Preslie Hardwick v. County of Orange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRESLIE HARDWICK, No. 17-56292

Plaintiff-Appellant,

D.C. No.

v. 8:13-cv-01390-

JLS-AN

COUNTY OF ORANGE; MARCIA

VREEKEN; ELAINE WILKINS; THE

ESTATE OF HELEN DWOJAK, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Argued and Submitted April 11, 2019

Pasadena, California

Filed November 18, 2020

Before: A. Wallace Tashima and Richard A. Paez, Circuit

Judges, and William Alsup, * District Judge.

Opinion by Judge Paez;

Partial Concurrence by Judge Tashima

*

The Honorable William Alsup, United States District Judge for the

Northern District of California, sitting by designation.

2 HARDWICK V. COUNTY OF ORANGE

SUMMARY **

Civil Rights

The panel affirmed the district court’s judgment that

plaintiff could not invoke issue preclusion to bar litigation in

her action against Orange County and County social workers

alleging Fourth and Fourteenth Amendment violations

arising from plaintiff’s removal from her mother’s custody.

A juvenile court ordered plaintiff’s removal in 2000, in

the midst of dependency proceedings arising from her

parents’ divorce litigation. Plaintiff’s mother brought a state

court action in 2001 against County social workers, and a

jury found that defendants violated the mother’s right to

familial association and awarded damages. Plaintiff

subsequently filed her federal action in 2013 against the

same defendants, arguing in part, that her mother’s prior

state court litigation conclusively determined that her

removal from her mother’s custody violated her right of

familial association. Plaintiff argued that defendants were

therefore precluded from relitigating the issue of liability.

The panel held that where constitutional familial rights

are at stake, there are identical companionship rights

between a parent and child that could allow a plaintiff to

invoke issue preclusion to bar relitigation of issues

previously decided. In this case, however, plaintiff could not

assert issue preclusion because her mother litigated more

than just the overlapping companionship rights in her state

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HARDWICK V. COUNTY OF ORANGE 3

court case and the panel could not determine the basis for the

jury’s verdict. Plaintiff therefore failed to establish that the

issues litigated in the prior state proceeding were identical to

the issues raised in her federal case.

Concurring in part and concurring in the judgment,

Judge Tashima stated that he concurred in the judgment on

the ground that plaintiff failed to establish the application of

issue preclusion because of the special verdict’s ambiguity

in the prior case. Judge Tashima wrote, however, that the

majority engaged in an unnecessary discussion of the

contours of the familial association right, and he dissociated

himself from the majority’s assertion that a child’s

correlative right of familial association includes no custody

component.

COUNSEL

Robert R. Powell (argued), Powell & Associates, San Jose,

California; Dennis R. Ingols, Law Office of Dennis R.

Ingols, San Jose, California; for Plaintiff-Appellant.

Norman J. Watkins (argued) and Pancy Lin, Lynberg &

Watkins APC, Orange, California, for Defendants-

Appellees.

4 HARDWICK V. COUNTY OF ORANGE

OPINION

PAEZ, Circuit Judge:

In November 1999, the Orange County Social Services

Agency (“SSA”) filed a dependency petition on behalf of

Preslie Hardwick and her sister, Kendall Hardwick, against

their parents, Cary and Deanna Hardwick. 1 The juvenile

dependency court assumed jurisdiction over the children, but

the court permitted the children to remain in their mother’s

custody and to have supervised visitation with their father.

During the course of the dependency proceedings, the social

workers informed the court about missed visits and phone

calls between the children and their father. Defendant

Marcia Vreeken, a social worker, also represented to the

court that Hardwick told the children their father was trying

to take them away from her. In February 2000, the

dependency court ordered that Preslie and Kendall be

removed from Hardwick’s custody.

In 2001, Hardwick filed an action in California superior

court, asserting, among other claims, that County of Orange

(“Orange County”) social workers, including Vreeken,

Vreeken’s supervisor, Helen Dwojak, and another social

worker, Elaine Wilkens, violated her constitutional right to

familial association. Hardwick alleged that Vreeken and

Dwojak fabricated evidence and made misrepresentations to

the dependency court to obtain removal of her daughters

from her custody. Hardwick’s case proceeded to trial against

the social workers and Orange County. The jury returned

1

We refer to Deanna Hardwick as “Hardwick” throughout the

opinion.

HARDWICK V. COUNTY OF ORANGE 5

verdicts in favor of Hardwick against all defendants, except

Wilkens.

