# Novac v. County of Sacramento

> District Court, E.D. California · October 21, 2019

URL: https://www.frixlaw.com/law-library/cases/10014648

## Case

- **Court:** District Court, E.D. California
- **Decided:** October 21, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 Filip Novac; Iudita Novac; No. 2:18-cv-02232-JAM-KJN
A.N., a minor by and through
12 his guardian ad litem; et
al.,
13 ORDER GRANTING IN PART
Plaintiffs, DEFENDANTS’ MOTION TO DISMISS;
14 AND SUA SPONTE ORDER DECLINING
v. SUPPLEMENTAL JURISDICTION
15
County of Sacramento, a
16 public entity; et al.,
17 Defendants.
18
19 On August 15, 2018 Plaintiffs filed a civil rights action
20 against the County of Sacramento and four social workers for the
21 Sacramento Department of Health & Human Services (“DHHS”)—Chandra
22 Stewart, Catherine Bryant, Sonya Howell, and Tong Vang
23 (collectively “Social Worker Defendants”). Compl., ECF No. 1.
24 Plaintiffs Filip Novac, Iudita Novac, and their minor children
25 levy serious allegations against Defendants, contending they
26 interfered with Filip and Iudita’s parental rights, improperly
27 removed the children from their homes, and allowed those children
28 to stay with abusive foster families despite repeated complaints.
1 Defendants filed a motion to dismiss this complaint for,
2 among other reasons, failure to comply with Rule 12(b)(6). See
3 February 2019 Mot. to Dismiss, ECF No. 19. Plaintiffs filed an
4 amended complaint, but it was virtually identical to the original
5 pleading. See First Amended Complaint, ECF No. 20. This led
6 Defendants to file a second motion to dismiss. March 2019 Mot.
7 to Dismiss, ECF No. 22. The Court granted their motion,
8 dismissing four of Plaintiffs’ claims with prejudice:
9 1. Section 1983 claims based on “discrete acts” that
10 occurred before August 15, 2016;
11 2. All Article I, section 13 claims;
12 3. All common law tort claims against the County; and
13 4. Section 1983 claims against the Social Worker
14 Defendants that challenge quasi-prosecutorial conduct.
15 Order Granting Defs.’ Mot. to Dismiss (“Order”) at 11, ECF No.
16 26. The Court also dismissed the following claims without
17 prejudice:
18 1. Section 1983 claim against the County;
19 2. All Unruh Civil Rights Act claims;
20 3. All Bane Act claims;
21 4. Section 1983 claims against the Social Worker
22 Defendants that did not challenge quasi-prosecutorial
23 conduct; and
24 5. All common law tort claims against the Social Worker
25 Defendants.
26 Id. at 11-12.
27 Attempting to cure the deficiencies in their complaint,
28 Plaintiffs filed a Second Amended Complaint (“SAC”). ECF No. 28.
1 In form, this complaint differs from the two previous complaints.
2 But in substance, it continues to disregard the requirements of
3 Bell Atlantic v. Twombley, 550 U.S. 544 (2009); Ashcroft v.
4 Iqbal, 556 U.S. 662 (2009); and the line of binding cases that
5 follow. For this reason, and those discussed below, the Court
6 GRANTS IN PART Defendants’ most recent motion to dismiss.1 See
7 Mot. to Dismiss (“Mot.”), ECF No. 33. Specifically, the Court
8 DISMISSES Plaintiffs’ Section 1983 claims against the County and
9 the Social Worker Defendants WITH PREJUDICE.
10 Untethered to any federal law claims, Plaintiffs’ state law
11 claims are better suited for review in state court. See 28
12 U.S.C. § 1367(c)(3). The Court therefore declines to exercise
13 supplemental jurisdiction over Plaintiff’s Bane Act, Unruh Civil
14 Rights Act, and common law tort claims which now must be pursued
15 in an appropriate state court.
16
17 I. OPINION
18 A. Legal Standard
19 Federal Rule of Civil Procedure 8(a)(2) requires a “short
20 and plain statement of the claim showing that the pleader is
21 entitled to relief.” A court will dismiss a suit if the
22 plaintiff fails to “state a claim upon which relief can be
23 granted.” Fed. R. Civ. Proc. 12(b)(6). To defeat a Rule
24 12(b)(6) motion to dismiss, a plaintiff must “plead[] factual
25 content that allows the court to draw the reasonable inference
26

27 1 This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
28 scheduled for September 10, 2019.
