Cabelka v. County of San Diego et al

Filing 111

ORDER: The Motion to Dismiss filed by Defendants Sarah Wilson, Carlos Olmeda, Fatimah Abdullah, and Marilyn Sproat (ECF No. 103 ) is granted in part and denied in part. The Motion to Dismiss filed by Defendant County of San Diego (ECF No. 104 ) is granted in part and denied in part. No later than thirty days. Signed by Judge William Q. Hayes on 4/6/2020. (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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D.C., J.C., and T.C., by and
through their Guardian,
MELANIE CABELKA; and
MELANIE CABELKA,
individually,

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ORDER

Plaintiffs,

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Case No.: 18-cv-13-WQH-MSB

v.
COUNTY OF SAN DIEGO;
SARAH WILSON; CARLOS
OMEDA; FATIMAH
ABDULLAH; MARILYN
SPROAT; and DOES 1-100,

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Defendants.

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HAYES, Judge:
The matters before the Court are the Motions to Dismiss Plaintiffs’ Third Amended
Complaint filed by Defendants Sarah Wilson, Carlos Olmeda1, Fatimah Abdullah, and
Marilyn Sproat (ECF No. 103) and the County of San Diego (ECF No. 104).
I.

PROCEDURAL BACKGROUND
On October 3, 2019, Plaintiffs Melanie Cabelka and her minor children, T.C., D.C.,

and J.C., filed a Third Amended Complaint (“TAC”) against Defendants Sarah Wilson,
Carlos Olmeda, Fatima Abdullah, Marilyn Sproat (collectively, the “Social Worker

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Plaintiffs identified this Defendant as “Carlos Omeda” in the Third Amended Complaint. (See ECF No.
101).
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Defendants”), the County of San Diego (the “County”), and Does 1 through 100.2 (ECF

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No. 101). Plaintiffs allege claims against Defendants under 42 U.S.C. § 1983, and T.C.,

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D.C., and J.C. (collectively, “Minor Plaintiffs”) allege claims against Defendants for

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negligence, negligent and/or intentional misrepresentation, and intentional infliction of

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emotional distress. Plaintiffs seek general damages, special damages, punitive damages,

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interest, attorneys’ fees, and costs.

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On October 17, 2019, Defendants filed Motions to Dismiss the TAC for failure to

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state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal

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Rules of Civil Procedure. (ECF Nos. 103, 104). On November 11, 2019, Plaintiffs filed

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Oppositions to Defendants’ Motions to Dismiss. (ECF Nos. 105, 106). Each Opposition is

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accompanied by a Request for Judicial Notice.3 (ECF Nos. 105-1, 106-1). On November

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18, 2019, Defendants filed Replies in support of their Motions to Dismiss (ECF Nos. 107,

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108) and Oppositions to Plaintiffs’ Requests for Judicial Notice. (ECF Nos. 107-1, 108-1).

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II.

FACTUAL ALLEGATIONS

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Plaintiff Melanie Cabelka adopted Minor Plaintiffs T.C., D.C., and J.C. after their

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successful foster or adoptive placements in Cabelka’s home. T.C. was born in 2003, D.C.

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was born in 2004, and J.C. was born in 2009.

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In March 2015, Defendant Marilyn Sproat, a County placement worker, requested

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to place foster children siblings D.G. and M.C. with Cabelka. D.G. and M.C. had been

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living at a temporary shelter for a prolonged period. Cabelka asked Defendant Sproat why

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D.G. and M.C. were living at the shelter, how many placements D.G. and M.C. had been

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in, and why the prior placements failed. Sproat told Cabelka that the children had been in

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The original sealed Complaint was filed on January 3, 2018. (ECF No. 1). The First Amended Complaint
was filed on February 27, 2018. (ECF No. 15). The Second Amended Complaint was filed on February
28, 2019. (ECF No. 67).

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Judicial notice of the requested documents is unnecessary for this Order. Plaintiffs’ requests for judicial
notice are denied. See Asvesta v. Petroustas, 580 F.3d 1000, 1010 n. 12 (9th Cir. 2009) (denying request
for judicial notice where judicial notice would be “unnecessary”).
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two previous placements. Sproat told Cabelka that that “the prior adoptive placements had

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not ‘failed,’” and the children were at the shelter through “no fault of their own.” (ECF No.

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101 ¶¶ 30, 33). Sproat told Cabelka that “it[’]s an issue with their foster parent. Don’t

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worry, the kids have no behavioral issues – they are very polite, very well mannered, and

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very helpful.” (Id. ¶ 30). Sproat told Cabelka that D.G. and M.C. “have great behaviors.

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They are really, really happy good kids.” (Id.). Sproat told Cabelka that D.G. “had no

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problems other than D.G.’s medical problems, i.e., spina bifida, which was well in hand.”

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(Id. ¶ 33). Before committing to D.G. and M.C.’s placement, Cabelka contacted Defendant

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Fatimah Abdullah, the supervisor of D.G.’s social worker. Defendant Abdulla reiterated

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that D.G. and M.C.’s prior placements had not failed, that D.G. was “a great kid,” and that

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D.G. had no issues other than spina bifida. (Id. ¶ 38).

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Sproat and Abdullah’s representations were false. The County and Sproat considered

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D.G. “to be a difficult child to place in part because of his medical issues and in part

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because of his behavioral and psychological problems which included violent outbursts

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and sexualized behaviors.” (Id. ¶ 31). The County, Sproat, and Abdullah knew, or should

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have known, that both of D.G.’s previous foster parents and D.G.’s school filed reports

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informing the County and County social workers that “D.G. had been repeatedly caught

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smearing poop on the walls; had expressed suicidal thoughts; [and] had, on multiple

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occasions, destroyed property in violent physical outbursts . . . .” (Id. ¶ 35). The County,

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Sproat, and Abdullah knew, or should have known, that “one of the reasons D.G. had been

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removed from his immediately prior adoptive placement with a woman named Tanya, was

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because he had been sexually molesting another male child in Tanya’s care.” (Id. ¶ 36). In

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addition, there were indications in D.G.’s CWS/CMS records that D.G. had been the victim

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of sexual abuse, and both D.G. and M.C. “had witnessed the rape of their older sister,

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Crystal.” (Id. ¶¶ 36, 41). Sproat and Abdullah failed to disclose, and “actively suppressed,”

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this information “out of concern that if they had disclosed all of the relevant information

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to [Cabelka], she would refuse to allow D.G. into her home.” (Id. ¶ 31).

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Cabelka accepted D.G. and M.C. as adoptive placements. From March 2015 through

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January 2017, Cabelka experienced behavioral issues with D.G. D.G had poor hygiene,

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smeared feces on the walls, cut open and destroyed two beds, and downloaded and viewed

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“homosexual child pornography.” (Id. ¶ 58). D.G.’s school informed Cabelka that D.G.

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had suicidal thoughts and that his fecal smearing and hygiene issues were “an ongoing

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problem.” (Id. ¶ 46). After each incident, Cabelka contacted Defendant Abdullah or

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Defendant Carlos Olmeda, D.G.’s social worker, to report the incidents and further inquire

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about D.G.’s history. On many occasions, Cabelka never received a response. When

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Cabelka did receive a response, she was told that D.G. “can’t smell himself” (id. ¶ 44) and

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that “there were no previous incidents of this nature and [ ] D.G. had no known psychiatric

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impairments or behavioral problems.” (Id. ¶ 45). Defendant Olmeda reiterated the “false

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assurances that there were no known behavioral or mental health issues for D.G.” (Id. ¶

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50). When Cabelka reported that D.G. downloaded and viewed child pornography, Olmeda

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assured Cabelka that “a report would be made and investigation would ensue.” (Id. ¶ 58).

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The County never conducted an investigation.

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Cabelka did not have the ability to obtain D.G.’s mental health information because

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she had not received medical cards, waivers, or records from the County. Cabelka

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attempted to discover information about D.G.’s history and behavioral problems from other

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sources. Cabelka contacted D.G.’s Court Appointed Special Advocate who confirmed that

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D.G. had a history of suicidal thoughts, hygiene issues, fecal smearing, and violent

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outbursts. The Court Appointed Special Advocate “disclosed to [Cabelka] that D.G.

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witnessed the rape of his older sister, and that D.G. had sexually acted out with a boy in

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his prior adoptive home – and was removed from that home as a result.” (Id. ¶ 64).

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In June 2016, the County informed Cabelka that an “experienced” social worker,

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Defendant Sarah Wilson, would be taking over D.G.’s case. (Id. ¶ 62). On June 20, 2016,

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Cabelka contacted Defendant Wilson “requesting assistance because [Cabelka] did not feel

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she had the ability to care for D.G. due to his increasing instances of sexual behaviors.”

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(Id. ¶ 63). Wilson “refused to disclose any of the negative information available to her in
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the CWS/CMS records.” (Id. ¶ 63). Wilson failed to provide assistance and told Cabelka

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that “if she had D.G. removed from her home, [Cabelka] would no[t] be permitted to adopt

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[M.C.] with whom [Cabelka] had become bonded.” (Id. ¶ 63). Cabelka continued to report

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D.G.’s behaviors to Wilson, and the County failed to investigate Cabelka’s reports.

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Cabelka told Wilson she “did not feel safe having D.G. in her home and she could not

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commit to adopting him due to his behaviors.” (Id. ¶ 64).
Despite DEFENDANTS’ knowledge of D.G’s propensities for sexual and
physical violence and outbursts, and [Cabelka’s] persistent reporting and
pleas for help, DEFENDANTS, and each of them, failed to take any action to
remove this dangerous child, D.G., from [Cabelka’s] home, or even to warn
[Cabelka] of his known dangerous propensities.

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(Id. ¶ 67).

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On August 8, 2016, D.G. “violently sodomize[d] D.C.” (Id. ¶ 68). Cabelka reported

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the assault to Defendant Wilson. Cabelka told Wilson, “I want D.G. out of here.” (Id. ¶

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70). Wilson told Cabelka that she could not just “dump” D.G. without providing notice to

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the agency, that Cabelka should not go to the police, and that the rape allegations would be

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investigated. (Id.). Wilson told Cabelka that her “adoption of M.C. would be scuttled if

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[Cabelka] did not allow D.G. to remain in her home while the rape allegations were

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investigated and sorted out.” (Id.). Cabelka requested that D.G. “be removed from her

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home as soon as possible.” (Id.). The County failed to investigate the assault or remove

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D.G.

