K. v. Sonoma County

• Court: District Court, N.D. California
• Decided: September 27, 2024
• Docket: 3:22-cv-01202
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHELLE K., et al., Case No. 22-cv-01202-AMO

8 Plaintiffs, ORDER GRANTING IN PART 9 v. AND DENYING IN PART MOTIONS TO DISMISS 10 COUNTY OF SONOMA, et al., Re: Dkt. Nos. 220, 222 Defendants. 11

12 13 Before this Court are two motions to dismiss brought by (1) Defendant County of Sonoma 14 and County Social Workers; and (2) Defendants State of California and Amy Lafferty.1 Having 15 read the parties’ papers and carefully considered their arguments therein and those made at the 16 hearing, together with the relevant legal authority, and good cause appearing, the Court hereby 17 GRANTS in part and DENIES in part the motions, for the following reasons. 18 I. FACTUAL BACKGROUND2 19 In September of 2006, the County of Sonoma (“County”) removed Plaintiffs Michelle K., 20 P.K., and Kristin K. from the custody of their biological parents. Third Amended Complaint 21 (“TAC”) (ECF 209) ¶ 32. Kristin K. was placed in the custody of her aunt, where she remained 22 1 The instant motions (ECF 220 and 222) are substantively identical to motions to dismiss 23 previously filed (ECF 136 and 140) challenging the Second Amended Complaint (ECF 88). The Court held a hearing on those motions on January 25, 2024. While the Court had those motions 24 under submission, the parties entered into a stipulation to allow Plaintiffs to amend their complaint. ECF 214. The operative complaint, the Third Amended Complaint, was filed on May 25 16, 2024. ECF 209. The renewed motions to dismiss, which are the subject of this Order, followed on June 14, 2024 (ECF 220) and June 18, 2024 (ECF 222). 26

2 These facts are taken from the Plaintiffs’ Third Amended Complaint, as the Court must accept 27 Plaintiffs’ allegations as true and construe the pleadings in the light most favorable to them. See 1 while she was a minor. TAC ¶ 32. The County placed Michelle K. (age 3), P.K. (age 2), and their 2 sister Kaya K. (age 4) with Defendants Jose and Gina Centeno on October 20, 2006, despite a 3 January 2006 report of suspected child abuse involving two other children the Centenos fostered. 4 TAC ¶ 34. Between October 20, 2006, and September 24, 2008, the County of Sonoma (the 5 “County”), the State of California (the “State”), and the foster care agency TLC Child and Family 6 Services (“TLC”) received frequent reports from the children’s biological extended family and 7 others that the children were being physically and emotionally abused, including that they were 8 seen with bruising on their arms and legs, and that they did not want to leave family visits. 9 TAC ¶¶ 35-36. 10 On September 24, 2008, the Centenos legally adopted Michelle K., P.K., and Kaya. 11 TAC ¶ 39. Prior to the adoption, the County, State, and TLC failed to conduct full background 12 checks on the Centenos, properly inspect their home, assess the well-being of the Centenos’ three 13 biological children, speak with Kaya, Michelle K., and P.K. outside of the presence of the 14 Centenos about the care they were receiving, or investigate allegations of abuse made by the 15 children’s maternal aunt and Kristin K. TAC ¶ 40. In June of 2009 and March of 2010, the 16 County placed another foster child, Pablo, and his infant sister, Maci, with the Centenos, without 17 evaluating the safety of the children already living there. TAC ¶¶ 41-44. 18 In September of 2010, the County received multiple reports from teachers that Mr. 19 Centeno physically abused the children, and that Kaya, Michelle K., and P.K. were coming to 20 school with unexplained bruises. TAC ¶¶ 46, 49. The teachers’ reports, and interviews conducted 21 with Michelle K., P.K., and Kaya by County Social Worker Jacqueline Johnson, revealed that the 22 Centenos hit the children with their fists, belts, wooden spoons, and hairbrushes; that the Centenos 23 called them names; that the kids were visibly upset about being picked up and were terrified of 24 their adoptive parents; that P.K. came to school with a mark on his neck; that Ms. Centeno hit 25 Michelle K. in the face, knocking her tooth out; that Mr. Centeno kicked Michelle K.; and that the 26 children were punished by being forced to stand holding something heavy over their heads in the 27 shower or stand in the corner with their arms up. TAC ¶¶ 48-50. On September 17, 2010, 1 three children were liars. TAC ¶ 51. They admitted to taping gloves on Kaya’s hands at night, to 2 making the children have time outs in the shower, and to putting alarms on the beds to alert when 3 the children moved. TAC ¶¶ 51, 82. 4 Johnson wrote a report noting her deep concerns about the children’s welfare, including 5 that the children were in “dire need of intensive therapy immediately.” TAC ¶¶ 52-53. Johnson 6 noted that the children’s statements were consistent and that she believed the parents to be 7 overwhelmed. TAC ¶¶ 52-53. Johnson discussed her report with her fellow County Social 8 Workers Monisha Sashital and Bob Harper. TAC ¶ 53. This information was provided to TLC, 9 the State, and Amy Lafferty, the adoption services representative in charge of the adoption of 10 Pablo and Maci. TAC ¶ 54. Johnson filed an Investigation Narrative after the investigation, 11 substantiating allegations of emotional abuse against the Centenos, finding that the interviews 12 indicated a pattern of harsh physical punishment and verbal abuse, and that she believed the 13 Centenos were overwhelmed and should not care for Pablo and Maci. TAC ¶ 55. 14 On September 24, 2010, Johnson again met with Ms. Centeno but did not meet with Mr. 15 Centeno. TAC ¶ 56. Johnson “expressed her belief” that the Centenos were overwhelmed and 16 that she was concerned about their frustration level, volatility, and possible burnout. TAC ¶¶ 56- 17 57. Johnson consulted with fellow County Social Workers Linda Morrissey, Leslie Winters, and 18 Sashital, and expressed concerns that Michelle K., P.K., and Kaya were “high risk” children, and 19 that this risk would be increased with the adoption of the two younger children. TAC ¶ 57. A few 20 days later, Defendants Lafferty and Johnson learned that Ms. Centeno removed her children from 21 school and after-school programs. TAC ¶ 58. 3 Nobody from any agency took any further action 22 to check on the welfare of Kaya, Michelle K., and P.K. TAC ¶ 59. The Centenos finalized their 23 adoption of Pablo and Maci on August 19, 2011. TAC ¶ 60. 24 Between August of 2011 and late 2018, the Centenos shackled Kaya, Michelle K., and 25 P.K. to their beds with alarms to prevent them from leaving and kept them in cages. TAC ¶ 62. 26 Kaya has not been seen since 2012. TAC ¶ 62. In late 2018 and early 2019, there were multiple 27 1 reports to the County related to suspected child abuse of Maci and Pablo as well as the children’s 2 potential danger to themselves and others. TAC ¶¶ 63-68. On October 31, 2018, an unidentified 3 individual submitted a Suspected Child Abuse Report (“SCAR”) to the County and County Social 4 Worker De La Cruz, which listed the history of the Centenos’ emotional and physical abuse 5 toward Michelle K., P.K., and Kaya. TAC ¶¶ 63-64. An emergency report was shared with the 6 County on February 7, 2019 regarding concerning behaviors by Pablo and Maci. TAC ¶ 65. 7 County Social Workers interviewed Ms. Centeno but failed to inquire about the whereabouts of 8 Kaya, Michelle K., or P.K. and failed to tour the home, despite Ms. Centeno stating that she was 9 doing everything she could to take care of her “two children” when she had five adopted children. 10 TAC ¶ 66. County Social Workers found insufficient evidence of abuse or safety concerns, took 11 no further action, and closed the investigations. TAC ¶¶ 64, 68. Around the same time, the 12 Centenos traveled to Guanajuato, Mexico, and left Michelle K. and P.K. with a distant relative of 13 Mr. Centeno. TAC ¶ 70. 14 In late March of 2019, the County received a report of multiple bruises on Maci’s arm. 15 TAC ¶ 71. A County report listed the names of all the children who were supposed to be in the 16 care of the Centenos, but County Social Workers Andrea Kroeze and D. Romero “evaluated out”4 17 the report, stating that there were no concerns for Maci in the home. TAC ¶ 71. Nobody 18 questioned Maci or Ms. Centeno or inquired about the other children in the home. TAC ¶ 71. An 19 additional report of abuse on July 23, 2019 was handled similarly by County Social Worker 20 Deborah Gilday. TAC ¶ 72. In October of 2019 and February of 2020, police officers responded 21 to the Centeno house on multiple occasions due to Maci’s threats to kill herself and Pablo 22 throwing items. TAC ¶¶ 73-75. In a January 2020 emergency report, Maci disclosed that Mr. 23 Centeno hit her, but the County “evaluated out” the report. TAC ¶ 74. 24 On June 30, 2020, an American citizen discovered Michelle K. and P.K. in Mexico. 25 TAC ¶ 76. The children were found with a woman who reported that they had been left with her. 26

