Martinez v. Nienow

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRENDA MARTINEZ; PEDRO Case No.: 3:23-cv-02338-RBM-AHG BERNAL; and A.B., a minor, by and 12 through her Guardian ad Litem, ORDER 13 William J. Phippard, (1) GRANTING IN PART AND DENYING 14 Plaintiffs, IN PART THE INDIVIDUAL 15 vs. DEFENDANTS’ MOTION TO DISMISS

16 M.D. SHALON NIENOW; M.D. (2) DENYING RADY’S MOTION TO SARAH VEGA; M.D. NATALIE 17 DISMISS LAUB; RADY CHILDREN’S

18 HOSPITAL; COUNTY OF SAN [Docs. 38, 37] DIEGO; SOCIAL WORKER 1; 19 SOCIAL WORKER 2; and DOES 1 20 through 50, inclusive, 21 Defendants. 22 23 On December 27, 2023, Plaintiffs Brenda Martinez (“Martinez”), Pedro Bernal 24 (“Bernal”), and A.B., a minor, by and thought her Guardian ad Litem, William J. Phippard, 25 (“Minor A.B.”) (collectively, “Plaintiffs”) filed a Complaint for Damages (“Complaint”) 26 against Shalon Nienow, M.D. (“Nienow”); Sarah Vega, M.D. (“Vega”); Natalie Laub, 27 28 1 M.D. (“Laub”); and Rady Children’s Hospital (“Rady”), among others. (Doc. 1 2 [“Compl.”].) 3 On June 10, 2024, Defendants Nienow, Vega, and Laub (collectively, the 4 “Individual Defendants”) filed a Motion to Dismiss Plaintiffs’ Complaint (the “Individual 5 Defendants’ MTD”). (Doc. 38.) On July 8, 2024, Plaintiffs filed an Opposition to the 6 Individual Defendants’ MTD. (Doc. 41.) On July 15, 2024, the Individual Defendants 7 filed a Reply in support of their MTD. (Doc. 44.) 8 On June 10, 2024, Rady filed a Motion to Dismiss Plaintiffs’ Complaint Pursuant to 9 Rule 12(b)(6) (“Rady’s MTD”). (Doc. 37.) On July 8, 2024, Plaintiffs filed an Opposition 10 to Rady’s MTD. (Doc. 40.) On July 15, 2024, Rady filed a Reply in support of their MTD. 11 (Doc. 43.) 12 The Court finds this matter suitable for determination without oral argument 13 pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, the Individual 14 Defendants’ MTD is GRANTED IN PART and DENIED IN PART, and Rady’s MTD 15 is DENIED. 16 I. FACTUAL BACKGROUND2 17 A. The Parties 18 Minor A.B. is a special needs child born in 2018. (Compl. ¶¶ 13–14.) She was born 19 with severe medical conditions, including global developmental delay, developmental 20 dysplasia of the hip, hydronephrosis (a kidney problem), vitiligo (a skin condition), and 21 urticaria (another skin condition). (Id. ¶ 14.) She has minimal language development and 22 speaks fewer than a half dozen words. (Id.) 23

24 1 The Court granted Plaintiffs’ Motion seeking dismissal of Defendants County of San 25 Diego (the “County”), Social Worker 1, and Social Worker 2 (collectively, the “County 26 Defendants”) with prejudice following settlement. (Doc. 28.)

27 2 The Court’s summary of Plaintiffs’ Complaint reflects Plaintiffs’ factual and legal 28 allegations, not conclusions of fact or law by this Court. 1 Plaintiff Martinez is the natural mother of Minor A.B., and Plaintiff Bernal is the 2 natural father of Minor A.B.. (Id. ¶ 13.) 3 Defendant Rady “is a medical center, the specific form of which is presently 4 unknown, located in the County of San Diego.” (Id. ¶ 6.) 5 Defendant Nienow was a physician contracted to conduct forensic examinations of 6 children at various locations, including Rady, Rady’s Chadwick Center for Children and 7 Families (“Chadwick”), and the County’s Polinsky Children’s Center (“Polinksy”). (Id. ¶¶ 8 3, 38, 43.) 9 Defendant Vega was a physician contracted to conduct forensic examinations of 10 children at various locations, including Rady, Chadwick, and Polinsky. (Id. ¶¶ 4, 45.) 11 Defendant Laub was a physician contracted to conduct forensic examinations of 12 children at various locations, including Rady, Chadwick, and Polinsky. (Id. ¶¶ 5, 44.) 13 B. Relevant Facts 14 1. January 6, 2022 15 On January 6, 2022, Martinez took Minor A.B. to her urologist, Dr. Kelly Anne 16 Swords, to address her hydronephrosis condition. (Id. ¶ 16.) During the visit, Martinez 17 also showed Dr. Swords a rash and hives that had developed on Minor A.B.’s neck and 18 abdomen. (Id.) Martinez informed Dr. Swords that Minor A.B. had developed the rash 19 over the preceding 24 hours and that Minor A.B. had been picking and scratching at her 20 neck. (Id.) Martinez further informed Dr. Swords that Minor A.B. had experienced hives 21 off and on since November and that Minor A.B. had an upcoming appointment with her 22 dermatologist and an allergist regarding the condition. (Id.) 23 Dr. Swords suggested that Martinez take Minor A.B. to urgent care. (Id.) Dr. 24 Swords noted no other concerns, and the medical records for this visit verified that Minor 25 A.B. had upcoming appointments with her dermatologist and allergist, scheduled for 26 January 25th and February 15th, respectively. (Id.) 27 Martinez took Minor A.B. to Rady’s urgent care/emergency department. (Id. ¶ 17.) 28 There, Martinez advised that Minor A.B. had experienced red bumps on her chest and 1 abdomen on and off since November; that the red bumps would become discolored from 2 Minor A.B. picking and scratching them; and that over the last three days, a similar rash 3 had developed on Minor A.B.’s neck. (Id.) 4 Minor A.B. was seen by Dr. Michele A. McDaniel. (Id.) Martinez showed Dr. 5 McDaniel pictures of the hives and discoloration that had been occurring since November 6 and informed Dr. McDaniel that the skin condition was itchy and would cause swelling 7 around her eye. (Id.) She informed Dr. McDaniel that Minor A.B. had upcoming 8 appointments with her dermatologist and an allergist. (Id.) She also informed Dr. 9 McDaniel that Minor A.B. had anemia. (Id.) 10 “Dr. McDaniel noted a large petechial patch along the neck, scattered patches on the 11 abdomen, and petechiae to the skin surrounding the right and left eye.” (Id.) “She took 12 photographs of her findings.” (Id.) “Dr. McDaniel noted that Minor A.B. was well 13 appearing on exam other than the bruising and rash.” (Id.) “Dr. McDaniel’s differential 14 diagnosis was 1) urticaria and patient scratching so hard as to cause bruising; 2) 15 thrombocytopenias; 3) abnormal coagulopathy; and 4) ‘inflicted injury such as 16 strangulation.’” (Id.) 17 “Dr. McDaniel [also] ordered blood work, a skeletal survey, and consults with the 18 hospital social worker and ‘CPT,’ Rady’s Child Protection Team ….” (Id.) “The skeletal 19 survey, undertaken shortly after Dr. McDaniel’s exam, was negative for fractures. The 20 labs were significant for anemia … .” (Id. ¶ 18.) 21 Defendant Nienow was the “on call” child abuse pediatrician for Rady at the time. 22 (Id. ¶ 19.) Based on a handful of photographs taken in the emergency room, Nienow 23 concluded that this was a “strangulation event.” (Id.) Nienow also determined that the 24 bruising seen on Minor A.B.’s abdomen was “highly suspicious for a human bite mark.” 25 (Id.) Nienow concluded, “[i]f [Minor A.B.] were to be returned to the environment in 26 which her injuries were sustained without identification and removal of the perpetrator[,] 27 it would place her at extreme risk of ongoing and potentially escalating forms of 28 maltreatment.” (Id.) Nienow advised that an immediate report should be made to law 1 enforcement and child welfare services, and that Minor A.B. should be seen at Chadwick 2 the following day for a full forensic examination. (Id.) 3 “Nienow did not go to the emergency room, examine [Minor] A.B., speak with 4 [Martinez], or review any of [Minor] A.B.’s extensive past history.” (Id. (emphasis in 5 original).) “Nor did Defendant Dr. Nienow speak with Dr. Swords or Dr. George K. 6 Hightower, [Minor] A.B.’s dermatologist who had been treating her skin conditions.” (Id. 7 (emphasis in original).) 8 Nienow then informed the County of San Diego’s social workers that the marks on 9 Minor A.B.’s neck were caused by pressure being applied and blood vessels popping—i.e., 10 strangulation—and that strangulation was the only explanation for the findings. (Id. ¶ 20 11 (emphasis in original).) Based upon Nienow’s opinion, the social workers removed Minor 12 A.B. from the care and custody of her parents and transported her to Polinsky. (Id. ¶ 21.) 