Rodriguez v. County of San Joaquin

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 VICTOR RODRIGUEZ, an individual, No. 2:16-cv-00770-TLN-JDP

12 Plaintiff,

13 v. ORDER

14 COUNTY OF SAN JOAQUIN by and

through the SAN JOAQUIN COUNTY

15 HUMAN SERVICES AGENCY;

STEPHANIE EVANS, an individual;

16 LYNN K. SAGA-MATSUMOTO, an

individual, and DOES 1 through 9,

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Defendants.

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20 This matter is before the Court pursuant to a Motion to Dismiss brought by Defendants

21 County of San Joaquin through San Joaquin County Human Services Agency (“HSA”), Stephanie

22 Evans (“Evans”), and Lynn K. Saga-Matsumoto (“Saga-Matsumoto”) (collectively,

23 “Defendants”). (ECF No. 13.) Plaintiff Victor Rodriguez (“Plaintiff”) opposes the motion. (ECF

24 No. 17.) Defendants have filed a reply. (ECF No. 20.) Having carefully considered the briefing

25 filed by both parties and for the reasons set forth below, Defendants’ Motion to Dismiss (ECF

26 No. 13) is hereby GRANTED IN PART and DENIED IN PART.

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1 I. FACTUAL AND PROCEDURAL BACKGROUND

2 Plaintiff’s claims arise from the investigation, court hearings, and resolution of a juvenile

3 dependency proceeding for minor, A.R. (ECF No. 8 ¶¶ 14–30.) Plaintiff asserts A.R. is his

4 biological daughter. (Id.) When A.R. was born in 2012, she possessed the physical

5 characteristics of Fetal Alcohol Syndrome. (Id. at ¶ 16.) A.R. first came to Defendants’ attention

6 when A.R.’s mother, E.J., was arrested for child cruelty and public intoxication. (Id. at ¶ 15.)

7 E.J. had a long history of alcohol abuse and had lost her four older children due to her alcohol

8 dependency. (Id. at ¶ 16.) When HSA employees interviewed E.J. about A.R.’s biological father,

9 she informed them that another man, K.R., had signed a declaration of paternity and was listed on

10 A.R.’s birth certificate, and A.R.’s “acting father” was E.J.’s current boyfriend, R.S. (Id. at ¶¶

11 16–17.) K.R. confirmed he was listed on A.R.’s birth certificate but had taken a DNA test which

12 proved he was not A.R.’s biological father and “was working on having his name removed from

13 her birth certificate[.]” (Id. at ¶ 16.)

14 On April 2, 2013, HSA filed a petition on behalf of A.R. to institute juvenile dependency

15 proceedings. (See id. at ¶¶ 18–19.) Defendants submitted numerous reports to the juvenile

16 dependency court which detailed E.J.’s extensive criminal history involving alcohol abuse, child

17 endangerment, and her history with child protective services. (Id. at ¶ 19.) Included in the

18 petition was a police report, which detailed an altercation that occurred on July 26, 2012. (Id. at ¶

19 20.) The police report indicated E.J. had been drinking with Plaintiff when an altercation ensued

20 and E.J. attacked Plaintiff. (Id.) Witness statements from both Plaintiff and E.J. acknowledge

21 that E.J. was five-months pregnant with Plaintiff’s child. (Id.) In addition, the jurisdiction report

22 submitted by Defendants identified Plaintiff as a potential witness for the juvenile dependency

23 proceedings. (Id.) Plaintiff alleges that, despite the information in this police report, Defendants

24 represented to the juvenile dependency court that the identity and location of A.R.’s father were

25 unknown. (Id. at ¶ 21.)

26 At a detention hearing on April 3, 2013, K.R. appeared and told the juvenile dependency

27 court he was not A.R.’s true father. (Id. at ¶ 22.) HSA obtained a copy of A.R.’s birth certificate

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1 and found there was no father listed. (Id.) K.R. never appeared in the juvenile dependency

2 hearings again. (Id.)

3 At the jurisdiction hearing on April 15, 2013, the juvenile dependency court proceeded in

4 K.R.’s absence and relied upon the signed Declaration of Paternity to declare K.R. to be A.R.’s

5 presumed father. (See id. at ¶¶ 22–23.)

6 At the disposition hearing on February 6, 2014, the juvenile dependency court scheduled a

7 hearing pursuant to California Welfare and Institutions Code § 366.26 (“§ 366.26”) for June 4,

8 2014.1 (ECF No. 8 ¶ 24.) In preparation for this hearing, Evans prepared a declaration stating

9 she attempted to determine the unknown identity of A.R.’s father but was unsuccessful. (Id. at ¶

10 25.) The court gave Evans permission to publish a citation in the local newspaper, The Record, to

11 provide notice to A.R.’s unknown father to appear for the hearing. (Id.) The newspaper

12 published the notice for four consecutive weeks, but no father came forward. (See id. at ¶¶ 25,

13 27, 29.)

14 After multiple continuances, the § 366.26 hearing was held on February 6, 2015. (Id. at ¶

15 29.) On June 15, 2015, the juvenile dependency court terminated the parental rights of all

16 unknown fathers. (See id.) Plaintiff alleges Defendants never attempted to contact him prior to

17 the § 366.26 hearing, despite having the July 2012 police report with Plaintiff and E.J.’s

18 statements that Plaintiff was A.R.’s biological father. (See id. at ¶¶ 20, 29.) He further alleges

19 Defendants withheld this information from the juvenile dependency court and Evans instead

20 misrepresented to the court that K.R. was A.R.’s biological father. (See id. at ¶¶ 20, 33; see also

21 id. at ¶ 27 (Evans requested to provide notice of the § 366.26 hearing to K.R. through his

22 attorney).) As a result, Plaintiff contends he did not receive proper notice for any hearings related

23 to A.R.’s juvenile dependency proceedings. (Id. at ¶ 34.)

24 Plaintiff alleges that, throughout this time period, he continuously sought out E.J. and

25 A.R. by contacting known relatives but was unsuccessful. (Id. at ¶ 31.) Plaintiff contacted HSA

26 in 2013 and sought out the social worker on the case — Evans. (Id.) He informed Defendants he

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1 A § 366.26 hearing is a hearing to terminate the “parental rights or establish guardianship

28 of children adjudged dependent children of court.” Cal. Welf. & Inst. Code § 366.26.

1 was the witness “V.R.” from the July 2012 police report that was identified as A.R.’s biological

2 father. (Id.) He also requested a DNA test to prove his relationship to A.R., but the Defendants

3 declined to make A.R. available for the testing. (Id. at ¶ 32.)

4 On July 29, 2015, Plaintiff filed a petition with the juvenile dependency court and

5 requested the court vacate all orders made regarding A.R.’s father. (Id. at ¶ 34.) Defendants

6 opposed the petition on the basis that the rights of any potential fathers had been terminated. (Id.)

7 The juvenile dependency court denied Plaintiff’s petition.2 (ECF No. 14 at 5–6.) Plaintiff

8 appealed the decision, but the appellate court affirmed the denial. (Id. at 4–8.)

