Judge Stephen Morgan, Case 19AVCV00601 2023-03-14 Tentative Ruling

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

This is a wrongful death action. Plaintiffs Viveana Lopez (“Lopez”) and Omar Duron Rodriguez ("Rodriguez” and collectively “Plaintiffs”) present the following timeline:

· On or about March 14, 2018, Plaintiffs got into an argument in their residence in which Lopez fled the home with SLD;

· The police investigation determined that Rodriguez was the “dominant aggressor” and Lopez was “the victim;”

· Following the incident on March 14, 2018, there were no altercations between Plaintiffs and there were no incidents in which SLD was reported to be in danger, imminent harm from abuse or neglect or in any situation where her physical or emotions;

· On March 15, 2018, county social worker Serrano contacted Lopez and was told by Rodriguez that no Restraining Order was necessary, Lopez denied any physical altercation occurred and denied the allegations in their entirety, presented that she decided to leave the residence on the day of the argument because Plaintiffs do not argue in front of SLD, and admitted that she had a marijuana card. Serrano conducted a body check of SLD and did not observe any signs of abuse, made notations about Lopez’s appearance, and stated that no one had concerns about Plaintiffs and the safety of SLD;

· On March 20, 2018, social worker Gonzalez met with Rodriguez and was advised that there was no domestic altercation;

O On April 5, 2018, Serrano spoke to SLD’s maternal grandmother who stated that she was not aware of any safety concerns regarding SLD and Plaintiffs;

· On April 6, 2018, Rodriguez advised Serrano that his criminal case was dismissed with no charges or court orders;

· On April 11, 2018 Defendant County of Los Angeles (“COLA”) presented a request for a warrant for the removal of SLD to Dependency Court[1] and SLD was detained by COLA and its social worker Yesenia Serrano (“Serrano”), previously Doe 21, and Vilma Hernandez (“Hernandez”), previously Doe 22, and removed from Plaintiffs’ custody and placed in the custody of Defendant Niños Latinos Unidos, Inc. (“NLU”) under the supervision of COLA;

· On or about April 12, 2018, SLD was placed in the custody of Emma Onofre (“Emma”[2]) and Daniel Onofre (“Daniel” and collectively “the Onofres”); and

· On April 16, 2018, COLA filed a Detention Report prepared by Serrano and social worker Rina Mejia (“Mejia”), previously Doe 23, which contained numerous inaccuracies and falsehoods.

The wrongful death allegation stems from incidents that occurred after this timeline. Plaintiffs allege that SLD suffered a fever, the Onofres took SLD to Palmdale Pediatric Center where she was examined by Dr. Sherif Khamis who informed the Onofres to take SLD to a hospital, the Onofres instead returned home with SLD where she ultimately was found unresponsive in her bed.

It was later determined by the Los Angeles County Coroner' Office that SLD had died of airway restriction or asphyxiation due to a peanut wedged in her trachea. (Second Amended Complaint (“SAC”) ¶ 74; see Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-26 [“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.”]

The operative pleading is the Third Amended Complaint (“TAC”) filed on September 18, 2020 alleging five causes of action for: (1) Wrongful Death against the Onofres; (2) Wrongful Death against NLU; (3) Breach of Mandatory Duties against COLA, Serrano, Hernandez, and Mejia (collectively “COLA Defendants”); (4) Violation of Civil Right (Deprivation of Familial Relations under 42 U.S.C. § 1983) against COLA Defendants; and (5) Violation of Civil Right (Monell Related Claims under 42 U.S.C. § 1983) against COLA Defendants.

On March 08, 2021, NLU filed a Notice of Conditional Settlement and Withdrawal of Demurrer to TAC.

On March 08, 2022, COLA Defendants filed a Motion for Summary Judgment (“MSJ”).

On April 07, 2022, a continuance was granted on the MSJ via an ex parte motion by Plaintiffs. The MSJ was continued to October 25, 2022.

On September 09, 2022, a stipulation was signed by the parties to continue the presently scheduled hearing and trial related dates/deadlines by 120 days due to Plaintiffs’ counsel, Sanford Jossen (“Jossen”)’s health.

On December 06, 2022, an IDC was held in which the Court allowed motions to compel further to be filed. Jossen represented to the Court that he would file an amended Request for Admissions. The Court scheduled all motions for February 07, 2023.

On December 09, 2022, COLA Defendants filed a Motion for a Protective Order that Defendants be Relieved from Providing Further Responses for Plaintiffs’ Request for Admission (“RFA”), Set One (“Motion for Protective Order”).

On January 17, 2023, the Court held a non-appearance case review due to the voluminous nature of the Requests for Admissions (“RFAs”). The Court moved the hearings set for February 07, 2023 to March 14, 2023 and carved out a timeline for the forthcoming Motion to Compel Further Responses.

On February 06, 2023, Jossen filed a declaration stating that the RFAs will not be amended, making the Motion for Protective order moot.

In actuality, the Motion for Protective Order seeks protection from further responding to the RFAs which are seen by COLA Defendants to be further unwarranted annoyance, oppression, and undue burden and expense. As Plaintiffs did not file a Motion to Compel Further in accordance with the Court’s order, the Court will not entertain any future Motion to Compel Further by Plaintiffs regarding the propounded RFAs that were the subject of the IDC. (See Cal. Code Civ. Proc. § 128.) Because of this, COLA Defendants no longer need to respond further to the propounded RFAs. Thus, the Motion for Protective Order is MOOT.

The Court notes that COLA Defendants filed a notice of non-receipt of Plaintiffs’ Opposition to the Motion for Protective Order after Jossen’s declaration on March 07, 2023.

On February 27, 2023, Plaintiffs filed their Opposition to the MSJ. The Court notes that two documents related to the Opposition, a request for judicial notice (filed March. 01, 2023) and a declaration from Jossen (filed March 07, 2023), were filed past 14 days preceding to the hearing. (See Cal. Code Civ. Proc. § 437c(b)(2) [“An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.”].) As such, these two documents are late-filed. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).)

Standard for Summary Judgment – The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) Cal. Code Civ. Proc.¿§437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to¿any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal. App. 3d 367, 381-382.)¿¿¿¿¿¿

As to each claim as framed by the complaint, the party moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿¿¿¿¿¿ ¿¿¿¿¿¿

Once the defendant has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿¿¿¿

Pls.’ Objection No. 1 [All evidence in COLA’s Separate Statement] – OVERRULED.

Plaintiffs present that COLA Defendants did not follow Cal. Rules of Court, Rule 3.1350(d)(3) [“The separate statement must be in the two-column format specified in (h). The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers”]. California Rules of Court Rule 3.1350(d)(3) does not specify any consequence for the failure to comply with these requirements. “[T]he interpretation of a rule of court is governed by the same precepts that apply to statutory interpretation.” (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1122 [interpreting the following sentence which reads “ ‘The usual rules of statutory construction are applicable to the interpretation of the California Rules of Court.’ ”].) The Court turns to case law interpreting statutes. The Legislature identifies mandatory requirements and permissive requirements. However, it is not uncommon for obligatory statutory provisions to be accorded only directory effect. (Morris v. County of Marin (1977) 18 Cal.3d 901, 908–909, fn. 4.) Of course, when the Legislature imposes particular statutory requirements, it generally does not intend for them to be disregarded. (Cox v. California Highway Patrol (1997) 51 Cal.App.4th 1580, 1587.) But when “the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them.” (Ibid. [quoting Sutherland, Statutory Construction (5th ed.1992) § 57.01, p. 2].) There is “‘no simple, mechanical test’” for making this determination. Instead, “courts look to the procedure's purpose or function. If the procedure is essential to promote the statutory design, it is ‘mandatory’ and noncompliance has an invalidating effect. If not, it is directory.” (Cal–Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 673.) California Rules of Court Rule 3.1350(d)(3) reads, in pertinent part: “Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” It is clear that this is made for the efficiency of both the Court and the parties. Here, COLA simply cites to the exhibits. Defendant has responded to each fact in COLA’s separate statement despite its argument. The alternative to the Court overruling this objection is to continue the Motion for Summary Judgment. This MSJ has been continued for almost a year now. It is most beneficial to the judicial economy to address the MSJ now.

The Court also notes that if it were to adhere strictly to the Cal. Rules of Court, Cal. Rules of Court Rule 8.74 requires electronic documents to be in text-searchable portable document format (PDF) while maintaining the original document formatting. Plaintiffs’ evidence is not text searchable (i.e., cannot search exhibit number; initial pages are not text searchable; some exhibits are not text searchable).

Pls.’ Objection No. 2 [All COLA’s evidence in support of its MSJ] – SUSTAINED in part, OVERRULED in part.

Several exhibits are authenticated by declarations submitted by COLA Defendants and/or custodian of records declarations – Exhs. D, E, H, I, K, L, N, O, S, V, and X. The Court OVERRULES the objection as to these exhibits.

Several exhibits are not properly authenticated – A, B, C, F, G, T, Y, and Z. The Court SUSTAINS the objections as to these exhibits.

Rina Mejia (“Mejia”)’s deposition is attached as Plaintiffs’ Exhibit 35. Plaintiffs state: “Ms. Mejia specifically was asked ‘When you signed this declaration, did you remember anything you did in 2018 as a supervising social worker in the emergency response unit?’. Ms. Mejia's answer was ‘I do not.’ ”

The Court has searched the aforementioned question, resulting in no search results. The Court has read the provided pages of Mejia’s deposition. The deposition attached begins on page 73. There is no page 13 provided to the Court. The Court notes that it appears that there are two volumes of Mejia’s depositions.

As no evidence of this statement is attached, the Court must OVERRULE this objection.

Pls.’ Objection No. 4 [March 15, 2018 police report in its entirety] – MOOT. The police report for the 2018 incident (Plaintiffs’ state it is March 15, 2018 while COLA states it is March 14, 2018) is not properly authenticated and is not considered. See Plaintiffs’ Objection No. 2.

Pls.’ Objection No. 5 [All statements attributed to Plaintiff Lopez which are contained in the March 15, 2018 police report] – MOOT. The police report for the 2018 incident (Plaintiffs’ state it is March 15, 2018 while COLA states it is March 14, 2018) is not properly authenticated and is not considered. See Plaintiffs’ Objection No. 2.

