Opinion
Civil No. 05CV0206 J (RBB).
March 3, 2006
ORDER: GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants County of San Diego and Christina Chesak's ("Defendants") Motion for Summary Judgment ("Motion") on all claims in Plaintiff Tammy Searle's ("Plaintiff") Second Amended Complaint ("SAC"). [Doc. No. 36.] Plaintiff has filed an Opposition to the Motion ("Opposition"); and Defendants have filed a Reply to the Opposition ("Reply"). [Doc. Nos. 44, 48.] The Court also ordered and received supplemental briefing from both parties. [Doc. Nos. 56, 58, 60.] Pursuant to Civil Local Rule 7.1.d.1, the Court decides the matter on the pleadings submitted and without oral argument. See S.D. Cal. Civ. R. 7.1.d.1 (2005). For the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment.
Background Facts
I. Facts from Plaintiff's PerspectiveThe following facts are from Plaintiff's perspective in compliance with the summary judgment standard set forth below. Plaintiff claims she is a resident of the City of Vista in the County of San Diego, and states she was legally in California with her daughter Alexis pursuant to a June 1999 move-away order obtained from a competent court in the State of Tennessee. ( See Pl.'s SAC at 1; Pl.'s P. A., Opp'n, at 2.) Defendant County of San Diego ("County") is a public entity, which operates an agency named the Polinsky Children's Center ("PCC"). ( See Pl.'s SAC at 1.) Defendant Christina Chesak ("Chesak") is a resident of San Diego County and was an employee of PCC at the time of the alleged incident. ( See id. at 1-2.)
On or about June 17, 2003, San Diego Sheriff's deputies entered Plaintiff's home and arrested Plaintiff for being a fugitive from the State of Tennessee. ( See id.) Plaintiff was told there was a warrant for her arrest in Tennessee for felony child abduction and kidnapping. ( See id. at 3.) Plaintiff was taken to the Vista Station where she was eventually held in the felony section of the Vista County Jail until her arraignment on June 20, 2003. ( See id.)
Plaintiff's daughter, Alexis, also was taken to Vista Station with Plaintiff. ( See id.) While Plaintiff was in custody, Plaintiff's daughter was transported to PCC. ( See id.) After being contacted by Plaintiff, Plaintiff's former husband and Alexis' stepfather, Daniel "Dino" Moretti ("Moretti"), went to PCC to take care of Alexis until bail was established for Plaintiff. ( See Pl.'s P. A., Opp'n, at 2-3.) However, Chesak refused to allow Moretti to take Alexis. ( See id.) Chesak told Moretti that Alexis was being sent to Tennessee with Keith Pfister ("Pfister"). ( See id. at 3.)
On June 18, 2003, Chesak allowed Alexis' biological father, Pfister, to take Alexis from PCC without a judicial hearing. ( See Pl.'s SAC at 5; Pl.'s P. A., Opp'n, at 2.) Pfister had post-June 1999 Tennessee custody orders giving him custody of Alexis. ( See Pl.'s P. A., Opp'n, at 2.) However, the Tennessee court orders in Pfister's possession had never been registered in the State of California. ( See Pl.'s Opp'n at 2.) Plaintiff believes Pfister then took Alexis out of California. ( See Pl.'s SAC at 5.)
II. Undisputed Facts
The following facts are not in dispute by the parties: (1) Plaintiff is an individual and at all times mentioned in the SAC was a resident of the City of Vista, County of San Diego; (2) Defendant County of San Diego, a public entity organized and existing under the laws of the State of California, operates PCC; (3) Defendant Chesak is an individual, and at all relevant times mentioned in the SAC, was a resident of San Diego County and an employee of PCC; (4) the Sheriff's deputies told Plaintiff that she was listed in the National Crime Information Center database, which showed a warrant for her arrest in Tennessee; (5) at some point while Plaintiff was in custody by the Sheriff's Department, Plaintiff's daughter was taken and transported to PCC; and (6) Keith Pfister is the biological father of Alexis and was allowed to take custody of Alexis on June 20, 2003 while Plaintiff was incarcerated in Vista County Jail. ( See Pl.'s SAC at 1-5; Defs.' Answer at 1-2.)
Procedural History
I. Prior to Plaintiff's Complaint
Pursuant to the Federal Rule of Evidence 201(b), this Court recognizes the following prior judicial proceedings in the State of Tennessee and in Los Angeles Superior Court.
On June 23, 1999, the Juvenile Court of Williamson County in Tennessee ("Tennessee court") granted Plaintiff's request to relocate from Tennessee to California with her minor daughter Alexis. ( See Pl.'s Opp'n, Mot. to Dismiss, at 2.) On October 13, 2000, Plaintiff filed in Los Angeles Superior Court a Petition for Registration of Foreign Child-Custody Order. (Ex. G to Defs.' Notice of Lodgm't in Support of Mot. for Summ. J.) On June 28, 2001, after a hearing on the matter, the Los Angeles Superior Court determined that "Tennessee is the appropriate forum for modification of custody and visitation." (Ex. I to Defs.' Notice of Lodgm't in Support of Mot. for Summ. J.)
In an Order, entered on June 11, 2001, the Tennessee court retained subject matter jurisdiction over matters relating to the custody of Alexis and denied Plaintiff's motion to transfer jurisdiction from Tennessee to California. (Ex. K to Defs.' Notice of Lodgm't in Support of Mot. for Summ. J.)
On July 3, 2001, the Tennessee court issued an Order finding Plaintiff in criminal contempt for failing to appear before the court on June 14, 2001, to produce the parties' minor child in court on June 14, 2001, and to file with the court documentary proof of an alleged trip to Hong Kong that she had intended to take in June 2001. (Ex. C to Defs.' Notice of Lodgm't in Support of Mot. for Summ. J.) In the same Order, the Tennessee court also granted temporary custody of Alexis to Pfister. ( Id.)
On October 4, 2001, the Tennessee court granted Pfister permanent custody of Alexis after finding that "Respondent, Tammy Searle Moretti, continues to violate the Orders of the Court with respect to the parties' minor child." (Ex. E to Defs.' Notice of Lodgm't in Support of Mot. for Summ. J.)
II. Plaintiff's Complaint and Subsequent Motions
On December 20, 2004, Plaintiff filed suit in the San Diego Superior Court against Defendant, as well as the County of San Diego and other individual defendants, alleging violation of 42 U.S.C. § 1983, negligence, false imprisonment, conspiracy, intentional infliction of emotional distress, and kidnapping. [Doc. No. 1.] On February 2, 2005, Defendant County of San Diego removed the action to federal court. [ See id.] Plaintiff alleges the following causes of action in its First Amended Complaint ("FAC"): 1) violation of 42 U.S.C. § 1983; 2) false imprisonment; 3) intentional infliction of emotional distress ("IIED"); and 4) kidnapping. ( See generally, Pl.'s FAC.)
On February 24, 2005, Defendant Keith Pfister filed a Motion to Dismiss for lack of personal jurisdiction, or alternatively, to transfer the case for improper venue. [Doc. No. 7.] On March 25, 2005, the Court issued an Order denying Defendant Pfister's Motion to Dismiss. [Doc. No. 21.]