9 Plaintiff initiated this action on April 14, 2016, but never served Defendants. (ECF No. 1;

10 ECF No. 13 at 3.) On January 6, 2017, Plaintiff filed his First Amended Complaint (“FAC”), and

11 served Defendants seven months later, on July 19, 2017. (ECF No. 13 at 3.) The operative FAC

12 asserts seven causes of action against Defendants, for violations of Plaintiff’s constitutional rights

13 under 42 U.S.C. § 1983 (“§ 1983”) and violations of state law: (1) First Amendment Interference

14 with Familial Relations and (2) 14th Amendment Due Process against Evans and Saga-

15 Matsumoto; (3) Monell Liability against HSA; (4) Negligence against all Defendants; (5)

16 Negligent Hiring, Retaining, and Training against HSA; and (6) Intentional Infliction of

17 Emotional Distress and (7) Negligent Infliction of Emotional Distress against Evans and Saga-

18 Matsumoto. (ECF No. 8 at 1.)

19 On September 6, 2017, Defendants filed the instant Motion to Dismiss pursuant to Federal

20 Rule of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 13.) Defendants move to dismiss all counts

21 arguing that: (1) Plaintiff failed to timely serve Defendants under F.R.C.P. Rule 4(m); (2)

22 Plaintiff fails to state a claim for relief under Rule 12(b)(6); (3) Defendants are entitled to

23 qualified immunity; and (4) Plaintiff’s claims against HSA fail to allege an unconstitutional

24 policy or practice to show the County of San Joaquin is responsible for Plaintiff’s harm. (Id.)

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26 2 Defendants request the Court take judicial notice of the order issued by the Third District

Court of Appeal (San Joaquin) regarding Plaintiff’s petition, which was filed in the case In re

27 A.R., No. C080588 (Aug. 10, 2016). (ECF No. 14.) Defendants’ request, which Plaintiff does

not oppose, is hereby GRANTED. Fed. R. Evid. 201(b); Bennett v. Medtronic, Inc., 285 F.3d

28 801, 803 n.2 (9th Cir. 2002) (a court may take judicial notice of court records).

1 II. STANDARD OF LAW

2 A. Federal Rule of Civil Procedure 4(m)

3 Rule 4(m) requires the plaintiff to serve a defendant “within 90 days after the complaint is

4 filed.” Fed. R. Civ. P. 4(m). If the defendant is not served within 90 days, the court “must

5 dismiss the action without prejudice against the defendant,” unless the plaintiff “shows good

6 cause for the failure.” Id. Rule 4(m) requires a “two-step analysis” for determining relief. In re

7 Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). First, the district court “must extend the time

8 period” for service upon a showing of good cause. Id. When determining whether the good

9 cause requirement has been satisfied, the court must consider whether: “(a) the party to be served

10 personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and

11 (c) plaintiff would be severely prejudiced if his complaint were dismissed.” Boudette v. Barnette,

12 923 F.2d 754, 756 (9th Cir. 1991) (citing Hart v. United States, 817 F.2d 78, 80–81 (9th Cir.

13 1987)).

14 Second, if good cause is not established, “the court has the discretion to dismiss without

15 prejudice or to extend the time period.” Sheehan, 253 F.3d at 512. On its face, “Rule 4(m) does

16 not tie the hands of the district court after the 120–day period has expired.” Efaw v. Williams,

17 473 F.3d 1038, 1041 (9th Cir. 2007) (citation omitted). Rather, “Rule 4(m) explicitly permits a

18 district court to grant an extension of time to serve the complaint after the 120–day period.” Id.

19 In making this decision, courts may consider factors such as “a statute of limitations bar,

20 prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Id. (citation

21 omitted).

22 B. Federal Rule of Civil Procedure 12(b)(6)

23 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

24 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Federal Rule of

25 Civil Procedure 8(a) requires that a pleading contain “a short and plain statement of the claim

26 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

27 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice

28 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.

1 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on

2 liberal discovery rules and summary judgment motions to define disputed facts and issues and to

3 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

4 On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

5 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every

6 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail

7 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege

8 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

9 relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

10 factual content that allows the court to draw the reasonable inference that the defendant is liable

11 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).

12 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

13 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

14 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

15 unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678. A

16 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

17 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

18 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

19 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

20 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

21 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459

22 U.S. 519, 526 (1983).

23 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

24 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting

25 Twombly, 550 U.S. at 570). Only where a plaintiff has failed to “nudge[] [his] claims . . . across

26 the line from conceivable to plausible,” is the complaint properly dismissed. Id. at 680. While

27 the plausibility requirement is not akin to a probability requirement, it demands more than “a

28 sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is “a

1 context–specific task that requires the reviewing court to draw on its judicial experience and

2 common sense.” Id. at 679.

3 If a complaint fails to state a plausible claim, “[a] district court should grant leave to

4 amend even if no request to amend the pleading was made, unless it determines that the pleading

5 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130

6 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see

7 also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in

8 denying leave to amend when amendment would be futile). Although a district court should

9 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to

10 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.”

11 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting

12 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

13 III. ANALYSIS

14 The Court will first address Defendants’ argument that the case should be dismissed due

15 to Plaintiff’s failure to timely serve Defendants under Rule 4(m). (ECF No. 13 at 9.) Next, the

16 Court will address Plaintiff’s claims as asserted against each Defendant.

17 A. Federal Rule of Civil Procedure 4(m)

18 Defendants argue this action should be dismissed due to Plaintiff’s failure to serve

19 Defendants within the 90 days required under Rule 4(m). (ECF No. 13 at 9.) In fact, Plaintiff

20 served Defendants for the first time approximately seven months after filing his FAC. (Id.)

21 Plaintiff concedes he served Defendants after the 90-day period allowed by Rule 4(m). (ECF No.

22 17 at 14.) However, he attributes the delay to numerous internal issues within his counsel’s law

23 firm and argues these issues amount to good cause. (Id.)

24 Applying the two-step analysis for determining relief under Rule 4(m), the Court first

25 considers whether good cause exists to extend the time period. Sheehan, 253 F.3d at 512;

26 Boudette, 923 F.2d at 755–56. As discussed, the good cause determination is based on whether

27 the party to be served personally received actual notice of the lawsuit and consideration of the

28 prejudice that would result to the parties. Boudette, 923 F.2d at 756.

1 Here, Plaintiff claims Defendants received actual notice of the lawsuit in October 2015,

2 when Plaintiff served a claim for damages under the California Tort Claims Act. (ECF No. 17 at

3 15.) This claim provided a “written summary of the factual basis for Plaintiff’s claims and intent

4 to file a lawsuit.” (Id.) The Court therefore finds the first factor weighs in favor of good cause.

5 As to the second factor, Defendants argue they will suffer prejudice if the Court extends the

6 service time because Evans has retired and no longer has access to her old files. (ECF No. 20 at

7 5.) Thus, Defendants will face difficulties in preparing for her defense. (Id.) The Court finds

8 this factor weighs against good cause. As to the third factor, however, the Court finds Plaintiff

9 will be significantly prejudiced if he is ordered to refile his lawsuit because he will likely be

10 barred by the statute of limitations for his claims. (ECF No. 17 at 15); Maldonado v. Harris, 370

11 F.3d 945, 954–55 (9th Cir. 2004) (California statute of limitations for § 1983 claims is two years).

12 Therefore, on balance, the Court finds the factors weigh in favor of finding good cause exists to

13 extend the time period for service under Rule 4(m). Boudette, 923 F.2d at 756.

14 Further, even absent a finding of good cause, the Court exercises its discretion to extend

15 the time period in this case, Sheehan, 253 F.3d at 512, based on the finding that the statute of

16 limitations would cause Plaintiff to be severely prejudiced if the case is dismissed. See Lemoge v.