27 4 The TAC does not define this term. The Court draws the reasonable inference that it means the 1 TAC ¶ 76. The woman recounted to the American citizen that Michelle K. disclosed that she had 2 been “kidnapped for 8 years” before being brought to Mexico, that her father had raped her while 3 holding her hostage, and that Michelle K. and P.K. had been sexually and physically abused for 4 years. TAC ¶ 76. Mexican social services interviewed and examined the children, and a sexual 5 abuse examination corroborated this narrative. TAC ¶ 77. 6 The Centenos were arrested on August 19, 2020, and have been charged with felony 7 torture and other crimes, including kidnapping and assault. TAC ¶¶ 85-87. Mr. Centeno was 8 charged with nine additional felony crimes for his suspected sexual abuse. TAC ¶¶ 85-86. Ms. 9 Centeno is now deceased. TAC ¶ 23. 10 II. PROCEDURAL BACKGROUND 11 On February 25, 2022, Plaintiffs Michelle K. and P.K., through their guardian ad litem, 12 and Plaintiff Kristin K. (collectively, “Plaintiffs”) filed suit. Plaintiffs filed the Third Amended 13 Complaint (“TAC”), the operative complaint, on May 16, 2024. ECF 209. Plaintiffs allege 19 14 causes of action related to the abuse they suffered at the hands of the Centenos.5 They bring 15 claims against Defendants Jose and Gina Centeno; the County of Sonoma; County Social Workers 16 Josephine McCay, Frederick Jones, Monisha Sashital, Linda Morrisey, Leslie Winters, Janet 17 Taylor, De La Cruz, Andrea Kroeze, Deborah Gilday, D. Romero, the Estate of Jacqueline 18 Johnson, and the Estate of Bob Harper;6 the State of California; Amy Lafferty; TLC Child & 19 Family Services;7 the City of Rohnert Park; Officer Gonzales; and Officer Groat.8 20 On June 14, 2024, Amy Lafferty and the State of California moved to dismiss the TAC. 21 5 On January 18, 2024, Plaintiffs filed an ex parte motion for an extension of time to serve 22 deceased defendants. ECF 170. At the January 25, 2024 hearing, the Court denied the motion to substitute the deceased defendants, social workers Jacqueline Johnson and Bob Harper, who had 23 never been served. ECF 178. Plaintiffs have since amended the complaint, naming the estates of the deceased defendants. ECF 209. The Court therefore terminates as moot the motion for 24 extension of time to serve the deceased defendants.

25 6 The TAC does not include a first name for De La Cruz or D. Romero.

26 7 TLC answered the TAC on June 28, 2024. ECF 232.

27 8 The City of Rohnert Park, Officer Gonzales, and Officer Groat have since been dismissed from 1 ECF 220. On June 18, 2024, the County of Sonoma and County Social Workers also moved to 2 dismiss the SAC. ECF 222. 3 III. LEGAL STANDARD 4 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be 5 dismissed for failure to state a claim for which relief may be granted. Fed. R. Civ. P. 12(b)(6). 6 Rule 12(b)(6) requires dismissal when a complaint lacks either a “cognizable legal theory” or 7 “sufficient facts alleged” under such a theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 8 1208 (9th Cir. 2019) (citation omitted). Whether a complaint contains sufficient factual 9 allegations depends on whether it pleads enough facts to “state a claim to relief that is plausible on 10 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 11 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows 12 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 13 Id. at 678. 14 When evaluating a motion to dismiss, the court “accept[s] factual allegations in the 15 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving 16 party.” Manzarek, 519 F.3d at 1031. However, “allegations in a complaint . . . may not simply 17 recite the elements of a cause of action [and] must contain sufficient allegations of underlying 18 facts to give fair notice and to enable the opposing party to defend itself effectively.” Levitt v. 19 Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (citations omitted). The Court may dismiss a 20 claim “where there is either a lack of a cognizable legal theory or the absence of sufficient facts 21 alleged under a cognizable legal claim.” Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 22 2011). 23 IV. COUNTY OF SONOMA AND SOCIAL WORKERS’ MOTION TO DISMISS 24 Defendants County of Sonoma and the County Social Workers (collectively, “County 25 Defendants”) move to dismiss counts one through four, six through ten, 13, 18, and 19. ECF 222 26 (“County Mot.”). County Defendants argue that the social workers are immune from Section 27 1983 liability; Plaintiffs fail to allege deliberate indifference; Plaintiffs fail to allege a County 1 Plaintiffs fail to allege IIED or NIED. The Court addresses each argument in the order presented. 2 A. Section 1983 Claims (Counts 1-3 by Michelle K. and P.K. against County Social 3 Workers) 4 Michelle K. and P.K. bring three claims against the County Social Workers under the 5 Fourteenth Amendment for failure to adequately respond to or investigate reports of abuse and for 6 providing false information to a court. “The Fourteenth Amendment substantive due process 7 clause protects a foster child’s liberty interest in social worker supervision and protection from 8 harm inflicted by a foster parent.” Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th 9 Cir. 2010). Defendants argue that they have absolute immunity, qualified immunity, and that 10 Plaintiffs fail to allege deliberate indifference. The Court takes up the three arguments in turn. 11 1. Absolute Immunity 12 “Defendants in § 1983 suits are generally entitled to only immunities that existed at 13 common law.” Rieman v. Vazquez, 96 F.4th 1085, 1090 (9th Cir. 2024). “[S]ocial workers are 14 not afforded absolute immunity for their investigatory conduct, discretionary decisions or 15 recommendations.” Cox v. Dep’t of Soc. & Health Servs., 913 F.3d 831, 837 (9th Cir. 2019) 16 (quoting Tamas, 630 F.3d at 842). Nor are they entitled to absolute immunity from claims relating 17 to “investigative or administrative” activity. Hardwick v. Cnty. of Orange, 844 F.3d 1112, 1115 18 (9th Cir. 2017) (citation omitted). Courts “grant[] state actors absolute immunity only for those 19 functions that [are] critical to the judicial process itself,” such as “initiating a prosecution.” Miller 20 v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (en banc) (quoting Imbler v. Pachtman, 424 U.S. 21 409, 431 (1976)). Social workers may enjoy absolute immunity related to “discretionary, quasi- 22 prosecutorial decisions to institute court dependency proceedings to take custody away from 23 parents.” Rieman, 96 F.4th at 1090 (citation omitted). Such immunity is only available if the 24 social worker’s “activity or function” is “part and parcel of the presenting state’s case as a generic 25 advocate.” Hardwick, 844 F.3d at 1115. 26 Plaintiffs allege that County Social Workers failed to adequately investigate and respond to 27 reports of abuse. County Social Workers do not explain how the failure to adequately investigate 1 12. Indeed, social workers are not entitled to absolute immunity for investigations or 2 recommendations. See Cox, 913 F.3d at 837. Instead, County Social Workers argue that, pursuant 3 to California case law and statutes, absolute immunity protects the investigation of claims of child 4 abuse. County Mot. at 10-11 (citing Cal. Gov’t Code §§ 820.1, 820.2 and Alicia T. v. County of 5 Los Angeles, 222 Cal. App. 3d 869 (1990)). However, state statutory immunities do not apply to 6 claims asserted under Section 1983. Martinez v. State of Cal., 444 U.S. 277, 284 n.8 (1980) 7 (“Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or 8 § 1985(3) cannot be immunized by state law.”); Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 9 2000) (“Immunity under § 1983 is governed by federal law; state law cannot provide immunity 10 from suit for federal civil rights violations.”). 