The opinion
Filed 1/7/25 Lopez v. County of Los Angeles CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
VIVEANA LOPEZ et al., B327598
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19AVCV00601)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen Morgan, Judge. Affirmed.
Offices of Sanford Jossen, Sanford Jossen for Plaintiffs and
Appellants.
Peterson, Bradford, Burkwitz, Gregorio, Burkwitz & Su,
Avi Burkwitz, Gil Burkwitz and Avery Canty for Defendants and
Respondents.
___________________________________
Appellants Viveana Lopez and Omar Duron Rodriguez, the
parents of 18-month-old SLD, filed a civil rights action against
the County of Los Angeles and three of its employees, social
workers Yesenia Serrano, Vilma Hernandez, and Rina Mejia,
alleging that these defendants fabricated allegations supporting a
dependency petition. The petition resulted in the juvenile court
placing SLD in a foster home, where she died after asphyxiating
on a peanut. Lopez and Rodriguez appeal from a judgment
entered in favor of the County defendants after the trial court
granted their motion for summary judgment. They argue that
triable issues of material fact exist on several issues. We
disagree, and thus affirm the judgment.
BACKGROUND
A. Introduction
The County Department of Children and Family Services
(DCFS) received an anonymous referral about Lopez and
Rodriguez getting into an argument with SLD present. DCFS
filed reports and a petition with the juvenile court, which ordered
SLD detained and suitably placed away from the parents. DCFS
placed SLD in a foster home where, four months later, she
asphyxiated on a peanut and died.
Lopez and Rodriguez represent that when the foster
parents were not watching, another foster child gave SLD trail
mix, and she asphyxiated in her sleep. They sued the foster
parents and foster agency for wrongful death, and that litigation
is concluded. The foster parents and foster agency are not part of
this appeal.
Lopez and Rodriguez also sued the County and three of its
employees for statutory and civil rights violations. The primary
2
thrust of their complaint against the County and its employees is
not that they caused SLD’s death, but that they caused her
wrongful detention, which ultimately led to her death.
B. Referrals and Reports
1. Prior Incidents
Lopez had three other children, M.C., A.P., and H.P., with
two other fathers. Lopez lost parental rights to M.C. in 2010
following a domestic violence dispute that occurred in the child’s
presence, and lost custody of A.P. and H.P. in 2015. These
children then lived with their fathers.
SLD was born on March 13, 2017. On September 12, 2017,
an anonymous caller reported to DCFS that SLD was riddled
with rashes and that Lopez was constantly intoxicated. DCFS
social worker Shannen Gonzalez investigated. Gonzalez found
Lopez to be lucid and appropriate with SLD, and although she
tested positive for marijuana, she had a medical marijuana card.
Lopez tested negative for alcohol and other drugs. Gonzalez
observed that the home was clean and SLD had no rashes, and
the father of A.P. and H.P. reported he had no “worries or
concerns” about Lopez. Gonzalez concluded the allegations were
unfounded and recommended that the referral be closed because
the “situation [was] stabilized,” stating: “At this time CSW has
not found children to be in imminent risk and does not require
further DCFS and/or court involvement.” DCFS closed the
referral.
2. The March 14, 2018 Incident
On March 15, 2018, an anonymous caller to the County’s
Child Protective Hotline reported that on March 14, Lopez and
3
Rodriguez were involved in a domestic dispute in the presence of
SLD. According to the caller, Lopez asked Rodriguez to leave the
house but he refused. When she tried to leave with SLD, he
pushed her shoulder. She left with SLD in her car but Rodriguez
pursued in his car, driving erratically. The caller reported that
Lopez ultimately stopped “and began running on foot until she
flagged down” police. Rodriguez was arrested.
DCFS assigned the matter to Serrano, an Emergency
Response Unit social worker, who was supervised by Mejia.
Serrano reviewed prior DCFS investigative summaries and
dependency court proceedings regarding Lopez and her other
children, M.C., A.P., and H.P., and interviewed Lopez, Rodriguez,
SLD’s maternal grandmother, and A.P., H.P., and their father.
a. Police Report
Serrano also received a police report that was ultimately
excluded in the proceedings below due to lack of authentication.
Although the report was excluded, we will outline some of the
contentions it contained, not for their truth but for their effect on
Serrano’s decisionmaking.
The report stated that Lopez, the “victim,” reported that in
the March 14 incident, Rodriguez, the “dominant aggressor,”
“struck[] her on her right shoulder area with open hand” while
SLD was present. The report continued:
“The victim said that she exited her apartment and left in
her vehicle with her child to get away from the suspect, but the
suspect entered his vehicle and followed her. . . . [W]hile she was
driving, [Rodriguez] was in his vehicle, driving behind her
flashing his headlights at her causing a hazard and a very
dangerous situation as she was attempting to get away from
4
him. . . . [W]hile driving, she called the suspect and told him to
stop following her and to stop flashing his lights at her because
she feared that she was going to have an accident with their child
inside the vehicle. [¶] The victim said that when the suspect
continued to follow her, she stopped her vehicle and parked. . . .
[S]he exited her vehicle and fled on foot with her child. . . . [T]he
suspect parked his vehicle behind her vehicle and followed her on
foot, until they flagged down a San Fernando PD patrol unit. [¶]
When the victim found out that the suspect was going to be
arrested, she changed her story. The victim originally said that
she was struck on the chest, but later said that the suspect only
touched her very lightly on the right shoulder area. The victim
said that she was not in fear, however, she will go to the
courthouse to obtain a restraining order against the suspect. [¶]
The victim appeared to have been crying and was very upset.
[She] was very distraught and was genuinely concern[ed] about
her safety and the safety of her child.”
