Filed 8/29/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JASPER RICE et al.,
Plaintiffs and Appellants,
A114953
v.
(Humboldt County
Super. Ct. No. DR050780)
CENTER POINT, INC., et al.,
Defendants and Respondents.
Plaintiffs Jasper Rice and Jennifer Asbury appeal from a judgment dismissing
their complaint for negligence in which they alleged that defendants Center Point, Inc.
(Center Point) and Humboldt Recovery Center, Inc. (HRC) were liable for the criminal
behavior of four residents who injured plaintiffs after escaping from defendants’ drug
rehabilitation program. The trial court granted defendants’ motion for judgment on the
pleadings on the ground that defendants did not owe plaintiffs a legal duty of care to
control the criminal behavior of the residents of their treatment facility. We affirm.
Factual and Procedural History
Plaintiffs filed a complaint against defendants alleging a single cause of action for
negligence and negligent infliction of emotional distress. The complaint alleges that on
July 23, 2004, plaintiffs were attacked, stabbed and seriously injured by four California
Department of Corrections (CDC) inmates who had been placed in and escaped from a
nearby residential substance abuse treatment facility operated by HRC. The facility,
which was licensed by the California Department of Alcohol and Drug Programs (ADP),
provides “a non-hospital 24-hour residential substance abuse program” and also “a
special treatment program for ‘criminal justice clients.’ ” Center Point held a contract
with the CDC pursuant to which inmates participated in HRC’s residential treatment
program.
1
On the night in question, the “inmates stole a non-secured knife from the kitchen
of the subject HRC site, and thereafter escaped from the subject HRC site.” The
“inmates traveled to the Cooper Gulch Park area, where they subsequently attacked,
stabbed, and seriously injured plaintiffs.”
The complaint alleges that “as a licensed and/or certified residential treatment
facility, HRC had a legal duty to comply with ADP’s health and safety licensing
requirements including but not limited to HRC’s plan of operation, reporting
requirements, personnel requirements, admission agreements, building and grounds
compliance, outdoor and indoor activity space, fixtures, equipment, and site security.”
Similarly, “Center Point had a legal duty, among other things, to ensure that the subject
HRC facilities complied with ADP licensing and/or certification requirements, reasonable
security precautions, and to ensure that CDC inmates did not escape from the HRC
residential treatment sites.” “Center Point and/or HRC negligently and/or recklessly
failed to provide and/or enforce reasonable security measures at the HRC site.”1
Defendants moved for judgment on the pleadings on the ground that “as a matter
of law and public policy, [plaintiffs’] claims cannot be asserted against the rehabilitation
facility.” In opposition, plaintiffs included the following additional facts in their
memorandum of points and authorities:2 “Prior to and including July 23, 2004, HRC was
1
Although the complaint includes the quoted allegation that defendants’ failure to
act was reckless, plaintiffs did not assert a cause of action for gross negligence or
intentional misconduct. On appeal, plaintiffs acknowledge that their complaint “alleges a
cause of action for general negligence against HRC and its alter ego Center Point.”
Consistent with their pleading, plaintiffs argue that defendants are liable for plaintiffs’
injuries because they failed to exercise “ordinary care” in the management of the facility
and control of their residents.
2
These facts were beyond the scope of the motion because they were not alleged in
the complaint or subject to judicial notice. (Angelucci v. Century Supper Club (2007) 41
Cal.4th 160, 166.) Nonetheless, the additional facts were considered by the court and, as
discussed below, ultimately included in a proposed amended complaint. Accordingly, we
too assume these factual allegations to be true for the purpose of determining whether the
complaint states a cause of action or could be amended to state a cause of action.
