Government Liability Update

School Personnel Can Be Found Negligent for Failing to Comply with District and School Anti-Bullying Policies

In E.I. v. El Segundo Unified School District, published June 13, 2025, the Second District Court of Appeal, Division 8 affirmed a jury verdict for the plaintiff.  The plaintiff who was a middle-school student who was subjected to extensive online and in-person bullying by two classmates.  The plaintiff, her parents, and schoolmates repeatedly reported the bullying to school personnel.  The personnel failed to respond as directed in the District's Comprehensive Safety Plan and the school's own safety plan.  The safety plans were modeled on the Education Code's provisions addressing school safety.  At one point, the district called the police when one of the bullies created a "petition to end [plaintiff's] life and multiple students signed it; but the district did not notify the plaintiff or her parents of the petition, and the parents only learned of it from another student's mother.  The plaintiff suffered emotional trauma, including at one point cutting herself to get attention.  The plaintiff sued the district for negligence and negligent hiring, retention, supervision and training, both under Education Code section 44807 and Government Code sections 815.2, 815.4, 815.6, 820, and 835.  During trial the plaintiff dismissed the negligent supervision cause of action.  The jury found the district negligent and that its negligence was a substantial factor in causing the plaintiff's injuries.  It awarded the plaintiff $1 million.

The appellate court rejected the district's multiple arguments for reversal.  The appellate court agreed with the district that Education Code sections 48900, 48900.5, 48900.7 and 48911 do not create private causes of action or create a mandatory duty of care owed to plaintiffs with respect to economic damages arising from educational injury.  But plaintiff did not base her negligence cause of action on those statutes, but rather on Education Code section 44807, which supports the duty of school authorities to supervise children on school grounds and enforce rules and regulations necessary to their protection; and Government Code section 815.2(a), which makes the district vicariously liable for injuries caused by its employees' negligence.  The school employees had a duty to protect the plaintiff from harm caused by other students.  Government Code section 820.2's discretionary immunity did not immunize the school employees' decisions in determining how to respond to the complaints of bullying.  Section 820.2 immunizes basic policy decisions.  The plaintiff did not claim that the district or school were negligent in crafting anti-bullying policies.  She claimed that the employees negligently failed to protect her by, among other things, not following the safety policies already in place.  Lower-level decisions that merely implement a basic policy already formulated are not immunized by section 820.2.  The district complained that the special verdict form set forth the negligent supervision claim that the plaintiff dismissed.  But this was harmless error, because the district failed to show that the jury would have awarded the plaintiff less in damages for negligence if the verdict did not include the negligent training and supervision theory.

County Welfare Department Had Mandatory Duty under CANRA to Cross-Report Mandated Reporter's Report of Suspected Child Abuse

In Holman v. County of Butte, ordered published May 15, 2025, the Third District Court of Appeal reversed summary judgment in favor of the defendant county.  The plaintiff alleges that when he was 14, his parents began a pattern of physical abuse against him.  While the plaintiff was 14, the defendant county's welfare department received a report of suspected child abuse from the plaintiff's teacher, who was a mandated reporter under the California Abuse and Neglect Reporting Act (CANRA).  The teacher spoke to an intake social worker.  The teacher then completed a written suspected child abuse report.  The social worker completed a Structed Decision Making Hotline Tools form.  The social worker decided the allegations did not meet the definitions of abuse, and accordingly did not check the boxes on the form regarding abuse.  He "evaluated out" the referral.  He documented his decision, and his supervisor approved it.  Because the referral was "evaluated out," the social worker did not cross-report the allegation to local law enforcement.  The plaintiff contended the abuse continued for two years.  The plaintiff brought two causes of action under Government Code section 815.6 for violation of mandatory duty.  The first cause of action alleged that the Ccounty negligently failed to perform a mandatory duty under Welfare and Institutions Code sections 328 and 16504 to evaluate and investigate the “substantiated” report of child abuse.  The second alleged that the county breached a mandatory duty under Penal Code section 11166, subdivision (j), by failing to cross-report the allegations of abuse to local law enforcement and the district attorney’s office. The trial court granted summary judgment, concluding that the social worker fulfilled his ministerial duties under CANRA, and was exercising his discretion when he decided to "evaluate out" the child abuse report; and that his decision was therefore protected by  discretionary immunity.