1 that the defendant is liable for the misconduct alleged.”
2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At this stage, the
3 Court “must accept as true all of the allegations contained in a
4 complaint.” Id. But it need not “accept as true a legal
5 conclusion couched as a factual allegation.” Id.
6 Plaintiffs’ counsel’s criticism of the Rule 12(b)(6)
7 pleading standard places him in the company of countless
8 advocates and legal scholars. See Adam N. Steinman, The Rise and
9 Fall of Plausibility Pleading, 69 TEX. L. REV. 333, 335 n.5 (2016).
10 But in suggesting this Court is not bound by Iqubal and its
11 progeny, counsel stands alone. While true that Plaintiffs “are
12 not required to prove their case from the outset,” they must
13 nonetheless “plead factual content that allows the court to draw
14 the reasonable inference that the defendant is liable for the
15 conduct alleged.” See Opp’n at 2, ECF No. 34; see also Iqbal,
16 556 U.S. at 678. This necessarily requires the claimant’s
17 allegations to track the prima facie elements of the claims
18 brought. Id. at 682-83.
19 Plaintiffs’ counsel insists that “Defendants here are 99%
20 attempting to try the case on technicalities of pleadings rather
21 than on the merits,” Opp’n at 3, but fails to see that preventing
22 poorly-pled claims from unlocking the doors of discovery is
23 precisely what Rule 12(b)(6) aims to do. Iqbal, 556 U.S. at 668-
24 69. If counsel seeks to avoid the federal rules, his choice of
25 forum should reflect that.
26 B. Analysis
27 1. Continuing Violations Doctrine
28 In its July 19, 2019 Order, the Court discussed the statute
1 of limitations for Section 1983 claims as well as the continuing
2 violations doctrine. Order at 4-5. The Court was unable to
3 determine from the complaint when Plaintiffs’ claims occurred, so
4 it simply dismissed with prejudice all Section 1983 claims that
5 accrued before August 15, 2016 and were predicated on Defendants’
6 “discrete acts.” Id.
7 Plaintiffs’ Second Amended Complaint states, “In keeping
8 with this Court’s motion to dismiss ruling, Plaintiffs expressly
9 do not assert any 42 USC section 1983 [sic] claims that accrued
10 before August 15, 2016.” SAC ¶ 229. Taking this representation
11 as true, Defendants’ motion to dismiss does not challenge the
12 Section 1983 claims in Plaintiffs’ complaint on statute of
13 limitations grounds. See Mot. at 7-10. As noted in their Reply,
14 ECF No. 35, Defendants only challenge the timeliness of
15 Plaintiffs’ state tort claims. Reply at 2. Even so, Plaintiffs
16 dedicate a significant portion of their opposition brief to the
17 argument that the continuing violations doctrine renders their
18 Section 1983 claims timely. See Opp’n at 5-6, 7-9. To the
19 extent these arguments challenge the Court’s prior ruling, it is
20 barred by the law-of-the case doctrine. Mot. at 7; Butcher v.
21 City of Marysville, No. 2:18-cv-02765-JAM-CKD, 2019 WL 3337888,
22 at *3 (E.D. Cal. July 25, 2019). And to the extent that they aim
23 to defeat Defendants’ motion to dismiss, the arguments are wholly
24 non-responsive. The Court declines to re-adjudicate an
25 apparently undisputed issue.
26 2. Section 1983 Claim against the County
27 Counties and county departments are subject to municipal
28 liability under 42 U.S.C. § 1983. See Mabe v. San Bernadino
1 County, Dept. of Pub. Soc. Services, 237 F.3d 1101, 1111 (2001).
2 As explained in this Court’s previous dismissal order, to state a
3 claim for municipal liability under Section 1983, a plaintiff
4 must allege facts showing (1) plaintiff(s) suffered a
5 constitutional deprivation; (2) the County had a custom, policy,
6 or practice; (3) the custom, policy or practice amounted to
7 deliberate indifference to the plaintiff’s constitutional rights;
8 and (4) the custom, policy, or practice was the moving force
9 behind the constitutional violation. Order at 5-6 (citing Monell
10 v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Anderson v.