Police also interviewed Rodriguez, and detailed his
statement:
“Rodriguez said that on 03/14/18 at approximately 1930
hours he was inside the motel room with the victim and their
child when an argument ensued over money. The victim became
angry, got on top of the bed to prevent him from getting close to
[SLD]. The victim then kicked him twice on the chest. Rodriguez
said that he did not fall to the ground, and was able to hold her
leg the second time. . . . [Lopez] then got down from the bed and
kicked him on his testicles. [¶] Rodriguez said that the victim
grabbed their child from the bed and attempted to leave. . . . [He]
followed the victim in his vehicle because he . . . feared for the
safety of his child.”
5
b. Other Incidents
Serrano learned that a 2010 dependency petition alleged
Lopez engaged in a violent altercation with her brother (a minor),
in the presence of M.C., striking her brother with a hot frying
pan, which caused him first- and second-degree burns. M.C. was
placed in the custody of her father, and Lopez failed to comply
with dependency court orders and ultimately failed to reunify
with the child.
Serrano learned A.P.’s and H.P.’s father obtained custody of
these children after dependency proceedings and filed a
temporary restraining order against Lopez. The court ordered
Lopez to attend a batterer prevention program, which she failed
to do.
Serrano learned that in September 2017, a referral was
generated alleging Lopez abused drugs and neglected SLD.
Serrano contacted Gonzalez, whose investigation into this
referral revealed no signs of neglect. Gonzalez told Serrano that
Lopez refused to provide information about Rodriguez, denied
any domestic violence between them, and reported she had no
contact with Rodriguez, although an LAPD report indicated he
was at her home on August 1, 2017. Gonzalez stated she
submitted a Prevention and Aftercare referral for Lopez upon
closing the DCFS referral.
Serrano interviewed Lopez, who denied any domestic
violence between herself and Rodriguez during the March 14
incident, and admitted she did not take advantage of Gonzalez’s
Prevention and Aftercare referral. Lopez reported that Rodriguez
had returned home from his arrest.
Serrano interviewed Rodriguez, who admitted he was in
contact with Lopez at the time of the September 2017 referral,
6
contradicting Lopez’s statement to Gonzalez that she had no
contact with Rodriguez at that time.
Neither Lopez nor Rodriguez provided information of
relatives who might be able to take temporary custody of SLD.
C. Detention Proceedings
1. Warrant Request
Serrano concluded that Lopez and Rodriguez had
significantly underplayed the nature and circumstances of their
dispute and that both were active participants in the domestic
violence that occurred during the March 14 incident. She
consulted with Mejia and determined that there was a high risk
of harm to SLD due to Lopez’s prior referral history and failure to
reunify in prior DCFS cases, her dishonest statements to social
workers about domestic violence and the March 14 incident, her
“history of aggressive behavior and failure to comply with court
orders or complete any program,” and the fact that Rodriguez had
been arrested for intimate partner battery. They determined
SLD should be removed from both parents.
On April 10, 2018, four weeks after the March 14 incident,
Serrano, crediting DCFS records and the March 14 police report,
filed a request for a warrant for temporary custody of SLD. In
the request, Serrano asserted under penalty of perjury in a
Statement of Cause that she had received information that:
(1) Lopez told police about the March 14 incident, and said
that Rodriguez “struck[] her on her right shoulder with an open
hand” while SLD was present;
(2) Rodriguez told police that Lopez “assaulted” him
“approximately ten times during the course of their relationship,”
and in the March 14 incident “kicked” him several times and,
7
after picking up SLD, “pushed him out of the way” to leave their
residence;
(3) Police determined Rodriguez, not Lopez, was the
dominant aggressor in the dispute, but charges against him were
ultimately dismissed;
(4) Lopez had been a subject in other DCFS referrals, many
when she was a minor and the alleged victim of neglect.
Although several more recent referrals named her as the
offending parent, most of those were closed as “unfounded”;
(5) Lopez admitted to smoking marijuana and had a
medical marijuana card that allowed her to do so, but did not
smoke in SLD’s presence; (Serrano did not report marijuana use
as a basis for SLD’s removal); and
(6) SLD’s maternal grandmother reported that Lopez was a
good mother and SLD had a strong attachment to her.
2. Detention Proceedings
Based on Serrano’s request, on April 11, 2018, the juvenile
court found there was probable cause to believe that SLD was a
person described by Welfare and Institutions Code section 300,
1
and authorized DCFS to take temporary custody of the child.
3. Temporary Placement
Because neither Lopez nor Rodriguez had provided
information as to relatives who could be considered for
placement, DCFS’s technical assistance team contacted foster
1
Undesignated statutory references are to the Welfare and
Institutions Code.
8
family agencies, which informed DCFS that a foster home was
available.
On April 12, 2018, Serrano placed SLD in the foster family
home of Emma Onofre and her husband, both of whom had been
approved and certified by the foster family agency Ninos Latinos
Unidos, Inc. Before leaving the child with them, Serrano verified
that the Onofres had a suitable room and crib for SLD.
4. Detention Report
On April 13, 2018, Serrano filed a detention report with the
court. She reported that Lopez: (1) denied Rodriguez hit or
pushed her on March 14, 2018, but had merely “tapped her
shoulder to ask where she was going”; (2) denied running on foot
with SLD to flag down police; and (3) stated that she informed
police that Rodriguez did not push or hurt her.
Serrano reported that Rodriguez stated he and Lopez never
argued, and he denied that he pushed or even touched Lopez in
the March incident and denied that she ran on foot with SLD to
flag down police. On the contrary, Rodriguez called police to help
defuse the situation.