13 2. January 7, 2022 14 On January 7, 2022, Minor A.B. was taken to Chadwick, where she was seen by 15 Defendant Vega.3 (Id. ¶ 22.) Martinez and Bernal were not notified of this examination, 16 were not given the opportunity to be present at this examination, did not consent to this 17 examination, and there was no court order authorizing the examination. (Id.) Vega noted 18 in her evaluation that Minor A.B.’s past medical history was obtained through a review of 19 Minor A.B.’s medical records as there was no parent present at the examination. (Id. ¶ 23.) 20 Plaintiffs allege that Vega, who is a “Certified Bilingual Provider Spanish,” compounded 21 the County’s failure to give Minor A.B.’s parents notice by failing to call Martinez, who 22 was available to provide A.B.’s medical history by phone or to be physically present at a 23 moment’s notice. (Id.) Defendant Laub “admitted to a language barrier with respect to 24 getting a history from [Martinez]. There was [] no evidence that [] Laub had reviewed any 25 of [Minor] A.B.’s medical history.” (Id. ¶ 33.) 26 27 3 It appears that Minor A.B. was also seen by Defendant Laub on this date; however, 28 Plaintiffs’ Complaint is not explicit. 1 “A complete examination was performed, including an examination to rule out 2 sexual abuse.” (Id. ¶ 25.) “The examination made the same findings regarding skin 3 condition that Dr. McDaniel had made the day before.” (Id.) Defendant Laub concluded, 4 after reviewing labs and tests available, that “the child’s physical exam is consistent with 5 a strangulation event” and that she could “not rule out blunt force trauma as well.” (Id.) 6 Defendants Vega and Laub stated in their report that the location and pattern of Minor 7 A.B.’s “injuries” were “indicative of a strangulation event” and that the location of the 8 bruises on Minor A.B.’s abdomen were “highly concerning for non-accidental trauma.” 9 (Id.) Vega and Laub also concluded that, if Minor A.B. were “returned to the environment 10 in which her injuries were sustained, it would place her at extreme risk of further 11 maltreatment and potentially death.” (Id.) “There is no evidence in the record of the 12 examination that either Vega or Laub reviewed any of Minor A.B.’s past medical history 13 or spoke with Dr. Swords or Dr. Hightower.” (Id.) 14 “Vega and Laub [also] noted that A.B. also had a fever and was tachycardic, and 15 recommended that urine be collected at Polinsky.” (Id.) Minor A.B. returned to Polinsky, 16 where urine was collected and sent to the lab. (Id. ¶ 27.) Martinez and Bernal were also 17 not notified of this examination, were not given the opportunity to be present at this 18 examination, did not consent to this examination, and there was no court order authorizing 19 the examination. (Id.) 20 3. January 10, 2022 21 On January 10, 2022, the County social workers submitted a Detention Report to the 22 Juvenile Court. (Id. ¶ 31.) Attached to the Detention Report was Defendant Nienow’s 23 report, which clearly implied that she had examined Minor A.B. on January 6, 2022 and/or 24 January 7, 2022 even though Nienow did not examine Minor A.B., did not review Minor 25 A.B.’s medical history, did not speak with Minor A.B.’s parents, and did not speak to 26 Minor A.B.’s medical providers. (Id.) Nienow’s report was based on her review of 27 photographs. (Id.) 28 1 Based on Nienow’s knowingly false report, the County social workers “opined that 2 ‘the evidence at this time overwhelmingly supports the conclusion [Minor A.B.] was 3 strangled to the point that blood pooled in her head and caused capillaries to burst,’ and 4 that ‘an individual intentionally strangled the child in an act of physical abuse.’” (Id.) The 5 County social workers also advised that Minor A.B. “‘sustained bruising to her throat and 6 face diagnostic [sic] of strangulation,’ and that ‘[t]he [a]gency is worried that if a member 7 of [Minor A.B.’s] household continues to strangle the child, the child may be severely 8 injured to include further bruising, broken bones, brain injury or death.’” (Id.) The social 9 workers also “stated that ‘[the] [c]aregiver’s explanation for the injury to the child is 10 questionable or inconsistent with the type of injury, and the nature of the injury suggests 11 the child’s safety may be of immediate concern.’” (Id.) The social workers recommended 12 that Minor A.B. continue to be detained. (Id.) The social workers’ statements and 13 recommendation were based entirely on Nienow’s report. (Id.) 14 4. January 19, 2022 15 On January 19, 2022, Minor A.B. saw her dermatologist, Dr. George K. Hightower, 16 for the appointment that had been scheduled at the time of her January 6, 2022 emergency 17 room visit. (Id. ¶ 32.) Dr. Hightower diagnosed Minor A.B. with urticaria and noted that 18 “bruising can occur following urticarial lesions if [the] site is subject to frequent scratching 19 or rubbing by the child.” (Id.) 20 5. February 1, 2022 21 On February 1, 2022, the County social workers submitted an additional report to 22 the Juvenile Court, which summarized their discussion with Dr. Hightower. (Id. ¶ 33.) 23 They also reported a discussion with Minor A.B.’s primary care physician, Dr. Rylee Scott, 24 who opined that the marks on Minor A.B.’s neck and the petechiae were “consistent with 25 a new location and exacerbation of her preexisting rash” and “not traumatic bruising.” (Id.) 26 Nevertheless, the County social workers advised the Juvenile Court that they wished to 27 continue to detain Minor A.B. (Id.) 28 1 6. February 15, 2022 2 On February 15, 2022, the County social workers submitted an Addendum Report 3 to the Juvenile Court. (Id. ¶ 34.) The social workers reported that Dr. Swords had no 4 concerns about Martinez, that it was Martinez who pointed out the lesions on Minor A.B.’s 5 neck, that Minor A.B. was scratching and itching at the lesions on her neck, and that she 6 believed it might be some type of blood disorder, which is why she sent Martinez and 7 Minor A.B. to the emergency room. (Id.) The social workers also reported that Dr. 8 Hightower noted a history of petechiae during fevers. (Id.) The social workers further 9 reported that Defendant Laub refused to retreat from her strangulation theory despite 10 alternative explanations. (Id.) The social workers recommended that the petition be 11 dismissed. Despite their discretion to return Minor A.B. to the care and custody of her 12 parents, the social workers did not return Minor A.B. to the care and custody of her parents 13 on this date. (Id.) 14 7. March 10, 2022 15 On March 10, 2022, the Juvenile Court conducted a hearing (id. ¶ 35), dismissed the 16 petition against Martinez and Bernal, and terminated its jurisdiction over Minor A.B (id. ¶ 17 36). “[T]he [c]ourt instructed [r]evenue and [r]ecovery that they were not to collect any 18 reimbursable costs from the parents.” (Id.) Despite this order, the County continues to 19 send delinquency notices to Martinez and Bernal in an attempt to collect money arising 20 from the dependency matter. (Id. ¶ 37.) 21 C. Monell Allegations4 22 Plaintiffs allege that Chadwick is a program, service, and subdivision of Rady. (Id. 23 ¶ 38.) Rady, Chadwick, and the Chadwick team work in collaboration with the County 24 and its Health and Human Services Agency (“HHSA”) to investigate suspected child abuse 25 and neglect. (Id. ¶¶ 38, 84.) Plaintiffs allege that Rady operates, manages, and supervises 26 27 4 Monell refers to the United States Supreme Court’s decision in Monell v. Dept. of Soc. 28 Serv. of N.Y., 436 U.S. 658, 691 (1978). 1 the Chadwick team, which includes law enforcement personnel, HHSA personnel, and 2 personnel from the “prosecution.” (Id. ¶ 39.) 3 Rady and its Chadwick team routinely collaborate with HHSA, law enforcement, 4 and the Courts. (Id. ¶ 40.) Rady and its Chadwick team initiate and authorize forensic 5 interviews and medical examinations, including sexual abuse examinations; acute sexual 6 assault examinations with evidence collection; physical abuse examinations; examinations 7 of neglect, malnutrition, and other concerns; and non-abuse related genital exams. (Id.) 8 Rady, through its team at Chadwick, have conducted as many as 769 forensic medical 9 exams at the behest of the HHSA without first obtaining court approval or authorization. 