1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CAROLINA HIPSCHMAN, an Case No.: 22-cv-00903-AJB-BLM individual; ALEXANDER 12 HIPSCHMAN, an individual, ORDER GRANTING IN PART AND 13 DENYING IN PART DEFENDANTS’ Plaintiffs, MOTION TO DISMISS 14 v. 15 (Doc. No. 32) COUNTY OF SAN DIEGO, a public 16 entity; NIDIA ROMERO, an individual; 17 ELIZABETH SAMUELS, an individual; JOSE PADILLA, an individual; MARY 18 SHEHEE, an individual; DOE HHSA 19 WORKERS 2-10, known but unidentified individuals; and DOES 1 20 THROUGH 20, inclusive, 21 Defendants. 22 23 24 This is a civil rights action arising out of the County of San Diego’s social workers’ 25 decision to remove then nine-month-old C.H. from his parents’ care during a hospital visit. 26 C.H.’s parents, Plaintiffs Carolina Hipschman (“Ms. Hipschman”) and Alexander 27 Hipschman (“Mr. Hipschman”), filed a 42 U.S.C. § 1983 action against Defendants County 28 of San Diego (“County”) and its social workers Nidia Romero (“Ms. Romero”), Jose 1 Padilla (“Mr. Padilla”), Elizabeth Samuels (“Ms. Samuels”), and Mary Shehee (“Ms. 2 Shehee”). The operative complaint is the First Amended Complaint (“FAC”). (Doc. No. 3 24.) Therein, Plaintiffs bring § 1983 claims for unwarranted seizure, coerced/unwarranted 4 medical exams and procedures, judicial deception, malicious prosecution, and municipal 5 liability. (Id.) 6 Before the Court is Defendants’ motion to dismiss the FAC. (Doc. No. 32.) Plaintiffs 7 filed an opposition, to which Defendants replied. (Doc. Nos. 40, 41.) For the reasons set 8 forth below, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion. 9 I. BACKGROUND1 10 On the morning of June 26, 2020, Ms. Hipschman picked up C.H. from his crib and 11 noticed a small swelling on the side of his head. She pointed out the bump to her husband, 12 and they decided to take him to Sharp Chula Vista Medical Center for examination. C.H. 13 was not found to be in any pain or distress, and no significant abnormalities were noted 14 other than the minor swelling. Because the hospital did not have the necessary imaging 15 equipment to do a pediatrics scan, medical staff told Plaintiffs to take C.H. to Rady 16 Children’s Hospital (“Rady”), which they did. 17 At Rady, a CT scan was ordered, and it showed a hairline fracture on the left side of 18 C.H.’s skull with some external bruising and minimal internal injury. Dr. Plonsker, a 19 neurosurgeon, discussed the CT scan results with Ms. Hipschman. Dr. Plonsker explained 20 that the fracture was minimal, that there was a little bleeding, but it was outside the brain, 21 and that the injury was not severe. Dr. Plonsker also informed Ms. Hispchman that the 22 nature of C.H.’s injuries happen often to infants and young children. Dr. Plonsker reassured 23 Ms. Hipschman that C.H. would be fine and had no concerns about his prognosis. In an 24 abundance of caution, Dr. Plonsker suggested C.H. remain in the hospital overnight for 25 observation, and Ms. Hipschman agreed. Plaintiffs stayed in the hospital room with C.H. 26 the entire day. 27 1 The following facts are taken from the FAC, which the Court assumes as true for purposes 28 1 Due to the type of injury C.H. sustained, and in accordance with standard hospital 2 protocol, a report was submitted to the San Diego County Health and Human Services 3 Agency (“HHSA”), and Defendant Ms. Romero was assigned to investigate the referral. 4 Upon Ms. Romero’s arrival to Rady, she was provided a copy of a written consultation 5 conducted by Dr. Vega. Dr. Vega was not C.H.’s treating physician and had not spoken 6 with Plaintiffs or anyone else to ascertain the likely cause of C.H.’s injury. Dr. Vega’s 7 report stated, “In the absence of a plausible explanation, this injury is highly concerning of 8 non-accidental trauma.” Ms. Romero then consulted with her supervisor, Defendant Mr. 9 Padilla, about her investigation, and they made the decision to seize C.H. from Plaintiffs’ 10 custody based on Dr. Vega’s report. Ms. Romero did not speak with Dr. Vega or any of 11 C.H.’s treating physicians that day. 12 After consulting with Mr. Padilla, around 8:30 p.m., Ms. Romero went into C.H’s 13 hospital room along with two police officers to speak with each parent separately. Plaintiffs 14 provided Ms. Romero the same information they had given to C.H.’s medical providers. 15 Ms. Hipschman also explained to Ms. Romero that C.H.’s treating physicians stated that 16 C.H.’s exam was reassuring, that the injury was not severe, and that he was expected to 17 heal on his own without medical intervention. She further relayed that the treating 18 physicians informed her that C.H.’s injury commonly seen after birth and is usually caused 19 by forceful external pressure to the baby’s head during vaginal delivery, but that it could 20 also have been caused by other things, like a bump or a fall. 21 In response to Ms. Hipschman’s explanations, Ms. Romero stated, “Your baby has 22 a broken skull. Somebody had to have hit him really hard over the head, like with a bat or 23 something.” When Ms. Hipschman asked Ms. Romero why she thought C.H. was hit by a 24 bat, Ms. Romero stated that a medical specialist told her that. When Ms. Hipschman asked 25 Ms. Romero for the medical specialist’s name, Ms. Romero replied, “I can’t tell you who 26 it was. You don’t need to know who it is. Just know that you’re being investigated for child 27 abuse and if you were a good parent, you would know what is wrong with your son. 28 Somebody did this to him and I’m going to find out who.” 1 When Ms. Romero interviewed Mr. Hipschman, he gave a general timeline of events 2 leading up to the hospital visit. He provided the same information he previously recounted 3 to C.H.’s treating physicians, including that the day before they saw the bump on C.H.’s 4 head, C.H. had rolled off his floor mat and stuck his head on the floor, accidentally bumped 5 his head against his crib, and had hit his head on his grandmother’s mouth. The treating 6 physicians indicated these events could have caused the injury. 