11 Accordingly, County Social Workers are not entitled to absolute immunity in connection 12 with the first three claims. 13 2. Qualified Immunity 14 County Social Workers also argue that they are entitled to qualified immunity for claims 15 arising from interview decisions, placement decisions, and adoption decisions, again relying on 16 California statutory immunity under California Government Code Section 820.2. County Mot. at 17 11-12. As explained above, “[i]mmunity under § 1983 is governed by federal law; state law 18 cannot provide immunity from suit for federal civil rights violations.” Wallis, 202 F.3d at 1144 19 (citing cases). Accordingly, Government Code § 820.2 cannot protect County Social Workers 20 from Section 1983 liability. See id. 21 County Social Workers, in their bare reliance on state law immunity, fail to establish that 22 they are entitled to qualified immunity under federal law. To the extent County Social Workers 23 rely on federal law, they also fail to show at this stage they are entitled to qualified immunity. 24 Indeed, the Ninth Circuit disfavors determining qualified immunity claims at the motion to 25 dismiss stage. See Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018) (“[d]etermining claims of 26 qualified immunity at the motion-to-dismiss stage raises special problems for legal decision 27 making”) (citing Wong v. United States, 373 F.3d 952, 956-57 (9th Cir. 2004)). Accordingly, the 1 entitled to qualified immunity at this stage. Of course, “[o]nce an evidentiary record has been 2 developed through discovery, defendants will be free to move for summary judgment based on 3 qualified immunity,” if appropriate. Keates, 883 F.3d at 1240. 4 3. Deliberate Indifference 5 County Defendants also move to dismiss Plaintiffs’ Section 1983 due process claims 6 because Plaintiffs have not adequately pled deliberate indifference. County Mot. at 13-14. “To 7 violate due process, state officials must act with such deliberate indifference to the liberty interest 8 that their actions ‘shock the conscience.’ Conduct that ‘shocks the conscience’ is deliberate 9 indifference to a known . . . [or obvious] danger.” Cox, 913 F.3d at 837 (quoting Tamas, 630 F.3d 10 at 844). Deliberate indifference requires “a showing of an objectively substantial risk of harm and 11 a showing that the officials were subjectively aware of facts from which an inference could be 12 drawn that such a risk existed and that either the official actually drew that inference or that a 13 reasonable official would have been compelled to draw that inference.” Id. (internal quotation 14 marks and citation omitted). 15 County Defendants argue that Plaintiffs only allege what County Social Workers should or 16 could have known or done, not that County Social Workers were subjectively aware of facts from 17 which an inference of a substantial risk of serious harm could be drawn. County Mot. at 14. 18 County Defendants are incorrect. Specifically, school staff made four reports to the County in a 19 span of a single week. TAC ¶ 49. Teachers reported being deeply concerned about Michelle K., 20 P.K., and Kaya, including that they were coming to school with unexplained bruises. TAC ¶¶ 46, 21 48-49. One teacher reported that P.K. told her that the Centenos spanked and hit him, Kaya, and 22 Michelle on their bare bottoms with belts and wooden spoons. TAC ¶¶ 46, 48-50. A reporting 23 party told the County that P.K. and Kaya told her that they were afraid of their parents, were called 24 names, told that they would “get their asses kicked,” and were visibly upset daily about being 25 picked up from school. TAC ¶ 48. County Social Workers learned that P.K. came to school with 26 a red mark around his neck, and that Michelle K. reported being spanked with a black belt. 27 TAC ¶ 49. County Social Worker Jacqueline Johnson interviewed P.K., Michelle K., and Kaya, 1 and belts, made them stand in the corner with their hands up, and forced them to stay in bed for 2 weeks. TAC ¶¶ 46, 50. The Centenos admitted to County Social Worker Johnson that they taped 3 gloves on Kaya’s hands at night, gave time outs in the shower, and put alarms on the children’s 4 beds to see if they moved. TAC ¶ 51. Johnson also discussed the investigation with County 5 Social Workers Sashital and Harper, and advised that Michelle, P.K., and Kaya’s statements were 6 consistent, and that she believed their allegations were valid and that the family was in need of 7 strong support and the children in “dire need of intensive therapy immediately.” TAC ¶ 53. 8 Plaintiffs thus sufficiently allege that County Social Workers disregarded facts that would 9 “compel an inference that there existed an objectively substantial risk that [the Centenos] would 10 physically harm [the children].” See Cox, 913 F.3d at 838. Plaintiffs also specify which social 11 workers were assigned to investigate the reports, which social workers were consulted, and the 12 evidence they learned about the abuse occurring at the time. See TAC ¶¶ 34-56. They allege that 13 Gina Centeno removed her children from school shortly after the reports of abuse, and that after 14 this, County Social Workers failed to check on the welfare of the children. TAC ¶¶ 58-59. 15 Moreover, Plaintiffs allege that County Social Workers reported on multiple occasions that they 16 believed the Centenos were overwhelmed, TAC ¶¶ 52-53, 55, 65, and Johnson wrote a report 17 following her meeting with the Centenos and Plaintiffs that the interviews “indicated a pattern of 18 harsh physical punishment and verbal abuse.” TAC ¶ 55. The County did not take any further 19 action. TAC ¶ 59. 20 These allegations are more than “mere hunches, gut feelings, and speculations” about what 21 the Centenos “might do.” See Cox, 913 F.3d at 838. Indeed, they show that the County learned 22 about allegations of abuse but failed to properly investigate or protect the children. Cf. Momox- 23 Caselis v. Donohue, 987 F.3d 835, 847 (9th Cir. 2021) (finding insufficient allegations to support 24 a due process claim where there was “no evidence that the Juarez-Paez family was consistently 25 overwhelmed by their foster care duties”). It is hard to imagine what additional factual allegations 26 the County seeks at this stage. Accordingly, the Court DENIES the motion to dismiss the first 27 and second causes of action. 1 Plaintiffs’ allegations are entirely conclusory. Plaintiffs merely allege that Defendants “provid[ed] 2 knowingly wrongful and false information to the Court,” TAC ¶ 106, without identifying what the 3 information was, in which court Defendants presented false information, or how the information 4 was known to be wrong by the Defendants. Such cursory allegations are insufficient to plead 5 deliberate indifference. The Court therefore GRANTS the motion to dismiss the third cause of 6 action with leave to amend. 7 B. Monell Claim (by Michelle K. and P.K. against County) 8 A government entity may be liable under Title 42 U.S.C. § 1983 where a “policy, practice, 9 or custom” was the “moving force” behind a constitutional violation. Dougherty v. City of 10 Covina, 654 F.3d 892, 900 (9th Cir. 2011); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 11 (1978). To establish government liability for an improper custom, there must be “practices of 12 sufficient duration, frequency and consistency” rather than “isolated or sporadic incidents.” 13 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); see Navarro v. Block, 72 F.3d 712, 714 (9th 14 Cir. 1995) (“[p]roof of random acts or isolated events is insufficient to establish custom”). “The 15 line between ‘isolated or sporadic incidents’ and ‘persistent widespread conduct’ is not clearly 16 delineated.” Lemus v. Cty. of Merced, 2016 WL 2930523, at *4 (E.D. Cal. May 19, 2016), aff’d, 17 2017 WL 4772557 (9th Cir. 2017); see Nelson v. City of Los Angeles, 2015 WL 1931714, at *10- 18 11, 18 (C.D. Cal. Apr. 28, 2015) (denying motion to dismiss Monell claim where plaintiffs alleged 19 numerous instances of jail guards retaliating against them for reporting misconduct); compare 20 Meehan v. Los Angeles County, 856 F.2d 102, 107 (9th Cir. 1988) (two incidents not sufficient to 21 establish custom) and Davis v. Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989) (manner of one 22 arrest insufficient to establish policy) with Motley v. Smith, 2016 WL 3407658, at *9 (E.D. Cal. 23 June 20, 2016) (multiple incidents of police denying protection to abused women because of their 24 gender were sufficient to allege widespread custom). 25 Plaintiffs allege that the County had the following policies, practices, and customs:

26 1. “The policy of placing children with foster/adoptive parents without conducting a thorough 27 and complete investigation of the prospective foster/adoptive parents, their home, and the children living within that home.” 2. “The policy of placing multiple children with foster/adoptive parents without interviewing 1 and examining the children already placed with such parents.” 2 3. “The policy of conducting inadequate investigations of reports of abuse and neglect.t” 3 4. “The policy of deliberate indifference to children designated as ‘high-risk.’” 4 5. “The policy of limiting child abuse investigations to the subject of the report, and 5 deliberate indifference to the status of other children living in the home.” 6 6. Deliberate indifference toward training, supervision, and discipline. 7 8 TAC ¶ 110; see ECF 227 at 16-17. The County argues that an entity cannot simultaneously have 9 an internal policy not to investigate claims of abuse and be required to follow official guidelines 10 and rules mandating safe and responsible placement. County Mot. at 16-17. However, the County 11 does not cite any legal authority to support this argument and does not explain how the existence 12 of mandatory rules precludes the County from having the internal practices or customs alleged 13 here. The Court thus declines to find that these allegations are incongruous. 14 Plaintiffs have alleged at least five instances when the County limited child abuse 15 investigations to the subject of the report (fifth policy). See TAC ¶¶ 63-66, 71-72, 74. Plaintiffs 16 also allege that the County conducted inadequate investigations of reports of abuse and neglect 17 (the third policy) on multiple occasions. TAC ¶¶ 45-58. At this stage, these are sufficient to 18 allege a pattern or practice that caused Plaintiffs’ constitutional injury. See Motley, 2016 WL 19 3407658, at *9; Nelson, 2015 WL 1931714, at *10-11, 18. The Court therefore DENIES the 20 motion to dismiss the Monell claim against the County. 21 However, Plaintiffs have not offered factual allegations that the first, second, and fourth 22 policies occurred on more than one or two instances. See Meehan, 856 F.2d at 107; Davis, 869 23 F.2d at 1233. Similarly, Plaintiffs fail to allege how or in what way County Social Workers were 24 inadequately trained, supervised, or disciplined (sixth policy). If Plaintiffs seek to bring Monell 25 claims under these theories, they must allege additional facts. 26 C. State Law Claims 27 County Defendants move to dismiss the state law claims for breach of mandatory duty, 1 (“NIED”). The Court addresses the arguments in the order presented by the parties. 2 1. Breach of Mandatory Duties 3 County Defendants move to dismiss the breach of mandatory duty claims, arguing that 4 they are absolutely immune from liability and that Plaintiffs fail to state a claim. The Court first 5 addresses statutory immunity as it is a threshold question, before turning to the rest of County 6 Defendants’ arguments. 7 a. Statutory Immunity 8 County Defendants argue that they are immune from the breach of mandatory duty claims 9 because County Social Workers have statutory immunity under California Government Code 10 Section 820.2 and the County is immune pursuant to section 815.2. County Mot. at 10. 11 Defendants have failed to meet their burden to dismiss on these bases. 12 As to the first argument, section 820.2 immunizes a public employee from liability 13 “resulting from his act or omission where the act or omission was the result of the exercise of the 14 discretion vested in him, whether or not such discretion be abused.” Cal. Gov. Code § 820.2. 15 Immunity under section 820.2 attaches only after the public employee “prove[s] that . . . in 16 deciding to perform (or not perform) the act which led to [the] plaintiff’s injury, [the employee] 17 consciously exercised discretion in the sense of assuming certain risks in order to gain other policy 18 objectives.” Lopez v. S. Cal. Rapid Transit Dist., 40 Cal. 3d 780, 794 (1985) (citation omitted) 19 (emphasis in original). Indeed, “[t]he fact that an employee normally engages in ‘discretionary 20 activity’ is irrelevant if, in a given case, the employee did not render a considered decision.” Id. 21 (citation omitted). Government defendants thus “have the burden of establishing that they are 22 entitled to immunity for an actual policy decision made by an employee who ‘consciously 23 balanc[ed] risks and advantages.’ ” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 639 24 (9th Cir. 2012); see id. County Social Workers argue that they are immune from allegations that 25 they failed to respond to or investigate reports of abuse. County Mot. at 12-13, 18. However, 26 County Social Workers fail to allege that they made considered policy decisions and consciously 27 exercised discretion in their actions. Indeed, mandatory duties by their nature are “obligatory, 1 taken or not taken.” San Mateo Union High Sch. Dist. v. Cty. of San Mateo, 213 Cal. App. 4th 2 418, 428 (2013) (citation omitted). Accordingly, County Social Workers have not met the burden 3 of establishing discretionary immunity at this stage. 4 Defendants also contend that the County is not liable under Government Code § 815.2. 5 County Mot. at 10. Pursuant to section 815.2, a public entity is liable for injury “proximately 6 caused by an act or omission of an employee,” but is not liable where the employee has been 7 found to be immune. Cal. Gov’t Code § 815.2(a)-(b). The County argues that it is protected from 8 liability because the County Social Workers are immune. County Mot. at 10. However, the Court 9 rejected County Social Workers’ argument that they are entitled to statutory immunity under 10 section 820.2. Accordingly, the County is not entitled to immunity under section 815.2. See 11 Sanderlin v. City of San Jose, 2022 WL 913055, at *14 (N.D. Cal. Mar. 29, 2022) (rejecting a 12 city’s argument that it was entitled to immunity under section 815.2 where the court found that its 13 employees were not statutorily immune). 14 Accordingly, County Defendants’ motion to dismiss all state claim claims on the basis of 15 statutory immunity is DENIED. 16 The Court now takes up Defendants’ arguments about Plaintiffs’ failure to state a claim for 17 breach of mandatory duty. 18 b. Failure to State a Claim for Breach of Mandatory Duties 19 (against County and Social Workers) 20 California Government Code section 815.6 provides that a public entity is liable for injury 21 where the entity is “under a mandatory duty imposed by an enactment that is designed to protect 22 against the risk of a particular kind of injury . . . [and that injury is] proximately caused by its 23 failure to discharge the duty . . . [.] Cal. Gov’t Code § 815.6. Three discrete requirements “must 24 be met before governmental entity liability may be imposed under [California] Government Code 25 section 815.6: (1) an enactment must impose a mandatory duty; (2) the enactment must be meant 26 to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis 27 for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury 1 citations omitted). The first element requires that “the enactment at issue be obligatory, rather 2 than merely discretionary or permissive, in its directions to the public entity; it must require, rather 3 than merely authorize or permit, that a particular action be taken or not taken.” Id. (quoting 4 Haggis v. City of Los Angeles, 22 Cal. 4th 490, 498 (2000)); see also O’Toole v. Superior Court, 5 140 Cal. App. 4th 488, 510 (2006) (finding that a statute prohibiting certain conduct but not 6 setting forth guidelines or rules did not create a mandatory duty); Guzman v. County of Monterey, 7 46 Cal. 4th 887, 898 (2009) (recognizing that “[c]ourts have construed this first prong rather 8 strictly, finding a mandatory duty only if the enactment affirmatively imposes the duty and 9 provides implementing guidelines”) (internal citations omitted). Therefore, a provision of law 10 requiring an action without specific guidance on its implementation is not sufficient to create a 11 mandatory duty. See Haggis, 22 Cal. 4th at 498-99. 