On March 9, 2005, Defendant San Diego County, Defendant T J Byrnes, Defendant Sergeant Musgrave, and Defendant Chesak (erroneously sued as "Christina Sanchez") filed a Motion to Dismiss pursuant to Federal Rule of Procedure 12(b)(6). [Doc. No. 9.] On April 25, 2005, the Court granted in part and denied in part the Motion to Dismiss. [Doc. No. 30.] In denying Defendants' Motion to Dismiss with respect to Plaintiff's state law claims, this Court held that it "cannot find that Defendant is protected by the absolute immunity described in [California Government Code] Section 821.6" because at that "early state in the litigation, considering only the allegations of the FAC, the Court [could not] conclude that Defendant's release of Alexis was part of either a judicial or administrative proceeding or investigation in preparation for such a proceeding." (Order, Defs.' Mot. to Dismiss, at 4.) Similarly, the Court refused to dismiss Plaintiff's Section 1983 claims based on absolute immunity because the Court found that the FAC had not alleged that Chesak's actions was intimately associated with the judicial process. ( Id. at 5.) However, the Court ultimately granted Chesak's Motion to Dismiss Plaintiff's § 1983 claims, finding that Chesak was protected by qualified immunity because Chesak's act of releasing Alexis into another individual's custody did not violate Alexis' Fourth Amendment right to be free from unlawful searches and seizures. ( Id. at 7.) The Court allowed Plaintiff until May 13, 2005 to file an amended complaint that sufficiently alleged violation of a constitutional right. ( Id.)
On May 13, 2005, Plaintiff filed a Second Amended Complaint ("SAC") terminating as defendants in the suit Sergeant Musgrave, Keith Pfister, Christina Sanchez, T J Barnes; and adding Defendant Christina Chesak. [Doc. No. 32.] Plaintiff in her SAC asserts the following claims: (1) Defendant County, through PCC, was negligent in hiring, training, retention, discipline, and supervision of Defendant Chesak and Does 1 through 20; (2) Defendant Chesak was negligent in permitting Alexis to be removed from PCC by her biological father without following California Welfare Institution Code Section 300 et seq. and relevant County policies and procedures; (3) Defendant Chesak violated Plaintiff's First and Fourth Amendment rights of family association and to be free to live with her daughter without governmental interference by allowing Plaintiff's daughter to be removed from PCC without having a judicial hearing; and (4) all Defendants committed IIED against Plaintiff. ( See Pl.'s SAC at 5-9.) On May 26, 2005. Defendant San Diego County and Defendant Chesak filed an Answer to Plaintiff's SAC ("Answer"). [Doc. No. 35.]
On August 3, 2005, Defendant San Diego County, Defendant T J Barnes, Defendant Sergeant Musgrave, and Defendant Chesak filed a Motion for Summary Judgment. [Doc. No. 36.] In their Summary Judgment Motion, Defendants request that either the Court enter judgment in their favor or refrain from exercising jurisdiction and refer Plaintiff back to Tennessee court. (Defs.' P. A., Mot. for Summ. J., at 20.) On August 25, 2005, the Court granted Plaintiff's ex parte application to continue the hearing date on Defendants' Motion for Summary Judgment to October 31, 2005. [Doc. No. 42.] On October, 17, 2005, Plaintiff filed an Opposition to Defendant's Motion. [Doc. No. 44.] On October 24, 2005, Defendants San Diego County and Chesak submitted a Reply to Plaintiff's Opposition. [Doc. No. 48.]
On March 10, 2006, this Court ordered supplemental briefing on Defendants' Motion for Summary Judgment. [Doc. No. 56.] On March 17, 2006, Defendants filed the requested Supplemental Brief; and on March 24, 2005, Plaintiff filed a Supplemental Brief in Opposition to Motion for Summary Judgement. [Doc. Nos. 58, 60.]
Although Plaintiff argues that it is unfair for the Court to order supplemental briefing on Defendants' Motion for Summary Judgment, this Court FINDS it has the discretion to do so. ( See Pl.'s Suppl. Brief in Opp'n at 1-2.) A district court has the discretion to grant summary judgment on grounds not contained in the initial briefing papers as long as the losing party has an opportunity to state its arguments on the relevant issues. See Cunningham v. Rothery, 143 F.3d 546, 549 (9th Cir. 1998) (citations omitted) ("[A] court may grant summary judgment [even] without notice if the losing party has had a `full and fair opportunity to ventilate the issues involved in the motion.'"); see also Maitland v. Mitchell, 44 F.3d 1431, 1439-40 (9th Cir. 1995). Plaintiff's Supplemental Brief also objects to Defendants exceeding the ten-page limit set by the Court for the supplemental briefing. ( See Pl.'s Suppl. Brief in Opp'n at 1-2.) However, Plaintiff's supplemental brief also exceeded the ten-page limit set by the Court. Thus, the Court IS NOT considering past page ten of either Defendants' or Plaintiff's supplemental briefings.
Legal Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure on "all or any part" of a claim where there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a) (c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See Celetox, 477 U.S. at 323-24. A fact is material when, under the governing substantive law, the fact might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. When making its determination, the Court must view all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).The party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element to that party's case on which that party will bear the burden of proof at trial. See id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress Co., 398 U.S. 144, 159-60 (1970).
If the moving party meets the initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing there is a genuine issue for trial." Anderson, 477 U.S. at 256. "The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient." Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252); see also Matsushita, 475 U.S. at 586 (if the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment by merely demonstrating "that there is some metaphysical doubt as to the material facts"). It is insufficient for the party opposing summary judgment to "rest on mere allegations or denials of his pleadings." Id. Rather, the party opposing summary judgment must "by her own affidavits, or by `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P 56(e)). "Disputes over over irrelevant or unnecessary facts will not preclude a grant of summary judgment." See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In addition, the Court is not obligated "to scour the records in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). "[T]he district court may limit its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001).
"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 587 (citing First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289 (1968). Moreover, "[a] district court must enter summary judgment against a party who fails to make a showing sufficient to establish an essential element of a claim, even if genuine factual disputes exist regarding other elements of the claim." Cunningham v. City of Wenatchee, 214 F. Supp. 2d 1103, 1110 (E.D. Wash. 2002) (citing Celotex, 477 U.S. at 323-24.)
Discussion
I. Chesak's Immunity From 42 U.S.C. § 1983 Claim
Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983, alleging that Defendants violated Plaintiff's First and Fourteenth Amendment rights to family association and to be free to live with her daughter without governmental interference. ( See Pl.'s SAC at 8.) Defendants move for summary judgment on Plaintiff's § 1983 claim, arguing that Defendant Chesak is protected from suit by both absolute and qualified immunity. (Defs.' Mot. for Summ. J. at 2.) For the below stated reasons, the Court FINDS that although Chesak's actions are not protected by absolute immunity, she does have qualified immunity. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's Section 1983 claim.
Section 1983 specifically allows a party to bring a civil action for constitutional deprivations against persons acting under color of state law. Section 1983 provides in relevant part:
Every person who, under color of . . . any state [law], subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983 (2005). To state a claim under section 1983, the plaintiff must allege that the defendant deprived him of a right secured by federal law. See Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995). A person deprives another of a constitutional right, within the meaning of section 1983, if she or he commits an affirmative act or omits to perform an act that causes a plaintiff to be deprived of his rights. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1998).