The appellate court reversed summary judgment as to the second cause of action.  Because the county moved for summary judgment and summary adjudication, the county had to defeat both causes of action to prevail.  In B.H. v. County of San Bernardino, the California Supreme Court ruled that subdivision (k) of Penal Code section 11166, which applies to law enforcement agencies, imposed a mandatory and ministerial duty on a sheriff's department to cross-report child abuse allegations made to a 911 operator to a child welfare agency.  The B.H. court further held that the determination of whether a reported incident involves child abuse or neglect is a mandatory, not a discretionary function; and that use of judgment to determine whether a report involves child abuse or neglect does not involve the exercise of discretion.  By the same reasoning, subdivision (j) of section 11166, which deals with cross-reporting by county welfare agencies, imposed a mandatory duty on the county agency here to cross-report the report of abuse to law enforcement.  Even if social workers are required to cross-report only those allegations determined to meet the definitions of abuse or neglect, there is a triable issue of fact in this case as to whether the county violated a mandatory duty by failing to cross-report the referral.  Because a triable issue existed as to the second cause of action, the court did not have to decide whether the court correctly ruled on the first cause of action.  

Existence of Fundamental Rights Protected by Substantive Due Process Is Not Determined by Applying the Qualified Immunity Analysis

In Regino v. Staley, published April 4, 2025, the 9th Circuit Court of Appeals reversed dismissal of a 42 U.S.C. section 1983 suit at the pleading stage.  A school district had a policy that prohibited conduct such as refusing to address a student by a name and pronouns consistent with the student’s gender identity and revealing a student’s transgender status to those who do not have a legitimate need for the information without the student’s consent.  One of the plaintiff’s two children, who was 11 and biologically female told a school counselor that the child felt like a boy.  The child stated that the child would prefer male pronouns and that the child did not want the mother to know.  The counselor arranged for school personnel to refer to the child by a male name and male pronouns.  The counselor advised the child about LGBTQ+ support, top surgery, and breast binding.  When the child told the counselor the child wanted  to tell the mother about the new gender identity, the counselor encouraged the child to speak with other family members first.  The child spoke to the child’s grandmother, who then told the mother.  The mother told the child that the mother supported the child in her decisions if that is what the child wanted. The mother expressed to the school personnel her concern that she had not been informed that the personnel were treating her child as a boy; and that if she had known she would not have allowed them to “socially transition her daughter without first seeking guidance from a mental health professional.”  Later, the child’s feelings about being a boy subsided.  At the time the complaint was filed, the child identified as a girl and was in therapy for depression and anxiety.  Meanwhile, the mother’s other child allegedly began exhibiting traits making her more likely to identify as a boy as she gets older.  The mother filed suit seeking a declaration invalidating the policy as violating the mother’s constitutional rights and an injunction against the policy’s enforcement.  She asserted facial and as-applied procedural and substantive due process and First Amendment claims.  The district court dismissed the action, ruling that the mother had failed to allege the existence of a fundamental right that was clearly established in existing precedent.  It denied leave to amend as futile.

The 9th Circuit ruled that the district court erred in dismissing the substantive due process claim, because the district court failed to conduct the proper analysis in determining whether the mother adequately alleged the existence of a cognizable fundamental right protected by substantive due process.  Parents have a broad fundamental right to make decisions concerning the care, custody, and control of their children, but those rights are confined by the interests of the State.  The district court erred by borrowing the standard for qualified immunity and determining whether the right had been clearly established and placed beyond debate by existing precedent.  The qualified immunity framework does not govern the merits of substantive due process claims.  Instead, the inquiry is whether an asserted fundamental right is objectively deeply rooted in the Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it was sacrificed.  While courts must be reluctant to expand the concept of substantive due process and exercise the utmost care before breaking new ground, the right does not have to be clearly established by precedent.  The appellate court declined to undertake the proper analysis itself, because the parties had failed to consistently articulate the scope of their respective claims and defenses.  The substantive due process analysis must begin with a careful description of the asserted fundamental right.  The plaintiff had provided shifting definition of the right, and the defendants had failed to consistently identify the district’s justification for its policy.  The district court had no opportunity to address the parties’ revamped arguments.  The 9th Circuit therefore remanded the issue to the district court.  The court will have to determine whether the plaintiff’s asserted right meets the criteria for a fundamental right and examine the nuances of the district’s policy, considering precedents on parents’ rights and the state’s interests in limiting those rights.  Regarding the procedural due process claim, the district court erred in determining a lack of a fundamental right defeated that claim.  Procedural due process does not merely protect fundamental rights; it protects all liberty interests derived from state law or from the Due Process Clause itself.  The 9th Circuit remanded that issue as well.

