McConnell v. Lassen County, California

Full title: AMY McCONNELL and AMY McCONNELL on behalf of her four minor children…

Court: United States District Court, E.D. California

Date published: Jun 29, 2007

NO. CIV. S-05-0909 FCD DAD (E.D. Cal. Jun. 29, 2007)

Opinion

NO. CIV. S-05-0909 FCD DAD.

June 29, 2007

MEMORANDUM AND ORDER

FRANK DAMRELL JR., District Judge

This matter comes before the court on defendants Lassen County (the "County"), Terry Chapman ("T. Chapman"), Loel Griffith ("Griffith"), Jack Hanson ("Hanson"), Brian Dahle ("Dahle"), Lloyd Keefer ("Keefer"), Bob Pyle ("Pyle"), James Chapman ("J. Chapman"), and Environmental Alternative's ("EA") motions¹ for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below,² defendants' motions are GRANTED in part and DENIED in part.

1 Defendants filed four separate motions for summary judgment. However, the court addresses all motions for summary judgment herein.

2 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. See E.D. Cal. L.R. 78-230(h).

BACKGROUND ³

3 Unless otherwise noted, the facts herein are undisputed. (See Pls.' Am. Objection to Def. Board's Stmt. of Undisp. Facts ("BUF"), filed May 22, 2007; Pls.' Am. Objection to Def. Griffith's Stmt. of Undisp. Facts ("GUF"), filed May 23, 2007; Pls.' Am. Objection to Def. T. Chapman and Lassen County's Stmt. of Undisp. Facts ("TUF"), filed May 22, 2007; Def.'s Reply to Pls.' Am. Objection to Def. EA's Stmt. of Undisp. Facts ("EUF"), filed June 1, 2007). Where the facts are in dispute, the court recounts plaintiffs' version of the facts. Plaintiffs have filed documents purporting to set forth undisputed facts in support of her oppositions. The court construes these filings as statements of disputed facts pursuant to Local Rule 56-260(b). (See Pls.' Am. Stmt. of Undisp. Facts in Supp. of Pls.' Objection to Def. Board's Mot. ("BDF"), filed May 22, 2007; Pls.' Stmt. of Undisp. Facts in Supp. of Pls.' Objection to Def. T. Chapman and Lassen County's Mot. ("TDF"), filed May 21, 2007; Pls.' Stmt. of Undisp. Facts in Supp. of Pls.' Objection to Def. EA's Mot. ("EDF"), filed May 22, 2007).
Plaintiffs assert that many facts are disputed, but their proffered evidence does not contradict defendants' assertions. Therefore, where plaintiffs fail to point to any contrary evidence or direct contradictions in defendants' own statements, the court will not consider such facts to be in dispute.
Defendants object to various pieces of evidence that plaintiffs present in support of their opposition. Much of the evidence that defendants object to is immaterial to the court's analysis of the summary judgment motion. To the extent that the evidence is relevant, the court will address those objections infra.

This case arises out of the placement of the minor plaintiffs A.B., A.B., J.M., and J.M. in protective custody by Lassen County Child Protective Services ("CPS") and the subsequent alleged sexual abuse of female minor plaintiffs J.M. and A.B. by Marion ("Hank") Coy while in foster care at the Coy home in Doyle, California. On May 5, 2003, the three youngest of plaintiff Amy McConnell's ("McConnell") four minor children, ages six, four, and nine months, were left alone at home without any supervision. (BUF ¶ 1; GUF ¶ 2). McConnell left the house to go to the propane company because she believed that there was a propane leak in her house due to her extremely high gas bill and the faint smell of gas. (TUF ¶ 22; Dep. of Amy McConnell ("McConnell Dep.") at 157:3-158:7). McConnell left the children with her husband, James E. McConnell, who subsequently left the house to make a telephone call. (TUF ¶ 22). McConnell's father, Ronald Durand ("Durand"), entered the McConnell's residence and found the three children by themselves. (BUF ¶ 2). Durand immediately took the children to the offices of Lassen County CPS. (BUF ¶ 3). Durand told T. Chapman that McConnell leaving the children home alone was an ongoing problem and that he had warned his daughter that he would take to the children to CPS if she continued to leave them unattended. (TUF ¶ 8).⁴ Durand also told T. Chapman that he was afraid for the children's safety. (TUF ¶ 8). T. Chapman attempted to contact James and Amy McConnell by telephone four to five times, but could not reach them. (TUF ¶ 10). James and Amy McConnell came to the CPS office about one hour after Durand had dropped the children off at CPS. (TUF ¶ 10).

4 Plaintiffs object to this evidence as inadmissible hearsay. However, this evidence is not offered for the truth of the matter asserted, but rather, to demonstrate knowledge and the effect on the listener, defendant T. Chapman. As such, this evidence is not hearsay. To the extent that plaintiffs object to similar statements and evidence, such objections are OVERRULED.

T. Chapman observed the children at CPS while Durand was present. (TUF ¶ 11). He observed that they were dirty and wearing dirty clothes; the nine month old child was fussy and whining. (TUF ¶ 11). T. Chapman also observed that after the children were left alone at CPS, they showed no signs of anxiety. (TUF ¶ 13). T. Chapman believed that the lack of anxiety around strangers indicated a potential problem in the home of the children. (TUF ¶ 14). Female plaintiff A.B. informed T. Chapman that both her mother and father had left the children on the morning of May 5, 2003, stating that they would be right back. (TUF ¶ 20). Both female minor plaintiffs, A.B. and J.M., told T. Chapman that they had been told not to open the door for anyone when left alone and to take the baby into the backroom so that he could not be heard crying. (TUF ¶ 19). Female plaintiff A.B. also told T. Chapman that her mother had told her that "what goes on in the house, stays in the house." (TUF ¶ 16). Female plaintiff J.M. reported to T. Chapman that her parents always left her alone and that she was very afraid during these occasions. (TUF ¶ 21).

T. Chapman interview McConnell, who informed him that she believed there was a propane leak in the house and that she had left that morning to go to the propane company. (Decl. of Terry Chapman in Supp. of Defs.' Mot. for Summ. J. ("T. Chapman Decl."), filed May 8, 2007, ¶ 7). Subsequently, T. Chapman interviewed James McConnell, who confirmed the existence of a propane leak. (Id.) T. Chapman also conducted a history search in the child welfare computer system for any prior history of interventions by other child protective service agencies throughout the state. (TUF ¶ 32).⁵ The search showed that the McConnell family had prior referrals. (TUF ¶ 32). The Kings County records indicated that James E. McConnell had violated his probation and been sent to prison for domestic violence. (TUF ¶ 32).

5 Plaintiffs "dispute" this fact, asserting that the computer search was conducted after the detention of the minor plaintiffs. However, plaintiffs fail to cite any evidence supporting this proposition. Further, defendant T. Chapman testified at his deposition that he conducted the computer search prior to the detention. (Dep. of Terry Chapman ("T. Chapman Dep.") at 62:22-63:6).

Defendant T. Chapman went to the male minor plaintiff A.B.'s school and brought him to the CPS office for an interview. (TUF ¶ 15). While at the school, the principal showed T. Chapman minor plaintiffs' A.B. and A.B.'s attendance records, which indicated numerous unexplained absences; male plaintiff A.B. had been absent 10 days and tardy 15 days between September 2002 and April 2003, and female plaintiff A.B. had been absent 25 days and tardy 7 days in the same general time frame. (TUF ¶ 15). The principal expressed concern to defendant T. Chapman about this fact. (TUF ¶ 15).

Officer Stevenson-Hibbs of the Susanville Police Department interviewed male plaintiff A.B., who was seven years old at the time. (TUF ¶¶ 12, 23). T. Chapman was present during the interview. (Decl. of Officer Amber Stevenson-Hibbs ("Stevenson-Hibbs Decl."), filed May 8, 2007, ¶ 3). The officer asked A.B. whether he knew the difference between the truth and a lie, and plaintiff indicated that he did. (TUF ¶ 24). A.B. told Stevenson-Hibbs that his mother left him alone with his brother and sisters almost every day and that he was required to feed and bathe them. (TUF ¶ 25). He stated that he did not know what to do when left alone when his nine month old brother became fussy and began to cry. (TUF ¶ 25). A.B. also told Stevenson-Hibbs that his mother and father fought a lot. (TUF ¶ 26). He relayed that one day when his mother was driving, she got into an argument with James McConnell. (TUF ¶ 26). James McConnell grabbed the steering wheel, and the car in which they were all riding almost crashed. (TUF ¶ 26). A.B. also informed the officer that James McConnell had dumped a bucket of water over his head as punishment and that James McConnell had grabbed him by the neck and threw him against the wall. (TUF ¶ 27). A.B. stated that James McConnell had shown him a drill and told him he was going to drill him to the wall. (TUF ¶ 28). A.B. reported that he had been spanked by James McConnell and that the spanking had left bruises. (TUF ¶ 29). Finally, A.B. reported that James McConnell had struck him in the face on May 4, 2003. (TUF ¶ 30). Stevenson-Hibbs observed a cut by A.B.'s eye. (TUF ¶ 30). A.B. stated that James McConnell wore a silver ring, which had cut his face when he was slapped. (TUF ¶ 30). A.B. stated that plaintiff McConnell rarely hit him. (Stevenson-Hibbs Decl. ¶ 6).⁶

6 Plaintiffs "dispute" facts relating to statements made by male plaintiff A.B. to Stevenson-Hibbs and T. Chapman, asserting that A.B. later admitted that many things he said were an exaggeration. (TUF ¶¶ 26-31). However, this later explanation does not does not contradict the asserted facts that this was the information conveyed at the time the minor plaintiffs were brought into Lassen County CPS. Moreover, plaintiffs cite generally to male plaintiff A.B.'s deposition testimony without providing any specific page or line numbers. Such citation fails to comply with Local Rule 56-260(b). Further, the court's independent review of male plaintiff A.B.'s deposition transcript does not reveal that plaintiff admitted to exaggerating in the statements made to Stevenson-Hibbs and T. Chapman.

