Filed 6/20/19; Modified and Certified for Pub. 7/18/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION EIGHT

JANE DOE,                                             B276699

       Plaintiff and Appellant,                      (Los Angeles County
                                                     Super. Ct. No. TC025247)
       v.

DEPARTMENT OF CHILDREN
AND FAMILY SERVICES et al.,

       Defendants and Respondents.

      APPEAL from a judgment of the Superior Court of Los
Angeles County. Ross M. Klein, Judge. Affirmed as modified.
      Mahoney Law Group, Kevin Mahoney, Anna Salusky
Mahoney and Shawn I. Pardo for Plaintiff and Appellant.
      Beach Cowdrey Jenkins, Thomas A. Beach and Mindee J.
Stekkinger; Greines, Martin, Stein & Richland, Timothy T.
Coates and Carolyn Oill for Defendants and Respondents
Department of Children and Family Services and Valerie Arnold.
      Horvitz & Levy, Frederic D. Cohen, Dean A. Bochner;
Beach Cowdrey Jenkins, Thomas A. Beach and Mindee J.
Stekkinger for Defendants and Respondents Children’s Institute,
Inc. and Vanessa Sykes.
       Jane Doe appeals from a judgment of nonsuit and
postjudgment awards of attorney fees and costs. Doe sued the
Los Angeles County Department of Children and Family Services
(DCFS) as well as a private foster care agency for negligence and
failure to perform statutorily mandated duties, which she claims
resulted in sexual abuse by her foster mother’s two sons. Doe
contends the defendants were not entitled to nonsuit and that the
trial court erred when it denied her request to file a fifth
amended complaint, admitted evidence of consent, and awarded
attorney fees and costs to the defendants. We affirm the
judgment of nonsuit and the attorney fees order, but reduce the
amount of costs by $6,988.37.
                              FACTS
       Doe was placed in foster care at a very young age. She has
spent most of her life moving between different foster homes and
group homes. From March to September 2009, 17-year-old Doe
lived in the foster home of Stephanie Sykes. Doe told her social
worker that her placement in the Sykes home was the best she
had ever had. While there, Doe began a sexual relationship with
Sykes’s 27-year-old son, Dwayne Winston, and became pregnant
with his child. Doe alleged Dwayne lived in the garage when she
was first placed there, but at some point during her stay, he
moved into his own apartment. Doe kept their relationship
secret from her social workers. She told them the father of her
baby was her friend, Darryl Cathcart. She did not disclose that
Dwayne was the father until after the baby was born.
       At the end of May, Sykes had to attend an out-of-town
funeral and asked her younger son, 22-year-old Clifford Winston,
to look after Doe for the weekend. She did not inform the social
worker that she was leaving town for the weekend. Clifford took




                                2
Doe to his house, and while she was there, he raped her. Doe did
not report the rape because Dwayne persuaded her to keep it
secret so his mother would not lose her license and his brother
would not get in trouble. DCFS immediately removed Doe from
the Sykes home when she informed her social worker about the
rape four months later, on September 28, 2009.
       In April 2011, Doe sued Sykes, her sons, the County of Los
Angeles, her county social worker, Children’s Institute, Inc., and
the director of foster care at Children’s Institute.1 Children’s
Institute is a nonprofit agency that, among other services,
screens foster parents, certifies foster homes, and monitors the
foster homes. Children’s Institute certified Sykes, placed Doe at
her home, and assigned one of its social workers to monitor the
home while Doe was there.
       The case progressed to trial after Doe rejected a $100,000
settlement offer from Defendants. (Code Civ. Proc., § 998.)2 The
first trial ended in a mistrial and a second trial commenced in
2016.

1     Sykes and her sons defaulted on the complaint, and after a
default prove up, Doe recovered a total judgment of
approximately $2.2 million against them. Because Sykes and her
sons did not participate in the litigation, we refer to the County,
Children’s Institute, and their employees collectively as
“Defendants.” Additionally, references to the “County” include
the County of Los Angeles and Doe’s county social worker,
Valerie Arnold. References to “Children’s Institute” include that
agency and its director of foster care, Vanessa Sykes (no relation
to Stephanie Sykes).

2    All further section references are to the Code of Civil
Procedure unless otherwise specified.




                                 3
       By then, Defendants had whittled Doe’s causes of action
against them to the following four: violation of the Child Abuse
and Neglect Reporting Act (second cause of action; Pen. Code,
§ 11165); negligence (fourth cause of action); negligence per se
(fifth cause of action); and negligent hiring, supervision,
retention, and management (sixth cause of action). In support of
her negligence claims, Doe alleged Defendants failed to fulfill
their mandatory statutory duties, including visiting her at least
three times during her first month of placement and meeting
with Sykes at least once a month. Does also alleged Defendants
negligently failed to properly screen Sykes and her sons before
placing Doe and did not adequately monitor her.
       Defendants moved for nonsuit at the close of Doe’s case-in-
chief. The trial court granted the motion, finding Defendants did
not have a duty to protect against criminal acts of third parties
where there was no knowledge of their propensities or that
criminal misconduct was imminent. Doe appealed from the
judgment of nonsuit.
       After judgment was entered, Defendants submitted a
memorandum of costs. The trial court granted, in part, Doe’s
motion to tax costs. The trial court also granted the County’s
motion for attorney fees pursuant to section 2033.420 on the
ground Doe wrongfully denied its requests for admission (RFAs).
Doe’s appeal from the postjudgment orders was consolidated with
her appeal from the judgment for nonsuit.
                            DISCUSSION
I.     The Trial Court Properly Granted Nonsuit
       Doe asserts Defendants were not entitled to nonsuit
because the trial court improperly relied on caselaw addressing
the duty an adult owes to minors invited into her private home,




                                4
which is a lower standard than Defendants’ mandatory duties to
a foster child in their care. In support of her argument, Doe
distinguishes between the duties owed by the County, a public
entity, which are based in statute, and those owed by the
Children’s Institute, a private entity, which are based in common
law.3 In either case, Doe essentially alleges Defendants were
negligent in failing to perform their duties.4 Doe, however, failed



3      In her opening brief, Doe addressed her arguments to all
“Respondents” and failed to differentiate between the duties owed
by the County and Children’s Institute. In its respondent’s brief,
Children’s Institute argued it was not a public entity and its
liability could not rest on a failure to discharge any mandatory
statutory duties. Doe clarified in her reply brief that her theory
of liability as to the County rested on its failure to perform its
mandatory duties, but that liability as to Children’s Institute
rested on common law negligence. As a result, we analyze Doe’s
claims against the County and Children’s Institute separately, as
articulated in her reply brief.