A. Absolute Immunity
Generally, "state actors, including social workers, who perform functions that are `critical to the judicial process itself' are entitled to absolute immunity." Doe v. Lebbos, 348 F.3d 820, 825 (9th Cir. 2003) (citations omitted); Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (en banc). "[S]ocial workers are entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings." Meyers v. Contra Costa County Dep't of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987); Miller, 335 F.3d at 898. However, social workers do not have absolute immunity when they choose not to initiate and pursue child dependency proceedings, but rather to release the child into another's custody. See Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991). In Caldwell, 928 F.2d at 333, the Ninth Circuit determined that qualified immunity, rather than absolute immunity applied, because "the procedure of transporting the children out of Montana to their mother in Washington seemed designed to avoid adjudication in the Montana courts altogether." The court reasoned that the social workers' actions did not aid in the preparation or presentation of a case to the juvenile court, nor were their actions taken in connection with or incident to ongoing child dependency proceedings. See id.; see also Meyers, 812 F.2d at 1158 (social worker's actions taken before institution of judicial proceedings was not covered by absolute immunity because the social worker "himself was not subject to the checks operating on judicial decisionmakers, nor was his decision part of or ancillary to pending judicial proceedings supervised by a judge"). See generally Fletcher v. Kalina, 93 F.3d 653, 655 (9th Cir. 1996) (when prosecutors perform "administrative or investigative, rather than advocacy, functions they do not receive absolute immunity.").
Here, Defendant Chesak's actions are not protected by absolute immunity because she was not engaging in the quasi-prosecutorial function of initiating or pursuing a child dependency proceeding. Similar to Caldwell, Chesak did not have to file a dependency petition because she allowed Pfister to take Alexis. She based her decision on findings that Pfister had been awarded full custody of Alexis by the Tennessee court, and was willing and able to take Alexis. See Caldwell, 928 F.2d at 333; see also Santos v. County of L.A. Dep't of Children Family Servs., 299 F. Supp. 2d 1070, 1079 (C.D. Cal. 2003) (social workers' actions, including the "removal of the minors from plaintiff's custody . . . and the placement of the minors in alternate housing situations, without returning the minors to plaintiff . . . are not entitled to absolute immunity. . . .")
Furthermore, Defendants' reliance upon Hennessey v. State of Wash., Dept. of Social and Health Services, 627 F. Supp. 137, 138 (E.D. Wash. 1985), is misplaced because the facts of that case are distinguishable from this one. Hennessey involved claims against a social worker for giving false and misleading information that led to the initiation of dependency proceedings. See id. at 138. In contrast, here, Chesak's act of giving the child to Pfister did not lead to dependency proceedings. Accordingly, the Court FINDS Defendant Chesak is not entitled to absolute immunity from Plaintiff's Section 1983 claim because Chesak did not commit the alleged Section 1983 violations pursuant to the initiation of a dependency petition with a court.
B. Qualified Immunity
Because Chesak does not have absolute immunity, the Court will now address Defendants' alternative argument that qualified immunity shields Chesak from Section 1983 claims. (Defs.' P. A., Mot. for Summ. J., at 11.) See generally Miller, 335 F.3d at 897 ("Beyond those functions historically recognized as absolutely immune at common law, qualified and only qualified immunity exists."). In arguing that Defendant Chesak was not acting under the supervision of a court, Plaintiff concedes that the qualified immunity standard governs Chesak's conduct. ( See Pl.'s Opp'n at 8.); see Caldwell, 928 F.2d at 333 (social workers had qualified immunity, not absolute immunity, for removing minors from parent without warrant and transporting minors out of state); see also Miller, 335 F.3d at 898 ("Examples of . . . functions [for which qualified, rather than absolute, immunity is available] may include decisions and recommendations as to the particular home where a child is to go or as to the particular foster parents who are to provide care."). For the reasons set forth below, this Court FINDS Defendant Chesak's actions of giving Alexis to Pfister are shielded by qualified immunity, and GRANTS Defendants' Motion for Summary Judgment with respect to Plaintiff's Section 1983 claims.
In determining whether a government officer has qualified immunity, i.e., immunity from suit, the Court must undertake a two-step inquiry. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001). First, the Court must determine the threshold question, "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. Second, if the official's conduct violated a constitutional right, the Court must then inquire whether "the right was clearly established," which means that "it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Id. at 202; see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.") (citations omitted).
1. Violation of a Protected Constitutional Right Has Not Been Alleged
To state a Section 1983 claim against defendant social workers in their individual capacities, Plaintiff must allege deprivation of a constitutionally or federally protected right. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); see also West v. Atkins, 487 U.S. 42, 48 (1988). Here, the gravamen of Plaintiff's SAC is that Chesak's decision to allow Pfister to remove Alexis from PCC deprived Plaintiff of her "First and Fourteenth Amendment rights of family association and to be free to live with her daughter without government interference." (Pl.'s SAC at 7-8.) In their Motion for Summary Judgment, Defendants do not dispute that the Due Process Clause of the Fourteenth Amendment protects the liberty interests of parents and children to live together without government interference except in emergencies. (Defs.' P. A., Mot. for Summ. J. at 11.) However, Defendants argue that Plaintiff's Fourteenth Amendment rights were not violated because "[P]laintiff had already been given due process before her custody rights were revoked." (Defs.' P. A., Mot. for Summ. J., at 13.)
As Defendants correctly argue, whereas the Fourteenth Amendment protects the right to family association, the First Amendment protects the right to associate for the purpose of engaging in designated protected activities. ( See Defs.' Suppl. Brief at 6-7.) Compare IDK, Inc. v. County of Clark, 836 F.2d 1185, 1192 (9th Cir. 1988) ("In protecting a `certain kinds of highly personal relationships,' the Supreme Court has most often identified the source of the protection as the due process clause of the fourteenth amendment, not the first amendment's freedom to assemble.") (citation omitted), with Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984) ("[T]he Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion."). Because Plaintiff has not alleged that she was engaging in one of the activities protected by the First Amendment, the Court FINDS Plaintiff's 1983 has not alleged facts to support a First Amendment violation.
Taken in the light most favorable to Plaintiff, the facts alleged simply do not show that Chesak violated Plaintiff's constitutional rights by giving Alexis to Pfister. In Campbell v. Burt, 141 F.3d 927, 928 (9th Cir. 1998), the Ninth Circuit held that a non-custodial father's due process rights were not violated by a social worker taking custody of his children and not filing a dependency petition within two days of taking custody. The Court reasoned that "in all the cases establishing due process violations for removing children from parental custody, the parent actually had legal custody over the children." Id. at 929.
Here, Plaintiff has not alleged facts or presented evidence showing that she had any custodial rights to Alexis. (See generally Pl.'s SAC; Pl.'s Opp'n.) In fact, Plaintiff states she was arrested for being a "fugitive from Tennessee because she had kidnapped her daughter and was hiding in California." (Pl.'s SAC at 3.) In contrast, the evidence shows that Pfister had a right to take Alexis. Plaintiff admits that Pfister is the biological father of Alexis. ( See id. at 5-6.) Also, Plaintiff concedes that Pfister had a "foreign child custody judgment." ( Id. at 7-8; see also Ex. E to Defs.' Notice of Lodgm't in Support of Mot. for Summ. J.) Moreover, although Plaintiff asserts that Pfister should have registered the Tennessee court orders with the State of California, Plaintiff has cited no case holding that a social worker's act of giving a minor to a biological parent with custody documents, which had not been authenticated or registered, violates a constitutional right. ( See Pl.'s Suppl. Brief in Opp'n at 6.) Plaintiff also does not challenge the validity of the Tennessee court orders granting temporary and permanent custody of Alexis to Pfister.