17 United States, 587 F.3d 1188, 1198 (9th Cir. 2009) (“Exercise of discretion to extend time to

18 complete service is appropriate when, for example, a statute-of-limitations bar would operate to

19 prevent re-filing of the action.”). The Court additionally accepts Plaintiff’s explanations for the

20 delay in service. (See ECF No. 17 at 14–15; ECF No. 18 (declaration of counsel).)

21 For these reasons, the Court DENIES Defendants’ motion to dismiss pursuant to Rule

22 4(m).

23 B. Defendant Saga-Matsumoto

24 Defendants move to dismiss Saga-Matsumoto from the lawsuit because Plaintiff did not

25 allege any factual allegations against her. (ECF No. 13 at 11.) Plaintiff does not object to Saga-

26 Matsumoto’s dismissal but requests the dismissal be without prejudice to adding Saga-

27 Matsumoto if discovery later reveals her involvement in this action. (ECF No. 17 at 8.) If

28 Plaintiff wishes to bring claims against Saga-Matsumoto at a later date, he may file a motion to

1 do so pursuant to Rule 15. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss all

2 claims asserted against Saga-Matsumoto and DISMISSES Saga-Matsumoto from this action

3 without prejudice.

4 C. Federal Claims

5 Plaintiff asserts three federal claims under § 1983: (1) First Amendment interference with

6 familial relations against Evans (Claim 1); (2) Fourteenth Amendment procedural and substantive

7 due process violations against Evans (Claim 2); and (3) Monell Liability against HSA (Claim 3).

8 (ECF No. 8 at 13–16.) Defendants move to dismiss the individual constitutional claims on the

9 basis that Evans is entitled to qualified immunity. (ECF No. 13 at 12.) They seek dismissal of

10 the Monell claim for failure to state a claim, namely failure to establish deprivation of a

11 constitutional right. (Id. at 19–20.) The Court will address each claim in turn.

12 i. Section 1983

13 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or

14 other federal rights by persons acting under color of state law. See Long v. Cty. of L.A., 442 F.3d

15 1178, 1185 (9th Cir. 2006). “Section 1983 is not itself a source of substantive rights but merely

16 provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada ex rel.

17 Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

18 386, 393–94 (1989)). To state a claim under § 1983, a plaintiff must allege facts from which it

19 may be inferred (1) he was deprived of a federal right, and (2) a person or entity who committed

20 the alleged violation acted under color of state law. Long, 442 F.3d at 1185. A plaintiff must

21 show a causal connection or link between the actions of the defendants and the deprivation

22 alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373–75 (1976).

23 The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional

24 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s

25 affirmative acts, or omits to perform an act which he is legally required to do that causes the

26 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)

27 (citation omitted).

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1 ii. Qualified Immunity

2 In § 1983 actions, qualified immunity “protects government officials from civil liability

3 where ‘their conduct does not violate clearly established statutory or constitutional rights of

4 which a reasonable person would have known.’” Cunningham v. Kramer, 178 F. Supp. 3d 999,

5 1003 (E.D. Cal. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The doctrine

6 “gives government officials breathing room to make reasonable but mistaken judgments” and

7 “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v.

8 al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

9 Qualified immunity is an affirmative defense; the burden of pleading it rests with the defendant.

10 Crawford-El v. Britton, 523 U.S. 574, 586–87 (1998) (citation omitted).

11 A qualified immunity analysis requires determining: (1) whether facts alleged, taken in the

12 light most favorable to the injured party, show the defendants’ conduct violated a constitutional

13 right; and (2) whether the right was clearly established. Smith v. City of Chandler, 667 F. App’x

14 648, 649 (9th Cir. 2016) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by

15 Pearson, 555 U.S. 223 (2009)). Courts may “exercise their sound discretion in deciding which of

16 the two prongs of the qualified immunity analysis should be addressed first in light of the

17 circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. However, if the Court

18 initially addresses the first prong and finds that no constitutional right was violated under the

19 alleged facts, the inquiry ends, and the defendants prevail. Saucier, 533 U.S. at 201.

20 In deciding the second prong, the Court considers whether the contours of the right were

21 sufficiently clear at the time that the action occurred so that “a reasonable official would

22 understand that what he is doing violates that right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002).

23 “The dispositive question is whether the violative nature of particular conduct is clearly

24 established.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017) (emphasis

25 in original) (internal quotations omitted). This question must be answered “not as a broad general

26 proposition,” but with reference to the facts of specific cases. Id. (citing Mullenix v. Luna, 577

27 U.S. 7, 12 (2015)). To determine whether a right is clearly established, a court “looks for cases of

28 controlling authority in the plaintiff’s jurisdiction at the time or a consensus of cases of persuasive

1 authority[.]” Kramer v. Cullinan, 878 F.3d 1156, 1163–64 (9th Cir. 2018) (citations omitted).

2 The plaintiff bears the burden of demonstrating the right at issue was clearly established. Id. at

3 1164.

4 iii. First Amendment Interference with Familial Relations

5 Plaintiff claims Evans violated his constitutional right to familial association by “refusing

6 to acknowledge the clear evidence that Plaintiff was in fact the biological father of minor A.R.,

7 withholding the informal communications between Plaintiff and Defendants from the dependency

8 court, and opposing any attempts by Plaintiff to prove that he was and is in fact A.R.’s biological

9 father.” (ECF No. 8 ¶ 40.) Defendants argue Plaintiff lacks standing under this claim because he

10 “failed to establish a legal parental right to A.R.” and as a result, he cannot allege a violation of a

11 “non-existent right to familial association.” (ECF No. 13 at 15–16.) The Court finds Defendants

12 have the better argument.

13 The flaw in Plaintiff’s argument is that he has not established Evans violated any clearly

14 established right. “[T]he First Amendment protects those relationships, including family

15 relationships, that presuppose ‘deep attachments and commitments to the necessarily few other

16 individuals with whom one shares not only a special community of thoughts, experiences, and

17 beliefs but also distinctively personal aspects of one’s life.’” Lee v. City of L.A., 250 F.3d 668,

18 685 (9th Cir. 2001) (quoting Bd. of Dir. v. Rotary Club, 481 U.S. 537, 545 (1987)) (citation

19 omitted). Thus, the Constitution protects “the parent-child relationship from unwanted

20 interference by the state.” Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788 (9th Cir. 2016).

21 However, “parental rights do not spring full-blown from the biological connection between parent

22 and child.” Id. at 789 (quoting Lehr v. Robertson, 463 U.S. 248, 260 (1983)). Rather,

23 [i]t is when an unwed father demonstrates a full commitment to the

responsibilities of parenthood by coming forward to participate in the

24 rearing of his child, that his interest in personal contact with his child

acquires substantial [constitutional protection]. Until then, a person

25 with only potential parental rights enjoys a liberty interest in the

companionship, care, and custody of his children that is

26 unambiguously lesser in magnitude.

27 Id. at 789 (internal quotations and citations omitted). “[T]he mere existence of a biological link

28 does not merit equivalent constitutional protection.” Lehr, 463 U.S. at 261. Thus, a person who

1 brings a familial association claim requires a “more enduring” relationship “which reflect[s] some

2 assumption of parental responsibility.” Kirkpatrick, 843 F.3d at 788–89 (holding father could not

3 challenge the seizure of a child because he had failed to establish his parental rights as of the date

4 of the seizure).

