Case Name: Doe. v.Go Kids, Inc., et al.
Case No.: 2016-1-CV-298548

Before the Court is the motion for summary judgment/summary adjudication brought by Defendant, Go Kids, Inc.

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following findings and order.

According to the allegations of the complaint, between April 2014 and mid-June 2014, six-year old plaintiff Jane Doe (“Plaintiff”) was sexually molested by defendant Alberto Ramirez (“Alberto”), the husband of defendant Josefina Ramirez (“Josefina”), with the assistance of Josefina and Josefina Ramirez Family Day Care (“Day Care”). (See complaint, ¶¶ 2-6, 10.) Defendant Go Kids, Inc. (“Go Kids”) contracts with licensed day care providers to provide child care services, claiming to provide quality assurance, training, technical support and monthly home visit consultations in order to provide quality care. (See complaint, ¶ 2.) On April 11, 2014, Go Kids arranged for Doe to be provided day care services performed by Josefina and Day Care. (See complaint, ¶ 2.) After learning from a July 2015 news broadcast that Alberto was arrested for multiple counts of lewd acts upon a child, and that Doe told her mother that Alberto also touched her, on August 15, 2016, Plaintiff, a minor, by and through her Guardian ad Litem, Raquel Doe, filed a complaint against defendants Go Kids, Josefina, Alberto and Day Care, asserting causes of action for: sexual abuse of a minor; negligence; and, intentional infliction of emotional distress. The lone cause of action against Go Kids is for negligence.

Go Kids moves for summary judgment, or, in the alternative, for summary adjudication of issues of duty.

Defendant Go Kids, Inc.’s Motion For Summary Judgment, Or In The Alternative, For Summary Adjudication

Defendant’s burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Go Kids may not seek adjudication of “issues” that are not issues of duty absent a stipulation pursuant to Code of Civil Procedure section 437c, subdivision (t).

Go Kids moves for summary judgment, and in the alternative, moves for summary adjudication of four “issues.” The first issue is that Go Kids cannot be liable for negligence because it does not have a duty to protect against an unforeseen criminal assault. The second through fourth issues regarding vicarious liability and nondelegable duties are not “issues of duty” pursuant to Code of Civil Procedure section 437c, and thus require a stipulation pursuant to subdivision (t). Go Kids does not present such a stipulation. The motion for summary adjudication of the second through fourth purported issues are DENIED.

Go Kids meets its initial burden to demonstrate that it did not owe Plaintiff a legal duty to protect an unforeseen criminal assault

Go Kids argues that Plaintiff cannot demonstrate that Go Kids owed her a legal duty, relying on J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388. In J.L., supra, nonprofit corporation Children’s Institute Inc. (“CII”) had a master contract with the State of California to provide childcare services through its own licensed day care facilities for eligible families, and also contracted with 45 day care homes to which eligible families may be referred. (Id. at p.391.) The family day care homes with whom CII contracted were required to be licensed with the Department of Social Services Community Care Licensing. (Id.) CII’s case manager visited the home twice monthly. (Id. at p.392.) During the period of time between plaintiff’s initial visit with the home and the molestation of the victim, the file did not indicate that there were any reports or observations of problems at the home. (Id.) Before the molestation, the plaintiff expressed concern of the presence of two male adults present at the home, and the contractee/licensee indicated that they were her grandchildren and assured the plaintiff that they would remain outside doing mechanical work and that individuals needed to be authorized to be present at the home. (Id. at pp.392-393.) A month later, the plaintiff saw a 14-year old boy playing with things inside the day care area, and expressed concern to CII’s case manager. (Id. at p.393.) CII’s case manager personally observed the boy at the home and asked the contractee/licensee regarding his presence, to which the contractee/licensee responded that the boy was her grandson who was on vacation. (Id.) CII’s case manager observed that the boy was present at some but not all of her subsequent visits to the home, was never near any of the children as he was always in the garage or backyard, and was neither suspicious nor concerned by the boy’s presence as she never observed or received a report about a lack of supervision by the contractee/licensee or any inappropriate behavior by the boy, the case manager never received any information indicating that the boy had a history of sexual abuse, and the victim referred to the boy as his friend. (Id.) In affirming the trial court’s granting of summary judgment, the J.L. court stated:

… Although appellant has repeatedly maintained that it was foreseeable something “bad” would happen because E.Y. was in the house, he proffered no evidence suggesting that E.Y. had a history of sexual misconduct or that CII was aware of any such history. Indeed, there was no evidence suggesting that any child had suffered any type of injury in the Yglesias home prior to the attack on appellant. Nor did appellant offer evidence that any type of criminal or violent incident had previously occurred in the Yglesias home. Although Yglesias testified that E.Y. told her he had been in fights in school, there was no evidence that Yglesias had conveyed this information to CII. (See Romero v. Superior Court, supra, 89 Cal.App.4th at p. 1088, 107 Cal.Rptr.2d 801 [minor assailant’s history of misconduct irrelevant to the determination of duty because defendants were unaware of it]; accord, Margaret W., supra, 139 Cal.App.4th at p. 158, fn. 22, 42 Cal.Rptr.3d 519.) Because there was no evidence showing CII had actual knowledge of E.Y.’s assaultive tendencies or that he posed any risk of harm, his conduct was not foreseeable and CII owed no duty to protect against the attack.

… Here … appellant proffered no evidence showing that CII maintained or was aware of Yglesias maintaining any problem area in her home making the possibility of an assault reasonably foreseeable. The undisputed evidence established that the attack on appellant was unforeseeable.

The J.L. court also noted that the plaintiff’s theories regarding vicarious liability based on a breach of a nondelegable duty or a theory of ostensible agency lacked merit. (Id. at pp. 400-407.)

In support of its motion, Go Kids presents evidence similarly demonstrating that it was not actually aware of Alberto’s history of sexual misconduct or any type of prior criminal or violent incidents at Day Care until July 14, 2015 when Alberto was arrested for sexual abuse. (See Def.’s separate of undisputed material facts in support of motion for summary judgment, nos. (“UMFs”) 1-48.) However, unlike the situation in J.L., supra, Go Kids apparently concedes that there is evidence that Alberto had a history of sexual misconduct at Day Care; however, it asserts that it did not know about that history. A declaration from Kendra Bobsin states that “[a]fter this lawsuit was filed, [she] learned of a May 30, 2014 Child Care Licensing Facility Evaluation Report pertaining to a November 2013 complaint of sexual abuse regarding Day Care, but that neither Josefina nor Child Care Licensing provided the evaluation report to Go Kids, and thus Go Kids did not know of the existence of that report. (See Bobsin decl., ¶ 25.) Go Kids meets its initial burden to demonstrate that the cause of action for negligence lacks merit against it for lack of a legal duty owed by Go Kids to Plaintiff.

In opposition, Plaintiff demonstrates the existence of a triable issue of material fact.

In opposition to the motion, Plaintiff presents deposition testimony from Josefina who stated that: on May 30, 2014, she signed the report indicating sexual abuse by Alberto; an employee from Go Kids, Angelica Munoz, visited her home on June 12, 2014; the report was posted at the time of the visit; and she gave/showed the report to Angelica Munoz and Mary, and told Maria in the office, but was told that they didn’t need it yet. (See Pl.s evidence, exh. 5 (“Josefina depo”), pp.45:16-24, 47:23-25, 48:1-16, 49:12-23, exh. 6.) Here, this evidence demonstrates the existence of a triable issue of material fact as to whether Go Kids knew, or were on notice of Alberto’s history of sexual misconduct.

In reply, Go Kids asserts that it is “[i]mmaterial” that it was provided the report because the report indicated that it was inconclusive as to whether the sexual abuse happened. (See Def.’s separate statement in response to Pl.’s additional material facts, no. 148.) As Angelica Martin stated, however, for purposes of the report, “inconclusive” means that although there is insufficient evidence to prove, it is “highly likely” that it occurred. (See Pl.’s evidence, exh. 4 (“Martin depo”), p.32:13-22.) The Court disagrees with Go Kids’ characterization that the complaint of sexual abuse is immaterial; on the contrary, the complaint of sexual abuse is highly relevant to the issue of whether Go Kids knew, or were on notice of Alberto’s history of sexual misconduct.

As Plaintiff demonstrates the existence of a triable issue of material fact, the motion for summary judgment, and the motion for summary adjudication of the issue of duty to protect against an unforeseen criminal assault is DENIED.

As Go Kids does not object to the above cited evidence, the Court need not rule on Go Kids’ other objections to evidence, as they are not material to the court’s decision. (Code of Civil Procedure §437c(q).)