2
supposed to have, in operable working condition, an alarm system to detect whether any
of its residents improperly left the facility. On July 23, 2004 the alarm system at HRC
was nonfunctional and had been nonfunctional for a substantial period of time. As a
result, late in the evening of July 22 or early in the morning of July 23, 2004, when the
four CDC residents of HRC slipped out of the facility through a window, the alarm did
not alert the HRC staff that these residents had improperly exited the building. (HRC
residents are required to remain in the facilities after dark.) [¶] Prior to and including July
23, 2004, HRC was supposed to secure all knives used for eating, including ‘steak
knives’ it kept on site. Contrary to state requirements, HRC did not lock up its knives. As
a result, one or more of the four CDC residents that slipped out of the window on July 22
or 23, 2004, took a ‘steak knife’ that was then used in the attack on plaintiffs. [¶] Prior to
and including July 23, 2004, HRC was supposed to have staff employees on site 24 hours
per day. HRC did have staff 24 hours per day, but the employee working the evening that
HRC’s four CDC residents wrongfully exited the residential facility was an individual on
parole, that was not supposed to be around other parolees or [CDC] inmates. This
employee, upon learning that the 4 clients had wrongfully vacated the residential facility,
did not contact law enforcement for fear that he would be arrested for violating his
parole. [¶] The four clients that wrongfully exited HRC’s residential facility had been
released to HRC by the CDC through a drug treatment program to finish out the few
remaining months of their sentences. To qualify for this program, inmates could not have
a conviction of a violent crime such as murder or rape. One of the four clients, Javier
Zamorano, the individual mainly responsible for injuring plaintiffs, had been convicted
and was serving prison time for assault with a deadly weapon, which is listed as a violent
crime under the California Penal Code. Mr. Zamorano should not have been participating
in the drug treatment program, and HRC knew or should have known this fact and that
Mr. Zamorano posed a significant danger to the neighborhood in which the residential
facility was located . . . .” The trial court granted defendants’ motion without leave to
amend on the ground that as a matter of public policy defendants did not owe a duty to
plaintiffs to exercise reasonable care to control the wrongful conduct of their residents.
3
Shortly thereafter, plaintiffs filed a motion for reconsideration based on newly
discovered facts that had become available after the Eureka Police Department produced
in discovery its investigation report of the incident. Plaintiffs’ motion relied on
statements in the police report that were made by Mr. Reed, the HRC house manager.
The report included an admission by Reed that he did not live onsite at the subject
facility. In addition, although defendant was required to conduct and record participant
counts four times daily, “Mr. Reed admitted he normally performed random head counts
on the inmates/HRC clients, but the times were sporadic. Mr. Reed further admitted there
was no documentation except a check box list, which did not accurately reflect the time
of those checks. Mr. Reed estimated that on or about July 23, 2004, he had set the alarm
at the subject HRC facility at approximately 10:30 p.m. or 11:00 p.m. Then he had
returned to another HRC facility approximately ½ block away.” Finally, the police report
indicated that despite policies requiring that all knives be secured, “there was no
accountability” for knives kept at the HRC facility. These new facts, as well as those
included in plaintiffs’ opposition to the original motion, were included in a proposed
amended complaint submitted with the motion for reconsideration.
While the trial court acknowledged that “the newly discovered facts further
support plaintiffs’ allegations of negligence in the operation of the treatment facility,” it
concluded nonetheless that the facility did not owe a duty to plaintiffs based on the
special relationship between defendants and their residents. Plaintiffs filed a timely notice
of appeal.
Discussion
“In an appeal from a motion granting judgment on the pleadings, we accept as true
the facts alleged in the complaint and review the legal issues de novo. ‘A motion for
judgment on the pleadings, like a general demurrer, tests the allegations of the complaint
or cross-complaint, supplemented by any matter of which the trial court takes judicial
notice, to determine whether plaintiff or cross-complainant has stated a cause of action.
[Citation.] Because the trial court’s determination is made as a matter of law, we review
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the ruling de novo, assuming the truth of all material facts properly pled.’ ” (Angelucci v.
Century Supper Club, supra, 41 Cal.4th at p. 166.)
“ ‘[I]n order to prove facts sufficient to support a finding of negligence, a plaintiff
must show that the defendant had a duty to use due care, that he breached that duty, and
that the breach was the proximate or legal cause of the resulting injury.’ [Citation.] The
existence of a duty is a question of law to be decided by the court.” (Hansra v. Superior
Court (1992) 7 Cal.App.4th 630, 639.)
As a general rule, “one owes no duty to control the conduct of another, nor to warn
those endangered by such conduct.” (Davidson v. City of Westminster (1982) 32 Cal.3d
197, 203; Beauchene v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 342, 347
(Beauchene).) An exception to this rule has been recognized, however, where a special
relationship exists between the defendant and either the person whose conduct needs to
be controlled or the foreseeable victim of the third party’s conduct. (Beauchene, supra, at
p. 347.)
