Watson et al v. County of Santa Clara et al

Filing 360

ORDER by Judge Whyte granting 300 Motion for Summary Judgment; granting in part and denying in part 307 Motion for Summary Judgment; granting 174 Motion for Summary Judgment; granting in part and denying in part 177 Motion for Summary Judgmen t; granting in part and denying in part 207 Motion for Summary Judgment; granting in part and denying in part 209 Motion for Summary Judgment; granting in part and denying in part 230 Motion for Summary Judgment; granting in part and denying in part 233 Motion for Summary Judgment; granting in part and denying in part 236 Motion for Summary Judgment (rmwlc3, COURT STAFF) (Filed on 5/20/2010)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TRACY WATSON, RENEE STALKER, PAM STALKER as Guardian Ad Litem for OLIVIA STALKER, SHAFER WATSON and RILEY WATSON, minors, Plaintiffs, v. COUNTY OF SANTA CLARA, et al., Defendants. On December 4, 2009, the court heard nine motions for summary judgment. Having considered the papers submitted by the parties and the arguments of counsel at the hearing, and for good cause appearing, the motions are granted in part and denied in part as set forth below. Familiarity with the underlying facts and claims is presumed. This action generally arises out of the removal of three minor children from their parents' custody. The state court conducted dependency proceedings and determined that the children should be removed from their parents' custody and placed in the care of a guardian. The court of appeals affirmed. The California Supreme Court denied review. Eventually, the children were reunited with their parents. In the mean time, plaintiffs filed this action asserting various constitutional violations and state law torts against a multitude of defendants arising out of the removal of the three minor children from their
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E-filed on:

5/20/10

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

No. C-06-04029 RMW ORDER ON MOTIONS FOR SUMMARY JUDGMENT [Re Docket Nos. 174, 177, 207, 209, 230, 233, 236, 300 and 307]

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

parents' custody, the conduct of the state court dependency proceedings, and the length and circumstances of supervised visitation prior to the reunification of the children and their parents. All of the defendants have sought summary judgment on the claims asserted against them. A. Unopposed Motions and Withdrawn Claims

Through the parties' papers, it became clear that certain motions are unopposed and certain claims are no longer being pursued by plaintiffs. At the hearing on the motions, plaintiffs' counsel confirmed that plaintiffs are no longer pursuing certain claims and defendants. Accordingly, the court orders as follows: 1) 2) Defendant Singh's motion for summary judgment (Docket No. 174) is granted. Defendants Letona and Hoyt's motions for summary judgment (Docket Nos. 233 and

307, respectively) on plaintiffs' twenty-fourth and twenty-fifth claims for invasion of privacy are granted. 3) granted. 4) Defendants City of San Jose and Hoyt's motion for summary judgment (Docket No. Defendant Norma Sparks' motion for summary judgment (Docket No. 233) is

307) relating to plaintiff Renee Stalker's claims arising from her detention, arrest and interrogation is granted. This includes the seventh, ninth and fourteenth claims for relief. 5) Defendant County of Santa Clara's motion for summary judgment (Docket No. 236)

relating to plaintiffs' claims brought under 42 U.S.C. §1983 arising from the County's alleged policies of conducting harmful interviews of children, of social workers' refusing to meet with parents who insist on having counsel present, of sharing confidential information regarding juvenile proceedings, and of failing to adequately represent the interests of minor clients is granted. 6) Defendants City of San Jose, Hoyt, and Tran's motions for summary judgment

(Docket Nos. 307 and 230, respectively) on plaintiffs' tenth claim for relief arising out of the alleged illegal search of plaintiffs' home and unlawful seizure of records are granted. 7) 8) Defendant Pruitt's motion for summary judgment (Docket No. 300) is granted. Defendant Noble's motion for summary judgment (Docket No. 207) is granted.

The remaining claims and issues presented by the motions are addressed below.
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1 2 3

B.

Contested Motions 1. Collateral Estoppel

Several issues overlap many of the contested motions. Various defendants seek summary

4 judgment on grounds of res judicata, collateral estoppel, or the Rooker-Feldman doctrine, all in 5 essence contending that plaintiffs cannot relitigate issues in this lawsuit that were tried and decided in 6 the state court juvenile proceedings. The state court proceedings involved a lengthy evidentiary 7 proceeding where the parties were represented by counsel, witnesses testified subject to cross8 examination, the issues were vigorously contested and were ultimately decided by the state court. 9 Plaintiffs' appeals to the state court of appeal were unsuccessful. Review by the California Supreme 10 Court was denied. The court has read the parties' briefs and determines that res judicata (i.e., claim United States District Court For the Northern District of California 11 preclusion) does not apply because the claims plaintiffs are asserting are not ones asserted in state 12 court. Similarly, the Rooker-Feldman doctrine does not apply because the plaintiffs are not seeking 13 to overturn a state court judgment. Heinrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007) 14 (Rooker-Feldman doctrine provides that federal district courts lack jurisdiction to exercise appellate 15 review over final state court judgments). Nevertheless, the doctrine of collateral estoppel ­ issue 16 preclusion ­ does apply. 17 The Full Faith and Credit Act, 28 U.S.C. §1738, requires this court to give a state court

18 judgment the same preclusive effect as would be given that judgment under the law of the state in 19 which the judgment was entered. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 20 (1984); Kay v. City of Rancho Palos Verdes, 540 F.3d 803, 808 (9th Cir. 2007). Collateral estoppel, 21 or issue preclusion, precludes the relitigation of issues that were actually tried and decided in prior 22 proceedings. Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990). Collateral estoppel applies when 23 the issue sought to be precluded is identical to the issue decided in the former proceeding, the issue 24 was actually litigated in the former proceeding, the issue was necessarily decided in the former 25 proceeding, the decision in the former proceeding is final and on the merits, and the party against 26 whom preclusion is sought is the same as or in privity with the party to the former proceeding. Id. 27 The doctrine has been applied to bar federal lawsuits involving issues raised, litigated and determined 28 in state court juvenile proceedings. Jensen v. Foley, 295 F.3d 746 (7th Cir. 2002); cf AndersonORDER ON MOTIONS FOR SUMMARY JUDGMENT No. C-06-04029 RMW TER

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1 Francois v. County of Sonoma, 2009 WL 1458240 (N.D. Cal. May 22, 2009) (recognizing that 2 collateral estoppel could apply to preclude litigation of continued detention of children after state 3 court's jurisdictional trial, but did not apply to prevent claim based upon initial warrantless seizure of 4 children). Collateral estoppel applies here. 5 Plaintiffs argue that collateral estoppel does not apply, relying on Lucido and People v.

