D.R. et al v. Contra Costa County CA et al

Filing 197

ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF. Signed by Judge Maxine M. Chesney on August 30, 2024. (mmclc1, COURT STAFF) (Filed on 8/30/2024)

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6
7

D. R., et al.,
Plaintiffs,

8

CONTRA COSTA COUNTY CA, et al.,
Defendants.

11

United States District Court
Northern District of California

ORDER DENYING PLAINTIFFS'
MOTION FOR RELIEF

v.

9
10

Case No. 19-cv-07152-MMC

12
13

Before the Court is the Motion, filed May 16, 2024, on behalf of plaintiffs D.R.,1

14

John Freeman ("Freeman"), and Cristina Ramirez ("Ramirez"), "for Relief from Order

15

Granting Summary Judgment and Order Granting Motion for Dismissal of the Third

16

Amended Complaint." Defendants Contra Costa County ("County") and Tasha Mizel

17

("Mizel") (collectively, "County Defendants") have filed opposition, to which plaintiffs have

18

replied. Having read and considered the parties' respective written submissions, the

19

Court rules as follows.2
BACKGROUND

20
21

In the instant action, plaintiffs assert claims arising out of the detention of D.R. by

22

the County's Children & Family Services ("CFS"), the subsequent dependency

23

proceedings in state court including the placement of the child in foster care, the child's

24

death while in the custody of a foster parent, and actions taken by CFS employees after

25
26
27
28

1

D.R. is a deceased minor who appears through her successor-in-interest John
Freeman.
2

By order filed August 12, 2024, the Court took the matter under submission.

1

the death.
By order filed March 4, 2022, the Court granted in part and denied in part County

2
3

Defendants' motion to dismiss the operative complaint, namely, the Third Amended

4

Complaint ("TAC"); in so doing, the Court dismissed all claims brought on behalf of

5

Freeman and dismissed some of the claims brought on behalf of D.R. and on behalf of

6

Ramirez. By order filed April 18, 2024, the Court ruled on County Defendants' motion for

7

summary judgment, finding, with one exception, County Defendants were entitled to

8

summary judgment as to all remaining claims, the exception being one claim that was

9

dismissed without further leave to amend, rather than summarily adjudicated.
On April 18, 2024, the Clerk of Clerk entered judgment.

10

DISCUSSION

United States District Court
Northern District of California

11

Under Rule 60(b), a court may "relieve a party" from "a final judgment, order, or

12
13

proceeding" for six specified reasons, including two reasons on which plaintiffs rely,

14

namely, "mistake, inadvertence, surprise, or excusable neglect," see Fed. R. Civ. P.

15

60(b)(1), and "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

16

misconduct by an opposing party," see Fed. R. Civ. P. 60(b)(3).
Plaintiffs seek relief from four rulings made in the order resolving County

17
18

Defendants' motion to dismiss the TAC, as well as from one ruling made in the order

19

resolving County Defendants' motion for summary judgment. The Court considers these

20

arguments, in turn.

21

A. Dismissal of Plaintiffs' Municipal Liability Claim: Seizure of D.R.
In the TAC, plaintiffs asserted, as Count 2 in the Fourth Cause of Action, municipal

22
23

liability claims against the County, pursuant to 42 U.S.C. § 1983. One of the claims

24

included within Count 2 was that "Does," identified as CFS "social workers," unlawfully

25

seized D.R. from the hospital in which she was born, in that they did not have a warrant

26

and no exigent circumstances existed (see TAC ¶¶ 213, 258), and that such seizure

27

occurred pursuant to "the County's customs and practices" (see TAC ¶¶ 259-260).

28

//
2

1

In dismissing the claim, the Court ruled as follows:

2

In dismissing the Fourth Cause of Action, as alleged in the FAC, the Court
found plaintiffs failed to provide sufficient notice of the basis for the claim,
as plaintiffs did no more than identify the factual allegations on which their
Third Cause of Action was based and then alleged, as a conclusion, the
existence of a municipal policy to engage in such activity.