Preslie filed this federal action in 2013, alleging that

Vreeken, Dwojak, Wilkens, and Orange County violated her

Fourteenth Amendment right to familial association and her

Fourth Amendment right against wrongful seizure. In a

pretrial motion, she argued that her mother’s prior state

litigation conclusively determined that her removal from her

mother’s custody violated her right of familial association.

She argued that Defendants Vreeken, Dwojak, and Orange

County were precluded from relitigating the issue of

liability.

The sole issue presented for review is whether the district

court properly concluded that Preslie could not invoke

collateral estoppel, which is also referred to as issue

preclusion, because the rights at issue in Hardwick’s state

case and Preslie’s federal case were not identical. 2 We have

jurisdiction under 28 U.S.C. § 1291 and we affirm. We hold

that where constitutional familial rights are at stake, there are

identical companionship rights between a parent and child

that could allow a plaintiff to invoke issue preclusion to bar

relitigation of issues previously decided. In this case,

however, Preslie cannot assert issue preclusion because

Hardwick litigated more than just the overlapping

companionship rights in her state court case and we cannot

determine the basis for the jury’s verdict.

2

Although the district court and the parties use collateral estoppel

and issue preclusion interchangeably, we will follow the California

Supreme Court’s recent pronouncement that it will use the term “‘issue

preclusion’ to encompass the notion of collateral estoppel.” DKN

Holdings LLC v. Faerber, 352 P.3d 378, 386 (Cal. 2015); see also

NTCH-WA, Inc. v. ZTE Corp., 921 F.3d 1175, 1178 n.1 (9th Cir. 2019).

6 HARDWICK V. COUNTY OF ORANGE

I. BACKGROUND

A. Factual Background

In June 1999, in the midst of contentious custody

proceedings, six-year old Preslie and her sister, nine-year old

Kendall, were enrolled in therapy to assist with their

adjustment to their parents’ divorce and their father’s

remarriage. During the course of this therapy, Kendall

disclosed to the therapist allegations of sexual abuse by her

father. The therapist reported the allegations to child

protective services and, in November 1999, the SSA filed a

dependency petition on behalf of Preslie and Kendall. 3 The

juvenile dependency court assumed jurisdiction over the

children, but the children remained in Hardwick’s custody

and had supervised visitation with their father.

In December 1999, county social worker Rachel Davis

filed a comprehensive report with the dependency court.

The report recommended that the children remain in their

mother’s home under the supervision of the SSA and

contingent upon Hardwick’s full cooperation with a family

case plan. The report also recommended weekly monitored

visits between the children and their father. In January 2000,

social worker Vreeken assumed responsibility for the

Hardwick case.

At a court hearing in early February 2000, the

dependency court learned of failed visits and phone calls

between the children and their father. The court admonished

Hardwick that if she did not comply with the visitation and

3

The petition alleged that Cary Hardwick sexually abused his

daughter Kendall and that her parents “knew or reasonably should have

known the child was at risk of harm and . . . failed to protect.”

HARDWICK V. COUNTY OF ORANGE 7

phone call schedule, the court would likely remove the

children from her care. After another missed visit and after

Vreeken represented to the court that Hardwick, in

Wilkens’s presence, told her daughters that their father was

trying to take them away from her, the court ordered the SSA

to remove the children from Hardwick’s care. 4 Preslie

contends that Vreeken and Dwojak made misrepresentations

to the dependency court and repeatedly suppressed evidence

throughout the dependency proceedings, despite their

knowledge that Hardwick was a fit parent.

As ordered by the dependency court, Preslie and Kendall

were promptly removed from Hardwick’s custody. They

were initially placed in a temporary children’s shelter and

then into a foster home. Eventually, in May 2000, Preslie

and Kendall were placed in their father’s custody while their

mother was allowed supervised visitation. The dependency

court ultimately terminated the dependency case and the

custody dispute continued in family court.

B. Hardwick’s State Court Case

In February 2001, Hardwick filed suit in California

superior court against various defendants, including

Vreeken, Dwojak, Wilkens, and Orange County. She sought

damages and injunctive relief. Hardwick alleged, inter alia,

that Vreeken and Dwojok’s actions deprived her of her

Fourteenth Amendment right to familial association with her

4

Although Wilkens was named as a defendant in both Hardwick’s

state case and in this case, Preslie did not seek to apply issue preclusion

against Wilkens, as the state court jury returned a verdict in favor of

Wilkens on all of Hardwick’s claims. Accordingly, Preslie’s claim

against Wilkens is not at issue in this appeal.

