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1.         26CV00564, Dionne v. City of Santa Rosa

Petitioners Rick Dionne and Jennifer Dionne (“Petitioners”) filed the instant petition against respondents City of Santa Rosa (“Respondent” or “City”) and Does 1-50 for relief from untimely government claim under Gov. Code § 946.6.

This matter is on calendar to address the substantive relief of the Petition.  

I.                   Procedural Issues

The Court previously issued a tentative ruling on May 13, 2026, addressing the Petition in part, and continued the matter for supplemental briefing on three questions:

1. Is the failure to build adequate drainage decades ago a continuous or permanent nuisance?

2. Are such issues impacted in any significant way by the Government Claims Act?

3. Does Petitioners’ failure to timely act on previous claims affect their ability to pursue a continuous nuisance claim?

The parties submitted simultaneous supplemental briefing. The Court largely reiterates the matters previously addressed in the tentative ruling in order to produce a cohesive record, and to clarify the analysis. While the Court does address Petitioner’s relevant new arguments to the degree they are material, the conclusions drawn below are not moved by the supplemental briefing, nor was it the Court’s intent in allowing supplemental briefing for that to occur.

II.                Underlying Facts

The Petition seeks relief from the July 22, 2025, denial of an untimely claim issued by the Respondent in response to Petitioner’s request to present late claim. Petitioners filed the Petition on January 12, 2026. The claim attached to the Petition was presented to Respondent on April 11, 2025, raising a claim for injury or damage resulting from a flooding incident that occurred on February 4, 2025. Petitioner’s Declaration of Erin Carlstrom in Support (“Carlstrom Dec.”), Ex. 1. Petitioners describe the incident, in part as “Rain incident contributing to saturation of hillside, slumping and sloping of property, home foundation and alteration of floor elevations due to City approved non-installation of a rip rap v-ditch for drainage beyond the rear of the property.” Ibid. Respondent issued a rejection of late claim on May 13, 2025.

In Opposition, Respondent provides evidence showing that Petitioners have submitted multiple similar claims in prior years. On March 22, 2021, Petitioners submitted a claim averring that the Respondent failed to properly inspect and deny approval of the development plans, resulting in “improper tun-off [sic] onto (Petitioners’) property”, resulting in “(s)lumping and sloping of (Petitioners’) home, foundation, and property with cracks, cracking, and altered floor elevations.” Declaration of Kelly Leonhardt in Opposition (“Oppo. Dec.”), Ex A (“2021 Claim”). Respondent served a rejection letter on May 5, 2021. Id. at Ex. B. On March 25, 2024, Petitioners again filed a claim form with Respondent. Oppo. Dec., Ex. C (“2024 Claim”). Therein, they averred that the City failed to adequately inspect by signing off the drainage ditch “AS BUILT”. They averred that the missing v-ditch “created adverse water at the toe of the slope, causing saturation of our hillside, slumping and sloping of our property, home foundation and alteration of our floor elevations.” Ibid. Respondent rejected the claim as untimely and duplicative on May 8, 2024. Attached to the 2024 Claim, Petitioners had attached a copy of a geotechnical survey that was performed at their request in November of 2019. The survey describes the water issues, the fact that the plans reflected drainage features which were not present upon inspection, and resulting “noticeably tilting floors in the residence”.

III.             Legal Standards

1. Government Claims Act

All claims for money or damages against a public entity must be presented in accordance with the provisions of the Government Code, unless it is subject to a specific exception. Gov. Code, § 905. These requirements are part of the “Government Claims Act” (the “Act”). See Gov. Code § 810, et seq. “The (Act) sets forth the general rule of immunity for public entities, abolishing all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, or if a statute ... is found declaring them to be liable.” West Contra Costa Unified School District v. Superior Court of Contra Costa County (2024) 103 Cal.App.5th 1243, 1254 (internal quotations omitted).

It is a requirement when filing an action for money damages against a public entity to present a claim to that entity prior to the filing of a legal action. Gov. Code, § 905. Claims submitted must include the date, place and circumstances of the occurrence, a general description of the injury damage or loss, and the names of public employees causing the injury damage or loss. Gov. Code, § 910. “(F)ailure to file a claim is fatal to the cause of action.” City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454. Even actual knowledge of the alleged injuries on the part of the governmental entity is inadequate to cure the failure of a plaintiff to file a claim. Johnson v. City of Oakland (1961) 188 Cal.App.2d 181, 184.

The Government Code requires that “[a] claim relating to a cause of action for death or for injury to person or to personal property…shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” Gov. Code §911.2(a). Claimants who fail to file a claim within the six-month period have one year from the accrual of the cause of action to request leave to submit an untimely claim. Gov. Code § 911.4. “[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action.” Sparks v. Kern County Board of Supervisors (2009) 173 Cal.App.4th 794, 798. “The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year.” Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776-1779; see also, Sparks v. Kern County Board of Supervisors (2009) 173 Cal.App.4th 794, 798.

The “accrual date” is “the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable” if the action were between private litigants and it marks the starting point for calculating the claims presentation period. Gov. Code §901; see also, Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903; Mosesian v. County of Fresno (1972) 28 Cal.App.3d 493, 500. This statutory time limit is mandatory and is an essential element of a cause of action against a public entity. See, Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119; see also, Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 613. “Timely claim presentation is not merely a procedural requirement,” but is a condition precedent to the claimant’s ability to maintain an action against the public entity. Shirk v. Vista Unified Sch. Dist. (2007) 42 Cal.4th 201, 209. Thus, timely presentation is “an element of the plaintiff’s cause of action.” Ibid. “Only after the public entity’s board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity.” Ibid. The failure to bring a timely claim bars the plaintiff from bringing suit against that entity. Gov. Code §945.4; see also, State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237. “The claimant bears the burden of ensuring that the claim is presented to the appropriate public entity.” DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991.

Claims must be granted or denied within 45 days of submission, or thereafter they are rejected by operation of law. Gov. Code, § 911.6. A plaintiff may request to be relieved from their failure to file a timely claim by filing a petition with the court within 6 months after the claim was denied or deemed denied under Gov. Code § 911.6. Gov. Code § 946.6(b)(3).  Even with a timely claim, a plaintiff is obligated to bring their action within 6 months of the denial of their claim so long as the written notice under Gov. Code § 913 has been given. Gov. Code § 945.6(a)(1).