5 Here, even accepting as true Plaintiff’s allegations that he is A.R.’s biological father,3

6 Plaintiff fails to allege facts showing he had the type of parent-child relationship that is accorded

7 constitutional protection. See Kirkpatrick, 843 F.3d at 788–89. Indeed, Plaintiff alleges no facts

8 showing he has ever spent time with A.R. since she was born or even attempted to cultivate such

9 a relationship with her. On this basis alone, Plaintiff fails to demonstrate he is entitled to the First

10 Amendment protections related to familial relations.

11 In opposition, Plaintiff argues his right to “obtain status as a de facto or presumed parent

12 was foreclosed” when Evans told the juvenile court that she had no knowledge of and had not

13 located any of A.R.’s potential fathers. (ECF No. 17 at 19.) But this argument is premised on the

14 contention that a de facto parent’s rights under California law are equated with the rights of a

15 legal parent for purposes of constitutional rights. They are not. See e.g., Olvera v. Cty. of

16 Sacramento, 932 F. Supp. 2d 1123, 1141 (E.D. Cal. 2013) (citing Miller v. Cal. Dep’t of Soc.

17 Servs., 355 F.3d 1172, 1176 (9th Cir. 2004)) (holding, on Fourteenth Amendment claim, being de

18 facto parents merely conferred the right to appear in juvenile court proceedings and “no other, or

19 weightier interest of constitutional dimension”). Nor has Plaintiff identified any legal authority to

20 support the contention that he had a fundamental right to obtain status as a de facto parent.

21 Further, to the extent Plaintiff suggests Defendants prevented him from establishing the

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23 3 Defendants dispute this contention on the bases that: (1) Plaintiff admits there is no DNA

proof of this contention; (2) Plaintiff and E.J.’s witness statements included in the 2012 police

24 report similarly assert this belief with no other evidence (see ECF No. 8 ¶ 20); (3) E.J. did not

identify A.R. as a potential father to the juvenile court or Defendants; (4) neither of the two men

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E.J. did identify submitted any evidence to Defendants or the juvenile court that he was not

26 A.R.’s biological father (see id. at ¶¶ 16–17, 22); (5) the legally-binding declaration of paternity

signed by K.R. indicates he is A.R.’s biological father (id. at ¶¶ 16–17); and (6) Plaintiff alleges

27 no facts showing he pursued any of the legal remedies under California law (as set forth under

Cal. Fam. Code §§ 7500 et seq.) to establish legal parental rights (see generally id.). (See ECF

28 No. 13 at 4–6, 16.)

1 requisite parent-child relationship, Plaintiff’s contention is belied by his own allegations.

2 Notably, despite knowing he was A.R.’s father in July 2012 and learning of the dependency case

3 in 2013 when he contacted HSA and Evans (see ECF No. 8 ¶¶ 20, 31), Plaintiff nevertheless did

4 not appear or seek to appear at any of the juvenile dependency proceedings, and he did not file his

5 § 388 petition in the juvenile dependency court until July 29, 2015, nearly three years after A.R.

6 was born.4 (See ECF No. 8 ¶¶ 22–24, 29 (dependency proceedings on April 3, 2013, April 15,

7 2013, February 6, 2014, and February 6, 2015); id. at ¶ 34 (petition).)

8 In sum, because Plaintiff cannot establish entitlement to First Amendment familial

9 association protections as a matter of law, his claim for violations of that right necessarily fail.

10 This deficiency cannot be cured by amendment. Gardner, 563 F.3d at 990. In addition, Plaintiff

11 has identified no legal authority that identifies any clearly established right of a biological parent

12 with no prior interactions with his child — or a de facto parent — to First Amendment familial

13 association protections.5 Consequently, no reasonable social worker in Evans’s position would

14 have known that her specific actions violated Plaintiff’s constitutional rights. Therefore, Evans is

15 entitled to qualified immunity under both prongs of the Saucier analysis. Saucier, 533 U.S. at

16 ///

17

4 Plaintiff additionally alleges he was unable to attend the dependency hearings because

18

Defendants caused him not to receive proper notice of any of the hearing dates. (See ECF No. 8 ¶

19 34.) But this assertion is refuted by the fact that the § 366.26 hearing was noticed by publication

for four weeks — which the juvenile dependency court deemed proper (see id. at ¶¶ 25, 27) —

20 yet Plaintiff also failed to attend this hearing. If Plaintiff seeks to dispute the sufficiency of the

notice by publication ruling, he likely runs afoul of the Rooker-Feldman doctrine, which divests

21 federal courts of subject matter jurisdiction where civil claims “are inextricably intertwined with

the state court’s decision such that the adjudication of the federal claims would undercut the state

22

ruling or require the district court to interpret the application of state laws or procedural rules.”

23 See Tali v. Liao, No. 18-CV-00330-LHK, 2018 WL 5816171, at *3 (N.D. Cal. Nov. 5, 2018)

(citing Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008)). Therefore, the Court

24 assumes without determining that the notice publication itself was proper and sufficient to

provide Plaintiff notice of — at a minimum — the § 366.26 proceeding.

25

26 5 Plaintiff cites to several cases in support of his contention that he has a clearly established

right to familial association. (ECF No. 17 at 18.) However, as Defendants correctly note, these

27 cases are inapposite and therefore unavailing because they pertain to the rights of a foster parent

contesting removal of a child already in his/her care. (ECF No. 20 at 5–6.) Plaintiff is neither a

28 foster parent, nor did he have any prior relationship with A.R.

1 201. Accordingly, the Court GRANTS Defendants’ Motion as to this claim without leave to

2 amend.

3 iv. Fourteenth Amendment Due Process

4 The FAC asserts a claim for procedural and substantive due process violations under the

5 Fourteenth Amendment against Evans. (ECF No. 8 at 14–15.) As an initial matter, the Court

6 DISMISSES Plaintiff’s procedural due process claim because Plaintiff only opposes Defendants’

7 Motion as to the substantive due process claim and does not oppose dismissal of the procedural

8 due process claim. (See ECF No. 17 at 20–22.) Next, the Court turns to Plaintiff’s substantive

9 due process claim.

10 To establish a “substantive due process claim, a plaintiff must . . . show a government

11 deprivation of life, liberty, or property.” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d

12 1101, 1110 (9th Cir. 1010) (quoting Nunez v. City of L.A., 147 F.3d 867, 871 (9th Cir. 1998)).

13 However, “before turning to the question of whether [Plaintiff’s] due process rights were violated,

14 [the Court] must first determine whether there has been a deprivation of life, liberty, or property.”

15 Id.

16 Here, Plaintiff alleges Defendants’ actions deprived him of “a full and fair opportunity to

17 seek unification of his daughter.” (ECF No. 8 ¶¶ 44, 49.) Plaintiff claims Defendants caused this

18 deprivation when they: (1) failed to comply with unspecified provisions of the California Welfare

19 and Institutions Code and internal HSA policies; (2) affirmatively withheld from the juvenile

20 dependency court information that Defendants were communicating with Plaintiff about his

21 potential status as A.R.’s biological father; and (3) misrepresented to the juvenile dependency

22 court that the biological father was “unknown,” despite knowledge that Plaintiff was A.R.’s

23 biological father. (Id. at ¶¶ 45–46, 48.)

