C.F. v. Alternative Family Services

Filed 6/4/26 CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE C.F., a Minor, etc., et al., Plaintiffs and Respondents, A170226, A171966 v. (Sonoma County ALTERNATIVE FAMILY Super. Ct. No. SCV-264540) SERVICES, INC., Defendant and Appellant. A foster family agency (FFA) is a nonprofit organization that, among other things, screens, approves, supports, and supervises homes for foster children. (See Health & Saf. Code, § 1502, subd. (a)(4).) Plaintiffs and respondents C.F., E.F., and S.F. (plaintiffs) were sexually abused in a foster home approved and supervised by defendant and appellant Alternative Family Services, Inc. (defendant), an FFA. Plaintiffs sued defendant, as well as the foster parents, and a jury found defendant negligent. The jury awarded plaintiffs $24.7 million in damages, assigning 60 percent of the responsibility to defendant, 35 percent to the foster father who perpetrated the abuse, and 5 percent to the foster mother. * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts V and VI of the Discussion. 1  While both sides concede defendant owed plaintiffs a duty of care, they sharply disagree on the scope of that duty. Plaintiffs argue the trial court properly instructed the jury that defendant had a duty to protect them, without any limitations on that duty based on a consideration of the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland). Defendant contends that, under Rowland, the general duty of care should be restricted, such that it had no duty to protect plaintiffs from sexual abuse absent actual knowledge that the foster father presented a risk of such abuse. We disagree with both positions. As we discuss below, the defendant’s position restricts its duty of care too much and provides inadequate protection to foster children, one of the state’s most vulnerable populations. Plaintiffs’ position on the duty of care, which the trial court adopted, is too broad. It fails to recognize the important role FFAs play in our foster care system and to appropriately account for the connection between a defendant’s conduct and the injury suffered and moral blame for the harm. A proper balancing of the Rowland factors imposes liability on an FFA where it knew or should have known of a risk of abuse by a particular foster parent. The trial court’s instructions were in error because they permitted the jury to find defendant liable absent a showing it knew or should have known of the risk presented by the foster father. However, because defendant has not shown a reasonable probability the jury would have reached a different verdict had it been properly instructed, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Defendant is an FFA founded in 1978 that helps place children into foster homes. Defendant approves foster homes for placement and counties make the actual placements. 2  Plaintiffs entered the foster care system in April 2018, after their father left them in a car for 11 hours while he was at a casino. At the time of foster care placement, plaintiffs were six years old (C.F.), five years old (S.F.), and two years old (E.F.). After a screening process, defendant approved the home of Mark and Marta Martinez as a foster care placement on April 15. Plaintiffs were placed in the Martinez home on April 16. Plaintiffs were removed from the Martinezes’ home on June 25, 2018, after behavior by one of the children during a visit with plaintiffs’ biological father created a suspicion of sexual abuse. Plaintiffs were interviewed at the Redwood Children’s Center, and C.F. and E.F. described sexual abuse by Mr. Martinez. He subsequently confessed to sexually abusing C.F. on multiple occasions and was arrested. He ultimately pled guilty to two counts of sexual abuse, one against C.F. and one against E.F. The social worker who interviewed S.F. concluded that he had witnessed the sexual abuse of his siblings. One of plaintiffs’ experts testified that it was more likely than not that S.F. was abused as well. In May 2019, plaintiffs sued the Martinezes, defendant, and Does 1 through 30. At the time of trial, there were two remaining causes of action against defendant—negligence and negligent breach of mandatory duties. The jury trial began in September 2023. Plaintiffs’ Evidence Plaintiffs presented evidence that defendant was negligent in approving the Martinezes and in supervising the home during plaintiffs’ placement. Craig Barton, designated by defendant as the person most qualified to address the safety and supervision of foster children, acknowledged that 3 defendant was obligated to keep foster children safe from sexual abuse by foster parents. He acknowledged that such abuse is a “known danger.” Dr. Elizabeth Jeglic and Dr. Sylvia Pizzini testified as experts for plaintiffs. Dr. Jeglic explained that “children in foster care are particularly vulnerable to childhood sexual abuse” and “are sexually abused at higher rates.” Thus, “it is vital that [youth-serving organizations] have strict policies and procedures in place to prevent victimization.” Dr. Pizzini testified that child safety “is