“The showing required of a petitioner seeking relief under the authority of Government Code, section 946.6 on the grounds of mistake, inadvertence, surprise or excusable neglect is the same as required under section 473 of the Code of Civil Procedure for relieving a party from a default judgment.” Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483. “(W)hen a petitioner seeks relief under section 946.6 based on mistake or excusable neglect, the court must focus on the circumstances confronting the petitioner…” N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 77. “‘Excusable neglect’ is defined as the act or omission that might be expected of a prudent person under similar circumstances. (Citation.) It is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he failed to discover it.” People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44.

“A trial court has broad discretion in ruling on a petition for relief from the claim-filing requirement as long as the issue is whether the late claim was presented within a ‘reasonable time’ not to exceed one year after the accrual of the cause of action.” County of Los Angeles v. Superior Court (Crystal B., Steven G., Anita G.) (2001) 91 Cal.App.4th 1303, 1313. As a result, “the date of accrual can be a necessary subsidiary finding in deciding whether a party qualifies for relief, even if section 946.6 does not authorize the court to grant relief on the basis that a claim was in fact timely.” DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 460. The time to file this motion is subject to extensions on the same principles which might delay accrual of a statute of limitations. Osborne v. County of Los Angeles (1979) 91 Cal.App.3d 366, 370 (discovery rule applies); J. H. McKnight Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 991 (applying equitable estoppel.)

“As it is a remedial statute, a trial or appellate court must resolve any doubts in favor of the petition (Citation), but the preference for a trial on the merits does not warrant relief if based on a perfunctory recital of diligence in support of excusable neglect…” DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 459. “The public entity has no burden of establishing prejudice arising from the failure to file a timely claim until after the party seeking relief has made a prima facie showing of entitlement to relief.” Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1297.

Failure to file a suit after filing a claim is also preclusive. Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 244. “The curative provision for those who file late claims has an obvious rationale that does not apply to those who file claims and then fail to file complaints within the prescribed period. A late claim suggests late discovery of the proper means of seeking redress. But once a claimant has filed his claim, he demonstrates familiarity with the statutory procedures governing his grievance and can reasonably be charged with knowledge of the time limitations that are part of that procedure.” Hunter v. Los Angeles County (1968) 262 Cal.App.2d 820, 822.

B.     Accrual of Actions

“Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’ (Citation.) An important exception to the general rule of accrual is the “discovery rule,” which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806–807 (internal citations omitted). “However, the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim. (Citations.) It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action. Thus, if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period. (Citations.)” Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897–898; see also Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398, fn. 2 (quoting text).

Where a series of wrongs or injuries may be viewed as each triggering its own limitations period, a suit for relief may be partially time barred as to older events, but timely as to events within the statute of limitations, per the principle of continuing accrual.  Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192. When a nuisance is of such a character that it will continue indefinitely, it is considered permanent, and the statute of limitations on such a claim runs from the time the nuisance is created, but where the nuisance is capable of being abated at any time, it is continuing and therefore has no statute of limitations. Kahn v. Price (2021) 69 Cal.App.5th 223, 236; see also Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1389; Lyles v. State of California (2007) 153 Cal.App.4th 281, 286 (“Lyles”). The statute of limitations for a permanent nuisance is three years. Civil Code § 338. “‘(A)batable’ means that the nuisance can be remedied at a reasonable cost by reasonable means.” Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103.   

IV.             Analysis

Petitioners make several arguments (most of which are only of substance on reply), and the Court targets the decision to the necessary elements. While the Petition avers that there are multiple bases for relief under Gov. Code § 946.6, the relief appears narrower than represented. Relief is mandatory so long as Petitioner makes a showing that they have complied with the procedural requirements, and the case meets the enumerated reasons excusing late claims. Gov. Code 946.6(c).

1. Mistake, Inadvertence, or Excusable Neglect

First, it is apparent that Petitioners fail to display a reason to apply any of the factors under Gov. Code § 946.6(c). Of the reasons, only § 946.6(c)(1) might apply due to Petitioner’s averment of supporting facts on reply, and vague reference to this part of the statute in the Petition without any factual basis attached. No support for other subdivisions of Gov. Code § 946.36(c) is mentioned. The Court first examines the scope of the Petition. The Petition particularly asks for relief of the claim presented on April 11, 2025. Given that the Petition contains no mention of prior claims, any averred relief thereon would be outside the scope of the Petition.

Nothing presented by Petitioners represents timely evidence of mistake, inadvertence, or excusable neglect as related to the 2025 Claim. Petitioners were clearly aware of the elements (as analyzed further below) at the time that they filed the 2021 Claim. Moreover, there is no actual evidence of Petitioners’ errors presented with the Petition. The Petition is accompanied by the declaration of counsel, and no declaration from Petitioners. The Carlstrom Dec. presents no mistake, inadvertence or excusable neglect. In fact, it asserts the contrary, averring that Petitioners do not believe that the claim is untimely at all. No error of Petitioners is contained in either the Declaration of Counsel, or the Petition. The declaration of counsel is not competent evidence of the error of Petitioners, nor does any of the matters asserted therein actually contend that Petitioners were in error. Mistake, inadvertence, or excusable neglect are a required element for mandatory relief. Petitioners have known about the water accrual for over five years, filed two claims with Respondent that they failed to act on, only then to file the 2025 Claim. There is nothing resembling diligence based on the facts before the Court. The Petition contains no basis for relief under Gov. Code § 946.6 (c)(1).

Petitioners’ pivot on reply raising arguments for the first time unmentioned in the Petition is not well taken for several reasons. Petitioners will likely raise that they are forced to address the 2021 and 2024 Claims on reply because Respondent filed them in opposition. It seems apparent that Petitioners withheld evidence deleterious to their case and have now waived the opportunity to address it. Even overlooking this, the Court also notes that while Petitioners aver several arguments in relation to the 2021 and 2024 Claims, they have submitted no evidence on reply, instead averring that the Court should interpret these matters as misleading without any actual evidence that they were in any way mislead. The contention therefore fails on this basis as well. Third, while Petitioners argue equitable estoppel on Reply, nothing within the evidence or the pleading places that issue before the Court. It is bare, unsupported argument. Even if Petitioners could show the averred direction to other departments, this cannot form the basis for Petitioners’ excusable neglect for multiple reasons. While Petitioners make these assertions without support, the rejection letters are unambiguous evidence that Petitioners had to exercise diligence in pursuing their claims. Also, Petitioner’s failure to file suit for nearly five years is obviously preclusive to a statute which requires Petitioners to act no more than one year from accrual. The 2021 rejection letter is not misleading, and states without ambiguity that Respondent “rejected” Petitioners’ claim, and that they had only six months thereafter to file a court action. This bears no resemblance to Petitioners’ cited case of Santos v. Los Angeles Unified School Dist. (2017) 17 Cal.App.5th 1065, 1076 (Where instead of rejecting claim, defendant sent letter affirmatively misleading plaintiff into filing against third party, defendant was estopped from demurring for lack of claim when added to the case).