D. Jurisdiction and Adjudication Proceedings
1. Dependency Petition
On April 12, 2018, Hernandez drafted a dependency
petition based on Serrano’s reports, alleging: (1) Lopez had a
history of domestic violence and engaged in a physical altercation
with Rodriguez in SLD’s presence; (2) M.C., SLD’s sibling, was a
prior dependent of the court due to Lopez’s physically abusive
conduct; and (3) Lopez’s marijuana use and her and Rodriguez’s
9
physical altercation on March 14, 2018, placed SLD and her
siblings at risk of serious physical harm.
2. Adjudication Proceedings
a. Detention Hearing
On April 16, 2018, the court held a detention hearing.
Lopez and Rodriguez appeared, were appointed counsel, and
denied the allegations of the petition. The court found that prima
facie evidence existed that SLD was at risk and DCFS had made
reasonable efforts to prevent removal. It ordered that SLD
remain detained from her parents and granted them monitored
visitation.
b. Alternative Placement Possibility
On April 17, 2018, Lopez informed Serrano for the first
time that a paternal aunt in Bakersfield could take SLD. On
April 24, 2018, Serrano submitted a Resource Family Assessment
Intake Request to initiate the process to have the aunt considered
for placement.
But, on May 7, 2018, Lopez asked a continuing services
social worker to leave SLD with the Onofres, with whom she
appeared to be well cared for and happy.
c. Adjudication Hearing
On June 6, 2018, the court held an adjudication hearing.
Lopez and Rodriguez, represented by counsel, pleaded no contest
to the allegations in DCFS’s dependency petition. To wit, that
plaintiffs engaged in a physical altercation in the presence of
SLD, that Lopez assaulted Rodriguez on numerous prior
occasions, that SLD’s sibling is a former dependent of the juvenile
10
court due to Lopez’s physically abusive conduct, and that
plaintiffs’ violent conduct placed SLD and her siblings at risk of
serious physical harm.
The court stated that “per the No Contest Plea[s],” the
petition was amended and sustained, as follows:
“[L]opez and . . . Rodriguez . . . have a history of engaging
in physical altercations including in the presence of [SLD]. On
03/14/2018, the mother and [Rodriguez] engaged in a physical
altercation. The mother left in the mother’s vehicle with the
child [SLD] and [Rodriguez] followed the mother in [his] car. On
numerous prior occasions, the mother assaulted [Rodriguez]. The
children’s sibling . . . is a former dependent of the Juvenile Court
due to the mother’s physically abusive conduct. Such violent
conduct on the part of the mother and [Rodriguez] endangers the
child’s physical health and safety and places the child, [SLD] and
the child’s siblings . . . at risk of serious physical harm.”
The court declared SLD to be a dependent of the court and
found, “by clear and convincing evidence,” that it was “reasonable
and necessary to remove the child from the parents . . . because
there is a substantial danger to the physical health, safety,
protection, or physical or emotional well-being . . . of the child,
and there are no reasonable means by which the child’s physical
health can be protected, without removing the child from the
home and the care, custody, and control of [the parents].” The
court found “it would be detrimental to the safety, protection, or
physical or emotional well-being . . . of the child to be returned [to
the parents],” and DCFS “made reasonable efforts to prevent
removal but there [were] no services available to prevent further
detention.”
11
The court ordered SLD removed from the care, custody and
control of her parents and placed with DCFS, with monitored
visitation.
E. Placement and SLD’s Death
In the four months during which SLD was in foster care,
DCFS social workers conducted seven face-to-face visits, finding
her to be clean, happy, and dressed appropriately, with no visible
marks or bruises. The Onofre home was also observed to be
clean. Foster Family Agencies social workers checked on SLD in
the Onofre home on a weekly basis and did not document any
concerns.
DCFS monitored visits between Lopez and SLD. All went
well, with “great interaction between them.”
DCFS reported that in all interactions between Lopez and
SLD in this case, social workers observed that Lopez was a
creative, loving, attentive mother, and SLD was thriving and
happy in her care.
On July 17, 2018, at approximately 7:00 a.m., SLD’s foster
mother found SLD in her crib deceased. The coroner listed the
cause of death as asphyxia due to choking on half a peanut lodged
in SLD’s trachea, obstructing her airway.
F. Complaint
Lopez and Rodriguez, both individually and as successors
in interest to SLD, filed a lawsuit against respondents (the
County, Serrano, Mejia, and Hernandez), NLU (the foster
agency), and the Onofres. In the operative third amended
complaint, Lopez and Rodriguez asserted three causes of action
against the County defendants, here respondents on appeal: (1)
12
breach of mandatory duties; (2) violation of civil rights under 42
2
USC 1983; and (3) violation of civil rights “pursuant to Monell.”
Lopez and Rodriguez alleged they were “harmed by the removal
of their daughter,” by “the subsequent events which led to her
death,” and by “the loss of their daughter.”
1. Factual Allegations
The operative complaint alleged that on March 14, 2018,
Lopez and Rodriguez “got into an argument,” and Lopez “fled the
home with [SLD].” Police were called, and determined that
Rodriguez was the “dominant aggressor and had jeopardized the
safety of [Lopez] and SLD by not allowing them to leave and seek
shelter. The police report characterized the incident as a
domestic violence incident in which [Lopez] was the victim and
stated, ‘The victim [Lopez] appeared to have been crying and was
very upset. The victim was very distraught and was genuinely
concern[ed] about her safety and the safety of her child.’ ” (Italics
and some quotation marks omitted.)