the cornerstone of the child welfare services, in general, and certainly for placements in a certified foster home.” Adding to the risk is the circumstance that pedophiles will seek out opportunities to gain access to children. Plaintiffs presented evidence to show defendant violated four California Department of Social Services (CDSS) regulations in approving the Martinezes’ home. Dr. Pizzini explained that the CDSS “through its Community Care Licensing division issues regulations that are required by statute,” governing “how [FFAs] are reviewed and assessed.” Defendant was required to comply with each of the regulations before approving a foster home. First, plaintiffs presented evidence to show defendant violated CDSS’s FFA Interim Licensing Standards (Licensing Standards) section 88331.5(a), 1 which requires separate individual interviews with each prospective foster 1 The then-current version of the Licensing Standards was effective March 23, 2018. The current version of the Licensing Standards, effective February 1, 2023, is available at <http://www.cdss.ca.gov/Portals/9/CCL/Childrens-Residential- Licensing/ILS/FFA_ILSv6.pdf> (as of June 4, 2026). The past versions are available at <https://www.cdss.ca.gov/inforesources/childrens- residential/resources-for-providers/laws-and-regulations> (as of June 4, 2026). 4 parent. Ms. Martinez said in a deposition that she was never interviewed alone and she was not aware of Mr. Martinez being interviewed alone. Defendant’s report listed four interviews with “Marta and Mark.” Dr. Pizzini opined the regulation was violated. Second, plaintiffs presented evidence to show defendant violated former Licensing Standards section 88331.5(c), which provided, “The majority of interviews shall take place in the home of an applicant.” 2 Defendant’s report stated that there were two interviews totaling six hours at defendant’s office and two totaling three hours at the Martinez home. Dr. Pizzini opined the regulation was violated. Third, plaintiffs presented evidence to show defendant violated former Licensing Standards section 88331.5(d), which required FFAs to complete “psychosocial assessment[s]” of prospective foster parents. The required “risk assessment . . . shall include”: “(A) Past and current alcohol and other substance use and abuse history. [¶] (B) Physical, emotional, sexual abuse and family domestic violence history. [¶] (C) Past and current physical and mental health.” (Former Licensing Standards, § 88331.5(d)(3).) 3 On a questionnaire completed by Mr. Martinez during the screening process, he 2 Although defendant does not raise the issue on appeal, that was actually not the effective language in April 2018. Effective March 2018, version 3 of the Licensing Standards was adopted, providing, as does the current version, that “[o]ne of the required interviews shall take place in the home of an applicant . . . .” (Licensing Standards, § 88331.5(a)(1)(C), italics added; see fn. 1, ante.) 3 Although there are no material differences, these were not the Licensing Standards in effect when the Martinezes were approved in April 2018. (See fn. 1, ante.) In the version then in effect and the current version, the reference to “a psychosocial assessment” is in a definitions section and the risk assessment requirements are in Licensing Standards section 88331.5(b)(4). (See fn. 1, ante.) 5 left nine of 26 questions unanswered. 4 The unanswered inquiries included questions regarding whether he suffered childhood sexual and physical abuse; who of his family members had been sexually or physically abused; whether he or anyone in his family had been suspected of sexual or physical abuse; whether he or anyone in his family had viewed child pornography; whether he or anyone in his family had been suspected of child neglect; whether he or anyone in his family had been arrested or convicted of a criminal offense; and whether he or anyone in his family had a history of mental illness or suicidal behavior. Mr. Martinez had answered “no” to separate questions as to whether he had been sexually or physically abused and “no” to a question whether he possessed or viewed sexually explicit content. In a deposition, Ms. Martinez stated her husband was never questioned regarding the blanks on the questionnaire in the screening interviews. Dr. Pizzini opined the regulation was violated; she stated that the failures to answer were “red flag[s]” and it was “critical” for the home approver to discuss the nonanswers and document the discussions. Fourth, plaintiffs presented evidence to show defendant violated Licensing Standards section 88431.1, which provides that a prospective foster parent “shall be in good physical and mental health.” Ms. Martinez stated at a deposition that defendant did not ask any questions about mental health during the screening process. She said her husband had a lot of personality changes after sustaining a shoulder injury at work in 2015; he was more stressed, had trouble concentrating and understanding some things, and sometimes behaved erratically. She stated that, if she had been asked, she 4 The questionnaire was part of a tool called the Structured Analysis Family Evaluation (SAFE) adopted by defendant to vet foster parent applicants. Following the SAFE home study is considered the best practice in approving foster parents. 