Pls.’ Objection No. 6 [All statements attributed to Plaintiff Duron which are contained in the March 15, 2018 police report] – MOOT. The police report for the 2018 incident (Plaintiffs’ state it is March 15, 2018 while COLA states it is March 14, 2018) is not properly authenticated and is not considered. See Plaintiffs’ Objection No. 2.

COLA Defs.’ Objections – COLA Defendants have provided seven (7) documents objecting to various declarations submitted by Plaintiffs and Plaintiffs’ Request for Judicial Notice. The Court’s ruling on the Request for Judicial Notice is addressed in the Judicial Notice section, infra. As to the objections on the declarations, the Court breaks them down as follows:

· The objections to the Declaration of Paula Rohde, MA, CPDM (“Rohde”) are overruled. Rohde’s declaration is addressed by the Court’s statement of decision, see infra; and

· The declarations of Lopez, Duron, Flor Oliveras (Lopez’s mother), and Nayra Duron (Duron’s sister) are not ruled upon. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (Cal. Code Civ. Proc. § 437c(q). These declarations are used to: (1) challenge the March 14, 2018 incident and how it was characterized by the police; (2) challenge the March 14, 2018 incident and how it was characterized by Serrano; (3) bring in information as to how Serrano acted with Lopez prior to the juvenile hearing, (4) challenge the events of the juvenile courts hearings, specifically those addressed by the juvenile court’s minute order on June 06, 2018; (5) include information as to how DCFS acted with family members; and (6) show that family members are hurt and still hurting over the death of SLD. The reasons for why the Court believes these declarations are not material to its disposition of the motions are discussed within the Statement of Decision, infra. The Court further notes that, had it taken the declarations into consideration, Nayra Duron’s declaration evidences that COLA Defendants were attempting to place SLD with Nayra Duron prior to her untimely death.

COLA’s exhibits are records of various Superior Courts in Los Angeles County and subject to judicial notice under Cal. Evid. Code § 452(d).

Pls.’ Request for Judicial Notice No. 1 – DENIED. Plaintiffs have attached a print out of a court case from LexisNexis (Casey N. v. County of Orange (2022) 86 Cal.App.5th 1158). The Court will consider this as it is presented as a citation of case law in Plaintiffs’ papers, but not as a judicially noticeable document as Plaintiff seems to be moving under Cal. Evid. Code § 452(a). (See Pls.’ Request for Judicial notice [emphasis added only in Cal. Evid. Code § 452(a)].)

Pls.’ Request for Judicial Notice No. 2 – DENIED. Plaintiffs have attached a print out of a court case from LexisNexis (In re M.V. (2023) 87 Cal.App.5th 1155). The Court will consider this as it is presented as a citation of case law in Plaintiffs’ papers, but not as a judicially noticeable document as Plaintiff seems to be moving under Cal. Evid. Code § 452(a). (See Pls.’ Request for Judicial notice [emphasis added only in Cal. Evid. Code § 452(a)].)

· The causes of action at issue in the MSJ are: (1) Third Cause of Action Breach of Mandatory Duties; (2) Fourth Cause of Action Violation of Civil Right (Deprivation of Familial Relations); and (3) Fifth Cause of Action Violation of Civil Right (Monell Related Claims).

· Though the autopsy report was not properly authenticated, Plaintiffs have admitted in their pleadings that it was later determined by the Los Angeles County Coroner' Office that SLD had died of airway restriction or asphyxiation due to a peanut wedged in her trachea. (Second Amended Complaint (“SAC”) ¶ 74.) This information can come in as Plaintiffs are bound by their previous pleadings. (See Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945-946; Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-26 [“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.”]; Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal. App. 4th 336 [discussion of sham pleading doctrine in context of demurrers – “A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. The principle is that of truthful pleading.”].) Here, Plaintiffs provide no explanation as to why this information is suddenly omitted in the TAC. The Court also notes that, though Plaintiffs object to the autopsy report itself due to a lack of proper authentication, they have admitted that the autopsy report completed on SLD (1) determined that the cause of SLD’s death was asphyxia due to choking on a peanut, and (2) The manner of death was deemed accidental. (See Admitted by Plaintiffs in Pl.’s Responses to UMFs No. 76.)

“ ‘Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.’ (Gov. Code, § 815.6.) Thus, the government may be liable when (1) a mandatory duty is imposed by enactment, (2) the duty was designed to protect against the kind of injury allegedly suffered, and (3) breach of the duty proximately caused injury.” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348.)

In this action, Plaintiffs attempt to impose liability on COLA Defendants pursuant to various statutes. The TAC provides them as follows:

1. To protect the child, as set forth in Welfare and Institutions Code §§ 202, 300.2, 361(c)(1), 361.2 (a), 361.3(a)(8), 361.21(e);

2. To preserve the family [Welfare and Institutions Code §§ 202, 300.2, 361.5(a);

3. To provide a stable, permanent home for the child in a timely manner [Welfare and Institutions Code §396]; and,

4. To act in the best interests of the child [Welfare and Institutions Code §§ 202(a) — (b)

Plaintiffs also mention the Department of Social Services (“DSS”) Manual of Policy and Procedures (“MPP”) further in the Complaint under Element 2 breach of mandatory duties. It appears that these are the actual duties that Plaintiffs believe are imposed upon COLA Defendants in order to achieve the aforementioned broad “duties” imposed by the cited WIC statutes. They are:

(a) Failure to determine the potential for the existence of conditions which placed "SLD" at risk and in need of services while in THE ONOFRE’S home, D.S.S. Manual 31-125.1. (b) Failure to monitor "SLD" while in THE ONOFRE'S home, D.S.S. Manual 31-310.12 and 31-330.1. 25 26 27 28

(d) Failure to establish and maintain a relationship between "SLD" and airy social worker, D.S.S. Manual 31-320.57.

(e) Failure to gather and evaluate information relevant to the case to complete an assessment assessing and appraising service needs to "SLD"'s condition, D.S.S. Manual 31-201.111.

(f) Failure to provide to arrange for the provision of services identified in the case plan and monitor SLD' physical and emotional condition. D.S.S. Manual 531-310.12.

(g) Failure to investigate, supervise, monitor and evaluate all persons in a foster home before placing "SLD" in the home of THE ONOFRE'S in violation of California Welfare and Institutions Code § 309.

(h) Failure to return custody of "SLD" to Plaintiffs pursuant to Welfare and Institutions Code 5309(a) (1)-(6) when it was determined that none of the conditions which lead to the initial detention continued to exist.

(i) Failure to investigate SLD's circumstances and the facts surrounding her being taken into custody and attempt to maintain SLD with her family through the provision of services 18 pursuant to Welfare and Institutions Code 5309(a)(1) — (6).

(j) Failure to initiate an assessment of suitability of any able and willing relative or nonrelative extended family 23 25 26 member for placement of SLD pursuant to Welfare and Institutions Code §309(d) (1).

(k) Failed to timely perform or conduct monthly visits and determine the condition of SLD pursuant to the applicable California Department of Social Services Manual §31-320.3, 31- 320.2, (promulgated pursuant to Welfare and Institutions Code 516501) and Scott v. Count of Los Angeles 27 Cal. App. 4th 125 [1994. [sic]

(l) Failed to determine whether “SLD” was in ally danger or imminent harm before removing "SLD".

(n) Falsely representing to the Court that Plaintiff LOPEZ was the victim of domestic violence in the domestic violence incident. which led to the detention of "SLD", negligently selecting, investigating, supervising, monitoring and evaluating THE ONOFRE'S prior to the placement of "SLD" in their care, custody and control.

(o) Failed to provide exculpatory evidence to the Dependency Court regarding Plaintiffs.

COLA Defendants argue that they have complied with the applicable regulations, focusing first on the Department of Social Services (“DSS”) Manual of Policy and Procedures (“MPP”). Specifically, that they complied with all mandatory duties relating to face-to-face contact between social workers, foster parents, and SLD. This is supported by Exh. D.

As to the Cal. Welfare and Institutions Code (“WIC”) allegations, COLA Defendants present that WIC § 309 state provides that “[t]he social worker shall immediately release the child to the custody of the child’s parent, guardian, Indian custodian, or relative, regardless of the parent’s, guardian’s, Indian custodian’s, or relative’s immigration status” except where “[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 their home or the home of a relative.” COLA Defendants provide that they could not return SLD to Lopez because (1) Lopez was arrested by LAPD at the time of removal (UMF No. 33 [admitted by Plaintiffs in their Response to UMFs]); (2) SLD could not be left in Lopez’ custody because Lopez failed to protect SLD from risk of harm by failing to obtain restraining order and allowing Duron, the dominant aggressor, back in the home (Decl. Serrano ¶ 21); and (3) Department of Children and Family Services (“DCFS”) determined that Lopez consistently failed to comply with prevention and aftercare orders which resulted in unresolved issues and presented a great risk of repeat behavior (ibid.). COLA Defendants state that they could not place SLD with a relative because: (1) Lopez had her own referrals as a child while in her mom (SLD’s mater grandmother)’s care (id. at ¶ 33; Exh. D, 03/15/18-09/18/2019 p. 3-4 [admission by Lopez to Serrano that she was taken out of her mother’s care]; (2) Lopez only provided Serrano with one non-party collateral source, her birth mother, and Duron did not provide any collateral sources (id. at ¶ 12); and (3) and even when Plaintiffs did provide information as to a paternal aunt, the request to have SLD placed with the paternal aunt was revoked when, on May 7, 2018 Lopez called Harris and asked if SLD could remain with her foster parents as SLD appeared to be bonded, happy, and well-cared for.

The Court notes that by the broad statement that Lopez gave Serrano only one non-party collateral source does not have a time limitation and, thus, is contradicted by Lopez providing information about SLD’s paternal aunt. (See Exh. D 3/16/18 – 09/18/2019 p. 13.) However, the contention that May 7, 2018 Lopez called Harris and asked if SLD could remain with her foster parents as SLD appeared to be bonded, happy, and well-cared for is correct – it is notated by Harris on May 07, 2018 that:

· she received an email from the HAS monitoring the visits between SLD and Lopez stating that Lopez wanted the visits to remain in Palmdale,

· Lopez stated she could meet this Wednesday, CSW informed mother it was fine to have the visit in Palmdale,

· Lopez called half an hour later to ask if the child could remain in her current placement as she appears “bonded, happy, and well-cared for” and that “she did not wish for [SLD] to be placed with the paternal aunt when she is happy with the current family.