4     The trial court’s nonsuit ruling does not expressly address
the negligence per se, negligent hiring, or Child Abuse and
Neglect Reporting Act (CANRA) causes of action. Doe does not
assert this is error or a basis for reversal. (See Jones v. Jacobson
(2011) 195 Cal.App.4th 1, 19, fn. 12 [“issues and arguments not
addressed in the briefs on appeal are deemed forfeited”].) At oral
argument, the parties agreed it was unnecessary to specifically
address these causes of action (or, in the case of negligence per se,
a theory) in this opinion because the issues of foreseeability and
causation applied to all of the negligence-based causes of action.
Additionally, the CANRA claim was encompassed within the
negligence cause of action because the failure to report was
alleged to be a breach of duty underlying that cause of action.




                                 5
to present sufficient evidence to permit the jury to find in her
favor.5
       A. Standard of Review
        “A defendant is entitled to a nonsuit if the trial court
determines that, as a matter of law, the evidence presented by
plaintiff is insufficient to permit a jury to find in his favor.
[Citation.] ‘In determining whether plaintiff’s evidence is
sufficient, the court may not weigh the evidence or consider the
credibility of witnesses. Instead, the evidence most favorable to
plaintiff must be accepted as true and conflicting evidence must
be disregarded . . . .’ A mere ‘scintilla of evidence’ does not create
a conflict for the jury’s resolution; ‘there must be substantial
evidence to create the necessary conflict.’ ” (Nally v. Grace
Community Church (1988) 47 Cal.3d 278, 291.)
       In response to a motion for nonsuit, a plaintiff has the
right, upon request, to reopen her case to remedy defects raised
by the motion. (Eatwell v. Beck (1953) 41 Cal.2d 128, 131–132;
S. C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th
529, 538.) However, the right to present further evidence is
waived unless the plaintiff also makes an offer of proof,
describing the evidence and explaining how it would cure the
deficiencies. (Alpert v. Villa Romano Homeowners Assn. (2000)
81 Cal.App.4th 1320, 1337.)
       We review a grant of nonsuit de novo. (Thrifty Payless, Inc.
v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050,
1060.) “ ‘In an appeal from a judgment of nonsuit, the reviewing
court is guided by the . . . rule requiring evaluation of the

5    Because we affirm the judgment of nonsuit, we need not
address Doe’s contention that the trial court erred in denying her
motion in limine to exclude evidence of consent.




                                  6
evidence in the light most favorable to the plaintiff.’ ” (Marvin v.
Adams (1998) 224 Cal.App.3d 956, 960, quoting from Carson v.
Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson).)
However, a judgment of nonsuit must not be reversed if plaintiff's
proof raises nothing more than speculation, suspicion, or
conjecture. (Carson, supra, 36 Cal.3d at p. 839.)
       B. The Negligence Cause of Action Against
       Children’s Institute
       Doe asserted Children’s Institute was negligent in
screening Sykes’s home, certifying it, placing Doe there, and
monitoring Doe’s placement. However, there was no evidence
Children’s Institute owed Doe a duty to protect her from the
Winston brothers because their sexual abuse was not foreseeable
or imminent. Thus, the evidence presented by Doe was
insufficient for the jury to find in her favor and nonsuit was
properly granted.
       1. Applicable Law
       To prevail in a negligence action, a plaintiff must show the
defendant owed a legal duty to her, the defendant breached that
duty, and the breach proximately caused injury to the plaintiff.
(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1145.) A defendant does not owe a legal duty to protect
against third party conduct, unless there exists a special
relationship between the defendant and the plaintiff. (Delgado v.
Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) In that
circumstance, “[i]n addition to the special relationship . . . , there
must also be evidence showing facts from which the trier of fact
could reasonably infer that the [defendant] had prior actual
knowledge, and thus must have known, of the offender’s
assaultive propensities. [Citation.]” (Romero v. Superior Court




                                  7
(2001) 89 Cal.App.4th 1068, 1084 (Romero).) In short, the third
party’s misconduct must be foreseeable to the defendant.
(Delgado, supra, 36 Cal.4th at p. 244; Romero, supra, 89
Cal.App.4th at p. 1081.)
        In J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th
388, 391–393 (J.L.), for example, a minor referred to a home day
care by the Children’s Institute6 was sexually assaulted by the
grandson of the day care provider. The Court of Appeal affirmed
the summary judgment granted in favor of Children’s Institute,
finding there was no evidence it knew of the grandson’s
assaultive tendencies. (Id. at pp. 395–399; see also Z.V. v. County
of Riverside (2015) 238 Cal.App.4th 889, 902 [county had no prior
knowledge of the social worker’s propensity to sexually assault
children]; Doe v. Superior Court (2015) 237 Cal.App.4th 239, 245
[a summer camp had a special relationship with “ ‘the foreseeable
victim’ ” of its employee]; Margaret W. v. Kelley R. (2006) 139
Cal.App.4th 141, 156–157 [no liability for negligent supervision
where mother who hosted sleepover of daughter’s friends did not
know the plaintiff left with the male assailants, knew who they
were, or knew they had any propensity to commit sexual assault];
Romero, supra, 89 Cal.App.4th at p. 1080 [“For reasons we shall
explain, we hold that notwithstanding the special relationship
between the Romeros and the teenage invitees, the Romeros did
not owe a duty of care to supervise Ryan at all times during her
visit, to warn her, or to protect her against Joseph’s sexual


6      In that case, Children’s Institute provided licensed
childcare services to low income or other eligible families through
its own facilities or through referrals to licensed home day care
providers with whom it contracted. (J.L., supra, 177 Cal.App.4th
at p. 391.)




