# D.C. v. County of San Diego

> District Court, S.D. California · September 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10079582

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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4 UNITED STATES DISTRICT COURT
5 SOUTHERN DISTRICT OF CALIFORNIA
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7 D.C., J.C., and T.C., by and Case No.: 18-cv-0013-WQH-MSB
through their guardian,
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MELANIE CABELKA; and ORDER
9 MELANIE CABELKA,
individually,
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Plaintiffs,
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v.
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COUNTY OF SAN DIEGO;
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SARAH WILSON; CARLOS
14 OMEDA; FATIMAH
ABDULLAH; MARILYN
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SPROAT, and DOES 1-100,
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Defendants.
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HAYES, Judge:
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The matters before the Court are 1) the Motion to Dismiss the Second Amended
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Complaint filed by Defendants Sarah Wilson, Carlos Olmeda,1 Fatimah Abdullah, and
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Marilyn Sproat (ECF No. 75); 2) the Motion to Strike a Non-Party Minor’s Confidential
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Information and Seal the Complaints filed by all Defendants (ECF No. 76); 3) the Motion
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to Dismiss the Second Amended Complaint filed by Defendant County of San Diego (ECF
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No. 77); 4) the Motion to Appoint a Neutral Guardian Ad Litem filed by Defendants (ECF
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No. 74); and 5) the Ex Parte Motion to Appoint Melanie Cabelka as Guardian Ad Litem
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filed by Plaintiffs (ECF No. 81).
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1 I. BACKGROUND
2 A. Procedural History
3 On February 28, 2019, Plaintiffs Melanie Cabelka and her minor children, D.C.,
4 T.C., and J.C., filed a Second Amended Complaint against Defendants County of San
5 Diego (the “County”), Sarah Wilson, Carlos Olmeda, Fatima Abdullah, Marilyn Sproat,
6 and Does 1 through 100 (the “SAC”). (ECF No. 67). The SAC is the operative complaint
7 in this matter.2 Plaintiffs allege 1) first claim against Wilson, Olmeda, Abdullah, and Sproat
8 (collectively, the “Social Services Defendants”) for “Violation of Federal Civil Rights
9 Pursuant to United States Code, Title 42, § 1983” (id. at 28); 2) second claim against the
10 County for “Monell Related Claims 42 U.S.C. § 1983” (id. at 34) and negligence (id. at
11 38); and 3) state law claims against all Defendants for direct negligence (id. at 38),
12 negligent and/or intentional misrepresentation (id. at 41), and intentional infliction of
13 emotional distress (id. at 43). Plaintiffs seek general damages, special damages, punitive
14 damages, interest, attorneys’ fees, and costs. Id. at 44.
15 On May 29, 2019, Motions to Dismiss the SAC were filed by the Social Services
16 Defendants (ECF No. 75) and the County (ECF No. 77). On May 29, 2019, Defendants
17 collectively filed a Motion to Strike and Seal the Complaints (ECF No. 76) and a Motion
18 to Appoint a Guardian Ad Litem (ECF No. 74). On June 12, 2019, Plaintiffs filed an Ex
19 Parte Motion to Appoint a Guardian Ad Litem. (ECF No. 81). On the same day,
20 Defendants filed a Response to Plaintiffs’ Ex Parte Motion. (ECF No. 82).
21 On June 24, 2019, Plaintiffs filed Responses to Defendants’ Motion to Appoint a
22 Guardian Ad Litem (ECF No. 86) and Motion to Strike (ECF No. 87). On July 1, 2019,
23 Defendants filed Replies in support of their Motion to Appoint a Guardian Ad Litem (ECF
24 No. 88) and Motion to Strike. (ECF No. 89). On July 23, 2019, Plaintiffs filed a Response
25 to the Social Services Defendants’ Motion to Dismiss (ECF No. 92), a Response to the
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2 The original, sealed, Complaint was filed on January 3, 2018. (ECF No. 1). The First Amended
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1 County’s Motion to Dismiss (ECF No. 93), and Requests for Judicial Notice in support of