10 (Id. ¶ 41.) 11 “In short, Rady is regularly engaged by the County for its investigatory and ‘expert’ 12 services, and regularly cooperates in joint action with HHSA to investigate allegations of 13 child abuse—which is categorically a traditional governmental function”—pursuant to the 14 terms of a contract or other similar such agreement with the County. (Id. ¶¶ 42, 84.) Rady 15 and the Chadwick team “regularly and systematically perform non-consensual and 16 unwarranted investigatory medical services in collaboration with the County, at the behest 17 of, and direction of, the County and its workers.” (Id. ¶ 84.) 18 Plaintiffs allege that Rady established or followed policies that caused the 19 constitutional violations that are the subject of this Complaint, including: 20 1. “The policy of conducting medical procedures, including examinations, on children removed from their parents without exigent circumstances, court 21 order or warrant, or parental consent; and without notice to or the presence of 22 the children’s parents, in violation of the Constitutional rights of children and their parents[.]” (Id. ¶ 85a.) 23

24 2. “The policy of providing opinions by its medical ‘experts’ to the County, knowing they will be used to justify the detention and/or continued 25 detention of children from the care and custody of their parents, despite 26 knowledge and information that the opinions of such ‘experts’ are based on speculation, insufficient information, and faulty methodology. Plaintiffs are 27 informed and believe, and based thereon allege, that the opinions of these 28 child abuse “experts” are routinely questioned by courts, and, in several 1 instances, courts have stated that the opinions are not credible. Defendant Rady has faced legal action by other families whose lives were torn [sic] as a 2 result of opinions rendered by its staff members.” (Id. ¶ 85b.) 3 3. “By acting with deliberate indifference in implementing a policy of 4 inadequate training, and/or by failing to train its officers, agents and 5 employees, in providing the Constitutional protections guaranteed to individuals, including those under the First, Fourth, and Fourteenth 6 Amendments, when performing actions related to child abuse and neglect, and 7 dependency type proceedings.” (Id. ¶ 85c.)

8 4 “The policy of acting with deliberate indifference in failing to correct 9 the wrongful conduct of employees and agents failing to provide the Constitutional protections guaranteed to individuals, including those under the 10 First, Fourth, and Fourteenth Amendments, when performing actions related 11 to child abuse and neglect, and dependency type proceedings.” (Id. ¶ 85d.)

12 Plaintiffs allege that Defendant Nienow is an officer, agent, or employee of Rady or 13 Chadwick, working as the Chadwick Medical Clinical Director on behalf of Rady pursuant 14 to its agreement with the County. (Id. ¶ 43.) Likewise, Plaintiffs allege that Defendants 15 Vega and Laub are officers, agents, or employees of Rady or Chadwick working on behalf 16 of Rady pursuant to its agreement with the County. (Id. ¶¶ 44–45.) 17 Defendants Nienow, Laub, and Vega acted as liaisons between Rady and the County 18 and its agents. (Id. ¶ 48.) Nienow, Laub, and Vega acted as employees or agents of Rady, 19 and in accordance and conformance with the regularly established customs and practices 20 of both Rady and the County. (Id.) Defendants Nienow, Laub, and Vega acted under color 21 of law in that they were investigating suspected child abuse at the behest of and in 22 collaboration with the County. (Id.) 23 D. Claims of Relief 24 In their Complaint, Plaintiffs assert three claims of relief against the Individual 25 Defendants. Plaintiffs’ third claim is for violations of Plaintiffs’ First and Fourteenth 26 Amendment rights to familial association and to be free from judicial deception pursuant 27 to 42 U.S.C. §§ 1983, 1985. (Compl. at 1, 18–21.) Plaintiffs’ fourth claim is for violations 28 1 of Plaintiffs’ First, Fourth, and Fourteenth Amendment rights to be free from unlawful 2 medical procedures pursuant to §§ 1983, 1985. (Id. at 1, 21–22.) Plaintiffs’ seventh claim 3 is for injunctive relief. (Id. at 2, 28–29.) 4 Plaintiffs also assert two claims for relief against Rady. Plaintiffs’ sixth claim is for 5 Monell-related claims pursuant to 42 U.S.C. § 1983. (Id. at 1, 25–28.) Plaintiffs’ seventh 6 claim is for injunctive relief. (Id. at 2, 28–29.) 7 II. LEGAL STANDARD 8 A. Federal Rule of Civil Procedure 8(a)(2) 9 Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and 10 plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. Civ. P. 11 8(a)(2). The primary purpose of Rule 8(a)(2) is “to give the defendant fair notice of the 12 factual basis of the claim[.]” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 13 841 (9th Cir. 2007). Therefore, “[a] plaintiff suing multiple defendants ‘must allege the 14 basis of his claim against each defendant to satisfy [Rule] 8(a)(2) … .’” Altman v. PNC 15 Mortg., 850 F. Supp. 2d 1057, 1067–68 (E.D. Cal. 2012) (quoting Gauvin v. Trombatore, 16 682 F. Supp. 1067, 1071 (N.D. Cal. 1988)); see also Holtegaard v. Howroyd-Wright Emp. 17 Agency, Inc., Case No. EDCV 20-509 JGB (KKx), 2020 WL 6051328, at *3 (C.D. Cal. 18 Aug. 11, 2020) (“As a general matter, Rule 8(a) requires a plaintiff to differentiate 19 allegations against multiple defendants.”) (citation omitted). 20 B. Federal Rule of Civil Procedure 12(b)(6) 21 Pursuant to Rule 12(b)(6), an action may be dismissed for failure to allege “enough 22 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 23 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 24 content that allows the court to draw the reasonable inference that the defendant is liable 25 for the misconduct alleged. The plausibility standard is not akin to a 26 probability requirement, but it asks for more than a sheer possibility that a defendant acted 27 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and 28 citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] 1 factual allegations in the complaint as true and construe[s] the pleadings in the light most 2 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 3 1025, 1031 (9th Cir. 2008). 4 However, the Court is “not bound to accept as true a legal conclusion couched as a 5 factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the 6 Court “required to accept as true allegations that contradict exhibits attached to the 7 Complaint or matters properly subject to judicial notice, or allegations that are merely 8 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. 9 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive 10 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from 11 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 12 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation marks omitted). 13 When a Rule 12(b)(6) motion is granted, “a district court should grant leave to amend 14 even if no request to amend the pleading was made, unless it determines that the pleading 15 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. 16 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 17 C. Federal Rule of Civil Procedure 9(b) 18 Rule 9(b) “requires that, when fraud is alleged, ‘a party must state with particularity 19 the circumstances constituting fraud … .’” Kearns v. Ford Motor Co., 567 F.3d 1120, 20 1124 (9th Cir. 2009) (quoting Fed. R. Civ. P. 9(b)). A pleading satisfies Rule 9(b) if it 21 identifies “the who, what, when, where, and how” of the misconduct charged. Vess v. 22 Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Rule 9(b) also requires that 23 the complaint “set forth an explanation as to why the statement or omission complained of 24 was false or misleading.” Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir. 1999) 25 (citation and quotation omitted). “To comply with Rule 9(b), allegations of fraud must be 26 specific enough to give defendants notice of the particular misconduct which is alleged to 27 constitute the fraud charged so that they can defend against the charge and not just deny 28 that they have done anything wrong.” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th 1 Cir. 2001) (internal quotation marks and citations omitted). “Any averments which do not 2 meet that standard should be ‘disregarded,’ or ‘stripped’ from the claim for failure to satisfy 3 Rule 9(b).” Kearns, 567 F.3d at 1124. 4 III. DISCUSSION 5 A. The Individual Defendants’ MTD 6 “Title 42 U.S.C. § 1983 provides a cause of action for the ‘deprivation of any rights, 7 privileges, or immunities secured by the Constitution and laws’ of the United States. To 8 state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right 9 secured by the Constitution or laws of the United States was violated, and (2) that the 10 alleged violation was committed by a person acting under the color of State law.” Long v. 11 Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 12 42, 48 (1988)). As the Parties do not seem to dispute that the Individual Defendants were 13 “acting under the color of state law,” the Court will focus its analysis on whether Plaintiffs 14 have adequately alleged “a right secured by the Constitution or laws of the United States 15 was violated.” Id. 16 1. Third Cause of Action—Familial Association and Judicial Deception 17 “The liberty interest at issue in this case—the interest of parents in the care, custody, 18 and control of their children—is perhaps the oldest of the fundamental liberty interests 19 recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The Ninth Circuit 20 “has long recognized this right for parents and children under the Fourth and Fourteenth 21 Amendments.” David v. Kaulukukui, 38 F.4th 792, 799 (9th Cir. 2022). “For parents, the 22 right to familial association is generally grounded in the Fourteenth Amendment’s Due 23 Process Clause, while claims brought by children are evaluated under the … Fourth 24 Amendment … .” Id. (citation omitted). 25 “The First Amendment also protects ‘family relationships, that presuppose ‘deep 26 attachments and commitments to the necessarily few other individuals with whom one 27 shares not only a special community of thoughts, experiences, and beliefs but also 28 distinctively personal aspects of one’s life.’” Keates v. Koile, 883 F.3d 1228, 1236 (9th 1 Cir. 2018) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001)). Put 2 simply, the First Amendment protects family relationships. Bd. of Directors of Rotary Int’l 3 v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987). “[T]he Fourteenth, First, and Fourth 4 Amendments [together] provide a guarantee ‘that parents will not be separated from their 5 children without due process of law except in emergencies.’” Keates, 883 F.3d at 1236 6 (quoting Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107– 7 09 (9th Cir. 2001)). 8 In addition to the right to familial association guaranteed by the First, Fourth, and 9 Fourteenth Amendments, the Ninth Circuit recognizes “a constitutional right under the Due 10 Process Clause of the Fourteenth Amendment to be free from judicial deception … in the 11 context of civil child custody cases.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 12 1146 (9th Cir. 2021) (citations omitted); see also Costanich v. Dep’t of Soc. and Health 13 Servs., 627 F.3d 1101,1108 (9th Cir. 2010) (“[D]eliberately fabricating evidence in civil 14 child abuse proceedings violates the Due Process clause of the Fourteenth Amendment 15 when a liberty or property interest is at stake ... .”). 16 “‘To successfully allege a violation of the constitutional right to be free from judicial 17 deception, [§ 1983 plaintiffs] must make out a claim that includes (1) a misrepresentation 18 or omission (2) made deliberately or with a reckless disregard for the truth, that was (3) 19 material to the judicial decision.” Benavidez, 993 F.3d at 1147 (citation omitted). 20 Although not explicitly stated, the Ninth Circuit appears to require § 1983 plaintiffs to 21 plead judicial deception with particularity pursuant to Federal Rule of Civil Procedure 9(b). 22 See id. at 1145–49 (applying the Rule 9(b) particularity standard and noting that “[the 23 plaintiffs] had to allege judicial deception sufficient to meet the constitutional standard, if 24 not the heightened pleading standard of Rule 9(b), to overcome the County’s motion to 25 dismiss under Rule 12(b)(6).”)); Nick Castaneda, et al., v. County of San Bernardino, et 26 al., Case No. 5:23-cv-02246-FWS-JDE, 2024 WL 4834286, at *6 (C.D. Cal. Jan. 17, 2024) 27 (“To comply with Federal Rule of Civil Procedure 9(b), a judicial deception claim must be 28 1 stated ‘with particularity’ by alleging ‘the who, what, when, and where of the judicial 2 deception.’”) (citation omitted). 3 The Individual Defendants assert, and Plaintiffs do not dispute, that “Plaintiffs’ third 4 cause of action is a § 1983 claim for violation of their right to be free from judicial 5 deception under the Due Process Clause of the Fourteenth Amendment.” (Doc. 38-1 at 6 11.) However, the Individual Defendants do not address Plaintiffs’ claims for violations 7 of the right to familial association under the First, Fourth, and Fourteenth Amendments 8 more broadly. Accordingly, Plaintiffs’ familial association claims survive the Individual 9 Defendants’ MTD, and the Court turns to Plaintiffs’ claims regarding judicial deception. 10 Regarding Plaintiffs’ judicial deception claims, the Individual Defendants argue that 11 “nothing in [Plaintiffs’] [C]omplaint plausibly alleges that [] Nienow, Vega, or Laub 12 intended to deceive the court or acted with reckless indifference to the truth, such that any 13 mistakes or incomplete statements in judicial filings could rise to the level of clear 14 constitutional violations.” (Doc. 38-1 at 13.) They assert that “[t]he allegations that [] 15 Nienow, [] Vega, or [] Laub did not contact [Minor] A.B.’s other medical providers” 16 amount to negligence at most. (Id.) The Individual Defendants also argue that Plaintiffs’ 17 Complaint fails to allege that they, as opposed to the County, failed to provide exculpatory 18 evidence. (Id. at 14.) Regarding Defendant Vega only, the Individual Defendants assert 19 that she never submitted any documents to the Juvenile Court. (Id.) Lastly, the Individual 20 Defendants argue that Plaintiffs’ Complaint does not allege that the Individual Defendants 21 made the decision to remove Minor A.B. from her parents’ care and custody. (Id. at 15.) 22 In their Opposition to the Individual Defendants’ MTD, Plaintiffs respond that they 23 have sufficiently alleged their judicial deception claims against the Individual Defendants. 24 (Doc. 41 at 10–13.) Specifically, Plaintiffs argue that the Individual Defendants and the 25 County social workers were “joint actors” when submitting information to the Juvenile 26 Court. (Id. at 12.) Plaintiffs assert that the Individual Defendants omitted critical 27 information from their reports, e.g., that Defendant Nienow did not examine Minor A.B., 28 speak with Martinez, review Minor A.B.’s past medical history, or speak with Minor A.B.’s 1 regular physicians. (Id.) Plaintiffs conclude that the Individual Defendants “submitted 2 knowingly false reports to the County social workers with the knowledge that such reports 3 would be submitted to the Juvenile Court [for] the purpose [of removing Minor] A.B. from 4 the care and custody of her parents.” (Id. at 13.) 