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On September 12, 2016, Cabelka contacted Wilson “begging for respite care for

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D.G. due to her concerns for the safety and well being of her and her other children . . . .

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[Cabelka] complained that she needed help now . . . .” (Id. ¶ 75). Wilson did not remove

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D.G. “On October 20, 2016, D.G. sexually assaulted T.C.” (Id. ¶ 76). Cabelka reported the

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assault, and Defendants “threaten[ed] and coerc[ed] [Cabelka] into keeping D.G. in the

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Cabelka home” and withdrawing her removal requests. (Id. ¶¶ 140, 167). When Cabelka

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again asked Wilson why D.G. had been removed from his previous adoptive placement,

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Wilson told Cabelka that information was “confidential.” (Id. ¶ 80).
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“On January 21, 2017, D.G. sexually assaulted J.C.” (Id. ¶ 90). Cabelka reported the

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assault to the CWS hotline, dropped D.G. off at the “STEPS program,” and reported the

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assault to the police. (Id. ¶ 94). When Cabelka asked the police why they had not

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investigated the prior reports of D.G.’s sexual assaults, the police told Cabelka that “the

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reports that had been provided to the police were so vague and nondescript that they did

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not prompt an investigation.” (Id. ¶ 95). “The bulk of the details [Cabelka] had provided to

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Defendants . . . were not even in the reports, and the report about T.C. was not even listed.”

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(Id.).

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D.G. did not return to the Cabelka home. Cabelka “sought and obtained a stay away

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order from the court to prevent D.G. from being at T.C.’s. D.C.’s, and J.C.’s school as well

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as anywhere near their family home.” (Id. ¶ 100). “In September 2017, the San Diego

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District Attorney filed felony delinquency charges against D.G. for the sexual abuse of

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[Cabelka’s] children.” (Id. ¶ 102). The County still solicits D.G. for placement by

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describing him as “a good kid needing a loving home” and “continues to refrain from

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disclosing D.G.’s known dangerous propensities to his current placements.” (Id. ¶ 103).

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III.

LEGAL STANDARD

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Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure

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to state a claim upon which relief can be granted.” In order to state a claim for relief, a

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pleading “must contain . . . a short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) “is proper only

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where there is no cognizable legal theory or an absence of sufficient facts alleged to support

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a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035,

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1041 (9th Cir. 2010) (quotation omitted).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.” Iqbal, 556 U.S. at 678 (citation omitted). However, “a plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

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Twombly, 550 U.S. at 555 (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept

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as true allegations that are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

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2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual

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content, and reasonable inferences from that content, must be plausibly suggestive of a

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claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009) (quotation omitted).

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IV.

SECTION 1983 CLAIMS

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Plaintiffs allege that Defendants violated 42 U.S.C. § 1983 by depriving Plaintiffs

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of their federal rights guaranteed by the “case plan provisions” and the “records provisions”

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of the Adoption Assistance and Child Welfare Act of 1980 (the “Adoption Act”), 42 U.S.C.

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§§ 671(a)(16), 675(1), and 675(5)(D). Plaintiffs further allege that the Social Worker

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Defendants violated 42 U.S.C. § 1983 by depriving Plaintiffs of their federal rights

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guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States

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Constitution.

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a. Contentions

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The Social Worker Defendants contend that that the Adoption Act does not apply to

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County employees and does not confer enforceable rights on Plaintiffs. The Social Worker

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Defendants contend that they did not act with “deliberate indifference” to a “known and

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obvious danger” in violation of the Fourteenth Amendment. (ECF No. 103-1 at 16). The

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Social Worker Defendants further contend that they are entitled to qualified immunity. The

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County contends that Plaintiffs fail to allege that the Social Worker Defendants acted

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pursuant to a County policy or custom.

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Plaintiffs contend that the Adoption Act applies to the Social Worker Defendants

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and confers enforceable federal rights on Plaintiffs. Plaintiffs contend that the Social
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Worker Defendants are liable under the Fourteenth Amendment state-created danger

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doctrine. Plaintiffs contend that the Social Worker Defendants are not entitled to qualified

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immunity. Plaintiffs contend that they sufficiently allege that the Social Worker

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Defendants acted pursuant to a County policy or custom.

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b. Legal Standard

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42 U.S.C. § 1983 “creates a private right of action against individuals who, acting

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001); see 42 U.S.C. § 1983 (providing a cause of

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action against “[e]very person who, under color of any statute, ordinance, regulation,

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custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to

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the deprivation of any rights, privileges, or immunities secured by the Constitution and

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laws . . . .”). “The purpose of § 1983 is to deter state actors from using the badge of their

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authority to deprive individuals of their federally guaranteed rights and to provide relief to

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victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v.

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Piphus, 435 U.S. 247, 254-57 (1978)). “In order to seek redress through § 1983, however,

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a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”

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Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Golden State Transit Corp. v. Los

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Angeles, 493 U.S. 103, 106 (1989)).

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c. Section 1983 Claims Against the Social Worker Defendants

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Plaintiffs allege pursuant to 42 U.S.C. § 1983 that the Social Worker Defendants

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violated Plaintiffs’ rights under the Adoption Act and the Fourteenth Amendment Due

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Process Clause.

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1.

Application of the Adoption Act to Social Worker Defendants

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The Social Worker Defendants contend that the Adoption Act does not apply to

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municipalities or municipal employees. The Social Worker Defendants contend that even

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if the state delegated its responsibilities under the Adoption Act to the County, “it is only

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the state that can violate any federal right guaranteed by the Act . . . .” (ECF No. 103-1 at

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13).
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Plaintiffs contend that the Adoption Act applies to states and municipalities to whom

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the state has delegated its responsibilities. Plaintiffs assert that the state delegated its

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authority for executing the foster system to the County, so County employees are required

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to comply with the Adoption Act’s mandates.

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Congress enacted the Adoption Act to enable each state to provide foster care and

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adoption assistance and to “promote State flexibility in the development and expansion of

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a coordinated child and family services program that utilizes community-based agencies

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and ensures all children are raised in safe, loving families.” 42 U.S.C. §§ 621, 670. The

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Adoption Act establishes a federal program to reimburse states for expenses incurred in

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administering child welfare, foster care, and adoption services. To obtain federal funds, the

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state must develop a plan for child welfare services, foster care, and adoption assistance

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that meets the Adoption Act’s requirements. 42 U.S.C. §§ 622, 671. In addition to other

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requirements, the state’s plan must provide for the development of a “case plan” for each

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foster child and a “case review system” to ensure that a foster child’s health and education

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records are provided to the foster parent. See 42 U.S.C. §§ 671(a)(16), 675(1), 675(5),

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675a. The state’s plan must mandate that the plan shall be effective “in all political

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subdivisions of the State, and, if administered by them, be mandatory on them.” 42 U.S.C.

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§ 671(a)(3).

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In Henry A. v. Willden, the Court of Appeals for the Ninth Circuit examined the case

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plan and records provisions of the Adoption Act, as well as the Fourteenth Amendment’s

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application to county and state foster services. 678 F.3d 991 (9th Cir. 2012). In Henry A.,

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“thirteen children who are in or have been in the legal custody of the State of Nevada and/or

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Clark County and placed in foster care” filed suit against the Director of the Nevada

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Department of Health and Human Services, the Administrator of the Nevada Division of

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Child and Family Services, the Clark County Manager, the Director of Clark County

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Department of Family Services, and Clark County. 2:10-cv-00528-RCJ-PAL, 2010 U.S.

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Dist. LEXIS 115006, at *3, *8 (D. Nev. Oct. 26, 2010), reversed in part by 678 F.3d 991

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(9th Cir. 2012). The plaintiffs alleged that the State of Nevada transferred its
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responsibilities for providing foster care services to Clark County but retained supervision

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and oversight of the foster care system. The plaintiffs alleged that as a result of Clark

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County’s failed foster care system, the plaintiffs were subject to “severe physical abuse,

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lack of necessary medical treatment, and multiple placement disruptions.” Id. at *4. The

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plaintiffs brought claims against the county and state defendants for violating § 1983 by

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depriving plaintiffs of their federal rights under the Adoption Act and their substantive due

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process rights under the Fourteenth Amendment. Id. at *8. The defendants moved to

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dismiss the plaintiffs’ claims on the grounds that the defendants were entitled to qualified

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immunity. Id. at *9, *16. The United States District Court for the District of Nevada granted

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the defendants’ motion to dismiss and held that the defendants were entitled to qualified

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immunity. Id. at *60-61.

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The plaintiffs appealed the district court’s decision to the Court of Appeals for the

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Ninth Circuit. Henry A., 678 F.3d 991. The court of appeals reversed the district court’s

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dismissal of the plaintiffs’ § 1983 claims. Id. at 1008-09. The court of appeals held that the

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district court erred in finding that the plaintiffs failed to state a claim under the state-created

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danger doctrine. Id. at 1003. The court of appeals further held that the district court erred

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in dismissing the plaintiffs’ claims under the case plan and records provisions of the

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Adoption Act on the basis that the provisions are not privately enforceable. Id. at 1006.

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In this case, Plaintiffs allege that “[t]he State of California expressly delegated its

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foster care licensing responsibilities and duties to the County of San Diego . . . .” (ECF No.

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101 ¶ 109). Plaintiffs allege that the Social Worker Defendants are employees of the

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County of San Diego Health and Human Services Agency, “a local public entity and

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operating subdivision” of the County. (Id. ¶ 8). Plaintiffs allege that the Social Worker

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Defendants violated the case plan and records provisions of the Adoption Act. The text of

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the Adoption Act requires that a state’s plan must mandate that the plan shall be effective

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“in all political subdivisions of the State, and, if administered by them, be mandatory on

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them.” 42 U.S.C. § 671(a)(3). In Henry A., the Court of Appeals for the Ninth Circuit

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applied the case plan and records provisions of the Adoption Act to the Clark County
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Manager, the Director of Clark County Department of Family Services, and Clark County.

