A.C. v. Erica Cortez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A.C., a minor; A.E.1, a minor; No. 19-55895

A.E.2, a minor, by and through

Samuel H. Park, their Guardian ad D.C. No.

litem, 3:18-cv-02227-

Plaintiffs-Appellants, AJB-AGS

v.

OPINION

ERICA R. CORTEZ, an individual;

KATE DWYRE JONES, an individual;

COUNTY OF SAN DIEGO, a public

entity; DOES, 1 through 30 inclusive,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of California

Anthony K. Battaglia, District Judge, Presiding

Submitted October 5, 2021 *

Pasadena, California

Filed May 13, 2022

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 A.C. V. CORTEZ

Before: Susan P. Graber and Morgan Christen, Circuit

Judges, and Richard Seeborg, ** District Judge.

Opinion by Judge Seeborg

SUMMARY ***

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought pursuant to 42 U.S.C. § 1983 alleging that

attorneys for the County of San Diego, in defending the

County against plaintiffs’ earlier lawsuit, reviewed

plaintiffs’ juvenile case files without first obtaining a court

order, in violation of plaintiffs’ privacy rights.

In a previously issued memorandum disposition, the

panel held that the individual defendants were entitled to

qualified immunity for the reasons stated in Nunes v. Arata,

Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108,

1113–14 (9th Cir. 2020) (per curiam). The panel’s previous

disposition did not address plaintiffs’ claim brought pursuant

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

after plaintiffs moved for reconsideration, rehearing, and

rehearing en banc, the panel invited supplemental briefing

on the Monell claim.

**

The Honorable Richard Seeborg, Chief United States District

Judge for the Northern District of California, sitting by designation.

***

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

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

A.C. V. CORTEZ 3

The panel held that, contrary to plaintiffs’ argument,

Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003) (per

curiam), abrogated on other grounds by Filarsky v. Delia,

566 U.S. 377 (2012) does not stand for the proposition that

a right to privacy necessarily attaches to the type of records

at issue here. Thus, Gonzalez did not recognize a per se

constitutional right in juvenile records that is always violated

by third-party access. Further, even if plaintiffs were

entitled to informational privacy, the balancing test

recognized in Seaton v. Mayberg, 610 F.3d 530, 539 (9th

Cir. 2010), showed the County’s interest in defending this

litigation outweighed plaintiffs’ asserted privacy interest.

Even assuming that the social workers’ records comprised

sensitive medical and psychological records, there was no

constitutional violation because the County’s need to access

the records was high. Plaintiffs initiated that need, and the

professional obligations that lawyers owe their clients

minimized the risk of misuse, harassment, or

embarrassment. Thus, the district court properly dismissed

plaintiffs’ Monell claim.

COUNSEL

Shawn A. McMillan, Stephen D. Daner, and Adrian M.

Paris, Law Offices of Shawn A. McMillan A.P.C., San

Diego, California, for Plaintiffs-Appellants.

Thomas E. Montgomery, County Counsel; Jeffrey

Michalowski and John P. Cooley, Senior Deputies; Office of

County Counsel, San Diego, California; for Defendants-

Appellees.

4 A.C. V. CORTEZ

OPINION

SEEBORG, District Judge:

Plaintiffs in this action are minors who resided in San

Diego County. In 2017, Plaintiffs sued the County and

County social workers for allegedly violating their Fourth

Amendment rights by interviewing them without a court

order or parental consent during the course of a child-abuse

investigation. During that investigation, the County created

and maintained files related to the alleged child abuse.

Attorneys defending the County reviewed the child-abuse

investigation file without first obtaining a court order.

Plaintiffs then brought this action, alleging that the attorneys

who accessed the file violated their right to privacy.

Plaintiffs’ claim relies heavily on Gonzalez v. Spencer,

336 F.3d 832 (9th Cir. 2003) (per curiam), abrogated on

other grounds by Filarsky v. Delia, 566 U.S. 377 (2012). We

conclude that Gonzalez does not stand for the proposition

that a right to privacy necessarily attaches to the type of

records at issue here. Further, even if we assume that

Plaintiffs were entitled to informational privacy, the

balancing test recognized in Seaton v. Mayberg, 610 F.3d

530, 539 (9th Cir. 2010), shows the County’s interest in

defending this litigation outweighed Plaintiffs’ asserted

privacy interest. Accordingly, we affirm. 1

I. BACKGROUND

Juvenile case files include “[d]ocuments relating to a

child concerning whom a petition has been filed in juvenile

1

This opinion supplements a memorandum disposition, A.C. v.