11 Warner, 651 F.3d 1063, 1070 (9th Cir. 2006)).
12 Again, Plaintiffs set forth no more than conclusory
13 allegations in support of their claim that the County had an
14 unconstitutional custom, policy, or practice. Appearing to rely
15 upon a respondeat superior theory of liability, Plaintiffs rest
16 their case against the County upon the shoulders of the Social
17 Worker Defendants’ alleged misconduct. See SAC ¶¶ 240-246.
18 Plaintiffs allege the Social Worker Defendants “executed,
19 ratified, authorized [sic] policies practices and/or customs of
20 DHHS and County that unlawfully dictated removal of one or more
21 children from their parents when a parent refuses to sign a
22 Safety Plan.” SAC ¶ 23. But a county may only be held liable
23 for a county official’s conduct under Section 1983 when the
24 official is “responsible for establishing final government policy
25 respecting [the] activity [at issue].” Pembaur v. City of
26 Cincinnati, 475 U.S. 469, 482-83 (1986). There is no indication
27 that the Social Worker Defendants had final policymaking
28 authority for the County. Without such authority, a county
1 employee’s alleged misconduct cannot give rise to a claim of
2 municipal liability. Id. at 483.
3 Plaintiffs’ complaint also alleges the County “established
4 and/or followed policies, procedures, customs, and/or practices”
5 that violated Plaintiffs’ constitutional rights by:
6 • Detaining and/or removing children from their family and
7 homes without exigent circumstances, court order, and/or
8 consent;
9 • Removing children from their family without first
10 obtaining a warrant;
11 • Examining children without exigency, need, or proper
12 court order, and without presence and/or consent of their
13 parent;
14 • Opening “companion referrals” against a child any time
15 one parent is accused of a crime involving a minor;
16 • Coercing parents to sign off on a Safety Plan any time a
17 co-parent is alleged to have committed a crime against a
18 minor;
19 • Acting with deliberate indifference in implementing a
20 policy of inadequate training and/or supervision; and
21 • “Trumping up” reasons for seizing children “as a means of
22 intimidating parents . . . into entering into unnecessary
23 Safety Plans, thereby enabling the county to keep the
24 family locked up in the juvenile dependency system.”
25 SAC ¶ 243. These conclusions, like those included in the
26 original and First Amended Complaint, are not supported by the
27 factual allegations in the complaint. See generally SAC. Even
28 if the Court found the allegations gave rise to Section 1983
1 claims against the Social Worker Defendants, Plaintiffs’
2 complaint still fails to properly allege that their conduct
3 flowed from an unconstitutional custom, policy, or practice.
4 Defendants raise this argument for the third time in their most
5 recent motion to dismiss. Mot. at 8-10. See also February 2019
6 Mot. to Dismiss, ECF No. 19; March 2019 Mot. to Dismiss, ECF No.
7 22. Plaintiffs, again, fail to substantively oppose Defendants’
8 argument.
9 Plaintiffs, therefore, have not set forth a claim of
10 municipal liability under Section 1983 against the County
11 Defendant. Despite Plaintiffs request, the Court finds granting
12 leave to amend would be futile. The Court, therefore, DISMISSES
13 Plaintiffs’ Section 1983 claim against the County of Sacramento
14 WITH PREJUDICE.
15 3. Section 1983 Claims against the Social Worker
16 Defendants
17 Plaintiffs likewise fail to cure the deficiencies in their
18 Section 1983 claims against the Social Worker Defendants. In the
19 Court’s July 2019 Order, it found the complaint did not clearly
20 identify whether Plaintiffs were challenging quasi-prosecutorial
21 conduct—a category of conduct by social workers that, absent
22 certain exceptions, enjoys absolute immunity from suit for civil
23 damages. Order at 9-10 (citing Mabe, 237 F.3d at 1106). Social
24 workers engage in quasi-prosecutorial conduct when they initiate,
25 pursue, or testify in dependency proceedings. Id. at 1109.