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The text of the Adoption Act and Ninth Circuit precedent dictate that the case plan and

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records provisions of the Adoption Act are enforceable against counties to whom the state

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has delegated its responsibilities under the Adoption Act and county employees. See Laurie

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Q. v. Contra Costa Cty., 304 F. Supp. 2d 1185, 1190 (N.D. Cal. 2004) (“Under section

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671(a)(16) a state or county claiming eligibility for benefits under the [Adoption Act] must

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institute a plan that provides for development of a case plan . . . .” (emphasis added)

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(quotation omitted)). The Court concludes that Plaintiffs have stated a “cognizable legal

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theory” at this stage in the proceedings that the Adoption Act applies to the Social Worker

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Defendants. Shroyer, 622 F.3d at 1041.
2.

Plaintiffs’ Federal Rights Under the Adoption Act

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The Social Worker Defendants contend that the Adoption Act does not create a

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federal right enforceable by Plaintiffs in a § 1983 action because Plaintiffs are not the

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intended beneficiaries of the Adoption Act. The Social Worker Defendants contend that

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the Adoption Act was intended to benefit foster children and their parents; it was not

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intended to benefit foster parents or other children living with a foster child.

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Plaintiffs contend that they can enforce the case plan and records provisions of the

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Adoption Act under § 1983. Plaintiffs contend that the case plan and records provisions

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directly benefit foster parents like Cabelka. Plaintiffs contend that the Adoption Act creates

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a standard of conduct to “protect and promote the welfare of all children,” including the

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Minor Plaintiffs in this case. (ECF No. 105 at 19).

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“In order to seek redress through § 1983 [ ], a plaintiff must assert the violation of a

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federal right, not merely a violation of federal law.” Blessing, 520 U.S. at 340 (citing

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Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989)). The court applies a

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three-step test to determine whether a federal statute creates an individual right that is

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enforceable by the plaintiffs in a § 1983 action. Id. at 340-41.

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The Blessing test requires: 1) that Congress intended the statutory provision
to benefit the plaintiff; 2) that the asserted right is not so “vague and
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amorphous” that its enforcement would strain judicial competence; and 3) that
the provision couch the asserted right in mandatory rather than precatory
terms.

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Watson v. Weeks, 436 F.3d 1152, 1158 (9th Cir. 2006) (quoting and citing Blessing, 520
U.S. at 340-341). “If a statutory provision satisfies the Blessing test, it is presumptively
enforceable through § 1983.” Henry A., 678 F.3d at 1005 (citing Watson, 436 F.3d at 1158).
This presumption is rebutted “if Congress expressly or impliedly foreclosed enforcement”
by creating “‘a comprehensive enforcement scheme incompatible with individual
enforcement.’” Watson, 436 F.3d at 1158-59 (quoting Blessing, 520 U.S. at 341).
In Henry A., the district court determined that the state and county defendants were
entitled to qualified immunity on the plaintiffs’ § 1983 claim based on violations of the
case plan and records provisions of the Adoption Act. 2010 U.S. Dist. LEXIS 115006, at
*28. The district court explained that “these provisions do not contain rights-creating
language,” so the plaintiffs failed to show that the defendants violated any clearly
established federal right. Id. at *28-29. The Court of Appeals for the Ninth Circuit reversed
the district court’s decision. Henry A., 678 F.3d at 1006. The court of appeals stated:
The district court concluded that [the case plan and records provisions] do not
contain sufficient “rights-creating language” to satisfy the first prong of the
Blessing test. We disagree and join the majority of federal courts in holding
that the case plan [and records] provisions are enforceable through § 1983.
Id. at 1006, 1009.

21

The court of appeals applied the Blessing test and determined that the case plan and

22

records provisions of the Adoption Act conferred individual rights enforceable under §

23

1983 on the foster children plaintiffs. Id. at 1006, 1008. The court of appeals first examined

24

the case plan provisions, §§ 671(a)(16) and 675(1). See id. at 1007 fn. 8 (“[W]e must

25

examine each provision separately rather than the statute as a whole.” (citing ASW v.

26

Oregon, 424 F.3d 970, 977 (9th Cir. 2005)). The case plan provision of § 671(a)(16)

27

provides:

28
12
18-cv-13-WQH-MSB

1

(a) Requisite features of a State plan. In order for a state to be eligible for
payments under this part, it shall have a plan approved by the Secretary
which—
...
(16) provides for the development of a case plan (as defined in section 475(1)
[42 U.S.C. § 675(1)] and in accordance with the requirements of section 475A
[42 U.S.C. § 675a]) for each child receiving foster care maintenance payments
under the State plan . . . [.]

2
3
4
5
6
7

Section 675(1) “provides a detailed definition of what a case plan must include, such as the

8

child’s health and educational records, a description of the child’s permanency plan, and a

9

plan for ensuring the child’s stability.” Henry A., 678 F.3d at 1006 (citing 42 U.S.C. §

10

675(1)); see 42 U.S.C. §§ 675(1)(C)(iii), (v), (vii). Section 675(1) requires, in relevant part,

11

that the case plan include “[a] plan for ensuring that the child receives safe and proper care

12

and that services are provided to the parents, child, and foster parents . . . .” 42 U.S.C. §

13

675(1)(B).4

14

The court of appeals explained that the first prong of the Blessing test “requires

15

‘rights-creating language,’ meaning that the text of the statute ‘must be phrased in terms of

16

the persons benefitted.’” Henry A., 678 F.3d at 1005 (quoting Gonzaga Univ. v. Doe, 536

17

U.S. 273, 284, 284 n. 3 (2002)). The court of appeals determined that the case plan

18

provisions “unambiguously require[ ] the State to provide for the development of a case

19

plan ‘for each child,’” evidencing Congress’s intent that the case plan provisions benefit

20

foster children. Id. at 1007. The court of appeals held that “the first Blessing factor weighs

21

in favor of an enforceable right” by the foster children plaintiffs. Id. at 1007. The court of

22

appeals further determined that the case plan provisions satisfy the second and third

23

Blessing factors because there is “no ambiguity as to what [the state is] required to do[.]”

24

Id. (alterations in original) (quotation omitted). The court of appeals concluded that there

25
26

The court noted that, “as we recognized in ASW, Congress has directed that statutory provisions within
the [Adoption Act] should not ‘be deemed unenforceable because of its inclusion in a section . . . requiring
a State plan or specifying the required contents of a State plan.’” Henry A., 678 F.3d at 1007 (quoting
ASW, 424 F.3d at 977 n. 11).
4

27
28

13
18-cv-13-WQH-MSB

1

is no indication Congress foreclosed enforcement of the case plan provisions under § 1983,

2

so “the case plan provisions of the [Adoption Act] . . . are enforceable through § 1983.” Id.

3

at 1008.

4

The court of appeals then applied the Blessing test to the records provisions, §§

5

671(a)(16), 675(1), and 675(5)(D). The records provision of § 671(a)(16) requires the state

6

to develop a plan that “provides for a case review system which meets the requirements

7

described in section 475(5) [42 U.S.C. § 675(5)] and 475A . . . .” Section 675(5)(D)

8

requires that the case review system must ensure that

9
10
11
12

a child’s health and education record . . . is reviewed and updated, and a copy
of the record is supplied to the foster parent or foster care provider with whom
the child is placed, at the time of the placement of each child in foster care . .
..
Section 675(1) details the information that must be included in the health and education

13

record, including “the child’s school record,” “the child’s known medical problems,” and

14

“any other relevant health and education information concerning the child determined to

15

be appropriate by the State agency.” 42 U.S.C. § 675(1)(C)(iii), (v), (vii).

16
17
18
19
20
21
22

The court of appeals determined:
We are persuaded by the statute’s repeated focus on the individuals benefitted
by §§ 671(a)(16) and 675(5)(D): A case review system must be provided with
respect to each child; the child’s health and education record must be provided
to the foster parent; and this must happen at the time the child is placed in
foster care . . . . [T]he “focus on individual foster children,” and the language
“designating foster parents” to receive a benefit on their foster child’s behalf,
“together unambiguously reflect Congress’s intent” that the records
provisions benefit individual foster children and parents.

23

Henry A., 678 F.3d at 1008-09 (quoting Cal. State Foster Parent Ass’n v. Wagner, 624

24

F.3d 974, 981 (9th Cir. 2010)). The court of appeals concluded that “the records provisions

25

can be enforced through § 1989.” Id. at 1009.

26
27
28
14
18-cv-13-WQH-MSB

1

In this case, Plaintiffs seeking to enforce the Adoption Act under § 1983 are D.G.’s

2

former foster parent and his former foster siblings5. The text of the case plan and records

3

provisions mandates that the state’s plan ensure that services and records are supplied to

4

foster parents. Section 675(1)(B) requires that a case plan include “[a] plan for assuring . .

5

. that services are provided to the parents, child, and foster parents . . . .” Section 675(5)(D)

6

requires a case review system to ensure that a child’s health and education record “is

7

supplied to the foster parent.” The court of appeals explained in Henry A. that Congress

8

intended the records provisions to benefit foster parents. See 678 F.3d at 1009 (“[T]he

9

‘focus on individual foster children,’ and the language ‘designating foster parents’ to

10

receive a benefit on their foster child’s behalf, ‘together unambiguously reflect Congress’s

11

intent’ that the records provisions benefit individual foster children and their parents.”

12

(quotation omitted)); see also Wagner, 624 F.3d at 979-80 (holding that 42 U.S.C. §§

13

672(a) and 675(4)(A), which establish requirements for foster care maintenance payments,

14

create rights enforceable by foster parents, even though neither section explicitly references

15

foster parents). The text of the case plan and records provisions and Ninth Circuit precedent

16

indicate that Congress intended §§ 671(a)(16), 675(1), and 675(5)(D) to be enforceable

17

under § 1983 by foster parents like Cabelka. There is no ambiguity in what the state and

18

County is required to do or provide, and there is no other administrative remedy available

19

to Cabelka. However, there is no indication in the case law or the text of the case plan and

20

records provisions that Congress intended the Adoption Act to benefit foster siblings.

21

The Court concludes that the Minor Plaintiffs have failed to plead a violation of their

22

federal rights under the Adoption Act enforceable under § 1983. The Court concludes that

23

foster parent Cabelka has sufficiently pled a claim under § 1983 at this stage in the

24

proceedings for violations of §§ 671(a)(16), 675(1), and 675(5)(D) of the Adoption Act.

25

///

26
27
The Court uses the term “foster siblings” to refer to children living in the same house as the foster child
who are not presently in the foster system.
5

28

15
18-cv-13-WQH-MSB

1

3.