6 Perciful, 9 Cal. App. 4th 1457 (1992). Both cases are distinguishable on the ground that the 7 subsequent action involved a criminal prosecution, with significantly different public policies at 8 issue, than a subsequent civil proceeding. Plaintiffs' primary argument is that the doctrine does not 9 apply because they did not have a full and fair opportunity to litigate the issues in the state court.1 10 Plaintiffs rely on Durkin v. Shea & Gould, 92 F.3d 1510 (9th Cir. 1996), and Luben Industries v. United States District Court For the Northern District of California 11 United States, 707 F.2d 1037, 1039 (9th Cir. 1983), for the proposition that the court has discretion 12 not to apply the doctrine of collateral estoppel when the parties against whom it is sought to be 13 applied did not have a full and fair opportunity to litigate the issue. The basis for plaintiffs' argument 14 is the assertion that defendants committed perjury, submitted false documents, and concealed material 15 facts and evidence in the dependency proceedings. Plaintiffs' strident advocacy is not supported by 16 their evidentiary showing, however, and plaintiffs' evidentiary showing is insufficient to establish that 17 any perjury was committed on any material fact, that any false documents or false evidence was 18 submitted to the state court, or that any material evidence was withheld from the state court. More 19 importantly, the California Supreme Court has noted that collateral estoppel prohibits the collateral 20 attack on a judgment on grounds that evidence was falsified, destroyed or suppressed. Cedars-Sinai 21 Medical Center v. Superior Court, 18 Cal.4th 1, 10 (1998) (discussing case law forbidding collateral 22 attack on a judgment on the ground that the evidence was falsified, concealed or suppressed), citing 23 Jorgensen v. Jorgensen, 32 Cal.2d 13, 18-19 (1948); Adams v. Martin, 3 Cal.2d 246, 248-49 (1935), 24 25 26 27 28
1

Plaintiffs also argue that the doctrine does not apply because the privity requirement is not met. The court disagrees ­ all of the plaintiffs were parties in the juvenile proceedings. Similarly, plaintiffs suggest that collateral estoppel does not apply because there was no right to a jury trial in the juvenile court proceedings. The lack of a jury right in the prior proceedings does not bar application of collateral estoppel. Roos v. Red, 130 Cal. App. 4th 870, 880-82 (2005).

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1 and Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1175-76 (1983). Plaintiffs' contention that 2 defendants committed perjury, fabricated evidence, or concealed material facts thus provides no basis 3 to preclude application of collateral estoppel here. 4 Plaintiffs place particular emphasis on defendants' failure to disclose the videotape of the

5 initial SART exam of Olivia, which plaintiffs argue rendered the underlying proceedings so unfair as 6 to preclude the doctrine of collateral estoppel from applying. Plaintiffs are mistaken. New evidence 7 does not preclude application of collateral estoppel where the evidence does not establish a 8 previously undiscovered legal theory or a change the parties' legal rights. Khanna v. State Bar of 9 California, 308 Fed. Appx. 176 (9th Cir. 2008), citing Roos v. Red, 130 Cal. App. 4th 870, 888 10 (2005). In Roos, the new evidence was an eye witness to the accident who supported the driver's United States District Court For the Northern District of California 11 version of events, yet the court held that this new evidence did not preclude collateral estoppel 12 because the new evidence went to the weight of the evidence supporting plaintiffs' version of the case 13 and did not establish a previously undiscovered theory nor did it result in a change in the parties' legal 14 rights. Id. The court noted that "'[a]ny exception to collateral estoppel cannot be grounded on an 15 alleged discovery of more persuasive evidence. Otherwise there would be no end to the litigation.'" 16 Id. quoting Evans v. Celotex, 194 Cal. App. 3d 741, 748 (1987); see also Cedars-Sinai Medical 17 Center, 18 Cal.4th at 10 (discussing case law forbidding collateral attack on a judgment on the 18 ground that the evidence was falsified, concealed or suppressed). The same holds true here: plaintiffs 19 argue that the SART videotape bolsters their contention that the person being examined was not 20 Olivia, but plaintiffs asserted this same argument (and others) in the juvenile proceedings. Thus, 21 although the SART videotape was "new evidence" in the sense that it had not been disclosed until 22 after the state proceedings were done, it only goes to the weight of the evidence in the underlying 23 trial. The failure to disclose the SART videotape did not deprive plaintiffs of a full and fair 24 opportunity to litigate the issues concerning Olivia's examination and collateral estoppel precludes 25 them from doing so here. Litigation must come to an end.2 26 27 28
2

The situation here must be distinguished from the cases where both legal and equitable issues are involved. In such cases, the law requires the legal issues to be tried first. Here, however, we are dealing with a fully litigated separate prior action which was tried by the court.

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1

Ultimately, plaintiffs' argument that the state court trial and appellate proceedings did not

2 offer them a full and fair opportunity to litigate these issues is without merit. The state court 3 conducted a lengthy, contested, jurisdictional hearing consuming 19 trial days, involving 27 4 witnesses and 85 trial exhibits. (In re Olivia S. et al., Cal. Ct. App. Case No. H029972 (Sixth 5 Appellate District Sep. 21, 2008), County's Request for Judicial Notice, Exh. F at 3). The California 6 state court has already conducted a trial on the issues plaintiffs seek to raise here, the decision is final 7 and on the merits, has been affirmed on appeal, and review has been denied by the state supreme 8 court. In the end, the trial court found that Olivia had been sexually abused and that she and her 9 siblings were at substantial risk such that removal from their parents' custody was appropriate. The 10 issues underlying that decision cannot be relitigated here United States District Court For the Northern District of California 11 Accordingly, the court finds that collateral estoppel applies to all of the issues actually tried in

12 the state court juvenile dependency proceedings and precludes plaintiffs from relitigating any of those 13 issues here. As a result, even though plaintiffs' civil rights and state tort claims themselves were not 14 litigated in the prior proceeding, such that res judicata does not apply, the claims are nevertheless 15 barred to the extent they depend upon proof of issues that were decided adverse to plaintiffs in that 16 earlier proceeding. Therefore, defendants are entitled to summary judgment on plaintiffs' claims 17 arising from the detention of the children (fifth and sixth claims for relief); the claims arising from 18 the placement of the children in a Spanish-speaking foster home (nineteenth claim for relief); and the 19 constitutional claims relating to the alleged corruption of the court process (twenty-third claim for 20 relief). Defendants are also entitled to summary judgment on all claims based upon allegations of 21 mishandling the biological specimen of Olivia, the validity or accuracy of the chlamydia test results, 22 and the failure to disclose the SART videotape. 23 24 25 26 27 28 2. Motion for Summary Judgment by School District Defendants (Docket 300)