24 In support of the argument that Evans is qualifiedly immune, Defendants’ Motion focuses

25 mainly on the reasonableness of Evans’s actions in light of the information available to her at the

26 time. Namely, it was reasonable for Evans to rely on the information E.J. gave her about A.R.’s

27 potential fathers and K.R.’s signed declaration of paternity, which has “the same force and effect

28 as a judgment for paternity issued by a court of competent jurisdiction.” (ECF No. 13 at 13

1 (citing Cal Fam. Code § 7573).) Further, in light of K.R.’s singular appearance at the April 3,

2 2013 proceeding to purportedly dispute, without providing supporting evidence, that he was

3 A.R.’s biological father, it was reasonable for Evans to seek the juvenile dependency court’s

4 approval to publish notice of the § 366.26 hearing to all of A.R.’s potential fathers, in addition to

5 providing notice to K.R. specifically. (See id. at 15–16.) Further, Defendants argue Plaintiff has

6 not identified any clearly established right to familial association where he failed to establish a

7 legal parental right to A.R. before the juvenile dependency court terminated all potential fathers’

8 parental rights. (Id. (citing Kirkpatrick, 843 F.3d at 788).) Defendants again have the better

9 argument, as much of the Court’s analysis with respect to Plaintiff’s First Amendment claim is

10 applicable here as well.

11 As directed by the Ninth Circuit, the Court must first determine whether there has been a

12 deprivation of life, liberty, or property. Costanich, 627 F.3d at 1110. While Plaintiff alleges he

13 was deprived of “a full and fair opportunity to seek unification of his daughter,” the protected

14 liberty interest he is clearly invoking is the right to familial association. The Supreme Court has

15 recognized that the Fourteenth Amendment’s Due Process Clause protects the liberty interest “of

16 parents in the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65

17 (2000); see also Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, as discussed with

18 respect to Plaintiff’s First Amendment claim, Plaintiff fails to establish he had a protected liberty

19 interest in familial association because he did not have the type of parent-child relationship that is

20 entitled to such protections. See Kirkpatrick, 843 F.3d at 789–90. Thus, Plaintiff fails to “even

21 arrive[] at the substantive due process threshold.” Nunez, 147 F.3d at 874.

22 In opposition, Plaintiff additionally argues “[f]alse representations by social workers in

23 the context of juvenile dependency proceedings have been repeatedly held as a denial of

24 substantive due process as it relates to a plaintiff’s right to familial association.” (ECF No. 17 at

25 21 (citing Huk v. County of Santa Barbara, 650 Fed. App’x. 365; Costanich, 627 F.3d at 1101;

26 Hardwick v. County of Orange, 844 F.3d 1112 (9th Cir. 2017)).) But Plaintiff’s statement, while

27 technically correct, is incorrectly applied to the instant case.

28 In Costanich, for example, the property and liberty interest at issue was the plaintiff’s

1 foster care license. Costanich, 627 F.3d at 1110. The court assumed, without deciding, this was a

2 protected property interest because the defendants had waived argument on that issue. See id. at

3 1114 n. 13, 1116 n.15. Therefore, the court proceeded to the question of whether the defendants

4 violated the plaintiff’s constitutional rights through their purported misrepresentations. Id.; see

5 also Hardwick, 844 F.3d at 1120 (explaining Costanich). Here, Defendants have not waived

6 argument on the protected property interest issue, so Plaintiff may not bypass that initial due

7 process threshold.

8 The ruling in Huk is actually fatal to Plaintiff’s claim. In Huk, the Ninth Circuit

9 acknowledged there is a clearly established right “not to suffer a deprivation of liberty based on

10 fabricated evidence and false representations in child custody proceedings.” Huk, 650 Fed.

11 App’x. at 366. However, after this acknowledgement, the court found there was no protected

12 liberty interest in the continued custody of a foster child. Id. at 367. Therefore, the Ninth Circuit

13 rejected the plaintiffs’ procedural and substantive due process claims, stating “[e]ven if it can be

14 established that [the plaintiffs] were deprived of their custody of their foster child through

15 allegedly deceptive means and without any opportunity to contest the validity or reason behind

16 the removal, they have not and [cannot] demonstrate that their custody of their foster child was a

17 liberty interest protected by the Due Process Clause.” Id.

18 Huk is analogous to the instant case. Like the plaintiffs in Huk, Plaintiff’s argument is

19 focused on the due process protection against false representations in child custody proceedings.

20 See id. at 366. However, also like the plaintiffs in Huk, Plaintiff fails to establish that the

21 purported misrepresentations resulted in the deprivation of a constitutionally protected liberty

22 interest, namely, the right to familial association. See id. at 367. Indeed, as the Court previously

23 determined, Plaintiff cannot establish a deprivation of that right because he was never entitled to

24 its protections. Therefore, as the Ninth Circuit held in Huk, even if Plaintiff established Evans’s

25 purported misrepresentations to the juvenile dependency court deprived him of the opportunity to

26 participate in those proceedings, Plaintiff has not and cannot establish he was deprived of any

27 right to familial association. See id. Thus, Plaintiff’s reliance on the aforementioned authorities

28 is misguided and his argument is unavailing.

1 In short, Plaintiff seeks to bypass the determination of whether the deprivation constituted

2 a protected liberty interest and consider only the purported wrongful actions that caused the

3 deprivation. But he cannot. In light of the aforementioned controlling legal authority and the

4 Court’s prior analysis, Plaintiff fails to allege a violation of his substantive due process rights

5 because he has asserted no cognizable property or liberty interest. The Court expresses

6 skepticism as to whether Plaintiff can allege additional facts that identify some cognizable

7 property or liberty interest in support of his due process claim; however, in an abundance of

8 caution at this early pleading stage, the Court will grant Plaintiff an opportunity to amend.

9 Accordingly, the Court GRANTS Defendants’ Motion to Dismiss with leave to amend.

10 v. § 1983 Monell Liability

11 Plaintiff alleges HSA violated his constitutional right to participate in the juvenile

12 dependency matter and reunite with his biological daughter by failing to “properly train,

13 supervise, retrain, monitor, or take corrective action with respect to individual employees under

14 [its] supervision and control” regarding the “scope and importance of the [Fourteenth]

15 Amendment based rights of familial association” and the “procedures and appropriate course of

16 action in identifying the biological parent. . . .” (See ECF No. 8 ¶¶ 52–56.) Defendants argue

17 Plaintiff has not shown any constitutional violation and where “there is no constitutional

18 violation, the public entity cannot be liable.” (ECF No. 13 at 19) (quoting Long v. City & Cty. of

19 Honolulu, 511 F.3d 901, 907 (9th Cir. 2007)). Defendants further argue Plaintiff has not

20 specified how HSA’s policies and procedures are inappropriate or amount to a constitutional

21 violation. (ECF No. 13 at 19–20.) The Court agrees.