Qualified Immunity on Cabelka’s Adoption Act Claim6

2

The Social Worker Defendants contend that there was no existing precedent that

3

would have put them on notice that failing to comply with the Adoption Act would violate

4

the federal rights of D.G.’s foster parent. The Social Worker Defendants contend that

5

Henry A. would not put the Social Worker Defendants on notice that their alleged actions

6

would violate a foster parent’s federal rights. The Social Worker Defendants contend that

7

“the only other Ninth Circuit cases that address federally enforceable rights under the

8

Adoption Act analyzed different provisions of the Act” than Plaintiffs allege violations the

9

Social Worker Defendants violated. (ECF No. 103 at 21).

10

Plaintiffs contend that the Adoption Act has required social workers to develop a

11

case plan and provide foster parents with the prior history of foster children since 1980.

12

Plaintiffs contend that by placing D.G., “a known sexual predator, in a home with children

13

aged 13, 12, and 6,” and “repeatedly conceal[ing] D.G.’s clear and obvious dangerous

14

history,” the Social Worker Defendants violated these clearly established federal rights.

15

(ECF No. 105 at 24-25).

16

The doctrine of qualified immunity “protects government officials ‘from liability for

17

civil damages insofar as their conduct does not violate clearly established statutory or

18

constitutional rights of which a reasonable person would have known.’” Pearson v.

19

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

20

(1982)). If “a complaint sufficiently alleges that a government official violated a federal

21

constitutional or statutory right, that official is entitled to qualified immunity from money

22

damages if the right was not ‘clearly established’ at the time of the alleged conduct.” Henry

23

A., 678 F.3d at 999 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). “A Government

24

official’s conduct violates clearly established law when, at the time of the challenged

25
26
27
28

6

The Court has concluded that the Minor Plaintiffs fail to state claims under § 1983 for violations of the
Adoption Act. Accordingly, the Court does not address whether the Social Worker Defendants are entitled
to qualified immunity on the Minor Plaintiffs’ Adoption Act claims.
16
18-cv-13-WQH-MSB

1

conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official

2

would [have understood] that what he is doing violates that right.’” Ashcroft, 563 U.S. at

3

741 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987));

4

see Henry A., 678 F.3d at 1000 (explaining that the court must determine “the contours” of

5

the plaintiff’s “clearly established rights at the time of the challenged conduct” and then

6

“examine whether a reasonable official would have understood that the specific conduct

7

alleged by Plaintiffs violated those rights”). “‘This is not to say that an official action is

8

protected by qualified immunity unless the very action in question has previously been held

9

unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be

10

apparent.’” Anderson, 483 U.S. at 640 (internal citation omitted). “We do not require a case

11

directly on point, but existing precedent must have placed the statutory or constitutional

12

question beyond debate.” Ashcroft, 563 U.S. at 741.

13

The Court has determined that Cabelka has sufficiently alleged that the Social

14

Worker Defendants violated Cabelka’s federal rights under the Adoption Act at this stage

15

in the proceedings. The Adoption Act requires that a state’s plan must mandate that the

16

plan shall be effective “in all political subdivisions of the State, and, if administered by

17

them, be mandatory on them.” 42 U.S.C. § 671(a)(3).The text of the case plan and records

18

provisions require the state to create a case plan that includes “[a] plan for assuring . . . that

19

services are provided to the . . . foster parents . . . ,” 42 U.S.C. § 675(1)(B), and a case

20

review system to ensure that a child’s health and education record “is supplied to the foster

21

parent.” 42 U.S.C. § 675(5)(D). In Henry A., the court of appeals applied the case plan and

22

records provisions to Clark County and Clark County officials. The court of appeals further

23

held that foster children have an individual right to seek enforcement of the case plan and

24

records provisions, explaining that Adoption Act was intended to benefit both foster

25

children and foster parents. Id. at 1009; see Wagner, 624 F.3d at 982 (holding that “Foster

26

Parents have access to a remedy under § 1983 to enforce their federal right” under §§ 672(a)

27

and 675(4)(A) of the Adoption Act).

28
17
18-cv-13-WQH-MSB

1

At the time of the Social Worker Defendants’ alleged conduct, a reasonable County

2

social worker was on notice that he or she was required under the Adoption Act to provide

3

a foster parent with a foster child’s medical and education records and to create an adequate

4

case plan to assure that services are provided to the foster parent. Based on the allegations

5

at this stage in the proceedings, the Court concludes that the Social Worker Defendants are

6

not entitled to qualified immunity for the alleged violations of Cabelka’s federal rights

7

under the Adoption Act.

8

4.

Fourteenth Amendment State-Created Danger

9

The Social Worker Defendants contend that they have no duty under the Fourteenth

10

Amendment to protect individuals from private violence. The Social Worker Defendants

11

contend that they did not place Plaintiffs in danger they otherwise would not have faced.

12

The Social Worker Defendants contend that it was Cabelka’s decision to allow D.G. to

13

remain in the Cabelka home so Cabelka could adopt D.G.’s sister.

14

Plaintiffs contend that the state-created danger doctrine applies because the Social

15

Worker Defendants created or exposed Plaintiffs to a risk of harm, and the danger caused

16

Plaintiffs injury. Plaintiffs contend that the Social Worker Defendants were aware of

17

D.G.’s dangerous propensities and refused to warn Plaintiffs. Plaintiffs contend that the

18

Social Worker Defendants refused to act when Cabelka reported D.G.’s sexual assaults.

19

The Fourteenth Amendment typically “does not impose a duty on government

20

officers to protect individuals from third parties.” Morgan v. Gonzales, 495 F.3d 1084,

21

1093 (9th Cir. 2007). There are two exceptions to this general rule: the “special

22

relationship” exception and the “state-created danger exception.” Patel v. Kent Sch. Dist.,

23

648 F.3d 965, 971 (9th Cir. 2011). The special relationship exception applies when the

24

state “takes a person into its custody and holds him there against his will.” DeShaney v.

25

Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989).

26

The state-created danger exception applies “when the state affirmatively places the

27

plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’”

28

Patel, 648 F.3d at 971-72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). To
18
18-cv-13-WQH-MSB

1

state a claim under the state-created danger exception, the plaintiff must allege that “(1) [

2

] affirmative actions of the official placed the individual in danger he otherwise would not

3

have faced; (2) [ ] the danger was known or obvious; and (3) [ ] the officer acted with

4

deliberate indifference to that danger.” Henry A., 678 F.3d at 1002 (citing Kennedy v. City

5

of Ridgefield, 439 F.3d 1055, 1062-64 (9th Cir. 2006)). A state actor acts with deliberate

6

indifference where there was an “objectively substantial risk of harm,” the official was

7

“subjectively aware of facts from which an inference could be drawn that a substantial risk

8

of harm existed,” and “either the official actually drew that inference or [ ] a reasonable

9

official would have been compelled to draw that inference.” Tamas, 630 F.3d at 845.

10

In Henry A., the foster children plaintiffs alleged that the state and county defendants

11

“remov[ed] Plaintiffs from their homes and plac[ed] them in the care of foster parents . . .

12

who were unfit to care for them and posed an imminent risk of harm to Plaintiffs’ safety.”

13

678 F.3d at 1002. The plaintiffs alleged that the defendants placed one child in a foster

14

home “that had a known history of neglect,” allowed another foster child “to have

15

unsupervised visits with his grandparents despite having knowledge that they had abused

16

him,” and placed a third foster child “in an out-of-state facility that had a known history of

17

chronic neglect and abuse.” Id. The district court determined that the plaintiffs failed to

18

state a claim under the state-created danger doctrine. Id. The district court cited the

19

dissenting opinion in Kennedy and determined that “the complaint did not sufficiently

20

allege that Defendants did more than simply expose the plaintiff to a danger that already

21

existed because Defendants merely place[d] foster children into an already broken system.”

22

Id. (quotations omitted).

23

The court of appeals reversed the decision of the district court, finding that “[t]he

24

district court’s reasoning was erroneous.” Id. The court of appeals explained that the state-

25

created danger doctrine “only applies in situations where the plaintiff was directly harmed

26

by a third party — a danger that, in every case, could be said to have ‘already existed.’”

27

Id. The court of appeals explained:

28

[T]he point of the state-created danger doctrine is that the affirmative actions
19
18-cv-13-WQH-MSB

1
2
3
4
5
6
7

of a state official “create[d] or expose[d] an individual to a danger which he
or she would not have otherwise faced.” Kennedy, 439 F.3d at 1060 (opinion
of the court) (emphasis added). This is precisely what Plaintiffs have alleged
here. They allege that Defendants knew of the danger of abuse and neglect
that Plaintiffs faced in certain foster homes and acted with deliberate
indifference by exposing Plaintiffs to that danger anyway. This is sufficient to
state a claim under the controlling opinion in Kennedy. The fact that the
dangerous foster homes “already existed” is irrelevant.
Id. at 1002-03 (second and third alterations in original).

8

In this case, Plaintiffs allege that the Social Worker Defendants knew of the danger

9

of sexual abuse that the Minor Plaintiffs faced and acted with deliberate indifference by

10

exposing them to that danger anyway. Plaintiffs allege that D.G.’s CWS/CMS records and

11

juvenile case file indicate that D.G. had been the victim of sexual abuse and that D.G. had

12

“known behavioral issues including . . . sexually aggressive and deviant behaviors.” (ECF

13

No. 101 ¶ 45). Plaintiffs allege that the Social Worker Defendants had access to D.G.’s

14

CWS/CMS records and juvenile case file and were aware of D.G.’s history of violent and

15

sexually deviant acts. Plaintiffs allege that the Social Worker Defendants knew that D.G.

16

had been removed from his prior placement “because he had been sexually molesting

17

another male child” in his foster parent’s care. (Id. ¶ 36). Plaintiffs allege that the Social

18

Worker Defendants knew that Cabelka had three young male children. Plaintiffs allege that

19

the Social Worker Defendants “lied, and falsely stated that D.G. had no behavioral,

20

medical, and/or psychological issues, . . . no dangerous propensities, no sexually deviant

21

behaviors, no violent outbursts, and that D.G. was in foster care through no fault of his

22

own.” (Id. ¶ 134). Plaintiffs allege that the Social Worker Defendants “suppressed” the fact

23

that “D.G. sexually molested another child in his previous foster home.” (Id. ¶ 133).