Defendants Real and Harms are the remaining defendants affiliated with the Evergreen School District. They are teachers who were involved in making the report of suspected child abuse to Child Protective Services and who testified during the underlying state court proceedings regarding their observations of Olivia's masturbatory behavior, among other things. The only remaining claim
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1 against them is the twenty-third claim for relief under 42 U.S.C. §1983 for conspiracy to deprive 2 plaintiffs of substantive due process. Defendants move for summary judgment contending that 3 plaintiffs cannot offer evidence of any agreement to support the conspiracy claim, that the claim was 4 fully litigated and rejected in the underlying state court proceedings, and that the defendants have 5 qualified immunity under the Child Abuse Prevention and Treatment Act ("CAPTA"), 42 U.S.C. 6 §5106(g), for having made a mandatory report of suspected sexual abuse of a child. 7 At the hearing, through arguments of plaintiffs' counsel, it became clear that the only claims

8 being pursued against Real and Harms relate to their testimony given during the state court 9 proceedings, which plaintiffs argue is materially different from their deposition testimony in this 10 federal action. Plaintiffs claim this alleged change in testimony supports plaintiffs' conspiracy theory. United States District Court For the Northern District of California 11 Plaintiffs are not asserting a claim for a false report of suspected sexual abuse; their claim is limited 12 to the witnesses' testimony. 13 Each of the bases for Real and Harms' motion is well-founded. Plaintiffs have failed to point

14 to evidence upon which a reasonable jury could find in their favor on the existence of any conspiracy 15 to deprive plaintiffs of their constitutional rights, specifically, plaintiffs have failed to identify any 16 evidence of any agreement by these defendants. See Olsen v. Idaho State Board of Medicine, 363 17 F.3d 916, 929 (9th Cir. 2004) (to even state a claim involving a conspiracy, plaintiff must allege 18 specific facts showing an agreement among defendants to violate plaintiff's civil rights). Moreover, 19 the litigation privilege protects a witness' testimony. Ramalingam v. Thompson, 151 Cal. App. 4th 20 491 (2007). Finally, the substantive issue (suspected sexual abuse of Olivia) was fully litigated and 21 decided in state court and the state court's judgment cannot be collaterally attacked here. Defendants' 22 motion for summary judgment is therefore granted. 23 24 25 26 27 28 3. Motion for Summary Judgment by Social Worker Defendants Ramirez and Tran (Docket 230) a. Ramirez Defendant Ramirez had little involvement in the underlying facts. She was the initial social worker assigned to investigate the complaint of suspected sexual abuse. She went on vacation before any meeting with plaintiffs was held and before the minors were removed from the home. The only
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1 claim asserted against her is the twenty-third claim for conspiracy to deprive plaintiffs of their rights. 2 As was the case with the school district defendants, plaintiffs have failed to come forward with any 3 evidence of an agreement involving defendant Ramirez. Her motion for summary judgment is 4 granted. 5 6 b. Tran

Defendant Tran is the social worker to whom the investigation was assigned after Ramirez

7 went on vacation. Tran allegedly participated in the removal of the two minor siblings, Shafer and 8 Riley, from plaintiffs' home. The remaining claims asserted against Tran are the first claim for relief 9 for violation of plaintiffs' Fourth Amendment rights arising out of the allegedly unlawful entry into 10 plaintiffs' home; the second and eleventh claims for relief relating to the allegedly unlawful seizure of United States District Court For the Northern District of California 11 Shafer and Riley; and the fourth claim for relief under Section 1983 for the violation of plaintiffs' 12 Fourteenth Amendment rights to familial association. 13 14 i. Unlawful entry claim

Defendant Tran's motion for summary judgment includes a request for summary judgment on

15 plaintiffs' constitutional claim for the unlawful entry into their home. Plaintiffs' written opposition 16 does not address this aspect of the motion. Plaintiffs contend that defendant Tran did not raise the 17 issue in his motion. Plaintiffs are mistaken. While most of Tran's brief addresses the claims relating 18 to the removal of the children from the home and taking them into protective custody, Tran does seek 19 summary judgment on the unlawful entry claim, albeit obliquely. Motion at 18:6-8 ("As such, Tran is 20 entitled to qualified immunity on all claims asserted against him in the Fourth Amended Complaint: 21 the first claim pursuant to 42 U.S.C. §1983 for alleged violations of Plaintiffs' Fourth Amendment 22 rights for the alleged unlawful entry into Plaintiffs' home. . . ."). The brief also cites evidence in 23 support of the assertion that Tran did not initially enter the home, but did so later after Officer Hoyt 24 had determined it to be safe. At the hearing, defendant's counsel asserted that Tran did not enter the 25 home until the police officers authorized him to enter and investigate, and, therefore, Tran has 26 qualified immunity because he reasonably relied in good faith on the directions of the police officer. 27 Counsel does not cite any evidence, however, that the officers instructed or directed Tran to enter. 28
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1 Based on the present record and state of the briefing, the court cannot grant summary judgment on the 2 unlawful entry claim. 3 4 ii. Removal of Riley and Shafer

Riley and Shafer were removed from their home without a warrant. Tran seeks summary

5 judgment on the basis that it is "undisputed" that Officer Blank, and not Tran, was the one who 6 decided to take the children into custody. Tran also seeks summary judgment on the basis that he has 7 qualified immunity, arguing that it was reasonable for him to rely on Sergeant Blank's investigation 8 and assessment that the boys should be taken into protective custody. 9 United States District Court For the Northern District of California However, facts are in dispute regarding the decision to take the children into protective

10 custody. The parties' briefing and evidentiary submissions are inadequate to enable the court to grant 11 summary judgment on the issue of qualified immunity. Exigent circumstances may excuse the 12 requirement for obtaining a warrant. In Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th 13 Cir. 2007), the Ninth Circuit noted: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies. Officials violate this right if they remove a child from the home absent information at the time of the seizure that establishes reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. The Fourth Amendment also protects children from removal from their homes absent such a showing. Officials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant. 487 F.3d at 1294 (internal quotations and citations omitted). Moreover, California law authorizes a peace officer to take a child into protective custody without a warrant when the officer has reasonable cause to believe that the minor has an immediate need for medical care, or is in immediate danger of physical or sexual abuse, or the physical environment or the fact that the child is left unattended poses an immediate threat to the child's health or safety. (Cal. Welf. & Inst. Code §305.) Additionally, a peace officer may take a child into protective custody without a warrant if it reasonably appears to the officer that a person is likely to conceal the child, flee the jurisdiction with the child, or by flight or concealment, evade the authority of the court. Cal. Penal Code §279.6(a)(1).