5 Because “[a] plaintiff suing multiple defendants ‘must allege the basis of his claim 6 against each defendant to satisfy [Rule] 8(a)(2)[,]’” Altman v. PNC Mortg., 850 F. Supp. 7 2d 1057, 1067–68 (E.D. Cal. 2012) (quoting Gauvin, 682 F.Supp. at 1071), the Court 8 addresses each of the Individual Defendants in turn. 9 a) Nienow 10 As stated above, to plead judicial deception, “[Plaintiffs] must make out a claim that 11 includes (1) a misrepresentation or omission (2) made deliberately or with a reckless 12 disregard for the truth, that was (3) material to the judicial decision.” Benavidez, 993 F.3d 13 at 1147. Regarding the first element, Plaintiffs allege that Defendant Nienow’s report 14 falsely implied that she had examined Minor A.B. on January 6, 2022 or January 7, 2022 15 in her report. (Compl. ¶ 31.) Regarding the second element, Plaintiffs allege Nienow 16 opined that Minor A.B. should be removed from her parents’ care and custody even though 17 Nienow did not examine Minor A.B., did not speak with Martinez, did not speak with Dr. 18 Swords or Dr. Hightower, and did not review Minor A.B.’s extensive past medical history. 19 (Id. ¶ 19.) Regarding the last element, Plaintiffs allege that Nienow’s report was attached 20 to the Detention Report, which was submitted to the Juvenile Court on January 10, 2022, 21 and that the County social workers’ statements and recommendations to the Juvenile Court 22 were based solely on Nienow’s report. (Id. ¶ 31.) Therefore, even applying the more 23 stringent particularity standard, see Kearns, 567 F.3d at 1124 (quoting Fed. R. Civ. P. 9(b)), 24 the Court finds that Plaintiffs have adequately stated a claim against Defendant Nienow for 25 judicial deception. Plaintiffs have alleged the “the who, what, when, where, and how” of 26 the alleged misconduct in way sufficient to give Defendant Nienow notice of the particular 27 conduct allegedly constituting judicial deception. Vess, 317 F.3d at 1106; see also Bly- 28 Magee, 236 F.3d at 1019. 1 b) Laub 2 As to Defendant Laub, Plaintiffs have not alleged any specific misrepresentation or 3 omission by Defendant Laub. Regarding the second element, Plaintiffs allege that 4 Defendant Laub admitted to a language barrier with respect to getting Minor A.B.’s 5 medical history from Martinez and that there was no evidence that Laub had reviewed any 6 of Minor A.B.’s medical history. (Compl. ¶ 33.) Nevertheless, Laub concluded that “the 7 child’s physical exam is consistent with a strangulation event” and that she could “not rule 8 out blunt force trauma as well.” (Id. ¶ 25.) Therefore, Plaintiffs have plausibly alleged 9 that Laub’s conduct demonstrated a reckless disregard for the truth. See Benavidez, 993 10 F.3d at 1147. 11 Regarding the third element, Plaintiffs allege that, on February 15, 2022, the County 12 social workers reported that Laub had not retracted her strangulation theory despite 13 alternative explanations. (Id. ¶ 34.) Nevertheless, the social workers recommended that 14 the petition be dismissed, and the Juvenile Court gave the social workers discretion to 15 return Minor A.B. to her parents. (Id.) Because Laub’s strangulation theory did not sway 16 the social workers’ recommendation or the Juvenile Court’s decision on this date, the Court 17 cannot find that Laub’s opinion was “material to the judicial decision.” Benavidez, 993 18 F.3d at 1147. As Plaintiffs have not adequately pled the first and third elements of a judicial 19 deception claim, Plaintiffs’ judicial deception claim against Defendant Laub must be 20 DISMISSED. 21 c) Vega 22 In contrast to Defendants Nienow and Laub, Plaintiffs do not allege that Defendant 23 Vega’s opinions or reports were ever submitted to the Juvenile Court. Without any 24 allegations connecting Vega’s opinions or reports to any judicial decision, the third element 25 is not sufficiently pled. See Benavidez, 993 F.3d at 1147. Additionally, Plaintiffs allege 26 that Vega examined Minor A.B. and reviewed Minor A.B.’a medical records. (Compl. ¶¶ 27 22–23.) While Vega may not have spoken with Minor A.B.’s parents, the Court cannot 28 identify any misrepresentation or omission “made deliberately or with a reckless disregard 1 for the truth” when Vega examined Minor A.B. herself and reviewed the available medical 2 records. Benavidez, 993 F.3d at 1147. Accordingly, the Court finds that Plaintiffs have 3 failed to state a claim for judicial deception against Defendant Vega, and Plaintiffs’ judicial 4 deception claim against Vega must be DISMISSED. 5 d) Qualified Immunity 6 “The doctrine of qualified immunity protects government officials ‘from liability for 7 civil damages insofar as their conduct does not violate clearly established statutory or 8 constitutional rights of which a reasonable person would have known.’” Pearson v. 9 Callahan, 555 U.S. 223, 231 (2009). There is a “two-step sequence for resolving 10 government officials’ qualified immunity claims. First, a court must decide whether the 11 facts that a plaintiff has alleged … or shown … make out a violation of a constitutional 12 right. Second, if the plaintiff has satisfied this first step, the court must decide whether the 13 right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. 14 at 232 (citations omitted). Having adequately pled a constitutional claim for judicial 15 deception against Defendant Nienow (see Section III.A.1.a), the question is whether the 16 right at issue was “clearly established.” Id. 17 The Individual Defendants argue that Nienow is entitled to qualified immunity 18 because, as a mandatory reporter, she was required to report any reasonable suspicion of 19 child abuse to the County. (Doc. 38-1 at 13–15 (citing Cal. Penal Code §§ 11165.7(a)(21), 20 11165.9, 11166, 11169.) The Individual Defendants do not appear to dispute that there is 21 a clearly established right to be free of judicial deception; they merely contend that 22 Nienow’s conduct was lawful under state law. However, Plaintiffs do not wish to hold 23 Nienow civilly liable for merely reporting suspicions of child abuse; Plaintiffs seek to hold 24 Nienow liable for the deceptive nature of her report. Additionally, “the law of the Ninth 25 Circuit is clear that ‘immunity under § 1983 is governed by federal law; state law cannot 26 provide immunity from suit for federal civil rights violations.’” Smith v. Harrington, No. 27 C 12-03533 LB, 2013 WL 132465, at *6 (N.D. Cal. Jan. 9, 2013) (quoting Wallis v. 28 Spencer, 202 F.3d 1126, 1144 (9th Cir.2000)); see also Martinez v. California, 444 U.S. 1 277, 284, n.8 (1980) (“Conduct by persons acting under color of state law which is 2 wrongful under 42 U.S.C. § 1983 ... cannot be immunized by state law.”). 3 Therefore, at this stage, the Court finds that Plaintiffs’ allegations are sufficient to 4 overcome qualified immunity. See e.g., Moortgat v. Cnty. of San Joaquin, No. 09-cv- 5 02187-JAM-EFB, 2010 WL 3582430, at *4–5 (E.D. Cal. Sept. 9, 2010) (findings that 6 social workers are not entitled to qualified immunity as mandated reporters); Jones v. Cnty. 7 of Los Angeles, Case No.: CV 11-02851 SJO (JCGx), 2011 WL 13152514, at *6 (C.D. Cal. 8 Aug. 26, 2011) (confirming that the “Ninth Circuit has yet to address the issue of California 9 physician’s immunity under the federal qualified immunity standard for reporting 10 suspected child abuse” and noting “[w]here neither the Ninth Circuit nor a sister district 11 court has extended such immunities to physicians, the Court is disinclined to do so, 12 especially at the motion to dismiss stage.”). Plaintiffs’ judicial deception claim against 13 Defendant Nienow may proceed. 14 2. Fourth Cause of Action—Medical Examinations 15 “The right to family association includes the right of parents to make important 16 medical decisions for their children, and of children to have those decisions made by their 17 parents rather than the state.” Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000) 18 (citing Parham v. J.R., 442 U.S. 584, 602 (1979) and Calabretta v. Floyd, 189 F.3d 808, 19 818 (9th Cir.1999)). “Moreover, parents have a right arising from the liberty interest in 20 family association to be with their children while they are receiving medical attention (or 21 to be in a waiting room or other nearby area if there is a valid reason for excluding them 22 while all or a part of the medical procedure is being conducted). Likewise, children have 23 a corresponding right to the love, comfort, and reassurance of their parents while they are 24 undergoing medical procedures, including examinations—particularly those, such as here, 25 that are invasive or upsetting.” Id. at 1142 (footnote omitted). “[T]he ‘children’s right to 26 their [parents’] comfort and their [parents’] right to provide such comfort [are] at their 27 apex’ where the medical examination included inspection of … the child’s genitals.” 