8 HARDWICK V. COUNTY OF ORANGE

children. She also alleged that Orange County failed to

supervise and train its SSA social workers.

The state case proceeded to a jury trial. When instructing

the jury on Hardwick’s constitutional claim, among other

matters, the court instructed the jury that Hardwick had to

prove “[t]hat defendant’s conduct violated [Hardwick’s]

right of familial association including her right to the care

and custody of her two minor children, Kendall and Preslie;

or violated her right to privacy.” 5 Through a series of special

verdicts, the jury found that Vreeken and Dwojak

“intentionally violate[d] the plaintiff’s right to familial

association or right to privacy.” The jury also found that

Orange County provided inadequate training or supervision

to its employees and that its failure to do so was “the cause

of the deprivation of [Hardwick’s] right of familial

association.” The jury awarded Hardwick monetary

damages. The court also entered a permanent injunction

enjoining certain practices of SSA social workers when

pursuing dependency proceedings. The California Court of

Appeal affirmed the judgment, except for the trial court’s

award of injunctive relief. 6

5

The court also instructed the jury on the other elements of

Hardwick’s claim. Specifically, the court instructed the jury that

Hardwick needed to prove that the social workers “intentionally removed

and/or caused the removal and/or detention of” Hardwick’s children, “or

otherwise interfered with her rights as a parent;” that the social workers

“act[ed] or purport[ed] to act in the performance of [their] official

duties;” that Hardwick “was harmed;” and that the social workers’

“conduct was a substantial factor in” the harm.

6

The California Court of Appeal took issue with the injunctive relief

granted by the trial court. The injunction permanently restrained Orange

County and SSA employees from (1) including allegations in a juvenile

dependency petition without reasonable suspicion of abuse, neglect or

HARDWICK V. COUNTY OF ORANGE 9

C. Preslie’s Federal Action

Preslie, after obtaining the age of majority, filed this

action in September 2013 against various defendants

including Orange County, Vreeken, Dwojak, and Wilkens.

Preslie alleged that the individual defendants violated her

right to be free from unreasonable seizure under the Fourth

Amendment and her right to familial association under the

Fourteenth Amendment when they caused her removal from

her mother’s custody without proper or just cause. More

specifically, Preslie alleged that the defendant social workers

violated her familial associational rights by “unlawfully

removing her from the custody and care of her mother and

continuing to detain her despite [their] knowledge that she

was removed and detained based on Defendants’ lies,

suppressions, and fabrications.” She also brought a Monell

claim against Orange County, alleging that the County

established and/or followed policies that were the moving

force behind the violations of her constitutional rights. See

Monell v. Dep’t of Soc. Servs. 436 U.S. 658 (1978).

In a pretrial motion under Federal Rule of Civil

Procedure 56(a), Preslie sought summary adjudication of the

defendants’ liability on her familial association and Monell

claims. She argued that, in light of the verdicts and judgment

in Hardwick’s state case, her removal from her mother’s

custody violated her constitutional right of familial

association and that any defenses Vreeken, Dwojak, and

Orange County raised or could have “raised in prior

abandonment and (2) requiring parents or guardians to sign a temporary

release of confidential information without reasonable suspicion. See

Fogarty-Hardwick v. Cnty. of Orange, No. G039045, 2010 WL

2354383, at *19–20 (Cal. Ct. App. June 14, 2010). The court struck the

injunctive relief from the judgment but affirmed the judgment in all other

respects.

10 HARDWICK V. COUNTY OF ORANGE

litigation, have already been conclusively determined in

prior litigation.” Defendants filed a cross-motion for

summary judgment asserting that the claims against the

individual defendants were barred by qualified immunity,

absolute immunity, or were without merit. They also argued

that Preslie’s Monell municipal liability claim against

Orange County was meritless.

In April 2015, the district court granted in part and

denied in part the summary judgment and summary

adjudication motions. The court rejected Preslie’s claim that

Vreeken, Dwojak, and Orange County were “collaterally

estopped from litigating the issue of liability” and denied her

motion. The district court granted summary judgment in

favor of Orange County on Preslie’s Monell claim but

rejected the defendant social workers’ claim that they were

entitled to absolute or qualified immunity. 7

The remaining claims were tried before a jury. The jury

ultimately returned a verdict in favor of Vreeken and

Dwojak. Preslie timely appealed. On appeal, Preslie only

challenges the district court’s ruling that she could not

invoke the judgment in Hardwick’s case to bar Vreeken,

Dwojak, and Orange County from relitigating their liability

on Preslie’s familial association and Monell claims.

