AE Ex Rel. Hernandez v. County of Tulare

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AE, a minor, by and through his 

Guardian ad Litem, Maribel

Hernandez,

Plaintiff-Appellant,

v.

COUNTY OF TULARE,

Defendant-Appellee,

CELESTE ABARCA,

Defendant-Appellee,

PATRICIA NEGRETTE, 

Defendant-Appellee,

PRUDENCE MORRIS,

Defendant-Appellee,

SOTO, Doctor; MARIE FOCHA;

MIRIAM SALLAM,

Defendants-Appellees,

and

TIFFANY BREEN,

Defendant,



781

782 AE v. COUNTY OF TULARE



FAMILY BUILDERS FOSTER CARE,

INC.; CWA FELIX; ADRIAN

MARQUEZ,

Defendants,

YADIRA PORTILLO, No. 10-16116

Defendant,

D.C. No.

LETICIA QUEZADA; HELEN RUE,  1:09-cv-02204-LJO-

Defendants, DLB

TULARE COUNTY CHILD WELFARE OPINION

SERVICES; TULARE COUNTY

HEALTH AND HUMAN SERVICES

AGENCY; TULARE YOUTH SERVICE

BUREAU, INC.; COURTNEY WAMPLER;

HEIDI WLLLIAMS,

Defendants.



Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

April 13, 2011—San Francisco, California

Filed January 27, 2012

Before: Sidney R. Thomas and Johnnie B. Rawlinson,

Circuit Judges, and Cormac J. Carney, District Judge.*

Opinion by Judge Rawlinson

*The Honorable Cormac J. Carney, District Judge for the U.S. District

Court for Central California, Santa Ana, sitting by designation.

AE v. COUNTY OF TULARE 785

COUNSEL

Charles R. Chapman, Esq., Rodriguez & Associates, Bakers-

field, California, for the plaintiff-appellant.

Kathleen Bales-Lange, County Counsel, and Judy Chapman,

Deputy County Counsel (argued), Visalia, California, for the

defendants-appellees.

OPINION

RAWLINSON, Circuit Judge:

Plaintiff-Appellant AE, a minor, was sexually assaulted by

his seventeen-year-old foster brother (Foster Brother) while

786 AE v. COUNTY OF TULARE

living in a foster family home in Tulare County, California.

AE contends that the County of Tulare (County) and its

employee social workers (collectively, Defendants), failed to

intervene prior to his sexual assault, despite their knowledge

of the escalating threats and violence against him. AE brought

a federal civil rights claim pursuant to 42 U.S.C. § 1983 and

state negligence claims against Defendants. AE appeals the

district court’s dismissal with prejudice of all claims against

the County. We conclude that the district court abused its dis-

cretion in dismissing AE’s § 1983 and derivative liability

claims without leave to amend. Accordingly, we reverse the

district court’s decision and vacate the judgment.

I. BACKGROUND

A. Factual Allegations of the First Amended Complaint

The First Amended Complaint tells a tragic story of

escalating threats and violence against AE, a nine-year-old

boy, at the hands of his Foster Brother. In September, 2008,

AE was removed from his mother’s custody,1 transferred to a

foster family agency, and ultimately placed with foster care

parents. According to the First Amended Complaint, Defen-

dants knew or should have known that the Foster Brother,

who was on probation, a dependent of the court, and on the

caseload of a County social worker,2 “was dangerous and

posed a threat to [AE] and/or minors such as [AE].”

On November 5, 2008, a “reporting party” informed Yadira

Portillo (Portillo) and Courtney Wampler (Wampler), both

County social workers, that the Foster Brother hit AE in the

chest and left “a 3½ by 5 inch bruise on his left shoulder.”

That same date, AE informed “CWA Felix” (Felix), also a

1

AE’s mother, Maribel Hernandez, was appointed as his Guardian ad

Litem for this case.

2

This social worker, Heidi Williams, was named as a defendant, but ser-

vice subsequently was found to be defective.

