Doe v. Dep't of Children & Family Servs.

• Decision Date: 20 June 2019
• Docket Number: B276699
• Court: California Court of Appeals Court of Appeals
• Parties: Jane DOE, Plaintiff and Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Defendants and Respondents.

37 Cal.App.5th 675

250 Cal.Rptr.3d 62

Jane DOE, Plaintiff and Appellant,

v.DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Defendants and Respondents.

B276699

Court of Appeal, Second District, Division 8, California.

Filed June 20, 2019

As Modified July 18, 2019

Mahoney Law Group, Kevin Mahoney, Anna Salusky Mahoney and Shawn I. Pardo, Long Beach, for Plaintiff and Appellant.

Beach Cowdrey Jenkins, Thomas A. Beach and Mindee J. Stekkinger, Oxnard; Greines, Martin, Stein & Richland, Timothy T. Coates and Carolyn Oill, Los Angeles, for Defendants and Respondents Department of Children and Family Services and Valerie Arnold.

Horvitz & Levy, Frederic D. Cohen, Dean A. Bochner, Burbank; Beach Cowdrey Jenkins, Thomas A. Beach and Mindee J. Stekkinger, Oxnard, for Defendants and Respondents Children's Institute, Inc. and Vanessa Sykes.

BIGELOW, P. J.

Jane Doe appeals from a judgment of nonsuit and postjudgment awards of attorney fees and costs. Doe sued the Los Angeles County Department of Children and Family Services (DCFS) as well as a private foster care agency for negligence and failure to perform statutorily mandated duties, which she claims resulted in sexual abuse by her foster mother's two sons. Doe contends the defendants were not entitled to nonsuit and that the trial court erred when it denied her request to file a fifth amended complaint, admitted evidence of consent, and awarded attorney fees and costs to the defendants. We affirm the judgment of nonsuit and the attorney fees order, but reduce the amount of costs by $6,988.37.

FACTS

Doe was placed in foster care at a very young age. She has spent most of her life moving between different foster homes and group homes. From March to September 2009, 17-year-old Doe lived in the foster home of Stephanie Sykes. Doe told her social worker that her placement in the Sykes home was the best she had ever had. While there, Doe began a sexual relationship with Sykes's 27-year-old son, Dwayne Winston, and became pregnant with his child. Doe alleged Dwayne lived in the garage when she was first placed there, but at some point during her stay, he moved into his own apartment. Doe kept their relationship secret from her social workers. She told them the father of her baby was her friend, Darryl Cathcart. She did not disclose that Dwayne was the father until after the baby was born.

At the end of May, Sykes had to attend an out-of-town funeral and asked her younger son, 22-year-old Clifford Winston, to look after Doe for the weekend. She did not inform the social worker that she was leaving town for the weekend. Clifford took Doe to his house, and while she was there, he raped her. Doe did not report the rape because Dwayne persuaded her to keep it secret so his mother would not lose her license and his brother would not get in trouble. DCFS immediately removed Doe from the Sykes home when she informed her social worker about the rape four months later, on September 28, 2009.

In April 2011, Doe sued Sykes, her sons, the County of Los Angeles, her county social worker, Children's Institute, Inc., and the director of foster care at Children's Institute.¹ Children's Institute is a nonprofit agency that, among other services, screens foster parents, certifies foster homes, and monitors the foster homes. Children's Institute certified Sykes, placed Doe at her home, and assigned one of its social workers to monitor the home while Doe was there.

The case progressed to trial after Doe rejected a $100,000 settlement offer from Defendants. ( Code Civ. Proc., § 998.)² The first trial ended in a mistrial and a second trial commenced in 2016.

By then, Defendants had whittled Doe's causes of action against them to the following four: violation of the Child Abuse and Neglect Reporting Act (second cause of action; Pen. Code, § 11165 ); negligence (fourth cause of action); negligence per se (fifth cause of action); and negligent hiring, supervision, retention, and management (sixth cause of action). In support of her negligence claims, Doe alleged Defendants failed to fulfill their mandatory statutory duties, including visiting her at least three times during her first month of placement and meeting with Sykes at least once a month. Does also alleged Defendants negligently failed to properly screen Sykes and her sons before placing Doe and did not adequately monitor her.

