Opinion
B235286
06-25-2012
FELIX WU, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.
Felix Wu, in pro. per., for Plaintiff and Appellant. Houle & Houle, Gregory Houle and Richard Houle, for Defendants and Respondents County of Los Angeles, Ronald Darlington, Rosa Tang and Latoya Anthony.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC422949)
APPEAL from a judgment of the Superior Court of Los Angeles County, Amy Hogue, Judge. Affirmed.
Felix Wu, in pro. per., for Plaintiff and Appellant.
Houle & Houle, Gregory Houle and Richard Houle, for Defendants and Respondents County of Los Angeles, Ronald Darlington, Rosa Tang and Latoya Anthony.
In 2007 the Los Angeles County Department of Children and Family Services (Department) detained Felix Wu's teenage daughters, Tiffany and Chelsea, after receiving school referrals alleging Wu had physically and emotionally abused the girls. The juvenile court sustained the petition filed by the Department under Welfare and Institutions Code section 300, subdivisions (b) and (c), and the court's jurisdictional and disposition orders were affirmed on appeal. Wu then sued the County of Los Angeles and social workers Ronald Darlington, Rosa Tang and Latoya Anthony (the County defendants), alleging tort and civil rights claims. Judgment was entered against Wu after the trial court granted the County defendants' motion for nonsuit. We affirm.
In re Tiffany W. (Mar. 19, 2009, B207928) [nonpub. opn.]. Wu subsequently appealed the juvenile court's order at the six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)), which was also affirmed. (In re Tiffany W. (April 20, 2009, B210409) [nonpub. opn.].)
FACTUAL AND PROCEDURAL BACKGROUND
1. The Juvenile Court Proceedings
The facts are summarized from Division Three's opinions in the above-referenced appeals.
The Department received a referral from Tiffany and Chelsea's school on November 20, 2007, alleging physical and emotional child abuse perpetrated by Wu. The girls reported they were afraid to go home because Wu had hit them the previous Sunday and Monday and they were apprehensive the abuse would continue as the hitting appeared to be escalating in frequency. Wu denied the conduct but admitted hitting Tiffany on her head "a couple times" after she swore at him. The Department found "a definite parent/child conflict [existed] within this family" and recommended the children remain detained because their return to Wu would be contrary to their welfare.
The girls lived with their mother after the parents' 1998 divorce. When their mother's mental health deteriorated, she stopped feeding the girls and was verbally and physically abusive to them. In 2005 the girls were sent to live with Wu.
The Department filed a dependency petition on November 27, 2007. The petition alleged physical abuse causing the girls unreasonable pain and suffering and causing them to be afraid of their father. (Welf. & Inst. Code, § 300, subds. (a) [nonaccidental serious physical harm] & (b) [failure to protect from serious physical harm].) The petition also alleged there existed a severe parent-child conflict in that Wu was unable to safely and adequately parent the children, who were afraid of him because of his temper and angry outbursts. After the initial hearing the petition was amended to additionally allege Tiffany had on multiple occasions cut her wrists and both Tiffany and Chelsea had engaged in suicidal ideation as a result of Wu's consistent verbal abuse; meanwhile, Wu had refused to acknowledge or seek treatment for the girls' suicidal ideations and depression. (Welf. & Inst. Code, § 300, subd. (c) [serious emotional harm].)
The jurisdiction and disposition hearing lasted nearly a month, with 11 days of testimony from the girls, Wu and the girls' therapist. The juvenile court sustained the allegations under Welfare and Institutions Code section 300, subdivision (b), and conformed the petition according to proof under subdivision (c). The court observed, "This entire trial has been about not dealing with how these children feel or what they've done, thought about, in regards to those feelings, but rather addressing why they have no right to feel that way. [¶] . . . [¶] These girls have been clearly screaming in their own right about their upset, their frustration, their depression, both suicidal ideations and attempts at that, which is cutting her wrists as Tiffany did on multiple occasions. [¶] They have 'lost' their mother to a mental institution. They've had a lot to deal with. And yet Mr. W[u] does not seem to believe they have any right to feel anything." The court observed, although it could not count the number of slash marks on Tiffany's wrist, Wu had raised her wrist in court, called her a liar and ridiculed her. "If that's not abuse, under [Welfare and Institutions Code, section 300, subdivision] (c), I don't know what is[]," said the court. The court also found that everyone has tried to explain the problem to father, from the social workers, the caretakers, the children's therapist, and father's own therapist, to the girls themselves but Wu did not want to hear and "doesn't care."