Here, it is clear that defendants did not owe a duty to the plaintiffs as the
foreseeable victims of the residents’ criminal conduct. Such a duty is imposed only where
the injury is foreseeable and the intended victim is identifiable. (Thompson v. County of
Alameda (1980) 27 Cal.3d 741, 752-753, citing Tarasoff v. Regents of University of
California (1976) 17 Cal.3d 425, 439 [“Although the intended victim as a precondition to
liability need not be specifically named, he must be ‘readily identifiable’ ”].) Contrary to
plaintiffs’ suggestion, the proximity of the park in which they were attacked to the HRC
facility does not render plaintiffs identifiable or otherwise separate them from other
members of the general public.
Johnson v. State of California (1968) 69 Cal.2d 782, 799, relied upon by plaintiffs,
does not contradict this conclusion. In that case, the court held that the State had a duty to
warn a foster parent “of any matter that its agents knew or should have known that might
endanger [her] family; at a minimum, these facts certainly would have included
‘homicidal tendencies, and a background of violence and cruelty’ as well as the youth’s
criminal record.” (Id. at p. 786.) The court relied on well established authority that
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“impose[s] a duty upon those who create a foreseeable peril, not readily discoverable by
endangered persons, to warn them of such potential peril.” (Ibid.) Unlike a specifically
identifiable foster parent, plaintiffs were not identifiable simply because they were
present in or resided near the park.
The more difficult question is whether a special relationship existed between
defendants and their residents giving rise to a duty owed to the public to exercise
reasonable care to control the criminal conduct of their residents. In Beauchene, supra, 88
Cal.App.3d 342, the court concluded that public policy considerations preclude the
imposition of such a duty on the operators of a rehabilitation facility. In that case, it was
alleged that a private rehabilitation center negligently allowed a resident with a long
history of behavioral difficulties, criminal confinement and escape attempts to leave its
facility without permission. The escapee went on a “crime spree” and shot plaintiff. (Id.
at p. 345.) Balancing “ ‘the public interest in safety from violent assault’ [citation] against
the public policy favoring innovative criminal offender release and rehabilitation
programs,” the court refused to impose a duty on such programs toward potential crime
victims with whom failed parolees or probationers may come in contact. (Id. at pp. 347348.) The court explained, “Although appellant’s injuries may be grievous, ‘(o)f
paramount concern is the detrimental effect a finding of liability would have on prisoner
release and rehabilitation programs. Were we to find a cause of action stated we would in
effect be encouraging the detention of prisoners in disregard of their rights and society’s
needs.’ [Citation.] Each member of the general public who chances to come into contact
with a parolee or probationer must risk that the rehabilitative effort will fail.” (Id. at
p. 348.)
Subsequently, in Cardenas v. Eggleston Youth Center (1987) 193 Cal.App.3d 331
(Cardenas), a minor resident of a youth group home who “ ‘was a violent and
unpredictable’ person,” left the open facility on a “pass” and attacked the plaintiff at a
convenience store (id. at p. 333). The plaintiff claimed the operator of the home “ ‘had a
duty to the general public, and the plaintiff in particular to exercise such custody and
control [of the minor] to protect the general public and the plaintiff from [his] violent and
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unpredictable behavior.’ ” (Ibid.) The court disagreed, holding that the policy concerns
cited in Beauchene militated against finding a duty to control residents of the facility.
“Forced to choose between the competing interests presented in this case, we must, like
the Beauchene court, without in the least minimizing the seriousness of the injury to the
individual, defer to the imperative policy objective of encouraging innovative release and
rehabilitation programs for criminal offenders.” (Id. at pp. 335-336.)
Plaintiffs acknowledge the holdings of Beauchene and Cardenas and the public
policy articulated in those decisions. They argue, however, that pubic policy does not
dictate that a residential treatment facility avoid liability if it is poorly or negligently
operated. Plaintiffs assert “that the court must reasonably draw a line somewhere in a
[residential treatment facility’s] continuum of conduct for the purpose of accountability.”
