# Underwood > District Court, S.D. California · March 13, 2026 URL: https://www.frixlaw.com/law-library/cases/11365740 ## Case - **Full name:** Larry Underwood & Joyce Agiobenebo v. San Diego Unified School District, et al. - **Court:** District Court, S.D. California - **Decided:** March 13, 2026 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11365740 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LARRY UNDERWOOD & JOYCE Case No.: 25-cv-00088-JO-VET AGIOBENEBO, 12 Plaintiffs, 13 MINUTE ORDER GRANTING v. DEFENDANTS’ RENEWED 14 MOTION TO DISMISS [DKT. 41] SAN DIEGO UNIFIED SCHOOL 15 DISTRICT, et al. 16 Defendants. 17 18 19 On February 12, 2026, the Court held oral argument on Defendants’ renewed motion 20 to dismiss Plaintiff’s Second Amended Complaint. For the reasons stated below and on 21 the record at oral argument, the Court grants Defendants’ renewed motion to dismiss [Dkt. 22 41]. 23 1. On July 23, 2025, Plaintiff filed a Second Amended Complaint, which raised six 24 claims under 42 U.S.C. § 1983. Dkt. 32 (“SAC”). 25 2. On October 22, 2025, for the reasons stated on the record at the October 16, 2025 26 hearing and in its order, the Court dismissed with prejudice Plaintiff’s claims that 27 (1) Defendant Kern held A.A. after school on January 22, 2024 for an interview 28 with social workers without Plaintiff’s consent, in violation of his right to familial 1 association; and (2) his claim that Defendants violated Ms. Agiobenebo’s Fifth 2 Amendment rights by pressuring her to do an interview with a social worker on 3 January 22, 2024. Dkt. 40. 4 3. On the same date, it dismissed with leave to amend (1) Plaintiff’s judicial 5 deception claim that Defendants Kern and Meredith made false statements to 6 police and child protective services that impacted the outcome of A.A.’s custody 7 proceedings; and (2) his claim that Defendants Kern, Meredith, and Kinoshita 8 excluded Plaintiff from participating in A.A.’s education after removing his name 9 from her enrollment form on January 22, 2024, violating his Fourteenth 10 Amendment right to direct his child’s education. See id. Because Plaintiff failed 11 to amend these claims and was warned that failure to do so would result in these 12 claims being waived, the Court now dismisses them with prejudice. 13 4. For the reasons stated on the record at the February 12, 2026 hearing and below, 14 the Court orders as follows for Plaintiff’s two remaining claims: 15 5. The Court dismisses Plaintiff’s familial association claim against Vice Principal 16 Kern for lying about his daughter’s whereabouts during the abuse investigation 17 on January 19, 2024. He claims that by doing so, this school official separated 18 him from A.A. for several hours in violation of his constitutional rights. See SAC 19 at 10:11–14, 12:20–21, 33:5–14, 43:3–25. Parents have a familial association 20 right not to be separated from their children without due process of law unless a 21 child is in imminent danger. Keates v. Koile, 883 F.3d 1228, 1236–38 (9th Cir. 22 2018). Among other things, to make out this kind of familial association claim, 23 “plaintiffs must establish that an actual loss of custody occurred; the mere threat 24 of separation or being subject to an investigation, without more, is insufficient.” 25 Dees v. Cnty. of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020). 26 6. Here, it is unclear whether Vice Principal Kern’s alleged actions violated 27 Plaintiff’s parental rights because she did not remove A.A. from Plaintiff’s 28 custody or care, even though by lying to him about her whereabouts, she caused 1 the two to be separated for several hours. See SAC at 10:11–14 (alleging that 2 San Diego police officers, not Kern, removed A.A. from the school and brought 3 her to the hospital), 33:11–34:14 (alleging that Kern lied to Plaintiff that A.A. 4 was not at the school, and after he had left, lied to police that she had not seen 5 the parents all day); 10:11–12:22 (alleging that A.A. was separated from Plaintiff 6 until 9:30 p.m. that evening). While it is clearly established that social workers 7 who take children into their custody for medical examinations or remove children 8 from their parents’ homes may violate familial rights, Plaintiff has pointed to no 9 cases establishing the same for school officials who mislead parents about their 10 children’s whereabouts during an abuse investigation. See Mann v. Cnty. of San 11 Diego, 907 F.3d 1154, 1161 (9th Cir. 2018) (“the state is required to notify 12 parents and to obtain judicial approval before children are subjected to 13 investigatory physical examinations”); Demaree v. Pederson, 887 F.3d 870, 884 14 (9th Cir. 2018) (clearly established that a social worker cannot remove a child 15 from their parent’s home if there is no imminent risk of serious bodily harm). 