Kennedy v. County of Contra Costa

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 JOHL JONATHAN KENNEDY, Case No. 19-cv-04280-JSC

10 Plaintiff, ORDER RE: DEFENDANTS’ MOTION 11 v. FOR SUMMARY JUDGMENT

12 COUNTY OF CONTRA COSTA, et al., Re: Dkt. No. 75 Defendants. 13

14 15 Plaintiff Johl Kennedy, representing himself, contends that Defendants violated his 16 constitutional due process rights with respect to child support proceedings in Arizona and 17 California family courts. Defendants, Contra Costa County and various employees of the Contra 18 Costa County Department of Child Support Services, move for summary judgment on Plaintiffs’ 19 claims.1 (Dkt. No. 75.) After carefully considering the parties’ briefs and the relevant legal 20 authority, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), VACATES 21 the July 29, 2021 hearing, and GRANTS Defendants’ motion for summary judgment. Plaintiff has 22 failed to identify evidence which creates a dispute of material fact regarding (1) whether 23 Defendants violated his constitutional due process rights, or (2) whether he satisfied the claim 24 presentation requirements of the California Tort Claims Act for his state law claims. 25 // 26 27 1 SUMMARY JUDGMENT EVIDENCE2 2 Plaintiff has been an Arizona resident since 2001. (Dkt. No. 84-2 at ¶ 14.3) In 2011, he 3 filed a petition with the Maricopa County Superior Court in Arizona (the “Arizona family court”) 4 to divorce his wife. (Id.) In 2012, the Arizona family court issued a Dissolution Decree which 5 awarded sole custody of the couple’s minor children to Plaintiff’s ex-wife and ordered Plaintiff to 6 pay child support. (Id.; Dkt. No. 84-6.) Two years later, Plaintiff’s ex-wife moved to California 7 with the couple’s children and requested that the Contra Costa County Department of Child 8 Support Services (“the Department”) enforce the Arizona family court child support order. (Dkt. 9 No. 84-2 at ¶ 15; Dkt. No. 84-10.) A few months later, Plaintiff “rented a second room in 10 California to obtain more parenting time with my children.” (Dkt. No. 84-2 at ¶ 16.) 11 In February 2015, Plaintiff contacted the Department and requested that they update the 12 child support order and add both his Arizona and California addresses to his account. (Id. at ¶ 17.) 13 Plaintiff was advised that “California does not have jurisdiction to modify the Arizona order. The 14 request to modify will have to be done in Arizona.” (Id.; Dkt. No. 84-13.) In August 2015, 15 Plaintiff left his California rental and moved back to Arizona full-time. (Dkt. No. 84-2 at ¶ 19.) 16 Four months later, Plaintiff moved to 12807 N. 30th Ave., Phoenix AZ 85029. (Id.) In February 17 2016, Plaintiff contacted the Contra Costa County Department of Child Support Services and 18 requested that they update his address. (Id.) That same day, Plaintiff “verified my address 12807 19 N. 30th Ave Phoenix, AZ 85029 with the California Child Support Enforcement System and 20 updated my account.” (Id.; Dkt. No. 84-17.) 21 On May 16, 2016, Melinda Self, a supervising attorney with the Department, and Alyssa 22 Cochran, a Child support Specialist II with the Department, filed a Registration of Foreign 23 Support Orders (the “Registration Order”) with the California family court which attached the 24 Arizona family court’s 2013 child support order. (Dkt. No. 84-2 at ¶ 21; Dkt. No. 84-21.) 25 Although the proof of service states that the Registration Order was mailed to Plaintiff on May 16, 26 2 Because this is Defendants’ motion for summary judgment, the Court views the evidence in the 27 light most favorable to Plaintiff. 1 2016 at 12807 N. 30th Ave Phoenix, AZ 85029, Plaintiff attests that he did not receive the 2 Registration Order. (Dkt. No. 84-22; Dkt. No. 84-2 at ¶ 21.) 3 On June 2, 2016, Plaintiff received a notice that a hearing was set for July 11, 2016 in the 4 California family court. (Dkt. No. 84-2 at ¶ 22; Dkt. No. 84-24.) Plaintiff attests that at the July 5 11, 2016 hearing Department employees Mary Lindelof and G. Boyd Tarin “told Judge Murphy 6 that I was a California resident, and that California had jurisdiction to modify my Arizona child 7 support order. I appeared by telephone from my Arizona residence and argued that I was an 8 Arizona resident, and that California lacks jurisdiction to modify my Arizona child support order.” 9 (Dkt. No. 84-2 at ¶ 23; Dkt. No. 84-26.) The hearing was then continued to October 7, 2016. (Id.) 10 At the October 2016 hearing, Ms. Lindelof again appeared on behalf of the Department, and 11 according to Plaintiff, Ms. Lindelof again represented that Plaintiff was a California resident and 12 that California could modify the child support order. (Dkt. No. 84-2 at ¶ 25.) The California 13 family court issued an order requiring Plaintiff to reimburse his wife for certain medical expenses. 