7 After Plaintiffs’ respective interviews, Ms. Romero told Plaintiffs, “somebody did 8 this to him, you need to figure it out. Somebody hit him. I am the one who gets to decide 9 whether or not he goes home.” Plaintiffs referred Ms. Romero to C.H.’s treating physicians, 10 particularly, Dr. Plonsker. According to Plaintiffs, Ms. Romero did not speak with C.H.’s 11 treating physicians or attending staff, nor did she review his medical records. Ms. Romero 12 told Plaintiffs that she was placing C.H. on a hospital hold, that they were not allowed to 13 take C.H. home, and that he was now in the County’s custody. Ms. Romero thereafter 14 exited the room, leaving C.H. alone with his parents. 15 Around 12:00 p.m. the following day on June 27, 2020, Ms. Romero returned to the 16 hospital and joined a conference call with two detectives and Dr. Suresh, who was part of 17 Rady’s Chadwick Center Child Protection Team. Dr. Suresh told Ms. Romero that the 18 injury was “not a result of shaking the baby” and “not necessarily an abusive type injury.” 19 Dr. Suresh also did not rule out Plaintiffs’ explanations for C.H.’s injuries as possible 20 causes. Ms. Romero and the two detectives subsequently spoke about the information they 21 gathered. The detectives stated they had no crime scene, no weapon, and no suspect. They 22 also noted to Ms. Romero that the doctors were not concerned about the hairline fracture. 23 Ms. Romero later consulted with Mr. Padilla and together agreed that C.H. would 24 not be discharged to his parents and instead transferred to the County’s Polinsky Children’s 25 Center (“Polinsky Center”). C.H. was then discharged to Ms. Romero and removed from 26 Plaintiffs’ care without a warrant and over their objections. At that time, Ms. Romero also 27 forced Ms. Hipschman to sign a medical treatment authorization form, stating “you don’t 28 have a choice, you have to sign it. If you don’t, then I will just let my supervisor know and 1 we will let the judge know you are not cooperative, and that won’t be good for you guys at 2 all.” Ms. Hipschman thereafter signed the form under protest. Later that day, Mr. Padilla 3 directed Ms. Samuels to place C.H. with a foster parent in Oceanside, California, more than 4 an hour away from Plaintiffs’ home in Chula Vista, California. 5 On June 29, 2020, C.H.’s case, which included Ms. Romero’s investigation notes, 6 was transferred to Defendant Ms. Samuels, who conducted her own investigation. Ms. 7 Samuels contacted Dr. Vega to inquire about her consultation report, specifically whether 8 the C.H.’s injury could have happened by accident. Dr. Vega explained that because she 9 had not been provided any explanation for the injury when her consultation was requested, 10 her default position was to express a concern about non-accidental trauma. 11 The next day, on June 30, 2020, Ms. Samuels drafted and filed, after consultation 12 with her supervisor Defendant Ms. Shehee, a “Juvenile Dependency Petition” to initiate an 13 action to remove C.H. from Plaintiffs’ custody. The Petition exaggerated C.H.’s injuries, 14 stating that the “injury is of such a nature as would ordinarily not be sustained except as 15 the result of the unreasonable or neglectful acts or omissions of the parent,” and that “there 16 is substantial risk that the child will suffer serious physical harm.” Plaintiffs allege that, at 17 the time she created the Petition, Ms. Samuels knew that, according to C.H.’s treating 18 doctors and the detectives, that C.H.’s injury was not a severe one and could have been 19 accidental. Ms. Samuels also later filed a Detention Report, which Plaintiffs assert contains 20 incomplete and misleading information, painting a false narrative of Plaintiffs as abusive 21 and dangerous parents. 22 At the July 1, 2020 detention hearing, the juvenile court judge read and considered 23 the report into evidence and relied upon it in deciding that C.H. should continue to be 24 detained from Plaintiffs’ care. The judge also ordered that Plaintiffs be present for medical 25 appointments for C.H. 26 After the hearing, C.H. was taken to a medical check-up appointment. Dr. 27 Golembesky examined C.H. and stated to Ms. Hipschman and Ms. Samuels, “this is not an 28 abused baby.” Ms. Samuels then replied, “Doc, I’ll be the one to determine that.” 1 The next day, on July 2, 2020, Plaintiffs discovered that Ms. Samuels scheduled 2 C.H. for a full body x-ray and bone scan and assessment with Dr. Vega. Ms. Hipschman 3 voiced her objections to the additional scans, and Ms. Samuels replied: “[Y]ou are under 4 investigation. You no longer have any rights regarding C.H.’s medical decisions. If you 5 keep interfering, I’m going to tell the judge you are uncooperative, then you’ll never get 6 C.H. back.” 7 On July 8, 2020, C.H. was transferred from the foster parent to his paternal 8 grandfather. The next day, the grandfather took C.H. to the medical check-up Ms. Samuels’ 9 scheduled. Ms. Hipschman also went to the medical center, but Ms. Samuels did not allow 10 her to accompany C.H. and his grandfather to the exam room. After the exam, Dr. Vega 11 spoke with Ms. Hipschman privately and told her she did not think that C.H.’s injury was 12 caused by abuse or neglect, that she was recommending the case be dropped, and that she 13 was sorry all of this happened to Plaintiffs. Subsequently, with advice and authorization 14 from her supervisor and over Ms. Hipschman’s objections, Ms. Samuels insisted C.H. 15 undergo another bone scan. No abnormalities were found. 