9

1

Defendant Tran, however, has not met his burden of coming forward with evidence to

2 establish that any exigency applied such that summary judgment is appropriate. The motion for 3 summary judgment is denied. 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 e d. 4. Motion for Summary Judgment by Social Worker Defendants Letona, Burgan and Castaldi

Defendant Letona was the social worker assigned after the children were taken into protective custody; Burgan was her supervisor. Defendant Castaldi is another social worker supervisor. These social worker defendants seek summary judgment on the basis that plaintiffs' claims are barred by res judicata and collateral estoppel, their qualified immunity from the federal civil rights claims, and their immunity under California Civil Code Section 47 and Government Code Sections 821.6 and 820.2 from state law claims for the intentional infliction of emotional distress. The following claims remain asserted against defendant Letona: a. b. c. fifth claim for relief pursuant to Section 1983 for the unlawful detainment of the children; sixth claim for relief pursuant to Section 1983 for the alleged conspiracy to detain the children; eighth claim for relief pursuant to Section 1983 and Twelfth Claim for Relief under the California Constitution arising out of subjecting Shafer and Riley to medical procedures, urethral swabs that had been ordered by the court but with the parents present; fifteenth and nineteenth claims for relief for the intentional infliction of emotional distress arising out of the conspiracy to deprive the plaintiffs of their 14th Amendment rights to familial association and the placement of the children in a Spanish speaking foster home, respectively; and, twenty-third claim for relief pursuant to Section 1983 for conspiracy to deprive plaintiffs of their due process rights by manipulating the state court proceedings through misrepresentations, destruction of evidence and interference with compliance with court orders.

23 The sixth, fifteenth, nineteenth and twenty-third claims for relief ­ conspiracy to detain children, 24 infliction of emotional distress, and conspiracy to deprive plaintiffs of due process rights, respectively 25 ­ are also asserted against defendants Castaldi and Burgan. 26 27 a. Collateral Estoppel

As discussed above, many of the issues underlying plaintiffs' claims have already been

28 litigated and collateral estoppel prevents plaintiffs from litigating them again in this action.
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1 Defendants are entitled to summary judgment on plaintiffs' claims arising from the detention of the 2 children (fifth and sixth claims for relief); the claims arising from the placement of the children in a 3 Spanish speaking foster home (nineteenth claim for relief); and the constitutional claims relating to 4 the alleged corruption of the court process (twenty-third claim for relief). 5 6 b. Qualified Immunity

Defendant Letona also seeks summary judgment on the basis of qualified immunity. She first

7 seeks summary judgment on plaintiffs' constitutional claims arising out of her participation in 8 transporting Shafer and Riley to the medical center so that urethral cultures could be obtained. 9 Plaintiffs argue that the parents had a right to be present at this procedure under state law and under 10 the court order authorizing the procedure, and that their right of familial association was violated United States District Court For the Northern District of California 11 when the tests occurred in their absence. Letona's brief asserts that the parents prevented the urethral 12 cultures from being taken in the first procedure, which then required a second attempt. Plaintiffs' 13 opposition does not deny that the parents were present during the first medical procedure and 14 prevented the urethral cultures from being taken during the first procedure,3 notwithstanding the court 15 order directing that urethral cultures be taken. Thus, it appears undisputed that the state court ordered 16 the urethral culture to be taken, that the parents were authorized to be present, that Ritter informed 17 Letona that the parents had interfered with the urethral culture and requested Letona to return the 18 children for a second medical procedure without the parents being present, and that Letona did so. 19 20 21 22 23 24 25 26 27 28
3

The transcript evidence cited by defendants does not directly establish that the parents interfered with the urethral culture. Defendants do, however, cite Letona's subsequent report to the state court: On 9/20/05, this worker received information that when the mother and the father attended the exam of Riley and Shafer on Tuesday, 9/20/05, they informed Mary Ritter that they did not want a urethral culture done on either of the boys. Mary Ritter stated that although the Court order was specific to urethral and anal cultures, she was not going to argue with the parents, and as a consequence she did not perform the urethral culture on either of the boys. Mary Ritter stated that she does believe that it is a good idea to obtain the urethral culture, but her role is not to argue with the parents. Mary Ritter stated that if the children were brought back for the purposes of obtaining the urethral culture she would not like the parents present because they interfered with the drawing of the first cultures.

Defendants' Request for Judicial Notice, Exh. R.
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1

Wallis v. Spencer, 202 F.3d 1126, 1142 (9th Cir. 2000), recognizes that parents have the

2 constitutional right to be present when their children receive medical attention and that children have 3 a corresponding right to have parents present when undergoing medical procedures. In Wallis, the 4 children had been removed by the police based on a report from a mentally ill relative who stated that 5 the children's father was going to sacrifice the son in an upcoming Satanic ritual. The children were 6 also taken to a hospital for an evidentiary physical examination, in part to determine whether the 7 children had been sexually abused. No warrant had been obtained; the parents were not informed and 8 were not given the opportunity to object to the examination or to be present during it. In the resulting 9 civil rights lawsuit, the Ninth Circuit upheld the denial of the officers' motion for summary judgment, 10 affirming that parents and children have a liberty interest in familial association when the children are United States District Court For the Northern District of California 11 receiving medical treatment. The court specifically noted that "parents have a right arising from the 12 liberty interest in family association to be with their children while the are receiving medical attention 13 (or to be in a waiting room or other nearby area if there is a valid reason for excluding them while all 14 or a part of the medical procedure is being conducted)." Id. Thus, the law has been clear, at least 15 since 2000 when the Wallis opinion issued, that parents have a constitutional right to be present when 16 their children are receiving medical attention and children have the corresponding constitutional right 17 to have their parents present at such time. Notably, the state court's order requiring the urethral 18 culture also authorized the parents to be present. Thus, the parents' and children's right to be present 19 during the medical procedure was well-established. 20 Defendant does not address Wallis, and in reply argues that because the state court ordered a

21 urethral culture and the parents' interference prevented the culture from being taken, Letona has 22 qualified immunity for bringing the children back for a second medical examination without allowing 23 the parents to be present. Notably, defendant does not argue that the law was unclear or that it may 24 not have been clear to a social worker in Letona's position under the circumstances ­ where a 25 physician's assistant has requested the return of the children for a second procedure without the 26 parents being present, explaining that the parents had interfered with the court ordered urethral 27 culture on the prior visit ­ that bringing the children in for a second procedure without the parents' 28 presence was unlawful. Similarly, no argument has been made that Letona could not have sought
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1 guidance from the court at that time, including obtaining an order authorizing the procedure outside 2 the parents' presence. In any event, defendant Letona has not established that qualified immunity 3 applies to shield her from liability on plaintiffs' eighth claim for relief arising out of the second 4 medical examination of Shafer and Riley. 5 Summary judgment is appropriate, however, on the twelfth claim for relief. That claim seeks