12 County Defendants first contend that Plaintiffs cannot assert mandatory duty claims 13 against individuals. County Mot. at 18. County Defendants cite no authority for this assertion. 14 Indeed, the California Supreme Court has explained that a public employee is “liable for injury 15 caused by his act or omission to the same extent as a private person” but is “not liable for an injury 16 resulting from his act or omission where the act or omission was the result of the exercise of 17 discretion vested in him . . . [.]” B.H. v. Cnty. of San Bernardino, 62 Cal. 4th 168, 179-180 (2015) 18 (quoting Cal. Gov’t Code §§ 820(a), 820.2). Accordingly, Plaintiffs may bring breach of 19 mandatory duty claims against the County Social Workers. 20 County Defendants also argue that the breach of mandatory duty claims fail because each 21 of the statutes cited do not establish mandatory duties but instead allow for the “discretionary 22 decision-making of social workers.” County Mot. at 19. The Court addresses each claim in turn. 23 i. Sixth Claim 24 Plaintiffs’ sixth cause of action alleges that County Defendants breached mandatory duties 25 under California Adoption Program Regulations 35177, 35181, and 35183, Child Welfare 26 Services Regulation 31-405, and Welfare & Institutions Code Section 16507.5. The Court 27 addresses whether Plaintiffs have alleged a claim for each statute. 1 California Adoption Regulations 35177 and 35183 require an adoption agency to conduct 2 face-to-face interviews with adoptive applicants and individuals residing in the adoptive 3 household. Section 35177 states that “[t]he agency shall assess each applicant as specified in 4 Sections 35181 or 35183.” Section 35181 specifies that “[t]he agency shall have at least 3 5 separate face-to-face contacts with each applicant for the purpose of intervening the [adoptive] 6 applicant for assessment” and that the contacts “shall include, at least, all of the following:”

7 (A) At least one interview with the applicant in the home. (B) A separate face-to-face interview with each applicant. 8 (C) A joint interview when there are two applicants. (D) A face-to-face interview with all other individuals residing in 9 the home. (E) Additional interviews as necessary. 10 11 Cal. Code Regs. § 35181(a). Section 35183 permits abbreviated assessments under certain 12 circumstances and states that “[t]he agency shall have at least one face-to-face contact with each 13 applicant for the purpose of interviewing the applicant for the assessment.” Cal. Code Regs. § 14 35183(b). 15 Plaintiffs allege that County Defendants violated these regulations because they failed to 16 conduct the required interviews. TAC ¶ 127. County Defendants argue that Section 35181 does 17 not specify how heavily the agency must weigh the interviews in the adoption decision and 18 Section 35183 merely provides for situations in which an abbreviated assessment may be 19 completed. County Mot. at 19-20. While Sections 35181 and 35183 provide for discretion in 20 assessing the adoptive applicant (e.g., “the agency shall consider the following factors for the 21 applicant” (emphasis added)), conducting a face-to-face interview for adoptive applicants is not 22 discretionary. See Cal. Code Regs. §§ 35181(a), 35183. Section 35177 mandates that the agency 23 assess adoptive applications as specified in Sections 35181 or 35183. County Defendants have not 24 pointed to any language or caselaw suggesting otherwise. These sections provide a mandatory 25 duty which Plaintiffs have sufficiently alleged that Defendants breached by failing to conduct 26 face-to-face interviews of all adoptive applicants. TAC ¶¶ 37, 40, 127. 27 Child Welfare Services Regulation 31-405.12 1 “shall . . . [g]ive preferential consideration for placement of the child to an adult who is a 2 grandparent, aunt, uncle or sibling of the child.” Chapter 31-405.12. County Defendants contend 3 that this statute provides discretion as to the consideration and determination of the child’s 4 placement, for example by not mandating what “specific actions” social workers should take. 5 County Mot. at 21. The Court agrees. Chapter 31-405 of the Child Welfare Services Regulation 6 does not require a social worker to take a “particular action” or provide “implementing guidelines 7 or rules” to facilitate a statutory requirement. Guzman, 46 Cal. 4th at 898; see de Villers v. Cnty. 8 of San Diego, 156 Cal. App. 4th 238, 261 (2007) (finding no mandatory duty where the predicate 9 enactment “confers on government officials the discretion to evaluate and decide how best to 10 implement the required security”) (citation omitted). A statute must require that “a particular 11 action be taken or not taken” and that action cannot involve the exercise of discretion. Haggis, 22 12 Cal. 4th at 498. Plaintiffs do not point to any language in the regulation mandating a particular 13 action. See ECF 227 at 19. Accordingly, the Court cannot find that this statute establishes a 14 mandatory duty. 15 Welfare & Institutions Code Section 16507.5 16 Similarly, California Welfare & Institutions Code Section 16507 provides for discretion. It 17 states that when a minor is separated from their family, the county welfare department or adoption 18 agency social worker “shall make any and all reasonable and necessary provisions for the care, 19 supervision, custody, conduct, maintenance, and support of the minor.” Cal. Welf. & Inst. Code § 20 16507.5 (emphasis added). The statute does not provide what those “reasonable and necessary 21 provisions” entail, leaving it to the discretion of the social worker. See Haggis, 22 Cal. 4th at 498 22 (holding that a public officer must have been required to take a particular action that does not 23 involve the exercise of discretion). This section does not provide a mandatory duty. 24 The Court thus DENIES the motion to dismiss count six to the extent it relies on 25 California Adoption Regulations and GRANTS the motion to dismiss as to the Child Welfare 26 Services Regulation and Welfare and Institution Code. 27 ii. Seventh Claim 1 breached mandatory duties under California Welfare & Institutions Code Section 328 and 2 California Penal Code 11146, which the Court takes up in turn. 3 California Welfare & Institutions Code § 328 4 California Welfare & Institutions Code Section 328 states that if a social worker “has 5 cause to believe that there was or is within the county [a child suffering abuse], the social worker 6 shall immediately make any investigation the social worker deems necessary . . . [.]” County 7 Defendants argue that the investigation is discretionary. However, the Code provides that in 8 conducting an investigation, the social worker “shall interview any child four years of age or older 9 who is a subject of an [abuse] investigation . . . [.]” Id. The Ninth Circuit has held that under this 10 code, social workers “have a legal obligation to investigate allegations of child abuse.” Capp v. 11 Cnty. of San Diego, 940 F.3d 1046, 1055 (9th Cir. 2019) (citing Cal. Welf. & Inst. Code § 328). 12 Thus, at this stage, Plaintiffs have alleged a mandatory duty to investigate a child abuse allegation 13 under Section 328. 14 Penal Code § 11164 15 California Penal Code Section 11164 states that “[i]n any investigation of suspected child 16 abuse or neglect, all persons participating in the investigation of the case shall consider the needs 17 of the child victim and shall do whatever is necessary to prevent psychological harm to the child 18 victim.” Cal. Penal Code § 11164. The statute also states that the “intent and purpose of this 19 article is to protect children from abuse and neglect.” Id. An enactment does not create a 20 mandatory duty if it “merely recites legislative policies that must be implemented through a public 21 agency’s exercise of discretion.” Cnty. of Los Angeles v. Superior Ct., 102 Cal. App. 4th 627, 639 22 (2002) (“Terrell R.”) (citation omitted). Because Penal Code Section 11164 does not indicate how 23 a person participating in an abuse investigation should consider the “needs of the child” or what 24 actions they should take, it does not establish a mandatory duty. See id. The Court therefore 25 DENIES IN PART and GRANTS IN PART the motion to dismiss the seventh claim. 