The operative complaint alleged that Lopez denied to
Serrano that any physical altercation had occurred, and no
evidence suggested SLD had been harmed. It also alleged that
the County defendants filed a removal request, detention report,
and dependency petition, all of which were baseless; this resulted
2
Monell v. Department of Social Services (1978) 436 U.S.
658. Plaintiffs’ first cause of action against the County, Serrano,
Mejia, and Hernandez is titled “Breach of Mandatory
Duties/Violation of Statute/Negligence Per Se.” In their
complaint and briefs on appeal, however, Lopez and Rodriguez
assert only that the County defendants breached mandatory
duties.
13
in SLD being placed with the Onofres, ultimately causing her
death.
2. Mandatory Duties
Lopez and Rodriguez alleged the County defendants owed
mandatory duties: to protect SLD and act in her best interests
pursuant to sections 202, 202, subdivisions (a)-(b), 300.2, 361,
subdivision (c)(1), 361.2, subdivision (a), 361.3, subdivision (a)(8),
361.21, subdivision (e); to provide a safe home for the child
pursuant to section 396; and to preserve the family pursuant to
sections 202, 300.2, and 361. They alleged the County
defendants failed to fulfill these mandatory duties by presenting
false allegations to the court, failing to present exculpatory
evidence, failing to properly screen the Onofres or monitor SLD’s
placement, and failing to seek return of SLD to Lopez, the non-
offending parent.
3. 42 USC § 1983
Lopez and Rodriguez alleged these failings constituted
their “Constitutional rights to familial relationships without
governmental interference,” and violated their parental rights
pursuant to Monell v. Department of Social Services (1978) 436
U.S. 658 (Monell).
4. Monell Liability
Regarding their Monell claim, Lopez and Rodriguez alleged
that in order to obtain federal and state funds, the County
adopted unofficial policies and had widespread and longstanding
practices of detaining children in the absence of exigent
circumstances, or other legal bases, and failing to return custody
14
of children to non-offending parents. In support of this endeavor,
they alleged that the County adopted a policy to mislead the
superior court in warrant applications by failing to include
exculpatory evidence when a child may be detained from a non-
offending parent as a means of intimidating and coercing parents
into pleading no contest to charging allegations.
Specifically, they alleged the County had no written policy
for analyzing, investigating, or presenting evidence as to whether
a child should be removed from her parents or returned to them,
but did have a policy of removing children from their families
absent exigent circumstances, placing them with nonfamily
members, and failing to return them to their families within a
reasonable time.
G. Summary Judgment
The County defendants moved for summary judgment,
arguing they duly investigated allegations raised in the
dependency referral and determined that placing SLD with the
Onofres would be in her best interests. They supported the
opposition with declarations from Serrano, Hernandez, and Mejia
detailing their respective roles in the investigations and filings
described above.
Hernandez declared that although she prepared the
dependency petition, she did not prepare the warrant package or
submit a statement of cause or detention report.
Mejia declared that she, as Serrano’s supervisor, did not
perform the investigation or draft the statement of cause,
application for removal, or declaration in support of the removal,
and did not sign the warrant request. She merely relied on the
15
information that Serrano provided from her investigation, and
signed the detention report based on this information.
The County defendants argued that Serrano’s statement of
cause supporting her application for a detention warrant was
accurate, as it was supported by the information upon which she
relied—the March 14, 2018 police report and interviews with
Lopez and Rodriguez. Serrano accurately represented that:
plaintiffs engaged in a domestic violence incident while SLD was
present, in which Lopez struck and kicked Rodriguez several
times; Lopez had been the subject of another DCFS case; Lopez
admitted to smoking marijuana; SLD’s maternal grandmother
reported that Lopez was a good mother; and the charges against
Rodriguez following the domestic violence incident were
ultimately dropped.
The County defendants argued that no evidence suggested
Hernandez or Mejia investigated or corroborated the factual
allegations of abuse supporting Serrano’s warrant application, or
intentionally misrepresented any facts to the dependency court.
On the contrary, the undisputed evidence was that Hernandez’s
role was limited to filing a juvenile petition with the court, and
Mejia only signed the detention report.
Lopez and Rodriguez opposed the motion, essentially
arguing that the dependency case was meritless and that DCFS
wrongfully failed to return SLD to Lopez. Lopez declared she
never told police that Rodriguez struck her, and in the March 14
Incident “nothing happened except a ‘nudge.’ ” Lopez and
Rodriguez admitted that DCFS frequently monitored SLD in her
placement with the Onofres.
Lopez and Rodriguez offered in opposition the declaration
of Paula Rhode, an expert in child abuse and neglect
16
investigations. Rhode declared Serrano’s investigation of the
March 15, 2018 dependency referral was deficient in several
respects, and SLD should not have been detained.
The court found there were no triable issues of material
fact as to plaintiffs’ causes of action for breach of mandatory
duties and deprivation of familial rights. The court on its own
motion ordered the Monell claim stricken for failure to identify
any person with County policymaking authority, or to identify
specific evidence of the existence of any alleged policy.
Lopez and Rodriguez appeal from the resulting entry of
judgment.
DISCUSSION
On appeal, Lopez and Rodriguez contend the County
defendants submitted false information to the juvenile court that
“feature[ed] unsubstantiated information, mischaracterizations,
hearsay and omissions of fact,” and that no evidence justified
SLD’s detention. Therefore, they argue, triable issues of material
fact exist as to why SLD was detained.
A. Breach of Mandatory Duties
The first cause of action against the County defendants is
for breach of several sections of the Welfare and Institutions
Code, which Lopez and Rodriguez argue set forth mandatory
duties. On appeal, Lopez and Rodriguez defend this cause of
action only as to breach of sections 309 and 319. We therefore
deem the action abandoned as to breach of any other statute.