Cortez, No. 19-55895, 2021 WL 4705511 (9th Cir. Oct. 8, 2021)

(unpublished), in which we affirmed the dismissal of the claims against

the individual Defendants. All claims in this action are now decided.

A.C. V. CORTEZ 5

court that are maintained in the office files of probation

officers, social workers of child welfare services programs,

and CASA [Court Appointed Special Advocates]

volunteers.” Cal. R. Ct. 5.552(a)(4). The types of documents

in a case file generally contain “reports to the court by

probation officers, social workers . . . , and CASA

volunteers” and “[t]ranscripts, records, or reports relating to

matters prepared or released by the . . . child welfare services

program.” Id. 5.552(a)(3), (5). In California, a court order is

required to access juvenile case files, except for a list of

statutorily excepted categories of people, such as the subject

minor and attorneys litigating a juvenile or criminal

proceeding involving the minor. California Welfare &

Institutions Code § 827.

In 2017, Plaintiffs sued San Diego County, claiming that

County social workers violated their Fourth Amendment

rights by interviewing them without a court order or parental

consent. Williams v. County of San Diego, S.D. Cal. Case

No. 17-cv-0815 MMA-JLB. Attorneys for the Office of

County Counsel defended the lawsuit. As part of that

defense, Erica Cortez and Kate Jones accessed the County’s

juvenile case files concerning Plaintiffs.

Plaintiffs then brought this separate lawsuit in 2018,

arguing that the lawyers’ inspection of the juvenile case files

violated their privacy rights. They sued Cortez, Jones, and

the County itself. The Complaint contains two counts: a

42 U.S.C. § 1983 claim against the individual Defendants

and a Monell claim, premised on the allegations that the

County had a practice of allowing attorneys to access and

use juvenile files to defend against lawsuits. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658 (1978). Defendants moved to

dismiss the complaint under Federal Rule of Civil Procedure

12(b)(6). The district court granted the motion, despite

6 A.C. V. CORTEZ

finding that the County’s policy allowed its attorneys to

access juvenile case files without a court order, potentially

contrary to California law. A.C. v. Cortez et al., 398 F. Supp.

3d 748 (S.D. Cal. 2019).

The district court applied the balancing test articulated in

Seaton, 610 F.3d at 538 n.47, 539, which essentially weighs

the potential for harm to Plaintiffs’ privacy interest against

Defendants’ need for access. The court concluded that the

balancing test favored Defendants in light of the need to

access the files to defend the County in the 2017 litigation.

A.C., 398 F. Supp. 3d at 753. The district court also ruled

that the individual Defendants are entitled to qualified

immunity because Plaintiffs failed to show “that there was a

constitutional deprivation” and, even if there were, “it was

not clearly established at the time County Counsel accessed

the files that they were violating [Plaintiffs’] constitutional

rights.” Id. Plaintiffs timely appealed to us.

While this appeal was pending, another panel of this

court held that qualified immunity applied to an alleged

privacy violation against individual Defendants in a nearly

identical case, citing the trial court’s decision in this case.

Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC),

983 F.3d 1108, 1113–14 (9th Cir. 2020) (per curiam). We

then issued a memorandum disposition in this appeal,

holding that the individual Defendants sued here were

entitled to qualified immunity for the reasons stated in

Nunes. A.C., 2021 WL 4705511 at *1. Nunes, however, did

not address whether there exists a constitutional right in the

first instance; it decided only the issue of qualified

immunity, which cannot apply against the County.

Leatherman v. Tarrant Cnty. Narcotics Intel. &

Coordination Unit, 507 U.S. 163, 166–167 (1993).

A.C. V. CORTEZ 7

Our previous disposition did not address the Monell

claim. After Plaintiffs moved for reconsideration, rehearing,

and rehearing en banc, we invited supplemental briefing. We

have jurisdiction under 28 U.S.C. § 1291, and we now affirm

the district court’s order dismissing Plaintiff’s complaint.