On May 5, 2003, at approximately 1:15 p.m., plaintiffs A.B., A.B., J.M., and J.M. were detained and placed into protective custody. (GUF ¶ 1; TUF ¶ 34). When Durand had first arrived at CPS, T. Chapman asked him whether he and his wife, Sue Durand, the biological grandparents of the minor plaintiffs, would be willing to take the kids. (TUF ¶ 37). Durand responded that he didn't believe that they could handle all four children because of his wife's illness. (TUF ¶ 37). Subsequently, after Sue Durand arrived at CPS, Ronald and Sue Durand offered to take the kids. (TDF ¶ 13; Dep. of Ronald Durand ("R. Durand Dep.") at 42:20-25). T. Chapman told Durand that they could not have the children because of the closeness of the relationship between the Durands and the McConnells. (R. Durand Dep. at 43:5-24). McConnell asserts that she told T. Chapman that James McConnell would leave the household until CPS approved him to return. (Am. Decl. of Amy McConnell ("McConnell Dep."), filed June 15, 2007).⁷ T. Chapman cannot recall that James McConnell offered to leave the family residence. (TUF ¶ 54). However, based upon the information he had received regarding prior and current issues of domestic violence involving Amy McConnell and male plaintiff A.B. and that Amy McConnell continued to stay with her husband, T. Chapman believes that this would not have been a reasonable alternative to detention because there was no certainty that James McConnell would stay away from the home. (TUF ¶ 54).⁸ T. Chapman also felt that the McConnells would leave the children alone in the home again, where there was the danger of an ongoing gas leak. (TUF ¶ 55). T. Chapman and McConnell discussed the possibility of placing the children with her brother in Alaska, but both agreed that the location would prevent visitation and hinder the reunification process. (TUF ¶ 38). T. Chapman also discussed with McConnell the possibility of placing the children with her aunt in Yuba City, but both agreed that the location was too distant to foster the goals of visitation and reunification and McConnell did not feel her aunt could properly care for her children. (TUF ¶ 41). T. Chapman believed the optimal placement was a home in Lassen County where the children could remain together and be close enough to visit with one or both parents. (TUF ¶ 43).⁹

7 Defendants object to the Declaration of Amy McConnell, filed May 22, 2007, on the grounds that it was submitted without the assertion that it was made under penalty of perjury. On June 15, 2007, plaintiffs filed an amended declaration that was substantively unchanged, but included the assertion that it was made under penalty of perjury. Defendants object to the court considering this belatedly filed amended declaration. Because plaintiff McConnell's declaration is substantively unmodified from the declaration submitted in support of her opposition, defendants will not be prejudiced, and their objection is overruled.

8 Plaintiffs "dispute" this fact on the basis that "[t]his is a common resolution of domestic abuse." Plaintiffs cite no evidence in support of this assertion, nor is it clear how this statement raises a triable issue regarding defendants' evidence.

9 Plaintiffs "dispute" this fact, asserting that T. Chapman completely failed to consider relative placement. However, plaintiffs' admission that, at the very least, McConnell and T. Chapman considered placement with McConnell's brother belies this general and unsupported assertion.

Lassen County does not license foster homes, but uses the services of a Foster Family Agency. (TUF ¶ 44). T. Chapman called two of these agencies, looking for a home that could care for all four children. (TUF ¶ 44). He chose the Coy home in Doyle, which had been certified through defendant EA. (TUF ¶ 45).

On May 8, 2003, the children were detained by order of a Lassen County Superior Judge. (GUF ¶ 3). Plaintiff McConnell and her husband James McConnell were represented by counsel, and counsel was appointed for the children. (TDF ¶ 32). McConnell asserts that she was not allowed to obtain separate counsel and that the obvious conflict between her and her husband was ignored at that time by the court and counsel. (TUF ¶ 48). On May 19, 2003, at the jurisdictional hearing, McConnell requested separate counsel and the court appointed McConnell her own attorney. (GUF ¶ 4; TUF ¶ 50). McConnell contends that she was never given an opportunity to confer with her counsel prior to the hearing, and therefore, the appointment of counsel was ineffective. (GUF ¶ 4). On June 23, 2003, McConnell pled no contest to one count of child endangerment, a violation of Welfare and Institutions Code § 300(b). (GUF ¶ 5). McConnell asserts that she was coerced into the plea. (GUF ¶ 5). On August 12, 2003, James McConnell pled no contest to violations of Welfare and Institutions Code §§ 300(a) and 300(b). (TUF ¶ 52). Jurisdiction was terminated on December 6, 2004. (TUF ¶ 53).

On August 12, 2003, T. Chapman prepared a case plan. (TUF ¶ 57). McConnell and her husband signed the plan, acknowledging that they had participated in the plan's development and that they agreed to participate in the services outlined in the plan. (TUF ¶ 57). McConnell contends that she was coerced into signing the case plan because CPS threatened that if she did not sign the case plan, she would never get her children back in her custody. (TUF ¶ 57).

Plaintiffs A.B., A.B., J.M., and J.M. were placed at the home of defendant Barbara Coy and Hank Coy¹⁰ on or about May 5, 2003 until September 29, 2003. (GUF ¶ 6). Defendant EA certified the family home operated by the Coys from June 1, 1995 until November 11, 2003. (EUF ¶ 5). EA is a non-profit corporation and foster family agency that recruits and certifies foster family homes in Lassen County, conducts background checks of prospective foster parents and verifies that homes are safe and acceptable for the placement of foster children. (EUF ¶¶ 1, 3-4, 13). EA conducts training of its prospective foster parents regarding how they should properly discharge their duties as foster parents and provides professional support to foster parents. (EUF ¶¶ 5, 12). EA also conducts visits to foster homes to ensure that the needs of the foster parents and the foster children are met and to ensure that continued placement in a particular home is in the best interests of the foster parents and the foster children. (EUF ¶ 15). However, foster family agencies such as EA do not provide daily care for foster children. (EUF ¶ 11). The daily care and supervision of foster children, such as the minor plaintiffs, is provided by foster parents. (EUF ¶ 12).

10 On May 14, 2007, the court filed a memorandum and order, granting defendant Barbara Coy's motion for summary judgment as to plaintiffs' sole claim against her for negligence. (Mem. Order, Docket # 146, filed May 14, 2007). Hank Coy was not named as a defendant in this action.

The Coys had approximately 17 foster children in their home during their tenure as foster parents. (EUF ¶ 63).¹¹ EA's certification of the Coys as foster parents included a criminal background check of both Barbara and Hank Coy; prior to Hank Coy's conviction for his conduct involving female plaintiff J.M., neither of the Coys had ever been convicted of a felony. (EUF ¶¶ 64-65). In the year prior to her husband's arrest, Barbara Coy did not observe any conduct or behavior by her husband that caused her to think that Hank Coy could endanger the safety of the children. (EUF ¶ 66). Nor did she have any reason to believe that her husband would engage in inappropriate sexual acts toward a child. (EUF ¶ 67). None of the three oldest minor plaintiffs ever told Barbara Coy that they did not want to be left alone with Hank Coy or that he touched them in a way they did not like. (EUF ¶ 72).¹² Until the time that her husband admitted to sexually molesting female plaintiff J.M. on or about September 28, 2003, Barbara Coy never told anyone at EA or CPS that she thought Hank Coy might be engaging in inappropriate sexual activity toward any child. (EUF ¶ 68). Nor did Barbara Coy inform EA that she thought her husband was developing early symptoms of Alzheimer's disease. (EUF ¶ 73). Plaintiffs are not aware of any evidence that EA had knowledge of the propensity of Hank Coy to engage in acts of sexual molestation or abuse prior to the time that the minor plaintiffs were placed in the Coy home. (EUF ¶ 78).

11 Plaintiffs "dispute" defendant's facts that are based upon defendant Coy's deposition testimony and declaration on the grounds that such statements lack credibility. However, plaintiffs cannot sufficiently raise a triable issue of fact simply by raising issues regarding the credibility of defendant's evidence. See Nat'l Union Fire. Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983).

12 Plaintiffs "dispute" defendant's facts that are based upon defendant Coy's deposition testimony and declaration on the grounds that such statements lack credibility. However, plaintiffs cannot sufficiently raise a triable issue of fact simply by raising issues regarding the credibility of defendant's evidence. See Nat'l Union Fire. Ins. Co., 701 F.2d at 97.

The EA social worker assigned to the Coy foster family during the time that the minor plaintiffs resided there was Judie Oliviera ("Oliviera"). (EUF ¶ 23). Oliviera received a bachelor's degree in child development and social work from Humboldt University in June 1989. (EUF ¶ 29). From 1989 to 2001, Oliviera worked as a social worker for Lassen County CPS. (EUF ¶ 31). She commenced her employment with EA in 2001. (EUF ¶ 32). On May 7, 2003, Oliviera prepared Needs and Services Plans for each of the four children. (EUF ¶ 26). Oliviera documented ten visits and at least six telephone calls to the Coy foster family home during the period of May 5, 2003 to September 29, 2003, as part of her duties. (EUF ¶ 24).

While Oliviera worked at EA, she looked for behaviors of a child to determine whether that child was molested, such as whether the child was overprotective or withdrawn. (EUF ¶ 37). Oliviera observed the McConnell children "act out" prior to being informed that the female plaintiff J.M. had been molested, but she did not believe the behavior was evidence of molestation occurring in the Coy home. (EUF ¶ 38). Specifically, Barbara Coy told Oliviera that J.M. had kicked Hank Coy. (EUF ¶ 41). Oliviera told Coy that this behavior sounded like symptoms of child molestation and that she thought the children had probably been molested before they were placed in foster care. (Dep. of Barbara Coy ("Coy Dep.") at 99:8-100:11). In response, Oliviera went to the Coy home, observed the children, and talked to the children. (EUF ¶ 42). Oliviera believed that J.M. struck Hank Coy because she had been suspended from school because of her behavior and was taking her frustration out on the foster parent. (EUF ¶ 46). Oliviera did not observe anything which caused her to believe that any of the minor plaintiffs were being molested at the Coy home. (EUF ¶ 47). Oliviera spoke to T. Chapman about J.M.'s behavior. They discussed that when children start visiting with their biological parents and then return to their foster parent, children may begin to act out, no matter how good the foster parent is. (EUF ¶ 45).

On or about September 29, 2003, Hank Coy confessed that he molested female plaintiff J.M. (See EUF ¶ 27). Hank Coy was arrested for the sexual abuse of J.M. and is currently incarcerated on these charges. (See Mem. Order, Docket # 146, filed May 14, 2007, at 4). Female plaintiff A.B. also asserts that Hank Coy molested her. (Dep. of female plaintiff A.B. ("F.A.B. Dep.") at 52:3-5).

On September 29, 2003, defendant Griffith became the CPS social worker for McConnell and the minor plaintiffs. (GUF ¶ 9). Prior to this, Griffith had no involvement in plaintiffs' CPS case. (GUF ¶ 11). Upon assignment of the case, Griffith reviewed the CPS file, which included the Case Plan signed by McConnell. (GUF ¶¶ 12-13). On September 29, 2003, Griffith placed the children in the home of their maternal grandparents, the Durands. (GUF ¶ 14). She remained the social worker assigned to the McConnell family until she was transferred to another department on February 15, 2004. (GUF ¶ 15). While the minor plaintiffs were at the Durand home, Griffith documented that she saw the children in person on sixteen separate occasions, and she spoke to the children and the Durands regularly. (GUF ¶¶ 16-17). Griffith filed one court report while she was plaintiffs' social worker, a Six-Months Status Review Report filed on January 5, 2004. (GUF ¶ 18).

Griffith also had regular contact with McConnell. (GUF ¶ 19). She was kept apprised of McConnell's progress in completing her Case Plan through correspondence with and telephone calls from staff from Lassen County Alcohol and Drug and Lassen County Mental Health. (GUF ¶ 20). The completion of the responsibilities outlined in the Case Plan determined whether McConnell would be eligible to regain custody of her children. (GUF ¶ 21). Griffith asserts that on several occasions, McConnell failed to attend her children's mental health appointments or school events after promising them that she would attend. (GUF ¶ 24). Griffith asserts that McConnell also missed some of her scheduled phone and in-person visits with her children. (GUF ¶ 25). Further, Griffith contends that McConnell frequently chose not to attend her Drug and Alcohol classes and mental health appointments while Griffith was her social worker. (GUF ¶ 26). McConnell maintains that she only missed appointments if she was at work and couldn't leave or if CPS didn't give her notice of a last minute visit. (McConnell Decl.).

