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Authorized ‘Capacity’ of Child-Care Center Not Gauged by Enrollment, C.A. Declares
By a MetNews Staff Writer
A non-profit pre-school day-care center that, under its state license, had a “capacity” of 77 children did not exceed that limit by enrolling more than 77 tots, the Court of Appeal for this district has held, because it was not shown that more than the permitted number were present at any one time.
The license, issued by the Department of Social Services (“DSS”) to Pacific Oaks College & Children’s Programs, set a “total capacity.” In violation of the limitation, the plaintiffs alleged in a class action under the Unfair Competition Law and the False Advertising Law seeking a refund of tuitions, the defendant facility had enrolled as many as 242 children.
“[U]nder the circumstances of this case,” Justice Rashida Adams of Div. Three wrote, “attendance, not enrollment, was the correct measure of ‘capacity.’ ”
Differing Schedules
She explained that some children, ages 2-5, attend the pre-school in Pasadena only in the mornings, some only in the afternoon, some full-time. In a published portion of the opinion, filed Thursday, she said:
“We acknowledge that under some circumstances, enrollment numbers and attendance numbers might be functionally the same, or similar enough that enrollment numbers could provide circumstantial evidence or an inference of the number of children actually in attendance at any one time. In this case, however, the evidence established that the enrollment numbers in question were not a reliable proxy for how many children were physically present at Pacific Oaks at any given time.”
Adams continued:
“The enrollment numbers plaintiffs sought to rely upon were aggregate numbers that did not take into account the timing of different programs. The evidence affirmatively established that all enrolled children were not on campus at the same time. Instead, in any given class, some children attended only in the morning, some only in the afternoon, some all day. The enrollment numbers plaintiffs relied upon did not reflect these differences in attendance. Those numbers alone were therefore insufficient to establish a violation of the DSS license capacity limit.”
Code of Regulations
The jurist pointed out that 22 California Code of Regulations §101152(c)(2), defines “capacity” in terms of “the maximum number of children authorized to be provided care and supervision at any one time in any licensed child care center” and §101179(a) is to like effect, using the words, “at any given time.” She wrote:
“A child care center can only provide care and supervision to children who are physically present at the center’s facility. The phrase ‘at any one time,’ in its ordinary usage, means at a given moment in time, as does ‘at any given time.’ Under the plain language of the regulation, ‘capacity’ is an upper limit on the number of children who may be physically present at a child care facility while under the facility’s care and supervision.”
The action was initially brought in 2012 by Matteo Baker, a minor, suing through his guardian ad litem, alleging that by virtue of lax supervision, he wandered into a playground on the premises and suffered a “near-death” experience that traumatized him. In 2014, class-action allegations were added, and plaintiffs hopped aboard, seeking refunds on the theory that the school had operated in violation of its license.
The case is Baker v. Pacific Oaks Education Corporation, 2024 S.O.S. 364.
Representing the named plaintiffs and the certified class were Allan A. Shenoi and Daniel J. Koes of the Pasadena firm of Shenoi Koes. Benjamin Caryan of that firm also represented Matteo.
Jesse Steinbach of the Los Angeles office of Alston & Bird acted for the day care center, as did Terance A. Gonsalves of the firm’s Atlanta office.
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