AE v. COUNTY OF TULARE 787

County social worker, that two weeks earlier his Foster

Brother had “socked him in the face and threatened him” after

AE had witnessed the Foster Brother stealing money from

their foster parent. Portillo and Wampler photographed AE’s

bruise. Around the same time, a foster parent informed Por-

tillo and Wampler that the Foster Brother was on probation

and was a dependent of the court. Further, the foster parent

reported that on November 4, 2008, the Foster Brother had

cursed at her for wiggling the bathroom door knob because he

believed she was AE.

On November 20, 2008, AE’s mother expressed concerns

to Felix regarding AE’s foster home placement. AE’s mother

requested that Felix have AE moved to a different foster

home.

On November 25, 2008, Dr. Soto called Prudence Morris,

the “Team Leader” for AE’s foster care, to report that AE had

told him during a recent evaluation that the Foster Brother

regularly entered the bathroom while AE was showering,

using the toilet, or brushing his teeth, to tell AE to “hurry up,

and curse [him].” AE also informed Portillo and Wampler

directly that his Foster Brother “would unlock the bathroom

door using his nail and threaten[ ] to ‘kick [AE’s] ass.” AE

told Portillo and Wampler that his foster parent knew of the

Foster Brother’s behavior, but had responded only by order-

ing AE to use the downstairs bathroom.

On November 26, 2008, Portillo spoke with AE’s therapist,

Adrian Marquez, regarding what she had learned of AE’s

placement. Marquez responded that “there was a need to place

more responsibility on the foster mother in supervising the

actions of the children in the home . . . [and] that he did not

believe [AE] had been making allegations to seek attention,

but was instead minimizing the behavior of [his Foster Broth-

er].”

On December 10, 2008, AE’s foster parents reported to

Portillo that AE had told them, approximately five days ear-

788 AE v. COUNTY OF TULARE

lier, on December 5 or 6, that the Foster Brother “went into

[AE’s] bedroom and attempted to get into his bed and pull his

pants down.”

On December 12, 2008, Portillo received two telephone

calls regarding AE. A man describing himself as AE’s uncle

called to ask “what the agency was doing with his nephew.”

A County deputy sheriff also called to report that a man pur-

porting to be AE’s uncle had informed the police that “the

agency was covering up an incident that occurred with his

nephew and he wanted the Sheriff to pick up [AE] from foster

care.”

That same day, Portillo contacted AE’s mother, who told

Portillo that she had requested that Felix remove AE from his

current placement. Subsequently, Portillo and another social

worker, joined by a County police officer, interviewed AE.

AE told the police officer “that he had been sodomized and

forced to do oral copulation by [his Foster Brother].”

“On or about December 12 and/or 15, 2008,” Portillo

informed AE’s mother that AE “had been assaulted, battered,

sexually abused, sodomized and orally copulated by another

dependent at the foster home . . .”

On approximately December 15, 2008, Portillo, a deputy

district attorney, a County police detective, and a forensic

interview specialist interviewed AE. AE described the sexual

assault in detail. Following this interview, Portillo met imme-

diately with her supervisor to reassess AE’s foster placement,

and AE was moved to a different foster home.

AE alleged that at all relevant times, Portillo, Wampler, and

Felix were County employees acting within the course and

scope of their employment. AE further alleged that all Defen-

dants performed their acts and omissions “under the ordi-

nances, regulations, customs, and practices of Defendant

COUNTY OF TULARE . . .”

AE v. COUNTY OF TULARE 789

B. Procedural Background

The First Amended Complaint alleged two causes of action

relevant to this appeal, a claim under 42 U.S.C. § 1983 for

deliberate indifference, and claims for negligence pursuant to

California statutes.3

Defendants moved to dismiss pursuant to FRCP 12(b)(6).

The district court granted AE leave to amend the claims

against Portillo, Wampler, and Felix. The district court dis-

missed with prejudice all claims against the County and

entered judgment in its favor pursuant to FRCP 54(b). AE

filed a timely appeal.