· CSW asked Lopez if that was the real reason or if Lopez did not get along with paternal aunt and Lopez stated she got along with paternal aunt, but she cared about SLD’s well-being.

· CSW explained to Lopez that the Department usually prefers for children to be with a relative caregiver, if the court asks the Department to assess paternal aunt’s home, it would need to be done. CSW also explained that father would have some say in the matter. CSW stated the process would be long due to a back log in the “RFA section.”

It appears, based on the evidence provided by COLA, that SLD’s placement with paternal aunt was not revoked as COLA Defendants claim.

COLA Defendants do not directly address the other WIC sections. Instead, they present two arguments: (1) decisions pertaining to suitability of placement and the investigation are considered discretionary and are entitled to immunity under Cal. Gov. Code §§ 820.2 and 821.6 (citing to Jacqueline T. v. Alameda County Child Protective Services, et al. (2007) 155 Cal.App.4th 456, 466 [“[t]he nature of the investigation to be conducted and the ultimate determination of suitability of adoptive parents [by social workers] bear the hallmarks of uniquely discretionary activity.] and Becerra v. County of Santa Cruz (1998) 3 Cal.App.4th 1450, 1466), and (2) Plaintiffs are unable to show that there is a reasonable probability that anything the County Employees did or did not do caused or contributed to SLD’s death as she died of asphyxia due to choking on half a peanut.

Plaintiffs alleged harm is SLD’s death. (See TAC ¶¶ 101 [“. . .were designed to protect and prevent injury to "SLD" while in foster care.”] and 105 [Had Defendant COUNTY made timely and periodic monthly visit to the ONOFRE home to visit SLD, which was a mandatory duty as set forth in the applicable California Department of Social Services Manual §31-6 320.3, 31-320.2,. . .it would have discovered before SLD died that SLD was so sick, neglected and in dirty, unsanitary and unsafe conditions.”].)

As mentioned, ante, the government may be liable when (1) a mandatory duty is imposed by enactment, (2) the duty was designed to protect against the kind of injury allegedly suffered, and (3) breach of the duty proximately caused injury.” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348.

The Court agrees with COLA’s arguments regarding causation. Plaintiffs cannot seek to suppress that SLD’s cause of death was half a peanut as Plaintiffs pled this fact in previous complaints. Plaintiffs allegations in the TAC essentially ignore SLD’s cause of death and, instead, present that COLA Defendants did not follow mandatory duties, proximately causing SLD’s death by placing her in an unsafe home. (See TAC ¶¶ 103 [“the ONOFRE home was not safe or child-proof, that the ONOFRES were not qualified to ca e for infants and that perso.is were in the ONOFRE home that were not live-scanned or cleared to care for dependent minors”], 105 [“it would have discovered before SLD died that SLD was so sick, neglected and in dirty, unsanitary and unsafe conditions”], and 106 [“Defendant COUNTY's failure to timely visit and evaluate SLD's condition and physical circumstances. . . resulted in the ultimate death of SLD. Defendant COUNTY breached its mandatory duty to determine whether SLD could remain with Plaintiff LOPEZ, or a relative, making placement in the ONOFRE home unnecessary. This breach was a substantial factor which led to the removal of SLD from Plaintiffs and particularly, Plaintiff LOPEZ's care and led to placement of SLD with the ONOFRES and was a substantial factor which led to SLD's death.”].

The Court is presented with a situation best addressed by the seminal Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 (“Palsgraf”) decision which determined the characterization of a “zone of danger” or “zone of impact.”

In Palsgraf, a passenger was standing on a platform of the railroad. A train stopped at the station, and a man ran forward to catch it. When he attempted to board the train in haste, including being pushed in the train by a railroad employee, he dropped a package. Unbeknown to anyone, the package was filled with fireworks. As a result, the passenger was injured from the subsequent explosion and sought to hold the railroad liable for negligence. Palsgraf held: “If no hazard is apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to a plaintiff, does not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to someone else. In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury. The ideas of negligence and duty are strictly correlative.” (Palsgraf, supra, 248 N.Y. at 342.) In Palsgraf, Andrews and Cardozo disagreed, creating a split in how proximate cause is analyzed.

Defendant owes a duty, in the sense of a potential liability for damages, only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent, in the first instance. (See Keeton, Legal Cause in the Law of Torts (1963) 18-20; Seavey, Mr. Justice Cardozo and the Law of Torts (1939) 52 Harv.L.Rev. 372; Seavey, Principles of Torts (1942) 56 Harv.L.Rev. 72.)

Harper and James state the prevailing view. The obligation turns on whether "the offending conduct foreseeably involved unreasonably great risk of harm to the interests of someone other than the actor. . . . [The] obligation to refrain from . . . particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails." (2 Harper & James, The Law of Torts, supra, at p. 1018; fns. omitted.)

Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis.

(Dillon v. Legg (1968) 68 Cal.2d 728, 739-40 [questioned with regard to emotional distress claims].)

The existence and scope of a duty are questions of law for the court's determination, and foreseeability is a critical factor in the analysis. When foreseeability is analyzed to determine the existence or scope of a duty, foreseeability is also a question of law. (Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291, 1300.)

Here, no act of COLA Defendants caused the half peanut to be lodged into SLD’s trachea. Plaintiff has presented evidence that they have followed the DSS MPP. That aside, whether a case worker visited DLS a certain number of times would not have prevented her from attempting to ingest half a peanut at a later point in time.

As to Plaintiffs’ allegations that SLD should not have been removed, there is case law holding that removal is discretionary. Immunity to social works in California is given: (1) as absolute immunity from liability arising out of her actions in investigating child abuse allegations, initiating dependency proceedings and removing a child from his custodial parent; (2) immunity extends to other prosecutorial or quasi-prosecutorial functions such as weighing and presenting evidence when rendering a decision on whether to proceed with litigation; (3) conduct relating to a county’s investigation of reported child abuse, including “ ‘failing to properly, thoroughly and completely investigate the source and basis for the underlying [child abuse] complaint.’ ” (Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 467-68 (“Jacqueline T”) [summarizing case law surrounding immunity for placement of a child; cited cases rely on Cal. Gov. Code § 821.6].) The decision to remove SLD is one that receives immunity under California case precedent which roots its determination in Cal. Gov. Code § 821.6.)

Finally, as to whether the premises, the Onofres’ home, was checked/investigated for safety, it qualifies as the actual delivery of public social services to abused, neglected or exploited children. Based on the holding in Jacqueline T, immunity for such actions does not apply. Serrano describes the selection and placement of the Onofres:

Given the lack of information before me, I advised DCFS’ technical assistance team to help me locate a foster family that is available to care for SLD. The technical assistance team will generally contact the foster family agencies (FFAs) to identify possible placements of a child. The FFA that identifies and provides a list of availability from which we can choose, with the caveat that the family is able to care for the child. The social worker then makes arrangements to place the child in the home. Accordingly, the selection of the Onofres as SLD’s foster parents was based upon availability.

In this instance, the technical assistance team informed that that there was a family (the Onofres) certified by a foster family agency that was available for placement.

When the County needs to place a child in foster care, they can either place a child in a County-sponsored Resource Family Home or they can seek the services of a Foster Family Agency. A foster family agency assumes the responsibilities of conducting background checks and home assessments of the family they then certify. Whereas resource family homes are monitored by the County and all assessments for suitability of parenting are the responsibility of the County alone. Additionally, when a child is placed in a foster home certified by a foster family agency, the agency will send its own social workers to conduct visits and document any safety concerns. Accordingly, a child placed through a foster family agency is monitored more frequently than in any other placement.

I contacted the Onofres who were certified by the foster family agency, Ninos Latinos Unidos, Inc. Ms. Onofre confirmed that she would be able to foster SLD and assist with Reunification Services.

The Court takes judicial notice of the DSS MPP pursuant to Cal. Evid. Code § 452(b) [regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States]. DSS MPP, reg. 31-420.22 permits placement in a “licensed foster family home, licensed small family home, or a licensed foster family agency for placement in a family home which has been certified by the foster family agency.”

Based on the evidence presented, the correct entity to bring such a claim against is NLU, the agency that certified the Onofres; however, Plaintiffs dismissed NLU from the action.

COLA Defendants have met their burden to negate an essential element of the Third Cause of Action Breach of Mandatory Duty Claim. The burden shifts to the Plaintiffs to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

Plaintiffs’ Opposition focuses only on the events leading to the detention of SLD. That is, Plaintiffs argue that the Serrano’s investigation was lacking, leading to mischaracterization and misinformation being presented to the Juvenile Court. Plaintiffs include a small argument related to the assessment of relatives. Plaintiffs next argue (1) discretional duties are not at issue, again focusing on the detention of SLD.

As mentioned, ante, there is a distinguishment between when a social worker’s conduct is immunized and when it is not – immunity is given to actions in investigating child abuse allegations, initiating dependency proceedings and removing a child from his custodial parent. (Jacqueline T., supra, 155 Cal.App.4th at 467 [citing Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283–84, 287].) The Jacqueline T. Court states in clear language in regard to an allegation of failing to properly, thoroughly and completely investigate the source and basis for the underlying [child abuse] complaint:

We conclude as a matter of law that Employees' alleged acts and omissions are covered by the broad grant of immunity section 821.6 affords to “[a public employee's] instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment” (§ 821.6), as well as the grant of immunity section 820.2 affords to sensitive policy decisions that result from a governmental entity's unique decision making or planning process (§ 820.2; Barner, supra, 24 Cal.4th at p. 688).

Further, because we conclude Employees are immune from liability for their alleged acts and omissions under sections 820.2 and 821.6, we conclude County is likewise immune. “Though sections 821.6 and 820.2 expressly immunize only the employee, if the employee is immune, so too is the County. (Gov. Code, § 815.2, subd. (b); Kayfetz v. State of California (1984) 156 Cal. App. 3d 491, 496 [203 Cal.Rptr. 33].)” (Kemmerer v. County of Fresno, supra, 200 Cal. App. 3d at p. 1435.)