Plaintiffs distinguish Beauchene and Cardenas on the ground that unlike in those cases,
defendants here negligently “failed to follow state mandated procedures in the operation
of its [residential treatment facility] that not only caused the brutal attack on plaintiffs,
but facilitated the attack.”
Although plaintiffs refer to “state mandated procedures,” they have not identified
any specific statute, ordinance or regulation that defendants’ conduct allegedly violated.
The basis of the asserted requirements is allegedly found in “defendants’ written policies
and procedures, and/or terms of the written agreements formed between defendants and
the State of California.” Although not entirely clear from the complaint, the written
agreement with the state to which plaintiffs refer presumably is HRC’s plan of operation
submitted to the Department of Alcohol and Drug Programs as part of the licensing
process. (Cal. Code Regs., tit. 9, § 10517, subd. (a)(2).)3 Plaintiffs have not, however,
3
California Code of Regulations title 9, section 10517, subdivision (a), provides,
“As a condition of licensure, each applicant shall submit to the Department the following
documents with the application for licensure: [¶] . . . [¶] (2) A current, written, plan of
operation, containing at least: [¶] (A) A statement of program goals and objectives;
[¶] (B) An outline of activities and services to be provided by the licensee; [¶] (C) A
statement of the facility's resident admission policies and procedures; [¶] (D) Assurance
of nondiscrimination in employment practices and provision of benefits and services on
7
attached the plan of operation as an exhibit to their complaint or indicated which
provisions of that agreement allegedly were violated by defendants. Nonetheless, because
any deficiency in this regard likely could be cured by amendment, we shall assume that
plaintiffs could properly plead a violation of a specific provision of defendants’ plan of
operation. 4
Plaintiffs’ attempt to distinguish Beauchene and Cardenas based on the violation
of specific safety procedures, however, is not persuasive. HRC’s failure to follow
applicable operational policies or procedures did not give rise to a duty where none
otherwise existed. Defendants’ failure to comply with applicable safety regulations would
at most demonstrate a lack of reasonable care, i.e. breach of the duty of care if such a
duty were first determined to exist.
the basis of race, color, national origin, religion, sex, or mental or physical disabilities,
pursuant to Title VI of the Civil Rights Act of 1964 (Section 2000d, Title 42, United
States Code), the Rehabilitation Act of 1973 (Section 794, Title 29, United States Code);
the Americans with Disabilities Act of 1990 (Section 12132, Title 42, United States
Code); Section 11135 of the California Government Code; and Chapter 6 (commencing
with Section 10800), Division 4, Title 9 of the California Code of Regulations. [¶] (E) A
copy of the facility's resident admission agreement; [¶] (F) A table of the administrative
organization of the facility. [¶] (G) A staffing plan, job descriptions, and minimum staff
qualifications; [¶] (H) A sketch of the grounds, showing buildings, driveways, fences,
storage areas, pools, gardens, recreation areas, and other space used by residents; [¶] (I)
Floor plans which describe the dwelling capacity, intended use, and dimensions of the
rooms; [¶] (J) Sample menus and a schedule for one calendar week, indicating the times
of day that meals are to be served; and [¶] (K) Consultant and community resources to be
utilized by the facility as part of its program.”
4
Plaintiffs have not asserted that the violation of the licensing agreement gives rise
to a separate private right of action by plaintiffs. (See Crusader Ins. Co. v. Scottsdale Ins.
Co. (1997) 54 Cal.App.4th 121, 131 [whether a statute or regulation creates a private
right of action is a question of legislative intent resolved by examination of the language
and purpose of the statutory provisions].) Rather, as discussed above, plaintiffs argue that
the violation of the agreement supports their claim for negligence. (See id. at p. 126
[distinguishing between “the issue of whether a statute creates a wholly new private right
to sue, and the use of a statute to establish an element of a preexisting common law cause
of action”].)
8
Plaintiffs acknowledge that “[w]hether a duty is owed is simply a shorthand way
of phrasing what is ‘ “the essential question—whether the plaintiff’s interests are entitled
to legal protection against the defendant’s conduct.” ’ ” (J'Aire Corp. v. Gregory (1979)
24 Cal.3d 799, 803.) Indeed, “duty ‘ “is a shorthand statement of a conclusion, rather than
an aid to analysis in itself. . . . But it should be recognized that ‘duty’ is not sacrosanct in
itself, but only an expression of the sum total of those considerations of policy which lead
the law to say that the particular plaintiff is entitled to protection.” [Citation.]’ [Citation.]
