The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORI BELTRAN; ROBERT BELTRAN;
COBY BELTRAN, by and through his
Guardian Ad Litem Lori Beltran,
Plaintiffs-Appellants,
v.
SANTA CLARA COUNTY; MELISSA No. 05-16976
SUAREZ, individually and as an
employee of the County of Santa D.C. No.
CV-03-03767-RMW
Clara; JENNIFER HUBBS,
OPINION
individually and as an employee
of the County of Santa Clara;
EMILY TJHIN, individually and as
an employee of the County of
Santa Clara,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
April 17, 2007—San Francisco, California
Filed June 25, 2007
Before: Warren J. Ferguson, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt;
Concurrence by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Ferguson
7565
7568 BELTRAN v. SANTA CLARA COUNTY
COUNSEL
Robert R. Powell, Law Offices of Robert R. Powell, San Jose,
California, for the plaintiffs-appellants.
Ann Miller Ravel and Melissa Kiniyalocts, Office of the
County Counsel, San Jose, California, for the defendants-
appellees.
OPINION
REINHARDT, Circuit Judge:
This case raises the question whether social workers are
entitled to absolute immunity for verified statements in peti-
BELTRAN v. SANTA CLARA COUNTY 7569
tions filed with a dependency court. We hold that they are,
both with respect to dependency petitions and custody peti-
tions, as well as the statement of facts submitted therewith.
FACTUAL AND PROCEDURAL BACKGROUND1
Since his premature birth on June 5, 1998, Coby Beltran
(“Coby”) has suffered from numerous medical maladies,
including an undiagnosed and unsuccessfully treated bowel
motility problem. Coby’s gastrointestinal problems led to
occasions where his Body Mass Index fell below the fifth per-
centile, putting him at risk of significant long-term damage.
During the first four years of Coby’s life, Child Protective
Services Department of the Social Services Agency of Santa
Clara County (“the Department”) received four separate refer-
rals based on claims that Coby’s mother suffered from Mun-
chausen Syndrome by Proxy, a condition in which a parent
(generally the mother) takes affirmative steps to keep her
child ill in order to gain medical attention. Social workers
investigated each referral and, each time, deemed the referral
“unfounded.”
This case involves the results of a fifth referral of suspected
abuse based on Munchausen Syndrome by Proxy received, in
July 2002, from one of Coby’s doctors. Melissa Suarez
(“Suarez”), a case worker employed by the Department,
investigated this referral. On August 12, 2002, following the
investigation, Suarez’s supervisor, Emily Tjhin (“Tjhin”),
signed and filed a dependency petition pursuant to California
Welfare and Institutions Code § 300, seeking to have Coby
made subject to the jurisdiction of the juvenile court. The
dependency petition included a three-page statement of facts
that described the findings of Suarez’s investigation. The Bel-
1
Because this case is before the panel on a 12(b)(6) motion, we must
take all factual allegations in the complaint as true, construing them in the
light most favorable to the moving party. Grosso v. Miramax Film Corp.,
400 F.3d 658 (9th Cir. 2005).
7570 BELTRAN v. SANTA CLARA COUNTY
trans assert that much of this information is untrue and that
Suarez and Tjhin deliberately fabricated evidence and sup-
pressed information favorable to the Beltrans.
Suarez also signed and filed an Application and Custody
Petition in Support of Protective Custody Warrant (“custody
petition”) pursuant to California Welfare and Institutions
Code § 340, requesting permission to remove Coby from his
home pending the conclusion of the dependency proceedings.
The custody petition incorporated the dependency petition by
reference. A Protective Custody Warrant was issued by the
court that same day. Two days later, on August 14, 2002,
Coby was removed from his parents’ custody pursuant to the
warrant and placed in a children’s shelter. On August 19,
2002, an initial detention hearing was held and the court
found that Coby should be detained and temporarily placed
under the care and supervision of the Department of Family
and Children’s Services. However, on September 16, 2002,
after a full hearing, the dependency petition was denied and
Coby was returned to his parents by order of the juvenile
court.
The Beltrans brought suit against Suarez and Tjhin under
42 U.S.C. § 1983 for their actions in connection with the tem-
porary removal of Coby from their custody and the attempt to
place him under the care and supervision of the state agency,
alleging violations of their rights of family association, pri-
vacy, and freedom from unreasonable seizure. The district
court concluded that Tjhin and Suarez were entitled to abso-
lute immunity for their actions in connection with the signing
and filing of the custody and dependency petitions, and dis-
missed the federal law claims that arose out of those actions.2
2
In district court, the Beltrans also alleged that various constitutional
violations occurred while Coby was in custody. Those violations are not
at issue on this appeal. Accordingly, defendants’ motion to strike pages 14
through 21 of appellants’ opening brief relating to these later violations is
granted.