7

The defendant social workers filed an interlocutory appeal

challenging the denial of their qualified immunity defenses. See

Hardwick v. Cnty. of Orange, 844 F.3d 1112, 1114 (9th Cir. 2017). In

support of their immunity defense, the defendant social workers argued

that Preslie’s constitutional right to be free from deliberately fabricated

evidence had not yet been clearly established in the civil proceeding

context. Id. at 1116–17. We disagreed and affirmed the district court’s

order denying absolute or qualified immunity. Id. at 1116.

HARDWICK V. COUNTY OF ORANGE 11

II. STANDARD OF REVIEW

We review de novo “a district court’s summary

[adjudication]” and “whether issue preclusion is available.”

Sec. & Exch. Comm’n v. Stein, 906 F.3d 823, 828 (9th Cir.

2018). “If issue preclusion is available, the district court’s

decision to apply the doctrine is reviewed for abuse of

discretion.” Id.

III. DISCUSSION

A. Issue Preclusion

This appeal turns on whether the district court properly

concluded that Preslie could not invoke issue preclusion in

her federal case. “[A] federal court considering whether to

apply issue preclusion based on a prior state court judgment

must look to state preclusion law.” McInnes v. California.,

943 F.2d 1088, 1092–93 (9th Cir. 1991).

In California, “[i]ssue preclusion prohibits the

relitigation of issues argued and decided in a previous case,

even if the second suit raises different causes of action.”

DKN Holdings LLC v. Faerber, 352 P.3d 378, 386 (Cal.

2015). Issue preclusion “prevents a party from obtaining a

second adjudication of an issue that has already been

adjudicated against that party on the merits by a court of

competent jurisdiction.” Pajaro Valley Water Mgmt.

Agency v. McGrath, 27 Cal. Rptr. 3d 741, 745 (Ct. App.

2005). Issue preclusion applies: “(1) after final adjudication

(2) of an identical issue (3) actually litigated and necessarily

decided in the first suit and (4) asserted against one who was

a party in the first suit or one in privity with that party.” DKN

Holdings, 352 P.3d at 387. “The party asserting collateral

estoppel [issue preclusion] bears the burden of establishing

these requirements.” Lucido v. Superior Court, 795 P.2d

12 HARDWICK V. COUNTY OF ORANGE

1223, 1225 (Cal. 1990). “The ‘identical issue’ requirement

addresses whether ‘identical factual allegations’ are at stake

in the two proceedings, not whether the ultimate issues or

dispositions are the same.” 8 Id.; see also Key v. Tyler,

246 Cal. Rptr. 3d 224, 248 (Ct. App. 2019).

Preslie argues that given the nature of Hardwick’s

successful lawsuit against the same defendants, the district

court erred in refusing to bar Vreeken, Dwojak, and Orange

County from relitigating their liability in this case. As we

explain, Preslie misperceives the extent of her constitutional

right of familial association and she disregards the ambiguity

of the state court jury’s special verdicts. We address the

claims against the individual defendants first and then turn

to the Monell claims against Orange County.

B. Vreeken and Dwojak

“Parents and children have a well-elaborated

constitutional right to live together without governmental

interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th

Cir. 2000). “That right is an essential liberty interest

protected by the Fourteenth Amendment’s guarantee that

parents and children will not be separated by the state

without due process of law except in an emergency.” 9 Id.

8

The parties dispute whether the issues in Preslie’s federal case are

identical to those in Hardwick’s state case, but they do not dispute

whether any of the other elements of issue preclusion are satisfied. Thus,

this appeal turns on whether the issues in the two proceedings are

identical.

9

“Courts have characterized the right to familial association as

having both a substantive and a procedural component.” Keates v. Koile,

883 F.3d 1228, 1236 (9th Cir. 2018). “While the right is a fundamental

liberty interest, officials may interfere with the right if they provide the

HARDWICK V. COUNTY OF ORANGE 13

Moreover, “the 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].” Troxel v. Granville, 530 U.S. 57, 65 (2000); see

e.g., Pierce v. Soc’y of the Sisters, 268 U.S. 510, 530, 534–

35 (1925) (requiring parents to send their children to public

school “unreasonably interferes with the liberty of parents

and guardians to direct the upbringing and education of

children under their control”). Thus, parents have both a

constitutional interest in “the companionship of their

children” and a “constitutionally protected interest in raising

their children.” Smith v. City of Fontana, 818 F.2d 1411,

1418 (9th Cir. 1987), overruled on other grounds by

Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.