3
4
5
6
7
8
9

United States District Court
Northern District of California

10

With regard to the seizure, plaintiffs have not added in the TAC any
allegations sufficient to plead a municipal policy or practice under which
DCFS employees were acting when they seized D.R. without a warrant.
Rather, as in the FAC, plaintiffs again identify the factual allegations
describing that seizure, and then allege as a conclusion that a municipal
policy to engage in such activity exists. (Compare FAC ¶¶ 204.b, 204.c,
204.g. with TAC ¶¶ 259.a, 259.b, 259.f.)
(See Order, filed March 4, 2022, at 20:21-21:3.)
Plaintiffs do not expressly identify any basis for relief from said ruling, and, indeed,

11

do not assert the TAC did include non-conclusory allegations as to the existence of a

12

municipal policy, allegations that are required. See AE ex rel. Hernandez v. County of

13

Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (holding, at pleading state, plaintiff asserting

14

municipal liability claim must allege "plausible facts" to identify "policy or custom").

15

Rather, plaintiffs note they had attached to their opposition to the motion to dismiss a

16

"policy document" that, according to plaintiffs, constitutes "proof" that the County "did not

17

have a valid warrant policy" (see Pls.' Mot. for Relief at 15:20-25), thus, apparently,

18

contending the submission of said document with their opposition required the Court to

19

find the municipal liability claim was sufficiently pleaded. Under such circumstances, the

20

Court understands plaintiffs to be arguing that the Court, in dismissing the above-

21

described municipal liability claim, engaged in a legal error. See Kemp v. United States,

22

596 U.S. 528, 530 (2022) (interpretating "mistake," as used in Rule 60(b)(1), to include "a

23

judge's errors of law").

24

Plaintiffs, however, have failed to show any error. The referenced exhibit, a 10-

25

page document that appears to be part of a CFS "Handbook" (see Doc. No. 82-1), was

26

not attached to the TAC, nor did plaintiffs seek leave to amend to attach it to a proposed

27

Fourth Amended Complaint or to allege its contents in such proposed pleading. More

28

importantly, any such leave, had it been requested, would have been denied as futile, as
3

United States District Court
Northern District of California

1

plaintiffs do not identify any unconstitutional custom or practice included therein; rather,

2

the document sets forth the protections provided to parents under the Fourth

3

Amendment, as well as under case authority and statutes, and, in particular, explains in

4

detail that a social worker cannot seize a child in the absence of a court order, exigent

5

circumstances, or consent. (See id.)

6

Additionally, in seeking relief from the dismissal of the above-described municipal

7

liability claim, plaintiffs refer to evidence they obtained during the course of discovery, all

8

of which discovery appears to have been obtained after the dismissal and while other

9

claims remained pending. Although plaintiffs argue such evidence would support the

10

municipal liability claim that was dismissed, plaintiffs fail to identify any cognizable basis

11

for reconsideration of the dismissal in light of their having obtained such evidence. In

12

particular, plaintiffs never sought reconsideration in light of such discovery, and do not

13

assert such failure was the result of excusable neglect on the part of their counsel or

14

anyone else. Nor do plaintiffs suggest defendants engaged in some type of fraud or

15

misrepresentation that precluded plaintiffs from seeking leave to amend.3

16

Accordingly, to the extent plaintiffs seek relief from the ruling dismissing the

17

above-referenced municipal liability claim contained in Count 2 of the Fourth Cause of

18

Action, the motion will be denied.

19

B. Dismissal of D.R.'s § 1983 Claim Against Mizel/Does: Failure to Protect

20

In the TAC, plaintiffs asserted, as Count 3 in the Third Cause of Action, a survival

21

action under 42 U.S.C. § 1983 brought on behalf of D.R. and against Mizel, a social

22

worker employed by CFS, as well as against Does employed by CFS, based on a "failure

23

to protect" theory. (See TAC at 33:2-4 and ¶ 226.) In particular, plaintiffs alleged that

24
25
26
27
28

3

In seeking relief from the order dismissing the above-discussed claim, as well as
the dismissal of other claims discussed below, plaintiffs do not argue that the evidence on
which they rely meets the standard set forth in Rule 60(b)(2), i.e., that the evidence
constitutes "newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b)." See Fed. R. Civ. P.
60(b)(2).
4

1

Mizel and the Does failed to "inspect the foster home and the sleeping arrangements for

2

D.R." (see TAC ¶ 230), and that Mizel "knew" of "obvious dangers" in the foster home,

3

such as the "swaddl[ing]" of D.R. by the foster mother, Marcie Franich ("Franich"), who

4

allegedy was aware D.R. was able to "roll over on her stomach," and the use of a

5

"DockATot" (see TAC ¶¶ 148, 232-235).