2 both Responses (ECF Nos. 92-1, 93-1).3
3 On August 16, 2019, both the Social Services Defendants (ECF No. 96) and the
4 County (ECF No. 97) filed Replies in support of their respective Motions to Dismiss.
5 Defendants also collectively filed a Response to Plaintiffs’ Requests for Judicial Notice.
6 (ECF No. 98). On August 21, 2019, Defendants filed a Request for Judicial Notice in
7 support of their Motions to Dismiss (ECF No. 99).4
8 B. Factual Allegations in the SAC
9 Plaintiff Melanie Cabelka adopted her children, T.C., D.C., and J.C., prior to March
10 2015 after their successful foster or adoptive placements in Cabelka’s home. (ECF No. 67
11 ¶¶ 23, 27). T.C. was born in 2003 (id. ¶ 4), D.C. was born in 2004 (id. ¶ 5), and J.C. was
12 born in 2009 (id. ¶ 6).
13 Plaintiffs allege that prior to March 2015, D.G., who is not a party to this action, was
14 a dependent of the Court “in the foster system.” Id. ¶¶ 30, 118. Plaintiffs allege that
15 Defendants were “responsible for the evaluation, placement, supervision, and well-being”
16 of D.G. Id. at ¶ 118. D.G. allegedly had a history of “fecal smearing, expressed suicidal
17 thoughts, violent physical outbursts culminating in the destruction of property, and
18 sexually aggressive and deviant behaviors.” Id. ¶ 45. Plaintiffs allege D.G. had “been
19 exposed to sexual abuse” (id. ¶ 36) and “had been removed from his immediately prior
20 adoptive placement . . . because he had been sexually molesting another male child . . . .”
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23 3 Plaintiffs’ request for judicial notice is granted as to the “WIC § 827 Order Granting Access to D.G.’s
Records.” (ECF Nos. 92-1 at 3, Exhibit F; 93-1 at 2, Exhibit I); see U.S. ex rel Robinson Rancheria
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Citizens Council v. Borneo, 971 F.2d 244 (9th Cir. 1992) (the Court “may take notice of proceedings in
25 other courts, both within and without the federal judicial system, if those proceedings have a direct relation
to matters at issue”). Judicial notice of the other requested documents is unnecessary for this Order.
26 Plaintiffs’ additional requests for judicial notice are denied. See Asvesta v. Petroustas, 580 F.3d 1000,
1010 n. 12 (9th Cir. 2009) (denying request for judicial notice where judicial notice would be
27 “unnecessary”).
4 Judicial notice of the requested document is unnecessary for this Order. Defendants’ request for judicial
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1 Id. at 36. Plaintiffs allege Defendants had access to information about D.G.’s history of
2 medical, behavioral, and psychological problems, including “CWS/CMS records” (id. ¶¶
3 37, 45, 50, 63) and “reports from both prior foster parents and D.G.’s school” (id. ¶ 35).
4 Cabelka accepted D.G. into her home as a foster child in March 2015. Id. ¶ 29.
5 Plaintiffs allege that before Cabelka accepted D.G. into her home, she asked Sproat, a
6 County placement worker, how many prior placements D.G. had been in and why the prior
7 placements failed. Id. ¶ 33. Sproat allegedly told Cabelka that “there was no issue with
8 [D.G.], it was not [his] fault . . . ” (id.) and that D.G. had “great behaviors.” (id. ¶ 30).
9 Plaintiffs allege Cabelka asked D.G.’s social worker’s supervisor, Abdullah:
10 . . . if she knew anything about the history of [D.G], and if there was anything
[Cabelka] should know about [him] before she committed to [his] placement
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in her home. Specifically, [Cabelka] asked Abdullah if she had any
12 information regarding why D.G.’s prior adoptive placement failed. Abdullah
refrained from telling [Cabelka] the truth and instead stated that the prior
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adoptive placements had not ‘failed.’ Abdullah reiterated — falsely, what a
14 great kid D.G. was, and how he had no problems other than those medical
problems already disclosed by Sproat, i.e., spina bifida, which was well in
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hand.