II. STANDARD OF REVIEW

We review de novo the district court’s dismissal of a com-

plaint for failure to state a claim. See Telesaurus VPC, LLC

v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). In conducting

this review, we accept the factual allegations of the complaint

as true and construe them in the light most favorable to the

plaintiff. See New Mexico State Invest. Council v. Ernst &

Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011).

We review for abuse of discretion the district court’s denial

of leave to amend. See Telesaurus, 623 F.3d at 1003. A dis-

trict court abuses its discretion by denying leave to amend

unless amendment would be futile or the plaintiff has failed

to cure the complaint’s deficiencies despite repeated opportu-

nities. See id. A district court also abuses its discretion when

it commits an error of law. See Metrophones Telecomms., Inc.

v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1063

(9th Cir. 2005) (“An error of law is one form of an abuse of

discretion.”) (citation omitted).

3

The First Amended Complaint also named Family Builders Foster

Care, Inc., and the Tulare Youth Service Bureau, Incorporated, as defen-

dants. Those entities were dismissed by the district court and are not

before us on appeal.

790 AE v. COUNTY OF TULARE

III. DISCUSSION

A. Section 1983 Claim

[1] AE alleged claims against the County and individual

County officials pursuant to 42 U.S.C. § 1983 for violations

of the Due Process Clause of the Fourteenth Amendment,

which “protects a foster child’s liberty interest in social

worker supervision and protection from harm inflicted by a

foster parent.” Tamas v. Dep’t of Soc. & Health Servs., 630

F.3d 833, 842 (9th Cir. 2010) (citations omitted).4 AE argues

that the district court erred in dismissing his § 1983 claim

against the County. We agree with the district court that the

First Amended Complaint failed to state a § 1983 claim

against the County, but hold that the district court abused its

discretion when it denied leave to amend.

[2] Section 1983 suits against local governments alleging

constitutional rights violations by government officials cannot

rely solely on respondeat superior liability. See Whitaker v.

Garcetti, 486 F.3d 572, 581 (9th Cir. 2007); see also Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead,

plaintiffs must establish that “the local government had a

deliberate policy, custom, or practice that was the moving

force behind the constitutional violation [they] suffered.”

Whitaker, 486 F.3d at 581 (citation and internal quotation

marks omitted).

[3] In the past, our cases have not required parties to pro-

vide much detail at the pleading stage regarding such a policy

or custom. “In this circuit, a claim of municipal liability under

§ 1983 is sufficient to withstand a motion to dismiss even if

the claim is based on nothing more than a bare allegation that

the individual officers’ conduct conformed to official policy,

4

No principled basis exists to distinguish harm inflicted by a foster sib-

ling in a foster parent’s home.

AE v. COUNTY OF TULARE 791

custom, or practice.” Id. (citation, alteration, and internal quo-

tation marks omitted).

AE contends that the First Amended Complaint met this

minimalist standard, as it alleged that all Defendants per-

formed all acts and omissions regarding AE’s foster care

placement and supervision “under the ordinances, regulations,

customs, and practices of Defendant COUNTY OF TULARE

. . .”

Citing Monell and City of Canton v. Harris, 489 U.S. 378

(1989), the First Amended Complaint also alleged that Defen-

dants “maintained or permitted an official policy, custom or

practice of knowingly permitting the occurrence of the type of

wrongs” that it elsewhere alleged. The First Amended Com-

plaint did not put forth additional facts regarding the specific

nature of this alleged “policy, custom or practice,” other than

to state that it related to “the custody, care and protection of

dependent minors. . . .”5

Our circuit precedent, articulated first in Shah v. County of

Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986), and most

recently in Whitaker, 486 F.3d at 581, requires plaintiffs in

civil rights actions against local governments to set forth no

more than a bare allegation that government officials’ conduct

conformed to some unidentified government policy or cus-

tom. The County argues that our precedent has been implicitly

overruled by the reasoning of intervening Supreme Court

decisions, including Ashcroft v. Iqbal, ___ U.S. ___, 129 S.