6 to assert a state constitutional claim for the unlawful search of Shafer and Riley relating to the 7 "warrantless search of their person, and withdrawal of bodily fluids" during the second medical 8 testing on October 6, 2005. The testing, however, was ordered by the state court. The twelfth claim 9 for relief is thus without merit. 10 United States District Court For the Northern District of California Also, the fifteenth claim for relief for the intentional infliction of emotional distress arising

11 out of the alleged conspiracy to deprive the family of rights to familial association, is subject to 12 summary judgment on grounds of immunity. In their moving papers, defendants argue that Civil 13 Code Section 47(b) and Government Code Sections 821.6 and 820.2 provide them with immunity 14 from liability for acts taken in connection with their investigation of child abuse allegations, their 15 removal of the minors and instigation and participation in the dependency proceedings. Plaintiffs 16 rely on Jacqueline T. v. Alameda County Child Protective Services, 155 Cal. App. 4th 456, 466 17 (2007). Plaintiffs argue that the Government Code immunities do not apply to parties who have 18 committed perjury, fabricated evidence, failed to disclose exculpatory evidence and obtained 19 testimony through duress. As noted by defendants in reply, however, plaintiffs have failed to 20 establish that any of these defendants committed perjury, fabricated evidence, withheld exculpatory 21 evidence, or procured testimony through duress. Plaintiffs have failed to meet their burden in 22 opposing defendants' motion for summary judgment. Accordingly, summary judgment in defendants' 23 favor is appropriate. 24 The remaining claim against Letona is the sixth claim for relief for conspiracy to violate the

25 right of familial association by maintaining supervised visitation beyond any reasonably necessary 26 duration without legitimate cause and in furtherance of her intent to prove the commission of sexual 27 abuse by Tracy Watson against Olivia. Plaintiffs' evidence, however, is too slight to allow the claim 28 to proceed to trial. Plaintiffs' evidence consists primarily of an October 2006 memorandum by Napa
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1 County social worker Allen, to whom the case had recently been transferred, reflecting a conversation 2 with another Santa Clara County social worker, Linda Baum, who had been involved in the matter 3 when it was the responsibility of Santa Clara County. Allen contacted Baum seeking an explanation 4 for why the parental visits were still being supervised "given that the parents have been appropriate 5 during all visits and all of the service providers are in support of the minors being returned home." 6 Exh. 1 to Allen Depo., attached as Exh. 1 to Powell Decl. Allen's notes report that Baum explained 7 that "we" believed the father was the one who had abused Olivia and that they were continuing 8 supervised visitation because the perpetrator of the abuse had not been determined. The conversation 9 involved Baum, however, and not Letona. 10 United States District Court For the Northern District of California Plaintiffs make much of Baum's use of the word "we" in describing the belief that Tracy

11 Watson was the one who had sexually abused Olivia, and plaintiffs seize on the "we" to establish a 12 far-reaching conspiracy implicating the other defendants. The evidence, however, is not sufficient to 13 establish a conspiracy. Even if every defendant believed that Tracy Watson was the one who had 14 sexually abused Olivia, that does not establish a conspiracy among them to violate the family's 15 Fourteenth Amendment rights of familial association. In order to oppose summary judgment on a 16 claim upon which plaintiffs will bear the burden of proof at trial, plaintiffs must come forward with 17 evidence sufficient to enable a reasonable trier of fact to find in their favor. Plaintiffs have not done 18 so. The Allen memo, and Allen's deposition testimony, are insufficient in and of themselves to 19 establish a conspiracy among the County defendants, including Letona, to deprive plaintiffs of their 20 rights of familial association. 21 22 23 5. Motion for Summary Judgment by Defendant County of Santa Clara a. Civil Rights Claims

Defendant County of Santa Clara seeks summary judgment on the civil rights claims on the

24 basis that the claims fail to allege a constitutional harm and that there is no evidence that the alleged 25 unconstitutional acts occurred as a result of municipal action. Also, the County seeks summary 26 judgment on the state law claims on the basis that the claims are barred by collateral estoppel and that 27 plaintiffs have failed to allege any statutory basis for municipal liability. Plaintiffs contend that 28 County practices violated their constitutional right to familial association, specifically:
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a. b. c. d. e. f.

that DFCS employees request child-abuse reporters to perform further investigations that are emotionally harmful to children; that social workers retaliate against parents who invoke their right to counsel; that social workers and district attorneys share confidential information in violation of standing orders; that district attorneys abrogate their legal obligations to the children they represent in dependency proceedings; that VMC employees mishandle laboratory testing and reporting in sexual abuse cases; and that VMC employees are not adequately trained or supervised regarding testing and reporting in sexual abuse cases.

The County argues that there is no municipal liability under Section 1983 because there are no underlying constitutional violations, but even if there were underlying constitutional violations, plaintiffs cannot establish that there was a County custom or practice with respect to the asserted wrongful conduct. In their opposition brief, and at hearing on the motion, plaintiffs confirmed that they are not pursuing most of these claims of unlawful practices or procedures. Instead, plaintiffs' constitutional claims against the County are limited to the concealment of the SART video and the alleged systemic destruction of, and failure to preserve, biological samples, specifically, the slide containing the chlamydia test culture. Plaintiffs cannot re-litigate their allegations of mishandling the biological specimen as this issue was tried in the state court proceedings and the court found that the positive chlamydia tests were accurate and that there was no evidence that Olivia's specimens were mishandled or confused with those of another patient. The decision was affirmed on appeal. Further, plaintiffs cannot litigate a constitutional claim arising out of the failure to disclose the SART videotape. Although plaintiffs did not have the opportunity to litigate the specific issue of the undisclosed SART video, the failure to disclose it does not arise to a constitutional violation. The video is only relevant to the issue of whether it depicts Olivia, because if it does not depict Olivia, then the corresponding lab results and positive chlamydia test cannot be attributed to Olivia. Plaintiffs pursued these theories in the juvenile proceedings, however, including offering expert testimony challenging the government's evidence on these issues. The state court did not find the family's witnesses to be credible and accepted the
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1 testimony of the County's witnesses, found that the evidence established that Olivia had chlamydia, a 2 sexually transmitted disease, and that this was compelling evidence supporting her removal from the 3 home. Plaintiffs' present argument is that the SART video would have bolstered the credibility of 4 their witnesses and impeached the credibility of the County's witnesses. As noted above, however, 5 plaintiffs cannot make that attack here ­ they are precluded by collateral estoppel from relitigating the 6 accuracy of the test results and the findings that Olivia had chlamydia and had been subjected to 7 abuse. 8 It is, therefore, appropriate to grant the County's motion for summary judgment on plaintiffs'