28 Benavidez, 993 F.3d at 1150. 1 For this reason, in Wallis, the Ninth Circuit held that the “Constitution assures 2 parents that, in the absence of parental consent, physical examinations of their child may 3 not be undertaken for investigative purposes at the behest of state officials unless a judicial 4 officer has determined, upon notice to the parents, and an opportunity to be heard, that 5 grounds for such an examination exist and that the administration of the procedure is 6 reasonable under all the circumstances.” Wallis, 202 F.3d at 1142 (quotation omitted). 7 The Ninth Circuit elaborated that “[b]arring a reasonable concern that material physical 8 evidence might dissipate, or that some urgent medical problem exists requiring immediate 9 attention, the state is required to notify parents and to obtain judicial approval before 10 children are subjected to investigatory physical examinations.” Id. (quotation omitted). 11 Following Wallis, the Ninth Circuit concluded “that the County violates parents’ 12 Fourteenth Amendment substantive due process rights when it performs … medical 13 examinations [at Polinsky] without notifying the parents about the examinations and 14 without obtaining either the parents’ consent or judicial authorization.” Mann v. Cnty. of 15 San Diego, 907 F.3d 1154, 1160–61 (9th Cir. 2018) (emphasis added). The Ninth Circuit 16 also concluded that “children possess a Fourth Amendment right to ‘be secure in their 17 persons ... against unreasonable searches and seizures.’” Id. at 1164 (citing U.S. Const. 18 amend. IV) (finding that “Polinsky medical examinations … are well within the ambit of 19 the Fourth Amendment”). Relatedly, “[c]hildren removed from their parents’ custody 20 [also] have a legitimate expectation of privacy in not being subjected to medical 21 examinations without their parents’ notice and consent.” Id. at 1165 (citations omitted). 22 In sum, medical examinations in this context violate parents’ Fourteenth 23 Amendment substantive due process rights and children’s Fourth Amendment rights 24 against unreasonable searches and seizures. See Benavidez, 993 F.3d at 1150. For this 25 reason, the Ninth Circuit has found that “the County is required to: (1) notify the parents 26 of a medical examination of their children; (2) obtain parental consent or a court order in 27 advance of the medical examination; and (3) permit the parent to be present at the 28 examination.” Id. 1 In their MTD, the Individual Defendants argue that Defendant Nienow could not 2 have violated Plaintiffs’ constitutional rights pertaining to medical examinations because 3 she never examined Minor A.B. herself. (Doc. 38-1 at 16–17.) The Individual Defendants 4 also argue that Defendants Vega and Laub are entitled to qualified immunity because 5 “Plaintiffs do not identify any clearly established law that indicates a medical professional 6 who suspects child abuse must obtain the consent of persons who might be the abusers to 7 perform such an examination.” (Id. at 17.) 8 In their Opposition to the Individual Defendants’ MTD, Plaintiffs assert that the 9 Individual Defendants collaborated and jointly acted with the County in recommending 10 and conducting the challenged medical examinations. (Doc. 41 at 14.) Plaintiffs assert 11 that, in her report, Defendant Nienow advised the County that Minor A.B. should be seen 12 at Chadwick for a full forensic examination. (Id. at 15.) Plaintiffs then contend that 13 Defendant Vega examined Minor A.B. on January 7, 2022, even though Martinez and 14 Bernal did not consent to this examination, were not given notice of the examination, were 15 not given the opportunity to be present at the examination, and there was no court order 16 authorizing the examination. (Id.) Plaintiffs do not present any arguments regarding 17 Defendant Laub. 18 As a preliminary matter, and as stated above (see Section III.A), the Individual 19 Defendants do not appear to dispute Plaintiffs’ assertion that that the doctors collaborated 20 and acted jointly with the County in examining Minor A.B.. (See Doc. 41 at 13–15.) 21 Accordingly, at this stage, the Court finds that Plaintiffs have sufficiently alleged that the 22 Individual Defendants acted under the color of state law. See Dennis v. Sparks, 449 U.S. 23 24, 27–28 (1980) (“Private persons, jointly engaged with state officials in the challenged 24 action, are acting see ‘under color’ of law for purposes of § 1983 actions.”). 25 The Court now turns to whether the Individual Defendants violated “a right secured 26 by the Constitution or laws of the United States[.]” Long, 442 F.3d at 1185. Because “[a] 27 plaintiff suing multiple defendants ‘must allege the basis of his claim against each 28 defendant to satisfy [Rule] 8(a)(2)[,]’” Altman, 850 F. Supp. 2d at 1067–68 (quoting 1 Gauvin, 682 F. Supp. at 1071), the Court addresses each of the Individual Defendants in 2 turn. 3 a) Nienow 4 Plaintiffs allege that Defendant Nienow examined photographs taken in the 5 emergency room and, based on those photographs, advised the County social workers that 6 Minor A.B. should be subjected to a full forensic examination. (Compl. ¶ 19.) Upon 7 Nienow’s recommendation, Minor A.B. was removed from her parents’ custody and care 8 and transported to Polinsky. (Id. ¶ 21.) The next day, Minor A.B. was examined by 9 Defendants Vega and Laub. (Id. ¶¶ 22–27.) Martinez and Bernal were not notified of this 10 examination, were not given the opportunity to be present at this examination, did not 11 consent to this examination, and there was no court order authorizing the examination. (Id. 12 ¶ 22.) 13 Despite the Individual Defendants’ contention that Defendant Nienow could not 14 have violated Plaintiffs’ constitutional rights pertaining to medical examinations because 15 she never examined Minor A.B. (see Doc. 38-1 at 16), the Court finds that Plaintiffs’ 16 allegations are sufficient to withstand the Individual Defendants’ MTD. The Individual 17 Defendants’ have not cited any authority suggesting that only the examining physicians 18 can be held liable for unlawful medical examination. Further, while Nienow may not have 19 examined Minor A.B. herself, it is upon her recommendation that the County subjected 20 Minor A.B. to a full forensic examination. As a physician acting under the color of state 21 law at the time of the examination, Nienow should have ensured that (1) Minor A.B.’s 22 parents were notified of the medical examination; (2) Minor A.B.’s parents consented, or 23 a court order was obtained, in advance of the medical examination; and (3) Minor A.B.’s 24 parents were permitted to be present at the examination. See Benavidez, 993 F.3d at 1150. 25 Thus, “accept[ing] [the] factual allegations in the [C]omplaint as true and constru[ing] the 26 pleadings in the light most favorable to [Plaintiffs,]” Manzarek, 519 F.3d at 1031, the Court 27 finds that Plaintiffs’ allegations are sufficient to withstand the Individual Defendants’ 28 MTD. 1 b) Vega and Laub 2 Plaintiffs allege that Defendants Vega and Laub examined Minor A.B. on January 3 7, 2022. (Compl. ¶¶ 22–27.) This examination included an examination to rule out sexual 4 abuse. (Id. ¶ 25.) Vega and Laub also recommended that urine be collected. (Id.) Upon 5 this recommendation, the County collected a urine sample in a subsequent examination at 6 Polinsky. (Id. ¶ 27.) Martinez and Bernal were not notified of these examinations, were 7 not given the opportunity to be present at these examinations, did not consent to these 8 examinations, and there was no court order authorizing these examinations. (Id. ¶¶ 22, 27.) 