Ct. 1937 (2009).

5

Indeed, at several points the First Amended Complaint incorrectly

refers to AE as the “Decedent” and alleges “policies, customs, and prac-

tices regarding the custody, care and protection of dependent minors . . .

so inadequate that the failure to correct them would result in . . . the death

of[ ] dependent minors, such as Plaintiff.” These naked assertions make no

sense in the context of this case.

792 AE v. COUNTY OF TULARE

[4] Yet briefing on this appeal was completed before our

decision in Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011).

There, we identified and addressed conflicts in the Supreme

Court’s recent jurisprudence on the pleading requirements

applicable to civil actions. See id. at 1211-16 (addressing

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Dura

Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005); Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Erickson v.

Pardus, 551 U.S. 89 (2007) (per curiam); and Iqbal. We held

that:

whatever the difference between [Swierkiewicz,

Dura Pharmaceuticals, Twombly, Erickson, and

Iqbal], we can at least state the following two princi-

ples common to all of them. First, to be entitled to

the presumption of truth, allegations in a complaint

or counterclaim may not simply recite the elements

of a cause of action, but must contain sufficient alle-

gations of underlying facts to give fair notice and to

enable the opposing party to defend itself effectively.

Second, the factual allegations that are taken as true

must plausibly suggest an entitlement to relief, such

that it is not unfair to require the opposing party to

be subjected to the expense of discovery and contin-

ued litigation.

Starr, 652 F.3d at 1216. This standard applies to Monell

claims and should govern future pleadings in this case.

[5] The district court abused its discretion when it denied

AE the opportunity to allege additional facts supporting the

claim that Portillo’s, Wampler’s, and Felix’s alleged constitu-

tional violations were carried out pursuant to County policy

or custom. AE’s allegation of plausible facts supporting such

a policy or custom could have cured the deficiency in the

Monell claim. See Telesaurus, 623 F.3d at 1003 (explaining

that a court abuses its discretion when leave to amend is

denied and amendment would not be futile); see also Moss v.

AE v. COUNTY OF TULARE 793

U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 2009)

(“[R]equests for leave [to amend] should be granted with

extreme liberality.”) (citation and internal quotation marks omit-

ted).6

B. State Law Claims

We address AE’s statutory negligence claims by “as-

certain[ing] and apply[ing] the existing California law.” Mun-

son v. Del Taco, Inc., 522 F.3d 997, 1002 (9th Cir. 2008)

(citation omitted).

California public entities are not subject to common law

tort liability; all liability must be pursuant to statute. See Cal.

Gov’t Code § 815; see also Guzman v. Cnty. of Monterey, 46

Cal. 4th 887, 897 (2009). AE asserted two bases for the Coun-

ty’s liability: (1) direct liability for breach of a mandatory

duty, pursuant to California Government Code § 815.6; and

(2) derivative liability for the negligent acts or omissions of

County employees, pursuant to California Government Code

§ 815.2.

The district court dismissed both the direct and derivative

liability claims against the County with prejudice and without

leave to amend. AE waived any challenge to the dismissal of

his direct liability claim by failing to “specifically and dis-

tinctly” argue the issue in his opening brief. United States v.

Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (citation omitted).7

The district court erred, however, when it conflated AE’s

6

The district court’s error is made even more apparent by the fact that,

at the time it denied AE leave to amend, our precedent required no more

than the allegation that the government officials acted pursuant to an

established policy or custom. See, e.g., Whitaker, 486 F.3d at 581.

7

It does not suffice that AE, in the “Statement of the Case” and “State-

ment of Facts” sections of his opening brief, recited—almost verbatim—

the bare allegations contained in his First Amended Complaint.