1999).

The “constitutional interest in familial companionship

and society logically extends to protect children from

unwarranted state interference with their relationships with

their parents.” Id. at 1418. “The companionship and

nurturing interests of parent and child in maintaining a tight

familial bond are reciprocal” and the distinction “between

the parent-child and the child-parent relationships does not

. . . justify constitutional protection for one but not the

other.” Id. at 1418–19. There is “no reason to accord less

constitutional value to the child-parent relationship than . . .

to the parent-child relationship.” Id. at 1418. Therefore, “a

child’s interest in her relationship with a parent is

sufficiently weighty by itself to constitute a cognizable

liberty interest.” Id. at 1419. Yet, “[w]hen . . . a child claims

constitutional protection for her relationship with a parent,

parents with fundamentally fair procedures.” Id. (internal quotation

marks and citations omitted).

14 HARDWICK V. COUNTY OF ORANGE

there is no custodial interest implicated, but only a

companionship interest.” Id.

Parental claims that their children were unlawfully

removed from their custody “should properly be assessed

under the Fourteenth Amendment standard for interference

with the right to family association.” 10 Wallis, 202 F.3d

at 1137 n.8. However, we “evaluate the claims of children

who are taken into state custody under the Fourth

Amendment right to be free from unreasonable seizures

rather than the Fourteenth Amendment right to familial

association.” Keates, 883 F.3d at 1235 (internal quotation

marks omitted). “Despite the different constitutional source

of the right, . . . ‘the same legal standard applies in

evaluating Fourth and Fourteenth Amendment claims for the

removal of children.’” Id. (quoting Wallis, 202 F.3d at 1137

n.8.).

Preslie argues that her familial association claim against

Vreeken and Dwojak is identical to the familial association

claim that her mother successfully litigated in state court. 11

10

Although not at issue in this case, we recognize that the First

Amendment also protects “those relationships, including family

relationships, that presuppose deep attachments and commitments to the

necessarily few other individuals with whom one shares not only a

special community of thoughts, experiences, and beliefs but also

distinctively personal aspects of one’s life.” Bd. of Dirs. of Rotary Int’l

v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (internal quotation

marks and citation omitted). Accordingly, we have recognized claims

“under both the First and Fourteenth Amendment for unwarranted

interference with the right to familial association.” Keates, 883 F.3d

at 1236.

11

On appeal, Preslie characterizes her familial association claim as

a violation of her Fourteenth Amendment rights. In her complaint,

however, she alleged violations of both the Fourth and Fourteenth

HARDWICK V. COUNTY OF ORANGE 15

She contends that “familial association rights are reciprocal,

and that a violation to the parent’s constitutional rights

necessarily violates the constitutional rights of the child.”

We agree that a parent’s right to associate with her child

can overlap with the child’s right to associate with her

parent. Companionship rights, for example, are overlapping.

See City of Fontana, 818 F.2d at 1419 (“[W]hen a child

claims constitutional protection for her relationship with a

parent, there is no custodial interest implicated, but only a

companionship interest.”). Thus, in some instances, the

violation of a parent’s constitutional right to associate with

her child necessarily violates the child’s constitutional right

to associate with her parent.

Hardwick’s state case, however, concerned more than

just her right to companionship with Preslie. In Hardwick’s

state case, the court instructed the jury that to establish her

claim, Hardwick had to prove that Vreeken violated her

“right of familial association including her right to the care

and custody of her two minor children . . . or violated her

right of privacy.” The jury verdict forms in the state case

asked jurors whether Vreeken or Dwojak “intentionally

violate[d] the plaintiff’s right to familial association or right

to privacy.” In contrast, in Preslie’s federal case, the district

court instructed the jury that Preslie had to prove that—but

for Vreeken’s dishonesty—“there would not have been the

juvenile court order removing the plaintiff from her mother’s

custody.”

Amendments. Regardless, as discussed above, the same legal standard

applies when evaluating familial association claims under the Fourth or

Fourteenth Amendments. See Keates, 883 F.3d at 1235.