9 civil rights claims brought under Section 1983. 10 United States District Court For the Northern District of California 11 b. State Law Claims The County also seeks summary judgment on the state law claims for negligence and for the

12 intentional infliction of emotional distress, arguing that it can only be liable under the doctrine of 13 respondeat superior and there is no evidence that any VMC employee failed to adequately collect, 14 handle or analyze the test that showed Olivia was positive for chlamydia. Moreover, the juvenile 15 court and court of appeals have rejected plaintiffs' argument regarding lab errors. 16 In opposition, plaintiffs argue that the withholding of the SART video and not providing

17 access to the lab specimen until the slide could no longer be read supports their claims for the 18 intentional infliction of emotional distress. Plaintiffs also argue that the County laboratory's 19 negligent practices with regard to handling the slides and in destroying specimens made it impossible 20 for plaintiffs to challenge the claimed results, thus supporting the negligence claim. 21 The court is not persuaded by plaintiffs' arguments, nor is it persuaded that there is any

22 genuine issue of material fact presented. The evidence with regard to the SART video does not rise 23 to the level of outrageous conduct sufficient to support a claim for the intentional infliction of 24 emotional distress. With regard to the negligence claim, plaintiffs litigated this issue in the juvenile 25 dependency proceedings and failed to establish that the lab results were inaccurate or that the County 26 lab workers made any errors with regard to the specimen. Thus, they cannot establish that any 27 County employee's conduct was negligent, and, therefore, the County cannot be held liable under the 28 doctrine of respondeat superior. The County is entitled to summary judgment on the state law claims.
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1 2

6.

Motion for Summary Judgment by Valley Medical Center Defendants

Plaintiffs have asserted claims against several defendants affiliated with Valley Medical

3 Center, specifically, defendants Sparks, Noble, Mailhot, Hamilton and Kahle. Plaintiffs have 4 dropped their claims with regard to Sparks and Noble, but oppose the summary judgment motion 5 brought by Dr. Mailhot, Dr. Hamilton, and laboratory technician Kahle. Additionally, plaintiffs have 6 asserted claims against physician's assistant Ritter and Dr. Kerns, both affiliated with the Center for 7 Child Dependency at Valley Medical Center. 8 9 United States District Court For the Northern District of California a. Mailhot, Hamilton and Kahle

Dr. Mailhot is the Chair of Valley Medical Center's Department of Pathology and Laboratory

10 Medicine. Dr. Hamilton is the Director of the Microbiology Laboratory at VMC. Janet Kahle is a 11 Senior Clinical Laboratory Scientist. Defendants seek summary judgment on all claims asserted 12 against them, specifically the twentieth through twenty-third claims for relief: a Section 1983 claim 13 for violation of plaintiffs' rights of familial association and state claims for intentional infliction of 14 emotional distress, negligence, and conspiracy to violate plaintiffs' civil rights by manipulating the 15 court system through misrepresentations, destruction of evidence, interference in obtaining 16 compliance with court orders and concealment of evidence. Defendants seek summary judgment on 17 the ground that the doctrines of res judicata and collateral estoppel bar plaintiffs' claims. 18 Collateral estoppel precludes plaintiffs from asserting claims as the factual issues were

19 litigated in the state court proceedings. Plaintiffs' theory of liability against these defendants arises 20 from the chlamydia test, the validity and results of which plaintiffs dispute. These issues, however, 21 were vigorously litigated in the state court dependency proceedings resulting in a final decision on 22 the merits which was upheld on appeal. They are not subject to relitigation here. 23 Although plaintiffs stridently argue that the doctrine of collateral estoppel should not apply

24 because the defendants committed perjury, fabricated evidence, misled the state court and 25 manipulated the court proceedings, the evidence does not support the defendants' accusations. 26 Further, as noted above, collateral estoppel prohibits the collateral attack on a judgment on grounds 27 that evidence was falsified, destroyed or suppressed. Cedars-Sinai Medical Center, 18 Cal.4th at 10 28 (discussing case law). Plaintiffs' contention that defendants committed perjury, fabricated evidence,
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1 or concealed material facts thus provide no basis to preclude application of collateral estoppel here. 2 Accordingly, defendants Mailhot, Hamilton and Kahle's motion for summary judgment is granted. 3 4 b. Ritter and Kearns

Mary Ritter is a Physician's Assistant at the Center for Child Protection of Valley Medical

5 Center. Dr. Kerns is the former Medical Director for the Center for Child Protection. Ritter 6 performed a Sexual Assault Response Team (SART) examination of Olivia, during which she 7 obtained specimens. The Microbiology Laboratory processed the specimens and determined that 8 Olivia had chlamydia. Ritter also obtained specimens from Shafer and Riley, pursuant to the state 9 court's order. 10 United States District Court For the Northern District of California The only claim asserted against Kerns is the twentieth claim for relief under Section 1983 for

11 violating plaintiffs' rights of familial association through his involvement in court proceedings, 12 training and supervising employees at the Microbiology Lab and the handling or mishandling of the 13 biological sample from Olivia. The claims against Ritter arise out of the positive chlamydia test and 14 the court-ordered testing of Shafer and Riley. In their consolidated opposition, plaintiffs characterize 15 their claims as premised on "the collection of the biological sample [from Olivia], the handling of the 16 biological sample and slide specimen, and the destruction of the biological sample. It also includes 17 concealing of the SART video and concealing of the information related to the transcription errors by 18 Kahle." Opp. at 25. Plaintiffs' general theory is that the positive chlamydia test was flawed, which 19 resulted in the court removing the children from their parents' custody and, according to plaintiffs, the 20 deprivation of their rights of familial association. 21 As discussed above, however, the claims arising out of the testing of Olivia and the handling

22 of the biological specimen and the nondisclosure of the SART videotape are barred by collateral 23 estoppel. 24 Finally, with regard to the urethral swab testing of Shafer and Riley, plaintiffs do not dispute

25 that the state court ordered the test to be done. Plaintiffs' only argument is that doing the medical 26 testing outside the presence of the parents violated the parents' and the children's constitutional rights 27 of familial association. Defendant Ritter contends that res judicata bars the assertion of this claim 28 against her. Her argument, however, is not convincing. Based on the materials submitted by the
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1 parties, it is not clear that this issue was litigated in state court. The state court was informed that the 2 urethral culture had been obtained without the parents being present, despite the court's order 3 authorizing the parents to be present. Other than that, the court did not want "to belabor the record" 4 with the issue of whether the parents interfered with taking the urethral culture initially, and the 5 issues surrounding the circumstances of the taking of the urethral culture, and constitutional claims 6 arising therefrom, were not decided in the state court proceedings. Thus, to the extent that plaintiffs 7 are asserting a Section 1983 claim against defendant Ritter relating to the violation of their 8 constitutional rights arising out of the taking of the urethral cultures from Shafer and Riley without 9 their parents' being present, summary judgment is denied.4 The court does not reach the question of 10 whether such a claim is viable, but the basis upon which Ritter seeks summary judgment ­ res United States District Court For the Northern District of California 11 judicata ­ does not preclude the claim. 12 Accordingly, the motion for summary judgment by defendants Ritter and Kerns is granted

13 with the exception of plaintiffs' eighth claim for relief under Section 1983 arising out of the taking of 14 the urethral cultures from Shafer and Riley without the parents being present, as to which the motion 15 is denied. 16 17 18 19 20 21 22 23 24 25 26 27 28
4

7.