In addition, a review of the procedural history of the custody dispute over Alexis in Tennessee court finds that Plaintiff was indeed given ample opportunity to contest the granting of custody to Pfister. ( See Exs. C, E, N O to Defs.' Lodgm't in Support of Mot. for Summ. J.) Moreover, it is undisputed by Plaintiff that she failed to take these opportunities. Plaintiff did not appear at several hearings in Tennessee court regarding custody and visitation rights. ( See Ex. C to Defs.' Lodgm't in Support of Mot. for Summ. J.) Because Plaintiff lost custody of Alexis as the result of her failure to appear before the Tennessee court, Chesak did not violate Plaintiff's due process rights by giving Alexis to Pfister in accordance with the Tennessee court orders granting custody to Pfister.
Also, as Defendants point out, Plaintiff did not have a right to have Chesak give Alexis to Plaintiff's ex-husband, Moretti, because Pfister had full custody of Alexis and was willing to take the minor. Under California Welfare and Institution Code § 309, Chesak was justified in releasing Alexis to Pfister because her investigation found that Pfister was Alexis' father and that he was willing and able to take the minor. See Cal. Wel. Inst. Code 309(a) (2006) ("Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the child's being taken into custody and attempt to maintain the child with the child's family through the provision of services."); see also In re Phoenix B., 218 Cal. App. 3d 787, 792 (1990). In contrast, Moretti, as Pfister's ex-husband, had no legal right to take Alexis because he was not her legal guardian. See In re Jodi B., 227 Cal. App. 3d 1322, 1329 (Cal.Ct.App. 1991) (holding because a stepparent was not a "parent" for purposes of reunification of a child removed from the home in the course of a proceeding under Cal. Wel. Inst. Code § 300, a stepparent had no independent right to services designed to return the child to parental custody).
Plaintiff also was not entitled to have Chesak initiate a dependency hearing because the juvenile court does not have jurisdiction over nondependent children. See In re Phoenix B., 218 Cal. App. 3d at 794-95 (where father was available and willing to take child and mother was involuntarily hospitalized for a mental breakdown, juvenile court properly dismissed the dependency petition because it lacked jurisdiction "to resolve custody disputes concerning nondependent children"); see also Caldwell, 928 F.2d at 333-34. Instead, Plaintiff should return to Tennessee court if she wishes to assert her concerns about Pfister's fitness as parent and to try to obtain custody of Alexis. ( See Ex. I to Defs.' Lodgm't in Support of Mot. for Summ. J.) See also Caldwell, 928 F.2d at 334 ("Generally, once a court takes jurisdiction over children and enters a custody decree, that court retains jurisdiction over custody issues that arise after the children leave that jurisdiction.") (citing Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A(d) (1988)); In re Phoenix B., 218 Cal. App. 3d at 794-95 (advising appellate "to assert her custody rights in a family proceeding in superior court."); Santos, 299 F. Supp. 2d at 1077 n. 9 (C.D. Cal. 2004) ("to the extent plaintiff is attacking the Los Angeles County Superior Court's custody decision regarding [the child], this Court is precluded from addressing that matter" due to lack of subject matter jurisdiction). Accordingly, the Court FINDS that Plaintiff has not alleged violation of a constitutionally-protected right.
Plaintiff's argument that Defendant Chesak is not entitled to qualified immunity because Chesak violated state statutes and county policies also fails. (Pl.'s Opp'n at 9-10.) As Defendants correctly argue, violations of state law generally do not lead to liability under § 1983. See Campbell, 141 F.3d at 930; see also Davis v. Scherer, 468 U.S. 183, 194 (1984) ("Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision."). Moreover, this case does not fall within the prisoner's rights exception carved out by courts to the general rule. See Sandin v. Conner, 515 U.S. 472, 493-84 (1995) ("We recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. . . . But these interests will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.") (citation omitted). Thus, the Court FINDS Plaintiff has not alleged a Constitutional or state law violation that would warrant denying Chesak qualified immunity.
2. Alleged Constitutional Right Is Not Clearly Established
The Court also FINDS Plaintiff has not alleged violations of a clearly established Due Process right because Plaintiff has not claimed or asserted any evidence showing she had legal custody of Alexis. See Grossman v. City of Portland, 33 F.3d 1200, 1208 (9th Cir. 1994). In Caldwell, 928 F.2d at 334, the appeals court held that when children are placed in the care of a consenting legal custodian, the parent from whom physical custody over the child is removed does not have a clearly established constitutional right to a state-initiated hearing. Here, Plaintiff has not alleged violation of a clearly established right because, like Caldwell, Alexis was placed in the care of Pfister, a consenting parent who had legal custody. Thus, Plaintiff was not entitled to Chesak initiating a dependency hearing.
Further, Plaintiff erroneously relies on In Re S.D., 99 Cal. App. 4th 1068 (Cal.Ct.App. 2002), to argue that Chesak's refusal to follow Plaintiff's arrangement for Moretti to take care of Alexis violated her constitutional rights. (Pl.'s Opp'n at 9-10; Pl.'s Suppl. Brief in Opp'n. at 45.) In In Re S.D., the appellate court held that a lower court did not have jurisdiction to take custody of a child where the incarcerated parent had arranged for care of the child. See id. at 1071. However, In Re S.D. is distinguishable. First, the instant case, unlike In Re S.D., does not involve a court taking custody of a child away from the plaintiff parent. Second, whereas in In Re S.D., the father's whereabouts were unknown despite the social services agency's extensive efforts to contact him in two states, here, Pfister was willing and able to take Alexis. Finally, in In Re S.D., there was no dispute as to the mother's legal custody of the child. In contrast, here, Plaintiff has not alleged or presented evidence showing that she had custody of Alexis. Thus, although Plaintiff claimed to have arranged for her ex-husband to take Alexis, Chesak did not violate an established constitutional right by refusing to follow Plaintiff's instructions.
Accordingly, because Chesak is entitled to qualified immunity, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's § 1983 claim.
II. 42 U.S.C. § 1983 Claim Against County
Defendants also move to for summary judgment on Plaintiff's Section 1983 claims against Defendant County. (Defs.' P. A., Mot. for Summ. J., at 16-18.) Plaintiff does not oppose Defendants' argument that Plaintiff failed to make a sufficient Section 1983 claim against the County. ( See generally Pl.'s Opp'n.)
Plaintiff in her SAC is unclear as to whether she is asserting a Section 1983 claim against Defendant County, in addition to Defendant Chesak. She entitled her third cause of action "Violation of Civil Rights as to Defendant Chesak," but makes allegations against the County within that section. ( See Pl.'s SAC at 6-8). The Court assumes for only the purpose of responding to Defendants' Motion for Summary Judgment that Plaintiff has asserted Section 1983 claims against the County.
A municipality can be sued for "constitutional deprivations visited pursuant to governmental custom." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). To establish liability, Plaintiff must show that (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." Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). As the Court has found in its analysis of Plaintiff's Section 1983 claims against Chesak, Plaintiff has not shown that she was deprived of a constitutional right. She did not have legal custody of Alexis, did not have a right to have Chesak follow her take care arrangements for Alexis, and was not entitled to a dependency hearing. Plaintiff also has failed to assert facts or provide evidence sufficient to show that the County followed a municipal policy or custom that amounted to deliberate indifference to her constitutional right. ( See generally Pl.'s SAC; Pl.'s Opp'n.) Therefore, the Court GRANTS summary judgment for Defendants on Plaintiff's Section 1983 claims against Defendant County. See Mabe v. San Bernardino County, 237 F.3d 1101, 1111 (9th Cir. 2001) ("Because [Plaintiff] presented no evidence of an unconstitutional custom or policy to support her claim against the County, summary judgment in favor of the County is affirmed."); see also Santos, 299 F. Supp. 2d at 1078.