16 Later in the day, Ms. Samuels went to the grandfather’s house and without Plaintiffs’ 17 knowledge, consent, or presence, conducted her own physical examination of C.H. and 18 took photographs of his bare lower body, including his genitalia. When the grandfather 19 asked Ms. Samuels why she C.H. needed to undergo another exam after he had just been 20 at his medical appointments, Ms. Samuels responded, “it is just something I need to do. If 21 you interfere, I’ll remove him and put him back in foster care.” 22 A month later, on August 4, 2020, the juvenile court dismissed the case and made 23 no findings of abuse or neglect by either parents. Plaintiffs regained full custody of C.H. 24 Plaintiffs subsequently filed a formal complaint with HHSA for the unwarranted seizure, 25 medical exams, and treatment. HHSA found their complaint partially founded, and 26 program managers apologized to Plaintiffs and offered to use their experience as “a training 27 tool.” The instant lawsuit followed. 28 1 II. LEGAL STANDARD 2 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the 3 complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to 4 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 5 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 6 (citation omitted). Facial plausibility is satisfied “when the plaintiff pleads factual content 7 that allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. To determine the sufficiency of the complaint, the court must 9 assume the truth of all factual allegations therein and construe them in the light most 10 favorable to the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 11 1996). 12 III. DISCUSSION2 13 In their motion to dismiss, Defendants argue that: (1) Ms. Romero and Mr. Padilla 14 are entitled to qualified immunity for removing C.H. from Plaintiffs’ care; (2) Plaintiffs 15 fail to state a claim against Ms. Romero, Ms. Samuels, and Ms. Shehee for judicial 16 deception; (3) Ms. Samuels in entitled to qualified immunity for Plaintiffs’ claim that C.H. 17 received medical examinations in the County’s custody without parental notice or consent; 18 (4) Plaintiffs fail to state a malicious prosecution claim against Ms. Romero, Ms. Samuels, 19 and Ms. Shehee; (5) Plaintiffs fail to state a claim for punitive damages against the social 20 21 2 The Court DENIES Defendants’ request for judicial notice (Doc. No. 32-2), finding “[t]he overuse and improper application of judicial notice.” the request reflects 22 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). Defendants 23 seek to have considered several juvenile court records. The information in the documents, however, are disputed, and thus, cannot be judicially noticed. See id. at 999. 24 The Court also DENIES Defendants’ request to have the documents considered under 25 the incorporation by reference doctrine, finding it an impermissible attempt “to insert their own version of events into the complaint to defeat otherwise cognizable claims” at 26 this stage of the proceedings. See id. at 1002. Consideration of these materials would 27 be more appropriate in connection with a motion for summary judgment. Finally, as Defendants’ motion to seal concerns the juvenile court records the Court declines to 28 1 worker defendants; and (6) Plaintiffs fail to state a claim for municipal liability against the 2 County. The Court considers Defendants’ arguments in turn. 3 A. Qualified Immunity 4 Qualified immunity shields a government official from liability for civil damages if 5 (1) the law governing the official’s conduct was clearly established; and (2) under that law, 6 the official objectively could have believed that her conduct was lawful.” Mabe v. San 7 Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001). Where, 8 as here, the defendants assert qualified immunity in a motion to dismiss under Rule 9 12(b)(6), dismissal is not appropriate unless the court can determine, based on the 10 complaint itself, that qualified immunity applies. O’Brien v. Welty, 818 F.3d 920, 936 (9th 11 Cir. 2016) (quoting Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)). In considering 12 qualified immunity, the court must accept the allegations in the plaintiff’s complaint as true 13 and construe them in the light most favorable to the plaintiff. Hyde v. City of Willcox, 23 14 F.4th 863, 869 (9th Cir. 2022). “If the operative complaint contains even one allegation of 15 a harmful act that would constitute a violation of a clearly established constitutional right, 16 then plaintiffs are entitled to go forward with their claims.” Keates v. Koile, 883 F.3d 1228, 17 1235 (9th Cir. 2018) (internal quotations and citation omitted). 