Social Worker and County Entitled to Discretionary Immunity for Allegedly Maintaining Foster Placement Despite Reports of Sexual Abuse

In K.C. v. County of Merced, published March 11, 2025, the Fifth District Court of Appeal affirmed dismissal of the plaintiff's action after demurrer.  The plaintiff alleged that she was sexually abused and assaulted while in two foster care placements between 1971 and 1977.  The plaintiff alleged she repeatedly reported the sexual abuse at the first foster placement to her county social worker.  She further alleged the county was on notice of the abuse at the second placement because of the change in the plaintiff's demeanor.  She filed suit in 2022.  The county demurred on the grounds that the social worker was entitled to immunity under Government Code section 820.2, and the county was therefore immune under Government Code section 815.2, subdivision (b).  The trial court sustained the demurrer without leave to amend.

The appellate court noted that the lawsuit was timely under the amendment to Code of Civil Procedure section 340.1 that revived time-barred claims relating to childhood sexual assault.  The court nevertheless affirmed the demurrer based on the social worker's immunity under Government Code section 820.2's discretionary immunity, which under section 815.2(b) applied to the county employing the social worker.  Section 820.2 applies to discretionary foster child placements.  It therefore applied to decisions whether to undertake investigative or corrective action in response to reported child abuse.  While a finding of immunity requires a showing that the specific conduct giving rise to the suit involved a conscious balancing of risks and advantages, a strictly careful, thorough, formal, or correct evaluation is not mandatory.  Under a fair reading of the complaint, the plaintiff essentially alleged the county's social workers were confronted with reports of sexual abuse that should have prompted investigative or corrective action, but they failed to properly exercise their discretion to do so.  This was a claim of improper evaluation, which cannot divest a discretionary policy decision of its immunity.

Jury Properly Assigned Liability for Student's Injury to Him and Other Student Fighting Him, Rather than Teacher Who Fell on Student while Trying to Break Up Fight

In I.C. v. Compton Unified School Dist., ordered published February 6, 2025, the Second District Court of Appeal, Division 8 affirmed a judgment entered after jury trial.  The 16-year-old plaintiff and his friend started a fist fight during an art class.  Their teacher intervened.  The teacher weighed 375 pounds, and had recently been using a walker because of a back condition.  While pulling the larger boy away from the plaintiff, and while plaintiff was hitting the teacher, the teacher lost his balance and fell on the plaintiff's leg, causing a severe fracture.  The incident was captured on video.  The plaintiff sued the teacher and the school district for negligence.  He contended the teacher should not have stopped the fight, and instead should have prevented it, and that the school district failed to adequately train the teacher in safely intervening in student fights.  The court rejected expert witnesses from both sides.  The court also declined to give multiple instructions the plaintiff requested regarding duty.  The jury assigned 50% fault for the injury to the plaintiff and 50% to the other boy, and found that neither the teacher nor the district was negligent.

The appellate court rejected the plaintiff's arguments of error.  It affirmed the trial court's denial of JNOV to the plaintiff, finding substantial evidence supported the jury's conclusion that neither the teacher nor the district was negligent.  The plaintiff's contentions that there was insufficient evidence that the district's training was reasonable and that the teacher acted with due care assume that the burden was on the defendants to prove lack of negligence.  But the plaintiff had the burden to prove negligence.  Plaintiff's contention that the jury had to be instructed on the nature of the special relationship between student and teacher, the duty of school authorities to supervise children and enforce rules, the standard of care for school employees, the duty of school authorities to train and supervise employees, the duty of school personnel to use reasonable measure to protect students, and the foreseeability of the injury failed.  None of the instructions was necessary to assist the jury in deciding whether the teacher breached his duty to use reasonable care to prevent harm to others.  The jury was adequately instructed to decide how a reasonably careful person would have acted in the teacher's situation.  Exclusion of the plaintiff's expert on intervening in fights was within the trial court's discretion, based on the evidence that the expert had no experience teaching or managing a classroom.  Further, the jury watched the video, and did not need an expert to expound upon how the intervention happened and whether it was done safely.