III. Chesak's Immunity from State Law Claims
A. Immunity Pursuant to California Government Code § 821.6
Defendants contend that Plaintiff's negligence claim should be dismissed because California Government Code § 821.6 immunizes Chesak from claims of negligence and intentional infliction of emotional distress arising out of quasi-prosecutorial actions. (Defs.' P. A., Mot. for Summ. J., at 7.) Plaintiff, in response, argues that Section 821.6 immunity is not applicable here because Chesak was not engaging in any activity that involves the institution or prosecution of a judicial or administrative proceeding. (Pl.'s Opp'n at 6.)
Similar to absolute immunity for 1983 claims, California Government Code § 821.6 provides immunity from state claims for social workers engaged in prosecutorial and quasiprosecutorial acts. Section 821.6 states: "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." Cal. Gov't Code § 821.6 (2006); see also Jenkins v. County of Orange, 212 Cal. App. 3d 278, 283-288 (Cal.Ct.App. 1989) (Both a social worker and the county had absolute immunity from claims of negligence under Cal. Gov. Code § 821.6 and violations of constitutional rights under 42 U.S.C. § 1983 for acts that took place during the investigative and prosecutorial phases of the social worker's job). Thus, for the same reasons discussed above that Defendant Chesak was not performing quasiprosecutorial functions protected by absolute immunity, the Court FINDS Defendant Chesak is not entitled to Section 821.6 immunity.
B. Immunity Pursuant to California Government Code § 820.2
Defendants argue that California Government Code § 820.2 provides immunity for Chesak's decision to give custody of Alexis to Pfister. ( See Defs.' P. A., Mot. for Summ. J., at 10.) Plaintiff does not oppose Defendants' contention that Section 820.2 provides immunity. ( See generally Pl.'s Opp'n.) The Court FINDS Chesak's decision to give Alexis to Pfister is protected by Section 820.2 discretionary immunity, and GRANTS Defendants' Motion for Summary Judgment with respect to Plaintiff's negligence and IIED claims in so far as they are based on Chesak's decision to give Alexis to Pfister.
California Government Code Section 820.2 provides immunity for discretionary acts: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Cal. Gov. Code § 820.2 (2006). Section 820.2 does not protect all acts that involve some degree of choice. See Johnson v. State of California, 69 Cal. 2d 782, 788 (Cal. 1968). Rather, the statute only protects acts and omissions occurring in "the exercise of the discretion vested in" the employee. See McCorkle v. City of Los Angeles, 70 Cal. 2d 252, 261 (Cal. 1969); see also Wallace v. City of Los Angeles, 12 Cal. App. 4th 1385, 1403-1404 (Cal.Ct.App. 1993). Moreover, discretionary duties protected by immunity require "`personal deliberation, decision and judgment[,]'" whereas ministerial acts are those that amount "`only to obedience to orders, or the performance of a duty in which the officer is left no choice of his own[.]'" McCorkle, 70 Cal. 2d at 260-61 (citation omitted). Further, the California Supreme Court explained in Johnson, 69 Cal. 2d at 793, that immunity should attach only to those decisions which involve "basic policy" choices that constitute an exercise of discretion by a coordinate branch of government, and therefore should "`remain beyond the range of judicial inquiry.'" See also Scott v. County of Los Angeles, 27 Cal. App. 4th 125, 140-141 (Cal.Ct.App. 1994) (citation omitted.)
California courts have held that Section 820.2 shields a social worker's discretionary act of placing a minor in a particular home because that decision requires the balancing of multiple considerations. See, e.g., Thompson v. County of Alameda, 27 Cal. 3d 741, 749 (Cal. 1980) (holding as discretionary the decision to release a juvenile offender to the custody of his mother and the determination of the degree of supervision to exercise over the custodian); Ronald S. v. County of San Diego, 16 Cal. App. 4th 887, 896-897 (Cal.Ct.App. 1993) (determining that selection of an adoptive placement for a minor was discretionary). In contrast, California courts have held that mandatory duties required by statute are not ministerial because those requirements give social workers no room for making a decision. See, e.g., Johnson, 69 Cal. 2d at 797 (failure to warn a potential foster parent of dangerous propensities of a minor placed in her care is violation of a ministerial duty); Ramos v. County of Madera, 4 Cal. 3d 685, 694 (Cal. 1971) (holding ministerial the determination of whether an applicant for Aid to Families with Dependent Children ("AFDC") meets applicable eligibility standards); Scott, 27 Cal. App. 4th at 142 (ministerial duty to monitor child in foster care because applicable regulations required social workers to have monthly face-to-face contact).
Chesak's decision to give Alexis to Pfister, her custodial parent, is similar to the decisions found by courts to be discretionary rather than ministerial. Like Thompson and Ronald S., this case involves a social worker's decision as to which home to place the minor. See also County of Los Angeles v. Superior Court, 102 Cal. App. 4th 627, 643 (Cal.Ct.App. 2002) ("Placement and supervision are functions involving the exercise of discretion."). To determine whether the child should be given to her parent, guardian, or responsible relative, California Welfare and Institution Code § 390 requires the social worker to find out if conditions exist that require a dependency petition to be filed instead. See Cal. Wel. Inst. Code § 309. In particular, the social worker must exercise her or his judgment as to whether "[c]ontinued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a responsible relative." See id. Chesak conducted an investigation into Pfister's background; and, although Plaintiff disagrees with Chesak's decision, Chesak determined that conditions requiring conditioned detention of the child did not exist. Thus, the Court FINDS that Section 820.2 shields from liability Defendant Chesak's decision to give Alexis to Pfister.
Although Section 820.2 protects discretionary decisions vested in public employees, the immunity does not extend to non-discretionary acts or intentional torts committed beyond those decisions. In Newton v. County of Napa, 217 Cal. App. 3d 1151, 1560-61 (Cal.Ct.App. 1990), a California court held that county welfare department officials were immune from liability for their decision to investigate an alleged child abuse situation, their decision to make an "in-person response," and for the necessary actions they took to make a meaningful investigation. However, the court also held that immunity did not extend to non-discretionary acts or to at least some intentional torts committed in the course of making the investigation, such as battery and false imprisonment. See id. at 687-88; see also Sava v. Fuller, 249 Cal. App. 3d 773, 778 (Cal.Ct.App. 1967) (holding that a state botanist's decision to analyze a plant was a discretionary act, but the botanist could still be liable for negligence in the performance of the analysis).
Here, Plaintiff, in laying out her negligence and IIED claims, alleged acts beyond Chesak's decision to give Alexis to Pfister. ( See Pl.'s SAC at 5-6, 8-9.) In particular, Plaintiff claims that Chesak negligently failed to follow the statutory procedures set forth in California Welfare Institution Code Section 300 et seq. and also the County policies and procedures. ( See Pl.'s 6.) Thus, the Court FINDS that Chesak is not immune from liability for alleged violations of the state and local policies and procedures. However, the Court GRANTS Defendant's Motion for Summary Judgment with respect to Chesak's decision to place Alexis with Pfister because that decision is a discretionary act protected from suit by California Government Code Section 820.2.
