Government Liability Update

While Familial Relationship Claims of Parent and Child Raise Identical Issues, Ambiguous State Court Verdict Prevents Claim Preclusion

In Hardwick v. County of Orange, published November 18, 2020, the 9th Circuit affirmed a district court's denial of summary adjudication in a plaintiff's favor of a claim for loss of familial association.  County social workers allegedly made misrepresentations to a court that resulted in minors being removed from their mother's custody and put into foster care.  The mother sued the social workers and the county in California state court.  She obtained a verdict against some of the social workers that they had violated her Fourteenth Amendment right to familial relationship, or her right of privacy.  She obtained a verdict against the county based on failure to train.  When one of the minors obtained the age of majority, she sued the social workers and county in federal court, asserting violation of her right to familial association.  She sought summary adjudication against the social workers and county based on claim preclusion from the state court verdict in her mother's favor.  The district court denied summary adjudication, and granted a defense summary judgment motion by the county.  The case against the social workers proceeded to jury trial, where the jury entered a verdict in favor of the social workers held liable in the state action.

The 9th Circuit affirmed the denial of claim preclusion.  Both a parent and a child have a right to familial association under the Constitution.  A parent's right is to custody and companionship, and is governed by the Fourteenth Amendment.  The child's right is to companionship, and loss of it due to removal from custody is governed by the Fourth Amendment.  But the same legal standard applies to evaluating both rights.  But claim preclusion requires that the prior action adjudicate the identical issue.  Since the verdict in the state court case found violation of either the right to familial relationship or the right of privacy, it is unclear whether the jury in the state case found violation of the familial relationship right.  The district court therefore properly rejected claim preclusion.  Further, because the Monell claim against the county was based on alleged violation of the constitutional right, the district court properly rejected claim preclusion against the county.

Alleged Retaliation against Foster Parent for Exercise of First Amendment Rights Violates Clearly-Established Law, but Law Did Not Clearly Establish Alleged Sexual Harassment Violated Equal Protection Clause

In Sampson v. County of Los Angeles, published September 9, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part the dismissal on a Motion to Dismiss of a 42 U.S.C. section 1983 lawsuit against a social worker and his superiors.  The plaintiff alleged that the defendant social worker sexually harassed her while she sought legal guardianship of her niece.  When she complained about the alleged harassment to the social worker's superiors, the social worker and superiors allegedly retaliated against her by failing to assist her in obtaining foster funding, falsely representing that the child's father had unlimited visitation rights (leading to the child's abduction), and pursuing court action to take the child away from the plaintiff.  The plaintiff alleged claims for retaliation in violation of the First Amendment for falsely accusing the plaintiff of abuse and neglect and seeking to remove the child from her custody, and violation of the Equal Protection Clause of the Fourteenth Amendment for the social worker's conduct.  The district court dismissed the claims based on the second prong of qualified immunity:  The law did not clearly establish the rights asserted.

Two judges held that the district court erred in granting qualified immunity on the First Amendment retaliation claim.  They held that earlier Ninth Circuit case law clearly established  in 2015, when the incidents allegedly took place, that the First Amendment prohibits public officials from threatening to remove a child from an individual's custody to chill protected speech out of retaliatory animus for such speech.  That the past case law involved biological parents, rather than a legal guardian, did not matter; case law established that the threat of losing custody would ordinarily chill the free expression of biological parents and legal guardians alike.  Because the district court did not address the first prong of qualified immunity--whether the plaintiff plausibly alleged a First Amendment retaliation claim--the court remanded the issue.

A different two-judge majority affirmed the holding that the law did not clearly establish that the sexual harassment violated the Equal Protection Clause.  The right under the Equal Protection Clause to be free from sexual harassment by public officials in the workplace and school contexts is clearly established by prior 9th Circuit case law.  But the 9th Circuit had never held that the Clause protects private individuals who suffer sexual harassment at the hands of public officials providing them with social services.  The court made it "abundantly clear," however, that, moving forward, state public officials violate equal protection when the sexually harass the people they serve.