16 7. Even if lying to a parent about their child’s whereabouts could form the basis of 17 a familial association claim, the law is unclear that the several-hour separation at 18 issue here arises to the level of a constitutional injury. The Ninth Circuit has not 19 delineated how much separation is required to show “actual loss of custody” for 20 purposes of a familial association claim. Compare Capp v. Cnty. of San Diego, 21 940 F.3d 1046, 1060 (9th Cir. 2019) (no loss of custody for familial association 22 claim where unfounded child abuse investigation did not lead to the termination 23 of parental status), and Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 24 1154, 1167 (9th Cir. 2014) (officers separating father from son for forty minutes 25 during police investigation did not give rise to familial association claim because 26 separation was “brief”), with Dees, 960 F.3d at 1153 (suggesting that loss of 27 control could potentially suffice, but finding that five-minute interview did not 28 constitute loss of control), and James v. Rowlands, 606 F.3d 646, 653–54 (9th 1 Cir. 2010) (father plausibly alleged familial association claim where child 2 protective services took child into protective custody and placed her with 3 grandparents for weekend without notifying him). 4 8. Because it was not clearly established that Vice Principal Kern’s misleading 5 statements about A.A.’s location would violate familial association rights, nor 6 that the separation caused was significant enough to arise to a constitutional 7 injury, she is entitled to qualified immunity. Keates, 883 F.3d at 1239 (defendant 8 is entitled to qualified immunity if right was not clearly established); Kisela v. 9 Hughes, 584 U.S. 100, 105 (2018) (for a right to be clearly established, its 10 contours must be “sufficiently definite that any reasonable official in the 11 defendant’s shoes would have understood that [s]he was violating it”) (internal 12 quotations omitted). The Court dismisses this claim with prejudice because 13 additional allegations could not overcome the bar of qualified immunity. 14 Chappel v. Lab. Corp. of America, 232 F.3d 719, 725–26 (9th Cir. 2000) (court 15 may deny leave to amend where amendment would be futile). 16 9. The Court also dismisses Plaintiff’s First Amendment claim that Defendants 17 Kern, Meredith, and Kinoshita retaliated against him for challenging the way they 18 handled the January 19, 2024 child abuse investigation by (1) removing his name 19 from his daughter’s enrollment form; and (2) seeking to exclude him from the 20 school premises. SAC at 51:5–53:26. “To state a First Amendment retaliation 21 claim, a plaintiff must plausibly allege that (1) he was engaged in a 22 constitutionally protected activity, (2) the defendant’s actions would chill a 23 person of ordinary firmness from continuing to engage in the protected activity 24 and (3) the protected activity was a substantial or motivating factor in the 25 defendant’s conduct.” Capp, 940 F.3d at 1053 (internal quotation omitted). To 26 establish the necessary causal link between their protected activity and the 27 retaliation, a plaintiff must show that the adverse action “would not have been 28 taken absent the retaliatory motive.” Id. 1 10. First, Plaintiff has not pled a sufficient causal link between his January 22, 2024 2 complaint to school officials about the handling of his daughter’s child abuse 3 investigation and their alleged retaliation of removing his name from her 4 enrollment form. By his own account, when he complained on the morning of 5 January 22, 2024, he was immediately presented with school records that showed 6 he was not listed as A.A.’s father. SAC at 15:10–16:8. Because his pleadings 7 indicate that the school action to remove his name from A.A.’s enrollment form 8 preceded the allegedly protected activity of challenging the school’s handling of 9 the investigation, the protected activity could not have caused the retaliation. 