IV. Claims of Negligence Against Chesak
Although the Court finds Chesak's decision to give Alexis to Pfister is protected by Section 820.2, as stated above, Plaintiff's allegations that Chesak was negligent for not following state and local policies and procedures survive because they have not been found to be protected by immunity. In her SAC, Plaintiff alleges that Defendant Chesak negligently and carelessly permitted Plaintiff's daughter to be removed from PCC by her biological father without following the statutory procedures set forth in (1) California Welfare Institutions Code § 300 et seq. ("State Code") or (2) San Diego County policies and procedures ("County policies"). (Pl.'s SAC at 6.) Plaintiff's Opposition did not respond to Defendants' assertion on summary judgment that Chesak abided by Welfare Institution Code § 300 et seq. in her handling of Alexis' case. (Pl.'s Opp'n, Mot. for Summ. J., at 4-6.). Rather, Plaintiff asserts that Defendant Chesak violated her duty under County policy by not providing Plaintiff with civil rights manuals and by not having a timely face-to-face meeting with Plaintiff. (Pl.'s Opp'n at 5.) For the following reasons set forth below, the Court GRANTS Defendant's Motion for Summary Judgment on Plaintiff's claim of negligence against Defendant Chesak.
To prove a claim of negligence, a plaintiff must show (1) a duty of due care, (2) breach of the duty, (3) proximate cause, (4) and actual damages. See Ahern v. Dillenback, 1 Cal. App. 4th 36, 42 (Cal.Ct.App. 1991) (citations omitted). "The question of `duty' is decided by the court, not the jury." Ballard v. Uribe, 41 Cal. 3d 564, 573 (Cal. 1986) (citation omitted).
A. Duty Under California Welfare Institution Code § 300
Defendants argue that Plaintiff has not made a sufficient showing that Chesak breached a duty under California Welfare Institution Code § 300 et seq. Further, Defendants assert that, contrary to Plaintiff's contention, "[e]ach step that Chesak took in connection with her investigation met the mandate of the Welfare and Institution Code." (Defs.' P. A., Mot. for Summ. J., at 6.) Although Plaintiff asserts that Chesak violated Section 300 et seq. in her SAC, Plaintiff does not specify in her SAC or Opposition the particular requirements under Section 300 et seq. that Chesak allegedly failed to meet. ( See Pl.'s SAC at 6.) However, Plaintiff does assert in her Supplemental Brief in Opposition that Defendant Chesak's background check on Pfister violated Cal. Wel. Inst. Code § 309(a)(2). ( See Pl.'s Suppl. Brief in Opp'n at 3.) For the reasons set forth below, the Court GRANTS Defendant's Motion for Summary Judgment with respect to Plaintiff's claim of negligence based on California Welfare Institution Code.
The Court agrees with Defendants that Chesak did not violate a duty under Section 300 et seq. because Chesak "conduct[ed] her investigation, complet[ed] it in forty-eight hours, [found] a biological parent with a custody order, and . . . plac[ed] Alexis in the custody of that parent." (Defs.' Mot. for Summ. J. at 7.) Defendants submitted a declaration from Chesak listing the steps she took in conformity with California Welfare and Institution Code § 309 to investigate whether there was a basis for filing a dependency petition with the court. ( See Ex. D at 2-4 to Defs.' Lodgm't in Support of Mot. for Summ. J.) Chesak reports that she (1) spoke with Pfister, Moretti, and their respective family members about Alexis; (2) had the District Attorney's Office conduct a background clearance on Pfister; (3) followed up on allegations of emotional abuse against Pfister with Tennessee Child Protective Services, (4) supervised telephone calls between Alexis and Moretti, and Alexis and Pfister; (5) obtained from the Juvenile Court of Williamson County, Tennessee, a court order, dated October 4, 2001, that gave permanent custody of Alexis to Pfister; and (6) consulted with her supervisors at length regarding what actions to take. ( Id. at 2-3; Defs.' Reply at 6.) Further, Defendants support Chesak's declaration with (1) a copy of the October 4, 2001, Tennessee court order granting custody of Alexis to Pfister, which Chesak relied upon in not filing a dependency petition; (2) a "Delivered Service Log," in which Chesak documented all the actions she took to investigate Alexis' case; and (3) a "Criminal History or Police Report Request," which found that Pfister did not have a criminal history according to four databases. ( See Exs. E, Q S to Defs.' Lodgm't in Support of Mot. for Summ. J.) Taken together, Defendants provide evidence sufficient to negate Plaintiff's argument that Chesak violated a duty of care under California Welfare and Institution Code § 300 et seq.
Since Defendants meet their initial burden, the burden shifts to Plaintiff to "set forth specific facts showing there is a genuine issue for trial" with regards to Plaintiff's negligence claim based on California Welfare Institution Code § 300 et seq. See Anderson, 477 U.S. at 256. Plaintiff has not met this burden. Plaintiff asserts in her Supplemental Brief in Opposition that Chesak violated Cal. Wel. Inst. Code § 309(a)(2), which Plaintiff argues mandated Alexis remain in detention for her protection. (Pl.'s Suppl. Brief in Opp'n at 3.) Section 309(a)(2) requires that a social worker immediately release the child to the custody of her or his parent, guardian, or responsible relative unless "[c]ontinued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a responsible relative." Cal. Wel. Inst. Code 309(a)(2) (2006). Thus, as stated earlier, Section 309(a)(3) vests the social worker with the discretion of deciding whether conditions exist that required continued detention. The social worker only has a mandatory duty to conduct an investigation. See Cal. Wel. Inst. Code § 309.
Plaintiff also argues her discussion of § 1983 immunity in her Opposition that Chesak violated California Welfare Institution Code 300(g) by refusing to follow Plaintiff's take care arrangements for Alexis. (Pl.'s Opp'n at 10-11.) However, her argument fails to show that Chesak violated a duty of care. California Welfare Institution Code § 300(g) provides that a child may become a dependent of the court if:
The child has been left without any provision for support; physical custody of the child has been voluntarily surrendered pursuant to Section 1255.7 of the Health and Safety Code and the child has not been reclaimed within the 14-day period specified in subdivision (e) of that section; the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.
Cal. Wel. Inst. Code § 300(g). The Court FINDS California Welfare Institution Code 300(g) is inapplicable here. Section 300(g) only applies when the social worker files a dependency petition. In this case, Chesak did not file a petition. Also, the statute does not require that Chesak follow Plaintiff's take care arrangements. Rather, Chesak could choose to give Alexis to her father because the whereabouts of Pfister, a parent who had legal custody of Alexis, was known; and Pfister was willing and able to take care of Alexis.
As Defendants have shown, Plaintiff conducted a reasonable, timely background investigation on Pfister by completing the following: (1) reviewing a criminal history report on Pfister that looked into four separate databases and found no criminal history, (2) following up with a Tennessee Child Protective Services to ensure that allegations of emotional abuse against Pfister were unsubstantiated, and (3) reviewing Tennessee court orders granting custody to Pfister. ( See Exs. E, S, Q at 22-24 to Defs.' Logdm't in Support of Mot. for Summ. J.) Chesak, thus, met her duty under Cal. Wel. Inst. Code 309. That Chesak did not conduct an even more thorough investigation is the result of the forty-eight hour time constraint imposed by Cal. Wel. Inst. Code § 313(a) and the resource constraints of a local government agency, not negligence. Thus, Plaintiff has failed to assert facts or evidence sufficient to show that any duty of care was breached. See Celetox, 477 U.S. at 324 (it is not sufficient for the party opposing summary judgment to "rest on mere allegations or denials of [her] pleadings."). As a result, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claim of negligence based on California Welfare Institution Code § 300 et seq.