                                 8
assault, because there is no evidence from which the trier of fact
could find that the Romeros had prior actual knowledge of
Joseph’s propensity to sexually assault female minors.”]; Juarez
v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395
[rejecting claim against Boy Scouts for negligent “selection,
supervision and retention” of scoutmaster where there was no
information accessible to the Scouts that would cause them to
suspect that the scoutmaster “had a propensity to molest
children”].)
       2. There Was Insufficient Evidence to Demonstrate
       Children’s Institute Had a Duty to Protect Doe from
       the Winston Brothers Because It Had No Actual
       Knowledge of Doe’s Contact With the Winston
       Brothers
       Here, there is no real dispute that Children’s Institute had
a special relationship with Doe. However, nonsuit was properly
granted as there was no evidence from which the jury could
reasonably infer Children’s Institute knew Doe had contact with
Clifford or Dwayne, much less that the brothers possessed
criminal propensities that posed a risk to Doe.
       In fact, the evidence is to the contrary. Doe repeatedly told
the social worker from Children’s Institute that her placement in
the Sykes home was the best one she had ever had. There is also
no evidence Children’s Institute knew, as Doe alleged, that
Dwayne lived in Sykes’s garage when Doe was initially placed
there. Doe admitted she hid her relationship with Dwayne from
her social workers. Further, it is undisputed Clifford did not live
with Sykes in 2009. And, Sykes did not inform anyone from
Children’s Institute or the County of her plan to leave Doe in
Clifford’s care when she attended the funeral.




                                 9
       Neither was there any evidence to show Children’s
Institute knew of the brothers’ criminal propensities. A
background check was conducted on Clifford, who lived with
Sykes in 2005 when she applied to be a foster mother. He passed,
and continued to have a clean record while Doe lived with Sykes.
There is also no evidence that Dwayne possessed a criminal
record. Nor is there any evidence either brother had a history of
misconduct with any of the other foster children placed in Sykes’s
home.
       Because there was no evidence showing Defendants had
actual knowledge of the brothers’ criminal tendencies or that they
posed any risk of harm, their conduct was not foreseeable.
Children’s Institute thus did not owe Doe an affirmative duty to
protect her from the Winston brothers.
       We are not persuaded by Doe’s contention that Children’s
Institute’s failure to comply with its mandatory duties created a
foreseeable risk of harm to her. In particular, Doe contends
Children’s Institute: (1) failed to perform the required home
study prior to certifying and re-certifying Sykes’s foster home
pursuant to California Code of Regulations, Title 22, Division 6,
Chapter 9.5, section 89227; (2) certified Sykes’s foster home even
though it was over capacity limits prior to and during Doe’s stay,
in violation of California Code of Regulations, Title 22, Division 6,
Chapter 9.5, sections 89228, 89240, and 89387; (3) failed to follow
up with Sykes regarding the removal of a bed in the garage under
California Code of Regulations, Title 22, Division 6, Chapter 9.5,
section 89252; and (4) failed to adequately train Sykes as
required by California Code of Regulations, Title 22, Division 6,
Chapter 9.5, section 89405. According to Doe, she would never
have been in a position to be sexually abused by the Winston




                                 10
brothers if she had not been placed in a fraudulently certified and
over-capacity home from the outset.
      Doe relies on Doe v. United States Youth Soccer Assn., Inc.
(2017) 8 Cal.App.5th 1118, 1129 (U.S. Youth Soccer), as
instructive on the foreseeability standard. We agree U.S. Youth
Soccer is instructive. However, it does not help Doe. In U.S.
Youth Soccer, the plaintiff, a minor, was molested by her coach,
who was employed by one defendant and a member of another
defendant. (Id. at p. 1122.) The court held that the defendants
had a duty to conduct criminal background checks of all adults
who were in contact with children involved in the defendants’
soccer programs, but failed to do so. There was evidence that the
defendants were aware that sexual predators were drawn to their
organization to exploit children and that there had been prior
incidents of sexual abuse of children in their programs. (Id. at
p. 1135.)
      The court reasoned, “The connection between plaintiff’s
harm and defendants’ failure to conduct a criminal background
check was close. If defendants had conducted a criminal
background check of [the coach], his prior conviction for domestic
violence would have been discovered and it would have been
highly unlikely that he would have been hired. Thus, he would
have had far fewer, if any, opportunities to sexually abuse
plaintiff.” (U.S. Youth Soccer, supra, at pp. 1136–1137.)
      Here, Doe does not explain how her injuries were
foreseeable absent Children’s Institute’s failures. Unlike U.S.
Youth Soccer, the connection between Doe’s harm and
Defendants’ failure is not close. There, a background check
would have led to information about whether the coach possessed
or lacked criminal propensities. Here, Children’s Institute’s