Petitioner’s averment of excusable neglect due to “confusion” equally fails to be expressed in any factual manner. The Petition describes no confusion. The reply avers confusion only in conclusory, argumentative terms, unsupported by any evidence. The rejection letters make clear that to the extent Petitioners were “confused”, any misconception was unreasonable. Unreasonable mistakes are not a basis for relief under Gov. Code § 946.6. DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 864. What is before the Court unambiguously shows that Petitioners time “reasonably” started several times, and they failed to file the Petition timely. The 2021 Rejection Letter and the 2024 Rejection letter are both unambiguous. There is no evidence of reasonable misconception, only evidence that any misconception was unreasonable.

Petitioner’s averment of “reasonable diligence” in their supplemental brief fails to address the substance of these deficiencies. While Petitioners declare that they continued pursuing their remedies here in a progressive fashion, that both ignores the clear definition of reasonableness, and the hard statutory cutoff, regardless of whether their conduct was “reasonable”. Petitioners knew of the harm, including degrading foundation issues, when they submitted their 2021 Claim. Their continued failure to materialize this matter into something for review by the Court is statutorily preclusive. Reasonable or not, Plaintiffs had six months after denial to file their Petition, and nothing displayed here approaches reasonable conduct. Goc. Code § 946.6 (c).

Petitioners’ failure to meet the statutory requirements means that Respondent has no burden to establish prejudice thereon. Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1297.

2. Accrual of Actions

Second, the claims are almost certainly precluded because Petitioners’ arguments regarding accrual are generally unpersuasive or inaccurate. Petitioner’s averment that the Petition is timely even if the Court finds that it accrued in 2019 ignores significant statutory language. The statute clearly requires that the claim be filed within one year of accrual of the cause of action. Gov. Code § 946.6(c); 911.4(b); County of Los Angeles v. Superior Court (Crystal B., Steven G., Anita G.) (2001) 91 Cal.App.4th 1303, 1313. As a result, the Court can and here should make a determination regarding accrual. See DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 460. Failure to present the claim to the government agency within that year is jurisdictional. Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779. If the claim has accrued the instant Petition must be denied. Petitioners’ 2021 Claim appears to concede knowledge of each element required to accrue the action in 2021.

Petitioners’ position is a significant misstatement of the method by which California jurisprudence interprets the accrual of claims. California’s accrual of claims turns around its theory of pleading, requiring claims to be pled by the underlying “primary right”. Accordingly, claims accrue when a claim is complete with all its elements, namely wrongdoing, causation, and harm. Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397. Petitioners aver that their cause of action was not complete because they continue to suffer harm as a result of the water runoff. This is facially insufficient to state that the cause of action had not accrued. It is nearly impossible to determine the basis of Petitioners’ argument, as they fail to cite a single case in support of this argument in their Petition.

Petitioners’ arguments on reply appear partially disingenuous. Petitioners aver that they had no appreciation for the damage caused by the water runoff until their filing of the 2025 Claim. Petitioners make these representations to the Court after they are aware that the Court has received the 2021 Claim and the 2024 Claim. The 2024 Claim’s inclusion of the survey from 2019 further subverts any averment of ignorance. Nothing about Petitioners’ contentions regarding being “unaware” of their damages is credible as a result. All that is required for the claim to accrue is “appreciable harm”. Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398, fn. 2. Petitioner’s 2021 Claim avers the exact harm described in the 2025 Claim. Petitioners’ argument that their harm continued to accrue does not itself state an exception to normal rules of accrual. Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1485 (repeated flooding does not constitute new harm). Clearly, based on the 2021 Claim, appreciable harm was apparent in 2021. Assuming the general rules of accrual apply, the action accrued no later than 2021. This fails to be within the time required under Gov. Code § 911.4. The rejection of Petitioners’ 2024 Claim as untimely serves to otherwise give notice that they were required to petition this court, as the claim was denied as untimely. They failed to do so within the six months applicable under Gov. Code 946.6(b)(3).

Even in their supplemental briefing, their citation to Ebersol v. Cowan (1983) 35 Cal.3d 427, 431 fails to appreciate the particular language of that case, requiring that the Petition be filed no less than one year after accrual of the cause of action. The Court is not required to contort the law to conform to what Petitioner’s believe is reasonable. The facts here leave no reasonable doubt, and accordingly the only issue is that which the Court invited briefing on, whether some principle of accrual may allow Petitioner’s to salvage some part of their claims. Petitioners’ claim is untimely absent something which differs from the normal rules of accrual.

3. Other Relief

Petitioners request that the Court determine that the claim is timely under Gov. Code § 911.2. Setting aside the issues described above, that clearly is outside the scope of what is allowable for petitions under § 946.6. Essentially, Petitioners ask that the Court pre-determine the viability of a fact-based defense rather than allowing such issues to be determined by a trier of fact. The Court will not grant relief, which both exceeds the Petition and is outside what is allowable under the statute. This is a matter properly tendered to a finder of fact if Petitioners make the required showing for relief. The limit of the Petition is whether Petitioners may file their claim despite Respondent’s position that it is untimely.