794 AE v. COUNTY OF TULARE

direct and derivative liability claims and dismissed the latter

with prejudice. The court’s legal error constitutes an abuse of

discretion. See Metrophones, 423 F.3d at 1063.

[6] California public entities, including local governments,

are derivatively liable for the negligent acts or omissions of

public employees within the scope of their employment. See

Cal. Gov’t Code § 815.2(a). But if the employee successfully

asserts immunity, the public entity is shielded from derivative

liability. See id. § 815.2(b); see also Johnson v. State, 69 Cal.

2d 782, 787 (1968).

[7] Here, the district court granted AE leave to amend his

negligence claims against Portillo, Wampler, and Felix.

Because these County social workers remain as defendants in

the case, the court erred when it dismissed all claims against

the County with prejudice and certified judgment in the Coun-

ty’s favor. As long as AE is permitted to allege that County

employees were negligent, he must also be permitted to allege

that the County is derivatively liable pursuant to California

Government Code § 815.2(a).

On appeal, the County argues that the dismissal was proper

because AE’s pleadings make an affirmative showing that

Portillo, Wampler, and Felix are entitled to the “discretionary

act immunity” set forth in California Government Code

§ 820.2. Caldwell v. Montoya, 10 Cal. 4th 976 (1995) (in

bank) (internal quotation marks omitted). We disagree.

California Government Code § 820.2 provides that “a pub-

lic employee is not liable for an injury resulting from his act

or omission where the act or omission was the result of the

exercise of the discretion vested in him, whether or not such

discretion be abused.”

Two principles California courts consider to determine

whether discretionary act immunity applies are particularly

relevant here. See Barner v. Leeds, 24 Cal. 4th 676, 684-85

AE v. COUNTY OF TULARE 795

(2000). First, “not all acts requiring a public employee to

choose among alternatives entail the use of ‘discretion’ within

the meaning of section 820.2.” Id. (citation omitted). In other

words, the California legislature did not intend to define dis-

cretion colloquially. See id. Instead, courts must distinguish

between public employees’ policy decisions and their opera-

tional, or ministerial, decisions. See id. at 685. Quasi-

legislative policy decisions are protected from judicial scru-

tiny pursuant to a separation of powers rationale. See id. “On

the other hand, there is no basis for immunizing lower level

decisions that merely implement a basic policy already formu-

lated.” Id. (citation omitted).

Second, government defendants have the burden of estab-

lishing that they are entitled to immunity for an actual policy

decision made by an employee who “consciously balanc[ed]

risks and advantages . . .” Johnson, 69 Cal. 2d at 795 n.8.

“The fact that an employee normally engages in ‘discretionary

activity’ is irrelevant if, in a given case, the employee did not

render a considered decision.” Id. (citation omitted).

The County relies on several California Court of Appeal

decisions involving foster care. See, e.g., Cnty. of Los Angeles

v. Superior Court, 102 Cal. App. 4th 627, 643-46 (2002) (Ter-

rell R.) (holding that county social workers are entitled to dis-

cretionary act immunity for all negligent foster care

placement decisions and negligent supervision of the child in

that placement “unless the social worker fails to provide spe-

cific services mandated by statute or regulation”) (citation

omitted). However, these decisions are not controlling

because they conflict with the principles consistently followed

in California Supreme Court decisions since Johnson and

most recently reaffirmed in Barner. See Carvalho v. Equifax

Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir. 2010), as

amended (“We are bound by pronouncements of the Califor-

nia Supreme Court on applicable state law . . .”) (citation

omitted).); see also Austen L. Parrish, Avoiding the Mistakes

of Terrell R.: The Undoing of the California Tort Claims Act

796 AE v. COUNTY OF TULARE

and the Move to Absolute Governmental Immunity in Foster

Care Placement and Supervision, 15 Stan. L. & Pol’y Rev.

267, 321 (2004) (proposing that the Terrell R. court erred by

conflating direct and derivative liability claims and ignoring

three decades of uniform Supreme Court precedent and the

clear intent of the California legislature regarding discretion-

ary act immunity).