On November 10, 2005, plaintiffs filed their Second Amended Complaint, the operative pleading in this matter. Plaintiffs bring claims under 42 U.S.C. § 1983 for violations for their Fourth and Fourteenth Amendment rights as well as state law claims for intentional infliction of emotional distress, negligence, and breach of contract.

STANDARD

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,id. at 251-52.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 289. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'"Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356.

ANALYSIS

I. Defendant Board of Supervisors

Plaintiffs bring claims under 42 U.S.C. § 1983 against the individual members of the Lassen County Board of Supervisors, defendants Hanson, Dahle, Keefer, Pyle, and J. Chapman (collectively, the "Board defendants"), in their personal capacities¹³ for alleged violations of plaintiffs' Fourth and Fourteenth Amendment rights.¹⁴ Plaintiffs assert that the Board defendants had an official policy of deliberate indifference to the constitutional rights of person whose children were taken into custody by Child Protective Services. (Pls.' Am. Opp'n to Def. Board's Mot. for Summ. J., filed May 22, 2007, at 3). Specifically, plaintiffs content that the Board defendants "involved themselves in the affirmative rejection of the recommendations of the Grand Jury and their refusal to set in place those actions that would result in the compliance of the CPS directly caused" plaintiffs' injuries. (Id. at 4). The Board defendants assert that they are entitled to absolute legislative immunity for their actions.

It is well settled that "state and regional legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities." Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998) (finding that the defendants were absolutely immune from suit where the alleged unlawful conduct included voting for an ordinance, introducing a budget, and signing an ordinance into law). However, "[a]bsolute immunity applies only when legislators act in their legislative capacities, not in their administrative or executive capacities." Chateaubriand v. Gaspard, 97 F.3d 1218, 1220 (9th Cir. 1996). "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Kaahumanu v. County of Maui, 315 F.3d 1215, 1219 (9th Cir. 2003).

The Ninth Circuit has set out a four factor analysis for determining whether an act is legislative for the purposes of establishing absolute immunity. See id. at 1220. The court must consider:

"(1) whether the act involves ad hoc decisionmaking, or the formulation of policy; (2) whether the act applies to a few individuals, or to the public at large; (3) whether the act is formally legislative in character; and (4) whether it bears all the hallmarks of traditional legislation."

Id. at 1220 (internal citations and quotations omitted). "The Supreme Court has generally been quite sparing in its recognition of claims to absolute official immunity." Id. at 1219-20 (internal quotations omitted).

The gravamen of plaintiffs' complaint against the Board defendants is that their deliberate failure to act to remedy deficiencies in Lassen County CPS, such as inadequately trained social workers, amounted to an official policy of operating a non-compliant CPS and of deliberate indifference to constitutional rights. (See Amy McConnell's Answers to Def. Board's Interrogatories, Exs. C-G to Decl. of Kathleen J. Williams in Supp. of Def. Board's Mot. for Summ. J., filed May 8, 2007).¹⁵ As such, the conduct complained of by plaintiffs, by their own allegations and argument, involve the formulation of policy. See Bogan, 523 U.S. at 55-56 (holding that legislative immunity applied because the local officials' actions "reflected a discretionary, policymaking decision implicating the city's budgetary interest"); cf. Kaahumanu, 315 F.3d at 1220 (finding that the Council's decision was ad hoc because it was based upon the circumstances of the particular case); Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir. 1994) (finding that the Board's decision to indemnify specific punitive damages awards against certain police officers did not involve the formulation of policy). Moreover, by plaintiffs' own assertions, the alleged policy of inaction did not target a few specific individuals, but rather, affected CPS, its employees, the children taken into custody and parents of those children. See id. Therefore, the policy at issue affected the public at large.

15 The answers to numerous interrogatories provide:

As a Supervisor, [defendant] was required to vote and make provision for the acts and omissions of CPS. He is one of the persons who sets policy and adopts the acts and failures to act of the employees of Lassen County as policy by taking no action. He had knowledge of the prior litigation involving CPS. He also had prior knowledge of Grand Jury reports. His adoption of policy because of actions or failure to act have a direct relationship to the damages done to Amy McConnell and her minor children.

Id. (emphasis added).

The remaining factors, whether the act was formally legislative in character and whether it bears all the hallmarks of traditional legislation, are difficult to apply in this case because plaintiffs' complaint arises out of the alleged deliberate refusal of Board defendants to adopt policy. Thus, the conduct complained of is a failure to act. However, if Board defendants acted on the Grand Jury's recommendation and attempted to reform CPS by establishing new training, supervision, or discipline requirements, such conduct would involve votes. Such involvement is presumed since, as members of a legislative body, Board defendants can only act through their votes. Hart v. Baca, 204 F.R.D. 456, 459 (C.D. Cal. 2001). Therefore, because any affirmative conduct regarding policy changes to Lassen County CPS would be formally legislative in nature, the deliberate choice not to adopt such policies is considered likewise. See id. (holding that defendant supervisors were entitled to absolute legislative immunity for the actions they took or failed to take regarding the failure to adequately train, supervise, and discipline sheriff's deputies). Further, defendants' alleged deliberate refusal to reform Lassen County CPS is a discretionary, policymaking decision that has prospective implications and implicates budgetary concerns. As such, the alleged act (or failure to act) bears all the hallmarks of traditional legislation. See Bogan, 523 U.S. at 55-56; cf. Kaahumanu, 315 F.3d at 1223.

Because defendants' alleged conduct in deliberately refusing to set in place actions that would result in the creation of a compliant Lassen County CPS was a policy decision that affected the public at large and because such conduct was formally legislative in nature and bears the hallmarks of traditional legislation, Board defendants are entitled to absolute legislative immunity for their alleged conduct.¹⁶ Therefore, Board defendants' motion for summary judgment regarding plaintiffs' claims under 42 U.S.C. § 1983 is GRANTED.

16 Plaintiffs fail to present any evidence that Board defendants' administrative acts caused their alleged harm. On a motion for summary judgment, plaintiffs' conclusory assertion that acts are administrative, not legislative, is insufficient to raise a triable issue of fact.

II. Defendant Loel Griffith

Plaintiff Amy McConnell brings a claim against defendant Loel Griffith under 42 U.S.C. § 1983 for violation of her Fourteenth Amendment rights, and all plaintiffs bring claims under California state law for negligence in failing to fulfil a mandatory duty and intentional infliction of emotional distress.¹⁷ Defendant Griffith contends that summary judgment should be granted because none of the plaintiffs' allegations of wrongdoing or injury can be attributed to defendant's actions.

17 Defendant asserts that defendant Griffith was dismissed from plaintiff's intentional infliction of emotional distress claim pursuant to a motion to dismiss the First Amended Complaint. Plaintiff does not contest this assertion. However, for the sake of completeness, the court will address both of plaintiffs' state law claims against defendant Griffith.

A. 42 U.S.C. § 1983

In order to establish her claim under § 1983, plaintiff McConnell must demonstrate that defendant Griffith (1) acted under color of state law, and (2) deprived plaintiffs of a right secured under the Constitution or federal statutes. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).

Plaintiff McConnell asserts that defendant Griffith violated her Fourteenth Amendment rights to familial association through the continued, unjustified detention of the children after Griffith was appointed as the social worker for the McConnell family. It is well-settled that the Fourteenth Amendment protects the right of parents and children to live together without governmental interference. Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (collecting cases). As such, parents and children cannot "be separated by the state without due process of law except in an emergency." Id. at 1136-37.

Specifically, plaintiff asserts that Griffith violated her constitutional rights by creating a case plan, failing to get the signature and approval of McConnell, and then holding any sessions that McConnell allegedly missed against McConnell. (Am. Opp'n to Mot. for Summ. J. of Griffith, Docket # 170, filed May 23, 2007, at 2). The case plan identified by plaintiff as problematic is a case plan dated March 15, 2004. (Id. at 2). It is undisputed that Griffith was the social worker assigned to the McConnell family until February 15, 2004. (GUF ¶ 15). As such, defendant ceased to be the assigned social worker on the case one month before the case plan was signed. Moreover, on the copy of the case plan submitted by plaintiff,¹⁸ the social worker whose name and signature appear on the document is Tamara Chandler, not Loel Griffith. (Ex. 3 to Decl. of Treva J. Hearne in Opp'n to Griffith's Mot. ("G. Hearne Decl."), filed May 23, 2007). Therefore, plaintiffs have failed to proffer any evidence that defendant Griffith was responsible for any alleged conduct relating to the case plan prepared on March 15, 2004.

18 Defendant Griffith objects to the submitted case plan as not properly authenticated. The court does not address defendant's objection because even if the court considers such evidence, plaintiff has failed to raise a triable issue of fact.

Plaintiff also asserts that the children were separated and placed in two different foster homes. Plaintiff offers no evidence in support of this assertion and fails to identify when such separation occurred or how defendant Griffith was involved in the separation. Plaintiff merely cites to the Case Plan prepared on or about March 15, 2004, which was signed by another social worker.¹⁹ Rather, the status report submitted to the court by Loel Griffith, dated January 5, 2004, indicates that, at that time, the minor plaintiffs were all placed with their maternal grandparents, the Durands. (Status Report, Ex. B to Decl. of Loel Griffith ("Griffith Decl."), filed May 8, 2007).

19 Plaintiff cites to Exhibit 1, which Treva J. Hearne declared are the investigation reports and service logs found in the court files of the Lassen County Superior Court. Citation to this exhibit makes little sense in the context of plaintiff's argument. However, in the preceding paragraph of her opposition, (Opp'n at 2), plaintiff mis-cited to the case plan as Exhibit 1, although the case plan was filed as Exhibit 3 to the Declaration of Treva J. Hearne. As such, the court assumes plaintiff was attempting to cite to the case plan.

Although plaintiff primarily references allegations relating to the case plan and the separation of the children in her opposition, the gravamen of plaintiff McConnell's claim against defendant Griffith is that Griffith violated her rights to familial association through the continued, unjustified detention of the children. However, at the time that Griffith became the social worker for the McConnell family, the children were under the jurisdiction of the Lassen County Juvenile Court, which on May 8, 2003, in response to the Juvenile Dependency Petition, had ordered detention of the children at a suitable place or home and in the custody of Lassen County CPS. (See Lassen County Order of Detention, Ex. A to Def. Griffith's Request for Judicial Notice, filed May 8, 2007); Cal. Welf. Inst. Code § 300 (West 2007). Section 303 of the California Welfare and Institutions Code provides that "[t]he court may retain jurisdiction over any person who is found to be a dependent child of the juvenile court until the ward or dependent child attains the age of 21 years." Cal. Welf. Inst. Code § 303. However, "[a] judge of the juvenile court in which a petition was filed . . . may dismiss the petition if the court finds that the interests of justice and the welfare of the minor require the dismissal. . . ." Cal. Welf. Inst. Code § 390. As such, as a social worker, defendant Griffith did not have the unilateral authority to return the children to plaintiff McConnell. Further, "social workers enjoy absolute, quasi-judicial immunity when making post-adjudication custody decisions pursuant to valid court order." Mabe v. San Bernardino County, 237 F.3d 1101, 1109 (9th Cir. 2001).