22 “A municipality may not be sued under § 1983 solely because an injury was inflicted by

23 its employees or agents.” Long, 442 F.3d at 1185. “Instead, it is only when execution of a

24 government’s policy or custom inflicts the injury that the municipality as an entity is

25 responsible.” Id.; Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); see also

26 Olvera, 932 F. Supp. 2d at 1166.

27 Where a Monell claim is premised on a policy of omission, such as failure to train or

28 supervise, a plaintiff must show: (1) he possessed a constitutional right of which he was deprived;

1 (2) the municipality had a policy; (3) the policy amounts to deliberate indifference to the

2 plaintiff’s constitutional right; and (4) the policy was the moving force behind the constitutional

3 violation. Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006) (quoting Oviatt v. Pearce,

4 954 F.2d 1470, 1474 (9th Cir. 1992); City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

5 “The custom or policy must be a deliberate choice to follow a course of action . . . made

6 from various alternatives by the official or officials responsible for establishing final policy with

7 respect to the subject matter in question.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075

8 (9th Cir. 2016) (en banc) (internal citations and quotation marks omitted). It must be so

9 “persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563

10 U.S. 51, 61 (2011). Put another way, the practice must have been going on for a sufficient

11 amount of time, such that the “frequency and consistency [of] the conduct has become a

12 traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996);

13 see also McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000) (“A plaintiff cannot demonstrate

14 the existence of a municipal policy or custom based solely on a single occurrence of

15 unconstitutional action by a non-policymaking employee.”)). There also must be a “direct causal

16 link” between the policy or custom and the injury. Anderson, 451 F.3d at 1070 (citations

17 omitted).

18 The Ninth Circuit specifically addressed the circumstances under which a Monell failure

19 to train claim could be asserted:

20 The first is a deficient training program, intended to apply over time

to multiple employees. The continued adherence by policymakers to

21 an approach that they know or should know has failed to prevent

tortious conduct by employees may establish the conscious disregard

22 for the consequences of their action — the “deliberate indifference”

— necessary to trigger municipal liability. Further, the existence of

23 a pattern of tortious conduct by inadequately trained employees may

tend to show that the lack of proper training, rather than a one-time

24 negligent administration of the program or factors peculiar to the

officer involved in a particular incident, is the “moving force” behind

25 the plaintiff’s injury.

26 Long, 442 F.3d at 1186 (citing Bd. of Cty. Comm’rs of Byran Cty. v. Brown, 520 U.S. 397, 407–

27 08 (1997)).

28 Here, despite his broad and sweeping claims that Defendants ignored HSA polices and

1 violated Plaintiff’s rights, Plaintiff does not describe or identify any actual policy that was either

2 wrongful or wrongfully ignored by HSA employees. Therefore, the Court cannot discern any

3 “direct causal link” between the alleged policy and Plaintiff’s purported deprivation. City of

4 Canton, 489 U.S. at 388. Similarly, there are no allegations suggesting Plaintiff’s case amounts

5 to anything more than a “single occurrence of unconstitutional action by a non-policymaking

6 employee.” McDade, 223 F.3d at 1141; Long, 442 F.3d at 1186. Rather, Plaintiff’s claim

7 appears to be based on the one alleged incident that happened to him. Therefore, Plaintiff fails to

8 demonstrate his alleged injury resulted from a “permanent and well settled practice.” Id. But

9 perhaps most importantly, in light of the Court’s ruling on Plaintiff’s First Amendment and

10 Fourteenth Amendment claims, Plaintiff fails to establish any deprivation of a constitutional right.

11 Anderson, 451 F.3d at 1070.

12 For all these reasons, Plaintiff’s Monell claim fails. Nonetheless, to the extent Plaintiff

13 was granted leave to amend his due process claim, an opportunity to amend his Monell claim also

14 appears warranted. Therefore, Defendants’ Motion to Dismiss Plaintiff’s Monell claim is

15 GRANTED with leave to amend.

16 D. State Law Claims

17 Plaintiff asserts the following state law claims: (1) negligence against Evans and HSA

18 (Claim 4); (2) intentional infliction of emotional distress (“IIED”) against Evans (Claim 6); (3)

19 negligent infliction of emotional distress (“NIED”) against Evans (Claim 7); and (4) negligent

20 hiring, retaining, and training against HSA (Claim 5). (ECF No. 8 at 20–24.) With respect to

21 Plaintiff’s negligence, NIED, and IIED claims, Defendants claim Evans is entitled to statutory

22 immunity pursuant to California Government Code § 821.6 (“§ 821.6”), and that HSA is immune

23 where Evans is immune. (ECF No. 13 at 16–19.) In opposition, Plaintiff argues an exception

24 under California Government Code § 820.21 (“§ 820.21”) renders Evans’s § 821.6 immunity

25 inapplicable. (ECF No. 17 at 22–23.) The Court will address each cause of action separately and

26 will address the parties’ immunity arguments within its analysis of each claim. Parkes v. County

27 of San Diego, 345 F. Supp. 2d 1071, 1082–85 (S.D. Cal. 2004) (requiring separate analysis of

28 each claim to determine whether any elements of § 820.21 exist).

1 i. California Government Code §§ 821.6 and 820.21

2 Section 821.6 provides: “A public employee is not liable for injury caused by his

3 instituting or prospecting any judicial or administrative proceeding within the scope of his

4 employment, even if he acts maliciously and without probable cause.” Cal. Gov’t Code § 821.6.

5 California courts have held that § 821.6 “provides complete immunity for social workers (and a

6 county) for their actions taken to investigate, declare children dependents of the county, and cause

7 their removal from parental control.” Ronald S. v. Cty. of San Diego, 16 Cal. App. 4th 887, 899

8 (1993). The immunity provided by § 821.6 is broad. See Gabrielle A. v. Cty. of Orange, 10 Cal.

9 App. 5th 1268, 1285 (2017), as modified (Apr. 18, 2017) (“Immunity applies even to ‘lousy’

10 decisions in which the worker abuses his or her discretion, including decisions based on ‘woefully

11 inadequate information.’”) (citations omitted); see also Masoud v. Cty. of San Joaquin, No.

12 CIV.S-06-1170 FCD EFB, 2006 WL 3251797, at *7 (E.D. Cal. Nov. 8, 2006) (“California courts

13 have applied these immunities quite expansively to social workers, and the protection afforded by

14 these statutes is arguably much broader than the [quasi-prosecutorial or quasi-judicial] federal

15 immunity.”).

16 Section 820.21, however, provides for an exception to § 821.6 immunity. More

17 specifically, § 820.21 abrogates immunity for (1) perjury, (2) fabrication of evidence, (3) failure

18 to disclose known exculpatory evidence, or (4) obtaining testimony by duress, fraud, or undue

19 influence — if committed with malice. Cal. Gov’t Code § 820.21(a); see Beltran v. Santa Clara

20 Cty., 514 F.3d 906, 908 (9th Cir. 2008) (holding social workers “are not entitled to absolute

21 immunity from claims that they fabricated evidence during an investigation or made false

22 statements in a dependency petition affidavit that they signed under penalty of perjury” and

23 reversing dismissal of claim where “much of the information” contained in a dependency petition

24 signed under penalty of perjury was allegedly fabricated); but see Gabrielle A., 10 Cal. App. 5th

25 at 1286 (on summary judgment, granting immunity where allegations were “heavy on speculation

26 and light on facts” and therefore insufficient to establish malice).

27 Malice is defined as “conduct that is intended by the person described in subdivision (a) to

28 cause injury to the plaintiff or despicable conduct that is carried on by the person described in

1 subdivision (a) with a willful and conscious disregard of the rights or safety of others.” Cal.

2 Gov’t Code § 820.21(b). Thus, not only must the act fall into one of the enumerated categories,

3 but it must also be committed with malice. Id. “This is a high bar to clear.” Gabrielle A., 10 Cal.