Social Worker Did Not Violate Family's Fourteenth Amendment Rights by Sending False Letter about Custody to Court, because No Loss of Custody Occurred

In Dees v. County of San Diego, published May 27, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed a district court's summary judgment ruling, and affirmed in part and reversed in part the court's ruling on post-trial motions.  The defendant social worker took part in an investigation of an alleged impropriety concerning a stepfather and his daughter.  The social worker initially ordered that the stepfather's two stepdaughters be taken out of the stepfather's custody.  A family court then restored custody.  The social worker was ordered to wrap up her investigation.  Instead, the social worker interviewed one of the stepdaughters, who was nine and suffered from cognitive disabilities, at the stepdaughter's school.  The interview lasted five minutes.  The social worker advised the stepdaughter that she could have a school district employee present during the interview, and that the stepdaughter could end the interview at any time.  The stepdaughter did not request an employee be present, and did not terminate the interview.  After the interview, the police told the social worker that their investigation was closed.  The social worker then sent a letter to the family court falsely stating that the stepdaughters had been removed from the custody of their mother.  The family court never acted on the letter.  The mother and stepdaughter sued the social worker and the county, alleging that the letter violated their Fourteenth Amendment right to family association, and that the interview was a seizure of the girl that violated the Fourth Amendment.  The district court entered summary judgment on the Fourteenth Amendment claim.  The Fourth Amendment proceeded to trial, and the jury found that there was no Fourth Amendment seizure.  On the plaintiffs' post-trial motions, the district court granted the plaintiffs judgment as a matter of law on the Fourth Amendment claim.  It alternatively granted new trial.

The appellate panel unanimously affirmed the grant of summary judgment on the Fourteenth Amendment claim.  Ninth Circuit precedent establishes that, to establish a Fourteenth Amendment claim based on a minor being separated from his or her parents, plaintiffs must establish that an actual loss of custody occurred; a threat or investigation is not enough.  Since the family court did not act on the letter, and the mother did not actually lose custody, there was no Fourteenth Amendment violation.  The panel also unanimously ruled that the district court erred in granting judgment as a matter of law.  Because the interview was short, the girl did not ask for the interview to be terminated, and her emotional state after the interview was disputed, there was substantial evidence to support the jury's verdict.  But the majority affirmed the district court's alternative grant of new trial.  It deferred to the district court's ruling that the weight of the evidence was against the jury's decision.  A dissenting judge opined that based on the evidence, the district judge abused the judge's discretion in finding the weight of evidence against the verdict.

School District Did Not Infringe Student's First Amendment or Substantive Due Process Rights by Expelling Him in Response to Private Journal Entry Discussing School Violence

In McNeil v. Sherwood School District, published March 14, 2019, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 case brought by a high school student and his parents.  The student wrote in his personal journal a hit list of students who "must die."  His mother discovered the journal in his room.  She made copies, and sought guidance from a therapist.  The therapist, believing the information triggered his duties as a mandatory reporter, contacted the police.  The police searched the house and confiscated a rifle and ammunition, but found nothing to indicate the student was planning to follow through with the list.  The police did not charge the student.  The police informed the school district.  As required by law, the district informed the parents of students on the list of the list, without identifying the author.  After media inquiries and social media accounts displaying the student's photo, the district informed all parents.  Parents transferred students out of the district, while others had their children skip school.  After a hearing, the district expelled the student for one year for making the list and disrupting the school.  The student sued for violation of his First Amendment rights.  The parents sued for violation of their due process right to educational venue choice.

The 9th Circuit ruled that the district had not violated the student's First Amendment rights.  When determining whether a school’s regulation of a student’s off-campus speech is constitutional, a court must consider all of the relevant circumstances.  The student's lack of intent to communicate the speech to any third party--such as when the student writes in a personal journal--is a relevant consideration, but it is not dispositive.  Here, the lack of intent to communicate the threat was offset by the fact his speech created an identifiable, credible threat of school violence.  He lived close to campus, and had weapons and ammunition.  The speech bore a significant nexus to the school.  The school district could therefore take disciplinary action.  Because his continued presence at campus would cause disruption, the discipline imposed was reasonable and not punitive.  The court also rejected the due process challenge to the expulsion.  That right entitled the parents to enroll the student at the high school.  Once there, the school had the power to administer discipline.  That included expelling the student from campus and supplying alternative, online instruction of him.