Plaintiffs’ claims against COLA are solely based on the actions of its social workers.

Plaintiffs attempt to introduce expert opinion through the Declaration of Paula Rohde, MA, CPDM (“Rohde”). This opinion infringes upon the immunity given to social workers and will not be considered for this cause of action.

Plaintiffs’ arguments outside of the detention of SLD are only that causation is a matter for the jury. This case concerns foreseeability. As such, the existence and scope of a duty are questions of law for the court's determination, and foreseeability is a critical factor in the analysis. When foreseeability is analyzed to determine the existence or scope of a duty, foreseeability is also a question of law. (Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291, 1300.)

Rohde also seeks to opine about causation (Decl. Rhode ¶ 23 [“SLD should never have been removed from the care of her mother, Viveana Lopez on April 11, 2018, resulting in her death on or about July 17, 2018.”]). Such an opinion is beyond the scope of an expert.

Finally, in title only, Plaintiffs state if COLA Defendants are not liable for the death of SLD, they are liable for the wrongful detention of SLD and Plaintiff’s (written as singular) emotional distress as a result. The Court has already discussed the immunity of COLA defendants, ante. Further, the TAC alleges harm only in the form of SLD’s death for the Third Cause of Action. (TAC ¶¶ 80 [“the negligent acts of Defendants and each of them, as described herein, would never had occurred and SLD would be alive today.”], ¶ 96 [SLD was maintained by the ONOFRE's [sic] in a negligent, careless and unsafe and unclean manner which would subject her to harm.”], 97 [“the conditions she was kept in the ONOFRE home in a competent manner was a substantial factor leading to the death of SLD.”], 99 [“Plaintiffs allege that had Defendants undertaken an investigation of Defendants the ONOFRE's [sic] it would have discovered that they were not appropriate or skilled to care for infants and said placement was inappropriate for ‘SLD’.”], 103 [“the ONOFRE home was not safe or child-proof, that the ONOFRE'S [sic] were not qualified to care for infants and that persons were in the ONOFRE home that were not live-scanned or cleared to care for dependent minors.”], 105 [“Plaintiffs and each of them were harmed by the unjustified detention of SLD and the placement of SLD in the ONOFRE's [sic] custody. . .[COLA Defendants] would have discovered before SLD died that SLD was so sick, neglected and in dirty, unsanitary and unsafe conditions.”], and 106 [“Defendant COUNTY breached its mandatory duty to determine whether SLD could remain with Plaintiff LOPEZ, or a relative, making placement in the ONOFRE home unnecessary. This breach was a substantial factor which led to the removal of SLD from Plaintiffs and particularly, Plaintiff LOPEZ's care and led to placement of SLD with the ONOFRE's and was a substantial fact or which led to SLD's death.”].)

Plaintiffs have failed to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto as to their Third Cause of Action.

ii. Fourth Cause of Action Violation of Civil Right (Deprivation of Familial Relations [42 United States Code § 1983[3]]) (“§ 1983 Claim”)

The TAC alleges that COLA Defendants detained SLD without any evidence that SLD was in any exigent circumstance of emotional or physical harm, misrepresenting evidence to the Court, thus depriving Plaintiffs of their familial relations.

“42 United States Code section 1983 . . . was enacted ‘to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.’ ” (Modacure v. B&B Vehicle Processing, Inc. (2018) 30 Cal.App.5th 690, 693.) It does not “create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials.” (Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934.)

There are two elements required to state a cause of action under that statute – (1) the plaintiff must allege that some person has deprived him of a federal right, and (2) they must allege that the person who has deprived him of that right acted under color of state or territorial law. (Catsouras v. Department of California Highway Patrol (2010)181 Cal.App.4th 856, 890; see also Humphries v. County of L.A. (9th Cir. 2008) 547 F.3d 1117, 1121 [“To establish a prima facie case under § 1983, the Humphries must establish that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct violated a right secured by the Constitution and laws of the United States.”].)

The Court notes that the harm Plaintiffs allege is not Plaintiffs’ familial rights, but rather the death of SLD. (TAC 50:27-28, 51:1-2, 51:19-25.) The Court has explained how the SLD’s death was too far removed from the facts and evidence presented to be considered foreseeable, ante. The Court, however, addresses this argument based on the loss of familial rights in general as the harm due to the possibility of such an interpretation of the pleadings.

A violation of one’s rights to be free from unlawful removal from the custody of their parents occurs when a child is removed without a warrant, parental consent, or evidence that the child was in imminent danger of serious bodily injury. Jones v. County of Los Angeles (9th Cir. 2015) 802 F.3d 990, 1000. If the detention is by warrant (or order by a judicial body), as in this case, Plaintiffs must establish that the warrant affidavit contained misrepresentations or omissions material to the finding of probable case and make a ‘substantial showing’ that the misrepresentations or omissions were made intentionally or with reckless disregard for the truth.” Bravo v. City of Santa Maria (9th Cir. 2011) 665 F.3d 1076, 1083. Materiality is a question of law for the court to determine. Ewing v. City of Stockton (9th Cir. 2009) 558 F.3d 1218, 1224. Additionally, where a parent enters a plea admitting to any of the allegations contained in the warrant affidavit, as in this case, the doctrine of collateral estoppel precludes the parent from relitigating the issue. In re Joshua J. (1995) 39 Cal.App.4th 984, 993. Here, Plaintiffs contend that the three social worker defendants engaged in judicial deception in the warrant process in order to detain SLD

COLA Defendants present that Serrano’s statement was accurate as the Statement of Cause (“SOC”) accurately reflected:

· Plaintiffs engaged in a domestic violence incident on March 14, 2018. (Alleged by Plaintiffs in TAC ¶¶ 26.)

· SLD was the subject of another DCFS case. (Decl. Serrano ¶ 24 [disputed only by Plaintiffs as to the resolution of the case; see Pl.’s Responses to UMFs No. 133].)

· Lopez had a medically prescribed marijuana card that allowed her to smoke marijuana. (Admitted by Plaintiffs in Pl.’s Responses to UMFs No. 134).

· Lopez did not smoke in the presence of SLD. (Admitted by Plaintiffs in Pl.’s Responses to UMFs No. 134.)

· That officers determined Duron was the dominant aggressor in the March 14, 2018 dispute. (Admitted by Plaintiffs in Pl.’s Responses to UMFs No. 136 [“admit that the police report states that Duron was the dominant aggressor in the March 4, 2018 incident.”].)

· That the charges against Duron following the domestic violence incident had been dropped. (Admitted by Plaintiffs in Pl.’s Responses to UMFs No. 138.)

Based on the above, COLA Defendants contend that none of Plaintiffs’ alleged falsehoods were present in the SOC; (2) the SOC itself is immaterial as the Dependency Court ordered SLD’s removal and sustained the petition based on not only the SOC, but also the Dentition Report; and (3) social workers have discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents (i.e., immunity). The Court notes that COLA Defendants presentations also evidence that the dependency court amended SLD’s petition to dismiss any allegation that SLD suffered serious physical harm and any allegation concerning Lopez’s marijuana use. (Exhs. P and N [admitted by Plaintiffs in Pl.’s Responses to UMFs Nos. 188-90].)

As to Hernandez, COLA Defendants present that Hernandez did not prepare the warrant package, submit the statement of cause, or detention report. (Hernandez Decl. ¶ 5 [admitted by Plaintiffs in Pl.’s Responses to UMFs Nos. 172-73].) Hernandez’s sole role was filing SLD’s juvenile court petition. (Id. at ¶ 6 [admitted by Plaintiffs in Pl.’s Responses to UMFs No. 175].) COLA Defendants emphasize juvenile court petitions are not material to the detention of a child, citing In re N.M. (2011) 197 Cal.App.4th 159, 166 (“[I]f the jurisdictional findings are supported by substantial evidence, the adequacy of the petition is irrelevant.”

Regarding Mejia, Mejia’s position was that of Serrano’s supervisor. (Decl. Mejia ¶ 9.) As such, Mejia signed the Detention Report based on Serrano’s filings. (Id. at ¶ 4.) COLA Defendants argue that Mejia cannot be held liable for Serrano’s actions.

Finally, COLA Defendants present that Plaintiffs’ § 1983 Claim is barred by collateral estoppel as Plaintiffs entered a no contest plea at an adjudication hearing on June 06, 2018 as to allegations brought under WIC §300 (b)(1) and (j). COLA Defendants present that, as such, a final judgment was rendered based on this no contest plea and may not be directly attacked and set aside on the ground that evidence has been suppressed, concealed, or falsified; in the language of the cases, such fraud is ‘intrinsic’ rather than ‘extrinsic.’ (Citing to Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 20. See also id. at 9 [“For our justice system to function, it is necessary that litigants assume responsibility for the complete litigation of their cause during the proceedings. To allow a litigant to attack the integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed situations, such as extrinsic fraud, would impermissibly burden, if not inundate, our justice system.”].) COLA also emphasizes that Plaintiffs were represented by counsel at the dependency court hearing. (Admitted by Plaintiffs in Plaintiffs in Pl.’s Responses to UMFs No. 183) COLA Defendants also present that Plaintiffs changed their plea from a denial to a no contest plea, showing that Plaintiffs understood the consequences; however, COLA Defendants did not provide a citation for this contention. Despite the lack of citation, this contention is supported by the provided exhibits. (Exhs. M and P.) COLA believes that the issues presented in this action are identical to those in the dependency court and that COLA is not liable based on a theory of vicarious liability under 42 U.S.C. § 1983.

WIC § 395 provides: “A judgment in a proceeding under section 300 may be appealed in the same manner as any final judgment. . .” (WIC § 395(a)(1).) The order entered at a dispositional hearing is considered a final judgment. (In re Daniel K. (1998) 61 Cal.App.4th 661, 667; In re A.L., 224 Cal.App.4th 354, 372].) Cal. Code Civ. Proc. § 906 generally provides what may be reviewed in an appeal from a final judgment. That is, a reviewing court “may review the verdict or decision and any intermediate ruling, proceeding, order or decision which [(1)] involves the merits or [(2)] necessarily affects the judgment or order appealed from or [(3)] which substantially affects the rights of a party … .” This standard applies in dependency cases. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1404 [22 Cal. Rptr. 2d 50].) This standard applies in dependency cases. (See id. at 1404.)