However, to the extent that plaintiff McConnell contends that the one document Griffith submitted to the court during her tenure as the family's social worker violated her Fourteenth Amendment rights, such argument also fails. In the status report, dated January 5, 2004, Griffith recommends that the reunification services to plaintiff Amy McConnell and James McConnell be terminated. (Status Report at 1). This recommendation was made on the basis that McConnell had current criminal charges pending, she was being evicted from the family house, and that many of the items in the case plan remained unfinished and in progress. (Status Report at 14). The report also noted that McConnell had three positive drug screens with Lassen County Children and Family Services: (1) on September 18, 2003, she tested positive for opiates, methamphetamine, and THC; (2) on November 11, 2003, she tested positive for methamphetamine; and (3) on November 21, 2003, she tested positive for opiates and did not show proof of a prescription for Vicodin. (Status Report at 11).

Plaintiff argues that none of the drug tests performed on McConnell by CPS or Lassen County was done properly.²⁰ She argues that defendant violated her constitutional rights by not providing this exculpatory evidence. However, the testimony cited to by plaintiffs does not support the broad assertion that no drug test was done properly. The service logs, prepared by Lassen County, provide that on September 18, the swab test was invalid due to the lack of saliva, but showed positive for methamphetamine. (Ex. 1 to G. Hearne Decl. at 8). On September 19, 2003, although the urine dip test was negated, an oral swab showed that McConnell tested positive for opiates, amphetamines, and THC. (Id. at 9). The last date covered by the status reports referenced by plaintiff is September 15, 2003. (Id. at 10). As such, there is no evidence disputing the administration of the November 2003 drug tests. Plaintiff's assertion that the drug tests were improperly performed is without evidentiary support. Therefore, her claims regarding defendant's failure to disclose this information are without merit.²¹

20 Defendant Griffith objects to the submitted records as not properly authenticated and containing inadmissible hearsay. The court does not address defendant's objection because even if the court considers such evidence, plaintiff has failed to raise a triable issue of fact.

21 Further, even if such claims could be substantiated, defendant Griffith would be entitled to absolute immunity from the claim that she submitted false of incomplete documents to the juvenile court. See e.g. Beltran v. Santa Clara County, ___ F.3d ___, No. 05-16976, 2007 WL 1805559 (9th Cir. Jun. 25, 2007) (holding that social workers are entitled to absolute immunity for verified statements in petitions filed with a dependency court, including dependency and custody petitions); Doe v. Lebbos, 348 F.3d 820, 826 (9th Cir. 2003) (failure to investigate possible exculpatory evidence and fabricated evidence); Mabe, 237 F.3d at 1109 (social worker alleged to have improperly conducted the investigation and falsified evidence in juvenile court proceedings); Hennessey v. State of Wash., Dep't of Soc. Health Serv., 627 F. Supp. 137, 140 (E.D. Wash. 1985) (caseworker allegedly divulged false and misleading information to county prosecutor, prompting initiation of child dependency proceedings).

Moreover, the court notes that plaintiff Amy McConnell testified at her deposition that she had no complaints about defendant Loel Griffith. (GUF ¶ 34). The court finds it troubling that plaintiff continues to press claims against a defendant that she testified, under penalty of perjury, she has no complaints against. However, for the reasons set forth above, defendant Griffith's motion for summary judgment regarding plaintiff McConnell's claims for violation of her Fourteenth Amendment rights is GRANTED.

In her opposition, plaintiff asserts for the first time that defendant Griffith delayed in getting J.M. medical care after she was molested by Hank Coy. Plaintiff contends that this delay prevented diagnosis of the extent of the sexual molestation. Even under liberal notice pleading standards, plaintiffs did not allege a claim against Griffith in their complaint based upon the failure to promptly provide medical service. Rather, the crux of plaintiff McConnell's claim is that defendant failed to return the children to her after defendant became the McConnell's social worker.

Even if the court construes plaintiff's assertion of a new theory as a motion to amend their complaint,²² plaintiff has not shown "good cause" to amend the pleading under Federal Rule of Civil Procedure 16(b), as is required by the court's Pretrial Scheduling Order. (Pretrial Scheduling Order, Docket # 59, filed Apr. 18, 2006). The good cause requirement of Rule 16 primarily considers the diligence of the party seeking the amendment. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). When the proposed modification is an amendment to the pleadings, the moving party may establish good cause by showing "(1) that [he or she] was diligent in assisting the court in creating a workable Rule 16 order; (2) that [his or her] noncompliance with a rule 16 deadline occurred or will occur, notwithstanding [his or her] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment of the Rule 16 order, once it became apparent that [he or she] could not comply with the order." Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted). Whether or not defendant Griffith promptly obtained medical care for J.M. after the sexual abuse is a fact that has not changed since the filing of the complaint. To the extent that facts were obtained in discovery which led to the assertion of this theory, plaintiff does not identify when such facts were obtained, nor does she contend that amendment of the complaint was requested promptly after the plaintiff obtained such knowledge. Therefore, plaintiff has failed to demonstrate "good cause" to add a claim based upon defendant Griffith's alleged failure to provide prompt medical care.

22 See Apache Survival Coalition v. United States, 21 F.3d 895, 910 (9th Cir. 1994) (holding that when issues are raised in opposition to a motion for summary judgment which are outside the scope of the complaint, the court should construe the opposition as a motion to amend the pleadings).

Furthermore, even if such "good cause" could be demonstrated, in order to successfully amend the complaint, plaintiff would also have to show that leave to amend is warranted under Federal Rule of Civil Procedure 15(a) which states "leave [to amend] is to be freely given when justice so requires." Plaintiff has failed to proffer any argument that the interests of justice require granting plaintiffs leave to amend their complaint at this late stage in the proceedings when all discovery has closed and the deadline for filing dispositive motions has passed. Moreover, plaintiff McConnell has failed to allege how defendant's alleged failure to promptly provide medical care to J.M. violated her Fourteenth Amendment right to familial association. As such, the court does not consider the merits of this claim.

B. California State Law Claims

Plaintiffs allege that defendant Griffith was negligent in her performance of mandatory duties and that she intentionally inflicted emotional distress upon them. Defendant Griffith contends that plaintiffs' claims must be dismissed for failure to comply with the California Tort Claims Act.²³

23 Plaintiffs utterly fail to respond to defendant Griffith's contention that they failed to timely comply with the California Tort Claims Act. Such silence could be interpreted as a non-opposition to defendant's argument. However, for the sake of completeness, the court will address the issue herein.

In order to state a tort claim against a public entity, the California Torts Claim Act requires "the timely presentation of a written claim and the rejection of the claim in whole or in part." Mabe v. San Bernardino County, 237 F.3d 1101, 1111 (9th Cir. 2001) (quoting Mangold v. Cal. Pub. Util. Comm'n, 67 F.3d 1470 (9th Cir. 1995)). Tort claims such as the instant claims for intentional infliction of emotional distress and negligence are not listed among the exceptions to § 905. Moreover, under California Government Code § 945.4,

no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to by presented in accordance with Chapter 1 (commencing with section 900) and Chapter 2 (commencing with section 910) of Part 3 of this division until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.

Cal. Gov't Code § 945.4 (West 2007). Finally, under California Government Code § 950.2, any suit against a public employee is barred in cases where a plaintiff's action against the agency is barred for failure to present a claim. Cal. Gov't Code § 950.2 (West 2007). The 1965 Amendment to § 950.2 makes it clear that "the presentation of a claim to the employing public entity is a prerequisite to suit against an employee." Id. Claims relating to personal injury must be filed no later than six months after the accrual of the cause of action. Cal. Gov't Code § 911.2 (West 2007).

Plaintiffs' claims were filed on December 16, 2004 and January 21, 2005, at least ten months after defendant Griffith ceased to be plaintiffs' social worker on February 15, 2004. Further, defendant Griffith was not named in any of the claims filed by plaintiffs. As such, plaintiffs have failed to comply with the California Tort Claims Act.

However, even if plaintiffs had complied with the procedural prerequisites to bringing their tort claims, they have failed to produce any evidence that defendant Griffith acted negligently or intentionally inflicted emotional distress. In their complaint, plaintiffs assert that defendant Griffith failed to prepare a case plan within sixty days of the minor children being taken into custody. (Compl. ¶¶ 97, 104). Defendant Griffith was not the social worker for the McConnell family until September 29, 2003, five months after the children were detained. Therefore, she had no duty to prepare the initial case plan for the McConnell family.²⁴ Plaintiffs also allege that defendant had a mandatory duty to give preference to a family member who could take care of the children. (Compl. ¶ 98). However, the evidence produced by the parties indicate that the minor children were placed with their maternal grandparents during defendant's tenure as their social worker.

24 Plaintiffs also allege that defendant did not provide adequate reunification services. (Compl. ¶ 104). However, plaintiffs do not argue the merits of this allegation in their opposition or provide any evidence to support this claim. As such the court deems this claim waived by plaintiffs.

Plaintiffs further allege that defendant Griffith failed to comply with the provisions of § 309 of the California Welfare and Institutions Code, requiring release of a detained child unless there is an immediate and urgent need to continue the detention and there are no reasonable means by which the child can be protected at home.²⁵ (Compl. ¶ 104); Cal. Welf. Inst. Code § 309. However, § 309 imposes this duty upon the social worker of a child who has been taken into temporary custody, i.e. detention of a child without a warrant. See Cal. Welf. Inst. Code §§ 305, 309. At the time that defendant Griffith was the McConnell family's social worker, the Lassen County Juvenile Court had ordered the detention of the minor plaintiffs. As such, § 309 does not apply to defendant Griffith.²⁶

25 Plaintiffs cite Parkes v. County of San Diego in support of their argument that defendant Griffith violated § 309. 345 F. Supp. 2d 1071, 1084 (S.D. Cal. 2004). However, in Parkes, the court discussed § 309 in it analysis of the plaintiffs' claims relating to the pre-hearing detention. In this case, plaintiffs' claims against defendant Griffith relate to the post-hearing detention. Further, the court in Parkes found that defendant social worker was entitled to immunity.

26 Plaintiffs also allege that defendant Griffith failed to perform a mandatory duty under § 387 of the Cal. Welf. Inst. Code, which relates to supplemental petitions to modify a previous order removing a child from the physical custody of a parent. (Compl. ¶ 104). As an initial matter, it is unclear what duty this section allegedly imposed upon defendant Griffith. Moreover, plaintiffs do not argue the merits of this allegation in their opposition or provide any evidence to support this claim.

Finally, for the reasons set forth above in the court's discussion of plaintiff McConnell's Fourteenth Amendment claim and plaintiffs' negligence claim, plaintiffs have failed to set forth any evidence of conduct by defendant Griffith that intentionally inflicted emotional distress upon plaintiffs. The court again notes that plaintiff testified that she has no complaints against defendant Griffith. (GUF ¶ 34).

Therefore, defendant Griffith's motion for summary judgment regarding plaintiffs' state law claims is GRANTED.