Trial Court Did Not Abuse Discretion in Limiting Mini-Openings and Declining Challenges for Cause in Student Supervision Case

In Alcazar v. Los Angeles Unified School Dist., ordered published November 15, 2018, the Second District Court of Appeal, Division 1 affirmed judgment for the defendant school district after a jury trial.  The plaintiff was a middle-school student with learning disabilities who fell and was injured after swinging on a tree branch that broke.  The plaintiff alleged the school failed to properly supervise him.  During voir dire, the trial court initially allowed the parties to give mini opening statements.  During questioning of the first panel, some jurors expressed pre-judgment of the case based on the details given during the mini-openings.  The court then ordered that for subsequent panels the parties could not give mini-openings; instead, the court would read the statement of the case to which the parties had agreed.  The plaintiff's counsel was permitted to give several details of the case in his questioning of jurors.  Two jurors expressed uncertainty on whether they could be fair, but ultimately said they could.  The court declined the plaintiff's challenge to the jurors for cause.  The jury entered a defense verdict.  The plaintiff alleged that the court had exceeded its discretion under Code of Civil Procedure section 222.5 in limiting the use of mini-openings; and that the court abused its discretion in denying the challenges for cause.

The appellate court affirmed the trial court's exercise of its discretion.  Section 222.5, as it existed at the time of the trial, preserved the trial court's discretion to disallow mini-openings depending on the circumstances.  The circumstances here included jurors stating they had prejudged the case based on the mini-openings given.  The court has discretion to deny a challenge for cause, unless the juror expresses views indicative of an unalterable preference in favor of one side.  Since both jurors here stated they could keep an open mind, the court had discretion to deny the challenge.

Officers Violated Fourth Amendment and Is Liable under State Law for Arresting Middle-School Students to Teach Them a Lesson

In Scott v. County of San Bernardino, published September 10, 2018, the 9th Circuit affirmed summary judgment granted to the plaintiffs, three middle-school students.  The three students, 12- and 13-year-old girls, went to school officials to talk about another student's bullying and threats toward them.  A school administrator asked one of the defendants, a deputy who was a school security officer, to come to the campus to talk to the girls and the girl they complained about.  He intended to mediate the conflict.  WIthin a few minutes, however, he decided that the girls were being disrespectful.  He decided to arrest them, to prove that he "wasn't playing around," "to prove a point" and "to make [them] mature a lot faster."  He and another deputy defendant handcuffed the girls.  The allege aggressor was released to her father on campus.  The others were driven in a police vehicle to  the sheriff's department, where they were interviewed and released to their parents.  No charges were filed.  At trial, the district court granted the plaintiffs summary judgment both on their 42 U.S.C. § 1983 claim and their state law false arrest claim.

The 9th Circuit agreed that the deputies were liable.  New Jersey v. TLO ruled that the Fourth Amendment protects students, subject to a "special needs" exception under which warrantless searches do not violate the Fourth Amendment if the actions are justified at their inception and reasonably related in scope to the circumstances that justified the actions.  The arrests violated both parts of the test.  The actions were not justified at their inception.  The deputies had no specific information any of the arrested girls had done anything.  Further, under the special needs exception, the officers' subjective motivation may be considered.  The deputies' stated reasons for the arrest did not provide justification for arrest.  Further, handcuffing and arresting middle-school girls was an unreasonable response to the school's need.  Because the law was clear that the deputies' arrest violated the Fourth Amendment, they were not entitled to qualified immunity.  Under state law, none of the statutes under which the deputies justified the arrest applied.  The district court therefore properly granted summary judgment on the state law false arrest ground as well.

Although the Government Claims Act Exempts Childhood Sexual Molestation Causes of Action from the Claim Presentation Requirement, It Permits Local Public Entities to Impose Their Own Claim Requirements (No Longer Good Law)

Update:  On July 17, 2019, the California Supreme Court transferred this decision to the Court of Appeal with directions to vacate its decision and reconsider the cause in light of subsequent legislation amending Government Code sections 905 and 935 to bar local entities from imposing claim requirements on childhood sexual abuse claims.  The Court of Appeal then issued an unpublished decision denying the defendant district's writ petition.  The decision summarized below is no longer good law.

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In Big Oak Flat-Groveland Unified School District v. Superior Court (Doe), ordered published March 16, 2018, the Fifth District Court of Appeal issued a writ of mandate directing the trial court to sustain the defendant school district's demurrer to the plaintiff's complaint.  The minor plaintiff alleged that the defendant school district had negligently failed to prevent a teacher's alleged molestation of her between 2013 and 2014.  The plaintiff filed suit against the district in 2015.  She did not present a claim for damages.  The complaint alleged that under Government Code section 905, subdivision (m), her claim for childhood sexual abuse was exempt from the claim presentation requirement in the Government Claims Act.  The district demurred on the ground that Government Code section 935 authorized local public entities to impose their own claim requirements on claims exempted by Government Code section 905 from the Government Claims Act's claim-presentation requirements.  The trial court overruled the demurrer, on the ground that the Legislature's intent in enacting section 905(m) was to exempt childhood molestation claims from the claim-presentation requirements.