26 iii. Eighth Claim 27 County Defendants move to dismiss Plaintiffs’ eighth claim that the County Defendants 1 requires social workers to make an “immediate in-person response” where a child is “reported to 2 the county welfare services department to be endangered by abuse, neglect, or exploitation.” Cal. 3 Welf. & Inst. Code § 16504(a), (c). The social worker “shall consider providing appropriate social 4 services to maintain the child safely.” Id. § 16504(a). However, an in-person response is not 5 required when the department determines “based upon an evaluation of risk” (which “includes 6 collateral contacts” and “a review of previous referrals”) that an in-person response is not 7 appropriate. Id. This statute does not provide a mandatory duty because it vests discretion in the 8 social worker and department by not requiring an in-person response where the department 9 determines that one is not required. See Cnty. of Los Angeles v. Superior Ct., 209 Cal. App. 4th 10 543, 554 (2012) (holding that “[a]n enactment requiring a public entity to conduct an investigation 11 under certain circumstances does not, without more, impose a mandatory duty to take certain 12 specific action.”). Plaintiffs argue that the County Social Workers did not review previous 13 referrals, but the language of the statute merely states that the evaluation of risk “includes 14 collateral contracts, a review of previous referrals, and other relevant information” – it does not 15 mandate reviewing referrals. Cal. Welf. & Inst. Code § 16504(a). Accordingly, this statute does 16 not establish a mandatory duty and the Court GRANTS the motion to dismiss this cause of action. 17 iv. Ninth Claim 18 County Defendants move to dismiss Plaintiffs’ ninth claim that the County Defendants 19 breached mandatory duties under California Welfare & Institutions Code Section 16519 and Child 20 Welfare Services Regulation 31-405.22. The Court takes up each statute in turn. 21 California Welfare & Institutions Code § 16519 22 California Welfare & Institutions Code Section 16519 merely recounts the legislative 23 finding and declaration regarding the importance of foster child safety. Plaintiffs point to no 24 language in the statute that imposes a duty. See Terrell R., 102 Cal. App. 4th at 638-39. This 25 statute does not establish a mandatory duty. 26 Child Welfare Services Regulation 31-405.22 27 Child Welfare Services Regulation 31-405.22 requires that a social worker “shall . . . 1 child’s growth and development while in placement.” Chapter 31-405.22. Child Welfare Services 2 Regulation does not create a mandatory duty as it provides discretion to social workers. See 3 Mueller v. Cnty. of San Bernardino, 2018 WL 8130611, at *3 n.5 (C.D. Cal. May 9, 2018) (noting 4 that while Section 31-405.22 “appear[s] to impose a duty to complete a process” it “afford[s] 5 significant discretion to social workers”); but see Walter v. Cnty. of San Diego, 2020 WL 6 7024660, at *14 (S.D. Cal. Nov. 30, 2020) (finding that the use of the word “shall” indicated a 7 mandatory duty in regulation 31-405.22 as social workers failed to monitor the child’s 8 deteriorating health). 9 The Court thus GRANTS the motion to dismiss the ninth cause of action. 10 v. Tenth Claim 11 Plaintiffs concede that Welfare & Institutions Code Section 16501.35 does not establish a 12 mandatory duty. ECF 227 at 21 n.1. Accordingly, the Court GRANTS the motion to dismiss the 13 tenth cause of action based on that statute. County Defendants also move to dismiss the claim 14 based on Child Welfare Services Regulation Section 31-125, which requires a social worker 15 investigating a referral to have “in-person contact with all of the children alleged to be abused, 16 neglected or exploited, and at least one adult who has information regarding the allegations.” 17 Defendants contend that the guideline does not provide instruction on how the social worker 18 should determine the existence of any condition placing the child at risk. County Mot. at 23. 19 However, the requirement to have in-person contact provides a clear directive. See Gerrie v. Cnty. 20 of San Bernardino, 2019 WL 8013412, at *9 (C.D. Cal. Nov. 12, 2019) (finding that “the 21 requirement that the social worker contact the child’s parents as part of the investigation [pursuant 22 to regulation 31-125] is mandatory”). The Court therefore DENIES the motion to dismiss the 23 tenth cause of action. 24 2. IIED and NIED Claims 25 County Defendants argue that they are immune from Plaintiffs’ IIED and NIED claims 26 because they are based on Defendants’ allegedly inadequate investigation of child abuse. County 27 Mot. at 10-11. Under California law, social workers are absolutely immune under Section 820.2 1 Alameda Cnty. Child Protective Servs., 155 Cal. App. 4th 456, 466 (2007), as modified (Oct. 4, 2 2007) (citing cases); see also Alicia T. v. Cnty. of Los Angeles, 222 Cal. App. 3d 869, 881 (1990), 3 modified (Aug. 16, 1990) (holding that “social workers must be absolutely immune from suits 4 alleging the improper investigation of child abuse . . .”). Indeed, where social workers act under 5 the “discretion invested in them under California law,” they are immune. Fredenburg v. Cnty. of 6 Santa Clara, 2009 WL 10710451, at *11 (N.D. Cal. Nov. 4, 2009); see B.H., 62 Cal. 4th at 191- 7 92, 194 (holding that decisions “regarding determinations of child abuse [and] the potential risk to 8 a child . . . are subjective discretionary” decisions and are entitled to immunity). Claims 13, 18, 9 and 19, which are asserted against all Defendants, do not specify what conduct by County 10 Defendants renders them liable. See TAC ¶¶ 177-182 (describing the conduct of “all defendants” 11 as indifferent to Plaintiffs’ safety and “enabl[ing]” the Centenos’ abuse), 204-209 (same), 210-17 12 (incorporating allegations from TAC). However, the TAC repeatedly emphasizes County 13 Defendants’ failure to properly investigate the allegations of child abuse. TAC ¶¶ 31-84. Such 14 allegations fall squarely within the Government Code immunities discussed above. See Ortega v. 15 Sacramento Cty. Dep’t of Health & Human Servs., 161 Cal. App. 4th 713, 733 (2008) (finding 16 that section 820.2 immunity applied to claims based on social workers’ alleged failure to gather 17 the pertinent facts before releasing child to her father, who then stabbed child in the heart and 18 lung). Accordingly, County Defendants’ motion to dismiss claims 13, 18, and 19 for IIED and 19 NIED is GRANTED with leave to amend on the basis that the claims appear to be barred by 20 Government Code § 820.2. See Williams v. Cnty. of Monterey, 2019 WL 5269025, at *6 (N.D. 21 Cal. Oct. 17, 2019) (dismissing IIED claim under discretionary act immunity where plaintiff 22 alleged that defendant “failed to conduct an adequate investigation”). 23 V. MOTION TO DISMISS BY STATE OF CALIFORNIA AND AMY LAFFERTY 24 A. State of California’s Motion 25 The California Department of Social Services (the “State”) moves to dismiss each of the 26 claims in the TAC alleged against the State. ECF 220 at 2-3. Plaintiffs do not oppose the motion 27 to dismiss the State of California but contend that dismissal should be without prejudice. ECF 226 1 The “Eleventh Amendment prohibits federal courts from hearing suits brought against an 2 unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op, 951 F.2d 1050, 1053 (9th Cir. 3 1991(citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). “The 4 Eleventh Amendment’s jurisdictional bar covers suits naming state agencies and departments as 5 defendants, and applies whether the relief sought is legal or equitable in nature.” Id. Because “it is 6 clear...that the complaint could not be saved by amendment,” dismissal is with prejudice. 7 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 8 B. Amy Lafferty’s Motion 9 Amy Lafferty, the State’s adoption services representative in charge of the adoption of 10 Pablo and Maci, moves to dismiss the claims brought against her based on sovereign immunity 11 grounds and Plaintiffs’ failure to state a claim. ECF 220 (“Lafferty Mot.”). The Court addresses 12 the arguments in the order presented in Lafferty’s motion to dismiss. 