26 Social workers are not, however, entitled to absolute immunity
27 “from claims that they fabricated evidence during an
28 investigation or made false statements in a dependency petition
1 that they signed under penalty of perjury.” Beltran v. Santa
2 Clara County, 514 F.3d 906, 908 (9th Cir. 2008). The Court
3 previously dismissed with prejudice Plaintiffs’ Section 1983
4 claims against the Social Worker Defendants to the extent that
5 they challenged quasi-prosecutorial conduct. Order at 9-10. To
6 the extent that Plaintiffs’ Section 1983 claims against the
7 Social Worker Defendants were not predicated on quasi-
8 prosecutorial conduct, the Court dismissed the claims without
9 prejudice. Id.
10 a. Quasi-Prosecutorial Conduct
11 The majority of Plaintiffs’ allegations flow from the manner
12 in which the Social Worker Defendants initiated and pursued the
13 dependency proceedings. See SAC ¶¶ 30-32, 39, 42-46, 48-222.
14 Plaintiffs allege Stewart, Bryant, and Howell pressured Iudita
15 and the children to make false statements against Filip; coerced
16 Filip and Iudita into signing a Safety Plan; refused to impose
17 the parents’ religious beliefs onto the children’s foster homes;
18 failed to provide necessary services; placed the children in
19 separate foster homes; cancelled visits; blocked phone calls;
20 kept the children with abusive and neglectful foster families;
21 misrepresented the status of Iudita and Filip’s parental rights;
22 and generally allowed the parents’ rights to be violated. Id.
23 At this stage of the proceedings, the Court, of course, takes
24 these accusations as true. But the grave nature of these
25 allegations does not change the fact that this conduct occurred
26 during the initiation and pursuit of dependency proceedings—well
27 within the scope of the Social Workers’ immunity.
28 Plaintiffs contend the quasi-prosecutorial essence of the
1 Social Worker Defendants’ conduct does not give rise to absolute
2 immunity because the complaint alleges they fabricated evidence
3 and made false statements. Opp’n at 11. The Court found four
4 allegations of false statements in the Second Amended Complaint.
5 The first two allegations—that the translators mistranslated
6 words during interviews, SAC ¶¶ 47, 57, and that members of
7 Filip’s family made false accusations against him, SAC ¶¶ 18, 45—
8 involve statements that were made to, rather than by, the Social
9 Workers. But nothing in Beltran suggests social workers lose
10 their immunity if they rely upon statements by others that later
11 turn out to be false.
12 The third and fourth misrepresentations Plaintiffs identify
13 are Tong’s statement the Novacs did not have any food in the
14 house, SAC ¶ 32, and Bryant’s statement that the Novac parents
15 refused to take I.N. to a scheduled dental appointment, SAC
16 ¶ 164. The Court assumes for the purpose of this motion that
17 Tong’s and Bryant’s statements were, in fact, false.
18 Accordingly, they are stripped of their absolute immunity for any
19 claims arising out of those statements. But the absence of
20 immunity does not give rise to liability. Plaintiffs still bear
21 the burden of alleging how these statements gave rise to
22 liability under Section 1983. This, they have failed to do.
23 Accordingly, the Court DISMISSES Plaintiffs’ Section 1983 claims
24 predicated on the Social Workers’ quasi-prosecutorial conduct
25 WITH PREJUDICE.
26 b. Non-Prosecutorial Conduct
27 Plaintiffs also challenge non-prosecutorial conduct by the
28 Social Worker Defendants—namely, the interrogation of the minor
1 children without the parents’; entry into the Novacs’ home
2 without a warrant or exigent circumstances; and the removal of
3 the Novac children from their home. SAC ¶¶ 19, 27-29, 250. When
4 social workers are not engaged in quasi-prosecutorial conduct,
5 they are afforded qualified, rather than absolute, immunity. See
6 Mabe, 237 F.3d at 1106. “Qualified immunity shields a government
7 official from liability for civil damages if (1) the law
8 governing the official’s conduct was clearly established; and (2)
9 under that law, the official objectively could have believed that
10 her conduct was lawful.” Id.