The appellate court held that Government Code section 935 permitted the district to enact its own claim-presentation requirements for claims exempted under section 905; and that because the plaintiff failed to satisfy those requirements by presenting a timely claim, her suit against the district was barred.  Government Code sections 905 and 935 are unambiguous and coordinated:  If a claim is listed in section 905, the Government Claims Act's claim-presentation requirements do not apply; but under section 935, claims against a local public entity exempted by section 905 "and which are not governed by any other statutes or regulations expressly relating thereto" shall be governed by the claim procedure prescribed in any charter, ordinance, or regulation the local public entity adopts.  The procedure may include a claim-presentation procedure, so long as the time for presenting the claim is not shorter than that prescribed in the Government Claims Act.  Multiple cases have held that these provisions are unambiguous, and permit local entities to impose their claim-presentation requirements on causes of action otherwise exempt under section 905.  Because the statutes are not ambiguous, there is no need to consider the Legislature's intent.  But if that intent is considered, the court ruled, it does not change the result.  The Legislature passed section 905(m) with the intent that childhood sexual molestation claims be exempted from the claim-presentation requirement.  But the Legislature did not address or consider section 935, or provide that section 905(m) was exempt from it.  The plaintiff argued that Code of Civil Procedure section 340.1, which governs statutes of limitation for childhood sexual molestation claims, was an "other statute" governing under section 935, since section 905 refers to it.  The court rejected this argument, interpreting the "other statute" language to refer to another statute concerning claims presentation.  A statute of limitation does not govern claims presentation.  The appellate court commented that if the Legislature's intent was to exempt childhood sexual molestation claims from local entities' claim-presentation requirements, "it is in the Legislature's province, not ours, to address the issue."

Social Worker Violates Clearly-Established Law by Removing Child from Parent without Warrant Based on Parent's Lack of Insurance to Pay for Inpatient Mental Treatment

In Keates v. Koile, published March 6, 2018, the 9th Circuit Court of Appeals reversed in part a district court's dismissal of a mother's and daughter's suit against multiple Arizona child protective services employees.  The complaint alleged that the mother took the 13-year-old daughter to a clinic, where she stated she had been sad, had contemplated suicide in the past, but was not currently experiencing suicidal ideation. The clinic referred the mother to the emergency room of a hospital. The hospital rejected the mother's plans for caring for the daughter at home, and decided to send her to a mental hospital.  The mother initially refused to provide contact information, because she did not have health insurance and was concerned that she was going to be billed for expensive inhouse treatment.  Someone at the hospital called CPS and reported that the minor was suffering severe depression and had attempted suicide, and that the mother could not formulate a safety plan.  The child was kept overnight.  A defendant social worker interviewed the minor without the mother present.  The minor told the social worker her only complaint about her mother was that she yelled, screamed, and cussed.  The minor denied having attempted suicide.  The social worker then issued a temporary custody notice, allowing him to take the child away from her mother and put her into CPS custody.  The daughter was strapped to a gurney, and delivered by ambulance to a mental hospital.  The intake nurse found the daughter's suicide risk to be low.  The social worker concluded that the mother could not care for the daughter.  CPS filed a dependency petition.  When the daughter was discharged, she was put in a foster home and not reunited with her mother for four months.  The district court dismissed the complaint because it concluded that based on the facts alleged the defendants--social workers involved in the case--were entitled to qualified immunity.

The 9th Circuit ruled that the social worker who issued the temporary custody notice and recommended the dependency petition was not entitled to qualified immunity.  It is clearly established that the rights of parents and children to familial association under the Fourteenth, First, and Fourth Amendments are violated if a state official removes children from their parents without their consent or a court order, unless, after reasonable investigation, the available information establishes reasonable cause to believe the child is in imminent danger of serious bodily injury; and the scope, degree, and duration are reasonably necessary to avert the specific injury at issue.  Detaining a minor and removing her from her mother's custody merely because the mother does not have health insurance and is reluctant to pay for inpatient treatment is not an emergency that permits removing a child without a warrant.  The court upheld dismissal of the complaint against the other CPS workers named, because the allegations of their involvement did not state a plausible case that they were sufficiently involved to render them liable.