II. STANDARD OF REVIEW

We review findings of fact for clear error and legal

conclusions de novo, except for the district court’s denial of

leave to amend, which we review for abuse of discretion.

Pannebecker v. Liberty Life Assurance Co., 542 F.3d 1213,

1217 (9th Cir. 2008); Gompper v. VISX, Inc., 298 F.3d 893,

898 (9th Cir. 2002).

III. DISCUSSION

A. The Question to be Decided

Defendants insist that we should not reach the

constitutional question presented in this case. Defendants

argue that Plaintiffs waived any informational privacy

claims by not pursuing the theory below and not raising it in

their opening brief. Yet, Defendants raised informational

privacy to the district court, the district court’s opinion

reached the issue, and the parties have squarely addressed

informational privacy on appeal. We therefore take the

opportunity to clarify the confusion caused by Gonzalez.

B. Gonzalez Did Not Identify a Constitutional Right

Gonzalez did not recognize a per se constitutional right

in juvenile records that is always violated by third-party

access. The decision contains a limited discussion of the

constitutional question:

8 A.C. V. CORTEZ

If Spencer violated Gonzalez’s constitutional

rights, he is entitled to at least nominal

damages, even if Spencer could have

obtained the documents lawfully.

Because Spencer improperly obtained

access to Gonzalez’s juvenile court file, we

need not reach the question whether

Spencer’s use of Gonzalez’s file in

depositions also violated his constitutional

rights.

. . . Spencer is not entitled to qualified

immunity.

336 F.3d at 835 (citation omitted). Gonzalez has been

characterized as “opaque.” Nunes, 983 F.3d at 1114. Most of

the district courts to consider the issue have concluded that

Gonzalez did not recognize a constitutional right to privacy

in juvenile records per se. E.g., Rigsby v. County of Los

Angeles, No. CV-11-02766, 2011 WL 13143544, at *3 (C.D.

Cal. Aug. 2, 2011), aff’d, 531 F. App’x 811 (9th Cir. 2013);

see also Nunes, 983 F.3d at 1113 (discussing cases).

Gonzalez mentioned neither the Constitution nor any

federal law in the relevant part of the opinion. As we noted

in Nunes, “[s]uch an opinion, which leaves fundamental

questions unanswered about the origin, nature, and scope of

the right at issue, cannot place the constitutional issue

‘beyond debate.’” 983 F.3d at 1114. We conclude that

Gonzalez cannot be viewed as identifying a constitutional

right for qualified immunity purposes or otherwise.

The quoted passage in Gonzalez at most assumed that

there was some existing constitutional right to privacy in

A.C. V. CORTEZ 9

juvenile records. See 336 F.3d at 839 (Fletcher, J.,

dissenting) (noting that the issue was only whether Gonzalez

had a “federal constitutional right of privacy based on a

settled expectation arising out of state law”). We need not

try to excavate further the intent behind the “opaque”

passage in Gonzalez. It is sufficient to resolve that Plaintiffs

cannot rely on Gonzalez for the existence of a per se

constitutional right. Because we hold that Gonzalez did not

identify a specific constitutional right in the first place, en

banc review is not necessary to ensure the uniformity of our

decisions, as Plaintiffs request. Fed. R. App. P. 35.

C. Applying Informational Privacy to Juvenile Records

“[F]ederal constitutional law recognizes a ‘right to

informational privacy’ stemming from ‘the individual

interest in avoiding disclosure of personal matters.’” Endy

v. County of Los Angeles, 975 F.3d 757, 768 (9th Cir. 2020)

(quoting In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999)).

That said, the right “is not absolute; rather, it is a conditional

right which may be infringed upon a showing of proper

governmental interest.” Id. (internal quotation marks

omitted). Our balancing test to determine whether the

government’s right to infringe outweighs the individual’s

privacy interest considers: “(1) the type of information

requested, (2) the potential for harm in any subsequent non-

consensual disclosure, (3) the adequacy of safeguards to

prevent unauthorized disclosure, (4) the degree of need for

access, and (5) whether there is an express statutory

mandate, articulated public policy, or other recognizable

public interest militating toward access.” Seaton, 610 F.3d

at 539 (quoting Tucson Woman’s Clinic v. Eden, 379 F.3d

531, 551 (9th Cir. 2004)) (internal quotation marks omitted).