1. Preliminary Considerations
Preliminarily, we note that although the first cause of
action against Serrano, Mejia, and Hernandez is titled “Breach of
17
Mandatory Duties/Violation of Statute/Negligence Per Se” (italics
added), Lopez and Rodriguez do not separately claim these
defendants are liable for negligence per se. We therefore deem
any separate negligence claim to be forfeited.
Furthermore, we are aware of no right of action against a
private individual for breach of mandatory duties. Lopez and
Rodriguez allege that Serrano, Mejia, and Hernandez “breached
mandatory duties” within the meaning of CACI No. 423. But jury
instructions are not the law and do not constitute binding
authority. (See People v. Mojica (2006) 139 Cal.App.4th 1197,
1204, fn. 4 [pattern jury instructions are not the law and are not
binding].)
CACI No. 423, titled “Public Entity Liability for Failure to
Perform Mandatory Duty,” which itself applies only to public
entities, tracks Government Code section 815.6, which likewise
applies only to public entities. It provides: “Where a public
entity is under a mandatory duty imposed by an enactment that
is designed to protect against the risk of a particular kind of
injury, the public entity is liable for an injury of that kind
proximately caused by its failure to discharge the duty unless the
public entity establishes that it exercised reasonable diligence to
discharge the duty.”
We invited supplemental briefing from plaintiffs to identify
a right of action against an individual for breach of mandatory
duties.
Lopez and Rodriguez responded with a list of several
Government Code statutes but only one, section 815.6, relates to
breach of a mandatory duty, and as noted above, that section
pertains only to public entities. They also cited Scott v. County of
Los Angeles (1994) 27 Cal.App.4th 125 and Akey v. Placer County
(E.D. Cal. Sept. 1, 2015) 2015 U.S. Dist. LEXIS 116586, but those
cases likewise pertain only to the liability of public entities for
18
breach of mandatory duties. Finally, plaintiffs cited C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
which has nothing to do with mandatory duties.
We conclude no triable issue exists as to a private
individual’s liability for breach of mandatory duties.
2. The County’s Mandatory Duties
a. Legal Principles
The County, however, may be held liable for breach of
mandatory duties.
“Under the California Government Claims Act (Gov. Code,
§ 810 et seq.), governmental tort liability must be based on
statute. ‘Except as otherwise provided by statute: [¶] . . . [a]
public entity is not liable for an injury, whether such injury
arises out of an act or omission of the public entity or a public
employee or any other person.’ ” (B.H. v. County of San
Bernardino (2015) 62 Cal.4th 168, 179.)
Government Code section 815.6 provides a statutory
exception to the general rule of public entity immunity. (B.H. v.
County of San Bernardino, supra, 62 Cal.4th at p. 179.)
“Government Code section 815.6 has three elements that
must be satisfied to impose public entity liability: (1) a
mandatory duty was imposed on the public entity by an
enactment; (2) the enactment was designed to protect against the
particular kind of injury allegedly suffered; and (3) the breach of
the mandatory statutory duty proximately caused the injury.
Even when a duty exists, California has enacted specific
immunity statutes that, if applicable, prevail over liability
provisions. [Citation.] The first question always is whether there
is liability for breach of a mandatory duty. [Citation.] If there is
no liability, the issue of immunity never arises.” (B.H. v. County
of San Bernardino, supra, 62 Cal.4th at p. 179.)
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b. Summary Judgment
A trial court properly grants summary judgment “ ‘if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) A
defendant may establish his right to summary judgment by
showing that one or more elements of the cause of action cannot
be established or that there is a complete defense to the cause of
action. ([§] 437c, subd. (p)(2).)” (Neiman v. Leo A. Daly Co.
(2012) 210 Cal.App.4th 962, 967.) “Once the moving defendant
has satisfied its burden, the burden shifts to the plaintiff to show
that a triable issue of material fact exists as to each cause of
action. [Citation.] A triable issue of material fact exists where
‘the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.’ ” (Ibid.)
On appeal, we apply an independent standard of review to
determine whether a trial is required—whether the evidence
favoring and opposing the summary judgment motion would
support a reasonable trier of fact’s determination in the plaintiff’s
favor on the cause of action or defense. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) In doing so we view the
evidence in the light most favorable to the party opposing
summary judgment. (Id. at p. 843; Alexander v. Codemasters
Group Limited (2002) 104 Cal.App.4th 129, 139.) We accept as
true the facts shown by the evidence offered in opposition to
summary judgment and the reasonable inferences that can be
drawn from them. (Spitzer v. The Good Guys, Inc. (2000) 80
Cal.App.4th 1376, 1385-1386.)
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c. Application
Lopez and Rodriguez contend triable issues exist as to
whether the County is liable for breach of the mandatory duties
set forth by subdivision (a) of section 309 and subdivision (h)(2) of
section 319.
i. Sections 309 and 319
Subdivision (a) of section 309 states, in pertinent part:
“Upon delivery to the social worker of a child who has been taken
into temporary custody under this article, the social worker shall
immediately investigate the circumstances of the child and the
facts surrounding the child’s being taken into custody and
attempt to maintain the child with the child’s family through the
provision of services. The social worker shall immediately
release the child to the custody of the child’s parent, guardian,
Indian custodian, or relative . . . unless . . . [¶] . . . [¶] . . .
[c]ontinued detention of the child is a matter of immediate and
urgent necessity for the protection of the child and there are no
reasonable means by which the child can be protected in their
home or the home of a relative.”
Subdivision (h)(2) of section 319 provides, in pertinent part:
“Relatives shall be given preferential consideration for placement
of the child.”