BELTRAN v. SANTA CLARA COUNTY 7571
ANALYSIS
[1] The touchstone of the absolute immunity analysis is the
“nature of the function performed, not the identity of the actor
who performed it.” Kalina v. Fletcher, 522 U.S. 118, 127
(1997). Courts grant absolute immunity from liability for suits
arising out of the performance of functions that are necessary
to the judicial process. Miller v. Gammie, 335 F.3d 889, 896
(9th Cir. 2003) (en banc) (citing Imbler v. Pachtman, 424
U.S. 409, 430 (1976)). At early common law, this included
most actions of judges, grand jurors, and prosecutors. Imbler,
424 U.S. at 422-24. Witnesses testifying in court received
absolute immunity, but “complaining witnesses,” those swear-
ing to the facts in the initial complaint, did not. Kalina, 522
U.S. at 130-31; Burns v. Reed, 500 U.S. 478, 489-90 (1991).
Absolute immunity has been extended to the actions of other
state actors when they engage in functions that are quasi-
prosecutorial or quasi-judicial. Antoine v. Bryers & Anderson,
Inc., 508 U.S. 429, 435-36 (1993); see also Miller, 335 F.3d
at 897. However, the Court has not recognized absolute
immunity for acts that are “further removed from the judicial
phase of proceedings than the act of a prosecutor in seeking
an indictment.” Kalina, 522 U.S. at 128 (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). In this circuit, we have
determined that under this framework social workers are enti-
tled to absolute immunity for their “actions in investigating
and presenting evidence to the dependency court.” Doe v.
Lebbos, 348 F.3d 820, 825 (9th Cir. 2003).
On appeal, plaintiffs argue, first, that Tjhin is not eligible
for absolute immunity for swearing to the facts in the depen-
dency petition because when she did so she was acting as a
complaining witness, not entitled to immunity. See Kalina,
522 U.S. at 129. Second, they argue that Suarez is not entitled
to absolute immunity for filing the custody petition, because
this action is analogous to that of a police officer filing an
arrest warrant, for which only qualified immunity is available.
See Malley, 475 U.S. at 343.
7572 BELTRAN v. SANTA CLARA COUNTY
Here, as in Lebbos, plaintiffs complain that the social work-
ers failed to properly investigate the case prior to filing the
petitions and that they deliberately fabricated evidence pre-
sented to the dependency court. Lebbos extends absolute
immunity to the failure to investigate possible exculpatory
evidence and to the fabrication of evidence in dependency
petitions. Lebbos, 348 F.3d at 826. Immunity exists because
the social workers “engaged in these actions as part of [their]
initiation and pursuit of child dependency proceedings” and,
therefore, they “had the ‘requisite connection to the judicial
process’ to be protected by absolute immunity.” Id. (quoting
Miller, 335 F.3d at 896). Thus, under Lebbos, the defendants
are entitled to absolute immunity.
Plaintiffs urge us to distinguish Lebbos because Tjhin filed
the dependency petition under penalty of perjury, and Lebbos
fails to specify that the social worker did so in that case.
Plaintiffs argue that it is the act of verifying the petition that
makes the social worker like a complaining witness. How-
ever, the social worker in Lebbos undoubtedly verified the
statements in her dependency petition as California law
requires that dependency petitions be presented by a social
worker, that they include a statement of facts, and that they
“shall be verified.” CAL. WELF. & INST. CODE §§ 325, 332.
[2] Even if the Lebbos social worker did not do so, Lebbos
holds that social workers are immune for their “actions in
investigating and presenting evidence to the dependency
court,” which must realistically under the California proce-
dure include verifying the petition. Lebbos, 345 F.3d at 825.
The social worker’s responsibility to investigate the complaint
puts her in a different position vis-a-vis the legal proceeding
than the prosecutor in Kalina who, by verifying a petition,
“performed an act that any competent witness might have per-
formed.” Kalina, 522 U.S. at 129-30. Only a social worker
who performed or supervised the investigation can verify the
information presented to the court regarding that investiga-
tion. No one else can report both the opinions of those who
BELTRAN v. SANTA CLARA COUNTY 7573
interact with the family and the results of the investigation,
which include the investigator’s observations of the home and
the family interactions, and the Department’s assessment of
the relative credibility of the parties. In verifying a petition
with this information, the social worker or her supervisor does
not take a “shortcut,” as the dissent argues. Dis. op. at 7585.
She provides the court with valuable information not other-
wise available and verifies that information, which, by law,
must be verified. Moreover, rather than acting in a way that
is inconsistent with “the ethics of [her] profession,” as the
prosecutor did in Kalina, she is performing her responsibili-
ties as defined by California law. Kalina, 522 U.S. at 129-30.