6

In dismissing the claim, as pleaded in the TAC, the Court ruled as follows:

7

Children found to be dependents of a court hold "protected liberty interests
in being shielded from harm inflicted by a foster parent," see Tamas v.
Department of Social & Health Services, 630 F.3d 833, 842 (9th Cir. 2010),
and are deprived of said liberty interests if social workers "act with such
deliberate indifference [thereto] that their actions shock the conscience,"
see id. at 844 (internal quotation and citation omitted). For a state actor to
"act with deliberate indifference, he must recognize the unreasonable risk
and actually intend to expose the plaintiff to such risks without regard to the
consequences to the plaintiff"; stated otherwise, he "needs to know that
something is going to happen but ignore the risk and expose the plaintiff to
it." See Herrera v. Los Angeles Unified Sch. Dist., 18 F.4th 1156, 1158-59
(9th Cir. 2021) (internal quotations, alterations, and citation omitted).

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24

(See Order, filed March 4, 2022, at 16:25-17:7.) The Court continued, as follows:
In its September 15 Order, the Court, in dismissing the claim as alleged in
the FAC, found as follows:
Here, as County Defendants correctly observe, the FAC includes
insufficient facts to support a finding that Mizel, or any other County
employee, acted with deliberate indifference to D.R.'s safety, either
at the time D.R. was placed with Franich or during the approximately
three months in which she was in Franich's care. Rather, the facts
alleged support, at best, a finding of negligence. (See, e.g., FAC
¶ 88 (alleging unnamed DCFS employees "failed to ensure" Franich
had "sufficient knowledge and skills to take care of an infant, such as
knowledge of safe sleeping practice[s] and how to administer CPR to
an infant"); FAC ¶ 90 (alleging Mizel "failed to supervise and monitor
[ ] Franich").) Negligence, even if "gross," is, however, insufficient to
support a deliberate indifference claim. See L.W. v. Grubbs, 92 F.3d
894, 899 (9th Cir. 1996) (holding, where plaintiff alleged defendant
was deliberately indifferent to her safety needs, "tortious conduct,
when proved, may well result in some state law remedy, but gross
negligence, in and of itself, is not unconstitutional").
(See id. at 17:8-18 (quoting Order, filed September 15, 2020, at 15:6-18).) The Court

25
concluded, as follows:
26
27
28

In the TAC, plaintiffs have added allegations that Mizel knew "the
DockATot, because of its construction, is fatally dangerous if D.R. was
swaddled and put in it unsupervised because if D.R. turned over she could
[be] suffocated" (see TAC ¶ 170; see also TAC ¶ 225), and that Mizel "knew
5

1

one month before the death that the infant D.R. had managed to roll over
on her stomach on her own and that she was often swaddled tightly" (see
TAC ¶ 232.) Although these additional factual allegations, like those in the
FAC, may support a finding of negligence, they are insufficient to support a
finding that Mizel or any Doe defendant "actually intended," by placing D.R.
with Franich and/or by not removing D.R. from Franich's care, to expose
D.R. to the risk of asphyxiation. See Herrera, 18 F.4th at 116-61.

2
3
4
5

(See id. at 17:19-28.)
In seeking relief from the above-quoted ruling, plaintiffs identify evidence they

United States District Court
Northern District of California

6
7

state they obtained that, in their view, would show Mizel and/or Does deprived D.R. of her

8

liberty interest in being shielded from harm inflicted by a foster parent. As is the case

9

with the above-discussed claim, however, plaintiffs fail to identify any cognizable basis for

10

reconsideration of the dismissal predicated on their having obtained such evidence,

11

particularly given that plaintiffs never sought relief in light of any such evidence.
Accordingly, to the extent plaintiffs seek relief from the ruling dismissing Count 3 in

12
13

the Third Cause of Action, the motion will be denied.

14

C. Dismissal of D.R.'s Municipal Liability Claim: Failure to Protect
In the TAC, plaintiffs asserted, as Count 3 in the Fourth Cause of Action, a survival

15
16

action under 42 U.S.C. § 1983, brought on behalf of D.R. and against the County, based

17

on the theory that the alleged failure by Mizel and the Does to protect D.R. from the foster

18

parent occurred as a result of "the County's customs and practices." (See TAC ¶¶ 264,

19

269.)

20

In dismissing the claim, the Court found that, because the failure to protect claim

21

against Mizel and the Does was "insufficiently pleaded . . ., a [municipal liability] claim

22

against the County necessarily fails." (See Order, filed March 4, 2022, at 20:12-16 (citing

23

Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 2008) (holding

24

"[b]ecause there is no constitutional violation, there can be no municipal liability").)