16 HARDWICK V. COUNTY OF ORANGE

Given that Hardwick’s state jury returned special

verdicts finding that Vreeken and Dwojak violated her right

to familial association or her right to privacy, we cannot

conclude that the jury actually decided that Hardwick’s right

to familial association was violated. Therefore, the district

court did not err in concluding that the issues litigated in

Hardwick’s state case and Preslie’s federal case were not

identical. Without identical issues, Preslie could not invoke

issue preclusion to bar relitigation. See Shopoff & Cavallo

LLP v. Hyon, 85 Cal. Rptr. 3d 268, 294 (Ct. App. 2008) (“If

anything is left to conjecture as to what was necessarily

involved and decided there can be no collateral estoppel . . . .

[I]t must appear . . . that the precise question was raised and

determined in the former suit.”) (internal quotation marks

and citations omitted). We affirm the district court’s

summary adjudication order holding that Vreeken and

Dwojak were not precluded from litigating their liability on

Preslie’s familial association claim.

C. Orange County

Counties “can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where . . . the

action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that

[county’s] officers.” Monell, 436 U.S. at 690. Preslie argues

that Orange County is precluded from relitigating its liability

on her claim that the county’s policies and customs were the

moving force behind the violation of her right to familial

association. She argues that the jury’s findings in

Hardwick’s state case are binding in her federal case.

We disagree. The jury concluded that Orange County’s

failure to train and/or supervise adequately its employees

was the cause of the deprivation of Hardwick’s right to

HARDWICK V. COUNTY OF ORANGE 17

familial association and was a substantial factor in causing

harm to Hardwick. Yet, as discussed above, Hardwick’s

constitutional rights, as litigated in her state case, were not

identical to Preslie’s right to familial association as litigated

in her federal case. 12 Thus, we agree with the district court

that “the ‘precise question’ presented [] against the County

was not ‘raised and determined in the former suit.’” (quoting

Shopoff, 85 Cal. Rptr. 3d at 294). We therefore affirm the

district court’s ruling that Preslie could not rely on issue

preclusion to bar Orange County from relitigating its liability

under Monell. 13

IV. CONCLUSION

We have long held that children have a constitutional

interest in familial companionship. City of Fontana,

818 F.2d at 1418. As our case law recognizes, the

companionship rights between a parent and a child are

identical such that a plaintiff could invoke issue preclusion

to bar litigation in the appropriate case. Nonetheless, we

agree with the district court that Preslie cannot do so here

12

As we stated with respect to individual defendants Vreeken and

Dwojak in Part III.B, above, “Hardwick’s state case, however, concerned

more than just her right to companionship with Preslie. In Hardwick’s

state case, the court instructed the jury that to establish her claim,

Hardwick had to prove that Vreeken violated her ‘right of familial

association including her right to the care and custody of her two minor

children . . . or violated her right of privacy.’”

13

Preslie concedes that her municipal liability argument turns on

whether the district court erred when it determined that issue preclusion

did not bar Orange County from litigating Preslie’s Monell claim. She

does not argue that even if the district court did not err in denying her

summary adjudication motion, it erred when it granted the County’s

summary judgment motion on Preslie’s Monell claim. Thus, we do not

address the underlying merits of Preslie’s Monell claim.

18 HARDWICK V. COUNTY OF ORANGE

because she failed to establish that the issues litigated in the

prior state proceeding were identical to the issues raised in

her federal case.

AFFIRMED.

TASHIMA, Circuit Judge, concurring in part and concurring

in the judgment:

I concur in the majority’s affirmance of the district

court’s order declining to apply issue preclusion in Plaintiff

Preslie Hardwick’s favor on the ground that the state

superior court’s jury instruction contained the seed of

ambiguity when the earlier state-court jury was instructed

“that Hardwick had to prove ‘[t]hat defendant’s conduct

violated [Hardwick’s] right of familial association including

her right to the care and custody of her two minor children

. . . or violated her right to privacy.’” Maj. Op. at 8

(emphasis added). The majority rightly concludes that

because the “state jury returned special verdicts finding that

[defendants] violated her right to familial association or her

right to privacy, we cannot conclude that the jury actually

decided that Hardwick’s right to familial association was

violated.” Id. at 16. Thus, because the issues in the state and

federal cases were not identical, issue preclusion to bar

relitigation does not apply. “If anything is left to conjecture

as to what was necessarily involved and decided” in the

earlier case, issue preclusion does not apply.” Shopoff &

Cavallo LLP v, Hyon, 85 Cal. Rptr 3d 268, 294 (Ct. App.