It would defy reason to hold that a social worker is immune
for investigating the case, preparing and filing the petition,
and presenting evidence to the court, but not for signing and
verifying the petition that she is required to prepare and pres-
ent and that describes the investigation she is required to per-
form or supervise. Like all of these other acts, signing and
verifying the petition is “part of [the] initiation and pursuit of
child dependency proceedings.” Lebbos, 345 F.3d at 825.
Such acts are even more closely connected to the prosecution
of the case than the investigation, since the petition is actually
presented to the court. Accordingly, plaintiffs’ attempts to dis-
tinguish Lebbos on these grounds must fail.
[3] Plaintiffs also argue that even if absolute immunity is
applicable to the acts of signing and verifying dependency
petitions, social workers should not be absolutely immune for
similar acts with respect to custody petitions. They contend
that filing the latter form of petition is analogous to filing a
motion for an arrest warrant and, as such, is “further removed
from the judicial phase of . . . proceedings.” Kalina, 522 U.S.
at 128 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
This argument is likewise unavailing. We have already held
that social workers are entitled to absolute immunity for filing
custody petitions. Coverdell v. Dep’t of Soc. & Health Servs.,
834 F.2d 758, 764 (9th Cir 1987). Although the Supreme
Court has discussed absolute immunity since Coverdell was
7574 BELTRAN v. SANTA CLARA COUNTY
decided, and Coverdell was limited in part by Miller, 335
F.3d 889, the rationale of Lebbos makes clear that in this cir-
cuit Coverdell’s holding on this point is still good law. Like
filing a dependency petition, filing a custody petition is “part
of [the] initiation and pursuit of child dependency proceed-
ings.” Lebbos, 348 F.3d at 826. This close relationship to the
prosecution of the case is similar to that which exists when
prosecutors file petitions for arrest warrants, an act for which
absolute immunity is afforded. See Kalina, 522 U.S. at 129.
Indeed, the act of a social worker of filing a custody petition
is more integrally associated with the prosecution of the case
than the act of a prosecutor in filing an arrest warrant. A cus-
tody petition cannot be filed without a dependency petition
and rests on the same facts as the dependency petition. Also,
like the dependency petition, it is filed with the dependency
court in order to protect the child. Thus, it serves the same
goal as the dependency petition and is part of the same judi-
cial proceeding. Accordingly, we hold that, under Lebbos,
social workers have absolute immunity for preparing and fil-
ing custody petitions, just as they do for preparing and filing
dependency petitions. We also hold that, in light of the rela-
tionship we have just described between the two types of peti-
tions, the acts of signing and verifying custody petitions are
covered by absolute immunity for the same reasons that sign-
ing and verifying dependency petitions are.
[4] Plaintiffs further contend that the California legislature
has rejected absolute immunity for social workers’ submis-
sion of facts to the dependency court, and that we are bound
by California law. California Government Code § 820.21 pur-
ports to strip social workers of absolute immunity from liabil-
ity for perjury, fabrication of evidence, and failure to disclose
exculpatory evidence if committed with malice.3 Although
3
The statute states:
Notwithstanding any other provision of the law, the civil immu-
nity of juvenile court social workers, child protection workers,
BELTRAN v. SANTA CLARA COUNTY 7575
this Act eliminates immunity under state law, immunity for
§ 1983 purposes is set by federal law and cannot be overrid-
den by state legislatures. Wallis v. Spencer, 202 F.3d 1126,
1144 (9th Cir. 2000). Courts considering social workers’
immunity under federal law after the passage of § 820.21,
including the Lebbos court, have, accordingly, universally
ignored the statute. See, e.g., Lebbos, 348 F.3d 820; Miller,
335 F.3d 889; Mabe v. San Bernardino County Dep’t of Pub.
Soc. Servs., 237 F.3d 1101, 1109 (9th Cir. 2001).
In holding that the social workers are immune for their
actions in this case, we are not granting social workers abso-
lute immunity for “everything they do,” as the plaintiffs
argue. Rather, we follow Lebbos in recognizing a distinction
between the initiation and pursuit of dependency proceedings
and other discretionary decisions and recommendations.
Nothing in this decision undermines our holdings in Lebbos
and in Wallis, that social workers are not entitled to absolute
immunity for their actions relating to the maintenance and
care of children in state custody. Consistent with these cases,
we afford absolute immunity to social workers only for those
actions that are closely connected to the judicial process.
and other public employees authorized to initiate or conduct
investigations or proceedings pursuant to Chapter 2 (commencing
with Section 200) of Part 1 of Division 2 of the Welfare and
Institutions Code shall not extend to any of the following, if com-
mitted with malice:
(1) Perjury.
(2) Fabrication of evidence.
(3) Failure to disclose known exculpatory evidence.