25

In seeking relief from the above-quoted ruling, plaintiffs cite to a County report and

26

to deposition testimony provided by Franich that, in plaintiffs' view, would support a

27

finding that any failure to protect on the part of Mizel and/or the Does was the result of a

28

municipal policy. As is the case with the above-discussed two claims, however, plaintiffs
6

1

fail to identify any cognizable basis for reconsideration of the dismissal in light of their

2

having obtained, apparently after the dismissal, evidence that might support the claim,

3

particularly given that plaintiffs never sought relief in light of any such evidence.

4
5

the Fourth Cause of Action, the motion will be denied.

6

D. Dismissal of Freeman's 42 U.S.C. § 1983 Claim: Handling of Remains

7

United States District Court
Northern District of California

Accordingly, to the extent plaintiffs seek relief from the ruling dismissing Count 3 in

In the TAC, plaintiffs asserted, as Count 2 in the Third Cause of Action, a claim

8

that Does deprived plaintiffs of their constitutional rights, in violation of 42 U.S.C. § 1983.

9

One of the claims included within Count 2 asserted that Freeman was deprived of his

10

"rights under [the] 14th Amendment to have the cause of the death determined, to have a

11

say in the disposal of the body and to conduct a funeral for [D.R.]" (see TAC ¶ 222),

12

which deprivation allegedly occurred when Mizel, acting under an "order" of "her

13

supervisor" and/or the CFS "director," called Freeman "a few days after the death, while

14

he was in distress and mourning, [and] fraudulently induced consent to cremate the

15

body" (see TAC ¶¶ 119, 186, 210).4

16

In dismissing the claim, the Court ruled as follows:

17

A parent has a liberty interest in "the companionship, care, custody, and
management of their children." See Brittain v. Hansen, 415 F.3d 982, 992
(9th Cir. 2006). As the Ninth Circuit has explained, however, such liberty
interest is held only by a parent who has "legal custody" of a child or, at a
minimum, "visitation rights." See id. Here, Freeman does not allege he had
custody of D.R. or visitation rights . . . at any time, and, consequently, has
failed to allege facts to show he had a liberty interest.

18
19
20
21
22

(See Order, filed March 4, 2022, at 14:18-28; see also id. at 16:9-10.)
Plaintiffs do not expressly identify any basis for relief from said ruling, other than to

23

"request that the Court reverse its ruling on Freeman's standing to prevent a bad

24

precedent against fathers." (See Pls.' Mot. for Relief at 15:17-18.) To the extent such

25

assertion is meant to suggest that the Court, in dismissing the above-described claim,

26
27
28

4

As noted, the claim is brought against Does, who the Court understands to be
Mizel's supervisor and the Director of CFS.
7

1

United States District Court
Northern District of California

2

engaged in a legal error, no such showing has been made.
In particular, although the Ninth Circuit has held a parent's liberty interest in the

3

"companionship, care, custody, and control" of his/her child "reasonably extends to

4

decisions dealing with death, such as . . . how to dispose of the remains," see Marsh v.

5

County of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (internal quotation and citation

6

omitted), such liberty interest, as was discussed in the order dismissing the claim, has not

7

been recognized where a parent does not have custody or visitation rights. To the extent

8

plaintiffs contend Freeman had a right under state law to decide how to dispose of the

9

remains, and that he therefore obtained a federally-recognized liberty interest, such

10

argument is unsupported by any authority, let alone by "clearly established" law

11

necessary to support a § 1983 claim. See Siegert v. Gilley, 500 U.S. 226, 231 (1991)

12

holding plaintiff fails to state federal civil rights deprivation claim in the absence of

13

alleging "violation of a clearly established constitutional right"); see also Reichle v.

14

Howards, 566 U.S. 658, 664 (2012) (holding federal constitutional right is "clearly

15

established" where "existing precedent" places "constitutional question beyond debate")

16

(internal quotation and citation omitted).

17

Accordingly, to the extent plaintiffs seek relief from the ruling that Count 2 in the

18

Third Cause of Action, as asserted on behalf of Freeman and based on a theory he was

19

deprived of a liberty interest to control D.R.'s remains, the motion will be denied.