14 (Dkt. No. 84-27.) 15 In November 2016, Plaintiff (through pro bono counsel) filed a petition to modify his child 16 support with the Arizona family court. (Dkt. No. 84-2 at ¶ 26; Dkt. No. 84-28.) Three months 17 later, Susan Aires, a Child Support Specialist II with the Department, faxed documents to the 18 Arizona family court including the Registration Order. (Dkt. No. 84-2 at ¶ 27; Dkt. No. 84-23.) 19 On March 8, 2017, the Arizona family court found that Arizona had jurisdiction over the matter of 20 child support and set a hearing date on Plaintiff’s request to modify the child support order. (Dkt. 21 No. 84-31.) The Arizona family court thereafter set a status conference at which both a California 22 family court judge and Ms. Self from the Department appeared. While both the Arizona and 23 California family court judges initially agreed that Arizona had jurisdiction over the child support 24 order, following Ms. Self’s representation that the Department’s position was that it did have 25 jurisdiction to modify because Plaintiff did not oppose the Registration Order, the judges changed 26 their position and found that California had jurisdiction over the child support order. (Dkt. No. 27 84-25; Dkt. No. 84-35.) 1 with the California family court. (Dkt. No. 84-2 at ¶ 40.) In response, Department employee 2 Cheryl Lebow filed a request for an order with the California family court which stated that “[i]f 3 jurisdiction is found to be appropriated [sic] and upon proper showing of changed circumstances, 4 set child support at the current guideline amount” and set a hearing date for later that month. (Dkt. 5 No. 84-38 at 3.) At the hearing, Nancy Adams and G. Boyd Tarin appeared on behalf of the 6 Department and the hearing was continued to July 2018. (Dkt. No. 84-39.) Plaintiff attests that at 7 the hearing the Department employees gave “false information to the court stating that he was a 8 California resident” at the time the Registration Order was filed.4 (Dkt. No. 84-2 at ¶ 42.) 9 Plaintiff also attests that in September 2017, Department employee Haley Riley “gave false 10 information, stating that the DCSS had a verified California address for me when they filed the 11 registration, and the AZ court most recently confirmed CA has jurisdiction over the issue of child 12 support on 7/27/17.” (Id. at ¶ 43.) Around this same time, on September 22, 2017, the 13 Department sent Plaintiff a letter which stated, among other things, that

14 DCSS has a verified address on file for the Complainant in CA and the AZ court most recently confirmed CA has jurisdiction over the 15 issue of child support on 7/27/17. This issue cannot be resolved through the complaint resolution process and must be addressed by 16 the court. Per our records, you had a court date on 9/20/17 to address this issue. 17 (Dkt. No. 84-42 at 3.) Plaintiff attest that he thereafter filed a “complaint with the DCSS Office of 18 Administrative Hearings.” (Dkt. No. 84-2 at ¶ 44.) Plaintiff’s complaint was then set for hearing 19 on January 17, 2017, and in a prehearing statement, Melinda Self as the Department Director, 20 stated that: 21 When CA registered the AZ orders for modification on 5/16/2016 22 (Exhibit F), the Complainant had 25 days to contest the validity or enforcement of the orders. The Complainant did not contest the 23 registration with the registering court as required, and subsequently, the AZ courts filed a Minute Order on 8/1/17 finding that CA has 24 jurisdiction over legal decision making, parenting time and child support (attached as Exhibit G). The Complainant has appealed AZ’s 25

26 4 While Plaintiff’s declaration states that the audio file for this and other hearings are attached, neither the electronic nor paper version of Plaintiff’s opposition briefing includes any audio files. 27 See Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (requiring a nonmoving party to “identify findings regarding jurisdiction in that state. CA has continued any 1 further matters until that appeal has been completed. 2 (Dkt. No. 84-44 at 3.) At the January 17, 2017 hearing regarding Plaintiff’s complaint, the matter 3 was continued to the following month “in hopes of resolving outstanding issues.” (Dkt. No. 84- 4 43.) Plaintiff attests that Department employees Danielle Smith and Haley Ridge admitted at this 5 hearing that his verified address at the time the Registration Order was filed was 12807 N 30th 6 Ave, Phoenix AZ 85029. (Dkt. No. 84-2 at ¶ 47.) 7 In September 2018, the Arizona court of appeals reversed the Arizona family court’s 8 dismissal of Plaintiff’s petition to modify his child support order finding that Arizona did have 9 jurisdiction to modify the order and remanding for further proceedings. (Dkt. No. 84-45.) The 10 court stated in relevant part:

11 We conclude that California can enforce the Arizona child support order because it was properly registered in California. Arizona did 12 not, however, lose continuing, exclusive jurisdiction because California did not modify the Arizona order, despite the confusing 13 ‘for modification’ language in the California caption. Accordingly, the superior court erred in dismissing Father's petition to modify. 14 (Id. at ¶ 14.) Plaintiff attests that he did not refile his petition to modify child support and he 15 continues to pay child support pursuant to the California family court orders. (Dkt. No. 84-2 at ¶ 16 52.) 17 PROCEDURAL BACKGROUND 18 Plaintiff, proceeding without an attorney, filed this action in July 2019 alleging violation of 19 his procedural due process rights under 28 U.S.C. § 1983 and various state law claims and seeks 20 $1 million in damages. (Dkt. No. 1.) He names Contra Costa County and Contra Costa County 21 Department of Child Support Services employees Melinda Self, Haley Ridge, Danielle Smith, 22 Kelli Evans, Alyssa Cochran, Mary Lindelof, Cheryl Lebow, Susan Aires, Nancy Adams, and 23 Gilbert Boyd Tarin as defendants. Defendants answered the complaint. (Dkt. No. 13.) 24 On January 21, 2021, the Court entered an amended pretrial order and set a motion for 25 summary judgment filing deadline of May 6, 2021. (Dkt. No. 74.) In the Court’s Order, the Court 26 advised Plaintiff of the consequences of failing to respond to Defendants’ motion for summary 27 judgment in accordance with Rand v Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) 1 (App A). (Id.) Plaintiff filed a timely opposition to Defendants’ motion for summary judgment. 2 (Dkt. No. 84.) He also thereafter filed a motion for leave to file a sur-reply, a motion for leave to 3 permit late responses to his requests for admission, and a motion for leave to file a motion for 4 partial summary judgment. (Dkt. Nos. 89, 91, 94, 95.) The Court denied the latter motion as 5 Plaintiff had not shown good cause to modify the Court’s scheduling order to allow late filing of a 6 motion for summary judgment. (Dkt. No. 97.) 7 The Court directed Defendants to respond to Plaintiff’s request to excuse his untimely 8 October 5, 2020 responses to Defendants requests for admission which had been served on June 3, 9 2020. (Id.) Defendants thereafter filed a statement of non-opposition. (Dkt. No. 98.) “A trial 10 judge has discretion to permit a late response to a request for admissions made pursuant to Rule 36 11 [], and thus relieve a party of apparent default.” French v. United States, 416 F.2d 1149, 1152 (9th 12 Cir. 1968). However, under Rule 36(b) the court can only do so “when (1) the presentation of the 13 merits of the action will be subserved, and (2) the party who obtained the admission fails to satisfy 14 the court that withdrawal or amendment will prejudice that party in maintaining the action or 15 defense on the merits.” Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (internal 16 quotation marks omitted). Given Plaintiff’s unrepresented status, the fact that the admissions 17 would otherwise be case dispositive, and the absence of any claim of prejudice by Defendants, the 18 Court exercises its discretion to excuse Plaintiff’s late submission of his request for admission 19 responses. 20 In addition, the Court grants Plaintiff’s unopposed request to file a sur-reply. (Dkt. No. 21 89.) 22 LEGAL STANDARD 23 Summary judgment is proper where the pleadings, discovery and affidavits show that there 24 is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a 25 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of 26 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 27 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the 1 identifying those portions of the pleadings, discovery and affidavits which demonstrate the 2 absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). 