III. Defendant Terry Chapman

Plaintiffs bring claims against defendant Terry Chapman under 42 U.S.C. § 1983 for violations of their Fourth and Fourteenth Amendment rights and under California state law for negligence in failing to fulfil a mandatory duty and intentional infliction of emotional distress.²⁷ A. 42 U.S.C. § 1983

27 In her complaint, plaintiff McConnell makes numerous, vague references to other conduct by defendants T. Chapman, Lassen County, Loel Griffith, and Margaret Crosby that allegedly deprived her of procedural and substantive due process. (See e.g., Compl. ¶¶ 72-75). The court does not address these allegations herein as plaintiff does not raise these theories in her opposition to the motions, and therefore, the court deems these claims waived.
Moreover, the gravamen of plaintiff's claims are that she was deprived of here fundamental right to familial relations due to the detention of her children. The court discusses these claims infra.

Defendant T. Chapman contends that summary judgment should be granted regarding plaintiffs' § 1983 claims because there have been no constitutional violations. Plaintiffs' claims arise out of the removal and detention of the minor children.²⁸

28 While plaintiff McConnell's claim is brought pursuant to the Fourteenth Amendment and the minor plaintiffs' claims are brought pursuant to the Fourth Amendment, the standard under which these claims must be assessed are the same, and thus the court addresses them together. See Lebbos, 348 F.3d at 827 n. 9.

1. Pre-hearing Detention

Plaintiffs allege that defendant T. Chapman violated their constitutional rights under the Fourth and Fourteenth Amendments because defendant T. Chapman detained the minor plaintiffs without a warrant. It is well-established that parents and children cannot "be separated by the state without due process of law except in an emergency." Wallis, 202 F.3d at 1136-37. "Officials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury." Id. at 1138. Defendant T. Chapman asserts that the minor plaintiffs were removed without a warrant because of exigent circumstances. Defendant also asserts that he is entitled to qualified immunity for his conduct.

a. Violation of a Constitutional Right

Defendant's initial contact with the children was made when Durand brought the children into Lassen County CPS on May 5, 2003. Durand informed defendant that three of the children, ages nine-months-old, six-years-old, and four-years-old, were left unattended, and that this was an ongoing problem about which he had confronted plaintiff McConnell previously. Durand also told defendant that he was afraid for the children's safety. T. Chapman observed that the children were dirty and wearing dirty clothes. Both minor female plaintiffs confirmed that they had been left alone, and female plaintiff J.M. told defendant that her parents always left her alone and that she was afraid. When T. Chapman interviewed McConnell, she informed him that there was a propane leak in the house, a fact later confirmed by James McConnell. A history search in the child welfare computer system revealed that the McConnell family had prior referrals. T. Chapman's interview with A.B. and A.B's principal revealed numerous unexplained absences and tardiness within an eight month period. Furthermore, male plaintiff A.B. stated in his interview with Stevenson-Hibbs that James McConnell had previously poured a bucket of water over his head, grabbed him by the neck, threw him against the wall, threatened him with a drill, spanked him so hard that it left bruises, and, the day before, struck him in the face and left a cut around his eye. That same afternoon, the minor plaintiffs were detained and taken into protective custody.

In support of their claims, plaintiffs attempt to offer as evidence a memo, allegedly written by defendant T. Chapman to his supervisor, in which defendant admits that he was negligent in his removal of the children. (Ex. A to Ex. 16 to Hearne Decl.). Exhibit A purports to be this memo, dated and written on Lassen County Health and Human Services Department letterhead, from T. Chapman to Bill Jost. The memo identifies both the author and recipient and contains a signature above T. Chapman's name. However, this proffered evidence lacks foundation because plaintiffs have failed to submit an affidavit from T. Chapman stating that he wrote the memo. See Orr v. Bank of America, 285 F.3d 764, 777 (9th Cir. 2002) (finding that a memo submitted in support of summary judgment was inadmissible because plaintiff had failed to submit an affidavit from the alleged author that he had in fact authored the document). Rather, plaintiffs attempt to authenticate this memo through the declaration of Deborah Henson, a CPS supervisor who was allegedly copied on the memo. (Ex. 16 to Hearne Decl.). Henson's declaration does not lay a foundation for Ex. A because Henson neither wrote the memo nor witnessed T. Chapman do so. See id. Further, defendant T. Chapman has submitted the declarations of two experts, both of whom opine that the purported memo is not genuine. (Decl. of David S. Moore, filed May 8, 2007; Decl. of Alan M. Perlman, filed May 8, 2007). Plaintiffs offer no evidence that supports the authenticity of this memo. Therefore, the purported memo is not admissible evidence, and the court will not consider it in ruling upon the motions for summary judgment.

Defendants contend that T. Chapman had reasonable cause to believe that male plaintiff A.B. was being physically abused by James McConnell. See Lebbos, 348 F.3d at 827 (finding that the defendant social worker did not violate the plaintiffs' constitutional rights by detaining the child prior to her detention hearing based upon observation of redness, the child's complaints of pain, and her father's alleged alcohol abuse and general neglect). A.B. made numerous allegations of such abuse to a Susanville police officer and defendant. A.B. also had a cut around his eye that was consistent with his assertion that James McConnell had slapped him the day before and cut him with the silver ring he wore.

Plaintiffs contend that a professional should have recognized that many of A.B.'s statements were exaggerations. However, plaintiffs provide no evidence to support this assertion.²⁹ Moreover, the court finds problematic that plaintiffs' unsupported argument seems to imply that social workers should not take allegations of physical abuse from a seven-year-old seriously, but instead, should assume that he is exaggerating. See Parkes, 345 F. Supp. 2d at 1083 (rejecting the plaintiffs' argument that defendant social worker should not have believed the children's allegations of sexual abuse). Plaintiffs also contend that McConnell reported that A.B. had the scar for some time. There is no evidence that this report was made to T. Chapman prior to the detention; the evidence cited to by plaintiffs were statements made by McConnell at the juvenile court proceedings.

29 To the extent that plaintiffs seek to offer the deposition testimony of Ann Burgess as support for this point, Burgess testified that she was only offering her expert opinion as to the impact of separation of a mother and her children, not whether the removal was the appropriate decision. (Deposition of Ann Wolbert Burgess ("Burgess Dep.") at 27:22-28:17).

However, plaintiffs also contend that the allegations that James McConnell was abusive did not justify removing the children from plaintiff McConnell's custody because he offered to leave the residence so that the children could return home with their mother. Defendant T. Chapman does not remember James McConnell making this offer, but contends that exigent circumstances still existed for the pre-hearing detention of the children. Defendant asserts that the information regarding a propane leak in the house, coupled with McConnell's reported history of leaving the children home unattended, demonstrated that the children were at risk of an immediate threat of serious bodily injury if left in their mother's custody.

"[W]hether reasonable cause to believe exigent circumstances existed is generally a question of fact for the jury." Parkes, 345 F. Supp. 2d at 1089; see Mabe, 237 F.3d at 1108. As such, "summary judgment in favor of the defendant is improper unless, viewing the evidence in the light most favorable to the plaintiffs, it is clear that no reasonable jury could conclude that the plaintiffs' constitutional rights were violated." Mabe, 237 F.3d at 1108 (quoting Wallis, 202 F.3d at 1138). Based upon the circumstances presented in this case, there exists a material question of fact whether the minor plaintiffs were at a risk of an immediate threat of serious bodily harm if left with their mother and therefore, a triable issue regarding whether defendant T. Chapman violated plaintiffs' constitutional rights by detaining the children without a warrant. See Parkes, 345 F. Supp. 2d at 1088-89 (denying defendant social worker's motion for summary judgment where she detained the children based upon allegations of sexual abuse against the father and because of her concerns that the mother would not be protective and might put pressure on the children before the evidentiary hearing).³⁰

30 Defendant T. Chapman asserts that McConnell's plea of no contest to a violation of § 300(b) precludes her § 1983 claims. However, plaintiff's plea did not address the exigency of the circumstances, the crux of plaintiffs' claims arising out of the pre-hearing detention of the minor plaintiffs. See Mabe, 237 F.3d at 1110 (finding a triable issue of fact regarding the social worker's pre-hearing removal, but granting defendant's motion for summary judgment regarding the post-hearing removal).

b. Qualified Immunity

Defendant T. Chapman argues that even if there are triable issues relating to whether a constitutional violation occurred, he is entitled to qualified immunity. The doctrine of qualified immunity protects from suit government officers who do not knowingly violate the law. Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994). "Qualified immunity shields a government official from liability for civil damages if (1) the law governing the official's conduct was clearly established; and (2) under that law, the official objectively could have believed that her conduct was lawful. Mabe, 237 F.3d at 1106 (citing Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997).

The question of immunity generally is not one for the jury. Qualified immunity "`is an immunity from suit rather than a mere defense to liability'. . . . [Therefore,] [i]mmunity ordinarily should be decided by the court long before trial." Hunter v. Bryant, 502 U.S. 224, 228 (1991) (citation omitted). However, if a genuine issue of material fact exists regarding the circumstances under which the officer acted, then the court should make the determination after the facts have been developed at trial. Act Up!\Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993).

The initial inquiry that the court must make to determine whether an official is entitled to qualified immunity is whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Based upon the court's above analysis of defendant T. Chapman's potential liability, the court has found that plaintiffs have presented sufficient evidence for a reasonable juror to find that a constitutional violation or violations did occur.

If, as in this case, a violation could be made out on a favorable view of the parties' submissions, the next inquiry is whether the constitutional right was clearly established. Id. This inquiry must be taken in the light of the specific context of the case. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. However, this does not mean that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but, rather, in light of pre-existing law, the unlawfulness must be apparent. Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal citations omitted). The salient question is whether the law at the time of the disputed conduct gave defendants "fair warning that their alleged treatment of plaintiffs was unconstitutional."See id. at 741. There must exist a clearly established rule so that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 205-06.

The conduct in question surrounds the detention of the minor plaintiffs on May 5, 2003. At this time, the law regarding the fundamental right of parents and children to live together without governmental interference was well established. Mabe, 237 F.3d at 1107 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). Parents and their children have a constitutional right not to be separated without due process of law except in emergencies. See id. (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). In this case, because there is a triable issue of fact regarding whether a reasonable social worker would have believed that there were exigent circumstances requiring the warrantless removal of the minor plaintiffs from the custody of plaintiff McConnell, and because the law regarding warrantless detention of minor children was clear, the court cannot find that defendant T. Chapman is entitled to qualified immunity at this stage of the litigation. See Saucer, 533 U.S. at 205-06.

Therefore, defendant T. Chapman's motion for summary judgment regarding plaintiffs' § 1983 claims arising out of the pre-hearing detention of the minor children is DENIED.

2. Post-hearing Detention

Plaintiffs also allege that defendant T. Chapman violated their constitutional rights after the juvenile court hearing by detaining the children pursuant to court order. Specifically, plaintiffs assert that defendant T. Chapman did not conduct the investigation properly and that he submitted false evidence to the juvenile court.

"[S]ocial workers are entitled to absolute immunity for the initiation and pursuit of dependency proceedings, including their testimony offered in such proceedings." Mabe, 237 F.3d at 1109 (holding that social workers were immune from plaintiff's allegations that they did not conduct the investigation properly and were allowed to submit false evidence to the juvenile court);see Beltran, ___ F.3d ___, 2007 WL 1805559 at *4 (holding that social workers are afforded absolute immunity for their actions that are "closely connected to the judicial process," including verified statements in petitions files with a dependency court);Lebbos, 348 F.3d at 825-26 (holding that social worker was absolutely immune for her actions in investigating and presenting evidence to the dependency court). "Moreover, social workers `enjoy absolute, quasi-judicial immunity when making post-adjudication custody decisions pursuant to a valid court order." Id. Because defendant's alleged conduct related to the initiation and pursuit of dependancy proceedings and the subsequent decisions pursuant to a valid court order, T. Chapman is entitled to absolute immunity as to plaintiffs' claims arising out of the post-hearing detention of the minor children.