20

E. Summary Judgment of Ramirez's Claims: Handling of Remains

21

The TAC includes two claims based on the allegation that "Mizel did not receive

22

consent from [Ramirez,] D.R.'s mother[,] to have the body cremated." (See TAC ¶ 120).

23

Specifically, plaintiffs assert (1) the Second Cause of Action, a state law claim against

24

Mizel and Does, titled "Negligence and Negligence Per Se – Usurpation of Infant's

25

Remains; Negligent Infliction of Emotional Distress" (see TAC at 24:5-8) and (2) a claim

26

within Count 2 in the Third Cause of Action, which as set forth in more detail in the

27

previous section, was brought under § 1983 and included a claim against Does, based on

28

the alleged deprivation of the Fourteenth Amendment right "to have the cause of the
8

1

death determined, to have a say in the disposal of the body and to conduct a funeral for

2

[D.R.]" (see TAC ¶ 222). To the extent those two claims were asserted on behalf of

3

Ramirez, neither was dismissed at the pleading stage; rather, each was resolved against

4

Ramirez when the Court granted County Defendants' motion for summary judgment.

5
6

found no triable issue of fact existed and that Mizel and the Does were entitled to

7

summary judgment, as follows:

8
9
10
11

United States District Court
Northern District of California

In its order granting County Defendants' motion for summary judgment, the Court

12
13
14
15
16
17
18
19
20
21
22
23
24

In particular, County Defendants have submitted evidence, undisputed by
plaintiffs, that Mizel, prior to arranging for the cremation, "contacted plaintiff
Ramirez and spoke with her personally" and that "she agreed to cremation."
(See Mizel Decl. ¶ 20.) In response, plaintiffs argue a triable issue of fact
as to consent nonetheless exists, relying on a declaration from Michelle
Rezentes ("Rezentes"), Ramirez's mother, who states therein: "If I had
known about the circumstances of the death, Cristina [Ramirez] and I would
not have given any consent." (See Rezentes Decl. ¶ 16.) As County
Defendants point out, however, Rezentes' speculation as to what Ramirez
may have done had her mother been aware of those circumstances is
inadmissible, and plaintiffs offer no declaration from Ramirez herself.
Accordingly, . . . there being no dispute that Ramirez provided consent to
the cremation, County Defendants are entitled to summary judgment on the
Second Cause of Action, and the Doe Defendants, who, as noted, are a
CFS supervisor and the Director of CFS, both of whom allegedly directed
Mizel to cremate the remains without authorization from Ramirez, likewise
are entitled to summary judgment. See Columbia Steel Fabricators, 44
F.3d at 803.
(See Order, filed April 18, 2024, at 8:16-9:4.)
Plaintiffs seek relief from the above-referenced finding, relying on a declaration
from Ramirez, in which she states in relevant part:
I have never given Tasha Mizel consent to cremate the body of my
daughter D.R.
Besides a phone call informing me that my daughter had passed away, I
have never received a phone call from social worker Mizel, and I have
never talked to her about the cremation.
(See Ramirez Decl. [Doc. No. 185-3] ¶¶ 2-3.)

25
Plaintiffs argue the above-quoted declaration, although not filed with their
26
opposition to the motion for summary judgment, should be considered at this time, due to
27
excusable neglect.
28
9

1
2

inadvertent mistake." See Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.

3

1997). The determination of whether a party’s neglect is "excusable" is "at bottom an

4

equitable one, taking account of all relevant circumstances surrounding the party’s

5

omission." See Pioneer Investment Services Co. v. Brunswick Associates Ltd.

6

Partnership, 507 U.S. 380, 395 (1993). Specifically, in making such equitable

7

determination, a district court must consider “the danger of prejudice to the [non-moving

8

party], the length of the delay and its potential impact on judicial proceedings, the reason

9

for the delay, including whether it was within the reasonable control of the movant, and

10

United States District Court
Northern District of California

"Neglect," as used in Rule 60(b)(1), means "negligence, carelessness [or]

whether the movant acted in good faith." See id.

11

Here, in support of their argument that the failure to timely submit Ramirez's

12

declaration is excusable, plaintiffs rely on declarations of Ramirez and her counsel, Quoc

13

Pham ("Pham"). In her declaration, Ramirez states that she "communicated" with Pham

14

through "phone, email and Facebook messenger," that her phone was "confiscated" by

15

the "Manteca Police Department" during a "traffic stop," and that she "could not check"

16

her "voicemails, email and Facebook accounts for message" without the phone. (See

17

Ramirez Decl. [Doc. 185-3] ¶¶ 7-8). In his declaration, Pham states that he "tried

18

numerous times to reach . . . Ramirez through her phone and Facebook Messenger to

19

get a signed declaration from her," that he "finally got through to Ramirez on April 18,

20

2024, at 4:04 PM," and that he "was able to get two declarations from her on April 20,

21

2024." (See Pham Decl. ¶¶ 2-3.)