“Our Supreme Court has explained that ‘[a] plea of ‘no contest’ … is the juvenile court equivalent of a plea of “nolo contendere” … in criminal courts. A plea of “no contest” to allegations under section 300 at a jurisdiction hearing admits all matters essential to the court’s jurisdiction over the minor.’ (In re Troy Z. (1992) 3 Cal.4th 1170, 1181 [13 Cal.Rptr.2d 724, 840 P.2d 266], citation omitted (Troy Z.).) It is well settled that a party who enters a no contest plea to a section 300 petition is barred from bringing an appeal to challenge the sufficiency of the evidence supporting the jurisdictional allegations, as the party has already admitted all matters essential to the court’s jurisdiction. (Troy Z., supra, 3 Cal.4th at p. 1181.)” (In re Andrew A. (2010) 183 Cal.App.4th 1518, 1526.)

Here, Plaintiffs entered a no contest plea in the juvenile court. The received in the form of a signed waiver of rights from Lopez and Duron, respectively. (Exh. P.) The juvenile court found that the waivers were “knowingly, intelligently and voluntarily made.” (Ibid.) As such, they are barred from appealing the juvenile court’s judgment to challenge the sufficiency of the evidence supporting the jurisdictional allegations as well as a motion for reconsideration to challenge the juvenile court’s jurisdictional findings. (Id. at 1526-27.)

Plaintiffs seek to challenge the juvenile court’s decision through this cause of action. This is not the correct court to challenge the juvenile court’s findings. In re Andrew A explains that individuals who take issue with a juvenile court’s determination after a no contest plea may seek to set aside their no contest plea. (Id. at 1527, including fn. 7.) The Court expresses no opinion on what procedure, if any, Plaintiffs could have used to seek reconsideration of the jurisdictional finding in this case, had they first succeeded in setting aside her no contest plea.

The doctrines of res judicata and collateral estoppel prevent the parties from relitigating a juvenile court’s findings and/or holdings once they have been reduced to a “final judgment on the merits.” (In re Alexander P. (2016) 4 Cal.App.5th 475, 490.) Accordingly, Plaintiffs cannot contest the juvenile court’s decision to remove SLD in this action.

The Humphries also attempt to base their Section 1983 claim for the seizure of their children on violations of California Welfare and Institutions Code § 300, et seq. Such attempt is futile, however, because these statutes provide protections well beyond those guaranteed by the Constitution. See Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996) ("To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.") Accordingly, the Court grants Defendants' request for summary judgment on the Humphries' Section 1983 claim for unconstitutional seizure of their children insofar as it is grounded upon violations of sections of the California Welfare and Institutions Code.

(Humphries v. L.A. County (C.D. Cal. 2005) U.S. Dist. LEXIS 47040, 47-48 [aff'd in part and rev'd in part, (9th Cir. Cal. 2008), 547 F.3d 1117, 2008 U.S. App. LEXIS 23292.].)

There is no doubt that the actions alleged occurred under the color of state law; however, as COLA Defendants have shown WIC § 300 was adhered to and a hearing was held, Plaintiffs were not deprived of their constitutional familial rights. (See In re Bridget R. (1996) 41 Cal.App.4th 1483, 1502-03 [summary of familial rights and due process].) Plaintiffs were not only aware of the proceedings against them, but also participated in them, electing to plead no contest to the allegations brought under WIC § 300.

Further, as mentioned, ante, social workers are entitled to absolute immunity for performing the quasi-prosecutorial functions connected with the initiation and pursuit of the child dependency proceedings. (See Jacqueline T. v. Alameda County Child Protective Services, et al. (2007) 155 Cal.App.4th 456, 466; Ulikhanova v. Los Angeles, 2018 U.S. Dist. LEXIS 231369 [“Though the Ninth Circuit overturned its prior case law granting absolute immunity to social workers who stand accused of fabricating evidence or making false statements, . . ., it did not address state-law immunity against state-law claims. . .As such, [Beltran v. Santa Clara Cty. (9th Cir. 2007) 514 F.3d 906, amended 2008] is inapposite to defendants' argument that California Government Code §§ 820.2, 821.6 and 815.2(b) immunize them from plaintiffs' state-law claims.”].[4])

The Court notes that Cal. Gov. Code § 820.21, added in 1996, provides that 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 does not extend to perjury, fabrication of evidence, failure to disclose known exculpatory evidence, and obtaining testimony by duress, fraud, or undue hardship, if committed with malice. (Cal. Gov. Code § 820.21(a).) Malice is defined as conduct that is intended by the person described in subdivision (a) to cause injury to the plaintiff or despicable conduct that is carried on by the person described in subdivision (a) with a willful and conscious disregard of the rights or safety of others. (Id. at (b).) Though Plaintiffs allege misrepresentation of evidence (i.e., fraud, perjury, and/or failure to disclose known exculpatory evidence), they do not allege that any of this was done with malice. Further, the evidence provided by COLA Defendants demonstrates: (1) the juvenile court discarded misrepresentations that Plaintiffs were alleging, and (2) Plaintiffs pled no contest at the juvenile court hearing.

The Court highlights that its citations in the analysis of this section are to cases arising after the addition of Cal. Gov. Code § 820.21, with the exception of In re Brittany S. (1993) 17 Cal.App.4th 1399, discussing the applicability of a legal standard.

Regarding COLA itself, it is well established that respondeat superior does not apply to § 1983 claims. (Monell v. Dep't of Soc. Servs. (1978) 436 U.S. 658 (“Monell”).)

COLA Defendants have met their burden to negate an essential element of the Fourth Cause of Action for their § 1983 Claim. The burden shifts to the Plaintiffs to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

Plaintiffs present that children cannot be separated by the state without due process of law except in an emergency. Plaintiffs believe that Casey N. v. County of Orange (2022) 86 Cal.App.5th 1158 is analogous to this instant action.

· Social workers are not entitled to qualified immunity in circumstances where a child is removed without exigent circumstances and where social workers do not disclose exculpatory information to the Court under both state and federal law, citing to Beltran v. Santa Clara Cty., supra, 514 Fed 3rd at 908;

· Cal. Gov. Code § 820.2 does not extend to perjury under Cal. Gove. Code § 820.21;

· State tort immunity does not apply to the § 1983 claim, citing to Demaree v. Pederson (9th Cir. 2018) 887 F.3d 870 and Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011;

· Plaintiffs’ no contest pleas are inadmissible and cannot be considered as Plaintiffs believed they would not get SLD back if they contested the allegations;

· Collateral estoppel does not apply as the issue in this civil action are different from that of the juvenile court hearing;

· There was no adjudication of the allegations of the petition in the juvenile court; and

· Respondeat superior applies here due to under the holding in United States of America v. Town of Colorado City, Arizona; Twin City Water Authority, Inc. (9th Cir., 2019) 935 F.3d 80.

The Court notes that Plaintiffs’ Opposition references Monell. The Court disregards the Monell arguments for this cause of action as Plaintiffs have chosen to separate and distinctly plead their Monell claims in the Fifth Cause of Action. Monell will be discussed, infra.

Plaintiffs’ first cited case, Casey N. v. County of Orange (2022) 86 Cal.App.5th 1158 (“Casey N.”), is distinguishable from this instant action. Specifically:

· Casey N., the Court found that the social worker Walpus’ statement – “To put it plain and simple, this is a nasty Family Law case that involves the child, … and it is the undersigned's opinion that the child's mother is feeding information or coaching information to the child … .” (Italics added.) – was clearly unsubstantiated as, at trial, the Walpus admitted she did not have any evidence Casey (mother) was coaching the minor or feeding information to the minor. (Casey N., supra, 86 Cal.App.5th at 1171.) Further, “the social worker did not advise the juvenile court judge that statement was not supported by evidence. Her excuse was ‘I wasn't asked.’ ” (Id.)

· The report from social worker Herman could not definitively draw a conclusion as to the abuse and as to the coaching. (Id. at 1171-72.)

· Both reports omitted the following information which the Casey N. Court found to supported allegations presented by the minor and mother. (Id. at 1172-1173.) “The Agency had an official policy that supporting evidence from professionals such as law enforcement, medical professionals, school personnel, therapists, and psychiatrists, among others, should be incorporated in dependency case reports in their entirety wherever possible. Failing to include the above-referenced information in full in the reports provided to the juvenile court in this case violated that policy.” (Id. at 1174.)

Here, our case is such that the issues that Plaintiffs have with the SOC were actually dropped with the amended petition to the juvenile court. (See Exh. P.) Plaintiffs admit that the allegations the take issue with were dropped in the juvenile court. (See Pl.’s Responses to UMF Nos. 134-38, 188-90 [charges related to SLD placed in physical harm’s way, Lopez’s marijuana smoking, and Duron as criminal charges taken out of amended petition for juvenile court].) Plaintiffs only remaining concern about the SOC as pled is the characterization of the March 14, 2018 incident as a “domestic violence incident” which led to the immediate removal of SLD. (See Opposition 12:6-8.) With regard to the police report, the Court cannot use the police report as an exhibit as there is no declaration from a custodian of record to authenticate the report. Further, the TAC itself alleges that “[t]he police report characterized the incident as a ‘domestic violence[.]’ ” (TAC 25-26.) “ ‘[T]he admission of fact in a pleading is a “judicial admission.” Witkin describes the effect of such an admission: ‘An admission in the pleadings is not treated procedurally as evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be commented on in argument and relied on as part of the case. And it is fundamentally different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of “conclusiveness of pleadings,” a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations. [Citations.]’ (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 413, pp. 510–511.)’ (Valerio, supra, 103 Cal.App.4th at p. 1271.)” (In re Marriage of Elali & Marchoud (2022) 79 Cal.App.5th 668, 681.) The characterization of the incident as a domestic violence incident stems from the police report, as alleged in the pleadings, not from Serrano.

The Court also notes that Casey N. does not address one’s ability to contest a juvenile court’s proceedings, including allegations of fraud and misrepresentation, in light of a no contest plea.