The court declared the children dependents of the court and found by clear and convincing evidence (Welf. & Inst. Code, § 361, subd. (c)) there was a substantial danger to the children's health and safety if they were returned home and there was no reasonable means to protect them. The court removed the girls from Wu, placed them under the supervision of the Department and ordered family reunification services for Wu with monitored visitation. Division Three of this court affirmed the juvenile court orders on March 9, 2009.
In the interim, the juvenile court conducted a six-month review hearing pursuant to Welfare and Institutions Code section 366.21, subdivision (e). Wu had failed to enroll in any of the court-ordered classes or counseling, had written multiple letters criticizing the Department's conduct and assessments and had begun a campaign of harassing the children's caregivers, which forced the girls to be relocated. Notwithstanding the continuing conflict with Wu, the girls' behavior had improved significantly since their removal. After a contested hearing the court found a continuing need for their placement and Wu's progress toward alleviating or mitigating the causes necessitating placement had been "very minimal." On April 20, 2009 Division Three affirmed the six-month review order.
According to Wu's first amended complaint, his parental rights were terminated on April 2, 2009.
2. Wu's Suit Against the County Defendants
On October 2, 2009 Wu sued the County defendants. He filed a first amended complaint on October 15, 2009 alleging common law causes of action for fraud and deceit and a civil rights claim under title 42 of the United States Code section 1983 (section 1983). In support of his fraud claims Wu alleged Department employees had hidden evidence and information favorable to him to ensure the girls remained under the jurisdiction of the dependency court, falsely promised to help him regain custody of the girls and taught the girls to lie in court. He claimed damages in excess of $100 million.
The first amended complaint labeled the claims as: (1) fraud and deceit against Marcia West, a therapist who Wu claimed wrongly assessed him; (2) fraud and deceit against Department employees Tang, Darlington and Anthony; (3) "respondeat superior" against the Department; and (4) violation of civil rights under section 1983. West is not a party to this appeal.
After answering the first amended complaint Defendants moved for summary judgment on the ground Wu's causes of action were barred by principles of res judicata and collateral estoppel. While the trial court agreed many of the issues of fact raised by Wu had previously been determined or were precluded by the findings in the dependency proceedings, it denied the motion because a triable issue of fact existed on the question whether, under Government Code section 820.21, subdivision (a)(3), an exception to the general civil immunity of public employees, Wu could prove that one or more Department employees had maliciously failed to disclose exculpatory evidence.
Statutory references are to the Government Code unless otherwise indicated.
Section 820.21, subdivision (a), states: "Notwithstanding any other provision of the law, the civil immunity of juvenile court social workers, child protection workers, and other public employees authorized to initiate or conduct investigations or proceedings pursuant to Chapter 2 . . . shall not extend to any of the following, if committed with malice: [¶] (1) Perjury. [¶] (2) Fabrication of evidence. [¶] (3) Failure to disclose known exculpatory evidence."
The trial court filed its order denying summary judgment on September 29, 2010. The County defendants filed a second motion for summary judgment on December 9, 2010, contending Wu could not establish a triable issue of fact on the question of exculpatory evidence. On February 28, 2011 the court continued the hearing on the motion to require the County defendants to file underlying discovery responses in support of the motion. The County defendants lodged numerous discovery responses with the court but, at the hearing on May 2, 2011, acknowledged Wu's deposition had never been taken. The court continued the trial date and scheduled a further hearing to coincide with the July 12, 2011 final status conference to allow Wu to augment his declarations, as best he could, to establish the County defendants had maliciously failed to disclose exculpatory evidence during the course of the dependency proceedings. The court also stated it would conduct a hearing under Evidence Code section 402 on the first day of trial on the same question if necessary.