4. Continuous or Permanent Nuisance

As addressed above, the only determination which would appear to revive Petitioners’ request is that the concern at issue is one of continuing nuisance, as opposed to a permanent nuisance. The Court invited the parties to provide supplemental briefing on the issue of whether the Petitioner’s claims were those for permanent or continuing nuisance. Petitioners aver that the harm is one of continuing nuisance, due to the continuing accrual of water damage. While Petitioners cite numerous cases in their supplemental brief, most of them appear to be a misguided attempt to readdress issues the Court has already analyzed. To the degree Petitioners address the applicability of the continuing nuisance doctrine, they primarily cite three cases. Kahn v. Price (2021) 69 Cal.App.5th 223, involves claims of obstructed views under San Francisco’s ordinances, where the tree grew to block plaintiff’s view, and was found to be a continuing nuisance. Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, addresses chemical contamination found to be a permanent nuisance, reversing the jury verdict and directing plaintiffs to amend their complaint if continuing nuisance was alleged. Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, relates to airport activities amounting to a continuing nuisance, even though the nature of the claim had no end in sight due to the court’s inability to prohibit the conduct. Petitioners’ point distills the issue that the harm is capable of being stopped through abatement of the underlying deficiency, and that the cost thereon was conclusively reasonable or at least properly tendered to a trier of fact.

In advancing this argument, Petitioners aver that the matter is continuing because it may be abated at reasonable cost by reasonable means. In so doing, they provide estimates of the costs in abating the harm but fail to appreciate that continuing nuisance would only allow recovery for those matters accrued within the statute of limitations back from the date of filing, and that preceding damage is not recoverable. Moreover, their estimates of availability appear focused on the damage to their property, and not the cost in abating the underlying nuisance. Their contentions thereon do not carry weight as a result.

Respondent’s supplemental brief cites to Lyles v. State of California (2007) 153 Cal.App.4th 281, and Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478 (“Bookout”). Both cases address issues of excessive water runoff and flooding from public projects, and the court found each contained a permanent nuisance. Lyles, having been determined via demurrer, is particularly instructive in terms of procedure. In that case, flooding first occurred on Plaintiff’s property in 1998. Lyles, supra, 153 Cal.App.4th at 285. The plaintiffs worked with governmental entities, including the state and county, to address cleanup after the flood. Ibid. In 2004, plaintiffs filed the action averring that the cause of the flooding was an inadequately designed culvert that had clogged, resulting in the flooding. Id. at 286. The plaintiffs argued that because the deficient culvert was still in place, and could be repaired, the nuisance was continuing in nature. Id. at 291. Both the trial court and the court of appeal concluded that the nuisance was permanent. Ibid. Accordingly, plaintiff could not recover due to the lapse of the statute of limitations. Ibid. 

Bookout is also relevant because of the applicable facts. In that case, plaintiff purchased the property in 2000, and it experienced flooding in 2002 related to insufficient piping and drainage from a nearby well. Bookout, supra, 186 Cal.App.4th at 1481-1482. The piping had been built in the 1970s. Id. at 1481. The plaintiff filed the case in 2006, averring that the harm was caused by inadequate design and lack of maintenance. Id. at 1482. Plaintiff argued that “the flooding constitutes a continuous trespass or nuisance, and a new cause of action arises each time it floods. Id. at 1489. The trial court and the court of appeal both concluded that the claims were untimely as the nuisance was permanent in nature. Id. at 1489-1490. The issue was not whether the flooding was a repeating occurrence, but whether the underlying cause was permanent, and the effect will continue indefinitely as a result. Id. at 1489.

In reviewing the distinctions between Petitioners’ cases and Respondent’s, the latter bears substantially more similarity to the instant facts. Petitioners’ cases fail to address two primary defects. First, Mangini and Baker both relate to affirmative conduct. Second, Lyles and Bookout deal particularly with the type of harm at issue. Respondent’s averred failure to install the drainage ditch occurred in the 1960’s. Petitioners filed their first claim in 2021 but had the area professionally surveyed and the lack of drainage identified in 2019. While it is not clear when Petitioner’s became aware of the flooding at the property, it cannot be said to have occurred any later than the first claim, if not the survey. Petitioners aver that the damage to their property is continuous in nature, but Lyles and Bookout show that cases related to flooding focus on the creation of the nuisance and the predictability of the scope of the damages.

While Petitioners claim a litany of damages, none appear unique in nature or scale compared to even the 2021 Claim. There is no evidence that the missing drainage has been altered since 2021, or that the resulting flooding has changed in character. The nuisance is permanent, and the claims began accruing no later than 2021. Petitioners’ claims having accrued more than a year before the filing of the request to present untimely claim, Gov. Code § 946.6 cannot remedy their defect. Gov. Code § 911.4(c).

V.                Conclusion

The Petition is DENIED.

2.         SCV-245738, Liebling v. Goodrich

This matter is the subject of an enormous record, containing innumerable plaintiffs and defendants. As is relevant here, plaintiffs prevailed in the action and obtained the August 4, 2021, second amended judgment (the “Judgment”) against defendant Robert E. Zuckerman (“Zuckerman”). Among the plaintiffs/judgment creditors is Richard Abel (“Abel”).

This matter is on calendar for a motion by Abel for an amendment of the Court’s January 24, 2018, Assignment Order (the “Assignment Order”) under CCP § 708.560.

        I.            Governing Law

CCP § 708.560 allows a judgment creditor to apply to the court to modify an assignment order. CCP § 708.560 (a). If there has been a material change in circumstances, the court shall modify the assignment order appropriately. CCP § 708.560 (b). Assignment orders allow the court to order that a judgment debtor assign any interest, and rights to receive payment of money due or to become due, including, without limitation, accounts receivable, general intangibles, instruments, securities, accounts, deposit accounts, rents, royalties, fees, dividends, fees, salaries, commissions, residual income, distributions, and all other rights to money, to the extent necessary to satisfy the judgment in full. CCP § 708.510. The court may also issue a restraining order prohibiting the judgment debtor from encumbering, disposing or transferring any rights to payment. CCP § 708.520.

     II.            Analysis

Abel requests various remedies in modifying the assignment order. The Court is generally unpersuaded that there has been a material change in circumstances sufficient to justify the various remedies Abel particularly requests.