11 Plaintiffs’ allegations do not defeat the Social Workers’
12 qualified immunity defense. Their complaint states:
13 [T]he right to familial association guaranteed
under . . . the First, Fourth, and Fourteenth
14
Amendments is “clearly established” such that a
15 reasonable social services agent in Defendants’
situation would know it is unlawful to question,
16 threaten, examine, or search a child in the absence of
exigent circumstances, and outside of the presence of
17 her parents, without first obtaining judicial
authorization or parental consent.
18
19 SAC ¶ 231. Plaintiffs later cite to Mabe, 237 F.3d at 1101. SAC
20 ¶ 237. Mabe affirms the general proposition that “parents [may]
21 not be separated from their children without due process of law
22 except in emergencies.” Id. at 1107. It also holds that social
23 worker defendants are not entitled to summary judgment on
24 qualified immunity grounds when there is an issue of material
25 fact about whether the social workers reasonably believed exigent
26 circumstances existed. Id. at 1107-09.
27 But Plaintiffs do not challenge the Social Worker
28 Defendants’ reasonable belief that exigent circumstances existed
1 when they visited the Novac home, interviewed the children, and
2 removed the children the parents’ custody. Indeed, Plaintiffs
3 admit Filip’s relative reported him to DHHS for engaging in
4 “illegal or inappropriate” behavior. SAC ¶ 18. CPS had received
5 an anonymous report of domestic violence. SAC ¶ 27. Iudita
6 signed CPS papers saying that Filip “forced sex on her and abused
7 the kids.” SAC ¶ 45. And Iudita’s sister reported similar
8 abuse; as did the children. Id. Plaintiffs do not contend it
9 was unreasonable for the Social Worker Defendants to believe
10 these allegations gave rise to exigency. Rather, they seem to
11 argue that exigency could not have existed because the people
12 making the abuse accusations against Filip were lying. See SAC
13 ¶¶ 18, 27, 45. The veracity of the abuse accusations is only
14 relevant to the qualified immunity analysis if an objectively
15 reasonable social worker would have known Iudita, the children,
16 and Filip’s relatives were not telling the truth—something the
17 complaint does not allege. The allegations in Plaintiffs’
18 complaint do not defeat Social Worker Defendants’ qualified
19 immunity. Nor does the silence in Plaintiffs’ opposition. The
20 Court DISMISSES Plaintiffs’ Section 1983 claims predicated on the
21 Social Workers’ non-prosecutorial conduct WITH PREJUDICE.
22 4. Supplemental Jurisdiction
23 A district court may sua sponte decline to exercise
24 supplemental jurisdiction over pendant state law claims if it
25 “has dismissed all claims over which it has original
26 jurisdiction.” 28 U.S.C. § 1367(c)(3). The Court had original
27 jurisdiction over Plaintiffs’ Section 1983 claims against the
28 County and the Social Worker Defendants. 28 U.S.C. § 1331. Both
1 of those claims have been dismissed with prejudice. This Court
2 finds no reason or good cause to proceed with a case comprised of
3 purely state law claims. The Court, therefore, declines to
4 exercise supplemental jurisdiction over these remaining claims.
5 If Plaintiffs wish to pursue these claims they must do so in the
6 appropriate state court.
7
8 Il. ORDER
9 For the reasons set forth above, the Court GRANTS IN PART
10 Defendants’ motion to dismiss. Specifically, Plaintiffs’ Section
11 1983 claims against the County and the Social Worker Defendants
12 are DISMISSED WITH PREJUDICE. The Court declines to exercise
13 supplemental jurisdiction over the remaining state law claims and
14 orders the clerk of this court to close this case.
15 The Court also finds Defendants’ eight-page reply memorandum
16 | violated the Court’s standing order on page limits. Order re
17 Filing Requirements at 1, ECF No. 3-2 (limiting reply memoranda
18 in support of motions to dismiss to five pages). The Court did
19 not consider any arguments made after page five of Defendants’
20 reply. Defense counsel (not the client) is ORDERED to send a
21 check payable to the Clerk for the Eastern District of California
22, for $150.00 no later than seven days from the date of this Order.
23 IT IS SO ORDERED.
24 Dated: October 21, 2019
25 Me
26 Benlek, sunk
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10014648. Public record. Not legal advice.