4 App. 5th at 1285.

5 ii. Negligence

6 Plaintiff claims Evans was negligent because she breached her duty to “communicate true

7 and accurate information” in her “reports, filings, declarations, and other documents submitted to

8 the Juvenile Dependency Court” by “falsely representing that A.R.’s biological father was

9 unknown” to her. (ECF No. 8 ¶¶ 63–64.) Plaintiff claims HSA is vicariously liable for Evans’s

10 negligence under Government Code § 815.2. (Id. at ¶ 67.) The only argument Defendants

11 advance is for § 821.6 immunity. (ECF No. 13 at 16–18.) Defendants argue HSA is immune

12 because Evans is also immune. (Id. at 19.) The Court will address Plaintiff’s claims against each

13 Defendant separately.

14 a) Evans

15 As an initial matter, the Court finds § 821.6’s expansive application of immunity applies

16 to Evans’s actions with respect to investigating A.R.’s case and presenting information to the

17 juvenile dependency court. Gabrielle A., 10 Cal. App. 5th at 1285. Therefore, the Court turns to

18 whether Plaintiff has sufficiently established that § 820.21 — the exception to § 821.6 immunity

19 — applies.

20 Plaintiff argues § 821.6 immunity is inapplicable under § 820.21 because Evans

21 maliciously committed perjury and/or failed to disclose known exculpatory evidence. (ECF No.

22 17 at 22–23.) A review of the non-conclusory, factual allegations asserted in the FAC do not

23 appear to support Plaintiff’s argument. For example, in support of his claim that Evans “knew”

24 he was A.R.’s biological father, Plaintiff alleges: (1) the witness statements he and E.J. provided

25 to the police in 2012 both state Plaintiff was the father of E.J.’s then unborn child (A.R.) (ECF

26 No. 8 ¶ 20); (2) K.R. later told the juvenile dependency court at the April 3, 2013 detention

27 hearing that he was not A.R.’s true father, and his name was not listed on the birth certificate

28 HSA obtained (id. at ¶ 22); and (3) Plaintiff told Defendants that he was A.R.’s biological father

1 (id. at ¶ 31). Noticeably absent from Plaintiff’s allegations are facts showing Plaintiff provided

2 Evans corroborating evidence of his claim that he was A.R.’s biological father, that Evans was

3 present at the April 3, 2013 hearing or otherwise aware of K.R.’s statement, or that K.R.’s

4 legally-binding declaration of paternity was revoked. Further, other allegations — for example,

5 that E.J. told HSA employees the potential fathers were K.R. and R.S. but did not identify

6 Plaintiff, and that K.R. signed the declaration of paternity at A.R.’s birth subsequent to E.J.’s

7 prior witness statement — tend to refute Plaintiff’s claim that Evans knew (or should have

8 known), with a certainty sufficient to represent under oath to the juvenile dependency court, that

9 Plaintiff was A.R.’s biological father.

10 With respect to his claim that Evans intentionally withheld the “exculpatory evidence”

11 contained in the 2012 police report from the juvenile court, Plaintiff’s claim is directly

12 contradicted by his allegation that Defendants attached the 2012 police report — with his and

13 E.J.’s witness statements — to the petition they originally submitted to the juvenile court. (Id. at

14 ¶¶ 18–20.) Whether Plaintiff’s allegations are sufficient to show Evans committed perjury by

15 representing to the juvenile dependency court that she did not know who A.R.’s biological father

16 was appears to be a closer call. In any event, Plaintiff’s conclusory assertion that Evans’s

17 purported “misrepresentation” to the court “was intentional, done with malice and with conscious

18 disregard for the rights of Plaintiff” (id. at ¶ 36), without more, is insufficient to trigger § 820.21.

19 Gabrielle A., 10 Cal. App. 5th at 1286.

20 In his opposition, Plaintiff additionally alleges Evans “refused to acknowledge the police

21 report,” “falsely represented to the juvenile dependency court that she was unaware of anyone

22 else representing themselves to be the biological father of A.R.,” that “Plaintiff had repeatedly

23 contacted [HSA] and communicated” to Evans and others that he was A.R.’s biological father,

24 and that Evans “purposefully failed to disclose information to the juvenile dependency court

25 regarding Plaintiff’s communications so as to make sure that A.R. was adopted out.” (ECF No.

26 17 at 23.) None of these allegations, however, are asserted in the FAC, and the Court cannot

27 consider new facts provided in an opposition brief. Schneider v. Cal. Dep’t of Corr., 151 F.3d

28 1194, 1197 n.1.

1 Nonetheless, the Court declines to apply absolute immunity at this early stage in the

2 litigation, where Plaintiff could possibly cure the identified deficiencies through amendment.

3 Therefore, Defendants’ Motion to Dismiss is GRANTED with leave to amend.

4 b) HSA

5 In light of the Court’s ruling on Plaintiff’s negligence claim against Evans, Plaintiff’s

6 derivative claim against HSA fails. See Gabrielle A., 10 Cal. App. 5th at 1285 (citing Cal. Gov’t

7 Code § 815.2(b) (“Except as otherwise provided by statute, a public entity is not liable for an

8 injury resulting from an act or omission of an employee of the public entity where the employee

9 is immune from liability.”)). However, to the extent Plaintiff was granted leave to amend his

10 negligence claim as asserted against Evans, leave to amend the claim as asserted against HSA is

11 also warranted. Therefore, the Court GRANTS Defendants’ Motion to Dismiss with leave to

12 amend.

13 iii. Negligent Hiring, Retaining, and Training

14 Plaintiff’s negligent hiring, retaining, and training claim against HSA is one of vicarious

15 liability. (See ECF No. 8 ¶¶ 69–74.) Essentially, Plaintiff alleges he was harmed by Evans’s

16 actions, therefore HSA is responsible. (Id.) Defendants move to dismiss this claim on the basis

17 that claims for negligent hiring, retaining, and training may not be asserted against public entities,

18 with a single exception not applicable here.6 (ECF No. 13 at 20–21 (citing Cal. Gov’t Code §

19 815).)

20 Plaintiff provides no statutory basis for his claim. See Hoff v. Vacaville Unified Sch. Dist.,

21 19 Cal. 4th 925, 932 (1998) (“[I]n California, all government tort liability must be based on

22 statute.”) (citing Cal. Gov’t Code § 815(a)). Nor has he opposed Defendants’ Motion, thus

23 conceding Defendants’ arguments. Accordingly, the Court DISMISSES Plaintiff’s claim against

24 HSA for negligent hiring, retaining, and training without leave to amend.

25 ///

26

27 6 The only time a negligent hiring, retaining, and training claim may be brought against a

public entity is in the context of a lawsuit by a student against a school. See C.A. v. William S.

28 Hart Union High School, 53 Cal. 4th 861 (2012).

1 iv. Intentional Infliction of Emotional Distress

2 A claim for IIED under California law requires the plaintiff to establish “extreme and

3 outrageous conduct by the defendant with the intention of causing, or reckless disregard [for] the

4 probability of causing, emotional distress.” Nunes v. Cty. of Stanislaus, No. 1:17-cv-00633-

5 DAD-SAB, 2017 WL 3670926, at *16 (E.D. Cal. Aug. 25, 2017) (quoting Ravel v. Hewlett-

6 Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D. Cal. 2017)). To amount to extreme and

7 outrageous conduct, the actions “must be so extreme as to exceed all bounds that are usually

8 tolerated in a civilized community.” Id. (quoting Cochran v. Cochran, 65 Cal. App. 4th 488, 494

9 (1998)); see Hamilton v. Prudential Fin., No. 2:07-cv-00944-MCE-DAD, 2007 WL 2827792, at

10 *3 (E.D. Cal. Sept. 27, 2007) (“On the spectrum of offensiveness, outrageous conduct is the most

11 extreme or severe form of offensiveness, and anything less is without legal recourse.”) (citation

12 omitted).