Plaintiff McConnell also contends that the post-hearing detention was unlawful because she was denied independent competent counsel and coerced into her no contest plea. However, plaintiff has failed to proffer any evidence that defendant T. Chapman was responsible for the failure to appoint separate counsel at the first detention hearing or for any alleged coercion. Rather, plaintiff states that "[t]he obvious conflict was ignored by the Court and counsel." (TUF ¶ 48). This broad contention, unsupported by any admissible evidence, fails to link T. Chapman to plaintiff's alleged deprivation of due process. Plaintiff also asserts that "the Court adopted the report of CPS without comment . . . and without any requirement that the CPS verify their findings and be cross examined regarding those findings." (Pls.' Opp'n to Mot. for Summ. J. of T. Chapman and Lassen County, filed May 21, 2007, at 23). Again, plaintiff has failed to link any alleged unconstitutional conduct to defendant T. Chapman.

Moreover, plaintiff's ineffective assistance and coercion claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). InHeck, the Supreme Court held that where a complaint for damages under § 1983 implicates the validity of a conviction, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction has already been invalidated. Id. at 486-87. Plaintiff McConnell pled no contest to violating California Welfare and Institutions Code § 300(b). The California Supreme Court has held that a plea of no contest under the California Welfare and Institutions Code is equivalent to a defendant's plea of guilty or nolo contendere in a criminal proceeding. Troy Z. v. San Diego County Dep't of Social Servs., 3 Cal. 4th 1170, 1181 (1992); see also Nuno v. County of San Bernardino, 58 F. Supp. 2d 1127 (C.D. Cal. 1999) (holding that fact that convictions were by plea of nolo contendere did not affect application of rule of preclusion). The issue of whether plaintiff McConnell was effectively represented or coerced implicates the validity of her no contest plea. As such, these claims are not cognizable under § 1983.

Therefore, defendant T. Chapman's motion for summary judgment regarding plaintiffs' § 1983 claims arising out of the post-hearing detention of the minor plaintiffs is GRANTED.

B. California State Law Claims

Plaintiffs allege that defendant T. Chapman was negligent in his performance of mandatory duties and that he intentionally inflicted emotional distress upon them. Defendant T. Chapman contends that plaintiffs' claims must be dismissed for failure to timely comply with the California Tort Claims Act.

Claims relating to personal injury must be filed no later than six months after the accrual of the cause of action. Cal. Gov't Code § 911.2. Plaintiff McConnell filed her tort claim on December 16, 2004, and the minor plaintiffs filed their claims on January 21, 2005. All plaintiffs named defendant T. Chapman in their claims. However, defendant T. Chapman had nothing more to do with the McConnell family's CPS case after September 29, 2003, more than a year before plaintiffs' claims were filed. As such, plaintiffs failed to comply with the California Tort Claims Act.

Plaintiffs argue that the action against defendant T. Chapman did not accrue until November 2004 when plaintiff McConnell and the minor plaintiffs were reunited; plaintiffs argue that the tortious conduct continued until they were reunited. In essence, plaintiffs attempt to apply the continuing violation doctrine to the timely filing requirement of the California Tort Claims Act. Plaintiffs cite no authority for the application of this doctrine to the California Tort Claims Act. However, even if this doctrine could apply, plaintiffs have not presented evidence that defendant T. Chapman continued to violate their rights after September 29, 2003.³¹ The continuing violation doctrine does not apply where the alleged defendant responsible for the continuing offensive conduct was not the same throughout. See Erickson v. West, 178 F.3d 1299 (9th Cir. 1999) (holding that the continuing violation doctrine did not apply where the alleged discriminatory decisions were made by four different supervisors).

31 At best, plaintiffs assert that defendant T. Chapman and CPS failed to prepare a case plan until August 2003 and that this plan was updated. However, it is undisputed that T. Chapman had nothing more to do with the McConnell family's CPS case after September 2003. (TUF ¶ 60). Therefore, defendant T. Chapman cannot be held liable for the failure to update the case plan after he was no longer the social worker for the McConnell family.

Plaintiffs also assert that they were not required to submit a claim for defendant T. Chapman's breach of mandatory duties. In support of this contention, plaintiffs cite only to a California Government Code section that does not exist, California Government Code § 916. Furthermore, the court can find no authority for plaintiff's assertion that they were not required to submit a claim. Cf. Tapia v. Alameida, 03-CV-5422, 2006 WL 3457214, at *2 (E.D. Cal. Nov. 30, 2006) (dismissing the plaintiff's claims for breach of a mandatory duty for failure to comply with the California Tort Claims Act) (adopted by Tapia v. Alameida, 03-CV-5422, 2007 WL 499637, at *1 (E.D. Cal. Feb. 12, 2007)).

Therefore, because plaintiffs have failed to comply with the California Tort Claims Act, defendant T. Chapman's motion for summary judgment regarding plaintiffs' California state law claims for breach of mandatory duties and intentional infliction of emotional distress is GRANTED.

IV. Defendant Lassen County

Plaintiffs also bring claims against defendant Lassen County under 42 U.S.C. § 1983 for violations of their Fourth and Fourteenth Amendment rights and under California state law for negligence in failing to fulfil a mandatory duty and intentional infliction of emotional distress.

A. 42 U.S.C. § 1983

Under Monell and its progeny, a plaintiff may hold a municipality liable under section 1983 if his injury was inflicted pursuant to a County's policy, regulation, custom, or usage. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 694 (1978)). To establish liability, a plaintiff must show

(1) she was deprived of a constitutional right; (2) the County had a policy; (3) the policy amounted to a deliberate indifference to her constitutional right; and (4) the policy was the "moving force behind the constitutional violation."

Mabe, 237 F.3d at 1110-1111 (quoting Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)).

In their opposition, plaintiffs contend that defendant Lassen County had a long standing policy of operating a non-compliant CPS as standard operating procedure. Specifically, they assert that social workers failed to make face to face contact with the children in foster care. In support of their arguments, plaintiffs submit only inadmissible evidence.

First, plaintiffs attempt to submit Exhibit 10, which purports to be true and correct copies of "pertinent parts of the Grand Jury Reports of Lassen County, public documents published by the Grand Jury of Lassen County, and a summary also published by the Grand Jury of Lassen County." (Hearne Decl. ¶ 13). The courts review of the documents submitted in Exhibit 10 reveals at least four different documents: (1) a document with the heading "Consolidation of Grand Jury Reports from 1989 to 2003 in Regards to Child Protective Services"; (2) a document with the heading "Report of Findings, Lassen County, On-site Review, May 19 and 20, 2004"; (3) a document with the heading "California's Child and Family Services Review County Self-Assessment"; and (4) a document with the heading "Review of Lassen County CWS by Gary Kupfer." Plaintiffs attempt to authenticate all of these documents through the declaration of Treva J. Hearne ("Hearne"), plaintiffs' counsel.

Hearne cannot properly authenticate the documents in Exhibit 10. She does not attest that she wrote the documents or that she witnessed who wrote the documents. Orr, 285 F.3d at 777. Nor are any of the documents signed. Id. Further, Hearne has not identified who produced the documents and defendant Lassen County has not admitted to producing these documents. Id.

To the extent that plaintiffs attempt to argue that these documents are self-authenticating, plaintiffs are mistaken. See Fed.R.Evid. 902 (West 2007). None of the documents are certified copies of public records. See Fed.R.Evid. 902(4). However, plaintiffs implicitly argue that these documents are "official publications" of the Grand Jury of Lassen County, (Hearne Decl. ¶ 13), and thus self-authenticating pursuant to Rule 902(5) of the Federal Rules of Evidence. Rule 902(5) provides that "[b]ooks, pamphlets, or other publications purporting to be issued by public authority" are self-authenticating. However, there is no indication that these documents were official publications or that they were even published by the Lassen County Grand Jury. Cf. United States v. Williams, 946 F.2d 888 (4th Cir. 1991) (holding that United States Army Pay Tables were self-authenticating pursuant to Rule 902(5)); United States v. Cecil, 836 F.2d 1431, 1452 (4th Cir. 1988) (official government statistics are self-authenticating);Cherry Hill Vineyards, LLC v. Hudgins, ___ F. Supp. 2d ___, 2006 WL 3791986 (W.D. Ky. Dec. 26, 2006) (Federal Trade Commission Staff Report is self-authenticating). None of these documents are printed on letterhead or have any other identifying mark demonstrating that they were produced by the Grand Jury. None of these documents are signed. Two of these documents, the Report of Findings from the On-site Review and the County Self-Assessment, are stamped "DRAFT." As such, the court cannot find that the documents submitted in Exhibit 10 are self-authenticating. Therefore, they are inadmissible.

Moreover, even if the documents in Exhibit 10 were properly authenticated, they are rank hearsay. While Grand Jury Reports may be admissible as an exception to the hearsay rule pursuant to Federal Rule of Evidence 803(8), none of the documents submitted in Exhibit 10 can be construed as a Grand Jury Report. At best, plaintiffs produce evidence purporting to be a "Consolidation of Grand Jury Reports." This document does not contain any information indicating who prepared it or for what purpose, nor is this document signed by any member of the Grand Jury. The other documents submitted by plaintiffs are a county self-assessment, a report submitted by Gary Kupfer, and report of the on-site review conducted by Children's Services Operation Bureau. Plaintiffs fail to offer any argument as to what hearsay exception would allow these documents to be offered for the truth of the matter asserted. Therefore, they are inadmissible.

Second, plaintiffs attempt to introduce as Exhibit 11 a letter and an attached report purportedly from Barbara Eaton, Chief of the Children's Services Operations Bureau, to Mr. Thomas Keefer of the Lassen County Department of Health. Plaintiffs attempt to authenticate this document through the declaration of Hearne. Again, Hearne does not attest that she wrote the documents or that she witnessed the writing of the documents.Orr, 285 F.3d at 777. Nor does she attest that she is familiar with Eaton's signature. Id. Further, there is no argument by plaintiffs that this document is self-authenticating. Therefore, Exhibit 11 is inadmissible.

Furthermore, Exhibit 11 is also inadmissible hearsay. Plaintiffs implicitly contend that this letter falls within the business record exception, as Hearne attests that the letter was "prepared in the ordinary course of business." (Hearne Decl. ¶ 14). However, plaintiff's counsel fails to proffer any information that would lead this court to find that she has the requisite personal knowledge to attest to what documents are produced in the ordinary course of business at the Children's Services Operations Bureau.

Finally, plaintiffs attempt to offer Exhibit 12, which is purportedly the Final Report on the Restructure of Lassen County Health and Human Services, signed by Thomas D. Gauthier. Plaintiffs attempt to authenticate this document through the declaration of Hearne. Again, Hearne does not attest that she wrote the documents or that she witnessed who wrote the documents. Orr, 285 F.3d at 777. Nor does she attest that she is familiar with Gauthier's signature. Id. Further, there is no argument that this is document is self-authenticating. Therefore, Exhibit 12 is inadmissible.