6 would have told defendant that she had seen changes in her husband’s mental health after his injury and that he needed therapy. During the criminal proceedings, Mr. Martinez was diagnosed with a delusional disorder. Dr. Pizzini opined that the CDSS regulation was violated. She also opined that a person with delusional disorder is not a safe foster parent. Plaintiffs also presented evidence to show defendant was negligent in approving the Martinezes because it failed to comply with its own policies. For example, plaintiffs’ experts testified that it was a violation of defendant’s safety policies to fail to provide a resource family manual to the Martinezes. Defendant also failed to interview all five of the Martinezes’ adult children and to contact and/or document the Martinezes’ references, as required by their policies. Plaintiffs’ experts also criticized defendant’s failure to follow up on Mr. Martinez’s answer on a questionnaire that “sexual relations” were a “major area[] of conflict” with his wife. Dr. Pizzini explained that “[i]t’s important . . . to question the applicants about . . . what’s going on in the sexual relationships, and how does it affect their communication with each other, their relationship, and, more importantly, how does it spill out into their other relationships? Are there potentials for taking sexual frustrations and carrying them out with other people, . . . especially children in this case.” Dr. Jeglic explained that if a parent is “not getting their sexual needs met, they may try to meet them with a child within the home.” In a deposition, defendant’s expert agreed that was a “risk factor” that the home approver should have followed up on. Finally, plaintiffs presented evidence to show defendant was negligent in supervising the Martinezes. First, defendant failed to remove the children after Ms. Martinez expressed concern that they could not speak Spanish. 7 The Martinezes had requested Spanish-speaking children and only one or two. Dr. Pizzini opined that it was a violation of the standard of care not to respect the Martinezes’ linguistic and numerical preferences and that, after Ms. Martinez expressed her concerns, defendant should have removed plaintiffs. Second, defendant conducted no unannounced visits in the 70 days plaintiffs were in the Martinezes’ home, and defendant’s caseworker met with the children in private only twice for a total of 17 minutes. Third, defendant failed to follow up on observations of plaintiffs sitting on Mr. Martinez’s lap, which Ms. Martinez stated occurred in front of a caseworker. Defendant’s Evidence In 2017 and 2018, the typical process for approval of a foster family began when a prospective foster parent contacted defendant’s office. After an initial screening, the application was forwarded to an “approver.” The approver would conduct a further preliminary screening and, if suitable, the parents would be invited to participate in trainings. The approver would visit the family’s home and conduct further screenings, and, once the home was ready for placement, the approver would make a final inspection. Mark and Marta Martinez were referred to defendant by another FFA in 2017. Married since 1991, they raised five children, three of whom were from Ms. Martinez’s prior marriage. There were no indications of child sexual abuse involving any of the five children. The Martinezes also served as foster parents with another FFA for about six years, during which they fostered around 10 children total. There is no indication any of those children were abused. The Martinezes passed FBI, Department of Justice, and Child Abuse Central Index background checks and there is no indication they had any arrests, criminal convictions, or involvement with Child Protective Services. 8 Defendant’s approver, Lisa Van Zantwyk, did not observe any symptoms of delusional disorder during the nine hours of interviews or 16 hours of training with the Martinezes. Ms. Martinez told defendant that her husband’s injury did not affect his functioning and indicated on her questionnaire that her husband did not have any mental health issues. One of the Martinezes’ daughters testified that she did not observe any changes in her father’s behavior after 2015 and that she was unaware of any mental illness her father may have experienced after 2015. Ms. Van Zantwyk testified that, although she did not recall the specifics of her interviews, she would have asked Mr. Martinez about his questionnaire response that sexual relations were an area of conflict with his wife. She explained that she would not have referenced the discussion in her report if the issue “was talked out and determined between us that there is not an issue.” As to the questions Mr. Martinez did not answer on the questionnaire, Ms. Van Zantwyk testified it was not uncommon for applicants to leave questions unanswered and it was her