3 When the moving party has met this burden of production, the nonmoving party must go 4 beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that 5 there is a genuine issue for trial. Id. If the nonmoving party fails to produce enough evidence to 6 show a genuine issue of material fact, the moving party wins. Id. At summary judgment, the Court 7 must view the evidence in the light most favorable to the nonmoving party: if evidence produced 8 by the moving party conflicts with evidence produced by the nonmoving party, the judge must 9 assume the truth of the evidence set forth by the nonmoving party with respect to that fact. Tolan 10 v. Cotton, 572 U.S. 650, 657-58 (2014). 11 EVIDENTIARY OBJECTIONS 12 Defendants have raised a number of evidentiary objections regarding the evidence Plaintiff 13 submitted in opposition to the motion for summary judgment. For the most part, the objected to 14 evidence is not material to the Court’s decision and it is thus unnecessary to resolve Defendants’ 15 objections. To the extent the Order cites to portions of Plaintiff’s declaration or the exhibits 16 thereto to which Defendants have objected, the Court is not relying on any evidence for the truth 17 of the matter and thus any hearsay objection is overruled. See Fed. R. Evid. 801(c). 18 DISCUSSION 19 The gravamen of Plaintiff’s claims is that Defendants—Contra Costa County, and various 20 employees of the Contra Costa County Department of Child Support Services—conspired to deny 21 him his due process rights when they registered a 2013 Arizona child support order in his 22 California family court case without providing him notice and when they made false statements 23 and interfered in his family court proceedings in Arizona and California. 24 A. Plaintiff’s Procedural Due Process Claims 25 Procedural due process protects individuals against the depravation of liberty or property 26 by the government without due process. Portman v. County of Santa Clara, 995 F.2d 898, 904 27 (9th Cir. 1993). For purposes of due process, a person has a protected property interest in a benefit 1 748, 756 (2005). A legitimate claim protected by the Fourteenth Amendment is one contractually 2 or statutorily granted to a person. Id. Most broadly, due process requires “notice reasonably 3 calculated, under all the circumstances, to apprise interested parties of the pendency of the action 4 and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & 5 Trust Co., 399 U.S. 306, 314 (1950). This opportunity must be provided “in a meaningful time and 6 in a meaningful manner.” Logan v. Zummerman Brush Co., 455 U.S. 527, 540 (1981). However, 7 “due process is flexible and calls for such procedural protection as the situation demands.” Id. A 8 cognizable § 1983 claim based on procedural due process “has three elements: (1) a liberty or 9 property interest protected by the Constitution, (2) a depravation of the interest by the government, 10 and (3) lack of process.” Portman, 995 F.2d at 904. 11 Plaintiff complains of two types of procedural due process violations here: (1) failure to 12 provide notice of the Registration Order, and (2) interference in his California and Arizona family 13 court proceedings in violation of federal and state child support statutes. The Court addresses each 14 in turn. 15 1. Notice of the Registration Order 16 “[O]ne of due process’s central and undisputed guarantees is that, before the government 17 permanently deprives a person of a property interest, that person will receive—at a minimum— 18 notice.” Wright v. Beck, 981 F.3d 719, 727 (9th Cir. 2020) (internal citation omitted). The notice 19 must be “reasonably calculated, under all the circumstances, to apprise interested parties of the 20 pendency of the action and afford them an opportunity to present their objections.” Mullane v. 21 Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). 22 Due process does not require “actual notice,” but rather, only reasonable efforts to achieve 23 it. Dusenbery v. United States, 534 U.S. 161, 168-172 (2002). In Dusenbery, the Supreme Court 24 considered whether the government’s attempt at serving notice to an individual of its intention to 25 forfeit property seized at the time of his arrest satisfied due process’s notice requirements. The 26 Court rejected the plaintiff’s argument that he was entitled to “actual” notice and held that he had 27 received constitutionally adequate notice where the government sent letters by certified mail to the 1 arrested, and to his mother’s home; and it published legal notice of the forfeiture for three 2 consecutive weeks in a local newspaper. Id. at 164. The Court held that due process only requires 3 reasonable efforts to achieve notice and that the government’s efforts were reasonable. Id. at 169– 4 71. 