10 11. Second, Plaintiff’s First Amendment claim based on Vice Principal Kern’s 11 inquiry into banning him from school grounds fails because Plaintiff has not pled 12 a retaliatory action that would be likely to chill a person from exercising their 13 rights. His pleadings indicate that Kern neither threatened Plaintiff that she 14 would ban him from the school premises nor actually banned him. Instead, 15 Plaintiff only alleges that after he had left the meeting with Kern on January 22, 16 2024, she asked school police to speak with the principal about doing a stay away 17 letter—a request that never materialized into an actual ban and that Plaintiff only 18 found out about after the fact. See id. at 53:7–22 (school police call report stated 19 that “RP will speak to Principal regarding doing a stay away letter and call back 20 to advise”), 71:21–25. While excluding a parent from school premises or 21 threatening to do so might chill a parent from exercising their rights, merely 22 exploring the possibility, unbeknownst to the parent, by asking school police to 23 speak with the principal about a stay away letter, would not have the same effect. 24 Because an individual of ordinary firmness would not be deterred from future 25 speech by this alleged action, the Court finds that Plaintiff has not adequately 26 pled that Kern engaged in a retaliatory action prohibited by the First Amendment. 27 Capp, 940 F.3d at 1053 (to make out a First Amendment claim, a plaintiff must 28 1 allege a retaliatory action that would “chill a person of ordinary firmness from 2 continuing to engage in the protected activity”). 3 12. In the alternative, Vice Principal Kern would be entitled to qualified immunity 4 because her action, even if it could be construed as a threat or an actual ban from 5 school grounds, would not violate clearly established rights. “In the First 6 Amendment context, the right in question is not the general right to be free from 7 retaliation for one’s speech, but the more specific right to be free from a particular 8 type of government action.” Hartzell v. Marana Unified Sch. Dist., 130 F.4th 9 722, 742 (9th Cir.), cert. denied, 146 S. Ct. 298 (2025) (internal quotations and 10 citations omitted). The Ninth Circuit has cautioned that because of the “special 11 characteristics of the school environment,” “cases arising outside public schools 12 are of limited use in evaluating the scope of First Amendment rights” within 13 schools. Id. at 743. As of January 2024, when these events transpired, parents 14 did not have a clearly established right to be free from being banned from school 15 grounds, even if school officials took this action in retaliation for the parents’ 16 speech. Hartzell, 130 F.4th 722, 743 (holding that school principal was entitled 17 to qualified immunity for retaliatory decision to ban parent from school because 18 as March 5, 2025, there was “neither a case of controlling authority nor a 19 consensus of cases of persuasive authority” establishing this right).1 Plaintiff 20 points to no cases demonstrating otherwise. Because it was not clearly 21 22 23 1 It appears that Hartzell established the right to be free from being banned from a school for criticizing school officials, see id. at 737, but Vice Principal Kern’s actions preceded this decision. Prior 24 to Hartzell, the Ninth Circuit had held that parents enjoy a right “to be free from retaliation in the form of 25 threatened legal sanctions and other similar means of coercion, persuasion, and intimidation” by social workers, but Plaintiff’s retaliation claim is not brought against social workers and does not involve a threat 26 of legal sanctions, loss of custody, or any other similar means of coercion. Sampson v. Cnty. of Los Angeles by & through Los Angeles Cnty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1020 (9th Cir. 27 2020) (parent enjoyed clearly established right to be free from social worker accusing them of “neglect and abuse and convincing the juvenile court to temporarily remove [child] from [parent’s] custody”); see 28 1 established that attempting to or actually banning Plaintiff from the school would 2 violate the First Amendment on January 22, 2024, when Defendant Kern took 3 these actions, Defendant Kern is entitled to qualified immunity. Therefore, the 4 Court dismisses this claim without leave to amend.” Chappel, 232 F.3d at 725- 5 26. 6 13. The Clerk of the Court is directed to close the case. 7 8 IT IS SO ORDERED. 9 10 || Dated: March 13, 2026 12 Honorable Jinsook Ohta 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 || 27 Amendment would be futile because even if the Court allowed Plaintiff to amend his complaint to 28 allege that he was threatened or actually banned from the school, Defendant Kern would still be entitled to qualified immunity for the reasons stated above. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11365740. Public record. Not legal advice.