                                11
failure to conduct a home study, enforce capacity limits, follow up
on the removal of a bed, or provide adequate training would not
lead to information about the Winston brothers’ criminal
propensities.
       Doe further contends it was foreseeable that “adult males
could take advantage of her vulnerability,” citing to her own
history of sexual abuse. However, it would be impossible for
Defendants to protect Doe from every adult male seeking to take
advantage of a vulnerable young teenager. This is particularly
true when Doe worked to keep secret her relationship and contact
with the Winston brothers.
       The other cases on which Doe relies do not assist her
either. Both M.W. v. Panama Buena Vista Union School Dist.
(2003) 110 Cal.App.4th 508, 517 (M.W.) and Dailey v. Los Angeles
Unified Sch. Dist. (1970) 2 Cal.3d 741 (Dailey), each contain an
element of foreseeability absent here.
       In M.W., the plaintiff, a special needs student, was sexually
assaulted by another student on campus in the morning before
school started. The school provided no scheduled supervision
during that time, even though it was aware that students,
including the special needs plaintiff, were present on campus.
The plaintiff had previously complained about his assailant and
the assailant had a history of inappropriate and violent behavior
against teachers and other students. (M.W., supra, 110
Cal.App.4th at p. 520.) The court concluded that “[s]uch conduct
created a foreseeable risk of a particular type of harm—an
assault on a special education student. Not only was such an
assault reasonably foreseeable, it was virtually inevitable under
the circumstances present on this campus.” (Id. at p. 521.)




                                12
       Doe also relies on Dailey, supra, 2 Cal.3d 741, for the
proposition that Defendants had a duty of supervision that
included an obligation to offer her some protection against her
own lack of mature judgment. It does not help her case. In
Dailey, the plaintiff high school student died while participating
in a “slap fight” with his friend, another student, during school
hours. There was no supervision in that area of the campus.
The Supreme Court reversed the directed verdict, concluding
there was sufficient evidence to support a verdict in the plaintiff’s
favor. The high court found “[t]he events which occurred in the
instant case are precisely what one would expect from
unsupervised adolescents.” (Id. at p. 751.)
       Here, in contrast, Doe proffered no evidence showing that
her sexual abuse was “precisely” what one would expect from a
failure to comply with the regulations at issue. Neither was the
sexual abuse “virtually inevitable.” The record instead showed
Children’s Institute did not know of Doe’s contact with the
brothers or that the brothers possessed criminal propensities.
Doe failed to establish that her abuse by the Winston brothers
was foreseeable.
       Although Doe attempts to distinguish Romero and other
cases cited in this opinion on the ground they addressed the duty
owed to an invitee to a private home rather than the duty owed to
a foster child, she does not dispute that foreseeability is a
necessary factor in determining whether a duty is owed.
Nor could she; the “actual knowledge” standard articulated in
Romero has been applied in cases involving special relationships,
including the foster care context. We have cited and discussed
those cases above.




                                 13
       C. The Statutory Negligence Cause of Action Against
       the County
       In California, a public entity is not liable for an injury
arising from an act or omission of the public entity or a public
employee except as provided by statute. (Gov. Code, § 815.)
Thus, a common law negligence claim may not be asserted
against the County. (Becerra v. County of Santa Cruz (1998)
68 Cal.App.4th 1450, 1457 (Becerra).) However, Doe asserted the
County and county social worker, Valerie Arnold, are liable for
her injuries under Government Code sections 815.6 and 820.7 It
appears the parties and the trial court treated Government Code
section 815.6 as setting forth a form of statutory negligence.
Even if the trial court should have expressly addressed Doe’s
claims against the County under the rubric of Government Code
section 815.6, there was no prejudice resulting from this failure
because the claim would not have survived nonsuit. (Atkinson v.
Elk Corp. (2003) 109 Cal.App.4th 739, 748, 757–758 [although
trial court’s grant of nonsuit in favor of respondent on court’s own
motion was “irregular,” the court found no prejudice because the
plaintiff’s claims would not have survived nonsuit].)
       Government Code section 815.6 provides, “[w]here a public
entity is under a mandatory duty imposed by an enactment that
is designed to protect against the risk of a particular kind of
injury, the public entity is liable for an injury of that kind

7     Government Code section 820, subdivision (a), provides
“a public employee is liable for injury caused by his act or
omission to the same extent as a private person.” Thus, Arnold,
a public employee, may be personally liable for negligence, a
common law tort. Our conclusion that there was insufficient
evidence of foreseeability applies equally to the negligence claim
against Arnold as it does to Children’s Institute.




                                14
proximately caused by its failure to discharge the duty unless the
public entity establishes that it exercised reasonable diligence to
discharge the duty.” “ ‘Government Code [section] 815.6 contains
a three-pronged test for determining whether liability may be
imposed on a public entity: (1) an enactment must impose a
mandatory, not discretionary, duty . . . ; (2) the enactment must
intend to protect against the kind of risk of injury suffered by the
party asserting section 815.6 as a basis for liability . . . ; and
(3) breach of the mandatory duty must be a proximate cause of
the injury suffered.’ [Citation.]” (Becerra, supra, 68 Cal.App.4th
at p. 1458.) It is the third prong with which we are concerned.
       Doe asserts the County breached three mandatory duties
as described in the Department of Social Services Manual of
Regulations (DSSMR): 1) it failed to visit Doe at Sykes’s foster
home at least three times in the first 30 calendar days of her
placement pursuant to DSSMR section 31-320; 2) it failed to
conduct monthly visits with Sykes as required by DSSMR section
31-330.21;8 and 3) it failed to report Doe’s statutory rape despite
knowing she was pregnant by an 18 year old as required under
DSSMR section 31-501 and CANRA, Penal Code sections 11164
through 11174.3. Here, the evidence presented by Doe was
insufficient to permit a jury to find the breach of these duties was
a proximate cause of her injuries.


8     Arnold documented her in-person contact with Doe at
Sykes’s home on March 13, April 8, May 29, June 12, July 2,
August 7, and September 8. Sykes was present at each meeting
except for the one on August 7. The record shows Arnold’s breach
of her mandatory duties under the DSSMR consisted of two
missed visits with Doe during her first 30 days of placement and
one missed meeting with Sykes in the month of August.