18 As to the first prong of the qualified immunity test, “[a] right is clearly established 19 if the contours of the right are sufficiently clear that a reasonable official would understand 20 that what [s]he is doing violates that right.” Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 21 1297 (9th Cir. 2007) (internal alterations, quotations, and citation omitted). “The right must 22 be settled law, meaning that it must be clearly established by controlling authority or a 23 robust consensus of cases of persuasive authority.” Tuuamalemalo v. Greene, 946 F.3d 24 471, 477 (9th Cir. 2019). As to the second prong, the test focuses on “whether a reasonable 25 official could have believed her conduct was lawful.” Mabe, 237 F.3d at 1107. 26 27 28 1 1) Removal from Plaintiffs’ Care 2 a. Clearly Established Law 3 Defendants argue that Ms. Romero and Mr. Padilla are entitled to qualified immunity 4 on Plaintiffs’ cause of action for unwarranted seizure because Plaintiffs have not identified 5 clearly established law governing the social workers’ removal of C.H. from Plaintiffs’ care. 6 The Court disagrees. 7 “In 1993, it was clear that a parent had a constitutionally protected right to the care 8 and custody of his children and that he could not be summarily deprived of that custody 9 without notice and a hearing, except when the children were in imminent danger.” Ram v. 10 Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997). The Ninth Circuit reaffirmed this holding in 11 Wallis and specified that “the state may not remove children from their parents’ custody 12 without a court order unless there is specific, articulable evidence that provides reasonable 13 cause to believe that a child is in imminent danger of abuse.” Wallis v. Spencer, 202 F.3d 14 1126, 1138 (9th Cir. 2000). The Wallis court further instructed that an official “cannot seize 15 children suspected of being abused or neglected unless reasonable avenues of investigation 16 are first pursued, particularly where it is not clear that a crime has been—or will be— 17 committed.” Id. Since Wallis, the Ninth Circuit has continued to apply this exigency 18 requirement to a warrantless removal of a child from his parent. See Mabe, 237 F.3d at 19 1107; Rogers, 487 F.3d at 1294; Keates, 883 F.3d at 1238. 20 The Court is unpersuaded by Defendants’ argument that to defeat their qualified 21 immunity defense, Plaintiffs must point to a case with factual allegations similar to those 22 raised here. There need not be “a prior case with identical, or even materially similar facts” 23 to find a law was clearly established. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 24 (9th Cir. 2006) (internal quotations omitted); Rogers, 487 F.3d at 1297 (same). It is enough 25 that “the preexisting law provided the defendants with fair warning that their conduct was 26 unlawful.” Kennedy, 439 F.3d at 1065 (internal quotations omitted). Ninth Circuit case law 27 sufficiently defines the contours of the right at issue here such that a reasonable official 28 had fair warning and would understand that what she is doing violates that right. See id. It 1 is “beyond debate” that existing precedent establishes that children can only be taken from 2 their parents’ custody without a warrant to protect them from imminent physical injury 3 before a warrant could be obtained. Demaree v. Pederson, 887 F.3d 870, 883 (9th Cir. 4 2018). The Ninth Circuit has “repeatedly held that a family’s rights were violated if the 5 children were removed absent an imminent risk of serious bodily harm.” Rogers, 487 F.3d 6 at 1297. Accordingly, the Court finds there was clearly established law governing Ms. 7 Romero’s and Mr. Padilla’s conduct in this case. 8 b. Objective Belief that Conduct was Lawful 9 Having found that clearly established law governs the social workers’ decision to 10 remove C.H. from Plaintiffs’ custody, the Court considers whether under the exigency 11 requirement, “the official objectively could have believed that her conduct was lawful.” 12 Mabe, 237 F.3d at 1106; accord Rogers, 487 F.3d at 1297. 13 Here, accepting the factual allegations in the FAC as true and drawing all inference 14 in the light most favorable to Plaintiffs, the Court finds no reasonable social worker would 15 have believed that C.H. was in imminent danger. Defendants argue that it was reasonable 16 for Ms. Romero to believe C.H. was in imminent danger due to the nature of the injury he 17 sustained and Dr. Vega’s written consultation report. While “serious allegations of abuse 18 which are investigated and corroborated usually gives rise to a reasonable inference of 19 imminent danger,” there was no such corroboration or reasonable investigation here. See 20 Ram, 118 F.3d at 1311; see Wallis, 202 F.3d at 1138 (An official “cannot seize children 21 suspected of being abused or neglected unless reasonable avenues of investigation are first 22 pursued.”). 23 According to the FAC, Plaintiffs informed Ms. Romero of the potential incidents 24 that could have caused C.H.’s injury, as well as the neurosurgeon’s determination that the 25 fracture was not severe, happened often to infants, and would heal without need for medical 26 intervention. Aside from the bump, C.H. was healthy, alert, and showed no signs of pain 27 or distress. Ms. Romero was thus in possession of information undermining an emergency. 