County Child Welfare Agency That Received Complaints from Child That He Was Being Hurt Had Duty of Care to Child

In D.G. v. Orange County Social Services Agency, ordered published January 31, 2025, the Fourth District Court of Appeal, Division 3 reversed the summary judgment granted to the defendant county.  The plaintiff and his siblings were first placed in a foster home in 1972, when the plaintiff was three.  The foster parents were licensed, had no criminal history, and had never been accused of sexual abuse.  When he was five years old, the plaintiff claims, he started telling his social worker, "Bad people are hurting me."  He did not tell the social worker to whom he was referring.  He asserts he told the social worker this repeatedly, and tried to explain how the bad people were hurting him.  There is no evidence the social worker followed up on the statements.  The social worker was also allegedly aware of a bedwetting problem that the plaintiff developed after he moved into the foster home.  The social worker was aware that bedwetting was common in children who had experienced trauma, but based on the plaintiff's history and situation she did not consider it a red flag.  Years before the plaintiff's placement, a nine-year-old foster child had told his social worker he felt weird taking showers with the same foster father.  The county did not follow up on the report, and continued to place children with the foster family after the report.  The social worker had no suspicions of sexual abuse in the foster home.  An adoption home study did not reveal evidence of abuse or the risk of abuse.  In 1978, the plaintiff was adopted by the foster family.  He lived with the family until the mid-80s, when he was arrested.  In 1986, the plaintiff disclosed to a therapist at juvenile hall that the foster father had molested him.  The therapist reported this to the county.  This was the first formal report of sex abuse the county received about the father.  In 2019, the foster father admitted to sexually abusing his four oldest sons, including the plaintiff.  The plaintiff sued the county for negligence. He alleged sexual abuse throughout his placement with the family. The trial court granted summary judgment for the county on the grounds of lack of duty to protect the plaintiff from unforeseeable criminal conduct, and that the social worker (and therefore the county) were immune under Government Code section 820.2 discretionary immunity.

The appellate court disagreed on both points.  There is a special relationship between a foster child and the agency that provides his or her care.  Once a special relationship is established, the trial court must look to the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 to decide whether they require creating an exception to the duty of care at issue.  The trial court erred by analyzing only the foreseeability Rowland factor.  The trial court also misapplied the foreseeability factor, by determining only whether the information the county received constituted actual knowledge that would make the foster father's conduct foreseeable.  In applying Rowland, the court's task is not to decide whether a particular plaintiff's injury was foreseeable in light of a particular defendant's conduct, but whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced.  The relevant question is whether the failure to investigate sexual abuse by a foster parent once the potential for abuse is raised by a foster child is likely to result in continued sexual abuse.  Case-specific foreseeability questions, such as whether there was actual knowledge of abuse, are relevant in determining the actual standard of care or breach in a particular case, but do not inform the threshhold determination that a duty exists.  The appellate court concluded that it was sufficiently foreseeable that the failure by the county to inquire or investigate when a foster child suggested abuse had occurred makes it appropriate to impose a duty to protect.  The other Rowland factors (except availability of insurance, for which there was no information) do not support an exception to imposing a duty in this case.  As for discretionary immunity, the court agreed that decisions of child welfare agency employees concerning determinations of child abuse and placement are subjective discretionary ones.  But there is no evidence in the record that the social worker here or anyone else exercised discretion--that she made a judgment call about whether to leave the plaintiff in the foster home after considering possible abuse based on the information known to her or the county.  The county therefore failed to shift the burden to the plaintiff on that issue.  Even if the burden had shifted, the evidence created triable issues of fact as to whether the social worker did actually consider facts indicating possible abuse.