                                15
       Despite Doe’s assertion that Arnold could have discovered
Dwayne and Clifford’s presence at the Sykes’s home if only she
had fulfilled her mandatory obligations on visitation, it is
undisputed Doe actively hid her contact with the Winston
brothers from Arnold and her other social workers. Doe admitted
she intentionally misled her social workers to believe her baby
was fathered by someone else. Doe also kept the rape from her
social workers for four months.
       Doe contends, “Had Ms. Arnold visited Appellant three
times within the first 30 days of placement, she could have
discovered Dwayne Winston resided at the Sykes Foster Home
and that he had a romantic interest in Appellant . . . . Ms.
Arnold could have intervened . . . she could have taken a firm
stance to discourage any romantic relationship. Such a stance
could have also discouraged Dwayne’s brother, Clifford, from
making any advances towards Appellant. (Italics added.)” Given
that Doe intentionally kept her contacts with Dwayne and
Clifford from her social workers, it is pure speculation to conclude
the sexual abuse would not have occurred had Arnold visited Doe
two additional times within the first 30 days of her placement
and met with Sykes in August. We decline to reverse the
judgment of nonsuit as Doe’s proof raises nothing more than
speculation, suspicion, or conjecture. (Carson, supra, 36 Cal.3d
at p. 839.)
       As to the CANRA violation, Doe asserts Arnold knew Doe
was under 18 at the time she became pregnant and was informed
that the father was her boyfriend, who was over 18. As a result,
she was required to report the statutory rape. Even if Arnold
was required to report the incident, there is no evidence the
failure to report was a proximate cause of Doe’s injury as the




                                16
injury had already occurred by the time she asserts it should
have been reported. Indeed, Doe fails to identify what injury
resulted from the failure to report, except to state that she
“was left to deal with her adult pursuer for an additional three
and a half weeks.” Beyond this statement, however, Doe does not
assert, much less cite to evidence, that Dwayne continued to
pursue her during those three and a half weeks, that it was
unwanted, or that she even had contact with him during that
time. Again, there is insufficient evidence of causation to allow a
jury to find in her favor on her claims against the County.
II.    The Trial Court Did Not Abuse Its Discretion When It
       Denied Leave to File a Fifth Amended Complaint
       Two days prior to concluding her case-in-chief, Doe sought
leave to file a fifth amended complaint to add fraud and
intentional concealment causes of action against Children’s
Institute, as well as a claim for punitive damages. Doe argued
amendment was necessary to conform the pleading to the
testimony because Children’s Institute employees testified at
trial that they did not comply with home study requirements to
certify and recertify Sykes’s home as a foster home. They also
testified that one of the signatures on the certification was
forged. The trial court denied the request because it was
untimely. We find no abuse of discretion. (Bettencourt v.
Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111.)
       “ ‘ “[T]he trial court has wide discretion in allowing the
amendment of any pleading [citations], [and] as a matter of policy
the ruling of the trial court in such matters will be upheld unless
a manifest or gross abuse of discretion is shown. [Citations.]” ’
[Citation.] Nevertheless, it is also true that courts generally
should permit amendment to the complaint at any stage of the




                                17
proceedings, up to and including trial. [Citations.] But this
policy applies ‘ “only ‘[w]here no prejudice is shown to the adverse
party.’ ” ’ [Citation.] Moreover, ‘ “ ‘even if a good amendment is
proposed in proper form, unwarranted delay in presenting it
may–of itself–be a valid reason for denial.’ ” ’ [Citations.] Thus,
appellate courts are less likely to find an abuse of discretion
where, for example, the proposed amendment is ‘ “offered after
long unexplained delay . . . or where there is a lack of
diligence . . . .” ’ [Citation.]” (Melican v. Regents of University of
California (2007) 151 Cal.App.4th 168, 175 (Melican).)
       Here, the trial court reasonably found Doe should have
filed the proposed amended pleading earlier. Doe filed her
motion to amend two days before she rested her case-in-chief.
Yet, she was aware of the facts underlying her proposed
amendment well before then. Doe raised the issue that
Children’s Institute did not meet certain requirements when it
certified and recertified Sykes’s foster home in her opposition to
Defendants’ summary judgment motion one year before trial.
Moreover, Doe was provided the forged certification document
during discovery and had the opportunity conduct further
discovery on it. She did not.
       Doe provides no reason for the delay and fails to address it
in her appellate briefs. Unexplained delays in seeking leave to
amend is a valid reason to deny amendment. (Melican, supra,
151 Cal.App.4th at p. 175; P&D Consultants, Inc. v. City of
Carlsbad (2010) 190 Cal.App.4th 1332, 1345.) The trial court’s
decision not to allow amendment at that late stage was not an
abuse of discretion.




                                 18
III.   The Trial Court Did Not Abuse Its Discretion When It
       Awarded Attorney Fees for Unreasonably Denied
       Requests for Admissions
       Doe contends the trial court abused its discretion in
imposing attorney fees for her unreasonable denial of the
County’s RFAs. In addition to questioning the “substantial
importance” of the disputed RFAs, Doe contends she had good
reasons for refusing to admit them. We find no abuse of
discretion.
       A. Applicable Law
       A party to a civil action may propound a written request for
the admission of “the genuineness of specified documents, or the
truth of specified matters of fact, opinion relating to fact, or
application of law to fact.” (§ 2033.010.) If the requesting party
proves the truth of an RFA previously denied by the other party,
the requesting party may move the court for an order requiring
the other party pay the reasonable expenses incurred in making
that proof, including reasonable attorney fees. (§ 2033.420.)
Section 2033.420 is a procedural mechanism designed to expedite
trial by reducing the number of triable issues that must be
adjudicated. (City of Glendale v. Marcus Cable Associates, LLC
(2015) 235 Cal.App.4th 344, 359.)
       Under the statute, the trial court shall order the party
denying the RFA to pay the costs of proof unless: (1) an objection
was sustained to the request or a response was waived; (2) the
admission sought was of no substantial importance; (3) there was
reasonable ground to believe that party refusing to admit the
matter would prevail on the matter; or (4) there was other good
reason for the failure to admit. (§ 2033.420, subd. (b).) An RFA
has “substantial importance” if it is “central to disposition of the