At the July 12, 2011 hearing the court indicated its tentative ruling to grant the pending motion for summary judgment based on Wu's previous submissions. As the court explained, Wu had submitted extensive declarations containing "whatever evidence he has." Wu complained that he had not been able to get discovery in the dependency court and that records from that proceeding showed Department social workers had omitted relevant evidence and fabricated other statements. Counsel for the County defendants noted Wu had been provided with the entire dependency court record and had deposed 10 Department employees in addition to the defendant social workers. The court was not persuaded by Wu's arguments and indicated an opinion would be forthcoming.
In the absence of a final ruling, however, the parties submitted trial briefs in anticipation of the Evidence Code section 402 hearing. On August 1, 2011, the first day of trial, the court announced it had reviewed the evidence and concluded as a matter of law Wu had failed to establish the malicious concealment of exculpatory evidence favoring Wu. As a threshold matter the court noted there could be no truly exculpatory evidence when the basis for removing the girls from Wu's custody was conflict between the girls and Wu, not some wrongdoing by Wu. At the court's suggestion the County defendants moved for a nonsuit, which was granted.
In its final order granting the judgment of nonsuit the court found Wu's section 1983 claim was barred and the immunity exception for concealing exculpatory evidence could not apply as a matter of law to the dependency proceedings against Wu. The court also found Wu's allegations were conclusory and lacked any evidence the Department or its employees had maliciously withheld evidence known to be exculpatory.
CONTENTIONS
Wu contends the trial court erred in concluding principles of res judicata and collateral estoppel foreclosed his civil rights claim. Wu also contends the court erred in specifying a single triable issue of fact in the summary judgment proceedings and thereafter restricting the litigation to that issue. Finally, Wu contends the court erred in basing its ruling on the definition of "exculpatory" found in Webster's Collegiate Dictionary (1979).
DISCUSSION
1. Standard of Review
"'The granting of a motion for nonsuit is warranted when, disregarding conflicting evidence, giving [the nonmoving party's] evidence all the value to which it is legally entitled, and indulging in every legitimate inference that may be drawn from the evidence, the trial court determines that there is no evidence of sufficient substantiality to support a verdict in [his or her] favor . . . .'" (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580; accord, Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 684-685.) "'Although a judgment of nonsuit must not be reversed if [the nonmoving party's] proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is "some substance to [the nonmoving party's] evidence upon which reasonable minds could differ. . . ."'" (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124-1125; see Kidron, at p. 1580 ["[m]ere conjecture or nonsensical interpretations of evidence are not sufficient to overturn a nonsuit"]; Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 115.) "The decision about what inferences can permissibly be drawn by the fact finder are questions of law for determination by the court, inasmuch as an inference may not be illogically and unreasonably drawn, nor can an inference be based on mere possibility or flow from suspicion, imagination, speculation, supposition, surmise, conjecture or guesswork." (Kidron, at pp. 1580-1581.) We review rulings on motions for nonsuit de novo, applying the same standard that governs the trial court. (Sandoval v. Los Angeles County Dept. of Public Social Services (2008) 169 Cal.App.4th 1167, 1178, fn. 11.)
2. The County Defendants Are Immune from Suit with the Limited Exception of Malicious Concealment of Exculpatory Evidence or Deliberate Fabrication of Incriminating Evidence
County employees, including social workers, have long enjoyed statutory immunity for their nonmalicious conduct in the investigation of child abuse, removal of a minor and prosecution of dependency actions. (See §§ 820.2, 821.6; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 881; Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 899.)
Section 820.2 provides: "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."
Section 821.6 provides: "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."
In 1995 the Legislature enacted section 820.21 to narrowly limit the immunity of a social worker who, with malice, fabricates evidence or withholds exculpatory evidence. The Legislative Counsel's Digest states that "the civil immunity of juvenile court social workers, child protection workers, and other public employees authorized to initiate or conduct investigations or proceedings pursuant to the juvenile court law shall not extend to acts of perjury, fabrication of evidence, failure to disclose exculpatory evidence, or obtaining testimony by duress, fraud, or undue influence if any of these acts are committed with malice, as defined." (Legis. Counsel's Dig. Assem. Bill No. 1355 (19951996 Reg. Sess.) 5 Stats. 1995, Summary Dig. p. 428.) In short, this section does not permit suits for the negligent or even reckless investigation of a dependency matter; to the contrary, it requires specific evidence of malicious conduct, defined as conduct "intended . . . to cause injury to the plaintiff or despicable conduct that is carried on . . . with a willful and conscious disregard of the rights or safety of others." (§ 820.21, subd. (b).)