Plaintiffs believe that their no contest pleas cannot be considered in this civil action. Plaintiffs cite only to case law regarding nolo contendere pleas in criminal courts. (See Opposition 38:6-14 [citing Rusheen v. Drews (2002) 99 Cal.App.4th 279].) Cal. Pen. Code § 1016 provides, in relevant part: “the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” (Cal. Pen. Code § 1016(3).) Aside from this exception, “the legal effect of [a nolo contendere] plea. . .shall be the same as that of a plea of guilty for all purposes.” (Cal. Pen. Code § 1016(3).) As courts have held that a plea of no contest in juvenile courts is analogous to a nolo contendere plea in criminal courts, the same applies. (See In re Andrew A. (2010) 183 Cal.App.4th 1518, 1526.) The Court is not using Plaintiffs’ no contest plea as an admission. Rather, the court uses the no contest plea only to show that the issues surrounding the juvenile court proceedings are barred from relitigation as the juvenile court found “by clear and convincing evidence, pursuant to Welfare and Institutions Code sections 361(a)(1), 361(c), 361 (d) and 362(a) [and safeguards available to custodial parents]” that it was reasonably necessary to remove SLD from the parents. (Exh. P. See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 [collateral estoppel precludes consideration of an issue actually litigated and resolved in prior action]; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1084 [the doctrine of collateral estoppel applies in dependency actions].)

Plaintiffs’ declaration from Rohde seeks to opine about the SOC presented to the juvenile court which is no longer at issue due to the amended petition as well as the proceeding, which is barred by collateral estoppel. As such, Rhodes’ declaration is inapposite as to this cause of action.

The analysis above addresses Plaintiffs’ collateral estoppel argument. That is, collateral estoppel applies only to the issues resolved by the juvenile court in this civil action.

Plaintiffs believe the initial detainment of SLD is still at issue. The removal of SLD was done at the behest of a court issued order/warrant. (Exh. J/Exh. 12-13, Exh. D/Exh. 9 p. 11[removal of child done under court-issued warrant in part due to an “outstanding ‘assault with deadly weapon’ warrant issued for Lopez; Serrano informed of this by LAPD officer].) Plaintiffs did not appeal this order. Instead, they seek to question it through this civil action. The Court believes this, too, is barred by collateral estoppel.

For clarity however, the court addresses the removal order/protective custody warrant. “The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home or, if the minor is removed for one of the reasons stated in paragraph (5) of subdivision (c), whether it was reasonable under the circumstances not to make any of those efforts, or, where it is known or there is reason to know that the child is an Indian child, as defined by Section 224.1, whether active efforts, as defined by Section 224.1 and as required in Section 361.7 were made and that these efforts have proved unsuccessful. The court shall state the facts on which the decision to remove the minor is based.” (Cal. Wel. & Inst. Code § 361(e).) Though Plaintiffs allege misrepresentations, Plaintiffs do not address Lopez’s outstanding assault with a deadly weapon warrant in their pleadings or Opposition. The SOC provided by Plaintiffs, despite Plaintiffs’ allegations, informs the juvenile court that: (1) some previous cases in were unfounded and inconclusive, including those with allegations of drug use (marijuana) and physical and emotional abuse; (2) some were substantiated (i.e., an incident with SLD’s maternal uncle) are not brought up by the pleadings; (3) investigation by Serrano and another social worker, Shannen Gonzalez; (4) Duron’s denial of certain events related to the March 14, 2018 incident, (5) police report received by COLA Defendants (the Court does not comment on this report); (6) Lopez’s relationship with Hugo Prado Sr., father to Lopez’s other children (not at issue in the pleadings); (7) interviews with Lopez’s children; and (8) Serrano’s conclusion. (Exh. K/Exh. 11.) It appears the warrant was issued for reasons outside of the domestic violence incident that occurred on March 14, 2018. The March 14, 2018 issue is presented as the catalyst of the detention of SLD in the pleadings; however, the evidence shows that other factors besides those questioned in the pleadings were considered by the juvenile court. First, it appears substantial evidence supports the juvenile court’s removal order. (In re Kristin H. (1996), 46 Cal. App. 4th 1635 [substantial evidence test used to test court’s finding in a dependency hearing].) That aside, a removal order/protective custody warrant must be supported by probable cause. (U.S. Const., 4th Amend.; Cal. Welf. Inst. Code § 304(b).) Applying the same standard as a that of a criminal warrant, it has been established that “when, as here, the police do obtain a warrant, that warrant is presumed valid.” (People v. Amador (2000) 24 Cal.4th 387, 393 .) Additionally, case law has long held that “[a] defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and then proving the errors or omissions. (Franks v. Delaware (1978) 438 U.S. 154, 171-172 [98 S. Ct. 2674, 2684-2685, 57 L. Ed. 2d 667]; Theodor v. Superior Court, supra, 8 Cal. 3d at p. 101; People v. Costello (1988) 204 Cal. App. 3d 431, 440-441 [251 Cal. Rptr. 325].)” (Ibid.) Plaintiffs did not challenge the full basis for the removal order/warrant; Plaintiffs cited cases (Demaree v. Pederson (9th Cir. 2018) 887 F.3d 870 and Kirkpatrick v. County of Washoe (9th Cir. 2016) 843 F.3d 784,788) focus on a case in which children were detained without a court removal order/protective custody warrant, distinguishing both from the action at hand; and have thus failed to meet the burden of proving errors or omissions.

Regarding other items the Opposition presents as issues, the Court addresses them as follows:

· The emergency response referral information is not at issue as the drafter, social Azuka Okoro, is not part of this litigation.

· Plaintiffs highlight that the delivered serviced reports, presented by both parties, present no negative comments about Lopez and Duron. Plaintiffs take concern with the fact Serrano never spoke to the investigating officers or Mejia, supported by exhibits referenced in Pls.’ UMF Nos. 27-30, and the characterization of the incident as a domestic violence incident. As mentioned, ante, the characterization of the altercation between Lopez and Duron stems from the police, not the Serrano. As to concerns related to the incident, the juvenile court took notice of the status of Duron’s criminal case and discarded those allegations in the amended petition. (See UMF Nos. 134-38, 188-90.)

· The Court notes that Pls.’s Responses to Def.’s Separate Statement includes arguments of mischaracterization that are not brought up by the parties in the papers (e.g., Pls.’s Responses to Def.’s Separate Statement UMF Nos. 139-40 [previous DCFS referreals]). The Court declines to address these arguments as they are not pertinent to the pleadings or the papers apart from a previous case regarding Lopez’s marijuana. The allegations regarding Lopez’s use of marijuana were dropped by the juvenile court and the Court has analyzed it, ante.

Next, Plaintiffs cite to Beltran v. Santa Clara Cty. (9th Cir. 2007) 514 F.3d 906 (“Beltran”). Beltran is addressed by Ulikhanova v. Los Angeles (2018) 2018 U.S. Dist. LEXIS 231369 (“Ulikhanova”), see ante. For the federal claim, the misrepresentations are no longer at issue. The amended petition was corrected and supplemented with updated information. (See Ulikhanova, supra, 2018 U.S. Dist. LEXIS 231369 at 9-10 [“If probable cause to remove P.G. from Ulikhanova's home continues to exist even after amendment and correction of the Application for Removal to remove the taint of the deceptive statements and omissions, "then no constitutional error has occurred.”].) Beltran does not address state immunity against state-law claims.

As to state-immunity against state-law claims, Plaintiffs cite to Cal. Gov. Code § 820.21. The Court has addressed this statute, ante. The pleadings do not address that any action done by COLA Defendants was done with malice and, as such, Cal. Gov. Code § 820.21 is inapplicable.

Finally, as to Mejia and COLA, Plaintiffs apply the doctrine of respondeat superior. Specifically for Mejia, Plaintiffs admit “Rina Mejia did nothing in the investigation.” (Pl.’s Responses to UMFs No. 25.) Plaintiffs cited case does not come up with the citation provided. The Court believes that Plaintiffs seek to use United States v. Town of Colo. City (9th Cir. 2019) 935 F.3d 804.This case clearly states that it focuses on 34 U.S.C.S. § 12601 (“§ 12601”) and that § 12601 is distinguished from § 1983 claims as Monell remains the exception to the general rule and, as such § 12601 is unlike § 1983 as it (1) “does not include the words ‘under color of any law, statute, ordinance, regulation, custom or usage” and such wording shows “Congress expressly contemplated imposing liability on actors who violated constitutional rights under an official policy[;]” and (2) “does not limit liability to those who ‘cause [citizens or persons] to be subjected’ to a deprivation of their constitutional rights[,]” interpreted by Monell as “imposing liability ‘on a government that, under color of some official policy, “causes” an employee to violate another's constitutional rights.’ ” (Town of Colo. City, supra, 935 F.3d 804 at 809.) As such, repondeat superior does not apply.

The Court notes that, though Plaintiffs attempt to argue that § 12601 is applicable in this case, no § 12601 action has been pled. Further, Plaintiffs’ TAC specifically pleads two is a § 1983 claims separated into deprivation of familial rights, this cause of action, and Monell claims, the fifth cause of action.

It appears to the Court that the Plaintiffs seek to use and discard Monell in an inconsistent fashion.

Plaintiffs have thus failed to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto as to their Fourth Cause of Action.

iii. Fifth Cause of Action Violation of Civil Right (Monell Related Claims) [42 United States Code § 1983]) (“Monell Claims”)

The TAC alleges the Monell claims against all COLA Defendants. The TAC alleges that COLA Defendants were acting under state law, COLA Defendants deprived Plaintiffs of their constitutional right to be free from interference with familial relations when it detained SLD in absence of exigent any circumstances and failed to return SLD to Plaintiffs’ custody, COLA Defendants acted pursuant to an “expressly adopted unofficial policy or a widespread or long-standing practice or custom” of detaining children in the absence of exigent circumstances or other legal basis and/or failing to return custody of children to non-offending parents in order to obtain Federal and State funds when there was no legal basis for such detention and receipt of State or Federal fund, and the unofficial policy or custom is so closely related to the deprivation of Plaintiffs’ right as to be the moving force that caused the ultimate injury.

By way of its own legal research, it has come to the Court’s attention that the Monell Claims may not have been properly pled.