                                19
case.” (Brooks v. American Broadcasting Co. (1986) 179
Cal.App.3d 500, 509.) In evaluating whether a “good reason”
exists for denying a request to admit, “a court may properly
consider whether at the time the denial was made the party
making the denial held a reasonably entertained good faith belief
that the party would prevail on the issue at trial.” (Id. at p. 511.)
       “ ‘The determination of whether “there were no good
reasons for the denial,” whether the requested admission was
“of substantial importance,” and the amount of expenses to be
awarded, if any, are all within the sound discretion of the trial
court. [Citation.]’ ” (Bloxham v. Saldinger (2014) 228
Cal.App.4th 729, 753.)
       B. Analysis
       During discovery, Doe denied sixteen RFAs served by the
County. RFA numbers 1 through 10 asked Doe to admit that
Arnold and other County employees visited her in 2009 on March
13, April 8, April 20, May 29, June 12, July 2, August 7,
September 8, September 28, and October 8. Attached to the
RFAs were computer logs kept by the County documenting when
and where the visits were held, who attended, and the purpose of
the visit. Plaintiff refused to admit the RFAs on the ground she
did not recall the exact dates of her meetings with the County
social workers.
       RFA numbers 11 and 12 requested Doe admit that she first
reported she had been raped by Clifford at a court hearing on
September 28, 2009, and she first informed Arnold of the rape on
the same day. Plaintiff denied these RFAs as well. Doe also
denied RFA numbers 16 through 20, which sought admissions
that the County fulfilled its statutory duties to her.




                                 20
       After nonsuit was granted, the County moved for attorney
fees totaling $85,459.50 pursuant to section 2033.420. The trial
court granted the motion as to RFA numbers 1 through 12, but
found Doe had good reason to refuse to admit RFA numbers 16
through 20. Thus, it ordered Doe to pay to the County $19,500 in
attorney fees, equal to 100 hours at $195 per hour.
       Doe contends she reasonably refused to admit RFAs 1
through 10 because she could not recall the exact days when her
County social workers visited her. At trial, however, Doe
acknowledged she met with Arnold, her assigned County social
worker, twice at the Sykes foster home and “many” other times.
Arnold also testified to monthly visits with Doe. This testimony
was supported by the contact logs maintained by the County
which described the visits made by Arnold on March 13, April 8,
May 29, June 12, July 2, August 7, and September 8. The County
provided the logs to Doe in discovery and Doe does not contend
the County’s records were incomplete or false. Since RFAs are
not limited to matters within the personal knowledge of the
responding party, that party has a duty to make a reasonable
investigation of the facts. (Wimberly v. Derby Cycle Corp. (1997)
56 Cal.App.4th 618, 634.)
       To support her contention that her denial of RFA numbers
1 through 10 was reasonable, Doe cites only to her own self-
serving testimony that Arnold was not truthful in her testimony
about the frequency of the visits and that Doe often was unable to
contact Arnold by phone. Given the County’s records and her
obligation to make a reasonable investigation, the trial court did
not abuse its discretion to conclude Doe unreasonably refused to
admit RFA numbers 1 through 10.




                               21
       As to RFA numbers 11 and 12, Doe argues she did admit
them. Not so. The two RFAs sought admission that Doe first
reported the rape at a court hearing and to Arnold on September
28, 2009. Doe initially responded she could not admit or deny the
RFA because investigation and discovery were still ongoing. She
later provided a supplemental response: “Deny to the extent that
Appellant cannot recall Valerie Arnold visiting Responding Party
on this date.” The responses were identical as to both RFAs. Doe
contends the supplemental response admits RFA numbers 11 and
12. We do not read the supplemental response as an admission
that Doe reported the rape on September 28, 2009. Indeed, a fair
reading of the supplemental response indicates she contests she
reported the rape on that date. The trial court did not abuse its
discretion to award attorney fees because Doe unreasonably
denied RFA numbers 11 and 12.
       We find meritless Doe’s contention that attorney fees are
not warranted because none of the facts underlying the RFAs
were used by the trial court in its nonsuit determination. Relying
on Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865 (Stull), Doe
contends that because nonsuit was granted, Defendants never
presented evidence to the jury, and no attorney fees were
warranted. Stull is distinguishable.
       There, the responding party refused to admit an RFA
during discovery but later conceded its truth before trial began.
As a result, there was no trial and no need to offer proof of the
RFA. (Stull, supra, 92 Cal.App.4th at pp. 865–866.) Here, trial
had begun and Defendants were required to present evidence to
the jury during Doe’s case-in-chief regarding the dates she met
with Arnold and when she told her social workers about the rape.




                               22
Stull does not prevent Defendants from recovering attorney fees
under these circumstances.
       Neither are we convinced RFA numbers 1 through 10 have
no substantial importance because the trial court did not rely on
them in its nonsuit ruling. Doe’s principal claim against the
County was that it failed to adequately monitor Doe, resulting in
harm by the Winston brothers. The frequency of the County’s
visits to Doe at Sykes’s home was central to Doe’s claim. RFA
numbers 11 and 12 also were also of substantial importance to
the case, since they involve Doe’s withholding of information
about the rape from her social workers, a key component of
foreseeability.
       Finally, we find the trial court did not abuse its discretion
by awarding $19,500 in attorney fees to the County. Doe has
made no showing that the amount is unreasonable except to
argue that the County should only recover fees for working on the
RFAs themselves. Contrary to her contention, section 2033.420
expressly requires the other party pay the reasonable expenses
incurred in proving the truth of the RFAs. We find no abuse of
discretion in the amount of the award.
V.     The Trial Court Did Not Abuse Its Discretion to
       Refuse to Tax Certain Costs
       After the trial court granted nonsuit, Defendants filed a
memorandum of costs, requesting a total of $146,717.87 pursuant
to section 1033.5. Doe filed a motion to tax costs, seeking to
strike $113,4259.69 from the total sought by Defendants. After
extensive briefing and argument, the trial court taxed $32,289.15
from the amount requested and ordered Doe to pay $114,428.72
in costs.