(4) Obtaining testimony by duress, as defined in Section 1569 of
the Civil Code, fraud, as defined in either Section 1572 or Sec-
tion 1573 of the Civil Code, or undue influence, as defined in
Section 1575 of the Civil Code.
CAL. GOV’T CODE § 820.21(a).
7576 BELTRAN v. SANTA CLARA COUNTY
CONCLUSION
[5] We are bound by Lebbos and, accordingly, affirm the
district court’s grant of summary judgment on grounds of
absolute immunity as to both Suarez and Tjhin for their
actions in preparing, verifying, and filing the dependency and
custody petitions.
AFFIRMED.
REINHARDT, Circuit Judge, specially concurring, joined by
M. SMITH, Circuit Judge:
Doe v. Lebbos is binding law in this circuit. We are
required to follow it, and we do so. However, I write this sep-
arate concurrence to express my serious doubts as to the cor-
rectness of its holding that social workers are entitled to
absolute immunity for investigating dependency petitions.
We are required to evaluate absolute immunity claims by
analogy to the functions to which absolute immunity applied
at the time that 42 U.S.C. § 1983 was enacted. Kalina v.
Fletcher, 522 U.S. 118, 123-24 (1997). “[B]eyond those func-
tions historically recognized as absolutely immune at com-
mon law, qualified and only qualified immunity exists.”
Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (en
banc). For this reason, the Supreme Court has held that a
prosecutor is not entitled to absolute immunity for investigat-
ing or certifying a statement of facts in support of an arrest
warrant. Kalina, 522 U.S. at 129. The court explained that
“[w]hen a prosecutor performs the investigative functions
normally performed by a detective or police officer, it is nei-
ther appropriate nor justifiable that, for the same act, immu-
nity should protect the one and not the other.” Kalina, 522
U.S. at 126 (quoting Hampton v. Chicago, 484 F.2d 602, 608
(7th Cir. 1973), cert. denied, 415 U.S. 917 (1974)). I am
BELTRAN v. SANTA CLARA COUNTY 7577
aware of no rule in existence in 1871 giving any official abso-
lute immunity for any investigations, whether conducted in
preparation for a judicial proceeding or otherwise.
Nevertheless, Lebbos held that a social worker is entitled to
absolute immunity for her actions in investigating a complaint
—actions that, had they been performed by a detective, a
police officer, or a prosecutor, would not warrant absolute
immunity. In doing so, Lebbos granted absolute immunity to
social workers for the performance of a function to which
absolute immunity did not apply at common law. This is in
apparent contravention of the rule that it is “the nature of the
function performed, not the identity of the actor who per-
formed it” that matters for absolute immunity purposes.
Kalina, 522 U.S. at 127 (quoting Forrester v. White, 484 U.S.
219, 229 (1988)). Accordingly, I find Lebbos extremely diffi-
cult to reconcile with the established law of absolute immu-
nity.
FERGUSON, Circuit Judge, dissenting in part and specially
concurring in part:
Social worker Tjhin personally verified the factual allega-
tions contained in the dependency petition; in so doing, she
functioned as the sole complaining witness. See Kalina v.
Fletcher, 522 U.S. 118, 130-31 (1997) (ruling that certifying
truth of facts constitutes functioning as complaining witness).
The parents of Coby Beltran (“Coby”) assert that, in the veri-
fication to which Tjhin swore under penalty of perjury, she
made fraudulent allegations concerning the care the Beltrans
gave their son. The Supreme Court has consistently denied
absolute immunity to complaining witnesses making false
allegations. See, e.g., id. at 127 n.14 (quoting Malley v.
Briggs, 475 U.S. 335, 340-41 (1986)). The majority’s deci-
sion to grant immunity for this alleged fraud expands the doc-
trine of absolute immunity “beyond those functions
7578 BELTRAN v. SANTA CLARA COUNTY
historically recognized as absolutely immune at common
law.” Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003)
(en banc). I respectfully dissent.
I.
On August 12, 2002, social worker Emily Tjhin (“Tjhin”),
an employee of the Santa Clara County Social Services
Agency, Department of Family and Children’s Services,
signed and filed a dependency petition (“petition”), seeking to
have Coby made subject to the jurisdiction of the juvenile
court. The petition stated, inter alia, “Petitioner requests that
the court find these allegations to be true. I declare under pen-
alty of perjury under the laws of the State of California that
the foregoing and all attachments are true and correct.” The
petition included numerous allegations not known personally
by Tjhin but allegedly based on information provided by vari-
ous named and unnamed doctors. The petition also included
a few allegations not attributed to any source.
On the same day, another employee of the same agency,
social worker Melissa Suarez (“Suarez”), filed an Application
and Declaration in Support (“warrant application”), request-
ing that the juvenile court issue a warrant for the protective
custody of Coby, pursuant to Cal. Welf. & Inst. Code § 340.