B. Duty Under County Policies and Procedures
Plaintiff also contends that Defendant Chesak violated County policies and procedures by failing to (1) provide Plaintiff with a civil rights manual, (2) make face-to-face contact with Plaintiff until after Alexis was given to Pfister, or (3) conduct a sufficient background check on Pfister. (Pl.'s Opp'n at 4-6.) Defendants argue that California Evidence Code § 669.1 prevents Defendant County's policies and procedures from establishing a presumption of failure to exercise due care. (Defs.' Suppl. Brief at 1-2.) Section 669 provides that a policy or guideline of a state or local government cannot be used to establish a presumption of negligence unless the policy or procedure has been formally adopted as a statute. See Cal. Evid. Code § 669. Here, the County policies and procedures cannot be used to establish a presumption because Plaintiff has not alleged or provided evidence showing that the relevant County policies or procedures were codified as required by Section 669. However, as Defendant have conceded, County policies and procedures can be used as evidence on issues of negligence. (Defs.' Suppl. Brief at 1-2.) The Court will conduct its analysis of Plaintiff's negligence claim based on County policy accordingly.
Defendants in their Motion for Summary Judgment do not dispute that Chesak failed to provide Chesak with a civil rights manual and to initiate face-to-face contact with Plaintiff before Alexis was given to Pfister. ( See Defs.' Suppl. Brief at 1-4.) Instead, Defendants argue that failure to follow these county policies does not constitute violation of a duty of care because the overriding policy consideration for a social worker, as expressed in California Welfare Institution Code § 300 et seq., is to return the child to a parent within forty-eight hours. (Defs.' Suppl. Brief at 2.) Indeed, for the reasons stated in the prior section on the state law, Chesak carried out a reasonable investigation within the forty-eight hour period provided by California Welfare Institution Code § 313. Although it may have been possible for Chesak to have face-to-face contact with Plaintiff even while she was incarcerated, Chesak chose to spend the forty-eight hours and the County's limited resources carrying out the other state and county procedures and policies, such as conducting a background investigation on Pfister and interviewing Pfister. See Smith v. Alameda County Social Services Agency, 90 Cal. App. 3d 929, 936 (Cal.Ct.App. 1979) ("`in the case of a public agency defendant, the extent of its powers, the role imposed upon it by law and the limitations imposed upon it by budget; and finally, the moral imperatives which judges share with their fellow citizens — such are the factors which play a role in the determination of duty.'") (citation omitted). Moreover, Plaintiff has not cited to a case holding a social worker negligent for violating county policies of providing civil rights manuals and having face-to-face contact.
Plaintiff's third assertion that Defendant Chesak was negligent for not conducting an adequate background check on Pfister fails to establish a violation of a duty of care for two reasons. First, as Defendants have shown, Chesak did investigate Pfister's criminal history; she had the San Diego District Attorney's Office prepare a report that checked four data bases to determine whether Pfister has a criminal history. ( See Ex. R to Defs.' Reply at 2.) Chesak also followed up on an allegation of emotional abuse against Pfister, and found that the incident, which allegedly occurred in Tennessee, was unsubstantiated by Tennessee Child Protective Services. (Ex. Q to Defs.' Notice of Lodgm't in Support of Summ. J. at 22-24.) While Chesak's investigation may not have uncovered Pfister's complete criminal history, the background check she had conducted did not violate a duty of care. Second, it was reasonable for Chesak to rely on the Tennessee court's determination that Pfister was fit to have permanent custody of Alexis. See United States v. Hensley, 469 U.S. 221, 231 (1985) (government officials could act in reliance on information from another jurisdiction). Thus, Plaintiff should direct any concerns about Pfister's fitness as a parent and his criminal history to the Tennessee court that granted custody to Pfister. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's claim of negligence based on alleged violations of County policies and procedures.
V. IIED Claim Against Chesak and County
Defendants also moves for summary judgment on Plaintiff's IIED claim. (Defs.' Mot. for Summ. J. at 2.) As Defendants point out, Plaintiff does not specify in her Complaint what conduct the IIED claim is based on. (Defs.' Suppl. Brief at 4.) However, Plaintiff does indicate in her Supplemental Brief in Opposition to Summary Judgment that the IIED claim is based on the way Chesak conducted her investigation and her decision to give Alexis to Pfister. ( See Pl.'s Suppl. Brief in Opp'n at 3-4.) Because Chesak's decision to give Alexis to Pfister is immune from suit pursuant to California Government Code 820.2, the Court will focus on Plaintiff's IIED claim against Defendants based on Chesak's investigation. For the below reasons, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's IIED claim.
The elements of a prima facie case for IIED are as follows: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; (3) and actual and proximate causation of the emotional distress by the defendant's outrageous conduct. See Pardi v. Kaiser Permanente Hosp., Inc., 389 F.3d 840, 852 (9th Cir. 2004). "[T]he first prong . . . requires a showing of conduct `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. (citation omitted). Moreover, Defendants' conduct also has to appear unprivileged. See Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (Cal. 1982) (citations omitted).
Defendants contend that Plaintiff failed to make a sufficient showing of the first prong because Plaintiff has not shown that Defendant Chesak had the requisite intent, or that Chesak's conduct was egregious or outrageous. (Defs.' Suppl. Brief at 5-6.) Plaintiff, on the otherhand, argues that Defendant Chesak's intent was evidenced by Chesak (1) ignoring Plaintiff's child care arrangements for Alexis, (2) turning Alexis to Pfister pursuant to out-of-state court orders that were not registered with California and not certified, (3) not filing a dependency petition, (4) failing to conduct a proper background check on Pfister, and (5) ignoring Plaintiff's civil rights as recognized by County policy. ( See Pl.'s Suppl. Brief in Opp'n at 4.)
Plaintiff's first three arguments go to Chesak's decision to give Alexis to Pfister, and therefore are immune under California Government Code 820.2. Chesak had the discretion to decline Plaintiff's child care arrangements and to not file a dependency petition because Pfister had custody of Alexis pursuant to Tennessee court orders. Moreover, even if Chesak's decision were not immune, Chesak reliance on a Tennessee court order does not rise to the level of outrageous conduct.
Plaintiff's fourth argument that Chesak did not conduct a proper criminal background on Pfister fail for the same reasons Chesak was not negligent. Plaintiff has not alleged facts or presented evidence showing that Chesak's failure to conduct a more extensive background check was done for the purpose of causing emotional harm to Plaintiff. Plaintiff also has not shown that Chesak's conduct was egregious or outrageous. Rather, the facts show that Chesak had a reasonable background investigation conducted on Pfister given the time constraints under California Welfare Institution Code 300 et seq. and the County's resource limitations. Thus, as Defendants correctly argue, Chesak conducted an investigation and made a decision not to file a petition in accordance with state statutes and local policies. ( See Defs.' Suppl. Brief at 5.)
Plaintiff's fifth argument, which likely is referring to Plaintiff's right to have face-to-face contact and a copy of a rights manual, also is not sufficient. Plaintiff has failed to show that Chesak's omission of these two alleged County policies was intended to cause Plaintiff emotional distress. Rather, Chesak's alleged failure to follow the two County policies were the result of her carrying out the overriding objective under California Welfare Institution Code 300 et seq. of completing an investigation within forty-eight hours and handing the child over to a parent or guardian. Also, Chesak's failure to perform these two County procedures simply does not rise to the level outrageous conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment on Plaintiff's IIED claim against Defendants.