                                23
       Doe challenges certain costs the trial court allowed.
Defendants9 concede that the investigative expenses in the
amount of $6,988.37 are not allowable under section 1033.5,
subdivision (b)(2). We amend the postjudgment order
accordingly, but otherwise find substantial evidence supports the
costs order.
       A. Standard of Review
       “Except as otherwise expressly provided by statute, a
prevailing party is entitled as a matter of right to recover costs in
any action or proceeding.” (§ 1032, subd. (b).) Section 1033.5
lists the items allowable as costs and those that are not. Section
998 also entitles the prevailing party to recover certain costs that
are otherwise disallowed under section 1033.5. Allowable costs
must be “reasonably necessary to the conduct of the litigation”
and “reasonable in amount.” (§ 1033.5, subd. (c)(2)–3).) Costs
that are “merely convenient or beneficial to its preparation” are
disallowed. (§ 1033.5, subd. (c)(2).)
       The losing party may dispute any or all the items in the
prevailing party’s memorandum of costs by filing a motion to
strike or tax costs. (Cal. Rule of Court, rule 3.1700(b).) If items
on a memorandum of costs appear to be proper charges on their
face, those items are prima facie evidence that the costs,
expenses, and services are proper and necessarily incurred.
(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266;
Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256,
266.) The burden then shifts to the objecting party to show them
to be unnecessary or unreasonable. (Nelson v. Anderson (1999)
72 Cal.App.4th 111, 131.)

9     The County joined in the arguments set forth by Children’s
Institute on this issue.




                                 24
       Whether a cost item was reasonably necessary to the
litigation presents a question of fact for the trial court and its
decision is reviewed for an abuse of discretion. (Lubetzky v.
Friedman (1991) 228 Cal.App.3d 35, 39.) “The trial court’s
exercise of discretion in granting or denying a motion to tax costs
will not be disturbed if substantial evidence supports its
decision.” (Ibid.)
       B. Filing Fees Are Recoverable Trial Costs
       Filing fees are recoverable under section 1033.5,
subdivision (a)(1). Nevertheless, Doe argues filing fees are not
recoverable in this case because the County is exempt from
paying filing fees under Government Code section 6103.
Although a public agency is exempt from paying filing fees, they
are nevertheless incurred. (Guillemin v. Stein (2002) 104
Cal.App.4th 156, 164.) Thus, they are recoverable as costs.
(§ 1033.5, subd. (c)(1) [“Costs are allowable if incurred, whether
or not paid.”].)
       Doe also disputes the amount of the fees, contending they
must be courier fees because they do not reflect the fees listed in
the Superior Court’s fee schedule for 2012. Doe presents no
evidence to show the fees sought to be recovered by Defendants
are courier fees, beyond the bald assertion that they are. This is
insufficient to meet her burden to show the cost was not proper.
In any event, we see no prejudice to Doe as the fees Defendants
seek to recover are substantially less than the fees listed in the
Superior Court’s fee schedule (e.g., Defendants seek to recover
$57.90 to file an answer when the fee schedule lists $435 to file
an answer). The trial court did not abuse its discretion to award
these fees.




                                25
       C. Service of Process Fees Are Recoverable Trial
       Costs
       Doe next challenges the recovery of fees related to service of
process for witnesses who were never deposed and never testified
at trial. In general, service of process fees are recoverable under
section 1033.5, subdivision (a)(4). As Doe acknowledges, the Code
of Civil Procedure does not limit the recovery of service of process
fees to witnesses used at trial. Doe presents no evidence to
demonstrate the witnesses were not “reasonably necessary to the
conduct of the litigation” (§ 1033.5, subd (c)(2)) despite not having
testified at trial. Thus, the trial court did not abuse its discretion
to decline to tax these costs.
       D. Expert Witness Fees Are Recoverable Trial Costs
       Doe also disputes Defendants’ recovery of their expert
witness fees because their experts were not ordered by the trial
court, as required under section 1033.5, subdivision (b)(1).
However, expert fees incurred and reasonably necessary in the
preparation for trial are recoverable as a discretionary item of
costs pursuant to section 998.10 (Jones v. Dumrichob, supra,
63 Cal.App.4th at p. 1262.)




10    Code of Civil Procedure section 998, subdivision (c)(1),
provides: “If an offer made by a defendant is not accepted and
the plaintiff fails to obtain a more favorable judgment or
award, . . . the court or arbitrator, in its discretion, may require
the plaintiff to pay a reasonable sum to cover postoffer costs of
the services of expert witnesses, who are not regular employees of
any party, actually incurred and reasonably necessary in either,
or both, preparation for trial or arbitration, or during trial or
arbitration, of the case by the defendant.”