Abel requests that the Court aggregate into his collections the assignments he avers he has received from other Plaintiffs. This is not a matter addressed in the prior assignment order. There is no order adjudicating the efficacy of the assignments from other plaintiffs to Abel. Abel provides no authority showing that he may jump to the remedy allowed when those assignments are in place when they are not reflected in any order or judgment. Having reviewed the transcript provided by Plaintiff, the discussion between the Court and the parties does not constitute any form of effective order or factual finding regarding their effect. As an example of probable defects, the Court finds insufficiency with Abel’s construal of WeCare’s assignment to “the remaining plaintiffs and judgment creditors in equal shares” as assigning him additional shares for other plaintiffs who had already assigned their interest to him and exited the case. The Court is not persuaded that Abel’s purchase of assignments prior to WeCare’s exit translates to those Plaintiffs still receiving an allocation from WeCare’s share. This is a matter to be reflected in the judgment or subject to a focused, not adjudicated through a paragraph while moving to amend an assignment order. Given that the Judgment does not reflect the amounts Abel seeks to put within the assignment order, the Court cannot amend the assignment order to reflect rights not incorporated into the judgment. Abel’s attempt to parlay the remedy into the foundation of these claims is not an appropriate order.

Second, Abel’s calculation of post-judgment interest is not usable for multiple reasons. Again, it assumes the incorporation of assignments which have not been determined, and the assignment order is a remedy predicated on the relief reflected in the judgment. Calculations of interest thereon do not appear supported, and Abel has not calculated the accrued interest for his share individually. Nor, due to another defect, can the Court calculate this amount for him. Abel’s interest calculation ignores the rule as to accrual of post-judgment interests. CCP § 685.010 Abel concedes that he received $23,151.60 in levies from Zuckerman but provides no dates on which these payments were made. Despite this, he calculates the interest for the full period since the judgment was last amended, without accounting for the payments against principal in the interim. This is a significant issue with any proposed amendment.

Third, Abel’s request that the Court make orders requiring Zuckerman to perform various financial constraints each month is not persuasive. He has not displayed the propriety of such provisions being included in an assignment order, nor does his cited authority, Kim v. R Consulting & Sales, Inc. (2021) 67 Cal.App.5th 263, 263, in any way support that contention. The orders under an assignment are clearly delineated, as well as the types of income and interests they are capable of addressing. See CCP § 708.510. The docket in this matter reflects that Abel is well aware of his options to obtain this information as a judgment creditor, and the Court will not entertain such questionable enforcement methods while legally supported methods are clearly available.

Finally, Abel requests the assignment order be issued nunc pro tunc. He provides no reasoning for this, why it is important, or any authority allowing this to be performed. It is unsupported.

This is not to say that Zuckerman’s arguments are more persuasive. Zuckerman vigorously argues that all his property is exempt, and as such any assignment order would have no effect. First, Abel has addressed the questionable credibility of this position with evidence of independent contractor tax documents reflecting significant payments to Zuckerman in 2023, without any apparent payment on the judgment. Second, this both ignores his burdens as a judgment debtor and the purpose of an assignment order. The assignment order targets Zuckerman’s future (non-exempt) income and property rights, that he has no assignable rights at this time is immaterial to the propriety of issuance of the remedy for his substantial judgment debt. Zuckerman continues to assert that gifts are somehow automatically exempt but continues to cite a statute appearing to require review of the Court. Zuckerman concedes that “the burden of proof lies with the party claiming an exemption to a collection action”. The Court notes that Zuckerman’s prior claim of exemption was denied by the Court, and he has not since applied for any exception. Therefore, nothing except those exemptions directly under a statute (e.g., his social security payments) would appear to be exempt. In light of this, were Abel to bring a more focused motion seeking an intermediate remedy, the Court would be inclined toward assignment, However, Abel’s motion here does not address remedies available under the statute.

Abel’s motion is DENIED. The Assignment Order remains in effect as issued by the Court on January 24, 2018.

Zuckerman shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

3-4.      SCV-272341, Doe #1 J.M. v. Roe 1

Plaintiff Doe # 1 J.M. (“Plaintiff”), filed the currently operative first amended complaint in this action against National Council of Young Men’s Christian Associations of the United States of America (“NYMCA”, now dismissed), Sonoma County Young Men’s Christian Association (“Defendant”) and Does 3-100 with causes arising out of alleged sexual abuse of Plaintiff (the “Complaint”).

This matter is on calendar for motion by Defendant for summary judgment or, in the alternative, adjudication pursuant to Cal. Code Civ. Proc. (“CCP”) § 437c. Defendant’s motion for summary judgment is GRANTED.

NYMCA has also filed a motion for summary judgment, but Plaintiff has filed a dismissal of NYMCA on July 22, 2026. Therefore, the motion by NYMCA is MOOT.

I.                   Evidentiary and Procedural Issues

On Reply, Defendant raises that the causes of action under Civil Code §§ 51.9 and 52.1 are infirm because the causes of action were created by the statutes after the incident occurred. While this appears facially meritorious, Defendant is not allowed to raise new contentions on reply. Maleti v. Wickers (2022) 82 Cal.App.5th 181, 227; see also CCP § 437c(b)(4).

Defendant’s objections to 3, 23, and 24 on Reply are SUSTAINED, as lacking foundation, speculative, and lacking personal knowledge. Defendant’s multitudinous objections are otherwise overruled.