Absent Imminent Danger, Social Workers Not Entitled to Qualified Immunity for Removing Children from Home without Court Order or Warrant

In Demaree v. Pederson, published January 23, 2018, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment granted to two Child Protective Services social workers in a 42 U.S.C. section 1983 case.  One of the plaintiffs dropped off photos at a store to be printed.  A worker noted that there were nude photos of children, and contacted the police.  Police interviewed the parents, who stated they had photographed their daughters, ages 1-1/2 to 5, nude as keepsakes and would not share them.  The police took the daughters to medical and physical exams, which disclosed no abuse.  The police obtained a search warrant and searched the plaintiffs' house.  A defendant social worker spoke with one of the investigating officers, who told the worker that he expected charges would be brought against the parents.  The social worker consulted with her supervisor (another defendant) and decided to take the children into emergency temporary custody without obtaining a court order or warrant.  The parents were never arrested or charged with a crime, and the children were returned to them after a month.  The district court granted the defendants summary judgment based on qualified immunity.

The 9th Circuit majority determined that, viewing the facts in the light most favorable to the plaintiffs, the defendants were not entitled to qualified immunity.  Because the social workers did not have reasonable cause to believe the children were at imminent risk of serious bodily injury or molestation, taking the children violated the parents' and children's constitutional right under the Fourth Amendment to live together without governmental interference.  The Fourth Amendment requires government officials to obtain prior judicial authorization before removing a child from a parent, unless, in an emergency, officials have reasonable cause to believe that the child is likely to experience serious bodily harm in the time required to obtain a warrant.  No facts showed such a danger here.  Further, the law clearly established that the social workers' actions would violate the Fourth Amendment.  Ninth Circuit case law published at the time of the incident established that under worse circumstances than those here, removing a child from a parent's custody without court authorization violated the Fourth Amendment.  The law established beyond debate that the children could not be removed absent evidence of imminent danger to the child of serious bodily injury, and that the facts here did not meet the standard.

One judge dissented from denial of qualified immunity, on the ground that the incident happened on the Saturday of a holiday weekend, there were allegations of serious abuse, and the law was not clearly established that under those circumstances removing the children without court authorization would violate the Constitution.

Childhood Molestation Statute of Limitations Does Not Create Accrual Date for Purposes of Government Claims Act

In Rubenstein v. Doe 1, published August 28, 2017, the California Supreme Court reversed a Court of Appeal decision that the plaintiff had complied with the Government Claims Act deadline to present a timely claim. The plaintiff alleged that in 1993-1994, when she was a high school student, her coach, an employee of the defendant district, sexually molested her.  She presented a claim for damages to the district in 2012, when she was 34.  She alleged that latent memories of the sexual abuse resurfaced in 2012.  She contended that the claim was timely.  The Government Claims Act requires that a personal injury claim for damages be presented to the defendant public entity no later than six months after accrual. Under Government Code section 901, the date of accrual for purposes of the Government Claims Act is the accrual date that would pertain under the statute of limitations applicable to a dispute between private litigants.  The plaintiff contended that Code of Civil Procedure section 340.1 creates the date of accrual for claims alleging failure to prevent childhood molestation.  Section 340.1, as it existed at the time of the molestation and as subsequently amended between 1990 and 2002, expanded the statute of limitations for childhood sexual molestation. It extended the deadline to sue to the plaintiff's 26th birthday; then, in 2002 while the plaintiff was still under 26, it allowed suits after the 26th birthday if the defendant was on notice of unlawful sexual conduct by an employee and failed to take reasonable steps to prevent the misconduct.

The Supreme Court majority concluded that section 340.1 did not set the accrual date for childhood sexual molestation claims. Instead, it tolled the statute of limitation for suing for injuries from molestation.  That does not affect the time to present a claim.  The cause of action accrues at the time the abuse occurs.  The court based this conclusion on the wording of the statute; on case law interpreting similar statutes; on the policy behind the claim statutes, in preventing late claims that endanger public entity fiscal planning and result in difficulties in investigation or preventing future harm; and on the 2008 passage of Government Code section 905, subdivision (m), which eliminates the claim requirement for childhood molestation claims, but only for conduct occurring after 2009.  The limitation on the amendment shows a legislative intention to limit public entity exposure for molestation claims.  The court also rejected the argument that section 340.1 provided a delayed discovery standard of accrual for molestation claims.  The court disapproved the decision in K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229.

Justice Werdegar dissented.  She opined that the majority's decision immunized public entities from liability for pre-2009 molestation claims.