24

Plaintiffs allege that Cabelka asked Defendants Sproat and Abdullah questions about

25

D.G.’s history, including why D.G.’s prior adoptive placements failed and why D.G. was

26

at the temporary shelter, “before [Cabelka] committed to [D.G.’s] placement in her home.”

27

(Id. ¶ 38). Plaintiffs allege that when Cabelka reported D.G.’s behaviors, the Social Worker

28

Defendants told Cabelka that all of D.G.’s behaviors were new and that none of D.G.’s
20
18-cv-13-WQH-MSB

1

concerning behaviors had been noted in D.G.’s file. Plaintiffs allege that the Social Worker

2

Defendants lied about, and suppressed, D.G.’s history in order to induce Cabelka to accept

3

D.G. as an adoptive placement and to allow him to remain in her home. Plaintiffs allege

4

that the Social Worker Defendants assured Cabelka that her reports of sexual assault would

5

be investigated and that the County would remove D.G. from the Cabelka home. Plaintiffs

6

allege that the Social Worker Defendants failed to investigate Cabelka’s reports and failed

7

to remove D.G. Plaintiffs allege that the Minor Plaintiffs were exposed to sexual abuse as

8

a result of the Social Worker Defendants’ conduct.

9

The facts alleged support the inference that Cabelka would not have accepted D.G.

10

into her home if Defendants Sproat or Abdullah had informed her of D.G.’s past sexual

11

misconduct. The facts alleged support the inference that the Social Worker Defendants’

12

alleged statements induced Cabelka to allow D.G. to remain in her home and that that the

13

affirmative actions of the Social Worker Defendants exposed the Minor Plaintiffs to a

14

danger of sexual assault that they would not otherwise have faced. The facts alleged support

15

a reasonable inference that D.G. posed an “objectively substantial risk of harm” to the

16

Minor Plaintiffs, that the Social Worker Defendants were “subjectively aware of facts from

17

which an inference could be drawn that a substantial risk of serious harm existed,” and that

18

the Social Worker Defendants “actually drew that inference.” Tamas, 630 F.3d at 845.

19

However, the facts alleged do not support an inference that the affirmative actions of the

20

Social Worker Defendants placed foster parent Cabelka in any danger that she otherwise

21

would not have faced.

22

The Court concludes that Cabelka fails to state a claim under the Fourteenth

23

Amendment Due Process Clause. The Court concludes that the Minor Plaintiffs have stated

24

a cause of action under § 1983 at this stage in the proceedings for violations of their

25

Fourteenth Amendment rights to be free from state-created danger.

26
27
28
21
18-cv-13-WQH-MSB

1

5.

2

Qualified Immunity on Minor Plaintiffs’ Fourteenth Amendment
Claims7

3

The Social Worker Defendants contend that “no binding precedent has held that the

4

[state-created danger] doctrine applies to placing a foster child in a home where there is a

5

known danger of abuse to a third party at the hands of the foster child. (ECF No. 103-1 at

6

22). The Social Worker Defendants contend that “there was no case law putting Social

7

Worker Defendants on ‘clear notice’ that placing a foster child with a history of behavioral

8

issues and sexual abuse into a home with a third party might violate the third party’s

9

substantive due process rights.” (Id.).

10

Plaintiffs contend that “[i]t is clearly established that a government official violates

11

substantive due process rights by creating or exposing an individual to a risk of harm – that

12

they otherwise would not have faced.” (ECF No. 105 at 23). Plaintiffs contend that the

13

Social Worker Defendants’ “conduct in unleashing a known sexual predator on an

14

unsuspecting family without any warning meets this standard.” (Id.).

15

The Court has determined that the Minor Plaintiffs have sufficiently alleged that the

16

Social Worker Defendants violated the Minor Plaintiffs’ substantive due process rights at

17

this stage in the proceedings. “It is beyond dispute” that at the time of the Social Worker

18

Defendants’ alleged conduct, “state officials could be held liable where they affirmatively

19

and with deliberate indifference placed an individual in danger she would not otherwise

20

have faced.” Kennedy, 439 F.3d at 1066; see Mayshack v. Gonzales, 437 F. App’x 615,

21

620 (9th Cir. 2011) (finding that it was “clearly established that when government officials

22

affirmatively and with deliberate indifference place an individual in danger, those officials

23

may be held liable” (citing Kennedy, 439 F.3d at 1066)).

24
25
26
27
28

7

The Court has concluded that Cabelka fails to state a claim under § 1983 for violation of the Due Process
Clause. Accordingly, the Court does not address whether the Social Worker Defendants are entitled to
qualified immunity on Cabelka’s Fourteenth Amendment claim.
22
18-cv-13-WQH-MSB

1

In Henry A., the court of appeals held that foster children stated a due process claim

2

under the state-created danger doctrine by alleging that social workers knew of the danger

3

of abuse and neglect that the children faced in certain foster homes and acted with

4

deliberate indifference by exposing the foster children to that danger. 678 F.3d at 1003. In

5

Tamas, the Court of Appeals held that a foster child stated a claim under the state-created

6

danger doctrine because “[t]he state’s approval of [the foster child’s] foster care and

7

adoption by [the foster parent] created a danger of molestation that [the foster child] would

8

not have faced had the state adequately protected her as a result of the referrals.” 630 F.3d

9

at 844. Henry A. and Tamas are not “meaningfully distinguishable” from this case.

10

Kennedy, 439 F.3d at 1066. In Henry A., Tamas, and the present case, the social workers

11

exposed the plaintiffs to a danger of sexual abuse they otherwise would not have faced. See

12

Paluk v. Savage, 836 F.3d 1117, 1126 (9th Cir. 2016) (finding that another case was

13

“factually similar” because in both cases, “the danger was a physical danger in the

14

workplace”); see also Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37

15

(9th Cir. 2003) (“In order to find that the law was clearly established . . . we need not find

16

a prior case with identical, or even ‘materially similar,’ facts. Our task is to determine

17

whether the preexisting law provided the defendants with ‘fair warning’ that their conduct

18

was unlawful.” (internal citation omitted) (quoting Hope v. Pelzer, 536 U.S. 730 (2002))).

19

Based on the body of state-created danger caselaw, the Social Worker Defendants were on

20

notice that placing and maintaining a foster child with a known history of sexually abusing

21

his male foster siblings in a home with three young boys would violate the young boys’

22

rights to due process. Based on the allegations at this stage in the proceedings, the Court

23

concludes that the Social Worker Defendants are not entitled to qualified immunity for the

24

alleged violations of the Minor Plaintiffs’ substantive due process rights.

25

The Social Worker Defendants’ Motion to Dismiss Plaintiffs’ first cause of action

26

under § 1983 for violation of Cabelka’s federal rights under the Adoption Act is denied.

27

The Social Worker Defendants’ Motion to Dismiss Plaintiffs’ first cause of action under §

28

1983 for violation of the Minor Plaintiffs’ federal rights under the Adoption Act is granted.
23
18-cv-13-WQH-MSB

1

The Social Worker Defendants’ Motion to Dismiss Plaintiffs’ first cause of action under §

2

1983 for violation of Cabelka’s constitutional rights under the Fourteenth Amendment is

3

granted. The Social Worker Defendants’ Motion to Dismiss Plaintiffs’ first cause of action

4

under § 1983 for violation of the Minor Plaintiffs’ constitutional rights under the

5

Fourteenth Amendment is denied.

6

d. Section 1983 Claims Against the County

7

Plaintiffs allege pursuant to 42 U.S.C. § 1983 that the County violated Plaintiffs’

8

rights under the Adoption Act8 under Monell v. Department of Social Services of New York,

9

436 U.S. 658 (1978).

10

The County contends that “the TAC does not actually identify any formal County

11

policy that perpetuates or condones the violation of Plaintiffs’ rights under the Adoption

12

Act or the Fourteenth Amendment.” (ECF No. 104-1 at 8). The County contends that

13

Plaintiffs fail to allege facts to “support the existence of a widespread practice that,

14

although not authorized by written law or express municipal policy, is so permanent and

15

well settled as to constitute a ‘custom or usage’ with the force of law.” (Id.). The County

16

contends that Plaintiffs’ individual experience with one foster child is insufficient to

17

support an inference of an unlawful County custom. The County contends that Plaintiffs

18

fail to allege non-conclusory factual allegations to support an inference that the County

19

failed to train or discipline its employees.

20

Plaintiffs contend that they sufficiently “identified and enumerated several County

21

policies, customs, and/or practices.” (ECF No. 106 at 15). Plaintiffs contend that they

22

adequately allege Monell liability under a practice or custom theory because multiple social

23

workers engaged in unlawful behavior on multiple occasions. Plaintiffs contend that they

24

properly allege Monell liability based on the County’s failure to supervise and discipline

25

its employees.

26
27
28

8

Plaintiffs do not bring claims against the County for violations of the Fourteenth Amendment.
24
18-cv-13-WQH-MSB

1

42 U.S.C. § 1983 does not provide for vicarious liability; local governments “may

2

not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell,

3

436 U.S. at 694.

4
5
6
7
8
9
10
11
12
13

As a prerequisite to establishing Section 1983 municipal liability, the plaintiff
must satisfy one of three conditions:
First, the plaintiff may prove that a city employee committed the
alleged constitutional violation pursuant to a formal governmental
policy or a longstanding practice or custom which constitutes the
standard operating procedure of the local governmental entity.
Second, the plaintiff may establish that the individual who
committed the constitutional tort was an official with final policymaking authority and that the challenged action itself thus
constituted an act of official governmental policy. Whether a
particular official has final policy-making authority is a question of
state law. Third, the plaintiff may prove that an official with final
policy-making authority ratified a subordinate's unconstitutional
decision or action and the basis for it.

14
15
16
17
18
19
20
21
22
23
24

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Gillette v. Delmore, 979 F.2d
1342, 1346-47 (9th Cir. 1992) (citations and internal quotations omitted)).
Absent a formal government policy, [the plaintiff] must show a “longstanding
practice or custom which constitutes the standard operating procedure of the
local government entity.” Gillette, 979 F.2d at 1346-47. The custom must be
so “persistent and widespread” that it constitutes a “permanent and well
settled city policy.” Monell [ ], 436 U.S. [ ] at 691 [ ]. Liability for improper
custom may not be predicated on isolated or sporadic incidents; it must be
founded upon practices of sufficient duration, frequency and consistency that
the conduct has become a traditional method of carrying out policy. Bennett
v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984). See also: Meehan v. Los
Angeles Cty., 856 F.2d 102 (9th Cir. 1988) (two incidents not sufficient to
establish custom); Davis v. Ellensburg, 869 F.2d 1230 (9th Cir. 1989) (manner
of one arrest insufficient to establish policy).