The warrant application did not allege any additional facts but
referenced the petition filed by Tjhin. Although the requested
warrant was initially issued, the juvenile court later deter-
mined that Tjhin’s petition was without merit and ordered that
the child be returned to his parents.
II.
“The presumption is that qualified rather than absolute
immunity is sufficient to protect government officials in the
exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486-87
(1991). Even when government officers might deserve some
measure of immunity, the Supreme Court has “consistently
BELTRAN v. SANTA CLARA COUNTY 7579
‘emphasized that the official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.’ ” Antoine v. Byers & Anderson, 508
U.S. 429, 432 n.4 (1993) (quoting Burns, 500 U.S. at 486).
Although absolute immunity must be granted in a narrow cat-
egory of cases to protect the judicial process, it “leave[s] the
genuinely wronged [individual] without civil redress against
a [government official] whose malicious or dishonest action
deprives him of liberty.” Imbler v. Pachtman, 424 U.S. 409,
427 (1976). Therefore, the Supreme Court has repeatedly cau-
tioned, “We have been quite sparing in our recognition of
absolute immunity, and have refused to extend it any further
than its justification would warrant.” Antoine, 508 U.S. at 432
n.4 (quoting Burns, 500 U.S. at 487).
Absolute immunity against § 1983 suits is restricted “to
functions that enjoyed absolute immunity at common law in
1871.” Miller, 335 F.3d at 898. Prosecutors enjoyed absolute
immunity at common law with respect to “initiating a prose-
cution . . . and presenting the State’s case.” Imbler, 424 U.S.
at 431. Therefore, by analogy, Meyers v. Contra Costa
County Dep’t of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir.
1987), extended absolute immunity to social workers per-
forming prosecutorial functions. Other cases in this circuit
then further extended immunity for social workers. See, e.g.,
Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989); Coverdell v.
Dep’t of Soc. & Health Servs., 834 F.2d 758 (9th Cir. 1987).
However, based on subsequent Supreme Court guidance,
we later issued an en banc decision sharply limiting our prece-
dent. We ruled that the “scope of absolute immunity for social
workers is extremely narrow.” Miller, 335 F.3d at 892, 898.
We stated, “We must now recognize that beyond those func-
tions historically recognized as absolutely immune at com-
mon law, qualified and only qualified immunity exists.” Id. at
897. We overturned our previous social worker cases that
conflicted with Kalina, 522 U.S. 118, and Antoine, 508 U.S.
429, though we upheld Meyers, 812 F.2d 1154, because it
7580 BELTRAN v. SANTA CLARA COUNTY
“recognized absolute immunity for social workers only for the
discretionary, quasi-prosecutorial decisions to institute court
dependency proceedings.” Miller, 335 F.3d at 892, 898
(emphasis added). Finally, we clarified the source of social
workers’ and prosecutors’ immunity: it “is only the specific
function performed, and not the role or title of the official,
that is the touchstone of absolute immunity.” Id. at 897 (citing
Kalina, 522 U.S. at 127) (emphasis added).
III.
Complaining witnesses were not absolutely immune at
common law. Kalina, 522 U.S. at 127 n.14 (quotation omit-
ted). As the majority recognizes, that remains the rule today:
“Witnesses testifying in court receive[ ] absolute immunity,
but ‘complaining witnesses,’ those swearing to the facts in
[an] initial complaint, d[o] not.” Maj. op. at 7571 (citing
Kalina, 522 U.S. at 130-31). In Kalina, the most recent
Supreme Court case to address the scope of prosecutors’
absolute immunity, the Court ruled that absolute immunity
was not available to a prosecutor where she swore to the truth
of the facts supporting her motion for an arrest warrant. 522
U.S. at 129-31. Although a prosecutor has absolute immunity
“for preparing and filing charging documents” that initiate a
proceeding, that immunity does not extend where she is “per-
sonally attesting to the truth of evidence in support of charg-
ing documents.” Genzler v. Longanbach, 410 F.3d 630, 637
(9th Cir. 2005) (citing Kalina, 522 U.S. at 130).
Since Kalina, the Ninth Circuit has repeatedly held that
prosecutors are not entitled to absolute immunity when they
swear to facts underlying a charging document. See Genzler,
410 F.3d at 637; Milstein v. Cooley, 257 F.3d 1004, 1010 (9th
Cir. 2001); Morley v. Walker, 175 F.3d 756, 760 (9th Cir.
1999). “[I]n personally attesting, ‘[the prosecutor in Kalina]
performed an act that any competent witness might have per-
formed,’ and was thus not entitled to absolute immunity.”