The availability of immunity for a cause of action under section 1983 is governed by federal law (Pitts v. County of Kern (1998) 17 Cal.4th 340, 350), which is not dissimilar to the exception created by section 820.21. "[S]ocial workers have absolute immunity when they make 'discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.' [Citation.] But they are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury . . . ." (Beltran v. Santa Clara County (9th Cir. 2008) 514 F.3d 906, 908.) "[D]eliberately fabricating evidence in civil child abuse proceedings violates the Due Process clause of the Fourteenth Amendment when a liberty or property interest is at stake . . . ." (Costanich v. Dept. of Social & Health Services (9th Cir. 2010) 627 F.3d 1101, 1108.) "To sustain a deliberate fabrication of evidence claim," "a plaintiff must, 'at a minimum, point to evidence that supports at least one of . . . two propositions.'" (Id. at p. 1111, quoting Devereaux v. Abbey (9th Cir. 2001) 263 F.3d 1070, 1076 (en banc).) Under Devereaux a plaintiff must show that "'Defendants [either] continued their investigation of plaintiff despite the fact that they knew or should have known that [he] was innocent'" or "'used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.'" (Costanich, at p. 1111.)
Because a local government may not be sued under section 1983 for an injury caused solely by its employees or agents (Monell v. Dept. of Soc. Serv. of the City of New York (1978) 436 U.S. 658, 694 [98 S.Ct. 2018, 56 L.Ed.2d 611], and Wu has not alleged an "injury inflicted by the 'execution of a [County] policy or custom'" (Owens v. City of Independence (1980) 445 U.S. 622, 657-658 [100 S.Ct. 1398, 63 L.Ed.2d 673]), he has failed to state a section 1983 cause of action against the County. (Alicia T. v. County of Los Angeles, supra, 222 Cal.App.3d at p. 882; accord, Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 463; Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 829.)
3. The Trial Court Did Not Err in Granting the County Defendants' Motion for Nonsuit
a. The trial court correctly gave preclusive effect to the issues litigated in the dependency proceeding
In its September 29, 2010 ruling on the County defendants' motion for summary judgment, the court stated Wu would not be permitted to relitigate factual issues determined adversely to him in the dependency proceedings and listed a number of factual issues raised by Wu it considered precluded. The court's ruling on the County defendants' motion for nonsuit on August 1, 2011 was premised on the same analysis. Wu contends the trial court inappropriately applied the doctrines of collateral estoppel and res judicata to prevent him from establishing his claims.
The trial court's application of the doctrine of collateral estoppel is a question of law subject to de novo review. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10.) A prior decision precludes relitigation of an issue under the doctrine of collateral estoppel only if five threshold requirements are satisfied: "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; see also Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 346 ["[a]lthough a second action between the parties on a different cause of action is not barred by res judicata, nevertheless '. . . the first judgment "operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action'"'"].) "'[I]n deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.'" (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 875; accord, Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1508.)
"'Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, 'precludes relitigation of issues argued and decided in prior proceedings.'" (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896; accord, Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507.) Given that Wu's claims in the instant proceeding were different from those litigated in the dependency proceedings, the question is one of collateral estoppel or issue preclusion, not res judicata or claim preclusion.
Wu, citing no relevant authority, contends the dependency proceedings have no preclusive effect in this case because the juvenile court has no authority over misconduct, fraud or civil rights violations committed by Department employees. Wu has misconceived the issue. Wu is barred from relitigating the factual allegations made in the dependency proceedings that were sustained by the court and ultimately affirmed on appeal. Those issues include the determinations the girls should be detained under Welfare and Institutions Code section 300, subdivisions (b) and (c), based on the "severe parent child conflict" that prevented Wu from "safely and adequately parent[ing]" his daughters and "endanger[ed] the [girls'] physical and emotional health and safety and place[d] [them] at risk of physical and emotional harm, damage, danger and physical abuse" and that the girls had suffered serious emotional damage, as evidenced through Tiffany's cutting of her wrist and Chelsea's suicidal ideation, which Wu had failed to take seriously and for which he had failed to obtain treatment. The court also found by clear and convincing evidence (Welf. & Inst. Code, § 361, subd. (c)) there was a substantial danger to the children's health and safety if they were returned home and no reasonable means to protect them.