5 According to the proof of service attached to the Registration Order, it was mailed to 6 Plaintiff on May 16, 2016 at 12807 N. 30th Ave. Phoenix, Arizona 85029-1303. (Dkt. No. 84-22 7 at 3.) Defendant Kelli Evans signed the proof of service attesting to service of the Registration 8 Order under penalty of perjury. (Id.) Plaintiff does not dispute that this was his address at that 9 time. (Dkt. No. 76-6, Kennedy Depo. at 124:13-16.) However, he contends that he never 10 received the Registration Order. (Id. at 124:11-12.) The federal common law mailbox rule 11 “provides that the proper and timely mailing of a document raises a rebuttable presumption that 12 the document has been received by the addressee in the usual time.” Schikore v. BankAmerica 13 Supplemental Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001) (emphasis added); see also Cal. Evid. 14 Code § 641 (“[a] letter correctly addressed and properly mailed is presumed to have been received 15 in the ordinary course of mail.”). The mailbox rule creates a presumption of mail receipt unless the 16 intended recipient can rebut the presumption of receipt through actual evidence of non-receipt 17 beyond a bare denial. See Schikore, 269 F.3d at 961 (stating that the mailbox rule is intended to 18 avoid “swearing contests” between parties on the question of receipt by mail). Plaintiff has not 19 identified any such evidence here. 20 Further, due process does not require actual receipt of the notice; rather, Defendants were 21 required to make reasonable efforts to provide notice. Dusenbery, 534 U.S. 168-69. The 22 evidence including the unrebutted application of the mailbox rule shows that Defendants made 23 such reasonable efforts here. To the extent that Plaintiff suggests that Defendants lied regarding 24 mailing the Registration Order, he has offered no evidence to support this theory and a party’s 25 “speculation does not create a factual dispute.” Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995) 26 (holding that a plaintiff’s allegation that defendants may have read his mail did not create dispute 27 of material fact). Accordingly, Plaintiff has failed to point to evidence from which a reasonable 1 when they mailed the Registration Order to Plaintiff at his current address. 2 2. Plaintiff’s Liberty Interest in Defendants’ Compliance with State and Federal Law 3 The remainder of Plaintiff’s procedural due process claim arises out of his theory that 4 Defendants illegally registered the 2013 Arizona child support order in his California family court 5 case and violated state and federal child support laws when they gave false information regarding 6 his residency and who had jurisdiction over the child support order in his family court proceedings 7 in Arizona and California. 8 a) Filing the Registration Order 9 Plaintiff has failed to show how filing the Registration Order interfered with a 10 constitutionally protected liberty or property interest. He has offered no evidence suggesting that 11 he challenged the Registration Order in the California family court and that the California family 12 court set aside the Registration Order or has otherwise found that the Registration Order was 13 illegally filed. Plaintiff cites various federal and state statutes, but he has failed to show as a 14 matter of law how registration of the 2013 child support order in California violated these statutes. 15 (Dkt. No. 84 at 26-28, (citing “28 U.S. Code §1738B FFCCSOA, 2008 UIFSA, SECTION 205, 16 California Code, Family Code - FAM § 5700.207, FAM § 5700.304, FAM § 5700.306, 22 CCR § 17 117403 and AZ Rev Stat §25-1225.”).) Further, while not dispositive of the claim, the Court 18 notes that the Arizona court of appeals found that “California can enforce the Arizona child 19 support order because it was properly registered in California.” Kennedy v. Wybenga, No. 1 CA- 20 CV 17-0559 FC, 2018 WL 4374636, at *3 (Ariz. Ct. App. Sept. 11, 2018). Plaintiff argues on 21 surreply that this sentence relates to enforcement of an earlier order, but that is not apparent from 22 the order which earlier notes “Father contends that California lacked jurisdiction and improperly 23 registered the child support order for modification in May 2016 because he was at all times an 24 Arizona resident.” Id. at *2. 