Milstein, 257 F.3d at 1010 (quoting Kalina, 522 U.S. at 129-
BELTRAN v. SANTA CLARA COUNTY 7581
30); see id. (quoting Kalina, 522 U.S. at 131) (“[T]he only
function that [the prosecutor] performs in giving sworn testi-
mony is that of a witness.”); Morley, 175 F.3d at 760 (where
prosecutor signs and submits affidavit in support of arrest
warrant, he acts as a witness,“[l]ike the prosecutor in Kalina,”
and is not entitled to absolute immunity); see also Malley, 475
U.S. at 340-41 (like complaining witness, police officer
swearing to affidavit in support of warrant not afforded abso-
lute immunity). The function of social worker Tjhin, person-
ally verifying the factual allegations in the dependency
petition, is indistinguishable from that of the prosecutor in
Kalina, personally certifying the factual allegations in support
of her filing papers. Kalina dictates that absolute immunity
cannot shield Tjhin’s allegedly fraudulent statements.
IV.
Contrary to the majority’s view, maj. op. at 7573, present-
ing testimonial evidence is distinct from personally swearing
to the truth of that evidence. Kalina, 522 U.S. at 129-30.
Where the petitioner does not allege that the prosecutor per-
sonally swore to the facts, absolute immunity may be appro-
priate. See Burns, 500 U.S. at 491; Imbler, 424 U.S. at 430;
Milstein, 257 F.3d at 1012. But in Doe v. Lebbos, 348 F.3d
820, 825 (9th Cir. 2003), cited by the majority, there was no
argument that the social worker actually swore to the facts
contained in the dependency petition.1 Kalina and all of this
circuit’s cases since Lebbos demand that the function of pre-
senting evidence be distinguished from submitting one’s own
testimony. See Kalina, 522 U.S. at 129-30, Genzler, 410 F.3d
at 637; Milstein, 257 F.3d at 1010-11, 1012; Morley, 175 F.3d
at 760.
The majority asserts that a “realistic” interpretation of Cali-
1
The majority decides that “the social worker in Lebbos undoubtedly
verified the statements in her dependency petition,” maj. op. at 7572, but
the Lebbos opinion provides no basis for this conclusion.
7582 BELTRAN v. SANTA CLARA COUNTY
fornia law nonetheless requires a grant of absolute immunity
for social workers personally swearing to facts underlying a
dependency petition. Maj. op. at 7572. On the contrary, Cali-
fornia law expressly dictates that no immunity lies where a
social worker has maliciously engaged in perjury. Cal. Gov’t
Code § 820.21(a). The California legislature apparently did
not believe it “would defy reason,” maj. op. at 7573, to find
a social worker liable for malicious, false testimony despite
any immunity for the initiation of proceedings, related investi-
gations, or presentation of evidence to the court.2
The majority claims that swearing to facts in support of a
petition must be immune because “signing and verifying the
petition is part of the initiation and pursuit of child depen-
dency proceedings.” Maj. op. at 7573 (quotation and internal
punctuation omitted). But the Supreme Court specifically
rejected this “packaged” approach to absolute immunity in
Kalina, 522 U.S. at 129-30. When the petitioner in Kalina
2
The State of California has decided that when the most cherished of
human relationships is involved—the relationship between parents and
their children—any immunity for social workers who interfere with such
bonds shall be limited:
Notwithstanding any other provision of the law, the civil immu-
nity of juvenile court social workers, child protection workers,
and other public employees authorized to initiate or conduct
investigations or proceedings pursuant to Chapter 2 (commencing
with Section 200) of Part 1 of Division 2 of the Welfare and
Institutions Code shall not extend to any of the following, if com-
mitted with malice:
(1) Perjury.
(2) Fabrication of evidence.
(3) Failure to disclose known exculpatory evidence.
(4) Obtaining testimony by duress, as defined in Section 1569 of
the Civil Code, fraud, as defined in either Section 1572 or Sec-
tion 1573 of the Civil Code, or undue influence, as defined in
Section 1575 of the Civil Code.
Cal. Gov’t Code § 820.21(a) (emphasis added).
BELTRAN v. SANTA CLARA COUNTY 7583
argued that executing the certificate “summariz[ing] the evi-
dence supporting the charge,” id. at 121, was “integral to the
initiation of the proceeding,” id. at 130, the Court disagreed:
That characterization is appropriate for her drafting
of the certification, her determination that the evi-
dence was sufficiently strong to justify a probable-
cause finding, her decision to file charges, and her
presentation of the information and the motion to the
court. Each of those matters involved the exercise of
professional judgment; indeed even the selection of
the particular facts to include in the certification to
provide the evidentiary support for the finding of
probable cause required the exercise of judgment of
the advocate. But that judgment could not affect the
truth or falsity of the factual statements themselves.