22

The Court's ability in this instance to weigh the relevant factors is, as County

23

Defendants observe, hampered, not only by plaintiffs' failure to identify any of the

24

relevant factors, let alone make an argument to why the relevant factors weigh in favor of

25

finding the neglect was excusable, but, equally if not more importantly, the lack of detail

26

in the declarations on which plaintiffs rely. In particular, the Court's ability is determine

27

the length of the delay occasioned by the circumstances identified in the declarations, the

28

reason or reasons for the delay, and whether Ramirez and her counsel have acted in
10

1

good faith is hampered by the lack of any detail as to the dates on which the various acts

2

occurred, such as the date on which Ramirez's phone was confiscated, the date Pham

3

began to contact her, and the date Ramirez was finally able to contact Pham,5 as well as

4

why the event or events that caused Pham to be able to contact her, could not have

5

occurred earlier.

United States District Court
Northern District of California

6

In any event, assuming the Court were to consider Ramirez's declaration at this

7

time and find a triable issue of fact exists as to whether she gave her consent to

8

cremation, plaintiffs, for the reasons discussed below, have failed to show they are

9

entitled to relief from the judgment as to the lack-of-consent claims.

10

1. State Law Claim

11

With respect to the Second Cause of Action, a state law claim based on Ramirez's

12

asserted failure to consent to cremation, County Defendants sought summary judgment

13

on the alternative ground that Ramirez's claim was barred by her failure to submit a

14

timely claim form, as is required by the Tort Claims Act. As was explained in the Court's

15

order granting summary judgment, Ramirez did not dispute that her claim would be

16

barred if the claim presentation requirement applied, but, instead, argued the claim

17

presentation requirement was inapplicable, under the theory that Mizel acted outside the

18

scope of her employment when she allegedly caused the remains to be cremated without

19

Ramirez's consent. (See Order, filed April 18, 2024, at 3:23-5:6, 7:17-26.) Although the

20

Court did not reach that issue in light of its finding there was no evidence that Mizel

21

caused the remains to be cremated without Ramirez's consent, the Court, having now

22

considered the issue, finds, as set forth below, Ramirez's state law claim is barred.

23
24

Plaintiffs argued in opposition to the motion for summary judgment, and argue in
the instant motion, that Mizel's alleged acts were outside the scope of her employment as

25
26
27
28

5

The failure to provide the relevant dates, or even a time frame, stands in sharp
contrast to Pham's providing the precise date and time in which he was able to reach
Ramirez, thus indicating plaintiffs are aware of the importance of providing details as to
timing.
11

United States District Court
Northern District of California

1

a social worker, for the asserted reason that CFS no longer had custody of D.R. after her

2

death. If the trier of fact were to find Ramirez did not give consent, such finding, in turn,

3

could support a finding that Mizel violated state law. See Cal. Health & Safety Code

4

§ 7100(a) (providing "right to control the disposition of the remains of a deceased person"

5

belongs to "surviving competent parent or parents," where deceased did not have "agent

6

under a power of attorney for health case," a surviving spouse, or a surviving child or

7

children). Merely showing a municipal employee has violated state law, however, does

8

not mean the employee was acting outside the scope of his/her employment. Rather, as

9

explained by the California Supreme Court, an employee acts within the "scope of

10

employment," even when "negligen[t]" or engaging in "willful or malicious torts," where

11

"the employee's conduct is not so unusual or startling that it would seem unfair to include

12

the loss resulting from it among the costs of the employer's business," see Farmers Ins.

13

Group v. County of Santa Clara, 11 Cal. 4th 992, 1003-1004 (1995) (observing "scope of

14

employment" is "interpreted broadly"). Such tortious acts are considered within the scope

15

of employment where the employee's assertedly "tortious actions are engendered by

16

events or conditions relating to the employment," see id. at 1006, and not where "the

17

employer inflicts an injury out of personal malice, not engendered by the employment" or

18

"the misconduct is not an outgrowth of the employment," see id. at 1005 (internal

19

quotations and citations omitted).