28 Indeed, even after deciding to place C.H. on a hospital hold and in the County’s custody, 1 Ms. Romero left C.H. alone in his hospital room with his parents for the rest of the night 2 and the following morning—undermining a reasonable belief that C.H. was in imminent 3 danger of abuse from his parents. See, e.g., Rogers, 487 F.3d at 1295 (“an official’s prior 4 willingness to leave the children in their home militates against a finding of exigency”). 5 The FAC also indicates that Ms. Romero made no attempt to speak with Dr. Vega 6 about her report or with any of C.H.’s treating physicians to clarify the circumstances. 7 Moreover, when she returned to Rady the following day, Dr. Suresh, another consulting 8 doctor told her that the fracture was not necessarily an abusive type of injury and did not 9 rule out Plaintiffs’ explanations for the accident as possible causes. The detectives on the 10 case also informed Ms. Romero they had no crime scene, no weapon, and no suspect, and 11 reiterated that the doctors were not concerned about the fracture. That there was no 12 reasonable basis to believe a crime has been, or will be, committed further undercuts any 13 perceived risk of serious bodily harm upon C.H. 14 Faced with this information, every reasonable social worker would understand she 15 had no specific, articulable evidence that C.H. is in imminent danger of abuse, and 16 consequently, would need to obtain a warrant to remove the child from his parents. The 17 FAC alleges it takes less than four hours to obtain a warrant. Ms. Romero could have 18 obtained a warrant between the time she finished interrogating Plaintiffs and her return to 19 the hospital the next afternoon. The chances of immediate injury to C.H. in the time it 20 would take secure a warrant were very low. “So remote a risk does not establish reasonable 21 cause to believe that the children were in immediate danger.” Rogers, 487 F.3d at 1295. 22 At bottom, the FAC establishes there was no imminent danger to C.H. Yet, Ms. 23 Romero, with approval from her supervisor Mr. Padilla, decided to remove C.H. from his 24 parents’ custody without a warrant. Assuming the truth of the factual allegations in the 25 FAC and drawing all reasonable inference therefrom in Plaintiffs’ favor, the Court finds 26 no reasonable social worker could have objectively believed that C.H. was in imminent 27 danger of abuse from his parents. Because a reasonable social worker would have 28 understood that C.H. faced no imminent risk of serious bodily harm, as required by clearly 1 established law, Ms. Romero and Mr. Padilla are not entitled to qualified immunity. 2 Accordingly, the Court DENIES Defendants’ motion to dismiss on this basis. 3 2) Medical Examinations 4 a. Clearly Established Law 5 Defendants similarly argue that Ms. Samuels is entitled to qualified immunity on 6 Plaintiffs’ cause of action for coerced/unwarranted medical examination and procedures 7 because Plaintiffs have not identified case law to put Ms. Samuels on notice that her 8 conduct was unlawful. The Court again disagrees. 9 Wallis holds “parents have a right arising from the liberty interest in family 10 association to be with their children while they are receiving medical attention (or to be in 11 a waiting room or other nearby area if there is a valid reason for excluding them while all 12 or a part of the medical procedure is being conducted).” 202 F.3d at 1142. The Ninth Circuit 13 explained nine years later that “[t]he language of Wallis is clear and unambiguous: 14 government officials cannot exclude parents entirely from the location of their child’s 15 physical examination absent parental consent, some legitimate basis for exclusion, or an 16 emergency requiring immediate medical attention.” Greene v. Camreta, 588 F.3d 1011, 17 1037 (9th Cir. 2009), vacated on other grounds in 661 F.3d 1201 (9th Cir. 2011). The Ninth 18 Circuit reiterated this holding about a decade later in Mann, which makes clear “that the 19 County is required to: (1) notify the parents of a medical examination of their children; (2) 20 obtain parental consent or a court order in advance of the medical examination; and (3) 21 permit the parent to be present at the examination.” Benavidez v. Cnty. of San Diego, 993 22 F.3d 1134, 1150 (9th Cir. 2021) (citing Mann v. Cnty. of San Diego, 907 F.3d 1154, 1162 23 (9th Cir. 2018)). 24 Again, “closely analogous prior case law involving an identical fact context is not 25 required for qualified immunity to be withheld.” Id. at 1152. Preexisting precedent 26 sufficiently defined the rights at issue here such that a reasonable social worker would 27 understand that what she is doing violates the right. Accordingly, the Court finds there was 28 clearly established law governing Ms. Samuels’ conduct in this case. 1 b. Objective Belief that Conduct was Lawful 2 Having found that clearly established law governs Ms. Samuels’ decision to subject 3 C.H. to medical exams and procedures, the Court considers whether “the official 4 objectively could have believed that her conduct was lawful.” Mabe, 237 F.3d at 1106; 5 accord Rogers, 487 F.3d at 1297. 6 Assuming as true the factual allegations in the FAC and drawing all reasonable 7 inferences therefrom in Plaintiffs’ favor, the Court finds no reasonable social worker could 8 have objectively believed that her conduct was lawful under preexisting precedent. At issue 9 are the medical evaluation, bone scan, and physical examination conducted on July 9, 2020. 