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17 Id. ¶ 38. Plaintiffs allege that all of the Defendants knew or should have known D.G.’s
18 history and “actively conceal[ed] D.G.’s past aberrant behaviors,” placing Cabelka and her
19 children at risk. Id. ¶¶ 120-122. Defendants allegedly “actively suppressed this information
20 from [Cabelka] and refrained from disclosing it out of concern that if they had disclosed
21 all of the relevant information to [Cabelka], she would refuse to allow D.G. into her home.”
22 Id. ¶ 31.
23 Plaintiffs allege that from March 2015 through July 2016, Cabelka observed, or was
24 informed by D.G.’s school about, various behavioral issues including poor hygiene (id. ¶
25 43), fecal smearing (id. ¶¶ 45, 46), suicidal thoughts and anger issues (id. ¶ 46), severe
26 violent “outbursts” and “meltdowns” (id. ¶¶ 53, 66), and watching “homosexual child
27 pornography” (id. ¶¶ 57-61). Cabelka allegedly contacted Defendants numerous times to
28 report these incidents and inquire about D.G.’s history. Id. ¶¶ 43-66. Plaintiffs allege:
1 Despite DEFENDANTS’ knowledge of D.G’s propensities for sexual and
physical violence and outbursts, and [Cabelka’s] persistent reporting and
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pleas for help, DEFENDANTS, and each of them, failed to take any action to
3 remove this dangerous child, D.G., from [Cabelka’s] home, or even to warn
[Cabelka] of his known dangerous propensities.
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5 Id. ¶ 67.
6 Plaintiffs allege that on August 8, 2016, D.G. “violently sodomize[d] D.C.” Id. ¶ 68.
7 Cabelka reported the incident to Wilson, D.G.’s social worker, and requested D.G. be
8 removed from her home, but Wilson did not remove D.G. Id. ¶ 75. Plaintiffs allege that
9 “[o]n October 20, 2016, D.G. sexually assaulted T.C.” Id. ¶ 76. Cabelka allegedly told
10 Wilson that Cabelka “was incapable of controlling the situation and was concerned about
11 her own safety and the safety of her children . . . .” Id. ¶ 87. Wilson “advised that Social
12 Services would take care of things and directed [Cabelka] to continue on with D.G. in the
13 home, and not to report his behaviors to the police.” Id. Plaintiffs allege that “[o]n January
14 21, 2017, D.G. sexually assaulted J.C.” Id. ¶ 90. “Even after creating the initial danger . . .
15 and even after learning of D.G.’s then current sexual behaviors and molestations,
16 Defendants failed to take any action to prevent further harm to the Cabelka family . . . .”
17 Id. ¶ 123.
18 II. MOTIONS TO DISMISS
19 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a
20 claim upon which relief can be granted.” In order to state a claim for relief, a pleading
21 “must contain . . . a short and plain statement of the claim showing that the pleader is
22 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) “is proper only
23 where there is no cognizable legal theory or an absence of sufficient facts alleged to support
24 a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035,
25 1041 (9th Cir. 2010) (quotation omitted).
26 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
27 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
28 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
1 “A claim has facial plausibility when the plaintiff pleads factual content that allows the
2 court to draw the reasonable inference that the defendant is liable for the misconduct
3 alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’
4 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
5 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
6 (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as true allegations that are
7 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell
8 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
9 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual
10 content, and reasonable inferences from that content, must be plausibly suggestive of a
11 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
12 Cir. 2009) (quotation omitted). If both parties advance plausible alternative explanations,
13 then the “plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6),” because
14 “[t]he standard at this stage of the litigation is not that plaintiff’s explanation must be true
15 or even probable.” Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (“Plaintiff’s
16 complaint may be dismissed only when defendant’s plausible alternative explanation is so
17 convincing that plaintiff’s explanation is im plausible.”).