9 As physicians acting under the color of state law at the time of the examination, Vega and 10 Laub should have ensured that (1) Minor A.B.’s parents were notified of the medical 11 examination; (2) Minor A.B.’s parents consented, or a court order was obtained, in advance 12 of the medical examination; and (3) Minor A.B.’s parents were permitted to be present at 13 the examination. See Benavidez, 993 F.3d at 1150. Yet, they did not. Thus, “accept[ing] 14 [the] factual allegations in the [C]omplaint as true and constru[ing] the pleadings in the 15 light most favorable to [Plaintiffs,]” Manzarek, 519 F.3d at 1031, the Court finds that 16 Plaintiffs’ allegations are sufficient to withstand the Individual Defendants’ MTD. 17 c) Qualified Immunity 18 “The doctrine of qualified immunity protects government officials ‘from liability for 19 civil damages insofar as their conduct does not violate clearly established statutory or 20 constitutional rights of which a reasonable person would have known.’” Pearson, 555 U.S. 21 at 231. There is a “two-step sequence for resolving government officials’ qualified 22 immunity claims. First, a court must decide whether the facts that a plaintiff has alleged 23 or shown make out a violation of a constitutional right. Second, if the plaintiff has satisfied 24 this first step, the court must decide whether the right at issue was ‘clearly established’ at 25 the time of defendant’s alleged misconduct.” Id. at 232 (citations omitted). Having 26 adequately pled constitutional claims for unlawful medical examinations against the 27 Individual Defendants (see Sections III.A.2.a–c), the question now is whether the right at 28 issue was “clearly established.” Id. 1 Here, the Individual Defendants argue that Defendants Vega and Laub are entitled 2 to qualified immunity because “Plaintiffs do not identify any clearly established law that 3 indicates a medical professional who suspects child abuse must obtain the consent of 4 persons who might be the abusers to perform such an examination.” (Doc. 38-1 at 17.) 5 However, the Ninth Circuit has long held that “[t]he right to family association includes 6 the right of parents to make important medical decisions for their children, and of children 7 to have those decisions made by their parents … .” Wallis, 202 F.3d at 1141 (citations 8 omitted)). “Moreover, parents have a right … to be with their children while they are 9 receiving medical attention …. Likewise, children have a corresponding right to the love, 10 comfort, and reassurance of their parents while they are undergoing medical procedures, 11 including examinations … .” Id. at 1142. It is also “clearly established” that “the County 12 is required to: (1) notify the parents of a medical examination of their children; (2) obtain 13 parental consent or a court order in advance of the medical examination; and (3) permit the 14 parent to be present at the examination.” Benavidez, 993 F.3d at 1150. 15 In light of this precedent, the Court finds it is “clearly established” that, as physicians 16 working in concert with the County under the color of state law, the Individual Defendants’ 17 should have ensured that (1) Minor A.B.’s parents were notified of the medical 18 examination; (2) Minor A.B.’s parents consented, or a court order was obtained, in advance 19 of the medical examination; and (3) Minor A.B.’s parents were permitted to be present at 20 the examination. See id.at 1150–1153. Therefore, Plaintiffs’ claims related to the physical 21 examinations of Minor A.B. are not barred by qualified immunity. 22 3. Seventh Cause of Action—Injunctive Relief 23 “Injunctive relief is ‘an extraordinary remedy that may only be awarded upon a clear 24 showing that the plaintiff is entitled to such relief.’” Williams v. Cnty. of San Diego, 523 25 F. Supp. 3d 1183, 1202 (S.D. Cal. 2021) (quoting Winter v. Natural Res. Def. Council, 555 26 U.S. 7, 22 (2008)). “To obtain injunctive relief, ‘a plaintiff must show that he has suffered 27 or is threatened with a ‘concrete and particularized’ legal harm, coupled with the ‘sufficient 28 1 likelihood that he will again be wronged in a similar way.’’” Id. (quoting Canatella v. 2 State of California, 304 F.3d 843, 852 (9th Cir. 2002)). 3 As explained above, Plaintiffs have adequately alleged constitutional claims against 4 each of the Individual Defendants. Therefore, the Court only considers whether injunctive 5 relief may ultimately be appropriate as a remedy for the purported constitutional violations. 6 See id. The Court finds that Plaintiffs have not pled any specific facts suggesting that they 7 wronged again “in a similar way.” Id. Defendants correctly note that Plaintiffs have not 8 alleged that they will continue to seek care from Rady or the Individual Defendants and 9 that any threat of future harm to Martinez, Bernal, and Minor A.B. is speculative at best. 10 (Doc. 38-1 at 18.) Accordingly, Plaintiffs’ claims for injunctive relief against the 11 Individual Defendants are DISMISSED. 12 B. Rady’s MTD 13 Plaintiffs assert two claims for relief against Rady. Plaintiffs’ sixth claim is for 14 Monell-related claims pursuant to § 1983. (Compl. at 1, 25–28.) Plaintiffs’ seventh claim 15 is for injunctive relief. (Id. at 2, 28–29.) The Court addresses each claim for relief in turn. 16 1. Sixth Cause of Action—Monell 17 “To make out a [§ 1983] claim against [Rady] under Monell, [Plaintiffs] must show 18 that (1) [Rady] acted under color of state law, and (2) if a constitutional violation occurred, 19 the violation was caused by an official policy or custom of [Rady].” Tsao v. Desert Palace, 20 Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (citing Harper v. City of Los Angeles, 533 F.3d 21 1010, 1024 (9th Cir.2008)).5 “[A]n entity does not enjoy qualified immunity from suit 22 23 5 Rady does not seem to dispute that it was “acting under the color of state law,” so the 24 Court will not address it below. Even if the Court were to interpret Rady’s factual arguments as pertaining to the “under the color of state law” prong, the Court finds that, at 25 this stage, Plaintiffs have alleged that Rady acted under the color of state law. See e.g., 26 N.L. by & through Arce v. Childrens Hosp. Los Angeles, 711 F. App’x 433, 433–34 (9th Cir. 2018) (“The factual allegations in the operative complaint … give rise to a plausible 27 inference that [Children’s Hospital Los Angeles] acted under color of state law.”); Meyer 28 v. Cnty. of San Diego, Case No.: 21-cv-00341-GPC, 2021 WL 4924836, at *9 (S.D. Cal. 1 under § 1983.” N.L. v. Children’s Hosp. Los Angeles, No. CV 15-07200-AB (FFMx), 2019 2 WL 10854340, at *6 (C.D. Cal. Oct. 22, 2019) (citing Leatherman v. Tarrant Cnty. 3 Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166–67 (1993)). 4 In its MTD, Rady argues that (a) Plaintiffs fail to plead any underlying constitutional 5 violation necessary to trigger Monell liability, (b) Plaintiffs fail to identify any policy or 6 custom to support Monell liability, and (c) that Plaintiffs do not allege that Rady failed to 7 train its employees. (Doc. 37-1 at 9–16.) The Court addresses each argument in turn. 8 a) Underlying Constitutional Violations 9 Regarding the underlying constitutional violations, Rady argues that Plaintiffs only 10 allege the fabrication of statements and the omission of exculpatory evidence by the County 11 and its social workers, not Rady. (Doc. 37-1 at 10.) Rady also argues that it is the County, 12 not Rady, that is required to notify parents and obtain parental consent or a court order for 13 medical examinations of minors. (Id. at 10–11.) However, as set forth above (see Section 14 III.A), Plaintiffs have stated constitutional claims against Defendants Nienow, Vega, and 15 Laub, who are physicians contracted to conduct forensic examinations at Rady (see Compl. 16 ¶¶ 3–5). Accordingly, Plaintiffs have adequately alleged underlying constitutional 17 violations sufficient to support a Monell claim against Rady. 18 Rady also attempts to avoid Monell liability by arguing that the Individual 19 Defendants are not Rady employees. (See Doc. Doc. 37-1 at 6 (citing Cal. Bus. & Prof. 20 Code § 2400, et seq. [the “Medical Practices Act”]); Doc. 43 at 2–3.) However, Rady has 21 not identified any authority that precludes Monell liability on this distinction alone. 22 Further, while Rady may not employ the Individual Defendants directly (see Cal. Bus. & 23 Prof. Code § 2400), the Court cannot assume at this stage that no other type of agency 24 relationship exists. See e.g., Ermoian v. Desert Hosp., 152 Cal. App. 4th 475, 510 (2007) 25