practice to obtain answers to the questions during the interviews. She only documented that follow up in her report if there was a problem. The report states that Mr. Martinez “reported that he did not have any childhood or adolescent history of physical, sexual or emotional abuse.” The report also states he “reported no psychiatric history” and nothing in his adult history “indicate[s] that he has ever been suspected of, charged with or investigated for child abuse, neglect or failure to protect a child.” Although her written report does not mention it, Ms. Van Zantwyk testified it was her “standard practice” to meet with couples “together, and then separately.” The reason for separate interviews is because a prospective foster parent “will share more openly if it’s them alone in the room. They’ll 9 disclose typically more information about what has happened from birth till now.” It was her consistent practice for 15 years to conduct such separate interviews and she had no reason to believe she did not do so in this case. It was not her practice to “separate[] out the time for the separate interviews” in her reports. As part of the screening process, defendant obtained a reference for the Martinezes from a social worker from their previous agency who worked with the Martinezes between 2008 and 2013, facilitating approximately nine foster placements. The social worker told defendant “the family was wonderful with the foster children in placement and [had] no allegations during their time with them and she highly recommends them to continue as foster parents.” Defendant obtained another positive reference from one of the Martinezes’ adult daughters. On the form, she answered that she was “[v]ery comfortable” allowing her parents to “care for [her] child permanently if [she] were unable to do so.” She testified she grew up with foster siblings and never witnessed any sexual abuse or other concerning behavior by her father. The Martinezes had five grandchildren and two great-grandchildren, and she was unaware of any allegations of sexual abuse involving them. Defendant also received references from another daughter and two friends. During plaintiffs’ placement, defendant’s caseworker, Yuliana Hernandez, visited the home to “make sure [the plaintiffs] were safe and that their needs were being met.” She visited weekly for 90 minutes. During her visits, Ms. Hernandez interacted with both the Martinezes and plaintiffs, to make sure the plaintiffs were safe and comfortable. She also spoke with plaintiffs privately. She observed no red flags during the visits and no specific signs of child abuse. She never saw the plaintiffs sit on Mr. 10 Martinez’s lap. An unannounced visit was not required within the 70-day placement. Four Sonoma County social workers who met with plaintiffs while they were placed with the Martinezes observed no indications of abuse. Defendant’s Motions and the Verdict After plaintiffs’ case-in-chief, defendant moved for nonsuit, arguing there could be no liability because there was no evidence defendant had actual knowledge of Mr. Martinez’s propensity for sexual abuse. The trial court denied the motion. Following the conclusion of evidence, both parties moved for a directed verdict. Defendant argued, again, that liability required evidence of actual knowledge of Mr. Martinez’s propensity to commit abuse. As to defendant, plaintiffs argued, among other things, that the regulatory violations showed both negligence per se and negligence because the violations were contrary to the standard of care. The trial court denied both motions, except it granted plaintiffs C.F. and E.F. a directed verdict as to Mr. Martinez. In December 2023, the jury found defendant negligent and awarded plaintiffs a total of $24.7 million in damages. The jury apportioned fault as follows: 35 percent to Mark Martinez, 5 percent to Marta Martinez, and 60 percent to defendant. The trial court entered judgment in January 2024. The court denied defendant’s motion for new trial and for judgment notwithstanding the verdict and defendant appealed (No. A170226). In October 2024, the trial court entered an amended judgment including over $4.6 million in costs. Defendant appealed (No. A171966) and this court consolidated the appeals. 5 5 This court received amicus curiae briefs in support of defendant from American Property Casualty Insurance Association, California Alliance of 11  DISCUSSION I. The State’s Interest in Protecting Foster Children From Sexual Abuse It is well established that “[o]ne of society’s highest priorities is to protect children from sexual or physical abuse.” (Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1078–1079; see also Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1137 (Youth Soccer) [“our society recognizes that the protection of children from sexual abuse is a paramount goal”].) “The goal of the foster care system is to provide for the health, safety, and well-being of children and adolescents while fostering reunification or an alternative permanency arrangement (adoption, guardianship, placement with relatives, or independent living) when reunification is not possible.” (Szilagyi, M.D., Ph.D., et al., Health Care Issues for Children and Adolescents in Foster Care and Kinship Care (Oct. 2015) vol. 136, No. 4, Pediatrics e1131– e1140 (Szilagyi).) 