                                 26
       Doe asserts the trial court abused its discretion by allowing
recovery of the fees for expert Clark Clipson, a witness who did
not testify at trial. Doe fails to meet her burden to show why
Clipson was not reasonably necessary in the preparation of
Defendants’ case for trial. Doe acknowledges Clipson was
deposed, but claims reimbursement for this expense is not
allowed because his deposition testimony was not read at trial.
Because Doe presents no evidence to support an argument that
his expertise was not reasonably necessary to prepare for trial,
the trial court did not abuse its discretion to award the expert
witness fees.
       E. Copying Costs Are Recoverable Trial Costs
       Doe additionally challenges the amount awarded for
photocopies of the trial exhibits. Doe arbitrarily assigns a
“reasonable” rate of 10 cents per page for photocopies. From
there, she calculates Defendants may not recover more than $200
for photocopying the trial exhibits. Again, Doe presents no
evidence to demonstrate that 10 cents per page for photocopies is
a “reasonable” rate. We find the trial court did not abuse its
discretion when it found Defendants are entitled to recover
$1,547.03 for photocopies of the trial exhibits.
       F. Lodging and Meal Expenses Are Recoverable
       Trial Costs
       Doe next complains of the trial court’s decision to allow
recovery of $33,723.28 in expenses for meals and lodging. We are
not persuaded.
       Doe acknowledges these costs may be recoverable subject to
the trial court’s discretion under section 1033.5, subdivisions
(c)(2) and (c)(4). However, she argues the trial court abused its
discretion to allow their recovery in this case because “[l]awyers




                                27
must eat whether they are conducting litigation or not.” (Ladas
v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774
(Ladas).) Ladas is inapplicable because it involved seeking
reimbursement for meal expenses while attending local
depositions. Meal expenses incurred by attorneys while
attending out-of-town depositions, on the other hand, have been
held to be recoverable. (Howard v. American National Fire Ins.
Co. (2010) 187 Cal.App.4th 498, 541 [“Although the incurring of
meal expenses may be merely convenient to an attorney
attending a local deposition, meal expenses may be reasonably
necessary where an out-of-state attorney must travel to the
deposition”]; Gorman v. Tassajara Development Corp. (2009)
178 Cal.App.4th 44, 72 [distinguishing local meal expenses from
meal expenses incurred while traveling].) In this case, the meal
expenses at issue were incurred during trial, which was located
approximately 90 miles from defense counsel’s office in Oxnard.
Accordingly, there was no abuse of discretion.
      Doe also challenges the court’s allowance of travel expenses
incurred by a Sacramento-based legal assistant, who Doe asserts
was not reasonably necessary to the litigation and who could
have been replaced by a local legal assistant. However,
Defendants explained the legal assistant was defense counsel’s
paralegal, and had been involved in the case from the outset.
Indeed, she assisted with the preparation, organization, and
management of exhibits, documents, and witnesses. She also
helped finalize and file documents prepared during trial. Once
again, we find the trial court acted within its discretion in
concluding her presence at trial was reasonably necessary to
conduct the litigation and in allowing recovery of her meals and




                               28
lodging expenses. (§ 1033.5, subd. (c)(2); see also Chaaban v. Wet
Seal, Inc. (2012) 203 Cal.App.4th 49, 59–60.)
       Doe also suggests Defendants sought double recovery for
certain witnesses by requesting travel expenses for witnesses for
whom they had already requested ordinary witness fees (which
include travel expenses). However, Doe has failed to identify who
these witnesses are and what fees were allegedly recovered, so we
decline to entertain this contention.
       G. Courier Fees Are Recoverable Trial Costs
       Doe next contends it was improper to award $853.59 in
courier fees when postage is not recoverable under section 1033.5,
subdivision (b)(3). Courier and messenger fees are recoverable,
at the discretion of the trial court, if they are reasonably
necessary to the conduct of the litigation. (Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 857–858 [rejecting
argument that messenger fees were not recoverable because they
could have been avoided by using postal service]; Ladas, supra,
19 Cal.App.4th at p. 776.) Doe’s argument presupposes that it
was unnecessary to have a courier do what the U.S. Postal
Service can do equally as well. Yet, Doe has presented no
evidence to support the argument that use of the postal service
was appropriate in all circumstances, given the complexity of this
litigation. The trial court was within its discretion to decide
otherwise.
       H. Litigation Support Vendor Fees Are Recoverable
       Trial Costs
       Lastly, Doe argues telephonic appearance fees and trial
equipment fees were not reasonably necessary to the conduct of
the litigation, but instead were merely convenient or beneficial.
Doe provides no evidence or additional facts to support this




                               29
statement. Fees for telephonic court appearances are “a
recoverable cost under Section 1033.5 . . . ” (§ 367.6, subd. (c).)
Likewise, costs for audio-visual equipment are recoverable under
section 1033.5, subdivisions (a)(13) or (c)(4). Doe has not met her
burden to show the award of these costs was an abuse of
discretion.
                          DISPOSITION
      The judgment of nonsuit is affirmed. The postjudgment
order dated November 17, 2016, is modified to reflect trial costs
are additionally taxed $6,988.37 for disallowed costs for
investigative expenses. The postjudgment orders awarding trial
costs and attorney fees are otherwise affirmed. Defendants to
recover their costs on appeal.



                                           BIGELOW, P. J.
We concur:



             STRATTON, J.




             WILEY, J.




                                30
Filed 7/18/19
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT

JANE DOE,                                B276699

       Plaintiff and Appellant,          (Los Angeles County
                                         Super. Ct. No. TC025247)
       v.
                                         ORDER MODIFYING
DEPARTMENT OF CHILDREN                   OPINION AND
AND FAMILY SERVICES et al.,              CERTIFYING
                                         PUBLICATION
       Defendants and Respondents.
                                         [change in the judgment]

      IT IS ORDERED that the opinion filed in the above-
captioned matter on June 20, 2019, be modified as follows:
      1. On page 9, in the second full paragraph, the following
footnote is added to the end of the second sentence, which reads,
“her placement in the Sykes home was the best one she had ever
had.”
      By this statement, we do not suggest it was Doe’s
responsibility to alert Children’s Institute or the County to any
misconduct or potential harm. Nor do we imply that Doe’s stated
contentment with her placement released Defendants from their
duties to her.
      2. On page 17, lines 7 and 8, the phrase “that it was
unwanted” is deleted.

       This modification effects change in the judgment.
      The opinion in the above entitled matter, filed on June 20,
2019, and modified on July 18, 2019, was not initially certified for
publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official
Reports and it is so ordered.




____________________________________________________________
BIGELOW, P. J.              STRATTON, J.          WILEY, J.




                                 2