Exhibit 12 is also inadmissible hearsay. Plaintiffs also implicitly contend that this letter falls within the business record exception, as Hearne attests that the letter was "prepared in the ordinary course of business." (Hearne Decl. ¶ 15). However, plaintiff's counsel again fails to proffer any information that would lead this court to find that she has the requisite personal knowledge to attest to what documents are produced in the ordinary course of business by the Chief Administrative Officer.

Therefore, because plaintiffs have failed to adduce any admissible evidence to substantiate their claims that defendant had a policy of non-compliance, defendant Lassen County's motion for summary judgment regarding plaintiffs § 1983 claims is GRANTED.

B. California State Law Claims

Plaintiffs allege that defendant Lassen County was negligent in its performance of mandatory duties and that it intentionally inflicted emotional distress upon them. Defendant Lassen County contends that plaintiffs' claims must be dismissed for failure to timely comply with the California Tort Claims Act and because there is no basis for defendant Lassen County's liability.

Plaintiffs argue that the action against defendant Lassen County did not accrue until November 2004 when plaintiff McConnell and the minor plaintiffs were reunited; plaintiffs argue that the tortious conduct continued until they were reunited. In essence, plaintiffs attempt to apply the continuing violation doctrine to the timely filing requirement of the California Tort Claims Act. Plaintiffs cite no authority for the application of this doctrine to the California Tort Claims Act. However, even if this doctrine could theoretically apply to the California Tort Claims Act, plaintiffs have not alleged circumstances that would justify the application of the doctrine in this case; rather, plaintiffs' claims are based on discrete instances of alleged misconduct. See Cherosky v. Henderson, 330 F.3d 1243, 1246 ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.") (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)). In their complaint, plaintiffs allege discrete mandatory duties that were allegedly not fulfilled by defendant Lassen County. (See Compl. ¶ 104). Likewise, their allegations regarding intentional infliction of emotional distress arise out of specific instances of misconduct. (See Compl. ¶¶ 85-88). As such, their claims are only timely where such acts occurred during the limitations period. See Cherosky, 330 F.3d at 1246. Because plaintiff McConnell filed her claim on December 16, 2004, to be actionable, the conduct giving rise to her state law claims must have occurred after June 16, 2004. Because the minor plaintiffs filed their claims on January 21, 2005, the conduct giving rise to their state law claims must have occurred after July 21, 2005.

Plaintiffs allege that defendant Lassen County violated § 309 of the Welfare and Institutions Code by failing to place the minor plaintiffs with a relative after being taken into temporary custody and that such violation caused emotional distress.³² Such a violation occurred in May 2003 when Lassen County CPS detained the children without a warrant. After the juvenile court hearings in May and June 2003, in which the Lassen County Juvenile Court ordered the detention of the minor plaintiffs, the minor plaintiffs were no longer in temporary custody as set forth in the statute. Therefore, this conduct falls outside the limitations period and is not actionable.

32 In their briefings, the parties fail to discuss with any particularity the basis for plaintiffs' tort claims. For the sake of completeness, the court analyzes each statutory basis for defendant Lassen County's tort liability as set forth in plaintiffs' complaint. (See Compl. ¶¶ 83-106).

Plaintiffs also allege that defendant Lassen County failed to prepare a case plan within sixty days of the initial removal of the children in May 2003 or by the date of the dispositional hearing as required by Welfare and Institutions Code § 16501.1 and that such failure caused them emotional distress. It is undisputed that the case plan was filed on August 12, 2003. As such, any claim arising out of the alleged belatedly filed case plan accrued in or around the summer of 2003. Therefore, this conduct falls outside the limitations period and is not actionable.

Plaintiffs further allege that defendant failed to fulfill a duty under California Welfare and Institutions Code by failing to provide family preservation services. As previously addressed in ruling on defendant Lassen County's motion to dismiss, to bring a tort claim against a government entity in California, liability must be based on statute. County of Los Angeles v. Superior Court, 102 Cal. App. 4th 627, 637 (2002).³³ Section 16500.5 provides that the Legislature "declares its intent to encourage the continuity of the family unit" by providing family preservation services, supportive services for children, and counseling and family support services. Cal. Welf. Inst. Code § 16500.5 (West 2007). Even if the conduct of defendant occurred during the limitations period, this declaration of legislative intent does not impose a mandatory duty upon defendant Lassen County. "An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agency's exercise of discretion."County of Los Angeles v. Superior Court, 102 Cal. App. 4th 627, 639 (2002) (citing Wilson v. County of San Diego, 91 Cal. App. 4th 974, 980 (2001)). Section 16500.5 merely sets out the intent of the legislature to encourage the continuity of the family unit by providing support services that the agency must implement through its discretion. As such, this section does not impose a mandatory duty upon defendant Lassen County and thus, there is no basis for tort liability arising out of this section.

33 The court previously found that § 16500.5 did not create a mandatory duty. However, for the sake of completeness, the court reincorporates its finding in this analysis.

Finally, plaintiffs allege that Lassen County failed to comply with Welfare and Institutions Code § 387. Section 387 imposes a duty to provide a noticed hearing before issuing "an order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution." Cal. Welf. Inst. Code § 387 (West 2007). This section does not dictate the ultimate result, but merely imposes a mandatory duty to provide a noticed hearing before issuing such an order. Further, at best, plaintiffs' claim under § 387 is premised upon defendant Lassen County's failure to file a supplement petition seeking to modify the juvenile court order that removed the minor children from plaintiff McConnell. Section 387 does not impose a duty upon the county or social worker to file such a petition where a juvenile court has ordered that the children be detained in the agency's custody and placed at a suitable place or home. In re Cynthia C., 58 Cal. App. 4th 1479, 1490 (holding that the defendant County Social Services Agency had no duty to file a § 387 petition where the juvenile court ordered that the agency remove the child to a home it deemed safer and more suitable); see also (Lassen County Order of Detention, Ex. A to Def. Griffith's Request for Judicial Notice, filed May 8, 2007) (ordering that the minor plaintiffs be placed in the custody of Lassen County CPS and detained at a suitable place or home).³⁴ As such, under the circumstances in this case, defendant Lassen County did not have a mandatory duty to file a § 387 petition and obtain a court order. Thus, there is no basis for liability pursuant to this statute.

34 In analyzing defendant Lassen County's claim, the court takes judicial notice of the motion for summary judgment filed by defendant Loel Griffith and the exhibits submitted in support thereof.

Therefore, for the reasons set forth above, defendant Lassen County's motion for summary judgment regarding plaintiffs' state law claims is GRANTED.³⁵

35 To the extent that plaintiffs seek to hold defendant Lassen County liable on a theory of respondeat superior, for the reasons set forth above in the court's analysis of plaintiffs' state law claims against defendant Loel Griffith and defendant Terry Chapman, plaintiffs' state claims against Lassen County similarly fail.

V. Defendant Environmental Alternatives

A. Negligence

^{36 37}

36 It is unclear from plaintiffs' complaint whether they also alleged a claim for intentional infliction of emotional distress against defendant EA. The court does not address these allegations herein as plaintiff does not raise this claim in her opposition to the motions, and therefore, the court deems this claim waived.

37 Plaintiffs also assert that the court should not consider defendant EA's motions for summary judgment because the Amended Memorandum of Points and Authorities was filed late. However, the only change to the amended briefing was the deletion of one phrase and the insertion of a similar phrase as well as reformatting of the document to comply with the court's page limits. Because no substantive changes were made to defendant's timely filed motion, plaintiffs' request is DENIED.

In their complaint, plaintiffs allege that defendant EA was negligent because it "knew or had reason to know that a prior complaint had been made against the Defendant Barbara Coy for failure to protect another minor child placed in her home as a foster child against the physical and sexual abuse of her husband against that minor child." (Compl. ¶ 118). Defendants argue that it did not have any knowledge that plaintiffs were at risk of harm because it had no notice of Hank Coy's deviant propensities to molest children.

The gravamen of plaintiffs' claim for negligence against defendant EA is that it negligently continued to certify the Coy home as a foster home in the face of foreseeable injury to the minor plaintiffs by Hank Coy. (See Pls.' Opp'n to Def. EA's Mot. for Summ. J., filed May 21, 2007, at 3). As such, plaintiffs have adequately pled a claim for negligence based upon defendant's misfeasance, which "exists when the defendant is responsible for making the plaintiff's position worse, i.e. defendant has created a risk." Weirum v. RKO Gen., Inc., 15 Cal. 3d 40, 49 (1975); see also Jacoves v. United Merchandising Corp., 9 Cal. App. 4th 88, 114 n. 16 ("Misfeasance is the improper performance of an act that is otherwise proper and nonfeasance is the nonperformance of an act that should be performed.").³⁸

38 In both their complaint and opposition to defendant EA's motion, plaintiffs' allegations and arguments are most accurately interpreted as asserting a claim for negligence based upon a theory of misfeasance. As such, the court will only address this theory of negligence. However, to the extent that plaintiffs sought to argue a negligence claim based upon a theory of non-feasance, such a claim would likely fail for the reasons set forth, infra, regarding the foreseeability of the harm to defendant EA.

"Where the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care."Romero, 89 Cal. App. 4th at 1091 (quoting Weirum, 15 Cal. 3d at 49). California courts have applied a "policy-driven, multifactor weighing process for determining whether in a particular case a defendant owed a tort duty to a given plaintiff." Id. (citingRowland v. Christian, 69 Cal. 2d 108, 113 (1968)). These factors are non-exclusive and generally include:

(1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered harm; (3) the closeness of the connection between the defendant's conduct and the injury suffered; (4) the moral blame attached to defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; (7) the consequences to the community of imposing a duty to exercise care with resulting potential liability for breach of that duty; and (8) the availability, cost, and prevalence of insurance for the risk involved.³⁹

Id. (citing Parsons, 15 Cal. 4th at 472-73). However, "[t]he most important factor remains foreseeability." Margaret W., 139 Cal. App. 4th at 161.

39 Plaintiffs contend that there is general liability insurance policy that would cover this alleged negligence. However, plaintiffs fail to cite with any specificity what provision applies. However, even if insurance is available, on balance, for the reasons set forth infra, plaintiffs' misfeasance claim fails.

Defendant EA argues that the harm to plaintiffs, the physical and emotional injuries arising out of Hank Coy's molestation of female plaintiff J.M. and alleged molestation of female plaintiff A.B., was not foreseeable to defendant. Defendant presents evidence that Barbara Coy did not observe any conduct or behavior by her husband that caused her to think that he could endanger the safety of the children or gave her reason to believe that he would engage in inappropriate sexual acts toward a child. Defendant also presents evidence that Barbara Coy never informed anyone at EA or CPS that she thought her husband might be engaging in inappropriate sexual activity toward any child. Most importantly, plaintiffs admit that they are not aware of any evidence that EA had knowledge of the propensity of Hank Coy to engage in acts of sexual molestation or abuse of minors prior to the time that the minor plaintiffs were placed at the Coy home. (EUF ¶ 78).