California’s definition of juvenile records is broad,

including “records, or reports relating to” those prepared by

10 A.C. V. CORTEZ

child welfare workers, the contents of which vary

dramatically. Cal. R. Ct. 5.552(a). In its early stages, a social

worker’s child-abuse file might contain only relatively

innocuous biographical data and academic records.

Eventually, however, it would not be unusual for such a file

to contain intimate details that families would not share with

strangers, including medical diagnoses, reports of abuse,

substance-abuse treatment records, and the like. Thus,

although courts may assume that juvenile records contain

personal matters, an individualized determination will be

required at the threshold stage to determine whether a

particular file contains such information. We apply the

standard informational privacy balancing test to minors. See,

e.g., Planned Parenthood of S. Ariz. v. Lawall, 307 F.3d 783,

785, 789–90 (9th Cir. 2002).

D. No Informational Privacy Violation Here

The district court applied the five-factor balancing test

articulated in Seaton, 610 F.3d at 593, and found no violation

of Plaintiffs’ right to informational privacy. The court’s

conclusion is sound.

As to the first factor, the type of information requested,

Plaintiffs contend that the files contained their medical,

psychological, and psychiatric records, and we presume that

the files contain at least some highly sensitive information.

The second factor, the potential for harm, is unclear but

seems low, as it has been years since the information was

accessed, and it has not been used in the underlying lawsuit

(about social workers interviewing Plaintiffs without

consent) or in any other proceeding. The third factor,

safeguards against misuse, helps assuage any concerns about

harm because Plaintiffs allege only that the County’s

attorneys accessed the files. Attorneys have a duty to keep

their clients’ files confidential, and a “statutory or regulatory

A.C. V. CORTEZ 11

duty to avoid unwarranted disclosures generally allays

privacy concerns.” NASA v. Nelson, 562 U.S. 134, 155

(2011) (internal quotation marks omitted).

The next factor, the need for access, is the most crucial

in this case, because that need is high. The County’s

attorneys have a duty to represent their client, and they

concluded that adequate representation required their

reviewing the files. This situation is analogous to the concept

of litigation waiver in other areas of the law: where a

Plaintiff puts a particular subject at issue, such that lawyers

and courts will need to examine records to investigate the

claim, Plaintiffs’ privacy rights and expectations may be

diminished or extinguished. 2 See, e.g., Vinson v. Superior

Ct., 740 P.2d 404, 410–11 (Cal. 1987). We emphasize that

Plaintiffs’ 2017 suit pertained to how County employees

conducted themselves with respect to the juveniles, thus

giving rise to the attorneys’ need to access the juveniles’

files. Our decision should not be misunderstood as holding

that, whenever someone sues the County on any topic, its

attorneys necessarily may access the Plaintiff’s juvenile file.

The last factor, policies pertaining to access, is somewhat

unclear. Defendants argue that there is such a policy because

a state regulation provides that, when someone sues the

county, social services agencies shall give county attorneys

all files related to the Plaintiff. Cal. Dept. of Soc. Servs.

Manual of Policies & Procs. § 19-004.5. On the other hand,

California Welfare & Institutions Code § 827 requires a

court order to access juvenile files, and it seems that the

2

Indeed, this logic arguably could decide the case: Plaintiffs’ 2017

suit waived their privacy rights and expectations, at least with regard to

the lawyers for the entity that they sued.

12 A.C. V. CORTEZ

attorneys here do not fall under the “court personnel”

exception.

Ultimately, this state-law issue need not be decided

definitively because the need for access is sufficiently high

that it outweighs the lesser possibility of harm. Even

assuming that the social workers’ records comprised

sensitive medical and psychological records, there was no

constitutional violation because the County’s need to access

the records was high. Plaintiffs initiated that need, and the

professional obligations that lawyers owe their clients

minimize the risk of misuse, harassment, or embarrassment.

Thus, the district court properly dismissed Plaintiffs’ Monell

claim. Because no amendment could save the complaint, the

district court correctly denied leave to amend. Gompper,

298 F.3d at 898.

AFFIRMED.