6 Most children in foster care have a history of child abuse, neglect, or exposure to domestic violence. (Szilagyi, supra.) They are separated from their communities and other family members who can serve as natural protectors, increasing their vulnerability. Once in foster care, children are exposed to a higher risk of sexual abuse. (Trivedi, The Harm of Child Removal (2019) 43 N.Y.U. Rev. L. & Soc. Change 523, 542–543; Child and Family Services, Nonprofits Insurance Alliance of California (NIAC), and David and Margaret Home, Inc.; and in support of plaintiffs from Children’s Advocacy Institute, Panish Shea Ravipudi LLP, and Consumer Attorneys of California. 6 Szilagyi, supra, is available at <https://publications.aap.org/pediatrics/article/136/4/e1131/73819/Health- Care-Issues-for-Children-and-Adolescents-in?autologincheck=redirected> (as of June 4, 2026). 12 Mushlin, Unsafe Havens: The Case for Constitutional Protection of Foster Children from Abuse and Neglect (1988) 23 Harv. C.R.-C.L. L.Rev. 199, 205.) Accordingly, the state’s interest in protecting foster children from sexual abuse in foster homes cannot be overstated. II. The Role of FFAs and the Insurance Availability Dilemma “FFAs are nonprofit entities that contract with county placing departments to find placements for children who require more intensive care than a typical foster family home, usually as an alternative to a group home or short-term residential therapeutic program. FFAs recruit, certify, and train foster parents and provide social workers and other support to these foster families.” (Cal. Dept. of Insurance, Ins. Comr. Ricardo Lara, Notice (Aug. 23, 2024) p. 1 (2024 Commissioner Lara Notice); 7 see also Health & Saf. Code, § 1502, subd. (a)(4) [defining FFAs].) 8 There are more than 200 FFAs in California. (2024 Commissioner Lara Notice, p. 1.) Over 6,700 children were supported by FFAs in foster family homes in the 2024–2025 fiscal year. 9 7 The 2024 Commissioner Lara Notice is available at <https://www.insurance.ca.gov/0250-insurers/0300-insurers/0200- bulletins/bulletin-notices-commiss-opinion/upload/Notice-Foster-Family- Liability-Insurance-Availability-August-2024.pdf> (as of June 4, 2026). Defendant’s January 3, 2025 request for judicial notice of the 2024 Commissioner Lara Notice is granted. (Evid. Code, § 452, subds. (c) & (h).) The request for judicial notice is otherwise denied as unnecessary to resolution of the present appeal. 8 Some counties perform the FFA functions rather than contracting with private FFAs. (See Health & Saf. Code, § 1502, subd. (a)(4).) The parties do not address whether liability issues differ when counties perform the functions of an FFA, and that question is beyond the scope of this decision. 9 (Cal. Dept. of Social Services, Local Assistance Estimates for the 2026–27 Governor’s Budget, Caseload Projections (2026) pp. 33–34 13  According to the Legislature, “It is the public policy of the State of California that foster family agencies or noncustodial adoption agencies, also known as FFAs, provide necessary services to vulnerable youth throughout the state and are integral to the foster care system.” (Code Civ. Proc., § 1062.31.) In particular, FFAs serve the state’s policy in favor of home- based placements over institutional placements, as reflected in the 2015 Continuum of Care Reform Act. (See Stats. 2015, ch. 773, § 1(a); see also In re A.M. (2020) 53 Cal.App.5th 824, 834.) The act’s preamble recites that “research demonstrates that being cared for in a family improves outcomes for children who have experienced abuse and neglect.” (Stats. 2015, ch. 773, § 1(c)(4).) In recognition of the state’s interest in protecting foster children, FFAs are required to be licensed (Cal. Code Regs., tit. 22, § 88005) and are subject to numerous regulations governing approval and supervision of foster families. (See, e.g., Welf. & Inst. Code, § 16519.5; Health & Saf. Code, §§ 1502, subd. (a)(4), 1506, 1530; Cal. Code Regs., tit. 22, § 88000 et seq.) These regulations include screening requirements expressly intended to protect foster children from sexual abuse. (See, e.g., Welf. & Inst. Code, § 16519.5, subd. (d)(2)(A)(i)(III); Cal. Code Regs., tit. 22, § 88019.2; Licensing Standards, § 88331.5(b)(4)(B); see fn. 1, ante.) An FFA that violates regulations may be subject to penalties, including license revocation. (Health & Saf. Code, § 1550.) <https://www.cdss.ca.gov/Portals/9/Additional-Resources/Fiscal-and- Financial-Information/LOcal-Assistance-Estimates/2026-27/2026-27- caseload-packet.pdf> [as of June 4, 2026].) We take judicial notice of the FFA caseload data in the document at the weblink. (Evid. Code, § 452, subds. (c) & (h).) 