Divided Appellate Court Affirms Judgment Apportioning 100% Fault to Entity That Failed to Prevent Molestation and 0 to Molester

In A.H. v. Tamalpais Union High School Dist., published September 9, 2024, the First District Court of Appeal, Division 2 affirmed a judgment against the district entered after jury trial.  The plaintiff was molested by his school tennis coach.  Before the molestation occurred, the school principal received a report that the coach had touched a student's genitals while measuring body fat.  After investigation, the principal wrote the coach a letter of warning in which he stated he would create a protocol for body fat measurement.  The principal did not place the letter in the coach's personnel file, did not create the protocol, and did not tell other P.E. teachers or supervisors about the complaint.  Before plaintiff's molestation, the coach improperly touched multiple other students during body fat measurements and massages.  After the plaintiff graduated, the principal received a second complaint about the coach involving a body fat test.  In closing argument, the plaintiff asked the jury to apportion 90% fault to the district and 10% to the coach.  The district's counsel asked the jury to apportion 75-90% fault to the coach.  The jury awarded $10 million in noneconomic damages, and apportioned 100% responsibility to the district and 0% to the coach.  The district did not criticize the verdict regarding apportionment of fault after the jury returned it.  The district did not move for new trial.  The district appealed, arguing that the trial court failed to properly instruct the jury and that the fault apportionment showed the error was prejudicial.  It also argued that the trial court abused its discretion in admitting evidence of the molestations that were not reported to the district, the complaint after the plaintiff graduated, and of the coach's conviction 16 years after the plaintiff graduated.

The court rejected the claims of error.  The district complained that the trial court did not give its requested instructions that the district could not be held vicariously liable for the molestation, and could be held liable only for supervisors' negligence in hiring, supervision, and retention.  The appellate court ruled that the instructions given adequately communicated these concepts to the jury.  The district argued that the trial court should have given the district's proposed special instruction based on language in C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 noting that ordinarily lie with the individual who intentionally abused or harassed the students, and that the fact should be reflected in any allocation of comparative fault.  The court agreed with the trial court that the language did not create an actual standard, but was instead a comment by the Supreme Court regarding what happens at times.  CACI No. 406, which was given, correctly instructs the jury on apportionment.  Instructing the jury with the proposed language would have confused the jury.  Because the district failed to show instructional error, the majority declined to reach the district's argument that the "legally impossible" verdict apportioning no fault to the molester showed prejudicial error.  The court noted that the district did not separately claim insufficiency of the evidence as to the jury's apportionment finding.  The court also rejected the evidentiary arguments, finding the trial court did not abuse its discretion in deeming the unreported molestations relevant to the pervasiveness of the coach's molestation and the negligence of the supervisors in failing to detect or prevent it, the subsequent molestation as relevant to lack of reasonable supervision following the earlier complaint, and the later conviction relevant to damages because the plaintiff testified at the criminal trial.

A dissenting justice opined that despite the district's failure to raise insufficiency of the evidence to attack the fault apportionment, the court should have addressed the issue sua sponte and reversed the apportionment as improper as a matter of law.  The justice urged the California Supreme Court to grant review of the decision.

"Counsel Mandate" Bars Non-Attorney Parent from Representing Children's Claims Pro Se

In Grizzell v. San Elijo Elementary School, published August 7, 2024, the 9th Circuit affirmed the district court's dismissal without prejudice of a civil rights case against the defendant school and school district.  The plaintiff enrolled her children in the school under the McKinney-Vento Homeless Assistance Act.  She alleges that the children suffered racial discrimination and harassment, and were ultimately unlawfully unenrolled.  She asserted claims under the Equal Protection and Due Process clauses of the 14th Amendment, Title IV and Title VI of the Civil Rights Act of 1964, and several other federal and state educational laws.  When the plaintiff conceded that the lawsuit only concerns her children's claims, the district court dismissed the action without prejudice because the minors could proceed with their claims only through an attorney licensed to practice in the court.  The plaintiff appealed.

The 9th Circuit panel affirmed.  The "Counsel mandate" requires a non-attorney parent to be represented by counsel in bringing an action on behalf of her child.  The right to proceed pro se under 28 U.S.C. section 1654 does not create a true choice for minors who, under state law, cannot determine their own legal actions, and does not overcome the rule that a non-lawyer has no authority to appear as an attorney for others.  The panel acknowledged the important interests raised by the plaintiff's allegations, and that other circuits have allowed more flexibility in permitting a pro se parent to make a child's case the parent's own.  But the panel viewed itself bound by precedent.