25

Id. A policy or custom may be inferred from “‘evidence of repeated constitutional

26

violations for which the errant municipal officers were not discharged or reprimanded.’”

27

Nadell v. Las Vegas Metro. Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001) (quoting

28
25
18-cv-13-WQH-MSB

1

Gillette, 979 F.2d at 1349). In “limited circumstances” the failure to train municipal

2

employees can serve as the basis for Monell liability under § 1983. Bd. of the Cty. Comm’rs

3

v. Brown, 520 U.S. 397, 407 (1997). The plaintiff must show that the county had a training

4

policy that “amounts to deliberate indifference” to the rights of the persons with whom the

5

untrained employees are likely to come into contact with and that the injury would have

6

been avoided if the county properly trained its employees. Blankenhorn v. City of Orange,

7

485 F.3d 463, 484 (9th Cir. 2007) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 681

8

(9th Cir. 2001)).

9

The Court has determined that the Minor Plaintiffs fail to allege violations of their

10

rights under the Adoption Act. Accordingly, the County is not liable to the Minor Plaintiffs.

11

See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“Neither Monell . . . nor any

12

of [the Supreme Court’s] other cases authorize the award of damages against a municipal

13

corporation based on the actions of one of its officers when in fact . . . the officer inflicted

14

no constitutional harm.”).

15

The Court has determined that Cabelka has sufficiently alleged that the Social

16

Worker Defendants violated her federal rights under the Adoption Act at this stage in the

17

proceedings. Plaintiffs allege that the County had several policies, customs, or practices

18

that caused the violations of Cabelka’s federal rights, including “[n]ot requiring a social

19

worker to disclose known histories, behavioral, medical, and/or psychiatric problems to a

20

foster parent,” “misrepresenting and/or concealing a foster child’s history and needs in

21

order to attain placement,” and failing to investigate reports of sexual assaults or remove a

22

foster child whose presence threatens other children in the home. (ECF No. 101 ¶¶ 148-

23

49). Plaintiffs allege that the Social Worker Defendants’ supervisors failed to “discipline,

24

investigate, and/or report their subordinate social workers for failing to act pursuant to

25

and/or in accordance with the County’s policies, customs or practices in dealing with

26

Plaintiffs.” (Id. ¶ 151). Plaintiffs allege that the County “did not discipline any of the

27

Individual Defendants for or in relation to their respective conduct, acts, and/or omissions.”

28

(Id. ¶ 152). Plaintiffs allege that the County failed to train its employees to avoid violating
26
18-cv-13-WQH-MSB

1

the Adoption Act, including by failing to train social workers that they are “required to

2

disclose current and relevant information to the care provider regarding the health,

3

education, known or suspected dangerous behaviors, [and] psychiatric issues” of a foster

4

child, and by failing to train social workers that they may not misrepresent or conceal a

5

foster child’s history and needs to obtain placement. (Id. ¶ 155).

6

The alleged violations of the Adoption Act occurred over multiple years, and

7

Plaintiffs allege that multiple County employees lied and failed to provide information to

8

Cabelka about D.G.’s history and background. “It is difficult to discern from the caselaw

9

the quantum of allegations needed to survive a motion to dismiss a pattern and practice

10

claim.” Gonzalez v. Cty. of Merced, 289 F. Supp. 3d 1094, 1099 (E.D. Cal. 2017).

11

However, “where more than a few incidents are alleged, the determination appears to

12

require a fully-developed factual record.” Lemus v. Cty. of Merced, No. 115-CV-00359-

13

MCE-EPG, 2016 U.S. Dist. LEXIS 66294, at *4 (E.D. Cal. May 19, 2016), aff'd, 711 F.

14

App’x 859 (9th Cir. 2017). The Court can infer from Plaintiffs’ allegations that the County

15

had a policy or custom that caused the alleged violations of the Adoption Act. See Lapachet

16

v. Cal. Forensic Med. Grp., Inc., 313 F. Supp. 3d 1183, 1193 (E.D. Cal. 2018) (holding

17

that the plaintiff sufficiently alleged a municipal policy or custom where the plaintiff

18

alleged that multiple employees failed to monitor his health or provide medical treatment

19

of the course of two days). The Court concludes that Cabelka has stated a claim against the

20

County under § 1983 at this stage in the proceedings for violations of her federal rights

21

under the Adoption Act.

22

The County’s Motion to Dismiss Plaintiffs’ second cause of action under § 1983 for

23

violations of the Minor Plaintiffs’ federal rights under the Adoption Act is granted. The

24

County’s Motion to Dismiss Plaintiffs’ second cause of action under § 1983 for violations

25

of Cabelka’s federal rights under the Adoption Act is denied.

26

///

27

///

28

///
27
18-cv-13-WQH-MSB

1

V.

MINOR PLAINTIFFS’ STATE LAW CLAIMS

2

The Minor Plaintiff bring state law claims against Defendants for negligence,

3

negligent and/or intentional misrepresentation, and intentional infliction of emotional

4

distress.

5

a. Negligence

6

Defendants assert that the Minor Plaintiffs fail to state claims for negligence.

7

Defendants contend that the Minor Plaintiffs fail to identify a statute that imposes a

8

mandatory duty on the County or its social workers. The Social Worker Defendants

9

contend that the Child Abuse and Prevention Treatment Act (“CAPTA”), P.L. 93-247, did

10

not impose a mandatory duty on the Social Worker Defendants to report the Minor

11

Plaintiffs’ sexual abuse allegations. The Social Worker Defendants contend that the Minor

12

Plaintiffs fail to identify a provision of California’s Child Abuse and Neglect Reporting

13

Act (“CANRA”), Cal. Pen. Code §§ 11164-11174.3, that imposes a mandatory duty. The

14

Social Worker Defendants contend that they did not have a duty to warn the Minor

15

Plaintiffs because the Social Worker Defendants did not have a special relationship with

16

the Minor Plaintiffs, and D.G. did not threaten any of the Minor Plaintiffs. Defendants

17

further contend that they are immune from liability.

18

The Minor Plaintiffs contend that they “expressly identified” provisions of the

19

California DSS Regulations, the California Welfare and Institutions Code, and the

20

California Penal Code that “create obligatory duties that were breached” by the Social

21

Worker Defendants. (ECF No. 105 at 20). The Minor Plaintiffs contend that the DSS

22

Regulations require a social worker to disclose a foster child’s background information to

23

a foster parent. The Minor Plaintiffs contend that the Social Worker Defendants were

24

required to report that D.G. sexually assaulted T.C. The Minor Plaintiffs contend that the

25

County is liable for the Social Worker Defendants’ negligence pursuant to sections 815.6

26

and 815.2 of the California Government Code. The Minor Plaintiffs contend that

27

Defendants are not immune from liability.

28

///
28
18-cv-13-WQH-MSB

1

1.

Negligence Liability for Social Worker Defendants

2

Section 820(a) of the California Government Code provides that, “[e]xcept as

3

otherwise provided by statute (including Section 820.2), a public employee is liable for

4

injury caused by his act or omission to the same extent as a private person.” “[I]n order to

5

prove facts sufficient to support a finding of negligence, a plaintiff must show that the

6

defendant had a duty to use due care, that he breached that duty, and that the breach was

7

the proximate or legal cause of the resulting injury.” Nally v. Grace Church, 47 Cal. 3d

8

278, 293 (1988) (citing U.S. Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d 586, 594

9

(1970)). A duty may be “imposed by statute, contract or otherwise.” Id. at 292.

10

The Minor Plaintiffs allege that “Defendants were obligated by constitutional

11

provisions, statutes, and/or regulations” to “document, report and subsequently inform

12

others, including Plaintiffs and/or Melanie Cabelka, about D.G.’s physical, medical,

13

behavioral, and emotional condition . . . .” (ECF No. 101 ¶ 162). The Minor Plaintiffs

14

allege that the “foster care requirements”

15
16
17
18

mandate an affirmative duty by Defendants to refrain from undertaking
conduct . . . that puts the Plaintiffs in danger they would not otherwise have
faced . . . These duties included the duty to disclose certain information as
described in detail above, to [Cabelka]. The requirements also include
reporting claims of sexual abuse pursuant to [CAPTA and CANRA].

19

(Id. ¶ 165). The Minor Plaintiffs further allege that “Defendants owed a duty to warn and/or

20

fully inform Plaintiffs of any matter that they ‘knew or should have known’ that might

21

endanger the Plaintiff or his family” pursuant to Johnson v. State of California, 69 Cal. 2d

22

782, 785 (1968)). (Id. ¶ 169).

23

In Johnson, the State of California requested that the Johnson family accept the

24

placement of a sixteen-year-old foster child. 69 Cal. 2d at 784. Mrs. Johnson, the foster

25

mother, alleged that the state knew that the foster child had homicidal tendencies and a

26

background of violence and cruelty to animals and humans, and the state failed to inform

27

the Johnson family of the foster child’s dangerous propensities. Id. at 784-85. The foster

28

child assaulted his foster mother, and the foster mother sued the state for negligence. Id. at
29
18-cv-13-WQH-MSB

1

785. The California Supreme Court held that, “[a]s the party placing the youth with Mrs.

2

Johnson, the state’s relationship to plaintiff was such that its duty extended to warning of

3

latent, dangerous qualities suggested by the [foster child’s] history or character.” Id. at 785

4

(citing cases). The court determined that

5

the state owed a duty to inform Mrs. Johnson of any matter that its agents
knew or should have known that might endanger the Johnson family; at a
minimum, these facts certainly would have included “homicidal tendencies,
and a background of violence and cruelty” as well as the youth’s criminal
record.

6
7
8
9

Id. at 786.

10

The California Supreme Court examined the Johnson holding in Thomspon v.

11

County of Alameda. In Thompson, the county released a juvenile offender into the

12

community, knowing that the offender had dangerous, sexual, and violent propensities

13

toward young children. 27 Cal. 3d 741, 746 (1980). Prior to being released, the juvenile

14

offender indicated to the county that he would kill a young child residing in his

15

neighborhood. Id. The county released the juvenile offender into his mother’s custody and

16

did not warn anyone of the offender’s threat or dangerous propensities. Within twenty-four

17

hours of being released, the juvenile offender murdered a young boy who lived a few doors

18

down from his mother. The court examined whether the county had a duty to warn local

19

police, neighborhood parents, or the juvenile offender’s mother of the offender’s threat. Id.