. . . [¶] . . . [¶] . . . [I]n considering the existence of ‘duty’ in a given case several factors
require consideration including ‘the foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s
conduct, the policy of preventing future harm, the extent of the burden to the defendant
and consequences to the community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of insurance for the risk
involved.’ ” (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 749-750.) In
Beauchene and Cardenas, the courts concluded that the public policy of encouraging
rehabilitation of criminal offenders, the lack of foreseeability of injury to an identifiable
person, and the fact that the risk of injury is shared by all members of the general public
militate against the imposition of a duty to exercise ordinary care in these circumstances.
The balance is not altered because defendants allegedly violated a particular policy or
procedure.
Although plaintiffs do not characterize their argument as such, their theory of
liability is comparable to the theory of negligence per se. The negligence per se
presumption, however, operates only to establish a lack of due care. “The presumption of
negligence created by Evidence Code section 669 concerns the standard of care, rather
than the duty of care.” (Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 430.)
For the presumption to come into play, “either the courts or the Legislature must have
created a duty of care.” (Ibid.) “[A]n underlying claim of ordinary negligence must be
viable before the presumption of negligence of Evidence Code section 669 can be
9
employed. . . . ‘[I]t is the tort of negligence, and not the violation of the statute itself,
which entitles a plaintiff to recover civil damages. . . .’ ” (California Service Station etc.
Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1178.) “The statute
. . . serves the subsidiary function of providing evidence of an element of a preexisting
common law cause of action.” (Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54
Cal.App.4th 121, 125.)
Accordingly, defendants alleged failure to comply with any policy or procedures
for the safe operation of a residential drug treatment facility does not alter the sound
conclusion reached in Beauchene and Cardenas that a residential treatment facility does
not owe a duty to the general public to exercise ordinary care to control the criminal
behavior of its program participants. Contrary to plaintiffs’ assertion, this conclusion
does not leave residential treatment facilities unaccountable for public safety. As noted
above, HRC’s facility is licensed by the State of California and is subject to oversight by
the Department of Alcohol and Drug Programs. Failure to comply with applicable state
regulations or defendants’ written agreement with the State can result in civil penalties or
the revocation of the facility’s license. (Health & Saf. Code, § 11834.36 [grounds for
suspension, revocation, or denial; modification of terms and conditions of license;
temporary suspension]; see also Cal. Code Regs., tit. 9, §§ 10544 [licensing compliance
reviews], 10547 [civil penalties], 10548 [suspension or revocation of license].)
Finally, we must determine whether the trial court abused its discretion in denying
plaintiffs leave to amend their complaint. (Foundation for Taxpayer & Consumer Rights
v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 135.) “ ‘Denial of leave to
amend after granting a motion for judgment on the pleadings is reviewed for abuse of
discretion. [Citation.]’ [Citation.] To show an abuse of discretion, the plaintiff has the
burden of demonstrating that ‘there is a reasonable possibility the plaintiff could cure the
defect with an amendment.’ ” (Ibid.) Here, plaintiffs have not explained what facts they
might add that would give rise to a duty to them. Their broad suggestion that additional
facts might be uncovered through discovery is insufficient to justify prolongation of the
action.
10
Disposition
The judgment is affirmed. Defendants are to recover their costs on appeal.
_________________________
Pollak, Acting P. J.
We concur:
_________________________
Siggins, J.
_________________________
Horner, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
11
Trial court:
Humboldt County Superior Court
Trial judge:
Honorable Christopher G. Wilson
Counsel for plaintiff and appellant:
Bradford C. Floyd
Counsel for defendant and respondent
Humboldt Recovery Center, Inc.:
MAIRE & BEASLEY
Wayne H. Maire
Cheryl A. Miskei
Counsel for defendant and respondent
Center Point, Inc.:
MITCHELL, BRISSO, DeLANEY & VRIEZE
Paul A. Brisso
William F. Mitchell
A114953
12