25 Even if Plaintiff could show—which he has not—that the Registration Order was 26 improperly filed in violation of a protected liberty or property interest, the undisputed evidence in 27 the record shows that the Registration Order provided a basis by which Plaintiff could challenge 1 registered order, you must request a hearing within 25 days of the date the notice was mailed to 2 you.” (Dkt. No. 84-21 at 4.) Drawing all inferences in Plaintiff’s favor—including that he did not 3 receive a copy of the Registration Order—by his own admission he was aware as of July 11, 2016 4 (three months after the Registration Order was filed) that the California family court was 5 considering his ex-wife’s request to modify the Arizona support order. (Dkt. No. 84-2, Kennedy 6 Decl. at ¶ 23 (stating that he told the judge that “California lacks jurisdiction to modify my 7 Arizona child support order”).) The record does not reflect and Plaintiff does not argue that he 8 appeared or contested his ex-wife’s request to modify the child support order at the continued 9 hearing; nor has Plaintiff identified evidence that he challenged or was denied the opportunity to 10 challenge the California family court’s October 7, 2016 order modifying the child support order. 11 (Dkt. No. 84-27.) 12 Plaintiff has thus failed to identify evidence sufficient to support a finding that Defendants 13 deprived him of a protected liberty or property interest when they filed the Registration Order in 14 the California family court. 15 b) Interference in the Arizona and California Family Court Proceedings 16 Turning to Plaintiff’s claim that he was denied due process because Defendants made false 17 statements and violated state and federal child support laws, the Court has difficulty discerning the 18 nature of this claim. The party asserting the due process violation must provide a “careful 19 description” of the asserted liberty interest, and “vague generalities ... will not suffice.” Chavez v. 20 Martinez, 538 U.S. 760, 775–76 (2003) (internal citation and quotation marks omitted). To the 21 extent that Plaintiff’s claim that Defendants made false statements in his California and Arizona 22 family court actions can be construed as a claim of defamation by a government actor which 23 caused a third party to harm Plaintiff’s rights, defamation is generally not actionable under Section 24 1983. See Paul v. Davis, 424 U.S. 693, 695-97 (1976) (rejecting defamation allegations based on 25 lost employment opportunities due to police flyer incorrectly identifying plaintiff as an “active 26 shoplifter”); Gillette v. Malheur Cty., No. 2:14-CV-01542-SU, 2016 WL 3180228, at *6 (D. Or. 27 May 3, 2016), report and recommendation adopted, No. 2:14-CV-01542-SU, 2016 WL 3190560 1 official’s false statements caused bank to repossess plaintiff's assets was insufficient to state 2 Section 1983 defamation claim); Mazzeo v. Gibbons, 649 F. Supp. 2d 1182, 1197 (D. Nev. 2009) 3 (blacklisting from employment by private businesses based on government actors’ alleged 4 defamatory statements not actionable under Section 1983). 5 Nor has Plaintiff otherwise identified a protected liberty or property interest of which he 6 was deprived through Defendants’ statements. Plaintiff’s interrogatory responses identify the 7 following statements as the basis for his claim: 8 • Ms. Lindelof and Mr. Boyd Tarin’s statements at the July 11, 2016 California 9 family court hearing that California had jurisdiction to modify the child support 10 order because Plaintiff was a California resident. (Dkt. No. 76-5 at 3-4, ROG Resp. 11 Nos. 6, 8.) 12 • Ms. Self and Ms. Lebow’s September 7, 2017 statement in a filing with the 13 California family court on behalf of the County that “I request that if jurisdiction is 14 found to be appropriate and upon a proper showing of changed circumstances, set 15 child support at the current guideline amount.” (Id. at 4, ROG Resp. No. 10.) 16 • Ms. Aires’ February 13, 2017 fax to the Arizona family court of filings from the 17 California family court proceedings. (Id. at 5, ROG Resp. No. 12.) 18 • Ms. Ridge’s September 18, 2017 conversation with Plaintiff’s personal aide in 19 which she stated that California had an active California address for Plaintiff in 20 their system when the Registration Order was filed. (Id. at 5-6, ROG Resp. No. 21 14.) 22 • Ms. Smith’s statements at a January 17, 2018 California family court hearing that 23 the County had verified that Plaintiff’s address was 12807 N. 30th Street, Phoenix, 24 AZ 85029 two months before the Registration Order was filed, and that the Arizona 25 family court had “given California jurisdiction over child support.” (Id. at 6, ROG 26 Resp. No. 16.) 27 • Ms. Adams and Mr. Boyd Tarin’s statements during a September 20, 2017 1 2016 when the Registration Order was filed. (Id. at 8, ROG Resp. No. 22.) 2 Plaintiff’s opposition brief also identifies these statements: 3 • Ms. Self’s July 27, 2017 statements to the Arizona family court stating that they 4 had a California address for Plaintiff at the time the Registration Order was filed 5 and that California had jurisdiction to modify the child support order. (Dkt. No. 84 6 at 28-29.) 