20

at 749. The court explained that the case law “impose[s] a duty upon those who create a

21

foreseeable peril, not readily discoverable by endangered persons, to warn them of such

22

potential peril.” Id. at 751. The court explained that, unlike Johnson or Tarasoff v. Regents

23

of University of California, 17 Cal. 3d 425 (1976)9,

24

plaintiffs here have alleged neither that a direct or continuing relationship

25
26

In Tarasoff, the court held that a therapist had a duty to warn an “endangered party or those who can
reasonably be expected to notify him” of a serious threat of violence to a foreseeable and identifiable
victim. 17 Cal. 3d at 442, superseded by statute, Cal. Civ. Code § 43.92, as stated in Regents of Univ. of
Cal. v. Superior Court, 29 Cal. App. 5th 890 (2018).
9

27
28

30
18-cv-13-WQH-MSB

1

between them and County existed through which County placed plaintiffs’
decedent in danger, nor that their decedent was a foreseeable or readily
identifiable target of the juvenile offender’s threats. Under such
circumstances, while recognizing the continuing obligation of County, as with
all public entities, to exercise reasonable care to protect all of its citizens, we
decline to impose a blanket liability on County for failing to warn plaintiffs,
the parents of other neighborhood children, the police or James’ mother of
James’ threat.

2
3
4
5
6
7

Id. at 753.

8

In this case, the Minor Plaintiffs allege that the Social Worker Defendants were

9

aware of D.G.’s history of sexual abuse, behavioral issues, and that he had been removed

10

from his previous foster home for sexually assaulting a young boy. The Minor Plaintiffs

11

allege that the Social Worker Defendants knew that Cabelka had three young male children

12

and placed D.G. with the Cabelka family anyway. The Minor Plaintiffs allege that the

13

Social Worker Defendants failed to warn Cabelka of the danger to the Minor Plaintiffs, and

14

the Minor Plaintiffs were assaulted by D.G. as a result. The Court finds that the Minor

15

Plaintiffs have alleged facts from which the Court can conclude a direct relationship existed

16

between the Social Worker Defendants and the Cabelka family. The Court finds that the

17

Minor Plaintiffs have sufficiently alleged facts at this stage in the proceedings to support a

18

finding that the Social Worker Defendants had a duty to warn the Minor Plaintiffs’ mother,

19

Cabelka, of the foreseeable threat.10

20

2.

Social Worker Defendants’ Immunity for Negligence Claim

21

The Social Worker Defendants contend that they

22

are entitled to immunity for their discretionary and quasi-prosecutorial
decisions to (1) place and supervise D.G. in the Cabelka home, (2) intervene
or discontinue D.G.’s placement in the home, (3) warn Plaintiffs of D.G.’s

23
24
25
26
27
28

The Social Worker Defendants do not challenge the Minor Plaintiffs’ pleading of the other elements of
a negligence claim. The Court does not address whether the Minor Plaintiffs have sufficiently pled a duty
under any other statute, rule, or regulation because the Court has determined that the Minor Plaintiffs have
sufficiently pled that the Social Worker Defendants had a duty under the Johnson standard to support a
negligence claim at this stage in the proceedings.
10

31
18-cv-13-WQH-MSB

1
2
3

behavioral issues and sexual abuse, and (4) investigate reports that D.G.
sexually abused other children living in the home.
(ECF No. 103-1 at 26).

4

The Minor Plaintiffs contend that the Social Worker Defendants are not entitled to

5

prosecutorial or discretionary immunity because the allegations do not establish that the

6

Social Worker Defendants consciously balanced risks and benefits and made policy

7

decisions. The Minor Plaintiffs contend that they have not alleged that the Social Worker

8

Defendants were acting pursuant to their prosecutorial or quasi-prosecutorial functions.

9

i.

Discretionary Act Immunity

10

Under section 820.2 of the California Government Code, “a public employee is not

11

liable for an injury resulting from his act or omission where the act or omission was the

12

result of the exercise of the discretion vested in him, whether or not such discretion be

13

abused.” However, “not all acts requiring a public employee to choose among alternatives

14

entail the use of ‘discretion’ within the meaning of section 820.2.” Barner v. Leeds, 24 Cal.

15

4th 676, 684-85 (2000). “[G]overnment defendants have the burden of establishing that

16

they are entitled to immunity for an actual policy decision made by an employee who

17

‘consciously balanc[ed] risks and advantages[.]’” AE ex. rel Hernandez v. Cty. of Tulare,

18

666 F.3d 631, 639 (9th Cir. 2012) (second alteration in original) (quoting Johnson v. State

19

of Cal., 69 Cal. 2d 782, 794 n. 8 (1968)). “The fact that an employee normally engages in

20

‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a

21

considered decision.” Id. (quoting Johnson, 69 Cal. 2d at 794 n. 8). Accordingly, “[i]t

22

would be odd indeed if a plaintiff included in a Complaint allegations that would establish

23

a basis for finding discretionary act immunity on the part of government defendants.” Id. at

24

640; see Elton v. Cty. of Orange, 3 Cal. App. 3d 1053, 1058 (1970) (explaining that the

25

required showing of balancing the risks and advantages could not have been made by the

26

county at the demurrer stage).

27

In this case, the Minor Plaintiffs’ allegations do not demonstrate that the allegedly

28

negligent acts were policy decisions made by government employees who consciously
32
18-cv-13-WQH-MSB

1

balanced the risks and benefits of different alternatives. See AE ex. rel Hernandez, 666

2

F.3d at 640 (concluding that “the County was not entitled to a dismissal of AE’s derivative

3

liability claims on the basis of discretionary act immunity for the allegedly negligent

4

placement and supervision of [a foster child] by [defendant government social

5

workers]”); Uriarte v. Bostic, No. 15cv1606-MMA (PCL), 2017 U.S. Dist. LEXIS 81529,

6

at *27-28 (S.D. Cal. May 26, 2017) (“[T]he Ninth Circuit has indicated that it may be

7

inappropriate for courts to find discretionary act immunity applies at the pleadings stage.”).

8

The Court finds that the Social Worker Defendants have not established that they are

9

entitled to immunity from the Minor Plaintiffs’ negligence claim under section 820.2 of

10

the California Government Code at this stage in the proceedings.

11

ii.

Prosecutorial Function Immunity

12

Under section 821.6 of the California Government Code, “[a] public employee is not

13

liable for injury caused by his instituting or prosecuting any judicial or administrative

14

proceeding within the scope of his employment . . . .” The Court of Appeals for the Ninth

15

Circuit has held that section 821.6 only provides immunity in suits for malicious

16

prosecution. Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016) (holding

17

that Sullivan v. County of Los Angeles, 527 P.2d 865 (Cal. 1974), “confin[ed] [the] reach

18

[of section 821.6] to malicious prosecution actions” and that “the California Supreme Court

19

would adhere to Sullivan even though California Courts of Appeal have strayed from it”).

20

The Minor Plaintiffs do not allege that the Social Worker Defendants engaged in malicious

21

prosecution. The Social Worker Defendants are not entitled to immunity from the Minor

22

Plaintiffs’ negligence claim under section 821.6 of the California Government Code at this

23

stage in the proceedings.

24
25
26

The Social Worker Defendants’ Motion to Dismiss the Minor Plaintiffs’ third cause
of action for negligence is denied.
3.

Negligence Liability for County

27

Under section 815.2(a) of the California Government Code, “[a] public entity is

28

liable for injury proximately caused by an act or omission of an employee of the public
33
18-cv-13-WQH-MSB

1

entity within the scope of his employment if the act or omission would, apart from this

2

section, have given rise to a cause of action against that employee or his personal

3

representative.” The Court has determined that the Minor Plaintiffs have sufficiently pled

4

a cause of action for negligence against the Social Worker Defendants at this stage in the

5

proceedings. The Minor Plaintiffs allege that the Social Worker Defendants were acting

6

within the course and scope of their employment when they failed to disclose D.G.’s

7

dangerous propensities. Accordingly, the Minor Plaintiffs have sufficiently pled a

8

negligence claim against the County at this stage in the proceedings pursuant to section

9

815.2(a).11

10

4.

County’s Immunity for Negligence Claim

11

Section 815.2(b) of the California Government Code provides, “Except as otherwise

12

provided by statute, a public entity is not liable for an injury resulting from an act or

13

omission of an employee of the public entity where the employee is immune from liability.”

14

The Court has determined that the Social Worker Defendants have not shown that they are

15

immune from liability for their alleged negligence at this stage in the proceedings.

16

Therefore, the County is not immune from liability under section 815.2(b) at this stage in

17

the proceedings.
The County’s Motion to Dismiss the Minor Plaintiffs’ third and fourth causes of

18
19

action for negligence is denied.

20

///

21
22
23
24
25
26
27
28

11

Because the Court has determined that the Minor Plaintiffs have sufficiently pled a negligence claim
against the County under section 815.2(a) at this stage in the proceedings, the Court does not address
whether the Minor Plaintiffs have sufficiently pled a negligence claim against the County under section
815.6, which provides:
Where a public entity is under a mandatory duty imposed by an enactment that is designed
to protect against the risk of a particular kind of injury, the public entity is liable for an
injury of that kind proximately caused by its failure to discharge the duty unless the public
entity established that it exercised reasonable diligence to discharge the duty.

34
18-cv-13-WQH-MSB

1

b. Negligent and/or Intentional Misrepresentation Claim

2

Defendants assert that the Minor Plaintiffs fail to state claims for negligent or

3

intentional misrepresentation. The Social Worker Defendants contend that they did not

4

make any misrepresentations to the Minor Plaintiffs. The County contends that the Minor

5

Plaintiffs “have not identified any statutory authority to hold the County of San Diego

6

liable for the misrepresentation” claim. (ECF No. 104-1 at 15). The County contends that

7

it cannot be liable under a theory of vicarious liability because the Minor Plaintiffs fail to

8

allege sufficient misrepresentation claims against the Social Worker Defendants.