Under any application of collateral estoppel principles, the findings and orders of the juvenile court in the underlying dependency proceedings, which were affirmed on appeal, are entitled to preclusive effect in the instant action. In other words, Wu cannot dispute in this proceeding the juvenile court's exercise of jurisdiction, its disposition of the case or the findings in support of its orders. Those issues have been fully and finally adjudicated against him. (See In re Joshua J. (1995) 39 Cal.App.4th 984, 993 ["the litigation and determination of an issue by final judgment [in a juvenile dependency proceeding] is conclusive upon the parties or their privies in a subsequent suit on a different cause of action"].)
Wu nonetheless claims federal law bars application of res judicata or collateral estoppel principles to section 1983 claims, citing the decision in Johnson v. Mateer (9th Cir. 1980) 625 F.2d 240. Wu has vastly overstated the scope of this decision. The defendant in Johnson v. Mateer, supra, 625 F.2d 240, argued his section 1983 claim challenging the constitutionality of a search that led to his state court plea of nolo contendere was not precluded by the state court's ruling against him on a pretrial suppression motion. (Johnson, at p. 241.) The Ninth Circuit agreed based solely on the ground the defendant would have no other opportunity to seek review of the constitutionality of the search in a federal court because habeas corpus review is unavailable on a Fourth Amendment search and seizure claim. (Id. at p. 245.) The same year, however, the United States Supreme Court affirmed the general application of res judicata and collateral estoppel principles to section 1983 claims in Allen v. McCurry (1980) 449 U.S. 90, 94 [101 S.Ct. 411, 66 L.Ed.2d 308]: "The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel," excepting only "a federal writ of habeas corpus, the purpose of which is not to redress civil injury but to release the applicant from unlawful physical confinement." In sum, Wu's contention his section 1983 claim is not subject to the principles of collateral estoppel barring relitigation of issues determined in the dependency proceeding is without merit.
b. There was no procedural error
As best we understand Wu's next argument, he contends the trial court erred in identifying the single issue of fact to survive the County defendants' initial motion for summary judgment, that is, whether any conduct by the social workers fell within the exception created by section 820.21, and thereafter restricting the scope of the litigation to that issue. He argues the issue was not identified in the County defendants' moving papers and summary adjudication of discrete factual issues is improper unless they completely negate an entire cause of action. (See Code Civ. Proc. § 437c, subd. (f)(1); Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324.)
Wu's argument misconstrues the trial court proceedings. The trial court did not grant summary adjudication of any issues; it simply denied the motion. Moreover, Wu has not pointed to any ruling by the court that limited his right to engage in discovery or to otherwise argue his factual or legal contentions. In other words, without any prejudice to Wu arising from the court's order, there is nothing to address on appeal.
c. Wu has failed to produce any evidence the individual County defendants maliciously concealed exculpatory evidence or deliberately fabricated evidence
Whether or not Wu is precluded from relitigating the findings and orders issued in the juvenile court proceeding, he has utterly failed to identify any evidence supporting his allegations of malicious or deliberate malfeasance by County employees. Rather than focus on evidence that could conceivably sustain his burden of proof, he attacks the justification for the juvenile court orders, which, as established above, are entitled to preclusive effect in this case. Wu also challenges the trial court's use of a dictionary definition for the term "exculpatory," without proposing or identifying an alternate definition for the word.
It is not the job of this court to search the record or construct a legal argument on behalf of a litigant. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 ["'[t]his court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record'"]; see also People v. Stanley (1995) 10 Cal.4th 764, 793 ["'[E]very [appellate] brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.'"]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [it is not the proper function of Court of Appeal to search the record on behalf of appellants or to serve as "backup appellate counsel"].)
Wu, who is a member of the California State Bar, was provided every opportunity by the trial court to identify relevant facts that would support his claims, and he failed to do so. The court did not err in granting the motion for nonsuit.
DISPOSITION
The judgment is affirmed. The County defendants are to recover their costs on appeal.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.