13 Plaintiff claims Evans is liable for IIED because she intended to cause Plaintiff’s

14 emotional distress through her “outrageous conduct” and “Plaintiff must now live without any

15 legal right to associate with, contact, or otherwise interact with his daughter.” (ECF No. 8 ¶¶ 76–

16 78.) This claim appears to be based on the same allegations that supported Plaintiff’s negligence

17 claim. Defendants again assert immunity under § 821.6, which Plaintiff disputes based on §

18 820.21. (ECF No. 13 at 16–18; ECF No. 17 at 22–23.) Defendants additionally argue the

19 allegations are insufficient to state an IIED claim, which Plaintiff does not substantively address.

20 (ECF No. 13 at 21; see also ECF No. 17 at 8 (in the introduction of his opposition, Plaintiff only

21 states he has properly asserted his “related state law claims.”).)

22 For the same reasons discussed with respect to Plaintiff’s negligence claim, § 821.6

23 applies and the allegations do not support an application of § 820.21. On the merits, the same

24 lack of factual allegations that preclude a finding of “malice” under § 820.21 are also fatal to the

25 intent element of Plaintiff’s IIED claim. Moreover, the Court is not persuaded Plaintiff has

26 established the causation or extreme and outrageous elements of the claim based on the

27 ///

28 ///

1 aforementioned factual allegations.7 See Schlauch v. Hartford Accident & Indem. Co., 146 Cal.

2 App. 3d 926 (1983) (in bad-faith claim against insurer who delayed payment of policy limits for

3 third-party claim with undisputed liability for 2.5 years, finding mere assertion that defendant

4 “acted outrageously and with intent to inflict emotional distress” by failing to accept settlement

5 offer and violating statutory duties under Cal. Ins. Code “does not in itself constitute the type of

6 outrageous conduct which will support” an IIED claim).

7 However, for the same reasons previously discussed, permitting Plaintiff an opportunity to

8 cure the identified deficiencies through amendment appears warranted. Therefore, Defendants’

9 Motion to Dismiss is GRANTED with leave to amend.

10 v. Negligent Infliction of Emotional Distress

11 Plaintiff argues Evans’s negligence in misrepresenting information related to A.R.’s

12 biological father caused Plaintiff to suffer “severe emotional distress, anxiety[,] and general

13 damage to [his] psyche.” (ECF No. 8 ¶ 82.) This claim appears to be based on the same

14 allegations that supported Plaintiff’s negligence and IIED claims.

15 Defendants again assert immunity under § 821.6, which Plaintiff disputes based on §

16 820.21. (ECF No. 13 at 16–18; ECF No. 17 at 22–23.) Defendants additionally argue Plaintiff’s

17 NIED claim is inapplicable as a matter of law, which Plaintiff does not dispute. (ECF No. 13 at

18 21.) Plaintiff again fails to rebut a finding of § 821.6 immunity through § 820.21, for the reasons

19 previously discussed. Plaintiff also fails to state a claim for NIED as a matter of law.

20 “Where there is a claim for the ‘negligent infliction of emotional distress,’ the plaintiff

21 must be either a ‘direct victim’ of the wrongful conduct, or, with certain qualifications, a

22 bystander[] (i.e., ‘percipient witness to the injury of another’).” Smith v. Pust, 19 Cal. App. 4th

23 263, 273 (1993) (citations omitted). As Defendants discuss in their Motion, a “direct victim”

24 claim arises only in three scenarios: (1) mishandling of corpses, (2) misdiagnosis of a disease, and

25

26 7 However, Plaintiff sufficiently alleges the “severe or extreme emotional distress” element

of the claim based on his allegation that he suffered “severe emotional distress, anxiety and

27 general damage to his psyche, to such an extent as to cause physical manifestations of pain” from

his inability to connect with his biological daughter. (ECF No. 8 ¶ 35); see Hamilton, 2007 WL

28 2827792, at *4.

1 (3) breach of a duty from a preexisting relationship. (ECF No. 13 at 21 (citing Christensen v.

2 Superior Court, 54 Cal. 3d 868, 879 (1991); Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, 923

3 (1980); Burgess v. Superior Court, 2 Cal. 4th 1064, 1076 (1992)).) Plaintiff does not allege any

4 of these scenarios in his FAC, so by default, the Court presumes he is raising a bystander claim.

5 A bystander claim requires that the bystander: “(1) is closely related to the injury victim;

6 (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that

7 it is causing injury to the victim; and (3) as a result suffers serious emotional distress — a

8 reaction beyond that which would be anticipated in a disinterested witness and which is not an

9 abnormal response to the circumstances.” Thing v. La Chusa, 48 Cal. 3d 644, 667–68 (1989).

10 Plaintiff cannot satisfy the second prong of the test because he was not present at the

11 injury-producing event. Namely, he never attended or participated in any of the court

12 proceedings that resulted in the termination of his potential parental rights. Id. Plaintiff does not

13 propose any facts he could allege to cure this defect, nor can the Court imagine any. Nor does

14 Plaintiff address Defendants’ argument in his opposition. Therefore, the Court DISMISSES

15 Plaintiff’s NIED claim without leave to amend.

16 IV. CONCLUSION

17 For the foregoing reasons, the Court hereby GRANTS IN PART and DENIES IN PART

18 Defendants’ Motion to Dismiss (ECF No. 13) as follows:

19 1. Defendants’ Motion to Dismiss the action based on Federal Rule of Civil Procedure

20 4(m) is DENIED;

21 2. Defendants’ Motion to Dismiss Plaintiff’s claims against Saga-Matsumoto is

22 GRANTED and Saga-Matsumoto is DISMISSED without prejudice;

23 3. Defendants’ Motion to Dismiss Plaintiff’s claim for First Amendment interference

24 with familial association (Claim 1) is GRANTED without leave to amend;

25 4. Defendants’ Motion to Dismiss Plaintiff’s claim for violations of procedural and

26 substantive due process under the Fourteenth Amendment (Claim 2) is GRANTED

27 with leave to amend;

28 5. Defendants’ Motion to Dismiss Plaintiff’s claim for § 1983 Monell liability (Claim 3)

1 is GRANTED with leave to amend;

2 6. Defendants’ Motion to Dismiss Plaintiff’s negligence claim (Claim 4) is GRANTED

3 with leave to amend as asserted against both Evans and HSA;

4 7. Defendants’ Motion to Dismiss Plaintiff’s claim for negligent hiring, retaining, and

5 training (Claim 5) is GRANTED without leave to amend;

6 8. Defendants’ Motion to Dismiss Plaintiff’s claim for intentional infliction of emotional

7 distress (Claim 6) is GRANTED with leave to amend; and

8 9. Defendants’ Motion to Dismiss Plaintiff’s claim for negligent infliction of emotional

9 distress (Claim 7) is GRANTED without leave to amend.

10 Plaintiff may file an amended complaint not later than 30 days from the date of electronic

11 | filing of this Order. Defendants’ responsive pleading is due 21 days after Plaintiff files an

12 | amended complaint.

13 ITIS SO ORDERED.

14 | DATED: March 31, 2021

15 > /)

16 “ \/ of

17 ane EN NL

Troy L. Nunley» }

18 United States District Judge

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