10 Clearly established law required Ms. Samuels to: (1) notify the parents of a medical 11 examination of their children, (2) obtain parental consent or a court order in advance of the 12 medical examination, and (3) permit the parent to be present at the examination or to be in 13 a waiting room or other nearby area if there is a valid reason for excluding them while all 14 or a part of the medical procedure is being conducted. See Wallis, 202 F.3d at 1142; Mann, 15 907 F.3d at 1162. 16 The FAC demonstrates she did none of these things. Plaintiffs were not notified of 17 any of these exams and were not permitted to be in the exam room with C.H.—despite 18 there being no valid reason or emergency requiring immediate medical attention and 19 despite clear instructions from the juvenile court that Plaintiffs were to be present at 20 medical appointments for the minor. Cf. Mann, 907 F.3d at 1163 (“In an emergency 21 medical situation, the County may proceed with medically necessary procedures without 22 parental notice or consent to protect the child’s health.”). The FAC also contains allegations 23 indicating the exams were not medically necessary, but rather, purely investigatory. 24 Parental notice and consent are “even more warranted” when the examinations are not 25 purely for health reasons. Mann, 907 F.3d at 116. 26 Defendants argue that Plaintiffs gave consent because they signed a “Consent for 27 Examination and Treatment” form for C.H. when he was removed from his parents’ care. 28 The FAC, however, contains allegations that Ms. Romero coerced Ms. Hipschman into 1 signing the form. Specifically, the FAC details that Ms. Romero told Plaintiffs, in a 2 threatening manner, that they had no choice but to sign the form, and that if they did not, 3 she would tell the judge they were being uncooperative, which would make the situation 4 worse for them. “[T]he Fourth and Fourteenth Amendments require that a consent not be 5 coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth v. 6 Bustamonte, 412 U.S. 218, 228 (1973). 7 Because a reasonable social worker would have understood that her failure to notify 8 Plaintiffs of C.H.’s exams, failure to obtain valid consent or judicial authorization for the 9 exams, and failure to permit Plaintiffs in the exam room when no valid reason or exigency 10 existed, was in violation of clearly established law, Ms. Samuels is not entitled to qualified 11 immunity. Accordingly, the Court DENIES Defendants’ motion to dismiss on this basis. 12 B. Judicial Deception 13 Next, Defendants argue that Plaintiffs fail to state a claim for judicial deception 14 against Ms. Romero, Ms. Samuels, and Ms. Sheheee. Specifically, Defendants argue that 15 Plaintiffs make only conclusory claims of misrepresentations made to the juvenile court 16 and their judicial deception claim is barred by the Rooker-Feldman doctrine. The Court 17 disagrees. 18 To state a claim for judicial deception, a plaintiff must allege: “(1) a 19 misrepresentation or omission (2) made deliberately or with a reckless disregard for the 20 truth, that was (3) material to the judicial decision.” Benavidez, 993 F.3d at 1147. First, the 21 Court finds the FAC contains particularized allegations of misrepresentations and omission 22 in the information submitted to the juvenile court. As Plaintiffs point out in their opposition 23 brief, they have alleged several detailed examples of false information included in the 24 Detention Report on which the juvenile court relied in making her decision. 25 Plaintiffs allege that Ms. Romero created a false and misleading record of her 26 investigation, which “set in motion a series of events that would, predictably, be used by 27 others to construct a false narrative which, on its face, was unreasonably and unjustifiably 28 prejudicial to [Plaintiffs].” (Doc. No. 24 at 30.) Specifically, Ms. Romero falsely reported 1 the substance of her interviews with Plaintiffs and other witnesses in a way that undermined 2 Plaintiffs’ credibility and knowledge of the injury’s cause. (Id. at 28–30.) 3 Plaintiffs also allege that the Detention Report Ms. Samuels and Ms. Shehee 4 submitted to the juvenile court included false statements, including that C.H.’s injury was 5 severe even though they knew, according to C.H.’s treating physicians that it was not 6 concerning and would heal on its own. (Id. at 31.) Dr. Vega also made it clear to Ms. 7 Samuels that she did not have complete information at the time she wrote her consultation 8 report and had not interviewed Plaintiffs to learn their perspective on what may have 9 caused the injury. (Id. at 30–31.) And when Ms. Samuels asked Dr. Vega whether 10 Plaintiffs’ explanations were plausible, she informed her that they were. (Id. at 31.) Yet, 11 Ms. Samuels omitted this information from the Detention Report. (Id. at 31–32.) Plaintiffs 12 further assert that Ms. Shehee worked with Ms. Samuels to draft the Detention Report, and 13 in doing so, refrained from including known exculpatory information, and instead made up 14 a false narrative based solely on the initial hospital referral and Ms. Romero’s false and 15 incomplete disclosures in her case notes. (Id. at 34.) 