Neither statute mandates that a minor be returned to a
parent or placed with a relative. They mandate only that an
investigation be conducted, that a child be returned to a parent if
no contrary immediate and urgent necessity for the protection of
the child exists, and that relatives be given preferential
consideration in placement.
21
In support of its motion for summary judgment, the County
proffered evidence that it investigated the March 15, 2018
referral pursuant to sections 309 and 319 and determined that
placing SLD with the Onofres would be in her best interests.
This evidence shifted the burden to plaintiffs to establish the
existence of a triable issue of material fact.
Lopez and Rodriguez did not dispute that DCFS
investigated the referral; they complain that the investigation
was defective, that SLD was not immediately returned to Lopez
and, if she could not be returned to Lopez, that SLD’s relatives
were not given preferential consideration for placement. Lopez
and Rodriguez do not contend that the County could have
unilaterally returned SLD to Lopez after she had been placed
with the Onofres, as to do so would have violated the juvenile
court’s detention and adjudication orders.
ii. No Mandatory Duties
Although sections 309 and 319 mandate activities for
purposes of the Welfare and Institutions Code, such directives do
not set forth mandatory duties under Government Code section
815.6.
“Courts have delineated what is necessary to establish a
mandatory duty. ‘First and foremost, . . . the enactment at issue
[must] be obligatory, rather than merely discretionary or
permissive, in its directions to the public entity; it must require,
rather than merely authorize or permit, that a particular action
be taken or not taken.’ [Citation.] ‘It is not enough, moreover,
that the public entity or officer have been under an obligation to
perform a function if the function itself involves the exercise of
22
discretion.’ ” (State Dept. of State Hospitals v. Superior Court
(2015) 61 Cal.4th 339, 348 (State Dept. of State Hospitals).)
“Whether an enactment imposes ‘a mandatory duty, rather
than a mere obligation to perform a discretionary function, is a
question of statutory interpretation for the courts.’ [Citation.]
The enactment’s ‘language “is, of course, a most important guide
in determining legislative intent, [but] there are unquestionably
instances in which other factors will indicate that apparent
obligatory language was not intended to foreclose a governmental
entity’s or officer’s exercise of discretion.” ’ [Citation.] For
example, the word ‘shall’ is ‘mandatory’ for purposes of the
Welfare and Institutions Code. [Citations.] ‘However, as we
have emphasized, this term’s inclusion in an enactment does not
necessarily create a mandatory duty’ within the meaning of
Government Code section 815.6.” (State Dept. of State Hospitals,
supra, 61 Cal.4th at p. 349.)
“A mandatory duty is created only when an enactment
requires an act that is clearly defined and not left to the public
entity’s discretion or judgment. [Citation.] Such an act is
mandated only to the extent of the enactment’s precise
formulation. When the enactment leaves implementation to an
exercise of discretion, ‘lend[ing] itself to a normative or
qualitative debate over whether [the duty] was adequately
fulfilled,’ an alleged failure in implementation will not give rise to
liability.” (State Dept. of State Hospitals, supra, 61 Cal.4th at p.
350.)
(a). Section 309
Here, section 309 obligates a social worker to “investigate”
the circumstances surrounding a child’s being taken into custody,
23
“attempt to maintain” the child with the child’s family through
the provision of services, and “release the child to the custody of
the child’s parent” unless continued detention is immediately and
urgently necessary to protect the child, and no reasonable
alternative exists.
“The nature of the investigation to be conducted and the
ultimate determination of suitability of adoptive parents [by
social workers] bear the hallmarks of uniquely discretionary
activity.” (Jacqueline T. v. Alameda County Child Protective
Services (2007) 155 Cal.App.4th 456, 466.) To conduct an
investigation, an investigator must identify pertinent issues,
disregard irrelevant ones, and marshal facts necessary to reach
an informed conclusion. To conclude whether a child should be
placed within the family, for example, or returned to the child’s
parents, a dependency investigator must evaluate the existence
and nature of any risks to the child, weigh the likelihood and
degree of potential harm, assess the availability and efficacy of
any protective measures, and determine whether placement
within the family or with parents would chart a beneficial course
through and among the risks.
Thus, “the choice of a foster home for a dependent child is a
complex task requiring the consideration and balancing of many
factors to achieve statutory objectives. County social workers
[must] evaluate[] numerous subjective factors in determining
what they believe[] to be the appropriate placement.” (Becerra v.
County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1464 [foster
home placement is a discretionary decision].)
Neither the Welfare and Institutions Code nor any
regulation defines the exact parameters of a dependency
investigation nor mandates any particular conclusion. (See
24
Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 897
[“The decisions made in the adoption process are by nature highly
subjective. . . . There is no way that the following of forms or
rules or agency procedures could transmute this most subjective
decisionmaking process into a ministerial act”].) The only precise
requirement is that the social worker must pursue the best
interests of the child. How exactly she does this is a matter of
discretion and judgment.
Section 309 thus obligates a social worker to perform a
discretionary function—investigate a dependency referral and
identify a suitable placement for the child, preferring placement
with parents. These tasks, while obligatory, are not mandatory
duties within the meaning of Government Code section 815.6.
(b). Section 319
If a dependent child cannot be placed within the family or
with parents as prescribed by section 309, section 319 prescribes
a secondary preference: The County must prefer placement with
relatives. The statute mandates no specific way this preference
must be effectuated.
This relative preference is different only in degree, not
quality, from the preference described in section 309. The
investigation and decisions that go into such a placement
therefore involve the same exercises of discretion and judgment.
As discussed above, the statutory obligation to conduct such an
investigation, and effectuate such a preference, does not set forth
a mandatory duty within the meaning of Government Code
section 815.6.