9

The Minor Plaintiffs contend that the Social Worker Defendants and the County are

10

liable for negligent or intentional misrepresentation because the Minor Plaintiffs were

11

“foreseeable victims when Defendants placed D.G., a sexual predator, in the Cabelka home

12

and lied about D.G.’s prior history.” (ECF No. 105 at 30).

13

The elements of fraud or intentional misrepresentation are “‘(a) misrepresentation

14

(false representation, concealment, or nondisclosure); (b) knowledge of falsity (or

15

‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e)

16

resulting damage.’” Engalla v. Permanente Med. Grp., 15 Cal. 4th 951, 974 (1997)

17

(quoting Lazar v. Superior Court, 12 Cal. 4th 631, 638 (1996)); California Civil Jury

18

Instructions (“CACI”) No. 1900 (2017). The elements of a claim for negligent

19

misrepresentation are “(1) a misrepresentation of a past or existing material fact, (2) made

20

without reasonable ground for believing it to be true, (3) made with the intent to induce

21

another’s reliance on the fact misrepresented, (4) justifiable reliance on the

22

misrepresentation, and (5) resulting damage.” Ragland v. U.S. Bank Nat’l Assn., 209 Cal.

23

App. 4th 182, 196 (2012).

24

In Randi W. v. Muroc Joint Unified School District, 14 Cal. 4th 1066 (1997), a minor

25

plaintiff brought an action for claims including fraud and negligent misrepresentation

26

against school districts and their employees. The plaintiff alleged that the defendants wrote

27

letters recommending a vice principal for employment at her school without disclosing the

28

vice principal’s history of improper sexual conduct with female students. Randi W., 14 Cal.
35
18-cv-13-WQH-MSB

1

4th at 1071-72. The vice principal was hired at the plaintiff’s school and sexually molested

2

the plaintiff. Id. at 1070. The California Supreme Court concluded that

3

defendants’ letters of recommendation, containing unreserved and
unconditional praise for former employee Gadams despite defendants’ alleged
knowledge of complaints or charges of his sexual misconduct with students,
constituted misleading statements that could form the basis for tort liability
for fraud or negligent misrepresentation. Although policy considerations
dictate that ordinarily a recommending employer should not be held
accountable to third persons for failing to disclose negative information
regarding a former employee, nonetheless liability may be imposed if, as
alleged here, the recommendation letter amounts to an affirmative
misrepresentation presenting a foreseeable and substantial risk of physical
harm to a prospective employer or third person.

4
5
6
7
8
9
10
11

Id.

12

In this case, the Minor Plaintiffs allege that the Social Worker Defendants

13

affirmatively misrepresented D.G.’s history in the foster care system, D.G.’s violent

14

propensities, and D.G.’s history of sexual abuse. The Minor Plaintiffs allege that after

15

Cabelka complained about D.G.’s behaviors and suspected his history of sexual abuse, the

16

Social Worker Defendants reassured Cabelka that all of D.G.’s behaviors were new. The

17

Minor Plaintiffs allege that the Social Worker Defendants knew or should have known the

18

representations were false. The Minor Plaintiffs allege that the Social Worker Defendants

19

made the representations to induce Cabelka to accept and keep D.G. in her home. The

20

Minor Plaintiffs allege that the Social Worker Defendants knew that Cabelka had three

21

young sons. The Minor Plaintiffs allege that Cabelka relied on the Social Worker

22

Defendants’ representations in bringing and keeping D.G. in her home, and the Minor

23

Plaintiffs were assaulted as a result. See Dillard v. Victoria M. Morton Enters., No. 08-

24

1339 FCD/GGH, 2008 U.S. Dist. LEXIS 79588, at *22-23 (E.D. Cal. Oct. 8, 2008) (relying

25

on Randi W. to hold that two minor children stated a claim for misrepresentation where the

26

minor children suffered flu-like symptoms after their mother relied on the defendants’

27

representations about the safety of their products). The Court finds that the Minor Plaintiffs

28

have alleged facts from which the Court can infer at this stage in the proceedings that the
36
18-cv-13-WQH-MSB

1

Social Worker Defendants made an affirmative misrepresentation to Cabelka that

2

presented a foreseeable and substantial risk of harm to her children, the Minor Plaintiffs.

3

The Minor Plaintiffs allege that the Social Worker Defendants were acting within

4

the course and scope of their employment when they made misrepresentations to Cabelka.

5

Therefore, the County may be liable to the Minor Plaintiffs. See Cal. Gov. Code § 815.2(a).

6

Defendants’ Motions to Dismiss the Minor Plaintiffs’ fifth cause of action for

7

negligent and/or intentional misrepresentation is denied.

8

c. Intentional Infliction of Emotional Distress Claim

9

Defendants assert that the Minor Plaintiffs fail to state claims for intentional

10

infliction of emotional distress. The Social Worker Defendants contend that the Minor

11

Plaintiffs fail to allege facts that show the Social Worker Defendants’ behavior was

12

outrageous. The Social Worker Defendants contend that they did not intentionally or

13

recklessly cause harm to the Minor Plaintiffs. The Social Worker Defendants contend that

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T.C. does not allege facts that show that he suffered severe emotional distress. The County

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contends that it cannot be liable under a theory of vicarious liability because the Minor

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Plaintiffs fail to allege sufficient intentional infliction of emotional distress claims against

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the Social Worker Defendants.

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The Minor Plaintiffs contend that the Social Worker Defendants’ lies, omissions,

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threats, and coercion constitute outrageous behavior. The Minor Plaintiffs contend that the

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Social Worker Defendants knew the danger that D.G. posed to the Minor Plaintiffs and

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recklessly disregarded it. The Minor Plaintiffs contend that T.C. has sufficiently pled an

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emotional distress claim.

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To establish a claim for intentional infliction of emotional distress, a plaintiff must
show:
(1) extreme and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing, emotional distress;
(2) the plaintiff’s suffering severe or extreme emotional distress; and (3)
actual and proximate causation of the emotional distress by the defendant’s
outrageous conduct.
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Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (quotation omitted). A defendant’s conduct
is “outrageous” when it is “so extreme as to exceed all abounds of that usually tolerated in
a civilized community.” Id. Outrageous behavior can occur where a defendant knows of a
dangerous condition, fails to warn about the danger, and the plaintiff suffers physical harm
as a result. Wilson v. S. Cal. Edison Co., 234 Cal. App. 4th 123, 152 (2015); see Bradley
v. Dep’t of Children & Family Servs., No. CV 17-6556-JFW (AGR), 2018 U.S. Dist LEXIS
226147, at *14 (C.D. Cal. Mar. 12, 2018) (holding that a foster child adequately pled claim
for intentional infliction of emotional distress by alleging that after disclosing that he was
sexually abused by his foster parent, social workers responded that the foster child “did not
have a choice” but to return to the foster home, threatened to split him up from his brother
if he refused to comply, failed to conduct an adequate investigation, attempted to cover up
the allegations, and did not immediately seek a different foster home for the plaintiff or his
brother), vacated on other grounds, 2018 U.S. Dist. LEXIS 226145 (C.D. Cal. Apr. 26,
2018).
In this case, the Minor Plaintiffs allege that the Social Worker Defendants
misrepresented and concealed the facts that D.G. had known violent propensities, had been
sexually abused, had witnessed the abuse of his siblings, and had been removed from his
previous home because he sexually assaulted a young boy. The Minor Plaintiffs allege that
the Social Worker Defendants told Cabelka not to go to the police and to allow D.G. to
remain in her home after Cabelka reported his sexual attacks on the Minor Plaintiffs. The
Minor Plaintiffs allege that T.C. was 13, D.C. was 12, and J.C. was six when they were
sexually assaulted by D.G. The Minor Plaintiffs allege that D.C. was “traumatized by the
rape.” (ECF No. 101 ¶ 71). The Minor Plaintiffs allege that D.C. was unable to speak for
hour after the rape, requires trauma therapy, experiences anxiety attacks at school, and
“wears numerous layers of clothing to prevent anyone from touching him.” (Id.). The
Minor Plaintiffs allege that J.C. experienced “significant abrasions and injuries on his
penis, and the surrounding area,” after his sexual assault by D.G. (Id. ¶ 93). The Minor
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Plaintiffs allege that J.C. cried for days after the assault, is terrified to sleep in his room,

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and requires the assistance of a therapist to cope with post-traumatic stress disorder. The

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Minor Plaintiffs allege that T.C. “watched, frozen in terror, as D.C. was violently

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sodomized by D.G.” (Id. ¶ 202). The Minor Plaintiffs allege that they stayed home from

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school on multiple days because they were afraid of D.G. The Minor Plaintiffs allege that

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childhood sexual abuse causes “significant emotional trauma.” (Id. ¶ 197).

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The Minor Plaintiffs’ factual allegations support an inference that the Social Worker

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Defendant’s behavior was extreme and outrageous and that the Social Worker Defendants

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acted with a reckless disregard for the possibility that the Minor Plaintiffs would be

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sexually assaulted by D.G. See Rozario v. Richards, 687 F. App’x 568, 571 (9th Cir. 2017)

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(finding that the plaintiff alleged outrageous conduct where the defendant encouraged

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plaintiff to pet a dog and stated that the dog was sweet and cuddly (knowing that the dog

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was dangerous and had previously bitten another person) and discouraged the plaintiff from

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contacting paramedics after being attacked). The Minor Plaintiffs’ factual allegations

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support an inference that each Minor Plaintiff suffered severe emotional distress. The Court

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concludes that the Minor Plaintiffs sufficiently state a claim against the Social Worker

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Defendants for intentional infliction of emotional distress at this stage in the proceedings.

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The Minor Plaintiffs allege that the Social Worker Defendants were acting within

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the course and scope of their employment when they engaged in outrageous behavior.

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Therefore, the County may be liable. See Cal. Gov. Code § 815.2(a).
Defendants’ Motions to Dismiss the Minor Plaintiffs’ sixth cause of action for

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intentional infliction of emotional distress is denied.

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VI.

CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss filed filed by Defendants

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Sarah Wilson, Carlos Olmeda, Fatimah Abdullah, and Marilyn Sproat (ECF No. 103) is

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granted in part and denied in part. The Motion to Dismiss filed by Defendant County of

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San Diego (ECF No. 104) is granted in part and denied in part. No later than thirty days

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from the date of this Order, Plaintiffs may file a motion for leave to amend pursuant to

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Civil Local Rules 7.1 and 15.1(c).

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Dated: April 6, 2020

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