16 Second, taking the FAC as true and construing its allegations in the light most 17 favorable to Plaintiffs, these allegations support a plausible inference that the social 18 workers submitted the information deliberately or with at least reckless disregard for the 19 truth. Plaintiffs allege that despite knowing there was other evidence that the injury was 20 not severe and could have been accidental and consistent with Plaintiffs’ explanations, the 21 social workers omitted the information from their reports. Third, Plaintiffs have adequately 22 pled that the misrepresentations and omissions were material to the juvenile court’s 23 decision. Plaintiffs allege, and it is reasonable to infer from the facts, that the juvenile court 24 relied upon the misrepresented nature of the injury and lack of plausible explanation in her 25 decision to continue C.H.’s detention from his parents. 26 Considering the specificity with which Plaintiffs allege the various false and 27 misleading statements and omissions made by the social workers, the Court finds they 28 satisfy Rule 9(b)’s heightened standard for fraud. Based on the foregoing, the Court finds 1 Plaintiffs have sufficiently pled a judicial deception claim against Ms. Romero, Ms. 2 Samuels, and Ms. Shehee. 3 Moreover, Defendants’ argument that the Rooker-Feldman doctrine bars Plaintiffs’ 4 judicial deception claim is without merit. “If a plaintiff asserts as a legal wrong an allegedly 5 erroneous decision by a state court, Rooker-Feldman bars subject matter jurisdiction in 6 federal district court. If a plaintiff asserts as a legal wrong an allegedly illegal act or 7 omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” Benavidez, 993 8 F.3d at 1142 (internal alterations and citation omitted). Plaintiffs make clear they are not 9 alleging legal error by a state court, but rather, an illegal act or omission by an adverse 10 party. More specifically, they allege misrepresentations and omission by social workers 11 that resulted in violations of their constitutional rights. They are not seeking an appeal of 12 the juvenile court order. The Rooker-Feldman doctrine therefore does not preclude 13 Plaintiffs’ judicial deception claim. See id.; Kougasian v. TMSL, Inc., 359 F.3d 1136, 1141 14 (9th Cir. 2004) (Rooker-Feldman “does not bar subject matter jurisdiction when a federal 15 plaintiff alleges a cause of action for extrinsic fraud on a state court.”). 16 For the foregoing reasons, the Court finds Plaintiffs have adequately pled a judicial 17 deception claim and the Rooker-Feldman bar does not apply. Accordingly, the Court 18 DENIES Defendants’ motion to dismiss on this basis. 19 C. Malicious Prosecution 20 In response to Defendants’ motion to dismiss their malicious prosecution claim, 21 Plaintiffs acknowledge this is a civil proceeding and that controlling precedent holds that 22 malicious prosecution “is a concept applicable only in criminal proceedings.” Paskaly v. 23 Seale, 506 F.2d 1209, 1212 (9th Cir. 1974). As Plaintiffs have abandoned this claim, the 24 Court GRANTS Defendants’ motion to dismiss on this basis.3 25 26 27 3 To the extent Plaintiffs wish to amend their FAC to add a retaliation claim as suggested in their opposition brief, they must file a motion to amend the FAC in accordance with the 28 1 D. Punitive Damages 2 Defendants argue that Plaintiffs’ request for punitive damages should be dismissed 3 because they have not pled facts sufficient for punitive damages. The Court disagrees. 4 Punitive damages may be awarded in a § 1983 action “when the defendant’s conduct is 5 shown to be motivated by evil motive or intent, or when it involves reckless or callous 6 indifference to the federally protected rights of others.” Dang v. Cross, 422 F.3d 800, 807 7 (9th Cir. 2005) (citation omitted). The FAC contains factual allegations from which it could 8 be reasonably inferred that the social workers acted with at least “reckless or callous 9 indifference” to Plaintiffs’ federally protected rights. Id. For example, the FAC specifies 10 that the social workers made several threatening, accusatory, and condescending remarks 11 towards Plaintiffs and omitted important facts from their reports to undermine Plaintiffs’ 12 credibility. These allegations give rise to inferences sufficient to support a claim for 13 punitive damages. Accordingly, the Court DENIES Defendants’ motion to dismiss 14 Plaintiffs’ request for punitive damages. 15 E. Municipal Liability 16 Finally, Defendants move to dismiss Plaintiffs’ claim for municipal liability against 17 the County. To state a § 1983 claim against a municipality, a plaintiff must allege “(1) that 18 he possessed a constitutional right of which he was deprived; (2) that the municipality had 19 a policy; (3) that this policy ‘amounts to deliberate indifference’ to the plaintiff’s 20 constitutional right; and (4) that the policy is the ‘moving force behind the constitutional 21 violation.’” Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting 22 City of Canton v. Harris, 489 U.S. 378, 389–91 (1989)). 