7 • Ms. Ridge’s September 22, 2017 submission in response to Plaintiff’s complaint in 8 the California family court action which stated that the Department had a California 9 address for Plaintiff at the time the Registration Order was filed and that the 10 Arizona family court stated that California had jurisdiction over the child support 11 order. (Id. at 36 (citing Dkt. No. 84-42 at 3).) 12 Plaintiff, however, has failed to offer evidence that these statements were in fact made, or that, 13 even if made, that the statements were false. Or further yet, that even if made and even if false, 14 that the making of the statements deprived him of a protected liberty or property interest. Plaintiff 15 has thus failed to raise a triable issue of fact regarding whether Defendants’ statements and actions 16 in his Arizona and California family court proceedings violated his procedural due process rights. 17 *** 18 Accordingly, Plaintiff has failed raise a triable question of fact or law with respect to his 19 procedural due process claim against the individual defendants. Because Plaintiff fails to show an 20 underlying constitutional violation, he cannot establish Monell liability under § 1983. See Patel v. 21 Maricopa County, 585 Fed. Appx. 452, 452 (9th Cir. 2014) (holding that plaintiff’s “Monell and 22 supervisory liability claims fail as there was no underlying constitutional violation”). 23 B. State Law Claims 24 In addition to his federal constitutional claims, Plaintiff makes state law claims for: (1) 25 violation of California civil rights laws; (2) intentional infliction of emotional distress; (3) 26 negligent infliction of emotional distress; and (4) negligence. While the Court could decline 27 supplemental jurisdiction regarding these state law claims given that it has concluded that there is 1 could invoke diversity jurisdiction given that the parties are diverse and he seeks $1 million in 2 damages, see 28 U.S.C. § 1332, the Court will address Plaintiff’s state law claims. 3 “The California Tort Claims Act requires anyone suing a public entity to first file a claim 4 with the entity that includes a ‘general description’ of the alleged injury ‘so far as it may be known 5 at the time of presentation of the claim.’” K.T. v. Pittsburg Unified Sch. Dist., 219 F. Supp. 3d 6 970, 981 (N.D. Cal. 2016) (quoting Cal. Gov't Code §§ 910, 945.4). “The purpose of [the 7 California Tort Claims Act] is ‘to provide the public entity sufficient information to enable it to 8 adequately investigate claims and to settle them, if appropriate, without the expense of litigation.’” 9 Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 (2004) 10 (quoting City of San Jose v. Superior Court, 12 Cal. 3d 447, 455 (1974)). The California Tort 11 Claims Act requires a party seeking to recover money damages from a public entity or its 12 employees to present a written claim for damages to the entity within six months after accrual of 13 the claim before filing suit in court. Cal. Gov’t Code §§ 911.2(a), 945.4. The requirements of the 14 California Tort Claims Act apply to suits against public employees as well as to public entities. 15 See Massa v. S. Cal. Rapid Transit Dist., 43 Cal. App. 4th 1217, 1222 (1996). Presentation of a 16 written claim and action on or rejection of the claim by the Government Claims Board are 17 conditions precedent to suit. Cal. Gov’t Code § 945.4; Mabe v. San Bernardino Cnty. Dep’t of 18 Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); California v. Super. Ct., 32 Cal. 4th 1234, 19 1239-40 (2004). 20 Defendants move for summary judgment on Plaintiff’s state law claims for failure to 21 comply with the California Tort Claims Act. Defendants have offered evidence that Plaintiff did 22 not file a tort claim with the County regarding his damages claims against Contra Costa County. 23 (Dkt. No. 77, Boyd. Decl. at ¶ 4.) Plaintiff has not responded to Defendants’ motion with respect 24 to the state law claims. Accordingly, because Plaintiff has failed to raise a triable issue of fact 25 regarding whether his claims are barred under the California Tort Claim Act presentation 26 requirements, the Court grants summary judgment in Defendants favor on the state law claims. 27 CONCLUSION 1 (Dkt. No. 75.) 2 The Clerk will enter separate judgment. 3 This Order disposes of Docket Nos. 75, 84, 89, 91. 4 IT IS SO ORDERED. 5 || Dated: July 27, 2021 Sut 7 ne ACQUELINE SCOTT CORL 8 United States Magistrate Judge 9 10 11 12

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