“Monell provides that a governmental entity may only be held liable where the entity causes a constitutional violation. To establish Monell liability, ‘ “a plaintiff must ‘identify the challenged policy, [practice, or custom,] attribute it to the [county] itself, and show a causal link between the execution of the policy, [practice, or custom,] and the injury suffered.’ ” [Citation.] In addition, plaintiffs must “present scienter-like evidence of indifference on the part of a particular policymaker or policymakers.” [Citation.] The requirement of producing scienter-like evidence on the part of an official with policymaking authority is consistent with the conclusion that “absent the conscious decision or deliberate indifference of some natural person, a [governmental entity], as an abstract entity, cannot be deemed to have engaged in a constitutional violation by virtue of a policy, a custom or failure to train.” [Citation.] “[I]n the absence of any unconstitutional statute or rule, it is plaintiffs’ burden to articulate a factual basis that demonstrates considerably more proof than a single incident.” ’ ” (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051, 1064 [emphasis added].)

Monell liability may be imposed for constitutional violations resulting from the persistent albeit informal conduct of public employees. (Monell, supra, 436 US 658. See, e.g., Thompson v. City of Los Angeles (9th Cir 1989) 885 F2d 1439 [county maintained "custom" of bed shortages, amounting to unconstitutional punishment of pretrial detainees forced to spend nights in jail]; Shaw v. California Dep't of Alcoholic Beverage Control (9th Cir 1986) 788 F2d 600 [pattern of misconduct by police officers for repeated discriminatory law enforcement acts against black bar owners stated §1983 claim]. If a plaintiff attempts to impose Monell liability based on an informal custom or practice there can be no liability without proof that the public employees' informal conduct was so frequent and pervasive that it must necessarily have come to the attention of responsible policy makers who then acted with "deliberate indifference" in failing to correct that conduct. That is, the mere fact that the purportedly unconstitutional conduct of officers may be apparent to lower-level supervisors or non-policy-making officials is insufficient to impose Monell liability. (See City of St. Louis v Praprotnik (1988) 485 US 112, 127-29. See also Bach v County of Butte (1983) 147 Cal.App.3d 554, 570 [actions of deputy prosecutor did not represent official policy or custom sufficient to impose Monell liability under 42 USC §1983].)

Whether a particular individual is a policy maker is determined under state law. (City of St. Louis v Praprotnik, supra, 485 US 112, 123-24.) This is a question of law that must be determined by a court and not a jury. (Jett v Dallas Indep. Sch. Dist. (1989) 491 US 701, 737 [questioned on other grounds]; Pitts v. County of Kern (1998) 17 Cal.4th 340, 352-53.)

Plaintiffs’ Monell Claims do not allege any knowledge on behalf of a policymaker.

Plaintiffs are informed, believe and thereon allege that DCFS is engaged in a practice and officially adopted policy of removing children in absence of exigent circumstances and also failing to place or replace them with non-offending parents on an ongoing and continuous basis for at least the last 20 years and continues to engage in said practices on an ongoing and daily basis in order to qualify for and receive Federal and State funds when there is no legal or factual basis for the detention of children from their parents, for the reasons set forth in the next paragraph.

Plaintiffs are informed, believe and thereon allege that every time Defendant COUNTY seizes and detains a child, Defendant COUNTY receives money from the Federal government, so in essence, Defendant COUNTY has a financial incentive to remove children from the homes of their parents although there may be no evidence of exigent circumstances or legal basis to do so. Plaintiffs further allege that Defendant COUNTY received Federal money based upon the removal of "SLD" from Plaintiff's care and custody. This conduct by Defendants YESENIA SERIANO and RIMA MEJIA was undertaken with a malicious intent to injure Plaintiffs and in particular Plaintiff LOPEZ and "SLD" and justify the wrongful and unconstitutional detention of "SLD" in order to support a basis for a [f]inding by the Dependency Court justifying the receipt of Federal funds by Defendant COUNTY. In essence, Defendant COUNTY removes children from the homes of parents who have done nothing wrong and may even have been victims, just so it can get money from the Federal and State government.

In connection with the foregoing, Plaintiffs are informed, believe and thereon allege that it is the policy, practice and/or custom of Defendant COUNTY and DCFS to set forth allegations in Juvenile Dependency Petitions against parents claiming violations of Welfare and Institutions Code 5300 et seq., regardless of whether or not said Defendants, and each of them, are then in possession of reasonable and articulable evidence to support the claims. Plaintiffs are informed, believe and thereon allege that Defendant COUNTY has engaged in this practice on a mass scale to obtain substantial Federal and State funds to support the care of dependent minors when, in cases like this, there is no legal basis to remove children from their parents and such conduct is solely to obtain money for Defendant COUNTY's own use and profit. Plaintiffs are further informed, believe and thereon allege tha.t it is and has been the policy, practice and/or custom of Defendant COUNTY and DCFS to conduct itself in this manner since at least 2000.

Defendant COUNTY and DOES 16 to 20 established, adopted, followed, and implemented or turned a blind eye to these customs and practices which were followed and carried out by the social worker Defendants and DOES 16 to 20 and Plaintiffs constitutional rights were violated when their daughter was seized without evidence of any exigent circumstances or imminent harm.

Plaintiffs are informed, believe and thereon allege that it is part of this policy, practice and (or custom of Defendant COUNTY and DCFS social workers to mislead the Court under penalty of perjury by failing to include exculpatory evidence when a child has been detained or may be detained from a non-offending parent as a means of intimidating and coercing parents into accepting a. lesser "charg with a sustained Dependency Petition or to force parents to Trial, knowing that the odds favor sustension of a Dependency Petition, thereby enabling Defendant COUNTY to record the case as a positive outcome for. purposes of statistical analysis in order to obtain funding from the State and Federal government.

At the time of the events set forth above, the established illegal and unconstitutional customs and practices that were followed, complied with and carried out by Defendant COUNTY and was the proximate cause of violation of Plaintiff's Constitutional rights include, but are not limited to:

a. The custom and practice of detaining and removing children from their family and homes without the presence of exigent circumstances (imminent danger of serious bodily injury or emotional harm) or consent and the failure to place children with a non-offending parent when the child has been removed and a nonoffending parent is available;

b. The custom and/or practice of removing and detaining children and continuing to detain them for an unreasonable period long after an alleged basis for detention is negated[;]

c. The custom and practice of detaining children in order to obtain Federal and State funds based on the number of children that have been detained when there was no basis for the detention of said children and said children could have been placed with non-offending parents because there was an absence of exigent circumstances with respect to the non-offending parent;

d. The unwritten policy of acting with deliberate indifference to the rights of children and parents with whom DCFS agents can regularly be expected to come into contact, by failing and/or refusing to implement the practice of regular and adequate training and/or supervision, and/or by failing to train and/or supervise its officers, agents, employees and state actors, and provide and ensure compliance with the Constitutional protections guaranteed to individuals, including those under the First, Fourth and Fourteenth Amendments, not to have their children removed absent the presence of exigent circumstances when performing actions related to child abuse and dependency type investigations; and

e. The consistent failure by Defendant COUNTY to investigate violations of Constitutional rights by social workers and consistent failure to discipline social workers and their supervisors involved in Constitutional violations of citizen’s Constitutional rights was a routine and customary practice for Defendant COUNTY and its social workers.

Defendant COUNTY is aware that its social workers detain children from the care of their parent[s] when there is no exigent circumstance, in contravention of the rights of both parents and children. Nevertheless, Defendant COUNTY has made a knowing and conscious decision to prevent such misconduct, and has consistently and knowingly failed to educate or inform its social workers that it is unconstitutional to detain a child from its parents and certainly a non-offending parent unless exigent circumstances are present which justify removal of a child.

Defendant COUNTY's decision to disregard these Constitutional protections in the face of such policies in order to prevent the specific misconduct alleged herein i.e. the known need for specific policies prohibiting social workers from seizing children from their parents absent the presence of an exigent circumstance and refusing to replace children with a non-offending parent, is itself a "policy" decision on and practice which constitutes a policy of deliberate indifference

Plaintiffs use COLA broadly, without referencing who in COLA possessed knowledge of the alleged custom; thus, failing to identify a particular policymaker or policymakers who had indifference to the alleged custom.

Plaintiffs name only two people who have knowledge of the custom: Serrano and Mejia. Serrano is a social worker with no supervisory powers. Mejia is Serrano’s supervisor. The question of whether Mejia is a “policymaker” depends on whether a position is a "policymaking" position depends on “the normal duties and responsibilities of the job, not on what the employee was actually doing immediately before being fired.” (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1648.) The Court takes judicial notice of the responsibilities of a supervising social worker under Cal. Evid. Code § 452(c) [(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States] and (h) [Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy]. They are listed as:

· Reviews, monitors, and trains CSWs conducting a full-range of client-related and case management services assessments, and investigations throughout the life of the referral/case by (a) collecting relevant information (e.g. observing the child's well-being and living environment; interviewing reporting parties, clients, suspected perpetrators; collateral contacts; service providers; consulting with colleagues, supervisors; conducting home inspections and assessment of prospective caregivers; monitoring visitations; researching case history files, court reports, official personal records; extrapolating data from CWS/CMS, WCMIS, LRS, FCI, CACI, CLETS, ESCARS, JADE; and/or taking photographs of the child or living environment; etc.), (b) evaluating relevant information to determine the validity of an allegation and assess a child's and/or family's strengths and needs, (c) and determining, implementing, and monitoring the appropriate service or course of action (e.g., initiating preventative measures so that the child remains in home, developing with the client a plan that mitigates immediate safety threats, or removing a child from the home, etc.) and obtain approval through consultation with supervisor/administrator to complete the various actions and processes related to client services in order to secure the child's safety and ensure that the child and/or family receives the most appropriate client service that's in the child's best interest according to Federal and California State laws and regulations, departmental policies and procedures, and within established time frames.

· Engages with a variety of individuals (e.g., the client(s), law enforcement personnel, attorneys, representatives from County and outside providers, and the public) on civil rights, legal rights and responsibilities, and other numerous issues (e.g., reasons for placement, availability of relinquishment, adoptions, court processes, non-case related general information, etc.) in accordance with Federal and California State laws and regulations and Department policies and procedures related to confidentiality by explaining information in a patient and clear manner, providing written information (e.g. instructions and pamphlets in their primary language, as necessary), defusing a hostile or high-stress situation (as appropriate), using active listening skills with the person, and/or applying motivational techniques (e.g., strength-based language) in order to promote the emotional well-being of the child; encourage clients to participate in services that promote and cultivate a safe and stable environment for the child; ensure that individuals are properly informed about any requests, processes, or actions taken; and ensure that any information provided is understood, complete, and accurate.