20

Here, plaintiffs have failed to show the asserted misconduct by Mizel was not

21

"engendered by events or conditions relating to [her] employment" or an "outgrowth" of

22

her employment." See id. at 1005-1006. In particular, plaintiffs fail to offer evidence to

23

support a finding that Mizel's acts, assuming they occurred in the manner set forth in

24

Ramirez's declaration, arose out of "personal malice, not engendered by the

25

employment," or as a result of "personal compulsion," see id. at 1005-1006 (summarizing

26

facts in cases where employee acted outside scope of employment), as opposed to being

27

an outgrowth of Mizel's responsibilities as the social worker assigned to D.R.'s case.

28

Accordingly, even assuming Ramirez's newly-filed declaration is considered, Mizel
12

1

remains entitled to summary judgment on the Second Cause of Action, given Ramirez's

2

failure to submit a timely claim to the County, and the Doe Defendants likewise remain

3

entitled to summary judgment on the same grounds. See Columbia Steel Fabricators,

4

Inc. v. Ahlstrom Recovery, 44 F.3d 800, 803 (9th Cir. 1995) (affirming grant of summary

5

judgment in favor of nonappearing defendant where plaintiff, in response to summary

6

judgment motion filed by appearing defendant, had "full and fair opportunity to brief and

7

present evidence" on dispositive issue applicable to both nonappearing and appearing

8

defendants).

9

United States District Court
Northern District of California

10

2. Federal Claim
With respect to the federal claim based on Mizel's allegedly causing the remains to

11

be cremated without Ramirez's consent, which, as set forth above, is contained in Count

12

2 in the Third Cause of Action, the sole defendants are "Does," who, as also set forth

13

above, are Mizel's supervisor and the Director of CFS.

14

In seeking summary judgment, County Defendants alternatively argued that all

15

claims asserted against Does should be dismissed, as the deadline to amend the

16

pleadings, which was July 1, 2022 (see Pretrial Preparation Order, filed April 29, 2020

17

[Doc. No. 109]), had long passed, and that plaintiffs could not show good cause to extend

18

said deadline to name the Does. Because the Court found there was no evidence

19

demonstrating Mizel, or anyone else, caused the remains to be cremated without

20

Ramirez's consent, the Court did not reach at that time County Defendants' alternative

21

argument. Having now considered the issue, the Court finds Ramirez's federal claim is

22

subject to dismissal for the alternative reason argued by County Defendants.

23

Although a party may seek to amend after the deadline to do so has passed, such

24

party must show "good cause" for an extension. See Johnson v. Mammoth Recreations,

25

Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citing Fed. R. Civ. P. 16(b)). In determining

26

whether "good cause" exists, "the focus of the inquiry is upon the moving party's reasons

27

for seeking modification" and, "[i]f that party was not diligent, the inquiry should end."

28

See id. Here, plaintiffs obtained documents from the state court in April 2020 (see
13

1

Authentication of Exhibits [Doc. No. 173-3] Ex. 1 at 2-3),6 which documents provided the

2

name of Mizel's supervisor as well as the name of the Director of CFS (see id. Ex. 1 at 79

3

("Juvenile Dependency Petition," identifying Mizel's supervisor as Rosario Vidales and

4

identifying Director of CFS as Kathy Marsh)). Plaintiffs fail to explain why they did not

5

seek to amend between that date and the July 1, 2022, deadline, or why, if for some

6

reason good cause may have existed not to name those Does by the July 1, 2022,

7

deadline, why plaintiffs failed to so move at any time thereafter, including in connection

8

with the instant motion.

United States District Court
Northern District of California

9

Accordingly, assuming Ramirez's newly-filed declaration is considered, the claim is

10

subject to dismissal without further leave to amend, there being no named defendant to

11

the claim, and plaintiffs having failed to show good cause to amend to name a defendant

12

at this stage of the proceedings.
CONCLUSION

13
14

For all of the reasons set forth above, plaintiffs' motion for relief from the order

15

dismissing in part the Third Amended Complaint and the order granting summary

16

judgment is hereby DENIED.

17

IT IS SO ORDERED.

18
19

Dated: August 30, 2024
MAXINE M. CHESNEY
United States District Judge

20
21
22
23
24
25
26
27
28

6

In citing to said exhibit, the Court has used herein the page number affixed to the
top of each page by this district's electronic filing program.
14