13 1. Sovereign Immunity 14 As a general matter, individual or “[p]ersonal-capacity suits seek to impose personal 15 liability upon a government official for [wrongful] actions [s]he takes under color of . . . law,” and 16 in the course of official duties. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Graham”). By 17 contrast, an officer sued in her official capacity “is not a suit against the official but rather is a suit 18 against the official’s office. . . . As such, it is no different from a suit against the State itself.” Will 19 v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, an officer sued in her official 20 capacity is entitled to invoke sovereign immunity. Graham, 473 U.S. at 167. 21 Plaintiffs do not specify in the TAC whether Lafferty is named in her individual or official 22 capacity. However, “a section 1983 suit against state actors necessarily implies a suit against the 23 defendants in their personal capacities.” Cerrato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968, 24 973 n.16 (9th Cir. 1994); see also Charfouros v. Board of Elections, 249 F.3d 941, 956-57 (9th 25 Cir. 2001) (construing ambiguous complaint liberally to allege claims against board members in 26 their individual capacities). The TAC brings Section 1983 claims based on Lafferty receiving 27 abuse reports, failing to follow up on these reports or interview Jose Centeno or the Centenos’ 1 received concerning reports. TAC ¶¶ 37-40, 54-55, 57-58. Thus, while the TAC does not identify 2 the basis for its suit against Lafferty, because the allegations are about her failure to act, the Court 3 construes it as a suit against Lafferty in her individual capacity. Therefore, Lafferty cannot avail 4 herself of sovereign immunity at this stage. See Charfouros, 249 F.3d at 956-57. 5 2. Kristin K.’s NIED and IIED Claims 6 Lafferty argues that the statute of limitations for Kristin K.’s state law claims expired prior 7 to the filing of the original complaint on February 25, 2022. In California, NIED and IIED have a 8 two-year statute of limitations. Cal. Code Civ. Proc. § 335.1. When a minor brings a claim, the 9 statute of limitations is tolled until the age of majority. Cal. Code Civ. Proc. § 352(a). However, 10 the tolling section does not apply to actions against a public entity or public employee for which a 11 government claim is required. Cal. Code Civ. Proc. § 352(b). Even if tolling applied here, Kristin 12 K. was born in January 1997 and turned 18 in January 2015, and thus her claims expired in 13 January 2017, several years before she brought the instant suit. ECF 220 at 19-20. In addition, 14 Kristin K. failed to respond to this argument, thus conceding it. See Namisnak v. Uber Techs., 15 Inc., 444 F. Supp. 3d 1136, 1146 (N.D. Cal. 2020) (quoting Ardente, Inc. v. Shanley, 2010 WL 16 546485, at *6 (N.D. Cal. Feb. 9, 2010)) (“Plaintiff fails to respond to this argument and therefore 17 concedes it through silence.”). Accordingly, the Court DISMISSES Kristin K.’s IIED and NIED 18 claims against Lafferty with prejudice. 19 3. Section 1983 Claims (Counts 1-3) 20 Lafferty argues that Plaintiffs improperly contest state court determinations by alleging 21 that Lafferty “fail[ed] to ensure adequacy and primacy of relative caregiver placements.” Lafferty 22 Mot. at 21; TAC ¶ 93. To the extent that Plaintiffs attempt to contest the adoption proceedings, 23 the Court “lack[s] jurisdiction to review the final determinations of a state court in judicial 24 proceedings,” Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001), and 25 on that basis, Lafferty contends, the claims must be dismissed. Lafferty also argues that she is 26 protected from suit by absolute and qualified immunity and that Plaintiffs failed to show deliberate 27 indifference, state-created danger, or interference with proper placement of Plaintiffs. The Court a. Absolute and Qualified Immunity 1 Lafferty argues that she is entitled to absolute immunity for the quasi-judicial and quasi- 2 prosecutorial functions of her job. See Hardwick, 844 F.3d at 1115. As noted, “social workers are 3 not afforded absolute immunity for their investigatory conduct, discretionary decisions or 4 recommendations.” Cox, 913 F.3d at 837 (quoting Tamas, 630 F.3d at 842). Plaintiffs allege that 5 Lafferty ignored reports of abuse, failed to carry out her duty of investigating reports of abuse, and 6 assisted with presenting false information. TAC ¶¶ 37, 53-54, 57-58, 100, 138. Lafferty merely 7 states that she is entitled to absolute immunity for acts where she was engaged in the quasi- 8 prosecutorial and quasi-judicial functions of her job. Lafferty Mot. at 23. She does not argue 9 what alleged conduct falls within those functions, and she thus has failed to meet her burden at 10 this stage to show that she is entitled to absolute immunity. See Miller, 335 F.3d at 898. 11 Lafferty also argues that she is entitled to qualified immunity because she was involved in 12 decision-making for foster or adoption placements and investigation of claims of abuse. Lafferty 13 Mot. at 23-24. “[T]o overcome qualified immunity, Plaintiffs must show that [defendants] (1) 14 ‘violated a federal statutory or constitutional right’ and (2) ‘the unlawfulness of their conduct was 15 clearly established at the time.’ ” Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022) (quoting 16 District of Columbia v. Wesby, 583 U.S. 48 (2018)). Under the Fourteenth Amendment, the 17 government has affirmative duties to protect foster children in state custody from harm inflicted by 18 a foster parent. Tamas, 630 F.3d at 842; see Lipscomb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 19 1992). Typically, once the foster child is adopted, the adoptive parents become responsible for 20 caring for the child and not the state. Tamas, 630 F.3d at 843. “However, state actors may 21 nevertheless incur liability under § 1983 if state officials affirmatively created a danger that the 22 adopted child would not have otherwise faced.” Id. (citing L.W. v. Grubbs, 974 F.2d 119, 121 (9th 23 Cir. 1992)). Since 1992, when the Ninth Circuit decided Tamas, there was a clearly established 24 due process right to liberty, safety, and care or treatment for a child in foster care. Id. at 846-47 25 (“[o]nce the state assumes wardship of a child, the state owes the child, as part of that person’s 26 protected liberty interest, reasonable safety and minimally adequate care and treatment appropriate 27 to the age and circumstances of the child.”) (quoting Lipscomb, 962 F.2d at 1379). This was so in 1 2006 when Lafferty first became involved in Plaintiffs’ care. 2 Here, by ignoring reports of the Centenos’ abuse, pushing for their adoption of Plaintiffs, 3 and pushing forward with their adoption of additional children despite reports of concerns about 4 Plaintiffs’ welfare, TAC ¶¶ 37, 54-58, Lafferty was deliberately indifferent and affirmatively 5 created danger for Plaintiffs. See Tamas, 630 F.3d at 843-44 (finding that the state “affirmatively 6 created the particular danger that exposed [the child] to harm” by approving foster care licenses 7 for foster parents to adopt the child despite referrals reporting the parents for physical and sexual 8 abuse). Thus, Plaintiffs have adequately alleged that Lafferty violated a clearly established liberty 9 right and Lafferty is not entitled to qualified immunity on the Section 1983 claims at this stage. 