The Terrell R. court’s analysis sharply departed from the

principles outlined in California Supreme Court precedent.

The holding that social workers are immune from liability for

all nonmandatory acts erroneously conflated direct and deriv-

ative liability by interpreting “discretionary” literally rather

than legally. This interpretation is inconsistent with the Cali-

fornia Supreme Court’s instruction to construe the scope of

the discretionary act immunity as narrowly as possible to pre-

serve the separation of powers, and its instruction to deter-

mine whether an act is discretionary by distinguishing

between the employee’s operational and policy decisions. See

Barner, 24 Cal. 4th at 685. The Terrell R. court also strayed

by concluding that county social workers are entitled to dis-

cretionary act immunity for their allegedly negligent place-

ment and supervision of foster children solely because, in the

abstract, their job duties involve “complex task[s] requiring

the consideration and balancing of many factors to achieve

statutory objectives . . . [and] seem[ ] . . . to be . . . activit[ies]

loaded with subjective determinations and fraught with major

possibilities of . . . erroneous decision[s].” Id. at 644 (citation

and internal quotation marks omitted). This conclusion con-

flicts with the California Supreme Court’s admonishment that

an employee’s normal job duties are not determinative; the

burden rests with government defendants to demonstrate that

they are entitled to § 820.2 immunity for a specific policy

decision made by an employee who consciously balanced the

decision’s risks and benefits. See Johnson, 69 Cal. 2d at 795

n.8.

AE v. COUNTY OF TULARE 797

[8] Applying the holdings of the California Supreme

Court, and taking the allegations in the Complaint as true, we

conclude that the County was not entitled to a dismissal of

AE’s derivative liability claims on the basis of discretionary

act immunity for the allegedly negligent placement and super-

vision of AE by Portillo, Wampler, and Felix. See Elton v.

Cnty. of Orange, 3 Cal. App. 3d 1053, 1058 (1970) (explain-

ing that the required showing of “balancing the risks and

advantages” was not and could not have been made by the

county at the demurrer stage).8 It would be odd indeed if a

plaintiff included in a Complaint allegations that would estab-

lish a basis for finding discretionary act immunity on the part

of government defendants.

[9] The district court abused its discretion by dismissing

the derivative liability claims against the County with preju-

dice and without leave to amend when it granted leave to

amend as to the allegations regarding Portillo, Wampler, and

Felix. The County’s derivative liability is tied directly to the

negligence of, or successful assertion of immunity by, its

employees. See Cal. Gov’t Code § 815.2. Nevertheless, the

district court concluded that the County’s “alleged liability

[was] clear and distinct from claims against and liability of

other defendants.” This holding was contrary to California

law.

In sum, AE may have viable claims against the County

under state law and under federal law. We express no view as

to the ultimate disposition of those claims. The success of the

state law claim hinges on the liability of the social workers

8

We note that neither Terrell R. nor Becerra v. County of Santa Cruz,

68 Cal. App. 4th 1450 (1998), on which the County also relies, found

immunity at the pleadings stage. Rather, both cases addressed appeals of

orders resolving motions for summary judgment. See Terrell R., 102 Cal.

App. 4th at 633; Becerra, 68 Cal. App. 4th at 1454. Indeed, the Terrell R.

court distinguished Elton on the basis that “appeal . . . followed a demur-

rer, not a summary judgment. . . .” Terrell R., 102 Cal. App. 4th at 645

n.5.

798 AE v. COUNTY OF TULARE

who remain as defendants. And it remains to be seen whether

AE can meet the pleading requirements set forth in Iqbal for

his § 1983 claim. However, he must be given the opportunity

to try to meet those requirements.

CONCLUSION

[10] The district court’s order dismissing the claims

against the County without leave to amend is REVERSED

and the entry of judgment in favor of the County is

VACATED. The case is REMANDED for further proceed-

ings consistent with this opinion.