Testifying about facts is the function of the witness
....
Id. at 130-31.
The majority may find the distinction between prosecu-
torial and testimonial functions to be impractical, but this dis-
tinction was expressly endorsed, and indeed has been
mandated, by the Supreme Court. Id. at 129 (“[P]etitioner’s
activities in connection with the preparation and filing of two
of the three charging documents—the information and the
motion for an arrest warrant—are protected by absolute
immunity. . . . The critical question, however, is whether she
was acting as a complaining witness rather than a lawyer
when she executed the certification under ‘penalty of perju-
ry.’ ”).
V.
The majority also asserts that the social worker’s act of
swearing to the facts underlying the petition must be abso-
lutely protected because California law requires social work-
7584 BELTRAN v. SANTA CLARA COUNTY
ers to file verified petitions. Maj. op. at 7572. This argument,
too, was expressly rejected by the Supreme Court. Kalina,
522 U.S. at 129-30; see also Miller, 335 F.3d at 897 (citing
Antoine, 508 U.S. at 435-36) (“Even actions taken with court
approval or under a court’s direction are not in and of them-
selves entitled to quasi-judicial, absolute immunity.”).
In Kalina, the Supreme Court found unsatisfactory the
prosecutor’s assertion that she had executed the certification
only because Washington State law required an arrest warrant
application to be supported by sworn testimony establishing
the grounds for it. 522 U.S. at 129-30. The Court explained
that, regardless of Washington’s requirement of certification
in support of an application, no law required the prosecutor
herself to make the certification; rather, “petitioner performed
an act that any competent witness might have performed.” Id.
at 129-30.
Similarly, although the majority is correct that California
requires that dependency petitions “be verified,” maj. op. at
7572 (quoting Cal. Welf. & Inst. Code §§ 523, 332), the
majority can cite no statutory or other authority requiring that
the social worker make the verification. See id.; Kalina, 522
U.S. at 130 (finding no absolute immunity “[e]ven if she may
have been following a practice that was routinely employed
by her colleagues”). This case in particular demonstrates that
the social worker cannot be obligated to swear personally to
the underlying allegations. This case involves allegations of
medical neglect, so the social worker cannot possibly verify
personally the truth of the medical opinions upon which she
bases the petition: she lacks the personal knowledge and the
expertise. The appropriate course of conduct would have been
to attach sworn affidavits from medical professionals who
were qualified to testify as to their observations. See Cal.
Welf. & Inst. Code § 332(f) (petition must contain “concise
statement of facts, separately stated”). Submitting a petition
with such supporting statements would have constituted func-
tioning in a prosecutorial role and presenting evidence, and
BELTRAN v. SANTA CLARA COUNTY 7585
such action would have been entitled to absolute immunity.
Here, however, the social worker took a shortcut, choosing to
draft her version of the factual allegations in support of the
petition and to personally swear, under penalty of perjury, to
the truth and accuracy of all such allegations. She cannot be
absolutely immune for such conduct.
VI.
The majority also attempts to distinguish Kalina on the
basis that, unlike prosecutors, social workers are required by
California law to conduct investigations. Maj. op. at 7572.
First, as the majority acknowledges, maj. op. at 7571, it is the
function, not the title, that determines an actor’s immunity,
and it is not the social worker’s investigation function at issue
in this case but the function of swearing to facts underlying
the petition. Second, the majority’s logic implies that social
workers receive greater immunity than prosecutors. See maj.
op. at 7572-73, 7574-75. This implication defies Supreme
Court and Ninth Circuit precedent.
Social workers’ functions are granted immunity only to the
extent that they are analogous to prosecutorial functions
immune at common law. See, e.g., Miller, 335 F.3d at 892
(“We must now recognize that beyond those functions histori-
cally recognized as absolutely immune at common law, quali-
fied and only qualified immunity exists.”); Safouane v. Fleck,
No. 05-35394, 2007 WL 1031460, *6 (9th Cir. March 30,
2007) (mem.) (citation omitted) (“[I]n Miller, we held that
[prior Ninth Circuit precedent] had been overruled by subse-
quent Supreme Court decisions to the extent it granted abso-
lute prosecutorial immunity to social workers for duties
beyond which prosecutors were rendered immune at common
law.”). Social workers did not exist at common law; their
immunity derives only from the analogy between their activi-
ties and prosecutorial functions. Meyers, 812 F.2d at 1157
(first recognizing social workers’ immunity based on prosecu-
torial analogy). Because social workers’ immunity today is
7586 BELTRAN v. SANTA CLARA COUNTY
derivative of prosecutors’ immunity at common law, the for-
mer cannot exceed the scope of the latter. See Antoine, 508
U.S. at 434 (finding no absolute immunity for court reporters,
whose function did not exist at common law, as analogy to
judicial function was inapposite). For the majority to expand
absolute immunity for social workers by highlighting differ-
ences between prosecutors and social workers is to stand the
doctrine of absolute immunity on its head.3
VII.