25
iii. Conclusion
Because the individual defendants cannot be held liable for
breach of mandatory duties under any theory plaintiffs assert, we
hold that the trial court correctly concluded no triable issue exists
as to them for breach of mandatory duties.
Because sections 309 and 319 create no mandatory duty to
place a child either with Lopez and Rodriguez or relatives, no
triable issue exists as to the County’s liability under Government
Code section 815.6. Given this holding, we need not reach the
issues of breach or causation, nor of whether Serrano,
Hernandez, or Mejia enjoyed civil immunities under Government
Code section 821.6 or were barred from immunity under
Government Code section 820.21. (See B.H. v. County of San
Bernardino, supra, 62 Cal.4th at p. 179 [“If there is no liability,
the issue of immunity never arises”].)
B. Violation Of Civil Rights Under 42 USC § 1983
Lopez and Rodriguez contend triable issues exist as to
whether County defendants deprived them of constitutionally
guaranteed familial rights within the meaning of 42 USC § 1983
(hereafter § 1983) by removing SLD from their custody based on
fabricated evidence.
1. Legal Principles
Title 42 USC § 1983 provides, in pertinent part: “Every
person who, under color of any statute . . . of any State . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
26
the Constitution and laws, shall be liable to the party injured in
an action at law . . . for redress . . . .”
Title 42 USC § 1983 was enacted “ ‘to deter state actors
from using the badge of authority to deprive individuals of their
federally guaranteed rights and to provide relief to victims if such
deterrence fails.’ ” (Modacure v. B&B Vehicle Processing, Inc.
(2018) 30 Cal.App.5th 690, 693.) It does not “create substantive
rights; rather it is the vehicle whereby plaintiffs can challenge
actions by government officials.” (Jones v. Williams (9th Cir.
2002) 297 F.3d 930, 934.)
In a § 1983 action, the plaintiff must establish that a
person acting under the color of state law wrongfully deprived
her of a federal right. (Catsouras v. Department of California
Highway Patrol (2010) 181 Cal.App.4th 856, 890.) For example,
removal of a child from the custody of her parents without a
warrant, parental consent, or evidence that the child was in
imminent danger of serious bodily injury is actionable under
§ 1983. (Jones v. County of Los Angeles (9th Cir. 2015) 802 F.3d
990, 1000.) “[T]he interest of parents in the care, custody, and
control of their children—is perhaps the oldest of the
fundamental liberty interests recognized by [the Supreme]
Court.” (Keates v. Koile (2018) 883 F.3d 1228, 1235-1236.)
If, however, a detention is by court warrant, the plaintiff
must establish that the warrant affidavit contained material
misrepresentations or omissions that were made intentionally or
with reckless disregard for the truth. (Bravo v. City of Santa
Maria (9th Cir. 2011) 665 F.3d 1076, 1083.) Materiality is a
question of law for the court to determine. (Ewing v. City of
Stockton (9th Cir. 2009) 588 F.3d 1218, 1224.)
27
Here, the County offered evidence that Serrano duly
investigated allegations raised in the dependency referral and
determined that placing SLD with the Onofres would be in her
best interests. She then prepared a request for a detention
warrant, supported by a statement of cause. Serrano declared
that for the statement of cause, she relied on a police report and
interviews with Lopez, Rodriguez, Lopez’s mother, and Gonzalez,
a social worker who had handled a prior dependency referral.
From these sources, Serrano understood that (1) Lopez and
Rodriguez engaged in domestic violence in SLD’s presence; (2)
Lopez underplayed the violence and denied there was a problem;
(3) Lopez’s marijuana use was not a problem; and (4) Lopez’s
mother thought Lopez was a good parent. Serrano declared she
relayed these facts to the court in her statement of cause.
Hernandez and Mejia both declared they had no role in
drafting the statement of cause.
This evidence demonstrated that Lopez and Rodriguez
could not establish their § 1983 claim because the statement of
cause given to the juvenile court to achieve SLD’s detention
contained no intentional fabrications.
This showing shifted the burden to Lopez and Rodriguez to
demonstrate the existence of a triable issue of material fact.
They failed to do so. In opposition to the motion, plaintiffs
took great issue with Serrano’s investigation and report, arguing
they relied on unreliable evidence and hearsay, omitted material
facts, and failed to credit Lopez’s contrary narrative. For
example, they argued that contrary to the police report, Lopez
never told police that Rodriguez struck her, and in the March 14
incident “nothing happened except a ‘nudge.’ ”
28
None of this evidence established that Serrano, Hernandez,
or Mejia submitted a warrant affidavit to the court that
contained material misrepresentations or omissions that were
made intentionally or with reckless disregard for the truth. At
best, this evidence indicated Serrano’s statement of cause was
inaccurate or incomplete. But no evidence showed that any
inaccuracy or omission was intentional.
We therefore conclude the trial court properly granted
summary judgment on plaintiffs’ § 1983 claim.
C. Monell
The trial court did not rule on the County defendants’
motion for summary judgment as to the Monell claim. Instead,
on its own motion, it ordered the claim stricken as improper
because in it, Lopez and Rodriguez: (1) failed to identify any
policymaker; and (2) failed to identify evidence of any offending
policy.
Lopez and Rodriguez do not contest the procedure by which
the trial court disposed of their Monell claim. Instead, they
contend their allegations sufficed as to the County. They concede
that Mejia, Serrano, and Hernandez cannot be held liable on a
Monell claim.
1. Legal Principles
A municipality may be held liable under a claim brought
under § 1983 only when the municipality inflicts an injury; it
may not be held liable under a respondeat superior theory.