14  In 2024, Insurance Commissioner Ricardo Lara concluded that “many of the state’s more than 200 nonprofit [FFAs] are on the verge of losing their risk pooling liability coverage, without which they cannot legally operate.” (2024 Commissioner Lara Notice, p. 1; see fn. 7, ante.) He explained, “Over the past few decades, due to an increase in claims, changing risk appetites, and other market conditions, most insurers left or are leaving the insurance market that previously provided commercial liability insurance coverage for these nonprofit FFAs. As a result, this has left a single nonprofit pooled risk arrangement – the Nonprofits Insurance Alliance of California (NIAC) – with providing this required coverage for approximately 90% of the FFAs operating in California.” (2024 Commissioner Lara Notice, p. 1.) He continued, “Primarily due to recent high-valued court judgment settlements against FFAs, . . . the NIAC began issuing nonrenewal notices to some FFAs last month as well as pausing acceptance of coverage for new FFAs. . . . This lack of coverage will likely force many FFAs to start shuttering their programs, thus upending the stability of the foster children and youth that they serve. On a larger scale, thousands of foster children and youth are potentially at risk of losing their current FFA placement.” (Id. at p. 2.) 10 Commissioner Lara’s notice concluded with an exhortation for “all property and casualty insurance companies licensed or doing business in California to initiate or expand their offerings for this coverage to FFAs so that these 10 In its amicus curiae brief, NIAC explains, “Insurers are leaving the market because the risk involved with insuring FFAs is untenable.” The brief continues, “NIAC cannot insure FFAs in the current environment because it cannot reasonably calculate the value of future claims” and “NIAC was forced to cease insuring FFAs in California at the insistence of its reinsurers.” 15 important agencies can continue to serve thousands of children and youth in the state’s foster care system.” (2024 Commissioner Lara Notice, p. 2.) A subsequent notice from Commissioner Lara dated October 22, 2025, stated that “[t]o date, no insurers have submitted a rate filing to my Department that would initiate or expand their offerings for coverage to FFAs.” (Cal. Dept. of Insurance, Ins. Comr. Ricardo Lara, Notice (Oct. 22, 2025) p. 1 (2025 Commissioner Lara Notice).) 11 III. Negligence Law and the Rowland Factors “To establish a cause of action for negligence, the 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.’ ” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 (Brown).) “Whether a duty exists is a question of law to be resolved by the court,” while breach and causation are questions for the factfinder. (Ibid.; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 769, 772–774 (Cabral).) Although each person has a duty to act with reasonable care (Civ. Code, § 1714), “ ‘one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.’ [Citation.] ‘A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 (Regents).) “A duty to control, warn, 11 The 2025 Commissioner Lara Notice is available at <https://www.insurance.ca.gov/0250-insurers/0300-insurers/0200- bulletins/bulletin-notices-commiss-opinion/upload/Notice-Foster-Family- Liability-Insurance-Availability-October-2025-FINAL.pdf> (as of June 4, 2026). Defendant’s November 10, 2025 request for judicial notice of the 2025 Commissioner Lara Notice is granted. (Evid. Code, § 452, subds. (c) & (h).) 16 or protect may be based on the defendant’s relationship with ‘either the person whose conduct needs to be controlled or [with] . . . the foreseeable victim of that conduct.’ [Citations.] Specifically, a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct.” (Ibid.) “Similarly, a duty to warn or protect may be found if the defendant has a special relationship with the potential victim that gives the victim a right to expect protection.” (Ibid.; see also id. at p. 627 [“there is generally no duty to protect others from the conduct of third parties. The ‘special relationship’ doctrine is an exception to this general rule”]; Brown, supra, 11 Cal.5th at p. 215 [“In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another’s harm if that person is in what the law calls a ‘special relationship’ with either the victim or the person who created the harm”].) “A special relationship between the defendant and the victim is one that ‘gives the victim a right to expect’ protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that ‘entails an ability to control [the third party’s] conduct.’ [Citation.] Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect. [Citations.] The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly.” (Brown, supra, 11 Cal.5th at p. 216.) FFAs undoubtedly have a special relationship with the foster children they serve. As explained previously (part I, ante), foster children are a 17 uniquely vulnerable population. FFAs have an extraordinary impact on the fate of foster children, given that they screen, recommend, and monitor foster parents, and foster children have little ability to protect themselves if placed in an unsuitable home. (See Regents, supra, 4 Cal.5th at p. 620 [special relationship generally has an “aspect of dependency in which one party relies to some degree on the other for protection”]; see also Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 670–673 (Archbishop) [surveying special relationship cases].) Accordingly, the court in Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 683 (Doe v. Los Angeles), which involved an FFA defendant, stated “there is no real dispute that Children’s Institute” (an FFA) “had a special relationship with Doe” (a foster child). (See also D.G. v. Orange County Social Services Agency (2025) 108 Cal.App.5th 465, 471 (D.G.).) 