
critically, skew it in a way that is inconsistent with the stated
purposes of the Lanterman Act. (Accord, Castaneda, supra, 41
Cal.4th at pp. 1210, 1216 [imposing liability on landlords not to
rent property to “gang members” imposes unacceptable burden on
landlord because it “would tend to encourage arbitrary housing
discrimination” on the “basis of race, ethnicity, family
composition, dress and appearance, or reputation”].) For
instance, regional centers wishing to avoid liability for injuries
inflicted by the consumers they serve will err on the side of
placing those consumers in the most restrictive residential
facilities; but that is at odds with the Act’s mandate to place
consumers in the “least restrictive environment.” (§ 4502, subd.
(b)(1).) Along similar lines, and as the trial court noted, regional
centers facing liability will inevitably factor the potential for
liability into their decisionmaking when it comes to services and
support; but that is at odds with the Act’s focus on what is best
for the consumer (rather than on what is best for the regional
center’s risk management strategy). These burdens are
particularly unwarranted where, as here, the plaintiff already
26
has another available remedy for injuries—namely, workers’
compensation. Citing Kesner, plaintiff urges that we may not
consider the likely burdens of imposing liability; plaintiff
misreads Kesner, which declares irrelevant any consideration of
how recognizing a duty would impose liability for past acts, but
allows a forward-looking assessment of the burdens that the
recognition of tort liability would impose. (Kesner, supra, 1
Cal.5th at p. 1152.)
The imposition of liability may or may not be mitigated by
the availability of insurance. Plaintiff observes that Hargis
Home is able to obtain insurance. But Hargis Home has control
over the premises where its employees work and its residents
live. 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 relocate consumers on their
own, and hence lack the ability to mitigate (or, for that matter,
even manage) liability arising from the failure to relocate.
On balance, these factors resoundingly favor the conclusion
that regional centers should not be liable in tort to residential
facility employees for failing to relocate a developmentally
disabled person despite a facility’s request to do so.
* * *
In light of our analysis, we have no occasion to reach the
further issue of whether plaintiff has assumed the risk of injury
from Hargis Home’s developmentally disabled residents by
agreeing to be employed as the facility’s administrator.
27
DISPOSITION
The judgment is affirmed. The Regional Center is entitled
to its costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
28