(Monell, supra, 436 U.S. at p. 694; Venegas v. County of Los
Angeles (2004) 32 Cal.4th 820, 829 (Venegas).)
29
At least two routes can lead to the conclusion that a
municipality has inflicted a constitutional injury. First, a
plaintiff can show that a municipality itself violated someone’s
rights or that it directed its employee to do so. (Board of Com’rs
of Bryan Cty. v. Brown (1997) 520 U.S. 397, 404.) To show that
the municipality violated someone’s rights or instructed its
employees to do so, a plaintiff can prove that the municipality
acted with “the state of mind required to prove the underlying
violation,” just as a plaintiff does when he or she alleges that a
natural person has violated his federal rights. (Id. at p. 405.)
For example, in Monell, it was alleged the city had a policy of
discriminating against pregnant women in violation of the
Fourteenth Amendment. (Monell, supra, 436 U.S. at p. 658.)
Alternatively, a plaintiff can demonstrate that a
municipality is responsible for a constitutional tort committed by
its employee, even though it did not direct the employee to
commit the tort. (Board of Com’rs of Bryan Cty. v. Brown, supra,
520 U.S. at pp. 406-407; City of Canton v. Harris (1989) 489 U.S.
378, 387.) Under this theory of liability, a plaintiff can establish
that through its omissions the municipality is responsible for a
constitutional violation committed by one of its employees, even
though the municipality’s policies were facially constitutional, the
municipality did not direct the employee to take the
unconstitutional action, and the municipality did not have the
state of mind required to prove the underlying violation.
(Canton, at pp. 387-389.) Because a municipality may not be held
liable under a theory of respondeat superior, a plaintiff must
show that the municipality’s deliberate indifference led to its
omission and that the omission caused the employee to commit
the constitutional violation. (Id. at p. 387.) To prove deliberate
30
indifference, the plaintiff must show that the municipality was on
actual or constructive notice that its omission would likely result
in a constitutional violation. (Farmer v. Brennan (1994) 511 U.S.
825, 841.) Compared to the more direct route to municipal
liability discussed above, “much more difficult problems of proof”
are presented in a case where a municipal employee acting under
a constitutionally valid policy violated someone’s rights. (Board
of Com’rs of Bryan Cty., at p. 406.)
In City of Canton v. Harris, supra, 489 U.S. at page 388,
the United States Supreme Court held that the “inadequacy of
police training” may result in a municipality being held liable
under § 1983 “where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact.” An omission, such as failure to train, reflects a
“deliberate” or “conscious” choice on a municipality’s part and, as
such, may constitute a policy or custom creating liability for the
municipality. (Id. at pp. 388-389.) But mere allegations that an
existing training program constitutes a “policy” for which the
municipality is responsible will not suffice. (Id. at p. 389.) As
explained by the Canton Court: “In resolving the issue of a city’s
liability, the focus must be on adequacy of the training program
in relation to the tasks the particular officers must perform.
That a particular officer may be unsatisfactorily trained will not
alone suffice to fasten liability on the city, for the officer’s
shortcomings may have resulted from factors other than a faulty
training program. [Citations.] It may be, for example, that an
otherwise sound program has occasionally been negligently
administered. Neither will it suffice to prove that an injury or
accident could have been avoided if an officer had had better or
more training, sufficient to equip him to avoid the particular
31
injury-causing conduct. Such a claim could be made about almost
any encounter resulting in injury, yet not condemn the adequacy
of the program to enable officers to respond properly to the usual
and recurring situations with which they must deal. And plainly,
adequately trained officers occasionally make mistakes; the fact
that they do says little about the training program or the legal
basis for holding the city liable.” (Id. at pp. 390-391.)
2. Application
Here, Lopez and Rodriguez allege that the County violated
their constitutional rights by adopting informal procedures to
detain dependent children from non-offending parents without
adequate investigation or evidence and in the absence of exigent
circumstances.
The claim fails for two simple reasons.
First, neither DCFS nor the County detains dependent
children, the superior court does. The superior court is a state
entity. A state cannot be held liable under § 1983. (Venegas,
supra, 32 Cal.4th at p. 829 [“states and state officers sued in their
official capacity are not considered persons under section 1983
and are immune from liability under the statute by virtue of the
Eleventh Amendment and the doctrine of sovereign immunity”].)
The County may be held liable under § 1983 only for
intentionally misleading the court to detain children.
Second, as discussed above, no triable issue exists as to
whether Lopez and Rodriguez suffered a constitutional violation.
Without such a violation, the County can have no Monell liability.
(See City of Los Angeles v. Heller (1986) 475 U.S. 796, 799 [“If a
person has suffered no constitutional injury . . . the fact that the
32
departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point”].)
We conclude that Lopez and Rodriguez’s Monell claim is
improper because it relies on the incorrect proposition that the
County, not the State of California, detained SLD. The claim was
thus properly stricken. We further conclude that even had the
claim not been stricken, no triable issue exists as to whether the
County, through its deliberate omissions, was responsible for a
constitutional violation committed by its employees.
Because Lopez and Rodriguez do not challenge the
procedure by which the trial court disposed of their Monell claim,
we need not decide whether it was appropriate to strike the claim
on the court’s own motion.
Given the above holdings, we need not decide whether
Lopez and Rodriguez are collaterally estopped from challenging
the social workers’ conduct or whether their § 1983 claim is
barred under Heck v. Humphrey (1994) 512 U.S. 477.
33
DISPOSITION
The judgment is affirmed. Respondents are to recover their
costs on appeal.
NOT TO BE PUBLISHED
*
KLATCHKO, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
*
Judge of the Riverside County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
34