II.                Underlying Facts

Sonoma County Family Young Men's Christian Association is a private organization which first began operations in 1954 and had a location in Santa Rosa, located on 1111 College Avenue, Santa Rosa, CA 95404 and is also known as the Santa Rosa YMCA. Defendant’s Separate Statement of Undisputed Material Facts (“DUMF”) ¶ 1. Plaintiff attended the Sonoma County YMCA when he was in 5th or 6th grade after school and attended summer camp when he was in the 6th grade, in approximately 1975. DUMF ¶ 2. Plaintiff alleges two camp counselors at the summer camp blindfolded him and another unknown camper and forced them to perform oral sex on the counselors. DUMF ¶ 3. Plaintiff cannot recall the name of the camp or the location but recalls it being a weeklong sleepaway camp in West Sonoma County. DUMF ¶ 4. During camp, the campers stayed in cabins separated by gender. DUMF ¶ 5. Plaintiff alleges the abuse occurred a couple of days before the camp ended. DUMF ¶ 6. The abuse occurred in the camp counselors' cabin. DUMF ¶ 7. Plaintiff does not know the names of the counselors but estimated they were 17 or 18 years old. Ibid. Plaintiff had seen the counselors prior to the abuse as one of them took the campers to a waterfall for a hike and the other one worked in the dining hall. Ibid. One of the abusers asked Plaintiff and the other victim in the evening whether they wanted to hang out in the abuser’s cabin, and the younger boys followed him to the cabin. DUMF ¶ 8. Once at the cabin, Plaintiff was offered a cigarette and alcohol, of which he took a few sips of alcohol and soda. DUMF ¶ 9. The abusers blindfolded Plaintiff and told him to perform oral sex on them, which lasted approximately 15 minutes. DUMF ¶ 10. Plaintiff did not tell either of the counselors to stop or shout out for them to stop and neither of the abusers made any threats to him during the abuse. Ibid. Plaintiff never spoke to the other victim regarding the abuse and did not report the abuse to anyone during the camp. DUMF ¶ 11-12. Plaintiff did not tell his parents about the abuse when they picked him up from camp. DUMF ¶ 13. Plaintiff eventually told his mother about the abuse before starting 7^th grade, but only told her, “things happened that shouldn’t have happened”, to which she told him that he was okay. DUMF ¶ 14. Plaintiff does not know or believe that his mother reported the abuse to either law enforcement or Defendant. DUMF ¶ 15. Plaintiff never reported the abuse to law enforcement, or anyone else except his mother and his attorneys. DUMF ¶ 16. There is no evidence that anyone ever made a report regarding the abuse. DUMF ¶ 17. Plaintiff does not have any written statement from any witness or party to the incident besides himself. DUMF ¶ 18. Defendant is not in possession of any reports, complaints, or records of any alleged abuse occurring at a summer camp in 1975. DUMF ¶ 20. Plaintiff has no reports, complaints, or records regarding the incident, similar preceding incidents, Defendant’s policies, or regarding the identity or history of the abusers. DUMF ¶ 19.

Michelle Head (“Head”) was produced as the Person most Knowledgeable (“PMK”) witness for Defendant to testify in this case. Plaintiff’s Additional Material Facts (“PAMF”), ¶ 1. Head is Defendant’s Chief Operations Officer and has worked for the organization for approximately 35 years, including approximately 27 to 28 years in operation. PAMF ¶ 2. The parties stipulated that Head's December 2, 2025, deposition testimony in another action could be used in this action as if it had been taken in this action. PAMF ¶ 4. As a child, Plaintiff attended the Santa Rosa YMCA with his sister for swimming and afterschool programming, and Plaintiff's mother enrolled him. Plaintiff began attending when he was approximately in fifth or sixth grade. PAMF ¶ 5. The camp at issue was one that Plaintiff attended while he was in sixth grade. PAMF ¶ 6. Plaintiff knew it was a YMCA camp because his family signed up for it through the YMCA and he traveled to the camp on a bus departing from the YMCA with the other children. PAMF ¶ 7. Plaintiff's mother enrolled him, his father paid for the camp, and his sister attended with him. Ibid. The camp was a week-long overnight camp where the children stayed in cabins. PAMF ¶ 8. The bus trip from the Santa Rosa YMCA to the camp took approximately one to two hours. PAMF ¶ 9. Plaintiff recalled approximately five or six camp counselors, among whom the two perpetrators were the counselors that led Plaintiff and other children on a hike to a waterfall, and the other worked in the camp kitchen. PAMF ¶ 10. The boys and girls slept in cabins on opposite sides of a meadow, and no adult was assigned to stay in Plaintiff's cabin with the children. PAMF ¶ 11. The two perpetrators told the campers that they were counselors and that they worked at the camp every year for the YMCA, and therefore Plaintiff understood them to be working for the YMCA camp. PAMF ¶ 12. The two perpetrators wore blue shirts bearing the YMCA name. PAMF ¶ 13. Plaintiff was 11 years old when the abuse occurred. PAMF ¶ 14.

Head testified that Sonoma County YMCA operated a summer day-camp program in Occidental, near Camp Meeker, on a school campus, and when Head joined Sonoma County YMCA in 1992, the YMCA had already been operating programming there for years. PAMF ¶ 16. Head could not determine when Sonoma County YMCA began operating the Occidental camp or whether it was operating in 1975 because of a lack of historical records. PAMF ¶ 17. Head found no document indicating that the camp did not exist in 1975. Ibid. Defendant has no registration records dating back to the 1970s and found no records specific to Plaintiff. PAMF ¶ 18. Defendant found no staff records from the relevant period and could not identify the counselors who worked in Occidental during the mid-1970s. PAMF ¶ 19. Defendant's personnel records from the late 1970s and early 1980s were destroyed pursuant to its record-retention practices, and no current employee worked for the YMCA during that period. PAMF ¶ 20. For the periods Head has direct experience about and has records on, counselors in a YMCA run program for which children register are considered Defendant’s staff and that Defendant pays its own staff when it runs a program. PAMF ¶ 21. Camp staffing structure includes a camp director or supervisor and camp counselors for the periods Head could testify to.  PAMF ¶ 22. Defendant located no records showing what policies governed reports of inappropriate sexual behavior, reporting to outside authorities, or child safety during the late 1970s and early 1980s, nor any records of what child-safety training was provided to coaches, staff, or volunteers. PAMF ¶ 25. Defendant located no documentation showing how it evaluated child safety or that it conducted child-safety risk assessments during the late 1970s and early 1980s. PAMF ¶ 26. Head could not confirm that Defendant performed background checks in the late 1970s or early 1980s; the earliest background checks and fingerprinting she could confirm were in 1992. PAMF ¶ 27. Head could not identify what process Defendant used in the late 1970s and early 1980s to investigate allegations that a staff member had engaged in childhood sexual misconduct. PAMF ¶ 28. For the instant action, Defendant found no additional documents concerning childhood-sexual-assault prevention in the mid- 1970s beyond the materials it had already produced in the other action. PAMF ¶ 29.

III.             The Burdens and Standards on Summary Judgment and Adjudication

A.    Generally

Summary judgment or adjudication “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CCP § 437c(c). All evidence and inferences drawn reasonably drawn therefrom must be viewed in the light most favorable to the party opposing summary adjudication. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (“Aguilar”).

A moving defendant meets its initial burden to show that one or more elements of a cause of action “cannot be established” (CCP § 437c(p)(2)) by presenting evidence that, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established. Aguilar, supra, 25 Cal.4th at 851; Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879. Alternatively, a defendant may show that there is a “complete defense” to a cause of action. CCP § 437c(p)(2). To show a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. See, e.g. Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289. A defendant cannot base its “showing” on the plaintiff’s lack of evidence to disprove its claimed defense. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 472.