18 Plaintiffs’ first and second causes of action are brought under 42 U.S.C. § 1983,
19 which provides a cause of action against any person who, under color of state law, deprives
20 any citizen of any rights, privileges, or immunities secured by the Constitution and laws of
21 the United States. Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987); see
22 Wyatt v. Cole, 504 U.S. 158, 161 (1992)
23 Plaintiffs allege in the first cause of action that they are entitled to relief under §
24 1983 because the Social Services Defendants violated provisions of the Adoption
25 Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620 et seq. (2019) (the “Adoption
26 Act”), and various state laws and regulations (ECF No. 67 ¶¶ 105-117). In the second cause
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1 of action, Plaintiffs allege “Monell Related Claims 42 U.S.C. § 1983” against the County
2 for violations of the Adoption Act (ECF No. 67 ¶ 128) and “California law” (id. ¶ 134).
3 Plaintiffs contend in their Responses to Defendants’ Motions to Dismiss that the
4 SAC alleges § 1983 claims against Defendants based on “substantive due process rights”
5 under the Fourteenth Amendment of the United States Constitution. (ECF No. 92 at 15-17;
6 ECF No. 93 at 14). The Social Services Defendants contend the SAC does not allege a
7 substantive due process claim, and Plaintiffs “did not provide fair notice of the claim as
8 required by Federal Rule of Civil Procedure 8.” (ECF No. 96 at 2).
9 The SAC does not allege a due process or Fourteenth Amendment claim. Plaintiffs
10 have not given Defendants “fair notice of what the . . . claim is and the grounds upon which
11 it rests.” Twombly, 550 U.S. at 555 (quotation omitted). However, Plaintiffs request leave
12 to amend in the event the Court dismisses the claims in the SAC. Accordingly, the Court
13 grants Plaintiffs leave to amend the Complaint within 14 days of this Order. Should
14 Plaintiffs fail to file an amended complaint within 14 days, the Court will rule on
15 Defendants’ Motions to Dismiss the SAC.
16 III. MOTIONS TO APPOINT A GUARDIAN AD LITEM
17 Fit parents are presumed to act in the best interests of their children. Troxel v.
18 Granville, 530 U.S. 57, 68 (2000). “Generally, when a minor is represented by a parent
19 who is a party to the lawsuit and who has the same interests as the child there is no inherent
20 conflict of interest.” Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001).
21 Cabelka is the mother of minors D.C., T.C., and J.C. and represents that “Ms.
22 Cabelka is fully competent and qualified to understand and protect D.C., J.C., and T.C.’s
23 rights and interests. Ms. Cabelka has no known interests adverse to those of her children.”
24 (ECF No. 81 ¶ 5). Defendants contend that Cabelka and her children have a potential
25 conflict of interest because one party may wish to settle while another wishes to pursue
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5 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693 (1978), established parameters for when entities can
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1 litigation, or one party may wish to voluntarily dismiss a claim while the other wishes to
2 continue litigating. (ECF No. 74-1 at 4). Defendants request the Court appoint neutral
3 guardian ad litem to represent D.C., T.C., and J.C.’s interests instead of Cabelka. Id. at 6.
4 No conflict of interest between Cabelka and the minor Plaintiffs is apparent at this
5 time. Cabelka has the same interests in this case as her children. The Court will follow the
6 general presumption and allow the minors’ parent to represent their interests. Burke, 252
7 F.3d at 1264.
8 IV. MOTION TO STRIKE AND SEAL THE COMPLAINT
9 “Historically, courts have recognized a ‘general right to inspect and copy public
10 records and documents, including judicial records and documents.’” Kamakana v. City and
11 Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner
12 Communs., Inc., 435 U.S. 589, 597 & n.7 (1978)). “A party seeking to seal a judicial record
13 then bears the burden of overcoming this strong presumption by meeting the compelling
14 reasons standard. That is, the party must articulate compelling reasons supported by
15 specific factual findings . . . that outweigh the general history of access and the public
16 policies favoring disclosure . . . .” Kamakana, 447 F.3d at 1178-79 (quotations omitted).