Motion for Summary Judgment by Defendants City of San Jose, Officers Hoyt and Blank

Officers Hoyt and Blank were involved in taking Shafer and Riley into protective custody and in detaining and questioning Rene Stalker (as to whom the claims have been dropped). Officer Hoyt was also involved in taking Olivia into protective custody. The remaining asserted claims involve federal and state law civil rights claims arising out of the warrantless entry into plaintiffs' home, the warrantless seizure of Shafer and Riley, and the subsequent warrantless seizure of Olivia. The officer defendants seek summary judgment on these claims on grounds of qualified immunity. Additionally, plaintiff Olivia asserts a claim against defendant Hoyt for the intentional infliction of emotional

The corresponding twelfth claim for relief under state law for the unlawful search of Shafer and Riley relating to the gathering of the urethral cultures, however, fails for other reasons. As pleaded, the claim is based upon an seizure that was unlawful because it was a warrantless search of their persons and withdrawal of bodily fluids. The evidence is undisputed, however, that the urethral culture was performed pursuant to a court order.
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1 distress relating to Hoyt's conduct in various interviews of Olivia. Defendant Hoyt seeks summary 2 judgment on this claim on the basis that he is entitled to discretionary immunity and that there is no 3 evidence of outrageous conduct necessary to support a claim for the infliction of emotional distress. 4 Finally, the City of San Jose also seeks summary adjudication that it may not be held liable for any 5 damages incurred after the state court issued its decision in the jurisdictional hearing, finding cause to 6 remove the children from their parents' custody.5 7 8 a. Civil Rights Claims "The doctrine of qualified immunity protects government officials 'from liability for civil

9 damages insofar as their conduct does not violate clearly established statutory or constitutional rights 10 of which a reasonable person would have known.'" Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) United States District Court For the Northern District of California 11 (quoting, Harlow v. Fitzgerald, 457 U.S. 800 (1982)). "Qualified immunity balances two important 12 interests ­ the need to hold public officials accountable when they exercise power irresponsibly and 13 the need to shield officials from harassment, distraction, and liability when they perform their duties 14 reasonably. The protection of qualified immunity applies regardless of whether the government 15 official's error is 'a mistake of law, a mistake of fact, or a mistake based on mixed questions of law 16 and fact.'" Id., citing Groh v. Ramirez, 540 U.S. 551, 567 (2004) (J. Kennedy, dissenting). To 17 determine whether a defendant is entitled to qualified immunity, the court must first consider whether 18 the facts, taken in a light most favorable to plaintiff, show that the officer's conduct violated a 19 constitutional right. Saucier v. Katz, 533 U.S.194, 201 (2001). If no right was violated, then the 20 inquiry ends and the officers have immunity from suit. On the other hand, if the facts construed in a 21 22 23 24 25 26 27 28 The only claim asserted directly against the City of San Jose is the ninth claim for relief relating to the alleged unlawful arrest of Renee Stalker, a claim that plaintiffs said at the hearing that they were not going to pursue. In their opposition papers and at the hearing, however, plaintiffs contended that they are asserting constitutional claims against the City, under Monnell v. Dept. of Social Services, 436 U.S. 658 (1978), for liability for constitutional violations arising from the City's policies or practices. Plaintiffs' opposition points to paragraphs 43 and 44 in the Fourth Amended Complaint, which contain little more than boilerplate recitations of failure to train, and at the hearing, plaintiffs' counsel also pointed to paragraph 195 as supporting the Monnell claim. Paragraph 195 offers little to support such a claim, however. Having reviewed the Fourth Amended Complaint, there is no claim asserted against the City of San Jose seeking to impose liability for constitutional violations under a Monnell theory. While that claim was asserted in the Third Amended Complaint, it was not asserted in the Fourth Amended Complaint.
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1 light most favorable to the plaintiff show that the officer's conduct did violate a constitutional right, 2 then a second step is necessary to determine whether the right the official is alleged to have violated 3 was clearly established such that it would be clear to a reasonable officer that his conduct was 4 unlawful in the situation confronted. Id. at 202. Under Pearson, it is permissible to focus first on the 5 second prong, whether a right was clearly established such that it would be clear to a reasonable 6 officer that his conduct was unlawful. 129 S. Ct. at 820. 7 In this case, there are three alleged constitutional violations: the warrantless entry into the

8 family's home, the warrantless seizures of Shafer and Riley at the home, and the warrantless seizure 9 of Olivia the following day when she was taken into protective custody after being brought to the 10 police department for an interview. United States District Court For the Northern District of California 11 To the extent that defendant's motion seeks summary judgment on the Fourth Amendment

12 claim arising from the warrantless entry into the home, the motion is denied. Defendants largely 13 ignore this claim in their briefs, focusing more on the seizures of the children. In any event, 14 defendants have not met their burden of establishing that the facts are sufficiently undisputed that a 15 reasonable officer in defendants' position would conclude that obtaining a warrant prior to entering 16 the home was unnecessary or excused by exigent circumstances. 17 Similarly, the motion for summary judgment relating to claims arising from the warrantless

18 seizure of Schaefer and Riley is denied. Defendants argue that "[u]nder California law, peace officers 19 have discretion to take children into protective custody without a warrant. Pursuant to Penal Code 20 Section 297.6(a)(1) (sic), a peace officer may take a child into protective custody if the officer 21 reasonably believes that 'a person is likely to conceal the child, flee the jurisdiction with the child, or, 22 by flight or concealment, evade the authority of the court.'" Motion at 12 (emphasis added). 23 Defendants' argument in misleading. While Section 279.6(a)(1) identifies various circumstances 24 under which a law enforcement officer may take a child into protective custody, it says nothing about 25 an officer's authority to do so without a warrant. 26 27 28 Defendants also argue that: the officers have articulated a reasonable fear of imminent danger of future harm to the child/ren to show exigency. Despite the absence of any cases on point, the analysis supports a finding of exigency under the situation that confronted the officers on June
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1 2 3

29th: the potential suspect is with the alleged abuse victim in an unknown location; the suspect has thwarted CPS' efforts to interview O.S. by taking her out of school following CPS's phone call; the suspect refuses to return to the home with the victim; and the officers are left with the difficult decision of whether to leave the two additional minor children in the home or take them into protective custody.