Social Workers Not Entitled to Absolute or Qualified Immunity for Failing to Give Parent Notice of Juvenile Court Detention Hearing or Misrepresenting Reason for Failure

In Rieman v. Vasquez, published March 5, 2024, the 9th Circuit Court of Appeals affirmed denial of absolute and qualified immunity to the defendant social workers.  The plaintiff infant fell off a bed.  His mother (a plaintiff) and grandmother took him to a hospital, which examined him but did not perform any diagnostic studies.  A nurse at the hospital, as a mandated reporter, reported the incident to the county Child and Family Services.  A defendant social worker went to the family's home and advised the mother to take the baby to another hospital for further evaluation.  The family asked to speak to the social worker's supervisor.  The mother, grandmother and the mother's stepfather drove to the office to meet with the supervisor.  On the way, they made an appointment for the baby to be seen by a doctor.  The family met with the defendant supervisor, who urged them to consider taking the baby to to the hospital to be evaluated by another doctor.  The CFS representives did not not inform the family that CFS would seek a warrant if the mother did not take the baby to the hospital.  After the family left, the supervisor and social worker applied for a detention warrant.  Based on the application, the juvenile court issued a temporary detention warrant for the child.  Law enforcement and the social worker attempted multiple times that day and the next morning to serve the warrant at the mother's home address, without success.  The social worker then prepared a juvenile dependency petition and detention report, scheduling a detention hearing for the morning after the petition and report were filed.  In the report, which the supervisor and social worker signed, they claimed the mother was not noticed for the detention hearing  because her whereabouts were unknown.  They listed a different telephone number than the one listed for the mother in the original referral CFS compiled.  Meanwhile, the family tried to contact CFS on several occasions.  The supervisor and social worker never called or otherwise attempted to notify the mother of the detention hearing.  The mother did not appear at the hearing.  At the hearing, the court ordered the child to be detained and placed in CFS's custody, issued a warrant of apprehension, and set the matter for another conference nearly a month later.  The mother learned of the hearing two days after the hearing.  Soon after hearing of it, the mother provided CFS with additional medical records for the child.  CFS representatives told her that the issue was out of their hands, and CFS could not withdraw the warrant.  The mother took the baby to the hospital, where she was forced to relinquish the child to a law enforcement officer.  The baby was returned almost two months later.  The mother and baby sued the social worker and supervisor under 42 U.S.C. section 1983 alleging violation of their 14th Amendment rights by failing to provide notice of the detention hearing and providing false information to the juvenile court about why the mother was not noticed for the hearing.  The district court denied the defendants' motion for summary judgment based on absolute and qualified immunity, and granted the plaintiffs' motion for summary judgment, ruling the plaintiffs' 4th and 14th Amendment rights were violated.

The 9th Circuit agreed that the defendants were not entitled to absolute or qualified immunity.  They were not entitled to absolute prosecutorial immunity for initiating the juvenile dependency proceeding.  Social workers may enjoy absolute immunity from suit when they make discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.  But the defendants were not sued for instituting the dependency proceedings; they were sued for failing to provide notice and for acts of judicial deception regarding the mother's whereabouts.  These actions and omissions are not similar to discretionary decisions about whether to prosecute, and so are not subject to absolute immunity.  The defendants were not entitled to qualified immunity, because they violate the mother's clearly-established right to notice of the dependency hearing before she was deprived  of custody of her child, and violated the plaintiffs' clearly-established right to be free from deception in the presentation of evidence during juvenile dependency hearings.

Social Workers Were Not Entitled to Qualified Immunity for Alleged Misrepresentations and Omissions in Removal Warrant Application, but Were Entitled to Qualified Immunity for Schoolhouse Interview of Minor