VI. County's Immunity from Negligence and IIED Claims
A. Immunity Pursuant to California Government Code § 815.2
Defendants argue that pursuant to California Government Code § 815.2, Chesak's immunity extends to her employer, the County. (Defs.' P. A., Mot. for Summ. J. at 11.) Plaintiff has not disputed Defendants' contention that the County has immunity. ( See generally Pl.'s Opp'n.) California Government Code § 815.2 provides: "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." See Cal. Gov. Code § 815.2; see also Kemmerer v. County of Fresno, 200 Cal. App. 3d 1426 (Cal.Ct.App. 1988). Because Cal. Gov. Code § 820.2 protects Chesak's decision to give Alexis to Pfister, the Court FINDS the County also is immune pursuant to § 815.2 from liability stemming from Plaintiff's discretionary decision. Thus, the Court GRANTS Defendants' Motion for Summary Judgment with respect to Plaintiff's negligence and IIED claims against the County based on Plaintiff's decision to give Alexis to Pfister.
B. Immunity Pursuant to California Government Code § 815(a)
Defendants also move for summary judgment on Plaintiff's claim that the County was negligent in hiring et al., arguing that Plaintiff has not asserted a statute that makes the County liable in this case. (Defs.'s Mot. at Summ. J. at 6-7; see also Pl.'s SAC at 5.) Plaintiff in her Opposition has not challenged the contention that the County is immune. For the below reasons, the Court FINDS the County also is immune under California Government Code § 815(a).
The California Tort Claims Act provides that "[e]xcept as otherwise provided by statute: A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." Cal. Gov. Code, § 815(a) (2006). As this language indicates, the intent of the Tort Claims Act is to confine potential governmental liability, rather than to expand it. See Zelig v. County of Los Angeles, 27 Cal. 4th 1112, 1127 (Cal. 2002). Thus, the rule in California is that "all government tort liability must be based on statute." See Duarte v. San Jose, 100 Cal. App. 3d 648, 161 (Cal.Ct.App. 1980). As a result, a litigant seeking to plead breach of a mandatory duty must specifically allege the applicable statute that imposes the liability and also the essential facts required by the statute. See Susman v. City of Los Angeles, 269 Cal. App. 2d 803, 809 (Cal.Ct.App. 1969) ("In view of the fact that tort causes of action against public entities are now based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Every fact essential to the existence of statutory liability must be pleaded."); see also Searcy v. Hemet Unified School Dist., 177 Cal. App. 3d 792, 802 (Cal.Ct.App. 1986). Accordingly, the issue presented on summary judgment is whether Plaintiff asserted an applicable statute and provided relevant facts to impose direct liability on Defendant San Diego County.
Here, although Plaintiff alleged in her Complaint that the County was negligent in hiring, training et al., Plaintiff did not plead a statute or supporting facts that would impose direct liability on the County. ( See generally Pl.'s SAC; Pl.'s Opp'n.) In fact, Plaintiff, in her Opposition, does not even respond to Defendants' argument that the County has immunity from Plaintiff's negligence claims. ( See generally Pl.'s Opp'n.) Thus, the Court FINDS Plaintiff has failed to show there is a genuine issue of material fact regarding the County's immunity, and GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's claim that the County was negligent in hiring et al.
VII. Abstention
Finally, Defendants assert that Plaintiff is using this litigation to challenge a long and contentious custody battle in Tennessee court that resulted in Pfister receiving permanent custody of Alexis. (Defs.' P. A., Mot. for Summ. J., at 18.) Thus, Defendants argue that the Court should refuse to address this case and refer Plaintiff back to the court in Tennessee based on the Rooker-Feldman Doctrine and the argument that the case involves elements of domestic relations which belong in state court. ( Id. at 18-19.) Plaintiff has not responded to Defendants' request for this Court to abstain. ( See generally Pl.'s Opp'n.) The Court DENIES Defendants' request to refer this case to Tennessee court because neither argument for abstention is applicable.
A. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine stands for the rule that a federal district court generally does not have subject matter jurisdiction to decide a direct appeal from the final judgment of a state court. See Rooker v. Fidelity Trust Co., 263 U.S. 314, 416 (1923); see also Noel v. Hall, 341 F.3d 1148, 1154-55 (9th Cir. 2003) ("Rooker-Feldman . . . in practical reality, only comes into play as a contested issue — when a disappointed party seeks to take not a formal direct appeal, but rather its de facto equivalent, to a federal district court."); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The rule recognizes that the Supreme Court is the only federal court with jurisdiction to hear the direct appeal. See id. Rooker-Feldman requires that to the extent an issue presented in federal district court is "inextricably intertwined" with an issue resolved by the local court, the federal district court cannot address that issue. See id. at 1157. Consequently, to the extent the issue is not "inextricably intertwined" with a decision of the local court, the federal court has subject matter jurisdiction to address that issue. See id.
In accordance with Rooker-Feldman and the Full Faith and Credit Act, this Court gives deference to the Tennessee court's decision to grant permanent custody to Pfister. See 28 U.S.C. § 1738 (2006). Thus, the Court has found that it was reasonable for Defendant Chesak to rely on the custody orders from the Tennessee court. However, Plaintiff's claims that Defendant Chesak violated California Welfare Institution Code Section 300 et seq., County policies, and Section 1983 are not inextricably intertwined with the custody orders from the Tennessee court. Rather, Plaintiff's allegations involve whether a social worker employed by the County of San Diego followed the requisite procedures in conducting her investigation. ( See Pl.'s Opp'n at 9.) Thus, the Court DENIES Defendants' request to dismiss Plaintiff's claims based on the Rooker-Feldman doctrine.
B. Domestic Relations
Defendants also argue that the Court should abstain because this dispute is at its core a custody dispute that falls into the realm of domestic relations reserved for state courts. (Defs.' P. A., Mot. for Summ. J., at 19). However, as this Court previously held in its Order denying Defendants' Motion to Dismiss or Transfer for Improper Venue, this case is properly before the Southern District of California. [Doc. No. 21.] While the custody orders from the Tennessee court are certainly pertinent to this case, Plaintiff is not asking to reverse those court orders. Rather, Plaintiff challenges the actions taken by Defendants County and Chesak in handling Alexis' case after Plaintiff was arrested in California for violating the Tennessee court orders. ( See Pl.'s Opp'n at 9.) The Supreme Court case cited by Defendants actually supports this distinction. ( See Defs.' P. A., Mot. for Summ. J., at 19.) In Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992), the Court held that the appeals court erred in affirming the district court's invocation of this abstention. The Court reasoned that the lawsuit involved allegations of torts committed by defendants (the father of the minor and his female companion), rather than challenges to a court's issuance of a divorce, alimony, or child custody decree. See id. Moreover, this case is properly before the Court because it is unlikely that the State of Tennessee would have personal jurisdiction over Defendants. Accordingly, the Court DENIES Defendants' request for the Court to abstain.
VIII. Judicial Notice
On August 3, 2005, Defendants filed a Request for Judicial Notice in Support of Motion for Summary Judgment ("Request"). [Doc. No. 36.] Federal Rule of Evidence 201(b) provides that a court may take notice of a fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." Fed.R.Evid. 201(b); see also Fed.R.Evid. 803. All of the documents for which Defendants seek judicial notice are from the Juvenile Court of Williamson County in Tennessee or the Los Angeles Superior Court, and therefore are capable of ready determination of their accuracy. ( See Defs.' Req. for Judicial Notice in Support of Mot. for Summ. J. at 1-2.) In addition, Plaintiff has not challenged Defendants' Request. Accordingly, the Court GRANTS Defendants' Request for judicial notice insofar as the Court has relied on these documents for its analysis.
Conclusion and Order
For the reasons stated above, the Court GRANTS Defendants' Motion for Summary Judgment.
IT IS SO ORDERED.