Judge Robert C. Longstreth, Case Number: 37-2021-00014628-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2021-00014628-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00014628-CU-PO-CTL T L VS DOE 1 [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant County of San Diego's Motion for Summary Judgment (ROA 125) is GRANTED.

Defendant first asserts it cannot be held directly liable for negligence, noting Plaintiff failed to plead the existence of any mandatory statutory duty with sufficient particularity in her First Amended Complaint.

(Govt. Code � 815.6; FAC at �� 17, 36.) Plaintiff appears to concede in her opposition that Defendant does not have direct liability in this case, as other than citing generally to section 815.6 (Opp. at p. 6), she identifies no mandatory statutory duty that Defendant is alleged to have breached. However, Plaintiff asserts Defendant can be held vicariously liable for the acts of its employees.

With regard to vicarious liability, Defendant asserts it is entitled to discretionary immunity for the acts of its employees. (Govt. Code �� 815.2, 815.4.) It appears from Plaintiff's discovery responses that her contention is that Defendant is liable for the decision of County social workers' decision not to remove her from the home of her foster parents after Plaintiff disclosed that she had been sexually abused by her foster father. Defendant asserts, and Plaintiff does not contest, that Defendant cannot be held liable on the grounds that Plaintiff's foster father was an agent, representative, or employee of the County.

(J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1228.) As Defendant asserts in its moving papers, a social worker's determination not to remove a minor from a home is discretionary decision subject to absolute immunity. (Govt. Code � 820.2; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 466 (collecting cases).) The immunity 'applies even to lousy decisions in which the worker abuses his or her discretion, including decisions based on woefully inadequate information.' (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1285; see Ortega v. Sacramento County Dept. of Health & Human Svcs. (2008) 161 Cal.App.4th 713, 728.) The immunity applies even though plaintiff might otherwise be able to state a claim for negligence; otherwise, the grant of immunity would be superfluous.

In opposition, Plaintiff asserts the social worker, Richard Jensen, never interviewed her (although she also states she told Jensen about the abuse before reporting it to her mother and foster mother), never visited the foster home, and never contacted law enforcement. (Pltf. Resp. Sep. Stmt. at �� 16-18.) Plaintiff concedes, however, that Jensen talked with Plaintiff's foster mother twice by telephone. (Ibid.; Opp. at 11:13.) Plaintiff's argument that Jensen never performed an investigation at all therefore fails.

Even assuming Jensen's investigation was poor, that his decision not to remove Plaintiff from the foster home was based on woefully inadequate information, and that the decision not to remove Plaintiff from the foster home, the social workers are entitled to absolute immunity. Nor does Plaintiff explain how the decision not to perform an investigation at all would not also have been discretionary. Plaintiff also Calendar No.: Event ID: TENTATIVE RULINGS

3084386 3 CASE NUMBER: CASE TITLE: T L VS DOE 1 [IMAGED] 37-2021-00014628-CU-PO-CTL contends Jensen breached some unspecified 'policies and procedures' by failing to contact the police or a sex abuse hotline, but she fails to identify any applicable policies and procedures that might have required such steps, and further fails to explain how, even if some County policy was breached, this would overcome Defendant's immunity defense.

Plaintiff seeks a continuance of the hearing on this motion to conduct further discovery pursuant to Code of Civil Procedure section 437c(h). Plaintiff asserts discovery is necessary to address the extent to which Defendant had notice of the sexual abuse. However, such discovery would not assist Plaintiff in opposing the motion, because even presuming Defendant did have notice of the abuse, it would still be immune from suit for its employees' discretionary acts. Likewise, Plaintiff's assertion that the discovery might lead to some evidence that an employee of Defendant might have failed to take some unspecified ministerial action is unavailing, given that she does not allege in her pleadings that Defendant breached any mandatory duty. 'It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.' (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Accordingly, Plaintiff's request for continuance is denied.

Plaintiff misconstrues Defendant's motion, framing as one that asks the court to find as a matter of law that Plaintiff was not a victim of childhood sexual abuse. (ROA 145, Kelly Decl. at � 4.) This is not the basis of Defendant's motion, nor does the court make any such determination by way of this ruling.

Rather, the court finds Defendant cannot be held liable for the social workers' discretionary decision not to remove Plaintiff from the foster home after she reported she was sexually abused, because such decisions are subject to absolute immunity. This issue is dispositive of Plaintiff's case. Accordingly, the court need not address Defendant's arguments regarding the statute of limitations or whether a claim for negligence has been stated.

Each party filed, but failed to make any reservation for hearing on, a motion to file certain documents under seal. (ROA 131, 144.) 'Failure to reserve a date for hearing will result in the... motion... not being heard.' (San Diego Superior Court Local Rules, Rule 2.1.19.A.) The court is exercising its discretion on this occasion to consider both motions notwithstanding the parties' failure to reserve a hearing date. However, the court's calendar generally cannot accommodate additional motions without a reservation. Both sides had ample time to bring the sealing issue to the court's attention before hearing on Defendant's summary judgment motion; indeed, Defendant brought an ex parte application months ago to obtain leave of court to permit the disclosure of its exhibit to Plaintiff, yet neither sought nor obtained a sealing order for the very same exhibit at that time. (ROA 134.) All counsel are to follow court rules going forward.

Absent a sealing order, the court may only consider what is in the court's public record. Court records are presumed open. (Cal. R. Court, rule 2.550(c).) 'A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.' (Cal. R. Court, rule 2.551(a).) Defendant's unopposed Motion to File Exhibit 4 Under Seal (ROA 131) is GRANTED.

Exhibit 4 contains records from the Child Welfare Services file for Plaintiff. As to this exhibit, the court finds that there is an overriding interest that overcomes the right of public access to the exhibit that supports sealing the exhibit. (Wel. & Inst. Code � 827; July 28, 2022 juvenile court protective order.) Further, the court finds there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed. The proposed order to seal is narrowly tailored, and a less restrictive means to achieve the overriding interest does not exist.

Plaintiff's unopposed Motion to File Documents Under Seal (ROA 144) is also GRANTED, except as to the juvenile court order (Bates stamp PLF_00001-00005), for which the motion is DENIED.

The juvenile court order is already a public record, and the motion is denied as to this record for this Calendar No.: Event ID: TENTATIVE RULINGS

3084386 3 CASE NUMBER: CASE TITLE: T L VS DOE 1 [IMAGED] 37-2021-00014628-CU-PO-CTL reason.

As to the remainder of Plaintiff's foster care records, the court finds that there is an overriding interest that overcomes the right of public access to the exhibit that supports sealing the exhibit. (Wel. & Inst.

Code � 827; July 28, 2022 juvenile court protective order.) Further, the court finds there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed. The proposed order to seal is narrowly tailored, and a less restrictive means to achieve the overriding interest does not exist.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

Defendant is to submit a proposed Judgment within five (5) days.

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