A moving party does not meet its initial burden if some “reasonable inference” can be drawn from the moving party’s own evidence which creates a triable issue of material fact. See, e.g. Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 637; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.

If a defendant meets its initial burden to show a “complete defense,” the burden shifts to the plaintiff to provide sufficient evidence to raise a triable issue of fact as to the defense asserted. CCP § 437c(p)(2). Consumer Cause, Inc., 91 Cal.App.4th at 468. An issue of fact exists if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar, 25 Cal.4th at 845.

B.     Childhood Sexual Assault and Special Relationships

“There is no time limit for the commencement of any of the following actions for recovery of damages suffered as a result of childhood sexual assault”, “[a]n action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” Code Civ. Proc., § 340.1(a)(2).

“[T]here is generally no duty to protect others from the conduct of third parties. The ‘special relationship’ doctrine is an exception to this general rule.” Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 627. “Special relationships generally have an aspect of dependency in which one party relies to some degree on the other for protection” and “the other has superior control over the means of protection, and they create a duty of care owed to a limited community, not the public at large.” Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 624 (internal quotations omitted). “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.” Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 216 (internal quotations omitted). “Where there is a special relationship between the defendant and a minor, the obligation to provide protection and assistance may include a duty to protect the minor from third party abuse.” Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 671. However, before finding a special duty applies in a particular case, the court must examine the factors laid out in Rowland v. Christian (1968) 69 Cal.2d 108 to determine if there is cause to find an exception to that duty. Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 217.

A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are 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.

 Rowland v. Christian (1968) 69 Cal.2d 108, 112–113.

 “[T]he Rowland factors are evaluated at a relatively broad level of factual generality.” Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772. In determining the application of Rowland factors, the fact specificity is “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.” Id. at 772. “In other words, the duty analysis is categorical, not case-specific.” Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629.

Overnight camps with minors are emblematic of the factors that contribute to a special relationship. Wallace v. Der-Ohanian (1962) 199 Cal.App.2d 141, 146.

C.     Agency and Ratification

“An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification.” Civil Code, § 2307. “Ratification is not an element of a claim; it is a choice to adopt someone's act as one's own.” Ratcliff v. The Roman Catholic Archbishop of Los Angeles (2022) 79 Cal.App.5th 982, 1003. “The failure to investigate or respond to charges that an employee has committed an intentional tort or the failure to discharge the employee may be evidence of ratification.” Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 109. Employers cannot be found to ratify conduct of which they were not aware. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 817.

D.    Negligence

“The elements of a cause of action for negligence are: duty; breach of duty; legal cause; and damages.” Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463. Whether a duty of care is owed is a question for the court and not a jury. Ballard v. Uribe (1986) 41 Cal.3d 564, 572. “A plaintiff meets the causation element by showing that (1) the defendant's breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff's harm, and (2) there is no rule of law relieving the defendant of liability. (Citation.) These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.

“Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.

“California follows the rule set forth in the Restatement Second of Agency section 213, which provides in pertinent part: ‘A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: ... [¶] (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others[.]’” Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836. “Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815. “An employer can be held liable for negligent supervision if it knows or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness.” Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 253. “[T]here can be no liability for negligent supervision ‘in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.’” Ibid, quoting Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395.

While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.]’ [Citations.] The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’ [Citations.] Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision.

 C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869

 IV.             Analysis

 A.                Defendant Shifts Their Initial Burden

Defendant shifts their initial burden. Defendant presents evidence that Plaintiff attended camp in approximately 1975, and that there are no records related to that period in either Plaintiff or Defendant’s possession. DUMF ¶ 19-20. Plaintiff never reported the abuse, and he has no evidence his mother reported the abuse. DUMF ¶ 15-16. There is no evidence a report was ever made, either to law enforcement or Defendant, of the abuse. DUMF ¶ 17. Plaintiff cannot identify his abusers, beyond their participation as camp counselors. DUMF ¶ 7.

Plaintiff argues “Defendant cannot carry its initial summary-judgment burden by pointing to gaps created by the absence of its own historical records. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)” Opposition, pg. 13:25-14:2. Plaintiff misstates the holding of that seminal case. Defendant cannot merely opine in argument that Plaintiff has no evidence but must produce evidence themselves that Plaintiff cannot produce evidence to support their case. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855. “The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” Id. at 855. Defendant here produces Plaintiff’s discovery responses as evidence that Plaintiff cannot produce the required evidence. Plaintiff’s argument is that Defendant cannot show that there were policies at the time, but that misallocates the burden. This is an absence of evidence argument, but Plaintiff bears the burden of proof in their case, and a wrongful or negligent act is a predicate to Plaintiff’s direct liability theory. Defendant, for the purposes of a summary judgment motion, does bear a burden, but that is distinguishable from Plaintiff’s burden to prove his case by a preponderance of the evidence. Id. at 856. On the merits of the underlying claims, Defendant bears no burden unless Plaintiff can prove each element by a preponderance. This is the underlying logic for a defendant being able to move for summary judgment based on plaintiff’s lack of evidence. The burdens on a moving plaintiff are substantially different as a result. Id. at 850.

Defendant shows evidence that Plaintiff cannot prove essential elements of each of his causes of action, because he cannot produce evidence showing that Defendant either breached a direct duty to him, or had any knowledge sufficient to find vicarious liability. The burden shifts to Plaintiff to show a triable issue of fact as to these issues.

A.    Plaintiff Fails to Meet the Shifted Burden.

1.      Direct Liability

Plaintiff first opines that the First, Fourth, and Fifth causes of action are not vicarious in nature but instead rely on CCP § 340.1 (a)(2) to impose direct liability. Plaintiff argues that Defendant owed Plaintiff a duty under a special relationship. Plaintiff particularly cites to Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377 (“Juarez”), which addressed the sexual abuse of a member of a Boy Scout troop by a troop leader.

Plaintiff is correct that Juarez opines broadly on special relationships owed to minors. However, Plaintiff skirts addressing the legal issue raised because the Juarez court was in error in its application of the Rowland factors as a separate consideration from special relationships, though they do concede the general proposition of law. Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 212, fn. 9. Nonetheless, Juarez could be read to continue being binding precedent because it addresses both the special relationship and each of the Rowland factors, but it does not fully serve Plaintiff’s purposes. Plaintiff relies heavily on the finding of a special relationship where a child is tendered to a youth organization for overnight, but subsequent caselaw shows that application of the Rowland factors is a necessary second step after the finding of the special relationship. Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 222. Juarez remains illustrative of the application of those factors to similar, but not fully analogous, facts.