23 Defendants contend that Plaintiffs fail to identify any formal policy or longstanding 24 custom to support municipal liability against the County. The Court disagrees. Plaintiffs 25 allege that the County had several customs or practices that caused the violation of their 26 rights, including: (1) “removing children from their parents’ custody without consent or a 27 court order, in the absence of exigent circumstances (i.e., imminent danger of serious 28 bodily injury)” and “without first performing a reasonable investigation”; (2) “subjecting 1 children to unwarranted, non-consensual forensic medical examinations and/or 2 investigatory medical assessments” and excluding parents from these exams; and (3) 3 “including false, inaccurate, exaggerated, misleading, and/or untrue factual statements in 4 the documents and/or reports filed with the juvenile court” and “suppressing and/or 5 omitting known exculpatory evidence from documents and/or reports filed with the 6 juvenile court.” (Doc. No. 24 at 65–66, 72–75, 81–82.) 7 In support of their identified customs and practices, Plaintiffs’ FAC points not only 8 to the underlying factual allegations of their case, but to those in other cases against the 9 County alleging similar facts and violations over the years. (Id. at 66, 67–69, 75–77, 82– 10 84.) Plaintiffs additionally allege that the County did not investigate or discipline the 11 allegedly offending social workers in this case or in the other cases cited in the FAC. (Id. 12 at 69–70, 77–78, 84–85.) That the cited cases ultimately settled does not change the 13 reasonable inferences drawn therefrom. The Court finds the FAC contains sufficient factual 14 matter to give rise to a reasonable inference of a longstanding custom that causes 15 constitutional violations, and thus, plausibly state a claim for relief against the County. See 16 D.C. by & through Cabelka v. Cnty. of San Diego, 445 F. Supp. 3d 869, 892 (S.D. Cal. 17 2020) (“A policy or custom may be inferred from ‘evidence of repeated constitutional 18 violations for which the errant municipal officers were not discharged or reprimanded.’”) 19 (quoting Nadell v. Las Vegas Metro. Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001)). “It 20 is a rare plaintiff who will have access to the precise contours of a policy or custom prior 21 to having engaged in discovery, and requiring a plaintiff to plead its existence in detail is 22 likely to be no more than an exercise in educated guesswork.” Estate of Osuna v. Cty. of 23 Stanislaus, 392 F. Supp. 3d 1162, 1174 (E.D. Cal. 2019). 24 The Court further finds that Plaintiffs have pled enough to state a failure to train 25 claim against the County. A municipality may be liable under § 1983 “where the failure to 26 train amounts to deliberate indifference to the rights of persons with whom the employee 27 comes into contact.” Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). 28 A plaintiff asserting a Monell claim based on a failure to train must identify how the 1 municipality’s training was inadequate and that the inadequate training represents 2 municipal policy. See id. 3 Here, Plaintiff alleges that the “County does not adequately train its ‘weekend’ social 4 workers to be truthful, honest, accurate, and to not engage in deception in the presentation 5 of evidence, and a parent and child’s Constitutional Rights” and “does not provide training 6 on all policy updates, and does not expect its social workers to know every policy or 7 procedure.” (Doc. No. 24 at 89.) The FAC states that Mr. Padilla—Ms. Romero’s 8 supervisor and a program manager for HHSA—admitted “that there had been no basis to 9 remove C.H. from their care without a warrant or court order that day, and that ‘weekend 10 staff had not been adequately trained on the protocols.’” (Id. at 13 n.4.) Plaintiffs also allege 11 that another program manager for the County, who is also Ms. Samuels’ and Ms. Shehee’s 12 supervisor, also admitted that “HHSA training for its weekend staff is ‘not adequate and 13 needs to be better.’” (Id. at 54.) The supervisors’ concessions indicate that the County has 14 not sufficiently trained a whole group of social workers—not just the social workers at 15 issue in this case. The FAC also indicates that despite the supervisors’ awareness of the 16 inadequate training and the Defendant social workers’ errors, none of them were 17 disciplined. (Id.) 18 Thus, the Court finds Plaintiffs’ allegations raise a reasonable inference that the 19 County was deliberately indifferent to the rights of the persons with whom the untrained 20 employees are likely to come into contact with, and that the injury would have been avoided 21 if the county properly trained its employees. See Long, 442 F.3d at 1186 (A municipality 22 may be liable under § 1983 “where the failure to train amounts to deliberate indifference 23 to the rights of persons with whom the employee comes into contact.”); Rodriguez v. Cty. 24 of L.A., 891 F.3d 776, 803 (9th Cir. 2018) (A plaintiff may prove deliberate indifference 25 through “evidence of a ‘failure to investigate and discipline employees in the face of 26 widespread constitutional violations.’”). 27 Based on the foregoing, the Court DENIES Defendants’ motion to dismiss 28 Plaintiffs’ municipal liability claim. 1 IV. CONCLUSION 2 Accordingly, for the reasons stated herein, the Court GRANTS IN PART and 3 || DENIES IN PART Defendants’ motion to dismiss. (Doc. No. 32.) Plaintiffs’ malicious 4 || prosecution claim is DISMISSED WITHOUT LEAVE TO AMEND. All other claims 5 ||in the FAC remain. Defendants’ must file their Answer to the FAC no later than Friday, 6 || September 15, 2023. 7 IT IS SO ORDERED. 8 Dated: September 5, 2023
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