Defendants moved for nonsuit at the close of Doe's case-in-chief. The trial court granted the motion, finding Defendants did not have a duty to protect against criminal acts of third parties where there was no knowledge of their propensities or that criminal misconduct was imminent. Doe appealed from the judgment of nonsuit.

After judgment was entered, Defendants submitted a memorandum of costs. The trial court granted, in part, Doe's motion to tax costs. The trial court also granted the County's motion for attorney fees pursuant to section 2033.420 on the ground Doe wrongfully denied its requests for admission (RFAs). Doe's appeal from the postjudgment orders was consolidated with her appeal from the judgment for nonsuit.

DISCUSSION

I. The Trial Court Properly Granted Nonsuit

Doe asserts Defendants were not entitled to nonsuit because the trial court improperly relied on caselaw addressing the duty an adult owes to minors invited into her private home, which is a lower standard than Defendants' mandatory duties to a foster child in their care. In support of her argument, Doe distinguishes between the duties owed by the County, a public entity, which are based in statute, and those owed by the Children's Institute, a private entity, which are based in common law.³ In either case, Doe essentially alleges Defendants were negligent in failing to perform their duties.⁴ Doe, however, failed to present sufficient evidence to permit the jury to find in her favor.⁵

A. Standard of Review

"A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded ....’ A mere ‘scintilla of evidence’ does not create a conflict for the jury's resolution; ‘there must be substantial evidence to create the necessary conflict.’ " ( Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291, 253 Cal.Rptr. 97, 763 P.2d 948.)

In response to a motion for nonsuit, a plaintiff has the right, upon request, to reopen her case to remedy defects raised by the motion. ( Eatwell v. Beck (1953) 41 Cal.2d 128, 131–132, 257 P.2d 643 ; S. C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 538, 30 Cal.Rptr.2d 286.) However, the right to present further evidence is waived unless the plaintiff also makes an offer of proof, describing the evidence and explaining how it would cure the deficiencies. ( Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1337, 96 Cal.Rptr.2d 364.)

We review a grant of nonsuit de novo. ( Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060, 111 Cal.Rptr.3d 173.) " ‘In an appeal from a judgment of nonsuit, the reviewing court is guided by the ... rule requiring evaluation of the evidence in the light most favorable to the plaintiff.’ " ( Marvin v. Adams (1990) 224 Cal.App.3d 956, 960, 274 Cal.Rptr. 308, quoting from Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838, 206 Cal.Rptr. 136, 686 P.2d 656 ( Carson ).) However, a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture. ( Carson, supra , 36 Cal.3d at p. 839, 206 Cal.Rptr. 136, 686 P.2d 656.)

B. The Negligence Cause of Action Against Children's Institute

Doe asserted Children's Institute was negligent in screening Sykes's home, certifying it, placing Doe there, and monitoring Doe's placement. However, there was no evidence Children's Institute owed Doe a duty to protect her from the Winston brothers because their sexual abuse was not foreseeable or imminent. Thus, the evidence presented by Doe was insufficient for the jury to find in her favor and nonsuit was properly granted.

1. Applicable Law

To prevail in a negligence action, a plaintiff must show the defendant owed a legal duty to her, the defendant breached that duty, and the breach proximately caused injury to the plaintiff. ( Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145, 12 Cal.Rptr.3d 615, 88 P.3d 517.) A defendant does not owe a legal duty to protect against third party conduct, unless there exists a special relationship between the defendant and the plaintiff. ( Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159.) In that circumstance, "[i]n addition to the special relationship ..., there must also be evidence showing facts from which the trier of fact could reasonably infer that the [defendant] had prior actual knowledge , and thus must have known , of the offender's assaultive propensities. [Citation.]" ( Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1084, 107 Cal.Rptr.2d 801 ( Romero ).) In short, the third party's misconduct must be foreseeable to the defendant. ( Delgado, supra , 36 Cal.4th at p. 244, 30 Cal.Rptr.3d 145, 113 P.3d 1159 ; Romero, supra , 89 Cal.App.4th at p. 1081, 107 Cal.Rptr.2d 801.)

In J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 391–393, 99 Cal.Rptr.3d 5 ( J.L. ), for example, a minor referred to a home day care by the Children's Institute⁶ was sexually assaulted by the grandson of the day care provider. The Court of Appeal affirmed the summary judgment granted in favor of Children's Institute, finding there was no evidence it knew of the grandson's assaultive tendencies. (Id. at pp. 395–399, ...