12 Even where there is a special relationship, courts may create an exception “from the general rule of duty . . . if other policy considerations clearly require” it. (Regents, supra, 4 Cal.5th at p. 628.) In Rowland, supra, 69 Cal.2d 108, the California Supreme Court “identified several factors that may, on balance, justify excusing or limiting a defendant’s duty of care. These include: ‘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 12 Arguably there is also a special relationship between an FFA and a foster parent it screens, approves, and supervises. (See, e.g., Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435–439 (Tarasoff) [special relationship between a therapist and his patient created duty to exercise reasonable care to protect third persons from patient’s violence].) However, we need not determine whether we also may find a duty based on that relationship, because it is clear there is a special relationship between an FFA and the foster children it serves. 18 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.’ [Citation.] These factors must be ‘evaluated at a relatively broad level of factual generality.’ [Citation.] In considering them, we determine ‘not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.’ [Citation.] In other words, the duty analysis is categorical, not case specific.” (Regents, at pp. 628–629.) “By making exceptions . . . only when foreseeability and policy considerations justify a categorical no-duty rule, we preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make.” (Cabral, supra, 51 Cal.4th at p. 772; accord, Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1144 (Kesner).) “The Rowland factors fall into two categories. The first group involves foreseeability and the related concepts of certainty and the connection between plaintiff and defendant. The second embraces the public policy concerns of moral blame, preventing future harm, burden, and insurance availability. The policy analysis evaluates whether certain kinds of plaintiffs or injuries should be excluded from relief.” (Regents, supra, 4 Cal.5th at p. 629.) Rowland and its progeny “recognize that even when two parties may be in a special relationship, the unforeseeability of the kind of harm suffered by the plaintiff or other policy factors may counsel against establishing an 19 affirmative duty for one party to protect the other.” (Brown, supra, 11 Cal.5th at p. 219.) IV. Application of the Rowland Factors The present category of cases consists of negligence claims against FFAs based on sexual abuse of foster children due to allegedly negligent screening and supervision of foster parents. Defendant argues the duty to protect should be limited: liability should attach only where an FFA had actual knowledge of the risk of harm. Plaintiffs argue no limitation on the duty to protect is justified. We adopt a different position: FFAs have a duty to protect foster children from sexual abuse where an FFA knew or should have known a foster parent presented a risk of such harm. 13 As explained below, although the sexual abuse of foster children is generally foreseeable, other Rowland factors—the closeness of the connection between the negligence and the harm, moral blame, and the limited availability of insurance—weigh against liability absent at least constructive knowledge of a specific risk of harm, and the prevention of sexual abuse does not require imposition of liability based on general foreseeability alone. A. Foreseeability Factors 1. Foreseeability of Harm “ ‘The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care . . . is whether the injury in question was foreseeable.’ [Citations.] In examining 13 Defendant frames the knowledge question as “notice of the molester’s assaultive propensities.” That is too narrow. It is possible that other types of information will indicate that the foster parent presents a risk of sexual abuse. For example, information that a foster parent was sexually molested as a youth might be information indicative of a risk, even though such information is not about propensity per se. 20 foreseeability, ‘the court’s task . . . “is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally 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.” ’ ” (Regents, supra, 4 Cal.5th at p. 629.) “For purposes of duty analysis, ‘ “foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.” . . . [I]t is settled that what is required to be foreseeable is the general character of the event or harm . . . not its precise nature or manner of occurrence.’ ” (Kesner, supra, 1 Cal.5th at p. 1145.)