2008).

The above brief discussion of the consequences of an

ambiguous jury instruction/special verdict largely tracks the

majority’s own reasoning. Because plaintiff failed to meet

HARDWICK V. COUNTY OF ORANGE 19

the “identical issue” test, issue preclusion does not apply,

and that should end the majority’s analysis.

The majority opinion, however, contains an extended

and unnecessary discussion of the contours of the familial

association right, see Maj. Op. at 13–16, which includes an

unfortunate snippet from Smith v. City of Fontana, 818 F.2d

1411, 1419 (9th Cir. 1987), that “when a child claims

constitutional protection for her relationship with a parent,

there is no custodial interest implicated, but only a

companionship interest.” Maj. Op. at 15. But this snippet is

no more than a throw-away line, made without any analysis

and, as important, without the citation of any state 1 or federal

case in support of the proposition. It does not deserve

deference as binding precedent. See, e.g., Barapind v.

Enomoto, 400 F.3d 744, 750–51 (9th Cir. 2005) (en banc).

In fact, California case law clearly demonstrates that a

child has a separate, correlative interest in her own custody.

For example, in Kern Cty. Dep’t of Hum. Servs. v. Debbie H.

(In re Marilyn H.), 851 P2d 826 (Cal. 1993), the California

Supreme Court stated:

The federal and state Constitutions guarantee

that no state shall deprive any person of life,

liberty or property without due process of

law. A parent’s interest in the

companionship, care, custody and

1

It is, of course, state law that creates and gives rise to liberty and

property interests protected by the Constitution. “Like property rights,

liberty interests can be defined by state law. ‘States may under certain

circumstances create liberty interests which are protected by the Due

Process Clause.’” Marsh v. County of San Diego, 680 F.3d 1148, 1155

(9th Cir. 2012) (quoting Sandin v. Conner, 515 U.S. 472, 483–84

(1995)).

20 HARDWICK V. COUNTY OF ORANGE

management of his children is a compelling

one, ranked among the most basic of civil

rights. Likewise, natural children have a

fundamental independent interest in

belonging to a family unit, and they have

compelling rights to be protected from abuse

and neglect and to have a placement that is

stable, permanent, and that which allows the

caretaker to make a full emotional

commitment to the child. The interests of the

parent and child, therefore, must be balanced.

Id. at 833 (emphasis added).

In San Diego Cty. Dep’t of Soc. Servs. v. Gavin O. (In re

Jasmon O.), 878 P.2d 1297 (Cal. 1994), the California

Supreme Court similarly stated that the parent’s

“fundamental right to maintain the parent-child bond and to

the care, custody and companionship of his or her child” is

“not absolute and may be abridged when necessary to do so

to protect the welfare of the child.” Id. at 1307. “Children

are not simply chattels belonging to the parent, but have

fundamental interests of their own that may diverge from the

interests of the parent.” Id. (emphasis added). The

overarching purpose of California’s child custody law is “the

best interest of the child.” See Montenegro v. Diaz, 27 P.3d

289, 293 (Cal. 2001) (“Under California’s statutory scheme

governing child custody and visitation determinations, the

overarching concern is the best interest of the child.”); see

also Cal. Fam. Code § 3041(a) (“Before making an order

granting custody to a person other than a parent, over the

objection of a parent, the court shall make a finding that

granting custody to a parent would be detrimental to the

child and that granting custody to the nonparent is required

to serve the best interest of the child.”). Embedded in that

HARDWICK V. COUNTY OF ORANGE 21

purpose is the notion that a child’s custody interest is

separate from her parents’ right and may even override the

latters’ right.

In light of the clarity and consistency of California case

law, it is likely that Smith’s drive-by dictum wrongly

construed California law. But we need not reach the issue in

this case because plaintiff’s failure to meet the “identical

issue” requirement precludes the application of issue

preclusion. Thus, any discussion of what separate right or

interest a child has to her own custody is purely obiter

dictum and we should not unquestioningly follow Smith.

Thus, while I concur in the judgment on the ground that

plaintiff has failed to establish the application of issue

preclusion because of the special verdict’s ambiguity, I

dissociate myself from the majority’s assertion that a child’s

correlative right of familial association includes no custody

component. I would leave that decision for another day.

With this qualification, I concur in the judgment.