Plaintiffs argue that defendant EA was negligent in placing the minor plaintiffs in the custody and care of a man and woman over sixty who had physical and mental disabilities. Plaintiffs contend that Barbara Coy had to use a walker and that Hank Coy had begun experiencing some signs of Alzheimer's disease, such as lethargy, and did not hear very well. However, plaintiffs present no evidence that plaintiffs' alleged injuries arising out of the molestation of female plaintiff J.M. and the alleged molestation of female plaintiff A.B. can be attributed to the Coys' age or disabilities. Plaintiffs present no evidence that age, Alzheimer's disease, lethargy, or hearing loss are predictors of child molestation such that defendant EA should have known that certification of the Coy home and placement of the minor plaintiffs with the Coys would lead to this type of alleged injury.

Plaintiffs also argue that defendant EA was negligent because it did not require the Coys to report their medical issues. As set forth above, plaintiffs fail to proffer any evidence that the Coys' medical issues caused the alleged injuries. As such, whether such issues were reported to EA is irrelevant to this court's inquiry into the negligence claim asserted in this case. Moreover, plaintiffs fail to proffer evidence that defendant EA did not require foster parents to disclose such medical issues. Plaintiffs only point to the absence of a requirement in the "Parent-EA Agreement" and the "Agency-Group Home Agreement." Neither of these one-page documents purports to set forth an all-inclusive statement of EA's policies. Rather, the "Parent-EA Agreement" refers to other training requirements, a child's program plan, licensing regulations, and state and federal laws and regulations, none of which are set forth in the one-page agreement. Therefore, the absence of a requirement in these two one-page documents is insufficient evidence that defendant EA did not require foster parents to disclose medical issues.

Plaintiffs further argue that the injury was foreseeable because there were other alleged incidents of abuse by the Coys as foster parents. Plaintiffs point to an allegation of spanking at the Coy home in 2002. Plaintiffs contend that this allegation was not reported to Community Care Licensing ("CCL"), the state agency responsible for investigating allegations of potential abuse in foster homes certified by private foster family agencies. Plaintiffs fail to present any evidence to support this assertion. Rather, they misstate the deposition testimony of Dan Switzer, an investigator for CCL, who testified that due to the way records are kept at CCL, he was not aware whether this complaints were referred to investigation. (Dep. of Dan Switzer ("Switzer Dep.") at 45:7-46:7). He did not testify that it was not reported to CCL by EA. Moreover, defendants present evidence that EA reported the incident to CCL and Lassen County CPS and that no disciplinary action was taken. (Decl. of Samuel James Hardee in Supp. of Def. EA's Mot. for Summ. J. ("Hardee Decl."), filed May 8, 2007, ¶ 7). The Coys were subsequently counseled by EA regarding this matter. (Id.) Defendants also present evidence that such an incident did not warrant revocation of the Coy foster family certification. (Id.) Finally, the spanking incident did not involved any sexualized or criminal behavior by Hank Coy. (Id.) Therefore, this reported allegation of a spanking incident at the Coy home did not put EA on notice that it should not certify the Coy home because of Hank Coy's deviant propensities towards children.

Plaintiffs also argue that defendant EA was negligent in its certification of the Coy home in light of the fact that one or more foster children at the Coy home in approximately 2002 had a bed-wetting problem. Plaintiffs base their argument on the broad assertion that bed-wetting is necessarily indicative of sexual molestation, without any expert testimony to support that assertion.⁴⁰ There is no evidence that sexual abuse was the cause of the childrens' bed-wetting problem or that it was even suspected. Moreover, there is no evidence that sexual abuse by Hank Coy was the cause of the bed-wetting or even suspected. As such, the fact that children who were in foster care at the Coy home had bed-wetting problems did not put defendant EA on notice that it should not certify the Coy home because of Hank Coy's deviant propensities.

40 At best, plaintiffs cite to the deposition testimony of Dan Switzer, who stated that bed-wetting could be indicative of molestation. (Switzer Dep. at 66:3-15). Switzer did not testify that bed-wetting was necessarily a "red flag" for sexual molestation as argued by plaintiffs.

Finally, plaintiffs argue that defendant EA failed to report behavior changes in female plaintiff J.M., such as touching another child inappropriately at school and kicking and spitting at her foster father. Plaintiffs contend that EA was negligent in failing to identify these behaviors as signs of sexual abuse. Plaintiffs present evidence that in September 2003, defendant Coy spoke to Oliviera regarding J.M.'s behavior, such as striking and spitting on Hank Coy. Oliviera never observed any of this behavior. Oliviera informed defendant that these behaviors sounded like what a child would do if they had been molested. Oliviera further informed defendant that she thought that the children had probably been molested before they were placed in defendant's care. While this evidence may demonstrate that defendant EA had notice that J.M. was exhibiting signs of molestation, this information did not put defendant on notice of when the molestation occurred or that Hank Coy was the perpetrator. Therefore, the change in female plaintiff J.M.'s behavior did not put EA on notice that Hank Coy was molesting any of the minor children.

Under the circumstances in this case, the consideration and balance of the Rowland factors militates against finding that defendant EA owed a duty of care to plaintiffs under principles of ordinary negligence. First, as set forth above, plaintiffs have presented no evidence to support a reasonable inference that defendant had notice that Hank Coy would sexually molest a child. As such, the risk of the harm that occurred in this case was not reasonably foreseeable, a critical aspect of imposing a legal duty on defendant that informs many of the following factors. See Romero, 89 Cal. App. 4th at 1092; see also Margaret W. v. Kelley R., 139 Cal. App. 4th 141, 161 (2006) (finding that the remainingRowland factors could not overcome the lack of foreseeability).

None of the parties dispute that at least one of the minor plaintiffs was molested by Hank Coy. However, where there is no evidence that defendant knew the Coy home would be unsafe due to Hank Coy's deviant propensities, there is only a tenuous connection between defendant EA's conduct in certifying the Coy home for foster care and the subsequent abuse of a foster child by Hank Coy. Further, because the conduct of Hank Coy was not reasonably foreseeable, defendant's certification of the Coy home was not morally blameworthy. See id. at 1093. This is particularly true where the undisputed evidence demonstrates that Oliviera documented 10 visits and at least six calls to the Coy home between May 5, 2003 and September 29, 2003. In response to reports of changes in female plaintiff J.M.'s behavior, Oliviera went to the Coy home and talked to the minor plaintiffs as she had been trained to do. Oliviera believed that the reason female plaintiff J.M. was angry with Hank Coy was because she had been suspended from school and took out her frustration on Hank Coy. Oliviera also believed and discussed with T. Chapman that foster children begin to act out after they start visiting their biological parents and return to their foster parents. As such, the undisputed evidence demonstrates that defendant EA responded to J.M.'s changes in behavior, despite that fact that it had no prior notice of Hank Coy's deviant propensities.

Moreover, the policy of preventing future harm would not be served by imposing liability in this case, where the risk of harm to the children was not reasonably foreseeable by defendant. See id at 1093-94. If foster family agencies are required to file a suspected child abuse report or terminate placement each and every time a child in foster care acts out at school or against a foster parent, the foster care system would be unmanageable. Children placed in the foster care system are inherently placed in a highly stressful and emotional situation, arising out of their removal from an equally stressful and likely dangerous situation. These children may respond by acting out against their foster parents. To require foster family agencies to immediately terminate such placements would add more chaos and instability to the lives of these children. To require foster family agencies to submit vague and nonspecific suspected child abuse reports based upon isolated instances of hitting and kicking of a foster parent would substantially burden already overburdened law enforcement agencies, CCL, and county child protective agencies. Therefore, as in this case, where the only indication of abuse that plaintiffs can point to are isolated instances of acting out after the foster home had been certified and without any prior knowledge of deviant propensities of a foster parent, public policy dictates against imposing liability.

As such, after consideration of the Rowland factors in the circumstances of this case, the court finds that defendant EA did not owe plaintiffs a duty of care under general negligence principles. Therefore, defendant EA's motion for summary judgment regarding plaintiffs' negligence claim is GRANTED.

B. Negligence Per Se

In their opposition, plaintiffs for the first time contend that defendant EA is liable for negligence per se for Oliviera's failure to report allegations of abuse pursuant to California Penal Code § 11165.9. Even under liberal notice pleading standards, plaintiffs did not allege a claim for negligence in their complaint based upon defendant Oliviera's failure to report. Rather, the crux of plaintiffs' claim is that defendant had knowledge of Hank Coy's propensity for abuse and continued to certify the Coy home for foster care, which led to plaintiffs' injuries. Nowhere in plaintiffs' complaint is there an allegation regarding defendant EA's failure to report.

Whether or not defendant EA or Oliviera properly reported suspected child abuse after receiving information from Barbara Coy or after observing behaviors of the minor plaintiffs is a fact that has not changed since the filing of the complaint. To the extent that facts were obtained in discovery which led to the assertion of this theory, plaintiffs do not identify when such facts were obtained, nor do they contend that amendment of the complaint was requested promptly after the plaintiffs obtained such knowledge. Therefore, plaintiffs have failed to demonstrate "good cause" to add a claim based upon defendant Coy's alleged failure to report. Furthermore, even if such "good cause" could be demonstrated, plaintiffs have failed to proffer any argument that the interests of justice require granting plaintiffs leave to amend their complaint at this late stage in the proceedings. As such, the court does not consider the merits of plaintiffs' negligence per se claim.

C. Breach of Contract

Finally, the minor plaintiffs contend that defendant EA breached its contract with Lassen County CPS, to which they claim they were intended third party beneficiaries.⁴¹ Plaintiffs' opposition completely fails to respond to defendant EA's points and authorities regarding the breach of contract claim. Plaintiffs also fail to articulate what contractual term EA allegedly breached. (EUF ¶ 79). However, construing plaintiffs' woefully inadequate briefing in the light most favorable to them, plaintiffs contend that defendant EA breached the contract because no EA representative reported female plaintiff J.M.'s change in behavior to Lassen County CPS. Plaintiffs' asserted evidence in support of this claim, the deposition testimony of Barbara Coy,⁴² does not support this contention. Further, it is undisputed that Oliviera spoke to T. Chapman at Lassen County CPS regarding the change in J.M.'s behavior. (EUF ¶ 45). Therefore, because plaintiffs have failed to articulate any cogent argument or proffer any evidence in support of their claim, defendant EA's motion for summary judgment regarding plaintiffs' claim for breach of contract is GRANTED.

41 It appears that defendant EA and Lassen County entered into an "Agency-Group Home Agreement" despite the fact that the minor plaintiffs were placed in foster care, not in a group home. As such, the terms of this contract are seemingly inapplicable. However, for the reasons set forth infra, plaintiffs' breach of contract claim fails for plaintiffs' inability to proffer any cognizable argument or evidence.

42 The court also notes the irony that the one piece of evidence plaintiffs cite to is the deposition of Barbara Coy, which they have continuously sought to have stricken as wholly lacking in credibility.

CONCLUSION

Based on the foregoing analysis, the court makes the following orders:

1. Defendants Hanson, Dahle, Keefer, Pyle, and J. Chapman's Motion for Summary Judgment is GRANTED.

2. Defendant Loel Griffith's Motion for Summary Judgment is GRANTED.

3. Defendant Terry Chapman's Motion for Summary Judgment:

a. regarding plaintiffs' § 1983 claims arising out of the pre-hearing detention of the minor children is DENIED.

b. regarding the remainder of plaintiffs' claims is GRANTED.

4. Defendant Lassen County's Motion for Summary Judgment is GRANTED.

5. Defendant Environmental Alternative's Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.