10 b. Deliberate Indifference and State Created Danger (Counts 1 and 2) 11 12 Lafferty seeks to dismiss the first cause of action. Plaintiffs allege that Lafferty received 13 reports that detailed abusive behavior within the Centeno household, that the Centenos were 14 “overwhelmed,” that Michelle K., P.K., and Kaya K. were at “high risk” for abuse, that additional 15 children in the household would increase the already existing danger, and that Lafferty ignored 16 and failed to follow up on these reports and pushed for the Centenos’ adoption of additional 17 children. TAC ¶¶ 37, 55-57. Lafferty argues that there are no allegations that she had the 18 authority to correct actions of other defendants and that an absence of state records does not equate 19 to a lack of action on her part. Lafferty Mot. at 22. At this stage, Plaintiffs have alleged that there 20 was an objectively substantial risk of harm, Lafferty was subjectively aware of facts from which 21 an inference could be drawn of the risk of serious harm, and that a reasonable officer would have 22 been compelled to draw that inference. See Momox-Caselis, 987 F.3d at 845. Therefore, the 23 Court DENIES the motion to dismiss the Section 1983 claim in count one. 24 Lafferty also argues that the state-created danger claim in count two fails as it requires 25 “affirmative conduct on the part of the state in placing the plaintiff in danger.” Lafferty Mot. at 26 22-23 (quoting L.W., 974 F.2d at 121). In their opposition, Plaintiffs do not contest this, thus 27 conceding it. See Namisnak, 444 F. Supp. 3d at 1146. The Court therefore DISMISSES the c. Interference with Proper Placement (Count 3) 1 Plaintiffs allege that Lafferty interfered with proper placement of Plaintiffs by providing 2 false information to the courts. TAC ¶ 106. However, Plaintiffs have not alleged what 3 information Lafferty provided that was wrongful or false, to which court, or in what proceeding. 4 Accordingly, the Court DISMISSES the third cause of action with leave to amend. 5 4. Section 1985 Claims (Counts 1-3) 6 Lafferty moves to dismiss the Section 1985 claims because Plaintiffs fail to allege any 7 facts showing conspiracy. Lafferty Mot. at 24. “To state a cause of action under § 1985, a 8 complaint must allege (1) a conspiracy, (2) to deprive any person or a class of persons of the equal 9 protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of 10 the conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage or a 11 deprivation of any right or privilege of a citizen of the United States.” Gillespie v. Civiletti, 629 12 F.2d 637, 641 (9th Cir. 1980) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-103 (1971)). “A 13 mere allegation of conspiracy without factual specificity is insufficient.” Karim-Panahi v. Los 14 Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). The TAC contains no factual allegations 15 that Lafferty conspired to deprive Plaintiffs of their rights and states only legal conclusions. 16 Therefore, the Court DISMISSES the conspiracy claims against Lafferty in Counts 1-3 with leave 17 to amend. 18 5. Breach of Mandatory Duty (Counts 6, 7, and 9) 19 Lafferty also moved to dismiss Plaintiffs’ breach of mandatory duty claims. Plaintiffs 20 bring three claims against Lafferty for breach of mandatory duties under California Child Welfare 21 Services Program, Welfare and Institutions Code, California Adoption Regulations, and California 22 Penal Codes. The Court takes up each claim for breach of mandatory duty in turn. 23 a. Sixth Claim 24 Plaintiffs bring the sixth cause of action under Child Welfare Services Program 31-405.12, 25 California Welfare & Institutions Code Section 16507.5, and California Adoption Regulations 26 35177 and 35183. Lafferty argues that California Child Welfare Services Program 31-405.12, and 27 California Welfare & Institutions Code Section 16507.5 do not establish a mandatory duty for her. 1 Lafferty Mot. at 27-28. Plaintiffs fail to respond to Lafferty’s arguments about these two 2 provisions, thus conceding they do not establish a mandatory duty for Lafferty. See Namisnak, 3 444 F. Supp. 3d at 1146. California Adoption Regulations 35177 and 35183 require the agency to 4 conduct face-to-face interviews with adoptive applicants and individuals residing in the household. 5 Plaintiffs allege that Lafferty failed to conduct these interviews. For the same reasons stated in 6 Section IV(C)(1)(b)(i), supra, Plaintiffs have sufficiently alleged a mandatory duty based on these 7 two regulations. The Court GRANTS in part and DENIES in part the motion to dismiss the sixth 8 claim. 9 b. Seventh Claim 10 Plaintiffs bring count seven under California Welfare and Institutions Code Section 328 11 and Penal Code Section 11164. Plaintiffs fail to argue what mandatory duty Welfare & 12 Institutions Code § 328 requires or how it applies to Lafferty, thus conceding the claim. ECF 226 13 at 16; see Namisnak, 444 F. Supp. 3d at 1146. As explained supra in Section IV(C)(1)(b)(ii), 14 Penal Code § 11164 does not establish a mandatory duty as it merely requires that those 15 participating in child abuse investigations do “whatever is necessary” to prevent harm and 16 “consider the needs of the child.” This allows for discretion and thus cannot establish a mandatory 17 duty. See Haggis, 22 Cal. 4th at 498. The Court therefore DISMISSES the seventh cause of 18 action for breach of a mandatory duty as to Lafferty. 19 c. Ninth Claim 20 Plaintiffs’ ninth claim relies on Welfare & Institutions Code Section 16519 and Child 21 Welfare Services Regulation 31-405.22. Welfare & Institutions Code Section 16519 merely 22 recounts the legislative finding and declaration regarding the importance of foster child safety. 23 Plaintiffs point to no language in the statute that imposes a mandatory duty. See Terrell R., 102 24 Cal. App. 4th at 638-39. Child Welfare Services Regulation 31-405.22 similarly does not 25 establish a mandatory duty on Lafferty. Regulation 31-001.1 states that the requirements in 31- 26 005 through 31-525 shall be met “by the county in the administration of child welfare services.” 27 Section 31-001.2 states that these requirements shall be met by “county probation departments.” 1 not respond to Lafferty’s argument on this point, thus conceding the issue. See Namisnak, 444 F. 2 Supp. 3d at 1146. The Court DISMISSES this claim as to Lafferty. 3 6. Michelle K. and P.K.’s IIED Claims 4 Michelle K. and P.K. bring IIED claims against Lafferty, which she seeks to dismiss. 5 Lafferty argues that she is immune from these claims under Government Code Section 820.2, and 6 that Plaintiffs fail to state a claim. Lafferty Mot. at 24, 29-30. The Court addresses immunity first 7 as it is a threshold issue. 8 Lafferty argues that she is immune from liability on the IIED claims pursuant to California 9 Government Code Section 820.2. For the same reasons discussed in Section IV(C)(2), the Court 10 DISMISSES with leave to amend claim 13 for IIED as on the basis that the claims appear to be 11 barred by Government Code § 820.2. 12 7. Punitive Damages 13 Lafferty finally argues that California Government Code Section 818 precludes punitive 14 damages for state law claims against the State and by extension, her because she is sued in her 15 official capacity. Lafferty Mot. at 31-32. Plaintiffs fail to respond, and thus concede the point. 16 See Namisnak, 444 F. Supp. 3d at 1146. The Court thus GRANTS Lafferty’s motion to dismiss 17 the demand for punitive damages. 18 VI. CONCLUSION 19 For the foregoing reasons, the Court grants in part and denies in part the motions to 20 dismiss. 21 As to the County: 22 • The Court DENIES the motion to dismiss counts one, two, four, and ten. 23 • The Court GRANTS the motion to dismiss count three with leave to amend. 24 • The Court GRANTS the motion to dismiss counts eight and nine. 25 • The Court GRANTS the motion to dismiss counts thirteen, eighteen, and nineteen with 26 leave to amend, and GRANTS IN PART and DENIES IN PART the motion to dismiss 27 counts six and seven. 1 As to the State: 2 e The Court GRANTS the State’s motion to dismiss the Third Amended Complaint with 3 prejudice. 4 || As to Lafferty: 5 e The Court DENIES the motion to dismiss the Section 1983 claim in count one. 6 e The Court GRANTS the motion to dismiss the Section 1983 claims in counts two and 7 three with leave to amend. 8 e The Court GRANTS the motion to dismiss counts one, two, and three under section 1985 9 with leave to amend. 10 e The Court GRANTS IN PART AND DENIES IN PART the motion to dismiss count six. 11 e The Court GRANTS the motion to dismiss counts seven and nine. 12 e The Court GRANTS the motion to dismiss count thirteen with leave to amend. g 13 e The Court GRANTS the motion to dismiss counts eighteen and nineteen with prejudice. 14 e The Court GRANTS the motion to dismiss the demand for punitive damages.

a 16 IT IS SO ORDERED.

17 Dated: September 27, 2024 2 18 Mod □□ 19 ooh: ARACELI MARTINEZ-OLGUIN 20 United States District Judge 21 22 23 24 25 26 27 28