26 Oct. 21, 2021) (“Whether this allegation supports Rady’s characterization as a state actor 27 is a close call. … However, the allegation[s] … , at this stage, [are] sufficient to allege the 28 requisite nexus between state and private entity.”). 1 (finding an ostensible agency relationship between a hospital and physicians employed by 2 the hospital’s outpatient maternity services clinic). Plaintiffs’ Monell claim is not subject 3 to dismissal on this basis alone. 4 b) Policy, Custom, or Pattern 5 To establish Monell liability against Rady, “[Plaintiffs] must demonstrate that an 6 ‘official policy, custom, or pattern’ on the part of [Rady] was ‘the actionable cause of the 7 claimed injury.’” Tsao, Inc., 698 F.3d at 1143 (citing Harper, 533 F.3d at 1024). “A 8 ‘policy’ is ‘a deliberate choice to follow a course of action made from among various 9 alternatives by the official or officials responsible for establishing final policy with respect 10 to the subject matter in question.’ ” Id. (quoting Long v. Cnty. of Los Angeles, 442 F.3d 11 1178, 1185 (9th Cir.2006)). There are “two types of policies: those that result in the 12 [private entity] itself violating someone’s constitutional rights or instructing its employees 13 to do so, and those that result, through omission … .’” Id. The Ninth Circuit has “referred 14 to these two types of policies as policies of action and inaction.” Id. (citing Long, 442 F.3d 15 at 1185). 16 “Absent a formal [] policy, [Plaintiffs] must show a ‘longstanding practice or custom 17 which constitutes the standard operating procedure of the [] entity.’” Trevino v. Gates, 99 18 F.3d 911, 918 (9th Cir. 1996) (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th 19 Cir. 1992)). “The custom must be so ‘persistent and widespread’ that it constitutes a 20 ‘permanent and well settled [] policy.’” Id. (quoting Monell v. Dept. of Soc. Serv. of N.Y., 21 436 U.S. 658, 691 (1978)). “Liability for improper custom may not be predicated on 22 isolated or sporadic incidents; it must be founded upon practices of sufficient duration, 23 frequency and consistency that the conduct has become a traditional method of carrying 24 out policy.” Id. (citations omitted). 25 The crux of Rady’s arguments in its MTD is that Plaintiffs’ Monell allegations are 26 conclusory, lack specificity, and pertain only to Plaintiffs’ own experiences. (See Doc. 37- 27 1 at 12–14.) Plaintiffs respond by restating the allegations in their Complaint. (See Doc. 28 40 at 11–16.) After careful consideration of the allegations set forth in Plaintiffs’ 1 Complaint, the Court finds that, at this stage, Plaintiffs have adequately stated a claim for 2 Monell liability against Rady. See Manzarek, 519 F.3d at 1031. 3 Plaintiffs allege that Rady, Chadwick, and the Chadwick team routinely work with 4 the County, its HHSA, law enforcement, and the courts to investigate suspected child abuse 5 and neglect. (Compl. ¶¶ 38, 40, 84.) Rady and its Chadwick team initiate, authorize, and 6 conduct non-consensual and unwarranted forensic interviews and medical examinations. 7 (Id. ¶ 40.) The Complaint specifically alleges that Rady, through its team at Chadwick, 8 has conducted as many as 769 forensic medical exams at the behest of the County’s HHSA 9 without first obtaining court approval or authorization. (Id. ¶ 41.) Plaintiffs claim that this 10 policy of conducting medical examinations on children removed from their parents without 11 exigent circumstances, a court order, a warrant, or parental consent violates the 12 constitutional right of the children and the parents, including Minor A.B. (Id. ¶ 85a.) The 13 Court finds that these allegations are detailed and sufficient to state a Monell claim against 14 Rady at this stage. See Manzarek, 519 F.3d at 1031. 15 Similarly, Plaintiffs allege that Defendant Nienow’s report was deceptive because it 16 clearly (and falsely) implied that she had examined Minor A.B. on January 6, 2022 or 17 January 7, 2022. (Compl. ¶ 31.) Nienow opined that Minor A.B. be removed from her 18 parents’ care and custody even though Nienow did not examine Minor A.B., did not speak 19 with Martinez, did not speak with Dr. Swords or Dr. Hightower, and did not review Minor 20 A.B.’s extensive past medical history. (Id. ¶19.) The County social workers’ statements 21 and recommendations to the Juvenile Court were based solely on Nienow’s report, which 22 was attached to the Detention Report submitted to the Juvenile Court on January 10, 2022. 23 (Id. ¶ 31.) Plaintiffs then conclude that Rady’s policy of providing expert opinions to the 24 County based on insufficient information results in constitutional violations, like the ones 25 at issue here, as well as other legal actions.6 (Id. ¶ 85b.) The Court finds that these 26 27 6 The Court has also identified similar actions against Rady. See e.g., Meyer, 2021 WL 28 4924836, at *1–2; JQ.H by & through Thomas v. Cnty. of San Diego, No. 18-CV-924- 1 allegations are detailed sufficient to state a Monell claim against Rady at this stage. See 2 Manzarek, 519 F.3d at 1031. 3 c) Inadequate Training 4 Because the Court finds that Plaintiffs have adequately alleged at least one policy or 5 custom sufficient to state a Monell claim against Rady, the Court need not address 6 Plaintiffs’ inadequate training allegations (see Compl. ¶ 85c–d). See Tsao, 698 F.3d at 7 1139 (“To create liability under § 1983, the constitutional violation must be caused by ‘a 8 policy, practice, or custom of the entity,’ or be the result of an order by a policy-making 9 officer.”) (citations omitted) (emphasis added). 10 2. Seventh Cause of Action—Injunctive Relief 11 Because the Court finds that Plaintiffs have adequately alleged a Monell claim 12 against Rady, Plaintiffs have also alleged a claim for injunctive relief against Rady. See 13 Los Angeles Cnty. v. Humphries, 562 U.S. 29, 39 (2010) (“We hold that Monell’s ‘policy 14 or custom’ requirement applies in § 1983 cases irrespective of whether the relief sought is 15 monetary or prospective.”). 16 IV. CONCLUSION 17 Based on the foregoing, the Individual Defendants’ MTD is GRANTED IN PART 18 and DENIED IN PART. Plaintiffs’ claims for judicial deception against Defendants Vega 19 and Laub are DISMISSED with leave to amend. Plaintiffs’ claims for injunctive relief 20 against all of the Individual Defendants are DISMISSED with leave to amend. Plaintiffs 21 remaining claims against the Individual Defendants may proceed. 22 Rady’s MTD is DENIED in its entirety. 23 Should Plaintiffs choose to file amended claims for judicial deception against 24 Defendants Vega and Laub, or for injunctive relief as to all of the Individual Defendants, 25 26 27 BTM-AHG, 2020 WL 13178589, at *2 (S.D. Cal. Oct. 7, 2020); Harris v. Cnty. of San 28 Diego, No. 18-cv-924-BTM-AHG, 2019 WL 6683367, at *1 (S.D. Cal. Dec. 5, 2019). 1 || Plaintiffs must file their amended complaint on or before January 9, 2025. Defendants’ 2 response to any amended complaint must be filed on or before January 30, 2025. 3 Should Plaintiffs choose not to amend their judicial deception claims against 4 ||Defendants Vega and Laub, or their injunctive relief claims against all of the Individual 5 Defendants, Defendants must answer Plaintiffs’ Complaint on or before January 9, 2025. 6 IT IS SO ORDERED. 7 ||DATE: December 20, 2024 et misls, Moitrygs 9 HON. RUTH BERMUBEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 DAY. DDAT ATIC