· Teams with clients and/or community partners to provide resources to children and families (e.g. Upfront Assessment, CSAT, Youth Development Services, Adoption Assistance Program, Family Preservation Program, ARS, drug testing and rehabilitation programs, Department of Mental Health immediate and ongoing assessments and referrals, etc.) throughout the life of the referral/case in order to address the client's or the family's immediate or long –term basic needs (e.g. in physical/mental health, emancipation, substance abuse, housing, food, employment, child care, transportation, and education) and monitor compliance with case plan activities by helping clients identify their needs for other services and by either providing the client pertinent information to obtain assistance orcoordinating with other County departments or agencies/community resources to arrange for service delivery (e.g. scheduling appointments for the client, referring the client for drug testing, transporting a child to a counseling session, etc.).

· Resolves day-to-day issues and challenges presented by a variety of individuals (e.g., clients, the courts, co-workers, supervisors, administrators, public, etc.), by teaming and engaging, by gathering and analyzing relevant information; coordinating activities with other public, private, and community partners (including law enforcement, various court systems, probation, group and foster homes, medical personnel, school personnel, public health nurses, other emergency services, etc.); handling and mediating conflict among relevant parties; and communicating and interacting with the appropriate people in order to ensure prompt and efficient delivery of client services in accordance with Federal and California State laws and regulations and Department policies and procedures.

· Represents the Department/unit at various meetings (e.g. CFTM, staff meetings; training sessions; conferences; community events; court hearing, meetings with specific groups, such as IEP, MCPC, Regional Center; etc.) by preparing for and attending the meeting in order to orally communicate information to others, educate others and oneself on various topics, address concerns raised by relevant groups, and/or advocate for the child/family during the meeting.

· Performs various court-related activities pertaining to client services by examining case history and reviewing court reports, petitions, and court orders. This may include referencing the Welfare & Institutions Code; obtaining information from County Counsel and attorneys; ensuring that notices to appropriate parties and all court documents are legally sufficient; completing and obtaining appropriate court-related paperwork (e.g., family law orders, medical reports, toxicology reports, pictures, historical documents, progress letters and certificates of completions of court-ordered programs, etc.); obtaining authorizations for various purposes; testifying in court, etc. to ensure the protection of a child and the rights of the family, to initiate a process related to client services (e.g., removal orders, investigative warrants, protective custody warrants, dependency hearings, in-and-out/removal of incarcerated parents, delinquency hearings, permanency hearings, termination of parental rights, etc.), to make recommendations to the court, and to ensure that all court documents are legally sufficient in accordance with Federal and California State laws and regulations and are completed with established time frames.

· Oversees casework services performed by a unit of Children's Social Workers (CSWs) by planning, directing, scheduling, and coordinating the work activities in order to ensure quality social services to children and families. This may include but is not limited to (a) Maintains a uniform workflow by evaluating the workload, determining priorities, assigning and reassigning cases to employees, and balancing caseloads within your assigned unit to ensure equity and meet deadlines. (b) Reports to and updates an Assistant Regional Administrator on the status and quality of work being performed by initiating case conference and reviewing utilization reports in order to ensure that deadlines are met and priorities are appropriately set. (c) Conducts unit meetings to discuss and interpret new policies, procedures, and regulations, and to discuss the need for improving case management techniques.

· Supervises CSWs and support staff (e.g., HSA's, IC/ITC, Technical Assistants) who provide services to children and families by performing a full range of duties, which includes coaching, advising, motivating, training, supporting, and disciplining employees; reviewing and approving employees' work products (e.g., case plans and reports); and evaluating work performance in order to ensure quality social services are appropriately determined and efficiently delivered for the child and family according to Federal and California State laws and Department policies, procedures, and regulations. This may include but is not limited to (a) Arranges and monitors work schedule (e.g., vacations, holidays, time-off, overtime for employees, etc.). (b) Reviews case documents (e.g., plans and reports) and utilization reports in order to monitor and evaluate a CSWs workload and productivity. (c) Monitors a CSWs case plan for a child and family in order to provide the child and family with the most appropriate social service (e.g., CFT health services, housing, food, employment, child care, transportation, community-based resources, etc.) by following the provisions of the various children services programs

· Conducts assessments as needed or directed by gathering and analyzing relevant information in order to determine and deliver the most appropriate social service for the child and family according to Federal and California State laws and Department policies, procedures, and regulations. This may include but is not limited (a) Researches and collects pertinent written and/or numerical information from a variety of sources, including individuals (e.g., children, parents, relatives, attorneys, judges, representatives from County departments or external private/public agencies, and other persons on an as needed basis); existing case files, court reports, and other related documents; or legal references (e.g., California Welfare and Institutions Code, California Penal Code, or California Vehicle Code). (b) Reviews cases and related documents (e.g., case plans and records, court reports, decisions made by the social worker, eligibility documentation, etc.) in order to ensure timeliness, accuracy, consistency, and compliance with laws, regulations, and policies. (c) Analyzes and interprets data in order to determine trends and commonalities. (d) Determines the most appropriate action based on the gathered information. (e) Communicates, orally and in writing, to the appropriate person(s) any recommendation for action. Persons include CSWs, administrators, attorneys, judges, parents, childcare providers, the child, etc.

· Teams with other social services programs, public and private agencies, and community agencies (including law enforcement and other emergency services) by communicating and interacting with the appropriate people in order to ensure prompt and efficient delivery of social services for the child and family.

· Stays current with knowledge related to child welfare and staff development and supervision (e.g., changes in Federal, State, or local laws and regulations; changes in Department policies and procedures; developments in best practices; shared core practice model, etc.) in order to determine its impact on providing social services for children and families by attending professional trainings, conferences, and workshops and reviewing information obtained from the intranet/internet, etc.

· Trains new and existing staff (e.g., CSWs, Human Services Aides, support staff, etc.) on a variety of policies and procedures (e.g., new and existing laws and mandates, monitoring visits, court calendars, documenting procedures, etc.) by providing one-on-one, and group training sessions.

Mejia’s role is purely managerial and her decisions do not represent the official policy of the local governmental entity. (See Jett v. Dallas Independent School Dist., supra, 491 U.S. 701, 737 ["[T]he identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury." (Original italics.)].)

Accordingly, on its own motion, the Court strikes Plaintiffs’ Fifth Cause of Action under the authority vested in it by Cal. Code Civ. Proc. § 436(b) for the Monell Claims as it not drawn in conformity with the laws of this state as a necessary allegation is absent. The Court also believes that Plaintiffs’ Monell Claims must be stricken due to equity as it is an impossibility for COLA Defendants to refute Plaintiffs’ Monell Claims when no specific evidence of the custom is alleged and no individual policymaker or policymakers are named as having knowledge of the alleged custom. (See Huang v. Hanks (2018) 23 Cal.App.5th 179, 181-182 [courts have inherent power to control their proceedings, including fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation].)

The Court has taken COLA Defendants’ Reply into consideration. It does not change the Court’s analysis. The Court notes that COLA Defendants take issue with (1) the length of Plaintiffs’ memorandum length, and (2) Plaintiffs’ new Separate Statement. The Court agrees with Plaintiffs’ arguments. Specifically, Cal. Rules of Court, Rule 3.1113(d) provides: “In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.” The following subsection provides: “A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit.” (Id. at (e).) Jossen attempts to get around this Rule of Court by his late filed declaration in which he states that he knows he went over the page limit, has no objection to the Court continuing the MSJ, and is willing to stipulate that COLA Defendants’ Reply can exceed the page limits as well. The Court does not condone Jossen’s actions. It is not up to Jossen to determine whether the parties can exceed the page limit. Jossen was to file an ex parte application regarding the page limit under Cal. Rules of Court, Rule 3.1113(e), but elected not to do so. However, for the interests of justice (i.e., Plaintiffs’ due process rights), the Court considers the arguments presented as well as the new separate statement. The Court highlights that the separate statement is only considered in the context of the arguments presented by Plaintiffs.

To the extent that any facts or arguments brought by the parties have not been cited in this statement of decision, the Court believes that its analysis adequately encompasses or disposes of such facts or arguments.

Defendants County of Los Angeles, Yesenia Serrano, Vilma Hernandez, and Rina Mejia’s Motion for a Protective Order that Defendants be Relieved from Providing Further Responses for Plaintiffs’ Request for Admission, Set One, is MOOT.

Defendants County of Los Angeles, Yesenia Serrano, Vilma Hernandez, and Rina Mejia’s Motion for Summary Judgment is DENIED.

Defendants County of Los Angeles, Yesenia Serrano, Vilma Hernandez, and Rina Mejia’s Motion for Summary Adjudication on Plaintiffs’ Viveana Lopez and Omar Duron Rodriguez, individually and as Successors in Interest to SLD’s Third Cause of Action for Breach of Mandatory Duties is GRANTED.

Defendants County of Los Angeles, Yesenia Serrano, Vilma Hernandez, and Rina Mejia’s Motion for Summary Adjudication on Plaintiffs’ Viveana Lopez and Omar Duron Rodriguez, individually and as Successors in Interest to SLD’s Fourth Cause of Action for Violation of Civil Right (Deprivation of Familial Relations under 42 U.S.C. § 1983) is GRANTED.

[1] The parties use dependency court and juvenile court interchangeably. The Court elects to do so as well.

[2] Defendants Emma Onofre and Daniel Onofre share the same surname. The Court addresses each by their first name for the purpose of clarity. No disrespect is meant.

[3] Herein after any references to 42 United States Code § 1983 shall be “§ 1983 Claim”

[4] The Court notes that Ulikhanova v. Los Angeles, 2018 U.S. Dist. LEXIS 231369 held that Alicia T. v. County of Los Angeles (1990) 222 Cal. App. 3d 869 (“Alicia T.”) was controlling; however, was written prior to the addition of Cal. Gov. Code § 820.21. The Court acknowledges this and addresses § 820.21.