I would not extend absolute immunity to social workers
functioning as complaining witnesses. I therefore respectfully
dissent from the majority’s decision granting absolute immu-
nity for social worker Tjhin.
VIII.
I do not dissent from the majority’s holding that social
worker Suarez benefits from absolute immunity, because I
believe that ruling conforms with Kalina, 522 U.S. at 129
3
The majority relies heavily on Lebbos, see maj. op. at 7576, but that
decision did not address immunity for social workers functioning as com-
plaining witnesses. I admire and empathize with the majority judges on the
panel, and I recognize the requirement that we follow Ninth Circuit rulings
no matter how wrong those rulings are, see concur. op. at 7576, but I sim-
ply do not believe that Lebbos—which happens to have been decided just
a few months after Miller—mandates the result reached by the majority.
As an aside, I agree with the reasoning of the concurrence, see concur.
op. at 7576-77, and believe that Lebbos is an aberration inconsistent with
all relevant rulings issued before and after. Compare Lebbos, 348 F.3d at
823, 825 (absolute immunity for investigation and fabrication of evi-
dence), with Kalina, 522 U.S. at 126 (no absolute immunity for investiga-
tive function); Buckley v. Fitzsimmons, 509 U.S. 259, 272-76 (1993) (no
absolute immunity for investigation, nor for fabrication of evidence); Mil-
stein, 257 F.3d at 1010, 1011 (same); see also Miller, 335 F.3d at 898 (cit-
ing with approval cases finding no absolute immunity applied to
“investigating whether a removal petition should be filed” nor to “seeking
a protective custody order that did not initiate court proceedings.”).
BELTRAN v. SANTA CLARA COUNTY 7587
(“activities in connection with the preparation and filing of
. . . the motion for an arrest warrant are protected by absolute
immunity”) (internal punctuation omitted). However, I cannot
agree with the majority’s reasoning.
Both the Supreme Court and this court’s en banc decision
in Miller rejected the majority’s approach of focusing on a
“close[ ] connect[ion] to the judicial process.” Compare maj.
op. at 7575, with Miller, 335 F.3d at 897 (“The relation of the
action to a judicial proceeding, the test we formulated in Bab-
cock, is no longer a relevant standard.”). The Supreme Court
emphasized that immunity for a particular action depends on
analytic comparability to a judicial function, not merely con-
nection to a judicial proceeding. Compare maj. op. at 7573,
7574 (relying on “close relationship” between social workers’
activities and “prosecution of the case”), with Kalina, 522
U.S. at 129, 131 (ruling that prosecutor’s act of swearing to
certification was not immune, although closely connected to
prosecution and although filing was conducted simultaneously
with filing of two other charging documents), and Antoine,
508 U.S. at 435, 436 (rejecting argument “that absolute
immunity be extended to court reporters because they are
‘part of the judicial function,’ ” and explaining, “When judi-
cial immunity is extended to officials other than judges, it is
because their judgments are ‘functionally comparable’ to
those of judges . . . .”) (punctuation partially omitted and cita-
tion omitted).
Additionally, Miller abrogated Coverdell, 834 F.2d 758,
upon which the majority relies. See maj. op. at 7574 (citing
Coverdell, 834 F.2d at 764); compare Coverdell, 834 F.2d at
764 (granting immunity for social worker filing custody peti-
tion “[b]ecause [her] actions in seeking and obtaining a court
order were within the scope of her statutory authority as a
quasi-prosecutor”), and id. at 765 (granting absolute immu-
nity for execution of court order), with Miller, 335 F.3d at 897
(“Official performing the duties of advocate or judge may
enjoy absolute immunity for some functions traditionally per-
7588 BELTRAN v. SANTA CLARA COUNTY
formed at common law, but that protection does not extend to
many of their other functions.”), and id. (citation omitted)
(“Even actions taken with court approval or under a court’s
direction are not in and of themselves entitled to quasi-
judicial, absolute immunity.”); see also Antoine, 508 U.S. at
436 (declining to extend absolute immunity to court reporters,
who conduct activities “required by statute”).
As discussed above, supra p. 7579-80, in Miller, we over-
ruled our previous cases that had improperly expanded the
scope of absolute immunity for social workers. 335 F.3d at
892 (“Supreme Court decisions have taken an approach that
is fundamentally inconsistent with the reasoning of our earlier
circuit authority . . . .”). To the extent that the majority relies
on Coverdell, it relies on overruled jurisprudence.
IX.
For the above reasons, I respectfully dissent.