In Scanlon v. County, published February 2, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part judgment against the defendant county and individual social workers in a suit under 42 U.S.C. section 1983.  The plaintiff parents had two children.  One of them, age 9, was autistic, with violent behaviors.  The plaintiff mother asked the child's pediatrician about using medical marijuana as a possible treatment.  He stated he had no experience with that approach.  She attempted to schedule an appointment with a doctor who was expert on pediatric medical marijuana, but the doctor had a year-long waiting list.  She consulted with an anesthesiologist  who had some experience treating autistic children with medical marijuana.  He gave a one-month recommendation to the child to start using medical marijuana.  He advise starting the child at the lowest possible dose and watch for side effects.  He did not recommend or prescribe any particular dosage.  The mother ordered THC oil and worked with a "dosing specialist" who was not a licensed medical provider.  The anesthesiologist recommended to the mother she continue the regiment, and gave a second recommendation.  The defendant county's child welfare agency received two anonymous referrals reporting that the child had arrived at school with glazed eyes, and apparently under the influence of marijuana.  The assigned social worker spoke with the child's teacher.  The social worker reported that the teacher told her that the child was showing signs of being under the influence and smelled of marijuana.  The teacher contradicted those observations in her deposition testimony.  The social worker then spoke with the mother.  The mother testified that she was cooperative, told the worker about the physician's recommendation, and allowed the social worker to handle the THC oil bottle.  The social worker contended that the mother was uncooperative, refused to reveal information about the physician or the dosage, and would not let her have the bottle.  They agreed that the mother did not provide the specific dosage, and that the social worker told the mother the household needed a lockbox for the THC.  They also agreed that the mother sent the social worker the anesthesiologist's written recommendation and contact information for the child's pediatrician.  The social worker then pulled the younger child out of class and met with her alone.  The younger child stated that she was not allowed to touch the medicine, but admitted having handled the bottle.  The social worker contacted the pediatrician, who was unaware the child was taking medical medical marijuana.  After a meeting between social workers and the parents, the events of which were disputed, the social worker prepared a Statement of Cause for a protective custody warrant to detain both children.  The statement alleged general neglect, based on evidence that the parents were treating the child's autism with cannabis oil, and purportedly had not consulted with a medical professional or a professional who deals with autism; that the mother was experimenting with dosage; that the teacher gave information about negative effects of marijuana on the child.  The statement referred to the consultations with the anesthesiologist and the pediatrician, and a pending appointment with a pediatrician specializing in treating autism with cannabis.  The court approved a warrant directing the removal of the children.  The children were removed and spent five days in foster homes.  The pediatrician who specialized in treating autism with medical marijuana attended a hearing on the children's case, at which the court dismissed the removal petition.  The parents and children sued, alleging violation of multiple constitutional rights.  The district court dismissed some of the claims, and granted summary judgment on others.  A trial was held on the remaining claim, which centered on the parents' claim they had bought a lockbox.  The jury ruled in favor of the defendants.

The 9th Circuit reversed the district court's grant of summary judgment on the violation of the parents' 14th Amendment right to familial association, and the children's 4th Amendment rights, by judicial deception--providing false or misleading information to the court that authorized the removal.  Judicial deception consists of either deliberate omission or affirmative misrepresentation.  A statement can also be
misleading if, although technically true, it has been so wrenched from its context that the judicial officer will not comprehend how it fits into the larger puzzle.  The 9th Circuit remanded the claim to the district court, concluding the statement contained misrepresentations and omissions of fact regarding the parents' alleged treatment of the child with cannabis oil without medical supervision, and that the treatments adversely affected the child's behavior at school.  A reasonable trier of fact could find the misrepresentations material to the judicial decision.  Since California has legalized medical marijuana for children, a reasonable magistrate could not have ordered the children removed merely because the child was receiving medical marijuana.  The teacher denied making the statements attributed to her in the statement of cause, and that the statements were untrue.  Viewing the evidence in the light most favorable to the plaintiffs, the teacher's testimony supports the parents' claim that the social worker mischaracterized the teacher's comments.  There were triable issues of fact on whether the warrant application materially misrepresented information and omitted facts required to prevent the application from being misleading.  The court further ruled that the defendants were not entitled entitled to qualified immunity, because the right to be free from judiclal deception in matters of child custody was clearly established at the time of the events.  The 9th Circuit affirmed judgment on the pleadings as to the plaintiffs' 4th Amendment claim as to the younger child's school interview.  The law did not clearly establish that the schoolhouse interview violated the 4th Amendment.  The 9th Circuit reversed the summary judgment on the plaintiffs' Intentional Infliction of Emotional Distress claim, because it reversed summary judgment on the judicial deception claim.  it also reversed summary judgment on the plaintiffs' Monell claim, because there was evidence from which a jury could find the welfare department's policy governing preparation of warrant applications were insufficient in practice.  The appellate court remanded the claim for additional consideration.  Finally, the court upheld the decision at the trial, finding that the district court did not err by repeating jury instructions to a confused juror.