17 The presumed right to access to court proceedings and documents can be overcome “only
18 by an overriding right or interest ‘based on findings that closure is essential to preserve
19 higher values and is narrowly tailored to serve that interest.’” Oregonian Publ’g Co. v. U.S.
20 Dist. Ct., 920 F.2d 1462, 1465 (9th Cir. 1990) (quoting Press-Enter. Co. v. Sup. Ct., 446
21 U.S. 501, 510 (1985)).
22 “Under the compelling reasons standard, the district court must weight relevant
23 factors, base its decision on a compelling reason, and articulate the factual basis for its
24 ruling, without relying on hypothesis or conjecture.” Pintos v. Pac. Creditors Ass’n, 605
25 F.3d 665, 659 (9th Cir. 2010) (quotations omitted). “‘Relevant factors’ include the ‘public
26 interest in understanding the judicial process and whether disclosures of the material could
27 result in improper use of the material for scandalous or libelous purposes or infringement
28 upon trade secrets.’” Id. at 659 n. 6 (citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th
1 Cir. 1995)); see also Kamakana, 447 F.3d at 1179 (“In general, compelling reasons
2 sufficient to outweigh the public’s interest in disclosure and justify sealing court records
3 exist when such court files might have become a vehicle for improper purposes, such as
4 the use of records to gratify private spite, promote public scandal, circulate libelous
5 statements, or release trade secrets.” (quotations omitted)).
6 Defendants request the Court seal both the SAC and FAC.6 (ECF No. 76-1 at 5).
7 Defendants contend that compelling reasons to seal the complaints include that the SAC
8 “includes confidential information about a child’s medical and mental health, including
9 juvenile court involvement,” “media reports have repeated the allegations from the
10 complaints,” and the information contained in the complaints “could have a grave impact
11 on a minor’s future livelihood.” Id. at 5. Plaintiffs contend that the complaints do not
12 contain any confidential information, and the information in the complaints has been public
13 for months. (ECF No. 87 at 7, 9).
14 The Court finds Defendants’ Motion to Seal does not set forth a compelling reason
15 “supported by specific factual findings” that outweigh the general policy of publicly
16 disclosing documents filed with the Court. Kamakana, 447 F.3d at 1178-79. The
17 complaints do not contain any information sufficient to identify the minors such as social
18 security numbers, names, dates of birth, financial account numbers, or home addresses.
19 The Motion to seal the entirety of two complaints is overbroad and not “narrowly tailored”
20 to serve a compelling interest.
21 ///
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23 ///
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6 Defendants also request the Court strike certain paragraphs of the SAC that contain “confidential
26 information contained in D.G.’s juvenile case file” (ECF No. 76-1 at 2), because “Plaintiffs have not yet
received an order from the [juvenile] court releasing D.G’s records.” Id. at 4. Plaintiffs submitted an Order
27 from the juvenile court releasing D.G.’s records, which this Court took judicial notice of. (ECF No. 92-1,
Ex. F; ECF No. 93-1, Ex. I). Accordingly, the Court denies Defendants’ request to strike portions of the
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CONCLUSION
2 IT IS HEREBY ORDERED that Plaintiffs are given leave to amend their Complaint
3 || within 14 days of this Order. If Plaintiff have not filed an amended complaint within 14
4 || days, the Court will rule on Defendants Motions to Dismiss the SAC.
5 IT IS FURTHER ORDERED that Melanie Cabelka is appointed as the guardian ad
6 || litem for minors D.C., T.C., and J.C. Defendants’ Motion to Appoint a Neutral Guardian
7 || Ad Litem (ECF No. 74) is DENIED. Plaintiffs’ Ex Parte Motion to Appoint Melanie
8 || Cabelka as Guardian Ad Litem (ECF No. 81) is GRANTED.
9 Defendants’ Motion to Strike and Seal the Complaints (ECF No. 76) is DENIED.
10 || Dated: September 19, 2019 BME: ie Z. A a
1] Hon. William Q. Hayes
2 United States District Court
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079582. Public record. Not legal advice.