First, Plaintiff adequately shows that there is a triable issue of material fact as to whether the camp was being run by Defendant. The abusers were wearing the same uniform as other counselors. Plaintiff was signed up through, and left from, the Santa Rosa YMCA. This is sufficient to at least show that Defendant might be the appropriate party to the action. Analysis turns to whether Plaintiff can show a basis for their liability.

Plaintiff argues that there is a special duty, and as to that initial step, Plaintiff carries his burden to show a triable issue of material fact. Plaintiff stayed overnight at the camp. Plaintiff signed up for the camp through the Defendant, left for camp from Defendant’s facility, and his abusers wore the same “uniform” as the other camp staff. This is sufficient to show triable issues of fact related to whether Defendant had control over the camp, and whether the abusers were employees.

Second, in applying the Rowland factors, this case bears most similarities to Juarez. See Juarez, supra, 81 Cal.App.4th 402-411. The harm is “foreseeable” as a categorical matter. Overnight camps with children bear close connection to the nature of the injury. Defendant has no apparent moral blame. The costs of prevention and impact to the community for finding liability are not addressed by any evidence, and complicated by the extensive time that has passed. Nonetheless, under the Rowland factors, there appears to be a reasonable balance in finding that public policy would not preclude finding Defendant to owe a duty.

However, CCP § 340.1(a)(2) contains two requirements. First, it requires that Defendant owed a duty of care to Plaintiff. On this, Plaintiff meets his burden of production. Second, it requires that Defendant have caused Plaintiff’s sexual assault was legally caused through a “wrongful or negligent act”. Plaintiff opines that the breach and causation are triable issues of fact because he offers policy changes that might have prevented the abuse and argues that Defendant’s inability to produce affirmative evidence is dispositive of triable issues.

To the degree Plaintiff offers any evidence at all on these issues, it is entirely speculative. Juarez is illuminative in the type of evidence which might have met the shifted burden. In that case, there was copious evidence before court as to both the defendant’s policies, procedures, and actual application (or lack thereof) of those in the case. Juarez, supra, 81 Cal.App.4th 397-400. The defendant had extensive education policies regarding child sexual abuse and had various policies designed to lessen the probability of abuse. Ibid. The plaintiff was a native Spanish speaker, and despite the fact that the education was available in Spanish, he was only provided those materials in English. Id. at 399. People in leadership positions failed to perform any supervision of the conduct of the troop leader alleged to have done the assault, had never done the sexual assault training, and allowed the troop leader to sleep in a tent with scouts, despite that being a violation of the sexual assault prevention policy. Id. at 399-400. This was the evidentiary record on which the court of appeal found triable issues of fact as to negligence, breach of duty and causation. Id. at 411-413.

To the degree that Plaintiff avers in a conclusory manner that Defendant should have had an adult staying in the cabins with campers, this is again pure argument. Plaintiff presents no evidence regarding the best practices or standard of care, to say nothing of what that standard may have been at the time of the abuse. It is worth noting that in Juarez, a sex abuse prevention policy violated (supported by evidence) was the exclusion of adults from camper cabins. This does not dispositively determine the standard of care, but it is illustrative of Plaintiff’s burden to present evidence that there was wrongful conduct, rather than just arguing hypothetical remedies.

Plaintiff’s argument regarding Defendant’s lack of evidence has already been addressed above. Plaintiff’s argument in this regard appears to assume negligence because the abuse occurred, but Plaintiff provides no case showing that such presumptions, sounding in res ipsa loquitor, are properly applied to such factual circumstances. Plaintiff’s evidence to which objections were sustained would not remedy this deficiency, as it would nonetheless not be competent evidence of what the policies were or were not at the time of the incident, and Plaintiff makes no showing that those policies were insufficient or breached, resulting in his sexual assault.

Plaintiff also argues that the First, Fourth and Fifth causes of action rely on distinct principles, and that Defendant fails to address these distinctions. However, all the theories require Plaintiff to produce evidence as to breach by Defendant and causation, which he has not done. Plaintiff does not meet the burden as to the direct liability theories.

2.      Vicarious Liability

In support of the Second, Third, Sixth, and Seventh causes of action, Plaintiff claims that the basis for holding Defendant liable is vicarious liability. Plaintiff’s arguments regarding vicarious liability are less complicated. Plaintiff concludes that Defendant ratified the conduct of the abusers, but this ignores the elements of ratification. Plaintiff does not produce evidence that Defendant was aware of the abuse, and therefore there can be no “fail[ure] to investigate or respond to charges” to show ratification thereon. See Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169. An employer cannot ratify conduct of which it was not aware. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 811. Plaintiff presents pure argument not aligned with the legal authorities on the issue. Speculation does not raise triable issues of fact. Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1525 (“[S]peculative inferences do not raise a triable issue of fact.”); Howard v. Accor Management US, Inc. (2024) 101 Cal.App.5th 130, 135. Similarly, Plaintiff makes no showing that the assault was within the scope of agency. Legally speaking, sexual assault is not within the scope of employment for camp counselors. Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 394. Plaintiff makes no effort to elucidate or address with evidence the elements of either ratification or agency. Accordingly, Plaintiff’s theories of vicarious liability fail due to a lack of supporting evidence. 

Plaintiff also raises under the IIED claim an argument regarding direct liability, claiming that the underlying conduct which resulted in the sexual assault was “reckless” to the point where it constituted outrageous conduct. However, this again relies on Plaintiff’s speculation as to what policies were or were not in place, which remains unsupported by evidence. Plaintiff fails to display outrageous conduct with evidence as a result.

Plaintiff’s cause of action for sexual harassment under Civ. Code § 51.9 fails for the reasons addressed in the ratification section above. Ratification applies to causes of action under Civ. Code § 51.9. C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1111. Plaintiff fails to meet the shifted burden as to sexual harassment as a result.

Defendant’s motion for summary judgment is GRANTED.

V.                Conclusion

Defendant’s motion for summary judgment is GRANTED.

Defendant shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

        

**This is the end of the Tentative Rulings.***