4 Motion at 13-14. The officers, however, had a third option ­ they could have obtained a warrant. 5 Mabe v. San Bernardino County, 237 F.3d 1101 (9th Cir. 2001), cited by defendants, actually

6 undermines their claim to qualified immunity here. The Ninth Circuit in Mabe noted that government 7 officials are required to obtain prior judicial authorization before intruding on a parent's custody of 8 her child unless they possess information at the time of the seizure that establishes reasonable cause 9 to believe that the child is in imminent danger of serious bodily injury and that the scope of the 10 intrusion is reasonably necessary to avert that specific injury. Id. at 1106, quoting Wallis v. Spencer, United States District Court For the Northern District of California 11 202 F.3d 1126, 1138 (9th Cir. 2000). Addressing the second prong of the qualified immunity test, the 12 court explained: 13 14 15 The second prong of the qualified immunity test focuses on whether a reasonable official would have believed her conduct was lawful. Whether Perry could have believed that removing MD under the facts of this case was lawful depends on whether a reasonable social worker could have believed that exigent circumstances existed on August 21, 1995, sufficient to override the warrant requirement.

16 Id. at 1107 (internal citation omitted). The court concluded that summary judgment was not 17 appropriately granted and reversed the district court, concluding that a material issue of fact existed 18 regarding whether there was reasonable cause to believe, on the information in the possession of the 19 official at the time of the minor's removal, that the minor faced an imminent danger of serious bodily 20 injury sufficient to justify a warrantless entry into the home and the seizure of the minor. The same 21 result is appropriate here. The material facts are disputed and the court cannot say as a matter of law 22 that a reasonable officer in defendants' position would have concluded that there was any exigency 23 present sufficient to justify the warrantless removal of Shafer and Riley. 24 Plaintiffs correctly note the applicable standard: to justify the warrantless seizure of Shafer

25 and Riley, who were at home in the care of their grandmother and a babysitter while the parents were 26 elsewhere, the officers must have had reasonable cause to believe that these two children were in 27 imminent danger of serious bodily injury and that taking them into custody was reasonably necessary 28 to avert that injury. Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000). Defendants have not met this
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1 showing. The report of suspected sexual abuse of a child involved only Olivia. Olivia and her father 2 were not home when the officers arrived. The two younger siblings were home, being cared for by 3 their grandmother and a babysitter. When the officers arrived at the home, the officers learned that 4 she was with her father. When the father refused the officers' demands to bring Olivia home, the two 5 younger siblings were taken into protective custody. Based on the present evidentiary record, 6 defendants have not established that a reasonable officer could conclude that Shafer and Riley were 7 in imminent danger of serious bodily injury and that taking them into custody (without a warrant) was 8 reasonably necessary to avert that injury. Defendants' motion for summary judgment on the claims 9 arising from the seizures of Shafer and Riley is denied. 10 United States District Court For the Northern District of California The same evidentiary difficulty arises with regard to plaintiffs' claim relating to the seizure of

11 Olivia. Defendant Hoyt is alleged to have been involved in taking her into protective custody after 12 the first investigatory interview and he seeks summary judgment in part based on qualified immunity. 13 Here, however, defendants also rely on California Welfare and Institutions Code Section 305 for the 14 proposition that an officer may take a child into temporary protective custody without a warrant if the 15 child is in immediate danger of abuse. Section 305 provides that: 16 17 18 19 Any peace officer may, without a warrant, take into temporary custody a minor: (a) When the officer has reasonable cause for believing that the minor is a person described in Section 300, and, in addition, that the minor has an immediate need for medical care, or the minor is in immediate danger of physical or sexual abuse, or the physical environment or the fact that the child si left unattended poses an immediate threat to the child's health or safety.

20 Cal. Welf. & Inst. C. §305(a). 21 Defendants have not established, however, that there was reasonable cause for believing that

22 Olivia was in imminent danger of abuse, under the circumstances. No explanation has been offered 23 as to why a warrant could not have been obtained. To the contrary, defendants suggest in their brief 24 that Hoyt did not believe there was a police reason to detain Olivia but that she could not be returned 25 home because it was against DFCS' policy to return the child to the home until such time as the 26 parents could be interviewed and DFCS had not been able to interview the parents. Motion at 15-16 27 and n.7. 28
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1

The material facts are disputed and defendant has not established that a reasonable officer in

2 Detective Hoyt's position would have concluded that there was any exigency present sufficient to 3 justify taking Olivia into custody without a warrant. 4 5 b. Intentional Infliction of Emotional Distress

Defendant Hoyt also seeks summary judgment on the thirteenth claim for relief, a claim

6 brought by Olivia for the intentional infliction of emotional distress arising from Hoyt's interviews of 7 Olivia. Hoyt asserts two grounds for summary judgment: first, that he has immunity under California 8 Government Code Section 820.2 for his discretionary acts in conducting the interviews; and second, 9 that there are no facts rising to the level of outrageous conduct, which if proven could impose liability 10 for the intentional infliction of emotional distress. United States District Court For the Northern District of California 11 Plaintiffs' opposition focuses on what plaintiffs view as the outrageousness of Hoyt's actions

12 but their argument is not persuasive. The court has considered the videotaped interviews and finds 13 that no reasonable juror could find that anything therein rises to the level of outrageous conduct 14 sufficient to support a claim for the intentional infliction of emotional distress. Plaintiff has also 15 pointed to no evidence that Olivia suffered severe emotional distress as a result of the interviews. 16 Moreover, plaintiffs' opposition does not address defendant's immunity argument, an argument that 17 appears to be well-founded. Public officials have immunity from state law claims asserted against 18 them arising out of their discretionary acts. Cal. Gov't Code §820.2; Alicia T. v. County of Los 19 Angeles, 222 Cal. App. 3d 869 (1990) (social workers have immunity from claims arising from child 20 abuse investigations); Reynolds v. County of San Diego, 858 F. Supp. 1064, 1074 (S.D. Cal. 1994). 21 Defendant Hoyt's decision to interview Olivia ­ and how to conduct the interview ­ were 22 discretionary acts performed within the scope of his public duties, and accordingly, he has immunity 23 from Olivia's claim arising from that decision. There was also no outrageous conduct by Hoyt in the 24 conduct of his interviews. 25 26 c. Limitation of Damages

The City's motion also seeks a determination that any damages arising from the detention